Opinion
CASE NO. 1:21-CV-24224-PCH
09-16-2022
Bryce DUNHAM-ZEMBERI, Plaintiff, v. LINCOLN LIFE ASSURANCE COMPANY OF BOSTON, Defendant.
Gregory Michael Dell, Dell & Schaefer, Hollywood, FL, Jerel Charles Dawson, Alexander Arthur Palamara, Attorneys Dell & Schaefer Chartered, Weston, FL, for Plaintiff. Lee Warren Marcus, Marcus & Myers PA, Orlando, FL, for Defendant.
Gregory Michael Dell, Dell & Schaefer, Hollywood, FL, Jerel Charles Dawson, Alexander Arthur Palamara, Attorneys Dell & Schaefer Chartered, Weston, FL, for Plaintiff. Lee Warren Marcus, Marcus & Myers PA, Orlando, FL, for Defendant. ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PAUL C. HUCK, SENIOR UNITED STATES DISTRICT JUDGE
This is an ERISA long-term benefits denial case. It centers on Plaintiff Bryce Dunham-Zemberi's ("Dunham") claim, under Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), that Defendant Lincoln Life Assurance Company of Boston ("Lincoln") as the insurer and claim administrator for Dunham's employer's employee welfare benefit plan ("Plan") erred in denying Dunham long-term disability benefits under the Plan. Dunham argues that the requisite objective medical evidence, principally a reported review of Dunham's medical files by Dr. Cheryl Daves; a residual functional capacity evaluation conducted by physical therapist Sarah Marchant; and reports from Dunham's primary care doctor, Dr. Matthew Bryan, objectively demonstrate, by a preponderance of the medical evidence, that Dunham is disabled under the terms of the Plan. Lincoln argues that these three sources do not objectively prove disability and, moreover, the totality of the medical evidence demonstrates that Dunham is not disabled under the terms of the Plan.
The matter comes before the Court as a motion for summary judgment and a cross-motion for summary judgment. Dunham moved for summary judgment on June 13, 2022, ECF No. 12, and Lincoln cross-moved for summary judgment on July 5, 2022, ECF No. 18. After the matter was fully briefed, the Court heard oral argument on August 31, 2022.
In an ERISA matter, a motion for summary judgment "is merely the conduit to bring the legal question before the district court, and the usual tests of summary judgment, such as whether a genuine dispute of material fact exist, do not apply." Crume v. Metropolitan Life Ins. Co., 417 F. Supp. 2d 1258, 1272 (M.D. Fla. 2006).
FACTUAL AND PROCEDURAL HISTORY
In 2015, Dunham began working at Mattress Firm, where he participated in its group long-term disability insurance plan that was insured and administered by Lincoln. On November 25, 2019, Dunham suffered a back injury while skiing and ceased work. A CT scan revealed a three-column fracture in his mid-back. On November 26, 2019, Dunham underwent a fusion of vertebrae T4 through T9. Dr. Nicholas Spina, an orthopaedist, performed the surgery and follow-up care. On May 19, 2020, Lincoln approved Dunham's request for long-term disability benefits, and on May 22, 2020, emailed Mattress Firm informing them that Lincoln had approved Dunham's claim through May 25, 2022. Dunham's disability claim is essentially based on his contention that he cannot lift fifty pounds or sit for at least eight hours, as he contends his job requires.
Dunham continued to see Dr. Spina for follow-up appointments on December 11, 2019, January 13, 2020, March 2, 2020, March 30, 2020, May 4, 2020, July 6, 2020, and July 27, 2020. On December 11, 2019, March 2, 2020, and July 6, 2020 Dunham underwent thoracic spine x-rays, which evidenced no hardware complication and no postoperative complication. On January 13, 2020, Dunham underwent an x-ray of his entire spine that revealed no hardware complication. A CT scan on July 27, 2020 showed no loose hardware and no medial or inferior breaches leading to nerve impingement. Despite the x-rays and CT scan, Dunham continued to complain of significant pain in the eight months after his operation. On July 27, 2020, Dr. Spina noted that he was "puzzled by the degree of back discomfort" that Dunham was experiencing. As a result, he recommended that Dunham begin working with a pain psychologist to manage his symptoms. Dunham visited pain psychologist Dr. John VanderVeen on August 12, 2020. Dr. VanderVeen diagnosed chronic pain syndrome and adjustment disorder with mixed anxiety and depressed mood. Dr. VanderVeen recommended that Dunham work on managing his pain through values-based and grounding exercises, practice cognitive restructuring exercises, and practice increasing activity tolerance.
During this time, Dunham also underwent multiple sessions with Dr. Daniel Odell, a pain specialist. Dr. Odell prescribed medications, including Tylenol, gabapentin, and duloxetine, to manage pain; recommended topical lidocaine and lidocaine infusions; and also recommended physical and behavioral therapy.
Dunham also underwent extensive physical therapy in the months following his surgery. Dunham began therapy with physical therapist Whitney Anne Meier on March 3, 2020. Between March 2020 and March 2021, he saw several other physical therapists, including Keith Roper, Joshua Turner, and Maureen McGrath at the University of Utah Medical System. The physical therapy notes record Dunham's subjective complaints of pain and functioning limitations and list prescribed exercises for Dunham to perform as part of a home exercise program, including split stance shoulder row with resistance, standing shoulder shrug and retraction with resistance, and supine shoulder overhead flexion with medicine ball. The physical therapy notes also list goals for Dunham to achieve and document his attainment or lack thereof of those goals. Meier reported as early as on June 16, 2020 that Dunham could sit and stand for over four hours without back pain. During the time he saw Roper, Meier, McGrath, and Turner, none of the physical therapists opined to Lincoln that Dunham was disabled from working.
In September 2020, Lincoln requested that Dr. Cheryl Daves, a specialist in physical medicine and rehabilitation and in pain management, review Dunham's medical records to determine Dunham's level of impairment and the projected duration of that impairment. Dr. Daves reviewed Dunham's records that dated from between December 2019 and September 2020. On September 23, 2020, Dunham reported that he could sit, stand, and walk for up to four hours per day and could occasionally lift, carry, push, or pull up to ten pounds bilaterally. Dr. Daves opined that the "expected duration" of these limitations was three months from Dunham's most recent office visit on September 4, 2020, that is, until December 4, 2020.
Dr. Matthew Bryan, an internist, had seen Dunham previously for regular checkups as his primary care giver. On December 31, 2020, thirteen months after his surgery, Dunham visited Dr. Bryan's office because, as the office note reflects, Dunham "needs long term disability paperwork filled out." In the months since Dunham's surgery, Dr. Bryan had not been directly involved in Dunham's post-operative treatment. On January 6, 2021, Dr. Bryan submitted to Lincoln his first Attending Physician's Statement ("January 6, 2021 Statement") in which he noted, among other observations, that Dunham's symptoms were "[i]ntense pain[ ], [b]owel dysfunction[, and] [limited mobility" and that he was restricted regarding lifting, standing, walking, sitting, balancing, climbing, bending, and reaching. Regarding his opinion about when Dunham could be "able to return to work Full-Time," Dr. Bryan noted a range of "8/1/2021 to 11/01/2021".
