Groth v. CenturyLink Disability Plan
Filing
50
OPINION AND ORDER. Plaintiff's Second Motion for Judgment on the Administrative Record, ECF No. 45 , is GRANTED, and Defendant's Motion for Judgment on the Administrative Record, ECF No. 46 , is DENIED. Signed by Magistrate Judge Norah McCann King on 4/25/2016. (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STACIE GROTH,
Plaintiff,
vs.
Civil Action 2:13-cv-1238
Magistrate Judge King
CENTURYLINK DISABILITY PLAN,
Defendant.
OPINION AND ORDER
This is an action under the Employee Retirement Income Security
Act of 1974, 29 U.S.C. § 1132 (“ERISA”), in which plaintiff seeks
recovery of short-term disability benefits under an employer-sponsored
plan.
This matter is now before the Court, with the consent of the
parties pursuant to 28 U.S.C. 636(c), for consideration of the
parties’ second cross-motions for judgment on the administrative
record.
46.
Plaintiff’s Motion, ECF No. 45; Defendant’s Motion, ECF No.
For the reasons that follow, Plaintiff’s Motion is GRANTED and
Defendant’s Motion is DENIED.
I.
Background
This Court previously detailed the procedural and factual
background of this case, including the medical evidence of record.
See Opinion and Order, ECF No. 23.
Plaintiff Stacie Groth began
working for CenturyLink on June 16, 2008 and was a participant in the
CenturyLink Disability Plan (the “Plan”), which is sponsored by
CenturyLink, Inc.
Administrative Record, ECF No. 17, PAGEID 110
(“A.R. I PAGEID ___”); Answer, ECF No. 12, ¶ 1.
The Plan
Administrator, who had authority to, inter alia, determine eligibility
for benefits, construe the terms of the plan and decide appeals,
delegated its authority to a Third Party Administrator, The Reed Group
(‘TPA’ or ‘Reed’), which is also sometimes referred to as CenturyLink
Disability Services (‘CDS’).
Review, ECF No. 19, ¶ 1.
Stipulation Regarding Standard of
“Reed determines eligibility for benefits,
interprets the plan and decides appeals but is not responsible for
paying benefits.”
Id. at ¶ 2.
A participant is eligible for short-
term disability benefits under the Plan if she is disabled and if she
fulfills certain requirements and obligations, including providing to
the TPA documentation supporting total disability (or partial
disability):
Documentation must be from the original dated medical
record and support the claim of total Disability (or
partial Disability requiring reduced hours, if
appropriate). Such documentation shall include: the
Patient’s subjective complaints, the Objective Medical
Documentation, and a plan for treatment or management of
the problem. The documentation must be legible and
sufficient to allow another trained medical professional to
review the case, and see how the original Approved Provider
came to his determination and decisions. Payment of
benefits prior to the receipt of required Objective Medical
Documentation is made in good faith but is subject to
recovery if Objective Medical Documentation is not timely
received or if the claim is not approved.
Administrative Record after Remand, ECF No. 40, PAGEID 585 (“A.R. II
PAGEID ___”).
“Objective Medical Documentation” under the Plan means
“written documentation of observable, measurable and reproducible
findings from examination and supporting laboratory or diagnostic
2
tests, assessment or diagnostic formulation, such as, but not limited
to, x-ray reports, elevated blood pressure readings, lab test results,
functionality assessments, psychological testing, etc.”
A.R. II
PAGEID 576.
On November 5, 2012, plaintiff applied for short-term disability
benefits under the Plan in connection with a planned absence from
October 31, 2012, through “the end of the year.”
119.
A.R. I PAGEID 110,
Plaintiff indicated that she was disabled due to mental health
issues, fibromyalgia, and stress.
A.R. I PAGEID 118.
Plaintiff
identified Jacob Wolf, M.D., as her treating physician and noted that
she had been referred to a pain specialist and therapist/counseling.
A.R. PAGEID 119.
The TPA denied plaintiff’s application for short-term disability
on November 28, 2012, because, despite requests to plaintiff and Dr.
Wolf for information, it had “not been supplied with any medical
information to substantiate you are Disabled.”
A.R. I PAGEID 119,
121, 124-25, 272-73, 291, 302, 318-19.
On November 29, 2012, the TPA received a completed health care
provider statement from Dr. Wolf dated November 19, 2012, which stated
that plaintiff was “currently totally disabled” because of
anxiety/depression and a herniated lumbar disk.
293.
A.R. I PAGEID 126,
Dr. Wolf anticipated that plaintiff would return to work full
time on January 3.
Id.
Plaintiff submitted a written notice of
appeal on November 30, 2012.
A.R. PAGEID 127, 289.
On December 26, 2012, plaintiff was informed that no records had
3
been received from her psychiatrist or pain management specialist and
that her case could be tolled for 45 days in order to permit her to
submit additional medical evidence.
A.R. PAGEID 130.
On January 7,
2013, plaintiff informed the TPA that she had not treated with a
psychiatrist and that, although she had an appointment to see a pain
management specialist on January 22, 2013, she did not want to toll
her case.
A.R. PAGEID 131.
The TPA affirmed the denial of short-term disability benefits on
January 18, 2013.
A.R. PAGEID 177-82.
Plaintiff filed this action on
December 13, 2013.
On December 31, 2014, the Court concluded that the denial of
plaintiff’s claims for benefits was arbitrary and capricious:
Plaintiff was provided written notice that her claim
for benefits under the Plan had been denied. A.R. PAGEID
204-09. However, that notice merely quotes the “mental
health review” by Dr. Goldman [Marcus Goldman, M.D., a
reviewing physician] and the “medical review” by Dr. Gever
[Harold K. Gever, M.D., a reviewing physician] and states
that the “Appeals Board has upheld [plaintiff’s] original
denial of benefits.” Id. The notice did not indicate that
the medical evidence proffered by plaintiff was actually
reviewed, nor did it indicate whether or why the
assessments of Dr. Wolf and Ms. Harris [Barbara Harris,
LISW, plaintiff’s counselor] were rejected. Although there
is “‘nothing inherently objectionable’” about relying on
the opinions of reviewing physicians such as Dr. Goldman
and Dr. Gever, see Javery v. Lucent Techs., Inc. Long Term
Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 702
(6th Cir. 2014) (quoting Calvert, 409 F.3d at 296), the TPA
did not expressly indicate that it was relying on Dr.
Goldman’s or Dr. Gever’s assessments in denying benefits.
The TPA quoted their assessments but did not provide any
discussion of those assessments. Significantly, the TPA’s
decision failed to address the inconsistencies between Dr.
Goldman’s and Dr. Gever’s assessments: although Dr.
Goldman found no documented cognitive limitations that
would impair plaintiff’s ability to perform her job, A.R.
4
PAGEID 198-99, Dr. Gever opined that there are documented
cognitive limitations that would impair plaintiff’s ability
to perform her job, A.R. PAGEID 242-43. Defendant argues
that it was Dr. Goldman’s opinion that was adopted in this
respect, and that Dr. Gever was not qualified to opine on
plaintiff’s mental health, see Defendant’s Response, pp.
12-15, but this explanation is not apparent from either the
decision denying benefits or from the administrative
record.
