JAMES K. BREDAR, District Judge.
Helene Clarke ("Plaintiff") brought this suit against Unum Life Insurance Company of America and the Pearson, Inc. Employee Long Term Disability Plan ("Defendants") seeking reinstatement of long-term disability benefits, payment of back-benefits, and court costs pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), and the imposition of administrative penalties pursuant to 29 C.F.R. § 2560.502-1(g) et seq. Now pending before the Court are Defendants' Motion for Summary Judgment (ECF No. 51) and Plaintiff's Cross-motion for summary judgment (ECF No. 52).
Plaintiff was formerly employed by Pearson, Inc. where she worked as a Strategic Account Executive, selling teacher training materials to school districts in Maryland, Virginia, Pennsylvania, and the District of Columbia. As a Pearson employee, Plaintiff was eligible for coverage under Pearson's Long Term Disability Plan ("the Plan"), which is insured and administered by Defendant Unum Life Insurance Company.
During her employment with Pearson, Plaintiff was involved in two car accidents. The first occurred on February 21, 2006, when Plaintiff was sideswiped by an 18 wheel tractor trailer on her way to meet with clients in Washington, D.C. She subsequently began to experience pain, stiffness, numbness, and tingling in her neck, shoulders, and hands. (Dr. Pribadi Consultation Report, FU-CL-LTD-000367 — SEALED). The second accident occurred about two years later, on January 24, 2008, when Plaintiff's car was struck by another car as she was leaving a client school in Prince George's County. Id.
About eight months after the second accident, on August 26, 2008, Plaintiff filed a claim for long-term disability ("LTD") benefits with Unum, citing disc displacement and osteopenia of the lumbar spine. On November 11, 2008, Unum notified Plaintiff by letter that her claim had been approved. (FU-CL-LTD-000768 — SEALED). The letter advised Plaintiff, however, that she was required to continue to meet the Plan's definition of disability in order to receive continuing benefits, and that UNUM would periodically request medical and vocational documentation to establish her continuing eligibility.
Unum began paying benefits on September 14, 2008, but it continued to evaluate Plaintiff's claim. First, Unum referred Plaintiff's file to its Senior Vocational Rehabilitation Consultant, Norma Parras-Potenzo, for an occupational assessment. Ms. Parras-Potenzo consulted the Enhanced Dictionary of Occupational Titles ("DOT") and determined that Plaintiff's occupation was most consistent with the title of Sales Representative (Semi-Technical Products). The DOT indicated that the exertional demands of that occupation were as follows: "lifting, carrying, pushing, pulling 20 lbs. occasionally, frequently up to 10 lbs. or negligible amount constantly"; "frequent reaching, handling, fingering, talking, hearing, near acuity"; "occasional stooping, keyboard use, far acuity"; and "frequent periods of sitting, occasional standing and walking during the workday." (Parras-Potenzo Review I, FU-CL-LTD-000440-442 — SEALED). Ms. Parras-Potenzo also later determined that "[d]riving would be a material duty of this occupation, the claimant would need to drive to meet with clients/accounts assigned and sell products/services." (Parras-Potenzo Occupational Review II, FU-CL-LTD-000533 — SEALED).
A few weeks later, on October 6, 2008, Unum sent Senior Field Representative Paul Weiss, ALHC, to interview Plaintiff at her home. (Weiss Field Report, FU-CL-LTD-000631-639 — SEALED). Mr. Weiss spoke with Plaintiff for about 95 minutes on various topics, including her condition and daily activities. He noted that she did not appear to him to be in any physical distress or to be suffering from any cognitive difficulties. On the contrary, he observed that she appeared "animated," that her answers were "on point and thorough," and that she maintained her own claim file at home, which to him evinced a "well-organized person." Id.
A few weeks later, on October 21, 2008, Unum's on-site physician, Matthew Hine, M.D., Ph.D., conducted a review of Plaintiff's
Id. at 000687-694.
Dr. Hine stated that in his opinion the test results and diagnoses in Plaintiff's file would not be expected to result in significant functional impairment. He concluded that "within a reasonable degree of medical certainty," Plaintiff had the capacity to perform full-time light exertional work as of March of 2008. On the same day, Dr. Hine spoke with Dr. Wong, Plaintiff's treating physician, who stated that she concurred that Plaintiff was capable of full-time work at the light exertional level. Id. at 000685.
