RICHARD M. BERMAN, District Judge.
On September 28, 2009, Robert Veryzer, Ph.D. ("Plaintiff"), filed a complaint ("Complaint") against American International Life Assurance Company of New York ("AI Life" or "Defendant") pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. ("ERISA"), seeking a declaration that AI Life erroneously denied Plaintiffs February 2008 claim for long-term disability benefits ("Benefits Claim") under a group insurance policy ("Policy") issued by AI Life to Plaintiffs employer. (See Compl., dated Sept. 25, 2009, ¶¶ 2, 21, 26.) Plaintiff alleges that AI Life's denial of the Benefits Claim based upon its determination that Plaintiffs (acknowledged) disability fell within the Policy's "Mental Illness" provision—which limits benefits to 24 months—"was unsupported by substantial evidence, erroneous as a matter of law, not made in good faith, and in violation of ERISA." (Compl. ¶¶ 12, 19, 21, 31.)
On August 26, 2010, after the parties had attempted unsuccessfully to mediate the matter, AI Life moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ.P."), arguing that Plaintiffs claim fails because AI Life's denial of Plaintiffs Benefits Claim "is supported by substantial evidence, including an [i]ndependent [m]edical [r]eview by an expert in medical and forensic neuropsychology [David E.
On September 23, 2010, Plaintiff opposed AI Life's motion and also cross-moved for summary judgment, arguing that "Defendant's application of the Policy's Mental Illness limitation to [Plaintiffs] claim is arbitrary and capricious [and] the determination is unreasonable and unsupported by substantial evidence." (Pl.'s Mem. of Law in Opp'n to AI Life's Mot. for Summ. J & in Supp. of Pl.'s Cross-Mot. for Summ. J., dated Sept. 23, 2010 ("Pl. Mem."), at 13.) Plaintiff contends that significant evidence in the record from Plaintiffs treating physicians contradicts the two (paid) experts—Hartman and Leikin—relied on by AI Life, "who did not examine or interview [P]laintiff." (Pl. Mem. at 2.)
On October 8, 2010, AI Life filed a reply and opposition to Plaintiffs cross-motion. (See AI Life's Reply Mem. of Law in Supp. of AI Life's Mot. for Summ. J & in Opp'n to Pl.'s Cross-Mot. for Summ. J., dated Oct. 8, 2010 ("AI Life Reply").) On October 22, 2010, Plaintiff filed a surreply. (See Pl.'s Surreply Mem. of Law in Opp'n to AI Life's Mot. for Summ. J. & in Supp. of Pl.'s Cross-Mot. for Summ. J., dated Oct. 22, 2010 ("Pl. Surreply").) On January 18, 2011, the Court heard oral argument. (See Tr. of Proceedings, dated Jan. 18, 2011 ("Hr'g Tr.").)
AI Life issued the Policy, effective January 1, 2004, to Rensselaer Polytechnic Institute ("Rensselaer"), a university located in Troy, New York. (See AI Life's Local Rule 56.1 Statement of Material Facts, dated Aug. 26, 2010 ("AI Life 56.1"), ¶ 1; Pl.'s Statement of Undisputed Material Facts Pursuant to Local Rule 56.1, dated Sept. 23, 2010 ("Pl. 56. 1"), ¶ 1.) At that time, Plaintiff was a tenured Associate Professor at Rensselaer's Lally School of Management. (See Administrative Record, filed Aug. 26, 2010 ("Record"), at 4, 6; AI Life 56.1 ¶ 2; Pl. 56.1 ¶ 1.) Plaintiff is 50 years old. (See Record at 208.)
The Policy provides, in relevant part, that a claimant will be paid monthly benefits if the claimant becomes and remains "[d]isabled while insured under the Policy," has been "under the Regular Care of a Physician," and "submit[s] proof of loss satisfactory to" AI Life, the Policy's claim administrator. (Record at 4, 6, 12; AI Life 56.1 ¶ 3; Pl. 56.1 ¶ 7.) "Disabled" means "prevented by ... accidental bodily injury[,] sickness[, or] Mental Illness" "from performing some, but not all, of the essential duties of [the claimant's] or any occupation." (Record at 8; Pl. 56.1 ¶ 5.)
