Petrone v. Long Term Disability Income Plan For Choices Eligible Employees of Johnson & Johnson And Affiliated Companies

Filing 46

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 34 Motion to Strike ; granting 43 Motion for Leave to File Document ; denying 20 Motion for Summary Judgment; denying 22 Motion for Summary Judgment; denying 27 Motion for Discovery and remanding for further proceedings consistent with this opinion. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CHERYL PETRONE,
Plaintiff,
v.
LONG TERM DISABILITY INCOME
PLAN FOR CHOICES ELIGIBLE
EMPLOYEES OF JOHNSON & JOHNSON
AND AFFILIATED COMPANIES,
Defendant.

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CIVIL ACTION NO.
11-10720-DPW

MEMORANDUM AND ORDER
March 27, 2013
Cheryl Petrone challenges the decision by the Johnson &
Johnson Corporate Benefits Department to deny her claim for
continued benefits under the Long Term Disability Income Plan for
Choices Eligible Employees of Johnson & Johnson and Affiliated
Companies (the “Plan”), an ERISA employee benefit plan. The
parties have filed cross-motions for summary judgment.
I.

BACKGROUND

Cheryl Petrone worked at DePuy Orthopaedics, Inc., a
subsidiary of Johnson & Johnson, as a Finish Operator, among
other jobs, for approximately seven years, from March 13, 2000
until June 7, 2007.
Ms. Petrone developed back pain around April 2007, and an
MRI revealed L5-S1 Disc Herniation.

She underwent back surgery,

a lumbar laminectomy, on July 2, 2007.

In October 2007, she was

diagnosed with radiculopathy and post-lumbar laminectomy
syndrome, known as failed back syndrome.
She received short term disability benefits for 26 weeks
beginning on her first day of absence from work due to her
condition, June 9, 2007, and it continued through December 7,
2007.

During this time, Ms. Petrone applied for long term

disability (“LTD”) benefits.

Reed Group, a third-party claims

service organization to which the Pension Committee delegated the
responsibilities of administering benefit claims, approved Ms.
Petrone’s application on December 14, 2007, with benefits
effective from December 8, 2007.

Her benefits continued until

Reed Group denied her claim for continued LTD benefits effective
January 12, 2009.
A.

The Long Term Benefits Plan
Ms. Petrone’s LTD Benefits are governed by the terms of the

Long Term Disability Income Plan for Choices Eligible Employees
of Johnson & Johnson and Affiliated Companies, in which Ms.
Petrone has chosen to participate.
In relevant part, the LTD plan states that Ms. Petrone
remains eligible for LTD benefits until she retires, begins to
receive a pension, turns 65 years old, or dies, as long as she
has “Total Disability.”

Total Disability is defined as:

the complete inability of the Participant, due to
Sickness or Injury, to perform any job for which the
Participant is (or may reasonably become) with or
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without reasonable accommodation qualified by training,
education or experience. (emphasis in original).
The LTD Plan also specifies that failure to do any of the
following constitutes grounds for termination of benefits “at the
sole discretion of the Plan Administrator”:
(1) ... [C]ooperate with any other procedures,
evaluation, investigation or audit in connection with
this Plan . . . ,
(3) cooperate with respect to the evaluation of a
Participant’s Total Disability or Continued Disability
. . . .
The LTD Plan asserts that it was justified in denying Ms.
Petrone’s claim for continued benefits both as a clinical matter
because her medical examinations reveal that she does not meet
the definition of “Total Disability” and as an administrative
matter for violation of the cooperation requirement.
B.

Clinical and Medical Examinations
Over the course of her treatment and review for her

condition, numerous doctors, therapists, and other professionals
have either examined Ms. Petrone or her medical files.

The

administrative record reflects that more than 12 different
medical professionals have weighed in on Ms. Petrone’s ability to
return to work in any job.

Six concluded that Ms. Petrone was

totally disabled and unable to work in any job (Marcovici,
Worthington, Dominguez, McClusky, Bledsoe, and Parker); six
concluded that she was capable of some level of work (Saris,
3

LeForce, Marion, Ferguson, DiTullio, and Trangle).

The following

is a summary of the impressions and conclusions of the medical
professionals.
1. Dr. Marcovici
Ms. Petrone met with Dr. Marcovici, one of her attending
physicians, on numerous occasions for examinations and surgeries.
It was Dr. Marcovici who performed Ms. Petrone’s laminectamy on
July 2, 2007.

Dr. Marcovici also performed the surgery to insert

Ms. Petrone’s spinal stimulator a year later.
In various follow-up examination reports, Dr. Marcovici
continued to conclude that Ms. Petrone was completely disabled
and incapable of performing sedentary work.

For instance, on

June 17, 2008, he wrote “her pain is severe and disabling. . . .
It is worse with activity and improved with rest. She has not had
any significant relief since the onset of her symptoms over a
year ago.”

On September 2, 2008, Dr. Marcovici classified Ms.

Petrone as “Class 5 - Severe limitation of functional capacity;
incapable of minimal (sedentary) activity,” although he
acknowledged that she had “improved (some).”
2. Dr. Jeremy Worthington
On November 13, 2007, Dr. Worthington conducted a
neurological examination finding that Ms. Petrone “has
intractable pain in any position but lying down, she’s able to
stand and she’s able to walk” and that as a result, “the patient
4

is unable to perform the responsibility for any job at this
time.”

Dr. Worthington also stated that “she has arachnoiditis

which is a postoperative complication that may be associated with
long-term pain and inability to work” and that “no definite
timing can be established for the management of chronic pain of
this type.”
3. Dr. Eric Dominguez
Dr. Eric Dominguez is another of Ms. Petrone’s attending
physicians.

During this period, he met with Ms. Petrone many

times, and has consistently maintained that Ms. Petrone is
incapable of any work.

For instance, on the attending physician

form he filled out for Reed Group, he classified Ms. Petrone as
“Class 5 - Severe limitation of functional capacity; incapable of
minimal (sedentary) activity,” stating that she had “improved
very little.”
On January 29, 2009, Dr. Dominguez wrote a “To Whom it May
Concern” letter, indicating that Ms. Petrone “is unable to work
at the current time and I believe this will be the case for the
foreseeable future.”

Dr. Dominguez reaffirmed this assessment on

April 14, 2009, when he filled out a detailed attending physician
form indicating that Ms. Petrone was “unable to concentrate or
focus on activities for prolonged periods because [of] either
intense paid or opioid related effects,” needs to be able to

5

stand and sit at will, and has other restrictions consistent with
work capacity below sedentary.
4. Catherine McClusky
Reed Group scheduled a Functional Capacity Evaluation
(“FCE”) for Ms. Petrone on November 25, 2008 with Catherine
McClusky, a Physical Therapist.

McClusky noted that Ms. Petrone

demonstrates
the ability to perform jobs requiring a work level of
.78 METS. This energy equivalent falls below the
Sedentary range of 1.5-2.1 METS. It is felt that Ms.
Petrone did not demonstrate maximum effort on this test
as she was observed to walk faster to the treadmill and
during push/pulling trials than she demonstrated on the
treadmill.
As to the grip and pinch testing, Ms. McClusky also stated that,
[n]o signs of maximum effort were noted during the grip
and pinch dynamometry which decreases the test
reliability. It is my best clinical judgment that fair
effort was demonstrated during most tasks.
Ms. McClusky concluded that Ms. Petrone’s material handling
performance would fall in the “‘Sedentary’ Physical Demands
category,” but that her “cardiovascular performance and inability
to sit for >3 minutes comfortably or stand in one place >10
minutes would place her as ‘Below Sedentary’” and therefore that
“Ms. Petrone did not demonstrate the ability to perform sedentary
work for 8 hours.”

