Opinion
Civil Action No. 03-3417.
July 19, 2004
MEMORANDUM AND ORDER
Presently before the Court are Defendant PNC Bank Corporation and Affiliates Long Term Disability Plan's Motion for Summary Judgment (Docket No. 17), Plaintiff Robert Fiorentino's response and cross-motion for summary judgment (Docket Nos. 20 21), Defendant's reply (Docket No. 23), and Plaintiff's sur-response thereto (Docket No. 25).
I. BACKGROUND
Plaintiff Robert Fiorentino ("Fiorentino" or "Plaintiff") brings this action against Defendant PNC Bank Corporation and Affiliates Long Term Disability Plan ("Plan"), following the denial of his claim for long-term disability benefits.
A. The Plan
The Plan is an ERISA-governed employee welfare benefit plan, covers employees of PNC Bank Corporation ("PNC" or "Administrator"), and provides benefits for eligible employees with a disability. PNC both funds the Plan and acts as plan administrator, but it has delegated authority to UNUM Provident Corporation ("UNUM") to render initial recommendations on benefit claims.
The PNC Financial Services Group, Inc. is successor by name to PNC Bank Corporation. Defendant is an employee benefit plan sponsored by the PNC Financial Services Group, Inc. The name of the Plan has not yet been amended to reflect the change in the name of PNC Bank Corporation.
The Plan defines "total disability" as:
[B]ecause of Injury or Sickness:
a. The Participant cannot perform each of the material duties of his or her regular occupation; and
b. After benefits have been paid for 24 months, the Participant cannot perform each of the material duties of any gainful occupation for which he or she is reasonably fitted by training, education or experience.
PNC-10. The Participant, or employee, has the burden to demonstrate his total disability.
The administrative record, filed by both Plaintiff and Defendant, will be cited as PNC-#.
The Plan grants the Administrator full discretion and authority to determine eligibility for benefits and to interpret the terms of the Plan. The Plan also grants PNC the power to appoint others to assist in the administration of the Plan. PNC and UNUM thus entered into an agreement ("PNC-UNUM Agreement") by which PNC authorized UNUM to make initial claim determinations. Under the PNC-UNUM Agreement, UNUM decided and evaluated all benefit claims, as well as reviewed and resolved the appeal of denied claims. However, PNC retained final authority to approve or disapprove all claims. Additionally, while UNUM was responsible for issuing benefit payment checks, PNC funded the Plan.
B. Fiorentino's Claim
Fiorentino first joined PNC in its Audit Department in 1983. On April 5, 1998, PNC's Audit Department was outsourced and Fiorentino lost his job. Fiorentino was re-hired by PNC on July 10, 1998 as a lead programmer/system consultant. He describes his responsibilities to include meeting with clients, developing programming solutions, and coding software on the computer.
Fiorentino first began noticing pain symptoms in late 1993 and was first treated for fibromyalgia in late 1995. Fibromyalgia is a rheumatological disorder characterized by widespread pain in joints, muscles, tendons, and other soft tissues. See Univ. of Pa. Health System, Fibromyalgia (Jan. 24, 2002), available at http://pennhealth.com/ency/article/000427.htm. Other problems commonly linked with fibromyalgia include "fatigue, morning stiffness, sleep problems, headaches, numbness in hands and feet, depression, and anxiety." Id. Fibromyalgia is diagnosed by its clinical manifestations, requiring at least 3 months of widespread pain, and pain and tenderness in at least 11 of 18 tender-point sites. The tender areas may be on the back of the neck, shoulders, sternum, lower back, hip, shin, elbows, and knees. Joint and muscle examination is normal and there are no laboratory abnormalities associated with the disorder. See Harrison's Principles of Internal Medicine 1706-07 (Kurt J. Isselbacher et al., eds., 13th ed. 1994).
