United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Irving brings this action against insurance plan
administrator UNUM Life Insurance Company of America
("Unum"), her former employer Northrop Grumman
having been dismissed from the case. See ECF No. 17.
The lawsuit involves a dispute over living's entitlement
to long-term disability benefits. The benefit was insured and
administered by Unum. After paying Irving for three years
under the plan, in June 2016 Unum terminated her benefits,
stating that the administrative record did not support a
finding of further entitlement to such benefits under the
plan. Irving filed two appeals; Unum upheld its decision in
both. This lawsuit followed. Unum has filed a Motion for
Summary Judgment, ECF No. 25, and Irving a Cross Motion for
Summary Judgment, ECF No. 23. For the following reasons,
Unum's Motion for Summary Judgment is
GRANTED, and Irving's Cross Motion is
November 2003, Irving was hired by Northrop Grumman
Corporation in Northern Virginia as a Configuration Analyst.
UA-CL-000134; Compl. ¶ 6. On July 1, 2006, Northrop
Grumman purchased Unum group long-term disability insurance,
policy number 586517 002, as part of its employee benefit
plan. UA-CL-000206-254. The plan provided coverage to Irving
as defined by the policy. In its capacity as Plan
Administrator, Northrop Grumman delegated discretionary
authority for the policy's interpretation and claim
determinations to Unum. UA-CL-000248.
the plan, an insured is initially deemed “disabled,
” hence entitled to disability benefits, when Unum
determines that: (1) she is limited from performing the
material and substantial duties of her regular
occupation due to sickness or injury, and (2) she has a
20% or more loss in her indexed monthly earnings due to the
same sickness or injury (“own occupation
disability”). In other words, the plan provided a
benefit to Irving for up to 24 months for any disability
beginning during the coverage period,  so long as she
provides proof to Unum that she is (a) under the regular care
of a physician for the disability, and (b) unable to perform
the material and substantial duties of her regular occupation
due to that disability. See, e.g., UA-CL-000456.
24 months, however, the eligibility criteria for a continuing
plan benefit change. At that point, the insured is deemed
“disabled” when Unum determines that due to the
same sickness or injury, she is unable to perform the duties
of any gainful occupation for which she is
reasonably fitted by education, training, or experience.
“Gainful Occupation” is defined as “an
occupation that is or can be expected to provide [the
insured] with an income at least equal to 60% of [her]
indexed monthly earnings within 12 months of [her] return to
last day of active employment with Northrop Grumman was
September 26, 2012. She submitted two claims to Unum for
disabilities occurring on or before that date. The first
claim, dated October 2, 2012, stated that Irving had a
pulmonary disability and that her last day worked was
September 26, 2012. UA-CL-000076. Irving's second claim
arrived on July 29, 2015, almost three years after her active
employment ended, and stated that (1) she became disabled by
hip and back pain (“orthopedic disability”) on
September 26, 2012 (her last date of coverage by the Plan),
and (2) the physician treating her for that disability was
Dr. Macedo of Washington Medical Group. UA-CL001066-1068.
Irving's Own Occupation Disability Period-Pulmonary
first disability claim, dated October 2, 2012, stated that
she had a pulmonary disability as of her last day worked,
September 26, 2016. Because the policy contained a six-month
elimination period prior to eligibility for long-term
disability benefits, UA-CL-000209, Irving became eligible for
and started receiving monthly disbursements of long-term
disability benefits as of March 27, 2013. Then began the
“own occupation disability” period, during which
the plan would cover benefits for up to 24 months if the
claimant's disabling condition keeps her from performing
the material and substantial duties of her regular
occupation. It is undisputed that Irving received a full
disability benefit for the 24 months under her “own
occupation” disability-- from March 27, 2013 through
March 27, 2015. UA-CL-000209; UA-CL-000211; UA-CL-000221.
22, 2013, during the initial 24 month period, Unum referred
Irving to its vendor, GENEX, for representation in seeking
Social Security Disability benefits. UA-CL-000431. In that
referral, Unum noted that its disability benefit payments to
Irving could be reduced by the amount of any Social Security
award. UA-CL-000432. On May 15, 2014, Irving was approved for
Social Security Disability, with a disability onset date of
March 2013. UA-CL-000632. Unum told Irving it would obtain
her SSA file “for significant weight, ”
UA-CL-000620. Unum, however, never obtained the file.
UA-CL-001325. On May 16, 2014, Unum requested that Irving
repay its “overpayment” as offset by Irving's
Social Security award in the amount of $28, 086.67.
