The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
GENA LEANNE WHILLOCK PLAINTIFF
v. CIVIL NO. 3:18-CV-3089
UNITED OF OMAHA LIFE INSURANCE
And JOHN AND JANE DOE 1-100 DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to the provisions of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. Plaintiff challenges the termination of
her benefits under her former employer Community Publishers, Inc.’s (CPI) Long-Term Disability
Plan (hereinafter “the Plan”). Plaintiff originally named as Defendants United of Omaha Life
Insurance Company (United), as the Insurer and Plan Administrator; CPI, as the Policy Holder;
and John and Jane Does 1-100. However, CPI was dismissed pursuant to the parties’ joint motion.
(Docs. 15, 16). The parties have submitted the administrative record (Doc. 17 - cited as AR) and
briefs (Docs. 20, 21) on the issues before the Court. The matter is now ripe for consideration. For
the reasons stated below, the undersigned recommends AFFIRMING the termination of Plaintiff’s
benefits.
DEFINITION OF DISABILITY UNDER THE PLAN
The Plan defines disability as:
(b) after the Elimination Period, You are:
1. prevented from performing at least one of the Material Duties of Your
Regular Occupation on a part-time or full-time basis; and
2. unable to generate Current Earnings which exceed 99% of Your Basic
Monthly Earnings due to that same Injury or Sickness.
After a Monthly Benefit has been paid for 2 years, Disability and Disabled
mean You are unable to perform all of the Material Duties of any Gainful
Occupation. . . .
Material Duties means the essential tasks, functions, and operations relating to
an occupation that cannot be reasonably omitted or modified. . . .
Regular Occupation means the occupation You are routinely performing when
Your Disability begins. Your regular occupation is not limited to Your specific
position held with the Policyholder, but will be considered to be a similar
position or activity based on job descriptions included in the most current
edition of the U.S. Department of Labor Dictionary of Occupational Titles
(DOT). We have the right to substitute or replace the DOT with another service
or other information that We determine to be of comparable purpose, with or
without notice. To determine Your regular occupation, We will look at Your
occupation as it is normally performed in the national economy, instead of how
work tasks are performed for a specific employer, at a specific location, or in a
specific area or region.
(AR 123-125).
SUMMARY OF PLAINTIFF’S CLAIM FOR LTD BENEFITS
AND TERMINATION OF BENEFITS
Plaintiff was employed by CPI as an Account Executive beginning on August 19, 2002.
(AR 82). Her last day of work was on August 15, 2014. (AR 82). On September 3, 2014, Plaintiff
initiated a claim for short-term disability benefits due to a diagnosis of transverse myelitis with
symptoms of neck pain, headache, and left arm paresthesias/pain. (AR 79-84). As a part of
Plaintiff’s short-term disability claim, an “HR/Business Manager” for CPI completed an
Employer’s Statement, wherein she described Plaintiff’s work as an Account Executive as “light”
meaning:
20 lbs. maximum lifting with frequent lift/carry up to ten pounds. A job is light if
less lifting is involved but significant walking/standing is done or if done mostly
sitting but requires push/pull on arm or leg controls.
(AR 82). Plaintiff’s major job duties were listed as “contacting customers for advertising, driving
to customers’ places of business, walking, sitting, computer work, phone calls.” (Id.).
On September 10, 2014, Plaintiff was awarded short-term disability benefits. (AR 75-76).
United notified Plaintiff on January 12, 2015, that she had been approved for long-term disability
(LTD) benefits, dating back to November 22, 2014. (AR 1264-1267). On July 11, 2016, United
notified Plaintiff that it was terminating her LTD benefits, as it had determined that Plaintiff no
longer met the initial twenty-four month definition of “Disabled” under the Plan, in that “the
medical documentation fails to substantiate a condition or conditions that continue to render you
Disabled from performing the Material Duties of your Regular Occupation.” (AR 964).
PLAINTIFF’S MEDICAL TREATMENT AND DIAGNOSTIC RECORDS
Dr. Richard Jung
Plaintiff’s primary treating physician was Dr. Richard Jung, a neurologist. Plaintiff saw
Dr. Jung initially on June 30, 2014, at which time he diagnosed her with transverse myelitis. 1 (AR
1321-1325). Dr. Jung authored an Attending Physician’s Statement (APS) in February of 2016,
1Transverse myelitis is an inflammation of both sides of one section of the spinal cord. This
neurological disorder often damages the insulating material covering nerve cell fibers (myelin).
