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Eastman v. The Prudential Ins. Co.: US District Court : ERISA - disability "due" in whole or part to mental illness; Social Security Disability benefit coordination

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________
KAROLYN EASTMAN,
Plaintiff,
v. MEMORANDUM OF LAW & ORDER
Civil File No. 06‐4123 (MJD/RLE)
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant.
________________________________________________________________
Mark G. Schneider, Mark G. Schneider, PLLC, and Paul R. Oppegard, Smith
Bakke Oppegard Porsborg Wolf, Counsel for Plaintiff.
Edna S. Bailey, Wilson Elser Moskowitz Edelman & Dicker, and Patrick H.
O’Neill, Jr., O’Neill & Murphy, LLP, Counsel for Defendant.
_________________________________________________________________
I. INTRODUCTION
This matter is before the Court on the parties’ cross‐motions for summary
judgment. [Docket Nos. 25, 29] Also before the Court is Defendant’s Motion to
Strike Portions of Plaintiff’s Reply Brief in Support of Her Motion for Summary
Judgment or, Alternatively, for Leave to File a Sur‐Reply. [Docket No. 48] The
Court heard oral argument on November 9, 2007.
II. BACKGROUND
2
A. General Background
Plaintiff Karolyn Eastman was employed from January 24, 1994, until
August 2, 2002, as a Senior Engineering Project Leader with Polaris Industries,
Inc. (“Polaris”) in Roseau, Minnesota. (Administrative Record (“AR”) 1050‐51.)
As part of her employment with Polaris, Plaintiff was provided long term
disability (“LTD”) coverage as part of an ERISA‐governed Employee Welfare
Benefits Plan (the “Policy”). Defendant The Prudential Insurance Company of
America (“Prudential”) underwrote Plaintiff’s LTD coverage pursuant to the
terms of Policy. (AR 17‐58) Polaris was the Plan sponsor and Plan administrator.
(Id. 51.) Prudential was the claims administrator and supplier of Plan benefits.
(Id. 52.)
B. The LTD Policy
Under the terms of the LTD Policy, Defendant, as claims administrator,
“has the sole discretion to interpret the terms of the Group Contract, to make
factual findings, and to determine eligibility for benefits. The decision of the
Claims Administrator shall not be overturned unless arbitrary and capricious.”
(AR 52.) Under the Policy, a claimant is disabled when
• you are unable to perform the material and substantial duties of
your regular occupation due to sickness or injury; and
• you have a 20% or more loss in your indexed monthly earnings due
to that sickness or injury.
3
After 24 months of payment, you are disabled when Prudential determines
that due to the same sickness or injury, you are unable to perform the
duties of any gainful occupation for which you are reasonably fitted by
education, training, or experience.
(AR 27.) Under the Policy, Eastman was required to provide proof of claim,
including “[t]he date your disability began;” “[a]ppropriate documentation of the
disabling disorder;” and “[t]he extent of your disability, including restrictions
and limitations preventing you from performing your regular occupation or
gainful occupation.” (Id. 41.) In addition, the Policy contains the following
limitation:
Disabilities which, as determined by Prudential, are due in whole or
part to mental illness have a limited pay period during your
lifetime.
The limited period for mental illness is 24 months during your
lifetime.
(AR 36.) Mental illness is defined as follows:
Mental illness means a psychiatric or psychological condition
regardless of cause. Mental illness includes but is not limited to
schizophrenia, depression, manic depressive or bipolar illness,
anxiety, somatization, substance related disorders and/or adjustment
disorders or other conditions. These conditions are usually treated
by a mental health provider or other qualified provider using
psychotherapy, psychotropic drugs or other similar methods of
treatment as standardly accepted in the practice of medicine.
(Id.)
Finally, the Policy affords Defendant the right to recover overpayments
4
due to receipt of deductible sources of income by the insured, such as disability
payments under the Social Security Act. (AR 31, 42.)
C. Plaintiff’s Illness and Her Policy’s Coverage
1. Prudential’s Initial Approval of Eastman’s LTD Claim
Beginning on August 2, 2002, Eastman began receiving short term
disability (“STD”) benefits, which lasted six months. (AR 89‐90.)
On February 5, 2003, Plaintiff applied for LTD benefits through Prudential.
(AR 1033‐54.) Plaintiff’s claim submission was supported by an Attending
Physician’s Statement completed by her primary care physician, Dr. Ralph
Herseth, M.D. (Id. 1041‐43.) Herseth diagnosed Plaintiff with major depression,
generalized anxiety disorder, and multiple physical symptoms secondary to her
mental disorders, including cognitive function difficulty, extreme fatigue,
multiple areas of myalgia, and severe insomnia. (Id. 1041, 1043.) Herseth opined
that Eastman retained medium level functional capacity. (Id. 1041.)
On March 6, 2003, Herseth recorded his impression that Eastman suffered
from “1. Major depression. 2. Panic disorder with agoraphobia. 3. Fibromyalgia”
and opined, “I think the component of fibromyalgia in this lady is a big factor; it
seems to really be disabling her.” (AR 931.)
On April 3, 2003, Josephine Malysz, RN, a psychiatric nurse, conducted a
clinical psychiatric review of Eastman’s file for Prudential. (AR 62‐63.) In her
5
analysis, Malysz found, in pertinent part:
A review of above documentation reveals the clmt experiencing
multiple stressors including Father/dementia, mother/serious illness,
new marriage, hx of severe domestic violence in previous marriage,
multiple health problems and a heavy work load when she
experienced an incident a[t] work that resulted in back pain and
caused [claimant to be out of work]. The clmt attempted a part time
rtw but was not able to handle it.
* * *
Both Dr. Herseth’s recent notes and the recent ov notes from the
therapist indicate the clmt has made progress in her psychiatric
condition and she is beginning to stabilize, the clmt con’t to
experience physical problems including fibromyalgia*which will
need further review by the clinical team.
* * *
As of 2/02 the therapist notes indicate sleeping better, anxiety/panic
symptoms are decreasing in intensity/frequency. Dr. Herseth[‘]s
3/03 ov notes improvement in sleep, forgetting things, main
complaint is aching/fibromyalgia component is big factor in
disabling her.
It appears due to multiple psychiatric sxs the clmt was not able to
rtw but it appears she is beginning to improve.
(AR 62‐63.)
On April 4, 2003, Defendant approved Plaintiff’s disability claim, effective
January 29, 2003. (AR 64, 151‐152.) Chastity Mallory, the claim manager,
approved the disability claim, because “EE meets def. of TD at this time due to
psych condition therefore will approve LTD through 5/31/03 and f/u w/EE that
begins to receive appropriate care w/psychiatrist.” (AR 64.) She also noted,
6
“Will also f/u PE findings to determine if supports TD for EE’s physical
complaints of fibromyalgia.” (Id.)
On June 3, 2003, Eastman asked Herseth to test for fibromyalgia because
“[h]er concern is that her disability covers her for 2 years for depression, but it
covers her until age 64 for fibromyalgia.” (AR 910.) Herseth opined, “I am
hoping that by the time 2 years have gone by, she has now only been in the long
term disability for 3 months, that a lot of these issues have resolved.” (Id.)
