Summary
holding that to receive regular treatment, a claimant must "consult with a physician more than sporadically"
Summary of this case from Hoover v. Metropolitan Life Insurance CompanyOpinion
00 CIV. 8198 (DLC)
December 27, 2002
Ronald S. Koppelman, Blatt Koppelman, P.C., Nanuet, NY, for Plaintiff.
Brian Greben, The Guardian Life Insurance Co. of America, New York, NY, for Defendant.
OPINION AND ORDER
Plaintiff Henrik Rosenberg ("Rosenberg"), a former employee of defendant The Guardian Life Insurance Company of America ("Guardian"), brought this action against Guardian to challenge its denial of his long term disability benefits under a Guardian employee welfare benefits plan, which is governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. Guardian has moved for summary judgment. For the reasons stated, Guardian's motion is granted.
Background
The following facts are undisputed, unless otherwise noted. In April 1983, while working as a field representative for Guardian, Rosenberg enrolled in a group life, health, and disability insurance plan that Guardian offered to its employees. The disability portion of the plan, designated as group policy number G-8-F-FC (the "Plan"), was revised in 1994.
The parties do not dispute that the terms of the revised plan apply to Rosenberg.
The Plan The Plan provides disability benefits to a plan member in the event that the member becomes "totally disabled." The Plan defines "total disability" as follows:
"Total disability" means, from the start of continuous disability through the first 24 months that we pay benefits, an employee is totally unable to perform all of the material duties of his or her regular occupation due to sickness or injury. When benefits have been paid for 24 consecutive months, the meaning changes. After benefits have been paid for 24 consecutive months, "total disability" means the employee is totally unable to perform the material duties of any suitable occupation. When we determine if an occupation is suitable, we look at the employee's education, training and experience. We also look at his or her prior occupation and earnings. This plan covers total disability that starts while the employee is insured by this plan.
The Plan further provides the following exclusion: "We don't pay benefits for any period during which the employee is not under the care of a doctor." The Plan reiterates and qualifies this exclusion: to receive benefits, an "employee must be under a doctor's regular care for the cause of his or her total disability" unless the disability is due to blindness or the permanent loss of two hands or feet. The Plan provides that "The Guardian is the Claims Fiduciary with discretionary authority to determine eligibility for benefits and to construe the terms of the plan with respect to claims." With respect to the commencement of litigation, the Plan provides that "[t]he employee can't bring a legal action against this plan until 60 days from the date he or she files proof of loss. And he or she can't bring legal action against this plan after three years from the date he or she files proof of loss."
In November 1988, Rosenberg applied for disability benefits pursuant to the Plan. He stated that he was suffering from an inability to concentrate and gastrointestinal problems.
Rosenberg received disability benefits as of September 1988.
In July 1991, Rosenberg was seen by Dr. John Kandera ("Kandera") of the Monsignor Patrick C. Frawley Mental Health Clinic at Good Samaritan Hospital (the "Frawley Clinic"). In a psychiatric evaluation dated July 9, Kandera reported that Rosenberg was last seen in July 1990, after which his chart was closed because he failed to keep his next appointment. Kandera diagnosed Rosenberg with "major depression, single episode severe without psychotic features," and recommended that Rosenberg "can benefit from both psycho-therapy and chemo-therapy." Kandera noted, however, that Rosenberg "attended clinic sporadically, he was not compliant with medication[,] and did not attend therapy sessions." Kandera further noted that "I am unable to give adequate anti-depressant trials since patient did not keep clinic appointments." Rosenberg failed to appear at his next appointment scheduled for July 30, but did appear for an August 20 appointment. Thereafter, Rosenberg did not appear at the Frawley Clinic until April 1997.
Beginning in March 1992, Rosenberg visited Dr. Glenn Schwarcz ("Schwarcz"), a board certified psychiatrist. In December 1992, Guardian requested that Schwarcz provide it with information regarding Rosenberg's disability. By letter dated March 3, 1993, Schwarcz responded that Rosenberg was suffering from "[p]anic disorder completed by irritable bowel syndrome, with severe diarrhea at time of panic. Also, underlying paranoid personality disorder." Schwarcz further stated that "I have seen [Rosenberg] on three occasions from 3/92 to the present. He has been to numerous psychiatrists and internists before me." With respect to medications being taken by Rosenberg, Schwarcz stated:
Prognosis is poor as he has been on full courses of the following medications with no response. Pamelor, Xanax, Prozac, Wellbutrin, Librax, Bentyl, and Tagament with no response. Complicating this is his families['] eccentric views that medications are poisonous and one should only use natural treatments. He is[,] therefore, very reluctant to try new treatments.
