HOCHEISER v. LIBERTY MUTUAL INSURANCE COMPANY et al

Filing 87

OPINION filed. Signed by Chief Judge Freda L. Wolfson on 2/2/2021. (jmh)

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*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID HOCHEISER,
Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY,
et al.,

Civil Action No. 17-06096 (FLW)
OPINION

Defendants.

WOLFSON, Chief Judge:
Plaintiff David Hocheiser (“Plaintiff” or “Hocheiser”) brought this action against
Defendant Liberty Mutual Insurance Company (“Defendant” or “Liberty”), for the recovery of
disability benefits pursuant to the Wells Fargo & Company Group Disability Income Policy, (the
“LTD Policy”), under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §
1001(a)(1)(B), et seq. (“ERISA”). Presently before the Court are Motions for Summary Judgment;
Hocheiser moves for summary judgment seeking to reverse the termination of his benefits, and
Liberty cross-moves for summary judgment. For the reasons that follow, Liberty’s motion is
GRANTED; and Plaintiff’s motion is DENIED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Hocheiser, who was born in 1969, was 51 years old at the time these Motions were filed.

(Plaintiff’s Statement of Undisputed Material Facts (“Plaintiff SOF”), ¶ 1.) Prior to ceasing work
at age 44, Hocheiser was employed full-time by Wells Fargo & Company (“Wells Fargo”) as a
mortgage consultant. (Plaintiff SOF, ¶ 2.) In his last full year of employment with Wells Fargo,
Hocheiser earned $471,211.62 in salary and commissions. (Plaintiff SOF, ¶ 20.)

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Hocheiser began reporting lower back pain in 2005. (Liberty’s Statement of Undisputed
Material Facts (“Liberty SOF”), ¶ 21.) From 2005 through 2011, he sought treatment for the pain
with chiropractor, Russell Brokstein, who is Hocheiser’s brother-in-law. (Liberty SOF, ¶ 21.) In
2011, however, Hocheiser began experiencing more widespread pain, including tingling and
numbness, and in July 2011, Dr. Dean Filion, a spine and sports medicine physician, diagnosed
Hocheiser with mild acute left lumbar radiculitis, multilevel lumbar herniated nucleus pulposus at
L4-5 and L5-S1, multilevel lumbar stenosis, resolved cervical strain sprain with myofascial pain,
and stable median neuropathy at the wrists. (Plaintiff SOF, ¶¶ 23-24.)
Sometime in July 2013, Hocheiser exacerbated his back pain “getting out of the shower” a
day after he was moving some boxes. (Plaintiff SOF, ¶ 26.) At a chiropractic appointment later
that month, Brokstein noted that Hocheiser’s condition was “worse” and performed electric
stimulation and hydroculation therapy treatment for the first time. (Plaintiff SOF, ¶ 26.) Hocheiser
continued to experience worsened cervical and lumbar spinal pain over the next several weeks, to
the point where it became difficult to sit during the day and sleep at night. (Plaintiff SOF, ¶ 27.)
Brokstein referred Hocheiser for cervical and lumbar imaging. (Plaintiff SOF, ¶ 28.) As for the
cervical spine, the imaging revealed that although curvature and alignment were normal, and there
was no compression fracture, Hocheiser suffered a disc herniation at C6-7 resulting in “mildmoderate right-sided central canal stenosis” and possible ventral right cord impingement.
(Plaintiff SOF, ¶ 29.) As for the lumbar spine, imaging revealed multilevel degenerative disc
disease with facet arthropathy of the lumbar spine, most notable at L4-5 and L5-S1. (Plaintiff
SOF, ¶ 29.)

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A.

Liberty Approves Hocheiser’s Claim for Short Term Disability Benefits

On September 24, 2013, Hocheiser ceased working, and on the following day, he submitted
a claim for short term disability benefits, claiming that he was unable to work due to lower back
and neck pain. (Plaintiff SOF, ¶ 30; Liberty SOF, ¶ 36.)
From October 2013 to January 2014, Hocheiser consulted with a variety of medical
professionals regarding his pain, including neurosurgeon Dr. Patrick F. O’Leary, orthopedic
surgeon Dr. Alexander Vaccaro, rheumatologist Dr. Ronald MacKenzie, neurologist Dr. Jonathan
Goldstein, physiatrist Dr. Alexander Simotas, physical therapist Linda Lennox, sports medicine
specialist Dr. Dhimant Balar, neurologist Dr. Megan Leitch, and neurogeneticist Dr. William
Johnson. (Plaintiff SOF, ¶¶ 33-56.) Although most of Plaintiff’s treating physicians did not
provide findings about Hocheiser’s ability to work, Dr. Leitch and Dr. Simotas did. (Plaintiff SOF,
¶¶ 33-56.)
During his visit with Dr. Leitch, Hocheiser reported that he was “concerned that he has a
genetic condition” because all three of his children have been clinically diagnosed with
acromicriodysplasia. (Plaintiff SOF, ¶ 47; Liberty SOF, ¶ 54.) Upon examination, Dr. Leitch
found Hocheiser to be “well developed, well nourished, in no acute distress” with “normal full
range of motion of all joints.” (Liberty SOF, ¶ 54) (citing ECF No. 72 (“Admin. Record”) at 2058.)
However, Dr. Leitch noted the presence of muscle stiffness and neck and back pain. (Admin.
Record at 2061.) Dr. Leitch prescribed baclofen for stiffness and pain and noted that he was “not
sure how long the patient will be unable to work,” but “he should remain off of work while we
continue to investigate what might be the cause of his symptoms.” (Id. at 2061.) Similarly,
Hocheiser informed Dr. Simotas that “[t]here has been some agreement that he [has a] familial,
disease problem which is acromicro-dysplasia [which] is clinically related to his current

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symptomatology.”

(Liberty SOF, ¶ 55) (citing Admin. Record at 3807.)

Following an

examination, which revealed reduced flexion and extension, Dr. Simotas stated that Hocheiser “is
in significant pain stiffness and unable to function at a normal level to sustain employment. . . . He
is unable to work and expect recovery to take at least 2-3 months.” (Admin. Record at 3808.)
Neither Dr. Leitch nor Dr. Simotas made any finding of a genetic cause for his condition.
Based on these examinations and diagnoses, Liberty concluded that impairment was
supported through February 6, 2014, which was six weeks from Hocheiser’s last treatment.
(Liberty SOF, ¶ 57.) Liberty also concluded that this would “give the time needed to continue
diagnostic testing and . . . to attempt to determine the cause of [Hocheiser’s] symptoms . . . .”
(Liberty SOF, ¶ 54) (citing Admin. Record at 72.) On January 21, 2014, Liberty called Hocheiser
for an update regarding his treatment, and Hocheiser informed Liberty that he was scheduled for
additional testing with neurogeneticist, Dr. Johnson, to determine if there was a genetic cause to
his symptoms. (Liberty SOF, ¶ 58.) Accordingly, Liberty approved Hocheiser’s short term
disability claim through March 25, 2014, the full six-month duration of those benefits. (Liberty
SOF, ¶ 59.)
B.

Liberty Denies Long Term Disability Benefits

Following Hocheiser’s approval for short term benefits, Liberty opened Hocheiser’s claim
for Long Term Disability benefits (“LTD benefits”). (Liberty SOF, ¶ 60.) Wells Fargo established
and maintained an employee welfare benefit plan (the “Plan”) that included short-term disability
and long-term disability benefits. (Liberty SOF, ¶ 2.) To fund the Plan’s LTD benefits, Wells
Fargo purchased from Liberty a group policy of long term disability insurance, policy number
GF3-850-289424-01. (Liberty SOF, ¶ 4.) The LTD Policy pays out LTD benefits equal to 65%
of the claimant’s Basic Monthly Earnings, subject to a $27,083 per month maximum benefit, if the

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claimant proves he or she is “Totally Disabled,” under the “Regular Attendance of a Physician,”
and receiving “Appropriate Available Treatment.” (Liberty SOF, ¶ 5.) For the first 24 months, a
claimant is “Totally Disabled” if, “as a result of Injury or Sickness, [he] is unable to perform the
Material and Substantial Duties of his Own Occupation.” (Liberty SOF, ¶ 6.) After receiving
LTD benefits for 24 months, a claimant is “Totally Disabled” if he “is unable to perform, with
reasonable continuity, the Material and Substantial Duties of Any Occupation.” (Liberty SOF, ¶
6.) If the claimant remains Totally Disabled and continues to submit sufficient proof of such, he
or she may be entitled to benefits until the age of 67, assuming none of the limitations apply.
(Liberty SOF, ¶ 7.) Under the LTD Policy, “Own Occupation” is defined as “the Covered Person’s
occupation that he was performing when his Disability . . . began.” (Liberty SOF, ¶ 8.) “Material
and Substantial Duties” means “responsibilities that are normally required to perform the Covered
Person’s Own Occupation, or any other occupation, and cannot be reasonably eliminated or
modified.” (Liberty SOF, ¶ 9.) As mentioned above, the LTD Policy requires the claimant to
submit proof of continued Disability. (Liberty SOF, ¶ 11.) “Proof” is defined under the LTD
Policy as “the evidence in support of a claim for benefits and includes, but is not limited to . . . 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.”
(Liberty SOF, ¶ 11.)
By letter dated May 7, 2014, Liberty notified Hocheiser that he failed to meet his burden
of proving long-term disability under the LTD Policy. (Plaintiff SOF, ¶ 128) (citing Admin.
Record at 3454-3464.) Liberty based its decision on medical records obtained from Plaintiff’s
medical providers from July 25, 2011 to March 14, 2014, videorecorded observations of Hocheiser

