Ingravallo v. Hartford Life and Accident Insurance Company

Filing 45

MEMORANDUM & ORDER: Ingravallos motion 36 for summary judgment is granted; Hartfords motion 28 is denied. Entry of judgment will be withheld pending determination of the amount of benefits due. By April 17, 2013, the parties shall advise the Court whether they are able to agree on that amount. Ordered by Judge Frederic Block on 4/3/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DIANA INGRAVALLO,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 10-CV-5150 (FB)(JO)

-againstHARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, as
Administrator of the Delta Airlines, Inc.,
Long Term Disability Group Policy,
Defendant.
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Appearances:
For Plaintiff:
CARL E. PERSON, ESQ.
325 West 45th Street, Suite 201
New York, New York 10036-3803
MARC WHITEHEAD, ESQ.
5300 Memorial Drive, Suite 725
Houston, Texas 77007

For Defendant:
MICHAEL H. BERNSTEIN, ESQ.
MATTHEW P. MAZZOLA, ESQ.
Sedgwick LLP
125 Broad Street, 39th Floor
New York, New York 10004

BLOCK, Senior District Judge:
Pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”),
Diana Ingravallo seeks judicial review of the denial of long-term disability benefits under
a policy administered by Hartford Life and Accident Insurance Company (“Hartford”). See
29 U.S.C. § 1132(a)(1)(B).

The parties cross-move for summary judgment on the

administrative record (“AR”).1 For the following reasons, Ingravallo’s motion is granted and
Hartford’s is denied.

1

The AR has been presented to the Court as Bates-numbered exhibits to the
Declaration of Marsha L. Macko, a senior appeals specialist in Hartford’s Appeals Unit.
2

I
Ingravallo worked as an “air import coordinator” for BDP International. It is
undisputed that her job was “sedentary,” meaning that it required her to sit for most of the
workday, with brief periods of standing or walking, and to occasionally lift or carry no more
than 10 pounds of weight. It is further undisputed that the job involved an 8-hour workday
and a 40-hour work week.
Ingravallo participated in her employer’s long-term disability plan, which was
administered by Hartford. The policy defined “disability,” for the first 60 months of benefits
as “Injury or Sickness [that] causes physical or mental impairment to such a degree of
severity that You are . . . continuously unable to perform the Material and Substantial Duties of
Your Regular Occupation; and . . . not gainfully employed.” AR 000007.2 The plan delegated
to Hartford “sole discretionary authority . . . to determine [participants’] eligibility for
benefits and to interpret the terms and provisions of the plan and any policy issued in
connection with it.” AR 000024.
In 1996 or 1997, Ingravallo was diagnosed with relapsing-remitting multiple
sclerosis (“MS”). In 2000 and 2003 her condition required hospitalization for intravenous
administration of medication. In both cases, she was able to return to work. She gave birth
to her first child at the end of 2004.
In May 2005, Ingravallo complained to her neurologist, Dr. Andreas

2

After 60 months, the definition changed to “continuously unable to engage in
any occupation for which You are or become qualified by education, training or
experience.” AR 000007. This case concerns only “own occupation” disability.
3

Neophytides, of difficult walking and urinary urgency. Dr. Neophytides found new signs
of myelopathy3 and again had Ingravallo hospitalized for intravenous medication. The 2005
exacerbation led Dr. Neophytides to opine that Ingravallo was “no longer able to work in
any capacity,” and to advise that she “retire from work on a permanent basis.” AR 000845.
Ingravallo followed her doctor’s advice and applied for short-term disability
benefits. In support, Dr. Neophytides submitted a “Medical Assessment Tool” noting
weakness and spasticity in the lower extremities, as well as incontinence. To treat what he
described as “closely spaced exacerbations of myelopahy,” he prescribed an
immunosuppressive and anti-inflammatory regimen consisting of daily injections of
Betaseron and monthly injections of Solumedrol; he also prescribed Lexapro to treat related
depression. AR 001391. On July 6, 2005, Hartford approved the application “to allow for
[treatment] of most recent flare-up and efficacy of med[ication]s.” AR 000212.
As her short-term benefits approached exhaustion, Ingravallo applied for longterm benefits. She reported weakness and numbness in her hands and legs; impaired
memory, vision and coordination; urinary urgency; fatigue; and depression.

Dr.

