Opinion
Civil No. 02-1098 (RHK/AJB)
March 27, 2003
MEMORANDUM OPINION AND ORDER
Matthew B. Newman, Matthew B. Newman, P.A., Savage, Minnesota, for Plaintiff.
Diana Young Morrissey and Deborah A. Ellingboe, Faegre Benson LLP, Minneapolis, Minnesota, for Defendants.
Introduction
This matter comes before the Court on Plaintiff Donna Sexton's Motion for Summary Judgment and Defendants Deloitte Touche LTD Plan and Deloitte Touche's (collectively, "Deloitte") Cross Motion for Summary Judgment. Donna Sexton, a former employee of Deloitte with multiple sclerosis ("MS"), has sued Deloitte over its decision to deny her claim for disability benefits under Deloitte's long-term disability ("LTD") plan ("the Plan") administrated by Metropolitan Life Insurance Company ("MetLife"). For the reasons set forth below, the Court will grant Plaintiff's Motion for Summary Judgment and deny Defendants' Cross-Motion for Summary Judgment.
Background
From May 1997 to December 1999, Donna Sexton worked as a consulting actuary for Deloitte Touche ("Deloitte"), most recently as a Senior Manager practicing as a pension actuary. (Ellingboe Aff. Ex. A at DT 133-35.) Until joining Deloitte, Ms. Sexton led an active and busy life. She often worked 70-80 hours per week, volunteered on the Examination Basic Education Committee of the Society of Actuaries, took advanced education classes, and volunteered. (Id. at DT 133.) After joining Deloitte, however, her pace soon slackened. She stopped taking classes, cut back on social engagements, and had difficulty working eight hour days. (Id. at DT 134.) In May 1998, Deloitte and Ms. Sexton agreed that she could work part time, effective July 1, 1998. (Id. at DT 150-51.)
After feeling tightness around her torso in January of 1999, Ms. Sexton visited her general physician, who diagnosed shingles. (Id. at DT 134.) A few days later, however, she lost the use of the left side of her body. (Id.) Her physician referred her to Dr. Bruce Snyder, of the Minneapolis Clinic of Neurology, who diagnosed her with MS and placed her on medication. (Id.) She soon regained the use of her left side. (Id.)
Despite a part-time schedule, Ms. Sexton still found herself unable to work her required hours. In the year following her MS diagnosis, she increasingly missed work and no longer had the energy to perform basic daily tasks. (Id. at DT 136.) On the morning of December 20, 1999, she was unable to stand. (Id.) She has not returned to work since and filed a claim for LTD benefits in March 2000. (Id. at DT 002.)
Ms. Sexton is a participant in Deloitte's LTD plan, which the company insures through MetLife. In order to receive the first twenty-four months of LTD benefits, a participant must prove that "due to an Injury or Sickness" she is "unable to perform each of the material duties of [her] regular job." (Id. at DT 008.) After twenty-four months, this changes to an "any occupation" standard: The participant must be "unable to perform each of the material duties of any gainful work for which [she] is reasonably qualified taking into consideration . . . training, education, experience. . . ." (Id. at DT 009.) Under the Plan, a participant is required to submit a claim within a specified time. The Plan provides for an appeals process for denied claims, and the participant must send a "request for review" to MetLife within 60 days after receiving the claim of denial. (Id. at DT 018.) The Plan permits one administrative appeal (id.) and affords MetLife full discretionary authority to interpret the Plan's terms and determine all claims (id. at DT 019).
Under the Plan, LTD coverage is not automatic. Employees must choose whether or not they will participate. Although Deloitte serves as the plan administrator, MetLife administers claims for benefits that arise under it. (Id. at DT 019.)
I. Evidence Submitted With Initial Claim
In her claim for LTD benefits filed in March 2000, Ms. Sexton listed Drs. Crispin E. See and Gary Birnbaum as her attending physicians. (Id. at DT 211.) As required by MetLife, her treating physicians submitted several medical reports. Dr. Birnbaum completed the required Statement of Functional Capacity and listed "Multiple Sclerosis" as the "primary diagnosis affecting work ability." (Id. at DT 180.)
