Opinion
Civil Action No. 16-cv-03027-RM-MJW
2018-05-22
Philip Brian GOODMAN, Plaintiff, v. The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant.
Carol Lynn Thomson, Paul E. Collins, Treece Alfrey Musat, P.C., Denver, CO, for Plaintiff. James E. Dallner, Lorenzo Ekker Dallner, LLC, Denver, CO, for Defendant.
Carol Lynn Thomson, Paul E. Collins, Treece Alfrey Musat, P.C., Denver, CO, for Plaintiff.
James E. Dallner, Lorenzo Ekker Dallner, LLC, Denver, CO, for Defendant.
ORDER
RAYMOND P. MOORE, United States District Judge
I. INTRODUCTION
Plaintiff Philip Brian Goodman ("Plaintiff"), a participant in the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq. , welfare benefit plan issued to Four Winds Interactive, Inc. ("Four Winds"), Plaintiff's former employer, by defendant The Guardian Life Insurance Company of America ("Defendant"), who insures and administers the plan at issue in this matter, brought this action pursuant to 29 U.S.C. § 1132 challenging the propriety of Defendant's actions in denying Plaintiff long-term disability ("LTD") benefits. (ECF Nos. 1-1, 15.)
Specifically, Plaintiff alleges Defendant: 1) breached ERISA by denying his claim for LTD insurance benefits under the plan, (ECF No. 15 ¶¶ 62–74); and 2) breached its fiduciary duties with respect to the plan by failing to discharge its duties for the exclusive purpose of providing benefits to participants and their beneficiaries as required under 29 U.S.C. § 1104, (id. ¶¶ 75–79).
On November 17, 2016, Plaintiff filed suit in the District Court, Denver County. (See ECF No. 1-1.) Thereafter, Defendant removed the matter to this Court. (ECF No. 1.) On December 22, 2016, Plaintiff filed an amended complaint (ECF No. 15), and Defendant subsequently answered (ECF No. 16). Presently before the Court is the parties' Joint Motion for a Determination (ECF No. 60), which consists of Plaintiff's opening brief in support (ECF No. 40), Defendant's response (ECF No. 56), and Plaintiff's reply (ECF No. 59). At this juncture, the motion for a determination has been fully briefed and stands ready for decision. Additionally pending is Defendant's Motion to Strike or in the Alternative for Leave to File Surreply (the "motion to strike" ) (ECF No. 61), to which Plaintiff has responded (ECF No. 62).
As discussed infra , see Section IV., the Court GRANTS the portion of Defendant's motion asking the Court to strike the document attached to Plaintiff's reply and all argument in relation thereto. Understanding this, the Court will limit its reference to the motion to the portion seeking such relief.
II. STANDARD OF REVIEW
The parties quarrel over the appropriate standard to be applied by the Court in its review of Defendant's denial of LTD benefits. Plaintiff is of the opinion that a de novo review is required, whereas Defendant contends that the more deferential arbitrary and capricious standard must be applied. (See ECF No. 40 at 6-8; ECF No. 56 at 13-17.) The root of the parties' discord is Colo. Rev. Stat. § 10-3-1116(2) and whether it is preempted by ERISA. The pertinent portion of the statute states:
An insurance policy, insurance contract, or plan that is issued in this state that offers health or disability benefits shall not contain a provision purporting to reserve discretion to the insurer, plan administrator, or claim administrator to interpret the terms of the policy, contract, or plan or to determine eligibility for benefits.
Colo. Rev. Stat. § 10-3-1116(2) (2008). Here, the plan contains such a provision, which reads:
We have the discretionary authority to: (a) interpret the terms of this plan; and (b) determine a covered person's eligibility for: (i) coverage; and (ii) benefits under the plan. All such determinations are conclusive and binding, except that they may be modified or reversed by a court or regulatory agency with appropriate jurisdiction.
(ECF No. 29, Administrative Record ("AR"), at 100. )
The administrative record is docketed in two parts. (See ECF Nos. 29, 30.) The Court will cite to the document as originally paginated.
The Supreme Court, in Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), explained that "a denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." 489 U.S. at 115, 109 S.Ct. 948. However, the matter of discretionary grants of authority has been rendered substantially thornier as states have enacted statutes – such as § 10-3-1116(2) – that essentially invalidate discretionary clauses. Thus, the question becomes one of preemption and whether § 10-3-1116(2) can stand in the face of ERISA's regulatory scheme.
"ERISA includes expansive pre-emption provisions ... to ensure that employee benefit plan regulation would be exclusively a federal concern." Aetna Health Inc. v. Davila , 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (citing 29 U.S.C. § 1144 ) (internal quotation marks omitted). "There are two aspects of ERISA preemption: (1) ‘conflict preemption’ and (2) remedial or ‘complete preemption.’ " David P. Coldesina, D.D.S. v. Estate of Simper , 407 F.3d 1126, 1135–36 (10th Cir. 2005) (citing 29 U.S.C. § 1144(a) ). The expansive scope of preemption is bookended by ERISA's saving clause. See Kentucky Ass'n of Health Plans, Inc. v. Miller , 538 U.S. 329, 341–42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003) ; 29 U.S.C. § 1144(b)(2)(A) ("law[s] ... which regulat[e] insurance, banking, or securities" are saved from preemption). As explained by the Kentucky Ass'n of Health Plans, Inc . court,
for a state law to be deemed a ‘law ... which regulates insurance’ under § 1144(b)(2)(A), it must satisfy two requirements. First, the state law must be specifically directed toward entities engaged in insurance. Second, ... the state law must substantially affect the risk pooling arrangement between the insurer and the insured.
538 U.S. at 341–42, 123 S.Ct. 1471 (some alteration in original).
To date, the Tenth Circuit has not addressed the issue of preemption and ERISA's saving clause with respect to § 10-3-1116(2). That said, several courts in this district have broached the subject and concluded that § 10-3-1116(2) falls within ERISA's saving clause and "[i]s not preempted by ERISA due to a conflict because the abuse of discretion standard of review arises from contractual drafting, not from any ERISA provision, and therefore the state statute does not affect ERISA's statutory enforcement scheme." Arapahoe Surgery Ctr., LLC v. Cigna Healthcare, Inc. , 171 F. Supp. 3d 1092, 1108 (D. Colo. 2016) (footnote omitted) (discussing and adopting the holding of McClenahan v. Metro. Life Ins. Co. , 621 F. Supp. 2d 1135, 1140-42 (D. Colo. 2009), aff'd , 416 F. App'x 693 (10th Cir. 2011), and aff'd , 416 F. App'x 693 (10th Cir. 2011) ); see also Kohut v. Hartford Life and Acc. Ins. Co. , 710 F. Supp. 2d 1139, 1149 (D. Colo. 2008) (determining that " section 10–3–1116 is a law ‘regulat[ing] insurance’ within the meaning of section 1144(b)(2)(A), and that it is therefore saved from preemption by ERISA.").
To the extent that Kohut does not identify to which subsections of § 10-3-1116 its ruling applied, Judge Arguello, in Flowers v. Life Ins. Co. of N. Am. , 781 F. Supp. 2d 1127 (D. Colo. 2011), clarified that the holding in Kohut is limited to subsections (2) and (3) of § 10-3-1116. See 781 F. Supp. 2d at 1132.
