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 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION 

BARBARA CLUCK,

Plaintiff,

v.

UNUM LIFE INSURANCE COMPANY

of AMERICA,

Defendant.

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Case No. 2:18-cv-56

Judge Sarah D. Morrison

Magistrate Preston Deavers

OPINION AND ORDER

This non-ERISA case addresses termination of long-term disability (“LTD”) 

benefits. Specifically, Plaintiff Barbara Cluck alleges that Defendant Unum Life 

Insurance Company of America terminated her LTD benefits in violation of the 

applicable disability policy. Cluck further alleges that Unum did so in bad faith. She 

moves for summary judgment on the breach of contract claim (ECF No. 40) and 

Unum moves for summary judgment on the bad faith count (ECF No. 41). Being 

fully advised, the Court DENIES Cluck’s motion (ECF No. 40), GRANTS Unum’s 

motion (ECF No. 41), and GRANTS Unum’s Motion to Seal (ECF No. 102).

I. BACKGROUND

A. Initial LTD Approval

Unum issued a disability policy (“Policy”) to The Ohio State University 

(“OSU”). Because Cluck worked for OSU as a medical assistant, she had disability 

insurance coverage under the Policy via her status as an employee of OSU.

According to the Policy:

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You are disabled when Unum determines that:

- you are limited from performing the material and 

substantial duties of your regular occupation due to your 

sickness or injury; and

- you have a 20% or more loss in your indexed monthly 

earnings due to the same sickness or injury.

You will continue to receive payments beyond 24 

months if you are also:

- working in any occupation and continue to have a 20% 

or more loss in your indexed monthly earnings due to your 

sickness or injury; or

- not working and, due to the same sickness or injury, are 

unable to perform the duties of any gainful occupation for 

which you are reasonably fitted by education, training or

experience.

You must be under the regular care of a physician 

in order to be considered disabled.

The loss of a professional or occupational license or 

certification does not, in itself, constitute disability.

We may require you to be examined by a physician, 

other medical practitioner and/or vocational expert of our 

choice. Unum will pay for this examination. We can 

require an examination as often as it is reasonable to do 

so. We may also require you to be interviewed by an 

authorized Unum Representative.

(ECF No. 30-1, PageID 292.)1

In February 2008, Cluck began experiencing severe back pain and saw Diana

Taylor, M.D., her primary care physician. Cluck had an MRI. Dr. Taylor reviewed 

the results and determined that Cluck had “mild degenerative disk disease 

1 On March 8, 2021, the Court ordered Unum to authenticate the claims file

(ECF Nos. 30, 109). Counsel thereafter notified the Court that authentication was 

achieved by ECF No. 41-2. 

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throughout. No major disk herniation. Some swelling at T8-T9 which is probable 

cause of her pain.” Id. at 181. Dr. Taylor indicated that Cluck could not return to 

work and referred Cluck to Rao Lingam, M.D., a pain management specialist. Id. at 

178, 189. 

Dr. Lingam examined Cluck in March 2008 and determined that she had 

thoracic degenerative disc disease; thoracic disc bulge; myofascial pain syndrome, 

and lumbar spondylosis. Id. at 190. He prescribed epidural steroid injections, which 

Cluck had done. Id.

Unum began reviewing Cluck’s file for LTD benefits in May 2008. Id. at 209, 

211. Unum requested updated medical records from Dr. Taylor. Id. at 215. Dr. 

Taylor’s office notes from May 2008 describe Cluck as having severe back pain after 

a fall, being unable to get out of bed, and walking with difficultly. Id. at 225. Dr. 

Taylor indicated that Cluck was “unable to sit, stand, walk, push, pull, etc.” Id. 

Visit notes from June 2008 indicate that Cluck had two epidural steroid injections 

in her thoracic area, but none in her lumbar area. The two injections did provide 

relief to the thoracic area. The notes further state:

She has constant pain in her L low back, which radiates 

down the side of her leg. She has a sharp shooting in the 

first 2 toes of her L foot. She says she gets this shooting 

pain every time she steps down on her foot. She says she 

can’t even do her housework. She can’t carry a gallon of 

milk. She can’t do laundry. She can’t reach up to put 

dishes in the cabinet. She can stand for maybe an hour, 

but then she has to lie flat to take the pressure off her 

back.

O: PE: In general, she is in obvious distress. She prefers 

to stand. When she sits, she extends her L leg. DTRs are 

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2+ in the R knee and ankle; 1+ at the L knee; 0 at the L 

ankle. SLR is positive on the L.

A: 11 Thoracic and lumbar DDD with L lumbar 

radiculopathy

P: She will not be ready to return to work on June 11 even 

with restrictions. This would not be possible because she 

can’t sit or stand or do any amount of even minimal 

lifting. Continue tx with Dr. Lingham. F/U with me on 

July 2 in 1 month to reevaluate.

Id. at 271.

Unum asked Dr. Taylor about Cluck’s ability to take part in a transitional 

return to work program. Id. at 268. Dr. Taylor responded that Cluck “can’t stand for 

more than a couple hours, but can’t sit for more than 1 hour. Can’t lift at all. Can’t 

bend at all. No pushing/pulling at all. Has to lie flat frequently.” Id. Dr. Taylor 

declined to release Cluck to return to work even with restrictions. Id.

Unum approved Cluck’s LTD benefits for low back pain and radiculopathy on 

July 9, 2008. Id. at 291. The approval letter, signed by Benae Francis, a Senior 

Disability Benefits Specialist at Unum, stated:

Although we are approving [long-term disability] 

benefits at this time, you must continue to meet the 

definition of disability in your policy in order to qualify for 

ongoing benefits. Medical records indicate you have 

recently had an epidural steroid injection for pain; 

however, there are no significant diagnostic findings to 

support your continued complaints of pain. Should you be 

unable to return to work following your next office visit on 

July 1, 2008, we would expect your physician to order 

additional diagnostic testing with a referral to a 

specialist.

We will be requesting all updated records following 

your July 1, 2008 office appointment with Dr. Taylor.

Id. at 292.

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Unum continued to obtain and review Cluck’s medical records for the 

duration of 2008. In October of that year, Dr. Taylor referred Cluck to neurologist 

Halyna Stechyshyn, M.D., after an MRI revealed normal findings. Id. at 566-67. Dr. 

Stechyshyn assessed Cluck and had Cluck complete a nerve conduction study. Id. at 

494, 609. The study revealed no peripheral neuropathy or acute radiculopathy. Id.

Dr. Taylor’s December 2008 visit note provided:

The pt has been so depressed for the last 3 days that she 

has hardly gotten out of bed. She says she just gets out of 

bed to go to the bathroom. She is in tremendous pain and 

is very upset that she is not able to go to work.

Id. at 564. Dr. Taylor referred Cluck to rheumatologist Arthur Armstrong, M.D. for 

a possible fibromyalgia diagnosis. Id. 

Dr. Armstrong examined Cluck in early January 2009. Id. at 601. His notes 

indicate that the epidurals did help her pain and further provide that:

[T]he patient did give signs and symptoms which meets 

criteria for fibromyalgia. She has 16 trigger points on 

exam throughout her torso, back, neck, and limbs and she 

has some fibromyalgia medication at this time including 

Lyrica and Cymbalta but unfortunately is unable to 

tolerate higher dose of Lyrica due to skin reaction.

Id. at 602. He recommended exercise, physical therapy and a TENS unit. 

As a result of the fibromyalgia diagnosis, Margaret Zephier, a registered 

nurse employed by Unum, was tasked with reviewing Cluck’s file. At that point, 

Cluck was treating with four separate physicians—Taylor, her PCP; Armstrong, her 

rheumatologist; Lingam, her pain specialist; and Stechyshyn, her neurologist. 

Zephier concluded that Cluck’s fibromyalgia, depression, and inability to afford

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physical therapy due to required co-pays supported Cluck’s sustained impairment. 

(ECF Nos. 30-1 and 30-2, PageID 649-654.) Zephier did note that a referral to a 

therapist would be expected, as cognitive behavioral therapy was a common 

treatment for fibromyalgia. Id.

OSU terminated Cluck in March 2009. At that point, Cluck lost insurance. 

