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Wiley v. United of Omaha Life Insurance Co.

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

May 20, 2019

BOBBY JOHNS WILEY, Plaintiff,
v.
UNITED OF OMAHA LIFE INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION

         Plaintiff, Bobby Johns Wiley, was employed by non-party Camber Corporation as a “Senior Business Systems Analyst, ” a position that required him to provide software analysis, design, and programming support to the United States military and other departments and agencies of national government. While so employed, plaintiff was a beneficiary of group short-term and long-term disability policies issued to Camber Corporation, and administered on behalf of that corporation by defendant, United of Omaha Life Insurance Company (“defendant”). The denial of plaintiff's claim for long-term disability benefits led to this suit under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., “to recover benefits [allegedly] due to [plaintiff] under the terms of the plan.” Id. § 1132(a)(1)(B) (alterations supplied).[1] The action is before the court for decision on the parties' cross-motions for summary judgment.[2] Upon consideration of those motions, the materials available to defendant when the decision to deny plaintiff's claim was made, [3] the parties' briefs, [4] and oral arguments of counsel, the court enters the following memorandum of opinion.

         I. SUMMARY JUDGMENT STANDARDS

         Courts may grant summary judgment when the moving party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is “genuine” if there is sufficient evidence for a reasonable fact finder to return a verdict in favor of the non-moving party, and it is “material” if resolving the issue might change the suit's outcome under the governing law. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A motion for summary judgment should be granted only when no rational fact-finder could return a verdict in favor of the non-moving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (holding that summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial”). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)).[5]

         The standards for reviewing cross-motions for summary judgment do not differ from those applied when only one party files such a motion, but simply require a determination of whether either party is entitled to judgment as a matter of law on the basis of material facts that are not genuinely disputed. See, e.g., American Bankers Insurance Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. Id.[6] “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984). “Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts.” Id. at 1555-56.

         II. STANDARDS FOR REVIEWING AN ERISA PLAN ADMINISTRATOR'S DENIAL OF BENEFITS

         The Employee Retirement Income Security Act does not provide a standard for courts reviewing the benefit decisions of plan administrators. See, e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108-09 (1989). As a result, the Eleventh Circuit established the following, multi-step framework to guide reviewing courts:

(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.
(2) If the administrator's decision in fact is “de novo wrong, ” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; [on the other hand, ] if reasonable grounds do exist, then determine if [the administrator] operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was arbitrary and capricious.

Blankenship v. Metropolitan Life Insurance Co., 644 F.3d 1350, 1355 (11th Cir. 2011) (alterations supplied) (citing Capone v. Aetna Life Insurance Co., 592 F.3d 1189, 1195 (11th Cir. 2010)); see also, e.g., Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 115-19 (2008); Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1137-38 (11th Cir. 2004), overruled on other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1359-60 (11th Cir. 2008).

         It is important to note that a court's review of an ERISA plan administrator's benefit-eligibility decision “is limited to consideration of the material available to the administrator at the time it made its decision.” Blankenship, 644 F.3d at 1354 (citing Jett v. Blue Cross & Blue Shield of Alabama, Inc., 890 F.2d 1137, 1140 (11th Cir. 1989)). In that regard, the Administrative Record available to defendant when considering plaintiff's claim for long-term disability benefits was stipulated by the parties, and filed under seal as document number 25.[7] Review of those materials proved difficult, however, due to the manner in which they had been compiled. The documents were not grouped in a logical order (e.g., by date of preparation or examination, name of physician or generating entity, etc.). Numerous repetitions were scattered throughout. Many pages were not clearly legible, and the text of some was obliterated on the right margin due to the manner in which the pages had been misplaced on a copy machine screen.

         Accordingly, this court reviewed each of the 1, 545 pages of the Administrative Record, and identified those portions that appeared most relevant and material to defendant's decision, and then organized them in chronological order. The product of that work was provided to counsel in advance of oral arguments, and is reproduced in the “APPENDIX” to this opinion. Counsel were directed, in advance of oral arguments, to compare the materials summarized in the appendix to the administrative record, and to determine whether this court had overlooked any portions that counsel believed relevant and material to defendant's decision (and, if so, to identify the additional portions by page numbers). The additional materials referenced by plaintiff's counsel were filed as doc. nos. 39 and 41, and those identified by defendant's attorneys were filed as doc. no. 38.

         III. DISCUSSION

         The Group Long-Term Disability policy issued to Camber Corporation and administered on behalf of that entity by defendant provided that: “If You become Disabled due to an Injury or Sickness, while insured under the Policy, We will pay the Monthly Benefit shown in the Schedule in accordance with the terms of the Policy. Benefits will begin after You satisfy the Elimination Period shown in the Schedule.”[8] The policy defined “disability” and “disabled” as follows:

Disability and Disabled mean that[, ] because of an Injury or Sickness, a significant change in Your mental or physical functional capacity has occurred in which:
a) during the Elimination Period, [9]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 b) after the Elimination Period, You are:
1. prevented from performing at least one of the Material Duties of Your Regular Occupation on a part-time or full-time basis; and
2. 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 2 years, 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 or inability to work. It is not determined by the availability of a suitable position with the Policyholder.

Doc. no. 25, at 370 (italics in original, alteration and footnote supplied).

