Lloyd v. The Procter & Gamble Disability Benefit Plan

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

MARK LLOYD, Case No. 1:18-cv-32

Plaintiff, : Judge Matthew W. McFarland

V.

THE PROCTER & GAMBLE DISABILITY :

BENEFIT PLAN, et al.,

Defendants. :

ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE

ADMINISTRATIVE RECORD (DOC. 28), GRANTING IN PART PLAINTIFF'S

MOTION FOR JUDGMENT ON THE RECORD (DOC. 29), ORDERING THE

PAYMENT OF PARTIAL DISABILITY PAYMENTS FROM JANUARY 16, 2017

THROUGH JANUARY 28, 2017, AND TERMINATING ACTION

This ERISA case is before the Court on the parties’ cross-motions for judgment

on the administrative record and their responsive memoranda. (Docs. 28, 29, 31-32.)

For the reasons discussed below, the Court DENIES Defendants’ motion and GRANTS

IN PART Plaintiff's motion.

FACTS

Plaintiff Mark Lloyd worked as an IT Systems/Solutions manager at the Procter

& Gamble Company (“P&G”) from June 19, 2000 until January 27, 2017, when he was

terminated. He brings this action under the Employee Retirement Income Security Act

of 1974 (“ERISA”) to recover benefits allegedly due to him under the terms of P&G's

disability insurance plans. Plaintiff specifically challenges the denial of two

applications for benefits.

In his first claim, Plaintiff alleges that the P&G Disability Committee improperly

denied his December 1, 2015 application for short term disability (“STD”) and long-term

disability (“LTD”) benefits, referred to as Claim Number CF24KW. In his second claim,

Plaintiff alleges that his January 27, 2017 application for STD and LTD benefits, referred

to as Claim Number CF2BHF, was improperly denied.

A. P&G's Disability Insurance Plans

Plaintiff was enrolled in three disability plans through P&G: The Procter &

Gamble Disability Benefit Plan, The Procter & Gamble Long-Term Disability Allowance

Policy Plan, and The Procter & Gamble Optional Disability Insurance Plan. Plaintiff

refers to these three plans collectively as “the Plan,” as does the Court for purposes of

this Order.

The P&G Disability Committee, which during the relevant period was called the

Board of Trustees, (hereinafter the “Committee”) is the Plan’s named fiduciary and is

responsible for reviewing and making all final appeal decisions concerning benefit

claims. The Plan expressly states that the Committee “has all the power, responsibility,

and discretionary authority necessary to carry out the administration of the Plan in a

uniform manner that is consistent with the terms of the Plan and solely for the benefit of

the Plan’s participants, including, but not limited to the power and discretionary

authority to make findings of fact and interpret Plan terms.” (Doc. 25-3 at PageID#

3645, 3680 & 3719.)

Local or corporate review boards process initial claims for benefits. An outside

company called Genex Services (“Genex”) provides medical claims administration

services for the review boards. Genex gathers pertinent medical information, conducts

an initial review, and makes recommendations to the review board as to whether a

claim should be approved or denied.

Under the Plan, a participant may receive benefits for a “partial disability” for up

to a maximum of 52 weeks. The Plan defines “partial disability” as follows:

Partial disability is a mental or physical condition resulting from an illness

or injury because of which the participant is receiving medical treatment

and cannot perform the regular duties of his or her current job but can

perform other useful roles at the same Company site or at other jobs

outside the Company. Thus, a partially disabled participant is not

necessarily prevented from performing useful tasks, utilizing public or

private transportation, or taking part in social or business activities

outside the home.

(Doc. 25-3 at PageID# 3731.)

In order to qualify for continuing disability benefits beyond 52 weeks (“LTD

Benefits”), a participant must have a “total disability.” A “total disability” is defined as

follows:

Total disability means a mental or physical condition resulting from an

illness or injury which is generally considered totally disabling by the

medical profession and for which the participant is receiving regular

recognized treatment by a qualified medical professional. Usually, total

disability involves a condition of such severity so as to require care in a

hospital or restriction to the immediate confines of the home.

(Id.)

The Plan provides that it is the participant’s burden to establish whether he is

partially or totally disabled. (Id. at PagelID# 3835.) “Partial disability” and “total

disability” must be based on objective medical evidence. (Id.)

B. Plaintiff's December 1, 2015 Application for Benefits

From as early as 2000, Plaintiff has suffered from gastrointestinal symptoms,

including intermittent constipation, bloating, distension and discomfort. (Doc. 22-2 at

PagelD# 309). On September 9, 2014, Plaintiff first applied for STD benefits under the

Plan and received benefits from September 8, 2014 through October 19, 2014. (Doc. 22-5

at PageID# 1068.) On October 20, 2014, Plaintiff returned to work.

