Bustetter v. Standard Ins. Co.

529 F.Supp.3d 693

Lewis BUSTETTER, Plaintiff

v.STANDARD INSURANCE CO., Defendant

CIVIL ACTION NO. 18-1-DLB-EBA

United States District Court, E.D. Kentucky, Northern Division. at Ashland.

Signed March 29, 2021

Andrew M. Grabhorn, Michael D. Grabhorn, Grabhorn Law Office, PLLC, Louisville, KY, William H. Wilhoit, Grayson, KY, for Plaintiff.

Jacqueline J. Herring, Smith & von Scheicher & Attorneys, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

David L. Bunning, United States District Judge

Plaintiff Lewis Bustetter brings this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), claiming that Defendant Standard Insurance Company, as administrator of his employee benefit plan, wrongfully denied him long-term disability and life insurance benefits. In a September 2019 Memorandum Opinion and Order, the Court remanded the case to Standard for a "full and fair review" of Bustetter's claim. (Doc. # 52). Standard once again denied Bustetter's claim for benefits in December 2019, and the case has since been reopened. (Doc. # 60). The parties have each filed renewed cross-motions for judgment on the administrative record. (Docs. # 70 and 71). These motions have now been fully briefed, (Docs. # 72, 73, 74, and 75), and are ripe for the Court's review. Because Bustetter has not met his burden of showing that he is disabled under the governing plan, Standard's Motion is granted and Bustetter's Motion is denied .

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case have been recited in several earlier Orders of the Court, (see Docs. # 34, 52, and 60), and will be summarized here as necessary. Plaintiff Bustetter worked as a tank truck driver for CEVA Logistics. As a benefit of his employment with CEVA, he obtained disability coverage under a Group Long-term Disability ("LTD") Policy (#647503-D) and a Group Life Policy (#647503-A). (AR 611, 730). When Bustetter became injured in 2015, Standard approved Bustetter's claim for LTD benefits, finding that his neck sprain, shoulder pain, cervicalgia spinal stenosis, SLAP lesion, shoulder tendinosis, and impending back surgery rendered him unable to work in his current occupation as a tank truck driver. (AR 375, 455). Bustetter also received life insurance without payment of premium ("LWOP") benefits under the Group Life Policy. (AR 1409).

To continue receiving LTD benefits past 24 months, Bustetter had to clear two hurdles. First, he had to show disability stemming from a condition that was not excluded under the Plan. The LTD Policy caps payments at 24 months for disability caused by "Other Limited Conditions," notably chronic pain conditions, carpal tunnel, arthritis, and "diseases or disorders of the cervical, thoracic, or lumbosacral back and its surrounding soft tissue." (AR 9). In July 2016, Bustetter was diagnosed with myelitis of the cervical spine, a condition expressly excepted from the list of "Other Limited Conditions" in the Group LTD Policy. (AR 9, 138, 152). Standard confirmed with Bustetter on November 14, 2016 that his diagnosis of myelitis meant that his LTD coverage would not be limited by the two-year cap for "Other Limited Conditions." (AR 472). Second, Bustetter had to show that his medical condition made him unable to work in "Any Occupation," defined as an occupation "available at one or more locations in the national economy" and in which the participant would "be expected to earn at least 60% of [his] Indexed Predisability Earnings within twelve months following [his] return to work." (AR 31).

In support of his claim that he is unable to perform "Any Occupation," Bustetter submitted records and information from his treating physicians. Dr. Douglas Deitch reported on March 27, 2015 that Bustetter should "avoid repetitive bending [of the] neck and lumbar" due to his "lumbar radiculopathies, lumbar herniated disc, neck pain, and cervical stenosis." (AR 1060). An MRI from March 31, 2016 revealed a "slight enlargement of the cord lesion," which "suggest[ed] an inflammatory etiology such as viral myelitis or systemic autoimmune disease." (AR 151). Another of Bustetter's treating physicians, Dr. Paul Moots, noted on April 1, 2016 that Bustetter's gait was "stiff and was slightly wide base." (AR 150). In reviewing the MRI of Bustetter's spine, Dr. Moots diagnosed Bustetter with "[c]ervical myelopathy related to intrinsic spinal cord lesion at C7" and noted that "[m]yelitis is favored given the partial resolution of the MRI findings." (AR 138).

In December 2016, Standard notified Bustetter that he did not satisfy the Group LTD Policy's "Any Occupation" definition of disability and therefore did not qualify for continued LTD benefits past January 7, 2017. (AR 332-335). Standard also discontinued Bustetter's LWOP benefits because he did not satisfy the Group Life Policy's similar requirement that he be "Totally Disabled," defined as someone who "as a result of Sickness, accidental Injury, or Pregnancy," is "unable to perform with reasonable continuity the material duties of any gainful occupation for which [he is] reasonably fitted by education, training and experience." (AR 783).

