Roleau V. Liberty Life

Case Name: Michelle R. Rouleau v. Liberty Life Assurance Company of Boston

Court: U.S. District Court for the Western District of Michigan.

Date of Decision: January 25, 2017.

Type of Claim: Long Term Disability under 29 U.S.C. § 1132(a)(1)(B), a civil enforcement provision of the Employee Retirement Security Act (“ERISA”).

Insurance Company: Liberty Life Assurance Company of Boston.

Claimant’s Employer: Sparrow Hospital.

Claimant’s Occupation / Job Position: A Registered Nurse.

Disabilities: Intractable lower back pain, assessed as thoracolumbar spine pain, thoracic disc displacement, thoracic spondylosis, lumbar spondylosis, and myofascial pain. The plaintiff has had a lumbar facet rhizotomy for lumbar spine pain, bilateral facet block procedures, a series of epidural injections, and a left transforaminal epidural steroid injection. As conservative treatments failed, she underwent a lumbar fusion surgery. Although her back pain initially improved, she continued to have “a lot of left leg pain,” which limited her walking. She was not able to return to work, and she became eligible for long-term disability benefits effective September 4, 2012.

Ms. Rouleau continued to seek treatment for her pain. On October 22, 2012, Dr. Andary reported the results of an electrodiagnostic evaluation of Ms. Rouleau. He noted that Ms, Rouleau had undergone epidural steroid injections without lasting success and a back surgery with fusion. Ms. Rouleau reported no pain in her right leg after surgery, but pain in her lower back and left leg had persisted. She described the pain as a five to six out of ten. She noted that she “stumbles sometimes because she catches her left toe and foot when she is walking as it does fatigue.” Dr. Andary found no electrodiagnostic evidence for certain conditions that could have explained her symptoms. He suspected that nerve root irritation caused her symptoms.

Ms. Rouleau saw Dr. Winkelpleck again on October 30, 2012, after having an injection for left total knee pain. She told him that she still had some numbness in her toes but that the pain in her left leg now extended only to her knee instead of all the way to her foot. Her back pain was minimal. Again the relief did not last. In December 2012, Ms. Rouleau returned to Dr. Winkelpleck for an evaluation after having injection therapy for her continued lower left extremity pain following lumbar fusion and decompression. She stated that the injection provided no relief. She complained principally of “left gluteal and lateral thigh pain on the left side.” Her back pain was still “there but nothing compared to the left lower extremity radicular component.” Ms. Rouleau was “frustrated and wants to know what to do next as far as alleviating her pain.”

Ms. Rouleau saw Dr. Winkelpleck again on February 12, 2013. His notes state that she “continues to have left lower extremity and gluteal pain. Her back pain is not significant at this point. It is more of an annoyance. The foot pain that was present and just burning all the time has resolved and now the pain is more proximal in the gluteal region . . . .” Dr. Winkelpleck found that “at this point it’s reasonable to proceed with a spinal cord stimulator trial in the pain clinic.”

He commented that Ms. Rouleau “has not returned to work but will consider returning to work as long as there is a sit stand option that does not require a lot of bending and lifting which is reasonable.” He planned to see her again after a spinal cord stimulator trial.

Ms. Rouleau returned to the Pain Management Center in February 2013 for evaluation forvspinal cord stimulation. It was noted that Ms. Rouleau had received epidural steroid injections over the course of months, most recently in October and November of 2012; that she had lumbar fusion surgery in June 2012; and that she was not a candidate for another surgery. After evaluation, Dr. Gundamraj and Nurse Simons (R.N., M.S.O.S.), sent Ms. Rouleau’s case to “case conference with multi-disciplinary meeting of physicians, case managers, pain psychology, nurse practitioners, and physical therapy to further determine plan of care.”

Dr. Gundamraj and Nurse Simons noted that Ms. Rouleau “suffers from severe pain, which has been present for more than one year . . . [and] has failed to achieve satisfactory pain relief with all modalities of multidisciplinary pain management, including interventional techniques, cognitive-behavioral psychotherapy, medication management, and rehabilitation.” They commented that Ms. Rouleau’s “pain remains significant, limits activities of daily living, and severely diminishes [her] quality of life.”

