KATHERINE POLK FAILLA, District Judge:
On July 24, 2012, Plaintiff William Wedge commenced this litigation under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1191c, 1202-1242, 1301-1461, against Defendants Shawmut Design and Construction Group Long Term Disability
Plaintiff is a former employee of Shawmut Design and Construction Group ("Shawmut"), a construction management firm. (56.1 Statement ¶ 2; AR 336-37). During the relevant time period, Plaintiff was a Senior Project Manager at Shawmut, whose responsibilities included overseeing construction operations for large-scale projects that required an advanced level of construction expertise; these projects included the construction and/or renovation of luxury and premier specialty retail stores, health clubs, spas, and fitness centers. (AR 328-29). Plaintiff's job required him, among other things, to travel via car and airplane; drive; walk; ascend and descend stairs, ladders, and scaffolding; conduct extended construction-site visual inspections; read and work with construction drawings, plans, and hard-copy and computer-based documents; and partake in financial and strategy meetings. (Id. at 331).
Shawmut established and maintained the Shawmut Plan, a benefit plan for its employees. (See AR 1-31). The Shawmut Plan, in turn, purchased Group Long Term Disability Policy No. 114007 (the "Policy") from Defendant RSLI to provide long term disability ("LTD") benefits to Shawmut Plan beneficiaries. (See 56.1 Statement ¶ 4). Under this arrangement, Shawmut was the Plan's Administrator, and RSLI was the claim review fiduciary with respect to the Policy and the Plan. (Id. at ¶¶ 5-6). In this role, RSLI had "the discretionary authority to interpret the Plan and the insurance policy and to determine eligibility for benefits." (Id. at ¶ 6).
As a Shawmut employee, Plaintiff was a participant in, and received coverage under, the Shawmut Plan. (56.1 Statement ¶ 3). Based on Plaintiff's rate of earning, he was classified as a Class 2 employee under the Policy. (Id. at ¶ 7). For such employees, the Policy defines disability, in relevant part, as follows:
(AR 10). The Policy also includes a provision that requires the offset of benefits received from what it termed Other Income Benefits, including any award of individual or family Social Security Disability benefits. (See id. at 18).
On February 23, 2009, while Plaintiff was employed by Shawmut, he was examined by Dr. Guarang Trivedi for a gray spot in the center of Plaintiff's field of vision in his right eye that had manifested two weeks earlier. (AR 300-01). In his medical report, Dr. Trivedi noted his impression that Plaintiff may have central serous chorioretinopathy ("CSCR") (id. at 300-01), which is also referred to as central serous retinopathy (56.1 Statement ¶ 11).
Based on the prognosis received from Dr. Charles, on March 26, 2009, Plaintiff informed Shawmut that he was unable to perform the regular functions of his employment due to his CSCR. (AR 328). Plaintiff ceased working for Shawmut as of that day, and submitted a claim for benefits under Shawmut's short term disability plan. (See id.). A few months later, in July 2009, Plaintiff's condition had not improved, and he applied for LTD benefits under the Policy. (Id. at 340-46).
RSLI granted Plaintiff's application for LTD benefits by letter dated April 8, 2010. (AR 257-58). In so doing, RSLI determined that Plaintiff became totally disabled from his Regular Occupation, as defined by the Policy, on March 27, 2009, and that benefits to him under the Plan were payable as of June 25, 2009, after the Elimination Period was satisfied. (Id.). In that same letter, RSLI suggested that Plaintiff apply for Social Security Disability ("SSD") benefits. More importantly for the instant litigation, RSLI informed Plaintiff that in order to qualify for LTD benefits beyond 24 months, Plaintiff must demonstrate that he is "totally disabled from performing the material duties of Any Occupation" as defined under the Policy. (Id.).
Plaintiff heeded RSLI's suggestion and applied for SSD benefits. In connection with that application, Plaintiff was initially represented by counsel suggested by
In connection with his SSD application, Plaintiff was examined by Dr. Martin Bernstein, the SSA's independent ophthalmologist. (AR 1536-41). Dr. Bernstein's examination revealed that Plaintiff had peripheral count finger vision and no near vision acuity in his right eye. (Id. at 1538).
The SSA initially denied Plaintiff's request for benefits. Subsequently, in January 2012, U.S. Administrative Law Judge Roberto Lebron awarded Plaintiff SSD benefits. (AR 1494-99). In reaching this determination, Judge Lebron noted that he gave "great weight" to the opinions of Dr. Charles and of Dr. David Robbins, Plaintiff's psychiatrist. (Id. at 1498).
After providing Plaintiff with LTD benefits for 24 months under the Policy on account of his demonstrated inability to perform the material duties of his Regular Occupation, RSLI informed Plaintiff by letter dated June 3, 2011, that he no longer qualified for LTD benefits because he had not demonstrated an inability to perform the material duties of any occupation, and thus had not satisfied the definition of "Totally Disabled" under the Policy. (AR 277-79). RSLI explained that although Plaintiff was unable to work in his prior occupation, he "appear[ed] capable of sedentary work activity." (Id. at 278).
