MARCIA MORALES HOWARD, District Judge.
This case, brought pursuant to the Employment Retirement Income Security Act of 1974 ("ERISA"), involves a plan administrator's termination of a plan claimant's long term disability benefits. It is before the Court on cross-motions for summary judgment. Specifically pending are Defendant Hartford Life and Accident Company's ("Hartford") Dispositive Motion For Summary Judgment With Statement Of Undisputed Material Facts And Memorandum Of Law in Support Thereof (Doc. 208; Hartford Motion for Summary Judgment), and Plaintiff's [Kimberly Howard] Response In Opposition to Defendant's Dispositive Motion For Summary Judgment (Doc. 222; Howard Response); and Plaintiff's Dispositive Motion For Summary Judgment (Doc. 219; Howard Motion for Summary Judgment), which is opposed by Hartford in Defendant's Memorandum Of Law In Opposition To Plaintiff's Dispositive Motion For Summary Judgment. (Doc. 223; Hartford Response). Additionally pending are Plaintiff's Motion In Limine To Exclude Extra Record Evidence Attacking The Character Of Plaintiff's Witness, Sandra Carter, In Dispositive Motion Briefings (Doc. 211; Howard Motion in Limine), to which Hartford responded in Defendant's Memorandum Of Law In Opposition To Plaintiff's "Motion In Limine" (Doc. 220; Hartford Response to Motion In Limine); as well as Defendant's Motion To Strike Exhibits To Plaintiff's Motion For Summary Judgment, With Memorandum Of Law In Support Thereof (Doc. 221; Hartford Motion in Limine)
In April of 2005, Plaintiff worked for Fidelity National Financial, Inc. ("Fidelity"), where she held the position of Business Strategy Manager I. Complaint ¶¶ 5, 12, 13; (Doc. 59; Answer ¶¶ 5, 12, 13;
During her employment with Fidelity, Howard was a participant in the Fidelity National Financial, Inc. Group Benefit Plan (Doc. 1-1; Plan),
Plan at 15, 17. Thus, pursuant to the provisions of the Plan, for the first 24 months of a claimed disability, eligibility for LTD benefits was conditioned on the claimant's submission of proof that she was prevented by illness or injury from performing, on a full-time basis, "one or more of the Essential Duties of Your Occupation."
On April 2, 2005, Howard's treating physician, internal medicine specialist Dr. Gary Decker, wrote to Hartford stating that he has been treating Howard for "many years", and in his opinion "she should qualify for total disability" based upon her "multiple debilities." AR at H669.
Id. Howard ceased working at Fidelity on April 28, 2005, due to a diagnosis of lupus and fibromyalgia. See AR at H220, H1498.
Dr. Decker reported in a May 3, 2005 Attending Physician's Statement of Disability that Howard was 5′6″ tall and weighed "approximately 323." AR at H663-64; H1274-75. His "Primary diagnosis" was "Lupus, Fibromyalgia, severe joint pain," and his "Secondary diagnosis(es)" was "Depression, short-term memory loss, asthma." Dr. Decker stated that his physical examination of Howard found "decreased ROM [range of motion] all extremities, memory deficit, joint pain." Id. [He noted that he began treating Howard for these conditions in April, 2002.] Dr. Decker listed Howard's "Impairment" as follows:
Id. However, he indicated Howard had no psychiatric impairment and was "Essentially good functioning in all areas." Id. Dr. Decker opined that Howard "became unable to work due to this impairment" on April 29, 2005, and that the limitations are "permanent." Id. A second "Attending Physician's Statement of Continued Disability" completed by Dr. Decker on May 18, 2005, listed his primary diagnosis as Lupus, and secondary diagnosis as Fibromyalgia. He also noted "Severe Joint Pain, Asthma and Depression." H654-55. The Attending Physician's Statement lists her upcoming doctor or testing appointments, and her "Treatment Plan" as "Medications
Id. at H655. He stated that "Patient is totally and permanently disabled." Id. at H654.
Based upon the information submitted, Hartford approved Howard's claim for Short Term Disability ("STD") benefits on May 20, 2005, retroactive to the beginning of the month. Pursuant to the terms of the Plan, the STD benefits would expire six months later on November 3, 2005. See id. at H470, H475, H1280; see also Complaint ¶ 14; Answer ¶ 14.
On June 17, 2005, a Hartford claim examiner noted that, based upon the medical records received, Howard's "[c]laim has high LTD potential." AR at H1283. Hartford later directed some follow-up questions to Dr. Decker on July 27, 2005, regarding Howard's health and limitations. Id. at H572 ("07/27/05 Questionnaire"). In the 07/27/05 Questionnaire, Hartford asked:
Dr. Decker responded:
Id. Dr. Decker also acknowledged that "per Rheumatology," lab work fails to support a diagnosis of lupus. Id. at H572. Nevertheless, he said that Howard's fibromyalgia prohibits her from working in sedentary to light positions because of "Severe joint pain" in her hips and hands, "short term memory loss and loss of concentration," and "lower extremity swelling." He explained that he determined Howard's restrictions through "observation." Id.
During this time frame, Howard was also being examined by rheumatologist Dr. Reza M. Taba. AR at H391-395. On August 4, 2005, Dr. Taba reported that Howard presented complaining of aches and pains, difficulty sleeping, and fatigue. He noted that "work up for cardiac status has been negative in the past." Id. at H391. After examining Howard's shoulders, elbow, wrists, hands, hip, knees and ankle joints for tenderness and swelling, range of motion, stability, crepitus, warmth, and erythmia, Dr. Taba concluded, "[t]hese joints were found to be without abnormality." Id. at H391. While he observed that Howard "appears to be in mild pain," Dr. Taba noted no rash, mouth ulcers, heart problems, abdominal tenderness, swelling in the extremities, or rash, swelling or redness of the skin. Id. at H392. Dr. Taba did find tenderness to palpation in Howard's shoulders, middle and lower spine, and elbow, but also observed a full range of motion of the cervical spine. Id. Overall, Dr. Taba opined, "Ms. Howard appears to be doing fairly well with the problems as reviewed. There is no obvious sign of inflammatory type arthritis at this time." He instructed Howard to exercise, maintain current medications, and return for a follow up appointment in one month to review blood lab results. Id. at H393.
Id. at H390. Dr. Taba wrote that he had a "long discussion" with Howard about fibromyalgia, and referred her to Brooks Rehabilitation Hospital for "rehab." "She has a great deal of difficulty going back to work, however she was told that with fibromyalgia it would be beneficial for the patient to be active in the society." Id. at H390.
Hartford forwarded a second Questionnaire to Dr. Decker on August 31, 2005, asking Dr. Decker to reconcile Dr. Taba's finding that Howard was doing "fairly well" and questioned how the physician's findings of "spasms, severe joint pain" were determined. AR at H534. Dr. Decker responded that he made his determination "after multiple exams," based upon Howard's reports that she was unable to dress herself, and brush her hair "due to severe hand and wrist pain." He left blank and did not respond to Hartford's question about whether Howard's cognitive abilities had ever been tested, stating only that he determined Howard's cognitive abilities were impaired "with office conversation," and that at times, she was "confused, unable to remember short term events." Id. Dr. Decker also reported that he had determined that Howard has "severe problems" based on "Patient reports" of pain. Id.; see also H535-H536.