Shortly thereafter, Unum received an Attending Physician Statement from Dr. Clifford Hinkes, M.D. (Hinkes APS, FU-CL-LTD-000698-000701 — SEALED). In the report, Dr. Hinkes diagnosed Plaintiff with carpal tunnel syndrome, cervical spondyliosis, and radiculopathy. He opined that she could return to work full-time (performing physical tasks consistent with the "light" demand category). However, in sections of the APS form marked "RESTRICTIONS" and "LIMITATIONS", Dr. Hinkes wrote "limited driving, lifting, etc." Id. at 000699.
When Unum received Dr. Hinkes' report, they forwarded it to Dr. Hine for his review. (Hine Review II, FU-CL-LTD-000730-732 — SEALED). Dr. Hine noted that Dr. Hinkes' only limitation was "limited, driving, lifting, etc." and commented that it was "somewhat vague." Id. at 000732. He then stated that he assumed Plaintiff's occupation only involved driving up to one third of an eight-hour work day, in which case he did not "see an activity restriction from an AP that precludes regular duty." Id.
A few days later, on October 30, 2008, Ms. Parras-Potenzo contacted Plaintiff's employer to gather more information about the amount of traveling involved in her occupation. She concluded that Plaintiff would be traveling up to 70% of the time, sometimes driving for up to half of a work day, and that work days could be longer than eight hours. (Parras-Potenzo Review II, FU-CL-LTD-000733-34 — SEALED).
On November 3, 2008, Ms. Parras-Potenzo conducted further research on the travel demands of Plaintiff's occupation and reported that, when working in Washington, D.C., Plaintiff would drive only intermittently throughout the day, but that she would drive for up to two hours continuously one way when visiting clients elsewhere in Maryland, and six to eight hours when traveling to Pennsylvania or Virginia, plus travel time between different clients in those states. (Parras-Potenzo Review III, FU-CL-LTD-000739 — SEALED).
When this information was forwarded to Dr. Hine, he responded that he was "unable to state with reasonable medical certainty" that Plaintiff could drive six to eight hours per day. (Dr. Hine Review IV, FU-CL-LTD-000738 — SEALED).
Later in November of 2008, Ms. Parras-Potenzo raised the possibility of providing Plaintiff with "return-to-work services" and "vocational assistance," suggesting that Plaintiff's sales experience might make her employable in another occupation. She indicated that she planned to speak with Plaintiff regarding her carpal tunnel syndrome and determine how it affected her keyboarding abilities. (Parras-Potenzo Notes, FU-CL-LTD-000801 — SEALED). On December 1, 2008, Ms. Parras-Potenzo spoke with Plaintiff about return-to-work services. Her notes of the conversation read, in pertinent part, as follows:
(Parras-Potenzo Notes, FU-CL-LTD-000809 — SEALED). Ms. Parras-Potenzo and Plaintiff agreed to follow up on their discussion in three months to assess whether Plaintiff had made enough progress that she could begin RTW services.
About six weeks later, on January 12, 2009, another Unum representative, Micah Kilton, called Plaintiff for a telephone interview in which he asked her a number of questions about her condition, treatment
About a month later, on February 17, 2009, Ms. Parras-Potenzo contacted Plaintiff to follow up on their discussion about return-to-work. Ms. Parras-Potenzo inquired whether Plaintiff had noticed any improvement in her condition. Plaintiff responded that she was still in considerable pain, which she described as 8/10, but that it was better than when she was driving for several hours a day and doing computer work. Ms. Parras-Potenzo suggested that Plaintiff try using ergonomic devices to allow her to do computer work more comfortably. She stated she would send Plaintiff an ergonomic catalog and follow up in two to three weeks. (Parras-Potenzo Notes, FU-CL-LTD-000931-932 — SEALED).
The following day, Dr. Wong submitted a letter to Unum which stated: "This letter is to verify that HELENE CLARKE has physical impairments that prevent her from engaging in substantial full time gainful activity. After consultation with her physical therapist this is expected to be indefinite in duration." (Wong Letter, FU-CL-LTD-000950-951 — SEALED).