Schwarcz stated that Rosenberg is "totally disabled," that he "cannot get along with people and deal with normal interpersonal stress," and that Guardian should "[e]xpect permanent disability."
Also beginning in 1992, Rosenberg was under the care of E.F. Landi ("Landi"), a chiropractor. Rosenberg states, and Guardian does not dispute, that he visited Landi approximately five to ten times per month for the period from 1992 to 1997.
On November 19, 1996, Rosenberg submitted a Continued Proof of Loss-Claim Form ("CPL") and an Attending Physician's Statement of Continued Disability ("APS"). On the CPL, in response to the question "[i]f still disabled, what is nature of sickness or injury now causing disability?", Rosenberg wrote "depression."
He further stated that the condition had "worsened" since the last report. Under the caption "Describe how your time is occupied and outline your current activities," Rosenberg wrote "visit synagogue — able to drive short distances." The CPL further requested that the claimant "List all Physicians consulted." Rosenberg listed Schwarcz.
Schwarcz completed the APS. Schwarcz stated that based on his examination of Rosenberg on November 17, 1996, Rosenberg presented "mild" symptoms of "anxiety, panic with people."
Schwarcz further stated that the basis of these symptoms was "biological." In response to the APS form's request that he "provide the objective findings to corroborate these complaints," Schwarcz wrote: "I have not seen any of these myself. By report of patient and his wife." In response to the form's inquiry about the frequency of Rosenberg's treatment, Schwarcz wrote "yearly or so." Although he reported that Rosenberg was still totally disabled, and that he did not expect a marked changed in the future, he also indicated in response to questions about the level of physical impairment, that Rosenberg was capable of sedentary, such as clerical or administrative, activity, and did not indicate that he had a severe limitation that would render him incapable of sedentary activity. The report included the observation that Rosenberg had taken all possible medications to "no avail."
On November 19, Rosenberg was visited by Zenia Korduba ("Korduba"), an investigator for Richard M. Tahl Associates. Korduba filed a claim report dated November 19 concerning the visit. In the report, Korduba stated that when Rosenberg was asked what prevents him from working, he responded "depression."
Korduba further stated:
I asked what medical attention he was getting, and he stated that he goes for consultations with Dr. Schwarcz once every two months. He is not taking any medication. He denies any hospitalizations. He said he had previously been under the care of a Dr. Kandera at Good Samaritan Hospital, Frawley Psychiatric Clinic. He has not seen Dr. Kandera for over two years.
In a claim report dated November 25, Korduba stated that according to Schwarcz's records of Rosenberg's visits, copies of which Korduba attached, Rosenberg had been to visit Schwarcz three times in 1992, once in 1993, once in 1994, and twice in 1996. Rosenberg states that between 1992 and 1997, he visited or "contacted" Schwarcz approximately eleven times.
1997: Termination Notice By letter dated February 18, 1997, Guardian informed Rosenberg that his disability benefits were being terminated.
The February 18 letter stated, in pertinent part:
Benefits for total disability are provided if you are completely unable to engage in any reasonably gainful occupation for which you may be fitted by education, training or experience, having due regard for the nature of your occupation at the time you became disabled and for your prior average earnings. For total disability benefits to be payable, you must be suffering from a condition of sufficient severity to cause you to be unable to engage in any suitable occupation.
It is inconsistent to state that you are suffering from a condition sever enough to cause you to be disabled, yet the condition is not severe enough to cause you to seek treatment on a regular basis. We cannot consider six visits to a physician over a four year period (for various complaints) sufficient to meet the policy's requirement for medical care. (Emphasis supplied.)
The February 18 letter further stated:
You have the right to request a review of your claim and the decision stated in this letter by making application to The Guardian. Your request for review, together with any additional information should be submitted to us within sixty days of receipt of this letter. The Guardian will notify you of its review decision ordinarily within sixty days after receipt of you request for a review.