In affirming the original decision denying benefits,
the TPA may have merely intended to adopt the reasoning of
the November 28, 2012 denial. See Wenner v. Sun Life
Assur. Co. of Canada, 482 F.3d 878, 882-83 (6th Cir. 2007)
(finding that, under 29 U.S.C. § 1133(2), a plan
administrator may not initially deny benefits for one
reason, and then deny benefits for an entirely different
reason, after an administrative appeal, without affording
the claimant an opportunity to respond to the second basis
for the denial of benefits). However, plaintiff was
originally denied benefits because she failed to supply
“any medical information to substantiate [that she is]
Disabled.” A.R. PAGEID 295. Although plaintiff failed to
provide any medical information prior to the November 28,
2012 denial of benefits, she unquestionably provided some
“medical information” prior to the final decision denying
benefits.
The United States Supreme Court has held in the ERISA
context that “courts have no warrant to require
administrators automatically to accord special weight to
the opinions of a claimant’s physician; nor may courts
impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that
conflicts with a treating physician's evaluation.” Black &
Decker Disability Plan, 538 U.S. at 834. However, a plan
administrator cannot arbitrarily disregard the medical
evidence proffered by the claimant. Evans, 434 F.3d at 877
(quoting Black & Decker Disability Plan, 538 U.S. at 834).
The TPA’s decision denying benefits does just that.
Although defendant offers numerous explanations for the
TPA’s denial of plaintiff’s appeal, see Defendant’s Motion,
pp. 14 (“The TPA denied Plaintiff’s claim and appeal
because she submitted only a conclusory opinion from Dr.
Wolf with virtually no supporting objective medical
documentation demonstrating any functional limitations or
impairment of her ability to work.”), 15-16; Defendant’s
Response, p. 13 (“It was not an abuse of discretion for the
TPA to base its decision on the opinion of the psychiatric
5
expert, the failure of Plaintiff’s own therapist to opine
that she was disabled, and Dr. Wolf’s records instead of
Dr. Gever’s comments.”), none of those explanations are
apparent in the TPA’s decision denying benefits. The TPA
denied plaintiff’s appeal and “upheld [her] original denial
of benefits” without any explanation whatsoever. See A.R.
PAGEID 177-82. Absent some explanation for the denial of
benefits or discussion of plaintiff’s medical evidence, the
opinions of Dr. Wolf and Ms. Harris, or the conflict
between Dr. Goldman and Dr. Gever’s opinions, see Evans,
434 F.3d at 877 (indicating that a plan administrator may
choose to rely on the medical opinion of one doctor over
another, so long as the administrator offers a reasonable
explanation based on the evidence for its decision);
Roumeliote v. Long Term Disability Plan for Emps. of
Worthington Indus., 475 F. Supp. 2d 742, 746 (S.D. Ohio
2007), aff'd, 292 F. App'x 472 (6th Cir. 2008), the Court
cannot say that the denial of benefits was “the result of a
deliberate principled reasoning process,” see Evans, 434
F.3d at 876, or that the Plan provided plaintiff with
“specific reasons” for the denial of benefits. See 29
U.S.C. § 1133(1); Black & Decker Disability Plan, 538 U.S.
at 830. Accordingly, this Court concludes that defendant’s
denial of plaintiff’s claim for benefits was arbitrary and
capricious.
Opinion and Order, ECF No. 23, pp. 14-17.
The Court therefore
remanded the matter to the TPA “to conduct a full and fair review and
to issue a decision that reflects a deliberate and principled
reasoning process.”
Id. at 17.
Following remand, plaintiff supplemented the administrative
record with nearly 1000 pages of medical records from eleven different
providers in addition to Dr. Wolf and Ms. Harris.
II.
See generally A.R.
Warren Taff, M.D., M.P.H., a board certified psychiatrist, and
Richard Kaplan, M.D., a board certified physical medicine and
rehabilitation specialist, reviewed the record for the TPA.
PAGEID 1595-1618.
A.R. II
In a letter dated April 21, 2015, the TPA advised
that plaintiff’s claim for benefits was again denied.
6
A.R. II PAGEID
1619-24.
In a written opinion dated May 5, 2015, an administrative law
judge with the Social Security Administration found that plaintiff’s
severe impairments, which consist of lumbar degenerative disc
disease/scoliosis/spondylosis, fibromyalgia, anxiety, and depression,
A.R. II PAGEID 1685, rendered her disabled within the meaning of the
Social Security Act since January 31, 2013. A.R. PAGEID II 1690.
On May 19, 2015, plaintiff forwarded the Social Security
Administration decision to the TPA and requested reconsideration of
the decision denying plaintiff’s claim for benefits under the Plan.
A.R. II PAGEID 1678.
Plaintiff also advised that she would forward a
complete copy of her Social Security disability file as soon as she
received it.
Id.
On June 8, 2015, the TPA advised that it would not
reopen its administrative record or reconsider its decision.
A.R. II
PAGEID 1706.
II.
Evidence of Record1
A.
Pre-remand evidence
This Court has previously set out in detail the medical evidence
presented prior to the order of remand.
23, pp. 4-8.
Opinion and Order, ECF No.
Dr. Wolf, plaintiff’s treating physician, completed a
health care provider’s statement of disability on November 19, 2012.
A.R. I PAGEID 293.
According to Dr. Wolf, plaintiff was “currently
totally disabled” due to a herniated disk with radiculopathy and
anxiety/depression.
Id.
Dr. Wolf noted that plaintiff’s medications
1
The Court’s discussion of the evidence is limited to the issues presented
in this case.
7
included Wellbutrin, Cymbalta, Trazodone, and Klonopin and that she
“plans on seeing a psychiatrist, seeing currently a counselor, will go
to pain management.”
Id.
Dr. Wolf concluded that plaintiff was
unable to work even with restrictions but that she anticipated a
return to full time work on January 3.
Id.
In a letter dated December 20, 2012, Ms. Harris, plaintiff’s
counselor, indicated that plaintiff is “currently suffering from both
major depression and anxiety in response to a serious family situation
and some chronic health/pain issues.”
A.R. I PAGEID 270.
Ms. Harris
also commented that plaintiff has “reported symptoms consistent with
the diagnosis of Panic Disorder.”
Id.
Ms. Harris described
plaintiff’s symptoms and limitations as follows:
Her symptoms, both physical and mental, are causing her to
be unable to receive adequate sleep, safely drive a car or
sustain a focus/concentration for any length of time.
Additionally, it is my understanding that her doctor has
referred her to a pain specialist for a consultation
regarding her medications. Her current medications may be
decreasing her ability of function at her usual high level
of competency.
Mrs. Groth is hopeful that once her
medications are adjusted properly and if she is able to
attend counseling sessions, that she would be able to begin
working again in early January. Apparently, her doctor has
told her it will likely take her a few weeks longer to be
able to drive safely once again.
Id.
Harold K. Gever, M.D., reviewed the record and, on January 11,
2013, completed a “physician file review.”
A.R. I PAGEID 241-44.
According to Dr. Gever, there “is no objective medical information . .
. which documents any evidence of functional limitations supporting
[plaintiff’s] inability to work from 10/31/2012 through [the date of
8
the review.]”
A.R. I PAGEID 242.
Dr. Gever opined that plaintiff
would be able to work without restrictions, but that her symptoms of
anxiety/depression may affect her ability to perform the essential
functions of her job.
A.R. PAGEID 242-43.