Dr. Winkelpleck evaluated Ms. Rouleau on February 12, 2013. He noted that she “continue[d] to have left lower extremity and gluteal pain” and that “her back pain is not significant at this point.” He commented that foot pain “that was present and just burning all the time has resolved and now the pain is more proximal in the gluteal region[;]” and that “[s]he does have difficulty sleeping on the left side.” He determined that “[a]t this point it’s reasonable to proceed with a spinal cord stimulator trial [at] the plain clinic.” He stated that Ms. Rouleau “has not returned to work but will consider returning to work as long as there is a sit stand option that does not require a lot of bending and lifting which is reasonable.” He added that he would see her again after the spinal cord stimulator trial at the pain clinic. A note from Dr. Winkelpleck dated February 12, 2013, is addressed “to whom it may concern” and states that Ms. Rouleau will remain off work through March 22, 2013, for ongoing treatment for back pain, and that it remained to be determined when she would return. A note from Dr. Winkelpleck dated February 12, 2013, is addressed “to whom it may concern” and states that “Ms. Rouleau is under my medical care. She may NOT work at a position with direct patient care. However, she would be able to work in a sitting position with a sit to stand option, without bending, lifting, or twisting.”

Dr. Camala Riessinger, a psychologist from the Pain Management Center, evaluated Ms. Rouleau on March 13, 2013. (Id., PageID.261.) Ms. Rouleau indicated to Dr. Riessinger that she was eager to work again. Dr. Riessinger found Ms. Rouleau “very motivated to do everything she can to improve her condition.” Dr. Riessinger administered the MMPI-2 in April 2013 “to better understand this patient’s level of functioning, her ability to cope with chronic pain, and to help with treatment planning to see if she is a good candidate from a psychological standpoint for an implantable pain control device.” Dr. Riessinger found that Ms. Rouleau “has no evidence of a thought disorder . . . no history of substance abuse . . . [and] realistic expectations with regard to the stimulator.” Ms. Rouleau had a trial spinal cord stimulation procedure on June 17, 2013.

At the time of her discharge, Ms. Rouleau reported that the spinal cord stimulation was providing approximately 80 % coverage of the previously painful area and 50% pain relief. The next day, she reported pain relief that was “significant” but “not complete,” and a pain score of eight out of ten. The treating physician, Dr. Silverstein, reprogrammed the device, after which Ms. Rouleau reported “100% coverage of the primary painful areas with about 50% pain relief, at least while sitting, standing, and walking briefly in the office.” The day after that, Ms. Rouleau had a pain score of three out of ten.

In July 2013, Defendant hired a company to conduct surveillance on Ms. Rouleau’s home. Surveillance of the residence took place on July 6, 7, 8, 9, 13, and 16, 2013. Surveillance yielded no sign of Ms. Rouleau engaged in any activity on four of the six days: July 6, 7, 8, or 16. On July 9, surveillance yielded video of Ms. Rouleau totaling approximately 12 minutes. The report states that the video “depicts the claimant as she walked, bent at the waist several times, appeared to clean the interior of the vehicle and entered the vehicle. The claimant appeared to ambulate in a normal manner, without restrictions of the use of visible medical devices.” The report describes the video quality as “average.” On July 13, surveillance yielded video of Ms. Rouleau totaling approximately 90 minutes. According to the report, the video depicts Ms. Rouleau “walking, bending at the waist, using a pool skimmer to clean a pool, moving several pieces of outdoor furniture, using a leaf blower and garden hose, traveling by car, getting gas, setting up an outdoor canopy, and conversing with others. The report notes that “the claimant appeared to ambulate in a normal manner, without restrictions of the use of visible medical devices.” The report describes the video quality as “fair.”

