Lesser v. Reliance Standard Life Ins. Co.

385 F.Supp.3d 1356

Arthur F. LESSER, IV, Plaintiff,

v.RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant.

CIVIL ACTION FILE NO. 1:18-CV-824-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed June 3, 2019

Filed June 4, 2019

Heather K. Karrh, Rogers & Hofrichter & Karrh, LLC, Fayetteville, GA, Paul Joseph Sharman, The Sharman Law Firm, LLC, Alpharetta, GA, for Plaintiff.

Joshua Bachrach, Pro Hac Vice; Wilson Elser Moskowitz Eleman & Dicker, Philadelphia, PA, Parks Kalervo Stone, Wilson Elser Moskowitz Edelman & Dicker, Atlanta, GA, for Defendant.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This is an ERISA action to recover benefits under a group long term disability plan. It is before the Court on the Plaintiff Arthur Lesser, IV's Motion for Judgment on the Administrative Record [Doc. 28] and the Defendant Reliance Standard Life Insurance Company's Motion for Summary Judgment [Doc. 29]. For the reasons set forth below, the Plaintiff's Motion for Judgment on the Administrative Record [Doc. 28] is GRANTED and the Defendant's Motion for Summary Judgment [Doc. 29] is DENIED.

I. Judgment on the Administrative Record

The Plaintiff has moved for judgment on the administrative record. The Defendant has moved for summary judgment. Both parties rely exclusively on the administrative record. "When a decision is based on the agreed-upon administrative record, judicial economy favors using findings of fact and conclusions of law, not Fed. R. Civ. P. 56, to avoid an unnecessary step that could result in two appeals rather than one."¹ Therefore, Federal Rule of Civil Procedure 52(a)(1) provides the appropriate legal vehicle for adjudicating this case. In conducting a trial by papers pursuant to Federal Rule of Civil Procedure 52(a)(1), the Court must "find the facts specially and state its conclusion of law separately. The findings and conclusions may be stated on the record after the close of evidence or may appear in an opinion or a memorandum of decision filed by the court."² The Court's findings of fact and conclusions of law are set forth below.

II. Findings of Fact

A. Long Term Disability Plan

The Defendant Reliance Standard Life Insurance Company contracts with Plaintiff Arthur Lesser IV's former employer, Johnson Outdoors, Inc., to provide long term disability benefits to its employees.³ The Defendant must pay monthly benefits under the Plan when it determines that the claimant:

(1) is "Totally Disabled" within the meaning of the Plan,

(2) is under the regular care of a physician,

(3) has completed a 180-day elimination period, and

(4) has submitted "satisfactory proof of Total Disability" within 90 days of the date of loss or as soon as reasonably possible.⁴

A claimant is "Totally Disabled" under the Plan when he is unable to "perform the material duties of his/her Regular Occupation."⁵ A claimant's "Regular Occupation" is the one that he is "routinely performing when Total Disability begins."⁶ The Defendant determines the material duties of the claimant's occupation by looking to how it is performed in the national economy.⁷

B. Claim History

The Plaintiff worked as a software engineer for Johnson Outdoors, Inc. from May 16, 2011 until February 12, 2016.⁸ After his last day at work, the Plaintiff successfully filed for leave under the Family Medical Leave Act and overlapping short term disability.⁹ Dr. Thomas DiFulco, the Plaintiff's long-time primary care provider, listed the Plaintiff's diagnoses as (1) severe daytime hypersomnolence, (2) memory loss, (3) obstructive sleep apnea, (4) male hypogonadism, (5) pituitary dysfunction, (6) hypothyroidism, (7) mild brain atrophy, and (8) multifactorial generalized fatigue.¹⁰ He opined in a certification form attached to the application that the Plaintiff "should not work due to inability to stay awake and inability to perform mental functions [that the] job requires."¹¹

On June 23, 2016, the Plaintiff applied for long term disability for the same set of disabling conditions.¹² In a statement attached to the application, Dr. DiFulco opined that the Plaintiff's symptoms had worsened over time, culminating in the Plaintiff's inability to work as of February 9, 2016. He stated that the Plaintiff could only occasionally perform physical job-related tasks over the course of an eight-hour work day and that he was moderately to extremely limited in his ability to perform cognitive tasks.¹³ Dr. Gena Mastrogianakis, another of the Plaintiff's treating physicians, also submitted a statement corroborating the Plaintiff's diagnoses of "hypersomnolence" and "severe fatigue" and recommending that the Plaintiff remain out of work indefinitely while receiving treatment.¹⁴

