Opinion
04 Civ. 9797 (NRB).
August 10, 2006
MEMORANDUM AND ORDER
Donald Graham ("plaintiff" or "Graham"), a 66 year old male, brings this action against First Reliance Standard Affirmative Life Insurance Company ("First Reliance") and Penn Maritime Group Long Term Disability Insurance Plan (collectively, "defendants") to challenge the denial of disability pension benefits under an employee benefit plan governed by the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff seeks money damages and a declaratory judgment that he was entitled to the benefits which he was denied. Defendants now move for summary judgment. For the reasons set forth below, defendants' motion is denied.
BACKGROUND
Except where indicated, there are no genuine issues regarding the following facts.
Throughout his employment, plaintiff was covered under the Group Long Term Disability Insurance Program Plan (the "LTD Plan") insured under a policy (the "Policy") issued by First Reliance. Def. 56.1 Stmt. ¶ 1; Pl. Resp. ¶ 1. In order to qualify for long term disability payments, members must meet the definition of Total Disability, which requires that "an insured cannot perform the material duties of his/her regular occupation" through an Elimination Period of 180 consecutive days and for the first 60 months for which benefits are payable. AR 151, 258.
The definition states in part:
"Totally Disabled" and "Total Disability" mean, that as a result of an Injury or Sickness: (1) during the Elimination Period and for the first 60 months for which a Monthly Benefit is payable, an insured cannot perform the material duties of his/her regular occupation; . . . (2) after a Monthly Benefit has been paid for 60 months, an Insured cannot perform the material duties of any occupation. Any occupation is one that the Insured's education, training or experience will reasonably allow. We consider the Insured Totally Disabled if due to an Injury or Sickness he or she is capable of only performing the material duties on a part-time basis or part of the material duties on a Full-time [sic] basis.
AR 151.
In addition, the Policy provides:
INSURING CLAUSE: We will pay a Monthly Benefit if an Insured:
(1) is Totally Disabled as the result of a Sickness or Injury covered by this Policy;
(2) is under the care of a regular Physician;
(3) has completed the Elimination Period; and
(4) submits satisfactory proof of Total Disability to us.
AR 156.
Approximately three years before he stopped working, plaintiff began noticing symptoms of Parkinson's disease. Def. 56.1 Stmt. ¶ 7; Pl. Resp. ¶ 7. After leaving employment, plaintiff was found to be "disabled" under the Short Term Disability Plan (the "STD Plan") and received benefits for the full 26 weeks of eligibility, until June 6, 2000. AR 351.
First Reliance asserts that "STD benefits are processed based on the information in the application. Long term disability benefits involve more of an investigation." Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Reply") at 9.
Initial Application
Upon the expiration of his STD Plan benefits, plaintiff timely applied for benefits under the LTD Plan in July 2000. Complaint ("Compl.") ¶ 20; Answer ("Ans.") ¶ 20; AR 350. In his application, plaintiff stated that he was unable to work due to "difficulty concentrating on [sic] job." AR 350. He also listed two medical practitioners he had consulted: Dr. Itzhak Haimovic, his treating neurologist, and Dr. Marius Pessah, his treating internist. AR 351.
In an accompanying form, Dr. Pessah indicated that plaintiff's symptoms included "limited moveability [sic] . . . as well as [sic] concentration and writing." AR 352. Dr. Pessah also checked off on the form that plaintiff was able to stand, sit, walk, or drive only one to three hours during an eight hour work day. AR 353. Though plaintiff was able to use his upper extremities for simple grasping, pushing/pulling, and fine manipulation, Dr. Pessah indicated that plaintiff's ability to do so was limited.Id. Dr. Pessah also noted that he had referred plaintiff to Dr. Haimovic in order to treat his Parkinson's Disease and to a physical therapist for exercises "to build up the muscles in the legs." AR 297, 352. Dr. Pessah checked off "yes" in response to the question of whether plaintiff had achieved maximum medical improvement and wrote that plaintiff could "never" return to work. AR 353.
Dr. Pessah also submitted office records pertaining to plaintiff's treatment, as well as a Nervous System Questionnaire (the "questionnaire"), dated July 10, 2000. AR 282. In response to a list of options presented on the questionnaire, he indicated that plaintiff suffered from tremors, "disturbance of tone and posture," "disturbance of synergestic movements, such as basal ganglia disease," and "complex manual and gait disturbances." AR 280. He also noted that plaintiff experienced language disturbance, specifically from dysphasia. AR 280. Finally, Dr. Pessah indicated that plaintiff suffered from "severe impairment of complex, integrated CNS function such as to render [plaintiff] unable to care for self in any situation or manner." AR 281.
