Dabush v. The Gaurdian Life Ins Co of Amer

Filing 43

RULING granting 32 Motion for Summary Judgment. Signed by Judge Alvin W. Thompson on 8/15/2011. (Jean-Louis, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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AMIEL DABUSH,
:
:
Plaintiff,
:
:
v.
:
:
THE GUARDIAN LIFE INSURANCE
:
COMPANY OF AMERICA,
:
:
Defendant.
:
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Case No. 3:10cv00067 (AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Amiel Dabush (“Dabush”) brings this complaint
pro se pursuant to the Employee Retirement Income Security Act of
1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”) seeking to recover
disability benefits denied by defendant The Guardian Life
Insurance Company of America (“Guardian”).

Guardian has moved

for summary judgment, arguing that its decision to deny the
plaintiff benefits was not arbitrary or capricious.

For the

reasons set forth below, Guardian’s motion is being granted.
I.

FACTUAL BACKGROUND
The plaintiff is a software engineer and the Vice President

of Digitalk, Inc. (“Digitalk”).

Digitalk provides its employees,

including the plaintiff, with an employee benefit plan (the
“Plan”) issued by Guardian.

The Plan provides disability

benefits under a group long-term disability (“LTD”) policy, and
Guardian both evaluates claims for benefits and pays benefits
1

claims.

Guardian is “the Claims Fiduciary with discretionary

authority to determine eligibility for benefits and to construe
the terms of the plan with respect to claims.”

(Admin. Record

(Doc. No. 34-1) at AR 0410.)
On March 2, 2008, the plaintiff suffered an injury which was
later diagnosed as a herniated disk, which caused right leg pain
and weakness.

The plaintiff met with Doctor Scott P. Sanderson

(“Sanderson”) regarding his injury, and decided to undergo
surgery at Sanderson’s recommendation.

The plaintiff’s surgery,

a right L4-5 hemilaminotomy and microdiskectomy, took place on
April 24, 2008.
On October 21, 2008, the plaintiff had a follow-up
appointment with Sanderson.

The plaintiff reported that he still

experienced some achiness in his lower back with prolonged
sitting, and he asked Sanderson to fill out some disability paper
work for him.

Sanderson believed that the plaintiff could work

an eight-hour day, but would need to make some adjustments at
work so that he would not be sitting all day.

Sanderson

completed the disability paperwork.
On October 30, 2008, Guardian received the plaintiff’s claim
for LTD benefits.

The plaintiff claimed that he was unable to

perform his job because he could not tolerate sitting for a
sufficient amount of time.

Guardian contacted the plaintiff and

the plaintiff’s general physician, Doctor Igal Staw (“Staw”),
2

requesting that they submit various documents pertaining to the
plaintiff’s eligibility for LTD benefits.

On December 18, 2008,

Guardian sent the plaintiff a letter informing him that Guardian
had determined that LTD benefits were payable, and the first
payment would cover the period from June 18, 2008 to November 17,
2008.

In order to receive benefits for the period after November

17, the plaintiff was required to continue submitting medical
updates from his physicians and other required documents, such as
financial statements.
After receiving the payment from Guardian, the plaintiff
believed that the amount he had received was incorrect.

He

contacted Guardian and informed it that the company had erred in
making its benefits determination.

Beginning on January 17,

2009, the plaintiff and his attorney contacted Guardian several
times about his benefits and sent Guardian updated financial
statements.

The plaintiff also filed a complaint with the State

of Connecticut Insurance Department’s Consumer Affairs office,
complaining about Guardian’s overall handling of his claim.

On

March 17, 2009, Guardian contacted the plaintiff to tell him that
it was in the process of recalculating his benefits, and on March
20, 2009, it informed him that it would be sending him an
additional $22,002.20 that it owed him.
On or about March 31, 2009, the plaintiff revisited
Sanderson and requested that he fill out disability forms for
3

him.

