United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court are cross motions for summary judgment. For the
reasons that follow, the plaintiff’s motion for summary
judgment is DENIED, and the defendant’s motion for
summary judgment is GRANTED.
Wittmann is a participant to a long-term disability insurance
plan through her employment as an attorney with Baker,
Donelson, Bearman, Caldwell, Berkowitz PC. Unum Life
Insurance Company of America serves as both the administrator
and underwriter of the Plan. On April 7, 2014, Wittmann filed
a claim for disability benefits under the Plan, asserting
that she had been unable to work since December 31,
filing this claim, Wittmann described her medical condition
as “unknown – other than fibromyalgia and
pericarditis,” and identified her first symptoms as
“chest pain, SOB, muscle/joint pain, fatigue,
lightheaded.” When asked what “specific
duties” of her occupation she was unable to perform,
she stated that she was “unable to concentrate”
and that her “physical endurance [wa]s limited due to
pain and fatigue.” In addition, she listed her treating
physicians as: Dr. Frank Cruz, Internal Medicine/Nephrology;
Dr. William Davis, Rheumatologist; Dr. Robert Lizana,
Chiropractor; Dr. Robert Kelly, Physician; and Dr. Charles
Chester, Psychiatrist. Unum acknowledged receipt of
Wittmann’s claim on April 7, 2014.
after, an Attending Physician’s Statement dated April
15, 2014 was submitted by Dr. Cruz, Wittmann’s
internist. He noted that Wittmann had “an as-yet
undiagnosed entity characterized by fatigue, muscle and joint
aches, tightness in the chest, Raynaud’s phenomenon
and, most recently, by cognitive dysfunction.” He
further reported that Wittmann had seen various doctors in
New Orleans and been evaluated by three different
subspecialties at the Mayo Clinic. In response to
Unum’s query about Wittmann’s physical and
behavioral health restrictions and/or limitations, Dr. Cruz
stated: “As of this time she is unable to perform her
usual job. I am not able to predict when she may resume usual
was also submitted by Wittmann’s employer regarding her
job description and duties as an attorney. It was noted that
an attorney at Baker Donelson must possess the following
skills and abilities:
1. Ability to concentrate and pay close attention to detail
for up to 100% of work time.
2. Analytical skills necessary to conduct complex and
detailed analysis of legal matters.
. . .
6. Work requires more than 40 hours per week to perform the
essential duties of the position.
7. Must be able to maintain regular attendance to meet client
and Firm’s needs.
upon this information, Unum concluded that Wittmann’s
occupation was “performed at a sedentary exertional
demand level and require[d] frequent concentration/attention
to detail/focus and multi-tasking.”
next conducted an initial telephone interview with Wittmann
on April 29, 2014. Wittmann advised that she had been
diagnosed with pericarditis in November of 2012, after which
she began to experience “horrible fatigue and muscle
and joint pain.” She further reported that, some days,
the pain was so great that she could not get up and that she
did not get out of bed the day before the interview.
Unum obtained Wittmann’s medical records from her
treating physicians. These records were initially reviewed by
Nora Gregory, a registered nurse, on July 28, 2014. Gregory
noted that Wittmann had undergone an extensive workup at the
Mayo Clinic in February of 2013, during which Dr. Timothy
Niewold, a rheumatologist, reported: “While she has a
number of tender points, I am not completely convinced of a
diagnosis of fibromyalgia.” Gregory also noted that
Wittmann had seen a pulmonologist, cardiologist, and
gastroenterologist with no significant abnormalities noted.
She also reviewed records submitted by Dr. Davis,
Wittmann’s treating rheumatologist, who noted diagnoses
of fibromyalgia, arthralgia, Raynaud phenomenon, and celiac
disease. Ms. Gregory noted that Dr. Davis did not
specifically mention examining tender points to evaluate a
possible diagnosis of fibromyalgia, but rather, stated that
Wittmann “exhibits tenderness” and was
“tender over all myofascial trigger
from Dr. Chester, Wittmann’s psychiatrist, were also
reviewed. Wittmann saw Dr. Chester regularly for her
Attention Deficit Disorder, which he treated with Adderall.
