Clark v. Unum Life Insurance Company of America et al
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 10/10/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOAN CLARK,
Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA and UNUM GROUP
CORPORATION,
Defendants.
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Case No. 3:17-cv-01119
Judge Aleta A. Trauger
MEMORANDUM OPINION
Plaintiff Joan Clark initiated this action against defendants Unum Life Insurance Company
of American and Unum Group Corporation (collectively referred to herein, in the singular, as
“Unum” or “the defendant”) under the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1132, for judicial review of Unum’s decision denying long-term disability (“LTD”)
benefits under an employee welfare benefit plan (“the Plan”), sponsored and maintained by Clark’s
former employer, Aerospace Testing Alliance (“ATA”). Clark and Unum have filed cross motions
for judgment on the administrative record. (Docket Nos. 17, 19.) Clark has filed a Response to
Unum’s motion (Docket No. 24), to which Unum has filed a Reply (Docket No. 25); Unum has
filed a Response to Clark’s motion (Docket No. 23), to which Clark has filed a Reply (Docket No.
26). For the reasons set forth herein, Clark’s motion will be granted, Unum’s motion will be
denied, and Clark’s claim will be remanded to Unum for further consideration.
BACKGROUND
Clark worked for ATA as an instrument technician at Arnold Air Force Base in Tullahoma,
Tennessee for almost thirty-three years. Her position required her to perform a variety of
challenging physical tasks, including scaling ladders, pulling and carrying heavy objects, and
installing wires into small connectors.
Approximately halfway into her career, Clark was
diagnosed with systemic lupus erythematosus (“SLE” or “lupus”) and, later, with fibromyalgia
and neuropathy. These conditions caused symptoms including fatigue and chronic pain. Clark
also suffered from sleep apnea and essential tremor, which caused her hands to shake. In 2012,
following a flare of her SLE, Clark was forced to stop working. She applied for and received
short-term disability benefits from Unum, the insurer responsible for benefits determinations and
payments on behalf of ATA. Her treating physician, Dr. Albert Brandon, recommended that Clark
take a medical retirement. Clark rejected his advice and continued to work until 2016.
I.
Applicable Plan Provisions
Effective October 1, 2011 Unum issued Group Policy No. 225814 002 (“Policy”) to ATA
to fund short-term and LTD benefits for ATA’s employees. (Administrative Record, Part I, Doc.
No. 14-1. 1) The Policy is an “employee welfare benefit plan,” as that term is defined by ERISA,
29 U.S.C. § 1002(a).
For purposes of LTD benefits, the Policy defines “disability” as follows:
You are disabled when Unum determines that:
–
you are limited from performing the material and substantial duties of your
regular occupation due to your sickness or injury; and
1
The Administrative Record has been filed with the court at Docket Numbers 14-1, 14-2, 14-3,
14-4, 14-5, and 14-6. The claim file upon which Unum’s decision was based makes up Docket
Numbers 14-2, 14-3, 14-4, and 14-5. The pages within that range have been cumulatively
numbered for purposes of ease of reference, but those page numbers are, unfortunately, almost
completely hidden by the court’s CM/ECF stamp. The court will therefore refer to the pages within
the Administrative Record by the docket number assigned by CM/ECF and the page within that
docket number.
2
–
you have a 20% or more loss in your indexed monthly earnings due to the
same sickness or injury.
After 24 months of payments, you are disabled when Unum determines that due to
the same sickness or injury, you are unable to perform the duties of any gainful
occupation for which you are reasonably fitted by education, training or
experience.
You must be under the regular care of a physician to be considered disabled.
The loss of a professional or occupational license or certification does not, in itself,
constitute disability.
We may require you to be examined by a physician, other medical practitioner
and/or vocational expert of our choice. Unum will pay for this examination. We
can require an examination as often as it is reasonable to do so. We may also require
you to be interviewed by an authorized Unum Representative.
(Docket No. 14-1 at 17 (emphasis in original).)
The Policy defines “material and substantial duties” to mean duties that “are normally
required for the performance of your regular occupation” and that “cannot be reasonably omitted
or modified.” (Id. at 33.) The term “regular occupation” refers to the occupation the employee is
“routinely performing” at the time disability begins; however, Unum looks at the occupation “as
it is normally performed in the national economy, instead of how the work tasks are performed for
a specific employer or at a specific location.” (Id. at 35.)
The Policy clearly “delegates to Unum . . . discretionary authority to make benefit
determinations under the Plan.”
(Id. at 42.)
“Benefit determinations include determining
eligibility for benefits and the amount of any benefits, resolving factual disputes, and interpreting
and enforcing the provisions of the Plan. All benefit determinations must be reasonable and based
on the terms of the Plan and the facts and circumstances of each claim.” (Id.)
II.
Initial LTD claim and denial
Clark claims to have become disabled from working in her lead instrument technician
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position beginning February 15, 2016, at which time she was 59 years old. She was covered under
the Policy. In accordance with Policy requirements, she initially filed another claim for short term
disability based on her diagnoses of SLE, fibromyalgia, and neuropathy. (Administrative Record,
Part II, Docket No. 14-2 at 92.) She identified Dr. Brandon as her treating physician. Although
the form requested information about all “current medical treatment providers” (id.), Clarke
apparently did not disclose any other medical providers.
On the Attending Physician Statement, Dr. Brandon identified Dr. Raymond Capps, a
neurologist, as another medical provider of Clark’s. (Docket No. 14-2 at 97.) Dr. Brandon noted
that he had personally treated Clark in the past and that she was experiencing a “flare” of her lupus,
complicating her fibromyalgia symptoms. (Id.) He stated that, as a result of the “flare,” “[s]he
currently cannot think straight & therefore needs not to work.” (Id.) He identified the clinical or
diagnostic findings as including “multiple tender points” on her spine and muscle spasms of the
muscles from the thoracic to the lumbar spine. By observation, she “appears fatigued” and pale,
with increased pain and joint pain. (Id. at 97.) He opined that Clark was precluded from working
overtime, climbing, stooping, or standing. (Id. at 98.) He explained that she “suffers from lupus
and fibromyalgia” with “intermittent exacerbation” of her symptoms, which are “aggravated by
stress & long hours.” (Id.) He noted that she “also has neuropathy in her lower extremities, which
make[s] it uncomfortable for her to climb.” (Id.) He added that she requires “[p]eriodic periods
of increased rest and prescription medications to help combat the exacerbations.” (Id.) He
provided a checklist of lupus symptoms and noted that, among many other symptoms, Clark was
experiencing extreme fatigue. (Id. at 100.)
On March 7, 2016, Dr. Brandon completed and returned to Unum a Residual Functional
Capacity Form, on which he stated that extreme fatigue unrelieved by rest and pain related to her
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diagnosed conditions of SLE, fibromyalgia, and neuropathy prevented her from performing her
job duties. (Id. at 111.) He identified the objective findings and laboratory results supporting his
opinions as including positive ANA, low white blood cell count, and elevated CRP (c-reactive
protein). (Id.) He described Clark’s treatment as including prednisone treatment and antibiotics.
He noted that SLE is “progressive in nature” and “unpredictable” but believed that her disability
related to the condition would endure for more than a year. (Id. at 112.)
