PREZIOSO v. BAYER CORPORATION et al

Filing 94

OPINION. Signed by Judge Stanley R. Chesler on 06/20/2018. (ek)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
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ALEXANDER N. PREZIOSO
Plaintiff,
v.
BAYER CORPORATION, MATRIX
ABSENCE MANAGEMENT, and BAYER
CORPORATION DISABILITY PLAN,
Defendants.

Civil Action No. 14-3140 (SRC)

OPINION

CHESLER, District Judge
This matter comes before the Court upon the filing by Defendant Bayer Corporation
(“Bayer”), Defendant Matrix Absence Management (“Matrix”), and Defendant Bayer
Corporation Disability Plan (collectively “Defendants”) of a motion for summary judgment
(Docket No. 71), pursuant to Federal Rule of Civil Procedure 56. Plaintiff Alexander N. Prezioso
(“Plaintiff) has submitted a brief in opposition (Docket No. 74), and Defendants have submitted
a reply brief (Docket No. 91). The Court has reviewed the parties’ submissions and proceeds to
rule without oral argument. See Fed. R. Civ. P. 78(b). For the reasons set forth below,
Defendants’ motion will be granted and this Court will grant summary judgment on both the
claim for denial of benefits under Section 502(a)(1)(B of the Employment Retirement Investment
Savings Act (“ERISA”) and for breach of fiduciary duty under ERISA § 502(a).

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I.

FACTUAL BACKGROUND 1
a. Short-Term Disability (“STD”) and Long-Term Disability (“LTD”)
Coverage under the Plan
From August 1, 2008 to June 6, 2012, Plaintiff worked for Bayer as a U.S. Deputy

Director of Medical Affairs. Def. SUMF ¶ 51. Bayer is a Plan Administrator of a medical
disability plan (the “Plan”) offered to its employees, including Plaintiff. Id. ¶ 1. The Plan
provides Bayer with the discretion to interpret its terms and conditions, and Bayer delegated this
authority to its claims administrator Matrix and its ERISA Review Committee (the
“Committee”). Id. ¶¶ 2, 6. The Plan reserves the discretion to determine whether the employee
claimant is disabled and/or “totally disabled,” and where “conflicting medical opinions are
presented, the company or its delegate reserve the right to determine which opinion or opinions
more plausibly or credibly assess [the claimant’s] functional capabilities.” Docket No. 71-5
(“Plan Doc.”) 130.

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The following factual background is based on assertions in Defendants’ Statement of Facts Not
in Dispute (Docket No. 71-44, “Def. SUMF”) and Defendants’ Supplemental Statement of Facts
Not in Dispute (Docket No. 91-1, “Def. Supp. SUMF”) pursuant to Local Civil Rule 56.1 that
are admitted or uncontroverted in Plaintiff’s Response to Defendants’ Statement of Material
Facts Not in Dispute (Docket No. 75, “Pl. SUMF”).
Under Local Rule 56.1(a), the non-movant opponent to a motion for summary judgment
is required to furnish a responsive statement that “address[es] each paragraph of the movant’s
statement, indicating agreement or disagreement and, if not agreed, stating each material fact in
dispute and citing to the affidavits and other documents submitted in connection with the
motion.” Instead of indicating such agreement or disagreement with each of Defendants’
proffered undisputed facts, Plaintiff’s responsive statement largely consists of various arguments
for why this Court should accord little weight to Defendants’ facts. See, e.g., Pl. SUMF ¶ 22
(“Plaintiff wishes to highlight that all of the Defendants’ post claim experts base their opinions
on a suspect and flawed couple of documents. . . “).
Plaintiff’s failure to comply with Local Rule 56.1 provides this Court the discretion to
assume that Plaintiff accepts the facts in Defendants’ statement that it does not specifically
dispute. See Glazewski v. Corzine, 2009 WL 5220168, at *1 (D.N.J. Dec. 31, 2009), aff’d, 385
F. App’x 83 (3d Cir. 2010). Nevertheless, this Court has endeavored, in deference to Plaintiff’s
pro se status, to examine the record to determine which facts are genuinely not in dispute.
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The Plan includes STD benefits for disabilities lasting less than 26 weeks, as well as LTD
benefits for disabilities lasting longer than 26 weeks. Plan Doc. 121, 126. The Plan defines
disability as being “under the care of a physician whose specialty or experience is appropriate for
your condition” and that, “based on objective medical evidence,” results in the covered employee
being “unable to do your job.” Def. SUMF ¶ 3.
To receive long-term disability under the Plan, the claimant 1) “must be unable to
perform the essential duties of [the claimant’s] regular occupation; 2) must provide “objective
medical evidence satisfactory to the company or its delegate in its sole discretion, to support [the
claimant’s] initial claim for, and continuing eligibility to receive, disability benefits”; and 3)
must apply for disability benefits under the Social Security Act (“SSDI”). Plan Doc. 128, 130.
After 18 months of receiving LTD benefits, the claimant may only continue to receive such
benefits if she is “totally disabled,” which the Plan defines as being “unable to work at any job
for which you are or could become qualified by education, training, or experience.” Plan Doc.
126.
The Plan authorizes Bayer to terminate LTD benefits for various reasons, including if the
claimant does not “provide satisfactory objective medical evidence of [the] continuing
disability,” is no longer disabled, or is “no longer under the regular care of a physician whose
specialty or experience is appropriate for [the claimaint’s] condition.” Plan Doc. 127.
b. Plaintiff’s Short-Term Disability Claim
On June 6, 2012, Plaintiff stopped working and applied for STD benefits. Plaintiff’s
primary care physician, Dr. Orlandoni, diagnosed Plaintiff with fatigue, arthralgias (i.e. joint
pain 2), and elevated rheumatoid factor. Def. SUMF ¶ 18; Docket No. 71-6 – 71-39 (Claim File,

