Opinion
Case No. 1:04CV1184.
May 17, 2005
REPORT AND RECOMMENDATION
The plaintiff, Jo Ann Shestina ("Shestina") filed a complaint against defendant Hartford Life and Accident Insurance Co. ("Hartford"), alleging violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), pursuant to 29 U.S.C. § 1132(a)(1)(B). (Doc. 1, complaint.) ERISA provides that a civil action may be brought by "a participant or beneficiary" to recover benefits due to her under the terms of her employee benefits plan, to enforce her rights under the terms of the plan, or to clarify her rights to future benefits under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B).
The complaint alleges that Shestina was an employee of PMC Specialties Group, Inc. ("PMC"), and as such was a participant in PMC's Employee Benefits Program. (Compl., at ¶¶ 6-7, 9.) Among the benefits provided by the Employee Benefits Program was Hartford's Long-Term Disability Plan ("the Plan"). Id. at ¶ 8.
At some point, approximately 1996, Shestina claims that she became "totally and permanently disabled by virtue of suffering from, including, but not limited to, the conditions of fibromyalgia, Sjorgren's syndrome, and arthritis." Id. at ¶ 10. Shestina filed a claim for short-term disability with Hartford, and received short-term disability benefits until February 1997, when she began receiving long-term disability benefits under the Plan. Id. at ¶¶ 11-13. Shestina claims that she received long-term disability benefits from Hartford until April 2001, when those benefits were wrongfully terminated. Id. at ¶ 14.
Shestina alleges that she pursued all available administrative remedies regarding the wrongfully terminated benefits, without success, and that Hartford's denial of her continued benefits was arbitrary and capricious, in violation of ERISA. Id. at ¶¶ 30-33. Hartford concedes that the Plan is an ERISA-governed employee benefit plan. (Doc. 19, at 1.)
Both parties have moved for judgment on the administrative record. (Doc. 16 and 19.) When reviewing a denial of benefits pursuant to an ERISA plan, this court reviews only evidence contained in the administrative record. Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 660 (6th Cir. 2004) (citingWilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 619 (6th Cir. 1998)); Heffernan v. UNUM Life Ins. Co. of Am., No. 02-3412, 2004 WL 1327868, at *6 (6th Cir. June 11, 2004). Shestina has filed a certificate of uncontested facts, as has Hartford. (Doc. 33, 15.)
I. FACTUAL BACKGROUND
Shestina was employed as a marketing secretary for PMC in Rocky River, Ohio. She was a participant in the PMC Group Long-term Disability Plan. The Plan is funded through an insurance policy issued by Hartford to PMC, numbered GLT-34263. (Doc. 15, ¶¶ 1-3; doc. 33, ¶ 1. See also doc. 17.) The Plan Administrator is PMC. (Doc. 17, Policy, at POL 0048-0049.)A. Relevant Provisions of the Plan
Regarding disability benefits, the Plan provides:
You will be paid a monthly benefit if: (1) you become Totally Disabled while insured under this plan; (2) you are Totally Disabled throughout the Elimination Period; (3) you remain Totally Disabled beyond the Elimination Period; (4) you are under the regular care of a Physician, other than yourself; and (5) you submit proof of loss satisfactory to The Hartford.
(Doc. 17, POL 0068.) The Plan defines "Totally Disabled" or "Total Disability" as follows:
Total Disability or Totally Disabled means that:
(1) during the Elimination Period, and
(2) for the next 60 months, you are prevented by:
(a) accidental bodily injury;
(b) sickness;
(c) Mental Illness;
(d) substance abuse; or
(e) pregnancy,
from performing the essential duties of your occupation, and as a result you are earning less than 20% of your Pre-disability Earnings, unless engaged in a program of Rehabilitative Employment approved by us.
After that, you must be so prevented from performing the essential duties of any occupation for which you are qualified by education, training or experience.Id. at POL 0061-0062. The Plan contains limitations on payment of benefits in cases of mental illness, under the following provision:
If you are Disabled because of:
(1) Mental Illness that results from any cause;
(2) Any condition that may result from Mental Illness;
(3) alcoholism; or
(4) the non-medical use of narcotics, sedatives, stimulants, hallucinogens, or any other such substance,
then, subject to all other Policy provisions, benefits will be payable a total of 24 months unless at the end of the 24 month period:
(1) you are confined in a hospital or other place licensed to provide medical care for the disabling condition, in which case:
(a) benefits will continue during the confinement; and
(b) if you are still Disabled when discharged, benefits will continue for a recovery period of up to 90 days; and
(c) if you become reconfined during the recovery period for at least 14 consecutive days, benefits will continue during the confinement and another recovery period of up to 90 days; or
(2) you continue to be Disabled and become confined in a hospital, or other place licensed to provide medical care, for the disabling condition for at least 14 consecutive days, in which case benefits will be paid while so confined.Id. at POL 0069.
The Plan defines "mental illness" as "any psychological, behavioral or emotional disorder or ailment of the mind, including physical manifestations of psychological, behavioral or emotional disorders, but excluding demonstrable, structural brain damage." Id. at POL 0069.
The Plan requires a claimant to provide written proof of loss.Id. at 0018. Hartford reserves the right to determine if a claimant's proof of loss is satisfactory. Id. at POL 0019. After submitting proof of loss, the Plan requires a claimant "to apply for Social Security benefits when the duration of Total Disability meets the required minimum required to qualify for such benefits," and to pursue administrative appeals in the event of denial of Social Security benefits. Id. at 0019.