Plaintiffs Benefits Claim, dated February 13, 2008, identified his disability as
In the months that followed Plaintiffs February 13, 2008 filing, several physicians who had treated Plaintiff in 2007 and/or 2008—including Manuel Astruc, M.D., Plaintiffs psychiatrist; Lionel D. Alboum, M.D., a specialist in "Holistic Medicine" and "Internal Medicine"; and Dr. Mustafa—submitted Plaintiffs medical records and their written opinions as to Plaintiffs disability and medical issues to AI Life. (See Record at 993-94, 1375, 1407, 1716.) For example, Dr. Astruc stated, in a letter submitted to AI Life, dated April 9, 2008, that Plaintiff, whom Dr. Astruc had treated since March 2004, is unable to work in his occupation or to perform work of any kind "due to poisoning by Heavy Metal." (Record at 1407; see AI Life 56.1 ¶ 27; Pl. 56.1 ¶ 25.) By letter dated April 22, 2008, Dr. Alboum stated that Plaintiffs weak "emotional and cognitive functioning" is "definitely related" to his April 25, 2001 Hepatitis A and B inoculations, and renders him "unable to return to work in his present occupation, nor perform work in any regard." (Record at 993-94 (emphasis in original); see Pl. 56.1 ¶ 23.) Dr. Alboum reported that several hours after receiving the inoculations in 2001, Plaintiff experienced a "myriad of symptoms," including nausea, fever, and cognitive dysfunction. (Record at 993.) Dr. Alboum explained that Plaintiff has "[o]ver the past several years ... undertaken extensive Chelation Therapy" to try to remove from his system the mercury from those inoculations. (Record at 993; see AI Life 56.1 ¶ 29.) Dr. Alboum also described the "intermittent nature" of mercury poisoning symptoms which "leads to [Plaintiff] having periods of weeks to years of being highly functional, interspersed with periods of being non-productive," with "the productive periods becom[ing] shorter, fewer and farther between." (Record at 994 (emphases omitted); see AI Life 56.1 ¶ 30; Pl. 56.1 ¶ 23.)
By letter dated April 22, 2008, Dr. Mustafa confirmed the conclusions of Drs. Astruc and Alboum. (See Record at 1617.) She described Plaintiff as requiring
In support of his Benefits Claim, Plaintiff also submitted a "Neuropsychological Evaluation" completed in 2006 by Maria Deinzer Lifrak, Ph.D., a board certified clinical neuropsychologist ("Lifrak Evaluation"). (See Record at 948-63.) The Lifrak Evaluation states that approximately four hours after the April 2001 Hepatitis A and Hepatitis B vaccines were administered, Plaintiff "began to have symptoms including elevated temperature, redness on the face and chest, hives on the arm, tingling sensation in the arms and chest, fatigue, aching knees and chest, nausea, loss of appetite, and infection on the face," and that "[s]ince that time [Plaintiff] has continued to experience a variety of very unpleasant symptoms," including "fatigue, disturbances of cognition, and erratic mood states." (Record at 948.) Laboratory tests completed on March 21, 2002 and "a mineral analysis of hair samples" on March 18, 2005 showed, respectively, "extremely" and "very high range[s] of mercury," which, according to the Lifrak Evaluation, "are attributed to the Thimerosal mercury compound, contained in the hepatitis B vaccine." (Record at 948-49.) A "urine analysis" on March 28, 2002 similarly "showed mercury levels that were twice the maximum expected level." (Record at 949.) The Lifrak Evaluation concluded that "it appears that [Plaintiff] has suffered toxic mercury poisoning" as a "reaction to hepatitis A and B inoculations on 4/25/01." (Record at 963.)
By letter dated June 6, 2008, AI Life expressed to Plaintiff "regret that we have been unable to make a claim determination within the expected time frame," and asked Plaintiff to "give us additional time to complete our evaluation of your claim." (Record at 157; see Pl. 56.1 ¶ 30.) AI Life also stated that "[w]e expect to complete our evaluation ... and provide you with a benefit determination ... before" July 7, 2008 (Record at 157), but failed to identify the reason for the delay or the basis for the extension request (see Pl. 56.1 ¶ 30.) In fact, AI Life did not provide its benefits determination until October 24, 2008. (See Record at 1250-53.)
Hartman, a clinical psychologist and neuropsychologist retained by AI Life to review the Benefits Claim, issued his report, dated June 27, 2008 ("Hartman Report"). (See Record at 1188, 1487-92.) In preparing his report, Hartman never examined Plaintiff or interviewed Plaintiff's treating physicians. (See Pl. 56.1 ¶ 34; AI Life's Response to Pl. 56.1, dated Oct. 8, 2010 ("AI Life 56.1 Response"), ¶ 34.) And, after opining as to "the presence of exaggeration/malingering in [Plaintiff]," Hartman concluded that Plaintiff's "[s]ymptoms are more consistent with malingering and possibly unrelated psychopathology
The Hartman Report appears to have been "reviewed for clarity and comprehensiveness" by an independent claims consultant, Lori Cohen, Ph.D., before being issued, and, even after the June 27, 2008 date appearing on the Report, the Hartman Report was further modified at the request of managers at AI Life. (Record at 1017-19.)
