ERISA Long Term Disability Case Citations and references

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Claimant Wins CIGNA Cardiac Disability Case

United States District Court,N.D. Georgia,Atlanta Division.

Robert WERNER, Plaintiff,

v.

ACE USA f.k.a. ACE INA Holdings, Inc.; ACE Disability Plan; Life Insurance
Company of North America d/b/a CIGNA Group Insurance; CIGNA Group Insurance;
Valerie Wandler as Vice President Compensation and Benefits ACE INA Holdings; and
CIGNA Integrated Care, Defendants.

Civil Action File No. 1:07-CV-0932-BBM.

July 28, 2008.

Paulette R. Adams-Bradham, Adams-Bradham, P.C,. Alpharetta, GA, for Plaintiff.

Kenan G. Loomis, Cozen & O'Connor, Donald W. Benson, Littler Mendelson, P.C.,
Atlanta, GA, for Defendants.

 

ORDER

BEVERLY B. MARTIN, District Judge.

*1 This matter is before the court on the Motion for Summary Judgment filed by
Defendants ACE USA, ACE INA Holdings, Inc., and ACE Disability Plan (collectively,
"ACE") [Doc. No. 45], the Motion for Summary Judgment filed by Defendants Life
Insurance Company of North America d/b/a CIGNA Group Insurance and CIGNA
IntegratedCare (collectively, "LINA") [Doc. No. 47], and Plaintiff's Motion for
Summary Judgment [Doc. No. 49]. Also pending are the Joint Motion for Leave to
File Excess Pages by Life Insurance Company of North America [Doc. No. 55] and the
Plaintiff's Motion to Strike Docket Entries [Doc. No. 68], which are hereby
GRANTED.

 

I. Factual and Procedural Background

This is an action under the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. s 1001 et seq. The plaintiff is Robert Werner ("Mr.Werner"),
formerly a Vice President of Property and Casualty at ACE. He enrolled in the ACE
disability plan (the "Policy"), which was administered by LINA. No party disputes
that the Policy is governed by ERISA. The Policy offers both short term and long
term disability benefits. The definition of disability is the same for both:

The Employee is considered Disabled if, solely because of Injury or Sickness, he
or she is either:

 

1. unable to perform all the material duties of his or her Regular Occupation or
a Qualified Alternative; or

2. unable to earn 80% or more of his or her Indexed Covered Earnings.

(First Am. Compl. Ex. A, at 4.) "Regular Occupation" is defined as the "occupation
the Employee routinely performs at the time the Disability begins. In evaluating
the Disability, the Insurance Company will consider the duties of the occupation
as it is normally performed in the general labor market in the national
economy."(Id. at 22.)

Mr. Werner was first diagnosed with coronary artery disease in 1993. In March
2000, a cardiac catherization revealed that he had progressive coronary disease in
three vessels and an ulcerative lesion in one vessel and significant left
ventricular systolic dysfunction. He suffered his first heart attack on May 10,
2000, and underwent a quadruple vessel myocardial revascularization procedure.
After the operation, Mr. Werner developed atrial fibrillation in the upper
chambers of his heart. In August 2000, he suffered another heart attack. After
this second heart attack, Mr. Werner was diagnosed with significant diffuse
disease of his original coronary arteries. Mr. Werner also had a severe lesion and
stenosis in the intermediate branch of the posterior wall. Dr. Michael Savage
noted that Mr. Werner's acute and long term risks were higher than normal. Also in
August 2000, Mr. Werner received a stress test and an echocardiogram, which
revealed a lesion of the distal circumflex artery and left ventricular
dysfunction, respectively. Mr. Werner began receiving long term disability
benefits from LINA on November 5, 2000. On July 16, 2001, the Social Security
Administration approved Mr. Werner for disability payments dating back to November
2000.

*2 Various physicians opined that Mr. Werner was permanently unable to return to
work. On both January 14, 2002, and May 14, 2002, Dr. Allan Stahl ("Dr.Stahl")
wrote "never" in response to written queries about Mr. Werner's estimated date of
return to work. (Administrative R. 901, 911.) On August 2, 2002, Dr. Armand Auger
("Dr.Auger"), Mr. Werner's primary care physician, termed Mr. Werner "disabled"
and "not able to perform these activities," referring to work assignments. (Id. at
853.)On August 7, 2002, Dr. Paul Sweeney ("Dr.Sweeney") responded "unlikely to
return" to the same question on a copy of the same form. (Id. at 869.)Drs. Stahl
and Sweeney are both cardiologists. LINA's own representatives observed in March
2001, July 2001, and January 2002 that Mr. Werner's disability "may be
perm[anent]" and he may never be able to return to work, noting that his position
as vice president "would be very stressful and that [stress] is also a limitation
given by the doctor."(Id. at 840-41.)

