Weisner v. Liberty Life Assurance Co. of Bos.
| Decision Date | 28 June 2016 |
| Docket Number | CIVIL NO. JKB-15-2545 |
| Citation | 192 F.Supp.3d 601 |
| Parties | Andrew WEISNER, Plaintiff v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant |
| Court | U.S. District Court — District of Maryland |
Keith R. Siskind, Steinhardt, Siskind and Associates, LLC, Glen Burnie, MD, for Plaintiff.
Henry Mark Stichel, Gohn Hankey Stichel & Berlage LLP, Baltimore, MD, for Defendant.
Andrew Weisner ("Plaintiff") brought an action against Liberty Life Assurance Company of Boston ("Defendant"), pursuant to section 502(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA") of 1974, as amended, 29 U.S.C. § 1132(a)(1)(B), seeking to recover long-term disability ("LTD") benefits. Now pending before the Court are cross-motions for summary judgment filed by Defendant (ECF No. 14) and Plaintiff (ECF No. 19). The issues have been briefed (see ECF Nos. 14–1, 19–1, 22 & 23), and no hearing is necessary to resolve these motions, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, both motions will be DENIED, and this case will proceed to a bench trial on the administrative record.
Plaintiff was formerly employed as an auditor (Analyst, Quality Assurance II) for CareFirst BlueCross BlueShield d/b/a CareFirst, Inc. ("CareFirst") (see ECF No. 1 ¶ 7). As a CareFirst employee, Plaintiff was covered by an LTD insurance policy issued by Defendant in September 2012 (#GF3-830-510057-01) (the "Policy"). The parties here agree that the Policy is an employee welfare benefit plan governed by ERISA. See 29 U.S.C. § 1002(1). The Policy's operative language provides as follows:
When [Defendant] receives Proof that a Covered Person is Disabled due to Injury or Sickness and requires the Regular Attendance of a Physician, [Defendant] will pay the Covered Person a Monthly Benefit after the end of the Elimination Period, subject to any other provisions of this policy. The benefit will be paid for the period of Disability if the Covered Person gives to [Defendant] Proof of continued: 1. Disability; 2. Regular Attendance of a Physician; and 3. Appropriate Available Treatment.
(LL000023.2 ) A covered person is "Disabled" within the meaning of the Policy if, during the elimination period (equal to the greater of 180 days or the end of short-term disability coverage) and for twenty-four months thereafter, the person, "as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own Occupation" and, after that initial period, is "unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation." (LL00010.) The Policy defines "Own Occupation" as the covered person's "employment, business, trade or profession" involving duties of the same general character as those he was performing when his disability began: "Own Occupation" is not limited to the person's former job with his employer. (LL000014.) The Policy further defines "Any Occupation" as any occupation for which the covered person "is or becomes reasonably fitted by training, education, experience, age, physical and mental capacity." (LL000009.) Additionally, the Policy defines "Material and Substantial Duties" as those tasks normally required to perform the relevant occupation, provided the tasks "cannot be reasonably eliminated or modified." (LL000013.)
In his capacity as a CareFirst auditor, Plaintiff reviewed credentialing,3 recredentialing, and demographic-update tasks performed by credentialing specialists to ensure that their work product was accurate; he also monitored incoming telephone inquiries, identified procedural/system/training issues based on his audit findings, and served as a subject-matter expert and coach for credentialing personnel. (LL000340–41.) The position required such skills as judgment and decision making; effective communication and advocacy; strong technical expertise; project management; and the ability to "effectively work in a fast paced environment with frequently changing priorities, deadlines, and workloads." (LL000341–42.)
Plaintiff enjoyed his auditing work at CareFirst, describing it as his "dream job." (LL000239.) He claims that he had a "reputation for near perfect accuracy" during his first decade of employment (id. ); his final evaluation for calendar-year 2012 reflected that he consistently met or high-met expectations (see LL000433–38). Yet for calendar-year 2013, Plaintiff's performance plummeted: he failed six out of twelve audits (LL000239), and his evaluation scores reflected that he needed improvement across most categories (see LL000439–45). Plaintiff received his negative evaluation on January 14, 2014; he never returned to work after that date. Instead, on January 15, he submitted a disability claim, citing "neck and back pain, memory loss and confusion, headaches, and depression" (LL000394).
