Correia v. UNUM Life Insurance Company of America
Filing
121
OPINION AND ORDER: Having considered the full record, including certain additional exhibits submitted by the parties, the Court concludes that Plaintiff failed to meet her burden to show that she had an organically- or physically-based disability un der Unums Long Term Disability Plan, and that Unums denial of benefits was not arbitrary and capricious. Accordingly, Plaintiffs motion is DENIED and Defendants motion is GRANTED. Judgment will be entered in favor of Defendants. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 9/29/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
ANDREIA CORREIA,
:
:
:
Plaintiff,
:
:
v.
:
UNUM LIFE INSURANCE COMPANY OF
:
:
AMERICA, TIME WARNER, INC., and
:
TIME WARNER, INC. LONG-TERM
:
DISABILITY PLAN,
:
Defendants. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 29, 2016
______________
14 Civ. 7690 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Andreia Correia alleges that Defendants Unum Life Insurance
Company of America (“Unum”), Time Warner, Inc. (“Time Warner”), and the
Time Warner, Inc. Long-Term Disability Plan (the “Plan,” and collectively,
“Defendants”) 1 improperly denied her claim for long-term disability benefits, in
violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001-1191c, 1202-1242, 1301-1461. Plaintiff applied for, and now
seeks to recover, benefits for a cognitive dysfunction rooted in an organic or
physical etiology (i.e., a cause not attributable to mental illness). Defendant
1
Plaintiff originally named the Time Warner, Inc. Short-Term Disability Program as a
fourth defendant, but the parties advised the Court in September 2015 that they had
settled Plaintiff’s short-term disability claims, and the Court subsequently endorsed a
stipulation of dismissal to that effect. (Dkt. #105). The Clerk of Court is directed to
amend the caption accordingly.
Unum, administrator of the Plan, denied Plaintiff’s request for benefits, and
affirmed the denial of benefits upon appeal.
Plaintiff filed suit on March 12, 2014, and both parties consented to a
bench trial on the papers under Rule 52 of the Federal Rules of Civil Procedure.
This Opinion and Order constitutes the Court’s findings of fact and conclusions
of law pursuant to Fed. R. Civ. P. 52(a)(1). As set forth in the remainder of this
Opinion, the Court finds that Unum’s denial of Plaintiff’s long-term disability
benefits claim was not arbitrary and capricious, and, further, that Plaintiff did
not meet her burden to show that she was entitled to such benefits. It will
therefore enter judgment in favor of Defendants.
A.
The Court’s Findings of Fact 2
1.
Overview
From 2001 until her departure on disability leave in May 2012, Plaintiff
worked for Time Warner, through which she received short- and long-term
disability coverage. When she left Time Warner, Plaintiff worked as a Senior
Programmer Analyst, a role in which she “assist[ed] in the planning, design and
development of application requirements,” and which required that she
“[w]ork[] at the highest level of all technical phases of programming.” (LTD
Cl. 809). Plaintiff was required, inter alia, to “[p]articipate[] in feasibility
2
The facts herein are drawn from the records of Plaintiff’s Short-Term Disability Claim
(“STD Cl. [page]”), her Long-Term Disability Claim (“LTD Cl. [page]”), Unum’s Long-Term
Disability Plan (“LTD Plan [page]”), and certain of the additional exhibits filed by Plaintiff
in support of her motion (“Pl. Ex.”). For convenience, Plaintiff’s opening trial brief is
referred to as “Pl. Br.” (Dkt. #110); Defendants’ opening and opposition brief as “Def.
Br.” (Dkt. #114); Plaintiff’s opposition and reply as “Pl. Reply” (Dkt. #115); and
Defendants’ reply as “Def. Reply” (Dkt. #118), with citations corresponding to the
documents’ ECF pagination.
2
studies, analyze[] business requirements, interfac[e] with users to identify and
develop system requirements taking into account desired results, hardware
limitations[,] and operating requirements,” in addition to having duties of
“[p]repar[ing] detailed documentation, provid[ing] user training and support as
required, ensur[ing] procedures are thoroughly tested before release, and
monitor[ing] test results.” (Id.). On May 18, 2012, Plaintiff ceased working in
her prior position (id. at 11); thereafter, she sought short- and long-term
disability benefits based on a claim of a qualifying cognitive dysfunction, as
detailed below.
2.
Plaintiff’s Claim for Long-Term Disability Benefits
a.
Time Warner’s Long-Term Disability Plan
The Plan, administered on behalf of Time Warner by Unum, advises
beneficiaries, in relevant part: “You are disabled when Unum determines that:
[i] you are limited from performing the material and substantial duties of
your regular occupation due to your sickness or injury; and [ii] you have a
20% or more loss in your indexed monthly earnings due to the same sickness
or injury,” with the bolded terms defined by the Plan. (LTD Plan 18 (boldface in
original)). As relevant here, (i) “limited” is defined as “what you cannot or are
unable to do”; (ii) “material and substantial duties” are defined as duties that
“are normally required for the performance of your regular occupation” and
“cannot be reasonably omitted or modified”; (iii) “regular occupation” is defined
as “the occupation you are routinely performing when your disability begins”;
and (iv) “sickness” is defined as “an illness or disease.” (Id. at 35-37). Further,
3
the Plan imposes a 26-week “elimination period,” defined as “a period of
continuous disability which must be satisfied before you are eligible to receive
benefits from Unum.” (Id. at 6, 18, 35).
In the “Claim Information” portion of the Plan, the section titled “What
information is needed as proof of your claim?” specifies certain information
that must be substantiated in a proof of claim, including: (i) that the claimant
is “under the regular care of a physician”; (ii) documentation of the claimant’s
monthly earnings; (iii) the date the alleged disability began; (iv) the cause of the
cited disability; (v) the extent of disability, including restrictions and limitations
precluding the claimant’s regular occupation; and (vi) contact information for
the claimant’s treating hospitals and physicians. (LTD Plan 8 (boldface in
original)).
Of note, the Plan also provides that “[d]isabilities, due to sickness or
injury, which are primarily based on self-reported symptoms, and disabilities
due to mental illness have a limited pay period of up to 24 months.” (LTD
Plan 26 (boldface in original)). Following that 24-month period, Unum will
continue to pay benefits only if the claimant is confined to a hospital or
institution or if, after the 24-month period, the claimant continues to be
disabled and “subsequently become[s] confined to a hospital or institution for
at least 14 days in a row.” (Id.). Unum defines “self-reported symptoms” as
those for which “the manifestation[s] of [the claimant’s] condition” reported to a
physician “are not verifiable using tests, procedures or clinical examinations
standardly accepted in the practice of medicine.” (Id. at 37). The Plan gives a
4
number of examples, including “headaches, pain, fatigue, stiffness, soreness,
ringing in ears, dizziness, numbness and loss of energy.” (Id.). “Mental
illness,” in turn, is defined as “a psychiatric or psychological condition
regardless of cause such as schizophrenia, depression, manic depressive or
bipolar illness, anxiety, personality disorders and/or adjustment disorders or
other conditions.” (Id. at 36). The Plan further notes that such conditions “are
usually treated by a mental health provider or other qualified provider using
psychotherapy, psychotropic drugs, or other similar methods of treatment.”
(Id.).
b.
Plaintiff’s Medical and Psychological Treatment
i.
Evaluations and Treatment in 2009
Plaintiff first visited a doctor for issues related to the instant disability
claim on October 7, 2009, when she visited neurologist Slobodan Miric. (LTD
Cl. 341). According to Dr. Miric, Plaintiff was “complaining that she ha[d] had
memory problems for more than five years,” and felt “that she [was] becoming
more forgetful, that she [could not] memorize certain things, that she [was]
having difficulty learning, and that these things [were] getting worse over the
last five years.” (Id.). Plaintiff reported feeling embarrassed at work due to
these difficulties; she also referenced taking Klonopin and Vyvanse, but did not
believe those medications were helping. (Id.). 3
3
Klonopin is “a sedative generally used to treat seizures, panic disorder, and anxiety.”
Villa v. Colvin, No. 14 Civ. 463 (MAT), 2016 WL 1054757, at *2 (W.D.N.Y. Mar. 17,
2016). Vyvanse is “a central nervous system stimulant which is indicated for the
treatment of ADHD [Attention Deficit Hyperactivity Disorder].” Doe v. Unum Life Ins. Co.
of Am., 116 F. Supp. 3d 221, 224 (S.D.N.Y. 2015).
5
Dr. Miric recorded Plaintiff’s mental status as “normal comprehension,
attention, and judgment,” and noted that she denied headaches or visual
changes. (LTD Cl. 342). He also indicated that he would refer Plaintiff for an
MRI of the brain and cervical spine, in addition to an EEG and a
neuropsychological evaluation “for memory testing and ADD [Attention Deficit
Disorder].” (Id. at 343). Dr. Miric further noted that he would obtain Plaintiff’s
prior laboratory studies. (Id.). In a follow-up visit on October 20, 2009,
Dr. Miric reported, in relevant part, that Plaintiff’s brain MRI results were
within normal limits, but her EEG results were still pending and she had not
yet completed memory testing with the neuropsychologist. (Id. at 346; see also
id. at 366-67 (Plaintiff’s brain MRI results)).
Between October and December 2009, Plaintiff underwent
neuropsychological testing with Dr. Stephen Craig, a clinical psychologist,
pursuant to Dr. Miric’s referral. (LTD Cl. 85-93). Dr. Craig stated that Plaintiff
had been referred due to “gradual, unexplained memory and information
processing problems,” and that Plaintiff had reported experiencing “an onset of
difficulties approximately 3 to 4 years [prior] with gradual progression and the
recognition that the progression [was then] accelerating.” (Id. at 85). Plaintiff
informed Dr. Craig that she had sought help for these issues for the previous
two-and-a-half to three years from her primary care physician. (Id.).
Dr. Craig noted that Plaintiff’s reported cognitive problems included
“memory blocking,” including an inability to recall information on a short-term
basis (i.e., minutes or days earlier), in addition to “having great difficulty with
6
new learning and retention.” (LTD Cl. 85). Plaintiff informed Dr. Craig that her
coworkers had begun to notice her difficulties and declining performance, and
“it was getting so that she could no longer perform her job duties.” (Id. at 8586). Apart from cognitive and memory-related issues, Plaintiff also reported
muscle and joint pain, tightness, and cramps. (Id. at 85).
In the course of Plaintiff’s visits, Dr. Craig administered three tests,
including (i) the Wechsler Adult Intelligence Scale – 3rd Edition (“WAIS-III”); 4
(ii) the Developmental Test of Visual Motor Integration – 5th Edition (“VMI”);5
and (iii) the Test of Memory and Learning – 2nd Edition (“TOMAL II”). 6 (LTD
Cl. 85). Dr. Craig documented that Plaintiff was “cooperative in all aspects of
assessment” and “appeared motivated on all tasks.” (Id. at 86). From the
WAIS-III, Dr. Craig concluded, importantly, that Plaintiff’s score on the working
memory portion was “at the lower limit of the Low Average range, upper limit of
the Borderline range[,] and significantly below her scores on all other Index and
IQ Domains.” (Id. at 88). Further, Dr. Craig observed that “[a]mong the verbal
tests, [Plaintiff’s] score on both Vocabulary and Information exceeded her
average score for the set of verbal tests by a significant degree while her scores
4
According to Dr. Craig’s records, the WAIS-III provided standard measures of
intelligence quotient (“IQ”) in the areas of verbal IQ, performance IQ, and full-scale IQ; it
also provided scores for “Verbal Comprehension, Perceptual Organization, and Working
Memory and Processing Speed.” (LTD Cl. 87).
5
Dr. Craig indicated that the VMI test “identifies problems with visual perception, motor
coordination, and visual-motor integration,” and may be used to diagnose cognitive
development issues. (LTD Cl. 91-92).
6
Dr. Craig described the TOMAL II as “a memory battery used for evaluating general and
specific memory function,” consisting of “8 core subtests, 6 supplementary subtests,
and 2 delayed recall tasks.” (LTD Cl. 90).
7
on both Arithmetic and Digit Span were significantly below average.” (Id. at
89). As Dr. Craig’s report emphasizes, “[b]oth Vocabulary and Information
draw on well learned data and performance does not rely on either the learning
of new information or manipulation of information,” suggesting Plaintiff’s
relative strength in the realm of long-term information retention. (Id.
(emphasis in original)).
From the TOMAL-II test, Dr. Craig gleaned that Plaintiff had “deficits in
[her] ability to hold and manipulate stimuli in short term/working memory
[that were] consistent with her reported day to day problems as well as what
was seen on all aspects of assessment.” (LTD Cl. 91). Dr. Craig further noted
that deficits on non-verbal tests stood “in stark contrast to [Plaintiff’s] earlier
level of functioning.” (Id.). Finally, for the VMI test, Dr. Craig recorded
Plaintiff’s score in the 70th percentile for visual motor integration and the 10th
percentile for visual perception. (Id. at 91-92).
Overall, Dr. Craig observed that the cognitive testing reflected Plaintiff’s
“better ability to recall ‘long term’ information,” as contrasted with her “deficits
across most areas of verbal and non-verbal recall and manipulation of stimuli
in short-term/working memory.” (LTD Cl. 93). Dr. Craig concluded that his
“findings clearly document[ed] deficits that [were] consistent with the narrative
summary that [Plaintiff] provide[d] as to her day-to-day difficulties”;
significantly, however, his findings did not “pin-point an etiology of those
difficulties.” (Id.). Instead, Dr. Craig offered that his findings “serve as a
baseline assessment of current functioning — one that is able to document
8
deterioration from prior levels of functioning — and as a reference point for
comparison of change over time — either improvement or decline — as
treatments and interventions proceed.” (Id.).
On November 17, 2009, Plaintiff returned to Dr. Miric, who reported that
her EEG was “normal,” and that his neurological examination had indicated
that Plaintiff had “normal comprehension.” (LTD Cl. 349). Dr. Miric noted that
Plaintiff was in the process of finishing the neuropsychological exam, and he
recorded Plaintiff’s statements to him concerning her prior prescriptions for the
stimulant Adderall and the anti-anxiety drug Xanax. (Id.). Dr. Miric also
relayed that Plaintiff had “described … an episode while she was doing [the]
neuropsychological evaluation [during which] she had sudden symptoms of
headaches and tension in the whole body while she was trying to perform
calculation which lasted several hours.” (Id.). Plaintiff told Dr. Miric this was
“very unusual.” (Id.).
ii.
Evaluations and Treatment in 2010
The notes of Plaintiff’s January 6, 2010 visit to Dr. Miric referenced her
2009 evaluation by Dr. Craig, who, as noted earlier, had “concluded that
[Plaintiff] had deficit[s] related to retention, manipulation of new information
and short term working memory.” (LTD Cl. 351). Dr. Miric noted Dr. Craig’s
conclusion that these “[c]urrent findings [could] serve as a baseline for further
comparison.” (Id.). He also noted that Plaintiff “continue[d] to have problems
with memory and finding the words,” and she reported severe daily headaches.
(Id.).
9
Dr. Miric found that Plaintiff’s laboratory studies were normal. (LTD
Cl. 351). Ultimately, he concluded that Plaintiff “seem[ed] to have genuine
cognitive decline of unexplained etiology,” and while her brain MRI and
laboratory studies had come back normal, he thought Plaintiff should be
subjected to further testing “due to [the] neuropsychological evaluation that
she recently completed.” (Id. at 352). Dr. Miric wanted to rule out vasculitis,
and he prescribed a 72-hour ambulatory EEG and further follow-up with a
neuropsychologist. (Id.).
Following the ambulatory EEG, Plaintiff again met with Dr. Miric on
February 19, 2010. (LTD Cl. 354). Dr. Miric noted that on the third day of the
EEG, there were “paroxysmal events which could represent electrographic
generalized seizure discharges without subjective symptoms.” (Id.). Plaintiff
described “episodes when she suddenly [was] feeling frozen with her mind,”
and Dr. Miric noted a “possibility that [Plaintiff] could have reflexive seizures.”
(Id. at 354-55). 7
iii.