Herseth wrote, “She truly has not had symptoms that would warrant a complete
workup, but I have agreed to go ahead and test it.” (AR 910.)
2. First Termination and Reinstatement of Eastman’s Benefits
On September 22, 2003, Mary Ann DeSantis, RN, conducted a follow‐up
review of Plaintiff’s file and concluded that the intensity of her psychiatric
treatment did not reflect a significant psychiatric disorder. (AR 66.) DeSantis
continued, “However, as fibromyalgia has a strong psych component, would
obtain 8/15/03 OV note and beyond from Dr Hussain, and Brenda[] King’s OV
notes, and return to clinician for continued psych review.” As for the possibility
of fibromyalgia, DeSantis opined, “Unless clmt has a rheumatologic disorder
which needs tx, it does not appear she would remain impaired due to
fibromyalgia. Clmt is to see rheumatologist Dr Lessard 9/29/03 (initially, appt
was 9/04/03) and we should wait for report of that eval to complete fibromyalgia
7
review.” (Id.)
On September 29, 2003, James A. Lessard, M.D., conducted a rheumatology
consultation on Eastman. (AR 458‐63.) Lessard’s impression was “[f]ibromyalgia
– this is undoubtedly the cause of her current aches and pains, probably caused
by if not aggravated by [her history of depression and anxiety, and also the panic
attacks.]” (AR 462‐63). He noted that “all” of Eastman’s “tender points” had a “3
to 4+ with a positive jump sign.” (AR 462.)
By letter dated October 30, 2003, Defendant terminated Plaintiff’s LTD
benefits effective November 1, 2003, based on an “absence of any medical
documentation to support an impairment from your regular job duties due to
fibromyalgia or depression.” (AR 142‐144.)
Plaintiff, through counsel, submitted an appeal of Prudential’s decision on
December 31, 2003. (AR 810‐15.) The request was based on the assertion that
Eastman was disabled “because of the combination of her depression/anxiety and
fibromyalgia” and stated that the trigger point test constituted objective evidence
of impairment by fibromyalgia; however, the appeal letter focused on evidence of
Eastman’s disability due to mental illness. (Id. 813.) For example, the appeal
noted that on November 21, 2003, Herseth opined, “I do feel this lady has major
depression with anxiety and she has fibromyalgia, which is maybe secondary; the
depression is definitely overwhelming.” (Id. (emphasis added in appeal letter).)
8
On January 15, 2004, Defendant referred Eastman’s file to psychiatric
consultant, psychiatrist Dr. Stephen Gerson, M.D., for analysis. (AR 69, 701‐21.)
Gerson contacted Eastman’s treating psychiatrist, Dr. Shakeeb Hussain, M.D., on
February 17, 2004. (AR 722‐23, 728.) Hussain had treated Eastman since April 29,
2003. (Id. 722.) Hussain opined that Eastman was able to return to work parttime
and had been able to do so for the previous couple of months; however, he
also opined that Eastman should receive electroshock therapy and intensive
psychotherapy. (Id.) Hussain also indicated that Eastman’s depression and
stressors, such as the death of Eastman’s father, made her fibromyalgia worse.
(Id.) (However, in a letter to Hussain summarizing their conversation, Gerson
states that Hussain opined “that fibromyalgia made the depression worse.” (Id.
728.))
Gerson also contacted Dr. Brenda King, Ph.D., Eastman’s treating therapist
who had treated Eastman since February 24, 2003. (AR 724‐25.) King opined that
Eastman was disabled from performing her occupation due to depression and
ongoing psychiatric impairment. (Id. 724, 726.)
In his February 15, 2004, report, Gerson opined that Plaintiff was impaired
from her position as a result of her psychiatric conditions and might be impaired
indefinitely unless she received more aggressive treatment. (AR 702‐21). Gerson
reviewed and analyzed medical records from Dr. Harold E. Randall, Ph.D.,
9
Eastman’s psychologist from October 22, 2002 through February 27, 2003, when
treatment was transitioned to King; Lessard; Herseth; and King. Gerson also
addressed the question of whether Eastman’s psychiatric condition was
impacting her fibromyalgia:
Yes . . . note Dr. Herseth and Psych providers in his note of 3/28/03
felt there was an interplay, alleged fibro pain making psych
symptoms worse. Moreover, medical records seemed to indicate
that the claimant’s perception of pain and discomfort was
heightened in concert with subjective reports of stress intolerance,
increased sleep disturbance and increased anxiety symptoms.
(AR 721.)
On March 1, 2004, based on Gerson’s assessment, Defendant reinstated
Plaintiff’s disability benefits effective November 1, 2003, based on psychiatric
impairment. (AR 70, 136‐37.) The reinstatement letter recounted the 24‐month
mental illness limitation in the policy. (Id. 137.)
3. Social Security Disability Benefits
On May 28, 2004, Herseth completed a Treating Physician Medical
Opinion Statement, in conjunction with Eastman’s application for Social Security
disability benefits. (AR 607‐13.) Herseth noted that Eastman’s diagnosis was
major depression and fibromyalgia (id. 607) and opined that Eastman could not
work at even a sedentary level because her “mental status would not allow” (id.
611). He also noted that, with regard to her “exertional limitations” Eastman
10
“develops fatigue increase with most activity” and, with regard to “postural
limitations,” she “can do all these functions physically but tolerance is not there.”
(Id. 607‐09.)
On October 27, 2004, Plaintiff was approved for social security disability
benefits (“SSDB”), with a disability onset date of August 1, 2002. (AR 594‐601.)
The Social Security Administrative Law Judge (“ALJ”) held that Plaintiff was
disabled under the Social Security Act. (Id. 601.) Eastman had claimed disability
based on “fibromyalgia, depression and anxiety.” (Id. 598.) The ALJ found that
“[t]he medical evidence establishes that the claimant has severe depression,
anxiety, and fibromyalgia.” (Id. 600.) However, when discussing the medical
evidence and Eastman’s limitations, the ALJ only discussed Eastman’s mental
illnesses. The ALJ opined that “[t]he medical records well document claimant’s
history of depression and anxiety, with increasing difficulty leaving the home.”
(Id. 599.) The ALJ discussed records from King and Herseth, noting that Herseth
opined that “claimant’s mental status would not allow the performance of fulltime
work.” (Id.) With respect to Plaintiff’s impairment, the ALJ stated:
While the specific limitations appear to be somewhat out of
proportion of the medical records, the undersigned generally accepts
the opinion of claimant’s treating professionals and accepts that
claimant’s depression and anxiety result in marked difficulties in
maintaining concentration, persistence or pace and precludes the
performance of even simple, repetitive tasks involving more than
brief or superficial contact with others on a sustained basis.
11
Claimant cannot be expected to sustain the mental demands of work
eight hours per day, five days per week or the equivalent thereof.
Claimant would need more breaks, more days off than are normally
afforded in the work place and is not considered to be vocationally
reliable given the severity of her mental impairments.