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“Arthralgia.” Merriam-Webster Online Dictionary. 2018. http://www.merriam-webster.com (11 June 2018).

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“CF”) 260. A review by RN Bill Thomack on June 27, 2012 supported Dr. Orlandoni’s
diagnosis. Def. SUMF ¶ 19; CF 250. On July 6, 2012, Matrix approved Plaintiff for STD
benefits for the period of June 6 to July 18, 2012. CF 245. After being granted STD benefits,
Plaintiff received treatment from the following medical professionals:
1) Dr. Golombek (Rheumatologist): On July 18, Dr. Golombek noted that Plaintiff
suffered from fatigue and myalgia (i.e. muscle pain 3). Def. SUMF ¶ 21; CF 244. In
his August 21 notes, Dr. Golombek noted that Plaintiff’s elevated rheumatoid factor
was not a “sign[] of rheumatoid arthritis,” but instead reflected a viral infection of
acute mononucleosis (“mono”) caused by the Epstein-Barr virus. CF 341.
2) Dr. Bouillon (Orthopedic Surgeon): On August 8, Dr. Bouillon noted that Plaintiff
had paracervical tenderness, a positive Spurling test—indicating cervical nerve root
impairment—and slight bicep weakness. Def. SUMF ¶ 23; CF 177. On October 1, Dr.
Bouillon diagnosed Plaintiff with polyarthralgia and chronic fatigue. Def. SUMF ¶
29.
3) Dr. Orlandoni (PCP): On August 10, Dr. Orlandoni diagnosed Plaintiff with fatigue,
cervical radiculopathy, and upper extremity weakness. In his notes, Dr. Orlandoni
indicated that the cervical spine exam and neck exams were “normal.” Def. SUMF ¶
24. CF 181. In his September 26 notes, Dr. Orlandoni reported a normal cervical
spine examination and bilateral upper extremity weakness. Def. SUMF ¶ 28.
4) Physical Therapy: In August 2012, Plaintiff underwent physical therapy for cervical
radiculopathy (i.e. compressed nerve pain 4). This injury appears related to a
motorcycle accident Plaintiff sustained in 1997, which resulted in a total right hip
replacement in 1999. Def. SUMF ¶¶ 14-15.
c. Plaintiff’s Long-Term Disability Claim
Subsequent to these medical visits, Matrix determined that it was “unlikely the EE
[employee] will be able to RTW [return to work] to perform sedentary duties as of LTD effective
date of 12/5/12.” CF 2084. Matrix subsequently approved Plaintiff for LTD benefits, effective

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“Myalgia.” Merriam-Webster Online Dictionary. 2018. http://www.merriam-webster.com (18 June 2018).
“Radiculopathy” (“irritation of or injury to a nerve root (as from being compressed) that typically causes pain,
numbness, or weakness”) Merriam-Webster Online Dictionary. 2018. http://www.merriam-webster.com (18 June
2018).
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December 5, 2012. Def. SUMF ¶ 34. By letter dated February 8, 2013, Matrix denied Plaintiff’s
LTD benefits, stating that “there is no objective medical evidence that supports ongoing
disability.” CF 131-132. During this time period, the following medical professionals opined on
Plaintiff’s condition and his estimated return to work:
1) Dr. Golombek: stated that he only saw Plaintiff once, in August 2012. Def. SUMF ¶
33.
2) Dr. Bouillon: opined that Plaintiff was permanently disabled, due to cervical
radiculitis and cervical herniated disc, and that he could not estimate Plaintiff’s return
to work. CF 174.
3) Dr. Orlandoni: On November 19, 2012, Dr. Orlandoni diagnosed Plaintiff with an
upper respiratory infection, and noted that he was a good candidate for permanent
disability. In January, Dr. Orlandoni stated that Plaintiff was being treated for
polymyalgia, convalescent Epstein-Barr Virus, cervical radiculopathy, left hand
parasthesias and gout. He estimated that Plaintiff could not return to work until
November 19, 2013. Def. SUMF ¶ 37; CF 325-326.
4) Mr. Dul (Physical Therapist): On October 12, 2012, Plaintiff’s physical therapist
conducted a Physical Capacities Assessment (“PCA”), in which he determined that
Plaintiff was capable of sedentary work. Def. SUMF ¶ 31.
5) Dr. Colizza (Orthopedist): Dr. Colizza examined Plaintiff’s hip during a December
2012 visit, and noted that 1) the hip replacement as “really quite unremarkable” (CF
508); 2) the hip prothesis was in “very satisfactory position (CF 2089) with metal ion
testing indicating “really mild elevations” that were not “in the range where we tend
to become more concerned”; and 3) that Plaintiff “seemed to think that his hip really
was not much of an issue to him but that we were just covering the bases given his
workup for fatigue.” Id.
In July 2013, Plaintiff appealed his denial of LTD benefits, arguing that reexamination
was warranted based on the following medical restrictions: 1) “permanent residual damage, pain
and loss of function and range of motion to both hands,” constant numbing and paresthesia, and
chronic fatigue resulting from the 1997 motorcycle accident; 2) cervical disk herniations; 3)

