Smith-Emerson v. Citizens Financial Group, Inc. et al

Filing 35

ORDER denying 22 Motion for Judgment on the Administrative Record; granting 25 Defendant's Motion for Judgment on the Administrative Record. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nicole Smith-Emerson
v.

Civil No. 14-cv-120-PB
Opinion No. 2015 DNH 224

Liberty Life Assurance
Company of Boston
MEMORANDUM AND ORDER
Nicole Smith-Emerson sued Liberty Life Assurance Company of
Boston (“Liberty”) under § 502(a)(1)(B) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), challenging
Liberty’s decision to terminate her long-term disability
benefits.

In April 2015, I denied Smith-Emerson’s request for

de novo review of Liberty’s termination decision, and instead
determined that the decision would be judged by the more
deferential “arbitrary and capricious” standard of review.
No. 18.

Doc.

Both parties have now filed motions for judgment on the

administrative record.

For the reasons that follow, I grant

Liberty’s motion for judgment on the administrative record.

I.

BACKGROUND

Nicole Smith-Emerson, a 45-year old Concord woman, was
struck in the head with a soccer ball in October 2008.1
1

Doc. No.

The parties have submitted a comprehensive joint statement of

14 at 3.

That blow created a host of medical problems for

Smith-Emerson that ultimately led her to quit her job, seek
disability benefits, and file suit in this court when her
benefits were terminated.
From March 2008 until December 2011, Smith-Emerson worked
as a loan officer for Citizens Bank in Concord.

Her job as a

loan officer involved mostly sitting and typing, but also
occasional driving, walking and lifting 10 pounds or less.
No. 14 at 1.

Doc.

In an Occupational Analysis Report, vocational

rehabilitation counselor Bonnie Huggins characterized SmithEmerson’s occupation as “sedentary” or “light physical demand.”2
Id. at 13.
As a Citizens employee, Smith-Emerson was entitled to
disability benefits under the bank’s employee benefits policy
(the “Plan”), should she become “disabled.”

Id. at 2.

The Plan

material facts pursuant to Local Rule 9.4(b). Doc. No. 14.
Here, I recite only those facts necessary to put this order in
context.
Huggins’ report described “sedentary” work as “exerting up to
10 pounds of force occasionally . . . and/or a negligible amount
of force frequently” and “involv[ing] walking or standing for
brief periods of time.” AR 733-34. “Light” work was described
as “exerting up to 20 pounds of force occasionally, and/or up to
10 pounds of force frequently . . . and/or a negligible amount
of force constantly.” AR 734.
2

2

defined “disabled” to mean “unable to perform the Material and
Substantial Duties of [one’s] Own Occupation” due to “Injury or
Sickness.”

Id.

Liberty funds and administers Citizens’ Plan.

Id.
In December 2011, due to ongoing neck pain and other
complications, Smith-Emerson left her job and filed a claim with
Citizens for long-term disability benefits.

Id. at 3.

Liberty

granted her short-term disability benefits until July 2012, when
it began paying her long-term disability benefits under a
“reservation of rights.”3

Id. at 18.

Between 2011 and 2014, Smith-Emerson saw a myriad of
doctors to treat her pain.

Neurosurgeon Tung Nguyen performed

surgery on Smith-Emerson’s neck in October and November 2011,
and continued to treat her neck pain over the next two years.
See id. at 3-5, 7.

On December 8, 2011, Dr. Nguyen signed a

“restrictions form” stating that Smith-Emerson was unable to
work on a full-time basis.

Id. at 4.

Soon after, however, on

December 20, 2011, Dr. Nguyen signed another form indicating

The reservation of rights letter indicated that Liberty’s
granting of benefits “should not be interpreted as an admission
of present or ongoing liability” and that “further clarification
is needed to assess [Smith-Emerson’s] level of functional
capacity.” AR 598-99.
3

3

Smith-Emerson could work in a full-time “sedentary” capacity.
Id. at 4-5.

Four months later, in March 2012, Dr. Nguyen stated

that Smith-Emerson would likely need a four-to-six month leave
of absence from work due to pain and numbness in her “upper
extremity” and the fingers of her left hand.

Id. at 7.

Also in March 2012, Smith-Emerson consulted with six more
medical professionals: Dr. John Chi, APRN Martha PorfidoBellisle, Dr. Andrew Jaffe, APRN Steve Arvin, Dr. Matthew
Vestal, and Dr. Mildred LaFontaine.

Id. at 7-9.

At these

consultations, Smith-Emerson complained of neck pain and muscle
spasms.

Id.

She also reported tailbone pain.

Id. at 8.

Dr.