On January 14, 2021, approximately four months after Dr. Dave's report and eight days after receiving Dr. Bryan's January 6, 2021 Statement, Lincoln requested that Dr. David Ben-Aviv, a physical medicine and rehabilitation specialist, conduct a review of Dunham's medical files through January 24, 2021. On January 24, 2021, Dr. Ben-Aviv noted, in part, "Despite no medical or surgical complication post-op, the pain issues have been persistent and have subjectively impacted functional improvement. However, there is no objective evidence to support ongoing restrictions." Dr. Ben-Aviv concluded:
In summary, it appears from the available medical record that Mr. Dunham Zemberi has had a subjectively slow recovery from his ski accident and subsequent surgery. However, the objective evidence records a good recovery from surgery. The imaging workup and provider documentation do not report any complications and recent examinations show no neurologic deficit. The records indicate that while possibly not participating in all his baseline activities, Mr. Dunham Zemberi has returned to some strenuous activities including hiking.
Typically, recovery from a thoracic fusion would be expected to be over 3-4 months with a return normal functional at near or at baseline function by no more than 6 months post-op. Nothing in the available medical record suggests that the post-op healing has not progressed as expected or would necessitate any specific restrictions at this point. While the pain itself appears to need ongoing treatment, Mr. Dunham Zemberi appears to have the strength and endurance to support unrestricted work activities.
On February 3, 2021, Lincoln informed Dunham that he no longer met the definition of disability under the Plan and terminated Dunham's disability benefits as of January 29, 2021.
In response to that termination, Dunham submitted a letter from Dr. Bryan dated February 19, 2021. In his letter, Dr. Bryan opined that Dunham could:
[T]echnically lift, bend at the waist, carry anything more than 5-lbs., twist trunk, sit for long periods, stand for long periods if he were forced to, if he does so he experiences severe neuropathic pain to an intolerable level. With his slow improvement in mobility and function, his pain has also been slowly improving. He has been able to be more active esp while walking/hiking, which is awesome. But he is nowhere near the physical[ ] capabilities even approaching his baseline.
Dr. Bryan did not support his opinion with reference to any physical examination or test which either he or any other health care provider performed, nor by any imaging result.
Dunham underwent and submitted to Lincoln a Residual Functional Capacity Evaluation ("RFCE") done by physical therapist Sarah Marchant on March 3, 2021. The evaluation took two and a half hours, during which Marchant evaluated Dunham's perception of his pain, his functional tolerances, dexterity, and lifting abilities. Particularly relevant here, Marchant observed that Dunham sat for 41 minutes and stood for 107 total minutes during the evaluation and concluded that Dunham could lift a maximum of 10 pounds from the floor to waist height and a maximum of 12 ½ pounds from waist to overhead.
As discussed in greater detail below, Marchant performed a residual functional capacity evaluation rather than the more comprehensive functional capacity evaluation. According to the website of Marchant's employer, Functional Assessment Rehab & Physical Therapy, residual functional capacity evaluations "are [ ] abbreviated Functional Capacity Evaluations used to assist in the determination of disability" that usually last about two hours. The website states that functional capacity evaluations, on the other hand, assess individuals' "ability to participate and to tolerate various physical tasks" and are usually completed over two days. Functional Assessment Rehab & Physical Therapy Home Page, https://functionagain.com/residual-functional-capacity-evaluations/ (last visited Sept. 13, 2022).
On May 17, 2021, Dr. Bryan submitted another Attending Physician's Statement ("May 17, 2021 Statement"), again at the request of Dunham's counsel. In this statement, Dr. Bryan reported that Dunham suffered from localized back pain, weakness in muscles, muscle stiffness, cramps, changes in coordination, joint pain, joint stiffness, and difficulty with balance. Dr. Bryan reported that his opinion was supported by objective signs of pain in the form of an MRI abnormality, muscle spasms, spinal deformity, and nerve/muscle findings. Dr. Bryan also stated that Dunham could sit, stand, walk, reach overhead, reach at desk level, and reach below the waist occasionally, for a maximum of 0 to 2.5 hours, or 1/3 of the workday. Dr. Bryan also relied on Marchant's RFCE and incorporated it into his May 17, 2021 Attending Physician's Statement "for more detail." As "objective data" upon which he relied to support his statement, Dr. Bryan merely noted "RFCE[,] specialist notes - ortho, PT, & exams & history taken from Bryce." However, Dr. Bryan does not provide any details explaining how he determined these "objective data" nor does he specify how and why these items support his statement.
On July 14, 2021, Dunham appealed Lincoln's termination decision. Thereafter, on August 9, 2021, Lincoln requested that Dr. Fargo Khoury, another physical medicine and rehabilitation specialist, conduct an updated review of Dunham's medical records. His review encompassed medical records from January 2021 through July 2021, including Marchant's RFCE report and Dr. Bryan's May 17, 2021 Statement. Dr. Khoury concluded that he agreed with Dr. Ben-Aviv's earlier assessment, and he observed "no specific restrictions from a Physical Medicine & Rehabilitation perspective . . . ."
On August 13, 2021, apparently in response to Dr. Khoury's review, Dr. Bryan submitted his last report, in which he stated that Dunham could not "carry, lift, push, pull more than 151b." and could not "sit in a chair for more than a few minutes at a time due to pain." The record does not suggest that Dr. Bryan performed any relevant examination of or test on Dunham at this or any other time.
On September 23, 2021, in response to Dr. Bryan's last report, Dr. Khoury submitted an addendum to his August 9, 2020 review. Dr. Khoury reported that the new information from Dr. Bryan did not change his assessment of Dunham's condition. Thereafter, on October 5, 2021, Lincoln notified Dunham that it had decided to deny his appeal and uphold its termination of benefits beyond January 29, 2021. On December 1, 2021, Dunham filed this suit challenging Lincoln's denial of his appeal.
DISCUSSION
I. Applicable Standards
Dunham brings his claim under Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(A)(1)(b). In an ERISA denial of benefits case, "the district court sits more as an appellate tribunal than as a trial court." Curran v. Kemper Nat'l Serv., Inc., 2005 WL 894840, at *7 (11th Cir. Mar. 16, 2005) (citing Leahy v. Raytheon Co., 315 F.3d 11, 17-18 (1st Cir. 2002)). The court evaluates the plan administrator's decision under a de novo standard of review unless the plan vests the administrator with discretion, in which case the court applies an arbitrary and capricious standard of review. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011). The parties agree that in the present case, only the de novo review step applies because the Plan is governed by Texas law, which prohibits discretionary review clauses in insurance contracts. 28 Tex. Code §§ 3.1201-3.1203. Under de novo review, the court puts itself in the administrator's place "to make anew the same judgment" that the Plan administrator had to make. Harris v. Lincoln Nat'l Life Ins. Co., 42 F.4th 1292, 1296 (11th Cir. 2022) (citing Doe v. United States, 821 F.2d 694, 698 (D.C. Cir. 1987)). In an ERISA proceeding, the plaintiff bears the burden of showing, by a preponderance of the evidence, disability under the terms of the benefits plan. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998); Russell v. Blue Cross & Blue Shield Ass'n, No. 3:11-CV-975-J-37JBT, 2012 WL 13136864, at *7 (M.D. Fla. Dec. 17, 2012), report and recommendation adopted, No. 3:11-CV-975-J-37JBT, 2013 WL 12385343 (M.D. Fla. Feb. 12, 2013). The burden lies with the plaintiff "whether or not the administrator denies a claim initially or decides to discontinue benefits after initially approving them." Richards v. Hartford Life & Accident Ins. Co., 356 F. Supp. 2d 1278, 1284 (S.D. Fla. 2004), aff'd sub nom. Richards v. Hartford Life & Accident Ins. Co., 153 F. App'x 694 (11th Cir. 2005) (citing Hufford v. Harris Corp., 322 F. Supp. 2d 1345, 1360 (M.D. Fla. 2004)).