To reach this determination, RSLI reviewed all of the information in Plaintiff's file, including medical records provided by Dr. Alphonso Aversa, Plaintiff's general physician; Dr. Seth Shifrin, who saw Plaintiff for an injury to his right thumb; Dr. Robbins; and Dr. Charles. (Id.). As relevant to Plaintiff's eye condition, Dr. Aversa, who saw Plaintiff for a comprehensive physical on May 18, 2010, indicated that Plaintiff's "visual loss has been unchanged," and that he was "followed regularly by ophthalmology." (Id. at 732). Dr. Charles indicated in a January 6, 2010 letter submitted in support of Plaintiff's initial claim for LTD benefits that Plaintiff complained of headaches "when having to do extended reading of the sorts he was required to do," a complaint that the doctor found consistent with the reported
RSLI also performed a Residual Employment Analysis ("REA"), which is designed to determine which occupation, if any, an insured has the ability to perform. (AR 741). After considering Plaintiff's medical information, along with his education and training, the REA concluded that in light of Plaintiff's physical restrictions and limitations, he was capable of performing one of the following occupations: Account Executive, Estimator, Media Planner, Public Relations Representative, or Advertising Sales Representative. (Id. at 742-43). Based on Plaintiff's entire file, including the medical records and the REA, RSLI concluded that Plaintiff would qualify for a subset of the occupations identified by the REA, namely, Account Executive, Media Planner, and Estimator. (Id. at 278).
On December 20, 2011, through counsel, Plaintiff appealed RSLI's decision to terminate his LTD benefits. (AR 776-86). Plaintiff submitted the following materials in support of his appeal: two letters from Dr. Charles; treatment notes and the Social Security report submitted by Dr. Robbins; records of Dr. Bella Malits, who handled Plaintiff's pain management; treatment records from his primary care providers, orthopedists, and other specialists; a report from a vocational consultant, Andrew Pasternak; and a personal statement from Plaintiff himself. (56.1 Statement ¶ 20).
These materials reflect that Plaintiff was examined by various physicians for an array of ailments, some of which were unrelated to Plaintiff's CSCR. Inasmuch as the parties have focused the instant motions on the medical evidence concerning Plaintiff's eye issues, the Court focuses on that evidence in this Opinion. In this regard, Dr. Charles reported that in comparing Plaintiff's examination results from May 22, 2010, and August 31, 2011, there appeared to be a "slight progression" in Plaintiff's condition. (AR 789). Dr. Charles concluded that Plaintiff would have the following visual capacities in an eight-hour workday:
(Id. at 791).
Andrew Pasternak conducted a comprehensive vocational assessment, functional capability evaluation, and employability study, in which he concluded that Plaintiff was unable to perform the material duties
(Id. at 809-10).
In his personal statement, Plaintiff related symptoms that he experienced as a result of his CSCR, and how he believed those symptoms restricted his ability to perform tasks that would be required for the positions identified by RSLI in its denial letter. (AR 971-78). In particular, Plaintiff stated that he was able to read and write on a computer for approximately one hour before he developed a severe headache that was often accompanied by substantial muscular-skeletal pain in his neck and back, blurred vision in his left eye, and dizziness. (Id. at 975). With respect to his neck and back pain, Plaintiff identified that he had "underlying orthopedic problems with [his] back and neck, principally a herniated disc," and that the CSCR caused Plaintiff "to strain and twist around to see images or text on the computer, exacerbating [his] back and neck pain." (Id. at 972). Based on his subjective limitations, Plaintiff concluded his "visual limitations and their physiological consequences" would prevent him from working in any of the occupations identified by RSLI even though Plaintiff believed that his "cognitive capacity [was] still up to the task." (Id. at 977).
By letter dated January 12, 2012, RSLI requested that Plaintiff attend an independent medical examination with Dr. Robert Josephberg on February 2, 2012. (AR 284). RSLI explained that upon reviewing the supplemental evidence that Plaintiff had provided in support of his appeal and consulting with RSLI's medical staff, it had determined that another medical opinion was appropriate. (Id.). Preparatory to the examination, Dr. Josephberg obtained Plaintiff's individual medical history and records documenting his CSCR. At the examination, Plaintiff provided Dr. Josephberg with a memorandum dated February 7, 2012, regarding Plaintiff's condition and treatment history, which Dr. Josephberg reviewed. (Plaintiff's Declaration dated Dec. 13, 2013, Ex. A).
After examining Plaintiff, Dr. Josephberg produced an initial report on or about February 21, 2012 (the "February 21 Report"). (AR 1581-91). The physical examination section of the February 21 Report related:
(Id. at 1583-84 (emphasis added)).
The medical record review section of the February 21 Report disclosed that Dr. Josephberg had reviewed Plaintiff's extensive medical file, including records from Dr. Charles and Mr. Pasternak. (AR 1584-86). Dr. Josephberg took particular note of Dr. Charles's observation in his May 26, 2010 record that Plaintiff's "level of vision is not consistent with his macular findings and [Dr. Charles] suspects [that Plaintiff] would benefit from an updated refraction," as well as Dr. Bernstein's observation that Plaintiff's large central scotoma in his right eye could not be explained based on Plaintiff's pathology. (Id. at 1586). From this information, Dr. Josephberg reasoned:
(Id. at 1586-87).
Dr. Josephberg further concluded, as to Plaintiff's ability to work:
(Id. at 1590). Dr. Josephberg similarly found "no restrictions and/or limitations based upon [his] ophthalmologic findings. (Id.). Dr. Josephberg noted, however, that his assessment did not address Plaintiff's cervical and/or lumbosacral spine complaints, and that additional testing could be conducted to identify the inconsistency between the objective tests and Plaintiff's subjective complaints. (Id. at 1590 (noting that electroretinogram ("ERG") testing "could be done to document the above statement and/or visual field testing"); see also id. ("I find no ophthalmologic reason where he cannot go back to a full-time job. Again, this does not address his lumbar problems or disc problems. I will agree that he might have lost some vision in his right eye, but totally disagree with his complaint that he cannot work based upon these findings.")).
