Opinion
Case No. 1:08-cv-312.
March 5, 2009
ORDER
Before the Court in this ERISA case are the parties' crossmotions for judgment on the administrative record. Plaintiffs Nancy Tholen and Robert Tholen seek a judgment reversing Defendant's determination Mrs. Tholen is not entitled to continued receipt of long-term disability benefits under her employer's plan. (Doc. 17) Defendant, Hartford Life Insurance Company, contends the decision to terminate Tholen's benefits was proper and should be affirmed. (Doc. 18)
FACTUAL BACKGROUND
Nancy Tholen worked for several years as a sales representative for Time Warner Cable. Her job involved door-to-door sales and installation of cable boxes for Time Warner customers. Her prior jobs included bartender, construction flagger, and waitress. She did not complete high school but obtained a GED. Tholen slipped and fell while working for Time Warner sometime in the early 1990's, and she received workers compensation benefits for some period of time. In November 1998, Tholen had surgery for an L5-S1 disc fusion, which the medical records describe as treatment for spinal disc degeneration. (AR 988-989) Tholen applied for disability benefits from the Time Warner long-term disability plan administered by Hartford, and was approved for benefits effective March 1, 1999. The plan has a three-month waiting period, which began on December 1, 1998, shortly after her surgery. (AR 961) Tholen was released to return to work on March 8, 1999, but her complaints of pain and inability to perform her former job duties led her to leave again in May. She re-applied for benefits, and Hartford again approved her application.
Tholen's persistent complaints of post-surgical pain led her to consult with a pain specialist, Dr. Molnar, in the fall of 1999. Dr. Molnar notes in his initial consultation that both an EMG and an MRI were performed and were normal. (AR 946) Molnar referred Tholen for a neurological consultation, and recommended physical therapy. Tholen also received a series of therapeutic nerve block injections, which eventually seemed to help, as she reported some improvement in her symptoms. There is some indication that she was released to return to work in October 2000, but was unsuccessful in doing so because of recurrent pain. (AR 24) Tholen also had unrelated abdominal surgery in mid-2000 which Molnar stated slowed her recovery, and she continued on pain medications.
Hartford approved Tholen for vocational rehabilitation training, to learn typing skills in order to operate a computer. She began this course in September 2000, but stopped attending a few weeks later, stating that she could not sit long enough to get through the class. (AR 721) Dr. Molnar stated at that time that Tholen had "significant radiculopathy that is consistent with a failed laminectomy syndrome with persistent nerve root pain." (AR 711)
Hartford's November 19, 2001 internal medical file review reflects that questions were raised then about Tholen's continued eligibility for benefits. (AR 712-713) The reviewer notes that Molnar had suggested a spinal cord stimulator trial as early as late 2000, but neither he nor Tholen had acted on this suggestion. The reviewer described surveillance that had been ordered by Time Warner's workers compensation carrier, and an independent medical examination performed for that carrier which found Tholen was not disabled. And the reviewer noted the lack of any objective clinical findings to support Tholen's complaints. However, Molnar believed that Tholen should not return to work, and specifically recommended approval of a stimulator implant. That surgery eventually took place on March 5, 2002. On April 12, 2002, Tholen reported to Dr. Molnar that her lower back pain was "almost gone" and that she "has pain when sitting long periods. Has some muscle pain when bending and stretching." (AR 676) Dr. Molnar reported to Tholen's local doctor that, after two months of aquatic rehabilitation therapy, he anticipated that Tholen would be able to return to work. (AR 683) Dr. Molnar's physician statement of May 17, 2002 noted that Tholen had unspecified time limits for standing, walking, sitting and driving, and that she should be restricted from lifting, carrying or pulling more than 20 pounds. He believed these limitations were permanent. (AR 665-666)
On August 5, 2002, Hartford wrote to Molnar, stating that it appeared that Tholen could return to work in a sedentary job. Her limitations would include alternate sitting, standing and walking, with a chair provided for her. She would be restricted from sustained or repetitive lumbar flexing or rotating, and would occasionally lift and carry up to ten pounds. Hartford requested Molnar's response to this recommendation. (AR 648) Molnar responded that Tholen had recently experienced a complication, in that "we are no longer able to capture her stimulation." X-ray evaluation of the stimulator leads was equivocal, and Molnar indicated he was going to reprogram her stimulator; if that failed, surgical intervention would be required. (AR 647)