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between February and March 2014, and the opinions and findings of a vocational consultant,
consulting physician, and consulting psychiatrist. (Admin. Record at 3454-3464.)
To support its decision, Liberty highlighted more than fifteen separate pieces of
documentation, including treatment notes and imaging results, provided by Plaintiff’s medical
providers from July 25, 2011 to March 14, 2014. (Id. at 3454-55.) Specifically, this documentation
included neurology treatment notes from Drs. Goldstein, Leitch, Johnson, and Hirano; orthopedic
treatment notes from Drs. O’Leary and Vaccaro; chiropractic treatment notes from Brokstein;
physical therapy notes from November 27, 2013 through March 3, 2014; and imaging of
Hocheiser’s lumbar spine, cervical spine, brain, and hips. (Id.)
With respect to the surveillance of Hocheiser, Liberty noted three specific observations on
February 17, 2014; February 18, 2014; and March 28, 2014. (Id. at 3455.) Liberty noted that on
February 17, 2014, Hocheiser was observed exiting his residence in the morning, driving himself
to a private residence, and departing the private residence more than ninety minutes later. (Id.)
While the investigator lost visual contact of Hocheiser after he left the private residence, it was
verified that he did not immediately return to his own residence. (Id.) Similarly, on February 18,
2014, Liberty claims that Hocheiser was observed exiting his residence in the morning and driving
himself to an unknown destination. (Id.) As visual contact was lost, the exact location could not
be determined; however, the investigator confirmed that Plaintiff did not return to the private
residence he visited the day before, nor did he return to his own residence by 12:00 p.m. (Id.)
Finally, on March 28, 2014, Hocheiser was seen arriving at his residence in the afternoon, staying
briefly, and then departing again. (Id.) According to the investigator, Hocheiser drove himself to
a nearby flower shop, then driving to a Walgreens pharmacy drive-thru and returning to his home.
(Id.)

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As for the vocational analysis, Liberty’s vocational consultant concluded “with a
reasonable degree of vocational certainty,” that “the typical physical demands of Mr. Hocheiser’s
occupations of Loan Interviewer are most often sedentary and light in physical demand with
sufficient opportunity at both levels of exertion.” (Id. at 3455-56.) In order to determine whether,
in light of the medical conditions reported by his treating providers, any impairments existed, and
if so, if those impairments would prevent Plaintiff from functioning in an occupational
environment and performing his Own Occupation, Liberty consulted with a physician and a
psychiatrist to review Plaintiff’s medical records. (Id.) After reviewing Hocheiser’s claim file, in
addition to the paper medical records, which included conversations with Dr. Hirano, Dr. Simotas,
and Dr. Leitch, the consulting neurologist found that although certain medical documentation and
Plaintiff’s own reports described incapacitating pain, the intensity of treatment did not reflect a
severity of pain or muscle tightness that would prevent Plaintiff from working in an occupational
setting to perform his Own Occupation. (Id.) Indeed, the consulting neurologist highlighted that
there was no change in treatment modalities to indicate that Plaintiff’s pain complaints were of a
severity that would interrupt his work. (Id.) Finally, the neurologist expressly concluded that the
genetic myopathy disorder which Hocheiser had raised, had not been validated by the testing and
medical review completed by his providers. (Id.)
Regarding Hocheiser’s anxiety diagnosis, the consulting psychiatrist similarly concluded
that there was insufficient evidence “to support a severity of psychiatric symptoms and complaints
that would prevent [Plaintiff] from performing [his] occupation from a psychiatric condition.” (Id.
at 3463.) The consulting psychiatrist also noted that there had not been an “intensity of psychiatric
treatment” which would indicate impairment, and therefore, Hocheiser suffered no restrictions or
limitations based upon his anxiety diagnosis. (Id.) According to Liberty, during a phone

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conversation on March 27, 2014, Hocheiser advised Liberty that he has been on the medication,
Zoloft, for roughly twenty years, and that he was no longer treating with a psychiatrist. Liberty
noted that this disclosure further supported the consulting psychiatrist’s conclusions. (Id.)
In denying the claim, Liberty also notified Hocheiser that he could administratively appeal
the decision, and if he were to do so, he should include:
all documentation, such as all treatment records to include, but not
limited to: office notes, consultation reports, psychiatric notes,
procedural reports, hospitalization records, physical and
occupational therapy notes, diagnostic and laboratory test results,
and all medications prescribed for the period of January 1, 2014
through the present from Dr. Filion, Dr. Goldstein, Dr. Leitch, Dr.
Johnson, Dr. Hirano, Dr. Simotas, Dr. MacKenzie, Dr. O’Leary, Dr.
Vaccaro, Dr. Brokstein, Dr. Rizvi, Dr. Broyer, and any other
provider that you have treated with for this period of disability which
you feel will support your claim.
(Id. at 3464.)
C.

Hocheiser’s First Appeal of Liberty’s Long Term Disability Claim Denial

By letter dated September 29, 2014, Hocheiser, represented by counsel, appealed Liberty’s
LTD Benefits claim denial (“First Appeal”). (Plaintiff SOF, ¶ 129) (citing Admin. Record at 317172.) In connection with his First Appeal, Hocheiser submitted additional medical records and
numerous letters from his treating physicians, including Dr. Tariq Rizvi, Dr. Leitch, Dr. Simotas,
Dr. Perry Herman, Brokstein, and massage therapists Kim Thormann and Charlene Boruch. (Id.)
Liberty assigned Hocheiser’s First Appeal to Appeal Review Consultant Lindsay Mack
(“Mack”) to conduct an independent review of Plaintiff’s claim with no deference to the initial
determination. (Liberty SOF, ¶ 121.) In November 2014, Mack referred Hocheiser’s medical
records to independent medical vendor, MES Solutions (“MES”), requesting that MES perform an
occupational analysis to assess Hocheiser’s claim and engage a board certified neurologist to
perform a review of Plaintiff’s file. (Plaintiff SOF, ¶ 136; Liberty SOF, ¶ 127.) As part of the
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occupational analysis, MES reviewed the vocational information, including statements provided
by Hocheiser’s former co-workers describing Hocheiser’s work-related activities, and concluded
that Hocheiser’s “occupation is most often performed at a sedentary to light level of physical
demand. Tasks are similar in both physical demand levels of this occupation so classification will
depend on the specific work environment.” (Liberty SOF, ¶ 128) (citing Admin. Record at 3158.)
MES noted that “part-time opportunity does exist in this occupation.” (Admin. Record at 3160.)
As for Liberty’s request for a review by a board certified neurologist, MES selected Dr.
Joshua Alpers. (Plaintiff SOF, ¶ 137.) Dr. Alpers provided a peer review report on December 2,
2014. (Liberty SOF, ¶ 132.) The doctor summarized the medical evidence available and, when
asked to identify supported diagnoses, noted that “[a] formal neurological diagnosis has not yet
been established for this claimant” and that Hocheiser “has had extensive evaluation attempting to
attribute [his] clinical features to an underlying genetic disorder without success.” (Admin. Record
at 3151.) However, Dr. Alpers also found that Hocheiser was “effectively incapable of working
from September 24, 2013 forward.” (Id.) Dr. Alpers reasoned that although Hocheiser’s exact
diagnosis was unknown, there “appear[ed] to be a genetic basis” for findings of “muscle
hypertrophy, pathological hyperreflexia, spasticity, mild weakness, and severe neck and low back
pain.” (Id.) Accordingly, Dr. Alpers recommended that because “the exact diagnosis remains to
be clarified and ongoing symptomatic management/optimization of his pain management is
expected,” the “case be reviewed again in two years.” (Id. at 3151-52.)
Based on Dr. Alpers’ report, Liberty overturned its prior denial of LTD Benefits in or
around December 2014. (Liberty SOF, ¶ 133.) Accordingly, Liberty approved benefits from
September 24, 2013, issued a retroactive payment to Hocheiser of over $200,000, and began
issuing monthly LTD payments to Hocheiser in the amount of $23,573.97. (Liberty SOF, ¶ 134.)

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D.

Liberty’s Continued Review of Hocheiser’s Long Term Disability Claim and
Its Termination of Benefits

Because Hocheiser’s First Appeal did not reveal a clear diagnosis, however, Liberty
continued evaluating Plaintiff’s inability to work and his right to LTD benefits. (Liberty SOF, ¶
136.) Indeed, on December 12, 2014, Hocheiser called Liberty, seeking information related to the
LTD Policy’s partial disability provision, which applies to disabled claimants who are working in
some capacity. (Liberty SOF, ¶ 135.) Although Hocheiser told Liberty that “since he is not
working part time, it’s not an issue,” the conversation indicated to Shannon Wright (“Wright”), a
claims manager working on Hocheiser’s claim, that Hocheiser might be working or contemplating
working in some capacity. (Liberty SOF, ¶ 135.) By letter dated December 16, 2014, Liberty
informed Hocheiser that it would obtain periodic updates from his treatment providers to assess
his symptoms and impairments, and would evaluate his claim on an ongoing basis to determine if
his symptoms and impairments continued to prevent him from performing his occupation. (Liberty
SOF, ¶ 136.) Liberty also requested that, in the meantime, Hocheiser complete several forms to
provide an understanding of his current condition, including an Activities Questionnaire. (Liberty
SOF, ¶ 136.) Finally, unbeknownst to Hocheiser at that time, Liberty contracted with a third-party
private investigator, ICS Merrill, to conduct surveillance on Hocheiser. (Liberty SOF, ¶ 135.)
On December 17, 2014, Wright referred Hocheiser’s claim to a consulting physician,
noting that Dr. Alpers “was to determine an impairing diagnosis, but outlined symptoms
attributable to a genetic disorder for which the claimant’s genetic testing was negative.” (Liberty
SOF, ¶ 137.)