Sanderson determined that it was reasonable to extend the

disability status and filled out the documentation.

Sanderson

indicated that the plaintiff could work part-time and that he had
a “slight limitation of functional capacity” and was “capable of
light work.”

(Admin. Record at AR 0261.)

Sometime in April, the plaintiff began experiencing more
pain after driving a car for four hours without interruption.
returned to Sanderson for treatment on April 21, 2009.
Sanderson’s medical records for the visits by the plaintiff on
March 31 and April 21 were summarized by Guardian in
correspondence to the plaintiff as follows:
3/31/09 visit - “. . . presents with a complaint of
leg pain.” “Last week he had a severe exacerbation of
leg symptoms, but this time on the left side. He drove
4 hours uninterrupted to drive his son to college,
which is something he regularly would not do.
Afterwards, he had severe left lower back and buttock
pain with radiation to the upper posterior thigh. He
received prednisone from his primary care physician as
I was away that week.
Most of these symptoms have
resolved but he is somewhat concerned about new
pathology.” “He continues to have difficulty sitting
for more than an hour and he continues to work part
time and be partially disabled.” An MRI was ordered.
Rx for Vicodin 5-500 MG was ordered, no refill.
4/21/09 visit - “. . . presents for recheck of leg
pain.” “He presented with an MRI of the lumbar spine
from Yale New Haven Hospital. It shows a new left L3-4
paracentral contained herniated disk with left L4 nerve
root compression.
It does not show any recurrent or
residual disk herniation on the right at L4-5.
This
fits with his new onset of left L4 distribution pain
and weakness that he had on this last visit . . . he
does not have leg pain anymore, nor weakness or

4

He

complaints of numbness.”
routine.”

“Plans: Follow up as needed -

(Admin. Record at AR 0261 (emphasis added).)
On the forms, dated April 21, 2009, that Sanderson submitted
to Guardian regarding the plaintiff’s progress and disability
status, Sanderson indicated that the plaintiff was capable of
sitting for three hours at a time, of standing for three hours at
a time, and of walking for one hour at a time, and that he was
capable of light work.

A patient who is cleared for “light work”

is capable of “[l]ifting 20 pounds occasionally maximum with
frequent lifting and/or carrying up to 10 pounds.

A job would

also be in this category if it involved minimal weight but
frequent standing and/or walking; or repetitive use of push/pull
arm controls or leg controls.”

(Admin. Record at AR 0124.)

In response to Sanderson’s evaluation, Guardian provided
Sanderson with information about the physical requirements for
the plaintiff’s occupation as a software engineer.

In light of

that occupational information, Guardian asked whether Sanderson
believed that the plaintiff was capable of working a sedentary
job for up to seven hours per day.

In a response dated April 29,

2009, Sanderson answered “yes,” indicating that the plaintiff was
capable of working up to seven hours at a sedentary job “as long
as positional changes are possible.”
5

(Admin. Record at AR 0225.)

The response indicated that Sanderson had seen the plaintiff on
April 21, 2009.
On May 20, 2009, Guardian sent the plaintiff a letter
stating it had determined that he no longer qualified for LTD
payments as of April 21, 2009.

In the May 20, 2009 letter, in

the first paragraph under the heading “How We Reached Our
Decision,” Guardian wrote:
We received a physical capabilities evaluation form
completed by Dr. Sanderson on April 21, 2009.
He
advised that you are capable of sitting 3 hours at one
time; standing 3 hours at one time; walking for 1 hour
at a time; lifting up to 10 pounds occasionally;
pushing/pulling up to 10 pounds frequently; capable for
using
both
hands
for
repetitive
motions
never
bending/stopping/ squatting/crouching/kneeling/crawling
/climbing ladders; seldom climbing stairs/reaching out/
reaching above shoulders/driving; capable of light work
for 7 hours a day.
(Admin. Record at AR 0209.)

