DENISE J. CASPER, District Judge.
Plaintiff Mark Dutkewych ("Dutkewych") and Defendant Standard Insurance Company ("Standard") have cross-moved for summary judgment on Dutkewych's claims for unlawful denial of benefits pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), and attorney's fees and costs. D. 43; D. 44. For the reasons discussed below, the Court ALLOWS the Defendant's motion for summary judgment, D. 43, and DENIES the Plaintiff's motion for summary judgment, D. 44.
Dutkewych filed his complaint on June 17, 2012, bringing ERISA claims against Standard and Mintz Levin Cohn Ferris Glovsky & Popeo's ("Mintz") PC Group Long Term Disability Plan ("the Plan"). D. 1. The Court allowed the parties' joint motion to dismiss Mintz from the action on September 5, 2012. D. 11. Dutkewych filed an amended complaint on September 27, 2012. D. 12. Both Standard and Dutkewych moved for summary judgment. D. 43; D. 44. After a hearing, the Court took both motions under advisement. D. 69.
Generally, the Court will grant summary judgment when there is no genuine dispute of material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In ERISA benefit denial cases, however, summary judgment "simply a vehicle for deciding the issue."
In an action brought pursuant to 29 U.S.C. § 1132(a)(1)(B), if the benefit plan at issue grants the administrator "discretionary authority to determine eligibility for benefits or to construe the terms of the plan," the Court applies an "arbitrary and capricious" standard of review,
To determine whether the administrator's decision was arbitrary and capricious, "the ordinary question is whether the administrator's action on the record before him was unreasonable."
Dutkewych was employed by Mintz as an associate attorney from 2005 to early 2009. D. 48 ¶ 1; D. 57 ¶ 1. Mintz sponsored and maintained an employee benefit welfare plan ("the Plan") which offered long-term disability ("LTD") benefits, D. 48 ¶ 2; D. 57 ¶ 2. Standard served as the Plan's claims administrator. D. 48 ¶ 3; D. 57 ¶ 3.
The Plan defines "disability" as the inability to perform the material duties of one's "Own Occupation" and a twenty percent loss in income. R. 812.
Under the Plan's twenty-four month limited benefit period ("the Two Year Limitation"), "[n]o LTD benefits will be payable after the end of the limited pay period, unless on that date you continue to be Disabled as a result of a Physical Disease, Injury, or Pregnancy for which payment of LTD Benefits is not limited." R. 826. The Plan defines "Physical Disease" as "a physical disease entity or process that produces structural or functional changes in the body as diagnosed by a Physician." R. 832.
Dutkewych's last day of active work at Mintz was October 3, 2008. R. 4972. Standard approved Dutkewych's LTD claim on April 16, 2009, citing the reason for his disability as "a combination of chemical dependency and psychiatric disorders of life threatening proportions." R. 3998. Because his disability fell under the categories of Mental Disorder and Substance Abuse, Standard noted in the claim approval letter that Dutkewych's benefits would be limited to twenty-four months. R. 3998.
On April 26, 2011, Standard notified Dutkewych that his LTD benefits would be ending, as the Two Year Limitation had expired and Dutkewych's "claim file [did] not support that [he was] Disabled by a Physical Disease or Injury." R. 2943. On October 20, 2011, Dutkewych requested that Standard review its decision to apply the Two Year Limitation, supplementing his appeal with evidence that he had been, and continued to be, physically disabled by Lyme disease. R. 2612. Standard notified Dutkewych's counsel by letter on May 4, 2012 (the "May 4 letter") that a review of the medical records did not substantiate that Mr. Dutkewych was precluded from performing his occupation R. 640;
Dutkewych asserts that prior to this benefits denial, both the Social Security Administration ("SSA") and Standard had acknowledged that based on his medical records, Lyme disease caused his disability. D. 46 ¶¶ 105-11, 117-20. Around April 28, 2009, Standard approved Dutkewych for premium waiver on his life insurance policy based on a disability. R. 3066. On June 10, 2010, the SSA approved Dutkewych for total disability benefits, finding that he was impaired by "Lyme disease, fibromylagia, muscle/joint pain, depression and substance abuse." R. 4175. Standard also noted in its electronic records on December 21, 2011 that it was reasonable that Dutkewych continued to be totally disabled based on the medical information received from Dr. Ruiz, a neurologist, regarding a Lyme disease diagnosis. R. 5160. The notes, as they appear in the administrative record, appear to be related to the monitoring of Dutkewych's premium waiver benefit by Standard's life insurance administrator.
