Humphrey v. Prudential Ins. Co. of Am.

• Citation: 791 F.Supp.2d 655
• Decision Date: 24 May 2011
• Docket Number: Civil No. 09–3705 (JNE/FLN).
• Parties: Elaine F. HUMPHREY, Plaintiff,v.PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.
• Court: U.S. District Court — District of Minnesota

791 F.Supp.2d 655

Elaine F. HUMPHREY, Plaintiff,

v.PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.

Civil No. 09–3705 (JNE/FLN).

United States District Court, D. Minnesota.

May 24, 2011.

Douglas E. Schmidt, Douglas Schmidt & Associates, PA, Mark L. Heaney, Heaney Law Firm, LLC, Minnetonka, MN, for Plaintiff.Emily Johnson Piper, Corey J. Ayling, Joelle M. Lester, McGrann Shea Carnival Straughn & Lamb, Chtd., Minneapolis, MN, Sean K. McMahan, Alston & Bird LLP, Atlanta, GA, for Defendant.

ORDER

JOAN N. ERICKSEN, District Judge.

Elaine Humphrey brought this action against Prudential Insurance Company of America (Prudential) to recover long-term disability (LTD) benefits under a plan offered by her former employer, KPMG, LLP, pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001–1461 (2006). Humphrey also claims that Prudential breached its fiduciary duty. The case is before the Court on Prudential's Motion for Summary Judgment. For the reasons set forth below, the Court grants Prudential's motion.

I. BACKGROUND

Beginning in July 2005, Humphrey worked for KPMG as a senior administrative assistant. During her employment, Humphrey enrolled in a disability plan insured by Prudential under Group Contract G–43764–DE (the Plan), an ERISA-governed employee welfare benefit plan. Humphrey's coverage under the Plan began on August 1, 2005.

A. The Disability Plan

Prudential is the insurer of the Plan and also serves as its claims administrator. Plan participants are eligible for LTD benefits if they are found to be disabled. Under the Plan, “you are disabled when Prudential determines” that:

you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury.

(Coppola Decl. D0631) “Regular occupation” is defined as the “occupation you are routinely performing when your disability begins. Prudential will look at your occupation as it is normally performed instead of how the work tasks are performed for a specific employer or at a specific location.” ( Id.) “Material and substantial duties” are duties that are “normally required for the performance of your regular occupation” and which cannot be reasonably omitted or modified. ( Id.) Prudential may require a claimant to be examined by doctors, other medical practitioners, or vocational experts of its choice, at Prudential's expense. ( Id.) The Plan also states that benefit payments may cease on the “date you fail to submit proof of continuing disability satisfactory to Prudential.” ( Id. at D0639) Proof of a claim includes appropriate documentation of the disabling disorder and proof of the “extent of your disability, including restrictions and limitations preventing you from performing your regular occupation,” among other information. ( Id. at D0644)

Under the Plan in effect as of January 2006, Prudential must make a determination about a participant's initial claim for benefits within 45 days of filing. ( Id. at D0662) If benefits are denied, the Plan allows for two levels of appeal, each of which must be initiated within 180 days of the denial. ( Id.) When Humphrey began work with KPMG, she was provided with a copy of the Plan providing three levels of appeal. She was never provided with a new, updated, or amended version of the Plan. (Humphrey Aff., ¶¶ 2–3 & Ex. A)

B. Treatment and Claims History

Humphrey discontinued her work at KPMG in June 2006 because of severe back pain eventually diagnosed as two-level disc degenerative changes, early degenerative spondylolisthesis,¹ subarticular stenosis, and a herniated disc.² Humphrey's treating physician, Dr. Steven Sabers, refers to her primary diagnosis variously as two-level disc degenerative changes, two-level disc abnormality, two-level degeneration at the L4–L5 and L5–S1 vertebrae, and two-level disc protrusion. Humphrey applied to Prudential for Short Term Disability (STD) benefits in June 2006, and Prudential approved her claim, initially providing STD benefits payments through December 3, 2006. After a termination and appeal, Prudential reinstated Humphrey's STD benefits through December 17, 2006, and granted LTD benefits for a “closed period of time” through March 31, 2007. The reinstatement was based on a determination by Albert Kowalski, who is employed by Prudential and board certified in internal medicine and occupational medicine. Based on Humphrey's self-reported sitting intolerance, exacerbation of pain after tying her boot on January 5, 2007, and office-visit notes dated February 15, 2007, from Dr. Sabers, Dr. Kowalski found that Humphrey was impaired and could not engage in sedentary employment “on a regular and sustained basis” from June 21, 2006 to “at least” March 15, 2007. Dr. Kowalski noted that an Activities of Daily Living form filled out by Humphrey in April 2007 showed greater work capacity, and he recommended an independent medical examination (IME) with an orthopedic surgeon to identify Humphrey's current work capacity.

