BRADLEY v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
OPINION. Signed by Judge Robert B. Kugler on 6/21/2016. (dmr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LIBERTY LIFE ASSURANCE CO.,
Civil No. 15-387 (RBK/KMW)
KUGLER, United States District Judge:
This lawsuit stems from Defendant Liberty Life Assurance Company (“Defendant” or
“Liberty”) denying Plaintiff Patricia Bradley (“Plaintiff” or “Bradley”) long-term disability
benefits. Presently before the Court are Plaintiff’s Motion for Summary Judgment (“Plaintiff’s
Motion”) [Dkt. No. 13] and Defendant’s Motion for Summary Judgment (“Defendant’s Motion”)
[Dkt. No. 14]. For the reasons that follow, Plaintiff’s Motion will be GRANTED-IN-PART,
the matter will be REMANDED, and Defendant’s Motion will be DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
Plaintiff was employed by Western Industries-North beginning in 1990 through March
11, 2013. (PSMF2 ¶ 2; DRSMF3 ¶ 2.) At the time she stopped working, Plaintiff was employed
The following facts are agreed to by the parties in their statements of material facts unless
otherwise indicated. As both parties are cross-moving for summary judgment, neither party
benefits from any inferences that may be drawn in their favor
Plaintiff’s Statement of Material Facts [Dkt. No. 13-2] submitted with Plaintiff’s Motion.
Defendant’s Responses to Plaintiff’s Statement of Material Facts [Dkt. No. 16-1] submitted
with Defendant’s Opposition to Plaintiff’s Motion.
as a Training & Technical Specialist. (Id.) Plaintiff’s job descriptions lists that she is required to
stand frequently while conducting classroom training, sit continuously up to 85% of the time,
frequently drive to branches within a four-hour driving distance, walk and climb occasionally,
and also bend up to 33% of the time. (Administrative Record (“R.”) [Dkt. Nos. 13-5 to -7] at
168.) The job description also states that the employee will be “continuously in a seated position
while performing the essential function of this occupation” and suggests accommodations like a
standing workstation for an employee who cannot sustain a seated position. (R. at 170.)
Through her employer, Plaintiff was a participant in a Group Disability Income Policy
(the “Plan”) administered by Defendant. (R. at 251–303.) The Plan is covered by the Employee
Retirement Income and Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq.
Plaintiff’s Medical History
Relevant to Plaintiff’s claim for long-term disability (“LTD”) benefits is her treatment by
three medical professionals: (1) James Holton, M.D., a general internist and Plaintiff’s primary
care physician; (2) David H. Kim, M.D., a board certified pain management specialist; and
(3) Joseph W. McBride, Jr., D.C., a chiropractor. (PSMF ¶ 10; DRSMF ¶ 10.)4 Plaintiff fell in
December of 2006 and was seen by a pain specialist in July of 2007 to address that pain. (PSMF
¶¶ 13–14; DRSMF ¶¶ 13–14; R. at 150–53.) Plaintiff was thereafter referred to physical therapy
and discharged from physical therapy in October of 2007. (PSMF ¶ 15; DRSMF ¶ 15; R. at
It is important to note that Plaintiff did not initially submit records from Dr. Holton or Dr.
McBride in support of her LTD claim initially. They were only submitted in Plaintiff’s appeal of
the initial denial of LTD benefits.
In July 2012, Plaintiff began seeing Dr. Kim for pain in her sacrum, low back, both hips,
left leg, both feet, neck, and shoulders. (PSMF ¶ 16; DRSMF ¶ 16; R. at 182.)5 Plaintiff then
was out of work from July through December 2012 on short term disability. (PSMF ¶ 17;
DRSMF ¶ 17; R. at 145.) When Plaintiff saw Dr. Kim on January 11, 2013, she reported that
she had returned to work in a limited capacity and was modifying her activity to avoid sitting.
(PSMF ¶ 18; DRSMF ¶ 18; R. at 183.) She indicated that she was pain free at times, and that the
worst pain was in her sacrum and hips. (Id.) Dr. Kim performed trigger point needling,
compression massage, and manual therapy and mobilization to attempt to relieve myofascial pain
syndrome, radiculopathy, and associated symptoms and syndromes. (PSMF ¶ 18; DRSMF ¶ 18;
R. at 183–84.) Dr. Kim noted that Plaintiff had no relief as a result, but that multiple twitch
responses were obtained in the treated muscles. (R. at 183–84.)
Plaintiff returned to Dr. Kim on February 8, 2013, reporting that symptoms had returned
as she increased her activity. (PSMF ¶ 19; DRSMF ¶ 19, R. at 185–86.) Dr. Kim performed the
same treatments, but this time there was immediate relief. (Id.) She returned on February 14,
2013 complaining of constant pain while sleeping, reporting that the last session did not help her,
and that sitting was the worst for her pain. (PSMF ¶ 19; DRSMF ¶ 19; R. at 187–88.) Dr. Kim
again performed the same treatment and noted immediate relief. (Id.)
Plaintiff visited Dr. Kim four times in March 2013. (PSMF ¶¶ 20, 22; DRSMF ¶¶ 20,
22.) At each visit, Plaintiff complained of continued pain aggravation due to sitting, with the
worst pain consistently being in her sacrum and lower back. (R. at 189–98.) At three of the four
No medical records appear to have been submitted to Defendant for treatment prior to January
11, 2013. Additionally, medical records from Dr. Kim for the period of January 11, 2013
through August 14, 2013 were produced twice—once with the initial claim, and once with the
appeal. Where duplicates exist, the Court will refer to the documents submitted with the initial
visits,6 Dr. Kim noted that there was no relief in Plaintiff’s pain. (Id.) The treatment plan
continued to be utilizing the same three in-office treatments and instructing Plaintiff to work on a
home exercise program. (Id.) During this time period, Plaintiff began short term disability. (R.
On April 12, 2013, Plaintiff returned to Dr. Kim and noted some improvement. (PSMF
¶ 23; DRSMF ¶ 23; R. at 199–200.) Again the same treatments were given with no relief. (Id.)
