Summary
In White, the parties agreed that discretionary authority was granted to the plan administrator by a policy that read, "[i]n making any benefits determination under this policy, the Company shall have the discretionary authority both to determine an employee's eligibility for benefits and to construe the terms of this policy."
Summary of this case from Sivalingam v. Unum Provident CorporationOpinion
Civil Action No. 03-5845 (JCL).
July 18, 2005
MEMORANDUM AND ORDER
This Employee Retirement Income Security Act ("ERISA") action concerns the denial by Defendant Unum Life Insurance Company of America ("Unum Life") of Plaintiff Wanda White's claim for disability and waiver of premium benefits under an employee welfare benefit plan. White contends that she has been totally disabled from her occupation as a substance abuse counselor since February 2001, due to severe fatigue, memory loss, and cognitive impairments attributable to a seizure disorder and HIV infection. Unum Life denied White's claim due to a lack of objective medical evidence. Presently before the Court are Cross-Motions for summary judgment concerning Unum Life's coverage obligations. For the reasons stated below, both Motions will be denied.
FACTS
Unum Life issued policies of group disability and life and accidental death and dismemberment insurance, bearing policy nos. 391858-001 and 391858-002, which funded an ERISA Plan established and maintained by Integrity, Inc. ("Integrity"). Unum Life is a fiduciary of the ERISA Plan with respect to claim administration.White was employed by Integrity starting November 7, 1994. She was covered for disability benefits under a Policy ("Policy") issued by Unum Life as of October 23, 1996. She earned wages of $494.22 per week, for a monthly income of $2,141.53. White last worked on February 8, 2001. Her wages ceased as of February 9, 2001, and she has not worked in any capacity since that time.
White sought temporary disability benefits from the State of New Jersey on April 6, 2001, with a disability onset of February 9, 2001. She received a base weekly amount of $103.00, with a maximum benefit amount of $5,114.00. White also filed an application for disability benefits with the Social Security Administration ("SSA"). She received an Award Notice dated November 25, 2001, finding her disabled as of February 8, 2001.
On or around August 14, 2001, White filed for Long Term Disability benefits under the Policy. She claimed disability due to seizures, memory loss, chronic fatigue, imbalance, and being HIV+. White had been a senior substance abuse counselor at the time. Her duties included counseling clients, sending monthly reports to a supervising agency, facilitating groups, documenting progress, intake, and urine monitoring.
Group Disability Insurance
Under the terms of the Policy and ERISA Plan, an employee participant was entitled to receive 66 2/3% of her basic monthly earnings, not to exceed a maximum monthly benefit of $5,000. To be eligible for the Plan, an employee was required to work a minimum of thirty-five hours per week.
The Plan provided for the payment of monthly benefits to a participant who provides proof that he/she is unable to perform each of the material duties of his/her occupation during the first twenty-four months of benefits, and thereafter each material duty of any gainful occupation for which he/she is reasonably fitted by training, education, and experience. The Policy of group disability insurance that funded the Plan defines "disability" and "disabled," in relevant part, as follows:
1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted, taking into consideration training, education or experience, as well as prior earnings.
Section IV of the Policy provides:
DISABILITY
When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued:
1. disability; and
2. regular attendance of a physician.
The Plan provides that the "monthly benefit will not . . . be paid for longer than the maximum benefit period."
Section VI of Unum Life's policy contains the following relevant provisions:
NOTICE AND PROOF OF CLAIM
1. Notice
a. Written notice of claim must be given to the Company within 30 days of the date disability starts, if that is possible. If that is not possible, the Company must be notified as soon as it is reasonably possible to do so.
b. When the Company has the written notice of claim, the Company will send the insured its claim forms. If the forms are not received within 15 days after written notice of claim is sent, the insured can send the Company written proof of claim without waiting for the form.
2. Proof
a. Proof of claim must be given to the Company. This must be done no later than 90 days after the end of the elimination period.
b. If it is not possible to give proof within these time limits, it must be given as soon as reasonably possible.
c. Proof of continued disability and regular attendance of a physician must be given to the Company within 30 days of the request for the proof.
d. The proof must cover:
i. the date disability started;
ii. the cause of disability; and
iii. how serious the disability is.
TIME OF PAYMENT OF CLAIMS
When the Company receives proof of claim, benefits payable under this policy will be paid monthly during any period for which the Company is liable. At the end of the Company's period of liability, any balance remaining will be paid promptly upon receipt of such proof.
The Plan also contains certain exclusions and limitations concerning pre-existing conditions and mental illness.
