Doe v. UNUM Life Insurance Company Of America
Filing
88
MEMORANDUM OPINION: The foregoing constitute the Court's findings of fact and conclusions of law. This Court concludes that plaintiff has met his burden to show that he is disabled under the Plan. Settle judgment on notice. (As is further set forth in this Order.) (Signed by Judge Lewis A. Kaplan on 7/9/2015) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------x
JOHN DOE,
Plaintiff,
-against-
12-cv-9327 (LAK)
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant.
-----------------------------------------x
MEMORANDUM OPINION
Appearances:
Scott M. Reimer
REIMER & ASSOCIATES LLP
Attorney for Plaintiff
Patrick W. Begos
BEGOS BROWN & GREEN LLP
Attorney for Defendant
LEWIS A. KAPLAN, District Judge.
Plaintiff alleges that he wrongfully was denied long-term disability benefits by Unum
Life Insurance Company of America (“Unum”) in violation of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. The matter now is before the Court
following a bench trial on a stipulated record.1
1
See Stip. and Order Regarding Bench Trial (Feb. 19, 2014) [DI 69].
The stipulated record consists of Unum’s claim file (Ex. A), raw test data received by Unum
2
I.
Background
Plaintiff began working in June 2006 as a partner in the financial restructuring group
of a major law firm.2 As a benefit of employment, plaintiff was covered under the terms of the
firm’s long-term disability plan (the “Plan”) issued by Unum.
In early 2009, plaintiff sought treatment from Dr. Eric Hollander for mild anxiety
related to his firm’s restructuring practice and the departure of his chief client.3 Plaintiff attended
therapy sessions for several months and by August 2009 believed that his anxiety issues were
sufficiently resolved.4 In October 2009, however, plaintiff’s wife was diagnosed with breast cancer
and they were facing serious marital problems.5 Plaintiff took a leave of absence from the firm to
assist in his wife’s treatment and to prevent, in his words, “the possible demise of my marriage.”6
Plaintiff returned to Dr. Hollander in February 2010. This time, Dr. Hollander noted
potentially debilitating psychological symptoms and immediately commenced pharmacological
(Ex. B), the long-term disability plan (Ex. C), the Social Security Administration’s claim
file (Ex. D), and the Social Security Administration’s September 16, 2013 Notice of
Decision (Ex. E). References to the stipulated record include the exhibit and bates-stamp
numbers.
2
Ex. A at 1309.
3
Id. at 744, 1309.
4
Id. at 1310.
5
Id.
6
Id. at 420, 1310.
3
treatment.7 Plaintiff returned to work in March 2010 while still under Dr. Hollander’s care.8 A few
months later, however, plaintiff was informed that he was not producing significant billable hours
and that he should consider alternate employment.9 Plaintiff acknowledged his difficulties, informed
the firm of his medical problems, and stated that he would undergo neuropsychological testing and
resign if the results demonstrated that he was unable to work.10
After undergoing psychological and neuropsychological testing, Dr. Hollander
diagnosed plaintiff with major depression, obsessive compulsive disorder (OCD), attention deficit
hyperactive disorder (ADHD), obsessive compulsive personality disorder (OCPD), and
Asperberger’s syndrome. Dr. Hollander advised plaintiff to discontinue work on October 28, 2010,
and plaintiff has not worked in any capacity since that date.11
7
Id. at 612.
8
Id. at 1311.
9
Id. at 543-44, 1298.
10
Id. at 543, 1298.
11
Id. at 612, 746, 1053-54.
4
On December 3, 2010, Plaintiff submitted a claim for long-term disability benefits
under the Plan.12 Unum denied the claim on November 17, 2011.13 Unum twice denied plaintiff’s
appeal of that determination, and this litigation followed.14
II.
