Jansen v. The Lincoln Financial Group

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          For Janelle Jansen, Plaintiff: Peter J. Bendorf, Bendorf Law Firm, PLLC, Sioux Falls, SD.

         For The Lincoln Financial Group, The Lincoln National Life Insurance Company, Group Long Term Disability Insurance For The Employees of The Minute Clinic Group of Employers, The Minute Clinic Group of Employers, Defendants: Christopher R. Hedican, LEAD ATTORNEY, Baird Holm LLP, Omaha, NE; Steven D. Davidson, PRO HAC VICE, Baird Holm LLP, Omaha, NE.

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         OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Plaintiff Janelle Jansen filed suit under 29 U.S.C. § 1132(a)(1)(B) claiming that Defendants improperly denied her benefits under a long-term disability plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § § 1001-1461.^[1] Doc. 11-1. The parties filed cross-motions for summary judgment on whether Jansen met the insurance plan's definition of " Totally Disabled" and was therefore entitled to benefits. For the reasons explained below, this Court denies Jansen's motion and grants the Defendants' motion.

         I. FACTS

         This Court draws the facts from the administrative record and the portions of the statements of material facts that are either undisputed or not subject to genuine dispute. This dispute arises out of Jansen's claim of disability under the ERISA-governed plan of her former employer the Minute Clinic.

         The Minute Clinic offers employees long-term disability insurance through its benefit plan (the Plan). Doc. 28 at ¶ 2; Doc. 31 at ¶ 1; Doc. 24-2 at ¶ 1; Doc. 37 at ¶ 1. The Lincoln National Life Insurance Company (Lincoln) insures and administers the Plan and has discretionary authority to construe the terms of the Plan and make eligibility determinations. Doc. 28 at ¶ ¶ 2, 6; Doc. 31 at ¶ ¶ 1, 3; Doc. 24-2 at ¶ 2; Doc. 37 at ¶ 2; Doc. 28-2 at 64. The Plan provided for long-term disability benefits if an insured was " Totally Disabled" as defined by the Plan, under the regular care of a physician, and submitted proof of disability to Lincoln upon request. Doc. 28-2 at 71. The Plan has two different definitions of " Totally Disabled" or " Total Disability" depending on the time frame for which benefits are sought. The first definition applies during the " Own Occupation

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Period," which begins after the initial ninety-day elimination period and lasts through the following twenty-four months. Doc. 28 at ¶ 3; Doc. 31 at ¶ 1; Doc. 28-2 at 54, 71. During the Own Occupation Period, Totally Disabled " means that due to an Injury or Sickness the Insured Employee is unable to perform each of the main duties of his or her regular occupation." Doc. 28 at ¶ 3; Doc. 31 at ¶ 1; Doc. 28-2 at 71. Once the Own Occupation Period expires, a second, more restrictive definition of Totally Disabled kicks in: " it means that due to an Injury or Sickness the Insured Employee is unable to perform each of the main duties of any gainful occupation which his or her training, education or experience will reasonably allow." Doc. 28 at ¶ 3; Doc. 31 at ¶ 1; Doc. 28-2 at 71.

         The Plan also contains a " Specified Injuries or Sicknesses Limitation," which states:

If an Insured Employee is Disabled primarily due to one or more of the Specified Injuries or Sicknesses defined below; then Partial or Total Disability Monthly Benefits:

1. will be payable subject to the terms of this Policy; but

2. will be limited to 24 months for any one period of Disability; unless the Insured Employee is confined to a Hospital. " Specified Injuries or Sicknesses" include any Mental Sickness, or Substance Abuse, as defined below.

Doc. 28 at ¶ 4; Doc. 31 at ¶ 2; Doc. 28-2 at 77. The Plan defines " Mental Sickness" as:

any emotional, behavioral, psychological, personality, adjustment, mood or stress-related abnormality, disorder, disturbance dysfunction or syndrome; regardless of its cause. It includes, but is not limited to:

1. schizophrenia or schizoaffective disorder;

2. bipolar affective disorder, manic depression, or other psychosis; and

3. obsessive-compulsive, depressive, panic or anxiety disorders.

These conditions are usually treated by a psychiatrist, a clinical psychologist or other qualified mental health care provider. Treatment usually involves psychotherapy, psychotropic drugs or similar methods of treatment.

Doc. 28 at ¶ 4; Doc. 31 at ¶ 2; Doc. 28-2 at 77.

