HONORABLE MICHAEL A. TELESCA, United States District Judge.
Farooq Khan, M.D. ("Plaintiff"), represented by counsel, commenced this action pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001,
The case was transferred to the undersigned on October 24, 2018 (Docket No. 49). On April 5, 2019, the Court issued an Order (Docket No. 51) finding that the
For the reasons discussed below, the Court rejects in part and accepts in part the R & R; grants Plaintiff's Motion for Summary Judgment/Alternative Motion for Judgment Pursuant to Fed. R. Civ. P. 52; denies Defendant's Motion for Judgment on the Administrative Record; and awards long-term benefits to Plaintiff under the "Your Occupation" and "Any Occupation" provisions of the Disability Policy.
"In an action tried on the facts without a jury ..., the court must find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). These factual findings and conclusions "may appear in an opinion or a memorandum of decision filed by the court."
The following section constitutes the Court's findings of fact, pursuant to Fed. R. Civ. P. 52(a)(1). The findings of fact are drawn from the Administrative Record.
Plaintiff is a board-certified neurologist with a number of medical issues dating back to at least 2005. Because Plaintiff continued to submit additional medical evidence during his appeal, the records cover a period extending into mid-2014. During that time, Plaintiff was examined in person and treated by at least twelve physicians, seven of whom were specialists in rheumatology: Drs. Frank Lipson, Yan Liu, Simon Carette, Larry Moreland, Ernesto Levy, Joseph Grisanti, and John Stone. No treating provider whose records are contained in the Administrative Record concluded that Plaintiff was capable of continuing to work as a neurologist.
On January 17, 2005, Plaintiff saw nephrologist Dr. George Wu for symptoms of proteinuria. He had "significant general fatigue" and right knee arthralgia without
Plaintiff underwent a whole body bone scan on August 24, 2005, at the request of rheumatologist Dr. Frank Lipson. There are a few handwritten treatment notes from Dr. Lipson in the record, but they are very difficult to read. The radiologist saw "unusual" bone uptake about the proximal tibiae and increased tracer accumulation in multiple small and large joints, which was "striking and may reflect a polyarthropathy." PLA-CL-IDI-000476. An MRI was advised but apparently never performed.
Plaintiff returned to see Dr. Wu on August 26, 2005, regarding his proteinuria. Dr. Wu noted Plaintiff's history of arthralgia in the knee area. Though the bone scan performed several days before showed increased bone uptake at the tibial-fibular junction, there was no definitive diagnosis of a rheumatological issue. Dr. Wu ordered a battery of renal tests. PLA-CL-IDI-000691-692.
At a February 8, 2006 visit with Dr. Wu, Plaintiff complained of arthralgia, particularly in the right knee. Plaintiff had no active joints or effusions. PLA-CL-IDI-000683-684. Dr. Wu requested additional testing in regard to Plaintiff's proteinuria.
On October 16, 2006, Plaintiff followed up with Dr. Wu for his proteinuria. PLA-CL-IDI-000678-679. Dr. Wu reported that in the last year, Plaintiff had symptoms of fatigue, malaise, paresthesia and polyarthralgia. That day, Plaintiff had a red left eye, as his scleritis was active. Dr. Wu noted that scleritis can be associated with Wegener's granulomatosis, polyarteritis nodosa, collagen vascular disease such as rheumatoid arthritis, and granulomatous disease such as sarcoidosis. Dr. Wu requested repeat serological testing.
A total body bone scan with spectrometry was performed on November 24, 2006, at rheumatologist Dr. Lipson's request. The radiologist reported mild focal uptake in both knees in keeping with arthropathy and "[a]ctivity also in keeping with arthritic change noted in both sternoclavicular joints and small joints of both hands and feet." PLA-CL-IDI-000473. There was no definitive diagnostic impression. Dr. Lipson ordered certain lab work done in 2005, which revealed that Plaintiff's anti-nuclear antibodies and rheumatoid factor were negative.
In a follow-up with nephrologist Dr. Wu on April 30, 2007, Plaintiff reported that he "feels fatigued," has "occasional pain at the tibial-fibular joint," and was experiencing paresthesia. PLA-CL-IDI-000674. Dr. Wu noted some muscle-wasting distally. He urged Plaintiff to obtain a nerve conduction study and asked him to repeat the renal function and serological tests.
Plaintiff was referred to rheumatologist Dr. Yan Liu by his former primary care physician Dr. Antoun A.M. Toma.
On November 26, 2007, Plaintiff was seen in follow-up by Dr. Liu for "small vessel vasculitis (possibly Wegener's [granulomatosis])[,]" the manifestations of which have included red cell casts, scleritis and joint pain. PLA-CL-IDI-000661. Dr. Liu noted that Plaintiff's repeat serology was unremarkable.
Plaintiff saw nephrologist Dr. Wu on January 18, 2008, in follow-up, for diagnoses of proteinuria and possible microscopic polyangiitis. He did have some occasional elbow pain and right patellar discomfort. Dr. Wu observed "no overt inflammation" and "no active joints." PLA-CL-IDI-000651.
On October 5, 2006, a handwritten note from ophthalmologist Dr. Calvin Breslin indicates that he saw Plaintiff for his left eye episcleritis with limbic keratitis. Dr. Breslin prescribed 60 mg of prednisone which should eventually be tapered to 40 mg. PLA-CL-IDI-000512.
Plaintiff saw rheumatologist Simon Carette, M.D. on March 18, 2009, for assessment of possible vasculitis. PLA-CL-IDI-001029-1031. Dr. Carette noted that for the past 6 months, Plaintiff had progressive left sub-costal fullness, progressive anorexia, decreased energy, and progressive burning sensations in the hands and feet bilaterally, and enthesitis of the right Achille's tendon, all of which improved significantly with prednisone. On examination, Plaintiff had diffuse erythema of left cornea with significant thinning, no tender or effused joints, and unremarkable neurological findings. Plaintiff's scleritis was noted to be severe, and Dr. Carette determined that an emergency consult with ophthalmologist Dr. Breslin was indicated. Dr. Carette found it "quite difficult to provide a unifying diagnosis" and accordingly requested more bloodwork.
