Krash v. Reliance Standard Life Insurance Group
Filing
22
MEMORANDUM (Order to follow as separate docket entry) re 17 MOTION for Summary Judgment filed by Reliance Standard Life Insurance Group, and 14 Cross MOTION for Summary Judgment filed by Serilyn Krash.Signed by Honorable Malachy E Mannion on 3/30/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SERILYN KRASH,
:
Plaintiff
:
v.
CIVIL ACTION NO. 3:16-0093
:
(JUDGE MANNION)
RELIANCE STANDARD LIFE
INSURANCE COMPANY,1
:
:
Defendant
:
MEMORANDUM
Pending before the court are the parties’ cross-motions for summary
judgment. (Doc.14, Doc. 17). Based upon the court’s review of the motions
and related materials, the plaintiff’s motion for summary judgment will be
denied and the defendant’s motion for summary judgment will be granted.
By way of relevant background, on December 22, 2015, the plaintiff filed
this Employee Retirement Income Security Act, (“ERISA”), 29 U.S.C. §1001,
et seq., action in the Court of Common Pleas of Lackawanna County
challenging the defendant’s termination of her disability benefits. On January
19, 2016, the action was removed to this court. (Doc. 1). On May 19, 2016,
1
In their case management plan, the parties agree that the name of the
defendant should be amended to “Reliance Standard Life Insurance
Company”, as it was improperly identified as “Reliance Standard Life
Insurance Group” in the complaint. (Doc. 7, p. 7).
the plaintiff filed her motion for summary judgment, (Doc. 14), along with a
supporting brief, (Doc. 15), and statement of material facts, (Doc. 16). The
defendant filed a response to the plaintiff’s statement of material facts on
June 10, 2016, (Doc. 20), along with a brief in opposition to the plaintiff’s
motion for summary judgment, (Doc. 21).
In the meantime, on May 20, 2016, the defendant filed its own motion
for summary judgment, (Doc. 17), along with a statement of material facts with
supporting exhibits, (Doc. 18), and a supporting brief, (Doc. 19). The plaintiff
has neither responded to the defendant’s statement of material facts, nor filed
a brief opposing the defendant’s motion for summary judgment.
Summary judgment is appropriate “if the pleadings, the discovery
[including, depositions, answers to interrogatories, and admissions on file]
and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901
F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury
could find for the non-moving party, and is material if it will affect the outcome
of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp.
836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge’s
2
function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (a court may not weigh the evidence or make credibility
determinations). Rather, the court must consider all evidence and inferences
drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving
party “fails to make a showing sufficient to establish the existence of an
element essential to [the non-movant’s] case, and on which [the non-movant]
3
will bear the burden of proof at trial,” Rule 56 mandates the entry of summary
judgment because such a failure “necessarily renders all other facts
immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La
Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
The summary judgment standard does not change when the parties
have filed cross-motions for summary judgment. Applemans v. City of Phila.,
826 F.2d 214, 216 (3d Cir. 1987). When confronted with cross-motions for
summary judgment, as in this case, “the court must rule on each party’s
motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the summary
judgment standard.” Marciniak v. Prudential Financial Ins. Co. of America,
2006 WL 1697010, at *3 (3d Cir. June 21, 2006) (citations omitted) (not
precedential). If review of cross-motions reveals no genuine issue of material
fact, then judgment may be entered in favor of the party deserving of
judgment in light of the law and undisputed facts. Iberia Foods Corp. v.
Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted). See Nationwide
Mut. Ins. Co. v. Roth, 2006 WL 3069721, at *3 (M.D. Pa. Oct. 26, 2006) aff’d,
252 F. App’x 505 (3d Cir. 2007).
Section 1132(a)(1)(B) of ERISA provides the plaintiff a right of action “to
recover benefits due to [her] under the terms of [her] plan.” 29 U.S.C.
§1132(a)(1)(B). To prevail on a claim under §1132(a)(1)(B), the plaintiff must
4
demonstrate that she has “a right to benefits that is legally enforceable
against the plan, and that the plan administrator improperly denied those
benefits.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)
(internal quotations omitted).
The Supreme Court has instructed that courts are to review the denial
of benefits challenged under §1132(a)(1)(B) “under a de novo standard
unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When
a plan grants its administrator the discretion to determine eligibility or to
construe the plan terms, “we review a denial of benefits under an ‘arbitrary
and capricious' standard.’” Orvosh v. Program of Grp. Ins. for Salaried
Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000). The
parties in this case agree that Reliance Standard Life Insurance Company,
(“Reliance”), has discretion to interpret the terms of the policy and to make
eligibility determinations and, therefore, the “arbitrary and capricious” standard
is the correct standard of review in this case. “An administrator’s decision is
arbitrary and capricious ‘if it is without reason, unsupported by substantial
evidence or erroneous as a matter of law.’” Miller v. Am. Airlines, Inc., 632
F.3d 837, 845 (3d Cir. 2011) (quoting Abnathya v. Hoffmann-La Roche, Inc.,
2 F.3d 40, 45 (3d Cir. 1993)) (internal quotation marks omitted). The Third
5
Circuit has defined “substantial evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Fleisher,
679 F.3d at 121.
Under the arbitrary and capricious standard, the “scope of review is
narrow and ‘the court is not free to substitute its own judgment for that of the
defendants in determining eligibility for plan benefits.’” Abnathya, 2 F.3d at 45
(quoting Lucash v. Strick Corp., 602 F.Supp. 430, 434 (E.D. Pa. 1984)).
Therefore, the court is limited to considering only the evidence that was
before Reliance at the time it reviewed and decided the claim. Mitchell v.
Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997).
Reliance provides that there is a structural conflict of interest that exists
because
Reliance
both
pays
benefits
due
and
makes
eligibility
determinations. The standard of review does not change where a structural
conflict of interest exists, namely when an insurance company both funds and
administers benefits. Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105
(2008); Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir.
2009). “Instead, courts reviewing the decisions of ERISA plan administrators
or fiduciaries in civil enforcement actions brought pursuant to 29 U.S.C.
§1132(a)(1)(B) should apply a deferential abuse of discretion standard of
review across the board and consider any conflict of interest as one of several
factors in considering whether the administrator or the fiduciary abused its
6
discretion.” Id.
