Hightower v. Hartford Life & Accident Insurance Company

Filing 43

ORDER granting 34 Motion for Summary Judgment; denying 39 Motion for Summary Judgment. Please see attached Order for details. Signed by Judge Robert N. Chatigny on 9/30/2013. (Rickevicius, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RANDALL HIGHTOWER,
Plaintiff,

:
:

V.

:

HARTFORD LIFE & ACCIDENT
INSURANCE CO.,
Defendant.

:
:
:

CASE No. 3:11-cv-1619(RNC)

RULING AND ORDER
Plaintiff, Randall Hightower, brings this action under the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. § 1331 et seq, against the claims fiduciary of his
employer's disability insurance plan, Hartford Life and Accident
Insurance Company ("Hartford").

Plaintiff alleges that

Hartford's termination of his long-term disability benefits and
failure to provide him with certain documents relevant to his
claim both violate ERISA.

Hartford has filed a motion for

summary judgment (ECF No. 34), arguing that its administrative
determination was reasonable and supported by substantial
evidence in the administrative record and that ERISA's disclosure
requirement does not apply because it is not a "plan
administrator" as defined by the statute.

Plaintiff has filed a

cross-motion for summary judgment (ECF No. 39).

For the reasons

that follow, Hartford's motion is granted and plaintiff's motion
is denied.

1

I.

Background
In opposing Hartford's motion for summary judgment,

plaintiff has failed to file a Local Rule 56(a)2 Statement.
Accordingly, the material facts set forth in the defendant's
Local Rule 56(a)1 Statement (ECF No. 35), taken from the
administrative record, are deemed admitted.

See Sanchez v. Univ.

of Conn. Health Care, 292 F. Supp. 2d 385, 390 (D. Conn. 2003).
A. The Plan
Plaintiff began working for the American International Group
("AIG") in 2006 as a Workman's Compensation Claims Reviewer.
This occupation required plaintiff to sit for seven hours, stand
for half an hour, and walk for one hour, with the opportunity to
alternate sitting and standing as needed.
("AR") 422.

Administrative Record

AIG employees are covered by a Group Long Term

Disability Plan ("the Plan") that provides long-term disability
("LTD") benefits under an insurance policy issued to AIG by
Hartford.

See AR 461-500.

named in the Plan.

AR 494.

AIG is the sole "Plan Administrator"
The Plan designates Hartford as its

"claims fiduciary" and grants Hartford "full discretion and
authority to determine eligibility for benefits and to construe
and interpret [the Plan's] terms and provisions."

Id.

The Plan states, in pertinent part: "Disability or Disabled
means . . . you are prevented from performing one or more of the
Essential Duties of Your Occupation, and as a result your Current

2

Monthly Earnings are less than 80% of your Indexed Pre-disability
earnings."

AR 481.

The Plan requires employees to provide

documentation of their disability that is "satisfactory to
[Hartford]" and authorizes Hartford to require employees to be
examined by a medical professional of Hartford's choice to assist
with Hartford's disability determination.

AR 477.

The Plan also

provides that Hartford "will terminate benefit payments on the
first to occur of: 1. the date [the employee is] no longer
disabled as defined; . . . [or] 7. the date no further benefits
are payable under any provision in [the Plan] that limits
benefits duration."

AR 469.

Plan benefits payable for a mental

illness are limited to "a total of 24 months for all such
Disabilities during [the insured's] lifetime."
B.

Id.

Plaintiff's Initial Disability Claim
In May 2008, plaintiff stopped working for AIG when he was

hospitalized for a mental illness.

AR 443.

Plaintiff's treating

physician, Dr. Ellyssa Eror, diagnosed him with bipolar disorder
and schizoaffective disorder.

AR 436.

Plaintiff applied for

disability benefits in June 2008 and Hartford approved his claim
in November of that year stating "[w]ith your benefits commencing
on November 10, 2008, no benefits will be payable beyond November
9, 2010."

AR 132.