Transverse myelitis interrupts the messages that the spinal cord nerves send throughout the body.
This can cause pain, muscle weakness, paralysis, sensory problems, or bladder and bowel
dysfunction. There are many different causes of transverse myelitis including infections and
immune system disorders that attack the body’s tissues. Treatment for transverse myelitis includes
medications and rehabilitative therapy. Most people with transverse myelitis recover at least
partially. See Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/transverse-
myelitis/symptoms-causes (last visited Feb. 25, 2020).
wherein he noted a diagnosis of neurosarcoidosis,2 with objective findings of cervical myelitis and
biopsy proven sarcoidosis. (AR 1051). Dr. Jung reported, “Aggressive neuro sarcoid lesion in
cervical spine contributes to considerable pain that is debilitating.” (Id.). Dr. Jung noted that
Plaintiff was undergoing monthly Remicade infusion treatments and he characterized Plaintiff’s
prognosis as “fair.” (Id.). Dr. Jung opined that in an eight-hour workday, Plaintiff could sit for
eight hours, stand for two hours, and walk for one hour. She had restrictions in lifting/carrying of
fifteen pounds. Dr. Jung reported no restrictions in repetitive hand movements. (Id.).
Plaintiff’s Imaging Results
The medical records showed numerous MRIs and other imaging ordered by Dr. Jung and
other treating physicians. The earliest cervical spine MRI of record was on May 28, 2014, showing
an abnormality within the upper to mid cervical spinal cord that exhibited altered signal intensity
and enhancement following contrast administration, with the exact etiology uncertain. (AR 592).
Plaintiff underwent additional imaging of her cervical spine on June 17, 2014 (showing
abnormalities), on July 11, 2014 (showing a differential diagnosis including transverse myelitis),
on September 26, 2014 (showing continued abnormalities), and on October 29, 2014 (revealing a
stable cervical cord lesion since 9/26/14, with progression since 5/28/14, the appearance, of which,
2Neurosarcoidosis is a manifestation of sarcoidosis in the nervous system. Sarcoidosis is a chronic
inflammatory disorder that typically occurs in adults between 20 and 40 years of age and primarily
affect the lungs, but can also impact almost every other organ and system in the body.
Neurosarcoidosis is characterized by inflammation and abnormal cell deposits in any part of the
nervous system - the brain, spinal cord, or peripheral nerves. It can appear in an acute, explosive
fashion or start as a slow chronic illness. The prognosis for patients with neurosarcoidosis varies.
Approximately two-thirds of those with the condition will recover completely; the remainder will
have a chronically progressing or on-and-off course of illness. See
https://www.ninds.nih.gov/Disorders/All-Disorders/Neurosarcoidosis-Information-Page (last
visited Feb. 25, 2020).
suggested either an infectious/inflammatory process such as neurosarcoidosis or demyelinating
disease), (AR 345, 346, 348-349, 918).
On January 14, 2015, a MRI of Plaintiff’s cervical spine showed improvement in the
cervical lesion. That MRI report specifically stated that:
The high signal, enhancing lesion involving the cervical spinal cord has decreased
markedly in size since 9/26/2014. The lesion was apparently secondary to
sarcoidosis, according to history. Resolution of mass effect. Mild residual
increased signal intensity and enhancement involving the spinal cord at C3-4,
dorsally and on the right.
No evidence of spinal canal stenosis or disc herniation in the cervical region.
(AR 350).
A follow-up MRI on May 12, 2015, continued to show improvement:
Stippled, linear areas of enhancement predominantly along the right dorsal aspect
of the spinal cord spanning the levels of C2-C3 to C4-C5, which has increased since
January 14, 2015, but markedly decreased since September 26, 2014. Enhancement
pattern appears intramedullary and probably leptomeningeal. Findings could
reflect neurosarcoidosis given patient’s history. Suggest follow-up examination to
resolution. No bone marrow edema pattern. No spinal canal or neural foraminal
stenosis. Low T1 marrow signal, which is nonspecific. Correlate clinically for
anemia or marrow replacement/proliferation.
(AR 351).
