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Darvell v. Life Insurance Company of North America

March 10, 2010

JERRY B. DARVELL, APPELLANT,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, APPELLEE.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Benton, Circuit Judge.

Submitted: October 22, 2009

Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,*fn1 District Judge.

Jerry B. Darvell was denied long-term disability benefits by Life Insurance Company of North America ("LINA"). The district court*fn2 granted LINA's motion for summary judgment, finding that it did not abuse its discretion in determining that he was not disabled. Darvell appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Beginning in May 2003, Darvell worked for Yellow Book USA, Inc., as an account representative in the Duluth area. His job involved in-person calls to sell new advertising, while carrying a book of advertising and account information that weighed about 35 pounds. He claims he was disabled by three conditions: reflex sympathetic dystrophy (a pain syndrome), osteoarthritis in both shoulders, and depression. He asserts that these conditions prevented him from the driving, walking, and carrying involved in his job.

Darvell has a history of shoulder, arm, and hand pain stemming from a 1980 car accident. He is under the care of Dr. Douglas Johnson, a family practitioner; Dr. Raymond Hausch, a rheumatologist; and Dr. Thomas Kaiser, an orthopedic surgeon. These doctors diagnosed Darvell with the three conditions that he bases his claim on.

In October 2004, Darvell's symptoms got worse. He complained to both Dr. Hausch and Dr. Kaiser of increased pain. He reported having trouble with pushing, pulling, and lifting, and not being able to lift his right arm above shoulder level. He also experienced crepitus (grinding and crackling) with the movement of his shoulders. X-rays revealed progressive osteoarthritis in both shoulders, with the right shoulder significantly worse than the left, as well as osteophyte formation in the right shoulder joint.

Both Dr. Hausch and Dr. Kaiser restricted Darvell to sedentary work (lifting up to ten pounds and occasional walking and standing). Dr. Hausch stated, "I do not see any way [Darvell] can continue to do any work or sustain gainful employment given the amount of arthritis in his shoulder and also his reflex sympathetic dystrophy.... I do believe this patient is disabled and is unable to sustain gainful employment." Dr. Kaiser noted that Darvell had "a major problem right now with depression and anxiety."

A few days later, Darvell saw Dr. Johnson, who said that "depression was becoming a greater and greater part of his disability" and that he "should be on disability due to depression." Dr. Johnson prescribed an antidepressant.

For the next four months (through February 2005), Darvell's doctors restricted him to sedentary work. On February 9, Dr. Johnson said that each of his conditions (RSD, osteoarthritis, and depression) was disabling, precluding gainful employment of any kind. Dr. Johnson also noted that antidepressants had improved Darvell's symptoms of depression, alleviating any need to see a psychiatrist. A week later, after a clinic visit, Dr. Johnson again noted that Darvell's symptoms of depression were improving. On March 4, according to Dr. Johnson, Darvell's right shoulder was "jelling much more" and he had a limited range of motion and increased pain with any type of movement. At this point, Dr. Johnson decided to order Darvell to stop working altogether. He authored a second letter on March 30 - essentially identical to the February 9 letter - again opining that each of the three conditions was disabling, that Darvell was unable to work as a result of each condition, and that he did not believe that Darvell could ever return to work as an account executive. Darvell's other doctors agreed he was disabled and should not be working.

Darvell's last day of work was March 3, 2005. He applied for and received short-term disability benefits. Over the next nine months, his symptoms continued to wax and wane, and his doctors adjusted his pain medications. At one point (in May 2005), Dr. Kaiser noted that Darvell "really just cannot use the arms at all at this point," but this limitation was apparently due solely to pain, as Dr. Kaiser noted that Darvell had "excellent motion in both of his shoulders...."

In June, according to Dr. Kaiser, Darvell was showing signs of radiculopathy, as a neck x-ray showed "significant degenerative change" in one area of his vertebrae. Later, however, Dr. Hausch noted that the x-ray appeared normal. Dr. Edward Martinson (a physical-medicine rehabilitation specialist) recorded, in July, that there were not "significant radicular type features to his pain" and, in October, that there was "[n]o clinical evidence at this time to suggest a cervical myelopathy/radiculopathy."

On October 21, 2005, Dr. Johnson filled out a "physical ability assessment" form indicating that, during an ...


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