On July 10, 2008, three days after AI Life's stated deadline for a determination of July 7, 2008 (see Record at 157), Plaintiff wrote to AI Life inquiring about the status of his Benefits Claim (see Record at 1672; Pl. 56.1 ¶ 31.) On July 15, 2008, AI Life provided Drs. Alboum, Lifrak, and Mustafa with copies of the Hartman Report, and requested their reactions to the Hartman Report within 10 days. (See Record at 154-56; Pl. 56.1 ¶ 36.) By letter to Plaintiff dated July 17, 2008, AI Life (again without explanation) requested "additional time" to evaluate the Benefits Claim, stating that it expected to provide Plaintiff with a determination by August 15, 2008.
On July 25, 2008, Dr. Alboum submitted additional medical records in support of the Benefits Claim, including the results of two different urinalyses conducted in 2002. (See Record at 984-88.) Dr. Alboum sought to rebut, point-by-point, the Hartman Report conclusions. (See Record at 977-81.) Dr. Alboum stated, among other things, that Hartman "is not a physician, is not up to date with respect to the literature or recent developments concerning Thimerosal exposure in adults, and ... ignores the important issue of the amount of Thimerosal received [by Plaintiff in April 2001] from the multi-dose vial which was in excess of amounts administered in [the] controlled medical studies" cited in the Hartman Report. (Record at 979.) Dr. Alboum also contended that the Hartman Report failed to explain "the significant results evidenced in the hair tests..., corroborated by both urine testing an[d] even a test of other factors that provide [a]n indication of the heavy metal poisoning." (Record at 979, 984-88.) Dr. Alboum reaffirmed that "the Hep[atitis] B vaccine has been noted [in the medical literature] ... as damaging brain cells thus resulting in a multitude of dysfunctions within the body, and these account for [Plaintiffs] observed (`psychological') symptoms." (Record at 979.)
By letter dated July 27, 2008, Dr. Lifrak also disagreed with the Hartman Report's conclusions. (See Record at 1512; AI Life 56.1 ¶ 43.)
On August 4, 2008, AI Life informed Plaintiff by letter that Plaintiff had
On August 22, 2008, Hartman issued a response to Dr. Alboum's July 25, 2008 submission, conceding "[t]he theoretical capability of mercury to neurotoxically poison an adult," but affirming that "[m]y conclusions ... remain the same" because "the amount of mercury ... [in the] hepatitis vaccination can[not] be reasonably connected to the panoply of symptoms alleged by [Plaintiff]." (Record at 1547-48.) Hartman also stated that Doctors Data, Inc., the company that performed Plaintiffs urine analyses on March 28, 2002 (see Record at 984), has been listed on the website, www.quackwatch.com, as performing "nonstandard laboratory tests" that "artificially raise[mercury levels] by using a Mercury scavenger (chelating agent)." (Record at 1544; see AI Life ¶¶ 53-54.) And, despite AI Life's concession on August 4, 2008 that Plaintiff was "disabled ... due to severe symptoms" (Record at 149), Hartman stood by his previous claim of "malingering," finding a "strong[] suggest[ion]" that Plaintiff has "intentional[ly] attempt[ed] to exaggerate [his] symptoms" (Record at 1546-48.) At oral argument, counsel for AI Life acknowledged that Hartman's insistence on "malingering" is inconsistent with AI Life's finding of a disability. (See Hr'g Tr. at 25:16-19 (Q: "[T]he defense disavows [Hartman's conclusion] by acknowledging that it's not malingering and that there is a disability. Right?" A: "Yes. We made the disability [determination].").)
On August 27, 2008, an AI Life claims examiner conceded in an e-mail message to coworkers, "I'm just not sure of [the] content [of Hartman's August 22, 2008 response]. It's a little harsh, but I'm not sure if it would need to be changed." (Record at 1070.) At oral argument, the Court questioned counsel for AI Life as to this and similar AI Life e-mails:
(Hr'g Tr. at 5:3-6:19.)
On September 23, October 1, and October 10, 2008, Plaintiff's treating physicians (again) voiced their disagreement with the Hartman Report. (See Record at 947, 968-75, 1575-77.) Dr. Alboum contended that the tests Hartman questioned are "standard for such medical instances of heavy metal poisoning," and that Hartman failed to account for all "three independent tests[, i.e., one hair test and two urinalyses]—using three different methodologies—done on this patient all provid[ing] clear evidence of mercury poisoning post vaccinations." (Record at 969 (emphases omitted), 976-88; see Pl.'s Response to AI Life 56.1, dated Sept. 23, 2010 ("Pl. 56.1 Response"), ¶ 31.) Dr. Alboum restated his conclusion that Plaintiff's "symptoms are due to damage (from the vaccines/Thimerosal) to physiological functioning within the brain and body." (Record at 971.) Dr. Astruc also confirmed "to a high degree of medical certainty" "that the nature of [Plaintiff's] disability is the result of an
On October 10, 2008, Dr. Leikin, a medical toxicologist, submitted, at AI Life's request, a one page "Peer Review" of the Hartman Report and of Plaintiffs medical records. (AI Life 56.1 ¶ 61; see Record at 1571; Pl. 56.1 ¶ 50.) Dr. Leikin concluded that he "do[es] not believe that thimerisol [sic] toxicity is a plausible explanation for [Plaintiff's] symptoms." (Record at 1571.) He said, "[t]here is no study that I know of that affirmatively associates thimerisol [sic] exposure to development of cognitive issues in adults." (Record at 1571.)
