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Wittmann v. Unum Life Insurance Co. of America

United States District Court, E.D. Louisiana

February 21, 2019


         SECTION “F”



         Before 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.


         Anne 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, 2013.[1]

         In 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.

         Soon 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 employment.”

         Information 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.

         Based 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.”

         Unum 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.

         Thereafter, 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 points.”[2]

         Records 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.”

         On July 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 complicated issues.”

         In 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 capacity.[3]

         On 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?
A: No.
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 cognitive deficits.
A: I am not aware of objective data or neurological testing – cognitive problems are patient reported.
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.

         Dr. 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.

         Because 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.

         By 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.

         That 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.”

         On 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.

         As to 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 attorney.

         By 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 25, 2015.

         Unum 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.

         Dr. 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.

         By 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 also advised:

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.

         On 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. Fowler stated:

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.

         Dr. 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 diagnostic impressions:

Major Depressive Episode
Anxiety NOS
Rule out pseudo dementia secondary to depression

         On 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.”

         By 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.[4] 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 requested.
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.

         In 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.”

         To 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 ...

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