Dr. Decker submitted an Attending Physician's Statement of Continued Disability, dated October 27, 2005, in which he wrote that his primary diagnosis of Howard was lupus and fibromyalgia, with a secondary diagnosis of severe joint pain, asthma, and depression. See AR at H481-484; see also id. at H221; H478. Dr. Decker opined that Howard had severe limitations in standing, walking, sitting, lifting and carrying, reaching overhead, driving, and using a keyboard ("No more than 1 hr. — causes swelling and severe joint pain"), and that she was unable to push or pull. Id. at H482. He also completed a "Physical Capacities Evaluation Form," in which he stated that Howard not was not capable of 1) sitting for more than one hour at a time; 2) standing for more than five minutes; or 3) walking more than "short distances." Id. at H483. In support of her application for LTD benefits, Howard also submitted her own typewritten statement in which she reported that she was specifically limited and unable to perform the functions of her job, because of the following impairments:
AR at H474-H480.
On November 1, 2005, Hartford advised Howard that her claim for LTD benefits had been approved effective November 4, 2005, and that she had been approved through November 10, 2005. AR at H470. Hartford required Howard to attend an Independent Medical Examination ("IME") scheduled for her on November 11, 2005, and paid for by Hartford. Hartford notified Howard her LTD benefits would be extended beyond the IME pending its results. Id.
Id. at H471.
On November 11, 2005, Dr. Mark Hoffman performed an IME on Howard. AR at H456-64. Dr. Hoffman noted that Howard was a 43 year old woman, height 5'6", and though she would not get on the scale, he estimated her weight to be approximately 300 pounds. Id. at H461. Dr. Hoffman reviewed Howard's medical records, and previous test results. He noted that Howard had a "normal ANA rheumatoid factor" in 2003, and March 2005 blood tests, and that her most recent ANA test in August 2005 "was positive." He recounted three x-rays, which were all "negative"; a magnetic resonance image ("MRI") of the right hip which showed "no abnormalities"; a pulmonary function test in 2003 which showed a "`Moderate decrease in gas exchange'"; a "normal" electrocardiogram in January 2005; a "negative" carotid doppler report dated January 2005; and a May 2005 pelvic ultrasound which only showed evidence of a previous hysterectomy. Id. at H460. Dr. Hoffman observed that while Howard entered the examination room with a cane, she was able to get on and off the examination table independently. Id. at H461. Dr. Hoffman conducted a physical examination of Howard, and noted tenderness on palpation of her neck, spine, back, upper sternum, one elbow, shoulders, hands, and right hip. He said that "[s]he had full range of motion of the joints, except in the left shoulder [describing limitations] ..., and right hip range of motion was mildly limited in all directions due to pain." Dr. Hoffman recorded that Howard had clear lungs and a normal heart beat. He did not observe a muscle spasm "due to adipose tissue," but did observe "mild diffuse swelling of the lower extremities and hands." He observed that Howard was alert, cooperative, had normal speech, and became tearful during the evaluation. Id.
Id. at H462. Dr. Hoffman noted that his objective findings "were limited to edema in the hands and distal lower extremities, as well as a malar rash over her face." Id. at H462. Hoffman wrote:
Id. at H463. Dr. Hoffman recommended the following "work and activity restrictions:"
Id. at H462. Based on the results of the IME, Hartford extended Howard's LTD benefits beyond November 2005. Id. at H455, H1323-24.
Howard continued to see Dr. Decker for follow-up visits. On February 6, 2006, he reported that Howard "continues to have severe pain in her joints and muscles," "experienced frequent palpitations," and reported pain in her left shoulder "due to pain which radiates from her cervical spine and shoulder down the left arm" creating a "sensation of parathesia and heat in the extremity." AR at H401. A March 1, 2006 MRI of Howard's left shoulder suggested "probable impingement with degeneration or partial-thickness tear of ... [two] tendons." H362. An MRI of Howard's spine, also on March 1, 2006, revealed mild, slight or small bulging discs at four locations. H372-H375.
On August 7, 2006, Dr. Decker saw Howard for a follow-up visit. He reported that Howard "is having a great deal of difficulty with her joints particularly her upper extremities and cervical spine.... She is still requiring pain control." AR at H1262. Three months later, on November 13, 2006, Dr. Decker noted that Howard "continues to have pain in her left shoulder" and "pedal edema," swelling in the feet and ankles. Id. at H1260. On November 30, 2006, Dr. Decker reported that Howard "continues to have a number of symptoms related to her fibromyalgia. She also has difficulty with sleep, tachycardia [fast heart rate], chest pains, and bladder." Id. at H1258.
The Administrative Record reflects that Howard also had a series of six appointments between March 27, 2006 and September 20, 2006 with three orthopaedic doctors, presenting to them with neck, back and shoulder pain. AR at H335, H337, H340, H351, H352, H1235, H1236. Following a series of evaluations and tests, the orthopaedic diagnosis was:
AR at H1235. The orthopaedic doctors recommended medication, physical therapy, and participation in a pain management program.
Howard also consulted with cardiologists between 2003 and 2005. AR at H634-43. The cardiologists found no cardiac abnormalities, and concluded that her "significant overweight disorder ... may be the absolute etiology for her shortness of breath." Id. at H635-36. A treadmill study was "terminated because of fatigue" and not due to chest discomfort, Id. at H641. The cardiologist noted "cardiovascular deconditioning." Id. A second cardiologist opined that the "`pleuritic pain'" of which Howard complains is not cardiac-related. Id. at H634.
Hartford initiated surveillance of Howard in March 2006 "[t]o better understand [her] capabilities." AR at H221; see also id. at H148-H202; H1328.
A total of 60-hours of surveillance was conducted over the course of six days: March 30-31, April 1, and May 8, 9, and 10, 2006. AR at H151-H153, H168-H202 (Triad Investigative Report). The investigator furnished Hartford with three-hours and fourteen (14) minutes of surveillance video, and a written report of Howard's observed activities during more than 20 hours away from her home. The following description of the observed activities, some of which were documented in the surveillance video, are taken from Hartford's Case Information Form, id. at H151-53; Triad Investigations Investigative Report, id. at H168-H202; the November 10, 2006 Independent Medical Report of Dr. William Sniger, M.D., who reviewed and analyzed the surveillance report and video at Hartford's request, id. at H237-39; and Hartford's November 15, 2006 correspondence to Howard terminating her LTD benefits. Id. at H218-28. The surveillance results are also found in Hartford's Investigative Summary, dated January 1, 2007. Id. at H1811-1906.
AR at H151; H173-75; H221; H237.
Id. at H221, H151, H221, H238.
Id. at H151; H181-82; H221; H238. At this point, the Hartford investigative examiner wrote in the Case Information Form, in a "summary" dated April 18, 2006:
Id. at H151-52; see also id. at H192 (on April 21, 2006, Triad "instructed to conduct an additional investigation"). On April 21, 2006, the Summary Report reflects that "SIU has reopened its investigation." AR at H1329.
Thereafter, on May 8, 2006, the Hartford examiner wrote that Hartford had received an update from Triad Investigations regarding a second round of surveillance. AR at H152. The following surveillance observations were made:
AR at H152; H193; H196-97; H221.
Id. at H152; H193; H197; H221-22.
Id. at H153, H193, H200-H201, H222, H238-29.