The undisputed facts of record in this case2 demonstrate that Reliance
issued the group long term disability policy under which the plaintiff is seeking
benefits to Immune Deficiency Foundation, (“IDF”), where the plaintiff was
employed as a Patient Advocate. The plaintiff’s occupation is classified as a
light exertion level occupation. In accordance with the policy, before any
benefits are paid, a claimant must satisfy a 90-day elimination period, during
which time they must be continuously unable to perform the material duties
of their regular occupation. After the elimination period, benefits are payable
for up to 24 months, as long as the claimant remains disabled from their
regular occupation. After 24 months, benefits are only payable if an insured
cannot perform the material duties of any occupation.3 (Emphasis added).
2
Contrary to L.R. 56.1, the plaintiff has not responded to the defendant’s
statement of material facts. Those facts are, therefore, deemed admitted and
are supplemented by the undisputed facts provided in the plaintiff’s statement
of material facts to which the defendant has responded.
3
Under the policy, “Disabled” and “Total Disability” mean, that as a result
of injury or sickness:
(1)
during the elimination period and for the first 24 months for
which a monthly benefit is payable, an insured cannot
perform the material duties of his/her regular occupation.
(a)
“Partially Disabled” and “Partial Disability” mean that
as a result of an injury or sickness an insured is
(continued...)
7
The policy also contains a 24-month aggregate lifetime limit on benefits for
any disability that is caused by or contributed to by a mental or nervous
disorder, including depressive and anxiety disorders.
On May 13, 2010, the plaintiff stopped working due to back pain. In
relation to this, the plaintiff reported having previously undergone a vertebrae
fusion in 1990 while in high school. On April 25, 2008, the plaintiff underwent
a posterior spinal fusion L3 to the sacrum with instrumentation from L3 to S1.
She had a transdiscal screw inserted from S1-L5, a posterior spinal fusion of
L3-L4, a L3-L4 laminectomy, a L3-L4 posterior spinal osteotomy, and a local
bone graft. A lumbar x-ray dated February 23, 2009, lists the plaintiff as
having a Grade 2 Anterior Spondylolisthesis at L5-S1, as does a lumbar x-ray
3
(...continued)
capable of performing the material duties of his/her
regular occupation on a part-time basis or some of
the material duties on a full time basis. An insured
who is Partially Disabled will be considered Totally
Disabled, except during the elimination period;
(b)
(2)
“Residual Disability” means being partially disabled
during the elimination period. Residual disability will
be considered total disability; and
after a monthly benefit has been paid for 24 months, an
insured cannot perform the material duties of any
occupation. We consider the insured totally disabled if due
to an injury or sickness he or she is capable of only
performing the material duties on a part-time basis or part
of the material duties on a full-time basis.
8
dated July 2, 2009. A disability claim statement from Christopher J. Dewald,
M.D., the plaintiff’s orthopedic surgeon, attributed the plaintiff’s back pain to
spondylolisthesis, lumbar stenosis and lumbago.
Reliance, which also insures IDF’s short term disability plan, approved
the plaintiff’s claim from short term disability benefits. After the plaintiff’s short
term disability benefits were exhausted, Reliance approved the plaintiff’s long
term disability claim and benefits began on August 15, 2010.
After approving the plaintiff’s long term disability claim, Reliance
continued to obtain updated medical records. Those records demonstrate
that, as early as May 27, 2010, the plaintiff treated for and frequently
complained of anxiety and stress which contributed to her physical symptoms.
In September 2010, the plaintiff received treatment for hives that were
believed to be stress related.
During an October 4, 2010 vocational interview that was performed at
Reliance’s request, the plaintiff stated that she can lift no more than 15
pounds, and that she can stand, walk and sit for only 15 minutes at a time. On
this, Reliance concluded that the plaintiff could perform sedentary level work
activity but was not capable of performing the material duties of her regular,
light level occupation. Therefore, the plaintiff’s long term disability benefits
was continued.
In November 2010, Eugene R. Stish, M.D., reported that the plaintiff
9
could not work due to back pain. He did not attribute any of the plaintiff’s
reported limitations to the effects of her medication. When asked whether the
plaintiff was “capable of performing any work at any level of physical demand”,
Dr. Stish responded “no, she is having too much pain.” However, on the same
date, Dr. Stish completed a physical capacities questionnaire stating that the
plaintiff is capable of occasional sitting, frequent standing and walking and
sedentary lifting (i.e., up to 10 pounds of force occasionally, and/or a
negligible amount of force frequently). Reliance again determined that the
plaintiff was disabled from her own occupation and benefits continued.
On May 2, 2012, the plaintiff was evaluated by Shu Xu, M.D., a
neurologist, who noted that the plaintiff’s “[a]nxiety makes things worse.” On
May 16, 2012, and again on July 12, 2012, Dr. Xu noted that the plaintiff’s
tremors were “much better”. In the meantime, a lumbar x-ray dated May 21,
2012 listed the plaintiff as having a Grade 3 Spondylolisthesis at L5-S1.
On July 24, 2012, Vagmin Vora, M.D., evaluated the plaintiff for her
complaints of “[t]remor, status post spondylolisthesis surgery”. In presenting
the plaintiff’s self-reported medical history, Dr. Vora noted that the plaintiff
“underwent an L4-S1 fusion for high grade 4 spondylolisthesis . . . and was
doing well after that.” Dr. Vora’s assessment and plan reflect “[a] 39-year-old
female status post L3-S1 fusion for high grade 4 spondylolisthesis with
persistent tremors since April of this year, left sacroiliitis and persistent low
10
back pain with minimal radicular complaint to the left lower extremity.” Relative
to her reported tremors, Dr. Vora indicated “[g]iven this patient’s primary
complaint of some tremors, we do not think these are coming from a spinal
origin.” Dr. Vora recommended that the plaintiff consult a neurologist
regarding her tremor complaints. With respect to the plaintiff’s back pain and
radicular complaints, Dr. Vora noted that “these are stable and minor
complaint[s] for her really compared to the tremors. We recommend that she
continue with her conservative measures that she has been doing and to call
us if she has any further problem of these. We will not schedule a routine
follow up for this patient.”
An MRI of the plaintiff’s thoracic spine dated January 30, 2013 revealed
“[n]o significant disc herniation, central canal or neuroforaminal stenosis.”
Further, an MRI of the plaintiff’s lumbar spine dated the same day revealed
“[n]o significant disk abnormality or spinal stenosis present. Laminectomy and
pedicle screw fixation as described above. There has been no significant
integral change.”