The record does not indicate what happened during the following six weeks, and it is unclear whether Plaintiff and Ms. Parras-Potenzo had any further communications regarding RTW services. But, on March 31, Unum began to conduct video surveillance on Plaintiff, which it continued through April 2. The video footage is not on record, and the parties disagree as to precisely what it shows. Defendants characterize the video as follows:
(Def.s' Mem. at 30, ECF No. 51). Plaintiff claims, however, that the activity recorded in the video surveillance is actually quite minimal and that it does not support Defendants' characterizations. Specifically, Plaintiff describes the content of the footage as follows:
Date Time Activity
3/31/09 6 AM — 12 PM No activity
4/1/09 (FCE Appointment Surveillance)
8:20 AM Claimant walks slowly to her vehicle with
rolling case Takes nearly two minutes to exit
vehicle
9:25 AM Walks in/out of PT office to put something
in her car
11:36 AM Claimant exchanges item with another woman who is also waiting outside PT office, then walks back to office 12:40 PM Claimant goes to car with rolling case and places it into car Returns to office and back to car 1:25 PM Returns home 4/2/09 12:56 PM Claimant followed to a parking garage, no other footage 2:34 PM Claimant returning to her home
(Pl.'s Mem./Resp. at 36, ECF No. 52).
On April 1, 2009, while the surveillance was underway, Unum referred Plaintiff for a functional capacity evaluation ("FCE") to determine the extent to which her condition would affect her ability to work. The evaluation was performed by Mylah Garlington, P.T. of the Heartland Physical Therapy Provider Network. Based on Plaintiff's performance on a number of physical tasks, Ms. Garlington determined that Plaintiff was capable of working full-time in the "light" physical demand category. She noted that although Plaintiff exhibited pain with certain tasks, some of which she was unable to complete, she believed Plaintiff was restricting her effort and not allowing her full capacity to be measured. (Garlington FCE, FU-CL-LTD-001152-1159 — SEALED).
A few days later, on April 3, 2009, Unum referred Plaintiff's file to Senior Clinical Consultant Paul Burgos, M.A., A.L.H.C., for review. Specifically, Unum requested Mr. Burgos to evaluate information submitted by Plaintiff's psychologist, Dr. Harvey Sweetbaum, and determine whether, in combination with the rest of the medical evidence on file, that information supported any "impairment in global functioning." (Burgos Review, FU-CL-LTD-001127-1128 — SEALED). Mr. Burgos noted that Dr. Sweetbaum had diagnosed Plaintiff with Adjustment Disorder with mixed depressive and anxiety features, and that he had indicated a GAF score of 68. Mr. Burgos stated that this score reflected "only some mild symptoms or some difficulty in functioning but generally functioning pretty well." Id. He also noted, however, that it was unclear whether Dr. Sweetbaum was continuing to treat plaintiff or whether he was certifying a psychiatric impairment or disability. Mr. Burgos therefore called Dr. Sweetbaum on the phone for clarification of his opinion. Dr. Sweetbaum stated that he had not treated Plaintiff since December 3, 2008, and declined to certify disability based on Plaintiff's mental symptoms. (Burgos Notes, FU-CL-LTD-001194-1195 — SEALED).
Several weeks later, on April 27, 2009, Plaintiff's physical therapist, Chinh Le, P.T., submitted a letter to Unum expressing his disagreement with the results of the FCE. Among other things, he stated that plaintiff could, in fact, only sit for about an hour at a time without experiencing progressively worsening pain in her neck and arm, and that this prevented her from driving long distances. He reported that Plaintiff's pain at that time, without work, was 6-7/10, but that he believed Plaintiff's symptoms would regress if she returned to work full-time and that her
About a week later, on May 4, 2009, Unum requested an additional opinion from Ms. Garlington as to whether Plaintiff had the functional capacity to work full-time in the light physical demand category if her work days sometimes exceeded eight hours. Ms. Garlington opined that Plaintiff could work more than eight hours a day but that she should not drive more than eight hours per day. (Garlington FCE II, FU-CL-LTD-001238 — SEALED).
Two days later, on May 6, 2009, Unum referred Plaintiff's file to Dr. Stephen Leverett, D.O., for further medical review. Dr. Leverett opined that Plaintiff's medical records did not indicate that she would be unable to perform the duties of her occupation, which included traveling up to two thirds of the day, constant sitting, frequent standing and walking, and occasionally lifting or carrying up to 20 pounds. He remarked that the record suggested that Plaintiff had experienced improvement from physical therapy, even though she continued to complain of pain, and that the FCE probably measured Plaintiff's minimum functional capacity (rather than her maximum capacity) because of her self-limiting behavior. He opined that if the FCE operator [Ms. Garlington] found that Plaintiff could work for more than eight hours a day, then "it would appear no additional medical steps are indicated, as the FCE assessment was essentially one that portrayed the minimal physical functional capacity of the Insured." (FU-CLLTD-001251-001257 — SEALED).
