RAYMOND P. MOORE, United States District Judge.
This consolidated matter alleges failure to pay disability benefits and arises under the Employee Retirement Income Security Act ("ERISA") and other employer obligations. Plaintiff Marc Kouzmanoff is a former sales representative for Thomson Reuters Holdings, Inc. ("Thomson Reuters"). He developed diabetes in 2001 and, in 2016, applied for disability benefits pursuant to short-term and long-term plans ("STD Policy" and "LTD Policy") administered by Unum Life Insurance Company of America ("Unum"), asserting that performing the duties of his employment involved a high risk of injury or mortality due to his inability to control his blood sugar. Unum denied both benefit types, and Kouzmanoff filed separate actions against Thomson Reuters and Unum that have since been consolidated. (ECF No. 23.)
Before the Court is the administrative record in the Unum case (AR, ECF Nos. 69, 69-1, 75) and Thomson Reuters's Motion for Partial Summary Judgment (PSJ-Motion, ECF No. 78),
Kouzmanoff, born on October 6, 1951, worked for Thomson Reuters for 30 years—from July 10, 1986 to October 6, 2016. (AR 5, 134.) As a "Field Account Manager," he communicated with and drove to Colorado businesses to present, demonstrate, and sell Thomson Reuters's legal, tax, and accounting products. (Id. at 444.)
A. Relevant Disability Benefit Policies
This case centers on two separate benefit plans: the STD Policy and LTD Policy. The STD Policy—which is not a plan under ERISA—is self-funded by Thomson Reuters and "replaces a portion of [a claimant's] income in the event a sickness or injury prevents [him] from working for a period of time." (Statement
The STD Policy is administered by Unum: "When making a benefit determination under the [STD] Policy, U[num] has the exclusive and final discretionary authority to determine your eligibility for benefits and to interpret and enforce the terms and provisions of the [STD] Policy." (STD Policy at 8; see also Am. Compl. ¶ 4, ECF No. 55.) Whether or not Unum or Thomson Reuters is more appropriately dubbed its "administrator" in name,
Kouzmanoff was also a beneficiary of the LTD Policy, of which Thomson Reuters was policyholder and Unum benefits provider. (AR 45; Unum Answer ¶ 2, ECF No. 13.) Like the STD Policy, the LTD Policy provides financial protection in the event of disability, but over a longer term. (AR 46.) Its elimination period is the later of 180 days or the end of short-term benefits under the STD Policy. (Id. at 47-48.) The LTD Policy offers employees several coverage options. Relevant here, benefits could include up to 66.6667% of monthly earnings—to a maximum benefit of $15,000 per month—for up to 42 months, minus any deductible sources of income. (Id. at 7, 11, 48, 61.)
Both policies set forth the relevant definitions and procedures governing a claimant's path to benefits. Under both, an employee is "disabled," and therefore entitled to benefits,
Both policies require the same information as proof of claim. A claimant must show (1) that he is under the regular care of a physician; (2) appropriate documentation of his weekly earnings; (3) the date his disability began; (4) the cause of his disability; (5) the extent of his disability, including restrictions and limitations preventing him from performing his regular occupation; and (6) the name and address of any hospital, institution or other treatment source, including all attending physicians' names and addresses. (AR 50; STD Policy at 7.)
The policies provide appeal processes. Pursuant to the STD Policy, after making a negative determination, Unum provides a notice of denial in writing, giving the specific reason(s) for the denial; the policy provision(s) on which the denial is based; an explanation of a right to appeal; and the claim review procedure. (STD Policy at 8.) The LTD Policy provides that, after denying a claim, Unum will provide that same information and, additionally, any material or information necessary to complete the claim and why such information is necessary; disclose any internal rule, guidelines, protocol or similar criterion relied on in making the adverse determination; and describe a claimant's right to obtain information about those procedures and the right to bring a lawsuit under Section 502(a) of ERISA following an adverse determination from Unum on appeal. (AR 82-83.) In support of a LTD Policy appeal, the claimant may submit new information, and Unum affords no deference to the prior determination. (Id. at 83.) Moreover, Unum reviews appeals via different personnel than who made the initial determination. (Id. at 83-84.)
