Rehkugler v. Aetna, Inc. et al

Filing 31

DECISION AND ORDER denying # 24 Plaintiff's motion for judgment on the administrative record; and granting # 25 Defendant's Motion for Summary Judgment. Plaintiff's amended complaint is dismissed in its entirety. Signed by Chief Judge Glenn T. Suddaby on 7/14/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
DANIEL REHKUGLER,
Plaintiff,
v.

5:16-CV-0024
(GTS/ATB)

AETNA LIFE INS. CO.,
Defendant.
________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF JAMES D. HARTT
Counsel for Plaintiff
70 Linden Oaks, 3rd Fl.
Rochester, NY 14625

JAMES D. HARTT, ESQ.

EPSTEIN BECKER & GREEN, P.C.
Counsel for Defendant
250 Park Ave.
New York, NY 10177

KENNETH J. KELLY, ESQ.
LORI A. MEDLEY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by Daniel Rehkugler ("Plaintiff") against
Aetna Life Insurance Company ("Defendant" or "Aetna"), pursuant to the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., are Plaintiff's motion for
judgment on the administrative record and Defendant's motion for summary judgment. (Dkt.
Nos. 24, 25.) For the reasons that follow, Plaintiff's motion is denied and Defendant's motion is
granted.

I.

RELEVANT BACKGROUND
A.

Plaintiff's Amended Complaint

Generally, in his Amended Complaint, Plaintiff alleges as follows. Plaintiff is (and, at all
relevant times, was) employed by Federal Express Ground System, Inc. ("FedEx") as a
"maintenance technician." (Dkt. No. 6 at ¶¶ 6, 9 [Plf.'s Am. Compl.].) Plaintiff was covered
under a long-term disability ("LTD") plan ("the LTD Plan"), which was administered and
insured by Defendant. (Id. at ¶ 14.) On January 23, 2014, Plaintiff was "removed from work"
due to disability, and, accordingly, he applied for benefits under the LTD Plan. (Id. at ¶ 15.) In
so doing, Plaintiff provided Defendant with medical evidence establishing that he suffered from
degenerative thoracolumbar scoliosis, foraminal stenosis, and central canal stenosis, and, as a
result, that he was disabled within the meaning of the LTD Plan. (Id. at ¶¶ 19, 21-25.) Despite
this evidence, however, Defendant denied his claim for LTD benefits "in bad faith." (Id. at ¶
26.)
Based upon the foregoing allegations, Plaintiff asserts a claim for the wrongful denial of
benefits under the LTD Plan pursuant to 29 U.S.C. § 1132(a)(1)(B). (Id. at ¶ 32.) Moreover,
Plaintiff requests an Order permanently enjoining Defendant "from denying payment of future
recurring claims" pursuant to 29 U.S.C. § 1132(a)(1)(B) and (a)(3)(A). (Id. at ¶ 34, Prayer for
Relief at ¶ A.)1

1

The Court notes that, in his original Complaint, Plaintiff also asserted that
Defendant improperly denied his claim for benefits for short term disability ("STD") benefits
under its STD Plan. (Dkt. No. 1 [Plf.'s Compl.].) However, Plaintiff's Amended Complaint does
not contain a claim related to Defendant's denial of STD benefits.
2

B.

Undisputed Material Facts

As an initial matter, a few words are appropriate with respect to the manner in which the
parties' motions were briefed. Plaintiff's motion is denominated variously as one seeking
"judgment on the law" (Dkt. No. 24 [Plf.'s Notice of Motion, Caption]), "judgment on the
administrative record" (Dkt. No. 24 [Plf.'s Notice of Motion, Text]; Dkt. No. 24, Attach. 2 [Plf.'s
Memo. of Law, Cover Page Caption]), and/or "JUDGMENT ON THE ERISA RECORD" (Dkt.
No. 24, Attach. 1 [Proposed Order/Judgment]). Plaintiff's motion papers also contain passing
reference to Fed. R. Civ. P. 56, which governs motions for summary judgment. (See, e.g., Dkt.
No. 24, Attach. 2 [noting that Plaintiff seeks "judgment pursuant to [Fed. R. Civ. P.] 7(b), 56,
[and] ERISA § 502"].) The Second Circuit has noted that a "'motion for judgment on the
administrative record' . . . does not appear to be authorized in the Federal Rules of Civil
Procedure." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003).2 Because
"[m]any courts have either explicitly or implicitly treated such motions . . . as motions for
summary judgment under Rule 56," the Court will treat Plaintiff's motion as one seeking
summary judgment. Muller, 351 F.3d at 124; accord, e.g., Tulino v. Un. of Ohmaha Life Ins.
Co., 15-CV-3731, 2017 WL 384068, at *6 (S.D.N.Y. Jan. 26, 2017); Rao v. Life Ins. Co. of N.
Am., 100 F. Supp. 3d 210, 219 (N.D.N.Y. 2015) (Hurd, J.).
Although Plaintiff did not file a separate statement of material facts ("Rule 7.1
Statement"), the Court construes Part II of his memorandum of law–which consists of purported

2

Additionally, the Court notes that, while Fed. R. Civ. P. 50 deals with granting (or
denying) judgment as a matter of law in the context of a jury trial, "there is no right to a jury trial
under ERISA[.]" Muller, 341 F.3d at 124; accord, O'Hara v. Nat'l Union Fire Ins. Co. of
Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011) ("[T]here is no right to a jury trial in a suit
brought to recover ERISA benefits[.]").
3

factual assertions set forth in numbered paragraphs with parenthetical record citations
purportedly supporting those assertions–to be a Rule 7.1 Statement. (Dkt. No. 24, Attach. 2, Part
II.) However, the Court notes that several of Plaintiff's purported factual assertions constitute
improper legal arguments (see, e.g., Dkt. No. 24, Attach. 2, ¶¶ 2, 3, 6, 9, 12, 19, 20, 23), are
worded in a manner that misleadingly characterizes the record citation provided (see, e.g., id., ¶¶
7 [asserting that Plaintiff was "told by FedEx that he qualified for STD benefits under the plan,
and began to collect STD benefits shortly after taking leave," but citing a letter apparently
related to a different disability for which he claimed benefits several years prior to the disability
at issue in this case], 15 [attributing medical diagnostic conclusions to "Aetna's own assigned
Surgeon" and citing a report in which Dr. Martin Mendelssohn, M.D., a reviewing physician for
Aetna, summarized the contents of Plaintiff's medical file]), or are broad assertions not supported
by a specific citation to the record (see, e.g., id., ¶ 3 [citing hundreds of pages of the
administrative record for "(t)he nature of Plaintiff's disability[] and a history thereof"]). Plaintiff
is respectfully reminded that a statement of material facts must "set forth, in numbered graphs,
each material fact," and must "set forth a specific citation to the record where the fact is
established." N.D.N.Y. L.R. 7.1(a)(3) (emphasis added).3

3

Moreover, in an affidavit filed in opposition to Defendant's motion for summary
judgment, Plaintiff purports to "[a]ffirm" or "[d]eny" the facts asserted in Defendant's Rule 7.1
Statement. (Dkt. No. 28, Attach. 1.) The Court construes Plaintiff's affidavit to be a response to
Defendant's Rule 7.1 Statement ("Rule 7.1 Response"). However, as Defendant notes in its reply
memorandum of law, Plaintiff's Rule 7.1 Response does not comply with Local Rule 7.1(a)(3)
because (1) it does not "mirror" Defendant's Rule 7.1 Statement by setting forth his responses in
matching numbered paragraphs, and (2) it does not contain specific citations to the record where
purported factual issues arise. N.D.N.Y. L.R. 7.1(a)(3). Despite these shortcomings, the Court
has liberally considered Plaintiff’s Rule 7.1 Response in conjunction with its review of
Defendant's Rule 7.1 Statement and the administrative record.
4

With these considerations in mind, unless it otherwise notes, the Court draws the
following facts from one of the party's (or both parties') Rule 7.1 Statement. Moreover, unless
otherwise noted, the following facts are either expressly admitted or inadequately denied by the
opposing party's response Rule 7.1 Response. (Dkt. No. 24, Attach. 2, Part II [Plf.'s Rule 7.1
Statement]; Dkt. No. 29, Attach. 3 [Def.'s Rule 7.1 Response]; Dkt. No. 25, Attach. 4 [Def.'s
Rule 7.1 Statement]; Dkt. No. 28, Attach. 1 [Plf's Rule 7.1 Response].) Where appropriate, the
Court also refers directly to the administrative record filed by the parties. (Dkt. No. 21
[Administrative Record ("AR")].)4
1.