(emphasis in original).

Reed Group inquired “what the evaluator means by stating she
put forth a ‘fair effort’.

Was she malingering?”

In response,

Ms. McClusky submitted an addendum to her report stating “it is
6

my best clinical judgment that at least some degree of
malingering was present during today’s FCE.” (emphasis in
original).
5. Dr. Stephen Saris
Reed Group also scheduled an Independent Medical Evaluation
(“IME”) for Ms. Petrone on December 9, 2008, with neurologist Dr.
Stephen Saris.
Dr. Saris noted that Ms. Petrone demonstrated “one of the
Waddell signs of symptom exaggeration,” but did not have
“generalized over-reaction.”

He found that her mental status was

normal, including orientation, memory, attention span and
concentration.

He noted that the success rate after surgery for

patients with extruded disks is “extremely high, and unless
someone has an adverse complication such as a diskitis, the
surgery is curative and should leave no meaningful neurologic
abnormality.”

Dr. Saris concluded that “[s]he has long since

recovered from [her operation], and is ready to return to work
without restrictions of any kind.
be injurious to her health.”

Such a return would in no way

He stated that his “only current

diagnosis for her is left-sided pain without any meaningful
objective abnormality.”
6. Dr. Bruce LeForce
As a part of Reed Group’s review of Ms. Petrone’s first
appeal from the denial of continued LTD benefits, Reed Group
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engaged Dr. Bruce LeForce, a neurologist, to review Ms. Petrone’s
complete file on July 16, 2009.
Dr. LeForce noted that “[s]he has impairment on the basis of
her lumbar laminectomy and the ongoing pain,” but concluded that
“based on the objective medical information provided for review,
there is not documented evidence of functional limitations that
would support an inability to work.”

He placed particular

emphasis on Dr. Saris’s examination, stating
The most recent examination by Dr. Saris on 12/09/2008
demonstrates normal strength. . . . The only objective
abnormality noted was the absence of the left Achilles
reflex. These objective findings do not support an
inability to work.
(emphasis added).

He also made the specific findings that,

she can sit, stand, or walk up to eight hours per day.
She can lift and carry up to 20 pounds occasionally and
up to 10 pounds frequently. She can exert a negligible
amount of force continuously. She can operate controls
with hands and feet.
7. Dr. Phillip Marion
Reed Group also arranged for Dr. Phillip Marion, a doctor
who specializes in physical medicine and rehabilitation/pain
management to review Ms. Petrone’s file on July 16, 2009 as part
of Ms. Petrone’s first appeal.
Dr. Marion’s report recounts an exhaustive summary of Ms.
Petrone’s medical examination history including (1) her many
examinations and follow-up appointments with Drs. Worthington,
Dominguez, and Marcovici between July 2007 and September 2008,
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each of whom conclude at every examination that Ms. Petrone is
unable to work in any capacity, (2) her November 2008
examination, in which physical therapist Catherine McClusky
placed her below the sedentary occupation level, but notes that
“some degree of malingering was present,” and finally, (3) her
December 2008 examination, in which Dr. Saris concluded “[s]he
could return to her prior job without restrictions.”

Dr. Marion

stated that “she continues to complain of pain; albeit without
correlated objective impairment” and “she remains otherwise
functionally independent with activities of daily living, fully
ambulatory and not restricted from driving a motor vehicle.
There is also no report of any specific cognitive deficits.”
He acknowledged the discrepant findings of previous
examiners, but concluded that there remains no objective
impairment:
Various medical evaluations and file reviews provide
varying conclusions from no occupational restrictions
to below sedentary (with evidence of malingering).
From a physical medicine and rehabilitation/pain
management perspective, there remains no objective
impairment precluding her from performing at least at
the light capacity occupational level on a full time
basis.
8. David Bledsoe
On September 24, 2009, Ms. Petrone submitted to Reed Group a
report by occupational therapist David Bledsoe, questioning some
of the conclusions that Ms. McClusky drew in her FCE.

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Mr. Bledsoe took particular issue with Ms. McClusky’s
“casual” use of the term malingering.

He stated that

“[m]alingering first of all is a diagnosis.
therapist routinely offers.

It is not one that a

Physical therapists at times can

offer a differential diagnosis, but to state ‘malingering’ from 2
casual observations is inappropriate.”

Mr. Bledsoe goes on to

indicate that Ms. McClusky did not have enough evidence to make a
malingering diagnosis, and that she had omitted the fact that Ms.
Petrone “had such difficulty with the treadmill assessment that
her companion (Susie) had to actually ‘catch’ her.”

He concluded

that Ms. McClusky’s original FCE opinion was the accurate one.
9. Gretchen Ferguson
After Reed Group denied Ms. Petrone’s initial appeal, and
Ms. Petrone filed a final appeal, Reed Group scheduled a new FCE
with Gretchen Ferguson, a physical therapist with Novacare
Rehabilitation, for November 16, 2009.
Ferguson noted that Ms. Petrone was “cooperative throughout
testing” although “[s]he demonstrated self limiting behavior
during the lift testing . . . .”

She demonstrated the capacity

for “occasional sitting, frequent walking, crawling . . . and
constant standing.”

From this, Ms. Ferguson concluded that Ms.

Petrone was “functionally capable of work at a light physical
demand level on a 8 hour per day basis according to U.S.

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Department of Labor Standards. . . . Her Aerobic capacity is
undeterminable due to an incomplete test.”
10. Dr. Michael DiTullio, Jr.
Also as part of Ms. Petrone’s final appeal, Reed Group
scheduled an IME with Dr. Michael DiTullio, Jr., a specialist in
physical medicine/rehabilitation, which took place on November
30, 2009.
Dr. DiTullio recounted an exhaustive review of Ms. Petrone’s
examination and medical history leading up to and resulting from
her laminectomy.

He also conducted his own examination and

determined that “she demonstrates a 10% impairment of the whole
person” and that “she has reached maximum medical improvement and
there is no role for further therapeutic interventions.”

From

this, he concluded that “Ms. Petrone should be able to
participate in an eight-hour-per-day sedentary position” as long
as she “avoid[s] those activities which would involve lifting
over 20 pounds, prolonged postural fixation, repetitive bending
or excessive spinal loading.”
Dr. DiTullio also submitted an addendum to his IME after
reviewing additional material that Ms. Petrone supplied.

He

determined that the additional documentation did not alter the
opinions and conclusions of his original report.

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11. Dr. Kevin Trangle
Reed Group submitted the entire claim file, including
additional information that Ms. Petrone submitted over the course
of her correspondence with Reed Group and the Corporate Benefits
Committee, to Dr. Kevin Trangle, who issued his report on January
25, 2010.
Dr. Trangle recounted Ms. Petrone’s medical history,
extending back to conditions predating the back pain and
subsequent laminectomy, and extending forward to a vocational
assessment on January 5, 2010.

