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Reliance on Vocational Consultant Opinion Deemed an Abuse of Discretion – E.D.Mi.

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  • Reliance on Vocational Consultant Opinion Deemed an Abuse of Discretion – E.D.Mi.

    Reliance on Vocational Consultant Opinion Deemed an Abuse of Discretion – E.D.Mi.

    Attached hereto is a case out of the Eastern District of Michigan, Sun v. United of Omaha Life Insurance Company. In this case, plaintiff seeks long term disability benefits. Defendant denied plaintiff’s claim asserting that she was not disabled from performing any occupation. In making its determination, a vocational consultant issued a Labor Market Survey and Transferrable Skills Analysis identifying sedentary jobs that plaintiff could perform. Defendant relied on the reports in deciding to deny plaintiff's appeal. Plaintiff exhausted administrative remedies and filed suit. The court found that Defendant abused its discretion by relying on the vocational consultant’s report to the apparent exclusion of plaintiff’s treating physicians’ opinions.

    In a February 26, 2013 letter, United informed Sun it was terminating her LTD benefits effective April 6, 2013:

    Your file was referred and reviewed by a Medical Consultant. The
    Medical Consultant opined that records indicate you would have
    continued restrictions to include no heavy lifting, pushing, pulling and
    carrying over 10 pounds. She is unable to perform prolonged standing,
    walking, climbing, squatting, crawling and kneeling. Additionally, current
    records do not indicate you would be precluded from lifting up to 10
    pounds occasionally or less than 10 pounds frequently. Furthermore,
    records do not indicate you would be precluded from sitting up to 6 hours
    in an 8-hour workday. Despite these restrictions and limitations, you
    would have the ability to perform a sedentary strength demand
    occupation.

    A Transferable Skills Analysis (“TSA”) was completed using the
    information you provided to us regarding your education, training and
    work experience. After reviewing all of your information, we concluded
    that you have the transferable skills necessary to perform Gainful
    Occupation of a sedentary strength demand.
    ….
    In summary, the medical documentation fails to substantiate a condition
    or conditions that would render you disabled from performing a Gainful
    Occupation of a sedentary strength demand.
    [Doc. 15-2, Pg ID 272-75].

    United does not identify who the Medical Consultant is or who wrote the TSA report that it based its decision on, but the above summary is the verbatim conclusion Jellenik reached in her February 13, 2013 TSA report. [Doc. #15-6; Pg ID 748-54]. Jellenik based her conclusion on the same records United did in its February 26, 2013 letter. She never treated or examined Sun. Furthermore, in the February 26 letter, United does not mention the findings from Sun’s treating physicians who reached the opposite conclusion.

    Jellenik’s findings are not supported by a reasoned explanation based on the evidence.

    Sedentary work is defined by the Department of Labor as exerting up to 10
    pounds of force occasionally (Occasional: activity or condition up to 1/3 of
    the time) and/or negligible amount of force frequently (Frequent: activity or
    condition exists 1/3 to 2/3 of the time) to lift, carry, push, pull or otherwise
    move objects, including the human body. Sedentary work involves sitting,
    most of the time, but may involve walking or standing for brief periods of
    time. Occupations are sedentary if walking and standing are required only
    occasionally and all other sedentary criteria are met.

    [Doc. #15-2; Pg ID 273].

    United defines frequently as 34%-66% of an 8-hour workday. United says “our review of the file does not find support for restrictions or limitations which would prevent [Sun] from performing the material duties of a sedentary occupation from April 6, 2013, and ongoing.”

    However, when Drs. Benenati and Sulich’s reports are read together, they say that Sun cannot perform sedentary or light work on a sustained basis; Sun cannot sit, stand, or walk for longer than 1 hour in an 8-hour workday or 30 minutes at a time; cannot do repetitive movements with her arms, hands, feet, or legs; cannot climb ladders, kneel, crouch, stoop, crawl, or squat. But, Sun can occasionally lift up to 10 pounds, climb stairs, reach overhead, reach forward, and bend. [Id., Pg ID 354-59].

    These reports are in direct contradiction to United’s findings that Sun can sit for 6 hours in an 8-hour workday and that she can lift less than 10 pounds frequently. United does not reach a reasoned conclusion; both of Sun’s treating physicians found significant restrictions in her ability to sit, stand, and walk for prolonged periods. Sun’s medical records do not support United’s findings.

