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Allen v. Unum Life Insurance Co. of America

United States District Court, E.D. Virginia, Richmond Division

September 1, 2016

MARY E. ALLEN, Plaintiff,


          JOHN A. GIBNEY, JR. United States District Judge.

         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 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, -000047.)

         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 2010, 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 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 full-time 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 11/2 hours consecutively. She has observed that while sitting, if she can change position every 30-45 minutes she can prevent the headaches." (UA-CL-LTD(103033506)-000975.) While working part-time, Allen continued to see various doctors, and Unum intermittently evaluated her claim for benefits.

         B. "Any Gainful Occupation" Claim Review

         In March 2014, Unum notified Allen that it would evaluate her claim for continuing long-term 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 full-time 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, we need to address whether there is evidence and/or inconsistencies in the file that refutes[2] 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. Unum then had another physician review 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. ...

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