Opinion
CASE NO. 20-62528-CIV-SINGHAL/VALLE
2022-03-04
Craig SINGER, Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Defendant.
Gregory Michael Dell, Stephen Francis Jessup, Attorneys Dell & Schaefer, Chartered, Hollywood, FL, for Plaintiff. Jacob Benjamin Monk, John Edward Meagher, Jerel Charles Dawson, Shutts and Bowen LLP, Miami, FL, for Defendant.
Gregory Michael Dell, Stephen Francis Jessup, Attorneys Dell & Schaefer, Chartered, Hollywood, FL, for Plaintiff.
Jacob Benjamin Monk, John Edward Meagher, Jerel Charles Dawson, Shutts and Bowen LLP, Miami, FL, for Defendant.
SUMMARY JUDGMENT OPINION AND ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant's ("Paul Revere") Motion for Summary Judgment, filed on November 24, 2021 (the "Motion") (DE [32]). The Plaintiff ("Dr. Singer") filed a Response on December 15, 2021 (the "Response") (DE [40]). Paul Revere filed a Reply on December 22, 2021 (the "Reply") (DE [43]). Each side filed a Statement of Material Facts (DE [33] and DE [34]) based largely on the Administrative Record (DE [31]). This Motion is fully briefed and ripe for review.
Also pending is Plaintiff's Motion for Summary Judgment (DE [35]). As to that motion, Defendant filed a Response (DE [38]) and Plaintiff filed a Reply (DE [44]). While that matter is also ripe for review, the Summary Judgment Opinion and Order here renders that cross-motion moot.
I. BACKGROUND
Plaintiff Dr. Craig Singer is a former hospitalist and medical informatics physician. See DE [35], at 4. Dr. Singer has been receiving paid long-term disability benefits for approximately 13 years due to what his doctors diagnose as chronic pain caused by multi-level cervical disc disease with associate cognitive impairment. Id. On September 19, 2019, Dr. Singer received a letter from Paul Revere, the ERISA plan administrator, advising him that his benefits were being terminated. Id. at 6. Dr. Singer submitted an administrative appeal of Paul Revere's denial on March 12, 2020. Id. On April 24, 2020, Paul Revere advised Dr. Singer that it was upholding the denial of his claim. Id. Dr. Singer provided additional information in response to Paul Revere's denial on June 18, 2020. Id. And on July 20, 2020, Paul Revere reviewed the additional information and issued a final written denial of benefits. Id.
Dr. Singer initiated the present action alleging that Paul Revere's denial of benefits constitutes a breach of contract arising out of two individual long-term disability income insurance policies issued by Paul Revere to Dr. Singer. See (DE [5], at 2–4). In Paul Revere's Answer and Defense to Amended Complaint (DE [22], at 4), Paul Revere argues that the two policies sued upon in this action are part of an employee welfare benefit plan that is governed by ERISA. As such, Paul Revere asserts Dr. Singer's state-law claims in Counts I and II of the Complaint are preempted by ERISA. Based on the Court's review of the subsequent record and briefs to the present motion, the Parties do not dispute that ERISA controls the present action. II. LEGAL STANDARD
Under Fed. R. Civ. P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." However, in ERISA benefit denial cases, "the district court sits more as an appellate tribunal than as a trial court. It does not take evidence, but rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary." Curran v. Kemper Nat. Services, Inc. , 2005 WL 894840, at *7 (11th Cir. Mar. 16, 2005) (cleaned up). Thus, "a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exist, do not apply." Crume v. Metropolitan Life Ins. Co. , 417 F. Supp. 2d 1258, 1272 (M.D. Fla. 2006) (cleaned up). Accordingly, "[w]hile there may be unresolved factual issues evident in the administrative record," such issues "will not preclude summary judgment as they [otherwise] normally would." Hopp v. Aetna Life Ins. Co. , 3 F. Supp. 3d 1335, 1339 (M.D. Fla. 2014) (cleaned up). For these reasons, "[c]onflicting evidence on the question of disability alone cannot create an issue of fact precluding summary judgment, since an administrator's decision that rejects certain evidence and credits conflicting proof may be reasonable." Id. (citation omitted).
Under ERISA, a plan participant may bring a civil action in federal court to "recover benefits due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B). However, ERISA provides no standard for courts to review the benefits decisions of plan administrators. Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Thus, the Eleventh Circuit has established a "multi-step framework to guide courts in reviewing an ERISA plan administrator's benefits decisions." Blankenship v. Metropolitan Life Ins. Co. , 644 F.3d 1350, 1354 (11th Cir. 2011). The analysis is as follows:
(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.