An office visit note dated May 7, 2014 indicated that
Wittmann complained of fatigue, joint pain, and muscle
spasms, and that Dr. Chester recommended Wellbutrin, Elavil,
or Pamelor. Ms. Gregory also reviewed records from the office
of Dr. Robert Lizana and Dr. Robert Kelly. These notes
reflected that Wittmann was treated for chest pain and
“all over muscle pain.”
31, 2014, Unum wrote to Dr. Davis to request clarification
regarding Wittmann’s functional capacity as an
attorney. When asked whether Wittmann was able to perform the
occupational demands of her job on a full-time basis, Dr.
Davis stated that he was “uncertain.” However, he
went to explain that “she has chronic pain and fatigue
that likely impair her ability to focus for 8 hours on
addition, Dr. Tony Smith, an Unum physician board certified
in Family Medicine, attempted to contact Dr. Cruz in August
of 2014 to discuss Wittmann’s condition. After several
failed attempts to reach Dr. Cruz by telephone, Dr. Smith
wrote to him on August 4, 2014, inquiring as to what medical
conditions precluded Wittmann from returning to work
full-time. By letter dated August 21, 2014, Unum advised
Wittmann that it would pay benefits under a reservation of
rights pending further evaluation of her claim; at that time,
Unum was still attempting to contact Dr. Cruz and Dr. Davis
for clarification regarding Wittmann’s functional
September 12, 2014, Dr. Davis responded to additional
questions posed by Unum’s Dr. Smith. Dr. Davis stated
that Wittmann’s fatigue and pain precluded her return
to work but indicated that he had placed no work restrictions
on her and was unaware of any objective data supporting her
alleged cognitive deficits. Specifically, Dr. Davis answered
the questions as follows:
Q: Are you currently giving Ms. Wittmann any
specific work restrictions?
Q: What medical condition(s) is currently
precluding Ms. Wittmann from returning to work full time?
A: Severe fatigue with intermittent
lightheadedness, diffuse musculoskeletal pain and tenderness.
Q: What is the medical etiology for the
reported pain and fatigue?
A: Unknown – carries descriptive
diagnoses of fibromyalgia and chronic fatigue.
Q: Please discuss/list if applicable, the
medical data currently available that supports the reported
A: I am not aware of objective data or
neurological testing – cognitive problems are patient
Q: Please indicate the time period in which
you plan to release Ms. Wittmann to return to work full time.
A: N/A. Consider functional capacity
assessment and neuropsych testing.
Smith then conducted a medical review of Wittmann’s
file on September 24, 2014. He noted that Wittmann had
undergone extensive medical evaluations and that no
significant abnormalities had been identified. He further
noted that it was unclear why she remained off work and
indicated that he could find no medical data within the
available medical records to support cognitive deficits.
Ultimately, Dr. Smith concluded that the restrictions and
limitations noted by Wittmann’s treating physicians
were not supported by the medical records before him, which
revealed no physical or cognitive deficits.
of the disagreement between Dr. Smith, Unum’s
physician, and Dr. Cruz, Wittmann’s internist, as to
whether medical limitations precluded Wittmann from working,
Unum referred the file to another of its consulting
physicians, Dr. James Bress. After conducting his own review
of the file, Dr. Bress, who is board certified in internal
medicine, agreed that there was no support in the medical
records that any restrictions or limitations prevented
Wittmann from being able to perform the duties of her
occupation. He noted that, despite Dr. Cruz’s statement
that Wittmann suffered from cognitive impairment, there was
no evidence in the medical records of cognitive testing. He
further mentioned that the medical records from
Wittmann’s treating physicians did not contain evidence
describing tender point testing of specific areas to support
a diagnosis of fibromyalgia, and that Dr. Davis provided no
restrictions or limitations.
letter dated October 3, 2014, Unum denied Wittmann’s
claim for long-term disability benefits because it had
determined that she was able to perform the duties of her
occupation as an attorney. In providing Wittmann with
“Information That Supports Our Decision,”
Unum’s October 3, 2014 claim denial letter states:
To assist us in our evaluation we obtained records from Dr.
William Davis, Dr. Robert Lizana/Dr. Robert Kelly, Dr.
Charles Chester, Dr. Frank Cruz, and the Mayo Clinic.
. . .