He noted that, functionally, Clark could stand and sit only for short periods of time, could
walk no further than half a block at a time, was limited in reaching, and could lift less than five
pounds only frequently or occasionally. (Id. at 113.) He noted additional symptoms, including
frequent dizziness and headaches, essential tremors, fatigue, numbness in hands and feet, and sleep
apnea. (Id. at 114.) He further noted that Clark suffered chronic, daily pain, varying in intensity,
in the form of arthralgia, muscle pain, stiffness, chronic headaches, and neuropathy. (Id.) He rated
Clark’s credibility as excellent, noting that she had been diagnosed with SLE in 1991 and that the
fatigue and pain related to her diagnoses had gradually become debilitating over the past five years.
(Id. at 115.)
On April 15, 2016, Unum notified Clark that she was approved for short-term disability
benefits through that date, and, if she was not able to return to work after that date, requested
medical records and restrictions supporting her claim of disability from March 8, 2016 forward.
(Id. at 147.) In response, Clark provided medical records from Dr. Brandon. Dr. Brandon’s office
visit note from Clark’s March 7, 2016 visit stated that the “reason for appointment” was to refill
Clark’s Cymbalta prescription and “Talk with Physician about disability.” (Id. at 119.) The
reported symptoms and physical exam were largely unremarkable, except that Dr. Brandon noted
decreased range of motion in Clark’s cervical spine and “cognitive function intact but problems
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with forgetfulness.” (Id.) Clark was continued on numerous medications, including Tramadol,
Cymbalta, Metoprolol, and Lyrica, among others, and directed to follow up in two months. Clark
returned to Dr. Brandon on April 15, 2016, but her complaints were focused on seasonal allergy
symptoms and a urinary tract infection. (Id. at 134–35.) On May 16, 2016, Dr. Brandon noted
that Clark was “still unable to work due to extreme weakness,” but otherwise the treatment note
was consistent with the preceding months’ notes. (Id. at 141–42.) Dr. Brandon also filled out
paperwork related to Clark’s disability claim, including a form documenting that she was not
released to return to work at ATA. (Id. at 143.) On this form, he described her as limited to: short
durations of activity followed by rest; lifting no more than 15 pounds, with no stooping; standing
for short periods of time; walking “for therapy and as tolerated”; sitting in chairs for short periods;
driving short distances; unable to climb, tolerate heat, bend or squat; and climbing stairs
infrequently. (Id.) He noted that she had “a problem with balance and dizziness and concentrating
due to extreme fatigue.” (Id.)
On May 27, 2016, Unum claim administrator Stephanie Clabough documented a telephone
call on that date with Clark, in which Clark clarified her last date worked and stated that Dr.
Brandon had advised her to stop working. (Id. at 217.) She acknowledged that she had a previous
short term disability claim but had returned to work in September 2015, with no restrictions, and
that she had continued to work full time without restrictions or limitations up until February 12,
2016. (Id.) She stated that she was not being accommodated prior to her last day worked and that
Dr. Brandon had not provided her with any work-related restrictions and limitations prior to that
date. (Id.) She explained that, when she returned to work in September 2015, she was still feeling
poorly amidst a Lupus flare. (Id. at 218.) She noted that Dr. Brandon did not want her to return
to work but that she was determined to do so. She stated that “it just got to where she could not
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handle it any more in 2/2016 with how she was feeling and what her work requires. Her symptoms
[were] overall pain, neuropathy in her feet . . . that had gotten a lot worse,” causing her to take
time off from work. (Id.) In February 2016, she was feeling sick and dizzy with extreme fatigue.
(Id.) As of May 26, 2016, she continued to have symptoms described as “a combination of
everything. Her current symptoms are severe back pain, really bad headaches and her back has
been having spasms . . . neuropathy in her hands and feet and . . . carpal tunnel syndrome in her
hands.” (Id.) She did not yet need surgery but both hands were “weak.” (Id.) In addition, her
knees were bothering her, likely from arthritis and lupus. The primary symptoms preventing her
from working were “debilitating fatigue, pain and feeling like she ha[d] the flu.” (Id.)
The plaintiff identified Dr. Brandon as the only treating source giving her work-related
restrictions and limitations. (Id.) She noted that she had last seen her neurologist, Dr. Capps,
several months prior and would make an appointment to see him again. (Id.) She identified Dr.
Amy Rudder as her chiropractor, for whom she provided a phone number. (Id.) She stated she
had not asked for restrictions and limitations from Dr. Rudder. (Id.) She identified Dr. James
George as a pain specialist whom she had last seen on May 10, 2016, and with whom she had
another appointment scheduled for June 7, 2016. (Id.) He had not provided restrictions and
limitations, as he did not “deal with the disability.” (Id. at 218–219.)
Clark noted that, in May 2016, Dr. Brandon had started her on Baclofec and that she had
previously taken Plaquenil but stopped because of a “build up of toxicity in her eyes.” (Id. at 219.)
Her treatment for lupus subsequently consisted of prednisone shots. (Id.) Clark described her
typical day as varying from day to day. (Id. at 220.) Some days she felt relatively well and was
able to be more active. (Id.) On such good days, she tried to walk, do light jobs around the house,
and drive short distances. (Id.) However, on “other days she [didn’t] feel like getting out of bed.”
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(Id.) She mentioned that climbing stairs was difficult due to the pain in her knees. (Id.) She could
climb but not repetitively. (Id.) She described her job as requiring “a lot of climbing and installing
instrumentation for testing purpose,” working in extreme temperatures, and working long hours.
(Id.) She also worked with computers and completed calibrations. (Id. at 221.)
On June 1, 2016, Unum sent Clark a letter requesting additional information and notifying
her of her right to request an independent medical examination, “should opinions differ on the
degree of medical impairment.” (Id. at 229.) The same letter also included Unum’s definition of
disability and what type of information Clark needed to provide in order to prove her claim of
disability. (Id.)
Unum’s internal notes reflect that Clabough, the claim administrator, forwarded Clark’s
file with all of the information provided by Clark for a “clinical review” and to a vocational
specialist for a determination of the physical requirements of her occupation, as performed in the
national economy. (Administrative Record, Part III, Docket No. 14-3 at 27.) Amy Oliver, an inhouse registered nurse at Unum, reviewed the file and concluded that the record did not support
disability. (Id. at 29.) Oliver noted that it was “unclear what changed” for Clark as of the disability
onset date, as there were no diagnostic tests or laboratory results that suggested a worsening of her
symptoms and conditions.
(Id. at 28–29.) In addition, Catherine C. Rogers, occupational
specialist, concluded that, based on Clark’s own description of her job, the occupation as
performed in the national economy qualified as “light” work, requiring the exertion of up to twenty
pounds of force, frequent sitting, reaching, handling and fingering, and occasional walking,
standing, stooping, and crouching. (Id. at 33-35.) Rogers found that the material and substantial
duties of Clark’s job included “[d]isassembl[ing] instruments and equipment, using hand tools,
and inspect[ing]components for defects”; “[m]easur[ing] parts for conformity with specifications,
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using micrometers, calipers, and other precision instruments”; and “[d]evis[ing] formulas to solve
problems in measurements and calibrations.” (Id. at 35.)
At this point, Unum determined that it needed additional information and sent Clark a
letter, dated June 29, 2016, giving her notice that it needed more time to assess her claim and that
its medical reviewer would need to contact Dr. Brandon to further discuss her medical condition.
