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Fife v. Cooperative Benefit Administrators, Inc.

United States District Court, N.D. Alabama, Middle Division

September 10, 2014

KIMBERLY FIFE, Plaintiff,
v.
COOPERATIVE BENEFIT ADMINISTRATORS, INC., and the NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION GROUP BENEFITS PROGRAM, Defendants.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

This case is brought under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). The plaintiff, Kimberly Fife, alleges that defendant Cooperative Benefit Administrators, Inc. ("CBA"), wrongfully denied her long term disability ("LTD") benefits allegedly due her under a long term disability plan (the "Plan") provided by her former employer, Cherokee Electric Cooperative ("Cherokee"). (Doc. 1-1, at 3). On January 8, 2013, the plaintiff filed a document entitled "Amended Complaint" which added the National Rural Electric Cooperative Association Group Benefits Program ("NRECA") as a defendant, alleging that "[p]laintiff has long term disability protection through the National Rural Electric Cooperative Association Group Benefit Plan which is administered by Cooperative Benefit Administrators, Inc." (Doc. 9 at 1).[1]

The case is now before the court on the plaintiff's motion for summary judgment (doc. 36), the defendants' motion for summary judgment (doc. 50), the plaintiff's objection to and motion to strike portions of an affidavit offered in support of the defendants' motion for summary judgment (doc. 55), the plaintiff's objection to and motion to strike certain facts proffered in support of the defendants' motion for summary judgment (doc. 56), [2] and the plaintiff's motion to allow supplemental authority (doc. 62). For the reasons stated herein, the motion to allow supplemental authority will be GRANTED; the objection to and motion to strike portions of an affidavit offered in support of the defendants' motion for summary judgment will be treated as a objection and will be SUSTAINED; the objection to and motion to strike certain facts proffered in support of the defendants' motion for summary judgment will be treated as an objection and will be SUSTAINED in part and OVERRULED in part as noted herein; the plaintiff's motion for summary judgment will be DENIED; and the defendants' motion for summary judgment will be GRANTED.

I. THE PLAINTIFF'S MOTION TO ALLOW SUPPLEMENTAL AUTHORITY (DOC. 62)[3]

The motion will be GRANTED. The court has considered the supplemental authority and argument contained in the motion and the response thereto (doc. 63).

II. THE PLAINTIFF'S MOTION TO STRIKE (DOC. 55)

It has long been the law in this circuit that, when deciding a motion for summary judgment, a district court may not consider evidence which could not be reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2), which provides:

A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

Fed. R. Civ. P. 56(c)(2). Although the plaintiff has styled the motion as a motion to strike, the motion is, in substance, a challenge to the admissibility of the defendants' evidence. Therefore, the court will treat the motion as an objection under Rule 56(c)(2).

The advisory committee's note to Rule 56(c)(2) provides that:

[An] objection [under Rule 56(c)(2)] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Fed. R. Civ. P. 56 advisory committee's note to 2010 amendments (emphasis added).

The entirety of the plaintiff's short motion reads:

Plaintiff moves to strike the following:

The following portions of Peter Baxter's affidavit... as submitted by CBA and as attached to this Motion:
26. DMS is an independent contractor that provides services to CBA consisting of reviewing CBA's file, investigating an appeal through, among other things, consultation with consulting physicians, and providing recommendations to CBA in connection with plan participant appeals.
28. Consistent with Section 3 (d) of the agreement between DMS and the Plan, DMS provides these services solely in a consultative capacity and without having or exercising any fiduciary or discretionary authority regarding the Plan or plan participants' claims for benefits.
The contract is in evidence and speaks for itself. Mr. Baxter's characterization of the contract and the relationship of the entities is not admissible. Fife has been denied discovery so Mr. Baxter cannot be deposed.

(Doc. 55 at 1-2). The motion cites no rule of evidence, case, or other authority for why this evidence should be stricken.

This is the second motion to strike Baxter's affidavit that the plaintiff has filed. In the first such motion, which was filed as part of the response to the defendants' motion for summary judgment on the applicable ERISA standard of review, the plaintiff sought to strike the entire affidavit, arguing: "Peter Baxter's affidavit is not included in the claim file and Peter Baxter is not listed on the initial disclosures. Plaintiff objects to adding affidavits to the Administrative Record[.] Defendants are not entitled to supplement the record." (Doc. 30 at 2). In that motion as well, the plaintiff provided no legal support for her argument. The court denied the motion holding that "the issue in the instant motion is not denial of benefits. It is the proper standard of review and whether to consider an alleged conflict of interest in this case. Accordingly, the court may look outside the administrative record." (Doc. 46 at 5).