A few months later, Plaintiff again sought STD benefits related to these

conditions, with a relapse date of January 23, 2015. (Doc. 25-1 at PageID# 2940.) On

March 20, 2015, the Plan denied benefits to Plaintiff finding there was “insufficient

objective medical information provided to support disability.” (Id.) Plaintiff appealed

the denial, which was upheld on October 30, 2015. (Id. at PageID# 2937-39.)

On December 1, 2015, Plaintiff again submitted a claim for STD and LTD benefits

as a totally disabled participant, claiming disability as of November 3, 2015. (PagelD#

1058.) On January 19, 2016, the Corporate Disability Reviewing Board issued its

determination that the objective clinical documentation did not support total disability.

On February 26, 2016, Plaintiff administratively appealed and, on April 8, 2016, the

Committee upheld the decision. (Doc. 25-2 at PageID# 3297-3300.) Plaintiff's first claim

in this case is for review of the denial of his December 1, 2015 application for benefits.

Cc. Plaintiff’s January 27, 2017 Application for Benefits

On January 27, 2017, the same day that Plaintiff's employment was terminated,

he filed an application for benefits, which was assigned a new claim number - Claim

No. CF2BHF. (Doc. 22-1 at PageID# 81.) Plaintiff again sought benefits as a totally

disabled participant premised on an onset date of January 16, 2017. (Id.) On March 10,

2017, the Corporate Disability Reviewing Board issued an initial adverse determination

of that claim. On or about September 7, 2017, Plaintiff appealed and, on October 20,

2017, the Committee once again upheld the adverse determination. (Doc. 22-1 at

PageID# 173-87; Doc. 24-3 at PagelD# 2384-86.)

LEGAL STANDARD

The Court’s review of Plaintiff's claims is limited to the administrative record for

the benefit determinations. Evans v. UnumProvident Corp., 434 F.3d 866, 875 (6th Cir.

2006). In addition, because the plan administrator in this case had discretionary

authority to determine benefits, the Court must apply “the highly deferential arbitrary

and capricious standard” in reviewing the denial of Plaintiff's claims for benefits.

Wilkens v. P&G Disability Benefit Plan, No. 1:11-cv-521, 2013 U.S. Dist. LEXIS 108762 (S.D.

Ohio Aug. 2, 2013.) This is “the least demanding form of judicial review.” Davis v. Ky.

Fin. Cos, Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989). “An outcome is not arbitrary

or capricious where the evidence supports a reasoned explanation for that particular

outcome.” Kirkham v. Prudential Ins. Co. of Am., No. 1:09-cv-733, 2011 U.S. Dist. LEXIS

53690, at *9 (S.D. Ohio Mar. 11, 2011) (citing Killian v. Healthsource Provident

Administrators, Inc., 152 F.3d 514, 520 (6th Cir. 1998)).

Arbitrary and capricious review is deferential, but it “is no mere formality.”

Glenn v. Metropolitan Life Ins. Co., 461 F.3d 660, 666 (6th Cir. 2006). The Court must

review the plan administrator’s decision in light of the record before it, including “[t]he

quality and quantity of the medical evidence; the existence of any conflicts of interest;

whether the Administrator considered any disability finding by the Social Security

Administration; and whether the Administrator contracted with physicians to conduct a

file review as opposed to a physical examination of the claimant.” Shaw v. AT&T

Umbrella Benefit Plan No. 1, 795 F.3d 538, 547 (6th Cir. 2015) (internal quotation marks

omitted). “[T]he ultimate issue in an ERISA denial of benefits case is not whether

discrete acts by the plan administrator are arbitrary and capricious but whether its

ultimate decision denying benefits was arbitrary and capricious.” Spangler v. Lockheed

Martin Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002).

Plaintiff maintains the burden of showing his entitlement to benefits under the

Plan. Rose v. Hartford Fin. Servs. Grp., 268 F. App’x 444, 452 (6th Cir. 2008) (citing Tracy

v. Pharmacia & Upjohn Absence Payment Plan, 195 F. App’x 511, 516 n.4 (6th Cir. 2006)).

ANALYSIS

Defendants argue the Plan’s decisions must be upheld under the highly

deferential arbitrary and capricious standard of review. Alternatively, they argue that

Plaintiff's claims are both procedurally barred. Plaintiff contends that, even under the

arbitrary and capricious standard, the denial of benefits must be overruled.

A. Plaintiff's Claims Are Not Procedurally Barred

Before turning to the administrative record, the Court considers the argument

that Plaintiff's claims are procedurally barred. The Plan contains a two-year limitations

period for filing suit on a denied claim, which accrues from the time of the initial

adverse determination. (Doc. 25-3 at PageID# 3841-42.) As Defendants note,

contractual limitations in a disability insurance plan are enforceable. See Heimeshoff v.

Hartford Life & Acc. Ins. Co., 571 U.S. 99 (2013).