Dysphasia is defined as "[i]mpairment in the production of speech and failure to arrange words in an understandable way; caused by an acquired lesion of the brain." Stedman's Medical Dictionary, (27th ed. 2000).
Also enclosed in these office records were letters and records of others that had treated plaintiff on a referral basis. In an October 6, 1997 letter to Dr. Pessah, approximately two years before plaintiff left work, Dr. Haimovic stated that plaintiff's chief complaint had been "clumsiness affecting his right arm." AR 323. Dr. Haimovic stated that plaintiff had complained of "difficulties with his handwriting, micrographia as well as slowness of gait." Id. He also wrote that plaintiff had noted "slurring of speech" and "weakness and numbness of his extremities." Id. At that time, plaintiff's sensory responses and coordination were deemed "normal." Id. Dr. Haimovic ultimately concluded that plaintiff was "manifesting signs of early Parkinsonism." Id.
An earlier, February 3, 1997, letter from Dr. Haimovic also was included which made no significant findings. AR 320-21.
A subsequent Electroencephalography ("EEG") and MRI were performed, and results for both were "normal." AR 324-25.
Dr. Haimovic's subsequent treatment notes from a March 25, 1999 visit by plaintiff concluded that plaintiff was "[s]lightly more symptomatic." AR 328. However, plaintiff "denie[d] headaches, diplopia, slurring of speech, weakness or numbness of his extremities." Id. He also "decline[d] any more medications."Id. In a letter to Dr. Pessah dated September 14, 1999, Dr. Haimovic reported that plaintiff admitted to "increasing shuffling, and stooping forward" and that he was "increasingly uncomfortable with his tremor," which was marked. AR 329. Plaintiff also exhibited a "slow, shuffling" gait and station.Id. Dr. Haimovic concluded that plaintiff exhibited "[i]ncreasing symptoms of Parkinsonism." Id. Both of Dr. Haimovic's entries pertain to the period before plaintiff stopped working.
A November 20, 1999 letter from plaintiff's physical therapist, Michelle Brett, dated shortly after plaintiff ceased employment, to Dr. Pessah also was enclosed. AR 296-97. Ms. Brett reported in part that plaintiff "ambulates without an assistive device and is independent in all [activities of daily living]." AR 296. She also noted that plaintiff "demonstrates a Parkinsonian gait pattern, . . . shows a forward head posture, slumped, stooped posture" and "exhibits an intention tremor." Id. Flexibility testing revealed "decreased trunk rotation, moderate to severe bilateral hamstring tightness, [and] bilateral pectoralis tightness." Id. However, "[c]oordination testing for finger to finger and finger to nose [was] normal," and plaintiff exhibited "good balance reactions during static and dynamic activities."Id.
Plaintiff was denied coverage on August 31, 2000. AR 275-78. In its denial letter, First Reliance cited the findings of Dr. Pessah and Ms. Brett. AR 276. It highlighted that Ms. Brett had concluded that plaintiff could "ambulate without an assistive device" and that he was "independent in all activities of daily living." Id. First Reliance stated that although plaintiff had made two office visits to Dr. Pessah after his visit with Ms. Brett, "there was [sic] no objective restrictions and limitations recorded during those visits that would prevent [plaintiff] from performing the material duties of [his] occupation which is sedentary in nature." Id.
The brief notes submitted by Dr. Pessah pertaining to visits by plaintiff on December 13, 1999 and June 23, 2000, were largely indecipherable. See AR 287.
Appeal
Plaintiff appealed this decision on September 21, 2000 without assistance of legal counsel. Def. 56.1 Stmt. ¶ 15; Compl. ¶¶ 22-23; Ans. ¶¶ 22-23; AR 271-72. In his letter appealing the decision, plaintiff stated that he had moved to a warmer climate (Nevada) at the suggestion of Dr. Pessah, in order to slow the progression of his condition. AR 271. He also stated that the side effects of his Parkinson's — "tremors, uncoordination, [sic] and weakness in the legs, [sic] insomnia" — prevented him from driving to work, performing his duties, and driving home on a daily basis." Id. He also enclosed an April 12, 2000 letter from Dr. Pessah which was addressed to Cigna Insurance Company and stated in part that plaintiff "became completely disabled on 11/01/99 due to his medical condition." AR 273.
Plaintiff originally resided in New York. AR 271.
While plaintiff's appeal was pending, his application for Social Security Disability Benefits ("SSD Benefits") was granted on November 4, 2000. The Social Security Administration (the "SSA") concluded that plaintiff had been "disabled", as defined by the Social Security Act, since October 10, 1999. Compl. ¶ 24; Ans. ¶ 24; AR 264-68.
