The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Frank DiPietro, a former employee of Washington Group
International, Inc. (Washington), brought this action for recovery of
short-and long-term disability insurance benefits against the plan
administrator, defendant Prudential Insurance Company of America
(Prudential), pursuant to Section 502(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B). Now
before the court are plaintiff's motion for summary judgment, which is
granted, and defendant's cross-motion for summary judgment, which is
Plaintiff started working as a computer-aided design operator for
Washington on July 7, 2000. As a Washington employee he received
disability insurance pursuant to a plan underwritten by Prudential.
Prudential pays benefits for short-term disability after seven
consecutive days of disability and for long-term disability after 26
weeks of continuous disability. Under the terms of the plan a claimant is
disabled when Prudential determines that
you are unable to perform the material and substantial
duties of your regular occupation due to your sickness
or injury; and
you have a 20% or more loss in your indexed monthly
earnings due to that sickness or injury.
Plaintiff stopped working at Washington on March 5, 2002, and filed
a claim for short-term disability benefits nine days later on March 14.
DiPietro's claim was denied, as were his two subsequent appeals.
In 1952, at age five, plaintiff was diagnosed with polio. The disease
affected his left leg and right arm, and even after recovery his left leg
still experienced residual paralysis and weakness. Forty-eight years
later, on August 22, 2000, plaintiff joined a post-polio clinic
database. On a survey provided by the database, plaintiff stated that he
was diagnosed with post-polio syndrome in "about 1997." He identified his
symptoms as new weaknesses in muscles that were both affected and
unaffected by polio, pain in his muscles and joints, fatigue out of
proportion with his activity level, and an inability to perform activities
that were previously possible. On a followup questionnaire for the
database, dated August 8, 2001, plaintiff reported a change in his
symptoms since his last visit. He wrote that he was tired and exhausted,
had trouble sleeping and suffered front headaches.
During 2001, plaintiff sought treatment from his physician, Dr. Mario
Prete, for persistent headaches and some nausea and vomiting. At an
appointment on February 12, 2001, Dr. Prete noted tenderness by the
cervical muscles in the back of plaintiff's head, but did not record any
other abnormalities. The doctor prescribed medication for plaintiffs
headaches and counseled him as to gastroesophageal reflux disease. On
September 13, 2001, Dr. Prete assessed plaintiff as having "Persistent
neck pain . . . Headaches . . . Possible sleep apnea." On Dr. Prete's
recommendation, Dr. Glen Glista, a neurologist, examined plaintiff on
November 14, 2001, due to his recurrent headaches. Dr. Glista noted the
plaintiffs left leg caused by polio. The doctor prescribed medication for
plaintiffs headaches, but did not find any indication of a serious
Dr. Prete saw plaintiff again on December 20, 2001. In his notes, Dr.
Prete discussed plaintiffs history with polio. Plaintiff told Dr. Prete
that he thought polio was affecting him and requested a referral to a
polio specialist. Dr. Prete again observed tenderness at the base of
plaintiffs skull and assessed that he was probably suffering from tension
headaches and arthritis of the neck.
On January 24, 2002, Dr. James Sliwa, a post-polio syndrome
specialist, examined plaintiff at the Rehabilitation Institute of
Chicago. In his report, Dr. Sliwa related plaintiffs medical and social
history. He wrote that plaintiff worked for a computer drafting company
but would be unemployed as of March because his company was closing. The
report listed plaintiffs three primary medical complaints: headaches,
neck pain, and fatigue. The doctor found that plaintiff had "symptoms
compatible with postpolio syndrome" and recommended that he participate
in a sleep study and physical therapy. Plaintiff underwent a sleep study
that revealed he did not suffer from sleep apnea, ruling it out as the
cause of his fatigue. On February 7, 2002, during a followup visit, Dr.
Sliwa recorded plaintiffs "complaints of fatigue, decreasing functional
status, limited . . . ambulation because of fatigue," and diagnosed him
with post-polio syndrome. In a letter dated February 18, 2002, Dr. Sliwa
informed Prudential of plaintiffs diagnosis and the possibility that he
would not be able to work full-time during his treatment.
Plaintiff did not return to work at Washington after March 4, 2002.
Three days later plaintiff returned to see Dr. Sliwa. The doctor's
treatment notes from that appointment state plaintiffs "symptoms have
been getting worse over the past few years, particularly the fatigue
to the point where he would require naps during the day and wasn't
able to do as much activity as he was in the past, having difficulty
concentrating." Dr. Sliwa's physical examination revealed that plaintiffs
strength findings were consistent with the previous month's findings. The
doctor's assessment concluded that plaintiff was "significantly limited
by his fatigue." He also mentioned that he had discussed with plaintiff
the "possibility of therapy in the future. . . ." Following this
appointment, Dr. Sliwa submitted a second letter to Prudential on March
8, 2002, expressing his opinion that plaintiff was not capable of
full-time employment due to his worsening symptoms of post-polio
Plaintiff filed an application for short-term disability on March 14,
2002. On the attending physician statement submitted in support of the
application, Dr. James Sliwa diagnosed plaintiff with post-polio
syndrome. Dr. Sliwa stated that plaintiff's lower extremity was weak and
that he suffered from fatigue, "which interferes with all activity that
requires concentration." In response to the question, "What Job Category
best describes the claimant's functional abilities," Dr. Sliwa marked the
box, "Sedentary." He wrote in the margin next to his response, "Still a
fatigue problem." Along with this statement, plaintiff submitted Dr.
Sliwa's examination notes and letters. Prudential denied plaintiffs claim
on April 4, 2002. Plaintiff appealed the decision a week later,
submitting additional records from Dr. Sliwa and plaintiffs own written
statement. In May, plaintiff faxed Prudential information about
post-polio syndrome and letters from family and friends discussing their
observations of his condition.
Plaintiff began physical therapy at the Rehabilitation Institute of
Chicago on April 8, 2002, and continued through May 1, 2002. Plaintiff
did not believe that therapy was helping his symptoms, but Dr. Sliwa's
tests revealed slight improvements in the strength of his hips.
In his notes from May 2, 2002, Dr. Sliwa wrote that he would recommend to
plaintiffs primary care physician that plaintiff return to therapy. He
also suggested that plaintiff see a psychiatrist or seek out some other
form of treatment for depression.
On August 22, 2002, Prudential denied plaintiffs first appeal.
Plaintiff filed a second appeal on December 2, 2002, providing Prudential
with newly acquired information. After a fall that required treatment at
a hospital, plaintiff was re-examined by Dr. Sliwa on September 25,
2002. The doctor reported plaintiffs recurrent symptoms and observed
decreased tone in his legs and "changes" in his neck that were revealed
by X-ray. Dr. Sliwa recommended that plaintiff wear a soft cervical
collar to support his head and visit a psychiatrist. The doctor also
wrote an order for plaintiff to return to physical therapy, which he did
on October 22, ...