On December 5, 2001, Fiorentino stopped working and applied for long term disability benefits because of fibromyalgia. In his application, Fiorentino stated, "The trigger points are so painful that I am unable to wear a jacket and perform the essential duties of my job. Prolonged sitting at my desk causes considerable aggravation of the fibromyalgia condition." PNC-116. In the accompanying Attending Physician's Statement, Dr. Warren Katz ("Katz") noted, "Tenderpoints in 12 of 18 American Rheumatological [Association] designated sites (criteria for research); trapezius muscle spasms." PNC-120. Dr. Katz also noted that Fiorentino suffered from "severe fibromyalgia with marked pain, muscle spasm and muscle tenderness particularly in [the] neck and shoulders." PNC-123.
On April 1, 2002, case manager Beth Markee ("Markee") contacted Dr. Katz directly, requesting detailed responses to multiple questions and Fiorentino's medical records from November 1, 2001 to the present. Dr. Katz responded, "[Fiorentino] is not capable at this time to type on a computer because of the pain in his neck, shoulders, arms and hands. . . . In my opinion, [he] is not capable at this time of performing the essential functions of his job. . . . I have recommended that he stop his job and work on restoring his health." PNC-86 — PNC-87. Dr. Katz also submitted five treatment notes along with his response. The November 27, 2001 note stated that Fiorentino "feels better today" and has "less spasms." PNC-89. The next treatment note, dated December 14, 2001, stated that Fiorentino was "worse this past week." PNC-91. The next three treatment notes state that Plaintiff had "increased pain [in the] neck," felt "nauseated[,] . . . some heartburn" and "worse at night," and experienced "poor sleep [because of the] pain, most in neck, jaw, and shoulder." PNC-93, PNC-95, PNC-97. Dr. Katz also noted that Fiorentino has been "seeing a psychologist since 1994 to help cope with the pain this disease causes, loss of independence in his work and personal life and loss of social activity." PNC-86.
Markee then requested medical records from Dr. Nancy Wolfe ("Wolfe"), Plaintiff's psychologist. Dr. Wolfe stated that Fiorentino faced "severe limitations" as a result of his fibromyalgia and that his "depressive disorder is secondary to fibromyalgia." PNC-173. In a Functional Capacities Evalutation form, Dr. Wolfe noted that Fiorentino was mildly impaired in the following tasks: (1) understand, carry out, and remember instructions; (2) respond appropriately to supervision; (3) makes independent judgment; and (4) supervise or manage others. PNC-176. Fiorentino was moderately impaired when it came to performing work requiring regular contact with others and work requiring minimal contact with others. He faced moderately severe impairments as to his ability to relate to other people and his ability to "perform under stress . . . in which working speed and sustained attention are make or break aspects of the job." Id. Lastly, he was severely impaired as to (1) daily activities, for example, ability to attend meetings, socialize with others, or attend to personal needs; (2) constriction of interests; and (3) performing repetitive tasks.
Fiorentino was initially reluctant to release these records because he believed that the psychological records had no bearing on his physical disability claim. However, he then acquiesced to the request.
"Mild" indicates "suspected impairment of slight importance which does not affect functionality ability." "Moderate" indicates "impairment affects but does not preclude ability to function." "Moderately severe" indicates "impairment significantly affects ability to function." "Severe" indicates "extreme impairment of ability to function." PNC-176.
On May 16, 2002, Gigi Dotson ("Dotson"), UNUM's clinical consultant and registered nurse ("RN"), reviewed Fiorentino's file. Dotson reported Fiorentino's diagnosis as "fibromyalgia with secondary depression," but Fiorentino applied for disability benefits solely based on his fibromyalgia. Dotson questioned the medical records provided by Dr. Katz because they did "not include any diagnostic testing" but only documented self-reported pain. PNC-157. Dotson concluded that while the fibromyalgia diagnosis was supported, the restrictions and limitations as a result of the disease were not. Dotson also viewed Dr. Wolfe's submissions with skepticism, stating that Dr. Wolfe's letter "does not document specific symptoms of depression [but] rather documents [Fiorentino's] feelings about going on disability and how to tell his employer." Id. Dotson concluded that "[t]he letter does not support an impairment from a psychological standpoint." Id. Dotson then requested a "medical review and a psych review" of Plaintiff's file. PNC-148.