Dr. Taylor’s April 2009 restrictions included no bending, lifting, pushing, or pulling 

and no standing for more than ten minutes. Id. at 752. Dr. Taylor indicated that the 

restrictions were permanent because Cluck’s condition had not improved after more 

than a year. Id. at 752. Dr. Taylor noted that Cluck had trouble grasping and 

experienced pain just from sitting in a car. Id.

Dr. Taylor’s May 1, 2009 visit notes provided that Cluck continued to have 

severe right leg pain and that her right leg frequently “gives out” on her. Id. at 760. 

Dr. Taylor noted that Cluck had not seen Dr. Lingam due to Cluck’s lack of 

insurance. Id. Dr. Taylor again stated that Cluck “has not had any improvement in 

over [one] year . . . .” Id. 

Because Dr. Taylor identified Cluck’s restrictions as permanent, Unum had 

Charlene Saucier, another registered nurse employed by Unum, review Cluck’s file 

to determine whether the record supported Dr. Taylor’s position. Id. at 766. Saucier 

considered office notes from Dr. Taylor and Dr. Armstrong. Id. Saucier also read 

Zephier’s January 2009 report. Id. Saucier concluded: 

[T]he medical documentation available supports 

the R[estriction]s and L[imitation]s with unable to

stand/walk more than 10 minutes, cannot bend, lift, 

push/pull, trouble with grasping and pain with sitting in a 

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car. The claimant has had persistent back pain unrelieved 

by steroid injections and or pain medications. During the 

physical examination, Dr. Ta[y]lor notes the Claimant has 

difficulty getting up on the exam table, severe pain with 

lying down and sitting up.

Based on the Claimant’s history with DDD, 

fibromyalgia, depression, and noted physical activity 

limitations, it is likely these Rs and Ls are ongoing.

Id.

On May 21, 2009, Unum sent Cluck a letter stating that Unum was 

continuing to review Cluck’s eligibility for LTD benefits but informing her that:

At the present time, you meet the policy definition 

of disability. Based on the facts of your claim as well as 

our clinical review, we do not anticipate a change in your 

medical status and therefore, have made the decision to 

extend our approval of your benefits, for symptoms 

related to the diagnoses of Degenerative Disc Disease and 

Fibromyalgia, through December 29, 2023. * * * 

For medical benefits to continue, we must receive 

additional medical information from time to time and as 

necessary to determine your eligibility for benefits. . . .

(ECF No. 35-1, PageID 1813). The letter informed Cluck that: (1) after May 18, 

2010, she would be disabled under the Policy only if she was unable to perform any 

occupation; and (2) on December 3, 2010 her mental health benefits would 

permanently expire. Id. at 1814-15. 

B. Benefit Termination

Unum continued Cluck’s benefits without incident through the end of 2014. 

In April 2015, Cluck completed Unum’s Disability Status Update request wherein 

she indicated that:

Depending on how I’m feeling, I’ll wash dishes or do 

laundry, take a shower. Maybe cook something. Read the 

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paper for possibly 20 min[ute]s here or there. It’s hard to 

sit for long periods of time or lift things. So I don’t really 

get on the computer very often. On a good day I might go 

to see my mom or possibly go to church. Still very limited 

in what I can do, or lift, or sit.

(ECF No. 30-3, PageID 1223.) Upon receipt of that update, Unum requested that 

Dr. Taylor give Unum Cluck’s records from January 2014 forward and indicate 

what Cluck’s current restrictions were. Id. at 1233. In response, Dr. Taylor provided 

Cluck’s medical records from 2010 forward but did not address Cluck’s current 

restrictions and did not enclose an attending physician’s statement. Id. at 1237-99.

Dr. Taylor’s March 2015 encounter notes indicate that Cluck had obtained 

insurance through Medicaid and that Cluck needed to have her gallbladder 

removed. Id. at 1245. No mention is made of back pain or fibromyalgia. Id. Dr. 

Taylor described Cluck as in “no acute distress.” Id.

Unum spoke with Cluck in May 2015. Cluck indicated that her condition had 

not changed and that she was still having “shooting” pains in in her leg and back. 

Id. at 1306. Cluck said she was only treating with Dr. Taylor. Id. Cluck stated a 

nerve block in her leg had caused her falls to stop. Id.

Shortly after the call, Unum referred Cluck’s file to Heather Mercier, a nurse 

at Unum, for a clinical functional capacity review because Cluck had obtained 

insurance, was only treating with Dr. Taylor, and the basis for Dr. Taylor’s

restrictions was “unclear.” Id. at 1308. Unum notified Cluck her LTD claim was 

under review. Id. at 1311. 

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Unum tasked Mercier with determining whether Cluck had “the functional 

capacity to perform occasional exertion up to [ten] pounds, performed from a seated 

position with occasional standing and walking with the ability to change positions 

as needed on a full time basis[.]” Id. at 1327. Mercier reviewed Cluck’s file and 

issued her report on June 11, 2015. Id. at 1330. Therein, she highlighted the fact 

that Cluck had obtained health insurance again. Mercier concluded that Cluck’s 

expressed back pain was “in excess of her imaging and diagnostic findings” and 

Cluck’s treatment of Advil and Percocet for her pain was “inconsistent with severe 

pain that limited F[unctional] C[apacity].” Id. Mercier next addressed Cluck’s 

fibromyalgia. Mercier noted that Cluck had failed to go to physical therapy as 

ordered even though Cluck had obtained insurance. Id. Mercier commented that 

Cluck’s “reports of weakness, gait disturbance and need for a cane” were 

inconsistent with fibromyalgia symptoms. Turning to Cluck’s anxiety and 

depression, Mercier stated that those conditions were periodic and that Cluck had 

not recently been prescribed medication for either. Id. Mercier further noted that 

Cluck had not seen a behavioral health specialist even though Cluck had insurance 

at that point. Id. Mercier noted that Dr. Taylor had not provided any restrictions for 

any of Cluck’s conditions despite Unum’s request. Mercier stated that Cluck was not 

treating with any specialists despite the fact that Cluck had obtained insurance. Id. 

Lastly, Mercer wrote that Dr. Taylor told Cluck that Cluck “should consider a part 

time sit down job.” (ECF No. 30-3, PageID 1329; ECF No. 30-2, PageID 1060.) 

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Mercier concluded that “functional limitations for seated level activities would not 

be supported” for any of Cluck’s conditions. (ECF No. 30-3, PageID 1330.)

Unum also had Norma Parras Potenzo perform a vocational assessment for 

Cluck. Id. at 1334. Potenzo was charged with determining whether Cluck could 

perform any occupation. On June 17, 2015, Potenzo concluded that Cluck could 

perform the duties of a General Clerk, Receptionist, and/or Information Clerk. Id. at 

1336-8.

Unum terminated Cluck’s LTD disability benefits on June 22, 2015. The 

letter informing Cluck of the decision provided:

Your Long Term Disability claim was approved 

based on impairment related to low back pain and 

fibromyalgia symptoms because your medical records 

supported your inability to perform your occupation as a 

Medical Assistant.

As of May 18, 2010, the policy defines disability as 

the inability to perform any gainful occupation for which 

you are reasonably qualified by way of training, 

education, and experience. A gainful occupation would be 

any job that would be expected to provide you with an 

income of at least $8.75 per hour.

As part of our ongoing claim review process, you 

completed a Disability Status Update form for us in April 

2015. You identified your current treatment provider as 

being only Dr. Taylor.

Dr. Taylor did not provide a recent comment on 

your current restrictions and limitations however [she] 

did provide copies of your medical records from March 

2010 through March 26, 2015.

Our clinical staff has completed a review of the 

available medical information, including the diagnostic 

testing and office visit notes. Our medical staff agrees 

that your physical conditions would preclude you from 

performing the duties of your pre-disability occupation. 

The records, however would not support that you would 

be precluded from occasional exertion up to 10 pounds, 

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performed from a seated position with occasional standing 

and walking with the ability to change positions as 

needed on a full time basis.

Dr. Taylor’s records reflect that although you have 

reported continued back pain, numbness in your legs and 

weakness, your complaints are in excess of your 

diagnostic findings. Imaging completed was age 

appropriate and did not demonstrate neuro-compromise. 