The same day, Dr. Leverett spoke with Dr. Wong regarding her opinion of Plaintiff's condition. Apparently, Dr. Wong stated that she wished to defer assessment of Plaintiff's work capacity to Mr. Le. Dr. Leverett's notes indicate that he and Dr. Wong also discussed Plaintiff's alleged inconsistency and self-limiting behavior during the FCE, the recommendations of Mr. Le, Dr. Wong's understanding of "job" versus "occupation" in the national economy, the vocational consultations between Plaintiff and Unum, and Dr. Wong's stated desire to defer disability assessment to Mr. Le. (Leverett Notes I, FU-CL-LTD-001268-1269 — SEALED). Dr. Leverett also contacted Mr. Le to discuss the same topics, as well as Mr. Le's disagreement with the FCE results. (Leverett Notes II, FU-CL-LTD-001276-1277 — SEALED). The record does not reflect what Dr. Leverett, Dr. Wong, or Mr. Le said on any of these subjects during the conversations.
Two days later, on May 8, 2009, Ms. Parras-Potenzo performed another vocational review in light of the results of the FCE. She stated that it was reasonable to expect that although Plaintiff's occupation required extensive driving and travel, she should be able to perform her duties without having to drive more than eight hours a day. She suggested, for instance, that Plaintiff could fly for long trips, or drive to a location and stay overnight before driving back. (Parras-Potenzo Review IV, FU-CL-LTD-001280-1281 — SEALED).
About a week later, on May 14, 2009, Unum notified Plaintiff that it was terminating her benefits because she no longer met the definition of "disabled" under the Plan. The termination letter stated that Unum's reasons for its decision were: (1) "the lack of clarity of the cause of [Plaintiff's] pain complaints; (2) the fact that [Plaintiff] was working for some time following the January 24, 2008 accident; (3) a personal visit to [Plaintiff's] home on October 6, 2008 by Paul Weiss, ALHC ("Mr. Weiss") wherein [Plaintiff] did not exhibit
After receiving the termination letter, Plaintiff retained counsel and, on November 6, 2009, filed an appeal. Plaintiff's counsel submitted a letter to Unum which disputed its decision to terminate benefits and provided additional evidence of Plaintiff's disability. The letter also included volumes of medical literature about various conditions as well as documents relating to Unum's claims handling procedures and financial status. (FU-CL-LTD-001384-1472 — SEALED).
A number of the items Plaintiff submitted on appeal dealt specifically with her functional capacity. First, Plaintiff submitted the results of a Standard Hand Testing Evaluation performed by Carlos Martinez, P.T. (FU-CL-LTD-004440-4441 — SEALED). Mr. Martinez reported the following: on the Hand Tool Dexterity Test, Plaintiff scored between the 1st and 10th percentiles, and experienced "difficulty manipulating the tools, nuts, bolts, washers and screws," and showed an "inability to work with tools and manipulate smaller work related items"; on the Purdue Pegboard Test, Plaintiff "scored below normative population averages for assembly jobs, general factory work, production work, electronic production work, female hourly production workers, maintenance and service employees and sewing machine operator [sic]"; on the Minnesota Dexterity Test, Plaintiff scored "below normative population averages"; and, Plaintiff scored below the first percentile in all tests "with regard to moving small objects various distances" and in the 0.6th percentile on the O'Connor Tweezer Dexterity Test. Mr. Martinez concluded that Plaintiff "does not present with the ability to perform jobs or tasks that require manual dexterity," that she "can not sustain the necessary hand use requirements to perform work as required in the workplace," and that she "did not demonstrate the ability to sustain any employment due to the substantial restrictions in her hand use abilities." Id.
Second, Plaintiff submitted the results of a neuropsychological evaluation by Dr. Rick Parente. (FU-CL-LTD-004208-4224 — SEALED). Dr. Parente's report states that he performed a battery of tests on the Plaintiff, mostly related to her cognitive abilities, but also including some emotional and physical testing. The majority of Plaintiff's scores were in the "average range." Dr. Parente noted, however, that Plaintiff demonstrated some difficulty with certain tasks involving concentration and memory. He opined that Plaintiff's difficulty concentrating would
Finally, Plaintiff submitted a response from Mr. Le to a set of "interrogatories," in which he stated the following: that Plaintiff suffered from cervical radiculopathy, muscle spasms, and "weakness"; that his examinations found her to have mild weakness in her hands; that she was able to care for her personal needs "with difficulty"; that she could lift six to ten pounds on an occasional basis and five pounds regularly; that she could not complete a normal eight hour work day in a job requiring frequent hand use; and that he concurred with the opinions of Mr. Martinez and Dr. Parente. (Le Interrogatory Answers, FU-CL-LD-002501-2507 — SEALED).