Plaintiff saw Dr. Kim again on May 14, 2013 after visiting Florida, which had aggravated her
pain. (PSMF ¶ 24; DRSMF ¶ 24; R. at 201–02.) Sitting and driving still aggravated her pain as
well. (Id.) Dr. Kim performed the same treatments again, and immediate relief was noted. (Id.)
On her next visit on June 12, 2013, Plaintiff reported that certain exercises she was trying for
pain relief aggravated her sacrum, so she had modified her exercise program. (PSMF ¶ 25;
DRSMF ¶ 25; R. at 203–04.) Her sacrum and low back still demonstrated the worst pain. (Id.)
The same treatments were performed, and no relief was noted. (Id.) Her visit on July 10, 2013
was substantially similar to her June visit, with the same reports of pain, the same treatment, and
no relief noted. (PSMF ¶ 26; DRSMF ¶ 26; R. at 205–06.)
In July 2013, Plaintiff also began seeing Dr. McBride for chiropractic treatment. She had
her initial visit on July 18, 2013 and noted that she was on short term disability at the time.
(PSMF ¶ 27; DSRMF ¶ 27; R. at 143–46.) Plaintiff reported that the pain was constant, only
improved by inactivity, made worse by sitting and lying down, and that her job was mostly
sitting. (Id.) She also said she had moderate stress at the time. (Id.) Her chief complaint was
severe tailbone pain, but she also complained of left knee pain and left shoulder pain. (Id.)
Plaintiff saw Dr. McBride four times in July, rating her pain at a 7 out of 10 for three visits, and
For one of the visits, the section headed “Response” contains no notes. (R. at 195.)
as a 4 out of 10 for one visit. (PSMF ¶ 27; DRSMF ¶ 27; R. at 137.) She continued seeing Dr.
McBride in August, and saw him on nine different occasions. (PSMF ¶ 28; DRSMF ¶ 28; R. at
134–36.) Her complaints to Dr. McBride were mostly consistent with the same complaints made
to Dr. Kim, and she mentioned to Dr. McBride that the thirty minute drive to his office had
increased her pain on occasion. (Id.) Plaintiff reported that her pain in August ranged from a 4.5
out of 10 to a 9.5 out of 10. (Id.)
Plaintiff returned to Dr. Kim on August 14, 2013 and reported that her prior session had
caused her pain for a number of weeks, but that visits with Dr. McBride helped her. (PSMF
¶ 29; DRSMF ¶ 29; R. at 207–08.) Plaintiff reported that she drove pain free to that particular
appointment. (Id.) Dr. Kim performed the same treatments on Plaintiff as in all previous visits,
noted no relief, and continued the treatment plan. (Id.)
After this visit with Dr. Kim, Plaintiff then applied for the long term disability (“LTD”)
benefits at issue in this case. (DSMF7 ¶ 11; PRSMF8 ¶ 11; R. at 1, 7.) Defendant sent Plaintiff a
questionnaire and she returned it filled out with details of her condition. (DSMF ¶¶ 11–12;
PRSMF ¶¶ 11–12; R. at 209–20, 232–46.)
In her submission to Defendant on August 22, 2013, Plaintiff explained that she was able
to sit for 20-30 minutes, stand for 60-90 minutes, and walk for 30-60 minutes. (R. at 209.) She
said that after those time periods, she would experience intense pain. (R. at 211.) Plaintiff also
claimed that each day she sits for 60-90 minutes, stands for 90-180 minutes, walks around daily
after lying down, and is in bed for 10-12 hours a day. (R. at 209.) Plaintiff said she could drive
Defendant’s Statement of Material Facts [Dkt. No. 14-2] submitted with Defendant’s Motion.
Plaintiff’s Responses to Defendant’s Statement of Material Facts [Dkt. No. 17-1] submitted
with Plaintiff’s Opposition to Defendant’s Motion.
or ride in a car for up to 30 minutes, but then pain would set in. (Id.) She told Defendant she left
the house only once or twice a week at most to pick up vegetables and prescriptions, would go
outdoors with her dog daily, but was unable to work in her garden or on her house. (R. at 209–
In addition to the intense pain brought on by physical activity, Plaintiff also claimed
constant pain from muscle spasms, shooting pain, and burning pain in her tailbone, gluteus
muscles, left knee, back, shoulders, feet, and legs. (R. at 211.) She described her daily activities
as consisting of 20 minutes of yoga in the morning followed by preparing breakfast, doing
household chores, preparing lunch, lying down to rest and applying ice and heat as needed for
pain, preparing dinner, and lying down to watch television before going to sleep. (Id.) Plaintiff
told Defendant that she sees her doctor weekly, goes for massage therapy two to three times a
month, and attempts to go on vacation to Florida once a year if she is able. (Id.)
Dr. Kim also sent his above medical records to Defendant, and included a cover note.
(PSMF ¶ 44; DRSMF ¶ 44; R. at 182.) In his note, Dr. Kim explained that he determined that
trigger point needling was medically necessary for her, and that the treatments had reduced her
need for costly pain medication and eliminated her need to see other doctors. (Id.) Based on his
evaluations, he did not believe that Plaintiff could return to work before January 2014. (Id.)
Plaintiff subsequently saw Dr. McBride twice in early September, reporting pain around a
5 out of 10 each time. (PSMF ¶ 30; DRSMF ¶ 30; R. at 134.) Also in September, Plaintiff
presented to her primary care physician, Dr. Holton, in anticipation of eye surgery. (PSMF ¶ 31;
DRSMF ¶ 31; R. at 116–19.) Dr. Holton noted that her medication include Fentanyl patches as
well as Hydrocodone-acetaminophen. (Id.) She returned to Dr. Kim on October 9, 2013, where
she complained of increased stress and pain due to the aforementioned eye surgery. (PSMF ¶ 32;
DRSMF ¶ 32; R. at 88–89.) Dr. Kim performed the same treatments, noted no relief, and
continued the treatment plan. (Id.) Plaintiff saw Dr. Kim again on October 29, 2013, reporting
minor improvement in her eye, and Dr. Kim performed the same treatments, but noted
immediate relief, and continued the treatment plan as well as prescribing massages. (PSMF ¶ 34;
DRSMF ¶ 34; R. at 90–91.) Plaintiff saw Dr. McBride two days later, indicating that her pain
had increased greatly due to the drive to Dr. McBride’s office. (PSMF ¶ 35; DRSMF ¶ 35; R. at
On November 11, 2013, Plaintiff saw Dr. Holton and complained that the Fentanyl was
making her nauseated, so she was not taking it as prescribed, and was also taking Vicodin twice
daily due to pain. (PSMF ¶ 36; DRSMF ¶ 36; R. at 125–28.) For her pain, Dr. Holton continued
the same medication. (Id.) When Plaintiff saw Dr. Kim two days later, she also complained of
nausea, dizziness, and confusion due to the pain medications, and also reported that the
medications were not actually helping her pain. (PSMF ¶ 37; DRSMF ¶ 37; R. at 99–100.) Dr.