(Id. at 39.) The record further documents Unum’s attempts to contact Dr. Brandon by telephone
and letter. Specifically, the record includes a letter dated June 30, 2016 from Dr. Trent Thomas—
an in-house board certified internist for Unum—to Dr. Brandon, noting that he had called Dr.
Brandon’s office that day and spoken with a receptionist. (Id. at 46.) The letter requested a return
call, as well as Dr. Brandon’s response to several questions. (Id.) The letter summarizes Clark’s
medical history and symptoms, based on the records in the file as of that date. (Id.) Dr. Thomas
specifically noted:
After review of the available medical records, I note no clear change/worsening in
Ms. Clark’s clinical/functional status around the time she ceased work (i.e. as
compared with previous when she continued in her occupational duties), and would
appreciate your further insight into her current functionality.
(Id.) He asked whether Dr. Brandon believed that Clark had the functional capacity to perform
light, full-time work requiring the exertion of up to 20 pounds of force, occasional standing,
walking, stooping, and/or crouching and frequent sitting, reaching, handling and fingering. (Id. at
47.) Dr. Thomas asked Dr. Brandon, if he did not find that Clark had the functional capacity to
perform the enumerated tasks, to discuss how the “specific physical examination and/or diagnostic
findings are affecting her current functional capacity.” (Id.)
The record reflects additional attempts to contact Dr. Brandon on July 13, 2016. (Id. at
54.) As a result of Dr. Brandon’s failure to respond to Dr. Thomas’s request for additional
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information, Dr. Thomas rendered his medical opinion, finding—upon a review of all of Clark’s
conditions individually and collectively, and with a reasonable degree of medical certainty—that
she did not meet the Policy’s definition of disability. (Id. at 61.) Specifically, while the medical
records documented a history of SLE, fibromyalgia, neuropathy, lumbar degenerative disc disease,
and essential tremor, all predating the disability onset date, Dr. Thomas found that the records did
not document a significant clinical worsening or change of Clark’s conditions around the alleged
disability onset date to support “long-term functional loss/impairment from [disability onset date]
onward” and that the reported severity of symptoms and functional impairment was out of
proportion to documented findings on physical examination and diagnostic study. (Id.) He stated:
o Available records do not document physical examination findings (e.g. skin
rash, synovitis, etc.) suggestive of active/flared lupus or connective tissue
disease.
o Serial examinations have not otherwise documented significant/consistent
musculoskeletal (e.g. muscle loss/atrophy, spinal/joint ROM abnormalities,
synovitis) or neurologic . . . deficits to suggest the claimant’s total functional
impairment, or to support proffered R/Ls [restrictions and limitations] (e.g. Dr.
Brandon, 3/7/2016, 4/15/2016, 5/16/2016, 6/16/2016).
o While acknowledging noted decreased cervical spine range of motion and/or
tender trigger points as is consistent with the claimant’s known history predating DOD, such findings would not be expected to result in the claimed
degree of ongoing or long-term functional impairment, especially given
preserved/intact musculoskeletal/motor function as in this case.
o In contrast to reported pain severity, available records fail to document
evident/observed pain behaviors at times of office visits, typically noting “no
acute distress.”
o Available records fail to document the claimant’s need for or use of any
assistance device for ambulation, balance issues, or pain control to date.
o Lumbar MRI of 7/2015 (again pre-dating DOD, at which time claimant
persisted in her occupational duties) reveals age-consistent degenerative
changes, otherwise [insignificant findings].
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o Available records otherwise include no laboratory testing . . . in assessment of
reported symptoms (e.g. fatigue, pain, cognitive issues), or in support of
proffered restrictions/limitations.
o Of note, while available records reference “positive ANA, low white blood cell
count, elevated C-reactive protein” as might be consistent with the known
history of [SLE], such lab reports are not included within medical file for
review. As such, I am uncertain as to the date/timing of referenced lab findings.
I will be happy to consider/review such findings if/when they become available.
The claimant’s ongoing treatment efforts are not consistent with the stated
severity, persistence and/or impact of the claimed medical symptoms:
o Available records do not document significant/escalating use of antiinflammatory or narcotic pain medications in attempts to control reported pain
symptoms.
o Available records fail to document any increase in intensity of treatment around
DOD to suggest significant clinical/functional change or worsening at that time,
otherwise without current/ongoing treatment/management of [SLE] (e.g.
medications, Rheumatology referral/follow-up) other than episodic steroid
injections per AP Brandon (e.g. 4/15/2016).
o Available records document stable ongoing treatment/management of
fibromyalgia/chronic pain symptoms, including use of Cymbalta and Lyrica,
otherwise without significant dose adjustments (i.e. Cymbalta increased from
once to twice daily, 3/2016) of these medications from 3/2016 onward.
o The majority of recent office visits with AP Brandon . . . focus on
discussion/paperwork regarding “disability,” as opposed to ongoing workup
and/or management/treatment of reported disabling medical conditions.
In specific consideration of reported complaints/conditions, I do not find
documented evidence of ongoing functional impairment related to:
o [SLE], as available records document the claimant’s history of lupus dating to
1997, otherwise without documentation of physical examination
deficits/abnormalities or recommendation for change in treatment/management
of lupus from pre-DOD to current to suggest/support any significant change in
functional status relating to this diagnosis.
o Fibromyalgia, as this condition would not be expected to result in any
significant ongoing or long-term functional loss/impairment, and is typically
treated with recommendation for increased (i.e. as opposed to decreased or no)
physical activity.
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o Neuropathy, as available records fail to document any motor/sensory deficits
consistent with this diagnosis, nor include any diagnostic studies (e.g.
EMG/nerve conduction study) in confirmation of this diagnosis.
o “Disc degeneration in back,” as records fail to document any significant
physical/neurological examination deficits (e.g. motor/sensory deficits,
abnormal gait, use of assistive device) to suggest/support the claimed degree of
functional impairment relating to this condition.
§ Per 5/27/2016 Initial Call, AP Dr. James George treats claimant for “pain,”
otherwise without restrictions/limitations from this treatment provider.
§ While records reference follow-up with AP George from 9/2015 to current,
such treatment notes are not included for review. However, given preserved
neurologic/motor function as above, and no restrictions/limitations from this
provider, OSP [Dr. Thomas] feels adequate information is otherwise contained
within medical file to arrive at conclusions below. I will be happy to review
records per AP George if/when they become available.
o Carpal tunnel syndrome, as available records document no specific
physical/neurologic examination deficits . . . to suggest/support ongoing or
long-term functional impairment relating to this condition.
§ While records referenced prior EMG/nerve conduction study . . . , such report
is not included for review.
o Sleep apnea, as available records fail to document any evident/observed
symptoms relating to this condition . . . or specific treatment (e.g. CPAP) to
date.
o Dizziness, as records fail to document any significant evaluation . . . of this
complaint, abnormal physical findings . . . , or specific recommendation for
treatment to date.
(Id. at 61–63.) Dr. Thomas also found that Clark’s reported physical activities were not consistent
with the claimed level of functional impairment because she reported that, “on a good day,” she
could walk a little, do light housework, and drive short distances, climb stairs but not repetitively,
and lift no more than twenty pounds. (Id. at 63.) He also found that no impairment based on
cognitive difficulties or behavioral health conditions was documented in the medical records. (Id.)
