Foglia v. Reliance Standard Life Insurance Company
Filing
36
OPINION AND ORDER granting 25 Motion for summary judgment; denying 26 Motion for summary judgment; adopting and incorporating 33 Report and Recommendations. The Clerk shall enter judgment in favor of defendant and against plaintiff, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 9/11/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTOPHER FOGLIA,
Plaintiff,
v.
Case No:
RELIANCE
STANDARD
INSURANCE COMPANY,
2:17-cv-97-FtM-99MRM
LIFE
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #33), filed
July 24, 2018, recommending that defendant's Motion for Summary
Judgment (Doc. #25) be granted, and plaintiff's Motion for Summary
Judgment (Doc. #26) be denied. 1
Plaintiff filed Objections (Doc.
#34)
defendant
on
August
6,
2018,
and
filed
a
Response
in
Opposition (Doc. #35) on August 14, 2018.
I.
Defendant Reliance Standard Life Insurance Company (Reliance)
issued a group long-term disability (LTD) policy to Realogy Group,
LLC (Realogy), and plaintiff is a participant under the policy as
an employee of Realogy.
1
The LTD policy is governed by the Employee
Both motions were construed as motions for judgment on the
record based on a later filed motion correcting the titles. (Doc.
#33, p. 1, n.1.)
Retirement Income Security Act (ERISA), and administered by Matrix
Absence Management (Matrix).
Plaintiff stopped working as of
August 9, 2013, and became eligible for monthly payments as of
February 9, 2014.
(AR0232.) 2
Plaintiff last worked as the Vice
President of Realogy until acute liver failure and pancreatitis
secondary to his condition of HIV, and plaintiff was considered
unable to work as of August 13, 2013 due to symptoms of spontaneous
bleeding
from
his
mouth
and
nose,
difficulty
clotting,
uncontrollable bowel release, abdominal pain radiating to his
back,
vomiting,
swollen
legs
disorientation, and exhaustion.
the
first
24
month
benefit
and
feet,
(AR1878.)
period
night
sweats,
The payments covered
requiring
plaintiff
to
be
disabled from his “regular occupation.”
(AR0256.)
After that
period,
disability
from
plaintiff
occupation.”
is
required
to
show
“any
(AR0257.)
By letter dated March 31, 2016, Matrix notified plaintiff
that he no longer satisfied the definition of total disability,
and plaintiff’s claim of disability was denied.
(AR0298, AR0301.)
In October 2016, Reliance acknowledged counsel’s letter requesting
review of the adverse benefit determination.
(AR0305.)
Upon
review, Matrix notified plaintiff that he would be required to
2
The Court will reference documents in the administrative
record as “AR” followed by the number in the bottom right corner
of each page. (Doc. #18.)
- 2 -
undergo a Neuropsychological Evaluation, and review of the medical
evidence by an independent physician through an external vendor.
Additional updates followed.
(AR0307, AR0309, AR0311, AR0313.)
On February 2, 2017, after an independent review, the original
decision to terminate LTD benefits was found appropriate because
plaintiff failed to satisfy the policy’s definition of Total
Disability
from
conditions.
Any
Occupation
(AR0313, AR0314.)
with
regard
to
his
physical
Dr. Jeffrey B. Danzig, M.D., a
board certified Internal Medicine physician and Dr. Alejandro J.
Arias, Psy.D., a board certified in Neuropsychology conducted the
independent evaluations.
(AR0315.)
Plaintiff’s Fully Favorable
award by the Social Security Administration 3 was acknowledged, but
“the receipt of Social Security benefits does not guarantee the
issuance
of
LTD
Reliance
benefits,
notified
or
plaintiff
vice
that
versa.”
the
(AR0324-AR0325.)
original
decision
to
terminate LTD benefits by the Claims Department was appropriate.
(AR1876.)
II.
Plaintiff argues that defendant violated ERISA’s no-deference
review regulation, failed to give reasonable weight to plaintiff’s
evidence, and failed to provide its vocational personnel with all
relevant evidence.
The standard of review was accurately set
3
The Notice of Decision was issued on January 4, 2017.
(AR1850.)
- 3 -
forth by the Magistrate Judge, and the parties do not object to
the applicable steps 4.
(Doc. #33, p. 13.)
The parties also do
not object to the content of the medical records, or the diagnoses.
The Magistrate Judge found that Reliance “clearly states in
its letter” that it agrees with the independent assessments by Dr.
Danzig
and
Dr.
limitations.