On January 9, 2009, Dr. Eror wrote that plaintiff was
"socially and cognitively impaired for any work activity," but

3

that no other medical condition impacted on his ability to
function.

AR 413.

In January 2010, Hartford received an

Attending Physician's Statement ("APS") from Dr. Eror noting that
plaintiff was reporting back pain, AR 355, as well as a report
dated August 2009 from a neurosurgeon, Dr. Kvam, stating that
plaintiff had been referred by Dr. Eror with "significant
localized low back pain."

AR 359.

The Kvam report also stated

that plaintiff was a "fit, muscular . . . man" and that although
"the patient was prescribed physical therapy, [he] evidently did
not attend.

He found the co-pay prohibitive."

Id.

On May 19, 2010, Hartford again notified plaintiff that the
twenty-four month limitation period for his mental illness
disability benefits would be reached on November 9 and advised
him to "immediately provide [Hartford] with any evidence of [a]
disabling physical condition" that would entitle him to
additional benefits.

AR 100.

Hartford also notified plaintiff

of his right to administratively appeal the termination of his
benefits.

Id.

Plaintiff challenged Hartford's 24-month limitation on
mental illness benefits in a letter dated May 27, 2010, arguing
that "a new federal law and mandate has been passed to arrest
such practices."

AR 346-47.

Plaintiff did not mention any

physical disability or submit any new medical evidence.

See id.

Treating the letter as an administrative appeal of the impending

4

termination of plaintiff's benefits, Hartford reviewed his claim
and issued an appeal decision on June 22, 2010, reaffirming that
the policy limitation "will have been met as of 11/09/10 and no
further benefits will be payable after that date."

AR 97.

On

September 20, 2010, plaintiff wrote to Hartford to contest its
"capricious appeal decision" and characterized his disability
claim as "due to [his] L5/S1 hernia" and "chronic ongoing back
pain."

AR 222.

In this letter, plaintiff referred Hartford to

another of his attending physicians, Dr. Fejos, "to request any
medical information [necessary] . . . to continue [his] claim."
Id.
In a letter dated September 29, 2010, Hartford informed
plaintiff that "Section 502(a) of [ERISA] entitles [employees] to
one appeal of termination of benefits" and declined to consider
his back pain claim on the grounds that his appeal had already
been processed.

AR 95.

In response, plaintiff provided Hartford

with a magnetic resonance imaging ("MRI") report dated October 3,
2010, and a letter he had sent to Dr. Eror noting a referral to a
surgeon, Dr. Spero, for a possible discectomy and claiming that
Hartford had prematurely processed his appeal and overlooked his
"medical diagnosis for the disc herniation[] and chronic pain
preventing [him] from being able to sit, stand or walk for any
significant amount of time over the past 2 years."

AR 223.

Hartford's claim management report from November 3, 2010 notes

5

that the "MRI submitted by [claimant] indicates positive
findings" of "disc herniation" "but [does] not provide physical
restrictions and or limitations preventing sed[entary]/light
level work."

AR 38.

Hartford sent plaintiff another letter on

November 4, 2010, reiterating its position that he had exhausted
the opportunity to appeal the termination of his benefits.

See

AR 95.
Plaintiff persisted in challenging the termination of his
benefits, informing a supervisor in Hartford's claim management
department that he wanted his benefits reinstated and noting that
he had contacted the Department of Labor and would contact his
attorney.

AR 38.

On November 9, 2010, the day plaintiff's

mental illness disability benefits expired, Hartford agreed to
gather further evidence regarding plaintiff's back condition and
review his disability claim.

AR 37, 93.

Hartford requested

medical records from Dr. Fejos and Dr. Spero and agreed to
continue plaintiff's benefits under a reservation of rights while
it investigated his claim.
C.

AR 92.

Investigation Into Plaintiff's Physical Disability Claim
The administrative record indicates that plaintiff first

went to Dr. Fejos on July 19, 2010 for an evaluation of low back
pain he claimed originated from an injury in January 2009.
233.

AR

Dr. Fejos's intake notes show that plaintiff had an MRI on

October 1, 2009, which revealed evidence of a small L5-S1 disc

6

herniation.

Id.

Dr. Fejos recommended a trial of epidural

steroid injections.

Id.

Dr. Fejos's case notes from August 24,

2010, report no improvement following two steroid injections and
recommend physical therapy for plaintiff, noting that "he has not
had [physical therapy] in the past for his symptoms."

AR 231.

Dr. Fejos's notes state that plaintiff reported his low back pain
to be "currently a 7 out of 10" on the pain scale, but that he
was "in no acute distress" and that he would be referred to Dr.
Spero for a surgical consultation.

AR 232-33.

An APS of

functionality prepared by a physician's assistant ("PA") in Dr.
Fejos's office, Tammy Gaines, concluded that in a general
workplace environment plaintiff could sit, stand and walk for one
hour at a time each, for a total of two hours a day each;
lift/carry up to ten pounds frequently; occasionally bend at the
waist; with no restrictions on handling, fingering or reaching
above shoulder or waist level.

AR 247.

Dr. Spero's intake notes from October 27, 2010 state that
plaintiff claimed he injured his back in January 2009 while
lifting weights.

AR 216.

Dr. Spero diagnosed plaintiff with a

herniated disc as well as lumbar spondylosis and radiculitis and
recommended that plaintiff undergo a "left L5-S1 discectomy."
AR 218-219.

Dr. Spero advised the plaintiff that a discectomy

would significantly reduce his pain, but plaintiff never
underwent surgery.

See AR 172-73.

7

On January 4, 2011, Hartford asked plaintiff to sign a form
authorizing it to obtain his medical information in connection
with an independent medical examination ("IME").

AR 88.

Plaintiff sent a letter in response stating that, "due to the
Schizo-effective disorder and the paranoia associated with the
disorder; I will not submit [to] an overreaching medical
authorization from The Hartford due to the sensitive nature of my
psychological treatment with my Therapist."

AR 194.

In this

letter, plaintiff also requested a "full copy of my entire file
including all internal communications."

Id.

On January 27, 2011, Hartford wrote to plaintiff informing
him that it was rejecting his claim for additional disability
benefits.

See AR 81.

Hartford noted that the Job Description of

plaintiff's occupation is sedentary, requiring the plaintiff to
"sit, stand and walk with the ability to alternate positions as
needed[,] frequently handle (gross motor) and constantly finger
(fine motor)."

AR84.

Summarizing the medical evidence from Dr.

Fejos, Dr. Spero and PA Gaines, and noting plaintiff's refusal to
attend an independent medical examination, Hartford informed
plaintiff that "while you have complaints of back pain with some
findings, it is not documented to be of a severity to preclude
you from performing a sedentary occupation with the ability to
change positions as needed."

AR 85.

Concluding that the record

did not show that plaintiff was "unable to perform the Essential

8

Duties of [his] Occupation on a full time basis as of 11/10/10"
Hartford notified plaintiff that it was terminating his claim for
ongoing benefits.

Id.

Hartford notified plaintiff he could

perfect his claim "by providing the necessary written
Authorization as soon as possible" or "appeal our decision
without providing the information."
D.

Id.

Plaintiff's Administrative Appeal
On April 29, 2011, plaintiff administratively appealed

Hartford's termination of benefits.

The appeal argued that

"Hartford already has sufficient information in its possession to
warrant a continuation of the claimant's benefits notwithstanding
an IME," AR 189, and referenced and included a copy of a July 19,
2010 letter from Dr. Eror stating that plaintiff "continues to be
totally medically disabled due to his chronic low back pain."
207.

AR

On May 5, 2011, plaintiff sent Hartford an APS completed by

Dr. Eror on May 3, 2011, in which Dr. Eror concluded that
plaintiff could sit, stand and walk for less than an hour at a
time each and less than two hours each in a day.

AR 178-187.

