Pellicano v. The Office of Personnel Management

1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SUSAN PELLICANO, SUCCESSOR 	:
IN INTEREST TO 	:
MICHAEL PELLICANO, 	: 	CIVIL NO. 3:17-CV-698
:
Plaintiff, 	: 	(Judge Mannion)
:
v. 	:
: 	(Magistrate Judge Carlson)
THE OFFICE OF PERSONNEL 	:
MANAGEMENT, et al., 	:
:
Defendants. 	:
REPORT AND RECOMMENDATION
I. 	Introduction and Procedural History
This case, which comes before us for consideration of cross motions for
summary judgment, (Docs. 110, 120), represents the latest chapter in a decade-long
legal saga involving a quadriplegic, disabled former federal employee, Michael
Pellicano, and the Office of Personnel Management (OPM), the federal agency which
made health care benefit reimbursement decisions relating to some of Pellicano’s
medical expenses. Pellicano’s disputes with OPM concerning that agency’s decisions
regarding his medical needs have inspired a host of lawsuits over the past ten years.
See e.g., Pellicano v. Off. of Pers. Mgmt., No. 21-1472, 2022 WL 621692, at *1 (3d
Cir. Mar. 3, 2022); Pellicano v. Off. of Pers. Mgmt., 714 F. App'x 162 (3d Cir. 2017);
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Pellicano v. Off. of Pers. Mgmt., No. 3:17-CV-00698, 2018 WL 771362, at *1 (M.D.
Pa. Jan. 19, 2018), report and recommendation adopted, No. CV 3:17-0698, 2018
WL 798172 (M.D. Pa. Feb. 9, 2018); Pellicano v. Off. of Pers. Mgmt., Ins.
Operations, 8 F. Supp. 3d 618, 620 (M.D. Pa. 2014), aff'd sub nom. Pellicano v. Off.
of Pers. Mgmt., 714 F. App'x 162 (3d Cir. 2017); Pellicano v. Off. of Pers. Mgmt.,
Ins. Operations, No. 3:11-CV-405, 2011 WL 7665934, at *2 (M.D. Pa. Dec. 13,
2011), report and recommendation adopted, No. CIV.A. 11-405, 2012 WL 1243226
(M.D. Pa. Apr. 12, 2012).
These longstanding disputes provide a sobering glimpse into the vagaries of
our modern health care bureaucracy. Thus, the defendant has refused for years to
recognize the medical necessity of a shower chair for this severely impaired
quadriplegic despite a treating source consensus that such equipment is called for
given the severity of Pellicano’s permanent disability, extensive treatment records
supporting that opinion, and the fact that such equipment had previously been deemed
both medically necessary and covered by Pellicano’s prior insurance. Moreover,
Pellicano’s case illustrates how a bureaucratic decision, once made, becomes
immutable. Indeed, it is telling that this litigation has actually outlived Mr. Pellicano,
who passed away still trying to obtain some measure of satisfaction from his health
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insurer over the seemingly straightforward issue of obtaining a shower chair that
would facilitate performing essential bodily functions.1
Today we write what we hope will be the final chapter in this longstanding
litigation. Through the process of this litigation the issues and claims that presently
divide Pellicano and OPM have been narrowed substantially. Thus, currently this
case comes before us on remand from the court of appeals for consideration of a
single pending medical claim, Mr. Pellicano’s request for a shower chair to replace a
previously approved article of durable medical equipment that he had used. As to this
issue, the Third Circuit’s court ruling which remanded this case defines and describes
the scope of our review and guides us in the consideration of this claim.
In its opinion remanding this case for further consideration, the court of appeals
explained that:
Pellicano is a retired federal employee who was disabled after suffering
a spinal cord injury and is a quadriplegic. In this 2017 lawsuit, he
challenged 	five 	different 	OPM 	decisions 	upholding 	coverage
determinations 	by 	his 	insurer, the 	National 	Association 	of Letter
Carriers (NALC) Health Benefit Plan, which is covered by the Federal
Employee Health Benefit Act (FEHBA), 5 U.S.C. § 8901, et seq.
Pellicano, 2022 WL 621692, at *1.
1 Mr. Pellicano’s widow has been substituted as a party-plaintiff in this case. (Doc.
124).
