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Johnston v. Prudential Insurance Co. of America

United States Court of Appeals, Eighth Circuit

February 25, 2019

John Johnston Plaintiff - Appellant
v.
Prudential Insurance Company of America Defendant-Appellee

          Submitted: December 11, 2018

          Appeal from United States District Court for the Western District of Missouri - Western Division

          Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         John Johnston appeals a district court[1] order finding that Prudential Insurance Company of America ("Prudential") did not abuse its discretion when it terminated his long term disability benefits. We affirm the district court's order.

         I. Background

         Johnston was an Enterprise Storage Engineer in the computer department at Commerce Bancshares, Inc. ("Commerce"). As part of an employee welfare benefit plan (the "Plan"), Commerce provided its employees long-term disability ("LTD") insurance from Prudential.

         In July 2013, Johnston became unable to continue working due to complications from hydrocephalus, which ultimately led to surgery to remove a colloid cyst from his brain. Johnston filed a claim for LTD benefits with Prudential. Dr. Kala Danushkodi, Johnston's treating physician, submitted a statement that Johnston had "cognitive impairment / moderate to severe" and was unable to return to work due to the impairment.

         Prudential sent Johnston a letter approving his claim for LTD benefits in November 2013. Prudential also requested the results of two neuropsychological examinations "for the ongoing review of your claim and benefits beyond December 31, 2013." It further advised that it would "periodically review your claim, and request or obtain information, to ensure that you meet all eligibility requirements."

         After receiving and reviewing the results of Johnston's examinations, Prudential staff noted that one of the tests was not valid due to Johnston's inconsistent performance. After Johnston underwent an additional surgery in March 2014 to place a shunt in his head, Prudential decided that another neuropsychological evaluation was needed to determine whether he continued to be disabled.

         Neuropsychologist Dr. Robert Denney examined Johnston in June 2014. Dr. Denney used multiple tests for the validity of Johnston's responses, both "embedded" and "free-standing."[2] He was unable to determine whether Johnston was cognitively impaired because Johnston failed almost all of the validity tests. Dr. Denney opined that two of the free-standing validity tests indicated that Johnston "was actively attempting to perform poorly." In a supplemental addendum to his report, Dr. Denney reviewed the data from two of Johnston's previous examinations. He did not change his conclusions about Johnston because one examination had failed validity indicators, while the other examination had inconsistent results that suggested invalidity.

         Based on Dr. Denney's report and addendum, Prudential terminated Johnston's LTD benefits as of September 1, 2014. It determined that Johnston had failed to support his claim that he was still unable to work due to cognitive impairment.

         Johnston appealed the termination of his LTD benefits. In support of his appeal, he submitted a statement from his therapist, Dr. Marcia Meyer, explaining that he was exhausted by Dr. Denney's tests and that he was unable to maintain the focus and concentration needed for his job.

         After reviewing Johnston's appeal, Prudential sought a second neuropsychological examination. Dr. Michelle Zeller examined Johnston in June 2015, and she reported that he failed all nine validity measures on the tests she administered. She concluded that he was attempting to appear more impaired than he actually is, and she stated that she was unable to determine his level of impairment. Dr. Zeller explained: "Failure on any one of these measures would raise the possibility of negative response ...


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