B. Shestina's Disability Claim
Shestina's last day worked was July 26, 1996. (Doc. 15, at ¶ 11; AR-0676.) PMC submitted Shestina's claim for long-term disability (LTD) benefits to Hartford on Jan. 8, 1997. (Doc. 15, at ¶ 10; Administrative Record (AR) 0675.) Shestina claimed disability as the result of "fibromyalgia, Sjogren's syndrome (progressive and debilitating), and depression." (Doc. 15, at ¶ 12; AR-0676.)
C. Shestina's Medical History
Shestina worked as a marketing secretary for PMC. She described the duties of her occupation as:
Operated computer, composed letters, memos, etc. Handled statistical reports. Calculated "% of goal" and "Import" data. Maintain files. Attended meetings/seminars, copied month-end reports, opened and sort incoming mail. Assist outside sales force and customer service dept. along with other marketing personnel. Answered phones.
(Doc. 15, at ¶ 13; citing to AR-0765.)
On Feb. 19, 1996, Dr. Ali Askari performed a rheumatology evaluation on Shestina. (Doc. 15, at ¶ 14; doc. 33, at ¶ 1; AR 0628-0629, 0649.) Shestina arrived "complaining of having pain in most of the joints and the muscles and extreme fatigue, to the point that she has not been able to cope with her work as a secretary." (Doc. 15, at ¶ 14; AR 0628, 0649.) He noted that Shestina's condition appeared to be "extreme fatigue and myalgia consistent fibromyalgia but dryness and enlargement of the parotids and sublinquals may indicate early Sjorgen's Syndrome with secondary fibromyalgia." (AR 0629.) Blood tests for Sjorgen's Syndrome were negative, however. (AR-0656.)
Fibromyalgia is a disease similar to chronic fatigue syndrome; the cause is unknown, and the symptoms are entirely subjective, usually involving chronic pain and fatigue. McPhaul v. Board of Comm'rs of Madison County, 226 F.3d 558, 562 (7th Cir. 2000), cert. denied, 532 U.S. 921 (2001). Sjogren's syndrome is "a symptom complex of unknown etiology, usually occurring in middle-aged or older women." Dorland's illustrated medical dictionary 1832 (30th ed. 2003). Sjogren's syndrome is an autoimmune disorder, which is also associated with rheumatic disorders such as rheumatoid arthritis. Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 12 n. 3 (1st Cir. 2003). The condition is "marked by inflammation of the cornea, dryness of the mouth and mucous membranes, purpuric spots on the face, enlargement of the parotid salivary glands and arthritis in several joints." Martonik v. Heckler, 773 F.2d 236, 238 n. 4 (8th Cir. 1985).
Fibromyalgia does not always or necessarily substantially limit a person's ability to work, such that one is considered disabled. See, e.g., Johns-Davila v. City of New York, No. 99-CIV-1885, 2000 WL 1725418, at *9 (S.D.N.Y. Nov. 20, 2000) (citing cases); Garrett v. Autozone, Inc., 71 F.Supp.2d 617, 620-621 (E.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Cir. 2000) (citing cases); Zimmerman v. General Motors, Delphi Energy Engine Mgmt. Sys. Div., 959 F.Supp. 1393, 1396-1397 (D. Kan. 1997).
On March 30, 1996, Dr. Askari noted that his review of laboratory tests "indicates that ANA is negative, Sed-rate is elevated, over 40 and rheumatoid factor is negative." (Doc. 15, at ¶ 16; AR-0648.) He stated that the "problem as indicated appears to be a combination of fibromyalgia and Sjogren's Syndrome. ANA has been positive in laboratory test done before by Dr. Boyle." Id.
Antinuclear antibodies (ANA) are frequently found in Sjogren's syndrome. Dorland's medical dictionary at 100.
On March 6, 1997, Erica Karlinsky, Ph.D., a clinical psychologist, notified Hartford that she had diagnosed Shestina with "Major Depressive Disorder, Recurrent Moderate" (296.32). (Doc. 15, at ¶ 17; AR-0603.) Dr. Karlinsky indicated that Shestina's specific psychiatric impairments were "severe fatigue which directly adversely affects ability to concentrate, ability to perform normal job duties. Depression or depressed mood, also affecting ability to concentrate and ability to perform." Id. Dr. Karlinsky stated that Shestina would be unable to perform the duties of marketing secretary at another employer, and that Shestina had reached the decision to leave work with her support and guidance. Id. at AR-0603-0604.
On March 19, 1997, Hartford notified Shestina that her claim for Long-Term Disability benefits had been approved. (Doc. 15, at ¶ 18; AR-0774.)
Dr. Askari examined Shestina again on April 10, 1997, at which point he noted that overall, the fibromyalgia had improved, "inflammatory and spondyloarthopathy has improved with minimal tenderness in the SI joints at the present time and minimal morning stiffness." (Doc. 15, at ¶ 18; AR-0532.)
On July 3, 1997, the Social Security Administration (SSA) notified Shestina that she was considered disabled under SSA rules as of July 27, 1996, and that she was entitled to monthly disability benefits as of January 1997. (Doc. 5, at ¶ 20; doc. 33, at ¶ 6; AR-0427, 0778.)
Shestina returned to Dr. Askari on Aug. 11, 1997, "complaining of having aches, pains and stiffness of the joints and muscles and particularly in the lower back which has been associated with stiffness." (Doc. 15, at ¶ 21; AR-0532.)
Dr. Askari completed an "Attending Physician's Statement of Disability" on Aug. 25, 1997. (Doc. 15, at ¶ 22; AR-0783-0784.) His diagnosis of Shestina's condition was given as "fibromyalgia with inflammatory spondylo-arthopathy." (AR-0783.) Dr. Askari did not complete the sections indicating any impairment, nor did he indicate that the patient was disabled in any way. (See AR-0784, §§ 7, 8, 10.)
