Allen v. UNUM Life Insurance Company of America et al
Filing
64
OPINION. Signed by District Judge John A. Gibney, Jr. on 9/1/2016. (sbea, )
IN THE UNITED ST ATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MARYE. ALLEN,
Plaintiff,
v.
Civil Action No. 3:15-cv-219-JAG
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant.
OPINION
Mary Allen appeals the denial of long-term disability benefits by Unum Life Insurance
Company of America ("Unum"), the plan administrator for her employee benefit plan (the
"Plan").
Under the Plan, Unum decides whether applicants meet the Plan's definition of
disability. Unum found that Allen could work, and therefore denied her request for benefits.
Today, the Court need not decide whether Allen can in fact work; rather, the Court need only
decide whether Unum abused its discretion in deciding that she could. Because Unum did not
abuse its discretion, the Court grants summary judgment to Unum.
I. BACKGROUND 1
Allen's employer, CVS Pharmacy ("CVS"), provided long-term disability insurance for
its workers. The Plan contains two different definitions of long-term disability. For the first
1
In ERIS A denial of benefits cases, courts typically review the plan administrator's decision
based only on the administrative record, as the administrative record contains only the
documents before the plan administrator at the time of the denial decision. See Williams v.
Metro. Life Ins. Co., 609 F.3d 622, 631 (4th Cir. 2010). To her reply in support of her motion for
summary judgment, Allen attached a declaration that addressed perceived discrepancies in
Unum's January 9, 2015 letter. Unum moved to strike this declaration as outside the
administrative record. While the Court tends to agree with Unum, because the additional
information in Allen's declaration does not affect the outcome of this case, the Court will deny
the motion to strike.
twenty-four months, an employee qualifies as disabled if "[she is] limited from performing the
material and substantial duties of [her] regular occupation due to [her] sickness or injury."
(UA-POL-LTD-000019 (emphasis in original).)
In contrast, after twenty-four months, the
employee is disabled if she is "unable to perform the duties of any gainful occupation for which
[she is] reasonably fitted by education, training or experience." (Id (emphasis in original).) In
other words, for the first two years of benefits, an employee is "disabled" if she cannot perform
her regular job.
After two years, an employee is disabled only if she cannot perform any
occupation. Unum has "sole discretionary authority to construe the terms of the Plan and all
facts surrounding claims" and to make benefits determinations. (Id. at -000042, -00004 7.)
A. Allen's Medical, Work, and Benefits History
CVS employs Allen as a pharmacy technician. Her job includes assisting pharmacy
customers, processing prescriptions, performing register transactions, communicating with
healthcare providers, inputting data into the computer, and managing inventory. The physical
activities required include "repetitive wrist-twisting motions of opening and closing prescription
and stock bottles, typing, typing while talking on the phone (cradling the phone between the
shoulder and neck), reaching above the head to remove bottles from shelves, and standing for
extended periods of time without sitting." (UA-CL-STD(102257960)-000143.) Unum classified
this occupation as requiring a light level of physical exertion.
In March 20 I 0, Allen suffered multiple injuries in a car accident, including neck, back,
arm, and leg injuries, primarily on the left side of her body. After the accident, Unum paid Allen
short-term disability benefits through August 2010.
During this time, Allen visited several
doctors and tried various avenues for pain management, including physical therapy and
chiropractic care. In July 2010, she returned to working half shifts for ten to fifteen hours per
2
week, with a limitation from performing "anything in [her] job description that could exacerbate
or potentially reinjure [her]." (Id. at -000242.) In September 2010, Allen returned to work fulltime with the same limitation against doing anything that could exacerbate her injuries.
While working full-time, Allen continued visiting various doctors and showed some
improvement, but her pain persisted. In February 2012, Allen underwent spinal surgery, which
fused two vertebrae in her neck. After the surgery, Unum paid short-term disability benefits
through July 2012. While the surgery seemed to improve the pain in Allen's neck and arm, the
pain in Allen's back and leg persisted. Allen and her physicians continued exploring techniques
to manage the pain, including epidural injections and aquatic therapy, in addition to chiropractic
care.
In June 2012, Allen returned to work part-time with the following physical restrictions
and limitations: no lifting of 10 lbs. above the waist; no cradling phone; no twisting or bending;
no staying in one position for greater than one hour; and no work greater than four hours, three
times per week. (UA-CL-LTD(103033506)-000504.) CVS accommodated Allen's restrictions
by providing assistance pulling the drive-through window open and opening certain bottles, (id.
at -000862), but would not provide a rubber mat to alleviate pain caused by the concrete floors,
(id. at -001393). At times during her part-time work shifts, Allen would have to take breaks for
up to an hour to ease muscle spasms. (Id. at -001858.)
