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Krupp v. Liberty Life Assur. Co. of Boston

United States District Court, N.D. Illinois, Eastern Division

March 25, 2013

AMY KRUPP, Plaintiff,

Page 909

For Amy O Krupp, Plaintiff: Mark D. DeBofsky, LEAD ATTORNEY, Marie E. Casciari, Daley, Debofsky & Bryant, Chicago, IL.

For Liberty Life Assurance Company of Boston, McGraw-Hill Companies Group Long Term Disability Plan, Defendants: Jason Michael Kuzniar, LEAD ATTORNEY, Cinthia Granados Motley, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Chicago, IL.


Page 910

MATTHEW F. KENNELLY, United States District Judge.


Amy Krupp filed suit against Liberty Life Assurance Company of Boston pursuant to section 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132 (ERISA), seeking recovery of long-term disability benefits and a declaratory judgment that she is entitled to ongoing benefits. Krupp and Liberty Life have filed cross-motions for summary judgment. For the reasons stated below, the Court grants Krupp's motion for summary judgment, denies Liberty Life's motion for summary judgment, and remands the case to the plan administrator.


Krupp worked as a design director for McGraw-Hill Companies, Inc. from September 2002 through November 2008. Through this employment, she participated in a group long-term disability insurance plan underwritten and administered by Liberty Life.

Before and throughout her employment at McGraw-Hill, Krupp experienced a variety of medical problems. She began experiencing severe back and neck pain and headaches in 2001. Her symptoms persisted, and in June 2002, she underwent a posterior cervical decompression and laminectomy from C6 to T1. In September 2003, Krupp underwent a Chiari malformation repair and decompression. These surgeries provided little relief, and her symptoms soon returned. In February 2006, after conducting another exam and reviewing her MRI scans dating back several years, Krupp's treating neurosurgeon Dr. Dan Heffez confirmed Krupp's diagnosis of cervical stenosis and myelopathy at C4-5, C5-6, and C6-7, and he concluded that she needed to undergo a third operation.

Page 911

On March 16, 2006, Krupp underwent another posterior cervical decompression and laminectomy from C3 to T1.

Krupp's third surgery did not resolve her medical problems. X-rays taken of her cervical spine throughout 2006 and 2007 revealed anterolisthesis of C3 and C4. Dr. Heffez further documented in 2007 that Krupp continued experiencing pain at the back of her head, burning down her spine, muscle spasms, tightness, dizziness, nausea, constant weakness, decreased range of neck motion, and shortness of breath. Krupp also found it difficult " to open things such as paper clamps." According to Liberty Life's records, Dr. Heffez told Krupp that her " myelopathy cannot be erased completely" and that it " is a chronic condition." Admin. R. at LM660-61.

Because Krupp's pain persisted, she sought the care of pain specialist Dr. Ira Goodman. Between September 2007 and May 2008, Dr. Goodman treated Krupp for both neck and lower back pain and radiculopathy, in addition to diagnoses of complex regional pain syndrome and meralgia paresthetica. Krupp's reported pain intensity, on a scale of ten, ranged from nine to ten at its worst and five to eight on average. Her total disability score ranged from thirty-nine to fifty-three on a scale of one hundred, signifying severe disability due to pain. In an attempt to manage her pain, Krupp was prescribed a variety of powerful drugs, including Vicodin, Flexeril, Lidoderm, Neurontin, Cymbalta, Opana, and fentanyl. She also received four right lumbar paravertebral sympathetic nerve blocks.

In 2008, an MRI of Krupp's cervical spine revealed postsurgical changes and hemangiomas at C4. Other tests performed at the request of Dr. Heffez revealed a slowing of nerve impulses within the central somatosensory pathway to the upper and lower extremity and within the brainstem auditory pathway. Thus on August 2, 2008, Krupp underwent her fourth surgery, consisting of a re-exploration and inspection of her spinal fusion, C2 decompression and laminectomy, and revision of the C3 instrumentation.

