Social Security statute, disability is defined in part as an
"inability to engage in any substantial gainful activity."
42 U.S.C. § 423(d)(1)(A), but the language is similar enough to
warrant an analysis using Social Security standards under
Motorola objects to such an analysis, arguing that it had
information unavailable to the Social Security Administration
and that Ms. Poulos had been rejected several times by Social
Security before she was approved. It does not, however, explain
what information it had or why that information was decisive;
and the previous rejection by Social Security does not override
the similarity of the Plan language to that of the Social
Security statute. Moreover, Motorola's additional information
might be a reason for the Social Security Administration to come
out differently, but I do not see how it could be a reason to
use a different analysis; likewise I do not see how Ms. Poulos'
early misfortunes at the agency could logically affect whether
the analysis is apposite.
Using the analysis in Ladd, Motorola's determination was
arbitrary and capricious. There the plaintiff was a 38 year old
customer service representative who had sustained nerve damage,
painful back injuries, and carpal tunnel syndrome. 148 F.3d at
754. She had been found totally disabled by her own physician
and by the defendant's physician, who, however, thought she
could work four hours a day provided that she did not have to
turn her head a lot. Id. at 755. Another physician and a
Social Security ALJ found she was totally disabled as well.
Id. The defendant there denied her claim, but the Seventh
Circuit found that this action was "arbitrary and even
irrational." Id. That court noted that: (1) Social Security
had found her to be disabled; (2) her condition had worsened;
(3) no one who examined the plaintiff believed that she was able
to work; and (4) the defendant based its decision in part on a
misunderstood suggestion that the plaintiff be allowed to work
on a trial basis.
Ms. Poulos' case presents analogous facts: (1') Social
Security has determined that she is disabled. (2') Her condition
has worsened from 1985, although it has been stable since 1991;
she suffers from degenerative arthritis. (3') Although
Motorola's examining physician, Dr. Vucicevic, did not find that
Ms. Poulos was disabled, the basis of his claim is what matters,
and it is quite similar to the basis of the opinion of the
Ladd defendant's examining physician. That doctor thought that
the plaintiff there could work four hours a day if she did not
have to move her neck much. Dr. Vucicevic thinks that Ms. Poulos
may be able do "light" or "sedentary" work that does not involve
much lifting. (4') Dr. Vucicevic's determination of no
disability, as he explained in his deposition, was meant to
convey the idea that Ms. Poulos could be given trial employment
to see whether there was anything she could do, and therefore
was misunderstood by Motorola.*fn2
The factual differences between Ladd and this case, apart
from those already discussed, point, in the main, in Ms. Poulos'
favor. These include that Ms. Poulos was 59 years old when
Motorola terminated her benefits, had been out of the workforce
for 13 years, spoke little English, and had been an unskilled
worker without highly marketable job skills. I may use the
Social Security regulations as guidance in interpreting Plan
language that is equivalent to the language of the Social
Security statute. Discussing nonbinding interpretative
regulations, the Seventh Circuit has
said that if I "find in the interpretations an analogy useful
in deciding the case before [me, I] may rely on the
interpretations as persuasive evidence [of] . . . legislative
. . . intent." Shaw v. Prentice Hall Computer Publishing,
Inc., 151 F.3d 640, 642 (7th Cir. 1998) (internal citations
omitted). The Social Security "grid" is not an interpretative
regulation, but neither are the Social Security standards
binding here. I may, however, use the grid as interpretative
guidance if I find helpful the analogies in the regulations,
which I do. I do not impose an inflexible set of bright line
standards, contrary to Motorola's objection, but only look for
guidance in view of the common sense standards for employability
set forth in those regulations.
The grid allows me to take into consideration Ms. Poulos' age.
A person who is 55 or over, severely impaired, and unable to do
"medium work," is unable to work unless she has "skills that can
be used in less demanding jobs which exist in significant
numbers in the national economy." 20 C.F.R. § 404.1563(d). Ms.
Poulos cannot do medium work, which would require lifting 50
pounds occasionally or 25 pounds frequently. Id. §
404.1567(c). Likewise I can take into account Ms. Poulos'
limited education, id. § 404.1564(b)(3), poor English language
skills, § 404.1564(b)(5), and lack of job skills, § 404.1568(a):
she was a manual laborer who had been out of the market for 13
years. In short, I can consider whether she is really
employable, which, as noted is the inquiry mandated by the
language of the Plan.
Was it "downright unreasonable" for Motorola to conclude that
a 59 year old woman in Ms. Poulos' physical shape and with her
limited skills and job history was employable at anything for
which she was qualified? In Ladd, the Seventh Circuit so held
in a case that involved facts that were in many ways better for
the defendant than this case presents — the plaintiff was much
younger, more skilled, better educated, fully competent in
English, and less long out of the work force than Ms. Poulos.
This offsets the consideration of the higher degree of consensus
in Ladd that the plaintiff was disabled. Motorola's
determination was unreasonable.
Its unreasonableness is highlighted by, though not dependent
upon, Dr. Vucicevic's explanation of his conclusions. Motorola
says that it determined that Ms. Poulos could do assembly line
work similar to what she had formerly done, minus some lifting.
But Dr. Vucicevic explains that he concluded that she might be
employable as a clerical worker, despite her never having done
such work and her poor English skills; and Motorola admits that
at most he concluded that her "ultimate functionality could only
be determined" after seeing what she could do on a trial basis.
The value to Motorola of his conclusion that she was not
disabled is therefore substantially diminished, and his was the
main opinion of an examining physician that she was not
Second, Ms. Poulos' physical capability is only part of the
inquiry. Even if Dr. Vucicevic's opinion letter is taken at face
value leaving out his further explanations about his actual
conclusions, and giving due weight to the nonexamining
physicians, the outcome is the same. The medical opinions go
only to Ms. Poulos' physical condition, the only thing that the
physicians are in fact qualified to analyze, since
they are not vocational experts. However, as explained, the Plan
language focuses on employability, of which physical capability
is only a part. There are at least four considerations that
matter: (1) physical ability; (2) age, (3) skills, and (4) job
history; and other factors also play a role. In relying
exclusively on Dr. Vucicevic's opinion and, to the extent that
it did so, on those of the other physicians, Motorola took into
account only (1), physical ability, and did not make the
holistic inquiry demanded by its own Plan language, which would
have required taking into consideration her age, skills, job
history, and other relevant factors. The determination,
therefore, was not reasonable.
I emphasize that this is true whether or not I interpret the
Plan language in light of the Social Security standards. The
Plan language itself rules out the reasonableness of a
determination of employability that looks only at one of the
several main factors commonsensically required for such a
determination even under deferential review. Motorola,
therefore, did not adequately explain why Ms. Poulos is
employable in any job for which she is qualified, and so its
determination was arbitrary and capricious.
Accordingly I DENY Motorola's motion for summary judgment and
GRANT Ms. Poulos' motion for summary judgment. Her benefits are
to be reinstated.