United States District Court, N.D. Mississippi, Greenville Division
ARLISON L. HALL PLAINTIFF
MUTUAL OF OMAHA INSURANCE COMPANY DEFENDANT
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
Employee Retirement Income Security Act action is before the
Court on Arlison Hall's motion for judgment on the
administrative record, Doc. #33, and motion for attorney
fees, Doc. #35; and Mutual of Omaha Insurance Company's
motion for summary judgment, Doc. #38.
11, 2016, Arlison Hall filed a complaint in the United States
District Court for the Northern District of Mississippi
against Mutual of Omaha Insurance Company asserting an
Employee Retirement Income Security Act (“ERISA”)
claim for wrongful termination of disability benefits. The
complaint seeks attorney's fees and a “judgment
against the defendant for $2, 624.50 per month for benefits
from July 26, 2015 ….” Doc. #1 at 12.
1, 2017, Hall filed a motion for judgment on the
administrative record, Doc. #33, and a motion for
attorney's fees, Doc. #35. The same day, Mutual filed a
motion for summary judgment. Doc. #38. Subsequently, this
Court, on motions of the parties, extended the briefing
periods for the pending motions and increased by ten pages
the page limitation for briefs on the parties'
dispositive cross-motions. Doc. #49.
party responded in opposition to the other's dispositive
motion. Doc. #50; Doc. #54. Hall's memorandum in support
of her response includes a request for oral argument on the
motions. Doc. #55. Mutual also responded in opposition to
Hall's motion for attorney's fees. Doc. #53.
August 31, 2017, Mutual replied in support of its summary
judgment motion, Doc. #59, and Hall replied in support of her
motion for attorney's fees, Doc. #57. Hall did not reply
in support of her motion for judgment on the administrative
Request for Oral Argument
Rule 7(b)(6)(A) provides, in relevant part, that “[t]he
court will decide motions without a hearing or oral argument
unless otherwise ordered by the court on its own motion or,
in its discretion, upon written request made by counsel in an
easily discernible manner on the face of the motion or
response.” L.U. Civ. R. 7(b)(6)(A). In applying this
rule, courts have considered whether the proposed oral
argument would be either necessary or helpful to resolving
the relevant motion. See, e.g., St. Dominic-Jackson
Mem'l Hosp. v. Sebelius, No. 3:12-cv-832, 2014 WL
8515280, at *4 (S.D.Miss. Mar. 31, 2014) (denying oral
argument because proposed argument neither necessary nor
helpful); Daimler Trucks N. Am. LLC v. McComb Diesel,
Inc., No. 5:15-cv-30, 2016 WL 164615, at *4 (S.D.Miss.
Jan. 13, 2016) (granting oral argument upon finding proposed
argument would be helpful).
seeking oral argument, Hall argues:
[W]ith a 4100 plus page administrative record, oral argument
would benefit the court and make the court's task easier
and supply plaintiff with the opportunity to argue (brief)
those parts of the defense's argument that page
limitations hereof do not permit. More importantly, in a case
of this nature, giving a plaintiff “her day in
court” would seem more than appropriate.
Doc. #55 at 1 (emphasis omitted). Elsewhere in her memorandum
brief, Hall specifies that the forty-five-page limitation
prevented her from properly responding to the last six pages
of Mutual's motion for summary judgment. Id. at
while the administrative record is large, Hall has not shown
how oral argument would make deciding the relevant motions
Hall's inability to respond to Mutual's arguments was
a problem of her counsel's own making. By order of the
Court, “[t]he page limitation for the briefs on the
cross-motions [was] increased by ten (10) pages.” Doc.
#49 at 2. The same order specifically provided that
“[e]ach party's response … on the
cross-motions may not exceed a total of forty-five (45)
pages.” Id. Notwithstanding the clear language
of this order, Hall, apparently believing that the twenty-six
pages of the memorandum accompanying her own motion counted
against the total pages of her response, ended her response
brief after just nineteen pages. While counsel's error is
unfortunate, it does not justify oral argument.
the Court does not believe that giving Hall “her day in
court” renders an oral argument either necessary or
helpful. Accordingly, Hall's request for oral argument is
explained above, the parties have filed two different types
of motions - Hall's motion for judgment on the
administrative record, and Mutual's motion for summary
judgment. A “motion for judgment on the administrative
record” is “a motion that does not appear to be
authorized in the Federal Rules of Civil Procedure.”
Muller v. First Unum Life Ins. Co., 341 F.3d 119,
124 (2d Cir. 2003) (internal quotation marks omitted). Thus,
“[m]any courts have either explicitly or implicitly
treated such motions … as motions for summary judgment
under Rule 56.” Id. However, “it may be
appropriate for the district court to treat such a motion as
requesting essentially a bench trial on the papers with the
District Court acting as the finder of fact. In that
scenario, the district court may make factual findings, but
it must be clear that the parties consent to a bench trial on
the parties' submissions.” O'Hara v.