Defendants argue that Plaintiff was required to bring this lawsuit within two

years of March 20, 2015, the date when he received the first denial of a claim for

disability benefits. Defendants argue that all of Plaintiff's claims must be construed as

subject to that initial denial based on the following provision:

If a Participant who becomes totally disabled and then later returns to

work should:

a. suffer a relapse of a previous disability that caused absence while a

Participant during the preceding 52 weeks, he or she shall again be

eligible for disability benefits from this Plan as if the periods of

disability were continuous.

b. suffer a relapse of a previous disability that caused previous

absence more than 52 weeks after the end of the previous disability,

the relapse will be considered as a separate disability not subject to

the provision of subsection a., above. With respect to this previous

disability, a Participant receiving Partial Disability benefits shall

not be considered as having returned to work.

(Doc. 25-3 at PageID# 3836.) Defendants interpret this language to mean that any

application for benefits that is not separated by a continuous 52-week period of work

from a previous application is treated as a single disability claim. Thus, Defendants

argue, Plaintiff's subsequent applications for benefits on December 3, 2015 and January

27, 2017 did not constitute new claims. Instead, they were a continuation of Plaintiff's

earlier claim for disability benefits, which was denied on March 20, 2015.

In response, Plaintiff argues that Defendants are estopped from asserting the

statute of limitations based on the representations in their denial letters. The Board's

letter denying his December 1, 2015 application for benefits stated that “the Applicable

Limitations Period will end on January 19, 2018 which is the second anniversary date of

this letter.” (Doc. 22-5 at PageID# 1051.) Likewise, with respect to Plaintiff's January

27, 2017 application, the Board’s denial letter stated that “the Applicable Limitations

Period will end on March 10, 2019.” (Doc. 22-2 at PageID# 533.)

Promissory estoppel claims are viable under ERISA. Haviland v. Metro. Life Ins.

Co., 730 F.3d 563, 567 (6th Cir. 2013). The elements of a promissory estoppel claim are:

(1) there must be conduct or language amounting to a representation of

material fact; (2) the party to be estopped must be aware of the true facts;

(3) the party to be estopped must intend that the representation be acted

on, or the party asserting the estoppel must reasonably believe that the

party to be estopped so intends; (4) the party asserting the estoppel must

be unaware of the true facts; and (5) the party asserting estoppel must

reasonably or justifiably rely on the representation to his detriment.

Id. at 567-68 (quoting Sprague v. General Motors Corp., 133 F.3d 388, 403 (6th Cir. 1998)).

“Principles of estoppel ... cannot be applied to vary the terms of unambiguous plan

documents; estoppel can only be invoked in the context of ambiguous plan provisions.”

Sprague, 133 F.3d at 404.

Here, Plaintiff asserts facts sufficient to collaterally estop Defendants’ argument

for application of the statute of limitations. Plaintiff reasonably relied on Defendants’

statements regarding the applicable limitations period. Moreover, the provision relied

upon by Defendants is not clear and unambiguous. Defendants interpret the term

“disability” to mean the employee’s last application for disability benefits, rather than

the last time that the employee was actually found to be disabled under the Plan.

Defendants also interpret the provision to require that the employee work 52

continuous weeks after a disability in order to apply for benefits based on a new

disability, when it could also be construed to require merely the passage of 52 weeks.

Not surprisingly, Plaintiff construes the term disability to mean a condition

recognized as a disability under the Plan. Plaintiff was recognized as suffering from a

disability under the Plan only once in the record—from September 8, 2014 through

October 19, 2014. Applying the parties’ competing interpretations of the provision

results in significantly different outcomes. The Court need not decide which

interpretation is correct as a matter of law, however, to find that the provision is, at least

on its face, ambiguous. As a result, Plaintiff was entitled to rely on Defendants’

representations regarding the applicable statutes of limitations for his claims. They are

not procedurally barred.

B. Whether the Plan Acted Arbitrarily and Capriciously in Denying

Plaintiff’s Applications for Benefits

1. Plaintiff's December 1, 2015 Application for Benefits

The Plan did not act arbitrarily and capriciously in denying Plaintiff's December

1, 2015 application for benefits. Rather, after a review of the application, it determined

that there was a lack of objective medical information to support a finding of partial or

total disability. The Plan noted, for example, that the documentation from Plaintiff's

family physician, Dr. Kanodia, “described [him] as appearing well with no acute

distress and with no documented clinical abnormalities.” (Doc. 25-2 at PageID# 3297.)

Additionally, the Plan noted that “intermittent ER visits have repeatedly resulted in

negative findings with no evidence of bowel obstruction.” (Id. at PageID# 3299.)

The Plan also considered the additional information that Plaintiff submitted on

appeal, including the documentation of Plaintiff's medical condition from Dr. Kirby at

the Cleveland Medical Clinic. (Id. at PagelID# 3298-99.) In reviewing Dr. Kirby’s files,

the Plan relied on an independent review conducted by Dr. Sunil Sheth, a board-

certified gastroenterologist. (Id. at PageID# 3299; Doc. 22-2 at PageID# 288-297.)