Standard of Review
A beneficiary of an ERISA plan may bring a civil action “to recover benefits due to
him under the terms of his plan, or to clarify his rights to future benefits under the terms of the
plan.”15 While ERISA does not define the standard of review in such cases, the Supreme Court has
held that review of a decision to deny ERISA benefits presumptively is de novo.16 Moreover, the
parties have stipulated that de novo review applies here.17 Accordingly, “[u]pon de novo review, a
12
Id. at 66-93.
13
Id. at 1098-1107.
14
Id. at 1764-72, 1894-98.
15
29 U.S.C. § 1132(a)(1)(B).
16
See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (holding that a
challenge to a denial of benefits “is to be reviewed under a de novo standard unless the
benefit plan gives the administrator of fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan”).
17
Stip. Regarding Standard of Review (Oct. 16, 2013) [DI 53].
5
district court may render a determination on a claim without deferring to an administrator’s
evaluation of the evidence.”18 In short, this Court acts as the finder of fact.19
The Second Circuit repeatedly has held that “as a matter of general insurance law,
the insured has the burden of proving that a benefit is covered.”20 Plaintiff therefore must prove by
a preponderance of the evidence that he was “disabled” as defined by the Plan and therefore entitled
to benefits.21
III.
Facts
1.
The Plan
The Plan defines disability as follows:
“You are disabled when Unum determines that:
- you are limited from performing the material and substantial duties of your
regular occupation due to your sickness or injury; and
- you have a 20% or more loss in your indexed monthly earnings due to the same
sickness or injury.”22
18
Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 296 (2d Cir. 2004).
19
See Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003) (recognizing the
appropriateness of a bench trial “on the papers” with the district court acting as the finder
of fact).
20
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 765 (2d Cir. 2002).
21
See Paese v. Hartford Life & Accidence Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006) (“At the
outset of its analysis, [the court] clearly and correctly stated that [the claimant] has the
burden of proving by a preponderance of the evidence that he is totally disabled within the
meaning of the plan.” (internal quotation marks omitted)).
22
Ex. C. at Policy 019.
6
“Regular occupation” is defined as“your specialty in the practice of law which you are routinely
performing when your disability begins. Unum will look at your occupation as it is normally
performed in the national economy, instead of how the work tasks are performed for a specific
employer or at a specific location.”23 Additionally, “[t]he lifetime cumulative maximum benefit
period for all disabilities due to mental illness and disabilities based primarily on self-reported
symptoms is 24 months.”24
2.
Duties of Plaintiff’s Occupation
The parties generally agree as to plaintiff’s duties as a litigation partner with a
specialty in bankruptcy law. Unum’s internal vocational rehabilitation consultant, Laura Feeney,
identified, among other things, the following material and substantial duties of plaintiff’s
occupation: Works directly with and represents plaintiffs or defendants to bring or pursue a lawsuit,
gathers evidence, conducts research, interviews clients and witnesses, prepares legal briefs,
represents client in court and before quasi-judicial administrative agencies of government, generates
business for firm, and supervises associates and staff.25 Ms. Feeney noted also that plaintiff’s job
demanded frequent use of short-term and long-term memory, sustained concentration and
23
Id. at Policy 042.
24
Id. at Policy 030.
25
Ex. A at 1014.
7
persistence, interaction with public and peers, frequent adaptations to change, and making judgments
and decisions.26
Plaintiff underwent also a vocational assessment with Kathryn Reid, the conclusions
of which were consistent with the aforementioned duties and responsibilities.27
3.
Plaintiff’s Medical Records
A.
Dr. Hollander
On January 28, 2009, plaintiff first presented to Eric M. Hollander, M.D., a boardcertified psychiatrist and director of the Autism and Obsessive-Compulsive Spectrum Program at
Albert Einstein College of Medicine and Montefiore Medical Center.28 Dr. Hollander treated
plaintiff for “mild anxiety related to his firm’s restructuring practice and the departure of his chief
client.”29 Treatment consisted of therapy sessions once or twice a month between January and
May 2009 and one additional time in August 2009.30
No medication was necessary and
Dr. Hollander concluded that talk therapy sufficiently resolved plaintiff’s concerns.31
26
Id. at 1015.