After using up her short-term benefits, Allen applied for long-term disability benefits.
Unum approved these benefits under the "regular occupation" standard, beginning July 2012.
Allen continued to work part-time, but still experienced pain and, at some point, began having
headaches. Allen reported to her physician that the headaches occur "after 1-2 hours of walking
on concrete in the pharmacy. They will also occur if she is at work and has to sit for 1 1/2 hours
3
consecutively.
She has observed that while sitting, if she can change position every 30-45
minutes she can prevent the headaches." (UA-CL-LTD(l03033506)-000975.) While working
part-time, Allen continued to see various doctors, and Unum intermittently evaluated her claim
for benefits.
B. "Any Gain/u/ Occupation" Claim Review
In March 2014, Unum notified Allen that it would evaluate her claim for continuing longterm disability benefits under the "any gainful occupation" standard beginning July 2014. As
part of its review, Unum contacted Allen's physicians for their opinions on Allen's capacity to
work full-time in a sedentary occupation. Allen's primary care physician, her chiropractor, and
her neurologist all agreed that Allen could not work full-time in a sedentary occupation. Unum
retained an internist and a neurologist to review Allen's medical records and other documents in
the claim file. Both agreed that Allen could perform a mostly sedentary occupation on a fulltime basis.
In August 2014, Unum discontinued Allen's benefits. To justify its decision, Unum
cited Allen's improvements with headache patterns, Unum's physicians' reviews of Allen's
medical records, and Allen's ability to work part-time at CVS.
Allen appealed the termination decision. In her appeal, she provided additional medical
records and a statement from a co-worker. In October 2014, Unum outlined certain issues to
address on appeal, primarily, "whether the evidence supports sustained [full-time] capacity to
perform the alternative sedentary occupations." (Id at -001843). Unum's report said that "[t]his
appears to be a chronic pain claim . . . [and] while [reported pain] may be in excess of
exam/diagnostic findings, [it] must be considered." (Id.) Unum's note concludes: "Specifically,
4
2
we need to address whether there is evidence and/or inconsistencies in the file that refutes the
severe symptoms and the restriction to part time work capacity." (Id) Unum then had another
physician-a neurosurgeon-review Allen's medical records and other documents in the claim
file. He concluded that Allen could sustain a full-time sedentary occupation.
On December 11, 2014, Unum denied Allen's appeal. The denial letter recounted the
initial decision, as well as the review by and conclusion of its neurosurgeon during the appeal.
The letter also listed information "inconsistent with the severe symptoms and the degree of
physical difficulties and/or limitations that [Allen] describes."
(Id at -001919.)
This list
included: (1) that the "restrictions and limitations provided appear to rely solely on what [Allen]
tells her providers about her symptoms and physical difficulties," but "the degree of difficulties
and/or limitations ... report[ ed] are not explained by and is in excess with the available exams
and diagnostic findings;" (2) that Allen reported falls, but did not seek treatment for them; (3)
that Allen ''is consistently observed to be in no acute distress during physical exams;" (4) that
Allen does not use a cane or other assistance device, despite reporting falls; (5) that Allen
continues to drive; (6) that Allen continues to work part-time at a light level of exertion; and (7)
that Allen performs light household chores, including walking her dog. The letter also noted
Allen's right to sue under ERISA.
In late December, Allen asked Unum to reopen her appeal, providing additional medical
records from another doctor who completed a neuropsychological evaluation. Not surprisingly,
Allen's physician endorsed her disability status.
2
Unum then had another physician review
Unum's documents contain many instances of using singular verb forms with plural subjects.
E.g. "evidence and/or inconsistencies . . . refutes. . . ." This may be something required by
ERISA regulations. Given Unum's frequent use of the term "and/or," it may even be
grammatically correct. Accordingly, the Court will not change Unum's less than euphonious
idiolect.
5
Allen's medical records and claim file from a psychological perspective.
Not surprisingly,
Unum's doctor did not support disability. On January 9, 2015, Unum notified Allen that the
newly submitted documents "do[] not change [its] prior appeal decision." (Id at -001969.) This
letter noted that Unum' s "December 11, 2014 letter explained the basis for [its] determination
that [Allen] is capable of performing the duties of alternative gainful, sedentary occupations."
(Id)
In addition, Unum listed more "information and inconsistencies [that] support [its]
determination."
