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Hines v. The E.I. Dupont De Nemours and Company Long Term Disability Plan

United States District Court, D. South Carolina, Greenville Division

March 26, 2019

ANGELA HINES, Plaintiff,



         This is an action seeking long-term disability benefits which is governed by the Employee Retirement Income Security Act (“ERISA”). This matter is before the Court on the parties' Joint Stipulation, ECF No. 18, their Cross-Motions for Summary Judgment ECF Nos. 17, 19, and is based on an administrative record, ECF Nos. 18-1 to 18-26. For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiff's Motion for Summary Judgment is DENIED.


         A. Plaintiff's Employment and Sick Leave

         On November 29, 2010, E.I. du Pont de Nemours and Company (“DuPont”) hired Plaintiff as an Operator/Mechanic at its Cooper River Plant. In this position, she monitored, operated, and performed basic maintenance on equipment. It is undisputed that Plaintiff was a participant in the E.I. du Pont de Nemours and Company Total and Permanent Disability Income Plan (“TPD Plan” or “Defendant”).

         On May 4, 2012, Plaintiff reported to DuPont's medical department because she felt weak and clammy. At that time, her blood pressure was high and an electrocardiogram (EKG) showed tachychardia (elevated heart rate). She was sent to an emergency clinic. There, she was told to go home, rest, and follow up with her primary care doctor. Plaintiff briefly reported back to work on May 14, 2012, but went back to the medical department that day. She had high blood pressure and an elevated heart rate. She also reported passing out at home and having episodes in which she felt exhausted, weak, and unable to tolerate heat. Her last day of work at DuPont was May 14, 2012.

         B. Plaintiff Obtained a Diagnosis with Limited Work Restrictions.

         After going out of work, Plaintiff's doctor of osteopathy, Harold Nicolette, sent her to Dr. Robert Leman, the co-director of an electrophysiology lab. On June 12, 2012, Plaintiff met with Dr. Leman and reported she had some dizziness and fatigue with activity and effort. She reported that her resting heart rate was 100 beats per minute ("bpm"). Dr. Leman, however, noted that Dr. Nicolette had earlier performed a Holter monitor study showing an average heart rate of 88 bpm, a minimum rate of 60 bpm, and a maximum rate of 154 bpm with exercise. He noted that Plaintiff's recent EKG showed “normal” activity and a recent treadmill test was “negative” for tachycardia. [Her] physical exam was unremarkable and her “heart [was] regular.” Dr. Leman gave Plaintiff a preliminary diagnosis of postural orthostatic tachycardia syndrome ("POTS")[1], albeit somewhat uncertainly: “she probably has a POTS like feature of has [sic] intrinsic anxiety with elevated heart rates attributable to that.” Dr. Leman did not order any work restrictions.

         At her next appointment on July 23, 2012, Plaintiff said “she went home and read about POTS and she feels she is in agreement with me [Dr. Leman].” She said she did not feel any better and had to urinate frequently. Dr. Leman noted that Plaintiff had a history of “questionable” fibromyalgia symptoms and diarrhea. He also noted that Plaintiff was not complying with his directive to reduce water intake. A physical exam was unremarkable. Dr. Leman recommended that Plaintiff switch to decaffeinated coffee, add more sodium to her diet, and stop drinking so much water. He thought this treatment would avoid the diarrhea and urinary frequency and “would improve her symptoms entirely.” He stated that Plaintiff “should avoid dangerous work projects” but did not impose any other work restrictions.

         On September 24, 2012, Dr. Leman stated that Plaintiff has “multiple somatic complaints and what I believe to be POTS.” Her physical exam was unremarkable except for high blood pressure and heart rate. He again noted that Plaintiff was not complying with his recommendation to reduce her water intake. Dr. Leman stated:

Her previous workup has been relatively unremarkable and it has been difficult to get her to do the things that I think would be helpful with her care. I think she understands this but has this almost addiction to water. Obviously, we may have to think about psychiatric or endocrine help if this continues.[2]

         Dr. Leman opined that Plaintiff might be able to be retrained and work other jobs: “I really think we are going to have to retrain her and get her a job that she can do with her symptoms. . . . We will try to talk with her job sources to see if we can get her retrained to a different job.”

         On October 1, 2012, Dr. Leman wrote a letter stating that Plaintiff had been “diagnosed with POTS.” The letter further stated that Plaintiff “should avoid any job duties that would put her at risk of injury which would include utilizing heavy equipment.” Dr. Leman, however, did not state that Plaintiff was incapable of any work activity, and he did not provide specific work restrictions other than use of heavy equipment.