         “Injury” was defined as meaning “an accidental bodily injury that requires treatment by a Physician. It must result in loss independently of Sickness and other causes. Disability resulting from an injury must occur while You are insured under the Policy.” Id. In contrast,

Sickness means a disease, disorder or condition, including pregnancy, that requires treatment by a Physician. Disability resulting from a sickness must occur while you are insured under the Policy. Sickness does not include elective or cosmetic surgery or procedures, or resulting complications. Sickness includes the donation of an organ in a non-experimental organ transplant procedure.

Id. at 372 (italics in original).

         Two other policy terms, “Material Duties” and “Regular Occupation, ” were defined as follows:

Material Duties means the essential tasks, functions, and operations relating to an occupation that cannot be reasonably omitted or modified. In no event will We consider working an average of more than the required Full-Time hours per week in itself to be a part of material duties. One of the material duties of Your Regular Occupation is the ability to work for an employer on a full-time basis.

Id. at 371 (italics in original).

Regular Occupation means the occupation You are routinely performing when Your Disability begins. Your regular occupation is not limited to Your specific position held with the Policyholder, but will instead be considered to be a similar position or activity based on job descriptions included in the most current edition of the U.S. Department of Labor Dictionary of Occupational Titles (DOT). We have the right to substitute or replace the DOT with another service or other information that We determine to be of comparable purpose, with or without pay. To determine Your regular occupation, We will look at Your occupation as it is normally performed in the national economy, instead of how work tasks are performed for a specific employer, at a specific location, or in a specific area or region.

Id. at 372 (italics in original).

         A. Application of Circuit Framework to Administrative Record

         1.Apply the de novo standard to determine whether the claim administrator's benefits-denial decision iswrong' (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.”[10]

         Following review of the evidence contained in those portions of the administrative record referenced in the Appendix and doc. nos. 38, 39, and 41, this court finds that plaintiff suffered from a number of medically determinable physical impairments that limited his ability to perform most of the material duties of his regular occupation as a Senior Business Systems Analyst with Camber Corporation, and to maintain the attention and concentration required to perform repetitive analytical tasks on a sustained basis, which were essential functions of his position.

         Accordingly, defendant's decision that plaintiff could perform all of the essential functions of his job, and that he was not entitled to long-term disability benefits, was “wrong.”

         2.If the administrator's decision in fact is ‘de novo wrong,' then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.”[11]

         Camber Corporation's long-term disability policy affirmed that defendant possessed discretion to review claims and determine eligibility for benefits.

By purchasing the Policy, the Policyholder [Camber Corporation] grants Us [defendant, United of Omaha Life Insurance Company] the discretion and the final authority to construe and interpret the Policy. This means that We have the authority to decide all questions of eligibility and all questions regarding the amount and payment of any Policy benefits within the terms of the Policy as interpreted by Us. Benefits under the Policy will be paid only if We decide, in Our discretion, that a person is entitled to them.

Doc. no. 25, at 365 (alterations supplied); see also doc. no. 22 (“Joint ERISA Report of [the] Parties”), ¶ 7 (stipulating that “the applicable policy delegates discretionary authority to United of Omaha to determine eligibility for benefits and interpret the provisions of the policy”).[12]

         3.If the administrator's decision is ‘de novo wrong' and he was vested with discretion in reviewing claims, then determine whether ‘reasonable' grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).”[13]

         Defendant's vocational consultant classified plaintiff's position of Senior Business Systems Analyst as “Sedentary, ” which means that it involved “sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.” Doc. no. 25, at 905 (citing U.S. Department of Labor's Dictionary of Occupational Titles).[14]

         Defendant's medical consultant found that plaintiff could “sit up to six hours in an eight-hour workday; and stand and walk up to six hours in an eight-hour workday.” Id. at 984.

         Both of the foregoing findings were contradicted by claimant's treating physicians.

         Plaintiff's neurologist, Dr. Christopher LaGanke, diagnosed plaintiff's primary medical condition as demyelinating disease, [15] which caused parethesia, [16] pain, fatigue, and weakness, and which had been objectively confirmed by electromyography (“EMG”)[17] and electroencephalogram (“EEG”) studies, [18] magnetic resonance imaging (“MRI”) scans, [19] laboratory work, and physical and neurological examinations.[20] In addition, Dr. LaGanke diagnosed plaintiff as suffering from fibromyalgia, [21] peripheral neuropathy, [22] lumbar radiculopathy, [23] cervical stenosis, [24]myelopathy, [25] arthritis, migraine headaches, and IgG deficiency.[26]

         As a result of the foregoing conditions, and following surgeries on plaintiff's lumbar and cervical spine during December of 2014, [27] Dr. LaGanke restricted plaintiff to sitting for not more than four hours during an eight-hour workday. See doc. no. 25, at 413. Four hours is half, not “most, ” of an eight-hour workday. Dr. LaGanke also limited plaintiff to standing for not more than one to two hours, and walking for one to two hours during the remaining four hours of a normal workday. Id.[28] Obviously, as defendant's attorney acknowledged during oral argument, if plaintiff's conditions limited him to standing for only one hour and walking for only one hour, in addition to four hours of sitting, he would not be able to complete a full, eight-hour workday. Further, during the six hours that plaintiff could work, Dr. LaGanke directed him to alternate between sitting, standing, and walking every ten to fifteen minutes. Id. at 414. There is no evidence in the administrative record indicating that plaintiff could perform the material duties of his regular occupation with such frequent changes in position - especially in view of the additional restriction noted by Dr. LaGanke on plaintiff's “Use of [his] hands in repetitive actions” (e.g., typing on a keyboard ). Id. at 413 (alteration supplied).[29]