On Nov. 20, 1997, David Edelstein, an occupational therapist at University Hospitals, performed a functional capacity evaluation, as a result of a referral from Dr. Askari. (Doc. 15, at ¶ 23; AR-0474.) Edelstein noted that Shestina reported that she had
. . . additional diagnoses of endometriosis, heart palpitations and valve trouble, ovarian cysts, and that the tissue between her vagina and rectum is too thin. She says she is having difficulty exercising, standing, lifting and walking.
(Doc. 33, at ¶ 7; AR-0474.) During the evaluation, Edelstein observed that Shestina "displayed exaggerated pain behaviors, including grimaces and groans, with all activities." (AR-0474.) Edelstein's assessment was that "Shestina's behavioral profile is consistent with pain magnification behavior. Her mood shifts indicate she is depressed." Her behavior during the evaluation "indicates poor endurance for functional activity." (AR-0476.)
Dr. Askari examined Shestina again on Dec. 9, 1998 (AR-0811), and subsequently completed a Physical Capacities Evaluation Form on Dec. 21. (Doc. 15, at ¶ 25; AR-0484-0485.) Dr. Askari indicated that Shestina could sit, stand, and walk up to 30 minutes at a time, and drive up to one hour at a time. She could occasionally lift up to ten pounds at a time. He noted that she "tires very easily [with] disease process." Id.
Dr. Askari completed an "Attending Physician's Statement of Continued Disability" on Feb. 9, 1999. (Doc. 15, at ¶ 26; AR-0805-0806.) His primary diagnosis of Shestina's condition was given as "Sjogren's syndrome, fibromyalgia, fibrositis." (AR-0805.) Her progress was "unchanged," and she was limited to standing for less than half an hour, walking short distances, and lifting less than ten pounds. (AR-0805-0806.) Her "psychiatric impairment" was "Class 3 — Able to function in only limited stressful situations and only limited in interpersonal relations (moderate)." (AR-0806.)
On April 5, 1999, Dr. Askari noted that Shestina was continuing to take her medications, and was "doing relatively well." (Doc. 15, at ¶ 27; AR-0810.)
In the fall of 1999 and winter of 2000, Hartford received reports of surveillance conducted by Rea Investigations, Inc. (Doc. 15, at ¶ 28; AR-0845-0874.) Shestina was observed shopping on several occasions, and unloading "a shopping cart loaded with items" into the trunk of her vehicle. (AR-0849, 0871, 0874.) She was observed working out on a treadmill at a fitness center, "walking rapidly" and "breaking a sweat." (AR-0849-0850.) Some of these activities were videotaped.
On January 15, 2000, Shestina was videotaped accompanying her parents and sister to Rocky River High School, where she spent approximately one hour on the bleachers watching a girls' basketball game. After the game, Shestina drove her parents and sister to their respective homes. (Doc. 15, at ¶ 30; AR-0863, 0707.)
On Jan. 17, Shestina was observed picking up medical records from Fairview Hospital. Later, she was videotaped playing with a dog, "tussling with him with a Frisbee." Then, she went to a grocery store and Target, and then proceeded to an appointment at the Cleveland Clinic. (Doc. 15, at ¶ 31; AR-0870-0872.)
Shestina had an appointment with Leonard Calabrese, D.O., vice-chairman of the Department of Rheumatic and Immunologic Disease at the Cleveland Clinic, on Jan. 17, 2000. Dr. Calabrese wrote that Shestina "came here to seek a new rheumtologist [ sic] to assume her care." Dr. Calabrese said that her medical history showed her condition was "fibromyalgia complicated by Sjogren's syndrome, TMJ disease and chronic depression." A modified disability scale ranked her at 20-30%, which indicates:
moderate to severe symptoms at rest, unable to perform strenuous activity, overall activity reduced 30-50% of expected, unable to leave house except rarely, confined to bed most of the day, unable to concentrate for more than one hour a day.
(Doc. 15, at ¶ 33; AR-0878.) Dr. Calabrese believed that chronic depression was "a major factor limiting her productivity," and he referred her to the Clinic's psychiatrybased pain unit. (AR-0879.)
The Cleveland Clinic prepared a psychiatric pain management evaluation on Apr. 5, 2000, signed by Dr. Edward Covington and Joanne Schneider, R.N. (AR-0459-0461.) The evaluation noted that Shestina "has well documented fibromyalgia," and had been diagnosed as such by Dr. Christina Boieru in 1993, and by Dr. Askari in 1995. (Doc. 33, at ¶ 8; AR-0459.) The report noted that Shestina had been disabled since 1996, and that "[s]ocialization, recreation and work in the home are severely impaired. She spends approximately 20 hours/day reclining." Id.
The evaluation noted that her emotional symptoms included:
sad mood and urges to cry. She often feels irritable and frustrated. She has experienced losses in interest, energy and libido. Humor is preserved. She acknowledged wishes for death, but denied intent.
(Doc. 33, at ¶ 10; AR-0459.) The report noted that treatment on the Chronic Pain Rehabilitation Program was offered, but Shestina declined, "saying that she was sure she'd be too fatigued to complete even one day." The evaluation's prognosis was:
Poor. Her failure to respond to 20 years of psychotherapy bodes ill for any efforts to reduce her somatization, as does her conviction that she cannot tolerate any rehabilitation effort.
(Doc. 33, at ¶ 11; AR-0461.)
Shestina attended her first session of individual psychotherapy for chronic pain rehabilitation at the Cleveland Clinic on May 16, 2000. The therapist noted that Shestina "feels she is unable to work and reports she is `LTD' due to her FM and CFS [chronic fatigue syndrome]. She seems offended when I suggest that many sufferers of FM and CFS can gain back significant functioning in daily life." The summary and recommendation was:
Jo Anne's receptivity is questionable. She hopes to limit our sessions to two to reserve her visits for her regular counseling visits. She recently began psychotherapy with Ruth Wilson, LISW. . . . Chronic Pain Rehabilitation is recommended, however she is resistant, and sees herself "too disabled" to attend. "I can barely walk" she states, however she is observed to ambulate with little difficulty.