(2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was arbitrary and capricious.
Id. at 1355 (citing Capone v. Aetna Life Ins. Co. , 592 F.3d 1189, 1195 (11th Cir. 2010) ). Importantly, in the court's initial de novo review, the plaintiff "bears the burden to prove that [he or she] is disabled." Glazer v. Reliance Standard Life Ins. Co. , 524 F.3d 1241, 1247 (11th Cir. 2008) (citing Horton v. Reliance Standard Life Ins. Co. , 141 F.3d 1038, 1040 (11th Cir. 1998) ). III. DISCUSSION
A. Whether Paul Revere's Benefits Decision was "wrong."
1. Burden of Proof
Paul Revere asserts that the administrator's benefits decision was not "wrong." See Motion, at 5–10. Paul Revere first points out that Dr. Singer has the burden to demonstrate he was disabled within the meaning of the Policies when the benefits were terminated. Id. at 5–6. Paul Revere cites Howard v. Hartford Life and Acc. Ins. Co. , 929 F. Supp. 2d 1264, 1287 (M.D. Fla. 2013), aff'd , 563 Fed. Appx. 658 (11th Cir. 2014) for the proposition that, "in instances where LTD benefits are once approved, and subsequently terminated, a claimant retains the burden of proving continued disability after benefits are discontinued and the administrator need not show a change in the claimant's condition." See also Clark v. Hartford Life and Acc. Ins. Co. , 2006 WL 890660, at *5 (M.D. Fla. Apr. 6, 2006), aff'd , 195 Fed. Appx. 932 (11th Cir. 2006) (same). Paul Revere additionally cites Jordan v. Northrop Grumman Corp. Welfare Ben. Plan , 370 F.3d 869, 880 (9th Cir. 2003) for the proposition that medical diagnosis by itself is insufficient to establish disability under ERISA—the movant must show inability to work. Paul Revere asserts that the existence of pain, even chronic pain, is insufficient to establish disability if one cannot prove inability to work. See Richey v. Hartford Life and Acc. Ins. Co. , 608 F. Supp. 2d 1306, 1310 (M.D. Fla. 2009) (citing Schatz v. Mutual of Omaha Ins. Co. , 220 F.3d 944, 948 (8th Cir. 2000) ) (stating an "ERISA disability is not established merely by the existence of pain, even chronic pain, in the absence of proof that the claimant's pain actually precludes him or her from working."). Dr. Singer does not dispute whether he has the burden to prove continued disability. Rather, he asserts that he has met his burden of proof based on evidence regarding his medical condition, level of treatment, consistent complaints of pain since 2005, and evidence of ongoing restrictions and limitations. Accordingly, Dr. Singer bears the burden to prove continued disability and inability to work.
2. Whether Independent Peer Reviews Support Benefits Decision
Paul Revere argues that it properly relied on the opinions of its five independent medical experts, who found no basis for significant functional physical or cognitive impairment. See Motion, at 6–8. Paul Revere asserts that, in evaluating the functionality of an ERISA disability claimant, it is under no obligation "to accord extra respect to the opinions of [Dr. Singer's] treating physicians." Blankenship , 644 F.3d at 1356. Paul Revere argues that it is "entitled to rely on the opinion of a qualified medical consultant who neither treats nor examines the claimant, but instead reviews the claimant's medical records." Richey , 608 F. Supp.2d at 1312. Moreover, Paul Revere emphasizes such reliance is "entirely appropriate even where the reviewing consultant's report rebuts the opinion of the treating physicians asserting claimant is disabled." Ness v. Aetna Life Ins. Co. , 257 F. Supp.3d 1280, 1291 (M.D. Fla. 2017) (citation omitted). Accordingly, Paul Revere contends that its decision will not be "wrong" simply because it credits the opinions of doctors that reviewed Singer's medical records over the opinions of Singer's treating doctors. See Blankenship , 644 F.3d at 1356 (finding "nothing in the record ... to conclude that [administrator] did not act reasonably in relying on the independent medical opinions or in crediting those opinions over the opinions of [plaintiff's] doctors"); Giertz-Richardson v. Hartford Life and Acc. Ins. Co. , 536 F. Supp.2d 1280, 1291 (M.D. Fla. 2008) (holding administrator was "not wrong" to credit opinions of "doctors that reviewed Plaintiff's medical records over the opinions of Plaintiff's doctors"); Corkill v. Hartford Life and Acc. Ins. Co. , 435 F. Supp. 2d 1192, 1198–99 (N.D. Fla. 2005) (ruling administrator was "not wrong" to rely on "independent medical reviewers" in denying LTD benefits even though treating physicians asserted plaintiff's "chronic neck pain ... rendered her unable to work"). Dr. Singer does not counter any of these arguments but instead focuses his argument on attacking the credibility of Paul Revere's medical experts and their findings. See Response, at 4–8.