His recitation included brief

summaries of sworn statements by Ms. Petrone herself, her
partner, Suzanne Wood, and her sister, Ann Petrone.
In Dr. Trangle’s analysis,
The actual left-sided disc protrusion was much reduced
compared to the pre-operative situation. Another MRI
scan . . . done after surgery . . . showed that there
was resolution of the enhancement and granulation
tissue on the . . . nerve roots. There was only a
small central left-sided disc protrusion noted. This
indicated at least anatomically, functionally and
imagine-wise, an improvement of her situation based
upon surgery and recession of the scar tissue.
She, nonetheless, continued to have complaints which
necessitated more treatment.
Dr. Trangle concluded, “based upon this information, upon
numerous examinations, consistent findings among Independent
Medical Examiners and consistent evidence of either malingering
symptom magnification . . . , Ms. Petrone, is capable of doing
light work.”
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Dr. Trangle appears to have (1) misread Catherine McClusky’s
FCE, stating that she concluded Ms. Petrone was able to work in a
sedentary capacity when, in fact, she placed Ms. Petrone below
the threshold for sedentary work, and (2) slightly exaggerated
Dr. Saris’s observation of only a single Waddell sign of symptom
magnification as “Dr. Saris . . . opined that she had symptom
magnification and positive Waddell signs as well as positive
distraction test [sic].”

However, Dr. Trangle does not appear to

have placed any special weight on those reports in arriving at
his conclusion.
Dr. Trangle also filed an addendum to his report after
reviewing further materials that Ms. Petrone submitted, but his
opinion remained unchanged.
12.

James Parker

On January 5, 2010, an independent vocational consultant
retained by Ms. Petrone’s counsel, reviewed Ms. Petrone’s medical
and examination records and conducted an interview with Ms.
Petrone by telephone.
Parker opined that in denying Ms. Petrone’s claim, Reed
Group had not “acknowledged the exertional and non-exertional
impairments and functional limitations established by Dr.
Dominguez and others that preclude [her] from performing any work
on a regular and sustained basis.”

Parker noted that the

limitations on Ms. Petrone’s ability to sit, stand or walk
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precludes her ability to do sedentary work, which “require[s]
sitting for extended periods of time,” and the frequency with
which she would need to be absent from work “due to pain and
related functional limitations . . . would not be tolerated by
any employer in any work environment.”

He therefore concluded

that “Ms. Petrone is totally disabled from all employment.”
C.

Procedural History
Ms. Petrone began receiving short term disability benefits

on June 9, 2007.

Her long term disability benefits began on

December 8, 2007.
Reed Group initially denied Ms. Petrone’s claim for
continued LTD benefits by a letter dated December 16, 2008, which
became effective January 12, 2009.
Ms. Petrone appealed the initial denial of her claim for
continued LTD benefits by a letter dated June 8, 2009.

Reed

Group acknowledged her appeal by a letter dated June 10, 2009,
but ultimately denied the appeal on July 24, 2009.
Meanwhile, the Social Security Administration granted Ms.
Petrone’s request for Social Security Disability Income (“SSDI”)
by a six-page decision dated August 19, 2009.

The Administrative

Law Judge found, among other things, that Ms. Petrone (1) had
“severe impairment of her ability to concentrate and persist at
tasks due to her pain,” and was “unable to lift or carry more
than 10 pounds occasionally, do any postural activities or
14

perform prolonged sitting, standing or walking,” (2) could not
transfer any acquired work skills to another job, (3) could not
perform any job “that exist[s] in significant numbers in the
national economy.”
Ms. Petrone filed her final appeal of her LTD benefits claim
on September 22, 2009, as acknowledged by a September 24, 2009
letter from the Plan.

The Plan notified Ms. Petrone on October

28, 2009, that it would require more information in order to
evaluate Ms. Petrone’s final appeal because ERISA regulations
require an administrator to consult medical professionals who
were not involved in the previous determination in making a
decision regarding the appeal.

See 29 C.F.R. § 2560.503-

1(h)(iii)-(v).
Over the course of the next several months, until April 4,
2010, the parties exchanged numerous letters containing or
attaching evidence, evaluations, and questions regarding Ms.
Petrone’s appeal.

Finally, on April 27, 2010, Richard McDonald,

issued a 22-page letter constituting the Plan’s Final
Determination, denying Ms. Petrone’s appeal.

Ms. Petrone

thereupon filed her Complaint with this Court one year later on
April 26, 2011.
II.

STANDARD OF REVIEW

Summary judgment in the ERISA context differs significantly
from summary judgment in an ordinary civil case.
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The usual

factual inferences in favor of the non-moving party do not
apply,1 and “in a very real sense, the district court sits more
as an appellate tribunal than as a trial 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,

17-18 (1st Cir. 2002).
Under Supreme Court caselaw, “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.”

Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

If, however, “the

ERISA plan grants the plan administrator discretionary authority
in the determination of eligibility for benefits, the
administrator’s decision must be upheld unless it is arbitrary,
The First Circuit has not been entirely consistent in its
articulation of this point of law. Compare Gent v. CUNA Mut.
Ins. Society, 611 F.3d 79, 82-83 (1st Cir. 2010)(“[W]e typically
view the record evidence in the light most favorable to the nonmoving party . . . . Our approach is different, however, in the
ERISA benefit denial context . . . .” (citations omitted)) and
Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir.
2005) (“[T]he non-moving party is not entitled to the usual
inferences in its favor.”) with Wright v. R.R. Donnelley & Sons
Co. Grp. Benefits Plan, 402 F.3d 67, 74 (1st Cir. 2005) (“The
operative inquiry . . . is whether the aggregate evidence, viewed
in the light most favorable to the non-moving party, could
support a rational determination that the plan administrator
acted arbitrarily in denying the claim for benefits.” (quotations
omitted)).
1

16

capricious, or an abuse of discretion.”

Wright v. R.R. Donnelley

& Sons Co. Grp. Benefits Plan, 402 F.3d 67, 74 (1st Cir. 2005)
(internal citation and quotation omitted).
A.

Delegation of Discretion
In this case, Ms. Petrone asserts that the Plan bears the

burden of supporting its position under the less deferential de
novo review.

However, she makes no argument herself in favor of

de novo review, and, in fact, concedes that “there is appropriate
language in the J&J LTD Plan granting discretionary authority to
Mr. McDonald to make benefit decisions.”

Correspondingly, I

apply the more deferential abuse of discretion standard here.
The record in this case supports Ms. Petrone’s effective
concession that the LTD Plan has appropriately vested Mr.
McDonald with the discretion to make benefit decisions.
According to the LTD Plan, the Pension Committee, which is the
Plan Administrator and fiduciary may “[e]xercise its discretion
to determine eligibility for benefits, to construe and interpret
the provisions of the Plan and to render conclusive and binding
decisions and determinations based thereon . . . including
without limitation adjudication of all claims and claims
appeals.”

The Pension Committee has “[d]elegated its authority,”

to review and decide LTD benefits claims and appeals to Johnson &
Johnson’s Corporate Benefits Department.

Mr. McDonald, who

issued the Plan’s Final Determination, is the Director of
17

Corporate Benefits for Johnson & Johnson and a member of the
Pension Committee.

