United States District Court, M.D. Pennsylvania
F. SAPORITO, JR. United States Magistrate Judge
an action for benefits under the Employment and Retirement
Income Security Act (ERISA), 29 U.S.C. § 1001 et
seq. This matter is before the Court on the parties'
cross-motions for summary judgment. (Doc. 17; Doc. 20). For
the reasons that follow, we will grant the defendant's
motion and deny the plaintiff's motion.
material facts of this case are largely undisputed.
plaintiff, Carol Moncak, worked for Cinram Manufacturing
Company LLC as a DVD Mold Operator. As a full-time non-union
employee of Cinram Manufacturing LLC, she was insured under a
group disability income policy (the “Policy”),
bearing policy number GD/GF3-830- 505658-01, issued by the
defendant, Liberty Life Assurance of Boston
(“Liberty”), and effective January 1, 2005. (Doc.
10-1). The Policy provides long-term disability benefits to
full-time employees of Cinram (U.S.) Holdings, Inc.
(“Cinram”) and affiliated companies, including
Cinram Manufacturing Company LLC.
ceased work on February 24, 2010, because of low back and leg
pain. She received short-term disability benefits under the
Policy during a 180-day elimination period before becoming
eligible for payment of long-term disability benefits on
August 23, 2010. She then received long-term disability
benefits for two years under the Policy's “own
occupation” period of disability coverage. On August 7,
2012, after reviewing Moncak's medical treatment records
and obtaining a peer review report from a consulting
physician, Liberty issued a determination discontinuing
Moncak's benefits effective August 23, 2012, on the
ground that she was not disabled under the Policy's
“any occupation” period of disability coverage.
Moncak pursued an administrative appeal of this decision,
which was denied on March 6, 2013, following additional
review of her medical records by a consulting nurse.
Policy provides a general definition of “disability,
” which states:
“Disability” or “Disabled” means that
during the Elimination Period and the next 24 months of
Disability the Covered Person, as a result of Injury or
Sickness, is unable to perform the Material and Substantial
Duties of his Own Occupation; and . . . thereafter, the
Covered Person is unable to perform, with reasonable
continuity, the Materials and Substantial Duties of Any
(Doc. 10-1, at 12). “‘Own Occupation' . . .
means the Covered Person's occupation that he was
performing when his Disability . . . began.”
(Id. at 15). “‘Any Occupation' means
any occupation that the Covered Person is or becomes
reasonably fitted by training, education, experience, age,
physical and mental capacity.” (Id. at 11).
“‘Material and Substantial Duties' . . .
means responsibilities that are normally required to perform
the Covered Person's Own Occupation, or any other
occupation, and cannot be reasonably eliminated or
modified.” (Id. at 14).
covered person is deemed “Disabled” under the
Policy, Liberty is obligated to pay her a monthly benefit
equal to 60% of her monthly earnings from Cinram, less any
other earnings or benefits, such as workers compensation or
Social Security disability benefits. (Id. at 9).
Policy also provides that “Liberty shall possess the
authority, in its sole discretion, to construe the terms of
this policy and to determine benefit eligibility hereunder.
Liberty's decisions regarding construction of the terms
of this policy and benefit eligibility shall be conclusive
and binding.” (Doc. 10-2, at 24).
The Plaintiff's Disability Claim
ceased working on February 24, 2010, due to low back and leg
pain. Over the course of the preceding three months, she had
presented to her treating orthopedic surgeon, Alan P.
Gillick, M.D., complaining of increasing and
“relentless” back and leg pain, which had been
causing her to miss work intermittently. (Doc. 10-9, at 27;
Doc. 10-12, at 11). Moncak reported “pain radiating
down the right leg into the toes and aching in both
legs.” (Doc. 10-9, at 27). Upon physical exam, flexion
and extension caused increased pain, and her straight leg
raising was positive for increased back pain. (Doc. 10-9, at
27; Doc. 10-12, at 11). Based on medical imaging and a
physical examination, Dr. Gillick found “endstage
narrowing of the L5-S1 disk space” and “advanced
disk degeneration L5-S1 with a central protrusion, ”
and that Moncak “would probably be a candidate for an
L5-S1 fusion.” (Doc. 10-9, at 27; Doc. 10-12, at 11).
April 20, 2010, Moncak underwent surgery, performed by Dr.
Gillick. (Doc. 10-12, at 13-14). Dr. Gillick performed an
anterior discectomy and interbody fusion, L5-S1, using
anterior interbody cage and bone morphogenetic protein, and a
bilateral L5 root decompression, instrumented L5-S1 fusion
using bone morphogenetic protein and right posterior iliac
crest graft. (Id.). She was discharged from the
hospital three days later, on April 23, 2010. (Doc. 10-14, at
27-28). She presented for a follow-up appointment with Dr.
Gillick on June 9, 2010. (Doc. 10-12, at 15). Dr. Gillick
noted that she was “symptomatically doing relatively
well” six weeks out from surgery. (Id.).
24, 2010, Liberty advised Moncak by letter that she had been
determined eligible to receive long-term disability benefits
under the Policy's “Own Occupation” period of
disability, effective upon expiration of the Elimination
Period on August 23, 2010. (Doc. 10-14, at 31-33).
19, 2010, Moncak presented to Dr. Gillick for a follow-up
appointment. (Doc. 10-12, at 16). Dr. Gillick noted that
Moncak “is three months out and seems to be doing
extremely well.” (Id.).
Her exam shows well healed incision, no tenderness. No
swelling, no pain with gentle movements, flexion, extension
with restrictions of the brace. Straight leg raising is
negative. Motor and sensation are normal. Reflexes are and
symmetrical. Good pulses. No skin changes.