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While Pellicano’s lawsuit originally challenged five OPM medical coverage
determinations, “[o]n appeal, Pellicano raise[d] arguments in his briefs about just one
of them: OPM's claim numbered Y16063002, a pre-authorization request for a
replacement Shower Commode Chair.” Id. As to this single item, the parties’
competing positions were aptly summarized by the court of appeals in the following
terms:
According to Pellicano, his Shower Commode Chair is an utterly
necessary piece of specialized medical equipment that permits him to
complete a complex and lengthy daily bowel ritual with the assistance
of a caregiver. He notes that a previous insurer approved reimbursement
for his original purchase of such a device in 2003. In 2014, Pellicano
applied to NALC for reimbursement of replacement parts for his chair.
NALC 	approved 	partial 	reimbursement. 	In 	2015, 	he 	sought 	pre-
authorization for the purchase of a new chair. NALC denied the request,
determining that the chair was “not a covered item per our Durable
Medical Equipment benefits in our Health Benefit Plan brochure.” 3d
Cir. ECF No. 21-14 at 79. When Pellicano appealed the decision to
OPM, NALC argued that the chair was not medically necessary, was a
personal convenience item, and was not a covered DME under the Plan's
criteria in the brochure. Id. at 87-88. OPM issued a letter upholding the
decision. D. Ct. ECF No. 1-1 at 15.
Id.
While the district court initially granted summary judgment in favor of OPM
on this particular claim, the court of appeals remanded Mr. Pellicano’s case for
further consideration of this specific medical necessity determination by OPM,
finding that this agency “has held fast to what is, at best, a confusing explanation” of
its medical necessity decision with respect to this item. Id. at *3.
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Upon remand, we ordered this dispute referred to OPM for reexamination of
these medical necessity issues by that agency. (Doc. 95). We followed this course, at
OPM’s request, in order for that agency to reevaluate and reassess the denial of this
medical equipment to Mr. Pellicano, whose struggles as a quadriplegic were well
documented. Despite affording OPM the opportunity to reconsider its decision, that
agency elected to adhere to the view that as to this profoundly handicapped
individual: “A shower commode chair would be for the personal comfort or
convenience of the patient/caregiver,” and would not constitute a medical necessity.
(Doc. 101, at 967). OPM’s decision, and the complete administrative record which
led it to conclude that this equipment was a mere “convenience”, have now been
submitted to the Court, and form the basis for our evaluation of this agency action.
(Id., passim).
II. 	Factual Background
The administrative record in this case reveals the following essential, and
undisputed facts:
In February of 2016, some ten years ago, Michael Pellicano provided OPM
with a cogent, concise explanation of the medical necessity for a shower commode
chair, stating that:
I am quadriplegic due to a spinal cord injury (SCI) and am totally
dependent for all care. Do [sic] to my SCI and diagnosis of neurogenic
bowel (see Enemeeze LMN), Dr. Lam of the Kessler Institute for
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Rehabilitation determined (see shower chair LMN) that I need to be
transferred into this rehab shower commode chair in order to perform
medically necessary daily bowel regimen. Dr. Lam instructed me that it
is imperative for my health to maintain this bowel regimen; otherwise,
serious 	complications 	can 	occur 	such 	as 	impaction 	resulting 	in
autonomic 	dysreflexia 	(sudden 	increased 	high 	blood 	pressure).
Impaction may also cause the bladder to burst. This daily bowel regimen
consists of a caregiver digitally stimulating my rectum, after which a
mini Enemeeze suppository is administered. I then have to be digitally
stimulated 1 to 2 more times in order to complete the bowel regimen,
after which I am showered to maintain proper hygiene. I must spend 1
to 1 1/2 hours in this chair daily in order to perform this regimen; it is
in no way a convenience.
My present rehab shower commode chair, which is 13 years old, is
becoming unsafe and needs to be replaced.
(Id. at 58) (emphasis in original).
Mr. Pellicano’s request, in turn, was endorsed by his treating physician, Dr.
Mylan Lam, who explained that Pellicano:
[S]ustained a spinal cord injury which rendered him quadriplegic and
dependent for all care of daily living. A shower commode chair is
necessary 	for both management of his daily bowel 	program and
showering.
(Id. at 70, 75-76). Thus, Mr. Pellicano’s treating source, who had the closest and most
detailed understanding of the severity of his condition, opined that a shower
commode chair was a medical necessity for this severely disabled man.
