United States District Court, W.D. Virginia, Lynchburg Division
Laurel Anne Moore, Plaintiff: William Anthony Parks, Jr.,
LEAD ATTORNEY, COVINGTON, VA.
Liberty Life Assurance Company of Boston, Defendant: Edwin
Ford Stephens, LEAD ATTORNEY, CHRISTIAN AND BARTON, RICHMOND,
K. MOON, UNITED STATES DISTRICT JUDGE.
action, removed here pursuant to the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § §
1001-1461 (" ERISA" ), is before me upon
consideration of the parties' cross-motions for summary
judgment, which have been briefed and argued. My review of
the record discloses that Plaintiff, formerly a sales
associate for Lowe's Home Improvement, received short
term disability (" STD" ) and
long term disability (" LTD" ) payments for two
years because she was unable to perform the duties of her
" own occupation." However, the Group Disability
Income Policy (the " Policy" ) provides that, at
the end of 24 months, LTD coverage is no longer available if
the claimant is capable of " any occupation," and
Defendant then determined that, because Plaintiff was capable
of performing a sedentary occupation that does not involve
driving, she was no longer entitled to LTD benefits. As
explained more fully herein, Defendant's determination is
supported by substantial evidence and reflects an appropriate
exercise of its discretion as the administrator of the plan.
Accordingly, I will deny Plaintiff's motion for summary
judgment and grant Defendant's motion for summary
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment " if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." " As
to materiality . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to preclude
summary judgment, the dispute about a material fact must be
" 'genuine,' that is, if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Id.; see also JKC Holding
Co. v. Washington Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001). However, if the evidence of a genuine
issue of material fact " is merely colorable or is not
significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving
party. See, e.g., Celotex Corp. v. Catrett,
477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
faced with cross-motions for summary judgment, the standard
is the same. The court must consider " each motion
separately on its own merits to determine whether either of
the parties deserves judgment as a matter of law."
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003) (quotations omitted). If the court finds that there is
a genuine issue of material fact, both motions must be
denied, " [b]ut if there is no genuine issue and one or
the other party is entitled to prevail as a matter of law,
the court will render judgment." Trigo v. Travelers
Commercial Ins. Co., 755 F.Supp.2d 749, 752 (W.D. Va.
2010). The mere existence of " some "
factual disputes will not defeat summary judgment; the
dispute must be " genuine" and concern "
material" facts. Anderson, 477 U.S. at 247-248;
see also Emmett v. Johnson, 532 F.3d 291,
297 (4th Cir. 2008). Only legitimate disputes over facts that
might affect the outcome of the suit under the governing law
fall within that category. Id.; see also Fields
v. Verizon Servs. Corp., 493 Fed. App'x 371, 374
(4th Cir. 2012).
Life Assurance Company of Boston (" Defendant," or
" Liberty" ) issued
the Policy to Lowe's Companies, Inc. ("
Lowe's" ). L001. LTD benefits are payable under the
Policy " [w]hen Liberty receives Proof that a Covered
Person is Disabled due to Injury or Sickness and requires the
Regular Attendance of a Physician . . . ." L022. "
The benefit will be payed for the period of Disability if the
Covered Person gives to Liberty Proof of continued: 1.
Disability; 2. Regular Attendance of a Physician; and 3.
Appropriate Available Treatment." Id. "
The Proof must be given upon Liberty's request and at the
Covered Person's expense," id., and "
Liberty reserves the right to determine if the Covered
Person's Proof . . . is satisfactory," L043.
