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Gilrane v. Unum Life Insurance Company of America

United States District Court, E.D. Tennessee, Chattanooga

September 12, 2017


          Susan K. Lee Magistrate Judge.



         Before the Court is Plaintiff's motion for judgment. (Doc. 22.) For the following reasons, the Court DENIES Plaintiff's motion for judgment as a matter of law (Doc. 22) and will ENTER judgment in favor of Defendants Unum Life Insurance Company of America and Unum Group Corporation.[1]

         I. BACKGROUND

         Plaintiff brought this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., to obtain judicial review of Unum's termination of long-term disability benefits. (Doc. 1.) Plaintiff previously worked as a registered nurse with South Lake Hospital (“South Lake”) in Florida. (Id.) In 2005, Plaintiff began receiving long-term disability benefits under South Lake's welfare benefit plan (the “Plan”)[2] with Unum, due to the effects of chronic inflammatory demyelinating polyneuropathy (“CIDP”), a peripheral nerve disorder which affects sensory function in the limbs and can cause considerable weakness, fatigue, and difficulty manipulating and grasping objects. (Doc. 16-1, at 107-10; Doc. 16-2, at 44-47.) After Plaintiff was diagnosed, she began intravenous immunoglobulin (“IVIG”) treatments, a multiple-day procedure whereby she would receive medication directly into her blood stream. (Doc. 16-2, at 30-31.) Plaintiff was also prescribed Neurontin for her pain. (Id. at 34.) Over the next ten years, Plaintiff was treated mainly by two physicians, Stephen Rosenberg, M.D., a board certified neurologist, and Memory Crowley, D.O., Plaintiff's primary care physician.

         The Plan, a forty-five page document entitled “Summary of Benefits” (Doc. 16-1, at 50- 94), provides that Unum “will provide benefits under this Summary of Benefits” and that “Unum makes this promise subject to all of this Summary of Benefits' provisions” (id. at 50). The “Glossary” defines “Plan” as “a line of coverage under the Summary of Benefits.” (Id. at 90.) Pursuant to the “Benefits at a Glance” section, the Plan “provides financial protection for [employees] by paying a portion of [their] income while [they] are disabled.” (Id. at 52.) The “Certification Section” provides that Unum will make benefit determinations “under the Summary of Benefits.” (Id. at 61.) Additionally, the “Certification Section” provides that “Unum has discretionary authority to determine [employees'] eligibility for benefits and to interpret the terms and provisions of the Summary of Benefits.” (Id.) The section that is specific to ERISA, moreover, provides that:

[T]he Plan Administrator, and any designee (which shall include Unum as a claims fiduciary) will have the broadest discretion permissible under ERISA and any other applicable laws . . . . Benefits under this Plan will be paid only if the Plan Administrator or its designee (including Unum), decides in its discretion that the applicant is entitled to them.

(Id. at 87.)

         Under the terms of the Plan, an employee is considered disabled and eligible for long-term disability benefits if she is unable to “perform[ ] the material and substantial duties of [her] regular occupation due to [a] sickness or injury” and has a 20% loss of income due to that sickness or injury. (Id. at 65 (emphasis omitted).) After Unum pays an employee benefits under the Plan for twenty-four months, [3] that employee is disabled if “due to the same sickness or injury, [she is] unable to perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training or experience.”[4] (Id. (emphasis in original).) Unum specifically reserved the right to conduct a physical examination of an employee claiming a disability under the Plan. (Id.)