A February 28, 2013 cervical MRI reflects a broad-based slightly left
paracentral disc herniation with moderate impingement centrally upon the
thecal sac at C4-5 and a broad based and slightly irregular disc osteophyte
complex with moderate to severe impingement centrally upon the thecal sac
and with mild bilateral neural foraminal impingement, slightly greater on the
11
left than the right at C5-6.
On March 14, 2013, the plaintiff treated with Dr. Stish at which time it
was noted that the plaintiff exhibited no tremors during his examination. One
month later, on April 11, 2013, Dr. Stish noted “Neurological: Motor exam
reveals normal tone and strength. No involuntary movements noted on today’s
exam”. Contrary to the statements in his treatment notes of March 14. 2013
and April 11, 2013, Dr. Stish prepared a letter to the Pennsylvania Insurance
Department dated April 11, 2013, in which he stated that the plaintiff was not
capable of working in any capacity because she was reportedly (a) unable to
sit for more than 10 minutes, (b) unable to perform any job requiring the use
of a computer or writing because of reported neck pain and (c) experiencing
tremors that no physician was able to diagnose in the two years during which
she complained of them.
On May 14, 2013, the plaintiff treated with Terence F. Duffy, M.D., who
noted:
Objective:
***
Physical examination shows patient [to] be in no acute distress.
She appears much more relaxed. Palpable tenderness in the
upper trapezius is noted. Minor restrictions to cervical range of
motion. Tenderness persists across the lower lumbar region. I did
not assess her lumbar flexion or extension for furosemide causing
her lower body “movement disorder”. Any upper extremities
reflexes 1/4. Motor testing and sensation are normal.
At the request of Dr. Duffy, the plaintiff was evaluated by
12
Tsao-Wei Liang, M.D., Assistant Professor of Neurology, The
Parkinson’s Disease & Movement Disorders Program at Jefferson
Hospital. In a subsequent letter to Dr. Duffy, Dr. Liang stated:
IMPRESSION and RECOMMENDATIONS:
My immediate suspicion based on the high variability and unusual
movements was that this was a psychogenic movement disorder.
***
I discussed my suspicion and the fact that many patients, who
have suffered from this condition including chronic pain, have
suffered a childhood trauma. Immediately, she became tearful
and described this history that her uncle had molested her in
childhood at the age of four.
***
Although this history is highly indicative of a potential psychogenic
etiology for movement disorder, it certainly is not always
diagnostic. At the same time, with discussion of this problem her
symptoms gradually improved and there was a sense of
understanding and relief when we discussed this, which is a good
prognostic factor. At this point, I would recommend gradually
reducing medical therapies if at all possible and I strongly
encouraged her to discuss with a counselor, clergyman, friend or
a psychologist the history and to potentially engage in formal
counseling and therapy regarding her prior history of abuse. I
have no further recommendations otherwise and suggest that she
follow-up as needed in the future.
On August 1, 2013, Dr. Stish noted that the plaintiff was “to see
psychologist” regarding her tremors.
The plaintiff was again evaluated by Dr. Xu on August 15, 2013, at
which time it was noted that no tremors were observed. Dr. Xu agreed that the
plaintiff “may benefit from counseling”.
On
September
3,
2013,
Dr.
13
Duffy
referenced
Dr.
Liang’s
correspondence and opinion that the plaintiff’s “movement disorder is
psychiatric”.
Beginning on October 17, 2013, the plaintiff treated with Howard Ogin,
M.A., a psychologist, who diagnosed her with posttraumatic stress disorder,
conversion disorder and noted that she suffered from severe stress. Dr. Ogin
identified the plaintiff’s primary problem as unspecified chronic medical
illnesses and her secondary problem as depression, anxiety and
posttraumatic stress.
On November 13, 2013, Dr. Xu noted that the plaintiff “feels a little
better with relaxation therapy. I have encouraged her to continue” and that the
plaintiff was “Ok with decreased dose of Topamax. She may discontinue it in
the future as the dose is very low.” Dr. Xu encouraged the plaintiff to “stay
active during the winter season”.
A December 18, 2013, lumbar x-ray reflects:
FINDINGS: Plate and screws are present in the lower lumbar
region. These have not changed in the interval since the prior
study. There is a grade 2 spondylolisthesis at L5-S1, unchanged
from the prior study. There is complete loss of disc height at L4-5
with disc space narrowing at L3-4. There is no fracture or
compression deformity. Oblique files show no spondylolysis
above the surgical level. The pedicles are preserved. The
paravertebral soft tissues are unremarkable. There is no instability
with flexion or extension. Limited movement is noted. There has
been no change in the interval since the prior study.
Also on December 18, 2013, the plaintiff underwent another spine MRI.
14
Other than degenerative changes “[n]o instability [was] seen with flexion or
extension”.
In a letter to the Social Security Administration dated January 7, 2014,
Dr. Duffy stated:
Ms. Krash over the past 1.5 years has been on to develop a
movement disorder involving her lower extremities. This has been
treated with various medications including Klonopin and Topamax
without much relief. She has recently been evaluated by a
neurology movement disorder specialist at Thomas Jefferson
University, Dr. Liang.
In this letter, Dr. Duffy further wrote that the plaintiff was totally and
permanently disabled due to her chronic lumbar pain, bilateral lower extremity
radicular pain, cervical pain with bilateral cervical radiculitis and lower
extremity movement disorder. Dr. Duffy did not mention in his letter the
findings of Dr. Liang, who indicated that the plaintiff’s tremor complaints were
psychogenic.
On February 11, 2014, the plaintiff treated with Dr. Duffy complaining of
persistent posterior cervical pain, upper trapezius and periscapular pain
associated with upper extremity radicular pain and increasing low back and
lower extremity radicular pain. The plaintiff reported that her lower extremity
fatigues at times. Upon examination, Dr. Duffy noted that the plaintiff’s
shoulders were rounded, with upper trapezius tender points extending into the
periscapular regions bilaterally, with a limited range of motion. Examination
15
of the plaintiff’s lumbar spine revealed tenderness in the midline at L5-S1 with
paraspinal tenderness as well as tenderness extending into the gluteal areas
bilaterally. The plaintiff’s lumbar range of motion was limited and bilateral S1
tenderness was noted. The plaintiff had a positive result with the straight leg
raising test. Dr. Duffy’s impression was lumbar postlaminectomy syndrome,
lower back pain, spasm of muscle, cervicalgia/neck pain, cervical stenosis
and radiculitis and lumbar radiculitis.
