ROBERT W. SWEET, District Judge.
The plaintiff, Christine Thoma ("Thoma" or "Plaintiff"), has moved for judgment on the administrative record. The defendants, The Fox Long Term Disability Plan (the "Plan") and Life Insurance Company of North America ("LINA") (collectively, the "Defendants"), have also moved for judgment on the administrative record.
Based upon the facts and conclusions set forth below, the motion of Thoma is granted, and the motion of the Defendants is denied.
Thoma filed a claim under the Plan for Long Term Disability ("LTD") benefits due to chronic pain as a result of a history of multiple spinal surgeries. Thoma's incur date for her long term disability claim was October 10, 2013. Her application was approved for benefits that commenced on April 8, 2014. Thoma was paid LTD benefits until May 13, 2016. During that period of time, the disability definition changed from a "Regular Occupation" definition to an "any occupation" definition.
LINA advised Thoma that after reviewing her claim for continuing LTD benefits, LINA was unable to continue paying LTD benefits beyond May 13, 2016. LINA's initial adverse benefit determination resulted from an Independent Medical Examination ("IME") conducted by an orthopedic surgeon.
Thoma submitted an administrative appeal regarding LINA's initial adverse benefit determination. During her appeal, a Board Certified Specialist in Physical Medicine & Rehabilitation, Dr. Howard L. Grattan ("Dr. Grattan"), provided LINA a summary and review of Thoma's medical records. Dr. Grattan acknowledged that Thoma had functional impairments due to her prior history of spinal surgery but opined that she was not restricted from all work activity. LINA issued its final adverse benefit determination on January 27, 2017.
Thoma commenced the instant action on June 9, 2017 alleging violations of ERISA, 29 U.S.C. § 1001 et seq. The parties instituted motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and executed a written consent, pursuant to O'Hara v. Nat'l Union Fire Ins. Co., 642 F.3d 110 (2d Cir. 2011), to a bench trial on the parties' submissions with the District Court.
The motions were heard and marked fully submitted on June 20, 2018.
Although courts often treat motions for judgment on the administrative record as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the court may instead treat such a motion as requesting "a bench trial on the papers[,] with the District Court acting as the finder of fact." See O'Hara, 642 F.3d at 116 (citation and quotation marks omitted). In the latter scenario, "it must be clear that the parties consent to a bench trial on the parties' submissions" and the district court must "make explicit findings of fact and conclusions of law explaining the reasons for its decision." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003) (citing Fed. R. Civ. P. 52(a)). Here, the parties have executed a written consent to a bench trial on their submissions. See Horbatiuk Decl. Ex. C. The findings of fact and conclusions of law are accordingly set forth below.
The facts are set forth in Plaintiff's Rule 56.1 Statement of Facts, Defendants' Counter Rule 56.1 Statement of Facts, Defendants' Local Rule 56.1 Statement of Facts, and Plaintiff's Counter Rule 56.1 Statement of Facts. Unless otherwise indicated, Plaintiff has proven the facts set forth below by a preponderance of the evidence.
1. Thoma was employed as a Senior Producer by Fox News Channel and Fox Business Network ("Fox News") at the time she went out on disability. See Compl. ¶21; Ans. ¶21; AR930-31 [Thoma Resume]; AR327 [ACCLAIM Notes, "Employer Information" and "Job Title"].
2. Fox News is located in New York City, and Thoma was employed by Fox News in New York. See Compl. ¶6; Ans. ¶6; AR327 ["Employer Information"]; AR930-31 [Thoma Resume]; AR802 [04-24-2014 Notification of Ineligibility for N.J. State Temporary Disability Benefits]; AR874 [Fox News Senior Producer Job Description].
3. Fox Entertainment Group Inc. ("Fox") established and maintained a Group Long Term Disability Income Plan (the "LTD Plan") for its employees and the employees of its subsidiary and affiliate companies. See AR16 [Group Policy]; AR18-19 [Group Policy Classes of Participants]; AR22-15 [Group Policy Amendments, adding and/or revising Classes of Participants].
4. LINA is a corporation engaged in the business of issuing and administering policies of group long term disability insurance. See AR1386 [Regulatory Settlement Agreement, ¶1].
5. The LTD Plan's coverage is provided through a Group Policy No. VDT-980008 (the "Group Policy"), issued by LINA. See Compl. ¶13; Ans. ¶13; AR16 et seq. [Group Policy]; AR2-15 [Group Policy Amendments].
6. Thoma was a covered participant in the Plan. See Compl. ¶ 16; Ans. ¶ 16.
7. The LTD Plan is an "employee welfare benefit plan" subject to ERISA and is subject to enforcement under ERISA. See Compl. ¶10; Ans. ¶10.
8. Prior to the time Thoma went out on disability, she requested the operative LTD Plan documentation and was provided by Fox, the Plan administrator, with a copy of the Group Policy (AR16-48) and several of the amendments (AR2-16). See A. Christopher Wieber Decl. ("ACW Decl.") ¶¶ 1-2.
9. Subsequently, during the administration of her claim, Thoma made three separate requests for operative plan documents — including specific requests (on two occasions) for any documents which LINA believed conferred it discretionary authority. See ACW Decl. Ex. 3 at 3; AR1752. On each occasion, LINA provided only the Group Policy and several amendments. See ACW Decl. ¶¶ 3-6; AR941-47 [03-06-2015 Counsel AR Request Letter]; AR4612 [03-31-2015 LINA Response Letter]; ACW Decl. Ex. 3 [05-24-2016 Counsel AR Request Letter]; AR391-95 [06-30-2016 LINA AR Response Letter]; AR1749-57 [02-02-2017 Counsel AR Request Letter]; AR369 [LINA AR Response Letter].
10. At no time did either Fox News or LINA provide Thoma with the Appointment of Claim Fiduciary ("ACF," at AR1). See ACW Decl. ¶6.
11. The Group Policy nowhere contains language conferring discretionary authority on LINA, nor incorporating or endorsing the ACF. See AR16-48.
12. The Group Policy states that "[t]he entire contract will be made up of the Policy, the application of the Employer, a copy of which is attached to the Policy, and the applications, if any, of the Insureds." AR39. Moreover, it states that "[n]o change in the Policy will be valid until approved by an executive officer of the Insurance Company" and "[t]his approval must be endorsed on, or attached to, the Policy." See AR40.
13. The ACF is not designated as an amendment, endorsement, or attachment to the Group Policy, nor does it contain language attaching, annexing, or otherwise incorporating itself into the Group Policy. See AR1. The ACF contains precatory language that "authorizes the issuance of appropriate amendments to any Policies to reflect this appointment and the authority and responsibility granted to the Claim Fiduciary." Id.
14. Amendments to the Group Policy produced by LINA are marked as such. See AR2-16.
15. At the time LINA terminated Thoma's claim, the Group Policy provided that Thoma (as a Class 1 Participant, see AR275) is disabled if she is (1) "unable to perform the material duties of any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience" and (2) "unable to earn 60% or more of . . . her Indexed Earnings." See AR20.
16. At the time Thoma went out on disability, her monthly earnings were $13,906.85. See AR54, 495, 888, 2017. At the time her benefits were terminated, LINA calculated her indexed monthly earnings to be $14,004.20. See AR1056 [01-25-2016 LINA Transferable Skills Analysis]. LINA thus calculated the 60% "wage requirement" as $8,402.52/month, or $100,830.24/year. Id.
17. Shortly after graduating from Rutgers University with a B.A. in Communications, Thoma started work as a Page at NBC in 1987. See AR922 [10-14-2015 C. Thoma Letter]. She remained at NBC for 13 years and was promoted to news writer in 1988/89 (at age 24, the youngest to hold that position at that time), to segment producer, and, ultimately, to field producer (during the period between 1992 and 2000). Id. See also AR930-31 [C. Thoma Resume]; AR216-19 [06-26-2014 SSA Work History Report].