Now, in response to the instant motion, the defendants explain, and the court agrees, that the affiant's statements relate for the most part only to the capacity in which DMS functions, not the terms of any contract. Of course, as the defendants also note, the capacity in which DMS functions is only relevant to the determination of the proper standard of review. It has already been determined that the proper standard of review in this case is "arbitrary and capricious." See, doc. 46 at 33, 41. "To be admissible[, ] evidence must be relevant." Williams v. Bd. of Regents of Univ. Sys. of Georgia, 629 F.2d 993, 999 (5th Cir. 1980).[4] The defendants, upon whom the burden falls to establish admissibility, fail to show why this evidence might otherwise be relevant.[5] Accordingly, the objection to this evidence will be SUSTAINED.

III. THE PLAINTIFF'S OBJECTION TO AND MOTION TO STRIKE CERTAIN FACTS PROFFERED IN SUPPORT OF THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 56)

In an undeveloped and unsupported argument, the plaintiff argues first that materials in the administrative record which relate to the plaintiff's condition and ability to work, but which were first considered before remand by this court, should not be considered herein because "[t]he only decision under review is the opinion of the Appeals Committee... after the remand by the [c]ourt." (Doc. 56 at 1). This objection is without merit and will be OVERRULED.

The plaintiff also objects to any discussion of the plaintiff's respiratory and psychological issues "because Fife claims benefits due to pain, [f]ibromyalgia, and effects of medication." (Doc. 56 at 2). The court agrees that, to some extent, this information is irrelevant. However, as is noted in the summary judgment opinion which follows, some of that information is important to include to make the discussion of the plaintiff's medical history more clear. The objection will be SUSTAINED in part and OVERULLED in part. The court will note in the opinion where information has been excluded and included and for what reason.

IV. THE SUMMARY JUDGMENT MOTIONS (DOCS. 36 and 50)

A. Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

Although there are cross-motions for summary judgment, each side must still establish the lack of genuine issues of material fact and that it is entitled to judgment as a matter of law. See Chambers & Co. v. Equitable Life Assur. Soc. of the U.S., 224 F.2d 338, 345 (5th Cir. 1955); Matter of Lanting, 198 B.R. 817, 820 (Bankr. N.D. Ala. 1996). The court will consider each motion independently, and in accordance with the Rule 56 standard. See Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). "The fact that both parties simultaneously are arguing that there is no genuine issue of fact, however, does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit." See WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2720, at 327-28 (3d ed. 1998).

B. The Plaintiff's Failure To Comply with the Summary Judgment Scheduling Order

The plaintiff's submissions in support of her motion for summary judgment fail, in many respects, to comply with this court's summary judgment scheduling order. (Doc. 2 at 14-21). Document 36, which is the motion for summary judgment itself, is 48 pages long and is comprised of facts, argument, and in depth discussion of evidence. In addition, the plaintiff has submitted document 38, which is entitled "Plaintiff's Memorandum In Support of Summary Judgment." The length and content of the motion are a clear attempt by the plaintiff to enlarge the number of pages in which she has to argue the issues.[6] The scheduling order allows the submission of "a" brief, not "two" briefs. Document 36 will be STRICKEN to the extent that it does anything other than put the court on notice that the plaintiff has filed a motion for summary judgment. Document 48, which is the defendants' response to document 36, will also be STRICKEN.