         The restrictions imposed by Dr. David Francis, plaintiff's primary care physician, were even more restrictive than those of Dr. LaGanke. Dr. Francis diagnosed plaintiff as suffering from back pain and weakness due to disc disease and peripheral neuropathy that had been objectively confirmed by MRI scans and nerve conduction studies, and limited him to a total of only three hours of sedentary work during any given workday: specifically, one hour of sitting; one hour of standing; and one hour of walking. See doc. no. 25, at 431.[30] Dr. Francis also concluded that plaintiff was not able to: “Perform repetitive, or short cycle work”; “Perform at a constant pace”; or “Work alone or apart in physical isolation from others.” Id.[31] He concluded that plaintiff could do “no work, ” and that he “never” would be able to return to his prior level of functioning. Id. at 432; see also id. at 1363 (same).

         It is true that neither of plaintiff's treating physicians responded to the letters mailed by defendant, requesting each to agree with defendant's contrary conclusions about plaintiff's functional abilities. While the doctors' non-responsiveness was (to say the least) not helpful to their patient, the court finds that their failure is entitled to little weight in evaluating the reasonableness of defendant's decisions. Indeed, the failure of treating physicians to respond to a follow-up request for additional information is no reason to disregard medical diagnoses that have been well documented by extensive records of physical examinations, supporting tests, and actual treatments conducted over a period of years. Ignoring the breadth and depth of such objective evidence allows insurance companies to subvert meritorious claims by simply increasing the paperwork burden on a claimant's physicians.

         In summary, defendant lacked reasonable grounds to support its conclusion that plaintiff was able to perform all of the material duties of his regular occupation on a full-time basis. Based upon the assessments of both of plaintiff's treating physicians, plaintiff is unable to sit for most of an eight-hour workday, and he is unable to perform any combination of work functions on a full-time basis. Because there were no reasonable grounds for defendant's decision to deny plaintiffs long-term disability benefits, that decision was arbitrary and capricious, and due to be overturned.

         4.If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; [on the other hand, ] if reasonable grounds do exist, then determine if he operated under a conflict of interest.[32]

         This court concludes that defendant lacked reasonable grounds to deny plaintiffs claim for long-term disability benefits. Consequently, the administrator's decision will be reversed by separate order[33]

         DONE.

         APPENDIX

         SUMMARY OF MATERIAL FACTS CONTAINED IN THE ADMINISTRATIVE RECORD (Document No. 25)

         A. Medical Evaluations Prior to May 20, 2013

         1. October 8, 2010: neurological evaluation - the initial examination of plaintiff by Cullman, Alabama neurologist Dr. Christopher LaGanke occurred on Friday, October 8, 2010, after which Dr. LaGanke dictated the following information for plaintiff's medical records:

HPI [i.e., History of the Present Illness]: Mr. Wiley is a 41 YORHM [presumably, a 41 Year-Old, Right-Handed Male] seen in consultation from Dr. Francis [i.e., Dr. David A. Francis, plaintiff's Decatur, Alabama primary care physician] for pain and ataxia.[34] The patient states that he started having significant pain about 10 months ago. The hips and knees bilaterally are most affected. He states that he has a hard time getting up on stage without crutches. He hobbles on flat ground and is quite unsteady on his feet. He has been diagnosed with RA [Rheumatoid Arthritis] and OA [Osteoarthritis] and there has been a suspicion of fibromyalgia. This past month he has had 2 episodes of sleep paralysis.[35] He has had periods of numbness from his neck distal.[36] Since age 23 he has had a constant headache with occasional superimposed migraine. Pt [Patient] denies any diplopia, [37] dysphagia, [38] and dysarthria.[39] Pt denies any bowel or bladder dysfunction.

Doc. no. 25, at 849 (alterations and footnotes supplied).[40]

         Dr. LaGanke's initial impression of plaintiff's presenting complaints was that he suffered from “Myelopathy”[41] and a “Mixed headache disorder.”[42] Id. at 851. Dr. LaGanke recommended that plaintiff's primary care physician prescribe “CK, ”[43]“aldolase, ”[44] and “Consider Decadron.”[45] Id. In addition, because plaintiff had never been subjected to a magnetic resonance imaging (“MRI”) scan, [46] Dr. LaGanke ordered that one be performed of his cervical spine.

         (a) Cervical spine scan.

