Citations
- 690 F. Supp. 2d 917
Full opinion text
OPINION and ORDER
PAUL G. ROSENBLATT, District Judge.
Plaintiff Nancy Perryman (“Perryman”) brings this action to recover long-term disability benefits she alleges were wrongfully denied her by defendant Provident Life and Accident Insurance Company (“Provident”). The action is before the Court for its de novo review of Provident’s denial of benefits pursuant to the Employment Retirement Security Income Act of 1974 (“ERISA”). Having considered the parties’ memoranda, the evidence of record, and the oral argument of counsel as presented at the bench trial of this action, the Court finds that Perryman is entitled to recover long-term disability benefits from June 1, 1999 through the date of her 65th birthday.
General Background
Perryman stopped working on February 28, 1997 due to her illness; she was then years old. At that time, she was the Western Farm Bureau Insurance Company’s agency manager for the metropolitan Phoenix and Northern Arizona areas, supervising some 18-21 insurance agents working out of offices. She was then licensed both as a Chartered Life Underwriter and Chartered Life Financial Consultant. She was not paid a salary, but received commissions of up to some $300,000 per year; her average monthly earnings for the two years before she stopped working were $18,966. Perry-man’s whole working career was with Western Farm Bureau, which she started working for in the 1970s as a filed agent. She has a high school education with one year of college. She stayed at home as a homemaker for years before entering the work force.
Perryman, alleging that she was disabled from working due to chronic fatigue syndrome (“CFS”) as of March 1, 1997, filed a claim for long-term disability benefits in April, 1997. At that time, Perryman was insured under an ERISA-governed group disability insurance policy, LTD Policy # 120057, issued by Provident to her employer. Provident determined in January, 1998 that Perryman was unable to perform her former job due to her disability and began paying her disability benefits, retroactive to June 1, 1997, pursuant to the policy’s two-year “own occupation” provision. Provident terminated the payments as of May 31, 1999, due to its determination that Perryman was not disabled from working under the policy’s “any occupation” provision.
Pursuant to the parties’ stipulation, the Court has permitted the administrative record to be supplemented by the depositions of Gwendolen Alegre, Provident’s employee who made the original claims decision denying “own occupation” benefits, and Darragh Ferranti, Provident’s appeal consultant who affirmed the original decision. Pursuant to Provident’s request, to which Perryman has not objected, the Court will also permit the administrative record to be supplemented with the depositions of Dr. Pendergrass, Provident’s consulting psychologist, and Joseph Randza, Provident’s senior disability consultant.
Relevant Insurance Policy Provisions
Perryman’s claim for long-term disability benefits is governed by the insurance policy’s “any occupation” provision, which became effective as to Perryman on June 1,1999.
The policy states in relevant part:
You are Disabled from Any Occupation if due to Sickness or Injury you:
1. are unable to earn at least the Any Occupation Income Level shown in Section 11-Schedule of Insurance;
2. are mnable to perform each of the material duties of any occupation for which you are reasonably fitted by education, training, or experience; and
3. meet the requirements of the Any Occupation Period in this section.
The Date of Disability is the date on which your Earnings are less than the ... Any Occupation Income Level.
The “Any Occupation Income Level” is defined ás “80% of Indexed Earnings from any occupation you are reasonably fitted by education, training, or experience.” The “Indexed Earnings” is defined as the claimant’s earnings adjusted by the rate of increase in the Department of Labor’s CPI-W (the Consumer Price Index for Urban Wage Earners and Clerical Workers). The “Any Occupation Period” is defined as the period from the end of the Own Occupation Period until age 65 (in Perryman’s case).
The policy also provides that “Proof of Loss means written evidence satisfactory to us that you are Disabled and entitled to LTD Monthly Benefits.”
Highlights of Medical/Vocational Evidence and Related Procedural Matters in the Supplemented Administrative Record
(1) Jerry M. Fioramonti, M.D.
Dr. Fioramonti, a board-certified family practitioner who stated in October, 1997 that he had treated many CFS patients over the previous five years, was Perry-man’s primary care physician in Arizona. He treated her from June, 1994 through early 1998, when she moved to Texas. Perryman states that Dr. Fioramonti saw her 16 times.
Perryman first went to Dr. Fioramonti in June, 1994; she then complained in part of “vague, generalized symptoms of excessive fatigue” and was at that time assessed as having a “[pjotpurri of generalized symptoms which remind one certainly of viral infection.” (Administrative Record (“AR”) at 488). Dr. Fioramonti’s medical notes first indicate the “purely speculative” possibility of Perryman being infected with CFS on July 13, 1994, which was when Perryman told him that she had a sister with CFS and wondered if she could also have it. (AR at 487). His assessment of her in February, 1995 was that she had the diagnosis of CFS, “waring and waning ever since it first hit her back in June.” (AR at 486). His assessment of her in May, 1995 was that she had CFS “improved with modification of lifestyle,” which was that she went from working 10-12 hour days to working four-six hour days and not working on weekends. (AR at 485). In August, 1995, he noted that her CFS was “really improving in leaps and bounds.” (AR at 484). In January, 1997, he assessed her as having a history of CFS with progressive memory loss. (AR at 482).
On April- 29,' 1997, Dr. Fioramonti’s notes state that Perryman had decided that she was going to have to go on total disability and brought in a disability form to be filled that, that he “went through it line and by line with her and filled it out” and that he “fully support[s] her in this diagnosis.” He also noted that “[h]er symptoms are the same, which include severe and pervasive fatigue, short term memory loss, mental confusion, myalgias, arthralgias and sleep disorder.” (AR at 49 and 481).
On May 15, 1997, Dr. Fioramonti, using a Provident-supplied form, filled out a Mental Health Status Report on Perry-man. (AR at 52-53). He stated in that report that her specific symptoms were “frequent bouts of overwhelming fatigue & total body exhaustion; severe myalgias; short term memory loss and confusion & flu-like symptoms.” He noted on the report that her condition had deteriorated, and that she was not able to perform either her own occupation or any occupation because she “cannot sustain office or supervisory activities due to severe exhaustion, poor memory & confusion.” He stated that the estimated date of her return to work was “unknown & indeterminable.” He commented that “this illness is not specifically treatable or responsive to rehab. Future course is unpredictable.”
