United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
L. ALONSO UNITED STATES DISTRICT JUDGE.
defendant United of Omaha Life Insurance Company
(“United of Omaha”) denied her request for short
and long-term disability benefits, plaintiff Shirley Lacko
(“Lacko”) filed a one-count complaint under ERISA
§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The
parties have filed cross motions for summary judgment. For
the reasons set forth below, the Court grants defendant's
motion  for summary judgment and denies plaintiff's
motion  for summary judgment.
following facts are undisputed unless otherwise
began working for a predecessor of her employer, BKD, in
approximately January 1999. While plaintiff was employed by
BKD, it sponsored benefit plans offering short-term
disability (“STD”) payments and long-term
disability (“LTD”) payments. The STD plan covers
the first 90 days of disability, after which the LTD plan
applies. Defendant United of Omaha is the claims
administrator for the STD and LTD plans.
terms of the STD plan are different from the terms of the LTD
plan. The STD plan provides:
Disability and disabled mean that because of
an Injury or Sickness, a significant change in Your
mental or physical functional capacity has occurred in which:
(b) after [the first fourteen days], You are:
(1) prevented from performing the Material Duties of Your
Regular Job (on a part-time or full-time basis) or are unable
to work Full-Time; and
(2) unable to generate Current Earnings which exceed 99% of
Your Weekly Earnings due to that same Injury or Sickness.
Material duties means the essential tasks,
functions, and operations relating to Your Regular Job that
cannot be reasonably omitted or modified.
Regular Job means the occupation You are
routinely performing when Your Disability begins.
Record at 1101-1103 (italicized emphasis added)).
plan, on the other hand, provides:
Disability and Disabled means that because
of an Injury or Sickness, a significant change in
Your mental or physical functional capacity has occurred in
which You are:
(a) prevented from performing at least one of the Material
Duties of Your Regular Occupation on a part-time or full-time
(b) unable to generate Current Earnings which exceed 99% of
Your Basic Monthly Earnings due to that same Injury or
After a Monthly Benefit has been paid for 3 years, Disability
and Disabled mean You are unable to perform all of the
Materal Duties of any Gainful Occupation.
Disability is determined relative to Your ability or
inability to work. It is not determined by the availability
of a suitable position with Your employer.
Material Duties means the essential tasks,
functions, and operations relating to an occupation that
cannot be reasonably omitted or modified. In no event will We
consider working an average of more than 40 hours per week in
itself to be part of material duties. One of the material
duties of Your Regular Occupation is the ability to work for
an employer on a full-time basis.
Regular Occupation means the occupation You
are routinely performing when Your Disability begins.
Your regular occupation is not limited to the specific
position You held with the Policyholder, but will instead be
considered to be a similar position or activity based on job
descriptions included in the most current edition of the U.S.
Department of Labor Dictionary of Occupational Titles
(DOT). We have the right to substitute or replace the
DOT with a service or other information that We determine of
comparable purpose, with or without notice. To determine
Your regular occupation, We will look at Your occupation as
it is normally performed in the national economy, instead of
how work tasks are performed for a specific employer, at
a specific location, or in a specific area or region.
plan at 29-31/Docket [1-1 at 54-57] (italicized emphasis
September 2015, plaintiff (who was born in December 1953) was
working full-time at BKD as a Senior Audit Manager for an
annual salary of $93, 250.04. The job description of Senior
Audit Manager states that plaintiff was responsible for,
among other things:
supervis[ing] Seniors, Associates, and Interns. He or she is
responsible for audit program approval, personnel scheduling,
audit working papers review, financial statement disclosure
footnote approval, day to day client relationships,
determination of billings for engagements, and evaluation of
Interns, Associates and Seniors.
Record at 959-961). In addition, a Senior Audit Manager was
expected to manage “multiple concurrent engagements,
” demonstrate “proficiency/subject matter
expertise with industry-specific technical standards, ”
supervise and train other accountants, assign workload and
develop new business. The job description noted that the
position requires sitting for up to four hours and working at
a computer for up to four hours. In addition, the position
included driving a firm or personal vehicle approximately 25%
of the time. Plaintiff's employer described her job as
claim for short-term benefits
September 25, 2015, when she was 61 years old, plaintiff
stopped working, complaining of chronic pain, cognitive
dysfunction and anxiety. She applied for benefits under the
STD plan on October 2, 2015. United of Omaha requested that
plaintiff provide a statement from an attending physician.
Vanessa Hagan, M.D. (“Dr. Hagan”),
plaintiff's physician, completed the form. Dr. Hagan
stated that the reason plaintiff could not work was
“severe” back pain and abdominal pain. Dr. Hagan
expected the condition to last about six months.
October 19, 2015, after speaking with plaintiff, United of
Omaha approved plaintiff's claim for short-term
disability benefits for the period of October 12, 2015
through October 27, 2015. United of Omaha also requested
additional medical records. On October 27, 2015, United of
Omaha approved short-term disability benefits for plaintiff
through November 8, 2015 and requested additional medical
supplied additional records, including records from
plaintiff's April and May 2015 visits to Dr. Hagan. Those
records reflected that plaintiff had reported feeling pretty
good. Plaintiff also provided records from a July 23, 2015
appointment with Dr. Hagan. At that appointment, plaintiff
had reported on-and-off back pain. Plaintiff saw Dr. Hagan on
September 24, 2015, at which point plaintiff reported pain
all over. Dr. Hagan referred plaintiff to a rheumatologist,
Daniel Hirsen, M.D. (“Dr. Hirsen”).
saw Dr. Hagan again on October 27, 2015. At that appointment,
plaintiff reported “some back pain, on and off.”