On May 22, 2002, Dr. E.C. Curtis, an UNUM medical consultant specializing in General Medicine and board-certified in Occupational Medicine, reviewed Plaintiff's file to assess whether the information supported the "severe limitations from fibromyalgia (in effect total occupational incapacitation)." PNC-149. Dr. Curtis concluded:
In a strictly literalist sense, the diagnosis of fibromyalgia is supported. Dr. Katz reports 12 of 18 positive tender points in an individual who voices widespread pain complaints and who says he is not sleeping well. At the same time, appropriateness of the label remains open to question in view of the fact that the sleep problems are more readily explainable by the psychiatric situation. Also the documented pain complaints have focused almost completely on the neck and shoulders and upper extremities rather than being in a four quadrant truncal distribution. Besides that, tender points are at best semiquantitative, and seem to be of doubtful validity in a patient who says he hurts everywhere (and likely therefore to voice complaints of tenderness almost anywhere he is touched).
PNC-151 — PNC-152. Dr. Curtis expressed skepticism that Fiorentino was completely incapacitated by his physical pain and suggested that Fiorentino's incapacitation was primarily the result of "psychiatric and psychosocial factors." PNC-151.
On June 3, 2002, Dr. Les Kertay, an UNUM medical consultant and psychologist, conducted a psychiatric review of Plaintiff's claim. Dr. Kertay opined that "a diagnosis of an Adjustment Disorder or other similar reactive psychiatric condition would be more appropriate." PNC-170. He also interpreted Fiorentino's current psychotherapy as "consistent with a moderately severe condition" but concluded that the treatment was "in keeping with what would be expected in a mild to moderate and/or stable condition." Id. In sum, Dr. Kertay believed that the available information did not support "restrictions, limitations, or a work capacity impairment based on a psychiatric condition, alone or as a contributor to a general medical condition." Id.
On June 6, 2002, Markee contacted Fiorentino and advised him that UNUM would be denying his claim. By letter dated June 19, 2002, UNUM stated that "benefits are not payable due to lack of sufficient medical evidence." PNC-137. UNUM acknowledged that the diagnosis of fibromyalgia was reasonably supported. However, UNUM believed that while Fiorentino suffered some physical impairment, the evidence did not show that his fibromyalgia and/or depression were severe enough to prevent him from performing the material duties of his occupation. UNUM also believed that many of Fiorentino's problems were caused by psychological factors. The letter also contained general information on the appeals process.
Plaintiff appealed UNUM's denial of his claim on July 8, 2002. Fiorentino included a letter refuting each of the grounds cited by UNUM as a basis for its denial and a copy of Dr. Katz' curriculum vitae. He attempted to obtain a copy of his personnel records from PNC to support his claim that the fibromyalgia affected his ability to work but PNC refused to release the records without a subpoena. Subsequently, on August 9, 2002, Fiorentino notified UNUM that he had been awarded Social Security benefits. On August 19, 2002, Fiorentino submitted the results of the Functional Capacity Evaluation ("FCE") he underwent on July 16, 2002 at his attorney's request and, in lieu of his personnel records, a statement by a former co-worker detailing his condition at work. The FCE's results indicated that "Fiorentino is currently unable to return to work at any capacity. He is not capable of lifting anything at all. He also is not capable of carrying anything at all." PNC-346. Fiorentino also exhibited a 40% cognitive impairment. In addition, according to Plaintiff's former co-worker, from November 1997 to October 2001, Fiorentino was "increasingly absent from work" and "his pain and discomfort was obvious." PNC-341.
Fiorentino states that because there was no litigation pending at this time, he was unable to obtain a subpoena to comply with PNC's request. He then asked UNUM to obtain his personnel file but the record indicates that UNUM did not make any attempt to do so.