B. Kouzmanoff's Diabetes and Unum's Denial of STD and LTD Policy Benefits
In 2001, Kouzmanoff developed type-1 diabetes. (Unum Answer ¶ 31.) He has since treated with several physicians. Dr. Ken Cohen, M.D., reports that Kouzmanoff had worsening control of his diabetes from 2011 onward. (Id. ¶¶ 32-33.) On July 21, 2015, Kouzmanoff visited Dr. Cohen "to discuss DM
On February 23, 2016, Kouzmanoff returned to see Dr. Cohen, who recorded:
(Id. at 116.) The notes from this visit further indicate that Kouzmanoff's metabolic panel labs show a fasting glucose of 158 MG/DL. (Id. at 120.) Dr. Cohen forwarded this record to Unum on April 18, 2016. (Id. at 122.)
On March 17, 2016, Kouzmanoff initiated a STD Policy claim for "type 1 diabetes complications." (Id. at 92.) He initially provided documentation from Dr. Cohen, which stated that, based on the February 23, 2016 office visit, Kouzmanoff had ketoacidosis (diabetes mellitus type 1) that was not work-related, would undergo a
On April 5, 2016, Unum interviewed Kouzmanoff pursuant to its claim process. (Id. at 104-05.) In response to an inquiry as to what had changed such that he could no longer work, Kouzmanoff answered
On April 14, 2016, Kouzmanoff visited an endocrinologist, Dr. Michelle Cassara, M.D., who assessed him as "Type 1 DM uncontrolled." (Id. at 159.) Here too, Kouzmanoff selectively edits from the notes. While the brief fairly recounts Dr. Cassara's overview of medication, dosage, overnight lows, and post-breakfast blood sugar elevations ("especially on days off"), it drops a convenient ellipsis to cover this: "[Kouzmanoff] has [a] new job at the golf course (very active with push mower) that he only started three days ago. Has not adjusted insulin doses for this." (Id. at 159.)
On April 20, in response to an information request from Unum asking what Kouzmanoff should or cannot do, Dr. Cassara responded that he had no limitations at all, including "no limitations on exercise. Should be able to test blood sugars up to 6 times per day. Needs to carry food with him." (Id. at 126, 134.) Also on April 20, 2016, Unum reviewed Kouzmanoff's STD Policy claim, including the notes and communications elucidated above. Among other findings, they concluded that Kouzmanoff has severe work-related stress that impacts his ability to control his blood sugar. (Id. at 129.) And they noted that the "medical [records] reflect that the claimant has poorly controlled dm; however does not have much in the way in the way of DM related complications beyond mild peripheral neuropathy and ED."
That day, Kouzmanoff wrote to Unum, from which his brief again employs selective quoting. (Compare AR 134 with ECF No. 64, at 6.)
On May 9, 2016, Unum personnel convened again (with different reviewers). (Id. at 162.) On May 11, Unum told Kouzmanoff over the phone that the "medical documentation does not support inability to do his occupation." (Id. at 164.) Additionally, Unum noted that while Dr. Cohen suggested that severe work-related stress was impacting the diabetes, the STD Policy does not cover any disability caused or contributed to by, or resulting from, an
On June 24, 2016, Dr. Cohen provided Thomson Reuters with a letter giving approval for Kouzmanoff to return to work with certain restrictions. (Unum Answer ¶ 44.) Per the letter, Kouzmanoff would require frequent breaks to check blood sugar and time to manage it if elevated. (Id.) He would also need to avoid stressful situations or work—meaning not working on a production quota basis and keeping meetings with prospective customers to a time limit. (Id.) Dr. Cohen reiterated that such situations and related stress caused Kouzmanoff to lose track of blood sugar levels. Moreover, the letter asked Thomson Reuters to consider a reduction in hours, noting that it would be healthier for Kouzmanoff to maintain a "9 to 5 window." (Id.) In response, on July 1, 2016, Thomson Reuters offered Kouzmanoff modified employment that complied with the restrictions set out by Dr. Cohen. (AR 175.) In this "Sales Consultant" position, he would mentor and train new associates at his current base salary through September 30, 2016. (Id.) Kouzmanoff accepted this position.