Ms. Rouleau had permanent placement of a spinal column stimulator on September 9, 2013. The next month, she presented at the Pain Management Center with intermittent mild to moderate pain. Her pain score ranged from three to five out of ten. She reported approximately 75% coverage of previously painful areas and a pain reduction of approximately 50%. She reported that she had been “able to increase her activities significantly,” albeit with flares of pain during activity. Overall, she was pleased with the results of the spinal cord stimulator. Two months later, she continued to report the same degree of coverage and pain relief. Her pain score ranged from three at best to five or six at worst. She described her pain as intermittent, “moderate pain of aching intensity, increasing particularly with standing and walking or bending.” Her pain continued to interfere with her sleep. The record reflects that in addition to her back pain, Ms. Rouleau had carpal tunnel syndrome in both hands. She reported to Dr. Horner in 2012 that she had pain at a level seven or eight out of ten in her left hand; numbness in both hands; and had been dropping things. The condition worsened. Dr. McDermott performed carpal tunnel surgery on both her hands in the fall of 2013. Surgery ameliorated the carpal tunnel symptom, but numbness and tingling remained present. Ms. Rouleau completed Activities Questionnaires at Liberty’s request in 2012, 2013, 2014. The questionnaires track the deterioration the medical records reflect.

In August 2012, two months after lumbar fusion surgery, Plaintiff indicated she could sit one to two hours; stand half an hour; and walk for half an hour. She spent approximately ten hours a day in bed. On July 22, 2013, she indicated she could sit for 45 minutes to an hour; stand fifteen minutes; and walk for fifteen minutes. She needed assistance in grocery shopping, cleaning, and doing laundry. Asked to describe in her own words what prevented her from engaging in any gainful employment, she answered, “pain in back – leg pain – difficulty in sitting standing and walking for any length of time . . . can carry light objects – difficulty walking up stairs.” On January 2, 2014, in her final activities questionnaire, Ms. Rouleau indicated there had been no change in the amount of time she could sit or stand and that she now spent fourteen hours a day in bed. She could drive a car for forty-five minutes. She needed assistance in grocery shopping, carrying groceries, cooking, cleaning, and doing the laundry.
In response to the question asking what prevented her from engaging in any gainful employment, she wrote, “no change.”

Definition of Disability in the Plan/Policy: Policy defines “disability” or “disabled” to mean that “during the Elimination Period and the next 24 months of Disability the Covered Person, as a result of Injury or Sickness, is unable to perform the Material and Substantial duties of [her] Own Occupation.” The Policy further provides that after the 24 month period ends, “disability” or “disabled” means that “the Covered Person is unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation.”

Benefits Paid? Yes. Defendant has never disputed that Ms. Rouleau was entitled to benefits throughout the “own occupation” period. In April 2014, as the beginning of the “any occupation period” in September approached, Defendant referred Ms. Rouleau’s medical file for peer review, to prepare for the end of the two-year “own occupation” period of benefits in September 2014.

Basis For Denial / Termination of Benefits: Relying exclusively on Dr. Patel’s opinion for medical context, a vocational specialist determined that Ms. Rouleau would be capable of performing other occupations. Accordingly, Defendant concluded that Ms. Rouleau was not entitled to benefits under the Policy once the “own occupation” period expired. Defendant terminated Ms. Rouleau’s benefits effective September 4, 2014.

Procedural history: Ms. Rouleau appealed the decision. On appeal, Defendant again concluded that Ms. Rouleau was not entitled to benefits because, according to Defendant, she could perform work in other occupations.
This lawsuit ensued.

Key Physician Opinions:

Towards the end of the 24 month “own occupation” period, Dr. Patel conducted the peer review for the insurance company. Dr. Patel reviewed Ms. Rouleau’s medical records but did not examine Ms. Rouleau personally. Dr. Patel did not speak with any of Ms. Rouleau’s medical providers directly. Dr. Patel opined that based on the medical evidence, the claimant would be capable of lifting 20 pounds occasionally and sitting up to one hour at a time, for a total unrestricted sitting in an 8 hour day with the ability to change positions for comfort. Standing and walking would be unrestricted. Prognosis is good for return to full time work with above restrictions and limitations. The above restrictions would be considered permanent due to the chronic nature of claimant condition.