Dr. Lam’s opinion, in turn, was supported by more than 400 pages of treatment
notes submitted to OPM. (Id. at 78-772). These physical therapy treatment notes
spanned years and graphically described the profound degree of impairment suffered
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by Mr. Pellicano. According to these treatment records Mr. Pellicano often required
moderate to maximum assistance in any physical transfers from one position to
another. (Id. at 79, 83, 88, 91, 97, 101, 108, 112, 118, 122, 126, 130, 136, 141, 146,
149, 155, 534). His unaided dynamic short sitting balance, which was essential for
independent toileting, was consistently described as poor. (Id. at 79, 83, 91, 97, 101,
108, 112, 118, 122, 126, 130, 136, 141, 146, 149, 155, 164, 215, 379, 400, 411, 425,
440, 454, 466, 478, 491, 503, 519). He was assessed as unable to engage in static or
dynamic sitting without assistance. (Id. at 159, 195, 204, 379). Moreover, he was
deemed 100% disabled in terms of his activities of daily living, including notably
both bathing and toileting functions that the shower commode chair was designed to
facilitate. (Id. at 160, 161, 166, 197, 207, 217, 225, 235, 533, 552). He was described
a totally “dependent for all self care and mobility.” (Id. at 553).
Thus, the medical necessity of the shower commode chair sought by Mr.
Pellicano was amply supported by his own personal experience, by years of physical
therapy treatment records, and by the medical opinions of his treating physician.
Moreover, this device had previously been deemed medically necessary for Mr.
Pellicano by his prior insurer. Yet, notwithstanding this consistent and extensive body
of evidence, in its most recent denial of this claim of medical necessity, OPM chose
to reject this claim based upon the 2024 opinions of Dr. Katherine Herzog, a non-
treating, non-examining medical source. (Id. at 773-81).
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Dr. Herzog’s opinions are curious, cursory and contradictory. Initially on May
21, 2024, Dr. Herzog denied this claim of medical necessity in a wholly summary
fashion without any reasoned explanation beyond her insistence that the chair did not
fit the terms of a 2015 Plan Brochure. (Id. at 775). Perhaps recognizing the facial
insufficiency of this first opinion, on May 24, 2024, Dr. Herzog issued a second
medical opinion denying this claim of medical necessity. (Id. at 776-79). In this
second opinion Dr. Herzog provided some rationale for her decision, but that
rationale was internally inconsistent and did not support her conclusion that the
shower commode chair was a mere “convenience of patient/caregiver but is not
medically necessary.” (Id. at 778).
At the outset, in her opinion Dr. Herzog stated that a “clinical evaluation of a
commode/shower chair should be performed with a focus on the individual’s current
bowel care routine and transfer ability, goals of the individual and caregiver, and
individual functionality, including postural stability, reach, and skin integrity.” (Id.)
The import of this medical guidance which the doctor purported to rely upon was
clear: The greater the extent of disability, the higher the degree of medical necessity.
Yet having announced this guiding medical principle, the only evidence cited
by Dr. Herzog in her opinion denying this claim of medical necessity directly
supported the need for an assistive shower commode chair to aid Mr. Pellicano in
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performing these bodily functions. As Dr. Herzog observed the clinical evidence
showed that:
On 5/14/2003, short sitting was poor/fair minus for static and poor/poor
plus for dynamic. Additionally, transfers required MAXA (maximum
assistance) with transfer board. On 2/20/2004, rehabilitation noted that
patient was unable to perform static or dynamic sitting and at time of
occupational therapy discharge, 6/4/2004, he remained 1-2 person
dependent for transfers or MAXA of 2 people.
(Id.)
In fact, Dr. Herzog’s medical opinion suggested that she did not understand
the purpose of the shower commode chair. That device was designed and intended to
provide support and balance for Mr. Pellicano when bathing and toileting, since he
clearly was physically unable to maintain balance unassisted. Yet, Dr. Herzog
implied that this device, which would aid Mr. Pellicano in balancing, was not
necessary because “documentation does not [show] that the patient has the core
strength to safely sit in a commode/shower chair.” (Id.) Thus, Dr. Herzog’s opinion
seems to cite the very impairment that the chair is designed to address, an inability to
balance unaided, as the reason for denying this request. Based upon this apparently
paradoxical reasoning, Dr. Herzog concluded that: “A rehab shower commode chair
would be for the personal comfort or convenience of patient/caregiver but is not
medically necessary.” (Id.)
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Furthermore, this non-treating non-examining source opinion was remarkable
both for what it said and what it left unsaid. Thus, while Dr. Herzog acknowledged
the existence of Mr. Pellicano’s lengthy treatment history and conceded that his
treating physician opined that the commode chair was a medical necessity, Dr.
Herzog never discussed, addressed or considered this countervailing treating source
opinion in any meaningful way.
Nonethless, in its most recent decision denying this claim, OPM has discounted
Mr. 	Pellicano’s 	extensive 	treatment 	history 	and 	the 	medical 	opinion 	of 	his
longstanding treating physician. Instead, OPM adopted Dr. Herzog’s reasoning and
has elected to describe Mr. Pellicano’s request in the following terms: “A shower
commode 	chair 	would 	be 	for 	the 	personal 	comfort 	or 	convenience 	of 	the
patient/caregiver but is not medically necessary.” (Id. at 967).