By letter dated October 24, 2008, AI Life (finally) determined Plaintiffs Benefits Claim ("Claim Determination"), acknowledging at the outset that "we did determine that you were disabled due to your severe cognitive impairment." (Record at 1250.) At the same time, AI Life stated, "we have determined that your symptoms [are not] the result of organic mercury toxicity or any other physical reason. Therefore, we find that your disabling symptoms of cognitive impairment would fall under the [24 month] limitation[] of the Mental Illness aspect of the Policy. (Record at 1250.)
AI Life advised Plaintiff that any appeal of the Claim Determination must be "in writing within 180 days," in which case AI Life "will review the matter again, and notify you of our decision no later than 45 days following the receipt of your written request." (Record at 1253.)
On April 21, 2009, Plaintiff appealed AI Life's Claim Determination. (See Record at 924-27.) In support of his appeal, Plaintiff presented a report, dated April 6, 2009, from Mark R. Geier, M.D., Ph.D., a research scientist at the National Institutes of Health, who confirmed that "the Hepatitis A and Hepatitis B vaccines that [Plaintiff] received on [April 25, 2001] caused or significantly contributed to, or
By letter dated June 4, 2009, AI Life informed Plaintiff that AI Life's earlier notification of Plaintiffs right to appeal "was premature as [Plaintiffs] claim remains open and approved for payment" until October 23, 2010. (Record at 184, 242; see AI Life 56.1 ¶ 78; Pl. 56.1 ¶ 82.) By letter dated June 10, 2009, Plaintiffs counsel responded that Plaintiff "has already submitted sufficient documentation from numerous physicians to fully support a physically-disabling condition," "no further documentation is necessary," and "there is no reason whatsoever to postpone the appeal any longer." (Record at 232-33; see AI Life 56.1 ¶ 80; Pl. 56.1 ¶ 83.) By letter dated July 2, 2009, AI Life responded that because "you ... will not be forwarding any additional documentation to support your position that [Plaintiff] suffers from a physically disabling condition, we will honor your request to appeal the decision to impose the limitation." (Record at 222; see AI Life 56.1 ¶ 82; Pl. 56.1 ¶ 84.)
On August 4, 2009, AI Life modified its position yet again, informing Plaintiff that in order to complete the appeal, "we believe it is appropriate to arrange for an Independent Medical Examination (`IME') to be conducted by a physician Board Certified in Neuropsychology." (Record at 206; see AI Life 56.1 ¶ 83.) On August 14, 2009, Plaintiffs counsel responded that "[t]he IME you are requesting can in no way shed any light on the effects of the vaccines/Thimerosal (organic mercury) toxicity, which occurred over eight years ago." (Record at 195-96.) On August 18, 2009, AI Life stated that, upon review of Plaintiffs August 14, 2009 letter, AI Life "would like to look at other alternatives," including a review of Plaintiffs medical records at the time of his April 25, 2001 inoculation.
On August 26, 2009, AI Life denied Plaintiffs appeal on the ground that it "did not find sufficient evidence to substantiate that [Plaintiffs] disability is based on a physical condition." (Record at 187.) AI Life concluded that "[w]ithout any medical documentation prior to April 2001 and the period immediately thereafter, we are unable to determine a baseline of [Plaintiffs] health condition" at the time of administration of the Hepatitis A and B vaccines, and, thus, the "Mental Illness Benefits provision was appropriately applied to his claim following the medical review." (Record at 188.) Although AI Life had committed to an appeal decision "no later than 45 days following the receipt of [Plaintiffs] written request" (Record at 1253), AI Life, in fact, issued its determination 127 days later (see Record at 924).
