Chisholm v. Guardian Life Ins. Co. of Am.

449 F.Supp.3d 619

Wendy CHISHOLM

v.The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

CIVIL ACTION NO.: 18-00728-BAJ-RLB

United States District Court, M.D. Louisiana.

Signed March 30, 2020

J. Price McNamara, Law Office of J. Price McNamara, Baton Rouge, LA, Madison Tate Donaldson, Pro Hac Vice, Marc Whitehead & Associates, LLP, Houston, TX, for Wendy Chisholm.

Maura Zivalich Pelleteri, Amy M. Malish, Pugh, Accardo, Haas, Piadecker & Carey LLC, New Orleans, LA, for the Guardian Life Insurance Company of America.

RULING AND ORDER

BRIAN A. JACKSON, DISTRICT JUDGE

Before the Court are cross-motions for summary judgment filed by Defendant, The Guardian Life Insurance Company of America ("Defendant" or "Guardian"), and Plaintiff, Wendy Chisholm ("Plaintiff" or "Chisholm"). Both Defendant's Motion for Summary Judgment, (Doc. 20),¹ and Plaintiff's Motion for Summary Judgment, (Doc. 22) ,² request that the Court grant summary judgment pursuant to Federal Rule of Civil Procedure 56 regarding Defendant's decision to deny Plaintiff long term disability benefits. Oral argument is not necessary. For the reasons stated herein, Defendant's Motion for Summary Judgment, (Doc. 20) , is GRANTED IN PART and DENIED IN PART , and Plaintiff's Motion for Summary Judgment, (Doc. 22) , is DENIED .

I. BACKGROUND

Plaintiff was an employee of Delta Career Education Corporation ("Delta"), which sponsored an employee welfare benefit plan which included a group disability benefits policy, funded and administered by Defendant and governed by the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. ("ERISA"). (Doc. 1, at ¶¶ 8, 9, 16). Since January 17, 2008, Plaintiff worked for Delta as a Medical Assistant. (Doc. 1, at ¶ 16). In 2009, Plaintiff was diagnosed with Dercum's disease, a painful disease that causes multiple tumors to grow on and impinge upon peripheral nerve endings. (Doc. 22–1, at p. 8).

Plaintiff became disabled on May 7, 2009 and applied for and was granted short term disability benefits. (Doc. 1, at ¶¶ 19-21). Plaintiff then sought long term disability benefits ("LTD") from Defendant, which Defendant approved and paid under the Plan's 24-month "own occupation" provision. On September 19, 2016, Defendant advised Plaintiff that LTD benefits would cease on October 4, 2016, because Defendant's ongoing review revealed that Plaintiff was capable of full-time sedentary work. (Doc. 1, at ¶¶ 22-23). Plaintiff appealed Defendant's decision to deny LTD benefits, and Defendant informed Plaintiff on January 5, 2018 that she would no longer receive LTD benefits because the medical evidence did not support functional limitations or restrictions that would prevent Plaintiff from performing the major duties of any gainful work on a full-time basis. (Doc. 1, at ¶ 36).

A. The Disability Plan

Defendant issued Group Plan No. G-00351631-HC ("the Plan"), of which Delta was a participating employer. (Doc. 16-1, at pp. 1-312). The relevant part of the Plan provides:

Schedule of Benefits

Own Occupation Period

The first 24 months of benefit payments from this plan.

When Benefits End

When Payments End : A covered person's benefits from this plan will end on the earliest of the dates shown below:

(a) The date he or she is no longer disabled.

(b) The date he or she earns, or is able to earn, the maximum earnings allowed while disabled under this plan.

(c) The date he or she is able to perform the major duties of his or her own occupation on a full-time basis with reasonable accommodation that an employer is willing to provide.

(Doc. 16-1, at pp. 167, 227). The Definitions Section of the Plan provides in relevant part as follows:

Disability or Disabled : These terms mean a covered person has physical, mental or emotional limits caused by a current sickness or injury. And, due to these limits, he or she is not able to perform the major duties of his or her own occupation or any gainful work as shown below:

(1) During the elimination period and the own occupation period, he or she is not able to perform, on a full-time basis, the major duties of his or her own occupation.

(2) After the end of the own occupation period, he or she is not able to perform, on a full-time basis, the major duties of any gainful work.

Gainful Occupation or Gainful Work : Work for which a covered person is, or may become, qualified by: (a) training; (b) education; or (c) experience. When a covered person is able to perform such work on a full-time basis, he or she can be expected to earn at least 60% of his or her indexed insured earnings , within 12 months of returning to work.

(Doc. 16-1, at pp. 247-248).

B. Plaintiff's Claim and Defendant's Denial of LTD Benefits

Plaintiff was diagnosed with Dercum's disease in 2009, and her last day of work was May 6, 2009. Defendant received Plaintiff's claim for LTD benefits on May 15, 2009. (Doc. 16-7, at p. 222).

