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Anderson v. Life Insurance Co. of North America

United States District Court, D. Arizona

February 29, 2016

Nannette Fawn Anderson, Plaintiff,
Life Insurance Company of North America, Defendant.



Plaintiff Nannette Anderson (“Anderson”) brings this action to obtain both short term and long term disability benefits under her policy with Defendant Life Insurance Company of North America (“LINA”). The parties filed trial briefs seeking the Court’s decision on the administrative record. (Docs. 27, 28.) After reviewing the administrative record and applicable law, the Court determines that Anderson fails to meet her burden of proof that she was not able to do sedentary work over the relevant time period and is thus not entitled to either short term or long term disability benefits.


I. Anderson’s Position at HUB International Limited

HUB International Limited (“HUB”) hired Anderson as an account manager on May 1, 2012. (1, 3, 605.)[1] Anderson’s essential duties as an account manager according to HUB’s job description included working “closely with . . . HUB personnel on all aspects of client service[ and] marketing, ” handling all “preparation and implementation” of assigned accounts, understanding clients’ insurance objectives, staying “abreast of changes in the insurance industry, ” resolving service issues, as well as maintaining one’s current book of business while also developing new business. (605.) The physical requirements of her position as explained in HUB’s job description included being “regularly required to sit; use hands to finger, handle, or feel and talk or hear . . . occasionally lift and/or move up to 10 pounds . . . [as well as] vision abilities . . . [like] close vision and ability to adjust focus.” (607.)

As a benefit of employment, Anderson participated in HUB’s group insurance policy (“Plan”). (See 1; LINAASTD000006.) The Plan was funded by LINA policies. (LINAASTD000006; LINAAPOL000013.) LINA processed claims and made benefit determinations under the Plan. (LINAASTD000006; LINAAPOL000013.) The Plan provided short term disability (“STD”) and long term disability (“LTD”) insurance coverage. (LINAASTD000011; LINAAPOL000019.) The Plan was governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001, et seq. (Docs. 27 at 2, 28 at 16.)

II. LINA Denies Anderson’s Initial STD Claim and Affirms Its Decision on Appeal

At the time Anderson began working for HUB she was in good health and led an active lifestyle which included hiking and traveling. (998.) In January 2013 she began to experience “terrible, debilitating” headaches as well as severe neck pain. (998.) Starting in February 2013, she experienced problems with her speech, memory, and concentration. (998.) And around the same time, Anderson began having trouble maintaining her balance and walking. (998.) Over the month of February, her neck pain increased while new issues of back pain and “extreme fatigue” began. (999.)

Anderson first addressed these symptoms in February 2013 when she visited Dr. Drew Durbin, her family doctor, and complained of “upper back pain.” (1155-56.) Dr. Durbin noted that Anderson had endured “several weeks of constant pain in the mid back region, and . . . the neck.” (1055.) Dr. Durbin ordered x-rays of Anderson’s “cervical and thoracic spine[, ]” and deferred any treatment until the x-ray results came back. (1056.) The cervical x-ray revealed moderate-to-severe “lower cervical degenerative disc space narrowing, ” while the thoracic x-rays revealed “minimal thoracic levocurvature and degenerative change.” (722-23.) On March 5, 2013, Anderson followed up with Dr. Durbin who noted that Anderson’s neck and back pain had continued since her last visit and she now experienced severe diffuse headaches. (1056.) Anderson also reported numbness in her right arm and issues with her voice, concentration, and memory. (1056.) Dr. Durbin referred Anderson for an MRI/CT scan of her brain, and cervical and thoracic spine. (1057.) On March 11, 2013, the results from the CT scan of Anderson’s cervical spine showed “mild to moderate central canal narrowing, ” and “neural foraminal stenosis . . . due to asymmetric . . . uncovertebral spurring and facet hypertrophy.” (784-85.) The CT scan of her thoracic spine revealed “broad-based disc protrusions” that “contribute to at least mild narrowing of the central canal.” (787-88.) The CT scan of Anderson’s brain revealed no abnormalities. (786.)