Krupp ceased working on November 17, 2008 and applied for short-term disability benefits under the disability insurance plan. Liberty Life approved her claim and paid her benefits beginning November 24, 2008. During this time, Krupp was re-evaluated by Dr. Benjamin Nager, her neurologist since 2001. On November 28, 2008, Dr. Nager noted that Krupp was experiencing numbness of the head, face, gums, tongue, legs, and thighs, with symptoms being worse on the right side of her body. He also stated that she was having trouble speaking, bowel and bladder dysfunction characterized by diarrhea and frequent urination with occasional urinary incontinence, frequent dizzy spells, difficulty walking, vomiting as a result of increased movement, and general weakness. Dr. Nager noted that Krupp displayed " a Babinski sign on the left side," that her gait was unsteady, and that she suffered from a loss of sensation. Id. at LM1165. He also wrote that Krupp was " not doing well," and that he told her that he " would like to just start over." Id.

That same day, upon Dr. Nager's recommendation, Krupp underwent MRI scans of her brain, cervical spine, and thoracic spine. The brain scan revealed two minute foci of altered signal in the white matter deep in the right frontal lobe that were nonspecific and likely small foci of gliosis. The spinal scans revealed hemangiomas at C4, T4, T8, and T10. At a follow-up visit on December 5, 2008, Dr. Nager reported, " At this point in time, my opinion is that [Krupp] has chronic pain and paresthesias which are not likely to be remedied by any additional surgical intervention." Id. at LM1257-58.

Page 912

Dr. Heffez confirmed this diagnosis on December 9, 2008, also taking notice of Krupp's increasing weakness in her upper and lower extremities, numbness on the right side of her body, urinary retention issues, and a decreased range of motion in her cervical spine due to pain.

Dr. Goodman also noted that Krupp's symptoms were worsening. On January 2, 2009, Dr. Goodman reported that Krupp's total disability score had increased to eighty-two out of one hundred. Nevertheless, Krupp attempted to return to work on January 6, 2009, but she experienced pain, numbness, and nausea while there and was unable to return to work the next day. She ceased working again as of January 7, 2009, was placed back on short-term disability, and transitioned to long-term disability on May 20, 2009.

Krupp continued seeing Dr. Nager, who on January 13, 2009 reported that Krupp was still experiencing total body numbness, severe headaches, cervical pain, and stiffness. He also noted that Krupp stated that she felt confused and foggy at times and that her symptoms interfered with her sleep. Krupp cried intermittently during the evaluation, which Dr. Nager believed indicated underlying depression. He referred Krupp to a psychiatrist for a consultation.

The next day, on January 14, 2009, Dr. Nager completed an " attending physician's assessment of capacity" for Krupp at the request of Liberty Life. In the form, Dr. Nager identified Krupp's diagnoses as " Chiari, myelopathy, migraine, [and] muscle spasm." Id. at LM688. Dr. Nager reported in the " physical capacity" portion of the assessment that Krupp was capable of sitting up to five and a half hours per day for forty minutes at a time. He stated, however, that Krupp was capable of only " occasional" (up to two and a half hours per day) standing, walking, driving, climbing, squatting, bending, kneeling, light grasping, fingering/typing, and reaching below shoulders. She could never push/pull, forcefully grasp, reach overhead, or lift any weight. When asked if Krupp was capable of functioning in an occupational setting full time within the capacities noted, Dr. Nager answered " no" and further noted that the restrictions imposed would last a " lifetime." Id. Dr. Nager verified that his assessment of Krupp's capacity was based upon his clinical experience, specialty training, diagnostic tests, patient self-reports, his direct observation, and his clinical examinations of Krupp.

Krupp received second opinions and saw other physicians in an effort to treat her symptoms. On January 30, 2009, Krupp saw neurosurgeon Dr. Jonathan Citow, who upon physical examination noted that Krupp's neck and back were tender with limited range of motion. Between March 9, 2009 and December 13, 2010, Dr. Aslam Zahir, a hematologist, treated Krupp for iron deficit anemia, vitamin B-12 deficiency, and severe pain. Krupp was also examined at the Mayo Clinic in Minnesota in May and June 2009. She was diagnosed with small fiber peripheral neuropathy, urinary urgency and frequency, ...

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