         After Plaintiff was initially diagnosed in 2005, she received weekly IVIG treatments. (Doc. 16-2, at 35.) Shortly after her diagnosis, Dr. Rosenberg noted that Plaintiff had sometimes “quite severe” dysesthetic pain, which was treated with Neurontin, and “considerable fatigue and occasional mental fogginess.” (Id. at 29.) Moreover, her “endurance [was] extremely poor and she [had] difficulty with ambulation beyond short periods.” (Id.) Over the next few years, Dr. Rosenberg noted similar symptoms. (See, e.g., Doc. 16-3, at 106.) By 2006, Plaintiff's IVIG treatments were extended to approximately every six weeks. (Doc. 16-2, at 25.) By 2012, and continuing into 2013, Plaintiff had responded so well to the treatments that she was receiving IVIG treatments every four to six months. (Doc. 16-4, at 93, 95, 96, 98.) In September 2013, Dr. Rosenberg noted that, two-and-a-half months past her last IVIG treatment, Plaintiff “[was] doing extremely well” and “still functioning virtually normally.” (Id. at 93.) Her “[m]otor testing . . . show[ed] normal tone and power” and Dr. Rosenberg could not “even detect minimal dorsiflexion weakness.” (Id. at 93.) On January 27 and 28, 2014, Plaintiff received an IVIG treatment. (Doc. 16-7, at 25-30.) On April 3, 2014, “just under 2 months from [Plaintiff's] last IVIG infusion, ”[5] Dr. Rosenberg reported that she felt “great.” (Doc. 16-4, at 163.) Again, her “[m]otor testing show[ed] normal tone and power throughout, specifically including distal groups, ” and Plaintiff was even “remain[ing] active and . . . working in the garden outside.” (Id.) He noted that Plaintiff was taking Gabapentin on an as-needed basis for pain, which would “significantly increase[ ]” the closer she got to her next IVIG treatment. (Id.)

         On August 26, 2014, Unum Extended Duration Unit employee Stephanie Morin contacted Plaintiff via telephone to conduct an annual routine status check. (Id. at 131-32.) Plaintiff advised Morin that she was still experiencing pain and neuropathy and that “some days [were] better than others.” (Id. at 131.) Plaintiff explained that she still “[couldn't] do anything strenuous” and that “[e]nergy conservation” was a concern, but she required less Neurontin for pain. (Id.) She was doing some household chores, which was a “big improvement, ” and commented that “[t]his is the best that [she] had ever felt.” (Id. at 132.) However, Plaintiff noted “[e]ndurance and strength” as her biggest barriers for returning to work. (Id.) After the call, Morin wrote a summary of her conversation with Plaintiff, noting that Plaintiff had “expressed that this is the best she has ever felt.” (Id. at 133). Based on this conversation, a discussion with Director Morgan Tribuno, and a review of recent medical records showing improvement-including Dr. Rosenberg's September 2013 note-Morin recommended transferring Plaintiff's claim to a disability benefit specialist to determine whether Plaintiff “would have skills [for] light or sedentary occupations.” (Id.) Tribuno agreed with her recommendation, and Unum assigned the claim to Disability Benefit Specialist Nils Ferm. (Id. at 136.)

         On September 11, 2014, Unum sent Dr. Rosenberg and Dr. Crowley a questionnaire regarding Plaintiff's condition and work capacity. (Id. at 160-61, 169-70.) When asked whether Plaintiff was able to perform full-time work with occasional exertion of up to twenty pounds and occasional standing and walking, Dr. Rosenberg replied “no, ” because of her “chronic neurologic illness with periodic profound weakness.” (Id. at 160.) He opined that Plaintiff would never have the capacity to work full-time with those occupational demands because “CIDP is a chronic illness.” (Id. at 161.) Dr. Crowley submitted similar answers. (Id. at 169-70.) On September 29, 2014, Tribuno noted that, although Plaintiff's updated records reported improvement, Plaintiff was having “good days and bad days.” (Id. at 180.) Because “it [was] unclear if sustainability [was] an issue, ” he recommended direct observation. (Id.)