This suffices to show that the LTD Plan gave

Corporate Benefits and Mr. McDonald, acting on behalf of
Corporate Benefits, “discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.”
Therefore, the Final Determination “will not be disturbed if
reasonable.”

Conkright v. Frommert, 130 S. Ct. 1640, 1651 (2010)

(citation and quotation omitted).
B.

Conflict of Interest
In an ERISA disability claim denial case, such as this one,

the abuse of discretion standard is flexible when there is a
potential for conflict of interest.

In Metropolitan Life Ins.

Co. v. Glenn, the Supreme Court held that when a “plan
administrator both evaluates claims for benefits and pays
benefits claims[, this] creates the kind of ‘conflict of
interest’” courts must factor in to their analysis.

554 U.S.

105, 112, 115 (2008); see also Wallace v. Johnson & Johnson, 585
F.3d 11, 15 n.2 (1st Cir. 2009) (“The deference may be less
generous where the deciding entity has a financial stake in the
outcome . . . .”).
itself.

This does not alter the standard of review

Conkright, 130 S. Ct. at 1646 (“A deferential standard

of review remains appropriate even in the face of a conflict.”);
Cusson v. Liberty Life Assur. Co. of Boston, 592 F.3d 215, 224
(1st Cir. 2010).

Instead, the court must “[t]emper the abuse of
18

discretion standard with skepticism ‘commensurate’ with the
conflict.”

Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir.

2009).
A conflict is “more important . . . where circumstances
suggest a higher likelihood that it affected the benefits
decision.”

Glenn, 554 U.S. at 117.

On the other hand, the

conflict “prove[s] less important (perhaps to the vanishing
point) where the administrator has taken active steps to reduce
potential bias and to promote accuracy.”

Id.

Such steps may

include “employing a neutral, independent review process, or
segregating employees who make coverage decisions from those who
deal with the company’s finances.”

Harlick v. Blue Shield of

Cal., 686 F.3d 699, 707 (9th Cir. 2012) (quoting Glenn, 554 U.S.
at 117).
The Plan asserts that there can be no conflict of interest
in this case because the entity administering the plan is not
also responsible for paying benefits under the plan.

Indeed, the

interpretation and review of LTD Plan claims appeals is the
responsibility of the Johnson & Johnson Corporate Benefits
Department, which, like the Pension Committee that administers
claims in the first instance, engages Reed Group, an independent
claims service organization, to coordinate and administer much of
the factual and evidentiary development.

However, neither

Johnson & Johnson, nor Reed Group funds the Plan.
19

The Plan is

funded by employee contributions deposited in the Johnson &
Johnson Voluntary Employee Benefit Trust.

Notwithstanding, Ms.

Petrone makes three arguments to demonstrate a conflict of
interest: (1) a claimant’s qualification as “Totally Disabled”
under the LTD Plan entitles her to benefits distinct from LTD
benefits (such as dental, medical and vision benefits) paid by
the claimant’s immediate employer, a subsidiary of Johnson &
Johnson.

Therefore Johnson & Johnson, as the ultimate parent,

can save the costs of paying such benefits by denying claims
under the LTD Plan; (2) the Trust is insured by Prudential and
its funds are “co-mingled” with the Johnson & Johnson Voluntary
Employee Benefits Trust.

Therefore the Trust does not fund the

LTD Plan alone, but rather leaves open the possibility of a
financial conflict of interest with the other entities; and (3)
the Court cannot make an informed decision absent discovery
regarding the funding status of the Trust and Mr. McDonald’s
compensation.

I find the potential for conflict of interest here

is so attenuated to be of little true concern.

Ultimately, none

of these theories establishes a cognizable conflict of interest.
1. Collateral Benefits
Under the LTD Plan, a claimant “considered disabled as
defined by the Choices Long Term Disability Plan and Reed Group”
is entitled to maintain a variety of “other plan benefits” such
as “Medical, Dental, and/or Vision,” “Term Life Insurance,” and
20

24-Hour Accident Insurance, among others.

This is true “[e]ven

if [the claimant is] not enrolled in the LTD Plan.”

Ms. Petrone

asserts that although the LTD Plan itself is funded by employee
contributions, “Johnson & Johnson can save substantial sums by
terminating LTD Benefit claims” due to these collateral benefit
obligations.
A problem with this argument is that Johnson & Johnson does
not, itself, fund these collateral benefits.

Instead, “‘company

costs’ for [these] other benefits are paid through a ‘charge
back’ mechanism by the individual operating company that employs
the affected individual,” in Ms. Petrone’s case, DePuy
Orthopaedics.

Ms. Petrone does not challenge this fact, but

argues that for ERISA purposes, Johnson & Johnson and DePuy
Orthopaedics are considered a single employer under 26 U.S.C. §
414(b), because they are “corporations which are members of a
controlled group of corporations” and because Johnson & Johnson
lists itself as a single employer in its forms 5500, filed with
the Department of Labor.

Ms. Petrone’s contentions on this point

are unpersuasive.
The statute that Ms. Petrone cites, 26 U.S.C. § 414(b), is
expressly limited; it is only for “purposes of sections 401
[qualified pension, profit-sharing, and stock bonus plans],
408(k) [and] 408(p) [individual retirement accounts], 410
[minimum participation standards], 411 [minimum vesting
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standards], 415 [limitations on benefits and contribution under
qualified plans], and 416 [special rules for top-heavy plans].”
Id.

By its own terms, § 414(b) does not apply to the statute

pursuant to which Ms. Petrone brings this case: 29 U.S.C. §
1132(a)(1)(B) for civil enforcement “to recover benefits due . .
. under the terms of [the] plan.”
By the same token, companies file Forms 5500 pursuant to
ERISA Sections 104 and 4065 (29 U.S.C. §§ 1024, 1365) where
“single-employer plan” is intended to distinguish plans
administered by a “single” corporation from a multiemployer plan
to which “more than one employer is required to contribute. . .
[and] which is maintained pursuant to one or more collective
bargaining agreements . . . .”

29 U.S.C. § 1002(37)(A).

This

“single-employer” designation on the forms 5500 does not apply to
§ 1132(a)(1)(B) and does not justify finding that Johnson &
Johnson is directly responsible for funding Ms. Petrone’s
collateral benefits.

Rather, by requiring the claimant’s direct

employer to cover the costs of collateral benefits while the
ultimate parent takes responsibility for adjudicating the claims,
the Plan has taken steps to “segregat[e] employees who make
coverage decisions from those who deal with the company’s
finances.”

Harlick, 686 F.3d at 707.

Under these circumstances,

the conflict “prove[s] less important (perhaps to the vanishing
point).”

Glenn, 554 U.S. at 117.
22

Furthermore, an employee remains eligible for these
collateral benefits “even if [she is] not enrolled in the LTD
Plan” provided she is “considered disabled as defined by the
Choices Long Term Disability Plan and Reed Group.”

Under an

administrative denial of an LTD Plan claim, the claimant may
still be entitled to the collateral benefits if she meets the
clinical definition of “disabled.”

Only a clinical denial could

guarantee that no Johnson & Johnson entity remains liable for
these collateral benefits.