General Background

Defendant is the claims-paying administrator and claim fiduciary for FedEx's LTD Plan.
In February 2014 (the time at which he first sought disability benefits), Plaintiff worked for
FedEx as a Maintenance Technician Specialist I. According to FedEx’s job description for this
position, Plaintiff's working conditions included "moderate physical requirements" and lifting
"[u]p to 25 pounds" 33-66 percent of the time, "[u]p to 50 pounds" less than 33 percent of the
time, "[u]p to 100 pounds" less than 33% of the time, and "[o]ver 100 pounds" less than 33
percent of the time. (AR 860.)5 As a Maintenance Technician Specialist I, Plaintiff performed

4

As discussed below, the appropriate standard of review in this case is whether
Defendant's denial of Plaintiff's claim for benefits was arbitrary and capricious. "If the district
court engages in an arbitrary and capricious standard of review, the court's review is limited to
the administrative record." McCarthy-O'Keefe v. Local 295/851 IBT Employer Grp. Pension
Trust Fund, 648 F. App'x 145, 146 (2d Cir. 2016) (summary order).
5

The job description for a Maintenance Technician Specialist I defines "[m]oderate
[p]hysical [r]equirements” as follows: "Regularly involves lifting, bending, or other physical
exertion–often exposed to one or more disagreeable environmental factors, such as heat, cold,
noise, dust, dirt, chemicals, etc., with one often to the point of being objectionable–inquiry may
require professional treatment–usually not result in significant loss of work time–some
5

"standard preventative maintenance procedures" on various machines and systems within the
FedEx facility. (Id.)
2.

Plaintiff's Claim for STD Benefits and Defendant's Initial Denial

Plaintiff sought to take disability leave starting on January 23, 2014, due to lower back
pain, scoliosis, and spinal stenosis. Plaintiff filed an claim for short term disability ("STD")
benefits (which was assigned claim number 9349447) and provided medical records showing
that he had a history of chronic lower back pain dating back to 2008.6 According to Plaintiff's
medical records from 2008 and 2009, x-ray and MRI examinations revealed that he had various
impingements, bulging disks, and extrusion, curvature of the spine, and foraminal stenosis. (AR
812 [Progress Note, dated 1/30/2009].)7
Plaintiff's claim for STD benefits under FedEx's STD Plan was denied. Defendant denied
Plaintiff's claim on the basis that (according to Defendant) the medical records and diagnostic
test results received, along with the results of a functional capacity evaluation ("FCE") (as
communicated to Defendant by Matthew Bowman, a physical therapist, because Plaintiff never
provided the FCE report to Defendant), did not support his claim that he was completely

precautions required, (i.e., protective clothing, safety glasses)." (AR 864.)
6

As noted above, Plaintiff's Amended Complaint does not contain a claim for
recovery of STD benefits. However, Defendant considered documentation related to his claim
for STD benefits when it evaluated his claim for LTD benefits. This documentation is discussed
in greater detail below.
7

The same medical records reflect that, at the time, Plaintiff was in "no acute
distress," had normal range of motion for his lumbar spine for flexion, extension, and rotation,
had a normal straight leg raising test and normal strength in his lower extremities. (AR 812
[Progress Note, dated 1/30/2009].)
6

disabled from performing the duties of his own occupation.8
Plaintiff appealed the denial of his STD claim, asserting that he was unable to perform
his job because of "back pain due to scoliosis, stenosis & osteoarthritis." (AR 790.)9 By letter
dated January 28, 2015, Defendant upheld its decision to deny Plaintiff's claim for STD benefits.
In so doing, Defendant noted that, during a peer-to-peer consultation with Plaintiff's treatment
provider, Dr. Harold Husovsky, M.D., "Dr. Husovky [sic] could not provide any evidence of any
functional or neurological deficits." (AR 687.) However, Plaintiff was granted benefits pursuant
to a New York State disability claim for the time period from January 30, 2014 to July 30,
2014.10 Moreover, entries from Defendant's claims system reflect that Plaintiff was approved for
8

The letter advising Plaintiff that his STD claim had been denied stated as follows:
After review of the medical information received there was a lack
of significant quantifiable physical examination findings, such as
range of motion measurements in degrees, gait analysis, and
detailed neurological examination to correlate with your subjective
complaints to support a functional impairment. In addition, the
diagnostic studies performed and commented on above revealed no
significant interval change compared to previous imaging studies.
The peer-to-peer telephonic conference with Mathew Bowman,
physical therapist, indicated that you were capable of lifting 60-75
pounds occasionally and could safely work in a medium physical
demand category eight hours a day. The results of the Functional
Capacity Evaluation would be in compliance with your job
description as a maintenance technician specialist I for Federal
Express described as a medium to heavy physical demand
category.

(AR 518-19.)
9

A separate letter appeal, sent by Plaintiff's counsel on the same date that Plaintiff
completed his appeal form, contains the STD claim number (9349447) but references
"LongTerm [sic] Disability Benefits." (AR 794.)
10

Plaintiff neither admits nor denies this fact, but states that he thought that the
short-term disability benefits he was receiving were being paid by Aetna. (Dkt. No. 28, Attach.
7

Social Security Disability Insurance based on his back issues as of January 2014. (E.g., AR
197.)
3.

Relevant Language of the LTD Plan

Defendant is the claims-paying administrator of the LTD Plan. Pursuant to the LTD
Plan, Defendant possesses discretionary authority as follows:
The Claims Paying Administrator, shall, subject to the
requirements of the Code and ERISA, be empowered to interpret
the Plan's provisions in its sole and exclusive discretion in
accordance with its terms with respect to all matters properly
brought before it pursuant to this Section 5.3, including, but not
limited to, matters relating to the eligibility of a claimant for
benefits under the Plan. The determination of the Claims Paying
Administrator on review of an appeal shall be made in a fair and
consistent manner in accordance with the Plan's terms and its
decision shall be final, subject only to a determination by a court
of competent jurisdiction that the Claims Paying Administrator's
decision was arbitrary and capricious.
(AR 67-68.) With respect to the burden of proof, the LTD Plan states as follows:
The burden of proof for establishing a Disability is on the Covered
Employee and the Covered Employee must produce sufficient
proof to prove such Disability; at no time is it the Administrator's
or Claims Paying Administrator's duty or responsibility to

1 [Plf.'s Affid.].) Documents in the administrative record (specifically, claims notes in
Defendant's Central Note System) reflect that, although Plaintiff's claim for STD benefits
pursuant to Aetna's STD Plan were denied, he was awarded STD benefits through New York
State (which was assigned claim number 9349451). (AR 198, 232, 399-40, 405.) Any confusion
on Plaintiff's part appears justified because, on February 25, 2014 (the same date that Aetna sent
him the letter referenced in note 9, above), Aetna sent him a letter informing him that his
application for benefits under "the FedEx Ground self-funded Short-Term Disability group plan .
. . administered by Aetna" had been approved. (AR 520.) As reflected by its reference to claim
number 9349451, the approval letter concerned Plaintiff's benefits under New York State law;
and, as reflected by its reference to claim number 9349447, the denial letter bearing the same
date concerned Plaintiff's application for benefits under FedEx's STD Plan. The administrative
record does not otherwise reflect that Plaintiff was awarded benefits pursuant to FedEx's STD
Plan.
8

investigate a Covered Employee's claim or otherwise gather proof
in support of such Covered Employee's claim for Disability
Benefits.
(AR 61.) With respect to what information may constitute "sufficient proof" the LTD Plan states
as follows:
Such [sufficient] information may, as the Claims Paying
Administrator shall determine, consist of a certification from the
Covered Employee's attending Practitioner, in the form prescribed
by the Claims Paying Administrator, information in the form of
personal references, narrative reports, pathology reports, x-·rays
and any other medical records or other information as may be
required by the Claims Paying Administrator.
(AR 60.)
The LTD Plan defines "Disability" or "Disabled" as "either an Occupational Disability or
a Total Disability[.]" (AR 37.) To meet either of these definitions, a Covered Employee must
(1) be, "during the entire period of Disability, under the direct care and treatment of a
Practitioner," and (2) "substantiate[]" his or her Disability "by significant objective findings
which are defined as signs which are noted on a test or medical exam and which are considered
significant anatomical, physiological or psychological abnormalities which can be observed
apart from the individual's symptoms." (AR 37-38.)
The LTD Plan defines "Occupational Disability" as follows:
[T]he inability of a Covered Employee, because of a medicallydeterminable physical or functional impairment . . . to perform the
essential functions of his regular occupation or of a reasonable
employment option offered to him by the Employer and, as a
result, he is unable to earn more than 80% of his pre-disability
monthly income.