Plaintiff saw Dr. Breslin again on March 19, 2009, at Dr. Carette's request, for Plaintiff's "active scleritis with corneal thinning of left eye" and inability to taper his prednisone dosage (10 mg) any further. PLA-CL-IDI-000514. Dr. Breslin indicated that Plaintiff should increase the prednisone to 60 mg daily and add an immunosuppressant, Imuran (azothioprine); once the eye was clear, he could taper off the prednisone. PLA-CL-IDI-000515.
Plaintiff returned to see Dr. Wu on March 20, 2009, who, as far as a renal diagnosis, wrote "[q]uery microscopic polyangiitis or Wegener's granulamatosis." Dr. Wu noted that when Plaintiff was on prednisone, his scleritis and polyarthralgia "improved significantly." PLA-CL-IDI-0005. However, he was still awaiting Dr. Carette's assessment as to further treatment.
There are no office visit notes or other medical records from these years in the Administrative Record. Although Plaintiff did see rheumatologist Dr. Larry Moreland on May 20, 2011, this note is not contained in the Administrative Record.
Plaintiff saw his new primary care physician, Todd Orszulak, D.O., on May 2, 2012, and June 13, 2012, and review of systems was negative for fatigue. PLA-CL-IDI-001313-1317. On September 17, 2012, Dr. Orszulak's review of systems was
On January 24, 2013, Plaintiff saw Dr. Orszulak. Review of his musculoskeletal system was negative for joint pain or muscle pain. PLA-CL-IDI-000279. On March 27, 2013, Plaintiff returned to see Dr. Orszulak for "[w]orsening fatigue" in regards to his "possible `Polychrondritis.'" He was taking prednisone for left eye episcleritis diagnosed in 2006 by Dr. Breslin, but it was not helping the fatigue or arthritis. PLA-CL-IDI-000285. Dr. Orszulak noted that Plaintiff was "+ + for fatigue." PLA-CL-IDI-000286.
Plaintiff underwent a rheumatology evaluation by Dr. Ernesto Levy, M.D. at Invision Health Brain and Spine Center on April 30, 2013. PLA-CL-IDI-001295-1298. Dr. Levy noted that
PLA-CL-IDI-001295. Dr. Levy observed that "[a]s of now, his illness remains undiagnosed[,]" but "[s]ome of the described features would have the prints of an inflammatory rheumatologic condition (scleritis, abnormal urine); however some other features are less specific (fatigue, dizziness)." PLA-CL-IDI-1296. Dr. Levy's "review of systems" was "[r]emarkable for extreme fatigue, headaches, and dizziness to the point that the patient would collapse; at times even holding himself to a fixed object so not to fall. He has experienced ear tinging, excessive thirst, and anxiety. He has also experienced swelling of his feet. Most symptoms exacerbate or are only evident when he is off prednisone. Moderate joint pain and important fatigability still occur at a dose of prednisone 10 mg p.o. daily."
Plaintiff saw rheumatologist Dr. Moreland on May 3, 2013, PLA-CL-IDI-000399-403, who noted that he had last seen Plaintiff on May 20, 2011.
On May 30, 2013, Plaintiff saw primary care physician Dr. Orszulak for his annual visit. PLA-CL-IDI-000281. On examination of Plaintiff's musculoskeletal system, Dr. Orszulak noted normal range of motion of all joints, no effusions, and no swelling or deformity.
Dr. Mallika Rajarathna, whose speciality is unclear but who appears to have been a primary care provider, saw Plaintiff on August 21, 2013, and September 4, 2013. Her notes are hand-written and very difficult to read. Dr. Rajarathna lists Plaintiff's diagnosis as "? Relapsing polychondritis" on one note and as "relapsing polychondritis —stable" on another note. PLA-CL-IDI-000638. Dr. Rajarathna noted that Plaintiff "plans to get disability."
On September 13, 2013, Plaintiff returned to see Dr. Moreland in Pittsburgh and reported he was "about the same" as in May of that year. On examination, Plaintiff had "[s]light tenderness of the left earlobe" without significant redness; his nasal cavities appeared normal. With regard to his musculoskeletal system, Dr. Moreland noted "[n]o active synovitis." PLA-CL-IDI-000409. Dr. Moreland noted that Plaintiff was "currently maintained on low dose prednisone" and advised him to return in 6 months.
Plaintiff consulted with two new rheumatologists in 2014, after he filed his disability claim: Dr. Joseph M. Grisanti and Dr. John H. Stone. Both agreed that he was totally disabled. Their evaluations and reports are discussed in more detail in Section V.A,
On October 24, 2011, Plaintiff obtained a position as a neurologist at Mount St. Mary's Hospital ("the Hospital") in Lewiston, New York. The Hospital is now known as Ascension Health. In connection with his employment application, Plaintiff was asked to complete a medical history questionnaire, essentially a "check-the-box" form, and undergo an examination (which was "[n]ormal"). PLA-CL-IDI-000967-973. Plaintiff checked the boxes indicating that he had high blood pressure, arthritis, and diabetes mellitus, and that he had "pain in muscles, joints, stiffness,
On June 15, 2012, Plaintiff applied for an individual disability benefit policy through Ascension Health from Defendant. Defendant issued Disability Income Policy No. 06-6297809 ("the Disability Policy") with an effective date of July 1, 2012. PLA-AP(6297809)-000001. The Disability Policy is governed by ERISA and provides for a basic monthly disability benefit of $6,249 for an insured under age 64 when the relevant disability occurs, until the insured reaches age 67.
PLA-AP(6297809)-000020 (boldface in original).
PLA-AP(6297809)-000022 (boldface in original).
PLA-AP(6297809)-000021 (boldface in original).
PLA-AP(6297809)-000022 (boldface in original).
