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Irving v. The Unum Life Insurance Co. of America

United States District Court, D. Maryland

March 25, 2019

ROSALYN IRVING, Plaintiff,
v.
THE UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Rosalyn 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 DENIED.

         I. BACKGROUND

         A. Insurance Plan

         In 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.

         Under 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, [1] 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.

         After 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 work.” UA-CL-000238.

         Irving's 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.

         B. Irving's Own Occupation Disability Period-Pulmonary Disability Treatment

         Irving's 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.

         On July 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.[2] 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. UA-CL-000646.

         On June 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.

         C. Irving's Any Gainful Occupation Disability Period-Pulmonary Disability and Orthopedic Disability Treatment

         Under 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.[3] UA-CL-000211; UA-CL-000221; UA-CL-000238.

         On 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.

         On June 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.

         On June 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. Duhamel.” UA-CL-001024.

         Nevertheless, 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.

         On 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 ...


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