(Doc. 15, at ¶ 37; AR-0462.) The report was signed by Kara Kinzler, M.A., counselor, and Judith Scheman, Ph.D., supervising psychologist. Id.
Dr. Syed Zaidi provided an independent medical evaluation on Jan. 22, 2001. (Doc. 33, at ¶ 12; doc. 15, at ¶ 40.) Dr. Zaidi reported that Shestina's "symptoms date back to the early 1990s, when she started upper and lower back pain, and secondarily, she was diagnosed with fibromyalgia and Sjogren's syndrome. She also has a diagnosis of depression." (Doc. 33, at ¶ 12; AR-0197, AR-0724.) Shestina reported to Dr. Zaidi that she stopped working in the summer of 1996 because:
. . . she could not tolerate the day-to-day demands of the work; namely, getting up in the morning, dressing, and facing everything at work. That appears to be more difficulty with day-to-day stresses at work rather than any physical limitation though she states that she cannot carry on every day with the demands of the work, which apparently was desk work and clerical job.
(AR-0198, AR-0725.) Dr. Zaidi concluded that she had mild to moderate "fibromyalgia-like syndrome." The physical examination did not reveal any neurological defects or limitations in physical activity, except those caused by "complaints of pain."Id.
Dr. Zaidi recommended that Shestina could return to "sedentary light-duty type of work" with more aggressive treatment of her fibromyalgia, "namely physical exercise, change of lifestyle, as well as trigger point injections as needed in the painful trigger areas, and appropriate pain medication that can improve her activity." (AR-0199, AR-0726.) He noted that she may also need physical and message therapy, as well as "ongoing management of depression and any anxietyrelated problems that may arise from return to work." Id.
Shestina pursued therapy sessions with Ruth Wilson of the Center for Interpersonal Development from May 4, 2000, through Jan. 12, 2001. (Doc. 15, at ¶ 41; AR-0251-0267.)
On March 20, 2001, Hartford wrote to Dr. Zaidi to clarify whether he had determined that Shestina was capable of performing any level of work. Dr. Zaidi responded that "[s]he is capable of sedentary light work." (Doc. 15, at ¶ 42; AR-0732.)
Hartford contacted Dr. Calabrese, Ms. Wilson, and Dr. Eileen Stroh, on April 2, 2001, soliciting comments on Dr. Zaidi's conclusion that Shestina "may be capable of full sedentary to semi-sedentary work." These individuals were asked to note any areas of disagreement they had with Dr. Zaidi's report, as well as the report from Dr. Covington. (Doc. 15, at ¶ 43; AR-0213-AR-0215.)
Wilson responded that she was seeing Shestina as a psychotherapist, thus her records had "no relevance to evidence for her physical disability." She also pointed out that she was "not in a position, as a clinical social worker, to express an opinion about [Shestina's] physician's findings." (Doc. 15, at ¶ 48; AR-0159.)
Dr. Calabrese responded as follows:
I have had the opportunity to review the enclosed correspondence on the patient, Jo Ann Shestina. I have seen her on two occasions. Unfortunately, her 20-year history of both physical and emotional problems forebodes a poor prognosis for changing behavior. Nonetheless, I am in complete accord with the impressions of Dr. Covington and Dr. Shemin. When patients are limited by pain, fatigue, and emotional stress, it is doubtful whether they are able to comply with the employment recommendations of your independent medical examiners. Nonetheless, I have no major objections to such a trial.
(Doc. 15, at ¶ 44; AR-0193.)
D. Hartford's Denial of Long-Term Disability Benefits
Hartford subsequently consulted the "Dictionary of Occupational Titles," and determined that the requirements for the position of secretary involved "sedentary work, lifting up to ten pounds occasionally with frequent reaching, handling, fingering, and talking." (Doc. 15, at ¶ 45; AR-0195-AR-0196.)
Hartford wrote to Shestina on June 22, 2001, to advise her that her claim for continued LTD benefits under the Plan had been denied. She was also advised of her appeal rights under ERISA. The letter advised that LTD benefits are not payable beyond Apr. 15, 2001. (Doc. 15, at ¶ 46; AR-0714; AR-0184.)
Hartford stated that the decision to terminate LTD benefits was based "upon Policy language and the documents contained in your claim file, viewed as a whole," specifically including the following:
(1) Employer's Statement completed by Darlene Gaewsky on 1/7/97.
(2) Employee's Statement completed by you on 12/29/96.
(3) Attending Physician's Statement completed by Dr. Ali Askari on 1/2/97.
(4) Medical records from Dr. Askari from 2/19/96-4/5/99.
(5) Medical report (undated) from Erica Karlinsky, Ph.D.
(6) 3/18/98 review by Hartford's Behavioral Health Case Manager.
(7) Attending Physician's Statement completed by Dr. Askari on 8/25/97.
(8) Attending Physician's Statement completed by Dr. Askari on 9/11/98.
(9) Personal Profile Evaluation from you completed on 12/14/98.
(10) Physical Capacities Evaluation form completed by Dr. Askari on 21/21/98.
(11) Attending Physician's Statement completed by Dr. Askari on 2/9/99.
(12) Functional Capacities Evaluation performed on 11/20/97 conducted by David Edelstein, ORT/L.
(13) Results of activities check conducted during the period 10/20/99, 10/21/99, 10/22/99, 10/23/99, 1/15/00, 1/16/00, 1/17/00, 1/18/00.