         On October 4, 2012, Dr. Marcus Schaefer wrote a letter stating that Plaintiff had “what appears to be a cardiovascular problem. Unfortunately, several physicians including cardiologists have been unable to accurately diagnose and effectively treat her illness. At times, she has an arrhythmia, which at time leads to syncope and collapse.” He noted that Plaintiff's job description “requires her to be able to start up and shut down hazardous equipment, ” and “work at high, precarious places.” He recommended that she be “[m]edically restricted from performing the job responsibilities of an Operating Technician” for at least 6-12 months. He did not state that Plaintiff was unable to perform other occupations, and he did not provide work restrictions, aside from performing the hazardous duties associated with her own job. He was unable to estimate when Plaintiff could return to work at her current position. Yet, he stated: “Because she is otherwise healthy and robust at the age of 37 it is my opinion found [sic] to resolve her near syncopal collapse and severe fatigue will be resolved.”

         C. Plaintiff Applied for and Began Receiving Disability Benefits from DuPont.

         On October 4, 2012, Lynne Jamison, a nurse in DuPont's medical department, filled out a medical evaluation form and submitted a claim for disability benefits to Aetna Life Insurance Co. ("Aetna") on Plaintiff's behalf, along with medical records. Ms. Jamison listed Plaintiff's objective diagnostics (episodes of elevated heart rate and blood pressure), as well as her subjective complaints (weakness, blurred vision, delayed reflexes, intolerance of heat, etc.). She stated the primary diagnosis was “POTS Syndrome per Robert Leman, MD, ” with secondary diagnoses of hypertension and tachycardia. She stated the POTS diagnosis interfered with Plaintiff's work activities. She described a number of current limitations (cannot stand for longer than one hour, cannot bend over or squat without becoming dizzy, etc.) and purported permanent restrictions (no work in the heat, no sitting for long periods, etc.). Presumably, these limitations were reported to Ms. Jamison by Plaintiff because they are not found in the medical records of the treating physicians in the Administrative Record. Ms. Jamison also wrote, albeit ambiguously, that Plaintiff's impairments were permanent and she was not able to do clerical activity, [3] though no physician had made those findings.

         On November 7, 2012, Aetna reviewed the information available at that time and determined that, "at present," Plaintiff was totally disabled from any gainful occupation. The approval letter, however, noted that “[Aetna] will periodically re-evaluate [Plaintiff's] eligibility by requesting updated medical information from [Plaintiff's] attending physician or an independent physician.”

         D. Plaintiff Continued to Seek Medical Care After Disability Finding.

         On March 25, 2013, Plaintiff met with Dr. Leman and her primary complaint was headaches. Dr. Leman stated that Plaintiff “had some symptoms that were thought to be POTS.” Plaintiff admitted that “[s]he does drink two glasses of wine about every other day.” Dr. Leman appeared to be out of ideas, noting “her symptom complex is very difficult” and “[he has] given it [his] best.” Dr. Leman recommended that Plaintiff see a neurologist and did not mention any work restrictions.

         As part of a neurological work up, on April 11, 2013, Plaintiff underwent an MRI of her brain. Multiple doctors reviewed the MRI results and found that everything looked normal and unremarkable. On June 6, 2013, Plaintiff underwent a sleep study administered by Dr. Jonathon Halford, a doctor board-certified in sleep medicine. Dr. Halford observed normal cardiac and sinus rhythms throughout the night. He found no significant evidence of sleep apnea.

         On April 28, 2014, Plaintiff was seen by Dr. Lars Runquist, a cardiologist. Dr. Runquist performed a physical exam and observed that Plaintiff “is a middle aged healthy appearing white female in no acute distress” with “regular [heart] rate and rhythm, ” normal bowel sounds, “no lower extremity edema, ” and “normal pulses [in] all extremities.” He noted that Plaintiff was given a POTS diagnosis, but she “never had a tilt test.” He thought more diagnostic evidence was needed and ordered an EKG, a Holter monitor study, and a tilt table test to be performed by Dr. Leman. He did not issue work restrictions. On April 28 and May 20, 2014, Plaintiff underwent two EKGs, and the physicians did not find any abnormalities. Plaintiff also underwent a Holter monitor study that showed “no arrhythmia” and “no symptoms.” On June 2, 2014, Plaintiff was seen by Dr. Leman who noted that she “has been very difficult to treat because of her inability to follow therapy that is recommended.” Her physical exam showed: “her heart is regular, the PMI is normal, and she has no murmurs or gallops. . . . Her bowel sounds are normal. Her extremities reveal good pulses and no edema.” Dr. Leman noted that Plaintiff “has a lot of somatic complaints, ” but her MRI was “normal” and the sleep apnea study was “normal.” He agreed with Dr. Runquist that “we should do a tilt table test, ” but could not do so because “unfortunately [their] table [was] not working at the present time.” He did not discuss work restrictions.