a. Peer Reviewer Gendron
Paul Revere noted that peer reviewer Dr. Gendron's report indicated Dr. Singer's neck condition had improved substantially during the period over which benefits were paid, and a March 2018 MRI showed the disc herniations had "resolved." Id. Dr. Singer responds that Gendron's finding that the 2018 MRI fails to show any cervical herniations or a substrate for cervical radiculopathy is blatantly wrong because the 2005 and 2018 cervical MRI reports confirm disc herniation at C6-C7. See Response, at 8. Further, Singer asserts that Gendron has misrepresented the 2018 MRI report by classifying the "cervical stenosis" as mild when the report stated it was moderate. Id. Paul Revere replies that Gendron's representation was not wrong because the report included references to both moderate and mild stenosis at different levels of the cervical spine. See Reply, at 5. Moreover, Paul Revere points out that Singer did not question or dispute Gendron's assessment that the 2018 MRI report "identified no severe findings." Id. Paul Revere emphasizes that Gendron's determination that Singer's medical records did not substantiate significant functional impairment was based on the 2018 MRI report as well as (a) Singer's statement to a treating physician in May 2018 that his "intermittent neck pain did not bother him very much"; (b) the fact that the medical file lacked cervical x-rays "as would be expected in cases of significant cervical stenosis"; (c) the fact that the records lacked any "recent orthopedic, physiatry, or pain management evaluations for poorly controlled pain symptoms"; (d) the fact that "symmetry of reflexes" were observed in a January 2019 examination; (e) the fact that the records did not document "myotomal motor changes or dermatomal sensory changes consistent with cervical radiculopathy"; (f) the fact that the axial nature of Dr. Singer's reported neck pain was inconsistent with cervical radiculopathy ; (g) the fact that Singer participated in extensive travel and recreational activities like mountain climbing, safari jeep rides, etc.—activities "inconsistent with severe cervical stenosis"; and (h) the fact that Singer neither takes nor requires prescription medications to manage pain. Id. at 5–6; (DE [31-9], at 71–72).
Dr. Singer bears the burden of proof to demonstrate his continued disability. While Dr. Singer lodges persuasive attacks against the credibility of Dr. Gendron's representations concerning the presence of cervical herniations in the 2018 MRI report and Dr. Gendron's classification of "cervical stenosis," he does not rebut the numerous other bases for Dr. Gendron's conclusion. Moreover, he does not dispute Dr. Gendron's assessment that the 2018 MRI report "identified no severe findings." Additionally, Singer cannot dispute the fact that the 2005 MRI revealed three herniated discs whereas the 2018 MRI showed, at most, only one herniated disc—a clear indication of significant improvement consistent with Dr. Gendron's report. See Reply, at 3. Accordingly, because Dr. Singer has not rebutted Dr. Gendron's key conclusions and numerous bases in support, the Court finds Paul Revere's reliance on this expert opinion well-founded. b. Peer Reviewer Antaki
Paul Revere first notes peer reviewer Antaki emphasized that treating orthopedist Ludwig's examination indicated Singer's cervical range of motion was "full and painless" in May 2018, a finding inconsistent with functionally impairing neck pain. See Motion, at 8. Paul Revere cites Johnston v. Hartford Life and Acc. Ins. Co. for the proposition that LTD benefits may be denied, even though a plaintiff suffers from "chronic neck pain," if an examination of the plaintiff's "cervical spine reveal[s] [a] full range of motion." 2004 WL 1858070, at *10 (E.D. Pa. Aug. 19, 2004). Second, Paul Revere emphasizes Dr. Antaki found that the level of pain experienced by Dr. Singer did not equate to disabling pain because Singer did not require medication to manage it. See Motion, at 8. Dr. Antaki noted that Dr. Singer described the pain as an "intermittent dull ache that does not bother him very much." Id. Paul Revere cites to authority for the proposition that LTD benefits may be properly denied, even though the plaintiff complains of "chronic pain," if the plaintiff does not "take any medications for pain on a regular basis." See Shatto v. Liberty Life Assur. Co. of Boston , 2016 WL 5374106, at *14 (E.D. Pa. Sept. 26, 2016). Dr. Singer responds by asserting that Dr. Antaki incorrectly believes "neuromuscular dysfunction" is necessary to qualify for total disability. See Response, at 5. Dr. Singer further criticizes Antaki's review as cursory, emphasizing that it only reviewed records going back to May 2018 and relied on a one-time surgical consultation visit with Dr. Ludwig. Id.