Plaintiff's appeal was coordinated by Kari Luedtke ("Luedtke"). RN Brenda Nunn ("Nunn"), a clinical consultant, conducted a psychiatric and medical review of Fiorentino's file on July 30, 2002 and July 31, 2002. In her psychiatric review, Nunn noted that the limited clinical data was inconsistent and concluded that there was no support that Fiorentino lacked functional capacity from a psychiatric standpoint. In her medical review, Nunn also noted that the clinical data was inconsistent. Nunn observed that Fiorentino's pain appeared to be primarily in his neck, shoulders, and arms and not over his entire body as with most fibromyalgia sufferers. Further, Nunn noted that there was no information on file "in support of any time away from work which [Fiorentino] may have had to `incur the wrath of his employer and impair his work performance generally.'" PNC-82. UNUM did not have a copy of Fiorentino's personnel file. Nunn then recommended that a board-certified rheumatologist review Plaintiff's file. In both reviews, Nunn mistakenly noted that the clinical data consisted of records from "1/27/01 to 4/11/02" instead of "11/27/01 to 4/11/02." PNC-73, PNC-80.
On August 19, 2002, Dr. Paul Martin, UNUM's rheumatologist, reviewed Plaintiff's file. Dr. Martin also contacted Dr. Katz to discuss Fiorentino's condition. During the conversation, both doctors acknowledged that, while desirable, it would be impractical to observe patients in their work environment. Thus, Dr. Katz' conclusion on Fiorentino's capacity to work at PNC depended in large part on Fiorentino's own reports. Dr. Martin concluded that Fiorentino "satisfies the criteria for fibromyalgia" and also exhibited "irritable bowel syndrome, irritable bladder syndrome, migraine headaches, and TMJ syndrome." PNC-362. However, Dr. Martin viewed Plaintiff's "chronic pain (fibromyalgia) simply as a non-disabling condition, one among his many other unexplained somatic symptoms and symptoms of underlying concomitant psychological distress, mood disturbance, anxiety and depression." Id. He recommended an FCE and neuro-psyche testing to help determine whether Fiorentino's "psychological distress [was] severe enough to cause impairment." PNC-363. He also stated that Dr. Katz agreed to provide Plaintiff's records from 1995 to the present.
Plaintiff contends that Dr. Martin is not board-certified, presumably by the American Board of Rheumatology. Dr. Martin's curriculum vitae indicates that he is a member of the American Rheumatism Association and the Massachusetts Rheumatism Association. See PNC286.
Dr. Martin's medical conclusion suggests the fact that Dr. Katz did not observe firsthand Plaintiff at work somehow makes the statements less than reliable. Dr. Martin's report fails to mention that both doctors had agreed that observing their patients firsthand would be impractical. However, Dr. Martin did acknowledge this in his August 27, 2002 letter to Dr. Katz.
That same day, Dr. Peter Brown, UNUM's clinical consultant, conducted a psychiatric review of Fiorentino's file. Dr. Brown noted that there was no information from PNC regarding Plaintiff's impaired job function and that there appeared to be missing documents related to Plaintiff's MRI. He also noted that despite treatment with a variety of medication, chiropractic treatment and acupuncture, Fiorentino's symptoms appear to have steadily worsened. Dr. Brown also read Drs. Curtis and Kertay's evaluations to suggest that Fiorentino was "totally disabled by virtue of his symptoms of fibromyalgia." PNC-366. Dr. Brown ultimately concluded that the available information did not explain the "severity or chronicity" of Fiorentino's symptoms from a psychiatric perspective. PNC-367.
Thereafter, a struggle arose between UNUM, Dr. Katz, and Plaintiff's then-attorney, David Bross ("Bross"), regarding the production of medical records from 1995 forward and Plaintiff's submission to a second FCE and a neuro-psyche exam. According to UNUM, between August 26, 2002 and February 19, 2003, it made ten requests to Dr. Katz' office and five requests to Bross to obtain Fiorentino's medical records dating back to 1995. UNUM states that, at Bross's direction, it engaged a copying service company in an unsuccessful attempt to obtain the additional records. In its later requests, UNUM warned that the failure to provide the information may negatively affect Fiorentino's claim.