Neophytides submitted a “Functional Assessment Tool” in which he stated that Ingravallo
was not capable of full-time employment due to paraparesis (partial paralysis of the legs)
and incontinence. He opined that Ingravallo would never be able to return to work because
3

MS is a demyelinating disease in which the body’s immune system attacks the
myelin sheaths covering neurons in the brain and spinal cord. This impairs the affected
nerves’ ability to function, which, in turn, can lead to numbness, weakness and fatigue,
and deficiencies in vision, motor skills, cognitive ability and other bodily functions
(such as bladder control). See Stedman’s Medical Dictionary 1733 (28th ed. 2006);
Encyclopedia of Medicine 701 (Charles B. Clayman, M.D., ed., 1989).
4

her “moderately advanced” relapsing-remitting MS was “turning into secondary
progressive” MS, a more serious stage of the disease in which many sufferers “begin
continuously deteriorating” without remission. AR 000085, 000787. Based on this evidence,
Hartford approved the application for long-term benefits. In addition, it offered Ingravallo
assistance in applying for Social Security benefits. The Social Security Administration
rendered a “fully favorable” decision on her application in August 2006. Hartford applied
the Social Security benefits as an offset to the amount of benefits it paid.
Hartford reviewed Ingravallo’s circumstances roughly once a year.

In

September 2006, Ingravallo reported “constant numbness [and] weakness” in her legs and
“chronic fatigue.” AR 001367. Dr. Neophytides added that she had complained of urinary
urgency and difficulty walking, and that a physical exam had revealed signs of a spastic gait
and hyperreflexia (overactive reflexes). He described Ingravallo’s condition as “improved,”
but opined that she could stand or walk for no more than “several minutes” and could sit
for no more than “[one] hour at a time.” AR 000757. Hartford approved the continuation
of benefits.
In October 2007, Ingravallo reported “constant fatigue” and “numbness in
hands [and] legs [and] feet.” AR 001319. She also reported the birth of her second child. Dr.
Neophytides reported continuing signs of paraparesis and hyperreflexia, and newly
observed “Babinski signs” in both feet.4 Dr. Neophytides opined that Ingravallo could not
4

A Babinski response occurs when the toes curve upward and fan out in response
to stimulation of the sole of the foot; it is abnormal and suggests damage to the tract
transmitting neural impulses from the brain to the spinal cord. See Stedman’s Medical
Dictionary 1766.
5

be expected to lift or carry any amount of weight, or to engage in activities that required
reaching, fingering or handling, bending at the waist, or kneeling or stooping. He also
restricted her from driving. Dr. Neophytides did not offer an opinion on Ingravallo’s ability
to stand, walk or sit, or the total amount of time she could do those activities in a day.
Hartford nevertheless approved the continuation of benefits.
In October 2008, Ingravallo stated that her symptoms had become “worse”
since the birth of her second child the previous year. AR 001299. She reported that she
required assistance to dress, bathe and use the toilet. Her husband and mother were
responsible for cooking and taking care of the children. She further complained of cognitive
difficulties handling money and her medication. She stated that she was no longer able to
work, cook or shop. Dr. Neophytides continued to report hyperreflexia and Babinski
responses; he opined that Ingravallo could sit for only two hours at a time, and could not
stand or walk for any length of time. He continued to opine that Ingravallo could not be
expected to lift or carry any amount of weight, or to engage in activities that required
reaching, fingering or handling, bending at the waist, or kneeling or stooping. He did not
report any signs of cognitive impairment.
Because Ingravallo reported needing assistance with daily activities, Hartford
investigated whether she qualified for the plan’s “catastrophic” disability benefit. In that
regard, it sought confirmation of her limitations from Dr. Neophytides. Dr. Neophytides
opined that Ingravallo did not require assistance in any daily activities.
The inconsistency between Ingravallo’s and Dr. Neophytides’s reports led
Hartford to refer the claim to its Special Investigations Unit (“SIU”). As additional reasons
6