On June 7, 2002, LINA denied Mr. Werner's claim for continued long term disability
payments. The decision was based on LINA's view that Mr. Werner's functional
capabilities and condition had improved. Though LINA acknowledged in its letter
Dr. Stahl's May 14, 2002, opinion that Mr. Werner could "never" return to work, it
stated that "[n]o medical evidence has been provided to substantiate a continued
disability."(Id. at 902.)Mr. Werner appealed the denial of his benefits on June
24, 2002. He was hospitalized for atrial fibrillation and angina on July 1, 2002.
LINA sought additional medical records and received, among other records, the
assessments of Drs. Stahl and Sweeney discussed above. On August 22, 2002, a nurse
claim manager reviewed Mr. Werner's case and determined that he was "stable on
complex medical [management], however he has exertional angina which stress would
trigger."She noted that he "has chest pain/angina w[ith] exertion currently."(Id.
at 850.)Based on this review and the nurse claim manager's opinion that Mr. Werner
"would be unable to perform his stress occupation," Mr. Werner's claim was
re-opened and his long term disability benefits reinstated. (See id. at 839.)

In March 2003, LINA again solicited medical records from Mr. Werner's physicians.
Dr. Auger stated on the Physical Ability Assessment form ("PAA") that "Mr. Werner
is continuously and permanently disabled on the basis of active coronary artery
disease.... His activity and functional capacity are considered very limited."(Id.
at 804.)The PAA required Dr. Auger to estimate the amount of time Mr. Werner could
perform various tasks during an 8-hour work day. Dr. Auger responded that Mr.
Werner was only "occasionally," meaning for under 2.5 hours, able to perform the
following: lifting 10 pounds, carrying 10 pounds, sitting, standing, walking,
climbing regular stairs, seeing, hearing, smell/taste, fine manipulation, and
simple grasp. Dr. William Curley ("Dr.Curley") filled out a PAA and indicated that
Mr. Werner was also limited to only "occasionally" performing such activities as
walking, climbing, stooping, and kneeling, but could "frequently," meaning from
2.5 to 5.5 hours in an 8-hour work day, engage in balancing, and could
"continuously," meaning over 5.5 hours, see, hear, and smell/taste. (Id. at
784-85.)Dr. Curley advised that Mr. Werner had a "permanent disability." (Id. at
783.)Two of Mr. Werner's dermatologists also submitted medical records.

*3 Mr. Werner's case manager reviewed the records with the nurse claim manager,
who stated that Mr. Werner's inability to perform his occupation was not supported
by the evidence. The case manager noted that LINA would "need Cardiac Cath
Reports, Stress Threadmill [sic] Results and/or Nuclear Scan Test Results to
determine how significant the ischemia[ FN1] is."(Id. at 754.)LINA also followed
up with Mr. Werner's cardiologists, but neither Drs. Stahl nor Sweeney had seen
Mr. Werner recently enough to give updated information. On December 29, 2003, LINA
scheduled Mr. Werner for an independent medical examination to be conducted by Dr.
John Adan ("Dr.Adan").

FN1. Ischemia is a "deficiency of blood in a part, usually due to functional
constriction or actual obstruction of a blood vessel."Myocardial ischemia is
a "deficiency of blood supply to the heart muscle, due to obstruction or
constriction of the coronary arteries."Dorland's Illustrated Medical
Dictionary 954 (30th ed.2003).

 

Dr. Adan submitted a general report to LINA that included responses to specific
questions. He stated that Mr. Werner "has definite cardiovascular disease that
prevents him from performing his essentially [sic] job functions. Specifically, in
his work he is required to travel and that he just cannot do."(Id. at 647 .)On the
issue of whether Mr. Werner could return to work if accommodations were made for
his restrictions, he said that the

basic restriction is the low cardiac output, and an inability to increase the
exercise level. Again, that related to the hypertensive ischemic heart disease
with diastolic dysfunction and atrial fibrillation. All of this could be worked
on and theoretically made better but it would take time and somebody who knows
what they are doing.