Dutkewych visited his primary care physician, Dr. Serrano, three separate times in July 2008 with complaints of back pain, difficulty sleeping, fatigue, bruising on his left arm, thigh and torso, extended periods of diarrhea, a rash on his buttocks, bleeding of his gums and spontaneous nosebleeds. R. 4591-95. He also reported feeling clumsy and disoriented. R. 4591. Dutkewych was prescribed pain medication and referred to a hematologist regarding the bruising and bleeding.
On August 1, 2008, Dutkewych reported the same symptoms to Dr. Haynes, a hematologist, adding that he was experiencing night sweats, swollen hands and pain. R. 4524-26. Dr. Haynes discussed the possibility of Lyme disease with Dutkewych, who told the doctor that he did not recall receiving any recent tick bites or "recent viral exposure or tick exposure." R. 4524. Dutkewych's blood tests revealed negative results for Lyme disease antibodies, although the laboratory noted that negative test results did not rule out the possibility of borrelia burgdorferi infection (Lyme disease) because the patient could be in the early stages of producing detectable antibodies. R. 4530.
Dutkewych returned to Dr. Serrano's office for two additional visits in August 2008, complaining of the same symptoms. R. 4588-89. Dutkewych asked to be retested for Lyme disease; the blood work test results returned negative. R. 4588. Dutkewych was prescribed pain medication and referred to a rheumatologist and infectious disease specialist.
Rheumatologist Dr. Goldenberg examined Dutkewych on September 4, 2008. R. 4610. Dr. Goldenberg's follow up letter stated that Dutkewych's chief complaints were pain throughout his joints, "pins and needles" sensations in his extremities, muscle weakness, frequently dropping items and cognitive disturbances that affected concentration. R. 4610. Dutkewych summarized his physical symptoms as feeling like "my body is falling apart."
On November 4, 2008, Dutkewych visited a family practitioner, Dr. Hubbuch, who wanted to rule out Lyme disease, although he was aware Dutkewych had three negative Lyme disease tests previously. R. 622; 839-42. Dr. Hubbuch ordered a Western blot test and a Babeisa FISH test, neither of which had yet been performed on Dutkewych, from IGeneX laboratory in California. R. 841-42, 4570. The tests were conducted that month and the Western blot test returned positive results for Lyme disease under the IGeneX IGG criteria but negative results under "CDC/NYS" and "Babesia FISH" criteria tests. R. 4570-72. When Dutkewych returned for a follow-up visit with Dr. Serrano, the doctor noted as Dutkewych's problems obsessive compulsive disorder ("OCD"), anxiety, primary fibromyalgia syndrome and diarrhea. D. 4585.
On June 16, 2009, Dutkewych began seeing Dr. Isselbacher, who agreed to continue treating Dutkewych for Lyme disease. R. 3169. Dr. Isselbacher indicated that Dutkewych continued to see Dr. Isselbacher for the next year, as well as a neurologist, Dr. Ruiz. R. 3169-70. Standard observed during its medical review that Western blot testing ordered by Dr. Ruiz and performed on September 22, 2009, R. 2543, and December 10, 2010, R. 2454-56, both returned similar results to the 2008 tests — the IGeneX criteria indicated positive for Lyme disease, while the CDC/NYS criteria test indicated negative results. R. 628. A Lyme disease serology reflex test from June 2009 also returned negative results. R. 3674.
