Realmuto v. Arrow Electronics, Inc. et al
Filing
43
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 7/24/2015. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARIO REALMUTO,
:
Plaintiff,
:
v.
:
Civil Action No. GLR-14-1386
LIFE INSURANCE COMPANY
OF NORTH AMERICA,
:
:
Defendant.
:
MEMORANDUM OPINION
Pending
before
the
Court
is
Plaintiff’s,
Mario
Realmuto,
Motion for Summary Judgment (ECF No. 32) and Defendant’s, Life
Insurance Company of North America (“LINA”), Motion for Summary
Judgment (ECF No. 34).1
hearing is necessary.
The issues have been fully briefed and no
See Local Rule 105.6 (D.Md. 2014).
For the
reasons given below, Realmuto’s Motion for Summary Judgment will be
denied and LINA’s Motion for Summary Judgment will be granted in
part and denied in part.
I.
BACKGROUND
Beginning in 1988, Realmuto was employed by Arrow Electronics,
Inc. (“Arrow”) as a staff accountant and was eventually promoted to
Financial Systems Manager / Account Finance Manager.
His duties
included staff management, providing around-the-clock support to
1
By stipulation approved by the Court on June 4, 2014,
Defendants Arrow Electronics, Inc. and Cigna Corporation were
voluntarily dismissed pursuant to the parties’ agreement that LINA
is the only proper party-defendant in the case. (ECF No. 10).
1
hundreds
of
worldwide
users,
significant
travel,
and
software
analysis and support.
Realmuto stopped working in May 2004 as a result of symptoms
associated with Charcot-Marie-Tooth (“CMT”) disease, Type IA; an
inherited
progressive
neurological
condition
with
no
curative
treatment, which causes slow weakening progression that starts at
the feet and progresses up the body.
symptoms of CMT in 1974, at age 18.
enjoyed
recreational
activities
Realmuto began to exhibit
He describes himself as having
through
his
thirties.
By
age
forty-four, however, he was wearing leg braces and by May 2004, at
age forty-eight, progression of the deformity in his feet, the
severity
of
performance
pain,
of
his
and
the
likelihood
occupational
duties
of
major
surgery
impossible.
made
Realmuto
reported difficulty walking, paresthesia, gait disturbance, muscle
weakness, pain of the legs and hands, muscle wasting of the legs
and hands, altered nerve sensations in the feet and legs, foot
deformity, severe fatigue, and limitations of functional capacity
and related physical and functional disabilities.
Realmuto was enrolled in Arrow’s long-term disability (“LTD”)
Plan and Group Disability Insurance Policy LK-030291 (collectively,
the
“Plan”),
which
was
issued
and
administered
by
LINA.
An
employee is entitled to LTD benefits under the Plan if he meets the
provided definition of disability.
inability:
2
“Disability” is defined as the
to perform all the material duties of his . . . regular
occupation, or solely due to Injury or Sickness, he . . .
is unable to earn more than 80% of his . . . Indexed
Covered Earnings; and after Disability Benefits have been
payable for 24 months, he . . . is unable to perform all
the material duties of any occupation for which he . . .
may reasonably become qualified based on education,
training or experience, or solely due to Injury or
Sickness, he . . . is unable to earn more than 80% of his
. . . Indexed Covered Earnings
(Administrative
Record
[“A.R.”]
at
Realmuto-592).
The
Plan
provides that disability benefits terminate, inter alia, when the
insured is no longer disabled, (A.R. at Realmuto-599); and requires
continued proof of disability for benefits to continue. (A.R. at
Realmuto-1180). Realmuto was approved for disability benefits under
the
Plan
(approval
beginning
notice
Realmuto-01116)
on
for
May
31,
2004.
short-term
(approval
(A.R.
disability);
notice
for
at
Realmuto-01116)
(see
also
long-term
A.R.
at
disability).
Realmuto was also approved for disability benefits by the Social
Security Administration (“SSA”) under the SSA rules effective May
24, 2004.
Pursuant
to
the
Plan,
however,
LINA
continued
to
updated medical records after its initial claim approval.
request
In 2011,
LINA claims manager, Kim Jackson, noted certain “red flags” in
Realmuto’s case file, which promoted her to refer the claim to
“Special
Investigations”
to
monitor
and
investigate
Realmuto’s
activities.