EMG studies were normal. Your office visit notes 

document physical exam findings within normal limits, 

including the evaluation of your left leg.

Additionally, severe pain rising to a level to impair 

one’s functional ability would be expected to result in 

treatment by an orthopedic or neurology specialist or 

referral to pain management. It is noted that Dr. Taylor 

has not opined any ongoing restrictions or limitations 

based on any medical condition.

Although you have been diagnosed with 

fibromyalgia syndrome, this condition does not result in

tissue, organ, or joint damage. You have reported gait 

instability with the need for a cane. Although inconsistent 

with diagnostic imaging, it is noted that the use of a cane 

to walk would not preclude you from performing seatedlevel activities. This is consistent with Dr. Taylor’s

historical recommendation that you return to work in a 

seated capacity.

Id. at 1344. The letter further advised Cluck of her right to appeal and of the 

directions for doing so. Id. at 1347.

C. Cluck’s Appeal 

Cluck spoke with Unum on June 26, 2015. Id. at 1368. Cluck stated that Dr. 

Taylor did not receive Unum’s letter asking for updated restrictions and limitations. 

Id. Unum told Cluck it would fax the request to Dr. Taylor. Id. Unum told Cluck to 

have Dr. Taylor include all notes from Cluck’s recent visits. Id. Unum faxed the 

form to Dr. Taylor the same day. Id. at 1370.

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Dr. Taylor returned the completed form to Unum three days later. The form 

indicated that Cluck’s primary diagnosis were lumbar radiculopathy, fibromyalgia, 

depression, anxiety, and hyperparathyroidism. Id. at 1373. Dr. Taylor stated that 

Cluck was presently experiencing severe low back pain radiating to both legs, 

weakness, depression, and diffuse pain. Id. Dr. Taylor stated that Cluck “can’t climb 

stairs or lift overhead, can’t sit for more than 20 minutes. Some days can barely get 

out of bed. Trouble walking, frequent falls.” Id. at 1374. The lone referral occurred 

in April 2015 for a parathyroidectomy. Id. Dr. Taylor indicated that Cluck was 

currently taking Adderall, Cymbalta, Fioricet, ibuprofen, Percocet, and Xanax. Id. 

at 1376.

1. Dr. Hauser’s Opinion

After receiving Dr. Taylor’s completed form, and despite the fact that Cluck 

had not filed a formal appeal, Unum asked Daniel Hauser, M.D., an in-house board 

certified family practitioner, to review Cluck’s records to determine whether Cluck 

had “the functional capacity to perform occasional exertion up to 10 pounds, 

performed from a seated position with occasional standing and walking with the 

ability to change positions as needed on a full time basis?” Id. at 1412. 

Dr. Hauser called Dr. Taylor’s office to speak with her about Cluck’s file. Id. 

at 1384. After being unable to reach her via telephone, Dr. Hauser proceeded to fax 

Dr. Taylor a letter stating that Cluck appeared to have the capacity to occasionally 

lift, carry, push and pull up to ten pounds; sit for most of the workday, and 

occasionally stand and walk for brief periods of time. Id. The letter asked if Dr. 

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Taylor agreed with those capabilities. Id. at 1384. If she did not, Dr. Taylor was 

asked to list “what symptoms or deficits preclude Ms. Cluck from performing” those 

restrictions and to detail what treatment visit notes and/or diagnostic test findings 

corroborated Cluck’s symptoms. Id. at 1385. 

Dr. Taylor’s July 13, 2015 response stated that Cluck did not have the ability 

for the listed demands. Dr. Taylor indicated that Cluck lacked capacity for sitting 

most of the day and that some days Cluck remained in bed all day. Id. at 1391. Dr. 

Taylor wrote that Cluck’s “severe pain in back and down hip and numbness in [her] 

legs” prevented Cluck from performing Dr. Hauser’s listed demands. Id. at 1397. Dr. 

Taylor stated that those symptoms were corroborated by “diffuse tenderness, 

positive straight leg raise, difficulty even lying down and sitting up for exams.” Id.

Dr. Hauser reviewed Dr. Taylor’s response and Cluck’s file dating back to 

2008. That included, but was not limited to, consideration of notes, test results, and 

diagnoses from Dr. Taylor, Dr. Armstrong, Dr. Lingam, and Dr. Stechyshyn. Dr. 

Hauser concluded that Dr. Taylor’s restrictions and limitations were “uncertain.”

Id. at 1408. He characterized Cluck’s symptoms as “highly variable” and “not 

consistent with the diagnosis of fibromyalgia.” Id. at 1409. He described Cluck’s test 

results as not revealing “severe pathology that would be expected to result in the 

severe symptoms and extensive limitations reported by” Cluck. Id. On July 31, 

2015, he concluded that the “extensive limitations reported by [Cluck] [we]re not 

consistent with or corroborated by physical examination and/or diagnostic test 

findings.” Id. Because Cluck was scheduled to have a parathyroidectomy, Dr. 

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Hauser refrained from issuing his final opinion until he obtained more information 

from Michelle Wood, D.O., the surgeon who would be performing that surgery. Id. at

1412, 1416. Dr. Hauser also requested updated information from March 2015 

forward from Dr. Taylor. Id. at 1454.

On August 20, 2015, Cluck filed her formal appeal of Unum’s decision 

terminating her LTD benefits. Id. at 1432.

Dr. Taylor sent Unum updated records on August 26, 2015. Visit notes from 

April of that year provide that Cluck “is in no acute distress.” Id. at 1471. Dr. 

Taylor’s May 18, 2015 visit notes state that Cluck had less fibromyalgia pain after 

re-starting Cymbalta. Id. at 1469. Cluck saw Dr. Taylor one week later after falling 

from a landing. Id. at 1467. As a result of the fall, Cluck’s back was hurting and the 

pain was radiating down the back of her left leg. Id. Dr. Taylor stated that Cluck 

was “in obvious distress and “tender” everywhere Dr. Taylor examined. Id. Dr. 

Taylor diagnosed Cluck with lumbar strain and exacerbation of fibromyalgia, 

prescribed Percocet, and advised Cluck it could take weeks before she felt better. Id. 

June 2015 notes describe Cluck as “distraught and tearful” over loosing her LTD 

benefits. Id. at 1464. Back or leg pain is not mentioned. July 2015 notes establish 

that Cluck had a medical procedure performed that required her to keep her left 

shoulder against a table for an extended period of time. Id. at 1462. Since the 

procedure, Cluck had been experiencing neck, chest, upper arm, shoulder, and 

upper back pain on her left side. Id. Dr. Taylor found Cluck to be in “obvious 

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distress” and diagnosed Cluck with exacerbation of fibromyalgia. Id. Dr. Taylor 

maintained Cluck’s medication regimen. Id.

Dr. Wood performed Cluck’s parathyroidectomy in August 2015. Id. at 1487.

Dr. Wood’s preoperative examination notes describe Cluck’s “fibromyalgia well 

controlled and optimized for elective surgery.” Id. at 1524. Post-surgery, Dr. Wood 

referred Cluck to Darryl Willett, M.D., an otolaryngologist. Id. at 1486. 

Unum obtained Cluck’s records from Dr. Willett. Id. at 1541. Dr. Willett 

performed parathyroidectomy revision surgery on Cluck in November 30, 2015 and 

indicated that Cluck could not work for one week afterwards. Id. at 1553. Dr. 

Willett stated the parathyroidectomy did not pertain to Cluck’s back and leg pain. 

Id. at 1547, 1561. 