On March 19, 2013, Dr. Paul Gause of the Spine Institute of Arizona examined Anderson. (753-55.) During the visit, Anderson complained of headaches as well as neck, back, arm, and leg pain. (753.) Dr. Gause, analyzing the CT scans of Anderson’s cervical and thoracic spine, opined that “she does have some degenerative disc disease.” (755.) After examining Anderson’s cervical spine, Dr. Gause noted that except for some tenderness over certain muscles in the cervical spine, palpation seemed normal, while Anderson expressed pain with range of motion although her range of motion was full. (754.) Anderson’s chief complaint was neck pain, and Dr. Gause concluded that her other symptoms like arm pain and headaches were not likely connected to her neck pain. (755.) Dr. Gause recommended she see an ear, nose, and throat (“ENT”) specialist as well as a neurologist and instructed her to begin physical therapy. (755.)

On March 21, 2013, Dr. Christopher Lykins, an ENT specialist, wrote a letter to Dr. Durbin and Dr. Gause regarding his examination of Anderson. (773-74, 875.) Dr. Lykins focused on Anderson’s complaints of throat, mouth, and facial numbness as well as the persistent hoarseness of her voice. (773.) After examining Anderson, Dr. Lykins noted that Anderson did have decreased sensation in her larynx, but ultimately determined that she was “complaining of neurologic symptoms that extend beyond the contributions” of her “cervical spine, ” and recommended an MRI of her brain. (773.) Dr. Lykins also opined that Anderson’s hoarseness may be the “sequela” of her ongoing neurological issues; however, he did not believe the same for her symptoms of facial numbness and headaches. (774.)

Anderson’s last day at HUB was March 26, 2013. (219.) On April 1, 2013, Anderson first contacted LINA to initiate her short term disability (“STD”) claim. (212.) During that initial contact, LINA noted that Anderson complained of “having severe difficulty getting up and walking . . . numbness in back of neck and difficulty swallowing.” (212.)

Upon referral from Dr. Durbin, Anderson next saw Dr. Nida Laurin, a neurologist, on April 1, 2013. (870.) Anderson presented Dr. Laurin with a litany of symptoms including cognitive impediments, numbness throughout her body, trouble balancing, fatigue, and back pain. (870.) After examining Anderson, however, Dr. Laurin determined that while she does have “degenerative spine disease with some mild canal narrowing, ” her neurological examination was otherwise “completely normal.” (871.)

On April 5, 2013, Anderson underwent an MRI of her brain at the instruction of Dr. Lykins. (782.) The imaging company distributed the radiology report to Dr. Lykins, Dr. Durbin, Dr. Laurin, and Dr. Gause. (782.) The report noted no abnormalities. (782.)

Anderson admitted herself to the Mayo Clinic on April 16, 2013. (701.) Anderson complained primarily of shortness of breath, chest pain, and difficulty talking, but she also complained of migratory pain, generalized numbness throughout her body, mental fogginess, decreased memory and concentration, and trouble walking. (689, 694.) As a result of her chest pain, the clinic admitted her for observation. (702.) Anderson underwent various cardiac tests which cleared her of any cardiac issues. (689, 696.) However, during her stay at the clinic, her migratory pain and numbness intensified causing the clinic to consult Dr. Amelia Adcock, a neurologist. (689.)

In her April 18, 2013 report, Dr. Adcock outlined Anderson’s previous care, and marked down that Anderson did not follow up with her previous neurologists “because she felt they were dismissive of her symptoms.” (690.) Dr. Adcock examined Anderson, and noted that she complained of a headache with “7/10 [pain], although she appears in no acute distress.” (691.) Dr. Adcock further explained that Anderson seemed “to have no difficulty with recall, ” and “cogently describe[d] her medical history.” (691.) After completing her examination, Dr. Adcock described Anderson as someone with “migratory multifocal complaints and history of untreated fibromyalgia with essentially normal neurologic exam.” (691.) Dr. Adcock added that she did “not believe [Anderson] has any serious chronic neurologic condition” since “[h]er exam and clinical history are not consistent with [such a condition].” (691.) In conclusion, Dr. Adcock recommended that as to Anderson’s cognitive complaints she undergo “outpatient neuropsych testing with personality profile” in order to “prov[e] to [her that] her cognition is normal[.]” (692.) Finally, Dr. Adcock prescribed pain medication for Anderson’s headaches, but otherwise attributed her hoarseness and migratory paresthesias to her “clinical syndrome” since at least the hoarseness is “likely nonphysiologic in nature.” (692.)