         The scan occurred at the Heritage Diagnostic Center in Cullman, Alabama on Monday, October 11, 2010.[47] Dr. LaGanke's evaluation of the images were stated as follows: HISTORY: Spinal stenosis.[48]

TECHNIQUE: Sagittal and axial images[49] are obtained throughout the cervical spine without the administration of Gadolinium [i.e., an MRI contrast substance[50].
FINDINGS: On T2 weighted imaging, [51] there are two hyperintensive areas at the ventral [i.e., front] portion of C2 which are felt to likely represent artifact. At ¶ 4-5, there is a mild central disc protrusion with thecal impingement[52] but no significant stenosis. At ¶ 5-6, there is a broad based central disc protrusion with no significant stenosis. At ¶ 6-7, there is a broad based central disc protrusion without significant stenosis. Opposite the C6 vertebral body, there is bilateral uncovertebral spurring.[53]

Id. at 853 (alterations and footnotes supplied).[54] Based upon those findings, Dr. LaGanke revised his diagnosis of plaintiff's condition, stating that he suffered from “Mild to moderate multilevel degenerative cervical disc disease.” Id.[55]

         2. January 7, 2011: neurological evaluation. Plaintiff was again examined by Dr. LaGanke three months later, on Friday, January 7, 2011. The record of that examination noted that plaintiff had “been diagnosed with fibromyalgia since his last visit.” Id. at 854. Dr. LaGanke dictated the following notes at the conclusion of his examination:

HPI: Mr. Wiley presents in F/U [follow-up] of his myelopathy and mixed headache disorder. He states that he continues to hurt all over. He has been diagnosed with fibromyalgia since his last visit. He was given Lortab[56] but stopped it after 4 days because it didn't seem to help. He continues to have periodic limb numbness that can last up to 5 hours and some weakness. He still hobbles because of pain. He believes that he hurts more with weather changes. Pt denies any diplopia, dysphagia, or dysarthria. Pt denies any bowel or bladder dysfunction. Since his last visit his muscle enzymes returned [to] normal and his C-spine MRI scan revealed cervical stenosis. His headaches are stable.

Doc. no. 25, at 854 (alterations and emphasis supplied). Dr. LaGanke's revised diagnostic impression was that plaintiff suffered from: fibromyalgia;[57] cervical stenosis;[58] arthritis; and, a “Mixed headache disorder.” Id. at 855. He recommended that plaintiff's primary care physician continue his previously-prescribed medications and start him on “Savella” to better manage the pain associated with fibromyalgia.[59] Id.

         3. October 25, 2011: Rheumatology Consultation at Vanderbilt. Plaintiff's primary care physician, Dr. David A. Francis, referred plaintiff to Dr. Kevin J. Myers at the Vanderbilt University Medical Center in Nashville, Tennessee, for a rheumatology consultation and evaluation of his leg pain. The examination occurred on Tuesday, October 25, 2011. Plaintiff then was 42 years of age. Dr. Myers dictated the following notes for file:

Present illness: Mr. Wiley has been in fair general health. The current problem started about 8 years ago. He was having pain in the low back, and his chiropractor told him that he had some arthritis in the spine. A few years later, both legs started to swell and hurt persistently. Support hose and lasix[60] were used, and he believes that restless legs syndrome might have been diagnosed. The pain worsened if he was on his feet a lot, and also worsened if he was off his feet for long. He largely took no medication for this. By 2010, he would have days when he could not move anything from the neck down for a few minutes on arising. This seemed to worsen, and in May 2010, he had a spell of bad chest pain. MI [myocardial infarction - a heart attack[61] was excluded, and he was eventually told that this was due to “arthritis.” He was sent to neurology to see if he might have MS [Multiple Sclerosis].
He states that bulging disks were noted in the neck, and it was suggested that these disks might be the source of his intermittent paralysis. It is not clear what the brain MRI showed - likely nothing.
In January he fell due to loss of balance, and since then he walks with a cane. He feels as though his “spine is being torn apart with a knife.” He takes toradol chronically[62] and Ultram, [63] and a little hydrocodone.
He was told a few years ago that he might have Fibromyalgia. Savella was tried, and helped, but he could not urinate while on it. He was then given Cymbalta[64] (in combination with Savella), and got hives.
He is very inactive - he does some walking at work, but with a cane. His right leg is numb off and on. He does continue to go to a chiropractor.
A few years ago he was traveling, and had to do a lot of walking at Disneyland. He feels that the problem started then.
He has a lot of nausea in recent months, and just had endoscopy for this.
His appetite is good, and weight stable.
He has not had trouble with infections in the past year.

Id. at 932 (footnotes and alterations supplied).

         Dr. Myers dictated the following opinions following a physical examination, X-Rays, laboratory tests, and review of plaintiff's past medical records:

Assessment and Plan: Mr. Wiley presents with severe pain through the upper and lower back, with spells of weakness. His examination is fairly normal other than revealing tenderness. His laboratory studies are also normal. I do not think that he has any form of primary rheumatologic disorder. I cannot address the question of multiple sclerosis here, but it is obvious that his syndrome would be quite atypical for it, and discussion with him suggests that an MRI of the brain was entirely normal. He does have follow up on this issue.
I think it is far more likely that his problem is in the category of fibromyalgia. Fibromyalgia would often give rise to diffuse severe upper and lower back pain, which cannot be explained through the finding of disk abnormalities on MRI scans.
He did considerably better while on treatment with Savella. It is possible that a different form of agent directed at anxiety would be helpful to him, without causing the same urinary side effect. I suggested a trial of zoloft at 50 mg daily.[65]
I would consider raising the doses if he tolerates the drug well.
I do not think that Toradol is the best agent for chronic use, particularly in an individual who is having significant gastrointestinal problems. He should try changing to an anti-inflammatory that causes less gastrointestinal upset.
He will switch to relafen, [66]1000 mg daily, and decide after a week or two if this is similarly effective for pain control.
I do think that he should make an effort to exercise some.
I do not have any major form of treatment to recommend other than this.
He is going to continue follow-up with his primary care provider, and I will be available to him on an as needed basis.