In contrast, Fiorentino states that UNUM never explained why he needed to undergo another FCE when he had one in July and questioned why UNUM did not previously request the additional medical records. Fiorentino also notes that he did not oppose the request for additional requests and that he would comply with the neuro-psyche evaluation. Moreover, Bross had repeated his request for UNUM to obtain Fiorentino's employment file. On December 18, 2002, Luedtke responded by stating that UNUM did not have a copy of the file and that Fiorentino needed to obtain a copy himself. Bross replied and stressed that the employment records were important to a fair adjudication of Fiorentino's claim. Subsequently, on February 20, 2002, Bross stated that he had tried to get the medical records from Dr. Katz but Dr. Katz was out of the office for most of the previous two months and would be out of the office until the following week.
By letter dated February 27, 2003, UNUM affirmed its previous decision to deny Fiorentino long-term disability benefits. UNUM stated that it had been unable to obtain a copy of Fiorentino's additional medical records despite requests since August 2002, unable to schedule an FCE because Dr. Katz did not provide UNUM with a prescription, and also unable to schedule a neuro-psyche evaluation because it had no medical records. The next day, on February 28, 2003, Bross forwarded to UNUM all of Dr. Katz' records which had served as the basis for the Social Security Administration's ("SSA") approval of disability benefits for Fiorentino. On April 24, 2002, Bross was replaced by Howard Goldstein ("Goldstein") as Plaintiff's attorney. Goldstein obtained the records from Dr. Katz' office and forwarded them to UNUM. UNUM returned the records on May 1, 2003. This litigation ensued on June 3, 2003.
II. LEGAL STANDARD
Summary judgment is appropriate "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. Id. at 324. The substantive law determines which facts are material.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of material fact. Id.
When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).
III. DISCUSSION
A. ERISA Standard of Review
The first step in evaluating a benefits claim under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., is to determine the appropriate standard of review. A denial of ERISA plan benefits is reviewed under a de novo standard unless the plan administrator has discretion to determine beneficiary eligibility or to construe the terms of the plan. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Discretionary denials are reviewed under an arbitrary and capricious standard. Id. Under this standard, an administrator's decision must be affirmed unless it was "without reason, unsupported by substantial evidence or erroneous as a matter of law." Abnathya v. Hoffmann-LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (quotations and citations omitted). "This scope of review is narrow, and the court is not free to substitute its own judgment for that of the [administrator] in determining eligibility for plan benefits."Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997).
A heightened arbitrary and capricious standard applies when the plan administrator's decision was potentially affected by a conflict of interest. Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 378-79 (3d Cir. 2000). Where such a conflict of interest exists, the court reviews the decision using a "sliding scale method, intensifying the degree of scrutiny to match the degree of conflict." Id. at 379. The court may examine evidence outside of the administrative record to determine whether there is a conflict of interest. See id. at 395; Doyle v. Nationwide Ins. Cos. Affiliates Employee Health Care, 240 F. Supp. 2d 328, 336 (E.D. Pa. 2003).
The Third Circuit Court of Appeals has previously noted that the "potential for a conflict arises" in cases where the employer both funds and administers the welfare benefits plan. Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc. Employee Health and Welfare Plan, 298 F.3d 191, 197 (3d Cir. 2003). However this arrangement, does not, in itself, "typically constitute the kind of conflict of interest mentioned in Firestone. . . ." Pinto, 214 F.3d at 383; see also Abnathya, 2 F.3d at 45 n. 5 ("Although some degree of conflict inevitably exists where an employer acts as the administrator of its own employee benefits plan, the conflict here is not significant enough to require special attention or a more stringent standard of review underFirestone.").