Nat'l Union Fire Ins. Co. of Pitt., 642 F.3d 110,
116 (2d Cir. 2011) (internal quotation marks and citations
Mutual has not consented to a bench trial on the parties'
submissions. Rather, it asks this Court to treat Hall's
motion as a motion for summary judgment. Under these
circumstances, the Court interprets Hall's motion for
judgment on the administrative record as one for summary
judgment under Federal Rule of Civil Procedure
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care Ltd. v. Groupo Rimar,
844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and material if
its resolution could affect the outcome of the action.”
Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 226 (5th Cir. 2015) (internal quotation marks omitted).
On a motion for summary judgment, a court must
“consider the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in its
favor.” Edwards v. Cont'l Cas. Co., 841
F.3d 360, 363 (5th Cir. 2016).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs, L.L.C.
v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir.
2015) (internal quotation marks and alterations omitted). If
the moving party satisfies this burden, “the non-moving
party must go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id.
(internal quotation marks omitted). “Where the
nonmoving party bears the burden of proof at trial, the
moving party satisfies this initial burden by demonstrating
an absence of evidence to support the nonmoving party's
case.” Celtic Marine Corp. v. James C. Justice
Cos., Inc., 760 F.3d 477, 481 (5th Cir. 2014).
L. Hall was born in 1965 and earned a bachelor's degree
in communications from the University of Tennessee in 1989.
AR:1404. From January 1990 until December 1999,
Hall held a variety of jobs, all in Washington, D.C.
Id. In December 1999, Hall became Director of
Communications for Share Our Strength, a non-profit
organization based in Washington, D.C., dedicated to
eliminating hunger in children. Id.; AR:4036.
the relevant time period, Share Our Strength maintained a
Group Policy (“Policy”) through Mutual. AR:0001.
Under the terms of the Policy, Mutual was granted “the
discretion and the final authority to construe and interpret
the policy.” AR:0007. Pursuant to this provision,
Mutual maintained “the authority to decide all
questions of eligibility and all questions regarding the
amount and payment of any policy benefits within the terms of
the policy as interpreted by Mutual.” Id.
Policy provided for the payment of long-term disability
benefits if an insured became “totally or partially
disabled due to injury or sickness.” AR:0040. Of
relevance here, such benefits terminate on “the day
[the insured] fail[s] to provide … satisfactory proof
of continuous total or partial disability and/or any
earnings.” Id. With regard to disability, the
Policy provided the following definitions:
Partial disability and partially
disabled means that because of injury or sickness
you, while unable to perform the material and substantial
duties of your regular occupation on a full-time basis, are:
(a) performing at least one of the material duties of your
regular occupation or another gainful occupation on a
part-time or full-time basis; and
(b) currently earning between 20% and 80% of your Indexed
Pre-Disability Earnings due to that same injury or sickness.
The loss or restriction of a professional or occupational
license for any reason does not, in itself, constitute
* * *
Total Disability and Totally Disabled for
other than pilots means that because of an injury or
(a) you are unable to perform all of the material duties of
your regular occupation on a full-time basis; and
(b) after a monthly benefit has been paid for 3 years, you
are unable to perform all of the material duties of any
gainful occupation for which you are reasonably fitted by
training, education or experience.
October 2004 Accident and Initial Benefits Claim
October 28, 2004, Hall was involved in an automobile
collision during which she suffered injuries to her lower
back and neck AR:0398, 4032. In the months following the
accident, Hall underwent two surgeries: a lumbar
decompression on January 3, 2005, and a cervical
decompression fusion on February 7, 2005. AR:4038. She did
not return to work. See AR:4032.
March 3, 2005, Hall submitted to Mutual a claim for long-term
disability benefits. AR:4036-37. As part of her claim, Hall
submitted a “Physician's Statement” prepared
by Robert G. Squillante, M.D., an orthopedist. AR:4038-39.
Squillante found that Hall suffered from cervical, lumbar,
scapula, and shoulder pain, and that she was unable to lift,
bend, twist, or reach overhead. Id. However,
Squillante reported a “good” prognosis for
recovery and noted that he expected “fundamental
changes in [Hall's] medical condition” within one
to three months. Id.
support of Hall's application, Regina Cunningham, Share
Our Strength's Human Resources Coordinator, completed a
“Long Term Disability Claim Job Analysis.”
AR:4033-34. Cunningham reported that Hall's job required
continuous sitting and occasional
“Lifting/carrying” of an unspecified weight.
AR:4033. However, Cunningham noted that the job could be
performed by alternating sitting and standing and that a
co-worker could assist with certain unspecified duties.