(Id.) Mr. Werner "does have mental stress in his job and he does require traveling
which he cannot handle at the present time because of the ischemic hypertensive
heart disease with diastolic dysfunction and low exercise tolerance."(Id. at
646.)Dr. Adan concluded by

agree[ing] with the other doctor's evaluation that [Mr. Werner] is unable to
perform his job based on his present medical condition. However, because of
advances in medical science, there are new treatments available which could
improve his functioning and his personal life as well as quality of life.

(Id. at 645.)FN2Finally, Dr. Adan filled out a PAA, indicating that Mr. Werner
could "occasionally" sit, stand, walk, balance, kneel, crawl, crouch, stoop, and
be exposed to extreme temperatures. Mr. Werner could "frequently" reach overhead
and below his waist, and "continuously" hear, see, smell/taste, and engage in fine
manipulation and grasping. Dr. Adan placed Mr. Werner in the "sedentary" category
to describe the physical work level he could sustain. (Id. at 653-54.)He submitted
his full report on January 15, 2004.

FN2. Earlier in the report, Dr. Adan had noted extracorporeal enhanced
counterpulsation, a treatment that Dr. Stahl had apparently advised against,
and newer and improved medications as areas for Mr. Werner to explore.

Based on Dr. Adan's report, LINA continued Mr. Werner's benefits. The case manager
commented that Mr. Werner "could perform sedentary job duties however would be
precluded from job duties due to current condition from component of travel,
exposure to stress and physical exertion."Dr. Adan had classified him as Class III
AHA, meaning "marked limitation-less than sedentary physical activity level."The
case manager also noted his "low cardiac output" and "inability to increase the
exercise level."Though the case manager recorded Mr. Werner's job as sedentary,
she concluded that Dr. Adan's assessment precluded him from his job duties. (Id.
at 635-36.)

*4 In October 2004, LINA solicited updated medical records from Mr. Werner's
doctors. The records submitted by Dr. Sweeney spanned approximately September 2003
to July 2004 and reflected, among other things, that Mr. Werner had been walking
on a track on a fairly regular basis for exercise. He experienced fatigue and
decreased energy but no definite chest pressure or pain. Dr. Sweeney was unsure
whether his inability to do more was "due to ischemia or poor chronotropic
response to exercise."(Id. at 596.)He noted that Mr. Werner refused to take a
stress test because of a cardiac incident he experienced on the treadmill during
the last test. Dr. Sweeney believed the angina was well controlled and barely
symptomatic, but that a pacemaker implantation would likely be necessary at some
point. Dr. Sweeney filled out a PAA dated November 4, 2004, in which he assessed
Mr. Werner as able to "continuously" do most activities such as sitting, standing,
walking, reaching, and lifting and carrying 10 pounds, and "frequently" do many
others, such as climbing, balancing, stooping, and kneeling. The only categories
that Mr. Werner was limited to "occasionally" performing were lifting or carrying
over 10 pounds and exposure to extreme cold.

Dr. Auger also sent medical records to LINA.FN3In January, June, and September of
2003, he observed that Mr. Werner's cardiovascular disease was stable. At the
September 2003 visit, Dr. Auger noted that Mr. Werner "has a baseline level of
angina with excess activity but at his baseline level of activity is not
symptomatic, and this has not progressed. He has been trying to be more
active."(Id. at 563.)Dr. Auger saw Mr. Werner in July of 2004 and again stated
that he "does have stable angina if he over exerts himself but this pattern has
not changed in over 2 years ."(Id. at 557.)

FN3. The Administrative Record reflects that after repeated requests by
LINA, Dr. Stahl sent medical records to LINA in early 2005. After an office
visit with Mr. Werner in December 2003, Dr. Stahl recorded his subjective
impression as "Mr. Werner is doing rather well."(Administrative R. 491.)
However, the Record also shows that Mr. Werner notified LINA in March 2003
that he had moved to Georgia and Dr. Stahl, located in Nevada, was no longer
one of his treating physicians. (Id. at 485.)

On December 13, 2004, Mr. Werner had a permanent dual chamber pacemaker inserted.
Also in December 2004, LINA asked Mr. Werner and his attending physician to fill
out a Supplementary Claim Form of Disability. Dr. Auger completed the form and
checked boxes to indicate that Mr. Werner's condition was unchanged, and that his
functional capacity was Class 3 (Marked Limitation). He indicated that Mr. Werner
was limited in walking long distances and incapable of sedentary activity. He
wrote "permanent disability" in response to a query about when Mr. Werner could
return to work, and further noted that Mr. Werner's present job could not be
modified to allow him to return. (Id. at 502, 504.)Dr. Auger's concluding remarks
were: "Recent pacer insertion for bradycardia .... Chronic condition with
significant limitations-as in the past-no change in clinical status except as
noted."(Id. at 504.)

