Rhodes v. First Reliance Standard Life Insurance Co

Filing 62

ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 34 Motion for Summary Judgment. See Attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 12/29/2011. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EVA M. RHODES,
PLAINTIFF,

v.
FIRST RELIANCE STANDARD LIFE
INURANCE COMPANY,
DEFENDANT.

:
:
: CIVL ACTION NO.
: 3:10cv1289(VLB)
:
: DECEMBER 29, 2011
:
:
:
:

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S CROSS MOTION FOR
SUMMARY JUDGMENT [DKTS. ## 34, 36]
The Plaintiff, Eva Rhodes ("Rhodes"), proceeding pro se, brings this
action against First Reliance Standard Life Insurance Company ("FRSLIC"),
the Claims Evaluator and Claims Payor of a Long Term Disability Plan
established by Barnes & Noble for the benefit of its employees. The
Plaintiff became a beneficiary of the Plan on July 7, 2007. The Plaintiff
brings this action under the Employee Retirement Income Security Act of
1974 ("ERISA") and alleges that FRSLIC acted in an arbitrary and
capricious manner in denying her claim for long-term disability benefits.
Defendant has moved for summary judgment arguing that its decision to
deny Plaintiff long term disability benefits was not arbitrary and capricious.
Plaintiff has cross-moved for summary judgment arguing that the decision
was an abuse of discretion and seeks a reinstatement of benefits for her

1

chronic low back pain and major clinical depression. In particular, Plaintiff
argues that her chronic lower back condition prevents her from performing
the material duties of any occupation and therefore she qualifies as totally
disabled under the plan and is entitled to long term disability benefits. In
addition, Plaintiff argues that she is entitled to additional long term benefits
as a result of her mental health disorder. For the reasons stated hereafter,
Defendant’s motion for summary judgment is granted in part and denied in
part and Plaintiff’s cross motion for summary judgment is granted in part
and denied in part.
Facts
The parties' pleadings and the submissions filed in accord with the
Defendant's motion for summary judgment and the Plaintiff's cross motion
for summary judgment establish the following undisputed facts.
Rhodes began working at Barnes & Noble, Inc. ("Barnes & Noble")
on January 31, 2000 as a Merchandising Assistant. (Administrative Record
“AR” 512). Barnes & Noble held an Income Replacement Benefits for Total
Disability from Sickness or Injury Insurance Policy ("policy" or “plan”) with
FRSLIC. (AR 63-90). As a Class 2 employee of Barnes & Noble, Rhodes
was a participant in this policy. (AR 69 & 681). FRSLIC both determined an
employee’s eligibility and paid benefits from its own account. [Dkt. #34,
Def. Mem.].
FRSLIC’s policy states that "[w]e will pay a Monthly Benefit if an
Insured: (1) is Totally Disabled as the result of a Sickness or Injury covered

2

by this Policy; (2) is under the regular care of a Physician; (3) has
completed the Elimination Period; and (4) submits satisfactory proof of
Total Disability to us." (AR 79). "Totally Disabled" for Class 2 employees is
defined "as a result of an Injury or Sickness: (1) during the Elimination
Period and for the first 24 months for which a Monthly Benefit is payable,
an Insured cannot perform the material duties of his/her regular occupation
… (2) after a Monthly Benefit has been paid for 24 months, an Insured
cannot perform the material duties of any occupation. Any occupation is
one that the Insured's education, training or experience will reasonably
allow. We consider the Insured Totally Disabled if due to an Injury or
Sickness he or she is capable of only performing the material duties on a
part-time basis or part of the material duties on a Full-time basis." (AR 72).
FRSLIC’s policy has a specific limitation for mental or nervous
disorders which provides that "Monthly Benefits for Total Disability caused
by or contributed to by mental or nervous disorders will not be payable
beyond an aggregate lifetime maximum duration of twenty-four (24) months
unless the Insured is in a Hospital or Institution at the end of the twentyfour (24) month period." (AR 82). Mental or nervous disorders are defined
as "disorders which are diagnosed to include a condition such as …
mental illness." (AR 82).
i.

Rhodes’s Physical Disability Claim

On or around February 18, 2007, the Plaintiff submitted a claim to
FRSLIC for long-term disability benefits. (AR 693-94). The basis for her

3

claim was "severe pain in back, muscle spasms severity [sic]. Difficult to
sit or walk" arising from a car accident on July 29, 2006. (AR 693).
Supporting Rhodes’s claim was a physician’s statement prepared on
February 9, 2007 by Rhodes’s treating physician, Allison Kerr, M.D.
According to Dr. Kerr’s statement, Rhodes' symptoms were "pain in lower
back and neck after a motor vehicle accident. Unable to sit or walk due to
severe spasms." (AR 575). Dr. Kerr indicated under restrictions that
"patient unable to sit for any length of time or any kind of activity at this
time" but that Rhodes would achieve a full recovery in 5-6 months. (AR
576).
FRSLIC initially determined that Rhodes did not meet the definition
of "Totally Disabled" under their policy because her back pain was a
preexisting condition. (AR 529-30). During that time, Rhodes became
employed at the Robert Half Temp Agency with her first assignment on
July 17, 2007 which continued until she began working for ING Inc. ("ING")
as the Senior Administrative Assistant to the VP of Human Resources from
December 2007 through June 10, 2008. (AR 285, 475 & 511). Several
months later, on January 18, 2008, FRSLIC notified Rhodes by letter that
they had changed their preexisting condition standard due to a descision
rendered in the case of Benesowitz v. Metropolitan Life Insurance
Company, reported at 8 N.Y.3d 661 (2007), and informed Rhodes that she
might qualify for a disability claim. (AR 521).