(14) Cleveland Clinic Foundation Psychiatric Pain Management Evaluation dated 4/5/00 conducted by Edward Covington, M.D.
(15) Treatment records from the Cleveland Clinic Foundation 12/29/97-4/5/00.
(16) Claimant questionnaire completed by you on 11/8/99.
(17) Physical Capacities Evaluation form (undated) completed by Dr. Askari at the time of your 10/18/99 office visit.
(18) Medical report dated 1/24/00 from Dr. Calabrese at The Cleveland Clinic Foundation.
(19) The results of your interview with Hartford Life Investigator, John Snow, on 4/17/00.
(20) Treatment records from Ruth Wilson, L.C.S.W. from 5/4/00-1/12/01.
(21) Results of an activities check conducted 8/3/00.
(22) Results of an activities check conducted 1/22/01.
(23) Independent Medical Evaluation (IME) report dated 1/22/01 and Physical Capacities Evaluation form completed by Dr. Syed J. Zaidi.
(24) 2/8/01 addendum to the IME report from Dr. Zaidi.
(25) 3/20/01 response from Dr. Zaidi clarifying the results of the IME.
(26) 4/2/01 letters directed to Ruth Wilson, Dr. Leonard Calabrese, and Eileen Stroh with each of the green Certified return receipt.
(27) 4/12/01 response from Dr. Calabrese.
(28) Job Description for Marketing Secretary as described by the Dictionary of Occupational Titles (DOT).
(29) Medical and Work History Questionnaire
(AR-0715-AR-0716; AR-0185-AR-0186.)
The letter summarized the contents of the materials relied on, and noted that Dr. Zaidi concluded that Shestina can return to sedentary to light work as of April 15, 2001. (AR-0720; AR-0190.) It was also noted that Dr. Calabrese was provided with an opportunity to review the case, and represents that he stated that, although he had only seen Shestina on two occasions, "he does not have any major objections to the physical abilities as outlined by Dr. Zaidi where he concludes you are capable of performing sedentary to light work as of 4/15/01." (AR-0721; AR-0191.)
Hartford summarized their decision as follows:
In reviewing your claim, The Hartford considered your claim file as a whole for the purposes of determining your entitlement to Long Term Disability benefits. The Policy provides that The Hartford will pay benefits only if you are prevented by Disability from performing the essential duties of your own occupation or any occupation for which you are qualified by education, training, or experience. The weight of the medical evidence in your claim file as well as the information gathered regarding your activities supports your ability to perform the essential duties of your own occupation as a Marketing Secretary. Accordingly, no benefits are due to you beyond 4/15/01 under the terms of the Policy. We will not be requesting reimbursement from you for the benefits already paid for the period 4/16-6/30/01.
(AR-0721; AR-0191.)
E. Shestina's appeal
Counsel for Shestina responded on July 11, 2001, stating that "Ms. Shestina denies that her status has changed such that she is no longer to be considered disabled. She hereby demands that disability payments continue." (Doc. 15, at ¶ 47; AR-0181.) Shestina formally appealed the denial of benefits on Oct. 5, 2001. (Doc. 15, at ¶ 49; AR-0165-0168.)
Hartford referred the claim to Dr. Gary Gordon on University Disability Consortium for review. Dr. Gordon spoke with Dr. Calabrese on Dec. 28, 2001. Dr. Gordon characterized the conversation as follows:
. . . your diagnosis of Jo Ann Shestina is that she has chronic pain syndrome, chronic fatigue syndrome and fibromyalgia. . . . she has had approximately 20 years of complaints of fatigue and depression. You thought she might be dysthymic. You had referred her to a psychiatrist at the Cleveland Clinic. The question was whether or not she had a major depressive disorder. You did not feel that she could be rehabilitated, that she was emotionally disabled. You feel her pain is real and lies in the affective spectrum of illness. You felt her prognosis was poor based on the fact that she has had these symptoms for so many years and that the longer one has these symptoms, the less likely it is that they can be rehabilitated.
(Doc. 15, at ¶ 52; AR-0152.) "Dysthymic disorder" is defined as:
a mood disorder characterized by depressed feeling (sad, blue, low), a loss of interest or pleasure in one's usual activities, and by at least some of the following: altered appetite, disturbed sleep patterns, lack of energy, low self esteem, poor concentration or decision-making skills, and feelings of hopelessness. Symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depressive disorder.Dorland's medical dictionary at 548. An "affective" disorder is a mood disorder. Id. at 547. See, e.g., Ramirez v. Shalala, 8 F.3d 1449, 1454 (9th Cir. 1993) (dysthymia is affective disorder).
Dr. Gordon provided a "Medical Records Review" to Hartford on Dec. 28, 2001. Dr. Gordon agreed with Dr. Calabrese that
. . . the psychiatric issues are the major stumbling block. Clearly, in reviewing the tapes of video observation, Ms. Shestina is capable of performing duties that would be involved in secretarial work. She is seen throwing a Frisbee to her dog, as well as walking without difficulty and walking on a treadmill as was recommended to her by Dr. Calabrese.
(Doc. 15, at ¶ 52; AR-0143.) Dr. Gordon stated that he "would certainly have to defer whatever psychiatric evaluation has been obtained . . . as regards her ability to function." Dr. Gordon stated that he did "not see her Sjogren's syndrome, if she truly has it, as being a limiting factor." Id.
On Jan. 31, 2002, Hartford notified Shestina's counsel that:
An initial medical review concluded Ms. Shestina may be disabled from a psychological condition. This analysis was provided by our medical director in discussion with Dr. Calabrese. In light of the lack of current clinical psychological evidence, we have elected to have Ms. Shestina examined by an independent physician who specializes in this area.
(Doc. 15, at ¶ 54; AR-0137.)