In April 1997, Rosenberg submitted to Guardian a new CPL form and an APS prepared by Dr. Lawrence Levitt ("Levitt") of the Frawley Clinic. Rosenberg also submitted additional material prepared by Levitt. In a psychiatric evaluation dated April 8, Levitt wrote:
[T]his is a re-admission[.] [T]he patient had formerly been seen at this clinic under the care of Dr[.] John Kandera, in 1991. At that time he was suffering from what appeared to be a major depression with psychotic disorder. He was treated with Pamelor and it was reported that the symptoms did not improve too much. He was placed on total disability at that time. Following Dr[.] Kandera's leaving the clinic, the patient went to see Dr[.] Schwarcz in the community, who continued treating him with various medications.
Levitt further wrote that Rosenberg reported feeling anxious and had gastrointestinal problems "when any situation arises which increases his level of stress. Since the notification of the loss of disability payments, his symptoms have becom[e] increasingly worse and show up in his feelings extensively dealing with his wife and 11 children."
By letter dated April 25, Guardian informed Rosenberg that it was "maintain[ing] its position that no additional benefits are payable under this claim." Guardian explained:
We have reviewed the claim form and the medical records received from Dr. Levitt. The records revealed that other than the visit on April 8, 1997, you have not been treated by this doctor since August 20, 1991. In fact, records for 1991 revealed that the physician indicated that `depression is treatable,' that you attended the clinic sporadically, that you were not compliant with medication and did not attend therapy session.
On May 6, 1997, Rosenberg submitted an APS completed by Landi. Landi reported that Rosenberg presented with "[n]ervousness, mid-[t]horacic pain, pain in stomach, [l]ow [b]ack [p]ain," and that Rosenberg's stomach pain was "moderate-severe . . . upon pressure in abdomen." Landi further stated that Rosenberg "has been under my care for several years due to being highly excitable and nervous [sic] always affecting his stomach." Landi stated that he was treating Rosenberg with "spinal adjustments to correct vertebral subluxation complex."
Also on May 6, Guardian received from Rosenberg's wife a copy of a handwritten note, dated May 24, 1997, to their attention from Schwarcz. In it, Schwarcz wrote:
Mr. Rosenberg came to me today regarding termination of his insurance benefits. He claims that he is only able to work as a life insurance agent by training, and that his anxiety and spastic colon (diarrhea with stress) prevent him from further pursuing this occupation. I suggest you have an independent psychiatrist consider the merits of his case.
By letter dated May 7, Guardian informed Rosenberg that after reviewing Landi's APS, it had decided to maintain its termination of benefits. Guardian stated:
Benefits have been provided since September 7, 1988 for unstable bowel syndrome and a mental/emotional disorder. Based on the information which we received, Dr. Landi has been treating you for a back disorder and not the conditions for which this claim has been established.
On June 19, Landi sent Guardian a collection of documents concerning his treatment of Rosenberg. In his cover letter, Landi stated:
The above patient has been under my care for several years for chronic stomach ailments, including inflamed bowels, unstable bowels and colitis, due to a vertebral subluxation. . . . These subluxations have caused his stomach ailments. This problem is being treated by correcting the spinal subluxations by spinal adjustments.
On July 11, Guardian forwarded Landi's documents to Dr. Michael C. Cantor ("Cantor"), a board certified gastroenterologist, and to Dr. John J. Caronna ("Caronna"), Professor and Vice Chairmen of the Department of Neurology and Neurosciences at the New York Hospital-Cornell Medical Center, for their review. On August 7, Cantor responded that "the subluxations described by Dr. Landy [sic] . . . would not cause chronic abdominal symptoms." On August 12, Caronna responded that it is "well known" that "spinal subluxation is not a cause of stomach or bowel disorders." He further stated that Landi's treatment was not appropriate for irritable bowel syndrome or anxiety. Finally, Caronna stated that he had "no information to support a claim of total disability in this case. I can explain the lack of improvement in Mr. Rosenberg's condition since 1992 since chiropractic manipulations appear to be irrelevant to his complaints."
By letter dated September 4, Guardian informed Rosenberg's counsel that Rosenberg's disability claim had been re-evaluated in light of information received from Landi, but that based on Caronna's and Cantor's review of Rosenberg's records, Guardian was maintaining its denial of benefits. Specifically, Guardian wrote that
benefits under [Rosenberg's] claim were provided from September 1, 1988 until March 1, 1997 for unstable bowel syndrome and a mental/emotional disorder. Our investigation revealed that over the course of the last several years, Mr. Rosenberg has not been receiving treatment for either of these conditions, even though his physicians recommended continued treatment.
On September 9, Rosenberg submitted a one-paragraph letter of that date written by Schwarcz in which Schwarcz reported that between March 1992 and February 1995 — "the time he was under my care" — Rosenberg was unable to work "at his occupation."