         E. Plaintiff Moved to Georgia.

         In August 2014, Plaintiff moved to Georgia. Plaintiff did not establish medical care with a doctor in Georgia until September 3, 2015, over a year from her last appointment with Dr. Leman. Plaintiff's new primary care physician was Dr. Robert Lemley. Her initial appointment was on September 3, 2015, with a follow-up on October 16, 2015. Dr. Lemley's physical exams were relatively unremarkable. Plaintiff gave Dr. Lemley disability forms, but he had little knowledge of her medical condition at that time and did not have prior medical records to rely on. Yet, at Plaintiff's request, Dr. Lemley went ahead and filled out the form for Plaintiff. He did not list any diagnosis. He noted that Plaintiff reported no improvement and that she was unable to stand for periods of time. Aside from the reference to prolonged standing, he did not impose any work restrictions or state that she was unable to work in any capacity.

         Dr. Lemley ordered lab testing and referred Plaintiff for evaluation with a neurologist. Subsequent lab testing was negative. Plaintiff was seen by a neurologist, Dr. Hartmann, on February 1, 2016. (AR 000672, 000727; 816-818.) The neurologist's evaluation, including nerve testing and electromyography (EMG) studies, did not find any abnormalities. At a follow-up appointment on March 25, 2016, Dr. Lemley indicated that further treatment of her postural lightheadedness and completion of disability forms should be done by specialists. He told Plaintiff to stop smoking and go the gym every other day.

         F. Aetna Denied Plaintiff's Claim for Failure to Provide Sufficient Evidence of Continued Disability.

         Before Plaintiff established care with Dr. Lemley, Aetna sent multiple requests for updated medical information. On June 11, 2015, Aetna sent a request for “objective medical evidence from [her] attending physician to determine if [she] remain[ed] totally disabled, ” and instructed Plaintiff that her current physician needed to complete an enclosed Attending Physician Statement (“APS”) and return it by July 10, 2015. Plaintiff did not respond. On July 16, 2015, Aetna sent Plaintiff a second request for updated medical evidence and an APS. On August 28, 2015, Plaintiff informed Aetna that she had moved to Georgia, admitted that “I do not currently have a regular doctor, ” and requested more time to find a doctor.

         On September 1, 2015, Aetna responded and provided Plaintiff eight additional weeks to find a doctor, provide a medical update, and return a completed APS. On September 4, 2015, Plaintiff sent Aetna the office visit notes from her initial visit with Dr. Lemley. Aetna replied that Plaintiff needed to submit a completed APS. On October 6, 2015, Aetna sent another request for proof of continued disability with a deadline of November 4, 2015. The letter noted: “the physician statement must provide us with information regarding how your medical condition imposes restrictions and limitations upon your ability to perform any gainful work.”

         On October 16, 2015, Aetna received Dr. Lemley's office visit notes from October 16, 2015, and his completed APS. Aetna analyzed the new records and observed that there was “no real information” in the APS, “no DX [diagnosis] listed, ” and that the doctor “lists only R&Ls [restrictions and limitations] ee [employee] has told him about[, ] not symptoms he is aware of.” On October 21, 2015, Gloria Hoehne, a registered nurse, performed a clinical review of the file, analyzing the old and new medical records in detail. Ms. Hoehne concluded there was no objective medical evidence showing any restrictions or limitations on Plaintiff's ability to work:

The information currently on file does not provide any abnormal physical, neurological, cardiac or other findings that would preclude the claimant from performing full time functional activities in any capacity.
It was previously noted there was a working diagnosis of POTS-like symptoms with reported episodes of dizziness & syncope but there are no diagnostic workups, cardiology notes or confirmation of diagnosis on file.
The claimant's reported symptoms would only warrant avoidance of safety sensitive activities (e.g. operation of dangerous machinery, working at heights, working in potentially dangerous situations/environments, possible driving restrictions, etc.) all depending on the most recent reported syncope episode.
At this time we have no physician providing specific R&L's or recommending current total functional impairment with supporting correlated physical & diagnostic exam findings from a physical, neurological or cardiac perspective.