Vestal stated that when examined, Smith-Emerson was “[u]nable to
flex and extend, pitch, yaw and roll [her] neck” on command but
was “easily able to fully range neck” when “distracted by other
tasks.”

Id. at 9.

None of these doctors stated whether Smith-

Emerson would be capable of working at that time.
In April 2012, Smith-Emerson completed an “Activities
Questionnaire” at Liberty’s request.

She stated that she “spent

most of the day in bed . . . because of pain,” “was able to sit,
stand or walk for only less than an hour a day,” and loved to
garden but was “unable to do so at this time because of [her]
injury.”

Id. at 10.

Also in April 2012, Smith-Emerson again
4

saw Dr. Nguyen, who reported that she “appears quite
comfortable, despite verbalizing severe neck pain.”

Id. at 11.

Dr. Nguyen signed a restrictions form indicating that SmithEmerson could perform light-duty work on a full-time basis.

Id.

at 12.
Days later, Smith-Emerson received care from chiropractor
Melissa Savicky.

Id.

Smith-Emerson reported to Dr. Savicky

that she had not gotten out of bed the previous Saturday due to
severe pain.

Id.

During the appointment, Smith-Emerson

apparently went into full-body spasms upon light touch.

Id.

Despite this, Dr. Savicky signed a restrictions form indicating
that Smith-Emerson could perform sedentary work on a full-time
basis, with some restrictions.

Id.

In May 2012, Smith-Emerson visited Dr. Robert Spencer to
address her ongoing complaints of pain.

Id. at 13.

Dr. Spencer

diagnosed Smith-Emerson with “definite” headaches, neck, and
back pain, “possible cervical radiculitus,” “possible
lumbosacral radiculitus,” and “possible extremity pain.”

Id. at

13-14.
In May 2012, Liberty hired a private investigative firm,
New England Risk Management (“NERM”), to conduct video
surveillance of Smith-Emerson.

Id. at 15.
5

NERM issued a report

indicating that Smith-Emerson was observed on several days in
May 2012 “raking grass and dirt in her yard using both hands,
bending without restriction, moving quickly without restriction
or outward signs of pain, scooping grass and dirt into a trash
bag, lifting and carrying the bag, and squatting,” among other
outdoor activities.

Id.

In June 2012, Smith-Emerson was seen by APRN Kim Keaton,
who prescribed pain medication and indicated “no work for now.”
Id. at 14.

Keaton also reported that Smith-Emerson had “chronic

neck pain” but appeared to be “well-developed, well-nourished,
[and] in no acute distress.”

Id. at 17.

Also in June 2012, Dr. Philippe Chemaly submitted a report
based on his review of Smith-Emerson’s medical file.

Id. at 15.

On June 8, 2012, before receiving NERM’s surveillance videos,
Dr. Chemaly indicated that Smith-Emerson likely suffered from
“cervical radiculitus,” but not “cervical radiculopathy” or
“lumbar radiculitus.”

Id.

He also stated that Smith-Emerson’s

reports of chronic pain and weakness were likely true based on
his review of Dr. Nguyen’s reports.

Id. at 15-16.

Dr. Chemaly

concluded that, given his review of the medical documentation,
Smith-Emerson would be able to “return to work in a sedentary
position.”

Id.
6

A week later, however, on June 15, 2012, Dr. Chemaly
revised his opinion, issuing an addendum to his report that
addressed the video surveillance showing Smith-Emerson doing
yard work.

Id. at 16-17.

In his addendum, Dr. Chemaly stated

that Smith-Emerson’s “ability to lift, squat, bend, stoop, lift,
carry, and open and close vehicle doors” was “directly
inconsistent” with Smith-Emerson’s “reported functional
capacity.”

Id. at 16.

In light of the video footage, Dr.

Chemaly concluded that Smith-Emerson could work “at minimum in a
light duty setting in a permanent eight hour day full time work
position.”

Id.

In July 2012, APRN Keaton stated that, based on her inoffice observations of Smith-Emerson, Keaton did not “disagree
with a sedentary position in a full duty work capacity.”
17-18.

Id. at

Keaton also indicated that she would like to continue

with pain medication to see if Smith-Emerson’s condition would
improve.

Id.

In October, November, and December 2012, Smith-Emerson was
seen by Steven Toscano, PA-C.

Id. at 20-21.

Smith-Emerson

reported that her pain was a “constant” 9 to 10 out of 10, and
that daily tasks like driving, sitting, standing, and walking
aggravated her pain symptoms.

Id. at 20.
7

Upon examination,

Toscano found Smith-Emerson to be in “no acute distress” and
prescribed pain medications.