PLA-AP(6297809)-000020 (boldface in original).
As far as the proof required for establishing entitlement to benefits, the Policy provides as follows:
PLA-AP(6297809)-000027 (boldface in original).
A rider to the Policy provides that "Disability or Disabled ... is amended to include Residual Disability or Residually Disabled." PLA-POL(6297809)-IDI-000028. The rider states that
PLA-POL(6297809)-IDI-000030.
Plaintiff's last day of work at the Hospital was June 9, 2013.
In support of his disability benefits application ("Application"), Plaintiff submitted an Attending Physician Statement ("APS") from Dr. Moreland, whom he had first seen on September 4, 2009, and had most recently seen on May 3, 2013.
In a letter dated June 13, 2013, addressed to the Hospital, Dr. Orszulak stated that Plaintiff "should stop work as of June 10, 2013, based on the advice of his Rheumatologist." PLA-CL-IDI-000887.
Defendant requested, by letters dated May 9, 2013; May 20, 2013; and June, 19, 2013, that Plaintiff complete and submit an Individual Statement, Authorization, and Occupational Description. PLA-CL-IDI-000033, 51, 55. In his Individual Statement, Plaintiff indicated that the "[c]ondition
On the Occupational Statement, Plaintiff indicated that his "job title" was "physician (neurologist)." PLA-CL-IDI-000114. The form asked him to "list and describe [his] occupational duties" and indicate how many hours he spent on each duty each week.
On July 18, 2013, Beth Robinson, Senior Disability Benefits Specialist ("Benefits Specialist Robinson"), conducted the initial phone interview with Plaintiff. PLA-CL-IDI-000168-172. Plaintiff informed her that he has had disabling medical condition "since 2006 and it gradually progressed." PLA-CL-IDI-000168. Plaintiff explained that he is now on prednisone, which is "taking care of his eye and arthritis," but his "fatigue keeps increasing." The pain sometimes "breaks through" and he "has to go into the hospital." When he saw patients, he had "difficulty standing and walking" and "avoided standing as much as he could" because "[i]t felt like he had 1000 lbs on his legs and he would fall[,]" and the prednisone "also made him dizzy." PLA-CL-IDI-000169. When he saw a patient, he would "immediately" look to see if there was a chair, but if not, he "held onto the patient's bed, since he did not trust himself to stand for a long time."
On October 20, 2013, Dr. Moreland submitted another APS as requested by Defendant. Under the section on Functional Capacity, Dr. Moreland indicated that on a day-to-day basis, Plaintiff could sit, stand, walk, climb, twist/bend/stoop, reach above shoulder level, and operate heavy machinery "[o]ccasionally," which the form defined as "1-33%" of the time. PLA-CL-IDI-000616. He could occasionally lift up to 10 pounds, but he could never lift greater than 10 pounds.
Defendant's Senior Vocational Resource Consultant, David Gaughan ("VRC Gaughan"), reviewed the file including Plaintiff's billing production reports, physician statements, occupational description, and statement from his previous employer. In a report issued August 29, 2013, VRC Gaughan stated that in his opinion, Plaintiff's billing production was low for the period of
PLA-CL-IDI-000348 (quoting PAQ Services, Inc.'s Enhanced Dictionary of Occupational Titles, data as of 8/29/13). Gaughan also listed the "[c]ognitive considerations" entailed in Plaintiff's job, which included maintaining attention and concentration, adhering to medical protocols and standards, making independent medical judgments, and communicating clearly in speech and written language.
Benefits Specialist Robinson subsequently requested a review of Plaintiff's Application from in-house medical consultant Norman H. Bress, M.D., board-certified in internal medicine and rheumatology. In her request, Benefits Specialist Robinson noted that the "R[estrictions] & L[imitations]" assessed by Dr. Moreland— that Plaintiff was "[u]nable to work"— were "unclear and further review will be needed." PLA-CL-IDI-000539. Benefits Specialist Robinson requested that Dr. Bress answer the following questions: "1. Are R & L's supported as per Dr. Moreland? If so, when did R & L's begin? 2. What is the duration of the R & L's? 3. When should [medical record] be updated for review?"
Dr. Bress issued his report on October 8, 2018. PLA-CL-IDI-000539-543. After he "reviewed the entire medical file," Dr. Bress agreed that Plaintiff's "physical findings (although minimal) are consistent with a diagnosis of RP [i.e., relapsing polychrondritis]," although he was "unable to locate results of a cartilage biopsy to confirm the diagnosis."
PLA-CL-IDI-000542. With regard to the other diagnosis listed on Dr. Moreland's APS (polyarthritis), Dr. Bress observed that examinations and laboratory findings have revealed no abnormal joint findings (e.g., no active joints or synovitis, negative antinuclear antibodies and rheumatoid factor) to suggest the presence of a polyarthritis. Therefore, Dr. Bress opined, if a polyarthritis is present, it is extremely mild and does not support restrictions or limitations. Finally, none of Plaintiff's co-morbid conditions (hypertension, steroid induced diabetes, dyslipidemia, scleritis in the left eye, polyneuropathy, vitamin D deficiency, osteoarthritis, and osteopenia) were being claimed as impairing. Taking into consideration all of Plaintiff's conditions, both individually and in totality, it was Dr. Bress's opinion that restrictions and limitations are not supported on a physical basis.
On October 15, 2013, Dr. Bress spoke with Dr. Moreland via telephone and submitted an addendum to his report that same day, PLA-CL-IDI-000562, summarizing the call as follows:
PLA-CL-IDI-000569. Also on October 20, 2013, Dr. Bress sent a letter to Dr. Moreland, repeating the above summary, for purposes of confirming the essence of their conversation. PLA-CL-IDI-000569-570. Dr. Moreland returned a copy of Dr. Bress' letter, on which he included the following handwritten note:
PLA-CL-IDI-000612.