4

FRSLIC notified Rhodes on April 7, 2008 that she qualified for long
term disability benefits only for a closed period of time of July 7, 2007
through July 17, 2007 due to her subsequent employment. (AR 501-03).
FRSLIC explained that since Rhodes "reported to us that you were
essentially doing the same kind of work at ING as you had been performing
at Barnes & Noble, we determined that as of July 17, 2007 you were no
longer Totally Disabled as defined by the policy." (AR 481).
Rhodes responded by letter dated July 17, 2008 stating that she "did
not perform the same type of work in the subsequent positions that I held
after the position I held with Barnes & Noble." (AR 475). In the letter she
detailed her responsibilities at Barnes & Noble that included lifting boxes
of books. In contrast, at the Robert Half Agency she stated that "I filled in
temporarily … for a variety of positions none of which included lifting
boxes of books" and at ING she "primarily answered emails, scheduled
meetings and handled expense and travel paperwork." (AR 475). Based on
this additional information regarding the nature of her job responsibilities
and duties at Barnes & Noble versus her job responsibilities and duties at
the Robert Half Agency, FRSLIC classified her job at Barnes & Noble as
"light" and her current job at ING as "sedentary.” (AR 467).
After reconsideration in light of the information Rhodes provided
regarding her position at Barnes & Noble, FRSLIC concluded that Rhodes
could not perform the material duties of her regular occupation at Barnes &
Noble including light lifting duties and therefore met the definition of

5

"Totally Disabled" during the Elimination Period and for the first 24 months
for which a Monthly Benefit is payable. FRSLIC notified Rhodes on
October 23, 2008 that her long-term disability benefits were approved
retroactive to July 17, 2007 through November 6, 2008. (AR 395). FRSLIC
also notified Rhodes that her continued receipt of long term disability
beyond November 6, 2008 would have to be supported by ongoing
documentation of her continuous disability. (AR 396).
On November 11, 2008, Dr. Kruger, Rhodes’s treating orthopedist,
reported to FRSLIC that he conducted an MRI on October 7, 2008 which did
“not reveal significant pathology.” (AR 370-371). Dr. Kruger stated that “I
do believe Ms. Rhodes has significant health issues, however, I do not
believe they are organically related to her spine.” Dr. Rhodes further
indicated that Rhodes “is being treated for depression. Perhaps this is a
somatization of significant underlying psychiatric disease.” (AR 370).
Somatization is defined as “conversion of a mental state into physical
symptoms; also the existence of physical bodily complaints in the absence
of a known medical condition.” Somatization Definition, MERRIAMWEBSTER.COM, http://www.merriam-webster.com/dictionary/somatization

(last visited November 7, 2011). Somatization disorder is a mental illness
usually beginning before age 20 characterized by multiple physical
complaints for which no physical cause can be found. Somatization
Disorder Definition,
DICTIONARY.COM,http://dictionary.reference.com/browse/somatization+disord

6

er (last visited November 7, 2011). Lastly, Dr. Kruger concluded that
“[a]lthough I suspect she has a disability, it is not clear to me that this
disability is related to an orthopedic problem with her spine” and indicated
that Rhodes will follow-up with him on an as needed basis. (AR 371).
After considering this documentation, FRSLIC notified Rhodes by
letter dated February 20, 2009 that it had determined that she was no longer
entitled to disability benefits based on physical disability citing its medical
department’s review of all medical records submitted and its determination
that her “complaints of Low Back Pain [] are not severe enough to support
you being totally disabled as defined by your policy." (AR 337-338).
FRSLIC based its determination on Dr. Kruger’s evaluation in which he
opined that Rhodes’s repeat lumbar MRI findings in 10/2008 do not reveal
“significant pathology,” that Rhodes’s back pain was not her “primary
condition” and questioned whether Rhodes’s back pain was a somatization
of her underlying psychiatric disease. (AR 370).
Rhodes appealed the February 20, 2009 decision denying her
benefits in a letter dated March 27, 2009 and once again argued that she
could not return to her previous job at Barnes & Noble because she
"cannot frequently lift 10-20 pounds … the boxes and books are frequently
a great deal heavier than that." (AR 325).
On August 31, 2009, FRSLIC wrote to Rhodes summarily informing
her that “[w]e have determined that our original decision to terminate LTD
benefits should be reversed.” (AR 288). However, FRSLIC did not explain

7

the basis or reasons for their determination. It is unclear whether this
reversal is related to Rhodes’s lower back pain claim or mental health claim
and whether it involved a redetermination of the Plaintiff's mental and
physical health claim. (id.).
As stated above after receiving twenty-four months of disability, the
definition of “total disability” under the plan changes. After a Monthly
Benefit has been paid for 24 months, “Total Disability” is defined as a
disability the result of which “an Insured cannot perform the material
duties of any occupation. Any occupation is one that the Insured's
education, training or experience will reasonably allow.” (AR 72). In July
2009, Rhodes had received twenty-four months of disability payments
under the plan. Accordingly, in September 2009, FRSLIC conducted a
residual employability analysis ("REA") based on internal medical reviews
of documentation from Rhodes’s treating physicians in order to determine
if Rhodes qualified as totally disabled under this new definition. (AR 267).
The REA found that Rhodes could perform the material duties of several
sedentary jobs and that "[t]he claimant has transferrable skills." (AR 267).
Based on this REA, on October 2, 2009, over twenty-four months
since her claim began, FRSLIC notified Rhodes that she no longer qualified
for disability benefits stating that "[b]ased on the available medical
information as well as information about your training, education and
experience, we have determined that you can perform and would qualify for
the following sedentary occupations: Administrative Clerk; Secretary;

8

Customer Service Representative; Contact Clerk; Passenger Rate Clerk;
Order Clerk." (AR 255).
On November 10, 2009, Rhodes appealed the decision and argued
that a medical evaluation by Dr. Mohr, another treating orthopedic
specialist at the University of Connecticut Health Center substantiated her
claim that she is unable to perform the material duties of any occupation
including sedentary occupations. (AR 251-252). Dr. Mohr reported that
Rhodes “is alert, oriented, pleasant, and interactive, in no apparent
distress. She does appear markedly uncomfortable. She is able to rise
from a chair. She walks about the exam room with an antalgic gait to the
right.” (AR 291-292). Dr. Mohr concluded that based on a June 8, 2009
MRI that Rhodes had “moderate to severe foraminal stenosis to disc bulge
and facet DJD, otherwise the degenerative disease that is mild
throughout.” (Id.). Dr. Mohr also indicated that Rhodes has “signs and
symptoms of axial low back pain with a radicular component that is very
severe. She does not have any deficit of reflex or strength” and that he
would “like her to do another trial of physical therapy” and “try her on
Neurontin.” In these reports, Dr. Mohr does not opine on whether Rhodes
is capable of performing the material duties of a sedentary occupation.
Rhodes submitted in conjunction with the reports from Dr. Mohr a
one page “return to work/school” form dated 11/9/2009 from the University
of Connecticut Health Center in which there is a check mark next to a row
regarding “return to work/school” and there is handwriting indicating that

9

the “estimated time out” to be “eight months.” (AR 253). Next to that row,
there is a nearly illegible handwritten note stating “Bend, Lift, Twist, Sitting,
Sedentary Work.” (Id.). There is no opinion expressed in reference to the
listed movements. There is no indication of the basis of ab opinion, no
medical or diagnostic tests referenced. Dr. Mohr’s does not articulate the
pathology of Rhodes’s pain and inability to return to work for eight months.
There are two different sets of handwriting on the form. Lastly, while the
form indicated that Rhodes was examined on November 8, 2009, there is no
indication on the form that Rhodes is scheduled for a reevaluation or a
follow up examination.
FRSLC hired Raymond J. Chagnon, M.D. to conduct an independent
medical evaluation ("IME") to ascertain the level of Rhodes’s physical
disability in connection with her appeal. (AR 227-236). On January 28,
2010, Dr. Chagnon issued a report in which he concluded that Rhodes "has
low back pain radiating into her legs … as a result of her chronic back pain
and leg pain she can sit frequently, she can stand frequently, she can walk
occasionally." (AR 230). Dr. Chagnon also concluded that Rhodes can
work on the sedentary lift level. (AR 232).
On March 10, 2010 FRSLIC notified Rhodes that her appeal on her
physical disability claim was denied as she possesses sedentary work
capacity based on the REA and Dr. Chagnon’s IME and that she had
exhausted all appeals for her physical disability claim. (AR 197-200).