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Dr. Thomas also noted that he had considered the utility of an independent medical examination
but believed there was adequate information in the file for him to make his assessment. (Id.)
He concluded:
The available medical evidence does not support stated R/Ls as stated per AP
Brandon for any time period . . . because the documented physical examination
findings, diagnostic study findings, and ongoing intensity of treatment are not
consistent with the claimed degree of functional impairment, and records are
otherwise without documentation to suggest significant change in
clinical/functional status from pre-DOD (i.e. at which time the claimant persisted
in her occupational duties) to current, with stable treatment/management of chronic
medical conditions, including systemic lupus erythematosus and/or fibromyalgia,
during this time.
Therefore, after review of the available medical information/records, it is my
opinion the medical evidence is most consistent with the claimant’s capacity to
perform full-time functional demand from DOD to ongoing to include at least:
o Exerting up to 20 pounds of force;
o Frequent sitting, reaching, handling, and/or fingering;
o Occasional walking, standing, stooping, and/or crouching.
(Id. at 63–64.) Unum summarized Dr. Thomas’s findings as follows: “In other words, Plaintiff
had been working for many years with the same conditions, and the records did not indicate any
significant change to warrant a disability finding as of the elimination period or thereafter.”
(Docket No. 18 at 8.)
Following Dr. Thomas’s review, Dr. Norman Bress—an in-house physician at Unum with
board certifications in internal medicine and rheumatology—conducted a second review of Clark’s
file. (Docket No. 14-3 at 65.) Unum requested the additional review because Dr. Thomas
disagreed with Dr. Brandon. Dr. Bress similarly found a lack of support for the restrictions and
limitations identified by Dr. Brandon. Specifically, Dr. Bress found Clark’s SLE to be “mild or
very well controlled” because, amongst other factors, Clark was not taking specific medication for
SLE and was not followed by a rheumatologist. (Id. at 69.) He also noted that, while Clark fit the
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criteria for fibromyalgia, it did not prevent her from performing her occupational demands. In
support, he cited the following factors:
There is no evidence of a flare of [fibromyalgia] symptoms at or around the date of
disability to explain her cessation of work. No muscle weakness has been
documented. There is no mention that the insured appeared fatigued or chronically
ill on exam. No cognitive deficit was noted during any exams.
(Id. at 68.)
On July 28, 2016, Unum denied Clark’s claim for benefits. (Id. at 77.) Based upon the inhouse reviews conducted by Oliver, Dr. Thomas, and Dr. Bress, Unum made the following
conclusions:
Your physical examination findings, diagnostic study findings and ongoing
intensity of treatment are not consistent with the reported degree of functional
impairment. Your medical records do not provide documentation to suggest
significant change in your clinical/functional status from prior to disability to the
current, with stable treatment/management of chronic medical conditions,
including systemic lupus erythematosus and/or fibromyalgia.
(Id. at 78.) Based on these conclusions, Unum determined that Clark has the capacity to perform
her job full-time at functional demand level, including exerting up to twenty pounds of force,
frequent sitting, reaching, handling and/or fingering and occasional walking, standing, stooping
and/or crouching. (Id.)
III.
First appeal
On January 20, 2017, Clark submitted her formal appeal of Unum’s denial. (Id. at 141.)
Clark argued in her appeal letter that she was unable to perform the material and substantial duties
of her job, that her condition had deteriorated over the preceding several years, and that her claim
file included incorrect clinical findings. (Id. at 141–146.) In support of these contentions, she
submitted the following documents: a letter from Dr. Brandon (id. at 181); a letter from Dr. Alan
Elliott, Clark’s rheumatologist (id. at 186); an affidavit from Robert Grimes, her former supervisor
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(id. at 174); an affidavit by Clark submitted on her own behalf (id. at 166); additional records from
Dr. Capps, including an August 24, 2016 Electromyography Nerve Conduction Studies Report
(“Nerve Conduction Report”) and results from a December 6, 2016 physical examination (id. at
187), and; a letter from Dr. Peter Donofrio, a neurologist who reviewed Clark’s Nerve Conduction
Report results (id. at 216).
Clark identified three specific clinical findings as incorrect. First, Unum found that Clark’s
SLE was mild or well controlled because she was not taking medication for SLE. (Id. at 69.) In
response, Clark cited Dr. Capps’ records, which show that Clark was taking methylprednisolone
for her SLE. (Id. at 195.) Dr. Donorfio also noted that Clark was prescribed depo-medrol
suspension for injection and methylprednisolone for her SLE. (Id. at 217.) And Dr. Brandon
reiterated that Clark had previously taken Plaquenil for her SLE but was forced to discontinue
usage, due to side effects. (Id. at 181.)
Second, Unum found that Clark’s SLE was mild or well-controlled because she was not
followed by a rheumatologist. (Id. at 69.) In response, Clark cited Dr. Brandon’s letter, which
states that Clark has been under the care of rheumatologists since her diagnosis in 1998. (Id. at
181.) In addition, Dr. Capps’ records state that, in December 2016, Clark was under the care of a
rheumatologist. (Id. at 194.) Dr. Elliott’s letter confirmed that he was treating her in December
2016 (Id. at 186).
Third, Unum found that Clark’s disc degeneration in her back was not adequately
documented. (Id. at 62.) In response, Clark cited a 2015 report from United Regional Medical
Center that shows she has Lumbar Degenerative Disc Disease. (Id. at 187.) She also submitted
results from a June 16, 2016 exam with Dr. Brandon, in which Clark exhibited spasms and multiple
tender points in the lumbar area. (Id. at 188.) Finally, she stated in her affidavit that her back
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problems led to restrictions at work, which prevented her from performing on catwalks. (Id. at
172.)
Clark also contested Unum’s central finding that her condition had not deteriorated in the
years preceding her benefits claim. Dr. Brandon explained at length how, in his view, Clark’s
condition had deteriorated in recent years. (Id. at 182.) Grimes similarly testified that Clark “was
always very energetic and intense, until her Lupus progressed.” (Id. at 175.) He noted that her
health rapidly deteriorated in her last 12-18 months on the job, adding that she “would grow tired
easily, often limping up and down stairs.” (Id.) He testified that, toward the end of her
employment, he “allowed her to take more and more time off work because of her weakened
condition.” (Id.)
Dr. Donofrio corroborated Grimes’s observation that Clark’s condition had worsened. A
professor of neurology and director of the Neuromascular Division at Vanderbilt University
Medical Center, Dr. Donofrio has worked as an instructor of neurology for nearly 40 years and has
conducted research, published journal articles, and written textbook chapters on neuropathy and
electromyography. He reviewed Clark’s past and present medical history, nerve conduction
studies from 2006 and 2015, a medical report by Dr. Brandon, a copy of Clark’s job description,
and the findings of the 2016 Nerve Conduction Report conducted by Dr. Capps, which found a
worsening of Clark’s neuropathy. (Id. at 216.) Dr. Donorfio confirmed Dr. Capps’ findings and
summarized the Nerve Conduction Report as follows:
[Clark] returned on August 24, 2016 for follow-up nerve conduction studies with
complaints of worsening gait and weakness in the legs. The study on that day
showed worsening of her motor amplitudes and greater slowing of conduction
velocity. F-waves were now absent in the right peroneal and left tibial nerves. They
had been present during [Clark’s] study in 2006. The official interpretation of the
study on August 24, 2016 was progression and worsening of her neuropathy.
