Locke v. Standard Ins. Co., CASE NO. 8:14CV2

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Decision Date: 12 September 2014
• Docket Number: CASE NO. 8:14CV2
• Parties: JENNIFER M. LOCKE, Plaintiff, v. STANDARD INSURANCE COMPANY, Defendant.

JENNIFER M. LOCKE, Plaintiff, v. STANDARD INSURANCE COMPANY, Defendant.

CASE NO. 8:14CV2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

September 12, 2014

MEMORANDUM AND ORDER

This matter is before the Court on the Motion for Summary Judgment (Filing No. 20) submitted by Defendant Standard Insurance Company ("Standard"). For the reasons discussed below, the Motion will be granted.

FACTS

Standard's statement of material facts, set out in its brief (Filing No. 28) with pinpoint citations to the evidentiary record (Filing Nos. 22-27) in compliance with NECivR 56.1(a), is not disputed by Plaintiff Jennifer M. Locke ("Locke"), and the following facts are accepted as true for purposes of the pending Motion.

Locke obtained a Disability Insurance Income Policy (the "Policy") from Standard, effective September 23, 2004.¹ The Policy (Filing No. 23 at ECF 2 et seq.) included the following definitions:

Total Disability/Totally Disabled - Because of your Injury or Sickness:

1) You are unable to perform the substantial and material duties of your regular occupation; and

2) You are not engaged in any other gainful occupation; and

3) You are under the regular care of a Physician appropriate for your injury or sickness. This Physician's care requirement will be waived when We receive written proof, satisfactory to Us, that further care would be of no benefit to you.

. . .

Regular Occupation - Your occupation at the time Disability begins. If You have limited Your practice to a professionally recognized specialty in medicine or law, the specialty will be deemed to be Your Regular Occupation.

Id. at ECF 12.

A one-page endorsement to the Policy, that Locke signed and dated on September 23, 2004, set out the following "DISABILITY INCOME POLICY EXCLUSION":

We, Standard Insurance Company, issue this policy on the express condition that We do not assume any risk for Total or Residual Disability of the Insured if either results from:

MENTAL DISORDER: Any mental, emotional or behavioral disorder or condition regardless of the cause (including, biological or biochemical disorder or imbalance of the brain) and regardless of the presence of physical symptoms. Except as excluded below, for the purposes of this definition, mental disorder includes any diagnosis or condition listed in the most current publication of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychological Association. If this publication is no longer available, we reserve the right to use another nationally published manual of similar scope and purpose. Dementia resulting from stroke, trauma, infectious conditions or degenerative changes such as Alzheimer's disease, is not considered to be a Mental Disorder for the purpose of this exclusion.

This means that We will not pay benefits or waive premiums if Total or Residual Disability is contributed to or caused by any of the above, except as expressly noted.

Id. at ECF 9.

On or about November 6, 2012, Locke advised Standard that she intended to make a claim for disability benefits. At the time, she was obtaining in-patient care for Post Traumatic Stress Disorder ("PTSD"), depression, and anxiety, at the Life Healing Center in Santa Fe, New Mexico, following a sexual assault in April 2012.

She identified PTSD and Fibromyalgia² as the conditions contributing to her inability to work. Her treating psychiatrist, Roxana Raicu, M.D., submitted an Attending Physician's Statement in conjunction with Locke's claim for disability benefits. Dr. Raicu identified a primary diagnosis of PTSD and a secondary diagnosis of Major Depressive Disorder. In the statement, Dr. Raicu recommended that Locke stop working because of severe anxiety and limitations in activities of daily living.

Locke submitted an Insured's Statement for individual disability benefits dated December 16, 2012. In her statement, Locke noted that she was a Physician's Assistant and her duties consisted of patient interviews and examinations, chart reviews, and writing medical opinions. At the time she left work³, Locke was employed at the VeteransAdministration, working 20-25 hours per week. Locke stated that her disability was the result of a sickness, and she identified PTSD, first noticed in April 2012, and fibromyalgia, first noticed in January 2009. Locke provided the following narrative as to how her sickness prevented her from working in her occupation: "I have severe anxiety and panic attacks and have difficulty leaving my house. My occupation requires contact with strangers, many men, which trigger flashbacks and anxiety attacks. Fibromyalgia pain and fatigue interfere with daily function, often unable to get out of bed."

As part of its review, Standard submitted Locke's claim to Dan Przybylowski, C.R.C., a Vocational Consultant. Przybylowski determined that Locke's occupation as a Physician's Assistant required light physical strength with minimal other physical demands.

