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Greenwald v. Liberty Life Assur. Co. of Boston

United States District Court, D. Nebraska

March 20, 2013


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[Copyrighted Material Omitted]

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For Todd Greenwald, Plaintiff: John L. Spray, Sally A. Rasmussen, MATTSON, RICKETTS LAW FIRM, Lincoln, NE.

For Liberty Life Assurance Company of Boston, Defendant: Jill L. Poole, JACKSON, LEWIS LAW FIRM - OMAHA, Omaha, NE; Robert M. Wood, Wendy L. Furhang, PRO HAC VICE, JACKSON, LEWIS LAW FIRM - SOUTH CAROLINA, Greenville, SC.

For Wells Fargo & Company, Wells Fargo & Company Short-Term Disability Plan, Wells Fargo & Company Long-Term Disability Plan, Defendants: Jill L. Poole, JACKSON, LEWIS LAW FIRM - OMAHA, Omaha, NE; Wendy L. Furhang, PRO HAC VICE, Robert M. Wood, JACKSON, LEWIS LAW FIRM - SOUTH CAROLINA, Greenville, SC.

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John M. Gerrard, United States District Judge.

Plaintiff Todd Greenwald brings this case under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Greenwald asserts three claims for relief. His first claim is for benefits under the Wells Fargo Short-Term Disability Plan (the " STD Plan" or " the Plan" ). Greenwald argues that Wells Fargo and Liberty Life Assurance Company of Boston erroneously denied his claim for STD benefits. [1] Previously, the parties agreed to remand Greenwald's second claim, for benefits under the Wells Fargo Long-Term Disability Plan (the " LTD Plan" ), for administrative review. Filing 35. On remand, Liberty Life approved Greenwald's claim for benefits under the LTD Plan, and the parties have since stipulated to dismiss this claim, with prejudice. See filings 60, 81, and 82. Greenwald's third claim seeks statutory penalties under 29 U.S.C. § 1132(c) for Wells Fargo's failure to produce certain plan documents.

The parties have agreed to resolve Greenwald's pending claims as if cross-motions for summary judgment had been filed. See filing 40. Greenwald has also moved to strike (filing 54) portions of an affidavit submitted by defendants (filing 51-1). The Court has considered the pleadings, briefs, administrative record, and the parties' additional evidence (filings 47 and 51). For the reasons discussed below, the Court finds that defendants' decision to deny Greenwald's claim for short-term disability benefits was not supported by substantial evidence, and summary judgment will be entered in favor of Greenwald on his first claim. That claim will be remanded for further administrative proceedings consistent with this opinion. The Court finds, however, that Liberty Life is not a proper defendant to that claim, and Greenwald's first claim will be dismissed as to Liberty Life. The Court further finds that Greenwald is entitled to summary judgment on his claim for statutory penalties. Greenwald has also requested an award of attorney fees under § 1132(g)(1). He may be entitled to such an award, and the Court requests the parties to submit additional briefing on the issue. Finally, Greenwald's motion to strike will be denied as moot.

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The STD Plan was a self-insured plan covered by ERISA; Wells Fargo was the Plan's sponsor and administrator. Filing 48 at ¶ 3; filing 39-3 at 47, 145, 225. Liberty Life was the claims administrator for the STD Plan. Filing 48 at ¶ 2. Greenwald was a long-time employee of Wells Fargo and participated in the STD Plan. Filing 48 at ¶ ¶ 1, 7. He was employed as an " ITS Relationship Manager 2." Filing 39 at 65; filing 39-1 at 148. He was responsible for, among other things, developing and maintaining customer relations for large and complex institutional trust accounts and ensuring that accounts met regulatory and internal banking requirements. Filing 48 at ¶ 5.

Greenwald's position required him to work 8 hours a day and 40 hours a week. Filing 39 at 85. Wells Fargo provided a description of the physical and mental demands of Greenwald's job. Filing 39 at 85. He was required to: " frequently" sit for 3 to 6 hours per day, " occasionally" walk 30 minutes to 3 hours per day, occasionally stand 30 minutes to 3 hours per day, and occasionally drive a car to meet with clients. Filing 39 at 85-86. When Greenwald drove to meet clients, the trips ranged from 110 to 800 miles round-trip. Filing 39-4 at 44. Greenwald's day-to-day duties mostly involved working on a computer, talking on the phone, and attending meetings. Filing 39 at 65.

