United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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[.]
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.
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.
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.
Denial of Benefits
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
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.
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
• 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
• 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
• 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 ...