Dr. Singer cites no authority to support his argument that "neuromuscular dysfunction" is not necessary to qualify for total disability. Moreover, Dr. Singer neither rebuts the finding of a full range of motion nor rebuts the proposition in the Hartford Life case, which held LTD benefits may be properly denied, even though a plaintiff suffers from "chronic neck pain," if an examination of the plaintiff's "cervical spine reveal[s] [a] full range of motion." 2004 WL 1858070, at *10. Finally, Dr. Singer neither rebuts the finding that Dr. Singer did not require medication to manage his pain nor counters the proposition in the Shatto case, which held LTD benefits may be properly denied, even though the plaintiff complains of "chronic pain," if the plaintiff does not "take any medications for pain on a regular basis." 2016 WL 5374106, at *14. Accordingly, because Dr. Singer has not adequately countered either of Dr. Antaki's key findings, the Court finds Paul Revere's reliance on this expert opinion well-founded.
c. Other Peer Reviewers
Paul Revere relied on peer reviewer Diaz-Molina, who found that Singer's activity level was inconsistent with his reported functional deficits. See Response, at 5–6. Dr. Singer counters that Diaz-Molina did not adequately explain how Singer's activity level was inconsistent with his reported functional deficits. Id. Paul Revere replies that Diaz-Molina did in fact adequately explain that Singer's "essentially normal" physical examinations in recent years, which exhibited "normal" motor strength and the absence of "active radiculopathy," were "not consistent with an impairing condition." See Reply, at 6–7. While Diaz-Molina could certainly have provided concrete examples to describe how Singer exhibited "normal" motor strength and the absence of "active radiculopathy," this lack of concrete detail is not fatal to the credibility of Diaz-Molina's report. Moreover, it is not clear Diaz-Molina would even have been able to provide such additional detail if the records she was reviewing did not in fact contain any. Accordingly, though Dr. Singer makes a creative argument in an attempt to undermine the credibility of Diaz-Molina's report, the Court finds Paul Revere's reliance on this expert opinion well-founded.
Dr. Singer additionally attacks the credibility of the findings from Dr. Brown and Dr. Critchfield. See Response, at 6–7. Dr. Critchfield found that a cognitive impairment test performed on Singer by Dr. Salmansohn was invalid because Salmansohn utilized "outdated tests." Id. Singer emphasizes that Critchfield failed to provide medical literature or scientific data to support this assertion in response to a request from Dr. Salmansohn. Id. According to Singer, Paul Revere then took Critchfield's report and presented it to Dr. Brown to be "rubber-stamped." Id. Paul Revere did not address Singer's criticism of these experts in its reply brief. Nevertheless, even though Critchfield failed to explain the basis for his conclusion to Salmansohn, it does not follow that Paul Revere's subsequent reliance on Critchfield's opinion is unreasonable per se. The authorities cited by Paul Revere make clear that it is under no obligation "to accord extra respect to the opinions of [Dr. Singer's] treating physicians," Blankenship , 644 F.3d at 1356, but rather is "entitled to rely on the opinion[s] of [ ] qualified medical consultant[s] who ... review[ ] the claimant's medical records," Richey , 608 F. Supp.2d at 1312. And this reliance is "entirely appropriate even where the reviewing consultant's report rebuts the opinion of the treating physicians...." Ness , 257 F. Supp. 3d at 1291. Dr. Singer cites no authority for, and the Court knows of no rule that, requires a claim administrator's medical expert to justify its opinion to a plaintiff's treating physician. Accordingly, the Court finds Paul Revere's reliance on the expert opinions of Dr. Critchfield and Dr. Brown well-founded. In conclusion, the Court finds that the independent peer reviews support Paul Revere's benefits decision.