In denying Bustetter's claim, Standard conceded that Bustetter was limited by cervical myelitis but nonetheless concluded that he was able to perform sedentary work with certain restrictions. (AR 396-401). Standard relied upon the opinions of three consulting physicians who had conducted a review of Bustetter's medical file. Dr. John Hart, for example, opined that Bustetter's myelitis "is documented to be improving" and "strength and sensation on neurological examination regarding the upper extremities and the cervical spine were essentially normal on multiple examinations at Vanderbilt [University Hospital]." (AR 119). Based on this medical evidence, Dr. Hart determined that Bustetter had the functional capacity for light-level work. (AR 118).

In addition, Standard hired a vocational expert, Brian Petersen, to conduct a Transferable Skills Assessment ("TSA"). (AR 619-638). In his report, Petersen observed that Bustetter has an Associate in Arts degree from Ashland Community College and an employment history as a truck driver. (AR 642). He also noted that Bustetter has fifteen years of customer service experience, including brief experience in telephone account collections. (AR 642-643). From this work history, Petersen determined that Bustetter could engage in sedentary occupations within his skillset, including motor vehicle dispatcher, collection clerk, and order clerk. (AR 625). Petersen further concluded that these occupations would meet the wage requirements under the Group LTD Policy. (Id. ).

After Standard denied Bustetter's request for continued LTD and LWOP benefits, Bustetter filed an administrative appeal and submitted additional evidence. (AR 85). First, Bustetter provided Standard with a Functional Capacity Evaluation ("FCE") conducted by physical therapist Karen Scholl on January 16, 2017, two months after Standard's initial decision to deny Plaintiff's claims. (AR 110-112). The FCE stated that Plaintiff was suffering from hypertension, osteoarthritis, ulcers, asthma, and transverse myelitis, and that he was "unable to work at this time due to multiple areas of significant pain." (AR 110). Scholl also found Bustetter to be limited to forty-five to sixty minutes of sitting, five minutes of standing, and one minute of walking. (AR 112). Furthermore, Bustetter's fine motor skills on his right side were "impaired bilaterally due to pain and task performance" and "impaired by 50%." (Id. ). Finally, the FCE stated that Bustetter should avoid bending, squatting, kneeling, and climbing, and should lift up to three pounds "rarely." (Id. ).

In addition to the FCE, Bustetter submitted records from visits with his neurologist Dr. Stephanie Lynn Dalton. (AR 89-107). Dr. Dalton noted Plaintiff's FCE from January and stated that his spinal cord lesion had left permanent damage and "therefore his noted functional capacity will likely be impaired long term." (AR 89). Dr. Dalton also reported that since his myelitis diagnosis, Bustetter "has continued to have weakness/sensory loss, painful muscle spasms, bladder and sexual dysfunction."

(Id. ). During a visit to Dr. Dalton on March 23, 2017, Bustetter exhibited "mild weakness as well as a noted spinal sensory level and gait dysfunction." (Id. ). In a subsequent visit, Dr. Dalton reported that Bustetter "[c]ontinues to ambulate with a cane," but that "Robaxin seems to be helping quite a bit without any significant side effects. If muscle spasm pain was a 10 before, now a 7/10 sometimes down to 5/10." (AR 90).

As part of Bustetter's administrative appeal, Standard hired Dr. Deborah Syna to review Bustetter's additional medical records. (AR 71-81). In her report dated June 7, 2017, Dr. Syna concluded that Bustetter was "restricted to sedentary-level activity" due to his cervical myelitis and gait disturbance. (AR 75). Dr. Syna also found that Bustetter had the capacity for occasional standing and walking with the assistance of a cane and could lift or carry five to ten pounds using one arm. (Id. ). Furthermore, Dr. Syna concluded that Bustetter was able to reach and finger "continuously" on the right, but only "frequently" on the left due to carpal tunnel syndrome. (Id. ).

Standard consulted again with its vocational expert, Mr. Petersen, who opined that, when considering Dr. Syna's findings, Bustetter was capable of performing the sedentary occupations of motor vehicle dispatcher, collection clerk, and order clerk. (AR 615). Petersen further concluded that Bustetter's physical limitations either posed no impediment to his completion of the job requirements or could be accommodated at the workplace. (Id. ). For example, he stated that "[a]ny lifting required could either be performed with one arm or be accommodated" and "[p]ostural change could be accommodated ... with the provision of a...