WILLIAM T. LAWRENCE, Senior District Judge.
Before the Court are the parties' cross motions for summary judgment. The motions are fully briefed, and the Court, being duly advised,
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001). The fact that the parties have filed cross-motions for summary judgment does not alter the standard set forth in Federal Rule of Civil Procedure 56. When evaluating each side's motion, the Court simply "construe[s] all inferences in favor of the party against whom the motion under consideration is made." Metro Life. Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).
The facts of record relevant to the Court's decision are as follow.
Defendant Lilly Extended Disability Plan ("the Plan") is an employee benefit plan for employees of Eli Lilly and Company ("Lilly"). Plaintiff Cathleen Kennedy was an employee of Lilly and, as such, participated in the Plan.
Kennedy began working at Lilly in 1982. In January 2007, Kennedy began experiencing symptoms that continued to worsen and eventually led to a diagnosis of fibromyalgia in April 2008. By December 2007, her symptoms had become so severe that she determined she was no longer able to work. Kennedy eventually applied for long-term disability benefits under the Plan; those benefits were approved effective May 1, 2009. The applicable definition of "disability" in the Plan at that time was, in relevant part, "the inability of an Employee to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience." Record at 131.
In 2010, Anthem Life and Disability ("Anthem"), the Plan administrator, reviewed Kennedy's claim. By that time, the Plan's definition of "disability" had been amended. The new version provided two definitions of "disability." The one that applied to Kennedy in 2010— because she had not been receiving benefits for more than 24 months at that point—was the inability to perform her own occupation. Anthem had Kennedy complete a questionnaire about her activities and symptoms and requested and reviewed records from Dr. John Condit, Kennedy's treating rheumatologist, as well as her treating psychiatrist and urologist. Anthem then requested a peer review from Dr. Ara Dikranian, who is board certified in rheumatology and internal medicine.
Id.
In September 2010, at Anthem's request, Kennedy underwent an independent medical examination performed by Dr. Steven Neucks, a rheumatologist.
Id. at 375-76. Dr. Neucks opined that Kennedy "cannot do sustained high stress activities over 40 to 50 hours a week," and that she "has to be able to maintain her regimen of rest and exercise and to be in a relatively modified or stress free environment." Id. at 376. He opined that she was limited to lifting 25 pounds occasionally and 15 pounds frequently; she needed to avoid repetitive, high-volume activity; she would need the ability to get up and move around for several minutes every hour; she would need to take off one or two days per month for "restoration"; posture maintenance would be "difficult" for her; and she was limited to working 30-35 hours per week at a low-stress job. Id. As a result of these restrictions, he opined that she was unable to return to her previous job as a Human Resources Director/Manager, which was an executive level position that indisputably was not "low-stress" and which required more than 40 hours per week and a high level of cognitive function. He further opined that the expected duration of her impairment would be two years from the date of his exam.
In April 2011, Anthem obtained an annual disability update form from Kennedy and an attending physician statement from Dr. Condit, who opined on May 11, 2011, that Kennedy could not work "full-time in a role with significant responsibilities," could not "return to work doing complex tasks," and would, in his opinion, "never" "recover sufficiently to perform the duties of" either her regular job or "any other type of work." Id. at 50-51.
In March 2012, Sedgwick Claims Management Services ("Sedgwick") became the administrator of the Plan. In June 2012, Lilly asked Dr. Condit again to complete an Attending Physician Statement form and provide updated office notes. The instructions to Dr. Condit stated: "We require objective clinical information that supports your patient's inability to return to work due to reduced functional capacity." Id. at 1029. Dr. Condit listed Kennedy's diagnoses as nonarticular rheumatism, fibromyalgia, sleep disorder, depression, irritable bowel syndrome, and restless leg syndrome. He indicated that he believed Kennedy to be permanently disabled and unable to "remain on feet for >1 hour at a time or sit at desk for >2 hrs. straight." Id. at 1031. Where asked to "[d]escribe objective/clinical findings to warrant disability, including severity and duration based [sic] the patient's presentation during office visits," Dr. Condit wrote "diffuse pain, sleep disorder, fatigue." Id. at 1030. In his office notes dated June 21, 2012, he noted that "[i]n general, she has done fairly well. Cannot explain the flare of pain in her thighs." Id. at 1033. A representative of Sedgwick spoke with a member of Dr. Condit's staff and reported that he or she was informed that Dr. Condit "does not do any Functional Capacity exams and there is no other information in regards to her functional status and limitations" other than that reported in the Attending Physician Statement. Id. at 1704.