16
(Id.) Considering the results of the Nerve Conduction Report in the context of Clark’s other
documentation, Dr. Donorfio offered the following assessment:
This reviewer agrees that the patient has a peripheral neuropathy and there is
verifiable progression since 2005 based on her nerve conduction study results of
worsening amplitudes, slowing of conduction velocity, and absent F waves that
were present in 2005. Her diffuse neuropathy, most likely due to long-standing
lupus, is confounded by carpal tunnel syndrome in both hands. Patients with carpal
tunnel syndrome usually have numbness of digits 1-3 of both hands, pain in the
fingers and hands, and weakness of the thumb. These features would interfere with
fine manipulation of objects. The tremor in her hands makes fine manipulation of
small objects even more difficult.
In conclusion, Mrs. Clark is disabled from her position as an instrument technician
1 for the reasons identified above. Nerve conduction studies performed in 2016
show clear worsening since 2005 and now there is the superimposition of carpal
tunnel syndrome affecting both hands.
(Id. at 217.)
Unum referred the appeal to Dr. Jonathan McCallister, an in-house, board certified
internist. Dr. McCallister determined that Clark’s reports of functional loss were not consistent
with her file information and medical records. (Administrative Record, Part V, Docket No. 14-5
at 38.) He further concluded that Clark’s medical records did not reflect an inability to perform
light duty work, the category in which her position falls in the national economy. (Id. at 40.) Dr.
McCallister made the following specific findings:
o Laboratory data is consistent with a diagnosis of SLE, showing elevated ANA
and mildly elevated DSDNA, but inflammatory biomarkers such as CRP and
sed rates have been consistently normal or only very mildly elevated for many
years. This finding is inconsistent with the presence of active inflammation.
o The medical records reflect certain tender points as well as occasional crepitus
in the knee, but the records do not reflect consistent or ongoing evidence, upon
physical examination, of swelling, deformity, effusion, edema, atrophy,
weakness, significant decrease in range of motion of the extremities, synovitis
or nodules.
o Plaintiff’s treatment for SLE has been mild, having first been prescribed
Plaquenil, a first line drug for mild SLE. Prescription of that medicine was
17
discontinued due to side effects with Plaintiff’s eyes. The medical records also
reflect short courses of steroids as treatment for SLE, but no use of long-term
steroid, narcotic pain medication or advanced medicines used to treat SLE.
o Plaintiff’s fibromyalgia records are minimal, and include low dose Lyrica,
which was prescribed for her neuropathy, and Cymbalta, the dosage for which
has undergone minimal changes. No other medical trials or changes are
recorded.
o No type of therapy (physical, occupational, aqua, chiropractic) or other
noninvasive treatments for chronic pain are noted in the records.
o Plaintiff’s MRI of her lumbar spine show only mild degenerative changes
without noted formation or canal stenosis. Plaintiff was never referred to an
orthopedic or neurosurgical specialist, nor do the records show any injections
or non-invasive treatments to try to alleviate back pain.
o Plaintiff did not seek pain management care until late 2016, but prior to that
date, no pain management care was sought, nor has Plaintiff been aggressively
treated with pain medication.
o Plaintiff’s records do not reflect emergency or urgent care.
o Knee pain is noted in both knees, having been treated with steroid injections,
but there appears to be no historical record of knee pain, nor degeneration of
the knee condition on exam, such as swelling, decreased range of motion,
effusion.
o Plaintiff was never referred to an orthopedist for back or knee pain.
o No records were provided regarding imaging of Plaintiff’s hands, wrists, ankles
or feet, which would be consistent with inflammatory arthritis patients, and
minimal office visits to a rheumatologist are noted, with a gap existing between
early 2013-September 2016.
Plaintiff’s neuropathy is documented as mild in her extremities, but there is no
documentation regarding pain with light touch, weakness, atrophy, reflex
changes, loss of two-point discrimination or other neurological abnormalities.
According to the records, Plaintiff’s neuropathy is well-controlled with low
doses of Lyrica.
Further, Plaintiff’s visits to the neurologist are only semi-annual.
o Plaintiff’s essential tremor issue is documented in the neurological records as a
mild resting tremor, but her primary care physician and rheumatology records
do not consistently reflect this condition. The tremor issue has been wellcontrolled with no changes to medication or treatment.
18
o Plaintiff’s medical records do not reflect any cognitive testing or treatment
regarding alleged cognitive issues. The only cognitive notation is with regard
to occasional memory loss. Plaintiff continues to drive and handle daily tasks
such as shopping and bill payment.
o Plaintiff’s carpal tunnel condition is described as mild via her EMG/NCV
testing, and she has been conservatively treated for that condition through the
use of splints. No orthopedic or neurologic surgeon has been consulted nor has
Plaintiff undergone any injection therapy for the condition. The medical
records do not reflect thenar atrophy, hand weakness or sensory loss of the
hands on physical examination, nor do they reflect any therapy for the
condition.
(Docket No. 18 at 14 (citing Docket No. 14-5 at 39–40).) On April 4, 2017, Unum issued its
written decision denying Clark’s appeal. (Docket No. 14-5 at 47.) Unum noted that an in-house
vocational specialist, Richard Byard, completed an occupational analysis and found that Clark’s
position of lead technician, as performed in the national economy, requires the following:
Physical demands:
•
•
•
Occasional lifting, carrying, pushing, pulling up to 20 pounds of force
Frequent sitting, reaching, handling and fingering
Occasional walking, standing, stooping and crouching
Cognitive demands:
•
•
•
Attaining precise set limits, tolerances and standards
Performing a variety of other duties
Making judgments and decisions
(Docket No. 14-5 at 49.) Based on Dr. McCallister’s findings, Unum provided assertions
underlying the basis for its decision to deny Clark’s appeal, including the following:
The records do not reflect use of long-term steroids, narcotic pain medications,
biologic agents, Methotrexate, Cyclosporin, or other advanced agents used to treat
SLE.
(Id. at 49–50.)
There has not been ongoing or consistent treatment with physical therapy,
occupational therapy, aquatherapy, bio-feeback, chiropractic therapy, or other
19
non-invasive treatment methods for chronic pain.
(Id. at 50 (emphasis added).)
Ms. Clark has only minimally been evaluated by her rheumatologist, Dr. Elliott,
and he did not see her around the time she stopped working in February 2016.
There is a gap in treatment from early 2013 until she was seen on September 12,
2016 when she was “self referred for evaluation of a history of lupus.” This lack
of rheumatology treatment/follow-up is inconsistent with a severe rheumatologic
conditions [sic].
...
Office records inconsistently document mild decreased sensation of the lower
extremities but do not reflect the presence of hyperpathia (pain with light touch),
weakness, atrophy, reflex changes, loss of two point discrimination, or other
neurologic abnormalities.
...
Ms. Clark’s neuropathy has been well controlled on low dose Lyrica without the
need for increasing dosage of this medication, changes to alternative medications,
or the addition of other medications. The records do not reflect use of narcotic pain
medications. Referral to pain management did not occur until late 2016, well after
your client stopped working.
...
Your client is seen by neurology infrequently, approximately every six months.
More frequent follow-up would be expected were her neuropathy considered severe
or worsening. At her December 6, 2016 appointment, no return appointment was
scheduled according to the office note.