Shestina appeared at MetroHealth Medical Center for a neuropsychological evaluation on March 4, 2002. The evaluation was performed by Thomas Swales, Ph.D., director of the Psychological Assessment Center. ((Doc. 15, at ¶ 55; AR-0090-0096.) Dr. Swales' "impression" was that
. . . Shestina meets criteria for a Bipolar I Disorder, most recent episode depressed, moderate (DSM-IV 296.52), compounded by a Pain disorder Associated with Depression and Fibromyalgia (DSM-IV 307.81), Axis — II Borderline/Dependent Personality Traits, Axis III — fibromyalgia, Axis IV — extended disability leave from work for 5 years, Axis V — GAF current = 55.
(Doc. 33, at ¶ 13; doc. 15, at ¶ 58; AR-0094-0095.) He stated that every physician who had evaluated her had recommended psychiatric evaluation and treatment, but "[u]nfortunately, she has not arranged for this." (AR-0095.) He noted that "she was the victim of sexual abuse by a relative, which may have predisposed her to comorbid personality disorder," and that she had been diagnosed with fibromyalgia, Sjogren's syndrome, and arthritis. (Doc. 33, at ¶ 14; AR-0095.)
In summary, Dr. Swales stated:
(1) The results of her neuropsychological testing does not reveal any significant limitations which would interfere with her ability to work in any position, in any capacity.
(2) Ms. Shestina displayed the functional capacity to perform in any occupation, based upon her test performance, and behavior during testing.
(3) Recommendations for psychological or psychiatric treatment would include (a) psychiatric evaluation and treatment of her bipolar disorder . . . and (c) vocation rehabilitation, including work-hardening, to assist her in a return to work.
(4) Specific behavioral changes necessary for her to return to work would primarily be pre-emptive, to avoid deterioration in her depression, worsening of somatization, or any increase in anxiety.
(5) A vocational rehabilitation counselor could make specific suggestions for a return to work. . . .
(6) The date for a return to work is estimated to be in three months. Currently she is vacationing in Florida.
In psychiatry, "somatization" means "the conversion of mental experiences or states into bodily symptoms." Dorland's medical dictionary at 1721.
(7) A part-time schedule at first could be helpful.
(8) To enhance her return to work, it is obvious that psychiatric evaluation and treatment is key. Also, it would be important to involve her family, to marshal their support for her independence and return to work.
(Doc. 15, at ¶ 60; AR-0095-0096.) Dr. Swales also noted that:
. . . it has been years since Ms. Shestina was gainfully employed, and the extended length of her time off work is a significant barrier to her motivation for re-employment. She has assumed the role of an individual who is not able to work, despite evidence of her adequate functioning at this time.
(Doc. 15, at ¶ 61; AR-0096.)
On April 9, 2002, Hartford notified Shestina, through her counsel, that Hartford had completed their appeal review of her claim, and had determined that Shestina was not disabled as defined in the policy. Hartford said that Dr. Gordon and Dr. Calabrese concluded that "Shestina's medical problems are in the affective spectrum of illness." On the issue of her ability to function, Dr. Calabrese had stated that he would defer to a psychiatric evaluation. Thus, Hartford obtained an independent neuropsychological examination. This examination concluded that "while Ms. Shestina has an extensive psychiatric history and has assumed the role of an individual who is not able to work, she does not have any cognitive or psychiatric limitations that would prevent her from working in any capacity." Hartford concluded that she is not disabled, and benefits are not payable. (Doc. 15, at ¶ 62; AR-0100-0101.)
II. STANDARD OF REVIEW
Shestina argues that this court should examine the denial of benefits under a de novo standard of review. Shestina states that the "arbitrary and capricious" standard of review should be used only where there is a "clear grant of discretion to the plan administrator" to determine eligibility for benefits. (Doc. 19, at 3, quoting Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991)). Shestina points out that "absolutely nowhere in the plan is there any `clear grant of discretion' to the plan administrator." Id. at 20.
Hartford, on the other hand, points out that where a benefit plan "accords discretionary authority to the plan administrator or fiduciary to determine eligibility for benefits," that determination is subject to the "arbitrary and capricious" standard of review. (Doc. 16, at 9.) Hartford cites the controlling law more accurately, with the inclusion of the term "fiduciary."
The Sixth Circuit has plainly stated that, where "the plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan," the court reviews the administrator's decision to deny benefits using "the highly deferential arbitrary and capricious standard of review." Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 527 (6th Cir. 2003) (emphasis added) (quotingKillian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998)). See also Carr v. Reliance Standard Life Ins. Co., 363 F.3d 604, 606 (6th Cir. 2004); Hockin v. Kmart Corp. Long Term Disability Income Plan, No. 03-1263, 2004 WL 1687943, at *1 (6th Cir. July 27, 2004) (same).
Under ERISA, the administrator is "the person specifically so designated by the terms of the instrument under which the plan is operated." 29 U.S.C. § 1002(16)(A)(i). The designated Plan Administrator under the policy is PMC. (Doc. 17, POL 0048-0049.) The Plan does not appear to vest any discretionary authority in PMC. However, under the Plan's provisions, "Hartford has full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy." (POL 0047, 0078.)
When an insurance company administers claims for an employee benefit plan, and has authority to grant or deny claims, the insurance company is a "fiduciary" for ERISA purposes, under 29 U.S.C. § 1002(21)(A)(iii). Chiera v. John Hancock Mutual Life Ins. Co., No. 99-3613, 2001 WL 111585, at *4 (6th Cir. Feb. 2, 2001) (citing Libbey-Owens-Ford Co. v. Blue Cross Blue Shield Mut. of Ohio, 982 F.2d 1031, 1035 (6th Cir.), cert. denied, 510 U.S. 819 (1993)); Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415, 418 (6th Cir. 1997). Under the provisions of the Plan, Hartford must be given written notice of a claim for disability, along with proof of loss. (POL 0019, 0044.) Hartford will then furnish a written notification of the claim decision, and if the claim is denied, the claimant may appeal the denial to Hartford. (POL 0046-0047, 0051-0052.)
