IN	THE	UNITED	STATES	DISTRICT	COURT

FOR	THE	SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

DIANE	G.	MELECH,	 )

)

Plaintiff, )

)					

vs.	 ) CIVIL	ACTION	NO.:	10-00573-KD-M

)	

LIFE	INSURANCE	COMPANY	OF )

NORTH	AMERICA, PENSION	AND	 )

WELFARE	PLAN	ADMINISTRATION	 )

COMMITTEE	– THE	HERTZ	 )

CORPORATION,	HERTZ	CUSTOM	 )

BENEFIT	PROGRAM,	AND	THE	HERTZ )

CORPORATION, )

)

Defendants.	 )

ORDER

This	action	is	before	the	Court	on motion	for	summary	judgment	filed	by	defendants

Life	Insurance	Company	of	North	America,	Pension	and	Welfare	Plan	Administration	

Committee	– The	Hertz	Corporation,	Hertz	Custom	Benefit	Program,	and	The	Hertz	

Corporation	(defendants),	memorandum	in	support, proposed determinations	of	

undisputed	facts	and	conclusions	of	law,	and	evidentiary	submissions (docs.	109-112);	the	

response	and	evidentiary	submissions	filed	by	plaintiff	Diane	G.	Melech	(Melech)	(docs.	

143-145); and	defendants’	reply	(doc.		150).			Upon consideration	and	for	the	reasons	set	

forth	herein,	the	motion	for	summary	judgment	is GRANTED.	1 2

																																																							 1		LINA’s	motion	to	strike	(doc.	151)	Melech’s	Exhibit	2	(Social	Security	claim	file)	and	

Exhibit	3	(Melech’s	Declaration)	(doc.	144)	submitted	in	support	of	her	response	is	

GRANTED to	the	extent	that	the	Court	will	not	consider	any	evidence	in	Melech’s	Social	

Security	claim	file	that	was	not	before	LINA.			In	Blankenship	v.	Metropolitan	Life	Ins.	

Co. 644	F.3d	1350,	1354 (11th	Cir.	2011),	the	Court	of	Appeals	for	the	Eleventh	Circuit	

explained	that	“[r]eview	of	the	plan	administrator's	denial	of	benefits	is limited	to	

consideration	of	the	material	available	to	the	administrator	at the	time	it	made	its	

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Melech	filed	her	complaint	for	legal	and	equitable	relief	for	violations	of	the	

Employee	Retirement	Income	Security	Act	(ERISA),	pursuant	to	29	U.S.C.	§	1132(a)(1).		

Initially,	Melech	brought	Count	One	for	failure	to	provide	plan	documents	(doc.	1,	p.	6).		

However,	Melech	withdrew	that	claim	for	relief	in	her	response	to	the	motion	for	summary	

judgment	(doc.	145,	p.	4).		Melech’s	remaining	Count	2	alleges a	claim	for	long	term	

disability	benefits	pursuant	to	29	U.S.C.		1132(a)(1(B).		Melech	alleges	that	she	is	disabled	

under	the	terms	of	the	Hertz	Custom	Benefit	Program	(the	Plan),	an	employee	welfare	

benefit	plan	or	an	employee	pension	plan	as	defined	in	29	U.S.C.	§§	1001,	et	seq.

I.	Findings	of	Fact

A.		The	Policy	

LINA	issued	Group	Policy	VDT-960024	to	The	Hertz	Corporation.		The	Hertz	

Corporation	is	the	Plan	Sponsor	and	the	Plan	Administrator	for	the	Plan.		LINA	serves	as	

																																																																																																																																																																																		

decision[.]”	(citations	omitted);	see	also	Ray	v.	Sun	Life	&	Health	Ins.	Co.,	443	Fed.	Appx.	529,	

533	(11th	Cir.	2011)	(“Based	on	the	administrative	record	available	to	Sun	Life	when	it	

made	its	decision,	.	.	.	we	can	not	say	that	Sun	Life's	denial	of	benefits	was	de	novo wrong.”)	

(citing	Blankenship, 644 F.3d at 1354		for	the	premise	that	“review	of	benefits	denial	is	

limited	to	consideration	of	the	material	available	to	the	administrator	at	the	time	it	made	

its	decision”).		

2		Melech	moves	the	Court	to	strike	defendants’	argument	at	pages	seven	to	thirteen	of	the	

reply	on	the	basis	that	it	is	a	new	ground	for	summary	judgment	which	cannot	properly	be	

raised	in	the	reply.	(Doc.	153,	motion;	Doc.	158,	defendants’	response).			Defendants	

respond	that	their	arguments	are	not	new	arguments	or	theories	for	relief	but	instead	were	

raised	to	address	Melech’s	arguments	in	her	response.		The	motion	to	strike	is	DENIED.			In	

Count	II	of	her	complaint,	captioned	“Action	for	Benefits	under	29	U.S.C.	§	1132(a)(1)(B)”,	

Melech	made	statements	that	defendants	had	not	complied	with	“29 U.S.C.	§	1133’s	

requirement”	regarding	the	wording	of	the	denial	letter	and	that	she	did	not	receive	a	“full	

and	fair	review	of	the	decision	denying	the	claim	as	is	required	by	29	U.S.C.	§	1133	and	29	

C.F.R.	2560.503-1.”	(Doc.	1,	¶	48-50,	52).		However,	Melech’s	“Statement	of	Facts”	does	not	

contain	any	factual	allegation	to	form	the	basis	of	a	claim	of	violation	of	procedural	

requirements	such	as	would	put	defendants	on	notice	of	the	specific	violations	that	were	

asserted.		Therefore,	defendants	properly	moved	for	summary	judgment	as	to	Melech’s	

“Action	for	Benefits”	asserting	that	Melech	received	a	full	and	fair	review	of	her	claim	

initially	and	on	appeal	and	properly	replied	to	Melech’s	response	wherein	she	identified	for	

the	first	time	the	underlying	factual	basis	for	her	claim.	

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the	claims	administrator	with	responsibility	for	adjudicating	claims	for	long	term	disability	

benefits	made	by	participants	of	the	Plan	(doc.	112-1,	p.	2-3,	Affidavit	of	Kellie	Downey,	

Senior	Operations	Representative	at	LINA);	(doc.	112-2,	Administrative	Record).

Under	the	Policy,	the	claimant	Melech	must	provide	proof	of	disability	in	order	for	

benefits	to	be	paid.		The	policy	states	as	follows:

The Insurance Company will pay Disability Benefits if an Employee becomes Disabled 

while covered under this Policy. The Employee must satisfy the Elimination Period, be 

under the Appropriate Care of a Physician, and meet all other terms and conditions of the 

policy. He or she must provide the Insurance Company, at his or her own expense, 

satisfactory proof of Disability before benefits will be paid. The Disability Benefit is 

shown in the Schedule of Benefits. 

(Doc. 112-2, p. 125, Copy of Policy). 

The Policy defines “Total Disability” as follows: 

Definition of Disability/Disabled

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

or she is:

1. unable to perform the material duties of his or her Regular Occupation; and

2. unable to earn 80% or more of his or her Indexed Earnings from working in 

his or her Regular Occupation.

(Doc. 112-2, p. 110, 118). 

The Policy also provides that “[a]fter Disability Benefits have been payable for 24 

months, the Employee is considered Disabled if, solely due to Injury or Sickness, he or she is:

1. unable to perform the material duties of any occupation for which he or she is, 

or may reasonably become, qualified based on education, training or experience; 

and

2. unable to earn 60% or more of his or her Indexed Earnings.

The Insurance Company will require proof of earnings and continued Disability.”

(Doc. 112-2, p. 110, 118). 