Lastly, an October 30, 2015 MRI of Plaintiff’s cervical spine showed:
Continued improvement in both T2 signal and the enhancement involving the
cervical cord. Today there is essentially complete resolution of the enhancement
in the right dorsolateral cord with almost complete resolution of the T2 signal
although some of this remains and there is now some concavity of the cord
suggestive of mild atrophy. More than likely the residual T2 signal suggest areas
of gliosis. When compared to the outside exam from 10/29/2014, the increased T2
signal within the central gray matter is no longer present. These findings all suggest
improvement in patient’s imaging.
(AR 353).
Mayo Clinic Treatment
Plaintiff was evaluated at the Mayo Clinic from October 29, 2014 through November 5,
2014 (AR 915-929), including an evaluation by a neurologist, Dr. Jan-Mendelt Tillema. Dr.
Tillema recommended a six-month course of high-dose steroids to treat the sarcoid lesion, stating
he was hopeful that this would reduce her pain. Dr. Tillema stated that “it would be helpful to
gradually get her off the narcotic pain medications” and increase Lyrica. (AR 923).
Dr. Joseph Mayus
Dr. Mayus, a rheumatologist, also treated Plaintiff for additional issues such as
fibromyalgia and osteoarthritis and upon referral from Dr. Jung for her history of sarcoidosis. Dr.
Mayus recommended treating Plaintiff with Remicade infusions and repeating an MRI scan in
three to four months. (AR 998). Dr. Mayus saw Plaintiff on February 12, 2016, and noted her
continued chronic pain, although not worse than before. (AR 367). Dr. Mayus referenced her
follow-up MRI showing significant improvement and near complete resolution of the enhancement
at the right dorsolateral cord and an unremarkable MRI of the thoracic spine. (AR 367). Plaintiff’s
examination showed that she had osteoarthritic change at the tarsal/metatarsal articulation and
prominent tender points; that she was able to stand and walk unassisted with a stable-looking gait;
that she was able to walk on heel and toe; and that she had 5/5 strength of the deltoids, biceps,
triceps. (AR 368). Her sarcoidosis with neurosarcoidosis were noted to be clinically and
radiographically stable. (AR 369).
Dr. William Ackerman and Dr. Christopher Mocek
Dr. William Ackerman and Dr. Christopher Mocek, pain management specialists, treated
Plaintiff for her chronic pain. Upon physical examination of Plaintiff in February of 2016, Dr.
Ackerman noted that Plaintiff had pain in her upper cervical, thoracic, and lumbar spines and had
worsening pain with flexion. (AR 1023-1024). Dr. Ackerman opined that Plaintiff had pathology
that warranted continued pharmacologic management. (AR 1023-1024).
Plaintiff also saw Dr. Mocek between April and July of 2016 for pain management of her
chronic neck, thoracic and lumbar area pain, arm numbness, and pain from fibromyalgia. Dr.
Mocek discussed options for pain control with Plaintiff, including a pain pump; however, further
evaluation revealed that Plaintiff was not a candidate for a pain pump due to the location of her
pain; her medications were adjusted instead. (AR 856, 859, 862-863, 865). On July 5, 2016,
Plaintiff reported that the medication prescribed by Dr. Mocek was working; however, when she
returned on July 26, 2016, Plaintiff described her neck pain as moderate to severe. (AR 702, 868).
UNITED’S TERMINATION OF BENEFITS DECISION
Nurse Jessica Hedges performed a review of Plaintiff’s medical records on June 10, 2016.
Nurse Hedges observed:
Claimant seen by rheumatology who indicated neurosarcoidosis and fibromyalgia.
Claimant on Remicade infusions every 8 weeks and tolerating fairly. MD
references repeat imaging of the cervical spine from October 2015 that notes near
resolution of previous enhancing lesions and resolution of increased signal gray
matter. Exams indicate tender points and some decreased shoulder motion but no
gait or station deficits. No strength deficits noted throughout.
