Smith v. Cross

SHARON CHARLES SMITH, Plaintiff, v. THE AMERICAN NATIONAL RED CROSS;LIFE AND HEALTH BENEFITS PLAN OF THE AMERICAN RED CROSS, Defendant.

Case No: 6:18-cv-0042-RBD-DCI

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

February 21, 2019

REPORT AND RECOMMENDATION

This cause comes before the Court for consideration without oral argument on the following motions:

MOTION: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 44)

FILED: October 31, 2018

THEREON it is RECOMMENDED that the motion be GRANTED.

MOTION: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 45)

FILED: October 31, 2018

THEREON it is RECOMMENDED that the motion be DENIED.

I. BACKGROUND

This case stems from Defendant's decision to discontinue Plaintiff's long term disability ("LTD") benefits. Plaintiff claims that she is entitled to LTD benefits and filed this action to recover those benefits. Doc. 1. The parties have each moved for summary judgment. Docs. 44, 45. Upon review, the undersigned respectfully recommends that Defendant is entitled to summary judgment.

a. The Plan

Plaintiff worked as a "Project Management Specialist" for The American National Red Cross ("Red Cross") in 2004. She participated in a LTD benefits plan (the "Plan") that is funded by Red Cross. Doc. 44 at 1; Doc. 45, at 1. Red Cross delegated claims administration duties to Liberty on January 1, 2017. Doc. 45 Ex. A, at 48; 52. The Plan provides, in relevant part, as follows:

Total Disability

You are deemed to be totally disabled while either of the following applies to you:

• In the first 24 months of a period of total disability: You are not able, solely because of injury or disease, to work at your own occupation.

• After the first 24 months of a period of total disability: You are not able, solely because of injury or disease, to work at any reasonable occupation. (This is any gainful activity for which you are, or may reasonably become, fitted by education, training or experience. It does not include work under an approved rehabilitation program.)

. . .

Period of Total Disability

A period of total disability starts on the first day you are totally disabled. You must be under the care of a physician.

. . .

Your period of total disability ends on the first to occur of:

• The date you are not totally disabled, . . . [or]

• The date you fail to give proof that you are still totally disabled.

Doc. 45 Ex. A, at 68-69.

Plaintiff ceased her employment with Red Cross after she was injured in a motor vehicle accident in October of 2004. Doc. 45, at 1. She became totally disabled as a result of her low back pain and began receiving benefits on April 23, 2005. R. 15, 471-75. Plaintiff received benefits until Liberty determined that she was no longer disabled on April 3, 2017. R. 170-72.

b. Plaintiff's Medical History Pre-Termination of Benefits

In April 2005, Dr. Gary Dennis ordered an MRI of Plaintiff, finding "[o]steopenia," "[d]egenerative disk disease at L4-5 and L5-S1," and "[a]nterior displacement of L4 on L5 with no evidence of instability between flexion and extension." Doc. 45 Ex. C, at 1. He then performed a "bilateral medial facetectomy and forminotomy, L4-5 and L5-S1, [and] laminectomy L5." Doc. 45 Ex. D, at 135-138, 171-72. In August 2005, Dr. Dennis ordered another MRI. Doc. 45 Ex. C, at 2-3. He found that Plaintiff suffered "[m]ild diffuse degenerative disease" and a "C5-6 bulge." Doc. 45 Ex. C, at 2-3. Plaintiff began seeing Dr. Carol Stewart in 2006. R. 226-250. Dr. Stewart evaluated Plaintiff and found, among other things, that Plaintiff exhibited "L-5 tenderness" and decreased ambulation. R. 231. She also found that Plaintiff had the ability to perform sedentary work activity, which includes moderate limitation of functional capacity. R. 249.

From 2007 to 2010, Plaintiff continued treating with Dr. Dennis and began treating with Dr. Charles Mosee. Dr. Dennis issued an attending physician statement in which he concluded that Plaintiff was "100% permanently disabled." R. 274. Likewise, Dr. Mosee issued multiple attending physician statements concluding that Plaintiff was "permanently and totally disabled." R. 286, 327, 454. After an MRI, Dr. Mosee found "L5-S1 laminectomy with residual lateral facets and lateral disc bulging causing neural foramina exit narrowing and lateral recess narrowing" with"[a]dequate canel decompression." Doc. 45 Ex. C, at 4-5. Plaintiff was also awarded Social Security Disability Benefits on April 7, 2009. R. 317-22.

Plaintiff had several tests performed between 2010 and 2015. In April 2011, MRIs of the lumbar and cervical spines revealed "anterior bulging disc at the C5-C6 level," "posterior central bulging disc at the C5-C6 level with bilateral foraminal narrowing and nerve root compression," "[p]aracentral herniated distal left at the L4-L5 level extending into the neuroforamen with crescent of the left L4 nerve root," and "[p]aracentral herniated distal right at the L5-S1 level extending into the neural foramen with compression of the right L5 nerve root and the S1 nerve root in the lateral recess." R. 334-35. At her MRI on September 25, 2013, her MRI showed:

Marked disc space narrowing at L4-L5 and L5-S1 with degenerative Modic II endplate changes . . . . Laminectomy defects are seen. There is probably right lateral HNP at L5-S1. Mild degenerative anterolisthesis of L4 on L5 (5 mm) without spondylolysis. At L3-L4 there is disc space narrowing with mild annular bulge. There are marked degenerative changes in the facet joints with fluid seen bilaterally right greater than left.

R. 350-51.

On February 6, 2014, Plaintiff underwent a spine standing scoliosis series examination. Impressions from that examination noted "[p]ositive sagittal balance with 26 degrees of pelvic tilt consistent with retroversion" and "13 degrees difference between pelvic incidence and lumbar lordosis." R. 149-50. From October to December 2014, Plaintiff underwent a nerve conduction study, an x-ray of the lumbar spine, an MRI, and CT scan of her lumbar spine at the Deuk Spine Institute. R. 91-145. These tests revealed chronic S1 radiculopathy, scoliosis, spondylolisthesis, severe disc space narrowing, mild anterolisthesis, degenerative changes in the facet joints, and annular bulging. R. 102, 147, 148, 152.

Plaintiff treated with Dr. Raguindin from January to December 2015. Doc. 45 Ex. G. Dr. Raguindin completed an attending physician statement, noting Plaintiff's "lumbar degenerativedisk disease" and "low back pain" with "numbness in [her] legs." He also noted, with respect to Plaintiff returning to work, that she "needs re-eval from occupational medicine." R. 433.

On April 20, 2016, Plaintiff was admitted to the emergency room with complaints of "chronic back pain." R. 74. She was discharged and established care with Dr. Ashok Shah on April 29, 2016. R. 195. Plaintiff visited with Dr. Shah three more times through February 2, 2017. R. 188-194. He assessed Plaintiff as having "degenerative joint disease" and "[l]ow back pain." R. 191. During his physical examination of Plaintiff, he assessed her range of motion around her neck as "within normal limits," as well as her appearance as "normal." He also noted that, as of February 2, 2017, "all medical problems [were] adequetaly [sic] controlled." R. 189.

c. Liberty's Review and Denial

On March 6, 2017, Liberty requested medical records from Dr. Shah and Dr. Raguindin. R. 204-06; 207-09. On that same date, Liberty notified Plaintiff via letter that it was "currently reviewing eligibility for continued disability benefits, and [was] in need of additional information." R. 211. They informed Plaintiff that they had "requested medical records to support [Plaintiff's] claim for disability from Dr. Shah and Dr. Raguindin." R. 211. They also requested that Plaintiff provide "[o]ffice treatment notes, test results, operative reports, prescription histories, and treatment plans from March 1, 2016 through the present from Dr. Shah and Dr. Raguindin" to assist with the review. R. 211. Further, Liberty asked that Plaintiff "have [any other attending physicians or specialists that they were unaware of] forward all medical records pertinent to [Plaintiff's] disability within the timeframe" given. R. 211.

In a report dated March 29, 2017, Dr. William Jaffe reviewed medical records from Dr. Shah and summarized his findings. R. 159-161. He noted:

The claimant is a 57-year-old female whom we are asked to comment and determine if her low back pain is causing any functional impairment and, thus, anysupported restrictions or limitations. Per my phone conversation with Dr. Shah on 3/27/17 at approximately 11 a.m. MST, he states there is no functional impairment and, thus, no restrictions or limitations from an internal medicine perspective. Specifically, when questioned about her back pain, he states this is not causing any functional impairment. Thus, we agree there were no restrictions or limitations.

Per office note by Dr. Shah on 4/29/16, physical examination is noted to be normal. The musculoskeletal is normal. With regards to her low back pain, he states she is on narcotics by the pain clinic and recommends evaluation with neurosurgery. Per office note by Dr. Shah on 7/29/16, with regards to her low back pain, he states she currently is on over-the-counter medications. Physical examination is noted to be normal. Per office note by Dr. Shah on 2/2/17, he states that all of her medical problems are adequately controlled.

R. 160. In reliance on Dr. Jaffe's report, Liberty issued a letter on April 3, 2017, notifying Plaintiff that her LTD benefits were being terminated as of that date. R. 170-72.

Plaintiff appealed Liberty's decision on June 14, 2017 and explained that there was a "misunderstanding" related to Dr. Shah's review of the medical records submitted to Dr. Jaffe. R. 73. With her appeal, she included records from an emergency room visit on April 20, 2016, a questionnaire completed by Plaintiff on April 26, 2016 at Spine, Orthopedics and...