In accordance with Plaintiff's request, RSLI provided Dr. Josephberg's February 21 Report to Plaintiff (and his reviewing physicians) for review and comment prior to RSLI making its final determination. (See AR 1604). RSLI also permitted Plaintiff to provide additional support for his application after that review. To that end, after reviewing the report, Dr. Charles arranged for Plaintiff to have an examination and ERG testing conducted by Dr. Stephen H. Tsang. (Id. at 1612-13).
Dr. Josephberg reviewed Dr. Tsang's additional testing, and produced an addendum to his report, dated May 9, 2012 (the "May 9 Addendum"). (AR 1686-91). Dr. Josephberg's opinion was not altered by Dr. Tsang's test. To the contrary, Dr. Josephberg found Dr. Tsang's report to confirm his belief that Plaintiff was exaggerating his subjective complaints. Dr. Josephberg stated: "When Dr. Tsang tested [Plaintiff], he had [count fingers] vision, a dramatic improvement from my tests. This shows that unfortunately William Wedge appears to have either a conversion syndrome or was malingering on the day I saw him to magnify his loss of vision." (Id. at 1687). Dr. Josephberg explained:
(Id. at 1689). In closing, Dr. Josephberg stated that Plaintiff is qualified to do "most jobs without a problem" and that his CSCR "does not warrant or cause the significant disability that [Plaintiff] is claiming." (Id. at 1690).
On August 6, 2012, RSLI issued a letter to Plaintiff denying his appeal. (AR 294-99). RSLI informed Plaintiff that after considering "the totality of evidence in the claim file, [it] conclude[d] that the information does not substantiate a physical condition that is at a level of severity that would preclude Mr. Wedge from work function. As such, he is not entitled to receive any LTD benefits in connection with his claim." (Id. at 294).
To reach this decision, RSLI reviewed Plaintiff's "claim file in its entirety" and considered the supplemental information that Plaintiff had provided to RSLI. (AR 294). This included reviewing medical records from, among other doctors, Dr. Charles and Dr. Tsang, which reports indicated that Plaintiff's inability to work was a result of the CSCR in his right eye. (Id. at 295-96). RSLI then pointed to both of Dr. Josephberg's reports, and noted the doctor's conclusions that Plaintiff "has full work capacity on a full-time consistent basis" and "can work at any capacity from an ophthalmological standpoint." (Id. at 296). RSLI also quoted at length from that portion of the May 9 Addendum in which Dr. Josephberg explained the bases for his opinion. (Id. at 296-97).
RSLI further explained that it had reviewed Andrew Pasternak's vocational report and the REA conducted by RSLI's
Finally, RSLI acknowledged that Plaintiff had been found entitled to SSD benefits, but noted that receipt of such benefits did not equate to an entitlement to LTD benefits because "[a] person's entitlement to each of these benefits may be based upon a different set of guidelines, which sometimes may lead to differing conclusions." (AR 298). As relevant to Plaintiff's case, RSLI observed that the SSA did not consider Dr. Josephberg's opinion, which, if it had, may have resulted in it reaching a different determination. (Id.).
On July 24, 2012, Plaintiff commenced this lawsuit against Defendants, claiming that RSLI had improperly terminated his disability benefits and found him ineligible for Any Occupation Benefits. Plaintiff seeks damages for all unpaid disability benefits under the Policy from the time RSLI terminated his benefits on June 25, 2011, until the date a judgment is issued in this case. (Dkt. # 1).
In contemplation of the parties filing dispositive motions, the Court raised the issue of the appropriate standard of review to apply to RSLI's denial of Plaintiff's benefits. (Dkt. # 18). In that regard, the parties submitted a joint letter, and then, because the Court required further briefing, supplemental letter briefs on the issue of whether a de novo or an arbitrary and capricious standard would apply. (Id.; Dkt. # 25). The parties agreed that, under the terms of the Shawmut Plan, claims decisions made by RSLI would ordinarily be subject to review under an arbitrary and capricious standard, in light of the Supreme Court's decision in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), because the Shawmut Plan vests discretion in RSLI. (See Dkt. # 26 at 1; Dkt. # 27 at 1).
From this common ground, the parties' positions diverged markedly. Plaintiff contended that any deference to which RSLI's decision would otherwise be entitled was forfeited "because [RSLI] did not exercise its discretion in the time or manner required by ERISA." (Dkt. # 26 at 1). Defendants, by contrast, argued that the Supreme Court has recognized no exceptions to the deferential review standard established in Firestone, and that because the Shawmut Plan grants RSLI discretionary authority, RSLI's termination of Plaintiff's benefits must be reviewed under an arbitrary and capricious standard. On September 10, 2013, the Court issued its Opinion, holding, in accordance with Supreme Court precedent, that RSLI's termination of Plaintiff's disability benefits would be reviewed under an arbitrary and capricious standard (the "September 10 Opinion"). Wedge v. Shawmut Design and Const. Grp. Long Term Disability Ins. Plan, No. 12 Civ. 5645(KPF), 2013 WL 4860157, at *11 (S.D.N.Y. Sept. 10, 2013).
With the standard to be applied determined, the Court held a pretrial conference with the parties to discuss the briefing
Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The movant may discharge this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir.2013) (finding summary judgment appropriate where the non-moving party fails to "come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim" (internal quotation marks omitted)).
If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial" using affidavits or otherwise, and cannot rely on the "mere allegations or denials" contained in the pleadings. Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted), and cannot rely on "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir.1985)).