Id.

On November 30, 2012, Toscano

indicated that Smith-Emerson was “unable to work.”

Id. at 21.

A month later, APRN Keaton agreed, stating that Smith-Emerson
was unable to “resume any type of work at this time.”

Id.

In February and March 2013, NERM took more video
surveillance of Smith-Emerson, who was observed driving,
entering a tanning salon, climbing over snowbanks, and “walking
quickly in a fluid manner,” among other activities.

Id. at 22.

In April 2013, Smith-Emerson filled out another “Activities
Questionnaire” stating that she spent “most of her day” in bed,
only left the house for medical appointments, went outside “not
even once a week,” and could not use a computer.

Id. at 24.

She reported that she could “barely move” and that her pain was
“10 out of 10 all the time.”

Id.

From February to May 2013, Smith-Emerson saw psychologist
Rebecca S. Johnston.

Id. at 21-24.

Dr. Johnston reported that

Smith-Emerson was experiencing pain and muscle spasms, and that
Smith-Emerson said she spends “most of the day in bed.”
21-22.

Id. at

Dr. Johnston indicated that Smith-Emerson appeared to be

“only comfortable lying down” and that “staying out of bed is
her major goal at present.”

Id. at 24.
8

In April 2013, Smith-Emerson saw Dr. David Tung for neck
and arm pain.

Id.

Dr. Tung indicated that Smith-Emerson

suffered from Complex Regional Pain Syndrome/Reflex Sympathetic
Dystrophy, and signed a restrictions form stating that SmithEmerson could perform sedentary work on a full-time basis,
although her return to work was “uncertain at that time.”

Id.

at 24-25.
In August 2013, unrelated to the Liberty policy, the Social
Security Administration (“SSA”) approved disability benefits for
Smith-Emerson.

Id. at 26.

The approval notice indicated that

Smith-Emerson had become disabled in December 2011, but did not
provide detail on the SSA’s basis for its conclusion.

Id.

That same month, at Liberty’s request, Dr. David Monti
issued a medical report after reviewing Smith-Emerson’s file.
Id. at 27.

Dr. Monti’s report stated that, from December 2011

to May 2012 Smith-Emerson would have had a “less than sedentary
capacity” due to neck pain.

Id.

Since that time, however, Dr.

Monti indicated that Smith-Emerson would have “at least a light
duty work capacity,” as demonstrated by videos of her performing
multiple activities, including yard work.

Id.

PA-C Toscano

disagreed with Dr. Monti’s light duty work classification,
however, stating that he thought Smith-Emerson still needed to
9

be in “sedentary work classification” because she had Complex
Regional Pain Syndrome (CPRS).

Id.

Also in August 2013, two more professionals gave opinions
regarding Smith-Emerson’s capacity to work.

APRN Keaton

indicated that she did not “disagree with a sedentary position
in a part time duty work capacity,” but stated that SmithEmerson’s “pain issues and limited range of motion with her neck
and left arm continue to be prohibitive for return to work.”
Id. at 28.

In addition, neurosurgeon Henry Pallatroni, who had

evaluated Smith-Emerson the previous month, signed a
restrictions form indicating that she was “completely disabled.”
Id.
Later in August 2013, another private investigative firm,
ACI Investigative Group, issued a report concerning additional
surveillance of Smith-Emerson.

Id. at 28-29.

According to the

report, Smith-Emerson was observed earlier in August doing more
yard work, walking on a treadmill at a gym; driving to a
department store, shopping, and carrying two large plastic bags
to her car; carrying grocery bags; taking a vehicle for a test
drive; sitting by a pool; and generally going about her business
without visible restrictions on her movement.

Id.

Liberty

submitted this surveillance to Dr. Monti, who stated that there
10

were “inconsistencies” between Smith-Emerson’s activities
questionnaire and the surveillance.

Id. at 29-30.

Dr. Monti

pointed out that Smith-Emerson claimed in her questionnaire to
be in bed all day and suffer debilitating pain, but was “very
active” in the videos and did not appear to have a restricted
range of motion.

Id.

He concluded that Smith-Emerson would

have “at least a light duty work capacity” and “thus would be
able to work in a sedentary capacity that is sustained during
this time.”

Id. at 30.

On September 5, 2013, Liberty informed Smith-Emerson by
letter that it was terminating her long-term disability benefits
because she no longer met the Plan’s definition of “disability.”
Id. at 31.

Liberty noted that although Smith-Emerson likely had

“chronic pain,” her reported pain was inconsistent with video
surveillance taken of her.

AR 188-198.