Ms. Sexton also submitted the January 20, 2000 office notes of Dr. Birnbaum. Dr. Birnbaum labeled Ms. Sexton's MS as "mild" but noted that she "still feels her balance is off and will occasionally fall. . . . Can get up by herself but must rest for 5-10 minutes. Continues to have decreased energy with need to rest often during the day." (Id. at DT 189.) Dr. Birnbaum also noted that Ms. Sexton was "awake and alert. Relates history in a careful, cogent fashion with good recall of events." (Id. at DT 190.) Dr. Birnbaum noted a history of bipolar disorder and depression, for which Ms. Sexton was currently taking Eskalith-CR and Paxil. (Id. at DT 183.)
Ms. Sexton's claim for LTD benefits also included a December 29, 1999 neurological progress note from Dr. See. Dr. See commented that the "patient complained of being tired and exhausted." (Id. at DT 192.) Although she was given a "Medrol dosepak . . . [s]he continued to feel tired." (Id.) Dr. See, however, indicated that Ms. Sexton was "alert and oriented and was not in acute distress." Dr. See listed Ms. Sexton's MS as "stable" and she had normal blood pressure, speech, motor movement, and reflexes. (Id.)
Lastly, Ms. Sexton submitted a February 14, 2000 neuropsychological report by Dr. Steven Morgan. Dr. Morgan noted that Ms. Sexton's memory impairment was "relatively mild." (Id. at DT 184.) He also found an "impairment of memory function, with some variability in attentional deployment." (Id.) Although Ms. Sexton's memory impairment was not severe, Dr. Morgan indicated that it "could be practically significant in a demanding job. . . ." (Id. at DT 185.) Dr. Morgan also observed that Ms. Sexton's "difficulties with sustained focus may relate to a greater extent to fatigue and signs of mild depression" (id. at DT 185), although he also noted that "she has not experienced these kind of cognitive symptoms in the past in association with depression" (id. at DT 182). "Given the combination of fatigue and mild memory impairment, it may not be realistic for her to expect to complete the same quantity of work of which she has been capable of in the past, although this clearly is a woman with considerable residual strengths cognitively." (Id.)
One day before issuing its letter of decision, MetLife conducted an "initial employee interview" with Ms. Sexton. (Id. at DT 025.) In this interview, Ms. Sexton told MetLife that "[h]er problem is mainly fatigue" and that "[i]f she pushes herself she winds up in bed fatigued." (Id.)
After reviewing the above material, MetLife denied her LTD claim. (Id. at DT 165-67.) In its letter, dated June 8, 2000, MetLife focused on Ms. Sexton's cognitive functions. (Id.) It made no mention of MS-related fatigue. (Id.) Although the medical records "support mild memory impairment," MetLife concluded that the record also showed that she had "strong conceptual reasoning and problem solving skills." (Id. at DT 166.)
In her memorandum, Ms. Sexton refers to material submitted to Deloitte in connection with her short term disability claim. These forms consist of "Deloitte Touche Short Term Disability Claim Form-Attending Physician Statement[s]" signed by Dr. See and Dr. Birnbaum. (App. Part 2 at 000050-59.) On January 12, 2000, Dr. See listed under "patient's symptoms . . . fatigue, gait difficulty" and reported that she "has excessive fatigue." (Id. at 000050-51.) Dr. Birnbaum completed an identical form on February 11, 2000 and described her symptoms as "fatigue overwhelming, generalized weakness, difficulty concentrating." (Id. at 000055.) Both of these forms were signed and submitted to Deloitte before Plaintiff's claim for LTD benefits, but are not part of the administrative record as maintained by MetLife.
II. Evidence Submitted During Appeals Process
Following the Plan's procedures, Ms. Sexton appealed by letter on August 6, 2000. (Id. at DT 132-49.) She attached four letters (from her husband, mother, and two co-workers) as well as her job description, and medical information on MS. In her letter, Ms. Sexton described her fatigue in great detail: she was "unable to work more than 2 hours every other day," "sle[pt] between 10 and 22 hours a day . . . averaging 15 hours of sleep per day," and had difficulty standing, even for short periods of time. (Id. DT 140-41.) Ms. Sexton told MetLife:
I have always judged my life by what I accomplish. Now I accomplish very little. The past two months, the majority of my functional time has been spent working on this letter. Most of my remaining time has been spent staring at the wall or sleeping. My fatigue prohibits me from working, doing household chores, and seeing friends and family on a regular basis.
(Id. at DT 140.) Letters from her husband, coworkers, and mother paint a similar picture.
(Id. DT 154-57.) Her husband described Ms. Sexton as someone who:
often [worked] as many as 60 to 70 hours a week. She was energetic, extremely bright and quick-witted. She is no longer that person. Over time it seemed that Donna's energy level was decreasing. . . . Donna is severely lacking the energy to accomplish normal daily chores. . . . Everyday tasks that used to be routine for her are now a major undertaking.
