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Ramirez v. Liberty Life Assurance Company of Boston

United States District Court, W.D. North Carolina, Charlotte Division

February 6, 2019

ROSA RAMIREZ, Plaintiff,



         THIS MATTER comes before the Court on the parties' cross motions for summary judgment, (Doc. Nos. 23, 25), and the parties' associated briefs and exhibits, (Doc. Nos. 24, 26, 28-32). Also before the Court is Liberty Life Assurance Company of Boston (“Liberty”) and the Wells Fargo and Company Long Term Disability Plan's (“the Plan;” collectively, “Defendants”[1]) Motion to Strike, (Doc. No. 27), and the parties' associated briefs, (Doc. Nos. 32-33).

         I. BACKGROUND

         This is an Employee Retirement Income Security Act (“ERISA”) case in which Rosa Ramirez (“Plaintiff”) contends that Defendants wrongfully denied her long-term disability benefits (“LTD benefits”). Wells Fargo & Company (“Wells”) hired Plaintiff as a Financial Crimes Specialist 2, a sedentary position, on May 26, 2015. (Doc. No.17: Administrative Record [hereinafter, cited as AR] at 47, 707-08).

         A. Onset of Plaintiff's Disability

         After Plaintiff allegedly suffered a mental breakdown following an altercation with her manager at Wells, Plaintiff stopped working at Wells on August 27, 2015. (AR 342, 765). The following day, Plaintiff sought treatment with her primary care physician, Dr. Mary Gentry. (AR 621-20). Dr. Gentry referred Plaintiff to a psychiatrist for additional psychiatric care due to Plaintiff's complaint about “worsening depression and anxiety since starting a new job.” (AR 612). Liberty approved Plaintiff's short-term disability claim in September 2015, with a disability date of August 27, 2015. (AR 766).

         On December 2, 2015, Plaintiff had her first psychiatric assessment with Dr. George Robinette, who diagnosed Plaintiff with anxiety and major depressive order. (AR 724-30). He stated that, “[i]n my opinion, [Plaintiff] requires a higher level of care given the chronicity and severity of her mental illness.” (AR 730). Accordingly, he referred her to Daymark Recovery Services (“Daymark”). (Id.). On December 22, 2015, Plaintiff had her initial assessment with Dr. Michael Arena at Daymark. (AR 292-94). Despite some improvement in January, Plaintiff regressed in February 2016, as Dr. Gentry noted that Plaintiff was “back to doing all of her errands and shopping in the middle of the night” and was having suicidal ideation. (AR 251). Dr. Gentry concluded that Plaintiff should stay out of work through March. (AR 254).

         B. Liberty's Long-Term Disability Determination

         Plaintiff completed Liberty's claim forms to be potentially approved for long-term disability benefits (“LTD benefits”) on February 23, 2016. (AR 501-13). On or about March 20, 2016, Dr. Karen Tie, an independent Board-Certified Psychiatrist, reviewed Plaintiff's medical records and spoke with several of Plaintiff's healthcare providers as part of Liberty's initial evaluation of Plaintiff's claim. (AR 351-57). Dr. Tie estimated that Plaintiff would experience impairments in her ability to “(1) respond appropriately to co-workers, supervisors and the general public (2) perform activities within a required schedule without unnecessary distractions from psychiatric impairments and (3) perform tasks when faced with the complexities of workplace conditions.” (AR 352). Dr. Tie also concluded that Plaintiff's prognosis was “fair and return to work within the next month appear[ed] likely, ” adding that Plaintiff's return would be improved if claimant could work with a different supervisor. (AR 352). On March 22, 2016, Liberty approved Plaintiff's claim for LTD benefits, retroactive to February 25, 2016. (AR 342-44). Subsequently, Plaintiff continued to be treated at Daymark by Dr. Gentry.