On July 8, 2016, Dr. Cohen provided Unum with another letter which stated:
Thomson Reuters terminated Kouzmanoff on October 6, 2016. (Unum Answer ¶ 47.)
(Id. at 379.) On October 21, 2016, Unum denied Kouzmanoff's application for benefits under the LTD Policy, and it denied his appeal on February 10, 2017. (Id. at 407-13, 481-87.) In its decisions, Unum considered the physical and cognitive demands of the position, finding that it involved frequent sitting, occasional standing, occasional walking, occasional lifting of up to 20 pounds, frequent reaching and handling, occasional keyboarding and stooping, influencing and dealing with people, and making judgments and decisions. (Id. at 482.)
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted). "Statutory interpretation is a matter of law appropriate for resolution on summary judgment." Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011).
B. ERISA Benefits Determination
Kouzmanoff's claim against Unum is brought pursuant to 29 U.S.C. § 1132 (a)(1)(B), which he and Unum agree affords de novo review of the administrative record.
A. Motion for Partial Summary Judgment
The Colorado Wage Claim Act, Colo. Rev. Stat. Ann. § 8-4-101, et seq., is designed to ensure that employees are paid fully for any compensation they are owed by their employers. Where an employer has refused or failed to pay an employee, the Act gives statutory rights to the employee which can result in substantial damages and penalties if the employer refuses to comply with those rights. The PSJ-Motion presents a narrow, specific legal question. Are short-term disability benefits, as provided for in the STD Policy,
When construing a state statute, courts ascertain and give effect to the intent of the Colorado General Assembly and refrain from rendering judgments inconsistent with that intent. Walker v. People, 932 P.2d 303, 309 (Colo. 1997); Farmers Ins. Exch. v. Bill Boom, Inc., 961 P.2d 465, 469 (Colo. 1998). To determine legislative intent, courts look first to the statute's plain language. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997); City of Westminster v. Dogan Constr. Co., 930 P.2d 585, 590 (Colo. 1997). If courts can give effect to the ordinary meaning of words used by the legislature, the statute should be construed as written, giving full effect to the words chosen, as it is presumed that the General Assembly meant what said. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333, 1337 (Colo. 1996); PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 545 (Colo. 1995); see also Colo. Rev. Stat. Ann. § 2-4-101 (1999) ("Words and phrases shall be read in context and construed according to ... common usage."). If the statutory language is clear and unambiguous, courts need not look further. See Town of Superior v. Midcities Co., 933 P.2d 596, 600 (Colo. 1997); Boulder County Bd. of Equalization v. M.D.C. Constr. Co., 830 P.2d 975, 980 (Colo. 1992). However, where the words chosen by the legislature are unclear in their common understanding, or capable of two or more constructions leading to different results, the statute is ambiguous. See Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298, 1302 (Colo. 1996); see also Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (discussing disregard for the plain meaning if construing a statute according to its terms would lead to an "absurd" result).
If a statute is ambiguous, courts move on to consider (a) the object sought to be attained; (b) the circumstances under which the statute was enacted; (c) the legislative history, if any; (d) the common law or former statutory provisions, including laws upon the same or similar subjects; (e) the consequences of a particular construction; (f) the administrative construction of the statute; and (g) the legislative declaration or purpose. Colo. Rev. Stat. Ann. § 2-4-203; see also State v. Nieto, 993 P.2d 493, 500-01 (Colo. 2000).
