Neal v. Hartford Life Group Insurance Company

Filing 18

MEMORANDUM OPINION AND ORDER denying 11 plaintiff's Motion for Summary Judgment, and further that Hartford Life and Accident Ins Company's Response to Jannette Neal's motion for summary judgment and cross-motion for judgment on ERISA Administrative Record 14 is granted, and each party will bear its own costs and attorney's fees. This case is hereby dismissed. ***Civil Case Terminated. Signed by Honorable Jimm Larry Hendren on March 2, 2011. (sh)

Neal v. Hartford Life Group Insurance Company

Doc. 18

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION JANNETTE NEAL v. HARTFORD LIFE GROUP INSURANCE COMPANY MEMORANDUM OPINION AND ORDER Now on this consideration 2nd day of March, 2011, this cause comes on for and the Court, being well and Case No. 10-3010 DEFENDANT PLAINTIFF

and

decision

sufficiently advised, finds and orders as follows: 1. Plaintiff brings this action pursuant to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., challenging the decision to deny her longterm disability benefits. The parties have submitted a stipulated administrative record (the "AR") (Doc. 10) for the Court's review. 2. Currently before the Court is the plaintiff's Motion for

Summary Judgment (Doc. 11), which will be treated as a motion for entry of judgment, and Hartford Life and Accident Insurance

Company's Response to Jannette Neal's Motion for Summary Judgment and Cross-Motion for Judgment on ERISA Administrative Record (doc. 14). Both motions have been fully briefed and they are ripe for

determination.

1

Dockets.Justia.com

3.

Background

-- The Court notes the following information

as background for its analysis of plaintiff's claim: (a) Plaintiff worked for Baxter Healthcare Corporation

("Baxter") for over 32 years, beginning in 1974. (b) By 2006, plaintiff was employed as an Operator, an The position required her to stand, walk,

assembly-line position.

bend, squat, kneel, use both hands, and lift up to 50 pounds or greater, all on a constant basis. (c) Plaintiff participated in an employee benefits plan. The

group disability plan was funded by a group policy (the "policy"), policy number SR-83079247, issued by Hartford Life and Accident Insurance Company (the predecessor to the defendant, Hartford Life Group Insurance Company) to the policy holder, Baxter

International, Inc. (d) Plaintiff stopped work on September 6, 2006. She applied

for and received short term disability benefits from September 8, 2006 until March 22, 2007. (e) In February of 2007, the plaintiff notified Hartford that

she was approved for Social Security Disability. Hartford adjusted the amount of plaintiff's benefits under the policy to reflect the amount she was receiving for Social Security Disability. (f) Plaintiff applied for and received long-term disability

benefits from March 23, 2007 until May 16, 2008. Hartford approved

2

plaintiff's

long-term

disability

benefits

under

the

"own

occupation" standard. (g) At the time her long-term disability benefits began,

Hartford explained to the plaintiff that if she wished to receive benefits beyond March 23, 2008 (a 12-month period), she would have to be disabled under the Policy's "any occupation" standard. (h) In March of 2008, Hartford wrote to the plaintiff and

reminded her that to receive benefits beyond March 23, 2008, she would need to qualify under the policy's "any occupation" standard. Hartford further advised the plaintiff that it was still

investigating whether she was disabled under the "any occupation" standard and that the payment of "benefits beyond 3/22/2008 should not be construed as an admission of continued liability." (i) Hartford wrote to the plaintiff and advised her that her Hartford denied

benefits would terminate effective May 16, 2008.

further benefits based on the "any occupation" definition of disability, explaining that it concluded that plaintiff was "not disabled from performing the material and substantial duties of any occupation for which [she was] qualified by education, training, or experience." (j) The terms of the policy define disability as follows:

Disability or Disabled means that You satisfy the Occupation Qualifier or the Earnings Qualifier as defined below. Occupation Qualifier

3

Disability means that during the Elimination Period and the following 12 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and 2) not Gainfully Employed. After the LTD Monthly Benefit has been payable for 12 months, Disability means that Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: 1) continuously unable to engage in any occupation for which You are or become qualified by education, training or experience; and 2) not Gainfully Employed. . . . (k) The policy gives Hartford "sole discretionary authority

. . . to determine . . . eligibility for benefits and to interpret the terms and provisions of the Policy." 4. Evidence in Administrative Record -- The evidence included in the administrative record reflects the following: * The plaintiff submitted her claim for long term

disability benefits in February of 2007. * Statement Dr. Richard Burnett completed an Attending Physician's of Continuing Disability, reporting diagnoses of

degenerative disc disease, spinal stenosis, and foraminal stenosis. Dr. Burnett noted that the plaintiff had been treated with epidural steroid injections and stated that the plaintiff was unable to stand, walk, sit, lift, carry, reach, push, pull, drive, or use a keyboard. Dr. Burnett further stated that he believed the

plaintiff's limitations would last a "lifetime."