Thus, these collateral benefits do

not create a cognizable conflict of interest regarding the LTD
Plan’s administrative denial of Ms. Petrone’s claim.

To the

extent that potential savings from denial of these collateral
benefits creates any conflict of interest for the LTD Plan
administrators, it can only affect the portion of the denial
based on medical grounds.
That said, I recognize that Johnson & Johnson, as the
ultimate parent, has a financial interest in its subsidiary,
DePuy Orthopaedics.

A parent-subsidiary relationship between the

decision maker and the financier may provide some cause for
concern.

See Leon v. Quintiles Transnational Corp., 300 F. App’x

558, 559 (9th Cir. 2008) (finding a structural conflict of
interest where the claims administrator was also a subsidiary of
the plan’s funding source).

However, this potential conflict is

attenuated “perhaps to the vanishing point” by the steps Johnson
23

& Johnson has taken to segregate the relevant actors.

In any

event, I view the Plan’s decision with skepticism “commensurate”
to the potential conflict of interest.

Nolan, 551 F.3d at 1153.

2. Johnson & Johnson Voluntary Employee Benefit Trust
In 2009, the First Circuit noted, describing the same plan
at issue in this case, that there was no conflict of interest
where “the Plan is funded by employee contributions-not those of
Johnson & Johnson.”

Wallace 585 F.3d at 15 n.2.

Ms. Petrone

nevertheless questions the independence of the trust because the
LTD Plan purchased insurance, and therefore Prudential Insurance
Company of America may also be liable for certain new claims
arising after January 1, 2009.

This does not, however, affect

the independence of the LTD Plan with respect to Ms. Petrone’s
claim.

Her claim arose in 2007 upon her initial disability and

inability to perform her job.

The initial denial of her

continued LTD benefits occurred in December 2008, one month
before the operative date of the Prudential insurance.

Even if

the Trust’s purchase of insurance could undermine the
independence of the LTD Plan’s funding, it could not affect an
administrator’s decision regarding Ms. Petrone’s claim because
her claim is not covered.

The fact that the trust purchased

insurance also does nothing to undermine the fact that the source
of funding, the employees, remains separated from the
administration of the Plan, by Johnson & Johnson.
24

Equally unavailing is Ms. Petrone’s attempt to undermine the
independence of the Trust because its funds are “co-mingled” with
those of the Johnson & Johnson Voluntary Employee Benefit Trust.
Ms. Petrone argues that Johnson & Johnson’s Forms 5500
demonstrate co-mingling of funds between the LTD trust and the
VEBA trust for medical benefits.

But the same Forms 5500 set out

the LTD Plan’s investments in detail, demonstrating separate
accounts for each plan under the master trust.

The

administration of two accounts under a single master trust does
not give rise to a conflict of interest in the administration of
claims funded by one of the two accounts.
3. Request for Further Discovery
During the course of her appeal, Ms. Petrone inquired
regarding the adequacy of the funding in the Trust for the LTD
Plan.

Mr. McDonald replied on behalf of Corporate Benefits,

stating “[t]he Plan is funded by employee contributions, and
therefore no benefits are paid out of Johnson & Johnson’s general
assets.

Moreover, Johnson & Johnson is under no obligation to

fund the Plan should it become insolvent.”

Unsatisfied with this

response, Ms. Petrone argues, without further explanation, that a
Plan supported by an under-funded trust is more likely to deny a
claim than one supported by an adequately funded trust.

This

argument assumes what it seeks to prove: that a potentially

25

underfunded trust here undermines the independence of an
unrelated Plan administrator.
The First Circuit has cautioned against permissive use of
discovery in ERISA benefit denial cases.

Liston v. Unum Corp.

Officer Sev. Plan, 330 F.3d 19, 23 (1st Cir. 2003) (“[S]ome very
good reason is needed to overcome the strong presumption that the
record on review is limited to the record before the
administrator.”).

“In some cases, a good reason has been found

to exist when a party makes a colorable claim of bias.”

Denmark

v. Liberty Life Assurance Co. of Boston, 566 F.3d 1, 10 (1st Cir.
2009).

However, Ms. Petrone’s unsubstantiated conjecture that

the Trust might not be adequately funded and that such potential
inadequate funding might make claim denials more likely is not
the kind of colorable claim of bias sufficient to “overcome the
strong presumption” against discovery.

Liston, 330 F.3d at 23.

Ms. Petrone’s next suggestion is no more colorable.

She

argues that this Court cannot make a reasoned judgment in the
absence of discovery into Mr. McDonald’s “compensat[ion], how his
performance is linked to cost savings, and the total cost of
providing collateral benefits under the J&J LTD Plan” because
“Mr. Johnson [sic] is likely to curry favor with his employer
[Johnson & Johnson] by holding down the costs of the[] other
benefits.”

Yet Ms. Petrone points to no evidence, and she does

not articulate any colorable theory to indicate that Mr.
26

McDonald’s compensation or performance might somehow be linked to
the number of claims he denies.

This is not the kind of

“colorable claim of bias” that might constitute a “good reason”
to set aside the presumption against discovery.
F.3d at 10.

Denmark, 566

I decline to sponsor a fishing expedition in the

absence of some reason to suspect that discovery might lead to
meaningful evidence of a conflict of interest.
In applying the “abuse of discretion” standard in this case,
I bear in mind that Johnson & Johnson, as the ultimate parent of
DePuy Orthopedics, Inc., may indirectly save certain collateral
costs associated with a finding of disability in the case of a
purely administrative denial of Ms. Petrone’s claim, but I bring
to bear only the skepticism “commensurate” to the attenuated
potential for conflict of interest.
III.

Nolan, 551 F.3d at 1153.

DISCUSSION

The Plan’s Final Determination letter, which Ms. Petrone
challenges in this action, states two independent grounds for
denial of Ms. Petrone’s claim: first, the clinical ground that
Ms. Petrone does not meet the LTD Plan’s definition of “Total
Disability” because she is not incapable of performing “any job”
for which she is or may reasonably become qualified, and second,
the administrative ground that she failed to “cooperate with
[the] procedures, evaluation, investigation or audit in
connection with th[e] Plan.”

The Plan abused its discretion in
27

determining that Ms. Petrone does not qualify as “Totally
Disabled” by ignoring or failing to address meaningfully
substantial evidence in the record running contrary to the Plan’s
determination.

Moreover, its administrative denial construing

Ms. Petrone’s failure to cooperate appears to be an abuse of the
Plan’s discretion as well.
A.

The Clinical Rationale for Claim Denial
Under the applicable abuse of discretion standard, Richard

McDonald’s final determination on behalf of the Corporate
Benefits Department “must be upheld if there is any reasonable
basis for it.”

Morales-Alejandro v. Medical Card Sys., Inc., 486

F.3d 693, 698 (1st Cir. 2007).

It is axiomatic that in abuse of

discretion review, “a court is not to substitute its judgment for
that of the [decision maker].”

Motor Vehicle Mfgrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983);
see also Terry v. Bayer Corp., 145 F.3d 23, 40 (1st Cir. 1998)
(incorporating the State Farm rule to the ERISA benefit context).
Rather all that is required is that “the administrator’s decision
. . . be . . . reasoned and supported by substantial evidence in
the record.”

