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Diaz v. Liberty Life Assurance Company of Boston

United States District Court, S.D. Florida

August 30, 2017

David Diaz, Plaintiff,
v.
Liberty Life Assurance Company of Boston, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Robert N. Scola Jr. United States District Judge

         This matter is before the Court on the parties' cross-motions for summary judgment (ECF Nos. 25, 27). For the reasons explained in this Order, the Plaintiff's Dispositive Motion for Summary Judgment (ECF No. 25) is denied, and the Defendant's Motion for Summary Judgment (ECF No. 27) is granted.

         1. Background

         This is an ERISA benefits denial case. Plaintiff David Diaz worked as a District Manager for JM Family Enterprises, Inc. (“JM Family Enterprises”) from September 13, 2010 through October 15, 2015. (Pl's Statement of Facts ¶¶ 7, 11, ECF No. 26; Def.'s Statement of Facts ¶ 3, ECF No. 28.) JM Family Enterprises sponsors an employee benefit plan that provides employees who become disabled due to injury or sickness with long term disability (“LTD”) benefits. (Def.'s Statement of Facts ¶ 1; Admin. R. at 25, ECF No. 24-1.) Defendant Liberty Life Assurance Company of Boston (“Liberty”) insures the LTD benefits. (Def.'s Statement of Facts ¶ 2.) The LTD policy defines “disabled” as follows:

i. that during the Elimination period and the next 24 months of Disability the Covered person, as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of his Own occupation; and
ii. thereafter, the Covered Person is unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation.

         (Admin. R. at 11, ECF No. 24-1.) The term “Material and Substantial Duties” is defined as “responsibilities that are normally required to perform the Covered Person's Own Occupation, or any other occupation, and cannot be reasonably eliminated or modified.” (Id. at 14.) The “Elimination Period” is defined as “a period of consecutive days of Disability or Partial Disability for which no benefit is payable.” (Id. at 12.) The Elimination Period lasts for 180 days from the first day of disability. (Id. at 6, 12.)

         On October 28, 2014, Diaz was involved in a work-related motor vehicle accident that resulted in chronic neck and low back pain. (Pl.'s Statement of Facts ¶¶ 1-2; Def.'s Statement of Facts ¶ 4.) Diaz submitted a workers' compensation claim and his treating physicians initially recommended work restrictions. (Pl.'s Statement of Facts ¶ 4, Def.'s Statement of Facts ¶ 5.) The restrictions were lifted and Diaz was returned to full-duty status on November 3, 2014. (Def.'s Statement of Facts ¶ 5.) Diaz saw a variety of physicians in multiple specialties over the next year, but he continued to work full-time. (Pl.'s Statement of Facts ¶¶ 14-18; Def.'s Statement of Facts ¶¶ 6-15.) On September 1, 2015, the Plaintiff relocated from Orlando to Tampa, obtaining a transfer within the company. (Def.'s Statement of Facts ¶ 15.) On October 16, 2015, the Plaintiff stopped working. (Id. ¶ 16.) On April 1, 2016, Liberty received Diaz's claim for LTD benefits due to chronic neck and low back pain, degenerative disc disease, muscular spasms, left shoulder pain, and adjustment disorder with mixed anxiety and depressed mood. (Admin. R. at 97-98, ECF No. 24-3; Def.'s Statement of Facts ¶ 19.)

         During its review of Diaz's claim, Liberty obtained a job description from JM Family Enterprises, which was reviewed by a vocational expert. (Admin. R. at 258-262, ECF No. 24-3.) The vocational expert determined that Diaz's occupation was performed at either a sedentary or light level, depending on whether Diaz was traveling or at his office. (Id. at 260-61.) On April 28, 2016, Liberty denied Diaz's claim for LTD benefits, concluding that there was insufficient proof that Diaz had a disability as defined by the policy. (Def.'s Statement of Facts ¶ 29; Pl.'s Statement of Facts ¶¶ 25, 29.) The denial letter stated that a consulting physician and a consulting psychiatrist had reviewed Diaz's medical records. (Admin. R. at 98, ECF No. 24-3.) The denial letter summarized the consulting physician's conversation with one of Diaz's treating physicians, Dr. Abrahams. (Id.) Dr. Abrahams reported that Diaz's progress was difficult to track because “his treatment course was disjointed, ” and he did not return for treatment for approximately three months. (Id.) Diaz later returned for several more appointments. (Id.) Dr. Abrahams reported that Diaz “had difficulty tolerating treatment provided and that improvement as a result was slow.” (Id.) Dr. Abrahams noted that Diaz drove himself to his appointments, but complained of pain. (Id.)

