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Sheryl Heim v. Life Insurance Company of North America

March 21, 2012

SHERYL HEIM
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA



The opinion of the court was delivered by: Ditter, J.

MEMORANDUM

Plaintiff, Sheryl Heim, seeks payment of long-term disability benefits by defendant, Life Insurance Company of North America ("LINA"), pursuant to ERISA section 502(a)(1)(B). The parties' cross-motions for summary judgment are before me. For the reasons that follow, I will deny LINA's motion, grant Heim's motion in part, and remand the case to LINA to determine benefits under the "any occupation" standard.

I. FACTS

Heim participated in a long-term disability ("LTD") benefits plan sponsored by her employer, the Reading Hospital and Medical Center. LINA issued the LTD policy and administered claims for LTD benefits. Pursuant to the LTD policy, an employee is considered disabled because of sickness if she is unable to perform the material duties of her regular job and unable to earn eighty percent or more of her "indexed earnings" from working in her regular job. After disability benefits have been payable for twenty-four months, an employee will be considered disabled only if she is unable to perform the material duties of any occupation for which she may reasonably become qualified based on education, training or experience.

Heim worked as a nurse at the Reading Hospital beginning in 1996 and served as a cardiac rehabilitation nurse from 2001 until she stopped work on July 28, 2008. She filed the claim at issue for LTD benefits in October 2008. At the time of her claim, she suffered from Sjogren's syndrome, a chronic inflammatory autoimmune disease that is characterized by dryness of mucous membranes especially of the eyes and mouth and by infiltration of the affected tissues by lymphocytes. This syndrome is often associated with rheumatoid arthritis. Heim ceased work due to fatigue, polyarthralgia (pain in multiple joints), weakness and cognitive complaints.

A. Initial Claim

Heim submitted various supporting documents with her application for benefits. In her letter to LINA, she explained her twenty-nine-year history of autoimmune disease and Sjogren's Syndrome. She noted that in 1981 "the onset of profound relentless fatigue arthralgias, myalgias*fn1 and low grade fevers" prevented her from working full-time and she consequently reduced her hours to 24-40 per week.

Heim reported severe fatigue and pain in June 2008. She saw her primary care physician who conducted an ANA test*fn2 that showed levels of 1:1280, an increase from her May 2007 test result of 1:80. He referred Heim to her rheumatologist, Dr. David L. George, who had been treating Heim since at least June of 2002.*fn3

Heim provided LINA with Dr. George's notes of her office visits. At her June 2008 visit, Dr. George noted it had been over a year since he had last seen Heim and that she had "worsening of previous symptoms of fatigue, arthralgias [joint pain], weakness, as well as new cognitive symptoms." He recorded mildly reduced sensation in her fingers and toes and observed that she had "marked gel in the hips and knees, but no upper body stiffness." He noted her specific examples of memory problems and that she was trying to take walks to build up her stamina but could walk a maximum of one mile. He stated she had a "markedly positive ANA 1:1280 but with normal sedimentation rate and CRP."*fn4 He prescribed Inderal for tremor control on work-days, Alprazolam as-needed for anxiety, 40 mg of Prednisone, an antiinflammatory and immunosuppressant, and dietary supplements of Centrum tablets and CoQ10.

Heim was seen by Dr. George twice in July of 2008. At the earlier appointment, he noted that Heim "had marked fatigue, arthralgias, and cognitive impairment [with] problems organizing and with short-term memory." She relayed trouble concentrating, organizing, and problems with short-term memory persisted, but Dr. George noted there was some improvement in symptoms from her last visit attributed to the Prednisone. Dr. George presumed an "immune mediated cause of her current symptoms" and prescribed 50 mg of Imuran per day to be increased to 75mg daily after one week.*fn5 He also tapered her Prednisone to 30mg and then to 25mg daily.

Heim had an MRI of her brain on July 2, 2008. Dr. George noted that "[a]bnormal CNS MRI was observed showing periventricular white matter abnormalities." Heim reported difficulty with thinking, concentration and organization and stated she didn't think she could work anymore. Dr. George noted that she "continues to have problems with marked fatigue, arthralgias, cognitive difficulties which is making daily function most difficult. She is considering applying for disability."

In August of 2008, she reported continued fatigue, but with several days of feeling good and less aching in her knees. However, at her appointment she felt weak and unsteady which Dr. George noted was "not vertiginous." He noted her mildly reduced sensation in her fingers and toes and her unsteady Romberg (test of equilibrium where patient stands with feet together and eyes closed). He increased her dosage of Imuran from 75mg to 100mg per day and continued to taper Prednisone.

In addition to Dr. George's office visit notes, Heim also provided LINA with the July 2, 2008 MRI report of her brain. The report noted "foci of increased signal intensity within the periventricular white matter" and described this as a "nonspecific finding." In addition, she submitted a medical request form completed by Dr. George that noted her diagnoses as polyarthralgia, Sjogren's syndrome, cognitive impairment, and fatigue. He stated she was unable to return to work due to cognitive problems, citing trouble with memory and completing tasks. He did not discuss any physical limitations.

Heim also completed LINA's "Activities of Daily Living Questionnaire." She stated she lives in a single-story house and is married. She indicated that she is able to drive short distances of less than 30 miles and that she: cooks one to two hours a day, two to three days per week; cleans for four hours one day each week; does laundry for four hours one day each week; and shops for one hour each week

Heim attached two single-spaced pages addressing the questions of why she cannot work and what she discussed with her physician regarding her ability to work. She noted that she has very dry eyes that are worse while at work, has had to push herself to keep working over the past year, has experienced exhaustion and an inability to do anything when she comes home from work or on her days off, and is unable to keep up with household chores. She noted problems concentrating and remembering beginning in June 2008 and that she gets overwhelmed. Heim also provided specific examples of her fatigue and pain and noted that she had applied for Social Security. She concluded:

I have worked having this disease since 1980 despite neuropathies, dry eye, dry mouth, muscle and joint pain, profound fatigue, essential tremor and more recently hearing loss and cognitive changes. My condition has been worsening since the summer of 2007. Since the onset of the flare-up of my disease in June 2008, I can no longer meet the demands of a job with the physical problems I have.

On October 26, 2008, prior to LINA's determination of her claim, the Social Security Administration found her to be totally disabled and awarded benefits, a notably expeditious determination in a case based on subjective symptoms.

LINA denied Heim's claim on December 22, 2008, stating "the medical information does not support restrictions and limitations which would preclude you from performing your regular occupation." The letter summarized the medical information from Dr. George, noting that Heim was "experiencing worsening fatigue, arthralgias, and some cognitive difficulties." However, LINA found that "the examination findings provided by Dr. George do not include any documentation of neuropsychological testing that would provide clinical evidence of your functional impairment. There are no functional deficits to demonstrate a cognitive loss that would support your inability to perform your regular occupation."

B. First Appeal

Heim appealed the denial on March 29, 2009, and submitted additional information including her own letter setting forth the background of her symptoms and conditions; additional office notes from October 2008 through January 2009; a letter from Dr. George; and, a letter from a psychologist, Paul E. Delfin, Ph.D., who had examined her. Heim explained in her letter to LINA that she had a 29-year history of autoimmune collagen vascular disease and Sjogren's syndrome,*fn6 noting a significant increase in fatigue and malaise in 2007. Heim also described a significant decrease in the spring of 2008 in her ability to recall information, to concentrate, and to absorb new information.

Dr. George's office visit note of October 23, 2008, states that Heim reported no improvement in memory, a few weeks with higher energy but that she was currently not feeling well, and pain and stiffness that was not improving. Her physical exam revealed mildly reduced sensation in some fingers and toes. He noted some neurologic dysfunction with cognitive impairment and planned formal neuropsychological testing and a repeat MRI. Heim continued to take Imuran, Prednisone and Inderal.

Dr. George's December 18, 2008 office visit notes reflect that Heim reported trouble with organization and was frustrated after seeing a neurologist who had no specific recommendations. She relayed problems with simple calculations, but Dr. George noted that she was able to count in serials and perform multiplication, although she was distressed at how slowly she did so. He did not observe any abnormalities in the physical exam. Heim had stopped taking Prednisone but reported no difference in how she felt. Dr. George ordered that her Imuran be tapered and stopped and added 1000mg of Flax Seed Oil to be taken twice daily.

Dr. George's January 29, 2009 office visit notes show that Heim reported no energy, that her repeat MRI showed no progression, that her counting was again good, and that she was clinically stable.

The formal neuropsychological evaluation was performed by Dr. Delfin. He submitted a letter summarizing his assessment dated February 6, 2009. He administered the Wechsler Adult Intelligence Scale-IV and found Heim's memory scores were "quite high and would seem to contradict a measurable organically-based memory problem." He noted that "unlike her performance on the initial screening tests, she was perfectly capable of dealing with verbal stimuli." He also administered the Beck Depression Inventory-II which showed a "virtual absence of depression" and he found that depression could not be the cause of her cognitive difficulties. Dr. Delfin concluded that she was a "cognitively intact individual who is having what may well be benign, age-related 'senior moments' complicated by fatigue from her illness."

Dr. George's February 15, 2009 letter noted Heim's "history of immune peripheral neuropathy years ago" and her "chronically positive ANA test." He stated:

The fatigue has become so severe that it prevents consistent daily employment of any kind. The fatigue is highly variable, but is severe most days. We have attempted a number of medical approaches, including aggressive immunosuppressive theapy [sic], without success. The fatigue has a significant impact upon physical and mental function. I believe that her current problem precludes current employment and, based upon the history over the past year, I anticipate that it will be an ongoing problem.

Dr. George's office-visit note of April 6, 2009, remarks that Heim reported increasing flu-like episodes, increased aching, and poor sleep. He found that she had no new neuropathic symptoms and stable cognition and noted that her psychological test was negative.

A LINA medical director reviewed Heim's records. He concluded that despite the rise in ANA levels, she had no demonstrated effect of fatigue but only her own "subjective complaints about lack of energy." (SOF ¶ 25.) He noted no documented measurable loss of strength or motion and that neuropsychological testing did not support a cognitive impairment.

LINA upheld its denial of Heim's claim by letter dated April 17, 2009, citing "no significant findings to support the limitations that would preclude [Heim] from performing [her] own occupation." LINA stated:

Although you have complaints of fatigue, the office notes from Dr. George report that on examination you were well developed, well nourished and in no acute distress. There is no documentation that you appeared fatigued or had observable cognitive deficits as a result of the fatigue. In addition, there was no indication that your fatigue was impairing your functionality. You also had complaints of cognitive difficulties; ...


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