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Deroo v. Unum Life Insurance Company of America

United States District Court, E.D. Michigan, Southern Division

April 10, 2019




         This matter is presently before the Court on cross-motions for judgment[1] [docket entries 17 and 18]. Each side has responded to the other's motion. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing.


         Plaintiff has brought this action under 29 U.S.C. § 1132(a)(1)(B) to challenge defendant's decision to stop paying her long-term disability (“LTD”) benefits under a group insurance policy issued by plaintiff's employer, Beaumont Hospital. Defendant, the plan administrator, has counterclaimed for reimbursement of a portion of the LTD benefits it allegedly overpaid due to the fact that plaintiff has been awarded Social Security disability insurance benefits which, under the policy, are considered income that must be deducted from the LTD benefits.

         The parties agree that the Court's review is de novo. See Def.'s Br. at 12; Pl.'s Br. at 12-13. “When conducting a de novo review, the district court must take a ‘fresh look' at the administrative record but may not consider new evidence or look beyond the record that was before the plan administrator.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir. 1998). This standard of review applies “with respect to both the plan administrator's interpretation of the plan and the plan administrator's factual findings.” Id. The review “is without deference to the decision or any presumption of correctness, based on the record before the administrator.” Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir. 1990).

         Having carefully reviewed the 1, 955-page administrative record (hereinafter “AR”), as well as the parties' lengthy briefs, the Court finds and concludes that plaintiff is entitled to LTD benefits under the policy and that defendant's termination of those benefits was contrary to the policy.

         Under the policy, plaintiff is entitled to LTD benefits if, due to sickness or injury, she is under the regular care of a physician and is “unable to perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training or experience”[2] (AR at 121). The policy defines “gainful occupation” as “an occupation that is or can be expected to provide you with an income within 12 months of your return to work, that exceeds . . . 60% of your indexed monthly earning, if you are not working” (AR at 139).

         Procedural History and Record Evidence

         Plaintiff applied for LTD benefits in April 2012 due to “left lower extremity lymphedema” (AR at 49). Plaintiff worked at Beaumont Hospital as a “Clinical Nurse II, ” a fulltime registered nurse (“RN”) position that involved providing patient care (AR at 67, 88). Plaintiff had stopped working in October 2011 (AR at 88) due to the pain and swelling in her left leg which had begun in 1994 but had “progressively gotten worse in past year” (AR at 92). Plaintiff indicated that she could not continue working because she was “unable to stand/sit for prolonged periods of time; increase in pain/swelling with activity” (AR at 93).

         In June 2012, defendant approved the claim, finding that plaintiff's disability began in October 2011 and that she was “unable to perform the material and substantial duties of your occupation due to the symptoms related to your medical condition of Lymphedema of the left leg” (AR at 276). One of plaintiff's treating physicians, Dr. Justin Riutta, M.D., opined in April 2012 that plaintiff's lymphedema caused her “significant restrictions with standing and walking which preclude her from return to work” and that “[s]he will be off work for the next three months” (AR at 188). Another of plaintiff's treating physicians, Dr. Cordell Yoder, M.D., opined in June 2012 that plaintiff “is unable to stand or keep leg in a dependent [sic] [for more than] three minutes” (AR at 249). Based on the opinions and records of these physicians, defendant agreed that plaintiff was “precluded from performing the material and substantial duties of her occupation” (AR at 270). However, defendant intended to contact plaintiff “in approx 2 months to monitor her response to treatment as prognosis is unclear at this time.” Id.

         In August 2012, defendant asked plaintiff to apply for Social Security disability insurance benefits (AR at 329). Plaintiff did so, and in July 2014 an Administrative Law Judge (“ALJ”) decided the claim in plaintiff's favor (AR at 687-92). The ALJ also found that plaintiff's disability onset date was January 25, 2012 (AR at 692).

         In the meanwhile, in April 2014, defendant terminated plaintiff's LTD benefits on the grounds that “you are able to perform the duties of other gainful occupations” (AR at 655). By this time, defendant had paid LTD benefits for 24 months and therefore the stricter definition of disability now applied. Defendant believed that plaintiff was capable of performing full-time sedentary work in “Nurse Triage” or “Nurse Consulting” positions. Id. Plaintiff appealed this decision and, ten months later, defendant reversed itself and reinstated plaintiff's LTD benefits (AR at 1143-45). In a February 2015 letter to plaintiff's attorney, defendant stated that “[t]he information that was submitted on appeal supports [that] your client remains disabled under the policy, ” based, in particular, on the ALJ's favorable decision and on Dr. Riutta's and Dr. Yoder's “opinions of your client's functional capacity” (AR at 1143).

         In October 2016, defendant again decided that plaintiff was not disabled under the policy because “significant improvements in her level of functional capacity” enabled her to work as a Triage Nurse or Medical Claims Review Nurse, sedentary jobs that “would allow for elevating her leg at waist level intermittently during breaks” (AR at 1726-27). Defendant found improvement in plaintiff's condition because in 2016 she was wrapping her leg two to three times per week, compared to three to four times per week in 2014; recent records showed that plaintiff “is attending fitness classes and walking”; and recent “findings reflect normal tone, gait and range of motion” (AR at 1727-28). In July 2017, defendant rejected plaintiff's appeal of this decision (AR at 1912- 20). Regarding plaintiff's need to elevate her leg, defendant found that “the suggested alternative occupations identified above would be compatible with her stated need to 1) elevate her left leg to waist level for 30 minutes during the workday, which can be accomplished during prescribed lunch breaks and/or 2) elevate the leg at waist level intermittently during breaks” (AR at 1915).