"In an action under [ERISA's civil enforcement provision], the district court conducts arbitrary-and-capricious review of ERISA-fund administrators' discretionary
The Court's standard of review "inherently includes some review of the quality and quantity of the medical evidence and the opinions on both sides of the issues. Otherwise, courts would be rendered to nothing more than rubber stamps for any plan administrator's decision as long as the plan was able to find a single piece of evidence—no matter how obscure or untrustworthy—to support a denial of a claim for ERISA benefits." McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citing Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774-75 (7th Cir.2003)): see Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208, 212-16 (2d Cir.2006); Magee v. Metro. Life Ins. Co., 632 F.Supp.2d 308, 317 (S.D.N.Y.2009) ("[S]uch a review must include a searching and careful determination as to whether the conclusion reached by the administrator in view of the facts before it was indeed rational and not arbitrary." (internal quotation marks omitted)).
"Where the decision to grant or deny ERISA benefits is reviewed for abuse of discretion, a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply." Mohamed v. Sanofi-Aventis Pharm., No. 06 Civ. 1504, 2009 WL 4975260, at *9 (S.D.N.Y. Dec. 22, 2009) (quoting Anderson v. Sotheby's, Inc., No. 04 Civ. 8180, 2006 WL 1722576, at *15 (S.D.N.Y. June 22, 2006)); see Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). "The district court sits in effect as an appellate court to determine whether the denial of ERISA benefits was arbitrary and capricious." Mohamed, 2009 WL 4975260, at *9 (internal quotation marks and alterations omitted). "[A] district court may decide a case by summary bench trial [i.e., without live testimony and exclusively on the record before it,] upon stipulation of the parties as long as the parties have willingly foregone their right to a full trial." Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir.1998); see Brach's Confections, Inc. v. McDougall, 320 F.Supp.2d 726, 727 (N.D.Ill.2004).
Because AI Life concedes that Plaintiff is "disabled from [his] occupation due to severe symptoms," the narrow issue for determination is whether AI Life's conclusion that Plaintiffs disability falls under the Policy's Mental Illness limitation and is not "the result of organic mercury toxicity or any other physical reason" is arbitrary and capricious.
Plaintiff presented to AI Life substantial evidence that his disability was organic or physical in nature and was caused by mercury poisoning from vaccines administered to him in April 2001. This evidence includes the following:
The plethora of medical records and opinions submitted by Plaintiff's treating physicians, all of whom determined that Plaintiff suffers from vaccine/thimerosal poisoning, "provide[s] substantial medical evidence establishing that [P]laintiff's disability is due to a physical condition." (Pl. Surreply at 4; see Pl. Mem. at 13.) Under ERISA, "the decision-maker must consider the evidence presented by both parties prior to reaching and rendering his decision." Neely v. Pension Trust Fund, No. 00 Civ.2013, 2004 WL 2851792, at *10 (E.D.N.Y. Dec. 8, 2004) (quoting Grossmuller v. Int'l Union, United Auto. Aerospace & Agric. Implement Workers of Am., 715 F.2d 853, 858 n. 5 (3d Cir.1983)).
AI Life relied almost exclusively upon Hartman and Leikin in rejecting Plaintiff's Benefits Claim. (See Record at 1188, 1489-1492, 1571.) Neither of AI Life's experts examined Plaintiff; neither interviewed Plaintiff's treating physicians. (See Pl. 56.1 ¶ 34; AI Life 56.1 Response ¶ 34.) And, neither sought to examine Plaintiff's 2001 medical records, which AI Life did not even request until August 18, 2009, i.e., more than 10 months after Hartman and Leikin had completed their review of Plaintiff's Benefits Claim. See footnote 7 above.
Hartman, who is not a medical doctor (see Hr'g Tr. at 25:22-23), concluded— erroneously in the Court's view—that "[t]here is no information provided in the record that would substantiate significant mercury exposure in [Plaintiff]" (Record at 1490.) He also concluded, also incorrectly in the Court's view, that "[t]here is no body of scientific literature to suggest that thimerosal and/or hepatitis vaccinations could or might have caused or contributed to [Plaintiff's] claimed symptoms." (Record at 1188.) Hartman also found that Plaintiff's "[s]ymptoms are more consistent with malingering and possibly unrelated psychopathology than heavy metal poisoning" (Record at 1492), a conclusion that was thoroughly discredited and abandoned by AI Life at oral argument (see Hr'g Tr. at 25:16-19 (Q: "[T]he defense disavows [Hartman's conclusion] by acknowledging that it's not malingering and that there is a disability. Right?" A: "Yes. We made the disability [determination].").) And, even after AI Life conceded that Plaintiff was "disabled" on August 4, 2008 (Record at 149), Hartman curiously devoted much of his August 22, 2008 report to Plaintiff's alleged "exaggeration in the context of potential secondary gains of work avoidance and compensation" (Record at 1546-48.)
In a terse, one page "report," Dr. Jerold B. Leikin, a medical doctor, found no "clinical evidence for mercury toxicity" in Plaintiff, and stated that even if toxicity did exist, "no study that I know of . . . affirmatively associates thimerisol [sic] exposure to development of cognitive issues in adults."