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The	Policy	defines	“Regular	Occupation”	as	“[t]he	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.	It	is	not	work	tasks	that	are	performed	for	a	

specific	employer	or	at	a	specific	location.”	(Doc.	112-2,	p.	136).	

The	terms	and	conditions	of	the	Policy,	provide	that	benefits	become	payable	as	

detailed	below:

The	Insurance	Company	will	pay	Disability	Benefits	if	an	employee	

becomes	Disabled	while	covered	under	this	Policy.	The	Employee	must	

satisfy	the	Elimination	Period,	be	under	the	Appropriate	Care	of	a	

Physician,	and	meet	all	the	other	terms and	conditions	of	the	Policy.	He	or	

she	must	provide	the	Insurance	Company,	at	his	or	her	own	expense,	

satisfactory	proof	of	Disability	before	benefits	will	be	paid....

The	Insurance	Company	will	require	continued	proof	of	the	Employee’s	

Disability	for	benefits	for	continue.

(Doc.	112-2,	p.	125).

B.	The	Claim

Melech	began	working	for	Hertz	Corporation	on	June	3,	1977	and	worked	full	time	

as	a	Location	Manager.		Melech	was	responsible	for	managing	the	service	lot	and	its	rental	

counter. (Doc.	145,	p.	5).		Her	duties	required	that	she	be	able	to	sit	for	four	hours,	walk	for	

eight	hours,	stand	for	eight	hours,	lift	for	two	hours,	bend	or	twist	for	thee	hours	and	drive	

for	eight	hours.	(Doc.	112-2,	p.	354).		Melech’s	last	day	of	employment	was	May	8,	2007.		

(Doc.	112-2,	p.	366).	 Melech	left	work	with	complaints	of neck,	shoulder	and	back	pain,	

headaches,	and	numbness	in	her	right	arm	and	hand.	(Doc.	112-2,	p.	184).	

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Melech was treated by Dr. Edmund C. Dyas, IV, an orthopedic physician on May 10, 

2007, for chronic neck and right shoulder pain.3 Dr. Dyas noted as follows:

Patient is having more and more neck and shoulder pain on the right. 

She’s got bad degenerative disc disease at 5-6, 6-7 with stenosis. She’s 

also got frank tendinitis in the right shoulder. She works with a computer 

50 hours a week, and I think that’s entirely too much for her. We’ll take 

her off work 2 weeks, put her on PT [physical therapy] and we injected the 

subscapular bursa today and renewed her Lortab 5. We’ll see her back in 

2 weeks. 

(Doc. 112-2, p. 339). 

From May 14, 2007 through June 20, 2007, Melech went to physical therapy at Fleming 

Rehab and Sports Medicine two to three times per week. (Doc. 112-2, p. 249-267). The 

physical therapists’ assessment notes are generally unreadable either because of poor 

handwriting or use of symbols and acronyms. However, an overall review indicates that Melech 

initially had tenderness in the cervical spine, reduced strength (“3” out of “5”) and limited range 

of motion in her neck and right shoulder. The therapist’s goal was to increase the range of 

motion and strength and improve Melech’s posture which was initially noted as “head forward”, 

“shoulders rounded” and “c spine flexed”. (Doc. 112-2, p. 266-267). The notes indicate that 

Melech attended therapy in May and June 2007, and was to continue treatment for two to three 

more weeks, but did not, (Doc 112-2, p. 249-250). One readable assessment was written on June 

13, 2007, Melech’s next to last session – “Pt. tol therap well. No complaints of pain or 

discomfort.” (Doc. 112-2, p. 251). Another readable assessment was written on June 11, 2007 –

																																																							 3		In	Melech’s	proposed	statement	of	facts,	she	states	that	she	first saw Dr. Dyas on April 1, 

2004 with complaints of neck pain radiating down her shoulder into her arm. She provides an 

insufficient cite to the record for this statement of fact. Melech cites to “Plaintiff’s Evidentiary 

Submission “Pl’s Evid. Sub.”) D.E. 144 at Exh. 2). Docket entry 144, Exhibit 2 is Melech's 

Social Security Claim file which consist of 148 pages. The Court has stricken Exhibit 2 to the 

extent that any evidence therein was not before LINA on the administration of Melech’s claim. 

Additionally, without a cite to a specific page among the 148 pages, the Court will not search 

Docket Entry 144 to find Melech’s evidence. 

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“Overall cervical mobility	and	[head	ache]	pain	are	improving.		Though	still	stiff	esp[ecially]	

upper	C	&	T	spine.		Needs	to	cont[inue]	to	advance	postural	program	to	help	[decrease]	

strain		___?__	C	spine.”	(Doc.	112-2,	p.	252).			

On May 18, 2007, Melech was referred to Dr. Todd Engerson, an orthopedic physician,

for a second opinion. Dr. Engerson noted as follows: 

[Physical Examination] Healthy appearing lady. She has some cervical 

spasm, some tenderness diffusely in the interscapular region, upper 

trapezius on the right side. Full [range of motion] of her right shoulder 

with mild impingement signs. Does have some pain with resisted 

abduction and forward elevation. Gross motor and sensory testing upper 

extremities basically [within normal limits]. 

X-Ray C-spine show significant cervical [degenerative disc disease] at 5-6 

and 6-7 with some good sized posterior osteophytes, loss of the normal 

cervical lordosis associated with spasm. 

[Impression]: Cervical [degenerative disc disease] with exacerbation. 

[Recommendation]: I agree with Dr. Dyas’ treatment and have written a 

note back to that effect. See Dr. Dyas in follow-up 

(Doc. 112-2, p. 237). 

Dr. Dyas saw Melech again on May 24, 2007, he noted as follows:

A little better with her physical therapy and rest. We will keep her off 

until next Tuesday and see her back here in two weeks.

(Doc. 112-2, p. 339). 

On June 7, 2007, Dr. Dyas noted as follows:

Patient is having more pain in her neck, shoulder and arm. She is intact 

neurologically. She is depressed about her job situation and I think that 

we need to get a MRI scan of her neck to see if it is any worse as it has 

been over a year. I also think that she can not go back to this job. 

(Doc. 112-2, p. 339). 

Also, on June 7, 2007, Dr. Dyas wrote as follows:

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To Whom it May Concern

The above captioned patient is under my care. She is permanently and totally 

disabled. She can not return to her present job. . . . 

(Doc. 112-2, p. 340). 

On June 12, 2007, the MRI of Melech’s cervical spine showed:

Clinical History: Neck and Right Upper Extremity Pain.

Findings: Spin-echo sagittal, axial and STIR sagittal images were 

obtained. The cervical spine is in anatomic alignment. There is mild 

flattening of the C5-6 and C6-7 intervertebral disc without evidence of a 

disc protrusion and there is also bilateral spondolytic change at these 2 

levels with foraminal encroachment. No other abnormality of the cord is 

seen. Bone marrow signal is within normal limits. 

Impression: Bilateral spondylosis C5-6 and C6-7 with foraminal 

encroachment. 

(Doc. 112-2, p. 339). 

On September 13, 2007, Melech saw Dr. Dyas again and he noted as follows:

Continues to have disabling pain in her neck and shoulder. I injected the 

trigger area in her neck and renewed her medicine today. We will see her 

back here as needed. She still can’t work with all of these problems. 

(Doc. 112-2, p. 311, 339)

On or about October 2, 2007, Melech applied for long term disability benefits with LINA 

and her initial claims manager was Eric Poliziani. (Doc. 112-2, p. 4 “Primary Claim File.”) 