On October 31, 2015, Dr. Hagan completed a physician
statement, noting that plaintiff had back pain,
osteoarthritis and diabetes. Dr. Hagan wrote that plaintiff
was first treated in 2010. Dr. Hagan stated that plaintiff
could not work due to severe pain. Dr. Hagan checked the box
“unable to perform” with respect to every job
task listed on the form, including “[f]ollow work
rules, ” “[r]elate to co-workers, ”
“[u]se judgment and make decisions” and
“[d]irect, control or plan the work of others.”
November 11, 2015, after speaking with plaintiff, United of
Omaha extended plaintiff's short-term disability benefits
for two more weeks, through November 22, 2015. United of
Omaha also requested additional medical records.
of Omaha received additional records. Among the records were
MRI reports from December 2013 and records of a
gastric-emptying study done in June 2011. The
gastric-emptying study found that plaintiff's stomach
empties slowly. The December 2013 MRIs were of
plaintiff's cervical and thoracic spine, and they showed
degenerative disc disease. At the time, Dr. Hagan did not
consider plaintiff a candidate for surgery and, instead,
prescribed hydrocodone. On December 9, 2015, United of Omaha
received records from plaintiff's November 6, 2015 office
visit with Dr. Hagan. At that visit, plaintiff continued to
complain of pain.
it received those additional records, defendant confirmed
with plaintiff that no further documents were coming and sent
the file to a Nurse Case Manager for review. The Nurse Case
Manager was asked whether the restrictions suggested by
plaintiff's physician were supported by medical
documentation. The Nurse Case Manager responded by saying,
among other things, that she was “unable to determine
any restrictions and limitations from the last day worked and
December 17, 2015, United of Omaha denied plaintiff's
application for short-term disability benefits beyond
November 22, 2015. In denying additional short-term benefits,
United of Omaha stated:
In summary, the medical documentation provided by Vanessa
Hagan, MD covering April 02, 2015 through November 06, 2015,
shows that there has been no change in your physical
functional capacity which would prevent you from performing
the material duties of your regular job. Therefore, no
benefits are payable, and your claim has been denied beyond
November 22, 2015.
Record at 1540).
6, 2016, plaintiff, with the help of an attorney, had
appealed the decision to deny her continued short-term
disability benefits. In connection with her appeal, plaintiff
provided additional medical records, which showed plaintiff
had suffered abdominal pain for 24 years, diabetes for 19
years and gastroparesis (which causes poor emptying of food
from the stomach) for 8 years. Among the documents were
records of plaintiff's visits with Ali Keshavarzian, M.D.
(“Dr. Keshavarzian”). In August 2014, Dr.
Keshavarzian said plaintiff's “abdominal pain is
due to diabetes gut (gastroparesis and possible mononeuritis
multiplex) and referred pain from her back.” Dr.
Keshavarzian noted that plaintiff's pain starts about 20
minutes after eating and lasts for hours, sometimes radiating
to her back. The doctor prescribed Linzess (which treats
constipation). He also noted that plaintiff had a full range
of motion. Plaintiff saw Dr. Keshavarzian again in January
2016 and March 2016. Dr. Keshavarzian again said
plaintiff's abdominal pain was due to “diabetic gut
with gastroparesis.” In March 2016, he noted that
plaintiff's constipation had improved with Linzess.
also provided records from plaintiff's visits with Dr.
Hirsen, the rheumatologist. Those records showed that
plaintiff had first visited Dr. Hirsen in 2010, after she was
diagnosed with rheumatoid arthritis. Plaintiff did not return
until November 3, 2015, when Dr. Hagen suggested plaintiff
see Dr. Hirsen. Dr. Hirsen again diagnosed plaintiff with
rheumatoid arthritis and prescribed anti-inflamatory drugs.
Dr. Hirsen ordered x-rays, which showed arthropathy in
plaintiff's hands and feet. In February 2016, Dr. Hirsen
wrote that plaintiff “is unable to tolerate many
medications because of chronic gastroparesis. For these
reasons, she is unable to sit for long periods because of
neck and low back pain, and she is unable to do computer work
because of the peripheral joint pain and swelling.” In
March 2016, as compared to November 2015, plaintiff had fewer
also saw an endocrinologist and a pain specialist. The
endocrinologist's records reflected that plaintiff did
not complain of pain and that her blood sugar decreased from
343 in February 2015 to 154 in March 2016. Plaintiff's
pain specialist noted that in March 2016, plaintiff
complained of bilateral wrist, knee and ankle pain, as well
as left neck pain and pain that interfered with sleeping. The
pain specialist prescribed Cyclobenzaprine for muscle spasms
and encouraged plaintiff to continue taking hydrocodone for
pain. The pain specialist also administered injections to
relieve the pain. When plaintiff returned on April 5, 2016,
she reported a 50% reduction in pain.
of Omaha referred plaintiff's claim for review by an
independent specialist, Alan Neuren, M.D. (“Dr.
Neuren”). On June 14, 2016, Dr. Neuren provided his
report. Dr. Neuren first summarized the medical records he
reviewed and noted the restrictions suggested by attending
physicians. In his analysis, Dr. Neuren noted, among other
Information indicates insured stopped working due to
complaints of chronic pain and gastroparesis. . . . At the
time her claim was closed in November of 2015, there were no
findings or assessments that would indicate her gastroparesis
has worsened or was impairing. With regard to complaints of
chronic pain, records indicate insured has been on opiates
for ten years. . . . Some facet hypertrophy was noted. These
are findings commonly seen in asymptomatic individuals in
this age group. . . . When claimant saw Dr. Hirsen on
11/3/15, she had not been seen for five years. He reported
diagnosing her with RA due to a positive rheumatoid factor.
He ordered a repeat study along with a CCP antibody, but did