Dr. Brown-Manning stated in a claim form that Plaintiff was unable to work and that a release to return to work was pending a specialist evaluation. (Doc. 16-7, at pp. 177-182). LTD benefits were approved beginning August 5, 2009. (Doc. 16-7, at p. 138).

On December 17, 2009, Dr. Cavell, an internal medicine specialist, advised Defendant in an Ongoing Physician's Statement of Disability ("OPSD") that Plaintiff suffered from multiple sites of pain and was being treated with analgesics, antidepressants and surgical incision of nodules. (Doc. 16-7, at pp. 100-101). Her condition was diagnosed as "retrogressed", with a "poor" prognosis, and a Class 5 Physical Limitation assignment. (Id. at p. 101). Dr. Cavell anticipated that Plaintiff would never be released to work. (Id. ). In an OPSD issued in August 2010, Dr. Cavell confirmed the prognosis. (Doc. 16-6, at p. 152).

On October 29, 2010, Plaintiff was awarded Social Security Disability benefits ("SSD"). (Doc. 16-6, at pp. 154-155). The Social Security Administration ("SSA") notified Plaintiff that she became disabled on May 5, 2009, and the award of disability was "totally favorable". (Id. ). Defendant received an SSA Notice of Award on December 9, 2010 that found that Plaintiff became disabled on May 5, 2009 and was entitled to benefits beginning November 2009. (Doc. 20-1, at p. 5).

On April 21, 2011, Dr. Cavell completed a Physical Capabilities Evaluation ("PCE") that indicated that Plaintiff was capable of sedentary work. (Doc. 16-6, at p. 110). Plaintiff was also capable of lifting/carrying and pushing/pulling up to five pounds frequently and up to ten pounds occasionally. (Id. , at p. 109). Dr. Cavell also noted that Plaintiff had the ability to perform simple grasping, fine manipulation and pushing/pulling arm controls with both hands but was unable to firmly grasp with either hand. (Id. ). Plaintiff was found to be capable of operating desk machines, such as a keyboard and stapler. (Id. , at p. 110). In his Attending Physician's Statement ("APS") of the same date, Dr. Cavell noted that Plaintiff suffered from multiple painful tumors and was again assessed a Class 5 Physical Impairment. (Doc. 16-6, at p. 113). Interestingly, Dr. Cavell again opined that Plaintiff would never be released to work. (Id. ).

In a PCE and an APS dated July 25, 2011, Ashley Olivier, a family nurse practitioner, explained that Plaintiff continued to suffer from "multiple painful tumors" and assessed Plaintiff with Class 5 Physical Limitations. (Doc. 16-6, at pp. 74-75). The PCE reflected that Plaintiff was capable of sitting, standing and walking for one hour each at a time and for a total of two hours during an average workday. (Doc. 16-6, at p. 72). She also opined that Plaintiff was capable of lifting/carrying and pushing/pulling up to five pounds frequently and up to ten pounds occasionally. (Id. ). Plaintiff was not capable of firm grasping, operating desk machines, or precise manual dexterity and was unable to work due to the permanent restrictions. (Id. ). On the basis of this evaluation, Defendant determined that Plaintiff was functionally limited from performing gainful work on a full-time basis and continued LTD benefits. (Doc. 16-6, at p. 32).

On July 26, 2011, Defendant advised Plaintiff that the Plan's definition of "disability" changed from "Own Occupation" to any "Gainful Work", effective August 5, 2011. (Doc. 16-6, at pp. 67-68).

Plaintiff began treatments with Dr. Kevin Ingram in 2012. On January 20, 2012, Dr. Ingram completed an OPSD indicating Plaintiff suffered from multiple painful tumors and that her condition was unchanged, assessing her with a Class 5 Physical Impairment. (Doc. 16-6, at pp. 8-9). Dr. Ingram anticipated that Plaintiff would never be released to work. (Id. ).

An April 23, 2013 OPSD reflected Plaintiff suffered from multiple painful tumors and that her condition was unchanged. She was then assessed with a Class 5 Physical Impairment. (Doc. 16-5, at pp. 115-116.) Also on April 23, 2013, Dr. Ingram completed a PCE indicating that Plaintiff was capable of sitting, standing and walking for one hour each at a time but not capable of performing these activities for any duration during an average workday. (Doc. 16-5, at pp. 119-120). Plaintiff was also not capable of working at heights, operating heavy machinery, operating desk machines, performing precise manual dexterity, exposure to marked temperature changes or dust, fumes, gases or chemicals. (Id. ).

Dr. Ingram completed a PCE on February 18, 2015, describing similar capabilities as those included in the April 23, 2013 PCE and provided Defendant with medical records from September 16, 2013 through February 18, 2015. (Doc. 16-5, at pp. 81-101).

As a part of Defendant's ongoing review, Charlotte Broderick, a registered nurse, contacted Dr. Ingram's office and requested additional information regarding Plaintiff's condition. (Doc. 16-5, at pp. 67-78). On April 28, 2015, Dr. Ingram's office reported that Plaintiff had over 400 tumors from head to toe and that several of the tumors had been excised. (Doc. 16-5, at pp....