Evaluations and Treatment in 2012
The record reveals no relevant medical treatment of Plaintiff between
February 2010 and March 2012. On March 26, 2012, Plaintiff visited Doctor of
Osteopathic Medicine Bruce Lee Mintz for a health maintenance visit; Dr. Mintz
noted her complaints of headaches, anxiety, and memory loss. (LTD Cl. 128-
7
Though Plaintiff made reference to “seizures” in consulting with other treating medical
professionals, the record reveals no further substantiation of this diagnosis. An EEG
administered in May 2013, moreover, revealed “no definite epileptiform activity.” (LTD
Cl. 952).
10
31). On April 2, 2012, Plaintiff followed up with Dr. Mintz about her
headaches, and informed him that she had ceased taking her prescribed
medication. (Id. at 126-27). Subsequently, during a May 17, 2012 visit to Dr.
Mintz, Plaintiff complained primarily of chest pain; while Dr. Mintz’s notes
contain references to memory loss and anxiety, those issues did not appear to
be the foci of Plaintiff’s visit. (Id. at 123-25).
In May 2012, Plaintiff returned to Dr. Craig for re-evaluation. Dr. Craig
indicated that Plaintiff reported resolution of her severe headaches, though she
claimed that her memory was still impaired. (LTD Cl. 94). Plaintiff also
informed Dr. Craig about resultant performance-related issues at work, noting
that “she ha[d] been told that unless things improve[d] she [would] likely be let
go.” (Id.). On the WAIS-IV and TOMAL-II tests, Dr. Craig reported
improvements in certain sectors and regression in others, and an overall
deterioration on the VMI test. (Id. at 94-98). Dr. Craig noted that “[g]iven the
pattern of improvement in some areas … juxtaposed to deterioration in some
aspects of verbal cognitive functioning and verbal memory it is important to
continue to monitor [Plaintiff].” (Id. at 98). He recommended re-evaluation
after one year. (Id.).
Also in May 2012, Plaintiff visited neurologist Walter Husar, who noted
that Plaintiff reported “a long history of headaches and [that she] ha[d] been
seen by many different physicians.” (LTD Cl. 83). Dr. Husar wrote that
Plaintiff’s headaches, pains, and chemical sensitivity “began many years ago”;
that she had previously treated with a neurologist who “[g]ave up on her”; but
11
that she had more recently “gotten an ultimatum [at work] either to get help or
get terminated.” (Id.). 8 Dr. Husar referenced Plaintiff’s “extensive evaluation,
[with an] essentially normal work-up,” including “extensive laboratory testing
that essentially demonstrate[d] a normal central nervous system problem.”
(Id.). Dr. Husar noted, however, that “neuropsychological testing ha[d]
demonstrate[d] her cognitive issues quite well, but fail[ed] to achieve an actual
diagnosis or therapy.” (Id.). Dr. Husar stated that Plaintiff’s “neurological
review of systems [was] unremarkable and non-contributory,” and his
impression was “Memory Loss – Neuropsychological evidence of cognitive
dysfunction,” and pain and myalgia due to Epstein-Barr Virus. (Id. at 83-84).
Dr. Husar’s “plan” included reassurance, short-to-long-term disability, and
follow-up in one month. (Id.).
On May 25, 2012, Dr. Husar filled out an Attending Physician Statement,
indicating that he had diagnosed Plaintiff with cognitive dysfunction (albeit
with no listed etiology), and noting that her memory, calculation, and verbal
processing had all declined. (LTD Cl. 248). Dr. Husar based his diagnosis on
an examination and neuropsychological testing, and he described a treatment
plan of cognitive rehabilitation. (Id. at 248-49). His Attending Physician
Statement described Plaintiff’s functional capacity in terms of her ability to
8
Plaintiff relayed to Unum’s field investigator in April 2013 that her supervisor had
inquired in early 2012 about her health, and that Plaintiff had “admitted … that she
was ill.” (LTD Cl. 792). Plaintiff stated that the supervisor referred her to Human
Resources, who then “told her that she had no choice but to go on short-term
disability.” (Id.). After reviewing the record in Plaintiff’s short- and long-term claims,
the Court has not identified any documentation of this sequence of events.
12
engage in a number of physical tasks, but noted that her restrictions and
limitations included “[a]ny cognitive processing tasks.” (Id. at 249-50). Dr.
Husar indicated that he did not know when Plaintiff would improve, but
estimated that it would take “at least 6-10 months.” (Id. at 250).
In June 2012, Plaintiff visited Dr. Husar for a follow-up consultation, but
his findings and notes were largely identical; his plan included follow-up in
four more months. (LTD Cl. 81-82). In August 2012, Plaintiff returned to
Dr. Husar, who noted that “[r]epeat neuropsychological testing show[ed]
improvement in certain domains and worsening in others,” and while certain of
Plaintiff’s pains were better, her headaches were worse. (Id. at 102). Dr.
Husar’s impressions included (i) “Memory Loss – the Sequelae of [Epstein-Barr
Virus] infection with Neuropsychological evidence of cognitive dysfunction with
minimal evidence on bedside testing”; and (ii) “Fibromyalgia with myalgias,
pain, and headaches – secondary to Epstein-Barr viral infection.” (Id. at 103).
Dr. Husar prescribed, inter alia, cognitive rehabilitation with repeat testing
after six months. (Id.).
In July 2012, while on short-term disability leave, Plaintiff was referred
by Time Warner’s Human Resources Department’s Employee Assistance
Program to clinical psychologist Edward Linehan. (LTD Cl. 609). Dr. Linehan
referenced an earlier diagnosis of Chronic Fatigue Syndrome (“CFS”), and listed
Plaintiff’s then-current symptoms to include chronic pain, muscle and joint
pain, sleep disturbance, dizziness, cognitive deficits, and speech impairment.
(Id.). Dr. Linehan recorded that Plaintiff had a boyfriend in Florida whom she
13
saw once a month and described as “useless,” and she had family local to
Arizona who similarly did not provide support. (Id. at 609-10). Dr. Linehan
ultimately diagnosed Plaintiff with depression and with reduced cognitive
functioning due to CFS, and noted a Global Assessment Functioning (“GAF”)
score of 40. (Id. at 610-11). 9
In the early fall of 2012, Plaintiff visited Dr. Martha Grout at the Arizona
Center for Advanced Medicine for issues of chronic fatigue and pain. (LTD
Cl. 110). Dr. Grout’s plan was “to test functional nutrition status,” as she
suspected nutritional deficiencies and issues may have been contributing to
Plaintiff’s complaints. (Id.). Dr. Grout recommended that Unum continue
Plaintiff’s short-term disability, and “anticipate[d] [ ] a 6-9 month course of
rehabilitation,” after which Plaintiff could return to work. (Id.).
On October 23, 2012, Plaintiff met with Dr. Kathleen Cramer, a licensed
psychologist, for a diagnostic interview. (LTD Cl. 108). Plaintiff informed Dr.
Cramer that she “was forced to quit her job due to memory, concentration, and
attention problems at work.” (Id.). Of note, Dr. Cramer did not perform any
testing, but theorized based on Plaintiff’s reports of headaches, sleep issues,
and seizures that while those medical issues might not “in isolation impact
cognitive functioning, it [was] possible that, cumulatively, they [could] impact
9
“The GAF is a scale promulgated by the American Psychiatric Association to assist in
tracking the clinical progress of individuals [with psychological problems] in global
terms.” Kohler v. Astrue, 546 F.3d 260, 262 n.1 (2d Cir. 2008) (internal citation
omitted); see also Petrie v. Astrue, 412 F. App’x 401, 406 n.2 (2d Cir. 2011) (summary
order) (“GAF is a scale that indicates the clinician’s overall opinion of an individual’s
psychological, social and occupational functioning.”).
14
cognitive functioning.” (Id.). Dr. Cramer observed based on the interview that
Plaintiff appeared to be suffering from anxiety and depression; in consequence,
she referred Plaintiff to a Board-certified neuropsychologist and recommended
she see a neurologist. (Id.).
On October 24, 2012, Plaintiff visited psychologist Paul A. Meyer for an
intake evaluation, after being referred for cognitive therapy and
neuropsychological testing. (LTD Cl. 174). Dr. Meyer related Plaintiff’s “severe
headaches, seizure activity and [ ] moderate to severe cognitive deficits [that]
result[ed] in her losing her job.” (Id.). He also noted that, according to Plaintiff,
“[s]he was able to work under her previous supervisor as she was ‘allowed to
get by,’ however, a new supervisor came into Time/Warner where [Plaintiff] was
working and could assess that [her] deficits prevented her from maintaining
employment.” (Id.). Dr. Meyer referenced Plaintiff’s past “extensive
neurological work up via medical and psychological testing with negative
results,” and noted Plaintiff’s expressed concerns that she had lost memory of
the past, could not learn new tasks, and was now “unable to function at an
acceptable level beyond the ability to live independently.” (Id.). Dr. Meyer also
noted that Plaintiff would be “referred to neuropsychological testing as there
[was] a letter stating previous testing was inaccurate.” (Id.). 10 Dr. Meyer
further stated, in relevant part, that Plaintiff “convey[ed] a poor short term,
10
The Court observes that a different medical professional, Dr. Christine Moyer, later
made a similar comment — that “a medical consultant for the patient reviewed [Dr.
Craig’s] two neuropsychological evaluations and offered several criticisms.” (See LTD
Cl. 115). However, despite reviewing both the short- and long-term disability claim
records, the Court has not located the letter referenced by Dr. Meyer and Dr. Moyer.
15
long term memory deficit, [but] no longer ha[d] seizure activity as she [was] on
a new diet for inflammation.” (Id. at 174). Dr. Meyer diagnosed Plaintiff with
cognitive deficits and adjustment disorder. (Id. at 173). 11
On October 30, 2012, Plaintiff visited a rheumatology Physician’s
Assistant, Miranda Isom, presenting with arthralgias, joint and muscle pain,
headaches, and memory loss, with symptoms that reportedly began around
October 2009. (LTD Cl. 133). 12 PA Isom diagnosed Plaintiff with fibromyalgia,
and explained to Plaintiff the importance of exercise, stress reduction, and
management of related sleep and mood disorders. (Id. at 135). PA Isom also
referred Plaintiff for aquatic therapy. (Id.). 13
Plaintiff resumed psychotherapy with Dr. Meyer on October 31, 2012, at
which time Dr. Meyer noted that Plaintiff’s cognitive processes were impaired,
and referred her for neuropsychological testing. (LTD Cl. 172). As with other
of Plaintiff’s treating professionals, Dr. Meyer stated that the etiology of
Plaintiff’s issues was unknown. (Id.). On November 7, 2012, Plaintiff again
met with Dr. Meyer and discussed the results of her neuropsychological
11
“An adjustment disorder is stress-related mental illness that causes depression and
anxiety in response to a life change that the individual experiencing the disorder has
difficulty coping with.” Petty v. Colvin, No. 12 Civ. 1644 (LTS) (RLE), 2014 WL 2465109,
at *6 n.7 (S.D.N.Y. June 2, 2014) (internal citation omitted).
12
Arthralgia is “pain in a joint.” DiPalma v. Colvin, 951 F. Supp. 2d 555, 559 n.1
(S.D.N.Y. 2013).
13
The record shows Plaintiff attended physical therapy from approximately November
2012 to January 2013 for musculoskeletal pain. (LTD Cl. 138-42, 175-88). Plaintiff’s
physical therapy records referenced her medical diagnosis of fibromyalgia and often
mentioned Plaintiff’s headaches and dizziness. (See, e.g., id. at 138, 186-87).
16
testing; Dr. Meyer observed that Plaintiff had “fair insight with cognitive deficits
described in neuropsychological testing.” (Id. at 170).
iv.
Evaluations and Treatment in Late 2012 and the
First Half of 2013
Plaintiff returned for further psychotherapy with Dr. Meyer on November
14, 2012 (LTD Cl. 167-68); November 28, 2012 (id. at 165-66); December 4,
2012 (id. at 162-63); December 11, 2012 (id. at 160-61); December 26, 2012
(id. at 158-59); January 2, 2013 (id. at 156-57); January 7, 2013 (id. at 15455); and January 11, 2013 (id. at 152-53). During these visits, Dr. Meyer
observed, in relevant part, that Plaintiff’s cognitive processes waxed and waned
from week to week but were generally impaired, though the etiology remained
unknown. (Id. at 168). Plaintiff informed Dr. Meyer that she had been exposed
to black mold but lost the ensuing lawsuit; this is the earliest mention in the
record of such exposure to a treating professional. 14 With this new
information, Dr. Meyer indicated in his December 26, 2012 notes that
Plaintiff’s symptoms were “likely caused by multiple etiologies such as black
mold poisoning, workplace stress and inappropriate reaction to difficult work
environment.” (Id. at 159, 161). On January 7, 2013, Dr. Meyer observed that
Plaintiff’s “cognitive difficulties [did] not appear to be sole[ly] a result of
14
The Court has reviewed the record and found no documents pertaining to this lawsuit;
while documents relating to a separate landlord-tenant dispute (in which Plaintiff
appeared as the defendant) were produced in the long-term disability claim record,
those papers do not reference any mold-related claims. Thus, the Court is unable to
determine whether Plaintiff’s “loss” of this alleged lawsuit was due to a finding that
there had been no toxic mold exposure, or some other basis.
17
psychiatric etiology but [her] depressive/anxious [symptoms] result[ed] from
memory deficits and overall cognitive difficulties.” (Id. at 155).
Following Plaintiff’s visits, on January 11, 2013, Dr. Meyer completed a
“Mental Impairment Questionnaire,” which indicated that Plaintiff had
undergone neuropsychological testing and individual psychotherapy; while
Plaintiff’s depressive and anxiety-related symptoms had improved, her cognitive
deficits had not. (LTD Cl. 189-94). Dr. Meyer assessed a GAF score of 45, and
his clinical findings stated that Plaintiff had “very poor long and short term
memory, concentration difficulties, moderate problem-solving impairment, [and
her] overall poor cognitive functioning cause[d] mood [symptoms].” (Id. at 189).
Dr. Meyer noted that Plaintiff’s prognosis was poor, though even then he could
not advance an etiology for her symptoms, noting simply that the matter was
“being investigated.” (Id.). Dr. Meyer further referenced Plaintiff’s symptoms
and noted that she was “unable to meet competitive standards” or had “[n]o
useful ability to function” in 13 of 16 categories of “mental abilities and
aptitudes needed to do unskilled work” (id. at 190-91); she further had “no
useful ability to function” in all four categories of abilities necessary for skilled
or semiskilled work (id. at 192). Dr. Meyer estimated that Plaintiff’s
impairments would cause her to be absent from work 60% to 80% of the time,
and he indicated his assessment that Plaintiff was not a malingerer. (Id. at
193-94). On January 14, 2013, Dr. Meyer sent a letter to Dr. Rama
Narasimhan, to whom Plaintiff had been referred, in which he recommended a
PET scan, along with a possible spinal tap or ambulatory EEG, noting that he
18
“d[id] not believe that depression and/or anxiety [was] the cause of [Plaintiff’s]
cognitive deficits,” but, rather, believed the converse. (Id. at 151).
Meanwhile, on November 1, 2012, Plaintiff visited clinical psychologist
Christine Moyer for a neuropsychological evaluation, in order “to assist in
clarifying [her] diagnosis and to address alleged deficiencies in two previous
neuropsychological evaluations.” (LTD Cl. 114-21). Dr. Moyer noted that
Plaintiff reported developing cognitive symptoms approximately three years
prior, around a time when she and her daughter were exposed to toxic mold in
a rented home. (Id. at 114-15). 15 With regard to Dr. Craig’s prior evaluations,
Dr. Moyer noted that they had been criticized for using a “nonstandard
measure of memory, no assessment of symptom validity, no measure of
personality/emotional status and no conclusions/diagnoses/
recommendations.” (Id. at 115). She concurred in these critiques. (Id. at 119).
Dr. Moyer then conducted a number of validity tests and itemized her
conclusions. First, after administering a “Dot Counting Task,” Dr. Moyer
recounted that Plaintiff’s performance “[a]t first glance … seem[ed] suspicious
for exaggeration of symptoms”; Dr. Moyer later reasoned that one anomalous
portion of the test likely skewed the results, and thus concluded that the test
was not “evidence of a consistent attempt to exaggerate difficulties.” (LTD Cl.