10

ii.

Rhodes’s Mental Health Disability Claim

Rhodes first sought treatment for depression in September of 2008
when she began treatment with a psychiatrist, Dr. Lorenzo, after she had
been brought to the emergency room in a state of emotional crisis. (AR
370-371). Rhodes also began treatment for depression with a therapist,
Edwina Walker at the same time.
In December of 2008, Dr. Lorenzo and Walker provided FRSLIC with
documentation regarding her mental health condition. Dr. Lorenzo
reported that Rhodes suffers from “major depression, single episode
moderate degree” and recommended “treating depression with
antidepressant medication.” (AR 361-362). In particular on December 12,
2008, Dr. Lorenzo indicated that Rhodes was still depressed and that she is
“unable to return to work due to persistent depression.” He also
scheduled Rhodes for a follow-up examination in three months. [Id.].
Walker reported that Rhodes “exhibits a depressed affect with tearfulness
or a constricted affect” and stated that she did not recommend that Rhodes
return to work as she “has shown continued depression.” (AR 379).
After considering this documentation, FRSLIC notified Rhodes by
letter dated February 20, 2009 that they had determined that she did not
qualify for disability benefits based on her mental health disorder because
"[o]ur medical department has reviewed all medical records submitted and
has determined that your complaints of [] Depression are not severe

11

enough to support you being totally disabled as defined by your policy."
(AR 337-338). In particular, FRSLIC reasoned that Walker’s documentation
was not persuasive as it did not “qualify [Rhodes’s] mental status exams to
demonstrate depressive symptoms that would preclude work.” (AR 338).
FRSLIC further reasoned that while Walker noted Rhodes’s need for eight
more weeks of medical treatment, Rhodes had been on the same dose of
Prozac since October 2008 and that Dr. Lorenzo has not increased or
changed that dosage. FRLSIC concluded that Dr. Lorenzo’s note on
December 12, 2008 which indicated that Rhodes was not able to return to
work was also not persuasive since Dr. Lorenzo had scheduled a follow up
examination in the next the three months. FRLSIC reasoned that “if your
symptoms were moderate to severe enough to continue to impair work,
than it would be reasonable to assess you would continue to need
medication adjustments until your symptoms had improved. In summary,
your office visit notes from both mental health providers do not
demonstrate psychiatric restrictions & limitations are commensurate with
work impairment.” (AR 338).
Rhodes appealed the February 20, 2009 decision denying her
benefits in a letter dated March 27, 2009 and once again argued that she
could not return to her previous job at Barnes & Noble. She discussed her
mental health diagnosis of major depressive disorder and provided
updated information from Dr. Lorenzo and Walker to substantiate her claim.
(AR 326). As noted above, on August 31, 2009, FRSLIC reversed its denial

12

without explaining its reason. As noted above, it is unclear whether this
reversal is related to Rhodes’s mental health claim or lower back pain claim
and whether it was based on an evaluation of the Plaintiff's mental and
physical health claims. (id.). A letter dated March 10, 2011 suggests
FRSLIC’s August 2009 denial was based solely on Rhodes’s physical
disability claim.
On March 10, 2010 FRSLIC notified Rhodes that her physical
disability claim was denied but advised her that "our current review of your
claim file also noted numerous references to your past psychiatric
treatment as well … we believe that more review is needed to determine the
extent and duration of your psychiatric impairment. Therefore, we are
returning your claim file to the claims department for further review
concerning your psychiatric condition alone … If, following review of
additional information, an adverse claim decision is made concerning your
claim for benefits from a psychiatric perspective alone, you will be allowed
one additional appeal, based upon that decision." (AR 199 - 200).
In response, Rhodes provided updated information regarding her
mental health condition. See (AR 144). After reviewing the additional
material and conducting an internal review of Rhodes’s psychiatric file,
FRSLIC notified Rhodes by letter dated April 20, 2010 that her Long Term
Disability benefits were approved for a closed period of time of July 6, 2009
through January 12, 2010. (AR 175-178). FRLSIC stated that "[o]ur medical
department has reviewed all medical records submitted and has

13

determined that your concurrent impairing psychiatric component are not
severe enough beyond January 12, 2010 to support you being totally
disabled as defined by your policy." (AR 176). FRLSIC’s reasoned that on
January 12, 2010, Dr. Lorenzo prescribed Rhodes Zoloft and that “Dr.
Lorenzo’s records demonstrates you have ongoing chronic depressive and
anxiety symptoms and life stressors, by that they are not severe enough to
continue to preclude work. Dr. Lorenzo’s notes do not note any paranoid
or psychotic thinking and do demonstrate depressive symptoms have
improved on Zoloft.” In addition, FRLSIC concluded that the “medical
narrative from Edwina Walker does not correlate with Dr. Lorenzo’s medical
and is too vague to demonstrate that continued psychiatric functional
limitations are supported.” (AR 177).
Rhodes appealed the April 20, 2010 decision and argued that her
mental condition has not changed since July 2009 when her benefits were
extended until January 2010. (AR 135 & 141-42).
In response to her appeal, FRSLIC contracted with Peter Zeman, M.D.
to conduct an IME regarding her mental health claim. (AR 114-121). On
August 11, 2010, Dr. Zeman produced a report on Rhodes’s mental health
condition. Dr. Zeman reported that Rhodes indicated that her “physical
and emotional symptomatology … began by her account in 2005 [and] have
affected her life.” (AR 115). Dr. Zeman noted that Rhodes informed him
that “since 2005, my pain and depression have destroyed my well being
and my life.” (AR 116). Dr. Zeman’s concluded that her mental status