    Sun appealed United’s denial of her claim for LTD benefits. In United’s April 9, 2013 letter to Sun, it explained its reason for denial of the LTD benefits:

    In summary, we agree you were impaired and not able to perform
    the material duties of your occupation as a Registered Nurse for a
    period of time beginning December 29, 2010. The medical
    evidence supports restrictions and limitations through April 5, 2013.
    Our review of the file does not find support for restrictions or
    limitations which would prevent you from performing the material
    duties of a sedentary occupation from April 6, 2013, and ongoing.
    Based on your educational background and experience, you are
    able to meet gainful employment. Therefore, the denial of continued
    benefits was appropriate and the decision is being upheld.

    [Id., Pg ID 244-47].

    The administrative record does not support United’s findings that Sun can perform sedentary work and is not disabled. United ignores findings from Sun’s treating physicians that show Sun is disabled, and instead “cherry-picks” the opinion of Jellenik – a non-examining, vocational consultant – to find evidence that supports a conclusion in their favor. See Spangler v. Lockhead Martin Energy Systems, Inc., 313 F.3d 356, 362 (6th Cir. 2002) (finding the defendant’s decision to terminate LTD benefits “arbitrary and capricious” where it ignored unfavorable medical evidence and relied on “cherrypicked” evidence that was favorable).

    Although United is not required to give treating doctors’ findings deferential weight, United must give them due consideration and have good reasons to reject their opinions. Elliot v. Metro. Life. Ins. Co., 473 F.3d 613, 620-21 (6th Cir. 2006). While United did mention parts of Dr. Benenati’s and Dr. Sulich’s evaluations, they failed to provide good reasons for adopting a non-examining vocational consultant’s opinion over Sun’s treating physicians.

    In its brief, United explains its reason for denying Sun’s LTD benefits:

    United disputes [Sun’s] apparent position that she is totally and
    permanently disabled from performing even identified sedentary jobs
    which would allow for reasonable restrictions with regard to her medical
    conditions. United notes that Dr. Sulich, [Sun’s] rheumatologist, as of
    December 17, 2012, stated that [Sun] had not achieved maximum
    medical improvement, that fundamental changes in [Sun’s] medical
    condition could be expected in more than six months; that his prognosis
    for recovery was “Improved function as course of treatment of Benlysta
    is continued to steroid decreased’. The SSA Decision similarly
    concluded that ‘Medical Improvement is expected with appropriate
    treatment. Consequently, a continuing disability review is recommended
    in 24 months.” On February 1, 2012, [Sun] answered the question
    “What is your employment goal?” with the hopeful response “to Return
    to work as an RN in a non patient care role.” [Sun] has not proved by a
    preponderance of the evidence that she cannot return to work as an RN
    in a non patient care role.

    [Doc. #18, Pg ID 1021].

    United’s decision to terminate LTD benefits based on an expectation or goal of improvement, while failing to provide good reasons for rejecting the opinions of Sun’s treating providers – is arbitrary and capricious. United does not cite any cases which support its position that an expectation or goal for improvement in one’s condition, means a plaintiff is not disabled. Using that rationale here is unsupported, especially where reports by Sun’s treating providers contradict such a finding, and there is no evidence showing that Sun actually was improved to a point where she could perform work on a sustained basis as required.

    United says, “the SSA Decision similarly concluded that ‘Medical Improvement is expected with appropriate treatment.” [Doc. #18, Pg ID 1021]. United reliance on aspirational language in the SSA’s decision is without merit; the SSA also gave great weight to Sun’s treating physicians and found Sun suffers from severe impairments that render her disabled from performing ‘gainful employment.’ [Doc. #15.2, Pg ID 238-42].

    United based its conclusions on aspirational language in medical reports, Sun’s goals, and medical consultants who did not treat or examine Sun, despite ample evidence of disability based on examinations and findings. This leads this Court this conclude that United’s decision to terminate Sun’s LTD benefits was arbitrary and capricious. See Spangler, 313 F.3d at 362; Evans v. Unumprovident Corp., 434 F.3d 866, 877 (6th Cir. 2006) (“[A] plan administrator may not arbitrarily disregard reliable medical evidence proffered by a claimant, including the opinions of a treating physician.”).

    The Court finds by a preponderance of evidence that Sun is entitled to the LTD benefits.
    Attached Files
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