Dr. Sheth is Co-Director of the Pancreas Center at Beth Israel Medical Center and

an Assistant Professor of Medicine at Harvard Medical School. (Doc. 22-2 at PageID#

288.) He graduated from Seth G.S. Medical College in India and completed his

internship and residency in internal medicine at TN Medical College and BYL Nair

Hospital and Beth Israel Deaconess Medical Center. (Id.) He then completed a

fellowship in gastroenterology at Beth Israel Deaconess Medical Center followed by a

fellowship in interventional gastroenterology at Maine Medical Center. (Id. at PageID#

288-89.) He is board-certified in internal medicine and gastroenterology. (ld. at

PagelD# 289.) His clinical interests include pancreatic disease, general

gastroenterology, colon cancer screening, inflammatory bowel disease, therapeutic

endoscopy, and celiac sprue. (Id.)

In reviewing the medical documentation, Dr. Sheth observed:

[Plaintiff] has seen several GI providers and more recently is seeing Dr.

Donald Kirby at the Cleveland Clinic in Ohio who feels that he may have

a diagnosis of chronic intestinal pseudo-obstruction. I am not in

agreement with his diagnosis as will be explained later in the Analysis.

From a gastrointestinal standpoint, the claimant has a combination of

abdominal distention, bloating associated with fatigue, with a completely

negative GI workup as outlined in my previous review dated 10/1/15

and also as will be summarized below. He has had multiple endoscopies,

colonoscopies, and fructose and lactose breath tests. He has had multiple

CT scans, abdominal x-rays, labs, and ER visits that have been

inconclusive. He had a SmartPill motility study which was essentially

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unremarkable except for slight delay in colonic motility. Based on

intermittent symptoms of abdominal distention and bloating, there is no

GI impairment. There is no objective evidence of mechanical obstruction

or an inflammatory disease. Hence, from a gastrointestinal standpoint,

there are no restrictions or limitations.

(Doc. 22-2 at PageID# 291.)

Dr. Sheth acknowledged that Dr. Kanodia and Dr. Kirby both supported

“disability” from abdominal distention, fatigue, and symptoms resembling presumed

bowel obstruction. (Id. at PageID# 293.) Dr. Kirby had “also stated that the claimant

would really like to go back to work but is not able to do so without any reason why he

is not able to do so.” (Doc. 22-2 at PageID# 294.) Dr. Sheth concluded, however, that

the basis of Dr. Kirby’s diagnosis of chronic intestinal pseudo-obstruction (“CIPO”) was

unclear. He explained that, due to the lack of objective medical evidence, the diagnosis

was “just [Dr. Kirby’s] opinion.” (Id. at PageID# 295.) Likewise, Dr. Sheth did not

credit Dr. Kanodia’s opinion that Plaintiff had chronic intestinal dysmotility because he

had a “completely negative workup” for the symptoms of that disorder. (Id. at PageID#

295.)

In the Analysis section, Dr. Sheth wrote:

I disagree with Dr. Donald Kirby’s diagnosis of chronic intestinal pseudo-

obstruction. As reviewed by Dr. Michael Camilleri in his up-to-date

article, and also well known in the literature, chronic intestinal pseudo-

obstruction is a diagnosis made when there is evidence of obstruction

without true mechanical obstruction. The claimant, on multiple occasions

during acute flares, has had no evidence of bowel distention, dilated

loops, or air-fluid levels. Moreover, the critical aspect of chronic intestinal

pseudo-obstruction is evidence of impaired motility, which the claimant

does not have, as he had an essentially normal gastric emptying study and

normal SmartPill manometry. He likely has underlying mild constipation,

which is improved with linaclotide. Moreover, the causes of chronic

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intestinal pseudo-obstruction are either neuropathic, myopathic, or

secondary to collagen vascular disease, endocrine disorders,

chemotherapy, radiation therapy, or medication. None of these apply to

him. He has not had a full-thickness small bowel biopsy.

Regardless of the diagnosis given for his symptoms of abdominal

distention, whether it may be irritable bowel syndrome, functional GI

disorder, chronic intestinal dysmotility, or even chronic intestinal pseudo-

obstruction, the symptom of abdominal distention and bloating does not

cause any GI impairment. There is no significant additional data since my

last review of 10/1/15. Hence, my clinical opinion remains unchanged.

The claimant has no impairment from a GI standpoint and, therefore, does

not have any restrictions or limitations.

(Doc. 22-2 at PageID# 295.) Given his disagreement with Dr. Kirby, Dr. Sheth stated

would not be unreasonable, if necessary, to have a second GI reviewer comment on

impairment.” (Id.) The Plan did not, however, obtain a second GI reviewer's opinion.

Plaintiff argues that the Plan acted arbitrarily and capriciously when it failed to seek a

second opinion, as suggested by Dr. Sheth. He does not cite any authority, however, for

the proposition that the Plan is required to obtain more than one qualified reviewer.