Policy includes pertinent definitions. For example, it states
Disability" or " Disabled" , with respect to
Long Term Disability, means:
i. if the Covered Person is eligible for the 24 Month Own
Occupation benefit, " Disability" or "
Disabled" means during the Elimination Period and the
next 24 months of Disability the Covered Person, as a result
of Injury or Sickness, is unable to perform the Material and
Substantial Duties of his Own Occupation; and
ii. thereafter, the Covered Person is unable to perform, with
reasonable continuity, the Material and Substantial Duties of
L007. The Policy defines " 'Material and Substantial
Duties', with respect to Long Term Disability," as
" responsibilities that are normally required to perform
the Covered Person's Own Occupation, or any other
Occupation, and cannot be reasonably eliminated or
modified." L009. " 'Any Occupation' means
" any occupation that the Covered Person is or becomes
reasonably fitted by training, education, experience, age,
physical or mental capacity." L006. " 'Covered
Person' means an Employee
insured under this Policy." L007. "
'Employee' means a person in Active Employment with
Policy's termination provisions states that " [a]
Covered Person will cease to be insured on the earliest"
of a list of dates, including " the date the Covered
Person is no longer in an eligible class" and " the
date employment terminates." L039.
Policy provides that part of Defendant's calculation
" [t]o figure the amount of" the LTD monthly
benefit will " [d]educt Other Income Benefits and Other
Income Earnings" that it estimates are payable to a
Covered Person. L022. Other Income Benefits include "
[t]he amount of Disability and/or Retirement Benefits under
the United States Social Security Act[.] L029. Under some
circumstances, benefits will not be reduced, including "
if the Covered Person . . . provides proof of application for
Other Income Benefits" and, " if applicable,
provides satisfactory proof that all appeals for Other Income
Benefits have been made on a timely basis . . . ." L031.
Policy provides the following grant of discretionary
authority to Defendant: " Liberty shall possess the
authority, in its sole discretion, to construe the terms of
this policy and to determine benefit eligibility hereunder.
Liberty's decisions regarding construction of the terms
of this policy and benefit eligibility shall be conclusive
and binding." L042.
worked as a Sales Specialist for Lowe's. In 2011, she
submitted a claim for STD benefits based on severe back pain
and digestion problems. L055; L1193-L1196. In response,
Defendant requested and obtained certain records from her
treating physician. L1177-L1150; L1183-L1186. On or about
October 21, 2011, Defendant made an initial determination
that Plaintiff was not eligible for STD benefits. L053;
December of 2011, Plaintiff had applied for Social Security
disability benefits (" SSDB" ). L082. That same
month, Plaintiff, through a lawyer, requested that Defendant
review its decision to terminate STD benefits, and she
provided additional medical records. L051-L052; L990-L1142.
By letter dated February 2, 2012, Defendant reversed its
decision and awarded Plaintiff STD benefits through the
maximum allowed time period. L048; L990. On February 6, 2012,
Plaintiff was discharged from physical therapy, which had
begun on December 1, 2011. L802-L809.
February 7, 2012, Defendant notified Plaintiff that it would
review her claim for consideration under Lowe's LTD
coverage, and informed Plaintiff that the provisions and
requirements in that coverage differed from those in the STD
coverage. L981-L982. Defendant requested that Plaintiff
complete various forms, including an Activities
Questionnaire, a Claimant Supplementary Statement, a Claimant
Information form, an Authorization to Release Information,
and a Training Education and Experience form. Id.
February 17, 2012, Defendant informed Plaintiff that she was
eligible to receive LTD benefits under the " own
occupation" definition of disability. L966. Defendant
further informed Plaintiff that, should her " disability
be expected to extend for twelve months," the Policy
required her to apply for SSDB. L968.
completed and returned to Defendant the Activities
Questionnaire, the Claimant Supplementary Statement, the
Claimant Information form, the Authorization to Release
Information, and the Training Education and Experience form.
L954-L965. She identified her treating
doctors, who included Dr. Laura Kornegay, an internal
medicine specialist. L956-L957. In March of 2012, Defendant
received medical records and information from Dr. Kornegay.
April of 2012, Defendant sought an Independent Peer Review.
L873-874. Michael Y. Chang, O.D., conducted the review.