(Id at -001970.)
This list generally honed in on inconsistencies between
Allen's reports to her physicians and her actions. For example, Unum compared Allen's reports
of pain with her actions of driving and completing household chores. Notably, this list said that
Allen's Facebook profile revealed plans of going on a cruise. 3 Unum's January 9, 2015 letter
concluded, "the additional information does not change [Unum's] prior decision. This letter, and
[the] December 11, 2014 letter, serves as [Unum's] collective and final determination." (Id. at 001975.)
C. Pending Litigation
Allen has now asked the Court to overturn Unum's decision or, in the alternative, to
remand to Unum for a full and fair review of her benefits claim. The parties have filed crossmotions for summary judgment. In her reply in support of her motion for summary judgment,
Allen attached a declaration that offered additional facts in response to Unum's January 9, 2015
letter. Many of the additional facts amount to squabbles over word choices (e.g., whether Allen
told Unum that she had a dog or a therapy dog), but, as Unum admits, show that Unum had
found and referred to the Facebook profile of a different Mary Allen in the January 9, 2015
letter.
3
This attempt to gild the.lily blew up in Unum's face and shows the perils of relying on anything
on social media. The woman getting ready for the cruise was a different Mary Allen.
6
II. STANDARD OF REVIEW-t
ERISA allows a plan participant to challenge a plan admini strator' s decision to deny
benefits in federal court. 29 U.S .C. § l 132(a)( l)(B); see Metro. Life Ins. Co. v. Glenn, 554 U.S.
I 05, I 08 (2008). Reviewing courts apply an abuse of discretion standard when the ERISA plan
at issue vests the plan administrator with the discretionary authority to make el igibility
determinatio ns. 5 Williams v. Metro. Life Ins. Co., 609 F.3d 622 , 629-30 (4th Cir. 20 10). Under
this standard, courts sho uld " not disturb a plan administrator's deci sion if the deci sion [was]
reasonable, even if [the court] \vould have come to a contrary conclusion independently." Id. at
630.
"To be he ld reasonable, the administrator's decision must result from a ' deliberate,
principled reasoning process' and be supported by substantial evidence. " Id. (citations omitted).
Courts should consider a list of eight non-exclusive factors in reviewing the
administrator's decisions under ERISA:
(I) the language of the plan;
(2) the purposes and goals of the plan;
(3) the adequacy of the materi als considered to make the decision
and the degree to w hich they support it;
(4) w hether the fiduciary's interpretation was consistent with other
provisions in the plan and with earlier interpretations of the plan;
(5) whether the decisionmaking process was reasoned and
principled;
(6) w hether the decision was consistent w ith the procedural and
substantive requirements of ERISA ;
(7) any external standard relevant to the exercise of discretion; and
(8) the fiduc iary 's moti ves and any conflict o f interest it may have.
4
This case is currently before the Court on cross motions for summary judgment. In ERISA
cases chall enging denial of benefits decisions, however, "summary judgment is merely the
conduit to bring the legal question before the distri ct court and the usual tests of summary
judgment do not apply ." Keith v. Fed. Express Corp. Long Term Disabihty Plan, No.
7 :09cv00389, 2010 WL 1524373, at *4 n.4 (W.D . Va. Apr. 15, 20 10) (citation, internal
alterations, and quotati on marks om itted) .
5
The parties do not dispute that the abuse of discretion standard app lies in this case.
7
Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342--43 (4th Cir.
2000); see also Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, (4th Cir. 2008)
("[C]ourts are to apply simply the abuse-of-discretion standard for reviewing discretionary
determinations by that administrator, even if the administrator operated under a conflict of
interest.").
III. DISCUSSION
Unum came to a reasonable decision after a principled decision-making process. Unum
received the opinions of Allen's treating physicians, had two physicians render opinions after
reviewing Allen's full medical records, and evaluated other information gleaned from its
interactions with Allen. Based on this information, Unum denied Allen benefits because it found
that she could perform a full-time sedentary occupation. Unum then denied both of Allen's
appeals after reviewing the new evidence submitted and after two more consulting physicians
agreed that Allen could perform a full-time sedentary occupation. While Unum made some
mistakes with its denial of Allen's second appeal-namely, the Facebook profile mix-up-these
mistakes do not negate the full and fair review Allen received before the second appeal, see infra
Part III.B, and, in any event, are harmless. Accordingly, although the Court may have reached a
contrary conclusion independently, Unum did not abuse its discretion in denying Allen's claim
for long-term disability benefits.