         The denial letter also summarized the consulting physician's conversation with Diaz's physical therapist, John Vincent Esquetta. (Id.) Esquetta reported that assessment of Diaz's strength and motion “was quite difficult given inconsistency in performance and a decrease in voluntary effort with testing.” (Id.) Esquetta reported that Diaz was not compliant with the plan of care, and either cancelled or did not show up for ten appointments, including the final three scheduled appointments. (Id.) Therefore, re-evaluation at the end of the treatment plan was not possible. (Id.) Esquetta reported that Diaz had explained that scheduling the appointments was difficult with his work schedule. (Id.)

         Finally, the denial letter summarized the consulting physician's conversation with another of Diaz's treating physicians, Dr. Molinares. (Id.) Dr. Molinares confirmed that Diaz's primary diagnoses were chronic neck and low back pain, muscular spasm, anxiety and significant depression. (Id.) Dr. Molinares reported that Diaz was no longer working “to allow for treatment of his impairing psychiatric diagnosis.” (Id.) Although Dr. Molinares noted some physical limitations in her last examination of Diaz, she reported that she believed that “a significant part of the problem is his direct supervisor who the claimant reports ‘has been verbally abusive' and that this in combination with his chronic pain syndrome have caused significant exacerbation of his condition.” (Id. at 98-99.) Dr. Molinares opined that once Diaz's depression was under control, he “likely would be able to return to a job situation that was sedentary to light duty ‘as long as he was transferred with a new boss.'” (Id. at 99.) Dr. Molinares recommended a neurosurgical referral, and reported that a previous neurologic evaluation was “reassuring and normal.” (Id.)

         The consulting physician concluded that the information in Diaz's medical records supported the diagnoses for which Diaz submitted his claim, as well as disc protrusions, hypertension, and chronic nicotine dependence. (Id.) However, the consulting physician concluded that “there is no medical basis upon which to conclude that Mr. Diaz's physical condition changed in such a way that it has a significant continuing adverse impact on his usual life activities . . . .” (Id.) In addition, the physician concluded that “there is no medical basis upon which to conclude that restrictions or limitations are medically supported. (Id.)

         The consulting psychiatrist opined that the information in the medical records supported Diaz's diagnoses of adjustment disorder with mixed anxiety and depressed mood. (Id.) However, there was no evidence in the records of a psychiatric diagnosis or impairment until March 1, 2016. (Id.) The March 1, 2016 assessment documented that Diaz's symptoms “were directly related to work related stress.” (Id.) In addition, the assessment noted additional psychiatric symptoms that “may be indicative of moderate difficulty in social, occupational and interpersonal functioning.” (Id.) The consulting psychiatrist stated that the reported symptoms were likely to improve within six to eight weeks with appropriate treatment, and thus psychiatric impairment was reasonable through the end of April 2016. (Id. at 100.)

         As a result of these reports, Liberty concluded that there was insufficient evidence of medically supported psychiatric or physical restrictions and limitations throughout the entire Elimination Period that precluded Diaz from performing his own occupation. (Id.) Therefore, Diaz did not meet the policy's definition of disability. (Id.)

         On October 25, 2016, Diaz appealed the denial. (Def.'s Statement of Facts ¶ 32; Pl.'s Statement of Undisputed Facts ¶ 41.) Liberty upheld the denial on January 24, 2017. (Def.'s Statement of Facts ¶ 36; Pl.'s Statement of Undisputed Facts ¶ 47.) The denial letter noted that Diaz would have been eligible to receive benefits benefits on April 13, 2016, after the expiration of the Elimination Period. (Admin. R. at 62, ECF No. 24-1.) In support of Diaz's appeal, he submitted a Functional Capacity Evaluation (“FCE”) dated October 4, 2016. (Id. at 65.) He also submitted Dr. Molinares's treatment records. (Id.) The letter noted that Diaz was seen in the emergency room on October 16, 2015 due to chest pain, and subsequently established primary care with Dr. Molinares. (Id.) On October 19, 2015, Dr. Molinares reported “a slightly antalgic gait, ” normal motor strength in the upper and lower extremities, good judgment and insight, and a full range of mood/affect. (Id.) However, on April 10, 2016, Dr. Molinares's records showed that Diaz reported his back pain to be an 8 out of 10. (Id.)