On May 15, 1997, Dr. Fioramonti also filled out a Provident-supplied Behavioral Capacities form (AR at 51) and a Physical Capacities form (AR at 50). In the Behavioral Capacities form he noted that Perryman “never” had the capacity (1) to perform either simple or complex, repetitive tasks over a period of time according to a set procedure or pace with minimal changes in work activity, (2) to perform frequent changes in tasks and/or skill level without loss of efficiency or composure, (3) to perform duties that are potentially dangerous to self or others and/or make decisions that will affect the well-being of others, and (4) to engage in work where continued employment and earnings are based on amount of goods produced, commission, earnings, volume of work processed, and adhering to frequent deadline changes.
Dr. Fioramonti also noted that Perry-man had the capacity “up to 1/3 of the work day” (1) to provide direction to others, (2) to influence others in their opinions, attitudes, judgments, (3) to engage in work that involves interpersonal relationships in job situations beyond receiving work instructions, (4) to use sound judgment and make decisions based on subjective/concrete information, and (5) to make generalizations, evaluations, and decisions based on measurable or verifiable/objective criteria.
In the Physical Capacities form, Dr. Fioramonti noted in part that Perryman could at one time stand and walk for % hour, sit for three hours, and drive for one hour, and that during an entire work day she could stand and walk for one hour, sit for four hours, and drive for two hours. He also noted that Perryman could occasionally lift and carry up to five pounds, and could occasionally bend, squat, kneel, and reach.
On October 21, 1997, Dr. Fioramonti filled out another form (AR at 499-500) related to Perryman’s ability to do work-related physical activities on which he noted in part that Perryman could, for a total at one time, sit for four hours, stand for one hour, and walk for lk hour, and could, for a total during an entire eight hour day, sit for four hours, and stand and walk for one hour; he also noted that Perryman occasionally could lift up to ten pounds, carry up to five pounds, and bend, squat, and reach, and that she had a mild restriction in driving automotive equipment. He further commented that Perryman was additionally limited in her activities by fatigue, problems with concentration, and problems on and off with memory, all of which affected her ability to function in a moderately severe manner. He further commented that her fatigue, her memory loss, and her loss in concentration were documented in records but that no objective tests exist to quantify her impairments, and that the lab work findings done at the first presentation of symptoms in 1994 were consistent with CFS.
In October, 1997, Dr. Fioramonti noted that Perryman, for the first time since she had CFS, had developed symptoms suggestive of depression. (AR at 479-80). In December, 1997, he assessed her as having CFS with secondary depression that was possibly starting to respond to Prozac. (AR at 478). In January, 1998, he assessed her as having CFS “with frequent relapses,” and secondary depression which was being helped by Prozac. (AR at 475).
On August 13, 1998, Dr. Fioramonti filled out an Attending Physician’s Statement of Disability form (AR at 210) in which he diagnosed Perryman as having CFS with unimproved progress. He noted that she was disabled from performing her own occupation and any other work since June 15, 1994, that there were “no meaningful work activities” that she was capable of performing, that her work capacity was “less than sedentary,” and that she could not be rehabilitated into her own occupation or any other work.
Dr. Fioramonti’s notes show that he had various blood work and other clinical testing performed on Perryman during the course of his treatment of her: he obtained a Dim I profile and ESR on June 27, 1994 (AR at 488); blood laboratory work that included thyroid and TSH tests as done on July 8, 1994 (AR at 487); he repeated “Dim 1 and ESR, TSH, EBV and a CMV titer just for completeness’ sake” on July 13, 1994 (AR at 487); he ordered tests on “[ujrine for heavy metal screen, Dim 1 profile, ESR, ANA, and VDR” and a brain MRI on January 14, 1997 (AR at 482); a TSH blood test was done on February 27, 1997 (AR at 48); and he stated that he would do a “Dim 1 profile to recheck her TSH” on October 17, 1997. (AR at 479).
(2) Clark Hansen, N.D.
Dr. Hansen, a naturopathic physician, treated Perryman from July, 1994 through March, 1997, which was during the same period of time she was seeing Dr. Fioramonti. His office notes (AR at 179-91) show treatment or medication-related entries for some 39 different days during that period. Perryman states that Dr. Hansen saw her 26 times.
On March 1, 1995, Dr. Hansen wrote a letter (AR at 25) to an attorney regarding Perryman’s medical condition in which he stated in part:
I have examined Ms. Perryman and diagnosed her as having (1) Chronic Fatigue & Immune Dysfunction Syndrome (CFIDS), (2) Anemia, and (3) Hashimoto’s Thryoiditis [sic], Ms. Perryman’s current condition is that of a weakened, easily fatigued, 53 year old woman. She is severely limited by CFIDS, the chronic, relapsing, persistent illness that renders her incapable of functioning several hours per day. Everyone of the above three diagnoses causes excessive fatigue, however, CFIDS causes the most profound fatigue and limitations.
In addition to severe fatigue, Ms. Perry-man suffers from joint pains, soreness in the muscles, heaviness in the chest, mental dullness, dizziness, and palpitations, all of which are related to CFIDS. She is limited to approximately 40-50% of her original capacities.
Ms. Perryman’s prognosis is good, but the course of her recovery is usually lengthy. The average length of recovery is 5-10 years. I have seen significant improvement in her condition since I first began seeing her as a patient on 7-20-94. I have recommend [sic] that she not work more than 30 hrs per week in order to allow her immune system the time to heal.
On October 30, 1997, Dr. Hansen filled out a physical capacities form (AR at 176-77; 501-02) in which he noted in part that Perryman could, for a total at one time, sit for one hour, and stand and walk for hour, and that during an eight hour day she could sit for a total of three hours, stand for two hours, and walk for one hour. He also noted that Perryman could occasionally bend, squat, and reach; he made no findings regarding her ability to lift or carry. He further noted that her pain, fatigue and dizziness additionally limited her activities, and that her pain and fatigue affected her ability to function in a moderately severe manner, and that her pain and fatigue resulted from documented objective or diagnostic findings. He further commented that her “mental fatigue can be severe and very unpredictable. Can black out, illness can be incapacitating for weeks @ a time with short periods of improvement. No known cure.”
In June, 1998, Dr. Hansen filled out Medical Assessment Form for CFS supplied by Provident, wherein he stated that Perryman’s signs and symptoms were “[fjatigue, malaise, sore throats, low grade fevers, myalgia, arthralgia, mental dullness, sleep disturb [sic], memory loss, exhaustion to point of collapse some days, anterior cervical lymphodenopathy, temp + 99.0 F on multiple visits.” (AR at 193). He also noted that Perryman’s subjective complaints were “exhaustion that leads to difficulty thinking, concentrating, slow reactions, poor memory,” and that her current cognitive functional problems were “exhaustion, memory loss/weakness, confusion, mental dullness, slowness of comprehension.”) (AR at 193).