18. In May 2000, Thoma was hired by Fox News as a line producer and, within a few years, she was promoted to Senior Producer. Id. In that capacity, she ultimately oversaw "all editorial, production, and control room duties for daytime and primetime shows" and produced "breaking news, business news, crime stories, politics and general news coverage." Id. During her time at Fox, she was Senior Producer for such programs as Fox & Friends, On the Record with Greta Van Susteren, and Dayside with Linda Vester. Id. With several short interruptions (to work on a documentary in 2007, and to provide election coverage from October to November 2011), Thoma continued to work as a Senior Producer for Fox until her condition forced her to stop working in October 2013. Id.
19. Thoma expressed pride and a sense of accomplishment in her career:
AR922 [10-14-2015 C. Thoma Letter].
20. Thoma met her husband, Rich Thoma, at Fox News in 2001. See AR938 [10-12-2015 R. Thoma Letter]. Mr. Thoma attested that she "was in charge of (2) hours of programming on the weekend," "was very much a leader whom the talent and control room crew respected," and "she loved her job and was promoted several times over her Fox career." Id.
21. Dr. Vessa, who has treated Thoma for over 10 years, corroborated Thoma's dedication, writing that "I have no doubt from what she reported to me that she very much enjoyed her career," and observing that "[s]he and her husband did the same kind of work and I think that formed a bond between them." See AR1174-75 [10-12-2015 Dr. Vessa Letter].
22. Thoma was diagnosed as a child with severe scoliosis. See AR922, 1248, 1761, 1853, 1983. Since the age of 14 (in 1979), Thoma has undergone a series of major surgeries to her back. AR727, 1540, 1759, 1853, 1983, 2026.
23. The first surgery, intended to correct her scoliosis, was the implantation of Harrington Rod instrumentation and a fusion from T4 to L4. Id. This surgery was a major procedure, during which "[t]he surgeon lays bone grafts across the exposed surface of each vertebra" so that "[t]hese grafts will regenerate, grow into the bone, and fuse the vertebrae together." AR2153 et seq. In order "[t]o support the fusion of the vertebrae, the surgeon uses a steel rod, extending from the bottom to the top of the curve," which "is attached by hooks that are suspended from pegs inserted into the bone." Id. The "steel rod is jacked up and then locked into place to support the spine securely." Id. Recovery is prolonged and difficult, as "patients must wear a full body cast and lie in bed for 3-6 months until fusion is complete enough to stabilize the spine." Id. In Thoma's case, she was placed in a body cast for nine months. See AR1983-84.
24. While the Harrington Rod fusion procedure was considered "gold standard" treatment for scoliosis in 1979, by the mid-1980s it was being replaced by other instrumentation procedures — such as the Luque Rod, the Luque-Harrington Rod, the Cotrel-Dubousset, and the Texas Scottish-Rite Hospital procedures — because of the documented inadequacies and failures associated with the Harrington Rod fusion procedure. AR2165. See also AR590 et seq. In particular, the following relevant shortcomings have been well-reported in the medical literature:
25. Within several years of her surgery, it was apparent that Thoma's Harrington rod instrumentation broke and that she was suffering from a painful fusion failure, i.e., a pseudarthrosis, at the L3 level. AR1759, 1867, 1984. She underwent two additional surgeries to correct this L3 pseudarthrosis-first in 1982 (at age 17), and again in 1990 (at age 26), with the insertion of two smaller rods, after the first surgery proved unsuccessful. AR1540, 1984. Even so, Thoma endured increasing pain as she grew older and her spine suffered the wear and tear of the altered biomechanics — and flatback syndrome — resulting from her fusion. AR1983-93. Major revision surgery was recommended as early as 2002, but Thoma wished to exhaust conservative treatment. AR1984. By 2011 (at age 46), her pain had become so persistent that she felt compelled to undergo the flatback revision surgery. AR358, 365, 861, 1624, 1984-85. In addition to the surgical attempt to restore some lordosis to her lumbar region, it was determined that she should undergo additional fusion (down to the S-1 level) due to adjacent degenerative changes she suffered at levels below her prior fusion. Id. While the revision surgery provided some relief, this was incomplete and (as in the past) Thoma's pain gradually returned. See AR1178-86, 1983-93. A further pseudarthrosis, at T8-T9 was identified in 2013. AR1623, 1627, 1759. Additionally, Thoma developed painful degenerative changes in her cervical spine, for which she ultimately underwent a cervical fusion at C5 to C7, in 2013. AR843-46, 1178-86, 1983-93. The cervical fusion provided incomplete relief and, on top of the ongoing pain associated with her failed back syndrome (which additionally included associated hip pain and tenderness), Thoma recognized that it was no longer possible for her to work. Id.
26. Thoma took a short-term disability ("STD") leave starting April 23, 2011, in relation to the flatback revision surgery she underwent at that time. AR349, 358, 363. LINA approved her for STD benefits through October 1, 2011, the date on which her physicians approved her for return to work. AR333-68, at 344, 348, 478, 479-80.
27. On October 10, 2013, to accommodate her cervical fusion, Thoma commenced another STD leave. AR304-32 at AR327. Thoma found herself unable to return to work and was obliged to transition to LTD Plan benefits, which became effective on April 8, 2014, after the Plan's 180-day "elimination period." AR21, 51.
28. Throughout the first two years of her LTD claim, LINA repeatedly approved Thoma for "own occupation" benefits. Among the factors cited by LINA's lay and medical examiners were: (1) her self-reported pain, (2) her ongoing spinal misalignment, (3) her potent opiate pain management regimen, (4) the accumulated surgical insult to her spine, and (5) her gait disturbance (as observed on clinical examination and on LINA's surveillance film):
29. Based on its assessment of her LTD Claim, LINA made a lump sum settlement offer on March 5, 2015, see AR197, 463-66, reflecting its belief that her condition was not anticipated to improve throughout the remainder of the "own occupation" period (i.e., through April 8, 2016), but that she would remain disabled for the entire next year.
30. At the time of this offer, LINA had undertaken two rounds of surveillance, from June 24, 2014, through June 27, 2014, AR751-73, and from October 20, 2014, through October 22, 2014, AR686-704, and Allsup — its designated vendor for pursuing Social Security disability ("SSD") benefits — was actively pursuing Thoma's disability claim with the Social Security Administration.
31. The SIU/Surveillance Claim Referral dated May 6, 2014, which initiated the first two rounds of surveillance, listed three "Red Flags" as the basis for conducting surveillance: "Claimant May Be Working: . . . Q' No SSDI" and "Doctor/Medical Doc Issues: . . . Q' Excessive Limitations" and "E Continued Extensions." AR2225-26; AR2291-92. Contrary to the "No SSDI" notation, Thoma was already working with LINA's designated SSD vendor Allsup to secure SSDI. See AR264, 268. Moreover, SSA requires a claimant to be disabled for "five full calendar months." AR543 [SSA Notice of Award]. There was no documentation of "continued extensions" noted anywhere in LINA's ACCLAIM notes. LINA's final SIU Report asserted that in addition to these three "red flags," the claim examiner reported two additional "red flags," including "extended recovery period" and "cannot provide a PAA." AR751 [07-08-2014 Surveillance Report]. However, there is no ACCLAIM notation that LINA viewed Thoma's recovery as "excessive" or "extended" at that time, and there were internal medical approvals of her disability before and after the claim referral. LINA had just referred her to its SSA vendor on the presumption that her disability would continue. Dr. Vessa returned a Physical Ability Assessment ("PAA") form on May 20, 2014. AR792-93 [05-20-2014 Vessa PAA]; AR259 [ACCLAIM Note] ("5/22/2014 — Received OVN and PAA.").
32. Despite two specific requests, see ACW Decl. Ex. 3 and AR1749-57, LINA did not produce the SIU/Surveillance Claim Referral prior to Plaintiff's discovery requests in this litigation.