Dr. Hauser reviewed the updated medical records from Drs. Taylor, Wood, 

and Willett as well as all other information in Cluck’s file before completing his 

October 9, 2015 report. Id. at 1592-98. Dr. Hauser concluded that Cluck’s 

fibromyalgia symptoms “are to a large extent focal (if migratory) and thus not 

consistent with the more generalized pain associated with fibromyalgia.” Id. at 

1597. As to Cluck’s back pain, Dr. Hauser opined that Cluck’s “physical 

examinations d[id] not reveal dermatomal (sensory) or myotomal (motor deficits 

consistent with radiculopathy.” Id. He determined that Cluck’s “straight leg raise 

test findings are highly variable and thus of doubtful clinical significance.” Id. He 

questioned why Cluck was not prescribed Oxycodone and concluded “[t]his would 

reflect submaximal utilization of the most potent analgesic in the claimant’s 

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regimen.” Id. at 1597. His final report listed the question presented and his 

response to same:

“Would the Insured have the functional capacity to 

perform occasional exertion up to 10 pounds, performed from a 

seated position with occasional standing and walking

with the ability to change positions as needed on a full time 

basis?” The information contained in the file does not support Rs 

and/or Ls that would preclude the claimant from performing the 

demands specified above.

o Physical examinations do not reveal deficits that would 

preclude the claimant from performing the demands specified 

above.

o Diagnostic studies do not reveal abnormalities that would be 

likely to cause or otherwise be associated with symptoms of the 

severity reported by the claimant.

o Symptoms and limitations reported by the claimant are not 

consistent with or corroborated by physical examination and 

diagnostic test findings.

o The various and variable symptoms reported by the claimant 

cannot be confidently attributed to spondylosis, radiculopathy, 

or fibromyalgia.

Id. at 1598. Because Dr. Hauser disagreed with Dr. Taylor, he referred Cluck’s file 

to Dr. Sentef for another review. Id. 

2. Dr. Sentef’s Opinion

Joseph Sentef, M.D., an Unum employee who is board certified in family, 

occupational and public health medicine, likewise considered the entirety of Cluck’s 

file to determine whether he agreed with Dr. Hauser’s conclusion. Id. at 1604. Dr. 

Sentef’s October 19, 2015 report found as follows relative to Cluck’s back pain: 

MRI of the lumbar spine on 10/15/08 revealed mild facet 

hypertrophic spurring at L2-3, minimal disc protrusion 

and prominent facet hypertrophic spurring up to L3-4 

with facet hypertrophic spurring at L4-5 and L5-Sl. There 

is no significant spinal cord or nerve root compression. 

EMG/nerve conduction study of the lower extremities 

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dated 11/21/08 was unremarkable with no evidence of 

radiculopathy, plexopathy or neuropathy. Physical exams 

have not revealed any neurological deficits. Reflexes have 

been bilaterally equal. Strength and sensation have been 

intact. A straight-leg raising test was positive on the left 

at 45° on 3/26/14. Straight leg raising test with Dr. Taylor 

on 3/9/15 was negative. Overall, there is no evidence of 

cord or nerve root compression. EMG/NCS reveals no 

evidence of radiculopathy, plexopathy or neuropathy. No 

neurological deficits have been documented. The claimant 

would be able to perform a sedentary occupation 

secondary to her back pain.

Id. at 1605. Dr. Sentef concluded similarly with respect to Cluck’s fibromyalgia by 

stating that condition did not preclude sedentary work. Dr. Sentef concurred with 

Dr. Hauser’s opinion because:

The claimant has complained of low back pain but 

physical exams have essentially been normal with no 

evidence of neurological deficits. Reflexes have been 

bilaterally equal. Strength and sensation have been 

intact. Imaging including MRI of the lumbar spine does 

not reveal any evidence of cord or nerve root compression. 

EMG/nerve conduction study was unremarkable with no 

evidence of radiculopathy, plexopathy or neuropathy.

The claimant also has a history of fibromyalgia 

with documented positive trigger points. Cornerstone 

treatment for fibromyalgia includes water aerobics along 

with lifestyle changes including diet, exercise and sleep 

hygiene. Increased activity is the norm for those 

individuals with fibromyalgia rather than decreased 

activity. Fibromyalgia does not preclude sedentary work.

Id. at 1605. Dr. Sentef thus concluded that “the information in the file does not 

support restrictions and limitations precluding the claimant from occasionally 

exerting up to 10 pounds of force, occasionally standing and walking, and sitting for 

most of the workday with the ability to change positions as needed on a full-time 

basis.” Id. at 1604-6.

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3. Unum Upholds its Decision

On October 23, 2015, Unum notified Cluck via letter that her appeal was 

denied and LTD benefits remained terminated. Id. at 1609. The letter stated that 

Cluck’s fibromyalgia, back pain, or parathyroidectomy did not preclude her from 

performing sedentary work. Id. at 1610-11. The letter further stated that two 

physicians (Dr. Hauser and Dr. Sentef) had reviewed Cluck’s file and determined 

that Cluck was not precluded from “occasional exertion up to ten pounds, performed 

from a seated position with occasional standing and walking with the ability to 

change positions as needed on a full time basis.” Id. at 1611. The letter informed 

Cluck that Unum had transferred her file to Unum’s “[a]ppeals [d]epartment for a 

separate appeals review” of her claim. Id. 

D. Unum’s Second Appeals Review

Cluck did not submit any supporting documentation in response to Unum’s 

October 23, 2015 letter. Id. at 1670-72. After re-reviewing Cluck’s file, Unum upheld 

its decision to terminate Cluck’s LTD benefits a second time on January 21, 2016

via a letter to Cluck from Kathleen Reid, a Lead Appeals Specialist with Unum. Id. 

at 1666-76. The January 2016 letter summarized Cluck’s medical records from 

2008, the appeals history, Dr. Hauser’s opinion that Cluck could perform sedentary 

work, and Dr. Sentef’s concurrence with that opinion. Id. at 1678-84.

E. Litigation

This diversity case followed. The Complaint asserts claims for breach of 

contract for Unum’s termination of Cluck’s LTD benefits and for bad faith relative 

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to Unum’s termination decision. (ECF No. 1.) Cluck seeks damages in excess of 

$300,000. Id. Unum denies both claims. (ECF No. 3.)

II. STANDARD OF REVIEW 

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the 

evidentiary materials in the record show that there is “no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The 

moving party bears the burden of proving the absence of genuine issues of material 

fact and its entitlement to judgment as a matter of law, which may be accomplished 

by demonstrating that the nonmoving party lacks evidence to support an essential 

element of its case on which it would bear the burden of proof at trial. See Celotex 

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 

481, 485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will 

not defeat an otherwise properly supported motion for summary judgment; the 

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also 

Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might affect 

the outcome of the suit under the governing law,’ will preclude summary judgment.”

Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting 

Anderson, 477 U.S. at 248). Accordingly, the nonmoving party must present 

“significant probative evidence” to demonstrate that “there is [more than] some 

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metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 

F.3d 335, 340 (6th Cir. 1993).

A district court considering a motion for summary judgment may not weigh 

evidence or make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. 

Metiva, 31 F.3d 375, 379 (6th Cir. 1994). Rather, in reviewing a motion for 

summary judgment, a court must determine whether “the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The 

evidence, all facts, and any inferences that may permissibly be drawn from the facts 

must be viewed in the light most favorable to the nonmoving party. Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak 

Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere 

existence of a scintilla of evidence in support of the plaintiff’s position will be 

insufficient; there must be evidence on which the jury could reasonably find for the 

plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 

543, 549 (6th Cir. 2009).

III. ANALYSIS

Cluck moves for summary judgment on her breach of contract claim (Count I) 

as to liability only. (ECF No. 40.) Unum moves for summary judgment on Cluck’s 

bad faith claim (Count II). (ECF No. 41.)

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A. Governing Law 

Cluck’s Complaint makes no mention of ERISA. Nor could it. Section 29 

U.S.C. §1003(b)(1) establishes an exemption for “governmental plans”; that 

subsection says that the provisions of ERISA do not apply to “any employee benefit 

plan if - (1) such a plan is a governmental plan (as defined in section 1002(32) of 

this title).” A “governmental plan” is defined in 29 U.S.C. §1002(32) as “a plan 

established or maintained for its employees by the Government of the United 

States, by the government of any State or political subdivision thereof, or by any 

agency or instrumentality of any of the foregoing.” The Ohio State University is an 

agency or instrumentality of the State of Ohio. Dunham v. Unum Grp., No. 2:13-cv0794, 2015 U.S. Dist. LEXIS 151080, at *8-9 (S.D. Ohio Nov. 6, 2015)(Kemp, M.J.). 

Therefore, the Policy which covered Cluck was a governmental plan. Id. (citing 

Eschleman v. UnitedHealth Group, Inc., No. 2:12-cv-519, 2013 U.S. Dist. LEXIS 

128957, 2013 WL 4832066 (S.D. Ohio Sept. 10, 2013)(Marbley, J.)(employee benefit 

plan covering employees of the State of Ohio is an exempt governmental plan)). 