Unum referred Plaintiff's supplemental materials to several of its own consultants and physicians for review. First, on December 10, 2009, Unum requested a review from Senior Clinical Consultant Ann Murphy, R.N., L.N.C.C. (Murphy Review, FU-CL-LTD-002955-002964 — SEALED). Nurse Murphy reviewed and summarized the extensive records in Plaintiff's file and concluded that "[a]ll conditions individually and in combination, including impact on functional capacity, have been considered and do not support the severity of pain and loss of function as reported by the claimant." Id. She deferred evaluation of Plaintiff's functional capacity to a doctor.
Next, Unum referred Plaintiff's file to Dr. Andrew Krouskop, M.D. (Krouskop Review I, FU-CL-LTD 002968-2979 — SEALED). Dr. Krouskop reviewed Plaintiff's file and concluded that she was limited to lifting about 25 to 30 pounds, but that the evidence did not support ongoing inabilities to function. He relied largely on the fact that Plaintiff's upper extremity strength was measured as normal in most of her physical tests. He opined that the weakness found by Mr. Le was probably a result of Plaintiff's self-limitation. He also observed that there was no evidence of continuing adverse side effects of medications, and noted that Plaintiff had not been placed on different kinds of pain medication or referred to a pain specialist, as would be expected for someone who complained of chronic pain.
Later, Dr. Krouskop conducted a second review to specifically address Plaintiff's contention that she was affected by a combination of physical and cognitive limitations, i.e., cervical pain, carpal tunnel syndrome, medication side effects, amnestic syndrome, and adjustment disorder. (Krouskop Review II, FU-CL-LTD 004225-004231 — SEALED). He observed that there was a conflict between the results of Plaintiff's hand testing, which showed very low functioning, and the results of the neurorehabilitation review by Dr. Parente, in which he noted that she had no difficulty with tests of finger dexterity. Dr. Krouskop also noted that the hand tests did not include any validity testing and opined that they were therefore entitled to little weight. He concluded that there was nothing in Plaintiff's file that would cause him to change his original opinion.
Next, Unum forwarded Dr. Parente's neurorehabilitation report to its clinical neuropsychologist, D. Malcolm Spica, Ph. D., for review. Dr. Spica opined that the report did not support a finding of disability based on cognitive limitations, largely because Dr. Parente did not conduct any "validity" or "personality/psychological" testing. Dr. Spica therefore found the report to be unreliable. He also noted, however, that even accepting the validity of the tests, Plaintiff's scores were essentially normal and did not suggest any cognitive impairment. He also stated that he had contacted Dr. Parente to request the
Dr. Parente produced a responsive letter, indicating that he in fact did send Dr. Spica the raw data from his tests. He also disagreed with Dr. Spica's criticisms. First, he opined that there were no known reliable tests of "symptom validity." Second, he explained that, in his experience, patients with cognitive dysfunction often have largely normal test scores. He further pointed out that Dr. Spica did not indicate what pattern of scores would have been required to support the diagnosis. Lastly, he asserted that he had no financial connection to Memoryzine and that his work for them was strictly on a volunteer basis. (Parente Letter, FU-CL-LTD004400-4405 — SEALED).
After receiving Dr. Spica's review, Unum referred Dr. Parente's report to another neuropsychologist, Steven Van De Mark, Ph.D., for a second opinion. Dr. Van De Mark concurred with Dr. Spica. (Van De Mark Review, FU-CL-LTD-004269-4275 — SEALED).
On February 17, 2010, Unum issued a decision, denying Plaintiff's appeal. Unum's written opinion explained that it had concluded, largely based on the FCE and surveillance footage, that Plaintiff was not restricted from performing the duties of her occupation. It further explained that its own doctors had reviewed the opinions of Dr. Wong and Mr. Le and found that they were not supported by objective evidence. Further, it noted that Unum's reviewers found the hand tests and the neurorehabilitation report to be largely unreliable because of the lack of symptom validity testing, Plaintiff's mostly normal performance on the cognitive evaluations, the inconsistencies between the two reports, and the apparent mismatch between the abilities tested by the hand test and the requirements of Plaintiff's occupation. The opinion also noted that Plaintiff's counsel had requested copies of any internal medical reviews that Unum conducted prior to its appeal decision and stated that that request was denied, as Unum was not obligated to provide those reviews until after the appeal process was complete. (Appeal Decision, FU-CL-LTD-004283-4289 — SEALED).