Beginning in March 2010, Dutkewych began seeing psychologist Dr. Statlender, PhD., because of her "professional experience with patients diagnosed with central nervous system Lyme disease." R. 2679. Dr. Statlender stated she specialized in helping these patients cope with the "neuropsychiatric sequela" of Lyme disease.
In a letter dated August 2011, Dr. Ruiz stated that Dutkewych had tested positive for and suffered from Lyme disease for many years and that he had been treating Dutkewych for Lyme disease since September 2009. R. 5172. He also wrote that "[i]n March 2008, Mr. Dutkewych developed symptoms consistent with multisymptom organ disease condition . . . and finally diagnosed with late Lyme disease during the fall of 2008." R. 5166. Dr. Ruiz suggests that Dutkewych had previously been misdiagnosed as not having Lyme disease. R. 5166-68. He also concluded that the disease "disables him from performing the duties of [his] occupation as an attorney."
In May and June of 2011, Dutkewych underwent neuropsychological testing by Dr. Shea, PhD., R. 2325, which revealed cognitive deficiencies compared to Dutkewych's "innate abilities," given his academic accolades and education. R. 2332. Dr. Shea concluded that Dutkewych's "cognitive capacities represented on this evaluation indicates a significant decline in function which cannot be explained by depression alone, and negated his ability to carry out the duties of his position as an Associate" at Mintz. R. 2340. Dr. Shea recorded that in his medical opinion, based on his training, education and experience, Dutkewych's "cognitive difficulties is primarily based in the resultant neurologic sequela of Lyme disease with central nervous involvement."
Dutkewych was seen at the Psychiatric Emergency Department of Cambridge Health Alliance on September 11, 2008, where he reported depression, suicidal thoughts and somatic symptoms. R. 4759. He stated "I don't know what to do . . . I need help."
In December 2008, Dutkewych was admitted to McLean Hospital for substance abuse. R. 4885. Dutkewych admitted that he was addicted to pain killers. R. 4881. Dutkewych was transferred to the Drug and Alcohol Abuse Treatment Program at McLean, R. 4890, and continued to participate in an outpatient program. R. 4300-22.
Dutkewych began seeing Dr. Zusky, a psychiatrist, in February 2009. R. 3420. Dutkewych reported struggling with depression and anxiety since college, but noted his most severe episode was in 2008.
Standard selected three independent physician consultants to review Dutkewych's disability claim. During the LTD claim's initial review in April 2011, Jennifer Baker was the lead claims analyst and Dr. Sigal, an internist and rheumatologist, provided the outside review of Dutkewych's medical records. R. 630-31, 2760. Dr. Sigal asserted that over the course of twenty years, he has conducted "extensive research on Lyme disease," writing over 250 chapters and papers on the disease and receiving awards for this research. R. 2760. Dr. Sigal also indicated that he made a "major contribution to a large clinical study of a preventative vaccine, extensive laboratory research on the immunopathogenesis of Lyme disease," as well as multiple testing studies, participation in clinical trial for antibiotic treatments of Lyme disease and "clinical descriptive studies of the clinical features of Lyme disease." R. 2760. Dr. Sigal indicated that prior to working for the pharmaceutical industry, he was chief of the rheumatology division of Robert Wood Johnson Medical School.
Upon review of Dutkewych's medical records, Dr. Sigal found that they did not "logically support a medical diagnosis of Lyme disease based on objective and scientific evidence." R. 2763. Dr. Sigal stated there was "ample evidence" to support Dutkewych's medical diagnoses of fibromyalgia, his history of drug use and psychiatric disorder, but that his health care providers were distracted by a "false diagnosis of `chronic Lyme disease.'"
After Dutkewych filed a claims appeal, Dutkewych's treating physicians, Drs. Raxlen, Shea and Ruiz, submitted additional medical reports on Dutkewych's behalf. R. 1386, 2287, 5166. Dr. Raxlen submitted a letter to Standard on December 13, 2011 disputing Dr. Sigal's conclusion, alleging that Standard hired Dr. Sigal to conduct the review because Dr. Sigal does not believe chronic Lyme disease exists. R. 1391. Dr. Raxlen questioned Dr. Sigal's motivation and credibility, given that Dr. Sigal never examined Dutkewych and is not a trained psychiatrist, even though he was hired to review files of a patient determined to have mental impairments. R. 1391, 1394-95.