27
Id. at 1294-1307.
28
Id. at 70, 1240-41, 1309.
29
Id. at 744.
30
Id. at 561 (noting plaintiff’s visits to Dr. Hollander on 1/28/09, 2/23/09, 2/25/09, 3/19/09,
3/26/09, 4/16/09, 5/14/09, and 8/18/09), 744.
31
Id. at 612, 744, 1068.
8
On February 23, 2010 – more than six months after his last visit – plaintiff returned
to Dr. Hollander during the leave of absence he undertook as a result of his wife’s medical
condition. Dr. Hollander observed “potentially debilitating conditions, including depression,
obsessive compulsive disorder (OCD), attention deficit hyperactive disorder (ADHD), and obsessive
compulsive personality disorder (OCPD).”32 Dr. Hollander immediately prescribed Lexapro, a
selective serotonin reuptake inhibitor, for the treatment of depression.33
On September 16, 2010, Dr. Hollander referred plaintiff to Dr. Concetta DeCaria for
neuropsychological testing.34 Dr. Hollander concluded that the testing results confirmed “severe
depression, OCD, ADHD, and OCPD and indicate[d] that [plaintiff] also has substantial and
clinically meaningful cognitive deficits in executive functioning, processing speed, memory,
shifting, and features of an autism spectrum disorder.”35 Dr. Hollander then prescribed Vyvanse,
a central nervous system stimulant which is indicated for the treatment of ADHD; treatment through
neurocognitive support, behavior therapy, and Lexapro continued as well.36
On October 28, 2010, Dr. Hollander advised plaintiff to discontinue work because,
in his opinion, plaintiff was unable to work full-time in his prior occupation.37 He reported that
32
Id. at 612.
33
Id. at 612, 1069, 1236.
34
Id. at 1069.
35
Id. at 612.
36
Id. at 70, 612, 1236.
37
Id. at 612, 744-45.
9
plaintiff spent “hours ruminating, list-making, researching, seeking validation on a specific topic”
and that his “compulsion is enough to exhaust him (he often sleeps in excess of 12 hours per day).”38
Dr. Hollander concluded as well that plaintiff could not properly regulate his behavior, remain
attentive, or perform executive functions, resulting in an inability to work as a law firm partner,
“which requires all of these abilities for long hours and under high stress.”39 Dr. Hollander opined
that although the “present severe and debilitating symptoms of these conditions did not emerge until
2010,” plaintiff’s conditions likely have been lifelong but remained latent.40
As of July 2012, Dr. Hollander reported that plaintiff “ha[d] made some progress
through psychotherapy in accepting and understanding his conditions,” but had become increasingly
depressed.41 In fact, Dr. Hollander noted that, “[a]t times[,] [plaintiff’s] lack of energy and lack of
motivation render[ed] him unable to perform even basic self-care such that he require[d] supervision
by his wife.”42
B.
Dr. DeCaria
As mentioned above, Dr. Hollander referred plaintiff to Concetta M. DeCaria, Ph.D.
– a clinical neuropsychologist and assistant clinical professor of psychology at Mount Sinai School
38
Id. at 746.
39
Id. at 745.
40
Id. at 1237.
41
Id. at 1378.
42
Id.