Melech’s occupation was identified as “Station Manager” with an occupational category of 

“Office and Clerical”. (Doc. 112-2, p. 66). Her medical condition was identified as “severe 

degenerative disk disease”. (Id.) On or about October 4, 2007, a letter was mailed to Melech 

which confirmed receipt of the claim, explained certain aspects of the claims process, and 

requested additional information. (Doc. 112-2, p. 83-84). 

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On October 12, 2007, Melech saw Dr. Jonathan Miller with complaints of abdominal 

pain and diarrhea. (Doc. 112-2, p. 192). Dr. Miller noted her history of “some degenerative disk 

disease, some hand pain, some anxiety and insomnia” and her current medications were 

“Prevacid, Xanax, Soma, occasional Lortab, fish oils and some vitamin E”. (Id.) On physical 

examination (relevant to the issues before the Court), Dr. Miller noted that all “[j]oints show full 

range of motion” and that Melech’s neck was “Supple. No [jugular vein distension]. 

Nontender.” (Id.) Dr. Miller prescribed Ambien for insomnia instead of Xanax and Nexium for 

gastroesophageal reflux disease. (Id. p. 193). 

On October 12, 2007, Poliziani, faxed a letter and form to Dr. Dyas asking that he 

provide office notes, answer questions regarding prognosis for recovery, return to work, and 

referral to other specialist, and also asking Dr. Dyas to “help [LINA] understand [Melech’s] 

current level of functional ability by completing the enclosed Physical Abilities Assessment 

form.” (Doc. 112-2, p. 342-345). 

On October 18, 2007, Dr. Dyas faxed the form and letter back to Poliziani. On the face 

of the letter Dr. Dyas appears to have written “Pt is permanently & totally disabled.” He did not 

complete the Physical Abilities Assessment form but did sign it. (Doc. 112-2, p. 341-345). 

On	October 24, 2007,	Poliziani	contacted	Fleming	Rehab.		Poliziani	asked for	

rehabilitation	notes	from	May	2007	to	the	present,	prognosis,	and	any	return	to	work	plan.		

(Doc.	112-2,	p.	322-323).		He	also	asked	for	“help	[to]	understand [Melech’s] current level of 

functional ability by completing the enclosed Physical Abilities Assessment form.” (Id.) 

Fleming Rehab responded by letter stating that “we have not seen Ms. Melech since June 20, 

2007 and cannot make any recommendations or assessments at this time” and that “we will need 

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to re-evaluate her or schedule a functional capacity evaluation (FCE) to determine her work 

ability.” (Doc. 112-2, p. 321). No FCE was obtained. 

On November 6, 2007, Melech completed a “Disability Questionnaire & Activities of 

Daily Living” form. (Doc. 112-2, p. 184-187). Melech stated that “her neck	hurts	very	badly	

when	sitting	at	computer	causing	severe	headaches	and	neck	pain,	right	arm	and	hand	goes	

numb.	Lower	back	hurts	when	standing	or	bending.	For	period	of	time	using	phone	causes	

pain	in	neck.”	(doc.	112-2,	p.	185).		She	stated	that	she could	drive	“as	needed”	and	

regularly	cooked,	cleaned,	shopped,	did	laundry,	read,	watched	television,	and	attended	

church.		(Id.)		For	recreation	she	stated	that	she	“watched	football,	visit	with	family	&	

friends,	go	out	to	eat,	lay	on	beach	during	summer”	(Id.)		She	also	reported	that	she	

attended	to	all	her	personal	grooming	and	dressing	needs.		(Id.)		As	to	exercise,	she	stated	

that	her	therapist	had	told	her	to	“___	with	elastic	bands”	(Doc.	112-2,	p.	186).			Her	

medications	were	identified	as	Nexium	once	daily,	Lortab	as	needed,	Soma	as	needed,	

Xanax	at	night,	and	Estrace	once	daily.	(Doc.	187).			She	indicated	her	visits	with	Dr.	Dyas	

were	on	an	“as	needed”	basis.	(Doc.	187).		

Melech	described	the	“Major	Duties”	of	her	job	as	“Doing	reports,	handling	

customers,	renting	cars,	making	schedules	for	employees,	safety	issues”	.	(Doc.	112-2,	p.	

186).		She	described	the	“Minor	Duties”	of	her	job	as	“Moving	cars,	cleaning	&	vacuuming	

cars,	preparing	cars	where	necessary;	inventory.”		(Id).		She	used	a	computer,	copy	

machine,	fax	and	a	vacuum.	(Id.)	

On	November	13,	2007,	Poliziani	“sent	a	follow	up	request”	to	Dr.	Dyas.		Poliziani	

requested	“objective	findings,	copies	of	June	2007	MRI,	[patient]	reports,	medication, PAA	

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[physical	abilities	assessment]	and	office	visit	notes	beyond	[last	office	visit]	in	file	of	

9/13/07.”		(Doc.	112-2,	p.	36).			Dr.	Dyas	did	not	respond	to	the	request.			

On	November	20,	2007,	Jeffrey	Weber,	Nurse	Case	Manager,	reviewed	Melech’s	

records	and	found	that	

[Claimant]	treating	for	neck	pain	due	to	[degenerative	disc	disease].		

Cervical	MRI	is	unremarkable.	Dr.	Dyas	states	[claimant]	is	totally	&	

permanently	disabled	due	to	pain.		[Record]	does	not	support	no	work.

(Doc.	112-2,	p.	183).	

On	November	26,	2007,	Weber	faxed	a	letter	to	Dr.	Dyas	requesting	clarification	as	

to	Melech’s	“condition	and	work	status.”	(Doc.	112-2,	p.	79-80).		The	letter	asked	Dr.	Dyas	

to	advise	whether	he	had	seen	Melech	since	September	13,	2007,	to	“provide	objective	

findings	to	support	Ms.	Melech	being	permanently	and	totally	disabled”,	and	explained	that	

“an	‘off	work’	note	is	not	sufficient	documentation	to	certify	disability.”	(Id.).

On	November	29,	2007,	Poliziani	wrote	Melech	that	LINA was	unable	to	approve	her	

claim.	(Doc.	112-2,	p.	172-176).			Poliziani	explained	that	Melech’s	job	of	Location	Manager	

was	categorized	as	Light	Work	in	the	U.S.	Department	of	Labor	Description	of	Occupational	

Titles	(DOT)	and	that	LINA	must	look	at	Melech’s	occupation	as	defined	in	the	DOT	and	not

her	specific	job.		He	summarized	the	medical	evidence	including	the	June	12,	2007	MRI	

results	and	other	evidence	including	Melech’s	statement	of	daily	activities	that	had	been	

reviewed.	Poliziani	explained	as	follows:		

Claim	Summary	

Upon	review	of	the	documentation	provided,	we	were	unable	to	validate	

medical	documentation	which	supported	your	inability	to	perform	the	

material	duties	of	your	Regular	Occupation.		In	reviewing	Dr.	Engerson’s		

office	notes	,	no	restrictions	were	noted	and	he	concurred	with	Dr.	Dyas	

treatment	plan	at	that	time	of	no	work	for	2	weeks.		A	review	of	the	MRI,	

while	noting	some	flattening	of	the	C5-6	and	C6-7,	noted	your	spine	was	

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in	anatomic	alignment	with	no	disc	pertrusion	and	bone	marrow	signal	

being	within normal	limits.	In	reviewing	Dr.	Dyas’	notes,	while	

restrictions	and	limitations	were	noted,	no	findings	supporting	a	no	work	

restriction	were	documented.		Dr.	Dyas	notes	contained	no	findings	which	

support	his	notice	that	you	are	permanently	disabled.	