In July 2012, Sedgwick advised Kennedy that it would be referring her to a physician of its choice for a medical examination. By that time, Kennedy was subject to a new definition of "disability" in the amended Plan because she had received benefits for more than 24 months. The operative question was now whether she was unable to "engage, for remuneration or profit, in any occupation consistent with [her] education, training, and experience." Id. at 1727.
Sedgwick referred Kennedy to Dr. Robert Schriber, a rheumatologist in Dayton, Ohio.
In a letter dated November 1, 2012, Sedgwick informed Kennedy that it had concluded that she no longer satisfied the eligibility requirements under the Plan. The letter cited the definition of "disability" contained in the December 2007 Plan, before the most recent amendment: "the inability of an Employee to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience, provided that the inability results from an illness or accidental bodily injury that requires the Employee to be under the regular care of a Licensed Physician." Id. at 564. The letter explained that
Id. at 565. Kennedy's disability benefits were terminated effective December 1, 2012.
On February 2, 2013, Kennedy submitted an appeal of the termination of her disability benefits. In her letter initiating the appeal, Kennedy described her examination by Dr. Schriber as follows:
Id. at 24 (footnote omitted). Kennedy disputed Dr. Schriber's comment that the American College of Rheumatology does not consider fibromyalgia to be disabling on a long-term basis, noting that he cited to no source for that statement and citing herself to the College's website that describes fibromyalgia as a "chronic" condition. Kennedy also noted that Dr. Daniel Clauw, an expert consultant used by Lilly in conjunction with Cymbalta, a drug that it markets for the treatment of fibromyalgia, has referred to fibromyalgia as a disabling condition, both in the continuing legal education context and in testimony before the Senate. Id. at 23-24 (quoting Dr. Clauw's Senate testimony).
In support of her appeal, Kennedy also submitted two letters from Dr. Neucks, who had become Kennedy's treating rheumatologist after Dr. Condit retired. In the first, dated December 30, 2012, he opined that Kennedy remained unable to perform her previous job because it "required a great deal of focus, attention, time, and involved a fair amount of stress." He noted that the medications she took for stress "decreases her cognitive function and exacerbates her previous functional impairment in this area." Id. at 62. He further noted "[l]ong term use of these medications has not been found to be helpful in fibromyalgia and so we will be trying to limit the doses that she is taking. This will further impair her ability to deal with stress on a long-term basis." Id. In the second letter, dated February 27, 2013, he opined:
Id. at 66.
As part of the appeal process, Lilly obtained a "peer file review" from Dr. Dayton Payne, who is board certified in rheumatology and internal medicine.
Id. at 9.
On March 25, 2013, the Lilly Employee Benefits Committee ("EBC") met to consider Kennedy's appeal. The EBC used the amended definition of "disability"—"the inability of an Employee to engage, for remuneration or profit, in any occupation consistent with the Employee's education, training, and experience"— rather than the previous "commensurate with" version cited by Sedgwick in its denial letter.
Id. at 1528-29. Finally, the letter informed Kennedy that "[t]he EBC's decision regarding your request for disability benefits is final and conclusive."
Before the Court addresses the substantive issues in this case, there are two collateral issues that must be addressed. First, in addition to her motion for summary judgment, Kennedy has filed a separate motion entitled Motion to Determine the Standard of Adjudication. It is not necessary for the Court to address Kennedy's argument that Sedgwick's initial denial decision is subject to de novo review by the Court, because, as explained below, Kennedy prevails even under the more stringent arbitrary and capricious standard. The Court notes, however, that it agrees with Lilly that filing a separate motion regarding the standard of review was procedurally improper and essentially an end-run around the page limit imposed on Kennedy's brief. While the impropriety had no practical effect in this case, Kennedy's counsel is advised against filing that type of separate motion in future cases without first seeking leave of court to do so.