         The denial letter also summarized records that Diaz submitted from Dr. Westerfield, a family medicine and sports doctor. (Id.) On April 4, 2016, Diaz reported “persistent ‘lumbar radiculopathy to the toes including numbness and tingling, ' and reported his constant pain to be 8/10.” (Id.) Dr. Westerfield performed an exam and found that Diaz was not in acute distress and had a normal gait without any assistive devices. (Id.) Dr. Westerfield reported on a workers' compensation form that Diaz was able to perform light duty work, including lifting and carrying up to 20 pounds, with “limited standing/sitting with frequent rest breaks.” (Id.)

         On May 23, 2016, Diaz saw Dr. Williams of Doctor's Pain Management Group and reported persistent pain. (Id.) Diaz had last seen Dr. Williams in April of 2015. (Id.) On July 25, 2016, Diaz reported to a Dr. Barna that his pain was an 8 out of 10, but Dr. Barna reported that Diaz was in no apparent distress. (Id.) Dr. Barna reported on a workers' compensation form that Diaz was able to perform light duty work. (Id.) Diaz also submitted a letter from two physical therapists, who reported that Diaz was evaluated on September 29, 2016, and that neither therapist recommended that Diaz continue therapy because he was “unable to tolerate any treatment.” (Id. at 65-66.)

         On October 4, 2016, Diaz completed the FCE, which showed that he was performing below a sedentary physical demand level. (Id. at 66.) Dr. Molinares agreed with the findings of the FCE. (Id.) Diaz saw Dr. Molinares for a follow-up appointment on October 26, 2016, and reported that pain medication was helping. (Id. at 65.)

         Liberty had all of the medical documentation on file reviewed by an independent psychiatrist and an independent physician. (Id. at 66.) The denial letter noted that no psychiatry or mental health records were submitted on appeal. (Id. at 65.) The independent psychiatrist, Dr. Forehand, concluded that Diaz's diagnosis of adjustment disorder with mixed anxiety and depressed mood was supported by the medical records. (Id. at 66.) However, Dr. Forehand concluded that the reported deficits in concentration were only supported from March 1, 2016 through April 21, 2016, and did not rise to the level of impairment. (Id.) He specifically noted that, although the records show that “deficits were briefly present, ” there was only one statement in the record that indicated any impairment, which was a March 1, 2016 note from Dr. Rodriguez stating “impaired for work/school.” (Id.) Dr. Forehand explained that Diaz's infrequent mental health visits and “absent medication changes” indicated a lack of limitations. (Id.) He concluded that there was no evidence to support psychiatric limitations from October 16, 2015 through the date of the appeal. (Id.)

         With respect to Diaz's physical ailments, the documentation was reviewed on appeal by Dr. Jamie Foland. (Id.) Dr. Foland concluded that the documentation did not support any medical diagnoses causing functional impairment from October 16, 2015 through April 12, 2016. (Id.) From April 13, 2016 forward, Dr. Foland concluded that the scope and severity of Diaz's pain was not consistent with the severity and scope of his medical conditions and the intensity of his treatment. (Id.) The CT scans of Diaz's spine that were performed at the time of his accident did not show any significant abnormalities. (Id.) The EMG/nerve conduction studies conducted after the accident were normal, as was an MRI of Diaz's brain that was performed on November 6, 2015. (Id.) Dr. Newman, a neurologist, evaluated Diaz in October and November of 2015 and did not find any neurological deficits, and the records indicated that Diaz was able to return to work without any restrictions or limitations following the accident. (Id. at 66-67.) Dr. Foland found that this fact, combined with Diaz's non-compliance with physical therapy, indicated that Diaz's functional capability was greater than what he alleged. (Id.) Dr. Foland further noted that Diaz was on limited pain medications at the time of the injury, but was not on any medication when he was seen by Dr. Williams on February 27, 2015 and May 23, 2016. (Id.)

         Dr. Foland opined that the results of the FCE were not consistent with the normal neurological examinations performed by Dr. Westerfield and Dr. Newman, as well as other records in the file. (Id.) Dr. Foland noted that a physical therapist indicated on October 12, 2015 that Diaz “had self-limiting behavior and inconsistencies with therapy, ” which Dr. Foland found to be consistent with the fact that Diaz's FCE results on some of the grip and pinch strength tests were not valid, consistent, or reproducible. (Id.) In addition, Dr. Foland opined that the “accuracy and reliability of functional capacity evaluations have not been adequately researched.” (Id.)

         The denial letter noted that Diaz asserted in his appeal that Liberty had ignored Diaz's limitations of “pain, fatigue, and weakness.” (Id.) The denial letter stated that Dr. Molinares's notes did not indicate that Diaz had reported fatigue. (Id.) With respect to weakness, Dr. Newman, Dr. Barna, and Dr. Molinares all reported that Diaz had normal strength. (Id.) With respect to pain, Dr. Foland ...


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