The Defendant initially approved the Plaintiff's claim and paid the Plaintiff benefits from August 13, 2016 to October 13, 2016.¹⁵ On September 8, 2016, a registered nurse identified in the administrative record as "A. Purtell" reviewed the Plaintiff's file and concluded that the medical records did not indicate what had "caused the impairment" on the date of loss.¹⁶ The nurse reviewed the file again on November 11, 2016, and came to the same conclusion.¹⁷ On January 27, 2017, a second registered nurse, Geiza R. Glean, reviewed recently received medical records and recommended follow up to obtain the results of the Plaintiff's neuropsychological testing and to determine whether the Plaintiff was receiving psychiatric treatment.¹⁸ On February 9, 2017, a third registered nurse, Jane Sweeney, reviewed the latest medical records received from the Plaintiff, including the results of his neuropsychological testing, and concluded that the medical records did not substantiate the Plaintiff's reports of cognitive dysfunction.¹⁹ In a letter dated February 21, 2017, the Defendant informed the Plaintiff that his benefits had been terminated retroactively as of October 13, 2016.²⁰ The Defendant adopted Ms. Sweeney's conclusions more or less verbatim:

Despite your report of continued hypersomnia, your extensive testing to date has been unrevealing as to an etiology and you remained opposed to using recommended medications. In addition, there is a report of continuing brain fog, however your Neuropsychological test is not suggestive of cognitive dysfunction. Although there is documentation of your high levels of anxiety which is controlled with current medications, there is no documentation of any ongoing mental health treatment. Based on the totality of information it remains unclear what changed at or near the date of loss.²¹

The Plaintiff appealed the Defendant's benefits decision on July 31, 2017.²² The Plaintiff attached medical records from various specialists, as well as the results of a Functional Capacity Evaluation indicating that the Plaintiff was unable to perform the physical tasks associated with his job. In response, the Defendant arranged for the Plaintiff to undergo an independent medical examination with a neurologist, Dr. David Whitcomb.²³ The Defendant denied the Plaintiff's appeal in a letter dated November 20, 2017.²⁴ The Defendant relied primarily on Dr. Whitcomb's opinion that "[f]rom a purely physical standpoint, I believe [the Plaintiff] can work." The Defendant also relied on the opinion of its in-house vocational rehabilitation specialist, Carol S. Vroman, who reviewed Dr. Whitcomb's report and concluded that the Plaintiff could perform the material duties of a software engineer.²⁵ This appeal followed. The Plaintiff has exhausted his administrative remedies.

C. Medical History

The Plaintiff was diagnosed with obstructive sleep apnea in 2006 and began using a CPAP machine.²⁶ The Plaintiff reports that in 2008 he began experiencing renewed symptoms of fatigue and daytime sleepiness despite compliance with his CPAP regimen.²⁷ The Plaintiff claims that his symptoms worsened over the years despite efforts to treat them, and that in 2015 his symptoms had become so severe that he was unable to adequately perform his job.

The Plaintiff's principal diagnosis is hypersomnolence, or excessive daytime sleepiness.²⁸ The administrative record contains visit notes, test results, and other medical records from the Plaintiff's various providers. It is clear from these records that the Plaintiff is highly motivated to determine the etiology of his hypersomnolence, and as such has seen multiple specialists in fields ranging from cardiology to neurology. The Court will briefly summarize the treatment history of those providers that feature prominently in the administrative record and in the parties' briefing.

1. Dr. Thomas DiFulco, Internal Medicine

Dr. DiFulco has treated the Plaintiff since 2008. In late 2015, Dr. DiFulco ordered a battery of tests to pin down the source of the Plaintiff's fatigue, daytime sleepiness, and cognitive impairments. Blood tests conducted in October, November, and December of 2015 indicated that the Plaintiff had high cholesterol and low testosterone.²⁹ An MRI performed in January of 2016 revealed mild atrophy of the Plaintiff's frontal and parietal lobes.³⁰ In February and June of 2016, Dr. DiFulco submitted statements in support of the Plaintiff's short- and long-term disability claims, opining that the Plaintiff's hypersomnolence and various other diagnoses rendered the Plaintiff unable to work.³¹ In June of 2016, Dr. DiFulco ordered a blood test to determine whether the Plaintiff had Lyme disease, which came back negative.³² In September of 2016, Dr. DiFulco ordered further bloodwork that indicated that the Plaintiff's testosterone remained low.³³

2. Dr. Alice Azzalin, Endocrinology

In February of 2016, Dr. DiFulco referred the Plaintiff to Dr. Alice Azzalin, an endocrinologist, for "evaluation and management of possible hypogonadism."³⁴ Dr. Azzalin ordered lab tests that confirmed that the Plaintiff has hypogonadism.³⁵ It is unclear from Dr. Azzalin's notes whether, in her view, the Plaintiff's hypogonadism contributed to the Plaintiff's fatigue or daytime...