(AR 974). Nurse Hedges concluded:
Based on current medical documentation, claimant should be able to lift, push, pull
and carry up to 20 lbs occasionally and less than this more frequently. Claimant
should be able to sit up to 8 hours and stand and/or walk up to a total of 8 hours in
an 8 hour workday with ability to strength [sic] and/or change positions as needed
for comfort or at least once every 30 minutes to one hour. Claimant should avoid
reaching or work at or above shoulder level. Claimant should avoid
constant/repetitive head turns. No evidence that claimant is unable to drive
personal vehicle but should avoid driving while under the influence of opioid
narcotics. Claimant might benefit from an ergonomic work station. Claimant
should avoid climbing ladders. Claimant might also benefit from light exercise
program and evaluation/treatment for any mental health concerns/issues.
. . .
Claimant does have other medical conditions of hypertension, anxiety/panic and
depression, chronic pain and fibromyalgia. These conditions may contribute to
overall functional status but do not appear to be causing any significant ongoing
impairment.
(AR 974-975).
Nurse Hedges summarized her review of Plaintiff’s medical records and her conclusions
in a letter to Dr. Jung dated June 3, 2016. She asked Dr. Jung to either acknowledge his agreement
with her assessment, or if he did not agree, to respond with symptoms, physical exam findings,
and diagnostic tests to support any restrictions and limitations. (AR 979). Dr. Jung did not
respond.
In a letter dated July 11, 2016, United notified Plaintiff that it was terminating her benefits
effective that date. (AR 289-95).
ADMINISTRATIVE APPEAL
Plaintiff’s Submissions
Plaintiff filed an administrative appeal and included a September 29, 2016 report from Dr.
Kevin Collins, a Board Certified Physical Medicine and Rehabilitation Physician, to whom Dr.
Mocek referred the Plaintiff. Dr. Collins noted that he did not have Plaintiff’s actual MRI reports,
but opined:
She has been treated with aggressive steroids and now Remicade. She is ongoing
with pain and she has large doses of pain medications, so would preclude her from
driving around the state for her job just on its own.
Patient is fully disabled in my medical opinion . . . with her history of
neurosarcoidosis, which is a progressively worsening systemic chronic
granulomatous disease and tends to affect almost any organ system. She will
continue to require aggressive management as it relates to such. I see no way she
could work her job and/or any other given the above-mentioned circumstances.
(AR 276-78).
Plaintiff also submitted an APS dated August 22, 2016, from Dr. Mayus, and an APS dated
October 21, 2016, from her primary care physician, Dr. Ronald Reese. (AR 281-84). Both doctors
indicated that Plaintiff could sit for four hours out of an eight-hour workday, stand for one hour,
walk for one hour, and had restrictions climbing, lifting, gripping, squatting, kneeling, bending,
driving/operating motorized equipment, etc. Both doctors stated that they did not expect Plaintiff’s
condition to improve, with Dr. Mayus noting that “there is potential for neurologic deterioration if
sarcoidosis flares.” (AR 281-84).
United’s Independent Reviews
United obtained an independent medical review from Dr. Jacob Yacov Kogan, a board
certified neurologist. Dr. Kogan reviewed Plaintiff’s medical records and, in a report dated
January 11, 2017, found that the diagnoses supported by the records included “sarcoidosis
confirmed by lymph node biopsy and cervical myelitis confirmed by contrast enhancing lesions
on MRI. The above evidence combines to support the diagnosis of neurosarcoidosis.” (AR 248).
Dr. Kogan opined that Plaintiff had no restrictions or limitations from a neurological perspective
as of July 11, 2016, to the date of his report. Dr. Kogan stated the following rationale:
[T]he claimant had resolution of active disease/inflammation at the cervical spinal
cord on MRI from April 2016[,] given resolution of enhancement, no increase in
the size of the lesions, no new lesion, and impression of gliosis on the radiological
report. There were no corresponding neurological deficits that would limit function
or that would be referred to a cervical myelopathy. Specially, Dr. Jung and Dr.