In April and May of 2005, LINA yet again requested more information from Mr.
Werner, Dr. Auger, Dr. Sweeney, and Dr. Kenneth McGrath ("Dr.McGrath"), the
physician Mr. Werner saw after moving from Nevada to Georgia. In August 2005, LINA
wrote to Dr. Sweeney with information that Mr. Werner had worked on remodeling a
church in May 2005 and had traveled to Cancun, Las Vegas, Atlanta, and Maine.
LINA's case manager stated that this information was inconsistent with Mr.
Werner's recent Disability Questionnaire, and asked Dr. Sweeney for an updated PAA
and medical findings to support Mr. Werner's continued inability to work. Dr.
Sweeney's August 2005 PAA reported much the same level of ability as the November
2004 PAA: Mr. Werner was able to "continuously" do most activities such as
sitting, standing, walking, reaching, and lifting and carrying 10 pounds, and
"frequently" do many others, such as climbing, balancing, stooping, kneeling, and
lifting or carrying 11 to 20 pounds. In a letter to Dr. Auger, Dr. Sweeney
observed that "[a]t the present time Mr. Werner is quite inactive by his own
volition. He has had no symptoms suggestive of myocardial ischemia."FN4(Id. at
371.)

FN4. Dr. Sweeney noted in the letter that Mr. Werner had a chemical stress
test when he was hospitalized to have the pacemaker inserted, but that the
results were not known. The record does not clearly indicate whether this is
a reference to the stress test conducted by Dr. McGrath on April 21, 2005,
the results of which were consistent with probable ischemia, or to another
chemical stress test.

*5 In October 2005, LINA forwarded copies of the position description of Vice
President published in the enhanced Dictionary of Occupational Titles ("eDOT") to
Mr. Werner's doctors and asked them to comment, in light of the job description,
on Mr. Werner's ability to perform in his position and to include medical
documentation to support his inability, if any, to do so. The eDOT summary
described the physical demands of a Vice President as "Sedentary Work: Exerting up
to 10 pounds of force."(Id. at 358.)Dr. Auger provided some records from August
2005 indicating that Mr. Werner had been doing much better since the insertion of
the pacemaker, but the court was unable to locate any response related to the eDOT
description. Similarly, Dr. McGrath responded with notes from a recent office
visit, but no clinical opinion regarding Mr. Werner's ability to work. Dr. Sweeney
declined to respond to LINA's request on the ground that he had insufficient
contact with Mr. Werner.

On December 6, 2005, Dr. Dan Gerstenblitt ("Dr.Gerstenblitt"), an independent
physician with a specialty in occupational medicine, completed his review of Mr.
Werner's medical records at LINA's request. He concluded that there was

insufficient information in the records to indicate that the claimant is not
capable of performing sedentary work. The claim is being driven simply based
upon the volitional efforts of the claimant and his subjective symptoms. On the
coversheet to Franklin Memorial Hospital on 7/25/02, the employer was listed as
"retired" which would certainly imply that there was no motivation for the
claimant to try to return to any form of working. Though the claimant does have
significant [coronary artery disease], the claimant's ejection fraction is
normal and the pacemaker should have taken care of the claimant's symptomatic
bradycardia. Dr. Sweeney noted that it was the claimant's lack of volitional
efforts that was limiting himself. The claimant even refused to do an exercise
stress test.

(Id. at 294.)Dr. Gerstenblitt also noted that Mr. Werner had traveled back and
forth to Maine, Georgia, Nevada, Philadelphia, and Cancun, which undercut the
claim that he could not perform his job duties due to travel constraints. LINA
denied Mr. Werner's benefits as of December 21, 2005.

Mr. Werner appealed the denial by letter dated March 15, 2006. In the letter, Mr.
Werner's attorney pointed out the following information:

- a chemical stress test conducted by Dr. McGrath, dated April 21, 2005,
revealed probable ischemia;

- Mr. Werner's involvement in renovating a church in Cancun was limited to
placing phone calls, and involved no physical activity;

- Mr. Werner's travel to various states is done in his van, which is equipped
with a fold-down bed, and his wife does most of the driving;

- and that when Mr. Werner does travel by airplane, he must utilize a wheelchair
at the airport.FN5

 

FN5. Mr. Werner also advised LINA that he used the term "retired" on medical
forms as a convenience to avoid unnecessary and embarrassing explanations
about his condition.