27, 2014, Unum reminded Irving that the criteria (and
evidentiary requirements) for continuing long-term disability
benefit eligibility, would be met only if her disability
precluded her from having “any gainful employment,
” as of March 27, 2015. UA-CL-000675.
Irving's Any Gainful Occupation Disability
Period-Pulmonary Disability and Orthopedic Disability
the Plan, for Irving to receive additional benefits after
March 27, 2015-two years after the start of her “own
occupation” disability on March 27, 2013-she was
obliged to provide proof to Unum that (1) she continued to be
under the regular care of a physician for one of her claimed
disabling conditions, and (2) she was unable to perform the
duties of any gainful occupation for which she was
reasonably fitted by education, training, or experience, and
for which she could expect to earn at least 60% of her prior
earnings (as indexed) within 12 months of assuming that
position. UA-CL-000211; UA-CL-000221; UA-CL-000238.
March 27, 2015, the Administrative Record reflected that
Irving was being treated by two physicians--Dr. Kartik Shenoy
of Temple Lung Center and Dr. David Duhamel of Pulmonary
& Medical Associates of Northern Virginia. The
Administrative Record reflected that Dr. Shenoy had last
treated Irving on January 12, 2015, when he had referred her
to Dr. Duhamel. UA-CL-000952. Dr. Shenoy did not treat Irving
again; however, in response to Unum's request for his
opinion about her ability to work, Dr. Shenoy responded on
May 15, 2015, “I think she can perform a desk only job
with no lifting, sitting, pulling, etc.” UA-CL-000983.
8, 2015, Dr. Duhamel performed the first of three pulmonary
therapy treatments that were aimed at alleviating
Irving's pulmonary asthma-related disability. According
to Dr. Duhamel's notes from her follow-up appointment,
Irving was “having a somewhat rocky course post
procedure but [it] is not out of the norm for a first”
round of therapy. UA-CL-001163-1168. UA-CL-001141-1145. Dr.
Duhamel performed a second pulmonary therapy on September 18,
2015, UA-CL-001144, and a third on November 18, 2015. In
between the second and third therapies, in October 2015, Dr.
Duhamel provided Unum with supplemental records about the
treatments which showed that after the second treatment,
Irving's chest x-ray “really looks very
good.” UA-CL-001257. Dr. Duhamel told Unum that Irving
was thereafter also treated for a cough and asthma. By
December 3, 2015, Irving's asthma was “much better,
” UA-CL-001500-09. Throughout this period of pulmonary
treatment, and although the standard for coverage had shifted
from disability precluding Irving from performing her
“own occupation” to “any gainful
occupation, ” Unum continued to pay Irving benefits.
18, 2015, Unum asked Irving to confirm whether she had
received subsequent treatment from treating physicians
previously identified in her Administrative Record -- Dr.
Love (last seen June 2013) or Dr. Macedo (last seen January
2014) -- and to identify any other physician treating her.
UA-CL-001018. On June 18, 2015, Irving responded, “I
have no reason to see any of those doctors you have listed in
the attached information request. My disability issue is with
my lungs. The doctor I am currently seeing is Dr.
on July 29, 2015, Irving submitted a new disability claim to
Unum unrelated to her pulmonary issues. Instead, her claim
indicated that as of September 26, 2012 (her last date of
coverage under the policy), Dr. Pedro Steven Buarque de
Macedo (“Dr. Macedo”), a Neurologist at
Washington Medical Group, considered her disabled by hip and
lower back pain. UA-CL-001066-1068. Unum requested updated
records from Dr. Macedo and continued to pay benefits. Dr.
Macedo produced records indicating that he diagnosed
Irving's disabling condition as partial muscle tears
affecting her hip and back pain, and noted that she was
unable to perform even sedentary work. UA-CL-001066. On July
29, 2015, Dr. Macedo referred Irving for an MRI and a
surgical consultation. UA-CL-001072-1075. The surgical
consult diagnosed Irving with pelvic and thigh joint pain and
noted a decreased range of motion in her left hip and pain
during motion of both hips and upper thighs. UA-CL-001287.
August 13, 2015, Unum asked Dr. Macedo for additional
narrative pertaining to his opinion that Irving was disabled
and unable to perform even sedentary work. On October 7,
2015, Unum cautioned Irving that her records might not
support her continued eligibility for a long-term disability
benefit, noting that it would need additional medical
records, but indicating that it would continue to pay her
under a “reservation of rights.” UA-CL-001217.
Unum subsequently ...