Specifically, Wright asked that a reviewing neurologist indicate whether a genetic

disorder is supported by the medical record and whether further review by a geneticist or other
specialty is warranted. (Liberty SOF, ¶ 137.) Wright also requested medical records from
Hocheiser’s treating providers, and she noted that, once received, she would request that a
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neurologic consulting physician review the updated information. (Liberty SOF, ¶ 151.) Liberty
received records from Drs. Johnson, Leitch, and Herman, and physical therapy reports from
Forsgate Physical Therapy. (Liberty SOF, ¶¶ 152, 153, 158.)
On May 23, 2016, Liberty sent Hocheiser notice that his LTD Benefits were terminated at
the end of the Own Occupation period. (Plaintiff SOF, ¶ 163) (citing Admin. Record at 1183-97.)
Liberty did not compel Hocheiser to attend an in-person examination prior to terminating his claim.
(Plaintiff SOF, ¶ 163.) Rather, Liberty determined that although “Hocheiser may continue to
experience symptoms associated with his condition,” based on the totality of its clinical and
vocational reviews, “he is capable of full time sedentary work.” (Admin. Record at 1195.)
Specifically, Hocheiser could “perform with reasonable continuity the material and substantial
duties” of his occupation or other alternative occupations, and “[t]herefore, he no longer meets the
Wells Fargo & Company definition of disability beyond May 24, 2016.” (Id.) Accordingly,
Liberty concluded that the medical evidence available did not support a genetic disorder diagnosis,
nor did the medical evidence and clinical reviews demonstrate that Hocheiser’s claim of
impairment related to his symptoms of chronic pain, muscle stiffness, and spasms, prevented him
from performing full-time sedentary work. (Id. at 1195.) Liberty based this decision on medical
records received from Hocheiser’s providers; letters and correspondence received from Hocheiser
and his attorney; surveillance, business records, and internet reports; and clinical reviews and a
transferrable skills analysis. (Admin. Record at 1183-97.) In addition, Liberty also obtained
information regarding Hocheiser’s involvement in a previously undisclosed business venture,
Fields of Dreams, LLC (also known as “Sportika”), which seeks to build and operate one of the
largest indoor sports and entertainment complexes in the tri-state area. Indeed, despite forming

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the business on November 25, 2013, Hocheiser did not notify Liberty of his involvement until he
submitted the Activities Questionnaire in January 2015. (Admin. Record at 2852, 3055.)
Liberty informed Hocheiser that should he wish to administratively appeal the
determination, he should submit the following documentation:
Office treatment notes, therapy evaluations and progress notes,
psychiatric evaluations, test results, discharge summaries, procedure
reports, pharmacy records, restrictions and limitations and the
evidence to support them from March 2014, through present from
Dr. Leitch, Johns Hopkins Medicine, Forsgate Physical Therapy,
and any other treating providers.
Genetic test results including but not limited to ultrasonography,
MRI, echocardiography, muscle biopsy and exome sequencing from
March 2014 through present. Please include the genetic test results
conducted in early 2016 as well as any additional test results that
have been conducted since.
Proof of Mr. Hocheiser’s current Social Security Disability status as
well as all correspondence received from the Social Security
Administration regarding his claim status since the initial
application.
Earnings statements from Field of Dreams, LLC (Sportika), Soccer
Evolution Club and Premier Sportsplex, LLC, as well as any other
sources of income from September 2013, through present. In
addition please provide a copy of Mr. Hocheiser’s 2013, 2014 and
2015 Federal Income Tax returns with all schedules and
attachments.
(Id. at 1196.)
E.

Hocheiser’s Second Appeal of Liberty’s Long Term Disability Claim Denial
and Commencement of this Lawsuit

On November 21, 2016, Hocheiser sent a finalized appeal letter to Liberty (“Second
Appeal”). (Plaintiff SOF, ¶ 172.) Liberty assigned Hocheiser’s Second Appeal to Appeal Review
Consultant Nancy Winterer (“Winterer”), a Liberty employee with no prior role in Plaintiff’s
claim. (Liberty SOF, ¶ 354.) Winterer referred the file and specific questions to MLS, asking that

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a physician certified in Pain Management and Rehabilitation and Pain Medicine review Plaintiff’s
claim file, including his medical documentation. (Liberty SOF, ¶ 362.)
By letter dated February 18, 2017, Liberty notified Hocheiser’s counsel that Plaintiff’s
Second Appeal was denied, because he had failed to meet his burden of proving disability.
(Plaintiff SOF, ¶ 181) (citing Admin. Record at 143-63.) In denying Hocheiser’s appeal and
affirming its decision to terminate LTD benefits, Liberty considered Hocheiser’s entire claim file,
including medical records and documentation provided by Hocheiser’s treating providers; a
Functional Capacity Evaluation (“FCE”) and subsequent report issued by Ellen Rader Smith
(“Rader Smith”); and evidence related to Hocheiser’s business activities with Fields of Dreams,
LLC/Sportika. (Admin Record at 143-163.) Based upon its review, Liberty concluded that
although Hocheiser continues to experience back pain, stiffness, and other symptoms associated
with his condition beyond March 24, 2016, those symptoms are not of such “severity, frequency
and duration that they have resulted in restrictions or limitations rendering him unable to perform
the duties of the occupations identified as being within his functional capacity and vocational
skills, beyond March 24, 2016.” (Id. at 160-61.) In denying the Second Appeal, Liberty informed
Hocheiser that he had exhausted all administrative appeals. (Id. at 162.)
On June 26, 2017, Hocheiser filed the instant lawsuit in the Superior Court of New Jersey,
Law Division, Monmouth County, asserting the following causes of action against Liberty and
Defendants, Christina Eagen, Shannon Wright, Lindsay Mack, Nancy Winterer, and Barbara
Durling: breach of contract (Count I); bad faith (Count II); Willful, Wanton, and Malicious
Conduct (Count III); violation of ERISA (Count IV), and Unfair Claim Settlement Practices
(Count V). (ECF No. 1 at Ex. A.) On August 14, 2017, Liberty filed a Notice of Removal based

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on federal question jurisdiction, pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction. (ECF
No. 1.)
On March 23, 2018, the Court granted a motion to dismiss filed by Liberty and the
individual defendants pursuant to Fed R. Civ. P. 12(b)(6). (ECF Nos. 25 and 26.) Specifically,
the Court dismissed Plaintiff’s common law claims, asserted in Counts One, Two, Three, and Five
of the Complaint, with prejudice. The Court also dismissed Plaintiff’s claims under §§ 502(a)(2)
and 502(a)(3) of ERISA, asserted in Count Four of the Complaint, without prejudice. (ECF No.
26.) Plaintiff was given leave to amend his Complaint for the sole purpose of asserting a claim
under § 502(a)(1)(B) of ERISA. (Id.)
On April 18, 2018, Plaintiff filed an Amended Complaint, asserting the following causes
of action against Liberty and the individual defendants: breach of fiduciary duty (Count I),
violation of § 502(a)(1)(B) under ERISA (Count II), and punitive damages (Count III). (ECF No.
27.) On January 11, 2019, the Court granted a partial motion to dismiss filed by Liberty and the
individual defendants, in which the Court dismissed Count I and Count III of the Amended
Complaint and dismissed Count II of the Amended Complaint as asserted against the individual
defendants. (ECF No. 47.)
On July 9, 2020, Plaintiff and Liberty filed the instant Cross Motions for Summary
Judgment in which Hocheiser moves for summary judgment seeking to reverse the termination of
his benefits, and Liberty cross-moves for summary judgment. (ECF Nos. 77 and 78.)
II.

LEGAL STANDARD
A.

Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable [factfinder] could find for the non-moving party,” and it is material
only if it has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty.
of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment,
a district court may not make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the
burden of persuasion at trial, that party must support its motion with credible evidence ... that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party's claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party's claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate

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specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475
U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). There can be “no
genuine issue as to any material fact,” however, if a party fails “to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
B.

ERISA Standard

The Supreme Court has long held that a denial of benefits under ERISA is to be reviewed
“under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire
and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When a plan administrator has discretion to
determine a claimant’s eligibility for benefits, the plan administrator’s decision is subject to review
under an arbitrary and capricious standard. Miller v. American Airlines, Inc., 632 F.3d 837, 844
(3d Cir. 2011); Doroshow v. Hartford Life and Acc. Ins. Co., 574 F.3d 230, 233 (3d Cir. 2009).
Here, however, Plaintiff argues that the Magistrate Judge, in the context of a discovery
ruling, erred in ruling that the arbitrary and capricious standard applies. 1

1

Plaintiff argues that

The Court notes that since the Magistrate Judge’s determination was made in the context
of discovery, that this determination does not bind my analysis here. Thus, I will make an
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although the Magistrate Judge previously determined that the LTD Policy contains language that
would ordinarily trigger Liberty’s discretionary authority, that prior ruling was incorrect because
a later version of the LTD Policy applies to Plaintiff’s termination of LTD benefits, and the grant
of discretionary authority in that version of the LTD Policy is invalidated by Minnesota state law. 2
(Pl. Moving Br. at 13.) Specifically, Plaintiff contends that although he became disabled in 2013,
Liberty’s decision to terminate his benefits occurred on May 23, 2016, and its final determination
was made on February 18, 2017. (Id. at 13-14.) And, Plaintiff maintains that under Third Circuit
law, the benefit plan in effect on the date the administrator makes a benefits determination governs
the administrator’s discretionary authority. (Id.) (citing Smathers v. Multi–Tool, Inc., 298 F.3d
191, 194 (3d Cir. 2002)). According to Plaintiff, Liberty voluntarily and unilaterally amended the
LTD Policy on January 1, 2016, changing the terms of the policy for Wells Fargo employees. (Id.
at 14.) As a result, Hocheiser claims that Liberty effectively “offer[ed] or issu[ed]” a new policy
as of that date, which thereby subjected it to M.S.A. § 60A.42, which bans discretionary clauses
that apply to policies offered or issued on or after January 1, 2016. (Id. at 14-15) (citing Pierzynski
v. Liberty Life Assur. Co. of Bos., 2012 WL 3248238, at *3 (E.D. Mich. Aug. 8, 2012); Dallenbach
v. Standard Ins. Co., 2019 WL 2425705, at *3 (interpreting application of Minnesota ban on
discretionary clauses)).