Standard also obtained medical information from Locke's treating physicians. The medical records included notes from Lasting Hope Recovery Center where Locke was admitted on October 15, 2012, with diagnoses of depression and generalized anxiety. She was discharged from Lasting Hope Recovery Center on October 23, 2012, after she showed significant improvements with respect to her mood, anxiety, functionality, and social interactions. The records also included a clinical note from Dr. Michael Feely, M.D., a rheumatologist whom Locke first saw on March 21, 2012. Locke identified aches and pain, stiffness in her hands, and fatigue. Dr. Feely noted that Locke had several tender myofascial trigger points and several features of fibromyalgia, but refrained from making any diagnosis. Dr. Feely did not place restrictions or limitations on Locke's ability to work.

Locke submitted medical records of three additional visits with Dr. Feely on April 24, 2012, July 18, 2012, and January 4, 2013. Dr. Feely did not provide restrictions or limitations on Locke's work or social activities due to fibromyalgia during these visits.Rather, Dr. Feely identified PTSD as the primary cause of Locke's condition. Dr. Feely stated, "I have explained to [Locke] that I feel that her fibromyalgia symptoms are unlikely to improve much unless her PTSD symptoms stabilize . . . . I don't see evidence of an active inflammatory process. I have checked radiographs of her SI joints which showed no significant abnormalities. She has been under a great deal of stress recently and I suspect that this is contributing to her musculoskeletal symptoms . . . ."

In the attending physician's statement, dated January 4, 2013, Dr. Feely diagnosed Locke with fibromyalgia and PTSD. Dr. Feely anticipated that Locke could return to work noting that it "depends on the improvement in her PTSD symptoms." With respect to a question concerning Locke's physical, mental and cognitive limitations, Dr. Feely wrote: "Patient has widespread pain due to her fibromyalgia, though it is her PTSD which limits her ability to work primarily." With respect to physical limitations, Dr. Feely left the section blank. Under physical impairment, Dr. Feely indicated that Locke was precluded from "medium manual activity (15-30%)." Under the section related to Locke's mental limitations and impairments, Dr. Feely stated, "patient has significant loss of physiological, personal and social adjustment (severe limitations)."

In the attending physician's statement, dated January 7, 2013, Lorrie McGill, M.D., wrote that Locke's condition was the "direct result of sexual trauma on 4/8/12," and identified a diagnosis of "Fibromyalgia + PTSD" and migraine headaches. Dr. McGill indicated that Locke was unable to work as of October 5, 2012, because of "severe stress, depression, headaches, suicidal" and "severe psychological stressors."

In the Intake Assessment at Focus on Recovery, dated January 21, 2013, an outpatient therapy program, Locke stated that she was "currently unable to work due to PTSD symptoms and panic attacks."

In the letter to Standard, dated February 21, 2013, Dr. Feely noted that Locke had "a great deal of chronic musculoskeletal pain which I believe to be on the basis of her fibromyalgia. [She] had been able to manage her symptoms relatively well until roughly six months ago at which point she was the victim of a sexual assault. With this unfortunate event she has had worsening of her pain and has been under psychiatric care for post-traumatic stress disorder. There is no doubt in my mind that her somatic symptoms and chronic pain have been much worse since the assault."

The information provided to Standard was reviewed by Ronald Fraback, M.D., a physician board-certified in rheumatology. Dr. Fraback reviewed the medical records and other information in the claim file. In his report, Dr. Fraback accepted that Locke met the American College of Rheumatology criteria for fibromyalgia. Dr. Fraback noted, however, that "while I appreciate the opinion of Dr. Feely, it appears that [Locke's] primary issues are psychiatric. I do not find evidence that her fibromyalgia alone should preclude sedentary to light level work." Dr. Fraback further stated that Locke's inability to work "is primarily due to her PTSD. The fibromyalgia would be contributory."

Locke's file was also reviewed by Esther Gwinnell, M.D., a board certified Psychiatrist. Based on her review, Dr. Gwinnell opined that, "I would accept that an individual with this level of symptomatology from PTSD and depression, requiring first inpatient, then residential, then intensive outpatient treatment, would be too impaired to function at any occupation during this time frame."

In a letter dated March 12, 2013, Standard notified Locke that her inability to work was contributed to or caused by a mental disorder and, therefore, she was not eligible for disability benefits under the Policy. Standard concluded that, "the medical documentation in your file supports that you are disabled...