The Court does not understand Unum Life to have denied White benefits on the basis of the pre-existing condition exclusion or the mental illness limitation.
Section V of the group policy sets forth certain termination provisions that govern when a participant will cease to be insured under the Plan. The Plan provides that an employee "will cease to be insured on"
the date employment terminates. Cessation of active employment will be deemed termination of employment, except:
a. the insurance will be continued for a disabled employee during:
i. the elimination period; and
ii. while benefits are being paid.
The ERISA plan also contains a 180-day "elimination period," which is defined as:
"Elimination period" means a period of consecutive days of disability for which no benefit is payable. The elimination period is shown in the policy specifications and begins on the first day of disability.
Note: If disability stops during the elimination period for any 30 (or less) days, then the disability will be treated as continuous. But days that the insured is not disabled will not count toward the elimination period.
The Policy Specifications section of the Policy states:
In making any benefits determination under this policy, the Company shall have the discretionary authority both to determine an employee's eligibility for benefits and to construe the terms of this policy.
Group Life and Accidental Death and Dismemberment Insurance
Unum Life also issued a policy of group life and accidental death and dismemberment insurance to Integrity. This policy provided a waiver of premium benefit for life insurance if a participant was totally disabled.
Like the disability policy, this policy contained a provision that expressly vested Unum Life with discretionary authority to render benefit determinations and to interpret the terms of the Plan.
White's Claim for Benefits
As noted, White submitted a claim for benefits in August 2001. Unum Life conducted a telephone interview as part of its investigation, during which White indicated that she had experienced seizures two to three times per month over the past two years. She further indicated that her memory loss was a "big" problem and was getting worse. Also discussed during the interview was White's restriction as to driving.
White's claim for benefits was initially referred to Nurse Brackett, a registered nurse employed by Unum Life. White's application for disability benefits listed her treating doctors as Drs. William DiGiacomo (primary care physician), Eric B. Geller (neurologist), and Frederick Weisbrot (neurologist). The question presented was whether "available medicals support claimed impairment?" The medicals reviewed consisted of Dr. DiGiacomo's statement of August 7, 2001, Dr. Geller's report dated June 6, 2001, an MRI of the brain on June 18, 2001, and an EEG-Video ("VEEG") monitoring report for the period from July 23, 2001 to July 27, 2001.
Dr. DiGiacomo documented that White carried a diagnosis of HIV+ and epilepsy. He also stated that White was unable to drive and experienced memory loss. He further noted that she had been hospitalized from July 23, 2001 to July 27, 2001 at St. Barnabas Hospital.
In his June 6, 2001 report, Dr. Geller stated that White was referred to him by Dr. Weisbrot for medically uncontrollable seizures. The seizures apparently began in her mid-twenties during a time that she used cocaine. The report went on to note that White's seizures persisted, despite the fact that she had been clean for eleven years. Dr. Geller described White's seizure activity, noted that she was HIV+, listed her medications, and documented her complaints of fatigue, memory loss, and balance problems. He described her as alert and oriented, and as having good attention on saying the months of the year backwards. White's memory was 1 out of 4 after 5 minutes, even with a prompt. That means White could only remember one out of four words. Dr. Geller's medical impression was that of a seizure classification of a psychic aura progressing to a generalized motor seizure. The likely diagnosis, according to him, was partial epilepsy with uncertain etiology. He also noted a possibility of a small cerebral infarction due to White's history of cocaine use. Finally, he stated that her deteriorating memory suggested temporal lobe localization.
The MRI of the brain was normal. The EEG-Video monitoring revealed a single seizure occurring on July 24, 2001. The study was diagnostic of partial epilepsy arising from the left frontotemporal region, but the MRI showed no clear lesion in this region to explain why she had epilepsy. White's medications were adjusted and, due to her complaints of memory problems, she was referred to Dr. Cornelius Santachi for a neuropsychological evaluation. The neuropsychological evaluation never took place.
White alleges that she was unable to obtain a neuropsychological evaluation because it was not covered by her insurance. However, this allegation does not appear to be supported by competent evidence and thus cannot be considered part of the record at this time.
On September 24, 2001, Nurse Brackett found that White's medicals supported her claim for disability beginning July 2001, but that there was no medical data to support disability as of February 2001. Thereafter, on September 26, 2001, Unum Life prepared (but apparently did not send) a letter notifying White that her claim had been approved. (Pl.'s Appendix at 000020 ("We are pleased to inform you that your request for Long Term Disability (LTD) benefits has been approved.")).