10
of Medicine – for a psychological and neuropsychological evaluation.43 Dr. DeCaria’s evaluation
consisted of a series of behavioral questionnaires, cognitive tests, and interviews with plaintiff and
his wife.44 Dr. DeCaria concluded that plaintiff exhibited superior cognitive function and scholastic
abilities, but a slow processing speed, compromised rule learning and inhibition of impulses, and
cognitive flexibility difficulties, consistent with ADHD.45 Moreover, plaintiff exhibited symptoms
of a personality disorder, in conjunction with prominent anger, anxiety, depressed mood, negative
self-image, and unproductive rumination.46 Dr. DeCaria noted that a malingering probability
assessment revealed a low likelihood of exaggerated symptom endorsement or false claims of
symptomatic distress.47 In the last analysis, Dr. DeCaria concluded that plaintiff’s symptoms were
consistent with OCD, ADHD, depression, and OCPD, and that these symptoms worsened
significantly due to recent life stressors, such as plaintiff’s wife’s medical problems.48 Dr. DeCaria
agreed with Dr. Hollander that plaintiff could not practice law because he had a “limited capacity
for working the long hours required, managing high levels of stress, enduring prolonged periods of
focus and concentration, generating substantial preparatory work and billing, engaging in very short
43
Id. at 1069, 1230.
44
Id. at 420-28.
45
Id. at 422-26.
46
Id. at 425.
47
Id. at 426.
48
Id. at 426-27.
11
deadlines, [and] producing prompt action,” which prevent plaintiff from generating business efforts
and successes.49
4.
Unum’s Reviewers
Plaintiff’s claim initially was denied on the basis of a personal interview with
plaintiff and file reviews by three of Unum’s internal medical consultants.
A.
Mr. Lippel
On February 16, 2011, Marc Lippel conducted a “field referral,” or personal
interview, to clarify certain information regarding plaintiff’s medical treatment and employment.50
Plaintiff stated that he suffered from “excessive sleeping (13-14 hours per day . . .), frequent
obsessive rituals (lists, moving/shifting furniture, making purchase decisions . . . ), depression and
anxiety.”51 Plaintiff showed Mr. Lippel some of his “ritual lists” and stated that he “would usually
erase the list and redo a similar list. His compulsive rituals are ongoing throughout the day with his
thought process racing.”52 Mr. Lippel observed that plaintiff would “ramble on and stray off topic,”
but that he appeared “alert, energetic, upbeat, oriented, articulate, and intelligent.”53 Additionally,
49
Id. at 428.
50
Id. at 538-59.
51
Id. at 554.
52
Id. at 548.
53
Id.
12
Mr. Lippel stated that plaintiff did not exhibit “signs of depression or anxiety,” a conclusion that
appears to have been based on the fact that plaintiff did not become emotional or tearful during the
interview.54 Finally, Mr. Lippel stated that he would “defer to medical to determine the severity of
the claimant’s impairments and clarify if the claimant has any barriers that preclude him from
working in his occupation.”55
B.
Dr. Black
F. William Black, Ph.D., a medical consultant for Unum specializing in
neuropsychology, reviewed Dr. DeCaria’s neuropsychological evaluation and Dr. Hollander’s
psychiatric treatment report.56 Dr. Black stated that the neuropsychological evaluation was
“reasonably appropriate to the presenting problems (ADHD and personality issues)” and the “tests
were appropriately administered and scored.”57 Dr. Black concluded that “[t]he personality data is
not inconsistent with the diagnoses opined by the [attending] psychiatrist and neuropsychologist”
and those tests “suggest a [behavioral] condition with rather pervasive distress.”58 However,
Dr. Black opined that the self-reports of emotional symptoms were “over-endorsed,” such that he
54
Id.
55
Id. at 558-59.
56
Id. at 642-46.
57
Id. at 644.
58
Id. at 644-45.
13
was unable to define the nature and degree of a behavioral condition.59 He therefore concluded that
the test results did not warrant a conclusion that plaintiff was “not capable of performing executive
functions.”60
C.
Dr. Kletti
Nicholas B. Kletti, M.D., a medical consultant for Unum and board certified in
psychiatry, also reviewed plaintiff’s file.61 Dr. Kletti noted that Dr. Hollander “did not provide[]
progress notes for review” and that there was “no documentation as to specific functional details of
occupational or non-occupational performance problems.”62 Additionally, Dr. Kletti opined that
plaintiff’s reports of his symptoms appeared inconsistent with his success as a high-earning attorney,
which were “unnoticed by employer other than their concerns as to poor productivity at work.”63
Dr. Kletti concluded that there was not sufficient file documentation to support psychiatric
impairment.64
59
Id. at 645, 1028.
