Opinion
Case No. 01-4133-JAR.
October 12, 2004
MEMORANDUM ORDER AND OPINION DENYING MOTION TO ALTER OR AMEND, MOTION FOR HEARING AND MOTION FOR ATTORNEY'S FEES
This matter comes before the Court on plaintiff Edgar Ransdell's Motion to Alter or Amend (Doc. 103) and Motion for Hearing (Doc. 104). Plaintiff asks the Court to alter or amend its Order of August 9, 2004, granting summary judgment to defendant Continental Casualty Company (Continental) and seeks a hearing on the same. For the reasons stated below, both motions are denied.
I. Motion for Hearing
Pursuant to D. Kan. Rule 7.2, "[r]equests for oral arguments on motions shall be granted only at the discretion of the Court." If the Court chooses not to hold a hearing, "motions shall be submitted and determined on the written memoranda of the parties." Because the Court finds that oral argument will not be of material assistance and that the motion to alter or amend may be resolved based upon the parties' written submissions, the motion for hearing is denied.
D. Kan. R. 7.2.
II. Motion to Alter or Amend
A. Legal Standard
Plaintiff urges the Court to alter or amend its ruling of August 9, 2004, granting Continental's summary judgment motion on plaintiff's disability benefits claim. A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. A losing party should not use a motion for reconsideration as a vehicle to rehash arguments previously considered and rejected. Nor does a party's failure to present its strongest case in the first instance entitle it to a second chance in the form of a motion for reconsideration. The decision to grant or deny a motion for reconsideration is committed to a court's discretion.
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994).
Sac Fox Nation of Missouri v. LaFaver, 993 F. Supp. 1374, 1375-76 (D. Kan. 1998).
Hancock v. City of Oklahoma, 857 F.2d 1394, 1395 (10th Cir. 1988).
B. Analysis
Plaintiffs seeks reconsideration on the basis that the Court has committed clear error. Plaintiff argues that District of Kansas Rule 56.1 does not apply in an ERISA case with a de novo standard of review; that the Court applied the wrong definition of "totally disabled"; and that the Court erred in determining that objective evidence supported a finding that plaintiff was not totally disabled under the terms of the Long Term Disability Plan (the Plan).
1. District of Kansas Rule 56.1
In its Order granting summary judgment to Continental, the Court noted that "plaintiff has failed to comply with the local rules which govern the summary judgment process." The Court additionally observed that:
Plaintiff has not even attempted to controvert Continental's eighty-four factual contentions as required by Rule 56.1. Nor has plaintiff presented any additional factual contentions in separately numbered paragraphs; instead, plaintiff has presented a narrative with references to the record interspersed throughout. The Court will not sift through plaintiff's lengthy narrative in an attempt to identify controverted facts.
Thus, the Court concluded that certain "facts contained in defendant's summary judgment memorandum and which find support in the record, are uncontroverted." Additionally, the Court noted that most of the "facts" contained throughout plaintiff's response were irrelevant as the facts referenced evidence outside of the administrative record, and plaintiff had not shown that exceptional circumstances existed to expand the record.
Plaintiff argues that on a de novo standard of review, a "Statement of Facts" is largely irrelevant. Plaintiff cites no authority for the proposition that in the context of an ERISA case, parties are excused from complying with local rules. Indeed, Rule 56.1 refers to all memoranda in support of summary judgment motions, and does not specifically exempt ERISA cases. In its independent review of the case law, the Court has uncovered no cases suggesting that Rule 56.1 is inapplicable to ERISA cases on a de novo review. To the contrary, this Court has applied Rule 56.1 in precisely this context. In Carland v. Metropolitan Life Insurance Company, this Court determined that "since none of the facts alleged by the plaintiff in her summary judgment motion are controverted by the defendant, they are deemed admitted under D. Kan. Rule 206(c) [now renumbered as D. Kan. Rule 56.1]." The decision to deem facts admitted was made even though, in its review of the decision to deny benefits, the Court utilized the de novo standard.
Carland v. Metro. Life Ins. Co., 727 F. Supp. 592 (D. Kan. 1989), aff'd by 935 F.2d 1114 (10th Cir. 1991).
Id. at 594.
Id. at 598.