Vlass v. Raytheon Employees Disability Trust, 244

F.3d 27, 30 (1st Cir. 2001).
The Administrative Record contains substantial evidence that
Ms. Petrone may not meet the LTD Plan’s definition of “Total
Disability.”

Saris, LeForce, Marion, Ferguson, DiTullio, and
28

Trangle all concluded that Ms. Petrone was capable of at least
“sedentary” work, some concluded that she may be capable of
“light” work, and Dr. Saris concluded that she may have been able
to return to her former job without functional limitations of any
kind.

Mr. McDonald’s Final Determination letter quotes this

evidence at length.

However, even under an abuse of discretion

standard, this does not end the inquiry.

The Administrative

Record also contains evidence that Ms. Petrone was incapable of
performing “any job” and therefore “Totally Disabled” under the
LTD Plan.

Marcovici, Worthington, Dominguez, McClusky, Bledsoe,

and Parker each concluded that Ms. Petrone’s disability prevented
her from performing even “sedentary” work.

Moreover, an

Administrative Law Judge for the Social Security Administration
issued a decision “fully favorable” to Ms. Petrone, finding her
“disabled” under 42 U.S.C. §§ 216(I), 223(d).

Furthermore, Ms.

Petrone; Ms. Petrone’s sister, Ann Petrone; and Ms. Petrone’s
partner, Suzanne Wood, each submitted sworn statements regarding
the debilitating extent of Ms. Petrone’s limitations.

Mr.

McDonald does not discuss most of this contrary evidence in the
Final Determination letter.
Of course, “the existence of contradictory evidence does
not, in itself, make the administrator’s decision arbitrary,”
Vlass, 244 F.3d at 30, but the administrator cannot simply ignore
contrary evidence, or engage with only that evidence which
29

supports his conclusion.

See Winkler v. Metro. Life Ins. Co.,

170 F. App’x 167, 168 (2d Cir. 2006) (“An administrator . . . may
not, as MetLife did here, cherry-pick the evidence it prefers
while ignoring significant evidence to the contrary.”); Love v.
Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 397-98 (7th
Cir. 2009) (“[P]lan administrators . . . may not simply ignore .
. . medical conclusions or dismiss . . . conclusions without
explanation.”) (internal citations omitted).
Of the contrary evidence contained in the Administrative
Record, the Final Determination letter essentially only addresses
(1) the sworn statements Cheryl Petrone, Ann Petrone, and Suzanne
Wood and (2) Mr. James Parker’s vocational assessment.

As to

this evidence, the Final Determination letter reasonably
concludes that “[w]hile statements by Ms. Petrone’s sister and
roommates have been considered, we have determined that such
anecdotal evidence is of less weight than the observations of
trained professionals.”

The letter also devotes considerable

analysis to the weaknesses of Mr. Parker’s vocational assessment,
stating that he mischaracterizes certain reports that he relies
on, makes unsupported claims, and misunderstands the requirements
of “Total Disability” under the plan.
determinations is immaterial.

Whether I agree with these

The Plan has made a reasoned

determination supported by the record that this evidence lacks

30

probative value.

That suffices under the abuse of discretion

standard of review.
However, the Final Determination letter fails meaningfully
to address (1) Dr. Marcovici’s Attending Physician Statement
classifying Ms. Petrone as “Class 5 - Severe limitation of
functional capacity; incapable of minimal (sedentary) activity;”
(2) Dr. Worthington’s report and conclusion that “the patient is
unable to perform the responsibility for any job at this time;”
(3) Dr. Dominguez’s reports and conclusions that Ms. Petrone “is
unable to work at the current time and I believe this will be the
case for the foreseeable future,” and his Attending Physician
Statement also classifying her as “Class 5;” (4) Catherine
McClusky’s ultimate conclusion in her FCE that “Ms. Petrone did
not demonstrate the ability to perform sedentary work for 8
hours;” and (5) the Social Security ALJ’s determination that she
is disabled.
1. Failure to Address Adverse Medical Evidence
The Final Determination letter fails even to mention, let
alone dispute, Dr. Marcovici’s and Dr. Worthington’s conclusions.
It lists Dr. Marcovici’s Attending Physician Report among the
documents considered, states that the ALJ relied on his
assessment, and quotes Dr. Saris’s IME, which briefly mentions
that Dr. Marcovici performed Ms. Petrone’s surgery and diagnosed
her with possible reflex sympathetic dystrophy.
31

But nowhere does

the Final Determination mention that he classified her as
“incapable of minimal (sedentary) activity.”

Similarly, the

Final Determination makes no mention of Dr. Worthington’s
conclusion that “the patient is unable to perform the
responsibility for any job at this time.”

The only reference to

Dr. Worthington at all appears in a lengthy quotation from Dr.
Saris’s IME, unrelated to any conclusion regarding Ms. Petrone’s
ability to work, in which Dr. Saris states “Dr. Worthington
commented on asymmetry of her calf muscles, and I measured them
carefully and she has neither atrophy nor fasciculation nor
weakness at this time.”
The letter frequently mentions Dr. Dominguez, yet it never
mentions Dr. Dominguez’s January 29, 2009 letter stating that she
is “unable to work . . . for the foreseeable future,” nor his
Attending Physician Statement classifying her as “incapable of
minimal (sedentary) activity.”
The Defendant correctly argues that it owes no special
deference to Drs. Marcovici, Worthington, and Dominguez as Ms.
Petrone’s attending physicians.

See Richards v. Hewlett-Packard

Corp., 592 F.3d 232, 240 (1st Cir. 2010); see also Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 832 (2003).

But it is an

abuse of discretion to ignore their evidence entirely.

Love, 574

F.3d at 397-98 (7th Cir. 2009) (“While plan administrators do not
owe any special deference to the opinions of treating physicians,
32

they may not simply ignore their medical conclusions or dismiss
those conclusions without explanation.”).
2. Failure to Address McClusky’s Functional
Capacity Evaluation
The Final Determination letter does mention Catherine
McClusky’s report, but does not meaningfully address her
conclusion, which does not support denial of Ms. Petrone’s
appeal.

The letter notes that “[McClusky] concluded that Ms.

Petrone was not capable of sedentary work based on her
cardiovascular performance, about which she had noted suboptimal
effort, and sitting/standing limitations.”

It also notes that

Dr. Saris’s opinion, finding “no functional impairment and no
disability,” contradicts Ms. McClusky’s conclusion and
characterizes Dr. Saris’s opinion as “definitive.”

One might

infer from the letter that the Plan believes that any conclusions
drawn, even in part, from tests in which Ms. McClusky noted
“suboptimal effort” are invalid because Ms. Petrone did not
exhibit the required engagement with the test’s requirements.
However, Ms. McClusky does not so limit her conclusions herself.
Adopting invalidity by implication without addressing Ms.
McClusky’s conclusion is also an abuse of discretion.
3. Reliance on Dr. Saris’s Report
The LTD Plan’s heavy reliance on Dr. Saris’s IME (1) as
affirmative evidence of Ms. Petrone’s capacity to work, (2) to
address Ms. McClusky’s conclusion, and (3) as the only
33

substantive mention of Drs. Marcovici and Worthington, is not
sufficient to justify systematically failing to engage with
adverse evidence.