14

examination showed “no evidence of psychotic illness” but did “reveal
evidence of a severe depression” and that Rhodes suffers from “Major
Depressive Disorder, single episode, severe without psychotic features.”
(AR 117-118). Dr. Zeman further concluded that:
Ms. Rhodes has been psychiatrically impaired as of February 5, 2007.
Her status has not changed since that time, and she continues to be
severely impaired by major depression. The psychiatric component
of Ms. Rhodes’ illness became a contributing factor to her overall
medical condition beginning in 2005. Ms. Rhodes’ psychiatric
functional ability as of 1/12/2010 was Class 4 marked impairment. In
my opinion, the degree of her impairment…have significantly
impeded her useful work function as of January 12, 2010 and
ongoing. In my opinion, Ms. Rhodes’ prognosis for return to work is
very guarded. She has been and remains totally disabled from work
function since June 2008. (AR 118).
A month later on September 10, 2010, FRSLIC notified Rhodes that
they were denying her claim of total disability based on psychiatric
impairment and she was not entitled to further long-term disability benefits.
(AR 4-9). FRSLIC concluded based on Dr. Zeman’s evaluation that “your
diagnosis of chronic low back pain and Major Depressive Disorder
presented concurrently as of December 2005, and therefore, the benefits
payable in connection with your psychiatric claims should be limited to the
24-month period covering July 6, 2007 until July 6, 2009 following the date
benefits became effective.” (AR 8). FRSLIC also noted that “[a]lthough
your psychiatric impairment appears to be supported beyond January 12,
2010, you have exhausted the Maximum Duration of Benefits allowed under
the policy.” (Id.). With Rhodes’s administrative claims exhausted, Rhodes
filed suit in this Court against FRSLIC on August 11, 2010.

15

Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provide that a court
may grant a motion for summary judgment when the "movant shows that
there is no genuine dispute as to material fact." Fed. R. Civ. P. 56(a). "[A]
material fact is 'genuine,' that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). "The duty of the court is to determine
whether there are issues to be tried; in making that determination, the court
is to draw all factual inferences in favor of the party against whom
summary judgment is sought, viewing the factual assertions in materials
such as affidavits, exhibits, and depositions in the light most favorable to
the party opposing the motion. " Rodriguez v. City of New York, 72 F.3d
1051, 1060-1061 (2d Cir. 1995). An ERISA claim is analyzed using a
different standard. See Mohamed v. Sanofi-Aventis Pharmaceuticals,
No.06CIV.1504, 2009 WL 4975260, at *8 (S.D.N.Y. Dec. 22, 2009).
"[A] denial of benefits challenged under [ERISA] must 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." Mugan v. Hartford Life Group Insurance
Company, 765 F.Supp.2d 359, 368 (S.D.N.Y. 2011) (citing Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). When the benefit plan
grants the administrator the authority to determine eligibility for benefits,
"a court may not overturn the administrator's denial of benefits unless its

16

actions are found to be arbitrary and capricious, meaning 'without reason,
unsupported by substantial evidence or erroneous as a matter of law.'"
McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 131 (2d Cir. 2008).
“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.’” Celardo v. GNY Auto. Dealers Health & Welfare Trust,
318 F.3d 142, 146 (2d Cir. 2003) (quoting Miller v. United Welfare Fund, 72
F.3d 1066, 1072 (2d Cir. 1995)). “This scope of review is narrow and the
Court is not permitted to substitute its own judgment for that of the
decision maker.” Burgio v. Prudential Ins. Co. of America, Np.06-CV-6793,
2011 WL 4532482, at *4 (E.D.N.Y. Sept. 26, 2011) (citing Pagan v. NYNEX
Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995) and Jordan v. Ret. Comm. of
Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995)).
Although, Plaintiff in her motion for summary judgment argues that
the Court should apply a de novo standard of review, the Court on April 21,
2011 already ruled that the plan at issue clearly and explicitly granted the
Defendant discretionary authority to interpret the plan and policy and to
determine eligibility for benefits and therefore the Court must apply a
deferential standard of review in evaluating the Defendant’s denial of the
Plaintiff’s claim for benefits. See [Dkt. #45]. As the Court noted in its prior
Order, the plan expressly reserved its discretionary authority to interpret
the plan and policy. The plan stated that “First Reliance Standard Life

17

Insurance Company shall serve as the claims review fiduciary with respect
to the insurance policy and the Plan. The claims review fiduciary has the
discretionary authority to interpret the Plan and the insurance policy and to
determine eligibility for benefits.” (AR 75).
In addition, courts have held that where a plan administrator both
evaluates and pays benefits claims out of its own pocket, the administrator
has a conflict of interest that must be taken into account in a court’s review
under an arbitrary and capricious standard. The conflict of interest
analysis was articulated by the Supreme Court in Glenn. Metropolitan Life
Ins. Co. v. Glenn., 128 S.Ct. 2343, 2349 (2008) (ERISA “permits a person
denied benefits under an employee benefit plan to challenge that denial in
federal court … Often the entity that administers the plan, such as an
employer or an insurance company, both determines whether an employee
is eligible for benefits and pays benefits out of its own pocket. We here
decide that this dual role creates a conflict of interest; that a reviewing
court should consider that conflict as a factor in determining whether the
plan administrator has abused its discretion in denying benefits; and that
the significance of the factor will depend upon the circumstances of the
particular case.”) (citations omitted).
Here, FRSLIC concedes in its Motion for Summary Judgment that it
both evaluated and paid benefits claims out of its own pocket and therefore
the Court must take into account and weigh FRSLIC’s conflict of interest in
determining whether there was an abuse of discretion. See [Dkt. # 34, Def.

18

Mem. at 6-10]. A plaintiff's showing that the administrator's conflict of
interest affected the choice of a reasonable interpretation is only one of
“several different considerations” that judges must take into account when
“review[ing] the lawfulness of benefit denials.” McCauley, 551 at 133. The
Court must “determine how heavily to weight the conflict of interest thus
identified, considering such circumstances as whether procedural
safeguards are in place that abate the risk, ‘perhaps to the vanishing
point.’” Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 138 (2d
Cir.2010) (citation omitted). The Second Circuit has further instructed that:
The weight properly accorded a Glenn conflict varies in direct
proportion to the likelihood that [the conflict] affected the benefits
decision. ‘The conflict ... 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 the vanishing point) where the administrator has taken
active steps to reduce potential bias and to 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.’
Durakovic, 609 F.3d at 139-140 (quoting Glenn, 128 S.Ct. at 2351).
Analysis of FRSLIC’s Denial of Rhodes’s Physical Disability Claim
Rhodes argues that her persistent lower back condition prevents her
from performing the material duties of any occupation and that she is
unable to work a sedentary occupation contrary to FRSLIC’s determination.
Under the plan, since Rhodes had already received 24 months of disability
payments in order to qualify for additional benefits she must demonstrate
that she is totally disabled meaning that she cannot perform the material

19

duties of any occupation her education, training or experience will
reasonably allow. (AR 72).
i.