Defendant's argument in this instance is little more than a feeble attempt to swim against the current that is the consensus of district courts in this circuit. Defendant relies heavily on Conkright v. Frommert , 559 U.S. 506, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010) as illustrative of ERISA's intent to afford plan administrators the ability to endow themselves with deferential review via discretionary clauses. (See ECF No. 56 at 15-17.) While Conkright discusses discretionary review in ERISA cases at a superficial level, the crux of that case was whether the Second Circuit erred in stripping a plan administrator of its discretionary authority where the plan administrator's initial interpretation of the plan terms violated ERISA. See Conkright , 559 U.S. at 512-14, 130 S.Ct. 1640. Conkright is of little import to this Court's discussion of the viability of § 10-3-1116(2). Indeed, nowhere in Conkright is there any mention of preemption. Beyond its generalized support for the application of preemption and deferential review by this Court, Defendant fails to substantiate its position.
In light of the consensus reached by sister courts in this district and finding Defendant's position wholly unsupported, the Court finds § 10-3-1116(2) not to be preempted. See McClenahan , 621 F. Supp. 2d at 1140-42 (finding no preemption under ERISA for § 10-3-1116(2) ). Therefore, the appropriate standard of review in this instance is de novo.
III. BACKGROUND
A. The Plan
Under the plan's LTD subsection, disability
mean[s] that a current sickness or injury causes physical or mental impairment to such a degree that the covered person is:
(1) During the elimination period and the own occupation period, not able to perform, on a full-time basis, the major duties of his or her own occupation.
(2) After the end of the own occupation period, not able to perform, on a full-time basis, the major duties of any gainful work.
(AR at 103) (emphasis in original). The elimination period is "[t]he period of time a covered person must be disabled , due to a covered disability , before th[e] plan's benefits are payable." (Id. at 103-04) (emphasis in original). The elimination period for disability due to sickness is 90 days, (id. at 13), and sickness is defined to be "[a]n illness or disease," (id. at 107). Own occupation
[m]eans the occupation: (a) the covered person is routinely performing immediately prior to disability ; (b) which is the covered person's primary source of income prior to disability ; and (c) for which he or she is insured under this plan. Occupation includes any employment, trade or profession that are related in terms of similar: (i) tasks; (ii) functions; (ii) skills; (iv) abilities; (v) knowledge; (vi) training; and (vii) experience; required by employers from those engaged in a particular occupation in the general labor market in the national economy. Occupation is not specific to a certain employer or a certain location.
(Id. at 106) (emphasis in original).
The plan does not afford coverage for any pre-existing condition, which
is an injury or sickness , whether diagnosed or misdiagnosed, and any symptoms thereof, for which, in the look back period, a covered person:
(a) receives advice or treatment from a doctor ;
(b) undergoes diagnostic procedures other than routine screening in the absence of symptoms or suspicion of disease process by a doctor ;
(c) is prescribed or takes prescription drugs; or
(d) receives other medical care or treatment, including consultation with a doctor.
The ‘look back period’ is the twelve months before the latest of: (a) the effective date of the covered person's insurance under this plan ; (b) the effective date of a change that increases the benefits payable by this plan ; and (c) the effective date of a change in the covered person's benefit election that increases the benefit payable by this plan.
No benefits are payable for disability : (a) caused by; (b) contributed to by; or (c) resulting from; a pre-existing condition; unless the disability starts after the date the covered person is insured under this plan for 12 months in a row.
(Id. at 96) (emphasis in original).
B. Procedural History
Plaintiff, a resident of Castle Rock, Colorado, was hired by Four Winds on December 8, 2014. (Id. at 523, 1282.) Plaintiff's LTD benefits coverage took effect on January 1, 2015. (Id. at 512.) On May 12, 2015, Plaintiff stopped working and began receiving short-term disability ("STD") benefits. (Id. at 1015.)
On July 30, 2015, Plaintiff submitted a claim to Defendant for LTD benefits claiming disability as of May 13, 2015. (Id. at 491, 1013.) After an initial review, on October 15, 2015, Defendant denied Plaintiff's LTD benefits claim. (Id. at 491-97.) The basis for Defendant's denial in this instance was that Plaintiff "ceased working due to Mild Cognitive Impairment/Dysfunction and related symptoms" and was "seen and treated within the look-back period ... by [his] Sleep Medicine Physician, Dr. Duntley[,] for [his] disabling condition." (Id. at 491.) In response, on January 19, 2016, Plaintiff, through counsel, appealed Defendant's denial. (Id. at 1722-24.) Plaintiff's appeal explained that:
The amended complaint incorrectly lists the date Plaintiff submitted his LTD claim as May 18, 2015. (See ECF No. 15 ¶ 30.)
The medical conditions which constitute the reason for Mr. Goodman's illness
include: syncope; heart conditions; chest discomfort; multiple joint pain; and chronic disease of the muscular skeletal system....
Although Mr. Goodman had previously been treated for sleep apnea at the time that he sought treatment in the spring of 2015, he was compliant with his prescribed CPAP usage and after adjustments, was still suffering cognitive symptoms as well as syncope, exercise intolerance and musculoskeletal pain, prompting his physicians to order further diagnostic studies including FDG-PET scan, and cerebrospinal fluid analysis. As of June 2015, Mr. Goodman's diagnoses included: 1) Mild Cognitive dysfunction, likely multifactorial; 2) History of syncope, cardiac workup in progress with his local care providers; 3) Exercise intolerance without evidence for primary autonomic disorder ; 4) Fatty liver disease with associated elevated ammonia; 5) Hyperlipidemia ; 6) Possible ‘prediabetes ’ based on laboratory assessments; 7) Ongoing rectal bleeding ; 8) Diffuse musculoskeletal pain; and 9) Mildly elevated GAD65 antibody of uncertain significance; all in addition to his previously diagnosed obstructive sleep apnea on CPAP and restless leg syndrome.
(Id. at 1723.) Thereafter, Defendant submitted Plaintiff's appeal to its In-House Nurse Case Manager who, in turn, submitted it to outside, independent review consultants board-certified neurologist Daniel Kitei, D.O., M.A. ("Dr. Kitei") and neuromuscular specialist Siva Ayyar, M.D., M.P.H. ("Dr. Ayyar") for Multiple Peer Physician review ("MPP review"). (Id. at 2091.) Upon receipt of the results from the MPP review, (id. at 498-511), Defendant provided them to two of Plaintiff's physicians – sleep specialist Paul Duntley, M.D. ("Dr. Duntley") and neurologist Bryan Woodruff, M.D. ("Dr. Woodruff") – for comment and requested that the doctors either indicate their agreement with the MPP review results or provide clinical evidence to support their disagreement. (Id. at 2068, 2086.) Thereafter, Dr. Woodruff submitted a one-page response to the MPP review. (Id. at 2087.) Dr. Duntley never responded.
On May 19, 2016, Defendant informed Plaintiff that his appeal had been denied. (Id. at 512-19.) In this denial letter (the "second denial letter"), Defendant found Plaintiff's "disabling diagnosis of OSA, Sleep Apnea, Depression, Restless Leg Syndrome and Cognitive Dysfunction were due to a Pre-Existing Conditions [sic] as defined by the Group Policy." (Id. at 512.) The second denial letter contained summaries of the MPP reviewers' opinions, which explained that neither reviewer found Plaintiff's conditions to be disabling, and their answers to various questions, in which both reviewers noted that Plaintiff had been treated for his disabling conditions during the look-back period. (Id. at 513-16.) The second denial explained that
[b]ased on the medical records and Peer Panel Review, there is documentation that supports during the 12 months prior to your LTD Coverage effective date of January 1, 2015, that you were treated for the diagnosis of OSA, Sleep Apnea, Depression, Restless Leg Syndrome, and Cognitive Dysfunction which was the condition [sic] which you have claimed disabling as of your last day worked May 12, 2015.