33. On April 25, 2014, LINA arranged for its designated Social Security representative, Allsup, to press Thoma's claim for SSD benefits before the SSA. AR264, 268. On May 29, 2014, Allsup accessed and copied Thoma's medical records from LINA's file. ACW Decl., ¶17 & Ex. 14.
34. LINA required Thoma to pursue SSD benefits by requiring her to sign a Reimbursement Agreement that allowed it to reduce her LTD Plan disability benefits by an estimated amount of her SSD benefits if she did not proactively apply for such benefits. AR806 [04-03-2014 Reimbursement Agreement]; AR33 [Group Policy — "Assumed Receipt of Benefits"].
35. Although SSA initially denied Thoma's claim, see AR2047 [SSA Claim File], Allsup filed an appeal and benefits were ultimately approved and paid by Notice of Award, dated April 27, 2015, see AR185 [ACCLAIM Notes], AR1075-78 [04-27-2015 SSA Notice of Award]. Allsup immediately notified LINA of the approval on or about May 6, 2015. AR1074. LINA then calculated and collected a retroactive overpayment from Thoma's SSD benefits in the amount of $49,881.00, recovered on June 15, 2015, and instituted a reduction in the monthly benefit amount it paid to Thoma from $8,344.00 to $4,507, after deducting for the primary and dependent benefits payable to Thoma. AR57, 185, 1068-74.
36. Vocational consultant Victor Alberigi ("Alberigi") reviewed and evaluated SSA's claim file, in light of his experience in Social Security disability proceedings, and noted the following:
AR2054 et seq., at 2056, 2062.
37. Within several weeks after Allsup notified LINA that Thoma had been awarded SSD benefits, LINA initiated surveillance via a "Claim Referral" to its Special Investigations Unit ("SIU"). AR2291-92 [06-01-2015 SIU/Surveillance Claim Referral; see also AR180 (indicating that a Follow-up Task was created on 05-21-2015 to "f/u [follow up] on SIU.")
38. LINA listed two "Red Flags" as the basis for conducting surveillance: "Claimant May Be Working: . [✓] Allegation Phoned In" and "Doctor/Medical Doc Issues: . . . [✓] No Objective Testing by Doctor." AR2291-92. No third-party allegation of purported work by Thoma is reported anywhere in LINA's claim notes, though Thoma reported to LINA that she was potentially interested in writing or blogging as an alternate work activity. See AR263 (noting that "Cx [claimant] says she . . . is now looking into writing as this would allow her to lay down in b/w [between] writing" and that "Cx is interested in RTW [return to work] in a different field, as mentioned earlier maybe in writing"). The final SIU Report asserts that the Claim Manager reported two new red flags — "Extended Recovery Period" and "Continued Extensions" — in addition to "No Objective Testing by Doctor." AR610. The "phoned in allegation" is dropped from this list. Neither of the new red flags are documented anywhere in the claim notes.
39. LINA made no effort to obtain Thoma's SSD claim file until March 1, 2016, nearly 10 months after it was first advised of SSA's disability determination. AR404-05.
40. Under the terms of the 2013 Regulatory Settlement Agreement (the "RSA"), AR1386, et seq., entered into after an audit of LINA's Glendale CA Office, from January 1, 2009, through December 31, 2010, LINA agreed to institute procedures whereby "the Company will make a reasonable effort . . . to obtain SSA records" and will give the SSD award "significant weight," meaning "that the SSA records relating to the SSDI award are reviewed and consideration of the SSA's judgment that a claimant is disabled for [Social Security disability Income (SSDI)] purposes will generally be an essential element of the Disability evaluation under the governing Disability contract." AR1401, RSA, Ex. B. LINA agreed to these procedures as a consequence of the California Department of Insurance Report of the Targeted Market Conduct Examination of the Claims Practices of Life Insurance Company of North America ("the Market Conduct Report"), adopted June 4, 2012, see AR1419 et seq., which cited LINA for its "failure to obtain, consider or reconcile the complete Social Security Disability Income (SSDI) records relating to an award of SSDI benefits." AR1425. Similar findings were made by the Massachusetts and Maine Departments of Insurance. AR1443 et seq., at 1450; AR1458 et seq., at 1465.
41. These same obligations to obtain SSA claim file records and to give them significant weight are also reflected in LINA's internal policies and procedures.
42. After receiving its surveillance report, see AR610 et seq., LINA requested (and Thoma provided) updated medical and disability information. LINA asserted that "if there is no medical information available to gather to clarify functionality, [it would] scheduling [Thoma] for an Independent Medical Evaluation" ("IME")(AR449-50.) Thoma then provided responses on September 17, 2015, AR1532-1611, and October 14, 2015, AR1612-83. On or about October 8, 2015, LINA initiated an IME, despite the fact that it had already received Thoma's September 17th submission and was anticipating her October 14th submission. See AR123 (listing IME "Vendor Referred Date" as 10-08-2015). See also 1684 et seq., at 1685.
43. Thoma raised several concerns regarding the proposed IME examiner, Dr. Arnold Berman, including:
Despite these concerns, LINA elected to proceed with Dr. Berman as the IME examiner. At the appeal stage, Thoma identified additional concerns regarding Dr. Berman, AR1844-46, including:
44. Upon receipt of Dr. Berman's IME report, LINA conducted a transferable skills analysis ("TSA") that considered Dr. Berman's opinion to the exclusion of all other medical evidence in LINA's possession. AR121, AR1056-57.
45. Thoma had specifically requested and understood that she was being provided an opportunity to review and respond to Dr. Berman's report. ACW Decl Ex. 3 [05-24-2016 Counsel's Letter Objecting to Rushed Decision and Requesting AR], at 1-2. See also AR1107-11 [10-22-2015 Counsel's Letter]; AR1082-83 [12-17-2015 Counsel's Letter]; AR1051-54 [01-06-2016 Counsel's Letter]; AR906-08 [02-09-2016 Counsel's Letter]. She advised LINA that responses would be provided by her treating physicians on or before May 20, 2016. AR1500-02 [04-01-2016 Counsel's Letter]; AR1494-95 [04-14-2016 Counsel's Letter].
46. Based exclusively on Dr. Berman's IME report, the 2015 Surveillance, and the TSA — and without having received the SSA claim file it had requested or the responses from Thoma's treating physicians — LINA terminated Thoma's claim, by letter dated May 13, 2016. AR386-89; ACW Decl. Ex. 3 [05-24-2016 Counsel's Letter Objecting to Rushed Decision and Requesting AR].
47. By letter dated November 8, 2016, Thoma appealed LINA's claim termination. AR1810-48. Thoma's appeal included:
48. In a cover letter to the appeal, also dated November 8, 2016, Thoma specifically requested (1) "a reasonable opportunity to review and respond to any supplemental medical review obtained . . . on appeal"; and (2) that all appeal level communications (including those between LINA's medical consultants and Thoma's physicians) be conducted in writing and with notice to counsel. AR1808-09. By letter dated December 2, 2016, Thoma again requested a reasonable opportunity to review and respond to any new medical opinion obtained by LINA during the appeal stage. AR1805-06.
49. On or about December 23, 2016, Thoma's counsel learned that LINA's medical consultant, Dr. Grattan, had failed to comply with the request for written communications (with notice to counsel's office) and had attempted to contact Thoma's physicians directly, via telephone. ACW Decl. Exs. 15-17. Dr. Grattan subsequently complied and provided written questions for Thoma's treating physicians. Id.
50. On January 10, 2017, in response to these specific questions posed by the peer review consultant retained by LINA for the appeal, Thoma submitted responses from her treating physicians.
51. By letter dated January 19, 2017, LINA explained that its peer consultant medical report had been completed and already forwarded to LINA's vocational consultant for preparation of a transferable skills analysis. AR376. In response, Thoma wrote a third time, on January 20, 2017, to request that she be given a reasonable opportunity to review and respond to the new medical report. ACW Decl. Ex. 17.