Second, the Court recognizes that Lilly has moved to strike certain portions of Kennedy's statement of material facts, largely on the ground that certain facts are not supported by citation to evidence of record. In the future, counsel should note these types of objections in its statement of material facts in dispute, assuming that the facts in question actually are subject to dispute. Clearly many of them in this case are not, and thus it is unclear to the Court why Lilly would bother moving to strike them. Asking the Court to strike, to give but one example, the assertion that "Ms. Kennedy subsequently was approved for disability benefits under the Extended Disability Plan"—a fact that not only is undisputed but is, in fact, contained in Lilly's own statement of facts—serves no purpose.
Kennedy filed this action pursuant to the applicable provision of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, seeking the Court's review of Lilly's decision to terminate her long-term disability benefits. The parties agree that it is appropriate for this Court to review the EBC's (and therefore Lilly's final) decision to terminate Kennedy's benefits under the abuse of discretion standard because the Plan documents expressly give Lilly the discretionary authority to determine eligibility for benefits. Kennedy argues that the initial decision by Sedgwick should be reviewed de novo; however, because Kennedy prevails even under the abuse of discretion standard, it is not necessary to address that argument.
The abuse of discretion standard of review is deferential, of course, but it "is not a euphemism for a rubber-stamp." Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 483 (7th Cir. 2009). The Seventh Circuit has explained that "arbitrary-and-capricious review turns on whether the plan administrator communicated `specific reasons' for its determination to the claimant, whether the plan administrator afforded the claimant `an opportunity for full and fair review,' and `whether there is an absence of reasoning to support the plan administrator's determination.'" Id. at 484 (quoting Leger v. Tribune Co. Long Term Disab. Benefit Plan, 557 F.3d 823, 832-33 (7th Cir. 2009)). In Majeski, the court explained that "a plan administrator's procedures are not reasonable if its determination ignores, without explanation, substantial evidence that the claimant has submitted that addresses what the plan itself has defined as the ultimate issue." Id.
Lilly argues that the EBC's decision was "overwhelmingly supported by the evidence in the record," citing to nine opinions that it characterizes as supporting the denial of benefits and only two that do not. However, two of the nine "supporting" opinions relate only to psychiatry, and another two relate only to urology, leaving only five relevant to the issue of whether Kennedy is disabled as a result of fibromyalgia.
That leaves the peer review conducted by Dr. Dikranian, the IME report from Dr. Schriber, the peer review of Dr. Payne, and the various opinions of Dr. Neucks. Dr. Dikranian's review was conducted in July 2010 and is primarily based on his belief that Kennedy's diagnosis of fibromyalgia was itself not supported by the record. The EBC did not credit this opinion of Dr. Dikranian—it specifically found that "fibromyalgia is primarily the condition causing some restrictions and limitations for work." Lilly also appears to disavow reliance on Dr. Schriber's opinion on the very next page of its brief. See Dkt. No. 41 at 25 ("Kennedy raised her concerns about Dr. Schriber's exam with the EBC and, in the end, the EBC took those concerns into consideration and relied primarily on other evidence."); see also id. at 23 ("[The EBC] did not rely on Dr. Schriber's IME as a key record, which moots Kennedy's complaints about that exam.").
