482 F.3d 860 (6th Cir. 2007), 05-2100, Rochow v. Life Ins. Co. of North America

Docket Nº:05-2100.
Citation:482 F.3d 860
Party Name:Daniel J. ROCHOW, Plaintiff-Appellee, v. LIFE INSURANCE CO. OF NORTH AMERICA, Defendant-Appellant.
Case Date:April 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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482 F.3d 860 (6th Cir. 2007)

Daniel J. ROCHOW, Plaintiff-Appellee,

v.

LIFE INSURANCE CO. OF NORTH AMERICA, Defendant-Appellant.

No. 05-2100.

United States Court of Appeals, Sixth Circuit.

April 3, 2007

Argued: Sept. 19, 2006.

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ARGUED:

Angela M. Brown, Honigman, Miller, Schwartz & Cohn, Lansing, Michigan, for Appellant.

Erik W. Scharf, Coconut Creek, Florida, for Appellee.

ON BRIEF:

Angela M. Brown, Honigman, Miller, Schwartz & Cohn, Lansing, Michigan, for Appellant.

Erik W. Scharf, Coconut Creek, Florida, John J. Cooper, Cooper

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Law Firm, Rochester, Michigan, for Appellee.

Before: CLAY and GILMAN, Circuit Judges; OBERDORFER, District Judge. [*]

OPINION

OBERDORFER, District Judge.

Daniel Rochow, the former President of Arthur J. Gallagher & Co. ("Gallagher"), currently suffers from HSV-Encephalitis, a rare and severely debilitating disease. The question in this case is whether or not the insurer, Life Insurance Company of North America ("LINA") acted arbitrarily and capriciously when it concluded that Rochow was not disabled on the date that he left his job, therefore denying his claim for disability benefits. The district court held that LINA's determination was arbitrary and capricious and unsupported by the administrative record. For the reasons hereinafter stated, we AFFIRM that decision.

BACKGROUND

A. Rochow's Symptoms and Diagnosis

The Administrative Record reveals the following facts. Daniel Rochow was the President of Gallagher for ten years. He had long-term disability coverage through Gallagher's Group Insurance Plan (the "Plan"), administered by LINA. In 2001, Rochow began to experience short-term memory loss, occasional chills, sporadic sweating, and stress at work. On June 15, 2001, he visited Dr. Bruce Forman to discuss his symptoms. Dr. Forman took notes, but did not record any conclusions.

In July 2001, Gallagher demoted Rochow from President to Sales Executive--Account Manager. According to Jack Tellerico, an Area Vice President and Rochow's co-worker at Gallagher, this demotion occurred because Rochow could no longer perform his duties as President.

On August 21, 2001, Rochow returned to Dr. Forman. He reiterated his concerns about his short-term memory loss, which had now been ongoing for six to eight months. Dr. Forman again took notes regarding Rochow's complaints. He concluded that Rochow was suffering from depression, prescribed anti-depressants, and referred him to a neurologist. [JA 131].

On October 2, 2001, Rochow saw a neurologist, Dr. Mary Ann McKee. According to Dr. McKee's notes, during the examination, Rochow was at times unable to answer her questions or describe his problems. He was tearful and cried often during the exam. He told Dr. McKee that the reason for his visit was "distractibility and difficult[sic] with memory." [JA 153]. He explained that "for the last six months he has noticed that he might think of something and then in the middle of his thoughts he will lose the rest of the thought and not be able to complete the sentence." [JA 153]. Dr. McKee concluded that "his memory difficulty is really secondary to depression and does not represent an organic brain disorder." [JA 154]. An MRI on October 9, 2001 was "unremarkable." [JA 156].

During this time, Rochow was having increasing difficulties at work. According to Tellerico, Rochow became unable to perform duties as a Sales Executive-Account Manager, which included budgeting revenue, developing sales plans, and identifying new clients or new products for existing clients; "[s]ince Mr. Rochow could not perform these material duties, he was not able to continue working at Arthur J. Gallagher & Co." [JA 113]. January 2,

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2002 was his last day of employment, and the day on which his disability coverage with LINA lapsed.

In February 2002, Rochow visited...

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