(Id. at DT 154.)
Ms. Sexton also submitted a letter from Dr. Birnbaum (id. at DT 074), a letter from Dr. Morgan (id. at DT 073), and a Return to Work Progress Report (id. at DT 075). In Dr. Birnbaum's letter, he indicated that Ms. Sexton "reports experiencing overwhelming fatigue as a direct result of her multiple sclerosis" and that she has "difficulty completing work responsibilities." (Id. at DT 074.) According to Dr. Birnbaum,
[Ms. Sexton] has discovered that if she does not pace her activity level each day, she will be exhausted by the next day. . . . Overwhelming fatigue can be a symptom with multiple sclerosis experiences. . . . Studies have demonstrated the presence of this symptom in the multiple sclerosis population.
(Id.) Dr. Morgan's letter echoed the findings of Dr. Birnbaum. Ms. Sexton's memory impairment was mild, "[r]elative to the spectrum of severity," and she complained of fatigue. (Id. at DT 073.) While Dr. Morgan indicated that this was a "subjective complaint," he noted that fatigue is a "common symptom with MS." (Id.)
MetLife also received a Return to Work Progress Report from Bloomington Lake Clinic ("Clinic "). Ms. Sexton was undergoing monitoring for "severe fatigue" and the Clinic determined that she could work a maximum of three hours per day, three days a week. (Id. at DT 075.)
In her letter of appeal, Ms. Sexton provided MetLife with authorization forms for release of information for all health care providers she visited in the last three years. (Id. at DT 141, 144.) Specifically, she provided releases for Noran Neurological Clinic ("Noran"), The Minneapolis Clinic Neurology, Ltd., and Behavioral Health Services ("BHS"). (Id. at DT 158-60.) MetLife neither requested her files nor used them in the appeal process.
Documents from Noran, dated June 26, 2000, show that Ms. Sexton was "concerned about fatigue." (App. Part 2 at 000083-000084.) BHS medical records indicate that Ms. Sexton complained of "fatigue" and sleeping up to 15 hours a day. (Id. at 000072-000079.)
III. MetLife Upholds Denial of LTD Benefits
MetLife submitted Ms. Sexton's appeal to a psychologist consultant and a psychiatrist. Her file was not reviewed by an MS specialist and neither the psychologist nor psychiatrist evaluated Ms. Sexton personally.Based on a review of the medical record, the psychologist concluded that there was evidence of depression and that Ms. Sexton's "concerns about her multiple sclerosis and future were likely negatively impacting her ability to concentrate in the present." (MetLife Admin. Rec. Ex. A, at DT 91.) He found Ms. Sexton to be a "very high functioning woman" whose cognitive impairment was "affective rather than organic." (Id.) The psychiatrist concurred in his review and recommended that Ms. Sexton could "benefit from a psychiatric evaluation." (Id. at DT 92.)
Using these two reviews, MetLife reaffirmed its denial of LTD benefits by letter dated December 28, 2000. (Id. at DT 087-89.) The letter summarized the findings of the psychologist and psychiatrist, as well as the information provided by Ms. Sexton. MetLife did note that Ms. Sexton "reported symptoms of extreme fatigue" and that she had a "history of depression and bipolar disorder". (Id. at DT 089.) MetLife, however, did not substantively address Ms. Sexton's complaints of extreme MS-related fatigue; instead, the letter focused on cognitive fatigue and concluded that her difficulties stemmed from depression.
Nearly a year after MetLife's final decision, Ms. Sexton submitted additional material in support of her LTD claim. Ms. Sexton asked that MetLife reconsider its denial and argued that MetLife had failed to discuss her complaints of fatigue. MetLife, however, refused to reopen her file.
Among many documents, Ms. Sexton forwarded a neuropsychological evaluation by Dr. Norman J. Cohen. This report concluded that Ms. Sexton's fatigue and cognitive disability were not caused by depression or her bipolar disorder but stemmed from her MS. (App. Part 2 at 000094-000095.) Dr. Cohen challenged MetLife's finding that Ms. Sexton's Bipolar Disorder caused her fatigue:
By its very nature, individuals with hypomanic or manic episodes are extraordinarily enervated, often working long hours and reporting grossly increased energy levels, though their activities during these episodes may well be irrational or lacking in purposeful direction. Ms. Sexton first began experiencing symptoms of her Bipolar Disorder in her teenage years, and yet graduated from college and advanced professionally while not on medication. . . . The client was placed on medication in 1992 that has been successful in controlling her Bipolar Disorder. She worked for five years quite successfully while on this medication, including being hired by her last employer, Deloitte and Touche. It does not appear that there has been any significant change in the client's Bipolar Disorder over the past nine years, since her medication was introduced; there is no reason to suspect that the client's grossly increased fatigue over the past four years reflects any change in her psychiatric status. . . .