It has been medically opined that you have undergone an
extensive medical evaluation and testing to date with no
significant abnormalities identified. Further, it is opined
that no medical data within the currently available records
supports cognitive deficits.
We asked a physician, board-certified in family medicine, to
review your file. The physician concluded that your records
do not support Dr. Cruz’s opinion that you are unable
to work . . . . Since the physician did not agree with Dr.
Cruz’s opinion about your functional capacity, the
physician contacted Dr. Cruz to gain a better understanding
of his opinion. Despite their communication, the reviewing
physician and Dr. Cruz were not able to reach an agreement
about the extent of your functional capacity.
At that time, in order to obtain a second opinion, a
physician board-certified in internal medicine reviewed your
file. The second reviewing physician agreed with the
conclusion of the first reviewing physician about your
functional capacity. The following was observed:
• You have undergone an extensive medical evaluation and
testing to date with no significant abnormalities identified.
. . .
• There has been no evidence of any tender point testing
to support a diagnosis of Fibromyalgia. All testing has been
normal. There has been no evidence of pain behavior during
any office visits.
letter also advised Wittmann of her right to request an
appeal, which she exercised on January 26, 2015. In her
appeal letter, Wittmann noted that Unum overlooked evidence
of tender point testing submitted by Dr. Davis and Dr.
Lizana, and misconstrued Dr. Davis’s responses to Dr.
Smith’s questions. Wittmann also stated that she did
not dispute that she could engage in sedentary employment;
however, she asserted that she was unable to focus and
concentrate due to her fatigue and pain. Finally, Wittmann
submitted a letter dated December 10, 2014 from Dr. Chester,
her psychiatrist. Dr. Chester stated that Wittmann had been
diagnosed with fibromyalgia, which caused chronic fatigue and
pain, and impacted her ability to concentrate and remember
details. Dr. Chester went on to conclude: “I do not
believe she has the capacity to function in her job as a
lawyer because of the fatigue, the pain, and the lack of
ability to concentrate.”
April 4, 2015, Dr. Chris Bartlett, an Unum consultant board
certified in family medicine, conducted an “appeal
review” of Wittmann’s file. Dr. Bartlett noted
that Wittmann “may or may not have Fibromyalgia, but
available data does not support functional impairment from
her fatigue, pain, and concentration/memory problems.”
He further stated:
Regardless of the presence or absence of FMS, however, the
insured’s functional capacity is what matters. FMS is
not in and of itself necessarily a disabling diagnosis and
many people with FMS work full-time, controlling their
symptoms with exercise and medications.
Wittmann’s functional capacity, Dr. Bartlett noted that
the “treating physicians’ opinions [regarding]
lack of full-time sedentary work capacity were overly
restrictive based on the results of physical exams and the
absence of data or testing showing impairment from fatigue,
weakness or cognitive deficits.” He further noted that
Wittmann had brought over 100 pages of medical information
with her to the Mayo Clinic, which she was able to discuss
with the specialists, and that she was able to draft a
detailed, extensive appeal letter. Dr. Bartlett also reached
out to Dr. Chester to share his opinion that the medical
records did not support a conclusion that Wittmann’s
fatigue, memory, focus, or cognitive problems precluded her
full-time work capacity as an attorney. In response, Dr.
Chester reported a diagnosis of Somatic Symptom Disorder with
predominant pain, persistent and opined that Wittmann did not
retain functional capacity for full-time work as an attorney.
Dr. Chester explained that her functional capacity was
significantly impacted by physical problems and psychological
sequalae (especially lack of focus), and he offered to order
neuropsychological testing. Dr. Bartlett concluded that the
new information provided by Dr. Chester did not change his
prior opinion that the medical records contained no
documentation of observed cognitive problems that would
preclude functional capacity for full time work as an
letter dated May 29, 2015, Unum advised Wittmann that it was
upholding its determination that she was not entitled to
benefits. In summarizing Wittmann’s medical records,
Unum remarked that her “reports of pain, fatigue, and
cognitive difficulty [we]re out of proportion to the physical
exams, physician observations, diagnostic tests, and lab
studies available for  review.” Unum further stated
that she may have fibromyalgia based upon her reports of
widespread unexplained pain but that the relevant question
was whether her sickness caused her to have limitations on
her functioning and restrictions on her activities. According
to Unum, physicians at the Mayo Clinic and other local
specialists had documented no observed fatigue, confusion, or
cognitive problems and described her as being
“cheerful,” looking “healthy,” and
being “very comfortable.” Unum further explained
that, because the available medical records did not contain
objective documentation of cognitive problems, it could not
conclude that memory, focus, or other cognitive issues
precluded her from performing her occupation as an attorney.