In July of 2010, Plaintiff and Defendants participated in an unsuccessful mediation session with the Honorable John A. McAuliffe. Shortly thereafter, Plaintiff sent Unum a letter alleging that Ms. Garlington had improperly administered the FCE. Her main allegations were as follows: (1) that Ms. Garlington insisted that Plaintiff attempt to lift a wooden box over her head even after Plaintiff said several times that she couldn't; (2) that Ms. Garlington "smiled, as if she were pleased with [Plaintiff's] pain" when Plaintiff finally dropped the box on her own face; (3) that Ms. Garlington stopped part-way through the exam to watch the news for about half an hour; and (4) that Ms. Garlington chose an inaccurate job description that did not reflect the physical demands of Plaintiff's real occupation. (Plaintiff's Letter Re: FCE, FU-CL-LTD004427-44300). After receiving a copy of the letter from Unum, Ms. Garlington responded with a letter of her own, denying the allegations. (Garlington Response to Plaintiff, FU-CL-LTD004648-4649 — SEALED).
Defendants state that Unum considered Plaintiff's letter even though the appeal was already finished, but that, after reading
On October 26, 2010, Plaintiff filed the instant suit in this Court. Discovery has now been completed and both sides have moved for summary judgment.
This case presents two issues for the Court's review: (1) whether Unum denied Plaintiff a "full and fair review" of its initial decision to terminate her long-term disability benefits; and (2) whether Unum's ultimate decision to terminate her benefits constituted an abuse of discretion.
ERISA requires plan administrators to provide participants with a "full and fair review" of any adverse benefits determination. 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1(f)-(g). Plaintiff claims that Unum denied her such a review because it refused to provide her with copies of the medical and clinical reviews of her file that its physicians conducted in response to her appeal. On that basis, she requests that the Court impose administrative sanctions on Unum pursuant to 29 C.F.R. § 2560.503-1(g). The Court must address this issue first because, if the Court determines that Plaintiff is correct, then the proper course would be to remand the case to Unum. Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154, 159 (4th Cir.1993). As explained below, however, the Court finds that Unum's review procedures were adequate.
Plaintiff argues that Unum denied her a "full and fair review" because: (1) it allegedly put forward new reasons on appeal for terminating her benefits, to which she had no opportunity to respond; and (2) it relied on new evidence, in the form of medical and clinical reviews of her file, which it refused to disclose during the appeals process. The Court finds both of these arguments to be without merit. The first argument takes an incorrect view of the facts. The chronological account of the evidence produced by both sides in this case, as set out in the "Background" section of this memorandum, shows quite clearly that Unum's proffered reason for terminating Plaintiff's benefits was the same at every stage, i.e., that she had failed to provide it with evidence that she continued to be restricted from performing the duties of her regular occupation. The only new material in Unum's decision on appeal consisted of reviews by its physicians of new evidence that Plaintiff herself submitted in support of her appeal. Plaintiff's second argument, that Unum was obligated to give her access to these reviews and an opportunity to rebut them before it made its final decision, takes an incorrect view of the law. This Court has
Accordingly, neither Unum's reliance on internal reviews of Plaintiff's medical file, including the evidence she submitted on appeal, nor its refusal to supply Plaintiff or her counsel with those reviews during the appeal process deprived Plaintiff of a "full and fair review." Therefore, Defendants' motion for summary judgment will be GRANTED IN PART, and Plaintiff's motion DENIED IN PART, with respect to Plaintiff's demand for statutory penalties under 29 C.F.R. § 2560.503-1(g).
The real thrust of Plaintiff's claim, however, is that she is entitled to continued long-term disability benefits under the Plan and that Unum wrongly terminated those benefits. Although Plaintiff raises numerous issues in her pleadings, including multiple irrelevant accusations regarding Unum's business practices and financial status, the Court finds that there is one issue that is dispositive. Defendants stated that issue quite correctly when they wrote that "[t]he essence of [Plaintiff's] complaint[] was, at all times, pain and its effect upon the travel and driving requirements of her occupation." (Def.'s Reply/Resp. at 13, ECF No. 53). Such is the Court's assessment as well. As further explained below, although the Court finds that Unum's decision was reasonable in most respects, it nevertheless finds that Unum abused its discretion when it determined that Plaintiff was capable of performing the driving requirements of her regular occupation.