The Social Security Act defines "disabled" in part as the "inability to engage in any substantial gainful activity." 42 U.S.C. § 423 (d) (1) (A); Compl. ¶ 24; Ans. ¶ 24.
First Reliance denied plaintiff's appeal by letter dated November 14, 2000. Def. 56.1 Stmt. ¶ 16; Pl. Resp. ¶ 16; AR 257-60. In support of its conclusion, First Reliance cited Dr. Haimovic's findings, noting that while the "records suggest that you had symptoms that may have been limiting, there is no reference to actual restrictions nor is ceasing work discussed." AR 259. It also alluded to Dr. Pessah's August 21, 1999 office note, stating that while it referenced plaintiff's complaints that his Parkinsonism was getting worse, "at that time there in [sic] no suggestion that you were limited due to your symptoms or that you should cease work." Id. First Reliance emphasized that the first record of treatment following plaintiff's cessation of work was a November 20, 1999 note in which Dr. Pessah made no reference to plaintiff's Parkinsonism. As a result, First Reliance asserted that it was justified in relying more heavily on the findings from the next closest appointment, which was plaintiff's physical therapy referral.
First Reliance also stated that there was evidence that plaintiff had planned his departure in advance and that he was able to work until that date without any modification to his job duties. AR 260. Although plaintiff "had a long history of complaints leading up to [his] planned retirement on disability," First Reliance asserted that there was no evidence to suggest that plaintiff's symptoms increased in severity to the extent that he was "precluded from performing the material duties of [his] regular sedentary occupation." Id.
Second Review
By letter dated March 15, 2001, plaintiff requested a copy of the claim file as well as an opportunity to submit another appeal. Compl. ¶ 31; Ans. ¶ 31. First Reliance denied his request for a further appeal by letter dated March 30, 2001. AR 256. Plaintiff then filed suit on August 23, 2002. Compl. ¶ 33; Ans. ¶ 33. However, plaintiff subsequently consented to a remand of the action, with the understanding that he could submit additional evidence for consideration by First Reliance. Compl. ¶ 34; Ans. ¶ 34. The action was then remanded to First Reliance on December 20, 2002, and the complaint was dismissed without prejudice to plaintiff's right to reinstate the action. Compl. ¶ 35; Ans. ¶ 35. On January 30, 2003, plaintiff sent First Reliance letters from Dr. Steven Glyman, plaintiff's treating neurologist in Nevada, and Dr. Haimovic.
Beginning at this time, plaintiff was represented by counsel. Compl. ¶ 31.
In his January 30, 2003, letter, Dr. Glyman stated that he had begun treating plaintiff for Parkinson's in November 2001, "at which time he was disabled and unable to work." AR 254. Dr. Glyman added that "since then, [plaintiff's] health has continued to decline (increased tremors and limitations in other physical functions)," and as a result his medications were increased.Id.
In another letter dated January 22, 2003, Dr. Haimovic stated that plaintiff "is unable to write or use computers" and "is unable to drive because of the severity of his tremor." AR 255. He added that plaintiff "is unable to perform any activity for any sustained period of time because of the severely advanced Parkinson's disease." Id. Finally, he noted that plaintiff's Parkinson's "reduces his ability to sit, stand or walk for more than five minutes at a time and he must move about at all times. Additionally, he has difficulty with concentration, moderate depression and mild dementia." Id.
First Reliance then engaged Dr. Craig Bogen to conduct a peer review of the medical documentation in plaintiff's file. By letter dated March 7, 2003, Dr. Bogen summarized the results of his findings, ultimately concluding that he could find no medical evidence that plaintiff was disabled as of November 1, 1999. AR 249. He stated that "most of the medical records available provided little or no help in establishing or understanding the impact of [plaintiff's] symptoms on his activities at the time he stopped working, on 11/1/99." Id. However, he did state that "the physical therapist's report on 11/20/99 is the only record that gives observational and qualitative historical detail in this regard." Id.
Dr. Bogen further noted that while Dr. Haimovic had made several observations of plaintiff during his September 13, 1999 visit and also had increased his medication, he had not included an "assessment of [plaintiff's] functional status at that time, and the effect of the medication dose change are [sic] unknown." AR 248 (emphasis in original). Dr. Bogen also reviewed Dr. Pessah's handwritten office notes from around the date plaintiff stopped working, ultimately concluding that they did not appear to contain any neurological exam or comments on functional status. AR 249.