9

(AR 41.) The LTD Plan defines "Total Disability" as follows:
[T]he complete inability of a Covered Employee, because of a
medically-determinable physical or functional impairment . . . to
perform the essential functions of any gainful occupation for which
he is qualified on the basis of his education, training, experience,
or ability, and, as a result, the Covered Employee is unable to earn
more than 60% of his pre-disability monthly income for employees
who have chosen the Basic Plan Option or is unable to earn more
than 70% of his pre-disability income for employees who have
chosen the Premiere Plan Option.
(AR 42-43.) With respect to the time at which a benefit commences, the LTD Plan states as
follows:
The Disability Benefit shall commence to accrue on the day
following the conclusion of all benefits payable to the Disabled
Covered Employee pursuant to the FedEx Ground Package
System, Inc. Short Term Disability Plan . . . on account of the
same condition for which benefits are payable hereunder and shall
be payable monthly during the continuation of Disability as
provided herein.
(AR 47-48.)
4.

Plaintiff's Claim for LTD Benefits

Plaintiff filed a claim for benefits pursuant to the LTD Plan, which Defendant reviewed
while Plaintiff's appeal from the denial of his claim for STD benefits was under consideration.
On October 17, 2014, Defendant interviewed Plaintiff by telephone. During the call, Plaintiff
stated that he was experiencing back pain that had been ongoing for six years, and that his
physician had advised him to limit himself in climbing ladders, and that he was unable to bend,
crawl, lift, stand, or sit. Moreover, Plaintiff stated that no testing had been done in the previous
six months, and that his medical treatment plan at that time was to take medication and follow up
with his doctor every six months.

10

a.

Plaintiff's Medical Records

At the time Defendant was initially determining Plaintiff's LTD claim, it had to rely
on the information and medical records that had been submitted as part of his STD
claim because Plaintiff had not provided any updated or additional documents in support of his
LTD claim. Among the documents constituting his STD claim file were three medical records
from Dr. Harold Husovsky, Plaintiff's family practitioner, and/or his medical practice, related to
the time period from October 11, 2013, through January 22, 2014. (AR 728-29, 825-28, 82932.) These records reflect (among other things) that Plaintiff previously underwent surgery on
his knee, left shoulder (in 2009), and right shoulder (in 2010). (AR 826, 842.) However, these
records do not discuss what (if any) functional impairments Plaintiff has as a result of his lower
back pain and related diagnoses.11

11

A medical record related to an appointment on October 11, 2013, reflects that
Plaintiff was seen for lower back pain and related symptoms that "have been present for 5
years[.]" (AR 825.) The record reflects that Plaintiff reported lower back pain rated 8/10 in
severity that was aggravated by bending, sitting, standing, and walking. (Id.) On examination,
Plaintiff exhibited "mild tenderness" and "mild to moderate spasm" of the lumbosacral spine
area, as well as "[p]ainful and reduced" range of motion. (AR 828.) The medical record does
not quantify what Plaintiff's range of motion was.
In a medical record dated October 31, 2013, Dr. Richard Tallarico reviewed
recent imaging films that had been taken of Plaintiff's thoracolumbar spine and pelvis and
compared them to files from 2009. Dr. Tallarico noted that Plaintiff's scoliotic deformity with
compensatory curve, as well as his degenerative disc disease, was unchanged from his 2009
films. On examination, Plaintiff's motor strength in his lower extremities was five out of five, he
had a negative straight-leg raise, and he exhibited a limited range of motion with forward
flexion, hyperextension, and lateral bending. (AR 728.) The record reflects that Dr. Tallarico
also requested an updated MRI and directed Plaintiff to "look into Social Security disability[.]"
(Id.)
According to a medical record dated January 22, 2014, Plaintiff presented to Dr.
Husovsky with complaints of back pain. (AR 829.) On examination, Plaintiff's lumbosacral
spine area had "mild-moderate tenderness and mild spasm" and "[p]ainful and reduced"
lumbosacral range of motion. (AR 831.) Plaintiff's straight-leg raise was positive at 20 degrees
on bilateral and his deep tendon reflex, motor strength and sensation were all "normal." (Id.)
Plaintiff was prescribed pain medication. (AR 832.)
11

Dr. Husovsky also completed an Attending Physician Statement ("APS"), executed in
January 2014, as well as two Attending Physician Recertification Statements ("APRS"), dated
April 7, 2014, and June 26, 2014, respectively (AR 736, 800-01.) In the APS, Dr. Husovsky
stated that Plaintiff was disabled from work starting on January 23, 2014, and for an "indefinite"
period, but did not provide any clinical information or objective findings related to a functional
impairment. (AR 736.) In the APRSs, Dr. Husovsky stated that Plaintiff was experiencing
"[c]hronic low back pain" that "prevent[ed] any type of labor" and had not improved. (AR 80001.)
Plaintiff underwent an MRI examination in 2013, and, in a medical report dated
December 2, 2013, Dr. Barbara Henriquez, M.D., observed that the MRI reflected "[n]o
significant interval changes" compared to the results of an MRI examination completed in
October 2009.12 (AR 719-20.) Similarly, x-ray examinations of Plaintiff's pelvis, thoracolumbar
spine, and lumbar spine were completed in 2013 and compared with imaging taken in 2008 and
2009. (AR 721-26.) These comparisons reflected no significant interval changes since the
earlier x-ray examinations, but the thoracolumbar spinal x-ray did reveal "extensive degenerative
changes . . . throughout the thoracolumbar spine[.]" (AR 721, 723, 725.)
b.

Independent Peer Review of Dr. James Wallquist, M.D.

In February 2014 (in conjunction with Plaintiff's claim for STD benefits), Defendant
retained Dr. James Wallquist, M.D., a board certified orthopedic surgeon, to perform an
independent peer review of Plaintiff's medical records. As part of his peer review, Dr. Wallquist

12

Plaintiff's 2009 MRI reflected, inter alia, a left convex curvature of the lumbar
spine and numerous instances of disc bulge and mild to moderate canal and foraminal stenosis.
(AR 719.)
12

conducted a peer-to-peer telephone conference with Dr. Husovsky on February 13, 2014.
During the conference, Dr. Husovsky advised Dr. Wallquist that Plaintiff completed an FCE in
January 2014, but that he (Dr. Husovsky) was "unable to provide the summary relative to
[Plaintiff's] level of functionality[.]" (AR 715 [Physician Review Report of Dr. Wallquist,
2/19/2014].) Dr. Husovsky recommended that Dr. Wallquist contact Mr. Bowman, the physical
therapist who performed the FCE. (Id.) With respect to "the issue of functional impairment and
disability," Dr. Husovsky stated that he "would defer that decision to the orthopedist or
physiatrist" to whom Dr. Husovsky had referred Plaintiff in January 2014. (Id.) However,
Defendant did not receive any orthopedic or physiatrist records for its review (and, as a result,
none were provided to Dr. Wallquist as part of his peer review). Dr. Wallquist contacted the
office of Mr. Bowman, who advised Dr. Wallquist that, based on the results of the FCE, Plaintiff
"demonstrated the ability to lift 60-70 pounds occasionally without pain." (AR 716.) Moreover,
Mr. Bowman opined that Plaintiff "could safely engage in a medium physical demand category
for an eight hour day, lifting up to 25 to 50 pounds." (Id.)13 Defendant (and, by extension, Dr.
Wallquist) did not receive a copy of the FCE report.14

13

(Compare Dkt. No. 25, Attach. 4, at ¶ 38 [Def.'s Rule 7.1 Statement, asserting
above-stated fact and citing record evidence establishing it] with Dkt. No. 28, Attach. 1 [Plf.'s
Rule 7.1 Response, "[d]eny[ing]" fact asserted because Plaintiff "[d]isagree[s] with Mr.
Bowman's evaluation of [his] functional capacity," but failing to support denial with record
citation or to otherwise elaborate on his disagreement with the fact asserted].)
14

(Compare Dkt. No. 25, Attach. 4, at ¶ 40 [Def.'s Rule 7.1 Statement, asserting
above-stated fact and citing record evidence establishing it] with Dkt. No. 28, Attach. 1 [Plf.'s
Rule 7.1 Response, "[d]eny[ing]" fact asserted because "[a]ll records requested by Aetna were
sent multiple times," but failing to support denial with record citation or to otherwise elaborate
as to when, or the manner in which, the records at issue were provided to Defendant].)
13

In his peer review report, Dr. Wallquist summarized Plaintiff's imaging comparisons and
medical records (described above) and found that Plaintiff's medical documentation did not
support the conclusion that he was functionally impaired from being able to perform his
occupation. (AR 714-16.) More specifically, Dr. Wallquist concluded as follows:
In summary, based on review of the medical documentation
provided pertaining to the diagnosis of low back pain,
thoracolumbar scoliosis, spinal stenosis, and lumbar disk disease,
there was a lack of significant quantifiable physical examination
findings, such as range of motion measurements in degrees, gait
analysis, and detailed neurological examination to correlate with
the claimant's subjective complaints to support a functional
impairment. In addition, the diagnostic studies performed and
commented on above revealed no significant interval change
compared to previous imaging studies. The peer-to-peer
telephonic conference with Mathew Bowman, physical therapist,
indicated the claimant was capable of lifting 60-75 pounds
occasionally and could safely work in a medium physical demand
category eight hours a day. The results of the FCE would be in
complicance [sic] with the claimant's job description as a
maintenance technician specialist I for Federal Express described
as a medium to heavy physical demand category.
(AR 716.)
c.

