United States District Court, N.D. Illinois
May 5, 2004.
KARA BISMARK-THURBUSH, Plaintiff, V. METROPOLITAN LIFE/DISABILITY INSURANCE COMPANY, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Kara Bismark-Thurbush ("Bismark-Thurbush") has sued Metropolitan Life
Insurance Company ("MetLife")*fn1 in its capacity as claims fiduciary
and insurer for the Long Term Disability Plan ("Plan") established and
run by her former employer Deloitte & Touche ("Deloitte"). Although
her lawyer has chosen to frame her Complaint in two counts, one claiming
breach of contract and the other asserting the intentional infliction of
emotional distress, both of those contentions are predicated on the claim
that MetLife failed to live up to its obligations under the Employee
Retirement Income Security Act ("ERISA," 29 U.S.C. § 1 001-1191c*fn2)
when it made the decision to deny her long term disability benefits. MetLife has moved for summary judgment pursuant to Fed.R. Civ, P. 56
("Rule 56"), and both parties have (at least nominally) complied with
this District Court's LR 56.1.*fn3 Whether because of their joint
realization that the true gravamen of Bismark-Thurbush's lawsuit is
really grounded in ERISA or for some other unknown reason, both sides'
submissions have focused exclusively on that subject and the analysis
here will properly do the same. Because Bismark-Thurbush has not raised a
genuine issue of material fact to suggest that MetLife was arbitrary or
capricious when it reviewed her claim and made the decision to deny her
benefits, MetLife's motion is granted and this action is dismissed.
Rule 56 Standard
Every Rule 56 movant bears the burden of establishing the absence of
any genuine issue of material fact (Celotex Corp. v. Catrett, (
477 U.S. 317, 322-23 (1986)). For that purpose courts consider the
evidentiary record in the light most favorable to nonmovants and draw all
reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But
to avoid summary judgment a nonmovant "must produce more than a scintilla
of evidence to support his position" that a genuine issue of material
fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001))
and "must set forth specific facts that demonstrate a genuine issue of
triable fact" (id.). Ultimately summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant (Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
What follows is a summary of the facts viewed from the perspective
dictated by the just-stated principles. But in this instance the
obligation to do so is tempered by substantial limitations created by the
extent of Bismark-Thurbush's compliance (or noncompliance) with the
strictures of LR 56.1.
Bismark-Thurbush worked for Deloitte from August 1996 to December 1999
(M. St. ¶ 4; B. Resp. ¶ 4). During that time she was a participant in
the Plan (M. St. ¶ 5). Shortly after leaving Deloitte, Bismark-Thurbush
submitted a claim for benefits under the Plan (M. St. ¶ll), stating that
she had experienced several back injuries and a neck injury. Her claim
included a statement from her treating physician Dr. Daniel Hurley in
which he diagnosed her with both myofascial pain syndrome and a
cervical/thoracic spine disorder and opined that she was probably able to work three days per week for four hours per day for the next
three to six months (M. St. ¶¶ 1 2-13; R. 175).
As part of MetLife's initial evaluation of Bismark-Thurbush's claim
for benefits, a Case Management Specialist reviewed her file and
requested the medical records from her treating physicians (M. St.
¶¶ 1 4-15). MetLife then enlisted Nurse Consultant Sheila Clerkin
("Clerkin") to review Bismark-Thurbush's record and speak with her about
her claim (M. St. ¶¶ 1 6-17).
After conducting that review, MetLife informed Bismark-Thurbush in
June 2000 that it was denying her request for benefits (M. St. ¶ 20).
That denial both recited the evidence that made up the record and
concluded that even though the medical records may have supported
Bismark-Thurbush's diagnosis, they did not prevent her from performing
sedentary work and thus did not support her "Total Disability" as defined
by the Plan (R. 81-83).
MetLife's notice of that denial also informed Bismark-Thurbush that she
could appeal the determination and submit additional records as part of
that process (id.). Bismark-Thurbush took advantage of her right to
appeal, but she did not come forth with any new documentation or other
information (M. St. ¶¶ 2 l-22).
On appeal a MetLife Procedure Analyst determined that Bismark-Thurbush's medical records should be reviewed by an independent
physician and secured the services of Dr. Mark Moyer for that purpose (M.