(Id. at 518.)
A month later, on June 15, 2016, Plaintiff, through counsel, sought reconsideration of Defendant's denial on the basis that Defendant's conclusion in the second denial letter was incomplete because "two of the symptoms and/or conditions which contribute most to [Plaintiff's] current inability to work or function normally in his activities of daily life were not addressed" and explained that the maladies at issue were "chronic debilitating headaches which qualify as chronic migraines and recurring episodes of syncope." (Id. at 2099.) Based Plaintiff's request for reconsideration, Defendant resubmitted Plaintiff's claim to one of the independent reviewers, Dr. Kitei, for a supplemental opinion premised on newly submitted medical evidence. (Id. at 2147-48.) On July 22, 2016, Dr. Kitei issued his supplemental report. (Id. at 520-22.) In pertinent part, Dr. Kitei explained that
[b]ased on the information available for review ..., it is the reviewer's opinion within a reasonable degree of clinical probability that, as noted in my previous report, the claimant has multiple complaints, including cognitive complaints, episodes of collapse, and fatigue, but testing has not revealed a clear neurologic cause. He has had a very thorough evaluation, including MRI, EEG, PET scan, and CSF testing, and he was seen at Mayo Clinic with no underlying neurologic diagnosis found. He did have some abnormal mental status testing, but two rounds of neuropsychological testing were notable for a high suspicion of symptom magnification and somatoform disorder, so all abnormalities and complaints should be interpreted with caution. That being said, the claimant does have complaints of collapse and loss of consciousness and one of those episodes was noted on 5/23/16 at the Mayo Clinic. His spell is not classic for syncope or seizure and, again, there is a high suspicion form symptom magnification, but given his repeated spells, safety restrictions would be appropriate considering the possibility that the spells are organic in nature.
(Id. at 2233.)
On July 28, 2016, Defendant provided Dr. Kitei's supplemental report to Dr. Woodruff for review and comment. (Id. at 2197.) Dr. Woodruff's response, which is dated August 1, 2016, states that he had a "minor edit to the report ..., [but was] otherwise in agreement." (Id. at 2230.) The edit Dr. Woodruff made to Dr. Kitei's supplemental opinion appears in the "Summary of Records" section and pertains to Dr. Kitei's description of a May 23, 2016 visit. (See id. at 2233.) Specifically, Dr. Woodruff changed the words "his symptoms" to "increasing cognitive symptoms" in the sentence "He complained of increasing cognitive symptoms, but it was felt by the evaluator that his symptoms ‘did not seem to be evident on my office mental status exam today.’ " (Id. ) (emphasis added).
On August 26, 2016, Defendant responded to Plaintiff's request for reconsideration and upheld its denial. (Id. at 523-533.) As set forth in its third denial letter (the "final denial letter"), Defendant reiterated that it found Plaintiff's "disabling diagnosis of OSA, Sleep Apnea, Depression, Restless Leg Syndrome and Cognitive Dysfunction were due to a Pre-Existing Conditions [sic] as defined by the Group Policy." (Id. at 523.) With respect to Plaintiff's headaches and syncope, the final denial letter explained that "[u]pon review of Mr. Goodman's file, [Defendant] determined that the diagnosis of headaches were [sic] not previously mentioned in either the initial LTD claim review or in [its] appeal review as a disabling diagnosis. Therefore, [Defendant] decided to reopen [its] appeal ... for the diagnosis of Syncope only." (Id. at 530.) After discussing Dr. Kitei's addendum to his original report, the final denial letter concluded that Defendant
determined that the diagnosis of Syncope was not treated during the look back period ..., but that there is not sufficient evidence of functional impairments
from the diagnosis of Syncope and headaches which are of sufficient intensity to preclude him from performing his own occupation as of May 13, 2015 and therefore, no LTD benefits are payable[.]
(Id. at 531.)
Six weeks later, on October 7, 2016, Plaintiff, through counsel, provided to Defendant additional medical records and again argued that he was entitled to LTD benefits. (Id. at 2688-89.) On November 17, 2016, Plaintiff filed the instant action.
IV. THE MOTION TO STRIKE
In his reply in support of the motion for determination, Plaintiff attached thereto a document, dated May 31, 2016, that was sent by Defendant to Plaintiff wherein Defendant denied Plaintiff's request to port his life insurance coverage. (See ECF No. 59-1.) Plaintiff offers the document as illustrative of an instance in which Defendant found Plaintiff to be disabled. (See ECF No. 59 at 5-6.) In response, Defendant, in the motion to strike, asserts, inter alia , that the document in question is outside of the confines of the administrative record and is, therefore, outside of the scope of the Court's purview in this instance. (See ECF No. 61.)
As explained by the Tenth Circuit in its discussion of the introduction of evidence in the context of a de novo ERISA claim review:
the best way to implement ERISA's purposes in this context is ordinarily to restrict de novo review to the administrative record, but to allow the district court to supplement that record ‘when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’
Hall v. UNUM Life Ins. Co. of Am. , 300 F.3d 1197, 1202 (10th Cir. 2002) (quoting Quesinberry v. Life Ins. Co. of N. Am. , 987 F.2d 1017, 1025 (4th Cir. 1993) ). The Hall court went on to state "that it is the unusual case in which the district court should allow supplementation of the record" and identified several "exceptional circumstances," none of which are present in the matter bar, in which supplementation is appropriate. Id. at 1203 (internal citation omitted).
Plaintiff's sole argument in support of the inclusion of the document in question is that "[i]t is, albeit at a minimal level, helpful to understanding and evaluation [sic] of Defendant's decision-making process and the arguments it has presented in support thereof." (ECF No. 62 at 3.) Ignoring Plaintiff's procedural failure, i.e. , seeking leave to supplement the record, the Court finds Plaintiff has failed to demonstrate that the introduction of the document in question is necessary to conduct an adequate de novo review of the benefit decision. As a result, Defendant's motion to strike is granted, and the Court will not consider the document attached to Plaintiff's reply or any argument advanced in connection therewith in its review of the Defendant's LTD benefits determination.
V. THE MOTION FOR A DETERMINATION
It is apparent from the various denial letters, the initial appeal, and the request for reconsideration that there exists a discord between the parties with respect to specific maladies that rendered Plaintiff disabled – the parties' filings in support of and opposition to the pending motion reiterate as much. This is so because Plaintiff was afflicted with a multitude of ailments that were, at times, discussed specifically and, in other instances, addressed and diagnosed categorically by Plaintiff's treating physicians. That said, review of the administrative record makes evident that one of Plaintiff's physicians offered several opinions as to Plaintiff's disabling diagnosis and that Defendant applied these diagnoses in its review of Plaintiff's LTD claim.
Plaintiff's argument in opposition to Defendant's determination can be bifurcated into: 1) application of the pre-existing condition exclusion; and 2) Defendant's conclusion that Plaintiff was not disabled. The Court will address each in turn.
Additionally, Plaintiff posits that Defendant's LTD denial is at odds with its decision to award STD benefits. (See ECF No. 40 at 2 n.1, 11; ECF No. 56 at 5.) The Court finds this argument unpersuasive. The portion of the administrative record on which Plaintiff relies is an internal note from Defendant's Disability Claims Management System. (See ECF No. 40 at 11 (citing AR at 1035).) The note states:
8/31/15 Ben/pc to benefits coordinator
- Spoke w/Lisa Pearce regarding claim; advised this claim is pre-x, am still awaiting pre-x records. Was told this was done in STD and found negative, advised that still needs to be done in LTD and have now requested additional Drs. records as notes indicate this may have been a pre-x condition.