3. Whether Dr. Singer's Documented Activity Level Supports Benefits Decision
Paul Revere argues that Dr. Singer's documented travel and activities support its benefits decision. See Motion, at 8–10. Specifically, as to documented activity level, Paul Revere relies upon (1) Singer's international travel and attendant activities and (2) Singer's travel blog. Id.
a. International Travel
Paul Revere asserts that courts have understood international travel to be an arduous, taxing activity that is inconsistent with a disabling medical condition. Id. at 8. See Truitt v. Unum Life Ins. Co. of Am. , 729 F.3d 497, 512–13 (5th Cir. 2013) (upholding denial of ERISA disability claim partially because claimant's "international travel" to "locales including England, France, Italy, Venezuela, Guatemala, Jamaica, and Mexico, for weeks at time" was "inconsistent with her asserted disability"); Javalera v. Saul , 806 Fed. Appx. 516, 518 (9th Cir. 2020) (upholding Social Security Administration decision that plaintiff's "neck and shoulder problems" were not disabling because plaintiff's independent travel was inconsistent with "debilitating pain"); Staples v. Berryhill , 2017 WL 1364671, at *8 (M.D. Tenn. April 14, 2017) (denying federal disability claim where plaintiff's ability to "travel cross country" indicated a "high level of function" inconsistent with disability); DiSanto v. Wells Fargo & Co. , 2007 WL 2460732, at *12 (M.D. Fla. Aug. 24, 2007) (affirming denial of LTD benefits partially because claimant's "ability to engage in long distance airline travel" was "inconsistent with [his] alleged disability").
Paul Revere cites various recent international travel and attendant activities Dr. Singer enjoyed, including trips to Peru, Colombia, Ecuador, the Galapagos Islands, Chile, India, Japan, Germany, South Africa, Israel, and Jordan. Id. at 9. In Peru, Singer made a "strenuous" 1,100-foot climb of a mountain overlooking Machu Picchu. Id. In South Africa, Singer took part in a four-day safari adventure, which included "extreme off roading" and a mountain hike. Id. In Japan, Singer toured the country for three weeks. In Germany, Singer partook in a three-week road trip, traveling about 1,800 miles by car and driving over 100 mph on the German autobahn. Id. In South America, Singer spent four days and nights on a riverboat in the Amazon rainforest. Id. In Chile, Singer hiked up a "broiling hot trail" to the top of a Chilean hill. Id. And in Jordan, Singer climbed hundreds of feet up "treacherous" pathways above an archeological site. Id. at 10. Paul Revere asserts that Singer's participation in all these trips and their attendant physical activities is inconsistent with a disabling medical condition.
Dr. Singer responds that the aforementioned vacation activities do not correlate with the ability to perform work duties 10 hours per day, four shifts per week. See Response, at 9–10. Singer seeks to distinguish Truitt on the basis that it involved willful and wanton fraud where the claimant was working while on disability and attempted to conceal his activities. Id. The claimant's activities, Singer argues, were so egregious that the insurance company sought a counterclaim recovery of $1 million in benefits. Here, unlike in Truitt , Singer states, he never attempted to conceal his travel from his doctors or Paul Revere. Singer further asserts that Javalera and Berryhill are distinguishable because those cases involved social security disability benefits, which have an "any occupation" definition that is much broader than Paul Revere's "own occupation" definition. Id. Singer then cites several cases for the proposition that the ability to travel cannot be equated with the ability to perform one's work duties. See Doe v. Unum Life Ins. Co. of Amer. , 35 F. Supp. 3d 182 (D. Mass. 2014) ; Parr v. First Reliance Standard Life Ins. Co. , 2017 WL 1364610 (N.D. Cal. Mar. 31, 2017) ; Solnin v. Sun Life and Health Ins. Co. , 2015 WL 6550549 (E.D.N.Y. Oct. 28, 2015) ; Backman v. Unum Life Ins. Co. of Am. , 191 F. Supp. 3d 1053 (N.D. Cal. 2016) ; Bowlin v. Prudential Life Ins. Co. of Am. , 2018 WL 1441175 (C.D. Cal. Mar. 22, 2018).
Dr. Singer's original cite to the Parr case was incorrect. That Westlaw cite referenced an appellate brief in the Eleventh Circuit.