ERISA "permits a person denied benefits under an employee benefit plan to challenge that denial in federal court." Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); see also 29 U.S.C. § 1132(a)(1)(B) ("A civil action may be brought ... to recover benefits due to [the plaintiff] under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."). Summary judgment is the typical procedural vehicle by which courts review a challenge to the denial of benefits under ERISA. See Muller v. First Unum Life Ins. Co., 341 F.3d 119,
"`ERISA does not set out the applicable standard of review for actions challenging benefit eligibility determinations.'" Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002) (quoting Zuckerbrod v. Phoenix Mut. Life. Ins. Co., 78 F.3d 46, 49 (2d Cir.1996)). It is well established, however, that courts are to review challenges to a denial of benefits pursuant to ERISA under a de novo standard, "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone, 489 U.S. at 115, 109 S.Ct. 948; see also Glenn, 554 U.S. at 112, 128 S.Ct. 2343 ("Where the plan ... grant[s] the administrator or fiduciary discretionary authority to determine eligibility for benefits, [t]rust principles make a deferential standard of review appropriate." (internal citations omitted) (emphasis in original)). Thus, where the administrator or fiduciary is granted discretionary authority, an arbitrary and capricious standard applies. Firestone, 489 U.S. at 111, 109 S.Ct. 948; see also Duncan v. CIGNA Life Ins. Co. of New York, 507 Fed.Appx. 61, 62 (2d Cir. 2013) (summary order) ("Where a plan gives the administrator `authority to determine eligibility for benefits or to construe the terms of the plan,' we review the administrator's interpretation of benefits for abuse of discretion." (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948)).
As this Court determined in its September 10 Opinion, RSLI's termination of Plaintiff's LTD benefits must be reviewed under an arbitrary and capricious standard. Wedge, 2013 WL 4860157, at * 11. This standard of review is "narrow," Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), and constitutes "the least demanding form of judicial review of administrative action," Badawy v. First Reliance Standard Life Ins. Co., 581 F.Supp.2d 594, 601 (S.D.N.Y. 2008). "Under this highly deferential standard of review, [a court] cannot substitute its judgment for that of the Plan Administrator and will not overturn a decision to deny or terminate benefits unless `it was without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Fuller v. J.P. Morgan Chase & Co., 423 F.3d 104, 107 (2d Cir. 2005) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.1995)); accord Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir.2009).
"Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the administrator and requires more than a scintilla but less than a preponderance." Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 138 (2d Cir.2010) (internal quotation marks omitted). As applied to a motion for summary
In this setting, Wedge bears the burden of proving that he continues to be eligible for disability benefits. See Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 256 (2d Cir.2004).
As indicated, the parties have filed cross-motions for summary judgment. Plaintiff's motion requests that the Court reverse RSLI's termination of his long term disability claim and reinstate his benefits, as well as award him costs of this action and reasonable attorneys' fees, because RSLI's determination that Plaintiff was not entitled to LTD benefits was an abuse of discretion. (Pl. Br. 1, 23). Defendants request that summary judgment be entered in their favor dismissing Plaintiff's complaint and leaving RSLI's determination intact because the administrative record provides substantial evidence supporting RSLI's termination of Plaintiff's benefits. (Def. Br. 1). The parties' arguments in favor of, and in opposition to, their respective motions are duplicative and overlapping. For that reason, the motions will be considered together.
In Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), the Supreme Court held that an ERISA-fund administrator that "both evaluates claims for benefits and pays benefits claims operates under a conflict of interest in making discretionary benefit determinations," and a district court, when reviewing the conflicted administrator's decisions, should weigh the conflict as a factor in determining whether there has been an abuse of discretion. Id. at 110-15, 128 S.Ct. 2343. The import of the conflict of interest is contingent on the circumstances of the particular case. Id. at 117, 128 S.Ct. 2343. The Glenn Court loosely defined the parameters of the potential circumstances that may or may not give rise to a conflict of interest:
Id. (internal citation omitted).
Under Glenn, the court engages in a two-part assessment. The initial inquiry simply asks "whether the plan administrator both evaluates claims for benefits and pays benefits claims." Durakovic, 609 F.3d at 138. If the answer to this question is affirmative, the court next determines "how heavily to weigh[] the conflict of interest thus identified, considering
Defendants admit that RSLI performs the dual role of insurer and decision maker, and that this "structural conflict" is a factor to be considered under the arbitrary and capricious standard. (Def. Br. 6). The first Glenn inquiry is answered in the affirmative, thus requiring the Court to consider the weight to be afforded this conflict. Defendants argue that no weight should be given to this conflict because there is no evidence that the conflict impacted RSLI's decision. (Id.). Plaintiff, on the other hand, argues that because RSLI operated in a "result-oriented manner for its own financial interest," this Court should afford its decision "a considerably reduced level of deference." (Pl. Br. 16). Specifically, Plaintiff identifies three factors that support giving weight to the conflict: RSLI's conduct in terminating Plaintiff's long term disability benefits after suggesting that he pursue SSD benefits; the credit RSLI gave to Dr. Josephberg's reports in the face of contrary opinions; and RSLI's noncompliance with the deadlines governing its review of Plaintiff's claim. (Pl. Br. 14-15).