(Id. at 245-49.)Enclosed with the letter was a copy of the chemical stress test
results. LINA submitted Mr. Werner's claim to the appeal process, which involved
"an objective and independent review of the original claim decision."(Id. at
228.)In addition, the appeal claim manager solicited an independent evaluation of
Mr. Werner's job. She noted that LINA did not have a job description on file for
Mr. Werner's former position as a Vice President of Property and Casualty.
Specifically, she requested confirmation of the eDOT description of the position
as sedentary and a determination of whether travel was an essential duty of Mr.
Werner's occupation.

*6 The review was performed by Alan Ey ("Mr.Ey"). His ultimate conclusion was that
Mr. Werner's "occupation as a vice president within the property and casualty
insurance business is performed at the light exertional level."He noted that
"[w]hile the essential job functions do not exceed the sedentary exertional level,
the activity (travel) necessary to perform those functions exceeds sedentary
work."(Id. at 202.)Mr. Ey discussed two elements of the eDOT description that he
found flawed. First, he observed that the eDOT categorized the occupation of vice
president as sedentary yet included the physical demand of frequent walking. The
eDOT was thus self-contradictory: "[f]requent walking would, in and of itself,
elevate the physical demands of this occupation to the light exertional
level."(Id. at 201.)Second, he criticized the failure of eDOT to thoroughly
address the issue of travel. Mr. Ey's opinion was that business travel is
separated from leisure travel due to its frequency and pace, and elevates the
physical demand of the job to the light exertion classification. He included
excerpts from the United States Department of Labor Occupational Outlook Handbook
for the category of Top Executives, which discussed the substantial travel
requirements.

Case notes on Mr. Werner's claim dated March and April of 2006 reflect LINA's
acknowledgment, based on the independent job assessment, that Mr. Werner's
position required light exertion, not sedentary work. Handwritten notes refer to
Dr. Sweeney's and Dr. Gerstenblitt's opinions that Mr. Werner could in fact
travel. No mention of Dr. McGrath's chemical stress test appears on the page,
though Dr. McGrath is listed as one of Mr. Werner's treating physicians. On April
28, 2006, LINA denied the appeal. LINA acknowledged that Mr. Werner's occupation
had been reclassified as light exertional, but stated that "clinical documentation
from Dr. Sweeney ... and the previous peer review that was done by Dr.
Gerstenblitt does not indicate that Mr. Werner cannot travel, which is a material
duty of his occupation."(Id. at 182.)LINA referred again to Dr. Sweeney's opinion
that Mr. Werner was inactive of his own volition and demonstrated no symptoms of
myocardial ischemia. Because Dr. Sweeney had indicated limitations and
restrictions for Mr. Werner on the August 26, 2005, PAA that were consistent with
light work, LINA concluded that Mr. Werner could perform his occupation. The
letter notification also stated that no new medical documentation was provided to
refute Dr. Sweeney's PAA or the findings of Dr. Gerstenblitt. There is no mention
at any point in the letter of Dr. McGrath's chemical stress test.

Mr. Werner appealed again. He included an independent vocational assessment dated
September 1, 2006, another copy of the April 21, 2005 chemical stress test, a new
disability assessment completed by Dr. Auger, and a case from the District Court
for the District of Minnesota purporting to cast doubt on the credibility and
judgment of Dr. Gerstenblitt. Dr. Auger's opinion was that Mr. Werner remained
medically disabled and his work capacity severely diminished. The vocational
assessment was performed by Earl Thompson ("Mr.Thompson"), who concluded that the

*7 medical opinions of Dr. Stahl, Dr. Auger, and Dr. Aden [sic] with regard to
Mr. Werner's functional capacity, which are consistent with the Social Security
decision would preclude Mr. Werner from being able to perform the essential job
functions of his previous jobs or any competitive job that exists in the
national or regional economy in a consistent and reliable manner while meeting
production standards.

 

(Id. at 152.)

LINA commissioned another independent medical review to be conducted by Dr. David
Stein ("Dr.Stein"). The court will quote at length from Dr. Stein's findings dated
December 26, 2006, which were based on a thorough review of Mr. Werner's records
dating back to 1997.