Kim performed the same treatments, noted no response, and continued the treatment plan as well
as encouraging stress management to decrease muscle tension. (Id.) Plaintiff then saw Dr.
McBride almost a week later on November 18, 2013, for her final visit with him, 9 complaining
of the same general symptoms and noting that the drive had increased her pain. (PSMF ¶ 38;
DRSMF ¶ 38; R. at 133.)
Plaintiff returned to Dr. Kim once a month in December 2013, January 2014, February
2014, and March 2014. (PRSMF ¶¶ 39–41; DRSMF ¶¶ 39–41; R. at 102–10.) At each visit, she
complained of the same pain, and during the progression of her visits explained that she was
This may not have been Plaintiff’s final visit with Dr. McBride, but it is the final visit for which
medical records have been provided.
managing the pain by lying down and not going out much, and that sitting aggravated her pain
the most. (Id.) At each visit, Dr. Kim performed the same treatments, noted no relief for each
visit, and continued the same treatment plan. (Id.) Plaintiff also returned to Dr. Holton on April
3, 2014, complaining of pain and explaining that she could not maintain a position for more than
two hours, could not be in a car for more than about thirty minutes, and required more
medication on days when she engaged in more activity. (PSMF ¶ 42; DRSMF ¶ 42; R. at 129–
31.) Dr. Holton had increased her Fentanyl patches to a higher dosage prior to this visit,10 and
Plaintiff reported that she preferred the higher dose patch. (Id.)
Plaintiff’s Disability Claim Processing
Once Plaintiff had submitted her claim, her records were sent for review to Mark Kaplan,
M.D., a board certified physician in physical medicine and rehabilitation for an independent peer
review. (DSMF ¶ 14; PRSMF ¶ 14; R. at 172–76.) Dr. Kaplan reviewed Plaintiff’s medical
records from Dr. Kim and attempted to get in touch with Dr. Kim on three different occasions,
but was unsuccessful. (R. at 172–74.) He determined that “[t]he only supported diagnosis is
myofascial pain.” (R. at 174.) Dr. Kaplan also found that “the need for medically necessary
work restrictions or a reduced work schedule is not supported,” that “[m]inimal medical
information was provided for this review,” and that “[t]he results of prior treatments and testing,
if available, would be needed to properly complete the assessment.” (R. at 175.) He explained
that “based on the information provided, the claimant’s assessment is incomplete and there is no
particular diagnosis other than myofascial pain which is supported. Therefore, the treatment plan
is not considered consistent with the current standard of care.” (Id.)
No record exists of this visit, but between her previous visit with Dr. Holton and this visit in
April, the dosage of Plaintiff’s Fentanyl patches increased from 12 Mcg/hr to 25 Mcg/hr.
On October 7, 2013, Defendant informed Plaintiff by written letter that her claim was
denied. (DSMF ¶¶ 20–21; PRSMF ¶¶ 20–21; R. at 163–66.) The basis for the denial was set
forth as follows:
Based on the available medical records, there is no medical evidence to support a
physical impairment(s) that would translate into restrictions and limitations;
therefore, we are unable to establish any restrictions that would preclude you from
functioning in your occupation. As indicated by the independent physician, the
medical records indicate you are capable of exercise and travel and noted that you
are taking minimal over the counter medications to manage pain on what appears
to be an as needed basis. As such, there is no objective clinical evidence to support
that you require restrictions and limitations that would preclude you from
performing the material and substantial duties of your own occupation. Therefore,
you do not meet the Plan’s definition of disability, and we must deny your claim.
(R. at 164–65.)
On April 4, 2014, Plaintiff appealed Defendant’s denial, and submitted additional records
from Dr. Kim, records from Dr. Holton, records from Dr. McBride, as well as records from her
initial fall in 2006. (DSMF ¶¶ 22–24; PRSMF ¶¶ 22–24; R. at 53–56.) Included in this was a
narrative report from Dr. Kim dated December 11, 2013, that was responsive to the peer
evaluation from Dr. Kaplan. (Id.)
In his response, Dr. Kim explained that he disagreed with Dr. Kaplan’s assessment and
that he was never informed that Dr. Kaplan had tried to reach him. (R. at 58.) Dr. Kim
explained that not only is he a physician certified in pain management, but a patient himself who
found that trigger point needling eventually led to a full recovery of his own pain problems. (Id.)
Dr. Kim went on to explain that Plaintiff suffered myofascial pain in eleven areas, which also
includes the surrounding nerves, bones, joints, and other tissues, and thus he believes that the
pain would be very debilitating. (R. at 59.) Dr. Kim also agreed with Dr. Kaplan that his
treatments were not consistent with the current standard of care, but he said that was because the
current standard of care does not work. (Id.) He detailed his issues with the current standard of
care, including the fact that “[t]he incidence of death from anti-inflammatories equals the
incidence of death from AIDS” and “[t]he amount of narcotic prescriptions has increased 300%
over the past 10 years, and along with it the incidence of overdose, addiction and death has also
Defendant referred Plaintiff’s case to another peer reviewer, Daniel Rosenberg, M.D., a
board certified physician in physical medicine and rehabilitation. (DSMF ¶ 25; PRSMF ¶ 25; R.
at 32–45.) Dr. Rosenberg was instructed to answer four specific questions in his review of
1. What diagnosis is supported by the medical evidence in the file?
2. Provide a description of the claimant’s impairments, if any, and outline how
any impairment translates to restriction and limitations as of 3/1//13 through
9/6/13, and as of 9/7/13 forward. Please describe any supported restrictions as
fully as possible, indicating when these restrictions began, include the expected
duration for any supported restriction, and please address sustained capacity.