As the Supreme Court recognized in Glenn, a conflict may be given more weight where an administrator encouraged the claimant to pursue SSA benefits, "receiv[ing] the bulk of the benefits of [the claimant's] success in doing so (being entitled to receive an offset from her retroactive Social Security award)," and then "ignor[ing] the agency's finding" when ultimately denying the claimant benefits. 554 U.S. at 106, 128 S.Ct. 2343. And to be sure, RSLI did suggest that Plaintiff pursue SSD benefits when, in April 2010, it initially granted Plaintiff limited LTD benefits for his inability to perform the responsibilities of his "own occupation." (AR 257). To that end, RSLI connected Plaintiff with counsel to represent him in his efforts to obtain SSD benefits (see id. at 215), and was advantaged when Plaintiff was approved for SSD benefits.
Although the Court is cognizant that these circumstances raise the potential for providing weight to the conflict of interest, RSLI's conduct overall does not manifest the conflict of interest of which the Glenn Court was concerned. RSLI did not ignore the SSA decision when denying Plaintiff LTD benefits. Quite the opposite: RSLI's final denial letter directly addressed the differing determinations. (Id. at 298). RSLI informed Plaintiff that it had "consider[ed] the determinations of Social Security," and identified why the SSA determination was not binding on RSLI. (Id.). RSLI also explained to Plaintiff that the SSA did not have the benefit of, among other medical evidence, the reports of Dr. Josephberg that, in RSLI's estimation, might have caused the SSA to reach a contrary conclusion. (Id.).
Plaintiff has provided no evidence that RSLI "has a history of biased claims administration," Glenn, 554 U.S. at 117, 128 S.Ct. 2343, and the record does not suggest any particular bias at play here. The record does indicate RSLI's efforts to reduce the "potential bias and to promote accuracy." Id. RSLI assigned multiple evaluators to assess Plaintiff's case at the initial and appeal stages, and had Dr. Josephberg complete an IME; it then allowed
The other grounds on which Plaintiff predicates his conflict of interest claim also ring hollow. "[P]rocedural unreasonableness," Glenn, 554 U.S. at 118, 128 S.Ct. 2343, such as RSLI's noncompliance with the deadlines, may be a factor in determining the import of a conflict of interest. Here, however, there is no evidence that RSLI's noncompliance impacted its final decision. Indeed, it only benefitted Plaintiff, inasmuch as the extended time during which his claim was processed afforded Plaintiff an opportunity to review and comment on Dr. Josephberg's February 21 Report, to be examined by an additional doctor, Dr. Tsang, and to submit additional evidence in support of his application. As for RSLI's decision to credit Dr. Josephberg's reports, its actions, as discussed more infra, were entirely appropriate. Because there is no evidence that the conflict affected RSLI's determination to deny Plaintiff LTD benefits, this factor warrants minimal, if any, weight, in the Court's assessment of whether RSLI's decision was arbitrary and capricious.
Next, the Court must consider the scope of the record on review. Plaintiff relies on evidence outside the administrative record in support of his motion, namely excerpts from the deposition of Dr. Josephberg conducted on April 5, 2013, and a prepared statement by Plaintiff dated February 7, 2012, that Plaintiff provided to Dr. Josephberg at the time of his IME, but which was not included in the administrative record ("Plaintiff's February 7 Statement"). Defendants contend that consideration of these materials is improper. (Def. Opp. 7).
The Court finds no good cause to expand the scope of the record beyond that contained in the administrative record. To the contrary, Dr. Josephberg's deposition excerpts and Plaintiff's statements do not contain any information that is not already generally reflected in the administrative record, and thus inclusion of this evidence would not impact the Court's ultimate decision. Conversely, exclusion of this evidence will not prejudice Plaintiff. Moreover, even if there were good cause, Plaintiff relies on excerpts from Dr. Josephberg's deposition to challenge the merits of RSLI's determination. "Although extra-record evidence might sometimes be admissible to assist procedural inquiries," introduction of such evidence "to challenge [an administrator's] substantive determination" is not appropriate. Richard v. Fleet Fin. Grp. Inc. Ltd. Employee Benefits, 367 Fed.Appx. 230, 233 (2d Cir.2010) (summary order) (citing Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646-47 (2d Cir.2002)).
There being no good cause to admit evidence outside the administrative record, the Court's decision will be based on that record alone.
Plaintiff charges that both RSLI's initial determination in June 2011 that he was not entitled to LTD benefits and its final decision on appeal in August 2012 confirming its initial finding were arbitrary and capricious. (Pl. Br. 17-21). Defendants contend that this Court should not separately examine the original claim decision and final decision on appeal, as Plaintiff's argument implicitly requires. (Def. Opp. 3). In particular, Defendants rely on two cases, Zarringhalam v. United Food & Commercial Workers Int'l Union Local 1500 Welfare Fund, 906 F.Supp.2d 140, 155-56 (E.D.N.Y.2012), and Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125 (2d Cir.2003), that, in broad terms, acknowledge that courts will review the administrative record in its entirety when
In denying Plaintiff's claim for LTD benefits, RSLI did not, and does not now, dispute that Plaintiff has CSCR in his right eye. RSLI's determination was simply that Plaintiff did not satisfy his burden under the Plan to establish that he was Totally Disabled, as defined under the Policy, and, further, that because Plaintiff did not prove that he was, he was not entitled to the benefits he sought. As made clear herein, RSLI determinations to terminate Plaintiff's benefits were reasonable, supported by substantial evidence, and not erroneous as a matter of law. Accordingly, RSLI decision was not arbitrary and capricious, and should not be disturbed.