(Id.)
IV.
Second appeal
On April 28, 2017, Clark filed her formal second appeal. (Id. at 87.) Clark provided
additional records in support of her second appeal. These records included: another letter from
Dr. Elliott (id. at 92); another letter from Dr. Brandon (id. at 160); a letter from Clark’s
chiropractor, Dr. Amy Rudder (id. at 169); records from a rheumatologist, Dr. Robert LaGrone
20
(id. at 171); a second affidavit from Clark (id. at 178); and pain management records from Jennifer
Alexander, a nurse practitioner at Comprehensive Pain Specialists 2 (id. at 197). Through these
materials, Clark refuted each of the underlying assertions excerpted above that Unum offered as
justification for its denial of Clark’s appeal:
•
Contrary to Unum’s claim that records do not reflect use of long-term
steroids or narcotic pain medications, Dr. Brandon’s letter confirms that
Clark has a long-term prescription for Tramadol, a controlled pain
medication. (Id. at 160.) Moreover, Dr. Brandon notes that Clark does not
tolerate higher doses of prescribed medications as Lyrica, which would
otherwise be used to treat her SLE. (Id. at 161.) Clark also testified in her
affidavit that she had been on a long-term steroid treatment plan, but was
forced to discontinue use at her doctor’s recommendation after experiencing
side effects including extreme nervousness and insomnia. (Id. at 178–79.)
•
Dr. Rudder’s letter confirms that she had provided Clark chiropractic
treatment 33 times since 2011, contrary to Unum’s claim that Clark had not
received ongoing chiropractic treatment for chronic pain. (Id. at 169.)
•
Dr. LaGrone’s records confirm that Clark saw him four times between June
2014 and September 2016, contradicting Unum’s assertion that there was a
gap in Clark’s rheumatological treatment during that period. (Id. at 171–74.)
•
Contrary to Unum’s claim that Clark was not referred to pain management
until after she stopped working in late 2016, Clark provided documentation
showing that she was referred to pain management on March 18, 2014 for
low back and neck pain, on July 16, 2014 for headache, neck pain, and low
back pain, and on November 25, 2014 for low back pain. In each of these
visits, Clark’s pain was reported as “fluctuating but always present.” (Id. at
198–214.)
On May 5, 2017, Unum referred the second appeal to Dr. Scott Norris, an in-house board
certified family and occupational physician, to determine whether Dr. McCallister’s opinion was
correct in light of Clark’s supplemental records. (Id. at 190.) Dr. Norris found that “the additional
2
The pain management records were added to the record by Clark in a May 19, 2017
supplemental letter. (Docket No. 14-5 at 196.)
21
medical evidence received does not contain clinical data that supports a different conclusion than
Dr. McCallister stated in his . . . review.” (Id. at 192.) Dr. Norris found that “[t]reatment
referenced in the newly received records was generally [consistent with] descriptions of treatment
noted in the prior file records.” (Id. at 193.) On May 23, 2017, Unum denied Clark’s second
appeal. (Id. at 232.) Unum made the following findings:
There were no new examination findings identified in these recent records relevant
to Ms. Clark’s clinical and functional status as of February 15, 2016 through the
elimination period (a period of continuous disability that must be satisfied before
benefits are payable) that ended May 15, 2016. Diagnostic testing/imaging and
treatment were consistent with the prior medical data. New or revised opinions
regarding impairment were not provided by Ms. Clark’s medical providers. Dr.
Brandon’s prior opinion remains unchanged.
Our Appeals reviewing doctor considered all your client’s conditions individually
and together, along with the opinions of Ms. Clark’s treating providers. He
determined that medical data does not reflect the expected frequency/intensity of
treatment or the expected abnormalities on examination and testing commensurate
with your client’s reported level of impairment. He concluded that your client has
the functional capacity to perform on a full-time basis the physical and
cognitive/mental demands described on page three of the enclosed letter from
February 15, 2016 forward.
(Id. at 233.)
On August 7, 2017, Clark filed suit in this court (Docket No. 1).
LEGAL STANDARD
Judicial review of the denial of benefits under ERISA is de novo, unless the ERISA plan
at issue gives the administrator “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).
If the language of the plan grants the plan administrator discretionary authority to determine
eligibility benefits or to construe plan terms, then the determination is reviewed under the highly
deferential “arbitrary and capricious” standard. Id.; Hunter v. Caliber Sys., Inc., 220 F.3d 702,
22
710 (6th Cir. 2000). For the arbitrary and capricious standard to apply, “the plan must contain ‘a
clear grant of discretion [to the administrator] to determine benefits or interpret the plan.’” Perez
v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (en banc) (quoting Wulf v. Quantum
Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1994) (emphasis in original)).
In the present case, the Policy clearly and unambiguously grants Unum discretion and
authority to determine eligibility for benefits and to construe and interpret all terms and provisions
of the group policy. (Doc. No. 14-1 at 42.) Cf. Univ. Hosps. of Cleveland v. Emerson Elec. Co.,
202 F.3d 839, 846 (6th Cir. 2000) (applying arbitrary and capricious standard where the plan
provided that the plan’s administrator “shall have the discretionary authority to determine
eligibility for benefits or to construed the terms of the Plan”). The court will therefore review
Unum’s decision under the “arbitrary and capricious” standard.
“The arbitrary or capricious standard is the least demanding form of judicial review of
administrative action.” Davis By & Through Farmers Bank & Capital Trust Co. of Frankfort, Ky.
v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989) (quoting Pokratz v. Jones Dairy
Farm, 771 F.2d 206, 209 (7th Cir. 1985)). A decision is not arbitrary or capricious if it is rational
in light of the Plan’s provisions. Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th
Cir. 1996). Stated differently, a claim administrator’s decision is not arbitrary and capricious if it
“is based on a reasonable interpretation of the plan.” Shelby Cty. Health Care Corp. v. S. Council
of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 933–34 (6th Cir. 2000). Moreover,
a court must accept an administrator’s rational decision, if it is not arbitrary or capricious, even in
the face of an equally rational interpretation of a plan offered by a participant. Gismondi v. United
Techs. Corp., 408 F.3d 295, 298 (6th Cir. 2005) (citing Morgan v. SKF USA, Inc., 385 F.3d 989,
992 (6th Cir. 2004)).
23
The “arbitrary and capricious” standard of review “is not, however, without some teeth.”
McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003). Deferential
review does not mean no review, and deference need not be abject. Id. Under the “arbitrary and
capricious” standard, the district court must “review the quality and quantity of the medical
evidence and the opinions on both sides of the issues,” and it generally must uphold an
administrator’s decision if that decision is shown to be “the result of a deliberate, principled
reasoning process” and “supported by substantial evidence.” De Lisle v. Sun Life Assurance Co.
of Can., 558 F.3d 440, 444 (6th Cir. 2009) (citations omitted).
