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Nicholson v. Standard Insurance Co.

United States District Court, W.D. Arkansas, Fort Smith Division

March 19, 2018

DAVID C. NICHOLSON PLAINTIFF
v.
STANDARD INSURANCE COMPANY, et al. DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Plaintiff David C. Nicholson brings this action pursuant to the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., alleging Defendants Standard Insurance Company, et al. (“Standard”) wrongly denied his claim for disability benefits. Before the Court are the administrative record (Doc. 19), Nicholson's brief (Doc. 20) and reply (Doc. 27), and Standard's brief (Doc. 24). For the reasons stated herein, the Court finds that Standard's decision to deny benefits is AFFIRMED, Nicholson's claim is DENIED, and this case is DISMISSED WITH PREJUDICE.

         I. Background

         Nicholson was a participant in a long-term disability plan (“Plan”) issued and administered by Standard. The Plan provides that “[i]f you become Disabled while insured under the Group Policy, we will pay [long term disability] Benefits according to the terms of the Group Policy after we receive Proof Of Loss satisfactory to us.” The Plan granted discretion to Standard to interpret the Plan and to resolve all questions arising in the administration, interpretation and application of the Plan including determining who is entitled to benefits.

         Nicholson stopped working on September 28, 2014 and submitted a claim for benefits, asserting that he was unable to work due to back pain.

         Nicholson's employer, Cudd Energy Services, sent his job description to Standard and identified his occupation as “CPS Field Salesman” and “CPS District Salesman.” Standard had a vocational expert, Paul Kangas, review the employer's job description and Nicholson's own description of his job. Kangas determined that Nicholson had an occupation in “the Light strength range.”

         Dr. Gary Nudell, a board certified internist, reviewed Nicholson's medical records. Dr. Nudell noted that Nicholson's treating physician, Dr. Suh Niba, stated that Nicholson was unable to work. However, Dr. Nudell noted that there were limited clinical findings related to Nicholson's self-reported complaints of pain and that he was not referred for specialty care. Based on his review of the medical records, Dr. Nudell concluded that Nicholson “could perform light level activity on a full time basis with reasonable continuity.”

         In reliance upon this information, Standard denied Nicholson's claim. After the denial, Nicholson's employer sent a letter that modified his job description and Dr. Niba sent correspondence providing further support for his claim.

         Standard asked the vocational expert to reexamine Nicholson's occupation in light of his employer's letter. After reviewing the letter, Kangas revised his opinion and determined that Nicholson's occupation “would have involved physical demands within the Medium demand classification.”

         Standard asked Dr. Nudell to reconsider his prior opinion in light of the additional correspondence from Dr. Niba. Dr. Nudell wrote an addendum to his original report and stated that Dr. Niba's correspondence did not cause him to change his opinion. Dr. Nudell noted that the medical records did not support a conclusion that Nicholson could not perform all of the activities associated with a medium level occupation. However, he suggested that if there were questions regarding Nicholson's ability to lift, sit, and stand as a result of disc disease, Standard should have an orthopedist review the records.

         Dr. Kenneth J. Kopacz, a board certified orthopedic surgeon, reviewed Nicholson's records and determined that “[b]ased upon the medical documentation, there is no clinical support for functional impairment.” Dr. Kopacz further concluded that Nicholson should be able to perform all of the activities associated with a medium level occupation.

         Standard advised Nicholson that it had considered his supplemental materials and had consulted two physicians, including a qualified orthopedist, but still had concluded that Nicholson had not presented evidence substantiating his disability. Standard advised Nicholson that he could file an administrative appeal.

         Nicholson filed an appeal. As part of Nicholson's appeal, his lawyer provided medical records. Standard alleges that it had already obtained most of these records.

         Dr. Mark Shih, who is certified in physical medicine and rehabilitation, reviewed Nicholson's records on appeal. Dr. Shih noted “[v]isit notes with Dr. Niba document only [Nicholson's] subjective complaints of increased difficulty without abnormality on exam, nor imaging changes, without support for limitations and restrictions.” Shih further noted that he “would typically expect there would be a change in [Nicholson's] pain medication ...


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