United States District Court, E.D. Michigan, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING
DEFENDANT'S MOTION FOR DECLARATORY JUDGMENT, AND DENYING
PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT
L. LUDINGTON United States District Judge
April 14, 2016 Plaintiff Jean Keskeny initiated the
above-captioned matter against Defendant United of Omaha Life
Insurance Company pursuant to the civil enforcement provision
of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 11322(a). Plaintiff
alleges that Defendant wrongfully denied her long term
disability benefits. See Compl., ECF No. 1. The
matter was referred to Magistrate Judge Patricia T. Morris
for pretrial management. See ECF No. 6. On September
23, 2016 Plaintiff and Defendant each filed a motion for
declaratory judgment on the administrative record.
See ECF Nos. 10, 11. On February 24, 2017 the
magistrate judge issued her report, recommending that
Defendant's motion be granted and Plaintiff's motion
be denied. See ECF No. 18. Plaintiff filed
objections on March 8, 2017. See ECF No. 19. For the
reasons stated below, Plaintiff's objections will be
overruled and the report and recommendation will be adopted.
Keskeny is a licensed Practical Nurse, and was employed as a
Charge Nurse by MediLodge beginning on January 5, 2009. At
the time of the relevant events, MediLodge sponsored a Group
Disability Plan (the “Plan”), which was issued
and administered by Defendant United of Omaha Life Insurance
Company. Under the Plan, Defendant agreed to pay certain
short-term disability benefits (“STD benefits”)
and long-term disability benefits (“LTD
benefits”) to covered, eligible persons who established
a qualifying disability. For the purpose of LTD benefits, the
Plan defined disability as follows:
and Disabled means that because of an Injury or Sickness, a
significant change in Your mental or physical functional
capacity has occurred in which You are:
. prevented from performing at least one of
the Material Duties of Your Regular Occupation on a part-time
or full-time basis; and
. unable to generate Current Earnings which
exceed 99% of Your Basic Monthly Earnings due to that same
Injury or Sickness.
After a Monthly Benefit has been paid for 24 months,
Disability and Disabled mean You are unable to perform all of
the Material Duties of any Gainful Occupation.
Disability is determined relative to Your ability to work. It
is not determined by the availability of a suitable position
with Your employer.
See Tr. 000013, ECF No. 9-1.
ceased working on February 4, 2013. In March of 2013,
Plaintiff filed a claim with Defendant for STD benefits,
claiming that the nature of her illness was “head &
neck pain.” See Tr. 001111. The request was
supported by documentation from Plaintiffs treating
neurologist, Doctor Steven Beall, who found that Plaintiffs
activities were limited by an inability to bend, squat,
stoop, or lift or carry any weight. Tr. 001115-16. Dr. Beall
concluded that Plaintiff “should not work til condition
healed.” Id. Defendant approved Plaintiffs
request for STD benefits beginning on February 11, 2013. Tr.
001013-14. Defendant ultimately extended Plaintiff's STD
benefits through August 11, 2013, at which time
Plaintiff's STD benefits under the Plan were exhausted.
exhausting her STD benefits, Plaintiff sought and obtained
LTD benefits from Defendant commencing on August 12, 2013.
Tr. 000863-68. In approving the LTD benefits, Defendant
relied upon Plaintiff's STD claim, as well as on medical
records obtained from North Ridge Family Practice, Doctor
Steven Beall, and Nurse Practitioner Beth Weaver. Plaintiff
proceeded to collect LTD benefits for 24 months. Therefore,
to continue receiving monthly benefits under Defendant's
Plan after August 11, 2015, Plaintiff was required to
demonstrate that she was “unable to perform all of the
Material Duties of any Gainful Occupation.”
Tr. 000013 (emphasis added).
letter dated June 25, 2015, Defendant informed Plaintiff that
her request for LTD benefits beyond August 11, 2015 was
denied. Tr. 00483-91. The denial was based upon
Defendant's finding that Plaintiff was able to perform
the material duties of gainful occupations requiring only
light or sedentary work, such as a manicurist, phlebotomist,
hospital-admitting clerk, and appointment clerk. Tr. 000488.
Defendant rejected Dr. Beall's suggestion that
Plaintiff's medical records demonstrated that multiple
sclerosis prevented her from performing such work, noting
that “[t]he examinations that we received from Dr.
Beall's office include checklists without comprehensive
examinations, impressions or plans.” See Tr.
000487. Defendant further noted that recent medical imaging
of her cervical and lumbar spine “showed degenerative
changes without significant stenosis, disc herniation or cord
compromise, ” and that “examinations did not show
any significant strength, sensation, motion or coordination
abnormalities.” Tr. 000487. Defendant also observed
that Plaintiff had continued to consume alcohol and smoke
cigarettes on a daily basis in contravention of medical
advice. Tr. 000485-87. Finally, Defendant found that
Plaintiff had not established that her other chronic
conditions of obesity, hypertension, GERD, anxiety,
COPD/asthma, sleep apnea, gastritis and hair loss caused
significant physical functional impairment.
appealed. In conducting its review of the appeal, in January
of 2016 Defendant retained neurologist Robert L. Marks, M.D.,
to conduct a medical record review. After reviewing all of
the relevant records, Dr. Marks concluded that,
“although it is very possible that demyelinating
disease such as MS is a correct diagnosis, it cannot be
considered an absolutely definitive diagnosis. Time will
eventually provide verification.” See Tr.
000079. Dr. Marks also noted that he “could not find
substantiation that the claimant was unable to arise from a
chair to stand and walk, although an assistive device may be
necessary. Basic functional use of the upper extremities,
possibly with some weakness, appeared to be present.”
See Tr. 000080. While agreeing that
“restrictions and limitations are appropriate in this
case, ” Dr. Marks warned that “caution is needed
to avoid relying too much on purely ...