Dr. Sheth’s review was thorough and presented a rational basis for the

conclusion that Plaintiff was not disabled. Plaintiff objects to Dr. Sheth’s analysis for

several reasons, but those objections represent differences of professional opinion. It

was neither arbitrary nor capricious for the Plan to accept Dr. Sheth’s opinion in

reaching its conclusion. There may be circumstances where a reviewing physician's

analysis is so illogical or ungrounded that reliance on that analysis may be deemed

arbitrary and capricious. This, however, is not one of those cases.

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2 Plaintiff’s January 27, 2017 Application for Benefits

In Plaintiff's January 27, 2017 application for benefits, he indicated that his

primary condition was CIPO with secondary conditions of chronic fatigue syndrome,

fibromyalgia, slow transit constipation, abdominal distension, generalized abdominal

pain and chronic fatigue. (Doc. 22-2 at PagelID# 536.) Genex, the third-party claim

processing service, reviewed the claim and concluded that the objective medical

documentation did not support disability. (Doc. 22-3 at PageID# 613.) The Review

Board then completed its review and denied the claim on March 10, 2017. (Doc. 22-2 at

PagelD# 531-33.)

Plaintiff appealed the Review Board’s denial and submitted additional

documentation, including a support letter from Dr. Kirby. (Doc. 22-1 at PageID# 191-

94.) He also included a “Physician’s Progress Report” from Dr. Kirby that had been

submitted in connection with a different disability claim. (Doc. 22-4 at PageID# 926-29.)

Plaintiff's primary care physician, Dr. Robert Hellman, provided two reports: a Genex

Work Status form and a residual functional capacity assessment, each dated February

28, 2017. (Doc. 22-1 at PageID# 242-48.) Finally, Plaintiff submitted a report from an

integrative medicine physician named Dr. Rene Blaha. Dr. Blaha’s report was prepared

in connection with Plaintiff's Social Security insurance claim. (Doc. 22-2 at PagelID#

283.) Along with Dr. Blaha’s report, Plaintiff provided documentation showing that

CIPO is a medical condition set forth in the Social Security Administration's list of

“Compassionate Allowances.” (Id. at PageID# 448-65.)

The Plan asked Cristina Strahotin, a board-certified gastroenterologist, to

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perform a medical review of Plaintiff's file, which consisted of over 2,000 pages. (Doc.

22-3 at PageID# 870-81.) She concluded that “a partial and temporary impairment is

supported for the timeframe of 01/16/2017 to the present on the basis of the claimant's

recurrent debilitating gastrointestinal symptoms.” (Id. at PagelD# 876.) She explained

the rationale for her conclusion—in pertinent part—as follows:

A partial or temporary impairment is supported on the basis of the

claimant’s recurrent debilitating gastrointestinal symptoms and_ his

primary gastroenterologist’s opinion, Dr. Kirby, an expert in a field with

only a handful of experts in the country, who has expressed on several

occasions, including support letters dated February, 2016 and February,

2017, that the claimant is impaired, though Dr. Kirby is of the opinion that

the claimant is totally impaired.

Of all the specialists that the claimant has seen, Dr. Kirby has the longest

relationship with the claimant, over three years of continuity of care,

which is paramount in all functional gastrointestinal conditions, and he

has intimate knowledge of this claimant’s symptom complex/ diagnoses.

He advocates for his patient like we all do for our patients. Aside from

that, there are multiple office visits including Dr. Kirby’s last note dated

8/4/17, that state that the claimant is well nourished, not in any acute

distress, with soft abdomen, only with moderate distention, minimally

tender diffusely to palpation, percussion, without guarding, rebound, or

hepatosplenomegaly. The claimant’s weight on multiple visits has

remained stable and even slightly increased, (last weight on 8/4/17 was

207 lbs, BMI 29.98 which actually puts him in the overweight category), he

has not had any ED visits since January, 2016 or admissions, has had some

improvement though very little, however, despite these positive findings,

the conclusion from Dr. Kirby is that he is still bed-bound 30% of the time

and completely impaired. This conclusion is most likely driven by the

claimant's extensive self-assessment diaries of symptoms and Dr. Kirby’s

knowledge of the natural history of chronic intestinal pseudo-obstruction

(CIPO). The other supporting physicians, including PCP, Dr. Hellman,

Dr. Blaha, and Dr. Kanodia, while they also have a long-term relationship

with the claimant (Dr. Hellman longer than the other two providers), they

are not specialists in the field of gastroenterology or motility disorders.

Their notes and restriction/limitation forms rely heavily on Dr. Kirby’s

14

assessment and appear unchanged over time though the clinical notes

sometimes mention “appears well, symptoms improved,” which creates

an inconsistency that is detrimental to the claimant's case.

The claimant himself, though with debilitating symptoms and chronic

fatigue, where most notes rate his level of energy 3-4/10, has been able to

put a lot of effort into creating charts with his symptoms, laboratory data,

testing to date, measurements of abdominal girth and extensive research

regarding this condition, criteria for disability, and biographies/ resumes

of the providers treating him as well as of the reviewer, and while all of

this is commendable and helpful to the medical providers, it can also

constitute and inconsistency with clinical notes and the self-reported

symptoms. The claimant is a computer analyst and perhaps computer

work would be feasible even during his bed-ridden episodes.