More recently in an ERISA case, albeit not in the context of a de novo review, the Tenth Circuit approved a district court decision to deem facts not properly controverted as admitted pursuant to Rule 56.1. The court noted that such a sanction was appropriate, especially considering that the "defendant's recitation of the facts . . . was highly inclusive and complete, containing references to facts supporting its position, but also reference to evidence that tended to show [plaintiff] had long suffered from one or more disabilities. The Tenth Circuit approved the court's evidentiary ruling notwithstanding plaintiff's pro se status. Similarly, in this case Continental's facts were highly inclusive and complete and referred to all the available medical evidence. Moreover, the Court notes that plaintiff was aided by counsel in preparing his summary judgment response.
Wagner-Harding v. Farmland Indus. Inc. Employee Ret. Plan, 26 Fed. Appx. 811, 814-15, 2001 WL 1564041 at *3 (10th Cir. 2001) (unpublished case).
Id.
To the extent plaintiff is actually suggesting that a summary judgment motion is inappropriate in the context of a de novo review of a decision to deny benefits, this suggestion similarly fails. Plaintiff cites no authority for this proposition. Furthermore, courts have routinely entertained motions for summary judgment in this context.
See, e.g., Capital Cities/ABC, Inc. v. Ratcliff, 141 F.3d 1405 (10th Cir. 1998); Johnson v. Enron Corp., 906 F.2d 1234 (8th Cir. 1990); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir. 1996); Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109 (9th Cir. 2001); Sharkey v. Ultramar Energy Ltd., 70 F.3d 226 (2d Cir. 1995).
The Court additionally observes that plaintiff neglected to mention this special "rule" for ERISA cases in his response to defendant's summary judgment motion. Instead, he merely ignored Continental's lengthy statement of facts, and then, in his motion to alter or amend, suggested that the Court erred in applying Rule 56.1. The Court considers plaintiff's argument particularly disingenuous because in his motion seeking reconsideration he sets forth, for the first time, his own "Summary of the Administrative Record." That plaintiff obtained new counsel who has now attempted to present controverted facts in the spirit of Rule 56.1 is of no consequence; it is settled that a motion to reconsider is not a second chance for a party to present his strongest case.
Furthermore, in the Court's view, plaintiff's mistake was not that he failed to properly respond to Continental's statement of facts, but that he failed to advance any arguments which would support a finding of total disability under the Plan. Even if the Court had not deemed all defendant's facts as uncontroverted pursuant to the local rules, plaintiff still would not have prevailed. Plaintiff apparently expected the Court not only to review the administrative record, but additionally, in its review of the record, to create arguments for plaintiff. Even in the context of a pro se plaintiff, a Court is not authorized to become an advocate for a plaintiff. Surely here, where plaintiff was represented by counsel the Court could not properly have invented arguments beneficial to plaintiff.
See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.").
In its prior Order, the Court also stated that it considered the entire administrative record as it was required to do in conducting a de novo review of Continental's decision to deny plaintiff long term disability benefits. Indeed, after concluding that its review would be limited to the administrative record, the Court nevertheless addressed plaintiff's arguments supported only by evidence outside the administrative record before ultimately concluding that there were no genuine issues of material fact and thus, that summary judgment was proper.
2. Definition of Disability
Plaintiff contends that this Court too erred in interpreting the Plan's definition of disability. The definition of disability under the terms of the Plan includes:
You are considered disabled and eligible for benefits if, due to an accident or sickness which causes loss commencing while your coverage is in force, you are unable . . . to perform each of the material duties pertaining to your specialty in the practice of medicine (for doctors) . . . or to perform all the material duties of your regular specialty (for doctors) . . . on a full time basis, but are
a. performing at least one of the material duties of your regular specialty/occupation or another occupation on a part-time or full-time basis, and
b. are currently earning less than 80% per month of your pre-disability earnings due to that same injury or sickness. If you are disabled, you must be under the care of a doctor other than yourself.
The Plan also provided for an elimination period of 180 days, during which time a Plan participant must remain totally disabled before benefits are payable.
In his motion to alter or amend, plaintiff argues for the first time that "`each of the material duties' meant that if a person cannot perform one of the material duties, then he is disabled." At the outset, the Court notes that a motion to alter or amend is not the proper stage to first contest the meaning of totally disabled under the Plan. Plaintiff could have raised this argument in his response, but chose not to; thus, the Court need not even consider this argument on a motion seeking reconsideration.