Id. at 933-34 (emphasis and footnotes supplied).

         4. March 30, 2012: neurological evaluation and MRI scans. The next neurological examination by Dr. LaGanke occurred on Friday, March 30, 2012. His report of that evaluation states:

HPI: Mr. Wiley presents in follow up of his fibromyalgia and arthritis. He states that he still has muscle aches which have been worse in the cold weather. He has had bilateral lower extremity muscle spasms that were acutely worse in-between Thanksgiving and Christmas for two weeks and two other periods of time since his last visit. He has occasional urinary incontinence. He states that his headaches have been fairly well controlled except for periodic migraines. He was unable to tolerate the Savella or the Cymbalta for his fibromyalgia. He states that his headache was worse after he applied the last Butrans patch.[67]He has been to a rheumatologist at Vanderbilt and was told that he had no active rheumatoid arthritis. He denies any diplopia, dysphagia or dysarthria.

Id. at 856 (emphasis and footnote supplied).[68] Dr. LaGanke revised his opinion of plaintiff's conditions and diagnosed him as suffering from “myelopathy/ demyelinating disease, ” migraine headaches, and fibromyalgia. Doc. no. 25, at 858. Myelopathy is a “general term for a disorder in which the tissue of the spinal cord is compressed and this leads to spinal cord dysfunction.”[69] A demyelinating disease is any condition that results in damage to the protective covering (“myelin sheath”) that surrounds nerve fibers in a person's spinal cord.[70] When the myelin sheath is damaged, nerve impulses slow or even stop, causing neurological problems.

Multiple sclerosis (MS) is the most common demyelinating disease of the central nervous system. In this disorder, [a patient's] immune system attacks the myelin sheath or the cells that produce and maintain it. This causes inflammation and injury to the sheath and ultimately to the nerve fibers that it surrounds. The process can result in multiple areas of scarring (sclerosis).[71]

         Dr. LaGanke increased plaintiff's prescription for “Butrans” to 10 mcg (i.e., micrograms), [72] and recommended that he submit to MRI scans of his cranium (brain) and cervical and thoracic spines. Id. The MRI scans were performed later that same day, and the radiological evaluation of each was recorded as follows.

         (a) Brain scan

HISTORY: Demyelinating disease.
TECHNIQUE: Sagittal, axial and coronal images[73] are obtained throughout the cerebrum without the administration of Gadolinium.
FINDINGS: On FLAIR imaging, [74] there are a couple of deep subcortical frontal hyperintense lesions in the superior portion. On T1 weighted imaging, there are no abnormal hypointense lesions. Within the inferior portion of the maxillary sinus cavity there is an increased signal on FLAIR imaging as there is mucoperiosteal thickening in the ethmoidal and frontal sinus cavities. On diffusion weighted imaging, there are no abnormal areas of restricted diffusion. The craniocervical junction is normal.
IMPRESSION:
1. Scant areas of cerebral white matter change[75] most consistent with microangiopathic change.[76]
2. Mild sinus inflammatory disease.

Id. at 859 (footnotes supplied).[77]

         (b) Cervical spine scan-

HISTORY: Myelopathy.
TECHNIQUE: Sagittal, axial images are obtained throughout the cervical spine prior to and after the administration of gadolinium.
FINDINGS: At ¶ 4-5, there is a central disc profusion with thecal impingement but no significant stenosis. There is mild bilateral neural foraminal narrowing[78] at this level. At ¶ 5-6, there is a broad-based central disc protrusion with annular tear but no significant stenosis. At ¶ 6-7, there is a minimal central disc protrusion without significant stenosis. There is left facet arthropathy[79] at this level and mild left neural foraminal narrowing. The intrinsic qualities of the cervical spinal cord appear normal. The craniocervical junction[80] is normal.
IMPRESSION: Mild cervical degenerative disc disease.[81]

Id. at 860 (footnotes supplied).

         (c) Thoracic spine scan-

HISTORY: Myelopathy.
TECHNIQUE: Sagittal and axial images are obtained throughout the thoracic spine without the administration of gadolinium.
FINDINGS: At ¶ 3-4, there is a mild central disc protrusion. From T4-6, there is a central area of increased signal on T2 weighted imaging consistent with a syrinx. This is quite small in size but does appear to be different than a remnant notochord.[82]
IMPRESSION:
1. Apparent small thoracic syrinx[83] from T4-5.
2. Mild thoracic degenerative disc disease.