Thus, the usual six-step test that courts use to review a plan administrator's benefits decision does not apply here. See Blankenship, 644 F.3d at 1355.
Courts interpreting ERISA plans "employ normal principles of contract and insurance law, guided by federal common law and the congressional purposes underlying ERISA." Williams v. Bd. of Trustees of Int'l Longshoremen's Ass'n, 388 F. Supp. 2d 1353, 1364 (S.D. Fla. 2005). Consequently, courts interpret the benefit plan's contractual language "according to its plain, ordinary, and generally accepted meaning . . . ." URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 764 (Tex. 2018) (citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996)).
The Plan in question requires "objective evidence" of disability. A claimant must provide "proof" in the form of "evidence in support of a claim for benefits [including] 1. a claim form completed and signed (or otherwise formally submitted) by the Covered Person claiming benefits; 2. an attending Physician's statement completed and signed (or otherwise formally submitted) by the Covered Person's attending Physician; and 3. the provision by the attending Physician of standard diagnosis, chart notes, lab findings, test results, x-rays and/or other forms of objective medical evidence in support of a claim for benefits." (emphasis added). Consequently, the Court in its de novo review evaluates whether Dunham met his burden of showing, by a preponderance of the evidence, disability under the Plan through objective medical evidence.
1. Standard of Disability
The Plan states that an individual is eligible for long-term disability when that individual is "unable to perform the Material and Substantial Duties of his Own Occupation" in the way it is "normally performed in the national economy." The Parties disagree as to what constitute Dunham's material and substantial duties. Dunham asserts that those duties include his particular job duties, as described by his employer, which consist of sitting for up to eight hours and lifting up to fifty pounds. Lincoln asserts that those duties are determined only by the way Dunham's occupation is normally performed in the national economy and consist of sitting occasionally and lifting up to fifty pounds. The Court adopts Lincoln's view.
It is noteworthy that while Dunham contends that the "national economy" standard is not applicable here, the first question in the Attending Physician's Statement questionnaire form, which appears to have been drafted by Dunham's counsel, and which Dunham's counsel asked Dr. Bryan to complete, asks if Dunham has any medical conditions that would prevent him from performing the material and substantial duties of "his own occupation, as defined in the policy's definition." The Attending Physician's Statement form thereafter quotes the policy's language which states that "own occupation" means the way the person's occupation "is normally performed in the national economy."
The plain terms of the Plan state that Lincoln will evaluate a claimant's occupational responsibilities based on how his occupation is performed in the national economy. See URI, Inc., 543 S.W.3d at 764. These terms control here. Dunham cites two cases for the proposition that even under a "national economy" standard, the Court should consider Dunham's particular job responsibilities. These cases do not support Dunham. Dunham is correct that plan administrators must consider a claimant's particular job responsibilities in order to characterize the nature of claimant's occupation in the national economy. However, Dunham is incorrect in claiming that a plan administrator must consider a claimant's particular responsibilities to determine if the claimant can perform the material and substantial duties of his occupation, as performed in the national economy.
Dunham and Lincoln both cite Branca v. Liberty Life Assurance Co. of Boston, 2014 WL 1340604 (E.D. Pa. Apr. 3, 2014), and Van Arsdel v. Liberty Life Assurance Co. of Boston, 267 F. Supp. 3d 538 (E.D. Pa. 2017), in support of their respective positions. Both cases demonstrate that Lincoln's interpretation is correct. In Branca, the court determined that Liberty Life Assurance Company had to consider Branca's job responsibilities to determine the correct exertional level of Branca's occupation. Branca, 2014 WL 1340604, at *15. In its occupational analysis, Liberty Life Assurance had ignored Branca's job responsibilities and characterized her job as "sedentary" rather than "light." Id. The "sedentary" classification "better suited its conclusion" that Branca was not disabled under the terms of his plan. Id. Likewise, in Van Arsdel, Liberty Life's vocational experts had ignored Van Arsdel's job responsibilities and mischaracterized Van Arsdel's occupation as "sedentary" rather than "light" so as to support its desired conclusion that Van Arsdel was not disabled. Van Arsdel, 267 F. Supp. 3d at *576-78.
Unlike in Branca and Van Arsdel, nothing in the record suggests that Lincoln ignored Dunham's job responsibilities and consequently mischaracterized the exertional level of Dunham's occupation. On the contrary, Lincoln's vocational case manager, Angelle Nash, evaluated Dunham's actual job responsibilities and used that information to conclude that Dunham's occupation matched that of a Store Manager performed at a medium level of exertion in the national economy. Nash gathered information about Dunham's job responsibilities from Mattress Firm and compared those responsibilities with how a store manager usually operates in the national economy, using the Dictionary of Occupational Titles and the Occupational Information Network. Nash concluded that Dunham's occupation in the national economy involves "lifting up to 50 pounds, sitting occasionally and standing, walking frequently."
The Dictionary of Occupational Titles is a publication produced by the United States Department of Labor, and the Occupational Information Network is sponsored by the United States Department of Labor. Both are resources which help employers, government officials, and workforce development professionals define various occupations. Insurers commonly use these resources to determine an occupation as it is normally performed in the national economy.
Dunham does not dispute Nash's characterization of his occupation. Dunham instead complains that Lincoln incorrectly credits Nash's determination that a sales manager performing at a medium level of exertion typically does not need to sit for up to eight hours per day. Dunham essentially takes issue with the "national level" language of the Plan. Nonetheless, the language of the contract controls. The occupation as performed at the national level may not include all of Dunham's job responsibilities, but Lincoln did not err in evaluating whether Dunham can perform the responsibilities of his occupation as it is normally performed at the national level. Therefore, Dunham is disabled under the terms of the policy if he is unable to sit occasionally and lift up to fifty pounds.
II. Medical Evidence
A chronology reflecting the history of relevant events in Dunham's medical treatment and evaluations is at the end of this Order.
A. Dunham's Proffered Medical Evidence
As indicated above, Dunham primarily relies on three sources of medical evidence. Each is discussed in turn, followed by a discussion of the other relevant medical evidence.
1. Dr. Bryan
The Court finds that Dr. Bryan, an internist with no reported expertise in orthopaedics, physical medicine and rehabilitation, or pain management, does not provide credible, objective evidence of disability. Although Dr. Bryan is obviously a strong advocate for his patient, Dr. Bryan's reports of Dunham's claimed physical restrictions and limitations reflect little detail and are not supported by testing, physical examinations, imaging, or any credible, objective evidence relevant to his opinions. His reports are conclusory, at best, and for the most part merely record his patient's subjective complaints. More important, Dr. Bryan's reports are inconsistent with the many relevant conclusions of other medical experts who provided more persuasive opinions based on greater factual details, objective testing, imaging, and examinations of Dunham as he recovered from his accident and surgery.
The following are some examples of how Dr. Bryan's opinions are inconsistent with those of these other medical experts, many of whom have medical specialties that are specifically applicable to determining whether Dunham has a relevant physical disability.
