Lehnen, Kent v. Unum Life Insurance Co

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KENT A. LEHNEN,
Plaintiff, OPINION AND ORDER
v.
23-cv-192-wmc
UNUM LIFE INSURANCE CO.,
Defendant.
While defendant Unum Life Insurance Co. (“Unum”) granted plaintiff Kent A.
Lehnen long-term disability benefits for a mental health condition on a limited basis from
April 2020 through July 2022, he filed this lawsuit claiming wrongful denial of additional
LTD benefits in violation of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq., based on physical disabilities that allegedly prevent
him from working. (Dkt. #1.) Unum argues that these benefits were properly denied and
filed a counterclaim against Lehnen to recover an alleged overpayment of benefits after he
was found physically disabled by the Social Security Administration (“SSA”) and granted
Social Security Disability Insurance (“SSDI”) benefits retroactive to April 2020. (Dkt.
#11.)
Pending before the court are the parties’ cross-motions for judgment on the
administrative record under Federal Rule of Civil Procedure 52(a). (Dkts. #16, #21.) For
the reasons explained below, the court concludes that plaintiff Lehnen is entitled to
additional benefits dating back to July 2022 in light of overwhelming evidence of his
physical disabilities to perform material and substantial duties of his regular occupation as
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a crisis manager for client’s employees, but that Unum is also entitled to recover any
overpayment that resulted from his receipt of SSDI benefits for those same disabilities.
“Congress enacted ERISA to ‘protect . . . the interests of participants in employee
benefit plans and their beneficiaries’ by setting out substantive regulatory requirements for
employee benefit plans and to ‘provid[e] for appropriate remedies, sanctions, and ready
access to the Federal courts.’” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004)
(quoting 29 U.S.C. § 1001(b)). To that end, ERISA’s “comprehensive legislative scheme”
includes “an integrated system of procedures for enforcement.” Id. (internal quotation
marks omitted). In particular in this case, ERISA ultimately authorizes a participant or
beneficiary to bring a civil action in federal court “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
When a participant challenges the administrative denial of benefits under a policy
or benefit plan governed by ERISA, as here, the court begins by determining the
appropriate standard of review. Generally, a denial of ERISA benefits must be reviewed
under a de novo standard unless the plan has given the plan administrator (or other
fiduciary) the discretionary authority to determine eligibility for benefits and to construe
the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); accord
Oye v. Hartford Life & Accident Ins. Co., 140 F.4th 833, 836-37 (7th Cir. 2025). Where the
plan gives the plan administrator discretion to construe policy terms, and the decision to
deny coverage is based on an interpretation of the plan, courts apply “an arbitrary and
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capricious standard of review.” Sellers v. Zurich Amer. Ins. Co., 627 F.3d 627, 631 (7th Cir.
2010).
Here, it is undisputed by the parties that the benefit plan at issue does not grant
discretionary authority to Unum as the plan’s administrator. (Def. Response to Pl.
Proposed Findings of Fact (“PFOF”) (dkt. #30) ¶ 15.) Accordingly, the de novo standard
of review applies to Lehnen’s claim that he was wrongfully denied LTD benefits. Sellers,
627 F.3d at 631 (“Where either the plan grants no such discretion, or the denial of benefits
determination is based on an interpretation of law, [courts] apply a de novo standard of
review.”).
Just as it sounds, under this standard, the court must make “an independent
decision about the employee’s entitlement to benefits,” making its own decisions “on both
the legal and factual issues that form the basis of the claim” without any deference to the
plan administrator’s decision. Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th
Cir. 2007). In other words, “[w]hat happened before the Plan administrator or ERISA
fiduciary is irrelevant.” Id. To prevail, therefore, Lehnen “bears the burden of proving not
that the plan administrator erred, but that [he] is entitled to the benefits [he] seeks.” Dorris
v. Unum Life Ins. Co. of Amer., 949 F.3d 297, 299 (7th Cir. 2020). More specifically, the
plaintiff must prove by a preponderance of the evidence that he is entitled benefits under
the terms of the plan.1 Krueger v. Reliance Standard Life Ins. Co., 772 F. Supp. 3d 893, 903
(N.D. Ill. 2025).
1 Plaintiff Lehnen also asks the court to consider as part of its analysis a Regulatory Settlement
Agreement (“RSA”) involving Unum and various state departments of insurance as the result of a
multi-state lawsuit involving its claims handling procedures. (Dkt. #15-7, at 31 (AR-001824).)
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Here, both parties have moved for judgment on the administrative record under
Federal Rule of Civil Procedure 52(a), which allows a district court “to resolve the dispute
without a formal trial by making findings of fact and conclusions of law based on the
administrative record.” Oye, 140 F.4th at 836; see also Hess v. Hartford Life & Accident Ins.
Co., 274 F.3d 456, 461 (7th Cir. 2001) (Proceedings under Rule 52(a) in an ERISA case
are “more akin to a bench trial than to a summary judgment ruling.”). “This procedure is
essentially a trial on the papers,” and it “is well-suited to ERISA cases in which the court
reviews a closed record.” Fontaine v. Metro. Life Ins. Co., 800 F.3d 883, 885 (7th Cir. 2015)
(internal citation omitted). Under Rule 52(a), this court must “find the facts specially and
state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). Because of the
voluminous medical evidence in the administrative record, the court devotes a substantial
portion of this Opinion to outlining those facts, before addressing the current procedural
posture and conclusions of law.
Under the RSA, Unum must give “significant weight” to opinions by an attending physician and
awards of disability benefits by the SSA. (Dkt. #15-5, at 286 (AR-001503); Dkt. #15-7, at 14
(AR-001807).) Under de novo review, however, Unum argues that the RSA is legally irrelevant
because the court independently determines whether Lehnen satisfies the Plan’s coverage
requirements without regard for either Unum’s initial decision or its claims procedures. (Def.
Response to Pl. Findings (dkt. #30) ¶¶ 16-27.) Because review is de novo, the court agrees that the
RSA is not relevant here, although it would be if the arbitrary and capricious standard applied. See
Freeland v. Unum Life Ins. Co. of Amer., No. 11-cv-053-wmc, 2013 WL 4482995, at *2 (W.D. Wis.
Aug. 19, 2013) (discussing Unum’s duties under the RSA in an ERISA case decided under an
“arbitrary and capricious” or ”abuse of discretion” standard where the benefit plan gave the
administrator discretion over benefits decisions).
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FINDINGS OF FACT2
A. Lehnen’s Employment and Medical History
Lehnen is a resident of Hudson, Wisconsin. He began working for Beacon Health
Options in 2011. Beacon provides Employee Assistance Program (“EAP”) services,
including crisis intervention or crisis management to its clients and their employees. (Pl.
Compl. (dkt. #1) ¶ 17.) As “Senior Account Executive” for Beacon, Lehnen worked
exclusively from home. (Id. at ¶¶ 18, 20.) His client base consisted of Fortune 50/100/500
companies, school districts, police departments, and clergy. (Id. at ¶ 17.) He also managed
other account executives. (Id. at ¶ 20.) Accordingly, Lehnen reportedly spent most of his
usual 10-12 hour workday on his computer, responding to emails, dealing with real-time
crisis events, preparing and reviewing reports, negotiating and writing contracts, creating
marketing materials, working with spreadsheets and databases, updating budgets, hiring,
seeking and reviewing resumes, preparing payroll, and invoicing. (Id. at ¶¶ 18-19; AR-
003140.)
Lehnen also worked on matters nationally and internationally, sometimes
responding to suicides and other casualties, often at a moment’s notice, still with most of
his work being performed via computer. (Dkt. #15-5, at 138 (AR-001355).) Some of the
more notorious crisis to which he was asked to respond for clients included mass shootings
2 The court has attempted to take the facts in this section from the parties’ proposed findings to
the extent that they are supported by evidence in the administrative record. With the exception of
the facts concerning Unum’s counterclaim, the parties dispute most of the proposed findings.
Because of this, the court has included evidentiary support to Bates Number cites in the
administrative record (“AR”), which is located at Dkt. #15-1 through #15-11, when addressing
Lehnen’s claim for disability benefits.
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occurring in Las Vegas and at Sandy Hook Elementary, a night club in Florida, and a mall
in Kenya. (Id.) Lehnen also responded to natural disasters, such as the California wild
fires. (Id.) When these tragedies occurred, Lehnen organized all of the psychological
response providers to mobilize and coordinate with clients who had impacted employees.
(Id.) In addition to crises intervention and management, Lehnen frequently prepared
reports and negotiated contracts, both with clients and with mental health providers. (Id.)
In 2015, when he was 54 years of age, Lehnen took a leave of absence from Beacon
after reporting persistent postural perceptual dizziness (“PPPD”), anxiety, depression, and
attention deficit disorder (“ADD”). PPPD is also sometimes referred to as “3PD,” and can
be “a common long-lasting cause of dizziness or vertigo.” (Tataryn Decl. Ex. 2 (dkt. #19-
2) at 2.) Also described as a “chronic vestibular disorder,” symptoms of PPPD include
“unsteadiness, dizziness, or non-vertiginous dizziness, which are present for most days for
90 days or more and exacerbated by positions such as sitting upright, standing, or walking
and visually complex stimuli.” (Id.; Tataryn Decl. Ex. 1 (dkt. #19-1) at 6.)
While Lehnen was eventually able to return to work with accommodations in the
form of additional computer screens (3-4) to reduce scrolling (dkt. #15-1, at 173 (AR-
000172)), his health deteriorated again in the Spring of 2019, when he experienced bouts
of dizziness, sleeping difficulties, neck pain, hand pain, and anxiety about his job
performance. (Dkt. #15-1, at 186 (AR-000185); Dkt. #15-5, at 138 (AR-001355).) In
response, Lehnen reduced his hours between July 7, 2019, and November 17, 2019, but
then returned to work full time. (Dkt. #15-1, at 186 (AR-000185).) Unfortunately,
within a few months, Lehnen was forced to stop working altogether because of
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deteriorating physical and mental health conditions that made it difficult for him to work
on a computer. In particular, extensive scrolling on his computer exacerbated his PPPD
symptoms and the amount of typing he performed aggravated his bilateral hand pain.
Accordingly, Lehnen was placed on medical leave on April 16, 2020 (dkt. #15-1, at
46 (AR-000045)), reporting dizziness and nausea from PPPD, as well as anxiety and
depression from being debilitated due to “vision issues.” (Dkt. #15-1, at 173 (AR-
000172).) He also reported having heart issues, high blood pressure from anxiety, “very
swollen and stiff” fingers, as well as joint pain. (Id. at 172, 175 (AR-000172, 174).) Based
on these symptoms, Lehnen first submitted an application for long-term disability (“LTD”)
benefits on April 28, 2020 (Claim #17913950), listing Dr. James McCoy as his treating
psychiatrist and Dr. Scott Eggers of the Mayo Clinic as his treating neurologist. (Dkt.
#15-1, at 46-47 (AR-000045-46).)
B. The LTD Benefit Plan
As part of its employee benefit package, Beacon provided Lehnen and others with
long-term disability insurance coverage under a group policy insured by Unum -- Policy
No. 413774 001. Beacon’s parent, FHC Health Systems, Inc., is the policyholder, and
Unum is the claims administrator and fiduciary for its employee welfare benefit plan (the
“Plan”). There is no dispute that the Plan is subject to ERISA.
As a “Group 2” participant in the Plan administered by Unum, Lehnen is considered
“disabled” when Unum determines that:
- you are limited from performing the material and substantial duties of
your regular occupation due to your sickness or injury; and
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- you have a 20% or more loss in your indexed monthly earnings due to
the same sickness or injury.
(Dkt. #15-1, at 84 (AR-000083) (emphasis in original).) “Limited” is defined by the Plan
to mean “cannot or unable to do” (id. at 101 (AR-000100)), while “material and
substantial duties” are those that (1) “are normally required for the performance of [the
claimant’s] regular occupation”; and (2) “cannot be reasonably omitted or modified.” (Id.
at 102 (AR-000101).) A claimant’s “regular occupation” is further defined to mean the
occupation that the claimant is “routinely performing” at the time disability begins,
although “Unum will look at [the claimant’s] occupation as it is normally performed in the
national economy, instead of how the work tasks are performed for a specific employer or
at a specific location.” (Id. at 103 (AR-000102).)