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elevated levels of uric acid; 4) toxic heavy metals from the right hip prothesis; and 5)
exacerbation of these conditions from the mono infection. CF 5-6.
In October 2013, orthopedic specialist Dr. Vega conducted an independent medical exam
(“IME”). According to the report, Plaintiff indicated that his job was mainly sedentary. Def.
SUMF ¶ 43. In the IME, Dr. Vega determined that Plaintiff’s multiple medical conditions did not
preclude sedentary work (CF 275-276), as Plaintiff’s multiple subjective symptoms were not
corroborated by objective diagnostic exams that indicated an inability to perform sedentary
work. As such, Dr. Vega reported that Plaintiff was not disabled from February 1, 2013 onward.
Def. SUMF ¶ 43. Plaintiff was awarded SSDI benefits in October 2013. During the examination
for those benefits, disability examiner Dr. Park determined that “based on the medical evidence
the claimant retains a RFC [residual functional capacity] for [] sedentary work.” Def. ¶ 44;
SUMF CF 2117.
In November 2013, the Committee notified Plaintiff that it was upholding the denial of
LTD benefits, on the basis that Plaintiff had failed to provide objective medical evidence of his
ongoing disability as required by the Plan. CF. 1
d. First LTD Remand Review
Plaintiff filed suit in May 2014, and in May 2015 he notified Defendants of certain items
“missing from the administrative record.” CF 3629. In a motion dated December 2015,
Defendants conceded that the final benefit determination on appeal was based on an incomplete
administrative record (Docket No. 28-1, 2), and accordingly Defendants sought voluntary
remand. Def. SUMF ¶ 48. By Order dated January 21, 2016, this Court granted Defendants’
voluntary request for remand and stayed the lawsuit pending the Committee’s “completion of the
evidentiary record and review of the full record.” Docket No. 35, 1-2.

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Following remand, Plaintiff did not submit additional medical evidence regarding the
ongoing nature of his medical condition, but he did take issue with the Committee’s
characterization of his job requirements. Def. SUMF ¶ 50; CF 574-575 (“The Administrative
Records reflects that Defendants over the course of time, downgraded my job description from
light to medium with travel to sedentary, travel not mentioned, without providing any
documentation . . .”). The Committee solicited three medical reviews to address Plaintiff’s job
requirements:
1) Occupational Demands Analysis (“ODA”): this report, based on Plaintiff’s former
colleague Edio Zampaglione, opined that Plaintiff’s position included a 20% travel
requirement that is “domestic” and “very flexible.” Def. SUMF ¶ 51; CF. 1633.
2) Dr. Kelly Agnew (Orthopedic Surgeon): Having reviewed the ODA, Dr. Kelly noted
that Plaintiff’s job duties were “basically sedentary” and that Plaintiff’s medical
condition did not preclude him from satisfying the 20% occupational travel
requirement. Def. SUMF ¶ 52; CF 3655.
3) Horizon Health Care Consultants: Horizon conducted an independent vocational
review, based on Plaintiff’s capacity for sedentary work as determined by orthopedic
surgeon Dr. Vega and physical therapist Mr. Pul. Based on the Dictionary of
Occupational Titles, Horizon determined that Plaintiff’s occupation as Deputy
Director of Medical Affairs qualified as ‘sedentary.’ Horizon further determined that
Plaintiff was not “totally disabled” from performing either this sedentary job or any
position for which Plaintiff is or could become qualified by virtue of his education,
training, and experience. Def. SUMF ¶ 53.
Citing the above factors as well as the material added to the administrative record after
the voluntary remand, the Committee upheld the denial of Plaintiff’s LTD benefits in March
2016 (Def. SUMF ¶ 54), at which point Plaintiff filed a motion to compel production of
additional material. By Order dated December 8, 2016, Magistrate Judge Cathy Waldor
remanded the case once again, in order for Defendants to produce “travel and expense reports”—