At the conclusion of the two rounds of surveillance, the Hartford examiner wrote:
Id. at H153. In sum, Howard was observed away from her home in various activities for a total of 20 hours and 51 minutes over the course of six days of surveillance, divided into two three-consecutive-day segments. Approximately three hours and fourteen (14) minutes of the observed activity was recorded by the investigator on a surveillance video. (Doc. 210; Notice).
Hartford sent the surveillance video, the surveillance summary, and the 06/30/06 Disability Statement, as well as Howard's medical records from 2001 through 2006, to Dr. William Sniger, a board certified physician in physical medicine and rehabilitation, and spinal cord injury medicine, with the Medical Advisory Group LLC, ("MAG"). AR at H229-H240. In his report, dated November 10, 2006, Sniger observed that "[s]urveillance video revealed the claimant performing activities in excess of her stated limitations." Id. at H239.
Id. He continued:
Id. Dr. Sniger concluded that: "Based upon the subjective and objective information available to me, it is my opinion with a reasonable degree of medical certainty that the preponderance of information does not support the claimant's alleged inability to perform full-time work from a physical perspective." Id. at H240. Sniger recommended that Howard be provided with the following restrictions: "Lifting/carrying of 10 pounds occasionally; opportunity to change positions periodically; standing/walking occasionally; no climbing, squatting or crawling. No other restrictions are indicated." Id.
In a letter to Howard, dated November 15, 2006, Hartford terminated Howard's LTD benefits. AR H218-28. Hartford wrote that
Id. at H218. Hartford wrote that it based its decision to terminate the LTD benefits upon the Plan's language and "all documents contained in your claim file, viewed as a whole." Id. at H219. In the letter, Hartford compared the observations made of Howard during the surveillance and recorded in the video with her inconsistent responses made in the 06/30/06 Disability Report, including 1) her statement that she used her cane 90% of the time when she was observed during surveillance using the cane "infrequently;" 2) her statement that she could not sit for more than one hour, when she "remained seated in her padded dining room chair for 3 hours and ten minutes" during the interview; and 3) her statement that she could not drive for more than 30 minutes or more than 20 miles, when in fact she was observed driving for approximately 248 miles. Id. at H226. Hartford wrote that "[a]fter reviewing the statements you provided to Mr. Martinez, we felt that additional clarification of your medical condition was necessary as it did not appear that your observed activities and self-report activities were consistent with your report that you were unable to perform your sedentary occupation," and referred the claim to Hartford's Medical Claim Manager. Id. Hartford determined that "[b]ased on the documents in your claim file, ... you have the ability to perform a sedentary to light occupation with the following restrictions and limitations: lifting/carrying of up to 10 lbs. occasionally; opportunity to change position periodically; standing/walking occasionally; no climbing, squatting or crawling." Id. at H228. Comparing this finding with the job description for Business Strategy Manager I, "[t]he weight of the evidence does not support that you are prevented from performing the Essential Duties of Your Occupation." Id.
Hartford's investigative Case Information Form reported that the investigation was initiated March 9, 2006, and that the end status was "closed." It reported an "Outcome" of "Termination" on November 15, 2006, and "Amount $316,022.00." AR at H148, 150. Hartford's January 7, 2007 Investigative Summary, entitled "Questionable Disability Claim" "Howard, Kimberly A," id. at H1811, reported "Date Concluded" as November 15, 2006, and "Reserve: $316,022.00." Id. at 1812.
On May 11, 2007, Howard, through her attorney, appealed Hartford's termination of her LTD benefits, in accordance with the Plan's procedural framework. AR at H1440-52. In the appeal, Howard contended that she is "totally disabled and unable to perform one or more of the essential duties of her occupation due to her fibromyalgia and lupus." Id. at H1444.
In support of her appeal, Howard cited to the January 25, 2007 report of Dr. Orlando Florete, with the Institute of Pain Management in Jacksonville, Florida. AR H1249-52; H1453. Dr. Florete stated that Howard reported to him she experienced severe burning or throbbing pain at numerous points that has "worsened over time and is tender to touch." "Exercise, prolonged sitting, standing, walking, change in the weather, stress, sex, fatigue, bending forward or backward, leaning forward, coughing, sneezing, touching the skin, and working worsen the pain." Id. at H1250. Under the heading "Functional Capacity," Dr. Florete wrote:
Id. at H1251. In his physical examination, Dr. Florete noted tenderness on palpation in the back, neck, shoulders, chest, and multiple joints including shoulder, elbows, wrists, fingers, knees, ankles and feet. However, he also noted no heart problems, no tenderness in the abdomen, no range of motion problems in the spine, good pulses in extremities, no edema, and no focal neurological deficit. Id. at H1251. Based upon his examination and review of her medical records, Dr. Florete diagnosed:
He recommended physical therapy and medication. Id. at H1252.
Howard also submitted an Attending Physician Statement, completed by Dr. Florete on February 13, 2007, reiterating the observations he made the previous month, and listing her limitations and restrictions as being unable to lift more than 10 pounds, and being "prohibited" from "prolonged standing, walking, sitting, kneeling." Dr. Florete opined that Howard is "totally disabled" and that her prognosis is "poor in terms of future employment." AR at H1244-146; H1453. In addition to medications, Dr. Florete recommended cervical epidural injections, to which she responded she would think about it, and physical therapy for her reported neck pain with intermittent numbness of both extremities. Id. On April 5, 2007, Dr. Florete examined Howard and said the physical exam "remains unchanged." Id. at H1253; H1453. Howard reported to Dr. Florete that the pain in her neck and upper back is worse, grading it as a 7 out of 10. The doctor increased medication and continued to recommend steroid injections and physical therapy. Id. at H1253. Howard had pursued neither physical therapy or steroid injections, despite Dr. Florete's previous recommendations. Id.
Howard further supported her appeal with an Attending Physician Statement by Dr. Decker, dated April 22, 2007. Dr. Decker reported that "Patient states that she experiences severe joint pain in all extremities and cervical spine," and "severe loss of use of both hands," rendering her unable to dress. Dr. Decker listed restrictions "according to" Howard as needing assistance with all activities" and "mobility is extremely limited." Dr. Decker listed his diagnosis as being fibromyalgia, hypertension, chronic fatigue, insomnia, depression (which is secondary to disability), and listed "lupus as diagnosed by rheumatologist Taba." Dr. Decker concluded that "when patient has a flare up of her fibromyalgia and lupus she is totally disabled. This is frequent." AR at H1254-56.
Id. at H1513. Addressing the surveillance observations and videos, Manning said that equating "minutes or even hours of filmed attempts on isolated days of assisting her elderly parents ... or driving her only child to school and after school activities with the ability to carry out essential functions of any occupation with reasonable continuity for a 40 hour work week is ludicrous." Id. at H1513-14. Additionally, she rejected Dr. Sniger's opinion that Howard could perform the duties of her job, albeit with some restrictions. Manning opined that Howard's inability to engage in sedentary work renders her unable to perform the essential duties of her occupation or of "any gainful occupation" for which she is qualified. Id. at H1514.
Howard also submitted her own rebuttal of Hartford's surveillance findings. AR at H1593. Howard explained that on April 25, 2006, she drove 125 miles to Titusville, two hours south of Jacksonville, to assist her elderly mother care for her father, who had fallen in the driveway and broken his hip. She said she stayed in Titusville for a week, and then she had her parents transported to Jacksonville's Brooks Rehabilitation Hospital. Id. at H1593-94. Two weeks later, on May 9, 2006, Howard drove her mother to Titusville to retrieve
Id. at 1595.