Beginning with the Act's plain language, "wages" or "compensation" means:
But there is some ambiguity in construing these terms in the Act. A symptom of this problem is that the Colorado courts themselves have somewhat collapsed the definitions of "earned," "vested," and "determinable" into each other. See Barnes v. Van Schaack Mortg., 787 P.2d 207, 209 (Colo. App. 1990) ("Under the Wage Claim Act, compensation is earned if it is vested pursuant to an employment agreement at the time of an employee's termination."); Rohr v. Ted Neiters Motor Co., 758 P.2d 186, 188 (Colo. App. 1988) ("[Employee's] bonus was earned and, therefore, became vested and determinable as of the date of termination, even though not due and payable for two and one-half months thereafter.").
The "purpose of the [Act] is to ensure that wages are paid in a timely manner and to provide adequate judicial relief in the event wages are not paid. The [Act] should be liberally interpreted to serve its purpose. An employer is liable under the [Act] if the employer does not pay an employee wages he or she earned." Fang v. Showa Entetsu Co., 91 P.3d 419, 421 (Colo. App. 2003) (internal citation omitted, emphasis supplied). After its enactment, parties hotly litigated whether compensation such as bonuses and commissions yet unpaid had been "earned" by the time of the employee's discharge or resignation within the meaning of the Act. See, e.g., Barnes, 787 P.2d at 210 (concluding that a plaintiff loan originator did not "earn" commission compensation under the employment agreement for loans that closed in the months following his termination); Rohr, 758 P.2d at 187-88 (finding bonuses related to a profit-sharing plan to be "earned" months before they were required to be paid). In 2003, the Colorado General Assembly changed the definition of "compensation or wages" to include the "earned," "vested," and "determinable" requirements. At that time, it also added clear substantive provisions clarifying that commissions, bonuses, and vacation pay are wages—but only insofar as the same are earned "in accordance with the terms of any agreement" between the employer and employee. That language signals the General Assembly's aversion to employees relying on indefinite, possible remittances. Thus, the amendments reinforced the view, expressed in Barnes, that the "Act does not itself create any substantive right to compensation for labor and services performed. Rather, it establishes minimal requirements concerning when and how agreed compensation must be paid." Barnes, 787 P.2d at 210 (emphasis in original).
Based on its review of the language, purpose, and history of the Act, the Court finds that Kouzmanoff has failed to show that STD Policy benefits are wages or compensation for two reasons. First, these benefits are not "amounts for labor or
Even were the Court to temporarily assume that STD Policy benefits are for labor or services, the Court does not view them as vest-able as a matter of law. As written, Kouzmanoff cannot ever have a "completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute," see Vested, Black's Law Dictionary (10th ed. 2014), under the STD Policy because Thomson Reuters retained the unilateral right to cancel the policy at any time, for any reason or no reason at all. Disagreeing, Kouzmanoff likens these benefits to vacation pay—which is not tethered to any concurrent work performed—now comprehended by the Act. (ECF No. 84, at 6 (citing Colo. Rev. Stat. Ann. § 8-4-101(14)(a)(III)).) But while vacation pay may be a cousin to the benefits at hand, it is a distant one. As discussed above, the Act was amended to include, as wages, "[v]acation pay earned in accordance with the terms of any agreement." (Id. (emphasis supplied).). Thus, the amendment established vacation pay as wages, but only insofar as the same is clearly provided for in a contract and accumulated as set forth therein. By contrast, the STD Policy—established unilaterally by Thomson Reuters— retains with its maker the power to cease short-term benefits altogether for any reason or no reason at all. These benefits are better viewed as status perks, such as free parking or a cafeteria, to which employees have no vested wage claim should an employer discontinue them. While Kouzmanoff was fortunate to work for a company that kept the temporary disability of its employees in mind with the STD Policy, to suggest that an employee has a vested statutory wage interest in unilaterally terminable benefits would enlarge the Act far beyond its language and purpose. Thus, summary judgment in favor of Thomson Reuters is appropriate on Kouzmanoff's claim under the Act.