Clinical Consultant Referral to Dr. Ferdinand Urmaza

On November 3, 2014, Defendant retained Dr. Ferdinand Urmaza, a medical doctor in
another country and not licensed to practice in the United States, to conduct a clinical consultant
referral of Plaintiff's claim file, which included the medical records report obtained as part of his
STD claim and Dr. Wallquist's peer review report. Dr. Urmaza noted that, although Plaintiff's
medical records reflected that Plaintiff had a history of scoliosis, there was "no new MRI to
determine its progression and severity," and the information about Plaintiff's FCE conveyed by
Mr. Bowman established that Plaintiff could perform his occupation. (AR 278.) Moreover, Dr.

14

Urmaza noted that a physician had previously recommended that Plaintiff undergo surgery, but
Plaintiff deferred and never underwent surgery. (Id.) Dr. Urmaza concluded that the medical
documentation then available did not support a finding that Plaintiff was unable to perform the
essential functions of his occupation as of July 22, 2014 (the date on which Plaintiff would have
been first eligible to receive LTD benefits). (Id.)
d.

Letter to Plaintiff, dated November 21, 2014

In a letter to Plaintiff dated November 21, 2014, Defendant advised Plaintiff that,
pursuant to the Plan's definition of "disability," Plaintiff was required to present "significant
objective findings" to establish that he was disabled. (AR 671 [letter to Plaintiff, dated
11/21/2014].) Moreover, Defendant noted that, in October 2014, it had requested–but had not
received–a Capabilities and Limitations Worksheet ("CLW"), an APS, a Long Term Disability
Questionnaire, Plaintiff's FCE report, and updated medical records. (Id.) Defendant explained
that it "need[s] this information to determine if you meet the definition of disability described
above." (Id.) Finally, Defendant advised Plaintiff that, "[i]f the information listed above is not
received in our office by December 15, 2014, your claim will be reviewed and the determination
will be based upon the information in our file." (Id.)
e.

Physician Review by Martin Mendelssohn, M.D.

While some of Defendant's analysts were reviewing Plaintiff's claim for LTD benefits,
other of Defendant's analysts were reviewing his appeal from the denial of his claim for STD
benefits. As part of its review of Plaintiff's STD benefits appeal, Dr. Martin Mendelssohn, M.D.,
a board certified orthopedic surgeon, performed an independent peer review of Plaintiff's
medical records and documentation to determine whether Plaintiff had a functional impairment

15

rendering him unable to perform his own occupation beginning in January 2014. (AR 769-72
[Physician Review Report of Dr. Mendelssohn, 12/10/2014].) On December 10, 2014, he
conducted a telephonic peer-to-peer review with Dr. Husovsky. (AR 771.) Dr. Mendelssohn's
review report reflects that, during the call, Dr. Husovsky stated that Plaintiff was unable to work
"because of his pain" related to his scoliosis and spinal stenosis, but Dr. Husovsky could not
"provide any evidence of any functional or neurological deficits" from which Plaintiff suffered.
(Id.) Dr. Mendelssohn concluded as follows:
Based on the available medical records, as well as a teleconference
with Dr. Husovsky, it is noted the claimant has ongoing low back
pain, which ha[s] been present for an extended period of time.
However, comprehensive history and physical examination
indicating functional or neurological deficit is not provided that
would substantiate a functional impairment for the time period
1/2/14 through 7/30/14.
(Id.)
f.

Initial Denial of Plaintiff's Claim for LTD Benefits

By letter dated December 22, 2014, Defendant advised Plaintiff that it had denied his
claim for LTD benefits for two reasons: (1) it "ha[d] not received previously requested
information necessary to [its] evaluation of [Plaintiff's] eligibility for benefits[,]" and (2) given
that Plaintiff's claim for STD benefits had been denied due to "a lack of objective clinical data to
support a functional impairment," he had not completed the "elimination period" required by the
LTD Plan (i.e., he had not been continuously disabled as of his first date absent from work).
(AR 675.)15 More specifically, the letter noted that, in its letter dated November 21, 2014,

15

Reiterating the terms of the LTD Plan, the letter explained that Plaintiff was
required to "substantiate[]" his alleged disability by "significant objective findings which are
defined as signs which are noted on a test or medical exam and which are considered significant
16

Defendant had requested that Plaintiff provide updated medical records that were needed for
reviewing his LTD claim, but that Plaintiff had not provided any additional records. (Id.)
Finally, the denial letter noted that Defendant would "review any additional information
[Plaintiff] care[d] to submit," including "a detailed narrative report for the period 1/23/2014
through present outlining the specific physical . . . limitations related to your condition that your
doctor has placed on you as far as gainful activity is concerned," as well as "diagnostic studies
conducted during the above period, such as test results, X-rays, laboratory data, and clinical
findings[.]" (Id.)
g.

Plaintiff's Appeal of the Denial of LTD Benefits

Plaintiff appealed the decision denying his claim for LTD benefits and stated, in an
Appeal Request Form, that spinal stenosis rendered him unable to return to work. (AR 751
[Appeal Request Form, dated 4/23/2015].) In the section of the form asking "[w]hat specific
aspects of [his] job [he] was unable to perform and why," Plaintiff stated, "I have to move to
different positions to find comfort. Can't stand long can't sit long [sic]." (Id.) On January 9,
2015, Plaintiff advised Aetna personnel that he would provide an FCE "sometime[] this month"
and that the "FCE DR" would complete the necessary paperwork and send it to Aetna. (AR
407.)
In support of his appeal, Plaintiff submitted an APS completed by Dr. Husovsky and a

anatomical, physiological or psychological abnormalities which can be observed apart from
[your] symptoms." (AR 675.) The letter further explained that, under the Plan, an occupational
disability "mean[s] the inability . . . because of a medically-determinable physical or functional
impairment . . . to perform the essential functions of [your] regular occupation . . . ." (Id.)
17

CLW, both dated January 26, 2015.16 (AR 752-55.) The APS reflects that Plaintiff has suffered
from "LB Pain" since January 2010, has no ability to work, and is limited to "[l]ifting 10 lbs,
pulling occasionally, occasional carrying 7 lbs, twisting 2 lbs." (AR 753.) Moreover, the APS
reflects that Dr. Husovsky prescribed these limitations on Plaintiff's work activities on January
19, 2014, that Plaintiff's estimated date for returning to work was "unknown," and that the
objective findings substantiating Plaintiff's impairments were contained in the "[f]ull FCE &
evaluation done by . . . Westside Physical PT." (Id.) In the section of the APS titled "Current
Status," Dr. Husovsky noted that Plaintiff's condition had "[s]tabilized," and that, in his opinion,
Plaintiff was not motivated to return to work. (Id.)
Plaintiff's CLW reflects the following with respect to his limitations: (1) Plaintiff can
"[o]ccasionally"climb, lift, push, pull, reach above his shoulder, carry a maximum of seven
pounds, bend, twist with a maximum of two pounds, hand grasp (both hands), firm hand grasp
(both hands), sit, stand, and walk; (2) Plaintiff can "[n]ever" crawl, kneel, perform repetitive
motion, or stoop; (3) Plaintiff cannot move his head or neck in a "[s]tatic [p]osition," perform
"[f]requent [f]lexing," or perform "[f]requent [r]otation"; and (4) Plaintiff "has to change
positions frequently and take rest periods after prolonged activities." (AR 754.) The CLW does
not provide any explanation of the tests or methods used to determine these limitations.17 Aside

16

The APS was completed and signed by Dr. Husovsky. (AR 752-53.) The CLW
was signed by Dr. Husovsky, as well as a physical therapist (whose name is difficult to
decipher). (AR 754.)
17

The Court notes that it appears that the most recent medical record contained in
the administrative record (aside from APS and CLWs requested by Defendant) is dated January
22, 2014. Moreover, the medical records do not appear to discuss any restrictions or limitations
with respect to Plaintiff's ability to move his head or neck, or to use his hands for grasping.
18

from Dr. Husovsky's reference to a "[f]ull FCE & evaluation" in his APS and the limitations set
forth in the CLW, the administrative record does not contain an FCE report or any other
documentation related to the FCE purportedly completed in January 2015.
h.