(AR at 1035.) As the note illustrates, Defendant's internal reviewers were seeking additional information prior to reaching a determination with respect to Plaintiff's LTD claim. Understanding this, Plaintiff's reliance on the initial STD determination is inapposite given that the STD determination was premised on a less factually-developed record as compared to the subsequent LTD determination.
A. Pre-existing Condition Exclusion
Plaintiff's last day worked prior to claiming disability, May 12, 2015, fell within the twelve-month period following his initial LTD benefits coverage date, January 1, 2015. As a result, the plan's look-back provision was triggered. Under the look-back provision, Defendant was tasked with determining whether Plaintiff's allegedly disabling conditions were the result of some pre-existing condition, as defined by the plan. In so doing, Defendant was to examine the timeframe from December 31, 2013 to December 31, 2014. As noted above, Defendant denied coverage at each stage of the claim review process on the basis of the pre-existing condition exclusion to coverage. Thus, it must be determined whether Plaintiff "receive[d] advice or treatment from a doctor; ... under[went] diagnostic procedures other than routine screening in the absence of symptoms or suspicion of disease process by a doctor; ... [wa]s prescribed or t[ook] prescription drugs; or ... receive[d] other medical care or treatment, including consultation with a doctor" for his disabling condition, "whether diagnosed or misdiagnosed, and any symptoms thereof," during the look-back period. (AR at 96.) Under a de novo standard of review, Defendant bears the burden to show that Plaintiff's disabling conditions fit within the exclusionary clause. See Rasenack ex rel. Tribolet v. AIG Life Ins. Co. , 585 F.3d 1311, 1319 (10th Cir. 2009) (further citation omitted).
The parties disagree as to the exact dates of this period, but the difference – a single day – is inconsequential in the Court's review. (Compare ECF No. 40 at 1 (noting the initial date to be December 31, 2013), with ECF No. 56 at 5 (noting the date to be January 1, 2014).)
As was made clear at the outset, there was no singular root cause that led to the onset of Plaintiff's disabling conditions. Rather, Plaintiff suffered from a complicated set of issues, resulting in a number of symptoms, for which a singular source was not easily identifiable. (See, e.g. , AR at 1908 (noting that, as of April 6, 2015, the etiology of Plaintiff's cognitive issues was unclear), 2352 (referencing additional diagnostic testing and remarking that, as of May 18, 2015, there was "no clear diagnosis"), 389-91 (explaining that, as of June 10, 2015: Plaintiff was "experiencing a confusing and complex series of neurological symptoms"; that "[t]he cognitive dysfunction is difficult to put together with the constellation of symptoms"; and "there just does not appear to be a unifying diagnosis"), 2346-48 (finding no clear etiology as of July 28, 2015).) Dr. Woodruff went so far as to tell Plaintiff, at a July 21, 2015 visit, that "we may be left with simply recommending aggressive treatment of the known contributing factors to his cognitive symptoms." (Id. at 1726.) Interestingly, the notes of the July 21, 2015 visit were the basis of Plaintiff's proffered list of disabling diagnoses set forth in his initial appeal. (Compare id. at 1723, with id. at 1727.)
Despite the lack of a clear etiology for Plaintiff's ailments, Dr. Woodruff offered his opinion as to extent of Plaintiff's disabling maladies as well as several supplemental statements on the issue. A June 24, 2015 form notes that Dr. Woodruff found Plaintiff's disabling diagnosis to be "extreme fatigue, muscle weakness, blackouts, and bilateral extremity joint pain." (Id. at 488.) The following month, on July 28, 2015, Dr. Woodruff, in his answers to Defendant's inquiries, identified Plaintiff's "restrictions/limitations that preclude a return to work" to be "ongoing cognitive and musculoskeletal symptoms that would interfere with [Plaintiff's] work performance." (Id. at 1558.) Thereafter, on September 21, 2015, Dr. Woodruff, again answering questions proffered by Defendant, explained that "cognitive symptoms interfere with [Plaintiff's] ability to follow through and manage cognitively demanding tasks; fatty liver disease could be a contributing factor with associated mild metabolic encephalopathy." (Id. at 490.) While Dr. Woodruff's opinions and statements differ with respect to the level of detail provided, they comport with one another and evidence no true change in his view of Plaintiff's disabling maladies. A common thread throughout all of these opinions is cognitive ailments. (See id. at 488, 1558, 490.)
Indeed, support for the consistency of Dr. Woodruff's opinions can be seen in the fact that Plaintiff relies on Dr. Woodruff's original June 24, 2015 diagnosis throughout his filings. (See, e.g. , ECF No. 40 at 21; ECF No. 59 at 10.)
The administrative record makes clear that Plaintiff suffered from cognitive issues at various times both during and prior to the look-back period. For example, a month before he stopped working, Plaintiff saw Dr. Duntley in connection with his sleep apnea and reported a "continued worsening of his mental status." (Id. at 1362.) At this visit, Plaintiff's wife reported that the "symptoms at present are similar to the symptoms [Plaintiff] had two years ago ." (Id. ) (emphasis added). Reference to previous cognitive issues and treatment therefor is also evidenced in the notes of an April 16, 2015 visit to the office of Jeffrey Tam Sing, M.D., at which Plaintiff was seen by Sarah Smith, P.A. ("Ms. Smith") for headaches, sleep apnea, and somatoform disorder. (Id. at 1552-54.) As part of this visit, Ms. Smith discussed with Plaintiff his cognitive issues of even date, which included episodes of confusion, cognitive changes, headaches, and balance issues. (See id. at 1552.) In her notes of the visit, Ms. Smith remarked that Plaintiff "had very similar symptoms a few years ago " that improved with the use of a CPAP machine. (Id. ) (emphasis added). (see also id. at 1418 (March 17, 2015 visit with Dr. Duntley in which it was noted that Plaintiff "had similar [cognitive] symptoms two years ago that have waxed and waned since and he reports nothing new with current symptoms." (emphasis added)).) In an effort to illustrate the impropriety of Defendant's denial, Plaintiff argues that the visits on which Defendant relied as illustrative of his receipt of treatment for his disabling conditions during the look-back period were unrelated to his disabling diagnosis and that Defendant failed to demonstrate that the treatment at issue addressed his subsequently diagnosed conditions. Neither theory proves fruitful.