(Id. at DT 000095.)
While the parties heatedly dispute whether the Court should review this, or other, information as part of its decision, the Court will limit its review exclusively to the evidence that was before the administrator when the claim was denied. See Salulka v. Lucent Techs., Inc., 206 F.3d 763, 769 (8th Cir. 2000).
Standard of Decision
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). It is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). The Court views the evidence, as well as all reasonable inferences, in a light most favorable to the nonmoving party. See Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996); see Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The moving party carries the burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The nonmoving party may not rest upon the allegations or denials of its pleadings. Rather, the nonmovant must establish the existence of specific facts that create a genuine issue for trial. Neither mere allegations nor denials are sufficient. See Liberty Lobby, 477 U.S. at 256.On summary judgment, the court does not weigh facts or determine the credibility of affidavits and other evidence. See id. at 249. The nonmovant cannot, however, avoid summary judgment by highlighting some alleged factual dispute between the parties. Instead, the disputed fact must be "outcome determinative under prevailing law"; it must be material to an essential element of the specific theory of recovery at issue. See Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992). In essence, the court determines whether there is a need for a trial. Liberty Lobby, 477 U.S. at 250.
Analysis I. ERISA Standard of Review
The Employee Retirement Income Security Act of 1974 ("ERISA") "provides a plan beneficiary with the right to judicial review of a benefits determination." 29 U.S.C. § 1132(a)(1)(B). Where, as here, a plan gives the administrator "discretionary authority to determine eligibility for benefits," the Court generally reviews the administrator's decision for abuse of discretion. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). This deferential standard stems from courts' hesitancy to interfere with the administration of benefits plans. Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir. 1998).
Courts apply a less deferential standard of review, however, when a plaintiff presents "material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator's fiduciary duty to her." Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998). Not only must the evidence be material and probative, but the alleged conflict or procedural irregularity must be tied to the denial of benefits. Id. at 1161. To obtain review under the less deferential standard, a plaintiff must offer evidence that "gives rise to serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator's whim." Layes, 132 F.3d at 1250 (internal quotation marks omitted).
In short, the standard of review in denial of benefits cases exists along a continuum; the amount of deference is inversely proportional to the administrator's conflict or procedural irregularity. See Woo, 144 F.3d at 1161-62. The greater the conflict of interest or procedural irregularity, the less deference accorded to the decision denying benefits. Id. at 1162.
A. Conflict of Interest
Ms. Sexton first contends that MetLife has an inherent conflict of interest since it is both insurer and decision maker. (Pl.'s Mem. Supp. Summ. J., at 13 n. 43.) Where a company is both insurer and plan administrator, the Eighth Circuit has recognized a rebuttable presumption of a palpable conflict of interest. See Barnhart v. UNUM Life Ins. Co., 179 F.3d 583, 587-88 (8th Cir. 1999). This inquiry is both "fact specific" and "limited to instances where the relationship places the ERISA benefits plan administrator in a `perpetual' conflict of interest." Davolt v. Executive Comm. of O'Reilly Auto., 206 F.3d 806, 809 (8th Cir. 2000); see also Armstrong v. Aetna Life Ins. Co., 128 F.3d 1263, 1265 (8th Cir. 1997). Neither party disputes that MetLife is both insurer and plan administrator of the Deloitte LTD plan.