Arias
concerning
plaintiff’s
restrictions
and
The Magistrate Judge found that the reference to
medical staff by Reliance “is clearly tethered to Reliance’s review
and consideration of the independent assessments.”
The Magistrate
Judge concluded that Reliance did not improperly afford deference
to the initial adverse benefit determination.
(Id., p. 17.)
The Magistrate Judge considered the medical record in light
of
plaintiff’s
argument
that
Reliance
discredited
plaintiff’s
treating physician and its own experts in reaching its decision as
to plaintiff’s ability to work.
Plaintiff’s treating physician
Dr. Duffy diagnosed plaintiff with HIV, Hepatitis C in remission,
end-stage liver disease, secondary syphilis, dumping syndrome,
encephalopathy
with
short-term
memory
loss,
thrombocytopenia
secondary to end-state liver disease, peripheral vascular disease,
renal insufficiency, endocrinopathy with hypertestosteronism, GI
bleed and sinusoid bleed, and severe lethargy.
4
(Id., p. 18.)
Plaintiff objects to the Magistrate Judge’s decision that
Reliance was not de novo wrong, but not the applicable law. (Doc.
#34, p. 12.)
- 4 -
Another treating physician, Dr. Myers, found plaintiff’s liver
disease was complicated by hepatic encephalopathy, which causes
confusion and fatigue.
to stop driving.
As a result, Dr. Myers advised plaintiff
Dr. Myers found plaintiff’s cirrhosis impaired
his ability to work because it causes confusion and difficulty
performing tasks requiring mental concentration.
Dr. Myers also
found plaintiff was subject to bleeding episodes.
19.)
(Id., pp. 18-
The Magistrate Judge noted that Reliance relied heavily on
Dr. Danzig’s opinion who in turn reviewed the treating physicians’
records, and the entire medical claim file.
The Magistrate Judge
found that Reliance weighed the evidence and found Dr. Danzig’s
opinions more persuasive, and there is no requirement to accord
special weight to the opinions of the treating physicians.
The
Magistrate Judge found that Reliance was not de novo wrong in
determining that plaintiff can perform sedentary work.
(Id., pp.
19-20.)
As to non-exertional limitations, the Magistrate Judge noted
that Dr. Duffy found plaintiff unable to work due to encephalopathy
with short-term memory loss and severe lethargy.
plaintiff’s
liver
disease
caused
fatigue
Dr. Myers found
and
his
hepatic
encephalopathy caused confusion and difficulty concentrating.
Danzig
found
that
plaintiff’s
cirrhosis
of
the
liver
Dr.
was
a
reasonable cause of fatigue and hepatic encephalopathy has been
clinically shown to present with fatigue and cognitive issues.
- 5 -
Dr. Danzig recommended the fatigue could be compensated by limiting
lifting, carrying, standing, and walking.
Dr.
Arias
assessed
plaintiff’s
emotional
and
cognitive
functioning finding plaintiff performed within an average range
with no significant impairment.
Dr. Arias completed a check box
form indicating areas where plaintiff was not limited, and thus
found no cognitive limitations.
The Magistrate Judge found that
Reliance relied on Dr. Arias’s conclusions, not the testing scores
in making its determination.
The Magistrate Judge found Reliance
was not de novo wrong in determining that plaintiff could perform
the sedentary occupations listed by Reliance.
The Magistrate Judge found that Reliance gave proper weight
to
the
Fully
Administration.
Favorable
The
decision
of
Magistrate
the
Judge
Social
also
Security
found
the
Administrative Law Judge’s decision was not dispositive of whether
plaintiff satisfied the terms of the policy for no occupation.
The Magistrate Judge found that social security cases apply a
different standard, and rely on vocational experts that have no
relevance in an ERISA case.
The Magistrate Judge found Reliance
was not de novo wrong in its consideration of the Social Security
decision.
The Magistrate Judge noted that it is uncontested that Ms.
Vroman, who conducted the REA, did so without the benefit of the
opinions of Dr. Danzig and Dr. Arias.
- 6 -
Ms. Vroman opined that
plaintiff could perform the jobs of Vice President and Contract
Administrator at the sedentary level, and the jobs of contract
specialist,
manager,
vehicle
leasing
and
representative, franchise at the light level.
rental,
and
sales
Plaintiff hired his
own Vocational Consultant, Linda Hayes, who also conducted an
analysis without the benefit of the opinions of Dr. Danzig and Dr.
Arias.
Ms. Hayes found that plaintiff’s prior work required a
high level of cognitive functioning and fell within the sedentary
exertional level.