4

*

In March of 2007, Hartford approved the plaintiff's long-

term disability benefits under the "own occupation" standard. * Hartford advised plaintiff that her benefits would begin

effective March 23, 2007, and would continue for a period of 12 months. Hartford further advised plaintiff that if she wished to

receive benefits beyond March 23, 2008, she would have to be disabled under the Policy's "any occupation" standard. * The plaintiff returned to Dr. Burnett in April of 2007, Dr. Burnett prescribed Darvocet and

complaining of neck pain. physical therapy. *

In June of 2007, Dr. Burnett advised Hartford that the Dr.

plaintiff was "not capable of performing full time work."

Burnett noted that plaintiff's condition was stable and that she was undergoing conservative treatment. * In June of 2007, plaintiff identified her medications as She described

Flexeril, Nexium, Evista, Singulair, and Lorazepam.

her pain as constant and reported that she had quit physical therapy because "it was increasing the pain." Plaintiff opined

that she would never return to work, even in a sedentary position. * Plaintiff visited Dr. Burnett in July of 2007,

complaining of "back and neck pain." for August of 2007. * The MRI, performed on

Dr. Burnett scheduled an MRI

August

9,

2007,

noted

the

plaintiff's cervical spine "aligned essentially straight" with "no

5

apparent fracture, subluxation, or destructive lesion." "The C2-C3 and C3-C4 levels are relatively unremarkable . . . with mild posterior disc bulging with some spurring at C4-C5 with mild spinal stenosis." At C5-C6 , the MRI noted "a concentric disc bulge with

some end plate spurring resulting in moderate spinal stenosis." At C6-C7, the MRI noted "a concentric disc bulge, a little more prominent to the left with moderate spinal stenosis." "At C7-T1,

there is a broad-based posterior disc bulge, asymmetric to the right . . . [causing] an impression on the thecal sac with mild spinal stenosis" that appeared "fairly stable." The MRI noted "no

definite acute disc herniation . . . [and] no significant foraminal stenosis." The "The cervical spinal cord is otherwise unremarkable." physician identified "[n]o significant change

reviewing

compared to the December 2006 MRI." Further, the lumbar spine also had "[n]o significant abnormality." * Plaintiff returned to Dr. Burnett on August 17, 2007, to Plaintiff also complained of

follow up on her back and neck pain. bowel and bladder problems.

Dr. Burnett noted a history of

gastroesophageal reflux disease. Plaintiff underwent a stool test, which proved negative for pathogens. * Plaintiff saw a physician's assistant at Ozark

Neurosurgical Associates in September of 2007. Plaintiff complained of back and neck pain, and noted a history of cholelithiasis (gallstones), GERD, renal stones, osteoporosis, and seasonal

6

allergies.

Plaintiff stated that her neck pain had "progressively

worsened" and that it extended into her shoulders bilaterally and into the inner aspect of the arms to the thumbs bilaterally." She

stated that physical therapy did not help but that the two steroid injections had helped. "normal alignment An x-ray of the plaintiff's back showed a of the vertebral bodies with no

spondlylolisthesis," "[m]ild dis[c] height loss" "at C6-7 with endplate spurs," and "[m]ild endplate spurs" "at C5-6 and C7-T1." The reviewing physician's impressions included "degenerative disk disease at C6-7" and "no cervical motion abnormality." * In October of 2007, plaintiff returned to Dr. Burnett, Plaintiff

complaining of frequent diarrhea and abdominal pain.

underwent another stool test, which was "negative for clostridium difficile toxin A and/or B." * Plaintiff returned to Dr. Burnett in late October of 2007 Both times plaintiff noted that her

and on November 9, 2007.

diarrhea continued but had decreased and that she continued to have neck pain. * In October of 2007, plaintiff completed Hartford's

Claimant Questionnaire.