1. Treatment for Sleep Apnea
Plaintiff posits that the treatment rendered during the look-back period on which Defendant premised its denial – visits with Dr. Duntley on August 27, 2014 and November 26, 2014 – was confined to treatment for his sleep apnea and that his disabling conditions were in no way a product of his sleep apnea. (ECF No. 40 at 10.) Review of the salient portions of the administrative record belies Plaintiff's argument with regard to the extent of treatment rendered. Dr. Duntley's notes of treatment for August 27, 2014 state that Plaintiff presented "for reevaluation of sleep apnea" and that "[h]is main complaint is he is having daytime cognitive symptoms." (AR at 1634.) Dr. Duntley went on to describe Plaintiff's reported issues with sleeping and staying asleep and discussed the results of sleep study that was performed in 2012. (Id. ) As for his assessment, Dr. Duntley stated that Plaintiff "has moderate to severe sleep apnea," "significant restless leg syndrome," that his OSA and RLS/PLMS are likely playing a significant role in his insomnia, weight loss was recommended, and, with respect to cognitive change, Plaintiff "has had an extensive evaluation for this" and "[h]e may have an improvement if his OSA is adequately treated." (Id. ) In his notes of treatment for the November 26, 2014 visit, Dr. Duntley indicated that the visit was a follow-up for sleep apnea. (Id. at 1352.) Plaintiff reported doing much better and stated that "his cognitive function is improving," but he continued to have some trouble falling and staying asleep. (Id. )
It is uncontroverted that Plaintiff received treatment for his sleep apnea on the dates in question, and if the administrative record was limited to these treatment notes, the matter would be a significantly closer call. From all that appears, Defendant was confronted with this same uncertainty and, in an effort to resolve the pre-existing condition issue, sent to Dr. Duntley a questionnaire inquiring about his visit with Plaintiff on November 26, 2014. The questionnaire asked, inter alia , if "the reason [Dr. Duntley] saw [Plaintiff] on 11/26/14 [was] related to diagnosis [sic] of[ ] extreme fatigue, muscle weakness, blackout and bilateral lower extremity joint pain[,]" to which Dr. Duntley responded by modifying the question to include "cognitive dysfunction" in its list of diagnoses and answered "yes." (Id. at 1351.) In other words, when asked if he treated Plaintiff for the exact conditions Dr. Woodruff identified as Plaintiff's disabling diagnosis, (See id. at 488), Dr. Duntley not only answered affirmatively, he went so far as to include cognitive dysfunction – which was referenced in Dr. Woodruff's second opinion and specifically listed in his third – in the list of ailments addressed during the look-back period. Thus, regardless of whether Plaintiff received treatment for his sleep apnea at the November 26, 2014 visit, Dr. Duntley explicitly acknowledged that he treated Plaintiff for his disabling conditions in the same visit.
Plaintiff argues that Defendant, "by changing the designation of pre-existing condition ... from ‘sleep apnea ’ to ‘cognitive dysfunction,’ ... attempted to create a new basis for finding a that [sic] pre-existing condition barred Plaintiff's claim." (ECF No. 59 at 7.) Dr. Woodruff identified Plaintiff's disabling conditions as including cognitive dysfunction, and Dr. Duntley explicitly stated that he treated Plaintiff for as much during the look-back period. No part of this sequence of events was influenced by Defendant.
Assuming, arguendo , that the various conditions for which Plaintiff received treatment as part of the November 26, 2014 visit were erroneously attributed to Plaintiff's sleep apnea, the outcome remains the same. The plan accounts for misdiagnoses in the pre-existing condition exclusion. (See AR at 96 (a pre-existing condition "is an injury or sickness, whether diagnosed or misdiagnosed , and any symptoms thereof ...." (some emphasis omitted)).) Ergo, Plaintiff still received treatment for his disabling conditions, regardless of whether they were properly attributed to his disabling diagnosis.
2. Fatty Liver Disease and Fibromyalgia
As an alternative theory, Plaintiff posits that the administrative record fails to show that he received treatment, at either the August 27, 2014 or November 26, 2014 visit, for his now-diagnosed conditions of fatty liver disease with mild metabolic encephalopathy or fibromyalgia. (See ECF No. 40 at 22 ("There are now two separate diagnoses for the cause of [Plaintiff's] disabling conditions: 1) fatty liver disease ...; and 2) fibromyalgia").) Plaintiff argues that because he was eventually diagnosed with fatty liver disease and fibromyalgia after filing for LTD benefits and because these ailments are connected to his disabling conditions, Defendant was obligated to demonstrate that Plaintiff was treated for these diagnoses during the look-back period to establish that his disabling condition was pre-existing. This is not so.
As a threshold matter, Plaintiff's argument in this regard is inconsistent with the remainder of his argument in support; while he asserts that fatty liver disease and fibromyalgia are the disabling conditions that must have been treated during the look-back period, he also relies on Dr. Woodruff's diagnosis of "extreme fatigue, muscle weakness, blackouts, and bilateral lower extremity joint pain" as his disabling diagnosis. (See ECF No. 40 at 21.) Plaintiff attempts to mold his disabling diagnosis into the shape that best suits whichever argument is presently advanced. Putting this inconsistency to one side, Plaintiff's theory remains unavailing because he erroneously assumes the existence of some degree of distinguishability between the conditions for which he was treated during the look-back period and those that rendered him disabled; ignores the plain language of the plan; and fails to appreciate the factual dissimilarities between his claim and the case law on which he relies. See Meyer v. UNUM Life Ins. Co. of Am. , 96 F. Supp. 3d 1234, 1249 (D. Kan. 2015) ("The case law analyzing preexisting condition limitations in ERISA polices is ‘highly dependent on the individualized fact scenarios.’ " (quoting Goetz v. Greater Ga. Life Ins. Co. , 649 F. Supp. 2d 802, 818–19 (E.D. Tenn. 2009) (collecting cases))).
To the extent the argument can be made that these conditions are symptoms of fatty liver disease and fibromyalgia, this actually supports the propriety of Defendant's determination. As is discussed more fully infra , the plan's pre-existing condition exclusion includes the treatment of symptoms. (See AR at 96 (a pre-existing condition "is an injury or sickness, whether diagnosed or misdiagnosed, and any symptoms thereof ...." (some emphasis omitted)).)
Plaintiff offers Fought v. UNUM Life Ins. Co. Of Am. , 379 F.3d 997 (10th Cir. 2004) (per curiam), abrogated in part on other grounds by Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 116, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) for the proposition that a disabling condition must be directly attributable to the preexisting condition before the exclusion of coverage can be applied. (ECF No. 40 at 16.) Plaintiff's logic is sound, but his application is flawed. The plaintiff in Fought had a pre-existing heart condition that required she have surgery and, as a result of complications stemming from the procedure, was subsequently afflicted with an infection that rendered her disabled. See Fought , 379 F.3d at 999-1001. The question for the Tenth Circuit was whether it was appropriate for Unum to have denied coverage under the theory that the infection was the result of the preexisting heart condition. The court described it as "a matter of where we draw the line on the chains of causation." Id. at 1009. The Fought court concluded that the plan's language with respect to pre-existing conditions did not reasonably apply to the attenuated chain of events relating to the plaintiff's heart condition and the disabling infection. Id. at 1015. In other words, the infection was insufficiently connected to the treatment the plaintiff received during the look-back period, which was confined to treatment of her heart condition.
In addition to Fought , Plaintiff offers Glista v. Unum Life Ins. Co. of Am. , 378 F.3d 113 (1st Cir. 2004) for the proposition that "[i]t is not sufficient simply to base the pre-existing determination on treatment for symptoms that are consistent with a pre-existing diagnosis." (ECF No. 40 at 17.) This was not the holding in Glista . In support of his theory, Plaintiff relies on language from the First Circuit, wherein the court concluded that the insurer failed to meet its evidentiary burden because there was "no clear and direct relationship" between the symptoms for which the plaintiff had received treatment during the look-back period and the condition that ultimately rendered him disabled. (Id. (citing Glista , 378 F.3d at 126-27 ).) Plaintiff applies this same standard in his opening brief. (See id. ) Noticeably absent from Plaintiff's argument in this instance is any mention of how the First Circuit came to apply this "clear and direct relationship" standard. Far from crafting the standard on its own or couching it in some bedrock principle of judicial review of ERISA claims, the Glista court obtained this standard from one of the defendant's internal reference tools that its claim reviewers were able to use in their review process. See Glista , 378 F.3d at 126-27 (applying the clear and direct relationship standard to the plaintiff's claim); see also id. at 120 (describing the computerized reference tool). More egregious is that the obverse of the First Circuit's conclusion – which was that there was no clear and direct relationship between the symptoms treated during the look-back period and those attributable to the disabling condition – is that were the symptoms treated during the look-back period found to be related to the disabling condition, the insurer's denial would have been proper. Thus, Plaintiff's interpretation of Glista flies in the face of the First Circuit's holding.