Between August 9 and August 12, 2011, 108 hours of
surveillance
video
was
taken
of
Realmuto.
The
video
depicted
Realmuto engaging in various physical activities including pushing
3
and pulling a lawn mower, trimming the edges of his lawn, using a
leaf blower, riding his bike while simultaneously holding his dog’s
leash, and playing a round of golf.
He performed these activities
fluidly, without leg braces, and without signs of any physical
limitation or restriction.
Based on the activities captured in the
surveillance video and a review of the medical information on file,
LINA determined that Realmuto sustained functionality that would
allow him to return to, at least, a sedentary occupation.
Realmuto-292-95).
(A.R. at
As a result, LINA terminated Realmuto’s LTD
benefits by letter of September 27, 2011. (Id.).
Realmuto appealed his benefits termination by letter dated
February
12,
2012.
medical
reports
by
(A.R.
Dr.
at
Realmuto-456-64).
Michael
Stanton,
He
Realmuto’s
referenced
treating
neurologist; Dr. Michael Foster, Realmuto’s primary care physician;
Drs. Adolf Flemister and Leon Root, Realmuto’s treating orthopedic
surgeons; and Dr. Buoye, Realmuto’s treating podiatrist, (see id.),
as evidence of his disability.
To assist in its review of the
appeal, LINA obtained an independent medical opinion by Dr. John
Mendez,
who
medicine.
document
functional
is
board
in
occupational
and
internal
Dr. Mendez concluded that the medical records failed to
any
significant
deficits
Realmuto-454-55).
including
certified
Dr.
from
measured
October
physical
13,
2011
limitations
forward.
(A.R.
or
at
Ultimately, after a thorough review of the claim
Mendez’s
report,
LINA
determined
that
Realmuto’s
subjectively reported physical limitations were not supported by
4
the evidence.
Thus, LINA denied Realmuto’s first appeal by letter
dated May 3, 2012.
On October 29, 2012, Realmuto filed a second appeal.
Realmuto-382-403).
thorough
review
(A.R. at
Upon the second appeal, LINA undertook another
of
the
claim
including
additional
comprehensive
diagnostic evaluations, pulmonary function tests, and vocational
assessments,
medical
submitted
record.
LINA
by
Realmuto
again
to
referred
further
the
supplement
matter
to
a
the
second
independent board certified internist, Dr. DeBerry.
Dr. DeBerry conducted a number of peer to peer telephone calls
with Realmuto’s treating physicians.
(See A.R. at Realmuto-365).
Of
with
Dr.
which
Dr.
significance
Realmuto’s
is
treating
a
conversation
neurologist,
in
Michael
Stanton
Stanton,
indicated
that the level of function described in Realmuto’s medical chart
was
not
based
on
objective
examination;
Realmuto’s subjective reporting.
rather,
was
based
(A.R. at Realmuto-368).
on
Further,
despite CMT being a progressive condition, Dr. Stanton could not
specify any measure of difference in Realmuto’s condition between
the
time
of
his
initial
treatment
and
the
present.
(Id.).
Finally, Dr. Stanton expressed surprise by the level of activity
depicted
in
the
surveillance
video.
(Id.).
After
a
thorough
review of the record, Dr. DeBerry opined that while the physical
limitations
and
restrictions
noted
in
the
medical
documentation
alone indicate that Realmuto would not be able to function even at
a sedentary occupation, the video revealed no presenting physical
5
limitations or functional deficit that would prevent Realmuto from
returning to work.
(A.R. at Realmuto-369).
Moreover, as part of its review of the claim and in response
to Realmuto’s request, LINA also conducted a transferrable skills
analysis.
(A.R.
at
Realmuto-355).
The
analysis
considered
Realmuto’s master’s degree in business and historical accounting
and managerial positions; and found him to possess mathematical and
computer
skills,
knowledge
to
design
financial
record-keeping
systems, estimate values, and plan, organize, and direct the work
of others.
that
(Id.).
Realmuto
Based on these skills, the analysis concluded
could
perform
at
least
two
positions—Manager,
Department and Manager, Office—that would meet his Indexed Covered
Earnings requirement.
(Id.).
Based on a complete review of the
Administrative Record, on February 14, 2013, LINA again upheld the
denial of Realmuto’s LTD claim. (A.R. at Realmuto-352).