Before moving to a more detailed discussion of the facts underlying this case, the Court will briefly summarize how the parties arrived before the Court. Greenwald has reported experiencing chronic lower back pain for at least the last 12 years. His back problems were the result of several factors, including scoliosis, muscle weakness in his right leg resulting from surgery to remove a tumor, and degenerative disc disease. Since 2005 he has been prescribed strong pain control medications, undergone multiple spinal surgeries, and participated in various forms of physical therapy.

Shortly before Greenwald filed the claim for STD benefits that underlies this case, he applied for and received STD benefits for an unrelated problem with his neck. On January 5, 2011, Greenwald underwent a planned surgery on his neck: a microdiscectomy and fusion [2] at the C5-6 level. [3] Filing 48 at ¶ 8. Greenwald applied for and received STD benefits from January 12 to January 17. Filing 48 at ¶ 8. Following surgery, he was released by his physician to return to work 4 hours per day from January 18 through January 31. Filing 48 at ¶ 9. Partial STD benefits were also approved for that period of time. Filing 48 at ¶ 9.

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On February 1, 2011, Greenwald returned to work full time. Filing 48 at ¶ 10. Soon after returning to work, Greenwald found he could not perform his job duties. He claims that he experienced fatigue and severe pain as a result of problems with his back and right hip, as well as pain and numbness in his right leg. Filing 48 at ¶ 10. He also claims that the pain medications he was taking made it difficult to concentrate. Greenwald left work on February 23, after working a 5-hour day. Filing 48 at ¶ 10. On February 25, Greenwald reapplied for STD benefits. Filing 48 at ¶ 11. On March 28, his claim was denied on its first review by Liberty Life. Filing 39-1 at 109-112. Greenwald appealed, and the denial was affirmed by Liberty Life on May 2, and affirmed again on the final level of review by Wells Fargo on September 8. Filing 39 at 70-74; filing 39-4 at 17-19.

Before discussing Greenwald's medical history, the Court will review the terms of the STD Plan. The Court will then provide a brief chronological summary of the medical records generated up to Greenwald's February 25, 2011, application for STD benefits. It is worth noting, however, that when Greenwald first submitted his claim, he did not include the majority of these records. After the first denial, the medical records and defendants' eligibility determinations follow a more predictable chronological path.

I. The STD Plan

The STD " Plan Document" and " Summary Plan Description" were contained in one " Benefits Book." [4] Filing 39-3 at 1, 9-48, 143-55, 209-226. Chapter 9 of the Benefits Book was entitled " Short-Term Disability Plan" and explained that it, together with " 'Chapter 1: An introduction to your benefits' and 'Appendix B: Legal notifications' . . . constitute[d] the Summary Plan Description" for the STD Plan. Filing 39-3 at 12, 145. Chapter 1 explained that the Benefits Book contained summary plan descriptions for various benefit plans, but that these summaries could not " replace or change any provision of the actual plan documents." Filing 39-3 at 11 (emphasis supplied). And in the case of a conflict between the summary descriptions and " the official plan document," the official plan document controlled. Filing 39-3 at 11. The Benefits Book also explained how employees could obtain copies of official plan documents. Filing 39-3 at 11. In actual fact, however, there was no separate " official" plan document for the STD Plan. Filing 47 at 4-5; filing 51-1 at ¶ 14.

Appendix B provided that, as plan administrator, Wells Fargo had " full discretionary authority to administer and interpret each plan and may delegate its duties and discretionary authority to certain designated personnel and third parties, including but not limited to the Director of Human Resources and the Director of Compensation and Benefits." Filing 39-3 at 225.

The STD Plan would have replaced 100% of Greenwald's " covered pay" for up to 26 weeks. Filing 39-3 at 151-52; filing 39-4 at 65. It was designed to provide employees with salary replacement if they had a " medically certified health condition," which was defined as a disabling injury or illness that

[i]s documented by clinical evidence as provided and certified by an approved care provider. Clinical evidence may include medical records, medical test results, physical therapy notes, mental health records, and prescription records.

