Niswonger v. PNC Bank Corp. & Affiliates Long Term Disability Plan

612 F. App'x 317
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 14, 2015
Docket13-4282
StatusUnpublished
Cited by1 cases

This text of 612 F. App'x 317 (Niswonger v. PNC Bank Corp. & Affiliates Long Term Disability Plan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Niswonger v. PNC Bank Corp. & Affiliates Long Term Disability Plan, 612 F. App'x 317 (6th Cir. 2015).

Opinions

HELENE N. WHITE, Circuit Judge.

Samuel Niswonger appeals from the district court’s order upholding Liberty Life Assurance Company of Boston’s (Liberty) denial of his claim for long-term “any occupation” disability benefits. Because we conclude Liberty arbitrarily and capriciously denied Niswonger’s claim, we VACATE and REMAND.

I.

Niswonger was employed as a financial advisor with PNC Financial Services Group, Inc. (PNC) until January 19, 2010, when he stopped working due to anxiety and shortness of breath. He filed a claim for disability benefits under PNC’s group disability insurance plan with Liberty.

Under PNC’s long-term disability plan, an employee becomes eligible for long-term disability benefits upon proof of continued (1) disability, (2) regular attendance of a physician, and (3) appropriate available treatment. Only the disability requirement is disputed here.

The plan provides long-term disability benefits for an initial period of eighteen months if the claimant is disabled as a result of an injury or sickness and is unable to perform the material and substantial duties of his own occupation, and continued benefits if the person is unable to perform, with reasonable continuity, the material and substantial duties of any occupation. “Own occupation” means “the Covered Person’s occupation that he was performing when his Disability or Partial Disability began.” The plan defines “any occupation” as “any occupation the Covered Person is or becomes reasonably fitted by training, education, experience, age, [319]*319physical and mental capacity.” Liberty is both the issuer of the plan and its administrator.

Liberty denied Niswonger’s claim for “own occupation” benefits, and after an internal appeal, upheld the denial on October 1, 2010. Niswonger then brought an action in the district court under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B). Reviewing the “quantity and quality of the medical evidence” in the administrative record, the district court found that Liberty’s denial of “own occupation” benefits was arbitrary and capricious. Niswonger v. PNC Bank Corp. & Affiliates Long Term Disability Plan (Niswonger I), No. 3:10-cv-377, 2011 WL 3360262, at *2, 10 (S.D.Ohio Aug. 3, 2011). The district court determined that the “evidence in the record overwhelmingly] establishes Plaintiffs inability to do his job.” Id. Liberty did not appeal that determination and paid Niswonger “own occupation” benefits for eighteen months, through October 20, 2011.

Liberty then began to assess Niswon-ger’s eligibility for “any occupation” benefits. As part of its review, Liberty obtained a peer review of Niswonger’s file by a physician board certified in internal medicine and pulmonary medicine. The reviewer, Dr. Wager, noted that Niswonger had restrictive lung disease, among many other supported medical diagnoses, but also concluded that a specific diagnosis was unclear and that “Niswonger could be impaired from a heretofore undiagnosed medical condition causing these [breathing/choking] episodes, but there is no medical evidence for such impairment in the current file.”

Dr. Wager concluded:

The claimant appears able to exert up to ten pounds of force occasionally, sit for long periods, and stand or walk for brief periods of time on a full time basis. He could have physical capacity slightly above this sedentary level, but assessing that would require cardio-pulmonary exercise testing, if necessary. These restrictions and limitations are due to cardiac disease and likely restrictive lung disease ... and are likely to be permanent.

Liberty also conducted a vocational analysis using Dr. Wager’s conclusions. The analysis found that “Niswonger would be able to perform the essential functions of his own occupation,” and also determined that he had the ability to perform the occupations of Financial Sales Manager, Insurance Officer Manager, and Insurance Sales Agent.

Based on the information in the file, including Dr. Wager’s review and the vocational analysis, Liberty denied Niswon-ger’s claim for “any occupation” benefits. Liberty’s February 15, 2012 denial letter stated: “[T]here is insufficient evidence to establish or substantiate that Mr. Niswon-ger is physically or psychologically impaired from performing, with reasonable continuity, the material and substantial duties of the above occupations based on his capacity and skill level.”

■Niswonger filed an appeal with Liberty on August 10, 2012. His appeal included over 375 pages of updated medical records, including the report from a CT scan performed in April 2012 that revealed “[s]mall groundglass opacities at both lung bases creating a mosaic attenuation pattern of the lung parenchyma or new since the previous CT scan [from August 18, 2009].” The report added, “Mild interstitial pulmonary edema or infectious inflammatory interstitial pneumonitis is in the differential diagnosis.”

The updated medical records include a blood test ordered by Dr. Wagshul, a [320]*320board-certified pulmonologist. The test found that Niswonger had mycoplasma pneumoniae and chlamydia pneumonaie.1 Dr. Wagshul also ordered a pulmonary function test (PFT), which indicated that Niswonger had a “[s]evere airway obstruction.” In particular, the test found that Niswonger’s forced expiratory volume (FEV) was 32% of his predicted normal value. After given a bronchodilator, his FEV improved to 48%. Niswonger’s total lung capacity (TLC) was 89% predicted normal value. The report noted that Nis-wonger’s “effort was fair but inconsistent” because a “severe cough made it hard to perform some maneuvers.” A PET scan revealed that Niswonger had a 5.0 mm nodule in his right mid-lung.

Dr. Wagshul provided a sworn statement to Niswonger’s counsel, stating that he diagnosed Niswonger with, among many things, bronchitis and severe obstructive lung disease. He concluded that Niswonger was “not able to perform any occupation from the time he got sick to even at the present right now.” Dr. Wag-shul also acknowledged that Niswonger produced the best results on the PFT, and stated he did not doubt the test’s veracity.

Liberty obtained “an independent review of all of the medical information contained in [Niswonger’s] claim file.” Dr. Brown, a board-certified physician in internal medicine with a sub-specialty in pulmonary disease conducted the review. Dr. Brown found that Niswonger “has no physical impairment,” and concluded that he had “sustained full time capacity from 10/20/11 forward.” Dr. Brown recalled Niswonger’s medical history, which included chronic obstructive pulmonary disorder (COPD), and three PFT results. He opined that the “pulmonary function test data are not useful” because there was no data to explain the change in the reported TLC from the first test done in 2008 to the third test in 2012. He also reasoned that he could not “meaningful[ly] interpret[]” the 2012 test because Niswonger was coughing severely,1 and although he did not “have access to the raw PFT data for review,” he thought Niswonger’s performances on all the three tests were “not satisfactory.”

In a letter dated October 18, 2012, Liberty denied Niswonger’s claim for “any occupation” benefits. Relying on Dr. Brown’s findings, Liberty concluded: “Based on 'our review, the totality of information on file does not support Mr.

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