Here, Deloitte has not rebutted the presumption that MetLife has a conflict of interest. See Barnhart, 179 F.3d at 589 (finding a conflict where defendant has offered "no ameliorating circumstances to show why this is not a palpable conflict"). Deloitte has marshaled no evidence by which the Court could "view the fiduciary arrangement between [MetLife], its claims reviewers, and the plan beneficiaries as the type ERISA provides as administered `solely in the interest of the participants and beneficiaries.'" Armstrong, 128 F.3d at 1265 (quoting 29 U.S.C. § 1104(a)(1)). This conflict qualifies as "perpetual" because MetLife's "fiduciary role lies in perpetual conflict with its profit-making role as a business." See Brown v. Blue Cross Blue Shield of Ala., 898 F.2d 1556, 1561 (11th Cir. 1990); see also Armstrong, 128 F.3d at 1265 (citing Brown, 898 F.2d at 1561); Davolt, 206 F.3d at 809 (citing Armstrong, 128 F.3d at 1265); but see Farley v. Arkansas Blue Cross Blue Shield, 147 F.3d 774, 777 (8th Cir. 1998) (noting that "equally compelling long-term business concerns would encourage insurers to make these determinations in a fair and consistent manner"). Because MetLife has not carried its burden, the Court concludes MetLife was operating under a conflict of interest when reviewing Ms. Sexton's claim.
B. Serious Procedural Irregularity
Ms. Sexton has also demonstrated a serious procedural irregularity. The administrative record, as considered by MetLife, shows that MS-related fatigue was a significant issue in her claim. Ms. Sexton's personal statement, letters from her husband, mother, and co-workers, Dr. Birnbaum, and Dr. Morgan all make MS-related fatigue a primary, if not overriding, issue. In this context, with the issue of MS undisputably on the table, MetLife's decision to assign a psychologist and psychiatrist to review Ms. Sexton's file, rather than a physician with substantive experience with MS, is inexplicable at best, and, at worst, smacks of a determination to find a psychological rather than physiological cause for her impairment.
These facts closely parallel those before the Eighth Circuit in Woo v. Deluxe Corp, 144 F.3d 1157 (8th Cir. 1998). In Woo, the Eighth Circuit found a serious procedural irregularity where a plan administrator failed to take evidence of an uncommon disease into account when denying plaintiff's claim. Id. at 1161. The defendant insurer was presented with medical evidence of plaintiff's scleroderma and the opinions of her two treating physicians, both knowledgeable in the disease. Id. The defendant, however, assigned a medical consultant who had neither the relevant training nor experience to review her claim for LTD benefits. Id. While the defendant argued that it was under no duty to have a specialist review her claim, the Eighth Circuit found that, given the nature of the plaintiff's illness and the material presented, the insurer did not use proper judgment by not having an expert review her claim. Id.
Deloitte attempts to distinguish Woo by arguing that its holding applies only to "uncommon" diseases. Under Deloitte's theory, MetLife was only responsible to have an expert review Ms. Sexton's claim if she had an "uncommon" disease, like scleroderma, rather than a "common" disease, like multiple sclerosis. As counsel for Deloitte stated in oral argument:
What the Eighth Circuit seemed to [be] focusing on in Woo, from my reading of it, was when you have an uncommon disease such as what was at issue in Woo, then there is a requirement to at least get somebody who understands that disease to look at the file, if nothing else, to look at the file and say, does this sound right? Does this sound wrong? What do we have in front of us?
When you have a disease that is not uncommon, and MS is not uncommon — it's commonly treated by neurologists and so forth — without having an uncommon disease, Woo does not suggest that there is a requirement that the plan administrator seek out that additional level of whatever you call it, the review or testing or what not.
(Audio Tape: Oral Argument (Feb. 10, 2003) (emphasis added).) Deloitte's reading of Woo, in which the obligation of the plan administrator to seek an expert opinion depends on whether or not the disease is "uncommon," finds some support in Eighth Circuit case law. For instance, in Coker v. Metropolitan Life Ins. Co., 281 F.3d 793 (8th Cir. 2002), the Eighth Circuit found in a claim involving diabetes that it was appropriate for the plan administrator to seek input from a family practitioner rather than an expert because a family practitioner would be qualified to diagnose the disease.
Deloitte's theory breaks down, however, when applied to the facts at hand. While scleroderma is indeed uncommon, affecting approximately 300,000 persons nationwide (see Scleroderma Foundation, "If You Have Scleroderma" (2000), available at http://www.scleroderma.org/pdf/notaln.pdf), it is not significantly less common than multiple sclerosis, which affects approximately 400,000 persons nationwide (see National Multiple Sclerosis Society, "Just the Facts" (2002), available at http://www.nationalms society.org/Brochures-Just%20the.asp)). Both figures stand in stark contrast to the 17 million persons affected by diabetes nationwide. (See Centers for Disease Control and Prevention, "Diabetes: Disabling, Deadly, and on the Rise" (2002), available at http://www.cdc.gov/diabetes/pubs/pdf/Diabetes2002.pdf.) Multiple sclerosis is therefore far closer to an "uncommon" disease, like scleroderma, than to a common disease, like diabetes.