AR:4034. Under the prompt, “What are the major tasks
requiring use of one or both hands?, ” Cunningham wrote
only “Typing occasionally.” Id.
approved Hall's claim on March 28, 2005, with the
approval retroactive to January 27, 2005. AR:4023-24.
her surgeries, Hall was referred to Fredericksburg Orthopedic
Associates “for aquatic progressing to land physical
therapy.” AR:1491 (emphases omitted). At Hall's
initial appointment on April 4, 2005, a physical therapist
prescribed an eight-week therapy regime involving two or
three visits a week. AR:1492. Hall attended physical therapy
at Fredericksburg Orthopedic Associates regularly from April
until August 22, 2005. See AR:1491-1520. The notes
from her final visit reflect “Improved tissue
attending physical therapy, Hall saw at least two mental
health professionals-Diana King, LCSW, and J. Daniel Byrne,
M.D.-for post-traumatic stress disorder (“PTSD”)
related to the accident. AR:1545-46. King predicted that
“it may take two or more years until [Hall] is able to
return to pre-trauma functioning[, ] which would include any
form of employment.” AR:1545. Byrne felt that Hall
“may not be able to sustain gainful employment and
[may] require disability benefits for up to 24 months.”
August or September of 2005, Hall moved to North Carolina.
AR:1409. On March 22, 2006, Hall underwent a new patient
evaluation at Blue Ridge Clinical Associates. AR:1526. Alan
Spanos, M.D., the evaluating physician, observed restrictions
in Hall's neck and lumbar movements. AR:1526-28. Spanos
diagnosed Hall with (1) a “[d]iffuse pattern of neck,
upper back and low back pain after high speed jolting injury
and subsequent surgery;” (2) PTSD; (3) diabetes; and
(4) depression. AR:1528. Spanos developed a treatment plan
Because of financial predicament till insurance settlement,
our only option is medication with low cost drugs till the
settlement. We can then embark on a proper program of closely
monitored PT using specific treatment modalities as
‘therapeutic probes' to further investigate pain
mechanisms and treatment options. She also needs and deserves
ongoing psychological help for the PTSD, and also ongoing
treatment for the overarching issue of her weight, diabetes
and perhaps hypertension ….
regularly visited Spanos for pain management. AR:1529-31.
During that time, Spanos regularly prescribed Hall
medications for anxiety and pain. Id.; AR:1563.
After approximately a year of treating Hall, Spanos, in an
April 5, 2007, letter to S-1 Group Disability Management
Services, stated that Hall “is unemployable at
present” but that he expected “her to eventually
be well enough to work, perhaps in 6 months to a
in early 2007, Hall experienced a “recurrence of
anxiety and related symptoms, ” which caused Spanos to
refer Hall for treatment to Katherine Wu, M.D., a
February 4, 2008, Paul Kudowitz, M.D., completed a peer
review of Hall's records. AR:1556. In his review,
Kudowitz expressed skepticism that Hall suffered from
“true post-traumatic stress disorder” but stated,
“I do believe that she does have a chronic pain
syndrome.” AR:1558. Kudowitz concluded that while Hall
had the potential “to perform an occupation that is
sedentary in nature, ” her prescription regime (a mix
of painkillers and anti-anxiety medications) precluded any
such employment because it “could affect her ability to
perform physically and cognitively.” Id.
three weeks later, on February 27, 2008, a disability analyst
for Mutual conducted an “Any Occupation
Determination” for Hall. AR:1555. The document notes
that Hall was taking Adderall, Zoloft, Lithium, Xanax,
hydromorphone, hydrocodone, and metformin, and concludes:
At present time ch is unable to work in any capacity due to
the medications she is on and associated side effects. The
medications are responsible for blunting cognitive capacity
and the side effects from the medication may caus[e] her to
have outbursts of anxiety and depression. Peer review of
2/4/08 concluded ch unable to work in any capacity at this
24, 2008, Wu wrote a letter to Hall's counsel stating
that Hall “will not ever be able to sustain regular
employment.” AR:1559. Wu based this conclusion on
diagnoses of PTSD, depression, and chronic pain. Id.
Social Security Award
October 17, 2008, an Administrative Law Judge with the Social
Security Administration issued a decision finding that Hall
suffered from “the following severe impairment(s): post
traumatic stress disorder; major depressive disorder; status
post cervical fusion and lumbar diskectomy - chronic pain
disorder of neck, upper back and shoulders[;] and diabetes
mellitus ….” AR:1594-97. The ALJ found Hall
disabled from the date of her accident based on “[t]he
severity of [her] Major Depressive Disorder and Post
Traumatic Stress Disorder ….” AR:1596.
Initial Functional Evaluations
October 13, 2009, Hall, at Mutual's direction, underwent
an independent medical evaluation with William Lestini, MD.
AR:3238, 3258. Based upon a physical examination and a review
of Hall's medical records, Lestini concluded that
“it would be reasonable for the patient to be able to
do at least sedentary work with no lifting over 10 pounds
occasionally. She should be allowed to change positions at
the work site every hour for short periods.” AR:3240.
However, Lestini noted that this conclusion was “solely
from an orthopedic perspective” and did not include
“other issues such as pain and medication and
stress-related disorders ….” Id.
summer of 2010, Hall moved to Tennessee. See
AR:3149. Before the move, Spanos referred Hall to Joanna
Filchock, M.D., a physician in Farracut, Tennessee, for