B. Based on the administrative record, Kouzmanoff is not entitled to Benefits under the LTD Policy.
Kouzmanoff argues two broad categories of wrongs committed by Unum in denying him LTD Policy benefits. First, he submits that Unum failed to consider his actual job duties in finding that he was not disabled. (ECF No. 64, at 13-15.) Second, he urges that his inability to work under a quota system, under stress, and with urgent time pressures rendered him
Turning to the coverage, courts interpret insurances policies according to their plain meaning. Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818, 829 (10th Cir. 2008). "[T]he proper inquiry is not what [the provider] intended a term to signify; rather, [courts] consider the common and ordinary meaning as a reasonable person in the position of the plan participant would have understood the words to mean." Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1249 (10th Cir. 2007) (internal quotation marks and alterations omitted). Courts review an ERISA benefits denial claim as "they would any other contract claim by looking to the terms of the plan and other evidence of the parties' intent. If plan documents are reviewed and found not to be ambiguous, then they may be construed as a matter of law." Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1203 (10th Cir. 2013) (citations omitted). "Ambiguity exists when a plan provision is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of the term." Admin. Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir. 2004) (internal quotation marks omitted). The contra proferentem doctrine, which construes all ambiguities against the drafter, applies to de novo review of ERISA plans. Miller, 502 F.3d at 1249, 1253. "ERISA imposes upon providers a fiduciary duty similar to the one trustees owe trust beneficiaries. Just as a trustee must conduct his dealings with a beneficiary with the utmost degree of honesty and transparency, an ERISA provider is required to clearly delineate the scope of its obligations." Id. at 1250 (internal citation omitted).
Under the LTD Policy, an employee is "disabled," and therefore entitled to benefits, if he is "limited from performing the material and substantial duties of [his] regular occupation
1. Kouzmanoff has not proven occupational limitations.
The parties agree on the scope of Kouzmanoff's material and substantial duties as a Field Account Manager. He was to achieve business objectives and sales revenue targets within his geographic territory, work in a highly competitive environment under a quota system, build and maintain strong relationships, meet urgent deadlines, travel, and work from a home office. Unum analyzed these demands with
As evidence of inability to rise to these challenges, Kouzmanoff only addresses his specific occupational demands, rather than those which are reflected by an analysis of his position in the national economy. Kouzmanoff provided medical records from three doctors—Dr. Cohen, who suggested that he should not perform the quota-related, stressful, or time-sensitive aspects of his specific occupation; Dr. Cassara, who found no occupational or physical limitations whatsoever; and Dr. Tsvetkova, who reported only that Kouzmanoff felt good and had no complaints. Kouzmanoff himself intimated on April 5, 2016 that he felt to be in his "prime" and would be ready to return to work "tomorrow." He even picked up a new job at the golf course and lifted weights, both of which further evidence his physical capabilities. Moreover, the record is bereft of facts undermining Kouzmanoff's mental acuity, nor does it illustrate any connection between diabetes and impaired cognitive function. That said, Kouzmanoff highlights what he believes to be a determinative fact: Thomson Reuters offered him a more relaxed replacement job. But that offering, provided in response to Dr. Cohen's assessment and Kouzmanoff's representation that he would not return to work in his previous capacity, does not bear on whether Kouzmanoff was actually capable—mentally or physically— of performing under stress or meeting the other cognitive demands of his prior role, and the Court does not assume that Thomson Reuters's made a correct evaluation. In fact, there is no evidence that the two roles demanded varying qualifications or abilities as they would be understood in the national economy—even if the latter just so happened to cause Kouzmanoff less stress. On the available record, the Court is not persuaded that any profession— "Field Account Manager," "Sales Consultant," or "Lakewood Golf Course Caretaker" included—is stress-free. And at any rate, "stress" is not a diagnosed disability for which Kouzmanoff claimed entitlement to benefits. Nor does the record reflect that he is more stress-prone than any abled laborer. Additionally, the record does not indicate that Kouzmanoff's diabetes, poorly managed as it was, is disabling: It had no recorded effect on his performance and certainly did not keep him from working, even in 2015, when he outright refused to reduce his hours, or in 2016, when he was feeling in his prime. Moreover, there is no medical data showing continued poor blood sugar readings. Finally, Kouzmanoff has a not shown how he met the elimination period requirements—especially considering his representations about how healthy he felt at the same time he was claiming a right to disability benefits.