The Hartford Plan contains two different definitions of disability. One applies during the first 24 months of receipt of benefits, and states that an injury or sickness must prevent the claimant ". . . from performing the essential duties of your occupation, and as a result you are earning less than 20% of your Pre-disability Earnings, unless engaged in a program of Rehabilitative Employment approved by us." After 24 months, the claimant must meet a higher standard: the claimant must be prevented from performing ". . . the essential duties of any occupation for which you are qualified by education, training or experience." (AR 232; emphasis added)
On November 13, 2002, after reviewing Tholen's history and Dr. Molnar's certifications, Hartford approved Tholen for continued receipt of benefits under the more stringent "any occupation" test, subject to continued monitoring of her condition. Hartford also requested Tholen to keep it advised of the progress of her claim for Social Security disability benefits. (AR 643) The plan requires a claimant to apply for Social Security disability benefits, and to pursue all available appeal rights if those benefits are initially denied. (AR 242) Benefits under the Hartford plan are offset by any Social Security disability benefits for which a claimant qualifies. (AR 231, 239)
Tholen's Social Security application was rejected on March 14, 2003. (AR 636) The denial letter states that her medical evidence reflects some pain and discomfort, but that she retained the functional capacity to do light work. When Hartford was informed of this development, it requested updated information from both Tholen and Molnar. Molnar repeated his estimated restrictions on Tholen's work abilities, including sitting less than 1-2 hours, and lifting, pushing or pulling less than five to ten pounds. He also stated that Tholen had mildly improved. (AR 632-633) His June 2003 physical capacities evaluation form reflects similar conclusions. (AR 583-584) Tholen reported that she could not sit, stand, or walk for any length of time, and had severe pain when she overdid her activity level. (AR 627)
By the fall of 2003, Tholen had entered another round of aquatic physical therapy, which she reported was helpful. She also went on a cruise sometime in 2004, but told Molnar that she was in bed for two days due to pain. (AR 570) The stimulator leads had to be surgically adjusted again in December 2004, apparently due to a fall and/or a motor vehicle accident. (AR 536)
On August 16, 2005, the Social Security Administration found that Tholen was entitled to SSDI benefits beginning April 13, 2002. The record contains the notice of award, which Hartford received from a legal services group that apparently prosecuted Tholen's application at Hartford's expense. (AR 513-520) But the record does not contain Tholen's application, a listing of the evidence submitted to SSA, or the basis for SSA's determination to award benefits. Tholen received a lump sum payment of $33,005, which Hartford permitted her to keep when Tholen agreed to repay Hartford by reductions in her future benefit payments. There is no indication in the record that Hartford requested a copy of Tholen's SSA application or the merits decision. And it was not until May 2, 2006 that Hartford requested an updated claimant's statement and a report from Molnar on Tholen's current condition. (AR 500)
When Tholen filed her lawsuit, she owed Hartford approximately $1,800, which is the basis for Hartford's counterclaim against her.
Tholen continued receiving nerve block injections in 2005, and had a CT scan of her lumbar spine on September 26, 2005. The CT report notes the presence of "abnormal soft tissue left lateral to the thecal sac which extends into the left nerve root foramen. I suspect this is post operative scar tissue, although I cannot completely exclude disc protrusion. This is associated with the exit of the left S1 nerve root." (AR 476) Tholen continued to see Molnar about once a month through 2006. In September, Molnar noted that "She is doing quite well except that she has noticed [recently] a problem with abnormal sweating. . . . On physical exam she moves about the room with no overt pain behaviors, a little anxious, but unremarkable. . . . She does have the lumbar radiculopathy on the right, but otherwise has relatively functional strength, although some dysesthesias in that right lumbar L5 distribution." Molnar also noted that her pain appeared to be well controlled with medication, and he was attempting to reduce her dosage. If that did not work, he was considering a trial of a morphine pump. (AR 452) By October 20, Tholen reported that the decreased medications left her in more pain, and Molnar decided to seek approval for the pump. (AR 449) The trial implant was performed on February 8, 2007 (AR 383) and went quite well. (AR 382)
Meanwhile, after receiving responses to its May 2006 request for updated information, Hartford began a review of Tholen's condition for possible permanent disability rating (which Hartford apparently calls "LSS"; see AR 29). As part of this review, her file was referred to an internal investigations unit that ordered surveillance on Tholen. The surveillance was done over separate weeks from October to December 2006, and some observations of Tholen's activities are documented on video. (AR 1262 and 1263, CDs of the video images.)