Dr. Eror concluded that plaintiff could not work in a sedentary
occupation and that "without surgical intervention prognosis is
poor."

AR 179.

Dr. Eror's report also stated that she had been

treating plaintiff's back pain since January of 2009 and that
plaintiff's back pain was not caused "by trauma or other known or
identifiable injury."

AR 178-179.

9

Hartford forwarded plaintiff's claim to its appeal unit and
began re-evaluating plaintiff's eligibility for LTD benefits by
obtaining independent reviews of the medical evidence from
Deborah Schneider, MD, board certified in Physical Medicine and
Rehabilitation, and Charles Kershner, MD, board certified in
Orthopedic Surgery.

In considering plaintiff's work capacity due

to his back condition as of November 10, 2010, the date plaintiff
no longer qualified for benefits for his mental illness, Drs.
Schneider and Kershner reviewed the claim file, including all
medical records, and spoke with Drs. Eror, Fejos and Spero.

The

independent medical reviewers issued a Peer File Review report on
June 6, 2011.

See AR 164-173.

In their report, both doctors found plaintiff's decision not
to pursue surgery to be significant.

Dr Schneider noted that

"the lack of follow up regarding surgery when offered, without an
explanation or contraindication, suggests an ability to pursue
functional activities without surgery."

AR 167.

Dr. Kershner

noted that "[t]he claimant does have a legitimate medical
problem, that is, a herniated lumbrosacral disc on the left [but]
for some reason he has chosen not to have the surgery recommended
and this could be from a variety of reasons. . . . One obvious
conclusion, however, is that the pain and discomfort he was
experiencing is not sufficient for him to seek a surgical
remedy."

AR 171-72.

In the "Consensus Opinion" section of Dr.

10

Schneider's report, she notes that "In Dr. Kershner's experience,
patients are seen all the time with ruptured discs.

If they are

hurting badly enough, they have surgery and if not, they are able
to perform sedentary work for eight hours with work
accommodations which will accommodate the disc herniation."
173.

AR

The doctors also relied on PA Gaines's APS stating that

plaintiff can work "two hours per day walking, two hours per day
standing, [and] two hours per day sitting which totals to a six
hour work day," AR 165, Dr. Fejos's statements that plaintiff had
a normal gait and was able to climb on the examination table
without assistance, AR 168, and Dr. Eror's statement that
plaintiff was "physically . . . very fit" and "in good physical
condition except for his back."

AR 171.

After summarizing the

record, both Dr. Schneider and Dr. Kershner concluded that
plaintiff had the capacity for full-time sedentary work up to
eight hours a day, provided he had a ten pound weight lifting
restriction with a two or three minute stretch break and the
opportunity to change position every hour.

AR 173.

On June 14, 2011, Hartford prepared an occupation analysis
of the physical demands of plaintiff's job as a claim reviewer at
AIG and as performed in the national economy.

See AR 162.

The

analysis concluded that plaintiff's job was classified as
"sedentary with prolonged sitting," id., and the Hartford claim
agent who prepared the analysis opined that the job allowed for a

11

"two to three minute[] stretch break every hour."

AR 159.

On

the basis of the claim file, the independent medical reviews and
the occupational analysis, Hartford sent plaintiff a letter on
June 15, 2011, notifying him that it was upholding its
determination to terminate his LTD benefits.

See AR 64-68.

The

letter concluded: "Based on our review, the preponderance of the
evidence supports that [you are] capable of performing Any
Occupation and Your Occupation as defined by the Policy and the
decision to terminate the claim was correct. As such, except for
Mental Illness, [you do] not meet the definition of Disability,
and the decision to limit [the] benefit payment duration due to
the Disabling mental condition was correct."

AR 67.

On August 18, 2011, Hartford sent plaintiff a copy of the
administrative record along with a letter informing him that
"[t]o the extent that you have requested information which does
not exist, or which is not relevant to the claim according to the
pertinent regulations, it is not enclosed."

AR 63.