Anderson remained at the Mayo Clinic until April 19, 2013, on which her attending physician, Dr. Jason Vance, drafted a hospital discharge summary that included a principal diagnosis of “intractable back pain with chronic pain syndrome.” (693.) Dr. Vance also reported a long list of secondary diagnoses. (See 693-94.) As to Anderson’s pain, while under Dr. Vance’s care she was scheduled to undergo a stress test, but Dr. Vance postponed the test due to Anderson’s “acutely worsening pain.” (694.) Dr. Vance then adjusted her pain meds until her pain subsided. (694.) Dr. Vance also noted that generalized numbness persisted throughout Anderson’s time at the clinic; however, she “remained neurologically intact with full strength of bilateral upper and lower extremities on clinical exam.” (695.) As to Anderson’s history of falls, Dr. Vance observed that she “worked with physical therapy, but required minimal assist.” (695.) Dr. Vance also started Anderson on a trial of Cymbalta for her headaches and pain. (692, 697.) Finally, Dr. Vance ordered a speech evaluation to help diagnose Anderson’s issues with hoarseness, which returned normal results. (724.)

On April 18, 2013, Dr. Lykins completed a Medical Request Form evaluating Anderson’s disability claim as to her dysphonia, i.e., difficulty speaking. (875.) Dr. Lykins wrote “none” when asked to state whether dysphonia caused any work related restrictions. (875.)

On April 29, 2013, Anderson followed-up with Dr. Durbin who “told [her] the present available evidence is not consistent with a degenerative process, ” and therefore if she wanted to pursue disability benefits, she “should gather all medical information/evaluation to date to be presented to an examiner who is trained to determine candidacy for disability.” (1061.)

Anderson met with Dr. Seth Kaufman, a neurologist, on May 9, 2013. (479.) Anderson presented a complaint of numbness, pain in her back and neck, headaches, and problems with memory, walking, and talking. (479.) Dr. Kaufman examined Anderson, and observed her speech to be “hypophonic and has decreased fluency, ” but with “[n]ormal naming and repetition.” (482.) Otherwise, Dr. Kaufman ordered up a litany of tests and laboratory studies related to Anderson’s other symptoms. (479-83.) Anderson returned to Dr. Kaufman on June 19, 2013 for a follow up appointment. (474.) She expressed that her symptoms had remained the same since her May visit. (474.) While Dr. Kaufman started Anderson on a new drug for her headaches and noted her degenerative disc issues, Dr. Kaufman made no other abnormal observations. (477.) He ordered a follow-up in 6-8 weeks. (477.) On July 18, 2013, Anderson returned and reported no improvement in her headaches, speech, or cognitive issues. (468.) Dr. Kaufman ordered a DaT scan in order to rule out the possibility of a Parkinson’s Disorder. (472.) Anderson followed-up with Dr. Kaufman for the final time on October 18, 2013, where again, she reported unchanged symptoms except with greater occurrences of lightheadedness. (463.) Dr. Kaufman reported that Anderson’s cognitive testing showed “mild changes but no evidence of dementia.” (463.) However, Anderson’s neuropsychological assessment “revealed slowed speed of information processing[, ] [m]ild impairment of verbal learning and memory[, and] [c]ognitive issues felt to be multifactorial in setting of chronic pain, depression, sleep disturbance.” (466.) Otherwise, all other tests and studies produced normal results. (466.)

Around June 6, 2013, Dr. Scott Taylor, board certified in occupational and preventive medicine, and employed by LINA, reviewed Anderson’s submitted medical records and in a preliminary report found that they failed to provide “documentation of physical or cognitive functional deficits by clinically measurable testing to support [Anderson’s] inability to perform work activities from 03/26/13 forward.” (183.) Nevertheless, Dr. Taylor recommended Anderson be subject to certain restrictions “due to reported unsteadiness” like no climbing, no working at heights, and “no working around/with moving machinery/vehicles.” (183.)

Based on Dr. Taylor’s determination, LINA officially denied Anderson’s STD claim on June 6, 2013. (394.) A short term disability manager, nurse care manager, medical director, and a senior claim manager reviewed Anderson’s file. (395.) The denial detailed what information LINA considered in its review, which included all of the testing and examinations Anderson underwent from March 11, 2013 until May 15, 2013. (395.) LINA summarized the relevant findings and concluded that despite some limitations or restrictions due to her condition, “[t]here was no definite evidence in the medical records that [Anderson] received restrictions or were removed from work activities by [her] treating physicians.” (397.) Accordingly, without “other documentation, the medical records reviewed d[id] not provide documentation of physical or cognitive functional deficits by clinically measureable testing to support [Anderson’s] inability to perform work activities from March 26, 2013 to present.” (397.) On June 17, 2013, Anderson appealed LINA’s STD denial. (814.)