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such as time logs, expense accounts, airline records, etc—that Plaintiff could present on remand
as evidence of his position’s vocational requirements. Docket No. 50, 4-5.
e. Second LTD Remand Review
Following the second remand, Plaintiff argued that the job duties were light to moderate
with travel. Def. SUMF ¶ 58. In support of this contention, Plaintiff submitted two reports:
1) Sonya Mocarski (Vocational Rehabilitation Specialist): based on travel logs and
discussions with Plaintiff, Ms. Mocarski opined that Plaintiff’s job required “light to
medium” duties and that “[a] degree of travel, even one day a week, would be
considered ‘light’ work and not sedentary.” Def. SUMF ¶ 59; CF 1999.
2) Dr. Arena (M.D.): based on a review of the medical records, Dr. Arena opined that
Plaintiff “has not been able to perform his job duties . . . from June 2012 through to
the present time.” CF 1970.
To address these two medical evaluations, the Committee solicited two further medical
reviews:
1) Dr. Agnew: he opined that 1) Plaintiff was not precluded from a predominantly
sedentary job; 2) that the determination by Dr. Arena and Ms. Mocarski that
Plaintiff’s job involved “light to medium” exertion was inconsistent with the record;
and 3) that even if one assumes that Plaintiff’s job requirements are accurately
characterized in the ODA (noting a 20% travel requirement) and in Ms. Mocarski’s
report, Plaintiff would still not be disabled from such position from February 1, 2013
to June 5, 2014. Def. SUMF ¶ 62; CF 5344-46.
2) Dr. Thomas (Orthopedic Surgeon): he performed an independent physician review,
and determined: 1) Dr. Vega’s IME hip exam and Dr. Colizza’s checkup did not
indicate that Plaintiff was restricted by his right hip; 2) Dr. Golombek’s treatment and
notes did not indicate that Plaintiff suffered from rheumatoid arthritis or other
objectively documented worsening to his right elbow, left wrist or cervical spine; 3)
Dr. Bouillon’s notes indicate ion levels within a normal range; 4) Dr. Park’s SSA
review and Dr. Vega’s exam indicate normal range of motion in the elbow, wrist, and
lumbar spine; and 5) Plaintiff was capable of performing the job requirements—as
characterized by Ms. Mocarski and the updated ODA—from February 1, 2013
through June 5, 2014, at which date Plaintiff could work at any job for which he was
or could become qualified by education or training.
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After Drs. Agnew and Thomas submitted their reports, Plaintiff submitted responses from
Dr. Arena and Ms. Mocarski. Def. SUMF ¶ 65. By letter dated November 3, 2017, the
Committee notified Plaintiff that, having considered the additional letters and evidence, it
determined that Plaintiff was not disabled from performing his job and it therefore upheld the
denial of the LTD benefits. Def. SUMF ¶ 66.
II.

LEGAL STANDARD
a. Summary Judgment under Rule 56
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 where “the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). As the moving party, Defendant bears the burden of showing the absence of any
genuine issues of material fact. Celotex, 477 U.S. at 323. A fact is only ‘material’ if it will affect
the outcome of the lawsuit, and a dispute of a material fact is only ‘genuine’ 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). At the summary judgment stage, “inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the opposing party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Once the moving party satisfies its burden under Rule 56, the non-moving party “must do
more than simply show that there is some metaphysical doubt as to the material facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007). Plaintiff may not merely “rest on speculation and conjecture in
opposing a motion for summary judgment” (Fiorentini v. William Penn Sch. Dist., 665 F. App’x
229, 233 (3d Cir. 2016)), but instead must present “more than a scintilla of evidence showing

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that there is a genuine issue for trial.” Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir.
2005). In deciding a motion for summary judgment, the court’s role is to determine whether
there is a genuine issue for trial, and not to “to weigh the evidence and determine the truth of the
matter.” Anderson, 477 U.S. at 249.
b. Standard of Review for Denial of Benefits under ERISA
Under ERISA § 502(a)(1)(B), codified at 29 U.S.C. § 1132(a)(1)(B), a participant in a
benefits plan covered by ERISA may bring civil suits to “to recover benefits due to him under
the terms of his plan.” Federal courts examine such challenges under de novo review unless, as
here, “the benefit plan expressly gives the plan administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the plan's terms.” Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 102 (1989). In such case, courts apply the more deferential standard of
arbitrary and capricious. Miller v. Am. Airlines, Inc., 632 F.3d 837, 844 (3d Cir. 2011). In the
Third Circuit, this standard is often referred to interchangeably as an abuse of discretion
standard. See Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 526 n.2 (3d Cir. 2009)
(“[A]t least in the ERISA context,” the standards of arbitrary and capricious and abuse of
discretion are “practically identical”).
A court may generally only conduct its review by reference to the record as it existed
before the plan administrator when it made the challenged decision. Johnson v. UMWA Health
& Ret. Funds, 125 F. App’x 400, 405 (3d Cir. 2005); Kosiba v. Merck & Co., 384 F.3d 58, 67
n.5 (3d Cir. 2004) (“[T]he record for arbitrary-and-capricious review of ERISA benefits denial is
the record made before the plan administrator, and cannot be supplemented during litigation.”).
One exception, however, is that a court may “consider evidence of potential biases and conflicts
of interest that is not found in the administrator's record.” Howley v. Mellon Fin. Corp., 625 F.3d