His underlying condition, CIPO, is rare, and therefore, most of the

management is based on expert opinion. The claimant has reached out to

other doctors, beside Dr. Kirby, also experts in the field, including Dr.

Abelle and Dr. Wo from prestigious institutions, and while somewhat

consistent, it reveals a slight discordance of opinions, even between

experts in the field. For instance, Dr. Abelle at his institution (University

of Louisville, KY) considers CIPO as a completely “disabling” condition,

while Dr. Wo (Indiana University, IN) opines that only small bowel CIPO

with small bowel dilation would be a completely “disabling” condition.

This claimant, on multiple imaging tests does not have dilated small

bowel, though his intra-operative evaluation dated May, 2014 revealed

intermittently dilated loops of bowel, which were not biopsied, so not

clear cut.

The claimant wrote a counterargument letter to Dr. Sheth’s report [the

report written in consideration of Plaintiff's December 1, 2015

application], stating that this was a biased report, not “independent” as it

was paid by Genex via P&G and Dr. Sheth was under qualified to conduct

such review. Moreover, he goes to say that “while unlikely unstated, he

knows that he will not be asked for future reports if he finds too many

participants disabled.” This is a fundamental error as we all practice

medicine following an ethical code where patient care comes first. Dr.

Sheth, like Dr. Kirby, provided a medical opinion based on the same

objective evidence and literature, and though completely different, it

15

underscores the controversy that can occur in rare disorders. In

conditions like CIPO, the management is entirely based on expert opinion

rather than guidelines. As noted above, two other experts in the field

have a slightly different opinion about the impairment caused by CIPO.

I recommend modifications such as working from home, limited hours,

less responsibilities requiring maximal concentration, more lenience for

those days where he can only lay in bed, close proximity to a bathroom,

and frequent bathroom breaks are reasonable to attempt. I think that all

these issues should be reevaluated in six month from this report and close

communication with Dr. Kirby through this process is key.

(Doc. 22-3 at PageID# 876-78.)

Based on the Court’s review of the record, Dr. Strahotin’s report presents an

evenhanded and reasonable analysis of the opinions, reported symptoms, and other

medical information in Plaintiff's file. A person with CIPO suffers from the same

symptoms as someone who has been diagnosed with an intestinal obstruction. An

intestinal obstruction, however, can be confirmed through objective medical tests.

CIPO cannot. As a result, a treating physician must rely on a subjective assessment of

the patient's self-reported symptoms and the medical information that can be gleaned

through available clinical tests. And, as Dr. Strahotin observed, reasonable experts in

the field have reached different conclusions regarding the level of disability caused by

CIPO. Dr. Strahotin’s finding that Plaintiff was partially disabled was rational in light

of the complete file, and especially the additional documentation submitted in support

of his appeal.

On October 20, 2017, however, the Plan issued a letter denying Plaintiff's appeal

and confirming the denial of his application for benefits. (Doc. 24-3 at PageID# 2384-

16

86.) In doing so, the Plan noted the documentation indicating Plaintiff was

experiencing mild symptoms and stated its consideration included “an independent

review” by a board-certified gastroenterologist (Dr. Strahotin) who determined Plaintiff

would be able to work with limitations. It then noted the following clinical

documentation:

There is no record of emergency room visits or hospitalizations since

January 2016. The January 19, 2017, office visit notes from his medical

provider, Dr. Donald Kirby, documented that Mr. Lloyd had normal

bowel sounds, moderately distended, and minimally tender diffusely to

percussion as well as palpation. The February 10, 2017, office visit notes

from his medical provider, Dr. Robert Hellman, documented that his

abdomen was soft, some distention, mildly tender, no guarding, no

masses, and no organomegaly[.] The February 27, 2017, office visit notes

from his medical provider, Dr. Anup Kanodia, documented that he was in

no distress and appeared well.

(Doc. 24-3 at PageID# 2386.) After reciting the above notes, and despite Dr. Strahotin’s

partial disability finding, the Plan concluded that Plaintiff's symptoms “are intermittent

and do not constitute a disabling impairment, either as Partially or Totally Disabling, as

defined by the Plan.” (Id.)

Here, the Plan’s ultimate conclusion cannot be reconciled with the overwhelming

evidence, including its own specialist’s review, that Plaintiff's intermittent episodes of

pseudo-obstruction were partially disabling. If Plaintiff's application were based on the

same evidence as his previous application, then the denial of benefits would have been

understandable. In previous applications, Plaintiff did not present sufficient evidence

to compel a finding that he suffered from a partially or totally disabling impairment.

There was room for professional disagreement, as evidence by Dr. Sheth’s report. In

17

support of his final application, however, Plaintiff convincingly demonstrated a partial

impairment. The question, therefore, is whether the Plan presented a rational basis for

its determination he had no impairment whatsoever.