As for Ms. Harris’s
opinion that medications may adversely affect plaintiff, Dr. Gever
found that “Dr. Wolf’s office notes provide no such statements with
reference to medications he is prescribing for any of [plaintiff’s]
medical complaints/diagnoses.”
A.R. I PAGEID 243.
Although plaintiff
“may meet the criteria for a short term disability on the basis of a
behavioral health issue (anxiety/depression and/or panic disorder),
there is no objective medical documentation supporting such disability
due to a medical condition as outlined in Dr. Jacob Wolf’s office
notes.”
Id.
Marcus Goldman, M.D., reviewed the record and, on January 17,
2013, completed a “peer file review.”
A.R. I PAGEID 197-200.
Dr.
Goldman saw no evidence documenting functional limitations or an
inability to work from October 31, 2012, through the date of his
review:
There are no objective data to support impairment.
It
should be pointed out that there is very little information
for the dates in question — a time period covering almost 3
months. The claimant presented to the emergency room with
anxiety towards the end of October 2012.
Notes from the
claimant’s primary care provider either find the claimant
either completely intact or with a depressed affect.
A
letter from the claimant’s therapist is unaccompanied by
therapy progress notes or mental status examinations.
There are no measured data to support impairment in focus
or concentration and no objective data to support lethargy
or sedation from the claimant’s medications. Although the
claimant was seen in the emergency room for what was said
9
to be anxiety the information in this record, or the dates
in question does not establish the presence of a mental
disorder of such severity as to preclude this claimant from
functioning or working. For instance, there is no evidence
of impairment in activities or independent activities of
daily living as a result of mental disorder. The claimant
is
not
suicidal,
vegetative,
aggressive,
thought
disordered, or with objective evidence of a grossly
impairing anxiety condition. The data do not suggest that
this claimant required more emergent or acute transition to
a more intensive level of care.
As above, there are no
psychotherapy notes, no treatment plans, no measured or
measurable goals and strategies to return this claimant to
work.
Therapeutic treatment modalities are not specified.
It is not suggested that there has been any aggressive
alteration in treatment planning. It is lastly noted that
the expression of emotions within the context of a doctor’s
office or a therapy session is not in and of itself
sufficient to establish global impairment. Rather, it can
constitute appropriate use of medical or therapeutic time.
Given the totality of the data in the absence of dedicated
mental health notes for review, functional impairment and
the inability to work is not objectively supported.
A.R. I PAGEID 198.
Dr. Goldman also rejected Ms. Harris’s “suggested impairment in
focus and concentration,” finding a lack of “measured data to support
impairing cognitive dysfunction.”
A.R. I PAGEID 198-99.
Similarly,
Dr. Goldman rejected Ms. Harris’s opinion that medications may
adversely affect plaintiff, reasoning that “there are no findings on
examination that would support lethargy or somnolence, altered
sensorium, measured cognitive dysfunction, slowing or confusion.”
A.R. I PAGEID 199.
According to Dr. Goldman, plaintiff was able to
work without restriction.
B.
Id.
Post-remand evidence
As part of the additional evidence submitted following remand,
plaintiff offered evidence related to a diagnosis of fibromyalgia.
10
Marc. A. Antonchak, M.D., examined plaintiff on December 3, 2010 upon
referral by Dr. Wolf.
A.R. II PAGEID 663-65.
Plaintiff reported that
“for the last couple of months she has actually had worsened
arthralgias and myalgias mostly of her back, neck, arms, elbows and
sometimes thighs.”
A.R. II PAGEID 664.
Dr. Antonchak noted that
plaintiff had 16 of 18 tender points and found that “a lot of her
symptoms are compatible with her diagnosis of fibromyalgia.”
A.R. II
PAGEID 664-65.
Plaintiff saw Dr. Antonchak again on June 13, 2011, and reported
musculoskeletal pain, particularly bilateral hip pain and persistent,
generalized body aches.
A.R. II PAGEID 667.
Dr. Antonchak prescribed
Neurontin for pain and recommended that plaintiff speak with a
counselor or psychiatrist.
Id.
On May 7, 2012, Yeshwant P. Reddy, M.D., evaluated plaintiff and
diagnosed, inter alia, fibromyalgia syndrome.
A.R. II PAGEID 1052.
During a follow-up visit on September 3, 2013, plaintiff reported
increasing back and leg pain.
injections in October 2013.
Plaintiff underwent epidural steroid
A.R. II PAGEID 1035.
On October 27,
2014, Dr. Reddy opined that “a good portion of her pain is indeed
related to fibromyalgia in addition to her spinal conditions.” Id.
Medications included hydrocodone, Cymbalta, and ibuprofen. A.R. II
PAGEID 1045.
Plaintiff also submitted the reports of Daniel L. Davis, Ph.D., a
psychologist, and of Mark Fettman, M.D., a psychiatrist, both of whom
11
examined plaintiff at the request of “Exam Coordinators Network.”2
A.R. II PAGEID 702-16, 718-22.
In a report dated August 8, 2011,
following his examination of July 29, 2011, Dr. Davis indicated that
plaintiff’s “affect (emotional presentation) was appropriate and
reactive to a stated generally anxious and depressed emotional state
that she told me is chronic in nature and has been worsened by her
physical discomfort.”
A.R. II PAGEID 709.
Plaintiff had reported
symptoms associated with depression, such as limited appetite,
hopelessness, loss of interest or pleasure, loss of sexual interest,
poor concentration and irritability, but she denied suicidal and
homicidal ideation.
A.R. II PAGEID 710.
Referring to the results of
plaintiff’s MMPI, Dr. Davis first cautioned that the “scores on the
MMPI 2RF validity scales raise concerns about the possible impact of
unscoreable responses and over-reporting (specifically, of somatic
and/or cognitive symptoms) on the validity of this protocol.”
PAGEID 712.
A.R. II
According to Dr. Davis, plaintiff’s “scores on the
substantive scales indicate somatic and cognitive complaints and
emotional dysfunction.”
Id.
Plaintiff’s “[c]ognitive complaints
include difficulties in memory and concentration,” id., and her
“[e]motional-internalizing findings include risk for suicidal
ideation, demoralization, depression, helplessness and hopelessness,
self-doubt, stress and worry, and anger.”
Id.
Dr. Davis went on:
[Plaintiff] reported a much larger number of somatic
2
Reed Group’s name appears at the top of Dr. Davis’s report. A.R. II PAGEID
702-716. Plaintiff suggests that Reed Group “may have instigated the [Davis
and Fettman] examinations as part of an earlier claim review.” Plaintiff’s
Motion, PAGEID 1764 n.4.
12
symptoms rarely described by individuals with genuine
medical conditions. She also provided an unusual
combination of responses that is associated with noncredible reporting of somatic and/or cognitive symptoms.
This pattern of responding may also occur in individuals
with substantial medical problems who report credible
symptoms, but it could also reflect exaggeration. In
individuals with no history or other corroborating evidence
of physical health symptoms this likely indicates noncredible reporting of somatic symptoms. Scores on the
somatic scales (Somatic Complaints, Malaise,
Gastrointestinal Complaints, Head Pain Complaints, and
Neurological Complaints and the Cognitive complaints scale)
should be interpreted in light of this caution.
There were no indications of under reporting of symptoms.
A.R. II PAGEID 713.