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788, 793 (3d Cir. 2010). Where conflicts of interest exist, the deferential arbitrary and capricious
standard still applies. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). The significance
of such conflict of interest “will depend upon the circumstances of the particular case” (Id. at
108) but is only important “where there is evidence that the benefits denial was motivated or
affected by the administrator's conflict.” Id. at 120; see also Schwing, 562 F.3d at 525 (“[A]ny
conflict of interest [i]s one of several factors in considering whether the administrator or the
fiduciary abused its discretion.”).
Under the arbitrary and capricious standard, courts should uphold the plan administrator’s
determination to deny benefits unless it was “without reason, unsupported by substantial
evidence, or erroneous as a matter of law.” DeLong v. Aetna Life Ins. Co., 232 F. App’x 190,
192 (3d Cir. 2007) (quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993)).
In its review, the court “is not free to substitute its judgment for that of the plan administrator or
fiduciary in determining eligibility for plan benefits.” Id. at 184; Doroshow v. Hartford Life &
Accident Ins. Co., 574 F.3d 230, 234 (3d Cir. 2009). This narrow review “disallows a court from
substituting its own judgment for a rational decision made by the plan administrator.” DeLong,
232 F. App’x at 192.
III.

DISCUSSION
In their moving papers, Defendants argue that the administrative record and review

process, including the evidence supplemented by the two remand reviews, does not demonstrate
that the denial of Plaintiff’s LTD benefits was arbitrary and capricious. In particular, Defendants
argue that the record—including Plaintiff’s treatment record, the orthopedic IME, the
occupational ODA, the physical therapy PCA, and the various independent vocational and
physician reviews—confirm that “Plaintiff was not precluded from performing his regular

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occupation as of February 1, 2013 or any job for which he is or could become qualified, as of
June 5, 2014.” Docket No. 71-2, 6-7.
Plaintiff counters that the determination was arbitrary and capricious due to “structural
and procedural irregularities,” and because a “conflict of interest impacted Defendants [sic]
decision.” Docket No. 74, 4-5. Although not organized as such in his moving papers, Plaintiff’s
various arguments appear to group within four broad claims: 1) the denial of LTD benefits was
based on a previously undisclosed version of the Plan; 2) Defendants improperly reclassified
Plaintiff’s job requirements from “light to medium” to “sedentary” during the LTD review; 3)
Defendants and various reviewing physicians were improperly motivated by conflicts of interest;
and 4) miscellaneous arguments indicate the presence of genuine issues of material fact.
In reviewing the motion at bar, this Court has meticulously examined the parties’ 56.1
statements, the disability Plan, as well as the numerous medical reports, plan documents, and
inter-party correspondence contained in the nearly 7,000 page claim file. Based on this review,
this Court is satisfied that Defendants’ decision to deny LTD benefits was not arbitrary and
capricious or an abuse of discretion, but rather was reasonable and supported by substantial
evidence. Because Plaintiff fails to raise a genuine issue of material fact, this Court will grant
Defendants’ motion for summary judgment on both the claim for denial of benefits under ERISA
502(a)(1)(B) and for breach of fiduciary duty under ERISA § 502(a).
a. The Committee’s Denial of LTD Benefits was Reasonable and Supported by
Substantial Evidence
Based on the administrative record following the two remand reviews, this Court is
satisfied that Defendants have reasonably relied on substantial evidence to support their
determination that Plaintiff was not disabled from performing the essential duties of his position.
Following Defendants’ voluntary remand, Plaintiff did not submit additional medical
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documentation to demonstrate the ongoing nature of his disability, but he did take issue with the
Committee’s characterization of the job requirements. To address this concern, the Committee:
1) obtained the ODA based on Plaintiff’s former colleague Edio Zampaglione; 2) received a
medical review from orthopedic surgeon Dr. Agnew; and 3) obtained an independent vocational
review from Horizon, which determined that Plaintiff was not “totally disabled” from performing
either this sedentary job or any position for which Plaintiff is or could become qualified by
education, training, or experience.
Following Plaintiff’s submission of medical reports from Dr. Arena and Ms. Mocarski
subsequent to the second remand, the Committee solicited two further medical reports, in order
to determine whether Plaintiff could meet the essential travel requirements of his former
position. In the first report, Dr. Agnew reviewed the 2016 ODA, in which Mr. Zampaglione
noted that the position required up to 20% of “very flexible” “domestic” travel, as well as the
vocational rehabilitation assessment from Ms. Mocarski. Dr. Agnew concluded that even if both
reports accurately characterized the physical and environment job requirements, Plaintiff would
nevertheless not be disabled from such position from February 1, 2013 to June 5, 2014. CF 5346.
Subsequent to the second remand, Defendants also solicited an independent physician
review from orthopedic surgeon Dr. Thomas, who thoroughly reviewed Plaintiff’s treatment
history, including an examination of Dr. Vega’s IME hip exam, the notes from rheumatologist
Dr. Golombek, the metal ion testing and prosthesis evaluation from orthopedist Dr. Colizza,
orthopedic surgeon Dr. Bouillon’s notes, and Dr. Park’s SSA review. In evaluating all of this
medical evidence—and proceeding from the same assumption that Ms. Mocarski and Mr.
Zampglione accurately characterized the exertional requirements of the position—Dr. Thomas
similarly concluded that Plaintiff was not disabled from performing his job. In view of the

