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  • Need to Elevate Leg Frequently Throughout the Day Causes Claimant...

    Need to Elevate Leg Frequently Throughout the Day Causes Claimant to be Disabled from Any Occupation – E.D. Mi.

    Attached is a case out of the Eastern District of Michigan, Deroo v. Unum Life Insurance Company of America. The case involves a claim for any occupation benefits with defendant. Plaintiff’s disability requires that she elevate her left leg to waist level or above frequently throughout the day. Defendant denied plaintiff’s claim asserting she could perform a sedentary occupation within her restrictions and limitations. The court disagreed:

    The Court finds and concludes that since October 2016 plaintiff has continued to meet the policy’s “unable to perform the duties of any gainful occupation for which you are reasonably fitted” definition of disability because the record contains no credible evidence demonstrating the existence of any nursing jobs that could accommodate plaintiff’s physical impairments. Defendant concedes that plaintiff’s lymphedema prevents her from doing light-level work because the pain and swelling in her leg prevent her from engaging in extensive walking. The great weight of the evidence convinces the Court that plaintiff’s lymphedema also prevents her from doing sedentary-level work (including sedentary work that would provide for a sit/stand option) because she has a clearly demonstrated medical need to elevate her left leg frequently and at will to waist level or higher, and the record contains no credible evidence that jobs exist for which plaintiff is qualified and which can accommodate this need.4

    Defendant concedes that plaintiff is limited to at most sedentary work. It is unclear whether the two occupations defendant believes plaintiff could perform exist. See supra n. 3. But even assuming the positions of Nurse Triage and Medical Claims Review Nurse do exist, the Court finds based on vocational consultant Fuller’s statement (AR at 748) that plaintiff lacks the professional qualifications to perform them.

    Even assuming the Nurse Triage and Medical Claims Review Nurse positions exist and that plaintiff is educated and trained to perform them, and assuming further that plaintiff’s daily use of hydrocodone is not disqualifying (as vocational consultant Fuller indicates), the Court would still find based on the great weight of the evidence that plaintiff cannot perform these jobs because of her need to elevate her left leg to waist or heart level frequently and at will. Defendant acknowledges that plaintiff must elevate her leg to waist level, but it would limit this need to “30 minutes during the workday” or “intermittently during breaks” (AR at 1908). However, the great weight of the evidence supports, and the Court finds, that plaintiff must elevate her left leg much more frequently than this.

    Plaintiff has stated repeatedly that she must elevate her left leg “frequently” and “as needed” and “throughout the day.” See AR at 348-49, 425, 585, 590, 792, 1448, 1794. In February 2014, plaintiff told defendant that she can sit for at most thirty minutes before having to elevate her leg to relieve the pain and swelling (AR at 585). In September 2014, she told vocational consultant Fuller that “throughout the day” she must “elevate my left leg, I alternate it 15 minutes up, 15 minutes down, if it’s up too long it goes totally numb, if it’s down too long there’s pressure and pain” (AR at 698). Dr. Riutta likewise indicated in November 2014 that “[s]welling of the leg only reacts positively when the elevation is at least at waist level, preferably heart level, throughout the day” (AR at 1027). Similarly, Dr. Yoder stated in September 2014 that plaintiff must “elevate it at waist level or higher a good deal of the day” or “a great majority of the day” (AR at 697).

    In September 2016, Dr. Riutta opined that plaintiff could do sedentary work that “allow[ed] for positional changes and elevating the leg at waist level intermittently during breaks” (AR at 1696-97). The Court gives this statement little weight. This opinion was not expressed in narrative form, but as a “yes” answer to defendant’s written question as to whether plaintiff could do sedentary work that offered various physical and mental accommodations. It is not apparent that Dr. Riutta intended to opine specifically on the frequency of plaintiff’s need to elevate her leg, and the term “intermittently during breaks” was not defined in defendant’s inquiry.

    Further, Dr. Riutta’s “yes” answer that plaintiff could work under these conditions is inconsistent with his previous repeated comments that plaintiff cannot sit for extended periods, that the swelling of her leg is aggravated when “the leg is hanging down,” and that leg elevation is necessary “[i]n order to provide a force to eliminate progressive fluid accumulation” (AR at 307, 600-01, 1442). Further, Dr. Riutta’s suggestion that “intermittent” leg raising is sufficient is contradicted by Dr. Yoder who, in September 2014, characterized plaintiff’s swollen leg as a “tree trunk” and indicated that plaintiff could not do even sedentary work because she must elevate her leg “a great majority of the day” (AR at 697). Dr. Yoder repeated this opinion in September 2016 by answering “no” to the same inquiry sent by defendant to Dr. Riutta, with the added explanation (something not provided by Dr. Riutta) that plaintiff had “severe lymphedema & chronic pain creating/causing inability to work effectively” (AR at 1519-20).

    As between Dr. Riutta’s and Dr. Yoder’s September 2016 opinions, the Court finds that of Dr. Yoder to be more persuasive because it is in line with plaintiff’s statements, which have been consistent over time, and with that fact that plaintiff’s condition has changed very little since her disability began. Dr. Riutta noted in April 2014 that plaintiff had achieved maximum medical improvement (AR at 601), and by mid-2016 he was scheduling follow-up appointments at just oneyear intervals (AR at 1431). The records note that plaintiff’s condition over time has been “stable” and “unchanged” (AR at 1429, 1435, 1673, 1843, 1902). Even defendant’s medical consultant, Dr. Beavers, found that the records demonstrated “no significant and lasting improvements” and a “failure to improve” from 2015 to 2017 (AR at 1901-02), a fact ultimately conceded by defendant in its July 2017 denial of plaintiff’s appeal (AR at 1916) – despite having justified its decision to terminate benefits in October 2016 by pointing to alleged “significant improvements in her level of functional capacity” (AR at 1727).

    Aside from Dr. Riutta’s September 2016 opinion (which the Court rejects for the reasons indicated above), the only evidence that plaintiff may need to elevate her leg less frequently than she claims is the ALJ’s finding, in his July 2014 decision, that plaintiff needed to elevate her left leg “to waist level for 30 minutes during the workday” (AR at 689). The Court rejects this finding because it is unsupported by any evidence. The ALJ cited no support for this aspect of his RFC assessment, and the Court is aware of none. Rather, the great weight of the evidence shows that plaintiff must elevate her leg at waist or heart level frequently and at will. And the only evidence specifically quantifying the frequency is plaintiff’s statement that she does so every fifteen minutes (AR at 698). The Court finds that this level of frequency is supported by the evidence.

    In sum, the Court finds and concludes that plaintiff is entitled to LTD benefits because the record contains no evidence that any jobs exist, for which plaintiff is “reasonably fitted by education, training or experience,” which can accommodate plaintiff’s need to raise her left leg, frequently and at will throughout the day, to waist level or higher. The Court specifically finds and concludes that the two jobs identified by defendant, i.e., those of Triage Nurse and Medical Claims Review Nurse, would not accommodate this need, as the only evidence in the record as to these jobs indicates that they would allow plaintiff to raise her leg to waist level much less frequently than she requires, i.e., “for 30 minutes during the workday” or “intermittently during breaks” (AR at 1908, 1915). Accordingly, the Court finds and concludes that defendant’s decision to terminate plaintiff’s LTD benefits in October 2016 was contrary to plaintiff’s entitlement under the policy.
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