In his Initial Appeal Review, dated May 31, 2007, Hartford appeals specialist James Powell wrote that based upon the record, "an additional medical review will be needed." AR at H1348-49. Accordingly, neuropsychologist Dr. Carol Walker, Ph.D., and physician Dr. Phillip Marion, both of whom are with the company Reed Review Services ("RSS"), reviewed Howard's medical records and claim file at Hartford's request.
Id. at H1518. Walker opined that "[f]rom a psychological/neuropsychological perspective, there are no restrictions or limitations." Id. at H1517-18.
Dr. Marion also reviewed Howard's extensive medical records and the surveillance results. Dr. Marion stated:
AR at H1522. Dr. Marion stated his opinion that Howard has the "ability to work at least at the light duty occupational level," with an unrestricted sitting requirement. Id. at H1523. Dr. Marion recognized the following physical restrictions: standing and walking (up to four hours a day); climbing (two flights of stairs occasionally); lifting and carrying (20 pounds occasionally and 10 pounds frequently); and occasional
Hartford upheld its termination of Howard's LTD benefits under the Plan, on June 28, 2007. Complaint ¶ 24; Answer ¶ 24; AR at H1498-H1500. Referencing Howard's medical history and the surveillance video, Hartford's Senior Appeal Specialist James Powell wrote in a letter to Howard's attorney:
Id. at H1499. Noting that Howard had been diagnosed with fibromyalgia and lupus years before she ceased working, Hartford stated that it is "unclear what precipitated the cessation from work...." Id.
Id. Powell wrote that Hartford had reviewed the report from Howard's vocational consultant Manning, as well as "all other evidence," and concluded "there remains insufficient support for Ms. Howard's claim." Id. at H1500.
Id. Hartford determined that "the weight of the evidence continues to support Ms. Howard's capacity to perform her occupation on a full-time basis," citing to the opinions of three consulting health care providers — Drs. Sniger, and Marion, and Walker, and Hartford's nurse practitioner — as support, and discounting the opinions of Howard's physicians, Drs. Decker and Florete, because they did not review Ms. Howard's activity in the surveillance videos. Id. at H1500; H1352. Hartford concluded that "[w]hile we do not dispute that Ms. Howard indeed has the condition of Fibromyalgia, it is clear that she has been capable of working for years with said condition, and as noted by Dr. Sniger and Dr. Marion, and further corroborated by surveillance, Ms. Howard remains capable of performing activities consistent with
Hartford has not paid Howard LTD benefits since November 15, 2006. Complaint ¶ 25; Answer ¶ 25.
Under Rule 56(a), Federal Rules of Civil Procedure (Rule(s)), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). However, "`[i]n an ERISA benefit denial case ... in a very real sense, the district court sits more as an appellate tribunal than as a trial court. It does not take evidence, but rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary.'" Curran v. Kemper Nat'l Servs., Inc., No. 04-14097, 2005 WL 894840, at *7 (11th Cir. Mar. 16, 2005)
Crume, 417 F.Supp.2d at 1273. Thus, "conflicting evidence on the question of disability cannot alone create an issue of fact precluding summary judgment, since an administrator's decision that rejects certain evidence and credits conflicting proof may nevertheless be reasonable." Crume, 417 F.Supp.2d at 1272. The Court will review this case using the modified Rule 56 standard set forth in Curran and Crume. See Curran, 2005 WL 894840, at *7, Crume, 417 F.Supp.2d at 1272-73; see also Ganceres v. Cingular Wireless Health and Welfare Benefits Plan for Non-Bargained Emps., No. 3:04-cv-199-J-32HTS, 2006 WL 2644919, at *6-7 (M.D.Fla. Sept. 14, 2006).
Under 29 U.S.C. § 1132(a)(1)(B), a person may bring a civil action "to recover
Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir.2011). All steps of the analysis are "potentially at issue" when a plan vests discretion to the plan administrator to make benefits determinations. Id., at 1356 n. 7. Thus, even if the Court were to determine that the administrator's decision was "de novo wrong," the Court must proceed to the next steps of the Eleventh Circuit's analysis and accord the appropriate level of deference due to Hartford's determination as the Plan administrator.
Here, there is no dispute that Hartford had full discretion and authority to determine eligibility benefits and to construe and interpret all terms and provisions
Hartford has moved to exclude Exhibits 1 through 30 filed by Howard in support of Howard's Motion for Summary Judgment. Hartford Motion in Limine; (see Doc. 215 (Exhibits 1-30)). Citing Blankenship, supra, Hartford argues that because none of these exhibits were available or considered by the Plan administrator at the time of the decision to terminate Howard's LTD benefits or to deny Howard's administrative appeal, they do not fall within Blankenship's direction that judicial review is "limited to consideration of the material available to the administrator at the time it made its decision." Hartford Motion in Limine at 3 (quoting Blankenship, 644 F.3d at 1354); see also Hartford Reply.
Howard opposes Hartford's Motion in Limine. She points to the Supreme Court's language in Glenn, supra, which suggests that a structural conflict of interest may weigh more heavily as a factor "where an insurance company administrator has a history of biased claims administration," or more lightly "where the administrator has taken active steps to reduce potential bias and to promote accuracy." Glenn, 554 U.S. at 117-18, 128 S.Ct. 2343 (internal citations omitted). According to Howard, this language anticipates that outside evidence may be considered on the conflict of interest issue. Howard's Response to Motion in Limine at 2, 5. Howard cites to a number of cases from courts outside of the Eleventh Circuit, primarily in the Ninth Circuit, holding that extrinsic evidence may be considered on the question of whether a plan administrator's conflict of interest affected its decision to deny benefits. Id. at 2, 9, 10, 12. Additionally, Howard contends that the administrative record "`does not by necessity, contain all of the facts known to the administrator.'" Id. at 3, 4 (quoting Fish v. Unum Life Ins. Co. of Amer., 229 F.R.D. 699, 701 (M.D.Fla.2005)); see also id. at 6.
The Eleventh Circuit has consistently stated that in an ERISA case, a court's review of an ERISA administrator's discretionary benefits decision under the arbitrary and capricious standard is confined to the evidence that was before the plan administrator when the claim for benefits was denied. See Blankenship, 644 F.3d at
As Plaintiff notes, discovery regarding an administrator's conflict of interest in ERISA cases has been permitted in appropriate circumstances, in this Circuit, (see Doc. 108; 06/27/11 Omnibus Discovery Order; Doc. 183; 07/26/12 Order, and cases cited therein); see also e.g., Howard Response to Motion to Strike at 4 n.4 (citing cases). However, the decisions allowing such discovery, which Plaintiff cites, do not address the question of the ultimate use of the extra-record evidence. See Richards, 356 F.Supp.2d at 1288. The Eleventh Circuit, to date, has not expanded judicial review of a benefits decision beyond the information which was before the ERISA plan administrator at the time of the decision. See Bloom v. Hartford Life and Accident Ins. Co., No. 11-CV-81393, 917 F.Supp.2d 1269, 1277, 2013 WL 238838, at *5 (S.D.Fla. Jan. 23, 2013) ("The Eleventh Circuit has not yet weighed in on the matter" of the court's consideration of extra-record materials). Nevertheless, the Eleventh Circuit has advised that for a court to overturn an ERISA administrator's decision based upon a conflict of interest, the structural conflict of interest must be of sufficient "`inherent or case-specific
The Court has located one trial court decision within this Circuit in which the court approved consideration of extrinsic evidence when undertaking an arbitrary and capacious review of an ERISA benefits decision. The court in Bloom, supra, permitted consideration of extrinsic evidence, noting that courts in other circuits have carved out "exceptions" allowing consideration of extra-record evidence, based on the Supreme Court's language in Glenn. See Bloom, 917 F.Supp.2d at 1277-78, 2013 WL 238838, at *6 (citing cases). Based on this, the Bloom court held that "extra-record evidence is admissible where Bloom can demonstrate the evidence will be used to support a claim of procedural misconduct or bias on the part of Hartford." 917 F.Supp.2d at 1278, 2013 WL 238838, at *6. Thus, the court permitted consideration of "extra-record materials pertaining to Bloom's accusations that Hartford deviated from its own claims practices, and thus failed to provide a full and fair review." Id. However, the court declined consideration of extra-record evidence on the issue of whether or not the claimant was disabled, offered to "substantively impact her eligibility for benefits." Id.