Hence, Ohio law, not ERISA, governs this dispute. Dunham, 2015 U.S. Dist. LEXIS 

151080, at *8-9.

Cluck makes a weak argument to prevent this result. Specifically, she argues 

that ERISA law should apply because a section of the Policy indicates that ERISA 

applies to appeals procedures. (ECF No. 52, PageID 2302 n.2.) But the referenced 

section does not say that. Rather, that section provides “[i]f this policy provides 

benefits under a Plan which is subject to . . . (ERISA), the following [appeal] 

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procedures apply.” (ECF No. 36-1, PageID 1901)(emphasis added). As noted above, 

the Policy is not subject to ERISA. Thus, Cluck’s argument is without merit and 

application of Ohio law is proper. 

B. Breach of Contract

In Count I, Cluck alleges that Unum breached her disability insurance 

contract because “all of the medical evidence points in one direction—that Cluck 

was and remains disabled. . . .” (ECF No. 40, PageID 2142.) Unum responds that 

genuine disputes about material facts exist precluding judgment on this claim. 

(ECF No. 53, PageID 2334.) Cluck also argues Unum breached the contract by 

failing to have her undergo a physical examination. (ECF No. 40, PageID 2143.) 

Unum counters it was not required to do so under the Policy. Unum’s arguments 

prevail on both grounds.

1. Overview

For this count, the ultimate question is not whether Unum “made a good or a 

bad decision based on what it had available for review;” rather, the query is 

whether a triable issue of fact exists as to if Cluck “met the contractual 

requirements for disability under the plan.” Dunham, 2015 U.S. Dist. LEXIS 

151080, at *9-10.

“An insurance policy is a contract, the interpretation and construction of 

which is a matter of law.” Keyser v. Unum Life Ins. Co. of Am., No. C2-03-138, 2005 

U.S. Dist. LEXIS 48961, at *16-17 (S.D. Ohio Sep. 12, 2005)(Sargus, J.)(citation 

omitted.) “[I]nsurance contracts must be construed in accordance with the same 

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rules as other written contracts.” Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 

Ohio St. 3d 657, 665 (Ohio 1992)(citations omitted).

To recover for breach of contract, Cluck must prove “the existence of a 

contract, performance by the plaintiff, breach by the defendant, and damage or loss 

to the plaintiff.” Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 10, 2002-Ohio-443, 

771 N.E.2d 874 (10th Dist. 2002)(quotation and citation omitted). The parties agree 

that a contract existed. They disagree as to the remaining elements. Finding that 

there are genuine issues of material fact about defendant’s breach, the Court 

refrains from addressing the remaining aspects of contention for this claim.

The breach element requires Cluck to prove that Unum “did not perform one 

or more of the terms of a contract.” Little Eagle Props. v. Ryan, 10th Dist. Franklin

No. 03AP-923, 2004-Ohio-3830, ¶ 15. In particular, Cluck must establish that 

Unum breached the contract by terminating her disability benefits if she was 

disabled, as that term is defined in the Policy, at the time benefits were terminated. 

See Keyser, 2005 U.S. Dist. LEXIS 48961, at *18. That is, Unum breached the 

contract if Cluck was not working and could not “perform the duties of any gainful 

occupation for which [she was] reasonably fitted by education, training or 

experience” when termination occurred. (ECF No. 30-1, PageID 292.)

2. Disability

Cluck attempts to satisfy her burden of proof by pointing to three separate 

reports dated four years after Unum terminated her benefits and obtained for the 

purposes of this litigation. Unum initially counters that those expert reports are 

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irrelevant because of the passage of time between termination and examination. On 

that point:

The question which the jury must determine, of course, is 

what symptoms and limitations [Cluck] suffered during 

th[e] [requisite] period. A later examination might or 

might not shed light on that question, but just because 

someone sees a doctor days or months after a certain date 

does not mean the doctor cannot have a valid opinion as 

to the condition prior to that date, or at least an opinion to 

the effect that if the patient says the condition has 

remained the same for a long period of time - something a 

jury would be entitled to hear and to evaluate - the 

condition limited the patient’s ability to work just as 

much when it first developed as it did when [s]he finally 

saw the doctor. This is really an argument about the 

weight of the evidence, which is normally an issue for the 

jury . . . .

Dunham, 2015 U.S. Dist. LEXIS 151080, at *16.

Cluck’s first expert proffer is an April 2019 functional capacity evaluation 

performed by occupational therapist Scott Secrest. Secrest was retained by Cluck’s 

counsel to assess Cluck’s “safe physical capacity and her feasibility for competitive 

employment.” (ECF No. 38-3, PageID 2011.) Secrest noted that Cluck “provided a 

sincere effort” during the examination while concluding that her “performance and 

presentation [we]re typical of and [we]re consistent with” her diagnoses of “T6 

Wedge Compression Fracture, Degenerative Disc Disease, Fibromyalgia, Attention 

Deficit Hyperactivity Disorder, Migraine Headaches, Depression and Neuropathy.”

(ECF No. 38-3, PageID 2011-12.) He determined that she demonstrated a: (1) “poor 

ability to sustain most functions,” and (2) “material handling ability at a subsedentary level as she [wa]s not able to meet demands for sedentary shoulder-level 

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lifting.” Id. at 2012. He stated “most sedentary vocations require constant sitting 

ability. Conversely, Ms. Cluck [wa]s unable to sustain any constant postures, and 

w[ould] require frequent opportunities, at will, to make positional adjustments.” Id. 

He noted “[s]uch accommodation in most competitive vocational environments is 

unreasonable. Thus, in my professional opinion, her competitive vocational ability is 

marginal, at best” and he could not “confidently recommend her for competitive 

employment, even at a sedentary level.” Id. 

Unum presents the report of Lisa Fitzpatrick, DrOT, to rebut Secrest’s 

evaluation. (ECF No. 45-1, PageID 2246.) Therein, she attacked the evaluation’s 

validity by: (1) noting that Secrest used an outdated variance model; (2) finding 

Secrest’s conclusions as to Cluck’s functional abilities to be conflicting; and (3) 

describing the factual basis for Secrest’s determinations as lacking. Id. at 2248. She 

wrote: 

[Secrest] states [Cluck’s] material handling ability is at a 

sub-sedentary level, however it appears that she was able 

to safely lift and carry 10 pounds. The sedentary 

classification states sedentary work involves lifting no 

more than 10 pounds and occasionally lifting and carrying 

articles or files for work - Code of fed [sic] regulations [sic] 

404-1567 – SSA. During the evaluation the client also 

exhibited the ability to lift up to 15 pounds. This can be 

found on page 8 of the report under the percent of 

industrial standard rating chart where the client was 

measured carrying 15 pounds. In addition, the client also 

states that her max lifting carrying is approx. 10# on 

occasional basis which also falls into the sedentary 

classification. Objective measures of the client’s range of 

motion appear within functional limits except for thoracic

lumbar spine. She is also measured with 4 out of 5 for 

muscle testing which is considered good, and 5 out of 5 in 

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foot and ankle muscle testing which is consistent with 

normal strength.

(ECF No. 45-1, PageID 2248.) Ultimately, Dr. Fitzpatrick determined that Cluck 

could perform sedentary work involving lifting no more than 10 pounds and 

occasionally lifting and carrying articles or files. Id. at 2248-9. Material disputes

therefore exist as to whether Cluck was and is disabled under the Policy and as to 

the proper methods to be used when measuring capacity. 

The second report upon which Cluck relies is from Alexander Minard, M.D., a 

non-treating physician who examined her in May 2019 at the request of her counsel 

for this case. (ECF No. 38-2.) Dr. Minard reviewed Cluck’s records from Dr. Taylor

and Secrest’s April 2019 functional capacity evaluation. He did not review Unum’s 

claim file. Dr. Minard concluded:

I do believe that Barbara Cluck is totally and 

permanently disabled. She is not able to walk without an 

assistive device and is a significant fall risk in any work 

environment. She is not able to sit or walk for periods of 

time consistent with any work environment. She is not 

able to do any repetitive activity with her upper limbs. All 

of this results in a situation where she is not employable 

even in a sedentary capacity.