In May 2013, Dr. Chad Campbell took over as Anderson’s family doctor/primary care physician. (519.) Dr. Campbell examined Anderson at least seven times between May 14, 2013 and December 6, 2013. (508, 510, 511, 513, 515, 517, 519.) In May 2013, Dr. Campbell assessed Anderson and noted that her primary ailment was what he described as “unspecified hereditary and idiopathic peripheral neuropathy.” (519, 517, 515, 513.) In his progress notes after Anderson’s third visit on June 24, 2013, Dr. Campbell noted “disability” as the reason for the appointment, and then expressed his treatment recommendations for Anderson’s peripheral neuropathy, which included amongst other things: “No working. . . .” (515.) Starting with Anderson’s July 3, 2013 appointment, Dr. Campbell made similar notes related to the reason for Anderson’s visit, like Anderson “comes in to discuss FMLA [Family and Medical Leave Act] and plan.” (513.) Related notes appear in Anderson’s July 22 and August 27, 2013 progress notes as well. (511, 510 (“needs to get paper work ready for disability”).) In late July, Dr. Campbell began listing headaches as Anderson’s primary ailment and not peripheral neuropathy. (511.)

At Anderson’s request, Dr. Campbell wrote a letter dated May 28, 2013 outlining Anderson’s symptoms and ultimately concluding that “Anderson cannot perform her job functions, nor could she perform a job of minimal or less demand.” (639.) Anderson included the letter as part of her STD appeal. (634.)

Dr. Campbell also wrote a subsequent letter on July 23, 2013 that LINA accounted for in its STD appeal review, which stated that Anderson “ha[d] been diagnosed with chronic migraines, fibromyalgia, degenerative disc disease, spinal stenosis, and an unknown neurologic degenerative disorder which still needs further testing . . . .” (615.) Dr. Campbell concluded that Anderson suffers from various ailments that render her “unable to work in any fashion . . . .” (615.) He further stated that Anderson’s “symptoms started 3/26/15 and have unfortunately not [stopped].” (616.) Dr. Campbell also expressed his hope that eventually she “will gain a lot of her function back and be able to return to work.” (616.) The letter ultimately requested LINA to “look over the situation again and reconsider [its] decision as the frustrations of trying to get this approved do nothing but add to the stress of a patient who needs every ounce of her energy to work on getting a diagnosis and getting better.” (616.)

Dr. Kaufman referred Anderson to Dr. Jeannine Morrone-Strupinsky, a neuropsychologist, for a neuropsychological “evaluation to obtain a quantitative assessment of [Anderson’s] current level of neurocognitive functioning, ” and to assist with diagnosis and treatment. (534.) During the five-hour appointment on July 15, 2013, Anderson underwent extensive neuropsychological testing. (535-36.) Dr. Morrone-Strupinsky also evaluated Anderson’s intellectual functioning by calculating her Full Scale IQ and concluding that she performed in the average range in intellectual functioning, core verbal, and core performance abilities. (536.) Dr. Morrone-Strupinsky’s final impressions stated that Anderson “demonstrated slowed speed of information processing, . . . [v]erbal learning and memory were mildly impaired, where visuospatial learning and memory were average. . . . [F]ine manual dexterity was borderline impaired. Results otherwise were within normal limits.” (537-38.) The “origin of [Anderson’s] cognitive issues likely is multifactorial. Chronic pain, depression, and sleep disturbance can reduce cognitive efficiency.” (538.) Dr. Morrone-Strupinsky recommended that Anderson implement helpful strategies like a day-planner to “circumvent [her] cognitive lapses, ” and suggested that she could benefit from “mindfulness meditation for pain management and improved concentration.” (538.)

Upon a referral from Dr. Adcock, Dr. Dona Locke saw Anderson on July 31, 2013 and conducted a neuropsychometric evaluation. (681.) Dr. Locke’s evaluation tested Anderson’s “premorbid baseline, ” language, attention/concentration, visuospatial, memory, speed, and personality. (683-84.) Anderson fell into the lower average or impaired range on language, attention/concentration, memory, and speed. (683-84.) Dr. Locke opined that Anderson had an abnormal cognitive profile “primarily due to impairment in executive functioning and memory[;]” however, Dr. Locke cautioned that Anderson’s scores may overestimate her cognitive difficulties since she ...

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