For employees such as Lehnen, who had not yet reached the age of 60 at the time
he claimed disability, the “maximum period of payment” for benefits extended to age 65,
but not less than five years. (Dkt. #15-1, at 90 (AR-0000089).) However, the Plan also
states that a “lifetime cumulative maximum benefit period” of only 24 months applies “for
all disabilities due to mental illness and disabilities based primarily on self-reported
symptoms,” including “any combination of such disabilities,” even if they “are not
related.” (Id. at 91 (AR-000090) (emphasis in original).) “Self-reported symptoms” are
also defined to mean “the manifestations of [the claimant’s] condition which [he or she]
tell[s] [their] physician, that are not verifiable using tests, procedures or clinical
examinations standardly accepted in the practice of medicine.” (Id. at 103 (AR-000102).)
“Examples of self-reported symptoms include, but are not limited to, headaches, pain,
fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.” (Id.)
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C. Lehnen’s Claim for Benefits
In support of his claim for benefits, Lehnen provided an “Attending Physician
Statement” from Dr. McCoy, who identified “dysthymic disorder” as his primary diagnosis,
with a secondary diagnosis of “generalized anxiety disorder” and ADD. (Dkt. #15-1, at
60-62 (AR-000059-61).) Dr. McCoy specifically opined that Lehnen’s symptoms impaired
his judgment, decision making, and concentration, which limited his ability to perform his
job duties. (Id. at 61 (AR-000060).) Dr. McCoy also executed a “Certification of Health
Care Provider for Employee’s Serious Health Condition” form, repeating that Lehnen’s
“depression + anxiety impairs his judgment & decision making,” such that he was “fully
unable” to perform his work. (Id. at 127 (AR-000126).) Dr. McCoy provided additional
records regarding Lehnen’s therapy sessions and medication regimen. (Dkt. #15-2, at 36-
53 (AR-000335-352).)
Lehnen also submitted medical records from another treating physician, Dr. Mark
Roberts, indicating that Lehnen was prescribed medication for cervical arthritis and hand
stiffness due to arthritis, as well as chronic restless leg syndrome (“RLS”). (Dkt. #15-1, at
290-91 (AR-000289-290).) While an MRI of Lehnen’s right hand was unremarkable (id.
at 301 (AR-000300)), additional records documented that Lehnen was also treated for
moderate hypertension. (Dkt. #15-2, at 102-03 (AR-000401-02).)
Finally, Lehnen provided records from evaluations done in September 2020 by
specialists at the Mayo Clinic in Rochester, Minnesota, including Drs. Eggers and Shirlene
Sampson. (Dkt. #15-2, at 166-97 (AR-000465-496).) At that time, Lehnen reported
experiencing dizziness related to “scrolling on a phone or on a computer,” but not with his
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own movement. (Id. at 171 (AR-000470).) He further reported that his “work situation”
was “extremely stressful as he has a lot of computer activity in his job,” and he had begun
to struggle with forgetfulness with some “word-finding difficulties.” (Id.) Dr. Sampson
addressed Lehnen’s symptoms and assessed him with “Cognitive disorder, NOS.” (Id. at
172 (AR-000471).) While an MRI of Lehnen’s brain disclosed “[n]o acute intracranial
abnormalities” (id. at 166 (AR-000465)), Dr. Sampson noted that Lehnen scored a 21/30
on the Montreal Cognitive Assessment (“MOCA”) (id.), which is within the range of “mild
cognitive impairment.” (Dkt. #17, at 9 n.4.) Dr. Sampson also determined that Lehnen
had “reduced short-term memory, getting only 1 of 5 items at a 5 minute delay,” although
he had “good concentration” and performed well on “serial sevens.” (Dkt. #15-2, at 172
(AR-000471).) Dr. Sampson ordered neuropsychological testing and another MRI of
Lehnen’s brain “to get [a] quantitative evaluation of his hippocampi.” (Id.)
Dr. Eggers further noted that Lehnen had previously been prescribed a home
program of physical therapy for his vestibular symptoms and PPPD. (Id. at 176 (AR-
000475).) During his evaluation at Mayo Clinic, Lehnen also saw a physical therapist
(P.T. Jay Goetting), who observed that Lehnen’s balance was “improved” since first being
diagnosed with PPPD, but that he continued to have “visual sensitivities” and reported
having “neck pain” as well. (Id. at 174 (AR-000473).) Even so, Dr. Eggars observed “no
objective indications of either peripheral or central vestibular system dysfunction” and “no
indications of active benign paroxysmal positional vertigo (BPPV)” during diagnostic
testing. (Id.) Still, Dr. Eggers observed that Lehnen’s symptoms suggested “the possibility
of developing headache-associated dizziness and/or persistent postural perceptual
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dizziness,” and he also noted that other test results indicated a “high likelihood of clinically
significant depressive and anxiety symptoms.” (Id. at 177 (AR-000476).)
Thus, while Dr. Eggers did not identify any “symptoms or new exam findings that
would be worrisome for some additional vestibular or neurological disorder,” he deferred
to Lehnen’s treating psychiatrist, Dr. McCoy, for ongoing management of anxiety and
depression, and recommended “Habituation-type vestibular rehabilitation” as a “primary
therapeutic option” for treating Lehnen’s symptoms of PPPD. (Id. at 182-84 (AR-000481-
483.) These exercises involve watching a series of videos at 30-40 second intervals, twice
daily, progressing from videos that are easier to watch to those that are more difficult with
a goal of 15 minutes without symptoms. (Id. at 183 (AR-000482).). Dr. Eggers also
recommended that Lehnen “should primarily limit his computer use to those exercises
while he is not working.” (Id.)
In support of his claim for LTD benefits, Lehnen also completed a questionnaire
about his work experience and education,3 and provided a “Job Description” for his title as
a Senior Account Executive at Beacon, which included the following:
General Summary – Develops a strategic approach to the management,
business retention and growth of corporate accounts, specifically around
large Beacon Health Options business critical accounts and new business
development. Functions in a leadership role within Account Services, the
Senior Account Executive will assume management responsibilities that
3 Before going to work at Beacon in 2011, Lehnen worked for Northwest Airlines for 20 years, and
he also worked in real estate. (Dkt. #15-1, at 178 (AR-000177).) Lehnen attended Minneapolis
Community College and the University of Minnesota before receiving a Bachelor of Science in
Business Administration from Madison University in 2006. (Dkt. #15-5, at 131 (AR-0001348).)
He received his Certified Employee Assistance Professional credentials in 1992, and earned a global
EAP certification through the University of Maryland, and is further certified in Critical Incident
Stress Management. (Id.)
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include participation in corporate initiatives, coordination of activities in
response to executive management request or to enhance provision of
services and providing subject matter expertise to facilitate interdepartmental
cooperation. Primary areas of accountability include business retention, new
business development and demonstrated excellence in customer satisfaction
and staff management of less experienced account staff as assigned.
(Dkt. #15-2, at 84 (AR-000383).)4 Lehnen’s position also required “[e]xpert and
proficient level of knowledge, skill and ability” with Microsoft Office products, including
Word, Excel, and PowerPoint. (Id. at 87 (AR-000386).) Moreover, in addition to
knowledge and experience related to “clinical services,” the position required the same level
of expert proficiency with: (1) analytical problem solving ability; (2) interpersonal
communication skills; (3) verbal and written communication skills; (4) group presentation
and public speaking skills; and (5) a team-oriented work philosophy. (Id.)
After considering the documents provided, Unum’s vocational consultant, Laura
Feeney, concluded that when compared to occupations in the national economy Lehnen’s
duties most closely matched the duties performed by an “Account Executive eDOT code
169.367-001, which involves promoting company services or products to individuals or
businesses, selling individually or as the head of a team.” (Dkt. #15-2, at 89 (AR-
000388).) Feeney identified the following “Material and Substantial Duties” for this
position:
Maintains existing customer accounts, acknowledges and handles taking care
of their needs, and assures their satisfaction. Helps maintain or extend
existing customer accounts, and attracts and develops new accounts.
Communicates regularly with current and potential customers over the
4 Unum disputes that Lehnen’s job title was Senior Account Executive, representing that it received
conflicting information about his title, but offering no evidence of his having a different job title
despite being in the best position to do so. (Def. FOF (dkt. #22) ¶¶ 17-26; Def. Response to PFOF
(dkt. #30) ¶ 62) (citing AR-000184-186, 1307-1311).
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phone or email to discover their needs, answer questions, respond to emails,
and find solutions to issues. Ensures products and services are to customers’
satisfaction. Updates customers’ profiles so the company can track what’s
happening with accounts. Gathers information and submit[s] reports to
management. Networks within the industry and studies the competition.
Prepares and delivers targeted presentations of the company’s products or
services in person and/or web-based, explains product offerings, writes up
bids, and closes sales.
(Id.) Feeney further determined that the occupation required sedentary work with the
following physical demands:
Performed mostly sitting, may involve standing or walking for brief periods
of time and lifting, carrying, pushing, and/or pulling up to 10 pounds
occasionally[.] Frequent talking, hearing, near acuity, far acuity[.]
Occasional reaching, handling, fingering, [and] keyboard use.
(Id. at 90 (AR-000389).) Finally, Feeney determined that the mental or cognitive demands
of the occupation required “skilled work” that involved: “directing and controlling
activities; using creativity to develop innovative responses to customer needs; speaking and
writing persuasively to influence choices; making independent judgments and decisions;
and interacting professionally in the workplace.” (Id.)
On October 20, 2020, Unum submitted Lehnen’s claim for approval, noting that
he was receiving treatment from “multiple specialists” and had been given behavioral
health restrictions. (Dkt. #15-2, at 206 (AR-000505).) Specifically, Unum noted that
while Lehnen’s medical records from neurology reflected a normal MRI of the brain and a
“MOCA of 21” that indicated mild cognitive impairment, the information in the file
supported a finding that Lehnen would be precluded from the outlined activities listed by
Unum’s vocational consultant Feeney, at least through neuropsychological or “NP testing”
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to further evaluate Lehnen’s cognitive impairment, at which time his eligibility for benefits
would be re-evaluated. (Id.)
In preliminarily approving Lehnen’s claim, Unum noted that he had been out of
work since April 2020 due to dysthymic and generalized anxiety disorders. (Dkt. #15-2,
at 232 (AR-000531).) Because his disabling conditions concerned behavioral or mental
health, however, Unum also determined that the maximum duration of benefits Lehnen
could receive was 24 months. (Id.) Accordingly, Unum notified Lehnen that his claim for
LTD benefits was approved in a letter dated October 26, 2020, explaining that his date of
disability was April 20, 2020, and that his benefits would begin as of July 19, 2020. (Dkt.
#15-2, at 241 (AR-000540).) The letter advised Lehnen that he was also required to give
Unum authorization to obtain additional medical information as proof of his claim or of
continuing disability. (Id. at 244 (AR-000543).) Unum further advised Lehnen that the
maximum benefit period for his claim was 24 months. (Id.) In a separate follow-up letter
to Lehnen, Unum clarified that, as long as he remained disabled, he would be eligible to
receive benefits through July 18, 2022. (Dkt. #15-3, at 37 (AR-000642).)
D. Unum Terminates Plaintiff’s Benefits
Approximately ten months later, however, Unum sent another letter to Lehnen on
August 20, 2021, seeking additional medical records from a recent visit with Dr. McCoy,
as well as records from a therapist that Lehnen was then seeing at MN Psychological
Association, Jennie Hardman. (Dkt. #15-3, at 293 (AR-000897).) Unum also reminded
Lehnen of the Plan’s 24-month limitation on benefits for disability based on mental illness:
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Your policy has a limitation for mental illness conditions. The medical
information in our file indicates that your disability is subject to this policy
limitation. Based on the information we have on file, you are limited to a
maximum of 24 months of benefits.