(ECF No. 38-2, PageID 2007.)

In response, Unum retained Dr. Cremer to provide a “Consulting Opinion 

Related to Ability of Participate in Gainful Occupation” for Cluck. (ECF No. 43-1, 

PageID 2215.) Physiatrist Stephen Cremer, M.D., in contrast to Dr. Minard, 

reviewed the entirety of Cluck’s medical records. Id. at 2215-21. Dr. Cremer 

concluded that the “irregularity of the reports and severity of [Cluck’s stated] pain 

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did not match the physiologic findings by imaging, electrodiagnostics, or laboratory 

studies.” Id. at 2222. Furthermore, Dr. Cremer opined that Dr. Minard failed to 

“relate a level of functional limitation to physical conditions demonstrated 

objectively in the spine or peripheral nervous system.” Id. at 2223. And, Dr. Minard 

noted that Secrest’s report “did not completely rule out sedentary work.” Id. at 

2222. Consequently, the experts also have competing opinions as to whether the 

results of Cluck’s tests and examinations support her claimed pain as well as her 

ability to complete sedentary work.

The third and final report Cluck relies upon to establish Unum’s breach is 

authored by vocational rehabilitation specialist Joseph Atkinson. Atkinson 

performed a “vocation assessment” of Cluck on April 20, 2019 at her counsel’s 

request. (ECF No. 38-1, ¶ 4.) Atkinson focused on Cluck’s “ability to return to work 

in a gainful occupation based upon her physical work capacity, vocational and 

educational history and the labor market.” (ECF No. 38-1, PageID 1999.) Before 

conducting his assessment, he reviewed Cluck’s medical records from Dr. Taylor, 

Dr. Hauser’s file review, Dr. Sentef’s file review, and other pertinent documents. 

Atkinson described Cluck’s impairments as “permanent.” Id. at 2000. Ultimately, he 

disagreed with Potenzo’s June 2015 analysis which found Cluck able to perform the 

duties of General Clerk, Receptionist, and Information Clerk. He reasoned that 

those jobs would not allow Cluck to change positions “as needed,” which was the 

work capacity Unum used for Cluck. Id. at 2001. Accordingly, he concluded that 

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Cluck was “disabled for any occupation according to the plan documents.” Id. at 

2002.

Unum returned to Potenzo to rebut Atkinson’s report. (ECF No. 44-1, Page 

ID 2233, 2235.) Potenzo’s resultant November 2019 vocational assessment stated

that Atkinson’s conclusion relied upon an outdated and incomplete version of the 

Dictionary of Occupational Titles from 1989 as to the occupation of General Clerk. 

Id. at 2235. Using the correct version from 2015, she reasoned, more accurately 

depicted the position’s duties in light of technological advances. Id. at 2235. She also 

disputed Atkinson’s conclusions that the occupations she found suitable for Cluck’s 

restrictions prevented Cluck from changing positions “as needed.” Id. at 2236. She 

wrote that each occupation allowed Cluck to take “micro-breaks” that would not 

affect work flow. Id. at 2237.

In sum, Cluck argues that the opinions of Dr. Taylor, Secrest, Dr. Minard, 

and Atkinson establish a lack of genuine dispute of material fact as to whether 

Cluck is disabled under the Policy. (ECF No. 40, PageID 2143.) Unum responds that 

its contrasting expert reports from Dr. Fitzpatrick, Dr. Kramer, and Potenzo 

generate genuine disputes of material fact about that issue. The dueling aspect of 

the reports is apparent. Consequently, because the evidence is in genuine and 

material dispute regarding whether Cluck was and is unable to perform “each of the 

material duties of any gainful occupation for which [she was] reasonably fitted by 

training, education or experience,” Plaintiff’s partial Motion for Summary

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Judgment on the breach of contract claim based upon her expert reports is 

DENIED. (ECF No. 40.)

3. Examination

Cluck asserts that Unum breached the contract by failing to have her

examined by a doctor of Unum’s choice. (ECF No. 40, PageID 2143.) But the Policy 

did not require Unum to order an examination of Cluck. The Policy states that 

Unum “may require [Cluck] to be examined by a physician, other medical 

practitioner and/or vocational expert of [Unum’s] choice.” (ECF No. 30-3, PageID 

1639)(emphasis added.). The Policy’s permissive language renders this argument 

for judgment unavailing, and Cluck’s partial Motion for Summary Judgment on

Count I is DENIED. (ECF No. 40.)

C. Bad Faith

Count II alleges that Unum denied Cluck’s LTD claim in bad faith. Unum 

argues it acted reasonably as a matter of law when terminating Cluck’s LTD 

benefits and that Cluck fails to produce evidence of bad faith. Consequently, Unum

seeks summary judgment on this count. (ECF No. 41.) The Court determines that 

summary judgment in Unum’s favor is proper.

1. Analytical Framework

“[A]n insurer has the duty to act in good faith in the handling and payment 

of the claims of its insured. A breach of this duty will give rise to a cause of action 

against the insurer.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St. 3d 272, 276 (1983). In 

this regard:

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[A]n insurer fails to exercise good faith in the 

processing of a claim of its insured where its refusal to 

pay the claim is not predicated upon circumstances that 

furnish reasonable justification therefor. An insurer’s lack 

of good faith in the processing of a claim is frequently 

referred to as bad faith. Bad faith conduct gives rise to a 

cause of action in tort against the insurer. Inasmuch as 

the breach of the duty to act in good faith is tortious in 

nature, punitive damages may be recovered against an 

insurer who breaches his duty of good faith in refusing to 

pay a claim of its insured upon adequate proof.

An insurer lacks reasonable justification for 

denying a claim when its refusal to pay is predicated on 

an arbitrary or capricious belief that the insured is not 

entitled to coverage. A court may properly grant summary 

judgment to an insurer on a claim of bad faith, however, 

where the record is devoid of any evidence tending to 

show a lack of good faith. 

Keyser, 2005 U.S. Dist. LEXIS 48961, at *24 (internal citations and quotations 

omitted). Thus, the key inquiry is whether “‘the decision to deny benefits was 

arbitrary or capricious, and there existed a reasonable justification for the denial,’

not whether the insurance company’s decision to deny benefits was correct.” Id. 

(quoting Thomas v. Allstate Ins. Co., 974 F.2d 706, 711 (6th Cir. 1992)). 

The arbitrary and capricious standard is “the most deferential standard of 

judicial review.” Ohio Bell Tel. Co. v. PUC of Ohio, 711 F.3d 637, 641 (6th Cir. 

2013). “When it is possible to offer a reasoned explanation, based on the evidence, 

for a particular outcome, that outcome is not arbitrary or capricious.” Shields v. 

Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003) (quotation marks and 

citation omitted). A decision need only be “rational in light of the plan’s provisions” 

to satisfy the arbitrary or capricious standard. Yeager v. Reliance Standard Life Ins. 

Co., 88 F.3d 376, 381 (6th Cir. 1996) (quotation omitted)).

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“To grant a motion for summary judgment brought by an insurer on the issue 

of whether it lacked good faith, a court must find, after viewing the evidence in a 

light most favorable to the insured, that the claim was fairly debatable and the 

refusal was premised on either the status of the law at the time of the denial or the 

facts that gave rise to the claim.” Keyser, 2005 U.S. Dist. LEXIS 48961, at *24 

(citing Tokles & Son. Inc. v. Midwestern Indem. Co., 65 Ohio St. 3d 621, 630-31

(Ohio 1992)(overruled in part on other grounds by Zoppo v. Homestead Ins. Co., 

1994-Ohio-461, 71 Ohio St. 3d 552, 552)). To survive a summary judgment motion 

on a bad faith claim, Cluck must present evidence tending to show that Unum had 

no reasonable justification for terminating her claim. Keyser, 2005 U.S. Dist. LEXIS 

48961, at *24 (citing Tokles, 65 Ohio St. 3d at 630-31). Intent, however, “is not and 

has never been an element of the reasonable justification standard.” Zoppo, 71 Ohio 

St.3d at 555.