52. LINA denied Thoma's appeal, by letter dated January 27, 2017, based exclusively on Dr. Grattan's peer consultant report and the TSA which was based upon it. AR371-74. Thoma was not afforded an opportunity to review and respond to the peer consultant report, although LINA never affirmatively refused Thoma's request to do so. AR1749-57 [02-02-2017 Counsel's Post-Appeal AR Request and Protest Letter].
53. Thoma has had an extended history of major surgical interventions. As noted above, these have included a T4-to-L4 fusion with Harrington rod instrumentation (1979), two surgeries for correction of a resulting L3 pseudarthrosis (1982, 1990), spinal fusion revision and flatback correction surgery, extending her fusion to S1 (2011), and a C5-to-C7 fusion (2013).
54. After her surgical history, Thoma continued to exhibit significant, objectively-documented abnormalities which includes the following:
55. The persistence of posterior sagittal imbalance to the degree exhibited by Thoma (5 cm) is implicated in the pain she continues to suffer. See AR975, "Flat Back and Sagittal Plane Deformity" (noting that "[p]ositive sagittal balance is the most reliable predictor of clinical symptoms in patients with spinal deformity" and "[s]agittal imbalance greater than 4 cm results in deterioration of pain and function scores over time in most unoperated patients"); AR1232, "Treatment of Symptomatic Flatback After Spinal Fusion," (noting that, after revision surgery, "47 per cent [of patients] . . continued to lean forward and . . . 36 per cent . . . continued to have moderate or severe back pain"). This pain is not necessarily neurogenic in nature, but results from the added strain of maintaining a compensatory posture. See AR975, "Flat Back and Sagittal Plane Deformity" ("Patients with flat back deformity have pain in the lower part of their backs because of muscle fatigue resulting from forward inclination of the trunk secondary to loss of lumbar lordosis"); AR1221, "Management of Iatrogenic Flat-Back Syndrome," (noting that "[b]ecause of the strain of trying to achieve erect posture, pain and fatigue may be noted in the cervical, thoracic, and lumbar spine") and, because "[t]he lumbar spine is at a biomechanical disadvantage,. . . [t]his leads to fatigue as the day progresses"; AR2212, S.D. Glassman, et al., "Correlation of Radiographic Parameters and Clinical Symptoms in Adult Scoliosis," 30 Spine 682-88 (2005 ("[S]agittal balance is the most important and reliable radiographic predictor of clinical health status, as patients with positive sagittal imbalance reported worse self-assessment in pain, function, and self-image domains"); id. (noting that this "observation . . . is consistent with the experience of Emami et al., who demonstrated that patients with positive sagittal imbalance after long fusions to the sacrum had increased pain compared to patients with negative global sagittal balance"); AR2218, "Characterization of Gait Function in Patients with Postsurgical Sagittal (Flatback) Deformity," ("This posture puts extra demand on the back extensors, causing fatigue pain . . ., and can lead to anterior thigh and knee pain. . . [as well as] upper back and neck pain . . . [resulting from the] attempt to correct this abnormal posture by hyperextending the unfused thoracic segments as well as the cervical spine.").
56. The existence of sagittal imbalance puts Thoma at increased risk for pseudarthrosis (and, indeed, she has exhibited an ongoing pseudarthrosis at the T8/T9 since 2013), which constitutes a further source of pain. AR1232, "Treatment of Symptomatic Flatback After Spinal Fusion" ("The failure to restore sagittal plane balance led to a higher rate of pseudarthrosis, which was associated with recurrent deformity"); AR2179, "Rationale of Revision Lumbar Spine Surgery" ("The risk of pseudarthrosis has been associated with . . . longer fusions (>12 vertebrae), thoracolumbar kyphosis >20 degrees, osteoarthritis of the hip joint, positive sagittal balance >5 cm"); AR2193, "Current Concepts Review: Prevention and Management of Iatrogenic Flatback Deformity," ("These biomechanical stresses and the risk of subsequent pseudarthrosis may be increased with progressive loss of sagittal balance; thus, pseudarthrosis may be both a causative factor and a complication of flatback syndrome, especially when lordosis is not restored with operative treatment.").
47. Thoma's hip/trochanter pain may be related to the degenerative changes in her lumbar spine or the long-term effects of compensating for her flatback condition. See, e.g., AR1308, D. Hugo, et al., "Greater Trochanteric Pain Syndrome," 11 S.A. Orthopaedic J. 28-33, Autumn 2012 ("Walker et al. found a higher incidence of GTPS [Greater Trochanteric Pain Syndrome] in patients with degenerative spine disease"); AR2223, "Characterization of Gait Function in Patients with Postsurgical Sagittal (Flatback) Deformity," ("Back pain and thoracic hypokyphosis are known problems associated with flatback," but "[t]his study demonstrates that . . . the hip and knee joints are also affected adversely in patients with flatback") Similarly, the presence of lumbar degenerative changes and the ongoing effects of flatback compensation are implicated in the persistence of this pain, despite treatment. See, e.g., AR1316, Brigham & Women's Hospital, "Standard of Care: Greater Trochanteric Pain Syndrome," 2007 ("In the Walker study, `the major predictor of relapse of . . . lateral hip pain patients who received an injection of local anesthetic and glucocorticoids .. . was the presence of moderate to severe lumbar degenerative disease seen on scintigraphic imaging.'").
58. Thoma has engaged in substantial pain-reduction treatment efforts, including multiple surgeries, physical therapy, steroid and analgesic injections, and an opioid-based medication regimen. Thoma's pain medications would be expected to limit her capacity for reliable focus, alertness, and attention. See 12-28-2014 Garvey IME, AR672 et seq., at 67 ("Due to the narcotic and mind altering medications I would limit her from performing Safety Sensitive work duties"); 01-04-2017 Dr. Vessa Letter, AR1759-60 ("Nor is Thoma capable of sustaining the rigors of any regular, full-time work as the excessive pain medication that would be required to sustain such work would be contraindicated, and make her highly undesirable for competitive employment"); 01-09-2017 Dr. Valenza Letter, AR1761-62 ("Any increase in activity, such as would be required to engage in any kind of routine employment, would cause increased pain . . . and would need to be supported with additional pain medication . . I do not believe such an endeavor would be successful, as this would decrease Thoma's cognitive functioning (impairing her work performance and employability), would make her a danger to drive. . ., and would risk further surgeries, radiation exposure, etc.").
59. Both of Thoma's principal treating physicians, Dr. Vessa and Dr. Valenza, have consistently opined that Thoma is disabled from any regular employment. See, e.g., 03-05-2014 Dr. Vessa Letter, AR870; 05-20-2014 Physical Ability Assessment, AR792-93; 10-12-2015 Dr. Vessa Letter and 0916-2015 Physical Ability Assessment, AR1174-77; 05-13-2016 Dr. Vessa Letter, AR1853-55; 09-27-2016 Vessa Physical Examination Report, AR1849-52; 01-04-2017 Dr. Vessa Letter, AR1759-60; 04-11-2016 Dr. Valenza Letter, AR1943; 01-09-2017 Dr. Valenza Letter, AR1761-62.
60. At the time of her appeal, Thoma also submitted a further supporting opinion from a third consulting physician, Dr. Dante Implicito. See AR1972-73 [08-05-2016 Implicito Physical Ability Assessment].
61. Dr. Vessa is board-certified in Orthopedic Surgery, with a practice primarily concerned with spine surgery (AR1523-31), and at the time of his letters, he had treated Thoma for 10 years (AR1174, 1852).
62. Dr. Valenza is board-certified in Physical Medicine & Rehabilitation and Pain Management (AR1962-71), and at the time of his letters, he had treated Thoma for 6 years (AR1943, 270, 821-22).