Also on September 26, 2001, one of Unum Life's representatives notified White that the medicals supported disability from July 2001 forward, but that additional information was needed to support disability from February 2001 to the present. (Pl.'s Appendix at 00023 (Claim Documentation — Cathy Sabatine)). The Administrative Record reflects that Dr. DiGiacomo forwarded 28 pages of medical records to Unum Life on or about September 28, 2001, including office notes of January 23, 2001 that reflected a diagnosis of fatigue and an office note of August 2, 2001 that reflected a diagnosis of HIV and seizures.
Unum Life subsequently referred the claim for a medical review by Dr. Alan Neuren, who reviewed the medical evidence already reviewed by Nurse Brackett. Dr. Neuren also reviewed a report dated April 2, 2001 from Dr. DiGiacomo, stating: "Ms. White has been under our care for several years. She was diagnosed as having HIV. For this she has been under the care of an infectious disease specialist. She has developed severe personality changes, which is felt to be secondary to her HIV. She has also developed seizures secondary to HIV. At the present time, the patient is unable to work and we feel that she is totally disabled."
In his report dated October 10, 2001, Dr. Neuren concluded that White's seizure frequency of once or twice per month was not sufficient to interfere with her work and that her only restriction was driving. He also reported that Dr. Geller had found no difficulty with White's recall. That statement was made in error, as Dr. Geller himself stated in a July 3, 2002 letter that
Dr. Neuren must have misread my records in my initial evaluation of June 6, 2001. My mental status examination clearly states "Memory is 1/4 after five minutes, even with a prompt." This means that when given four words to remember she could only remember one of them, even when she was given a prompt or a cue. The fact that she was alert and oriented with good attention indicates that her memory problem is not due to confusion or delirium, but rather due to a problem specifically with memory.
(Pl.'s Appendix at 000104).
Dr. Geller continued:
Her video EEG monitoring study did document a seizure arising from the left temporal lobe. Temporal lobe epilepsy commonly causes memory impairment, and would explain her memory problem. In addition, she is HIV positive. Chronic HIV infection can affect the brain and cause an HIV-related dementia. I did not perform the detailed testing necessary to make this diagnosis. Neuropsychological testing would be able to clarify whether the problem is due to temporal lobe epilepsy or HIV dementia.
In summary, I feel that her memory problems are a true neurologic disorder. She is documented to have temporal lobe epilepsy on video EEG monitoring, which is irrefutable. Because of her seizure frequency, I would consider her disabled. Although Dr. Neuren feels she could perform her job, it is the rare employer who is willing to keep a patient with epilepsy on the job if they are having active seizures.
(Pl.'s Appendix at 000104).
On October 11, 2001, Unum Life sent White a letter informing her that she was not eligible for benefits because she did not have objective medical evidence to support disability as of February 8, 2001. The letter states, in relevant part:
We called you on September 26, 2001 and explained that although we have medical information from July 2001 forward, we needed objective medical information to support disability back to February, 2001. We explained that we would fax a request to Dr. DiGiacomo and Dr. Weisbrot for this information.
On September 27, 2001, Dr. Weisbrot faxed our request back an [sic] indicated that you had not been seen between January 1 and March 2001. Also on September 27, 2001 we received a fax from Dr. DiGiacomo's office including office treatment notes. In those notes, there is no mention of any treatment on or around February 8, 2001 by Dr. DiGiacomo.
We spoke with you on October 1, 2001 and explained that we still did not have any information to support disability. You indicated Dr. DiGiacomo would be the doctor who would certify your disability and that you had seen him the day that you stopped working. We spoke with Dr. DiGiacomo's office on the same day and they indicated that you had been seen on December 20, 2000 and on February 20, 2001 and not again until August 2001. The office visit note on February 20, 2001 indicates blood pressure 110/80; eyes, abdomen, extremities are within normal limits; lungs clear; neck supple and heart regular.
(Pl.'s Appendix at 000029).
Unum Life advised White as follows:
We have concluded that because you do not have objective medical evidence to support disability at the time that you stopped working, you are not eligible for benefits. Furthermore, our medical department reviewed your file in its entirety and indicated that Dr. Geller evaluated you on June 6, 2001 and found there was no evidence of cognitive impairment. You were noted to be alert and oriented and you had no difficulty with recall. A single seizure was documented during a four day monitoring period and lasted about 3 minutes. Dr. Geller's records further note that you were having seizures one [sic] or twice a month. Consequently the seizures are not occurring with a frequency or severity that would preclude you from performing your usual occupation. Your only expected restriction would be no driving.