Neither Hartman nor Leikin accounts for the diagnosis of Dr. Astruc who "s[aw] no evidence of a psychiatric illness" or of "malingering." (Record at 1577.) Nor do
As noted, counsel for AI Life conceded at oral argument that AI Life disavowed the conclusion of Hartman that Plaintiff may be "malingering." (Hr'g Tr. at 3:21-4:1 (Q: "You don't stand by that determination. . . . Isn't that right?" A: "That's correct, your Honor. And I would just note that AI Life did not make a decision or determination that [Plaintiff] was malingering."); Record at 1492); see also footnote 3 above; Magee, 632 F.Supp.2d at 320 (denial of benefits arbitrary and capricious where "[defendant's] decision . . . is contradicted by [its] own [expert's] conclusion"). Counsel also sought to distance AI Life from Hartman's use of "harsh language" in his August 22, 2008 report, which resulted in "revisions or amendments" to Hartman's work. (Hr'g Tr. at 5:3-6:19 (Q: "[T]here are some internal emails which suggest that Dr. Hartman's report was . . . `reviewed' . . . [,] `adjusted,'. . . `amended' . . . or `changed,' before it was issued. . . . Have you ever thought about that?" . . . A: "Yes, your Honor. It's a good question. . . . Dr. Hartman's [August 22, 2008] report was a little bit harsh in addressing th[e] criticisms from Dr. Alboum, and, you know, to maintain the decorum of professionalism, [AI Life] personnel asked Dr. Hartman to maybe calm down with the language a bit. That's the extent of those revisions or amendments that occurred." Q: "Calm down to say what instead of what?" A: "Well, that we don't know, your Honor. . . . It was just harsh language. . . . And that's just not the image that [AI Life] wanted to portray.").)
Nor do Hartman and Leikin account for the fact that the Social Security Administration, in February 2009, approved Plaintiffs claim for long term disability benefits, finding that Plaintiff "became disabled under our rules on July 31, 2007." (Record at 1166; see Pl. 56.1 ¶ 67); Glenn v. Met-Life, 461 F.3d 660, 669 (6th Cir.2006) ("Glenn I"), affd, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) ("That [defendant] apparently failed to consider the Social Security Administration's finding of disability in reaching its own determination of disability does not render the decision arbitrary per se, but it is obviously a significant factor to be considered upon review."); Magee, 632 F.Supp.2d at 320.
AI Life refers to Plaintiff's refusal of its August 4, 2009 request for an IME, a request made some 8 years after Plaintiff's alleged injury and 18 months after his Benefits Claim was filed. (See AI Life Mem. at 14, 21; AI Life Reply at 1,6.) Plaintiff refused the request because it was made (more than 9 months) after AI Life's denial of his claim on October 24, 2008. (See AI Life Mem. at 14, 21; AI Life Reply at 1, 6.) The only case AI Life cites for the contention that Plaintiff's refusal was "unjustified and unreasonable" (AI Life Reply at 6) holds that such refusal does not justify defendant's finding of nondisability because "it presents no evidence regarding whether [p]laintiff was or was not actually disabled," Kochenderfer v. Reliance Standard Life Ins. Co., No. 06 Civ. 620, 2009 WL 4722831, at *13 (S.D.Cal. Dec. 4, 2009).
As Dr. Alboum stated, "[i]t seems . . . that no amount of evidence could ever convince" AI Life that Plaintiff's disability
First, despite Plaintiff's substantial submissions, including laboratory testing and multiple, uniform diagnoses from treating physicians confirming mercury poisoning from the vaccines, Hartman could find "no information provided in the record that would substantiate significant mercury exposure in [Plaintiff]." (Record at 1490.) Similarly, Leikin "d[id] not find any clinical evidence for organic mercury toxicity either by history, physical exam or laboratory analysis." (Record at 1571.) Hartman and Leikin appear to have overlooked the results of at least two laboratory analyses of Plaintiff's urine and hair in 2002 and 2005 which indicate "`heavy metal intoxication' " and "very high" levels of mercury, and Plaintiff's immediate negative reaction to the 2001 vaccines hours after receiving them. See pages 16-17 above. They also overlooked the diagnoses of no less than five of Plaintiff's doctors (four of whom examined Plaintiff) of "injury or trauma to [Plaintiff's] brain due to the Hepatitis A and Hepatitis B Vaccination" of April 2001. See pages 16-17 above; (Record at 1490 n. 3) ("Evaluation of mercury exposure in an individual patient ideally includes the presenting history, physical examination, consideration of the differential diagnosis, and mercury analysis of blood . . . [,] urine," and "hair specimens."). AI Life's experts "close[d their] eyes to the evidence." (Record at 975.)