for the referral, Hartford noted that Ingravallo was “able to get pregnant and deliver a child
in 10/07,” and that her self-reported restrictions “appear[ed] extreme for [her] reported
condition.” AR 001555.
Hartford’s SIU placed Ingravallo under video surveillance. A video taken on
November 14, 2008, shows Ingravallo pushing a baby stroller from her home to a pharmacy
two blocks away. She returns approximately 90 minutes later, with several plastic bags
hanging from the stroller. A video taken on November 15, 2008, shows Ingravallo unloading
grocery bags from the trunk of her car. She returns to retrieve a toddler and, later, two
plastic jugs.
Hartford concluded that the surveillance videos showed Ingravallo performing
activities “outside of her self-stated limitations and her physician provided limitations.” AR
001559. It assigned a claims examiner to conduct an in-person interview with Ingravallo.
During the interview, which took place on January 28, 2009, Ingravallo was shown the
surveillance videos. She acknowledged that the videos were of her, and stated that they
depicted her “normal/average level of functionality.” AR 001561-62.
At the conclusion of the interview, Ingravallo read, revised and signed a
prepared statement summarizing her complaints and the limitations they imposed. She
stated that “a lot of pain in both legs” prevented her from standing or walking for more than
10-15 minutes, during which she estimated she could walk two blocks. AR 001567. She
further complained of “pins and needles in [her] hands and feet,” which limited her manual
dexterity and prevented her from sitting for more than one hour, after which she needed to
put her feet up to relieve “the tingling and numbness in [her] feet.” AR 001569. She further
7

stated that she felt fatigued and napped during the day. Finally, she stated that she did not
see Dr. Neophytides “unless something is happening,” AR 001573; the record confirms that
her last visit was more than a year prior to the interview.
A medical case manager at Hartford reviewed Ingravallo’s file, including the
surveillance videos and Ingravallo’s statement, and opined that Ingravallo “appears to have
the ability to function up to 40 hrs per week in a sedentary capacity.” AR 000124. She asked
Dr. Neophytides for his opinion.
Before responding, Dr. Neophytides saw Ingravallo. In his notes of the visit,
he reported that she was “doing quite well without any clinical exacerbation for a long
time.” AR 001174. He opined that her MS was “stable” and that her depression/anxiety
was “under control.” AR 001175. He ordered updated MRIs
In his response to Hartford, Dr. Neophytides stated that Ingravallo’s MS had
been “fairly quiescent,” but that “there is something wrong with her gait” and that she
“continues to feel fatigued and her stamina remains diminished.” AR 001171-72. He also
reported that the updated MRIs had revealed “some improvement” in the demyelinating
lesions on Ingravallo’s cervical spine. AR 001172. By contrast, he observed that lesions on
at the T1 level (i.e., at the top of the thoracic spine) had developed into “black holes,” areas
of total demyelination where the nerve cells are damaged beyond repair. AR 001172. He
stated that “all neurological experts attest” that black holes “correlate well with the degree
of a patient’s disability.” AR 001172.
Upon receipt of Dr. Neophytides’s report, Hartford requested “peer review”
by an independent neurologist. Reviewing the file, Dr. Bruce Leforce concluded that
8

Ingravallo could sit “up to eight hours per day,” stand and walk “occasionally,” lift and
carry “up to ten pounds occasionally,” and exert “a negligible amount of force
continuously.” AR 001159. Accordingly, he opined that Ingravallo could “perform [a
sedentary] level for work for up to 40 hours per week.” AR 001159. Dr. Leforce noted that
“[c]ranial nerve examination was normal,” but did not comment on the extent of spinal
demyelination Dr. Neophytides had observed. AR 001159.
On April 30, 2009, Hartford informed Ingravallo that it had concluded that she
no longer met the definition of disability and that it would cease paying benefits as of May
1st. Hartford summarized its decision as follows:
[T]he activities that you demonstrated during surveillance show
you performing at levels in excess of your stated limitations and
without visible difficulty or limitation. A functional assessment
was performed indicating that you should be able to perform
your own occupation in a full-time capacity. An Independent
Record Review was completed and it was agreed that you were
capable of performing your own occupation on a full-time basis.
Utilizing the clinical information and the video surveillance it
has been determined that you are no longer totally Disabled
from Your Regular Occupation.
AR 000118.
Ingravallo administratively appealed the decision. In support, she submitted
the notes of further visits with Dr. Neophytides. In a note dated May 28, 2009, Dr.
Neophytides observed weakness and decreased sensitivity in the legs, a slightly spastic gait
and the return of Babanski signs in both feet. His overall impression was “moderately
advanced multiple sclerosis” with “recent exacerbation of thoracic myelopathy.” AR 000239.
He made essentially the same observations in a note dated December 10, 2009, adding that