He further noted that the tests he used to rule out other conditions were “Thyroid panel, CBC, SMAC 25, Tender point score for Fibromyalgia, ANA, Anti-DS DNA, Anti SM, Anti RNP, Sjogrens, SSA & SSB, ESR, Thyroid Auto Ab, Thyroid medication, Estrogen Replacement Therapy.” (AR at 193).
Dr. Hansen’s records show the results of various blood tests taken or done on July 20, 1994 (AR at 159-60), November 15, 1994 (AR at 163), November 21, 1995 (AR at 165), December 9, 1995 (AR at 166-67), December 13, 1996 (AR at 171-72), March 3, 1997 (AR at 21 and 26), and December 9,1995 (AR at 167-68).
He attached to the CFS form a completed checklist (AR at 192) from the CDC regarding CFS definitional criteria. He noted that Perryman met both of the major criteria for CFS, i.e. persistent or relapsing fatigue or easy fatigability that does not resolve with bed rest and is severe enough to reduce average daily activity by at least 50%, and exclusion of other chronic clinical problems, including psychiatric conditions. He also noted that she met nine of the eleven minor criteria, i.e. low-grade fever, sore throat, painful lymph nodes, unexplained generalized muscle weakness, muscle discomfort/myalgia, prolonged general fatigue following levels of exercise that were previously well tolerated, migratory arthralgia without objective signs of arthritis, neuropsychological symptoms, and sleep disturbance. He further noted that she met all three of the physical criteria, i.e. low-grade fever, nonexudative pharyngitis, and palpable or tender lymph nodes.
(3) Christine Madsen, N.D.
Dr. Madsen, a naturopathic physician working out of the same clinic as Dr. Hansen, filled out an Attending Physician’s Statement of Disability form (AR at 6-7) on May 1,1997. Dr. Madsen stated on the form that she had treated Perryman from July 20, 1994 through March 3, 1997. None of Dr. 'Madsen’s treatment or office notes are in the administrative record.
Dr. Madsen listed Perryman’s symptoms as being “[ejxtreme fatigue, short term memory loss, mental confusion, sleep disorder, Fibromyalgia sxs, swollen glands.” Her diagnosis was of chronic fatigue, and she noted that the diagnosis was based on objective findings of “EBV panel, CMV Test”. She noted that Perry-man was disabled from both her regular occupation and any occupation since February 28, 1997, and that she was not a suitable candidate for a rehabilitation program. Dr. Madsen remarked that
Mrs. Perryman has frequent periods of extreme fatigue-she is unable to perform activities of daily living many days. She also suffers short term memory loss which has been affecting her performance at work. She has become somewhat isolated due to her status. She is often bed-bound/house bound. She cannot do her own shopping or meal preparation.
(4) Hal Breen, M.D.
Dr. Breen, a psychiatrist, examined Perryman on August 28, 1997 at the request of the Arizona Department of Economic Security as part of Perryman’s application for Social Security disability benefits. Dr. Breen noted in his report (AR at 505-13) that Perryman “did not present any clinical evidence of depression.” His summary of his conclusions stated in part:
She felt she had a short-term memory loss, slight confusion and stated that she had some difficulty with words. None of these situations or symptoms were present on clinical examination today....
The Mental Status Examination did not substantiate claims of short-term memory loss or confusion. The patient was in good contact with reality and her memory for immediate, intermediate and distant recall was well within normal limits....
The prognosis for this patient is good, if she can obtain effective treatment for the condition which is alleged.
The diagnosis of chronic fatigue syndrome cannot be ruled out, as this is a somatic diagnosis, by this examiner. However, the allegation of confusion and short-term memory loss is clearly untrue in this case.
Dr. Breen also filled out a mental capacities form for work-related activities (AR at 503-04) in which he noted in part that Perryman had a “Fair: seriously limited, but not precluded” ability to deal with work stresses, a “Good: limited, but satisfactory” ability to deal with the public, an “Unlimited/very good” ability to follow work rules, relate to co-workers, use judgment, interact with supervisors, function independently, and maintain attention and concentration. He also noted that she had a “Good; limited but satisfactory” ability to understand, remember and carry out complex job instructions, and an “Unlimited/very good” ability to understand, remember and carry out simple and detailed job instructions. He also commented on the form that “Patient’s fatigue is unexplained by this exam. Not confused; no memory loss.”
Dr. Fioramonti’s Rebuttal — On October 2, 1997, Dr. Fioramonti wrote a letter (AR at 98-99), apparently to someone with the Social Security Administration, responding to Dr. Breen’s report; Provident received a copy of the letter on November 11, 1997. Dr. Fioramonti stated in part in his letter:
I feel confident that [Dr. Breen’s] mental status exam and assessment of [Perryman’s] though[t] processes and functioning at the time of his interview were indeed correct and accurate. However, the nature of this patient’s disease and the symptoms that she suffers from are well known to be an intermittent and fluctuating disorder, characterized by periods of remission and then exacerbation.
The patient has never claimed to have permanent short term memory loss, or constant clouding of sensorium. Quite to the contrary, she has always complained of periods of feeling bright, energetic, and being able to perform her duties interrupted by frequent episodes of symptoms consistent with chronic fatigue syndrome, whereby she can barely get out of bed, her sensorium becomes very clouded, her short term memory is poor, and her general overall level of functioning declines markedly.
As a family physician who has treated many patients over the last five years with chronic fatigue syndrome, I certainly don’t feel that the result of this psychological exam taken on one day, when the patient was not having an exacerbation of her symptoms, in any way should disqualify her from the disability that is well documented in the literature, and in our practices suffered by patients who have chronic fatigue syndrome.
(5) Thomas Pendergrass, RN, Ph.D
Dr. Pendergrass, a psychologist and registered nurse employed by Provident, performed a review of Perryman’s file on August 4, 1997, and noted that “[f]rom data available there is no clear suggestion of a nervous/mental disorder.” (AR at 56).