Therefore, Plaintiff argues that M.S.A. § 60A.42 invalidates the

discretionary authority in the LTD Policy and reverts the standard of review to de novo. (Id. at
16.)

independent finding regarding the appropriate standard of review on these Motions for Summary
Judgment.
2
The LTD Policy provides that it is “delivered in and governed by” the laws of the State of
Minnesota. (Admin. Record at 3920.)
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I find that the arbitrary and capricious standard governs the review of the Administrator’s
decisions. Plaintiff argues that M.S.A. § 60A.42 applies because Liberty ceased paying disability
benefits in May 2016, after the statute’s effective date. (Pl. Moving Br. at 13.) In support of his
position, Plaintiff relies on Smathers v. Multi-Tool, Inc., 298 F.3d 191 (3d Cir. 2002), for the
proposition that “it is the benefit plan in effect on the date the administrator makes a benefits
determination that controls in determining whether the benefit plan gives the administrator or
fiduciary discretionary authority.” (Id. at 13-14.) In Smathers, however, the Third Circuit held
that the plaintiff had no vested right to benefits under the policy and, therefore, the plan sponsor
had a right to amend the policy at any time. 298 F.3d at 196. That is not the case here. As Liberty
aptly notes, the case that Smathers relied on makes clear that “the controlling policy is the one in
effect either 1) when the employee has vested rights in benefits or 2) if the employee has no vested
rights under the policy, when an ERISA cause of action accrues at the time that benefits are
denied.” Dallenbach v. Std. Ins. Co., 2019 WL 2425705 (D. Nev. Apr. 8, 2019) (citing GroszSalomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1159-61 (9th Cir. 2001). Here, the LTD
Policy was amended four times: once on May 7, 2010 (Admin. Record at 3963); twice on
December 22, 2010 (Admin. Record at 3965-3966); and once on September 14, 2016 (Admin.
Record at 3967). Each of those amendments unambiguously states that “[t]he changes will only
apply to Disabilities or Partial Disabilities which start on or after the effective date of this change.”
(Admin. Record at 3963; 3965-3967) (emphasis added.) 3 Thus, because the amendments to the
LTD Policy only applied to disabilities that arose after the effective dates of those amendments,
claimants, like Plaintiff, were vested with rights to benefits under the LTD Policy in effect as of

3

Notably, Plaintiff does not dispute the language of the amendments, nor does he argue that
the language is ambiguous.
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the date of disability. See Shane v. Albertson’s Inc., 504 F.3d 1166, 1169 (9th Cir. 2007) (finding
that when a policy has clear language that a claim is to be “provided for under the terms of the
Plan in effect at the time [a] disabilit[y] commenced,” the employee has a vested right in benefits
beginning at the time of the alleged disability). The LTD Policy, as amended in December 2010,
applies to Plaintiff’s LTD benefits, and this policy was in effect well before M.S.A. § 60A.42
became effective. 4
The arbitrary and capricious standard is a deferential one. An administrator’s decision is
arbitrary and capricious only “if it is without reason, unsupported by substantial evidence or
erroneous as a matter of law.” Miller, 632 F.3d at 845 (quotations and citations omitted).
“Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Soubik v. Dir. Office of Workers’ Comp. Programs, 366 F.3d
226, 233 (3d Cir. 2004). To decide whether an administrator’s termination of benefits is arbitrary
and capricious, courts “‘determine lawfulness by taking account of several different, often case-

4

By letter dated February 15, 2021, Plaintiff submitted a February 5, 2021 decision from
the United States District Court for the District of Minnesota in Kaminski v. UNUM Life Ins. Co.
of Am., No. 19-1997, 2021 WL 411438 (D. Minn. Feb. 5, 2021). Plaintiff requested that the Court
review the decision as supplemental authority in further support of his argument that the Court
should apply a de novo standard of review to the Administrator’s decision to deny him LTD
benefits. Plaintiff argues that this case is persuasive because the court found that a May 1, 2016
amendment to a disability policy subjects the policy to M.S.A. § 60A.42, and thereby voids the
policy’s discretionary clause. I find this case distinguishable. Unlike the ERISA policy here, the
policy in Kaminski did not contain vesting language, i.e., that the amendments to the LTD Policy
only applied to disabilities that arose after the effective dates of those amendments. Rather, the
amendment to the policy in Kaminski simply stated, “[t]he entire policy is replaced by the policy
attached to this amendment.” Kaminski, No. 19-1997, 2021 WL 411438, at *22 (D. Minn. Feb. 5,
2021). In that regard, because the amendment did not identify any new provisions or specific,
discrete changes to the prior policy, the court found that the “wholesale replacement” of the policy
constituted a renewal, which, in turn, subjected the policy to the prohibitions mandated by M.S.A.
§ 60A.42. Id. at 25-26. That is clearly not the case, here.
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specific, factors, reaching a result by weighing all together.’” Miller, 632 F.3d at 855 (quoting
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008)).
Among the factors that the Third Circuit has found important in determining whether a
denial of benefits under ERISA is arbitrary and capricious are whether: (1) the administrator
considered all medical diagnoses of the claimant; (2) the administrator considered the claimant's
ability to perform his or her job requirements under the relevant diagnoses; (3) benefits
determinations were reversed without additional evidence; (4) there was a disregard of opinions
previously relied on; (5) the selection of evidence or medical reviews was self-serving; (6) the
administrator without justification relied on the opinions of non-treating physicians more than the
opinions of treating physicians; (7) the administrator relied on inadequate evidence; and (8) the
administrator failed to comply with Section 504 of ERISA. See Miller, 632 F.3d at 848-55. Any
one factor could act as a tiebreaker when the other factors are closely balanced. The greater “the
tiebreaking factor's inherent or case-specific importance[,]” the less closely the other factors must
be balanced for that tiebreaking factor to be decisive. Glenn, 554 U.S. at 116. The relative weight
of these factors is determined by the circumstances of each case. Id. at 115; Estate of Schwing v.
The Lilly Health Plan, 562 F.3d 522, 526 (3d Cir. 2009).
Under the arbitrary and capricious standard of review, courts must limit their review of the
plan administrator’s denial of benefits to only the evidence that was before the administrator when
the decision was made. See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997),
abrogated on other grounds as recognized by Miller v. Am. Airlines, Inc., 632 F.3d 837, 847 (3d
Cir. 2011) (finding that under an arbitrary and capricious standard of review, the court looks to the
record as a whole, and that “whole” record consists of evidence that was before administrator when
the decision being reviewed was made). However, this limitation refers to the merits of the

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administrator’s decision.

This general restriction does not prohibit a district court from

considering extra-record materials related to an administrator’s conflict of interest or any
procedural irregularities that occurred during the reviewing process. See Otto v. W. Pa. Teamsters
and Employers Pension Fund, 127 Fed. Appx. 17, 21 n. 7 (3d Cir. 2005) (stating “[e]vidence
beyond the administrative record may in certain circumstances be relevant and admissible as to
issues ... such as trustee conflict of interest, bias, or a pattern of inconsistent benefit decisions”);
O’Malley v. Sun Life Ins. Co. of Am., 2006 WL 182099, at *7 (D.N.J. Jan. 23, 2006) (stating “this
Court may consider evidence [beyond the administrative record] of a pattern of inconsistent benefit
decisions by Defendant ...”).
Indeed, a modified arbitrary and capricious standard is proper “if a benefit plan gives
discretion to an administrator or fiduciary who is operating under a conflict of interest.” Meyers
v. GE Grp. Life Assur. Co., No. 04-5488, 2006 WL 680993, at *8 (D.N.J. Mar. 10, 2006) (quoting
Firestone Tire & Rubber Co., 489 U.S. at 115).
Here, Liberty is responsible for funding the LTD Policy. See Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 117 (2008) (finding a conflict of interest where the entity responsible for determining
benefits eligibility also pays the benefits). Thus, where a structural conflict of interest exists, “the
governing standard requires the plaintiff to show that the denial of benefits was arbitrary and
capricious, with a conflict of interest as simply one factor for the court's consideration.” Dunn v.
Reed Grp., Inc., No. 08-1632, 2009 WL 2848662, at *9 (D.N.J. Sept. 2, 2009). While the Court
may consider the conflict of interest as one of several factors in its analysis, see Estate of Schwing
v. The Lilly Health Plan, 562 F.3d 522, 526 (3d Cir. 2009), Plaintiff does not argue, nor is there
any evidence, of conflict in this case. Rather, Liberty adopted a number of safeguards to alleviate
concerns regarding structural conflicts, including different claim examiners at each stage of the

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review process and multiple consulting medical professionals that were selected by outside
medical vendors. Plaintiff makes no suggestions that these safeguards are not sufficient to alleviate
the structural conflict of interest. Accordingly, courts in the Third Circuit have generally applied
little weight to alleged structural conflicts where such safeguards are apparent. See, e.g., Irgon v.
Lincoln Nat’l Corp., 2014 WL 12718984, at *8 (D.N.J. Oct. 23, 2014) (conflict is not important
factor when administrator demonstrated existence of safeguards).
III.