3. Please review and comment on the treatment plan, including treatment
modalities, frequency of treatment, duration and expected outcome. Has the
treatment been consistent with the standard of care expected for the severity of
diagnosis/level of impairment reported? Please explain and provide evidence
based documentation to support your opinion.
4. Do you agree with the assessment of the claimant’s capacity and the restrictions
as noted by the treating providers? If not, please explain.
(R. at 42.) Dr. Rosenberg reviewed the original records in addition to the new records
submitted by Plaintiff in her appeal, as well as Dr. Kaplan’s review. (R. at 24–27.) Dr.
Rosenberg also spoke with Dr. Kim for approximately eight to ten minutes regarding
Plaintiff’s treatment. (R. at 29–30.)
In his evaluation, Dr. Rosenberg assessed that Dr. Kim’s evaluations were
“vague, non-specific . . . [and] not thorough in [his] opinion.” (R. at 28.) Turning to the
questions posed to him, Dr. Rosenberg determined that “[t]he only diagnosis supported
by medical evidence in file is myofascial pain and multi-body pain, etiology
unknown. . . . She has no apparent objective evidence or specific subjective symptoms of
cervical or lumbar radiculopathies. There is no evidence of upper motor neuron
pathology. There is no specific evidence of facet pathology.” (Id.) As a result, he found
“no specific evidence of any specific impairments, restrictions or limitations based on
any information provided for [his] review within a reasonable degree of medical
certainty.” (Id.) Dr. Rosenberg explained:
There is no specific report of exactly what is being treated aside from
patient’s subjective symptoms of multi-body pain syndrome with report
from Dr. Kim’s evaluations of postural abnormalities and trigger points.
There is no specific report of exactly what is being treated. Evaluations and
treatment plan, in my opinion, is vague and nonspecific. In my opinion, the
treatment, modalities provided, frequency of treatment, duration and
expected outcome is not consistent with the standard of care expected for
the severity of diagnosis or level of impairment reported. In my opinion,
the specific diagnosis is vague and at most notes myofascial pain etiology
unknown. In my opinion, there is no specific level of impairment with
information provided for my review, within a reasonable degree of medical
(R. at 29.) Dr. Rosenberg went on to disagree with the assessment of capacity and restrictions
noted by treating providers, and opined that Plaintiff “should be capable of performing any job
function compatible with this age group.” (Id.) He said that his conversation with Dr. Kim did
not change his opinions. (R. at 29–30.)
Thereafter on May 27, 2014, Defendant informed Plaintiff that they would not
alter their original determination to deny benefits. (DSMF ¶ 31; PRSMF ¶ 31; R. at 13–
17.) The rationale for denying her claim at the final denial stage was that, “After a
thorough review of [Plaintiff’s] file and the additional information received on appeal, we
conclude that [Plaintiff] did not meet the elimination period, the definition of disability
and the evidence does not support that she has been under appropriate available
treatment.” (R. at 16.) This letter informed Plaintiff that she had the right to bring a
claim pursuant to ERISA § 502 if she still disagreed with the determination. (R. at 16–
The Plan provides the relevant definitions for various terms relevant to this suit.
The Plan defines “Disability Benefit” as:
When Liberty receives Proof that a Covered Person is Disabled due to Injury or
Sickness and requires the Regular Attendance of a Physician, Liberty will pay the
Covered Person a Monthly Benefit after the end of the Elimination Period, subject
to any other provisions of this policy. The benefit will be paid for the period of
Disability if the Covered Person gives to Liberty Proof of continued:
2. Regular Attendance of a Physician; and
3. Appropriate Available Treatment.
The Proof must be given upon Liberty's request and at the Covered Person’s
expense. In determining whether the Covered Person is Disabled, Liberty will not
consider employment factors including, but not limited to, interpersonal conflict in
the workplace, recession, job obsolescence, paycuts, job sharing and loss of a
professional or occupational license or certification.
(R. at 278.) The “Proof” required by the Plan is defined in the policy:
“Proof” means the evidence in support of a claim for benefits and includes, but is
not limited to, the following:
1. a claim form completed and signed (or otherwise formally submitted) by
the Covered Person claiming benefits;
2. an attending Physician’s statement completed and signed (or otherwise
formally submitted) by the Covered Person’s attending Physician; and
3. the provision by the attending Physician of standard diagnosis, chart notes,
lab findings, test results, x-rays and/or other forms of objective medical
evidence in support of a claim for benefits.
Proof must be submitted in a form or format satisfactory to Liberty.
(R. at 265 (emphasis removed).) The Plan also defines “Disabled”:
“Disability” or “Disabled”, with respect to Long Term Disability, means:
1. For persons other than pilots, co-pilots, and crewmembers of an aircraft:
during the Elimination Period and until the Covered Person reaches the
end of the Maximum Benefit Period, as a result of an Injury or
Sickness, he is unable to perform the Material and Substantial Duties
of his Own Occupation.
(R. at 263 (emphases removed).) The Plan also defines what is meant by “Appropriate Available
Treatment” in determining whether a covered person is entitled to disability benefit:
“Appropriate Available Treatment” means care or services which are:
1. generally acknowledged by Physicians to cure, correct, limit, treat or
manage the disabling condition;
2. accessible within the Covered Person’s geographical region;
3. provided by a Physician who is licensed and qualified in a discipline
suitable to treat the disabling Injury or Sickness;
4. in accordance with generally accepted medical standard of practice.
(R. at 258 (emphasis removed).) Finally, the Plan describes how the Plan shall be interpreted:
Liberty shall possess the authority, in its sole discretion, to construe the terms of
this policy and to determine benefit eligibility hereunder. Liberty’s decisions
regarding the construction of the terms of the policy and benefit eligibility shall be
conclusive and binding. However, these decisions may be modified or reversed by
a court or regulatory agency with appropriate jurisdiction.
(R. at 296.)