In	an	attempt	to	gather	additional	documentation	from	Dr.	Dyas,	our	

Nurse	Case	Manager	contacted	Dr.	Dyas	office	on	November	21,	2007	for	

clarification	of	his	findings	as	they	relate	to	your	restrictions.		On	

November	26,	2007,	we	also	contacted	Dr.	Dyas	office	and	requested	his	

objective	findings	to	support	his	restrictions	and	limitations.	To	date,	Dr.	

Dyas	has	not	responded	to	either	request.	

As	the	medical	documentation	contained	in	your	file	does	not	support	a	

no	work	restriction	we	are	unable	to	approve	your	claim.	

Therefore	at	this	time	we	have	closed	your	claim	and	no	benefits	are	

payable	as	the	medical	information	does	not	support	how	you	are	unable	

to	work.	

(Doc.	112-2,	p.	174-175).			

Melech’s	was	advised	of	her	right	to	appeal	in	the	denial letter.		The	letter	explained	

that	

Appeal	Rights	

If	you	disagree	with	our	determination	and	intent	to	appeal	this	claim	

decision,	you	must	submit	a	written	appeal		.	.	.	

You	have	the	right	to	submit	written	comments	as	well	as	any	new	

documentation	you	wish	us	to	consider.		If	you	have	additional	

information,	it	must	also	be	sent	for	further	review	.	.	.	.	

We	would	be	happy	to	consider	any	medical	evidence	which	supports	

your	total	disability.		Medical	evidence	includes,	but	is	not	limited	to:	

physician’s	office	notes,	hospital	records,	consultation	reports,	test	result	

reports,	therapy	notes,	physical	and/or	mental	limitations	(i.e.,	Functional	

Capacities	Testing),	etc.		These	medical	records	should	cover	the	period	of	

May	2007	through	the	present.

(Doc.	112-2,	p.	175).	

Melech	returned	to	Dr.	Dyas’	on	January	3,	2008.		His	notes	state	that	

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Patient	continues	to	have	disabling	pain	in	her	neck	and	right	shoulder.	

She	has	degenerative	disc	disease	in	her	neck	with	cervical	spondylosis.		I	

think	she	has	a	rotator	cuff	tear	in	the	right	shoulder.		We	injected	about	

the	base	of	her	neck	today.		We	renewed	her	medication	Lortab	and	

Soma.	

(Doc.	112-2,	p.	170).		

On	January	31,	2008,	Melech	appealed	the	decision.	(Doc.	112-2,	p.	168).			She	

submitted office	notes	and	a	letter	from	Dr.	Dyas	dated	January	3,	2008,	wherein	he	

explained	as	follows:	

This	57	year	old	white	female	has	been	followed	since	she	had	to	stop	

working	at	Hertz	Rental	Car	because	of	the	chronic	pain	in	her	neck,	right	

shoulder	and	low	back.		She	has	been	worked-up	in	the	past	and	has	

cervical	spondylosis	at	C5-6	and	C6-7.		Physical	findings	associated	with	

that	are	limited	neck	movement	by	50%.		She	also	has	a	rotator	cuff	tear	

in	her	right	shoulder	which	is	chronically	and	intermittently	painful	

related	to	activity.		She	also	has	chronic	low	back	pain	with	stiffness.		

Neurologic	exam	has	appeared	normal.	

X-rays	of	this	lady	show	degenerative	disc	disease	at	C5-6	and	C6-7.		

Lumbar	spine	shows	she	has	degenerative	changes	at	L4-5	and	L5-S1.

This	lady’s	job	consisted	of	working	at	Hertz	where	she	was	responsible	

for	the	whole	operation	at	times.		She	worked	rotating	shifts	requiring	

long	hours	standing	and	walking	in	the	parking	lot	and	cleaning	

automobiles,	vacuuming	the automobiles.		It	has	been	my	opinion	that	

this	lady	is	unable	to	do	this	job	and	remains	the	same.	

(Doc.	112-2,	p.	169).

On	February	5,	2008,	Senior	Claims	Manager	Marianna	Dileo	acknowledged	receipt	

of	the	appeal	and	in	the	box	labeled	“Comment/Review	Outcome/ Rationale/Plan”	stated	

as	follows:

2/5/08	New	medical	received	fails	to	conclusively	support	the	RL’s	based	

on	[diagnosis] of	cervical	[degenerative	disc	disease].		Only	new med	

received	per	cm	is	an	1/3/08	[Attending	Physician	(AP)] ortho	on	where	

no	measurable	exam	findings	are	provided	to	clarify	limitations	to	

functionality.		AP	only	notes	[complaints]	of	disabling	pain	in	neck	&	

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[right]	shoulder.		Does	not	describe	any	dermatomal	findings,	no	ROM	or	

muscle	weakness,	no	sensory	loss	or	gait	defects	noted.

(Doc.	112-2,	p	163).	

Also,	on	February	5,	2008,	a	letter	was	sent	to	Melech	acknowledging	receipt	of	the	

records	from	Dr.	Dyas.		The	letter	also	explained	that		

The	appeal	request	is	being	referred	to	our	Disability	Appeals	Team.		Any	

additional	information	submitted	may	impact	the	appeal	decision.		

Therefore,	we	ask	that	you	carefully	review	the	enclosed	original	denial	

letter	dated	November	29,	2007	to	ensure	that	any	and	all	available	

medical	or	other	documentation	related	to	your	claim	has	been	

submitted.

(Doc.	112-2,	p.	166).	

On	April	16,	2008,	M.J.	Kelly,	RN,	reviewed	the	medical	records.		Kelly	stated	as	

follows:

Review	of	medical	[claimant] saw	2	orthos, neither	exam	demonstrates	

loss	of	strength,	reflexes	or	sensation	of	[upper	extremity].		AP	ortho	Dr.	

Dyas	feels	[claimant]	has	[Rotator	Cuff]	tear	but	no	imaging	on	file.		

Medical	reviewed	does	not	show	severity	of	symptoms	or	exam	findings	

to	support	impairment.

(Doc.	112-2,	p.	160).		

On	April	17,	2008,	Tracy	Shimko,	Appeals	Claim	Manager,	wrote	Melech	that	the	

denial	had	been	upheld	on	appeal.	(Doc.	112-2,	p.	157-158).		Shimko	identified	Melech’s	

occupation	as	Station	Manager	which	“required	light	demand	activities	according	to	the		

[DOT]”.	(Id.)			Shimko	explained	as	follows:	

To	ensure	appropriate	interpretation	of	medical	documentation,	a	review	

was	completed	with	our	Nurse	Case	Manager	(NCM).		The	NCM	

commented	that	medical	information	on	file	clearly	documents	your	

subjective	complaints	of	pain	in	your	neck,	right	shoulder	and	low	back.		

The	MRI	of	your	cervical	spine	performed	June	12,	2007	showed	bilateral	

spondylosis	of	C5-C7	with	foraminal	encroachment.		The	exam	findings	of	

Dr.	Engerson	and	Dr.	Dyas	fail	to	demonstrate	loss	of	strength,	reflexes	or	

sensation	of	your	upper	extremities.		Dr.	Dyas	notes	you	have	a	rotator	

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14

cuff	tear,	however,	there	is	no	imaging	on	file	to	substantiate	this	

diagnosis.		The	medical	reviewed	does	not	show	severity	of	symptoms	or	

exam	findings	to	support	a	total	impairment	from	your	own	occupation.		

In	summary,	a	review	of	the	medical	information	fails	to	provide	evidence	

of	any	clinical	findings	to	negate	your	previously	assessed	level	of	

function.		In	addition	the	medical	records	do	not	provide	documentation	

to	support	the	restrictions	imposed	by	your	physician	or	your	inability	to	

function	in	your	own	occupation.		Therefore,	since	the	medical	on	file	

does	not	provide	Disability,	we	must	affirm	our	previous	decision	to	deny	

benefits.	