As detailed above, RSLI's initial decision to deny Plaintiff LTD benefits was based on its conclusion that Plaintiff had not demonstrated his inability to perform the materials duties of "any occupation." (AR 277). "Any occupation is one that [Plaintiff's] education, training[,] or experience will reasonably allow." (Id.). In making this assessment, RSLI relied on Plaintiff's entire claim file, which included, among other information, medical records from Dr. Charles. These records documented that Plaintiff had been diagnosed with CSCR in his right eye (AR 654); was legally blind in that eye (id. at 278); and had a corrected vision of 20/30 in his left eye (id.). Yet the opinions contained in those records were not perfectly consistent. Dr. Charles informed RSLI in December 2010 that, given Plaintiff's "line of work," there were "no possible accommodations" that would enable him to perform the functions of his own occupation. (Id. at 689). However, Dr. Charles noted just a few months earlier, in his May 26, 2010 report, that Plaintiff's "level of vision is not consistent with the macular findings," and suggested to Plaintiff that updated testing might be warranted. (Id. at 692). Such testing does not appear to have been done at the time of the initial denial.
RSLI also arranged for an REA to be conducted to determine which occupations, if any, Plaintiff retained the ability to perform. (AR 741). The Vocational Rehabilitation Specialist ("VRS") who performed the assessment for RSLI had abundant expertise, including possessing a master's degree and receiving a "Certified Rehabilitation Counselor designation by satisfying the advanced education and experience requirements of the nationally accredited Commission on Rehabilitation Counselor Certification." (Id.). The REA concluded that Plaintiff had transferable skills that, despite his limitations from CSCR, enabled him to be employed in one of the following occupations: Account Executive, Estimator, Media Planner, Public Relations Representative, and Advertising Sales Representative. (Id. at 743). The REA explicitly indicated that the VRS, in reaching her conclusion that Plaintiff was suited for these positions, had considered Plaintiff's "ongoing visual impairment, lack of depth perception, [and] inability to work around moving machinery, at heights and[/]or on uneven ground." (Id. at 742).
Plaintiff proffers five challenges to RSLI's initial decision, some of which are reiterated with respect to RSLI's final decision, and claims that each renders the
Even assuming the applicability of this section to RSLI's initial decision, Plaintiff would still have not established that a review by a qualified registered nurse was insufficient. Section 2560.503-1(h)(3)(iii) provides, in relevant part:
29 C.F.R. § 2560.503-1(h)(3)(iii). The record demonstrates that "a health care professional who has appropriate training and experience" reviewed Plaintiff's initial claim. Specifically, the reviewing nurse had "the training and experience in the areas of nursing practice encompassed in [Plaintiff's] review." (AR 136).
Plaintiff's second argument, that the nurse claim analyst did not recognize Plaintiff's self-reported limitations as to his ability to read or use the computer for an extended time without experiencing severe headaches, is refuted by the record. The record notes that Plaintiff has "trouble writing, reading, [and] looking at [a] computer." (AR 138). In any event, RSLI's denial letter makes clear that it "reviewed all of the information in [Plaintiff's] claim file," which Plaintiff concedes includes documentation of his subjective complaints regarding secondary impairments (i.e., severe headaches, back and neck pain) caused by his CSCR. (Pl. Br. 17). The record does not demonstrate that RSLI "overlooked" this aspect of Plaintiff's claim, as he contends, but only that it afforded it less weight in considering the totality of the information before it.
Plaintiff's remaining arguments concern the REA: he contends that (i) because the letter terminating his benefits was issued one day after the REA was completed, the decision to deny Plaintiff's claim was a "foregone conclusion"; (ii) the REA was flawed because it was based "solely on the nurse-reported depth-perception limitations"; and (iii) it was improper for the REA to rely on the U.S. Department of Labor's Dictionary of Occupational Titles, Fourth Edition, Revised 1991 ("DOT") because it used outdated data and suggested occupations that required near visual acuity as a core ability. None of these arguments establishes that RSLI's decision was arbitrary and capricious.
The Court can summarily reject the first two of Plaintiff's challenges to the REA. For starters, RSLI's receipt of the REA one day prior to it issuing its letter does not, in general or on this specific record, denote any impropriety. Moreover, the Court's previous conclusion that the use of a registered nurse for the REA was appropriate
Similarly, the fact that REA identified occupations that listed "near acuity" as one of the physical demands does not in and of itself establish that RSLI's initial decision was an abuse of discretion. Plaintiff's medical records indicated that Plaintiff had 20/30 vision in his left eye when corrected and Dr. Charles's May 2010 report concluded that Plaintiff's "level of vision is not consistent with the macular findings." (AR 692; see also id. at 1540 (observation of Dr. Bernstein of inconsistency between Plaintiff's subjective complaints and objective tests)). Based on this, and the rest of the record, it was reasonable for RSLI to conclude that Plaintiff could perform occupations that required some degree of near acuity.
For all of these reasons, RSLI's initial determination to deny Plaintiff LTD benefits was not arbitrary and capricious.
RSLI's denial of Plaintiff's appeal of the termination of his LTD benefits was supported, in addition to all the materials relied upon when making its initial determination, by Dr. Josephberg's reports and the supplemental information provided by Plaintiff, such as reports from Dr. Tsang, Dr. Charles, and vocational evidence from Mr. Pasternak. Indeed, as RSLI noted in its denial letter, its decision was supported not only by Dr. Josephberg's assessments, but by opinions from Plaintiff's own treatment providers. Based on Plaintiff's "claim file in its entirety," RSLI concluded that "the information does not substantiate a physical condition that is at a level of severity that would preclude Mr. Wedge from work function." (AR 294). Instead, RSLI concluded that, based on Plaintiff's restrictions and limitations, he was capable of being employed as an Account Executive, Estimator, Media Planner, Public Relations Representative, and Advertising Sales Representative.