DISCUSSION
Hocheiser argues that the termination of his benefits was arbitrary and capricious, because

(1) the FCE findings are supported by the objective evidence in the record; (2) Liberty’s
surveillance investigations do not support its termination of benefits; (3) Liberty failed to conduct
an Independent Medical Evaluation (“IME”); and (4) Liberty has not proven that Hocheiser can
perform another qualifying occupation. In response, and in support of its motion for summary
judgment, Liberty argues that its determination that Plaintiff failed to meet his burden of proving
his disability was reasonable and supported by the medical evidence.
A.

The FCE Findings 5

Hocheiser argues that the FCE report authored by Rader Smith provides the only thirdparty, in-person assessment of Plaintiff’s physical restrictions and limitation, and it was not
sufficiently considered by Liberty in evaluating Plaintiff’s LTD benefits claim. (Pl. Moving Br.
at 17.) According to Plaintiff, Rader Smith directly assessed his cervical, lumbar, shoulder, elbow,
forearm, wrist, and hand range of motion; his muscle strength; his hand function and clerical skills;
his sitting and standing tolerances; and his ability to lift and carry for approximately three hours

5

Since I have extensively recited the record in the Factual Background section of this
Opinion and provided record citations, I will not re-cite the record in this Discussion section. I
will only cite to the record where necessary.
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and forty-five minutes. (Id. at 18.) Based on his performance during these tests, Hocheiser
maintains that Rader Smith concluded that he cannot sustain any level of consistent functionality
in a normal work environment. (Id.) Despite the FCE report being “the single most important
document in the record,” Plaintiff argues that Liberty failed to sufficiently address the report and,
instead, adopted a different report completed by a non-examining physician. Moreover, to the
extent Liberty had certain requirements or qualifications for a valid FCE, Liberty did not
communicate those requirements to Hocheiser. (Id. at 22.)
In response, Liberty maintains that the FCE was not sufficient proof of Hocheiser’s
disability. (Liberty Opp. Br. at 6.) According to Liberty, unless the FCE contains “robust validity
testing,” which Liberty claims the one conducted by Rader Smith does not, the claimant can
“completely dictate the results by deciding how much effort to put forth” during testing. (Id. at 67.)
Here, Plaintiff asks the Court to essentially find that the Administrator should have
disregarded years of medical evidence, including documentation and clinical assessments from
reviewing board certified physicians, in favor of the FCE report. I am not so inclined. At the
outset, Liberty’s denial of Plaintiff’s Second Appeal adequately addressed the FCE. Indeed,
Liberty acknowledged that it considered the FCE as part of Plaintiff’s administrative appeal, and
accurately recited that the FCE “concluded that Mr. Hocheiser is able to perform isolated tasks at
the sedentary, light, and medium physical demand levels, although he is unable to sustain work at
any physical demand level, including sedentary.” (Admin. Record at 154.) Dr. Kaplan indicated
that despite this conclusion, however, the FCE was not particularly reliable. (Id. at 157.) As
explained by Liberty, unless the FCE contains robust validity testing, the claimant can influence
the results based on the amount of effort he puts forth during the evaluation. See, e.g., Gorbacheva

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v. Abbott Labs. Ext. Disability Plan, 309 F. Supp. 3d 756, 771 (N.D. Cal. 2018), aff’d, 794 F.
App’x 590 (9th Cir. 2019) (affirming administrator’s decision to give FCE little weight on the
basis that validity testing was insufficient to determine whether plaintiff was putting forth full
effort); see also Ness v. Aetna Life Ins. Co., 257 F. Supp. 3d 1280, 1285 (M.D. Fla. 2017) (holding
that FCE was entitled to weight when it included “49 validity criteria”). In denying Plaintiff’s
LTD benefits claim, Dr. Kaplan reasoned that the only objective measure included in Plaintiff’s
FCE was grip strength testing, during which Hocheiser appeared to have exhibited full effort.
(Admin. Record at 157.) Hocheiser’s effort during the remainder of the testing, however, was
limited by his subjective complaints, and therefore, any findings would represent the “minimum,
rather than maximal capacity.” (Id.)
Moreover, to the extent that Plaintiff argues the FCE is entitled to significant weight simply
because its findings were consistent with those of his treating providers, that position is also
unsupported by the record. As discussed in more detail, infra, findings of restricted range of
motion and stiffness do not represent the entire calculus when determining whether a claimant is
entitled to LTD benefits. Rather, it is critical whether those symptoms, along with Plaintiff’s other
reported symptoms, constitute sufficient proof of disability, such that Liberty could determine that
Plaintiff can no longer perform his Own Occupation. Accordingly, Liberty’s decision to afford
less weight to the FCE report was not arbitrary and capricious.
B.

Liberty’s Surveillance Investigations

Hocheiser further argues that the results of Liberty’s surveillance, and its investigation into
Fields of Dreams, LLC/Sportika, do not support its decision to terminate his LTD benefits. (Pl.
Moving Br. at 23.) Specifically, Hocheiser asserts that over the course of his claim, Liberty
attempted to surveil him on at least nineteen different days, including surveillance of Sportika and

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at Plaintiff’s neurologist’s office. (Id.) However, despite this surveillance, Hocheiser maintains
that Liberty only captured him on video for approximately five total minutes, and more
importantly, none of the activities observed by Liberty disprove the FCE findings or the reports of
disability provided by Hocheiser’s treating physicians. (Id. at 23-24.) With respect to his work
with Sportika, Hocheiser argues that simply because he was capable of posting to Facebook,
promoting Sportika online, and attending Planning Board meetings, does not mean he could
perform “at anything close to a full-time work capacity.” (Id. at 26.)
Liberty counters Hocheiser’s position, arguing that its surveillance and investigative
findings revealed that Plaintiff “essentially started a new career after ‘retiring’ from his mortgage
job due to back pain.” According to Liberty, this evidence clearly supports its decision that Plaintiff
failed to provide proof of disability, and that Plaintiff could perform, at least, sedentary work.
Because I find the surveillance and other investigatory evidence considered by Liberty to
be consistent with Liberty’s determination that Hocheiser is not disabled under the terms and
definitions of the LTD Policy, I agree with Liberty. As articulated correctly by Liberty, making a
disability determination requires assessment of many pieces of medical, vocational, and financial
information. Thus, surveillance observations, social media evidence, and public records are
investigatory tools that can provide objective evidence of the claimant’s functionality and overall
severity of disability. These tools assist claims administrators in their job to assess the weight to
apply a claimant’s subjective complaints, particularly to the extent the investigation reveals
information that conflicts with the claimant’s statements. See, e.g., Menes v. Chubb & Son, 101
F. Supp. 3d 427, 434 (D.N.J. 2015) (affirming administrator’s decision when surveillance
contradicted plaintiff’s self-reported limitations); Digiacomo v. Prudential Ins. Co. of Am., 501 F.
Supp. 2d 626, 633 (D.N.J. 2007) (same); Palma v. Harleysville Life Ins. Co., 2013 WL 6840512,

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at *10 (D.N.J. Dec. 23, 2013) (finding that “the video surveillance directly contradicts not only
[the plaintiff’s] subjective reports of her symptoms, but also those of her own treating
physicians.”).
Here, I find that the observations collected during Liberty’s surveillance of Hocheiser, in
addition to the documentary evidence obtained through public records and internet searches,
support the conclusions of Liberty’s reviewing physicians who examined Plaintiff’s extensive
claim file. When Hocheiser filed his disability claim with Liberty, he reported that he was unable
to work due to pain and stiffness in his neck and back. (Liberty SOF, ¶ 36.) He told Liberty that
his impairment was “related to a genetic disorder, [acromicric] dysplasia,” that he lays down most
of the day, and generally, does “a lot of nothing.” Indeed, Hocheiser told Liberty that he would
“never . . . work again.” (Liberty SOF, ¶ 63.) When asked about his activities and current work,
however, Hocheiser only disclosed that he “has an eBay business selling sports cards but loses
money.” Hocheiser did not disclose his involvement in the development of Sportika— a 170,000
square feet facility that markets itself as one of the largest sports-complex in the tri-state area.
(Admin. Record at 310.) In fact, Hocheiser did not disclose his work in connection with Fields of
Dreams, LLC/Sportika, which, according to business records was formed in November 2013 by
Hocheiser and a business partner, until he submitted his Activities Questionnaire to Liberty on
January 2, 2015.
From November 2013 to January 2015—a period when Hocheiser was purportedly unable
to work as a Mortgage Consultant for Wells Fargo—Liberty’s investigation revealed that Plaintiff
worked extensively to develop Sportika. Hocheiser and his business partner formed Fields of
Dreams, LLC in November 2013, developed a business strategy for the project that outlined their
vision of providing the largest, all-encompassing sports and entertainment complex in the Tri-State

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area, and acquired twenty-two acres of vacant land in Manalapan Township to serve as the site of
Sportika. Indeed, as part of the site’s development, Hocheiser attended three public meetings
before the Manalapan Township Planning Board on June 12, 2014; June 26, 2014; and July 24,
2014, related to Sportika’s site plan application and other land use approvals. (Liberty SOF, at ¶¶
106, 107, 109.) Video recordings of the meetings obtained by Liberty show that Hocheiser
attended the meetings, each of which lasted between three hours and nearly five hours, sat in the
front row behind counsel’s table for the duration of the meetings, and generally exhibited no
frequent change in position or other pain or discomfort while sitting.
Moreover, Liberty’s investigation revealed that Hocheiser and his business partner opened
a temporary location, which they deemed “Mini-Sportika” in Howell, New Jersey in 2014, to prove
that their model was sustainable. (Admin. Record at 301-09.) Thereafter, they began assembling
“a team of experts with experience in managing sports programs,” including the acquisition of a
successful baseball academy, soccer academy, and softball academy. (Id.) The partners then
worked with a local architect and engineer to design and build the complex, while also attracting
private investors. 6 (Id.) Finally, a news article discussing Sportika suggests that Hocheiser views
Sportika as a long-term endeavor, as evidenced by his statement that, “Sportika New Jersey is only
the tip of the proverbial iceberg.” (Id. at 309.)
Accordingly, I find that the surveillance and investigatory evidence procured by Liberty
supports its decision that Plaintiff failed to provide proof of disability as of May 2016.