Schwarcz explained that his diagnosis was based on Rosenberg's behavior, Mrs. Rosenberg's reports, and the "highly dysfunctional nature of his family interactions." By letter dated September 22, Guardian responded that Schwarcz's letter of September 9 provided no new information regarding any treatment Schwarcz was giving Rosenberg.
By letter dated February 4, 1998, Edward K. Kane, Executive Vice President of Guardian, offered to arrange for Rosenberg to be seen by an independent examiner at Guardian's expense. On February 23, Dr. Bert Pepper ("Pepper"), a board certified psychiatrist, examined Rosenberg. Pepper submitted his report on March 9. In it, Pepper stated that Rosenberg "does not, in my opinion, have a significant mental illness or disorder. He has a severe personality disorder which has caused him to be unhappy and unsuccessful in most areas of his life." Pepper further stated that Rosenberg's "limitation and lack of functional capacity to serve as an insurance agent are primarily due to non-psychiatric, non-medical factors. This 51-year old man has been gainfully employed for a total of five years of his life. He apparently has chosen a lifestyle in which not working was acceptable."
Guardian arranged for a second doctor, Dr. Sam L. Friedman ("Friedman"), to examine Rosenberg. Friedman did so on February 26, and prepared his report on March 3. Friedman wrote that "I do not believe that the patient's GI symptoms are related in any way to the reported spinal subluxations. I do not consider the patient's current GI symptoms disabling at their present state."
By letter dated March 20, 1998, Guardian informed Rosenberg that in light of Pepper's and Friedman's reports, it would be maintaining its denial of benefits.
Beginning on November 22, 1999, Rosenberg began to see Dr. J.B. Hayes ("Hayes"), a psychiatrist. By letter dated February 9, 2000, Hayes reported to Rosenberg's counsel that Rosenberg presented with "a history of many years of chronic psychiatric symptoms" characterized by "severe gastro-intestinal reaction" to stress. Hayes further stated that in his opinion, Rosenberg's condition constituted a permanent disability.
Lawsuit On September 14, 2000, Rosenberg sued Guardian in the Supreme Court of the State of New York, County of Rockland. On October 26, Guardian filed a notice of removal to the United States District Court, Southern District of New York. On January 22, Rosenberg filed a motion for remand, which was denied by the Honorable Barrington D. Parker. On August 7, 2001, Judge Parker entered judgment against Rosenberg for failure to prosecute. On September 12, Rosenberg filed a motion for reconsideration pursuant to Rule 60(b), Fed.R.Civ.P. On November 28, the case was reassigned to this Court upon Judge Parker's appointment to the Second Circuit. Rosenberg's motion was then referred to Magistrate Judge Lisa M. Smith, who recommended by Report and Recommendation (the "Report") dated January 15, 2002, that the motion be denied. By Order dated May 24, 2002, this Court granted Rosenberg's motion.
Discussion While defendant has styled its motion a motion for summary judgment, its motion is in substance an appeal from an administrative judgment. Where "an insurance plan gives its administrator broad discretion to construe the terms of the plan and to determine whether a claimant is entitled to payment of benefits, a court may reverse the administrator's decision only if it is arbitrary and capricious." Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 650 (2d Cir. 2002). "A decision is arbitrary and capricious if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.
Substantial evidence is defined as such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the administrator and requires more than a scintilla but less than a preponderance." Id. (citations omitted). "A court is not free to substitute its own judgment for that of the plan administrator as if it were considering the issue of eligibility anew." Id. (citation omitted).
Rosenberg does not dispute that the arbitrary and capricious standard applies in this case. He argues instead that Guardian's denial of his benefits was arbitrary and capricious because the Plan provides no definition of the "under the care of a doctor" requirement. Rosenberg argues in the alternative that he did meet the "under the care of a doctor" requirement.
Because the Plan states that "The Guardian is the Claims Fiduciary with discretionary authority to determine eligibility for benefits and to construe the terms of the plan with respect to claims," de novo review is not applied. See Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002).
Rosenberg appears to be arguing that because the language of the Plan is ambiguous, it should be interpreted against Guardian.
"ERISA plans are construed according to federal common law," Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002), and courts should "review the Plan as a whole, giving terms their plain meanings." Id. It is well established in the Second Circuit that the rule of contra proferentum does not apply where an administrator's decision is reviewed according to the arbitrary and capricious standard of review. Pagan v. Nynex Pension Plan Nynex Corp., 52 F.3d 438, 443-44 (2d Cir. 1995).