9

there was some evidence of abnormality in Ingravallo’s left eye.
In processing the appeal, Hartford ordered a second peer review. Another
neurologist, Dr. Arousik Varpetian, reviewed Ingravallo’s file and concluded that as of May
1, 2009, she had “slight weakness” in her legs and a mildly spastic gait. AR 000230. He
opined that “fatigue due to weakness” prevented Ingravallo from walking quickly or for
longer than 30 minutes, and that “urinary urgency” required her to be near a restroom. AR
000230. Dr. Varpetian unsuccessfully attempted to speak to Dr. Neophytides, but he
nevertheless agreed with him that Ingravallo’s MS was “moderately advanced.” AR 000231.
That diagnosis, he opined, put her “at risk for developing significant fatigue and
decompensation.” AR 000231. He concluded, however, that “[d]ue to a lack of medical
information to support an inability to work (Functional Capacity Evaluation) [Ingravallo]
should be able to work at the sedentary leval from May 01, 2009 to the present.” AR 000231.
On February 18, 2010, Hartford upheld its decision to deny benefits. It
reasoned that “[n]o medical determination was provided which indicates that [Ingravallo]
experienced a significant exacerbation/relapse or MS during the past two years,” and that
“there is insufficient evidence substantiating disabling levels of fatigue after 04/30/09.” AR
000097. Hartford acknowledged that Ingravallo was still receiving Social Security benefits
as of the date of its decision, but stated that “the Social Security Administration and The
Hartford use different definitions of disability and different criteria for awarding or
continuing to approve disability benefits.” AR 000097.
This action timely followed.

10

II
Where an ERISA plan “gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan,” a denial
of benefits by the administrator must be upheld unless it is arbitrary and capricious. Kintsler
v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) (quoting Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). A denial is arbitrary and capricious if it is
“without reason, unsupported by substantial evidence or erroneous as a matter of law.” Id.
(quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)).
“[I]f a benefit plan gives discretion to an administrator or fiduciary who is
operating under a conflict of interest, that conflict must be weighed as a factor in
determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115 (internal
quotation marks, alteration and citation omitted). In Metropolitan Life Insurance Co. v. Glenn,
554 U.S. 105 (2008), the Supreme Court held that a conflict of interest exists when “a plan
administrator both evaluates claims for benefits and pays benefits claims.” Id. at 112. It then
reaffirmed that such a conflict was a factor to be considered, and explained its importance
would vary from case to case:
The conflict of interest . . . should prove more important
(perhaps of great importance) where circumstances suggest a
higher likelihood that it affected the benefits decision, including,
but not limited to, cases where an insurance company
administrator has a history of biased claims administration. It
should prove less important (perhaps to the vanishing point)
where the administrator has taken active steps to reduce
potential bias and to promote accuracy, for example, by walling
off claims administrators from those interested in firm finances,
or by imposing management checks that penalize inaccurate
decisionmaking irrespective of whom the inaccuracy benefits.
11

Id. The Second Circuit has added that “[n]o weight is given to a conflict in the absence of
any evidence that the conflict actually affected the administrator’s decision.” Durakovic v.
Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 140 (2d Cir. 2010).
Since Hartford both evaluated and paid claims, its decisions were made under
the structural conflict of interest identified in Glenn. Ingravallo has not offered any evidence
of biased claims administration, while Hartford has offered undisputed evidence that its
eligibility determinations are made without input from its underwriters by individuals who
do not receive financial incentives to deny claims. It uses third-party vendors, rather than
Hartford employees, to perform peer reviews of medical evidence. Ingravallo’s appeal was
not decided by the same person who initially denied continuation of benefits; indeed, the
appeals specialist attests that she “did not discuss the claim with the [person] who make the
initial benefits determination, or his supervisors.” Decl. of Marsha L. Macko ¶ 10. This
evidence mitigates the likelihood that the structural conflict of interest affected Ingravallo’s
claim. Accord Durakovic, 609 F.3d at 140 (“[The district] court properly noted that the Funds’
procedures provide many safeguards against bias.” (internal quotation marks, alterations
and citation omitted)).
The absence of “external” evidence of bias does not mean, of course, that the
conflict played no role in Hartford’s decision. See id. at 140-41 (“But the [district] court did
not seem to consider the Funds’ decisionmaking deficiencies[. I]n light of them, the district
court should have accorded the conflict more weight.”). But assessing the effect of the
conflict, as evidenced by the decision itself, obviously requires the Court to address the
merits of the decision.
12