Deferential review is tempered to some extent, however, in the presence of a conflict of
interest. “When the same entity determines eligibility for benefits and also pays those benefits out
of its own pocket, an inherent conflict of interest arises. In close cases, courts must consider that
conflict as one factor among several in determining whether the plan administrator abused its
discretion in denying benefits.” Cox v. Standard Ins. Co., 585 F.3d 295, 299 (6th Cir. 2009) (citing
Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2345 (2008); De Lisle, 558 F.3d at 444). The degree
of weight accorded this factor will vary depending on the circumstances, as the Supreme Court has
recognized:
The conflict of interest at issue . . . should prove more important (perhaps of great
importance) where circumstances suggest a higher likelihood that it affected the
benefits decision, including, but not limited to, cases where an insurance company
administrator has a history of biased claims administration. It should prove less
important (perhaps to the vanishing point) where the administrator has taken active
steps to reduce potential bias and to promote accuracy, for example, by walling off
claims administrators from those interested in firm finances, or by imposing
management checks that penalize inaccurate decisionmaking irrespective of whom
the inaccuracy benefits.
Glenn, 128 S. Ct. at 2351.
ANALYSIS
24
To determine whether the denial of benefits was arbitrary or capricious, courts must
consider the “guideposts that have been established by [the Sixth Circuit] with regard to ERISA
benefit determinations.” Filthaut v. AT&T Midwest Disability Benefit Plan, 710 F. App’x 676,
681 (6th Cir. 2017) (quoting Evans v. UnumProvident Corp., 434 F.3d 866, 876–77 (6th Cir.
2006)). In Shaw v. ATT&T Umbrella Ben. Plan No. 1, 795 F.3d 538 (6th Cir. 2015), the Sixth
Circuit adopted a four-factor test for determining whether a plan administrator defendant
arbitrarily and capriciously denied the plaintiff long-term disability benefits: whether the
administrator “ignored favorable evidence submitted by [the plaintiff’s] treating physicians,
selectively reviewed the evidence it did consider from the treating physicians, failed to conduct its
own physical examination, and heavily relied on non-treating physicians.” Id. at 547. The Sixth
Circuit noted that, although “none of the factors alone is dispositive,” taken together “they support
a finding that [the administrator] did not engage in a deliberate and principled reasoning process.”
Id. at 551 (quoting Helfman v. GE Grp. Life Assurance Co., 573 F.3d 383, 396 (6th Cir. 2009)).
The court will address each factor in turn.
a. Ignoring favorable evidence
A plan administrator acts in an arbitrary and capricious manner when it ignores important
pieces of evidence. Id. at 548 (quoting Black & Decker Disability Plan v. Nord, 538 U.S. 822,
834 (2003)) (“[Administrators] ‘may not arbitrarily refuse to credit a claimant’s reliable evidence,
including the opinions of a treating physician.’”). Clark contends that Unum ignored favorable
evidence that her condition had worsened prior to seeking LTD. Unum’s finding that Clark’s
condition had not worsened was central to its denial of benefits. Indeed, Unum repeatedly
emphasized the point in its briefing. See (Docket No. 23 at 5 (“[Clark’s] claim for disability
benefits was denied because there was not sufficient proof that her multiple conditions, although
25
verifiable, had meaningfully changed in terms of severity or treatment to warrant disability benefits
as compared with the previous five years in which [Clark] worked full-time in her regular
occupation with those same conditions.”).); see also (Docket No. 18 at 24 (“Unum concluded that
Plaintiff’s condition during the elimination period was not appreciably different from her condition
prior to that period when she was working full time.”).); (Id. at 25 (“Four in-house medical
professionals reviewed Plaintiff’s claim file. All four noted that, based on the medical records,
Plaintiff’s conditions had not deteriorated during the elimination period so as to cause her
providers to alter their long-standing medical treatment for Plaintiff . . . . Similarly, no significant
change in her condition was reflected in the records to warrant a limitation in her duties as a lead
instrument technician.”).)
On appeal, Clark provided evidence in support of Dr. Capps’ finding that, per her Nerve
Conduction Report, her neuropathy had worsened in June 2016. (Docket No. 14-3 at 192.) Dr.
Donorfio’s letter explicitly contradicted Unum’s finding that Clark’s condition had not worsened.
See (id. at 217 (“This reviewer agrees that the patient has a peripheral neuropathy and there is
verifiable progression since 2005 based on her nerve conduction study results of worsening
amplitudes, slowing of conduction velocity, and absent F waves that were present in 2005.”).) So
did the affidavit submitted by Clark’s supervisor Robert Grimes, which explained in detail how
Clark’s condition observably deteriorated in her last few months on the job. (Id. at 175.) In its
denial of Clark’s appeal, Unum noted that Clark suffers from peripheral neuropathy and stated that
it had reviewed Dr. Donorfio’s letter, but it made no mention of its critical finding that Clark’s
condition had not worsened. (Docket No. 14-5 at 50.) However, in its briefing, Unum argues that
the documents provided by Clark in support of her first appeal—including Dr. Donorfio’s letter—
actually support Unum’s original contention that Clark’s condition had not changed:
26
Those records offered a more complete view of Plaintiff’s medical condition and,
as pointed out by Dr. McAllister’s review, provided further basis for Unum’s
decision that, [sic] nothing physically changed with Plaintiff’s condition to
warrant support for Dr. Brandon’s restrictions and limitations during the
elimination period, which is the time-period under review.
(Docket No. 18 at 21–22 (emphasis added).) Neither Dr. McCallister’s review nor Unum’s denial
letter engaged evidence that Clark’s neuropathy had worsened. Unum physicians provided no
alternative analysis of the Nerve Conduction Report. In sum, Unum “never addresse[d] head-on
and simply seemed to ignore,” Calvert v. Firstar Fin. Inc., 409 F.3d 286, 297 (6th Cir. 2005),
evidence favorable to Clark’s claim.
b. Selectively reviewing evidence
“An administrator acts arbitrarily and capriciously when it ‘engages in a selective review
of the administrative record to justify a decision to terminate coverage.’” Id. at 549 (quoting
Metro. Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007)). Benefits decisions cannot be
based on “factually incorrect assertion[s].” Id. at 548 (6th Cir. 2015) (citing Butler v. United
Healthcare of Tenn., Inc., 764 F.3d 563, 568 (6th Cir. 2014)). Unum’s April 4, 2017 letter denying
Clark’s appeal included a host of inaccurate assertions and findings that were subsequently refuted
by Clark’s supplemental records. Unum stated that Clark’s records did not reflect use of longterm steroids or narcotic pain medications. (Docket No. 14-5 at 49–50.) However, Clark has a
long-term prescription for Tramadol, a controlled pain medication, and does not tolerate higher
doses of some prescribed medications, such as Lyrica. (Id. at 160–61.) Clark also had been on a
long-term steroid treatment plan but was forced to discontinue use after experiencing side effects.
(Id. at 178–79.) Unum asserted that Clark had not undertaken ongoing or consistent chiropractic
therapy for chronic pain. (Id. at 50.) But Dr. Rudder treated Clark 33 times between 2011 and
2016. (Id. at 169.) Unum claimed that there was a gap in Clark’s rheumatological treatment from
27
2013 until 2016. (Id. at 50.) In fact, Clark saw Dr. LaGrone four times in that period. (Id. at 171–
74.) Finally, Unum asserted that Clark was not referred to pain management until late 2016, after
she stopped working. (Id. at 50.) But Clark was referred to pain management on March 18, 2014
for low back and neck pain, on July 16, 2014 for headache, neck pain, and low back pain, and on
November 25, 2014 for low back pain. (Id. at 198–214.)