Plaintiff incorrectly identifies Glista as a case from the Tenth Circuit. (See ECF No. 40 at 17.)
Plaintiff is correct that the First Circuit rejected the Glista defendant's argument that the plaintiff had received treatment for the same symptoms during the look-back period, (see ECF No. 40 at 17); however, the court did not do so because the defendant's argument was flawed in principle. Rather, the First Circuit found the facts not to support the defendant's position.
While Plaintiff's interpretation and the standard applied by the First Circuit in Glista are of little use in the Court's review, the factual analysis performed by the Glista court proves instructive. As discussed above, the question before the First Circuit in Glista was whether the treatment the plaintiff received during the look-back period was related to his disabling condition. The plaintiff's disabling condition in Glista was primary lateral sclerosis ("PLS"), and the defendant took the position that the plaintiff received treatment "during the pre-existing time period for the same symptoms, which ultimately led to his diagnosis of [PLS]." Id. at 119 (internal quotation marks omitted). In rejecting the defendant's argument, the First Circuit examined the record before it and found that the symptoms addressed during the look-back period were not related to PLS, but rather, were connected to radiculopathy. In other words, the plaintiff received treatment for a different malady with different symptoms during the look-back period. The court went on to explain that the only symptom even associated with PLS that was noted during the exclusionary period was never addressed or treated and, therefore, did not "constitute a ‘plan or course of action’ for arriving at a diagnosis of PLS." Id. at 126-27.
Here, Plaintiff makes no effort to distinguish the symptoms for which he received treatment during the look-back period from those associated with fatty liver disease and fibromyalgia. While the Glista court was not confronted with a situation wherein the symptoms addressed during the look-back period were the same as those that attributable to the disabling condition, a decision from a sister court in this circuit illuminates the discussion.
In McNeal v. Frontier AG, Inc. , 998 F. Supp. 2d 1037 (D. Kan. 2014), the ERISA plan contained the following pre-existing condition exclusion:
A ‘pre-existing condition’ means an injury, sickness, pregnancy, symptom or physical finding, or any related injury, sickness pregnancy, symptom or physical finding, for which you:
• consulted with or received advice from a licensed medical or dental practitioner, or
• received medical or dental care, treatment, or services, including taking drugs, medicine, insulin, or similar substances
during the 3 months that end on the day before you became insured under the long term disability insurance policy.
998 F. Supp. 2d at 1040. The plaintiff in McNeal was denied coverage on the basis that he had received treatment for his disabling condition during the 3-month look-back period. Id. The symptoms with which the plaintiff was afflicted were severe leg and back pain. Id. Initially, these symptoms were diagnosed as caused by peripheral artery disease and treated accordingly. Id. This treatment proved unsuccessful. Id. At some point after the end of the 3-month pre-coverage period, a diagnosis of spinal stenosis was made, and the plaintiff began to receive treatment for these conditions. Id. In its summary of the administrative record, the McNeal court explained that:
The administrative record shows that plaintiff reported symptoms of bilateral leg and back pain (among other non-disabling conditions) in January, February and early March 2010. This falls in the three-month period ending before plaintiff became insured .... The same symptoms continued month by month through the end of plaintiff's employment. This leg and back pain was initially considered a symptom of peripheral vascular disease. By August or September 2010, a diagnosis of spinal stenosis was considered. This diagnosis was more or less confirmed in early October 2010. It is the condition which plaintiff claims has disabled him from work.
Id. at 1042. In like manner to Plaintiff's theory with respect to his diagnoses of fibromyalgia and fatty liver disease, the plaintiff in McNeal argued "the diagnosis of spinal stenosis did not arise until after he was eligible for long-term disability benefits." Id. In rejecting the plaintiff's position and affirming the defendant's denial of coverage, the McNeal court explained that the plaintiff's argument "conflate[d] ‘diagnosis’ with ‘symptoms.’ Under the terms of the policy a ‘pre-existing condition’ [wa]s defined to include ‘symptoms’ or ‘physical findings’ which cause disability. The ‘symptoms’ in this case were the bilateral leg and back pain which were regularly documented in medical records from January 2010 through September 2010." Id.
Despite the fact that the standard of review in McNeal was more deferential than here, the same outcome must be reached. The plan contains a "symptoms" provision in its pre-existing condition exclusion, (see AR at 96 ("A pre-existing condition is an injury or sickness, whether diagnosed or misdiagnosed, and any symptoms thereof ...." (some emphasis omitted))), and the administrative record evidences no distinction between the symptoms stemming from cognitive dysfunction and the maladies identified in Dr. Woodruff's original disabling diagnosis – all of which Dr. Duntley treated during the look-back period – and those now attributed to fibromyalgia and fatty liver disease. Ergo, unlike the disabling conditions in Fought and Glista , fatty liver disease and fibromyalgia are not, whether taken separately or in combination, a distinct source of Plaintiff's disabling conditions with separate symptoms. B. Status as Disabled
Plaintiff also offers Lawson ex rel. Lawson v. Fortis Ins. Co. , 301 F.3d 159 (3d Cir. 2002) in support of his theory that the connection Defendant drew between his treatment during the look-back period and his disabling conditions was improper. (ECF No. 40 at 17-19.) In like manner to Plaintiff's other proffered case law, his argument in this regard misses its mark. As is now apparent, Plaintiff's arguments are, in large part, tethered to overgeneralizations or his ignorance of the factual nuances of the case law on which he relies.
While Lawson addressed the applicability of a pre-existing condition exclusion to coverage, the core of that case was whether the language of the exclusion was ambiguous. See Lawson , 301 F.3d at 163 (explaining that the Third Circuit's review concerned the District Court's conclusion that the policy term was ambiguous), 165 (discussing the ambiguity in the policy language), 166 (same), 167 (same). Nowhere in Plaintiff's filings is there any assertion that the plan's pre-existing condition exclusion is ambiguous. This alone alters the landscape of the discussion such that no comparison can be drawn. The dissimilarities between Lawson and the matter at bar do not end there. In similar fashion to Fought and Glista – and unlike here – the sickness in Lawson was undisputed and readily distinguishable from the treatment rendered during the pre-coverage period. The plaintiff in Lawson received treatment for an upper respiratory tract infection and, after the coverage began, was subsequently diagnosed with leukemia. Id. at 161. Additionally, the language of the exclusion at issue in Lawson and the one contained in the plan differ substantially. Noticeably absent from the Lawson pre-existing condition policy language are the plan's "misdiagnosis" and "symptoms" provisions. Compare id., with (AR at 96.) With this in mind, review of the Third Circuit's discussion of the crux of Lawson makes clear that any attempt to foist the holding of that case onto the matter at bar is inapposite. See Lawson , 301 F.3d at 162 ("The central issue in this case is whether receiving treatment for the symptoms of an unsuspected or misdiagnosed condition prior to the effective date of coverage makes the condition a pre-existing one under the terms of the insurance policy.").