Your benefits started on July 19, 2020. You will reach the maximum
duration of your benefits on July 18, 2022, provided you continue to meet
the policy definition of disability.
(Id.) In response, Lehnen advised Unum that he could not go back to his position because
of pain in his neck, his hands, symptoms of PPPD, and the cognitive difficulties that he
was experiencing. (Dkt. #15-4, at 90 (AR-000998).)
Dr. McCoy provided additional records of Lehnen’s treatment for his dysthymic
disorder, attention deficit hyperactivity disorder (“ADHD”), and chronic post-traumatic
stress disorder (“PTSD”) with associated nightmares. (Dkt. #15-4, at 47-49 (AR-000955-
957).) Dr. McCoy also responded to a questionnaire from Unum medical consultant
Lawrence Burstein, who asked whether Lehnen remained unable to work based on his
mental status, which Burstein thought was unsupported by findings that Lehnen could not
perform the occupational demands of his work. (Dkt. #15-4, at 264-65 (AR-001172-
1173).) Dr. McCoy disagreed and indicated that although Lehnen was initially thought
to be impaired by his behavioral health symptoms, he was now of the opinion that Lehnen
was impaired by his medical condition and physical impairments, referring in particular to
additional medical records from Lehnen’s treatment providers at Mayo Clinic. (Id. at 271
(AR-001179).)
Although Unum had also requested records from therapist Jennie Hardman to
support Lehnen’s claim of cognitive impairment (dkt. #15-4, at 243 (AR-001151)),
Hardman did not provide any records other than a treatment plan, while responding that
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Lehnen had a psychiatric diagnosis of PTSD that caused the following, moderately severe
impairments: hypervigilance, high startle response, sleep disturbances and nightmares,
avoidance of triggers, fear, and worry. (Id. at 257, 261 (AR-001165, AR-001169).)
Hardman also advised that Lehnen did not appear to have restrictions or limitations with
work due to PTSD, only due to PPPD. (Id. at 258 (AR-001166).) Specifically, Hardman
opined that Lehnen must limit computer work to 15 minutes per day, could not scroll on
his computer, and had limited ability to grab, type, or sit for long periods. (Id.)
Unum’s medical consultant Burstein also noted that Lehnen had a comprehensive
evaluation and neuropsychological examination at the Mayo Clinic in November 2021,
which disclosed areas of weakness in motor processing speed, although the neurologist who
saw him indicated that Lehnen did not meet the criteria for mild cognitive impairment.
(Id. at 271 (AR-001179).) After considering the records from Dr. McCoy and therapist
Hardman, Burstein concluded that “within a reasonable degree of medical certainty, the
information does not support that the claimant continues to lack the full-time sustained
capacity to perform the listed occupational demands from a behavioral health perspective.”
(Id. at 271-72 (AR-001179-1180).)
Unum’s Designated Medical Officer, Audrey Longson, psychiatry D.O., concurred
with Burstein, concluding the available medical information did not support finding that
Lehnen continued to lack the sustained capacity to perform full-time work involving
“directing and controlling activities; using creativity to develop innovative responses to
customer needs; speaking and writing persuasively to influence choices; making
independent judgments and decisions; and interacting professionally in the workplace.”
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(Dkt. #15-4, at 284-85 (AR-001192-1193).) Dr. Longson also found the formal testing
of Lehnen’s cognitive functioning at Mayo Clinic “largely unremarkable.” (Id. at 284 (AR-
001192).) Indeed, Longson found the medical records as a whole contained “serial
unremarkable mental status examination findings” and did not contain “clinical evidence
of severe/persistent psychiatric pathology that would be expected to restrict or limit
functionality.” (Id. at 285 (AR-001193).)
On February 3, 2022, Unum informed Lehen in writing that it had completed a
review of his LTD claim and would not continue paying benefits through the maximum
duration allowed under the Plan:
Based on our review of the available medical information, we determined
that your mental health conditions no longer rise to a level of severity which
would prevent you from performing the demands of your regular occupation
on a full-time basis. We determined that you[r] conditions of [PPPD],
reports of cognitive decline, neck and hand pain would not prevent you from
performing the demands of your regular occupation.
Based on our review, the information in your claim file indicates you are not
precluded from performing the duties of your regular occupation due to any
conditions/symptoms. You no longer meet your policy’s definition of
disability. Your claim has been closed effective February 4, 2022.
(Dkt. #15-4, at 303 (AR-001214).) In reaching the decision that Lehnen was no longer
disabled under the terms of the Plan, Unum considered evaluations by physicians at Mayo
Clinic, as well as those by Dr. McCoy and therapist Hardman. (Dkt. #15-4, at 298-99
(AR-001206-1207); (Id. at 303-04 (AR-001211-1212).)
E. Plaintiff’s Appeal
On July 28, 2022, Lehnen submitted an appeal and additional supporting evidence
to Unum. (Dkt. #15-5, at 70-89 (AR-001287-1306.) Then almost 61 years old, Lehnen
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argued that he continued to be disabled under the terms of the Plan based on the following,
multifold conditions:
(1) [PPPD]; (2) cognitive impairment and suspected early onset [Lewy Body]
dementia;5 (3) sleep disorders including [Rapid Eye Movement (“REM”)
sleep behavior disorder (“RBD”)], [Restless Leg Syndrome (“RLS”), and
[Obstructive Sleep Apnea (“OSA”)]; (4) substantial degenerative joint
disease and advanced degenerative arthritis in his neck and spine; (5) carpal
tunnel syndrome bilateral, dupuytrens,6 and degenerative arthritis in both
hands and wrists and bilateral ulnar positive variance; and (6) behavioral
issues involving anxiety, PTSD and depression.
(Id. at 70 (AR-001287).) Lehnen argued that Unum’s decision disregarded these
documented physical conditions and medical records from treating physicians, and was
further based on a “flawed vocational assessment.” (Id. at 71 (AR-001288).) Specifically,
Lehnen noted that: (1) Unum incorrectly determined that his regular occupation was an
Account Executive, when his actual job title was Senior Account Executive; and (2) the
vocational expert further incorrectly determined that his job only entailed occasional
keyboarding, when in fact his work required constant computer usage. (Id. at 85 (AR-
001302).)
On appeal, Lehnen also provided a detailed summary of his claim history, including
the incorrect job description used by Unum’s vocational consultant Laura Feeney, and
medical reviews by Unum that disregarded symptoms and diagnoses from several treating
5 Lewy Body Dementia is a type of dementia with similarities to Parkinson’s disease and Alzheimer’s
disease, with decreased verbal fluency and visual-spatial awareness. Dorland’s Illustrated Medical
Dictionary 479 (33rd ed. 2020).
6 Dupuytren’s contractures are a condition of fixed resistance to passive stretch of a muscle in the
hand, usually consisting of flexion of a finger caused by shortening, thickening, and fibrosis of the
palmar fascia. Dorland’s Illustrated Medical Dictionary 404 (33rd ed. 2020).
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medical specialists opining on his physical condition, particularly on the difficulties caused
from PPPD, cognitive impairments, carpal tunnel syndrome, and advanced degenerative
arthritis. (Id. at 74-86 (AR-001291-1303).) Lehnen also presented new evidence in the
form of an “ADA Accommodation Form” completed by Dr. Wayne Feyereisn of the Mayo
Clinic, explaining that the functional limitations caused by Lehnen’s disability included
the inability to perform the minimum required number of hours, both physically and
mentally, at the executive level, especially the demands of using a computer due to multiple
complications from PPPD, cognitive decline, degenerative disc disease, arthritis in his neck
and hands, carpal tunnel, sleep disorders, anxiety, and depression. (Id. at 86-87 (AR-
001303-1304).) In addition, Lehnen provided updated support from Dr. McCoy, as well
as further support from orthopedic surgeon, Dr. Mary Jurrison, of the Mayo Clinic, and an
independent vocational expert, Ken Askew, the latter of whom concluded that Lehnen was
not physically or mentally capable of working in his regular occupation and was disabled.
(Id. at 87-89 (AR-001304-1306).)
Finally, before Unum decided Lehnen’s appeal, the SSA found him disabled due to
an inability to work and awarded him SSDI benefits. Specifically, in parallel with
submitting his claim to Unum, Lehnen had filed a claim for SSDI benefits on December
24, 2020, claiming an inability to work as of April 20, 2020, based on the following
physical and mental conditions: PPPD, degenerative disc disease, severe depression, severe
anxiety, and arthritis in both hands. (Dkt. #15-7, at 99 (AR-001892).) To qualify for
SSDI benefits, a claimant must suffer from a medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to
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last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). This
impairment must also render the claimant unable to engage in the work previously
performed or in any other substantial gainful employment that exists in the national
economy. 42 U.S.C. § 423(d)(2).
In a decision dated September 15, 2022,7 the SSA determined that Lehnen was
primarily disabled due to “Disorders of the Skeletal Spine” and that his mental disorders
were secondary. (Dkt. #15-7, at 97 (AR-001890).) The SSA concluded further that
Lehnen had the following other “severe” physical conditions: Abnormality of a Major
Joint(s) in Any Extremity, Carpal Tunnel Syndrome, Vertiginous Syndromes and Other
Disorders of Vestibular System. (Id. at 107 (AR-001900).) The SSA determined that
Lehnen had the following physical residual functional capacity limitations:
• Occasional lifting of 20 pounds and frequent lifting of 10 pounds.
• Standing, walking, or sitting for no more than 6 hours in an 8-hour workday.
• Limited ability to push or pull in both upper extremities.
• Postural limitations on climbing ramps/stairs (frequently),
ladders/ropes/scaffolds (never); balancing (frequently); stooping (frequently);
kneeling (frequently); crouching (frequently); crawling (occasionally).
• Limited reaching in any direction, including overhead or bilaterally on the
left and right.
• Limited handling (gross manipulation) and fingering (fine manipulation) in
both hands.
7 Lehnen’s claim was denied at the initial level on August 19, 2021, but he was subsequently found
disabled on reconsideration. (Dkt. #15-7, at 115 (AR-001908).)
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(Id. at 111-115 (AR-001904-1908).) The SSA also determined that Lehen was moderately
limited in his ability to maintain attention and concentration for extended periods. (Id. at
116 (AR-001909).)
Given these limitations, the SSA concluded that Lehnen had maximum sustained
work capability for light, semi-skilled work, that was limited to simple tasks. (Id. at 121-
22 (AR-001914-1915).) The SSA also concluded that Lehnen was disabled from the
alleged onset date of April 20, 2020, because: (1) he did not have the residual functional
capacity to perform his past relevant work as a Senior Account Executive, whose duties
include managing workplace EAP programs, writing and providing reports, conducting
trainings and managing financial budgets; and (2) he did not have transferable skills. (Id.
at 120-22 (AR-001913-1915.)
F. Unum’s Decision on Appeal
Lehnen provided the complete SSA file to Unum on November 9, 2022. (Dkt. #15-
7, at 86-89 (AR-001879-1882).) Subsequently, in a decision issued on January 4, 2023,
Unum sustained his appeal, but only in part, concluding that Lehnen was disabled due to
mental health conditions and was entitled to continue receiving LTD benefits from
February 4, 2022, through July 18, 2022, finding that the 24-month mental health
limitation in the Plan applied to Lehnen’s disability. (Dkt. #15-11, at 263-264 (AR-
003269-3270).) However, despite the SSA’s decision that he was physically disabled and
could not work, Unum determined that his residual functional capacity did not exceed the
physical demands of his regular occupation. (Dkt. #15-11, at 263 (AR-003269).)
Specifically, Unum found that the medical records did not support restrictions that
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precluded “occasional keyboard use” or limited his ability to otherwise perform his work.
(Dkt.#15-11, at 264 (AR-003270).) Accordingly, Unum denied Lehnen additional
disability benefits under the Plan based on any of his limitations. (Id.)