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substantial medical evidence examined by the Committee and its reviewing physicians, this
Court is satisfied that Defendants did not abuse their discretion or act in an arbitrary and
capricious manner when they denied Plaintiff LTD benefits.
b. Plaintiff Has Not Raised a Genuine Issue of Material Fact
Not only have Defendants adequately demonstrated that the denial of LTD benefits was
reasonable and supported by substantial evidence, Plaintiff has failed to indicate that there are
genuine issues of material fact that preclude summary judgment. In short, Plaintiff’s arguments
are either unsupported by the record or fail to rebut or discredit the substantial evidence that
underlies Defendants’ decision.
i. The Operative Disability Plan Has Not Changed During the Course of
Litigation
In his moving papers, Plaintiff argues, for the first time in this litigation, that the “Plan
(‘2014 Plan’) presented here is not the Plan that was in effect during the Plaintiff’s disability
case” (Pl. SUMF ¶ 2) and that this ‘2014 Plan’ “did not appear in any of the Remands . . . was
not part of the original Administrative Record, did not exist in 2012 and furthermore was not
available for or known to the administrators for review at the time Plaintiff’s claim was made,
evaluated and processed.” Docket No. 74, 18 (emphasis in original); see also id. 5 (“The first
and foremost issue in this case has been the preparation, construction, alteration and subsequent
manipulation of the original Administrative Record and Case File.”); Pl. SUMF ¶ 18 (Defendants
“covertly and surreptiously added a never before seen, newly written 2014 Plan Document”).
In light of the serious nature of this allegation, this Court has scrupulously reviewed the
administrative record, including the Plan as appended to Plaintiff’s May 16, 2014 complaint
(Docket No. 1-1, “Compl.,” Ex. A); the plan as produced to Plaintiff on January 6, 2015 pursuant
to Defendants’ discovery disclosures under Rule 26(a)(1) (Docket No. 91-3, Reply Ex. 1); the
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Plan as produced to Plaintiff on April 1, 2015 in response to Plaintiff’s discovery request for a
copy of the “Summary of my LTD benefits” (Docket No. 91-4, Reply Ex. 2); and the plan as
presented in Defendants’ motion at bar (Docket No. 71-5, Ex. A).
Having conducted this review, this Court is satisfied that Defendants have not, as
Plaintiff argues, “covertly and surreptiously added” a previously undisclosed Plan. Instead,
Plaintiff’s May 2014 complaint appears to append an incomplete version of the Plan, in which
the document ends mid-sentence on page 29 (“The Savings & Retirement Plan – a plan intended
to qualify under Section 401(a) and 401(k) of the Internal . . .”). Plaintiff’s incomplete version
attached to the complaint omits the subsequent pages that complete the sentence and detail the
terms and conditions for LTD benefits eligibility. As Defendants produced to Plaintiff a full and
complete copy of the Plan on numerous occasions during the administrative review process,
Plaintiff’s argument is unsupported by the record and accordingly fails to raise any genuine
issues of material fact.
ii. Defendants Have Not Impermissibly Reclassified Plaintiff’s Job
Requirements in Order to Deny LTD Benefits
Plaintiff argues that “An egregious action by the Defendants was to reclassify the
Plaintiff’s job duties from light to medium with travel to an entirely new description of sedentary
activity level of exertion for his job duties.” Docket No. 74, 8. As evidence that Defendants
initially classified the job duties as “light to medium,” Plaintiff cites two Bayer human resource
documents in the claim file, which both indicate “light to medium with travel” under the
subsection header “Job Description/Occupation/DOT.” CF 252; 230. The job description to
which Plaintiff cites, however, further notes that there was “no job description yet on file;
requested.” Such documents provide an insufficient basis to substantiate Plaintiff’s argument that