In a last ditch effort to link Lawson to the matter now pending, Plaintiff directs the Court to the slippery slope argument referenced in dicta in that case. (See ECF No. 40 at 19 (quoting Lawson , 301 F.3d at 166 ).) The relevant portion of Lawson states:
Although we base our decision on the language of the policy, we note that considering treatment for symptoms of a not-yet-diagnosed condition as equivalent to treatment of the underlying condition ultimately diagnosed might open the door for insurance companies to deny coverage for any condition the symptoms of which were treated during the exclusionary period.
Lawson , 301 F.3d at 166. While this argument holds water to the extent that there exist scenarios wherein an insurer could argue that any condition for which an insured sought treatment during the look-back period was connected to a later-diagnosed disabling condition, the facts of this case do not present such a situation. Rather, here, Dr. Duntley stated that he treated Plaintiff for his disabling conditions at the November 26, 2014 visit. Understanding that Plaintiff fails to distinguish his now-diagnosed conditions from those treated during the look-back period and that the administrative records fails to evidence any difference, the question presented is not whether these maladies were connected to a separate disabling diagnosis, because the ailments for which he received treatment were the disabling conditions.
In addition to Lawson , Plaintiff relies heavily on McLeod v. Hartford Life & Acc. Ins. Co. , 372 F.3d 618 (3d Cir. 2004). (See ECF No. 40 at 19-20; ECF No. 59 at 7-9.) The decision in McLeod was anchored to the Third Circuit's reasoning in Lawson . See McLeod , 372 F.3d at 620. Understanding that the Court finds Lawson inapplicable here, McLeod is of no additional use. The McLeod court made much of the fact that a symptom in the abstract has no import and must be connected to something else and found support for its decision in the similarity of the plan language at issue and that of Lawson . Id. at 627. In McLeod , the symptom treated during the look-back period was numbness in the plaintiff's left arm and the disabling diagnosis was multiple sclerosis. Id. at 620-21. Importantly, and in like manner to the Lawson plan, the plan at issue in McLeod did not contain a misdiagnosis provision. See id. at 621. The Third Circuit concluded that: "we are confident that McLeod's case is one either of ‘misdiagnosis’ or of ‘unsuspected condition manifesting non-specific symptoms’ rather than a ‘suspected condition without a confirmatory diagnosis.’ Id. at 628. Any application of McLeod to Plaintiff's claim is nugatory.
The Court finds the matter at bar more akin to McNeal , and to the extent McLeod is at odds with McNeal , the Court will follow the law as applied in this circuit.
Plaintiff's argument with respect to his status as disabled is premised on a misinterpretation of the final denial letter. (See ECF No. 40 at 22-27 (citing and quoting various portions of the final denial letter).) Plaintiff contends that Defendant erred when it failed to find him disabled as a result of his cognitive symptoms, syncope, pain, and headaches. (Id. at 22.) In support of this theory, Plaintiff cites to various portions of the final denial letter and asserts that
[t]he medical records provided to Defendant show that Plaintiff's physical pain and syncopal episodes were severe enough to be treated with prescription pain medication, and were inextricably linked with his other cognitive symptoms if not also independently disabling in light of the mental and cognitive demands of his employment position. The medical records also show that headaches were reported as a symptom from the time Plaintiff first became disabled.
(Id. at 23.) Because Plaintiff's argument is, at bottom, that he was disabled, he bears the burden in this instance. See Rasenack , 585 F.3d at 1319 ("the insured has the burden of showing that a covered loss has occurred").
In similar fashion to the second denial letter, the final denial letter contains, inter alia , summaries of the MPP reviewers' March 24, 2016 opinions. (See AR at 524-27.) As noted at the outset, those opinions addressed two overarching issues: 1) Plaintiff's status as disabled; and 2) treatment rendered during the look-back period. (See id. at 498-511.) Of import here is that while both reviewers devoted substantial attention to whether Plaintiff's maladies rendered him disabled – which they answered in the negative – and Defendant included these portions of the opinions in both the second and final denial letters, Defendant did not rely on the MPP reviewers' March 24, 2016 position on disability in its rejection of Plaintiff's LTD claim. The second denial letter makes clear that Defendant, at that stage of the administrative process, relied entirely on the pre-existing condition exclusion to coverage. (See id. at 512, 516, 518.) In like manner, the final denial letter rejected Plaintiff's claim because his conditions were pre-existing, save his diagnosis of syncope, which Defendant found not to be disabling based on Dr. Kitei's July 22, 2016 supplemental opinion, and the issue of headaches, which Defendant found to be not originally raised as a disabling diagnosis. (See id. at 529 ("Based on the medical records and the Peer Review Panel, there is documentation that supports during the [look-back period] that you were treated for the diagnosis of OSA, Sleep apnea, Depression, Restless Leg Syndrome and Cognitive Dysfunction which was the condition which you have claimed disabling as of your last day worked"), 531 ("Based upon [Dr. Kitei's] addendum to the Peer Panel Review, we have determined that the diagnosis of Syncope was not treated during the [look-back period], but that there is not sufficient evidence of functional impairments from the diagnosis of Syncope and headaches which are of sufficient intensity to preclude him from performing his own occupation").) Comparison of the two denial letters reveals that the first seven pages of the documents – the portions discussing Plaintiff's pre-existing conditions – are identical. (Compare id. at 512-18, with id. at 523-29.) Far from clearing the slate and addressing Plaintiff's disability claim anew, Defendant, in its final review, addressed the specific objections raised in Plaintiff's request for reconsideration, which were constrained to headaches and syncope. (See id. at 2099-2100.) Where Plaintiff's argument stumbles is that the specific portions of the final denial letter on which he relies are the MPP reviewers' March 24, 2016 opinions on disability, not Dr. Kitei's July 22, 2016 supplemental opinion.
1. Consistency of Opinion
Under his mistaken interpretation of the final denial letter, Plaintiff argues that
Defendant arbitrarily decided that the only diagnosis it was going to pay attention to was the ‘diagnosis’ of cognitive difficulties and ignored Plaintiff's chronic pain, headaches, syncope and fatty liver disease. When confronted with its failure to address these other medical issues, Defendant simply changed trains and conveniently hopped from the ‘pre-existing’ exclusion to an unsupported conclusion that Plaintiff's other conditions were not disabling.
(ECF No. 40 at 25.) Given that the only additional conclusions offered in the final denial letter pertained to Plaintiff's headaches and syncope, his argument in this instance is inapposite. Moreover, assuming, arguendo , that Plaintiff's interpretation of Defendant's course of conduct is accurate, his theory remains wholly unsupported. Review of the case law on which Plaintiff relies makes clear that his efforts are, at best, misguided. He offers Spradley v. Owens-Illinois Hourly Employees Welfare Ben. Plan , 686 F.3d 1135 (10th Cir. 2012) and Pub. Serv. Co. of Colorado v. Wallis & Companies , 955 P.2d 564, 571 (Colo. App. 1997), as modified on denial of reh'g (Oct. 2, 1997), rev'd , 986 P.2d 924 (Colo. 1999) in support of his theory that Defendant was not permitted to "change trains" in its basis for denial. (See ECF No. 40 at 25-26.) In Spradley , the Tenth Circuit admonished the Defendant for attempting to rely on a different theory to deny the plaintiff's ERISA claim during the pending litigation than it had during the administrative review process. 686 F.3d at 1139-41. In similar fashion, Wallis concerned an insurer's attempt to assert a defense at trial and whether the defense had been waived by the defendant's failure to raise it in a preliminary letter sent to the plaintiff. 955 P.2d at 571. Neither case is germane to an ERISA insurer's administrative review of LTD claims. The Court rejects Plaintiff's argument with respect to the alleged inconsistency of Defendant's reasoning.
