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Dragus v. Reliance Standard Life Insurance Co.

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

March 29, 2017

JOHN DRAGUS, Plaintiff,


          MARVIN E. ASPEN, District Judge

         Presently before us are cross-motions for summary judgment filed by Plaintiff John Dragus and Defendant Reliance Standard Life Insurance Company (“Reliance”), as well as Dragus' motion to supplement the administrative record. (Dkt. Nos. 33, 38, 52.) For the reasons stated below, we deny Dragus' motion for summary judgment and motion to supplement the record, and grant Reliance's cross-motion for summary judgment.


         Unless otherwise stated, the facts described herein are undisputed and culled from the parties' Local Rule 56.1 statements of fact and the Administrative Record (“AR”). (See Def.'s. Rule 56.1 Statement of Facts (Dkt. No. 48) [hereinafter Def.'s SOF]; Pl.'s Rule 56.1 Statement of Facts (Dkt. No. 40) [hereinafter Pl.'s SOF].) Beginning August 1, 2011, Dragus worked as a sales manager or “internet sales manager” for SMG/McCormick Place (“SMG”) in its show operations department. (Pl.'s SOF ¶¶ 10-11; Def.'s SOF ¶ 13.) According to SMG' description, show operations sales managers work “as a technical liaison” between various staff at McCormick Place to “ensure customer network and internets needs are met, ” as well as help “to provide internet and telecommunications services to exhibitors and show management.” (Pl.'s SOF ¶¶ 12-13.)

         Dragus ceased working at SMG in early 2014 due to “complaints of chronic pain, cognitive dysfunction and anxiety.”[1] (Def.'s SOF ¶ 14.) From March 3, 2014 through June 1, 2014, Dragus “received short term disability benefits through a third party.” (Id.) Thereafter, Dragus sought “payment of long term disability benefits under an employee welfare benefit plan (‘Plan') sponsored and maintained by [SMG] for its eligible employees, with long term disability benefits funded by Reliance Standard Life Insurance Company, pursuant to the terms of Group Long Term Disability Policy No. LTD 113908 (‘Group Policy').” (Id. ¶ 1.) “The Plan is governed by the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).” (Id. ¶ 2.) Reliance received Dragus's claim for long term disability benefits on April 4, 2014. (Id. ¶ 15.)

         I. The Group Policy

         The Group Policy provides that Reliance “will pay a Monthly Benefit if an insured: (1) is Totally Disabled as the result of a Sickness or Injury covered by this Policy; (2) Is under the regular care of a Physician; (3) Has completed the Elimination Period; and (4) Submits satisfactory proof of Total Disability.” (Id. ¶ 9.) “Total Disability” according to the Group Policy means that “an Insured cannot perform the material duties of his/her Regular Occupation.” (Id. ¶ 10.) “‘Regular Occupation' means the occupation the Insured is routinely performing when Total Disability begins. We will look at the Insured's occupation as it is normally performed in the national economy, and not the unique duties performed for a specific employer or in a specific locale.” (Id. ¶ 11.)

         II. Dragus' Medical Issues

         Prior to Dragus' current claim for long term disability, he reported and suffered a variety of health problems. On April 10, 2014, Dragus completed an initial telephone interview as part of his claims process, in which he reported he began experience neck, shoulder, and arm pain in 2005. (Pl.'s SOF ¶¶ 17, 49.) Dragus' pain worsened in 2008, after which he “underwent multiple epidural steroid injections, cortisone injections, and physical therapy treatment sessions.” (Id. ¶ 16.) In February 2011, Dragus underwent a “three-level spinal fusion.” (Id. ¶ 17.) While Dragus experienced some improvement following his surgery, his pain again worsened in early 2012. (Id. ¶ 18.) On May 9, 2012, Dr. April Fetzer diagnosed Dragus with “left cubital tunnel syndrome and early sensory polyneuropathy.” (Id.) Dr. Fetzer “prescribed a splint for Plaintiff's left elbow and, over the next several months, performed two facet medial branch block procedures, ” as well as “several trigger point injections.” (Id.) Dragus also attended several physical therapy treatments. (Id.)

         In February 2013, Dragus again received an “occipital nerve injection” from Dr. Fetzer, who also “prescribed a formal course of physical therapy, . . . and recommended that Mr. Dragus follow-up with a mental health provider to address his ongoing depression.” (Id. ¶ 19.) In March 2014, Dr. Kenneth Lofland, a clinical psychologist, “diagnosed Dragus with Generalized Anxiety Disorder, Depressive Disorder, and Pain Disorder.” (Id. ¶ 20.) At an April 12, 2013 physical therapy appointment, Dragus “reported that he was unable to sit for two hours, unable to stand or walk for more than 40 minutes, and that he ‘often has to leave work early or call in [absent] due to his symptoms.'” (Id. ¶ 21.) In an April 18, 2013 session with Dr. Lofland, Dragus reported problems with his memory. (Id. ¶ 20.)