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Defendants reclassified his job duties from “light to medium” to sedentary, as the quoted
documents themselves indicate that there was “no job description on file.”
Even if this Court accepted Plaintiff’s argument, such reclassification would not be
dispositive because the entire issue is ancillary to this Court’s primary review. Namely, this
Court’s task is not to assess whether Defendants accurately labeled the job requirements, but
rather whether Defendants determined—reasonably and supported by substantial evidence—that
Plaintiff was “unable to perform the essential duties of [his] regular occupation.” Plan Doc. 125.
To make that determination, both Dr. Agnew and Dr. Thomas based their review on the job
description from Plaintiff’s own expert’s as well as the 20% travel requirement from Mr.
Zampaglione’s ODA. Based on such an assumption, both doctors found that Plaintiff was not
precluded from performing his job duties. Further, Plaintiff has provided no objective medical
evidence to contradict the medical determination that he is capable of meeting such travel
demands. Accordingly, this Court is satisfied that Defendants did not abuse their discretion by
determining that Plaintiff could satisfy the travel requirements of his position.
iii. The Termination of LTD Benefits Was Not Impermissibly Based on Bias
or Conflict of Interest
In his opposition papers, Plaintiff argues that Defendants’ review process was
compromised by structural conflicts of interest, because the Plan is “primarily funded by Bayer
Corporation’s general assets and Bayer Corporation has sole discretion to award or deny LTD
benefits.” Docket No. 74, 34. Plaintiff further argues that the independent medical reviews
Defendants obtained before denying the LTD benefits were similarly compromised by bias or
conflicts of interest. See, e.g., Pl. SUMF ¶ 22 (“Funny that coincidently and surreptitiously, all
three experts, used the same wording — lacking objective medical evidence . . . [i]t begs the

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question as to whether they [sic] prompted or scripted – instructed before hand. . .. Were they
instructed on how to present their findings?”).
As previously noted, subsequent to the Supreme Court’s ruling in Glenn, courts in the
Third Circuit do not apply a heightened level of scrutiny regarding alleged conflicts of interest
and the denial of benefits under ERISA. Rather, the same deferential standard of arbitrary and
capricious applies, and any bias constitutes just “one of several factors in considering whether
the administrator or the fiduciary abused its discretion.” Schwing, 5623 F.3d at 525. Beyond the
bald assertion that the decision was compromised by bias, Plaintiff has identified no evidence—
within the administrative record or outside of it, pursuant to Howley—that indicates that the
benefits denial was, in fact, “was motivated or affected by the administrator's conflict.” Metro
Life, 554 U.S. at 120. While Bayer may primarily fund the Plan, such funding is not dispositive
of an abuse of discretion. Further, the similar wording employed by the medical experts, noting
the lack of “objective medical evidence” supporting a continued disability, does not indicate bias
because such language represents the standard by which Defendant may cease to provide LTD
benefits under the Plan. Plan Doc. 122 (“Benefits will stop automatically if you: . . . Do not
provide satisfactory objective medical evidence of your continuing disability by the date
required.”). Accordingly, this Court will not deny Defendants motion for summary judgment on
the basis that decision to terminate LTD benefits was compromised by conflicts of interest.
iv. Plaintiff’s Other Arguments Fail to Raise a Genuine Issue of Material Fact
Plaintiff advances other arguments for why summary judgment is not appropriate. Having
reviewed the moving papers and the administrative record, this Court is satisfied that such
arguments do not give rise to genuine issues of material fact.

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Plaintiff argues that “Defendants never define, describe, qualify or quantify anywhere in
the Disability Plan plain language what they consider as ‘Objective Medical Evidence.’” Pl.
SUMF ¶ 6. However, the Plan specifically provides that the provision of such OME is
determined by “the company or its delegate in its sole discretion” (Plan Doc. 130), so the failure
to define OME does not render the decision arbitrary and capricious under Firestone Tire. While
the administrative record contains medical write-ups from the period June to December 2012
from Dr. Orlandoni (PCP), Dr. Golombek (rheumatologist), Dr. Bouillon (orthopedic surgeon)
and Dr. Colizza (orthopedist), Plaintiff has not supplemented the administrative record during the
appeal and two remands with any updated medical records from these providers to document any
ongoing medical disability. As such, it is not the case that Defendants have received and
subsequently rejected Plaintiff’s medical evidence for being insufficiently “objective”; instead,
Plaintiff has wholly failed to provide any medical evidence from these providers to confirm that
he continued to receive medical treatment after December 2012. As stated in the Plan, LTD
benefits “will stop automatically if you: . . . are no longer under the regular care of a physician
whose specialty or experience is appropriate for your condition.” Plan Doc. 122.
Plaintiff argues that the Committee acted arbitrarily and capriciously because they failed
to rebut the medical opinions advanced by Plaintiff’s medical experts. See, e.g., Pl. SUMF ¶ 19
(“A reasonable factfinder would conclude that Ms. Mocarski’s expert report . . . most accurately
represent the Plaintiff’s true job duties.”). This argument misstates the relevant standard for this
Court’s review of the denial of benefits under ERISA. This Court must uphold the Committee’s
determination if it was reasonable and supported by substantial evidence. If such evidentiary
support exists, it is not dispositive that Plaintiff’s expert offers an opposing medical opinion, as
plan administrators as not obligated to defer to the medical opinions of Plaintiff’s physicians and