63. Dr. Implicito is board-certified in Orthopedic Surgery, specializing in spine surgery. AR1974-82.
64. In October 2015, Thoma provided a detailed description of the symptoms that she experiences as a consequence of her spinal condition and flatback deformity:
The pain in my thoracic area is a dull, punching pain. . . .
AR1195-1208 [10-14-2015 C. Thoma Letter].
65. Thoma has consistently reported difficulties with sitting for longer than 20 to 30 minutes, walking for longer than 15 to 30 minutes, and standing longer than 10 to 20 minutes. See, e.g., 01-15-2014, 01-24-2014, 01-29-2014, 03-04-2014, 04-22-2015, 04-24-2015, 04-27-2015, 04-29-2015, 05-01-2015, 05-04-2015 Kessler Rehab Notes, AR745, AR733, AR727, AR724, AR1248, AR1252, AR1255, AR1261, AR1258, AR1263. These limitations have been reviewed and endorsed multiple times by Dr. Vessa in his Physical Ability Assessments ("PAAs"). See 05-20-2014 Vessa PAA, AR792-93; 09-16-2015 PAA, AR1176-77.
66. Thoma reports that her daily pain with these activities is cumulative, and that increasing pain (and pain medications) render her less functional as the day progresses:
AR1105-1208 (10-14-2015 C. Thoma Letter]. Thoma experiences these symptoms and limitations even though she is able to organize her own schedule and lay down for several hours each day. Id.
67. On appeal, Thoma provided additional detail regarding her symptoms:
AR1983-93 [11-07-2016 C. Thoma Letter].
68. Thoma further reported that the accumulation of pain, fatigue, and pain medication side effects causes her cognitive difficulties and leaves her with decreased emotional resources. AR1201 [10-14-2015 C. Thoma Letter] (""I have gotten in the practice of writing everything down, or putting it on a calendar, or list, because I have learned too many times that if I do not do so, I will be embarrassed to discover that I have forgotten or missed something"); id. ("The constant pain I'm in now leaves me with limited reserves of patience and selfcontrol.").
69. Witness letters submitted — from Thoma's husband (Richard Thoma), pastor (Rev. Rick Morley), and hairdresser (Ricky Pennisi) — corroborate Thoma's reports of pain, and cognitive difficulties:
70. Cognitive impairments are documented in the medical literature for patients with chronic back pain — whether due to the pain itself, opioid pain medications, or some combination of the two. See, e.g., AR1322 et seq., at 1336, 0. Moriarty, et al., "The Effect of Pain on Cognitive Function: A Review of Clinical and Preclinical Research," 93 Progress in Neurobiology 385-404, 2011 ("There appears to be sufficient evidence from preclinical and clinical investigations to support the theory that pain is associated with impaired cognitive function"); AR1342 et seq., at 1349, M. Schiltenwolf, et al., "Prospective Study: Evidence of Specific Cognitive Deficits in Patients with Chronic Low Back Pain under Long-Term Substitution Treatment of Opioids," 17 Pain Physician 9-19, Jan./Feb. 2014 ("Most importantly, the current study found that visual attention, information processing, graphomotor speed, visual scanning ability, and numeric sequencing ability are impaired in both patient groups [i.e., patients with chronic low back pain with or without long-term opioid therapy] in comparison to healthy controls, and, [a]dditionally, the executive function regarding working memory and cognitive flexibility of patients who underwent chronic opioid therapy was significantly hindered, which means that the opioids group may perform normally in simple tasks but performance could fall behind as the executive domain become more complex"); AR1353 et seq., at 1361, S. Tamburin, et al., "Cognition and Emotional Decision-Making in Chronic Low Back Pain: an ERPs Study During Iowa Gambling Task," 5 Frontiers in Psychology 1-11, Nov 2014 ("In conclusion, we documented that cLBP [chronic low back pain] patients show poor performance in DM [decision-making], as assessed with MCST and IGT" and "[t]hese abnormalities might contribute to the impairment in the work and family settings that often cLBP patients report").
71. Both of Thoma's treating physicians found her pain complaints to be entirely credible and consistent with her medical history. Dr. Valenza, her pain management physician, wrote:
AR1943 [04-11-2016 Dr. Valenza Letter Response to Dr. Berman's IME Report].
72. LINA's first external medical reviewer, Dr. Karen Garvey, opined that "I do believe that Thoma may experience pain in the cervical, thoracic, lumbar and hip regions" and that "[d]ue to the narcotic and mind altering medications, I would limit her from performing Safety Sensitive work duties." AR672-79 [12-28-2014 Dr. Garvey IME Report] at AR679.
73. Like Dr. Valenza, treating physician Dr. Vessa fully endorsed Thoma's disability:
AR1853-55 [05-13-2016 Dr. Vessa Letter]. Dr. Vessa also noted: "Even at her present level of medication, I would not hire her for a position in my office (and I think other employers would have similar reservations, particularly for any job with significant responsibilities)."
74. On appeal, Dr. Vessa submitted an updated examination and opinion in which he emphatically repeated his opinion:
AR1849-52 [09-27-2016 Dr. Vessa Letter] at AR1852.
75. On appeal, Thoma submitted a vocational evaluation from Alberigi. In addition to his listed accreditations — Certified Rehabilitation Counselor, Licensed Professional Counselor, Licensed Social Worker, Certified Disability Management Specialist, and Associate of the Board of Vocational Experts — Alberigi has 35 years of experience providing vocational and rehabilitation counseling and has served as a Vocational Expert for the SSA and Vocational Case Consultant for the U.S. Department of Labor ("DOL"). AR2080.
76. Alberigi's review included: Thoma's statements, Fox News's Job Description, physician opinions (from Drs. Vessa, Implicito, Garvey, and Berman), SSA records, and LINA's prior Transferable Skills Analysis ("TSA") and Exploratory Transferable Skills Analysis ("ETSA"). AR2054-55. Alberigi also conducted an employability interview with Thoma. AR2056-58.
77. Reviewing the LINA TSA prepared in relation to the termination of Thoma's claim, Alberigi identified several flaws:
a. Thoma's specific education, training and experience renders her unqualified for the Advertising and Promotions Manager position identified as an "alternate" occupation by that TSA. AR2075.
b. The TSA was based exclusively on the opinion of Dr. Berman, without regard for the substantial countervailing evidence. AR2071, 2073.
c. The TSA failed to take account of Thoma's reliance on opioid pain medications. AR2073, 2075.
d. The TSA improperly lumped broad wage data information together, even though that data included wages for high-earning industries in which Thoma has no experience, education or training. AR2075-78.
78. Ultimately, Alberigi concluded that Thoma was disabled under the LTD Plan's definition of disability:
AR2054-79 [09-20-2016 Alberigi Vocational Evaluation Report] at 2078.
79. LINA's termination was based exclusively on the IME Report of Dr. Berman, a vocational assessment TSA, and LINA's surveillance. AR386-89 [05-13-2016 LINA Termination Letter].
80. On physical examination, Dr. Berman found a litany of normal findings, including no tenderness, no spasm, no weakness, and no pain to palpation throughout Thoma's cervical and thoracolumbar spine and hips. AR1062. Neither on personal examination nor in the video surveillance did Dr. Berman see any evidence of abnormal gait. AR1061-62, AR1064.
81. Dr. Berman itemized the medical records he reviewed, but otherwise did not discuss, synthesize or weigh those records, other than to say that the "Radiological studies brought to the evaluation by the claimant were reviewed by me in great detail, and demonstrated findings expected and consistent with the claimant's surgical history, and did not demonstrate findings consistent with functional limitations or disability." AR1065. Although he did not personally review the surveillance as part of his initial report, LINA requested that he do so and provide an addendum, but his opinion remained the same. AR88 [ACCLAIM Note] ("Attorney provided request for clarification regarding info reviewed in IME and SIU was received. Addendum request sent to Dr. Berman. Amended report received 3/9/2016 and Dr. Berman opined additional info did not change prior opinion.")