On the other hand, the EBC specifically referenced the opinion of Dr. Payne as support for its denial of Kennedy's claim. Dr. Payne gave two reasons for his opinion that Kennedy was not precluded from any jobs. First he stated:
Record at 10. This is the same type of insistence on objective evidence to demonstrate the symptoms of fibromyalgia that was rejected in Hawkins v. First Union Corp., 326 F.3d 914, 919 (7th Cir. 2003); see also Holstrom v. Metropolitan Life Ins. Co., 615 F.3d 758, 769 (noting that Seventh Circuit has "rejected as arbitrary an administrator's requirement that a claimant prove her condition with objective data where no definitive objective test exists for the condition or its severity"). And while Lilly correctly cites Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007), for the proposition that a plan administrator may require objective evidence of "how much an individual's degree of pain or fatigue limits his functional capabilities," that does not appear to be the type of "missing data" Dr. Payne is referring to; rather, he refers to the absence of the type of clinical signs (like synotvitis and musculoskeletal damage) the absence of which simply does not support a finding of an absence of disabling pain in a fibromyalgia patient. See Hawkins, 326 F.3d at 919 ("Pain often and in the case of fibromyalgia cannot be detected by laboratory tests. The disease itself can be diagnosed more or less objectively . . . but the amount of pain and fatigue that a particular case produces cannot be."). If that was the type of information that Lilly required in order to continue Kennedy's benefits, it should have specifically told her that when it initially denied her claim. See 29 C.F.R. § 2560.503-1(g)(iii) (notice of adverse benefit determination must include "[a] description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary"). It did not do so; therefore, she was not given the opportunity to correct that omission on appeal, thus denying her of a full and fair opportunity for review.
The second reason given by Dr. Payne in support of his conclusion was:
Record at 10. This reason also is problematic. As best the Court can discern, what Dr. Payne means is that working likely will not make Kennedy's fibromyalgia worse and remaining off work will likely not make her fibromyalgia better. But that begs the question of whether the current state of Kennedy's fibromyalgia and the symptoms she experiences are incompatible with work. It also suggests that Dr. Payne, like Dr. Schriber, believes that fibromyalgia is never disabling.
That leaves the various opinions given by Dr. Neucks. As the EBC noted in its denial letter, Dr. Neucks's letter of December 30, 2012, opined that Kennedy could not perform her previous job but was silent as to whether she could perform other jobs. Id. at 62. In his February 27, 2013, letter, he opined that she could not "work a regular work schedule." Id. at 66. He further explained in that letter that increasing the dosage of her medication caused cognitive impairment, while decreasing the dosage caused "her to be somewhat uncomfortable." Finally, he noted that "at the last visit [February 2013] that her function level had declined slightly and that her anxiety was significantly worse." Id.
Dr. Neucks's letters do not, by themselves, provide support for the EBC's decision to terminate Kennedy's benefits, as the inability to work a regular schedule generally is not compatible with engaging in an occupation. Cf. Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012) ("[W]hen a patient like Farrell is only unpredictably able to function in a normal work environment, the resulting intermittent attendance normally precludes the possibility of holding down a steady job.") (citing EEOC v. Yellow Freight Sys., 253 F.3d 943, 949-52 (7th Cir. 2001) (en banc)).
Having examined the evidence cited by Lilly as supporting the EBC's decision and finding that none of it actually provides the necessary support, the Court is left to echo the conclusion drawn by the Seventh Circuit in Hawkins, 326 F.3d at 919: "[t]he record contains nothing more than scraps to offset the evidence presented by [Kennedy] and by [Dr. Condit]" and, accordingly, the EBC's decision fails to satisfy even the deferential arbitrary and capricious standard.
That leaves the issue of the proper remedy.
Gessling v. Group Long Term Disab. Plan for Employees of Sprint/United Management Co., 693 F.Supp.2d 856, 873 (S.D. Ind. 2010) (Hamilton, Circuit Judge, sitting by designation). Here remanding "for further findings or explanations" would be a useless exercise because the Court has reviewed the evidence of record and determine that it does not offer any affirmative support for terminating Kennedy's benefits. As noted above, in this case the lack of objective evidence of Kennedy's functional limitations as a result of her subjective symptoms could have been fatal to Kennedy's claim for benefits had Kennedy been informed of the need to provide such evidence and been unable (or simply failed) to do so. But she was not informed of the need to do so, and it would be impossible for her to obtain such evidence now—she cannot go back in time and undergo testing to demonstrate what her functional capacity was as of December 1, 2012. Accordingly, the Court finds that the appropriate remedy in this case is the reinstatement of benefits.
For the reasons set forth above, the Plaintiff's motion for summary judgment is
SO ORDERED.