116 (emphasis in original)). On the next two tests, Dr. Moyer found Plaintiff’s
performance again did not “support any significant tendency to exaggerate her
15
This history contrasts sharply with those provided by Plaintiff to Drs. Miric and Craig in
2009, see supra at 5-7, and presumably was modified by Plaintiff to fit the timing of her
purported exposure to the black mold.
19
difficulties” and “demonstrated a tendency to be cooperative and willing to
respond in an honest fashion.” (Id.). Dr. Moyer cautioned that the “Response
Bias Scale” portion of one test “could suggest an individual who exaggerates
memory complaints, [but could also suggest] an individual with significant
emotional difficulties who reports credible symptoms which are genuinely
distressing to her”; Dr. Moyer interpreted Plaintiff’s results to suggest the
latter, based on Plaintiff’s reported history and presentation. (Id.).
Substantively, Dr. Moyer determined that Plaintiff’s “overall memory
functioning [was] somewhat lower than would be expected given her
educational/occupational histories”; while Plaintiff had average scores for
visual and immediate (i.e., short-term) memory, her scores were low average to
borderline for auditory and delayed (i.e., long-term) memory. (LTD Cl. 117-18).
Dr. Moyer observed that Plaintiff “demonstrate[d] significant difficulties in
memory skills, particularly on tests of delayed recall of both verbal and visual
material.” (Id. at 119). Dr. Moyer noted that the etiology of Plaintiff’s
difficulties remained unclear, but — with no apparent knowledge of the
timelines that Plaintiff had recounted to her prior treating physicians — she
“attach[ed] special significance to the fact that [Plaintiff] unhesitatingly
reported the onset of her cognitive/physical difficulties during a time period
when she had a possible exposure to toxic mold.” (Id. at 119-20). Dr. Moyer
diagnosed Plaintiff with “adjustment disorder” and recommended “[a]ggressive
treatment of depression/anxiety,” continued psychotherapy, periodic
20
neurological follow-up, and possible repeated neuropsychological evaluations
after nine to twelve months. (Id. at 120-21).
On January 15, 2013, Plaintiff visited Dr. Narasimhan, who noted that
she “presented … with three-year history of memory problem[s] and chronic
daily headaches.” (LTD Cl. 149). Dr. Narasimhan recorded her suspicion of
anxiety and depression and stated that Plaintiff “carrie[d] the diagnosis of
chronic fatigue syndrome and most recently fibromyalgia.” (Id.). Plaintiff
brought Dr. Narasimhan the results of her three-day ambulatory EEG (see
supra at 10), along with Dr. Meyer’s note stating that Plaintiff’s cognitive issues
could not be explained by a mood disorder (supra at 17-18).
On February 19, 2013, Plaintiff visited the Mayo Clinic in Scottsdale,
Arizona. There, she was observed by internist Tina Byun, who noted Plaintiff’s
muscle and joint pain, along with “symptoms of palpitations.” (LTD Cl. 311).
Dr. Byun then described Plaintiff’s “flares,” including “headaches, symptoms of
blackouts, dizziness and palpitations.” (Id.). As Dr. Byun’s notes indicated,
Plaintiff’s first flare occurred approximately three years prior, “following
exposure to mold in her house,” and Plaintiff had “had subsequent episodes.”
(Id.). Dr. Byun noted that Plaintiff’s primary concern was cognitive
dysfunction, which had resulted in memory difficulties precluding Plaintiff’s
continued employment. (Id.). Dr. Byun related that Plaintiff had visited other
neurologists and undergone neuropsychiatric testing, and she continued to
work with a cognitive therapist. (Id.). Ultimately, Dr. Byun suspected
fibromyalgia and functional pain disorder, though she requested consultations
21
with rheumatology, behavioral neurology, and headache neurology. (Id. at 31112).
On the same date, internist Anjuli Brighton, also at the Mayo Clinic,
conducted a general medical examination of Plaintiff. (LTD Cl. 313-16; see also
id. at 504-07). Dr. Brighton referenced Plaintiff’s joint and muscle pain and
related that Plaintiff “link[ed] the development of these symptoms to exposure
to a severe black mold in her house.” (Id. at 313). Dr. Brighton noted that
from September 2009 to January 2010, Plaintiff had “a flare-up characterized
by a worsening severity of a chronic intermittent headache associated with
difficulty speaking, memory loss, cognitive impairment, blackouts, dizziness,
nausea, and palpitations.” (Id.). Plaintiff then had a second flare-up from
February to June 2012. (Id.). Dr. Brighton further related that Plaintiff
“experience[d] memory loss, both short term and long term,” and her “cognitive
impairment progressed to the point where she was relieved from her
occupation as a computer programmer.” (Id.). Dr. Brighton’s impressions
included “[a]rthralgias and myalgias,” 16 “[h]eadache and memory loss,” and
palpitations. (Id. at 315).
On February 27, 2013, Plaintiff underwent a neurology consult with
Dr. Bryan K. Woodruff at the Mayo Clinic. (LTD Cl. 508-11). Dr. Woodruff
relayed a similar history of Plaintiff’s illness, including three years of memory
struggles and two distinct flare-ups with intensifying symptoms. (Id. at 508).
16
Myalgias are muscle aches. Muscle Pain (Myalgia), Medicine.net,
http://www.medicinenet.com/muscle_pain_myalgia/symptoms.htm (last visited
Sept. 23, 2016).
22
Echoing other evaluators, Dr. Woodruff stated that there was “no clear
antecedent event or trauma that [Plaintiff] or her providers ha[d] thus far been
able to pinpoint that might have triggered this.” (Id.). Dr. Woodruff referenced
Plaintiff’s normal MRI and PET scan, but relayed examples of Plaintiff’s
cognitive difficulties, in terms of both long-term and short-term memory lapses.
(Id. at 509). In the “plan” portion of his report, Dr. Woodruff noted that “[g]iven
[Plaintiff’s] young age[,] in the absence of a family history of early onset
cognitive decline, it seem[ed] less likely that this [was] a neurodegenerative
process, but more likely that [they were] dealing with a fluctuating metabolic,
autoimmune or possibly inflammatory encephalopathy.” (Id. at 511). Dr.
Woodruff further recommended “a more exhaustive panel of laboratory
investigations looking for uncommon metabolic, paraneoplastic or autoimmune
causes of encephalopathy,” along with an updated EEG. (Id.).
In her notes from a follow-up visit on April 10, 2013, Dr. Brighton stated
that pursuant to Plaintiff’s recent appointment with a different doctor, “it was
noted that a possible cause of her cognitive symptoms [might] include possible
metabolic autoimmune or inflammatory encephalopathy,” and that further
testing had been ordered. (LTD Cl. 950-51). Dr. Brighton stated that Plaintiff
“continue[d] to be able to drive and perform her activities of daily living,” but
“remain[ed] frustrated with lack of ability to diagnose her symptoms currently.”
(Id. at 951). Dr. Brighton referenced a number of lab tests performed, notably
including Plaintiff’s recent EEG, which indicated “no definite epileptiform
activity.” (Id. at 952). In her impressions, Dr. Brighton articulated her
23
“suspicion that chronic pain syndrome [might] be a partial explanation for
[Plaintiff’s] symptoms,” but “due to a progression of her symptoms and the
significant effect on her daily activity in life and the concerning functional and
cognitive impairment, [the Mayo Clinic would] continue to try to evaluate
possible autoimmune and inflammatory causes.” (Id.).
In notes from a May 1, 2013 follow-up visit, Dr. Woodruff indicated that
the “more exhaustive battery of laboratory and other investigations to look for
the possibility of autoimmune inflammatory paraneoplastic or metabolic causes
of encephalopathy” came back “unremarkable.” (LTD Cl. 955). Dr. Woodruff
referenced a number of specific test results — including an EEG and a PET
scan — that were either unremarkable, “of doubtful clinical significance,” or “in
the normal range.” (Id.). Dr. Woodruff stated that he “[did] not have a clear
explanation for [Plaintiff’s] fluctuating cognitive symptoms,” but “[could] not
rule out the possibility that [he was] simply seeing her at 1 of her more ‘normal’
time points and that if she had worsening neurological symptomatology in the
future[,] follow[-]up testing might show findings that [were] not present
currently.” (Id. at 956). He further noted that Plaintiff was scheduled to meet
with rheumatologists who could potentially “clarify whether they [thought] her
clinical picture would be adequately explained” by her fibromyalgia diagnosis.
(Id.). Dr. Woodruff recommended repeat neuropsychological assessment later
in the year “to ensure that there [was] no progression of the cognitive
symptoms documented with the last neuropsychological assessment.” (Id.).
Ultimately, Dr. Woodruff diagnosed fibromyalgia, sleep apnea, headaches,
24
presyncopal (i.e., light-headed or dizzy) episodes, and “[f]luctuating cognitive
symptoms with residual mild cognitive dysfunction.” (Id.).
On May 8, 2013, Plaintiff visited Dr. April Chang-Miller and Nurse
Tammy Larson-Cain at Mayo Clinic. (LTD Cl. 1053-57). While Plaintiff’s visit
largely focused on her pain issues, Plaintiff indicated that “[t]he cognitive
dysfunction that she report[ed] ha[d] baselined but her pain [had] increased.”
(Id. at 1053). Plaintiff noted that she continued to see a cognitive therapist
weekly, which Dr. Chang-Miller advised her to continue. (Id. at 1056-57).
c.
Unum’s Review of Plaintiff’s Records
As noted, Plaintiff left Time Warner on disability leave in May 2012, and
submitted a claim for disability benefits on May 22, 2012. (STD Cl. 2; LTD
Cl. 2). In July 2012, Nancy Deane-Loranger, a Registered Nurse employed by
Unum, reviewed Plaintiff’s medical records and observed that while Plaintiff
was “evaluated for reported cognitive dysfunction in 2009 with indication of
some level of dysfunction based on test findings,” Plaintiff had continued to
work after that time. (STD Cl. 130). Nurse Deane-Loranger further noted that
Plaintiff’s 2012 records had referenced ongoing cognitive issues, but that some
areas of functioning had improved. (Id.). As she concluded, “[i]t [was] unclear
how [Plaintiff was] specifically impaired based on the updated testing
presented,” as “[t]here [was] no specific diagnosis” provided by her attending
physicians, and “no treatment plan ha[d] been presented at [that] time other
than reassurance and disability.” (Id.).
25
Nurse Deane-Loranger reviewed the file again a few months later in
November 2012, summarizing records from Drs. Cramer. Grout, Meyer, Moyer,
Mintz, Craig, and PA Isom, and concluding that Plaintiff’s medical information
was “insufficient to determine” specific restrictions and limitations.
Specifically, Plaintiff’s complaints of pain and cognitive impairment were
deemed to be “in excess of findings on clinical and physical examinations,” as
there was “no indication in the various medical records of specific and observed
examples of [Plaintiff] having difficulty with physical movements or activities
and there [was] no indication of any observed confusion or memory issues
related to office visit interactions or teaching.” (STD Cl. 244-47).
A Unum medical consultant, neuropsychologist William Black, first
reviewed Plaintiff’s file on July 24, 2012. (STD Cl. 134-36). Dr. Black reviewed
Dr. Craig’s neuropsychological evaluations and Dr. Husar’s observation notes;
as he determined, “[t]he format of the two written reports [was] highly atypical
of standard clinical or neuropsychological reports, and include[d] the results of
minimal psychological testing.” (Id. at 134-35). Dr. Black stated that the
reports did not assess “most standard neurocognitive domains,” used
“nonstandard cognitive measures of memory and visual spatial ability,” failed
to assess symptom validity or emotional status, and did not contain
conclusions, diagnoses, or recommendations. (Id. at 135). Further, with
regard to Dr. Craig’s second round of testing in 2012 with noted improvements
and declines, Dr. Black found that the testing “demonstrated several test-based
abnormalities of questionable validity”; as he explained, Plaintiff’s results
26
indicating both significant improvements and declines amounted to an
“inconsistent pattern of change,” which was “atypical of cognitive disorders
having a physical basis” and “raise[d] a question of invalid test performance.”
(Id.).
On December 5, 2012, Dr. Black again reviewed Plaintiff’s file, focusing
principally on Dr. Moyer’s neuropsychological examination. (LTD Cl. 415-18).
Dr. Black observed that Dr. Moyer was “not a neuropsychologist and [ ] not
board-certified,” and that she “administered a highly abbreviated psychological
screening exam” — including “a single standard test of memory (WMS-IV), a
comprehensive personality test (MMPI-2-RF), and two obsolete rarely used and
low sensitivity symptom validity tests (original dot counting & Rey 15 Item
Test).” (Id. at 416). Dr. Black indicated that this testing “does not represent
the standard of practice in clinical neuropsychology and is never used in
forensic and/or disability assessments.” (Id.). Further, Dr. Black noted that
Plaintiff achieved inconsistent performance on the symptom validity
assessments, rendering it “questionable that [she] put forth full effort during
the assessment.” (Id.).
With regard to the substance of the testing, Dr. Black noted that Plaintiff
had scored from “borderline” to “average” on the administered memory test,
which he deemed to be not indicative of a significant weakness. (LTD Cl. 416).
While Dr. Moyer had interpreted the response bias portion of the testing as
indicative of “an individual with significant emotional difficulties who reports
credible symptoms which are genuinely distressing to her,” see supra at 20,
27
Dr. Black countered that such an interpretation ran “contrary to consensual
professional literature relating to this scale and to standard practice in
forensic/disability evaluations” (id.). Dr. Black concluded that Dr. Moyer’s
report amounted to a “highly limited and atypical psychological (not
neuropsychological) evaluation,” which rendered “the available evidence [ ] both
questionably invalid and significantly insufficient to validly determine
[Plaintiff’s] actual cognitive functioning.” (Id.).
On February 14, 2013, Dr. Nicholas Kletti, a board-certified psychiatrist
employed by Unum, reviewed Plaintiff’s file, noting that the file had been
referred for review by a psychiatrist because of “concerns that claimant’s
symptom complaints [might] be at least in part the result of psychiatric
illness,” although Plaintiff’s doctors had not certified psychiatric impairment.
(LTD Cl. 384-90). Dr. Kletti reviewed Plaintiff’s medical history and records,
her psychological testing by Dr. Craig, and its analysis by Dr. Black. (Id. at
384-86). Based on his review, Dr. Kletti found clear evidence of “a long history
of somatic anxiety/preoccupation,” but also found that it “remained unclear to
[him] whether [Plaintiff was] actually impaired from performing her usual
occupational duties.” (Id. at 387-88). Dr. Kletti noted that Plaintiff’s departure
from her job “was in the context of an identified workplace-specific stressor — a
new supervisor who had different expectations for [her] work performance.” (Id.
at 388-89). Dr. Kletti found that “it [did] not appear that any actual cognitive
dysfunction/impairment ha[d] been demonstrated by repeated testing and
clinical examinations, and treatment planning and intensity appear[ed]
28
inconsistent with cognitive dysfunction so severe as to preclude ability to
work.” (Id. at 389). More troublingly, Plaintiff’s records suggested to Dr. Kletti
that she might “be capable of greater functional abilities than what she or her
[Attending Physicians] [ ] reported.” (Id.).
On March 7, 2013, Anne Marie Murphy, another Registered Nurse
employed by Unum, conducted a review of Plaintiff’s file, evaluating medical
records from, among others, Drs. Miric, Narasimhan, Meyer, Grout, Cramer,
Moyer, Mintz, Craig, Byun, Husar, and PA Isom, in addition to Plaintiff’s
physical therapy records. (STD Cl. 507-17). Nurse Murphy summarized
Plaintiff’s records in detail before concluding that, inter alia:
(i)
(ii)
Her records back to 2009 demonstrated “extensive
medical work-up for cognitive and physical complaints,”
but a consistent failure to determine any etiology;
(iii)
No “significant findings [had been] noted on multiple
clinical exams and diagnostic testing to explain the
presence and severity of reported symptoms”;
(iv)
While Plaintiff had referenced negatively impacted work
performance, her supervisors had not provided
accommodations, had not issued any warnings, and,
perhaps most significantly, had not observed any
performance issues; 17
(v)
Despite her purported cognitive issues in 2009, Plaintiff
had continued to work at a job that “reportedly entailed
complex intellectual tasks and calculations”;
(vi)
17
Plaintiff had a “longstanding history” of memory-related
complaints;
Evaluations
by
Dr.