A. Allen's Arguments for Abuse of Discretion Do Not Persuade tlie Court
Allen makes three main arguments: (1) Unum had a conflict of interest that tainted the
decision; (2) Unum wrongly relied on its consulting physicians over Allen's treating physicians;
and (3) Unum wrongly relied on the idea that the ability to work part-time at a light level of
exertion suggested the ability to work full-time in a sedentary capacity.
8
The alleged conflict of interest arises because Unum not only administers claims under
the Plan, but pays them as well. Allen argues that this conflict of interest "shaped its conduct, as
... it treated Allen as an adversary, not a neutral claimant." 6 (Pl.'s Mem. Supp. Mot. Summ. J.
30.) A conflict, however, is "but one factor among the many identified in Booth" to determine
whether a plan administrator acted reasonably. Williams, 609 F.3d at 631. Nothing in the record
suggests inherent bias based on Unum's conflict of interest; after all, Unum paid Allen the
maximum amount of short-term disability and paid long-term disability benefits for two years.
See, e.g., id at 632 ("The district court correctly concluded that [the plan administrator]'s initial
finding of disability, its payment of long-term disability benefits for almost two years, and its
referral of its termination decision to two independent physicians, suggests that [the plan
administrator] was not inherently biased in making its decision.").
Allen chastises Unum
because it "reversed course" in denying Allen benefits, "even though nothing about Allen's
medical condition had changed." (Pl.'s Mem. Supp. Mot. Summ. J. 1 (emphasis omitted).)
Allen misses the point, however, because while Allen's medical condition may not have
changed, the definition of disability under the Plan did change. The application of a more
demanding standard, as required by the Plan, simply does not amount to a conflict creating an
abuse of discretion.
Allen also argues that Unum abused its discretion in relying on the opinions of its
consulting physicians-who all thought she could work full-time in a sedentary capacity-over
6
To support this argument, Allen also cites a notation in the claim file where Unum reviewed
issues to address during Allen's appeal-dubbed by Allen the "Roundtable Review." Allen
seems to take this notation out of context, construing the notation as pre-determination and
"marching orders" to deny Allen's claim. Read naturally, Unum noted its need to review Allen's
credibility because her claim relied so heavily on subjective evidence. Based on the nature of
Allen's claim, this review does not raise the specter of inherent bias amounting to an abuse of
discretion.
9
Allen's treating physicians-who all disagreed. Neither the Plan nor ERISA prohibits plan
administrators from seeking medical opinions from consulting physicians based on a review of
the claimant's medical file. 7 See, e.g., Spry v. Eaton Corp. Long Term Disability Plan, 326 F.
App'x 674, 679 (4th Cir. 2009). Indeed, as the Supreme Court noted, plan administrators need
not automatically give special weight to treating physicians:
Plan administrators, of course, may not arbitrarily refuse to credit a
claimant's reliable evidence, including the opinions of a treating
physician. But, we hold, courts have no warrant to require
administrators automatically to accord special weight to the
opinions of a claimant's physician; nor may courts impose on plan
administrators a discrete burden of explanation when they credit
reliable evidence that conflicts with a treating physician's
evaluation.
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). Accordingly, Unum did not
abuse its discretion in relying on the opinion of its consulting physicians over Allen's treating
physicians.
Allen next criticizes Unum's conclusion that the ability to work part-time at a light level
of exertion equates to the ability to do sedentary work full-time, arguing "that this kind of logic
is false equivalence." (Pl. 's Opp'n to Def. 's Mot. Summ. J. 23.) In support of this argument,
Allen cites a case which "noted that the ability to do sedentary work for short periods of time
does not establish the ability to perform full-time, consistent work." Cherry v. Digital Equip.
Corp., No. CIVSOS-2165 WBS JFM, 2006 WL 2594465, at *8 (E.D. Cal. Sept. 11, 2006).
While the Court agrees with Allen to the extent that sedentary work does not necessarily beget
7
Courts have disregarded the opinions of consulting physicians where that physician did not
review the claimant's medical records or where the opinion plainly conflicted with the medical
records. See, e.g., Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 250 (5th Cir. 2007). Here,
however, Allen does not dispute what information Unum's consulting physicians reviewed, only
what the information meant. (See, e.g., Pl.'s Opp'n to Def.'s Mot. Summ. J. 18-19 ("Dr.
Stembergh's report improperly analyzed the objective medical studies .... ").)
10
more sedentary work, light-level-exertion work and sedentary work differ.