Pursuant to Fed.R.Evid. 201(b), the Court takes judicial notice of the statistics cited in this paragraph.
Rather than statistics, of course, what Woo stands for is the proposition that a claimant's file should be reviewed by a practitioner with sufficient training and experience to competently address the claims at issue. While a family practitioner, for instance, may be qualified to address the claim of a person with diabetes, see Coker, 281 F.3d at 793, that same doctor might well be unqualified to address the claim of a person suffering from scleroderma, see Woo, 144 F.3d at 1161.
Here, MetLife's decision to entrust Ms. Sexton's appeal exclusively to mental heath professionals meant that her claims of MS-related fatigue were not addressed by a physician with sufficient training and experience to rule out a physiological cause for her complaint. The conclusion of MetLife's reviewing psychologist that Ms. Sexton's condition was "affective rather than organic" (Ellingboe Aff. Ex. A at DT 091) is unsurprising; if Ms. Sexton's condition were organic, the psychologist would not have sufficient training to diagnose it. Likewise, the psychiatrist, who at least possesses an M.D., limited his analysis to Ms. Sexton's "cognitive dysfunctions," "concurr[ed] with [the psychologist's] recommendation", and opined that Ms. Sexton could "benefit from a psychiatric evaluation." (Id. at DT 092.) Missing from either report is any discussion whatsoever of fatigue and MS.
Ms. Sexton advanced two, independent grounds for her disability claim: "1. My decrease in cognitive abilities resulting from multiple sclerosis (MS)", and "2. My fatigue resulting from MS". (Id. at DT 052 (emphasis added).) Notably, the psychiatrist-the only M.D. among MetLife's medical consultants involved in the appeal-indicates in the "Questions Posed" section of his report that he "was asked to review the medical information to help make a determination regarding the described cognitive dysfunctions and how they affect her ability to return to work." (Id. at DT 092 (emphasis added).) His report is entirely silent as to fatigue.
In the context of Ms. Sexton's appeal, where the primary treating physician has described MS as being the "primary diagnosis affecting work ability" (Ellingboe Aff. Ex. A at DT 180), where the claimant had reported "overwhelming fatigue as a direct result of multiple sclerosis" (id. at DT 074), and where her treating doctors note that "[o]verwhelming fatigue" is a "common symptom with MS" (id. at DT 074, DT 073), MetLife's failure to consult an MS specialist and its decision to entrust Ms. Sexton's appeal exclusively to mental health professionals constitutes a serious procedural irregularity every bit as egregious, if not more so, than the procedural irregularity at issue in Woo.
C. Connection to Substantive Decision
Although Ms. Sexton has demonstrated a conflict of interest and procedural irregularity, that does not end the Court's inquiry. To obtain less deferential review, Ms. Sexton also must demonstrate that the conflict of interest or procedural irregularity "caused a serious breach of the plan administrator's fiduciary duty to her." Woo, 144 F.3d at 1160. A claimant satisfies this requirement by showing that the conflict or irregularity has "some connection to the substantive decision reached." Id. at 1161.
While Ms. Sexton has established a palpable, perpetual conflict of interest, she has not established that it was connected to MetLife's decision to deny benefits. Ms. Sexton has not carried her burden of presenting "material, probative evidence that this palpable conflict of interest actually caused a serious breach of the plan administrator's duty to her." Schatz v. Mutual of Omaha Ins., 220 F.3d 944, 948 (8th Cir. 2000) (emphasis added). As the Eighth Circuit has noted, "Woo's second prong presents a considerable hurdle for plaintiffs." Barnhart, 179 F.3d at 589 n. 9. Ms. Sexton has not surmounted it with regard to MetLife's conflict of interest.
Ms. Sexton is far more successful at linking the procedural irregularity with MetLife's decision to deny benefits. MetLife's decision not to consult an appropriate specialist gives rise to "serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator's whim." Layes, 132 F.3d at 1250 (8th Cir. 1998)). Without the input of an appropriate specialist, the plan administrator relied upon opinions of MetLife's mental health professionals that were inherently incomplete. Thus, the decision to deny benefits has every indicia of being "reached without reflection and judgment." Buttram v. Central States, S.E. S.W. Areas Health Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996). Ms. Sexton has therefore demonstrated a connection between the procedural irregularity and the decision reached and is entitled less deferential review.