Review by Joseph Braun, M.D., J.D.

As part of Plaintiff's LTD claim appeal, Dr. Joseph Braun, who is board certified in
occupational medicine, performed an independent physician review of the medical records and
documents in Plaintiff's claim file, including records related to claims for leave filed during the
period of 2008 through 2010. (AR 703-09 [Physician Review Report of Dr. Braun].) In his
report, Dr. Braun noted that Plaintiff's "history of chronic scoliosis" and complaints of back pain
dated back to 2008, and that, in October 2009, surgical intervention (a T6-L5 decompression)
was recommended, but which Plaintiff deferred. (AR 706.) Dr. Braun reviewed Plaintiff's
medical records related to his complaints of back pain beginning in October 2013 (which
represented a "new problem" relative to Plaintiff's older complaints of back pain), as well as the
physician review reports prepared by Dr. Wallquist and Dr. Mendelssohn.18 (AR 706-07.) The
"MEDICAL ANALYSIS" section of Dr. Braun's review report states as follows:
I spoke with Dr. Husovsky on 5/22/15. He was under the
impression that the back problem had been taken care of. He states
that he only takes care of the claimant's medical problems and
doesn't evaluate his back at all any more. He also stated he does
not have any comment as to the claimant's current functional
abilities.
In summary, reliable physical findings are not seen in the notes of
the claimant's attending providers. Claimant appears to have

18

The record related to Plaintiff's visit with Dr. Husovsky on October 11, 2013,
states that the reason for Plaintiff's visit was "a new problem for chief complaint: LB Pain." (AR
825.) It is unclear what made Plaintiff's problem a "new" one relative to his medical history.
19

scoliosis which is stable. Claimant demonstrated in an FCE the
ability to do his job as described. No intervening clinical
information since then shows any change. Dr. Husovsky in a
phone discussion also stated that there had been no changes. He
felt the back situation had been resolved and did not have any
further comments as the [sic] claimant's functionality. The most
recent medication the claimant was taking appears to be an NSAID
and Cymbalta with no other treatment being seen. Surgery was
recommended but the claimant declined. Impairment is not
established by this material.
(AR 707-08.) The report also notes that, during the telephone call with Dr. Braun, Dr. Husovsky
advised Dr. Braun that he had last seen Plaintiff on March 28, 2015, and that, "[a]t that time[,]
there w[ere] no changes." (AR 708.) Based upon these considerations, Dr. Braun opined that
Plaintiff
has no proven functional impairments and has occupational
capacity for the dates in question. As was stated in the medical
analysis above, physical findings and clinical testing to support
such impairments are not found in the clinical received. The sole
exception would be the functional capacity evaluation the claimant
underwent, which I do not have a copy of. According to this, the
claimant demonstrated the ability to lift 60 to 75 pounds
occasionally and work an 8 hour day at a medium PDL. In my
opinion these numbers are only a baseline but I cannot even be
certain of this as I do not have the report showing validity testing,
etc. The claimants [sic] treatment has been very conservative
without any major interventions such as surgeries or injections,
and the only medicines seen being naproxen, Celebrex and
Cymbalta, which are not very aggressive in nature. It appears that
previous limitations/restrictions proposed by Dr. Husovsky were
mostly based on the claimant self-reports of pain and function
rather than on objective and replicable evidence. My review of the
clinical received and discussion with claimant's provider Dr.
Husovsky brings me to the conclusion that the material provided
does not include physical findings, clinical testing or functional
measurements which establish any level of impairment. Therefore
limitations, which are based on what a claimant can do in the face
of impairment are not supported. Also, no restrictions, which are
based on risk, would apply. This would include the restriction of
not working at all.
...
20

The claimant reports ongoing pain. A review of the physical
findings, clinical testing and functional measurements shows that
the claimant has a stable degenerative condition of the back along
with scoliosis. While the claimant may have some pain, evidence
to support any decrement in functionality as a result of it is not
found in my review of the clinical received. Therefore no
limitations/restrictions attach. Claimant is capable of functioning.
(AR 708-09.) Although the January 2015 APS and CLW are listed among the documents
reviewed by Dr. Braun, those records were not expressly discussed in his review report. (AR
704-05.)
i.

Denial of Plaintiff's Claim for LTD Benefits Upheld

In a letter dated July 9, 2015, Defendant advised Plaintiff that it was upholding its denial
of his claim for LTD benefits for the following reasons: (1) there was a "lack of medical
evidence to support a functional impairment" precluding him from performing his own
occupation as of his first date he sought disability leave (i.e., January 23, 2014); (2) he was not
found to be continuously disabled from work throughout the 180-day elimination period required
under the LTD Plan's terms; and (3) there was "no clinically supporting evidence to support the
restrictions and limitations previously imposed by Dr. Husovsky." (AR 697-98.)
C.

Briefing of Parties' Motions for Summary Judgment
1.

Plaintiff's Motion for Summary Judgment
a.

Plaintiff's Memorandum of Law

Generally, in support of his motion, Plaintiff argues that Defendant's denial of his claims
for benefits under the STD and LTD policies was arbitrary and capricious. (Dkt. No. 24, Attach.
2 [Plf.'s Memo. of Law].) More specifically, Plaintiff advances four arguments: (1) he provided
substantial, objective medical evidence of his disabling conditions (namely, degenerative
21

thoracolumbar scoliosis, foraminal stenosis, and central canal stenosis), and these conditions
have precluded him from performing his duties or those of any other job at his place of
employment; (2) Defendant's own clinical file review, performed by Dr. Martin Mendelssohn,
noted that Plaintiff's treating physician, Dr. Husovsky, found Plaintiff to be disabled
"indefinitely" as of January 23, 2014, due to his "persistent symptoms"; (3) Dr. Mendelssohn's
conclusion that Plaintiff's medical file did not contain a "comprehensive history and physical
examination indication [a] functional or neurological deficit . . . that would substantiate a
functional impairment for the time period . . ." was "insufficient to overturn" Dr. Husovsky's
medical diagnoses; and (4) in reaching its determination, Defendant did not adequately consider
Plaintiff's subjective complaints of pain, "advanced age," "the nature of his disability, and the
fact that he is precluded from earning a living," all of which make him "even more deserving of
disability benefits . . . than he otherwise would be." (Id. at 6-14.)19
b.

Defendant's Opposition Memorandum of Law

Generally, in opposition to Plaintiff's motion, Defendant advances nine arguments: (1)
Plaintiff's motion should be denied because his Rule 7.1 Statement does not comply with Rule
7.1(a)(3) of the Court's Local Rules of Practice; (2) in any event, to the extent that Plaintiff’s
motion seeks a judgment based on a claim that he was improperly denied STD benefits (to the
extent he asserts one), the motion must be denied because (a) his Amended Complaint–which
superseded his Complaint–does not contain a claim for recovery of such benefits, rendering this
claim waived, and (b) Defendant has not insured FedEx's STD Plan–which is now self-