Mintz
and
Dr.
Husar
contemporaneous with Plaintiff stopping work “did not
identify
neurological
or
other
deficits,
nor
As noted, the record does not provide clarity on the circumstances of Plaintiff’s
departure, apart from her comment that, after informing her supervisor that she was ill,
Human Resources instructed her to go on short-term disability. (See supra at 12 n.8).
29
acute/significant findings to explain the reported
symptoms, severity, intensity and associated loss of
function”;
(vii)
Plaintiff had presented no evidence of any treatment
between June 15, 2012, and August 1, 2012, or
between August 2012 and October 23, 2012, both
during the elimination period; and
(viii) Plaintiff’s move to Arizona “would entail and indicate
capacity for higher level/critical thinking, problemsolving, follow-through, focus and attention to detail.”
(Id. at 515-17). Accordingly, she determined that Plaintiff’s files “[did] not
support loss of function as of the last day worked, nor as of 6/24/12 and
beyond.” (Id. at 517). As she noted, “[d]espite the reported severity, intensity
and duration of symptoms and impact on function, [Plaintiff’s] complaints
[were] chronic, inconsistently reported[,] and significantly in excess of clinical
and diagnostic findings,” with noted gaps in treatment. (Id.).
On March 13, 2013, Stacy Bennett, a Registered Nurse at Unum,
reviewed Plaintiff’s file, including records from Drs. Husar, Narasimhan, Miric,
Woodruff, Grout, Mintz, Byun, Brighton, Craig, Cramer, Meyer, Moyer and PA
Isom, in addition to Plaintiff’s physical therapy records and Unum’s reviews by
Dr. Black, Dr. Kletti, and Nurse Deane-Loranger. (LTD Cl. 520-28). Nurse
Bennett reviewed these records in detail and summarized that Plaintiff reported
a “multi-year history of fluctuating memory/cognitive dysfunction with 2 noted
‘flares’ of worsening cognitive symptoms coupled with headaches, speech
disturbance and heightened stress/anxiety.” (Id. at 523-27). She further
noted that Plaintiff had undergone “extensive evaluation by specialty
providers that [ ] included diagnostic, laboratory, and neuropsychological
30
testing with no clear etiology of symptoms found, though symptoms [were]
noted to be exacerbated by stress [and] anxiety.” (Id. at 527). Nurse Bennett
also observed that “[n]europsychological testing [was] noted to demonstrate
memory/cognitive issues, [but Plaintiff] ha[d] consistently been documented to
demonstrate minimal to no deficits on bedside (office) testing.” (Id.). She
concluded that while Plaintiff reported significant cognitive dysfunction,
“current medical documentation on file [did] not reflect the level of
symptomatology that [Plaintiff] report[ed] and [Plaintiff was] noted to have
limited to no impairment in her daily functioning.” (Id. at 528).
Dr. Jana Zimmerman, a clinical neuropsychologist with Unum, first
reviewed Plaintiff’s file in the context of her short-term disability claim on
March 26, 2013. (STD Cl. 521-30). Dr. Zimmerman reviewed and summarized
in detail records from Drs. Moyer, Craig, Cramer, and Meyer, and the review
from Nurse Murphy (id. at 523-27), and she ultimately concluded that the
proffered restrictions and limitations for Plaintiff’s cognitive and psychiatric
conditions were not supported by the medical evidence. (Id. at 527). Dr.
Zimmerman noted that Plaintiff’s doctors frequently relied on Plaintiff’s own
representations of her condition, but that Plaintiff “inconsistently reported to
misrepresented her medical history, current cognitive symptoms and other
issues critical to an accurate assessment across providers.” (Id.). For example,
Plaintiff (i) provided conflicting accounts of the timing of the onset of her
symptoms; (ii) inconsistently cited her exposure to mold around the time of
onset; and (iii) inconsistently reported her symptoms leading to her job loss.
31
(Id. at 527-28). Dr. Zimmerman further noted that the neuropsychological
exams did not assess effort, while “two embedded SVTs [symptom validity tests]
in the intelligence domain were failed.” (Id. at 528). Dr. Zimmerman
concluded, based on the inconsistent patterns of results within and among
tests — including the lack of “consistent direction of change in intellectual
performances across exams” — in conjunction with Plaintiff’s varied reporting
of her symptoms and medical history, that the testing did not represent
Plaintiff’s true abilities. (STD Cl. 528-29).
d.
Unum’s First Roundtable and Follow-Up
Unum held its first internal conference, or “Roundtable,” on Plaintiff’s
long-term disability claim on April 24, 2013. (LTD Cl. 840-41). The notes from
the Roundtable recapitulated the history of Plaintiff’s condition — beginning in
2009, involving two “flares,” and leading Plaintiff to cease working on May 18,
2012. (Id. at 840). The notes further reflected Dr. Meyer’s treatment, and
indicated that while Plaintiff “report[ed] significant cognitive deficits,” she
“provide[d] inconsistent reports of [her] activities,” rendering the “medical
picture” unclear. (Id. at 840-41).
i.
Unum’s Field Investigator Interview
Two days after the Roundtable, on April 16, 2013, Plaintiff met with
Linda Moses, Unum’s claim investigator, at Plaintiff’s attorney’s office. (LTD
Cl. 789-97). Plaintiff informed Moses that “as a result of [her] cognitive
dysfunction, she [could] no longer perform her job, and due to the pain of [her]
fibromyalgia, she [could not] work at any job.” (Id. at 789). Moses noted that,
32
during the course of the interview, Plaintiff’s “speech was halted at times as if
she were trying to formulate the right words and sentences,” and “[w]hen she
could not remember a word or an answer, she would close her eyes and
appeared to struggle and be slightly frustrated.” (Id. at 789-91). Moses
observed that Plaintiff’s “memory appeared poor, and [Plaintiff] stated that
there [were] blocks of her memory that were gone, [e.g.,] she d[id] not remember
her college graduation.” (Id. at 791). Also, Plaintiff reportedly could not
remember certain doctors’ names, her prior medications, or her children’s
birthdates. (Id.).
Plaintiff advanced “Version 2.0” of the history of the onset of her
symptoms; she informed Moses that “three years prior to 2012, she and her
daughter became very ill and found that she had been exposed to mold from
her home.” (LTD Cl. 792). While Plaintiff’s then-supervisor at Time Warner
“was very understanding and allowed [Plaintiff] to work from home and
decrease her hours” during that time, Plaintiff began “experiencing more severe
headaches, muscle and joint pain and periods of blackouts” around January
2012, i.e., during her second flare. (Id.). Plaintiff stated that her work suffered
as a result, and her supervisor referred her to the Human Resources
Department, who in turn informed her that she must go on short-term
disability. (Id.). As Moses recorded, Plaintiff moved to Arizona in July or
August of 2012, “because a doctor at Mayo Clinic thought it could help her.”
(Id. at 793). She indicated that her 17-year-old son, who previously lived with
her ex-husband in Florida, moved to Arizona to assist her. (Id.).
33
Moses stated that Plaintiff had received no diagnosis or treatments, and
that she could not tolerate medications. (LTD Cl. 793-94). With regard to
restrictions and limitations, Plaintiff informed Moses that “her only doctor
restrictions [were] to do only what she [could],” and that “she must move
around or she [would] stop being mobile.” (Id. at 794). Plaintiff stated that her
doctors believed brain inflammation was causing her issues. (Id.).
With regard to her daily activities, Plaintiff informed Moses that she
could do grocery shopping “on good days,” but her son usually accompanied
her. (LTD Cl. 796). She also noted that while she continued to drive, she only
drove to medical appointments and for short errands; “[w]hen possible, her son
[drove] her.” (Id.). Otherwise, on a good day, Plaintiff would help her daughter
get ready for school in the morning, do light cleaning and housework, and go to
the gym to use a stationary bicycle; on bad days, she would stay in bed. (Id. at
795-96).
ii.
Unum’s Requests for Additional Information and
Reviews of That Information
Following the Roundtable, on April 30, 2013, Unum also sent a letter to
Dr. Meyer, asking whether (i) he certified psychiatric impairment; (ii) he would
provide psychiatric restrictions and limitations; (iii) he recommended mental
health treatments; and (iv) Plaintiff’s condition might improve with regular
care. (LTD Cl. 848-49). Dr. Meyer initially responded on May 28, 2013,
indicating that he had no opinion as to psychiatric impairment, that the
etiology of Plaintiff’s conditions was unknown, and that he recommended 90
34
minutes of mental health treatment once per week, though he did not know if
Plaintiff’s condition would improve. (Id. at 978-79).
Dr. Meyer sent a further letter a few days later, on June 3, 2013; in it, he
indicated that he had engaged in psychotherapy with Plaintiff on a weekly basis
from October 2012 through May 2013. In that setting, he observed Plaintiff
“struggle with memory deficits, word finding difficulties and overall major
cognitive functioning that would make it difficult for her to maintain
employment at even a low level skilled position.” (LTD Cl. 1048). Dr. Meyer
stated that Plaintiff benefited from psychotherapy, as it allowed her to “vent
frustration [about] her condition, unknown etiology, and inability to function at
her previous level,” and he further noted that “[i]t appear[ed] as if her severe
cognitive deficits [were] due to some unknown physical etiology as she was
exposed to toxic black mold, ha[d] other debilitating symptoms (see medical
chart), and again, etiology [was] unknown.” (Id.).
The Roundtable participants also followed up with Dr. Husar and Dr.
Craig, asking each whether, in light of the time that had passed since his
consultation, he deferred comment on Plaintiff’s restrictions and limitations to
her current treating physician, and if not, what Plaintiff’s restrictions and
limitations were. (LTD Cl. 855-56, 874-75). 18 Dr. Husar did not defer to
Plaintiff’s current physician, and wrote that Plaintiff had “significant cognitive
dysfunction on neuropsychological testing and [was] attending cognitive
18
Unum’s letters did not state the identity of the referenced treating provider, nor was
that information made clear by the notes from the Roundtable.
35
rehabilitation.” (Id. at 862). Dr. Craig stated: “As I am sure you have a copy of
my original evaluation of this patient and the 2012 update/re-evaluation you
can see she has severe cognitive and memory impairments which obviously
preclude her from resuming her prior work as well as any other work duties.”
(Id. at 874).
On June 6, 2013, Dr. Black conducted another review of Plaintiff’s file,
which had been supplemented by this additional information. (LTD Cl. 98285). Dr. Black reviewed records and correspondence from Drs. Moyer, Meyer,
Craig, Husar, and Woodruff, in addition to Plaintiff’s CT and PET scans, her
EEG report, and the Unum reviews by Drs. Zimmerman, Kletti, Black, and
Nurse Murphy. (Id. at 983-84). Dr. Black first noted (i) Dr. Husar’s finding of
“significant cognitive dysfunction on [neuropsychological] testing” and (ii) Dr.
Craig’s finding of “severe cognitive and memory impairments which preclude[d]
[Plaintiff] from her prior work as well as any other work duties.” (Id. at 983).
Again, Dr. Black concluded that physically-based cognitive restrictions and
limitations were not supported. (Id. at 984). He based this determination on
the medical evaluations and raw data, finding “no cognitive/emotional data
which provide[d] consistent and compelling support for cognitive or M&N
[mental and nervous] R&Ls [restrictions and limitations].” (Id.). Dr. Black
concurred with Dr. Zimmerman’s determination that the neuropsychological
testing conducted by Dr. Craig was “highly limited and omit[ted] measures of
performance validity and personality testing,” and that the testing conducted
36
by Dr. Moyer was “noncredible due to a significant over-reporting/exaggeration
of generalized physical malaise and cognitive complaints.” (Id. at 984-85).
Separately, Dr. Black noted Plaintiff’s ability to plan and execute a crosscountry relocation and to parent her two children; he deemed the discrepancy
between Plaintiff’s asserted impairments and her apparent functional capacity
“implausible,” and stated that Plaintiff’s symptoms could not “be logically
explained on the basis of a physically-based cognitive condition.” (LTD
Cl. 985). For all of these reasons, Dr. Black disagreed with Dr. Craig’s
assessment of a physically-based cognitive impairment. (Id.).
In the wake of this review, on June 7, 2013, Dr. Black sent another letter
to Dr. Craig, stating that Unum’s reviews of Plaintiff’s file had “not found
credible and consistent evidence of a cognitive condition based on a physical
etiology,” as there had been “no neurodiagnostic evidence of a neurologic
condition which could plausibly produce ongoing cognitive deficits.” (LTD
Cl. 987). Accordingly, Dr. Black asked whether, given that Dr. Craig had last
treated Plaintiff more than a year earlier, on May 11, 2012, Dr. Craig would
defer a determination of Plaintiff’s work capacity to her current providers; if
not, Dr. Craig was asked to provide his basis for finding ongoing impairment,
along with the more likely etiology of the deficits, whether neurological or
behavioral. (Id. at 987-88). On June 13, 2013, Dr. Craig wrote back, largely
without responding to Unum’s questions; he stated that he would not defer to
any current provider unless they were not employed by Unum and further
wrote, in response to the request for information concerning the most likely
37
etiology of impairment, “[a]re you serious? Just look at her scores now and
then the level at which she functioned prior to onset.” (Id. at 1014). At the
bottom of the page, Dr. Craig wrote, “I believe you are only trying to deny
benefits however you can.” (Id.). On June 17, 2013, Dr. Black made an
administrative note in Plaintiff’s file that Dr. Craig “failed to provide substantive
responses to any of the narrative questions,” and “basically communicated
indignation and an impression that Unum is trying to deny benefits however
[it] can.” (Id. at 1019). Dr. Black further noted that “[t]he additional
information [did] not resolve the difference of opinion or cause [Dr. Black] to
alter [his] impressions as stated in the Written File Review.” (Id.).
A month later, on July 23, 2013, Dr. Black sent a letter to Dr. Meyer,
asking whether Dr. Meyer’s opinion of no “psychiatric impairment” was
retroactive to the date of first treatment in 2012. (LTD Cl. 1129). On July 25,
2013, Dr. Meyer responded that his opinion was retroactive to that date. (Id. at
1142-43). 19
On June 7, 2013, Dr. Nancy Heimonen, a board-certified OB/GYN
affiliated with Unum, completed a review of Plaintiff’s file. (LTD Cl. 990-96).
Dr. Heimonen reviewed in detail Plaintiff’s treatment with Drs. Husar,
Narasimhan, Byun, Brighton, Woodruff, and PA Isom (id. at 992- 93),
ultimately concluding that Plaintiff’s records did not support restrictions and
19
Plaintiff makes much of Unum’s failure to ask Dr. Meyer whether he certified cognitive
impairment. (Pl. Br. 21). However, as Plaintiff simultaneously acknowledges, Dr. Meyer
had previously certified cognitive impairment (id.; see also LTD Cl. 173), and it is
equally, if not more, plausible that Unum was relying on this earlier certification rather
than being “deceptive.”
38
limitations (id. at 993-94). As she explained, the only “physical medical
providers” supporting Plaintiff’s inability to work were neurologists Dr. Husar
and Dr. Narasimhan; however, Dr. Husar had last treated Plaintiff almost a
year earlier, in August 2012, and “the basis of his ongoing support for
[Plaintiff’s] inability to work [was] uncertain.” (Id. at 994). Further, Dr.
Narasimhan had advised that Plaintiff could not work due to memory issues
but should be re-evaluated in one month, though it was not clear that Plaintiff
had ever followed up with her. (Id.). Moreover, repeated testing had not
yielded a physically-based etiology for Plaintiff’s complaints, and the testing
that had been performed had come back normal. (Id.).