As set forth below, the Court concludes that Hartford’s decision was defective
in three respects. It is not necessary for the Court to hold that these defects demonstrate that
the decision was the product of a conflict of interest; it is sufficient to say that they render
the decision arbitrary and capricious.
A. Social Security Benefits
“A plan administrator making discretionary determinations as to eligibility is
not bound by the determination of the Social Security Administration.” Rudolph v. Joint
Indus. Bd. of Elec. Indus., 137 F. Supp. 2d 291, 300 (S.D.N.Y. 2001) (citing Kunstenaar v.
Connecticut Gen. Life Ins. Co., 902 F.2d 181, 184 (2d Cir.1990)). It does not follow, however,
that an award of Social Security benefits is irrelevant. The insurer in Glenn ceased paying
benefits on the ground that the plaintiff was not disabled. It had previously assisted the
claimant in obtaining Social Security benefits, and then “deducted the amount of those
government benefits from the disability payments that it was obliged to pay.” Glenn v.
MetLife, 461 F.3d 660, 667 (6th Cir. 2006). The circuit court concluded that the insurer’s
actions had “two ramifications”:
The first stems from the fact that MetLife assisted Glenn in
obtaining Social Security benefits and reaped a financial benefit
of its own when that assistance was successful. The second issue
relates to the fact that, in denying Glenn continuation of her
long-term benefits, MetLife failed to address Social Security’s
contrary determination of Glenn's status. It is obvious that both
factors are relevant in determining whether MetLife's decision
was arbitrary and capricious.
Id. The Supreme Court endorsed the circuit court’s reasoning, adding that “this course of
events was not only an important factor in its own right (because it suggested procedural

13

unreasonableness), but also would have justified the court in giving more weight to the
conflict (because MetLife’s seemingly inconsistent positions were both financially
advantageous).” Glenn, 554 U.S. at 118.
Like the insurer in Glenn, Hartford benefitted from Ingravallo’s Social Security
award while it paid benefits. And like the insurer in Glenn, Hartford declined to give the
Social Security Administration’s determination any weight when it decided to stop paying
benefits. The only difference is that Hartford offered a reason, while the insurer in Glenn did
not.
Hartford reasoned that “the Social Security Administration and The Hartford
use different definitions of disability and different criteria for awarding or continuing to
approve disability benefits.” AR 000097. The Court fails to see any meaningful difference
between Hartford’s definition—“Injury or Sickness [that] causes physical or mental
impairment to such a degree of severity that You are . . . continuously unable to perform the
Material and Substantial Duties of Your Regular Occupation,” AR 000007—and the Social
Security Administration’s definition (applied at step four of the familiar five-step analysis)
of

“physical or mental impairment or impairments [that] are of such severity that [the

claimant is . . . unable to do his previous work.” 42 U.S.C. § 423(d)(2)(A). Indeed, since the
Social Security Administration’s definition goes on to require that the claimant not be able
to “engage in any other kind of substantial gainful work which exists in the national
economy,” id. (emphasis added), it is more restrictive than Hartford’s definition.
It is true, of course, that Hartford agreed that Ingravallo was disabled when
the Social Security benefits were first awarded in August 2006. Like Hartford, however, the
14

Social Security Administration periodically reviews claims to determine whether benefits
should be continued. See 20 C.F.R. § 404.1589 (“[W]e must evaluate your impairment(s) from
time to time to determine if you are still eligible for disability cash benefits.”). Although the
record does not reflect whether any such “continuing disability review” was conducted for
Ingravallo, it is undisputed that she was still receiving benefits as of February 18, 2010.
The Court repeats that Hartford was not required to follow the Social Security
Administration’s determination. But having reaped the benefit of the latter’s finding of
disability, Hartford should at least have offered a sensible reason for its change of heart.
Because the Court’s review depends on many factors, see Glenn, 554 U.S. at 117
(‘[W]hen judges review the lawfulness of benefit denials, they will often take account of
several different considerations . . . .”), it need not decide whether Hartford’s failure to
provide a cogent reason for its disagreement with the Social Security Administration would,
standing alone, be fatal. Even without considering that factor, the Court concludes that
other defects render Hartford’s decision arbitrary and capricious.
B. Conflicting Medical Evidence
A major aspect of plan administrators’ discretion is weighing conflicting
evidence.