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experts. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003); Stratton v. E.I.
DuPont De Nemours & Co., 363 F.3d 250, 258 (3d Cir. 2004) (“A professional disagreement
[between the parties’ medical experts] does not amount to an arbitrary refusal to credit.”).
At numerous points in his motion, Plaintiff contends that Defendants are conspiring to
withhold relevant information. See, e.g., Pl. SUMF ¶ 13 (“An ongoing genuine issue and
material fact in dispute in this case is the Defendants’ recalcitrant efforts to withhold information
in their possession.”); id. ¶ 18 (“Defendants manipulate and delete important information that
counters their position”)); id. ¶ 22 (“Plaintiff truly and strongly believes that the Defendants are
still withholding materials.”). Beyond the bald assertion of wrongdoing, Plaintiff provides no
evidence—and this Court finds none—that Defendants are “manipulating and deleting”
information in their position or purposely withholding relevant materials. While Plaintiff cites
various records that Defendants produced subsequent to the first remand, such remand was
voluntary at the request of Defendants, to allow for “completion of the evidentiary record and
review of the full record.” Docket No. 35, 2. Further, Plaintiff provides no case law authority for
the proposition that this Court should draw adverse inferences against Defendants on the basis of
that additional documents were produced following remand. This Court is satisfied that
Defendants supported their denial of LTD benefits with substantial evidence, based on the
administrative record as supplemented by the evidence produced following the two remand
reviews. As such, Plaintiff’s argument does not present a genuine issue of material fact.
c. Equitable Relief Under ERISA § 502(a) is Not Appropriate
In addition to a claim for denial of benefits under ERISA § 502(a)(1)(B), Plaintiff also
asserts a claim for breach of fiduciary duty under ERISA § 502(a). Compl., 2. Section 502(a)(3)
creates an equitable remedy for ERISA plan beneficiaries “A) to enjoin any act or practice which

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violates any provision of this subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this
subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). Such equitable relief is not
appropriate, however, where the Plaintiff otherwise has an adequate remedy under other
provisions of Section 502. Varity Corp. v. Howe, 516 U.S. 489, 490 (1996) (“In fact, § 502’s
structure suggests that Congress intended the general “catchall” provisions of subsections (3) and
(5) to act as a safety net, offering appropriate equitable relief for injuries caused by violations
that § 502 does not elsewhere adequately remedy.”) (emphasis added); Ream v. Frey, 107 F.3d
147, 152 (3d Cir.1997) (“Where Congress otherwise has provided for appropriate relief for the
injury suffered by a beneficiary, further equitable relief ought not be provided.”); Precopio v.
Bankers Life & Cas. Co., 2004 WL 5284512, at *31 (D.N.J. Aug. 10, 2004) (“[U]nder Varity
and Ream, where a participant or beneficiary seeks a remedy that is otherwise recoverable under
other provisions of Section 502, the individual cannot also seek that same remedy via a breach of
fiduciary duty claim under Section 502(a)(3)(B)'s catchall provision.”).
In his complaint, Plaintiff alleges that Defendants breached their fiduciary duty by,
among other things, “fail[ing] to perform their administrative duties,” failing “to provide
[Plaintiff’s] plan benefits in accordance with the plan,” “through purported conflicts of interest,”
and by “ignoring” the medical opinions of certain physicians. Compl. ¶¶ 4, 10-12, 14-15, 17, 21.
The complaint indicates that the alleged breach of fiduciary duty consisted of the denial of LTD
benefits. Compl. ¶ 24 (“I suffered cognizable losses as a result of Bayer Corporation's breach of
their fiduciary duty. As a result of Bayer Corporation's actions, I was denied my LTD benefits.”).
Plaintiff has an adequate remedy to address such injury, namely the first cause of action for
denial of benefits under ERISA Section 502(a)(1)(B). Because the equitable catchall provision in

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Section 502(a)(3) is not appropriate for injuries otherwise recoverable under other provisions of
Section 502, this Court will grant Defendants motion for summary judgment on this claim.
IV.

CONCLUSION
For the forgoing reasons, this Court will grant Defendants’ motion for summary

judgment and this Court will dismiss with prejudice both Plaintiff’s claim for denial of benefits
under § 502(a)(1)(B) as well as Plaintiff’s claim for breach of fiduciary duty under ERISA §
502(a). An appropriate Order accompanies this Opinion.

/s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge

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