2. Even if the Court assumes Kouzmanoff had an occupational limitation, Kouzmanoff has not shown by a preponderance of the evidence that his diabetes was the limitation's source.
For a moment, the Court assumes that "the inability to work under a quota system [and] under stress and urgent time pressures" is a limiting disability. (ECF No. 64, at 15.) But here, what is this disability's cause? The Court has no doubt that Kouzmanoff's diabetes does not make his working life any easier. But Kouzmanoff says his diabetes "rendered him unable to endure these conditions of employment." (Id. at 16.) The Court first determines what level of causation the LTD Policy requires before turning to whether the record supports finding—by a preponderance of the evidence—that
In the ERISA plan context, the Tenth Circuit had found the phrase "due to" to be ambiguous: "The words do not speak clearly and unambiguously for themselves. The causal nexus of `due to' has been given a broad variety of meanings in the law ranging from sole and proximate cause at one end of the spectrum to contributing cause at the other." Kimber v. Thiokol Corp., 196 F.3d 1092, 1100 (10th Cir. 1999). In Kimber, the Circuit evaluated the district court's affirmation, under an arbitrary and capricious standard, of a plan administrator's determination that the "due to" language in the plan required disability be "due, at least in significant part, to" a mental condition. Id. In upholding the district court—and thus, the administrator—the Circuit found that when "given authority to interpret the plan language, and more than one interpretation is rational, the [interpreter] can choose any rational alternative. Requiring a `significant' relationship between the condition and the disability is a rational interpretation." Id. (further noting that the "due to" language was ambiguous and open to interpretation); see also Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818, 832-33 (10th Cir. 2008) (discussing appropriate cause standard in ERISA plan context and noting the First Circuit's rejection of a complicated proximate cause analysis in favor of "viewing the policy as an ordinary policyholder would"). Here, reviewing de novo, the Court sits in the same capacity as the plan administrator in Kimber and may opt to analyze the "due to" language in the LTD Policy under any rational causation standard.
Using the language discussed in Kimber, the Court sees no significant relationship between Kouzmanoff's diabetes and his professed occupational limitations. The causes proffered by both sides include diabetes, heart problems, work-related stress, a quadruple type-A personality, burnout, and improper disease management by Kouzmanoff himself. Without any evidence that Kouzmanoff was physically limited for the long term—and with substantial evidence to the contrary—the Court narrows on whether his diabetes bears a substantial nexus to his inability to cope with the cognitive pressures of his position.
Of the potential causation candidates, the Court views diabetes as the least fairly attributable source of Kouzmanoff's mental occupational difficulties. Tellingly, when Kouzmanoff left his position—only to start a side project cutting grass—he felt himself to be in excellent shape and healthy, but did not want to return for fear of continued stress, deadlines, and potentially missing out on a bonus. He was reticent to re-enter a stressful environment and hit sales figures because he knew—based on performance the previous year—the potential financial detriment of suboptimal achievement. The record does not reflect that his diabetes is the variable that governs whether or not he can work. As even his most sympathetic doctor maintained, Kouzmanoff's work-related stress, habits, diet, medication inconsistency, and highly driven personality (or some combination thereof) contributed to his diabetes mismanagement, and these are the only recorded factors which mark the difference between the person who was able to work and the one who claims he no longer can. Stated another way, Kouzmanoff had diabetes in 2014 and diabetes and stress in 2016, and it was only in 2016 when Kouzmanoff felt he had to cease working. Thus, to the extent he could be thought of as disabled, such disability was not the result of diabetes but of the other listed factor(s),
For the foregoing reasons, the PSJ-Motion (ECF No. 78) is
Finally, the Court notes that there are no direct records of this December 30, 2015 to January 3, 2016 hospitalization. From the information available, it appears that Kouzmanoff was hospitalized for "diabetic ketoacidosis in the context of viral pericarditis," which is a heart condition and has low frequency of recurrence. (See, e.g., AR 356-57, 378, 384, 471, 475, 483.)