After reviewing this response, Dr. Bress's opinion remained "unchanged" because Dr. Moreland failed to provide "supporting evidence[,]" "such as findings on exam that the insured appeared fatigued or chronically ill, had difficulty with movements such as rising onto and off the exam table, or other clinical findings." PLA-CL-IDI-000621-622.
Meanwhile, Dr. Bress attempted to schedule a peer phone call with Plaintiff's most recent primary care provider, Dr. Rajarathna, but was unable to do so. Accordingly, he sent her several questions to answer. In particular, she was asked to list any restrictions (activities which Plaintiff should not perform) and limitations (activities which he is unable to perform). Dr. Rajarathna sent a letter on November 29, 2013, stating in pertinent part, that Plaintiff's "mental situation is greatly affected by his disability," that he "says he doesn't have any physical strength to maintain any function," and that he is "unable to maintain
Meanwhile, in a phone call with Benefits Specialist Robinson, on November 8, 2013, Plaintiff's attorney at the administrative level, Michael Quiat, Esq. ("Attorney Quiat") stated that "he spoke with Dr. Moreland and does not think the physician understands R[estrictions] & L[imitation]s. He will talk with the doctor to verify if he will provide additional information to us" about R & Ls. PLA-CL-IDI-000719. On November 18, 2013, Dr. Moreland sent a follow-up letter to Dr. Bress to clarify his position regarding Plaintiff's restrictions and limitations. He stated,
PLA-CL-IDI-000754.
In an addendum to his report dated November 18, 2013, Dr. Bress indicated that notwithstanding Dr. Moreland's latest letter, his opinion remained "unchanged." PLA-CL-IDI-000767.
Dr. Bress also evaluated Dr. Rajarathna's letter, which did not change his opinion because she "lists symptoms, but no physical findings." Dr. Rajarathna mentions lack of physical strength, but does not mention documentation of muscle weakness on exam; likewise, she mentions Plaintiff's "mental situation" but does not provide any cognitive deficit noted on exam. PLA-CL-IDI-000767-768. Dr. Bress observed that since the "physical findings and results of lab tests are not in dispute, but rather the interpretation of these findings as they relate to the insured's functionality, a DMO [Designated Medical Officer] rather than an IME [Independent Medical Examination] opinion will be requested." PLA-CL-IDI-000768.
Dr. John G. Paty, Jr., board-certified in internal medicine and rheumatology, was the DMO who performed a paper-review and concurred with Dr. Bress's opinion. PLA-CL-IDI-000772-775. Dr. Paty's December 5, 2013 report consists almost entirely of a recitation of the medical records. His opinion was that "[w]ithin a reasonable degree of medical certainty," "the medical record did not support impairment noted by Dr. Moreland" "because [the] physical findings[,]" the "laboratory data[,]" "the claimant's activities," the absence [of] medication changes with recent reported symptoms, with Prednisone continued at the same dosage, and the six-months return visit with Dr. Moreland rheumatology AP were inconsistent with impairment due to Relapsing
By letter dated December 11, 2013, Benefits Specialist Robinson informed Attorney Quiat that Defendant was denying Plaintiff's claim, PLA-CL-IDI-000804-810, because the "medical information ... received does not support an impairment that would prevent him from being able to perform the duties of his occupation. As such, he is not eligible to receive Total Disability benefits, Residual Disability benefits, Recovery benefits or Waiver of Premium." PLA-CL-IDI-000805. Benefits Specialist Robinson explained that the medical records "do not support an impairment because physical findings, laboratory data, Dr. Khan's activities, the absence of medication changes with recent reported symptoms and Prednisone continued at the same dosage, as well as the six-months return visit with his treating physician are inconsistent with impairment due to Relapsing Polychondritis or pain due to polyarthralgia and fatigue." PLA-CL-IDI-000805. The denial letter also noted that Plaintiff's "Individual Disability Status Update forms completed in July and August 2013 noted difficulty with mobility, fatigue, and any form of physical exertion, which is inconsistent with physical findings noted by Dr. Moreland in 2013 and by Dr. Orszulak." PLA-CL-IDI-000805-806. Moreover, Plaintiff's "reported day-to-day activities of reading, computer use, occasional household chores noted in his statements, working until June 2013, and grocery shopping are inconsistent with an impairment of recurrent polychondritis." PLA-CL-IDI-000806. As to the diagnosis of polyarthritis, Benefits Specialist Robinson observed that Plaintiff's "examinations revealed no abnormal joint findings to suggest the presence of this condition[,]" and therefore, "if this condition is present, it is extremely mild and does not support restrictions or limitations."
Attorney Quiat requested Plaintiff's claim file via letter dated April 21, 2014, and the matter was reassigned to Lead Appeals Specialist Richard A. Enberg ("Appeals Specialist Enberg"). PLA-CL-IDI-000839. Plaintiff's formal appeal and letter brief were filed on June 9, 2014. PLA-CL-IDI-000865-880. Attorney Quiat also submitted a supporting certification from Plaintiff, PLA-CL-IDI-000881-885, and several medical records that were already on file with Defendant. In addition, Attorney Quiat submitted a new opinion from rheumatologist Dr. Joseph M. Grisanti, whom Plaintiff saw on April 10, 2014. PLA-CL-IDI-000896-898. Dr. Grisanti noted Plaintiff's history of scleritis, proteinuria, relapsing polychrondritis and arthralgias. Dr. Grisanti recommended that Plaintiff pursue early retirement or
Finally, Attorney Quiat submitted a Notice of Award from the Social Security Administration ("SSA"), indicating that Plaintiff was entitled to monthly disability benefits beginning December 2013. PLA-CL-IDI-000900-903.