In any event, Rosenberg does not explain how the Plan's requirement that he be "under a doctor's regular care for the cause of his or her disability" is ambiguous and does not offer his own definition of the words used in this phrase. The plain meaning of the condition that Rosenberg be under the regular care of a doctor for the cause of the disability required, at a minimum, that Rosenberg consult with a physician more than sporadically and that the consultations seek care for the cause of the condition which Rosenberg claims disabled him.
Rosenberg also argues that because he was under the care of Schwarcz and Landi, he met the requirement that he be under the care of a doctor. Rosenberg has failed to show that it was arbitrary and capricious for Guardian to determine that his visits to Schwarcz were not sufficiently regular to constitute being under Schwarcz's care. Guardian has presented substantial evidence showing that Rosenberg was not under Schwarcz's "regular care." Specifically, Schwarcz informed Guardian that he infrequently saw Rosenberg after 1992 and that Rosenberg was not following any course of prescribed medication between 1993 and 1996.
Rosenberg argues that he visited Schwarcz infrequently because his condition was essentially incurable and permanent.
Rosenberg further argues that no medication had proven effective. The Plan makes no exception to its "under the care of a doctor" requirement for conditions which are permanent and incurable, unless they involve blindness or the loss of extremities. In any event, Schwarcz reported in 1996, that Rosenberg's symptoms were mild and that he had no objective corroboration of Rosenberg's complaints. Rosenberg has failed to show that it was arbitrary and capricious for Guardian to determine that because Rosenberg's condition involved neither blindness nor the loss of hands or feet, he was required to be under the regular care of a doctor.
Guardian also had substantial evidence to determine that Landi was not treating Rosenberg for "the cause of his . . . total disability." Guardian based its determination on the opinions of three independent doctors that Landi's chiropractic treatments were unrelated to Rosenberg's depression and bowel syndrome.
Reduced to its essence, Rosenberg's contention is that he did not need to submit himself to the regular care of a physician since his condition was essentially untreatable. Even if this were sufficient to allow Rosenberg to evade the Plan's explicit condition for payment of disability benefits — the condition that he have been under the regular care of a doctor for the cause of his disability — Rosenberg has not shown that Guardian was arbitrary and capricious in refusing to accept that Rosenberg's conditions were untreatable.
Rosenberg relies on Regular v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (9th Cir. 2001), for the proposition that Guardian should have based its determination on the opinion of his treating physician, Schwarcz, that he was completely disabled, rather than on the opinions of medical examiners for whose opinion it had paid. While the Second Circuit has not directly addressed the applicability of the "treating physician rule" to a court's review of an ERISA plan administrator's decisions under the arbitrary and capricious standard, it is has found that the treating physician's rule is inapplicable in cases where a court is conducting a de novo review of such decisions. Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 136 n. 4 (2d Cir. 2001).
But, even if the treating physician rule were available, it would not assist Rosenberg. Schwarcz specifically stated in 1996 that he had not himself seen any of the symptoms of which Rosenberg complained, but had rather heard about them from Rosenberg and his wife and was unable to provide any objective findings to corroborate their complaints. Schwarcz's opinion is hardly entitled to the deference that the treating physician's rule would allow it to receive if it were properly supported and consistent with other substantial evidence. See, e.g., Turay v. Aetna U.S. Healthcare, 160 F. Supp.2d 557, 563 (S.D.N.Y. 2001).
Even Schwarcz's judgment about the futility of drug treatment is undercut by Rosenberg's limited participation in drug treatment. Schwarcz believed in 1992 that further drug treatment should not be pursued because Rosenberg had seen numerous psychiatrists before him, had been treated with full courses of many medications, and had experienced no improvement.
In fact, as Kandera's 1991 report reveals, because Rosenberg did not comply with his doctor's directions regarding either medication or psychotherapy, Kandera was unable to give Rosenberg "adequate anti-depressant trials." In these circumstances, it was not arbitrary and capricious for Guardian to reject Schwarz's opinion that Rosenberg's diseases were essentially untreatable.
Because Guardian's denial of benefits was not arbitrary and capricious, it is unnecessary to decide whether Rosenberg's suit is, as Guardian contends, time-barred.
Conclusion
For the reasons stated, defendant's motion is granted. The Clerk of Court shall close the case.SO ORDERED: