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Dorriss v. UNUM Life Insurance Company of America

United States District Court, S.D. Illinois

April 27, 2018



          STACI M. YANDLE, United States District Judge

         Before the Court are Defendant Unum Life Insurance Company of America's (“Unum”) Motion for Judgment on the Administrative Record (Doc. 52) and Plaintiff Stephanie Dorris' Motion for Summary Judgment (Doc. 58). These are cross-motions for judgment on the administrative record under Federal Rule of Civil Procedure 52(a), and the Court finds that resolution of the case on the administrative record is appropriate. Marantz v. Permanente Med. Grp., Inc. Long Term Disability Plan, 687 F.3d 320, 327 (7th Cir. 2012).[1]

         At issue is Unum's termination of long-term disability benefits (“LTD”) which it had paid to Dorris from 2003 until September 2015. The Court now makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).


         Plaintiff Stephanie Dorris was President and owner of Beans Plus, Inc., and its sister business, The Stock Minders, Inc., from 1997 until 2001. (Administrative Record (“AR”) at pp. 494-498)[2] The employees of Beans Plus were covered by a LTD policy (“the Policy”) issued by Unum. (AR 127-147). Under the Policy provisions, an insured is “disabled” or has a “disability” if, because of “injury or sickness”:

1. you cannot perform each of the material duties of your regular occupation; and
2. after benefits have been paid for 24 months, you cannot perform each of the material duties of any gainful occupation for which you are reasonably fitted by training, education or experience; or
3. you, while unable to perform all of the material duties of you regular occupation on a full-time basis, are:
a. Performing at least one of the material duties of your regular occupation or another occupation on a part-time or full-time basis; and
b. Currently earning at least 20% less per month than your indexed pre-disability earnings due to that same injury or sickness. (AR 128).

         Dorris filed for LTD benefits in December 2001. (AR 149-150). Her initial basis for filing was severe pelvic and abdominal pain caused by endometriosis. (AR 149-156). The claim was approved in early 2002 and Unum began paying her benefits. (AR 263).

         Dorris had undergone a number of surgical procedures for pelvic and abdominal pain prior to her filing for LTD benefits, including eight laparoscopic procedures and a complete hysterectomy. (AR 539). She underwent additional procedures after her claim was accepted. Specifically, in July 2003, she had surgery to remove adhesions in her abdomen and pelvis involving her ascending colon, abdominal sidewall, cecum, bowel and pelvic sidewall, as well as rectocele repair. (AR 929-936). A similar procedure was performed in September 2004 which eliminated more adhesions and included a partial resection of her bowel. (AR 1155-61). She was also treated using a number of nerve block injections in an effort to stem the pain in December 2002 to April 2003. (AR 701-702, 875-881).

         In late 2004, Dr. Andrew Cook had Dorris screened for Lyme disease, a tick-borne bacterial infection. On a questionnaire, Dorris was “positive for 26 out of 38 questions” and reported significant exposure to ticks in the past. (AR 1258). A follow-up blood test was consistent with Lyme disease. (AR 1274-76). When asked about Dorris' restrictions and limitations on a subsequent Attending Physician's Statement form, Dr. Cook stated that Dorris suffered from a loss of concentration and that her fatigue “can be severe.” (AR 1223)

         In April 2005, Dorris applied for disability benefits from the Social Security Administration. (AR 1887-95). After an initial denial, she was awarded full disability benefits by the Administrative Law Judge (“ALJ”). (AR 1890). The ALJ determined that Dorris was impaired by Lyme disease, chronic pain syndrome, endometriosis, cervical spine stenosis and depression, and that she had moderate difficulties in maintaining concentration, persistence or pace. (AR 1892). He also made a finding on her residual functional capacity (“RFC”) for work that included the following limitations: sitting for two hours and two hours standing or walking per eight-hour workday; allowance for more than three unscheduled absences per month; and limitation to simple, routine, repetitive work. (AR 1893). Dorris continues to receive Social Security Disability benefits.

         In June of 2007, Unum received an Attending Physician's Statement from Dr. Rashmi Nakra, a Psychiatrist. (AR 1868-69). Dr. Nakra diagnosed Lyme disease and Major Depression, noting “serious cognitive deficits” and an inability “to sustain attention and focus.” (Id.).

         Dr. Charles Crist, one of Dorris' treating physicians, also wrote a letter in June 2007 describing her condition and treatment. (AR 1871). Crist, who according to Dorris is a “Lyme Disease Specialist, ” stated that Dorris had been diagnosed with borreliosis (Lyme) and exhibited “cognitive issues, trouble reading and comprehending, trouble with numbers, numbness, eye problems, long-lasting migraines and urinary difficulties, ” as well as significant body pain. (Id.).

         Beginning in 2008, Dorris began seeing Dr. Steven Harris for treatment of Lyme disease. (AR 5430). Dr. Harris' records, especially from 2012 onward, paint an overall picture of general improvement, but with significant plateaus and backsliding. On May 2, 2012, Dr. Harris saw Dorris for an office visit at which she reported that she “has made a remarkable recovery in the last few months, minimal to no pelvic pain.” (AR 3885). She also reported that she continued to have fatigue and stamina issues but felt that “her brain [was] back.” (Id.). This improvement with continued fatigue issues appears to have persisted over the next several months, to the point that Dorris was playing nine holes of golf once a week, taking daily walks and doing “things that were impossible for 10 years.” (AR 3877-84). However, the positive trajectory soon began to reverse itself.

         In October 2012, Unum engaged Norma Parras Potenzo, a Vocational Rehabilitation Consultant (“VRC”), for clarification of the demands of Dorris's regular occupation. (AR 3796-800). Ms. Parras Potenzo described the “Material and Substantial Duties” of a “Company President” as follows:

Responsible for the profitability of the entire organization; Holds position of the top executive and principal organization leader in the organization; This position is distinguished from others in that it is the top ranking executive and, in most cases, is the highest paid executive in the organization; Confers with organization officials to plan business objectives, to develop organizational policies to coordinate functions and operations between divisions and departments, and to establish responsibilities and procedures for attaining objectives; Reviews activity reports and financial statements to determine progress and status in attaining objectives and revises objectives and plans in accordance with current conditions; Directs and coordinates formulation of financial programs to provide funding for new or continuing operations to maximize returns on investments, and to increase productivity; Plans and develops industrial, labor and public relations policies designed to improve company's image and relations with customers, employees, stockholders and public; Evaluates performance of executives for compliance with established policies and objectives of firm and contributions in attaining objectives. May preside over Board of Directors; May serve as chairman of committees, such as management, executive, engineering and sales. (AR 3797-98).

         Parras Potenzo classified the physical demand level of the occupation as sedentary. (AR 1799). She noted that the mental/cognitive demands of the occupation include the following on a frequent (2.5 to 5.5 hours in an 8 hour workday) basis: use of detailed memory instruction, concentration and attention, coping with a work schedule, coping with work distractions, making work decisions, adaptation to change, travel and independent planning. (Id.). She also described specific job duties and responsibilities associated with the occupation, including “accepting responsibility for formulating plans, designs, practices, policies, methods, regulations and procedures for operations or projects;” “supervising subordinate workers to implement plans and control activities[;]” “solving problems, making evaluations, or reaching conclusions based on subjective or objective criteria, such as the five senses, knowledge, past experiences, or quantifiable or factual data;” and “frequent changes of tasks involving different aptitudes, technologies, techniques, procedures, working conditions, physical demands or degrees of attentiveness without loss of efficiency or composures.” (Id.).[3]

         In November 2012, Dorris complained of increased issues with fatigue and “increased brain fog.” (AR 3875). On January 10, 2013, she reported that she “was doing fairly well, was golfing for a while, but developed worsening pelvic, muscle, and joint pain. She has had some significant episodes of breakthrough pain, some dizziness, some lightheadedness, and some weakness. Cognitively, she does remain better.” (AR 4248) She also reported “much worsening fatigue, and intensive napping[, ]” and gave the appearance of being more fatigued than she previously had. (Id.). The following month, she complained of chronic “mild stabbing” pain in her upper abdomen and “some weakness.” (AR 4247).

         On March 18, 2013, Unum sent a letter to Dorris informing her that it had completed its review of her recent medical history and that she continued to be eligible for LTD benefits. (AR 4048). This decision appears to be based on a review of Dorris' file conducted by Sharon Davenport, RN, Unum's Clinical Nurse Consultant. (AR 4042-45). In her report, Davenport summarizes Dorris' medical history, with particular emphasis on recent records and statements up to December 2012. She noted the fluctuations in Dorris' condition and symptoms as reflected in Dr. Harris's office notes, including her “remarkable recovery” and subsequent backslide from March to December 2012. (AR 4044). Davenport described Dorris' progress at that time:

The Insured is slowly improving in her functional abilities. She is expanding her activities. She is still experiencing inconsistent tolerances/reactions to her activities. Her chronic abdominal pain is improving and she is requiring less pain medications. Her fatigue level and “brain fog” continues to fluctuate. Her ability for performing ...

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