The most obvious and relevant inconsistency relates to sitting. In his last report dated August 13, 2021, twenty-one months after Dunham's surgery, Dr. Bryan states that Dunham "cannot sit in a chair for more than a few minutes at a time due to pain." This is dramatically inconsistent with the reports of the other experts who consistently report Dunham's improving ability to sit for extended periods of time without pain, up to a minimum of four hours. For example, as early as June 16, 2020, the physical therapists working directly with Dunham over an extended period of time reported that Dunham was able to sit and stand for more than four hours. And no physical therapist ever reported that Dunham was unable to sit for more than a few minutes without pain. On July 23, 2020, Roper reported that Dunham "sat in a slouched and kyphotic posture in chair throughout 50 min visit without visible pain behavior." Even Marchant's March 3, 2021 RFCE, upon which Dunham places great emphasis, reports that Dunham sat for "15 continuous minutes during intake interview . . . [and] 41 total minutes throughout this assessment," or approximately one-third of Marchant's evaluation. The RFCE does not purport that this is Dunham's maximum, but does reflect a minimum sitting time. While the RFCE reports that Dunham "did not maintain sitting for long durations" and was "particular about chairs when sitting," it does not report that Dunham experienced pain sitting during the fifteen-minute intake interview nor the balance of the forty-one total minutes.
Another noteworthy inconsistency between Dr. Bryan's August 13, 2021 report and Marchant's RFCE relates to standing. In his August 13 report, and throughout his earlier reports, for that matter, Dr. Bryan reports that Dunham's ability to stand was severely limited because of pain. In contrast, the RFCE reports, with regard to Dunham's ability to stand, that he stood for "61 continuous minutes, both static and dynamic . . . 107 total minutes throughout this assessment . . . [with] [n]o reports of increased pain or discomfort. No observed intolerance. He had equal weight bearing and smooth weight shifting." Dr. Bryan's report is also inconsistent with Dunham's physical therapists' numerous observations about his ability to sit and stand. As previously mentioned, as early as June 16, 2020, Meier reported that Dunham was able to sit and stand for more than four hours without back pain. And Dr. Daves's report stated that Dunham could sit, stand, and walk for up to four hours per day.
Dr. Bryan also makes claims about Dunham's walking ability that are inconsistent with other medical records. In his January 6, 2021 Statement, Dr. Bryan reported that Dunham could only "occasionally" walk. But Dr. Ben-Aviv noted on January 24, 2021 that Dunham's medical record showed that he could hike as of November 2020. In addition, on April 10, 2020, Meier reported that Dunham said he went for a "4-5 mile hike," after which he [w]as sore but glad he was able to do it" and was able to walk 30-40 minutes without back pain.
Furthermore, Dr. Bryan's May 17, 2021 Statement reports that Dunham has significantly different medical ailments than do Dunham's other medical records. In the May 17, 2021 Statement, Dr. Bryan, nearly eighteen months post-operation, reported, for the very first time, that Dunham suffered from muscle stiffness, cramps, changes in coordination, joint stiffness, and difficulty with balance. These ailments are not even mentioned, much less substantiated, in Dunham's medical record. In fact, several medical records expressly contradict these findings. For example, although Dr. Bryan reported that Dunham struggles with balance, Dr. Spina's notes from May 4, 2020, July 6, 2020, and July 27, 2020 state that "the patient has not had issues with balance . . . ." Marchant's RFCE report, upon which Dr. Bryan relied in his May 17, 2021 Statement, reports that Dunham "demonstrated fair to good balance with single leg stance and tandem walking." Bryan reported that Dunham experienced changes to coordination, but on September 18, 2020, Dr. Odell reported that Dunham was "[n]egative for gait problem . . . ." On November 11, 2020, January 6, 2021, February 5, 2021, February 26, 2021, and March 19, 2021, Roper's notes reflect that "Mr. Dunham-Zemberi denies any gait disturbance . . . ." There is no objective evidence in Dunham's medical record for the ailments Dr. Bryan first mentioned in the May 17, 2021 Statement.
Under the May 17, 2021 Statement's heading "Please indicate the Objective signs of pain," Dr. Bryan lists, again for the first time, muscles spasm, MRI abnormality, spinal deformity, and nerve/muscle findings. However, he offers no support for those objective signs, such as the results of relevant imaging, objective tests, or examinations, whether conducted by himself or any other medical expert. The Court has searched the record for such support and has found none. Tellingly, at oral argument, Dunham's counsel were unable to identify any prior medical record from any of the treating doctors or physical therapists, or even from Dr. Bryan, substantiating these objective signs. Even though Dr. Bryan represents that an MRI abnormality reflects objective evidence of Dunham's pain, there is no evidence in the record that Dunham underwent an MRI after his surgery, much less that Dr. Bryan reviewed an MRI report. Moreover, Dunham's post-operative x-ray images show no post-operative complication. Nor is there any objective evidence in the record of a spinal deformity or of findings related to Dunham's nerves or muscles. In fact, Dr. Spina reported no complications from the surgery and stated that, based in part on the imaging scans, he was "puzzled" and "perplexed" at Dunham's reported level of pain.
Dr. Bryan's May 17, 2021 Statement also appears to overstate Dunham's physical limitations. His contention that Dunham can stand, walk, and reach at desk level only occasionally, between 0 to 2.5 hours per day or 1/3 of the day, contradicts other medical evidence and Marchant's RFCE. As discussed above, physical therapy notes from June 16, 2020, July 6, 2020, July 15, 2020, July 21, 2020, July 23, 2020, August 11, 2020, August 18, 2020, and August 26, 2020 report that Dunham was able to sit and stand for more than four hours without back pain. Dr. Daves also opined that Dunham could sit for four hours per day and stand for four hours per day.
Dunham argues that these therapy notes may suggest that Dunham can engage in combined sitting and standing for more than four hours and do not suggest that he can sit for four hours and stand for four hours. The Court recognizes the ambiguity in the physical therapy notes, but even giving Dunham the benefit of the doubt, the Court cannot find medical evidence in the record that shows that Dunham is limited to sitting, standing, and walking for less than two and a half hours per day, as Dr. Bryan suggests. At the very least, Dr. Bryan appears to have made his determinations without firm medical evidence.
There is one final inconsistency in Dr. Bryan's January 6, 2021 Statement. Dr. Bryan reported that Dunham suffered from bowel dysfunction even though Dr. Spina's office reported on May 5, 2020, July 6, 2020, and July 27, 2020 that Dunham did not have bowel dysfunction. Roper also reported on November 20, 2020, January 6, 2021, February 5, 2021, February 26, 2021, and March 19, 2021 that Dunham did not have bowel dysfunction. While this medical ailment is not relevant to Dunham's disability claim, the clear inconsistency between Dr. Bryan's report and the medical records that speak to this issue suggests that Dr. Bryan did not complete the January 6, 2021 with precision and objectivity.
In sum, Dr. Bryan appears to be a strong advocate and sincere medical provider, but his lack of relevant medical expertise, the lack of objective findings, lack of supporting explanation and detail, numerous inconsistencies, contradictions, and exaggerations in the reports he submitted, along with the almost complete reliance on Dunham's subjective complaints, reveal a lack of professional objectivity. The Court therefore affords Dr. Bryan's opinions little evidentiary weight regarding Dunham's burden to present objective evidence of disability.