60
Id. at 645.
61
Id. at 682-89.
62
Id. at 688.
63
Id. at 1081; see also 688-89.
64
Id. at 689.
14
D.
Dr. Caruso
Keith A. Caruso, M.D., a medical consultant for Unum and board certified in
psychiatry, concluded that “these facts are consistent with psychiatric symptoms”, but the records
were “not sufficiently documented as a source of a loss of ability to function in the claimant’s
occupational capacity.”65 Dr. Caruso claimed that Dr. Hollander did “not provide[] standard,
accepted medical evidence to support a psychiatrically impairing condition that would preclude
work.”66 Dr. Caruso opined that bi-weekly psychotherapy and treatment with Lexapro and Vyvanse
“suggests a relatively mild condition.”67 Finally, Dr. Caruso noted that most of the mental illnesses
with which plaintiff recently received diagnoses would be expected to arise in adolescence and it
was difficult to understand why plaintiffs’ symptoms would not have been apparent earlier.68
5.
Administrative Appeal
A.
2012 Neuropsychological Evaluation
In 2012, plaintiff underwent a second neuropsychological evaluation, during his
administrative appeal, with George J. Carnevale, Ph.D, a clinical neuropsychologist.69 Dr. Carnevale
observed that plaintiff “has a disordered communication style and it was difficult[] at times to follow
65
Id. at 783.
66
Id.
67
Id.
68
Id.
69
Id. at 1197-1205.
15
his train of thought.”70 Plaintiff’s symptoms indicated moderate to severe depression, including
reported “indecisiveness, loss of interest in previously pleasurable activities, decreased energy,
changes in sleep pattern, irritability, concentration difficulty, and fatigue.”71 Dr. Carnevale observed
also that plaintiff suffered from “an overcompensating personality-style with obsessive compulsive
features,” OCPD and ADHD.72 Results of the “gold standard test of possible malingering” presented
no evidence of malingering or exaggeration.73 Moreover, Dr. Carnevale endorsed Dr. DeCaria’s
neuropsychological data as an accurate reflection of plaintiff’s cognitive and psychological
functioning.74 Dr. Carnevale concluded that plaintiff would be unable to perform complex cognitive
tasks requiring sustained mental control, divided attention, flexible problem-solving, and decisionmaking, therefore precluding plaintiff from performing his occupational duties.75
B.
Unum’s Reviewers
In the course of plaintiff’s administrative appeal, Unum sent plaintiff’s file to three
additional reviewers.
70
Id. at 1200.
71
Id. at 1202.
72
Id. at 1202-04.
73
Id. at 1203.
74
Id.
75
Id. at 1204.
16
i.
Dr. Zimmerman
Jana Zimmerman, Ph.D., an Unum medical consultant specializing in
neuropsychology, noted that several of the neuropsychological “scores related to feigning of
emotional distress and psychopathology were within normal limits.”76 Dr. Zimmerman claimed,
however, that Dr. DeCaria’s MMPI-2 validity scores “indicated exaggeration of psychopathology.”77
Dr. Zimmerman noted also that plaintiff’s clinical profile appeared to be “floridly
symptomatic,” but that his mental status was normal in an annual medical exam five days later.78
That observation appears to have been patently inaccurate. The report from plaintiff’s annual exam
with his primary care physician specifically noted that plaintiff was suffering from “obsessive
compulsive personality disorder - goes to therapy” and that plaintiff was taking Lexapro.79
Dr. Zimmerman ultimately concluded that there was no evidence of disabling impairment in
plaintiff’s cognitive capabilities.80
76
Id. at 1444.