Dr. Josephberg's February 21 Report is a highly detailed, eleven-page assessment of Plaintiff that was completed after an in-person examination. (AR 1581-91). Based on his examination and a review of Plaintiff's entire claim file, Dr. Josephberg concluded that Plaintiff had "full work capacity on a full time consistent basis" and that he "can work at any capacity from an ophthalmological standpoint." (Id. at 1590). He directly considered Plaintiff's subjective complaints, but found those complaints not credible in light of the objective tests that he, and Plaintiff's medical providers, conducted. (Id.). Specifically, Dr. Josephberg stated:
(Id.). Dr. Josephberg then reaffirmed his conclusion after being presented with additional information from Dr. Tsang, finding that Dr. Tsang's examination further supported his belief that Plaintiff was malingering. (Id. at 1687). Dr. Josephberg reiterated that Plaintiff was "qualified to do most jobs without a problem," and that Plaintiff's "condition does not warrant or cause the significant disability that Mr. Wedge is claiming." (Id. at 1690).
Dr. Josephberg's reports provided a cohesive assessment of Plaintiff's condition; they accounted for the copious medical records in Plaintiff's file; and, contrary to Plaintiff's arguments, they were true to the records. Moreover, Dr. Josephberg did not summarily dismiss Plaintiff's subjective complaints. Rather, based on a review of all Plaintiff's records — from Dr. Charles's 2010 report to Dr. Tsang's examination — he concluded that Plaintiff was not experiencing the severe disability that he alleged. The doctor's reports display his search for medical data to support Plaintiff's complaints. Such data, however, was insufficiently present in the record. Accordingly, there was substantial evidence supporting RSLI's termination of Plaintiff's LTD benefits, and this decision was not arbitrary and capricious. See Durakovic, 609 F.3d at 141 (holding that a funds' determination was not arbitrary and capricious where the funds' determination was supported by the reports of two independent doctors, even in light of contrary findings by five treating physicians and the Social Security Administration); see also Fortune v. Grp. Long Term Disability Plan for Employees of Keyspan Corp., 637 F.Supp.2d 132, 142 (E.D.N.Y.2009) ("It suffices that there was plausible medical evidence in the record that a reasonable mind could accept as adequate to support the conclusion reached by [the administrator].").
Plaintiff bases his argument that RSLI's final denial of his benefits was arbitrary and capricious on four grounds: (i) RSLI improperly ignored the Pasternak vocational report and related data; (ii) RSLI unreasonably relied on Dr. Josephberg's reports; (iii) RSLI failed to pursue Dr. Josephberg's investigative recommendations; and (iv) RSLI improperly discounted the SSA determination awarding Plaintiff benefits. (Pl. Br. 19-22). Plaintiff also argues, in opposition to Defendants' motion for summary judgment (and based largely on snippets quoted from Defendants' moving papers), that RSLI misapplied the Policy's "any occupation" disability standard by interpreting it as meaning that Plaintiff is not disabled under the Policy "if he retains any residual work capacity." (Pl. Opp. 21).
To start, the Court rejects Plaintiff's last argument. Neither the record nor RSLI's arguments before the Court suggest that it misapplied the applicable standard. Rather, the record supports the conclusion that RSLI appropriately applied the "any occupation" standard, including identifying alternative occupations for Plaintiff based on his education, training, and experience.
Taking the remaining arguments in turn, the Court will begin with the first two, as they both target the propriety of RSLI's evidentiary review. Put simply, the record refutes Plaintiff's arguments. RSLI's denial letter states that it considered Mr. Pasternak's report and opinion, but that given Dr. Josephberg's opinions, it adhered to its initial decision that Plaintiff was capable of performing the identified occupations. (AR 297). "As the Supreme Court has explained, `courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor
The record does not indicate that RSLI ignored Mr. Pasternak's opinions, or any of the other evidence submitted by Plaintiff. Rather, objective evidence, including Dr. Josephberg's reports and, to a lesser extent, Dr. Charles's May 2010 report and Dr. Bernstein's report, supported RSLI's determination that Plaintiff was not disabled to the extent claimed. The Court does not dispute that later medical records, such as Dr. Charles's subsequent reports, augmented, and arguably clarified, his May 2010 report and Dr. Bernstein's report, both of which make mention of a disparity between Plaintiff's pathology and symptomatology. That conclusion, however, does not alter the Court's analysis, nor does it impose a requirement on RSLI to find in Plaintiff's favor. As just stated, RSLI was not required to "accord special weight to the opinions" of Plaintiff's physicians. Hobson, 574 F.3d at 85. The physician it retained to perform the IME, Dr. Josephberg, reviewed the same data and came to a different — but medically justifiable — conclusion.
Moreover, that RSLI's decision was not solely (and improperly, as Plaintiff contends) predicated on Dr. Josephberg's opinion is evident by its ultimate decision that Plaintiff was capable of performing a subset of the professions identified in the REA, as opposed to the totality of positions listed there, or as opposed to Dr. Josephberg's conclusion that he was "qualified to do most jobs without a problem." (AR 1690). See Rozek v. New York Blood Center, 925 F.Supp.2d 315, 338 (E.D.N.Y. 2013) (rejecting challenge to plan's decision to accord less weight to vocational expert Pasternak, where that assessment was "contrary to the functional capacity findings made in the course of the Defendants' medical review of the Plaintiff's claim and with the findings of the [Functional Capacity Evaluation]"), appeal withdrawn, No. 13-1083 (May 29, 2013).