Here, Howard has submitted thirty exhibits, some of which she did not cite at all in her briefing, others she cited only by exhibit number despite the exhibit being hundreds of pages in length, and many of which are far-afield of Hartford's decision regarding Howard's specific LTD benefits eligibility.
Howard contends in her Motion for Summary Judgment that Hartford's decision to terminate her LTD benefits was wrong, and arbitrary and capricious, and should be reversed for a number of reasons. Howard argues that Hartford's decision is "wrong" because in accordance with the definition of "disability" set forth in the Plan, she is considered "disabled" if she is unable to perform "one or more" of the essential duties of her occupation. Howard contends that the evidence is undisputed that she is unable to type, which constitutes one of the essential duties of her job. Howard Motion for Summary Judgment at 9-11; Howard Response at 1-2, 11-12. Additionally, Howard argues that although Hartford's reviewing health care providers opined that Howard was capable of performing a "sedentary" job, there is no evidence she is capable of working "full time," an essential duty of her occupation. Howard Motion for Summary Judgment at 11. Further, Howard argues that Hartford was wrong to rely upon the surveillance and the "flawed" records review by three independent health care providers. Id. at 13, and that its financial conflict of interest permeated the administrative review process. Id. at 15-35.
Hartford, not surprisingly, views the record differently. It argues that Howard has not met her burden of establishing that she is disabled, and of proving that Hartford's decision to terminate her benefits was arbitrary and capricious. Hartford Motion for Summary Judgment at 18-19. Hartford contends that Dr. Decker's and Dr. Hoffman's typing restriction was based upon Howard's subjective complaints, which were discredited by the observations made during surveillance. Hartford Response at 2-6. Hartford notes that its reviewing physicians, Dr. Sniger and Dr. Marion, did not include typing in their lists of physical limitations or restrictions, and that Hartford was not wrong or unreasonable to rely on those opinions. Hartford Response at 7-8. Additionally, Hartford argues that Howard has not shown that the value of Howard's claim, or Hartford's investigation of her claim through surveillance and review by consulting
While the Court recognizes that Howard suffers from an array of ongoing medical problems and chronic pain, the question presented by her claim of unlawful termination of disability benefits is whether her medical conditions are sufficiently work-preclusive to establish disability under the ERISA Plan. See Richey v. Hartford Life & Accident Ins. Co., 608 F.Supp.2d 1306, 1310 (M.D.Fla.2009) ("ERISA disability is not established merely by the existence of pain, even chronic pain, in the absence of proof that the claimant's pain actually precludes him or her from working"); Sanzone v. Hartford Life and Accident Ins. Co., No. 06-61135-CIV, 2008 WL 80984, at *11 (S.D.Fla. Jan. 3, 2008) ("whether Plaintiff is `disabled' under the policy is not based on whether she has been diagnosed with a certain medical condition"). To prove her entitlement to LTD benefits under the Plan, Howard is required to demonstrate that she was disabled from her "Own Occupation" throughout the elimination period, and beyond, as those terms are defined in the Plan.
Howard argues that she "consistently had positive clinical findings consistent with fibromyalgia and systemic lupus" and thus she "provided sufficient objective evidence of her conditions and it is unreasonable for [Hartford] to require Ms. Howard to provide objective evidence [of] her pain and fatigue." Howard Motion for Summary Judgment at 16-17; see also Howard Response at 2-3. Hartford responds that "Howard cannot meet her burden of establishing a disability merely by pointing to her diagnoses or to her alleged symptoms of pain, fatigue, etc." Hartford Motion for Summary Judgment at 20. Instead, Hartford contends, "Howard's burden of demonstrating her inability to work in her occupation requires her to prove that she was incapable of performing sedentary work." Id. at 21.
It is undisputed that Howard's treating physicians diagnosed her as having lupus, fibromyalgia,
Howard argues that Hartford incorrectly interpreted the Plan's definition of "Disability," contending that she need only establish that she is unable to perform one essential duty of her job, i.e. typing. Howard Motion for Summary Judgment at 9-11. The Eleventh Circuit considered precisely this question in Richards, 153 Fed. Appx. at 695-97, a case in which the claimant reported ailments similar to Howard's, and in which the applicable ERISA plan, which was administered and funded by Hartford, contained the identical definition for "disability." The District Court in Richards, which was affirmed by the Eleventh Circuit, construed "general workplace" limitation in the Plan's "your occupation" requirement as follows:
Richards, 356 F.Supp.2d at 1286-87. Accordingly, Hartford's interpretation of the Plan's definition of "disability" was not arbitrary and capricious. See AR at H220-21 (11/15/06 Termination Letter).
Moreover, the Department of Labor classified Howard's occupation as "sedentary." AR at H426-28, H1332. "Sedentary work involves `sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.'" Townsend, 295 Fed. Appx. at 976 (quoting Department of Labor, Dictionary of Occupational Titles); see also Richards, 153 Fed.Appx. at 697 ("The Department of Labor's Dictionary of Occupational Titles defines sedentary work as requiring exertion of `up to 10 pounds of force occasionally ... and/or a negligible amount of force frequently ... to lift, carry, push, pull, or otherwise move objects'"). Nothing in the definition of "sedentary" requires eight hours a day of continuous typing. Moreover, "courts have repeatedly upheld administrative claim denials where medical evidence indicates that shifting position as needed would enable the claimant to perform sedentary work." Richards, 356 F.Supp.2d at 1287 (citing inter alia Turner v. Delta Family-Care Disability and Survivorship Plan, 291 F.3d 1270, 1273-74 (11th Cir. 2002)). Nothing in the record suggests that Howard had any difficulty performing the substantial duties of her job before she stopped working in April 2005. Finally, inherent in the opinions from Drs. Sniger and Marion that Howard is not disabled and is capable of performing a sedentary job, is a determination that she is capable of working full-time. The reviewing professionals placed no time limit on Howard's capability to work, other than taking an occasional break to stand. As such, their opinions were reasonably construed by Hartford as including full-time employment, and it was not an abuse of discretion for Hartford to rely on their opinions in upholding its termination of Howard's LTD benefits. See Richards, 153 Fed. Appx. at 697.