77
Id.
78
Id. at 1444-45.
79
Id. at 523.
80
Id. at 1445.
17
ii.
Dr. Brown
Unum requested that Peter Brown, M.D., board certified in psychiatry, also review
the evidence.81 Dr. Brown noted that plaintiff’s treatment consisted of “low-dose psychotropic
medication and psychotherapy” and that “medication treatment has been apparently limited by
marked sensitivity/intolerance to . . . side effects and partial compliance.”82 Dr. Brown observed that
there was an apparent “inconsistency between the claimant’s previous history of academic and
professional success over several decades and the assertion of a severe lifelong condition.”83
Relying on Dr. Zimmerman’s report, Dr. Brown assumed that the clinical results should be
understood “as the result of lack of effort.”84 Ultimately, Dr. Brown concluded that plaintiff did not
suffer from psychiatric illness resulting in functional limitations.85
iii.
Dr. Delaney
Finally, Richard C. Delaney, Ph.D., a clinical neuropsychologist and the only Unum
reviewer who maintains an independent practice and does not work directly for Unum, reviewed
plaintiff’s claim.86 Dr. Delaney observed that plaintiff’s neuropsychological results demonstrated
81
Id. at 1452-59.
82
Id. at 1458.
83
Id.
84
Id.
85
Id. at 1459.
86
Id. at 1745-52.
18
a very high intellectual level with low performance on very few measures.87 In contrast to several
of Unum’s internal medical consultants, Dr. Delaney did not find any evidence for malingering and
concluded that plaintiff was “trying to do at least reasonably well on testing.”88 Dr. Delaney
observed consistent reports by plaintiff and corroborating impressions by his wife of “not only
complaints associated with ADD[,] but features of severe depression, moderate anxiety, and features
of obsessive-compulsive personality and disorder.”89
While Dr. Delaney did not observe
neuropsychological impairment, he concluded that there was evidence of a previously undiagnosed
chronic personality disorder with secondary depressive reaction and features of anxiety.90
Dr. Delaney noted that “symptoms can wax and wane with stressors,” but did not find in the record
“a point at which he became impaired such that he could not function.”91
6.
Social Security Determination
On September 16, 2013, the Social Security Administration (“SSA”) notified plaintiff
that his claim for disability benefits was approved.92 In its Notice of Decision, the ALJ noted his
personal observations of plaintiff:
87
Id. at 1746-47.
88
Id. at 1752.
89
Id. at 1747.
90
Id. at 1747-50.
91
Id. at 1750.
92
See Ex. E.
19
“At the hearing, it was very apparent that the claimant was having serious problems
with his mental function consistent with the medical records. He appeared to be
having difficulty formulating his answers. He had to look at his attorney before
answering even the most fundamental of questions and his attorney had to instruct
him to look at me when answering my questions. He had a very flat affect and
almost no ability to interact.”93
The ALJ concluded that plaintiff suffers from OCD, ADHD, OCPD, major depressive disorder, and
features of an autism spectrum disorder, and that he had been disabled under the terms of the SSA
since October 27, 2010.94
IV.
Discussion
The stipulated record amounts to a conflict between plaintiff’s treating providers and
Unum’s file reviewers. Plaintiff and his providers contend that serious stressors in late-2009 – his
wife’s cancer diagnosis, their marriage crisis, and career difficulties – exerted a heavy psychological
toll and brought to the forefront previously undiagnosed psychiatric conditions, ultimately rendering
plaintiff unable to perform the material and substantial duties of his job.95 Unum paints a very
different picture. It claims that plaintiff exaggerated, or invented, his psychiatric symptoms when
faced with the reality that he was failing at his job and would soon be terminated.96
Of course, the fact that plaintiff was suffering work-performance issues does not
resolve whether those issues were related to plaintiff’s claimed medical conditions. It is, at least in
93
Id. at SSA-343.
