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Kennedy v. The Lilly Extended Disability Plan

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

February 13, 2015



WILLIAM T. LAWRENCE, Senior District Judge.

Before the Court are the parties' cross motions for summary judgment. The motions are fully briefed, and the Court, being duly advised, GRANTS the Plaintiff's motion [Dkt. No. 35] and DENIES the Defendant's motion [Dkt. No. 40] for the reasons set forth below. In addition, the Court DENIES AS MOOT the Plaintiff's Motion To Determine the Standard of Adjudication [Dkt. No. 34].


Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001). The fact that the parties have filed cross-motions for summary judgment does not alter the standard set forth in Federal Rule of Civil Procedure 56. When evaluating each side's motion, the Court simply "construe[s] all inferences in favor of the party against whom the motion under consideration is made." Metro Life. Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).


The facts of record relevant to the Court's decision are as follow.[1]

Defendant Lilly Extended Disability Plan ("the Plan") is an employee benefit plan for employees of Eli Lilly and Company ("Lilly"). Plaintiff Cathleen Kennedy was an employee of Lilly and, as such, participated in the Plan.

Kennedy began working at Lilly in 1982. In January 2007, Kennedy began experiencing symptoms that continued to worsen and eventually led to a diagnosis of fibromyalgia in April 2008. By December 2007, her symptoms had become so severe that she determined she was no longer able to work. Kennedy eventually applied for long-term disability benefits under the Plan; those benefits were approved effective May 1, 2009. The applicable definition of "disability" in the Plan at that time was, in relevant part, "the inability of an Employee to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience." Record at 131.

In 2010, Anthem Life and Disability ("Anthem"), the Plan administrator, reviewed Kennedy's claim. By that time, the Plan's definition of "disability" had been amended. The new version provided two definitions of "disability." The one that applied to Kennedy in 2010- because she had not been receiving benefits for more than 24 months at that point-was the inability to perform her own occupation. Anthem had Kennedy complete a questionnaire about her activities and symptoms and requested and reviewed records from Dr. John Condit, Kennedy's treating rheumatologist, as well as her treating psychiatrist and urologist. Anthem then requested a peer review from Dr. Ara Dikranian, who is board certified in rheumatology and internal medicine.[2] Dr. Dikranian opined that Kennedy "is noted in the submitted documentation to have fibromyalgia that has been poorly characterized. There is no evidence that her fibromyalgia is functionally impairing her ability to work." Indeed, his opinion was that "[t]he internal medicine progress notes reviewed do not document a diagnosis of fibromyalgia nor signs or symptoms to support this diagnosis." Id. at 895. Dr. Dikranian concluded:

There is no documentation from her clinical assessment that the claimant has significant functional impairments; given the diagnosis and her chronic pain, it is reasonable to restrict her push/pull/life/carry to no heavier than 50 pounds ever, limiting 20 to 50 pounds to occasionally and up to 20 pounds frequently. No restrictions on sitting, standing, walking, reaching in all directions, fingering, handling, bending, kneeling, crouching, climbing are supported.
There are inconsistencies of the claimant's self reports and observed behaviors and the clinical findings. The submitted medical records do not document functional impairment severe enough to support her inability to perform in any work capacity. The restrictions and limitations stated above would accommodate the pain the claimant experiences upon certain activities, but does not preclude her from ability for full time work.


In September 2010, at Anthem's request, Kennedy underwent an independent medical examination performed by Dr. Steven Neucks, a rheumatologist.[3] After reviewing Kennedy's medical records and examining her, Dr. Neucks concurred with the diagnosis of fibromyalgia: "This patient clearly has fibromyalgia. This is documented by my exam, the exam of Dr. Condit, her general internist, and she meets the current rheumatology guidelines.... I believe her diagnosis is well established." Id. at 375. With regard to the question of whether Kennedy suffered from a condition that impaired her ability to perform activities of daily living or to work, Dr. Neucks opined:

Fibromyalgia clearly can impact the patient's ability to work. Fortunately, they do not seem to have impacted her ADL activity nor much of her self-care functioning. The patients with fibromyalgia have multiple issues. One is pervasive fatigue. This is aggravated by difficulty with insomnia and the need to take multiple medications some of which are fatiguing. Many of the patients note that they have to get steady rest and pace themselves during the day or else their fatigue and then their pain becomes increasing. As fatigue and stress increases, the patient's cognitive issues often referred to as "fibro-fog" appear to gradually worsen. This patient notes that she had difficulty functioning at her high-paced job with lots of stress and lots of hours at work, but does much better at home. She notes that although she is relatively functionally capable at home, she limits her activities and spaces them with times of rest during the day. The patients with fibromyalgia have well documented difficulty doing repetitive tasks and have difficulty doing heavy tasks and posture maintenance. These would all be required in the patient's job as well as the ability to be sharp clinically and mentally on a relatively consistent basis for multiple hours during the week. Additionally, the patients with fibromyalgia have flares. These flares cause them to have to limit their activities severely for a day or two. These clearly could not be well accommodated in a high functioning job such as the patient had previously....
Overall, I think there is a good correlation with this patient who I thought was honest and forthright. The patient questionnaire provided by the insurance company also reveals levels of functioning that are quite consistent with what the patient told me during the consultation. The reports from Dr. Condit's office are similarly appropriate in defining the patient's physical capacities. These are quite consistent with the patient's report on the fibromyalgia impact questionnaire. I do not get the sense that the patient is trying to exaggerate her symptoms to fulfill a mission or for secondary gains. These are quite consistent with my physical findings and I think represents a clear and reliable history.