Thus, Hartford is a fiduciary under the Plan, and under the provisions of the Plan, has discretionary authority to determine eligibility for benefits or to construe plan terms. This court will therefore apply the deferential "arbitrary and capricious" standard of review.
Under the "arbitrary and capricious" standard, the court will uphold a benefit determination if it is "rational in light of the plan's provisions." Darland, 317 F.3d at 527 (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996)). "When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious." Id. (quoting Davis v. Kentucky Finance Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989), cert. denied, 495 U.S. 905 (1990)). The court must determine "not which side we believe is right, but whether the insurer had substantial evidentiary grounds for a reasonable decision in its favor." Gannon v. Metropolitan Life Ins. Co., 360 F.3d 211, 216 (1st Cir. 2004).
III. SHESTINA'S ARGUMENTS
Through her complaint, Shestina seeks to recover benefits allegedly due to her under the Plan. (Doc. 1, at ¶ 35.) She advances several arguments in support of her claim. (Doc. 19, 26.)
A. Does record viewed "as a whole" support finding of disability?
Shestina contends Hartford's decision to deny continued benefits is arbitrary and capricious because the decision was based on information cited in the denial letter of June 22, 2001, viewed "as a whole," and "many of the documents . . . support the fact that the Plaintiff was totally disabled." Shestina argues that, to base the decision on those documents "as a whole" constitutes clear error "because some of the documents, if relied on in any way, supported a different conclusion that the one reached by Defendant." (Doc. 19, at 6-7.)
Shestina apparently implies that for a conclusion to be based on information viewed "as a whole," that conclusion must be unambiguously supported by every single document. In fact, the record may contain contradictory medical opinions, so long as the determination that Shestina was capable of performing sedentary work was rationally supported by record evidence. See, e.g., Gannon, 360 F.3d at 216; Hurse v. Hartford Life Acc. Ins. Co., No. 02-5496, 2003 WL 22233532, at *7 (6th Cir. Sept. 26, 2003). As outlined above, there was ample evidence that Shestina was capable of sedentary work such that she might not be considered disabled. See, e.g., AR-0199, AR-0726, AR-0732, AR-0095-0096.
B. Is Social Security disability determination dispositive?
Shestina also protests that Hartford "made no mention of the Social Security [disability] determination in the items that Defendant took into consideration `as a whole.'" She contends that the SSA finding that she is "totally disabled" should be "dispositive on this lawsuit." Shestina urges that the SSA's decision should be considered as a factor in determining whether the benefits denial was arbitrary and capricious. (Doc. 19, at 7-8, citing Darland, 317 F.3d at 529-530; doc. 26, at 2-3.)
Hartford responds they are not bound by the SSA decision. (Doc. 25, at 5-6.) They point out that:
. . . where all that is submitted to the claims administrator is a decision by the SSA, there is no basis to evaluate the evidence reviewed and considered that formed the basis for that decision. (AR 0778) The evidence considered by the SSA was not made available to Hartford. Hartford made its decision on the basis of the evidence presented to it. Conversely, the evidence considered by Hartford may not have been available to the SSA. If the SSA reviewed the medical review report of Dr. Gordon, Dr. Calabrese's opinion, and the reports of the independent medical and psychiatric examinations, it may have reached a different decision. Moreover, the SSA is bound to defer to the opinions of treating physicians, while ERISA claims administrators . . . are not. See Black Decker Disability Plan v. Nord, [538 U.S. 822,]123 S.Ct. 1965 (2003). Accordingly, the mere notice of an SSA decision granting benefits does not present compelling evidence in favor of disability under the plan terms at issue in this case.
(Doc. 25, at 6.)
Several recent Sixth Circuit decisions support Hartford's argument. In Hurse, 2003 WL 22233532, at *5, the claimant argued that the insurer's decision that he was not disabled was arbitrary and capricious in light of the SSA's contrary decision. Distinguishing Darland, which was based on a estoppel theory, the court noted that "there is no evidence in the record that Hartford requested that [the claimant] apply for his Social Security benefits." Id. at *6. Here as well, Shestina makes no assertion that her application for SSA benefits was urged or aided by Hartford.
The Hurse court also observed that "it would be incongruous to hold that, although the `treating physician rule' is not applicable in ERISA cases, the ERISA plan administrator is bound by the disability determination of the SSA, which is required to apply that rule." Id.
In addition, the court remarked that the Supreme Court inBlack Decker "stressed the differences between the Social Security disability program and ERISA benefit plans." Id. The court said that "there is no evidence in the record before us here that the terms of the group policy administered by Hartford were intended to be interpreted according to the federal criteria governing SSA disability determinations," and the plan gave Hartford the discretion to interpret the terms of that policy.Id. The same is true of the case before this court.
In Hurse, the court stated:
The fact that the evidence might also support a contrary conclusion is not sufficient to render the plan administrator's determination arbitrary and capricious. The medical evidence in this case was clearly susceptible to opposite conclusions as to the nature of Hurse's disability. Measuring that evidence against the SSA's uniform criteria, the ALJ came to one conclusion. Measuring that evidence against the terms of the ERISA plan, Hartford came to a different conclusion. Hartford's conclusion is reasonable and is based on the evidence, and the fact that it differs from that of the ALJ does not make it arbitrary and capricious.Id. at *7.