As part of the appeals process, Standard hired two independent medical doctors to review Dutkewych's medical records to evaluate whether Lyme disease was the cause of his disabling condition. R. 631, 638. First, Standard consulted Dr. Raymond J. Dattwyler, an immunologist and past member of the CDC Lyme Disease Treatment Guideline Committee and the Infectious Disease Society of America. R. 518-522, 631. Dr. Dattwyler concluded that Dutkewych never had Lyme disease because his testing never produced positive results for Lyme disease based on the CDC's serology criteria. R. 497. Dr. Dattwyler explained that the IGeneX test used to diagnosis Dutkewych in 2008 did not meet the CDC testing criteria and produced a high rate of false positive results. R. 493-95, 497. Additionally, Dutkewych never had the bull's eye-shaped rash on his skin that develops at the site of the tick bite in more than ninety percent of Lyme disease patients. R. 489. Dr. Dattwyler opined that "any question of disability secondary to Lyme disease is moot. You cannot be disabled by something you do not have." R. 503. Further, Dr. Dattwyler supported Dr. Sigal's belief that chronic Lyme disease is a questionable condition, calling it an "ill-defined entity whose very existence is doubtful." R. 501. Dr. Dattwyler wrote that Lyme disease "is now being applied to patients with vague complaints both with and without a history of Lyme disease" and that chronic Lyme disease is "not accepted as a diagnosis by mainstream medicine." R. 497. Dr. Dattwyler stated:
R. 501.
Standard then consulted Dr. Robert Gant, a neuropsychologist, and requested that he specifically review Dr. Shea's report on the cause of Dutkewych's cognitive impairments. R. 638. Dr. Gant concluded that he was unable to establish the presence of inability to work in any capacity because the "insufficient, inconsistent and unreliable information is available to establish a conclusive diagnosis." R. 480, 482. Opining that Dr. Shea relied too heavily on chronic Lyme disease as the diagnosis, Dr. Gant believed that Dr. Shea did not consider alternative explanations for Dutkewych's test results. R. 482. Dr. Gant agreed with Dr. Dattwyler that Lyme disease "is not accepted as a diagnosis in mainstream medicine."
Dr. Dattwyler and Dr. Gant's medical opinions both were outlined in the May 4 letter to Dutkewych. R. 631-39. Standard concluded that "the assessments of Drs. Dattwyler and Gant [are] well reasoned and consistent with the medical evidence in Mr. Dutkewych's claim file when considered as a whole." R. 640. Standard upheld its decision to terminate benefits because Dutkewych was not disabled by Lyme disease, or any other physical disease, at the time when the Two Year Limitation expired in April 2011.
Dutkewych argues that Standard abused its discretion in several ways: (1) Standard erroneously relied on biased medical consultants who do not believe that chronic Lyme disease exists, D. 45 at 14; (2) Standard ignored the body of medical records showing that several of Dutkewych's treating physicians diagnosed him with and treated him for Lyme disease,
(3) the record establishes that Dutkewych was disabled by chronic Lyme disease,
The crux of Dutkewych's claim is that Standard abused its discretion by hiring reviewing consultants who do not believe that chronic Lyme disease exists and deferring to the opinions of those reviewing consultants, as opposed to the treating physicians who reached contrary opinions.
The Court first addresses the sufficiency of the reviewing consultant's Lyme disease expertise. ERISA regulations require that disability plan administrators consult independent medical consultants with "appropriate training and experience in the field of medicine involved in the medical judgment" during the initial and appeal claim review processes. 29 C.F.R. § 2560.503-1(h)(3)(iii)-(h)(4) (requiring plan to consult an appropriate health care professional in reviewing a claim on appeal);
The May 4 letter expressly specifies the medical qualifications of the independent consultants selected, which further persuades the Court that these consultants were qualified to provide a medical review. R. 631-32. Dr. Dattwyler, who provided the majority of the clinical data and review upon which Standard relied in the May 4 letter, was the board-certified Chief of Allergy, Immunology and Rheumatology at New York Medical College. R. 631.