II. Sliding-Scale Review
Having found that Ms. Sexton has "traverse[d] the Woo gateway," Schatz, 220 F.3d at 949, the Court will review MetLife's denial of benefits under the "sliding scale" standard. Under this standard, "the evidence supporting the plan administrator's decision must increase in proportion to the seriousness of the conflict or procedural irregularity." Woo, 144 F.3d at 1162. Because the Court finds that the procedural irregularity connected to the decision to deny benefits was egregious, the Court will "require that the record contain substantial evidence bordering on a preponderance" in order to support MetLife's denial of benefits. Id.
Under the plan, Ms. Sexton was required to meet the definition of "Total Disability" to be eligible for LTD benefits:
"Total Disability" or "Totally Disabled" means that, due to an Injury or Sickness you:
1. are unable to perform each of the material duties of your job; and
2. after the first 24 months of benefit payments, you must be unable to perform the material duties of any gainful work for which you are reasonably well qualified taking into consideration your training, education, experience and past earnings; or
3. you, while unable to perform all the material duties of your regular job on a full-time basis, are:
a. performing at least one of the material duties of your regular job or any other gainful work or service on a part-time or full-time basis; and
b. earning currently at least 20% less per month due to that same Injury or Sickness.
Under the Plan, "Sickness" is defined as "illness, disease or pregnancy." (Ellingboe Aff. Ex. A at DT 010.)
As described by Ms. Sexton, the "material duties" of her job required her to (1) manage benefit and post retirement medical consulting engagements, (2) perform professional standard reviews, (3) prepare and conduct training sessions, and (4) participate in the Defined Benefit Expert Subcommittee. Consulting Ms. Sexton's description and Deliotte Touche's position description for a Defined Benefit Actuarial Senior Manager (id. at DT 147-DT 149), it is clear that Ms. Sexton's job was a demanding one that required a consistent presence in the workplace as well as extraordinary attention to detail and stamina.
(Id. at DT 008-DT 009.)
Applying that definition to the material duties of Ms. Sexton's job and the administrative record before MetLife, the Court finds that MetLife's decision was not supported by substantial evidence. Even under the arbitrary and capricious standard, the Court would find MetLife's decision unsupportable. See Barnhart, 179 F.3d at 589 n. 9 (noting that a plaintiff who satisfies Woo's threshold requirements "will more than likely have substantial evidence showing that the fiduciary's decision was arbitrary and capricious once the sliding scale is invoked to lessen the court's deference for the administrator's decision").
In her appeal, Ms. Sexton put the following information, along with her medical records and other supporting information, in front of the plan administrator:
(1) A letter from her treating neurologist indicating that "[o]verwhelming fatigue can be a symptom a person with multiple sclerosis experiences," "studies have demonstrated the presence of [fatigue] in the multiple sclerosis population," and that "Ms. Sexton reports experiencing overwhelming fatigue as a direct result of her multiple sclerosis." (Ellingboe Aff. Ex. A at DT 074.)
(2) An "attending physician's statement of functional capacity" from the same neurologist stating that the "primary diagnosis affecting work ability" was MS. (Id. at DT 180.)
(3) A letter from her treating neuropsychologist indicating that fatigue is "a common symptom with MS" and a "subjective complaint of Ms. Sexton" and concluding that Ms. Sexton was disabled. (Id. at DT 073.)
(4) A letter from Ms. Sexton that includes a summary of journal studies demonstrating the correlation between fatigue and MS:
The December 1999 issue of International Journal of MS Care states that "Fatigue is the most common symptom experienced by individuals with multiple sclerosis (MS), regardless of their disability level or the severity of the disease." The April 1999 issue of Multiple Sclerosis contains the results of a survey of MS patients. In this survey, fatigue accounted in whole or in part for 65% of the disability experienced. Less that 1/3 of these patients had been treated with medication for their fatigue. The Fall 1997/ winter 1998 of Inside MS includes a study that "reveals the prevalence of fatigue in people who are mildly disabled by multiple sclerosis."
(Id. at DT 060.) The letter also contains an account of Ms. Sexton's experiences:
From December 1999 until the present I have suffered from fatigue daily. Occasionally, I wake up and am unable to do more than walk the 10 feet from my bed to the bathroom. Occasionally, I wake up, start getting ready, and collapse following my shower. My fatigue often prevents me from leaving the house. On days when I do leave the house, I have to return home after 2-5 hours and sleep.