Accordingly, claimant cannot be expected to perform her past
relevant work or any other work existing in significant numbers in
the national economy pursuant to Social Security Ruling 96‐8p, and
is disabled within the meaning of the Social Security Act.
(AR 599.) The ALJ’s finding of disability is based on Eastman’s mental illnesses.
4. Termination of Benefits Due to Mental Illness Limitation
Herseth completed a follow‐up Attending Physician Statement for
Prudential on December 8, 2004, stating that Eastman was not able to return to
work because of her “mental function” and stated that the “Nature of Medical
Impairment (i.e., loss of function)” was severe depression. (AR 662‐63.)
On January 25, 2005, Defendant applied the Policy’s 24‐month mental
illness limitation and terminated Plaintiff’s LTD benefits effective January 29,
2005. (AR 127‐129.) The termination letter explained, “Since your diagnosis of
Major Depressive Disorder is considered a psychiatric illness[], you are entitled
to 24 months of LTD benefits.” (Id. 128.)
On July 21, 2005, Plaintiff appealed the termination, claiming that she
“suffers from severe and debilitating fibromyalgia which renders her disabled.
This is without taking into consideration her depression/anxiety.” (AR 553‐57.)
12
On May 13, 2005, Herseth responded to a questionnaire from Plaintiff’s
counsel regarding her fibromyalgia condition. (AR 385‐87) Herseth opined that
“objective signs/symptoms in Ms. Eastman’s case substantiate the diagnosis of
fibromyalgia.” (Id. 385‐86.) He noted that “[f]ibromyalgia does not qualify as a
mental illness.” (Id. 386.) With respect to Plaintiff’s continuing complaint of
fatigue, Herseth stated, “I guess I do not see that as being [a] symptom related to
fibromyalgia alone. Certainly the symptom of fatigue is a primary, or commonly
found, symptom[] relating to depression and the extreme fatigue that [Plaintiff]
experiences I would attribute more to depression than to fibromyalgia.” (Id.)
With respect to Plaintiff’s symptom of pain, Herseth stated, “Severe pain is
certainly the most common symptom [] of fibromyalgia, and I do contribute
[Eastman’s] symptoms of pain to fibromyalgia. I do not see that as a symptom of
depression.” (Id.) Herseth opined
At the time I filled this questionnaire out I did feel that her mental
status certainly was limiting basically any of her abilities as far as
being gainfully employed. It would be my feeling that if you[] were
going to try to make a decision whether the fibromyalgia was
physically limiting her at this point, it might be wise to have
functional capacities assessment done as that is certainly a much
better assessment of physical disability. I do not feel that I could
make a determination of her disability based on physical findings
alone.
(Id.) Also, “Eastman’s complaints of disabling pain and fatigue traceable to her
fibromyalgia condition [are] credible and based on medical evidence.” (Id.) He
13
also stated that he did “not feel [Eastman’s] fatigue is related solely to her
fibromyalgia condition,” but “[c]ertainly her fatigue has been severe at times and
I do feel has prevented her from engaging in any regular employment.” (Id.)
With respect to the interrelationship of depression and fibromyalgia, Herseth
stated:
I do feel, regardless of the c[ause] and effect on relationship between
fibromyalgia and depression, that she is incapable of anything other
than intermittent ‘as tolerate’ employment. Unfortunately, I don’t
think you can separate these things out clearly enough so that you
can say one alone causes this situation to be.
(AR 386‐87.) Finally, Herseth opined that there was no evidence that Eastman
“has been ‘malingering’ or in any way seeking any type of secondary gain
regarding her illnesses.” (Id. 387.)
On July 20, 2005, Herseth provided another letter to Eastman’s counsel.
(AR 388.) He again opined that he could not separate the symptoms from her
fibromyalgia and her depression. (Id.) He concluded, “Overall I feel, in the last
few months, her depression has been fairly stable. It appears that her
fibromyalgia is what waxes and wanes and it appears to be related somewhat to
her level of activity.” (Id.)
Herseth referred Eastman to Step Ahead Therapy where she received
physical therapy for her fibromyalgia between August 8, 2005, and October 31,
2005. (AR 263.) Her treatments included myofascial release. (Id.)
14
Prudential referred Plaintiff’s file and appeal to Dr. Joel M. Shavell, D.O., a
rheumatologist, for independent analysis and assessment of Plaintiff’s level of
function with respect to fibromyalgia. (AR 72, 123‐24.) On August 22, 2005,
Shavell provided his opinion based on his assessment of Eastman’s file, including
records from her counsel, Herseth, Randall, King, Hussain, Lessard, and Drs.
Tsibulsky, Anderson, and Thompson who conducted Northwestern Psychiatry
and Mayo Clinic psychiatry evaluations. (Id. 269‐72.)
Shavell stated that
there is no evidence of any physical findings that limit her from any
of her work‐related activity. . . . The complaint that she seemed to
have was pain in the shoulders and the elbows and the hips, which
was diagnosed as fibromyalgia, but there was no evidence
throughout the entire chart of any abnormal physical findings,
limitation of motion, inability to function on a physical basis, or any
long‐term organic disease that would require her to be off work.
(Id. 271.) He noted that the consensus of her treating physicians was that she
predominantly suffered from panic disorder, agoraphobia, and major depression,
and when she lost control, experienced increased anxiety, resulting in pain and
medical problems. (Id.) As to her mental illnesses, Shavell thought that Eastman
“was well evaluated and undertreated.” (Id.)
Shavell opined that Eastman
is not impaired from any physical point of view whatsoever. In
reviewing the charts and reviewing the information that was given
to me, none of the physicians have ever made an attempt or thought
15
about making an attempt to establish a physical limitation of this
claimant. There are no reports of physical limitation, or limitation of
motion of the joints. There are no physical reports of limitations of
muscle strength or range of muscle strength. There is absolutely
nothing to indicate that she has any severe physical disabilities
which would entail that she not work. All of the opinion was
rendered with evaluations and very little treatment. No laboratories
studies defined it, and no x‐rays defined it, including doctor’s notes
and no treatments defined any limitation or any organic disease
whatsoever. After review of the medical records, it is my opinion
that she is able to return back to her normal work activities in a full
time capacity without any restrictions.
(AR 272.)
On August 31, 2005, Defendant upheld its decision to terminate Plaintiff’s
benefits, because Plaintiff had exhausted her benefits for mental illness‐based
disability and had no physical limitations preventing her from returning to work
independent of her psychiatric conditions. (AR 118‐21.) Prudential’s letter
acknowledged that Eastman was diagnosed with fibromyalgia but further
asserted that her medical file contained “no mention of any abnormal physical
findings, limited motion or an inability to function on a physical basis. There are
no physical reports of limitation on muscle strength or range of muscle strength.
The documentation in file does not support an impairment that would prevent
Ms. Eastman from performing her regular occupation with any restrictions.” (Id.