As Dr. Heimonen observed, while medical evidence supported Plaintiff’s
chronic pain/fibromyalgia diagnosis, “patients with fibromyalgia [were]
typically encouraged to stay active with [physical therapy], aqua therapy,
stretching programs and activities … and it [would be] unusual for this
condition in and of itself to preclude primarily seated work capacity.” (LTD
Cl. 994). Further, while Plaintiff had reported severe headaches, her records
indicated that she did not use any medication for these; Dr. Heimonen deemed
“[t]he lack of need for headache mediations [ ] inconsistent with headaches that
interfere with ongoing physical functional capacity.” (Id. at 994-95). 20
20
The Court observes that Dr. Heimonen did not acknowledge Plaintiff’s claim that she
was intolerant to medications previously prescribed, rendering questionable her
conclusion on this basis that Plaintiff did not “need” pain medications. (See, e.g., LTD
Cl. 793-94; see also id. at 317 (Dr. Brighton’s records indicating “[n]ausea and
vomiting” as adverse reactions to a number of medications)).
39
Dr. Heimonen also identified a number of inconsistencies in the records
of Plaintiff’s treating medical professionals, including: (i) gaps in Plaintiff’s
medical records that were “inconsistent with her reports of three years of
cognitive problems and pain,” including during the elimination period; (ii) a
lack of clarity as to “what about her condition changed as of 5/18/12 to
preclude work capacity”; (iii) an absence of medical records documenting
Plaintiff’s cognitive rehabilitation as directed by Dr. Husar; (iv) a lack of
evidence that Dr. Husar, after diagnosing fibromyalgia, recommended any
treatment; (v) Plaintiff’s failure to follow up with PA Isom regarding treatment
recommendations for fibromyalgia, which also was “inconsistent [with]
functionally limiting pain or fatigue complaints”; and (vi) Plaintiff’s general
“lack of need for pain medications.” (LTD Cl. 995). Dr. Heimonen found
Plaintiff’s activities of daily living to be incompatible with her “functionally
limiting pain complaints,” and concluded that there was “insufficient evidence
to support that [Plaintiff] ha[d] a physically based medical condition associated
with [restrictions and limitations] that would preclude the physical demands”
of her occupation. (Id.).
Dr. Heimonen then contacted Dr. Husar, articulating her understanding
of the physical, cognitive, and mental- and stress-related demands of Plaintiff’s
occupation, and stating that she did not find evidence of a physically-based
medical condition precluding Plaintiff from undertaking those demands. (LTD
Cl. 999-1000). Dr. Heimonen asked if Dr. Husar agreed or would defer to
Plaintiff’s treating provider; if not, the letter asked what part of Plaintiff’s
40
medical condition precluded those occupational demands. (Id. at 1000). In
response, Dr. Husar indicated that he would defer to Plaintiff’s treating
provider. (Id. at 1088).
Dr. Heimonen sent Dr. Narasimhan a similar letter. (LTD Cl. 1005-07).
In response, Dr. Narasimhan did not agree or defer to Plaintiff’s treating
providers; she indicated that Plaintiff had “memory problems secondary to
depression/cognitive dysfunction as evidenced in neuropsychology evaluation,”
in addition to suffering from fibromyalgia. (Id. at 1029). She offered nothing,
however, concerning the etiology of these conditions.
On June 20, 2013, another Unum reviewer, neuropsychologist Malcolm
Spica, evaluated Plaintiff’s file. (LTD Cl. 1062-66). Dr. Spica relayed Dr.
Craig’s assessment of permanent cognitive impairment and Dr. Meyer’s
diagnosis of adjustment disorder, and contrasted these with Dr. Zimmerman’s
determination that Plaintiff’s cognitive restrictions and limitations were not
supported. (Id. at 1062-63). Dr. Spica reviewed Plaintiff’s records from Drs.
Husar, Craig, and Moyer, and stated that he found “no medical or
neuropsychological support for a physically-based cognitive disorder,” as
Plaintiff’s “test data [was] inconsistent across evaluations and [was] of
questionable validity.” (Id. at 1063-64).
As Dr. Spica reasoned, the 2009 testing administered by Dr. Craig was of
dubious validity, as no symptom validity testing or mood testing had been
involved, and Plaintiff’s “pattern of performance” on the testing had not been
“consistent with a specific neurocognitive syndrome,” but rather, had been
41
“consistent with lapses in effort/motivation.” (LTD Cl. 1064). With regard to
Dr. Craig’s 2012 testing, Dr. Spica stated that it “was again unusually brief
and devoid of effort/motivation testing or mood status assessment.” (Id.).
There, too, Plaintiff’s “pattern of performance did not correspond to a
neuropsychological syndrome other than lapses in effort,” and her inconsistent
performance “suggested non-neurologic etiology[, e.g.,] she provided impaired
performances on some tasks of verbal memory, and intact performances on
additional tasks,” including “Memory for Stories” and “Word Selective
Reminding Test.” (Id.).
Dr. Spica next addressed what he termed Dr. Moyer’s “idiosyncratically
brief examination,” which he deemed “tailored to minimally address the
shortcomings in Dr. Craig’s examinations; [her] use of obsolete and lowsensitivity symptom validity measures appear[ed] unusual.” (LTD Cl. 1065).
Dr. Spica noted that Dr. Moyer’s testing results “had little correlation with
those of Dr. Craig,” further suggesting “problems with motivation/effort,” and
determined that as Plaintiff had “no known neurological etiology, the most
likely cause for her non-plausible pattern of scores [was] suboptimal effort.”
(Id.). Moreover, Plaintiff’s test results were “well within normal limits across
neurocognitive domains including on tasks known to be sensitive to cerebral
compromise,” such as general intellect, abstract reasoning, commonsense
reasoning, mental speed, visual analysis, mental sequencing, new learning,
memory for verbal material, and memory for visual material. (Id.). Accordingly,
Dr. Spica determined that Plaintiff’s testing was “not consistent with a
42
debilitating neurocognitive disorder,” and he identified “no medical or
neuropsychological support for a physically-based cognitive disorder,” given the
testing data’s inconsistency across evaluations and questionable validity. (Id.).
On July 17, 2013, Dr. Alan Neuren, a board-certified neurologist and
psychologist affiliated with Unum, reviewed Plaintiff’s file, attempting to
reconcile the conclusions of Plaintiff’s treating physicians and Unum’s Dr.
Heimonen. (LTD Cl. 1110-16). Dr. Neuren reviewed records of Drs. Mintz,
Husar, Narasimhan, Craig, Grout, Meyer, Moyer, Miric, Byun, Brighton,
Woodruff, and PA Isom, among others, in addition to Plaintiff’s diagnostic
studies. (Id. at 1111). Dr. Neuren summarized Plaintiff’s records in detail (id.
at 1111-15), ultimately concluding that Plaintiff had presented “no significant
findings or findings that would either account for her complaints or rise to a
level of impairment” (id. at 1115-16).
Dr. Neuren noted that Plaintiff’s neuropsychological testing had been
“limited, not comprehensive, and not credible,” with no validity testing and
“marked variability both with areas of significant improvement and also
significant decline,” rendering the testing as a whole “not credible or consistent
with a dementing process.” (LTD Cl. 1116). Dr. Neuren also deemed it not
credible that, with her alleged cognitive complaints, Plaintiff would be capable
of living independently, caring for her children, or planning and executing a
cross-country move. (Id.). Moreover, Dr. Neuren noted, “repeated neurological
evaluations including [by] the Mayo Clinic [had] failed to demonstrate the
43
presence of any neurological/organic/metabolic or other physically based
condition that would result in cognitive problems.” (Id.).
e.
Unum’s Denial of Plaintiff’s Long-Term Disability Claim
In its initial decision denying long-term benefits, dated August 14, 2013,
Unum stated that it had “determined [Plaintiff] was able to perform the duties
of her own regular occupation prior to the end of the claim elimination period,”
and thus, “[b]ecause she was not continuously disabled throughout the claim
elimination period, benefits [were] not payable.” (LTD Cl. 1188-89). In
supporting its decision, Unum noted that “[t]he information reviewed reflected
that [Plaintiff] ha[d] been extensively worked up in New Jersey and Arizona with
no significant findings that would either account for her above reports or rise to
a level of impairment.” (Id.).
Unum further stated that “[t]he available records [did] not provide
sufficient or consistent evidence of neurocognitive dysfunction that rises to a
level of impairment.” (LTD Cl. 1189). In this regard, Unum explained that
Plaintiff’s November 2012 examination by Dr. Moyer “revealed incomplete
validity/effort,” and “[s]uch lapses in effort [could] also account for her previous
examinations from Dr. Craig (when effort was not assessed).” (Id.). Unum
stated that Dr. Craig’s findings were “not supported by the clinical data,” and
restrictions and limitations based on Plaintiff’s neurocognitive complaints were
“not supported.” (Id.).
Moreover, Unum pointed to Plaintiff’s ability “to live independently and
manage caring for her children,” along with her relocation to Arizona and
44
“ability to continue to function in a new area despite her reported cognitive
problems.” (LTD Cl. 1189). As Unum stated, “[i]t [was] inconsistent that an
individual with true cognitive disorder would be able to engage in such
activities.” (Id.).
Finally, Unum pointed to “repeated neurological evaluations including
those conducted at the Mayo Clinic,” all of which “failed to demonstrate the
presence of any neurological/organic/metabolic or other physically based
condition that would result in cognitive problems.” (LTD Cl. 1189). Unum
stated that “impairment related to any behavioral health condition” also was
not supported by Plaintiff’s medical information, and “no attending physician
[was] opining any restrictions or limitations relative to any behavioral health
condition.” (Id. at 1189-90).
Overall, Unum determined that Plaintiff’s “reports of impaired function
[were] inconsistent when compared with her actual findings on extensive
diagnostic testing and her known activities,” and Unum had “concluded she
was not impaired from performing her occupational demands as a Senior
Programmer due to any physical or cognitive condition from the date she
stopped working on May 18, 2012 through the end of her claim elimination
period which ended on November 16, 2012.” (LTD Cl. 1190).
Unum advised Plaintiff that she had a right to appeal from this decision.
The portion of the denial letter concerning requests for appeal indicated that
Plaintiff would “need to submit a written letter of appeal outlining the basis for
[her] disagreement,” which letter should “include any additional information
45
[she] would like considered,” including written comments, documents, or other
information. (LTD Cl. 1191-93).
f.
Plaintiff’s Appeal from Unum’s Denial of Her Claim
On January 20, 2014, Plaintiff appealed Unum’s adverse determination
(LTD Cl. 1233-36); along with her appeal, she submitted a disability evaluation
from psychologist Dr. Robert Crago (id. at 1237-50), along with copies of two
articles authored by Dr. Crago (id. at 1251-74), and a letter from Dr. Moyer (id.
at 1275). Plaintiff’s appeal letter argued that “[d]ue to her objectivelydocumented cognitive deficits, [Plaintiff] was and remain[ed] unable to perform
the material and substantial duties of her regular occupation as a Senior
Programmer Analyst.” (Id. at 1233). Plaintiff “believe[d] that Unum [was] a
conflicted fiduciary whose financial conflicts of interest drove the decision to
deny her claim,” and she provided a list of questions and demands for
information to Unum including, inter alia, (i) copies of internal claims
department spreadsheets referring to her short- or long-term claims;
(ii) information and data pertaining to certain terminology used during Unum’s
claims process, including, among others, “liability acceptance rate,” “net
termination ratio,” and “historic pay rate”; (iii) the amount of reserves set aside
by Unum for Plaintiff’s claim prior to denial; (iv) the number of claims reviewed,
and statistics of approval or denial, for a number of Unum medical
professionals involved in Plaintiff’s case; and (v) the policies and procedures
regarding “the weight to be given to the opinions of a claimant’s treating
physicians when Unum evaluates a disability claim.” (Id. at 1233-35). Plaintiff
46
expressed her belief that her “file [was] replete with information confirming her
ongoing disability due to an organic/physical cognitive disorder,” and echoed
Dr. Craig’s conclusion that Unum was “simply trying to deny her claim however
it [could].” (Id. at 1235).
Dr. Crago submitted a disability evaluation of Plaintiff dated December 2,
2013; his evaluation was based solely on a review of Plaintiff’s medical records,
with no examination conducted of Plaintiff. (LTD Cl. 1237-50). Dr. Crago first
described his specializations, and stated that “[b]ecause of [his] training,
background, and experience in the area of assessment and treatment of
individuals who have been exposed to toxic molds, [he was] qualified to address
these issues in the case of [Plaintiff].” (Id. at 1237). Dr. Crago then recounted
the observations of a number of Plaintiff’s treating physicians, commenting on
the reasons he believed their notes corresponded to toxic mold exposure. (Id.
at 1238-43). For instance:
•
With regard to Dr. Miric’s observations that Plaintiff had
five years of memory problems, but that Dr. Miric
wanted to rule out a number of conditions, including
demyelating disease, organic brain syndrome, and
somatization disorder, Dr. Crago wrote, “[i]t is
noteworthy that … her presentation was confusing
enough to suspect multiple problems and to make
differential diagnosis difficult. This is typical of cases of
toxicity.” (Id. at 1238).
•
Based on PA Isom’s reference to a family history of
autoimmune diseases, Plaintiff’s complaints of
“multiple symptoms in multiple organ systems,” and
diagnoses including fibromyalgia and arthralgias, Dr.
Crago commented, “[t]his is the classic presentation of
toxicity.” (Id. at 1238-39).
47
•
With respect to Plaintiff’s abnormal EEG testing, Dr.
Crago noted, “[d]ysregulation of EEG activity is common
in toxic states including seizures, diffuse and or focal
slowing, etc.” (Id.).
•
After evaluating Dr. Brighton’s comments regarding
Plaintiff’s joint and muscle pains, headaches, and
reference to black mold exposure, Dr. Crago wrote, “I
met many patients who were evaluated at the Mayo
Clinic seeking an explanation for their symptoms before
they themselves knew the problem was mold…. It is
still not unusual for toxic patients to be viewed as
psychiatric patients when their physicians are
unfamiliar with the effects of toxic mold.” (Id. at 1240).
•
In light of Dr. Woodruff’s fibromyalgia diagnosis, Dr.
Crago stated that “[o]ne out of five toxic mold patients
can be diagnosed as having fibromyalgia.” (Id.).
In his discussion, Dr. Crago then stated:
I believe there is confusion in regards to the etiology of
[Plaintiff’s] problems because the possible effects of
exposure to toxic molds [were] not addressed in her
previous medical care by anyone who had proper
education and background training in this area.
[Plaintiff] presents with classic symptoms of an
individual who was exposed to toxic mold. She also
presents with a medical profile of an individual who
would be more vulnerable to exposure to toxic molds.
(LTD Cl. 1243). Dr. Crago noted that “the most common clinical presentation
[of exposure to toxic mold] is multiple symptoms of multiple organ systems,”
and stated that based on his research, “toxic mold patients presented with
multiple symptoms in all categories at a significantly higher level than [ ] other
medical patients.” (Id. at 1244). Dr. Crago concluded that Plaintiff’s
“symptoms [were] primarily organic/physical in nature and not due to mental
illness,” and stated that her condition would prevent her from performing the
regular duties of her occupation, as her symptoms would be variable and she
48
would “not be able to complete a normal work day work week without
significant interruptions or absences.” (Id. at 1244-45). With regard to
restrictions and limitations, Dr. Crago stated that Plaintiff would need to “lead
a rather disciplined life,” pacing herself to manage her lack of energy and her
stress, and would be required to “avoid exposure to common toxins.” (Id. at
1246).
In response to Unum’s critique of the tests administered by Dr. Moyer,
Dr. Crago expressed his belief that Dr. Moyer’s neuropsychological testing used
“a flexible battery [of tests] where one chooses the tests necessary for the
assessment of the presenting complaints,” which he deemed the “more
common practice” than a fixed battery of tests. (LTD Cl. 1246). Dr. Crago
further opined that patients’ performance on testing “in a quiet environment
with no distractions” often was not representative of their functioning “in a
natural environment.” (Id. at 1246-47).
In sum, Dr. Crago stated that Plaintiff’s “reported exposure to toxic
molds” and “history of autoimmune disease” accounted for her symptoms, and
he believed the cause of her ailments was physical, rather than due to mental
illness. (LTD Cl. 1247). Dr. Crago pronounced that he did not think Plaintiff
could ever return to her previous job. (Id.).