Plaintiff is seeking review of the decision of a denial of benefits under ERISA § 502(a),
29 U.S.C. § 1132(a). As such, this Court exercises subject matter jurisdiction pursuant to 28
U.S.C. § 1331 and 29 U.S.C. §§ 1132(e)–(f).
Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weights the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The moving party bears the burden of establishing that no genuine issue of material fact
remains. See Celotex, 477 U.S. at 322–23. A fact is material only if it will affect the outcome of
a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is
such that a reasonable fact finder could return a verdict for the nonmoving party. See Anderson,
477 U.S. at 252. Even if the facts are undisputed, a disagreement over what inferences may be
drawn from the facts precludes a grant of summary judgment. Ideal Dairy Farms, Inc. v. John
Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996). Further, “any unexplained gaps in materials
submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion
for summary judgment.” Id. (quoting Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502
(3d Cir. 1990)) (internal quotations and alterations omitted).
The nonmoving party must present “more than a scintilla of evidence showing that there
is a genuine issue for trial.” Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The court’s role in deciding the merits of a summary judgment motion is to determine whether
there is a genuine issue for trial, not to determine the credibility of the evidence or the truth of
the matter. Anderson, 477 U.S. at 249.
ERISA Standard of Review
Under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), a participant in an ERISA plan
may sue “to recover benefits due to him under the terms of his plan.” “[C]ourts reviewing the
decisions of ERISA plan administrators or fiduciaries in civil enforcement actions brought
pursuant to 29 U.S.C. § 1132(a)(1)(B) should apply a deferential abuse of discretion standard of
review across the board and consider any conflict of interest as one of several factors in
considering whether the administrator or the fiduciary abused its discretion.” Estate of Schwing
v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009) (citing Met. Life Ins. Co. v. Glenn,
554 U.S. 105, 115–16 (2008)).11 In the ERISA context, “abuse of discretion” and “arbitrary and
capricious” standards of review are “practically identical.” Id. at 526 n.2. The standard has been
explained as being “without reason, unsupported by substantial evidence or erroneous as a matter
of law.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 121 (3d Cir. 2012) (quoting Miller v. Am.
Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011)).
“A plan administrator’s final post-appeal decision should be the focus of review.” Funk
v. CIGNA Grp. Ins., 648 F.3d 182, 191 n.11 (3d Cir. 2011), abrogated on other grounds by
Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 136 S. Ct. 651 (2016).
However, “[a] court may of course consider a plan administrator’s pre-final decisions as
evidence of the decision-making process that yielded the final decision, and it may be that
questionable aspects of or inconsistencies among those pre-final decisions will prove significant
in determining whether a plan administrator abused its discretion.” Id. (citing Miller, 632 F.3d at
Additional factors for a reviewing court to consider may also include “procedural
concerns about the administrator’s decision making process.” Estate of Scwhing, 562 F.3d at
526; see also Miller, 632 F.3d at 845. However, “[t]he presence of procedural irregularities do
The Court expresses some concern with the fact that Defendant in its opening brief cited to
and relied on the sliding scale standard of Pinto v. Reliance Standard Life Insurance Co., 214
F.3d 377, 392 (3d Cir. 2000). (Def.’s Mot. Br. at 7–8.) The sliding scale standard was overruled
by Estate of Schwing, and replaced by the standard announced in Estate of Schwing as
recognized by the Third Circuit in Howley v. Mellon Financial Corp., 625 F.3d 788, 792–93 &
n.5 (3d Cir. 2010). Although Defendant walked back from this position in its Reply, (see Def.’s
Reply at 2 n.1), there is still no acknowledgement that Defendant made an error in law of
explicitly relying on the overruled sliding scale in its opening brief.
not change ‘the standard of review, say, from deferential to de novo review,’ but rather are
weighed as factors to consider such [that] any particular one ‘will act as a tiebreaker when the
other factors are closely balanced.’” Morrison v. PNC Fin. Servs. Grp., Inc., Civ. No. 13-804
(JEI/JS), 2015 WL 1471865, at *5 (D.N.J. Mar. 31, 2015) (quoting Glenn, 554 U.S. at 115, 117),
appeal docketed sub nom. Morrison v. Liberty Life Assurance Co. of Boston, No. 15-2095 (3d
Cir. May 5, 2015).
Plaintiff raises a number of challenges to Defendant’s determination that she is not
entitled to disability benefits. Primarily, Plaintiff challenges the evaluation and consideration of
the clinical evidence, including the opinions of her treating physicians, in determining that she is
not disabled, as well as challenging the apparent requirement of Defendant that Plaintiff provide
objective medical evidence of her pain. (See generally Pl.’s Mot. Br.) For the reasons that
follow, the Court agrees with Plaintiff that the determinations made by Defendant were arbitrary
and capricious, and so will remand this matter to Defendant, and deny Defendant’s Motion.
Evaluation and Consideration of Clinical Evidence
As defined by the Plan, and as explained above, in order to be entitled to a disability
benefit under the Plan, the covered person must be disabled and also provide proof of appropriate
available treatment. (See R. at 13–14, 257–66, 278.) The appropriate available treatment must
then be “in accordance with generally accepted medical standards of practice.” (Id.) Defendant
referred to this as a basis for its denial in its letter denying Plaintiff’s appeal, informing her that
“the evidence does not support that she has been under appropriate available treatment.” (R. at
16.) However, Defendant only raised this for the first time at the appeals stage. In its initial
denial, Defendant based the denial on a lack of “medical evidence to support a physical
impairment(s) that would translate into restrictions and limitations” and an inability to “establish
any restrictions that would preclude [Plaintiff] from functioning in your occupation.” (R. at
164.) Further, at the initial denial stage, Defendant noted “there is no objective clinical evidence
to support” a finding of restrictions in finding Plaintiff not disabled. (R. at 164–65.) No mention
was made of the appropriate available treatment.
Essentially, at the initial denial stage, Defendant told Plaintiff that she was not disabled
under the definition of “disabled” under the Plan, and subsequently at the appeals stage told
Plaintiff that she was not disabled under the terms of the Plan and additionally was not
undertaking appropriate available treatment to obtain disability benefit under the Plan. The
Court will address these two bases of denial, beginning with the appropriate available treatment.