On February 17, 2014, the plaintiff treated with Dr. Xu for tremors and
back pain. Dr. Xu noted that the plaintiff appeared anxious and tense upon
presentation. Upon examination, Dr. Xu noted no joint tenderness, muscle
redness, contractures, muscle wasting, muscle fascirculation, or muscle
hypertrophy. His neurological examination revealed normal memory, speech,
sensation, deep tendon reflexes, muscle strength and tone, gait, fundi, eye
movements, facial movements, Barbinski and Ankle clonus. Cranial nerves
were intact. As to coordination, Dr. Xu noted “Reports: Finger-nose-finger,
Reports: Tremor (FINE HAND TREMO) (sic). Dr. Xu’s impression was tremor,
anxiety, cervical disc disorder and chronic low back pain.
A cervical spine MRI conducted on February 27, 2014 showed
degenerative disc disease most prominent at C4-C5 through C6-C7; Mild
central spinal canal stenosis at C5-C6; and oval foraminal narrowing. Further
noted was minimal linear T2 hyperintensity in the cord at C5 and especially
16
at C6. It was noted that this may reflect a small syrinx. Otherwise, findings
appeared similar to her previous cervical MRI.
A thoracic spine MRI conducted the same day showed no central spinal
canal stenosis or significant foraminal narrowing. Multiple small disc
herniations were seen throughout the thoracic spine but did not appear to
cause any foraminal narrowing or central canal stenosis. Otherwise, normal
appearing thoracic spinal cord was noted.
Electromyogram, (“EMG”) and nerve conduction velocity, (“NCV”),
studies performed in March 2014 were noted to be normal.
The plaintiff treated with Dr. Xu on April 7, 2014, at which time his
impression was again anxiety, cervical disc disorder, chronic low back pain
and tremor.
Another cervical spine MRI conducted on April 15, 2014 noted a thin
syrinx at the C6 level. No worsening of the plaintiff’s condition was noted
since her last study.
On May 14, 2014, the plaintiff treated with Dr. Daniel Gavio for back and
neck pain. Upon examination, Dr. Gavio noted abnormal range of motion in
her cervical region with cervical muscle spasms. The plaintiff tested positive
to the Soto-Hall test. Her lumbar range of motion was noted to be abnormal
and she was noted to have muscle spasm in that area as well. Positive
findings were noted for to the bechterew, kemps, braggard and straight leg
17
tests. Dr. Gavio’s diagnoses were lumbago and neck pain.
The plaintiff again treated with Dr. Gavio on May 21, 2014 for back and
neck pain. Upon examination, Dr. Gavio noted findings similar to those on the
plaintiff’s prior exam. Dr. Gavio’s diagnoses at this time were chronic low back
pain and nonallopathic lesion of the cervical, thoracic and lumbar regions.
On June 4, 2014, the plaintiff treated with Dr. Gavio for back, neck and
bilateral shoulder pain. Dr. Gavio’s diagnoses were the same as for the
plaintiff’s previous visit with added neck pain.
On June 12, 2014, the plaintiff treated with Dr. Duffy, who noted upon
examination that the plaintiff had bilateral trapezius tenderness, spasm and
trigger point; bilateral cervical paraspinal spasm and trigger point and bilateral
scalene tenderness, rhomboid tenderness, spasm and trigger point.
Decreased flexion, extension and rotation were found as well as bilateral
lumbar paraspinal tenderness, spasm and trigger point with bilateral gluteal
region tenderness, spasm and trigger point. The plaintiff’s lumbar spine had
decreased flexion and extension on examination with a positive Patrick test
bilaterally.
On June 18, 2014, June 25, 2014, July 2, 2014, and July 9, 2014, the
plaintiff treated with Dr. Gavio for back, neck and bilateral shoulder pain. Dr.
Gavio’s findings on examination paralleled those of the plaintiff’s prior
examinations, as did his diagnoses.
18
On August 18, 2014, the plaintiff treated with Dr. Duffy. Upon
examination, the plaintiff was noted to have 5/5 motor strength in all muscle
groups and her Spurling’s test was negative bilaterally. Dr. Duffy listed the
plaintiff’s diagnoses as “cervical pain; cervical disc herniation; spasm of
muscle; syrinx of spinal cord and cervical dystonia”.
Through a third party vendor, Reliance arranged for the plaintiff to
undergo an independent medical examination with a Board Certified
Orthopedic Surgeon. Arnold Berman, M.D., reviewed the plaintiff’s medical
records and examined her on September 18, 2014. Dr. Berman indicated that
the plaintiff’s diagnoses are degenerative disc disease of the lumbar spine,
status post multiple lumbar spine fusions, and body tremors no organic basis.
Dr. Berman concluded that the plaintiff is capable of performing sedentary
work activity, in that she can sit, stand, walk, climb stairs and drive frequently;
she can occasionally use foot controls; and cannot bend at her waist, squat,
climb ladders, kneel or crawl. Dr. Berman found that there is evidence of
“subjective complaints of pain without any clinical findings to substantiate
these complaints. The records and findings on examination do not support
any medical conditions currently impacting the claimant’s status.” Dr. Berman
concluded that the plaintiff received appropriate treatment for her
degenerative disc disease and that ‘[t]here was no indication in the available
medical records that there was any organic basis for her complaints of
19
tremors and it was indicated by her primary care physicians, after review of
Dr. Ling’s (sic) neurology clinical note, that her tremors were psychogenic in
nature.” Dr. Berman further found that “there was no atrophy of the right or left
upper or lower extremities, which indicates normal usage. Her grip and pinch
testing demonstrated normal strength in the right and left. Finally, her
handgrip manually was normal.” Dr. Berman opined that the plaintiff would
benefit from a psychiatric evaluation but found no clinical evidence to support
her subjective disability claim.
After being asked to clarify his findings regarding the plaintiff’s
restrictions and limitations, and reviewing additional documentation, on
October 29, 2014, Dr. Berman completed an addendum to his report, in which
he maintained that the plaintiff was capable of sedentary work. In the
addendum, Dr. Berman wrote that the plaintiff:
. . . had normal clinical evaluation of her lumbar spine on 09/18/14
with only subjective complaints of mild pain on range of motion.