Clinical psychologist Dr. Moyer, in her supplemental submission, did not
conduct another evaluation of Plaintiff, but merely opined that “after reviewing
Dr. Crago’s evaluation, toxic exposure and/or autoimmune disorder seem[ed]
likely.” (LTD Cl. 1275). She further concurred in Dr. Crago’s assessment that
49
Plaintiff would not be able to return to her prior occupation, as she “would
expect [Plaintiff] to have problems in multi-tasking, meeting deadlines, and
remembering procedures, policies, assignments, passwords, etc.” (Id.). Dr.
Moyer also observed that “there was no compelling evidence that [Plaintiff]
attempted to ‘fake bad’ or malinger on tests of cooperation/motivation,” and
she recommended that Plaintiff continue her treatments for her resultant
anxiety and depression, and that Plaintiff “consult with a vocational
rehabilitation specialist to explore alternative careers.” (Id.).
g.
Unum’s Second Roundtable and Follow-Up Investigation
On January 23, 2014, Unum conducted a second Roundtable regarding
Plaintiff’s claims. (LTD Cl. 1335-37). The notes from the Roundtable indicated
that Unum had contacted Drs. Husar, Narasimhan, Meyer, Craig, and Grout.
(Id. at 1335). They further indicated that there was no evidence of medical
treatment between June 15 and August 1, 2012, or between August 12 and
October 23, 2012, yet sometime during this period, Plaintiff “planned and
executed a move with her 10 year old daughter from [New Jersey] to [Arizona].”
(Id. at 1335-36). The “medical discussion” portion of the notes stated that “the
premise for the appeal [was] the underlying etiology of reported cognitive
deficits,” with opinions from Dr. Crago and Dr. Moyer as to toxic mold
exposure. (Id. at 1337). The Roundtable participants then established two
issues to be addressed on review: (i) whether the evidence supported
restrictions and limitations as of Plaintiff’s date of disability; and (ii) whether
those restrictions and limitations would “prevent reliable sustained functional
50
activity” as of that date. (Id.). On January 28, 2014, following the Roundtable,
Nurse Murphy prepared a medical summary of Plaintiff’s file, noting
correspondence with Plaintiff’s physicians and their conclusions and
diagnoses. (Id. at 1338-41).
On January 28, 2014, Dr. Zimmerman conducted a second review of
Plaintiff’s file, noting that a number of additional neuropsychological records
and correspondence had been added since her March 2013 review, including
from Drs. Linehan, Craig, Meyer, Crago, and Moyer, and a summary by Nurse
Murphy. (LTD Cl. 1342-52). Dr. Zimmerman then recounted in detail the
documents and letters from those doctors (id. at 1344-47), and concluded that
the evidence, as supplemented, still did not support restrictions and limitations
as of the date of Plaintiff’s disability (id. at 1347).
As Dr. Zimmerman observed, the evidence “indicated [Plaintiff] had a
longstanding psychiatric history (although denied and/or misrepresented as
evident on comparison of psychiatric history to certain providers) that likely
involved cognitive symptoms”; she also noted Plaintiff’s Adderall and Xanax
prescriptions, which she presumed were for cognitive and anxiety-related
issues, respectively. (LTD Cl. 1347). Dr. Zimmerman noted that as of 2009,
Plaintiff “reattributed her symptoms from psychiatric to medical/physical
cause and/or secondary to medical conditions,” following which she underwent
a “several year series of specialty evaluations before and after work stoppage.”
(Id. at 1347-48).
51
In summary, Dr. Zimmerman stated that, despite seeing four
neurologists and two neuropsychologists, among other doctors, “the lack of
consistency in [Plaintiff’s] report was the defining factor.” (LTD Cl. 1348). Dr.
Zimmerman pointed to Plaintiff’s repeated reports to physicians that her work
performance had declined and she had been warned about potential
termination, whereas her supervisor indicated that while “they noticed she was
listless and weak with loss of energy,” there were no performance problems,
warnings, or accommodations. (Id.). Similarly, Plaintiff provided inconsistent
reports of her past medical history and the timing of her onset of symptoms;
notably, she informed Dr. Miric in 2009 that her memory problems had started
five years earlier, whereas by 2012, she told multiple providers that they had
begun in late 2009. (Id.). Moreover, Dr. Zimmerman noted, Plaintiff provided
inconsistent reports to Mayo Clinic providers within a matter of days; while
Plaintiff told Dr. Brighton that she suspected black mold exposure as a cause
of her symptoms, and also mentioned “toxoplasmosis with anemia” during
childhood, just one week later, Dr. Woodruff was told that neither Plaintiff nor
her providers had identified any antecedent event or trauma. (Id. at 1349).
Dr. Zimmerman further observed that while Dr. Husar, seen on Plaintiff’s
last day of work in May 2012 and during the following month, recommended
cognitive rehabilitation — and Dr. Craig echoed this — Plaintiff apparently did
not seek such treatment until she had been out of work for almost two months.
(LTD Cl. 1349). Additionally, Dr. Zimmerman noted, while Plaintiff referenced
flares occurring from October 2009 to January 2010, and from February to
52
June 2012, this suggested “the [second] flare started a few months before work
stoppage and ended less than a month after [date of disability],” rendering
suspect Plaintiff’s claim of disability throughout the entirety of the elimination
period. (Id. at 1349-50).
With respect to Dr. Crago’s toxic mold assessment, Dr. Zimmerman
remarked that it “largely rested upon the assumption [that Plaintiff] had been
exposed to toxic mold as she reported,” though Dr. Zimmerman deferred
further analysis on the substance of the alleged exposure to Dr. Charles
Thurber, who would also review Plaintiff’s claim on appeal. (LTD Cl. 1350).
Nonetheless, Dr. Zimmerman noted, Plaintiff’s “report of toxic mold exposure
[was] inconsistent among providers,” given that (i) Plaintiff informed Dr. Moyer,
in November 2012, that she was exposed around the time of onset of her
symptoms, whereas (ii) Plaintiff did not tell Dr. Woodruff, in February 2013,
about potential mold exposure. (Id.). Dr. Zimmerman further stated that Dr.
Crago’s analysis did not rest on any observation of Plaintiff, and his proffered
research publications “did not document robust research designs,” as study
participants’ effort, motivation, and truthfulness were not assessed. (Id. at
1350-51).
Accordingly, Dr. Zimmerman concluded that (i) Plaintiff “misrepresented
her medical history (including mold exposure and seizures) and symptoms
(including cognitive) between providers”; (ii) her neuropsychological test data
was “insufficient in scope to support a cognitive disorder”; and (iii) her results
within and across examinations were “inconsistent with a physiological
53
pattern.” (LTD Cl. 1351). Moreover, Plaintiff’s rehabilitation history was sparse
following her disability date, leading Dr. Zimmerman to conclude that
“psychiatric impairment near [date of disability] (5/18/12) [ ] through end of
the [elimination period] (11/16/12) was not consistently supported.” (Id. at
1351).
Finally, internal medicine specialist Dr. Charles Thurber reviewed
Plaintiff’s file and appeal (LTD Cl. 1364-69), after which he concluded that
(i) Plaintiff’s “physical conditions were not impairing” around her date of
disability, and (ii) there was not “evidence for an organic basis for her alleged
cognitive impairment” (id. at 1367). While noting that Plaintiff “consistently
reported cognitive memory problems and to a lesser extent headaches,” Dr.
Thurber noted that no etiology had been determined, and that Plaintiff’s
records did not “give additional information to support either diminished
functional capacity or investigative/examination support for pathophysiological
explanation for the various conditions that [Plaintiff] perceives as impairing.”
(Id. at 1367-68).
Moreover, Dr. Thurber noted, Plaintiff’s demonstrated functional capacity
was “at variance” with her reported symptoms; Dr. Thurber pointed to
Plaintiff’s ability to bike, walk, shop, drive, and move her daughter across the
country. (LTD Cl. 1368). Dr. Thurber also echoed other reviewers’ concerns
regarding Plaintiff’s inconsistent reports of the date of onset. (Id.).
With respect to the toxic mold issues, Dr. Thurber observed that, unlike
her daughter, Plaintiff had “no history of typical respiratory symptoms”
54
correlating to toxic mold exposure, and he considered “[t]he connection
between mold and cognitive disorder [ ] problematic and, therefore, of little
significance to her impairment allegations.” (LTD Cl. 1369). As Dr. Thurber
noted, Plaintiff’s treating physicians had not “engage[d] this as an idea that
definitely could have remotely cause[d] her cognitive problems,” even when
informed by Plaintiff of her perceived link, and he deemed Dr. Crago’s
assertions unsubstantiated by clinical facts. (Id.).
h.
Unum’s Denial of Plaintiff’s Appeal
On February 21, 2014, Unum issued its determination upholding its
earlier decision to deny Plaintiff’s long-term disability claim. (LTD Cl. 1373-81).
As Unum explained, “impairment was not supported for any condition or
combination of conditions from the date she stopped working, May 18, 2012,
through the end of her elimination period (November 16, 2012).” (Id. at 1374).
With regard to Plaintiff’s treatment prior to the end of the elimination
period, Unum stated that Plaintiff’s records “indicate[d] a long standing
psychiatric history,” given her 2009 prescriptions for Adderall and Xanax,
along with her referral to Dr. Miric by a psychiatrist. (LTD Cl. 1374). Unum
noted that Plaintiff only later began attributing her symptoms to a physical,
rather than a psychiatric, cause; even then, while she visited a number of
neurologists and neuropsychologists for “extensive cognitive work up[s],” no
etiology was determined. (Id.). As Unum also observed multiple times in its
determination, while Plaintiff reported suffering work performance,
correspondence with her employer contradicted this. (Id.; see also id. at 1376).
55
Unum further referenced Plaintiff’s re-evaluation by Dr. Craig, which
noted improvements in certain cognitive domains, alongside worsening of
others. (LTD Cl. 1375). And though Dr. Craig and Dr. Husar recommended
cognitive rehabilitation, Plaintiff “did not seek symptom relief/treatment for her
cognitive or psychiatric symptoms until she had been out of work almost two
months,” other than visiting Dr. Linehan — from whom she sought a diagnosis
rather than rehabilitation, based on a referral from Time Warner’s Employee
Assistance Program. (Id.).
Unum then discussed Plaintiff’s move from New Jersey to Arizona, along
with her “telephone contact with the disability benefits specialist [during which
she] indicated she was trying to coordinate going to a clinic in Arizona and
working with her insurance company.” (LTD Cl. 1375). According to Unum,
this “indicate[d] capacity for higher level critical thinking, problem solving,
follow through, focus and attention to detail.” (Id.). With respect to Dr. Moyer’s
neuropsychological evaluation, Unum stated that this “assessment did not
document a sufficient or valid evaluation of cognitive abilities and
personality/psychiatric status.” (Id. at 1376).
Next, Unum assessed Plaintiff’s records post-dating the elimination
period, first noting that while Plaintiff attributed her symptoms to black mold
while meeting with Dr. Brighton on February 19, 2013, she did not mention
black mold to Dr. Woodruff one week later. (LTD Cl. 1376). Further, while Dr.
Meyer referenced “observed memory, word finding and other unspecified
cognitive difficulties during sessions,” Plaintiff’s employer refuted any alleged
56
performance problems, and Plaintiff’s neuropsychological testing “did not
validate consistent evidence of cognitive impairment.” (Id.).
Unum then addressed Dr. Crago’s analysis — which, as noted, was
based only on medical reports and insurance documentation — noting that his
opinion “rested upon the assumption that [Plaintiff] had been exposed to toxic
mold as she reported,” an idea with which Plaintiff’s treating physicians had
not engaged. (LTD Cl. 1377). In its medical conclusion section, the Unum
determination indicated that no etiology for Plaintiff’s cognitive conditions had
been identified, and her records, “including normal neurological
examinations[,] [did] not support diminished functional capacity or the various
conditions [Plaintiff] report[ed].” (Id.). As the denial letter indicated,
“[Plaintiff’s] reports of impaired function [were] not supported by the available
medical evidence or her known activities,” and accordingly, Plaintiff was “not
limited from performing the material and substantial duties of her regular
occupation as of May 18, 2012.” (Id. at 1378).
3.
The Instant Action
On March 12, 2014, Plaintiff filed the instant matter in the District of
Arizona (Dkt. #1), and on September 23, 2014, the case was transferred to this
Court (Dkt. #61). On November 3, 2014, Plaintiff filed an Amended Complaint
(Dkt. #69), which Defendants answered on December 19, 2014 (Dkt. #84).
While the parties ultimately resolved Plaintiff’s short-term disability claim prior
to dispositive motion practice (see Dkt. #105), the parties opted to proceed to
the instant bench trial on the stipulated record, under Rule 52, for Plaintiff’s
57
long-term disability claim. Plaintiff filed her opening trial memorandum on
November 24, 2015 (Dkt. #110), and Defendants filed their opening
memorandum and opposition on January 12, 2016 (Dkt. #113). Plaintiff then
filed her opposition and reply on February 18, 2016 (Dkt. #115), to which
Defendants replied on March 2, 2016 (Dkt. #118), concluding briefing on the
Rule 52 motion.
B.
The Court’s Conclusions of Law
1.
The Standard of Review
“Judicial review of a plan administrator’s underlying benefits
determination is reviewed de novo unless … the plan grants the administrator
discretionary authority to determine eligibility for benefits or to construe the
terms of the plan.” Miles v. Principal Life Ins. Co., 720 F.3d 472, 485 (2d Cir.
2013) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
Where a plan affords the administrator “broad discretionary authority to
determine eligibility,” such benefits determinations “are reviewed under the
arbitrary and capricious standard.” Celardo v. GNY Auto. Dealers Health &
Welfare Trust, 318 F.3d 142, 145 (2d Cir. 2003). Under this standard, “a court
may not overturn the administrator’s denial of benefits unless its actions are
found to be arbitrary and capricious, meaning ‘without reason, unsupported by
substantial evidence or erroneous as a matter of law.’” McCauley v. First Unum
Life Ins. Co., 551 F.3d 126, 132 (2d Cir. 2008) (citing Pagan v. NYNEX Pension
Plan, 52 F.3d 438, 442 (2d Cir. 1995)). In this setting, “[s]ubstantial evidence
is ‘such evidence that a reasonable mind might accept as adequate to support
58
the conclusion reached by the [administrator and] … requires more than a
scintilla but less than a preponderance.” Celardo, 318 F.3d at 146 (quoting
Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir. 1995)).
However, while an administrator receives great deference where granted
discretionary authority, a court may take into consideration whether, as
argued here, “a benefit plan gives discretion to an administrator or fiduciary
who is operating under a conflict of interest.” Bruch, 489 U.S. at 115.
Specifically, as the Supreme Court has described, “[o]ften the entity that
administers the [benefits] plan, such as an employer or an insurance company,
both determines whether an employee is eligible for benefits and pays benefits
out of its own pocket,” which the Supreme Court deems a categorical conflict of
interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). In the event of
such a conflict of interest, “a reviewing court should consider that conflict as a
factor in determining whether the plan administrator has abused its discretion
in denying benefits; and [ ] the significance of the factor will depend on the
circumstances of the particular case.” Id.
Explaining further, the Glenn Court clarified that such conflict would not
require de novo review; rather, trust law — which guides evaluations of plan
administrators — would “continue[] to apply a deferential standard of review to
the discretionary decisionmaking of a conflicted trustee, while at the same time
requiring the reviewing judge to take account of the conflict when determining
whether the trustee, substantively or procedurally, has abused his discretion.”
Glenn, 554 U.S. at 111, 115. The Court declined to prescribe particular
59
burdens of proof or evidentiary rules, noting instead that judges should
consider the conflict as one “factor,” and “when judges review the lawfulness of
benefit denials, they will often take account of several different considerations
of which a conflict of interest is one.” Id. at 117.
As the Court noted, the conflict of interest factor “should prove more
important (perhaps of great importance) where circumstances suggest a higher
likelihood that it affected the benefits decision, including, but not limited to,
cases where an insurance company has a history of biased claims
administration.” Glenn, 554 U.S. at 117. In contrast, the conflict “should
prove less important (perhaps to the vanishing point) where the administrator
has taken active steps to reduce potential bias and to promote accuracy,”
which could consist of “walling off claims administrators from those interested
in firm finances, or [ ] imposing management checks that penalize inaccurate
decisionmaking irrespective of whom the inaccuracy benefits.” Id.