(Pl.'s Appendix at 000029). Incredibly, the letter cites as one basis for denying White's claim Dr. Neuren's clearly erroneous statement that Dr. Geller identified no difficulty with recall.
The letter also instructed White that if she wished to challenge the disability determination, she must submit a written appeal within ninety days.
The record reflects that Unum Life subsequently received additional medical records, which included three certificates to return to work from Dr. DiGiacomo dated January 2001 and February 2001, a short narrative medical report from Dr. Geller dated October 19, 2001, and lab work from January 16, 2001. As to the certificates from Dr. DiGiacomo, the first is dated January 23, 2001. It states that White had been under DiGiacomo's care since January 18, 2001 and would be able to return to work on January 30, 2001. The second certificate is undated and states that White has been under his care since February 1, 2001 and is able to return to work on February 8, 2001. The third certificate is dated February 20, 2001 and states that White has been under his care since February 9, 2001 and is able to return to work on March 6, 2001. As noted, White never returned to any sort of employment after February 8, 2001. The report of Dr. Geller states:
Ms. White is a patient of mine who is being treated for partial epilepsy. This diagnosis was confirmed by a five day Video EEG monitoring test performed in July 2001 (see attached). She is being medically managed with Dilantin and Keppra. These medications in combination with the effects of the seizures, can severely decrease her short term memory. This may seriously effect [sic] her ability to perform her job as a counselor.
(Pl.'s Appendix at 000103).
On October 31, 2001, Nurse Brackett and Dr. Neuren prepared a clinic referral. Nurse Brackett concluded that the new medical evidence did not support an impairment at the date of disability, and Dr. Neuren concluded that
although there is a potential for the medication to affect concentration this is usually mild and transient. Assuming adequate treatment there should be no problems with short term memory as a consequence of seizures. Dr. Geller mentions this as a possibility but has not provided documentation that this is occurring. Claimant apparently having only nocturnal seizures.
Dr. Neuren later acknowledged that his statement that White is only having nocturnal seizures was "erroneous." (Pl.'s Appendix at 000044, Neuren Rep. dated January 17, 2002).
By letter dated October 31, 2001, Integrity informed White that her employment was terminated effective October 30, 2001 for failure to return from her leave of absence under Federal and State guidelines. The letter further stated:
On March 29, 2001, your leave was approved under the Family Medical Leave and Family Leave Act and [sic] was expected to return to work on June 22, 2001. On April 18, 2001 you submitted a doctor's note saying you cannot return to work until August 6, 2001. We accommodated you by extending your leave to that date.
On August 6, 2001 you stated you wanted to apply for Long Term Disability under UNUM. We accommodated you again and extended your leave through October 11, 2001 until we were notified by UNUM denying your disability claim.
(Pl.'s Appendix at 000032).
On November 5, 2001, Unum Life sent White a second denial letter stating that the medical evidence of record did not support impairment as of February 9, 2001.
White appealed the determination denying her claim by letter dated November 27, 2001. The record reflects that Unum Life's appeals specialist, Karen Connally, subsequently prepared a seven-page medical referral on this claim. She identified inconsistencies with Dr. Neuren's conclusions and the medical documentation of record:
OSP Review (Neuren) dated October 10, 2001 states Dr. Geller's evaluation did not support any cognitive impairment or memory problem and there was no difficulty with recall. My review of Dr. Geller's 6/6/01 MSE notation states "Memory is 1 out of 4 after 5 minutes even with a prompt." The next day she has an IME for SSA which states "She can remember two out of three words after two minutes." Finally, there is a psych evaluation of Dr. Figurelli in 7/01 which contains an MSE noting difficulties with immediate recall, delayed recall. Dr. Figurelli a 4/2/01 letter from Dr. DiGiacomo both are speculating regarding HIV dementia. I need some clarification in Dr. Neuren's opinion that there is not difficulty with recall/memory and these other notations.
(Pl.'s Appendix at 000037-38). Connally went on: "If we do not accept that there are memory problems, please refute by way of consistency and credibility of the documentation contained in the medical records. Clmt. also complains of fatigue, and there is mention of this throughout the office visits." (Id. at 000038).
Additional rounds of denial letters and supplements to the medical record followed. In total, Unum Life issued White five denial letters all concluding that additional medical records did not validate impairment at the February 9, 2001 date of disability. Additional reports reviewed, received, and/or ordered by Unum Life included those from Drs. DiGiacomo, Geller, M. Nader Moaven (infectious disease), Chang-Wuk Kang (psychiatrist), Weisbrot, Gerard A. Figurelli (psychologist), Maria Vastesaeger (general practitioner), and William J. Hall (infectious disease/internal medicine). The record was also supplemented with pharmacy records covering the period from January 1, 2000 to January 6, 2003.