Under the Plan provisions, net

monthly payments end on the earliest of:
(a) the date the employee’s disability ends;
(b) the date the employee dies;
(c) the end of the maximum payment period;
(d) the date the employee fails to give us any proof of
disability we require;
(e) the date the employee refuses to allow any physical
exam we require;
(f) the date the employee is no longer under the
regular and continuing care of a doctor;
(g) the date benefits end in accord with any
rehabilitation provision of this plan.

6

(Admin. Record at AR 0395.)

The Plan further provides that an

employee’s disability ends on the earliest of
(a) the date the employee earns or we determine he or
she is able to earn at a rate of at least 80% of his or
her indexed prior monthly earnings; or (b) the date we
determine the employee is able to perform the major
duties of his or her regular occupation or employment
on a full-time basis, even if the employee chooses not
to perform such duties.
(Admin. Record at AR 0394.)

Guardian’s letter stated that the

plaintiff was no longer disabled, and therefore no longer
entitled to benefits, because he was able to earn at a rate of at
least 80% of his indexed prior monthly earnings.
Guardian used the following Plan provisions regarding
earnings to determine that the plaintiff was able to earn at a
rate of at least 80%:
“Basic monthly earnings” are based on the amount of an
employee’s earnings received from the employer as
reported to us. These earnings are used in determining
the amount of premiums due for the coverage and for
projecting an employee’s gross monthly benefit under
this plan.
The types of earnings that we include as
basic monthly earnings are shown in the schedule.
“Prior monthly earnings” means the employee’s rate of
basic monthly earnings as last reported to us prior to
the start of his or her disability.
An employee’s
prior monthly earnings are used in determining his or
her gross monthly benefit under this plan.
“Indexed prior monthly earnings” means the employee’s
rate of prior monthly earnings adjusted annually by an
indexing factor.
An employee’s indexed prior monthly
earnings are used in determining the maximum amount of
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current monthly earnings a disabled employee can earn
under this plan and still receive benefits. For more
information on this plan’s indexing benefit see “The
Indexing Benefit.”
(Admin. Record at AR 0403.)

Based on both Sanderson’s conclusion

that the plaintiff was capable of light work for up to seven
hours a day and the financial statements the plaintiff had
submitted regarding his prior earnings, Guardian determined that
the plaintiff was capable of earning at least 80% of his indexed
prior monthly earnings.

Therefore, he was no longer eligible for

LTD benefits.
On June 2, 2009, the plaintiff sent Guardian a letter
stating that Guardian had misinterpreted Sanderson’s letter
indicating that the plaintiff was capable of working at a
sedentary job for up to seven hours per day.

The plaintiff

stated that he was incapable of sitting for a long time, and if
he had to do so, he needed to take pain medication which affected
his ability to concentrate.

Because he could not work sitting,

standing, lying down, walking around or on pain medication, the
plaintiff believed that he was still disabled and entitled to LTD
benefits.
On June 5, 2009, Guardian responded that it was treating the
plaintiff’s June 2, 2009 letter as an appeal of the decision to
terminate his LTD payments.

The letter stated, “please advise if
8

you intend to submit additional information for our review.
Please submit any additional information by June 22, 2009 to be
included in our review. . . .

If you are unable to provide the

requested information by June 22, 2009 and require an extension,
please contact our office.”

(Admin. Record at AR 0206.)

Guardian stated that it would begin reviewing the plaintiff’s
appeal after it received updated information and the plaintiff’s
medical history from Sanderson and Staw.
In conducting its review of the plaintiff’s appeal, Guardian
contacted Sanderson to clarify his previous statements about the
plaintiff’s capacity for work.