As the Second Circuit later held, in light of Glenn, “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, but does not make de
novo review appropriate.” McCauley, 551 F.3d at 133. Moreover, “[t]his is true
even where the plaintiff shows that the conflict of interest affected the choice of
a reasonable interpretation” of the terms of the plan. Id.; see also Durakovic v.
Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 139 (2d Cir. 2010) (“The weight
properly accorded a Glenn conflict varies in direct proportion to the likelihood
60
that the conflict affected the benefits decision.” (internal citation and alteration
omitted)).
2.
The Court Has Considered Unum’s Conflict of Interest in
Rendering Its Conclusions of Law
Here, it is undisputed that Unum was granted discretionary authority
under the terms of the Plan to determine eligibility for benefits. (See LTD Plan
45 (“The Plan, acting through the Plan Administrator, delegates to Unum and
its affiliate Unum Group discretionary authority to make benefit
determinations under the Plan.”)). Plaintiff argues, however, that Defendant
Unum faces a Glenn-type structural conflict of interest, as it both evaluates the
claims of insured Time Warner employees and ultimately pays long-term
disability benefits, following Time Warner’s payment of the first two years of
disability. (Pl. Br. 35). In contrast, Unum contends that there is, in fact, no
conflict of interest, as Time Warner is obligated to pay the first 24 months of
Plaintiff’s disability benefits. (Def. Br. 33). As Unum notes, the Plan caps
disability benefits for claims “primarily based on self-reported symptoms, and
disabilities due to mental illness” at that 24-month mark, requiring further
evaluations at that time prior to continuing benefits. (Id. (citing LTD Plan 26)).
Accordingly, Defendants suggest Plaintiff’s claim, if approved, would be cut off
at 24 months, and Unum would not be obligated to pay anything absent reapproval of her claim at that time.
Plaintiff has the better of this argument. As discussed above, Plaintiff
claimed benefits for “her ongoing disability due to an organic/physical cognitive
disorder,” rather than seeking a determination under the provision for self61
reported or mental illness-based symptoms. (See supra at 46-47). While
Unum may have believed Plaintiff’s claims were more appropriately categorized
under those umbrellas, its determination was made according to Plaintiff’s
theory of a physically based-condition, which — if approved — would have
yielded benefits beyond the two-year mark. Accordingly, Unum may not now
absolve itself of the conflict of interest that inheres in its duty to pay benefits
beyond the 24-month time period.
Beyond this, Plaintiff places great weight on Unum’s conflict of interest,
arguing that it is exacerbated by Unum’s history of biased claims handling and
by Unum’s incentive structure. (Pl. Br. 35-41). Plaintiff points to cases within
the Supreme Court and the Second Circuit referencing Unum’s oft-criticized
history of “abusive tactics,” and further contends that Unum’s incentive
structure “invites a substantial risk that the personnel involved in [Plaintiff’s]
claim would engage in the very conduct criticized by various courts.” (Id. at
40-41). Thus, Plaintiff argues, this Court should “give Unum’s conflict
substantial weight” in evaluating the denial of Plaintiff’s claim. (Id. at 41).
In response to Plaintiff’s contention that Unum has a biased history with
respect to claims administration, Unum states that the decisions cited by
Plaintiff are “not evidence, and courts will not automatically assume that
Unum has a biased history.” (Def. Br. 37). However, Defendants cite for this
proposition St. Onge v. Unum Life Ins. Co. of Am., 559 F. App’x 28, 31 (2d Cir.
2014) (summary order), in which the plaintiff “put forth no evidence that Unum
‘has a history of biased claims administration.’” Here, in contrast, Plaintiff has
62
put forth a number of documents that, she alleges, demonstrate Unum’s bias.
In addition, the Second Circuit’s earlier decision in McCauley speaks directly to
Unum’s controversial past:
First Unum is no stranger to the courts, where its
conduct has drawn biting criticism from judges…. Also,
First Unum’s unscrupulous tactics have been the
subject of news pieces on “60 Minutes” and “Dateline,”
that included harsh words for the company…. In light
of First Unum’s well-documented history of abusive
tactics, and in the absence of any argument by First
Unum showing that it has changed its internal
procedures in response, we follow the Supreme Court’s
instruction and emphasize this factor here.
551 F.3d at 137. As well, Plaintiff here introduces a number of exhibits
concerning Unum’s purportedly biased claims history and its incentive
structure, in order to persuade this Court that it should factor Unum’s
structural conflict of interest more heavily into its evaluation of Unum’s
determination.
With regard to the extra-record exhibits introduced by Plaintiff,
“[g]enerally, a court’s review of an ERISA claim under the arbitrary and
capricious standard is limited to evidence in the administrative record, but the
court does have discretion to admit evidence outside the record upon a
showing of ‘good cause.’” Puri v. Hartford Life & Accident Ins. Co., 784 F. Supp.
2d 103, 105 (D. Conn. 2011) (citing Krauss v. Oxford Health Plans, Inc., 517
F.3d 614, 631 (2d Cir. 2008); Locher v. UNUM Life Ins. Co. of Am., 389 F.3d
288, 293-94 (2d Cir. 2004)). “Although a Defendant’s demonstrated conflict of
interest may be an example of good cause, a conflicted administrator does not
63
per se constitute good cause.” Wedge v. Shawmut Design & Constr. Grp. Long
Term Disability Ins. Plan, 23 F. Supp. 3d 320, 337 (S.D.N.Y. 2014) (internal
citation omitted). “The application of such a per se rule would improperly
‘allow additional evidence to be presented at the district court level in almost
every circumstance on the basis of a presumed conflict of interest’ and
‘eliminate the appropriate incentive for a claimant to submit all available
evidence regarding the claimant’s condition to the insurance company upon
first submitting a claim.’” S.M. v. Oxford Health Plans (N.Y.), Inc., 94 F. Supp.
3d 481, 506 (S.D.N.Y. 2015) (quoting Locher, 389 F.3d at 295), aff’d, 644 F.
App’x 81 (2d Cir. 2016) (summary order). When presented with extra-record
evidence, “District Courts have emphasized a plaintiff’s burden to allege facts,
with sufficient specificity, that would support the existence of ‘good cause’
permitting the admission of additional evidence beyond the administrative
record.” Krizek v. Cigna Grp. Ins., 345 F.3d 91, 98 n.2 (2d Cir. 2003).
Plaintiff presents a number of documents outside of the short- and longterm disability claims (and apart from the Plan itself), including:
(i)
An excerpt from the Diagnostic and Statistical Manual
of Mental Disorders – Fourth Edition (“DSM-IV”) (Pl.
Ex. 1);
(ii)
A “Report of the Targeted Multistate Market Conduct
Examination,” dated November 18, 2004, reviewing the
claims-related conduct of a number of insurance
companies, including Unum (Pl. Ex. 2);
64
(iii)
A document labeled “The Benefits Center Claims
Manual” and titled “Medical Peer-to-Peer Contact” (Pl.
Ex. 3); 21
(iv)
A National Academy of Neuropsychology
position
paper
regarding
“symptom
assessment” (Pl. Ex. 4);
(v)
A letter from Dr. Robert Crago, post-dating Unum’s
determination to uphold its denial of benefits on appeal
(Pl. Ex. 5);
(vi)
Documents relating to Unum’s compensation program
and Annual Incentive Plan (Pl. Ex. 6-7, 18);
(vii)
Documents detailing Unum’s internal method of
tracking new, pending, and closed benefits claims (Pl.
Ex. 8-11, 19);
(“NAN”)
validity
(viii) A NAN “position statement” regarding conflicts of
interest involved in contingency fee arrangements (Pl.
Ex. 12);
(ix)
Various portions of the transcript from the parties’ premotion conference in this case (Pl. Ex. 13, 15 (Dkt.
#91));
(x)
A one-page excerpt from a deposition of a Unum director
in a matter in the District of Arizona pertaining to
quarterly conferences with “benefits center personnel”
that included a financial overview of the company (Pl.
Ex. 14);
(xi)
Two redacted letters from Unum to claimants in other
matters requesting evaluation reports, treatment notes,
raw data, and other information (Pl. Ex. 16-17); and
(xii)
An internal memorandum (within then-Provident Life
and Casualty Insurance Company) from April 1995
regarding benefit claims and company financial
reserves (Pl. Ex. 20).
At the outset, the Court notes that Defendants challenge only Exhibits 1, 4,
and 5, contending that Plaintiff has not established “good cause” for their
21
While Plaintiff asserts — and Defendants do not appear to contest — that this is a
Unum document, the Court observes that nothing on the face of the document
indicates that it pertains to Unum’s own claims resolution process.
65
introduction into the record. With regard to Exhibit 1, the Court notes that
such information presumably would have been available to or known by the
claims administrator. Moreover, courts in this Circuit regularly consult and
cite commonly-known medical sources like the DSM. See, e.g., Critchlow v.
First UNUM Life Ins. Co. of Am., 378 F.3d 246, 263-64 (2d Cir. 2004).
Accordingly, the Court will consider Exhibit 1.
With respect to Exhibit 4, the Court finds that Plaintiff has failed to
establish good cause for its introduction, as NAN’s position on symptom
validity assessment is neither controlling nor persuasive authority for the
Court’s determination; while Plaintiff challenges Unum’s assessment of her
own physicians’ validity testing, she has not “allege[d] facts, with sufficient
specificity, that would support” admission of NAN’s position as evidence in this
case. S.M., 94 F. Supp. 2d at 506. And, with regard to Exhibit 5, Dr. Crago’s
post-appeal submission, the Court finds this “introduction of [ ] extra-record
evidence to challenge an administrator’s substantive determination [ ] not
appropriate.” Wedge, 23 F. Supp. 3d at 337 (internal citation omitted). This
case-specific information was not before the claims administrator at the time it
made its determination on appeal, and it does not speak to Unum’s potential
for a biased assessment; rather, it only introduces new arguments to contest
Unum’s determination on appeal, and thus, it should not play a role in this
Court’s assessment of whether that determination was arbitrary and
capricious.
66
As Defendants have not, however, challenged the documents pertaining
to Unum’s claims review process and its incentive structure, the Court has
considered them in assessing the weight of the role Unum’s conflict should play
in this matter. Moreover, Plaintiff has alleged specific facts supporting good
cause for consideration, including her contention that the terms of Unum’s
Performance Based Initiative (“PBI”) program provide bonuses of up to 25% for
the claims reviewers involved in Plaintiffs case; beyond that, Plaintiff claims
that Unum’s method of tracking claims management inappropriately
incentivizes employees to deny disability claims in order to bolster Unum’s
reserves, improve its financial performance, and concomitantly increase their
bonuses. (See Pl. Br. 37-39). Accordingly, as noted, the Court has considered
the additional exhibits submitted by Plaintiff.
Included among these documents is a “Report of the Targeted Multistate
Market Conduct Examination,” published in 2004 by the Maine Bureau of
Insurance, Massachusetts Division of Insurance, Tennessee Department of
Commerce and Insurance, and a number of other jurisdictions; the report
evaluated Unum and its related companies Paul Revere and Provident, finding
that they were engaged in a number of abusive claims procedures, including:
(i) “[e]xcessive reliance upon in-house medical professionals”; (ii) “[u]nfair
construction of attending physician or IME reports”; (iii) “[f]ailure to evaluate
the totality of [a] claimant’s medical condition”; and (iv) “[i]nappropriate burden
placed on claimants to justify eligibility for benefits.” (Pl. Ex. 2). From this, in
conjunction with cited cases within this Circuit excoriating Unum for their
67
procedures, the Court finds that Plaintiff has adequately demonstrated Unum’s
history of biased procedures, which the Court has taken into account in
evaluating Unum’s review here. However, the Court notes that Defendants
have presented a counter-example from the Maine Bureau of Insurance, dated
April 15, 2008, which quotes the Maine Insurance Superintendent as stating,
in the wake of the above-referenced regulatory review, that Unum provided an
example of “an insurer reforming its practices and becoming a model for other
insurers,” including “strong new processes and [a] resulting change in
corporate culture.” (Def. Ex. A). The Court determines that there is good cause
to admit this document as well, as it speaks to the same issues raised by
Plaintiff in her extra-record submissions. Thus, while the Court has
considered Unum’s biased history of claims processing, it has also taken into
account that at least one regulator has found Unum to have ameliorated its
prior abusive tactics.
With respect to Plaintiff’s presentation of documents pertaining to
Unum’s incentive structure and claims tracking and processing methodologies,
the Court finds these to constitute evidence that Unum has failed to “wall[] off”
its claims personnel from firm finances, a factor cited as “reduc[ing] potential
bias” by the Glenn Court. See Glenn, 554 U.S. at 117. However, the Court
does not accept this proffered evidence to mean that Unum allows its
processors to observe firm finances (e.g., by permitting a company stock ticker
to remain on the home page of their computers) in a manner intended to
incentivize them to deny claims. As Defendants argue, “very few companies
68
would continue to exist, decade after decade (as Unum has), if its business
model was to cheat its customers and their employees.” (Def. Br. 36). The
Court acknowledges the alternative position, as the Glenn Court did, that “[a]n
employer choosing an administrator in effect buys insurance for others and
consequently (when compared to the marketplace customer who buys for
himself) may be more interested in an insurance company with low rates than
in one with accurate claims processing.” 554 U.S. at 114. Thus, one could
surmise that an insurance company would reject more claims to improve its
own reserves and accordingly offer more competitive rates. Again, as with
Unum’s history of biased claims review, the Court has considered this evidence
presented by Plaintiff as a factor in its evaluation of Unum’s decision here.
As a result, while the Court evaluates Unum’s decision under the
arbitrary and capricious standard, it has — as required under Glenn and
McCauley — undertaken a more probing review of the record to determine
whether there is any indication that Unum’s structural conflict or incentive
program has motivated its decision in Plaintiff’s case. Following this review,
the Court has determined that despite its structural conflict of interest,
Unum’s determination was not arbitrary and capricious, and there is no
indication that any conflict of interest impacted its determination in Plaintiff’s
case. The Court’s conclusion is reflected more fully below in its analysis of
Unum’s “full and fair review,” including Unum’s thorough engagement with
Plaintiff’s medical records and its defensible and articulated conclusions from
those records.
69
3.
Plaintiff Received a Full and Fair Review
At base, Plaintiff claims that she was denied a full and fair review of her
long-term disability benefits claim because Unum’s reviewers “disregarded” her
attending physicians’ findings that she was disabled and improperly seized on
alleged inconsistencies in the record to deny her claim. (See generally Pl. Br.
21-35). In contrast, after reviewing the medical records discussed in detail
above, the Court finds that Unum’s determination was not “without reason,
unsupported by substantial evidence or erroneous as a matter of law,” Celardo,
318 F.3d at 146 (internal citation omitted), even taking into account Unum’s
structural conflict and the incentive-related documents presented by Plaintiff.
The Court observes that Plaintiff’s file was reviewed at least 13 times by three
nurses and seven different doctors. Although Plaintiff points out that all of
these reviewers were “eligible for bonuses under Unum’s Performance Based
Incentive (PBI) compensation program” (see Pl. Br. 37-38), as discussed above,
this is but one factor in the Court’s assessment of Unum’s full evaluation.
Moreover, as discussed in greater detail below, Unum acknowledged and
thoroughly evaluated the records from Plaintiff’s treating physicians, in
addition to Plaintiff’s subjective complaints, before denying her claim.
a.
Unum’s Requirement that Plaintiff Demonstrate the
Cause of Her Disability Was Not Arbitrary and Capricious
In their opening and opposition brief, Defendants contend that Plaintiff
failed, under the terms of the Plan, to submit proof of the cause of her
disability, and instead “assert[ed] merely that she was disabled due to alleged
cognitive dysfunction, without pointing to compelling medical, psychological or
70
neuropsychological evidence that she had a sickness or injury capable of
causing that dysfunction.” (Def. Br. 5). In reply, Plaintiff asserts that she was
not obligated to demonstrate the etiology of her cognitive dysfunction, but
rather needed only to demonstrate that she was “limited from performing the
material and substantial duties of [her] regular occupation due to sickness or
injury.” (Pl. Reply 2 (citing LTD Plan 18)).