The written notes of the investigator hired to perform the surveillance state that on the first day (October 16), Tholen was seen riding in a car and going to a farm festival. She walked, bent over to look at pumpkins, picked up a pumpkin with her left arm, and bent and picked up her grandchild (estimated to weigh 30 pounds). She was seen putting the pumpkin in the trunk of the car and closed the trunk, all without apparent difficulty or assistance from family members. Tholen was out of her home for about two hours that day. The next day, she was seen driving alone to do several errands, including shopping at WalMart. She was seen leaving the store carrying several grocery bags, which she placed in her car and then drove home, all without obvious difficulty. On November 2 and November 3, Tholen was not seen leaving her home at all. On December 4, she went to an attorney's office for approximately an hour, then went to several stores. She got in and out of the car at each location, but was not driving herself that day. On December 5, she was not seen outside of her home. (AR 1224-1235)
Based on these observations, which Hartford believed were inconsistent with Tholen's self-reported limitations, Hartford requested a personal interview with Tholen, which took place in her home on January 15, 2007. She had already completed a written statement describing her activities and limitations, and the Hartford interviewer informed her of the surveillance at the beginning of the interview. Tholen did not want to see the tapes and completed a second statement, responding to the interviewer's oral descriptions of her activities depicted on the videos. She explained that those activities were consistent with her previously reported limitations on a "good day." (AR 1090-1100)
On May 25, 2007, Hartford sent the video to Molnar, requesting his opinion on whether Tholen could return to work in either a light or a sedentary position. (AR 144-145) Tholen saw Dr. Molnar on June 1, and his office note states that "Overall, she has been doing much better since we have adjusted the dose of her narcotic upwards." Molnar described her as a little anxious, but he suspected it was related to the surveillance and disability issues. On exam, she had a functional range of motion of about 70%, with some stiffness and awkwardness. Tholen also independently reviewed the surveillance reports and videos. He observed that the periods of observation were quite limited (4 minutes, 17 minutes) and were short-term activities such as shopping or family events. "From my perspective, really all of these observed events are really minor activities that do not require significant stress or strain and particularly do not require sustained repeated activities. However, they do indicate that more activity may be possible and a work evaluation process and a work hardening program may wish to be considered. . . . This is particularly true in light of the fact that we have been able to come down significantly on her systemic narcotics with equal pain control." (AR 343-344)
Hartford then obtained an external file review from Dr. Dibble, a family practitioner, through a peer review company called the Medical Advisory Group. Dibble reviewed Tholen's medical records and then spoke with Molnar. Dibble states that Molnar told him that Tholen's physical capabilities were primarily determined by her self-reported subjective symptomatology. Molnar also told Dibble that Tholen's job limitations should reflect those associated with degenerative disc disease, "including limitation of frequent twisting, bending, stooping, and squatting, and lifting more than 20 pounds occasionally and 10 pounds frequently." (AR 326) These limitations are generally consistent with Molnar's earlier assessments of Tholen's limitations. Based on all of this information, Dibble opined that Tholen was not impaired from returning to work, with the job limitations prescribed by Molnar. (AR 328)
Tholen's file then returned to Hartford's internal reviewer, who noted that the video surveillance was conducted before the morphine pump was implanted, lending additional weight to Dibble's conclusion that Tholen is not disabled. The reviewer then obtained an employability analysis from Hartford's rehabilitation group; that analysis found that Tholen was qualified and able to perform several available jobs within the limitations prescribed by Molnar, including work order sorting clerk, service clerk, solicitor, or school bus monitor. (AR 297-322)
On August 17, 2007, Hartford wrote Tholen to inform her that her benefits were being terminated. (AR 286-293) The letter recites the evidence Hartford relied on, including the 2006 physician's statement from Dr. Molnar, the video surveillance and the personal interview, medical records, the internal and external case reviews, and the employability analysis. Hartford concluded that this evidence supported its conclusion that Tholen was no longer disabled from "any occupation" as required by the terms of the Plan.