The letter quoted

extensively from surveillance reports of Smith-Emerson
gardening, shopping, and walking on a treadmill.

Id.

It stated

that, although Smith-Emerson’s treating providers indicated that
she was “totally disabled,” Liberty’s review of the medical and
non-medical evidence suggested that she could perform the duties
of a Loan Officer on a full-time basis.

AR 197.

The letter

informed Smith-Emerson that she had the right to request a
11

review of the denial from Liberty and provided details on how to
do so.

Id.

Soon after the denial letter, on September 17, 2013, SmithEmerson saw a physical therapist, Rachel Heath.
31.

Doc. No. 14 at

Heath reported that Smith-Emerson demonstrated “less than

maximal physical effort during physical testing,” but that
testing showed that Smith-Emerson could perform basic functions
like walking, standing, sitting, and making repetitive motions
frequently.

Id.

Heath concluded that Smith-Emerson could

“work/function part-time, 2-4 hours/day and 5 days/week at a
sedentary capacity,” provided she change positions every 15-20
minutes.

Id.

On September 26, 2013, Dr. Tung similarly

concluded that Smith-Emerson is “in the sedentary work class
classification and is able to work at least part-time for 20-25
hours per week in 4 hour shifts.”

Id. at 31-32.

A month later, on October 23, 2013, Smith-Emerson started a
new part-time job as a Marketing Representative for Horizon
Settlement Services.

Id. at 32.

She worked at Horizon until

April 2014, when she states that her “hours were cut back
gradually because of [her] pain.”

Doc. No. 28-1 at 1.

On November 27, 2013, Smith-Emerson, assisted by counsel,
requested a review of Liberty’s denial decision.
12

Doc. No. 14 at

33.

Smith-Emerson’s request stated that she suffered from

Complex Regional Pain Syndrome and highlighted her continued
pain, headaches, complications from neck surgeries, and weakness
in limbs and hands.

AR 92-104.

It also addressed aspects of

the video surveillance and challenged certain characterizations
of Smith-Emerson’s activities.4

AR 101-02.

On January 20, 2014, Dr. Steven Lobel issued a report for
Liberty after reviewing Smith-Emerson’s medical file.
14 at 34.

Doc. No.

Dr. Lobel concluded that Smith-Emerson could sustain

a full-time work capacity, with certain restrictions like
sitting only 60 minutes at a time and not using ladders or
lifting more than 40 pounds.

Id.

He noted the inconsistencies

between Smith-Emerson’s reports that she spent most of the day
in bed and the videos showing her leading an apparently active
lifestyle.5

See id. at 35.

For example, Smith-Emerson did not dispute that the video
depicted her pulling weeds from her front lawn, but stated that
the “weeds and dead flowers around the mailbox were minimal and
did not require more than a few easy pulls with her right hand.”
AR 101. “This hardly qualifies as gardening,” she wrote. Id.
Likewise, Smith-Emerson stated that the shopping bags that she
was observed carrying contained pillows, and she was carrying
them in her right hand, not her “impaired left.” Id. On a
subsequent day, the bags she was seen carrying held “hamburger
and hot dog rolls and chips,” which were only “lightweight
items” that she carried with her right hand. Id.
4

5

Dr. Lobel noted that there was “a complete discordance between
13

The next day, January 21, 2014, Liberty sent a letter
reaffirming its previous termination decision and denying SmithEmerson’s appeal.

Id.

The letter, from Liberty Appeals

Consultant Kimberly Murray, referenced the opinions of Dr. Monti
and Dr. Lobel, both of whom had concluded that Smith-Emerson was
capable of working in a sedentary or light work capacity.
49-54.

AR

It noted that Liberty had spoken with PA-C Toscano and

had reviewed the medical opinion of Dr. Pallatroni (who had
previously indicated Smith-Emerson was “completely disabled”).
AR 51.

It also highlighted the video surveillance and indicated

that it had considered – but ultimately disagreed with – the
SSA’s conclusion that Smith-Emerson was disabled.

AR 53.

That

letter terminated Liberty’s internal review of Smith-Emerson’s
claim.
The next month, February 2014, Smith-Emerson brought an
ERISA claim against Liberty in Merrimack County Superior Court,
challenging Liberty’s determination that she was not “disabled.”
Doc. No. 1.

Liberty removed the case to this Court.

Id.

In

May 2015, I rejected Smith-Emerson’s motion for de novo review
and ruled that her claim would be subject to deferential

the imaging, exams, EMGs, treatments, and surveillance.”
No. 14 at 35.
14

Doc.

“arbitrary and capricious” review.

Doc. No. 18.