2. Dr. Cheryl Daves
Dunham also relies on Dr. Cheryl Daves's September 23, 2020 report to bolster his contention that objective evidence supports his disability claim. As Dunham correctly points out, Lincoln engaged Dr. Daves to review Dunham's entire clinical record through September 4, 2020, including the applicable standard of care and evidence-based medicine, to determine if there is sufficient support of a "level of impairment [which] translates into restrictions and limitations from 9/04/2020 to ongoing, and comment on the expected duration." Dr. Daves opined that Dunham had several restrictions or limitations, most relevant here, "Sitting: up to 4 hours per day" and "Lifting/carrying/pushing/pulling: occasionally up to 10 lbs. bilaterally . . . ." However, Dr. Daves further opined that "the level of impairment translates into restrictions and limitations . . . for the expected duration of 3 months following the most recent office visit note dated 9/04/2020 (i.e. 12/04/2020)." Dr. Daves's specified period of Dunham's restrictions and limitations ended fifty-five days before Lincoln's termination of Dunham's long-term benefits as of January 29, 2021. Thus, Dr. Daves's report, while substantiating long-term disability for an additional finite, three-month period, during which Lincoln provided benefits, does not support Dunham's claim for benefits beyond those provided by Lincoln.
3. The Residual Function Capacity Evaluation
Finally, in support of his claim, Dunham offers the March 3, 2021 Residual Functional Capacity Evaluation ("RFCE") by Marchant. To begin, traditional functional capacity evaluations ("FCEs") by qualified evaluators are generally regarded as reliable evidence of functional restrictions and limitations. See, e.g., Fick v. Metro. Life Ins. Co., 347 F. Supp. 2d 1271, 1280 (S.D. Fla. 2004) ("A functional capacity evaluation is the best means of assessing an individual's functional level."); Lake v. Hartford Life & Accident Ins. Co., 320 F. Supp. 2d 1240, 1249 (M.D. Fla.), aff'd sub nom. Lake v. Hartford Life & Accident, 126 F. App'x 463 (11th Cir. 2004) (same); MacDonald v. Anthem Life Ins. Co., No. 8:12-CV-2473-T-17TBM, 2014 WL 4809534, at *15 (M.D. Fla. Sept. 26, 2014) (same); Turnes-Lopez v. Metro. Life Ins. Co., No. 06-22479-CIV, 2007 WL 9706015, at *2 (S.D. Fla. Aug. 21, 2007) (same).
However, it is crucial to the Court's analysis to note that Marchant's RFCE is not an FCE, as that process is commonly used and understood. This distinction is acknowledged by Marchant's own employer, Functional Assessment Rehab and Physical Therapy ("Functional Assessment Rehab"). On its website, functionagain.org, under the heading "Our Services and Programs," Functional Assessment Rehab separately describes its FCE and its RFCE. In distinguishing its FCE from its RFCE, Functional Assessment Rehab represents that the FCE "test is objective with measurements of weights, distances, times, and standardization of scores. Most Functional Capacity Evaluations are done over 2 days or about 2-3 hours each day . . . . All evaluations include physical abilities and tolerances as well as validity, credibility, and reliability." (emphasis added). In contrast, Functional Assessment Rehab represents that its RFCEs are "abbreviated Functional Capacity Evaluations used to assist in the determination of disability . . . . These valuations are about 2 hours in duration . . . ." Notably, Functional Assessment Rehab does not represent that the "test is objective," nor that its RFCEs include "validity, credibility, and reliability" testing. Those omissions are of critical importance here, as in other cases where the evaluation is credited, because the value of an FCE relies in large measure on objective testing and the claimant giving full, truthful effort in the testing. Accordingly, courts which have accepted FCEs as objective, reliable evidence of disability have done so when the evaluations are supported by objectivity and meaningful validity performance testing, see, e.g., Ness v. Aetna Life Ins. Co., 257 F. Supp. 3d 1280, 1290 (M.D. Fla. 2017) (giving the FCE weight because it included "49 validity criteria"); Batchelor v. Life Ins. Co. of N. Am., 504 F. Supp. 3d 607, 618 (S.D. Tex. 2020) (crediting two FCEs because they were supported by substantial validity testing, including heart rate testing, as well as independent objective evidence, including muscle spasms, degenerative disc disease, elevated creatine kinase, and torn meniscus); Gorbacheva v. Abbott Lab'ys Extended Disability Plan, 309 F. Supp. 3d 756, 773 (N.D. Cal. 2018), aff'd, 794 F. App'x 590 (9th Cir. 2019) (observing that without appropriate validity testing, the claimant can influence the FCE results); Stiltz v. Metro. Life Ins. Co., 244 F. App'x 260, 264-65 (11th Cir. 2007) ("[T]he objective evidence in the functional capacity evaluation was the more reliable evidence of Stiltz's ability to work."); Lesser v. Reliance Standard Life Ins. Co., 385 F. Supp. 3d 1356, 1371 (N.D. Ga. 2019) ("The test administrator, Kirk Bowers, indicated that the Plaintiff exhibited 'full and consistent effort' during the evaluation based on subjective and objective criteria, including heart rate monitoring."); Madison v. Greater Georgia Life Ins. Co., 225 F. Supp. 3d 1381, 1395 (N.D. Ga. 2016) ("Madison's evaluation contained safeguards against [ ] shenanigans. His heart rate—something he couldn't 'fake'—during the administered tasks reflected 'near-maximal to maximal effort during testing.' "); Collier v. Lincoln Life Assurance Co. of Bos., No. SACV20839JVSKESX, 2021 WL 1851275, at *16 (C.D. Cal. Apr. 16, 2021) (discounting the results of an FCE because the examiner's methods used to assess the plaintiff's functional capacity allowed for considerable subjective impact); Hocheiser v. Liberty Mut. Ins. Co., No. CV 17-06096 (FLW), 2021 WL 672660, at *10 (D.N.J. Feb. 22, 2021) (observing that in the absence of validity testing, the findings of the FCE are limited to the claimant's subjective complaints and therefore do not reliably measure maximal capacity).
And the courts are not alone in their view that objective "validity" testing is not only appropriate but a standard requirement for a reliable FCE. See Steve Allison, et al., Current Concepts in Functional Capacity Evaluations: A Best Practices Guidelines, Academy of Orthopaedic Physical Therapy (2018), https://tinyurl.com/2s3sc75j ("the Best Practices Guidelines"). It is recommended that the FCEs allow for up to 8 hours, conducted over a one-to-two-day period, id. at 8, and should include "[o]bjective diagnostic tests," id., in the form of "[p]hysiological monitoring [which] includes regular assessment of heart rate for safety reasons and also as an indicator of an individual's effort level during testing." Id. at 10. The Best Practices Guidelines observes that the evidence is clear that during an FCE there should be physiological response changes. When an indicator reports an acute increase in pain during the FCE, the physiological responses monitored could include increased heart rate, blood pressure, and breathing rate; diaphoresis; and pupil dilation. Id. at 12. With regard to the patient's, "[p]erformance or [e]ffort [l]evel . . . [i]t is recommended that Examiners make determinations about effort based on the presence of physiological and biomechanical signs (i.e., heart rate, respiration rate, muscle recruitment, and consistency of movement patterns) in combination with clinical examination findings and symptom reports." Id. at 17. If the examiner performs tests, including physiological and biomechanical tests, the results should be documented in the examiner's report. Id. at 19.
