United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION & ORDER [RESOLVING ECF NO.
Y. Pearson, United States District Judge
Shelley Westfall commenced this action under the Employee
Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1001 et seq., against Defendant
Liberty Life Assurance Company of Boston. Plaintiff
challenges the administrator's decision denying her
long-term disability benefits. Pending before the Court are
briefs as contemplated by Wilkins v. Baptist Healthcare
System, Inc., 150 F.3d 609, 619 (6th Cir. 1998)
(Gilman, J., concurring). Plaintiff has filed an
opening brief. ECF No. 16. Defendant has filed a brief in
response, which it styles as a motion for judgment on the
merits. ECF No. 17. Defendant also filed proposed findings of
fact and conclusions of law. ECF No. 18. Plaintiff then filed
a response in support of her position. ECF No. 19. For the
reasons that follow, the Court denies Defendant's motion
and remands the case to the plan administrator to conduct a
new review, taking into account Dr. Kissinger's
identification of emotional lability as a symptom that
works in asset protection at a WalMart distribution center.
ECF No. 13-1 at PagelD #: 231. Plaintiffs son died while
working at the same WalMart distribution center in April
2015. Id. at PagelD #: 321. Plaintiff last worked on
April 20, 2015. Id. at PagelD #: 128. Plaintiff
received long-term disability benefits from November 2, 2015
through January 14, 2016, but benefits beyond January 14,
2016 were denied. Id. at PagelD #: 144. Plaintiff
appealed Defendant's decision, but Defendant maintained
its original decision. Id. at PagelD #: 144-48.
the denial of long-term disability benefits, Plaintiff filed
this action. ECF No. 1.
Initial Application for Benefits
her son's death, Plaintiff went on short-term disability
leave, which ended November 1, 2015. ECF No. 13-1 at PagelD
#: 317. In a letter dated September 4, 2015, Defendant
informed Plaintiff that her short-term disability benefits
were going to expire, and therefore, she would have to apply
for long-term disability benefits to continue receiving
benefits. Id. Plaintiff complied with this
instruction and applied for long-term benefits.
September 8, 2015, Defendant acknowledged that it had
received Plaintiffs request for consideration of long-term
disability benefits. Id. at PagelD #: 316. In an
activities questionnaire form Plaintiff completed in
conjunction with the request, she wrote a note stating she
was not suffering from a physical disability, but rather, her
heart was broken. Id. at PagelD #: 319. The form
included a list of tasks that individuals routinely complete,
such as bathing, grocery shopping, and vacuuming, and the
applicant had to indicate who in their life performs those
tasks. Id. at PagelD #: 320. For every task on the
list, Plaintiff indicated that she performed the task on her
own without any assistance. Id. The form also asked
the applicant to describe their purported disability in their
own words. Id. at PagelD #: 321. Plaintiff wrote
that her son died in her workplace, she could not bring
herself to go back to that site, and she did not want to
speak to people who asked her so many questions. Id
Office Visits & Defendant's Initial Review
her son's death, Plaintiff has paid office visits to two
different doctors: Dr. Mark Kissinger, her primary care
physician, and Dr. Prabnjot Deol, a psychiatrist. Plaintiff
met with Dr. Kissinger on April 17, 2015, May 21, 2015, July
7, 2015, August 10, 2015, September 21, 2015, October 19,
2015, November 23, 2015, and March 2, 2016. She met with Dr.
Deol on at least four occasions: October 23, 2015, November
30, 2015, January 6, 2016, and April 20, 2016. Dr. Kissinger
reported that Plaintiff considered herself "down, but
not depressed, " at her April 17, 2015 appointment.
Id. at PagelD #: 276. At her six-week followup with
Dr. Kissinger, Plaintiff indicated mild improvement, but that
she was still "emotionally distraught" with
"great sadness, " although she had not yet started
to take previously-prescribed medication. Id. at
PagelD #: 273. The notes from Plaintiffs July 7, 2015 visit
with Dr. Kissinger stated that Plaintiff had attempted to go
back to work, but was unable to do so, due to the emotional
effects of returning. Id. at PagelD #: 271. During
the August 10, 2015 visit, Dr. Kissinger's nurse
practitioner recommended referring Plaintiff for a psychiatry
evaluation, and Dr. Kissinger agreed with the recommendation.