The parties

then filed cross-motions for judgment on the administrative
record.6

Doc. Nos. 22, 25.
II. STANDARD OF REVIEW

In her motion for judgment on the administrative record,
Smith-Emerson attached several exhibits that were not part of
the administrative record. Doc. No. 22. One of these exhibits,
an affidavit from Smith-Emerson, noted that a woman seen jogging
in one of the surveillance videos was not Smith-Emerson, but
rather Smith-Emerson’s neighbor. Doc. No. 22-6. In response,
Liberty filed its own motion for judgment on the administrative
record and attached an updated medical report from Dr. Lobel –
an item also not in the administrative record. Doc. No. 25-2.
Liberty subsequently filed a motion to strike Smith-Emerson’s
“extra-administrative record evidence,” but asked that I retain
and consider its own supplementary exhibit. See Doc. No. 31.
In turn, Smith-Emerson filed an objection to Liberty’s motion to
strike. Doc. No. 34.
Generally, a party must show a “very good reason” to amend
the administrative record. Orndorf v. Paul Revere Life Ins.
Co., 404 F.3d 510, 519 (1st Cir. 2005). Here, however, I need
not determine whether the parties meet this standard because the
evidence submitted has no effect on the outcome of the case.
Although Smith-Emerson claims that Liberty “materially based”
its decision on the jogging video, see Doc. No. 34 at 1, this
argument is contradicted by the record. Private firms hired by
Liberty took hours of video surveillance of Smith-Emerson over a
number of days and submitted detailed reports to Liberty. In
its denial letters, Liberty quoted extensively from these
surveillance reports to support its termination of SmithEmerson’s benefits. See AR 49-54, 188-98. Neither letter,
however, mentions a video of Smith-Emerson jogging, let alone
indicates that surveillance of Smith-Emerson jogging contributed
to the denial decision. AR 49-54, 188-98. In light of the
substantial evidence supporting Liberty’s conclusion, the
“extra-administrative record” evidence is therefore not material
and I need not decide whether Smith-Emerson has advanced a “very
good reason” for me to consider it.
15
6

The standard of review in an ERISA case differs from that
in an ordinary civil case, where summary judgment is designed to
screen out cases that raise no trial-worthy issues.

See Orndorf

v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005).
“In the ERISA context, summary judgment is merely a vehicle for
deciding the case[,]” in lieu of a trial.

Bard v. Bos. Shipping

Ass'n, 471 F.3d 229, 235 (1st Cir. 2006).

Rather than consider

affidavits and other evidence submitted by the parties, the
court reviews the denial of ERISA benefits based “solely on the
administrative record,” and neither party is entitled to factual
inferences in its favor.

Id.

Thus, “in a very real sense, the

district court sits more as an appellate tribunal than as a
trial court” in deciding whether to uphold the administrative
decision.

Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir.

2002).
Where, as here, an ERISA benefits plan gives its
administrator discretion to decide whether an employee is
eligible for benefits, “the administrator's decision must be
upheld unless it is arbitrary, 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
punctuation omitted).

This standard is “generous” to the
16

administrator, but “is not a rubber stamp.”

Wallace v. Johnson

& Johnson, 585 F.3d 11, 15 (1st Cir. 2009). The administrator's
decision must be “reasoned and supported by substantial
evidence.”
Cir. 2009).

Medina v. Metro. Life Ins. Co., 588 F.3d 41, 45 (1st
“Evidence is substantial if it is reasonably

sufficient to support a conclusion.”

Stamp v. Metro. Life Ins.

Co., 531 F.3d 84, 87 (1st Cir. 2008).

“Evidence contrary to an

administrator's decision does not make the decision
unreasonable, provided substantial evidence supports the
decision.”

Wright, 402 F.3d at 74.

III.

ANALYSIS

Smith-Emerson sues under ERISA § 502(a)(1)(B), which allows
participants in certain benefits plans to bring civil actions to
“recover benefits due to [them] under the terms of [their]
plan.”

29 U.S.C. § 1132(a)(1)(B).

Smith-Emerson argues that

Liberty’s decision to terminate disability benefits was
arbitrary and capricious, and requests either judgment in her
favor based on the administrative record or a remand to Liberty
to reconsider its decision.
Smith-Emerson presents four principal arguments.

First,

she argues that Liberty’s reliance on Dr. Monti’s medical
17

opinion was essentially erroneous.

Doc. No. 22-1 at 4.

Second,

Smith-Emerson contends that Liberty could not permissibly
conclude that she was disabled and grant her benefits in June
2012, and then reverse its decision and terminate benefits in
September 2013 based on the same evidence.

Id. at 4-5.