On July 22, 2009, Sanderson

responded to Guardian’s request for information, stating:
. . . I believe the patient can perform his job as a
software engineer, working from home up to 7 hours a
day, allowing for changes in his position to relieve
back and leg symptoms.
Although an 8 hour day is a typical workday I believe
that because his job requires mostly sitting that he
would need multiple breaks during the day to get up and
walk around.
Therefore during a typical 8 hour work
day I believe that he would only be capable of working
7 hours.
This means that he would need one hour out of every 8
hour work day to make changes in his position to get up
and walk around to help alleviate lower back symptoms
and right leg symptoms.
I have not discussed with the patient
medication affects his ability to work.

9

how

his

I have only prescribed him Vicodin once during the
March 31, 2009 office visit. He was given 80 pills and
has not required a refill from me since then.
Although Vicodin can cause cloudiness of sensorium and
inability to concentrate, those that take medication
regularly generally do not have those symptoms.
He is certainly not taking a high dose according to my
records.
He was given Vicodin for the new left-sided symptoms
which were then resolved by the April 21, 2009 visit.
Prior to that he had approximately 1 year of residual
right leg symptoms for which he did not need any
Vicodin from my office.
Regarding our October 21, 200[8] discussion about
returning to soccer and other activities, I had
released him back to any activity that he could
tolerate including soccer.
(Admin. Record at AR 0098.)
Guardian also reviewed the plaintiff’s medical history and
all previously submitted information, and conducted a pharmacy
canvass to determine whether the plaintiff had refilled the
Vicodin prescription given to him by Sanderson.

The results of

the canvass showed that the plaintiff had not refilled the
prescription.
On July 31, 2009, Guardian wrote to the plaintiff to
communicate that:
We are continuing our review of your request for
reconsideration of our decision to decline Long Term
Disability benefits on your claim.

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As part of this reconsideration review your claim is
being reviewed by one of our medical specialists. The
medical specialist has not yet completed the review of
your claim.
For this reason, Guardian requires an additional 45 day
extension to complete our review.
We will continue to make every effort to facilitate a
prompt and fair decision while keeping you informed of
this process.
(Admin. Record at AR 0086.)
On September 14, 2009, after reviewing the updated documents
and conducting its review, Guardian sent the plaintiff a letter
denying his appeal.

Guardian provided the plaintiff with the

relevant plan provisions and a summary of the facts that were
used in making the decision.

Guardian quoted from Staw’s medical

records for visits during the period beginning March 28, 2008 and
ending May 8, 2009 and from Sanderson’s medical records for the
period beginning April 14, 2008 and ending April 21, 2009.

It

also quoted Sanderson’s July 22, 2009 response to Guardian.
Guardian concluded that “[b]ased on the medical evidence in file,
you are capable of performing the major duties of your regular
occupation of Software Engineer 7 hours per day, or 35 hours per
week.”

(Admin. Record at AR 0060.)

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Guardian also spelled out in greater detail how it had
determined that the plaintiff could earn at least 80% of his
indexed prior monthly earnings.

Guardian wrote:

Your prior monthly earnings are $8197.22 per month, or
$98,366.64 per year.
Based on a 40 hour week, this
figure
represents
an
hourly
wage
of
$47.29.
80%=$6557.78 per month, or $78,693.36 per year.
If you work 7 hours per day, or 35 hours per week @
47.29 per hour you are capable of earning $1655.15 per
week, or $7172.32 per month, or $86,067.80 per year.
This figure is greater than 80% of your indexed prior
monthly earnings.
(Admin. Record at AR 0061.)

Therefore, Guardian again concluded

that the plaintiff was not eligible for LTD benefits under the
Plan provisions and stated “[t]his is Guardian’s final position
on this matter.”

(Admin. Record at AR 0062.)

At this time,

Guardian closed the administrative record regarding the
plaintiff’s claim.
Approximately two months later, on November 17, 2009, the
plaintiff submitted to Guardian an updated letter from Sanderson.
Sanderson stated that after seeing the plaintiff again, he wanted
to clarify his July 22, 2009 letter regarding the plaintiff’s
capacity for work.