Id. at PagelD #: 267. On September 21, 2015, Dr.
Kissinger again referred Plaintiff to a psychiatrist
Plaintiff had previously scheduled an appointment with Dr.
Deol for October 23, 2015, but she had to cancel due to the
birth of her granddaughter. Id. at PagelD #: 264-65.
Dr. Kissinger's notes from the meeting indicate that
Plaintiff had feelings of hopelessness and did not feel
stable enough to return to work. Id. at PagelD #:
265. Plaintiff also reported that marital discord had arisen
since her last visit. Id.
had Dr. Scott Lurie, a board-certified psychiatrist, review
Plaintiffs medical records, and Dr. Lurie drafted a
memorandum summarizing his findings. Id. at PagelD
#: 256-58. Dr. Lurie's assessment included notes from all
meetings with Dr. Kissinger between Plaintiffs April 17, 2015
visit through her October 19, 2015 appointment. Id.
Dr. Lurie concluded that the record before him demonstrated
"limitations on [Plaintiffs] ability to perform tasks at
the location of her employment (and the site of her son's
death)." Id. at PagelD #: 256. He found the
record before him supported a six-week limitation from the
original date of Plaintiffs initial appointment with Dr.
Deol, October 23, 2015, with a possibility for a six-week
extension. Id. Dr. Lurie also concluded that
Plaintiff "might be able to function in a different area
of the distribution center but that cannot be determined
unless the claimant is given a transfer to another
area." Id. at PagelD #: 257. He further
concluded that Plaintiffs symptoms supported a diagnosis of
depression NOS. Id. Dr. Lurie also stated that
"[t]he available record does not document any
psychiatric reason that the claimant could not be allowed to
attempt to return to work in a different area of the
distribution center or in a different location for her
Dr. Lurie's memorandum, Plaintiff continued to see Dr.
Kissinger and began to see Dr. Deol. Plaintiff had her first
appointment with Dr. Deol on October 23, 2015. Id.
at PagelD #: 183. Dr. Deol's notes indicated that he
viewed Plaintiff as suffering from major depression, single
episode. Id. After this initial appointment with Dr.
Deol, Plaintiff had a November 23, 2015 appointment with Dr.
Kissinger, and the notes for that appointment reveal that
Plaintiff had separated from her husband. Id. at
PagelD #: 192. Dr. Kissinger also noted that Plaintiff
suffered days when her sadness rendered her unable to get out
of bed, but such events occurred less often then they had
previously. Id. Plaintiff had a follow-up
appointment with Dr. Deol on November 30, 2015, and at this
meeting, she reported weight gain, suffering from panic
almost daily, and being angry with WalMart. Id. at
PagelD #: 182.
Lurie drafted an addendum to his memorandum, and he issued
the addendum on December 29, 2015. In his addendum, he
concluded that Plaintiff suffered from major depression and
complicated grief. Id. at PagelD #: 211-12. That
said, however, Dr. Lurie concluded that the record before him
did not document sufficiently frequent and severe symptoms or
corroborating mental status findings to support a finding of
ongoing impairment. Id. atPageID#:211.
Dr. Lurie's addendum, Defendant sent a letter to
Plaintiff, dated January 15, 2016, informing Plaintiff that
she did not qualify for long-term disability benefits.
Id. at PagelD #: 207. Defendant claimed that, based
on Dr. Lurie's review, Plaintiffs condition no longer met
the definition of "disability." Id. at
PagelD #: 208.
Defendant denied Plaintiff long-term disability benefits,
Plaintiff retained counsel and filed an appeal. Id.
at PagelD #: 204.
March 2, 2016, Plaintiff had a three-month follow-up with Dr.
Kissinger. Id. at PagelD #: 194. During this
meeting, Plaintiff reported feeling anxiety. Id.
Additionally, even though her long-term disability benefits