Demer v. Ibm Corp., CV–11–441–TUC–JGZ.

• Citation: 975 F.Supp.2d 1059
• Decision Date: 30 September 2013
• Docket Number: No. CV–11–441–TUC–JGZ.,CV–11–441–TUC–JGZ.
• Parties: Daniel G. DEMER, Plaintiff, v. IBM CORPORATION LTD. PLAN and Metropolitan Life Insurance Company, Defendants.
• Court: U.S. District Court — District of Arizona

975 F.Supp.2d 1059

Daniel G. DEMER, Plaintiff,

v.IBM CORPORATION LTD. PLAN and Metropolitan Life Insurance Company, Defendants.

No. CV–11–441–TUC–JGZ.

United States District Court,

D. Arizona.

Sept. 30, 2013.

Barry Kirschner, Waterfall Economidis Caldwell Hanshaw & Villamana PC, Tucson, AZ, for Plaintiff.

James Kyle Mackie, Frederick David Harlow, Ogletree Deakins Nash Smoak & Stewart PC, Tucson, AZ, for Defendants.

ORDER

JENNIFER G. ZIPPS, District Judge.

This matter arises under the Employment Retirement Income Security Act of 1974 (“ERISA”). Plaintiff Daniel G. Demer appeals Defendant MetLife's denial of his application for long term disability benefits. The parties have filed the following cross motions for summary judgment and responses: Plaintiff's Motion for Summary Judgment (Doc. 28); Defendants' Response to Plaintiff's Motion for Summary Judgment and Defendants' Cross–Motion for Summary Judgment (Doc. 34); Plaintiff's Reply in Support of Plaintiff's Motion for Summary Judgment and Plaintiff's Response to Defendants' Cross–Motion for Summary Judgment (Doc. 41); and Defendants' Reply in Support of Defendants' Motion for Summary Judgment. (Doc. 44.) For the following reasons, the Court will deny Plaintiff's Motion for Summary Judgment and grant Defendants' Cross–Motion for Summary Judgment.

FACTUAL AND PROCEDURAL HISTORY

A. The Plan

The IBM Corporation Long Term Disability Plan (the “Plan”) provides benefits for participating employees who are “disabled” within the meaning of the Plan. (DSOF ¶ 1; PRDSOF ¶ 1.) ¹ MetLife is contracted to act as Claims Adjuster and to fund long term disability (“LTD”) benefits under the Plan. ( Id.) The Plan provides:

In carrying out their respective responsibilities under the LTD Plan, the Plan Administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the LTD Plan and to determine eligibility for and entitlement to LTD Plan benefits in accordance with the terms of the LTD Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious.

(Doc. 36–3, Administrative Record (“AR”) 116.) The Plan thus delegates discretionary authority to MetLife to determine who is and is not disabled as that term is defined in the Plan. (DSOF ¶ 1; PRDSOF ¶ 1.)

During the first twelve months of qualifying sickness or injury, a participant is “disabled” if he is unable to perform his regular duties with IBM because of sickness or injury. (DSOF ¶ 2; PRDSOF ¶ 2.) This is commonly known as the “own occupation” period. ( Id.) After the expiration of twelve months, the Plan defines the term “disabled” differently; “disabled means that, because of a sickness or injury, you cannot perform the important duties of any other gainful occupation for which you are reasonably fit by your education, training, or experience.” (Doc. 36–3, AR 107.) This is commonly known as the “any occupation” period. (DSOF ¶ 3.) Among other limiting provisions, the Plan limits benefits for mental or nervous disorders, except schizophrenia, dementia, or organic brain disease, to a lifetime maximum of 24 months. (DSOF ¶ 7; PRDSOF ¶ 7.) Under the terms of the Plan, entitlement to benefits ends when the participant no longer qualifies as disabled or fails to provide proof of such disability. (Doc. 36–3, AR 113.) When a claim for disability is made, the claimant must provide written evidence that establishes the nature and extent of the loss or condition; MetLife's obligation to pay the claim; and the claimant's right to receive payment. (Doc. 36–1, AR 24.)

B. Demer's Claim for LTD Benefits under the “Own Occupation” Definition of Disabled

Demer was employed by IBM and a participant/member of its group disability coverage plan. (PSOF ¶ 1; DSOF ¶ 8.) Demer worked as the lead internal auditor/assessor and earned approximately $76,000 annually before his last day of work on January 9, 2009. (PSOF ¶ 2.) On that day, under the terms of the Plan, Demer began receiving Short Term Disability (“STD”) benefits, which he continued to receive until they expired on July 10, 2009. (DSOF ¶ 8; PRDSOF ¶ 8.)

On March 4, 2009, Demer applied for LTD benefits, asserting that he was “unable to do [his] job duties due to severe [and] recurrent depression and spinal stenosis, chronic headaches.” (Doc. 37–5, AR 1202.) Demer stated that his symptoms appeared in March of 2008. ( Id.) His symptoms included headaches, chronic neck and back pain, myalgia, and sciatica. ( Id.) Demer also stated “I do not know when I will be able to perform the duties of my job.” ( Id.) In support of his application for LTD benefits, Demer submitted the “Statement of Attending Physician” from his treating psychiatrist, Donald J. Garland, Jr., in which Dr. Garland diagnosed Demer's primary ailment affecting work ability as a “major depressive episode.” (Doc. 37–5, AR 1230.) Dr. Garland determined that Demer was totally disabled but could return to work in approximately six months to one year. (Doc. 37–5, AR 1231.)