Sometimes, as soon as I enter my house my legs turn to cement, I fall to the floor and fall asleep. If I'm lucky my husband carries me to bed. If I over [do] activities one day, I always spend at least the next day in bed. When fatigued, minimal exertion makes me feel like a truck had hit me. I am totally depleted and I ache all over.
While Ms. Sexton's neuropsychologist is a Ph.D. and not an M.D., he is board certified in clinical neuropsychology, a process which is "strictly analogous to medical board specialty certification" and is "the recognized credential that provides external evidence of an individual's competency for this area of specialized practice." (See The American Board of Clinical Neuropsychology, "ABPP Diploma," available at http://www.theabcn.org/abpp_diploma/.); see also Fed.R.Evid. 201(b).
In contrast, there is nothing in the record to indicate that MetLife's psychologist has any speciality credential. The record indicates only that he is an "onsite psychologist consultant" (see Ellingboe Aff. Ex. A at DT 091) "doing consultations with MetLife disability" (id. at DT 092) and who possesses a Psy.D. rather than a Ph.D. (id. at DT 091).
Although Deloitte refers to MetLife's psychologist as a "neuropsychologist" in its factual summary, the page to which it cites actually refers to Ms. Sexton's neuropsychologist, rather than MetLife's. This is one of several record cites in Deloitte's Memorandum that simply does not bear fruit. (See e.g., Defs.' Mem. Supp. Summ. J. at 19 (inaccurately reporting neuropsychologist's assessment regarding "claims about reduced job performance," assigning a "conclusion" to MetLife regarding the correlation between mental health issues and fatigue when no such conclusion or correlation exists on the cited page or elsewhere in the record, and noting that Ms. Sexton "had not sought treatment in years" for mental health issues that she was, in fact, taking medication to address).)
(Id. at DT 057.)
(5) A "Return to Work Progress Report" from the Bloomington Lake Clinic diagnosing "severe fatigue" and indicating that Ms. Sexton "may work maximum 3 hours — 3 days per week." (Id. at DT 075.)
(6) A letter from the person with whom Ms. Sexton worked most closely at Deloitte Touche stating:
When Donna first started at Deloitte Touche, she was able to perform the necessary tasks to keep up with her client responsibilities. However, as time passed, Donna seemed unable to focus her thoughts and was unable to meet her responsibilities to her clients. In addition, Donna was frequently out of the office due to her illness and was unable to work long periods of time without losing her focus or showing signs of fatigue and scattered thoughts. Although Donna attempted to keep up with her client work and other responsibilities, she was not able to.
(Id. at DT 057.)
While Ms. Sexton and her treating doctors acknowledge that "[o]verwhelming fatigue" (id. at 074) is a "subjective complaint" (id. at DT 073), its prevalence in the multiple sclerosis population and presence in Ms. Sexton herself was apparent from the face of the administrative record. As the Eighth Circuit noted in House v. Paul Revere Life Ins. Co., 241 F.3d 1045, 1048 (8th Cir. 2001), "even if the exhaustive supporting documents [plaintiff] submitted could be dismissed as subjective, nothing in the terms of the plan support [defendant's] demand for `objective medical evidence.'" Such is the case here. Ms. Sexton provided extensive documentation demonstrating her fatigue, its implications for her ability to work, and its relationship to MS. Had MetLife wished to challenge her submissions, it could have required Ms. Sexton to undergo additional medical examinations under the Plan, utilized the releases Ms. Sexton provided, or consulted qualified independent consultants. It did none of these. Therefore, the information provided by Ms. Sexton demonstrating that "due to an Injury or Sickness" she was "unable to perform each of the material duties of [her] job" is essentially unrebutted. (Ellingboe Aff. Ex. A at DT 008.) While the evidence of currently — medicated mental health issues might account for a scintilla of evidence supporting MetLife's denial of benefits, in the context of the administrative record, it is barely that. Arbitrary and capricious, MetLife's decision represents a breach of fiduciary duty that is unsupportable under any standard.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (Doc. 8) is GRANTED;
2. Defendants' Motion for Summary Judgment (Doc. 11) is DENIED;
3. Plaintiff is awarded past-due long-term disability benefits and prejudgement interest;
4. Defendant is ordered to reinstate Plaintiff in its long-term disability plan as a participant entitled to benefits under the plan.
Plaintiff shall submit an affidavit and supporting documents as to attorneys' fees and costs pursuant to 29 U.S.C. § 1132(g).
LET JUDGMENT BE ENTERED ACCORDINGLY.