Plaintiff stated that she was unable to

lift over 10 pounds and that her neck pain keeps her from doing many things she would like to do during the day. Plaintiff stated

that she had to rest during the day because she could not sleep well at night from pain. She reported that she had "more problems

7

with bowels."

As a typical day, plaintiff stated: "Get up when

able sometimes its 9 or 10 a.m., then I will have to lay down again during the day. See doctors, pain med. & muscle relaxer, stay She stated that she would "try to go to

home, most of time." church."

She also stated that she did not "always make it to the She stated that she needed

bathroom with bladder & bowel."

assistance to bathe, dress, and use the toilet but acknowledged that she could feed herself and transfer from bed to chair without assistance. * Plaintiff also submitted Hartford's Attending Physician's Dr. Burnett

Statement of Functionality completed by Dr. Burnett.

noted diagnoses of degenerative disc disease and stenosis and reported that plaintiff complained of pain, tenderness, and a decrease in her range of motion. Dr. Burnett said that plaintiff

was unable to lift anything, drive, bend, or reach and that these restrictions would last for her "lifetime." * Crystal Vernon, an examiner for Hartford, conducted a Ms. Vernon noted that Plaintiff

telephone interview of the plaintiff.

plaintiff was not being treated with a Pain Specialist.

told Ms. Vernon that she was "in the process of finding a[n] OBGYN" for her bladder and bowel problems. Plaintiff confirmed that

she was not "being seen by an orthopedic" physician and that she did not return to Ozarks Neurosurgical Associates after the

8

September 2007 x-ray.

Plaintiff acknowledged that she could lift

some things, like "a bag of sugar." * In November of 2007, Hartford requested that Dr. Burnett

complete a questionnaire concerning the plaintiff's condition. Dr. Burnett noted that the plaintiff is capable of "No work"; and stated that she has "cervical stenosis and degenerative disc disease". Dr. Burnett described plaintiff's condition as

"worsening" and noted the current treatment plan as "epidural steroids" and that plaintiff was "still considering surgery." * Hartford referred plaintiff's file to Hartford's Special The Special video

Investigation Unit to conduct video surveillance. Investigation surveillance. * 2007. Unit hired a third party to

conduct

Hartford conducted video surveillance in December of Over the course of two consecutive days in December 2007,

the video surveillance showed plaintiff away from her house for over eight hours combined. During plaintiff's time away from home, the video surveillance shows that she stood, walked on level and sloped surfaces, drove, carried a purse, shopped, bent, reached, climbed stairs, and dined in a restaurant. * On the first day of video surveillance, plaintiff was "She drove

observed entering/exiting and driving a motor vehicle. to an unknown building in Viola, AR.

She then drove to the fire She drove to a

department in Viola and then to her residence.

9

service station where she put fuel into her vehicle.

She drove to

Dollar General in Ash Flat, AR and to Wal-Mart in Ash Flat, AR. She was observed and filmed inside of Wal-Mart looking at TV's. . . . She drove to a private residence believed to be her daughters before driving in the direction of her residence. On this date,

[plaintiff] was away from her residence for approximately 5 hours." * On the second day of surveillance, plaintiff was observed

away from her residence for approximately 3.75 hours. Plaintiff "rode as a passenger to a church and restaurant. She was observed

and filmed entering/exiting and riding in a motor vehicle. She was observed and filmed walking, climbing stairs and opening a door." * In January of 2008, plaintiff saw Dr. Erik Schultz, an Dr.

OB-GYN and complained of symptoms of "stress incontinence."

Schultz notes that plaintiff "has had two anterior and posterior repairs." Dr. Schultz lists Fosamax, Levaquin, Nexium, Premarin,

and Singulair as the plaintiff's medications. * Plaintiff returned to Dr. Schultz on February 6, 2008.

She presented for a follow up of her annual exam and the report states that she wished to discuss hormone therapy. Dr. Schultz

ordered a postmenopausal hormone panel and then prescribed hormone therapy. Dr. Schultz also noted that plaintiff's bone-density test was positive for osteoporosis. * Plaintiff saw Mr. MacKercher in February of 2008. She

presented with complaints of abdominal pain.