119‐20.) Prudential further stated that “[a]lthough her doctors are indicating she
has fibromyalgia, her symptoms appear to be due, in whole or part, to her
16
underlying mental illness for which she has exhausted all benefits payable due to
the Group Policy Benefit Limitation.” (Id. 120.)
5. Eastman’s Second Request for Reconsideration
On December 6, 2005, Plaintiff saw another rheumatologist, Dr. James F.
Hatch, M.D. (AR 255‐59.) Hatch concluded that “[f]ibromyalgia is clearly
present but the majority of her aches and pains that really bother her are not due
to fibromyalgia, i.e. bilateral trochanteric bursitis of the hips and bilateral plantar
fascitis.” (Id. 257.) Hatch’s notes provide, “The patient was advised that
fibromyalgia does not have to be a chronic disease and that as far as I thought she
should be able to correct the above problems as suggested.” (Id. 257‐58.)
On February 22, 2006, Eastman submitted a second appeal of Prudential’s
termination and included Hatch’s report. (AR 260‐64.)
Defendant requested an external file review from a physical medicine and
rehabilitation specialist, Dr. April Campbell, M.D. (AR 78.) On March 26, 2006,
Campbell provided a seven‐page analysis. (AR 176‐82.) She reviewed records
from Herseth, King, Randall, Hussain, Gerson, Tsibulsky, Anderson, Thompson,
Hatch, and Shavell, among others. (Id.) She specifically discussed records from
Herseth, Hussain, Lessard, and Hatch.
Campbell opined that while Eastman was disabled by “severe mental
illness,” she was not disabled by fibromyalgia. (AR 182.) Campbell concluded
17
that “[t]he fibromyalgia is clearly a secondary issue, and in fact, I rather doubt
that she has true fibromyalgia.” (Id.) She concluded that
[t]here is no evidence of any functional impairments involving Ms.
Eastman. She has consistently had a normal musculoskeletal exam,
and all of her complaints have been subjective in nature. There have
been virtually no objective findings, either on physical exam or on
imaging studies, to indicate evidence of ongoing pathology. The
tender point examination for fibromyalgia is considered subjective
testing, since it relies on the claimant to give a subjective complaint
of pain.
(AR 180.) She opined that Plaintiff’s continuing reports of chronic pain “could be
consistent with malingering and/or efforts at obtaining secondary gain,”
particularly in light of the fact that Eastman began complaining of more pain
when she became concerned that her LTD for her psychiatric claim would be
discontinued after two years. (Id. 181.) Campbell also opined that
“[f]ibromyalgia as a disease entity continues to be a controversial one. The
diagnosis is based entirely on subjective symptoms that anyone can replicate, and
in the absence of any objective findings, I feel that Ms. Eastman could return to
the essential duties of her job, or any occupation from a musculoskeletal point of
view.” (Id. 182.)
In a letter dated April 14, 2006, Defendant upheld its termination of
Plaintiff’s LTD benefits on the grounds that, aside from her psychiatric illness,
the records did not support any other disabling condition. (AR 79‐80, 109‐13.)
18
The letter recounted Eastman’s medical records, including a discussion of
Hatch’s treatment. Defendant stated: “Our review of the file indicated that the
medical records did not support the presence of a medical impairment at any
time after January 29, 2005. Further, Ms. Eastman would not be eligible for
benefit payments for any subsequent medical conditions, including the
conditions noted by Dr. Hatch as of February 2006, as her coverage under the
policy had lapsed.” (Id. 112.) Defendant concluded, “After reviewing Ms.
Eastman’s medical records, we maintain that documentation does not support a
physical impairment that would preclude her from returning to work. In the
absence of medical evidence to document a non‐psychiatric impairment that
would preclude Ms. Eastman from working as of January 29, 2005, we are unable
to pay additional benefits.” (Id.)
6. Overpayment of Benefits
Starting in April 2006, Defendant also began its attempts to collect
overpayments based on Plaintiff’s retroactive receipt of SSDB, as provided in the
Policy and in the Reimbursement Agreement signed by Eastman on April 15,
2003. Prudential computed overpayment in the amount of ,189.68. (AR 76‐77,
81‐87, 103‐06, 164‐71, 579‐81.)
D. Procedural History
On October 12, 2006, Eastman filed a Complaint against Prudential in this
19
Court, requesting reinstatement of her LTD benefits from January 29, 2005,
forward. Defendant filed a counterclaim for breach of contract requesting that
Eastman repay overpayment of her disability benefits because Prudential is
entitled to reimbursement for the amounts paid by the Social Security
Administration for the period of January 29, 2003, through January 29, 2005.
Both parties have now moved for summary judgment.
Prudential has also moved to strike portions of Eastman’s reply brief or, in
the alternative, for leave to file a sur‐reply. [Docket No. 48] Eastman opposes
this motion. [Docket No. 52] Although the Court finds nothing improper in
Eastman’s reply, it will permit Prudential to file its sur‐reply in order to ensure
that the parties’ positions are fully expressed to the Court.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non‐moving party, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. Summary judgment is only appropriate
when “there is no dispute of fact and where there exists only one conclusion.”
20
Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citation omitted).
B. Standard of Review for of Prudential’s Decision
1. General Standard of Review
Under ERISA, a plan beneficiary has the right to judicial review of a
benefits determination. See 29 U.S.C. § 1132(a)(1)(B). When a policy provides the
plan administrator with discretionary authority to determine eligibility for
benefits, the abuse of discretion standard generally applies. Cash v. Wal‐Mart
Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997). Here, Plaintiff does not
dispute that the Policy grants Defendant discretionary authority to determine her
eligibility for LTD benefits.
Under the abuse of discretion standard, the plan administrator’s decision
to deny benefits must be affirmed if “a reasonable person could have reached a
similar decision, given the evidence before him, not that a reasonable person
would have reached that decision.” Clapp v. Citibank, N.A. Disability Plan, 262
F.3d 820, 828 (8th Cir. 2001) (emphasis in original) (quotation omitted). Review
of the administrator’s decision is limited to the administrative record that was
before the plan administrator at the time that the final benefits decision was
made. Cash, 107 F.3d at 642. A decision is reasonable if it is supported by
substantial evidence, meaning “more than a scintilla but less than a
preponderance.” Clapp, 262 F.3d at 828 (citation omitted). A court “will not
21
disturb a decision supported by a reasonable explanation even though a different
reasonable interpretation could have been made.” Id. (citation omitted).
“To obtain a less deferential review, [a plaintiff] must present material,
probative evidence demonstrating that (1) a palpable conflict of interest or a
serious procedural irregularity existed, which (2) caused a serious breach of the
plan administrator’s fiduciary duty to her.” Woo v. Deluxe Corp., 144 F3.d 1157,
1160 (8th Cir. 1998) (citation omitted.) The conflict or procedural irregularity
must have must be egregious enough to create “a total lack of faith in the
integrity of the decision‐making process.” Layes v. Mead Corp., 132 F.3d 1246,
1251 (8th Cir. 1998) (citation omitted). If the claimant meets both prongs of the
Woo test, including a showing “that the conflict or irregularity has some
connection to the substantive decision reached,” the Court will adjust the
deference given to the decision of the plan administrator, depending on the
seriousness of the conflict or irregularity. Woo, 144 F.3d at 1161‐62 (citation
omitted).