There were no motor, reflex or sensory abnormalities noted as it
relates orthopedically. She had 5/5 strength in both lower
extremities, which would not prohibit her from standing or walking
occasionally from a sitting position. It is my recommendation that
she have frequent changes in position from sitting to standing and
walking. There was no clinical evidence of spasm or radiculopathy
noted on examination. It was noted during her examination that
she could walk on her heels and toes with severe tremors.
However, there was no indication in the available records that
there was any organic basis for her complaints of tremors and it
was indicated by her primary care physician, after review of Dr.
Ling’s (sic) neurology clinical note, that her tremors were
psychogenic in nature.
20
On November 12, 2014, Dr. Berman completed a second addendum to
his report to clarify his statement regarding the frequency with which the
plaintiff needed to change positions. Dr. Berman again opined that the plaintiff
“is capable of sedentary work,” meaning “work [that] involves sitting most of
the time, but may involve walking or standing for brief periods of time.”
By letter dated November 20, 2014, Reliance discontinued the plaintiff’s
benefits on the basis that she suffered a mental or nervous condition that
contributed to her alleged disability and that she was not, in the absence of
a mental or nervous condition, physically disabled. In its letter, the defendant
indicated that it asked Dr. Berman to clarify his opinion on two occasions, first
regarding his opinion that the plaintiff was not impaired in light of his
statement that she requires frequent breaks and, second to address
additional records provided by the plaintiff. These resulted in the two
addendums issued by Dr. Berman. The plaintiff appealed from the decision
to discontinue her benefits, relying on her subjective complaints of pain and
the opinions of some of her treating physicians that she was disabled.
As part of the review on appeal, again using a third party vendor,
Reliance had the plaintiff’s medical records reviewed by Sarah White, M.D.,
an independent Board Certified Physical Medicine and Rehabilitation
Specialist. On May 11, 2015, Dr. White issued a report regarding her review
of the plaintiff’s medical records. Dr. White listed the plaintiff’s medical
21
conditions as: neck pain, cervical disc herniations, multiple small thoracic
herniations, low back pain, lumbar degenerative disc disease and L5-S1
Spondylolisthesis treated with lumbosacral L4-S1 fusion on 4-2-1990, and
lumbosacral L3-S1 fusion on 4-25-2008. Secondary diagnoses included:
psychogenic movement disorder, anemia, cardiac murmur, uterine bleeding,
fibroids, cysts and benign right breast fibroandenoma.
Dr. White noted inconsistencies within the plaintiff’s medical records
both in the notes of a single physician and from treating physician to treating
physician. Considering the medical records, as well as the plaintiff’s subjective
complaints, Dr. White concluded:
In weighing the evidence, despite the inconsistencies, the medical
documentation supports partial functional impairment based on
the self-reported symptoms of neck pain and low back pain, the
findings on physical examination of cervical lumbar tenderness,
the abnormalities on the cervical, thoracic and lumbar spine
imaging studies described above, and the diagnoses of neck pain,
cervical disc herniations, multiple small thoracic disc herniations,
low back pain, lumbar degenerative disc disease and L5-S1
spondylolisthesis treated with lumbosacral L4-S1 fusion on 4/2/90
and lumbosacral L3-S1 fusion on 4/25/08. Reasonable restrictions
and limitations would include lifting, carrying, pushing, or pulling
up to 10 pounds occasionally and a negligible amount of force
from 12/15/14 and ongoing.
Dr. White further indicated:
There are no restrictions and/or limitations for the right or left
upper extremity with grasping, feeling, handling, manipulating, or
fingering. There are no restrictions and/or limitations with regard
to sitting. The claimant is restricted and/or limited to standing or
walking for 1 hour continuously and 3 hours total per 8-hour day.
22
She should be allowed to change positions between sitting,
standing, and walking as needed for comfort. The claimant does
not have any reaching restrictions and/or limitations with the right
or left upper extremity. Ms. Krash is able to perform fulltime
activities throughout an 8-hour day with the above restrictions and
limitations.
Dr. White further considered the medications that the plaintiff was
prescribed and concluded that “[t]here is no evidence to support any side
effects from the prescribed medications. In addition, there is no
documentation in the medical record of side effects that would preclude the
claimant from full-time work.” Dr. White opined that the plaintiff’s restrictions
were permanent due to the chronic degenerative nature of her condition. She
further indicated that she was unable to opine whether or not the plaintiff’s
secondary diagnoses contribute to the plaintiff’s impairment, as they are
outside of her area of expertise.
Apart from the plaintiff’s treatment records, the record in this action
demonstrates that the plaintiff filed two applications for Social Security
disability benefits.4 The first was shortly after she stopped working in May
2010. The plaintiff applied for Social Security disability benefits, alleging
disability beginning May 17, 2010. Her claim was denied on March 3, 2011.
4
The defendant concedes that the decisions of the Social Security
Administration are not determinative of the plaintiff’s disability claim under the
Reliance policy, but argues that they are factors that weigh in favor of
Reliance’s decision to discontinue benefits.
23
The plaintiff’s appeal of the decision denying her claim was denied on June
18, 2012, following a hearing before an Administrative Law Judge, (“ALJ”). In
affirming the denial of the plaintiff’s claim, the ALJ stated that the plaintiff’s
anxiety and depression, as diagnosed by her primary care physician, “do not
cause more than minimal limitation in the claimant’s ability to perform basic
mental work activities and are therefore non severe.” The ALJ found that the
plaintiff “has the following severe impairments: degenerative disc
disease/degenerative joint disease of the cervical and lumbar spine, status
post lumbar laminectomies and fusion” but that:
The undersigned finds that the claimant’s impairments, while
severe, do not satisfy the requisite neurological, laboratory,
clinical and/or diagnostic requirements for listing level severity.
Thus, there are no medical findings that precisely meet or
medically equal the criteria of any impairment described in the
Listing of Impairments.
After considering the objective medical evidence, as well as the
plaintiff’s subjective complaints, the ALJ found that the plaintiff was not fully
credible, stating:
In terms of the claimant’s complaints of pain, the objective
evidence fails to support the severity of her symptoms and
alleged limitations.
***
Upon a review of the evidence, the undersigned finds that the
claimant’s testimony with regard to her symptoms, not to be fully
credible, because it was overstated, inconsistent with, and
unsupported by, the great weight of the documentary medical
evidence.
