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Lacko v. United of Omaha Life Insurance Co.

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

May 15, 2018

SHIRLEY LACKO, Plaintiff,
v.
UNITED OF OMAHA LIFE INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO UNITED STATES DISTRICT JUDGE.

         After 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 [46] for summary judgment and denies plaintiff's motion [31] for summary judgment.

         I. BACKGROUND

         The following facts are undisputed unless otherwise noted.[1]

         Plaintiff 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.

         The 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.

         (Administrative Record at 1101-1103 (italicized emphasis added)).

         The LTD 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 basis; and
(b) unable to generate Current Earnings which exceed 99% of Your Basic Monthly Earnings due to that same Injury or Sickness.
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.

         (LTD plan at 29-31/Docket [1-1 at 54-57] (italicized emphasis added)).

         By 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.

         (Administrative 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 sedentary.

         Plaintiff's claim for short-term benefits[2]

         On 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.

         On 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 information.

         Plaintiff 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”).

         Plaintiff 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.”

         On 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.

         United 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.

         After 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 forward.”

         On 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.

         (Administrative Record at 1540).

         By June 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.

         Plaintiff 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 swollen joints.

         Plaintiff 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.

         United 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 things:

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 ...

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