By letter dated July 24, 2014, Attorney Quiat submitted a supplemental report from rheumatologist John H. Stone, M.D., M.P.H., dated July 23, 2014, along with Dr. Stone's clinical notes of his appointment with Plaintiff on May 29, 2014. PLA-CL-IDI-000954-958. Dr. Stone opined that the diagnosis of polychondritis was confirmed not only by the records but by the test results and his clinical evaluation of Plaintiff. Given this diagnosis, Dr. Stone stated, Plaintiff's complaints of severe fatigue and pain were "reasonable and expected symptoms of his [r]elapsing [p]olychrondritis." Dr. Stone indicated that he was familiar with the types of physical requirements demanded by hospital-based medicine, and that, given Plaintiff's diagnosis of relapsing polychronditis and physical manifestations of the condition, Plaintiff was totally disabled from his prior occupation. Dr. Stone explained that his opinion was based on his past experience in treating relapsing polychrondritis, his clinical observations of Plaintiff, and a review of his medical history.
With Plaintiff's permission, Appeals Specialist Enberg obtained the Social Security Disability Insurance ("SSDI") file from the SSA. PLA-CL-IDI-000917. The SSDI file was received by Defendant at some point after August 15, 2014, and before October 17, 2014.
Plaintiff's application was completed online and processed over the phone. The SSA representative who interviewed Plaintiff described him as polite and knowledgeable, and stated that he "sounded very tired." A final decision was issued by a single decision maker
Defendant's in-house medical consultant Beth Schnars, M.D., board-certified in internal medicine, conducted a paper review of Plaintiff's claim and issued a report. PLA-CL-IDI-000934-939. In pertinent part, Dr. Schnars agreed that relapsing polychondritis, "a rare autoimmune disorder characterized by progressive inflammation of cartilage particularly of the ears, nose, and trachea with cartilage destruction," "can also be associated with polyarthritis and ocular symptoms[,]" such as alleged by Plaintiff. PLA-CL-IDI-000937. Dr. Schnars commented that the treatment for this disorder was "low dose steroids with addition of other immune modulating agents for unremitting symptoms."
Dr. Schnars noted that rheumatologist Dr. Grisanti's office visit note "remarked on tenderness of the upper aspect of the left ear without swelling/redness," and Dr. Moreland mentioned "left eye ptosis with nasal labial flattening in [his] letter of advocacy in 11/13[,]" but "[t]hese findings have been present since 2006[,] are not suggestive of polychondritis[,] and would not contribute to functionality." PLA-CL-IDI-000937. Serial connective tissue panels and inflammatory markers have all been negative since 2005. Dr. Schnars observed that while Plaintiff's early bone scans noted mild peripheral joint uptake, no provider has recently recommended bone imaging "as would be anticipated for unremitting pain limiting functionality." PLA-CL-IDI-000937. Morever, there have been no medication changes recommended as would be anticipated for uncontrolled
Dr. Schnars noted that Dr. Moreland "recommended work cessation due to fatigue/arthralgias when presented with disability papers[,]" in May 2013, but a primary care note from May 30, 2013, "documented no reports of arthralgias or ear pain with normal exam."
Considering Plaintiff's general medical diagnoses (polychondritis, episcleritis, arthralgias, diabetes, fatigue, chronic pain, hypertension and neuropathy) collectively and individually, in a "whole person analysis," Dr. Schnars found they "do not rise to the level of impairment from or since the [date of disability]" because all of Plaintiff's supporting medical expert opinions from Dr. Moreland, Dr. Rajarathna, Dr. Grisanti, and Dr. Stone were "based on self reports of long standing fatigue without supporting evidence of abnormalities on exam or lab findings and lack of aggressive medical management." After reviewing rheumatologist Dr. Stone's letter and clinical notes, Dr. Schnars issued an addendum finding that they did not change her opinion. PLA-CL-IDI-000960.
Appeals Specialist Enberg, after conferring with Dr. Schnars, decided to obtain a "no deference" medical review of the file by an outside physician credentialed in rheumatology. Dr. Schnars provided the following questions for the outside rheumatologist's paper IME: whether the medical records support the diagnosis of polychondritis; whether the medical records support any restrictions or limitations for any period from June 10, 2013; whether the intensity of treatment, frequency of evaluation, exam findings and diagnostic testing consistent with severity of underlying disease from polychondritis or other medical conditions; and whether the medical records reflect any change in condition around the date of disability from chronic medical issues. PLA-CL-IDI-000974.
On August 15, 2014, rheumatologist Alfonso Bello, M.D., of the Illinois Bone & Joint Institute, was sent Dr. Schnars's questions, Plaintiff's medical records, and the in-house file reviews performed by Defendant's medical consultants. Dr. Bello was not sent the SSDI file, as it had not been received by that point. PLA-CL-IDI-000986-989.
Dr. Bello submitted his report to Defendant on September 17, 2014. PLA-CL-IDI-001330-1333. In response to Defendant's specific questions, he concluded that the diagnosis of relapsing polychrondritis was confirmed based on the history, clinical examination, and evaluation by two different board-certified rheumatologists. PLA-CL-IDI-001332. Notwithstanding the diagnoses of relapsing polychrondritis and complaints of arthralgias and fatigue, Dr. Bello found "there has been no clear evidence of physical limitations based on objective clinical evidence specifically of abnormal musculoskeletal examinations that would warrant restrictions or limitations based on [a] reasonable degree of medical knowledge."
On October 17, 2014, Appeals Specialist Enberg sent Attorney Quiat a letter stating that Defendant was denying Plaintiff's appeal. PLA-CL-IDI-001345-1351. The letter chiefly relied on Dr. Bello's file review. Defendant purported to distinguish the SSDI decision on the basis that the SSA did not include a review by a physician, that it was "inconsistent with the medical evidence," that the SSA did not consider unspecified evidence subsequent to October 31, 2013, which was "not supportive of disability," and that the "comprehensive medical reviews by the Unum physician and the specialty medical examiner are compelling evidence in support of work capacity for your occupation."