A conflict exists where the "impartiality of the administrator is called into question." Goldstein v. Johnson Johnson, 251 F.3d 433, 435 (3d Cir. 2001). The potential for prejudice can arise because of the structure of the plan itself or because the beneficiary has presented specific evidence of bias or bad faith in his particular case. Id. at 435-36; see Doyle, 240 F. Supp. 2d at 336. In Nazay, the Third Circuit concluded that where an employer develops and administers an employee benefit plan, the employer has an incentive "to avoid the loss of morale and higher wage demands that could result from denials of benefits."Smathers, 298 F.3d at 197 (quoting Nazay v. Miller, 949 F.2d 1323, 1335 (3d Cir. 1991)). On the other hand, a conflict may exist where the employer-administrator funds the plan on a claim-by-claim basis and the funds are taken from unsegregated general corporate funds. See Kotrosits v. GATX Corp. Non-Contributory Pension Plan, 970 F.2d 1165, 1173 (3d Cir. 1992). This structure creates a potential conflict because the employer incurs a direct expense when it has to pay benefits and thus gives the employer an incentive to deny borderline claims.See McElroy v. SmithKline Beecham Health Welfare Benefits Trust Plan, No. 01-5734, 2002 WL 18570453, at *5 (E.D. Pa. July 31, 2002) (conflict exists where employer alone funds the plan and "benefits paid to the plan beneficiaries are derived not from a separate fund but from the general corporate assets"). In contrast, no conflict exists where the "employer makes fixed contributions to the plan's fund, which is held by a separate trustee, and the plan provides that the monies in the fund may only be used for the exclusive benefit of plan participants or plan expenses." Doyle, 240 F. Supp. 2d at 337; see Abnathya, 2 F.3d at 45 n. 5. See, e.g., Courson v. Bert Bell NFL Player Ret. Plan, 75 F. Supp. 2d 424, 431 (W.D. Pa. 1999) (no conflict exists where employer's contributions to plan are fixed, contributions are held by a separate trustee, and funds are exclusively dedicated to benefit participants or to pay plan expenses);Bunnion v. Consol. Rail Corp., 108 F. Supp. 2d 403, 424 (E.D. Pa. 1999) (no conflict exists because plan did not entitle employer to any residual portion of the trust and residual surplus was allocated to individuals' accounts).
In this case, the parties do not dispute that PNC had discretionary authority to determine whether Fiorentino qualified for benefits, and therefore the arbitrary and capricious standard is applicable. The parties disagree on whether this standard is subject to the heightened arbitrary and capricious standard.
Fiorentino argues that the Court should apply a heightened arbitrary and capricious standard of review because PNC both administered and funded the Plan. In support, Fiorentino notes that, although PNC appointed UNUM to administer the claims process, PNC retained final authority to approve the disposition and payment of a claim. See PNC-54 (PNC-UNUM Agreement, § 4(4) ("Employer shall retain authority to make the final determination on whether or not to pay claims that UNUM recommends for payment.")). As the reasoning goes, PNC stood to lose money if UNUM determined that Fiorentino was entitled to disability benefits. Additionally, PNC funds the Plan through a separate trust in which PNC serves as the trustee. See Decl. of Paul J. Dolan (Docket No. 23). Unlike situations where the employer-administrator funds its benefits plan through a separate trust held by a separate trustee, here, PNC serves both as administrator and trustee. It is unclear to the Court whether PNC makes fixed contributions to this trust or contributes funds on a claim-by-claim basis. It is also unclear to the Court whether PNC holds a residual interest in the trust. Under these circumstances, the Court believes that a heightened arbitrary and capricious standard of review is appropriate.