Plaintiff was approved for short-term disability benefits: pursuant to the elimination period as specified in the Policy, the earliest date on which he could qualify for LTD benefits was July 14, 2014. During the interim (and continuing well into 2015), Plaintiff completed a series of psychiatric, neuropsychological, and neurological examinations in an effort to pinpoint the source of his symptoms. On January 13, 2014, Plaintiff met with Dr. Kevin Crutchfield, a neurologist at the Sandra and Malcolm Berman Brain & Spine Institute (the "Berman Institute"): Plaintiff informed Dr. Crutchfield that he had experienced concussions in the past ("too many to count") and suffered from almost daily headaches. (LL000193.) Dr. Crutchfield diagnosed Plaintiff with concussion, cervicalgia, abnormal coordination, saccadic eye movement deficiency, photophobia, headache, and "[d]epression, severe with anxiety without suicidal ideation." (LL000196.)4 Noting that most of Plaintiff's "cognitive and attention difficulties could be explained by his depression," Dr. Crutchfield referred Plaintiff to a neuropsychiatrist at Sheppard Pratt. That neuropsychiatrist, Dr. Margo Lauterbach, worked with Plaintiff throughout the period during which his LTD claim remained pending. Her progress notes reflect Plaintiff's continual complaints about depression, anxiety, and headaches; her notes also reflect Plaintiff's admission that he used cannabis products frequently (against medical advice) and that he was "not interested in developing coping skills or other therapeutic interventions" as he does not "like counseling" (LL000129; see generally LL000120–52). Dr. Lauterbach initially diagnosed Plaintiff with "Mood Disorder NOS" and "Cannabis Abuse" (LL000144); she later upgraded these diagnoses to "Other specified bipolar and related disorder" and "Cannabis use disorder, Severe" (LL000131).
On March 31, 2014, Plaintiff was seen by Dennis Rivenburgh, PA, an associate of Dr. Crutchfield's: Plaintiff informed PA Rivenburgh that he had suffered a head injury on February 22 that he attributed to a concussion, and he complained about his daily headaches and a worsening tremor. (LL000188–92.) PA Rivenburgh referred Plaintiff to Dr. Ivica Ducic of the Plastic Surgery, Nerve & Headache Institute; Dr. Ducic reported that exam results "objectively confirmed" occipital neuritis /neuralgia and "significant tenderness over involved nerves," and he added that Plaintiff may have suffered a direct nerve injury due to head trauma as well as a "traction stretch injury" due to hyperflexion neck trauma. (LL000113.)5 Dr. Ducic recommended occipital nerve surgery, though there is no indication in the record that Plaintiff thereafter underwent any such procedure. However, Plaintiff did receive occipital nerve blocks (i.e. , steroid injections) during the summer of 2014 and again that winter: there is some indication that these injections alleviated Plaintiff's pain, although the results were mixed. (See LL000173–82, 467, 486–88, 575–78, 601–02, 615–18.)
While Plaintiff was undergoing these psychiatric and neurological exams, he also underwent testing for cognitive and behavioral deficits. On April 17, 2014, Plaintiff had a neuropsychological consultation with Dr. S. Marc Testa at the Berman Institute. Dr. Testa found that Plaintiff's intellect was above average but that his processing speed was "slower than expected and significantly weaker than his other intellectual abilities." (LL000160.) Plaintiff's word-list learning and memory functions were "notable for lower than expected," though his free recall was "excellent" and his nonverbal memory was "intact." (Id .) Behaviorally (pursuant to a personality assessment inventory), Plaintiff appeared "likely to be plagued by worry and negative expectations to the degree that his ability to concentrate and attention are significantly compromised." (LL000161.) Dr. Testa diagnosed Plaintiff with generalized anxiety disorder (and with bipolar affective disorder as a "remote diagnostic possibility"). (LL000162.) Interestingly, Dr. Testa opined that Plaintiff's cognitive weaknesses are "not consistent with the cognitive profile described among individuals with multiple concussions" but are instead "likely due to elevated symptoms of anxiety, a tendency to focus on problems that he may not be able to control, and depressive symptoms." (Id. )
Defendant reviewed the above-described medical records in connection with its investigation of Plaintiff's LTD claim. (See LL000388.) Defendant also referred Plaintiff's records for peer review by two independent, board-certified practitioners: a neuropsychologist (Dr. Timothy McManus) and a psychiatrist (Dr. Peter Sugerman). Drs. McManus and Sugerman issued a joint report on September 19, 2014, in which they opined that Plaintiff was not disabled within the meaning of the Policy.
Dr. McManus observed that the record contained no documentation that Plaintiff had experienced the number of concussions he claimed or that he sought medical attention in connection with his alleged February 22, 2014,...
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