Unum also stated that, “[w]hile there is no definitive
test for the presence or absence of fibromyalgia, there is
neuropsychiatric testing which can quantify both cognitive
deficits and the presence or absence of psychiatric
conditions.” Because Wittmann indicated that she had
undergone neuropsychological testing, Unum advised that it
would consider additional information if submitted by June
subsequently received correspondence from Wittmann on June
22, 2015, enclosing the following information: (1) a
neuropsychological evaluation performed by Dr. Michael
Chafetz, Ph.D in Neuropsychology; (2) the results of a sleep
study; and (3) a printout of an Aquatic Home Exercise Program
provided by Ochsner. After performing neuropsychological
testing, Dr. Chafetz noted the follow impressions:
Anne Wittmann is a 55 year old attorney referred for
evaluation for a recent history of memory, confusion, and
word finding problems . . . . She has been diagnosed with
fibromyalgia, and she has a prior diagnosis of ADHD for which
she has been treated. The current neuropsychological findings
show generally intact abilities but are highly variable even
within domains. For example, she is showing widely varying
attentional abilities, but she demonstrates strong attention
and concentration on tasks that have a high requirement for
sustained attention and concentration. Her executive
abilities and problem solving are strong, and she is showing
quick and agile processing speed. Her memory processes are
again variable, but she is not showing memory dysfunction.
Language and reading abilities are generally strong and at
expected levels. She does not have pronounced deficits in any
neurocognitive domain. While she is showing occasional
attentional lapses, or cognitive inefficiencies, these may be
at least in part attributable to a prior history of ADHD that
is primarily attentional in nature. However, she is also
fatigued, and is suffering from depression and poor sleep.
The poor sleep itself likely exacerbates her pain condition
and her depressive symptomology, making her more
distractible. In this, she is likely in a negative spiral.
Her reported memory and concentration problems, and
problems with “disconnecting” are not borne out
by testing or a history of neuropathology.
Emphasis added. Dr. Chafetz concluded by listing the
following diagnostic considerations: History of ADHD,
Insomnia, Depressive Disorder, History of Fibromyalgia, Neck
Injury and Surgery, Chronic Fatigue.
Bartlett reviewed this new information but stated that it did
not change his opinion regarding Wittmann’s capacity to
perform her occupation as an attorney. He also noted that the
diagnoses of depression and Somatic Symptom Disorder, as
described by Dr. Chester, would be reviewed by Dr. Jana
Zimmerman, Unum’s psychologist. In reviewing
Wittmann’s file on July 13, 2015, Dr. Zimmerman
concluded that “the totality of the information
indicated a psychological contribution inclusive of
depression and somatic focus but not impairment as of 10/3/14
and beyond.” She noted that, as reported by Dr.
Chafetz, the neuropsychological test results did not support
Wittmann’s reported memory and concentration problems.
letter dated July 20, 2015, Unum informed Wittmann that it
was again upholding its decision because the “results
d[id] not support reported memory and concentration problems
and/or problems with disconnection or a history of
neuropathology as Dr. Chafetz explained.” That letter
Unum Life Insurance Company of America has completed our
review of your appeal. No. further review is available and
your appeal is now closed.
. . .
If you disagree with this decision, you have a right to bring
a civil suit under section 502(a) of the Employee Retirement
Income Security Act of 1974.
October 24, 2016, before filing suit, Wittmann submitted to
Unum a disability determination by the Social Security
Administration and invited Unum to reconsider its decision
once again. Enclosed with the letter was correspondence from
the SSA dated October 3, 2015, informing Wittmann of her
entitlement to Social Security Disability Income benefits.
Although the SSA correspondence did not explain the basis for
the SSA award, Wittmann provided Unum with a copy of a
Consultative Psychological Evaluation Report prepared by
board-certified psychologist, Dr. William Fowler, in
connection with her claim for SSDI benefits. Dr.