The Plan ostensibly considered the most recent clinical notes and opinions that

Plaintiff submitted, as suggested by the excerpt above, but it highlighted only those

portions of them supporting its denial decision. For example, the Plan credited Dr.

Kirby’s office visit notes—which included normal bowel sounds and moderate

distention—but failed to explain why it nevertheless discounted Dr. Kirby’s resolute

assertion that Plaintiff's condition was totally disabling. As Dr. Strahotin

acknowledged, Dr. Kirby is an expert in the diagnosis and treatment of CIPO. And, by

the date of his final application for benefits, Dr. Kirby had seen Plaintiff a total of seven

times. These are significant facts that the Plan failed to address in its decision to

contradict Dr. Kirby’s determination that Plaintiff is disabled.

The Plan also failed to address the additional documentation supporting Dr.

Kirby’s and Dr. Strahotin’s disability findings. At his own expense, Plaintiff obtained a

secondary review of his file by Dr. C. Prakash Gyawali, a gastroenterologist at

Washington University in St. Louis, Missouri. Dr. Gyawali’s review was consistent

with a partial disability finding, in that he agreed that “there are elements in his story

that might suggest intermittent episodes of pseudo-obstruction, manifesting as

abdominal bloating and distension.” (Doc. 22-2 at PageID# 309.) He noted that the

episodes had been increasing in frequency but had stabilized in recent months. (Id.)

The documentation from three other treating physicians also supported a

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partial disability finding. Dr. Hellman, Plaintiff's primary care physician; Dr. Kanodia,

an integrative medicine specialist; and Dr. Blaha, also an integrative specialist, all found

that Plaintiff was unable to work due to a combination of CIPO, fibromyalgia and

chronic fatigue. (See Doc. 22-1 at PagelID# 242-62, 264-69, and Doc. 22-2 at PageID#

283.) Dr. Blaha also added food sensitivities to the list of conditions. (Id. at PagelD#

283.) As Dr. Strahotin noted, none of these physicians are experts in CIPO or intestinal

motility disorders so their diagnoses in this regard appear to rely heavily on Dr. Kirby’s

treatment and Plaintiff's self-reported case history. Nonetheless, in light of the

combined weight of all these opinions, the Plan’s explanation for its decision should

have accounted for why it disagreed with their conclusions, even though it selectively

relied on their office visit notes.

In light of all the above, the Plan acted arbitrarily and capriciously in finding that

Plaintiff was not partially disabled as of January 16, 2017. Plaintiff argues, however,

that a total disability finding was warranted because the restrictions suggested by Dr.

Strahotin had already been attempted and failed. Plaintiff argues that the Plan acted

arbitrarily and capriciously when it failed to ask Dr. Strahotin if her opinion on

Plaintiff's disability status would be different based on Plaintiff’s work history.

In response, the Plan asserts that it was not necessary to ask Dr. Strahotin to

supplement her review. She was reviewing the 2017 claim. Plaintiff is referring to a

period two years earlier than the period relevant to that claim. Moreover, in February

2016, Plaintiff began taking domperidone and experiencing an improvement in his

condition. Consistent with this view, Dr. Strahotin “disagree[d] with Dr. Kirby

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regarding Mr. Lloyd’s level of impairment” and opined that his condition “is

significantly better since the initiation of Domperidone.” (Doc. 22-3 at PageID# 894.)

She further opined there was “not enough objective information to conclude that the

claimant is unable to perform [work] in any capacity.” (Id. at PageID# 893.)

The Court agrees that the Plan was not required to ask Dr. Strahotin about the

effect of Plaintiff's work history on her disability finding. Her review included

sufficient information for her to make a reasoned determination of his work capacity

during the period relevant to the claim. The existence of contradictory information

does not, in itself, make the administrator’s decision arbitrary and capricious. Hammond

v. Procter & Gamble Health and Long Term Disability Plan, No. 18-11343-RGS, 2019 US

Dist. LEXIS 115105 at *3 (D. Mass. July 11, 2019).

C. Plaintiff's Additional Arguments

Plaintiff makes three additional arguments directed at the Plan’s review

generally, rather than its review of a specific application for benefits. The Court

considers these arguments below.

1. Plaintiff’s Argument that the Plan Should Have Obtained a

Medical Review from a CIPO Expert

Plaintiff argues that the Plan acted arbitrarily and capriciously in its denial of

benefits because it did not obtain a medical review from a physician specializing in the

diagnosis and treatment of CIPO. Under 29 C.F.R. § 2560.503-1, the Plan was required

to “consult with a health care professional who has appropriate training and experience

in the field of medicine involved in the medical judgment.” Drs. Sheth and Strahotin,

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not experts on CIPO, were board-certified gastroenterologists capable and qualified to

conduct the reviews. The regulations require appropriate training and expertise, not

the absolute best training and expertise. The Plan met is obligation in this regard.