6

Indeed, Hocheiser secured an $11.55 million loan from AVANA Capital, and he was the
only Field of Dreams, LLC/Sportika representative quoted in a corresponding press release.
(Liberty SOF, ¶ 316).
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C.

Liberty’s Failure to Perform an Independent Medical Evaluation

Hocheiser argues that the fact that Liberty eschewed an IME, despite the recommendation
of its own reviewing physicians, for paper reviews, weighs in favor of finding arbitrariness. (Pl.
Moving Br. at 26-27.)

According to Hocheiser, “an ERISA plan administrator behaves

unreasonably by ignoring the recommendations of its consulting physicians to pursue further
evidence.” (Id. at 28) (citing Simon v. Prudential Ins. Co. of Am., 2011 WL 2971203, at *5 (D.
N.J. July 20, 2011). Moreover, Hocheiser claims that Liberty’s decision not to pursue an IME is
especially troublesome because his claim was largely based on subjective complaints of pain. (Id.
at 30) (citing Patterson v. Aetna Life Ins. Co., 2017 WL 4786562, at *10–11 (D.N.J. Oct. 23,
2017), aff’d, 763 F. App’x 268 (3d Cir. 2019).
In response, Liberty acknowledges that although its physicians initially believed an IME
might be helpful, the LTD Policy did not require one. (Liberty Opp. Br. at 19.) Moreover, Liberty
argues that an IME was not ultimately necessary because its review of Plaintiff’s medical records,
coupled with its own investigation of Plaintiff’s claims, demonstrated that Liberty had sufficient
information to assess Plaintiff’s credibility, such that an in-person examination was not necessary.
(Id. at 26.) Put simply, Liberty maintains that Plaintiff had the burden to provide satisfactory proof
of disability and Liberty had no duty to disprove his claim. (Id. at 19.)
It is well-settled that an administrator’s decision to forego an IME and rely solely on paper
reviews is not per se arbitrary, however, it is a factor to consider in a court’s overall assessment of
the reasonableness of the administrator’s decision-making process. Kelly v. Reliance Standard
Life Ins. Co., 2011 WL 6756932, at *6 (D.N.J. Dec. 22, 2011); Osborne v. Aetna, 2013 WL
3168657, at *7 (D.N.J. Jun. 20, 2013); Lamanna v. Special Agents Mut. Benefits Ass’n, 546 F.

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Supp. 2d 261, 296 (W.D. Pa. 2008); Schwarzwaelder v. Merril Lynch & Company, Inc., 606 F.
Supp. 2d 546, 559-60 (W.D. Pa. 2009).
As a preliminary matter, although Plaintiff does not raise this as an issue in his Motion for
Summary Judgment, I do not find any procedural irregularities with respect to Liberty’s decision
to deny Hocheiser’s LTD benefits claim after it initially granted those benefits. Indeed, in
accordance with the LTD Policy, Liberty had the right and opportunity to examine or evaluate
Plaintiff at “reasonable intervals” whenever such examination or evaluation was “deemed
necessary by Liberty.” (Admin. Record at 3956) (emphasis added.) Moreover, the LTD Policy
provides, in relevant part, that with respect to the discontinuation of LTD benefits, the benefit will
cease when a covered individual either “fails to provide Proof of continued Disability or Partial
Disability and Regular Attendance of a Physician” or “fails to cooperate in the administration of
the claim,” such as not providing information or documents needed to determine whether benefits
are payable. (Admin. Record. at 3949.)
In December 2014, Liberty approved Plaintiff’s LTD benefits claim based primarily on the
report issued by Dr. Alpers. In his report, Dr. Alpers found that his review of Plaintiff’s medical
records revealed that Hocheiser was “effectively incapable of working from September 24, 2013
forward.” (Admin. Record at 3151.) In reaching this conclusion, Dr. Alpers reasoned as follows:
[Hocheiser’s] clinical syndrome is characterized by dysmorphic
features, muscle hypertrophy, pathological hyperreflexia, spasticity,
mild weakness, and severe neck and low back pain. There appears
to be a genetic basis for these findings on the basis of similar features
in his children though the exact diagnosis remains to be established.
Regardless, his clinical syndrome has resulted in a considerable
amount of functional impairment, primarily relating to refractory
and severe neck and low back pain.
(Id.) (emphasis added.) Dr. Alpers further recommended that because an exact diagnosis based on
genetic testing remained unclear and a search for that diagnosis was ongoing, that Liberty review
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Plaintiff’s case again in two years. Thus, while Liberty approved Plaintiff’s LTD benefits claim
at that time, the Court does not find any procedural irregularity simply because Liberty continued
to request medical documentation from Plaintiff and his treating providers regarding his
underlying symptoms and the presence of a potential genetic disorder. Indeed, the LTD Policy
provided for such further investigation, particularly since Liberty’s claim approval decision was
based on Dr. Alpers’s report, which recommended follow-up reviews. Moreover, it is not disputed
that Plaintiff affirmatively inquired about Liberty’s partial disability policy just days after Liberty
approved his claim—a conversation which alerted Liberty that Plaintiff might be capable of
working in some capacity. Accordingly, given the clear and unambiguous language of the LTD
Policy and the basis for Liberty’s approval of Hocheiser’s claim, Liberty’s decision to request
additional medical documentation from Plaintiff’s treating providers and perform further
investigation into Plaintiff’s disability claim was reasonable.
Moreover, I find that the evidence in the record supports Liberty’s decision to overturn its
prior approval of Plaintiff’s LTD benefits claim, and deny Plaintiff’s Second Appeal, without an
IME. First, as discussed above, Liberty’s decision to approve Plaintiff’s LTD benefits claim was
largely based on Dr. Alpers’s report, as well as similar medical evidence in Plaintiff’s file at the
time, which contemplated that Plaintiff might suffer from a genetic disorder. Liberty’s subsequent
investigation, however, revealed that there was no genetic component to Plaintiff’s subjective
complaints of pain and stiffness.
First, the record indicates that Dr. Frisso Potts, a neurologist, performed a neurological
review of Plaintiff’s file at Liberty’s request.

In addition to reviewing Plaintiff’s medical

documentation, Dr. Potts also spoke with two of Plaintiff’s providers, including Dr. Hirano. With
respect to Plaintiff’s claims of a genetic disorder, Dr. Hirano informed Dr. Potts that he was

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“uncertain whether Mr. Hocheiser has a genetic disorder” and that “no objective neuromuscular
abnormalities [existed] that would prevent [Plaintiff] from conducting light work; however, he
claims pain and stiffness prevents him from working.” (Admin. Record at 2759-60.) As such, Dr.
Potts concluded that Hocheiser “does not appear to have a hereditary neurological disorder that
would account for his clinical state” and suggested that “review by a neurogeneticist may be
considered.” (Id. at 2761.) Indeed, Dr. Potts explained that Hocheiser had undergone extensive
genetic testing for a variety of potential hereditary diseases, all of which were normal. (Id. 276263.) She further explained:
The hereditable conditions mentioned all have distinct physical
features (phenotype) such as short stature, short limbs, facial
dysmorphism, etc. . . . The claimant has none of these features. He
has said that his children have these features and that is how the
diagnosis was made in them [note that he does not report or offer
evidence of genetic testing for his children]. There is no evidence
the claimant has an inherited disorder on phenotypic or genotypic
grounds.
(Id. at 2762-63.)
In accordance with Dr. Potts’s recommendation, Liberty requested that Dr. Garry Cutting,
a Johns Hopkins professor and genetics specialist, review Plaintiff’s file and answer specific
questions about Hocheiser’s genetic condition and functionality. 7 (Id. at 1687, 1720.) Dr. Cutting
concluded that it is unlikely that Hocheiser has acromicric dysplasia, geleophysic dysplasia, or a
genetic form of muscular dystrophy. (Id. at 1191-1192.) Specifically, Dr. Cutting reasoned that
while some features suggestive of acromicric dysplasia were reported in Hocheiser’s daughter
when she was younger, evaluation of Plaintiff by Dr. Julie Hoover-Fong at Johns Hopkins, who is

7

Dr. Cutting, who graduated from medical school in 1983, was the director of Johns
Hopkins’s postdoctoral treating programs in medical genetics and its DNA diagnostic laboratory.
(Id. at 1720.)
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an expert in skeletal dysplasias, did not reveal any features consistent with a diagnosis of
acromicric dysplasia apart from the finding of muscle hypertrophy and a hoarse voice. (Id. at
1604-05.) Indeed, Dr. Cutting determined that with the exception of muscle hypertrophy and
stiffness, there were no specific findings in Plaintiff indicative of acromicric dysplasia or
geleophysic dysplasia upon exam by Dr. Hoover-Fong.

(Id.)