L862-L868. Dr. Chang is an osteopathic physician, board
certified in physical medicine and rehabilitation, and also
board certified in pain medicine. Id. Dr. Chang
contacted Dr. Kornegay, and in his report of April 19,
2012, Dr. Chang concluded that Plaintiff had
a sacroiliac joint dysfunction that would cause her to have
some work restrictions at all times, such as being restricted
from lifting greater than 10 pounds. L864. Dr. Kornegay
agreed with this work restriction. L859-L860. Plaintiff's
Sales Specialist position at Lowe's required that she
lift or move up to 200 lbs, and Defendant continued to
provide Plaintiff with LTD benefits. L1193.
April 18, 2012, Lowe's had terminated Plaintiff's
and September of 2012, Defendant issued multiple requests for
medical records from doctors Plaintiff had identified as
having provided treatment and diagnoses to her. L810-L857. On
July 26, 2012, Plaintiff informed Defendant that her
application for SSDB had been denied, but that she was
seeking a reconsideration of her claim. L080. She was
enrolled as an online student at Colorado Technical
University, L775-L778, " trying to get [a]
bachelor[']s degree in criminal justice so that she
[could become] a counselor and advocate to victims of
abuse," L080 (capitalization omitted). She was working
on seven or eight classes, and her academic activities
occupied " prob[ably] 15-20 hours a week."
Id. (capitalization omitted).
September 2012, Defendant continued to seek medical records
from Plaintiff's treating physicians. L737-L774. Dr.
Carmouche, an orthopedic and spine doctor, submitted a
Restrictions Form, in which he deferred to another doctor.
L736. Later, Dr. Carmouche submitted another Restrictions
Form, dated December of 2012, in which he noted that
Plaintiff suffered from back pain, but he did not list any
restrictions or limitations. L676. From December of 2012
through January of 2013, Defendant requested and received
various medical records relating to Plaintiff. See
generally L518-L662. In June 2013, Plaintiff's pain
management providers declined to provide Defendant with any
restrictions or limitations for Plaintiff. L517.
letter dated June 26, 2013, Defendant informed Plaintiff
that, to remain eligible for benefits beyond 24 months, she
must be disabled from " any occupation." L472.
Because her LTD benefits had begun on December 7, 2011, the
change in the applicable definition from " own
occupation" to " any occupation" would occur
on December 6, 2013. Id. As a result, Defendant was
gathering information to assess her continued eligibility for
benefits beyond that date, including contacting her treating
physicians. Id. Defendant informed Plaintiff that,
if she had changed physicians or had been treated by other
physicians in the previous twelve months, she needed to
provide the full names and mailing addresses of any such
provider. Id. Plaintiff was also asked to complete
and return an Activities Questionnaire, a Claimant
Information Form, and a Claimant
Supplementary Statement, which she did. L463-L472.
identified the following doctors: Dr. Kornegay; Dr. Raju, who
she identified as a pain management specialist; Dr. Ung, also
identified as a pain management specialist; Dr. Peery,
identified as a spine specialist; and Dr. Joiner, another
pain management doctor. L468-L469. She stated further that
she had an appointment with a cardiologist, Dr. Todd.
requested that Dr. Ung, Dr. Raju, Dr. Perry, Dr. Carmouche,
and Dennis Duncan (a physician assistant, or " PA"
) provide updated medical information, L450-L453, and it
received medical records from Dr. Ung, Dr. Teja Raju, and the
PA, Mr. Duncan. L412-L421. Dr. Perry sent in a Restrictions
Form dated July 17, 2013, in which he indicated that he had
not treated Plaintiff since September of 2012, and that he
had imposed no restrictions. L342.
also requested that Dr. Kornegay and Dr. Todd complete
Restrictions Forms and provide updated medical records. L458;
L440; L423-L424. Dr. Todd provided copies of medical records,
L397-L410, and sent in a Restrictions Form dated July 10,
2013, noting that Plaintiff was capable of sedentary work,
but should not drive or stand on ladders, L411.