         On April 23, 2013, Dragus underwent a rhizotomy procedure. (Id. ¶ 22.) A rhizotomy is a “procedure in which nerve ends are targeted and destroyed through the use of an electrified hot probe in an attempt to deaden the sensory nerve to the facet joint and prevents the pain from getting to the brain.” (Id. n.7.) At his next appointment with Dr. Fetzer, on May 23, 2013, Dragus reported no improvement in his pain since the procedure. (Id. ¶ 23.) At that appointment, Dr. Fetzer noted Dragus had “limited cervical range of motion, ” found further cervical injections were not warranted, and observed Dragus was “out of work for two weeks to recover from his acute pain, . . . per his request.” (AR at 434-35; see Pl.'s SOF ¶ 23.) Dragus underwent a cervical spine MRI on May 29, 2013, which “reveal[ed] straightening of the normal cervical lordosis, disc and facet disease, . . . mild to moderate foraminal narrowing, . . . severe foraminal stenosis, . . . and shallow broad-based disc protrusion.” (Pl.'s SOF ¶ 24.) Therafter, Dragus requested time off from work because of his medical condition, and Dr. Fetzer completed the appropriate paperwork required to authorize his time off under the Family and Medical Leave Act (“FMLA”). (AR at 380-385; see also Pl.'s SOF ¶ 24.) In support of Dragus' FMLA leave, Dr. Fetzer reported that “chronic positions [at] the computer inhibit proper posture which accelerates [Dragus'] pain, ” and that “high levels of stress and long term improper postures flare and accelerate [Dragus'] pain levels due to [his] underlying condition.” (AR at 383-84; see also Pl.'s SOF ¶ 24.)

         In July 2013, Dragus was examined by Dr. James Atchison, who admitted him into a pain management program at the Rehabilitation Institute of Chicago. (Pl.'s SOF ¶¶ 26-27.) At the time of his admission, Dragus complained of “stabbing, hot-burning, aching, and sharp pain, ” which was exacerbated by “looking down, prolonged sitting, prolonged standing, and stress.” (Id. ¶ 26; see also AR at 655.) Dragus further reported “psychological symptoms including depression, anxiety, apathy, fear, and irritability.” (Pl.'s SOF ¶ 26.) On August 9, 2013 Dragus was discharged from the pain management program, and “was noted as showing improvement with tolerance for prolonged bimanual activities requiring reaching, carrying, and dexterity with understanding and application of ergonomic modifications an adaptions to promote activity tolerances, tolerance for lifting, bending, and pushing up to 30 pounds.” (Id. ¶ 28.)

         Dragus was examined by a neurologist, Dr. Aggarwal, on October 8, 2013. (Id. ¶ 31.) Dragus reported “impairments in short-term memory since the previous spring, forgetfulness, irritability, poor concentration, and that he was making mistakes at work.” (Id.) Dr. Aggarwal “opined that Plaintiff's cognitive symptoms may be due to chronic pain, systemic factors, mood disturbance, or an early brain degenerative process requiring addition diagnostic testing.” (Id.) In November 2013, Dragus reported to Dr. Lofland, his psychologist, that he was having continued memory problems. (Id. ¶ 33.)

         At a follow-up appointment with Dr. James Atchison on February 14, 2014, Dragus reported that his pain was significantly worse, and that he did not believe he could continue working at SMG in his position. (Id. ¶ 34.) Dr. Atchison expressed to Dragus that, in his opinion, “he is not able to continue in his current position, ” because it “physically requires static work and positioning of his neck and shoulders which is one of the most difficult things for him to do with his current pain problems.” (Id.) On March 26, 2014, Dr. Atchison submitted a physician's statement “detailing [Dragus'] long-standing symptoms and stating that Mr. Dragus ‘can perform [only] with significant modifications physically' and ‘must limit static positioning.'” (Id. ¶ 35 (citing AR at 253) (alteration in original).)

         Dragus saw Dr. Francis Keating, a psychiatrist, for the first time on March 29, 2014. (Id. ¶ 36.) Dr. Keating stated there was likely a “strong psychological component associated with [Mr. Dragus'] anxiety.” (Id.). Dr. Keating recommended Dragus “taper his Xanax prescription to improve memory.” (Id.)