94
Id. at SSA-341-343.
95
See, e.g., Ex. A at 744-45.
96
Unum Opening Trial Br. (“Unum Br.”) (under seal) at 23.
20
some ways, a classic chicken-or-egg problem: Did plaintiff’s psychiatric conditions lead to poor
business origination and a threat of termination? Or did the threat of termination lead plaintiff to
invent or exaggerate his symptoms and claimed disability?
After a careful review of the stipulated record, this Court finds that plaintiff has
demonstrated by a preponderance of the evidence that he is disabled, as defined by the Plan.
This Court finds the opinions of Dr. Hollander “reliable and probative.”97
Dr. Hollander is a board-certified psychiatrist and director of the Autism and Obsessive-Compulsive
Spectrum Program at Albert Einstein College of Medicine and Montefiore Medical Center.98
Accordingly, Dr. Hollander’s expertise lies in several of the specific psychiatric conditions with
which he diagnosed plaintiff. Over the course of several years of treatment, Dr. Hollander observed
plaintiff’s communication problems, dictatorial behavior, rigidity, and provocative action.99 Those
observations are consistent with those of the ALJ who, after observing plaintiff at the SSA hearing,
concluded that plaintiff had difficulty formulating answers and almost no ability to interact.100
Moreover, plaintiff consistently complained to Dr. Hollander of compulsive list-writing, resulting
97
Paese v. Hartford Life and Acc. Ins. Co., 449 F.3d 435, 442 (recognizing that a court may
evaluate and give appropriate weight to a treating physician’s conclusions if it finds the
opinions reliable and probative).
98
Ex. A at 70, 1240-41, 1309.
99
Id. at 1069-70.
100
Ex. E at SSA-343.
21
in “losing days.”101 Those reports are corroborated by plaintiff’s interview with Mr. Lippel, who
noted that he observed some of plaintiff’s “ritual lists.”102
While it is true that much of the information Dr. Hollander relied on was presented
to him by plaintiff’s subjective report of his symptoms, that is an important source of evidence in
determining disability.103 Dr. Hollander’s conclusions are corroborated by other sources as well.
Specifically, the neuropsychological testing demonstrated symptoms consistent with a personality
disorder in conjunction with prominent anger, anxiety, depressed mood, negative self-image, and
unproductive rumination.104 Dr. DeCaria concluded that plaintiff’s symptoms were consistent with
OCD, ADHD, depression, and OCPD.105 Similarly, Dr. Carnevale observed that plaintiff suffered
from “an overcompensating personality-style with obsessive compulsive features,” OCPD and
ADHD.106
Unum makes three principal arguments to support its decision to deny plaintiff’s
long-term disability benefits.
101
Ex. A at 1069.
102
Id. at 548.
103
See Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013) (“[S]ubjective
complaints of disabling conditions are not merely evidence of a disability, but are an
important factor to be considered in determining disability.” (internal quotation marks
omitted)).
104
Ex. A at 426.
105
Id. at 426-27.
106
Id. at 1202-04.
22
First, Unum contends that plaintiff’s highly successful legal career undercuts his
diagnoses because these illnesses typically (or must) begin in adolescence or early adulthood.107
In other words, Unum and its medical reviewers question the likelihood that plaintiff could have
functioned as a highly successful lawyer for many years without anyone noticing that he suffered
from ADHD, OCD, or OCPD. Nevertheless, it seems entirely possible that someone with superior
intelligence could excel in school and in a career for quite some time despite inattentiveness or
hyperactive-impulsive symptoms. And Dr. DeCaria noted that, at least for a time, plaintiff’s
“compulsive style ha[d] been an asset to his academic and vocational development.”108
Additionally, Unum’s own medical reviewer, Dr. Delaney, concluded that plaintiff suffers from a
previously undiagnosed chronic personality disorder.109
Accordingly, this Court credits
Dr. Hollander’s opinion that plaintiff’s conditions likely have been lifelong but remained latent until
his debilitating symptoms emerged in 2010.110
Second, Unum criticizes Dr. Hollander for providing a summary of plaintiff’s
treatment instead of the complete office visit notes.111 It appears that Unum’s psychiatric consultants
– Drs. Kletti, Caruso, and Brown – based their conclusions, at least in part, on the fact that they had
107
Unum Br. at 20-21.