Notwithstanding, the Court notes that plaintiff's characterization of the definition of "totally disabled" would render the difference between total and partial disability under the Plan meaningless. In addition, courts interpreting similar definitions of total disability have flatly disagreed with plaintiff's contention. For instance, in Carr v. Reliance Standard Life Insurance Company, the court was confronted with the following definition of total disability: a claimant "who cannot perform each and every material duty of his/her regular occupation" during the elimination period. Plaintiff argued that the definition meant that a claimant "who, during the Elimination Period, is unable to perform one or more of the material duties of his/her regular occupation — even on a part-time basis — will be deemed totally disabled." The court disagreed, concluding that "if a claimant can perform even one material duty of his regular occupation during the Elimination Period, he is not totally disabled." Similarly, in this case, the plain language of the Plan belies plaintiff's suggested meaning of "totally disabled."
363 F.3d 604 (6th Cir. 2004).
Id. at 607.
Id. at 606-07.
Id. 607.
Plaintiff also argues that the Court is working with the incorrect definition of disability because the Court's Order addressed whether plaintiff was disabled from working as an obstetrician and as a gynecologist, thereby conflating plaintiff's work as a gynecologist with his work as an obstetrician. But, it is actually plaintiff who has advanced confusing and conflated arguments concerning when, and from what occupation, he considers himself disabled. For instance, in plaintiff's response to the summary judgment motion he originally contended:
Throughout this entire process the plaintiff has consistently and openly informed everyone, including the defendant, that although he was working on a reduced basis[,] he was planning on totally terminating his practice at the end of October 1998 due to the pains and problems he was experiencing during his practice of medicine." This is the period of time from which the plaintiff is claiming disability benefits, and the plaintiff is not now nor has he ever claimed that he was disabled or entitled to benefits for any period prior to November 1, 1998.
Plaintiff stopped working as an obstetrician in November 1997, but continued his work as a gynecologist until October 28, 1998. Plaintiff's suggestion that he was not claiming disability until November 1, 1998 thus implies that plaintiff was claiming total disability from working as an obstetrician-gynecologist. The record reveals that plaintiff himself stated that he was claiming disability from his "medical specialty (OB-Gyn)."
However, in his motion to alter or amend, plaintiff advances that he was totally disabled from performing the material duties of an obstetrician in his speciality of obstetrics-gynecology. Plaintiff argues that he was disabled in March 1998, when he filed his claim for disability. But, this argument flatly conflicts with his earlier summary judgment response that he was not claiming disability until November 1, 1998. Thus, plaintiff has advanced conflicting arguments as to when he was disabled and what occupation from which he was disabled; he has on one hand alleged that he was disabled from his work as an obstetrician-gynecologist in November 1998, yet on the other hand claimed disability from his duties as a obstetrician in March 1998. Because plaintiff's summary judgment response was likewise confusing, the Court, out of an abundance of caution, attempted a comprehensive analysis of plaintiff's disability claim before finally concluding that plaintiff was neither disabled in March 1998 from working as an obstetrician, nor in November 1998 from working as an obstetrician-gynecologist.
3. Objective Medical Evidence
Lastly, plaintiff argues that the record lacks objective medical evidence from which one could conclude that he was totally disabled from performing the material duties of an obstetrician. The Court observes that plaintiff originally contended that he was totally disabled from performing the material duties of an obstetrician-gynecologist. Thus, the Court will address plaintiff's claimed disability from his occupation as a obstetrician in March 1998 and his claimed disability from his obstetrical-gynecological work in November 1998.
a. Totally disabled from work as an obstetrician in March 1998
Plaintiff's argument that he was totally disabled from performing each of his material duties as an obstetrician is improper in the context of a Rule 59(e) motion to alter or amend. Plaintiff clearly could have raised this argument in his original response, but instead proffered a conflicting account of his alleged disability. Nevertheless, out of an abundance of caution, the Court will address plaintiff's contention.
Plaintiff alleges in his motion to alter or amend that the objective evidence suggests that he was unable to perform the duties of an obstetrician in March 1998. He argues that the Court erred in assuming that because plaintiff was still working as a gynecologist in early 1998 and because the duties of a gynecologist and obstetrician overlap, that plaintiff was not totally disabled from working as an obstetrician. To support this argument, plaintiff notes that his duties as an obstetrician differed significantly from his duties as a gynecologist. Plaintiff asserts that this contention is supported by the administrative record, but fails to refer the Court to any portion of the administrative record which supports this conclusion. More importantly, even if some of the duties of an obstetrician and gynecologist differ, this argument misses the point. The proper focus is not the duties of an obstetrician and gynecologist that differ, but rather those that are the same. To be totally disabled, plaintiff must have been unable to perform each of the material duties pertaining to his specialty. In other words, if the plaintiff could perform even one of the material duties pertaining to his work as an obstetrician, he would not be totally disabled.