A January 23, 2002 denial letter warrants comment. (Pl.'s Appendix at 000045). The letter stated that a review of all available medical records indicated no visit to a physician around the time White stopped working on February 9, 2001. But, as White points out, the letter failed to acknowledge that on January 23, 2001, White saw Dr. DiGiacomo complaining of fatigue. That letter is also silent on the July 15, 2001 report of Dr. Figurelli, a licensed psychologist, and states that "there is not testing that documents cognitive deficits or memory deficits," notwithstanding the fact that Drs. Figurelli and Geller did in fact document such deficits.
Drs. Vastesaeger, Figurelli, and Chang performed evaluations for the Social Security Administration. Dr. Hall reviewed White's medical record on behalf of Unum Life.
On May 30, 2002, White, with the assistance of counsel, requested that Unum Life re-open her claim in light of a finding of SSA that she was disabled. To qualify for Social Security Disability, White had to be found unable to do her former work as well as any other substantial gainful activity that existed in the national economy. Unum Life granted White's request and re-opened her claim in order to consider additional medical records.
The additional submissions included medical records of Dr. Moaven and lab reports from 1997 through September 2001, as well as a psychiatric review form dated November 16, 2001 and a July 3, 2002 report of Dr. Geller. Dr. Moaven's notes, one of which was dated January 20, 2001, noted complaints of fatigue and tiredness that pre-dated the alleged date of disability. The psychiatric form, prepared by Dr. Chang, stated, in part:
Additionally, office notes were received from Dr. Weisbrot for April 9, 2001, April 23, 2001, and May 1, 2001. The note of April 9, 2001 reflects White's complaints of poor memory, while the April 23rd note reflects that White continued to experience seizures. The May 1, 2001 note reflected problems with medications and a recent seizure.
This claimant shows substantial cognitive limitations on consultative exam. She has uncontrolled seizures with substantial post-ictal stages and sleep apnea. At consultative exam she shows very poor response to cognitive function in that 1 out of 4 objects recalled. Also she was noted to be poor in concentration, immediate recall. This causes significant interference in her adjustment. The impairment meets listing of 12.02. She is not capable of handling benefits. Onset of February 8, 2001 is appropriate.
(Pl.'s Appendix at 000237).
Another clinical referral from Unum Life stated:
The initial claim determination was made based on a February 9, 2001 date of disability. However, the claimant was out of work beginning in January 27, 2001, returned to work for 4 days and then was out of work 2/9/01. Considering the accum to the elimination period, 1/27/01 is the date of disability and benefits would begin 7/30/01 . . . A 9/24/01 RN review suggests that the medical was consistent with impairment beginning 7/01. The 7/6/01 psych eval by Dr. Figurelli provided a dx of Cognitive Disorder NOS possibly due to multiple etiologies, r/o dementia related to HIV and Seizure Disorder, adjustment disorder. The claimant's attorney had now provided office notes from Dr. Moaven (Infectious Disease) from 1997 — 9/11/01, which include an office visit from 1/20/01 just prior to the date of disability. The 1/20/01 office note documents the claimant c/o fatigue, feeling anxious, with off on headaches and muscle pain. . . . Please complete a full file review and comment on the following: 1. Is the medical evidence consistent with impairment related to memory problems/fatigue beginning 1/27/01 and ongoing? 2. Is there objective evidence to explain the etiology of her complaints? 3. If not, do the medical records consistently document the claimant's report of memory problems, chronic fatigue. 4. Is it reasonable that her memory problems and complaints of fatigue would provide restrictions and limitations to preclude a sedentary functional capacity as of 1/27/01 and ongoing?
(Pl.'s Appendix at 000055).
Nurse Pidgeon, a reviewing nurse, prepared a six-page summary review of the record, finding no restrictions that prevented White from returning to work as a result of either HIV infection or seizure disorder. Her analysis of data and restrictions did not discuss functional limitations or restrictions due to impairments related to memory loss or fatigue, despite the opinions of Drs. Geller and Figurelli stating that White had cognitive impairments and memory loss. She went on to address each of the questions posed, acknowledging that office notes consistently document ongoing complaints of fatigue and memory/concentration problem from 4/01 and that mental status exams indicated cognitive difficulties. The nurse also stated that documentation revealed more frequent seizures in early 2001, though not of a frequency or severity to be totally impairing. Finally, the nurse noted that although it is reasonable that fatigue and cognitive difficulties could be impairing at any functional level, there was no objective evidence available to explain the impact on White. It follows that impairment would be based on claimant's reported severity. However, the nurse also stated that the "[l]evel of treatment (i.e., freq of office visits, medication adjustment, admission for VEEG) are consistent with the severity of the symptoms reported." Frank A. Bellino, M.D., reviewed and concurred with Nurse Pidgeon's analysis and conclusions.