Id. at 861.[84]

         5. August 17, 2012: neurological evaluation. Dr. LaGanke's next neurological evaluation of plaintiff occurred four-and-a-half months later, on Friday, August 17, 2012. He dictated the following notes following his examination:

HPI: Mr. Wiley presents in follow up of his fibromyalgia and demyelinating disease. He states that his balance continues to be off. He stumbles alot [sic] but has not fallen. He had jaw surgery in June and developed a secondary infection and his immune system became weakened. He had numerous upper respiratory infections. He has taken alot [sic] of antibiotics since his last visit. He states that his migraines have improved. His emotions vary to not being able to control them to not having any crying outbursts. He has had a thoracic MRI scan which revealed a syrinx. He denies any diplopia, dysphagia or dysarthria.

Id. at 862 (emphasis and alterations supplied).[85] Dr. LaGanke again revised his diagnosis of plaintiff's conditions following this examination, and recorded that he suffered from: frequent infections; periodic PSA;[86] fibromyalgia; migraine headaches; demyelineating disease; and syringomyelia of the thoracic spine. Doc. no. 25, at 864. Syringomyelia refers to the development of a fluid-filled cyst (“syrinx”) within a person's spinal cord.[87] Over time, the cyst may enlarge, damaging the spinal cord and causing pain, weakness, and stiffness, among other symptoms.

Syringomyelia has several possible causes, though the majority of cases are associated with a condition in which brain tissue protrudes into [a patient's] spinal canal (Chiari malformation). Other causes of syringomyelia include spinal cord tumors, spinal cord injuries and damage caused by inflammation around [a patient's] spinal cord.[88]

         Dr. LaGanke recommended that plaintiff return in three months for a battery of thoracic and cranial MRI scans. Id.

         6. December 21, 2012 MRI scans and neurological evaluation. Plaintiff's next neurological evaluation did not occur until four months later, however. Prior to his physical examination on Friday, December 21, 2012, plaintiff was subjected to two MRI scans. The radiological evaluation of each reads as follows:

         (a) Brain scan

HISTORY: Demyelinating disease
TECHNIQUE: Sagittal, axial and coronal images are obtained throughout the cerebrum without the administration of Gadolinium.
FINDINGS: On FLAIR imaging, there are a few bilateral deep subcortical frontal white matter hyperintense lesions. On T1 weighted imaging, there are no abnormal hypointense lesions. In comparison with MRI scan from 3-30-12, there are no additional lesions noted.
IMPRESSION:
A few areas of white matter change most consistent with microangiopathy.89 Clinical correlation is recommended. These findings are stable over the past[89]months.

Id. at 869 (footnote supplied).[90]

         (b) Thoracic spine scan

HISTORY: Thoracic syrinx
TECHNIQUE: Sagittal and axial images are obtained throughout the thoracic spine with the administration of Gadolinium.
FINDINGS: BetweenT4 and T7, there is a central area of increased signal on T2 weighted imaging. A similar central area of increased signal is noted between T10 and T12. The intervertebral disc space and vertebral bodies appear normal.
IMPRESSION:
Probable stable thoracic syrinx versus central notochord.

Id. at 870.[91]

         (c) Evaluation notes. Following his physical examination of plaintiff, Dr. LaGanke dictated the following notes:

HPI: Mr. Wiley presents in follow up of his demyelinating disease and fibromyalgia. He states that since his last visit he was involved in a motor vehicle accident on 9/20/2012. He states that numerous bones on the left side of his body were broken. He had a crushed diaphragm and a collapsed lung.[92]With the pelvic fractures he has had more difficulty controlling his bladder. He states that he is having more bladder loss with standing or sitting. He has had more tremor. His cranial MRI scan from earlier today was reviewed in the clinic and revealed no new or enhancing lesions. He had a few stable white matter lesions. His thoracic spine MRI scan revealed a probable thoracic syrinx versus notochord.

Id. at 866 (emphasis and footnote supplied).[93] Dr. LaGanke's revised diagnoses of plaintiff's conditions following this examination and review of the foregoing MRI scans were recorded as follows: fibromyalgia; “S/P MVA” [presumably, Status/Post Motor Vehicle Accident]; thoracic syrinx; and, demyelinating disease. Id. at 867. He recommended that plaintiff continue his previously-prescribed medications and return for a follow-up examination in four months. Doc. no. 25, at 867.

         7. April 26, 2013 neurological evaluation. Plaintiff reported as instructed for neurological evaluation four months later, on Friday, April 26, 2013. The report dictated by Dr. LaGanke provided that:

HPI: Mr. Wiley presents in follow up of his fibromyalgia and demyelinating disease. He states he still has not healed from the motor vehicle accident he had on 9/12. He states he has permanent lung damage from the motor vehicle accident. He is also going to have left shoulder surgery soon for a torn rotator cuff. He has constant pain in the shoulder. His fibromyalgia pain is worse and definitely worse in the colder weather. For the past couple of days the pain has been more intense. He states that he has intermittent left leg numbness and pain. He has had a couple of near syncopal episodes. He states that his migraines have been well controlled. He is tolerating his IVIG therapy [i.e., intravenous immunoglobulin therapy] well though it usually induces headaches and pain for a couple of days after he completes the treatment.

Id. at 871 (emphasis supplied).[94] Intravenous immunoglobulin (“IVIG”) therapy assists patients with weakened immune systems or other diseases to fight off infections.[95]

         Dr. LaGanke again revised his diagnoses of plaintiff's conditions as follows: “729.1 FIBROMYALGIA was added”;[96] “IgG deficiency”;[97] and “Left shoulder pain.” Id. at 873. He recommended that plaintiff continue his IVIG therapy, take 10 mg of Decadron[98] when finishing his IVIG therapy, lower his dosage of Savella, and return for a follow-up evaluation in four months. Id.