         Jansen was a nurse practitioner for the Minute Clinic in Minnesota until October 27, 2009, when, at age fifty-four, she stopped working because of non-ischemic congestive heart failure.^[2] Doc. 28 at ¶ ¶ 2, 7; Doc. 31 at ¶ ¶ 1, 3; Doc. 24-2 at ¶ 2; Doc. 37 at ¶ 2. An echocardiogram performed that day showed that Jansen's ejection fraction^[3] was below normal at

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thirty percent. Doc. 28-4 at 224. Doctors treated Jansen with heart medications and the placement of a biventricular implantable cardioverter-defibrillator (ICD), a device used to control cardiac arrhythmias.^[4] Doc. 28-4 at 219, 221, 223. Thereafter, Jansen submitted a claim for long-term disability benefits with Lincoln. Doc. 28-4 at 194. Lincoln determined that Jansen was unable to perform the main duties of her occupation as a nurse practitioner and awarded her long-term disability benefits effective January 26, 2010. Doc. 28 at ¶ 8; Doc. 31 at ¶ 3; Doc. 24-2 at ¶ 3; Doc. 37 ¶ 3; Doc. 28-4 at 194-196.

         Over the following year and a half, Jansen treated with internist Dr. Donald Somers, cardiologist Dr. Luis Pagan-Carlo, and psychiatrist Dr. Molly Silas. At a March 2010 appointment with Dr. Pagan-Carlo, Jansen reported feeling " pretty well" overall but still having some fatigue. Doc. 28-3 at 344. Dr. Pagan-Carlo remarked in his notes that Jansen walked around the unit with him " at a relatively rapid pace" without experiencing shortness of breath or being unable to talk. Doc. 28-3 at 345. Jansen's ejection fraction had increased to fifty percent and Dr. Pagan-Carlo believed that she was " doing well." Doc. 28-3 at 345. According to Dr. Somers's notes from an April 2010 appointment, Jansen was " making very slow but steady progress." Doc. 28-4 at 160. On May 13, 2010, Dr. Pagan-Carlo completed an attending physician's statement form from Lincoln. Doc. 28-4 at 146-48. He identified Jansen's work capacity as " medium," which meant that she could occasionally lift up to fifty pounds, frequently lift up to twenty-five pounds, and typically be on her feet a minimum of six hours out of an eight-hour workday. Doc. 28-4 at 148. He also marked on the form that Jansen was not totally disabled from her job or any other job and that she could return to work part time at five hours a day. Doc. 28-4 at 147.

         At Dr. Somers's suggestion, Jansen began seeing Dr. Silas for psychiatric treatment. Doc. 28-3 at 306. Jansen had a history of psychiatric issues, having previously been diagnosed with depression and bipolar II disorder.^[5] Doc. 28-2 at 408, 441; Doc. 28-3 at 11. Her past treatment for these conditions included electroconvulsive therapy, Doc. 28-2 at 419-28, three voluntary hospitalizations in 2004, Doc. 28-2 at 407-11, 434-37; Doc. 28-3 at 9-16, and psychotropic medications, Doc. 28-3 at 12, 81-83, 87-120. When Jansen saw Dr. Silas for an initial evaluation on May 21, 2010, she was not depressed or manic, and Dr. Silas rated her concentration as good. Doc. 28-3 at 306. Dr. Silas concurred with the prior diagnosis of bipolar II disorder

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and adjusted Jansen's psychotropic medications. Doc. 28-3 at 304-309. After seeing Jansen on May 27, 2010, Dr. Pagan-Carlo wrote that he had trouble communicating with her and opined that she may have been " in a bipolar crisis." Doc. 28-3 at 343.

         Jansen visited Dr. Silas again on June 23, 2010. Doc. 28-3 at 302. Jansen reported doing well, with fewer symptoms of depression. Doc. 28-3 at 302. Dr. Silas noted that Jansen's thought process, memory, affect, judgment, insight, and speech were normal and assessed Jansen as doing " significantly better" on the adjusted medication regimen. Doc. 28-3 at 302. Although Jansen exhibited an impaired affect and appearance and had thoughts of suicide when she saw Dr. Silas in June and September of 2010, other aspects of her mental function, including her speech, insight, memory, judgment, and orientation, remained normal. Doc. 28-3 at 300-01.