First, Dr. Saris supports his conclusion, in

part, by explaining that success rates for the kind of surgery
Ms. Petrone underwent are “extremely high, and unless someone has
an adverse complication such as a diskitis, the surgery is
curative and should leave no meaningful neurologic abnormality.”
However, the percentage of successful surgeries is of no moment
if Ms. Petrone, herself, has suffered some disabling residual
effect.

More fundamentally, of the more than 12 doctors to

examine Ms. Petrone, all but Dr. Saris concluded that she would
be limited to, at most, “light” work.

Dr. Saris, by contrast,

contended that “[s]he has long since recovered from [her
operation], and is ready to return to work without restrictions
of any kind.
health.”

Such a return would in no way be injurious to her

Absent some compelling explanation for this stark

inconsistency with all of the other evidence of record, it is
unreasonable to use Dr. Saris’s single report to discredit all of
the other consistent evidence in support of Ms. Petrone’s
disability claim.

It is an abuse of discretion to credit a

report with such “palpable bias in favor of rejecting the claim.”
Conrad v. Reliance Standard Life Ins. Co., 292 F. Supp. 2d 233,
238-39 (D. Mass. 2003).

Dr. Saris’s approach evidences such

bias.
34

4. Failure to address the Social Security ALJ Decision
Meaningfully
The Plan required Ms. Petrone to apply for Social Security
Disability benefits as a condition of the Plan.

Yet, the Final

Determination letter purports to dispose of the ALJ’s favorable
decision on three bases, stating that it (1) is not binding on
the LTD Plan, (2) relied on different medical evidence of Ms.
Petrone’s conditions, and (3) was based on a different definition
of disability.

The Plan does not distinguish the substance of

the medical evidence underlying the ALJ’s decision, despite the
fact that it is also identified in the Administrative Record.
The Plan is, of course, correct that the Social Security
Administration’s decision is not binding, see Boardman
v. Prudential Ins. Co. of Amer., 337 F.3d 9, 14 n.4 (1st Cir.
2003) (“[I]t is well-established that ‘benefits eligibility
determinations by the Social Security Administration are not
binding on disability insurers.’”) (quoting Cook v. Liberty Life
Assurance Co., 320 F.3d 11, 16 n.5 (1st Cir. 2003)).

But the

reasoning of the Social Security Administration’s determination
cannot simply be ignored.

See id. at 398 (“SSA determinations

are often instructive but they are not determinative.”) (emphasis
added); see also Montour v. Hartford Life & Acc. Ins. Co., 588
F.3d 623, 636 (9th Cir. 2009) (“[A] proper acknowledgment of a
contrary SSA disability determination would entail comparing and
contrasting not just the definitions employed but also the
35

medical evidence upon which the decisionmakers relied.”).

The

ALJ’s decision is further record evidence of Ms. Petrone’s
disability and a reasonable determination must address the
substance of the decision, not merely whether it is binding.
That the ALJ relied on different evidence than that before
the Corporate Benefits Committee deciding Ms. Petrone’s appeal
does not absolve the Committee of the responsibility to address
the evidence that the ALJ did consider, such as assessments from
Drs. Marcovici and Dominguez.

See id.

This is especially true

because the Final Determination letter ignores this same evidence
in the Plan’s own administrative record.
III(A)(1).

Supra Section

Different evidence does not necessarily lead to a

different determination.

Therefore, the Plan abused its

discretion by arbitrarily deciding that the differing evidence
before the ALJ rendered his decision irrelevant to Ms. Petrone’s
appeal.
Finally, the Plan distinguishes the definition of “Total
Disability” in the LTD Plan: “the complete inability of the
Participant, to perform any job for which the Participant is (or
may reasonably become) . . . qualified” (emphasis in original),
from the definition of disability for purposes of the Social
Security Administration: “the inability to engage in any
substantial gainful activity.”
added).

20 C.F.R. § 404.1505(a) (emphasis

In the First Circuit, a Social Security Administration
36

decision “should not be given controlling weight . . . except
perhaps in the rare case in which the statutory criteria are
identical to the criteria set forth in the insurance plan.”
Pari-Fasano v. IIT Hartford Life & Accident Ins. Co., 230 F.3d
415, 420 (1st Cir. 2000); Richards v. Hewlett-Packard Corp., 592
F.3d 232, 240 (1st Cir. 2010).
In Richards, the Court rejected the claimant’s argument of
comparability because the SSA’s determination provided that the
claimant “retains the residual functioning capacity for less than
a full range of sedentary work activity” while under his plan, he
must prove that “he is disabled from all sedentary work.”
Richards, 592 F.3d at 240 (emphasis in original).

However, in

this case, the definitions are much more closely aligned.

The

SSA found that Ms. Petrone is unable “to engage in any
substantial gainful activity” (emphasis added) and the Plan
requires that she be unable “to perform any job,” (emphasis in
original).

Although the wording is different, the Defendant

articulates no meaningful difference between these standards.
The Final Determination letter identifies the semantic difference
between “job” and “gainful activity,” and notes that the SSA must
take age into account, whereas the Plan need not.

The plan does

not explain how “job” is different from or somehow to be
distinguished from

“gainful activity.”

While these definitions

may appear semantically distinct, they are functionally
37

identical.

Cf. Ladd v. ITT Corp., 148 F.3d 753 (finding “unable

to engage in any and every duty pertaining to any occupation or
employment for wage or profit for which you are qualified, or
reasonably qualify by training, education or experience” to be
“the same thing as under the social security disability
program”).

I find the LTD Plan’s analysis of the ALJ’s decision

arbitrary and capricious in its failure to engage with the
evidence developed in the SSA proceeding, particularly in light
of the comparability of the standards applied in the two
proceedings.
Although the LTD Plan addresses some of these sources of
contrary evidence in its own 56.1 statement of uncontroverted
facts and its response to Ms. Petrone’s 56.1 statement, that is
too little too late.

This case is a challenge to the LTD Plan’s

denial of her final appeal in the Final Determination letter
under § 1132(a)(1)(B), and the letter fails to provide any
reasonable justification for disregarding voluminous
contradictory evidence.2
Ms. Petrone’s final argument, that the LTD Plan abused its
discretion in determining that she does not exhibit “the complete
inability . . . to perform any job,” because it never mentions a
single job for which she would be qualified, is unpersuasive.
The medical professionals and administrators of the Plan need not
indicate specific jobs to determine that Ms. Petrone is capable
of some job. Pari–Fasano, 230 F.3d at 421 (“[N]o physician or
other person proceeded to speculate or investigate and report on
actual particular positions that would be appropriate for
appellant to fill, but in light of the medical evidence and in
conclusion of the reviewing physicians such a job-specific
2

38

Although the Final Determination letter arbitrarily
disregards evidence of Ms. Petrone’s disability, that evidence is
not so overwhelming as to compel summary judgment in favor of Ms.
Petrone.

The record contains significant evidence in support of

both Ms. Petrone’s position and that of the LTD Plan.

In this

case, I deny the LTD Plan’s motion for summary judgment, not
because Ms. Petrone is “clearly entitled” to the benefits she
seeks, but because of deficiencies in “the integrity of [the
Plan’s] decision making process.”

Buffonge v. Prudential Ins.

Co. of Amer., 426 F.3d 20, 31 (1st Cir. 2005).