         In accordance with its obligation to “take a fresh look, ” Wilkins, supra, the Court shall summarize the relevant portions of the voluminous record in some detail.

         Plaintiff's Statements

         In September 2012, in response to inquiries by defendant, plaintiff described her usual daily activities as follows:

On a usual day I have a shower in the morning followed by a 30-40 minute session of manual lymphatic drainage (MLD) performed by myself. From there I don a compression garment. I am only able to do light housekeeping provided I get frequent rest periods to elevate my leg and perform lymphatic massage. In the evenings I perform another round of MLD followed by a complex wrap of short stretch bandaging and compression foam. This is worn at least 6 hours each evening with light range of motion exercises recommended by physical therapy.

(AR at 348). Asked what “needs to occur before you can return to work, ” plaintiff wrote: “Prior to my return to work, the swelling and pain need to improve. I am unable to walk long distances, unable to run, unable to put pressure on my leg such as lifting and bending and kneeling. Currently I require frequent rest period to elevate and massage my leg” (AR at 349).

         In the “function report” plaintiff completed in October 2012 as part of her application for Social Security disability insurance benefits, plaintiff indicated that she is “unable to sit, stand, squat, kneel or walk for any period of time. Due to the pain and discomfort of this condition I require frequent rest periods with elevation of my leg” (AR at 792).

         In February 2014, plaintiff responded to a telephone inquiry from defendant by indicating that she “is able to drive, but only short distances and that she is only able to sit for 30 minutes max before she has to elevate her leg due to pain and swelling” (AR at 585). Plaintiff further indicated that she “is able to do light household chores and takes brakes [sic] while doing same because she is not able to be on her feet for any prolonged period and will sit and elevate her leg as needed.” Id. Similarly, in April 2014, plaintiff told defendant that her symptoms were “all the same with pain and swelling if she is on her feet for any length of time” and that “sitting causes problems and she will elevate her leg to heart level and changes positions freq from walk/stand to sit” (AR at 590).

         In August 2016, in response to a written inquiry from defendant, plaintiff indicated that she could not return to work because “[p]ain and swelling prevent me from activity. I need frequent breaks and elevation for my leg” (AR at 1448).

         In February 2017, plaintiff told vocational counselor James Fuller that “my pain is really severe, it goes to an 8 even with medication” and that she needs to “elevate my left leg throughout the day, a pillow under it at night, the swelling is terrible, the range of motion is terrible” (AR at 1794).

         The ALJ's Decision

         In his July 2014 decision, ALJ J. William Callahan found plaintiff's severe impairments to be lymphedema, depression, and obesity, and her residual functional capacity (“RFC”) to be, in addition to other limitations, for “light work . . . except: the claimant must elevate her left lower extremity to waist level for 30 minutes during the workday” (AR at 689). The ALJ summarized the medical evidence of plaintiff's lymphedema as follows:

The record shows a history of left leg pain and swelling dating back to 1994. These symptoms began worsening in October 2011. However, on January 25, 2012, the claimant was found to have marked edema in the left lower extremity, despite compliance with her prescribed treatment of compression, elevation, and decongestive physical therapy. Subsequent progress notes document the claimant's aching and heavy leg pain. The claimant's prescribed treatment also includes a narcotic pain reliever.
The claimant receives extensive treatment from Justin Riutta, M.D., an acute pain management specialist, who recommended that the claimant remain off work until achieving full decongestion of her left lower extremity to avoid worsening symptomatology. At a follow-up in June 2012, Dr. Riutta indicated that “significant restrictions” with standing and walking precluded the claimant's return to work. Specifically, Dr. Riutta began the claimant's walking regimen at 10 minutes of walking per day. However, in July 2012, the claimant [sic] symptoms worsened. Dr. Riutta reported that the claimant had a progression of fluid that was resulting in gait dysfunction, pain, and generalized weakness in the left lower extremity. Diagnostic testing performed in August 2012 confirmed the abnormal lymphatic flow in the claimant's left leg.
In October 2012, Dr. Riutta recommended a daily walking regimen of five minutes per day, increasing one minute per week. He also indicated that the claimant could not stand more than 15 minutes at a time before exacerbating her edema. The record continues to show consistent treatment with Dr. Riutta. Most recently, in October 2013, Dr. Riutta reported that the claimant was experiencing pelvic pain with walking that was likely due to the weight her of [sic] left leg. Dr. Riutta observed that the claimant continued to have pronounced lymphedema that limited the claimant's ability to stand and walk. In addition, Dr. Riutta recommended that the claimant remain off work for an additional six months. In December 2013, the claimant was evaluated by Moises Alviar, M.D., a consultative examiner, who observed continued marked swelling in the claimant's left lower extremity.

(AR at 690; citations to exhibits omitted). Based on the medical evidence and the other evidence of record, including the testimony of a vocational expert, the ALJ concluded that plaintiff is disabled under the Social Security Act because “there are no jobs in the national economy that the individual could perform” (AR at 692). The ALJ recommended that plaintiff's case be reviewed in twelve months because “[m]edical improvement is expected with appropriate treatment.” Id.

         Plaintiff's Treating Physicians, Drs. Riutta and Yoder

         Dr. Riutta

         In July 2012, Dr. Justin Riutta, M.D., indicated that plaintiff could not sit for extended periods, that she “has weakness and pain in left lower extremity and gait dysfunction, ” and that her leg is wrapped “23 hours per day” (AR at 307). He noted that plaintiff “has been attempting to increase her activity and is able to walk one mile three times per week, ” that she ...

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