As part of the claimant’s appeal, her primary care physician, Dr. Schaar, completed Liberty’s Attending Physician’s Assessment of Capacity form in February 2015. He opined that Ms. Rouleau had uncontrolled pain; could not function full-time in an occupational setting; and that this condition was permanent. Dr. Schaar’s report was part of the record Defendant considered in deciding Ms. Rouleau’s appeal.

Issues: In this case, the parties agree that Rule 500.2202 applies to the Policy, and the applicable standard of review is de novo. Where the de novo standard applies, the role of the reviewing court is to determine whether the denial of benefits was the “correct decision.” Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 1990). The plaintiff bears the burden of proof, and a preponderance of the evidence standard applies. Javery v. Lucent Technologies, Inc. Long Term Disability Plan for Management or LBA Employees, 741 F.3d 686, 700-701 (6th Cir. 2014). The court must review the “record before the administrator” without granting “deference . . . or any presumption of correctness” to the administrator’s determination. Id. The de novo standard of review “applies to the factual determinations as well as to the legal conclusions of the plan administrator.” Wilkins, 150 F.3d at 613. A court should not hear or consider evidence not presented to the plan administrator in connection with a claim. Perry, 900 F.2d at 966. Indeed, a court must “simply decide[] whether or not it agrees with the decision under review.” Id.

Holdings: A preponderance of the evidence weighs in favor of a benefits award. The record evidence includes, without limitation, Ms. Rouleau’s treatment records from the Sparrow Pain Management Center, which span February 2011 through December 2013 and encompass both medical and psychological reports; treatment records from the MSU Spine Center, spanning June 2012 through September 2013; a June 2012 post-operative report from Sparrow Hospital; records of radiology imaging and other diagnostic testing throughout 2011 – 2013; records of treatment for carpal tunnel syndrome in 2012 and 2013; Dr. Patel’s Peer Review Report of March 2014; the Transferrable Skills Analysis/Vocational Review dated April 10, 2014; Dr. Schaar’s Assessment of Capacity dated February 5, 2015; Ms. Rouleau’s Activities Questionnaires; and the award of disability benefits by the Social Security Administration.

The administrative record includes both subjective and objective evidence of Ms. Rouleau’s impairment. The Court gives great weight to the Social Security Administration’s (“SSA”) determination that Ms. Rouleau is totally disabled from employment. It is well-established that “[a] determination that a person meets the Social Security Administration’s uniform standards for disability benefits does not make her automatically entitled to benefits under an ERISA plan, since the plan’s disability criteria may differ from the Social Security Administration’s.” DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 445-46 (6th Cir. 2009). But the SSA’s determination is “far from meaningless.”

(1) Here, Defendant Liberty Life encouraged Ms. Rouleau to apply for Social Security disability benefits and financially benefited from her award of disability benefits. Defendant says that it reached different conclusion from the Social Security Administration because, unlike the Social Security Administration, it was not required to follow the treating physician rule. Defendant fails to explain why it afforded greater weight to Dr. Patel’s file review than to the reports of Ms. Rouleau’s own treating physicians. In its de novo review, the Court weighs the SSA determination heavily.

(2) The Court also particularly credits the records of Ms. Rouleau’s treatment at the Pain Management Center. These records reveal a clear pattern in which Ms. Rouleau for years experienced severe pain in her back and lower extremities; received treatment that helped in the short-term; and the return of her pain. The records reflect that Ms. Rouleau continued to experience pain ranging between a three and six out of ten even after permanent implantation of the spinal cord stimulator. Her pain ebbed and flowed but was always present. Dr. Riessinger, the psychologist at the Pain Management Center noted explicitly that Ms. Rouleau expressed eagerness to return to work and was not a malingerer.

