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Holzmeyer v. Walgreen Income Protection Plan for Pharmacists & Registered Nurses

United States District Court, S.D. Indiana, Indianapolis Division

September 4, 2014

MICHAEL HOLZMEYER, Plaintiff,
v.
WALGREEN INCOME PROTECTION PLAN FOR PHARMACISTS AND REGISTERED NURSES, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For MICHAEL HOLZMEYER, Plaintiff, Counter Defendant: Bridget L. O'Ryan, O'RYAN LAW FIRM, Indianapolis, IN.

For WALGREEN INCOME PROTECTION PLAN FOR PHARMACISTS AND REGISTERED NURSES, Defendant, Counter Claimant: Eric P. Mathisen, Mark E. Schmidtke, OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. - Valpo, Valparaiso, IN; Kimberly A. Jones, OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.-Chicago, Chicago, IL.

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ORDER ON MOTIONS FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, United States District Judge.

This cause is before the Court on the parties' cross motions for summary judgment on Plaintiff's suit under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1132(a)(1)(B), for judicial review of the denial of long-term disability benefits. For the reasons set forth below, Plaintiff's motion for summary judgment [Docket No. 27] is GRANTED, and Defendant Walgreen Income Protection Plan's motion for summary judgment [Docket No. 29] is DENIED.

Factual Background

A. Holzmeyer's treatment history

Plaintiff Michael Holzmeyer is a resident of Indiana and a former employee of Walgreen, Inc. (" Walgreens" ). Am. Comp. ¶ 2. Holzmeyer is a doctor of pharmacy and a licensed pharmacist, who from 2003 to 2009 worked for Walgreens as a " retail pharmacy manager." R. 369.[1] In September 2009, Holzmeyer began working for Walgreens as a " home pharmacist," a position in which he reviewed the filling of orders and prescriptions by the company's retail pharmacists from his home via computer. Docket No. 28 at 2. Holzmeyer was enrolled in the Walgreen Income Protection Plan for Pharmacists and Registered Nurses (" Plan" ), a self-funded employee benefits plan under ERISA, whose claim administrator is Sedgwick Claims Management Services, Inc. (" Sedgwick" ). Pl.'s Ex. 2 at 22.[2]

The Plan provides both short-term and long-term disability benefits for its enrollees, and it defines long-term " disability" as follows:

For the long-term disability period, " disabled" or " disability" means that, due to sickness, pregnancy, or accidental injury, you are prevented from performing one or more of the essential duties of your own occupation and are receiving appropriate care and treatment from a doctor on a continuing basis; and
For the first 18 months of long-term disability, you are unable to earn more than 80% of your pre-disability earnings or indexed pre-disability earnings at your own occupation for any employer in your local economy;
Following that 18 month period, you are unable to earn more than 60% of your indexed pre-disability earnings from any employer in your local economy at any gainful occupation for which you are reasonably qualified, taking into account your training education, experience and pre-disability earnings.

Pl.'s Ex. 2 at 8. The Plan further defines an enrollee's " own occupation" as " the activity that you regularly perform and that

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serves as your source of income. It is not limited to the specific position you hold or held with Walgreens. It may be a similar activity that could be performed with Walgreens or any other employer." Id. at 9.

Holzmeyer has a lengthy history of back problems, stemming originally from an automobile accident in December 1986 in which he fractured his spine and underwent fusion surgery.[3] Docket No. 28 at 8 (citing R. 147, 149). In 2009, while living in Florida, he began to experience serious back pain and sought treatment at Tampa Bay Orthopaedic specialists. In a July 9, 2009 visit with Dr. Howard Sharf, Holzmeyer reported back pain, deep vein thrombosis in his left leg, and foot pain; Dr. Sharf noted that Holzmeyer had an abnormal gait and displayed tenderness in his spinal area. He conducted imaging which showed " significant degenerative changes of the lumbar spine including the sacroiliac joints" and the appearance of " disengagement of one of his most superior hooks." R. 520-521.[4] Dr. Sharf later examined Holzmeyer in a follow-up appointment and scheduled CT scans of his spine. R. 522. Several months later, on February17, 2010, Holzmeyer saw Dr. Gary Holland in an effort to deal with continuing back pain. He reported that the back " bracket" set up by his previous surgery seemed to be " breaking," and he complained of increased pain and diminished mobility. Dr. Holland noted that Holzmeyer's range of motion was " significantly limited by pain." R. 553.