FRSLIC’s denial of Rhodes’s disability claim is supported by
substantial evidence and not affected by its conflict of interest

From a review of the evidence in the administrative record, FRSLIC’s
determination that Rhodes could perform the material duties of a sedentary
occupation is supported by substantial evidence. FRSLIC relied on both
the medical records and reports of Rhodes’s three treating physicians, the
independent medical evaluation by Dr. Chagnon, and the REA to reach a
reasoned conclusion that Rhodes does not meet the plan’s definition of
total disability.
In addition, there is no evidence that FRSLIC’s conflict of interest as
plan administrator and payor influenced its decision to deny Rhode’s
benefits for her physical disability claim. The decision to deny benefits
does not appear to be motivated by self-interest or by a desire to avoid
paying benefits but is rather based entirely on a reasoned assessment of
the evidence in the administrative record including the evidence provided
by both Rhodes’s treating physicians and by an independent medical
examination.
First, none of the evidence in the record from Rhodes’s treating
orthopedists suggests that Rhodes would be unable to perform a
sedentary occupation. The first medical report that Rhodes submitted in
support of her original disability claim in February of 2007 indicated that

20

Dr. Kerr, Rhodes’s then treating physician, expected Rhodes to make a
“full recovery” in “5-6” months. (AR 576).
Rhodes’s treating orthopedist Dr. Kruger reported on November 11,
2008 that he did not believe Rhodes’s health issues were “organically
related to her spine” and that her MRI results did “not reveal significant
pathology.” (AR 370-371). He further noted that Rhodes suffered from
depression and suggested that “[p]erhaps this is somization of significant
underlying psychiatric disease” as “it is not clear to me that this disability
is related to an orthopedic problem with her spine.” (Id.).
Lastly in November 2009, Rhodes submitted additional
documentation from a third treating orthopedist, Dr. Mohr, in support of her
physical disability claim. (AR 251-252). While Dr. Mohr’s evaluation did
indicate that Rhodes suffered from “axial low back pain with a radicular
component that is very severe” he also noted that Rhodes was not in
distress and did not have any deficit of reflex or strength. Dr. Mohr also
concluded that Rhodes’s degenerative disease is otherwise mild
throughout. (Id.). Dr. Mohr’s evaluation does not opine on her ability to
work nor is there any information provided that would suggest that Rhodes
could not perform the material duties of a sedentary occupation.
Rhodes also included with this documentation from Dr. Mohr a
“return to work/school” form dated November 9, 2009 indicating that
Rhodes should not return to work for an additional eight months. (AR 253).
The form does not reference the type of work Rhodes would perform if she

21

returned and does not state that she cannot execute the movements listed
therein or perform any work ever. It was therefore not arbitrary and
capricious to conclude that the “return to work/school” form was not
credible evidence of work impairment that Rhodes was totally disabled as
defined by the Plan. The other records submitted by Rhodes further
support FRSLIC’s conclusion. Neither Dr. Kerr, Dr. Kruger, nor Dr. Mohr
opined that Rhodes could not perform any work and their opinions
undermine any probative value of the return to work/school form. A
reasonable mind viewing just the evidence in the record from Rhodes’s
treating physicians could conclude that Rhodes was not unable to perform
the material duties of a sedentary occupation.
Moreover, FRSLIC also conducted a REA based on its internal
reviews of the documentation in Rhodes file from her treating physicians
which found that Rhodes was able to perform a sedentary occupation.
FRSLIC also retained Dr. Chagnon to conduct an IME. Dr. Chagnon is the
only physician who the records states reviewed all of Rhodes’s files,
including all of the MRI's performed on Rhodes since 2006. Based on his
comprehensive review, he reached the conclusion that Rhodes was
capable of sitting, standing and walking "frequently" and therefore could
perform the material duties of a sedentary occupation. (AR 227-233). The
evidence provided by Dr. Mohr and Rhodes’s other treating physicians
together with the report from Dr. Chagnon constitute substantial evidence
supporting FRSLIC’s denial of Rhodes’s disability benefits.

22

Lastly, there is no evidence in the record which suggests that
FRSLIC was inappropriately influenced by its conflict of interest as plan
administrator and payor considering the substantial evidence in the record
from Rhodes’s own treating physicians which support the determination
that Rhodes could perform the material duties of a sedentary occupation.
This conclusion is further supported by FRSLIC’s sua sponte suggestion
that Rhodes might qualify for a disability benefits based on her mental
health condition and its re-examination of its denial of her disability claim.
The Court will now address Rhodes’s specific claims which are indicative
of the existence of management checks to detect and rectify inaccurate
decisions.
ii.

FRSLIC did not arbitrarily rely of Dr. Kruger’s evaluation over
other medical documentation

Rhodes argues that FRLSIC arbitrarily relied on Dr. Kruger's
evaluation in light of other medical opinions that contradict his evaluation
to support her physical disability claim that FRSLIC’s denial of her
disability benefits was arbitrary and capricious. [Dkt. #35, Pl. Mem. of Law
in Objection to the Def. Mot. for Summ. J. 8]. Rhodes relies primarily on
Dr. Mohr's evaluation and the "return to work/school" form to demonstrate
that she was “physically unable to perform the duties of any occupation."
[Dkt. #36, Pl. Mot. For Cross Summ. J. 2]. As stated above, Dr. Mohr did not
opine that Rhodes was totally disabled. Moreover, there was substantial
evidence in the record including the records of Drs. Kerr, Kruger, and

23

Chagnon to support the conclusion that Rhodes had not established that
she was totally disabled.
iii.

FRSLIC did not arbitrarily conclude that a sedentary
occupation would require Rhodes to sit for long periods of
time which she is unable to do

Rhodes argues that her chronic back condition makes it impossible
for her to sit for long periods of time and contends that sedentary work will
require her to sit for six to eight hours of the day continuously which she is
unable to do. There is simply no support for such a statement. As FRSLIC
concluded, the sedentary occupations it identified that Rhodes is capable
of performing do not require that Rhodes sit for six to eight hours a day
straight but would allow for Rhodes to stand, stretch, and walk around as
well. The reasonableness of FRSLIC’s determination is also underscored
by the fact that Rhodes worked in a sedentary occupation at the Robert
Half Agency and ING from December 12, 2007 through June 10, 2008 while
receiving disability benefits from FRSLIC. (AR 285).
Further, the REA which identified occupations that Rhodes is
capable of performing, defines sedentary as "sitting most of the time, but
may involve walking or standing for brief periods of time. Jobs are
sedentary if walking and standing are required only occasionally."
Occasionally is defined as "[a]ctivity or condition exists up to 1/3 of the
time.” (See AR 204-205). Dr. Chagnon’s IME concluded that Rhodes could
both sit for 24%-66%of an eight hour work day as well as stand for 24%66% of an eight hour work of an eight hour work day. (AR 232).