September 22, 2010, Moncak presented to Dr. Gillick for a
follow-up appointment. (Doc. 10-12, at 17). Dr. Gillick noted
that, five months out from surgery, she was “doing
well.” (Id.). Moncak reported “somewhat
of an achy discomfort in her back, ” and continued
Vicodin use because without it, “her pain will start to
Her physical exam shows a healed incision, anteriorly and
posteriorly. There is no tenderness. There is no pain with
gentle flexion and extension type movements within the
restrictions of the brace. Her straight leg raising is
negative. Motor and sensation of the lowers are normal.
Reflexes are and symmetric. Good pulses. No skin changes.
(Id.). Dr. Gillick advised her to start weaning
herself out of the back brace she had been wearing since the
surgery, maintaining a “cautiously increasing activity
December 1, 2010, Moncak presented to Dr. Gillick for a
follow-up appointment. (Doc. 10-12, at 18). Dr. Gillick noted
that, seven months out from surgery, she was “doing
relatively well.” (Id.). Moncak reported that
she still had “a fair amount of discomfort in her back.
Some days she is good and some days she feels that she is
still pretty limited.” (Id.).
Her physical exam shows a well healed incision. There is no
swelling, redness, minimal tenderness. There is some
discomfort with flexion and extension movements. Her straight
leg raising is negative. Motor and sensation of the lowers
are normal. Reflexes are and symmetric. Good pulses. No
skin changes. She again no longer gets the pain radiation to
(Id.). Dr. Gillick started her on physical therapy.
(Id.). Over the course of the next six months,
Moncak participated in a physical therapy program, initially
meeting with a therapist several days a week.
February 7, 2011, Moncak presented to Dr. Gillick for a
follow-up appointment. (Doc. 10-12, at 19). Dr. Gillick noted
that “[s]ymptomatically she seems to be doing well. She
said she is a bit improved even a little more from the last
Her physical exam shows a healed incision. There is minimal
tenderness, minimal discomfort with flexion and extension and
rotational movements. Her straight leg raising in negative.
Motor and sensation of the lowers are normal. Reflexes are
and symmetric. Good pulses. No skin changes.
X-rays show intact instrumentation, good alignment and good
healing. She will finish up the physical therapy/ home
(Id.). Dr. Gillick advised her to return for a
follow-up appointment in two or three months, “hoping
at that point that she can consider some type of modified
return to work.” (Id.).
April 18, 2011, Moncak presented to Dr. Gillick for a
follow-up appointment. (Doc. 10-12, at 20). Dr. Gillick noted
that, one year after her surgery, she was
“symptomatically doing reasonably well, ” though
“she still has some aching discomfort in her back and a
fairly constant aching in her legs. The aching in her back is
actually worse when she walks, but if she walks with a cart .
. . she has no pain at all.” (Id.).
Her physical exam shows healed incisions, anterior and
posterior. There is some posterior midline tenderness. There
is some discomfort with flexion and extension movements of
the lumbar spine. Her straight leg raising is negative. Motor
and sensation of the lowers are normal. Reflexes are and
symmetric. Good pulses. No skin changes.
X-rays show intact instrumentation, good alignment and good
(Id.). Dr. Gillick advised Moncak to continue to
“cautiously increase her activity level” and
return for a follow-up in six months. (Id.).
1, 2011, Dr. Gillick completed a Liberty Mutual Restrictions
Form, stating that she was recovering from spine surgery, she
should cautiously increase her activity level, she was taking
Norco for pain, and she was not capable of working. (Doc.
10-12, at 3).
7, 2011, Moncak presented to her treating family physician,
Thomas G. Majernick, D.O., with complaints of constant leg
pain despite her pain medication. (Doc. 10-11, at 36-38). Dr.
Majernick noted that Moncak walked with “a labored
gait.” (Id.). He ordered an MRI of the lumbar
spine and an arterial duplex lower extremity bilateral.
12, 2011, Moncak underwent the prescribed medical imaging
procedures. (Doc. 10-7, at 23-26; Doc. 10-11, at 46).
According to the radiologist's report, the MRI revealed:
There are prominent focal concavities at ¶ 1 and L2
superior endplates suggesting chronic focal intervertebral
herniations. . . . At ¶ 5/S1, there is facet and
ligamentum flavum hypertrophy but no definite canal or
foraminal stenosis. . . . Comparison with prior study shows
stable superior endplate deformities at ¶ 1 and L2 and
interval lower lumbar surgical changes.
(Doc. 10-11, at 46). The radiologist concluded:
“Changes of interbody and posterior fusion at ¶
5-S1. Mile levoscoliosis. No [herniated disc] or significant
stenosis. Shallow spondylosis and bulging as above. Stable
chronic superior endplate deformities at ¶ 1 and
L2.” (Id.). A different radiologist read the
arterial ultrasound, which revealed:
Bilateral resting [ankle/brachial indexes] suggest mild
disease on the right side measuring 0.93 and moderate disease
on the left side measuring 0.88.
The right lower extremity shows mild atherosclerotic wall
changes. An increase in velocities in the right common
femoral artery and proximal superficial femoral artery
suggests a 50-75% stenosis and a 30-49% stenosis in the mid
superficial femoral artery.
The left lower extremity shows mild atherosclerotic wall
changes. An increase in velocities in the left common femoral
artery suggests a 50-75% stenosis and a 30-49% stenosis in
the proximal superficial femoral artery.
(Doc. 10-7, at 23-26).
August 8, 2011, Moncak presented to Dr. Majernick for a
follow-up appointment with respect to her leg and back pain.
(Doc. 10-11, at 39- 41). Dr. Majernick observed that Moncak
walked with “a normal gait for age.”
(Id.). Dr. Majernick referred her to a ...