St. ¶¶ 2 4-25). Dr. Moyer did not examine or interview Bismark-Thurbush,
but he reviewed all the medical records in her file (M. St. ¶ 27; B.
St. ¶ 2). As a result of his review he provided MetLife with a report
outlining the reviewed information and concluding that the medical
records did not "document the presence of physical impairments . . . that
would otherwise preclude a return to a sedentary job" (M. St. ¶¶ 2 8-29;
Based on that further review, MetLife issued a reconfirmation of its
denial of benefits to Bismark-Thurbush in January 2001 (M. St. ¶ 31).
Its letter traced the review process and explicitly determined (R.
While you were diagnosed with myofascial pain syndrome
which may be chronic and require additional treatment
in the future, the current medical records did not
document the presence of physical impairments that
would preclude sedentary work. In the absence of
medical/clinical findings that document the presence
of limitations or impairments that preclude you from
performing each of the material duties of your regular
job . . . we are upholding our prior decision to deny
your claim for benefits under the Plan.
In response to that final decision by MetLife, Bismark-Thurbush brought
this action pursuant to Section 1132(a)(1)(B).
ERISA Standard of Review
Under the Plan MetLife is vested explicitly with discretionary
authority to review claims submitted by Plan participants (M. St. ¶ 7):
Any interpretation or determination made pursuant
to such discretionary authority shall be given
full force and effect, unless it can be shown that
the determination was arbitrary and capricious.
Under that standard this Court examines MetLife's decision only to
determine whether the denial of benefits to Bismark-Thurbush was
"unreasonable, and not merely incorrect" (Herzberger v. Standard Ins.
Co., 205 F.3d 327
, 329 (7th Cir. 2000)). To that end, MetLife's
determination cannot be upset unless Bismark-Thurbush can create a
reasonable inference that it has not made an informed judgment and
articulated a sound explanation for its decision based on a reasonable
interpretation of the Plan language and the evidence presented to it
(Exbom v. Cent. States S.E. & S.W. Areas Health & Welfare Fund,
900 F.2d 1138
, 1142-43 (7th Cir. 1990)).
Application of Rule 56 and ERISA Standards
Under ERISA MetLife was required to give Bismark-Thurbush's request for
benefits a full and fair review (Reg. § 2560.503-1(h)(1)*fn4). That
concept means that at each step of the process MetLife had to consider
all the evidence before reaching a conclusion and also to apprise
Bismark-Thurbush of the evidence on which it was relying so that she
would have an adequate opportunity to explore the accuracy and
reliability of the evidence and seek review of the resultant decision (Halpin v. W.W.
Grainger, Inc., 962 F.2d 685, 689, 694 (7th Cir. 1992)). Here
Bismark-Thurbush's claim fails because she has not raised a genuine issue
of material fact to dispute MetLife's having lived up to its duty to have
given the claim such a full and fair review.*fn5
First, MetLife's original denial letter to Bismark-Thurbush was
required to use understandable language (i) to give specific reasons for
its decision, (ii) to refer to the Plan provisions on which its decision
was based, (iii) to describe what other information Bismark-Thurbush
would need to submit if she were to prove her claim and indicate why such
materials are needed, and (iv) to explain the review procedures available
to her (Reg. S2560.503-l(g)(1)(i) to (iv)). MetLife's June 2000 letter to
Bismark-Thurbush satisfied all of those requirements (R. 81-83). It quoted the Plan's definition of "Total Disability" at length,
explained what records it used in making its decision, told
Bismark-Thurbush about the review procedures available to her and alerted
her that she could submit other materials (R. 81-83).
MetLife might have provided more detail as to the exact basis for its
denial. For example, it could have mentioned that its decision was
primarily based on Clerkin's opinion that the restrictions suggested by
Dr. Hurley were not otherwise supported by the medical records (M. St.
¶ 18). Or perhaps it could have provided more specific guidance as to
particular materials that could have helped Bismark-Thurbush's claim,
rather than simply telling her that she could submit any additional
information as she saw fit (R. 81-83).