         Unum had surveillance video taken in October 2014, approximately nine months after Plaintiff's last IVIG treatment. (Doc. 16-5, at 60-69; Doc. 17.) On October 6, 2014, the investigator hired by Unum conducted surveillance from approximately 6:00 a.m. to 2:00 p.m. In the video, Plaintiff left her house, drove to her church, and stopped inside for a short period. (Id.) Plaintiff then drove to a local hospital where she stayed for approximately an hour and a half. (Id.) She then returned home, where she stayed the rest of the day. (Id.) The video shows Plaintiff driving without difficulty, walking with a smooth gait, carrying a purse, not using her hands to push off the vehicle while exiting, and showing no external signs of pain, such as grimaces or hesitancy. (Id.) The investigator conducted surveillance the next day during the same time frame, but observed no activity. (Id.)

         On October 13 and 14, 2014, one week after the surveillance video was taken, Plaintiff received another IVIG treatment. (Doc. 16-7, at 31-37.) Typically, Plaintiff would receive a prescription called Gamunex during her treatments, but, unfortunately, the hospital did not have Gamunex available. (Doc. 16-5, at 109.) Flebogamma was used instead even though Plaintiff had had “problems with other IVIG products in the past, ” according to Dr. Rosenberg. (Id.) Though Plaintiff began to experience symptoms only a month later, Dr. Rosenberg noted in November 2014 that Plaintiff was willing to try Flebogamma again. (Id.) However, if Plaintiff continued to experience problems with Flebogamma, Dr. Rosenberg stated that he would “insist” on Gamunex in the future. (Id.)

         On November 25, 2014, an Unum on-site physician, Dr. Daniel Krell, board certified in family medicine, completed a file review of Plaintiff's claim to address whether Plaintiff had the capacity to work “occupations requiring exertion occasionally up to 20 pounds with a range of frequent to occasional sit[ting], occasional standing/walking, as well as a combination of occasional to frequent bilateral [upper extremity] use for reaching, handling, fingering/keyboard use.” (Id. at 88-91.) Dr. Krell reviewed notes from Dr. Rosenberg and Dr. Crowley from 2013 and 2014, the surveillance video, and Plaintiff's self-reported symptoms and limitations. (Id. at 90.) He concluded that “no document test or physical exam findings” suggest that Plaintiff's condition would preclude full-time work. (Id. at 91.) Specifically, he noted that the only abnormal physical exam findings in 2013 and 2014 were “reduced deep tendon reflexes, ” but that this abnormality would not “preclude sustained performance” of gainful employment. (Id.) As for Plaintiff's self-reported symptoms, Dr. Krell noted that “none of these impairments is documented in the medical records” and could not identify a reason for the discrepancy. He listed the reason for Plaintiff's improvement as “appropriate use of IVIG and related . . . medication (gabapentin).” (Id.)

         Because Dr. Krell reached a decision that contradicted Plaintiff's treating physicians, his “next step” was to contact her treating physicians to resolve the discrepancy. (Id.) Dr. Krell attempted to contact Dr. Rosenberg and Dr. Crowley by telephone on December 3, 2014, [6] then sent letters requesting further notes and documentation of Plaintiff's condition. (Id. at 93-94, 97-98.) Dr. Crowley responded that Plaintiff's occupational capacity was “variable as her disease is variable.” (Id. at 126.) Dr. Rosenberg responded that he considered Plaintiff permanently disabled because, given her gradual worsening of symptoms after an IVIG treatment, Plaintiff would only be able to work two out of every eight weeks. (Id. at 104.) Dr. Rosenberg noted that Plaintiff feels “quite good” for two weeks after an IVIG treatment, but then “begins to once again accumulate symptoms [that include] pain that becomes extremely severe, parensthesias, and sensory deficits” that “gradually worsen[ ] until the next course of IVIG is administered.” (Id. at 103.) He also indicated that the longest Plaintiff had gone between IVIG treatments was three months. (Id. at 104.) His attached office notes from his last visit with Plaintiff in November 2014, however, revealed that Plaintiff's “[m]otor testing show[ed] normal tone, ” and, though he noted “a hint of distal weakness involving the interossei in both hands, ” it was “subtle at best.” (Id. at 109) Meanwhile, Defendant received another IVIG treatment on December 8 and 9, 2014. (Doc. 16-7, at 38-43.)