Howard argues that Hartford improperly terminated her LTD benefits by unreasonably requiring her to produce objective evidence of her pain and fatigue. Howard Motion for Summary Judgment at 16-17 (citing Oliver v. Coca Cola Co., 497 F.3d 1181, 1196 (11th Cir.2007), vacated, in part, on other grounds, 506 F.3d 1316 (2007)). Additionally, Howard contends that the opinions of her treating physicians, who had the advantage of actually physically examining her and assessing her face to face, constitute objective evidence
With respect to the opinions of Howard's treating physicians, the Court notes that "[n]o special weight is to be accorded the opinion of a treating physician." Ray v. Sun Life & Health Ins. Co., 443 Fed.Appx. 529, 533 (11th Cir.2011) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829-33, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003)), cert. denied, ___ U.S. ___, 133 S.Ct. 547, 184 L.Ed.2d 343 (2012); see also Blankenship, 644 F.3d at 1356 ("Plan administrators need not accord extra respect to the opinions of a claimant's treating physicians"); Townsend, 295 Fed.Appx. at 978 ("plan administrators are not required to give greater weight to the submissions of a treating physician than to other reliable evidence"). Moreover, while a claim administrator may not refuse to consider reliable evidence, the administrator is not required to accord deference to the opinions of treating physicians, or to credit treating physicians' opinions that are based upon the claimant's subjective complaints. Bloom, 917 F.Supp.2d at 1281, 2013 WL 238838, at *9; Moeller, 2011 WL 7981954, at *9 (citing Nord, 538 U.S. at 834, 123 S.Ct. 1965); Giertz-Richardson v. Hartford Life and Accident Ins. Co., 536 F.Supp.2d 1280, 1292-93 (M.D.Fla.2008). Indeed, doctors' diagnoses do not in and of themselves, establish a disability and inability to work. Bloom, 917 F.Supp.2d at 1281, 2013 WL 238838, at *9; Williams v. Hartford Life and Accident Ins. Co., No. 8:02-CV-85-T17MAP, 2010 WL 557265, at *8 (M.D.Fla. Feb. 12, 2010). Rather, the subjective nature of the treating physicians' observations, reports, and diagnoses may be taken into account. Bloom, 917 F.Supp.2d at 1281, 2013 WL 238838, at *9; Giertz-Richardson, 536 F.Supp.2d at 1292-93.
Although Howard's treating physicians repeatedly documented Howard's subjective complaints of pain, diagnosed her based upon those complaints, and prescribed a panoply of medications to treat them, none of the records confirm her disability status or assess her functional limitations in relation to her ability to perform her occupational duties with Fidelity, as defined by the Plan. Moreover, Howard's vocational consultant Teresa Manning relied on Howard's own description of her limitations and the medical reports of Howard's treating physicians, without any vocational or functional capacity testing. See Harvey, 503 Fed.Appx. at 849-50; Harvey, 850 F.Supp.2d at 1286.
While a "consistent diagnosis" of chronic pain by a claimant's treating physician, "along with the consistent observations of physical manifestations of [claimant's] condition" may constitute objective medical evidence, Lee v. BellSouth Telecomms., Inc., 318 Fed.Appx. 829, 837 (11th Cir.2009),
Additionally, while Howard gave a myriad of subjective complaints, her treating physicians reported that numerous medical tests yielded negative results. Indeed, the only "objective" measures of any ailment reported by her treating physicians were an elevated ANA blood test, occasionally visible edema in her ankles and hands, and slightly bulging and degenerated discs. Yet, based upon these findings, the treating physicians diagnosed lupus, fibromyalgia, and depression.
Hartford was entitled to consider objective evidence, including the report of Howard's rheumatologist, as well as electrocardiogram ("EKG") results, lab tests, and chest x-rays showing no objective heart, lung or blood infirmities. Moreover, Hartford was permitted to consider the veracity of Howard's subjective reports of pain to her physicians, in light of more than 20 hours of surveillance observations, and three hours and fourteen minutes of surveillance video showing her driving, carrying bags, a purse, and a walker, talking on the phone, walking, shopping, and generally conducting the normal daily affairs of living. The record does not support a finding that Hartford failed to properly consider Howard's treating physicians' opinions or that it denied Howard LTD benefits based simply on a failure by Howard to offer objective medical evidence. See Gipson, 350 Fed.Appx. at 393; Keith v. Prudential Ins. Co. of Am., 347 Fed. Appx. 548, 551 (11th Cir.2009); Taylor v. Broadspire Servicing, Inc., 314 Fed.Appx. 187, 192 (11th Cir.2008); Stiltz v. Metro. Life Ins. Co., 244 Fed.Appx. 260, 264 (11th Cir.2007).
Similarly, with respect to Howard's subjective complaints of cognitive impairment and loss of concentration, Dr. Walker noted the absence of any objective findings. There is no dispute that none of the records provided to Hartford for its review
In addition, Howard argues that Hartford's "excessive reliance" upon the "flawed" opinions of its three reviewing health care professionals was wrong, and arbitrary and capacious. Howard Motion for Summary Judgment at 13. Specifically, Howard contends that the RSS consultants (Dr. Marion and Dr. Walker) reviewed "incomplete information" which did not include the Plan's definition of "disability," Howard's explanation of her activities observed in the surveillance and accompanying video, or all of the medical records submitted by Howard in support of her appeals. Additionally, she asserts that Dr. Walker, a neuropsychologist, was "not properly qualified;" and that the report contains "blatant inconsistences" apparently referring to the recounted dates of Howard's office visits with her treating physicians. Id. at 13-15, 29-32; see also Howard Response at 18-19. Howard also criticizes Dr. Sniger's report as "biased and unreliable on its face," contending that he relies "almost entirely on the surveillance video." Howard Response at 18. She further argues that because the RSS report is "unsigned," it is not credible. Howard Motion for Summary Judgment at 14-16, 30.
Hartford argues that its reliance upon two consulting physicians' and a neuropsychologist's independent conclusions that "Howard was capable of full-time work at or above the sedentary demand level required by her occupation" was reasonable. Hartford asserts that because the reviewing medical professionals considered the surveillance report and video, their opinions were entitled to more weight than those of the treating physicians and IME physician Dr. Hoffman, none of whom had had the benefit of considering Howard's observed activities. Hartford Motion for
The Court finds that Hartford acted reasonably in relying on the independent medical opinions, and in crediting those opinions over the opinions of Howard's doctors. Blankenship, 644 F.3d at 1356. Indeed, the Eleventh Circuit has specifically determined that a Plan administrator's "use of `file' reviews by its independent doctors — instead of live, physical examinations" is not arbitrary and capricious, "particularly in the absence of other troubling evidence." Id. at 1357. "`[I]t is entirely appropriate for an administrator to rely on written reports of consultants who have done paper reviews of a claimant's medical records, even if those reports rebut the opinion of the treating physicians asserting claimant is disabled.'" Giertz-Richardson, 536 F.Supp.2d at 1291; see also Watts v. BellSouth Telecomm., Inc., 218 Fed.Appx. 854, 856 (11th Cir.2007); Moeller, 2011 WL 7981954, at *8.