On November 19, 2014, Defendant submitted additional, unspecified records to Dr. Bello. PLA-CL-IDI-001364. On December 5, 2014, Dr. Bello issued a brief addendum stating that his "previous opinion stands." PLA-CL-IDI-001372-1373. On December 22, 2014, Appeals Specialist Enberg notified Attorney Quiat about having forwarded the additional records to Dr. Bello, and that review of these records did not change Dr. Bello's opinion. PLA-CL-IDI-001378-1379.
After reviewing the entire Administrative Record, it is apparent that—in the opinions of Defendant and its in-house and external medical consultants—Plaintiff's claim for long-term disability benefits stood or fell on the credibility of his subjective complaints. A district court's determination as to whether a claimant's complaints of pain and fatigue are or are not credible is a finding of fact subject to appellate review for clear error.
The Court is guided in its inquiry by the two-step credibility analysis utilized by adjudicators in the SSDI context.
Turning to the next step, the Court notes that the SSA found that the severity of Plaintiff's symptoms were wholly substantiated by his own statements in his application and the medical records from Drs. Moreland and Orszulak (which represented but a small subset of the records reviewed by Defendant and its consultants). None of the physicians who examined Plaintiff ever suggested that he was malingering or engaging in symptom magnification.
The Court finds the attempts by Defendant and its medical reviewers to dissect Plaintiff's credibility to be unavailing. For instance, in-house medical consultant Dr. Schnars noted that when rheumatologist Dr. Stone examined Plaintiff in 2014, there was "no documentation of fatigue or limitations of functionality during [Dr. Stone's] 5/14 evaluation which is commented upon during 7/14 letter of advocacy." However, a review of the medical records indicates that Plaintiff consistently and routinely complained of fatigue and joint pain to all of his physicians. The fact that Dr. Stone, as well as Plaintiff's other medical providers such as Dr. Moreland, Dr. Levy, Dr. Grisanti, Dr. Rajarathna, "relied on [his] subjective complaints hardly undermines [their] opinion[s] as to [his] functional limitations, as `[a] patient's report of complaints, or history, is an essential diagnostic tool.'"
Dr. Schnars and other of Defendant's medical consultants also found Plaintiff's symptomatology not credible because his course of treatment was not sufficiently "aggressive." For instance, Dr. Schnars noted that it was recommended on a few occasions that Plaintiff take steroid-sparing agents but none were initiated. Based on the Court's reading of the medical records, it appears that this recommendation was made largely to mitigate Plaintiff's significant adverse effects from prednisone, such as steroid-induced diabetes and mental status changes. While Dr. Schnars asserted that Plaintiff took no medication for chronic pain, notes from nephrologist Dr. Wu indicate that Plaintiff occasionally took Celebrex, a pain medication
Appeals Specialist Enberg, Dr. Schnars and Dr. Paty relied on the fact that Plaintiff continued to work after Dr. Moreland completed the supporting disability papers to show that Plaintiff was not disabled from performing his occupation. Dr. Schnars also cited a Hospital representative's comment that the date of disability was within two weeks of Plaintiff's being terminated from his position. However, the reason given by the Hospital for Plaintiff's termination was that he was not meeting billing expectations or seeing enough patients. This actually tends to corroborate the statements Plaintiff made in 2013 to Dr. Moreland and Dr. Rajarathna that his pain and fatigue were increasing in severity to the point that he was unable to keep up the pace required of him at work, and he therefore planned to seek disability. In his sworn certification, Plaintiff stated that he understood why the Hospital was choosing not to renew his employment contract and that the Hospital had offered him work as an independent contractor; however, he turned it down because he could not manage practicing medicine at a reduced level. The fact that Plaintiff persevered in continuing to work despite his chronic fatigue and pain should not be used against him.
Defendant and its medical consultants also found Plaintiff's limited daily activities to be inconsistent with the degree of pain and fatigue alleged by Plaintiff and with the disability-supporting opinions by Dr. Moreland. Dr. Paty in particular cited Plaintiff's ability to read, use the computer, do occasional household chores, and grocery shop. There is, quite obviously, nothing inherent in these activities that proves Plaintiff has the ability to perform the exertional and cognitive demands of a hospital neurologist, much less to do so eight hours a day, five days a week, or, during the periods when he was "on call," to be able to do them twenty-four hours a day, seven days a week, if necessary. Courts in this Circuit repeatedly have recognized in the SSDI context that a "claimant's participation in the activities of daily living will not rebut his or her subjective statements of pain or impairment unless there is proof that the claimant engaged in those activities for sustained periods of
Having read the entire Administrative Record along with all of the parties' submissions in connection with their respective dispositive motions and the R & R, the Court is convinced of Plaintiff's credibility regarding the debilitating nature of the subjective symptoms caused by his illnesses, in particular his severe fatigue and pain.
The following section constitutes the Court's conclusions of law, pursuant to Fed. R. Civ. P. 52(a)(1). To the extent that any conclusion of law reflects a finding of fact, it shall to that extent be deemed a conclusion of law.
Should either party object to a magistrate judge's report and recommendation, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Second Circuit has clarified that "[e]ven if neither party objects to the magistrate's recommendation, the district court is not bound by the recommendation of the magistrate."
Defendant filed Objections ("Def.'s Obj.") (Docket No. 40) asserting that the R & R (1) improperly admitted evidence outside the administrative record without a showing of good cause by Plaintiff,
On January 5, 2016, rheumatologist Dr. Carette issued a "Reassessment Summary," indicating that Plaintiff had been diagnosed with granulomatosis with polyangiitis ("GPA"), formerly known as Wegener's granulomatosis. The following day, January 6, 2016, at a status conference with Magistrate Judge Foschio, Plaintiff's counsel acknowledged on behalf of his client that no discovery beyond the Administrative Record was necessary. Subsequently, in support of his summary judgment motion, Plaintiff sought admission of Dr. Carette's Reassessment Summary because it was relevant to proving that "he is totally disabled." Docket No. 25-3 at 11. Defendant countered that the Reassessment Summary was not part of the Administrative Record and that Plaintiff had failed to meet his burden of establishing good cause for its admission and consideration. Plaintiff replied that "a new diagnosis is good cause."