The evidence clearly shows that plaintiff was capable of performing at least one, if not more of the material duties pertaining to his speciality; in fact he was performing some of these duties from March 30, 1998 to September 25, 1998, during the 180 day elimination period. By plaintiff's own admission, his daily activities at the time he filed his request for benefits included: one to four hours per day of surgery; two hours doing rounds in the hospitals, and six to eight hours in the clinic. In addition, in a telephone interview with Continental's Case Manager, plaintiff reported that as of June 9, 1998, he was conducting four to five surgeries per week. Plaintiff never suggested that conducting surgery and seeing patients were not material duties of his work as an obstetrician.
Moreover, the Court noted that the objective medical evidence did not support plaintiff's contention that he was totally disabled from working as an obstetrician during the elimination period. Dr. Baker, plaintiff's treating physician, saw plaintiff three months after he terminated his obstetrics practice, and diagnosed plaintiff as having spondylolisthesis with symptoms of back and leg pain. The limitations placed upon plaintiff included "standing, perineal flexion accentuate the pain (lumbar) with radiculopathy, [and] limited to minimal sustained lifting."
An additional physician's statement prepared by the MRI Center of Kansas indicated a diagnosis of radiculopathy of left leg due to Grade I spondylolisthesis at L4-5. The specific limitation imposed was "avoid standing for long periods of time" and the prognosis was "fair-Good." Dr. Peterson, who performed and reviewed plaintiff's MRI, was of the opinion that plaintiff had "degenerative disk disease, bulging of the disc and osteophyte formation which in conjunction with a Grade I spondylolisthesis causes mild central stenosis and moderate narrowing of the lateral recess on the left side at L4-5.
Continental requested that Dr. Pearson, a doctor not associated with it, conduct a peer review of plaintiff's medical records. Dr. Pearson reviewed all of plaintiff's available records and EZDOT reports discussing the occupational demands of an obstetrician and a gynecologist. He concluded that:
[A]t this point, I do believe that he would be capable of performance of all the activities of an obstetrician without any type of restrictions. If for any reason he would have any increased symptoms into his back, then I would limit how much standing he does, for no more than two hours at a time without a 15-20 minute break and if he has increased problems then I would limit any type of lifting to no more than 25-30 lbs. Otherwise I would not have any further recommendations or any further treatment.
Thus, the medical records suggest plaintiff had spondylolisthesis with mild central stenosis and some leg and back pain. The records also suggest, at most, that plaintiff was to limit his standing for long periods of time, and limit his sustained lifting. These records do not suggest that plaintiff was unable to perform each of the material duties of an obstetrician. Indeed, at no point does any physician opine that plaintiff was totally disabled from performing his duties. To the contrary, plaintiff was able to conduct four to five surgeries a week and work 12 hours a day even with this diagnosis.
Plaintiff stresses Dr. Delgado's diagnosis, made on September 10, 1998, that plaintiff was then suffering from "moderately severe spinal stenosis." The Court notes that this diagnosis, made only two weeks before the 180 day elimination period was to expire, does not support the contention that plaintiff was unable to perform each of the material duties of his profession during the entire elimination period. Although Dr. Delgado requested that plaintiff restrict his activities requiring prolonged walking; alternate sitting and standing every thirty minutes to one hour; avoid lifting in excess of twenty pounds; and avoid any bending or twisting, plaintiff has never argued that such restrictions prevent him from carrying out each of his duties as an obstetrician. Instead, plaintiff picks and chooses certain duties which may be difficult given these restrictions. But, as the Court has repeatedly emphasized, plaintiff is bound by the definition in the Plan; that he considered himself disabled is simply irrelevant.