Sanderson stated that the July 22 letter had

been written several months after his last encounter with the
plaintiff and although the letter was written with the most up to
date information he had at the time, his statements in the letter
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did not appear to accurately reflect the plaintiff’s capacity for
work as of July 22.

Based on an updated exam and the plaintiff’s

assertions, Sanderson wrote that he believed that the plaintiff
was now
able to work about 3 to 4 hours a day in a 12 hour
workday and unfortunately he has had a worsened
neurologic exam coincident with worsened back and leg
symptoms.
Unfortunately, his MRI and x-rays did not
show a surgically treatable problem and therefore I
think this is likely to be a permanent disability.
(Amiel Dabush Aff. (Doc. No. 36-1) (“Dabush Aff.”) ¶ 11-14, Jan.
10, 2011 (Letter from Scott Sanderson, M.D., dated Nov. 17,
2009).)

This letter was not considered by Guardian because it

had already reached a final decision on the plaintiff’s appeal
and closed the administrative record.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law.
R. Civ. P. 56(c).

Fed.

See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Gallo v. Prudential Residential Servs., 22 F.3d
1219, 1223 (2d Cir. 1994).

When ruling on a motion for summary

judgment, the court may not try issues of fact, but must leave
those issues to the jury.

See, e.g., Anderson v. Liberty Lobby,
13

Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd. Of
Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the trial

court’s task is “carefully limited to discerning whether there
are any genuine issues of material fact to be tried, not to
deciding them.

Its duty, in short, is confined . . . to issue-

finding; it does not extend to issue-resolution.”

Gallo, 22 F.3d

at 1224.
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all inferences in its
favor.”

Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.

2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp.,
902 F.2d 174, 177 (2d Cir. 1990)).

However, the inferences drawn

in favor of the non-movant must be supported by the evidence.
“[M]ere speculation and conjecture” is insufficient to defeat a
motion for summary judgment.

Stern v. Trs. of Columbia Univ.,

131 F.3d 305, 315 (2d Cir. 1997) (quoting Western World Ins. Co.
v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
Because the plaintiff in this case is proceeding pro se, the
court must read the plaintiff’s pleadings and other documents
liberally and construe them in a manner most favorable to the
plaintiff.

See Burgos, 14 F.3d at 790.

14

Moreover, because the

process of summary judgment is “not obvious to a layman,” Vital
v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999), the
district court must ensure that a pro se plaintiff understands
the nature, consequences and obligations of summary judgment, see
id. at 620-21.

Thus, the district court may itself notify the

pro se plaintiff as to the nature of summary judgment; the court
may find that the opposing party’s memoranda in support of
summary judgment provide adequate notice; or the court may
determine, based on thorough review of the record, that the pro
se plaintiff understands the nature, consequences, and
obligations of summary judgment.

See id.

After reviewing the defendants’ memorandum in support of
summary judgment and the plaintiff’s submissions in opposition to
summary judgment in this case, the court concludes that the
plaintiff understands the nature, consequences and obligations of
summary judgment.

First, the defendant served the plaintiff with

the notice to pro se litigants required by Local Rule 56(b).
Second, the defendants’ memorandum states the nature and
consequences of summary judgment.

Third, the plaintiff submitted

a complete response to the defendants’ motion which indicates
that he understands summary judgment.

15

The plaintiff’s opposition

contains argument in opposition to each of the defendant’s
contentions and includes an affidavit and numerous exhibits.
III. DISCUSSION
A.

Standard of Review

“ERISA does not set out the applicable standard of review
for actions challenging benefit eligibility determinations.”
Zuckerbrod v. Phoenix Mut. Life Ins. Co., 78 F.3d 46, 49 (2d Cir.
1996).

The Supreme Court looked to principles of trust law for

guidance regarding the applicable standard of review and held
that “a denial of benefits challenged under § 1132(a)(1)(B) is to
be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan.”
(1989).