I will therefore

deny Ms. Petrone’s motion for summary judgment as well.
B.

The Administrative Rationale for Claim Denial
The Plan also claims that it can independently deny Ms.

Petrone’s final appeal because she failed to “cooperate with
respect to the evaluation of . . . her Total Disability.”

The

Plan provides that failure to cooperate with evaluation shall be
grounds for terminating LTD benefits.
This provision is not buried in fine print or in some
obscure section of the Plan.

Rather, the Plan repeatedly

emphasizes that the claimant must cooperate with evaluations.
Reed Group also emphasized this point with Ms. Petrone in its
December 16, 2008 letter, notifying Ms. Petrone of her scheduled
FCE with Ms. McClusky and her IME with Dr. Saris.
laundry list hardly seems necessary.”).
39

The letter

states “[N]o benefit under this Plan shall be payable . . . [if
Participant] fails or refuses to cooperate with respect to the
evaluation.” (emphasis in original).
Because the Corporate Benefits Department has the authority
to “[e]xercise discretion in making determinations of fact [and]
interpreting the terms of the Plan,” I must uphold the Plan’s
decision if it is reasoned and there is substantial evidence in
the record that Ms. Petrone did not cooperate with Reed Group’s
evaluation of her disability.

See Vlass 244 F.3d at 30.

Ultimately, I find that the LTD Plan’s failure properly to engage
with the evidence fatally undermines its conclusion that Ms.
Petrone violated the provision of the plan requiring her to
cooperate with testing.
The Administrative Record does contain some evidence that
Ms. Petrone did not cooperate fully with her evaluations.

Ms.

McClusky noted that Ms. Petrone exhibited “[n]o signs of maximum
effort” during a “grip and pinch dynamometry” and that she
demonstrated “fair effort” overall.

In response to further

inquiry by Reed Group, Ms. McClusky expounded that “at least some
degree of malingering was present during today’s FCE.” (emphasis
in original).

Ms. Ferguson noted that Ms. Petrone “demonstrated

self limiting behavior during the lift testing.”

Finally, Dr.

Saris noted “one of the Waddell signs of symptom exaggeration” ,
I have already, of course, addressed the issues with Dr. Saris’s
40

report above, see supra Section III(A)(3).

Ms. Ferguson also

noted that Ms. Petrone was “cooperative throughout testing” (id.
at 602), and Dr. Saris qualified his observation by saying there
was no “generalized overreaction.”
The Final Determination letter expressly relies on this
evidence of self limitation in its decision, stating “[i]n
addition, and separately, no rationale has been given for Ms.
Petrone’ failure to fully cooperate with both the November 2008
and November 2009 FCEs.

Therefore, Ms. Petrone is no longer

eligible for continued LTD benefits.”

The Plan is entitled to

construe the meaning of “fails or refuses to cooperate” for
purposes of the agreement, at least within the appropriate bounds
of its discretion.

However, the letter does not address the

qualifications regarding Ms. Petrone’s purported failure to
cooperate, including by Ms. Ferguson, Dr. Saris, and Ms. McClusky
in their reports.
Additionally, Ms. Petrone submitted a report by occupational
therapist David Bledsoe, who challenged Ms. McClusky’s “casual”
use of the term “malingering,” which, he asserts, is a diagnosis
defined by the DSM-IV, not an action.

He further states that a

physical therapist may be qualified to issue a differential
diagnosis, but likely not one of malingering.

The Final

Determination letter addresses Mr. Bledsoe’s report on the
merits.

Indeed, it states that “Mr. Bledsoe’s assessment is not
41

inconsistent with the conclusion reached by Dr. DiTullio . . .
that light duty was not appropriate for Ms. Petrone, but that Ms.
Petrone was capable of sedentary duty work.”

But the letter

fails to address Mr. Bledsoe’s challenge to the suggestion of
malingering by Ms. McClusky.
I find that summary judgment is not appropriate in this case
on the basis of an administrative denial, where “the integrity of
[the Plan’s] decision making process” is in question.
426 F.3d at 31.

Buffonge,

To be sure, an actual malingering diagnosis is

not a requirement for the Plan to deny Ms. Petrone’s appeal.
That she failed to cooperate - reasonably construed - with
testing will suffice.

Nevertheless, the LTD Plan’s systematic

failure to consider contradictory evidence in the medical
analyses in the record undermines its attempt to justify denial
of Ms. Petrone’s application for benefits for failure to
cooperate.

The Final Determination letter does not address Ms.

Ferguson’s statement that Ms. Petrone was “cooperative throughout
testing” or the fact that Dr. Saris observed only one of the
various Waddell signs of symptom exaggeration.

To determine

reasonably that Ms. Petrone was so uncooperative during testing
as to justify denying her long term disability benefits, the LTD
Plan must engage in a more reasoned and fullsome way with the
evidence in the record.

Especially where the question of

malingering is so central to the administrative denial for
42

failure to cooperate, the LTD Plan language may not be construed
in such a fashion as to permit the plan to rely on the breadth of
its discretion to shield it from challenges such as this where
the plan administrator failed to appropriately engage with the
evidence presented.

Winkler, 170 F. App’x at 168 (“An

administrator . . . may not, as MetLife did here, cherry-pick the
evidence it prefers while ignoring significant evidence to the
contrary.”).
I recognize that a decision from the Middle District of
Florida has held the Pension Committee of Johnson & Johnson did
not abuse its discretion finding that another claimant violated
the cooperation provisions by her failure to “put forth her best
effort during the IME.”

Smith v. Pension Comm. of Johnson &

Johnson, No. 09-cv-1042, 2010 WL 4534952, *4,*7 (M.D. Fla. Oct.
29, 2010).

(“While the Court may find that the decision to

terminate the LTD benefits . . . on the basis of failure to
cooperate in one IME exam was harsh, it was within Defendant’s
rights under the Plan, did not ignore relevant information
provided by Plaintiff, and was based upon reasons supported by
evidence in the record.”)

However, in that case, the court held

that the LTD Plan “did not ignore relevant information provided
by Plaintiff.”

Id. at *7.

The same is not true here.

While the

LTD Plan addressed Mr. Bledsoe’s assessment, it did not address
the contrary evidence in the very reports it cites in support of
43

its administrative denial.

Where, as here, a plan administrator

fails to reasonably engage with contrary evidence in the record,
summary judgment is not appropriate.
*

*

*

A District Court has the power to remand a case to the plan
administrator following de novo review where “the integrity of
[the Plan’s] decision making process” is in question.
426 F.3d at 31; see also 29 U.S.C. § 1132(a)(3).

Buffonge,

Ms. Petrone is

entitled to “have the benefit of an untainted process.”
Buffonge, 426 F.3d at 31.

I will therefore remand to the plan

administrator for further proceedings consistent with this
opinion.
IV.

CONCLUSION

For the foregoing reasons, I DENY the LTD Plan’s motion for
summary judgment (Dkt. No. 20) and Ms. Petrone’s cross-motion for
summary judgment (Dkt. No. 22), and I REMAND to the plan
administrator for further proceedings consistent with this
opinion.

Defendant’s motion to strike (Dkt. 34) and Plaintiff’s

motion for discovery (Dkt. 27) are DENIED.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT

44