Rose v. Hartford Financial Services Group, Inc.

268 F. App'x 444
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 11, 2008
Docket07-5423
StatusUnpublished
Cited by27 cases

This text of 268 F. App'x 444 (Rose v. Hartford Financial Services Group, Inc.) 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
Rose v. Hartford Financial Services Group, Inc., 268 F. App'x 444 (6th Cir. 2008).

Opinion

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Elizabeth Rose claims that Continental Casualty Company (“Continental”) wrongfully terminated her long-term disability benefits in violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. The district court determined that Continental’s decision to terminate Rose’s benefits was not arbitrary and capricious, and Rose appealed. Upon review of the administrative record, we also conclude that Continental’s decision was not arbitrary and capricious, and we therefore affirm the judgment of the district court.

I.

Elizabeth Rose previously worked as a psychotherapist and clinical social worker at the Medical Center Clinic, P.A., in Pensacola, Florida. In 1994, Rose began receiving long-term disability benefits due to the effects of chronic fatigue syndrome and chronic hepatitis C. 1 Rose’s long-term disability policy (“the policy”) was initially administered by Continental. Under the terms of the policy, which grants Continental discretionary authority to construe and interpret the policy, an employee is considered totally disabled and eligible for long-term disability benefits if, during an initial twenty-four month period, “because of injury or sickness, he is continuously unable to perform the essential and/or majority of duties of his occupation.” After the initial twenty-four month period, an employee is considered totally disabled if “because of injury or sickness, he is continuously unable to perform the duties of any occupation for which he is reasonably qualified by education, training or experience.” Rose continued to receive long-term disability benefits after the initial twenty-four month period, and from time to time, Continental reviewed Rose’s disability claim. 2 *446 When Continental reviewed Rose’s claim in 2004 and 2005, it determined that Rose no longer satisfied the policy’s definition of disability. Rose’s long-term disability benefits were terminated on April 29, 2005.

At the outset of Continental’s evaluation of Rose’s claim, the company requested that Rose complete a “claimant questionnaire.” On the questionnaire, dated July 29, 2004, Rose noted that her current medical conditions included chronic hepatitis C, chronic fatigue syndrome, 3 fibromyalgia, 4 cognitive difficulties, and sleep problems. Rose explained that these conditions made it impossible for her to have a set schedule and that her friends and family helped her with shopping and home upkeep. She further noted that her condition had worsened in the past eighteen months: her fatigue had become more extreme, her fi-bromyalgia now affected her arms as well as her legs, her most recent liver biopsy showed an increase of fibrosis, and she was unable to stand for more than twenty to thirty minutes at a time.

Continental also requested Rose’s medical records from her physicians, Dr. Jeff Foxx, Dr. Mark Doughtery, and Dr. Martin Korkowsky. The records from Dr. Doughtery showed that Rose’s last visit was on September 11, 2003, for a checkup regarding her hepatitis C. Dr. Doughtery diagnosed Rose with hepatitis C, fibro-myalgia, chronic fatigue syndrome, and depression. According to the records from Dr. Foxx, Rose’s last visit occurred on January 13, 2004, for an examination regarding her fibromyalgia and chronic fatigue syndrome. In the records, Dr. Foxx indicated that Rose had multiple sore fi-bromyalgia trigger points. Rose last visited Dr. Korkowsky on April 2, 2003, and the records from this visit noted diagnoses of fibromyalgia and chronic fatigue syndrome.

Additionally, Continental hired an investigative company to obtain surveillance footage of Rose in order to procure evidence of her level of functionality. An investigator videotaped Rose on Wednesday, August 4, 2004, and Thursday, August 5, 2004. 5 On August 4, Rose was observed walking around a convenience store, entering a veterinary clinic, and shopping at a grocery store. During the hour and a half Rose was away from her house, she repeatedly entered, exited, and operated her vehicle. At the grocery store, Rose pushed a shopping cart in a normal manner without any assistance. Rose repeatedly bent, turned, and reached, and she picked up a 37.5 pound bag of dog food and placed it in the lower part of her cart. After paying for her groceries, Rose pushed the “very full cart” to her vehicle and unloaded it without assistance. On August 5, Rose was away from her house *447 for approximately five hours, during which she visited a produce stand, two convenience stores, two retirement homes, and other businesses. The investigator observed Rose assisting an elderly woman enter and exit Rose’s vehicle. At one point, Rose carried the elderly woman’s walker.

On January 6, 2005, a Continental investigator interviewed Rose at her home. During the interview, Rose walked and moved through her home without many noticeable limitations, although at times she limped slightly. While Rose did display pain indicators, such as wincing, moaning, flexing her ankles and legs, rubbing her elbow, and squirming while seated, the investigator noted that Rose had a good range of motion: she twisted in her seat, leaned, reached, swung one leg to push a dog, squatted to close a door, and wrestled with two of her dogs to pull them away from the door. The investigator did not observe any type of cognitive or concentration difficulties, except for Rose’s reversal of a numerical pain scale. The investigator showed Rose the surveillance video, and Rose stated that the video represented her normal level of functionality on one of her best days.

At the interview, the investigator took Rose’s “continuing disability statement.” Rose explained that she cannot keep a schedule, that her cognitive issues are unacceptable for her profession, and that her nausea, fatigue, swollen leg muscles, and chronic pain prevent her from returning to work. Rose noted that she uses a cane 40% to 50% of the time and that she has used the cane more in the past six months. She described her maximum level of functionality on her best day: she can walk for a maximum time of 15 to 20 minutes; she has a slow and limping gait; she can shop for 30 minutes; she can stand for 10 minutes; she can lift and carry items that weigh a maximum of 3 to 4 pounds; she is able to sit for one hour; she can bend, twist, push, pull, and reach; she cannot squat; kneeling is painful; walking up stairs is difficult; she cannot concentrate; she has trouble sleeping; and she has difficulty getting in and out of her vehicle. She noted that she does not do two activities in the same day. However, she also explained that she tries to improve her condition by attempting to stay as physically active as possible.

When contacted by Continental, Rose’s current treating physicians, Drs. Dought-ery and Foxx, did not wish to comment on her ability to work. Continental thus obtained an independent review of Rose’s medical records from Dr. Harvey A. Popo-vich, a certified independent medical examiner, who concluded that Rose was capable of working full-time.

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268 F. App'x 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-hartford-financial-services-group-inc-ca6-2008.