Rothman v. Office Environments of New England Health and Welfare Benefit Plan et al
Filing
33
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, 1) the defendants' motion for summary judgment (Docket No. 19 ) and plaintiff's request for discovery (Docket No. 24 ) are both DENIED; and 2) summary judgment is entered sua sponte in favor of the plaintiff. The Court finds that the plaintiff is entitled to long-term disability benefits for the period claimed, i.e., from June 18 through December 31, 2006, plus interest, costs and reasonable attorney's fees. Plaintiff shall submit her memorandum in support of specific damages on or before June 3, 2011. Defendants shall submit their response on or before June 24, 2011." (Duong, Diep)
United States District Court
District of Massachusetts
________________________________
)
ELLEN ROTHMAN,
)
Plaintiff,
)
)
v.
)
Civil Action No.
)
09-11473-NMG
OFFICE ENVIRONMENTS OF NEW
)
ENGLAND HEALTH & WELFARE BENEFIT )
PLAN, and THE PRUDENTIAL
)
INSURANCE COMPANY OF AMERICA,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
This case arises out of the denial of plaintiff Ellen
Rothman’s claim for long-term disability (“LTD”) benefits by the
defendants.
I.
Factual Background
Rothman was employed by Office Environments of New England,
LLC (“Office Environments”) to sell office furniture, audiovisual
technology, architectural systems and expert services to business
executives.
In 2005, she earned close to $250,000.
At all
relevant times, Rothman was enrolled in Office Environment’s
Health & Welfare Benefit Plan (“the Plan”), which was intended to
provide LTD benefits to qualified employees in the event of total
disability and which is subject to the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461.
-1-
On March 22, 2006, Rothman was hit and injured by a motor
vehicle that ran a stop sign at an intersection.
She suffered a
concussion and was diagnosed by her healthcare providers, Dr.
Steven Kanner and Dr. Marjorie Ross, with post-concussion
syndrome and injuries to her arm, leg and neck.
The Prudential
Insurance Company of America (“Prudential”) approved Rothman’s
short-term disability (“STD”) benefits through June 18, 2006 but
she was denied LTD benefits.
Rothman’s two internal appeals of
the denial of LTD benefits were unsuccessful.
Rothman’s medical records reveal that Dr. Ross, a
neurologist, first diagnosed Rothman with post-concussion (or
“post-concussive”) syndrome on April 11, 2006.
The symptoms of
post-concussion syndrome that Rothman experienced included
fatigue, headache, soreness, nausea, mood lability, memory loss,
blurry vision and mental fogginess.
In an assessment two days
later, Dr. Kanner, Rothman’s primary physician, wrote that
Rothman had “persistent post-concussion syndrome, gradually
improving” and reported that he encouraged Rothman to work parttime and to seek STD benefits.
On May 11, 2006, Dr. Kanner noted that Rothman still
suffered from persistent post-concussion syndrome and was “not
fit to work”.
Dr. Kanner stated that he was “quite confident
that she will fully get back to normal but that may take until
the summer time.”
At a June 1, 2006 appointment he noted that
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she was “[r]eally not functional yet” and “will need to go on
long-term disability quite appropriately in about two weeks.”
Rothman reported that she had gone on a vacation to Italy but
spent the entire time resting instead of touring.
On June 13,
2006, Dr. Ross noted that Rothman “continues to struggle with
cognitive difficulties and mood lability due to post-concussive
syndrome” but that mental status testing revealed that plaintiff
was alert, oriented, attentive and had normal memory and fund of
knowledge.
After Rothman’s LTD benefits were denied, Drs. Kanner and
Ross both opined that Rothman continued to suffer from postconcussion syndrome and was unable to return to work.
On August
17, 2006, Dr. Ross noted that Rothman still suffered from postconcussion syndrome and stated that she was “unable to work at
present” but no tests were run.
On October 6, 2006, Dr. Kanner
wrote to Prudential stating his position that Rothman was
incapable of returning to work at that time given the demanding
nature of her job.
He did not identify any testing that he had
done but explained that was because
it was not going to make any direct impact on our
treatment and also because it is time-consuming and
costly.
It was his opinion that Rothman had a “clear right to her
disability benefits”.
On December 12, 2006, Dr. Kanner wrote to Rothman’s employer
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asserting that Rothman would be ready to try returning to work in
January, although she was not “fully back to normal”.
returned to full-time work on January 22, 2007.