Firestone Tire and Rubber v. Bruch, 489 U.S. 101, 115

Where “written plan documents confer upon a plan

administrator the discretionary authority to determine
eligibility, we will not disturb the administrator’s ultimate
conclusion unless it is ‘arbitrary and capricious.’”

Pagan v.

NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995).
“In determining whether plan administrators have been
granted discretionary authority, courts focus on the breadth of
the administrators’ power – their authority to determine

16

eligibility for benefits or to construe the terms of the plan.”
Pretty v. The Prudential Ins. Co. of Am., 696 F. Supp. 2d 170,
180 (D. Conn. 2010) (internal quotation marks omitted).

Although

no one word or phrase must always be used to confer
discretionary authority, the administrator’s burden to
demonstrate insulation from de novo review requires
either language stating that the award of benefits is
within the discretion of the plan administrator or
language that is plainly the functional equivalent of
such wording.
Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d
243, 252 (2d Cir. 1999).
“If a benefit plan gives discretion to an administrator or
fiduciary who is operating under a conflict of interest, that
conflict must be weighed as a facto[r] in determining whether
there is an abuse of discretion.” Firestone, 489 U.S. at 115.
Where a plan administrator both evaluates claims for benefits and
pays benefits claims, a conflict of interest exists.
Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008).

See Metro.

When weighing

different considerations regarding the lawfulness of benefit
denials, a conflict of interest
should
prove
more
important
(perhaps
of
great
importance) 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. . . . It should prove less important
(perhaps to a vanishing point) where the administrator
has taken active steps to reduce potential bias and to
17

promote accuracy, for example, by walling off claims
administrators from those interested in firm finances,
or
by
imposing management
checks
that penalize
inaccurate decisionmaking irrespective of whom the
inaccuracy benefits.
Glenn, 554 U.S. at 117.

A conflict of interest “will weigh as a

factor in determining whether there was an abuse of discretion,
but it does not make de novo review appropriate.”

Hobson v.

Metro. Life Ins. Co., 574 F.3d 75, 82-83 (2d Cir. 2009).

“This

is true even where the plaintiff shows that the conflict of
interest affected the choice of a reasonable interpretation.”
McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir.
2008).
In this case, the Plan explicitly provides that, as the
Claims Fiduciary, Guardian has the “discretionary authority to
determine eligibility for benefits and to construe the terms of
the plan with respect to claims.”

(Admin. Record at AR 0410.)

Because this language clearly grants Guardian discretion to
determine eligibility for benefits, the decision to terminate the
plaintiff’s LTD benefits is subject to the arbitrary and
capricious standard of review.
As Guardian both determines eligibility for benefits and
pays benefits claims, Guardian is operating under a conflict of
interest.

While this does not change the standard of review to

18

de novo, it does weigh as a factor in determining whether
Guardian abused its discretion.

The plaintiff has not

specifically alleged that or provided facts to suggest that
Guardian has a history of biased claims administration.

However,

his correspondence with Guardian and the issues the plaintiff had
to address in collecting the June 18, 2008 to November 17, 2008
LTD benefits could be construed as evidence of a history of
biased claims administration.

Additionally, Guardian has not

produced evidence that it has taken active steps to reduce
potential bias and to promote accuracy.

Therefore, Guardian’s

conflict of interest will weigh more heavily when assessing
whether Guardian acted in an arbitrary and capricious manner in
terminating the plaintiff’s LTD benefits.
B.

Review of Guardian’s Decision to Deny LTD Benefits

An administrator’s conclusion will not be deemed arbitrary
and capricious unless it is “without reason, unsupported by
substantial evidence or erroneous as a matter of law.”
F.3d at 442.

Pagan, 52

“Substantial evidence is such evidence that a

reasonable mind might accept as adequate to support the
conclusion reached by the administrator and requires more than a
scintilla but less than a preponderance.”

Durakovic v. Bldg.

Serv. 32 BJ Pension Fund, 609 F.3d 133, 141 (2d Cir. 2010)

19

(internal quotation marks omitted).