Dr. Davis also indicated that plaintiff “is at
risk for suicidal ideation although she did not endorse any of the
MMPI 2 RF Suicidal/Death scale items[,]” “is likely to feel
overwhelmed[,]” “very unlikely to be self-reliant[,]” “likely to be
stress-reactive and worry prone and to engage in obsessive rumination”
as well as “likely to have problems with anger, irritability, and low
tolerance for frustration[.]”
A.R. II PAGEID 714.
In a report dated August 8, 2011, following his examination of
plaintiff, Dr. Fettman stated:
Based on my evaluation of her [plaintiff] and a review of
her records, I would state that the patient has a Mood
Disorder secondary to physical illness and I feel that she
is disabled currently from doing her job. She is on a
great deal of medication as stated above. Taking these
medications, along with her physical illness, would further
make it impossible for her to work in an effective manner
because these medications are sedating.
A.R. II PAGEID 719.
June 24, 2014, treatment notes by Ms. Harris, plaintiff’s
counselor, reflect increased depression and anxiety as well as
13
continued complaints of pain.
A.R. II PAGEID 1032.
Plaintiff’s
condition had improved by July 2014, but Ms. Harris noted symptoms of
anxiety and depression.
A.R. II PAGEID 1033.
In September 2014, Ms.
Harris continued to note symptoms of depression and anxiety.
Id.
III. The Plan
The Plan defines disability as follows:
For purposes of STD benefits, when a Participant provides
Objective Medical Documentation supporting that, due to a
medical condition and related limitation(s), he is unable
to perform the normal job duties of his regular job or any
other job to which he could be assigned (with or without
modification of those duties). The Objective Medical
Documentation must support both the medical condition and
any actual limitation(s) caused by the medical condition.
CenturyLink Disability Plan, § 1.15(a), A.R. I PAGEID 47.
The Plan
defines “Objective Medical Documentation” as “written documentation of
observable, measurable and reproducible findings from examination and
supporting laboratory or diagnostic tests, assessment or diagnostic
formulation, such as, but not limited to, x-ray reports, elevated
blood pressure readings, lab test results, functionality assessments,
psychological testing, etc.”
IV.
Id. at § 1.31, A.R. I PAGEID 52.
The Administrative Decision Following Remand
By letter dated April 21, 2015, the TPA Appeals Board issued a
decision upholding the denial of plaintiff’s claim for short-term
disability benefits.
A.R. II PAGEID 1619-24.
After summarizing the
case history and reviewing the Plan’s definition of “disability” and
eligibility requirements for benefits, A.R. II PAGEID 1619-20, the
letter details the medical evidence considered by and the opinions of
its two independent physician reviewers, Drs. Kaplan and Taff, upon
14
whose opinions the TPA relied.
A.R. II PAGEID 1621.
Because Ms. Groth’s providers did not supply medical
information to substantiate that she is Disabled, as
defined by CenturyLink’s Short Term Disability Plan, which
is confirmed by Dr. Kaplan and Dr. Taff’s independent peer
review, Reed Group relies on Dr. Kaplan and Dr. Taff’s
opinion that there was no documented objective medical
evidence to support functional limitations and the
inability to work from October 31, 2012 through February
04, 2014.
A.R. II PAGEID 1623.
The letter went on to note that, although
plaintiff had applied for Social Security disability benefits, “[a]s
of the date of this letter[,] Reed Group has not been informed of the
Social Security Administration’s determination.”
Id.
The letter
concludes by indicating, “The decision in this matter is a final
adverse benefit determination” and informing plaintiff of her right to
file suit under ERISA.
Id.
In response to plaintiff’s May 19, 2015, request for
reconsideration of the denial of benefits in light of the May 5, 2015,
favorable decision of the Social Security Administration, A.R. II
PAGEID 1678, the TPA declined to reopen its administrative record or
reconsider. The TPA offered three reasons for this decision.
PAGEID 1706.
A.R. II
First, the TPA explained that the decision of the Social
Security Administration related to a different period of time (i.e.,
January 31, 2013 to the present) than did plaintiff’s request for
short-term disability benefits (i.e., “between October 31, 2012 and
February 04, 2013”).
Id.
Second, plaintiff’s request that the TPA
consider the Social Security decision was untimely:
the TPA issued
its decision on April 21, 2015 and its administrative record was
closed by the time of plaintiff’s May 19, 2015 request for
15
reconsideration.
Id.
Finally, the Social Security Administration’s
standards of disability are different than those of the Plan.
V.
Id.
Standard
A challenge to an ERISA plan’s denial of benefits is reviewed de
novo unless, as is the case here, the benefit plan gives the
administrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.
Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir.
2003) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)).
“If a plan grants such discretionary authority, the plan
administrator’s decision to deny benefits is reviewed under the
deferential ‘arbitrary and capricious’ standard of review.’”
Id.
(quoting Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir.
1998)).
“This standard ‘is the least demanding form of judicial
review of administrative action . . . .
When it is possible to offer
a reasoned explanation, based on the evidence, for a particular
outcome, that outcome is not arbitrary and capricious.’”
Evans v.
UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006) (internal
quotations omitted) (quoting Killian v. Healthsource Provident Adm’rs,
Inc., 152 F.3d 514, 520 (6th Cir. 1998)).
“The arbitrary-and-
capricious standard, however, does not require [the Court] merely to
rubber stamp the administrator’s decision.”
Jones v. Metro. Life Ins.
Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing McDonald v. W.-S. Life
Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)).
Instead, “a decision
will be upheld ‘if it is the result of a deliberate principled
16
reasoning process, and if it is supported by substantial evidence.’”
Evans, 434 F.3d at 876 (internal quotations omitted) (quoting Killian,
152 F.3d at 520).
This requires the reviewing court to weigh “the
quality and quantity of the medical evidence and the opinions on both
sides of the issues.”
McDonald, 347 F.3d at 172.
The parties previously stipulated that the “denial of Plaintiff’s
claim for benefits should be reviewed under the arbitrary and
capricious standard of review.”
Review, ¶ 3.
Stipulation Regarding Standard of
Following remand, the parties again agree that this is
the appropriate standard of review.
See, e.g., Plaintiff’s Motion,
PAGEID 1768; Defendant’s Motion, PAGEID 1785.
VI.
Discussion
“ERISA was enacted to promote the interests of employees and
their beneficiaries in employee benefit plans, and to protect
contractually defined benefits.”
Bruch, 489 U.S. at 113 (internal
quotation marks and citations omitted).
“The Act furthers these aims
in part by regulating the manner in which plans process benefits
claims.”
Black & Decker Disability Plan, 538 U.S. at 830.
Every plan
must
(1) provide adequate
or beneficiary whose
been denied, setting
denial, written in a
the participant, and
notice in writing to any participant
claim for benefits under the plan has
forth the specific reasons for such
manner calculated to be understood by
(2) afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full and
fair review by the appropriate named fiduciary of the
decision denying the claim.
17
29 U.S.C.A. § 1133.
See also Black & Decker Disability Plan, 538 U.S.
at 830.
In the case presently before the Court, the initial written
notice of denial of benefits “did not indicate that the medical
evidence proffered by plaintiff was actually reviewed, nor did it
indicate whether or why the assessments of Dr. Wolf or Ms. Harris were
rejected.”
Opinion and Order, ECF No. 23, p. 14.
Without some
explanation, the Court was unable to determine whether the initial
denial of benefits was the result of a “deliberate principled
reasoning process” or that the Plan provided plaintiff with “specific
reasons” for the denial of benefits.