24
Although the ALJ concluded that the plaintiff was not capable of
performing the duties of her prior occupation, she also concluded that the
plaintiff is capable of sedentary level work activity and that “considering the
claimant’s age, education, work experience, and residual functional capacity,
the claimant is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy” and was therefore “not
disabled.”
On August 1, 2012, the plaintiff filed her second application for Social
Security disability benefits claiming an onset date of disability of June 19,
2012. The plaintiff’s second claim was also denied. The plaintiff appealed and
a hearing was held before another ALJ. The second ALJ determined:
In making this determination concerning the plaintiff’s
impairments, the undersigned specifically reviewed section 1.04
(Disorders of the spine), and 11.00 (Neurological), et seq., of the
listed impairments; and finds that the claimant’s impairments,
while severe, do not satisfy the requisite neurological, laboratory,
clinical and/or diagnostic requirements for listing level severity.
The ALJ further determined:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible.
The ALJ considered the plaintiff’s mental status, which he also determined
was not a basis for disability benefits. Ultimately, the ALJ determined that the
25
plaintiff was capable of performing light level work activity.
Considering the “any occupation test” for disability under the policy,
Reliance investigated whether the plaintiff possessed skills that can be
transferred to another occupation. The plaintiff is a college graduate who
obtained a Masters in Health Administration in 1999 and had 13 years of
consistent work history. On April 21, 2011, Reliance performed a Residual
Employability Analysis to determine what, if any, alternative occupations the
plaintiff would be capable of performing, considering her work history,
education and training, as well as her sedentary physical limitations. Several
alternative, sedentary occupations were identified, including: Vice President,
Public Relations Representative, Contact Representative, PolicyholderInformation Clerk and Program Manager. Based on the additional evidence
provided on the plaintiff’s appeal, Reliance performed a second Residual
Employability Analysis, and the alternative occupations previously identified
remained “viable alternatives” for the plaintiff.
By letter dated June 23, 2015, Reliance upheld the decision to
discontinue the plaintiff’s benefits, again finding that the plaintiff’s claim was
subject to the two-year limit on mental or nervous disorders and the plaintiff
was not, even in the absence of a mental or nervous disorder, physically
disabled. In so finding, the defendant considered the opinions of Dr. Berman
and Dr. White, as well as “updated information from [the plaintiff] and her
26
treating physicians, including but not limited to records from Dr. Stish, Dr.
Gavio, physiatrist Dr. Duffy, and neurologist Dr. Shu Xu”. Based upon
Reliance’s review of all of the information in the records, Reliance determined
that the plaintiff was capable of performing sedentary work activity and was
therefore not disabled from “any” occupation.
The plaintiff, through counsel, then initiated the instant action in which
she claims entitlement to benefits under the policy. In doing so, the plaintiff
avers that her “condition is Spondylolisthesis Grade 4, which is a covered
condition, as well as many others that are listed such as Regenerative (sic)
Disc Disease.” While Dr. Liang concluded that her spasms are psychogenic
tremor disorder, the plaintiff alleges that she “clearly has a physical condition
stemming back to 2007.” The plaintiff alleges that she “does suffer from
depression and anxiety, but to infer that her physical disability is Psychogenic
is prosperous (sic).” The plaintiff alleges that she cannot perform the functions
of her prior employment or any other employment as exhibited by Dr. Gavio’s
opinion on June 7, 2010 that she is totally disabled.
There is no dispute that the terms of the policy place the burden of
proving a continuing disability on the plaintiff, as benefits are only payable
after the plaintiff “submits satisfactory proof of Total Disability to [Reliance].”
Based on information provided to Reliance, benefits were paid to the plaintiff
through December 15, 2014. As of that date, however, the plaintiff was
27
required to prove to Reliance that she suffered from a condition which
prevented her from performing the material duties, not only of her occupation,
but of any occupation. (Emphasis added).
The defendant terminated the plaintiff’s long term disability benefits for
two reasons: (1) because the plaintiff suffers from a mental or nervous
disorder that contributes to her alleged disability; and (2) even in the absence
of a mental or nervous disorder, the plaintiff is not physically disabled from
engaging in any occupation.
Initially, the defendant argues that it is clear from the record that the
plaintiff has a mental or nervous disorder which contributes to her alleged
disability. Under the policy, benefits are limited for a disability caused or
contributed to by a mental or nervous disorder to 24 months. (Emphasis
added). Mental disorders include depressive disorders and anxiety disorders.
The record reflects that the plaintiff has been treated for both. In fact, on
numerous occasions where it was noted that the plaintiff was treating for pain,
it was also noted that the plaintiff was suffering from anxiety and/or
depression. The only substantive argument the plaintiff raises in her motion
for summary judgment relating to this basis for termination is that her mental
diagnoses stem from and are secondary to her physical conditions and
28
therefore cannot act to preclude her benefits.5 However, this limitation applies
“even if the disabling mental conditions were precipitated by a physical injury.
See Michaels v. Equitable Life Assur. Soc’y of the United States Emples.,
Managers, & Agents Long-Term Disability Plan, 305 Fed.Appx. 896, 908 (3d
Cir. 2009). Any argument by the plaintiff that the limitation does not apply in
her case because her mental impairments are caused by her physical
impairments is without merit. Id. at 908 (“if a claimant is mentally disabled, the
source of that mental condition does not affect the applicability of a plan’s
limitation on benefits”).
In any event, the record does not support the plaintiff’s claim that her
mental impairments stem only from her physical conditions. Specifically, in
July 2012, Dr. Vora, the plaintiff’s orthopedic specialist, noted that the
plaintiff’s tremors were her primary complaint. He further indicated that the
plaintiff’s tremors were not spinal in nature. Both Dr. Vora and Dr. Duffy
recommended that the plaintiff see a neurologist for her tremors. Dr. Xu, a
neurologist, evaluated the plaintiff and indicated that her “[a]nxiety makes
things worse.” The plaintiff was referred to Dr. Liang, who opined that the
plaintiff’s tremors were related to a psychogenic movement disorder often
5
As indicated, the plaintiff has not filed a brief in opposition to the
defendant’s motion for summary judgment, but only filed a brief in support of
her own motion.
29
triggered by childhood trauma. When presented with Dr. Liang’s opinion, the
plaintiff professed that she had been molested by a relative as a child. Dr.