Mayus document no long tract signs. On 4/1/16[,] Dr. Jung documents normal
strength, normal tone without spasticity, normal reflexes without hyperflexia and
normal gait. There is only a patchy type sensory loss to pin prick of the R upper
extremity without a sensory level. On 8/8/16[,] Dr. Mayus documents “stable
looking walk, able to climb on and off the table,” 5/5 strength in the upper
extremities, no ataxia, and no hyperreflexia. Thus, from a neurological perspective,
the claimant had resolution of active disease/inflammation at the cervical spinal
cord by imaging and no clinical signs of myelopathy that would limit function. Her
cervical spine pain is multifactorial and may have been in part initially related to
active myelitis. However, given significant improvement of the myelitis, cervical
spine pain preceding her diagnosis by 3 years in 2011, and multiple “exquisite
tender points” documented by Dr. Mayus in 8/8/16, the etiology of the neck pain is
likely musculoskeletal in nature related to her fibromyalgia (a similar opinion is
expressed by Dr. Mayus in 8/13/2015 . . . ) with potential exacerbation from opioid
induced hyperalgesia given long term opiate use and psychological factors given
her history of depression and anxiety. Discussion of dysfunction, restriction and
limitation related to fibromyalgia, opioid induced hyperalgesia and
depression/anxiety is referred to the appropriate experts.
(AR 249).
United also obtained an independent medical review from Dr. Julia Y. Ash, a board
certified rheumatologist. (AR 221-29). Dr. Ash reviewed Plaintiff’s medical records and, in a
report dated February 8, 2017, she gave the following medical analysis:
Medical record documents self-reported complaints of neck pain and joint pain of
such severity as to interfere with sleep, moderate-to-severe degree and occasionally
unbearable, in most positions. Medical record, however, provides no clinical or
radiographic support for such severity of pain. Rheumatologic evaluation
documents no specific neck abnormality with the exception of muscular tenderness.
Dr. Collins’s exam documents full neck range of motion. Multiple cervical CT and
MRIs obtained for evaluation of neurosarcoidosis document no vertebral or soft
tissue abnormalities, no disc herniation, no clinically significant degenerative disc
disease and no spinal or foraminal narrowing or stenosis. Severe neck pain is self-
reported only without clinical or radiographic support. Pain etiology is not
established and severe pain is not supported by available medical documentation.
Cervical myelitis secondary to neurosarcoidosis, even when active, does not
typically result in neck pain of such degree as reported in the medical record. At
the time of complaints, the inflammatory cervical lesion has mostly resolved with
Infliximab therapy as demonstrated on 4/28/2016 cervical spine MRI report. This
MRI report also documents absence of musculoskeletal etiology to support neck
pain. It documents absence of spondylolisthesis, maintained vertebral body height
and disc space, absence of focal destructive lesion, absence of soft tissue or
paraspinal thickening of collection. No spinal canal or neural foraminal stenosis is
documented. 4/28/2016 thoracic spine MRI is also documented as normal. Due to
complaints of neck and diffuse pain without alternative etiology, Dr. Mayus
mentions diagnosis of fibromyalgia as a diagnosis of exclusion. Treatment with
Cymbalta . . . is documented in the record. Fibromyalgia on treatment supports
restrictions and limitations. Fibromyalgia, as documented in the medical record,
does not support loss of function. Physical examination is consistently documented
as normal . . . .
(AR 225-26).
Dr. Ash concluded that the restrictions and limitations outlined by Plaintiff’s treating
physicians were mainly based on self-reported complaints and were not supported by documented
physical examinations, musculoskeletal examinations, or radiographic data. Dr. Ash believed that
the chronic use of opioids should be discontinued by the Plaintiff, as such use was based on
Plaintiff’s subjective complaints and was not supported by any objective etiology. Dr. Ash
observed that Plaintiff’s neurosarcoidosis was in remission on treatment and her fibromyalgia was
being treated with FDA-approved therapy. Dr. Ash opined that Plaintiff could sit up to eight hours
per day with five-minute breaks every two hours to accommodate stretching for her fibromyalgia-
associated stiffness; stand for up to four hours per day, one hour at a time; walk three hours per
day, one hour at a time; occasionally lift and carry up to 20 pounds; frequently lift and carry up to
10 pounds; frequently reach, handle, finger, etc. without restriction; frequently drive; occasionally
climb stairs; and never crawl or kneel. (AR 227).
United’s Appeal Decision
United upheld its previous decision by letter dated February 27, 2017. (AR 230-36).
United discussed the findings of the independent medical reviews of Dr. Kogan and Dr. Ash, as
well as the lack of any objective findings from Plaintiff’s treating physicians, Dr. Jung and Dr.
Mayus. United concluded:
The clinical records do not support any functional and/or cognitive impairment that
would preclude you from performing the material duties of your regular occupation
or any gainful occupation. Fibromyalgia is a manageable condition . . .