The R & R correctly stated that in the Second Circuit "the decision whether to admit additional evidence is one which is discretionary with the district court, but which discretion ought not to be exercised in the absence of good cause."
Moreover, the probative value of extra-record evidence to a claimant's disability status is not the test for determining if "good cause" exists to augment the administrative record. The Court does not find
Likewise,
While Dr. Carette's notes thus suggest that the diagnosis of GPA was retrospective in nature, it is not clear. Also, as Plaintiff argues, the Disability Policy does not require that he have a definitive or certain diagnosis. Thus, it is difficult to describe Dr. Carette's report as "highly probative" on the issue of whether Plaintiff was disabled at the time he applied for benefits. Under
The R & R correctly found that the favorable claims decisions issued by The Hartford and MetLife, from whom Plaintiff had purchased disability policies, were not binding on this Court. R & R at 46 (citing
The Court agrees with Defendant that
It would demand too much of
The R & R noted that Plaintiff presented an argument to the effect that "Defendant's own claims manual requires the SSA's decision to be given `significant
To the extent the R & R asserted that the Disability Policy requires significant weight to be accorded to a decision by the SSA, this is inaccurate: The Disability Policy mentions nothing whatever about decisions by the SSA. However, as Plaintiff counters, the Administrative Record contains evidence, from at least two employees, that the claims manual applicable to deciding claims under the Disability Policy does require significant weight to be given to the SSA's disability decisions.
First, Appeals Specialist Enberg sought input from in-house attorney Nancy M. Smith ("Attorney Smith") regarding the caselaw cited in Plaintiff's appeal letter. In her response, Attorney Smith
PLA-CL-IDI-000929 (emphasis supplied).
On September 11, 2014, Appeals Specialist Enberg informed Attorney Quiat that he was awaiting receipt of the SSDI file. Appeals Specialist Enberg "explained that if the opinion of the rheumatologist supports disability, the SSDI file would not be necessary to complete appeal. However, if the rheumatologist does not support disability we are still required to provided significant weight to SSDI." PLA-CL-IDI-001212 (emphasis supplied). As the R & R notes, Defendant "`admits that the administrative record contains claim notes, which speak for themselves.'" R & R at 44 n. 12 (quoting Defendant's Response Statement of Facts (Docket No. 27-2) ¶ 72; alteration omitted). In light of the foregoing, the Court finds no error in the R & R's analysis of the SSA decision and the weight to be accorded to it under the claims manual applicable to Plaintiff's Disability Policy.
Finally, Defendant's assertion that "the record contains none of the information on which the SSA based its decision," Def.'s Obj. at 10, is incorrect. The Administrative Record contains the entire SSA file, and the SSA's decision indicates which medical records were requested, obtained, and considered.
Because the parties have consented to a bench trial "on the papers" before this Court, the R & R's recommendation that a plenary bench trial is necessary,
Defendant objects that the R & R misconstrued the facts related to the identity of the claims administrator. In particular, the R & R asserted that "[a]ll claims under the Disability Policy are administered by Defendant's corporate parent and agent Unum Group." R & R at 9. Defendant notes that the R & R provided no citation to the record to support this statement. In its Response to Plaintiff's Statement of Material Facts, Defendant denied Plaintiff's assertion that all decisions and all actions were made by Unum Group. Instead,
It is not clear to the Court what practical difference the precise identity of the claims administrator makes to the disposition of this case, since there is no dispute about which standard of review applies.
Plaintiff objects to the R & R's finding that Plaintiff's doctors' opinions conflict with the opinions of Defendant's reviewing medical professionals, thereby creating genuine issues of material fact which preclude summary judgment in Plaintiff's favor. Plaintiff asserts that the opinions from Defendant's medical professionals (1) are not relevant to the issues presented; (2) do not rebut Plaintiff's doctors' opinions; and (3) are based on a lack of objective medical evidence that is not required by the policy.
Defendant responds that the R & R correctly determined Plaintiff was not entitled to judgment as a matter of law because Plaintiff failed to meet his burden of proving his disability under the terms of the Policy, namely, that he was unable, by reason of sickness or injury, to perform each of the material duties of his occupation.
As discussed further below, the Court finds that Plaintiff has established by a preponderance of the evidence that he is entitled to long-term disability benefits under the "Your Occupation" provision of the Disability Policy.
Under
As an initial matter, the Court notes that as the drafter of the Disability Policy, nothing prevented Defendant from inserting a coverage exception for claims of disability based on self-reported or subjective symptoms and limitations. The Disability Policy at issue here has no exception to coverage for such claims, so Defendant has assumed the risk of having to pay claims based on diseases, such as Plaintiff's, that are difficult to diagnose and to quantify.
In describing the type of written proof that is required, the Disability Policy employs the amorphous term "any evidence." By not specifying what type of evidence would be required or how it would be weighed, Defendant left itself a loophole to interpret the Disability Policy to mean that only objective proof is satisfactory to prove a claimant is disabled. Indeed, Defendant's interpretation effectively precludes any claimant who has a sickness or disease that manifests in mainly "subjective" symptoms from being awarded benefits. The Court rejects this interpretation as being contrary to the remedial purpose behind ERISA.
"It has long been the law of this Circuit that `the subjective element of pain is an important factor to be considered in determining disability.'"
Although the district court, on
In the Second Circuit, a plaintiff's subjective complaints, if believed, can be sufficient to establish disability.