As support for this decision, Unum relied on an assessment by its medical
consultant, Dr. Scott B. Norris, who had never met Lehnen, but concluded from the
medical evidence that Lehnen was capable of performing the demands of his sedentary
level occupation as of July 19, 2022, and going forward. (Dkt. #15-6, at 48
(AR0001567).) Unum also relied on an assessment by psychiatric consultant Dr. Peter
Brown, who had similarly never met Lehnen, but observed that there was evidence of a
“chronic psychiatric condition with symptoms of inattentiveness, anxiety and depression
exacerbated by work stressors around the date of disability.” (Dkt. #15-6, at 95 (AR-
001614).) Dr. Brown also found it important that the initial supporting behavioral health
restrictions and limitations had predominantly changed to general medical explanations
for Lehnen’s work impairments in 2022. (Id.) Noting further that neuropsychological
testing in late 2021 was normal and not consistent with a physical impairment due to any
diagnosis or combination of diagnoses, Dr. Brown concluded that there was no support for
restrictions or limitations after February 3, 2022. (Id.)
PROCEDURAL POSTURE
As a result of Unum’s decision that he was not physically disabled, Lehnen’s LTD
benefits based on his mental or behavioral health expired at the end of the 24-month period
allowed under the Plan on July 18, 2022, prompting Lehnen to file this lawsuit to challenge
Unum’s adverse decision regarding his entitlement to LTD benefits beyond that date based
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on his physical impairments. (Pl’s Compl. (dkt. #1) ¶ 116.) The administrative record is
voluminous. The medical records, as well as the opinions from treating physicians and a
vocational expert about Lehnen’s functional capacity and restrictions, are discussed further
below as additional findings of fact in connection with the merits of his claim. Arguing
that he meets the definition of disability under the Plan and is entitled to continuing LTD
benefits beyond July 18, 2022, Lehnen seeks an adjudication that he is physically disabled
and entitled to monthly benefits retroactive to the date benefits were terminated, plus
prejudgment interest, as well as attorneys’ fees and costs under 29 U.S.C. § 1132(g).
Unum has also filed a counterclaim (dkt. #11, at 40-45), arguing that Lehnen is
required to refund an overpayment of LTD benefits under the Plan for the SSDI benefits
he received retroactive to April 2020.8 The Plan authorizes Unum to subtract from
Lehnen’s “gross disability payment” funds that are “deductible sources of income,”
including any amount received as disability benefits under “the United States Social
Security Act.” The Plan provides further that Unum has the right to recover in full any
overpayment due to receipt of deductible sources of income. The Plan states: “Unum, for
itself and as claims fiduciary for the Plan, is entitled to legal and equitable relief to enforce
its right to recover any benefit overpayments caused by [a participant’s] receipt of disability
earnings or deductible sources of income from a third party.” As a result, the Plan
recognizes that “Unum and the Plan have an equitable lien over such sources of income
until any benefit overpayments have been recovered in full.”
8 The facts relevant to Unum’s counterclaim discussed in this section are undisputed. (Pl. Amended
Response to Unum’s Findings (dkt. #31) ¶¶ 162-177.)
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On July 31, 2020, Unum sent Lehnen a letter advising him that any LTD benefits
he received under the Plan may be reduced if he applied for and received income benefits
from another source. The letter included a “Benefit Payment Option Agreement,” which
Lehnen signed on August 17, 2020. (Dkt. #11-1, at 1.) In doing so, Lehnen elected to
have Unum calculate his benefits without estimating the benefit amounts that he could
potentially receive from other sources, such as Social Security. (Id.) Lehnen acknowledged
that “by paying [him] an unreduced benefit at this time, an overpayment will likely be
incurred on [his] disability claim that [he] will have to repay in the future.” (Id.) Lehnen
agreed to repay Unum “within 30 days of the receipt of the funds creating the
overpayment.” (Id.) Lehnen also agreed that, if he did not repay the entire overpayment
within 30 days, Unum may:
1. Recoup the overpayment from future disability payments, including
any minimum benefit owed under the policy;
2. Effect trustee process, lien, attachment or garnishment on any of [his]
real or personal property in an amount equal to the overpayment;
3. Commence a civil action against [him] to enjoin [his] act of violating
the terms of the Plan by failing to reimburse Unum the full amount
of the overpayment;
4. Seek a judgment of specific performance requiring [him] to abide by
[his] promise to repay the overpayment;
5. Seek all other appropriate equitable relief including equitable
restitution, money had and received, and an equitable lien by
agreement; and/or
6. Seek all fees and expenses, including reasonable attorney’s fees,
associated with the collection of the overpayment.
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(Id.) Finally, Lehnen agreed to “waive any legal or equitable defenses to the rights of Unum
to enforce the terms of this Agreement.” (Id.)
When Unum approved Lehnen’s claim for LTD benefits in 2020, they contacted
him about applying for SSDI benefits and referred him to their Social Security assistance
provider, GENEX Services, LLC, which represented Lehnen during that application
process. (Dkt. #15-3, at 5-6 (AR-000610-611).) At some point thereafter, Lehnen
retained his own private counsel for the purpose of pursuing SSDI benefits. While Lehnen
was in the process of applying for SSDI benefits, Unum sent him another letter on
November 11, 2020, advising again of his responsibility to reimburse any overpayment
under the terms of the Plan:
Social Security Benefits and Reimbursement Responsibility
If you are approved for Social Security Disability Insurance benefits, your
Long Term Disability payments will be reduced by your Social Security
benefits. If you are awarded Social Security benefits, your first payment from
this alternate source will generally be a lump sum of retroactive benefits.
Please be aware that all or a portion of this retroactive payment may need to
be repaid to Unum Life Insurance Company of America. Therefore, we
recommend that you not spend this income before contacting your Unum
Life Insurance Company of America representative.
After receipt of an award, Unum Life Insurance Company of America may
offset or reduce the amount of your Long Term Disability monthly benefit
by all or some of that other income benefit.
Please notify us immediately of any award notice of Social Security Disability
Insurance benefits.
(Dkt. #15-3, at 6 (AR-000611).)
In October 2022, Lehnen received SSDI benefits retroactive to April 2020, during
which time he was receiving LTD benefits under the Plan. On January 9, 2023, Unum
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further calculated a “Net overpayment” for Lehnen of $42,355.64. On January 19, 2023,
Unum sent a letter to Lehnen, through his counsel, advising that his last LTD benefit
payment of $15,042.94 would be withheld and applied toward the overpayment on his
claim, leaving a balance due of $27,312.70.
Although Unum requested repayment within 30 days, Lehnen has not repaid the
remaining overpayment due. In addition to seeking reimbursement of the remaining
overpayment, plus interest and attorneys’ fees, Unum seeks an order requiring plaintiff to
provide an accounting of the SSDI benefits he has received and, additionally, an order
permitting Unum to deduct the amount of the overpaid benefits from any disability
benefits he might be found entitled to receive under the Plan in this lawsuit or in a future
disability claim. (Dkt. #21, at ¶¶ 3-5.)
CONCLUSIONS OF LAW
There are two, primary issues for the court to decide. First, the court must decide
whether Lehnen was physically disabled and unable to work under the terms of the Plan,
such that he is entitled to LTD benefits from July 19, 2022, and forward absent evidence
of his disabilities resolving. (Dkt. #17, at 3.) If so, the court must also determine whether
he is entitled to interest, attorneys’ fees, and costs. Second, the court must decide whether
Unum is entitled to recover any overpayment of benefits that Lehnen may have received
as the result of receiving SSDI benefits retroactive to April 2020, plus interest, attorneys’
fees, and costs. The court addresses both issues in turn below.
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I. The Merits of Lehnen’s Claim for LTD Benefits Based on Physical Disability
Lehnen argues that the medical evidence of his physical disability is consistent with
his symptoms, which are corroborated by diagnostic and clinical testing. (Dkt. #17, at
23.) As noted above, the Plan provides that a participating employee is “disabled” when
he is “unable to perform the material and substantial duties of his or her regular
occupation.” Thus, the court must first determine the “material and substantial duties” of
his “regular occupation,” then decide whether he has shown by a preponderance of the
evidence that he is unable to perform those duties due to his physical impairments.
A. Lehnen’s Regular Material and Substantial Duties
Lehnen worked remotely from home for Beacon as a Senior Account Executive
providing essential EAP services, often under circumstances of extreme urgency that
required crisis intervention and management skills. In that role, Lehnen reported to
Beacon’s Regional Account Director. Vocational consultants from Unum, using the
enhanced Dictionary of Occupational Titles (“eDOT”),9 determined that Lehnen’s job
description met the definition of “Account Executive,” which has the following “material
and substantial duties” as performed in the national marketplace:
[C]lient/account management, business growth, customer satisfaction,
administrative responsibility for contract management and service provision.
Maintaining existing accounts and attracting and developing new accounts
are also required.
9 The eDOT is a private resource that is distinct from the U.S. Department of Labor’s Dictionary
of Occupational Titles (“DOT”), which has not been updated since 1991 (dkt. #15-5, at 135 (AR-
001352)), and is considered “outmoded.” Fetter v. United of Omaha Life Ins. Co., No. 20-C-0633,
2021 WL 1842463, at *6 (E.D. Wis. May 7, 2021); see also Covill v. Unum Life Ins. Co. of Amer.,
2024 WL 3443916, at *3 (N.D. Iowa July 16, 2024) (noting that, in sharp contrast to the DOT,
the eDOT is updated quarterly).
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(Dkt. #15-11, at 170 (AR-003176).) Lehnen’s job description states that his position
functioned in “a leadership role within Account Services,” and that he had an assortment
of management responsibilities. (Dkt. #15-2, at 84 (AR-000383).) Indeed, during his
appeal from the denial of benefits, Unum acknowledged that Lehnen’s job as a Senior
Account Executive functioned in a leadership role within Account Services and had
“management responsibilities that include participation in corporate initiatives,
coordination of activities in response to executive management requests and business
retention as well as new business development.” (Id.)
Regardless, Unum identified the following duties associated with Lehnen’s
occupation, which are consistent with the evidence provided by plaintiff regarding his
occupational requirements:
Develop and build relationship with members of client participation team,
client contacts and leadership contacts.
Maintain thorough understanding and up-to-date knowledge of financial
concepts important for effective underwriting, cost controls and profitability.
Develop and maintain accurate and comprehensive knowledge of products
and services.
Monitor performance standards and service level agreements.
Manages and mentors account team members.
Participates in projects and special projects.
(Id. at 171 (AR-003177).)
Comparing Lehnen’s executive-level job to the duties of an “Account Director,”
Unum also identified the following, other material and substantial duties:
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29
Develops solid relationships with key client contacts of organizations across
the nation to learn about projects and opportunities.
Plans, coordinates, and implements marketing plans, and oversees marketing
teams who are developing campaigns.
Directs the growth, management, retention and satisfaction of a portfolio of
key accounts.
Utilizes and demonstrates marketing ability to lead clients strategically and
tactically.
Provides engagement leadership and is regarded by the client as an expert
and trusted advisor.
Provides management ability to lead internal teams to prioritize their work
and perform at the highest level.
(Id.) Similarly, Lehnen presents evidence that he performed all of these tasks and more
while providing EAP crisis intervention services to clients and their employees under
extremely stressful conditions. (Dkt. #15-5, at 138 (AR-001355).) He also frequently
prepared and reviewed reports and contracts. (Id.)
While Unum determined that Lehnen’s occupation required only “occasional”
keyboarding (Dkt. #15-11, at 171 (AR-003177)), Lehnen disputes this and presents
persuasive evidence that his position as a remote worker required “constant” computer use
and scrolling. (Dkt. #17, at 6, 19-20; Dkt. #15-5, at 138 (AR-001355).) Moreover, his
job description for Beacon expressly requires expert level proficiency with Microsoft Word,
Excel, and PowerPoint, as well as analytical and problem-solving ability. (Dkt. #15-2, at
87 (AR-000386).) Because Unum offers nothing to refute that these competencies are
reasonably required of a senior-level executive working remotely by computer from home,
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30
the court includes them as among the material and substantial duties of Lehnen’s
occupation.
