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J. Kevin Garvey v. Piper Rudnick Llp Long Term Disability Insurance Plan

March 30, 2012


The opinion of the court was delivered by: Judge Feinerman


J. Kevin Garvey, a former partner at the law firm now known as DLA Piper LLP, applied for long-term disability benefits from the Piper Rudnick LLP Long Term Disability Insurance Plan. Standard Insurance Company, the Plan's insurer and claims administrator, denied the application, and Garvey sued the Plan under § 502(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), to challenge the denial. After the court held that Standard's denial is subject to the deferential standard of review, 2011 WL 1103834 (N.D. Ill. Mar. 25, 2011), the parties cross-moved for summary judgment. The Plan's motion is granted and Garvey's motion is denied.


The following facts are undisputed. Garvey was a partner in the law firm's real estate practice for many years. On March 1, 2004, he began working part-time and collecting short-term disability benefits from the law firm's short-term disability plan; the law firm itself funded the short-term plan and had the discretionary authority to award benefits. Garvey retired one year later, on March 1, 2005. Shortly before retiring, Garvey applied to the Plan for long-term disability benefits effective on his anticipated retirement date. The Plan was funded through a group long-term disability insurance policy issued by Standard. Standard also served as the Plan's claims administrator and had discretionary authority to determine a participant's entitlement to benefits. Doc. 85-6 at 49; Doc. 168 at ¶ 6.

Plan documents provide that "[y]ou are Disabled from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of your Own Occupation." Doc. 85-6 at 128; Doc. 162 at ¶ 8; Doc. 168 at ¶ 3. The terms "Own Occupation," "Material Duties," and "Mental Disorder" are defined as follows:

Own Occupation means any employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as your regular and ordinary employment with the Employer. Your Own Occupation is not limited to your job with your Employer. Material Duties means the essential tasks, functions, and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation.

Mental Disorder means any mental, emotional, behavioral, psychological, personality, cognitive, mood or stress-related abnormality, disorder, disturbance, dysfunction or syndrome, regardless of cause, including any biological or biochemical disorder or imbalance of the brain. Mental Disorder includes, but is not limited to, bipolar affective disorder, organic brain syndrome, schizophrenia, psychotic illness, manic depressive illness, depression and depressive disorders, or anxiety and anxiety disorders.

Doc. 85-6 at 128, 136; Doc. 162 at ¶ 8; Doc. 168 at ¶¶ 3-4. To be eligible for long-term disability benefits, a claimant had to be disabled for one year. Doc. 85-6 at 125, 128; Doc. 162 at ¶¶ 8-9; Doc. 168 at ¶ 4.

Garvey's application claimed that he had become disabled on March 1, 2004 due to mental disabilities (stress and anxiety) and physical disabilities (a herniated disc in his back, arthritis in his fingers, and elbow problems), all of which caused him "constant pain and anxiety." Doc. 85-2 at 120; Doc. 162 at ¶ 17; Doc. 168 at ¶ 10. Garvey asserted that the disabilities were caused by physical deterioration and the need to take care of his severely disabled adult son. Doc. 85-2 at 120; Doc. 168 at ¶ 10. Garvey's application was accompanied by Attending Physician's Statements and medical records from Garvey's physicians-a psychiatrist, Dr. Howard Herman; two orthopaedic surgeons, Dr. Michael Haak and Dr. Brian Hartigan; and an internist, Dr. James Miller. (An Attending Physician's Statement is a form that insurers like Standard prepare and that a claimant's physician(s) complete for submission with the claimant's application for benefits. See Black v. Long Term Disability Ins., 582 F.3d 738, 742 (7th Cir. 2009); Darst v. Interstate Brands Corp., 512 F.3d 903, 906 (7th Cir. 2008).) The application also was accompanied by medical records from Garvey's cardiologist, Dr. Stuart W. Rosenbush. The law firm provided Standard with this description of Garvey's occupation:

Mr. Garvey is a real estate practitioner and performs various activities in connection with real estate acquisitions, dispositions and commercial lease transactions. These activities include document preparation and negotiation, due diligence and real estate closings. He also undertakes client development and consultation functions as well as training and continuing legal education activities.

Doc. 85-5 at 97; Doc. 162 at ¶ 36.

Garvey first saw Dr. Herman, his psychiatrist, on September 21, 2004, over six months after he claims to have become disabled. Doc. 168 at ¶ 18. Garvey complained of stress, sleeplessness, decreased concentration and work performance, lost drive at work, and decreased appetite and weight loss. Doc. 85-5 at 20-22; Doc. 168 at ¶ 18. Garvey next saw Dr. Herman on October 12, 2004; the session notes from that appointment reflect that Garvey was taking Ambien, that he still suffered from sleeplessness, and that the need to take care of his severely disabled son was a source of stress. Dr. Herman diagnosed Garvey with "Anxiety Disorder with mixed features" and prescribed an antidepressant. Doc. 85-2 at 172; Doc. 168 at ¶ 19. The session notes from the next appointment, which took place on November 5, 2004, state that Garvey had stopped taking the antidepressant because he found it intolerable, that he continued to take Ambien, that his mood was "stable, calm," and that his condition was "improved." Doc. 85-2 at 171; Doc. 168 at ¶ 20. Dr. Herman's session notes from January 26, 2005, state that Garvey was "calm, stable," that he was sleeping fine with Ambien, and that his "Anxiety NOS" was "controlled." Doc. 85-2 at 170; Doc. 168 at ¶ 21.

In his Attending Physician's Statement, which is dated November 30, 2004, Dr. Herman diagnosed Garvey with "anxiety not otherwise specified" ("anxiety NOS") with a "good" prognosis. Doc. 85-5 at 19; Doc. 162 at ¶ 25; Doc. 168 at ¶ 11. The Attending Physician's Statement states that although Garvey's condition was "improved," he suffered from a "high degree of anxiety/stress with poor concentration and low energy impair work functionality" and would never be able to return to work. Ibid.

Dr. Haak treated Garvey's back condition. On July 31, 2003, Dr. Haak diagnosed Garvey with lumbar degenerative disc disease and lumbar radiculopathy, and prescribed "conservative care," including physical therapy, injection therapy, chiropractic care, massage therapy, and prescription pain medication (Vioxx). Doc. 85-4 at 74; Doc. 168 at ¶ 28. At a follow-up examination on August 21, 2003, Dr. Haak found Garvey to be "significantly better," with the pain "75% improved," and opined that Garvey's condition should resolve itself with conservative care. Doc. 85-5 at 73; Doc. 168 at ¶ 29. On October 19, 2004, Garvey was evaluated by a physical therapist for low back pain, and the therapist prescribed a physical therapy regimen.

Doc. 85-4 at 70; Doc. 168 at ¶ 30. On December 9, 2004, Garvey again saw Dr. Haak for back pain, and Dr. Haak prescribed conservative care and gave Garvey samples of prescription pain medication. Doc. 85-4 at 67-68; Doc. 168 at ¶ 31.

In his Attending Physician's Statement, which is dated December 22, 2004, Dr. Haak diagnosed Garvey with lumbosacral disc degeneration, lumbar disc displacement, and lumbosacral neuritis. Doc. 85-5 at 15; Doc. 162 at ¶ 27; Doc. 168 at ¶ 12. The Attending Physician's Statement describes Garvey's physical limitations as "difficulty sitting for long periods, difficulty with movement and stiffness," but he does not place any duration limits for sitting, standing, or walking. Doc. 85-5 at 15; Doc. 168 at ¶ 12. Dr. Haak left blank the entries on the ...

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