Marchant's RFCE does not document any such testing nor any results.
Even in the case upon which Dunham relies to support his contention that Marchant's RFCE constitutes significant objective evidence of disability, Madison, 225 F. Supp. 3d at 1388, that court, acknowledging the real potential for malingering in the subject FCE, noted that "to counterbalance any malingering, that FCE included a number of measures designed to ferret out lack of effort. None pointed to Madison short-changing the exercises." In a supporting footnote, the Madison court approvingly quoted the examiner's observation that:
Based upon subjective and objective data gathered during this FCE, as well as upon the medical records provided, it was determined the client did perform a full and consistent effort today. Mr. Madison was not only willing to attempt all tasks requested of him, but also willingly worked to his true physiologic abilities in each test performed during the material and nonmaterial handling portions of today's examination. Furthermore, validity tests administered were within acceptable parameters in all trials and the client demonstrated genuine organic impairments that are limiting his function.
Id. at 1388 n.6 (emphasis added).
Moreover, the court considered the Madison plaintiff's medical history and found that it strongly supported the validity of the FCE. The plaintiff's medical history from several medical providers consistently reflected objective evidence of physical impairment of his knee, including swelling; atrophy; diminished strength; reduced range of motion; two MRI scans disclosing osteoarthritis, an osteochondral defect, and three extremely large osteocar-tilaginous loose bodies in the joint space of the knee; a third MRI scan disclosing a full-thickness cartilage defect of the trochlea, an incomplete tear, an osteochondral defect, a sprain of the anterior cruciate ligament, and no significant change to the previous MRI scans performed five months earlier. Id. at 1384-86.
In the Court's view, Madison does not support Dunham's position that Marchant's RFCE constitutes compelling objective evidence of disability. If anything, it undermines Dunham's position, especially with regard to the requirement of validity, credibility, and reliability testing of the patient's performance in any type of functional capacity evaluation, especially an abbreviated one with no supporting objective evidence, as here.
While Dunham insists that Marchant's RFCE is the same as a more thorough, validity-tested FCE, even consistently calling the RFCE an FCE in his memoranda, the proof is contrary. Marchant's RFCE, consistently with Functional Assessment Rehab's own description, does not record that Marchant employed the validity testing essential to making her evaluation objectively reliable. Because of this shortcoming, while the Court accepts the RFCE as some evidence of Dunham's' restrictions and limitations, the Court does not view the RFCE as persuasive objective evidence of Dunham's disability. Thus, the Court gives Marchant's RFCE only limited weight. Altogether, Dr. Bryan's and Dr. Daves's reports and Marchant's RFCE do not rise to the level of the preponderance of medical evidence.
Dunham argues that Marchant's evaluation includes reliability testing, pointing to her evaluation of two tested activities: grip strength and pinch strength. It does not appear to the Court that even this constituted true validity testing as generally understood by courts and the experts, that is, measuring physiological responses (e.g. increased heart rate and blood pressure). But even if that were the case, grip and pinch strengths are not relevant here, and there is no recorded validity testing of the two activities relevant here: sitting and lifting.
B. Other Medical Evidence
Dunham does not offer the reports from his treating doctors, physical therapists, or the three medical file reviewers to support his claim that he is disabled under the Plan. Thus, it appears that Dunham implicitly acknowledges that this other medical evidence is not helpful to his cause. In contrast to Dunham, Lincoln contends that not only do the three categories of medical evidence proffered by Dunham fail to satisfy his burden of proof, Dunham's overall medical records, along with Dr. Ben-Aviv's and Dr. Khoury's medical file reviews, affirmatively show that Dunham was not disabled under the terms of the Plan as of the benefit termination date.
The record contains voluminous notes documenting Dunham's surgery, post-surgical care, pain management care, psychiatric visits, and physical therapy. Because the Court understands that its task is to review the entire record to determine whether Dunham has met his burden, the Court has done so. Having reviewed Dunham's complete medical history, the Courts finds that it does not support Dunham's claim that he was disabled as defined by the terms of the Plan after the benefits termination date.
The Court now discusses the other medical evidence.
1. Dr. Spina
The evidence from Dunham's post-surgical care does not provide objective evidence that Dunham is disabled under the Policy. Dr. Spina performed Dunham's surgery on November 26, 2019 and saw him for follow-up visits on December 11, 2019, January 13, 2020, March 2, 2020, March 30, 2020, May 4, 2020, July 6, 2020, and July 27, 2020. Dr. Spina did not in any of these visits identify any objective, medical basis that would suggest Dunham was functionally unable to perform his occupational duties as of the benefit termination date. Indeed, none of Dr. Spina's reports provide objective evidence for Dunham's complaints of debilitating pain. On the contrary, Dr. Spina consistently reported that that Dunham was recovering well from his surgery. On July 6, 2020, Dr. Spina reported that Dunham was "clear for all activities as tolerated." Three weeks later, on July 27, 2020, Dr. Spina reported that he was "puzzled" by Dunham's level of pain, as no objective tests could identify an objective source of such ongoing pain. As a result, Dr. Spina's reports do not provide evidence of ongoing disability.
2. Imaging
Dunham underwent x-rays of his thoracic spine on December 11, 2020, March 2, 2020, and July 6, 2020. He also underwent an x-ray of his entire spine on January 13, 2020 and a CT scan on July 27, 2020. All of these imaging tests uniformly showed no post-surgical complications. The Court notes that this objective medical evidence does not affirmatively demonstrate that Dunham was not functionally limited by pain. But it does not provide the objective evidence necessary for Dunham to prove disability by a preponderance of evidence under the terms of the Plan.
3. Pain Management
Likewise, the reports from pain management specialist Dr. Odell do not provide any objective evidence of Dunham's functional limitations. Dr. Odell did not perform tests, imaging, take measurements, or perform any other procedure that would provide objective evidence. Dr. Odell prescribed Dunham a variety of pain medications, including Cymbalta, gabapentin, Lyrica, and lidocaine patches and recommended lidocaine infusions. But treating pain is distinct from identifying functional limitations as a result of pain, and Dr. Odell's services were limited to treating Dunham's subjective pain. As such, it provides no evidence of Dunham's inability to perform his occupation.
4. Pain Psychologist
The reports from pain psychologist Dr. VanderVeen also demonstrate that Dr. VanderVeen treated Dunham's subjective pain but do not provide evidence of Dunham's ongoing disability. On September 15, 2020, Dr. VanderVeen reported that he recommended that Dunham "practice values-based and grounding exercises . . . [and] practice cognitive restructuring exercise . . . ." Dr. VanderVeen's reports do not opine on Dunham's level of functional limitation as a result of his pain. The reports certainly show that Dunham believes himself to be limited by his pain, but they do not objectively demonstrate the extent of Dunham's impairment. Like the physical therapy reports and Dr. Odell's pain management reports, Dr. VanderVeen's medical reports demonstrate his attempts to mitigate Dunham's self-reported pain but do not contain measurements, imaging, tests, or anything else that would substantiate Dunham's limitations.
5. Physical Therapy
The voluminous physical therapy reports also do not document objective findings that support Dunham's inability to perform his occupational requirements. They are largely devoid of objective tests or measurements and merely echo Dunham's subjective reports of pain.