Despite your complaints of pain, the physical examinations have noted preserved
function with resolution of active sarcoidosis/inflammation and without
neurological deficit or compromise in muscle strength.
While you have some deficits that would preclude you from performing work in a
medium or heavy capacity, the records support you would be able to perform work
as an Account Executive as well as other sedentary-to-light physical demand
occupations.
(AR 234).
DISCUSSION
A. Standard of Review
ERISA affords a plan beneficiary the right to judicial review of a benefits determination.
See 29 U.S.C. § 1132(a)(1)(B). The Court reviews an administrator’s decision de novo unless the
plan grants the administrator discretionary authority. See Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). United concedes that the appropriate standard of review is de novo in
the present case, as the Plan does not contain a discretionary review clause.
B. The Termination of Plaintiff’s Benefits
In the absence of a significant change in the medical information available, an ERISA
administrator’s previous payment of benefits is a circumstance that weighs against the propriety
of an insurer’s decision to discontinue the benefits. See McOsker v. Paul Revere Life Ins. Co.,
279 F.3d 586, 589 (8th Cir. 2001). The undersigned agrees with United that the information
available to it changed significantly between the time it granted Plaintiff long-term disability
benefits on November 22, 2014, to when it discontinued those benefits on July 11, 2016. United’s
initial grant of benefits was based on the diagnosis of neurosarcoidosis manifested by transverse
myelitis, with a neurosarcoid lesion in Plaintiff’s cervical spine that caused her considerable pain.
After treatment with steroids and Remicade, however, the medical records document essentially
complete resolution of the lesion.
Dr. Kogan, a board certified neurologist who conducted an independent medical review of
Plaintiff’s medical records, found that Plaintiff had no restrictions or limitations from a
neurological perspective as of July 11, 2016. Dr. Kogan explained that Plaintiff’s treating
physicians, Dr. Jung and Dr. Mayus, documented no long tract signs, normal tone without
spasticity, normal reflexes without hyperflexia, normal gait, able to climb on and off the table, 5/5
strength in the upper extremities, no ataxia, and no hyperreflexia. Dr. Kogan concluded, “Thus,
from a neurological perspective, the claimant had resolution of active disease/inflammation at the
cervical spinal cord by imaging and no clinical sings of myelopathy that would limit function.”
(AR 249).
Dr. Ash, a board certified rheumatologist who conducted an independent medical review
of Plaintiff’s medical records, observed that Plaintiff’s neurosarcoidosis was in remission and her
fibromyalgia was being treated with Cymbalta. Dr. Ash noted that Plaintiff had no specific neck
abnormality with the exception of muscular tenderness; multiple cervical CT and MRIs
documented no vertebral or soft tissue abnormalities, no disc narrowing or stenosis, no
spondylolisthesis, maintained vertebral body height and disc space, no focal destructive lesion,
and no soft tissue or paraspinal thickening. Dr. Ash observed that Plaintiff’s physical examinations
were consistently documented as normal. Dr. Ash concluded that the restrictions outlined by
Plaintiff’s treating physicians were mainly based on self-reported complaints of pain and were not
supported by documented physical examinations, musculoskeletal examinations, or radiographic
data. Dr. Ash also believed Plaintiff should discontinue the chronic use of opioids.
Without objective medical data, United appropriately relied on the independent reviews of
Dr. Kogan and Dr. Ash to determine that Plaintiff’s benefits should be discontinued. United had
no obligation to defer to the opinions of Plaintiff’s treating physicians, which were primarily based
on Plaintiff’s subjective complaints of pain. See Black & Decker Disability Plan v. Nord, 538
U.S. 822, 825 (2003); Cooper v. Metropolitan Life Ins. Co., 862 F.3d 654, 662 (8th Cir. 2017). It
is also noteworthy that Dr. Jung did not respond when asked to either acknowledge his agreement
with United’s assessment of Plaintiff’s work abilities or to explain symptoms, physical exam
findings, and diagnostic tests that supported further restrictions and limitations. Cf. Pralutsky v.
Metro Life Ins. Co., 435 F.3d 833, 841 (8th Cir.) (finding no abuse of discretion when there was
no objective proof of disabling fibromyalgia in a treating physician's letter that merely repeated
the participant's subjective complaints of pain and fatigue and specifically noting the plan’s
repeated requests for objective evidence), cert. denied, 549 U.S. 887 (2006).