Tholen retained counsel to pursue an administrative appeal. (AR 276) Her counsel submitted a written statement on January 22, 2008 (AR 269-271), disputing many of Hartford's conclusions concerning Tholen's condition, along with a November 20, 2007 letter from Molnar. Molnar's letter (AR 267-268) states in part that he felt Tholen had some significant disabilities, "but that her ability level as evidenced by some of the surveillance showed more ability than I was appreciative of, but I still did not feel that it was enough to insure a return to work. However, because of those residual functions I felt that a functional capacity evaluation and a work hardening program could be pursued with the latter focusing on a level of work that was identified in the FCE." Even so, Molnar expressed doubt that Tholen would successfully return to work given her longstanding disability and lack of work involvement since 1999. Molnar stated that while he believed Tholen was disabled, he knew that disability plan definitions differ and that not all "disabilities" are covered by all plans. Molnar suspected that Tholen could perform a sedentary-type job but questioned whether she would be able to work full-time. Molnar also declined the attorney's request to rate Tholen's disability under the AMA guidelines, as he lacked expertise in that area.
Hartford then obtained a second external file review from two independent physicians, Drs. Kalen (an orthopedic surgeon) and Brock (a neurology and pain management specialist). Both agreed that Tholen was capable of returning to work in a sedentary position, and potentially a light duty job. Kalen's notes indicate that she attempted to reach Molnar by telephone to discuss Tholen's case, but was told by his office staff that Molnar "was too busy to talk to me, needed a release form from [Kalen], and wanted the questions for him faxed. Betty said that it was unlikely that he would talk to me as he didn't have the time to spare." (AR 211) Brock's notes indicate he left three messages for Molnar, and was not successful in speaking to him. (AR 213) Kalen believed that the video surveillance "speaks for itself," as Tholen moved in and out of cars, lifted and carried a pumpkin and grocery bags, and lifted her grandchild, all without assistance or obvious signs of discomfort or pain. She displayed no evidence of the limited range of motion noted by Molnar during Tholen's office visits. Based on these additional medical opinions, Hartford rejected Tholen's appeal, particularly noting Molnar's statement that Tholen might well be able to perform a sedentary job, and that he was unable to conclusively opine that Tholen was disabled within the meaning of the Hartford Plan. (AR 206-208)
Tholen and her husband then filed a lawsuit against Hartford in the Ohio state court, alleging a variety of claims. (Doc. 2) Hartford removed the case to this Court (Doc. 1), and the parties subsequently stipulated to the dismissal of all of the state law claims based on ERISA preemption. (Doc. 11, p. 2)
DISCUSSION
The Sixth Circuit articulated the standards by which this Court reviews an ERISA benefit determination in Wilkins v. Baptist Healthcare Systems, Inc., 150 F.3d 609 (6th Cir. 1998). The Court's review is based upon the administrative record and the facts that were before the Plan when it considered the benefit claim. If a benefit plan vests discretion in the plan fiduciary to determine benefit eligibility, the Court's review is pursuant to the "highly deferential arbitrary and capricious standard of review." McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 168 (6th Cir. 2003). That standard applies here, as the Hartford Plan expressly states that "The Hartford has full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy." (AR 244)
However, this review is not intended to be a mere rubber stamp for the administrator's determination. The Court must review the quality and quantity of the evidence in the record to determine if the administrator's decision is sound. A benefits decision resulting from a "deliberate principled reasoning process" that is supported by substantial evidence, will be upheld under the arbitrary and capricious standard. Baker v. United Mine Workers of America Health Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991).
The fact that Hartford is both the plan administrator and pays benefits creates a potential or structural conflict of interest. But this potential does not alter the standard of review. Rather, evidence of an actual financial conflict that affected the administrator's reasoning process is one factor to be weighed in determining if the plan arbitrarily and capriciously denied benefits. Metropolitan Life Ins. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343 (2008).
The Court's consideration of the procedures followed by the plan administrator to determine a claim are questions of law reviewed de novo, regardless of whether the plan vests discretion in the administrator. Kent v. United of Omaha Life Insurance Co., 96 F.3d 803, 806 (6th Cir. 1996).
In her opening brief, Tholen argues that the 2006 video surveillance "proves absolutely nothing" other than that she can walk, bend slightly, and lift light objects, things she never denied she could do. She notes that the investigator verified that she did not leave her house at all on several days he was watching, lending credence to her contention that she has good days and bad. Despite that fact, she argues that Hartford ignored her many "bad" days and relied almost entirely on the "good day" surveillance to conclude she could work. She suggests that Hartford acted arbitrarily in rejecting Molnar's opinion of the video surveillance as simply short-term, minor activities that did not require strenuous repetitive activities that would be required in a full-time job.
