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Botello v. AT&T Umbrella Benefit Plan No. 3

United States District Court, W.D. Texas, San Antonio Division

June 27, 2019

CHRISTINE BOTELLO, Plaintiff,
v.
AT&T UMBRELLA BENEFIT PLAN NO. 3, Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.

         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns the cross-motions for summary judgment filed by Plaintiff Christine Botello and Defendant AT&T Umbrella Benefit Plan No. 3 (the “Plan”) in this denial-of-benefits case under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”). See Dkt. Nos. 22 & 23. The District Court referred the case pursuant to Western District of Texas Local Rule CV-72 and Appendix C. See Dkt. No. 27. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).

         For the reasons discussed below, the Plan's Motion, Dkt. No. 23, should be GRANTED, and Botello's motion, Dkt. No. 22, should be DENIED. The Plan did not abuse its discretion in discontinuing Botello's long-term disability benefits as of July 1, 2015, and substantial evidence supports that decision. The District Court, however, should deny the Plan's request for attorneys' fees and costs.

         I. Factual and Procedural Background

         Plaintiff Botello is a former Senior Project Manager-Network Management for an affiliate of SBC, Inc., where she earned $31.50 per hour. See ATT502; ATT1833. Previously Botello served as a Customer Sales Associate and then as an Area Manager-Network Management Operations. See ATT502; ATT1833. Botello stopped working in September 2002, alleging disability due to Major Depressive Disorder, Anxiety, Diabetes Mellitus, Carpal Tunnel Syndrome, Hyperlipidemia, Obesity, and Bipolar Disorder. See ATT1830; ATT205.

         As of approximately May 14, 2004, Botello qualified for and received long-term disability benefits under her employer's ERISA-qualifying disability-income program. See ATT24-25. As a result of developments not relevant here, the AT&T Disability Income Program came to have responsibility for the administration of Botello's benefits. The long-term disability benefits plan in effect when Botello's alleged disabling condition began was the SBC Disability Income Plan, and it remains the governing plan for present purposes and provides the relevant criteria addressing eligibility for benefits. See Siegel Decl. ¶ 4, Dkt. No. 32. According to the governing plan, a qualifying plan-participant employee, like Botello, can receive benefits if the individual is “Totally Disabled, ” which means that “because of Illness or Injury, an Employee is prevented from engaging in any employment for which the Employee is qualified or may reasonably become qualified based on education, training, or experience.” ATT5780. Employment which precludes an award of long-term disability benefits under the plan must pay at least 50% of the Employee's Basic Wage Rate at the time long-term disability benefits began. Id.

         Following her initial qualification for and receipt of long-term disability benefits, Botello periodically provided updates to the benefits administrator, Sedgwick Claims Management. As a result, she received multiple extensions of her benefits that extended them up through May 31, 2014. ATT130; ATT1450; Def. Mot. at 4; Pl. Resp. at 1.

         But in September 2014, Botello returned a disability questionnaire dated September 15, 2014 that indicated she may no longer meet the governing disability criteria. See ATT1895-ATT1898. So Sedgwick, as the benefits administrator, requested that Botello and her providers supply updated medical information. ATT134-35; ATT1455-56.

         In response, Botello's treating psychiatrist Dr. David G. Johnson completed a Mental Health Provider Statement in which he diagnosed her with Major Depression Recurrent, Severe and Anxiety. ATT1881-82. Although Dr. Johnson opined that Botello's memory and ability to concentrate were impaired, he did not provide any observed evidence of the impairment. Instead, Dr. Johnson wrote: “working with 3 grandchildren.” See Id. Dr. Johnson also did not describe Botello's day-to-day functioning, as had been requested by Sedgwick. Nor did he address whether she needed assistance to complete any activities of daily living.

         After reviewing Dr. Johnson's Statement, along with Botello's September 2014 questionnaire providing her reported activities of daily living, Sedgewick referred the claim to independent physician-examiner psychiatrist Dr. Reginald A. Givens for review. See ATT1877-79. After reviewing Botello's medical records, Dr. Givens found “insufficient objective observable evidence to support [Botello's] cognitive impairment or impairment in activities of daily living to a degree that would impair [Botello] from performing occupational duties.” ATT1877. Shortly thereafter, on November 4, 2014, Dr. Johnson and Dr. Fleishman, a representative of Dr. Givens, spoke regarding Botello's mental capacity. See ATT1870. During this teleconference, Dr. Johnson reported that he had seen Botello on August 20, 2013, January of 2014, May of 2014, and again on September 22, 2014. See Id. During the last visit, Dr. Johnson noted Botello was “very anxious and depressed, had lack of focus, poor concentration, and was feeling hopeless and helpless.” See Id. Botello “felt paralyzed and was very disorganized in her thinking and confused and had what sounded like a manic episode.” Id. At the same time, Dr. Johnson projected that Botello should be able to return to work in a month. See Id. Accordingly, this teleconference did not change Dr. Givens's opinion.