(3) The Court assigns less weight to Dr. Patel’s report. Although the Sixth Circuit has stated unequivocally that there is “nothing inherently objectionable about a file review by a qualified physician in the context of a benefits determination,” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005), the court has also approved assigning more weight to evidence from a treating physician than a record reviewer who did not conduct an in-person evaluation. See Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 806 (6th Cir. 2002) (“The evidence presented in the administrative record did not support the denial of benefits when only Provident’s physicians, who had not examined Hoover, disagreed with the treating physicians.”). “Whether a doctor has physically examined the claimant is indeed one factor that we may consider in determining whether a plan administrator acted arbitrarily and capriciously in giving greater weight to the opinion of its consulting physician.” Kalish v. Liberty Mutual/Liberty Life Assurance Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005); see also Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“Plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician.”).

(4) The Court finds credible Ms. Rouleau’s descriptions of her condition on the Activities Questionnaires she requested. The record reflects that Ms. Rouleau was eager to return to work. Her self-reports on Activities Questionnaires are consistent with the medical evidence. No one who treated Ms. Rouleau suggested she exaggerated her pain in any way. Her medical providers repeatedly noted her frustration with her ongoing pain and her desire to find relief.

(5) Liberty points to the results of video surveillance as further evidence to support the denial of benefits. The Court views this evidence as neutral at most. It does not appear that Liberty actually relied on the surveillance evidence in making its decision to deny benefits to Ms. Rouleau at the end of the “own occupation” period. Liberty does not mention the surveillance in its correspondence to her regarding its denial of her claim. Moreover, the surveillance video is consistent with Ms. Rouleau’s own account of her condition. Surveillance revealed no activity at all on most of the days surveillance took place. The activity that surveillance did show was limited and offers little support for Liberty’s position. In the video of Plaintiff unloading what appear to be groceries from her car, she moves slowly and gingerly. She takes frequent breaks. Her posture is stooped. After she bends down to reach into the car, she stands up slowly and with effort. Nothing about the video of her unloading the car suggests she is able to maintain even a short period of activity without frequent breaks. The surveillance company itself describes the quality of the video of Ms. Rouleau working in the area around her pool as only “fair.” In that video, Ms. Rouleau appears to move slowly and take frequent breaks. Nothing about the video dictates a conclusion that Ms. Rouleau was capable of employment. The Court assigns no weight to the video surveillance.

Noteworthy court comments: ”The Court discounts Dr. Patel’s opinion for multiple reasons. Dr. Patel never examined Ms. Rouleau. It is undisputed that the file materials on which he based his opinion were incomplete. These materials did not include Ms. Rouleau’s medical records from 2011 and did not include her self-reports on Liberty’s Activities Questionnaires. Nor did the file materials Dr. Patel reviewed include the SSA’s finding that Ms. Rouleau was totally disabled from working. Dr. Patel’s report does not take into account the variable nature of pain. Nor does his report explain how he extrapolates from the limited medical evidence he reviewed that, even if Ms. Rouleau could sit for up to one hour with an option to stand, she could also do so for eight hours a day without any restrictions on her standing and walking. For all of these reasons, the Court assigns little weight to Dr. Patel’s report.

Summary: None of Liberty’s arguments persuade the Court that a denial of long-term disability benefits to Ms. Rouleau is appropriate. Everyone who treated Ms. Rouleau, and even Dr. Patel, who reviewed only a portion of her medical records, recognized that Ms. Rouleau objectively had health problems. Everyone recognized that her health problems made it impossible for her to care for patients directly, her “own occupation.” No one suggests Ms. Rouleau had any inclination to malinger or exaggerate her condition. There is a clear pattern over the years of escalating treatments required to address her pain. The SSA found Ms. Rouleau totally disabled from working. The preponderance of the evidence – indeed, the great weight of the evidence – reflects that Ms. Rouleau remained “disabled” as the Policy defines it even after the expiration of the “own occupation” period and is therefore entitled to the long-term disability benefits she seeks.

Disclaimer: This was not a case handled by disability attorney Nick A. Ortiz. The court case is summarized here to give readers a better understanding of how Federal Courts decide long term disability ERISA claims.

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