B. Lehnen’s Evidence of Physical/Cognitive Disability
The administrative record reflects that Lehnen received diagnostic testing and
mental health treatment for anxiety and depression, but also for physical medical
conditions related primarily to PPPD, chronic pain in his hands and neck, and sleep
disorders that contributed to cognitive impairment. In November 2021, Lehnen reported
to Unum that he could not “go back to do his job cognitively,” and that he could not
“mouse” or “sit and read computer screens.” (Dkt. #15-4, at 280 (AR-001188).) In
January 2022, Lehnen’s treating psychiatrist, Dr. McCoy, expressed the opinion that
Lehnen’s mental health problems were exacerbated by these medical issues, which were by
then being treated at the Mayo Clinic. (Dkt. #15-4, at 264-65 (AR-001172-1173).) In
support of his claim that he is physically and cognitively unable to perform the material
and substantial duties of his regular occupation, Lehnen points generally to the following
records of evaluations by specialists at the Mayo Clinic regarding his medical conditions
and cognitive functioning in July 2020; September 2020; December 2020; March 2021;
and November 2021.10 (Dkt. #17, at 7.) Lehnen points in particular to the following
evidence in the administrative record, which is alluded to in the factual findings above and
10 Those records are located in the record as follows: July 2020, dkt. #15-2, at 176-197 (AR-
000475-496); September 2020, dkt. #15-2, at 166-172 (AR-000465-474) and dkt. #15-3, at 147-
152, 184 (AR-000752-757, 789); December 2020, dkt. #15-3, at 81-147, 183 (AR-000686-752,
758-788); March 2021, dkt. #15-4, at 176-178 (AR-001084-1086); November 2021, dkt. #15-4,
at 105-175 (AR-001013-1083).
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summarized in more detail below for each condition that Lehnen credibly claims
collectively contributed to his physical inability to perform his job-related duties. (Dkt.
#17, at 9-13.)
1. PPPD
After Lehnen stopped working in April 2020, he returned to see Dr. Eggers in July
2020 at the Mayo Clinic Department of Neurology for complaints of vertigo and dizziness.
(Dkt. #15-2, at 181 (AR-000480).) Dr. Eggers, who had treated Lehnen previously for
PPPD in 2016, performed a “detailed ocular motor and vestibular examination” and
concluded that Lehnen’s “chronic floating dizziness continues to have hallmarks of
. . . PPPD, namely visually induced dizziness from scrolling on computer screens.” (Id. at
182 (AR-000481).)
An evaluation in July 2020 by a physical therapist with the Department of
Otorhinolaryngology diagnosed “dizziness and impaired coordination/balance” due to
PPPD. (Id. at 177 (AR-000476).) When the physical therapist saw Lehnen again in
September 2020, he noted that Lehnen’s balance had improved but that he continued to
have “visual sensitivities.” (Id. at 174 (AR-000473).) Lehnen’s symptoms of PPPD
improved with physical therapy and home exercises prescribed by Dr. Eggers and the
physical therapist. In November 2021, Lehnen had a “normal Vestibular Exam,” although
he still had “some visual sensitivities suggestive of PPPD.” (Dkt. #15-4, at 132 (AR-
001040).)
In addition to these medical evaluations, Lehnen presents a declaration from his
wife, Brenda, who states that Lehnen repeatedly experienced dizziness and nausea triggered
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32
by looking at his computer screens. (Dkt. #15-5, at 140-41 (AR-001357-1358).)
Although she did not take daily or monthly notes about these occurrences, she documented
several specific instances when Lehnen fell or had difficulty walking because PPPD caused
him to feel nauseated, dizzy, and off-balance. (Id.)
2. Cognitive Impairment
Neuropsychological testing conducted at the Mayo Clinic by Dr. Eva Alden in
December 2020, disclosed that Lehnen’s “overall intellectual abilities [fell] in the high
average range.” (Dkt. #15-3, at 147 (AR-000752).) Even so, testing disclosed “mild
cognitive inefficiency on measures of verbal fluence, as well as memory for semantically
meaningful stories and geometric designs.” (Id.) Dr. Alden concluded that “these subtle
findings” were not due to an underlying degenerative condition, but were “more likely the
cognitive symptoms he experience[d] in his daily life [that were] related to his history of
depression, anxiety, and [PPPD.]” (Id.) In light of Lehnen’s other problems, Dr. Alden
withheld a final diagnosis until his psychometric test results could be integrated with other
diagnostic testing by his referring provider. (Id.)
Lehnen underwent additional neuropsychological testing with Dr. Matthew Powell
at the Mayo Clinic in November 2021. (Dkt. #15-4, at 115-117 (AR-001023-1025).)
Compared to his 2020 evaluation by Dr. Alden, Dr. Powell concluded that there was “not
compelling evidence to suggest cognitive decline.” (Id. at 116 (AR-001024).) Specifically,
Dr. Powell concluded that Lehnen’s cognitive weaknesses were “nonspecific and could be
explained by his known medical problems,” including ADD, PPPD, and his psychiatric
history. (Id.)
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Lehnen also had a brain MRI at the Mayo Clinic in November 2021, which found
“mild generalized age-related cerebral volume loss.” (Dkt. #15-4, at 118 (AR-001026).)
Dr. Christine Cliatt-Brown concluded that Lehnen’s brain was “otherwise normal without
evidence of mass lesions or diffusion restriction.” (Id.) However, she also noted that
Lehnen’s “hippocampal volumes” were at the 15th percentile for his age, compared with
the 36th percentile for age after testing done in September 2020. (Id. at 119 (AR-
001027).) When discussing the November 2021 test results with Lehnen, Dr. Cliatt-
Brown advised that neuropsychological testing disclosed “no clear evidence of decline
[when] compared to 2020 and [his] performance in other areas was normal,” although one
test showed “some mild and patchy hypometabolism without a clear pattern that would be
diagnostic of a neurodegenerative disease.” (Id. at 105 (AR-001013).) Given that the MRI
of his brain was “normal with no significant pattern of atrophy,” therefore, she concluded
that Lehnen did not meet the criteria for mild cognitive impairment. (Id.) Dr. Cliatt-
Brown similarly found that Lehnen’s PPPD, insomnia, and depression may be contributing
factors to his cognitive impairments, while acknowledging that “very early
neurodegenerative disease [could not] be entirely ruled out.” (Id.) Therefore, she
recommended repeat testing in 12-18 months. (Id.) She also recommended that Lehnen
enroll in the Mayo Clinic’s “NAPS study” as a way to monitor his progression over time,
as well as monitoring his sleep disorder.11 (Id.)
11 The NAPS study is a clinical trial by the “North American Prodromal Synucleinopathy (NAPS)
Consortium” of persons with Rapid Eye Movement (REM) Sleep Behavior Disorder, otherwise
known as RBD. (Tataryn Decl. Ex. 6 (dkt. #19-6) at 2.) Synucleinopathy is a group of
neurodegenerative disorders, including multiple system atrophy, Lewy Body Dementia, and
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3. Hand Pain
As noted above, Lehnen presented records from Dr. Roberts, who treated Lehnen
in April 2020 for cervical arthritis and hand stiffness due to arthritis, among other
conditions. (Dkt. #15-1, at 290-91 (AR-000289-290).) In December 2020, Lehnen saw
Dr. Feyereisn at the Mayo Clinic for joint pain, noting that his hands bothered him the
most. (Dkt. #15-3, at 142 (AR-000747).) On December 15, 2020, Lehnen also
underwent an electromyogram (“EMG”) that was “normal” with “no electrophysiologic
evidence of a focal neuropathy, plexopathy, or cervical radiculopathy in either upper
extremity.” (Dkt. #15-3, at 140 (AR-000745).) X-rays taken the same day showed
“[s]light degenerative changes of the wrists,” but both hands were “otherwise negative.”
(Dkt. #15-3, at 183 (AR-000788).)
On December 17, 2020, Dr. Jurrison, an orthopedic surgeon at Mayo Clinic, also
examined Lehnen’s wrists and hands, observing no significant swelling or deformity. (Dkt.
#15-5, at 189 (AR-001406).) While noting that Lehnen’s EMG was negative, Dr. Jurrison
also noted that “he [did] have provocative maneuvers for carpal tunnel syndrome
bilaterally.” (Id. at 190 (AR-001407).) Accordingly, she suggested soft tissue imaging
because bilateral carpal tunnel syndrome can occur in the context of inflammatory arthritis
or an “infiltrative disease” in the wrist. (Id.)
On December 30, 2020, Lehnen attended outpatient hand therapy for
“conservative management of arthritis and possible carpal tunnel syndrome.” (Dkt. #15-
Parkinson’s disease, that are characterized by the aggregation of a-synuclein to form inclusion
bodies. Dorland’s Medical Dictionary 1827 (33rd ed. 2020).
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3, at 92-95 (AR-000697-700).) In addition to sessions with a therapist, he was measured
for arthritis gloves to address his complaints of swelling and stiffness in the morning. (Id.
at 94 (AR-000699).) He was also given therapeutic exercises to perform at home to make
his hands stronger and to soothe nerve pain and instructed to use contrast baths, paraffin
bath, and a hot pack. (Id.) Lehnen was further given “resting orthoses” or splints to wear
on both hands at night and during the day as needed. (Dkt. #15-3, at 85 (AR-000690).)
Dr. Jurrison evaluated Lehnen again on March 22, 2022, noting that Lehnen’s grip
strength had decreased and was “38/38 kg compared to the previous visit when it was 52/54
kg.” (Dkt. #15-5, at 265 (AR-001482).) Still, Dr. Jurrison observed that he did “not have
the same provocative maneuvers for carpal tunnel syndrome, other than a positive Phalen
on the right after [a] period of time.”12 (Id.) Dr. Jurrison also noted that he did “have
changes in the palm of early Dupuytren’s contracture,” despite his EMG being “negative
or normal.” (Id.) Given that Lehnen described symptoms typical of carpal tunnel
syndrome, therefore, Dr. Jurrison thought “it would be reasonable for him to be evaluated
by [a] hand surgeon to see if there is a role for surgery either for the carpal tunnel symptoms
or the Dupuytren’s contracture.” (Dkt. #15-6, at 111(AR-001630).) She also suggested
measuring his typing efficiency and other office work efficiencies in occupational therapy.
(Id.)
12 The appearance of numbness or paresthesia within 30 to 60 seconds during the “Phalen test” is
a positive sign for carpal tunnel syndrome. Dorland’s Illustrated Medical Dictionary 1685 (33rd
ed. 2020).
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4. Neck Pain
In December 2020, Lehnen also underwent diagnostic testing at the Mayo Clinic
for complaints of neck pain. An MRI of Lehnen’s cervical spine disclosed “mild-to-
moderate degrees of multilevel central canal stenosis being most significant at the L4-5
level[.]” (Dkt. #15-3, at 174 (AR-000779).) Worse, cervical imaging by Dr. Mehrsheed
Sinaki disclosed “[a]dvanced degenerative arthritis [of the] cervical spine with
degenerative disc disease [at] C3-C6 interspaces.” (Dkt. #15-3, at 129 (AR-000734).)
Further, Dr. Allen Aksamit Jr., a neurologist, reviewed Lehnen’s cervical spine x-ray and
confirmed that it showed “substantial degenerative disk disease at C3-C6 with mild
subluxation and slight cervical scoliosis from degenerative joint disease.” (Dkt. #15-3, at
137 (AR-000742).)
On December 23, 2020, Lehnen next saw Gary Kadlec, a certified nurse practitioner
(“CNP”) at the Mayo Clinic, to follow up on the MRI, which revealed cervical spondylosis,
without myelopathy, and axial neck pain. (Dkt. #15-3, at 99-102 (AR-00704-707).)
Because physical therapy and oral pain medication had not been beneficial, Lehnen elected
to pursue therapeutic bilateral C2-3 facet injections. (Id. at 99 (AR0000704).) On
December 29, 2020, Lehnen received a cervical spine injection at C2-3 to treat his neck
pain. (Id. at 87 (AR-000692).)