         After receiving Dr. Crowley and Dr. Rosenberg's responses, Unum obtained another file review of Plaintiff's claim on December 22, 2014, by Dr. Alan Neuren, board certified in neurology, who reviewed Plaintiff's file, including her treating physicians' responses and updated notes. (Doc. 16-5, at 136-41.) Dr. Neuren also concluded that the medical records did not reflect Plaintiff's reported limitations. (Id.) Specifically, her response to the IVIG treatments had been “excellent, ” and she was only requiring treatments two to three times a year. (Id. at 140.) Plaintiff “[had] demonstrated no weakness or only a hint of weakness in interosseous muscles.” (Id.) Dr. Neuren also noted that the December 2014 response from Dr. Rosenberg “is at variance with his own records” with regard to Plaintiff's IVIG treatments and subsequent symptoms. (Id.) On January 8, 2015, after given the hypothetical limitation recommended by Dr. Krell and Dr. Neuren, vocational rehabilitation consultant Carrie Gregor identified three occupations for which Plaintiff was “reasonably fitted by training, education, and experience to perform[:]” (1) triage nurse, (2) school nurse, and (3) office nurse. (Id. at 148- 52.) On February 3, 2015, Unum reached out to Plaintiff and her husband by telephone to confirm that there were no missing medical records and to inform them of Dr. Krell's and Dr. Neuren's conclusions. (Id. at 173, 176.) On the call, Plaintiff's husband indicated that Plaintiff was receiving IVIG treatments every two months and that he would contact Plaintiff's physicians for updated records. (Id.) A January 2015 office note from Dr. Crowley was submitted, which noted that Plaintiff had “flared” and was experiencing “severe pain.” (Id. at 185.) On February 6, 2015, Dr. Rosenberg left Unum a voicemail reiterating his opinion that Plaintiff was permanently disabled. (Id. at 192.)

         On February 10, 2015, Dr. Krell and Dr. Neuren considered the medical records that Unum obtained since their last review and prepared addenda to their reports. (Id. at 193-98; Doc. 16-6, at 1-2.) Both concluded that the new records did not change their opinions. (Id.) On February 13, 2015, Unum sent Plaintiff a letter terminating her long-term disability benefits (the “Initial Claims Decision”). (Doc. 16-6, at 8-13.) In its Initial Claims Decision, Unum described its reasons for terminating benefits and the information it considered. (Id.) Plaintiff acknowledges that Unum did not receive the October 2014 or December 2014 treatment records until after it issued the Initial Claims Decision. (Doc. 22, at 21.)

         On March 3 and 5, 2015, Plaintiff received an IVIG treatment. (Doc. 16-7, at 44-50.) This time, Plaintiff resumed treatment with Gamunex. (Id.) Dr. Rosenberg wrote a letter to Unum on March 4, 2015, to express his disagreement with Unum's decision. (Doc. 16-6, at 23- 24.) He explained again that Plaintiff will do “quite well” for approximately two weeks, “followed by a gradual decline with increasing weakness, fatigue, and painful sensory symptomatology, ” to where Plaintiff can only function “perhaps 2 weeks out of every 8 weeks.” (Id. at 23.) With regard to the surveillance video, he noted that if Plaintiff was observed within two weeks after an IVIG treatment, it would be a “meaningless observation, ” given that she functions normally during that period. (Id. at 24.) Similarly, in March 2015, Dr. Crowley noted that Plaintiff “feels and functions well for 2 weeks after her IVIG then this condition deteriorates.” (Doc. 16-6, at 160.) On March 27, 2015, Dr. Krell and Dr. Neuren reviewed these new records and prepared another addenda to their reports, but did not change their opinions. (Doc. 16-5, at 55-64.)