Third,

she claims that Liberty wrongfully based its decision on video
surveillance without making that surveillance available to
Smith-Emerson or her medical providers.

Doc. No. 28 at 3.

Finally, Smith-Emerson argues that an overall review of SmithEmerson’s medical history shows that she has CRPS, is disabled,
and is unable to work as a loan officer.

Doc. No. 22-1 at 9-28.

I address, and ultimately reject, each argument below.
A.

Dr. Monti’s Medical Opinion
Smith-Emerson challenges Liberty’s reliance on Dr. Monti’s

medical opinion in its first denial letter.

She essentially

advances two points: (1) Dr. Monti recommended that SmithEmerson receive an independent medical examination (“IME”), but
Liberty never requested one; and (2) Dr. Monti ignored certain
opinions of Smith-Emerson’s doctors in concluding that she could
work in a sedentary or light-duty job.

These arguments are

unpersuasive.
First, the record contradicts Smith-Emerson’s claims that
18

Liberty “ignore[d]” Dr. Monti’s recommendation for an IME.
Doc. No. 22-1 at 5.

See

Rather, in its January 2014 appeal

decision, Liberty stated that it sent Smith-Emerson’s file to
Dr. Lobel for an “independent medical review.”

AR 52.

Dr.

Lobel reviewed Dr. Monti’s opinions and supplemented them with
his own, ultimately concluding that Smith-Emerson could sustain
a full-time work capacity with certain restrictions.

AR 52-53.

More fundamentally, Smith-Emerson received numerous
independent medical evaluations in the months leading up to
Liberty’s decision.

Smith-Emerson saw over twenty medical

professionals during a period of two years, the vast majority of
whom Smith-Emerson herself retained.

See generally Doc. No. 14.

Several of these medical professionals – again, retained by
Smith-Emerson – concluded that she could work in a sedentary
classification.7

See id. at 4-5 (Dr. Nguyen); 25, 31-32 (Dr.

Tung); 12 (Dr. Savicky); 17-18, 28 (APRN Keaton); 27 (PA-C
Toscano).

Liberty states that it reviewed the opinions of

Notably, Smith-Emerson does not appear to challenge Liberty’s
assertion that her occupation of Loan Officer is either
“sedentary” or “light physical demand.” See Doc. No. 14 at 13.
As such, the conclusions of several of Smith-Emerson’s doctors
that she could perform “sedentary” work appear only to undermine
her argument that she is incapable of performing the duties of a
loan officer.
7

19

Smith-Emerson’s providers, including four who concluded that she
could work in a sedentary position.

AR 49-54, 188-198.

Liberty

requested the opinion of one of these providers, PA-C Toscano,
and Dr. Monti responded to Toscano in his report.

AR 193, 196.

Liberty’s failure, therefore, to order yet another medical
review is simply insufficient to show that its ruling was
arbitrary and capricious.
Second, Smith-Emerson criticizes Dr. Monti’s conclusion
that she might have “reflex sympathetic dystrophy” (“RSD”) but
not CRPS.

See Doc. No. 22-1 at 4-5.

This argument does not,

however, explain why this diagnosis renders Liberty’s decision
arbitrary and capricious.

Indeed, Smith-Emerson’s own providers

appear to disagree about her exact diagnosis.

See Doc. No. 14

(showing various doctors concluding that Smith-Emerson suffered
from “possible cervical radiculitus,” “possible lumbosacral
radiculitus,” “chronic pain,” “chronic neck pain,” “reflex
sympathetic dystrophy,” and “failed neck syndrome,” among other
conditions).

Although several providers did conclude that

Smith-Emerson suffered from CRPS, others disagreed.

Compare id.

at 35 (Dr. Lobel) and AR 196 (Dr. Monti), with Doc. No. 14 at 27
(PA-C Toscano) and id. at 32 (Dr. Devanny).8
8

The fact that

Dr. Tung, noted that she suffered from “complex regional pain
20

Liberty’s doctor reviewed the wide variety of medical diagnoses
and chose one adequately-supported conclusion over another is
not unreasonable.

See Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (2003) (holding that “courts have no warrant
to require administrators automatically to accord special weight
to the opinions of a claimant's physician”).

Moreover, Smith-

Emerson makes no effort to show why a finding of RSD rather than
CRPS affects whether she is “disabled” within the meaning of the
Plan.
B.

As such, I reject her argument.

Liberty’s Termination of Benefits
Smith-Emerson argues that Liberty acted unreasonably in

granting Smith-Emerson disability benefits from December 2011
through September 2013, and then terminating those benefits
based on the same medical evidence.

See Doc. No. 22-1 at 4-6.