82. Dr. Berman did discuss the physical examination findings noted by other physicians and did not explain why he rejected Thoma's subjective complaints of pain, the opinions of Thoma's treating physicians, or the substantial medical literature corroborating the presence of debilitating pain in flatback patients. Id.
83. Dr. Berman did not explain why the evidence of Thoma's condition — such as (1) sagittal imbalance and other postural abnormalities, (2) abnormal gait, (3) thoracic pseudarthrosis, (4) greater trochanter/hip pain, (5) degenerative changes of the spine, (6) spinal tenderness and reduced spinal flexibility, (7) lower extremity/lumbar muscle stiffness/weakness/abnormalities, and (8) significant pain medication and treatment — failed to corroborate and support Thoma's complaints of pain. Id.
84. Ultimately, Dr. Berman concluded that Thoma has no functional deficits whatsoever, and was able to return her former occupation, "full time full active duty." Id.
85. Had LINA not rushed to terminate Thoma's claim, it would have received Dr. Vessa's assessment of Dr. Berman's IME Report, which was later submitted as part of Thoma's appeal:
See AR1854 [05-13-2016 Dr. Vessa Letter].
86. Neither Dr. Berman nor LINA made any effort to reconcile Dr. Berman's conclusion that Thoma had full work capacity for her own occupation with LINA's prior payment for two years of "own occupation" benefits based on multiple LINA medical assessments. Id.; AR386-89 [05-13-2016 LINA Termination Letter].
87. The TSA performed in conjunction with the termination of Thoma's claim was based entirely on one medical opinion — Dr. Berman's. AR1056-57 [01-25-2016 TSA].
88. Based on Dr. Berman's findings, TSA concluded that Thoma was capable of performing her former occupation of "producer." Id.
89. Neither LINA (in its denial letter or internal deliberations) nor the TSA evaluator explained the apparent discrepancy between this determination and LINA's own prior determinations that Thoma was disabled from her own occupation, or SSA's determination that Thoma was incapable of "any substantial gainful activity." AR1056-57 [01-25-2016 TSA]; AR386-89 [05-13-2016 LINA Termination Letter].
90. Although LINA conducted three total rounds of surveillance (a total of 11 days) in June 2014, October 2014, and June/July 2015, LINA relied solely on three activities in the 2015 surveillance, one occasion of Thoma sitting for "over thirty minutes," one occasion of her "carrying a red bag and folding chair over her shoulder," and one occasion of Thoma "standing for over forty-nine minutes in a sports field" in making its termination decision. AR386-89 [05-13-2016 LINA Termination Letter], at AR387. LINA made no reference to the prior surveillance, and LINA continued to pay Thoma LTD benefits throughout that period and continued to acknowledge she was disabled and entitled to benefits. Id.
91. Treating orthopedic surgeon, Dr. Vessa, viewed the surveillance and explained why it did not surprise him or change his opinion of Thoma's disability:
AR1854 [05-13-2016 Dr. Vessa Letter]. See also AR1174-75 [10-12-2015 Dr. Vessa Letter] (addressing earlier surveillance.)
92. Responding to the significance Dr. Berman attributed to the surveillance activities, Dr. Valenza also explained why those activities did not surprise him or change his opinion of Thoma's disability. AR1943 [04-11-2016 Dr. Valenza Letter].
93. Thoma explained that the surveillance did not contradict what she had reported to LINA as her activities, nor do they contradict her disability. AR1989-92 [11-07-2016 C. Thoma Letter].
94. At the appeal stage, LINA retained Dr. Howard Grattan to conduct a paper review of Thoma's claim. AR1783-90 [01-13-2017 Dr. Grattan Peer Consultant Report].
95. It appears that the documentation reviewed by Dr. Grattan included Alberigi's vocational evaluation report and the SSD claim file information, amid a plethora of medical and other documentation. AR1783-1790, at 1788.
96. Dr. Grattan provided a 4-sentence summary synopsis of Alberigi's report, but no actual assessment of the report. AR1797-98.
97. Although Dr. Berman's report is listed as an item Dr. Grattan reviewed (AR1784), the report is not further discussed other than to note that Thoma's providers disagreed with his assessment. AR1797
98. Dr. Grattan lists and describes the surveillance, but he nowhere makes any findings or draws any conclusions from this evidence. AR1785, AR1787, AR1794, AR1795.
99. Dr. Grattan's report contains no discussion of the SSA claim file's vocational reasoning and rationale, as set forth in the SSA Disability Determination Explanation. Id.
100. The first nine pages of Dr. Grattan's report are little more than a list of the evidence he examined. AR1783-91. The last 7-page "Clinical Summary" (AR1793-99) is a descriptive summary of the evidence (without any evaluative commentary or assessment), and the gist of his opinion is contained in the 2page Recommendations/Rationale (AR1792-93).
101. The Recommendation/Rationale includes several additional descriptive summaries of selected medical evidence but does not explain why these were selected from the remainder of the evidence or how they are logically related to his opinion. Id.
102. Dr. Grattan concedes that Thoma (i) is limited, (ii) has an "extensive surgical" history, (iii) has "alteration of spinal kinesiology," and (iv) that "medically necessary work and activity restrictions are required." AR1792.
103. Dr. Grattan rejected Thoma's described severity of pain and instead focused on an assessment of what the "objective" evidence suggested about her physical functional ability. He concedes that Thoma's "reports of pain are appreciated and are explained by her history of extensive surgery," and rejects those complaints because "the objective findings do not explain why the claimant would not have the ability to function within the restrictions outlined below" AR1791-92 [01-13-2017 Dr. Grattan Peer Consultant Report]. This is similar to a finding made by Dr. Garvey, an earlier LINA medical consultant. AR679 ("[A]lthough I do believe that Thoma may experience pain in the cervical, thoracic, lumbar and hip regions, the subjective complaints of limitations outweigh the objective findings and observations.").
104. Dr. Grattan summarized the findings and opinions of Dr. Vessa and Dr. Valenza, but did not provide a critical assessment of their opinions or why he disagrees with them. After receiving responses to his questions, he dismissed these responses, stating that they "[did] not change my opinion as the providers are describing pain reports without ongoing neurological deficits." AR1791. Dr. Grattan has not described the specific neurological deficits that would satisfy him, nor has he explained why the various objective abnormal findings documented in Thoma's medical record are insufficient.
105. Dr. Grattan supplies very specific restrictions and limitations, AR1793, but does not explain why these particular restrictions are supported by the "objective" evidence, while the restrictions supplied by Dr: Vessa, Dr. Valenza, and Dr. Implicito are not.
106. Dr. Grattan's restrictions and limitations are:
AR1793.
107. None of LINA's examining or paper review physicians have alleged that the evidence suggested that Thoma was malingering, exaggerating or otherwise dissembling her condition or pain. AR1783-90 [01-13-2017 Dr. Grattan Peer Consultant Report]; AR1060-65 [12-16-2015 Berman IME Report]; AR672-79 [12-28-2014 Dr. Garvey IME Report].
108. Dr. Grattan opined that "[o]bjectively, there is no evidence of motor weakness." AR1792. However, he does not identify the record on which that determination is based.
109. Dr. Grattan opined that "there was no evidence of adverse [opioid pain medication] side effects nor is there evidence that suggests the claimant is cognitively impaired," AR1973, but did not address Dr. Vessa's and Dr. Valenza's statements that her medication would need to be increased so as to allow her to perform the duties of a sedentary occupation.
110. LINA provided its vocational consultant with Dr. Grattan's report. AR67 [Appeals TSA" Request] ("Please complete Appeals TSA based on R/Ls obtained from PR Report completed by Dr. Howard L. Grattan. . . ."); AR1778-80 [01-20-2017 Transferable Skills Analysis] ("Occupations were identified based on the Peer Review by Dr. Grattan dated 1/13/17").