Dr. Dattwyler also has specific experience with diagnosing Lyme disease — he was a member of both the CDC Lyme Disease Case Definition Committee and the Infectious Disease Society of America's Lyme Disease Treatment Guideline Committee, as well as the former cochair of the National Institute for Health's CDC Conference on the Laboratory Diagnosis of Lyme and Tick-Borne Infections.
Dutkewych further argues that Standard's choice to hire Dr. Sigal and Dr. Dattwyler is "particularly egregious because both have been financially rewarded for denying the existence of chronic Lyme disease," citing the amounts of money Standard paid to them for their reports in this case. D. 45 at 15. But which way any bias may cut here, between well qualified experts to conduct a review of this particular diagnosis, even one they disfavored, and the claimant's treating physicians who are invested in that diagnosis, does not undercut the reasonableness of Standard's decision.
Dutkewych next argues that by "relying upon the opinions of doctors who deny the existence of chronic Lyme disease, Standard has, in effect, created a categorical exclusion that cannot be found in the terms of the policy." D. 45 at 16. In support of this argument, Dutkewych cites the First Circuit's decision in
Along the same lines, Dutkewych's reliance on cases concerning chronic fatigue syndrome and fibromyalgia is unavailing. Many of those cases rested on the fact that insurance companies' erred in ignoring the best available methods of diagnosing these illnesses because for instance, they turn on self-reported symptoms, and thus, were difficult to diagnose.
Dutkewych next argues that Standard improperly discredited the opinions of his treating physicians who diagnosed him with Lyme disease. D. 45 at 19. While plan administrators may not "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician," they also are not required to give deference to the opinions of treating physicians.
The crux of the Plaintiff's claim is that the administrative record establishes that he was disabled by Lyme disease and that Standard intentionally classified Dutkewych's disability as a mental illness to avoid paying benefits past the Two Year Limitation, ignoring the possibility of a physical disability. As discussed above, the Court's role here is to determine whether Standard's decision was "supported by substantial evidence in the record."
In light of this standard of review, the Court cannot conclude that Standard abused its discretion in relying upon the opinions of retained medical experts who analyzed the claimant's medical documentation and reached a different conclusion from his treating physicians. Dutkewych points to evidence suggesting that he had Lyme disease and, in fact, diagnosing him with Lyme disease. In a letter dated August 2011, Dr. Ruiz stated that Dutkewych had tested positive for and suffered from Lyme disease for many years. R. 5172. Dr. Shea recorded in the spring of 2011 that in his medical opinion, based on his training, education and experience, Dutkewych's "cognitive difficulties is primarily based in the resultant neurologic sequela of Lyme disease with central nervous involvement." R. 2340. Further, Dutkewych tested positive for Lyme disease on multiple occasions under the IGeneX IGG criteria. R. 4570-72, R. 2543-56.
Standard, in "evaluat[ing] disability claims in the context of mainstream medical opinion," R. 631, chose to defer, however, to the opinion of its medical experts, who explained that the IGeneX criteria may lead to false positives. R. 634-36; R. 2761-62. Dr. Dattwyler concluded that Dutkewych never had Lyme disease because his testing never produced positive results for Lyme disease based on the CDC's criteria. R. 492-496. Dr. Dattwyler elaborated that the IGeneX test used to diagnosis Dutkewych in 2008 did not meet the CDC testing criteria and produced a high rate of false positive results. R. 493-95, 497. Additionally, Dutkewych never had the bull's eye-shaped rash on his skin that develops at the site of the tick bite in the vast majority of Lyme disease patients. R. 489. Dr. Dattwyler further noted that Lyme disease is "characterized by well-defined objective clinical abnormalities" and a review of Dutkewych's medical file did not show such "clinical manifestations." R. 488. Dr. Dattwyler also noted that although the initial diagnosis of Lyme disease is "largely a clinical diagnosis, this is not true after the first few weeks of infection."