It is against the backdrop of this medical, administrative record that the parties’
cross motions for summary judgment invite us to assess the rationality of this action
by OPM.
III. 	Discussion
A. Cross Motions for Summary Judgment: Standard of Review
The parties have filed cross motions for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure, which provides that the court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). Through summary adjudication, a court is empowered to dispose of those
claims that do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P.
56(a), and for which a trial would be “an empty and unnecessary formality.” Univac
Dental Co. v. Dentsply Int’l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The
substantive law identifies which facts are material, and “[o]nly disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient
evidentiary basis that would allow a reasonable fact finder to return a verdict for the
non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
that there is an absence of evidence to support the non-moving party’s claims, “the
non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden at trial,” summary judgment
is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the
non-moving party provides merely colorable, conclusory, or speculative evidence.
Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence
supporting the non-moving party and more than some metaphysical doubt as to the
material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all
evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey
City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing
to disputed material issues of fact must show by competent evidence that such factual
disputes exist. Further, “only evidence which is admissible at trial may be considered
in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers
Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne
cannot create an issue of fact merely by . . . denying averments . . . without producing
any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x
896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary
judgment is made and supported . . ., an adverse party may not rest upon mere
allegations or denial.” Fireman’s Ins. Co. of Newark New Jersey v. DuFresne, 676
F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697
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F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue
of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is
also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).
Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon
bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338,
341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or
assess credibility when passing upon a motion for summary judgment. Rather, in
adjudicating the motion, the court must view the evidence presented in the light most
favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable
inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc.
v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-
moving party’s evidence contradicts the movant’s, then the non-movant’s must be
taken as true. Id. Additionally, the court is not to decide whether the evidence
unquestionably favors one side or the other, or to make credibility determinations,
but instead must decide whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple
BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has
instructed that:
To raise a genuine issue of material fact . . . the opponent need not match,
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item for item, each piece of evidence proffered by the movant. In
practical terms, if the opponent has exceeded the “mere scintilla”
threshold and has offered a genuine issue of material fact, then the court
cannot credit the movant’s version of events against the opponent, even
if the quantity of the movant’s evidence far outweighs that of its
opponent. It thus remains the province of the fact finder to ascertain the
believability and weight of the evidence.
Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d
464, 476 (3d Cir. 2011).
In this case, we are presented with cross motions for summary judgment. In
this setting:
“When confronted with cross-motions for summary judgment ... ‘the
court must rule on each party's motion on an individual and separate
basis, determining, for each side, whether a judgment may be entered in
accordance with the summary judgment standard.’ ” Transguard Ins. Co.
of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D. Pa. 2006)
(quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed.Appx.
266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no
genuine issue of material fact, then judgment may be entered in favor of
the party deserving of judgment in light of the law and undisputed facts.”
Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.
1998)).
Pellicano v. Office of Pers. Mgmt., Ins. Operations, 8 F. Supp. 3d 618, 625–26 (M.D.
Pa. 2014), aff’d sub nom. Pellicano v. Office of Pers. Mgmt., 714 F. App'x 162 (3d
Cir. 2017).
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B. Guiding Principles, Judicial Review of Agency Decision-Making
In this case we are called upon to assess agency decision-making which denied
a piece of medical equipment which had previously been provided to a severely
compromised quadriplegic patient on the grounds that the equipment was a mere
“convenience” and was not medically necessary. On this score, the Third Circuit’s
opinion remanding this issue for further consideration defines for us the scope and
nature of our review. According to the court of appeals:
[A]s the case was brought under the Administrative Procedure Act
(APA), see 5 U.S.C. § 701 et seq., we will apply the appropriate standard
of review to the underlying agency decision. See Pa. Dep't of Human
Servs. v. United States, 897 F.3d 497, 504 (3d Cir. 2018). We will set
aside OPM's actions if they are “ ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law’ or [are] conducted
‘without observance of procedure required by law.’ ” Id. (quoting 5
U.S.C. § 706(2)(A) & (D)). Although the scope of our review is narrow
and deferential, we must confirm that the “agency [considered] the
relevant data and articulate[d] a satisfactory explanation for its action
including a rational connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).
Pellicano v. Off. of Pers. Mgmt., 2022 WL 621692, at *2.