On October 20, 2011 plaintiff filed this action claiming
that Hartford had wrongfully denied benefits in violation of
ERISA § 502(a)(1)(B), 29 U.S.C. § 1332(a)(1)(B), and failed to
provide requested documentation as required by ERISA § 502(c)(1),
29 U.S.C. § 1332(c)(1).

On the basis of the administrative

record, the parties have filed cross-motions for summary
judgment.

12

II.
A.

Legal Standard
Summary Judgment Standard
"Summary judgment is appropriate only where the parties'

submissions show that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law."

Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82

(2d Cir. 2009).

The moving party bears the burden of showing the

absence of any genuine dispute as to a material fact.
Transp.

United

Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809

(2d Cir. 2009).
B.

ERISA Standard
Section 502(a)(1)(B) of ERISA "permits a person denied

benefits under an employee benefit plan to challenge that denial
in federal court."

Metropolitan Life Ins. Co. v. Glenn, 554 U.S.

105, 128 (2008) (citing 29 U.S.C. 1132(a)(1)(B)).

When a benefit

plan "grants the administrator discretionary authority to
determine eligibility benefits, a deferential standard of review
is appropriate."

McCauley v. First Unum Life Ins. Co., 551 F.3d

126, 132 (2d Cir. 2008) (citing Glenn, 554 U.S. at 111)).

Under

this deferential standard, the administrator's denial of benefits
may not be overturned unless it was "arbitrary and capricious,
meaning without reason, unsupported by substantial evidence or
erroneous as a matter of law."
omitted).

Id. (internal quotation marks

"Substantial evidence is such evidence that a

13

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) (internal quotation marks omitted); see also Hobson, 574
F.3d at 89 ("[T]he question for this court is not whether the
insurer made the correct decision but whether [it] had a
reasonable basis for the decision that it made." (internal
quotation marks omitted)); Pagan v. NYNEX Pension Plan, 52 F.3d
438, 441 (2d Cir. 1995) ("This scope of review is narrow; thus we
are not free to substitute our own judgment for that of the . . .
[insurer] as if we were considering the issue of eligibility
anew.").

In reviewing an administrator's determination under

this standard, "courts are required to limit their review to the
administrative record."

Miller v. United Welfare Fund, 72 F.3d

1066, 1071 (2d Cir. 1995).
III.
A.

Discussion
Hartford's Denial of Plaintiff's LTD Benefits
The Plan grants Hartford "full discretion and authority to

determine eligibility for benefits and to construe and interpret
the terms and provisions of the Policy."

AR 494.

The parties agree that this language vests discretionary
authority in Hartford sufficient to trigger deferential review.
See Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243,

14

251 (2d Cir. 1999).

Accordingly, plaintiff bears the burden of

proving, by a preponderance of the evidence, that Hartford’s
determination was arbitrary and capricious.

See Paese v.

Hartford Life Accident Ins. Co., 449 F.3d 435, 441 (2d Cir.
2006).
In plaintiff's papers, he makes two distinct arguments in
support of his contention that Hartford's decision to terminate
his benefits was arbitrary and capricious: (1) that Hartford was
operating under an inherent and actual conflict of interest; and
(2) that Hartford's determination was unreasonable and not
supported by substantial evidence because Hartford ignored or
misstated the opinions of plaintiff's treating physicians and
relied instead on unsupported conclusions of the independent
medical reviewers.
1.

No Actual Conflict of Interest

"[A] plan under which an administrator both evaluates and
pays benefits claims creates the kind of conflict of interest
that courts must take into account and weigh as a factor in
determining whether there was an abuse of discretion, but does
not make de novo review appropriate."
(citing Glenn, 554 U.S. at 112).

McCauley, 551 F.3d at 133

The weight assigned to the

alleged conflict will differ "according to the evidence
presented."

Id.

For example:

[W]here circumstances suggest a higher likelihood that [the
conflict] affected the benefits decision, including, but not
15

limited to, cases where an insurance company administrator
has a history of biased claims administration, the conflict
of interest should prove more important (perhaps of great
importance). 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.
Id. (internal quotation marks omitted).