19

Plaintiff also argues that Defendant's determination was "rendered after less than
a full and fair review," a conclusion that "can be gleaned by [its] baseless conclusion in light of
all the compelling of evidence of permanent disability[.]" (Dkt. No. 24, Attach. 2, at 15.)
22

funded–since mid-2015; (3) the arbitrary-and-capricious standard of review applies to Plaintiff's
claim for the wrongful denial of benefits under the LTD Plan, and Plaintiff does not argue
otherwise; (4) Plaintiff’s motion for a judgment on this claim must be denied because
Defendant's determination that Plaintiff was not "disabled" within the meaning of the LTD Plan
was reasonable, in that (a) it was supported by reports prepared by Dr. Ferdinand Urmaza, Dr.
Joseph Braun, Dr. James Wallquist, and Dr. Mendelssohn, and Plaintiff raises no argument with
respect to the conclusions reached by Drs. Urmaza, Braun, or Wallquist, (b) the results of
Plaintiff's January 2014 FCE, communicated by his physical therapist to Dr. Wallquist, did not
support a determination that Plaintiff was functionally impaired from performing his own
occupation, and (c) Defendant is not required to afford special deference to the opinion of
Plaintiff's treating physician; (5) moreover, Defendant conducted a full and fair review of his
claim, and Plaintiff has not (a) identified any evidence that was withheld from him, (b) has not
established that he was prevented from submitting material relevant to his claim, and (c) has not
identified any basis supporting the conclusion that Defendant improperly handled his claim; (6)
Defendant appropriately considered Plaintiff's subjective complaints of pain, as evidenced by the
reports prepared by Drs. Wallquist, Mendelssohn, and Braun, and properly denied his claim,
despite his subjective pain, in light of the lack of objective medical findings supporting a
functional impairment; (7) Defendant was not required to consider Plaintiff's vocational
qualifications to perform sedentary work, or his "advanced age," in rendering a determination of
his claim for benefits, because the Plan uses an "own occupation" test; (8) Plaintiff's treating
physician (Dr. Husovsky) did not provide any objective evidence related to Plaintiff's functional
or neurological impairments or functional capabilities; and (9) based on all of the foregoing

23

arguments, Defendant's decision denying Plaintiff benefits under the Plan was not arbitrary and
capricious. (Dkt. No. 29 at 6-19 [Def.'s Opp'n Memo. of Law].)
2.

Defendant's Motion for Summary Judgment
a.

Defendant's Memorandum of Law

Generally, in support of its motion, Defendant advances two arguments: (1) the LTD Plan
at issue grants the administrator discretionary authority to determine a participant's eligibility for
benefits, and the arbitrary-and-capricious standard of review therefore applies in this case; and
(2) its determination with respect to Plaintiff's LTD benefits claim was substantially supported
by the evidence, and was therefore not arbitrary and capricious, because (a) Plaintiff failed to
provide "significant objective findings" to support his claim that his back pain and conditions
render him functionally impaired from performing his own occupation as required by the LTD
Plan, (b) diagnostic imaging results submitted by Plaintiff showed no significant changes from
prior images collected approximately four to five years earlier, (c) Plaintiff's treating physician,
Dr. Husovsky, declined to comment regarding Plaintiff's functional impairments when contacted
by independent peer reviewers, and could not provide evidence of functional or neurological
deficits, (d) statements regarding Plaintiff's ability to work, contained in APSs, APRSs, and
CLWs, are conclusory and unsupported by clinical evidence or diagnostic testing, (e) an FCE
performed by Plaintiff's physical therapist was never provided to Defendant, and the physical
therapist's representations about the results of the FCE (as relayed by him to Dr. Wallquist) did
not support a finding that Plaintiff was functionally impaired from performing his own
occupation, and (f) Plaintiff's lower back pain is "described [in the record] as being mild to
moderate," rather than debilitating, and, given the lack of objective support for finding a

24

functional impairment, Defendant's treatment of Plaintiff's subjective complaints did not
constitute an abuse of discretion. (Dkt. No. 25, Attach. 3, at 13-20 [Def.'s Memo. of Law].)
b.

Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendant's motion, Plaintiff argues that Defendant's
determination denying his claim for LTD benefits was arbitrary and capricious for the following
seven reasons: (1) it is uncontested that Plaintiff's occupation requires him to "routinely lift in
excess of 100 pounds"; (2) it is uncontested that Plaintiff has been diagnosed with degenerative
spinal stenosis, with evidence of various impingements, disk extrusion, curvature of the spine,
and foraminal stenosis; (3) Defendant "ratified and is estopped from denying" that Plaintiff is
"disabled" because it notified him, on Aetna letterhead, that he was deemed "disabled" when he
applied for, and was granted, New York State disability benefits between January 30, 2014, and
July 30, 2014; (4) Plaintiff supplied Defendant with "all records that [it] requested of him," and
those records reflect that he was in "'unbearable' pain while at work" and received "significant
treatment," including spinal injections;20 (5) Defendant "admits" that Dr. Husovsky concluded
that Plaintiff was "disabled from working"; (6) the findings and conclusions of Dr. Urmaza are
an insufficient basis upon which to grant Defendant summary judgment because Dr. Urmaza is a
physician of "unknown qualifications" who practices in an unidentified country and who, in any
event, conceded that Plaintiff has a history of degenerative "chronic scoliosis"; and (7) based on
each of these arguments, as well as the medical evidence provided to Defendant in support of his

20

Although medical records refer to a treatment plan including steroid injections in
2009 (AR 811-12 [Progress Note, 1/30/2012]), it is unclear if, and when, Plaintiff actually
received a spinal injection in 2013, 2014, or 2015. Medical records also reflect that Plaintiff
received an injection in his shoulder in April 2010. (AR 842.)
25

claim, Plaintiff has been "continuously disabled" as of the first date of his absence from work
within the meaning of the LTD Plan. (Dkt. No. 28 at 9-17 [Plf.'s Opp'n Memo. of Law].)
c.

Defendant's Reply Memorandum of Law

Generally, in its reply memorandum of law, Defendant reiterates the arguments advanced
in its memorandum of law and, moreover, argues as follows: (1) Plaintiff failed to properly
respond to Defendant's Rule 7.1 Statement, and the facts asserted therein should thus be deemed
admitted; (2) where (as here) the deferential arbitrary-and-capricious standard of review applies,
a summary judgment motion is merely the conduit by which the administrator's benefits
determination is brought before a district court for review; (3) to the extent that Plaintiff attempts
to introduce evidence not contained in the administrative record (i.e., by way of his affidavit
constituting his Rule 7.1 Response and by arguing that Dr. Urmaza's qualifications and
conclusions should be introduced at a trial), he has not demonstrated good cause for expanding
the administrative record with outside information; and (4) Defendant is not estopped from
denying him benefits under the LTD Plan merely because he qualified for statutory short-term
benefits provided under the New York Workers' Compensation Law (a determination carrying
no res judicata effect with respect to his claim for ERISA benefits), and Plaintiff cites no
authority supporting his argument. (Dkt. No. 30 at 1-8 [Def.'s Reply Memo. of Law].)
II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing a Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]

26

evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).21 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a),(c),(e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
fails to respond to a motion for summary judgment, a district court has no duty to perform an
independent review of the record to find proof of a factual dispute.22
Of course, when a non-movant fails to respond to a motion for summary judgment, "[t]he
fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to

21

As a result, "[c]onclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
22

Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby,
J.) (citing cases).
27

be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as
indicated above, the Court must assure itself that, based on the undisputed material facts, the law
indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R.
7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's
burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement.23
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have "consented" to the legal arguments contained in that memorandum of law under Local
Rule 7.1(b)(3).24 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument

23

Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
24

See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
28

possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B.

Legal Standard Governing Actions Brought Under ERISA Related to a
Denial of Benefits

"It is appropriate to consider a challenge under ERISA to the denial of disability benefits
as a summary judgment motion reviewing the administrative record." Suarato v. Bldg. Servs.
32BJ Pension Fund, 554 F. Supp. 2d 399, 414-15 (S.D.N.Y. 2008) (citing Muller, 341 F.3d at
124); see also Gannon v. Aetna Life Ins. Co., 05-CV-2160, 2007 WL 2844869, at *6 (S.D.N.Y.
Sept. 28, 2007) ("[S]ummary judgment provides an appropriate vehicle whereby the Court can
apply substantive ERISA law to the administrative record."); Chitoiu v. UNUM Provident Corp.,
05-CV-8119, 2007 WL 1988406, at *3 (S.D.N.Y. July 6, 2007); Perezaj v. Bldg. Serv. 32B-J
Pension Fund, 04-CV-3768, 2005 WL 1993392, at *4 (E.D.N.Y. Aug. 17, 2005) ("A court
evaluating a fund's final decision under the arbitrary and capricious standard should therefore
grant summary judgment to the fund where there is no genuine dispute regarding whether the
decision was arbitrary and capricious.").
"ERISA does not set out the appropriate standard of review for actions under §
1132(a)(1)(B) challenging benefit eligibility determinations." Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 109 (1989). The Supreme Court has thus held "that a denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit
29