Id. at 16-17.
The Court
therefore remanded this action to the TPA “to conduct a full and fair
review and to issue a decision that reflects a deliberate and
principled reasoning process.”
Id. at p. 17.
Defendant takes the position that the TPA performed a full and
fair review and that the deficiencies previously identified by this
Court have been remedied. Defendant’s Motion, PAGEID 1786-97.
See
also Defendant’s Response in Opposition to Plaintiff’s Second Motion,
ECF No. 48 (“Defendant’s Opposition”), PAGEID 1834-40.
Plaintiff
contends, however, that the TPA’s decision to deny benefits following
remand was arbitrary and capricious for a number of reasons.
Plaintiff’s Motion, PAGEID 1768-78.
See also Plaintiff’s Memorandum
in Opposition to Defendant’s Second Motion, ECF No. 47 (“Plaintiff’s
Opposition”), PAGEID 1822-24.
18
A.
The TPA’s Review Period
Plaintiff first contends that the TPA unreasonably limited its
review period and improperly excluded relevant evidence. Plaintiff’s
Motion, PAGEID 1769-70; Plaintiff’s Opposition, PAGEID 1822-24.
In
the written notice denying plaintiff’s claim for benefits following
remand, the TPA advised that “we have completed our review of your
client’s appeal for the denial of her claim for short term disability
(STD) benefits for the time period of October 31, 2012 through
February 04, 2013.”
A.R. II PAGEID 1619.
The TPA further advised
that “[a]ll of the documentation received was reviewed in the appeals
process but only the relevant medical was considered for the
disability time period of October 31, 2012 through February 04, 2013.”
Id. Defendant responds that it was plaintiff herself who limited the
original time frame of her claim.
She applied for benefits on October
31, 2012, stating that she would be out of work “through the end of
the year;” she never indicated that she was disabled after “early
January.”
Defendant’s Opposition, PAGEID 1834-36.
Defendant also
notes that plaintiff had the opportunity to toll her case in order to
be seen by specialists and to submit additional evidence, but that she
failed to do so.
Id. at PAGEID 1835-36. According to defendant,
“[m]ost of the medical records submitted were outside the relevant
time frame or for unrelated issues.”
Defendant’s Motion, PAGEID 1789.
Plaintiff complains that the TPA appeared to distinguish between the
evidence that was “reviewed” and the evidence that was “considered,”
and suggests that relevant post-disability evidence was not
19
considered.
Plaintiff’s Motion, PAGEID 1769-70; Plaintiff’s
Opposition, PAGEID 1822-24.
Medical evidence developed after the applicable benefit period
“is relevant, but only to the extent that it sheds light on a
claimant’s condition during” the benefit period at issue. Hayden v.
Martin Marietta Materials, Inc. Flexible Benefits Program, 763 F.3d
598, 605 (6th Cir. 2014). “‘The primary benefit of such evidence’ is
that it ‘speaks to the credibility and accurateness of the earlier
evaluations and opinions.’”
Id. (quoting Javery v. Lucent Techs.,
Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686,
690 n.1 (6th Cir. 2014)).
In the case presently before the Court, plaintiff specifically
contends that evidence that she was “in tears” because of pain and
that certain post-disability medical evidence from October 2013 and
throughout 2014 is relevant to Dr. Wolf’s opinion and Ms. Harris’s
December 2012 assessment.
Plaintiff’s Motion, PAGEID 1769.
Plaintiff
specifically points to two earlier diagnoses of fibromyalgia and two
in-person psychiatric evaluations as evidence “of unquestioned
relevance,”
id. at PAGEID 1770, and argues that the TPA acted
arbitrarily and capriciously in ignoring this evidence.
1769-70.
Id. at PAGEID
Plaintiff’s arguments are not well-taken.
Even assuming the relevance of this evidence, the Court cannot
say that the TPA disregarded this evidence.
As noted supra, the TPA
stated that “[a]ll of the documentation received was reviewed.”
II PAGEID 1619.
Although plaintiff makes much of the TPA’s word
20
A.R.
choice in stating that it “considered” “only the relevant medical
[evidence] . . . for the disability time period of October 31, 2012
through February 04, 2013[,]” the Court is not persuaded that this
language establishes that the TPA disregarded medical evidence dated
before and after the benefits period.3
For example, defendants’
reviewing physicians, Drs. Taff and Kaplan, received for review many
medical records generated outside the benefits period.
1600-06, 1612-18.
A.R. II PAGEID
Notably, Dr. Taff specifically referenced medical
care prior to the relevant period, A.R. II PAGEID 1595-97, and Dr.
Kaplan referred to medical evidence dated both before and after the
relevant period, A.R. II PAGEID 1607-10.
In denying plaintiff’s claim
for benefits, the TPA specifically relied on the reports of these
doctors.
A.R. II PAGEID 1621.
Based on this record, the Court is not
persuaded that the TPA acted arbitrarily or capriciously by
disregarding relevant medical evidence that was dated outside the
relevant benefits period.
B.
The TPA’s adoption of its reviewers’ opinions
Plaintiff next contends that the TPA’s adoption of the opinions
of its reviewers, Drs. Taff and Kaplan, was unreasonable.
Plaintiff’s
Motion, PAGEID 1770-74; Plaintiff’s Opposition, PAGEID 1829.
The
Court shall address each reviewer in turn.
3
To the extent that plaintiff contends that the TPA improperly disregarded the
Social Security’s decision that was issued after the TPA’s denial of
plaintiff’s claim for short-term disability benefits, that issue is addressed
infra.
21
1.
Dr. Taff
Plaintiff first complains that reliance on the report of Dr.
Taff, a board certified psychiatrist, is flawed because he performed
only a review of the file, which is often an invalid basis upon which
to base a mental health decision.
Plaintiff’s Motion, PAGEID 1771.
Plaintiff’s argument is well-taken.
“[R]eliance on a file review does not, standing alone, require
the conclusion that [the plan administrator] acted improperly[.]”
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005).
Indeed, there is “nothing inherently objectionable about a file review
by a qualified physician in the context of a benefits determination.”
Id. at 296.
However, when a plan administrator relies on file
reviews, rather than on a physical examination, that decision is a
factor that a court may consider when determining if the administrator
acted in an arbitrary and capricious manner.
Kalish v. Liberty
Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir.
2005); Rose v. Hartford Fin. Servs. Grp., Inc., No. 07-5423, 268 F.
App’x 444, at *450 (6th Cir. Mar. 11, 2008).
More specifically, “file
reviews are questionable as a basis for identifying whether an
individual is disabled by mental illness.”
Javery v. Lucent Techs.,
Inc. Long Term Disability Plan for Mgmt. or LBA Employees, 741 F.3d
686, 702 (6th Cir. 2014).
This is because, unlike other medical
professionals, psychiatrists rely on subjective symptoms to treat the
patient’s mental health condition:
22
Courts discount the opinions of psychiatrists who have
never seen the patient for obvious reasons. Unlike
cardiologists or orthopedics, who can formulate medical
opinions based upon objective findings derived from
objective clinical tests, the psychiatrist typically treats
his patient's subjective symptoms. . . . [W]hen a
psychiatrist evaluates a patient's mental condition, “a lot
of this depends on interviewing the patient and spending
time with the patient,” . . . a methodology essential to
understanding and treating the fears, anxieties,
depression, and other subjective symptoms the patient
describes.