"No weight is given to a

conflict in the absence of any evidence that the conflict
actually affected the administrator’s decision."

Durakovic v.

Building Service 32 BJ Pension Fund, 609 F.3d 133, 140 (2d Cir.
2010).
In support of his argument that Hartford denied his claim
due to a conflict of interest, plaintiff states that Hartford
"abrogated its duty as a fiduciary and abused its discretion" by
prematurely treating his May 27, 2010 letter as an appeal and
closing his file without considering evidence it had on record of
his back pain or allowing plaintiff to submit additional
evidence.

See Pl.'s Mot. Summ. J. at 13.

However, it is

undisputed that Hartford eventually reopened plaintiff's claim to
consider such evidence and that "Hartford maintains a separate
Appeal Unit for the consideration of claims that have been denied
by the Claims Department . . . charged with making an independent
assessment of the claim based on the relevant policy provisions
and all of the evidence in the claim file."

16

AR 72.

Courts have

considered similar measures to be sufficient to cure a structural
conflict of interest.

See Bendik v. Hartford Life Ins. Co., 2010

WL 2730465, at *5 (S.D.N.Y. 2010), aff’d, 2011 WL 4091073 (2d
Cir. 2011) ("Hartford demonstrated that it took significant steps
to promote accuracy.

First, Hartford initially awarded short-

term disability benefits to [plaintiff], a decision that was
against its financial interest.

Hartford also assigned multiple

individuals to review the recommendation, which promotes accuracy
of the administrator's review process."); Fortune v. Grp. Long
Term Disability Plan for Employees of Keyspan Corp., 637 F. Supp.
2d 132, 144 (E.D.N.Y. 2009) aff'd, 391 F. App'x 74 (2d Cir. 2010)
("Hartford has also created a check against the arbitrary denial
of claims and sought to promote accuracy by maintaining a
separate appeal unit that independently considers claims that
were denied upon initial review.").

In view of the steps

Hartford took to promote accuracy, the Court concludes that the
record does not support a finding that an actual conflict likely
influenced Hartford's decision to terminate benefits, and that
Hartford's structural conflict should be given no weight in the
Court's review of that decision.
2.

Hartford's Determination Was Supported By Substantial
Evidence in the Record

Plaintiff argues that "Hartford did not have a reasonable
basis for its decision in the face of substantial objective
medical evidence that was presented and contained in the
17

administrative record."

Pl.'s Mot. Summ. J. at 16.

In support

of this position, plaintiff argues that Hartford ignored evidence
of the debilitating pain caused by his back injury, such as Dr.
Eror's opinion that plaintiff's "constant, persistent back

. . .

pain could impair his concentration and cognitive abilities if he
is required to work a sedentary position 8 hours per day 40 hours
a week," AR 178, and Dr. Fejos's opinion that plaintiff had a
constant pain level at all times of 6 to 8 on a scale of 10.
202.

AR

Plaintiff also points to Dr. Eror's May 3, 2011 APS

documenting that his pain was evidenced by objective indicia such
as "MRI, tenderness and decreased range of motion on exam."

AR

187.
"[A]dministrators are not obliged to accord special
deference to the opinions of treating physicians."

Black &

Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003).

When

assessing the opinions of treating physicians, "it [is] not
unreasonable for the administrator to conclude that the only
material reason the treating physicians were reaching their
diagnoses was based on their acceptance of plaintiff's subjective
complaints: an acceptance more or less required of treating
physicians, but by no means required of the administrator."
Maniatty v. Unumprovident Corp., 218 F. Supp. 2d 500, 504
(S.D.N.Y. 2002) aff'd, 62 F. App'x 413 (2d Cir. 2003).
an administrator must give "sufficient attention to [the

Although

18

claimant's] subjective complaints" see Thurber v. Aetna Life Ins.
Co., 712 F.3d 654, 660 (2d Cir. 2013), the administrator is not
required to automatically accept such subjective complaints in
the absence of objective evidence of disability.