111. The TSA on appeal was conducted by Melissa Mendez, a vocational rehabilitation consultant who was involved in the TSA obtained at the time Thoma's claim was terminated. AR1055, AR1058, AR1778-79.
112. LINA provided Ms. Mendez with neither the Alberigi Report, nor the SSA Disability Determination Explanation, which included its own vocational assessment. AR2080-151; AR2034-49; AR2047-49.
113. The TSA purported to find alternate occupations Thoma was able to perform and that satisfied the Plan's wage requirement. AR1778-80. In its letter dated January 27, 2017, LINA upheld its termination of Thoma's LTD Plan benefits based on these two opinions. AR371 et seq.
114. With regard to SSA's claim file, the LINA appeal denial letter explained that "[t]he claim file has been reviewed in its entirety, as a whole" but that "[t]he criteria used by the SSA may differ from the requirements of the policy under which your client is covered." AR373.
115. Although Thoma contended that (i) SSA's criteria do differ and, indeed, are more stringent, and (ii) no special rules were applied in her case, LINA did not state specifically how the criteria differed, or how that difference was relevant to LINA's determination that the SSA information be given no weight. Id.
116. LINA's ACCLAIM Notes state: "SS award is relevant and was given consideration in my consideration . Information from SSA was reviewed by Board Certified Physicians in PMR. Claim file reviewed in its entirety, as a whole. Proceeding with claim decision." AR63. LINA's internal policies and procedures provide that a claim examiner should:
AR2312.
ERISA §§ 3(1), 3(3), 4(a), 502(a) (1) (B) and (a)(3), 29 U.S.C. §§ 1002(1) and (3), 29 U.S.C. § 1003(a), 29 U.S.C. §§ 1132 (a) (1) (B) and (a) (3).
In an action brought by a plan beneficiary to recover plan benefits under § 1132(a)(1)(B), "a denial of benefits . . . is to be reviewed under a de novo standard unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Language that confers discretionary authority must be clear, as "[a]mbiguities are construed in favor of the plan beneficiary." Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 622 (2d Cir. 2008). Discretionary language in non-Plan auxiliary documents, such as summary plan descriptions ("SPDs"), is ineffectual. See, e.g., CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011); Durham v. Prudential Ins. Co. of Am., 890 F.Supp.2d 390, 395-96 (S.D.N.Y. 2012).
Here, the Group Policy contains no discretionary authority and it contains an integration clause: "[t]he entire contract will be made up of the Policy, the application of the Employer, a copy of which is attached to the Policy, and the applications, if any, of the Insureds." AR40.
The document that Defendants advance as conferring discretion is the Appointment of Claim Fiduciary ("ACF"). AR1. However, this argument fails. The ACF was never disclosed before the commencement of this action, is not an amendment, and was not endorsed on or attached to the Group Policy. Id. Neither LINA nor Fox News provided the ACF as part of the Group Policy, and while the ACF "authorized the issuance of appropriate amendments," no such amendment was ever proffered. Id.
In Barbu v. Life Ins. Co. of N. Am., an identical LINA ACF was deemed insufficient to confer discretionary authority. 987 F.Supp.2d 281, 286-289 (E.D.N.Y. 2013) (citations omitted). There, the court noted that the ACF could not be enforceable as an amendment to the Policy, because the "the amendment provision required] any amendment to be `endorsed on, or attached to, the Policy,'" but the plaintiff had not received the ACF until discovery and the defendant made no attempt to show that the ACF otherwise complied with the amendment provision. Id. at 288 n.4. (citations omitted). For these same reasons, the ACF here is not part of the Plan and the proper standard of review as to the benefits determination is de novo.
Even if the Policy did confer discretionary authority, de novo review would still be appropriate because Defendants have failed to demonstrate that they complied with ERISA's procedural regulations. See Halo v. Yale Health Plan, 819 F.3d 42, 57-58 (2d Cir. 2016) ("[A] plan's failure to establish or follow the claims-procedure regulation entitles the claimant to have his or her claim reviewed de novo in federal court."); Schuman v. Aetna Life Ins. Co., 2017 WL 1053853, at *12 (S.D.N.Y. Mar. 20, 2017) (applying de novo review instead of arbitrary and capricious review because defendants failed to establish that they substantially complied with ERISA's claimsprocedure regulation).
In this case, LINA violated ERISA's procedural regulations in two ways. First, LINA violated the ERISA regulations by withholding the Alberigi vocational evaluation report from its vocational consultant and failing to consider that report on review, and also by withholding from its vocational consultant the SSA Disability Determination (which included its own vocational assessment). AR2080-151; AR2034-49; AR2047-49. These actions violated the ERISA provision requiring LINA to provide a "review that takes into account all comments, documents, records, and other information submitted by the claimant." 29 C.F.R. § 2560.503-1(h)(2)(iv) (applied to disability claims via 29 C.F.R. §2560.503-1(h) (4)). See, e.g., Aitken v. Aetna Life Ins. Co., 2018 WL 4608217, at *38-43 (S.D.N.Y. Sept. 25, 2018) (de novo review proper where defendant did not demonstrate that it took vocational evaluation into account in its decisionmaking process, nor that its failure to do so was inadvertent and harmless); Schuman v. Aetna Life Ins. Co., 2017 WL 1053853, at *16 (D. Conn. Mar. 20, 2017) (defendant violated ERISA by relying on medical consultant's assessment of claimant's vocational report).
LINA also violated ERISA's procedural regulations when it failed — despite requests from Thoma — to produce (i) SIU Claim Referral forms or (ii) applicable internal policies. ACW Decl. 119 & Ex. 3. ERISA requires that there be a procedure to make "relevant documents" available to the claimant on appeal. 29 C.F.R. §§ 2560.503-1(h)(2)(iii). ERISA defines "relevant documents" as including any document that "Idjemonstrates compliance with the administrative process and safeguards required pursuant to paragraph (b)(5)," which in turn requires that the claims procedures ensure that plan provisions are applied in a consistent manner, as well as any document that "constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant's diagnosis." 29 C.F.R. § 2560.503-1(m)(8)(iii), (iv).
It appears that LINA concedes that the SIU Claim Referral forms and the SIU/Surveillance Instruction form are part of the record. ACW Decl. 119(b). The internal guidelines at issue here are relevant to a consideration of whether the claims procedure was applied consistently. See Schuman v. Aetna Life Ins. Co., 2017 WL 1053853, at *16 (D. Conn. Mar. 20, 2017); Kruk v. MetLife Ins. Co., 267 F.R.D. 435, 437-38 (D. Conn. May 27, 2010); Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 124 (1st Cir. 2004). These policies and procedures were specifically requested in counsel's request for the administrative record, but were provided to Thoma for the first time as part of discovery in this case. See ACW Decl. ¶ 19(b), Ex. 3.
In light of the above, Thoma's benefits determination is subject to a de novo standard of review.
ERISA provides that a "civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his future benefits under the terms of the plan." DeCesare v. Aetna Life Ins. Co., 95 F.Supp.3d 458, 479-80 (S.D.N.Y. 2015) (citing 29 U.S.C. 1132(a)(1)(B)).
"[U]pon de novo review, a district court may render a determination on a claim without deferring to an administrator's evaluation of the evidence." Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 296 (2d Cir. 2004). Under this standard, the claimant must prove by a preponderance of the evidence that she is disabled within the meaning of the plan. See, e.g., Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 765 (2d Cir. 2002). Here, that means Thoma must show that she is "unable to perform the material duties of any occupation for which . . she is, or may reasonably become, qualified based on education, training or experience" and "unable to earn 60% or more of . . her Indexed Earnings." AR20.
LINA terminated Thoma's claim based on Dr. Berman's IME report, the TSA (which considered Dr. Berman's opinion to the exclusion of all other medical evidence in LINA's possession), and the 2015 surveillance. AR386-89; ACW Decl. Ex.
