The opinion of the court was delivered by: CHARLES NORGLE, District Judge
The Parties have filed cross-motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the following reasons,
Defendant's Motion for Summary Judgment is GRANTED; Plaintiffs Motion for
Summary Judgment is DENIED.
Plaintiff Hugo Diaz worked as a computer programmer analyst for Bank
One in Chicago, Illinois. As a benefit of Diaz's employment with Bank
One, he was covered under a long-term disability policy ("LTD Plan")
underwritten by Defendant Prudential Insurance Company of America
("Prudential"). Generally, the LTD Plan provides disability benefits to
Bank One employees who are determined unable to perform the essential
duties of their regular occupations due to injury or illness. A. Relevant Medical Facts
In February of 2000, Diaz began experiencing pain in his lower back.
Initially, he underwent two epidural steroid injections, both of which
provided no significant improvement of his pain. As Diaz continued to
perform his duties with Bank One, he received three additional lumbar
epidural steroid injections with fluoroscopy*fn1 on November 8, 2000,
November 22, 2000, and June 13, 2001. These injections provided some
relief of Diaz's pain; however, he continued to require pain medication
after each treatment.
In January of 2002, Diaz ceased working and elected to have surgery on
his lower back. Specifically, Diaz opted to undergo a lumbar fusion
procedure which consisted of L5-S1 posterior lateral fusion with
instrumentation and iliac crest bone grafting. The surgery was
recommended by Howard An, M.D. ("Dr. An"), Diaz's treating physician,
after discovering an annular tear at L5-S1. Dr. An performed the surgery
on February 4, 2002.
Following the surgery, Diaz experienced varying levels of pain
throughout his recovery. At Diaz's February 22, 2002 post-operative
examination, Diaz reported no significant leg pain and ambulated well.
Additionally, his physical exam showed no neurologic deficit in the
bilateral lower extremities, and his x-rays showed satisfactory alignment
with all hardware appearing to be in place. Notwithstanding these
observations, Dr. An noted that Diaz continued to have significant back
pain following surgery despite the use of Durgesic patches and Norco. for
pain control. Dr. An also noted that pre-operatively, Diaz was taking 80
mg of OxyContin*fn2 three or four times a day.
On March 22, 2002, Dr. An noted that Diaz was much improved following
surgery; however, his medications now included Zanaflex, Norco, Kadian
and Neurontin. Dr. An also noted that Diaz had good strength in his
bilateral extremities and that his neurologic status remained intact.
Diaz's x-rays showed good alignment with no indication of hardware
movement. Dr. An concluded that Diaz was making satisfactory progress and
planned to re-examine Diaz in two months with the possibility of
considering his return to work.
On March 29, 2002, Diaz reported significant increased left groin pain,
increased right leg pain and sleeplessness. Diaz also reported the
sensation of hardware movement in his back. After Diaz requested a change
in pain medication, Dr. An discontinued Diaz's use of Norco. and
prescribed Lortab and Ambien for pain control. Diaz was then advised to
call Dr. An's office on April 1, 2002 to provide an update on his
On April 1, 2002, Diaz reported increased right leg numbness,
difficulty ambulating and increased anxiety. He also requested anxiety
medication, for which Dr. An prescribed Valium. Furthermore, in response
to Diaz's complaints of hardware movement, Dr. An reviewed x-rays taken
on April 5, 2002. He concluded that the fusion was consolidating and the
hardware was in place. Dr. An also expressed concern about the amount of
pain medication Diaz required and encouraged him to begin physical
therapy. On April 23, 2002, Diaz telephoned Dr. An's office to relate that he
really did not have a large component of pain at that time. Aside from
occasional achiness and soreness at the surgical site, he felt much
better and did not regret having the surgery. Diaz also related that he
continued to suffer from anxiety, depression and fear over losing his
job, indicating that he decided to see a psychologist to help with these
On April 30, 2002, Bank One requested that Dr. An complete a Health
Care Provider Medical Certification ("Certification") with respect to
Diaz's condition. The Certification requested clinical information to
support Diaz's extended time off work. Dr. An completed the Certification
on May 1, 2002 and returned it to Bank One. In the Certification, Dr. An
stated that he would evaluate Diaz on May 24, 2002 to determine whether he
can return to work.
Also on April 30, 2002, Diaz had his initial evaluation for physical
therapy at Athletico. Sports Medicine and Physical Therapy Center
("Athletico").*fn3 Physical Therapist Melissa Kidder reported that Diaz
had bilateral lower extremity pain, back pain, decreased range of motion
to the lower extremities, and weakness secondary to discogenic back pain.
Kidder also noted that Diaz was unable to walk more than two blocks
without pain. On a pain scale of 1/10, Diaz rated his back pain at a
level of 4-5, denying any feelings of numbness or tingling at that time.
In May and June of 2002, Diaz saw Dr. An on two occasions. During both
visits, Dr. An noted that Diaz's pain had improved from his preoperative
status. Additionally, Dr. An observed that Diaz had residual leg pain
going down the lower extremities with associated back pain on the left side. Dr. An also noted pain at the bone graft site, which he
expected to improve with time. Further, Dr. An stated that Diaz's
neurologic examination remained normal. After Diaz's June 4, 2002 visit,
Dr. An concluded that Diaz will need an additional one month of physical
therapy and is then expected to return to work with restrictions. Dr. An
also advised Diaz to decrease his use of narcotics at that time.
On June 18, 2002, Sandeep Amin, M.D. ("Dr. Amin") of the Rush Pain
Center ("Pain Center") provided an update on Diaz's progress to Dr. An.
Dr. Amin noted that Diaz's pain was constant, occasionally sharp and
awakens him from his sleep. Additionally, Dr. Amin opined that Diaz was
chronically dependant on his opiate medication and in need of
detoxification. Dr. Amin further opined ...