Rothman
On February 16,
2007, Dr. Kanner noted that Rothman was close to normal function.
On August 1, 2007, Dr, Kanner wrote to Prudential in support
of Rothman’s claim for LTD benefits.
He reported that he had
done a mental test on July 11, 2006 by talking with her about
Sodoku and found that she was still impaired.
Defendants point
out, however, that there are no treatment notes in the record
from July 11, 2006.
Dr. Kanner emphasized in his August, 2007
letter that post-concussion syndrome is a known syndrome and
Rothman’s case was well-documented.
He maintained that
Ms. Rothman’s cognitive impairment was perfectly
consistent with other patients I have seen and attended
to who had suffered similar substantial head injuries.
He concluded that Rothman was disabled and met Prudential’s
criteria for total disability for the entire calender year of
2006.
At Prudential’s request, on January 12, 2007, Dr. Margaret
O’Connor, a neurologist who is Board Certified in Clinical
Neuropsychology, performed an independent neurological exam of
Rothman for more than six hours.
At that time, Rothman stated
that she was “90% back to baseline in terms of energy and
cognitive efficiency.”
The parties are in agreement, however,
that Rothman did not qualify for LTD benefits after December 31,
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2006.
Also at Prudential’s request, on February 8, 2007, Dr.
Steven Lee McIntire, a Diplomate in Psychiatry and Neurology,
performed a review of Rothman’s medical records and noted that
there was no indication that she suffered head trauma or brain
abnormalities.
He concluded that there was no objective
indication that Rothman was functionally or cognitively impaired
after June 19, 2006.
On August 20, 2007, Dr. McIntire did a
second review of Rothman’s medical records, including Dr.
Kanner’s letters dated December 12, 2006 and August 1, 2007.
Dr.
McIntire stated that “Sudoku is not a standard and accepted
neurological test for making a cognitive diagnosis.”
In an effort to obtain LTD benefits, Rothman brings this
action alleging a violation of ERISA.
She claims that the
defendants’ denial of LTD benefits was without adequate
justification or supporting documentation and, therefore, was
arbitrary and capricious.
She seeks equitable relief as is
required to obtain such benefits under 29 U.S.C. §§ 1132(a)(1),
(a)(3) and (d)(2).
II.
Procedural History
Rothman filed her complaint in the Massachusetts Superior
Court Department for Suffolk County on June 22, 2009.
On
September 4, 2009, the case was removed to federal court by the
defendants.
A scheduling conference was held on April 23, 2010
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and the case was thereafter referred to Magistrate Judge Leo T.
Sorokin for discovery proceedings.
On December 28, 2010, the
defendants filed a motion for summary judgment which Rothman
timely opposed.
III. Legal Analysis
A.
Standard for Summary Judgment in ERISA Cases
In ERISA cases, the district court’s function resembles that
of an appellate court:
It does not take evidence, but, rather, evaluates the
reasonableness of an administrative determination in
light of the record compiled before the plan fiduciary.
Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002).
As such,
the non-moving party does not enjoy the inferences in its favor
that it would in an ordinary summary judgment analysis.
Orndorf
v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005).
The denial of benefits by plan administrators and
fiduciaries is subject to de novo review unless the plan provides
such decision-makers “discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Where such discretionary authority exists, the Court must apply
“a deferential arbitrary and capricious standard of judicial
review.”
Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir. 1998).
Plaintiff does not dispute that the Plan grants Prudential
discretionary authority and that the arbitrary and capricious
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standard of review applies.
Under that standard, a plan
administrator’s decision will be upheld so long as it is
“plausible in light of the record as a whole” and “supported by
substantial evidence in the record.”
Leahy, 315 F.3d at 17.
Substantial evidence means evidence that is “reasonably
sufficient to support a conclusion.”
Gannon v. Metro. Life Ins.
Co., 360 F.3d 211, 213 (1st Cir. 2004).
“[T]he existence of
contradictory evidence does not, in itself, make the
administrator’s decision arbitrary.”
Vlass v. Raytheon Emps.
Disability Trust, 244 F.3d 27, 30 (1st Cir. 2001).
At the administrative level, the claimant bears the burden
of demonstrating that he or she is disabled within the Plan’s
definition.
Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d
693, 700 (1st Cir. 2007).
The insurer is not required to give
any particular weight to the claimant’s treating physician.