Unlike the Social Security Administration, they are not required to give

controlling or other special weight to the opinions of treating physicians. See Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 831 (2003). Nevertheless, the manner in which
conflicting evidence is addressed can render a decision arbitrary and capricious. In
McCauley v. First Unum Life Insurance Co., 551 F.3d 126 (2d Cir. 2008), the Second Circuit held
that an insurer’s “reliance on one medical report in support of its denial to the detriment of
15

a more detailed contrary report without further investigation was unreasonable.” Id. at 138.
Here, Dr. Neophytides’s assessment of Ingravallo’s limitations was more
restrictive than the assessments of Hartford’s peer reviewers, Dr. LeForce and Dr. Varpetian.
Hartford argues that Dr. Neophytides’s assessment was appropriately discounted because
he “deemed Ingravallo disabled not due to any current functional restrictions/limitations,
but due to concerns that she might have another exacerbation in the future.” Hartford’s
Mem. of Law 10.5
In the main, the Court agrees. However, Dr. Neophytides specifically noted
the presence of “black holes” on Ingravallo’s most recent MRIs and opined that “all
neurological experts attest” that their presence “correlate well with the degree of a patient's
disability.” AR 001172. Dr. Leforce noted that his review of the medical records included
the MRIs, but did not contradict Dr. Neophytides’s assessment of their significance on
Ingravallo’s limitations. Dr. Varpetian did not mention them at all; indeed, he evidently
based his opinion regarding Ingravallo’s ability to work on a “lack of medical information.”
AR 000231.
The Court need not linger over whether Dr. Neophytides’s assessment was
“more detailed,” McCauley, 551 F.3d at 138, in some abstract sense. The important point is
that it raised an important detail that Hartford’s peer reviewers did not address. Hartford’s

5

Ingravallo does not press the argument raised in her administrative appeal that
Hartford is obliged to consider the likelihood of future exacerbations in determining
disability. In any event, Hartford’s position that an applicant must meet the definition
of disability throughout the period during which benefits are paid is an altogether
reasonable exercise of its discretion to interpret the plan’s provisions.
16

decision to rely on the peer reviewers’ assessments without first filling in the lacuna was
arbitrary and capricious.
C. Surveillance
Hartford’s decision to stop paying benefits is ultimately traceable to the
surveillance videos. Those videos undoubtedly show Ingravallo doing things that she
claimed not to be able to do.6 But Hartford’s definition of disability depends on Ingravallo’s
ability to do work, not her ability to do chores. Cf. Murdaugh v. Sec’y of Dep’t of Health &
Human Servs., 837 F.2d 99, 102 (2d Cir. 1988) (“[A] claimant need not be an invalid to be
found disabled under . . . the Social Security Act.”).
To fulfill the requirements of her prior job, Ingravallo must, among other
things, be able to sit for most of a workday. The surveillance videos do not contradict her
self-reported inability to sit for prolonged periods before she needs to elevate her feet. More
generally, Ingravallo must be able to perform whatever tasks her job requires—whether
sitting, standing or walking—for eight hours a day and forty hours a week. The Court
concludes that the surveillance videos do not constitute substantial evidence that she is able
to do so.
III
The Court appreciates that relapsing-remitting MS affects different sufferers
to different degrees. See Fortune v. Group Long Term Disability Plan for Employees of Keyspan

6

It is worth noting, however, that Ingravallo never sought the “catastrophic”
disability benefit that would have paid for assistance with those activities. The decision
to investigate whether Ingravallo was eligible for that benefit was Hartford’s alone.
17

Corp., 637 F. Supp. 2d 132, 143 (E.D.N.Y. 2009) (upholding denial based on evidence that
applicant “suffered from no objective functional limitations other than intermittent
weakness”), aff’d, 391 F. App’x 74 (2d Cir. 2010). Moreover, it is, as its name suggests, a
disease whose effects fluctuate over time. That being said, Hartford’s conclusion that
Ingravallo’s condition had improved to such an extent that she was able, as of May 1, 2009,
to perform sedentary work on a full-time basis was arbitrary and capricious.
Accordingly, Ingravallo’s motion for summary judgment is granted; Hartford’s
motion is denied. Entry of judgment will be withheld pending determination of the amount
of benefits due. By April 17, 2013, the parties shall advise the Court whether they are able
to agree on that amount. 7
SO ORDERED.

______________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 29, 2013

7

In her briefing, Ingravallo requested attorney’s fees pursuant to 29 U.S.C. §
1132(g)(1). Such a request must be made by separate motion within 14 days after entry
of judgment. See Fed. R. Civ. P. 54(d)(2).
18