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Everette v. Liberty Life Assurance Co. of Boston

United States District Court, D. Maryland

June 29, 2017

CAROLYN EVERETTE, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON and GLAXOSMITHKLINE, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE

         After enduring chronic neck and back pain, Carolyn Everette, an administrative assistant at a pharmaceutical company, sought long-term disability benefits under the employee welfare benefit plan provided by her employer, GlaxoSmithKline, LLC ("GSK"), and administered by Liberty Life Assurance Company of Boston ("Liberty"). When Liberty denied her claim, she filed this action against Liberty and GSK under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461 (2012). Pending before the Court are Defendants' Motion for Summary Judgment and Everette's Cross Motion for Summary Judgment. For the reasons set forth below, Defendants' Motion is granted, and Everette's Cross Motion is denied.

         BACKGROUND [1]

         Everette was employed by GSK as an administrative assistant, with duties which included scheduling telephone calls, meetings, and trips; preparing and reconciling expense reports; answering telephone calls; ordering and tracking office supplies; assisting new employees; preparing organization charts; planning events; and conducting research. In January 2014, Everette began to experience neck, shoulder, and lower back pain. Her treating physician, Dr. Alvin K. Antony, diagnosed her with cervical radiculitis and cervicalgia. According to Dr. Antony, as of July 2014, she had a "[m]oderate limitation of functional capacity" but was "capable of clerical/administrative activity." LL005781. She did not have any limitations caused by mental or nervous impairment.

         On July 22, 2014, Everette filed a claim for long-term disability ("LTD") benefits under GSK's Group Disability Income Insurance Policy (the "Policy"). The Policy was issued by Liberty and governed by ERISA. Under the Policy, an employee has a disability when prevented by:

Accidental bodily injury; Sickness; Mental Illness; Substance Abuse; or Pregnancy, from performing the Essential Duties of his Own Job, and as a result is earning less than 80% of his Pre-disability Earnings, unless engaged in a program of Rehabilitative Employment approved by us.

         LL000009. If an employee is deemed to have a disability, Liberty "agrees to pay benefits provided by [the] policy in accordance with its provisions, " LL000001, outlined in detail in the Policy's Schedule of Benefits.

         Payment of monthly benefits is conditional upon the "Covered Person" giving to Liberty "Proof of continued Disability; Regular Attendance of a Physician; and Appropriate Available Treatment" as those terms are defined in the Policy. LL000027. In particular, the Policy defines "Proof as "evidence in support of a claim for benefits and includes, but is not limited to, the following":

1. a claim form completed and signed (or otherwise formally submitted) by the Covered Person claiming benefits;
2. an attending Physician's statement completed and signed (or otherwise formally submitted) by the Covered Person's attending Physician; and
3. the provision by the attending Physician of standard diagnosis, chart notes, lab findings, test results, x-rays and/or other forms of objective medical evidence in support of a claim for benefits.

         LL000015. The Policy adds that "[p]roof must be submitted in a form or format satisfactory to Liberty." Id. It also outlines conditional dates upon which monthly LTD benefits will cease, which include:

1. the date the Covered Person fails to provide Proof of continued Disability or Partial Disability and Regular Attendance of a Physician;
2. the date the Covered Person fails to cooperate in the administration of the claim. Such cooperation includes, but is not limited to, providing any information or documents needed to determine whether benefits are payable or the actual benefit amount due.
6. the date the Covered Person is able to work in his Own Job on a part-time basis, but chooses not to;
***
8. the date the Covered Person is no longer Disabled according to this policy[.]

LL000040.

         Under the Policy, Liberty has "the authority, in its sole discretion, to construe the terms of [the] policy and to determine benefit eligibility." LL000048. The Policy further states that Liberty's "decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding." LL000048. Even when disability benefits are granted, Liberty retains the right to have the employee "examined or evaluated at reasonable intervals deemed necessary by Liberty" to assess continuing disability. LL000047.