But such "might haves" do not alter the legal principle that MetLife
was neither required to give "the reasoning behind the reasons" nor
compelled to offer Bismark-Thurbush anything more than a blanket request
for more information (Militello v. Cent. States, S.E. & S.W. Areas
Pension Fund, 360 F.3d 681, 689 (7th Cir. 2004); Donato v. Metro. Life.
Ins. Co., 19 F.3d 375, 382 (7th Cir. 1994)). Because MetLife thus met the
demands of the regulations that defined what was necessary to allow
Bismark-Thurbush to pursue a meaningful review of its determination, it
satisfied its full and fair review obligation at that stage of the
process (Halpin, 962 F.2d at 690). Next, to satisfy its full and fair review obligation in announcing its
final denial to Bismark-Thurbush, MetLife had to (again in a manner
calculated to be understood by her) (1) set forth the specific reasons
for the determination, (2) refer to Plan language, (3) inform
Bismark-Thurbush of her entitlement to receive all relevant documents and
(4) explain her right to bring a claim under ERISA (Reg. §
2560.503-1(j)(1) to (4)). MetLife substantially complied with the
applicable regulations by directing Bismark-Thurbush back to its June 2000
decision letter and the reasoning and Plan language referred to there, by
reciting the medical evidence used to form its decision and by explaining
that its determination was based in large part on the opinion of an
independent medical consultant (R. 64-65; Halpin, 962 F.2d at 690).
It is entirely understandable, then, that Bismark-Thurbush's main
complaint about MetLife's final decision to deny her benefits does not
hinge on the quality of the information in its January 2001 letter to
her. Instead she focuses on the notion that MetLife's reliance on Dr.
Moyer's opinion in making its determination calls into question the
soundness of its reasoning and thus also raises doubts about its ultimate
decision (see Chalmers v. Quaker Qats Co., 61 F.3d 1340, 1344 (7th Cir.
Clearly MetLife's final denial draws heavily on Dr. Moyer's opinion
that the medical records did not suggest a physical impairment that would otherwise prevent Bismark-Thurbush from performing
a sedentary job (R. 64-67). Such reliance is neither unique or surprising
(Exbom, 900 F.2d at 1140). To the contrary, a plan fiduciary's placing
stock in the opinion of a well-informed independent expert is often
strong evidence of a thorough investigation that completely shields a
benefits determination from judicial reversal (Hightshue v. AIG Life
Ins. Co., 135 F.3d 1144, 1148 (7th Cir. 1998)).
Bismark-Thurbush's primary contention seems to be that MetLife was not
entitled to give credence to Dr. Moyer's opinion because he was neither
an appropriate expert nor truly independent. Neither of those objections
Little need be said as to Dr. Moyer's expertise. As the record reveals,
he was a board certified physician specializing in internal medicine and
infectious disease, and with significant experience in treating pain
disorders such as myofascial pain syndrome (M. St. ¶ 25; M. Am. St.
Bismark-Thurbush's questioning of Dr. Moyer's independence occupies far
more space (B. St. ¶¶ 2-24; B. Mem. 2-6, 10-11) and thus requires more
discussion here. In a nutshell, Bismark-Thurbush points out that
although Dr. Moyer testified at his deposition that his review of her
records was conducted pursuant to MetLife's regular contract with Network
Medical Review ("NMR"), an independent company with which Dr. Moyer was a salaried employee, in reality the review could not have been pursuant to
that contract because of a billing rate discrepancy between the standard
fee listed in the NMR contract and the rate actually charged for Dr.
Moyer'a services in Bismark-Thurbush's case (B. St. ¶¶ 3-4, 6-8).
Bismark-Thurbush has also correctly demonstrated that Dr. Moyer's review
of her file could not have been part of an independent consulting
agreement between Dr. Moyer and MetLife (a position MetLife took at one
point during the course of this litigation), because the contract MetLife
produced to explain that relationship was dated nearly a year after Dr.
Moyer conducted his review of Bismark-Thurbush's file (B. St. ¶¶ 1 3-18).