Dr. Pendergrass testified at his deposition that he obtained additional information about Perryman’s condition during a telephone conversation with Dr. Fioramonti by telephone on January 13, 1998, and that Dr. Fioramonti told him at that time that he had just seen Perryman that morning, that it was his opinion that Perryman met the criteria for CFS, that there was no evidence of underlying depression and that the depressive symptoms he had noted in Perryman were reactive in nature to the CFS, that he summarized for Dr. Pendergrass the results of the lab results that confirmed his diagnosis of CFS, that he informed Dr. Pendergrass that Perryman was having frequent recurrence of her symptoms that included fatigue, cognitive slowing and psycho-motor retardation, that Perryman would generally have bouts of two week durations followed by a four week improvement, and that there was no foreseeable time that a return-to-work could be predicted. (AR at 46-49). Dr. Pendergrass also testified that he was not qualified to diagnose CFS (AR at 63), and that there is no objective neuropsych test that can quantify fatigue levels but that fatigue can be observed and evaluated more thoroughly by a FCE. (AR at 54).
(6) Dr. Barton
Dr. Barton, a Provident medical advisor of unknown specialty, also performed a file review on August 4, 1997. Dr. Barton noted that Perryman’s diagnosis of chronic fatigue could not be objectively verified, that her condition would not improve with treatment, that her expected recovery date was unknown, and that “[a]t this point, no work [is] feasible.” (AR at 58).
(7) Benjamin Harris, M.D.
Dr. Harris, a rheumatologist, performed an independent medical exam (“IME”) on Perryman at Provident’s request on October 17, 1997. He noted in his report (AR at 86-88) that “the general physical examination, including neurologic examination, was -within normal limits.” He stated that “I thought that Mrs. Perryman, by history and physical examination, had features of both a chronic fatigue syndrome and fibromyalgia.” He noted that Perryman had “extensive testing” done in January, 1997, including an MRI and various blood tests. He also noted that Perryman had “improved significantly” since the onset of the symptoms in 1994. As to Perryman’s then ability to work, Dr. Harris stated:
In reviewing the job description as agency manager, I do not think the patient could at present keep up with the demands of such a fast paced position. It is possible that if there is further improvement in the next year or two that resumption of this work would be a possibility. At present I do not think the patient is capable of more than sedentary clerical work on a part-time basis.
Dr. Harris also filled out a physical capacities form (AR at 90) on October 20, 1997, in which he noted in part that Perry-man could, for a total at one time, stand, walk and drive for lk hour and sit for two hours, and that in an eight hour day she could stand, walk and drive for a total of one hour 'and sit for a total of four hours. He also noted in part that Perryman could lift from the floor, knees, waist, and chest, that she could occasionally lift and carry 25 pounds, and that she could occasionally bend, twist, squat, and kneel, and moderately reach.
(8) Provident Filed Reports
Provident employee Joseph Mauvais interviewed Perryman on February 12, 1998. Mauvais’ report (AR at ,121-26) states in part:
[Perryman] did appear fatigued and as the interview proceeded, appeared more tired. She talks in a very soft manner and moves around slowly. I observed her walking from the living room up the stairs and back, to retrieve documents in a very slow manner. At time[s] during the interview, she seemed to lose her train of thought and had to ask where we were.... At times she broke down and began to cry when discussing her previous occupation, the income she made and her current medical condition ....
On the particular day of this interview, she said she was having a good day and was coherent and clear headed. However, she said she was ready for rest after being with the marriage counselor for approximately 1 and lk hours prior to the interview. The claimant says that she has a goal each day of getting up and getting dressed and doing something positive which could include reading, talking to a friend on the telephone or trying to get out of the house....
Current Activities
The claimant is having a difficult time sleeping throughout the night and usually finds herself awakened between 12:00 and 5:00 a.m. She eventually doses back off to sleep after 5:00 and wakes up whenever she does. At.that time, she tries to take care of her personal hygiene, but if she has no appointments will not curl her hair or do make-up. She said just doing her hair takes a lot of energy out of her. On days that she has no personal appointments, just a marriage counselor or doctor, she will stay in the home and usually read and relax by mediation. She takes her medication and cooks herself a light breakfast usually consisting of toast. She dresses herself and will go out of her house for appointments, which are usually scheduled in the mid-morning hours. By 1:00 in the afternoon, she is usually totally exhausted and needs to come home and sleep. She usually rests from 1:00 to 3:00 p.m. She is in the house for the rest of the day. She does no cleaning in the house and does not do her own laundry. Her daughter does all of the grocery shopping and usually runs errands for her. Dinner at night for her usually consists of soup.
Restrictions/Limitations
The claimant is restricted at this time from returning to work in any capacity. Her doctor has recommended some light gentle exercising in include short walks, but she is unable to do so on a consistent basis.... She suffers from memory loss, and describes her condition sometimes, as a light case of Alzheimer’s disease .... She said in the mornings if she is exhausted, she suffers from anxiety and it is followed by difficulty in decision making, planning, and concentration. Prior to her illness, she had a personal trainer and worked out on a regular basis. Since the illness, she has lost all her muscle tone and is not able to work out or walk on a light basis. She feels that she has lost all strength in her muscles, yet they still ache.... She has 11 to 14 days of good careful pace and then she will fall back into what she describes as the pit, for 7 to 8 weeks, where she is constantly trying to crawl out and gets sucked back in....
Future Plans
... She has a strong desire and will to return back to work, if not in her previous profession then to be rehabilitated in another. She expressed interest in our rehabilitation unit and has expressed a desire to have someone contact her. She desires to be self sufficient and energetic again....
Claim Issues/Concems
I have no particular concerns at this time. A surveillance may be warranted in this case to verify her outside activities. Her condition appears to be well documented from her attending physician, as well as various tests taken.... The claimant seems very motivated to wants [sic] to return to [sic] back to work[.]
Provident employee Roy Middleton interviewed Michael Tousley, who was Perryman’s supervisor for the last four years she worked, on February 19, 1998. Middleton’s filed referral report (AR at 130-31) states in part:
Mr. Tousley stated that the last 4 or 5 months of her employment were sad because he had to continuously cover for her as she could not remember anything that was going on. He gave an example of calling her in the morning to discuss something and then he would call her back in the afternoon and she would have no recollection of the morning call.... Mr. Tousley talked to Ms. Perryman about reducing her responsibilities and they decided that reduced responsibilities would not help the situation. Mr. Tousley said that in retrospect he thinks Ms. Perryman stayed around a little longer that she should have anyway.