While CVS did
accommodate Allen to an extent, the record reflects that she did more than sedentary work
during her shifts. In fact, Allen reported that CVS would not provide a rubber mat to alleviate
the pain associated with standing on a concrete floor. Thus, Unum did not abuse its discretion in
translating Allen's ability to work part-time in her position at CVS into evidence of an ability to
work full-time in a sedentary occupation as a factor in its decision to deny Allen benefits.
Whether viewed individually or collectively, Allen's criticisms of Unum's decision
simply do not establish an abuse of discretion.
B. Tiie Court Need Not Remand for Mistakes Made During Allen's Second Appeal
Alternatively, Allen asserts that, at the very least, the Court should remand the case to
cure Unum's use of the wrong Facebook profile and other mistakes made during Allen's second
appeal in the January 9, 2015 denial letter.
In ERISA denial-of-benefits cases, remand is
appropriate "[i]n cases where there is a procedural ERISA violation ... so that a 'full and fair
review' can be accomplished." Gagliano v. Reliance Standard Life Ins. Co., 547 F .3d 230, 240
(4th Cir. 2008). The procedures required of a plan administrator by ERISA include: (1) adequate
notice "setting forth the specific reasons for such denial, written in a manner calculated to be
understood by the participant," and (2) "a reasonable opportunity ... for a full and fair review by
the appropriate named fiduciary of the decision denying the claim." 29 U.S.C. § 1133; see also
29 C.F.R. § 2560.503-1.
As an initial matter, ERIS A's procedural requirements do not cover second, voluntary
appeals.
See DaCosta v. Prudential Ins. Co. of Am., No. 10-cv-720 (JS)(ARL), 2010 WL
4722393, at *5-6 (E.D.N.Y. Nov. 12, 2010) (noting that ERISA requires only a single review,
that regulations provide no substantive guidelines for conducting voluntary appeals despite
11
covering other aspects of voluntary appeals, and that public policy dictates against imposing the
procedural requirements on voluntary appeals); see also Prezioso v. Prudential Ins. Co. of Am.,
748 F.3d 797, 805 (8th Cir. 2014). This alone counsels against remand in this case, as the only
perceivable procedural violation alleged occurred during Unum's second, voluntary review of
Allen's claim. The mistakes made during the voluntary review do not negate the full and fair
review Allen received during her first appeal.
Even if the Court considers Unum's mistakes during the second, voluntary review, the
mistakes do not rise to the level of a procedural violation justifying remand. Unum's mistakesnamely, relying on the wrong Facebook profile and arguably misconstruing facts from the
record-did not go to the core of Allen's claim, such as in cases where the plan administrator
relied on definitions from the wrong insurance policy, Touhey v. Hartford Life & Accident Ins.
Co., No. 4:10CV1440 JCH, 2012 WL 2568185, at *4 (E.D. Mo. July 3, 2012), or medical
records for the wrong patient, Watson v. UnumProvident Corp., 185 F. Supp. 2d 579 (D. Md.
2002) (granting summary judgment to the plaintiff in lieu of remand based on the unreasonable
and unprincipled deliberative process).
Further, Unum's mistakes did not lead to denial of
Allen's benefits on a new basis. Gagliano, 541 F.3d at 236, 240 (remanding where a plan
administrator denied an appeal for a completely different reason than the initial denial reason,
resulting in a procedural violation for lack of adequate notice); see also Pettaway v. Teachers
Ins. & Annuity Ass 'n of Am., 644 F.3d 427, 436 (D.C. Cir. 2011) ("The results of the additional
tests and reviews did not provide a new basis for terminating [the claimant]' s benefits, but
merely supplemented [the plan administrator's] initial reasoning."). Instead, in its January 9,
2015 letter, Unum confirmed that the December 11, 2014 letter explained the basis for the claim
12
denial, and that the new information did not change the pri o r appeal decision.8 Accordingly,
U num 's mistakes during A ll en's second, vo luntary appeal do not justify remand.
IV. CONCLUSION
For these reasons, the Court GRANTS Unum 's motion for summary judgment and
D ENIES A lle n' s motio n fo r summar y judg ment.
T he Court w ill enter an appropriate order.
Let the C lerk send a copy of thi s Opinion to all counsel of record.
~
Date:
Richmo n
d,VA
Isl
{
John A. Gibney, Jr.
' 20 16
United States Dis ·ct J
8
Indeed, remand likely would not chan ge Unum ' s benefits decision, as it denied A llen's claim
and appeal prio r to its mistakes during the second appeal, and w itho ut delving into A llen's
inconsistent statements.
13
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