(Doc.	112-2,	p.	157-158).			

Shimko	also	explained	that	Melech	may	request	a	review	and	that	

[i]n	addition	to	any	written	comments,	your	request	for	review	must	

include	new	documentation	you	wish	us	to	consider.		This	documentation	

includes,	but	is	not	limited	to:	copies	of	office notes,	test	results,	physical	

examination	reports,	mental	status	reports,	consultation	reports,	or	any	

other	pertinent	medical		information	from	May	2007	to	the	present.”	

(Id.)	

Melech	was	seen	by	Dr.	Dyas	on May	22,	2008.		He	noted	that	Melech	“continues	to	

have	increasing	neck	pain”	and	injected	a	sensitive	area	at	the	“lower	cervical	region”.	(Doc.	

112-2,	p.	144).		He	noted	that	Melech	was	“intact	neurologically”	but	had	“some	soreness,	

pain	and	weakness	in	her	right	shoulder.”	(Id.)		

Dr.	Dyas	recommended	another	MRI	of	the	cervical	spine	and	shoulder	which	was	

obtained	on	May	23,	2008.			Melech	provided	a	copy	of	the	MRI	results.		The	radiologist	

found	that	Melech’s	right	shoulder	did	not	have	a	rotator	cuff	tear	but	did	have	tendinitis	or	

tendinopathy	and	“mild	osteoarthritic	spurring	neighboring	the	AC	joint	with	peri-articular	

edema.”	(Doc.	112-2,	p.	143).			The	MRI	of	Melech’s	cervical	spine	was	interpreted	as	

showing	

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1.		Moderate	degenerative	disc	changes	at	C5-6	and	C6-7	with	broad	

based	extruded	disc	resulting	in	mild	central	stenosis	at	each	of	these	

levels.	

2.	Mild	spondylitic	disc	changes	at	C4-5.

(Doc.	112-2,	p.	143).		The	C4-5	and	C3-4	discs	were	“essentially	unremarkable”	and	the	C7-

T1 showed	“mild	spondylitic	protruding	disc”	but	was	“otherwise	unremarkable.”	(Id.) 4

On	October	10,	2008,	Melech	wrote	LINA	and	requested	another	review	of	the	

decision.			Melech	provided	records	from	Dr.	Dyas	and	analyses	from	her	treating	

psychiatrist	and	therapist.		She	also	advised	LINA	that	she	was	receiving	Social	Security	

Disability	Income	benefits.			Melech	also	explained	that	LINA	had	evaluated	her	claim	based	

on	the	occupation	of	Location	Manager	as	described	in	the	DOT	185.167-058	but	that	title	

was	Service	Manager	and	had	different	duties.		Melech	asked	that	her	disability	be	

evaluated	based	on the	job	she	actually	performed	as	Location	Manager	for	Hertz	and	not	

the	DOT	description	for	“Service	Manager”.5 (Doc.	112-2,	p.	141-142).		

Melech	provided	Dr.	Dyas’	notes	from	May	2008	and	also	submitted	psychiatric	and	

therapy	records	from	August	and	September	2008	and	an	October	1,	2008	psychiatric	

evaluation	report.	(Doc.	112-2,	p.	148-156).		The	records	are	substantially	redacted	or	

highlighted	in	a manner	that	most	are	unreadable.		The	page	captioned	“Current	Diagnosis”	

shows	the	principal	diagnosis	as	“mood	disorder	due	to	.	.	.	(indicate	the	general	medic”	

(sic)	(Doc.	112-2,	p.	152).	

																																																							 4		Item	2	of	the	radiologist’s	impression	may	be	incorrect.		In	the	report,	mild	spondyltic	

disc	protrusion	was	found	at	the	C7-T1	and	not	at	the	C4-5.		The	C4-5	was	noted	as	

“essentially	unremarkable.”		(Doc.	112-2,	p.	143).			The	possible	error,	however,	does	not	

affect	the	overall	impression	that	Melech’s	degenerative	disc	disease	was	identified	as	

either	mild	or	moderate.	

5		LINA	referenced	DOT	185.167-058	which	defines	Service	Manager	(automotive).	

http://www.occupationalinfo.org/18/185167058.html.		The	only	Location	Manager	

definition	found	in	the	DOT	refers	to	“Location	Manager	(motion	picture;	radio-tv	broad.)”.		

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On	October	15,	2008,	Tracy	Shimko,	Appeals	Claims	Manager,	wrote	Melech	to	

explain	that	accepting	a	second	appeal	is	voluntary	on	the	part	of	LINA	and	that	LINA	had	

decided	not	to	accept	Melech’s	second	appeal.		Shimko	discussed	the	psychiatric	records	

received	and	concluded	that	the	records	did not	demonstrate	that	Melech	was	

psychiatrically	impaired	from	May	2007	to	the	present.		Shimko	discussed	Dr.	Dyas’	

records,	found	that	they	were	“devoid	of	any	physical	exam	findings	demonstrating	the	

severity	of	any	motor,	sensory,	vascular	or	neurological	deficits	impairing	[Melech’s]	ability	

to	function” and	stated	that	LINA	was	unable	to	consider	the	second	appeal because	Melech	

had	not	provided	“medical	documentation	that	would	alter	our	previous	decision.”	(Doc.	

112-2,	p.	139).			The	letter	also	explained	what	type	of	medical	documentation	was	

necessary	for	a	second	appeal.		

Melech	did	not	file	another	appeal.		This	action	was	filed	on	October	15,	2010.		

II.		Conclusions	of	Law

A.		Summary	Judgment Standard

Summary judgment should be granted “if the movant shows 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). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must

(A) cit[e] to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) show[] that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.

Fed. R. Civ. P. 56(c)(1)(A)(B).

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The party seeking summary judgment bears “the initial burden to show the district court,

by reference to materials on file, that there are no genuine issues of material fact that should be

decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party

seeking summary judgment “always bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).

Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant

to show the existence of a genuine issue of material fact. Id. “In reviewing whether the

nonmoving party has met its burden, the court must stop short of weighing the evidence and

making credibility determination of the truth of the matter. Instead, the evidence of the 

nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.

Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) citing Anderson v. Liberty Lobby,

477 U.S. 242, 255, 106 S.Ct. 2505 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,

90 S.Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment

if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her

case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163 

(11thCir. 1995) quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552. Overall, the Court 

must “resolve all issues of material fact in favor of the [non-movant], and then determine the 

legal question of whether the [movant] is entitled to judgment as a matter of law under that 

version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) citing Durruthy 

v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).

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B.	ERISA	Standard	of	Review	6

ERISA	provides	no	standard	for	courts	reviewing	the	benefits	decisions	of	plan	

administrators	or	fiduciaries;	thus,	the	Supreme	Court	established	guidance	for	same	in	

Firestone	Tire	&	Rubber	Co.	v.	Bruch,	489	U.S.	101,	109	(1989)	and	Metropolitan	Life	Ins.	Co.	

v.	Glenn,	554	U.S.	105	(2008).		More	recently,	the	Eleventh	Circuit	has	reiterated	a	multistep	framework	to	guide	lower	courts	when	reviewing	a	plan	administrator's	benefits	

decision.		This	framework	consists	of	the	following	“six-step	expanded	Firestone”	test:	

(1)	Apply	the	de	novo	standard	to	determine	whether	the	claim	

administrator's	benefits-denial	decision	is	“wrong”	(i.e.,	the	court	disagrees	

with	the	administrator's	decision);	if	it	is	not,	then	end	the	inquiry	and	affirm	

the	decision.		