Kornegay provided copies of medical records, L354-L395, most
recently dated June 28, 2013. The appointment that day was
set up to perform paperwork for her disability application,
but Plaintiff " had multiple other issues of
concern." L367. For example, Plaintiff complained about
loss of consciousness, but " adamantly declines any
evaluation in the emergency room or any hospitalization to
further sort things out." Id. Plaintiff also
said that she heard voices, but knew that they were not real.
L368. Dr. Kornegay assessed that Plaintiff had "
[q]uestionable auditory hallucinations," and added that
she was " [r]eally not know sure at all what to make of
this symptom." Id. Dr. Kornegay diagnosed
" [d]isability secondary to chronic low back
issues," stating further that " [t]hese seem
essentially unchanged" and that she would " reflect
no change in status on [Plaintiff's] disability
forms." Id. Dr. Kornegay's medical records
were accompanied by a Restrictions Form dated June 28, 2013,
upon which Dr. Kornegay reported that Plaintiff had low back
pain and was capable of sedentary work. L353.
conversations with Defendant's agents in August and
September of 2013, Plaintiff stated that she had been
diagnosed with Chiari Malformation, Type 1. L063. She stated
that an MRI had revealed this condition, which she described
as " a rare and serious neurological disorder where part
of the lower . . . brain herniates into [the] neck
area."  Id. (capitalization omitted).
Plaintiff stated that she was planning to see either Dr.
Edward Oldfield, a professor of neurology and internal
medicine at the University of Virginia (" U.Va." ),
or a Dr. Henderson in Maryland. L063-L064. She later reported
having appointments with Dr. Oldfield and Dr. Campa at U.Va.
L063. Plaintiff also said that her Social Security claim had
been denied, but she planned to appeal with the new
information about Chiari. Id.
October 3, 2013, Defendant asked Dr. Kornegay for records
since July 7, 2013. L244. It also requested recent records
and completed Restrictions Forms from Drs. Campa and
Oldfield. L238; L232. Dr. Kornegay provided a copy of an
August 16, 2013, MRI report from the Carillion Clinic in
Lexington, Virginia, stating " [t]here are criteria for
Chiari I malformation fulfilled because of projection of the
tonsils just below the foramen magnum," which "
crowds the [cerebrospinal fluid] space but does not eliminate
it or cause compression or occlusion of the vertebral
arteries passing across it at the ventral aspect of the
brainstem." The report added that " [t]here is
visible anterior [cerebrospinal fluid] space anterior to the
brainstem," that all other aspects of the MRI were
likewise normal, and concluded with the following "
IMPRESSION" : " CHIARI I MALFORMATION WITHOUT
EVIDENCE OF ASSOCIATED VASCULAR OBSTRUCTION OR OTHER
SIGNIFICANT FINDING." L226. An October 2, 2013 report
from Dr. Oldfield at U.Va. stated, in pertinent part, the
she has a very long list of symptoms. . . . Most
of her symptoms do not have a potential relationship with a
Chiari I malformation. She had a previous MRI scan that
suggested the potential diagnosis of a Chiari I malformation
with the cerebellar tonsils slightly below the level of the
foramen magnum. Because of that report she was referred to
clarify whether or not she has a Chiari I malformation.
She has inconsistent neurological findings on her
neurological examination which are probably explained by
fluctuations in effort.
Her MRI scan of the cervical spine show that the cerebellar
tonsils have a normal rounded shape. The bottom margin of
them is only 1 - 2 mm below the bottom edge of the foramen
magnum. Further, there is a layer of cerebrospinal fluid that
can be clearly seen behind the cerebellar tonsils between the
posterior margin of the tonsils and the inner layer of dura.