Ms. Hayes found that plaintiff’s issues with
cognitive deficits, and memory and concentration issues would
limit plaintiff from performing the jobs listed in the REA.
The
Magistrate Judge found that Reliance was entitled to consider but
not rely on plaintiff’s vocational consultant because she did not
have all the medical evidence, and Drs. Arias and Danzig’s opinions
did not support her conclusion that plaintiff could not perform
sedentary work.
The Magistrate Judge found Reliance was not de
novo wrong.
The Magistrate Judge concluded that Reliance was not de novo
wrong, but further proceeded to the second and third steps to
determine if the decision was arbitrary and capricious.
The
parties agreed that the plan administrator had discretion in
reviewing plaintiff’s claims, so the Magistrate Judge moved onto
the issue of whether the decision was supported by reasonable
grounds.
The Magistrate Judge found that it was not unreasonable,
- 7 -
arbitrary, or capricious to give more weight to independent medical
providers.
Plaintiff argued a conflict of interest because of the high
value of the LTD benefits per month, but the Magistrate Judge noted
that a large amount of money alone is not enough.
The Magistrate
Judge found no bias by Reliance in its consideration of the Social
Security decision, or the vocational information.
The Magistrate
Judge concluded that the decision by Reliance was reasonable, and
it was not arbitrary and capricious.
III.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).
to
which
objection
is
made.”
28
U.S.C.
§
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th
Cong.,
§
2
(1976)).
The
district
judge
reviews
conclusions de novo, even in the absence of an objection.
- 8 -
legal
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
IV.
A. Deference and the REA
The Court agrees with the Magistrate Judge on the issue of
whether Reliance improperly afforded deference to the initial
adverse benefit determination.
The paragraph at issue does not
give explicit deference, but simply points out that independent
assessment is consistent with the past findings of medical staff:
In conclusion, we agree with Dr. Jeffrey
Danzig and Dr. Alejandro Arias’ independent
assessment of your client’s restrictions and
limitations, as their opinion reflects the
available medical information on file as well
as the prior opinion of our Medical Staff who
also opined your client was capable of
performing a minimum of sedentary work.
(AR1887.)
Plaintiff
also
objects
that
an
updated
Residual
Employability Analysis (REA) was not conducted, and therefore
Reliance deferred to the initial adverse determination that relied
on same.
Reliance responds that the regulation 5 provides that
appeal decision cannot give deference to the initial decision, but
5
On appeal of an adverse benefit determination, a plan is
not deemed to provide a “reasonable opportunity for a full and
fair review” unless the procedures “[p]rovide for a review that
does not afford deference to the initial adverse benefit
determination and that is conducted by an appropriate named
fiduciary of the plan who is neither the individual who made the
adverse benefit determination that is the subject of the appeal,
nor the subordinate of such individual.” 29 C.F.R. § 2560.5031(h)(3)(ii).
- 9 -
Reliance medical staff did not make the initial decision or author
the initial decision.
opinions.
Rather, the medical staff provided medical
Reliance further responds that a new REA was not
required because it already identified sedentary occupations, and
Reliance again concluded that plaintiff could perform full-time
sedentary work.
Plaintiff has not identified a legal basis for
requiring a new REA.
The objection is overruled.
B. Dr. Arias
Plaintiff objects that a conclusion of no impairment in
cognitive functioning is contradicted by Dr. Arias’s own evidence,
and Dr. Arias made a material misstatement as to plaintiff’s
processing
speed.
Recommendation
underlying
Plaintiff
disregarded
Dr.
Arias’
argues
that
“fundamental
opinion”
because
Neuropsychological
Report
Evaluation
and
inconsistencies
conclusions
unreliable data are unreliable conclusions.”
The
the
“based
on
(Doc. #34, p. 6.)
(AR1864)
includes
subjective background information provided by plaintiff, and a
list
of
all
the
medical
records
reviewed.
(AR1864-AR1869.)
Included in the record is a psychiatric evaluation performed on
September 18, 2014, by Dr. Clark, with a diagnostic impression of
“Cognitive disorder, not otherwise specified, Major depression,
single episode with psychotic features. Axis II: Deferred. Axis
III:
See
physical
exam.
Axis
IV:
Psychosocial
environmental
problems, unemployment and financial. Axis V Current GAF: 50.
- 10 -
Highest GAF in the past year: Unknown.”
(AR1867.)
Also included
is a complete adult psychological evaluation conducted on November
12, 2014, by Dr. Vandenberg who administered the Wechsler Adult
Intelligence
Scale
and
Memory
Scale
–
Fourth
Edition.