In conducting this review, our analysis “is confined to the administrative
record that was before the agency.” Id. at *3. Additionally, “[w]e must ensure that,
‘in reaching its decision, the agency examined the relevant data and articulated a
satisfactory explanation for its action.’ ” Id. at *4 (quoting Prometheus Radio Project
v. FCC, 373 F.3d 372, 389–90 (3d Cir. 2004)).
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C. OPM’s Motion for Summary Judgment Should be Denied and
Pellicano’s Motion for Summary Judgment Should be Granted.
While we concede the deferential standard of review which applies in this
setting, it is clear beyond peradventure that in order for OPM to sustain this decision
it must show that it considered the relevant data and articulated a satisfactory
explanation for its action including a rational connection between the facts found and
the choice made. Pellicano v. Off. of Pers. Mgmt., 2022 WL 621692, at *2. In our
view, that logical bridge and satisfactory explanation for the agency’s decision to
deny the medical necessity of this shower commode chair for Mr. Pellicano is entirely
missing. Instead, we find—as the court of appeals previously noted—that OPM has
“held fast to what is, at best, a confusing explanation” for its decision to deny this
medical necessity claim. Id. at *3.
OPM’s latest decision lacks a rational underpinning on several scores. First,
that decision is largely dismissive of the extensive body of anecdotal, clinical and
treating source opinion evidence which consistently supported the medical necessity
of this shower commode chair for Mr. Pellicano, an individual who could not engage
in essential bodily functions unaided. Given OPM’s failure to adequately consider
this significant body of evidence, it simply cannot be said that in reaching its decision,
the agency properly examined the relevant data.
OPM’s latest decision then compounds this error by placing an unwarranted
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reliance upon the opinion of a non-treating, non-examining source, Dr. Herzog. In
our view, Dr. Herzog’s analysis is profoundly flawed. The doctor announces a
guiding medical principle which emphasizes that medical necessity is linked to the
severity of Mr. Pellicano’s symptoms but then neglects to apply this guiding tenet to
the facts. Instead, Dr. Herzog cites evidence which supports the medical necessity of
this shower chair as grounds for denying this claim of medical necessity. Dr. Herzog
further ignores and fails to address the treating source opinions supporting this claim
of medical necessity. By failing to follow her own medical guidance, citing evidence
which contradicts her conclusion that the shower chair was a mere “convenience” as
support for this conclusion, and failing to address countervailing medical opinions,
Dr. Herzog’s opinion has attributes of arbitrariness which OPM has failed to
recognize. Therefore, that opinion—which is the lynchpin of the OPM decision—
cannot withstand scrutiny and fails as a matter of law to support this agency action.
Simply put on the current record the decision to characterize this shower chair as a
mere convenience for Mr. Pellicano, a quadriplegic, is arbitrary, capricious and an
abuse of discretion. Accordingly, OPM’s motion for summary judgment should be
denied, and Mrs. Pellicano’s motion on behalf of her late husband should be granted.2
2 One final observation may be fitting here. For the past ten years the defendant has
resisted efforts to deem this piece of equipment medically necessary for Mr.
Pellicano, who endured profound paralysis for decades. OPM adhered to this
position, even though an earlier insurer had conceded the necessity of this equipment;
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IV. 	Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the defendant’s
motion for summary judgment, (Doc. 110), be DENIED and the plaintiff’s motion
for summary judgment, (Doc. 120), be GRANTED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within fourteen
(14) days after being served with a copy thereof. Such party shall file
with the clerk of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the portions of the
proposed findings, recommendations or report to which objection is
made and the basis for such objections. The briefing requirements set
forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified 	proposed
findings or recommendations to which objection is made and may
accept, 	reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings 	or
recommendations made by the magistrate judge. The judge, however,
need conduct a new hearing only in his or her discretion or where
required by law, and may consider the record developed before the
magistrate judge, making his or her own determination on the basis of
that 	record. 	The 	judge 	may 	also 	receive 	further 	evidence, 	recall
witnesses, 	or 	recommit 	the 	matter 	to 	the 	magistrate 	judge 	with
instructions.
Mr. Pellicano’s treating physician opined that it was medically necessary; and
physical therapy records confirmed the need for this equipment to aid Mr. Pellicano
in performing basic bodily functions. Yet, every court which has considered OPM’s
position has found that the agency holds fast to what is at best a confusing explanation
for the decision to describe this equipment as a mere convenience rather than a
medical necessity. While OPM of course retains all of its litigative prerogatives, it
may be fitting at this junction to pause and reflect on the implications of its actions.
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Submitted this 9 th day of January 2026.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Case 3:17-cv-00698-MEM Document 125 Filed 01/09/26 Page 19 of 19