Edward Richards v. Hewitt Associates, et al

Filing 920100119

Opinion

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var WPFootnote1 = 'Employee Retirement Income Security Act of 1974, 29 U.S.C.§ \
1001 et seq.\
'

var WPFootnote2 = 'There were several named defendants, including Richards\'\
former employer and an individual employee of Prudential. The\
individual defendant is no longer a party. We refer to the\
remaining defendants/appellees collectively as "Prudential," both\
for convenience and because the insurer is the real party in\
interest in this litigation.\
'

var WPFootnote3 = 'Digital was subsequently acquired by appellee Hewlett-Packard.\
'

var WPFootnote4 = '"Synovitis" is inflammation of fluid membranes in certain of\
the body\'s joint cavities and tendon sheaths. Stedman\'s Medical\
Dictionary 1773 (27th ed. 2000).\
'

var WPFootnote5 = 'Dr. Day also referred to a note from a Dr. O\'Leary, which\
strongly opposed Richards\' claim of disability. However, Dr. Day\
incorrectly referred to O\'Leary\'s note as being dated April 2001,\
when the record reflects an actual date of April 1991. While this\
discrepancy might weaken somewhat the foundation of Dr. Day\'s\
opinion, it does not significantly undercut it. We address later \
the relevance of Dr. O\'Leary\'s report within the overall context of\
the administrative record.\
'

var WPFootnote6 = 'The record also reflects that communication between Richards\
and Prudential had become further strained; phone logs contain\
notations of accusations by Richards during frequent phone calls,\
to which Prudential responded by communicating with him only in\
writing.\
'

var WPFootnote7 = 'The letter from Dr. Hryniewich was the only new medical\
evidence submitted to Prudential. Several other letters were\
little more than attacks on Prudential and its medical reviewers,\
or efforts "to make Prudential aware" of damage awards against\
other insurance companies, seemingly as a warning.\
'

var WPFootnote8 = 'The district court also denied Richards\' motion to supplement\
the record with an affidavit in which he described his condition. \
As Richards contested this decision only in his reply brief, it is\
waived. See Cunningham v. Nat\'l City Bank, 588 F.3d 49, 54 n.6\
(1st Cir. 2009) (arguments not raised in appellant\'s opening brief\
are waived).\
'

var WPFootnote9 = 'By contrast, treating physicians\' opinions are ordinarily\
accorded deference in Social Security disability proceedings. See\
Morales-Alejandro, 486 F.3d at 700 n.7 (citing 20 C.F.R. § \
404.1527(d)(2)). That deference does not extend, however, to a\
physician\'s opinion -- such as the one offered by Dr. Hryniewich –\
that a claimant is unable to work, as such an opinion is not a\
medical one. Id.\
'

var WPFootnote10 = 'The district court made a similar pronouncement.\
'

var WPFootnote11 = 'We also note that the Social Security award was made in 1992,\
while Prudential\'s termination occurred nine years later. Although\
Richards points out that only Prudential terminated his benefits,\
he does not specify whether, or to what extent, his Social Security\
claim was reviewed in the years following the 1992 decision.\
'

var WPFootnote12 = 'Under the section captioned "Claim Rules," the Plan provides\
that "Prudential, at its own expense, has the right to examine the\
person whose loss is the basis of the claim. Prudential may do\
this when and as often as is reasonable while the claim is\
pending."\
'

var WPFootnote13 = 'Richards invokes the doctrine of contra proferentem,\
according to which ambiguous policy terms must be strictly\
construed against the drafter during de novo review. See Stamp v.\
Metropolitan Life Ins. Co., 531 F.3d 84, 93 (1st Cir.), cert.\
denied, 129 S. Ct. 636 (2008); Balestracci v. NSTAR Elec. and Gas\
Corp., 449 F.3d 224, 231 n.2 (1st Cir. 2006). Here, however, we\
find no ambiguity in the policy provision giving Prudential the\
right to have Richards examined, such that it should be read as a\
requirement.\
'

var WPFootnote14 = 'As previously noted, Dr. Hryniewich\'s definitive statements\
regarding Richards\' incapacity came several years after the initial\
denial and were arguably inconsistent with his pre-termination\
opinions regarding Richards\' employment prospects, which he at\
least twice described as "unknown." \
'

var WPFootnote15 = 'There are, in fact, references to depression in the record\
dating back to the early 1990s. In Dr. Brachman\'s opinion,\
depression can lead to a magnification or exaggeration of\
fibromyalgia symptoms. While Richards disputes this conclusion,\
his brief contains no refutation to the articles upon which Dr.\
Brachman relied in her report.\
'

var WPFootnote16 = 'One possible basis for Richards\' view is that the letter to\
him from Prudential lists certain records as "included" among those\
sent to Dr. Brachman, while Brachman\'s report contains a much\
larger list of records she actually reviewed.\
'

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