24

Therefore a reasonable mind would accept such evidence as
adequate to support the conclusion that Rhodes would be able to perform
a sedentary occupation and it was not arbitrary and capricious for FRSLIC
to conclude based on the information provided by Dr. Chagnon and her
treating physicians that Rhodes could perform a sedentary occupation.
iv.

FRSLIC did not arbitrarily conclude that Rhodes’s prior job
with Barnes & Noble was not sedentary

Rhodes further argues that her prior job at Barnes & Noble should
be considered a sedentary job and contends that the description of several
of the sedentary jobs FRSLIC identified matches the description of her
prior job of merchandising assistant as provided by Barnes & Noble. (AR
683). Rhodes reasons that if FRSLIC concluded that she was unable to
perform the material duties of her prior Barnes & Noble job that she
likewise cannot perform the duties of these sedentary jobs since the
description of those jobs match. Rhodes relies on the job description
provided by Barnes & Noble as the basis for her argument. (AR 683).
However, the Barnes & Noble job description does not describe the level of
activity or physical exertion required for the job. The mere fact that the
description of her prior job does not reference any physical requirements
does not support an inference that the job should be considered sedentary
especially where the record suggests otherwise.
In addition, Rhodes’s argument is belied by the evidence in the
record submitted by Rhodes herself which indicates that her prior job at
Barnes & Noble was not sedentary in nature but rather required light

25

exertion. On July 17, 2008, Rhodes appealed FRLSIC’s denial of her
disability benefits which was based on FRLSIC’s conclusion that Rhodes’s
employment as a secretary at the Robert Half Agency and then at ING
precluded a finding of total disability. Rhodes indicated in her appeal that
at Barnes & Noble she had to frequently lift heavy boxes whereas at the
Robert Half Agency and at ING she "primarily answered emails, scheduled
meetings and handled expense and travel paperwork." (AR 475). Based on
the information Rhodes herself provided, FRSLIC’s concluded that her job
at Barnes & Noble should be considered “light” work while her job at ING
should be considered “sedentary.” (AR 467). Therefore, Rhodes’s herself
has presented evidence that her position at Barnes & Noble is not
equivalent to the other sedentary occupations that FRSLIC identified even
though the description of her Barnes & Noble position did not expressly
refer to the light lifting duties that was required by the job. Accordingly, it
was not arbitrary and capricious for FRLSIC to conclude that Rhodes could
perform a sedentary occupation but could not perform her prior occupation
at Barnes & Noble.
v.

It was not an abuse of discretion for FRSLIC to not consider
Rhodes Social Security Disability Insurance Claim

Lastly, Rhodes argues that her total disability is demonstrated by the
subsequent decision rendered in her social security disability insurance
(“SSDI”) claim and that it was an abuse of discretion not to consider the
SSDI decision. However, Rhodes’s never provided to FRSLIC the SSDI
decision and therefore it was not a part of the administrative record that

26

FRSLIC considered when it made its determination regarding Rhodes’s
disability claim. In the Second Circuit, “a district court’s review under the
arbitrary and capricious standard is limited to the administrative record.”
Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995); see also
Lopes v. First Unum Life Ins. Co., No.09-cv-2642, 2011 WL 1239899, at *9
(E.D.N.Y. March 30, 2011) (“Plaintiff's receipt of SSDI was not known to
Defendant at any point during Plaintiff's initial claim determination, appeal
or post-appeal, and the Court, therefore, will not consider it.”).
Moreover assuming arguendo that the SSDI decision was a part of
the administrative record, FRLISC would not be required to “accord special
deference to the determination of the Social Security Administration.”
Durakovic v. Building Serv. 32 BJ Pension Fund, 609 F.3d 133, 141 (2d Cir.
2010) (citation omitted); see also Alto v. Hartford Life Ins. Co.,
No.09Civ07763,, 2011 WL 1330863, at *5 n.1 (March 31, 2011) (“plan
administrators are not considered ‘arbitrary or capricious’ for failing to
reach the same disability determination as the SSA, nor are they required
to do so by ERISA. Hartford properly identifies its reasons for arriving at
the opposite conclusion.”); Lopes, 2011 WL 1239899, at *9 (“Finally, even if
Plaintiff is receiving SSDI for physical injury, the Court concludes that
Defendant's decision nonetheless is supported by substantial evidence in
the record. While a Social Security Administration (‘SSA’) determination
that a claimant is eligible for SSDI is ‘one piece of evidence,’ it is ‘far from
determinative.’”) (citations omitted). It was not an abuse of discretion not

27

to consider evidence Rhodes never presented and which was not
controlling.
Analysis of FRSLIC’s Denial of Rhodes’s Mental Health Disability
Claim
i.

FRSLIC’s September 10, 2010 decision to deny mental health
benefits was arbitrary and capricious

Rhodes argues that FRSLIC’s determination that she had received
the maximum benefits recoverable for a mental health disorder under the
plan was arbitrary and capricious. FRSLIC’s policy limits the amount of
disability benefits a participant can obtain due in whole or in part to a
mental disability to a 24-month period. The plan in relevant part provides:
"Monthly Benefits for Total Disability caused by or contributed to by mental
or nervous disorders will not be payable beyond an aggregate lifetime
maximum duration of twenty-four (24) months.” (AR 82).
On September 10, 2010, FRSLIC notified Rhodes that based on the
independent medical examination by Dr. Zeman that it had determined that
Rhodes’s “diagnosis of chronic low back pain and Major Depressive
Disorder presented concurrently as of December 2005, and therefore, the
benefits payable in connection with “Rhodes’s psychiatric claim should be
limited to the 24-month period covering July 6, 2007 until July 6, 2009
following the date benefits became effective.” (AR 8). In particular, Rhodes
argues that it was arbitrary and capricious to conclude that her mental
health disorder presented concurrently as of December 2005 and
accordingly the determination that her mental health disorder was a