The few objective measurements in the reports affirmatively reveal that Dunham can sit for at least four hours and therefore fulfill the sitting requirement of his occupation. As previously discussed, Dunham's occupation requires occasional sitting. As early as June 16, 2020, physical therapist Meier reported that Dunham had met the goal of standing and/or sitting for at least four hours at a time without back pain. Physical therapy records from July 15, 2020, July 21, 2020, August 11, 2020, and August 26, 2020 likewise state that he can sit or stand for up to four hours without pain. Nothing in the record suggests that Dunham's ability to sit and/or stand for four hours subsequently diminished.
The physical therapy reports also record the exercises that Dunham's physical therapists prescribed. These exercises, which include, for example, shoulder overhead presses in abduction with dumbbells of an unspecified weight, pushups on a table, shoulder extensions with resistance, and reverse lunges, do not demonstrate Dunham's incapacity to fulfill his occupational responsibilities.
The reports otherwise document Dunham's self-reports of ongoing pain, which do not satisfy his burden of proving disability by objective evidence. This example from Roper is illustrative: on March 19, 2021, Roper stated that "Bryce continues to give good effort in therapy but reports that pain limits his tolerance for increasing activity . . . ." Roper did not conduct any objective tests, or record measurements to substantiate the reported limitations. Likewise, Dunham stated on July 15, 2020 that he had been experiencing a "strong, dull burning ache in mid/lower back" and "[r]andomly get[ting] pulsating, stinging pain," but the physical therapy records do not contain tests that document the objective sources of such pain. Dunham subsequently reported to physical therapists on October 20, 2020 and December 18, 2020 that lifting groceries tended to aggravate his back pain, but no measurements or tests accompany Dunham's self-report. These self-reports are wholly subjective and do not constitute objective evidence merely because a physical therapist has recorded them. See, e.g., Lopez v. Standard Ins. Co., No. 8:16-CV-79-T-30TGW, 2017 WL 532119, at *24 (M.D. Fla. Jan. 24, 2017), report and recommendation adopted, No. 8:16-CV-79-T-30TGW, 2017 WL 519258 (M.D. Fla. Feb. 8, 2017), aff'd, 743 F. App'x 359 (11th Cir. 2018) ("[S]ubjective complaints do not become objective evidence merely because a doctor has written them down."). Overall, the physical therapy records contain no substantiation of limiting back pain as of the benefit termination date.
The scant objective findings predate the benefits termination date by so long and are so vague as to be essentially irrelevant. Meier reported on March 9, 2020, more than nine months before the benefits termination date, that Dunham had "[m]uscle atrophy [in the] rhomboids and mid trap . . . ." But there are no subsequent reports of muscle atrophy in any physical therapist's or physician's report. Another objective sign of muscle function is unhelpfully vague. On June 16, 2020, July 6, 2020, July 15, 2020, July 21, 2020, July 23, 2020, August 11, 2020, August 18, 2020, and August 26, 2020, physical therapy reports document the following measurements: 4 on right and left extension, 4- on right and left "AB", 4 on right and left "flex," 4 on right and left "ER," 4 on right and left "IR," and a 3/5 back extension. The reports do not specify whether these measurements reflect consistent scores across time or reflect an original measurement duplicated in subsequent reports. More importantly, these measurements do not demonstrate Dunham's functional abilities or limitations.
6. Medical File Reviewers
Lincoln contends that the medical reviewers' reports constitute affirmative evidence that Dunham was not disabled under the terms of the Plan as of the termination date. The Court agrees. Lincoln was entitled to rely upon these reports in denying ongoing long-term disability. United States Supreme Court precedent instructs that insurers may rely on such medical file reviewers, as, "in the area of ERISA, opinions of treating physicians are not entitled to any greater deference than those of reviewing physicians." Watts v. BellSouth Telecomms., Inc., 218 F. App'x 854, 856 (11th Cir. 2007) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003)).
As previously discussed, Lincoln hired Dr. Daves in September 2020 to evaluate Dunham's medical file. After the expiration of the three-month long-term disability period that Dr. Daves identified, Lincoln hired Dr. Ben-Aviv and, subsequently, Dr. Khoury to conduct follow-up reviews of Dunham's medical files to determine whether he was still disabled under the terms of the Plan. Both concluded that nothing in Dunham's medical record "would necessitate any specific restrictions . . . ."
Dunham contends that Dr. Ben-Aviv and Dr. Khoury did not properly evaluate the medical records and their reports therefore have scant evidentiary value. The record does not support Dunham's contention. Dr. Ben-Aviv, in fact, reviewed reports from Dr. Spina, Dr. Odell, and Dr. VanderVeen and accurately reported their diagnoses and care. Dr. Ben-Aviv also reported that Dunham underwent imaging and that these evaluations "did not reveal any medical or surgical complication." Dr. Ben-Aviv's conclusion that "[n]othing in the available medical record suggests that the post-op healing has not progressed as expected or would necessitate any specific restrictions at this point" derives from Dunham's medical history, the results of objective imaging, and the absence of any objective evidence to the contrary.
Dr. Khoury, too, appears to have based his opinion on the Dunham's complete medical history, including the presence or absence of objective evidence. He concluded that he agreed with Dr. Ben-Aviv's assessment, and "no specific restrictions were supported from a Physical Medicine & Rehabilitation perspective." Dr. Khoury reported that "X-rays thoracolumbar spine dated 03/02/2020 noted stable fusion status" and "there was no muscle atrophy or significant weakness as per clinician exams." Dr. Khoury also considered Marchant's RFCE in his report. Consequently, nothing suggests that Dr. Khoury did not consider all available medical evidence in rendering his report. The Court agrees with Lincoln that the two doctors' reviews not only fail to support Dunham's disability claim but constitute evidence to the contrary.
CONCLUSION
In sum, Dunham did not meet his burden of showing by a preponderance of objective medical evidence that he is disabled from performing his occupation under the terms of the Plan. For the reasons discussed above, the three categories of evidence that Dunham points to, Dr. Bryan's reports, Dr. Dave's review, and Marchant's RFCE, are insufficient to meet the requirements of the Plan. Nor does Dunham's full medical history support ongoing long-term disability. The terms of the Plan call for objective medical evidence, and Dunham's self-reported symptoms do not rise to the level of showing, by a preponderance of the evidence, that Dunham is disabled from performing his occupation as it is normally performed in the national economy.
Accordingly, the Court GRANTS Lincoln's Motion for Summary Judgment and DENIES Dunham's Motion for Summary Judgment. The Court contemporaneously enters judgment for Lincoln and against Dunham.