(2)	If	the	administrator's	decision	in	fact	is	“	de	novo	wrong,”	then	determine	

whether	he	was	vested	with	discretion	in	reviewing	claims;	if	not,	end	

judicial	inquiry	and	reverse	the	decision.	

(3)	If	the	administrator's	decision	is	“de	novo	wrong”	and	he	was	vested	with	

discretion	in	reviewing	claims,	then	determine	whether	“reasonable”	

grounds	supported	it	(hence,	review	his	decision	under	the	more	deferential	

arbitrary	and	capricious	standard).		

(4)	If	no	reasonable	grounds	exist,	then	end	the	inquiry	and	reverse	the	

administrator's	decision;	if	reasonable	grounds	do	exist,	then	determine	if	he	

operated	under	a	conflict	of	interest.		

(5)	If	there	is	no	conflict,	then	end	the	inquiry	and	affirm	the	decision.		

(6)	If	there	is	a	conflict,	the	conflict	should	merely	be	a	factor	for	the	court	to	

take	into	account	when	determining	whether	an	administrator's	decision	

was	arbitrary	and	capricious.

Blakenship	v.	Metropolitan	Life	Ins.	Co.,	644	F.3d	1350,	1355	(11th	Cir.	2011)	(citing	Capone	

																																																							 6		The	summary	judgment	analysis	is	“applied	in	a	modified	manner	in	an	ERISA	case.”		

Rogers	v.	Hartford	Life	and	Accident,	Ins.	Co., 2012	WL	12883409,	*1	n.2		(M.D.	Ala.		April	16,	

2012)	(slip	copy)	(citing	Blankenship	v.	Met.	Life	Ins.	Co.,	644	F.3d	1350,	1354	n.	4	(11th	Cir.

2011)).

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19

v.	Aetna	Life	Ins.	Co.,	592	F.3d	1189,	1195	(11th	Cir.	2010)	and	Williams	v.	BellSouth	

Telecomms.,	Inc.,	373	F.3d	1132,	1137	(11th	Cir.	2004),	overruled	on	other	grounds	by	

Doyle	v.	Liberty	Life	Assurance	Co. of	Boston,	542	F.3d	1352	(11th	Cir.	2008)).	 “All	steps	of	

the	analysis	are	‘potentially	at	issue’	where	a	plan	vests	discretion	to	the	plan	

administrator	to	make	benefits	determinations.	See	id,	at	1356	n.7.		Overall,	Melech	has	the	

burden	to	establish	that	she	is	entitled	to	benefits	under	the	Plan.		Watts	v.	BellSouth	

Telecommunications,	Inc.,	218	Fed.Appx.	854,	856,	(11th	Cir.	2007).	

III.		Analysis

A.		Full	and	Fair	Review

In	response	to	the	motion	for	summary	judgment,	Melech	argues	that	LINA	violated	

ERISA’s	procedural	requirements	and	therefore	the	action	should	either	be	remanded	to	

LINA	for	a	full	and	fair	review	or	LINA	should	be	ordered	to	pay	the	claim.	 Specifically,	

Melech	argues	that	LINA’s	initial	denial	letter	violated	29	C.F.R	§	2560.503-1(g)(1)(i)	

because	LINA	did	not	explain	the	rationale	behind	its	decision	but	instead	stated	only:		“As	

the	medical	documentation	contained	in	your	file	does	not	support	a	no-work	restriction	

we	are	unable	to	approve	your	claim.”		(Doc.	145,	 p.	21).			

Title	29	C.F.R	§	2560.503-1(g)	provides	for	the	“[m]anner	and	content	of	notification	

of	benefit	determination.”		Paragraph	(g)(1)(i)	states,	in	relevant	part	as	follows:		

(1)	Except	as	provided	in	paragraph	(g)(2)	of	this	section,	the	plan	

administrator	shall	provide	a	claimant	with	written	or	electronic	

notification	of	any	adverse	benefit	determination.	.	.	.		The	notification	

shall	set	forth,	in	a	manner	calculated	to	be	understood	by	the	claimant--

(i)	The	specific	reason	or	reasons	for	the	adverse	determination;	

29	C.F.R	§	2560.503-1(g)(1)(i).	

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Review	of	the	initial	denial	letter	shows	that	it	contained	specific	reasons	for	the	

decision and	satisfied	the	requirements	of	the	regulation.		See	Ecklund v.	Continental	Cas.	

Co., 415	F.Supp.2d	1353,	1376 (N.D.Ala.	2005) (addressing	a	similar	argument	regarding	

lack	of	a	full	and	fair	review	and	finding	that	CAN	clearly	explained	the	reasons	for	denying	

the	claim).			After	discussing	the	medical	and	therapy records,	LINA	explained	as	follows:			

Claim	Summary	

Upon	review	of	the	documentation	provided,	we	were	unable	to	validate	

medical	documentation	which	supported	your	inability	to	perform	the	

material	duties	of	your	Regular	Occupation.		In	reviewing	Dr.	Engerson’s		

office	notes	,	no	restrictions	were	noted	and	he	concurred	with	Dr.	Dyas	

treatment	plan	at	that	time	of	no	work	for	2	weeks.		A	review	of	the	MRI,	

while	noting	some	flattening	of	the	C5-6	and	C6-7,	noted	your	spine	was	

in	anatomic	alignment	with	no	disc	pertrusion	and	bone	marrow	signal	

being	within	normal	limits.	In	reviewing	Dr.	Dyas’	notes,	while	

restrictions	and	limitations	were	noted,	no	findings	supporting	a	no	work	

restriction	were	documented.		Dr.	Dyas	notes	contained	no	findings	which	

support	his	notice	that	you	are	permanently	disabled.	

In	an	attempt	to	gather	additional	documentation	from	Dr.	Dyas,	our	

Nurse	Case	Manager	contacted	Dr.	Dyas	office	on	November	21,	2007	for	

clarification	of	his	findings	as	they	relate	to	your	restrictions.		On	

November	26,	2007,	we	also	contacted	Dr.	Dyas	office	and	requested	his	

objective	findings	to	support	his	restrictions	and	limitations.	To	date,	Dr.	

Dyas	has	not	responded	to	either	request.	

As	the	medical	documentation	contained	in	your	file	does not	support	a	

no	work	restriction	we	are	unable	to	approve	your	claim.	

Therefore	at	this	time	we	have	closed	your	claim	and	no	benefits	are	

payable	as	the	medical	information	does	not	support	how	you	are	unable	

to	work.	

(Doc.	112-2,	p.	174-175).			

Melech	also	argues	that	LINA’s	denial	letter	violated	29	C.F.R	§	2560.503-1(g)(1)(iii)	

because	LINA	failed	to	describe	“what	kind	of	additional	medical	information”	or	additional	

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material	or	information	was	needed	and	failed	to	explain	why	the	material	or	information	

was	necessary.	

Title	29	C.F.R	§	2560.503-1(g)	provides	for	the	“[m]anner	and	content	of	notification	

of	benefit	determination.”		Paragraph	(g)(1)(iii)	states,	in	relevant	part	as	follows:		

(1)	Except	as	provided	in	paragraph	(g)(2)	of	this	section,	the	plan	

administrator	shall	provide	a	claimant	with	written	or	electronic	

notification	of	any	adverse	benefit	determination.	.	.	.		The	notification	

shall	set	forth,	in	a	manner	calculated	to	be	understood	by	the	claimant-- 			

(iii)	A	description of	any	additional	material	or	information	necessary	for	

the	claimant	to	perfect	the	claim	and	an	explanation	of	why	such	material	

or	information	is	necessary;	

29	C.F.R	§	2560.503-1(g)(1)(iii).	

As	stated	above,	the	denial	letter	of	November	29,	2007,	explained	that	Dr.	Dyas	

had	not	provided	the	information	requested by	LINA	and	explained	that	:	

In	an	attempt	to	gather	additional	documentation	from	Dr.	Dyas,	our	

Nurse	Case	Manager	contacted	Dr.	Dyas	office	on	November	21,	2007	for	

clarification	of	his	findings	as	they	relate	to	your	restrictions.		On	

November	26,	2007,	we	also	contacted	Dr.	Dyas	office	and	requested	his	

objective	findings	to	support	his	restrictions	and	limitations.	To	date,	Dr.	