Dr. Norris, Unum’s appeal physician, listed all of Clark’s supplemental records with brief
descriptions in his appeal review. (Id. at 193.) So did Unum’s May 23, 2017 denial letter, which
tracked Dr. Norris’s review analysis. (Id. at 233.) But merely restating unfavorable evidence is
insufficient to satisfy the arbitrary and capricious standard. See Butler, 764 F.3d at 568 (finding
review arbitrary and capricious where the administrator baldly mentioned evidence favorable to
the plaintiff but nonetheless concluded that he did not qualify for benefits). Unum failed to
reconcile the discrepancies between its stated reasons for denial of Clark’s appeal and Clark’s
actual treatment history, as documented in the supplemental records.
Dr. Norris made no mention of how, or if, those discrepancies—which bore directly and
materially on the frequency and intensity of Clark’s treatment—impacted his endorsement of Dr.
McCallister’s finding that “the available medical records do not reflect the expected
frequency/intensity of treatment . . . commensurate with the claimant’s reported level of
impairment as of 02/15/16 forward.” (Docket No. 14-5 at 192.) Provided with documentation of
Clark’s thirty-plus instances of chiropractic treatment, Dr. Norris did not address Dr. McCallister’s
prior finding that Clark’s pain management was inconsistent. He did not state whether he shared
Dr. McCallister’s view that Clark’s rheumatological conditions were non-severe in light of
evidence that there was no gap in her treatment. He did not revisit Dr. McCallister’s finding that
Clark had undertaken only mild treatment for her SLE, despite evidence that she was on narcotics,
28
was restricted from more serious medication options, and had been referred to pain management
repeatedly before her elimination period. Instead, in the face of those discrepancies, he made
conclusory findings that “[t]he additional clinical information describes ongoing Rheumatologic,
Family Medicine, and Chiropractic Care for [fibromyalgia], SLE, OA, and mild degenerative
lumbar [disease] [consistent with] previous records,” (id. at 193), and that the“[t]reatment
referenced in the newly received records was generally [consistent with] descriptions of treatment
noted in the prior file records.” (Id.) In failing to address the significant ways in which Clark’s
supplemental materials augmented the administrative record—and thereby refuted numerous
factual bases upon which her first appeal was denied—Unum disregarded unfavorable evidence, a
hallmark of selective review. See Shaw, 795 F.3d at 549 (finding review arbitrary and capricious
where plan physician failed to explain his finding in light of evidence contradicting it).
c. Failing to conduct its own physical evaluation
“Generally, when a plan administrator chooses to rely upon the medical opinion of one
doctor over that of another in determining whether a claimant is entitled to ERISA benefits, the
plan administrator’s decision cannot be said to have been arbitrary and capricious . . . .”
McDonald, 347 F.3d at 169. However, “[w]hether a doctor has physically examined the claimant
is indeed one factor that [the court] may consider in determining whether a plan administrator
acted arbitrarily and capriciously in giving greater weight to the opinion of its consulting
physician.” Kalish v. Liberty Mut./Liberty Life Assur. Co., 419 F.3d 501, 508 (6th Cir. 2005).
Although “reliance on a file review does not, standing alone, require the conclusion that [the
administrator] acted improperly . . , the failure to conduct a physical examination—especially
where the right to do so is specifically reserved in the plan—may, in some cases, raise questions
about the thoroughness and accuracy of the benefits determination.” Calvert, 409 F.3d at 295.
29
The Sixth Circuit has also held that, when an employee contends that she is disabled by
chronic pain and the governing plan gives the administrator the right to physically examine the
employee, discounting the employee’s pain without conducting a physical examination “weighs
in favor of a determination that the denial of [the employee’s] claim was arbitrary and capricious.”
See Godmar v. Hewlett-Packard Co., 631 F. App’x. 397, 407 (6th Cir. 2015); see also Shaw, 795
F.3d at 550 (“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.”). “While ‘plans generally are not obligated to order additional medical tests, in
cases such as this, plans can assist themselves, claimants, and the courts by helping to produce
evidence sufficient to support reasoned, principled benefit determinations.’” Guest-Marcotte v.
Life Ins. Co. of N. Am., 730 F. App’x 292, 301 (6th Cir. 2018) (quoting Elliott, 473 F.3d at 621).
That Unum did not examine Clark supports a finding of arbitrariness and capriciousness.
This is especially so, given that Clark suffers from chronic pain. Unum contends that this factor
should not militate against it because Clark had the option to order a personal review herself. In
support, Unum cites the Sixth Circuit’s decision in Filthaut v. AT&T Midwest Disability Benefit
Plan. 710 F. App’x at 685 (6th Cir. 2017). Unum is correct that the plaintiff maintains the burden
of proving her disability, as the Filthaut court noted. Id. But, despite reiterating that there is
“nothing inherently objectionable about a file review by a qualified physician in the context of a
benefits determination,” the Filthaut court found that “the strongest factor weighing in [the
plaintiff’s] favor is that the Plan neglected to order a physical examination.” Id.
d. Heavily relying on physician consultants
“[W]hen a plan administrator’s explanation is based on the work of a doctor in its employ,
[courts] must view the explanation with some skepticism.” Moon v. Unum Provident Corp., 405
30
F.3d 373, 381–82 (6th Cir. 2005). “The Supreme Court has acknowledged ‘that physicians
repeatedly retained by benefits plans may have an incentive to make a finding of ‘not disabled’ in
order to save their employers money and to preserve their own consulting arrangements.’” Elliott,
473 F.3d at 620 (quoting Nord, 538 U.S. at 834); see also Butler, 764 F.3d at 569 (“United adds
that the decision to deny benefits cannot be arbitrary and capricious because five reviewing
physicians agreed with it. That reviewing physicians paid by or contracted with the insurer agree
with its decision, though, does not prove that the insurer reached a reasoned decision supported by
substantial evidence.”). The reviewing physicians for Unum in this case were all in-house
physicians employed by Unum. Moreover, Unum both determines eligibility for benefits under
the Plan, and also pays those benefits out of its own pocket.
e. Determination and remedy
The four Shaw factors must be considered in the aggregate. See Helfman, 573 F.3d at 396
(“While none of the factors alone is dispositive, we find that as a whole, they support a finding
that [the defendant] did not engage in a deliberate and principled reasoning process.”). No factor
alone justifies a finding that Unum’s decision was arbitrary and capricious; however, taken
together, they show that Unum’s reasoning process was not deliberate and principled. Clark’s
motion will therefore be granted.
Clark asks the court to order that her claim for ongoing benefits be approved or, in the
alternative, to remand the case to Unum for further proceedings consistent with the Plan. As the
Sixth Circuit has held, “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,’ the
appropriate remedy generally is remand to the plan administrator.” Elliott, 473 F.3d at 622
(quoting Buffonge v. Prudential Ins. Co. of America, 426 F.3d 20, 31 (1st Cir. 2005)). Although
31
Clark has identified flaws in Unum’s decision, she has not gone so far as to establish that she is
clearly entitled to ongoing benefits. Because the discretion to administer the Plan is ultimately
still Unum’s to exercise, the court will remand the case for further proceedings.
CONCLUSION
For the reasons set forth herein, Clark’s motion is hereby GRANTED and Unum’s motion
is hereby DENIED.
A separate Order will issue.
ENTER this 10th day of October 2018.
ALETA A. TRAUGER
United States District Judge
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