Appropriate Available Treatment
Adding a reason for denying benefits at the appeals stage is inappropriate, as other courts
have determined. See Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, 963 (9th Cir. 2014)
(“[W]e have held that an administrator may not raise a new reason for denying benefits in its
final decision, because that would effectively preclude the participant ‘from responding to that
rationale for denial at the administrative level,’ and insulate the rationale from administrative
review.”) (quoting Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006) (en
banc)); Mullica v. Minn. Life Ins. Co., No. 11-4034, 2013 WL 5429295, at *6 (E.D. Pa. Sept. 27,
2013) (“Thus, ‘tacking on’ an additional basis of denial constitutes a ‘procedural irregularity’
that violates ERISA.”) (quoting Abatie, 458 F.3d at 974).12 This “tacking on” of another reason
The Court expresses no opinion on whether this creates a problem under ERISA § 503, 29
U.S.C. § 1133 as these cases have discussed, because the parties have not raised this issue.
to deny Plaintiff is both improper and, more importantly, an inaccurate reason that goes against
the weight of the medical evidence.
Defendant in arguing that Plaintiff’s treatment is not appropriate relies heavily on a
written response by Dr. Kim to Defendant’s first peer review by Dr. Kaplan. (See, e.g., Def.’s
Mot. Br. at 13–14; Def.’s Opp. at 11–12.) In the first peer review of Plaintiff’s claim, Dr.
Kaplan stated that Plaintiff’s treatment was not within the currently accepted standard of care.
(R. at 175.) In responding to the peer reviewer, Dr. Kim agreed with and acknowledged that
fact, expressly stating, “[The reviewer] states that the current treatment plan is not considered
consistent with the current standard of care. I would agree with this, because the standard of care
does not work.” (R. at 59 (emphasis added).) Dr. Kim then went on to explain that he does not
believe in using muscle relaxants or anti-inflammatories because they do not specifically relax
the muscle spasms. (Id.) Dr. Kim also expressed grave concerns about the potential for
addiction and death from narcotics, analogizing the risk of using such medications to the risk of
dying from AIDS. (Id.)
Plaintiff counters that it is improper to rely on this statement from Dr. Kim, because Dr.
Kim has also explained why he believes trigger point needling is appropriate. (See, e.g., Pl.’s
Reply at 6–7; Pl.’s Opp. at 9–14.)13 Additionally, as evidence that her treatment was indeed
within the accepted medical standards of practice, Plaintiff points to the statement of Defendant’s
second peer reviewer, Dr. Rosenberg, that “[t]reatment plan noted above appears to be
Plaintiff in her briefs also provides medical literature cites regarding the effectiveness of
trigger point needling. (See Pl.’s Mot. Br. at 8, 11; Pl.’s Reply at 6–7; Pl.’s Opp. at 10–11.)
However, these medical literature cites were never provided to Defendant during the review of
Plaintiff’s claims, and the Court is not in a position to evaluate their impact on Plaintiff’s claims
stereotypical noting Duragesic patch [a/k/a Fentanyl], Vicodin, trigger point dry needling,
compression massage.” (Pl.’s Opp. at 11 (citing R. at 29).)
The Court must agree with Plaintiff. Defendant has not elucidated in any rejection of
Plaintiff’s claim what the appropriate standard of care is or why Plaintiff’s treatment is
inappropriate. It appears that the first time Defendant attempted to articulate the appropriate
standard of care was in its opening brief, and it seems that Defendant believes the standard of
care requires medication and testing. (See Def.’s Mot. Br. at 14.) Defendant explains that “Dr.
Kim’s trigger point injections, massages, over the counter medications, and homeopathic
remedies simply fail to meet the appropriate available treatment standard required by the Plan.”
(Id.) Despite the fact that Dr. Kim stated that his treatment alone was not squarely within the
standard of care and takes what may be an idiosyncratic view in his aversion to pain medication,
his opinions regarding the efficacy of trigger point needling are not rendered invalid.14 Further,
Plaintiff’s other treating physician, Dr. Holton, provided her with the pain medication that was
noted by Dr. Rosenberg to be part of a “stereotypical” treatment plan along with Dr. Kim’s
Even assuming that the correct standard of care includes medication, there was no fault in
Dr. Kaplan’s initial opinion that Plaintiff’s treatment was outside the standard of care, because
the record available to him at the time only contained the treatment records of Dr. Kim. As such,
Dr. Kaplan could not be aware that Plaintiff was using Fentanyl patches or taking Vicodin for
her pain issues. However, once Dr. Rosenberg was made aware of the medication, he
The Court does express some concern about whether the trigger point needling is actually
effective for Plaintiff, as the vast majority of her treatments with Dr. Kim reflect that there
actually was no relief from the pain as a result of the treatment provided, although twitch
responses were obtained with each treatment.
acknowledged that Plaintiff was taking pain medication and stated that her treatment plan was
It is contradictory for Defendant to argue that Plaintiff has conceded that her treatment is
outside the standard of care when not taking into consideration the treatment Plaintiff has
received from every physician, which compels the conclusion from Defendant’s own reviewer
that the treatment is “stereotypical.”
The record does not support Defendant’s finding that Plaintiff was not undertaking
appropriate available treatment. Rather, Defendant reached that conclusion by selectively
focusing its attention on the treatment of Dr. Kim to the exclusion of medication from Dr. Holton
and additional chiropractic care from Dr. McBride. Further, “tacking on” this rationale was
inappropriate. The determination finds no basis in the evidence, is unreasonable, and the acting
of “tacking on” was erroneous as a matter of law. Thus, the Court concludes that this
determination was arbitrary and capricious.
Disabled Under the Plan Definition
Even with the Court finding that adding an additional at the administrative appeal stage
was inappropriate, this still leaves the determination that Plaintiff does not qualify as disabled
under the definition in the Plan.
It is clear from the initial letter denying LTD benefits and the letter denying Plaintiff’s
appeal that Defendant relied heavily on the opinions of its non-examining peer reviewers. (See
R. at 13–17, 163–66.) It is true that ERISA plan administrators need not give special deference
to treating physician opinions, but neither are they free to “arbitrarily refuse to credit a claimant’s
reliable evidence, including the opinions of treating physicians.” Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 834 (2003). Further, an insurer “is not entitled to cherry-pick among
medical reports, including among its own consulting physicians, “disfavor[ing] the claimant at
each crossroads.’” Morrison, 2015 WL 1471865, at *10 (quoting Culley v. Liberty Life
Assurance Co. of Bos., 339 F. App’x 240, 244–45 (3d Cir. 2009)).