Tholen also references surveillance done in the spring of 2001, but incorrectly suggests that Hartford requested that surveillance. The record establishes that it was Time Warner and/or its workers compensation insurer who ordered that surveillance. Hartford was unquestionably aware of it, however, and a copy of the workers compensation IME report that discusses that surveillance was given to Dr. Dibble, Hartford's initial external reviewer. Dibble's report specifically mentions the IME and the surveillance as part of the evidence he relied on to reach his opinion. (AR 324)
Tholen's argument sidesteps the fact that Hartford found her qualified for sedentary work, not for jobs that would require "strenuous repetitive activities" as she suggests. Moreover, the limitations of the sedentary job classifications identified by the Hartford rehabilitation analyst are those that Molnar stated several times that she could likely perform — that is, limits on bending, stooping, stretching, and significant limitations on lifting, pushing, or pulling weight. It is not arbitrary for Hartford to arrive at the conclusion also reached by Tholen's own treating physician.
Tholen contends that she is not "qualified" for the job classifications identified in that review because she only has a GED, and her only additional education or training was on-the-job in her prior manual jobs. (As noted, the Plan defines disability as being prevented from performing any occupation for which a claimant is "qualified" by education, training, or experience; see AR 232.) The job classifications Hartford identified do not require advanced education nor specialized skill training; for example, a work order sorting clerk requires a Grade 7-8 reasoning development level, and Grade 4-6 mathematics ability. Vocational preparation is listed as six months to one year. (AR 309) Tholen's education and previous job experiences do not disqualify her from this or a similar position, as she suggests.
Tholen next contends that an insurer such as Hartford has a duty to act in good faith, and that a surreptitious videotape is not a good faith basis upon which to terminate her benefits. ERISA imposes specific duties upon plan administrators to determine benefit eligibility in accord with the Plan documents, and duties of administrators arise out of trust law concepts. State law principles governing an insurer's duty of good faith and fair dealing toward its insured were not transplanted into ERISA's regulations. In any event, it appears that an insurer would not breach its good-faith duty to its insured simply by conducting "surreptitious surveillance" on a claimant reasonably suspected of embellishing her physical symptoms, and Tholen offers no authority suggesting otherwise.
Tholen next contends that Defendant's decision should be overturned because Hartford initially awarded her benefits, but now has determined that she is "better" and should therefore be able to work. (Doc. 17 at pp. 8-9) The Sixth Circuit has observed, in a similar case, that "`getting better', without more, does not equal `able to work.'" See Elliott v. MetLife, 473 F.3d 613, 620 (6th Cir. 2006). But here, Hartford was not simply concluding that Tholen was "better" — it concluded she was no longer disabled based upon the videos of her activity level combined with her own physician's statements. Tholen attacks Hartford's reliance on three outside physicians who never examined her, but simply conducted file reviews. The Plan permits Hartford to request a personal examination of a claimant at its expense (AR 242), but there is no requirement that Hartford do so before granting or terminating benefits. The Sixth Circuit has stated that there is nothing "inherently objectionable" about a Plan's decision to obtain a file review by a qualified physician.Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005). But when a plan does so, in lieu of exercising its right to request a physical exam, that decision may raise questions about the "thoroughness" of the plan's decision-making. In Calvert, for example, the reviewer's decision was premised on his own adverse opinions of the claimant's credibility, and directly conflicted with objective medical data in the claimant's file (which included CT scans documenting disc protrusion, herniation or bulging that were contacting or compressing nerve roots, as well as spinal stenosis and facet joint osteoarthropathy).
Here, there is an almost complete absence of objective medical data documenting Tholen's constant pain; as early as June 2001, the workers compensation IME physician noted inconsistencies in her self-reported descriptions and the clinical data. And Tholen's own physician expressed surprise upon seeing her activity level on the video surveillance, as it demonstrated (in his words) "more ability than I was appreciative of" (AR 343).
Tholen's final point concerning the external reviewers is her accusation that they "worked for Hartford," casting doubt upon their motivations. The record establishes to the contrary, that all three physicians were retained through outside consulting agencies and are not employees of Hartford or of Time Warner. The fact that the physicians were paid for their services in performing a file review does not create a presumptive conflict of interest; as the district court noted in Morris v. American Electric Power System LTD Plan, 2008 U.S. Dist. LEXIS 82829, at *40-41 (S.D. Ohio, September 30, 2008), "If the mere fact that peer review physicians are paid for their services could render their opinions unworthy of credence, the same could be said of the opinions of a claimant's treating physicians, which could also be biased by the additional factor that a claimant's treating physicians are personally acquainted with the claimant . . .".
