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Greenberg v. Unum Life Insurance Co. of America

March 27, 2006


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Debra Greenberg seeks to recover long term disability benefits under a group disability insurance policy (the "policy") provided by her former employer, Wolters Kluwer, and administered by defendant, Unum Life Insurance Company of America ("Unum"). Plaintiff claims that she was not given a "full and fair" review of her appeal from Unum's denial her benefits pursuant to 29 U.S.C. § 1133,*fn1 a provision of the Employee Retirement Income Security Act of 1974 ("ERISA"). Presently before this Court are cross motions for judgment on the administrative record. For the reasons set forth below Unum's motion is granted and Greenberg's motion is denied.


The following facts are taken from the administrative record. Disputes are noted.

The plaintiff, Debra Greenberg, was employed as a collection specialist by Walters Kluwer (AR 2).*fn2 In connection with her employment at Walters Kluwer, Greenberg was covered under Unum's group long term disability insurance policy. Under the terms of the policy, an employee is disabled when, she is "limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury" and "has a 20% or more loss in [her] monthly earnings due to the same injury or sickness." (AR 448). According to the policy's glossary the relevant terms are defined as follows:

LIMITED means what you cannot or are unable to do.


- are normally required for the performance of your regular occupation and

- cannot be reasonably omitted or modified.

REGULAR OCCUPATION means the occupation you are routinely performing when your disability begins. UNUM will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location. (AR 429-428).

The policy further states that "when making a determination under the policy UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." (AR 452).

Greenberg is a collections specialist. (See e.g. AR 2). In connection with Greenberg's claim, Wolters Kluwer, her employer, competed a Long Term Disability Claim Job Analysis. In the analysis Wolters Kluwer identified Greenberg as a collection specialist and stated that her job involved "frequent" sitting and "occasional" "standing," "walking," "stooping," and "balancing." (AR 77). It also required occasional "picking up file paper" weighing "1-2 lbs." (Id.) The primary tasks requiring a collections specialist to use her hands are "typing," "telephone," and "filing." (AR 76). Wolter Kluwer further states that it is possible to offer the employee assistance so that, "all of the work can be accomplished by sitting." (Id.) Wolter Klowers also submitted a Position Description for collection specialist. The Position Description identifies the category of "physical demands" as "not applicable" to the occupation of collection specialist.*fn3 Accordingly, Unum determined that the Walter Klowers position of "collection specialist" was most closely analogous to the Dictionary of Occupational Titles category of "collection clerk."*fn4 According to the Dictionary of Occupational Titles, this is a sedentary position. A sedentary position includes, exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. (AR 304).

Injury and Treatment

In September 2000, Greenberg suffered severe back pain when a disc in her back "moved" while she was lifting heavy collection books at work. (AR 73). She became disabled because of the resulting sprained back and pinched nerve together with a viral infection. (AR 62). Accordingly, Greenberg sought treatment from Dr. Alexander Nelson, her primary care physician, Dr. William Boxer, her primary internist, and Dr. Igor Khelemksy, a neurologist. (AR 1).

Medical records from this period state that Greenberg was unable to work. Greenberg's physical therapist, Kathleen Haddican, stated that Greenberg attended physical therapy twice a week to treat lumbosacral strain*fn5 and sacroiliitis.*fn6 (AR 7). As a result of the injury to her lower back, Greenberg experienced a mild decrease in sensation in her legs and some limitation of movement in her legs. (AR 18). An EMG/NCV*fn7 report from November 7, 2000 found "mild lumbar radiculopathy*fn8 primarily involving roots L5*fn9 on the right and S1 on the left." (AR 16). An MRI from November 18, 2000 indicated a "bulging disc" in the lumbar spine. (AR 21). An EMG/NCV report from February 13, 2001 found that "electrodiagnostic study is consistent with bilateral moderate to severe radiculopathy involving cervical roots C8." (AR 11). Greenberg's physicians told her that she should not bend, lift more than a few pounds, or sit or stand for prolonged periods of time. (AR 26, 24, 22).

Greenberg also submitted a claim to Unum. Unum reviewed Greenberg's medical records. On April 26, 2001 an unidentified clinical consultant reviewed Greenberg's medical records and was asked by Unum to determine whether or not Greenberg's attending physician's restrictions and limitations of "no bending, lifting or prolonged sitting [sic] standing" were supported. The clinical consultant's report stated that, "based on the of 2/13/01, the R&Ls [restrictions and limitations] as stated above are supported. Continue to obtain notes from Dr. K [Khelemsky] to monitor progress." (AR 157).

On May 3, 2001, after the completion of a 180 day elimination period, Unum sent Greenberg a letter approving her claim. (AR 148-150). Although approving the claim, the letter also stated that "you must continue to meet the definition of disability in your contract" and that "Unum may request that you provide additional medical and/or vocational information on a periodic basis to support your claim for disability." (AR 150).

On September 27, 2001, Unum asked Patti Bryan, a registered nurse on its staff, to review and evaluate Greenberg's then current medical records. Nurse Bryan observed that the restrictions and limitations suggested by Greenberg's doctors "are supported but appear to be within the ranges for her job description."*fn10 (AR 266).

In October 2001, Dr. Khelmesky responded to a request from Unum that he clarify Greenberg's limitations and restrictions. He instructed that Greenberg not sit for more than ten minutes and not lift anything over 10 pounds. He further stated that Greenberg could "occasionally" reach above her shoulder or climb stairs.

In November 2001, Unum asked its physician, Robert C. Coddington M.D., a board certified orthopedic surgeon, to review the claim. Dr. Coddington completed his review on December 7, 2005. Dr. Coddington stated that, "the objective EMG/NCV findings and MRI findings are the main support for the alleged impairments" but that "the MRI bulging disc changes from the report do not seem severe enough to cause impingement on the nerve roots." (AR 295). Dr. Coddington recommended that Unum ask Dr. Burton McDaniel, a physiatrist, board certified in physical medicine and rehabilitation, whether the EMG/NCV changes were as significant as Greenberg's doctor had indicated and whether or not the raw data supported Greenberg's doctor's findings. Dr. Coddington noted that Greenberg's "positive clinical findings are mostly subjective, in that they are under her control." (Id.).

Dr. Coddington believed that Greenberg's inability to work for 14 months due to a lifting strain was excessive and that the restriction and limitations seemed extreme relative to Greenberg's complaints. (Id.) Dr. Coddington recommended "independent clinical evaluation and spontaneous observation" to help clarify her activities and abilities.

Following Dr. Coddington's recommendations, Unum asked Dr. McDaniel to review Greenberg's claim. Dr. McDaniel found that the "EMG/NCV findings are not supported by ...

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