Another Provident employee, Dan Christener, wrote a file memo on June 19, 1998 (AR at 145) in which he states that “[t]here is considerable medical information which supports disability and the continuation of disability benefits at this time.” Christener recommended that Perryman be asked to complete a 14-day activity log and that a surveillance be done on her.
(9) Award of Social Security Disability Benefits
A Social Security Administration administrative law judge (“ALJ”), in a decision entered on August 26, 1998, found that Perryman was entitled to Title II disability benefits; he determined that Perryman’s disability onset date was February 28, 1997. The ALJ concluded that Perry-man’s combined impairments of chronic fatigue syndrome and depression prevented her from “engaging in work activity on a regular and consistent basis” (AR at 496), and that Perryman did not have “transferable skills to perform other work within her physical and mental residual functional capacity.” (AR at 495). The ALJ also stated that “[gjiven the claimant’s residual functional capacity, and the vocational factors of her age, education and past relevant work experience, there are no jobs existing in significant numbers the claimant is capable of performing.” (AR at 496).
Provident was aware of the Social Security disability award by October of 1998, which was prior to its initial rejection of Perryman’s claim for “any occupation” disability benefits, in that it reduced the amount of Perryman’s “own occupation” benefits by the amount of her Social Security disability benefits. (AR at 250).
(10) Clark Craig, M.D.
After Perryman moved to Texas in 1998, she first saw Dr. Craig, speciality unknown, for a short period of time. His office note from his examination of her on April 6, 1998, which included a TSH blood test that came back within normal limits, assesses her as having “chronic fatigue syndrome with features of fibromyalgia.” (AR at 491). On a follow-up visit on July 31, 1998, Dr. Craig again assessed Perry-man as having chronic fatigue syndrome. (AR at 489).
(11) Surveillance Report
Provident hired International Claims Specialists to conduct a surveillance of Perryman in Texas. A three-day surveillance was conducted in July, 1998. The summary section of the surveillance report (AR at 236-37) states that:
On Sunday, 7/26/98, the claimant and an elderly female companion departed in a black Mercedes with Arizona plates at 9:09 a.m. and drove to church in Marble Falls, Texas. On the way they stopped for gas. After church they stopped at a residence in Tendron, Texas for a few minutes before returning home. In the early afternoon, they departed the house again and drove to the same residential house. After about a two hour visit, they drove back home. No other vehicles or any other people were observed at the claimant’s address.
On Monday, 7/27/98, the claimant and the elderly female were observed at home at various times of the day for brief periods. The first observation was at 7:56 a.m. and the last observation of the claimant was at 8:02 p.m. The claimant did not go anywhere in her vehicle. No other vehicle or any other people were observed at the claimant’s address. On Tuesday, 7/28/98, the claimant was observed at 7:50 a.m. and at 1:25 p.m. very briefly at home. She did not go anywhere in her vehicle. No other vehicles or any other people were observed except for the elderly lady.
Videotape documentation shows the claimant walking, driving, putting gas in her vehicle, carrying a potted plant and bending at the waist to pick up an unknown object.
(12) Sidney Shinkawa, M.D.
Dr. Shinkawa, an internist, became Perryman’s primary care physician in July, 1998. Perryman states that Dr. Shinkawa saw her eight times.
Dr. Shinkawa filled out an Attending Physician’s Statement of Disability form (AR at 277) on March 2, 1999, in which she noted that Perryman’s subjective symptoms were “fatigue-unable to stay awake [and] decreased concentration.” She diagnosed Perryman as having chronic fatigue, and noted that Perryman was disabled from March 1, 1997 from performing her own occupation and any other work and that it was unknown when she could return to work. She also noted that “Pt is unable to stay awake all day.”
Dr. Shinkawa wrote a letter (No Bates number; in AR vol. 3, Tab B) to Gwendolen Alegre, Provident’s claim representative, on August 20, 1999, in which she stated in part:
... Nancy Perryman has carried the diagnosis of chronic fatigue syndrome since 1994 according to our records under Dr. Fioramonti. She appears to be basically unchanged since the diagnosis was made. Her symptoms are (1) Unexplained severe fatigue.(2) Post-exertional malaise — out of proportion to physical activity. (3) Unrefreshing sleep' — also worked up in sleep clinic in Temple. (4) Muscle aches and pains (fibromyalgia symptoms) also well documented by Dr: Chuñe (endocrinologist) and Dr. Wilkinson (neurologist) as well as Dr. Fioramonti. (5) Multiple joint pains (6) Tension headaches (7) occasional sore throat in AM when she is very fatigue[d]. (8) Impaired memory and concentration when her fatigue is severe. Nancy’s major complaint— overwhelming fatigue has rendered her unable to hold down an office job as documented by Dr. Fioramonti.
She has had a battery of test[s] done— (which were normal) to exclude other diseases which could mimic CFS. She has also been evaluated b numerous specialists [:] Dr. Terry Wilkinson (neurologist), Dr. Ga[r]y Chuñe (endocrinologist), and a sleep clinic specialist, who have concurred with the diagnosis of CFS. She has also had a normal MRI of the brain.
Nancy also developed severe orthostatic hypotension (probable autonomic neurally medicated hypotension) which responded to fludrocortisone and is related to CFS.
Nancy Perryman has also related to us — that under the suggestion of Provident she was evaluated by a psychiatrist for possible depression, and it has been my opinion as well as Dr. Fioramonti that depression was not a major diagnosis, but secondary to CFS.
Dr. Shinkawa also provided an affidavit (AR at 527) on October 21, 1999, wherein she stated in part:
3. Based on Ms. Perryman’s history as well as my examination of her, I have concluded that she suffers from chronic fatigue syndrome.
4. In 1998, I treated Ms. Perryman for complaints of orthostatic hypotension. Orthostatic hypotension is a sudden drop in blood pressure related to changes in body position. This condition cannot be faked by a patient. Orthostatic hypotension is often associated with chronic fatigue syndrome.
5. At the current time, Ms. Perryman is unable to work any job for 40 hours a week due to her chronic fatigue. Additionally, she is unable to drive the 45 minutes drive from her home to town on a daily basis because of her problem with concentration caused by her fatigue.
Dr. Shinkawa’s notes state on July 15, 1998 that Perryman recently had her “thyroid level and laboratory done” (AR at 370), that she had a hotter heart test performed on Perryman on October 5, 1998 (AR at 311), and a EEG done on October 12,1998. (AR at 312).
(13) Gary Chuñe, M.D.