2. Analysis

Although Cluck’s Complaint asserts seven separate bases for her bad faith 

count, she defends only two in her opposition to Unum’s Motion for Summary 

Judgment. Accordingly, she has abandoned the undefended claims. Chic 

Promotions, Inc. v. Jewelers Mut. Ins. Co., No. 1:07cv417, 2009 U.S. Dist. LEXIS 

87930, at *5-6 (S.D. Ohio Sep. 24, 2009)(Barrett, M.)(citing cases); see ECF No. 1, ¶ 

35; see also ECF No. 52. After Cluck’s Supplemental Memorandum in Opposition to 

Unum’s Motion for Partial Summary Judgment, left in issue are Cluck’s bad faith 

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allegations that Unum: (1) failed to adequately investigate Cluck’s LTD claim; (2) 

relied, unreasonably, on its in-house medical reviewers; and (3) placed its own 

business interests ahead of the interests of its insureds. (ECF Nos. 52 and 99.)

a. Investigate

Cluck argues that Unum’s investigation was inadequate because Unum failed 

to “investigate [its] mistaken assumptions about Cluck’s condition,” to “follow 

Unum’s procedures,” and “relied on the medical judgment of a claims handler who 

had no medical training.” (ECF No. 52, PageID 2313.) As such, she argues Unum 

had no reasonable justification for terminating her benefits. 

Turning first to the failure to investigate Cluck’s condition, Cluck argues that 

Unum terminated her claim “not after a thorough investigation, but based upon its 

employees’ mistaken assumption that Cluck’s lack of treatment with specialists 

reflected medical progress.” (ECF No. 52, PageID 2314.) The Court’s extensive 

background section details that Unum sought, obtained, and considered medical 

records from every single doctor Cluck saw. Unum had a functional capacity 

evaluation, a vocational assessment and two separate board-certified physician 

reviews of Cluck’s file performed before deciding to terminate her benefits. Unum’s 

investigation was undoubtedly thorough. As to Cluck’s mistaken assumption 

contention, she provides mere speculation, not evidence. In contrast, Mercier 

testified that Unum viewed Cluck’s failure to treat with specialists as evidence 

discounting Cluck’s claimed high pain levels. (ECF No. 35-1, PageID 1777.) 

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Cluck further argues Unum failed to contact Dr. Taylor to confirm that 

mistaken assumption. Yet, the record is clear that Unum contacted Dr. Taylor on 

multiple occasions to obtain information relative to Cluck’s treatment. See ECF No. 

30-3, PageID 1384-85. Cluck also argues that Unum’s failure to order an IME is 

evidence of bad faith. Id. To repeat, the Policy did not require Unum to do so. And, 

“there is nothing inherently improper with relying on a file review, even one that 

disagrees with the conclusions of a treating physician.” Calvert v. Firstar Fin., Inc., 

409 F.3d 286, 297 n.6 (6th Cir. 2005).

Cluck’s argument as to Unum’s purported failure to follow its own policies is 

premised upon the application of ERISA law to this case. For the reasons discussed 

above, ERISA is inapplicable. 

Cluck’s final evidence of bad faith under this category is her contention that 

Unum improperly relied upon Kathleen Reid, who had no medical training, to make 

the final call as to the termination of Cluck’s benefits. (ECF No. 52, PageID 2314; 

ECF No. 36-1, PageID 1824.) Reid testified that she reviewed the entirety of Cluck’s 

file before reaching her determination. (ECF No. 36-1, PageID 1828, 1830.) The file 

included, inter alia, Dr. Hauser’s and Dr. Sentef’s reviews, Potenzo’s vocational 

assessment, and Mercier’s 2015 functional capacity report. Id. Reid testified that 

she “relied on [her] medical resources to interpret the medical information.” Id. at 

1831. Reid’s reliance on the opinions of medical professionals who had extensive and 

relevant training when reaching her decision is reasonable and not evidence of bad 

faith. See id. at 1828-31, 1833. What Cluck truly takes issue with is not Reid’s 

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reliance on medical professionals but whom she relied upon. That is, Cluck would 

have had no problem if Reid relied on Dr. Taylor’s opinion to determine that Cluck 

remained disabled under the Policy. Mere disagreement with a decision does not 

constitute bad faith. 

In sum, considering the evidence in Cluck’s favor, and applying the arbitrary 

and capricious level of review, Cluck has not presented evidence tending to show 

that Unum had no reasonable justification for terminating her claim.

b. In-house Reviewers

Cluck next argues that Unum relied on the opinions of Mercier, Dr. Hauser 

and Dr. Sentef in bad faith. In support, Cluck highlights that Mercier determined in 

2013 and 2014 during roundtable discussions about Cluck’s file that Cluck was 

disabled under the Policy before finding in 2015 that she was not disabled. 

Describing the change in opinion as “spurious,” Cluck argues that Mercier’s reason 

for the change was that Cluck had stopped treating with specialists. (ECF No. 52, 

PageID 2316.) But Mercier testified that the lack of specialist treatment was “only 

one aspect” of why she concluded in 2015 that Cluck’s disabling restrictions were 

not supported. (ECF No. 35-1, PageID 1778.) Mercier said she also relied upon 

Cluck’s “unremarkable” physical exam findings. Id. Furthermore, Mercier’s 2013 

and 2014 decisions were partially premised on Cluck’s lack of health insurance. 

Cluck secured health insurance in March 2015 which enabled her to pursue 

specialist treatment. Additionally, Mercier’s 2013 and 2014 comments were not 

based on a lengthy clinical review like her June 2015 report was. Under these 

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circumstances, and cognizant of the arbitrary and capricious level of review, Cluck’s 

reliance upon Mercier’s changing opinions as evidence of bad faith is insufficient. 

Cluck’s bad faith reliance argument about Dr. Hauser is that he made “little 

effort” to consult with Dr. Taylor about Cluck’s fibromyalgia. (ECF No. 52, PageID 

2316.) Yet, Dr. Hauser sought, obtained, and considered Dr. Taylor’s opinion. 

Cluck’s contention that Dr. Hauser’s communication with Dr. Taylor shows bad 

faith is incorrect.

Cluck argues that Unum’s reliance on Dr. Sentef’s opinion was in bad faith 

because Unum only asked him if he agreed with the restriction determination of Dr. 

Hauser or Dr. Taylor. Id. As Unum states, this is a distinction without a difference. 

Asking whether Dr. Sentef agreed with the other doctors is the same as asking for 

his opinion on whether Cluck had disabling restrictions.

Reviewing the facts in a light favorable to Cluck while applying the arbitrary 

and capricious review standard yields the determination that Cluck failed to 

present evidence that Unum’s reliance on the opinions of Mercier, Dr. Hauser, and 

Dr. Sentef was in bad faith.

c. Business Interests

Cluck’s final ground supporting her bad faith claim is that Unum

“systematically placed its own business interests ahead of the interests of its

insured,” such that Unum terminated her benefits in bad faith due to financial 

pressure. (ECF No. 99, PageID 2626.) To bolster this contention, Cluck argues that 

Unum lost money on its Policy with Ohio State from 2010 to 2013. Id. at 2628. In 

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an attempt to stem that tide and “drive down” the number of claims, Cluck asserts 

that Unum enlisted the help of its claims staff to increase the participation of the 

Policy’s insureds in Unum’s transitional return-to-work program. Id. at 2631.

According to Cluck, all of this admittedly circumstantial evidence could lead the 

jury to conclude that Unum’s financial losses and desire to reduce claims was the 

true and bad faith reason for its termination of Cluck’s benefits. Id. at 2633. 

The Court agrees with Unum that merely operating a transitional work 

program does not equate to bad faith. (ECF No. 107, PageID 2947.) Moreover, the 

program and any affect it may have had on claims numbers is irrelevant, as Cluck 

did not participate in the program. Additionally, the mere fact that Unum lost 

money on its OSU business years before Cluck’s benefits were terminated does not 

connect with Unum’s decision to terminate Cluck’s specific claim. 

Neither Unum’s financial deficit nor its maintenance of a transitional returnto-work program that Cluck did not take part in show bad faith on Unum’s part.

Considering the evidence in Cluck’s favor, and applying the arbitrary and capricious 

level of review, she has not presented evidence creating a genuine issue of material 

fact that Unum had no reasonable justification for terminating her claim. As such, 

Unum’s Motion for Summary Judgment on Count II is GRANTED. (ECF No. 41.) 