         Sedwick thereafter referred Botello for an independent medical evaluation with psychiatrist Dr. Brian Skop. See ATT1845-57. After examining Botello and reviewing her previous psychiatric medical records, Dr. Skop diagnosed her with Major Depressive Disorder, recurrent moderate; Posttraumatic Stress Disorder; and Unspecified Personality Disorder. Although previous providers had diagnosed Botello with bipolar disorder, Dr. Skop found that “the manic like symptoms [Botello] has are brief in duration and do not meet the criteria for a hypomanic episode which is necessary for a diagnosis of bipolar disorder.” ATT1853-54. Such “brief mood swings, ” Dr. Skop found, “are usually more indicative of a personality disorder.” Id. Ultimately, Dr. Skop placed Botello's limitation “in the mild to moderate range based on affective instability, mild derailment of her thoughts and possibly some mild reduction in her grooming.” ATT1856.

         Dr. Skop found Botello's Global Assessment Functioning to exceed 40, which contrasted with Dr. Johnson's previous assessment. In reaching this conclusion, Dr. Skop noted that Botello “generally takes care of most activities of daily living. She socializes with some friends. She goes to church. She cares for three grandchildren, and she does some volunteer work. While this is intermittent, per her self-report, it does involve coordinating activities, interpersonal skills and some computer skills.” Id. Although Dr. Skop did not believe Botello could return to her previous employment “as the demands of that job in conjunction with the current stressors she is under would probably exacerbate her anxiety and mood complaints, ” he opined that Botello could probably perform some “limited employment” that did not have the job demands of “interpersonally demanding work or work that would necessitate long hours and travel, ” as those types of demands “would likely exacerbate her condition.” Id. Dr. Skop, however, observed that Botello “did not appear to be invested [in] returning to work but more so in caring for her grandchildren.” Id. Finally, Dr. Skop noted that “per [Botello's] self-report, her ability to maintain pace at work in a consistent manner may be impaired, ” although Dr. Skop recognized that this was “difficult to measure” during an examination. Id.

         When asked to clarify what he meant by work “not demanding interpersonally, ” Dr. Skop explained that “the demands of supervisory work would likely aggravate [Botello's] anxiety and depression but that she could perform lower level jobs.” ATT1841-2. Despite having the chronic conditions of major depressive disorder, posttraumatic stress disorder, and personality disorder, Dr. Skop observed that Botello “adequately” performed the “less demanding job of customer service representative” at a level where she was promoted. Id. And Dr. Skop clarified that when he opined that Botello should not work long hours, he was referring “primarily [to] the stress that extensive travel placed on [Botello] when she was traveling a lot as part of her supervisory position. This was the position she was in when she went on disability, and she described working long hours (10 hour days) and extensive travel.” Id. Dr. Skop noted that Botello performed adequately and at a level where she was promoted when performing a lower level job with more regular hours i.e.. 8 hour days. Id. Restricting Botello's work in such a manner would, in Dr. Skop's view, account for any impairment she might have in maintaining pace. Id. Given her lengthy absence from work, however, Dr. Skop observed that Botello “might benefit from part-time days (4 hour days) and frequent breaks (approximately a break every hour) for a few weeks (approximately 4 weeks) to readjust to the work setting.” Id.

         After reviewing Dr. Skop's report, Sedgwick determined that Botello's case should be reviewed by its Vocational Specialist to evaluate whether there were appropriate employment opportunities for Botello in her area and in light of the restrictions provided by Dr. Skop. See ATT1475. Although Sedwick believed the evaluation would likely reveal appropriate employment opportunities for Botello, it decided to re-evaluate Botello's claim once those opportunities were identified, given the possibility that Botello might seek and obtain additional treatment with a current or new provider. See id.

         On May 29, 2015, Job Accommodation Specialist Courtney Janchenko MA, CRC performed a Transferrable Skills Assessment in which she assessed Botello's work-related abilities. ATT1823-26. Taking into account the restrictions imposed by Dr. Skop-no supervisory responsibility, no travel, and no work over 8 hours-along with Botello's education and skills acquired from her prior work, Janchenko identified the following sedentary alternative occupations Botello could perform: (1) Credit Analyst, Dictionary of Occupational Titles (“DOT”) #160.267-022 with a median wage of $25.74; (2) Personnel Clerk, DOT #209.362-026 with a median wage of $18.07; (3) Audit Clerk, DOT #210.382-010 with a median wage of $17.20; and (4) Service Clerk, DOT #221.367-070 with a median wage of $17.41. See Id. All of these positions were at least 50% of Botello's Basic Wage Rate at the time her alleged disability began. See id.

         Following this assessment, Sedgwick determined that Botello's long-term disability benefits should be discontinued. See ATT162; ATT1482. On July 9, 2015, Sedgwick advised Botello via letter of her claim denial, effective July 1, 2015. The letter detailed the reasons for the denial decision and advised Botello of her rights to appeal. See ATT1808-15. Specifically, Sedgwick noted that based on all documentation available there is no observable clinical evidence substantiating Botello's claims that she is limited in her day-to-day functioning as a consequence of a psychiatric condition. See id. In addition, Sedgwick noted that Botello's reported activities of daily living, including volunteer work, supported its decision. See Id. Finally, Sedgwick noted that the Social Security Administration's determination that Botello was disabled did not affect its decision. See Id. While Sedgwick took this ...


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