Dyas	has	not	responded	to	either	request.	

(Doc.	112-2,	p.	175).	

This	statement	was	sufficient	to	put	Melech	on	notice	that	Dr.	Dyas	needed	to	clarify

and	support	his	findings	as	they	related	to	her	restrictions	and	limitations but he	had	not	

done	so.		Also,	in	the	“Appeal	Rights”	section	of	the denial	letter,	Melech was	informed	as	

follows:

Appeal	Rights	

If	you	disagree	with	our	determination	and	intend to	appeal	this	claim	

decision,	you	must	submit	a	written	appeal		.	.	.	

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You	have	the	right	to	submit	written	comments	as	well	as	any	new	

documentation	you	wish	us	to	consider.		If	you	have	additional	

information,	it	must	also	be	sent	for	further	review	.	.	.	.	

We	would	be	happy	to	consider	any	medical	evidence	which	supports	

your	total	disability.		Medical	evidence	includes,	but	is	not	limited	to:	

physician’s	office	notes,	hospital	records,	consultation	reports,	test	result	

reports,	therapy	notes,	physical	and/or	mental	limitations	(i.e.,	Functional	

Capacities	Testing),	etc.		These	medical	records	should	cover	the	period	of	

May	2007	through	the	present.

(Doc.	112-2,	p.	175).	

The	last	paragraph	plainly	sets	out	the	type	of	medical	evidence	Melech	could

provide to LINA	including	a	specific	reference	to	“physical	and/or	mental	limitations”	and		

“Functional	Capacities	Testing” which	may	support	her	claim	of	“total	disability”.		Id.

Overall,	Melech	was	given	sufficient	notice	as	to	the	type	of	medical	evidence	she	could	

submit	and	why	it	was	necessary,	i.e.,	to	show	that	she	was	disabled.	

Melech	next	argues	that	LINA	violated	29	C.F.R.	§	2560.503(h)(2)(iv)	because	it	

failed	to	“take	into	account”	all	the	information	she	submitted for	her	first	and	second	

appeals.			Melech	states	that	LINA’s	nurse	case	manager’s	review	on	appeal	took	two	

minutes	and	therefore,	was	not	a	meaningful	review.	7 LINA	responds	that it	did	not	fail	to	

take	into	account	Melech’s	submissions.		

Title	29	C.F.R	§	2560.503-1(h)	provides	for	the	“[A]ppeal	of	adverse	benefit	

determinations.”		Paragraph	(h)(2)(iv)	states,	in	relevant	part	as	follows:		

																																																							 7		The	Court	finds	no	merit	to	the	argument	that	LINA’s	Claims	Manager	conducted	a	two	

minute	review	on	April	17,	2008,	before	denying	the	appeal.		Melech	acknowledges	that	the	

appeal	was	assigned	on	April	15,	2008,	and	that	the	decision	was	made	on	April	17,	2008,	

but	she	overlooks	the	date	“April	16,	2008”	in	this	“Appeal	Process”	summary	which	clearly	

shows	review	taking	place	on	April	16,	2008.		Also,	it	is	apparent	that	the	time	entry	is	

when	the	record	was	created.		(Doc.	112-2,	17)	(“Medical	Investigation	Results	4/16/08	

review	of	med	w/NCM	MJ	Kelly	.	.	.”).	

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(2)	Full	and	fair	review.	Except	as	provided	in	paragraphs	(h)(3)	and	

(h)(4)	of	this	section,	the	claims	procedures	of	a	plan	will	not	be	deemed	

to	provide	a	claimant	with	a	reasonable	opportunity	for	a	full	and	fair	

review	of	a	claim	and	adverse	benefit	determination	unless	the	claims	

procedures—

(iv)	Provide for	a	review	that	takes	into	account	all	comments,	

documents,	records,	and	other	information	submitted	by	the	claimant	

relating	to	the	claim,	without	regard	to	whether	such	information	was	

submitted	or	considered	in	the	initial	benefit	determination.

29	C.F.R	§	2560.503-1(h)(2)(iv).		

Review	of	the	record	indicates	that	there	is	insufficient	evidence	to	sustain	a	finding	

that	LINA	failed	to	provide a	full	and	fair	review.		The	comments	and	notes	by	the	claims	

managers	and	the	nurse	case	managers provide	sufficient	documentation	that	LINA	

adequately	took	into	account	the	information	submitted	by	Melech in	support	of	her	

appeal.

B.		Was	LINA’s	decision	de	novo	wrong?

The	parties	do	not	dispute	that	LINA	is	vested	with	discretionary	authority	to	

determine	eligibility	for	benefits.	(Doc.	112-2,	p.	125,	Policy).			Therefore,	the	Court	begins	

with	a	de	novo review	of	LINA’s	decision	based	on	the	evidence	before	LINA	as	found	in	the	

administrative	record.	 (See supra	at	note	1)

Defendants	argue	that	LINA	correctly	decided	that	Melech	was	not	disabled	because	

the	Administrative	Record	did not	contain	medical	evidence	of	disability	which	would	

preclude	Melech	from	performing	the	material	duties	of	her	light	duty	occupation.	

Specifically,	defendants	point to	the	fact	that there	is	no	objective	medical	evidence	to	

support	Dr.	Dyas’	opinion	that	Melech	was	totally	disabled.8		Defendants	also	argue	that	

																																																							 8		In	addition	to	the	medical	records	from	Dr.	Dyas	which	contain	his	unsupported	opinion,	

defendants	point	out	that	there	was	no	referral	for	pain	management,	no	evidence	of	

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Melech’s	mental	health	treatment	records	did not	indicate	that	she was	unable	to	work	

because	of	a	mental	impairment.

The	Court	has	reviewed	the	medical	evidence	before	LINA,	and	finds	that	the	

decision	was	de	novo correct.		 Therefore,	the	Court	need	not	ascertain	whether	the	

decision	was	arbitrary	and	capricious.		Brown	v.	Blue	Cross	&	Blue	Shield	of	Alabama,	898	

F.2d	1556,	1566	n.	12	(11th	Cir.1990)	(“It	is	fundamental	that	the	fiduciary's	interpretation	

first	must	be	‘wrong’	from	the	perspective	of	de	novo	review	before	a	reviewing	court	is	

concerned	with	the	self-interest	of	the	fiduciary.”)	

As	to	clinical	tests	to	support	Melech’s	disability,	on	May	18,	2007,	Dr.	Engerson	

obtained	an	x-ray of	Melech’s	cervical	spine	and	found	“significant	cervical	(degenerative	

disc	disease)	at	the	5-6	and	6-7	with	some	good	sized	osteophyties.	Loss	of	the	normal

cervical	lordosis	associated	with	spasm”	(Doc.	112-2,	p.		237).9 On	June	12,	2007,	a	cervical	

MRI	was	taken.	 The	radiologist	noted	his	impression	that	there	was	now	normal	alignment	

of	the	cervical	spine	and	that	Melech’s	cervical	degenerative	disk	disease	was	mild	or	

moderate.	 (Doc.	112-2,	p.	339).		A	year	later,	on	May	23,	2008,	Melech’s	cervical	MRI	was	

interpreted	as	showing	mild	or	moderate	cervical	degenerative	disc	changes	and	mild	

central	stenosis.	(Doc.	112-2,	p.	143).