         After submitting his claim for long term disability benefits to Reliance on April 4, 2014, Dragus continued to seek medical treatment. On May 28, 2014, Dragus “underwent neuropsychological testing with Dr. Christopher Stewart, ” who “noted evidence that [his] pain symptoms worsened during times of stress, and reported that clinically significant distress, characterized by anxiety and depression, was also observed.” (Id. ¶ 38.) Dr. Aggarwal, the neurologist who previously examined Dragus in October 2013, reviewed the findings of Dragus' neuropsychological examination, and stated that the examination “show[ed] cognition impair[ment] due to pain and emotional factors rather than underlying cognitive loss.” (AR at 934-35; see also Pl.'s SOF ¶ 38.)

         After he stopped working, Dragus noted some mild improvement in his condition through June 21, 2014. (Id. ¶ 39.) However, in August 2014, Dragus reported increases in anxiety and depression, as well as increased pain in his neck and left arm. (Id. ¶¶ 39-40.) Dr. Alan Jones, Dragus' primary care physician, completed a “functional capacity evaluation” on February 4, 2015. (Id. ¶ 42). That evaluation noted “Dragus' severe, episodic pain was exacerbated by movement and prolonged sitting and resulted in his inability to sit, stand, or walk for more than two hours per day.” (Id.) Dr. Jones' evaluation also stated that “pain prevents sitting at computer.” (AR at 1139; see Pl.'s SOF ¶ 42.) Dr. Jones further noted Dragus' “‘overwhelming' spinal pain, in addition to depression and anxiety, resulted in ‘constant' interference with Dragus' ability to attend and concentrate and that ‘stress causes period[s] of forgetfulness, confusion, [and] poor recall.'” (Pl.'s SOF ¶ 42.) “Due to those symptoms, Dr. Jones concluded that Dragus was incapable of performing even low stress work and would likely miss four or more days of work per month.” (Id.)

         III. Reliance's Denial of Benefits

         Reliance received Dragus' claim for long term disability benefits on April 4, 2014. (Def.'s SOF ¶ 15.) Attached to the claim was an “Attending Physician's Statement” completed by Dr. James Atchison on March 26, 2014. (Id.) That statement “noted diagnoses of neck pain, chronic left shoulder pain, myofascial pain, decreased range of motion and anxiety, resulting in symptoms of neck pain and shoulders pain, decreased range of motion and decreased concentration.” (Id. ¶ 16.) Dr. Atchison further “opined that Plaintiff was restricted to alternately 3-5 hours of sitting, standing, walking and driving as well as to lifting 20 lbs”; and that Dragus “must limit static positioning.” (Id. ¶ 17; AR at 253.) Also attached were “Medical Progress Notes” completed by Dr. Atchison on February 14, 2014, stating in part that Dragus “is not able to continue in his current position at work. He is in a position that requires static work and positioning of his neck and shoulders which is one of the most difficult things for him to do with his current pain problems.” (AR at 258.) In addition, Dr. Atchison's notes stated “that ultimate determination of disability would be based on whether his [sic] job specific or if it requires total disability pattern . . . . [I]n our opinion he certainly has some functional ability at present.” (Id. at 259.)

         After receiving Dragus' claim, Reliance determined, with the help of a Rehabilitation Specialist, that Dragus' occupation was best characterized as a combination of the Customer-Equipment Engineer and Telecommunications Specialist positions provided by the Department of Labor in the Dictionary of Occupational Titles (“DOT”). (Def.'s SOF ¶ 23.) On August 22, 2014, Reliance “referred [Dragus'] file to Professional Disability Associates for dual independent physician reviews to include a discussion by physicians specialized in psychiatry and in occupational medicine.” (Id. ¶ 26.) Drs. Weisberg and Daniel reviewed Dragus's medical records. (Id. ¶ 28.) Dr. Weisberg concluded that Dragus was capable of working in his position with the following restrictions:

. Reaching at mid chest and above shoulders, occasionally (0-2.5 hrs)
. Lifting, carrying pushing and pulling 20 lbs, occasionally (0-2.5), 10 lbs frequently (2.5- 5.5 hrs)
. Reaching at desk level and below, handling, fingering, feeling, motor coordination and finger and manual dexterity; constantly (>5.5 hrs)

(Id. ¶ 29.) Dr. Weisberg further stated that Dragus' “self reported neck pain was not supported by an MRI of the cervical spine, which showed no significant findings to support his continued pain, and his prior fusion . . . was not noted to be causing any difficulties.” (Id. ¶ 31.) Dragus' records also “did not substantiate any nerve compression or impingement, ” according to Dr. Weisberg. (Id.) In sum, Dr. Weisberg concluded that Dragus “had the physical ...

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