This argument is unpersuasive, however, because it ignores the
fact that Liberty initially paid benefits to Smith-Emerson under
a “reservation of rights,” and not a finding that she was
disabled.
None of Liberty’s initial correspondence with Smith-Emerson
indicated that she had a “disability” within the meaning of the

syndrome/reflex sympathetic dystrophy” – an indication that
these diagnoses are closely linked. Doc. No. 14 at 24.
21

Plan.

Liberty first approved Smith-Emerson’s request for Short

Term Disability benefits in December 2011.

AR 996.

As proof of

this, the record only contains an email from a Liberty employee
to Citizens with a short note indicating that Smith-Emerson’s
“claim” had been approved through January 2012.

Id.

The email

does not, however, state whether Smith-Emerson is “disabled” or
what condition she might have.

Id.

The record includes similar

emails extending benefits on a month-to-month basis until March
19, 2012, when Liberty sent a letter to Smith-Emerson requesting
more information to support her claim.
969, 986.

See AR 875, 877, 956,

The March 19 letter similarly does not indicate that

Liberty had found Smith-Emerson to be “disabled” under the Plan;
it only states that Short Term Disability benefits had been
approved through March.

AR 875.

In July 2012, Liberty sent a letter to Smith-Emerson
granting Long Term Disability benefits under a “Reservation of
Rights.”

Doc. No. 14 at 18.

That letter stated that Liberty

had made no final determination regarding Smith-Emerson’s
alleged disability.9

Id.

Following that letter, Liberty made no

The letter states: “Your level of impairment remains uncertain
therefore further clarification is needed to assess your level
of functional capacity. You will continue to receive benefits
during this review; however, this payment, or any future
payments, should not be interpreted as an admission of present
22
9

other statements concerning Smith-Emerson’s disability until it
terminated benefits in September 2013.
The evidence therefore does not support Smith-Emerson’s
assertion that Liberty initially found that she was disabled.
To the contrary, Liberty granted her initial Long Term
disability benefits under a carefully-worded reservation of
rights.

AR 598-99.

As such, Smith-Emerson’s contention that

Liberty arbitrarily reversed its own disability finding is
baseless because Liberty made no such initial finding.

I

therefore reject her argument.10
or ongoing liability.”

AR 598-99.

Smith-Emerson’s reliance on Cook and Fifield are similarly
misplaced. In Cook, Liberty relied primarily on the medical
opinion of a doctor to assess a claimant’s disability. For
months, that doctor advised that the claimant was disabled. See
Cook v. Liberty Life Assur. Co. of Bos., 320 F.3d 11, 14-16 (1st
Cir. 2003). Later, the doctor submitted a notice indicating
that the claimant could work 40 hours a week, and Liberty
terminated the claimant’s benefits. Id. at 16. Soon after, the
doctor realized that he had made a clerical error in filling out
a restrictions form, and promptly informed Liberty that his
initial opinion was erroneous, and that the claimant was in fact
disabled. Id. at 15-16. Liberty disregarded this updated
opinion, however, and ruled that the claimant was not disabled
without pointing to any contradictory medical evidence. Id. at
17. The First Circuit concluded that Liberty’s actions were
arbitrary and capricious because Liberty chose initially to
credit the doctor’s medical findings, but later reversed course
without any explanation or other substantial evidence
discrediting the doctor’s opinion. Id. at 23. Here, by
contrast, Liberty has not relied on the advice of one doctor,
but several doctors, many of whom concluded that Smith-Emerson
23
10

C.

Video Surveillance
Smith-Emerson next maintains that Liberty wrongfully based

its decision on video surveillance without making that
surveillance available to Smith-Emerson or her medical
providers.

See Doc. No. 28 at 3.

She argues that Liberty

“sandbag[ged]” her by only sending copies of the surveillance
videos after it made its termination decision.

Id.

This

argument is unpersuasive.
Although the record does show that Liberty provided the
videos to Smith-Emerson only after its initial September 2013
denial letter, Smith-Emerson had ample opportunity to review and
respond to the videos in its subsequent appeal.

In fact, the

record shows that Smith-Emerson did review the videos, and
actually submitted detailed rebuttals to the surveillance
findings to Liberty’s appeal unit.

See AR 100-102.