Id. at 375-76. Dr. Neucks opined that Kennedy "cannot do sustained high stress activities over 40 to 50 hours a week, " and that she "has to be able to maintain her regimen of rest and exercise and to be in a relatively modified or stress free environment." Id. at 376. He opined that she was limited to lifting 25 pounds occasionally and 15 pounds frequently; she needed to avoid repetitive, high-volume activity; she would need the ability to get up and move around for several minutes every hour; she would need to take off one or two days per month for "restoration"; posture maintenance would be "difficult" for her; and she was limited to working 30-35 hours per week at a low-stress job. Id. As a result of these restrictions, he opined that she was unable to return to her previous job as a Human Resources Director/Manager, which was an executive level position that indisputably was not "low-stress" and which required more than 40 hours per week and a high level of cognitive function. He further opined that the expected duration of her impairment would be two years from the date of his exam.

In April 2011, Anthem obtained an annual disability update form from Kennedy and an attending physician statement from Dr. Condit, who opined on May 11, 2011, that Kennedy could not work "full-time in a role with significant responsibilities, " could not "return to work doing complex tasks, " and would, in his opinion, "never" "recover sufficiently to perform the duties of" either her regular job or "any other type of work." Id. at 50-51.

In March 2012, Sedgwick Claims Management Services ("Sedgwick") became the administrator of the Plan. In June 2012, Lilly asked Dr. Condit again to complete an Attending Physician Statement form and provide updated office notes. The instructions to Dr. Condit stated: "We require objective clinical information that supports your patient's inability to return to work due to reduced functional capacity." Id. at 1029. Dr. Condit listed Kennedy's diagnoses as nonarticular rheumatism, fibromyalgia, sleep disorder, depression, irritable bowel syndrome, and restless leg syndrome. He indicated that he believed Kennedy to be permanently disabled and unable to "remain on feet for >1 hour at a time or sit at desk for >2 hrs. straight." Id. at 1031. Where asked to "[d]escribe objective/clinical findings to warrant disability, including severity and duration based [sic] the patient's presentation during office visits, " Dr. Condit wrote "diffuse pain, sleep disorder, fatigue." Id. at 1030. In his office notes dated June 21, 2012, he noted that "[i]n general, she has done fairly well. Cannot explain the flare of pain in her thighs." Id. at 1033. A representative of Sedgwick spoke with a member of Dr. Condit's staff and reported that he or she was informed that Dr. Condit "does not do any Functional Capacity exams and there is no other information in regards to her functional status and limitations" other than that reported in the Attending Physician Statement. Id. at 1704.

In July 2012, Sedgwick advised Kennedy that it would be referring her to a physician of its choice for a medical examination. By that time, Kennedy was subject to a new definition of "disability" in the amended Plan because she had received benefits for more than 24 months. The operative question was now whether she was unable to "engage, for remuneration or profit, in any occupation consistent with [her] education, training, and experience." Id. at 1727.

Sedgwick referred Kennedy to Dr. Robert Schriber, a rheumatologist in Dayton, Ohio.[4] Kennedy underwent the examination on August 30, 2012. Dr. Schriber opined: "American College of Rheumatology does not consider fibromyalgia to be disabling on a long-term basis. There is no evidence for any potentially disabling rheumatic illness present in this individual. I believe she is capable of any form of employment that would be appropriate for a 51-year-old woman. Certainly she is capable of executive-level activities." Id. at 1050. Dr. Schriber was asked whether Kennedy's condition was "considered totally disabling." Id. at 1051. Dr. Schriber stated that Kennedy's "primary symptom is pain, " "there is no medical evidence to support a disabling health condition, and "there are no disabling signs/objective findings in the medical record." Id. Dr. Schriber stated that Kennedy's "treatment plan does seem appropriate with the exception that she should be encouraged to undertake a physical regimen including aerobic conditioning to attain a heart rate of 80% of max for her age for 40 minutes four days a week followed by stretching." Id. Dr. Schriber concluded that Kennedy had no restrictions, she was able to return to work as an executive, and that she did not have any cognitive or safety issues that would impact her work ability. Id.

In a letter dated November 1, 2012, Sedgwick informed Kennedy that it had concluded that she no longer satisfied the eligibility requirements under the Plan. The letter cited the definition of "disability" contained in the December 2007 Plan, before the most recent amendment: "the inability of an Employee to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience, provided that the inability results from an illness or accidental ...

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