Lehnen saw CNP Kadlec again at the Mayo Clinic on November 1, 2021, after he
complained of worsening neck pain. (Dkt. #15-4, at 153 (AR-001061).) On examination,
Kadlec did not detect any “focal weaknesses or upper motor neuron changes,” but ordered
an updated cervical MRI. (Id.) During the appointment, Lehnen asked about repeating
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the C2-3 injections because his current neck pain was similar to the pain that responded
to those injections the previous year. (Id.)
On November 2, 2021, CNP Kadlec reviewed Lehnen’s cervical MRI, which again
showed “multilevel degenerative disk and facet changes.” (Dkt. #15-4, at 143 (AR-
001051).) At that time, Kadlec’s assessment was “cervical spondylosis without
myelopathy.” (Id.) Although Kadlec discussed surgical consultation as an option, Lehnen
indicated that he wished to avoid surgical intervention. (Id.) Kadlec agreed to see Lehnen
again in one year for a clinical recheck for any signs or symptoms suggestive of progressive
neurologic deterioration. (Id.) In the meantime, Kadlec discussed “physical therapy,
activity modifications, or consideration for repeat therapeutic injections.” (Id.) Lehnen
indicated that he would also like to pursue repeat injections, which Kadlec recommended
at C2-3 and the C7-T1 facet. (Id. at 143-44 (AR-001051-1052).)
During an examination on May 6, 2022, CPN Kadlec noted that Lehnen had been
unable to continue having injections to treat his axial neck pain, which was in the “posterior
cervical region,” because his insurance provider would not cover this treatment. (Dkt. #15-
5, at 272 (AR-001489).) Kadlec recommended that Lehnen avoid “prolonged cervical
flexion and extension” for more than 3 to 5 minutes. (Id. at 274 (AR-001491).) Kadlec
also recommended that Lehnen avoid prolonged sitting and change positions every 60
minutes, followed by “at least a 30-minute break before resuming . . . use of a computer.”
(Id.)
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5. Sleep Disorders
On December 16, 2020, Lehnen also saw Dr. Diego Zaquera Carvalho, a sleep
medicine specialist, at the Mayo Clinic. (Dkt. #15-3, at 131-35 (AR-000736-740).)
During the day, Lehnen attributed 75% of his impairment to fatigue, both physical and
mental, and 25% to sleepiness. (Id. at 131 (AR-000736).) Dr. Carvalho concurred with a
previous diagnosis of RLS, which likely contributed to chronic insomnia. (Id. at 134 (AR-
000739).) Dr. Carvalho also thought that Lehnen had symptoms of “sleep disordered
breathing” that were “concerning.” (Id. at 135 (AR-000740).) Dr. Carvalho recommended
a “sleep study” to evaluate him for possible obstructive sleep apnea (“OSA”). (Id.) Dr.
Carvalho also observed some involuntary movements in Lehnen’s left hand and decreased
arm swing on the left, which could suggest the possibility of “early neurodegenerative
process.” (Id.) Dr. Carvalho further expressed concern that Lehnen’s subjective complaints
of cognitive decline could be secondary to his depression, anxiety and ADD, but
recommended additional testing to determine if he suffered from REM sleep behavior
disorder or RBD. (Id.)
At a follow-up examination on December 29, 2020, Dr. Carvalho noted that
Lehnen’s ferritin level was low and ordered an iron infusion. (Dkt. #15-3, at 88 (AR-
000693).) Dr. Carvalho also noted that Lehnen was already benefiting from a prescription
for Lyrica. (Id.) Considering the results of the sleep study, Dr. Carvalho concluded that
Lehnen had “[m]ild, positional, mixed obstructive and central sleep apnea.” (Dkt. #15-3,
at 88-89 (AR-000693-694).) Dr. Carvalho discussed “positional therapy” and
recommended an “apnea t-shirt with [a] tennis ball” called the “Slumberbump.” (Id. at 89
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(AR-000694).) Dr. Carvalho also recommended a device that vibrates every time a patient
goes on his back until he moves to the side or a prone position. (Id.)
After this examination, Dr. Carvalho formally diagnosed “idiopathic RBD,” and
recommended taking Melatonin (10 mg). (Id. at 89-90 (AR-000694-695).) He also spoke
to Lehnen about the risk of developing “different phenotypes of synucleinopathies, in
particular[] Parkinson’s disease, but potentially Dementia of Lew Body, multiple system
atrophy, and less likely, pure autonomic failure.” (Id. at 90 (AR-000695).)
At his next visit with Dr. Carvalho, Lehnen reported an improvement with Lyrica,
which resolved 90% of his RLS symptoms. (Dkt. #15-4, at 176 (AR-001084).) He also
reported an improvement with symptoms of RBD after taking 20mg of Melatonin at
bedtime. (Id. at 177 (AR-001085).) Likewise, he reported sleeping with a pillow between
his legs, preventing him from turning over in his sleep, which improved the symptoms of
OSA. (Id.) Unfortunately, although Lehnen reported having an easier time falling asleep,
he continued to have frequent awakenings, often because of neck pain, with difficulty
falling back asleep. (Id. at 176 (AR-001084).) Dr. Carvalho then prescribed Sonata (10
mg) for nights he had trouble, cautioning Lehnen not to drive for at least four hours after
taking that medication. (Id. at 178 (AR-001086).)
Lehnen was seen at the Mayo Clinic again on November 2, 2021, by Dr. Kara
Dupuy-McCauley, for complaints related to RLS. (Dkt. #15-4, at 135 (AR-001043).) Dr.
Dupuy-McCauley noted that his RBD was under good control on 20mg of melatonin
nightly. (Id. at 136 (AR-001044).) She also noted that his chronic pain due to cervical
spondylosis was improving due to sleeping in a non-supine position as part of his positional
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therapy to remedy OSA. (Id. at 135-36 (AR-001043-1044).) Dr. Dupuy-McCauley then
increased Lehnen’s dosage of pregabalin to address his symptoms of RLS, recommending
that he follow-up with Dr. Carvalho or her in a couple of months. (Id. at 136 (AR-
001044).)
Brenda Lehnen also reported that lack of sleep affected her husband’s ability to
function and that he had at most three or four “normal” nights of sleep per month in 2022.
(Dkt.#15-5, at 139, 141 (AR-001356, 001358).) When Lehnen next saw Dr. Dupuy-
McCauley again on July 13, 2022, he reported improvement, but noted that RLS
symptoms continued to interfere with his sleep. (Dkt. #15-7, at 274 (AR-002067).) Dr.
Dupuy-McCauley determined that Lehnen’s RLS, which was the “primary etiology of [his]
sleep disturbance,” was “not under control” and suggested adjusting his medication
regimen. (Id. at 275 (AR-002068).)
C. Physician Opinions And Restrictions
After Unum terminated his LTD benefits in February 2022, based only on mental
or behavioral health issues, Lehnen filed an appeal that included opinions from several
treating providers supporting restrictions and limitations based on his physical condition.
(Dkt. #17, at 14-17.) Specifically, Dr. Feyereisn, who treated Lehnen at Mayo Clinic,
completed a Disability Accommodation Request and Medical Statement form on January
15, 2021. Dr. Feyereisn indicated that Lehnen had a physical or mental impairment based
on the following conditions:
Patient has idiopathic REM sleep behavior disorder. He has [PPPD] causing
lightheadedness. He has mixed obstructive and central sleep apnea. He does
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have [degenerative disc disease] affecting his neck and hands and a history
of PTSD.
(Dkt. #15-5, at 125-26 (AR-001342-1343).) When compared to the average person, Dr.
Feyereisn indicated that Lehnen’s “[h]igh level executive function” was impaired, adding
that this was a “major concern.” (Id.) Dr. Feyereisn explained that the “[l]argest concern
is [Lehnen’s] executive performance ability due to his REM sleep behavior disorder that
has an associated correlation with dementia” and was “[s]uspected to worsen with time.”
(Id.) Dr. Feyereisn added further that Lehnen’s degenerative disc disease made extended
keyboard work a “problem,” and that Lehnen’s PTSD interfered with his ability to perform
under stress, which was also likely to be impaired. (Id.) In Dr. Feyereisn’s opinion, these
impairments were expected to be “[l]ifelong.” (Id.) While Dr. Feyereisn concluded that
Lehnen could work “in a supervised capacity,” his “level of performance of executive
function needs to be observed.” (Id.)
Dr. McCoy, who was Lehnen’s treating psychiatrist for over 10 years, similarly
opined p that, in addition to his assessment of Lehnen’s disabling mental health conditions,
he also observed a decline in Lehnen’s mental cognition that would prevent his going back
to his prior occupation,
Mr. Lehnen has a complex case. His symptoms are multifactorial with several
conditions contributing to his disability picture. I reviewed Mayo Clinic
records stating he scored 21/30 on the Montreal Cognitive Assessment
(MOCA). He had a neuropsychological test[] which showed mild cognitive
inefficiency on measures of verbal fluency, as well as memory for semantically
meaningful store[ies] and geometric designs. Mayo physicians have assessed
him with cognitive disorder and cognitive decline. Mayo’s assessments are
consistent with my observations and assessment of him, which include
Attention Deficit Hyperactivity Disorder, predominantly inattentive type.
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(Dkt. #15-5, at 127 (AR-001344).) Noting further that Lehnen was employed “in a high
stress, fast-paced environment requiring continuous computer usage for hours at a time
using multiple screens in order for him to respond to unfolding crises as well as create the
many computer-based reports his employer and clients required,” Dr. McCoy asserted that
Lehnen was unable to keep up with his job duties due to the following conditions:
[D]ecreasing cognitive abilities, his [PPPD] visual disturbances making
extensive computer usage impossible, his sleep disorders which prevent[] him
from getting restful sleep necessary to do his job, and his inability to keep up
with the keyboarding demands of his job due to his hand and neck issues.
(Id. at 128 (AR-001345).) Accordingly, Dr. McCoy endorsed the same work restrictions
recommended articulated by Dr. Feyereisn, concluding that it would be “against [his]
strong medical advice for Mr. Lehnen to return to his prior job as a Senior Account
Executive.” (Id.)
In addition, Dr. Jurrison’s referral of Lehnen for an Occupational Therapy
Assessment for his complaints of soreness, stiffness, and swelling in his hands produced
further support for growing physical limitations on his capacity for work, especially under
stress during long periods before computer screens. (Dkt. #15-5, at 268 (AR-001485).)
During that evaluation on April 7, 2022, Lehnen reported that his ability to type was
“significantly” reduced because he found it hard to “feel the keys” on the keyboard and his
hands felt increasingly stiff as the day progressed. (Id.) Although his grip strength was
above average, Lehnen scored below average on the Purdue Pegboard Test with diminished
sensation in all of his fingers. (Id. at 269 (AR-001486).) On a typing test, Lehnen
performed “significantly slower than the average adult who can type at 35-50 [words per
minute].” (Id. at 270 (AR-001487).) The occupational therapist further noted that
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Lehnen could only type with his first three fingers, and he needed to view the keys
frequently while moving his neck from flexion to extension to view the keyboard. (Id.)
The occupational therapist found that Lehnen also had decreased sensation and increased
swelling in his right hand after typing only 30 minutes and increased swelling in his left
hand after 60 minutes of typing. (Id.)
As a result, the occupational therapist recommended that Lehnen rarely type with
his right hand and only occasionally type with his left hand. (Id.) She further found that
Lehnen would need extra time to complete typing tasks and recommended occupational
therapy as well as “ergonomic modifications” to enable him to return to work. (Id.)
Thereafter, on April 8, 2022, Dr. Jurrison provided a letter on Lehnen’s behalf, noting that
he was undergoing additional evaluation for symptoms of arthritis in his hands that
interfere with his ability to type for long periods of time. (Dkt. #15-5, at 129 (AR-
001346).) Dr. Jurrison recommended “restricting typing to 20-30 minutes at a time with
10-30 minute breaks in between sessions,” although acknowledging that it was possible his
condition could improve in the future, depending on a completed evaluation. (Id.)
On April 7, 2022, Lehnen also had an orthopedic surgery hand evaluation by Dr.