In her reply brief, Tholen for the first time contends that Hartford's decision was arbitrary and capricious because Hartford failed to address or distinguish her award of Social Security disability benefits. (Doc. 19) As noted previously, the opinion awarding these benefits and a listing of the evidence submitted to SSA is not in the administrative record. The Court does not condone Tholen's failure to timely raise this issue in her opening brief, and the Court would be well within its discretion to strike that portion of the reply. Instead, the Court will grant Hartford's request to file a sur-reply on this issue, and in the interests of justice will address the question.
The Sixth Circuit has often held that an ERISA administrator's failure to address a Social Security disability award can amount to arbitrary decision-making, when the plan requires the claimant to apply and also benefits financially from the award. See Glenn v. MetLife, 461 F.3d 660, 667-669 (6th Cir. 2006). The Supreme Court affirmed Glenn on the issue of the appropriate standard of review when an administrator is laboring under a potential conflict of interest. But in affirming that decision, the Supreme Court expressly noted with apparent approval the Sixth Circuit's determination that MetLife improperly ignored the Social Security determination in denying benefits. Metro. Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S. Ct. 2343, 2352 (2008). See also, Bennett v. Kemper National Services, Inc., 514 F.3d 547, 553 (6th Cir. 2008), vacating a district court's judgment affirming a plan's finding that the claimant was not disabled, in part because the plan failed to explain why it reached a conclusion contrary to that of the SSA.
Of course, a Social Security determination is not binding on the Plan, as obviously different standards and procedures apply in the Social Security context. In particular, the Social Security Administration must give a treating physician's opinion deference when it is supported by the medical record, a rule that does not apply to ERISA plans. Black Decker Disability Plan v. Nord, 538 U.S. 822 (2003). But what is puzzling here is Hartford's utter silence on the issue. When it was informed that Tholen had successfully obtained an SSA award, it reaped the financial benefits of recouping its overpayment and reducing Tholen's payments going forward, but no one at Hartford expressed any interest in learning why Tholen had been granted benefits. In fact, one of Hartford's reviewers noted in early September 2005 (after learning of the SSA award) that Tholen might be a good candidate for permanent disability, as the reviewer "would not anticipate [Tholen] regaining functionality to the sedentary level considering the medical at hand." (AR 34)
Hartford offers several reasons why the Social Security award is irrelevant. It notes that the award was made in 2005, for benefits beginning in 2002, while Hartford's termination decision was based primarily on evidence developed after those dates. There is no indication that the SSA has reconsidered its decision based on post-2005 evidence. Hartford also cites the different rule for treating physician's opinions in ERISA cases. All of these arguments may have merit — but without knowing what the basis for the SSA award was, Hartford's arguments are largely speculative.
Glenn v. MetLife and Bennett v. Kemper are controlling authorities in this circuit. They clearly hold that in circumstances almost identical to this case, a plan's failure to address a successful SSA award can amount to arbitrary and capricious decision-making. Hartford's failure to consider the SSA award, or to provide it to their external reviewers, is procedurally improper under Glenn and Bennett. This does not mean that Tholen is entitled to an award of benefits. The Sixth Circuit has held that the proper remedy is a remand to the plan "where the problem is with the integrity of the plan's decisionmaking process, rather than that a claimant was denied benefits to which he was clearly entitled." Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 622 (6th Cir. 2006), quoted inCooper v. Life Ins. Co. of N. America, 486 F.3d 157, 171 (6th Cir. 2007). This Court cannot conclude that Tholen is "clearly entitled" to continuing benefits under Hartford's plan, and will remand this matter to the Plan to reconsider her eligibility, including the basis for her SSA award.
CONCLUSION
For all of the foregoing reasons, the Court hereby reverses the decision of the Plan Administrator terminating Plaintiff's disability benefits, and remands this matter to the Plan with instructions to consider Plaintiff's SSA award in determining whether Tholen is disabled within the Plan terms. Defendant's counterclaim to recover the remaining amount of overpayment is dismissed, without prejudice, and subject to Hartford's reservation of its right to seek repayment in the event that Tholen is later found entitled to additional benefits under the Plan.
SO ORDERED.
THIS CASE IS CLOSED.