Givens v. the Prudential Ins. Co. of Am.

778 F.Supp.2d 1011

David GIVENS, Plaintiff,

v.The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.

Case No. 09–4135–CV–C–NKL.

United States District Court, W.D. Missouri, Central Division.

Jan. 20, 2011.

Talia Ravis, Leawood, KS, for Plaintiff.

Richard J. Pautler, Thompson Coburn, St. Louis, MO, Michael G. Monnolly, Sean K. McMahan, Alston & Bird, LLP, Atlanta, GA, for Defendant.

ORDER

NANETTE K. LAUGHREY, District Judge.

Plaintiff David Givens (“Givens”) claims that the Prudential Insurance Company of America (“Prudential”), wrongfully terminated his benefits under a long-term disability plan (“plan”) in violation of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001, et seq. (“ERISA”). Prudential denies this claim, arguing that Givens was able to be gainfully employed in alternate occupations and, thus, did not qualify for benefits under the plan beyond twenty-four months. Pending before the Court are cross-motions for summary judgment [Docs. # 29; # 30]. For the following reasons, the Court DENIES Prudential's motion for summary judgment [Doc. # 29] and GRANTS Givens' motion for summary judgment [Doc. # 30].

I. Factual BackgroundA. Medco's Long–Term Disability Plan

Givens was employed at Medco as a pharmacy technician, a light duty level occupation. [Doc. # 39, ¶ 1]. The job required pushing a cart, lifting between five and forty-five pounds from carts and shelves, sitting for long lengths of time, and lifting over ten pounds between two to eight times per day. [Doc. # 29–5, at D0293–D0294].

Givens participated in a Medco-sponsored long-term disability plan, which is subject to ERISA, 29 U.S.C. §§ 1001, et seq. The plan is insured by Prudential under group contract number 22283, [Doc. # 39, ¶ 2], and provides benefits to employees if they become disabled. Under the plan, a participant is disabled:

[W]hen Prudential determines that:

[the participant is] unable to perform the material and substantial duties of [his] regular occupation due to [his] sickness or injury; and [he has] a 20% or more loss in [his] indexed monthly earnings due to that sickness or injury.

[Doc. # 29–13, at D0830]. The plan further provides:

After 24 months of payments, [the participant is] disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which [the participant is] reasonably fitted by education, training or experience.

....

Material and substantial duties means duties that: are normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified, except that if [the participant] are required to work on average in excess of 40 hours per week, Prudential will consider [the participant] able to perform that requirement if [the participant] are working or have the capacity to work 40 hours per week.

Regular occupation means the occupation [the participant is] routinely performing when [his] disability begins. Prudential will look at [the participant's] occupation as it is normally performed instead of how the work tasks are performed for a specific employer or at a specific location.

Gainful occupation means an occupation, including self employment, that is or can be expected to provide [the participant] with an income equal to at least 60% of [the participant's] indexed monthly earnings within 12 months of [his] return to work.

Sickness means any disorder of [the participant's] body or mind, but not an inju ry.... Disability must begin while [the participant is] covered under the plan.

Injury means a bodily injury that is the direct result of an accident and not related to any other cause. Injury which occurs before [the participant is] covered under the plan will be treated as a sickness. Disability must begin while [the participant is] covered under the plan.

[Doc. # 29–13, at D0830].

[Prudential] will stop sending [the participant] payments and [a participant's] claim will end on the earliest of the following: (1) ... after 24 months of payments, when [the participant is] able to work in any gainful occupation on a part-time basis but [he] choose[s] not to.” ... (4) The date you fail to submit proof of continuing disability satisfactory to Prudential.

[Doc. # 29–13, at D0837].

B. Givens' Claim History

In March 2004, Givens was involved in a motor vehicle accident. [Doc. # 39, ¶ 7]. In October 2004, Givens stopped working due to pain. [Doc. # 31, ¶ 4]. After applying for and appealing an initially unfavorable decision, Prudential paid Givens short-term disability benefits through April 3, 2005. [Doc. # 31, ¶ 6]. Givens then attempted to return to work, but was unable to perform the duties of his former occupation as a pharmacy technician. [Doc. # 31, ¶ 7]. Givens went out of work on February 24, 2006. [Doc. # 39, ¶ 8]. He applied for long-term disability benefits on August 11, 2006. [Doc. # 31, ¶ 7]. After initially denying Givens' claim in a letter dated November 22, 2006, [Doc. # 31, ¶ 9], Prudential upheld its denial in a letter dated June 14, 2007 in response to Givens' first appeal. [Doc. # 31, ¶ 11].