On April 24, 2014, Realmuto brought this action under the
Employee
(“ERISA”),
Retirement
29
Income
U.S.C.
§
Security
1132(a)(1)(B)
Act
of
1974,
(2012),
as
seeking
amended
judicial
review of LINA’s determination that he does not qualify for LTD
benefits.
On January 30, 2015 and March 2, 2015, the parties moved
for summary judgment on the administrative record.
The Motions are
fully briefed and are ripe for disposition.
1.
Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must grant
summary judgment if the moving party demonstrates that there is no
6
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a).
In
reviewing a motion for summary judgment, the Court views the facts
in a light most favorable to the non-moving party.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).
Once a motion for summary judgment is properly made and supported,
the opposing party has the burden of showing that a genuine dispute
exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986).
“[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
Anderson, 477
U.S. at 247-48.
A “material fact” is a fact that might affect the outcome of a
party’s
case.
Id.
at
248;
JKC
Holding
Co.
v.
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
Wash.
Sports
Whether a fact
is considered to be “material” is determined by the substantive
law, and “[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment.”
Anderson, 477 U.S. at 248; Hooven-
Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A “genuine” issue concerning a “material” fact arises when the
evidence
is
sufficient
to
allow
a
reasonable
verdict in the nonmoving party’s favor.
jury
to
return
a
Anderson, 477 U.S. at 248.
Rule 56(c) requires the nonmoving party to go beyond the pleadings
7
and
by
its
own
affidavits,
or
by
the
depositions,
answers
to
interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.
Catrett, 477 U.S. 317, 324 (1986).
Celotex Corp. v.
The nonmoving party “cannot
create a genuine issue of material fact through mere speculation or
the building of one inference upon another.”
Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985).
The parties agree that the Court should review the denial of
benefits de novo since the plan does not give the administrator
discretionary authority to determine eligibility for benefits.
See
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)
(“[A] denial of benefits challenged under § 1132(a)(1)(B) is to be
reviewed under a de novo standard unless the benefit plan gives the
administrator
or
fiduciary
discretionary
authority
to
determine
eligibility for benefits or to construe the terms of the plan.”).
“The de novo standard of review allows the court to examine all of
the evidence in the record and decide whether or not the Plaintiff
is
totally
disabled
without
giving
any
deference
to
the
plan
administrator’s decision to deny or terminate disability benefits.”
Gluth v. Fed. Home Loan Mortgage Corp. Long-Term Disability Plan,
No. 1:11-CV-1126, 2013 WL 246897, at *4 (E.D.Va. Jan. 17, 2013)
aff’d, 548 F.App’x 73 (4th Cir. 2013).
2.
Analysis
Realmuto contends that the administrative record establishes
ample
medical
evidence
demonstrating
8
significant
physical
impairments that prevent him from performing even sedentary work;
thus, he argues, it is LINA’s burden of convincing the Court that
there was a dramatic change in his condition such that it was
justified
in
terminating
his
LTD
benefits.
Realmuto
does
not
dispute, however, that the Plan allowed LINA to “require continued
proof of [his] disability for benefits to continue.”
Realmuto-1180).
(A.R. at
Further, as a matter of law, LINA’s prior award of
benefits does not estop it from later terminating those benefits,
especially where it is presented with new and different evidence
than
was
before
it
at
the
time
it
initially
awarded
benefits.
Hensley v. Int'l Bus. Machines Corp., 123 F.App’x 534, 538 (4th
Cir. 2004).
Thus, the issue before the Court is not whether LINA
wrongfully terminated Realmuto’s LTD benefits; rather, the issue
before the Court is whether Realmuto was disabled as defined by the
Plan at the time LINA terminated his benefits in 2011.
Contrary
to
Realmuto’s
supposition
that
LINA
carries
the
burden of convincing the Court that there was a dramatic change in
his condition, it is Realmuto that carries the burden of submitting
enough
objectively
sufficient
evidence
disabled as defined by the Plan.
that
he
is
currently
See Horton v. Reliance Standard
Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998) (“A plaintiff
suing
under
[§
1132(a)(1)(B)]
bears
the
burden
of
proving
his
entitlement to contractual benefits.”); see also Farley v. Benefit
Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir. 1992) (concluding
that because the language at issue was governed by the benefits
9
section rather than by the exclusions section of the plan it was
Plaintiff’s burden to show his entitlement to the benefits).