In the same vein, RSLI did not ignore Plaintiff's subjective complaints, as Plaintiff contends. (Pl. Br. 17). The Second Circuit "has long recognized that subjective complaints of disabling conditions are not merely evidence of a disability, but are an `important factor to be considered in determining disability.'" Miles, 720 F.3d at 486 (quoting Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 136 (2d Cir.2001)). For this reason, "a reviewing court is obliged to determine whether a plan administrator has given sufficient attention to [the claimant's] subjective complaints... before determining that they were not supported by objective evidence." Id. (internal quotation marks omitted). The record reflects that sufficient attention was given to Plaintiff's complaints. Dr. Josephberg's medical assessments, which RSLI quoted at length and incorporated in its denial letter, directly addressed, but rejected, Plaintiff's subjective complaints. Dr. Josephberg wrote: "I find my objective
RSLI was expressly permitted to rely on the objective evidence that it did "to guard against fraudulent or unsupported claims of disability," as was the case here. Hobson, 574 F.3d at 88 ("We conclude that it is not unreasonable for ERISA plan administrators to accord weight to objective evidence that a claimant's medical ailments are debilitating in order to guard against fraudulent or unsupported claims of disability."); Fortune, 637 F.Supp.2d at 143 (holding that the administrator "did not abuse its discretion by failing to credit [the plaintiff's] subjective and unsubstantiated complaints of disabling fatigue," where two physicians noted that the plaintiff's subjective complaints and found them inconsistent with the objective medical evidence). It was Plaintiff's burden to proffer objective medical evidence to substantiate his subjective complaints — a burden Plaintiff failed to meet. Id. ("Several courts in the Eastern and Southern District of New York have found that it is not arbitrary for an administrator to require a claimant to offer objective medical evidence of their disabilities in order to be eligible for benefits.").
In sum, Plaintiff's claim that he provided substantial evidence that he was entitled to LTD benefits is not borne out by the record. As indicated previously, Plaintiff's own medical providers questioned the veracity of his proffered limitations. And Dr. Charles's mere incantation of Plaintiff's subjective complaints, such as his perceived visual limitations and severe headaches, do not convert those subjective complaints into objective data of Plaintiff's limitations.
Plaintiff's remaining two arguments lack merit. As noted, it was Plaintiff's burden generally, and specifically here under the Policy, to prove that he was eligible for continued disability benefits. (AR 14, 277). See generally Critchlow, 378 F.3d at 256 ("[A]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered...."); Ingravallo v. Hartford Life and Acc. Ins. Co., 563 Fed.Appx. 796, 799, 2014 WL 1622798, at *2 (2d Cir. Apr. 24, 2014) (summary order) ("[The insured] bears the burden of proving the she continues to be eligible for disability benefits." (citing Hobson)). With the burden placed squarely on Plaintiff, RSLI was under no obligation to pursue the additional medical evaluations identified by Dr. Josephberg. Wojciechowski v. Metro. Life Ins. Co., 1 Fed. Appx. 77, 81 (2d Cir.2001) (summary order) (holding that it was the claimant's burden under the insurance plan to submit objective testing); see also Young v. Hartford Life and Acc. Ins. Co., No. 09 Civ. 9811(RJH), 2011 WL 4430859, at *11 (S.D.N.Y. Sept. 23, 2011) ("The Second Circuit has never found that ERISA fiduciaries
Finally, the fact that RSLI's determination differed from the SSA decision is of no moment. "While SSA awards may be considered when determining whether a claimant is disabled, a plan administrator is not bound by the award and is not required to accord that determination any `special deference.'" Testa v. Hartford Life Ins. Co., 483 Fed.Appx. 595, 598 (2d Cir.2012) (summary order) (quoting Durakovic, 609 F.3d at 141); Rudolph v. Joint Indus. Bd. of Elec. Indus., 137 F.Supp.2d 291, 300 (S.D.N.Y.2001) ("A plan administrator making discretionary determinations as to eligibility is not bound by the determination of the Social Security Administration.").
The record does not reflect that RSLI improperly discounted the SSD award. The final denial letter to Plaintiff made clear that RSLI understood that it was not bound by the SSA decision, and that it questioned whether the SSA would have arrived at the same conclusion had it considered Dr. Josephberg's opinion. The Second Circuit "encourage[s] plan administrators, in denying benefits claims, to explain their reasons for determining that claimants are not disabled where the SSA arrived at the opposite conclusion," but it does not require that an administrator do so. Hobson, 574 F.3d at 92 (holding that the administrator's failure to explain why its decision differed from the SSA's determination did not render its decision denying the insured benefits arbitrary and capricious); Richard, 367 Fed.Appx. at 233 (identifying that there was "no merit to [the insured's] contention that the [administrator] was required to explain why its decision differed from that of the Social Security Administration"). As it happened, RSLI did explain its reasons for reaching the opposite conclusion as the SSA in light of the substantial evidence supporting the denial of Plaintiff's LTD benefits. (AR 298).
Based on this record, and considering the appropriate weight that must be afforded to the Glenn conflict, any rational trier of fact would conclude that RSLI's decision had adequate support, and was based on far more than "a scintilla" of evidence. Accordingly, Plaintiff's motion for summary judgment is denied, and Defendants' motion for summary judgment is granted.
For the foregoing reasons, Plaintiff's motion for summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED.
The Clerk of Court is directed to terminate Docket Entries 32 and 34, and mark this case as closed.
SO ORDERED.