Plaintiff additionally directs the Court to Dr. Delgado's follow-up report, which was dated July 11, 2000. Dr. Delgado recommended that plaintiff continue with his present limitations, and determined that plaintiff "is completely disabled from performing all work activities which are all in relation to the disease process which has been thoroughly evaluated and for which treatment is being rendered." Interestingly, July 11, 2000, is the first time Dr. Delgado ever opined that plaintiff was "completely disabled." The pertinent elimination period, however, was from March 30, 1998 to September 28, 1998; thus, Dr. Delgado's opinion that plaintiff was disabled in July of 2000 is immaterial. For plaintiff to receive long term disability benefits under the Plan, he must have been totally disabled during the entire elimination period. For the reasons previously discussed, the medical evidence reveals that plaintiff was not totally disabled.
Plaintiff also suggests that his pain was too severe to continue working as an obstetrician. However, the objective medical evidence shows that at the time plaintiff retired from obstetrics, he was merely taking ibuprofen for his pain, and doing some exercises on his own. On June 30, 1998, plaintiff told Continental's Case Manager that he was still taking ibuprofen, was not in physical therapy, and had not recently consulted a neurologist. Plaintiff did have a steroid injection in his back on March 23, 1998, and reported to Dr. Baker that his condition was "somewhat improved" following the injection. Therefore, the Court concludes that the objective medical evidence does not support plaintiff's contention that his pain was so severe that he was unable to perform each of the material duties of an obstetrician, particularly when he continued to treat gynecological patients.
Finally, the Court notes that a video surveillance of plaintiff obtained by Continental also casts doubt on plaintiff's claim of total disability. In the video, plaintiff is shown getting in and out of his car, entering his office, and fueling his car. Plaintiff appears to have no problems walking, bending over, or twisting to put fuel in his car.
With this summary of pertinent evidence in mind, plaintiff's claim that Continental's decision to deny him benefits, and the Court's prior Order were based only upon EZDOT reports classifying the duties of an obstetrician and a gynecologist as "light duty" is clearly erroneous. Continental considered the medical evidence as it repeatedly reiterated that plaintiff's claim was being denied in part because the medical evidence did not support a determination of total disability under the Plan. In analyzing plaintiff's duties and his claim of disability, the Court too considered not only the summaries provided by the EZDOT reports, but also plaintiff's own account of his day-to-day activities, and the objective medical evidence. And, the Court has conducted another review of the entire claim file in resolving this motion to alter its prior ruling.
In conclusion, the Court again finds that there are no genuine issues of material fact suggesting that plaintiff was totally disabled during the elimination period as defined by the Plan. This determination is based upon plaintiff's own actions, plaintiff's own account of his daily activities, plaintiff's medical records, video surveillance of plaintiff; as well as all other items contained in the administrative record. Because no issues of material fact exist, summary judgment was properly granted to defendant.
b. Totally disabled from work as an obstetrician-gynecologist in November 1998
This argument was previously raised in plaintiff's response, and it is unclear whether plaintiff seeks reconsideration of this ruling, as he is now advancing a contradictory position. However, the Court will address this argument nonetheless.
Plaintiff also argued in his response to defendant's summary judgment motion, apparently in the alternative, that he was not totally disabled until November 1998, and at that point, he was disabled from his speciality as an obstetrician-gynecologist. The Court has already soundly rejected this argument. In its prior Order, the Court noted:
To counter Continental's denial of benefits due to plaintiff's failure to qualify as totally disabled, plaintiff states that he never claimed he was disabled or entitled to benefits prior to November 1, 1998. But, plaintiff applied for disability benefits on March 30, 1998; his claim was denied in a letter dated July 15, 1998; the denial was appealed on September 10, 1998. Thus, plaintiff now states that he never claimed he was disabled before November 1, 1998, even though by that time, his claim had been processed, denied and appealed. Surely plaintiff could not have known on March 30, 1998, that he would be "unable to perform each of the material duties pertaining to [his] specialty," nearly six months later. In short, plaintiff's contentions are disingenuous.
Plaintiff has not provided any basis for the Court to reconsider this ruling. It is axiomatic that plaintiff could not have been disabled from his specialty of obstetrics-gynecology when he was practicing gynecology from March 30, 1998 until September 28, 1998 during the entire 180 day elimination period. IT IS THEREFORE ORDERED BY THE COURT that plaintiff's Motion to Alter or Amend (Doc. 103) is DENIED. IT IS FURTHER ORDERED BY THE COURT that plaintiff's Motion for Hearing (Doc. 104) is DENIED.
See, e.g., Carr, 363 F.3d at 607 (plaintiff was not disabled under a similar definition of total disability when he worked part-time during the elimination period).
IT IS SO ORDERED.