A December 10, 2002 denial letter stated that "[b]ased on the available information there was no indication of a change in Ms. White's seizure activity at the time she stopped working to support impairment." (Pl.'s Appendix at 000065). The denial highlighted a continuing lack of objective medical evidence to explain the severity of White's symptoms of fatigue and cognitive dysfunction and to document a loss of functional capacity at the time she ceased working. The letter also stated that because the criteria used to evaluate disability for the Social Security Administration "may differ" from the criteria for disability under the terms of the subject policy, the Social Security Disability decision did not direct a finding of impairment for purposes of Unum Life's policy. The letter again provided White with an opportunity to supplement the record with additional medical evidence in support of her claim.
White submitted additional reports, including a January 6, 2003 report of Dr. Weisbrot that recounted an epilepsy history and anticonvulsant side effects (impaired cognition and memory) from June 1998 to May 2001, and pharmacy records from two different pharmacies spanning the period from January 1, 2000 to January 6, 2003.
On February 19, 2003, Dr. William Hall conducted a final medical review of White's disability claim. Dr. Hall stated:
Medical records newly available since most recent UNUM OSP review and opinion 12-9-02 identify fatigue for which psychotropic medications are prescribed; recurring upper and lower respiratory symptoms evidently attributed to community acquired infection and treated with empiric oral antibiotics, decongestants and cough suppressants; uterine leiomyomata and ovarian cysts; an episode of reported abdominal pain and hematemesis; continuing antileptic therapy without reference to new or worsening symptoms or to treatment side effects after 5-01; and continued HAART without reference to new AIDS complications or treatment side effects.
Newly available medical records do not identify a worsening change in Wanda White's medical or neurological condition on or immediately prior to 1-27-01.
Thus, medical information newly received since UNUM OSP medical records review 12-9-02 does not change the OSP conclusions of that date.
(Pl.'s Appendix at 000075-76).
On February 26, 2003, Unum wrote to White's counsel concerning the newly submitted medical documentation and its review of the remainder of the administrative record:
Based on the review of this information, our on-site physician indicated that the new information did not identify a worsening or change in Ms. White's condition on or immediately prior to 1/27/01. The records document continuing antileptic therapy and ongoing treatment for AIDS without reference to new or worsening symptoms, complications or treatment side effects. As such, the new information does not change the determination previously communicated in our prior letters (copies enclosed).
In making a determination on Ms. White's claim, our medical staff extensively reviewed her entire file. We believe that a fair determination was made on her claims as governed by the provisions of the UnumProvident Long Term Disability and Life Insurance policies.
(Pl.'s Appendix at 000079-80).
STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If the evidence is such that a reasonable fact-finder could find in favor of the non-moving party, summary judgment should not be granted. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A litigant may discharge this burden by exposing "the absence of evidence to support the non-moving party's case." Id. at 325. In evaluating a summary judgment motion, a court must view all evidence in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587;Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976).
Once the moving party has made a properly supported motion for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 242. The substantive law determines which facts are material. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring it such that a reasonable jury could return a verdict in that party's favor. Id. at 249.
DISCUSSION
An ERISA-regulated employee benefit plan is subject to a standard of review dictated by the plan. In Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), the United States Supreme Court held that
a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.
Here, the parties agree that the subject Plan expressly confers discretion upon Unum Life to determine eligibility for benefits and to interpret Plan terms:
In making any benefits determination under this policy, the Company shall have the discretionary authority both to determine an employee's eligibility for benefits and to construe the terms of this policy.
"`[W]here discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.'" Firestone Tire Rubber Co., 489 U.S. at 111 (quoting RESTATEMENT SECOND OF TRUSTS § 187 (1959)). Thus, the arbitrary and capricious standard of review typically applies to claim denials in ERISA cases. "Under the arbitrary and capricious standard, an administrator's decision will only be overturned if it is `without reason, unsupported by substantial evidence or erroneous as a matter of law [and] the court is not free to substitute its own judgment for that of the defendants in determining eligibility for plan benefits.'" Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 387 (3d Cir. 2000) (quoting Pinto v. Reliance Std. Life Ins. Co., 156 F.3d 1225 (Table) (3d Cir. May 28, 1998)). Substantial evidence has been defined to mean evidence that permits reasonable minds to draw the same conclusion as the claim administrator. See Courson v. Bert Bell NFL Player Retirement Plan, 214 F.3d 136, 142 (3d Cir. 2000).