Turning to the plaintiff's actual brief (doc. 38), it too fails to comply with this court's scheduling order. First, it fails to include a table of contents. (See, doc. 2 at 15 ("Briefs that exceed twenty pages must include a table of contents that accurately reflects the organization of the document.")). Second, the court's scheduling order states "[t]he parties' submissions in support of and opposition to summary judgment motions must consist of: (1) a brief containing, in separately identified sections, (i) a statement of allegedly undisputed relevant material facts and (ii) a discussion of relevant legal authorities." (Doc. 2 at 15). It also states that "[a]ll briefs submitted either in support of or opposition to a motion must begin with a statement of allegedly undisputed relevant material facts." (Doc. 2 at 16) (emphasis added). Not only does the plaintiff's brief not begin with the facts, it also includes an eight page introduction which includes facts and argument (doc. 38 at 1-8), a separate statement regarding the ERISA standard of review (doc. 38 at 8), and a separate statement of "issues" which reads like argument (doc. 38 at 9). In its scheduling order the court "reserve[d] the right sua sponte to STRIKE any statements of fact or responsive statements that fail to comply with these requirements." (Doc. 2 at 19) (italics in original). In accordance with that provision, pages 1-9 of the plaintiff's initial brief will be STRICKEN as in violation of the court's scheduling order. The defendants' response to these sections (doc. 49 at 7-19) is also STRICKEN.[7]

Also in contravention of this court's orders, pages 3-12 (up to the response to the defendants' statement of facts) of the plaintiff's opposition to the defendants' motion for summary judgment (doc. 57) includes additional facts and argument. That portion of document 57 will be STRICKEN. Defendants' response to this section (doc. 59 at 7-9) will also be STRICKEN.

Finally, the court's scheduling order requires that the statement of facts themselves be "set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. All statements of fact must be supported by specific reference to evidentiary submissions." (Doc. 2 at 16). The facts, as stated by the plaintiff, fail in several cases to follow these guidelines. (See doc. 38 at facts no. 1, 3, 10, 15). However, the court will not strike the plaintiff's facts, but will instead treat each sentence as a separate stated fact and determine whether it is supported by the record.

C. Facts

1. Kimberly Fife

Fife was an employee of Cherokee which is a member of the NRECA. Among the services the NRECA provides for its members is a long-term disability plan ("the LTD Plan") which is a self-insured Plan subject to ERISA. CBA, the claims adjuster, is a wholly-owned subsidiary of the NRECA. Cherokee offered the LTD Plan to its employees.

The National Rural Electric Cooperative Association Group Benefits Program has an appeals administration agreement with Disability Management Services, Inc. (DMS) to review appeals of LTD claims. DMS, in turn, hired MLS National Medical Evaluation, Inc. to obtain medical record reviewers.[8]

2. The NRECA Long Term Disability Plan

Under the Plan, a participant must be "prevented from performing any or all of the Material and Substantial Duties of [her] Own Occupation due to any accidental bodily injury [or] sickness...." (Doc. 52 at 36, § 2.04). After 24 months, a participant must be "unable to perform any or all of the Material and Substantial Duties of any Gainful Occupation." ( Id. ). "Material and Substantial Duties" are "the essential tasks of an occupation that cannot reasonably be modified or omitted, not including overtime work." (Doc. 52 at 37, § 2.12). The term "Own Occupation" is defined as

any similar job that involves Material and Substantial duties of the same general nature as the Participant's regular job at the Participating Cooperative when the disability begins. It does not mean the specific job the Participant is performing for a specific Participating Cooperative or at a specific location.

(Doc. 37 at § 2.15). Further, a claimant seeking disability payment is subject to a "Benefit Waiting Period" - a 13 week period during which she must demonstrate a "continuous Disability" before benefit payments could commence. (Doc. 52 at 35-36, 42, §§ 2.02, 7.07). Fife sought benefits in September 2010, claiming she could not work as an Accounting - Payroll Clerk.

3. Fife's Job

Fife's employer confirmed that her position as an Accounting - Payroll Clerk was "sedentary work." Fife submitted her job description with her initial LTD claim on 9/21/10, which includes:

The Accounting Clerks'/Staff Accountants' positions are assigned specific responsibilities and may be reassigned at management's discretion. Therefore, the Accounting Clerks/Staff Accountants are placed in charge or a particular accounting function but may be moved if decided upon by management. The specific major accounting areas/functions that may be assigned and reassigned are:
1. ACCOUNTS PAYABLE - JOB RESPONSIBILITIES
...
2. CONSUMER ACCOUNTING - JOB RESPONSIBILITIES
...
3. PAYROLL ACCOUNTING - JOB RESPONSIBILITIES
...
4. WORK ORDER ACCOUNTING - JOB RESPONSIBILITIES
...
5. MATERIAL ACCOUNTING - JOB RESPONSIBILITIES
...
6. GENERAL ACCOUNTING - JOB RESPONSIBILITIES
...
7. ACCOUNTING/CUSTOMER SERVICE/ENGINEERING - JOB RESPONSIBILITIES

(Doc. 65-17 at 53-57).[9] Fife's employer confirmed her position entailed, among other things, approximately 7 hours a day of sitting; 1 hour a day of talking; no lifting or carrying; "simple grasping" with both hands; but no "firm grasping, " no "fine manipulation" and no "pushing/pulling." (Doc. 36-11 at 7). The Appeals Committee also found that the plaintiff was "required to occasionally bend, squat[, ] and reach." (Doc. 36-6 at 3).