MetLife requested additional medical information from Demer to complete its evaluation. (DSOF ¶ 12; PRDSOF ¶ 12.) In response, Dr. Garland faxed an Initial Psychiatric History and Examination of Demer, which included notes from office visits. (Doc. 37–5, AR 1161–1176.) In addition to diagnosing Demer with severe depression, Dr. Garland noted that Demer suffered from Chronic Pain Syndrome and Bipolar Type II. (Doc 37–5, AR 1175; Doc. 37–3, AR 1068–69.) Dr. Garland stated that Demer “is not currently able to engage in his usual occupation on a part or full time basis due to his problems with concentration, intrusive depressive ideation with significant difficulty making decisions. He would have problems in a work context due to his tearfulness and severe depression.” (Doc. 37–3, AR 1069.)

Demer's chiropractor, David D. Heaton, D.C., who treated Demer from February 23, 2009 to April 2009, also provided office notes to MetLife. (DSOF ¶ 14.) Dr. Heaton recommended that a functional capacity test be ordered. (Doc. 37–4, AR 1119–20.) Dr. Heaton noted that Demer would struggle to sit for periods of time over thirty minutes, he squirmed in his seat when speaking with the doctor for five minutes, he suffered headaches, and he could not lift, carry, or handle anything for any length of time over one hour; Dr. Heaton concluded, “Mr. Demers [sic] has significant stenosis and degenerative changes in his spine.” (Doc. 37–4, AR 1119.)

MetLife also received office notes from Dr. Debra Weidman, Demer's treating anesthesiologist. Following his chiropractic treatment, Demer returned to Dr. Weidman on April 7, 2009 for an epidural injection procedure. (Doc. 37–4, AR 1082.) Upon conducting a physical exam, Dr. Weidman stated that “[h]e is alert, conversant and oriented x3.” (Doc. 37–4, AR 1083.) Dr. Weidman noted that “he really does not have much in the way of radicular pain into his upper extremity. This seems to have quieted down since I had last seen him for cervical epidural injection. He also tells me that his lumbar radioculopathy has been quiet and has not bothered him since 2007.” ( Id.) Her assessment noted that Demer had a history of headaches, cervicogenic and tension; myofascial neck pain; mechanical cervical pain with degenerative disk and facet disease; history of tobacco use; and long term opiate therapy. ( Id.)

Demer's treating neurologist, Dr. David Weidman, provided MetLife with an “Attending Physician Statement” based on an exam conducted on April 20, 2009. (Doc. 37–4, AR 1086–87.) With regard to Demer's physical capabilities, Dr. David Weidman was of the opinion that Demer could sit and stand intermittently for four to five hours per day, walk six to seven hours intermittently per day, frequently lift up to ten pounds, occasionally lift up to twenty pounds, and never lift twenty-one to fifty pounds. (Doc. 37–4, AR 1086.) Dr. David Weidman commented that he believed Demer's inability to work was due to multiple factors including “chronic pain and depression interact [ing] with each other,” and he did not expect improvement in these areas. ( Id.) Dr. Weidman also submitted to MetLife the results of an Electromyography (“EMG”) conducted on July 21, 2009, which noted: “Normal study of left upper extremity. No evidence for a upper cervical radiculopathy on left.” (Doc. 37–3, AR 1056.)

C. MetLife Approves Demer's “Own Occupation” Disability

To assess Demer's depression, MetLife retained Independent Physician Consultant (“IPC”) Ernest Gosline, M.D., F.A.P.A., Board Certified in Psychiatry, to review Demer's medical records and prepare an assessment. (Doc 37–3, AR 1040–44.) Dr. Gosline concluded that Demer's major depressive disorder, which is worsened by chronic pain, limited his ability to work full time at IBM beyond July 1, 2009. (Doc 37–3, AR 1041–42.)

Based in part on Dr. Gosline's assessment, MetLife determined that Demer met the “own occupation” definition of “disabled” under the terms of the Plan. (DSOF ¶ 23; PRDSOF ¶ 23.) Accordingly, on July 28, 2009, MetLife sent Demer a letter approving his claim for LTD benefits. ( Id.) The letter informed Demer that his “primary diagnosis” was for a mental or nervous disorder, and therefore his LTD benefits are subject to a lifetime benefit period of 24 months. (Doc. 37–3, AR 1052.) The letter also reminded Demer that “after expiration of the [initial] 12 month period [of LTD benefits],” the definition of “disabled” would change to the “any occupation” standard. (DSOF ¶ 23; PRDSOF ¶ 23.)

D. Demer's Claim for LTD Benefits under the “Any Occupation” Definition of Disabled

On November 19, 2009, MetLife sent Demer a letter informing him that to continue receiving benefits beyond July 11, 2010, he “must be disabled from performing any occupation....” (DSOF ¶ 24; PRDSOF ¶ 24.) The letter also requested additional medical...