“Where both the plan

administrator and a spurned claimant offer rational, though
conflicting, interpretations of plan provisions, the
administrator’s interpretations must be allowed to control.”
McCauley, 551 F.3d at 132.
The bases for Guardian’s termination of the plaintiff’s LTD
benefits and denial of the plaintiff’s appeal of that termination
were set out in the letters from Guardian to the plaintiff dated
May 20, 2009 and September 14, 2009, respectively.

Both letters

cited the relevant Plan provisions and reliance on reports by
Sanderson indicating that the plaintiff was able to work up to
seven hours per day.
Guardian’s reliance on the plaintiff’s treating physician’s
opinion regarding the plaintiff’s capacity for work was neither
arbitrary nor capricious.

After receiving the first report from

Sanderson stating that the plaintiff was capable of sitting for
three hours at a time, standing for three hours at a time, and
walking for one hour at a time, Guardian sent Sanderson
information about the physical requirements of the plaintiff’s
occupation.

Based on a review of that information, Sanderson

unequivocally stated that the plaintiff was capable of working a
sedentary job for up to seven hours out of an eight-hour day as

20

long as positional changes were possible. Because the plaintiff
worked from home, Guardian reasonably concluded that the
plaintiff would be able to make the necessary positional changes.
The plaintiff stated in his appeal that he could not sit for
a sufficient amount of time to do his job, and he could not work
standing, lying down, walking around or on pain medication.

The

plaintiff also stated that Guardian had misinterpreted
Sanderson’s letter.

Therefore, after receiving the appeal,

Guardian again requested information from Sanderson regarding the
plaintiff’s ability to work.

Sanderson wrote that he believed

the plaintiff was able to work in a sitting position for seven
hours a day so long as he could take multiple breaks to walk
around.

He also wrote that he had not discussed with the

plaintiff how Vidocin affected his ability to work, but observed
that the plaintiff was not taking a high dose.

His additional

comments suggested that the Vicodin that he had prescribed should
not have a significant impact on the plaintiff’s ability to
perform his job.

Guardian subsequently performed the pharmacy

canvass, and the results showed that the plaintiff had not
refilled the prescription for Vicodin.
Based on the information provided by Sanderson prior to
both the original termination of benefits and the denial of the

21

plaintiff’s appeal, it was reasonable for Guardian to conclude
that the plaintiff was capable of performing his job as a
software engineer for up to seven hours a day.

Because the

plaintiff could work for seven hours out of an eight hour work
day, under the Plan provisions, the plaintiff could earn at least
80% of his indexed prior monthly earnings and was no longer
disabled.
While the court must consider the fact that Guardian was
operating under a conflict of interest, there is no indication
that the conflict of interest affected Guardian’s interpretation
of the Plan provisions or its evaluation of the evidence as to
whether the plaintiff was disabled.

The decisions to terminate

benefits and to deny the plaintiff’s appeal involved little in
the way of discretionary analysis by Guardian.

The determination

that the plaintiff could work for up to seven hours a day was
made by the plaintiff’s own physician, not an employee of
Guardian.

The calculation of 80% of the plaintiff’s indexed

prior monthly earnings was based on financial statements the
plaintiff submitted.

The only statements contrary to Sanderson’s

were the plaintiff’s assertions that he could not sit for a
sufficient amount of time to perform his job, and if he had to do
so, he needed to take pain medication, which affected his ability

22

to concentrate.

Yet the plaintiff had never refilled the

prescription Sanderson had given him for pain medication.

It was

not unreasonable or an abuse of discretion for Guardian to put
greater weight on Sanderson’s repeated statements about the
plaintiff’s ability to work than on the plaintiff’s assertions.
C.

Sanderson’s November 17, 2009 Letter

In reviewing an administrator’s termination of benefits, the
decision “of whether to consider evidence from outside of the
administrative record is within the discretion of the district
court.