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Prevents [the claimant] from performing the essential functions of [his] own job as regularly scheduled for longer than the STD waiting period.

Filing 39-3 at 145, 148. A condition was classified as " recurrent" if it " starts again within 30 calendar days after [the claimant has] been released to return to work" and was due to the " same cause or complication resulting from the initial medically certified health condition." Filing 39-3 at 150. Defendants treated Greenwald's current claim as a recurrent condition. Filing 57 at 10 n.2. This did not affect his eligibility for benefits, but would have limited the total amount of benefits he could have received. Filing 39-3 at 150.

The STD Plan stated that it was Greenwald's " responsibility to ensure that Liberty receives requested medical proof, which may include medical records, test results, and hospitalization records . . . ." Filing 39-3 at 149. The Plan gave Liberty Life the right to request independent medical examinations, as well as functional, psychological, rehabilitative, and vocational evaluations. Filing 39-3 at 150. Finally, the Plan stated that benefits could end before the maximum payout if, among other reasons, Greenwald failed to provide requested medical records or failed to provide " objective medical proof in a timely manner." Filing 39-3 at 152.

II. Greenwald's Past Medical History

Greenwald's medical history reveals a long struggle with pain caused by complicated back and postural problems. At age 16, he was diagnosed with scoliosis, and in 2011, still had significant curvature in his spine. Filing 39-1 at 42, 81, 88; filing 39-4 at 38. In 1994, Greenwald had a tumor removed from his right upper leg. Filing 39 at 135, 150. This required excision of the anterior compartment of his right thigh, including the femoral nerve, which resulted in a loss of some femoral nerve function, paralysis of the hip flexors, and paresthesia [5] in his right lower extremities. Filing 39 at 132, 135, 150. Greenwald also had significant weakness on his right side in his iliopsoas, quadriceps, and hip flexors, and weak right knee extension. Filing 39 at 132.

Greenwald has dealt with chronic lower back pain for at least the last 12 years. In August 2000, he met with Dr. Brandon Webb (his family physician) to discuss lower back pain. Filing 39-1 at 81. He stated that about twice a year his back would " go out" on him and cause sudden, intense pain. Filing 39-1 at 81. The pain was located in the right lower lumbar area and extended into the gluteal area and coccyx, with some pain radiating into the right lower extremity. Filing 39-1 at 81. It was worse when bending or getting up and down from a chair. Filing 39-1 at 81.

Beginning in January 2005, Greenwald met with several doctors to discuss worsening back pain. On January 11, 2005, he met with Dr. Randon Johnson of the Nebraska Medical Center's Orthopedic Oncology Clinic. Filing 39 at 137. Greenwald described pain in the same areas as in 2000. Filing 39 at 137. It was present when sitting or standing, and he reported difficulty sitting or standing for long. Johnson noted that Greenwald appeared uncomfortable when sitting for too long. Filing 39 at 137. An examination of his back showed point tenderness on the right side at the L2-L3 level, and one trigger point produced electrical signals that radiated down the buttock and leg. X-rays taken that day showed mild to moderate degenerative changes of his right hip and severe degenerative changes at the L2-L3 level, with significant intervertebral narrowing.

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Johnson diagnosed him with degenerative disc disease.

On January 19, 2005, Greenwald met with Dr. Benjamin Gelber, a neurosurgeon. Filing 39 at 135. He again reported that sitting and standing worsened the pain, and that while lying down helped, he had to change position frequently. Filing 39 at 135. Gelber examined Greenwald and noted " considerable paraspinal muscle spasm bilaterally" and tenderness at the right sacroiliac (SI) joint. Gelber reviewed an MRI and found some changes in the upper lumbar spine, and a bulging disc at the L2 level, but no signs of nerve root compression or significant spinal stenosis. [6] Filing 39 at 135; filing 39-1 at 5-7. Gelber concluded that the back pain was related to changes in posture related to weakness in Greenwald's quadriceps and iliopsoas muscles and " other degenerative changes in the spine" which caused a loss of sagittal balance and placed increased stress on the SI joint and spine. Filing 39 at 135. Gelber did not think surgery was warranted and referred Greenwald to physical therapy and recommended a right SI joint injection (an " SI block" ). Filing 39 at 133. Greenwald received the SI block, but it provided no relief. Filing 39 at 134.