2. Analysis of Applicable Standard of Review
Eastman contends that the Court should review the Prudential’s decision
to deny her coverage de novo, because Prudential has a palpable conflict of
interest and committed four serious procedural irregularities when reviewing her
claim.
22
a. Structural Conflict of Interest
Eastman asserts that Prudential has a conflict of interest because, as the
plan insurer, it will receive a direct financial benefit from denying her claim.
Even though Defendant acted as both claims administrator and the entity that
supplies plan benefits, this fact alone is not enough to warrant heightened
review. Chronister v. Baptist Health, 442 F.3d 648, 655 (8th Cir. 2006). Eastman
cannot satisfy the second prong of the test on this basis because she has not
shown that Prudential’s “initial grant and later termination of [Eastman]’s
disability benefits were tainted by any financial impact that those decisions may
have had on [Prudential] as the plan‐funding insurer.” Id.
The Court holds that there is no structural conflict of interest warranting a
heightened standard of review. However, the Court must still examine whether
Eastman meets the first prong of the Woo test due to the existence of procedural
irregularities.
b. Serious Procedural Irregularities
i. Whether Prudential Ignored Objective Findings
of Fibromyalgia
In Prudential’s October 30, 2003, termination letter, in which it concluded
that Eastman was not disabled from mental illness or fibromyalgia, Prudential
stated that Eastman’s “diagnosis of fibromyalgia is not associated with an
23
impairment rating due to lack of objective findings on which to base an
impairment.” (AR 143.) Prudential’s January 25, 2005, termination letter did not
mention fibromyalgia, instead merely stating that Eastman had exhausted her
“24 months of benefits for her psychiatric illnesses.” (AR 128.) In its April 14,
2006, denial of Eastman’s second appeal, Prudential dismissed the disabling
nature of her fibromyalgia condition based on its conclusion that her “physical
exams have been negative for any pathology to the musculoskeletal system;” the
reviewing physician opined that the fibromyalgia diagnosis was based on an
entirely subjective basis; the file review revealed “no evidence of any functional
impairment;” and her “primary diagnosis has been a psychiatric one.” (AR 111‐
12.) Defendant concluded that “Eastman’s complaints related to fibromyalgia are
a secondary issue and she could return to the duties of a regular occupation or
any occupation from a musculoskeletal point of view.” (Id. 112.)
Plaintiff argues that Defendant erred in denying her disability claim due to
a lack of objective findings of fibromyalgia, because the results of the triggerpoint
tests conducted by Herseth, through his statement that Eastman “does have
complaints of pain in 11 of the 18 sites on concern,” (AR 385) and the reports of
two rheumatologists are objective medical evidence of the existence and severity
of her fibromyalgia. She cites to Lessard’s September 29, 2003 report stating that
all of her tender points were “3 to 4+ with a positive jump sign,” and that
24
fibromyalgia “is undoubtedly the cause of her current aches and pains, probably
caused by if not aggravated by [depression, anxiety, and panic attacks],” and to
Hatch’s December 6, 2005 report that states that “[f]ibromyalgia is clearly present,
but the majority of her aches and pains that really bother her are not due to
fibromyalgia.” (AR 462, 257). See Chronister v. Baptist Health, 442 F.3d 648, 656
(8th Cir. 2006) (holding that “eighteen point ‘trigger test’ . . . qualifies as a clinical
examination standardly accepted in the practice of medicine,” and that
“trigger‐point test findings consistent with fibromyalgia constitute objective
evidence of the disease”) (citations omitted).
Prudential asserts that it had no reason to mention Eastman’s fibromyalgia
in its termination of benefits letter that was effective January 25, 2005, because her
LTD claim had only been approved on the basis of disability from a mental
illness. (AR 136‐37.) Although Prudential asserts that Eastman’s appeal of the
October 2003 termination of benefits was based solely on her mental illnesses, the
Court notes that she did assert that she was unable to work “because of the
combination of her depression/anxiety and fibromyalgia,” and also argued that
the trigger point test constituted objective evidence of her impairment by
fibromyalgia. (AR 810‐15.) However, the appeal did focus on Eastman’s
impairment due to mental illness, for example, noting that Herseth had opined
that “this lady has major depression with anxiety and she has fibromyalgia,
25
which is maybe secondary; the depression is definitely overwhelming.” (AR
813 (emphasis added in appeal letter).) Prudential reinstated Eastman’s benefits
based on the opinion of Gerson, a psychiatric specialist, who opined that
Eastman was fully and possibly indefinitely impaired from her regular
occupation due to her psychiatric conditions. (AR 70, 136‐37, 702‐21.)
Prudential asserts that it accepted that Eastman had fibromyalgia (AR 112,
120), but it required objective evidence of the disabling quality of or impairment
due to her fibromyalgia. (AR 41, 67, 74.) Prudential notes that several of her
physicians, including Randall and King, attribute her pain to her psychiatric
conditions and diagnosed her with somatoform pain disorder. (AR 425 (King’s
March 24, 2003 diagnosis of “307.80 Chronic pain with associated psychological
and physiological factors”), 429 (same), 462‐63 (Lessard’s September 29, 2003
impression of fibromyalgia “probably caused by if not aggravated by
[depression, anxiety, and panic attacks]”), 800‐09 (Randall’s December 12, 2002
assessment of “[p]sychological facts affecting physical function (skeletal muscle
headache and skeletal muscle pain)”).)
Eastman is correct that the results of her trigger‐point test constitute
objective evidence of a diagnosis of fibromyalgia. Furthermore, it may be
unreasonable for an insurer to require that medical opinions of impairment or
disability be based on evidence more “objective” than a trigger‐point test and the
26
claimant’s reports of pain. However, this is not a case in which Prudential
rejected the opinions of Eastman’s medical providers that she was disabled due
to fibromyalgia because their opinions were not based on objective medical
evidence. Rather, there is no evidence in the record that Eastman was disabled or
subject to particular limitations due to her fibromyalgia. Herseth, who conducted
the trigger point test, stated that although he believed she was disabled due to
mental illness he was unable to make a determination of her disability based on
fibromyalgia. (AR 385‐86.) Eastman cites to no restrictions from her medical
providers restricting her ability to work based on her diagnosis of fibromyalgia;
nor does she provide evidence that any of them found her disabled as a result of
her fibromyalgia. In such a case, Prudential did not commit a serious procedural
irregularity by requiring objective evidence of the disabling nature of Eastman’s
fibromyalgia. See, e.g., Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir.