2. Plaintiff’s Argument the Plan Failed to Meaningfully Consider

the Opinions of Dr. Kirby and Other Treating Physicians

Plaintiff argues the Plan failed to give due consideration to the opinions of Dr.

Kirby and three other treating physicians— namely, Drs. Hellman, Kanodia, and Blaha.

This argument dovetails with Plaintiff's argument that the Plan failed to explain the

basis for disagreeing with “the views of presented by the claimant to the Plan of health

care professionals who have been treating him.” 29 CFR 2560.503-1(g)(1)(vii)(a). In the

above analysis of the January 27, 2017 application, the Court agreed that the Plan failed

to explain how its determination that Plaintiff was not disabled squared with these

physicians’ opinions.

The Court disagrees, however, that the medical documentation relevant to

Plaintiff's December 1, 2015 application was not given due consideration. The Plan

considered the documentation from Plaintiff's treating physicians, to the extent that

they were available, and explained why it followed the analysis of its reviewing

physician, Dr. Sheth.

3. Plaintiff’s Argument that the Plan’s Review was Prejudiced

Because It Considered his Applications Relapse Claims

Throughout his memorandum, Plaintiff argues that his applications were not

afforded an adequate review because they were considered “relapse” claims. The

record does not support this assertion. Certainly, the reports submitted by Drs. Sheth

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and Strahotin provide a thorough analysis of the complete file before each of them,

respectively. In addition, due to the nature of Plaintiff's conditions, it makes sense that

the review of his file would incorporate his medical history and the impact of different

treatment protocols on his symptoms.

D. Appropriate Remedy

Having determined that the Plan’s denial of Plaintiff's January 27, 2017

application for benefits was arbitrary and capricious, the Court must determine the

proper remedy. Generally, “courts may either award benefits to the claimant or

remand to the plan administrator.” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 621 (6th

Cir. 2006). A remand to the plan administrator is appropriate “where the problem is

with the integrity of the plan’s decision-making process, rather than that a claimant was

denied benefits to which he was clearly entitled.” Id. at 622; see also Kalish v. Liberty

/Liberty Life Assurance Co. of Boston, 419 F.3d 501, 513 (6th Cir. 2005) (concluding

that where claimants have clearly established their disability, the appropriate remedy is

an immediate award of benefits rather than a remand to consider previously ignored

evidence). As the Sixth Circuit has warned, “[p]lan administrators should not be given

two bites at the proverbial apple where the claimant is clearly entitled to disability

benefits.” Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 172 (6th Cir. 2007). Instead,

“{t]hey need to properly and fairly evaluate the claim the first time around; otherwise

they take the risk of not getting a second chance, except in cases where the adequacy of

claimant's proof is reasonably debatable.” Id.

Here, the record clearly establishes that Plaintiff was partially disabled as of

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January 16, 2017. Accordingly, he is entitled to disability benefits and a retroactive

award is warranted. See Haning v. Hartford Life & Accident Ins. Co., 140 F. Supp. 3d 654,

676 (S.D. Ohio 2015). Defendants also forfeited its right to reconsideration because it

did not request it. Id. (citing Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 581

F.3d 355, 372 n. 7 (6th Cir. 2009)).

Defendants argues that the period of disability at issue on the second claim is

from January 16, 2017 to January 28, 2017 because Plaintiff's employment was

terminated on January 27, 2017. (See Doc. 31 at PageID# 3929 (asserting Plan was

explicit in advising Plaintiff of the period under consideration) (citing Doc. 24-3 at

PageID# 2386).) Under the Plan, P&G reserves the right to discharge any employee at

any time and, if an employee is terminated for any reason, “all his or her rights or

interests in this Fund and all benefits under this Plan shall terminate at once.” (Doc. 25-

3 at PageID# 3842.) Plaintiff contends that, in the event the Court awards benefits, “he

would pursuant to P&G’s policies would again have to be considered an ‘employee’

and the termination of his employment would in that event be nullified.” (Doc. 32 at

PagelD# 3945, n. 5.) Plaintiff does not cite the relevant P&G policy or the authority that

would empower the Court to grant this extraordinary remedy. The Court therefore will

order the payment of partial disability benefits only from January 16, 2017 through

January 28, 2017.

CONCLUSION

For the reasons above, the Court DENIES Defendants’ Motion for Judgment on

the Administrative Record (Doc. 28) and GRANTS IN PART Plaintiff's Motion for

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Judgment on the Record (Doc. 29). Specifically, the Court upholds the denial of

Plaintiff's December 1, 2015 application for benefits but reverses the denial of Plaintiff's

January 27, 2017 application for benefits as arbitrary and capricious. The Court

ORDERS that Defendants pay to Plaintiff partial disability benefits for the period from

January 16, 2017 through January 28, 2017. This case shall be TERMINATED on the

Court's docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Moth, WMS

By:

JUDGE MATTHEW W. McFARLAND

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