Finally, cine MRI scanning demonstrates normal pulsatile
movement of the cerebrospinal fluid across the foramen magnum
ventrally and dorsally. The findings of the scan are
relatively clear. It does not demonstrate a
Chiari I malformation.
L194 (emphasis added).
phone call on October 9, 2013, Plaintiff admitted to one of
Defendant's agents that Dr. Oldfield told her that she
does not have Chiari malformation, and that none of her
symptoms were neurological, " even though she gave him
[three] pages of [symptoms] and she [had] done a lot of
research on" the subject. L062 (capitalization omitted).
Plaintiff stated that she was filing a complaint against Dr.
Oldfield, and the agent noted that " she didnt [
sic ] want me to get [Dr. Oldfield's]
reports." Id (capitalization omitted).
missed her appointment with Dr. Campa, arriving too late to
be seen. Id. Neither Dr. Campa nor Dr. Oldfield
submitted a Restrictions Form. L205-L210. Dr. Kornegay,
however, sent in another Restrictions Form dated October 17,
2013, on which she indicated that Plaintiff had low back
pain, syncope (which she indicated was " new" ),
generalized anxiety and an abnormal brain MRI. L192. Dr.
Kornegay indicated that Plaintiff would undergo a "
psychiatry eval," and that Plaintiff was not to drive
pending a neurology evaluation. Id. Although Dr.
Kornegay noted various symptoms, she provided no other
restrictions or limitations and did not opine that Plaintiff
is otherwise unable to work in a sedentary capacity.
on the " sedentary" restrictions and limitations
provided by Dr. Todd and Dr. Kornegay in June and July of
2013, and the " no driving" restriction (the only
restriction) listed on Dr. Kornegay's Restrictions
form dated October 18, 2013, Defendant requested a
Transferrable Skills Analysis. L061; L191. Defendant's
file on Plaintiff, with its updated medical records, stating
specific restrictions and limitations (" R& Ls" ),
was referred to a Vocational Case Manager, Ellen Levine,
M.S., C.R.C., C.C.M.. L191; L187. Ms. Levine reviewed all the
restrictions and limitations on the three most recent
Restrictions Forms, i.e., Dr. Todd's form dated
July 10, 2013, and Dr. Kornegay's forms dated June 28,
2013, and October 17, 2013, as well as other documents,
including Plaintiff's Training, Education and Experience
form. Ms. Levine then identified alternative occupations for
which Plaintiff was qualified, based on her training,
education, and experience, and which were within the physical
capacities for work outlined in the Restrictions
letter dated November 12, 2013, Defendant informed Plaintiff
that she was not disabled under the " any
occupation" definition of disabled in the Policy.
L182-L186. Defendant's review of her claim was based on
her current restrictions and limitations based on her
diagnosis of low back pain, syncope, anxiety, and Chiari
malformation. L182. Defendant noted the Restrictions Forms
from Dr. Kornegay and Dr. Todd from June and July of 2013,
respectively, stating that Plaintiff had sedentary capacity,
and that both Dr. Todd and Dr. Kornegay, the latter in an
October 18, 2013 Restrictions From, had included a
restriction against driving. L184. Defendant pointed out that
" the only treating providers restricting [Plaintiff]
were [her] primary care physician, Dr. Kornegay and [her]
cardiologist, Dr. Todd, with sedentary capacity, no driving
or standing on ladders." Id.
explained the results of the Transferrable Skills Analysis.
L184-L185. Based on its medical and vocational reviews,
Defendant had determined that Plaintiff could perform, with
reasonable continuity, the material and substantial duties of
the occupations listed in the Transferrable Skills Analysis
based on her capacity and skill level. L185. Thus, she did
not meet the Policy's definition of disability beyond
December 6, 2013, and Defendant denied her claim for further
benefit consideration. Id. Benefits were paid
through December 6, 2013. Id. Plaintiff was informed
of her appeal rights, including that she could submit a
" written request for review . . . within 180 days of
the receipt of this letter," ...