Dr. MacKercher

10

ordered a CT scan of the plaintiff's abdomen and pelvis. results were "unremarkable." *

The

Plaintiff returned to Dr. Burnett in late February of

2008. Plaintiff requested that Dr. Burnett switch her from Vicodin to a different pain medicine because she thought the Vicodin was "harsh on [her] stomach" and made her a "zombie." prescribed Ultram. * In March of 2008, plaintiff saw Dr. MacKercher's partner, Plaintiff Dr. Dr. Burnett

Dr. Bodunrin Badejo, complaining of epigastric pain.

reported that her reflux symptoms were "improved by Nexium."

Badejo noted that the plaintiff had "gained 30 lbs to 40 lbs in the past one year." continue He prescribed Nexium, Prevalite, and recommended that

plaintiff

taking

"reassured

[plaintiff]

regarding the chronicity of the pain and the lack of significant findings on recent imaging studies." Dr. Badejo stated "It is

unlikely that the patient's symptoms are due to any significant intra-abdominal pathology." * In a letter dated March 21, 2008, Hartford wrote to

plaintiff and reminded her that to receive long term disability benefits beyond March 23, 2008, she would need to qualify under the policy's "Definition of Disability." Hartford also stated that it

would continue to evaluate plaintiff's claim and that any long term disability benefits it paid beyond March 22, 2008 should not be construed as an admission of continued liability.

11

*

On March 26, 2008, plaintiff and her husband met with an

investigator for Hartford, Mr. Fitzgerald, in their home. Plaintiff was shown the surveillance video which had been taken of the plaintiff. ** During the interview, the investigator observed: "that the [plaintiff] got up and down in one fluid motion, several process. from time a seated to a standing 3 hour position interview

throughout

the

She stood up slowly and the [plaintiff's]

only indication of experiencing some level of pain or discomfort her was the [plaintiff] and frequently alternating

changing

sitting

position

between siting, standing and walking around the room." ** "During the interview, the [plaintiff] appeared to have good use of her hands and fingers. The

[plaintiff] was able to shake hands, hold assorted paperwork/claims documents, use and write with a pen . . . ." ** "The [plaintiff] was alert, very cooperative, and able to articulate her answers to all of the

questions and [the investigator] did not observe any type of cognitive difficulties or concentration type problems. . . ."

12

**

"The [plaintiff] stood up and excused herself twice during the interview to go to the bathroom. did so with no sense of urgency." She

*

Plaintiff acknowledged that the surveillance video was

accurate in that its "documented activities represent[ed] [her] level of functionality on one of [her] very good days [when she] was wanting out of the house." * During the interview, plaintiff signed a statement In

reflecting the information she provided to the investigator. the statement, plaintiff claimed: **

"The disabling medical condition that prevents me form returning to work are/is Bladder and Bowel . . . Problems and Degenerative Disc Disease in the cervical area."

**

"My symptoms for Bladder and Bowel problems include uncontrollable and frequent urgencies to urinate and to have a bowel movement. I must wear a pad.

I had to get up three times last night to go to the bathroom. . . . I have a constant stabbing pain in my stomach." ** "My symptoms for Degenerative Disc Disease in the cervical are that I suffer from headache all the time. [sic] They may be caused partially by my sinuses. The everyday headaches last for hours

13

until I take medications and lay down.

I have a

big ball of fire pain in my neck, down my shoulders and also into my head region. I have dull pain in

my legs but I have worse jerking in my left legs. When my leg goes to jerking like (a restless leg syndrome pain) the pain is sharper. The pain is

worse when I sit for long periods (over 30 minutes) of times." ** The specific duties that I am no longer able to do at any occupation are I can not pull heavy (30-40 pounds) equipment. I can not sit for long periods

of time and definitely can not move my neck and head and look at the belts and machinery. The

lifting restrictions of 10 pounds limited what I could do." ** "I have one or two days a week that I can function without rely [sic] on others. I can go to the I prepare

doctors or shopping on these days.

myself by resting and medications on those days that I have to go out." ** "I do wear pads daily because of my incontinence. I have difficulties getting to the bathroom about every 2-3 days. I also suffer from leakage daily."

14

**

"I will use a pain scale of Zero (0) to Ten (10) to describe the level of my pain . . . My normal average daily pain level is a 7 in my neck,

shoulders, legs and stomach.

I have a constant

stabbing pain in my stomach if I were to perform any activities." ** "I am able to walk a maximum of 100 yards on uneven ground. inside. far. I can walk more easily on level ground or It takes me 10-15 minutes to walk that I do walk When I

My gait can be described as slow.

with a limp about 25 percent of the time.

have walked 15 minutes, I then have to sit down and rest because of my neck, arm and leg pain. The

pain in my arm is now located more in my right side. My pain level increase [sic] from a 6-7 to 9 I am able to

when I have walked that far/long.

walk enough to take care of my daily activities, such as running errands and going to appointments once a week." ** "I am able to stand for a maximum of 10-20 minutes. When I stand for 20 minutes, I then have to move because of my neck, arm and leg pain. I experience

a pain level of 8-9 when I stand that long."

15

**

"I am able to lift and carry items that weigh a maximum of 10 pounds. I am only able to lift and

carry that amount of weight because this is my restrictions of my bladder and bowel and I get a pulling in my neck. An example of something that I

can carry without being uncomfortable is a gallon of milk. If I tried to lift and carry more than

that I would experience a pain level of 9 in my stomach and neck area." ** "I am able to bend or flex forward to touch the floor for short periods of time. When I bend or

flex forward to the floor, I experience a pain level of 8 in my neck arms, head and arms." ** "I am able to twist at the waist . . . to the right some . . . to the left some. I am able to twist or

turn my head to the left slightly . . . to the right slightly. If I twisted at my waist I would

experience a pain level of 9 due to the pulling in my bladder and stomach area. I would experience a I

pain level of 9 in my neck when I twist my neck. use the rear view mirror when I drive." **

"I am able to squat to sit in a chair, on a toilet, or to the floor. If I squatted I would experience

a pain level of 9-10 in my neck, legs, stomach and

16

arms.

To get back up from a squatted position, I

would need assistance from someone or have to hold onto something." ** "I am able to kneel. If I knelt down, I would

experience a pain level of 8-10 in my neck, legs, stomach and arms. To get back up from a kneeling

position, I would need assistance from someone or have to hold onto something." ** "I am able to push and pull something that offers light resistance. An example of something that I

can push or pull is a shopping cart ½ full, a vacuum sometimes, sweep, or a chair from under a table. . . . The act of pushing and/or pulling increases my pain level to a 9 in my neck, stomach, legs and arms." ** Plaintiff noted that she could climb 4-5 steps. She also stated that she had an inability to keep her balance because of blurred vision. ** Plaintiff reported that she had full use of her hands and that she could "open a jar or a bottle," button, use a zipper, and use keys to unlock a door. ** Plaintiff stated she is able to write; but not type "because I can not hold my hand to type."

17

**

Plaintiff stated that her hearing is not very good; and, that she slurred her words when she got tense.

**

Plaintiff

stated

that

she

is

not

able

to

concentrate because of increased head ache pain affecting things such as spelling and name

recollection. ** Plaintiff claimed that she had beginner computer skills. ** Plaintiff claimed that she could drive about 40 minutes ­ with driving being limited by pain in her neck, stomach, arms and legs. able to pump her own gas. ** Plaintiff reported being able to shop "at a grocery store, mall, or large store such as Wal-Mart" for a maximum of 1 ½ hours. The plaintiff also reported The plaintiff is

being able to attend a 2 hour church service. ** When asked to describe a typical day, plaintiff reported that she would "get up around 7:00AM and I dress, bathe and clean up. I will eat breakfast or I come back home and My

we will out go for breakfast. rest.

I will make my bed on my good days.

husband will help me.

I piddle around the home and I try to

I will run a dust rag for 10 minutes.

18

keep my self busy but I have to take frequent rest breaks. ** I will unload the dishwasher."

Continuing on her typical day, "In the afternoon I eat a sandwich or soup. fix for supper. yesterday. I try to find something to

I cooked a roast in the crock pot

I try to keep busy talking on the phone I haven an ear piece that

to other church members. I use. **

I may watch some TV." I clean up after

"In the evening I eat dinner. dinner with my husband. TV until bed time.

I try to relax and watch

I may fall asleep in my chair.

I typically go to bed around 10:00 PM and fall asleep around 11:00 - 12:00. Benadryl to fall asleep." * Hartford wrote to Dr. Burnett, Dr. MacKercher, and Dr. the investigation of plaintiff's functional I may have to take a

Schultz regarding capabilities.

Dr. Schultz and Dr. MacKercher responded that they Dr. Burnett did not respond.

would defer to Dr. Burnett. *

Hartford referred the claim file to Medical Advisory

Group LLC for an independent records review and requested that Medical Advisory Group attempt to interview Dr. Burnett. Medical

Advisory Group assigned Dr. T. James Hallee, who is board-certified in internal medicine and nephrology, to conduct the review.