Givens filed a second appeal on July 9, 2007. [Doc. # 29–9, at D0601]. In support of his appeal, Givens notified Prudential that the Social Security Administration found that he was disabled from March 1, 2006 and was entitled to disability benefits beginning August 2006. [Doc. # 29–9, at D0603–D0610]. On August 1, 2007, Prudential acknowledged receiving this information, [Doc. # 29–10, at D0755], and on September 10, 2007, it notified Givens that Dr. Joann Mace would conduct an independent medical examination as part of Prudential's review of Givens' second appeal. [Doc. # 29–10, at D0749]. In a letter dated October 16, 2007, Prudential approved Givens' claim for long-term disability benefits effective August 23, 2006 after finding that he was “currently disabled from his regular occupation.” [Docs. # 36, ¶ 6; # 31, ¶ 16]. Givens received two years of disability benefits. [Doc. # 39, ¶¶ 9–10].

In March 2008, Prudential reminded Givens that as of August 23, 2008, after twenty-four months of payments, Prudential's definition of disability would change to “unable to perform the duties of any gainful occupation” for which Givens was “reasonably fitted by education, training or experience.” [Docs. # 31, ¶ 18; # 29–10, at D0742]. In its letter, Prudential stated: “A review of the medical records from your providers indicated that reasonable restrictions and limitations would impact your ability to perform your regular occupation; however, our review demonstrates that you have the capacity to return to another occupation for which you are reasonably fitted by your education, training and experience.” [Doc. # 36, ¶ 7 (citing D0743) ]. In a letter dated July 17, 2008, [Doc. # 29–10, at D0733–D0736], Prudential informed Givens that no benefits would be payable beyond August 22, 2008 because the medical evidence did not support a finding that Givens had an impairment that prevented him from performing the material and substantial duties of any gainful occupation for which he was reasonably qualified. [Doc. # 39, ¶ 11]. Prudential indicated in its letter that it based its decision in part on the results of Dr. Joann Mace's September 24, 2007 exam and on the report of a vocational consultant who identified several gainful occupations that Givens could perform. [Docs. # 31, ¶¶ 22, 24; # 29–10, at D0734].

On March 11, 2009, Givens appealed Prudential's decision to terminate his benefits. As part of his appeal, Givens submitted updated medical information including notes from office visits with Dr. Silney from December 4, 2008 to January 16, 2009, [Doc. # 29–6, at D0404–D0415], and a report from rehabilitation consultant Lesa Keen. [Doc. # 29–6, at D0450–0458]. On April 17, 2009, Prudential denied Givens' appeal. Prudential explained that an independent physician had reviewed the file and determined that Givens did not have any functional impairment from August 23, 2008 onward, nor did he have any medically supported restrictions and limitations. [Doc. # 39, ¶ 12]. The physician also opined that Givens' self-reported complaints of pain were not consistent with or supported by the diagnostic testing results or physical examination findings. Prudential noted that Givens received Social Security disability benefits but explained that approval for such benefits did not automatically result in approval for disability benefits under the Plan. [Doc. # 39, ¶ 12]. Givens then filed this lawsuit on July 16, 2009. [Doc. # 1].

C. Givens' Medical History and Reviews

Approximately each month since his March 2004 car accident through the date of his last records on file, Givens has been treated and examined by physicians, physician assistants (“PA–C”), chiropractors, radiologists, neurologists, or other specialists.

1. Medical History and Reviews through October 2007

On March 15, 2004, Givens saw Liza Bryant, PA–C, who prescribed ibuprofen to help Givens manage the pain in his right low back, right leg, hip, knee, and ankle. [Docs. # 31, ¶¶ 43–45; # 29–4, at D0207]. On March 23, 2004, Givens was examined by Lance Alee, MPT, upon recommendation by PA–C Bryant. [Doc. # 31, ¶ 46]. The exam revealed moderate to severe tenderness over the right SI region, and moderate hypertonicity of the lumbar spine. Givens was unable to sit or bend for more than five to ten minutes without increasing symptoms, lost lumbar extension, and suffered pain with weightbearing through his low back, right SI region. [Doc. # 31, ¶ 49]. One week later on March 30, 2004, Givens followed up with PA–C Bryant, who noted that Givens continued to experience low back pain and a stabbing pain to his buttocks region. [Doc. # 31, ¶ 50]. PA–C Bryant ordered an x-ray of Givens' back and instructed him to follow-up if physical therapy did not resolve his back pain. [Doc. # 31, ¶ 51].

On April 8, 2004, Givens followed-up with PA–C...