Dr. Chuñe, an endocrinologist, treated Perryman for several months in the last half of 1998 for her syncopal episodes (dizziness and blackouts) based on a referral from Dr. Shinkawa. After examining Perryman and having various blood tests done, Dr. Chuñe concluded on October 12, 1998 that Perryman did not appear to have any problems with her adrenal glands, but that she did have orthostatic hypotension. (AR at 329-30). Dr. Chuñe noted on November 24, 1998 that Perryman had “what appeared to be a possible chronic fatigue syndrome,” that she had mild hypercalcemia, that she did not appear to have any known endocrine disorder, and he ruled entities such as hyperparathyroidism. (AR at 327). Dr. Chune’s assessment of Perryman on December 8, 1998 was that she had orthostatic hypotension, that he could not find any other abnormalities, that he was left with a possible diagnosis of pure autonomic failure/possible sympathetic failure, and that she did not appear to have any Parkinsonian type symptoms suggestive of Shy-Drager syndrome. (AR at 326).
Dr. Chune’s notes show that he performed a rapid cortrosyn simulation test and adrenal and calcium blood workups, including SMA-12, ACTH, TSH, T4, T3U, and CBC on October 12,1998. (AR at 326, 329-30). They also show that he evaluated Perryman for “any potential endocrine disorder” by doing laboratory blood tests for ACTH and morning serum cortisol, thyroid function and TSH, and SMA-12 on November 24,1998. (AR at 314).
(14) GENEX Report
Provident referred Perryman’s claim to GENEX Services, Inc. in March, 1999 for the purpose of addressing CFS treatment issues with Dr. Shinkawa. A GENEX representative, Judy Minter, interviewed Dr. Shinkawa on March 23, 1999. Minter’s report (AR at 334-37) states in part:
Dr. Shinkawa reported that at her appointments, Ms. Perryman is complaining of headaches, problems sleeping, and waking up every few hours through the night.
* * *
When asked to list the [CFS] criteria identified in formulating her diagnosis of Ms. Perryman’s [CFS], Dr. Shinkawa reported that she had not diagnosed Ms. Shinkawa as having [CFS]. That Ms. Perryman had only reported to her that she had that condition.
As I went over the list of the CDC criteria provided to me by Provident, Dr. Shinkawa stated that Ms. Perryman has no low grade fevers. She has complained of a sore throat (a fanny feeling). But there has been no redness, no puss [sic]. There has been no evidence of painful cervical or lymph nodes. Ms. Perryman does complain of muscle weakness and there is a lack of muscle tone but Dr. Shinkawa reports that this muscle tone has not been documented. Dr. Shinkawa also reports Ms. Perry-man does complain of achiness, sleep disturbances, extreme forgetfulness and loss of short term memory.
Dr. Shinkawa noted that she felt that Ms. Perryman’s worse problem was her severe orthostatic hypotension which has caused her to faint when she stood up quickly. Dr. Shinkawa has prescribed Florinet [sic-Florinef] for this problem and the problem has resolved itself. * * *
When Dr. Shinkawa was asked to please site [sic] findings that support Ms. Perryman’s functional loss, she reported that Ms. Perryman has muscle atrophy but she also stated that she has not measured this.
Dr. Shinkawa reports that since Ms. Perryman cannot perform any type of duties for more than 2-3 hours without extreme fatigue and since her muscles have atrophied that she is not able to perform any type of work. She states her memory would also be a problem in her returning to work. Dr. Shinkawa notes that she has not tested this-it is simply by claimant’s report. Ms. Perry-man has never forgotten a scheduled appointment. To address the issues of extreme fatigue and muscle atrophy, Dr. Shinkawa has referred Ms. Perryman for an FCE. * * *
Barriers to Return to Work
1. A general practitioner physician who is not currently addressing Ms. Perry-man’s [CFS],
2. Ms. Perryman’s apparent total lack of or desire for meaningful activities.
(15) HealthSouth’s Functional Capacity Evaluation
A functional capacity evaluation (“FCE”) was performed on Perryman by Health-South Industrial Rehabilitation Center on April 12, 1999 (No Bates numbering on legible copy; is in AR vol. 3, tab C). The examiner concluded that the FCE showed that Perryman was functioning in the Department of Labor’s sedentary work classification.
The FCE states in part that “Ms. Perry-man noted to be laboring by the end of testing to complete activities. She completed test over the course of 4 hours.” It also states that Perryman “was unable to complete the frequent lift test in time frame adequate to determine a frequent level,” and that the examiner “[n]oted problems with blood pressure during [positional tolerance] testing showed rapid changes up and down.” It also comments that positional tolerance “[a]ctivities were evaluated in a sustained circuit for a total tolerance of 20 minutes prior to needing a rest break. This was taken into consideration when establishing work level for consistency.” It further comments that “[h]er aerobic capacity was assessed as average for age and sex. She was able to walk a sustained pace of 2 mph for 12 minutes and covered a distance of .35 miles.”
The FCE examiner also filled out a physical capacities form on Perryman. (Exhibit/AR at 410A). The examiner stated in part that Perryman can stand, walk, sit and drive for only lk hour at a time, and that during an entire workday she can stand, walk, and drive for a total of two hours and can sit for a total of four hours. He also stated in part that Perryman can lift from the floor to over her head, that she can occasionally lift and carry up to 20 pounds, that she can occasionally bend, twist, squat, and kneel, and can moderately reach.
Perryman’s Response to the FCE — Perryman submitted an affidavit dated October 24, 1999 (AR at 35-36) in which she stated in part: “At Provident’s request, I went to be evaluated at Healthsouth. I was only able to spend 13 minutes on the treadmill and then needed a 45 minute nap before I could continue any other exercises. Even though I did less than one hour of exercises while I was at Healthsouth, I was so exhausted that I spent the next four days in bed.”
(16) J. Terry Wilkinson, M.D.
Dr. Wilkinson, a neurologist, examined Perryman on June 16, 1999 on a referral from Dr. Shinkawa. In his report (AR at 518-21), Dr. Wilkinson stated in part that Perryman informed him that “[s]he has felt constantly tired since [1994], although the degree of fatigue and feeling tired tends to wax and wane”; that her placement on Florinef in October 1998 “has pretty much controlled the orthostatic lightheaded-type sympomatology and she has not had any further episodes of syncope”; that her “depressive symptoms resolved on Prozac and she also feels that her fatigue symptomatology improved on the Prozac”; that she “has had problems with her ‘memory and thinking being cloudy’ whenever she is extremely fatigued, but only when she is very tired”; and that she denied “any progressive decline in memory or cognitive functioning.”