28

contributing factor to her “total disability” since 2005 was not supported by
substantial evidence in the record.
The only evidence that FRSLIC relies on to support its conclusion
that Rhodes’s mental health disorder contributed to her “total disability”
since 2005 is Dr. Zeman’s independent medical examination in which Dr.
Zeman reported that “the psychiatric component of Ms. Rhodes’ illness
became a contributing factor to her overall medical condition beginning in
2005.” (AR 118). It appears that the sole basis for Dr. Zeman’s conclusion
that her mental health disorder was contributing to her “total disability”
since 2005 is Rhodes’s own statements made to Dr. Zeman during the
course of the evaluation that took place in 2010. Dr. Zeman reported that
Rhodes stated that, “since 2005, my pain and depression have destroyed
my well being and my life.” (AR 116). Dr. Zeman further noted in his report
that Rhodes described her “physical and emotional symptomatology,
which began by her account in 2005.” (AR 115). Rhodes contends that
she never told Dr. Zeman that her depression began in 2005. [Dkt. #36, Pl.
Mot for Cross Summ. J. 3]. A reasonable mind would not accept that
Rhodes’s alleged statement made to Dr. Zeman during the course of her
psychiatric evaluation was adequate to support a conclusion that her
mental disorder was a contributing factor to her total disability since 2005.
In light of Rhodes’s medical history, one would have to probe further to
determine the onset of, the progression and the severity of Rhodes’s
mental illness.

29

Moreover after reviewing the entire content of Dr. Zeman’s report, Dr.
Zeman’s conclusion that “the psychiatric component of Ms. Rhodes’
illness became a contributing factor to her overall medical condition
beginning in 2005” is contradicted by his other observations and
conclusions provided in the report. (AR 118). For example, Dr. Zeman also
concluded in the report that “Ms. Rhodes has been psychiatrically impaired
as of February 5, 2007. Her status has not changed since that time, and
she continues to be severely impaired by major depression.” (AR 118).
Several paragraphs later, he separately concludes that “[i]n my opinion, the
degree of her impairment…have significantly impeded her useful work
function as of January 12, 2010.” Lastly, Dr. Zeman opines that Rhodes
“has been and remains totally disabled from work function since June
2008.” (Id.). Considering the contradicting dates and conflicting
conclusions regarding when Rhodes’s mental disorder began and when
her mental disorder was severe enough to impair her, it was arbitrary and
capricious for FRSLIC to adopt the earliest date provided in Dr. Zeman’s
report.
The arbitrary nature of FRSLIC's decision to adopt the earliest date in
Dr. Zeman’s report is underscored by the fact that the earlier dates that Dr.
Zeman provided do not appear to be related to Rhodes’s work function and
therefore do not appear to reflect a determination that Rhodes’s mental
disorder contributed to her “total disability” as defined under the plan.
Under the plan, FRSLIC is obligated to make a determination of when a

30

participant’s mental disorder is severe enough that it contributes to the
participant’s inability to perform the material duties of his or her
occupation or any occupation. It is possible that at any given time a mental
disorder is not severe enough to be a contributing factor to a participant’s
ability to work. In Dr. Zeman’s report, the only date in which he explicitly
refers to the start of her work impairment as a result of her mental health
disorder is his conclusion that Rhodes was “totally disabled from work
function since June 2008.” (AR 118).
There is no other evidence in the record that would corroborate the
conclusion that Rhodes’s mental disorder contributed to her “total
disability” since 2005 beyond Rhodes’s purported statements to Dr.
Zeman. Rhodes first began psychiatric treatment with Dr. Lorenzo and
Walker in September of 2008 and prior to that time Rhodes had no history
of psychiatric treatment. Accordingly, there are no psychiatric or other
records to substantiate a conclusion that Rhodes’s mental disorder was
severe enough to contribute to her total disability prior to the fall of 2008
when she first sought treatment for her depression. Therefore, FRSLIC’s
conclusion that Rhodes’s mental health disorder contributed to her total
disability since 2005 is not supported by substantial evidence.
The arbitrary and capricious nature of FRSLIC’s determination that
Rhodes’s mental health disorder contributed to her total disability since
2005 is further highlighted by FRSLIC’s prior decision on February 20, 2009
where it determined that Rhodes’s depression was not severe enough to

31

support her being totally disabled based on either her mental condition or a
combination of her mental and physical conditions as defined by her
policy. While FRSLIC subsequently reversed their February 20, 2009
decision it did not clearly state the reasons for that reversal. It is unclear
whether the reversal is related to Rhodes’s mental health claim or lower
back pain claim and whether it involved a redetermination of the Plaintiff's
mental and physical health claim. (AR 288). However, the fact that FRSLIC
concluded that in February of 2009 that Rhodes’s mental health disorder
was not contributing to her total disability but then concluded in
September of 2010 that her mental health disorder had contributed to her
total disability since 2005 is incongruous on its face. Further, FRSLIC
makes no effort to explain why its conclusion in February of 2009 was
erroneous in light of the evidence in the record.
ii.

FRSLIC’s prior decisions regarding Rhodes’s mental health
claim demonstrate a pattern of arbitrary and capricious
decision making

Prior to FRSLIC’s September 10, 2010 decision denying Rhodes’s
mental health disability benefits which is the subject of the current action,
FRSLIC made two prior determinations regarding Rhodes’s mental health
claim. First on February 20, 2009 as discussed above and secondly on
April 20, 2010. While the substance of the September 10, 2010 decision and
not the two prior decisions is directly before the Court, an examination of
each decision demonstrates a pattern of arbitrary and capricious decision
making with respect to Rhodes’s mental health claim.

32

FRSLIC’s February 20, 2009 decision finding that Rhodes’s mental
disorder was not severe enough to support Rhodes being totally disabled
was itself likely arbitrary and capricious and not supported by substantial
evidence. In the documentation provided from Dr. Lorenzo, he reported
that sometime in September 2008 Rhodes was brought to the emergency
room in a state of emotional crisis and referred to him for an evaluation.
On December 12, 2008, Dr. Lorenzo indicated that Rhodes is “unable to
return to work due to persistent depression.” (AR 360-362). Further,
Rhodes’s therapist Walker did not recommend that Rhodes return to work.
(AR 379). Therefore, Rhodes’s treating physician and therapist concluded
that her depression was severe enough to render her totally disabled
beginning in December of 2008.
FRSLIC disregarded both Dr. Lorenzo and Walker’s conclusions and
determined that Rhodes’s depression was not severe since Dr. Lorenzo
had not scheduled a timely follow-up examination and had not changed
Rhodes’s dosage of Prozac. FRSLIC in particular reasoned that “if your
symptoms were moderate to severe enough to continue to impair work,
than it would be reasonable to assess you would continue to need
medication adjustments until your symptoms had improved.” (AR 337-338).
This justification ignores the fact that in addition to Dr. Lorenzo, Rhodes
was being treated weekly by her therapist Walker. Dr. Lorenzo, as a
psychiatrist was primarily responsible for prescribing medication to
supplement Walker’s psychotherapy treatment. (AR 380). Both the