Notably, Dr. Cutting also

emphasized that even if it could be shown that Hocheiser suffered from one of these genetic
disorders, its presence would not per se imply functional impairment such that he could not work.
(Id.)
Moreover, treatment notes from Hocheiser’s own providers and diagnostic testing
performed after Liberty’s initial approval of LTD benefits provided no evidence of a genetic
disorder or objective diagnosis. Indeed, as Dr. Cutting discussed in his report, Hocheiser visited
Dr. Hoover-Fong at Johns Hopkins on June 15, 2015, for a genetics consultation. (Id. at 2236.)
Despite Plaintiff’s reports of muscle stiffness and pain, Dr. Hoover-Fong noted that “extensive
testing” to date was negative. (Id. at 2237.) To that end, she recommended that Plaintiff undergo
whole exome sequencing and an echocardiogram. (Id. at 2239.) On March 14, 2016, a Johns
Hopkins representative verbally notified Liberty that the exome sequencing results came back
“non-diagnostic,” meaning they did not demonstrate the presence of a genetic disorder. 8 (Id. at
20.) Therefore, while Hocheiser continued to claim during his Second Appeal that he suffers from
a genetic disorder, no conclusive genetic disorder has been identified by any objective or
diagnostic evidence.

8

Liberty was unable to obtain the complete genetic testing results because Hocheiser failed
to complete the required Johns Hopkins’s authorization form. (Admin. Record at 15)
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Moreover, independent from this new evidence regarding Plaintiff’s lack of a genetic
disorder, additional medical documentation, subsequent conversations with Plaintiff’s treating
providers, and new insights into Plaintiff’s involvement with Fields of Dreams, LLC/Sportika,
demonstrated that changed circumstances existed to terminate Plaintiff’s LTD benefits. Indeed,
over the course of his claim, Hocheiser treated with at least sixteen providers. The record reveals,
however, that eight of those providers declined to offer an opinion on Plaintiff’s functionality; two
providers provided early support for his claim, but did not offer any opinion beyond 2014; and
four providers eventually indicated to Liberty that Plaintiff could perform work, at least in a
sedentary capacity. (Liberty SOF, at ¶ 385.)
Accordingly, the only two providers to support Plaintiff’s claim for disability throughout
the entirety of the claims process were Drs. Herman and Leitch. Dr. Herman began treating
Plaintiff in 2014, and regularly treated Plaintiff in 2015. At that time, he initially told Liberty that
Plaintiff could perform sedentary work on a full-time basis from home. (Liberty SOF, at ¶¶ 204,
245.) Indeed, Dr. Herman advised that if Hocheiser were to request a full-time work release, for
return to his sedentary occupation as Mortgage Consultant, he would not hesitate to release him
back to work. (Admin. Record at 1771.) While Plaintiff stopped treating with Dr. Herman in May
2015, he treated with him once in July 2016. Following the July 2016 visit, Dr. Herman reported
that over the past fourteen months, Hocheiser had experienced increased pain, muscle tightness
and spasms. (Admin. Record at 829.) Therefore, Dr. Herman acknowledged that while in the past,
he found that Hocheiser could work from home with frequent breaks to allow for stretching and
mobilization, he no longer believed that to be a viable option, in light of Hocheiser’s “progressive
physical deterioration.” (Id.) Notably, however, Dr. Herman’s opinions in both 2014 and 2015,
do not appear to be based on any functional testing, analysis, or objective evaluation. Rather, his

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findings appear to be based on Hocheiser’s subjective complaints of pain and stiffness. In fact,
the medical documentation shows that during Dr. Herman’s examinations of Plaintiff, Hocheiser’s
gait, stride, cadence, and balance were normal, and he also generally displayed normal strength,
tone, and sensation. (Admin. Record at 2830, 2594, 2596).
As for Dr. Leitch, her findings also appear to lack objective evidence. Plaintiff first
consulted with her in December 2013, at which time she reported that based on Plaintiff’s muscle
stiffness and neck and back pain, he could not work. Specifically, Dr. Leitch reported that she was
unsure how long Hocheiser could not work, but that he should “remain off of work while [she]
continue[s] to investigate what might be the cause of his symptoms.” (Admin. Record at 2061.)
Similarly, in connection with his First Appeal, Plaintiff provided a letter from Dr. Leitch stating
that Hocheiser “continues to suffer with severe muscle spasms, headaches as well as neck and back
pain,” however, “[h]is exact diagnosis is not yet known.” (Admin. Record at 3200.) According
to Dr. Leitch, “these symptoms are causing him significant functional disability.” (Id.) Later, in
connection with Plaintiff’s Second Appeal, Dr. Leitch also provided Liberty with a Restrictions
Form, in which she indicated that Plaintiff was “[f]ully disabled,” because he could not do “any
lifting” or “stand or sit for regulated amounts of time.” According to Dr. Leitch, Hocheiser was
“in physical therapy but he suffers from a genetic, progressive degenerative condition. 9 His
symptoms will not improve.”
There is no doubt that Hocheiser reported subjective pain. The difficulty, as explained by
each of Liberty’s reviewing doctors, is that there is no objective evidence to prove the effect of
Hocheiser’s complaints of pain on his ability to work. See Dolfi v. Disability Reins. Mgmt. Servs.,

9

Notably, no diagnostic or objective medical evidence exists in the record demonstrating
that Plaintiff suffers from a genetic disorder. In fact, all testing and genetic evaluations revealed
no such diagnosis.
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Inc., 584 F.Supp.2d 709, 735 (M.D. Pa. 2008) (medical consultants’ findings that the plaintiff’s
subjective complaints of pain are inconsistent with the objective evidence available is not arbitrary
and capricious). In other words, the inquiry is not whether Plaintiff experienced pain—which the
parties do not dispute—rather, the question is whether Plaintiff’s pain, at whatever level, had any
effect on his capacity to work.
On that issue, it was well supported that Hocheiser could work in a sedentary capacity with
certain restrictions, and therefore, Liberty’s decision to forego an IME was not arbitrary and
capricious. Indeed, when Liberty terminated Plaintiff’s LTD benefits in May 2016, it considered
medical records received from Hocheiser’s providers; letters and correspondence received from
Hocheiser and his attorney; surveillance, business records, and internet reports; and clinical
reviews and a transferrable skills analysis. (Admin. Record at 1183-97.)
As for the medical documentation, Liberty received records from twelve separate sources,
including: Drs. Leitch, Rizvi, Peter Lapman, Herman, Brokstein, Hirano, and Johnson; Johns
Hopkins Medicine’s Genetics Department, CVS Pharmacy, the Kennedy Krieger Institute’s
Muscle Disorder Clinic, and CentraState Healthcare’s Rehabilitation Department. (Id. at 118485.) In addition to this medical documentation, Liberty also reviewed all previously received
medical documentation received since commencement of Hocheiser’s initial claim. (Id.)
Given the complexity of Hocheiser’s condition, Liberty then conducted multiple clinical
reviews of Plaintiff’s file and medical records to understand his level of impairment and his
sustained functional capacity. In addition to the clinical reviews completed by Dr. Potts and Dr.
Cutting, discussed supra, Dr. Gale G. Brown, Jr., and Dr. Rajat Gupta also reviewed Plaintiff’s
claim file. When asked to discuss Plaintiff’s functionality, Dr. Brown concluded, like Dr. Potts,
that Plaintiff was capable of full-time sedentary work. (Id. at 2571-72.) In support of her

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conclusion, Dr. Brown emphasized that Plaintiff’s MRI results were mild, surgery was
unnecessary, and she also cited the surveillance observations obtained by Liberty, including
Plaintiff’s attendance at sports events and Sportika. 10 (Id. at 2571-85.) As for Dr. Rajat Gupta, a
Board Certified physician in neurology and pain medicine, he concluded that Hocheiser “is
impaired in his capacity to perform certain physical functions” due to his spinal pain.” (Id. at
1376.) As a result, Dr. Gupta outlined several restrictions for Hocheiser, including no lifting or
carrying more than ten pounds occasionally and up to five pounds frequently and no standing or
walking for more than two hours in an eight-hour day. (Id. at 1377.) With respect to sitting, Dr.
Gupta found that Hocheiser is without restrictions, but he should be allowed to change position
and stretch every thirty minutes. (Id.) Like Dr. Potts, Dr. Gupta also spoke with several of
Plaintiff’s treating providers, including Gramata and Drs. Julie Hoover-Fong and Leitch. Dr.
Hoover-Fang stated “[s]he did not appreciate any significant deficits to his physical functioning
during her evaluation, except for some increased muscle bulk and hypertonia” and “his complaints
are mainly that of subjective pain.” (Id. at 1385.) As for Dr. Leitch, she stated, contrary to her
Restrictions Form, that “[b]ecause of the mainly subjective nature of his complaints, . . . she was
not able to provide an opinion on his capacity to return to his prior position.” (Id. at 1383.) 11 In
sum, the clinical reviews performed by physicians trained and certified in the respective medical
disciplines, which considered conversations and correspondence with Hocheiser’s treating

10

Although with respect to Sportika, Dr. Brown acknowledged at the time that Plaintiff’s
level of involvement was uncertain. (Admin. Record at 2574.)
11
However, when Dr. Gupta sent Dr. Leitch a letter summarizing their conversation, she
responded that she could not “agree with the restrictions and limitations outlined by Dr. Gupta.”
(Admin. Record at 1363.) According to Dr. Leitch, “[Hocheiser] has told me on numerous
occasions that he has too much pain to work at his previous job.” (Id.) Dr. Leitch indicated that
Hocheiser is “very stiff with significant loss of normal range of motion at his neck, back, hips and
knees,” and that he has “significant pain with movement.” (Id.)
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providers, concluded that although Hocheiser suffers from functional impairment associated with
his cervical and lumbar spine diagnoses, as well as gait disorder and issues with his hips and right
shoulder, he is capable of performing full-time work at a sedentary physical demand level. (Id. at
1187-1189.)
This was also confirmed by Liberty’s review on Plaintiff’s Second Appeal. 12 Again,
Liberty considered Hocheiser’s entire claim file, including newly received medical records and
documentation provided by Hocheiser’s treating providers; the FCE and subsequent report issued
by Rader Smith; and new evidence related to Hocheiser’s business activities with Fields of
Dreams, LLC/Sportika. (Id. at 143-163.) Specifically, Dr. Mark Kaplan, a Board Certified
physician in Pain Management and Rehabilitation, Pain Medicine, and Spinal Cord Injury
Medicine, reviewed Plaintiff’s medical documentation. (Id. at 156-157.) Dr. Kaplan reported the
diagnoses supported by the medical evidence include “hypertension, obstructive sleep apnea,
anxiety, hyperlipidemia, obesity, right lower extremity deep vein thrombosis, and the claimant has
a chronic neuromuscular condition without established diagnosis.” (Id. at 157.) With respect to
the August 2016 and July 2015 brain, cervical, thoracic and lumbar MRIs, Dr. Kaplan explained,
“[t]he testing done showed degenerative changes of the spine which is of indeterminant
significance as these findings are commonly seen in asymptomatic individuals and would be more
likely to be associated with obesity as in this case. Imaging of the brain was normal. None of
these tests explains the claimant’s physical examination findings or reported symptoms.” (Id.) Dr.