In those respects, at this point the parties are in agreement that the
actual relationship between Dr. Moyer and MetLife at the time he
conducted his review of Bismark-Thurbush's file stemmed neither from the
basic contract between NMR and MetLife nor from an independent contractor
agreement between Dr. Moyer and MetLife directly. Instead the
relationship was part of a supplemental agreement for onsite reviews that
somehow involved NMR, but for which NMR and MetLife did not have a
separate written contract (B. St. ¶¶ 20-21, 23).
But all of that is really beside the mark. Despite the vague
insinuations advanced by Bismark-Thurbush due to the lack of clarity as
to the details of Dr. Moyer's arrangement with MetLife at the time he reviewed Bismark-Thurbush's file, there is simply
no evidence suggesting that Dr. Moyer's compensation was linked to
whether he supported a finding of disability or indicating that MetLife
otherwise "jiggered the incentives" for Dr. Moyer such that he would be
inclined to skew his reports in its favor (Leipzig v. AIG Life Ins. Co.,
362 F.3d 406, 409 (7th Cir. 2004)). In the absence of any arguable
inference to that effect, nothing supports an argument that MetLife's
reliance on Dr. Moyer's report was impermissible (Militello, 360 F.3d at
Dr. Moyer's report clearly explains both the medical evidence he
reviewed in reaching his conclusion and the basis for his opinion that
the medical records did not support physical impairments that would
prevent Bismark-Thurbush from working at a sedentary job (R. 66-67). One
particular point on that score may merit special attention.
Bismark-Thurbush claims that Dr. Moyer's evaluation of her medical
records without examining her in. person is necessarily inadequate in the
context of myofascial pain syndrome a disease similar to fibromyalgia,
with the primary symptom of subjectively-experienced pain (B. St. ¶ 28;
B. Mem. 8; Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996)). That
might perhaps have persuasive force if Dr. Moyer had based his opinion on
dubious evidence such as stereotypes about myofascial pain syndrome or on no evidence at all (as in Hawkins v. First Union Corp.
Long-Term Disability Plan, 326 F.3d 914, 918-19 (7th Cir. 2003) and
Hillcock v. Cont'l Cas. Co., No. 02 C 5126, 2004 WL 434217, at *8 (N.D.
Ill. Mar. 2)). But Dr. Moyer explicitly noted that his opinion was
grounded in the fact that (diagnosis aside) the medical records made
available to him did not document the presence of any physical
impairments that would hinder Bismark-Thurbush from performing the duties
of a sedentary job (R. 66-67). That determination alone is enough to
substantiate his findings and to make MetLife's decision to include his
opinion as one ingredient in its evaluation a reasonable one.
All of the discussion to this point has shown conclusively why
Bismark-Thurbush's Count I claim, labeled as sounding in breach of
contract, fails: MetLife complied fully with its contractual obligations
under the Plan. And of course it necessarily follows that such full
compliance insulates MetLife from any potential liability on
Bismark-Thurbush's Count II claim for intentional infliction of emotional
distress, which charges MetLife with an allegedly intentional violation
of the Plan.*fn6
All of that being so, Bismark-Thurbush is wrong in urging that MetLife
ignored Dr. Hurley's opinion that she had some significant occupational limitations. Instead MetLife merely found that
on balance Dr. Hurley's opinion was less persuasive than the opinions of
Dr. Moyer and Clerkin (R. 3-4, 64-67, 175). That determination is
precisely the kind of judgment call that is best left to MetLife under the
arbitrary and capricious standard (Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 123 S.Ct. 1965, 1972 (2003); Patterson v.
Caterpillar, Inc., 70 F.3d 503, 505-06 (7th Cir. 1995)).
Because Bismark-Thurbush has not successfully created a reasonable
inference (1) that MetLife failed to make an informed decision about her
case that was rationally connected to the evidence presented and the text
of the Plan or (2) that MetLife did not clearly articulate that decision
to her, MetLife has satisfied both its fiduciary duty to Bismark-Thurbush
under the Plan and its obligation to justify its decision to this Court
according to the deferential arbitrary and capricious standard (Cozzie
v. Metro. Life Ins. Co., 140 F.3d 1104, 1107, 1109-10 (7th Cir. 1998)).
MetLife is entitled to a judgment as a matter of law. Its Rule 56 motion
is granted, and this action is dismissed.