Liang encouraged the plaintiff to discuss her situation with a counselor,
clergyman, friend or psychologist. Dr. Stish, the plaintiff’s primary care
physician, noted that the plaintiff was “to see [a] psychologist”. Dr. Xu also
noted that the plaintiff “may benefit from counseling.” The plaintiff ultimately
saw Dr. Ogin, a psychologist, who indicated that the plaintiff suffered from
posttraumatic stress disorder and conversion disorder with the traumatic
event history noted as “sexual abuse”. Thus, the record supports that the
plaintiff’s mental/nervous disorders, in part, stem from events in her childhood
and not only from her physical condition.
Finally, as to her mental/nervous disorders, the plaintiff argues that
neither Dr. Berman nor Dr. White, the independent medical providers, opined
that she suffers from a mental disorder which is disabling in and of itself.
However, the policy does not provide that the mental disorder has to be
disabling in and of itself, but only that it has to contribute to an alleged
disability. As discussed above, there is evidence that the plaintiff’s
mental/nervous disorders contribute to her condition. As such, this argument
has no merit.
Because the record supports that the plaintiff suffers a contributing
mental or nervous disorder, it was her burden to prove that she was totally
30
disabled from any occupation solely due to a physical condition. The plaintiff
argues in her summary judgment motion that Reliance “abused its discretion
in denying [her] Total Disability Benefits, especially when [her] main physical
condition, spondylolisthesis grade 4, is a listed covered disorder entitling [her]
to Total Disability Benefits per the Plan”. Reliance does not dispute the
plaintiff’s diagnosis of spondylolisthesis or the fact that the plaintiff suffers
from limitations as a result of her condition. Reliance argues, however, that
the plaintiff’s diagnosis of spondylolisthesis does not act as proof of disability.
In fact, diagnosis alone is not proof of a disability. See Nichols v. Verizon
Commc’ns, Inc., 78 Fed.Appx. 209, 212 (3d Cir. 2003). As such, the fact that
the plaintiff has been diagnosed with a condition does not equate to proof that
she is totally disabled from any occupation as a result of that condition.
The plaintiff also relies on the opinions of certain of her treating
physicians, as well as her own subjective complaints to support her claim of
total disability. However, neither is binding upon Reliance in its determination
as to whether the plaintiff has proven totally disability. See Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“we hold, courts have no
warrant to require administrators automatically to accord special weight to the
opinions of a claimant’s physician”); Magera v. Lincoln Nat’l Life Ins. Co.,
2009 WL 3837265 (M.D.Pa., Nov. 16, 2009) (subjective complaints are
insufficient to prove disability absent objective evidence of impairment).
31
As to her subjective complaints, in applying for disability benefits, the
plaintiff claimed that she was unable to perform any work activity due to
severe, disabling pain and spasms. She reported that she can lift no more
than 15 pounds and that she can stand, walk and sit for only 15 minutes at a
time. The plaintiff claimed that she “is incapable of regularly performing the
functions of daily living, including daily grooming”. The plaintiff reported that
brushing her teeth “brings tears to her eyes” and that she “can’t lift her arms
without excruciating pain”. She stated that she needs a break every 5 to 6
minutes when getting ready, and that she cannot dress herself normally or
perform any household chores without pain. The plaintiff indicated that she
cannot shop, except occasionally over the phone, and relies on others to do
her shopping for her. According to the plaintiff, she cannot sit in front of a
computer for any length of time.
The plaintiff argues that the opinion of Dr. Gavio, her chiropractor who
supported her claim of disability, is dispositive of the issue. Dr. Gavio
indicated that the plaintiff suffered from “debilitating muscle spasms” which
prevented her from prolonged sitting, standing, or walking, and, as a result,
prevented her from working. Reliance noted, however, that no physician
pointed to any objective evidence of debilitating spasms, and Dr. Liang
concluded that the plaintiff’s spasms are psychogenic in nature. To the extent
that Dr. Gavio found that the plaintiff’s spasms were a physical disability,
32
Reliance found his opinion was not persuasive.
The plaintiff argues that the assessments by Dr. Xu in his February 17,
2014 and April 7, 2014 records of tremor, anxiety, cervical disc disorder and
chronic low back pain support her claim of disability. Again, while the plaintiff
was diagnosed with these conditions, diagnoses alone do not establish
disability. Moreover, also in Dr. Xu’s records on these dates are his findings
upon examination, which indicate that the plaintiff had no joint tenderness,
muscle redness, contractures, muscle wasting, muscle fascirculation or
muscle hypertrophy. The plaintiff’s muscle tone and strength were noted to
be normal. Despite the plaintiff’s claim that she is totally disabled and unable
to perform even the basic functions of daily living, Dr. Xu “encourage[d] the
plaintiff to stay active.”
The plaintiff also cites to the records of Dr. Duffy dated June 12, 2014,
which reflect that the plaintiff had tenderness, spasms and trigger points, in
support of her claim of disability. However, in addition to these findings, Dr.
Duffy noted that the plaintiff’s range of motion in her shoulders, hips and
knees was normal and that her muscle strength was 5/5 in all muscle groups.
Testing for cervical nerve root compression was negative bilaterally. These
findings were repeated on August 18, 2014.
The plaintiff also relies on the opinion of Dr. Stish in support of her claim
of disability. Although Dr. Stish, the plaintiff’s primary care physician,
33
supported her claim for total disability and reported that the plaintiff was in too
much pain to perform any type of work, he also indicated that the plaintiff
could sit occasionally (up to 33% of a workday); stand and walk, each
frequently (34%-66% of a workday); and lift at a sedentary level. Dr. Stish
further indicated that the plaintiff was capable of occasional bending,
squatting, climbing, driving and using foot controls. According to Dr. Stish’s
functional assessment, the plaintiff could use both of her upper extremities to
continuously perform simple grasping, fine manipulation and feeling/tactile
sensation tasks; frequently reach above mid-chest level and reach at
waist/desk level; and occasionally push/pull. Dr. Stish identified no other
factors which would affect the plaintiff’s abilities.
The objective findings of Dr. Gavio, Dr. Xu, Dr. Duffy and Dr. Stish upon
examination of the plaintiff do not support her claim of total disability. The
plaintiff claims that she is prevented from doing virtually any physical activity
due to her condition, even the most basic functions of daily living such as
brushing her teeth or getting dressed. However, the findings of her own
doctors reflect that the plaintiff had good motor strength, no muscle wasting,
muscle fascirculation or muscle hypertrophy, and normal muscle tone and
strength. These are not findings one would expect to find if physical activity
were totally restricted.