All relief related to this claim is therefore unavailable. 

IV. MOTION TO SEAL

Lastly, Unum seeks an Order: (1) maintaining the sealed status of Exhibits A 

and B to Plaintiff’s Supplemental Memorandum in Opposition to Defendant’s 

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Motion for Partial Summary Judgment (ECF No. 99); (2) keeping Exhibits A-1b, A2, and A-3 of Unum’s Reply (ECF Nos. 105, 106) under seal; and (3) requiring 

redaction of references to Exhibits A, B, A-1b, A-2 and A-3 in publicly filed 

documents. See also ECF Nos. 98, 102. 

The data contained in Exhibit A “constitutes confidential financial 

information related to [the] Policy. . ., which Unum issued to The Ohio State 

University (“OSU”), including the case reserves from year to year, the total 

premiums paid, revenue data, the monthly indemnity incurred, and financial 

calculations.” (ECF No. 77, PageID 2503)(citation omitted). Exhibit B includes “an 

email string and chart that discusses Unum’s rates with OSU, the tolerable loss 

ratio, and the trend regarding incidence of LTD claims.” (ECF No. 102, PageID 

2671.) Exhibit A-1b is a 2013 Long-Term Disability Renewal Executive Summary. 

(ECF No. 106-1.) It discusses Ohio State’s premium contributions to the Policy. It 

contains confidential financial computations. Exhibit A-2 is a confidential email 

discussing appropriate pricing for Ohio State’s 2010 LTD and short-term disability 

plans. (ECF No. 106-2.) Exhibit A-3 is Unum’s 2014 renewal analysis for the Policy. 

(ECF No. 106-3.) It details Unum’s confidential rate calculations, loss and growth 

evaluations, and LTD plan design options.

Unum argues that keeping each of these exhibits under seal and references to 

them redacted is necessary to maintain the confidential nature of that data and to 

prevent the disclosure of information which would place Unum in a competitive 

disadvantage. (ECF No. 102, PageID 2671.) Unum contends that its motion is 

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narrowly tailored and granting its requested relief would result in sealing thirty 

pages of a record that spans more than 2,000 pages. Cluck opposes, arguing that

Unum’s competitive disadvantage contention is insufficient to overcome the public’s 

strong interest in “understanding the evidence underlying the Court’s decision.”

(ECF No. 104, PageID 2888-90.) Unum’s Reply re-frames its original arguments to 

respond to Cluck’s opposition. (ECF No. 108.)

Magistrate Preston Deavers previously addressed whether Exhibits A and B 

should be sealed. (ECF No. 77.) Her well-reasoned Order, which the Court 

incorporates by reference herein, details the correct analytical framework to 

address the seal request as follows: 

It is well established that “[e]very court has 

supervisory power over its own records and files.” Nixon v. 

Warner Commc’ns, 435 U.S. 589, 598 (1978). A court’s 

discretion to seal records from public inspection, however, 

is limited by “the presumptive right of the public to 

inspect and copy judicial documents and files[,]” which the 

United States Court of Appeals for the Sixth Circuit as 

described as a “long-established legal tradition.” In re 

Knoxville NewsSentinel Co., Inc., 723 F.2d 470, 473–74 

(6th Cir. 1983); see also Brown & Williamson Tobacco

Corp. v. FTC, 710 F.2d 1165, 1178–80 (6th Cir. 1983) 

(discussing the justifications for the “strong presumption 

in favor of openness”). Therefore, “[o]nly the most 

compelling reasons can justify non-disclosure of judicial 

records.” Shane Grp., Inc. v. Blue Cross Blue Shield of 

Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal 

quotation marks and citation omitted). The Sixth Circuit 

has indicated that exceptions fall into two categories: (1) 

exceptions “based on the need to keep order and dignity in 

the courtroom”; and (2) “content-based exemptions,” 

which “include certain privacy rights of participants or 

third parties, trade secrets, and national security.” Brown 

& Williamson Tobacco Corp., 710 F.2d at 1179 (citations 

omitted).

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In addition, the Sixth Circuit has recently 

emphasized the public’s “strong interest in obtaining the 

information contained in the Court record.” Shane Grp., 

Inc., 825 F.3d at 305 (internal quotation marks and 

citation omitted); see also In re Nat’l Prescription Opiate 

Litig., 927 F.3d 919, 939 (6th Cir. 2019) (“‘[T]he greater 

the public interest in the litigation’s subject matter, the 

greater the showing necessary to overcome the 

presumption of access.’”) (quoting Shane Grp., Inc., 825 

F.3d at 305). Accordingly, district courts must consider 

“each pleading [to be] filed under seal or with redactions 

and to make a specific determination as to the necessity of 

nondisclosure in each instance” and must “bear in mind 

that the party seeking to file under seal must provide a 

‘compelling reason’ to do so and demonstrate that the seal 

is ‘narrowly tailored to serve that reason.’” In re Nat’l 

Prescription Opiate Litig., 927 F.3d at 940 (quoting Shane 

Grp., 825 F.3d at 305). If a district court “permits a 

pleading to be filed under seal or with redactions, it shall 

be incumbent upon the court to adequately explain ‘why 

the interests in support of nondisclosure are compelling, 

why the interests supporting access are less so, and why

the seal itself is no broader than necessary.’” Id. (quoting 

Shane Grp., Inc., 825 F.3d at 306).

Applying that framework to Exhibits A and B, Magistrate Preston Deavers decided:

Here, the Court finds that the public has some 

interest in this action; however, the information sought to 

be sealed is not of great interest to the public and is 

highly proprietary to Defendant Unum Life Insurance 

Company of America (“Unum”). The seal relates to two 

pages from Unum’s produced discovery and concerns 

Plaintiff’s specific allegations as set forth in her motion to 

re-open discovery. As such, the seal is narrowly tailored to 

the issues in this lawsuit. Further, a compelling reason 

supports the seal because the data contained in these two 

pages constitutes confidential financial information 

related to Group Policy 121156, which Unum issued to 

The Ohio State University (“OSU”), including the case 

reserves from year to year, the total premiums paid, 

revenue data, the monthly indemnity incurred, and 

financial calculations. (See Declaration of Brett Gruss 

(“Gruss Decl.”) Exhibit A, at ¶ 3.) Companies have a

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compelling interest in protecting such information from 

their competitors especially when disclosure would cause 

a competitive disadvantage. London Comput. Sys. v. 

Zillow Ind., No. 1:18-cv-696, 2019 U.S. Dist. LEXIS 

147060, at *9 (S.D. Ohio Aug. 29, 2019); see also The 

Proctor & Gamble Co. v. Ranir, LLC, No. 1:17-cv-185, 

2017 U.S. Dist. LEXIS 131141, at *10 (S.D. Ohio Aug. 17, 

2017) (granting the motion to seal and redact documents 

containing sales information, business plans, and 

financial data).

Id. at 2501-03. The Court agrees with, adopts, and applies the logic espoused in the 

Order as to Exhibits A, B, A-1b, A-2, and A-3. Hence, Unum’s Motion to Seal is 

GRANTED. Exhibits A, B, A-1b, A-2, and A-3 shall be sealed and references to 

them in publicly filed documents shall be redacted.

V. CONCLUSION

Cluck’s Motion for Partial Summary Judgment on Count I is DENIED. (ECF 

No. 40).

Unum’s Motion for Partial Summary Judgment on Count II is GRANTED. 

(ECF No. 41.)

Unum’s Motion to Seal is GRANTED. (ECF No. 102.)

This Opinion & Order is being filed under seal in the first instance. Counsel 

shall confer and submit an agreed redacted version of this Opinion & Order to the 

Court for filing. The Court does not anticipate any disagreement on such a simple 

matter; if there is, areas of dispute shall be clearly marked with short descriptions 

of the basis for objection provided. The proposed agreed redacted Opinion & Order 

shall be e-mailed in Word format to Amy_Vogel@ohsd.uscourts.gov with all counsel 

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and pro se parties copied within ten (10) days of this Opinion & Order. Failure to 

abide by this deadline will result in this Opinion & Order being filed unsealed.

A scheduling order for the final pre-trial and jury trial will issue shortly.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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