plan gives the [plan] administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan." Firestone Tire & Rubber Co., 489 U.S. at 115.
"[W]here the ERISA plan confers upon the plan administrator discretionary authority to
‘construe the terms of the plan,' the district court should review a decision by the plan
administrator under an excess of allowable discretion standard." Frommert v. Conkright, 535
F.3d 111, 119 (2d Cir. 2008) (citing Nicols v. Prudential Ins. Co. of Am., 406 F.3d 98, 108 [2d
Cir. 2005] [noting that the proper standard when a Plan vests the administrator with discretionary
authority is "abuse of discretion"]). Under such a standard, an administrator abuses its discretion
only when the administrator's actions are arbitrary and capricious. See, e.g., Guglielmi v.
Northwestern Mut. Life Ins. Co., 06-CV-3431, 2007 WL 1975480, at *4 (S.D.N.Y. July 6, 2007)
(quoting Firestone Tire & Rubber Co., 489 U.S. at 115). Since this is a "highly deferential
standard of review, an administrator's decision should only be disturbed if it is without reason,
unsupported by substantial evidence or erroneous as a matter of law, considering the relevant
factors of the decision." Guglielmi, 2007 WL 1975480, at *4 (citations and internal quotations
omitted); accord, e.g., Schussheim v. First Unum Life Ins. Co., 80 F. Supp. 3d 360, 374
(E.D.N.Y. 2015). "Substantial evidence consists of such evidence that a reasonable mind might
accept as adequate to support the conclusion reached by the [administrator and] . . . requires
more than a scintilla but less than a preponderance." Guglielmi, 2007 WL 1975480, at *4
(citation and internal quotations omitted). As a result, "[a]n administrator's decision under this
deferential standard may be upheld even when ‘there is evidence in the record . . . that would
have supported a contrary finding.'" Id. (quoting Pulvers v. First UNUM Life Ins. Co., 210 F.3d
89, 94 [2d Cir. 2000]). Furthermore, "[a] district court's review under the arbitrary and

30

capricious standard is limited to the administrative record." Id. (citation and internal quotation
omitted).
III.

ANALYSIS
A.

Whether Plaintiff Has Asserted a Claim with Respect to Defendant's Denial
of STD Benefits

After carefully considering the matter, the Court answers this question in the negative for
the reasons set forth in Defendant's opposition memorandum. (Dkt. No. 29 at 7 [Def.'s Opp'n
Memo. of Law].)
To those reasons, the Court would add only that, although Plaintiff argues (in a
conclusory manner) that Defendant's "declination of STD and LTD benefits was made in bad
faith" because he presented overwhelming evidence that he was "disabled" (Dkt. No. 28 at 8 ¶ 19
[Plf.'s Opp'n Memo. of Law]), he does not otherwise oppose Defendant's argument that Plaintiff
"does not seek STD benefits in this action" (Dkt. No. 25, Attach. 3, at 1 [Def.'s Memo. of Law]).
As discussed above in Part II.A of this Decision and Order, in this District, when a non-movant
fails to oppose a legal argument asserted by a movant, the movant's burden with regard to that
argument is lightened, such that, in order to succeed on that argument, the movant need only
show that the argument possess facial merit. The Court finds that Defendant has, at the very
least, met its modest threshold burden for the reasons set forth in its memoranda of law. In any
event, Plaintiff’s Amended Complaint, which superseded his original Complaint in all respects,
does not contain a claim related to the denial of his application for STD benefits.
Accordingly, the Court concludes that no such claim is properly before the Court.

31

B.

Whether the Arbitrary-and-Capricious Standard of Review Applies to
Plaintiff's Claim Regarding Defendant's Denial of LTD Benefits

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant's memorandum of law in chief and in its opposition
memorandum of law. (Dkt. No. 25, Attach. 3, at 13-15 [Def.'s Memo. of Law]; Dkt. No. 29 at 8
[Def.'s Opp'n Memo. of Law].)
The Court would add only that, in his memoranda of law, Plaintiff does not argue to the
contrary; rather, Plaintiff appears to concede that the arbitrary-and-capricious standard of review
applies. (Dkt. No. 24, Attach. 2, at 12-15 [Plf's Memo. of Law, arguing that Defendant's denial
of benefits was arbitrary and capricious]; Dkt. No. 28 at 11-17 [Plf.'s Opp'n Memo. of Law,
arguing that Defendant's denial of benefits was arbitrary and capricious].) As noted above, in
order to succeed on an unopposed argument, a party need only show that its argument has facial
merit. The Court finds that Defendant has, at the very least, met that burden for the reasons set
forth in its memoranda of law, as well as in light of the language of the LTD Plan set forth above
in Part I.B.3 of this Decision and Order.
C.

Whether Defendant's Denial of Plaintiff's Claim for LTD Benefits Was
Arbitrary and Capricious

After carefully considering the matter, the Court answers this question in the negative for
the reasons set forth in Defendant's memoranda of law. (Dkt. No. 25, Attach. 3, at 13-20 [Def.'s
Memo. of Law]; Dkt. No. 30 at 3-9 [Def.'s Reply Memo. of Law].) To those reasons, the Court
adds the following analysis.
As an initial matter, based upon a careful review of the parties' arguments in their
memoranda of law, the Court finds that the crux of the parties' dispute is whether Plaintiff has

32

provided "significant objective findings" supporting the assertion that he suffers from an
occupational disability (i.e., that he is prohibited from performing the "essential functions of his
regular occupation" under the terms of the LTD Plan). (AR 41.) As set forth above, Plaintiff
argues that the administrative record is replete with references to his diagnoses of degenerative
scoliosis, spinal stenosis, and canal stenosis, and that these conditions resulted in severe lower
back pain and prevented him from being able to perform the duties of a Maintenance Technician
Specialist I. In response, Defendant argues that, although Plaintiff's medical records reflected
that he suffered from ongoing lower back pain related to his diagnosed conditions, the
administrative record does not contain objective evidence substantiating Plaintiff's alleged
functional impairments.
Plaintiff correctly notes, and Defendant does not dispute, that, in addition to his
complaints of ongoing lower back pain, the record contains objective evidence of his conditions,
including x-ray and MRI examinations from as early as 2008 and 2009. (AR 812 [Progress
Note, dated 1/30/2009, noting the presence of various impingements, bulging disks, curvature of
the spine, and foraminal stenosis].) Plaintiff's point is well taken, and medical records and
diagnostic imaging support the conclusion that he suffers from scoliosis and stenosis.
Defendant's physician reviewers acknowledged that Plaintiff's medical records contained these
diagnoses, as well as Plaintiff's subjective complaints of ongoing lower back pain in relation
thereto. (AR 706-09, 714-16, 770-71.)
However, "[i]t was reasonable for [Defendant] to require objective evidence to support
h[is] alleged physical limitations," a proposition that Plaintiff does not dispute. Ianniello v.
Hartford Life and Accident Ins. Co., 10-CV-0370, 2012 WL 314872, at *3 (E.D.N.Y. Feb. 1,

33

2012) (emphasis added). The Court is sympathetic with Plaintiff's diagnosed spinal conditions;
but the Court cannot conclude that, under the circumstances, Defendant's denial of his claim for
LTD benefits was arbitrary and capricious based upon its requirement of (and request of Plaintiff
for) objective evidence substantiating Plaintiff's physical limitations caused by the undisputed
diagnoses. See, e.g., Hammonds v. Aetna Life Ins. Co., 13-CV-0310, 2015 WL 1299515, at *16
(S.D. Ohio Mar. 23, 2015) ("A lack of objective medical evidence upon which to base a treating
physician's opinion is sufficient reason for an administrator's choice not to credit that opinion. . .
. Aetna did not act arbitrarily and capriciously in relying on the opinions of the independent
reviewers that the MRI results did not provide a basis for the severe physical limitations imposed
by [plaintiff's treating physicians]."); Schlenger v. Fiedelity Emp'r Servs. Co., LLC, 785 F. Supp.
2d 317, 340 (S.D.N.Y. 2011) ("[A] distinction exists between the amount of fatigue or pain an
individual experiences, which is completely subjective, and how much an individual's degree of
pain or fatigue limits his functional capabilities, which can be objectively measured.") (quoting
Schnur v. CTC Commc'ns Corp. Grp. Disability Plan, 05-CV-3297, 2010 WL 1253481, at *14
[S.D.N.Y. Mar. 29, 2010]) (emphasis added).
As noted in the reports prepared by the physician reviewers, Dr. Husovsky's assertions in
his APSs and APRSs that Plaintiff is disabled from working, as well as the extensive physical
limitations summarily set forth therein, were not supported by reference to any particular test or
method by which Dr. Husovsky (or anyone else) reached these conclusions. (AR 752 [APS, in
which Dr. Husovsky checked the box indicating that Plaintiff has "[n]o ability to work" and
references a "[f]ull FCE + evaluation" not contained in the record].) Moreover, the physical
limitations noted in the one-page CLW completed in January 2015 were, again, set forth in a