Plaintiff argues that United failed to apply the correct definition of disability. Plaintiff
states that the Plan defines disability as being unable to perform at least one of the material duties
of “your Regular Job” and United, in its initial denial and final denial, used the term “Regular
Occupation.” (Doc. 20 at pgs. 17-18). Plaintiff is incorrect. The Plan definition uses the term
“Regular Occupation” (AR 123), as correctly set out in United’s decisions.
Plaintiff next argues that United never outlined what the material duties of Plaintiff’s
regular job were and instead only relied on the physical requirements of a light demand occupation.
The undersigned sees no merit to Plaintiff’s argument. In an Employer’s Statement, Plaintiff’s
position as an Account Executive was described as light work, which was defined as “20 lbs.
maximum lifting with frequent lift/carry up to ten pounds. A job is light if less lifting is involved
but significant walking/standing is done or if done mostly sitting but requires push/pull on arm or
leg controls.” (AR 82). Further, Plaintiff’s major job duties were listed as “contacting customers
for advertising, driving to customers’ places of business, walking, sitting, computer work, phone
calls.” (Id.).
Plaintiff further argues that United failed to consider whether narcotic use prevented her
from driving to see customers, whether Plaintiff’s pain and grip loss impaired her ability to write
and type for extended periods of time, and whether her vision changes restricted her ability to use
a computer. Plaintiff points to no objective medical evidence to support her claim that vision
changes and grip loss restrict her ability to type, write or use a computer. Plaintiff likewise points
to no objective medical evidence that supports the chronic use of narcotics. As noted above, Dr.
Ash, the reviewing neurologist, believed the chronic use of opioids should be discontinued because
such use was not supported by any objective etiology. Dr. Tillema, the neurologist who evaluated
Plaintiff at the Mayo Clinic, also believed that Plaintiff should gradually get off narcotic pain
medications. Thus, narcotic use cannot objectively and legitimately be said to have rendered
Plaintiff unable to perform her work duties.
Plaintiff next cites to 29 C.F.R. § 2560.503-1(h)(3)(iii) and argues that United “failed to
consult with medical professionals appropriate to provide a medical judgment in the first denial.”
(Doc. 20 at pg. 22). The regulation to which Plaintiff cites provides that “in deciding an appeal
of any adverse benefit determination that is based in whole or in part on a medical judgment . . .
the appropriate named fiduciary shall consult with a health care professional who has appropriate
training and experience in the field of medicine involved in the medical judgment.” 29 C.F.R. §
2560.503-1(h)(3)(iii) (emphasis added). Regardless of the basis for the initial termination of
Plaintiff’s benefits, United complied with the above regulation in deciding Plaintiff’s appeal, as
United consulted with and had independent medical reviews conducted by both a neurologist and
a rheumatologist. The undersigned, therefore, sees no merit to Plaintiff’s argument.
Finally, Plaintiff argues that the Court should consider the fact that the Social Security
Administration (“SSA”) determined that Plaintiff was disabled as of August 31, 2014. (AR 172-
80). It is well-settled in the Eighth Circuit that an ERISA plan administrator is not bound by SSA
disability determinations. See Prezioso v. Prudential Ins. Co. of Am., 748 F.3d 797, 806 (8th Cir.
2014); Farfalla v. Mutual of Omaha Ins. Co., 324 F.3d 971, 975 (8th Cir.), cert. denied, 540 U.S.
875 (2003). The SSA determination was based on deference it accorded to Plaintiff’s treating
physicians, whose findings were, as noted above, primarily based on Plaintiff’s subjective
complaints and not objective medical evidence. Further, the SSA did not have before it the two
independent medical reviews conducted by United.
CONCLUSION
Based on the foregoing, the undersigned finds that United’s termination of Plaintiff’s long-
term disability benefits was supported by the evidence and the decision was made after careful and
thorough review, while comporting with ERISA and the clear language of the Plan. The
undersigned, therefore, recommends AFFIRMING the decision to terminate benefits and
DISMISSING this case WITH PREJUDICE.
The parties have fourteen days from receipt of this Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
Dated this 21st day of April 2020.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE