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Krash v. Reliance Standard Life Insurance Co.

United States District Court, M.D. Pennsylvania

March 30, 2017

SERILYN KRASH, Plaintiff
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY, [1]Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Pending before the court are the parties' cross-motions for summary judgment. (Doc.14, Doc. 17). Based upon the court's review of the motions and related materials, the plaintiff's motion for summary judgment will be denied and the defendant's motion for summary judgment will be granted.

         By way of relevant background, on December 22, 2015, the plaintiff filed this Employee Retirement Income Security Act, (“ERISA”), 29 U.S.C. §1001, et seq., action in the Court of Common Pleas of Lackawanna County challenging the defendant's termination of her disability benefits. On January 19, 2016, the action was removed to this court. (Doc. 1). On May 19, 2016, the plaintiff filed her motion for summary judgment, (Doc. 14), along with a supporting brief, (Doc. 15), and statement of material facts, (Doc. 16). The defendant filed a response to the plaintiff's statement of material facts on June 10, 2016, (Doc. 20), along with a brief in opposition to the plaintiff's motion for summary judgment, (Doc. 21).

         In the meantime, on May 20, 2016, the defendant filed its own motion for summary judgment, (Doc. 17), along with a statement of material facts with supporting exhibits, (Doc. 18), and a supporting brief, (Doc. 19). The plaintiff has neither responded to the defendant's statement of material facts, nor filed a brief opposing the defendant's motion for summary judgment.

         Summary judgment is appropriate “if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

         To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that “on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to material facts, ” but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, ” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

         The summary judgment standard does not change when the parties have filed cross-motions for summary judgment. Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). When confronted with cross-motions for summary judgment, as in this case, “the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.” Marciniak v. Prudential Financial Ins. Co. of America, 2006 WL 1697010, at *3 (3d Cir. June 21, 2006) (citations omitted) (not precedential). If review of cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted). See Nationwide Mut. Ins. Co. v. Roth, 2006 WL 3069721, at *3 (M.D. Pa. Oct. 26, 2006) aff'd, 252 F. App'x 505 (3d Cir. 2007).

         Section 1132(a)(1)(B) of ERISA provides the plaintiff a right of action “to recover benefits due to [her] under the terms of [her] plan.” 29 U.S.C. §1132(a)(1)(B). To prevail on a claim under §1132(a)(1)(B), the plaintiff must demonstrate that she has “a right to benefits that is legally enforceable against the plan, and that the plan administrator improperly denied those benefits.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal quotations omitted).

         The Supreme Court has instructed that courts are to review the denial of benefits challenged under §1132(a)(1)(B) “under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When a plan grants its administrator the discretion to determine eligibility or to construe the plan terms, “we review a denial of benefits under an ‘arbitrary and capricious' standard.'” Orvosh v. Program of Grp. Ins. for Salaried Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000). The parties in this case agree that Reliance Standard Life Insurance Company, (“Reliance”), has discretion to interpret the terms of the policy and to make eligibility determinations and, therefore, the “arbitrary and capricious” standard is the correct standard of review in this case. “An administrator's decision is arbitrary and capricious ‘if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.'” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011) (quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)) (internal quotation marks omitted). The Third Circuit has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fleisher, 679 F.3d at 121.

         Under the arbitrary and capricious standard, the “scope of review is narrow and ‘the court is not free to substitute its own judgment for that of the defendants in determining eligibility for plan benefits.'” Abnathya, 2 F.3d at 45 (quoting Lucash v. Strick Corp., 602 F.Supp. 430, 434 (E.D. Pa. 1984)). Therefore, the court is limited to considering only the evidence that was before Reliance at the time it reviewed and decided the claim. Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997).

         Reliance provides that there is a structural conflict of interest that exists because Reliance both pays benefits due and makes eligibility determinations. The standard of review does not change where a structural conflict of interest exists, namely when an insurance company both funds and administers benefits. Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008); Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009). “Instead, courts reviewing the decisions of ERISA plan administrators or fiduciaries in civil enforcement actions brought pursuant to 29 U.S.C. §1132(a)(1)(B) should apply a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the administrator or the fiduciary abused its discretion.” Id.

         The undisputed facts of record in this case[2] demonstrate that Reliance issued the group long term disability policy under which the plaintiff is seeking benefits to Immune Deficiency Foundation, (“IDF”), where the plaintiff was employed as a Patient Advocate. The plaintiff's occupation is classified as a light exertion level occupation. In accordance with the policy, before any benefits are paid, a claimant must satisfy a 90-day elimination period, during which time they must be continuously unable to perform the material duties of their regular occupation. After the elimination period, benefits are payable for up to 24 months, as long as the claimant remains disabled from their regular occupation. After 24 months, benefits are only payable if an insured cannot perform the material duties of any occupation.[3] (Emphasis added). The policy also contains a 24-month aggregate lifetime limit on benefits for any disability that is caused by or contributed to by a mental or nervous disorder, including depressive and anxiety disorders.

         On May 13, 2010, the plaintiff stopped working due to back pain. In relation to this, the plaintiff reported having previously undergone a vertebrae fusion in 1990 while in high school. On April 25, 2008, the plaintiff underwent a posterior spinal fusion L3 to the sacrum with instrumentation from L3 to S1. She had a transdiscal screw inserted from S1-L5, a posterior spinal fusion of L3-L4, a L3-L4 laminectomy, a L3-L4 posterior spinal osteotomy, and a local bone graft. A lumbar x-ray dated February 23, 2009, lists the plaintiff as having a Grade 2 Anterior Spondylolisthesis at ¶ 5-S1, as does a lumbar x-ray dated July 2, 2009. A disability claim statement from Christopher J. Dewald, M.D., the plaintiff's orthopedic surgeon, attributed the plaintiff's back pain to spondylolisthesis, lumbar stenosis and lumbago.

         Reliance, which also insures IDF's short term disability plan, approved the plaintiff's claim from short term disability benefits. After the plaintiff's short term disability benefits were exhausted, Reliance approved the plaintiff's long term disability claim and benefits began on August 15, 2010.

         After approving the plaintiff's long term disability claim, Reliance continued to obtain updated medical records. Those records demonstrate that, as early as May 27, 2010, the plaintiff treated for and frequently complained of anxiety and stress which contributed to her physical symptoms. In September 2010, the plaintiff received treatment for hives that were believed to be stress related.

         During an October 4, 2010 vocational interview that was performed at Reliance's request, the plaintiff stated that she can lift no more than 15 pounds, and that she can stand, walk and sit for only 15 minutes at a time. On this, Reliance concluded that the plaintiff could perform sedentary level work activity but was not capable of performing the material duties of her regular, light level occupation. Therefore, the plaintiff's long term disability benefits was continued.

         In November 2010, Eugene R. Stish, M.D., reported that the plaintiff could not work due to back pain. He did not attribute any of the plaintiff's reported limitations to the effects of her medication. When asked whether the plaintiff was “capable of performing any work at any level of physical demand”, Dr. Stish responded “no, she is having too much pain.” However, on the same date, Dr. Stish completed a physical capacities questionnaire stating that the plaintiff is capable of occasional sitting, frequent standing and walking and sedentary lifting (i.e., up to 10 pounds of force occasionally, and/or a negligible amount of force frequently). Reliance again determined that the plaintiff was disabled from her own occupation and benefits continued.

         On May 2, 2012, the plaintiff was evaluated by Shu Xu, M.D., a neurologist, who noted that the plaintiff's “[a]nxiety makes things worse.” On May 16, 2012, and again on July 12, 2012, Dr. Xu noted that the plaintiff's tremors were “much better”. In the meantime, a lumbar x-ray dated May 21, 2012 listed the plaintiff as having a Grade 3 Spondylolisthesis at ¶ 5-S1.

         On July 24, 2012, Vagmin Vora, M.D., evaluated the plaintiff for her complaints of “[t]remor, status post spondylolisthesis surgery”. In presenting the plaintiff's self-reported medical history, Dr. Vora noted that the plaintiff “underwent an L4-S1 fusion for high grade 4 spondylolisthesis . . . and was doing well after that.” Dr. Vora's assessment and plan reflect “[a] 39-year-old female status post L3-S1 fusion for high grade 4 spondylolisthesis with persistent tremors since April of this year, left sacroiliitis and persistent low back pain with minimal radicular complaint to the left lower extremity.” Relative to her reported tremors, Dr. Vora indicated “[g]iven this patient's primary complaint of some tremors, we do not think these are coming from a spinal origin.” Dr. Vora recommended that the plaintiff consult a neurologist regarding her tremor complaints. With respect to the plaintiff's back pain and radicular complaints, Dr. Vora noted that “these are stable and minor complaint[s] for her really compared to the tremors. We recommend that she continue with her conservative measures that she has been doing and to call us if she has any further problem of these. We will not schedule a routine follow up for this patient.”

         An MRI of the plaintiff's thoracic spine dated January 30, 2013 revealed “[n]o significant disc herniation, central canal or neuroforaminal stenosis.” Further, an MRI of the plaintiff's lumbar spine dated the same day revealed “[n]o significant disk abnormality or spinal stenosis present. Laminectomy and pedicle screw fixation as described above. There has been no significant integral change.”

         A February 28, 2013 cervical MRI reflects a broad-based slightly left paracentral disc herniation with moderate impingement centrally upon the thecal sac at ¶ 4-5 and a broad based and slightly irregular disc osteophyte complex with moderate to severe impingement centrally upon the thecal sac and with mild bilateral neural foraminal impingement, slightly greater on the left than the right at ¶ 5-6.

         On March 14, 2013, the plaintiff treated with Dr. Stish at which time it was noted that the plaintiff exhibited no tremors during his examination. One month later, on April 11, 2013, Dr. Stish noted “Neurological: Motor exam reveals normal tone and strength. No involuntary movements noted on today's exam”. Contrary to the statements in his treatment notes of March 14. 2013 and April 11, 2013, Dr. Stish prepared a letter to the Pennsylvania Insurance Department dated April 11, 2013, in which he stated that the plaintiff was not capable of working in any capacity because she was reportedly (a) unable to sit for more than 10 minutes, (b) unable to perform any job requiring the use of a computer or writing because of reported neck pain and (c) experiencing tremors that no physician was able to diagnose in the two years during which she complained of them.

         On May 14, 2013, the plaintiff treated with Terence F. Duffy, M.D., who noted:

Objective:
* * * Physical examination shows patient [to] be in no acute distress. She appears much more relaxed. Palpable tenderness in the upper trapezius is noted. Minor restrictions to cervical range of motion. Tenderness persists across the lower lumbar region. I did not assess her lumbar flexion or extension for furosemide causing her lower body “movement disorder”. Any upper extremities reflexes 1/4. Motor testing and sensation are normal.
At the request of Dr. Duffy, the plaintiff was evaluated by Tsao-Wei Liang, M.D., Assistant Professor of Neurology, The Parkinson's Disease & Movement Disorders Program at Jefferson Hospital. In a subsequent letter to Dr. Duffy, Dr. Liang stated:
IMPRESSION and RECOMMENDATIONS:
My immediate suspicion based on the high variability and unusual movements was that this was a psychogenic movement disorder.
* * *
I discussed my suspicion and the fact that many patients, who have suffered from this condition including chronic pain, have suffered a childhood trauma. Immediately, she became tearful and described this history that her uncle had molested her in childhood at the age of four.
* * *
Although this history is highly indicative of a potential psychogenic etiology for movement disorder, it certainly is not always diagnostic. At the same time, with discussion of this problem her symptoms gradually improved and there was a sense of understanding and relief when we discussed this, which is a good prognostic factor. At this point, I would recommend gradually reducing medical therapies if at all possible and I strongly encouraged her to discuss with a counselor, clergyman, friend or a psychologist the history and to potentially engage in formal counseling and therapy regarding her prior history of abuse. I have no further recommendations otherwise and suggest that she follow-up as needed in the future.

         On August 1, 2013, Dr. Stish noted that the plaintiff was “to see psychologist” regarding her tremors.

         The plaintiff was again evaluated by Dr. Xu on August 15, 2013, at which time it was noted that no tremors were observed. Dr. Xu agreed that the plaintiff “may benefit from counseling”.

         On September 3, 2013, Dr. Duffy referenced Dr. Liang's correspondence and opinion that the plaintiff's “movement disorder is psychiatric”.

         Beginning on October 17, 2013, the plaintiff treated with Howard Ogin, M.A., a psychologist, who diagnosed her with posttraumatic stress disorder, conversion disorder and noted that she suffered from severe stress. Dr. Ogin identified the plaintiff's primary problem as unspecified chronic ...


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