Throughout this circuit, and indeed nationwide, the weight of authority is that “courts are
troubled where a plan administrator denies a claim by relying on the paper-review reports of
consultants that oppose the conclusions of treating physicians.” Kelly v. Reliance Standard Life
Ins. Co., Civ. No. 09-2478 (KSH), 2011 WL 6759632, at *6 (D.N.J. Dec. 22, 2011) (collecting
cases). As the court in Kelly further remarked, “[a] strong emphasis on paper review reports is of
even greater concern where, as in this case, the plan administrator had the discretion to
supplement the record by requiring an independent medical evaluation (“IME”) but chose not
to.” Id. (citing Schwarzwaelder v. Merrill Lynch & Co., Inc., 606 F. Supp. 2d 546, 559 (W.D.
Pa. 2009)). “Courts have noted the particular appropriateness and helpfulness of an IME where
the disability claim encompasses significant inherently subjective complaints.” Schwarzwaelder,
606 F. Supp. 2d at 560 (collecting cases).
Dr. Kim repeatedly and emphatically expressed his concern that Plaintiff suffered
limitations as a result of her pain. He explained in his supplemental submissions that Plaintiff’s
“chronic low back/SI/sacral pain remained the worst which prevented her from sitting for any
extended period of time. This would severely limit working on a computer and driving, both of
which are requirements for her job.” (R. at 58.) He further explained that “severe low back in
only one area is enough to warrant work restrictions,” after discussing how Plaintiff suffers pain
in eleven different areas. (R. at 59 (emphasis removed).) Dr. Holton expresses no opinion on
Plaintiff’s limitations, but as explained in this Court’s review of the medical record, Dr. Holton
consistently notes that Plaintiff is in pain and went so far as to prescribe transdermic Fentanyl
patches in an attempt to provide constant pain relief. Similarly, Dr. McBride provided treatment
up to nine times in one month to address Plaintiff’s pain.
The second peer reviewer, Dr. Rosenberg, also noted that “Dr. Kim reiterated a few times
concerning the sacroiliac joint lock up and sacroiliac joint pain and how it affects her inability to
sit or function.” (R. at 30.) However, based in part on the “non-specific and vague” evaluations,
Dr. Rosenberg determined that there was “no specific evidence of any specific impairments,
restrictions or limitations.” (R. at 28.) Defendant then credited this finding in denying Plaintiff’s
appeal and finding that she had no limitations that would constitute being disabled under the
terms of the Plan. (See R. at 16.)
Dr. Rosenberg, in rejecting Dr. Kim’s conclusions, provided no medical basis for his
rejection. Rather, he dismissed the opinion out of hand, and determined that Plaintiff “may have
sustained a lumbosacral sprain and strain type injury or possibly coccydynia . . . [which] may
have been amendable to physical therapy up to eight sessions over eight weeks.” (R. at 29
(emphases added).) This speculation about what a claimant’s injury was, without actually
examining the claimant, is exactly the type of peer review findings rejected by the court in Kelly.
See Kelly, 2011 WL 6756932, at *6–7. The court in Kelly also explained that, “while it is
acceptable for the administrator to credit the contrary evidence of a non-treating physician,
where a non-treating physician’s opinion simply cites to an absence of information it does not
serve to refute the treating physician’s conclusions, and in and of itself is not a reasonable
explanation for denying benefits.” Id. at *8 (citation omitted). Yet, that is precisely what
Defendant here did.
Additionally, it appears from the record that Defendant in crediting its non-examining
peer reviewers failed to consider treatment from all of Plaintiff’s treating physicians, and chose
to focus solely on treatment received from Dr. Kim. In Defendant’s letter informing Plaintiff
that her appeal was denied, Defendant only relied on medical records from Dr. Kim, and only
mentioned records from other physicians in passing. (See R. at 13–17.) In fact, the only
discussion of Dr. Holton’s records at all was to clarify that Defendant was not considering
Plaintiff’s eye condition in its disability determination. (R. at 16.)
In sum, Defendant relied entirely on their non-examining peer reviewer who selectively
rejected evidence of Plaintiff’s pain symptoms, failed to request an IME, and gave no
independent weight to the opinion of any of Plaintiff’s treating physicians. The Court concludes
that the finding of no functional limitations was contrary to the medical record and finds no basis
in the evidence, and thus constitutes an arbitrary and capricious finding.
Subjective Complaints of Pain
Plaintiff further challenges Defendant’s apparent requirement that Plaintiff submit
objective evidence of her pain symptoms. (See Pl.’s Mot. Br. at 14–19.) Although this issue has
been mostly addressed by the Court in finding Defendant’s rejection of Plaintiff’s treating
physicians arbitrary and capricious, it warrants some additional discussion. Plaintiff argues that
Defendant failed to appropriately credit her subjective complaints, resting its rejection of her
claim on a lack of objective evidence of functional limitations. (Id.) Defendant responds that the
peer reviewers did consider her complaints of pain, but balanced those complaints against reports
that Plaintiff was able to travel, exercise, drive, and practice yoga. (Def.’s Opp. at 12–14.)
“A claimant’s subjective accounts cannot be wholly dismissed, particularly where . . .
‘the plan itself does not restrict the type of evidence that may be used to demonstrate total
disability.’” Kelly, 2011 WL 6756932, at *9 (quoting Glenn v. MetLife, 461 F.3d 660, 672 (6th
Cir. 2006), aff’d 554 U.S. 105 (2008)). However, Defendant here has done just that—wholly
dismissed Plaintiff’s claims of pain.
In its initial denial, Defendant informed Plaintiff that “there is no objective clinical
evidence to support that you require restrictions and limitations that would preclude you from
performing the material and substantial duties of your own occupation.” (R. at 165.)
Additionally, Dr. Rosenberg concluded in his peer review, which was adopted by Defendant in
its appeal letter, that “there is no specific evidence of any specific impairments, restrictions or
limitations.” (R. at 16; see also R. at 28.) For Defendant to now claim that this was not a
requirement of objective evidence is contradictory.