         During May 2016, Plaintiff's condition appears to have worsened. The record reflects that she experienced violent thoughts and acted abnormally.[2] On May 17, Liberty asked Dr. Tie to complete an addendum on Ramirez's file. (AR 56). On June 1, 2016, Mr. Yount-Plaintiff's treating psychotherapist-indicated to Dr. Tie that Plaintiff required weekly therapy but informed her that Daymark could not meet Plaintiff's needs and that he was considering referring Plaintiff to a different facility. (AR 172). On or about June 5, 2016, Dr. Tie reviewed Plaintiff's records and spoke with Plaintiff's treating providers. (AR 230-35). Dr. Tie's First Addendum to her initial report echoed her prior conclusions. Dr. Tie affirmed Plaintiff's diagnoses of Adjustment Disorder with mixed anxiety and depressed mood and Major Depressive Disorder, Bulimia Nervosa, and rule out diagnoses[3] of Generalized Anxiety Disorder and Social Anxiety Disorder. (AR 230). And she concluded that Plaintiff's “symptoms of depression, fatigue, low energy, tearfulness, lack of motivation, anxiety and poor sleep are of the severity to support impairment in occupational and social functioning.” (Id.). Dr. Tie concluded that Plaintiff was restricted to “no more than Activities of Daily Living” through July 31, 2016, but that “[f]urther medical records from treating psychiatrist and psychotherapist would be important to review for ongoing psychiatric impairment beyond” July 31, 2016. (Id.).

         On three separate occasions-June 15, June 29, and July 6, 2016-Plaintiff failed to attend therapy sessions. (AR 164-65, 171). On June 21, 2016, Plaintiff attended an individual therapy treatment with Mr. Yount, following a one-on-one session with her new psychiatrist, Dr. Tom Pak. (AR 168-70). Plaintiff complained to Dr. Pak that the prescribed amounts of medication caused sedation, but Dr. Pak did not reduce her dosage. (AR 169). Plaintiff told Dr. Pak that she was fearful of germs, and Dr. Pak noted that Plaintiff was wearing a jacket and gloves despite it being 90 degrees outside. (Id.).

         During Plaintiff's one-on-one appointment with Dr. Pak on July 13, 2016, Dr. Pak noted that Plaintiff reported that she continues “to have some mild symptoms of depression and anxiety.” (AR 164). She also reported to Dr. Pak that “recent news about police brutality has made her depression and anxiety worse.” (AR 164). Dr. Pak kept her medication dosage the same, encouraged her to continue therapy at Daymark, and told her to return in two months. (Id.). After her individual session, Plaintiff stayed for group therapy. (Id.). On July 19, 2016, Plaintiff saw Dr. Gentry for a follow-up visit, and Dr. Gentry noted that there was no significant improvement in her energy level despite restarting compliance with her thyroid medication. (AR 186). On July 20, 2016, Plaintiff canceled her group therapy session because she was unable to pay her copay that week. (AR 162). On or about August 9, 2016, Dr. Gentry completed Liberty's restrictions form, confirming that Plaintiff was still restricted from working until released by her psychiatrist. (AR 183).

         As part of Liberty's standard claims practices, Liberty retained G4S Compliance Investigations to conduct surveillance of Plaintiff on two occasions. (AR 211-24). On the first occasion, June 27, 2016, the surveillance sat outside of Plaintiff's residence all day but only observed Plaintiff leave her house to check the mail. (AR 214). On the second surveillance, July 1, 2016, Plaintiff was observed running errands with her boyfriend. (Id.). Liberty used these surveillance reports in its benefits determination.