Where the insurer of an ERISA plan also acts as a claim administrator the potential for a structural conflict of interest calls for a "sliding scale approach, according varying degrees of deference depending on the apparent seriousness of the conflict."Pinto, 214 F.3d at 391. The amount of deference awarded to the claim administrator's decision depends on the facts of each case, including the sophistication of the parties, the information accessible to the parties, the exact financial arrangement between the insurer and the company, and the stability of the fiduciary. Id. at 392; see also Lasser v. Reliance Standard Life Insurance Company, 146 F. Supp. 2d 619, 623 (D.N.J. 2001) ("it is also clear that the beginning point of Pinto's sliding scale of heightened arbitrary and capricious review lies but a modest distance from the original standard, and that, absent other evidence of bias, the Court should engage in no more than a modicum of additional scrutiny"), aff'd, 344 F.3d 381 (3d Cir. 2003).
The Court is persuaded that a heightened arbitrary and capricious standard of review is appropriate in this case.Pinto held that "heightened scrutiny is required where an insurance company is both plan administrator and funder." 214 F.3d at 387. Here, the insurer of the ERISA plan also acted as the claims administrator and that situation creates an inherent conflict of interest. That said, a heightened arbitrary and capricious standard of review does not allow the Court to impose its own judgment on a determination of eligibility for benefits. Conducting a heightened review essentially requires the Court to be "deferential, but not absolutely deferential." Id. at 393.
The facts justifying a "high degree of skepticism" in Pinto were (1) the insurer reversed an initially favorable review without pointing to any medical evidence that would support such a change; (2) the insurer exercised selective attention in its use of medical evidence; and (3) the insurer rejected a staff workers' recommendations that were favorable to the insured.Pinto, 214 F.3d at 393-94. White points to similar facts here in that Unum Life inexplicably changed course from an initially favorable review; that Unum Life rejected medical evidence favorable to claimant with little or no explanation; and that Unum Life apparently disregarded staff members' observations concerning inconsistencies in the record. Those circumstances, under Pinto, warrant a review at the far end of the arbitrary and capricious range.
Unum Life maintains that the medical records submitted in support of White's claim for benefits fail to demonstrate (1) the existence of a disabling medical condition; (2) treatment for symptoms that White claimed to be disabling during the period she stated her disability commenced; (3) contradictory medical proofs concerning the cause of White's purported disability; and (4) the absence of any testing or treatment for memory loss, White's chief complaint. Specifically, Unum Life argues that White failed to submit proof that she became disabled on February 8, 2001, and the she remained totally disabled throughout the 180-day elimination period contained in the ERISA plan.
An overarching theme to Unum Life's repeated denials of White's claim is a lack of objective medical evidence to support her disability. The obvious corollary to that is much of the medical documentation, particularly that concerning White's memory loss, stems from her subjective complaints. Unum Life argues that it is not required to give any deference to treating physicians' opinions that are based chiefly on White's subjective complaints.See Maniatty v. UnumProvident Corp., 218 F. Supp. 2d 500, 504 (S.D.N.Y. 2002), aff'd, 2003 WL 21105390 (2d Cir. May 15, 2003) (noting that treating physicians diagnose patients based on acceptance of plaintiff's subjective complaints and such acceptance is not required of plan administrators); see also Black Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003) (stating no special deference must be afforded to participant's treating physician in determining whether participant is disabled).
While Unum Life is not bound by White's treating physicians' reports and, indeed, it need not accord any special weight to those reports, its wholesale rejection of all reports of White's treating physicians and those who examined White for the SSA is striking. "Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician. But . . . courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." Stratton v. E.I. DuPont De Nemours Co., 363 F.3d 250, 258 (3d Cir. 2004) (quoting Black Decker Disability Plan, 538 U.S. at 823-24)).
Unum Life rejected the results of the mental status exams of three clinicians, Drs. Geller, Figurelli, and Vastasaeger, that all documented cognitive disorder and memory loss. Also, Unum Life apparently rejected Dr. Chang's conclusions that the evidence of cognitive impairment and memory loss were sufficiently severe to warrant a finding that White met Social Security Impairment Listing of Organic Mental Disorder as of February 8, 2001, when she ceased working. While the SSA's decision is not binding upon Unum Life, the Court is not persuaded that, in this case, an independent doctors' findings in connection therewith have no evidential value whatsoever.