         On June 22, 2015, Plaintiff requested an appeal. (Id. at 137-51.) She asserted that her “symptoms increase and decrease with no regularity” and that “[t]here are periods when I can perform basic functions one day and can barely lift myself out of bed in the morning the next.” (Id. at 139.) Subsequently, on July 20 and 21, 2015, Plaintiff received an IVIG treatment. (Doc. 16-7, at 51-56.) On appeal, Unum had a third physician, Dr. Jaqueline Crawford, board certified in neurology, review Plaintiff's medical file. (Doc. 16-6, at 187-93.) On July 31, 2015, she concluded that the records on file show improvements in Plaintiff's condition, noting that Plaintiff's “physical examinations in 2013 & 2014 are largely normal, ” but requested: (1) additional IVIG treatment records because some records indicated she was receiving treatments every two months; and (2) additional pharmacy records to assess whether Plaintiff was experiencing impairing side effects from medications. (Id.) After obtaining these items, Dr. Crawford reviewed them and concluded that Plaintiff's reported limitations were not supported by the medical evidence. (Doc. 16-7, at 63-67.) She noted that the pharmacy records showed that Plaintiff had not received “Gabapentin for neuropathic discomfort January-November 2014 and no fills of Vicoprofen in 2014, ” suggesting “many months without pain of a degree to require prescription medication.” (Id. at 66.) She also noted that the updated IVIG treatment records did not reflect a treatment every two months as suggested. (Id.) She noted that Plaintiff had gone nine months without a IVIG treatment from January to October 2014, and that, although Plaintiff received treatments in October and December 2014, “[those] were with a new brand of IVIG which was determined to be ineffective.” (Id.) Additionally, “[w]hen [Plaintiff] was placed back on Gamunex in March 2015, she did not require another treatment for more than four months.” (Id.) Despite her initial concern about side effects from medication, Dr. Crawford noted that the pharmacy records showed such a long interval between refills that the dosage “would not be expected to create impairment in cognitive function.” (Id. at 67.)

         On September 2, 2015, Unum sent Plaintiff a letter informing her that her appeal had been denied and stating the reasons for its decision (the “Appeal Decision”). (Id. at 72-82.) The Appeal Decision considered Plaintiff's concerns in her appeal of the Initial Claims Decision about her varying symptoms and that on some days she “can barely lift [herself] out of bed in the morning.” (Doc. 16-6, at 139.) It noted in response that Neurontin provides Plaintiff some relief, according to her own words, and allows her to carry out day-to-day tasks. (Doc. 16-7, at 79.) Additionally, though Plaintiff alleged that, at times, she would supplement Neurontin with Vicoprofen because of the pain (Doc. 16-6, at 139), Unum noted that Plaintiff's pharmacy records “show no fills of Vicoprofen in 2014 and none for the first five months of 2015.” (Doc. 16-7, at 79.) In regard to the surveillance video, Unum noted that Plaintiff did not display physical pain indicators, walked with a smooth gait, carried a bag, and did not use her hands to push off the vehicle to exit it. (Id. at 77.) Additionally, because the video was taken nine months after an infusion, “[t]his period would have been expected to capture you at your most impaired from CIDP per the description of Dr. Rosenberg.” (Id.) Unum acknowledged that Plaintiff received IVIG treatments in October and December 2014, just two months apart. (Doc. 16-7, at 77.) But Unum noted that the records reflect that these treatments “were with a new brand of IVIG, which was determined to be ineffective.” (Id.)

         Plaintiff filed the instant action to obtain judicial review of Unum's decision on October 10, 2016. (Doc. 1.) Unum filed the administrative record (the “Administrative Record”) on March 31, 2017. (Docs. 16, 17.) On July 3, 2017, Plaintiff filed a motion for judgment as a matter of law. (Doc. 22.) On July 18, 2017, Defendants filed a brief in response. ...

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