In addition to the records of the above physicians, Reliance cites to the
34
records of Dr. Vora, another of the plaintiff’s treating physicians, who
evaluated the plaintiff in July 2012 for “tremor, status post spondylolisthesis
surgery” and indicated that the plaintiff’s tremors, and not her back pain, was
her primary complaint. Dr. Vora noted that the plaintiff’s back pain and
radicular complaints were “stable and minor complaint[s] for her really
compared to the tremors.” This assessment provides further evidence in
support of Reliance’s determination that the plaintiff was not totally disabled
based upon her spondylolisthesis and back pain.
In addition to the findings of the plaintiff’s treating physicians, Reliance
considered the findings of Dr. Berman, a Board Certified Orthopedic Surgeon,
and Dr. White, a Board Certified Physical Medicine and Rehabilitation
Specialist, two independent medical providers, appointed by a neutral third
party, to evaluate the plaintiff and determine whether she is totally disabled
from work in any occupation.6 Despite the plaintiff’s claim that the report Dr.
Berman is “vague, sparse and ignored objective medical evidence”, a review
of the record demonstrates that Dr. Berman issued a 30-page report outlining
the records he reviewed and summarizing the plaintiff’s medical history. Dr.
Berman included his findings upon examination of the plaintiff. In light of all
6
While the plaintiff argues in her motion for summary judgment that the
defendant gave conclusive weight to the reports of these physicians, the
record demonstrates that their reports were considered in conjunction with the
records of the plaintiff’s treating physicians.
35
of the medical evidence of record, as well as his own examination of the
plaintiff, Dr. Berman diagnosed the plaintiff with degenerative disc disease of
the lumbar spine, status post multiple lumbar spine fusions and body tremors
with no organic basis. He found, however, that the plaintiff’s subjective
complaints were not supported by any clinical findings from his examination
or the medical records. Dr. Berman noted that “there was no atrophy of the
right or left upper extremities, which indicates normal usage”. Further, the
plaintiff’s “grip and pinch testing demonstrated normal strength on the right
and left. Finally, the plaintiff’s handgrip was manually normal.” The plaintiff
had “no motor, reflex or sensory abnormalities noted as it relates
orthopedically.” Her strength was 5/5 . . . in both lower extremities, which
would not prohibit her from standing or walking occasionally from a sitting
position.” The plaintiff’s prognosis was found to be good. Dr. Berman opined
that the plaintiff was capable of performing sedentary work provided that she
is afforded to change positions. With the receipt of additional documentation
and upon request, Dr. Berman issued an 6-page addendum to his original
report maintaining that the plaintiff was capable of sedentary work activity.
Upon request for clarification of his determination that the plaintiff was not
impaired but required the opportunity to change positions, Dr. Berman issued
a second addendum confirming that the plaintiff was capable of performing
the requirements of sedentary work activity.
36
The plaintiff argues that Dr. Berman did not consider her
spondylolisthesis. However, as pointed out by the defendant, Dr. Berman
references this condition multiple times throughout his report. Even
considering her spondylolisthesis, however, Dr. Berman found that the
objective evidence of record, including his own findings upon examination,
demonstrated that the plaintiff was capable of performing sedentary work
activity.
Dr. White also determined that the plaintiff was capable of performing
work activity. The plaintiff argues that Dr. White also failed to consider her
spondylolisthesis. In rendering her opinion, Dr. White noted that she
considered all of the medical evidence of record to that point, as well as the
plaintiff’s own reports of limitations. She noted that there were inconsistencies
within the reports of certain treating physicians, as well as among the opinions
of different physicians. Irrespective of this, based on the plaintiff’s subjective
complaints and the objective medical test results contained in the record, Dr.
White opined that the plaintiff had partial functional impairment. Dr. White
opined however that the plaintiff was not so functionally impaired as to be
prevented from engaging in any work activity.
While not dispositive as to whether the plaintiff was totally disabled
under the plan, Reliance also considered the decisions rendered in the
plaintiff’s two failed attempts to obtain Social Security disability benefits. In
37
both cases, the different ALJs determined that based upon the objective
medical evidence of record, which did not support the plaintiff’s subjective
complaints of limitations, the plaintiff was capable of performing at least
sedentary work activity.
Considering all of the above, neither the plaintiff’s subjective complaints
nor the findings of her treating physicians, support her claim of total disability
from any occupation. Moreover, it cannot be said that the decision of Reliance
to terminate the plaintiff’s disability benefits was not supported by substantial
evidence.
Finally, the plaintiff argues that had Dr. Berman and Dr. White
acknowledged the seriousness of her spondylolisthesis, she would have
automatically been entitled to continued benefits under the plan as a
diagnosis of spondylolisthesis of grade 2 or higher is not subject to the 24month limitation period. As to this argument, the policy provides under the
heading of “Limitations - Other Limited Benefits”7:
2.
Monthly Benefits will be limited to a total of 24 months in the
Insured’s lifetime for all Total Disabilities caused by or
contributed to [by] musculoskeletal and connective tissue
disorders of the neck and back, including any disease,
disorder, sprain and strain of the joints and adjacent
muscles of the cervical, thoracic and lumbosacral regions
and their surrounding soft tissue.
***
7
This is separate and distinct from the mental and nervous disorders
limitation provision.
38
Total Disabilities caused by the following musculoskeletal
and connective tissue disorders will be treated the same as
any other Total Disability and the 24 month maximum benefit
period will not apply:
***
•
Spondylolisthesis, Grade II or higher . . .
Plaintiff is correct that the 24 month limitation provision in the above
section would not apply to her. The defendant is also correct that the plaintiff
appears to conflate this section with the mental or nervous disorders limitation
in a separate section of the policy. In the end, this provision requires the
defendant to treat Spondylolisthesis, Grade II or higher like any other total
disability which they have done. While the plaintiff has been diagnosed with
spondylolisthesis, the records indicate that she is not presently totally
disabled as a result of this condition, which is the dispositive factor.
The “arbitrary and capricious” standard of review is a deferential
standard that is difficult to overcome. Considering the medical evidence
available to Reliance in making its benefits determination, the court cannot
conclude that the decision to terminate benefits was “without reason,
unsupported by substantial evidence or erroneous as a matter of law. Miller,
632 F.3d at 845 (quotation marks omitted). As such, the court finds that the
defendant is entitled to summary judgment as a matter of law. An appropriate
order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 30, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0093-01.wpd
39
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