         B. May 20, 2013: Plaintiff's first claim for short-term disability benefits

         Plaintiff lodged two claims for short-term disability benefits prior to the long-term disability claim that is the subject of this appeal. The first was submitted on May 20, 2013, and claimed benefits for injuries sustained in a work-related motor vehicle accident that occurred on Thursday, September 20, 2012. See id. at 328 (“Accident occurred 9/20/2012 while working for Jacobs Technology. Camber Corporation took over contract in Dec. 2012. Doctors determined in Mar 2013 that more surgery is required to fix damaged shoulder.”).[99]

         Defendant denied that claim on June 4, 2013, stating as a reason for doing so that plaintiff had applied for and received workers' compensation benefits for the injuries to his left shoulder. See id. at 316-19. The policy language on which the denial was based provided that benefits would not be paid “for any Disability which . . . arises out of or in the course of employment with the Policyholder for which You are entitled to benefits under any workers' compensation or occupational disease law, or receives [sic] any settlement from the workers' compensation carrier . . . .” Doc. no. 25, at 20.

         C. Medical Evaluations After April 26, 2013, But Before December 3, 2014

         1. August 30, 2013: neurological evaluation.

         As instructed, plaintiff returned to Dr. LaGanke's office four months after his previous visit, on Friday, August 30, 2013. He was not examined on that occasion by Dr. LaGanke, however, but by another physician in the professional corporation, Pamela Quinn, M.D.[100] Dr. Quinn dictated the following report of her evaluation:

HPI: Mr. Wiley is here for follow up for demyleinating disorder, migraines, fibromyalgia and weakness.
STATES, STOPPED SAVELLA, BLADDER WOULDN'T EMPTY.
STILL SOME PAIN FROM MVA.
Ambulating with cane.
Fibromyalgia was great until bladder would not empty.
Does not want to ever try lyrica.[101]
Cannot tolerate cymbalta - hives.
Taking ultram tid [three times a day].[102]
Taking toradol prn[103]
Has been taking tons of Tylenol - sometimes 6 extra strength Tylenol in 4 hour span.
Last MRI: 12/2012

Id. at 874 (all caps in original, emphasis, alteration, and footnotes supplied).[104] Dr.

         Quinn issued a prescription for ninety 300 mg Neurontin capsules, [105] to be taken three times a day (with the possibility of up to four refills), and instructed plaintiff to return in two weeks when he was scheduled for another “infusion” (presumably, another IVIG therapy). See id. at 876.

         2. September 13, 2013: neurological evaluation. Plaintiff was re-examined by Dr. Quinn two weeks later, on Friday, September 13, 2013. Her notes included the following information:

HPI: Mr. Wiley is here for follow up for demyelinating disease.
The pain is the same as it was.
Neurontin us [sic] helping. Initially caused dizzines [sic].
He initially missed a day of work because of the dizziness.
He is now able to tolerate it tid. He did notice some dizziness last night.
Continues on tramadol.[106]
He is getting an infusion today.
HA [presumably, headaches] have been stable.
STATES NEURONTIN NOT HELPING THE PAIN, CAUSING DIZZINESS AND NAUSEA.

Id. at 877 (alterations and footnote supplied, all caps in original).[107] Dr. Quinn concluded her examination by directing plaintiff to increase his dosage of Neurontin to two 300 mg capsules three times each day, and to return for a follow-up examination in four weeks. See id. at 879.

         3. October 11, 2013 neurological evaluation. Plaintiff reported as instructed four weeks later, on Friday, October 11, 2013, and Dr. Quinn dictated the following notes following her examination:

HPI: Mr. Wiley is here for revisit for HA [headaches], Demyelination, Fibromyalgia, muscle weakness and cervical myelopathy He says that he has had some falls recently.
His legs just got weak and he sank to the floor.
The dizziness has improved.
He seems to be having increased numbness in his legs.
His feet feel cold to him but not to the touch.
Neurontin has helped with the pain.
STATES: FOLLOW UP. BILATERAL LEG NUMBNESS GETTING WORSE. COLDNESS IN FEET. FELL AT WALMART TWO WEEKS AGO.

Id. at 880 (alteration and emphasis supplied, all caps in original).[108] Dr. Quinn recommended: that plaintiff continue his IVIG therapy, his prescribed dosage of Neurontin, and his use of a cane when walking; that Dr. LaGanke schedule additional MRI scans of plaintiff's brain and lumbar spine; and, that plaintiff return for re-evaluation following the MRI scans. Doc. no. 25, at 882.

         4. October 21, 2013 MRI scans. The scans of plaintiff's brain and lumbar spine recommended by Dr. Quinn were conducted ten days later, on Monday, October 21, 2013. The radiological reports read as follows.