108
Ex. A at 420.
109
Id. at 1747-50.
110
Id. at 1237.
111
Unum Br. at 21-22.
23
not received such documentation.112 But this is a problem of Unum’s own making. On February 25,
2011, Unum wrote to plaintiff and stated the following: “If Dr. Hollander will not be providing us
copies of your medical records, we will require a summary of care letter from Dr. Hollander which
will need to include the dates you received treatment . . . and the conditions for you which you
received treatment for on each appointment date.”113 In short, Unum agreed to accept a summary
of care letter in lieu of the original medical records, but then justified its decision to deny plaintiff’s
benefits, at least in part, on the ground that Dr. Hollander did not provide those medical records.
Such a tactic is petty, if not blatantly deceptive. Moreover, this Court has received more than
sufficient documentation from Dr. Hollander to credit his medical opinion.114
Third, Unum claims that the neuropsychological testing did not provide evidence of
plaintiff’s disability.115 This argument rests on the opinions of Unum’s own medical consultants
who suggested that plaintiff was exaggerating his symptoms or possibly malingering. Dr. Black,
for example, concluded that “[t]he personality data appears to reflect an over-endorsement of
emotional distress,” rendering it “impossible to clearly define the nature and degree” of plaintiff’s
condition.116 Dr. Zimmerman similarly observed that the “validity scores indicated exaggeration of
112
See Ex. A at 688 (Dr. Kletti noted a lack of documentation for Dr. Hollander’s conclusions);
id. at 783 (Dr. Caruso concluded that Dr. Hollander “has not provided standard, accepted
medical evidence to support a psychiatrically impairing condition that would preclude
work”).
113
Ex. A at 582.
114
Id. at 70-71, 612, 744-47, 1068-71, 1235-39, 1377-78.
115
Unum Br. at 23.
116
Ex. A at 644-45.
24
psychopathology” and claimed a “need to rule out possible malingered neurocognitive
dysfunction.”117 But Unum’s only relatively independent medical reviewer, Dr. Delaney, concluded
just the opposite. He stated that there “[wa]s no evidence for malingering” and that, in his opinion,
plaintiff “was generally trying to do at least reasonably well on testing.”118 Dr. Delaney ultimately
concluded that the personality tests were valid.119
His opinion is consistent with those of
Drs. DeCaria and Carnevale, who separately concluded – based on objective tests designed to
identify exaggeration – that the personality results reflected psychopathologically significant clinical
findings, rather than malingering.120 Accordingly, the neuropsychological results are valid.
The Court has reviewed each of Unum’s other arguments and finds them to be
without merit. In the last analysis, this Court credits Dr. Hollander’s opinion that plaintiff is
suffering from psychiatric conditions and that he is unable to properly regulate his behavior, remain
attentive, or perform executive functions, resulting in an inability to work as a litigation partner with
a specialty in bankruptcy law.121 Moreover, there is no genuine dispute that plaintiff has had a loss
of 20 percent or more of his indexed monthly earnings, as he has not worked since October 28,
2010.122
117
Id. at 1444-45.
118
Id. at 1752.
119
Id.
120
Id. at 426, 798, 1203.
121
Id. at 745.
122
See Ex. E at 341, 1053-54.
25
Conclusion
The foregoing constitute the Court’s findings of fact and conclusions of law. This
Court concludes that plaintiff has met his burden to show that he is disabled under the Plan. Settle
judgment on notice.
SO ORDERED.
Dated:
July 9, 2015
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