Nonetheless, the presumption is that judicial review is

limited to the record in front of the claims administrator unless
the district court finds good cause to consider additional
evidence.”

Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125

(2d Cir. 2003) (internal quotation marks omitted).

“[T]rial de

novo on new evidence would be inconsistent with reviewing the
administrator’s decision about whether to grant the benefit.”
Id.
Good cause to consider information beyond the administrative
record has been found to exist where the claims administrator was
operating under a conflict of interest and the procedures
involved in arriving at the claim determination were flawed.

See

DeFelice v. Am. Int’l Life Assurance Co. of N.Y., 112 F.3d 61, 66

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(2d Cir. 1997) (“[W]here such a blatant conflict exists at the
administrative level . . . courts must exercise fully their power
to review de novo and to be substitute administrators.”).

Good

cause has also been found to exist where the insurer’s reason for
denying benefits was not stated in its notices to the claimant.
See Juliano v. Health Maint. Org. of N.J., Inc., 221 F.3d 279,
289 (2d Cir. 2000) (“As a result of the failure of USH to state
that absence of ‘medical necessity’ was a reason for the denial
of benefits . . . the district court acted well within its
discretion in admitting additional evidence on that issue.”).
Conversely, good cause did not exist where an insurer gave the
claimant “ample time to submit additional materials.”

Muller,

341 F.3d at 125.
Here, there is not good cause to consider Sanderson’s
November 17, 2009 letter in determining whether Guardian abused
its discretion in terminating the plaintiff’s LTD benefits or in
denying his appeal.

When Guardian informed the plaintiff in its

May 20, 2009 letter that it had determined he was no longer
disabled, Guardian explicitly stated that the basis for its
determination was Sanderson’s evaluation form stating, inter
alia, that the plaintiff was capable of working seven hours per
day.

This letter gave the plaintiff proper notice of the reasons

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for the denial such that he could contest Guardian’s
determination.
In addition, after receiving the plaintiff’s appeal,
Guardian informed the plaintiff that it would obtain updated
medical records from his treating physicians.

Guardian asked the

plaintiff to submit any documents he wished Guardian to consider
by June 22, 2009, but informed him that if he could not meet that
deadline, he could request an extension.
The plaintiff incorrectly asserts that Guardian’s review of
his claim for LTD benefits was on-going when he submitted the
November 17, 2009 letter.

While the plaintiff received a letter

from Guardian dated July 31, 2009 informing him that the review
of his claim was continuing, that review was concluded by
September 14, 2009 when Guardian wrote to the plaintiff informing
him that it was denying his appeal.

The letter denying the

appeal stated, “[t]his is Guardian’s final position on this
matter.”

(Admin. Record at AR 0062.)

As this was a final

determination, Guardian closed the administrative record and the
review of the plaintiff’s claim ended.

The plaintiff avers that

the letter was submitted “shortly after Guardian told me that it
was conducting an ‘ongoing investigation’ of my claim.”
Aff. ¶ 15.)

(Dabush

However, the letter was submitted approximately

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three and a half months after the plaintiff was told that the
investigation was ongoing and over two months after Guardian
informed the plaintiff that his appeal was denied.
Because the plaintiff was put on notice of the reasons for
termination of his benefits, the plaintiff had ample time to
submit additional materials, and there is no evidence that the
claims evaluation procedure was flawed, good cause does not exist
for the court to consider Sanderson’s November 17, 2009 letter
which was submitted after Guardian had made its final
determination on the plaintiff’s appeal.
IV.

CONCLUSION
For the foregoing reasons, Guardian’s decision to terminate

the plaintiff’s benefits and to deny his appeal was not arbitrary
and capricious.

Therefore, the defendant’s Motion for Summary

Judgment (Doc. No. 32) is hereby GRANTED.

The Clerk shall enter

judgment accordingly and close this case.
It is so ordered.
Dated this 15th day of August, 2011 at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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