However, this is exactly what Defendant did here. Drs. Bress, Schnars, Paty and Bello relied on the lack of "laboratory data" and "objective" clinical findings to find Plaintiff's complaints of fatigue and pain unsubstantiated. Defendant's medical reviewers largely ignored the abnormal bone scans performed in 2006 that were suggestive of a polyarthralgia. And, they have not stated what types of laboratory results they would have expected to see in a person with Plaintiff's disease profile and symptoms. As far as examination findings, they expected to see such things as a fatigued appearance, joint swelling and decreased range of motion, or the inability to get on the examination table. Defendant's consultants have not pointed to any medical authority stating that swelling and decreased range of motion always occurs in cases of polyarthralgia secondary to relapsing polychrondritis. Contrary to Defendant's suggestion, whether a patient "looks" tired is, of course, a wholly subjective judgment. Rheumatologist Dr. Moreland explained that there is no blood test or approved questionnaire that accurately measures fatigue, and most often his patients have normal laboratory results and examinations. Defendant's medical experts' opinions demanded unspecified types of objective proof that, given the nature of Plaintiff's diagnoses and symptoms, is essentially impossible to obtain.
Defendant's medical reviewers' opinions collectively constitute an unfavorable referendum on Plaintiff's credibility, formed without the benefit of examining Plaintiff in person. The Court recognizes that while plan administrators may not arbitrarily reject or refuse to consider the opinions of a treating physician, they "are not obligated to accord special deference to the opinions of treating physicians."
Although Defendant's medical experts unanimously critiqued Dr. Moreland for not assigning sufficiently specific "Restrictions & Limitations," they overlooked the fact that Dr. Moreland did complete a form at Defendant's request in which he gave an opinion as to Plaintiff's exertional limitations. In particular, Dr. Moreland estimated Plaintiff's ability to sit, stand, and walk as "occasional," which Defendant's form defined as 1 to 33 percent of a workday. Defendant's vocational expert, VRC Gaughan, provided an opinion as to the exertional and cognitive requirements of Plaintiff's job as a hospital neurologist, concluding that it was a "light" exertional level job which required standing for around 6 hours a day, well over 33 percent of a workday. Apparently, however, neither Defendant nor its medical reviewers considered this evidence as they did not mention Dr. Moreland's form providing specific physical limitations or VRC Gaughan's vocational assessment.
While Defendant's outside medical consultant Dr. Bello remarked in passing that a hospital-based neurology position is "sedentary to light" in exertion, he is not a vocational expert and he did not analyze Plaintiff's specific position, unlike VRC Gaughan. Consistently with VRC Gaughan, the SSA determined that, according to the DOT, the strength level of Plaintiff's previous position was "light." However, discussion or mention of the SSDI decision was conspicuously absent from the reports issued by Defendant's medical consultants, notwithstanding admissions by Appeals Specialist Enberg and Attorney Smith that the claims manual applicable to deciding Plaintiff's disability claim required "significant weight" be accorded to a decision from the SSA. Defendant's chief justification for discounting the SSA's decision— that no medical expert reviewed Plaintiff's SSDI claim or provided an opinion—is unpersuasive, given that Defendant's consultants did not directly address whether Plaintiff is unable to perform the material and substantial duties of his occupation but instead attacked on his credibility. It further demonstrates that the opinions of Defendant's medical reviewers hardly constitute "compelling evidence" for ignoring the SSA's decision.
In sum, the Court finds that Plaintiff has established by a preponderance of the evidence that he is unable, due to sickness or disease, to perform the material and substantial duties of his occupation as a hospital neurologist, and he therefore is
The R & R correctly found that Plaintiff's failure to exhaust administrative remedies with regard to the "Any Occupation" claim is not a jurisdictional defect in the ERISA context but is an affirmative defense. The R & R found that Defendant had waived the affirmative defense, and that Plaintiff likewise had waived the opportunity to raise the argument of Defendant's waiver. R & R at 55. In light of the "federal policy favoring exhaustion" in ERISA cases, and absent a "clear and positive showing" that remand would be "futile," the R & R recommended dismissing the "Any Occupation" claim without prejudice.
The Court notes that when reviewing under the arbitrary and capricious standard, the Second Circuit has directed that an unexhausted claim be remanded "unless no new evidence could produce a reasonable conclusion permitting denial of the claim or remand would otherwise be a `useless formality.'"
At the time of Defendant's final adverse decision in 2004, the record in this case spanned 8 years and included a finding of disability by the SSA that is basically equivalent to a finding of disability under the "Any Occupation" standard. No reasonable argument can be made that record is incomplete. It is true that Defendant could obtain "new" evidence in the form of an in-person independent medical examination or functional capacity evaluation of Plaintiff. However, Defendant had more than ample time and opportunity to order such examinations, yet deliberately declined to do so.
After reviewing the entire Administrative Record, the Court finds that no new evidence could produce a reasonable conclusion permitting a non-arbitrary denial of Plaintiff's claim under the "Any Occupation" standard. Remand would, in this case, be a useless formality. The Court further finds that the Administrative Record establishes, by a preponderance of the evidence, that Plaintiff is unable, due to sickness or disease, to perform the material and substantial duties of any occupation and, as such, is disabled under the "Any Occupation" provision.
The Court concludes that, based on the Administrative Record, Plaintiff has established by a preponderance of the evidence that he is entitled to long-term disability benefits under the "Your Occupation" provision in the Disability Policy, and that Defendant erred in denying Plaintiff's claim under that provision. Plaintiff accordingly is entitled to the payment of benefits under the "Your Occupation" provision as stated in the Disability Policy.
In addition, the Court declines to remand the matter to Defendant for consideration, in the first instance, of Plaintiff's claim under the "Any Occupation" provision. The Court has found that, based on the Administrative Record, Plaintiff has established by a preponderance of the evidence that he is entitled to benefits under the "Any Occupation" provision. Plaintiff accordingly is entitled to the payment of benefits under the "Any Occupation" provision as stated in the Disability Policy.
While the Court expects the parties to make every reasonable effort to resolve all remaining issues through the joint submission of a proposed judgment, if the parties, after a good faith effort to do so, cannot agree on the wording of a proposed judgment, the parties each may separately submit a proposed form of judgment, accompanied by a memorandum of points and authorities that sets forth the party's positions regarding the amount of benefits, the amount of attorney's fees, and the amount of pre-judgment interest.
For the foregoing reasons, it is hereby