2006) (holding plan can require objective evidence that fibromyalgia “was so
significant or severe that it would preclude [claimant] from performing her job”);
Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 840 (8th Cir. 2006) (upholding
plan’s denial of benefits to claimant with fibromyalgia, when “[g]iven th[e]
potential for varying impact of the condition among different patients, [plan] was
requesting objective information to verify that this claimant, whom it
acknowledged was afflicted with fibromyalgia, was disabled to the point that she
27
could not perform even sedentary or light‐duty work”); Boardman v. Prudential
Ins. Co. of Am., 337 F.3d 9, 15 n.5 (1st Cir. 2003) (holding that, although it is
unreasonable to require objective medical evidence to establish existence of
chronic fatigue syndrome and fibromyalgia, it was not unreasonable for insurer
to accept diagnosis but require “objective evidence that these illnesses rendered
her unable to work [because] [w]hile the diagnoses of chronic fatigue syndrome
and fibromyalgia may not lend themselves to objective clinical findings, the
physical limitations imposed by the symptoms of such illnesses do lend
themselves to objective analysis”), cited with approval in Pralutsky, 435 F.3d at
841.
ii. Whether Prudential Considered Eastman’s Pain
Allegations
Eastman asserts that Prudential committed a serious procedural
irregularity by ignoring her subjective complaints of pain. She cites to
Prudential’s August 31, 2005 denial letter, in which it stated, “Review of Ms.
Eastman’s medical records indicates that she reported pain in her shoulders,
elbows and hips and as a result was diagnosed with fibromyalgia by Dr. Herseth
(primary care physician). Ms. Eastman’s treating physicians have attributed her
complaints of pain to her fibromyalgia diagnosis, however there is no mention of
any abnormal physical findings, limited motion or an inability to function on a
28
physical basis. . . . The documentation in file does not support an impairment
that would prevent Ms. Eastman from performing her regular occupation with
any restrictions.” (AR 119‐20.)
Eastman notes that, while a plan administrator can make credibility
determinations regarding a claimant’s subjective reports of pain, it cannot “deny
benefits simply because the only evidence of a disabling condition is subjective
evidence.” Collins v. Cont’l Cas. Co., 87 Fed. Appx. 605, 607 (8th Cir.2004)
(unpublished) (citation omitted).
In this case, Prudential did address Eastman’s complaints of pain and
acknowledged her diagnosis of fibromyalgia. However, consistent with the
Policy, Prudential required Eastman to provide proof of the extent of her
disability. Eastman did not provide evidence from any medical provider that she
was unable to work due to fibromyalgia, as opposed to her mental illnesses. As
the Court concluded in the previous section, consistent with the Eighth Circuit
opinions in Johnson and Pralutsky, Prudential did not commit a serious
procedural irregularity by requiring such proof.
iii. Whether Prudential Considered All Evidence
Provided by Eastman Before Issuing a Final
Decision to Deny LTD Benefits
Eastman contends that Prudential refused to consider various medical
records and opinions, specifically the opinion of Hatch.
29
On December 6, 2005, Hatch diagnosed Eastman with fatigue due to
nonrestorative sleep; bilateral trochanteric bursitis; bilateral plantar fascitis
(leading to an altered gait); myofascial pain in her upper back and neck probably
due to posture problems; and fibromyalgia. (AR 257.) He went on to opine that
“the majority of her aches and pains that really bother her are not due to
fibromyalgia.” (Id.) In Prudential’s April 14, 2006 letter denying Eastman’s
second appeal, Prudential stated that “Eastman would not be eligible for benefit
payments for any subsequent medical conditions, including the conditions noted
by Dr. Hatch as of February 2006, as her coverage under the policy had lapsed.”
(AR 112.) Despite Prudential’s statement, it did provide a one‐paragraph
recitation of Hatch’s medical treatment and noted that Hatch’s records
“concluded an impairment that would prevent Ms. Eastman from returning to
work was not documented.” (Id. 111.) Plaintiff claims that Defendant both
mischaracterized this medical evidence and refused to consider it.
The Court concludes that Prudential did consider Hatch’s opinion, as it
stated in April 14, 2006 letter. Additionally, Hatch’s records were submitted to
Campbell, who reviewed them before rendering her final opinion. (Id. 179
(discussing Hatch medical records).) Prudential’s statement that, to the extent
Hatch’s examination revealed “subsequent medical conditions,” coverage ended
before there was evidence that these conditions existed does not amount to
30
ignoring the evidence submitted by Eastman. Moreover, Hatch did not opine
that Eastman was disabled based on conditions other than mental illness and
opined that Eastman “should be able to correct the above problems as
suggested.” (Id. 258.)
Prudential did consider the evidence regarding Hatch, and the reports of
its reviewers and its denial letters reveal that it considered the other evidence that
Eastman provided. The Court concludes that Prudential did not commit a
serious procedural irregularity by failing to consider all of the evidence provided
by Eastman.
iv.. Whether Prudential Committed a Serious
Procedural Irregularity by Failing to Obtain an
Independent Medical Examination or a
Functional Capacity Evaluation
Finally, Plaintiff claims that Defendant erred procedurally by failing to
obtain an independent medical examination (“IME”) and a functional capacity
examination (“FCE”). See Payzant v. UNUM Life Ins. Co. of Am., 402 F. Supp. 2d
1053, 1062 (D. Minn. 2005) (holding insurer committed serious procedural
irregularity by failing to obtain IME or FCE for claimant with fibromyalgia when
insurer failed to speak with claimant’s primary care provider, who opined
claimant was “unable to work” and “two primary doctors opined about the need
for a functional evaluation”). She argues that despite opinions by Herseth,
31
Lessard, and Hatch confirming the diagnosis and severity of Eastman’s
fibromyalgia, Prudential merely relied on Shavell’s file review of Eastman’s
medical records. Eastman notes that, in Herseth’s May 13, 2005 letter to
Eastman’s attorney, Herseth stated, “It would be my feeling that if you[] were
going to try to make a decision whether the fibromyalgia was physically limiting
her at this point, it might be wise to have functional capacities assessment done
as that is certainly a much better assessment of physical disability. I do not feel
that I could make a determination of her disability based on physical findings
alone.” (AR 386.) Eastman asserts that, as in Payzant, this “statement was made
in the context of documenting [Eastman’s] inability to work” as opposed to in the
context of determining whether Eastman was disabled. See Payzant, at 1063.
Prudential had three independent experts review Eastman’s claim – a
psychiatrist, a rheumatologist, and a physical medicine and rehabilitation
specialist –, each of whom reviewed Eastman’s entire file, as it existed at the time
of his or her review, and Gerson contacted two of Eastman’s treating physicians.
Given that not one of Plaintiff’s physicians opined that she was disabled as
a result of fibromyalgia, as opposed to psychiatric conditions, Prudential did not
commit a serious procedural irregularity by failing to obtain an IME or FCE when
it reviewed her medical file and involved two independent specialists in the
review process. Cf. Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820,
32
828 (8th Cir. 2001) (holding no serious procedural irregularity when insurer
failed to have rheumatologist or cardiologist review claim of cardiac impairment
and fibromyalgia when there was evidence from primary care physician and
treating cardiologist that claimant was not disabled, insurer spoke directly to
treating doctors, and insurer tracked medical history for two years); Heaser v.