Id.
The Plan provides that Rothman is disabled for the purposes of
disability benefits when Prudential determines that
1)
she is “not able to perform, for wage or profit,
the material and substantial duties of [her]
occupation”;
2)
after an initial period of total disability, she is
not able to “perform for wage or for profit the
material and substantial duties of any job for
which
[she
is]
reasonably
fitted
by
[her]
education, training and experience;
3)
she is not working at any job for wage or profit;
and
4)
she is under the regular care of a doctor.
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B.
Plaintiff’s Request for Discovery
Rothman requests limited discovery regarding Prudential’s
conflict of interest.
She claims that a conflict of interest
arises from the fact that Prudential is the payor of benefits
under the Plan and, as such, has a financial interest in
terminating or denying benefits.
Rothman claims that discovery
is needed regarding Prudential’s “conflict-ameliorating
procedures”.
See Denmark v. Liberty Life Assurance Co. of
Boston, 566 F.3d 1, 10 (1st Cir. 2009).
Indeed, where the plan administrator operates under a
conflict of interest, that is a factor in determining whether he
or she abused his or her discretion.
Firestone, 489 U.S. at 115.
The First Circuit Court of Appeals has held, however, that the
fact that the insurance company both determines eligibility for
and pays the benefits is not enough to alter the arbitrary and
capricious standard of review.
See Wright v. R.R. Donnelley &
Sons Co. Grp. Benefits Plan, 402 F.3d 67, 75 (1st Cir. 2005); Doe
v. Travelers Ins. Co., 167 F.3d 53, 57 (1st Cir. 1999).
Because
of that binding precedent, and because Rothman has claimed no
other basis for a conflict, such as improper motive, the
arbitrary and capricious standard of review applies here.
In any
event, the Court will deny Rothman’s request because Magistrate
Judge Sorokin thoroughly considered and reasonably denied
Rothman’s motion for discovery on this same basis on December 22,
-8-
2010 (Docket No. 18).
C.
Application
Defendants move for summary judgment, arguing that
Prudential’s decision was reasonable and supported by substantial
evidence and, therefore, should be affirmed.
See McLaughlin v.
Prudential Ins. Co. of Am., 319 F. Supp. 2d 115, 125-26 (D. Mass.
2004).
Defendants argue that the objective evidence, gathered
from examination and tests, shows that Rothman was functioning
normally after June 18, 2006.
In addition, they maintain that
there is no evidence of any physical or cognitive impairment
other than mild memory loss at the time of the accident.
Plaintiff was able to travel to Italy and did not proffer
evidence that she experienced any significant changes in her
daily living activities.
Rothman first responds that Prudential inappropriately
relied on Dr. O’Connor’s January 12, 2007 neuropsychological
report because that report cannot attest to her capacity during
the relevant period, i.e., from June 19, 2006 (when her STD
benefits expired) through December 31, 2006 (when Dr. Kanner
concluded that Rothman was fit to return to work).
Second, Rothman highlights the inconsistency between
Prudential’s grant of STD benefits and its denial of LTD benefits
based on its review of the exact same medical records.
Rothman’s
argument is meritorious because the doctor’s reports do not
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substantially change from the STD period to the LTD period.
She
exhibited similar symptoms and the award of STD was not based on
any positive tests for cognitive or physical disability.
Thus,
it was inconsistent for Prudential to deny the LTD benefits based
on identical symptoms and the lack of objective testing.
Third, Rothman points out that Prudential’s definition of
total disability is dependant upon the employee’s job
description.
Leahy, 315 F.3d at 19.
She argues that Dr.
McIntire never considered whether she was capable of performing
her particular job which, according to Rothman, is “extremely
demanding” and cannot be undertaken part time.
Finally, Rothman
argues that neither Prudential nor Dr. McIntire supported the
doctor’s contention that the testing that was not performed is
usually performed by doctors diagnosing concussions and treating
post-concussion syndrome.
This case presents a close question.
On one hand, Rothman
bore the burden of showing that she was entitled to LTD benefits
at the administrative level.
Although Dr. Kanner advocated on
her behalf, he did not perform a mental status examination or any
objective testing to support his contention that Rothman deserved
LTD benefits.
There is no objective evidence of head trauma or
injury or a cognitive or physical disability from the relevant
time period.