The inquiry does not end here, however. The Court must now determine the degree of scrutiny under the heightened standard. Under the sliding scale method articulated in Pinto, a court must intensify "the degree of scrutiny to match the degree of conflict." Pinto, 214 F.3d at 379. The Third Circuit has suggested that the presence of certain procedural anomalies could cause a court to examine the Plan's decision at the less deferential end of the arbitrary and capricious range. See id. at 394. In Pinto, several procedural anomalies placed the case at the least deferential end of the sliding scale. First, the administrator reversed an earlier decision allowing Pinto's benefits without any new medical evidence to support the reversal. Id. at 393-94. Second, the administrator selectively relied upon self-serving evidence supporting a denial of benefits but rejected contrary evidence supporting a continuation of Pinto's benefits. Id. Finally, the administrator ignored its own staff's recommendation that benefits be continued. Id.
In this case, Fiorentino has not pointed to procedural anomalies rising to the level of Pinto. The Administrator did not reverse an earlier decision nor ignore its own staff recommendations. Fiorentino suggests that PNC, through UNUM, relied on unqualified medical experts to review Fiorentino's file and failed to thoroughly credit the opinion of his treating rheumatologist, Dr. Katz. Fiorentino also contends that the Administrator selectively relied on evidence that supported a denial of benefits and rejected evidence that supported the granting of benefits. Additionally, as noted previously, PNC both funds and administers the Plan. As such, the Court finds that the conflict here, while not extraordinary, warrants a slightly heightened standard of review.
B. Review of Administrator's Decision
The Court now examines the Plan's decision to deny Fiorentino's claim for benefits using a slightly heightened arbitrary and capricious standard of review. The Court must defer to the administrator's decision unless the decision is "clearly not supported by the evidence in the record or the administrator has failed to comply with the procedures required by the plan."Orvosh v. Program of Group Ins. for Salaried Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000) (internal quotations omitted). In conducting its review, the Court looks to the "record as a whole," which "consists of that evidence that was before the administrator when he made the decision being reviewed."Mitchell, 113 F.3d at 440. Accordingly, the administrative record in this case will consist of all information that Fiorentino submitted to UNUM before February 27, 2003.
Applying the slightly heightened standard of review, the Court concludes that the Plan's decision to deny Fiorentino benefits was arbitrary and capricious. Specifically, the Court finds that the Plan treated the medical evidence inconsistently and selectively. See Petroff v. Verizon North, Inc. Long-Term Disability Plan, No. 02-318, 2004 WL 1047896, at *14 (W.D. Pa. May 4, 2004) (stating that a selective review of medical evidence demonstrates an arbitrary and capricious denial).
First, in Plaintiff's initial application for benefits, while Dotson concluded that the diagnosis of fibromyalgia was supported by information in the file, Dotson also refers to the lack of diagnostic testing or medical data. Dotson implies that because Dr. Katz relied on Fiorentino's report of pain, that evidence is less reliable. However, there is no test that can be performed to confirm the diagnosis of fibromyalgia since the disease manifests itself through clinical symptoms. See Dorsey v. Provident Life and Accident Ins. Co., 167 F. Supp. 2d 846, 855 (E.D. Pa. 2001) (citation omitted); see also Klein v. Betzdearborn Inc. Long-Term Disability Plan, No. 01-4600, 2002 WL 32348334, at *1 (E.D. Pa. July 9, 2002) ("There is no way a physician can diagnose fibromyalgia without relying on a patient's self-reported statements that he or she is feeling pain or tenderness during the examination."). In the absence of a laboratory test, fibromyalgia is diagnosed through the use of "the pressure point" or "tenderpoint" test. See Scott v. Hartford Life Accident Ins. Co., No. 03-3696, 2004 WL 1090994, at *5 (E.D. Pa. May 13, 2004). Dotson concludes that Fiorentino's restrictions and limitations do not appear to be supported but neglects to address Dr. Katz' treatment notes indicating that Fiorentino's condition had worsened since his last day of work.