Moreover,

was capable of working, and has not credited favorable opinions
in the face of substantial evidence to the contrary.
Fifield is similarly inapplicable because it dealt with an
insurer who ruled that a claimant was disabled for one month,
but ceased to be disabled after that month, despite no evidence
to show that the disability had ceased. See Fifield v. HM Life
Ins. Co., 900 F. Supp. 2d 110, 114 (D.N.H. 2012). Here, unlike
Fifield, Liberty did not make a contradictory finding based on
the same evidence; rather, it granted initial benefits under a
reservation of rights and later exercised those rights to
terminate benefits.
24

Liberty sent the videos directly to Dr. Pallantroni and PA-C
Toscano in early September 2013, giving them sufficient time to
address the videos prior to the January 2014 appeal decision if
they wished.

AR 185-86.

Smith-Emerson’s claim is therefore

baseless.
D.

Smith-Emerson’s Disability

Finally, Smith-Emerson argues at length that she is,
contrary to Liberty’s conclusion, incapable of working as a loan
officer.

She provides extensive information on CPRS, her mental

health problems, and various doctors’ opinions of her medical
condition.

See generally Doc. No. 22-1.

Yet, her argument

misconstrues the nature of the motion before me.

My role is not

to review the wide range of medical evidence and determine
whether Smith-Emerson is physically capable of doing her job.
Rather, I must focus solely on the conclusion that Liberty has
already made – that Smith-Emerson could work – and ask whether
or not that decision was supported by “substantial evidence.”
See Medina, 588 F.3d at 45.

Where a decision is supported by

substantial evidence, I “must” uphold it, even in the face of
contrary evidence.

See id.; Stamp, 531 F.3d at 87.

Smith-Emerson’s arguments fail to persuade.

Liberty’s

decision to terminate benefits was supported by an array of
25

medical and non-medical evidence.

Each of Liberty’s reviewing

doctors – Dr. Chemaly, Dr. Monti, and Dr. Lobel – examined
Smith-Emerson’s voluminous medical records and concluded that
she was capable of working a full-time sedentary or light-duty
job.

Further, five of Smith-Emerson’s own treating providers

concluded, at various times, that Smith-Emerson was capable of
performing either a sedentary or light-duty job.11

Only one

doctor – Dr. Pallatroni – concluded that she was entirely
disabled and incapable of working, and he reached this
conclusion without reviewing the surveillance videos.12

See Doc.

No. 14 at 28.
The surveillance videos reinforce the conclusion that
Smith-Emerson is capable of working a sedentary or light-duty
Smith-Emerson appears to argue that the opinions of her
treating providers should be given more weight than Liberty’s
doctors, who merely reviewed her medical file. See Doc. No. 221 at 5. I note, however, that the First Circuit has “squarely
held that an insurer is not required to physically examine a
claimant, and that benefit determinations may be based on
reviews of medical records.” Richards v. Hewlett-Packard Corp.,
592 F.3d 232, 241 (1st Cir. 2010). Moreover, even if I accept
Smith-Emerson’s position, several of her own examining providers
concluded that she could work full-time in a sedentary capacity.
Doc. No. 14 at 3-4 (Dr. Nguyen); 12 (Dr. Savicky); 18-19 (APRN
Keaton); 25 (Dr. Tung); 27 (PA-C Toscano).
11

The record shows that Liberty sent copies of the surveillance
videos to Dr. Pallatroni in September 2013, but does not
indicate whether he commented on them or revised his opinion in
any way. See AR 185.
26
12

job.

In the videos, Smith-Emerson was observed gardening,

walking on a treadmill, shopping, and carrying bags, among other
activities.

Id. at 28-29.

Although she seeks to minimize these

observations, she does not refute them.

See AR 100-102.

Indeed, Smith-Emerson does not really address the wide
discrepancies between her reported activity – spending “most of
the day in bed” with debilitating pain – and the surveillance
showing her leading a generally active lifestyle.
No. 14 at 24 with id. at 28-29.

Compare Doc.

At a minimum, the videos lend

support to Liberty’s conclusion that she could perform a job
that requires mostly sitting, typing, and answering the phone.
See id. at 1, 13.
I need not present an exhaustive chronicling of the rest of
the evidence buttressing Liberty’s decision.

Under the

deferential standard of review applied here, my inquiry is
necessarily circumscribed.

The plaintiff must show that the

plan administrator’s decision was not supported by substantial
evidence, not merely that the evidence might allow a different
conclusion.

See Leahy, 315 F.3d at 18-19.

to carry her burden here.

Smith-Emerson fails

I therefore grant Liberty’s motion

for judgment on the administrative record.

27

IV.

CONCLUSION

For the reasons stated above, I grant Liberty’s motion for
judgment on the administrative record (Doc. No. 25) and deny
Smith-Emerson’s motion for judgment on the administrative record
(Doc. No. 22).
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
December 9, 2015
cc:

Charles G. Douglas, III, Esq.
William D. Pandolph, Esq.

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