Dr.
Vandenberg’s diagnoses were mood disorder not otherwise specified,
cognitive disorder not otherwise specified, alcohol abuse in full
remission.
(AR1867-AR1868.)
Another
adult
psychological
evaluation was performed on June 10, 2015, by Dr. Chang.
(AR1868.)
The diagnoses were “Rule out Mild Neurocognitive disorder due to
multiple
etiologies,
Other
Specified
Depressive
disorder,
and
Generalized anxiety disorder, HIV positive, hepatitis, cirrhosis,
pancreatitis,
bradycardia,
mitral
prolapse, cardiac arrhythmia.”
work
progress
cognitively
notes
intact,
dated
20,
was
Arias
found
plaintiff
2016,
indicating
appropriate
plaintiff verbalized understanding.
Dr.
mitral
valve
Dr. Arias also reviewed social
July
judgment
regurgitation,
was
content,
to
he
and
(AR1869.)
was
cooperative
and
motivated
throughout the evaluation, and displayed good eye contact.
Arias
found
plaintiff’s
speech
and
language
skills
Dr.
were
substantive and grammatical, his mood was euthymic, and his affect
was appropriate to circumstances.
Plaintiff denied all visual,
tactile,
hallucinations,
olfactory,
and
auditory
oriented to time, person, and place.
- 11 -
(AR1869.)
and
he
was
Dr. Arias found plaintiff fell in the average range for verbal
comprehension, perceptual reasoning, Full Scale IQ, and working
memory, but in the low average range for processing speed.
Dr.
Arias found plaintiff’s immediate auditory attention, new verbal
learning, and immediate and delayed incidental nonverbal recall
were
average.
simulation
Plaintiff
and
was
malingering
also
and
evaluated
performed
for
attempts
well.
at
Plaintiff’s
conceptual reasoning and nonverbal abstract reasoning were both
low average.
(AR1870.)
Plaintiff’s verbal fluency, expressive
vocabulary, fund of information, and mental arithmetic were all
scored as average.
anxiety.
Dr. Arias found no significant depression or
(AR1871.)
Dr. Arias concluded that plaintiff had improvement in the
intellectual capacity as conducted in 2014, and as of February 9,
2016,
plaintiff’s
neurocognitive
complaints
had
not
substantiated with objective and verifiable test data.
been
Dr. Arias
found that plaintiff did not meet any DSM 5 diagnostic criteria,
and there was no objective or variable test data to indicate that
plaintiff could not perform full-time work without restrictions or
limitations.
(AR1872-AR1873.)
Dr. Arias also checked off “not
limited” for each of the functions on a form.
The
Court
finds
no
conclusions of Dr. Arias.
contradiction
in
(AR1874.)
the
testing
and
Although the processing speed was found
to be low average, all other relevant test results reflected
- 12 -
average results.
Therefore, concluding that plaintiff was not
limited is supported by the test results even if the processing
speed
was
stated
incorrectly
in
the
summary
section.
The
objection is overruled.
C. Residual Employability Analysis
Plaintiff objects that the REA relies on three occupations
with
the
higher
“light
exertional
level”
classification,
and
plaintiff can only perform the less demanding “sedentary duty”
classification.
Plaintiff objects that the REA was performed
prior to the medical expert opinions issuing, and without being
updated after the independent evaluations.
The REA listed occupational alternatives based on plaintiff’s
transferable skills to include two jobs at the sedentary exertion
level (Vice President and Contract Administrator) and three jobs
at the light exertion level (Contract Specialist, Manager, Vehicle
Leasing
(AR1550.)
and
Rental,
and
Sales
Representative,
Franchise).
Also included is a “Match List” generated by the OASYS
Job Match System listing the various occupations in the light and
sedentary positions.
(AR 1554.)
On review of the REA as well as
the independent opinions of Dr. Danzig and Dr. Arias, Reliance
concluded that plaintiff could only perform at a sedentary level
on a full-time consistent basis.
(AR0323.)
The Court agrees with
the Magistrate Judge that it was the independent assessment of Dr.
Danzig and Dr. Arias that led Reliance to conclude that plaintiff
- 13 -
could
perform
at
the
sedentary
level
containing options for light work.
regardless
of
the
REA
The objection is overruled.
D. Social Security Decision & Dr. Danzig
Plaintiff
consideration
objects
to
the
that
Reliance
Decision
failed
of
the
to
Social
Administration that plaintiff is totally disabled.
give
due
Security
Plaintiff
argues that Reliance relied on Dr. Danzig’s opinion even though
Dr. Danzig deferred on issues of neuropsychiatric impairment as
beyond his specialty.