Dr. Kertay's psychiatric review of Plaintiff's file is also inconsistent. Dr. Kertay acknowledges that Dr. Wolfe found Fiorentino faced extreme impairment in his daily activities and his ability to perform repetitive tasks and that Fiorentino's ability to relate to others and to perform tasks under stress were significantly impaired. Nonetheless, Dr. Kertay concluded there was insufficient information to support that Fiorentino could no longer perform his job as a lead programmer/system consultant. Further, Drs. Kertay and Curtis fail to explain their disagreement with Dotson's conclusion that Fiorentino was not impaired from a psychological perspective and their conclusion that Fiorentino's limitations were the result of psychological factors.
Second, UNUM's review of Fiorentino's appeal also reveals a selective use of information. Dr. Martin's report of his conversation with Dr. Katz unfairly suggests that, because Dr. Katz relied on Fiorentino's statements about his work limitations, Dr. Katz' conclusions are unreliable. Dr. Martin neglects to mention that, in the same conversation, he and Dr. Katz had agreed that "the need to observe our patients to verify their claims is devoutly to be wished, but impractical due to time consumption." PNC-364. Dr. Martin was also under the mistaken impression that there was an 11-month gap in the medical records furnished by Dr. Katz. The seeming gap was the result of a typographical error which noted that the clinical data consisted of records from "1/27/01" instead of "11/27/01." Dr. Brown's analysis of Fiorentino's condition does not explain why he disregarded his own finding that Fiorentino seemed to be worse off nor his finding that Fiorentino was totally disabled. UNUM's failure to consider Fiorentino's July FCE also reveals an inconsistent use of information. While UNUM does not have to give the July FCE controlling weight, UNUM appears not to have considered it at all. UNUM instead insisted on conducting a second FCE.
Additionally, UNUM seemingly fails to weigh the SSA's decision to grant disability benefits to Fiorentino. The Court recognizes that an administrator is not bound by the SSA's decision.Dorsey, 167 F. Supp. 2d at 856 n. 11. However, the SSA's decision may be considered as a factor in determining whether the Administrator's decision was arbitrary and capricious. See id. (citingWilkerson v. Reliance Standard Life Ins. Co., No. 99-4799, 2001 WL 484126, at *1 (E.D. Pa. Mar. 6, 2001)). As noted, here, there is no evidence that UNUM considered the SSA's decision in its own determination. Lastly, UNUM had remarked on the absence of any information supporting Fiorentino's time away from work more than once. Because PNC refused to release Fiorentino's personnel file without a subpoena, Fiorentino submitted a statement from a former co-worker regarding his time at work which UNUM did not consider. When Fiorentino asked for UNUM's assistance in obtaining his employment file, UNUM replied that it was Fiorentino's responsibility to do so. While there is no affirmative duty to gather information, see Pinto, 214 F.3d at 398 n. 8, here UNUM made no effort and yet partly relied on the absence of such information to deny Fiorentino's claim.
Third, ERISA requires that a plan "provide adequate notice in writing to any participant . . . whose claim for benefits . . . has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant." 29 U.S.C. § 1133(1). The Department of Labor regulations implementing § 1133 require the notice of denial to provide the claimant with, among other things, the "specific reason or reasons for the adverse determination" and "[a] description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary." 29 C.F.R. § 2560.503-1(g) (i), (iii). Violation of ERISA and its implementing regulations is a significant error on a question of law and may "so taint the denial of benefits that it warrants a finding that the plan administrator's decision was arbitrary and capricious." Scott, 2004 WL 1090994, at *4. Here, UNUM's June 19, 2002 letter does not satisfy ERISA's notice requirements. The letter simply states that Fiorentino may send "additional information to support [his] request for disability benefits" with no description of any additional material that would help Fiorentino perfect his claim.
Finally, PNC accepted UNUM's decision without objections.
IV. CONCLUSION
For these reasons, the Court finds that the denial of Fiorentino's disability benefits was not supported by reason and was arbitrary and capricious. Thus, Defendant's motion for summary judgment is denied. Because of the inconsistencies in the record, the Court is not, at this point, able to determine whether Plaintiff qualifies for long-term disability benefits. Thus, Plaintiff's cross-motion for summary judgment is also denied.
An appropriate Order follows.