In July 2007, Humphrey appealed the termination of her LTD benefits. In support, she submitted a magnetic resonance imaging (MRI) scan from June 2007 and a review of the MRI scan by Dr. Sabers. According to Dr. Sabers, there did not appear to be any “significant change or evolution in the pathology,” and Humphrey continued to suffer from two-level disc degenerative changes with associated facet joint degenerative change. Dr. Sabers recommended medial branch blocks. Dr. Kowalski reviewed these records and found impairment through June 2007. Dr. Kowalski suggested monitoring the outcome of the suggested nerve block therapy,³ reviewing another Activities of Daily Living form in 4–6 weeks, and setting up an IME with an orthopedic surgeon. Prudential reinstated her benefits effective April 1, 2007.

In November 2007, Humphrey saw Dr. Amir A. Mehbod, a surgeon. Dr. Mehbod performed a physical examination, and he reviewed X-rays and an MRI scan. The X-rays revealed L4–L5 degenerative spondylolisthesis, and the MRI scan showed signs of disc degeneration with an annular tear at the L5–S1 vertebrae. He observed a normal gait but noted that Humphrey reported she could not sit for any period or stand for more than 30 minutes. He listed Humphrey's current medications: Vicodin, ibuprofen, multivitamins, omega–3, and calcium. Dr. Mehbod indicated that he would recommend a two-level fusion surgery for Humphrey. Ms. Humphrey was not interested in fusion surgery, however, and so Dr. Mehbod recommended a nonoperative treatment at that time.⁴

Mary Ann DeSantis, a registered nurse employed by Prudential, reviewed Dr. Mehbod's examination and found that it neither “appear[ed] to reflect abnormal exam findings nor current intensity of [treatment with] pain meds/modalities which would prevent performance of some type of work.” Nurse DeSantis concluded that Humphrey appeared to have the capacity to do at least part-time sedentary work and recommended that a physical therapist review her file to determine her capacity.

On December 17, 2007, Dr. Sabers saw Humphrey. She was experiencing increasing spasms, numbness, tingling, and paresthesias across her lower back. She was managing her symptoms with stretching, heat, ice, and rest, and was “dead set” against spinal fusion surgery. Noting that Humphrey still had leftover Vicodin prescribed almost a year before, he prescribed non-narcotic ibuprofen and tramadol to treat her pain.

On January 14, 2008, Melissa Hendricks, a physical therapist, reviewed Dr. Mehbod's report; office-visit notes from a September 25, 2007 examination by a neurologist; and the December 17, 2007, report from Dr. Sabers. Hendricks did not find “significant abnormalities,” but she noted that the degenerative changes in Humphrey's back were consistent with her complaints of pain. Hendricks determined Humphrey's pain symptoms “may allow” part-time work with restrictions of no sitting or standing for more than 30 minutes at a time and intermittent walking throughout the day. She recommended an IME or Functional Capacity Examination to determine if Humphrey could function at a higher capacity.

Humphrey believed the cold weather caused in an increase in her pain and, in January 2008, she went to Arizona. While there, she experienced lower levels of pain and increased her level of activity. She returned to Minnesota in April 2008. In May 2008, she estimated to Dr. Sabers that she is 40% better in the dry heat of Arizona. On examination at that time, Dr. Sabers noted “trace weakness” of the left extensor hallucis longus muscle (EHL) ⁵ but no other obvious weakness in her extremities. He made no notes on her lower back pain or ability to sit or stand. Her diagnosis remained the same: two-level disc degeneration. A bone density study pursued on this visit came back normal.

Upon her return from Arizona, Prudential arranged for Dr. Hadley, an independent, board-certified orthopedic surgeon, to examine Humphrey. Dr. Hadley reviewed Humphrey's medical records, including reports by Dr. Sabers and Dr. Salib, and conducted a physical examination. Dr. Hadley's examination of the spine “revealed no palpable spasm or tenderness.” In her lower extremities, he found no motor weakness, no evidence of muscle atrophy, and no sensory complaints. Humphrey stood throughout the interview and “seem[ed] reluctant to sit.” She was able to walk on her heels and toes, squat and touch the floor between her knees, and reverse her lumbar lordosis. Humphrey indicated she could sit for 10 to 15 minutes at a time and stand for no more than 5 or 10 minutes at a time. According to Dr. Hadley, there is no way to determine the accuracy of these durational limits because they are “entirely subjective.” While complaints of pain associated with prolonged standing or sitting “are consistent with the radiographic diagnosis of multilevel...