Dr. Bogen also dismissed Dr. Pessah's July 10, 2000 questionnaire responses as being of "questionable reliability." AR 249. He noted that Dr. Pessah had indicated that plaintiff had dysphasia, "a disturbance of use or comprehension of language," which contradicted Dr. Haimovic's notes on October 6, 1997 that plaintiff had complained of slurred speech (dyarthria) but no language disturbance. Id. He further stated that Dr. Pessah indicated disturbances of cortical sensation despite the fact that his own office records did not document any such testing.Id. Finally, he wrote that Dr. Pessah's April 12, 2000 letter, in which he stated that plaintiff had become completely disabled on November 1, 1999, "is completely unsubstantiated by [Dr. Pessah's] office records." Id.
First Reliance subsequently denied the second appeal by letter dated March 11, 2003. AR 246. However, it added that it was "willing to review additional information as it pertains to [plaintiff's] ability to perform the material duties of his regular occupation as of November 1, 1999" so long as such information was provided within 30 days. AR 247.
Third Review
In response, plaintiff again submitted additional information. Specifically, plaintiff forwarded to First Reliance a letter from Dr. Haimovic dated April 1, 2003, which provided a summary of plaintiff's treatment history. AR 231. Dr. Haimovic noted that "[o]n 1/29/98, 7/1/98, 12/28/98, [plaintiff] has been easily fatigued, especially in the legs, and is having more tremors. . . . It is my impression he suffers from Parkinsonism." Id. He added that "[o]n 3/25/99, 7/12/99, 9/14/99, 12/2/99, [plaintiff] returned with the same complaints. Increasing tremors of the hands and increased shuffling and stooping forward. He has become increasingly uncomfortable with the discomfort with decreased mobility of the right arm. He has difficulty with stairs. He has left leg numbness, right leg and right hand heaviness." AR 232. Dr. Haimovic concluded by stating that "[g]iven the severity of [plaintiff's] condition, he requires continued care by neurologists, physical therapists and conservative management. The patient's symptoms are chronic and progressive. The patient has been totally disabled from 1999 to present." Id.
Despite the fact that plaintiff submitted additional documentation after the expiration of this time period, AR 234, First Reliance considered his submission.
On May 12, 2003, First Reliance agreed to hold the claim open in order to consider additional supporting information. Compl. ¶ 40; Ans. ¶ 40. In a June 4, 2003 supplemental letter submitted by Dr. Pessah, he stated that plaintiff's "[s]ymptoms include a severe tremor, ataxia, wobbling gait and loss of facial movement." AR 212. He added that plaintiff was "unable to work since November 1999 to the present. He is unable to work in any capacity because of his inability to function in any occupation."Id.
On July 14, 2003, Dr. Bogen conducted another peer review, focusing on the additional letters submitted by Dr. Haimovic and Dr. Pessah. AR 210. Dr. Bogen opined that "neither letter was of any additional help in answering the question at hand, namely, what was Mr. Graham's neurologic [sic] functional status when he stopped working on 11/1/99." Id. He concluded that because neither letter provided additional support for plaintiff's claim, the original opinion expressed in his March 7, 2003 report was unchanged. AR 211.
Dr. Bogen added that Dr. Haimovic's letter was "somewhat confusing" because it was dated April 1, 2003 but contained notes of neurological examination showing signs of mild Parkinsonism. AR 210. Dr. Bogen concluded that this exam was from late 1997, when the diagnosis of Parkinsonism was first made. Id.
On May 12, 2004 plaintiff forwarded additional documentation to First Reliance, consisting of Dr. Glyman's treatment records from November 21, 2001 through March 30, 2004. AR 182. Dr. Glyman's notes from November 21, 2001 state that "[plaintiff's] condition has gradually deteriorated," and that plaintiff had trouble with discomfort, low energy, and stiffness. AR 184. He also stated that plaintiff complained of "pain and weakness in his legs and tremor particularly in the right upper extremity at rest." AR 185. However, plaintiff "was observed to have normal attention and memory. Speech and language were normal." AR 186. Plaintiff's coordination and gait were both normal as well. Id.
Plaintiff's counsel has alleged that during the preceding year, it made numerous demands that First Reliance issue a decision on plaintiff's claim. Compl. ¶¶ 42-45. Documentary evidence indicates that at least two demands were made, one on July 23, 2003 and the other on August 27, 2003. AR 206-09.
