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Smith v. Mutual of Omaha Insurance Co.

United States District Court, D. Arizona

August 4, 2014

Laurie Smith, Plaintiff,
v.
Mutual of Omaha Insurance Company, Defendant.

ORDER

RANER C. COLLINS, District Judge.

Before the Court are Mutual of Omaha's Motion for Decision on the Administrative Order (Doc. 17), Ms. Smith's Motion for Summary Judgment (Doc. 18), and Magistrate Judge Rateau's Report and Recommendation on these two motions (Doc. 24). The Court has reviewed all of the responses, replies and objections to these documents and conducted a de novo of the underlying facts in this case. The Court is prepared to adopt Magistrate Judge Rateau's Report and Recommendation and hereby incorporates Doc. 24 by reference.

Ms. Smith's Objections to Magistrate Judge Rateau's Report and Recommendation

Ms. Smith contends that Magistrate Judge Rateau's Report and Recommendation reaches findings which are not supported by the record due in part to mistakes of fact and conclusions based on an evaluation of the record. (Doc. 25). Specifically, Ms. Smith contends that 1) Judge Rateau's findings that there were no tests conducted after January 2012 is incorrect, 2) Dr. Sullivan's and not Dr. Scherer's opinions as to Ms. Smith's disability should be controlling, and 3) the Administrator's Review was Thorough but Incorrect, to the effect that the Magistrate's Report has multiple errors and the Court should instead find in favor of Ms. Smith.

Ms. Smith Was Not Entitled to Short-Term Disability Benefits After March 26, 2012

Upon the Court's de novo review of all relevant pleadings and the 282 page administrative record submitted, the Court finds that Ms. Smith was not entitled to short-term disability benefits after March 26, 2012.

Magistrate Judge Rateau carefully outlined and addressed all of Ms. Smith's concerns and contentions in her Report and Recommendation. As the Court now sees it, this case essentially boils down to Dr. Scherer's and Dr. Sullivan's competing opinions on whether Ms. Smith was disabled or could perform her job duties with modifications. As Magistrate Judge Rateau correctly found, Dr. Scherer's opinion could be afforded controlling weight in determining that Ms. Smith was not disabled during the relevant time period.

Ms. Smith's arguments to the contrary are not persuasive. First, while there are records of Ms. Smith's abnormal CPK levels conducted after January 2012, this fact alone does nothing to undermine Dr. Scherer's explanation that "[e]levated CPK/aldolase in themselves are not a diagnostic of any specific disorder, and although it can be seen in a variety of neuromuscular conditions, it can also be a normal result of muscle trauma and exercise, " or, more importantly, Dr. Scherer's observations that Ms. Smith "moved about with ease, and did not have any difficulty walking, standing up from the chair, climbing or moving around on the exam table" and "did not appear to be in any kind of distress."

Similarly, Ms. Smith's arguments that Dr. Sullivan's opinions should be controlling instead of Dr. Scherer's are not persuasive. The Court here agrees with Magistrate Judge Rateu's finding that while Ms. Smith's contention that Dr. Scherer's opinions as to Ms. Smith's veracity are in part due to animosity is reasonable, Dr. Scherer's objective records of Ms. Smith's ability to move during her examination are also reasonable. As to Ms. Smith's contention that Dr. Sullivan's opinion should be afforded controlling weight because it is backed by Ms. Smith's irregular lab results, the Court finds this argument unpersuasive because Dr. Scherer's report also acknowledges and explains these irregular lab results to reach a different conclusion.

Finally, Ms. Smith's arguments that the administrator's review was incorrect because it did not afford sufficient weight to Dr. Sullivan's opinions that Ms. Smith was at risk for kidney failure if she were not careful due to her CPK and myoglobin levels is unpersuasive because the administrator analyzed the record in total and evaluated the conflicting opinions.

While there is no doubt Ms. Smith was in pain and had abnormal lab results, Ms. Smith failed to meet her burden that she was disabled per the plan's definition on the relevant dates. Accordingly,

IT IS HEREBY ORDERED adopting Magistrate Judge Rateau's Report and Recommendation (Doc. 24); granting (Doc. 17) Mutual of Omaha's Motion for Decision on the Administrative Record; and denying (Doc. 18) Ms. Smith's Motion for Summary Judgment.

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor of Defendant Mutual of Omaha and close this case.


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