Smith v. Bayer Corp. Long Term Disability Plan, Nos. 06–6136, 06–6468,
275 F. App’x 495, at *508 (6th Cir. Apr. 24, 2008) (internal quotation
marks and citations omitted).
See also James v. Liberty Life Assur.
Co. of Boston, No. 13–2625, 582 F. App’x 581, 589 (6th Cir. Sept. 4,
2014) (“Unlike most doctors . . . a psychiatrist must treat a
patient’s subjective symptoms by interviewing the patient and spending
time with the patient so as to understand and treat the subjective
symptoms described by the patient.”).
It follows that “reliance on a
file review is inappropriate where a claims administrator disputes the
credibility of a claimant’s complaints.”
Javery, 741 F.3d at 702.
Courts in this district and other district courts within this
circuit have concluded that a plan administrator acts arbitrarily and
capriciously when it relies on only file reviews to deny a claim for
disability benefits based on mental illness.
See, e.g., Haning v.
Hartford Life & Accident Ins. Co., No. 2:14-CV-308, 2015 WL 5729342,
at *12 (S.D. Ohio Sept. 30, 2015), appeal dismissed (Dec. 1, 2015)
(“Thus, without ever examining Haning, and in the face of directly
conflicting evidence from her therapist, Dr. Givens concluded that she
23
could return to work immediately.
This approach adds to the evidence
that Hartford’s decision was arbitrary and capricious.”); Rohr v.
Designed Telecommunications, Inc., No. 2:08-CV-345, 2009 WL 891739, at
*10 (S.D. Ohio Mar. 30, 2009) (“Plaintiff’s treating therapist
specifically concluded that her depression prevented her from engaging
in the required duties of her position . . .[the defendant insurer’s]
rejection of these opinions, adds to the evidence before this Court
that its termination of Plaintiff’s disability benefits was arbitrary
and capricious.”); Allen v. AT & T Disability Income Program, No.
3:08-CV-884, 2009 WL 2366418, at *14 (M.D. Tenn. July 29, 2009) (“[The
claims administrator’s] dependence on the mental health evaluations
provided by non-treating physicians was unreasonable, especially
considering that it had the option to order an independent medical
examination.”).
Similarly, in the case presently before the Court, the TPA relied
on a file review when it denied plaintiff’s claim for benefits even
though Ms. Harris, plaintiff’s treating therapist, noted that
plaintiff suffered from major depression and anxiety and plaintiff
reported symptoms consistent with panic disorder.
A.R. I PAGEID 270.
Ms. Harris reported that these symptoms disrupted plaintiff’s sleep
and interfered with her ability to safely drive a car and to sustain
concentration for any length of time.
Id.
Ms. Harris also suggested
that plaintiff’s medications may decrease her ability to function at
her usual high level of competency.
Id.
Ms. Harris went on to note
that plaintiff “is hopeful that once her medications are adjusted
24
properly and if she is able to attend counseling session, that she
would be able to begin working again in early January.”
Id.
In the
face of this contrary evidence and without examining plaintiff, Dr.
Taff nevertheless concluded that plaintiff is able to work.
PAGEID 1621.
A.R. II
This fact tends to suggest that the TPA’s denial of
plaintiff’s application for disability benefits was arbitrary and
capricious.
See, e.g., Javery, 741 F.3d at 702; Haning, 2015 WL
5729342, at *12; Rohr, 2009 WL 891739, at *10; Allen, 2009 WL 2366418,
at *14.
Plaintiff next contends that Dr. Taff’s report reveals evidence
of “cherry-picking.”
Plaintiff’s Motion, PAGEID 1771-72.
“[P]lan
administrators may not engage in a ‘selective review of the
administrative record’ . . .
by ignoring evidence of disability or
giving undue weight to evidence favoring denial[.]”
Godmar v.
Hewlett-Packard Co., No. 15-1480, 2015 WL 8290186, at *5 (6th Cir.
Dec. 9, 2015) (internal citations omitted).
“Cherry-picking”
undermines a deliberate or principled process:
“When an administrator
‘focus[es] 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 contradict[s] its basis for denying coverage,’
the administrator’s ‘decision-making process is not deliberate or
principled.’”
Id. (quoting Metro. Life Ins. Co. v. Conger, 474 F.3d
258, 265 (6th Cir. 2007)(emphasis in original).
In the case presently before the Court, Dr. Taff summarized Dr.
Fettman’s psychiatric exam as follows:
25
On 08/14/2011, the claimant underwent a psychiatric
examination by Dr. Mark Fetterman (Psychiatrist).4 Mental
status examination noted the claimant was alert and
oriented times three; pleasant and cooperative; had no
hallucinations or delusions; felt dysphoric and depressed;
denied suicidal ideation and had no thought disorders. Dr.
Fetterman opined the claimant had a mood disorder secondary
to physical illness.
A.R. II PAGEID 1597.
Plaintiff contends that Dr. Taff engaged in
“cherry-picking” because he omitted from this summary Dr. Fettman’s
opinion that plaintiff’s mental illness rendered her disabled.
Plaintiff’s Motion, PAGEID 1772 (citing A.R. II PAGEID 719) (“[T]he
patient has a Mood Disorder secondary to physical illness and I feel
that she is disabled currently from doing her job.”).
Defendant
disagrees, arguing that plaintiff “makes too much of” Dr. Fettman’s
report, which was issued more than one year prior to the relevant time
period.
Defendant’s Opposition, PAGEID 1838.
Yet Dr. Taff apparently
regarded Dr. Fettman’s report as relevant because he discussed it and
yet, in doing so, Dr. Taff ignored evidence of plaintiff’s disability
and highlighted evidence favoring a denial of benefits, i.e., that
plaintiff was alert and oriented, did not suffer from hallucinations
or delusions, and denied suicidal ideation.
The fact that Dr.
Fettman’s report was issued prior to the relevant time period does not
explain Dr. Taff’s disregard of Dr. Fettman’s opinion of disability.
This omission is another factor suggesting that the TPA’s decision was
not the result of a deliberate or principled decision-making process.
Godmar, 2015 WL 8290186, at *5.
4
Dr. Taff refers to Dr. “Fetterman,” but the correct spelling is “Fettman.”
See, e.g., A.R. II PAGEID 721.
26
Plaintiff also argues that Dr. Taff improperly focused on
“slivers of information” in Dr. Davis’s report that could be read to
support the TPA’s denial of coverage.
1772.
Plaintiff’s Motion, PAGEID
In addressing Dr. Davis’s report, Dr. Taff, inter alia, noted:
On 07/29/2011, the claimant underwent a psychological
evaluation by Dr. David Davis,5 PhD, ABPP (Psychologist).
The claimant provided a history of treatment for depression
dating back to 2002 when Wellbutrin was prescribed. She
reported on her medical issues and history of fibromyalgia
and back pain. . . . Affect was appropriate and reactive to
a stated generally anxious and chronically depressed state.
. . . Social interaction was friendly and cooperative.
There was no evidence of hallucinations, delusions or
psychosis. There were no problems with attention and
concentration. The claimant was not distractible and was
oriented to person, place, time and situation. Her fund of
knowledge indicated average intellectual function. Short
and long term recall was adequate and the claimant had
capacity for abstract verbal reasoning. Insight and
judgment were adequate.
A.R. II PAGEID 1596-97.