The Court notes that none of the cases cited by either party are Eleventh Circuit decisions that bind this Court. Nevertheless, the cases Singer cites do not involve the same type of sustained and arduous activities that Singer engaged in over the span of several years. Doe involved trips to France, North Carolina, and the Berkshires in only a single year. 35 F. Supp. 3d at 194–95. Yet there was no evidence in that case that the claimant climbed mountains, took twice-daily four-hour safari jeep rides with "extreme off-roading," took part in 1,800-mile, three-week road trips in a foreign country, or participated in any comparably arduous activities. The Parr case involved "limited travel, particularly sitting for three flights over the course of three years." Parr , 2017 WL 1364610, at *14. Solnin involved only a single trip to Israel where the court noted that the trip alone, without any other circumstances, was insufficient to discredit the claimant's disability claim. 2015 WL 6550549, at *12. Unlike Solnin , this case involves numerous foreign trips with the various arduous activities previously discussed. Similarly, Backman involved a single vacation to the Bahamas in 2013, where the claimant experienced a flare up of the disabling condition at issue. 191 F. Supp. 3d at 1066 n.8. Finally, Bowlin involved travel plans to settle the claimant's mother's estate where there was "no information on the frequency, duration, or intensity of [claimant's] day-to-day activities or the nature of the tasks undertaken ... during [the trip]." 2018 WL 1441175, at *12 & 13 n.10. It did not involve numerous international vacations with attendant, arduous activities. Accordingly, the Court finds that Dr. Singer's documented travel and attendant activities supports Paul Revere's benefits decision.
b. Dr. Singer's Blog
Paul Revere argues that Dr. Singer's travel blog supports its benefits decision because the blog involved several hundreds of pages of mostly written content. See Motion, at 10. According to Paul Revere, Singer cannot claim he lacks the ability to type and work with computers as part of the non-clinical component of his occupation because of his demonstrated ability to create typewritten content on his blog. Id. Paul Revere cites Myers v. Kodak Health Imaging Sys. LTD Plan , 1999 WL 197136, at *7 (5th Cir. Mar. 22, 1999), which held in part that plaintiff's "ability to craft persuasive written documents" showed her ability to type, which indicated she was not totally disabled. Dr. Singer responds that his travel blog involved only periodic typewritten entries, which is not comparable to performing the strenuous occupational duties with reasonable continuity on a full-time basis. See Response, at 10. Singer cites Lyttle v. United of Omaha Life Ins. Co. , 341 F.Supp.3d 1071, 1084-85 (N.D. Cal. 2018), which held in part that claimant's assisting in the care of family, traveling, remodeling his home, and handling investments did not mean the claimant could perform the demanding functions of a VP of Chemistry with reasonable continuity.
The Court agrees with Paul Revere. The activity at issue here—using a computer to create typewritten content—is largely the same sort of activity that Dr. Singer would do in both his profession and on his travel blog. The obvious distinction is the substance of the typewritten content—one involves narrative entries about travel whereas the other would presumably involve entries related to patient information and hospital protocol. Dr. Singer does not dispute whether he can use a computer or type, but rather whether he can use a computer and type at the frequency and duration required in his profession. The key problem Singer faces on this issue is that he bears the burden to prove his disability. Dr. Singer must fully rebut Paul Revere's argument that his typewritten blog activity casts doubt on his claimed inability to perform computer-related work in his profession. Yet Dr. Singer has not proffered any facts regarding the infrequency or short-duration of his blog posts or infrequency or short-duration of his overall computer use. Paul Revere notes that the blog contains hundreds of pages of mostly written content. See Motion, at 10. Based on the record, the Court is unable to discern the frequency or duration with which Singer created typewritten content on his blog. Thus, Singer is unable to satisfy his burden of proof. Accordingly, the Court finds Dr. Singer's documented blog activity supports Paul Revere's decision.
IV. CONCLUSION
The Court finds that Paul Revere's benefits decision was not "wrong." Dr. Singer failed to meet his burden to prove continued disability and inability to work. First, the Court finds that each of the independent peer reviewer reports supports Paul Revere's benefits decision. Second, the Court finds that Dr. Singer's documented activity level, including his international travel and blog activity, supports Paul Revere's benefits decision. Accordingly, it is
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (DE [32]) is GRANTED . In accordance with Federal Rule of Civil Procedure 58, a separate final judgment will be entered.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 4th day of March 2022.