Moreover,
disability,
because
any
the
dispute
Plan
over
required
why
LINA
continued
decided
to
proof
of
investigate
Realmuto’s original claim is not material to determining whether
LINA properly terminated his benefits under the Plan.
presented
with
surveillance
new
and
video,
it
different
was
evidence
reasonable
for
Upon being
captured
LINA
to
by
the
review
the
initial claim.
LINA conducted multiple reviews of Realmuto’s medical history.
Based on the activity depicted in the surveillance video combined
with a lack of objectively measured physical limitations noted in
the
medical
ability
history,
was
Multiple
more
board
LINA
determined
enhanced
certified
than
medical
was
that
Realmuto’s
originally
professionals
physical
represented.
concluded
that
Realmuto’s sustained functionality would allow him to return to a
sedentary occupation.
Because this meant that Realmuto no longer
fit the definition of disabled under the Plan, LINA came to a
reasonable
decision
to
terminate
Realmuto’s
LTD
disability
benefits.
Realmuto asserts that the opinions of his treating physicians
should
be
given
due
consideration
or
weight.
ERISA
does
not
require, however, that special deference be given to the opinions
of treating physicians.
538
U.S.
822,
825
Black & Decker Disability Plan v. Nord,
(2003).
Especially
10
considering
the
lack
of
objective functionality testing noted in the administrative record,
the surveillance video presents reliable evidence contradicting the
opinions of Realmuto’s treating physicians.
Nor does the Court owe any deference to findings by the SSA.
Elliott v. Sara Lee Corp., 190 F.3d 601, 607 (4th Cir. 1999).
Here, SSA’s decision to award benefits was made in 2004, prior to
LINA’s reconsideration of Realmuto’s claim in 2011.
Moreover, the
surveillance video and independent physicians’ opinions were not
available
or
considered
eligibility for benefits.
by
SSA
in
determining
Realmuto’s
Thus, the Court finds no reason to weigh
SSA’s disability determination any more favorably than the other
evidence before it.
Two board certified medical professionals have opined that
Realmuto’s activity in the surveillance video was inconsistent with
his
documented
medical
history
and
depicted
physical ability than was being represented.
own
treating
neurologist
indicated
that
a
more
enhanced
Further, Realmuto’s
his
assessment
of
Realmuto’s condition was not based on objective examination but on
subjective
reporting
and
expressed
surprise
by
the
level
of
activity depicted in the surveillance video.
Moreover, as part of its thorough review of the claim, LINA
also
conducted
a
transferrable
skills
analysis.
The
analysis
concluded that Realmuto could perform at least two positions that
11
would meet his Indexed Covered Earnings requirement.2
The positions
identified by LINA are mostly sedentary with some opportunity for
mobility
throughout
the
day.
Both
Realmuto
and
his
doctors
indicated that some movement and exercise would be helpful to his
condition.
Thus, the limited mobility required by a sedentary
position may actually serve to improve his condition or delay its
progression.
On
balance,
after
extensive
review
of
the
undisputed
administrative record, including the surveillance video, the Court
finds that the record does not support the subjectively reported
severity
of
Realmuto’s
condition
limitations and restrictions.
and
the
resulting
physical
The Court finds that the undisputed
Administrative Record supports the conclusion that he is able to
perform the material duties of at least two occupations that would
meet his Indexed Covered Earnings requirement and for which he is
reasonably qualified.
Realmuto cannot, therefore, as a matter of
law, meet his burden of establishing an entitlement to additional
LTD benefits because he does not meet the provided definition of
disability under the Plan.
Judgment
will
be
granted
Accordingly, LINA’s Motion for Summary
in
part.
Upon
consideration
of
LINA
request for attorneys’ fees and costs, the request will be denied.
2
Although he argues the merits of that analysis, Realmuto has
failed to submit any evidence disputing the results.
12
III. CONCLUSION
For the foregoing reasons, this Court will, by separate Order,
DENY Realmuto’s Motion for Summary Judgment (ECF No. 32) and GRANT
in part and DENY in part LINA’s Motion for Summary Judgment (ECF
No. 34).
Entered this 24th day of July, 2015
/s/
_____________________________
George L. Russell, III
United States District Judge
13
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