In the “Impressions” section of his report, Dr. Wilkinson stated in part that he could not find any “evidence of a primary neurological disorder” causing either the CFS problem or the orthostatic hypotension, and, in regard to Perryman’s complaints of difficulty with memory, cognitive functioning, and concentration when she is fatigued, that he did not “feel that this represents a true organic problem with memory or cognitive functioning. Her cognitive functioning and memory are normal on examination. This is an inefficiency of thinking and concentration when she is tired.” Dr. Wilkinson also stated that Perryman “has actually symptomatically improved rather significantly with the combination of Prozac and Florinef.”
(17) E.C. Curtis, M.D.
Dr. Curtis, a specialist in occupational medicine, was Provident’s main in-house medical consultant on Perryman’s claim. Dr. Curtis submitted two reports in this case based solely on his review of Perry-man’s claim file.
In his first report (AR at 417-19) dated May 12, 1999, Dr. Curtis stated in part:
This patient sees herself as completely unable to function occupationally. Although she claims that she must sleep 12-14 hours a day, she appears to be quite capable of performing basic ADL’s [activities of daily living] at this time. While she does meet the few loose, vague criteria for she appears to have been so labeled based almost entirely on her self reports. Unfortunately there are no truly objective findings to establish presence or absence of this disorder. The fact that she reportedly has such findings as low grade fevers, intermittent occurrence of small nodes, and has had non-febrile exudative pharyngitis, etc. is not convincing. None of these, nor the combination of them, is pathognomic for CFS.
Her complaints of incapacitating fatigue seem to be exaggerated in light of the FCE findings ..., albeit she and her AP [attending will no doubt say that those findings represent what she could do on one of her “good days” and that she was “wiped out” for hours or days thereafter.
In addition, she says that she has problems with concentration and with short term memory. Nothing further in the chart substantiates that these are significant problems for her.... Besides this, Ms. Perryman claims that she has fainting spells. These are not independently verified, and there seem to be no objective findings in the record consistent with what her AP called orthostatic hypotension.
The few physical findings which are recorded in the chart, are generally unremarkable. The same is true of most of the lab results, there being no definitive findings in support of her alleged disability. Indeed a variety of laboratory tests have been done, and while there is some indication of hypothyroidism, even this is not extreme and should be readily responsive to medication.
It should be noted that many of her complaints are consistent with explanations other than by attribution to [CFS]. For instance, fatigue is often a manifestation of depressed mood. It can also be a result of hypothyroidism.
Likewise, complaints about sleep are often related to depressed mood. They are not infrequently a function of poor sleep hygiene as well....
The reported problems with concentration and short term memory are also consistent with depressed mood. In her case they may well be a function of distraction secondary to her apparent rather severe problems related to issues involving marriage and divorce.
A recent FCE indicates that Ms. Perry-man is capable of sedentary work despite suggestions of deconditioning effects. These effects could account for some of the seeming weakness in her lower extremities and also might very well explain variability in blood pressure readings.
However, a careful review of the records at hand seems to support the view that two other underlying factors are at work here and are at least in part probably causal. These two, particularly in combination, could go a long way toward explaining most of her symptoms. Neither appears to have been adequately addressed thus far.
One is depressed mood/probable reactive depression, indicators of which have been noted above....
The other is a set of closely interwoven psychosocial issues, including: a perception of near exhaustion from reported long hours and stressful aspects of her previous job (apparently seen as “too much” for someone in her mid-50’s who might understandably be tired of the struggle). Also there is the perception of feeling overwhelmed by the process of marital separation and divorce[.] ... Besides this, there is apparently growing perception on her part of invalidity, that is to say, development of a disabled mind set.
All of these factors are present in the context of caregivers who seem less than inclined to encourage and facilitate abilities and instead support disability, and of a claimant who reportedly has limited economic incentive to resume work.
Recent FCE findings give the impression that the claimant is capable of doing considerably more than her self reports might indicate. That is to say, she is capable of not only performing basic ADL’s, but also seems very likely able to perform sedentary work. In view of her protracted relative inactivity and of consequent deconditioning effects, she would probably need to start off working part time for some weeks. Then she could gradually progress toward working 8 hour days.
Although it seems that the individual may not really wish to return to work, and that she has many (albeit poorly substantiated) complaints, the few objective indicators available in the record seem not to support her contention that she is totally incapable of occupational involvement. There does appear to be a need for more serious attention being given to her mood disorder and to assuring that she has adequate psychological and social support in the midst of her marital struggles. While she may indeed believe that she is incapable, that assessment seems to be an exaggeration. Ms. Perryman would very likely benefit significantly from the socialization and disciplines involved in at least a gradual return to the work place.
Provident used Dr. Curtis’ report as a primary basis for discontinuing Perry-man’s disability benefits. After Perryman filed her administrative appeal, which was supported by a letter from her attorney raising issues concerning the validity of Dr. Curtis’ report, Provident had Dr. Curtis reexamine the file. Dr. Curtis issued a second report (AR at 547-51) on November 24, 1999. Dr. Curtis’ post-appeal report states in part:
A careful reexamination of Dr. Fioramonti’s clinical notes since 1994 fails to uncover any systematic listing of items accepted as criteria for chronic fatigue syndrome.... However, at different times the record does record complaints of low grade fevers and sore throat, plus reputed muscle and joint pain, plus alleged concentration/memory problems, which in company with then new complaints about the onset of unexplained, persistent, chronic fatigue not due to ongoing exertion or alleviated by rest, and which substantially reduces operational et al activities, are documented. Relative to ability to perform ADL’s and alleged problems with concentration/short term memory, Ms. Perry-man’s attorney refers to a number of statements by Dr. Hansen et al. in supposed support of the view that Ms. Perryman is impaired in these areas. For the most part, these individuals seem to be voicing essentially recitations or paraphrases of what Ms. Perryman has told them about her functioning. These seem not to be of observations which they themselves have made.
(The same type of thing is reflected in most of the testimonials which were written on her behalf by family, friends, et al.[) ] ...
Relative to alleged problems with concentration and short term memory, my report does indeed conclude that these are not substantiated by information in the records. As of this date, they still have not been thoroughly substantiated. This is despite statements by Doctors Hansen and Fioramonti who generally seem to be reciting what the patient has told them about such, rather than supplying what are clearly their own objective observations or assessments based on testing.