Moreover, Prudential is not required to defer to
the opinion of the claimant’s treating physician.
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See Morales-
Alejandro, 486 F.3d at 700.
Finally, neither Dr. Kanner nor Dr.
Ross explained specifically why Rothman’s condition rendered her
incapable of performing the specific tasks of her job.
On the other hand, both Dr. Kanner and Dr. Ross consistently
diagnosed Rothman with a well-recognized disability and Dr.
Kanner concluded that she was not fit to work through December,
2006.
Moreover, Prudential’s denial letters do not rebut
plaintiff’s claim that she was incapable of performing the
specific duties of her occupation, which Rothman claims are very
demanding and require
intense concentration, multi-tasking, emotional and
physical stamina, rapid processing of new information and
integration of multiple facts in intense conversations
with multiple people.
Neither party cites for the Court any analogous case law.
In some cases where the denial of benefits was upheld, the plan
administrator generally had more evidence than Prudential had
here.
For example, in Leahy v. Raytheon Co., the denial of
benefits was upheld because it was based on
statements and reports from the plaintiff’s treating
physicians, findings gleaned from an independent medical
examination, the outcome of a functional capacity
assessment, the conclusions of two retained physicians
who reviewed the plaintiff’s medical records at MetLife’s
behest, the timing of the plaintiff’s claim, and the
Social Security Administration’s determination that the
plaintiff was not disabled.
315 F.3d at 18.
In Vlass v. Raytheon Employees Disability Trust, the
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claimant’s primary treating physician opined that Vlass suffered
from a total disability and was, consequently, unable to work.
244 F.3d at 30.
Another physician, however, who had seen the
claimant throughout his period of disability noted that he had
improved and was capable of part-time work.
Moreover, a
vocational assessment was done and that doctor concluded that
Vlass could work.
Finally, Vlass was observed doing physical
activity, which conflicted with his primary physician’s opinion.
Id. at 30-31.
In light of that evidence, the First Circuit found
that the administrator’s denial of benefits was not arbitrary and
capricious.
Id. at 32.
Similarly, in Papadopoulos v. Hartford Life Insurance Co.,
379 F. Supp. 2d 117, 127 (D. Mass. 2005), this Court held that
the insurer’s denial of LTD benefits was not arbitrary and
capricious.
The Court so found even though the denial conflicted
with the opinions of the claimant’s treating physicians because
the decision was based on the opinions of two doctors, one of
whom physically examined the plaintiff and reviewed plaintiff’s
medical records, and a videotape showing the claimant performing
a range of daily activities.
Vlass and Papadopoulos are, however, distinguishable from
the case at bar.
Here, there is no videotape or other recorded
observation of Rothman performing occupational activities and
neither of the doctors that Prudential relied upon physically
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examined Rothman during the relevant time period.
This case is also distinguishable from Lopes v. Metropolitan
Life Insurance Company, in which the First Circuit upheld a
denial of LTD benefits.
332 F.3d 1, 5 (1st Cir. 2003).
In that
case, both of the claimant’s treating physicians were of the
opinion that he was totally disabled, but a third doctor, hired
by the defendant, who reviewed the claimant’s record but did not
physically examine him, found otherwise.
The First Circuit
upheld the denial of LTD benefits because one of the treating
physicians had classified the claimant as “Class 4” disabled,
meaning that he could engage in clerical or administrative, i.e.,
sedentary, activity.
Id. at 5.
Rothman’s situation is
distinguishable because neither of her doctors indicated that she
was capable of performing the functions of her job and Dr. Kanner
specifically stated that she could not in his October 6, 2006
letter.
In contrast, there are some parallels between this case and
cases in which a plan administrator’s decision was held to be
arbitrary and capricious.
For example, in Buffonge v. Prudential
Insurance Co. of America, the First Circuit held that
Prudential’s denial of LTD benefits, under the same definition
that applies to Rothman’s case, was arbitrary and capricious.
426 F.3d 20, 31 (1st Cir. 2005).
In that case, the claimant’s
primary treating physician and another physician both diagnosed
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the claimant with severe back pain resulting in LTD and an
inability to work.
Prudential’s denial was based on 1) a
physical therapy summary that deemed the claimant pain-free,
2) the opinion of Prudential’s doctor that the claimant could
perform a desk job, 3) the fact that the employer had made
physician-requested accommodations and 4) the opinion of a
consultant who reviewed the claimant’s record (as did Dr.