On January 31, 2005, Greenwald met with Dr. David Diamant, a physical medicine and rehabilitation pain specialist. Filing 39 at 134. Diamant reviewed the MRI and noted degenerative disc disease, with a loss of hydration in the L4-5 and L5-S1 discs, a loss of height at L5-S1 and L2-3, and a broad-based bulge at L2-3. Diamant administered a second SI block that day.

On February 14, 2005, Greenwald met with Dr. Geoffrey McCullen, a neurosurgeon. Filing 39 at 132. The SI injections and physical therapy had failed to offer significant relief. Filing 39 at 132. McCullen observed that Greenwald was slow in moving from a seated position to standing, and had diffuse tenderness in the lumbosacral area.

Greenwald returned to McCullen on March 1, 2005, after undergoing a lumber discogram. [7] Filing 39 at 131-32; filing 39-1 at 25-26. Like Gelber, McCullen concluded that Greenwald's symptoms were likely the result of scoliosis and asymmetrical muscle function resulting from the surgery on his right hip. Filing 39 at 131. McCullen concluded, " [u]nfortunately, there is no easy solution here." Filing 39 at 131. Greenwald reported that his pain was severe enough that he could not work, and had been off work for 7 weeks. He also stated that the pain medications he was taking made it difficult to concentrate, and that the pain itself was distracting. He could not sit or stand for long. McCullen noted that " [c]learly he would like to return to work," but given his reports of pain, did not believe he could return to work at that time. McCullen referred him to Dr. Mark Dekutoski, a spinal surgeon with the Mayo Clinic.

Greenwald met with Dekutoski beginning in April 2005. Filing 39 at 123. He reported that he could not walk more than 1 block at a time, or stand for more than 3 to 4 minutes at a time. Filing 39 at 123. He reported that his symptoms were worse when riding in a car and that he had difficulty falling asleep. Dekutoski agreed

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that Greenwald's L2-3 disc was severely degenerated and decided to treat it with a fusion. Filing 39 at 114-18. Dekutoski noted that it was " quite understandable" that Greenwald was reporting disabling pain, because his loss of leg muscle required " lumbar flexion for his hip thrust and leg thrust portions of his gait. This basically requires a significant dynamic mobility through this painful degenerative segment." Filing 39 at 119. On May 18, Dekutoski performed a L2-3 lumbar interbody fusion. Filing 39 at 116-17.

Dekutoski's notes reveal that, at some point around May 2005, Greenwald was on temporary disability and " working to become on permanent disability for his back pain." Filing 39 at 128. But the surgery succeeded in improving his right lower back pain. Filing 39 at 105. And following the surgery, Dekutoski advised Greenwald how to recover and return to work. Dekutoski noted that Greenwald was " severely deconditioned" and advised him to work diligently on aerobic conditioning, physical therapy, and strengthening. Filing 39 at 112. Greenwald later reported that he was pleased with the results of the surgery and physical therapy and was able to return to work. Filing 39 at 105.

On July 17, 2006, Greenwald again met with McCullen, this time reporting pain in his left leg. Filing 39 at 105. Although the surgery had helped with the right lower back pain, he reported that he had continued to experience pain in his left lower back which radiated into his left leg. Filing 39 at 105. McCullen noted that these symptoms could be caused by a problem at the L5 level. Greenwald had previously received an epidural steroid injection that did not offer lasting relief. McCullen concluded, " [u]nfortunately, there is no clear-cut option. The patient [has] multiple areas of degenerative condition, any of which could be contributing" to the ongoing pain. McCullen urged him to focus on exercising and to keep his weight down. A week later, Greenwald received another epidural steroid injection at the left L5 level. Filing 39 at 104.

After more conservative treatment failed, Greenwald underwent a second spinal fusion on January 3, 2007, this time at the L5-S1 level. Filing 39-1 at 20; filing 39 at 100. At the follow-up appointment with McCullen on February 5, Greenwald reported that he felt he was making progress, but was in too much pain to return to work. Filing 39 at 100. McCullen forecast that he could return to work half-time in 4 weeks and full time after another 3 weeks, and recommended more physical therapy.