Holzmeyer underwent a CT scan of his cervical spine, thoracic spine, and lumbar spine on April 7, 2010. The scan revealed multilevel disc bulging with some " unremarkable" degenerative changes in the cervical spine; it also showed deterioration in the condition of the Harrington rods that had been implanted during his first back surgery. R. 105. On April 23, 2010, Holzmeyer consulted with Dr. Glenn Fuoco at Tampa Bay Orthopaedic Specialists, to whom he had been referred by Dr. Sharf. Holzmeyer reported to Dr. Fuoco that he had pain " across the lower back, right greater than left, [with] some symptoms shooting pains and numbness into the right leg." R. 96. He also told the specialist that his 2009 shift to a primarily sedentary position as a " home pharmacist" had exacerbated his pain issues; Dr. Fuoco noted that " since September [2009] he has been doing sitting work and this has caused a lot of the lower pack pains. He has to sit with his left leg elevated [due to a clotting issue] which is aggravating his back pain." Id. He further noted that Holzmeyer rated his lumbar spinal pain at " 7 to 8/10" and assessed his standing tolerance as 5 to 10 minutes only. Id. Dr. Fuoco later administered a bilateral sacroiliac joint injection in an effort to ameliorate Holzmeyer's pain. R. 108, 120-121. At a follow-up appointment with Dr. Fuoco two weeks after the injection, Holzmeyer reported that his symptoms had temporarily eased, but had returned only days

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after the injection. Dr. Fuoco then recommended a different pain-relief injection--a caudal epidural. R. 123, 532, 543-544. Holzmeyer later reported that this injection, too, produced only temporary relief and had no longer-term effect on his chronic pain. R. 129.

On July 1, 2010, Holzmeyer visited the Laser Spine Institute, where he reported an average pain level of " 9/10" when active and " 6 to 7/10" when resting; examination revealed tenderness at several of his vertebrae and a limited range of motion. R. 160-161.[5] After another examination on July 7, he was scheduled for a second back surgery. Two doctors at the Institute performed the surgery on July 20--an operation which consisted, in their words, of three procedures: destruction by thermal ablation of the paravertebral facet joint nerves, lumbar laminectomy and foraminotomy, and an additional caudal epidural steroid injection. R. 166.[6] After initially reporting some improvement, Holzmeyer contacted the Institute in August 2010 to tell them that his lower back pain had returned; the Institute's treatment note indicates that " [Holzmeyer] feels he is deteriorating due to returning pain in his right hip and [lower extremity]." R. 170. On September 1, 2010, a physician with the Institute administered another caudal epidural steroid injection. R. 483-484. Mr. Holzmeyer underwent an MRI on September 27, 2010. The presence of metal distorted some of the readings, but the imaging report noted abnormalities on the " L4-5 level" indicating " degenerative disc disease" ; it further stated that " nerve root compression cannot be excluded on a degenerative basis." R. 549.

After Holzmeyer moved to Indiana, he became a patient of Dr. Ross Whitacre, an orthopedic specialist at Tri-State Orthopaedics; his first appointment occurred on October 18, 2010. R. 192-194. At this initial appointment, Dr. Whitacre noted that Holzmeyer had " significant lumbar spondylosis with stenosis at L4-5" that had been " incompletely resolved" by his July 2010 surgery, " symptomatic spondylosis of the lower lumbar levels," neck pain with " fluctuant soft tissue mass over the cervicothoracic junction," and headaches " that appear to be tension related." R. 193. Tri-State ordered a CT scan the same day; the scan analysis notes that while there is no " acute fracture or dislocation" of the spine as a whole, the L4-L5 vertebrae showed " broad-based disc osteophyte complex which appears to be causing moderate to severe central spinal canal stenosis." R. 194. When initial efforts at pain management, including " back blocks," did not produce satisfactory results, Dr. Whitacre referred Holzmeyer to Dr. John Grimm, an orthopedic surgeon affiliated with Tri-State. After an examination, Dr. Grimm summarized Holzmeyer's reported symptoms as follows:

He points to the worst of his complaints in his low back at the lumbosacral junction. The pain also does radiate bilaterally into the lateral aspects of his hips and down the lateral aspects of his thighs into his calves. He states that the left leg is much worse than the right. He has no bowel or bladder dysfunction or gait disturbance. Walking is the worse of his complaints, which he only can do for less than a block. Standing

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also greatly increases the pain and he cannot tolerate standing for more than 10 minutes. He states that sitting is tolerated for about 30 minutes. He feels as though his condition is slowly getting worse over time.

R. 256. Dr. Grimm's spinal examination revealed " tenderness throughout the entire thoracic and lumbar spine," although he stated that " motor, reflex, [and] sensory testing in the upper extremities reveals no deficit." R. 257. Grimm judged Holzmeyer's latest CT scan to show " moderate collapse" of the L4-5 disc, and some deterioration of the " hook" portion of the hardware installed by the 1987 fusion surgery. Id. Dr. Grimm assessed Holzmeyer with an " Oswestry Disability Index" score of 70%.[7] Id.