Plaintiff complains that Dr. Taff made no mention of “the ample
evidence of depression, anxiety and anger” in Dr. Davis’ report.
Plaintiff’s Motion, PAGEID 1772 (citing A.R. II PAGEID 1597).
Defendant disagrees, again arguing that the report was issued more
than one year prior to the relevant time period.
Opposition, PAGEID 1838.
Defendant’s
Again, this Court is unpersuaded by this
argument because Dr. Taff considered and relied on Dr. Davis’s report
in reaching his conclusion.
Defendant also attempts to distinguish this case from Godmar
because Dr. Davis expressed no opinion as to plaintiff’s disability
5
The record indicates that Dr. Davis’ first name is Daniel.
702.
27
A.R. II PAGEID
and reported unremarkable examination findings as well as evidence
that plaintiff’s responses may not be credible.
39.
Id. at PAGEID 1838-
However, it is clear that Dr. Taff failed to address other
evidence in Dr. Davis’ report that could support a conclusion of
disability, namely, evidence of plaintiff’s depression, stress, and
anger.
A.R. II PAGEID 712-14, 1596-98.
Plaintiff also properly challenges Dr. Taff’s dismissal of Ms.
Harris’s report as not “describ[ing] how any of [plaintiff’s] selfreported symptoms of depression would directly and adversely impact
her ability to do her normal work-related activities,” A.R. II PAGEID
1598, in light of her observation that plaintiff’s “symptoms are
causing her to be unable to receive adequate sleep, safely drive a car
or sustain focus/concentration for any length of time.”
A.R. I PAGEID
270.
In short, Dr. Taff’s selective review of the record lends support
to plaintiff’s contention that the TPA’s decision to deny benefits was
not the result of a deliberate or principled decision-making process.
See Godmar, 2015 WL 8290186, at *5.
2.
Dr. Kaplan
Plaintiff also criticizes the TPA’s reliance on Dr. Kaplan, a
board certified physical medicine and rehabilitation specialist,
because he is a professional file reviewer.
PAGEID 1772-73.
Plaintiff’s Motion,
As discussed supra, “reliance on a file review does
not, standing alone, require the conclusion that [the plan
administrator] acted improperly[.]”
28
Calvert v. Firstar Fin., Inc.,
409 F.3d 286, 295 (6th Cir. 2005).
Accordingly, Dr. Kaplan’s status
as a file reviewer, by itself, is not evidence that the TPA acted
arbitrarily or capriciously when it relied on his opinion.
Plaintiff also contends that Dr. Kaplan improperly questioned the
credibility of plaintiff’s complaints of pain when he noted that her
presentation was “essentially subjective[.]”
PAGEID 1773.
This Court agrees.
Plaintiff’s Motion,
Dr. Kaplan’s report includes the
following:
Regarding fibromyalgia, this claimant has been noted to
have multiple tender points, but without any impairing
limitations of gait, range of motion, or strength.
Numerous exams, including that of Dr. Antonchak of
12/03/2010 and Dr. Y Reddy from 05/08/2012 through
10/27/2014 note reports of pain with some postural
activities, but not impairing neurological or
musculoskeletal findings on examination. The claimant was
noted to have mild discogenic disease and mild facet
arthropathy on MRI imagining of the lumbar spine reviewed
at emergency room visit of 02/01/2012; these are agetypical and not functionally limiting findings. Overall,
from a physical medicine and rehabilitation perspective,
the claimant’s presentation is essentially subjective, with
no clear neurological or muscular impairing findings.
A.R. II PAGEID 1610-11.
“[R]eliance on a file review is inappropriate where a claims
administrator disputes the credibility of a claimant’s complaints.”
Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or
LBA Emps., 741 F.3d 686, 702 (6th Cir. 2014).
See also Zuke v. Am.
Airlines, Inc., No. 15-3465, 2016 WL 1258220, at *5 (6th Cir. Mar. 31,
2016) (“This Court has already recognized the arbitrary nature of a
reviewing physician’s determination about a claimant’s pain.”);
Godmar, 2015 WL 8290186, at *9 (“File reviews are particularly
29
troubling when the administrator’s consulting physicians — who have
never met the claimant — discount the claimant’s limitations as
subjective or exaggerated.”).
Absent an examination, a plan should
not make a credibility determination about a plaintiff’s reports of
pain even under an objective-evidence standard.
Shaw v. AT&T Umbrella
Ben. Plan No. 1, 795 F.3d 538, 550 (6th Cir. 2015) (“Because chronic
pain is not easily subject to objective verification, the Plan’s
decision to conduct only a file review supports a finding that the
decision-making was arbitrary and capricious.”); Godmar, 2015 WL
8290186, at *10 (citing Shaw, 795 F.3d at 550).
“In the context of a
claimant with self-reported symptoms, the plan administrator must
follow a reasonable procedure in deciding the issue.”
Zenadocchio v.
BAE Sys. Unfunded Welfare Ben. Plan, 936 F. Supp. 2d 868, 890 (S.D.
Ohio 2013).
In the case presently before the Court, Dr. Kaplan questioned
plaintiff’s complaints regarding the debilitating impact of her
fibromyalgia; he noted reports of pain but found no impairing
neurological or musculoskeletal findings.
A.R. II PAGEID 1610.
His
credibility determination therefore appears to be based on the lack of
physical findings “without taking reasonable measures to decide the
issue, such as conducting an in-person examination.”
936 F. Supp. 2d at 891.
See Zenadocchio,
This Court does not suggest that defendant
was required to perform an in-person examination.
See id.
However,
the TPA’s “decision in regard to [plaintiff’s] ‘self-reported
symptoms’ does not reflect deliberative, principled reasoning, but
30
instead weighs towards the Court’s conclusion that [the TPA’s]
decision to terminate was arbitrary and capricious.”
Id.
See also
Zuke, 2016 WL 1258220, at *5. See also Holler v. Hartford Life & Acc.
Ins. Co., 737 F. Supp. 2d 883, 891 (S.D. Ohio 2010), opinion clarified
on denial of reconsideration (Nov. 22, 2010) (noting that, with
fibromyalgia, “physical examinations will usually yield normal results
— a full range of motion, no joint swelling, as well as normal muscle
strength and neurological reactions”).
3.
Failure to consider the requirements of plaintiff’s
job
Drs. Taff and Kaplan found no mental or physical condition that
affected plaintiff’s ability to perform the essential functions of her
job.
A.R. II PAGEID 1599, 1611. However, nowhere in their reports is
there an analysis of the essential responsibilities of plaintiff’s job
as a Provisioning Specialist.
This failure does not reflect
deliberative, principled reasoning and adds to the evidence that
defendant’s decision to deny benefits was arbitrary and capricious.
Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or
LBA Emps., 741 F.3d 686, 702 (6th Cir. 2014) (collecting cases).
See
also Hunter v. Life Ins. Co. of N. Am., No. 10–1244, 437 F. App’x 372,
at *377 n.3 (6th Cir. June 29, 2011) (“However, mere mention of
Hunter’s job description, without analysis, is insufficient to
demonstrate that these physicians actually considered Hunter’s ability
to perform the physical demands of her prior occupation.”); Elliott v.