David Dennison, who noted that Lehnen’s “x-rays show mild degenerative changes and his
previous EMG was basically negative.” (Dkt. #15-7, at 239 (AR-002032).) Dr. Dennison
recommended additional imaging and a repeat EMG. (Id. at 240 (AR-002033).)
Depending on whether the results indicated carpal tunnel syndrome, Dr. Dennison
thought that Lehnen would also be a good candidate for a trial of corticosteroid injections.
(Id.)
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Finally, on April 18, 2022, an EMG of Lehnen’s upper extremities was “normal,”
with no evidence of “right cervical radiculopathy or upper limb mononeuropathy on either
side.” (Dkt. #15-7, at 254 (AR-002047).) However, an ultrasound of Lehnen’s wrists
demonstrated “mild fusiform hypoechoic thickening of both median nerves within the
carpal tunnels, left greater than right.” (Id. at 256 (AR-002049).) The reviewing physician
determined that these findings were “compatible with carpal tunnel syndrome[.]” (Id. at
257 (AR-002050).)
D. Vocational Expert
In support of his appeal from Unum’s denial of continuing LTD benefits, Lehnen
also offered an “Independent Employability Assessment” completed by certified
rehabilitation counselor, Ken Askew, on July 13, 2022. (Dkt. #15-5, at 130-137 (AR-
001347-1354).) Askew reviewed the Plan, Lehnen’s job description as a Senior Account
Executive with Beacon Health, records from Unum, Lehnen’s medical records from Mayo
Clinic, and Dr. McCoy. (Id. at 130 (AR-001347).) Askew also conducted a “diagnostic
interview,” observing that Lehnen was “noticeably fatigued” and “visibly tired at the end.”
(Id. at 135 (AR-001352).) (Id.) While agreeing with Unum’s assessment of the cognitive
abilities required to perform Lehnen’s position, which required him to “be able to speak
and write persuasively to influence other[s] and to make independent judgement and
decisions,” Askew “strongly disagreed” with the vocational analysis done by Unum that
determined Lehnen’s job required only “occasional reaching, handling, fingering and
keyboard use,” as does this court. (Id. at 135-36 (AR-001352-53).)
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Specifically, based on his review of the medical records and his interview with
Lehnen, Askew concluded that he was not “physically or mentally capable of working in
his previous capacity as a Senior Account Executive.” (Id.)
Mr. Lehnen’s job required extensive computer work and high cognitive
function. The medical records I reviewed state clearly that Mr. Lehnen
should not spend significant time keyboarding or scrolling a computer screen.
His essential job functions as a Senior Account Executive do not match the
restrictions and limitations known to persist from his multifactorial medical
status. Mr. Lehnen and his medical providers are noting decreased cognitive
function and regular neuropsychological testing will be scheduled. The job
description clearly states that a person working as a Senior Account Executive
requires expert and proficient knowledge, skill and ability in Microsoft Office
and interpersonal skills and written communication skills. The job
description also states that the Senior Account Executive must be able to
work independently and make sound decisions on accounts. Mr. Lehnen
and his medical providers don’t feel he can work independently without
someone supervising his job performance. Dr. Feyereisn also stated that Mr.
Lehnen’s job performance may be impaired when he is under stress. Given
the high level of stress of his job, the increased stress of a client experiencing
a traumatic crisis, and the stress associated with his medical conditions, he is
under significant stress most of the day.
(Id. at 136-37 (AR-001354-1355).) In Askew’s opinion, the job description for Lehnen’s
work as a Senior Account Executive at Beacon included duties that would normally be
performed in the industry in which Lehnen worked as seen in the national economy. (Id.
at 137 (AR-001355).) Askew added that “in our contemporary labor market the
occupation would require frequent keyboarding and continuous computer screen time.”
(Id.) Askew concluded that Lehnen’s “employability is below the threshold for disability
as defined in the Unum Long Term Disability contract” because he was “not medically or
functionally capable of returning to work in his regular occupation[.]” (Id.) Although not
normally inclined to give vocational opinions great weight, based on the great
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preponderance of the medical evidence in this case, the court finds Mr. Askew’s opinion
fairly compelling here.
E. Disability Determination
As noted above, the SSA concluded that Lehnen was disabled and awarded benefits
retroactive to April 2020, when he became unable to work due to symptoms of PPPD,
anxiety, depression, and bilateral hand pain. (Dkt. #15-7, at 97 (AR-001890).)
Specifically, the SSA determined that Lehnen was disabled primarily as the result of
disorders of the skeletal spine. (Id. at 107 (AR-001900).) The SSA also found that Lehnen
suffered from the following other severe medical impairments: abnormality of major joints
in an extremity; carpal tunnel syndrome; and vertiginous syndromes and other disorders
of the vestibular system. (Id.) In addition, the SSA found that Lehnen had severe
depression, anxiety, and trauma or stressor disorders. (Id.)
While an SSA finding of disability can be evidence that a claimant is disabled, it is
not entitled to dispositive weight and is not binding on employers under ERISA. See
Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 772-73 (7th Cir. 2010) (noting that a plan
“is not forever bound by a Social Security determination of disability”); Love v. Nat’l City
Corp. Welfare Benefits Plan, 574 F.3d 392, 398 (7th Cir. 2009) (the Seventh Circuit has
“repeatedly emphasized that the SSA’s determination of disability is not binding on
employers under ERISA”). Even so, in making its own, independent assessment, the court
finds the SSA’s decision persuasive because the disability determination is bolstered by
additional evidence presented by Lehnen. Notably, the SSA determined that Lehnen was
totally disabled without even considering: the Occupational Therapy Assessment that
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evaluated his functional capacity and typing ability on April 7, 2022; the letters from three
treating physicians who recommended restrictions (Dr. Feyereisn, Dr. Jurrison, and Dr.
McCoy); the restrictions recommended by CNP Kadlec in May 2022; or the expert
vocational report from Askew on July 13, 2022. (Dkt. #15-7, at 92 (AR-001885).) In
particular, the Occupational Therapy Assessment, which included functional capacity
testing of Lehnen’s hands, recommended that he be restricted from typing and rarely use
his right hand to type. (Dkt. #15-5, at 270 (AR-001489).) The observations made by the
occupational therapist about Lehnen’s typing posture, and the likelihood that it
contributed to his neck and hand pain, are also consistent with those made by CNP Kadlec,
who recommended that Lehnen avoid prolonged extension of his neck for more than 3 to
5 minutes. As a functional capacity evaluation,13 the Occupational Therapy Assessment is
also objective evidence of the severity of Lehnen’s limitations, which are directly related to
his ability to sit for prolonged periods and work on a computer with multiple monitors for
eight hours per day, one of the main requirements of his job. Holmstrom, 615 F.3d at 770.
Moreover, Unum has offered no reason to discredit the opinions by Dr. Feyereisn
or vocational expert Askew that Lehnen’s physical ability to perform his executive-level
occupation independently, which required constant computer use under extremely stressful
and often emergent conditions, was impaired by advanced degenerative arthritis and severe
degenerative disc disease of the cervical spine. Those opinions are also supported by x-rays
and imaging in medical records from evaluations at the Mayo Clinic dating back to
13 A “functional capacity examination consists of a battery of tests to assess a patient’s current
physical and functional abilities and potential to return to work.” Marantz v. Permanente Med. Group,
Inc. Long Term Disability Plan, 687 F.3d 320, 331 (7th Cir. 2012).
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December 2020. (Dkt. #15-3, at 129 (AR-000734), 137 (AR-000742), 174 (AR-000779);
Dkt. #15-4, at 143 (AR-001051).) While Unum’s consulting physician, Dr. Norris,
concluded Lehnen’s neck pain was successfully treated with injections, the medical records
from Mayo Clinic show that Lehnen was unable to continue receiving those injections
because they were not covered by his insurance, meaning his symptoms needed to be
managed by activity modification, including the restrictions recommended by CNP Kadlec.
(Dkt. #15-5, at 272, 274 (AR-001489, 1491).) Unum provides no basis to discredit this
evidence of Lehnen’s physical impairment, which in Kadlec’s opinion precludes him from
prolonged sitting or computer work without a thirty-minute break every hour, which also
precludes his return to his past position with Beacon. (Id. at 274 (AR-001491).) Similarly,
Dr. Feyereisn concluded that Lehnen’s degenerative disk disease interfered with his ability
to use a computer, meaning he could not work unsupervised or independently due to his
reduced executive function. (Id. at 126 (AR-001343).)
Finally, beyond the evidence of Lehnen’s significant physical impairments, the court
is required to consider how those impairments affect Lehnen’s cognitive ability to perform
his occupation. See Scanlon v. Life Ins. Co. of N. Am., 81 F.4th 672, 680 (7th Cir. 2023)
(“[T]he district court must specifically address [the claimant’s] ability to perform the
cognitive aspects of his job with the limitations identified in the record.”). Lehnen’s wife
Brenda also credibly reports that by the Spring of 2019, his physical impairments from
PPPD, degenerative disk disease, deteriorating hands, and sleep disorders were causing him
to struggle to “keep up cognitively” with the demands of his job, which in turn caused
anxiety about his job performance in an already inherently stressful position. (Dkt. #15-
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5, at 138 (AR-001355).) In addition to memory issues, she provided numerous, specific
examples of how the constant computer usage required for his work caused him to become
dizzy and nauseous, including instances in which he fell as a result of these symptoms and
others in which he was afraid to drive. (Id. at 139-141 (AR-001356-1358).)
Although there is mixed medical evidence of the extent of Lehnen’s present
cognitive impairment, Dr. Cliatt-Brown considered his symptoms in connection with his
other medical issues and could not rule out that he was experiencing very early
neurodegenerative disease, such as Lewy Body Dementia, prompting her to enroll him in
a clinical trial to monitor his progression alongside his sleep disorder, which has a
correlation with dementia. (Dkt. #15-4, at 105 (AR-001013).) None of Unum’s
consultants acknowledged the evaluation by Dr. Cliatt-Brown or the link between sleep
disorders that can signal neurodegenerative disorders, including Parkinson’s disease, Lewy
Body Dementia, or other forms of cognitive impairment. (Tataryn Decl. Ex. 7 (dkt. #19-
7) at 2.) Similarly, none of Unum’s consultants acknowledged the evaluations by Dr.
Carvalho or Dr. Dupuy-McCauley regarding Lehnen’s chronic RLS, which required
increasing amounts of medication to address and, as of 2022, remained uncontrolled.
(Dkt. #15-7, at 274-75 (AR-002067-2068).) As both Dr. Feyereisn and Askew observed,
however, Lehnen’s sleep disorders are a medical condition also affecting his ability to
perform at a high level under significant, sustained stress. (Dkt. #15-5, at 126, 134 (AR-
001343, AR-001351).)
Dr. McCoy, who treated Lehnen for more than ten years, also observed symptoms
of cognitive decline that were made worse by Lehnen’s multiple medical issues. (Dkt. #15-
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5, at 127 (AR-001344).) It is true that an ERISA plan administrator is not required to
afford a treating physician’s opinion with special deference when making a disability
determination. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003). At the
same time, none of Unum’s medical or psychiatric consultants who reviewed Lehnen’s
records ever examined him and their opinions are discounted for that reason. Dr. Norris,
in particular, found that Lehnen’s recurrent symptoms of PPPD, which were exacerbated
by constant scrolling on multiple computer screens, were unsupported because Lehnen
could reportedly still ride a bicycle, while Dr. Norris includes no reference to medical
records in support of this purported ability. (Dkt. #15-6, at 49 (AR-001568).) To the
contrary, Lehnen acknowledged during his lengthy, in-person diagnostic interview with
Askew that he previously enjoyed competitive cycling, but had been unable to do much
bike riding at all over the past several years because his hands and neck caused him
problems while biking and also could trigger his PPPD symptoms. (Dkt. #15-5, at 135
(AR-001352).)