Dr. Glyman's notes from a February 14, 2002 follow-up visit indicate that plaintiff could "ambulate well" and that no significant tremor or rigidity was noted. AR 204. On February 5, 2003, Dr. Glyman stated that plaintiff "[d]enies confusion or memory issues." AR 200. He noted the same on February 27, 2003, and added that plaintiff "plans to go golfing again today." AR 198. He also observed that plaintiff's tremor was "barely noticeable with outstretched hands and none at rest."Id. On March 18, 2003, Dr. Glyman noted that plaintiff had "played 36 holes of golf yesterday and was exhausted." AR 196. Dr. Glyman ultimately concluded in his March 30, 2004 letter that plaintiff "is disabled with moderately advanced Parkinson's disease. His condition is such that he cannot work. . . ." AR 184, 205.
First Reliance denied this final appeal on June 24, 2004. AR 173. It stated that although plaintiff may have had symptoms associated with Parkinson's in October 1999, he had had similar symptoms for at least the two preceding years, during which time he had demonstrated the ability to perform the material duties of his occupation. AR 175. It also noted that many of the records which plaintiff had provided dealt with plaintiff's condition substantially after October 30, 1999 and therefore were irrelevant because of the progressive nature of Parkinson's.Id. First Reliance further indicated that none of Dr. Glyman's notes were reviewed by Dr. Bogen because they began in November 21, 2001, two years after the alleged date of disability. It did, however, highlight Dr. Glyman's report that plaintiff had played 36 holes of golf as recently as March 17, 2003. AR 175.
Plaintiff subsequently filed this action on December 14, 2004. After attempts at mediation failed, defendants filed the instant motion for summary judgment on February 10, 2006.
DISCUSSION
A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the evidence submitted must be viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Even if parties dispute material facts, summary judgment must be granted "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."Golden Pacific Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (internal citations and quotation marks omitted).
The parties agree that First Reliance's decision to deny plaintiff benefits is subject to de novo review. De novo review is required "unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). First Reliance does not argue that it has been given such discretionary authority, and therefore de novo review applies. See Lauder v. First Unum Life Ins. Co., 284 F.3d 375, 379 (2d Cir. 2002); Kinstler v. First Reliance Standard Life Ins. Co., 181 F. 3d 243, 249 (2d Cir. 1999) ("The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies."). In addition, plaintiff bears the burden of proving that he is eligible to receive benefits. See Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006) ("[A]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered.") (quoting Mario v. P C Food Markets, Inc., 313 F.3d 758, 765 (2d Cir. 2002)); Troy v. Unum Life Ins. Co. of America, No. 03 Civ. 9975 (CSH), 2006 WL 846355, at *11 (S.D.N.Y. March 31, 2006).
First Reliance does not dispute that plaintiff has been diagnosed with Parkinson's or that both of plaintiff's treating physicians concluded that plaintiff was totally disabled at the time he left employment. Rather, First Reliance asserts that these conclusions were unsubstantiated by the doctors' treatment records and also were contradicted by treatment notes from plaintiff's physical therapist as well as certain notes from his subsequent treating physician in Nevada. First Reliance argues that summary judgment is appropriate because of these contradictions as well as plaintiff's failure to provide the necessary support for these medical conclusions during the numerous reviews First Reliance conducted.
We recognize that ERISA plan administrators need not give special deference to the claimant's treating physician. See Black Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) ("[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation."). Nor may plan administrators "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." Id.
Here, the records of both Dr. Pessah and Dr. Haimovic do not contain extensive supporting evidence for their conclusions that plaintiff was completely disabled. In addition, evidence exists in the record which seemingly contradicts these conclusions, such as Ms. Brett's observations and some of Mr. Glyman's more recent treatment notes.
However, all of plaintiff's treating physicians — who represent the only physicians who actually examined plaintiff during the time period at issue — not to mention the SSA, concluded that plaintiff was completely disabled when he left his job. These conclusions, though perhaps lacking in extensive support, still have sufficient basis in the record such that weighing the merits of the competing assessments presented by the parties simply would not be appropriate here. Therefore, despite inconsistencies in the record, viewing the evidence in the light most favorable to plaintiff, we cannot conclude that defendants are entitled to judgment as a matter of law. In short, the issue of whether plaintiff was disabled at the time he left his job constitutes a genuine issue of material fact which we cannot resolve at this stage. Accordingly, defendants' motion for summary judgment is denied. The parties should submit letters to the Court setting forth their arguments about whether "good cause" exists to consider evidence beyond the administrative record.See Locher v. Unum Life Ins. Co. of America, 389 F.3d 288, 294 (2d Cir. 2004); Krizek v. Cigna Group Ins., 345 F.3d 91, 98 (2d Cir. 2003).
In so holding, we do not suggest that First Reliance has exhibited bad faith in its review of plaintiff's claim. Indeed, First Reliance granted plaintiff more opportunities for review than he was entitled to receive.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is denied.
IT IS SO ORDERED.