         In January 2016, Aetna called Plaintiff and informed her that more medical information was needed to substantiate her disability. Plaintiff stated she had a neurologist appointment on February 1, 2016, and Aetna instructed her to send any new neurology records because Dr. Lemley's office visit notes were not enough to show continued disability. Plaintiff, however, did not send any new records after her appointment.[4]

         On February 22, 2016, Aetna sent Plaintiff another written request for updated medical information and a physician statement addressing any restrictions and limitations imposed by her medical condition. Aetna advised Plaintiff that her benefits would be terminated if the requested information was not received by March 22, 2016. Plaintiff did not respond.

         On March 30, 2016, Aetna informed Plaintiff that she was no longer eligible for benefits under the TPD Plan because she had failed to respond to requests for evidence of ongoing disability. In its determination letter, Aetna detailed its repeated requests for medical information from June 2015 through February 2016, a period of over eight months. Aetna explained that the new office visit notes and physician statement from Dr. Lemley contained “very limited information” and the registered nurse, Ms. Hoehne, found that the medical information on hand “was not enough to support [Plaintiff's] disability.” Aetna explained that Plaintiff had completely failed to respond to the most recent requests for proof in January and February. Plaintiff's benefits were terminated effective March 31, 2016.

         G. Plaintiff's Sees a New Cardiologist Who Casts Doubt on POTS Diagnosis.

         On April 7, 2016, Plaintiff was seen by Dr. Robert Sorrentino, a cardiologist. Dr. Sorrentino noted that Plaintiff “recently had a normal EMG study, ” and that her most recent syncope episode was September 15, 2015, over six months ago. Plaintiff “complain[ed] of chronic fatigue, dizziness, short bursts of palpitations (seconds), and lightheadedness, ” as well as diarrhea. However, Plaintiff inconsistently reported that her worst time of day was in the afternoon (to Dr. Sorrentino) and in the morning (to the nurse). Dr. Sorrentino noted there was no history of tilt-table testing. His physical exam revealed normal functioning of the respiratory, cardiovascular, gastrointestinal, neurologic, and other systems. There were no significant changes in heart rate and blood pressure when moving from lying to sitting to standing. Overall, Dr. Sorrentino thought the POTS diagnosis was “suspect without further data.” He noted that Plaintiff's “neurologic complaints sound very worrisome except for the apparent lack of physical findings or abnormal studies.” He further noted: “there is a very strong psychologic overlay to her many somatic complaints and she may ultimately need a psychiatric evaluation.” However, Dr. Sorrentino declined to make a psychiatric referral until he reviewed Plaintiff's prior records.

         On April 21, 2016, Plaintiff had a follow-up appointment with Dr. Sorrentino. Plaintiff reported continued dizziness with standing and daily palpitations. Her physical exam was normal, and there were no significant changes in her blood pressure and pulse rate when moving from lying to sitting to standing. Dr. Sorrentino stated that her symptoms did not match typical POTS. He ordered a tilt table test. He stated that if there was no definitive diagnosis, he would recommend behavioral therapy and psychotherapy. Dr. Sorrentino also ordered a urinalysis to test for carcinogens, which came back negative.

         On May 18, 2016, Dr. Sorrentino administered a tilt table test to revisit the POTS diagnosis. Plaintiff had a “normal response, ” and “[t]here was no evidence for postural orthostatic tachycardia syndrome.” (AR 000693.) This test essentially refuted the POTS diagnosis. In the patient discharge instructions, next to the prompt for “physical activity, ” Dr. Sorrentino wrote there was “no restric” as in “no restriction” for physical activity.

         H. Plaintiff Appealed the Initial Denial of Benefits.

         After the initial denial of benefits, Plaintiff filed an appeal on September 26, 2016. In support of the appeal, Plaintiff provided Aetna with the additional medical records discussed above, including records from the South Carolina physicians (Dr. Leman, Dr. Runquist, and Dr. Halford) and the more recent Georgia physicians (Dr. Lemley, Dr. Hartmann, and Dr. Sorrentino). Plaintiff later supplemented the appeal with October 2016 medical records relating to treatment for a grease burn that Plaintiff got while cooking chicken.

         The appeal stated that Plaintiff was totally disabled by three conditions: POTS Syndrome, hypertension, and tachychardia. The appeal referenced symptoms reported by Plaintiff: weakness, blurred vision, slurred speech, delayed reflexes, heat intolerance, and fainting. The appeal primarily ...

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