On review of the medical information sent, the patient has shown with chemical
stress testing that he does have inferior lateral and anterolateral ischemia,
which is inducible on radioisotope scanning. He has had no intervention since
the initial coronary bypass surgery and continues to have symptoms of fatigue
and chest discomfort. If he limits his activity to avoid walking more than a
slow pace, he experiences angina. With the fact that the chemical stress tests
have continued to demonstrate ischemia and some decrease in his ejection
fraction along with the presence of left ventricular hypertrophy, there is clear
cut documentation that this gentleman is limited by myocardial ischemia, his
angina is genuine, and that from 1/21/06 through the present, he continues to be
incapacitated by his coronary disease.

....

There has been considerable variation in allowing his disability and
discontinuing his disability. This gentleman has refused to have a regular
stress test with an isotope study or with a stress echo, but it would be helpful
to further objectively support his development of ischemia and limited exercise
tolerance, which has been felt to be more subjective at this point. The patient,
however, has had documented ischemia on his prior stress testing and has had a
prior inferior wall myocardial infarction by his stress studies and by his
electrocardiograms. Therefore, it would appear that the restrictions and
limitations are supported in the documentation provided for review from 1/21/06
through present.

(Id. at 110.)Dr. Stein was specifically asked by LINA to discuss any conflicting
medical information. He simply stated that there was "substantial evidence" that
Mr. Werner is "clinically impaired" and that he could not return to work. (Id. at
111.)

LINA followed up with Dr. Stein in March 2007 and requested that he answer two
more questions: what, if any, medical basis existed to preclude Mr. Werner from
undergoing an exercise treadmill stress test; and what study of work capacity
objectively supports the claim that Mr. Werner remains unable to work. Dr. Stein
replied that there was no medical basis for refusing the treadmill stress test.
Mr. Werner seemed "extremely phobic" about such a test, likely based on an episode
of atrial fibrillation brought on by exercising on a treadmill in 2000. As to the
second question, Dr. Stein observed that there were no current office notes or
records after 2005, and he had been unable to contact Dr. Sweeney.FN6He suggested
that various treatments might be helpful, such as increases in the pacemaker and
beta blocker and assessment of possibly sleep-disordered breathing. He also
advised that "it would be worthwhile to obtain a copy of the chemical stress test,
which may further substantiate the persistence of myocardial ischemia."(Id. at
94.)"Therefore, at the present time the assessment of [Mr. Werner's] activity is
based on the last notes from August of 2005, which have really been stable chronic
angina, limited physical activity and chronic depression, which have limited his
ability to return to work."(Id.)

FN6. Dr. Stein did speak to Dr. McGrath, who advised that he had not seen
Mr. Werner in approximately two years because his care had been transferred
to Dr. Sweeney. However, Dr. McGrath did state that he "felt that with [Mr.
Werner's] weight, diastolic dysfunction and hypertension that his functional
capacity as described by him was accurate."(Administrative R. 93.)

*8 Based on Dr. Stein's report, LINA denied Mr. Werner's second appeal on April
10, 2007. The letter read, in part:

In the totality of the review it is not possible to find the medical
documentation to support a physical assessment of lack of functionality to
perform at a light level of functionality beyond August of 2005. This is
primarily due to lack of medical records furnished during the two appeals and
previously requested by case management and evidently due to [Mr. Werner]
refusing to perform functional testing that would allow further evaluation and
possibly even treatment of his condition.

(Id. at 91.)Mr. Werner filed this lawsuit on April 25, 2007.

Mr. Werner sued both LINA and ACE. He alleges that he is disabled due to his
chronic cardiac disease and that LINA incorrectly and unreasonably denied his long
term disability benefits. In addition to his cardiac condition, Mr. Werner also
suffers from the following: ongoing depression, back pain due to degenerative disc
disease, hypertension, diabetes, hyperlipidemia, and asthma. He has been treated
for Hodgkin's disease,FN7 which is in remission after chemotherapy, and for
various types of skin cancer. These health issues are referred to throughout the
Administrative Record, but the court understands heart disease to be the primary
cause of his alleged disability.

FN7. The Administrative Record refers variously to Mr. Werner's cancer as
Hodgkin's disease and non-Hodgkin's lymphoma. (E.g., Administrative R. 875,
858.)

II. Standard of Review

Summary judgment is proper if "there is no genuine issue as to any material fact"
and "the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P.
56(c). In considering a motion for summary judgment, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in
his favor."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). However, the nonmovant must do more than "simply show that
there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986)."The mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient .... " Anderson, 477 U.S. at 252. The
nonmovant may not avoid summary judgment with evidence that is "merely colorable
or is not significantly probative." Raney