AI Life's "wholesale embrace" of Hartman and Leikin's incomplete reports in the face of numerous contrary reports submitted by Plaintiff's treating physicians is indicative of AI Life's abuse of discretion. See McCauley, 551 F.3d at 136-37 (where defendant "seized upon" one report and "ignored" another); Durakovic, 609 F.3d at 140-41 ("[Defendant's] consideration of [Plaintiff's] claim . . . was onesided."). Although courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physicians, "[p]lan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003); see Troy v. Unum Life Ins. Co. of Am., No. 03 Civ. 9975, 2006 WL 846355, at *10 (S.D.N.Y. Mar. 31, 2006).
Second, as noted, Hartman incorrectly concluded that "[t]here is no body of scientific literature to suggest that thimerosal and/or hepatitis vaccinations could or might have caused or contributed to [Plaintiff's] claimed symptoms." (Record at 1188.) And, Dr. Leikin asserted that "[t]here is no study that I know of that affirmatively associates thimerisol [sic] exposure to development of organic mercury toxicity." (Record at 1571.) In his 12 page report in support of Plaintiff's Benefits Claim, Dr. Geier discussed 18 scientific and medical articles whose "consensus . . . is that from a few days to several weeks following hepatitis B immunization, vaccine recipients are at increased risk for developing neurological symptoms. It has sometimes been observed [that] these neurological symptoms following immunization may be severe, and result in the patient experiencing a chronic syndrome that may last for many months or years following immunization."
Neither Hartman nor Leikin mentioned any of the articles discussed by Dr. Geier (see Record at 936-45) or submitted by Plaintiff (see Record at 260-617, 634-96, 731-912, 1260-1363), even though those articles led Dr. Geier to conclude that "one or both of the [2001] vaccines caused the medical conditions that occurred post-vaccinations" (Record at 936.) The Court is troubled by AI Life's wholesale rejection of the medical literature offered in support of Plaintiffs Benefits Claim, notwithstanding Hartman's statement that "1 consider myself reasonably current and well informed about th[e] literature" in this area. (Record at 1546.) In Dr. Alboum's words, AI Life's experts' "lack of awareness (or intentional disregard or oversight) of the[se] documented symptoms associated with mercury poisoning . . . is inexcusable." (Record at 979); see Neely, 2004 WL 2851792, at *10 ("[T]he law in the Second Circuit requires that, the plan's fiduciary must consider any and all pertinent information reasonably available to him." (emphasis and internal quotation marks omitted)); Glenn I, 461 F.3d at 669 (where defendant "did not indicate that it had considered [important evidence from plaintiffs expert], not did it provide a reason for rejecting it"); Kalish, 419 F.3d at 510-11.
For the first time at oral argument, AI Life advanced two seemingly new (and surprisingly restrictive) interpretations of the Policy language, which support the view that AI Life's Claim Determination was arbitrary and capricious. First, defense counsel suggested that Plaintiffs Benefits Claim was rejected because Plaintiff participated in AI Life's "cheaper plan," and that, Plaintiffs employer, Rensselaer "could have purchased a more expensive plan." (Hr'g Tr. at 13:17-20 ("[Rensselaer] could have purchased a more expensive plan that didn't have a 24-month limitation. They could have done that. But they chose to go with a cheaper plan with a limitation. So the plan is the plan. They purchased this language. The language is plain."); see Hr'g Tr. at 17:21-23 (COURT: "What's a monthly premium for this cheap plan?" DEF. COUNSEL: "Your Honor, I don't know what that is."); Hr'g Tr. at 18:17-23 (COURT: "I'm just trying to figure out, what does [cheap] mean in this case. I think you used it in the context that the coverage is cheap. But I'm curious to know if the premium is also cheap. If it's 5 bucks a month, then I'd say, you know, you get what you pay for. But . . . I'm trying to figure out what you mean by `cheap.'").)
Second, AI Life argued that "[i]t doesn't matter what caused the mental illness under the [Policy]. Even if the mental illness was caused by mercury toxicity as a result of inoculations, it's still mental illness [presumably in contrast to physical illness]," and subject to the Policy's 24 month limitation on benefits. (Hr'g Tr. at 10:17-20.) But, according to AI Life's earlier stated rationale for denying Plaintiffs Benefits Claim, the cause of Plaintiffs disability does matter: "[W]e have determined that your symptoms would not be the result of organic mercury toxicity or any other physical reason. Therefore, we find that your [disability] would fall under the limitations of the Mental Illness aspect of [the Policy]." (Record at 1250.) AI
If AI Life believed that, under the Policy, "mental illness . . . caused by mercury toxicity . . . [is] still mental illness" (Hr'g Tr. at 10:18-20), then AI Life's analysis of Plaintiff's Benefits Claim could have ended on August 4, 2008, when it found Plaintiff to be "disabled" due to his severe cognitive impairments. (Record at 149.) Instead, AI Life spent the next year determining whether Plaintiff's "symptoms are the result of [m]ercury [p]oisoning." (Record at 149.) There appears to have been "a predetermined decision to deny benefits." Caudill v. Sears Transition Pay Plan, 714 F.Supp.2d 728, 742 (E.D.Mich.2010) ("The utilization of this methodology was improper.").