33

psychiatrist and therapist work in concert to ensure that a patient’s mental
health needs are met, thus regular appointments with Dr. Lorenzo were not
required. Therefore, FRSLIC’s justification and conclusion that Rhodes’s
depression was not severe was based on partial assessments and was
arbitrary and capricious because it was not supported by substantial
evidence in the record and not based on all of the evidence in the record.
In addition, FRSLIC’s April 20, 2010 decision finding that Rhodes’s
mental disorder was not severe enough to support Rhodes being totally
disabled after January 12, 2010 was also likely arbitrary and capricious and
not supported by substantial evidence. (AR 176-177). FRSLIC concluded
that the documentation from Dr. Lorenzo and Walker did not demonstrate
that after January 12, 2010 Rhodes’s depression was severe enough to
continue to preclude work. In particular, FRSLIC reasoned that since Dr.
Lorenzo prescribed Rhodes Zoloft on January 12, 2010, “Dr. Lorenzo’s
notes do not note any paranoid or psychotic thinking and do demonstrate
depressive symptoms have improved on Zoloft.” (AR 177). However after
reviewing the documentation provided by Dr. Lorenzo, the Court is unable
to find where in Dr. Lorenzo’s notes he indicated that Rhodes’s symptoms
had improved on Zoloft. Moreover, Dr. Lorenzo’s records do not indicate
that Rhodes ever suffered from paranoid or psychotic thinking. Therefore,
FRSLIC’s conclusion that Rhodes’s mental disorder improved on January
12, 2010 is not supported by substantial evidence.
iii.

FRSLIC’s decision regarding Rhodes’s mental health claim
reflects its conflict of interest

34

FRSLIC argues that its decision was not affected by its conflict of
interest and points to the fact that it hired an independent medical
examiner as a procedural safeguard to abate the risk of its conflict of
interest. While courts have found that the failure to conduct an
independent medical examination is one factor which can help
demonstrate an administrator’s conflict of interest, the Court does not find
the fact that FRSLIC did conduct an independent medical examination to be
dispositive as FRSLIC’s reliance on Dr. Zeman’s independent medical
evaluation was itself arbitrary and capricious and reflective of its conflict of
interest. See Strope v. Unum Provident Corp., No.06-CV-628C, 2010 WL
1257917, at *7 (W.D.N.Y. 2010) (“the failure to order a timely IME or have a
physician review a medical file has been described as a ‘procedural
irregularity’ that is a factor to be considered in determining whether an
administrator abused its discretion in denying a claim for benefits.”). The
typical scenario facing courts in ERISA reviews is where the opinions of
the independent medical examiner conflicts with the opinions of the
insureds’ treating physicians. However, Dr. Zeman’s opinion does not
contradict Dr. Lorenzo or Walker’s opinions and instead as discussed
above FRSLIC arbitrarily interpreted Dr. Zeman’s report to suit its own
financial interests.
In addition, FRSLIC has not demonstrated that it took any other
procedural safeguards such as walling off claims administrators or
imposing management checks. Further, the record indicates a history of

35

erroneous denials and faulty administration of Rhodes’s claims. This is
particularly true of her mental health claims. At every instance where
FRSLIC has reviewed and assessed Rhodes’ mental health claim, FRSLIC’s
decision making has not been supported by substantial evidence and has
been arbitrary and capricious. While the reviews and reversals are
indicative of FRSLIC’s efforts to assure fairness, these efforts do not
obviate the absence of substantial evidence to support its ultimate
decision.
FRSLIC’s decision to adopt the earliest date mentioned in Dr.
Zeman’s report as opposed to the later dates mentioned in his report or the
date in which Rhodes began psychiatric treatment aligned with its financial
interest. If FRSLIC had adopted Dr. Zeman’s suggestion that her work
ability was impaired as of June 2008, then Rhodes would be entitled to
eleven months of additional disability under the plan. If FRSLIC had
adopted September 2008, the date when Rhodes first began psychiatric
treatment, then Rhodes would be entitled to fourteen months of additional
disability under the plan. By adopting the earliest date provided in Dr.
Zeman’s report which was not supported by or corroborated by any other
evidence in the record, FRSLIC was able to avoid paying additional
disability benefits under the plan to Rhodes. These facts suggest that
FRSLIC decision to rely on the earliest date provided by Dr. Zeman was
motivated by its self-interest or by a desire to avoid paying benefits. Even
assuming that FRSLIC had significant procedural safeguards in place and

36

that its decision making wasn’t influenced by its conflict of interest, the
Court would still find that FRSLIC’s denial of Rhodes’s mental health claim
was not supported by substantial evidence as explained above.
FRSLIC has therefore failed to make a reasoned determination
supported by substantial evidence of when Rhodes’s depression
contributed to her “total disability” as defined by the plan. Instead,
FRSLIC made an arbitrary and capricious determination influenced by its
conflict of interest. A reasoned determination supported by substantial
evidence would have taken into an account an assessment of the severity
of her depression as well as the severity of Rhodes’s physical disability,
which FRSLIC has not done. The mere fact that Rhodes suffered from
depression is not sufficient to demonstrate that her depression contributed
to her total disability. It is possible that Rhodes’s depression was so mild
that it did not contribute to her work impairment. FRSLIC must therefore
determine based on the evidence in the record when Rhodes’s depression
was severe enough that it contributed to her inability to perform the
material duties of her occupation or of any occupation. Accordingly, the
Court remands Rhodes’s mental health disability claim to FRSLIC. FRSLIC
is ordered to reassess Rhodes’s mental health disability claim in light of
the Court’s Order.
Conclusion
Based upon the above reasoning, the Defendant’s [Dkt. #34] motion
for summary judgment is GRANTED IN PART AND DENIED IN PART and

37

Plaintiff’s [Dkt. #36] cross motion for summary judgment is GRANTED IN
PART AND DENIED IN PART. The Court remands Rhodes’s mental health
claim and FRSLIC is ordered to reassess Rhodes’s mental health claim in
light of the Court’s Order and issue a revised decision to Rhodes by
January 31, 2012. The Clerk is directed to administratively close the matter
without prejudice to reopening on or before April 30, 2012 by Rhodes if she
wishes to assert a challenge to FRSLIC’s revised decision on her mental
health claim.
IT IS SO ORDERED.

________/s/__________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: December 29, 2011

38