3. However, the evidence provided by these materials does not outweigh the evidence supporting Thoma's claim. Dr. Berman, in making his determination that Thoma was fully able to return to her former occupation, did not explain why he rejected Thoma's complaints, the opinions of her treating physicians, or the medical literature corroborating her experience. AR1065; AR88. Moreover, there was no attempt to reconcile Dr. Berman's conclusions with LINA's prior benefit payments to Thoma (which were based on several medical assessments made by LINA) or SSA's determination that Thoma was incapable of "any substantial gainful activity." AR1854; AR386-89, AR1056-57; AR386-89.
Additionally, although LINA's surveillance in 2015 revealed that Thoma sat for over 30 minutes, carried a bag and folding chair over her shoulder, and stood for over 49 minutes in a sports field, Dr. Vessa and Dr. Valenza—two of Thoma's treating physicians—found that these activities are not inconsistent with Thoma's reported disability. AR386-89, AR1854, AR1174-75, AR1943. Dr. Vessa also noted that there are "long periods of time between the filmed activities, when [Thoma] is apparently resting." AR1854.
On appeal, LINA enlisted the assistance of Dr. Grattan to conduct a paper review of Thoma's claim. AR1783-1798. Dr. Grattan found that Thoma could function within a set of specific restrictions, but offered little by way of substantive analysis, particularly any discussion as to why his opinion differed from the opinion of other evaluators who had previously assessed Thoma's condition and ability to return to work. Id. Also as part of the appeal, LINA's vocational consultant determined that Thoma was able to perform alternate occupations that satisfied the Plan's wage requirement. AR1778-80. While LINA provided its vocational consultant with Dr. Grattan's report, it did not provide her with Alberigi's report or the SSA Disability Determination Explanation. AR2080-151; AR2034-49; AR2047-49.
At the same time, there is ample evidence in the record that Thoma is entitled to LTD benefits under the Plan.
Thoma has suffered from scoliosis-related health problems for the majority of her life, having had her first correctional surgery at 14 years old and several more after that. AR727, AR922, AR1248, AR1761, AR1853, AR1983, AR1540, AR1759, AR1853, AR1983, AR2026. The abnormalities resulting from her condition and surgical history have been documented on multiple occasions by various evaluators. As a result of the pain she experiences, Thoma has engaged in pain-reduction treatment efforts that may reasonably be expected to limit her ability to focus, and remain alert or attentive. AR672 et seq.; AR1761-62; AR1105-1208; AR1983-93; AR1201. Medical literature details the impairments associated Thoma's first surgery, particularly the risk of developing flatback syndrome, and corroborates Thoma's complaints more generally. See, e.g., AR2165, AR590, AR1322 et seq., AR1342, AR1353. Witness statements support the characterization of Thoma as someone who loved her work but is severely restricted in her actions as a result of her condition. AR1652, AR1651, AR 1653-55. There has been no allegation from any of Thoma's numerous examining or paper review physicians that she was exaggerating her pain. AR1853-55; AR1783-90; AR1060-65; AR672-79.
LINA approved Thoma for disability benefits, after its own medical examinations, several times. AR304-32; AR21; AR51; AR275-770; AR249-51; AR672-79; AR209-10; AR200-01; AR194. The findings in those examinations echo Thoma's present and past complaints, for example, that she has difficulty sitting for extended periods of time. See, e.g., AR1195-1208; AR745; AR733; AR727; AR724; AR1248; AR1252; AR1255; AR1261; AR1258; AR1263; AR792-93; AR1176-77. In 2014, LINA prompted Thoma to apply for social security benefits, apparently on the presumption that her disability would continue. AR264; AR268; AR806; AR33.
The SSA found Thoma's claims credible and consistent with objective medical evidence, and that she was continuously disabled under Social Security's rules. AR2054-62. Additionally, the SSA opted not to review Thoma's medical evidence again until three years after it made this determination, as it deemed that "cessation of disability, as defined by SSA, is unlikely/improbable during the intervening 3-year interval." Id. While the SSA decision is not conclusive, it is surely a relevant piece of evidence in support of Thoma's claim. See Billinger v. Bell Atlantic, 240 F.Supp.2d 274, 285 (S.D.N.Y. 2003). Its evidentiary value is particularly clear here, where the SSA finding is corroborated by evidence in the administrative record. Cf. Alfano v. CIGNA Life Ins. Co. of N.Y., 2009 WL 222351 at *17 (S.D.N.Y. Jan. 30, 2009) ("Because it is probative of [plaintiff's] entitlement to benefits under the Plan, and is corroborated by record evidence establishing Alfano's disability, the Court accords the SSA determination substantial weight.").
Both of Thoma's principal treating physicians have stated that Thoma is disabled from any regular employment. AR870; AR792-93; AR1174-77; AR1853-55; AR1943. These physicians found Thoma's complaints to be entirely credible and consistent with her lengthy medical history. AR1943; AR672-79; AR1853-55; AR1849-52.
Alberigi, who has 35 years of experience providing vocational and rehabilitation counseling and who has served as a Vocational Expert for the SSA and Vocational Case Consultant for the DOL, disagreed with several of LINA's findings. AR2080. Of particular note, Alberigi found that the TSA was based exclusively on the opinion of Dr. Berman, without consideration of countervailing evidence, and failed to take into account Thoma's reliance on pain medications. AR2054-58. Additionally, Alberigi found that the TSA improperly calculated the wage data. Id. For these and other reasons, Alberigi concluded that Thoma was disabled under the LTD Plan's definition of disability. Id. In sum, Thoma has shown by a preponderance of the evidence that her long history of health troubles related to her spine, hip, and other conditions, as well as the medications required to treat the pain associated with those difficulties, has left Thoma "unable to perform the material duties of any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience" and "unable to earn 60% or more of her Indexed Earnings." As a consequence, Thoma's claim is reinstated; she is entitled to LTD Plan benefits from May 13, 2016 to the present.
ERISA's fee shifting provision provides that the court "in its discretion may allow a reasonable attorney's fee and costs . . . to either party." 29 U.S.C. § 1132(g)(1). "It is well-established that `Congress intended the fee provisions of ERISA to encourage beneficiaries to enforce their statutory rights.'" Donachie v. Liberty Life Assur. Co. of Boston, 745 F.3d 41, 45-46 (2d Cir. 2014) (quoting Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 47 (2d Cir. 2009)). "[W]hether a plaintiff has obtained some degree of success on the merits is the sole factor that a court must consider in exercising its discretion" to award attorneys' fees. Id. at 46 (citing Hardt v. Reliance Std. Life Ins. Co., 560 U.S. 242, 254-255 (2010)).
Thus, because she has had "some degree of success on the merits," Thoma is entitled to her reasonable attorneys' fees and costs. Cf. Donachie, 745 F.3d at 46 ("[I]n light of the ERISA fee provision's statutory purpose . . . granting a prevailing plaintiff's request for fees is appropriate absent
some particular justification for not doing so.") (quotation marks and internal citations omitted).; Alfano v. CIGNA Life Ins. Co., 2009 U.S. Dist. LEXIS 28118, at *2-3 (S.D.N.Y., Apr. 2. 2009).
The decision to award prejudgment interest to a successful ERISA claimant, "like the decision to award attorney's fees, is committed to the sound discretion of the district court." Slupinski, 554 F.3d at 53-54. Moreover, "like an award of an attorney's fees for a successful ERISA claim by an employee benefit plan participant, prejudgment interest is an element of [the plaintiff's] complete compensation." Id. "[T]he factors that the district court is to consider in determining whether to award prejudgment interest are (i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court." Id. at 55.
Thoma is entitled to pre-judgment interest because of the equities, the need to fully compensate Thoma, and the remedial purposes of ERISA.
Based on the findings of fact and conclusions of law set forth above, Plaintiff's motion for judgment on the administrative record is granted and Defendants' motion for judgment on the administrative record is denied.
It is so ordered.