The reviewing health care professionals each considered extensive medical records generated by Howard's treating physicians, AR at H229-36; H1515-17, 1520-21, and recognized her physical limitations. Dr. Marion opined that Howard has the "ability to work at least at the light duty occupational level," with an unrestricted sitting requirement, id. at H1523, and recognized Howard's physical restrictions in relation to standing and walking (up to four hours a day); climbing (two flights of stairs occasionally); lifting and carrying (20 pounds occasionally and 10 pounds frequently); and occasional pushing, pulling, bending, squatting, twisting and upper extremity use (with left shoulder). Id. Likewise, Dr. Sniger recommended: "Lifting/carrying of 10 pounds occasionally; opportunity to change positions periodically; standing/walking occasionally; no climbing, squatting or crawling. No other restrictions are indicated." Id. at H240.
That the reviewing health care providers may not have received every treating physician's report or reported inconsistent dates of office visits; did not have the benefit of Howard's minor corrections to her June 30, 2006 Disability Statement or Howard's explanation of her conduct in the surveillance video, (which consisted primarily of her saying that the distance driving was occasioned by a family emergency and that the errands took place on a "good day"), are not the type irregularities that create "procedural unreasonableness" sufficient to recast Hartford's reliance upon the consulting professionals' opinions as being arbitrary and capricious. See Blankenship, 644 F.3d at 1357. Moreover, there is no evidence either in the Administrative Record, or presented extrinsically, that suggests that the "unsigned" report was in anyway falsified or irregular, and thus should not be considered.
Howard contends that Hartford was wrong and unreasonable to rely on surveillance in determining that Howard was not disabled under the Plan, because the surveillance and accompanying video do not support a conclusion that Howard "is no longer prevented from performing one or more of the essential duties of her occupation." Howard Motion for Summary Judgment at 12-13 (emphasis in original), 32; see also Howard Response at 14-17. She argues that surveillance observed her "using a cane at times," which is consistent with her infirmities, and that Howard explained to Hartford that her activities, including driving to Titusville and back in a day and carrying a walker, "were atypical, as she was dealing with a family emergency." She argues that "although she can engage in activity, it aggravates her pain and she cannot sustain the activity." Howard Motion for Summary Judgment at 12-13. Additionally, Howard argues that the surveillance video does not show when Howard is at rest, nor does it report the level of pain that Howard experiences. Id. at 33.
Hartford responds that surveillance is appropriate and reasonable, and that the "video showed Howard clearly exceeding the limitations that she described to Hartford... and to her treating physicians, thus discrediting the subjective self-reporting and resulting medical opinions upon which her LTD claim depended." Hartford Motion for Summary Judgment at 22. Hartford points specifically to the surveillance observations establishing Howard's ability to drive; to use her hands (hold and talk on a cell phone, pump gas, carry bags and a purse, carry a cane, try on shoes, hold a steering wheel for two or more hours, turn a steering wheel with one hand while holding a cell phone with the other, open and close the door on her vehicle and at the bank, and lift and carry a walker), sit for extended periods of time, stand, walk, (while shopping for more than an hour), lift, reach, bend, and enjoy a normal range of motion. Id. at 24-28.
Howard's citation to other cases in which Hartford's surveillance video did not
Of course, the determination of whether surveillance is truly probative of whether the claimant qualifies for disability benefits is heavily based on case-specific factors. Hartford's investigator observed Howard on day-long outings, sitting for extended periods of time, focusing on driving, shopping, and performing other normal physical and cognitive activities. Spanning nearly 21 hours of activity away from home during a period of six days, the surveillance in this case provided more than "mere snapshot" of Howard's activities throughout the day. Compare Cross v. Metro. Life Ins. Co., 292 Fed.Appx. 888, 892-94 (11th Cir.2008) (five days of surveillance resulted in only two hours of video that did not show the claimant exerting himself "and did nothing to disprove his reports of pain"); Franklin v. Hartford Life Ins. Co., No. 8:07-cv-1400-T-23MAP, 2008 WL 5110836, at *12-13 (M.D.Fla. Nov. 25, 2008) (surveillance spanning seven days and producing 20 hours of video showing claimant's limited abilities to walk, drive, and get in and out of car offers no proof claimant disabled by rheumatoid arthritis, osteoarthritis and herniated disc, can work as a physician practicing medicine, and is consistent with claimant's explanations of his limitations). Importantly, the investigator's observations, and the accompanying surveillance video, directly contradicts Howard's repeated assertions that she could not walk, drive, sit, reach, bend, talk on the phone for extended periods, lift, focus, or concentrate. Howard's credibility is seriously called into question
Howard argues that Hartford's "conflict of interest has infected its claims administration," Howard Motion for Summary Judgment at 17, and that Hartford's decision to terminate Howard's LTD benefits "was actually motivated by its financial self-interest." Howard Response at 2. She contends that the fact that the monetary value of Howard's disability claim appeared in the Administrative Record, and was available to Hartford's claims analysts and reviewing health care professionals, is evidence that Hartford's financial interest in denying Howard LTD benefits played into its decision to re-evaluate Howard's claim, and colored its final determination. Howard Motion for Summary Judgment at 17-18, 21-22. Additionally, Howard contends that Hartford's failure to schedule a second IME, rather than launching into an investigation and surveillance is further evidence of its unreasonable bias. Id. at 26-29. Because Hartford both determines and pays benefits under the Plan, the Court must consider the inherent structural conflict of interest in this case as a factor in determining whether the Hartford Plan administrator abused its discretion in terminating Howard's LTD benefits. Glenn, 554 U.S. at 108, 128 S.Ct. 2343; Blankenship, 644 F.3d at 1355.
Howard argues specifically that the fact that Hartford employees were informed of Hartford's profitability, and that they received bonuses and compensation in the form of stock, also contributes to establishing that Hartford's conflict of interest rendered its decision to terminate Howard's LTD benefits arbitrary and capricious. Additionally, Howard contends that the fact that the third party "vendors" who employed Hartford's medical "reviewers" earned a significant income from their business with Hartford establishes that a financial conflict of interest created an incentive for these reviewers to find Howard was not disabled, with "no safeguards" set up by Hartford to prevent a biased finding. Howard Motion for Summary Judgment at 18-26, 32; Howard Response at 15. The Court declines to accept these arguments. Howard cites to extrinsic evidence in the form of deposition testimony, Hartford corporate compensation policy documents, the testimony of a former Hartford claims adjustor from Georgia who had nothing to do with this case, and responses from third party vendors regarding income. Not only does this constitute extrinsic evidence that was not before the Administrator at the time of the decision, but it also is not case-specific
The financial conflicts of interest about which Howard complains, in the form company profitability, employee compensation and bonuses, and administrator payment to reviewing health care providers, are "an unremarkable fact in today's marketplace." Blankenship, 644 F.3d at 1356. Indeed, even the high value of Howard's claim and the fact that it was reported in her claim file, is not sufficient to transform Hartford's decision into being arbitrary and capricious. See id. at 1357 (rejecting the district court's finding that the $510,000 value of claimant's potential claim skewed the plan administrator's decision). Likewise, there is no evidence that Drs. Sniger, Marion, and Walker were biased. "The use of independent reviewers is a practice recognized by the Eleventh Circuit as reasonable and does not automatically evince a conflict of interest." McCay, 823 F.Supp.2d at 1246. Nor has Howard established that Hartford's procedural handling of Howard's claim for LTD benefits was faulty. See Bloom, 917 F.Supp.2d at 1286, 2013 WL 238838, at *14 (court examined and rejected the claimant's contention that alleged "procedural violations substantially impacted Hartford's determination of Bloom's claim such that she did not receive a full and fair review and Hartford abused its discretion in terminating her benefits"); compare Helms v. Gen. Dynamics Corp., 222 Fed.Appx. 821, 828-29, 834 (11th Cir.2007) (administrator never submitted claimant's medical evidence to peer review nor conducted an IME on claimant, rendering procedural handling of claim flawed, wrong and unreasonable).