On December 22, 2010, Holzmeyer underwent another CT scan of his spine, which showed a " right laminectomy defect" with " moderate to severe central spinal canal stenosis" at vertebrae L4-L5, " mild central stenosis" at the L3-L4 vertebrae, and some other non-severe abnormalities.[8] R. 266-269. On January 13, 2011, Holzmeyer had a third back surgery, this time performed by Dr. Matthew Kern of Comprehensive Neurosurgical Specialists in Evansville, Indiana. R. 944.[9] When Holzmeyer visited Dr. Kern for a follow-up two months later, he reported to the surgeon that " his preoperative [back] pain has pretty much resolved." Id. He did, however, report pain in his buttocks that was severe enough to force cancellations of home physical therapy sessions. Id.

In April 2011, Holzmeyer had his first appointment with Dr. Steven Rupert, a pain management specialist. R. 224-228. According to Dr. Rupert, Holzmeyer reported back pain that " increases with standing, sitting in the same position, [and] laying [sic] down," which afflicted him every day of the week. R. 224. On examination, Dr. Rupert found that a number of areas in Holzmeyer's back were " tender with palpation," and his overall diagnosis was " failed back syndrome." R. 228. At a follow-up visit with his surgeon Dr. Kern the same month, Holzmeyer reported that, notwithstanding his temporary post-surgical improvement in pain, all of his preoperative symptoms had now returned. R. 223. Declaring that further surgical options were inadvisable, Dr. Kern told Holzmeyer that he did not 'have anything further to offer him," and he directed him back to Dr. Whitacre to attempt pain management. Id.

Holzmeyer had additional appointments with pain management specialist Dr. Rupert

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on June 1 and July 21, 2011. On both occasions, Holzmeyer reported suffering constant pain in his lower back and hip/buttocks areas, exacerbated by lying down, movement, and standing. R. 242, 245. After Dr. Kern advised against further surgery, Holzmeyer also saw Dr. Whitacre on July 20, 2011 and inquired about the possibility of undergoing epidural therapy. Noting the persistence of Holzmeyer's tenderness " over the lumbosacral junction and higher up at the thoracolumbar interface" as well as " postphlebitic syndrome in the lower extremity with the calf being markedly [larger] circumferentially of the left than the right," Dr. Whitacre scheduled Holzmeyer for a high-volume caudal epidural steroid injection. R. 249. Holzmeyer received the injection on August 16, 2011. R. 327-328.

At a subsequent appointment with Dr. Whitacre on September 19, 2011, Holzmeyer reported that the steroid injection had not been effective--pain had returned after three days--and he had not gone through with the second scheduled injection. R. 323. Dr. Whitacre described Holzmeyer's condition as follows:

His standing tolerance is limited to 5-10 minutes at most. Sitting is more uncomfortable than standing but not by much. He does not feel comfortable at work in terms of his positional intolerance as well as his inattentiveness secondary to his medications . . . . We had a long discussion today about medication management. I am afraid that one of the things limiting him from returning to gainful employment is his inattentiveness and some of the side effects from the medication.

Id. Physical examination of Holzmeyer at the same appointment revealed " significant extension-based back pain" and limited range of motion in the spine. Holzmeyer saw Dr. Whitacre again on October 24, 2011; at this appointment, Holzmeyer and the doctor discussed the " physical capacity evaluation" Whitacre had filled out in July as part of Holzmeyer's disability application process ( see below ). As Dr. Whitacre noted:

His pain continues to be worse with upright standing and walking. He tells me he spends 90% of his day recumbent. In fact, he has some concerns about the report I had filled out earlier as part of his disability paperwork. I indicated he could stand or walk several hours per day so long as breaks were allowed. He estimates today that he walks only when he has to go outside the home. He tells me he literally spends 90% of his time reclined. I questioned this a few times, but he reasserts the fact that he rarely if ever is actually seated upright in a chair, and even more rare is the occasion where he is standing or walking. He says he can walk 1 lap around the grocery store. He would not be able to do a home pharmacy because of the distractibility secondary to narcotic medications in his own words. He says that his pain is so intense when he is upright that he cannot focus and gives the example of his fidgeting in the seat today as evidence of his distractibility.

R. 325. Dr. Whitacre noted no changes from the September appointment in his physical examination of Holzmeyer. A CT scan a week later revealed that Holzmeyer's most recent surgery had resulted in " successful lumbar surgical decompression," but noted the persistence of " chronic degenerative disease" and scoliosis. R. 329.[10]

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On December 20, 2011, Holzmeyer saw Dr. William Ante, a Tri-State pain specialist to whom he had been referred by Dr. Whitacre. R. 387-389. Dr. Ante noted as follows:

His main complaint is his low back pain. It feels like aching, burning, and sharp pain in both sides of the back equally. If he sits for a prolonged period of time or drives for a prolonged period of time he will have numbness in the lateral thighs bilaterally. He thinks that he has been worsening the past two months. He does have some ...

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