The court in Whitaker v. Hartford Life Acc. Ins. Co., 404 F.3d 947 (6th Cir. 2005), also rejected the contention that the insurer should have accorded greater deference to the SSA's disability determination. The court held that "an ERISA plan administrator is not bound by an SSA disability determination when reviewing a claim for benefits under an ERISA plan."Whitaker, 404 F.3d at 949 (citing Hurse). See also Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir. 1994); Cox v. Mid-America Dairymen, Inc., 965 F.2d 569, 572-573 (8th Cir. 1992).
C. Was consideration of psychotherapist treatment records improper?
Shestina argues that Hartford improperly considered treatment records from her psychotherapist, Ruth Wilson, and that "basing their denial in some part on those records was both arbitrary and capricious." (Doc. 19, at 8-9.) However, although Wilson's records were part of the case file, it is unlikely that Hartford relied on them to any great extent in their benefits determination. In their denial letter, Hartford simply notes that "the majority of your complaints [to Wilson] focused on your dissatisfaction with Hartford Life's investigation of your claim . . ." (AR-0189.) During the appeal review, additional attention was focused on Shestina's psychological condition. Again, there is no indication that Wilson's records had any impact. (Doc. 25, at 4; AR-0100.)
There is scant indication that Wilson's treatment records had any significant impact on the benefits decision. In any event, Shestina does not provide any authority for the contention that a psychotherapist's records cannot be considered to any extent in reviewing a claim for disability.
D. Other considerations
Shestina asserts that Hartford's finding was against the weight of the evidence. (Doc. 19, at 9 — 11.) However, the court does not weigh the evidence, as might occur on de novo review. Rather, the court applies the highly deferential "arbitrary and capricious" standard of review: "When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious." Darland, 317 F.3d at 527 (quoting Davis, 887 F.2d at 693).
Shestina also states that Dr. Gordon's conclusions should be accorded little deference because he never met with Shestina, but merely examined her medical records. (Doc. 19, at 10.) This court's role is not "to evaluate how much weight an insurer should have accorded the opinion of an independent medical consultant relative to the opinions of a claimant's own physicians." Gannon, 360 F.3d at 216. In Gannon, the First Circuit noted it had recently "upheld an insurer's termination of disability benefits in which the supporting medical evidence consisted solely of an independent medical consultant's review of the claimant's file, which included records from the claimant's physicians." Id. (citing Matias-Correa v. Pfizer, Inc., 345 F.3d 7 (1st Cir. 2003)). See also Donato, 19 F.3d at 380 (permissible to choose between position of insurer's independent medical consultant and position of claimant's physicians);Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 47 (3rd Cir. 1993) (not arbitrary and capricious to terminate disability benefits based on single independent examination).
Shestina cites Smith v. Aetna U.S. Healthcare, 312 F.Supp.2d 942, 951 (S.D. Ohio 2004), in support. However, Smith was decided under a de novo review, thus is inapposite here.
Shestina states that she is "indeed very ill," and that "her own doctors have stated that [she] cannot go back to work." (Doc. 19, at 12.) Shestina does not support the assertion that her doctors have determined her to be totally disabled, to the extent that she is unable to return to work, with any citation to the record. See generally doc. 33.
The conclusions of the independent medical evaluation by Dr. Zaidi were that Shestina could return to sedentary light-duty work, with more aggressive treatment of her fibromyalgia. (AR-0199, AR-0726, AR-0732.) Although Dr. Calabrese expressed some doubt as to whether Shestina could successfully return to work "limited by pain, fatigue, and emotional stress," (doc. 19, at 10, citing AR-0193), Dr. Calabrese stated in the next sentence, "I have no major objections to such a trial [return to work]." As a result of his neuropsychological evaluation, Dr. Swales stated there were no "significant limitations which would interfere with her ability to work in any position, in any capacity." (AR-0095-0096.)
IV. SUPPORT FOR HARTFORD'S BENEFITS DETERMINATION
Hartford argues that its decision to deny continued benefits was reasonable in light of the medical evidence in the administrative record. (Doc. 16, at 10-15.) Hartford summarizes the evidence in support of its determination as follows:
The subject policy provides that Plaintiff must submit "satisfactory proof" that [her] condition was of the severity to render her incapable of "performing the essential duties of [her] occupation." (POL-0019, 0061-62.) Plaintiff's occupation was sedentary in nature. Independent medical examination demonstrated the Plaintiff could physically return to work with her conditions. The treating immunologist felt Plaintiff's problems were psychological and indicated that she could physically return to work. Physician review of the claim file further supported the conclusions of the independent medical examiner and treating physician that Plaintiff's physical condition did not render her disabled. Independent neuropsychological examination further demonstrated Plaintiff's mental condition did not render her unable to perform her occupation. Plaintiff's treating psychologist felt her receptivity to treatment for her alleged psychological conditions was questionable. Surveillance over several days provided further support for Hartford's conclusions. The medical records show Plaintiff's condition had improved. An FCE showed that Plaintiff was exaggerating her pain, and she was able to vacation in Florida and Las Vegas. Thus, the evidence in the administrative record in this case certainly reflects "a reasoned explanation" for Hartford's conclusion that Plaintiff was capable of performing her regular occupation as a secretary.
(Doc. 16, at 15.) See also doc. 25, at 4-5.
V. SUMMARY
Hartford has amply demonstrated "a reasoned explanation, based on the evidence" for its decision to deny continued long-term disability benefits to Shestina. Darland, 317 F.3d at 527. The court finds that Hartford had substantial evidentiary grounds for its reasonable decision. Gannon, 360 F.3d at 216. Thus, Hartford's decision is not "arbitrary or capricious."
RECOMMENDATION
It is recommended that the defendant's motion (doc. 16) for judgment be granted, and the plaintiff's motion (doc. 19) be denied.