Both the report from Dr. Norris and Unum’s psychiatric consultant, Dr. Brown,
also conveniently and selectively ignore objective test results from specialists at Mayo
Clinic who treated Lehnen repeatedly for his complaints of pain and cognitive impairment,
whether from possible early dementia or from exhaustion as the result of his assortment of
sleep disorders. In this court’s view, Lehnen’s repeated reports of pain and cognitive
difficulties, made and credited during multiple comprehensive evaluations by specialists
while pursuing treatment at the Mayo Clinic, are persuasive evidence of the symptoms he
was experiencing, whether or not substantiated by objective test results. See Holmstrom,
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615 F.3d at 761 (noting the difficulty presented by claims for disability insurance by people
with serious and painful conditions that do not have objectively measurable symptoms).
During those visits, Lehnen consistently described how his medical conditions caused
significant functional limitations that frustrated his ability to work as a Senior Account
Executive providing crisis management for clients’ employees via constant computer usage.
Thus, Lehnen’s self-reports are significant and probative evidence of his inability to
perform the material and substantial duties of his occupation, as described above. Cf. Diaz,
499 F.3d at 646 (claimant’s pursuit of extensive treatment including heavy medication
and repeated surgical procedures “supports an inference that his pain, though hard to
explain by reference to physical symptoms, was disabling”).
Taking the entire administrative record into account, the court holds that Lehnen
has shown by a preponderance of the evidence that due to his physical impairments,
including their impact on his ability to function cognitively at a high level under stressful
conditions, he is unable to perform the material and substantial duties of his regular, past
occupation and, therefore, has been disabled under the Plan’s definition since before his
LTD benefits were terminated on July 18, 2022. Accordingly, Lehnen is entitled to a
judgment in his favor and is entitled to continuing LTD benefits. As requested by Lehnen,
the court will award Lehnen retroactive monthly benefits under the Plan dating back to
July 19, 2022. (Dkt. #1, at 24.) Unum will be directed to reinstate his claim and
commence monthly benefits going forward from the date of judgment according to the
terms of the Plan, as long as he remains eligible for his physical limitations as discussed in
this opinion. (Id. at 25.)
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F. Interest, Attorneys’ Fees, and Costs
Lehnen also seeks an award of interest. There is a “presumption in favor of
prejudgment interest awards” for ERISA cases. Fritcher v. Health Care Serv. Corp., 301 F.3d
811, 820 (7th Cir. 2002) (internal quotation marks omitted). Whether to award an ERISA
plaintiff prejudgment interest is “a question of fairness, lying within the court’s sound
discretion, to be answered by balancing the equities.” Id. The court concludes that an
award of prejudgment interest is appropriate here. Because ERISA contains no statutory
prejudgment interest rate, the Seventh Circuit suggests using the prime rate for fixing
prejudgment interest. Id. The average of the monthly prime rates from July 2022 (when
Unum stopped paying benefits) through February 2026 is 7.47%. Accordingly, the court
concludes that Lehnen is also entitled to prejudgment interest calculated at this rate on the
retroactive monthly benefits that he is owed under the Plan.
Lehnen further seeks attorneys’ fees and costs under ERISA, which “allows a court,
in its discretion, to award ‘a reasonable attorney fee and costs of action to either party.’”
Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 505
(7th Cir. 2011) (quoting 29 U.S.C. § 1132(g)(1)). In making a determination about
attorneys’ fees under ERISA, the court must ask whether the losing party’s position was
“substantially justified and taken in good faith, or was that party simply out to harass its
opponent?” Id. at 506 (internal quotations omitted). Because neither party has provided
briefing on this issue, the court reserves ruling on Lehnen’s request for attorneys’ fees and
costs. Lehnen may file a separate motion for attorneys’ fees and costs within 30 days of
the date of this order, supported by the lawyer’s invoices and billing records. Defendant
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may file an opposition 21 days thereafter, with a similar production of its lawyers’ invoices
and billing records.
II. Unum’s Counterclaim for Overpayment of Benefits
As noted, Unum has also filed a counterclaim under ERISA § 502(a)(3), codified as
amended at 29 U.S.C. § 1132(a)(3), which allows a fiduciary to bring an action to obtain
“appropriate equitable relief . . . to enforce any provisions of this subchapter or the terms
of the plan[.]” This provision authorizes only “those categories of relief that were typically
available in equity.” Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 361 (2006)
(emphasis in original). Such relief includes equitable liens on “particular funds or property
in the defendant’s possession.” Id. at 362 (quoting Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 213 (2002)). By contrast, an action against the general assets of
the participant is a legal action to impose personal liability, which is not authorized under
§ 1132(a)(3). Id. at 363.
Lehnen does not dispute receiving an overpayment of $27,312.70 in LTD benefits
under the Plan after he received an award of SSDI benefits retroactive to April 2020.
Lehnen also does not dispute that he has not repaid this amount despite expressly agreeing
to do so when he signed the Benefit Payment Option Agreement, which authorizes Unum
to seek “appropriate equitable relief,” including equitable restitution and an equitable lien
by agreement. (Dkt. #11-1, at 1.) An equitable lien by agreement is a type of equitable
lien created by an agreement to convey a particular fund to another party. Montanile v. Bd.
of Trustees of Nat’l Elevator Indus. Health Benefit Plan, 577 U.S. 136, 143 (2016). In an
ERISA case, a claim to enforce such a lien is equitable because the benefit plan “could rely
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on a familiar rule of equity to collect -- specifically, the rule that a contract to convey a
specific object even before it is acquitted will make the contractor a trustee.” Id. (internal
quotation marks and alteration omitted). Thus, under the terms of the plan and principles
of contract law, Lehnen is obligated to reimburse Unum for any overpayment of benefits.
Central States, Se. & Sw. Areas Health & Welfare Fund, 966 F.3d 655, 658 (7th Cir. 2020).
Lehnen argues creatively, if unsuccessfully, that Unum is not entitled to equitable
relief here because it cannot prove that the funds remain in his possession and cannot,
therefore, attach a lien. (Dkt. #17, at 24-25.) In support, Lehnen provides a declaration
explaining that he received no funds from Unum after February 2022, and had to use his
SSDI benefits to pay living expenses and legal fees. (Dkt. #18.) He argues, therefore, that
the funds he received from Social Security have been dissipated and cannot be identified
with particularity for purposes of a lien. (Dkt. #17, at 25.)
Addressing the dissipation of settlement proceeds by an ERISA plan participant, the
U.S. Supreme Court has held that if the sought-after funds have been entirely dissipated,
the viability of an equitable lien depends on whether the original funds can be traced to
particular items. Montanile, 577 U.S. at 139. If so, then a constructive trust would
continue to operate against the items bought with the proceeds. Id. If not, however, and
the proceeds have been entirely dissipated on nontraceable items, the equitable lien is
eliminated. Id. This is because any further action to collect on the proceeds would be
legal, not equitable, in nature once the lien has been eliminated, and in that event,
§ 1132(a)(3) would no longer authorize an action to recover, as it is explicitly limited to
“equitable relief.” Id. at 145-46. As the Supreme Court explained, equity depends on the
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principle that the court can “lay hold of” the property, and if the property is gone (without
being replaced by identifiable assets), no equitable remedy remains. Id. This rule applies
to equitable liens by agreement, as well as other types of equitable liens. Id. at 146.
Unum argues that Lehnen’s defense of dissipation should be disregarded because,
by signing the Benefit Payment Option Agreement, he not only agreed to reimburse Unum
for any overpayment of benefits, but he also waived any legal or equitable defenses to
Unum’s right to enforce the terms of that Agreement. (Dkt. #11-1, at 1; Dkt. #24, at 40.)
Unum notes further that Lehnen failed to plead any defenses, and has forfeited his
dissipation defense as a result.14 (Dkt. #24, at 40.)
Even assuming that Lehnen’s waiver is operable -- and Lehnen advances no reason
it should not be -- or that, as Unum claims, he has forfeited this defense, it appears to make
little difference in this case. Irrespective of the existence of any funds received from SSDI,
the Benefit Payment Option Agreement grants Unum the right to impose a lien on any
“real or personal property in an amount equal to the overpayment.” (Dkt #11-1, at 1.)
Likewise, Unum may recover the overpayment by suspending further payment of benefits.
Northcutt v. General Motors Hourly-Rate Employees Pension Plan, 467 F.3d 1031, 1037-38 (7th
Cir. 2006). Specifically, the Benefit Payment Option Agreement that Lehnen signed as a
condition for receiving unreduced benefits expressly allows Unum to recoup any
overpayment from “future disability payments,” including any minimum benefit owed
14 A defendant’s failure to plead an affirmative defense may result in waiver or forfeiture if the
defendant merely failed to preserve the defense by pleading it. Reed v. Columbia St. Mary’s Hosp.,
915 F.3d 473, 478 (7th Cir. 2019). However, Unum does not establish that dissipation of funds
qualifies as an affirmative defense that must be pled. See Fed. R. Civ. P. 8(c) (listing affirmative
defenses).
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under the Plan. (Dkt. #11-1, at 1.) Indeed, Unum has already withheld LTD benefit
payments previously owed to Lehnen as a means to recover a portion of the overpayment
that resulted from his retroactive award of SSDI benefits. And the Seventh Circuit has
approved such a practice, explaining that doing so “fosters the integrity of a written plan
and ensures the availability of funds for other participants.” Northcutt, 467 F.3d at 1038.
Because the court has found that Lehnen is eligible to receive additional LTD
benefits and that Unum is allowed to recover any overpayment from those benefits, the
court will grant Unum’s request for an accounting to determine the amount of SSDI
benefits received by Lehnen while covered by the Plan and not yet recouped. The court
will also enter an order authorizing Unum to set off or withhold disability benefits to
recover any overpayment under the Plan, which Lehnen expressly agreed to repay out of
those proceeds under the Benefit Payment Option Agreement. (Dkt. #11-1, at 1.)
Unum has requested interest on the amount of overpayment that it is entitled to
recover, but does not provide information about the amount or the applicable interest rate.
Nor is there adequate briefing on the availability of attorneys’ fees and costs, which Unum
is entitled to recover under the terms of the Benefit Payment Option Agreement. (Dkt.
#11-1, at 1.) As with Lehnen’s request for attorneys’ fees and costs, the court reserves
ruling on these issues. Once an accounting of Lehnen’s SSDI funds has been completed,
Unum may file a separate motion within 30 days, regarding the amount of overpayment
owed plus interest, and demonstrating its entitlement to attorneys’ fees and costs, with
plaintiff having 21 days to file any opposition.
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ORDER
IT IS ORDERED that:
1) Plaintiff Kent A. Lehnen’s motion for judgment on the pleadings (dkt #16) is
GRANTED in part as to his claim for long-term disability benefits and DENIED
in remaining part.
2) Defendant Unum Life Insurance Company of America shall pay long-term
disability benefits under the terms of the Plan retroactive to July 19, 2022, plus
interest at a rate of 7.47%, and going forward as long as Lehnen remains eligible
consistent with this opinion.
3) Plaintiff Lehnen shall file a separate motion for attorneys’ fees and costs within
30 days of the date of this order, with defendant Unum’s opposition due 21 days
later, provided that both sides produce their lawyers’ invoices and billing records
with that side’s filing.
4) Defendant Unum’s motion for judgment (dkt. #21) is also GRANTED, in part,
as to its counterclaim for recovery of an overpayment of SSDI benefits that
plaintiff Lehnen has received from the Social Security Administration, and
DENIED in remaining part.
5) Defendant Unum may set off or withhold long-term disability benefits still due
under the Plan based on plaintiff Lehnen’s receipt of SSDI benefits.
6) Defendant Unum’s request for an accounting of SSDI benefits received by
plaintiff Lehnen to date for purposes of determining the offset of long-term
disability benefits is GRANTED. Plaintiff Lehnen shall provide an accounting
of those benefits to Unum within 30 days of the date of this order.
7) Within 30 days after the accounting of plaintiff Lehnen’s SSDI benefits has been
completed, defendant Unum shall file a separate motion regarding the amount
of overpayment owed, plus interest at the applicable rate, and supporting its
request for attorneys’ fees and costs, with plaintiff Lehnen’s opposition, if any,
due 21 days later.
Entered this 17th day of February, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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