Not only has no neuropsych testing been done, it appears that these physicians have not even used simple measures which are quite amenable to office administration. In fact, it seems that only two physicians have utilized even such basic measures and have reported on them. On of these is Dr. Breen who went on to conclude that “the allegation of confusion and short term memory-loss, is clearly untrue in this case.”
In addition, neurologist Wilkinson, having conducted such testing, reports that Ms. Perryman’s cognitive function and memory are normal on examination. He expressed his belief that the alleged difficulties do not represent a true organic problem, but instead “an inefficiency of thinking and concentration when she is tired”.
* * *
Relative to the number of doctors who have supposedly confirmed the diagnosis of CFS, it is well known that once labels have been applied, subsequent examiners frequently simply list them as part of the problem list (sometimes adding “by history” or “by report”) as if they were confirmed.
That does not necessarily mean concurrence, but that due to time constraints and other considerations they seldom controvert such labels unless there is some unusual circumstance or finding. However, my report acknowledges up front that she does meet the few loose, vague criteria for CFS. At the same time, that report legitimately queries whether, in view of the fact that many who are so labeled either remain functional, or improve and become more functional, this individual is truly significantly dysfunctional. Also, there is a seeming contradiction between asserted and demonstrated ability, e.g., based on FCE findings that seem to show residual functional capacity well beyond what this claimant claims to be able to do.
Regarding “estimates of ability to do work related activities”, completed by Dr. Fioromonti [sic], these two documents (done about one week apart) exhibit some inconsistencies with one another. In addition, they appear to be based on assessments absent any actual testing. Despite that, they can be interpreted as suggesting that part-time work is a possibility for this individual.
[CFS] has essentially no objective clinical findings, but individuals so labeled are still subject to assessment in terms of functional parameters. In this ease, the scant objective evidence available relative to functional impairment suggests that, even if this label is accurately applied, Ms. Perryman has enough residual functional capacity to allow for sedentary to light tasks much of the time.
Thus, given a reasonably accommodating work setting, with even a modicum of worker determination to embrace validity (vs in-validity), successful return to work can be accomplished. While return to work after a worker has been out for over five years is statistically exceedingly rare, there appears to be no objective functional basis to justify this particular individual’s continuing absence from the workplace.
(Emphases in original).
(18) Nancy Perryman
Perryman completed a 14-day daily activity log (AR at 196-209) in July, 1998, wherein she noted her functional ability to perform only limited daily tasks.
Perryman submitted an affidavit (AR at 535-36) dated October 24, 1999, wherein she states in part:
1. Since 1994, I have been suffering from [CFS]. After I first became sick, I tried to continue working part-time, but this caused my symptoms to get worse. I have been unable to work since March 1. 1997.
2. In 1998, I moved to a small town in Texas to try to rest and recover from my illness.
3. Since I have been sick, if I try to do too much, I get extremely exhausted to the point I spend an entire day or more resting or sleeping. In the last six months, there have been many occasions where I have been unable to do anything all day because of exhaustion. For example, one time I decided to walk the four blocks to town and back in order to build up my strength. As a result of walking that far, the next day I was in bed all day. On another occasion, I tried to do some leg exercises in order to strengthen my legs. I bent my knees and contracted my thigh and butt muscles three times. As a result of this activity, I was in bed for two days. Just recently, while I was visiting one of my daughters in Arizona, I flew to Las Vegas to spend the weekend with my daughter and son-in-law. On Friday, I took the plane flight to Las Vegas and then went out to dinner with my daughter and her husband. As a result, I was so exhausted that I spent Saturday, Sunday and Monday in bed.
4. Since I have been sick, I have had problems with my memory and concentration. For example, sometimes when I’m in my car, I can’t remember where I am going. One time, I pulled up to a stop sign and knew I was supposed to stop. However, I forgot that I needed to remain stopped until the traffic had cleared and almost got into an accident.
5. Before I got sick, I used to drive approximately 30,000 miles per year. Now, just driving 20 minutes to see my doctor and then driving home is all I can do in one day. Many days I am too exhausted even to drive the four blocks to town in order to pick up my mail.
7. I am not currently able to work 40 hours a week. I cannot even work two hours a day.
(19) Evidence From Friends and CoWorkers
Lucinda Jensen, who was Perryman’s administrative assistant for approximately two years starting in the spring of 1994, provided an affidavit (AR at 529), dated October 25, 1999, in which she stated in part:
2. During the time that I was working for Nancy, she was already sick. During that time, she had problems with a lack of energy as well as problems with her memory.
3. As Nancy became more ill, she moved her office into her home. There were some days when she was too ill to even get out of bed. This was very much unlike her. There were some days that she was so sick that it took her all morning just to fix her hair and get her makeup on.
4. During the time I worked for Nancy Perryman, there were days when she was too fatigued to work.
Bobbi Moore, a Texas friend of Perry-man who saw her nearly very day between March and December of 1998, provided an affidavit (AR at 533), dated October 15, 1999, in which she stated in part:
2. In 1998, Nancy had good days and bad days. When Nancy was having a good day, we would go for a walk in the morning. We would generally walk between one half and one miles [sic].
3. When Nancy was having a bad day, she could hardly walk. On bad days, Nancy would spend a great deal of time in bed.
4. When Nancy first moved to Texas, she was having bad days nearly all .of the time. Later in 1998, she was having bad days only about one half of the time.
Carl Osterman, Perryman’s certified public accountant for eight or nine years, provided an affidavit (AR at 530), dated October 14, 1999, in which he stated in part:
2. Since Nancy became sick, she has had problems with her concentration. There are times when she will be conversing normally and then loses her concentration. During these times, she has a spaced-out look and is unable to follow our conversation.
3. Nancy’s problems with concentration are completely unlike how she was before she got sick.
Nancy was still having problems with concentration during the last two years.
Janis Ware, a Texas clinical aesthetician, who provided some eighteen muscle toning treatments to Perryman, three times a week for approximately six weeks, provided an affidavit (AR at 532), dated October 22,1999, in which she stated in part:
4. Approximately 25% of the time I have seen Ms. Perryman, she appeared totally exhausted. Additionally, she canceled two appointments because she was too exhausted to drive to the therapy session. Ms. Perryman falls asleep during nearly all of her therapy sessions as a result of exhaustion from the thirty minute