34

summary, checkbox-based form with no accompanying explanation of the methods by which the
results were obtained (such as a more complete FCE report). (AR 754.) Notably, Defendant
attempted to obtain a copy of the January 2014 FCE report (as well as updated medical records),
but was unsuccessful.25 (AR 671 [letter to Plaintiff, informing him of the "importance of the. . .
functional capacity evaluation report . . . and update[d] medical records for claim
determination"].) See generally Brown v. Metro. Life Ins. Co., 463 F. Supp. 2d 847, 851 (N.D.
Ill. 2006) (noting that, "despite repeated requests from both her own treating physician . . . and
MetLife, Brown did not provide [a functional capacity] evaluation, a failure that in turn
contributed to MetLife's decision to terminate her benefits").26 Moreover, the Court notes that
(1) aside from these summary APS, APRS, and CLW forms, there are virtually no medical

25

See St. Onge v. Unum Life Ins. Co. of Am., 559 F. App'x 28, 30 (2d Cir. 2014)
(summary order) ("The FCE is a four-hour exam designed to predict a person's capacity for
physical exertion. . . . The test results . . . were sufficiently objective and reliable to enter into
Unum's ultimate decision."). The Court notes that Plaintiff does not point to any Plan provision
requiring Defendant to order its own FCE (or any other specific examination) when considering
a claim for benefits.
26

In Miles v. Principal Life Ins. Co., the district court held that the defendantinsurer's determination denying the plaintiff's benefits claim was not arbitrary and capricious
because (among other things) "it was not unreasonable for [defendant] to require proof of
significant impairment beyond [the attending specialist's] diagnosis" of tinnitus, a "condition that
cannot be measured objectively." 831 F. Supp. 2d 767, 777-78 (S.D.N.Y. 2011). On appeal, the
Second Circuit reversed, explaining that "[a] claimant bears the burden of proving that a
disability is covered, but plan administrators may not impose unreasonable requests for objective
evidence." Miles v. Principal Life Ins. Co., 720 F.3d 472, 488 (2d Cir. 2013). The Second
Circuit reasoned that, because "the record suggests that there is no objective test to prove the
presence of tinnitus[, i]t was unreasonable for [defendant] to request objective evidence of
impairment when it had not identified any such test that exists." Miles, 720 F.3d at 488. In this
case, Plaintiff's conditions and the functional impairments referenced in the record (including,
for example, postural limitations and the ability to lift objects) are clearly capable of objective
measurement. Accordingly, the Court finds that Defendant's request for evidence of the degree
of Plaintiff's functional impairments (including, for example, the FCE report) was not
unreasonable.
35

records in the administrative record from February 2014 and beyond, and (2) physician reports
comparing diagnostic imaging of Plaintiff's back reflect that, although Plaintiff had experienced
degenerative changes, Plaintiff had experienced no significant interval changes between
examinations in 2008-2009 and examinations in late 2013 (a period of time during much or all of
which Plaintiff was working). (AR 719-26.) In light of this combination of considerations, and
under the circumstances of this case, the Court concludes that Defendant's decision not to credit
the physical limitations summarily offered by Plaintiff's treating providers was not arbitrary and
capricious.27 See generally Kruk v. Metro. Life Ins. Co., Inc., 567 F. App'x 17, 20 (2d Cir. 2014)
(summary order) ("In deciding whether a plan administrator's discretionary decision is supported
by substantial evidence, a reviewing court cannot substitute its own judgment for the insurer as if
it were considering the issue of eligibility anew.")
For these reasons, as well as those set forth in Defendant's memoranda of law, the Court

27

As noted above, as part of his physician review, Dr. Wallquist spoke to Mr.
Bowman (the physical therapist who completed the early 2014 FCE) by telephone. (AR 716.)
Mr. Bowman told Dr. Wallquist that Plaintiff "demonstrated the ability to lift 60-70 pounds
occasionally without pain" and that Plaintiff "could safely engage in a medium physical demand
category for an eight hour day, lifting up to 25 to 50 pounds." (AR 716.) Dr. Wallquist's review
report states that "[t]he results of the FCE would be in compliance with [Plaintiff's] job
description as a maintenance technician specialist I . . . described as a medium to heavy physical
demand category." (Id.) This conclusion appears dubious because Plaintiff's job description
requires him to lift "[u]p to" 50 pounds, 100 pounds, and over 100 pounds 33 percent of the time.
(AR 865.) However, the Court does not find that remand is warranted by this possibly errant
statement. Dr. Wallquist noted that he did not have a copy of the FCE report, and cited the "lack
of significant quantifiable physical examination findings, such as range of motion measurements
in degrees, gait analysis, and detailed neurological examination" in support of his conclusion that
Plaintiff's records did not establish a functional impairment. (AR 716.) Moreover, Dr. Braun
noted in his physician review that, "[i]n [his] opinion these numbers [articulated by Mr.
Bowman] are only a baseline but I cannot even be certain of this as I do not have the report
showing validity testing, etc." (AR 708.) In sum, it does not appear that the brief opinion
conveyed by Mr. Bowman over the phone to Dr. Wallquist–again, in the absence of a full FCE
report–was a significant basis for Defendant's denial of Plaintiff's LTD claim.
36

concludes that Defendant's denial of Plaintiff's LTD benefits claim was not arbitrary or
capricious, and was supported by substantial evidence. See Hobson v. Metro. Life Ins. Co., 574
F.3d 75, 89 (2d Cir. 2009) ("[T]he question for th[e] court is not whether [Defendant] made the
'correct' decision [but] whether [it] had a reasonable basis for the decision that it made.")
(internal quotation marks omitted); Wojciechowski v. Metro. Life Ins. Co., 1 F. App'x 77, 79 (2d
Cir. 2001) (summary order) ("[O]n a motion for summary judgment, the issue is not . . . whether
an administrator was presented with conflicting evidence on matters affecting eligibility for
benefits. Rather the issue is whether the administrator's decision resolving that conflict was
arbitrary and capricious, i.e., whether there is a material issue of fact in dispute regarding the
factors considered by the administrator, and whether as a matter of law his or her decision based
on those factors constitutes a clear error of judgment.").28 Accordingly, Plaintiff's motion for
judgment on the administrative record is denied, and Defendant's motion for summary judgment
is granted.29

28

With respect to Plaintiff's argument that Defendant's determination was "rendered
after less than a full and fair review" (Dkt. No. 24, Attach. 2, at 15), the Court notes that Plaintiff
does not argue that Defendant (1) failed to consider any particular piece of evidence (or that it
considered evidence that it should not have), (2) withheld any evidence from him, (3) failed to
follow any particular policy or procedure with respect to its review of his claim, (4) did not
adequately notify him of any shortcomings in the documentation he provided in support of his
claim, or (5) did not provide him a reasonable opportunity to provide additional documentation
in support of his claim. See Juliano v. Health Maint. Org. of New Jersey, Inc., 221 F.3d 279,
287 (2d Cir. 2000) ("The purpose of [the 'full and fair review'] requirement is to provide
claimants with enough information to prepare adequately for further administrative review or an
appeal to the federal courts.") (internal quotation marks omitted). The Court therefore finds
Plaintiff's argument to be lacking in merit.
29

In reaching this conclusion, the Court is mindful that "a plan under which an
administrator both evaluates and pays benefits claims creates the kind of conflict of interest that
courts must take into account and weigh as a factor in determining whether there was an abuse of
discretion[.]" McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008) (citing
37

ACCORDINGLY, it is
ORDERED that Plaintiff's motion for judgment on the administrative record (Dkt. No.
24) is DENIED; and it is further
ORDERED that Defendant's motion for summary judgment (Dkt. No. 25) is
GRANTED; and it is further
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6) is DISMISSED in its
entirety.
Dated: July 14, 2017
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112 [2008]). In this case, although Defendant was
the claims-paying administrator of the LTD Plan, Plaintiff does not argue that the denial of his
claim for LTD benefits was the result of a conflict of interest on Defendant's part, and the
administrative record does not suggest that it was the result of such a conflict of interest.
38