Where, as here, an ERISA plan vests the plan administrator with discretionary authority to interpret plan terms and make eligibility determinations, a court may review the administrator's decision only for abuse of discretion. Williams v. Metro. Life Ins. Co., 609 F.3d 622, 629-30 (4th Cir.2010). Under that standard, the reviewing court will not disturb the administrator's decision so long as it is reasonable, "even if [the court] would have come to a contrary conclusion independently." Id. at 630. A decision is reasonable if it is the product of a "deliberate, principled reasoning process" and is "supported by substantial evidence." Id. (citing Guthrie v. Nat'l Rural Elec. Coop. Assoc. Long Term Disability Plan, 509 F.3d 644, 651 (4th Cir.2007); Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.1997)). Substantial evidence is that "which a reasoning mind would accept as sufficient to support a particular conclusion," and "consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197, 208 (4th Cir.1984).
The Plan defines disability, in pertinent part, as being "limited from performing the material and substantial duties of your regular occupation due to your sickness or injury." (Policy, FU-CL-LTD-000073). In order to determine whether a claimant is entitled to benefits, then, Unum must first determine what the claimant's "regular occupation" is and what the "material and substantial duties" of that occupation are. Plaintiff argues at length that Unum failed to properly assess the demands of her occupation. Again, however, the point is moot because both sides agree that Plaintiff's regular occupation required her at times to drive up to six or eight hours a day. Since this point proves to be dispositive, any remaining disputes about other aspects of Unum's occupational assessment are immaterial.
As is typical of ERISA plans, the Plan in this case requires Plaintiff to provide Unum with evidence of her continuing disability in order to qualify for continued benefits. (Policy at 7, FU-CL-LTD-00079) ("
The Fourth Circuit has previously implied that a claimant's initial burden of proof under an ERISA plan is relatively light. That is, it can be met simply by providing competent evidence that the claimant suffers from a serious medical condition which prevents her from working at her occupation. See Smith v. Metropolitan Life Ins. Co., 274 Fed.Appx. 251, 256 (4th Cir.2008) (unpublished) (plaintiff carried initial burden of proof by submitting evidence of a severe medical condition, his own statement that the condition prevented him from working, and the statements of his treating physicians that he was unable to return to work). Importantly, in this respect, a claimant's subjective assessment
The Court easily finds that Plaintiff met her initial burden of providing Unum with competent proof of her disability. First, the record is replete with medical evidence that Plaintiff suffers from degenerative disc disease, disc herniation and bulging, osteopenia of the lumbar spine, radiculopathy, and chronic pain. Second, Plaintiff herself has consistently maintained that her pain prevents her from driving for long periods of time, as she was required to do in her regular occupation. Third, Plaintiff's treating physical therapist, Chinh Le, opined that Plaintiff would be unable to return to work full time without experiencing extreme pain and, in particular, the her pain prevented her from driving for long periods of time. Finally, and most significantly, while Plaintiff's other treating physicians and Unum's medical reviewers largely concurred that Plaintiff was capable of full time work in the light physical demand category, several of them also agreed that she was limited in the amount of driving she could do during a work day. Dr. Hinkes noted vaguely that Plaintiff's driving would have to be "limited," while Dr. Hughes stated more specifically that she should not drive more than an hour at a time. Unum's own on-site physician, Dr. Hine, agreed, opining that Plaintiff could "realistically" be expected to drive for 30 to 60 minutes at a time and that Plaintiff would likely report significant symptoms after driving for even two hours continuously.
The Court finds that this evidence was sufficient to meet Plaintiff's initial burden of establishing that she was disabled from performing the driving requirements of her regular occupation.
Since Plaintiff met her initial burden of proof, Unum was required to identify substantial contrary evidence to justify terminating her benefits. Even giving Unum's decision all of the deference that is due to it, the Court simply cannot find any such evidence in the record.
Defendants identify the bases of Unum's initial termination decision as: "(1) four medical reviews; (2) six vocational reviews; (3) an interview ...; (4) two clinical reviews; (5) three days of surveillance and; (6) a Functional Capacity Evaluation." Unum's decision on appeal was based in part on the same evidence and, in addition, on: "(1) three medical reviews by a physician and nurse; (2) two neuropsychologic reviews; and (3) a follow up with the physical therapist who conducted the FCE." (Def.s' Mem. 3, ECF No. 51). The Court has already detailed this evidence in the "Background" section of this memorandum but will review it again briefly with specific reference to the issue of Plaintiff's driving restrictions.
First, much of the evidence Defendants cite is obviously not relevant to Plaintiff's driving capacity. Specifically, the field interview, the neuropsychological reviews, and the clinical reviews by Dr. Burgos with regard to Plaintiff's mental health treatment clearly have no bearing on the issue, and there is thus no need for the Court to address them.