         On August 15, 2016, Liberty asked Dr. Tie to review Plaintiff's file yet again. (AR 159-60). This was the third records review of Plaintiff's file within a five-month period. In the Second Addendum, dated August 28, 2016, Dr. Tie reviewed records from Dr. Gentry, Dr. Pak, and Mr. Yount from May 2016 through July 20, 2016. (AR 149-51). During this review, Dr. Tie did not speak with Dr. Pak and Mr. Yount- Plaintiff's treating providers-because Daymark's policy prevented the providers from speaking about Plaintiff's restrictions and limitations. (AR 151). Dr. Tie confirmed Plaintiff's diagnoses of Adjustment Disorder with mixed anxiety and depressed mood (as a reaction to stress at work), Major Depressive Disorder, rule out Generalized Anxiety Disorder, rule out Social Anxiety Disorder and Bulimia Nervosa. (AR 151). This time, however, Dr. Tie concluded that “[a]s of 7/13/16, the available medical records do not reasonably support that the claimant's symptoms are of the severity to support impairments, limitations or restrictions secondary to mental health conditions.” (AR 149). She based this on updated medical records- particularly, Dr. Pak's treatment notes dated 7/13/16, which noted that Plaintiff was experiencing “some mild symptoms of depression and anxiety” but also that her concentration and memory were intact and her current medication seemed to be beneficial. (AR 151). “Therefore, the most recent available medical record dated 7/13/16 does not reasonably support impairing conditions such as significant sleep disturbance, anhedonia, amotivation, loss of appetite, significant decreased energy or significant problems with concentration resulting from mental health disorders.” (Id.). In the Second Addendum, Dr. Tie noted Plaintiff's poor compliance with group psychotherapy appointments and reasoned that “a treatment plan which includes a focus on improving resilience may be beneficial to the claimant and could therefore be considered by providers.” (Id.).

         Three days after receiving Dr. Tie's report, Liberty denied Plaintiff's claim on August 31, 2016, determining that Plaintiff was able to perform the duties of her Own Occupation based on Dr. Tie's August 28, 2016 Addendum. (AR 145-48). In the letter Plaintiff received denying her claim, Liberty stated that they reviewed various medical records and treatment notes from May 11 to July 20, 2016. (AR 146-47). The letter also referenced Dr. Tie's conversation with Denise Logan, the Center Director for Daymark. (AR 147). Ms. Logan informed Dr. Tie that, since May 1, 2016, Plaintiff had attended one psychotherapy session and two psychotherapy groups and had canceled all other appointments. (Id.).

         C. Plaintiff's Appeal

         On September 29, 2016, Plaintiff appealed the denial of her claim with the assistance of legal counsel. (AR 143-44). When evaluating her appeal, Liberty considered two additional documents: (1) Dr. Gentry's Certification of Leave form sent to Liberty on September 21, 2016, (Doc. No. 26-1: Ex. A), and (2) a medical record from her treating psychiatrist, Dr. Keith Headen, dated September 22, 2016, (AR 140-42). The first form by Dr. Gentry detailed that Plaintiff suffered from serious health conditions of depression and anxiety with anhedonia, anger, irritability, insomnia, and suicidal ideation. (Doc. No. 26-1 at 4). It further noted that Plaintiff was on a continuous leave of absence and that her return to work date was undetermined. (Doc. No. 26-1 at 4).

         Dr. Headen's notes chronicled that Plaintiff's “chief complaint [was], ‘had conflict with supervisor and lead'” where she “felt that she was bullied and sabotaged” and “[e]ventually she was forced to quit.” (AR 140). He noted that Plaintiff appeared downcast, was “over talkative, ” and near tears during their session. (Id.). He also noted that Plaintiff “tends to isolate herself, her anger is often explosive, ” “has violent dreams and sleeps poorly, ” “has made suicidal attempts, ” and “has a history of suicidal thoughts.” (Id.). “She has encountered a number of therapists and psychiatrists but wasn't able to endure much treatment, ” and “[s]he was resistant to group therapy which was recommended.” (Id.). Dr. Headen diagnosed Plaintiff with Bipolar Mood Disorder and Post Traumatic Stress Disorder (“PTSD”) and noted that Plaintiff “has strong evidence of a character disorder which is a significant factor in the treatment approach and constitutes a co-morbid condition. (Id.). Dr. Headen assigned Plaintiff a GAF of 40, which he noted was the highest GAF in the past 12 months. (AR 141). Dr. Headen directed Plaintiff to continue current medications as prescribed, continue individual or group therapies if indicated, and to return for a follow-up appointment. (AR 141).