See Hobson, 574

F.3d at 88 ("[I]t is not unreasonable for ERISA plan
administrators to accord weight to objective evidence that a
claimant’s medical ailments are debilitating in order to guard
against fraudulent or unsupported claims.").

In Maniatty, for

example, even though an MRI showed that the plaintiff had a
"small recurrent disc herniation" and plaintiff submitted a
report from her treating physician that "plaintiff's chronic back
pain is disabling her and she is unable to return to work," the
court upheld the administrator's conclusion that "the purely
objective evidence indicated that plaintiff should be able to
work an eight-hour day, provided she changed positions and
periodically stood and walked, rather than just sit."

218 F.

Supp. 2d at 503-04.
Here, the administrative record reflects that Hartford
considered and rejected plaintiff's complaints of pain, as
reported by his treating physicians, essentially because "the
pain and discomfort [plaintiff] was experiencing [was] not
sufficient for him to seek a surgical remedy."

AR 170.

According to Dr. Kershner's experience, if patients "are hurting
badly enough, they have the surgery and if not, they are able to

19

perform sedentary work for eight hours with work accommodation."
AR 173.

Plaintiff argues that this conclusion was "made with no

supporting objective evidence" because the record "reflects
testimony that [plaintiff] did in fact state 'why' he was unable
to go through surgery at the time[:] he could not afford the copay."

Pl.'s Mot. Summ. J. at 12.

The page plaintiff cites in

support of this statement, however, states only that plaintiff
did not attend "physical therapy" because he found the co-pay
prohibitive.

AR 359.

This evidence is insufficient to show that

Hartford's conclusion was arbitrary and capricious.

The record

reflects that plaintiff had little treatment for his back pain
from January 2009, when he claims he injured it, to June 2010,
when he had the first of two epidural steroid injections.
231.

See AR

In addition, Dr. Kvam stated that plaintiff was "fit [and]

muscular" in August 2009, AR 359, and Dr. Eror stated that
plaintiff "physically was very fit" in May 2011, AR 171,
statements that are hard to reconcile with months of functional
incapacity caused by severe pain.

In light of this objective

evidence, coupled with the fact that plaintiff declined surgery
even though Dr. Spero told him it would eliminate much of his
pain, Hartford's conclusion was not unreasonable.1

1

Plaintiff seems to contend that his lumbar disc herniation,
the existence of which is undisputed, makes the termination of
his benefits unreasonable. As seen in Maniatty, however, a
claimant's herniated disc, without more, does not preclude a
finding that the plaintiff was not disabled as defined by the
20

Plaintiff also argues that Hartford misinterpreted Dr.
Eror's and PA Gaines's hourly work restrictions by using a
"cumulative method of calculation".

Pl.'s Mot. Summ. J. at 18.

For example, in the December 14, 2010 APS, in the row marked
"Total hours/day" PA Gaines wrote "2" in each of the "sit",
"stand" and "walk" columns to represent the number of hours
plaintiff could perform these activities in a general workplace
environment.

AR 247.

The independent medical reviewers

interpreted this to mean that plaintiff could perform two hours
of each activity each day for a total of six hours.

See AR 165.

Plaintiff argues that the reviewers' interpretation is
unreasonable because "PA Gaines specifically stated that
[plaintiff] 'cannot sit, stand and walk for more than two hour
per day.'"

Pl.'s Mot. Summ. J. at 18.

In Dr. Eror's APS

completed May 3, 2011, there are conflicting representations of
plaintiff's functional capacities: the report notes "< 1" in each
column when asked the "number of hours at a time" plaintiff is
able to "sit", "stand" and "walk" "in a general workplace
environment", AR 181; "less than 2 hours" in each column when
asked how long plaintiff can "sit, stand and walk in an eight
hour work day (with normal breaks)", AR 182; and "1" in each
column when asked how long the plaintiff "can work without pain,
discomfort, swelling or any problems that could impair his

applicable benefits plan.