McIntire in this case) but never examined the claimant.
25.
Id. at
The Court found that Prudential’s decision was arbitrary
because it had relied on chosen parts of the claimant’s medical
record but had ignored other parts that established an inability
to work.
Id. at 30-31.
In the case at bar, the Court agrees with Rothman that
Prudential’s reliance on Dr. O’Connor’s January, 2007 examination
was misplaced because it occurred after the period for which
Rothman claims LTD benefits (June 18 through December 31, 2006).
Without O’Connor’s report, Prudential’s decision was based
entirely on Dr. McIntire’s review of Rothman’s medical record.
The Court concludes that Prudential’s denial of LTD benefits
in this case was arbitrary, as it was in Buffonge.
See id.
Although Prudential is not required to defer to the claimant’s
treating physicians, it cannot ignore their opinions or rely on
isolated statements from the medical record.
For example,
Prudential mentions Rothman’s June 13, 2006 visit with Dr. Kanner
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but fails to report his opinion that she was unable to work at
that time due to fatigue, headache and other symptoms of postconcussion syndrome.
Furthermore, there is no mention in any of
Prudential’s denials of Dr. Ross’s statements, in her August 17,
2006 report, that Rothman was “unable to work at present” and
“continues to struggle with cognitive difficulties”.
Dr. Ross
noted that Rothman was “still fatigued and has to rest every
day.”
Dr. McIntire also ignored that evaluation completely in
both of his reports.
Similarly, both Prudential and Dr. McIntire neglected to
discuss Dr. Kanner’s letter of October 6, 2006, which reiterated
that Rothman was not fit to return to work at that time given the
intensity of her job and the “substantial impairment of her high
level neurocognitive functioning”.
Neither Prudential nor Dr.
McIntire mentioned Dr. Kanner’s opinion (expressed in his letter
of August 1, 2007) that Rothman was totally disabled and unable
to work for the entire calender year of 2006.
Finally,
Prudential’s decisions do not describe the specific aspects of
Rothman’s job that she was ostensibly capable of performing.
In light of the selective extraction of statements from
Rothman’s medical record and the lack of substantial evidence
supporting Prudential’s denial of LTD benefits, the Court finds
that Prudential’s decision was arbitrary and capricious.
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D.
Remedy
Once the court determines that an administrator’s decision
was arbitrary and capricious, it can either remand the case to
the administrator for a renewed evaluation or retroactively award
benefits.
Buffonge, 426 F.3d at 31.
The First Circuit has taken
a flexible approach and held that the Court has “considerable
discretion” to determine a remedy.
Cook v. Liberty Life
Assurance Co., 320 F.3d 11, 24 (1st Cir. 2003).
A retroactive
award of benefits is an appropriate remedy where “there was no
evidence in the record to support a termination or denial of
benefits.”
Id. (internal quotations omitted).
Remand is
inappropriate where
the difficulty is not that the administrative record was
incomplete but that a denial of benefits based on the
record was unreasonable.
Zervos v. Verizon N.Y. Inc., 277 F.3d 635, 648 (2d Cir. 2002).
Here, the record is complete and a remand to the Plan
Administrator is unlikely to result in a different determination
based on the same record.
For that reason and because the Court
concludes that Prudential’s denial was unreasonable, a
retroactive award of LTD benefits for the six-month period for
which Rothman claims she is entitled to those benefits is the
appropriate remedy.
See Cook, 320 F.3d at 24 (upholding award of
retroactive disability benefits and attorney’s fees).
The Court also has the discretion to award reasonable
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attorney’s fees and costs of action to either party, pursuant to
29 U.S.C. § 1132(g)(1).
Rothman deserves such an award in light
of the Court’s finding in her favor.
See id. at 25.
ORDER
In accordance with the foregoing,
1)
the defendants’ motion for summary judgment (Docket No.
19) and plaintiff’s request for discovery (Docket No.
24) are both DENIED; and
2)
summary judgment is entered sua sponte in favor of the
plaintiff.
The Court finds that the plaintiff is entitled to long-term
disability benefits for the period claimed, i.e., from June 18
through December 31, 2006, plus interest, costs and reasonable
attorney’s fees.
Plaintiff shall submit her memorandum in
support of specific damages on or before June 3, 2011.
Defendants shall submit their response on or before June 24,
2011.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 10, 2011
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