4. Fife's Medical Treatment Records [10]

a. Fife's Regular Treating Physicians[11]

Fife's complaints of fibromyalgia and neck/back pain were supported primarily by records from her treating physicians: Dr. Vishala L. Chindalore, a Rheumatologist at Anniston Medical Clinic, Dr. Ryan Rainer at Cherokee Health Clinic, and Dr. Odene H. Connor at the Pain and Wound Care Clinic.[12]

(1) Dr. Vishala L. Chindalore, M.D.

Dr. Chindalore frequently noted the plaintiff's complaints of pain and her diagnosis of fibromyalgia. (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). But he also frequently noted that Fife had good range of motion: "Both the hands, wrists, elbows, shoulders, ankles, knees and hips have good range of motion without any effusions." (Doc. 65-1 at 27 (January 23, 2009); 32-33 (April 24, 2009); at 33 (July 21, 2009); 34, 37 (March 22, 2010); and 37 (June 30, 2010)). Dr. Chindalore reported numerous times that Fife's "[l]ow back appears benign." (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Fife's lumbosacral "spine flexion" was consistently "within normal limits." (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)).

Dr. Chindalore consistently noted that Fife's "[g]ait is normal." (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Dr. Chindalore also consistently noted that Fife had "[n]o myopathy or radiculopathy." (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Fife had "[n]o vasculitic lesions."(Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Dr. Chindalore frequently noted that Fife's neck was "supple with good C-spine range of motion." (Doc. 65-1 at 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009)). On April 24, 2009, Dr. Chindalore noted that "[s]he had a lot of joint pains last time. Toradol helped her a lot." (Doc. 65-1 at 32). On March 22, 2010, he noted that "[s]he is doing reasonably well on current therapy." (Doc. 65-1 at 34). Only on December 21, 2009, did Dr. Chindalore indicate that all of the fibromyalgia "trigger points" were positive. (Doc. 65-1 at 34). Other times, both before and after that date, Dr. Chindalore noted only that "some" or "a few" of the trigger points were positive. (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); and 37 (June 30, 2010)). She was a "no show" for her October 2010 appointment with Dr. Chindalore. (Doc. 65-12 at 27).

(2) Dr. Ryan Rainer, M.D.

On August 13, 2009, the plaintiff presented to Dr. Rainer complaining of "diarrhea and abdominal cramping for 2 days, " along with "obesity." (Doc. 65-17 at 3).

On November 30, 2009, the plaintiff presented to Dr. Rainer complaining of "low back and left sciatic pain of 4 days duration without lateralizing deficits but with spasm and tenderness to palpation." (Doc. 65-17 at 2). On exam it was noted that the plaintiff had "[t]enderness to palpation over left sciatic notch and lower lumbar area without deficits." (Doc. 65-17 at 2). Dr. Rainer's impression was "[l]eft sciatica/[l]ow back pain. (Doc. 65-17 at 2). His plan was to treat the plaintiff with medications. The record is difficult to read, but it appears that one of those medications was Percocet. (Doc. 65-17 at 2).

The plaintiff next saw Dr. Rainer on February 8, 2010, with complaints of "bilateral ear and intermittent hip pain." (Doc. 65-17 at 1). Dr. Rainer's impression was "BOM/Bilateral hip pain, " and his plan was to treat her with medications. (Doc. 65-17 at 1). The names of the medications are unclear from the record.