Despite Hocheiser’s claims during his Second Appeal that his condition had “regressed,”
that assertion was not supported by the medical evidence. Notably, at Plaintiff’s most recent
physical examination on file, which occurred on July 9, 2016, Dr. Vinay Chaudhry, a neurologist,
reported that Hocheiser had limited range of motion, but normal muscle tone, steady gait, no clear
sensory loss or weakness, and no hypertrophy of a significant degree.
12

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Kaplan also discussed Hocheiser’s claim with Dr. Rizvi, Hocheiser’s primary care provider, who
agreed that Hocheiser would be able to perform work at a seated level. (Id. at 156-57.)
Moreover, as explained in greater detail above, Liberty’s surveillance and investigation
into Hocheiser’s daily activities following Liberty’s approval of his disability claim in December
2014, suggested that he was capable of working in some capacity. Indeed, when Liberty approved
Hocheiser’s claim in December 2014, it was unaware that Plaintiff had formed the limited liability
company in 2013, and he had been actively taking steps to develop Sportika. To be clear,
Hocheiser developed one of the largest indoor sports and entertainment complexes in the tri-state
area between 2014 and 2016—the exact period that he received his LTD benefits. Thus, while
Drs. Herman and Leitch may have opined that Hocheiser was disabled, on balance, there was
sufficient evidence, documented by other providers who treated Hocheiser, consulting physicians
who reviewed Hocheiser’s entire claim file, and by Liberty’s extensive investigatory efforts into
Hocheiser’s daily activities to find that Plaintiff, as of May 2016, was capable of sedentary work.
In sum, Liberty’s conclusion that Plaintiff failed to meet his burden as of May 2016 was
supported by: (1) the opinions of several of Plaintiff’s own treating providers, including Drs. Rizvi,
Hirano, Hoover-Fong, and Lapman; (2) the contemporaneous medical records, which consistently
lacked any diagnostic or objective explanation, aside from subjective symptoms of pain and
stiffness; (3) the absence of a “genetic disorder” (or any other similar diagnosis) causing Plaintiff’s
alleged disabling symptoms; (4) evidence regarding Plaintiff’s demonstrated functionality,
including surveillance observations related to his work in connection with Fields of
Dreams/Sportika; and (5) the opinions of five independent board certified doctors, all of whom
reviewed the totality of the medical information and documentation in Plaintiff’s claim file.
Taking this evidence as a whole, I do not find that, under the arbitrary and capricious standard, an

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IME was necessary. Because Plaintiff did not establish a prima facie case, it is not a procedural
irregularity nor arbitrary and capricious if a reviewer does not conduct an IME. Vega v. Cigna
Group Insurance, No. 06–5841, 2008 WL 205221, at *7 (D.N.J. Jan.23, 2008); Feigenbaum v.
Merrill Lynch & Co., Inc. Basic Long Term Disability Plan, No. 06–1075, 2007 WL 2248096, at
*4 n. 11 (D.N.J. Aug. 2, 2007); see Abnathya v. Hoffmann–La Roche, Inc., 2 F.3d 40, 47 (holding
that plan administrator was not specifically required to request an additional examination unless
the employee first submits proof of continuing disability). It is not Liberty’s burden to determine
the existence of Plaintiff’s disability; it is sufficient that Liberty determine, reasonably, that
Plaintiff failed to satisfy his burden of proof. Accordingly, I reject Hocheiser’s argument that an
IME in his case was necessary.
D.

Liberty’s Failure to Prove that Plaintiff Can Perform Another Qualifying
Occupation

Finally, Hocheiser argues that even if the Court accepts the restrictions and limitations
found by Liberty’s physicians, there is still no evidence in the record that Hocheiser can perform
another qualifying occupation. (Pl. Moving Br. at 31.) According to Hocheiser, he is entitled to
LTD benefits under the Policy, if, after twenty-four months, he remains unable to return to his own
occupation and cannot perform the “Material and Substantial Duties” of “any occupation that [he]
is or becomes reasonably fitted by training, education, experience, age, [and] physical and mental
capacity.” (Id.) In making this determination, Plaintiff claims that Liberty relied on a transferable
skills analysis (“TSA”) produced by Teresa Marques, which Plaintiff argues is deficient, because
the report did not discuss whether Hocheiser could perform an alternate occupation. (Id. at 3132.) In response, Liberty argues that even if the Court were to consider Plaintiff’s “post hoc
critiques” of Liberty’s TSA and its vocational determination, Marques had determined that
Plaintiff was physically capable of performing a sedentary occupation and identified several
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sedentary occupations for which he was qualified. (Id. at 29-30.) Accordingly, because Plaintiff’s
functionality was deemed consistent with the physical demands of a sedentary occupation, there
was no need to address each exertional and non-exertional duty of the alternative occupations like
Plaintiff suggests. (Id. at 30.)
As threshold matter, Plaintiff’s argument fails because he did not raise this issue during the
administrative process. See Hilbert v. Lincoln Nat’l Life Ins. Co., 2017 WL 2633503, at *7 (M.D.
Pa. June 19, 2017), aff’d, 742 F. App’x 675 (3d Cir. 2018) (a plaintiff’s “attempt to now challenge
those vocational assessments . . . fails, as she did raise that argument during the administrative
process.”); Morningred v. Delta Family-Care & Surv. Plan, 790 F. Supp. 2d 177, 184 (D. Del.
2011), aff’d, 526 F. App’x 217 (3d Cir. 2013) (plaintiff “waived this issue by her failure to raise it
on appeal to the plan administrator.”). Indeed, Marques completed the TSA in May 2016, and
Liberty relied on the TSA in its decision to deny Plaintiff LTD benefits dated May 23, 2016.
Specifically, Liberty’s claim denial decision stated that, according to the TSA, Hocheiser possesses
certain transferable skills in the areas of sales, finance, communications, and customer service.
(Id. at 1194-95.) Based on these skills, Marques determined that Plaintiff could perform the
following occupations: financial sales representative, loan officer, or credit analyst. (Id.) Liberty
also sent Plaintiff a copy of his entire claim file, including the TSA. Nonetheless, Plaintiff failed
to raise any issues regarding the TSA in his Second Appeal, thereby depriving Liberty of an
opportunity to address any concerns. Importantly, Plaintiff does not refute nor contest this
position.
Moreover, even if the Court were to consider Plaintiff’s arguments regarding the TSA,
Plaintiff’s position is not persuasive. Plaintiff contends that the TSA fails to provide any
discussion regarding the material duties associated with the alternative occupations, nor does it

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contain any analysis regarding whether Hocheiser could perform these alternate occupations given
his restrictions and limitations. In support of this position, Plaintiff relies on Shah v. Broadspire
Servs., Inc., 2007 WL 2248155, at *6 (D.N.J. Aug. 2, 2007), in which the court, there, found that
a defendant’s denial of long term disability benefits was arbitrary and capricious because the
defendant’s employability assessment failed to determine whether a person with the plaintiff’s
physical limitations could perform the alternative jobs identified by the defendant’s consultant.
The instant case, however, is distinguishable. In Shah, the court expressly found that the
Employability Assessment was the “sole basis” for the defendant’s conclusion that alternative jobs
existed that could accommodate the plaintiff’s limitations. Id. Indeed, the court reasoned that the
although the Employability Assessment included a brief history of the plaintiff’s injury and
references to “medical records,” it was not “at all clear which medical records from which of
Plaintiff's treating physicians [the consultant] reviewed, and to what extent (if at all) those records
informed [her] conclusions. Thus, the court concluded that the defendant’s determination that the
plaintiff could physically perform certain jobs, despite his severe limitations, was based on a
flawed Employability Assessment. Id. Unlike in Shah, the TSA was not the only basis for
Liberty’s conclusion that Hocheiser could perform his Own Occupation or alternative occupations.
Rather, as discussed, supra, the overwhelming medical evidence in the record shows that
Plaintiff’s physical limitations would not prevent him from performing his Own Occupation or the
alternative sedentary occupations identified by TSA. See Drach v. Sun Life Assurance Co. of
Canada, No. 15-5467, 2016 WL 5417191, at *7 (D.N.J. Sept. 28, 2016) (declining to apply Shah
because the medical evidence in the record supported the findings in the vocational consultant’s
report).

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IV.

CONCLUSION
For the reasons set forth above, I find that Liberty’s decision denying Hocheiser’s LTD

benefits was not arbitrary and capricious. Liberty’s motion is GRANTED; and Plaintiff’s motion
is DENIED.
Dated: February 22, 2021

/s/ Freda L. Wolfson
Freda L. Wolfson
U.S. Chief District Judge

42