AI Life recognizes that "the definition of `mental illness' does have an exception. If the mental illness is caused by demonstrable structural brain damage, then it's not classified as mental illness." (Hr'g Tr. at 14:1-4; see Record at 6.) Plaintiff presented substantial evidence that his debilitating symptoms were the result of "structural brain damage." (Record at 6.) Plaintiff claimed benefits for "traumatic brain injury/neurological damage" in his February 2008 Benefits Claim (Record at 993), and Plaintiff presented diagnoses from two of his treating physicians, Drs. Alboum and Astruc, of Plaintiff's "damag[ed] brain cells," "damage (from the vaccines/Thimerosal) to physiological functioning within the brain and body," and "injury or trauma to his brain" (Record at 979, 971, 1577.)
AI Life's pattern of delay and mismanagement of Plaintiff's claim "further establishes that [its] determination is arbitrary and capricious." (Pl. Mem. at 20-21.) Plaintiff presents a lengthy and convincing list of irregularities in AI Life's determination, including, among other things, the following: (i) "numerous [unexplained] extensions" and missed deadlines for reaching a decision; (ii) apparent "changes" to
AI Life responds (unpersuasively) that there were "no procedural irregularities in AI Life's review" and that AI Life "conducted itself with the utmost professionalism." (AI Life Reply at 9-10; see Hr'g Tr. at 7:2-15 (COURT: "The fact that there was so much slippage in the dates, does that suggest that your client also believed that there might have been a good chance that this is a physical disability?" DEF. COUNSEL: "No. No, your Honor. I think what that reveals is that AI Life was deliberative in its decision. Rather than make a snap decision based on incomplete information, [AI Life] agreed with [Plaintiff] that he's entitled to benefits [for his disability].").)
"The Plan's procedural irregularities here were serious, had a connection to the substantive decision reached, and call into question the integrity of the benefits-denial decision itself." Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 244 (1st Cir.2006); see Culley v. Liberty Life Assurance Co. of Bos., No. 05 Civ. 2279, 2007 WL 2769649, at *5 (D.N.J. Sept. 21, 2007), aff'd, 339 Fed.Appx. 240 (3d Cir.2009). As noted, "[a]nother example of a procedural anomaly is when an insurance company relies on the opinions of its own non-treating physicians over the opinions of Plaintiffs treating physicians." Harrison v. Prudential Ins. Co. of Am., 543 F.Supp.2d 411, 421-22 (E.D.Pa.2008); see McCauley, 551 F.3d at 136-37; Durakovic, 609 F.3d at 140-41.
"Taken in combination, these [above described irregularities] are plainly exacerbated by [AI Life's] conflict of interest, as both administrator and payor" under the Policy. McCauley, 551 F.3d at 136. AI Life concedes that such a conflict exists in this case. (See AI Life Mem. at 3 ("AI Life is the claim administrator of the Plan."); AI Life Reply at 7 ("AI Life does pay benefits owed under the Plan.").) "[A]
"[N]otwithstanding th[e] deferential posture" of this case, the Court concludes that, on the Record before it, Defendant's denial of benefits was arbitrary and capricious because unsupported by substantial evidence. Demirovic, 467 F.3d at 212; see McCauley, 551 F.3d at 132; McDonald, 347 F.3d at 172-73; Hackett, 315 F.3d at 774-75; Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.2001) ("[D]eferential review is not no review, and deference need not be abject." (internal quotation marks omitted)): see also Moorman v. Rohm & Haas Long Term Disability Plan, No. 04 Civ. 3689, 2006 WL 1083603, at *7 (E.D.Pa. Apr. 20, 2006) (defendant's summary judgment motion granted only where there was "
"Where the decision to deny benefits is unreasonable because it was not based on substantial evidence, as was the case here, reversal, rather than remand, is appropriate." Rappa v. Conn. Gen. Life Ins. Co., No. 06 Civ. 2285, 2007 WL 4373949, at *12 (E.D.N.Y. Dec. 11, 2007)
For the foregoing reasons, AI Life's Motion for Summary Judgment [# 22] is denied and Plaintiff's Cross-Motion for Summary Judgment [# 25] is granted. The Clerk of the Court is respectfully requested to close this case.
