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Moore v. Liberty Life Assurance Co. of Boston

United States District Court, W.D. Virginia, Lynchburg Division

September 8, 2015

LAUREL ANNE MOORE, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant

Page 409

          For Laurel Anne Moore, Plaintiff: William Anthony Parks, Jr., LEAD ATTORNEY, COVINGTON, VA.

         For Liberty Life Assurance Company of Boston, Defendant: Edwin Ford Stephens, LEAD ATTORNEY, CHRISTIAN AND BARTON, RICHMOND, VA.

Page 410

          MEMORANDUM OPINION

         NORMAN K. MOON, UNITED STATES DISTRICT JUDGE.

         This 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.[1] My review of the record discloses that Plaintiff, formerly a sales associate for Lowe's Home Improvement, received short term disability (" STD" ) and

Page 411

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 judgment.

         I.

         Federal 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).

         When 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).

         II.[2]

         A.

         Liberty Life Assurance Company of Boston (" Defendant," or " Liberty" ) issued

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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.

         The Policy includes pertinent definitions. For example, it states that

         " 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 Any Occupation.

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

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insured under this Policy." L007. " 'Employee' means a person in Active Employment with [Lowe's]." L008.

         The 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.

         The 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.

         The 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.

         B.

         Plaintiff 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; L1148-L1150.

         By 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.

         On 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.

         On 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.

         Plaintiff 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

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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. L875-L944.

         In 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,[3] 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.

         As of April 18, 2012, Lowe's had terminated Plaintiff's employment. L083.

         In July 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).

         In 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.

         In a 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

Page 415

Supplementary Statement, which she did. L463-L472.

         Plaintiff 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. Id.

         Defendant 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.

         Defendant 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.

         Dr. 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.

         In 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." [4] 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.

         On October 3, 2013, Defendant asked Dr. Kornegay for records since July 7, 2013. L244. It also requested recent records

Page 416

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 following:

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).

         In a 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).

         Plaintiff 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. Id.

         Based 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

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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 Forms.[5] L187-L190.

         By 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.

         Defendant 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," ...


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