Courts that have concluded that Social Security determinations are not binding for purposes of ERISA plan determinations have reasoned that entitlement to social security disability benefits is based upon a different standard than that which applies to long-term disability benefits afforded under an ERISA Plan.See, e.g., Pokol v. E.I. duPont DeNemours Co., Inc., 963 F. Supp. 1361, 1380 (D.N.J. 1997); Scarinci v. Ciccia, 880 F. Supp. 359, 365 (E.D. Pa. 1995); Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 186 n. 2 (1st Cir. 1998). Some courts have gone so far as to conclude that a claim administrator can wholly disregard an award for Social Security disability benefits.Doyle, 144 F.3d at 186 n. 2 (holding that it was not arbitrary and capricious for a claim administrator to "ignore" a determination of total disability rendered by an administrative law judge). But the key to those decisions is that eligibility for benefits under the Social Security Act is often more lenient than ERISA plans. It follows that a finding of eligibility under the Social Security Act would not direct an eligibility determination under other plans. It is not clear that in this case the Social Security standard would be more lenient than the eligibility criteria under the Policy and, in any event, the reports of physicians who examined White for purposes of Social Security benefits have at least some evidential value.
An extremely deferential review of this record would likely lead to the conclusion that there is some credible evidence in the record on which Unum Life relied to conclude that White was not disabled for purposes of the Policy. Drs. Neuren and Hall provided reports supporting that conclusion and thus Unum Life's eligibility determination is not wholly without support or reason. But several inconsistencies surface when this Court looks to the process by which the determination was made. See Pinto, 214 F.3d at 393 ("[W]e look not only at the result — whether it is supported by reason — but at the process by which the result was achieved."). White submitted to Unum Life for its review medical records and reports from four treating doctors, including two neurologists (one of which specialized in treatment of seizure disorders), an infectious disease specialist, and a general practitioner. White also submitted the reports of two doctors who examined her in connection with her successful claim for Social Security disability benefits and the report of a physician consult who reviewed her medical records. The doctors' reports supported White's claim of disability, including results of three mental status exams, a report confirming partial complex epilepsy of the left temporal lobe which could be a causal factor for memory loss, and reports concerning side effects of anti-convulsant medications which could cause memory loss. The Court is left wondering why evidence strongly favoring coverage was overlooked or rejected, why blatant inconsistencies on the part of Unum Life's reviewing nurses and doctors were never corrected or acknowledged, and why Unum Life initially made a coverage determination favorable to White and then concluded otherwise. In addition, a January 15, 2002 medical referral by Unum Life highlights the fact that Dr. Neuren's evaluation clearly misinterpreted Dr. Geller's report and ignores, without comment, contrary conclusions expressed therein. This process signals at least the possibility of a decision-making process that is biased against the claimant.
The Court is mindful that the Policy was experience-rated at the time White filed her claim for benefits. See Pinto, 214 F.3d at 387 n. 6 (quoting Metropolitan Life Ins. Co. v. Potter, 992 F. Supp. 717, 730 (D.N.J. 1998) ("`[A] conflict may arguably be ameliorated where, as here, the plan is experience-rated . . . and thus the fiduciary's incentive to deny claims to increase profits is lessened, if not eliminated.'")).
A reasonable factfinder could conclude that Unum Life's decision to credit its doctors over White's treating physicians and other examining physicians in finding that she was not disabled did not result from a balanced determination. It follows that summary judgment dismissing the Complaint in its entirety is inappropriate. And, a genuine issue of material fact exists as to whether Unum Life acted arbitrarily and capriciously in denying White disability benefits also precludes summary judgment in White's favor. The same concerns apply to the alternate basis urged by Unum Life to grant its motion for summary judgment — that White has not factually refuted Unum Life's contention that no medical provider diagnosed her with a disabling medical condition during the 180-day elimination period in which she was required to remain disabled before benefits are payable under the subject Plan.
Accordingly, IT IS on this 18th day of July 2005,
ORDERED that the Motion of Defendant UnumProvident, f/k/a Unum Life Insurance Company of America for summary judgment dismissing Plaintiff Wanda White's Complaint in its entirety is denied; and it is further
ORDERED that the Cross-Motion of Plaintiff Wanda White for summary judgment awarding disability benefits is denied.