CHRONOLOGY
November 25, 2019: Dunham has a skiing accident. November 25, 2019: Dunham undergoes an MRI that shows a three column fracture at vertebrae T6 with 65 percent vertebral body height loss; a two column T8 fracture with approximately 30 percent vertebral body height loss; a nondisplaced T5 posterior1238spinous process fracture; a T7 superior endplate fracture; and left T9 facet fracture or contusion. November 26, 2019: Dr. Nicholas Spina performs spinal fusion surgery on Dunham after his accident. November 28, 2019: Dunham is discharged from the hospital. December 11, 2019: Post-surgical thoracic spine x-ray shows no postoperative complications. December 11, 2019: Dunham visits Dr. Spina's office. Dunham has his sutures removed. Dunham reports he is walking for five to ten minutes every hour. January 13, 2020: X-ray of the entire spine shows no hardware complication. January 13, 2020: Dunham sees Dr. Spina. Dunham reports he is walking thirty minutes a day. Dr. Spina clears Dunham to start pool activities, treadmill, and recumbent bike as tolerate and advises Dunham to avoid repetitive bending, lifting, and twisting. March 2, 2020: Dunham sees Dr. Spina for a follow-up appointment. Dr. Spina okays Dunham to begin physical therapy. March 2, 2020: X-ray shows no hardware complications. March 3, 2020: Dunham has a physical therapy intake with physical therapist Whitney Meier. March 9, 2020: Dunham sees Meier. March 11, 2020: Dunham sees Dr. Matthew Bryan for a general checkup. Dr. Bryan notes Dunham will ideally be back to work by April 15, 2020. March 30, 2020: Dunham speaks with Dr. Spina via telephone. Dunham states that walking/standing for more than two hours increases his pain. April 10, 2020: Dunham sees Meier. Dunham reports he was able to walk 30-40 minutes without back pain. May 4, 2020: Dunham speaks with Dr. Spina via telephone. Dunham says he would like to focus on strengthening and rehab, and Dr. Spina says he can provide a release from work note. May 19, 2020: Lincoln approves long-term disability request. May 25, 2020: Long-term disability begins. May 20, 2020: Angelle Nash conducts an occupational analysis and determines the requirements of Dunham's occupation. June 16, 2020: Dunham sees Meier. July 6, 2020: Dunham sees Meier. Dunham and Meier discuss his job duties. Meier recommends a pain clinic and consulting with physical therapist Keith Roper. July 6, 2020: Dunham sees Dr. Spina. Dr. Spina notes the Dunham is clear for all activities as tolerated but that Dunham continues to struggle with daily pain and demonstrates pain with even a light touch at the incision site. July 6, 2020: X-ray of Dunham's thoracic spine shows no postoperative complication, no loose hardware, and no medial or inferior breaches leading to nerve impingement. July 15, 2021: Dunham sees Roper. July 21, 2020: Dunham sees Roper. July 23, 2020: Dunham sees Roper. Dunham reports that grocery shopping is difficult for him. July 27, 2020: Dunham sees Dr. Spina. Dr. Spina is puzzled by Dunham's continued pain and recommends that Dunham see a pain psychologist. July 27, 2020: CT scan reveals no post-surgical abnormalities. August 7, 2020: Dunham sees Dr. Daniel Odell for pain management for the first time via telehealth. Dr. Odell diagnoses1239chronic bilateral thoracic back pain and states that Dunham is likely to benefit from physical therapy, behavioral medicine treatment, and pain medications. August 11, 2020: Dunham sees Roper. August 12, 2020: Dunham undergoes a health and behavior assessment with pain psychologist Dr. John VanderVeen. The assessment included a comprehensive pain evaluation consisting of medical, physical therapy, and behavioral medicine evaluations. Dr. VanderVeen diagnosed Dunham with chronic pain syndrome and adjustment disorder with mixed anxiety and depressed mood. August 12, 2020: Dunham has an intake with physical therapist Maureen McGrath. Dunham reports no significant limitations for walking tolerance or standing tolerance. August 18, 2020: Dunham sees Roper. Roper's notes state that Dunham can sit and stand for more than four hours and walk 30-40 minutes without back pain. August 20, 2020: Dunham sees McGrath. August 20, 2020: Dunham sees Dr. VanderVeen. August 26, 2020: Dunham sees Roper. Dunham needs a form from work completed and wants to discuss the potential to return to work. The notes state that Dunham can sit and stand for more than four hours and walk 30-40 minutes without back pain. September 4, 2020: Dunham sees Dr. Bryan for a general checkup. Dr. Bryan's notes list the accommodations Dunham will need to return to work. September 15, 2020: Dunham sees Dr. VanderVeen. September 15, 2020: Dunham sees McGrath. September 18, 2020: Dunham sees Dr. Odell via telehealth. Dr. Odell's notes say Dunham has no gait problem or joint swelling and ambulates without apparent difficulty. September 23, 2020: Daves conducts a file review and says that Dunham will remain disabled through December 4, 2020. September 30, 2020: Dunham see McGrath. Dunham undergoes dry point needling. McGrath reports significant scar tissue and sensitivity to touch. September 30, 2020: Dunham sees Dr. VanderVeen. October 13, 2020: Dunham sees Dr. Bryan for a general checkup. October 20, 2020: Dunham sees McGrath. Dunham reports carrying groceries is painful. Dunham undergoes dry point needling session. November 6, 2020: Dunham sees Dr. Odell. Odell reports a normal musculoskeletal range of motion. Dr. Odell reports that Dunham started hiking, but experiences more pain in the days following. November 11, 2020: Dunham sees Roper. November 12, 2020: Dunham sees physical therapist Joshua Turner. November 20, 2020: Dunham sees Dr. VanderVeen. November 20, 2020: Dunham sees Roper. Dunham reports it is too painful for him to clean his house. December 4, 2020: The projected disability period Dr. Daves identified ends. December 9, 2020: Dunham sees Dr. Bryan for a general checkup. December 14, 2020: Dunham sees Turner. December 18, 2020: Dunham sees Dr. Odell via telehealth. Dunham reports he took a break from medications for his exams.1240December 31, 2020: Dunham visits Dr. Bryan's office to get long-term disability paperwork filled out. January 6, 2021: Dr. Bryan submits the Attending Physician's Statement on Lincoln's form. January 6, 2021: Dunham sees Roper. January 29, 2021: Dr. David Ben-Aviv reviews Dunham's updated medical files. February 2, 2021: Dunham sees Roper. February 3, 2021: Lincoln informs Dunham his LTD benefits ended, effective on January 28, 2021. February 13, 2021: Dunham sees Dr. Bryan for a general checkup. Dr. Bryan notes that LTD was denied. February 19, 2020: Dr. Bryan writes a letter to Lincoln on behalf of Dunham saying Dunham is still disabled and cannot lift, sit, or stand for very long. February 26, 2021: Dunham sees Roper. Dunham is upset he was denied disability. Roper reports Dunham is still markedly limited in his tolerance for prolonged activity or postures. March 5, 2021: Sarah Marchant does a Residual Function Capacity Evaluation. March 5, 2021: Dunham sees Dr. Odell via videoconference. March 11, 2021: Dunham sees Dr. Bryan for a general checkup. March 19, 2021: Dunham sees Roper. May 3, 2021: Dunham sees Dr. Bryan for a general checkup. May 17, 2021: Dr. Bryan completes the second Attending Physician's Statement on Plaintiff's counsel's form. August 9, 2021: Dr. Fargo Khoury reviews Dunham's updated files August 13, 2021: Dr. Bryan provides an addendum to Lincoln in response to Dr. Khoury's review. August 19, 2021: Dunham submits a letter to Lincoln in response to Dr. Khoury's review. He states that he is capable of gentle swimming and hiking, not strenuous exercise. July 14, 2021: Dunham files an administrative appeal. September 23, 2021: Dr. Khoury conducts a follow-up review and stands by his original decision that Dunham is not disabled. October 5, 2021: Lincoln upholds its administrative decision denying LTD.