19

*

Dr. Hallee watched the surveillance video and reviewed

the investigator's report. Dr. Hallee noted that the plaintiff has cervical disc disease with radicular symptoms into her arms, "but not of a degree that has led to any suggestion for surgery." He

further noted that "[h]er symptoms are present, but not severe enough that she takes any pain medication on a chronic basis. has basically learned to live with the problem and She

avoiding

activities that exacerbate her neck pain."

Dr. Hallee also noted

that plaintiff's chronic gastrointestinal complaints, functional bowel problems, and urinary stress incontinence. * Dr. Hallee noted that the "video surveillance shows a

quite active woman who is able to do numerous activities of daily living easily and without any need for support. She independently

is able to drive her car, climb up and down stairs, and open doors without any difficulty." * Dr. Hallee interviewed Dr. Burnett who acknowledged that

plaintiff "could likely do [sic] work that did not involve walking and standing all day . . . ." Dr. Hallee reported that Dr. Burnett

considers the plaintiff "disabled from her job that she used to have, but had not thought about her pursuing other work that would fit her limitations." Reportedly, Dr. Burnett "had no objections

to her pursuing other employment within her limitations." * Dr. Hallee concluded "based on the medical evidence

presented for review, the video surveillance and conversation with

20

Dr. Richard Burnett, that [plaintiff] retains the ability to do full-time work" with certain restrictions. Dr. Hallee stated that plaintiff "should avoid activities that cause her to look up . . . repeatedly on a frequent basis. She should avoid prolonged periods of walking and standing. Due to her stress urinary incontinence,

she should be allowed access to bathroom facilities on a regular basis." Dr. Hallee noted that "[t]here is no limitation of the use of her fingers, hands and arms." * In May of 2008, Susan Marquis, a rehabilitation clinical

case manager for Hartford, completed an Employability Analysis Report. The report identified three occupations plaintiff could

perform that were "prevalent in the state economy for Arkansas": Bite-Block Maker, Eyeglass Frames Inspector, and Plate Gauger. * In a letter dated May 16, 2008, Hartford notified the

plaintiff that it was denying further long-term disability benefits because it had concluded that she was not disabled under the "any occupation" standard -­ finding she was "not disabled from

performing the material and substantial duties of any occupation for which [she was] qualified by education, training, or

experience." * decision. Plaintiff retained an attorney and appealed Hartford's In October of 2008, the attorney, Lane Strother,

provided new medical records and a letter from Dr. Burnett that stated that plaintiff would "remain totally disabled from any occupation for her lifetime." 21

*

The new medical records provided by Mr. Strother include: ** Medical records evidencing the plaintiff's

treatment by Dr. Brad Thomas, a neurologist, in August of 2008. Then, plaintiff complained of

increasing neck and back pain and numbness and weakness in her left leg. After reviewing the

prior MRI's, Dr. Thomas concluded that plaintiff had "some degenerative changes that would be

consistent with arthritis but no significant disc herniations impingement, impingement." that [were] causing impingement any or canal cord

foraminal

Dr. Thomas commented that "the main

issue [was] degenerative in nature with arthritis medications [and] treatment with epidural steroid injections." Dr. Thomas stated that plaintiff was

"a reasonable candidate for long-term disability." ** Medical records evidencing that plaintiff had

undergone a "coronary artery bypass grafting [times two]" due to unstable angina and congestive heart failure. * Hartford's appeals unit referred the plaintiff's file to

MES Solutions for a second medical review. Hartford requested that MES Solutions interview Dr. Thomas and Dr. Burnett. assigned Dr. Deepak Awasthi, who is a MES Solutions in

board-certified

neurological surgery, and Dr. Mark Friedman, who is board-certified 22

in internal medicine and holds a speciality in cardiovascular disease, to conduct the review. * After watching the video surveillance, Dr. Awasthi noted

that the videos showed the plaintiff's ability "to perform the routine activities of daily life without difficulty." * After watching the video surveillance, Dr. Friedman noted

that plaintiff was seen engaging in various activities "without difficulty" and demonstrated that she could "do most activity without orthopedic or neurologic limitations." * Dr. Awasthi contacted Dr. Thomas. Dr. Thomas told Dr.