Reliance acknowledged the Full Favorable award, but noted
that
the
ALJ
found
(AR0324-AR0325.)
plaintiff
Reliance
was
noted
capable
that
of
it
sedentary
reached
work.
the
same
conclusion as to the exertional level 6, but also noted that the
Social Security decision was not binding on Reliance and the
“receipt
of
Social
Security
benefits
does
issuance of LTD benefits, or vice versa.”
not
guarantee
(AR0325.)
the
Plaintiff
acknowledges that the Social Security decision is not binding on
a LTD case, and Reliance was entitled to find Dr. Danzig and Dr.
Arias more persuasive.
The objection is overruled.
Dr. Danzig stated “[W]hether or not his cognitive issues are
related to hepatic encephalopathy or to anxiety/depression is
6
The ALJ found that plaintiff had the residual functional
capacity to perform sedentary work, but that he was unable to
perform his past relevant work. (AR1856, AR1860.)
- 14 -
unclear and difficult to sort out.
What if any restrictions
[plaintiff] should have from a neuropsychiatric point of view is
out of my area of expertise.”
discount
the
condition
Peer
based
Review
on
the
(AR1812.)
There is no reason to
Report
as
to
plaintiff’s
deference
as
to
any
conditions that were covered by Dr. Arias.
physical
neuropsychiatric
The objection is
overruled.
E. Conflict of Interest
Plaintiff argues that Reliance’s decision was arbitrary and
capricious as a matter of law because the sedentary occupations
both require above average general learning and verbal ability and
Dr. Arias found plaintiff was only average.
Reliance
ignored
favorable
evidence
Plaintiff argues that
from
his
own
physicians, and unreasonably relied on consultants.
treating
Plaintiff
argues that Reliance’s decision was unreasonable in light of its
conflict of interest.
Plaintiff argues that Reliance disregarded
its own evidence, failed to give reasonable weight to plaintiff’s
evidence and the Social Security Decision, and failed to provide
its vocational specialist with all relevant medical evidence.
The Magistrate Judge found that Reliance relied on Dr. Arias’s
conclusion that there was no data supporting work restrictions,
rather than the testing scores themselves.
Finding
no
limitations,
Reliance
- 15 -
weighed
(Doc. #33, p. 22.)
the
evidence
and
concluded that plaintiff could work at a sedentary level.
The
objection is overruled.
Despite plaintiff’s argument that a conflict of interest
exists, there is nothing in the record to support such a finding.
Even plaintiff recognizes that Reliance was not required to give
greater
weight
to
a
treating
physician,
significance to the Social Security Decision.
13.)
Reliance
found
that
plaintiff’s
or
controlling
(Doc. #34, pp. 8,
Hepatitis
C
had
been
successfully treated with medication and is stable with no reported
medication
diagnosis
side
of
HIV
effects.
is
Reliance
stable
undetectable viral load.
on
found
that
medication
plaintiff’s
with
a
current
Reliance noted that psychological and
cardiac evaluations conducted in July 2016 were normal, and the
physical examinations conducted in 2016 were normal.
Reliance
also considered plaintiff’s left wrist pain and left shoulder pain
in concluding that the “medical records lack evidence to support
that his ongoing complaints warrant a physical or psychiatric Total
Disability
(AR0319.)
from
Any
Reliance
Occupation
rejected
the
beyond
February
conclusion
of
9,
2016.”
plaintiff’s
vocational specialist as unsupported by the medical records and
independent physician reviews.
(AR0324.)
Reliance considered
the “totality of the information” in the claim file in determining
that plaintiff was no longer eligible to receive further benefits.
- 16 -
Much of the remaining objections are comprised of legally
unsupported disagreement with the Magistrate Judge.
After a
careful and complete review of the findings and recommendations,
as well as the record in this case, the Court accepts the Report
and Recommendation of the Magistrate Judge, and overrules the
objections as set forth above.
Accordingly, it is now
ORDERED:
1. Plaintiff's Objections (Doc. #34) are overruled.
2. The Report and Recommendation (Doc. #33) is hereby adopted
and the findings incorporated herein.
3. Defendant's Motion for Summary Judgment (Doc. #25) is
granted.
4. Plaintiff's Motion for Summary Judgment (Doc. #26) is
denied.
5. The Clerk shall enter judgment in favor of defendant and
against plaintiff, terminate all deadlines and motions,
and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2018.
Copies: All Parties of Record
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11th
day
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