Second, the "six vocational reviews" that Defendants trumpet do nothing to support
Third, many of the medical reviews Defendants cite actually support Plaintiff's claim that she cannot do the amount of driving required by her regular occupation, and the reviews that suggest the contrary are insubstantial. Specifically, out of the initial four medical reviews, three were by Dr. Hine, whose ultimate conclusion was that Plaintiff could drive at most for an hour at a time, and no more than four hours total in a work day. The fourth review, by Dr. Leverett, described Plaintiff's occupation as involving driving only up to "66% of the day." Sixty-six percent of an eight hour work day is approximately 5 hours and 17 minutes, well short of the six to eight hours Plaintiff would have to drive when traveling to Virginia or Pennsylvania. Dr. Leverett did later amend his report to state that no further "medical steps" were necessary because the FCE assessed Plaintiff as capable of returning to her occupation full-time, which might imply that he accepted Ms. Garlington's opinion that Plaintiff could drive up to eight hours a day. He does not appear, however, to have formed any medical opinion of his own on that issue, nor does he explain his basis for adopting Ms. Garlington's opinion, if that is indeed what he did. Further, none of the medical reviews on appeal say anything about Plaintiff's driving capacity. Nurse Murphy's review did not address Plaintiff's functional capacity at all, and offered only the conclusory opinion that the record did not support Plaintiff's reported pain levels. Dr. Krouskop's first review explores Plaintiff's medical history in detail, noting many inconsistencies with respect to her pain levels and functional restrictions, and concludes that "Considering the claimant's conditions in aggregate, no additional restriction are supported." It does not address Plaintiff's ability to drive long distances or acknowledge that this is part of her occupation. Presumably, Unum inferred that Dr. Krouskop's opinion that "no additional restrictions are supported" included driving, but the Court cannot accept such an inference as substantial evidence. Furthermore, Dr. Krouskop's review contains an inconsistency of its own in that, while he opines that Plaintiff can return to work full time, he also writes in the "Conclusion" section of his report that "Wong's and Mr. Le's restrictions are not supported ... Dr. Hughes [sic] restrictions are supported." (Krouskop Review I, FU-CL-LTD-002976 — SEALED) (emphasis added). But, according to Dr. Hine's review, Dr. Hughes' restrictions included limiting Plaintiff's driving to one hour at a time. (Hine Review I, FU-CL-LTD-000693 — SEALED). Finally, Dr. Krouskop's second review dealt only with Plaintiff's alleged cognitive impairments, which are clearly not relevant.
Fourth, the FCE provides only insubstantial evidence that Plaintiff can drive for the required lengths of time. In fact, the initial evaluation did not purport to assess Plaintiff's driving capacity at all. It was only when Unum requested an opinion from Ms. Garlington as to whether Plaintiff could work more than eight hours a day that she addressed the issue of driving time, stating that Plaintiff's driving should be limited to eight hours per day. There does not appear to be any explanation in her report, however, of how she reached the conclusion that Plaintiff could drive for eight hours per day. It is certainly plausible that she might have formed this opinion based on the FCE results with respect to measures of Plaintiff's range of motion and the length of time that she can sit; but, conjecture about how an otherwise unsupported opinion may have been formed is not substantial evidence.
Thus, the investigator observed Plaintiff driving for 15 minutes on the first day of surveillance, 29 minutes on the second day, and 13 minutes on the third day. Even by the most deferential standard, the Court cannot seriously entertain Defendants' contention that these were "prolonged periods of time." Furthermore, while Defendants state that Plaintiff did not display "any outward signs of pain or discomfort" during the other activities the investigator observed,
For these reasons, the Court concludes that there is no substantial evidence in the record that Plaintiff is able to drive for the six to eight hours a day that her regular occupation sometimes requires. Unum therefore abused its discretion in terminating her long-term disability benefits. Defendants' motion for summary judgment will therefore be DENIED IN PART, and Plaintiff's motion for summary judgment GRANTED IN PART, with respect to Plaintiff's claim of entitlement to long-term disability benefits under the Plan.
Accordingly, an order shall issue GRANTING IN PART and DENYING IN PART Defendants' Motion for Summary Judgment (ECF No. 51) and GRANTING IN PART and DENYING IN PART Plaintiff's Motion for Summary Judgment (ECF No. 52) as set out in this memorandum.
In accordance with the previous memorandum, it is ORDERED that:
Id. at 342-43.