Awasthi that plaintiff's neck pain was "getting worse" and was caused by "degenerative disc disease." Dr. Thomas opined that the

plaintiff was disabled as a result of pain. Dr. Thomas stated that if plaintiff "could get over her pain; she could be a functional person." * Dr. Friedman contacted Dr. Burnett. Dr. Burnett stated

that the plaintiff "had recovered well from her [heart] surgery." While Dr. Burnett believed that the plaintiff "was functionally impaired, from a cardiac perspective, from the time of surgery on 10/17/2008 until her full recovery in mid-December 2008," "Dr. Burnett indicated that [the plaintiff] did not have any ongoing active cardiac abnormality and that her history of mitral valve prolapse and GERD was not causing acute problems." "Dr. Burnett

stated that [the plaintiff's] ongoing limitations and restrictions were related to her history of neck and back pain from her 23

degenerative joint disease."

Dr. Burnett opined that he did not

believe that plaintiff could "return to a work environment in any capacity due to her degenerative joint disease." * Dr. Awasthi and Dr. Friedman provided a joint report.

Dr. Awasthi concluded that plaintiff was "mildly impaired due to her degenerative disc disease and cardiac history." Dr. Awasthi

noted that Dr. Thomas could not point to any physical finding that was leading to [the plaintiff's] disability; he felt that the pain was the limiting factor." Dr. Awasthi concluded that the

plaintiff's "work capacity would be a light category with lifting up to 20 pounds occasionally; occasional bending and twisting and climbing; [and] sitting/standing/walking up to 2 hours at a time with short breaks in an 8 hour day." Dr. Awasthi also noted that

plaintiff could drive and could occasionally reach above the shoulder, squat, crouch, and kneel. Dr. Awasthi stated that "[t]he light level is due to [the plaintiff's] degenerative disc disease, cardiac history and persistent pain." * Dr. Friedman found that "[f]rom 5/16/08 until October

2008, [the plaintiff] did not have any cardiac or internal-medicine issues that would have resulted in functional impairment." While

Dr. Friedman noted that plaintiff could not have worked from October 2008 until December 2008 because of her cardiac surgery, he found that "[f]ollowing her recovery from CABG surgery, from a cardiac and internal medicine perspective, [the plaintiff] would be

24

capable of working full-time in up to a light capacity."

Dr.

Friedman found that plaintiff should not lift over 20 pounds but that she would sit, stand, walk, and engage in fine motor activity without any restrictions. * In a letter dated January 12, 2009, Hartford notified

plaintiff's attorney that Hartford's appeal unit affirmed the plaintiff's termination of benefits. According to the letter,

Hartford upheld termination of benefits after they "independently and thoroughly reviewed the policy provisions and the medical evidence . . . ." * On January 11, 2010, plaintiff filed this lawsuit. Discussion 5. Standard of Review -- ERISA provides a plan beneficiary

with the right to judicial review of a benefits determination. See 29 U.S.C. § 1132(a)(1)(B). A denial of benefits by a plan

administrator must be reviewed de novo unless the benefit plan gives the administrator discretionary authority to determine

eligibility for benefits or to construe the terms of the plan, in which case the administrator's decision is reviewed for an abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). Here, the policy gives Hartford "sole discretionary authority . . . to determine . . . eligibility for benefits and to interpret

25

the terms and provisions of the Policy."

However, the plaintiff

argues that a conflict of interest created because Hartford both determines whether an employee is eligible for benefits and pays benefits out of its own pocket affects the standard of review in the instant case. The Supreme Court has clearly identified such a conflict of interest; however, in Metropolitan Life Ins. Co. V. Glenn, "the Supreme Court clarified that the existence of a conflict of

interest is `one factor among many that a reviewing judge must take into account' when determining whether a plan administrator has abused its discretion in denying benefits." Khoury v. Group Health Plan, Inc., 615 F.3d 946, 953 (8th Cir. 2010)(citing Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2351 (U.S. 2008)). The

Court, in Glenn, found that the conflict of interest should be weighed more heavily "where circumstances suggest a higher

likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration." Accordingly, Hartford's decision will be reviewed for an abuse of discretion, with the "conflict of interest" being weighed as a "factor in determining whether there is an abuse of discretion." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Under the abuse-of-discretion standard, the Court must

determine whether a reasonable person could have reached the same

26

decision.

