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Hall v. Mutual of Omaha Insurance Co.

United States District Court, N.D. Mississippi, Greenville Division

March 22, 2018




         This 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.

         I Procedural History

         On July 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.

         On June 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.

         Each 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.

         On 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 record.

         II Request for Oral Argument

         Local 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).

         In 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 17.

         First, while the administrative record is large, Hall has not shown how oral argument would make deciding the relevant motions easier.

         Second, 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.[1]

         Finally, 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 denied.

         III Applicable Standard

         As 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 omitted).

         Here, 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 56.[2]

         Under 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).

         In 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).

         IV Factual Background

         A. The Plaintiff

         Arlison L. Hall was born in 1965 and earned a bachelor's degree in communications from the University of Tennessee in 1989. AR:1404.[3] 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.

         B. The Policy

         During 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.

         The 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 Partial Disability.
* * *
Total Disability and Totally Disabled for other than pilots means that because of an injury or sickness:
(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.


         C. October 2004 Accident and Initial Benefits Claim

         On 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[4] on January 3, 2005, and a cervical decompression fusion on February 7, 2005. AR:4038. She did not return to work. See AR:4032.

         On 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.

         In 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.

         Mutual approved Hall's claim on March 28, 2005, with the approval retroactive to January 27, 2005. AR:4023-24.

         D. Continued Treatments

         Following 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 pliability.” AR:1520.

         While 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.” AR:1546.

         In 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 which stated:

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 ….


         Hall 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 year.”[5] AR:1553.

         Also, 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 psychiatrist. AR:1563.

         E. Initial Evaluations

         On 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.

         About 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 time.


         On July 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.

         F. Social Security Award

         On 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.

         G. Initial Functional Evaluations

         On 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.

         In the 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 ...

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