Greenwald next saw McCullen on July 28, 2008. Filing 39-1 at 44. He had suffered an acute onset of increasing back pain while bending over earlier in the month. Filing 39-1 at 20. The pain was located in his right back and groin and down the right leg, and he reported pain when moving and sitting down, and numbness in his right foot. Filing 39-1 at 20. McCullen reviewed an MRI and found that Greenwald's right disc was herniated at the L4-5 level, and that this was causing compression of the right L5 nerve root. Filing 39-1 at 44. Again, epidural steroid injections had provided only limited relief. Filing 39-1 at 44, 46. On August 5, Greenwald underwent a microdiscectomy at the right L4-5 level. Filing 39-1 at 20-23, 44, 83. On August 15, Greenwald met with McCullen's physician assistant, Mike Koebernick. Greenwald reported that the pre-surgery pain was gone, and the numbness in his right foot was improving. Filing 39-1 at 40.

Greenwald next saw McCullen on June 24, 2009, again reporting back pain. Filing 39-1 at 39. An x-ray taken that day showed that his scoliosis had not progressed, and the L2-3 and L5-S1 fusions appeared

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stable. An examination revealed tight posterior muscles, especially on the left. McCullen concluded that the pain was possibly related to disc degeneration, and referred Greenwald to Dr. Phillip Essay, a pain management specialist.

On June 26, 2009, McCullen reviewed an updated lumbar MRI and x-ray of Greenwald's scoliosis taken the day before. Filing 39-1 at 38, 88. He found no recurrent disc herniation at the L4-5 level, and no significant stenosis. Filing 39-1 at 38. He found that there were " elements of degenerative disc change at multiple levels that appear to be mild-moderate." McCullen's only recommendation was to see a pain specialist and a psychologist.

In the fall of 2009, Greenwald injured his shoulder when reaching behind himself. Filing 39-1 at 62. He saw Webb in March 2010, who referred him to an orthopedist, Dr. Douglas Koch. Filing 39-1 at 34-36. Koch treated Greenwald with a cortisone injection in April 2010 and another in September 2010. Filing 39-1 at 33-36. Greenwald was still reporting pain in October, and on October 5, 2010, he met with Koebernick. Filing 39-1 at 32-33. He reported increasing pain in his neck, right shoulder, and right arm that had worsened since August. Filing 39-1 at 32. The pain extended into his upper arm and fingers. The cortisone injections had not provided significant relief, nor had prescription pain control medications. Koebernick noted that Greenwald's symptoms were consistent with C6 radiculopathy. [8]

Greenwald met with McCullen on November 9, 2010. Filing 39-1 at 30. McCullen noted cervical spondylolysis [9] and neural foraminal narrowing [10] at the right C5-6 level. McCullen and Greenwald decided on surgical treatment: an anterior cervical microdiscectomy at the C5-6 level. Filing 39-1 at 17-19. The surgery was performed on January 5, 2011. Filing 48 at ¶ 8.

Greenwald saw Koebernick on February 2, 2011, for a follow-up. Filing 39-1 at 29. Koebernick noted that overall, the surgery had gone well. It had resolved the pain and numbness in Greenwald's right arm, although he still had some neck and intrascapular pain. Koebernick also noted that Greenwald was reporting " a lot of generalized aches and pains he has had this [sic] for years, as well as joint aches." They discussed the possibility of a rheumatological problem.

February 23, 2011, was Greenwald's last day of work. Filing 48 at ¶ 10. On February 25, he met with Webb to discuss problems with chronic pain. Filing 39-1 at 118. Greenwald reported that the pain had become worse over the last year, and had progressed to the point that he did not think he could work. He stated that if he took enough medication to control the pain, he would not be able to focus or function; but without medication, the pain was too intense to focus. His sleep had also become worse, especially over the last month, because he could not find a comfortable position, due to pain in his neck, back, and right lower extremity. And at work, the pain and fatigue were such that he had to lie on the floor and avoid sitting or standing for periods of time. Filing 39-1

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at 118. He was also experiencing paresthesia in his right lower extremity and had recently fallen down a few times as a result. Webb diagnosed him with chronic pain, scoliosis, history of right hip sarcoma, and degenerative disc disease (cervical and lumbar).