The record reflects the following visits to Dr. Rainer solely for respiratory issues:[13]

- February 22, 2010 - cough and left ear pain for several days and myalgias (doc. 65-16 at 41); "impression/plan" was "Myalgias/LOM/Cough" and he planned to treat the plaintiff with medications "along with symptomatic treatment" (doc. 65-16 at 41);
- May 19, 2010 - cough and congestion (doc. 65-16 at 39-40);
- May 25, 2010 - congestion; prescribed Depo-Medrol and IM Rocephin (doc. 65-16 at 37-38);
- June 7, 2010 - "congestion and [a] cough;" prescribed Bicillin (doc. 65-16 at 35-36);
- June 16, 2010 - "coughing and congested" (doc. 65-16 at 33);
- June 21, 2010 - admitted to the hospital for bronchitis/bronchial spasms. (doc. 65-16 at 30-32);
- July 6, 2010 - respiratory symptoms including "side pain, wheezing [and]... "coughing" (doc. 65-16 at 28); assessment was "Chronic Bronchitis/Bronchialspams" and "Pleurisy" (doc. 65-16 at 29); prescribed medications for her conditions and referred to a pulmonologist (doc. 65-16 at 29);
- July 27, 2010 - respiratory issues and migraine headaches (doc. 65-16 at 26); assessed as having "Migraines, Sinusitis, and Asthma" (doc. 65-16 at 27); asthma noted to be stable and medications prescribed for her other conditions (doc. 65-16 at 27); and
- August 4, 2010 - coughing and shortness of breath (doc. 65-16 at 25); assessment was "Bronchitis/Asthma" (doc. 65-16 at 25); prescribed medications and referred to Dr. Grubbe (allergist). (Doc. 65-16 at 25); note indicated that plaintiff did not feel that she could return to work due to coughing and shortness of breath; advised to remain out of work. Dr. Rainer does not begin to note pain issues with the plaintiff until an August

18, 2010, visit. Even then, the plaintiff only complained to Dr. Rainer about having a cough. (Doc. 65-16 at 22). She stated to Dr. Rainer that she was "scared to go back to work now because her job is demanding and she doesn't feel she can do it currently.... feels beat down right now." (Doc. 65-16 at 22). She noted that she had seen Dr. Grubbe for her respiratory issues. (Doc. 65-16 at 22). Dr. Rainer noted that the plaintiff had seen Dr. Connor that same morning for neck pain and Dr. Connor had prescribed Percocet and Lidocane patches. (Doc. 65-16 at 22). Dr. Rainer's assessment was she had "neck pain, asthma, and Allergic Rhinitis." (Doc. 65-16 at 23). His plan was for her to continue her current medications and see her specialists. (Doc. 65-16 at 23).

Dr. Rainer saw the plaintiff on September 20, 2010, for a check up. (Doc. 65-16 at 20). Her chief complaint on that visit concerned symptoms regarding her asthma. (Doc. 65-16 at 20). Although she also complained of "neck pain, " Dr. Rainer noted that she was "seeing Dr. Connor for pain management, " that it was "going well, " and the her "TENS unit helps a lot." (Doc. 65-16 at 20). Dr. Rainer's assessment was:

Asthma, Allergic Rhinitis, possible sarcoidosis > undergoing evaluation at UAB allergy shot today.
Neck pain; back pain - seeing Dr. Connor

(Doc. 65-16 at 21).

On December 3, 2010, Dr. Rainer completed a form entitled "Long Term

Disability Benefits Claim - Attending Physician's Statement of Disability." (Doc. 65-14 at 8-9).[14] Dr. Rainer noted that the plaintiff:

- ceased work in June of 2010;
- had a primary diagnosis of "Rheumatoid Arthritis, " with a secondary diagnosis of "Lung manifestations [of Acute Respiratory Acidosis], Asthma" (doc. 65-14 at 8);
- had the subjective symptoms of "severe joint pain, severe neck pain, severe fatigue, [and] severe dyspnea" (doc. 65-14 at 8);
- had objective findings which included "[a]bnormal joints on exam, [g]eneral debility worsening over 6 months, [w]orsening lung function over 6 months" (doc. 65-14 at 8);
- had the following diagnostic tests performed "[a]bnormal pulmonary function tests, abnormal allergy testing" (doc. 65-14 at 8);
- could lift/carry less than 10 pounds occasionally; has sustained tolerance to sit for 2 hours, stand for 1 hour, and walk for 1 hour; could not use her extremities for simple grasping, pushing and pulling, or fine manipulations; was not able to climb, bend/stoop, kneel, crouch, crawl, handle, or finger; could occasionally balance between 0-2.5 hours per day; could occasionally reach above her shoulder between ...

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