Notably, Wallis pertained to liability for costs associated with environmental cleanup resulting from contamination of several of the insured's sites and was in no way related to the ERISA administrative review process. 955 P.2d at 566.
2. Headaches and Syncope
In his June 15, 2015 request for reconsideration of Defendant's second denial of LTD benefits, Plaintiff argued that Defendant's conclusion was incomplete because it failed to account for his headaches and recurring episodes of syncope, which he described as "two of the most disabling symptoms [he] has been experiencing." (AR at 2099-2100.) In response, Defendant determined that the diagnosis of headaches had not been mentioned in either the initial LTD review or appeal. (Id. at 530.) As a result, Defendant confined its subsequent review to Plaintiff's diagnosis of syncope, and Plaintiff's claim file was referred to Dr. Kitei for a supplemental opinion. (Id. ) On August 26, 2016, Defendant issued the final denial letter explaining that it had concluded that Plaintiff's "diagnosis of Syncope did not support the restrictions and limitations to prevent him from being able to perform his own occupation as defined by the Group Policy." (Id. at 531.)
According to Plaintiff, "[t]he medical records ... show that headaches were reported as a symptom from the time [he] first became disabled." (ECF No. 40 at 23.) This is true; however, report of a symptom is far from equivalent to a disabling diagnosis. The final denial letter states that "the diagnosis of headaches [was] not previously mentioned in either the initial LTD claim review or in our appeal review as a disabling diagnosis ." (AR at 530.) That Plaintiff now asserts that the record evidences headaches as one of his symptoms in no way controverts Defendant's position. Plaintiff cites to various records of treatment wherein he reported headaches as early as April of 2015. (ECF No. at 23-24.) Nowhere in any of the records on which Plaintiff relies is there a diagnosis specifically for headaches or any discussion of limitations resulting therefrom. Rather, Plaintiff's physicians, in their discussion of his headaches, describe them as "neurological symptoms" or "neurocognitive symptoms." (AR at 390.) That Plaintiff has chosen headaches from the multitude of other cognitive issues with which he was afflicted does not make headaches a separate disabling diagnosis. Defendant's denial letters make clear that it considered Plaintiff's cognitive issues – which included headaches – throughout the administrative review process. It is unreasonable for Plaintiff to assert that Defendant should have addressed the issue of headaches with such specificity when his own physicians chose not to do so. Indeed, none of Dr. Woodruff's opinions with regard to disability identify headaches as a cause of disability. Understanding this, it becomes apparent that Plaintiff's headaches are more akin to his dizziness, confusion, or balance issues – all of which were reported as issues with which he was afflicted as a result of his condition, but none were found to be a separate disabling diagnosis. Plaintiff has failed to demonstrate any error on Defendant's part with respect to its consideration of his headaches or that his headaches rendered him disabled.
Further illustration of the flaw in Plaintiff's argument is found when syncope and headaches are compared. While Plaintiff, in his request for reconsideration, identified both ailments as "symptoms and/or conditions," (id. at 2099), the record makes clear that unlike headaches, syncope was specifically identified and diagnosed as a disabling malady. (See id. at 490 (Dr. Woodruff's September 21, 2015 opinion explaining that "recent evaluations have identified mild cognitive dysfunction, fatty liver disease, exercise intolerance and syncope ; all of which interfere with [Plaintiff's] ability to work effectively at this time.").) Upon receipt of Plaintiff's request for reconsideration, Defendant, after determining that syncope had not been treated during the look-back period, resubmitted the matter to Dr. Kitei for a supplemental opinion. Thus, when confronted with a diagnosis that was separate and apart from the November 26, 2014 treatment rendered by Dr. Duntley, Defendant sought additional clarification on the matter. No such action was required with respect to Plaintiff's claim in relation to his headaches.
As for Defendant's conclusion with respect to syncope, to the extent Plaintiff contends that he was rendered disabled as a result of said ailment, he fails to develop adequately this theory. He points to no portion of the medical record that supports this alternative conclusion. Moreover, Plaintiff's own treating physician, Dr. Woodruff, agreed with Dr. Kitei's conclusion that syncope would result in some restrictions but otherwise would not equate to disability. (See id. at 2230, 2233.) This is the same conclusion reached by Defendant in the final denial letter.
3. Physical Pain
In an effort to uproot Defendant's final determination, Plaintiff posits that Defendant erred when it concluded that Plaintiff's "issues with diffuse musculoskeletal pain were not ... seemingly so severe or so profound that they required usage of analgesic medications on a consistent basis" and that "[t]he information on file, in short, does not support the proposition that [Plaintiff] had or has any significant or pronounced impairment associated with diffuse bodily pain complaints/diffuse musculoskeletal pain ...." (See ECF No. 40 at 22-23 (citing AR at 526).)
The portions of the final denial letter with which Plaintiff takes issue in this instance are quotes pulled from Dr. Ayyar's March 24, 2016 MPP review report. (Compare AR at 526, with id. at 503-04.) As has been made abundantly clear, this was not the basis of any of Defendant's denials. Regardless, for Plaintiff's argument with respect to his chronic pain to hold water, he must be able to distinguish it from the pain referenced in Dr. Woodruff's original diagnosis, which included muscle weakness and bilateral extremity joint pain, (id. at 488), and from any pain attributable to his cognitive dysfunction. The administrative record does not support such a conclusion.
4. Occupational Requirements
Interspersed in Plaintiff's argument are qualms about Defendant's consideration of the specific requirements of his position. He asserts that the capabilities evaluation that was provided to Dr. Woodruff failed to account for the mental components of his position and was improperly limited to his physical capabilities. (ECF No. 40 at 26-27.) Beyond his general disagreement with the form provided to Dr. Woodruff, Plaintiff fails to develop this argument or demonstrate any inadequacy in Defendant's review. In this same vein, Plaintiff makes much of the fact that his condition left him unable to drive. (Id. at 24, 27.) He contends that "Plaintiff was restricted from driving which in itself prevented him from traveling and presents a major obstacle to a job which involves sales and attendance at trade shows." (Id. at 27.) This argument falters in the starting blocks. Nowhere in the job description for Plaintiff's position is there any mention of driving as a requirement, (see AR at 2255-56), and beyond his bald statement in his brief, Plaintiff provides no support for this alleged aspect of his work. Without more, Plaintiff's arguments with respect to the requirements of his position are untenable.
Plaintiff's reliance on Morrison v. PNC Fin. Servs. Grp., Inc. , No. CIV.A. 13-804 JEI, 2015 WL 1471865 (D.N.J. Mar. 31, 2015) is of no moment in the Court's review. In Morrison , the plaintiff had, at the administrative level, contested the job description applied by the defendant, and the court, relying on an occupational resource cited by both parties, found that the defendant had erred in its occupational analysis when it applied a lower-stress position. 2015 WL 1471865, at *9. Here, Plaintiff simply relies on his opinion of the form that was provided to Dr. Woodruff.
VI. CONCLUSION
After review of the administrative record and the parties' filings in support of and opposition to the motion for a determination, the Court finds that Defendant The Guardian Life Insurance Company of America did not err in determining that Plaintiff Philip Brian Goodman was not entitled to LTD benefits. In accordance with this conclusion, Defendant's LTD claim decision is AFFIRMED. Additionally, as set forth above, Defendant's motion to strike (ECF No. 61) is GRANTED. Judgment shall enter in favor of Defendant. The Clerk is directed to close this case.