III. The Current Claim for STD Benefits

On February 25, 2011, Greenwald called Liberty Life to apply for STD benefits. Filing 39 at 62-63; filing 48 at ¶ 11. He summarized his medical history and ongoing back and leg pain and stated that these had progressed to the point where he was unable to work. Filing 39 at 62-63. He did not know what his treatment plan was, as Webb had simply told him to rest. Filing 39 at 62. And although he had visited a pain management clinic in the past, he was not doing so at that time. Filing 39 at 62-63.

Liberty Life sent a request for medical records to Webb, specifically for updated medical information from February 20, 2011, onward, including diagnostic test results. Filing 39 at 63; filing 39-1 at 128-31. Webb responded by sending a one-page summary of Greenwald's February 25 office visit. Filing 39-1 at 118. This was the only evidence that was submitted in support of Greenwald's claim.

Liberty Life referred Greenwald's claim to Karen Hughes, a " Nurse Case Manager," to review the medical records and Greenwald's reported symptoms. Filing 39 at 62. Hughes found that Greenwald's " restrictions and limitations" were not clear. Filing 39 at 62. She noted that no physical examination had been performed at the February 25, 2011, visit, and that Liberty Life had no records of any treatment plan, referrals to other providers, diagnostic studies, or prescriptions. Filing 39 at 62; see also filing 39-1 at 118. Hughes attempted to contact Webb by telephone but was unable to reach him. Filing 39 at 61-62. So, she mailed a letter to Webb requesting additional information, with a deadline of March 25. Filing 39 at 61; filing 39-1 at 113-15.

When Webb did not respond, Liberty Life determined that Greenwald's claim should be denied. Filing 39 at 60. Liberty Life found that Greenwald had failed to provide exam findings or diagnostic studies to corroborate his self-reported symptoms and that it was therefore unable to determine his restrictions and limitations. Filing 39 at 60; filing 39-1 at 110. Liberty Life notified Greenwald of its decision by letter dated March 28, 2011, and by phone the same day. Filing 39-1 at 109-12; filing 39 at 60. The denial letter informed Greenwald that if he wished to appeal, he should include " all documentation, such as office visit notes and diagnostic test results to include abnormal physical examination findings that would prevent you from performing your job duties [and] any additional information which you feel will support your claim for continued benefits." Filing 39-1 at 111.

On March 28, 2011, shortly after Greenwald was notified of the denial, Webb's office faxed a response to Liberty Life's request for information. Filing 39 at 59-60; filing 39-1 at 105-08. Liberty Life's form had asked Webb to provide: (1) his specific diagnoses with results of diagnostic studies to support Greenwald's reports of intense pain; (2) objective exam findings and testing to support Greenwald's claims of cognitive deficits; (3) Webb's objective physical exam findings, because no such exam was performed on February 25; (4) the specific restrictions and limitations that Webb was placing on Greenwald's activities, with special instructions to address Greenwald's ability to sit, stand, walk, lift, and bend; and (5) any treatment plan to improve Greenwald's functional capabilities and any referrals to a comprehensive pain management program. Filing

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39-1 at 114-15. Despite the amount of information requested, the form stated that Webb should respond " directly on this letter." Filing 39-1 at 114.

As Liberty Life had requested, Webb responded simply by filling out the form. He prefaced his response by stating that he was not a disability determination physician, but Greenwald's long-time family doctor. Filing 39-1 at 107. He diagnosed Greenwald with scoliosis, degenerative disc disease (cervical and lumbar), and right hip sarcoma. Filing 39-1 at 107. In response to the request for diagnostic studies to support these conditions, he stated that he would be sending a copy of Greenwald's medical records.

Webb asked what type of " objective exam" Liberty Life would like to see with regard to Greenwald's claimed cognitive deficits. Filing 39-1 at 107. He wrote that his exam for a mental condition involved his " intuition and trust" in Greenwald, who he had seen for the past 12 years. In response to the request for " objective physical exam findings" Webb stated, " I can send you a recent exam from 12/10 or can have him come back for a focused exam of the areas you request. Again, I am not qualified to do official disability determinations or impairment ratings."