See 218 F. Supp. 2d at 503.
21

concentration or affect his judgment."

AR 184.

The documents

prepared by Dr. Eror and PA Gaines provide some support for
plaintiff's argument.

Even so, given the independent reviewers'

findings, Hartford could reasonably conclude that plaintiff was
able to work at his sedentary occupation for eight hours a day.
Plaintiff urges that Hartford's reliance on the opinions of
the independent reviewers is misplaced because they did not
conduct a physical examination.

An administrator's reliance on

independent Board-certified physicians is customary in evaluating
ERISA claims.

See Hobson, 574 F.3d at 90 ("MetLife did not abuse

its discretion by considering these trained physicians’ opinions
solely because they were selected, and presumably compensated, by
Met-Life.").
examined.

An administrator is not required to have a claimant

See id. ("[R]equiring the plan administrator to order

an [independent medical examination], despite the absence of
objective evidence supporting the applicant's claim for benefits,
risks casting doubt upon, and inhibiting, the commonplace
practice of doctors arriving at professional opinions after
reviewing medical files." (internal quotation marks omitted)).2
As plaintiff points to no medical evidence in the record calling
into question the reasonableness of the conclusions of Hartford's
independent medical reviewers, Hartford's reliance on their

2

This conclusion is reinforced by the evidence in the
administrative record that plaintiff refused to sign Hartford's
release authorizing an IME. See AR 194.
22

opinions was not arbitrary and capricious.

See Testa v. Hartford

Life Ins. Co., 2012 WL 1701332, at *1 (2d Cir. May 16, 2012)
("[T]hat Hartford chose to credit its own doctors over Testa’s
treating physicians is not, in and of itself, grounds for
reversing the determination.").
B.

Statutory Damages Under ERISA's Disclosure Requirement
Plaintiff seeks to recover under 29 U.S.C. § 1132(c)(1),

which provides, in pertinent part: "Any administrator . . . who
fails or refuses to comply with a request for any information
which such administrator is required by this subchapter to
furnish to a participant or beneficiary . . . may in the court’s
discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date of
such failure or refusal."

"The term 'administrator' means (i)

the person specifically so designated by the terms of the
instrument under which the plan is operated."
1002(16)(A).

29 U.S.C. §

Accordingly, "liability under [§ 1132(c)] is

clearly limited to plan 'administrators.'"

Towner v. CIGNA Life

Ins. Co. of New York, 419 F. Supp. 2d 172, 185 (D. Conn. 2006)
(citing Bergquist v. Aetna U.S. Healthcare, 289 F. Supp. 2d 400,
413 (S.D.N.Y. 2003)); see also Krauss v. Oxford Health Plans,
Inc., 418 F. Supp. 2d 416, 434 (S.D.N.Y. 2005) aff'd, 517 F.3d
614 (2d Cir. 2008) ("[N]ot all fiduciaries are subject to
disclosure requirements under § 1132(c); only plan administrators

23

are.").

Thus, even when insurers serve as claims administrators

and administer some elements of a plan as fiduciaries, if they
are not named as plan administrators they cannot be liable under
29 U.S.C. § 1132(c).

See Krauss, 418 F. Supp. 2d at 434 ("Absent

a specific declaration in Plan documents that an insurance
company is the administrator, this Court cannot infer coadministrator status.").
Despite Hartford's authority to determine benefit
eligibility under the Plan, it is undisputed that "[t]he Plan
expressly named AIG as Plan Administrator" and "Hartford is not a
Plan Administrator."

Def.'s Rule 56 Statement at ¶¶ 3,4.

As

such, Hartford cannot be liable for damages under 29 U.S.C. §
1132(c).
IV.

Conclusion
Accordingly, Hartford's motion for summary judgment (ECF No.

34) is granted and plaintiff's cross-motion for summary judgment
(ECF No. 39) is denied.
So ordered this 30th day of September 2013.
/s/ RNC
Robert N. Chatigny
United Stated District Judge

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