Metro. Life Ins. Co., 473 F.3d 613, 619 (6th Cir. 2006) (“[T]here is
31
no indication that MetLife reasoned from Elliott’s condition to her
ability to perform her occupation. . . . Instead, the denial letter is
a mere recitation of medical terminology employed by various
physicians in their diagnoses of Elliott's condition, without any
reasoning as to why those diagnoses would permit her to function in
the workplace.”); Zenadocchio, 936 F. Supp. 2d at 892 (“Hartford did
not properly consider the entire scope of Zenadoccio’s essential
duties of her position in accordance with her limitations.”).
C.
The TPA’s rejection of the opinions of plaintiff’s
physicians
Plaintiff next argues that the TPA’s denial was arbitrary and
capricious because it rejected, without reason, the opinions of
plaintiff’s physicians.
Plaintiff’s Motion, PAGEID 1774-75;
Plaintiff’s Opposition, PAGEID 1825-28.
Plaintiff specifically
contends that the TPA’s discussion of the medical evidence “is, for
the most part, a recitation of medical data without reasoning,” id. at
PAGEID 1774 (citing Kennard v. Means Indus., Inc., No. 13–1911, 555 F.
App’x 555, at *557 (6th Cir. Feb. 13, 2014) (“Bare recitations of
medical data, without reasoning, cannot produce a logical judgment
about a claimant’s work ability.”) (internal citations and quotation
marks omitted)).
However, this Court cannot agree the TPA’s denial
letter constitutes a bare recitation of medical data, without
reasoning.
Plaintiff also complains that Drs. Taff and Kaplan improperly
ignored the reports of plaintiff’s treating providers that plaintiff’s
32
many medications, including Wellbutrin, Cymbalta, Trazodone, and
Klonopin, A.R. I PAGEID 293, impaired her ability to work. See A.R. II
PAGEID 1599 (“There is no evidence of side effects from any medication
that would impair her ability to do her job.”), 1611 (“There is no
documented titration of medications due to side effects and no
documented impairment of the claimant’s ability to perform her job due
to medication usage.”). This Court agrees.
In a report following his August 8, 2011,6 examination of
plaintiff, Dr. Fettman opined that plaintiff’s medications, combined
with her physical illness, would make it “impossible for her to work
in an effective manner because these medications are sedating.”
II PAGEID 719.
A.R.
Ms. Harris reported on December 20, 2012, that
plaintiff’s “current medications may be decreasing her ability to
function at her usual high level of competency.”
A.R. I. PAGEID 270.
Despite this evidence, Drs. Taff and Kaplan found no evidence that
plaintiff’s medications impaired her ability to work.
A.R. II PAGEID
1599. A failure to consider “the number and nature of the medications”
a plaintiff is taking may be one factor in determining whether or not
a disability determination is arbitrary and capricious. Smith v.
Cont’l Cas. Co., 450 F.3d 253, 265 (6th Cir. 2006)).
See also Edwards
v. Life Ins. Co. of N. Am., No. 3:07-CV-247, 2009 WL 693139, at *16
(E.D. Tenn. Mar. 13, 2009) (“[T]he failure to address the other side
effects of Plaintiff Edwards’ medications on his ability to function
6
Although Dr. Fettman’s report pre-dates the benefits period, Dr. Taff
considered this report when reviewing plaintiff’s file. See supra.
33
weighs in favor of finding an arbitrary and capricious decision to the
extent Defendant LINA relied on Ms. Valentine’s review.”).
Cf. Zuke,
2016 WL 1258220, at *4 (“Making factually incorrect assertions in
combination with selectively reviewing a claimant’s records supports a
finding that the plan administrator acted arbitrarily and
capriciously.”).
D.
The TPA’s refusal to review the Social Security’s
Administration’s decision
Plaintiff further argues that it was arbitrary and capricious for
the TPA to refuse to review the Social Security Administration’s
decision.
Plaintiff’s Motion, PAGEID 1775-78; Plaintiff’s Opposition,
PAGEID 1824-25.
This Court disagrees. “[A]n ERISA plan administrator
is not bound by an SSA [Social Security Administration] disability
determination when reviewing a claim for benefits under an ERISA
plan.”
Whitaker v. Hartford Life & Acc. Ins. Co., 404 F.3d 947, 949
(6th Cir. 2005).
“[E]ntitlement to Social Security benefits is
measured by a uniform set of federal criteria.
But a claim for
benefits under an ERISA plan often turns on the interpretation of plan
terms that differ from SSA criteria.”
Id.
However, “the SSA
determination, though certainly not binding, is far from meaningless.”
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 (6th Cir. 2005).
As noted supra, the TPA refused to reopen its administrative
record in order to review the Social Security decision because, inter
alia, the Social Security decision was “submitted untimely” after the
34
administrative record was closed and approximately one month after the
TPA had issued its decision. A.R. II PAGEID 1706.
The United States Court of Appeals for the Sixth Circuit has held
that, “where a plan administrator has denied a disability claim, a
remand to the administrator to consider a contrary SSA determination
issued after the administrative decision is unwarranted.”
Seiser v.
UNUM Provident Corp., No. 04-1177, 135 F. App’x 794, at *799 (6th Cir.
Apr. 22, 2005).
See also Kouns v. Hartford Life & Acc. Ins. Co, 780
F. Supp. 2d 578, 590 (N.D. Ohio 2011) (citing Seiser and finding “that
the favorable Social Security Administration decision in October 2009
is not a relevant factor in determining whether Hartford acted
arbitrarily and capriciously in terminating the Plaintiff’s disability
benefits [in July 2009].”).
Thus, the TPA’s refusal to consider the
decision of the Social Security Administration - issued after the
TPA’s denial of benefits - is not a factor suggesting the arbitrary
and capricious denial of benefits.
D. Conclusion
To summarize, the TPA’s reliance on file reviews that improperly
questioned plaintiff’s credibility and which did not sufficiently
support the denial of benefits, its rejection of the opinions of
plaintiff’s treating medical providers, its failure to adequately
consider the number and nature of plaintiff’s medications, and its
failure to consider the specific requirements of plaintiff’s job lead
to the conclusion that the denial of plaintiff’s claim for benefits
was arbitrary and capricious.
Stated differently, it was the
35
“cumulative effect” of these factors, rather than any single factor,
that results in a finding that the TPA’s decision was arbitrary and
capricious.
Zenadocchio, 936 F. Supp.2d at 885.
When an ERISA plan administrator’s decision to deny benefits is
found to be arbitrary and capricious, courts may either award benefits
to the claimant or remand the matter to the plan administrator for
further action or consideration.
Smith, 450 F.3d at 265).
Elliott, 473 F.3d at 621 (citing
“Remand to the plan administrator is
appropriate where the problem is with the integrity of the plan’s
decision-making process, rather than that a claimant was denied
benefits to which he was clearly entitled.”
Hayden, 763 F.3d at 607.
Here, the record does not clearly establish that plaintiff is entitled
to benefits; instead, there were deficiencies in the TPA’s decisionmaking process.
Accordingly, remand to the TPA for further
proceedings is appropriate.
Accordingly, Plaintiff’s Second Motion for Judgment on the
Administrative Record, ECF No. 45, is GRANTED, and Defendant’s Motion
for Judgment on the Administrative Record, ECF No. 46, is DENIED. This
matter is hereby REMANDED to the TPA to conduct a full and fair review
and to issue a decision that reflects a deliberate and principled
reasoning process.
The Clerk is DIRECTED to enter final judgment.
April 25, 2016
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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