         (a) Brain scan

HISTORY: Demyelinating disease.
TECHNIQUE: Sagittal, axial and coronal images are obtained throughout the cerebrum prior to the administration of Gadolinium. Axial and coronal images are obtained after administration of Gadolinium.
FINDINGS: On FLAIR imaging, there are a couple of 1 mm hyperintense lesions in the deep subcortical frontal white matter. On T1 weighted imaging, there are no abnormal areas of hypointensity. After the administration of Gadolinium, there are no abnormal areas of enhancement. The craniocervical junction is normal. On diffusion weighted imaging, there are no abnormal areas of restricted diffusion.
IMPRESSION:
Minimal microangiopathic change.

Id. at 884.[109]

         (b) Lumbar spine scan

HISTORY: LS [i.e., lumbrosacral] radiculopathy
TECHNIQUE: Sagittal and axial images are obtained throughout the lumbar spine and without the administration of Gadolinium.
FINDINGS: At ¶ 4-5, there is a disc protrusion eccentric to the left and bilateral facet arthropathy resulting in moderate bilateral neural foraminal narrowing. At ¶ 5-S1, there is a left sided disc protrusion with moderate left neural foraminal narrowing. Within each lumbar vertebral body and the sacral bodies there are hyperintense circular areas on both T1 and T2 weighted imaging consistent with hemanglomata. After the administration of Gadolinium, there are no abnormal areas of enhancement.
IMPRESSION:
1. Lumbosacral degenerative disc disease most prominent at ¶ 4-5 and L5-S1.
2. Multiple vertebral body hemanglomata.

Id. at 883 (alteration supplied).[110]

         5. November 22, 2013: neurological evaluation. The next neurological evaluation occurred on this date, one month after the foregoing MRI scans of plaintiff's brain and lumbar spine. The examination was again conducted by Dr. Quinn, who dictated the following notes for plaintiff's records.

HPI: Mr. Wiley is here for follow up for back pain and demyelination.
He is still having lots of back pain.
Continues having bladder issues.
His MRI of the lumbar spine showed some bugling [sic] disc.
He was not stable [sic] to start PT because of his insurance.
He is doing decompression at the chiropractor.
BP [i.e., blood pressure] is elevated today.
MRI of the brain stable.
Fibromyalgia stable.
HA stable.
Taking tramadol prn [i.e., as needed for] pain. Continues on gabapentin.[111]
STATES, HAVING SOME INCONTINENCE OF URINE, WORSE OVER THE LAST 2-3 WEEKS AND SINCE THE CAR ACCIDENT, NEURONTIN NOT HELPING. WAS TAKEN OFF METROPROLOL PER WORKMANS COMP, AND BLOOD PRESSURES HAVE SHOT UP.

Id. at 886 (footnotes supplied, all caps in original).[112] Dr. Quinn increased plaintiff's prescribed dosage of Neurontin to 600 mg capsules four times daily; continued his prescription for tramadol (Ultram®); recommended that he resume use of Metoprolol;[113] consult his primary care physician about bladder issues; and return for a follow-up neurological examination in twelve weeks. Id. at 888.

         6. February 14, 2014: neurological evaluation. Plaintiff returned for his follow-up neurological evaluation precisely twelve weeks later, on Friday, February 14, 2014. He was again examined by Dr. Quinn, who dictated the following notes for his medical records.

HPI: Mr. Wiley is here for follow up.
Still having lots of back pain.
He got some ultram from his family doctor which helps a bit.
His BP is stable.
Fibromyalgia stable.
HA stable.

Id. at 889.[114] Dr. Quinn's notes reflect that she scheduled plaintiff for an epidural injection and ordered a “DDS-500 belt for him.” Doc. no. 25, at 891. A DDS-500 spinal decompression belt is a “Spinal-Air Decompression Brace LSO [i.e., lumbar sacral orthosis] with Anterior and Posterior Rigid Panels” that is designed (according to the manufacturer of the patented technology) to decrease

axial loading while increasing intervertebral disc space by anchoring underneath the rib cage pushing upwards and against the pelvic girdle pushing downwards. This action gently stretches the torso vertically and displaces stress away from the affected disc and nerve. Pressure and pain levels, within the lumbar spine region, is significantly reduced which can assist active-rehabilitation.[115]

         7. February 21, 2014 examination by primary care physician. Dr. David Francis dictated the following notes at the conclusion of his February 21, 2014 examination of plaintiff:

Complaint:
Mr. Wiley is here for his health maintenance visit.
Patient is here for follow up of hyperlipidemia. Condition is well controlled with treatment regimen. He is currently asymptomatic.
He is here for follow up of gastroesophageal reflux disease. He denies dyspepsia or dysphagia and says symptoms controlled with current treatment regimen.
Patient is here for follow up of chronic back pain. The condition is reported as controlled on current medical regimen and no progression or worsening of the same. In with Dr. Leganke [sic] still and looking at eipdurals [sic] in next month. Still contemplating surgery for same.
Patient is here for follow up of a migraine headache. Condition is well controlled with treatment regimen. He is currently asymptomatic.
He is in today for follow up of pre-diabetes. He states that condition is well controlled with current treatment regimen. At present, he is asymptomatic.

Id. at 1383 (emphasis and alterations supplied).

         8. April 11, 2014 neurological evaluation. Plaintiff returned to the office of Dr. LaGanke on Friday, April 11, 2014, and was again examined by Dr. Quinn. She ...


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