         I. Initial Determination

         To assess Everette's claim, Liberty obtained medical records from Dr. Antony and another treating physician, Dr. Adam Thorp, as well as additional documentation from Everette. On August 29, 2014, Liberty requested an independent evaluation by a specialist in physical medicine and rehabilitation through MES Solutions, an outside vendor. The specialist, Dr. Arthur N. Hryhorowych, reviewed the medical records, spoke with Dr. Antony, and concluded that the evidence supported a diagnosis of chronic cervicalgia and lower back pain "secondary to degenerative disease, spondylosis and facet hypertrophy." LL005707. As of September 15, 2014, both he and Dr. Antony agreed that although Everette was limited to "sedentary work with the ability to change positions for comfort, " she had "the capacity for full time work with the appropriate restrictions, " such as restrictions on "carrying and lifting more than 10 pounds frequently." LL005705, LL005707.

         That same month, on September 19, 2014, Everette informed Liberty that she would be undergoing neck surgery by Dr. Raymond Baule, a spine surgeon referred by Dr. Antony, on September 24. The surgery required a recovery period of at least six weeks, during which she would be unable to perform sustained work. Liberty therefore approved short-term disability benefits for Everette, up to October 14, 2014. In a September 25, 2014 letter, which served to update an earlier September 23, 2014 letter, Liberty informed Everette that her claim for LTD benefits had been approved, with benefits consisting of 70 percent of her pre-disability earnings, to begin on October 15, 2014. The letter also stated that she was required to apply for Social Security benefits if her disability was expected to last for 12 months or more. Liberty communicated in its letter that it would continue to review her claim, request "medical documentation and updates to support your continued disability, " and that, under the Policy, benefits would terminate upon, among other events, "the date the Covered Person fails to provide Proof of continued Disability or Partial Disability and Regular Attendance of a Physician." LL000342.

         II. Denial of Benefits

         After Everette's surgery, Liberty requested updated medical records from her doctors and an independent evaluation by a physical medicine and rehabilitation specialist. Conducting this evaluation, Dr. Hryhorowych reviewed the medical documentation obtained from Everette's treating physicians. These reports showed that an x-ray taken on September 16, 2014, before the surgery, revealed multiple degenerative disc disease, but no evidence of acute fractures or malalignment. Within one week of the surgery, on September 29, 2014, Everette visited Dr. Antony complaining of lower back pain, which worsened with activity, and neck pain that was "causing significant disability." LL000630-LL000631. At the same time, Dr. Antony noted that Everette had completed surgery and "[r]eported she is doing well." Id. During a visit on October 28, 2014, Dr. Antony noted that Everette continued to complain of lower back pain affecting her thigh and foot and neck pain affecting her arm, that activity and physical therapy worsened her pain, and that he planned to give her epidural injections.

         Everette also visited with Dr. Baule after her surgery. On October 9, 2014, Dr. Baule noted that post-surgery, her "symptoms are much improved compared to preoperative." LL000632. In a December 31, 2014 report, however, Dr. Baule stated that Everette continued to complain of lower back pain radiating to her lower left leg, that it was exacerbated by standing and walking, and that the epidural injections had not helped. Nevertheless, he noted that her "cervical symptoms are improved compared to pre-op" and her mental status, motor skills, and gait all appeared to be normal. LL005510-LL005511.

         In a January 21, 2015 report, Dr. Hryhorowych concluded that the records supported diagnoses of, among other things, "cervicalgia and [lower back pain] with radicular symptoms, " which were the cause of her impairment. LL005495. Although Everette had been diagnosed with depression, he found that Everette had "no neurological deficits" according to the information submitted and that there was "no evidence of any side effects from prescribed medication in the medical records reviewed." Id. He thus concluded that Everette "should be able to perform full time work" under the following conditions:

• Based on her neck and lower back pain, she should be restricted from lifting, pushing, and pulling items and carrying more than 10 pounds frequently or 20 pounds occasionally.
• She should not sit for more than 30 minutes at any one time, and even with the ability to change position for comfort, she should not sit for more than a total of 6 hours in an 8 hour day.
• She should not stand for more than 1 hour at any time, and even with the ability to rest for 5 minutes every hour, she should not stand for more than a total of 2 hours in an 8 hour day.
• She should not walk for more than 1 hour at any one time, and even with the ability to rest for 5 minutes every hour, she should not walk for more than a ...

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