         In early October 2010, Jansen learned that the Social Security Administration had determined that she became disabled under the Administration's rules as of September 10, 2010. Doc. 28-4 at 33. Jansen saw Dr. Silas for a follow up on October 8, 2010, during which Jansen reported that she had enjoyed a recent trip to Italy and that she was getting " a little bit better." Doc. 28-3 at 298. Dr. Silas noted that Jansen was negative for suicidal ideation and that her mental function appeared normal. Doc. 28-3 at 298. She assessed Jansen as having bipolar II disorder and anxiety disorder but as doing " fairly well." Doc. 28-3 at 298. Jansen saw Dr. Pagan-Carlo five days later. Doc. 28-3 at 338. She complained of occasional chest and back pain and said that although she had traveled to Italy, she got more tired than she thought appropriate. Doc. 28-3 at 338. Given Jansen's history and complaints of chest pain, Dr. Pagan-Carlo ordered a nuclear stress test,^[6] Doc. 28-3 at 339, which came back normal, Doc. 28-3 at 336.

         Jansen reported worsening depression, low energy, and poor concentration when she saw Dr. Silas in December 2010. Doc. 28-3 at 296. She told Dr. Silas of a week-and-a-half period when she did not get out of bed or shower. Doc. 28-3 at 296. Dr. Silas noted that Jansen was negative for suicidal ideation and that her mental function was normal. Doc. 28-3 at 296. She assessed Jansen as having an increase in depression and adjusted her medication. Doc. 28-3 at 296. Jansen's mood was better when she visited Dr. Silas the next month. Doc. 28-3 at 295. Dr. Silas recorded that although Jansen's appearance and affect were impaired, the remaining aspects of her mental function were normal. Doc. 28-3 at 295.

         On February 4, 2011, Jansen saw Dr. Pagan-Carlo's physician's assistant (PA), complaining of an increase in chest and back discomfort. Doc. 28-3 at 334. The PA noted that Jansen had " just recently returned from a trip to Key West where she was quite active doing parasailing, jet skiing, snorkeling, etc. and was pretty much on the go the whole time she was there." Doc. 28-3 at 334. Jansen reported that she had experienced a dramatic decrease in energy and some exertional shortness of breath since her return. Doc. 28-3 at 334. Unsure of the etiology of Jansen's symptoms, the PA ordered a stress test. Doc. 28-3 at 336. The test

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was normal and showed that Jansen's ejection fraction was sixty-three percent. Doc. 28-3 at 351-52. After seeing Jansen on February 23, 2011, Dr. Silas diagnosed her as having bipolar II disorder, anxiety disorder, and posttraumatic stress disorder.^[7] Doc. 28-3 at 294. She recorded that Jansen's affect was impaired and that she was having suicidal thoughts, but that other aspects of Jansen's mental function were normal. Doc. 28-3 at 294.

         Dr. Silas completed an attending physician's statement form from Lincoln on April 1, 2011. Doc. 28-3 at 408-09. She identified Jansen as having a class three mental impairment, which meant that Jansen was able to engage in only limited stress situations and interpersonal relationships. Doc. 28-3 at 408. When asked on the form whether Jansen was totally disabled from her job and any other work, Dr. Silas checked " yes" and wrote " cardiac related." Doc. 28-3 at 409. She marked that Jansen's disability would not improve in the future. Doc. 28-3 at 409. At a followup with Dr. Pagan-Carlo's PA later that month, Jansen reported exertional nausea and fatigue along with pain in her shoulder blades. Doc. 28-3 at 330. The PA remained uncertain about the etiology of Jansen's shoulder pain but felt that Jansen's two normal stress tests within the last six months made it unlikely that ischemia^[8] was the cause. Doc. 28-3 at 332.

         Jansen moved from Minnesota to Sioux Falls, South Dakota in July 2011 to be closer to her family. Doc. 28-3 at 255. She began treating with psychiatrist Dr. William Fuller, internist Dr. Richard Nelson, and cardiologist Dr. Bruce Watt. Jansen's first appointment in Sioux Falls was on July 7, 2011, with Dr. Fuller. Doc. 28-3 at 255. She reported having four depressive swings since January 2011, during which she had increased anxiety, low energy, and difficulty meeting her responsibilities. Doc. 28-3 at 255. A mental status examination that day was normal, with Jansen displaying a logical thought process and good concentration and focus. Doc. 28-3 at 256. Dr. Fuller, who had treated Jansen for a " fairly lengthy period of time" in the past, wrote that her " history of bipolar illness is very well documented. I have ...