Webb stated that Greenwald's restrictions and limitations were such that he could not sit or stand for more than 30 minutes at a time, walking was limited by leg pain, and that he should avoid lifting more than 20 pounds due to his hip and lower back problems. Filing 39-1 at 108. Webb's plan to improve Greenwald's functional capacities was " rest [and] pain management." Filing 39-1 at 108. Greenwald had not been referred to a comprehensive pain management program, but Webb had discussed the option with him.

On March 29, 2011, Greenwald called Liberty Life and spoke with Kristina Houser, the " return-to-work specialist" handling his case. Filing 39 at 59; filing 52 at ¶ 4. He stated that he wished to appeal and expressed frustration with his condition. Filing 39 at 59. According to Houser's notes of the call, Greenwald " kept asking what he needs to do" but she only advised that she could not recommend treatment and explained the appeals process. Greenwald stated that he had been trying to work with his conditions and pain for 15 years and there was nothing more his physicians could do for him. She also noted that he had " no treatment . . . set up, no plan to get better or back to work. [Greenwald] said he simply cannot perform his job duties any longer . . . ."

On April 1, 2011, Webb's office called Houser to ask if and when he would receive answers to his questions about what kind of objective examination Liberty Life was looking for regarding Greenwald's cognitive deficits and whether it wanted the results of a December 2010 physical exam or a newer " focused" physical examination. Filing 39 at 59. Houser responded only that she was " not able to recommend treatment." Filing 39 at 59. Thereafter Webb faxed Liberty Life the entirety of the medical records discussed above. Filing 39-1 at 1-103; filing 39 at 97-150.

IV. Liberty Life's Second Denial

Liberty Life referred Greenwald's file to Nurse Case Manager Hughes for further review. Filing 39 at 58. Hughes noted that Greenwald had been released to return to work in January 2011 and that the records did not show a worsening of symptoms or change in medications since at least March 2010. Filing 39 at 58. Hughes was unable to determine if Greenwald's conditions supported " long[-]term restrictions and limitations." Liberty Life referred the claim to Dr. Eric Kerstman for an independent peer review. Filing 39

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at 57, 76-77. Kerstman was certified in physical medicine and rehabilitation with a specialty in pain medicine. Filing 39 at 80. Liberty Life asked Kerstman to determine whether Greenwald's conditions translated to restrictions and limitations on his ability to work, whether those restrictions were supported by medical evidence, and to specifically address how they affected his " sustained sedentary capacity." Filing 39 at 83.

In conducting his review, Kerstman spoke briefly with Webb. Webb repeated that he was not a disability expert and stated he had not outlined any specific restrictions or limitations and had no opinion regarding Greenwald's work capacity or whether he was disabled. Filing 39 at 77. Kerstman called and spoke with Koebernick, who also stated that McCullen had placed no specific limitations or restrictions on Greenwald. Kerstman also reported that Koebernick had stated Greenwald's " maximum work capacity is Sedentary Physical Demand Level."

Kerstman reviewed Greenwald's medical records and concluded that they supported diagnoses of chronic neck and lower back pain and scoliosis. Filing 39 at 79. Kerstman concluded that

[t]hese impairments translate to restrictions and limitations of lifting and carrying a maximum of 10 pounds occasionally, sitting for 30 minutes at a time, total sitting for 6 hours per day, standing for 15 minutes at a time, total standing for 1 hour per day, walking for 15 minutes at a time, total walking for 1 hour per day, occasional bending and squatting, occasional reaching overhead and below waist/desk level. No restrictions in reaching at waist/desk level. The claimant should have the ability to perform sustained sedentary capacity work.
The above restrictions are permanent. The above impairments, restrictions, and limitations are secondary to the claimant's spine conditions and are supported by the claimant's symptoms and diagnostic testing.

Filing 39 at 78-79. Kerstman noted that Greenwald was taking OxyContin and Percocet. Filing 39 at 77. He also found that, although Greenwald claimed his pain medications interfered with his ability to focus and function, this was not supported by any objective evidence in the record. Filing 39 at 79.

After receiving Kerstman's review, Liberty Life decided to uphold its denial of Greenwald's claim. Filing 39 at 75. Liberty Life informed Greenwald of the decision in a letter dated May 2, 2011. Filing 39 at 70. The letter reviewed the terms of the Plan and the prior proceedings, and quoted extensively from Kerstman's report. Filing 39 at 70-74. The ...

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