Fowler’s report summarized Wittmann’s
self-reported complaints of muscle and joint pain, fatigue,
and forgetfulness. In terms of Wittmann’s mood, Dr.
She reports that her doctors tell her that she is depressed
although she does not feel depressed. She reports limited
energy however. There are reportedly days that she makes
herself get out of bed and then sits down and cannot seem to
get up from the chair. She reportedly sometimes starts but
cannot bring herself to finish tasks. She denies crying
spells. She does report impaired attention and concentration.
She rates her current depression as a 5 or 6/10. She does
present as dysphoric and worrisome today.
Fowler further noted:
She does report some periods of forgetfulness and confusion
but today shows fairly good ability to carry out cognitive
tasks of memory, although some focus and persistent issues
are noted. She does show what is likely some decline in
attention and concentration. Persistence appears
shortened and pace is slow. Given the cognitive demands of
her profession, it does seem that she would currently have
some difficulty performing work related tasks, including
ability to focus, read, retain, analyze, and recall
information. Complaints of lowered energy, pain, and
fibromyalgia may render her unable to perform even simple job
tasks in a stable, reliable manner.
Emphasis added. Dr. Fowler concluded by noting the following
Major Depressive Episode
Rule out pseudo dementia secondary to depression
October 31, 2016, Unum advised that it would consider the new
information provided. Thereafter, Unum made several attempts
to obtain the SSA file but ultimately never received it.
After reviewing Dr. Fowler’s report on January 17,
2017, Dr. Zimmerman maintained her opinion that the evidence
indicated a psychological contribution but not impairment.
She noted that Dr. Fowler did not mention reviewing
Wittmann’s medical records or the neuropsychological
test results from Dr. Chaftez. She further noted that the
limited information available to Dr. Fowler was not
sufficient to support his “psychiatric diagnostic
impressions or [for him to] rule in or out cognitive
impairment from pseudo-dementia or any other [behavioral
health] or physical etiology.”
letter dated January 24, 2017, Unum granted Wittmann mental
illness disability benefits from June 30, 2014 through June
30, 2016 and stated that it would investigate further to
determine her entitlement to benefits beyond 24 months for a
disability unrelated to mental illness. Unum explained
its decision to Wittmann’s attorney as follows:
You supplied a copy of your client’s Social Security
Disability award letter dated October 3, 2015, and a copy of
the independent exam with Dr. Fowler, psychologist. Dr.
Fowler noted Major Depressive Episodes, Anxiety NOS and rule
out pseudo-dementia secondary to depression. As you know, we
have not received a copy of her Social Security claim file as
In giving significant weight to the Social Security
Administrator’s finding of disability, we have
determined benefits are payable through June 30, 2015 for Ms.
Wittman’s mental illness disability.
response, Wittmann’s attorney advised Unum that
Wittmann had not made a claim for a disability due to mental
illness and that the reports of Dr. Fowler and Dr. Chafetz
did not support the existence of an impairing psychiatric
condition. The letter also indicated that Wittmann would
provide updated medical records. On May 12, 2017, Dr.
Chester, Wittmann’s psychiatrist, submitted updated
records, along with a cover sheet stating: “FYI: I hope
you are also getting info from ALL HER OTHER
MD’S.” Among the records submitted by Dr. Chester
include a May 22, 2015 office visit note in which he opined
that Dr. Chafetz’s neuropsychological testing would
“probably not help her to be
‘disabled’” and a July 20, 2016 note in
which he reported: “Fatigue is worse. Still in a lot of
pain. She sleeps all the time.” Unum also received a
letter from Susan Costa, Wittmann’s massage therapist,
who reported that Wittmann’s muscles “are
contracted from head to toe” and that the “fascia
is thick and congested,” which “is consistent
with a client that would have an acute muscle injury or
chronic muscle instability.”
further assess Wittmann’s alleged inability to work due
to a physical condition, Unum retained Hub Enterprises, Inc.
to surveil Wittmann on Wednesday, July 12, 2017 and Thursday,
July 13, 2017 from the early morning through the afternoon
hours. According to the investigator’s report, Wittmann
was observed receiving a package from a delivery person while
standing in her doorway and walking onto her patio to ...