See House v. Paul Revere Life Ins. Co., 241 F.3d 1045, This inquiry focuses on the presence or

1048 (8th Cir. 2001).

absence of substantial evidence supporting the administrator's decision. Id. While the administrator's decision need not be

supported by a preponderance of the evidence, there must be "`more than a scintilla.'" Id. (citations omitted). Both the quantity

and quality of evidence may be considered. See Norris v. Citibank, 308 F.3d 880, 884 (8th Cir. 2002). 6. Denial of Benefits ­ In its ultimate decision, Hartford

found that plaintiff was not disabled under the "any occupation" standard as established by the Policy. Hartford concluded that the plaintiff could engage in a light, sedentary, occupation, given her level of function. As set forth above, the decision to deny coverage is being reviewed by this Court for abuse of discretion. of-discretion standard, the Court must Under the abusewhether a

determine

reasonable person could have reached the same decision.

See House

v. Paul Revere Life Ins. Co., 241 F.3d 1045, 1048 (8th Cir. 2001). This inquiry focuses on the presence or absence of substantial evidence supporting the administrator's decision. Id. While the

administrator's decision need not be supported by a preponderance of the evidence, there must be "`more than a scintilla.'" Id. (citations omitted). Also, because here Hartford both determines

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whether an employee is eligible for benefits and pays benefits out of its own pocket, that "conflict of interest" is a factor to be considered. Upon its review of the matter, the Court concludes that the

information before Hartford was sufficient to support its decision to deny coverage. See House v. Paul Revere Life Ins. Co., 241 F.3d

1045, 1048 (8th Cir. 2001). The record shows that, based upon the entirety of plaintiff's medical records, Hartford concluded that plaintiff could perform the duties of certain light, sedentary occupations. Hartford's

decision was supported by the opinions of three physicians who were asked to perform independent medical reviews of the plaintiff's case. Although plaintiff argues that the doctors hired by Hartford did not physically examine the plaintiff, "plan administrators are not obliged to accord special deference to the opinions of treating physicians." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003). Plaintiff argues that Hartford abused its discretion in

denying the plaintiff's benefits because the plaintiff had been approved for Social Security Disability and because Hartford did not properly consider the Social Security Administration's award of benefits. However, the Court is not persuaded by these arguments

since Hartford's decision letter states that its denial was based

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on "all of the documents" in plaintiff's file and "an ERISA plan administrator or fiduciary generally is not bound by a SSA

determination that a plan participant is disabled, even when the plan's definition of disabled is similar to the definition the SSA applied." Rutledge v. Liberty Life Assur. Co. Of Boston, 481 F.3d

655, 660-61 (8th Cir. 2007)(citing Farfalla v. Mutual of Omaha Ins. Co., 324 F.3d 971, 975 (9th Cir. 2003)). Finally, although there is a purported "conflict of interest" due to Hartford's financial interest in this claim, the Court finds no evidence to support the argument in this case that the "conflict of interest" weighed in in Hartford's decision at all. In light of its review of the matter, the Court cannot say that Hartford was unreasonable in its denial of coverage. "`It is not unreasonable for a plan administrator to deny benefits based upon a lack of objective evidence.'" Manning v. American Republic

Ins. Co., 604 F.3d 1030 (8th Cir. 2010)(citations omitted). 7. Conclusion ­- Based on the foregoing, the Court concludes

that plaintiff is not entitled to a judgment against the defendant and that her claims against defendant must be dismissed. Accordingly, plaintiff's Motion for Summary Judgment (Doc. 11) must be denied. The Court further concludes that Hartford Life and Accident Insurance Company's Response to Jannette Neal's Motion for Summary

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Judgment and Cross-Motion for Judgment on ERISA Administrative Record (doc. 14) should be granted and that each party should be required to bear its own costs and attorney's fees. IT IS, THEREFORE, ORDERED: * that plaintiff's Motion for Summary Judgment (Doc. 11) is

denied; and * that Hartford Life and Accident Insurance Company's

Response to Jannette Neal's Motion for Summary Judgment and CrossMotion for Judgment on ERISA Administrative Record (doc. 14) is granted; and * fees. IT IS, FURTHER ORDERED that, in light of the foregoing, this case should be, and hereby is, DISMISSED. IT IS SO ORDERED. /S/JIMM LARRY HENDREN JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE that each party shall bear its own costs and attorney's

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