As noted by Plaintiff, numerous courts within and without this circuit have come to the
conclusion that it is improper to require objective medical evidence for claims such as chronic
fatigue syndrome, fibromyalgia, and other conditions for which objective evidence is hard to
procure. (See Pl.’s Mot. Br. at 14–19); see, e.g., Lamanna v. Special Agents Mut. Benefits Ass’n,
546 F. Supp. 2d 261, 299–300 (W.D. Pa. 2008) (collecting cases); see also Gilmore v. Liberty
Life Assurance Co. of Bos., No. 13-178 PJH, 2014 WL 1652048, at *5–6 (N.D. Cal. Apr. 24,
2014). Defendant neither responds to nor attempts to distinguish any of these cases, simply
responding that Plaintiff has mischaracterized the peer reviews and that Plaintiff’s ability to sit,
travel, practice yoga, and exercise should dictate the outcome here. (See Def.’s Opp. at 12–14.)15
But as noted by Plaintiff in her opening and reply brief, this is a further example of
Defendant cherry-picking and taking out of context evidence from the medical record in order to
Defendant also repeatedly implies that the alleged sedentary nature of Plaintiff’s job should be
outcome determinative. (See Defs.’ Mot. Br. at 12–14.) As noted below, in Section IV.C., infra,
the determination of whether Plaintiff’s job is sedentary is not properly before this Court as it
never formed the basis of a denial.
support its conclusion. When the medical record is reviewed as a whole, it is clear that
Plaintiff’s yoga and exercise were attempts to mitigate her pain and incorporate home exercise
into her treatment. Further, Plaintiff does not dispute that she can sit; she disputes her ability to
sit for prolonged periods of time. Finally, with respect to Plaintiff’s ability to travel, the Third
Circuit has made clear, albeit in the Social Security context, that “[d]isability does not mean that
a claimant must vegetate in a dark room excluded from all forms of human and social activity.”
Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981). The fact that Plaintiff reported she was able
to travel once does not render all of her other complaints of pain invalid.
In Dr. Rosenberg’s review of the medical record, he indicates that the medical notes from
September 27, 2013 reveal Plaintiff’s ability “to exercise and travel and do not support the
presence of any functional deficits.” (R. at 26.) This is the only instance in which
Dr. Rosenberg indicates that there is some evidence that Plaintiff has capabilities that belie her
claimed functional limitations. However, this is actually not one of Plaintiff’s medical records—
this is the first peer review from Dr. Kaplan. (See R. at 26 “09/27/13 MLS Peer Review
Services. Dr. Kaplan.”) This is despite the clear statement from Defendant to this Court that
“Dr. Rosenberg was not provided with a copy of Dr. Kaplan’s peer review when he reviewed
Plaintiff’s records.” (Def.’s Opp. at 8–9.) Plaintiff argues that this makes it “obvious that [Dr.
Kaplan’s report] was not only provided, but it was reviewed extensively by Dr. Rosenberg.”
(Pl.’s Reply at 8.) The Court must agree with Plaintiff, and is also disappointed that Defendants
have so clearly misrepresented the record in this manner, as this casts severe doubt on the
conclusions Dr. Rosenberg made.
In light of the fact that Dr. Rosenberg had Dr. Kaplan’s peer review as part of his review,
and the fact that Defendant repeatedly contradicts itself in its arguments before this Court when
compared to the administrative record, the Court finds that Defendant improperly required that
Plaintiff provide objective proof of pain to support her claim of disability. This, too, renders the
determination arbitrary and capricious.
Nature of Job
The parties have also briefed and disputed whether Plaintiff’s job was sedentary. (See
Def.’s Mot. Br. at 10; Def.’s Opp. at 12–14; Pl.’s Opp. at 4–5; Def.’s Reply at 6; Pl.’s Reply at
2–3.) At this stage, this issue is not properly before the Court. Defendant’s determination did
not turn on the nature of Plaintiff’s job. Rather, Defendant determined that Plaintiff had no
functional limitations, and thus never evaluated whether that would affect her job performance.
(See R. at 13–17, 163–66.) The Court does express frustration that Defendant repeatedly and
emphatically mentions that Plaintiff’s job is sedentary in conjunction with its arguments that its
decision should be upheld, when Defendant never once reached the issue of applying functional
limitations to Plaintiff’s job descriptions and job requirements. As that analysis never occurred,
the Court will not express an opinion regarding the nature of Plaintiff’s job.
In its motion for summary judgment, Defendant argues (1) Plaintiff failed to carry her
burden of proving disability; (2) Plaintiff’s records demonstrate functional capabilities at odds
with her claimed restrictions and limitations; and (3) Plaintiff was not seeking appropriate
available treatment for her condition. (See generally Def.’s Mot. Br.) In addressing all of the
points raised by Plaintiff in her motion, the Court has generally dealt with and rejected all of the
bases for affirmance of Defendant’s decision as put forth by Defendant in its motion.
Accordingly, Defendant’s Motion will be denied.
Having determined that Defendant’s denial of benefits to Plaintiff was arbitrary and
capricious, the Court now turns to the appropriate remedy. Plaintiff requests that the Court
reverse the denial of benefits and direct payment to her of accrued benefits and reinstatement of
her benefits. (See Pl.’s Mot. Br. at 29.) However, as the Third Circuit has held, “[i]n a situation
where benefits are improperly denied at the outset, it is appropriate to remand to the
administrator for full consideration of whether the claimant is disabled.” Miller, 632 F.3d at 856.
Accordingly, the appropriate remedy here is a remand to the plan administrator to
reevaluate whether Plaintiff is entitled to LTD benefits under the Plan, with reasonable discretion
not inconsistent with this Opinion.
For the foregoing reasons, Plaintiff’s Motion will be GRANTED in part and
REMANDED in part to Defendant for reevaluation with reasonable discretion not inconsistent
with this opinion, and Defendant’s Motion will be DENIED. An appropriate order accompanies
Date: June 21st , 2016
s/ Robert B. Kugler
ROBERT B. KUGLER, U.S.D.J.
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