While	Dr.	Engerson	interpreted	the	initial	X-Ray	as	showing	significant	cervical	

degenerative	disc	disease	with	loss	of	normal	cervical	lordosis,	the MRIs taken	June	12,	

2007	and	May	23,	2008,	were	interpreted	to	show	only	mild	or moderate	cervical	disc	

																																																																																																																																																																																		

medication	interfering	with	Melech’s	cognitive	or	functional	abilities,	and	no	evidence	that	

she	was	referred	for	surgical	evaluation.

9		Although	the	physical	therapy	notes	are	largely	unreadable,	one	of	the	initial	therapy	

goals	was	to	improve	Melech’s	“cervical	stability	posture”.		Limited	range	of	motion	and	fair	

strength	in	the	cervical	spine	were	noted.		(Doc.	112-2,	p.		266-267)	

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disease	with	normal	cervical	alignment. Dr.	Dyas’	opinion	that	Melech	was	totally	disabled	

from	her	light	work	occupation	was	not	supported	by	these tests	without	some	explanation	

of	how	the	disease	affected	her	functional	abilities.

As	to	Melech’s	right	shoulder,	there	appears to	have	been	only	one	test in	LINA’s	

records:	an	MRI	taken	May	23,	2008.		The	MRI	was	interpreted	as	ruling	out	a	rotator	cuff	

tear	but	showing tendinitis	or	tendinopathy	with	“mild	osteoarthritic	spurring	neighboring	

the	AC	joint	with	peri-articular	edema.”	(Doc.	112-2,	p.	143).	 Dr.	Dyas’	opinion	that	Melech	

could	not	work	because	of	a	torn	rotator	cuff	was	not	supported	by	this	test.	

As	to	Melech’s	lumbar	disc	disease,	the	only	clinical	test	is	discussed	in	the	January	

3,	2008	letter	Dr.	Dyas	wrote	LINA.		He	stated	that	Melech’s	x-ray	showed	“degenerative	

changes	at	L4-5	and	L5-S1”. (Doc.	112-2,	p.	169).	 “Changes”	do	not	support	a	finding	of	

total	disability from	light	work.	

As	to	functional	limitations	identified	by	the	examining	physicians:10 On	May	10,	

2007,	Dr.	Dyas	took Melech	off	work	for	two	weeks	and	referred	her	for	physical	therapy.	

(Doc.	112-2,	p.	339).			On	May	18,	2007,	Dr.	Engerson	found	full	range	of	motion	of	Melech’s	

right	shoulder	with	“mild	impingement	signs”,	and	“some	pain	with	resisted	abduction	and	

forward	elevation”.		He	also	found	that	Melech’s	“gross	motor	and	sensory	testing	upper	

extremities	basically	[within	normal	limits].”	 He	agreed	with	Dr.	Dyas’	treatment	plan.		

(Doc.	112-2,	p.	237).	 On	June	7,	2007,	Dr.	Dyas	noted that	Melech	was	“intact	

neurologically.”	(Doc.	112-2,	p	339).		On	September	13,	2007,	Dr.	Dyas	noted	that	Melech	

“still	can’t	work.”	(Doc.	112-2,	p.	339).		On	October	12,	2007, Dr. Miller found all “Joints 

																																																							 10 In	a	readable	section	of	their	notes,	the	physical	therapists	indicated	that	Melech’s	

cervical	mobility	and	pain	were	improving	although	she	was	still	stiff.		(Doc.	112-2,	p.	252).	

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show full range of motion” and that Melech’s neck was “Supple. No [jugular vein distension]. 

Nontender.” (Doc. 112-2, p. 193).11

On January 3, 2008, in Dr. Dyas’ letter to LINA, he stated: “Physical findings associated 

with [cervical spondylosis at C5-6 and C6-7] are limited neck movement by 50%”. He also 

explained incorrectly that Melech “has a rotator cuff tear in her right shoulder which is 

chronically and intermittently painful to activity”. As to her lumbar spine, he identified “chronic 

low back pain with stiffness.” Again, Melech’s neurological exam was normal. (Doc. 112-2, p. 

169). On May 22,	2008,	Dr.	Dyas	noted that	Melech	was	“intact	neurologically”	but	had

“some	soreness,	pain	and	weakness	in	her	right	shoulder.”	(Doc.	112-2,	p.	144).		

Despite	Dr.	Dyas’	opinion	that	Melech	was	permanently	and	totally	disabled,	the	

only	findings	which	could	reasonably	be	interpreted	as	functional	limitations are Dr.	

Engerson	finding	of	“mild impingement	signs”	and	“some pain	with	resisted	abduction	and	

forward	elevation”	in	Melech’s right	shoulder	(May	18,	2007);	 Dr.	Dyas’	finding	of “some	

soreness,	pain	and	weakness”	in	Melech’s right	shoulder	(May	22,	2008);	and Dr.	Dyas’	

finding	of	 “stiffness” in	the	lumbar	spine,	a 50%	limitation	on	neck	movement and	pain	in	

Melech’s	right	shoulder	related	to	activity	(January	3,	2008).		Dr.	Dyas’	limitations	contrast	

with Dr.	Engerson’s	finding	of	a	full	range	of	motion	in	all	upper	extremities	and	Dr.	Miller’s	

finding	of	full	range	of	motion	in	all	joints	and	supple	neck.			Also,	Dr.	Dyas’	finding	of	50%	

limitation	on	neck	movement	does	not	explain	how	that	renders	Melech	totally	and	

permanently	disabled or	unable	to	perform	her	job.	12 Therefore,	the	decision	to	deny	

																																																							 11		The	Court	acknowledges	that	Dr.	Miller	is	not	an	orthopedic	physician.	

12		Dr.	Dyas’	opinion	appears	to	be	based	on	two	different	work	descriptions	– First,	he	

stated	that	Melech	worked	at	a	computer	50	hours	per week	(Doc.	112-2,	p.	339).		Later	he	

explained	that	she	“worked	rotating	shifts	requiring	long	hours	standing	and	walking	in	the	

parking	lot	and	cleaning	automobiles,	vacuuming	the	automobiles.”		(Doc.	112-2,	p.	169).			

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Melech’s	claim	for	long	term	disability	benefits	is	not	de	novo wrong because	Melech	failed	

to	sustain	her	burden	to	show	she	could	not,	because	of	functional	limitations,	perform	her	

job	as	it	is	normally	performed	in	the	general	labor	market.	

IV.	Conclusion	

In	accordance	with	the	foregoing,	defendants’	motion	for	summary	judgment	is	

GRANTED.

DONE	and	ORDERED	this	the	18th day	of	September, 2012.

s/	Kristi	K.	DuBose		

KRISTI	K.	DuBOSE

STATES	DISTRICT	JUDGE

																																																																																																																																																																																		

Melech	described	her	“Major	Duties” as	“Doing	reports,	handling	customers,	renting	cars,	

making	schedules	for	employees,	safety	issues”.	(Doc.	112-2,	p.	186).		She	described	her

“Minor	Duties”	as	“Moving	cars,	cleaning	&	vacuuming	cars,	preparing	cars	where	

necessary;	inventory.”		(Id).		She	used	a	computer,	copy	machine,	fax, and	a	vacuum.	(Id.)	

Thus,	it	appears	that	she	did	not	work	50	hours	per	week	at	the	computer	and	did	not	

spend	“long	hours	standing	and	walking	in	the	parking	lot”	or	cleaning	and	vacuuming	cars.		

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