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Hilderbrand v. Nat'l Electrical Benefit Fund

United States District Court, C.D. Illinois, Springfield Division

December 30, 2014

DENNIS HILDERBRAND, Plaintiff,
v.
NATIONAL ELECTRICAL BENEFIT FUND, Defendant

For Dennis G Hilderbrand, Plaintiff: Kevin L Linder, LINDER LAW OFFICE, Springfield, IL.

For National Electrical Benefit Fund, Defendant: Jennifer Bush Hawkins, POTTS-DUPRE HAWKINS & KRAMER CHTD, Washington, DC.

Page 801

OPINION

SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

Plaintiff Dennis Hilderbrand challenges the National Electrical Benefit Fund's (NEBF) decision to deny him disability benefits for the period of March 2005 through October 2008. Cross motions for summary judgment are pending. Because the NEBF Trustees failed to consider reliable, contrary evidence submitted bye Hilderbrand, Hilderbrand's Motion for Summary Judgment (d/e 12) is GRANTED IN PART and the cause is remanded to the NEBF Trustees for a de novo benefits

Page 802

determination. The NEBF's Motion for Summary Judgment (d/e 13) is DENIED.

I. FACTS

The facts are largely undisputed. The NEBF is a multiemployer employee pension benefit plan within the meaning of Section 3(2) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1002(2)). NEBF's Statement of Undisputed Fact No. 1. The NEBF was established pursuant to an agreement entered into between the International Brotherhood of Electrical Workers and the National Electrical Contractors Association for the purpose of providing retirement benefits to participants upon their retirement from the electrical industry. Id. The NEBF is governed by the Plan of Benefits for the NEBF (Plan). Id. at 2. Hilderbrand is a participant in the NEBF by virtue of the work he performed in covered employment and is 100% vested. Id. at 4.

On October 9, 2002, Hilderbrand (d/o/b October 22, 1958) was injured at work while operating a piece of machinery. See, e.g., Administrative Record at 60 (d/e 15) (hereinafter cited as " R." and the page number of the Administrative Record). Hilderbrand suffered lacerations on his lower right leg. Id. The lacerations were repaired, but Hilderbrand continued to experience pain in his lower leg. Id.

In November 2004, Hilderbrand had surgery on his leg to release the right peroneal nerve. R. 199. The surgery was performed by Dr. Susan Mackinnon, Shoenberg Professor and Chief, Division of Plastic and Reconstructive Surgery, Washington University. Id. Although Dr. Mackinnon was optimistic that the surgery would relieve Hilderbrand's pain, Hilderbrand continued to experience significant pain. Hilderbrand sought treatment at the Washington University Pain Management Center with Dr. Mohammad Munir and then, after Dr. Munir left, with Dr. Robert A. Swarm. Hilderbrand tried IV lidocaine, right lumbar sympathetic block, and radiofrequency ablation of the lumber sympathetic nerve. See, e.g., R. 221, 224, 226, 229, 232, 234, and 236. Nothing provided him long-term pain relief.

In June and November 2006, Dr. Swarm restricted Hilderbrand to light duty, sedentary work with allowances for elevation of his right lower leg. R. 85, 91. Dr. Swarm found Hilderbrand was able to stand for a maximum of 15 minutes total every two hours. Id. Walking was limited to a maximum of 40 yards on a rare basis and required the use of a cane. Id.

On April 18, 2007, Administrative Law Judge Alice Jordan found Hilderbrand " disabled" within the meaning of the Social Security Act from October 9, 2002 through December 8, 2004.[1] R. 91-111. ALJ Jordan found that, on December 9, 2004, medical improvement occurred, and Hilderbrand was able to perform substantial gainful activity from December 9, 2004 through the date of the decision.

Specifically, ALJ Jordan found that, beginning December 9, 2004, Hilderbrand had the residual functional capacity to perform work that: required the ability to lift or carry up to 10 pounds occasionally or frequently and that accommodated the use of a hand-held device (a cane) for assistance with ambulation; allowed sitting for 6 to 8 hours with the accommodation to elevate the leg as needed; required no more than 2 hours of standing or walking with the use of a hand-held device; required no climbing or crawling, and only occasional balancing, crouching, or kneeling; and required no exposure to hazards. R. 105.

Page 803

In making the residual functional capacity determination, ALJ Jordan considered medical records as recent as November 27, 2006, as well as Hilderbrand's testimony at the hearing that he thought he could work if his needs, including elevating his leg, were accommodated. R. 106-09. The ALJ noted that Hilderbrand could not perform the full range of sedentary work. R. 110. Therefore, the ALJ asked the vocational expert whether jobs existed in the national economy for a person with claimant's age, education, work experience, and residual functional capacity as of December 9, 2004. Id. The vocational expert testified that such jobs existed in significant numbers in the national economy. Id. Therefore, the ALJ found Hilderbrand " not disabled" as of December 9, 2004. R. 111.

Hilderbrand continued to receive medical treatment for his pain. In January 2008, Hilderbrand consulted with Dr. Jacques VanRyn, M.D. of Premier Care Orthopedics. R. 238-40. Dr. VanRyn examined Hilderbrand and reviewed Hilderbrand's medical records. Dr. VanRyn diagnosed Hilderbrand with complex regional pain syndrome and found Hilderbrand had reached maximum medical improvement. Like Dr. Swarm, Dr. VanRyn found Hilderbrand had permanent restrictions of sedentary work only: " standing for a maximum of 15 minutes/two hours, or one hour per day" ; walking limited to a maximum of 40 yards on an infrequent basis, with the use of a cane; and the ability while sitting to elevate his right leg. R. 240. In addition, Dr. VanRyn noted that re-education toward a job that Hilderbrand could do on a sedentary basis would be necessary. Id.

On December 2, 2008, ALJ John Dodson found Hilderbrand disabled under sections 216(i) and 223(d) of the Social Security Act since October 21, 2008.[2] R. 177-81. ALJ Dodson found no basis for reopening Hilderbrand's prior application. R. 177. Moreover, the decision indicated that Hilderbrand had amended the alleged onset date of disability to October 21, 2008 (the day before Hilderbrand's 50th birthday). R. 177.

ALJ Dodson found that Hilderbrand had the residual functional capacity to perform sedentary work except that he was limited to work that accommodated the use of a hand-held device for assistance with ambulation. R. 179. In addition, the work should: allow sitting for 6 to 8 hours with accommodation to elevate the leg as needed[3]; require no more than 2 hours of standing or walking with the use of a hand-held device; require no climbing or crawling and only occasional balancing, crouching, and kneeling; and require no exposure to hazards. R. 179. Hilderbrand could not perform his past relevant work. ALJ Dodson found, considering Hilderbrand's age, education, work experience, and residual functional capacity, that there were no jobs that existed in significant numbers in the national economy that Hilderbrand could perform. R. 180.

Specifically, ALJ Dodson examined the Medical-Vocational Guideline (20 C.F.R. Part 404, Subpart P, Appendix 2 (a/k/a " the Grid" ) which directed a finding of " disabled" even if Hilderbrand could have performed the full range of sedentary work. R. 180.

Taking into account the two Social Security decisions, Hilderbrand received social security benefits beginning April 2003 and ending March 2005 (R. 12) and again beginning November 2008 (R. 31).

Page 804

In January 2012, Hilderbrand completed an NEBF Participant Pension Benefit Application seeking disability benefits. R. 1. The ...


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