"Where a conflict exists and a court must reach step six, `the burden remains on the plaintiff to show the decision was arbitrary; it is not the defendant's burden to prove its decision was not tainted by self-interest.'" Blankenship, 644 F.3d at 1355; see also Ray, 443 Fed. Appx. at 529. The court must weigh the structural conflict of interest as a factor during the arbitrary and capricious review. Doyle, 542 F.3d at 1355. The effect a conflict of interest will have on review of a benefits determination "will vary according to the severity of the conflict and the nature of the case." Blankenship, 644 F.3d at 1355. However, "[e]ven where a conflict of interest exists, courts still `owe deference' to the plan administrator's `discretionary decision-making' as a whole," both as to an administrator's plan interpretations and his factual determinations. Id. at 1355 & n. 6. Howard has not met her burden of establishing "persuasive indicators" that conflict so tainted Hartford's decision so as to render it arbitrary and capricious. See Harvey, 850 F.Supp.2d at 1292; see also e.g. Prater v. Health and Welfare Plan for Emp. of Fla. Power and Light Group, Inc., No. 6:10-CV-194-ORL-36DAB,
Hartford considered the medical information submitted by Howard's treating physicians, 21 hours of activity during six days of surveillance, and three hours and fourteen minutes of surveillance video, Howard's own report of impairment which was significantly contradicted by the surveillance, and the opinions of three independent reviewing health care professionals (including two physicians), who reviewed Howard's treating physicians' health care records as well as the surveillance video, to conclude that Howard had failed to make a sufficient showing of disability under the Plan. See Blankenship, 644 F.3d at 1356. Giving deference to the administrator's discretionary decision, and taking into account the existence of Hartford's structural conflict of interest, the Court cannot say that Hartford unreasonably terminated Howard's LTD benefits, or acted arbitrarily and capaciously. See Doyle, 542 F.3d at 1363.
Accordingly, it is hereby
1. Defendant Hartford Life & Accident Company's ("Hartford") Dispositive Motion For Summary Judgment With Statement Of Undisputed Material Facts And Memorandum Of Law in Support Thereof (Doc. 208) is
2. Plaintiff's Dispositive Motion For Summary Judgment (Doc. 219) is
3. Defendant's Motion To Strike Exhibits To Plaintiff's Motion For Summary Judgment, With Memorandum Of Law In Support Thereof (Doc. 221), which the Court construes as a Motion in Limine, is
4. Plaintiff's Motion In Limine To Exclude Extra Record Evidence Attacking The Character Of Plaintiff's Witness, Sandra Carter, In Dispositive Motion Briefings (Doc. 211) is
5. The Clerk is directed to terminate all pending motions and deadlines as moot and to close the file.
At the parties' request, the Court granted the parties an additional 10 pages for their dispositive motions, rejecting Plaintiff's request for fifteen (15) additional pages. (Doc. 152; 11/04/11 Order). Thereafter, the Court denied Plaintiff's subsequent request for permission to add an additional five (5) pages to her dispositive motion, or alternatively, to file separately a ten (10) page "statement of undisputed facts." (See Doc. 207; 12/04/12 Order). Undeterred by the page limit and typeface requirements set forth in the Local Rules and the Court's Orders, Plaintiff packed pages worth of argument into dozens of lengthy footnotes, imposing an unnecessary burden on the Court. Nonetheless, the Court in its discretion, has considered Howard's submissions as filed, notwithstanding their nonconformity with the Local Rules and the Court's Orders. However, counsel is admonished to be more attentive to those requirements in future filings in this Court, or such nonconforming papers may be stricken.
06/30/06 Disability Statement, AR H1707. Howard listed her ailments as spondylosis (chronic pain in joints, muscles, and fatigue), fibromyalgia (chronic muscular pain, extreme fatigue, and sleeping problems, irritable bowel syndrome, and cluster headaches), Scheurmann's Disease (severe chronic pain in thoracic area), and lupus (including chronic fatigue and pain all over body, leg swelling, chest pains, short term memory loss). Id. at H1707. Howard stated that her conditions are being treated with medication and home exercise, and that she uses a cane "90% of the time." Id. at H1709. She listed her physical restrictions as follows: walking for 5-10 minutes ("When I have walked for more than ten minutes I then have to sit and rest because of the pain in my entire body"); standing five to ten minutes (same restriction as walking); lifting and carrying less than 3 pounds ("a box of tissues"); bending ("I am able to bend at the waist sometimes"); use of hands ("I do not have full use of my hands and fingers" ... I cannot open a bottle of water or cut cooked meat ... [my] dexterity is enough to button a button, zip a zipper or use keys to unlock a door. I cannot write more than a sentence or two without severe pain in my fingers and wrists"; "I am unable to type more than five minutes"; "I must use a speaker phone or head phones when talking on the phone. My arms and fingers go numb within two to three minutes" when talking on a telephone); sitting ("I am not able to sit for more than one hour, because it causes me severe pain and stiffness in hips, upper and lower back"); concentration ("I am not able to concentrate because I have experienced problems with my memory ... An example of my inability to concentrate is that I recently got lost when driving to places that I normally am. I forget where I am and why I am there. I can't even order in a restaurant without being confused or losing my words. As a result I am extremely frustrated and depressed. I have to lie down after a few hours of being awake"); driving ("I can drive approximately about 30 minutes or less ... I only go as far as 15 to 20 miles ... If I drive more than 20 miles, I experience pain level of 8 to 9 in my hips, upper back, and lower back"); hygiene ("I do need help with dress and personal hygiene"). Id. at H1709-12. Howard stated she had lost 15 pounds since "becoming disabled." Id. at H1712. She said that her "pain level on a best day is 5 and on a bad day it is a 10." Id. at H1712. Howard stated that her condition had deteriorated in the past six months, and that at no time during the past six months did she experience a time "when I could exceed the level of functionality or be more active than I have described above." Id. at H1713.
On June 19, 2006, Howard submitted to Hartford a detailed completed "Personal Profile evaluation — Ongoing" form reporting the same conditions and limitations she had reported in October 2006, and then again on June 30, 2006. AR at H259-67.
AR at H1440-41.
Id. at 1363 n. 5. Doyle was decided before Blankenship concluded that under Supreme Court precedent, conflict of interest was but a "factor" to be considered in an arbitrary and capricious review. Moreover, the Court's statement recognizes that traditional Rule 56 summary judgment principles do not apply in ERISA benefits decision cases under an arbitrary and capricious judicial review. Additionally, the court in Doyle upheld an administrative decision denying LTD benefits to a claimant claiming disability from fibromyalgia. In doing so, the court stated that "[t]here is no evidence in the record suggesting `a higher likelihood that [the conflict] affected [the administrators] benefits decision,' such as `a history of biased claims administration.'" Doyle, 542 F.3d at 1363 (quoting Glenn, 554 U.S. at 117, 128 S.Ct. 2343).