Toro Co., 247 F.3d 826, 833 (8th Cir. 2001) (holding no procedural irregularity
when insurer did not order IME when insurer reviewed claimant’s medical
records, contacted one of claimantʹs treating physicians, and ordered a review by
a medical consultant specializing in the appropriate field).
The Court concludes that Prudential did not commit any serious
procedural irregularity in its handling of Eastman’s claim. Therefore, the Court
will review Prudential’s decision under the abuse‐of‐discretion standard.
C. Propriety of Prudential’s Denial of Benefits
1. Interpretation of Policy Language
The mental disability limitation provides: “Disabilities which, as
determined by Prudential, are due in whole or part to mental illness have a
limited pay period [of 24 months] during your lifetime.”
Prudential appears to argue that the mental illness limitation means that,
no matter how disabling a claimant’s physical disability is, if a mental illness also
contributes to her disability, the 24‐month limitation applies. Prudential also
33
argues, however, that even if the Policy language were interpreted to require
that, in order for the limitation to apply, the mental illness must be the but‐for
cause of the claimant’s disability, it reviewed Eastman’s claim under this
standard and she was still subject to the mental illness limitation. From the
Court’s review of the record, it is apparent that Prudential reviewed Eastman’s
claim to determine whether, independent of her mental illness, she was still
disabled.
The term “are due” is capable of a range of meanings, “ranging from sole
and proximate cause at one end of the spectrum to contributing cause at the
other.” Kimber v. Thiokol Corp., 196 F.3d 1092, 1100 (10th Cir. 1999)
(interpreting term “due to”). (“A ‘contributing cause’ means [the condition] was
a necessary, though not necessarily sufficient, cause of the . . . disability.” Old
Ben Coal Co. v. Dir., Office of Workersʹ Comp. Programs, U.S. Dept. of Labor, 62
F.3d 1003, 1008 (7th Cir. 1995) (citation omitted).) “When a plan administrator is
given authority to interpret the plan language, and more than one interpretation
is rational, the administrator can choose any rational alternative.” Kimber, 196
F.3d at 1100 (citation omitted). Thus, Prudential has the discretion to choose any
rational interpretation of the mental illness limitation, within the range noted.
The Court concludes that Prudential’s first proffered interpretation of the
limitation, that the limitation applies if a mental illness is in any way disabling,
34
even if the physical illness is also independently disabling, is patently
unreasonable. Under Prudential’s reading, no matter how physically disabled a
claimant is, she cannot obtain benefits beyond 24 months if she also has a mental
impairment that in some way, no matter how slight, also contributes to her
disability. Thus, given two claimants who are equally physically disabled, if the
first claimant has no mental disability but the second claimant has, in addition to
her complete physical disability, disabling depression, under Prudential’s
interpretation, the first claimant would receive lifetime benefits but the second
claimant, who is even more disabled than the first, would lose benefits after 24
months. This interpretation eviscerates the meaning of “are due,” even when
read in conjunction with the phrase “in whole or part.” Interpreting the plan
language to punish claimants for having a mental disability in addition to an
independently disabling physical condition is absurd and unconscionable.
The Court concludes any reasonable interpretation of the limitation
requires that, at a minimum, the limitation applies only if without the
contributing mental illness, the claimant’s physical condition would not be
independently disabling. The term “are due” means that the mental illness must
be at least a contributing factor or cause of the claimant’s disability. If the
claimant is disabled even without consideration of the mental illness, then the
mental illness is not a contributing cause of the disability — it is superfluous. If
35
the mental illness is a contributing cause of the disability, no matter how slight,
such that, without the mental illness, the claimant would not be disabled, then
the limitation applies. This interpretation is the only non‐absurd interpretation
of the limitation put forth by Prudential.
The Court now must determine whether a reasonable person, based on the
evidence before Prudential, could have determined that Eastman was not
disabled as a result of her fibromyalgia. In other words, the Court must decide
whether it was an abuse of discretion to decide that, without regard to Eastman’s
mental illnesses, Eastman was not disabled.
2. Whether Plaintiff Is Disabled Due to Fibromyalgia
a. SSDB Determination
Eastman asserts that her SSDB determination supports a finding that she
was disabled by fibromyalgia. While the ALJ did find that Eastman suffered
from fibromyalgia, the ALJ did not find that the fibromyalgia was independently
disabling. The ALJ never discusses the impairment allegedly caused by
fibromyalgia. Instead, the ALJ’s discussion of Eastman’s impairment focused on
Eastman’s mental illnesses. (AR 599.) For instance, the ALJ noted Herseth’s
opinion that Eastman’s “mental status would not allow the performance of fulltime
work,” and concluded that Eastman “cannot be expected to sustain the
mental demands of [full‐time] work,” and she would need excessive days off
36
“given the severity of her mental impairments.” (Id.) In any case, conclusions of
the Social Security Administration are not binding on Prudential. Farfalla v. Mut.
of Omaha Ins. Co., 324 F.3d 971, 975 (8th Cir. 2003).
b. Campbell
Eastman particularly attacks the opinion of consultant Campbell. Eastman
argues that Campbell’s opinion is incompetent because she concluded that “[t]he
tender point examination for fibromyalgia is considered subjective testing, since
it relies on the claimant to give a subjective complaint of pain.” (AR 180.)
Eastman notes that Herseth opined that “objective signs/symptoms in Ms.
Eastman’s case substantiate the diagnosis of fibromyalgia,” and, that the Eighth
Circuit has held that trigger‐point testing is objective evidence of fibromyalgia.
Defendant asserts that Campbell’s classifications of Eastman’s trigger
points as subjective is irrelevant because the mere diagnosis of fibromyalgia does
not establish disability. See Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998) (“It is
not enough [in the SSDB context] to show that she had received a diagnosis of
fibromyalgia with a date of onset prior to the expiration of the insured period,
since fibromyalgia is not always (indeed, not usually) disabling.”) (citation
omitted).
The Court agrees that Campbell’s opinion can be interpreted to improperly
dismiss Eastman’s diagnosis of fibromyalgia based on the lack of “objective” test
37
results. However, Campbell did completely review Eastman’s medical file and
explained her reasoning for doubting Eastman’s credibility. Morever, in light of
the fact that there is no opinion from any medical provider, treating or otherwise,
the Eastman was disabled or subject to particular limitations due to her
fibromyalgia, the Court cannot say that Campbell’s dismissal of Eastman’s
fibromyalgia diagnosis rendered Prudential’s decision an abuse of discretion
when Prudential based its termination on the lack of evidence that Eastman’s
fibromyalgia was disabling.
c. Treating Physicians
In this case, the Policy placed the burden of proof on Eastman to establish
her eligibility for benefits. (AR 41‐42.) Eastman must provide written proof that
demonstrates “the extent of your disability, including restrictions and limitations
preventing you from performing your regular occupation or gainful occupation.”
(Id. 41.) The parties agree that Eastman is disabled and that Eastman has been
diagnosed with fibromyalgia. However, the record contains no evidence
regarding the extent of Eastman’s impairment caused by fibromyalgia and no
opinion by any medical provider that Eastman was disabled by fibromyalgia.