         On October 12, 2016, Plaintiff submitted her statement to Liberty in support of her appeal, which recited the same arguments that her counsel made on September 29, 2016. (Compare AR 121-22, with AR 143-44):

My therapist Stephen Yount was aware that I was not ready for group therapy. I was told that if I did not attend group therapy that I would have to find another psychiatrist and therapy. It was stated that I would no longer have one on one therapy. Also any paperwork would not be filled out for my LTD.
I have a new psychiatrist, Dr. Keith Headen, stated that I was not ready for group therapy due to my severe anxiety and deep depression. As far as using the evidence that I missed group psychotherapy appointments to deny her continued disability benefits, my new psychiatrist, Dr. Headen, can show that I was not ready and still [am] not ready for group therapy appointments. I feel mentally unstable being around groups. The new psychiatrist does have the ability to diagnose and fill out the necessary forms to show that I still need a treatment plan that will put me on track to perform duties necessary to go back to work.

(AR 121-22). Plaintiff's appeal requested that Liberty request additional medical records or forms from Dr. Headen, but Liberty refused to contact him and informed Plaintiff that she bore the onus of collecting any additional records.[4] (AR 51-52).

         D. Liberty's Review and Denial of Plaintiff's Appeal

         Instead of asking Dr. Tie to review Dr. Headen's assessment, Liberty sent the claim to a disability nurse case manager (“DNCM”) to conduct a file review on October 14, 2016. (AR 50). The DNCM conducted a “full file” review, including the materials Plaintiff submitted for appeal purposes. (Id.). The DNCM found an absence of medication adjustment or participation by Plaintiff in individual or group therapy, “which would not be expected if reported symptoms were of a severe and impairing nature.” (Id.). Based on review of Plaintiff's file, the DNCM concluded that “there does not appear to be a worsening of symptoms, ” and that “the presence of depression or anxiety with medication or therapy would not in and of itself support the need for [restrictions and limitations].” (Id.). Rather, “the need for [restrictions and limitations] would depend upon the presence of corroborating mental status findings such as psychomotor agitation or retardation, deficits in grooming or eye contact, deficits in cognition, thought disorder, memory, concentration intractable crying spells, or other such signs of functional impairment.” (Id.). Additionally, she noted that “there is no indication [Plaintiff] is unable to care for self, family, or household or participate in social activities.” (Id.). “Therefore, information received on appeal does not alter prior peer review.” (Id.).

         Based on the DNCM's findings, Liberty denied Plaintiff's appeal on November 14, 2016. (AR 109-11). The letter recited the DNCM's determinations and concluded that “the information does not contain mental status exam findings, diagnostic test results or other forms of medical documentation supporting [Plaintiff's] symptoms remained of such severity that they resulted in restrictions or limitations rendering [Plaintiff] unable to perform the duties of [her] occupation after that date.” (AR 109). This letter also informed Plaintiff that she had exhausted her administrative right to review at that time, that no further review would be conducted by Liberty, and that her claim would remain closed. (AR 110).

         On January 8, 2018, Plaintiff filed suit against Defendants alleging (1) that Defendants wrongfully denied her benefits under ERISA, in violation of 29 U.S.C. § 1132 and (2) that she is entitled to attorneys' fees and costs under ERISA § 502(g) and 29 U.S.C. § 1132(g). The parties' filed cross summary judgment motions on November 30, 2018, (Doc. Nos. 23, 25), and the Court held oral arguments on these motions on January 18, 2019. Having been full briefed and argued, the motions are now ripe for adjudication.


         “ERISA actions are usually adjudicated on summary judgment rather than at trial.” Vincent v. Lucent Techs., Inc., 733 F.Supp.2d 729, 733-34 (W.D. N.C. 2010), aff'd, 440 Fed.Appx. 227 (4th Cir. 2011). Here, both parties have moved for summary judgment and agree this matter is ripe for summary adjudication.

         Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if it might affect the outcome of the suit under governing law. Id. The movant has the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). This “burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         Once this initial burden is met, the burden shifts to the nonmoving party, which “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. The nonmoving party may not rely upon mere allegations or denials of allegations in the pleadings to defeat a motion for summary judgment, rather it must present sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving party.” Id. at 248; accord Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir. 1995).

         When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Anderson, 477 U.S. at 248-49. “If the evidence is merely colorable or is not significantly probative, ” summary judgment is appropriate. Id. at 249-50 (citations omitted).

         III. ...

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