Further, Dr. Gant, a neuropsychologist consulted by Standard, R. 638, concluded that Dr. Shea relied too heavily on chronic Lyme disease as the diagnosis and believed that Dr. Shea did not consider alternative explanations for Dutkewych's test results. R. 482. Dr. Gant agreed with Dr. Dattwyler that chronic Lyme disease "is not accepted as a diagnosis in mainstream medicine."
Although Dutkewych argues that the reviewing consultants' belief that chronic Lyme disease does not exist foreclosed the possibility the he could receive benefits for the condition, Dutkewych also recognizes that there remains a "contentious debate among health care providers" as to whether "chronic [Lyme disease] infection is rare or non-existent" or whether the "disease can be debilitating and persistent." D. 46 ¶¶ 28-30. As Dr. Statlender noted, only some experts believe that "blood tests should not be used to rule out Lyme disease when there is a strong clinical presentation." R. 2684. That Standard, in the wake of this developing area of medicine, relied upon the opinions that were more favorable to a denial of benefits does not amount to an abuse of discretion, in light of the substantial evidence in the record suggesting that Dutkewych did not have Lyme disease.
The Court finds
For these reasons, the Court holds that Standard did not abuse its discretion in concluding that Dutkewych was not disabled by Lyme disease.
Dutkewych's also argues that Standard's denial of his Lyme disease diagnosis is unreasonable considering that Standard's life insurance claims department and the Social Security Administration have both recognized his Lyme disease. D. 45 at 34.
First, SSA disability determinations generally are not binding on an ERISA analysis, as the two disability proceedings have different regulatory criteria.
Second, with regard to the life insurance waiver, Standard's life insurance department not only recorded that Dutkewych was "totally disabled" due to Lyme disease in December 2011, R. 5160, and continued to administer his premium waiver past the termination of his LTD benefits in April 2011. The Court cannot conclude, however, that this discrepancy constitutes an abuse of discretion in the LTD determination. Under the waiver of premium, for a claimant to be "totally disabled," the claimant must be unable to perform "with reasonably continuity the material duties of any gainful occupation" "as a result of Sickness, accidental Injury, or Pregnancy." R. 3034. The LTD plan, however, required a "physical disease," as opposed to "sickness." R. 826. Further, the evidence provides no indication that Standard consulted reviewing experts or weighed medical evidence to make its waiver of premium determination.
Accordingly, neither the SSA determination nor the premium waiver decision compels the conclusion that Standard abused its discretion in denying Dutkewych LTD benefits.
The parties also dispute the propriety of Standard's initial decision to limit Dutkewych's benefits by finding that he suffered from a limiting condition. D. 45 at 29-33; D. 47 at 25-32. While the terms of the Plan allows Standard to pay benefits for a "limited pay period" if it finds that the claimant is "disabled as a result of a Mental Disorder or any Physical Disease or Injury for which payment of LTD benefits is subject to a limited pay period," the Plan also provides that at the end of that limited pay period, "[n]o LTD benefits will be payable . . . unless on that date you continue to be Disabled as a result of a Physical Disease, Injury, or Pregnancy for which payment of LTD benefits is not limited." R. 826. Therefore, regardless of whether a claimant is subject to a limited pay period in the first instance for a mental health or other limiting condition, Standard must re-assess, at the end of that limited pay period, whether the claimant continues to be disabled as a result of some other physical condition. As discussed above, Standard made that assessment here and found that Dutkewych did not have Lyme disease, R. 640, which is the physical disease on which he relies his claim for benefits. R. 2612.
For the foregoing reasons, the Court ALLOWS the Defendant's motion for summary judgment, D. 43 and DENIES the Plaintiff's motion for summary judgment, D. 44.