See, e.g., Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 840‐41 (8th Cir. 2006)
(upholding plan’s denial of benefits to claimant with fibromyalgia, when “[g]iven
th[e] potential for varying impact of the condition among different patients,
38
[plan] was requesting objective information to verify that this claimant, whom it
acknowledged was afflicted with fibromyalgia, was disabled to the point that she
could not perform even sedentary or light‐duty work”). Instead, the record is
replete with opinions by Eastman’s treating physicians, and by consulting
physicians, that Eastman’s mental illnesses caused her disability.
Eastman’s treating physicians provide support for Prudential’s
determination. None of Eastman’s treating physicians rendered a clear opinion
that her fibromyalgia was disabling. For instance, on December 8, 2004, Herseth
opined that Eastman could not return to work as a result of her “mental
function” due to severe major depression. (AR 663.) King opined that Eastman
was disabled as a result of depression and related psychiatric impairment. (Id.
724, 726.) She also opined that Eastman suffered from a pain disorder with
psychological and physiological factors. (Id. 425, 429.) Lessard opined that
Eastman’s depression and anxiety caused her fibromyalgia symptoms. (AR 462‐
63) Hatch opined that thw majority of Eastman’s aches and pains were not
attributable to fibromyalgia and that Eastman “should be able to correct the . . .
problems as suggested.” (AR 257‐58.) Additionally, as Prudential notes, even if
Eastman’s psychological conditions were of physical origin, the manifestation
and symptoms of an illness trigger the applicability of the mental illness benefit
limitation. Stauch v. Unisys Corp., 24 F.3d 1054, 1056 (8th Cir. 1994); Brewer v.
39
Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 154 (8th Cir. 1990).
Eastman relies heavily on the opinion of Herseth. Eastman notes that, on
March 6, 2003, Herseth opined that “the component of fibromyalgia in this lady is
a big factor; it seems to really be disabling her,” and that on May 13, 2005,
Herseth stated: “Severe pain is certainly the most common symptom [] of
fibromyalgia, and I do contribute [Eastman’s] symptoms of pain of fibromyalgia.
I do not see that as a symptom of depression.” She admits that he attributed her
fatigue “more to depression than to fibromyalgia,” but argues that he admits her
fibromyalgia also contributes to both her pain and fatigue: “Eastman’s
complaints of disabling pain and fatigue traceable to her fibromyalgia condition
[are] credible and based on medical evidence.”
Herseth clearly did regard Eastman as disabled, opining, “I do feel,
regardless of the c[ause] and effect on relationship between fibromyalgia and
depression, that she is incapable of anything other than intermittent ‘as
tolerate[d]’ employment.” However, Herseth also was clear in his statement that
he could not make a determination that she was disabled based on her physical
ailments alone.
d. Reviewing Physicians
Additionally, three independent specialists reviewed Eastman’s file; none
opined that she was disabled due to fibromyalgia; and two specifically opined
40
that she was not disabled due to fibromyalgia. Even if Herseth’s opinion were
interpreted to support Eastman’s claim, Prudential was entitled to rely on the
opinions of the reviewing physicians, particularly in light of the opinions of
treating physicians Hatch, Lessard, and King:
Where there is a conflict of opinion between a claimant’s treating
physicians and the plan administrator’s reviewing physicians, the
plan administrator has discretion to find that the employee is not
disabled unless the administrative decision lacks support in the
record, or . . . the evidence in support of the decision does not ring
true and is . . . overwhelmed by contrary evidence.
Coker v. Metro. Life Ins. Co., 281 F.3d 793, 799 (8th Cir. 2002) (citation omitted).
See also Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)
(“[C]ourts have no warrant to require administrators [of ERISA plans]
automatically to accord special weight to the opinions of a claimant’s physician;
nor may courts impose on plan administrators a discrete burden of explanation
when they credit reliable evidence that conflicts with a treating physician’s
evaluation.”) (footnote omitted).
e. Conclusion
Although the Court may not agree with Prudential’s decision that Eastman
was not disabled due to fibromyalgia, Prudential’s determination that Eastman
was subject to the 24‐month mental illness limitation was not an abuse of
discretion. A reasonable person, given the evidence in the record, could have
41
reached a similar decision. Therefore, Prudential is entitled to summary
judgment on Eastman’s ERISA claim.
D. Defendant’s Counterclaim for Recovery of SSDB
Under the Policy, certain “deductible sources of income” must be
subtracted from a claimant’s LTD benefits. (AR 31.) These sources of income
include disability payment under the Social Security Act. (Id.) Defendant paid
Plaintiff the full amount of her gross LTD benefits from January 2003 through
January 2005. Plaintiff, however, was awarded SSDB retroactive to January 2003
in the amount of ,393 per month. (Id. 579.) Eastman has not yet reimbursed
Defendant for the overpaid benefits, despite the applicable Policy provision and a
signed Reimbursement Agreement that required her to do so.
Defendant asks for summary judgment on its breach of contract claim in
the amount of ,189.68. Eastman concedes that, if Prudential’s motion for
summary judgment is granted, an overpayment has been made; however, she
objects to the amount of damages to which Prudential is entitled. Plaintiff argues
that Prudential has failed to meet its burden of proof as to the amount of
overpayment because it provides no citation to the administrative record to
explain how it calculated an overpayment of ,189.68. In fact, the record does
reflect both Eastman’s Social Security award and Prudential’s method of
calculation. (See AR 76‐77, 81‐87, 103‐06, 164‐71, 579‐81.) Eastman has pointed to
42
no genuine issue of material fact with regard to the amount of overpayment that
she owes Prudential. Therefore, the Court grants summary judgment for
Prudential on its claim for ,189.68.
Prudential also requests an award of attorney fees and prejudgment
interest, but presents no argument explaining why it is entitled to attorney fees or
prejudgment interest. Therefore, if Prudential seeks such an award, it must
submit a memorandum to the Court within 30 days of the date of this Order
explaining why it is so entitled. Eastman shall have 30 days from the date of the
filing of Prudential’s to submit a brief in opposition.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. Defendant’s Motion to Strike Portions of Plaintiff’s Reply Brief in
Support of Her Motion for Summary Judgment or, Alternatively, for
Leave to File a Sur‐Reply [Docket No. 48] is GRANTED as follows:
Prudential is granted permission to file its proposed sur‐reply
[Docket No. 54].
2. Defendant’s Motion for Summary Judgment [Docket No. 29] is
GRANTED and Defendant is awarded judgment in the amount of
,189.68.
3. If Prudential seeks an award of attorney fees or prejudgment
interest, it must submit a motion and memorandum to the Court
within 30 days of the date of this Order explaining why it is so
entitled. Eastman shall have 30 days from the date of the filing of
Prudential’s to submit a brief in opposition.
43
4. Plaintiff’s Motion for Summary Judgment [Docket No. 25] is
DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 29, 2008 s / Michael J. Davis
Judge Michael J. Davis
United States District Court
 

 
 
 

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        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

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Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.