Plaintiff relies in part on Dimopoulou v. First Unum Life Ins. Co., No. 13
Civ. 7159 (ALC), 2016 WL 612890, at *6 (S.D.N.Y. Jan. 26, 2016), which
deemed Unum’s “narrow focus” on a claimant’s “inability to meet diagnostic
criteria for the specific illnesses” claimed (namely, CFS and fibromyalgia) to be
arbitrary and capricious; as the court there determined, the long-term
disability plan at issue “define[d] ‘disability’ not in terms of satisfaction of
specific diagnostic criteria, but rather in terms of the performance limits one
faces in her occupation due to any sickness or injury.”
Significantly, however, Dimopoulou did not discuss whether the plan at
issue, through a different employer than Time Warner, required proof of the
cause of the cited disability, which is listed as a requirement for the proof of
claim in the Plan here. (See LTD Plan 8 (specifying that proof of claim “must
show … the cause of your disability”)). And while Dimopoulou may present, at
first glance, a persuasive case for disregarding all terms apart from the
definition of disability, the Court ultimately concurs with Defendants’
contention that Plaintiff was required to submit “competent proof of a cause for
her alleged cognitive dysfunction.” (Def. Br. 28).
71
As the Second Circuit has determined, an administrator “act[s] within its
discretion in requiring some objective evidence that [the claimant] was disabled
from performing in a sedentary capacity,” particularly where (i) Unum informed
Plaintiff that no submitted documentation had substantiated the criteria
involved in her diagnosis; and (ii) a requirement of objective medical evidence
was “not contradicted by any provision of [the administrator’s] own policy,
which provide[d] that an employee’s claim may be denied if she cannot ‘obtain
sufficient medical evidence to support’ her disability claim.” Hobson v. Metro.
Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009); see also Fitzpatrick v. Bayer Corp.,
No. 04 Civ. 5134 (RJS), 2008 WL 169318, at *10 (S.D.N.Y. Jan. 17, 2008)
(“[S]everal courts in this district have found that it is not unreasonable or
arbitrary for a plan administrator to require the plaintiff to produce objective
medical evidence of total disability in a claim for disability benefits.” (collecting
cases)); cf. Maniatty v. Unumprovident Corp., 218 F. Supp. 2d 500, 504
(S.D.N.Y. 2002) (“While plaintiff argues that the plan itself does not state that
objective evidence is necessary to establish disability, the plan does state that
‘proof’ of continued disability must be provided, and the very concept of proof
connotes objectivity.” (internal citation omitted)), aff’d, 62 F. App’x 413 (2d Cir.
2003) (summary order).
Here, the Court concurs in the necessity for objective medical evidence
beyond the assertions of Plaintiff’s physicians. As discussed in greater detail
below, the Court has determined that Unum’s discounting of Dr. Crago’s
conclusion — that Plaintiff’s condition was caused by exposure to toxic
72
mold — was not arbitrary or capricious. Apart from that assertion on appeal
(and Dr. Moyer’s follow-on conclusion), the consensus among Plaintiff’s treating
professionals was that she suffered from cognitive dysfunction of unknown
etiology. Indeed, a number of doctors sourced Plaintiff’s symptoms to
psychological conditions, such as anxiety and depression, including Dr. Mintz
(see LTD Cl. 128-31), Dr. Cramer (see id. at 108), Dr. Moyer (see id. at 120-21),
and Dr. Narasimhan (see id. at 149; see also id. at 1029 (“She has memory
problems secondary to depression/cognitive dysfunction as evidenced in
neuropsychology evaluation.”)). Further, certain other treating doctors, such
as Dr. Meyer, diagnosed depressive or anxiety-related symptoms, but assessed
these to be a consequence of Plaintiff’s cognitive issues, rather than a cause.
See supra at 16-18.
As described above, the Plan provides a 24-month benefit cap for
disability based primarily on self-reported symptoms or mental illness; mental
illness, in turn, explicitly includes depression, anxiety, and adjustment
disorders. (LTD Plan 26, 37). Although no party to this case has plainly stated
it, it is clear to the Court that Plaintiff pursued a claim for benefits based on
cognitive dysfunction of an organic or physical etiology with the objective of
obtaining benefits beyond two years; in this vein, the Court cannot discount
the probability that Plaintiff might have obtained — but would not have been
satisfied with — a diagnosis of cognitive dysfunction based on “a psychiatric or
psychological condition.” (Id. at 37). Instead, Plaintiff repeatedly underwent
testing and visited doctors searching for a physical etiology for her
73
symptoms — going so far as to craft different timelines of her symptomatology
for different doctors — but her doctors were unable to determine such a cause.
In its benefits denial letter, Unum cited a number of reasons, including
the facts that:
By at least 2009 [Plaintiff] [re]attributed her symptoms
from psychiatric to a medical/physical cause. She
engaged in a several year series of specialty evaluations
before and after she stopped work in May 2012. In
pursuit of a medical explanation for her symptoms she
saw four neurologists and two neuropsychologists, as
well as numerous other traditional and alternative
medicine specialists between 2009-2013. There has
been extensive cognitive work up; however, no
significant findings were noted on multiple clinical
exams and diagnostic testing to explain the presence
and severity of [Plaintiff’s] reported symptoms.
(LTD Cl. 1374). As such, Plaintiff was sufficiently informed by Unum’s denial
letter of the inadequate physical evidence supporting her claim, and Plaintiff’s
current claim that Unum “did not raise etiology as a basis for denying
[Plaintiff’s] claim … [and] therefore waived that alleged defense” (see Pl.
Reply 2), is simply wrong.
Given the interplay between disabilities of a physical origin and those
based on self-reported symptoms or mental illness, in conjunction with
Plaintiff’s assertion that she was disabled due to a cognitive disorder of an
“organic” or physical origin, the Court understands Unum’s inclusion of this
“cause” requirement to be a safeguard against circumvention of the two-year
cap on self-reported symptoms. This case is therefore distinguishable from a
matter like Magee v. Metro. Life Ins. Co., 632 F. Supp. 2d 308, 317-18 (S.D.N.Y.
2009), in which the court found an insurance company unreasonable for
74
demanding objective evidence of a disabling impairment (CFS) where common
medical knowledge dictated that the symptoms were entirely subjective. Here,
no party has contended that Unum is demanding objective proof of a purely
subjective condition; on the contrary, Plaintiff has resisted the conclusion that
her illness is characterized only by self-reported symptoms.
Further, Unum was not required to accept at face value the assertion of
Dr. Craig that Plaintiff’s “file [was] replete with information confirming her
ongoing disability due to an organic/physical cognitive disorder” (LTD
Cl. 1235), when no doctor had been able to obtain evidence supporting such a
claim. See Hobson, 574 F.3d at 88 (“[I]t is not unreasonable for ERISA plan
administrators to accord weight to objective evidence that a claimant’s medical
ailments are debilitating in order to guard against fraudulent or unsupported
claims of disability.”); cf. Maniatty, 218 F. Supp. 2d at 504 (“[F]ar from ignoring
the reports of the treating physicians, [the administrator] heavily relied on the
fact that none of them adduced any objective evidence of plaintiff’s complaints.
In these circumstances, it was not unreasonable for the administrator to
conclude that the only material reason the treating physicians were reaching
their diagnoses was based on their acceptance of plaintiff’s subjective
complaints: an acceptance more or less required of treating physicians, but by
no means required of the administrator.”). Accordingly, the Court finds that it
was not arbitrary and capricious for Unum to determine that Plaintiff’s failure
to present a physical etiology was one ground on which to deny her claim.
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b.
Unum’s Interpretation of Plaintiff’s Records Was
Appropriate
While Plaintiff contends that Unum cherry-picked among Plaintiff’s
records and relied on negative interpretations of those records to support a
denial of benefits, the Court disagrees. As noted, Plaintiff’s claim was reviewed
more than a dozen times by approximately ten different claims reviewers.
Comparing its own review of Plaintiff’s wealth of medical evidence to Unum’s
assessments, the Court finds that Unum’s reviewers delved deeply into the
records supplied by Plaintiff’s treating physicians, and did not neglect to
consider the portions of those records supporting Plaintiff’s disability
claim — most often, her attending physicians’ assertions that she had severe
cognitive dysfunction precluding her continued employment. The fact that
Unum identified discrepancies in Plaintiff’s reported medical history that
supported its denial, while declining to take at face-value her physicians’
assertions of cognitive dysfunction, does not equate to cherry-picking among
her records, and does not render Unum’s decision arbitrary and capricious.
See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts
have no warrant to require administrators automatically to accord special
weight to the opinions of a claimant’s physician; nor may courts impose on
plan administrators a discrete burden of explanation when they credit reliable
evidence that conflicts with a treating physician’s evaluation.”).
The Court also accepts, as a general proposition, the importance of
considering a plaintiff’s subjective complaints before denying a claim. See, e.g.,
Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013) (“[A] reviewing
76
court is obliged to determine whether a plan administrator has given sufficient
attention to the claimant’s subjective complaints … before determining that
they were not supported by objective evidence.” (internal citation and alteration
omitted)). The Miles Court observed that a plan administrator should “provide
specific reasons for its decision to discount” such complaints, in order for a
court to find they were given sufficient attention. Id. at 487. Here, as
discussed below, Unum detailed a number of reasons for finding Plaintiff’s
subjective complaints non-credible, many of which were attributable to the
inconsistencies in the accounts Plaintiff provided over time and among
physicians.
For example, Unum reasonably considered Plaintiff’s fluctuant accounts
as to the timing of the onset of her symptoms, varying from five years prior to
her visit with Dr. Miric in October 2009 (LTD Cl. 341), to only three years prior
to her visit with Dr. Moyer in November 2012 (id. at 114-15). Compounding
this, Plaintiff later adopted an account attributing her difficulties to toxic mold
exposure in 2009, highlighting the inconsistency of her comments in 2009 that
the relevant symptoms had begun years earlier. Further, Unum justifiably
considered the gaps in Plaintiff’s treatment during the elimination period (id. at
995), along with the two-month gap between the beginning of her disability
leave and her first treatment as directed by Dr. Husar and Dr. Craig (id. at
1349), as evidence that Plaintiff was not as severely disabled as she claimed.
Along the same lines, Plaintiff’s dire accounts of her difficulties at
work — informing Dr. Craig in 2009 that her difficulties were “very evident” at
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work (LTD Cl. 86), telling Dr. Craig in 2012 that she would likely be “let go” for
performance issues (id. at 94), and reporting to Dr. Husar that she received “an
ultimatum” to get help or be fired (id. at 83) — contradicted her supervisor’s
report that while he noticed a decline in her energy and health, he had issued
no warnings and reported no performance issues (see STD Cl. 140).
Moreover, while Plaintiff repeatedly criticizes Unum’s comments about
her planning and execution of a cross-country move, which Unum deemed
incompatible with severe cognitive dysfunction (see Pl. Br. 19-20, 23), Unum’s
consideration of this factor was not an abuse of its discretion under the Plan.
While Plaintiff argues that her “17-year-old son [ ] moved to Arizona to help
her” (LTD Cl. 793), Plaintiff does not indicate that her son had in fact helped
her plan and undertake the cross-country move itself, which Unum believed
would be cognitively challenging and at odds with Plaintiff’s claimed level of
functioning. Thus, consideration of this factor among many others in finding
that Plaintiff’s activities contradicted her claimed cognitive deficits did not
amount to an abuse of discretion.
Relatedly, Plaintiff criticizes Unum for “[r]ejecting without explanation the
findings of Drs. Linehan, Meyer, and Moyer that [Plaintiff’s] GAF score always
hovered in the severely restricted 40-50 range.” (Pl. Br. 41). Defendants, in
reply, state that “Unum fully evaluated the records and reports of those
doctors,” and determined either that they were not credible or that the reported
low GAF score was at odds with Plaintiff’s day-to-day functioning. (Def.
Reply 7-8). The Court concurs with Defendants’ reasoning. Notably, Plaintiff’s
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lowest recorded GAF score was 40, which indicates “[s]ome impairment in
reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant”) or “major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood.” (See Pl. Ex. 1). Unum could
reasonably determine that this was at odds with Plaintiff’s account to Dr.
Linehan, as she represented to him that she was able to take care of her
daughter, while noting that her boyfriend in Florida was “useless” and her
family living locally did not provide support. (See LTD Cl. 609-11). 22
The Court also considers the critiques of Dr. Craig’s and Dr. Moyer’s
symptom validity assessments. With regard to Dr. Craig’s testing, the Court
takes Unum’s point that his methodology was in turn criticized by Dr. Moyer,
who definitively would not be impacted by any potential conflict of interest or
bias; Dr. Moyer’s critique thus lends credibility to Unum’s criticisms of Dr.
Craig’s testing, which purportedly did not incorporate symptom validity testing.
With respect to Unum’s criticism of Dr. Moyer’s testing, the Court notes that
multiple Unum reviewers suggested her methodology was dated or ineffective,
and critiqued her finding of validity where Plaintiff failed certain portions of the
test. (See, e.g., LTD 415-18 (Dr. Black); id. at 1064 (Dr. Spica)). Further,
Defendants correctly observe that Dr. Moyer attributed “special significance to
the fact that the patient unhesitatingly reported the onset of her
22
In any event, the Court notes that a low GAF score alone would not suffice to
demonstrate Plaintiff’s claimed disability. As noted above, Plaintiff maintains that she
has an organically- or physically-based condition, and her GAF score would not reflect
the etiology of her deficits.
79
cognitive/physical difficulties during a time period when she had possible
exposure to toxic mold” (LTD Cl. 120), yet Plaintiff had reported varying times
of onset to her physicians, rendering less persuasive Dr. Moyer’s finding of
credibility on this ground. Accordingly, the Court finds it was not an abuse of
discretion for Unum’s reviewers to ascribe less weight or credibility to
Dr. Moyer’s testing.
Further, Plaintiff notes that Unum’s independent investigator, Linda
Moses, observed Plaintiff and noted her halted speech and apparent struggles
to recall certain words; as Plaintiff argues, Unum then ignored Moses’s findings
and Moses’s failure to cite any “inconsistencies” in Plaintiff’s presentation. (Pl.
Br. 19-21, 41). As Defendants argue in reply, a number of Unum reviewers
considered and cited Moses’s evaluation, and her report is but “one data point,
regarding a layperson’s observations of [P]laintiff, at [a] single meeting held at
her disability lawyer’s office, several months after the Elimination Period
ended.” (Def. Reply 9). Moreover, as the Court observes, Moses’s report does
not indicate that she reviewed any of Plaintiff’s prior medical records or any of
Unum’s assessments, nor that she conducted any cognitive testing or validity
assessments, thus giving her little baseline against which to determine
“inconsistencies.”
Setting aside Plaintiff’s account of her symptoms and activities, Unum
further relied on Plaintiff’s inconsistent test results among providers as
grounds for denying her claim. For example, Plaintiff’s cognitive testing with
Dr. Moyer established that while Plaintiff had average scores for short-term
80
memory, her scores for long-term memory were low-average to borderline (LTD
Cl. 117-18); in contrast, Plaintiff’s testing with Dr. Craig revealed “better ability
to recall ‘long term’ information” with “deficits across most areas of verbal and
non-verbal recall and manipulation of stimuli in short-term/working memory”
(id. at 93). Further supporting its conclusion, Unum understandably
questioned whether the cited scores in a “low average” range sufficed to
demonstrate that Plaintiff was fully disabled. (See, e.g., id. at 416).
c.
Unum’s Claims Procedures Did Not Render Its
Determination Arbitrary and Capricious
A separate challenge to Unum’s review process is Plaintiff’s claim that
Unum employs an inappropriate “feedback loop claims approach.” (Pl. Br. 17).
As Plaintiff argues, “[a]n insurer’s bias is [ ] evident when it sets up a ‘feedback
loop’ approach in which reviewing employee-physicians reinforce their findings
with their previous opinions or the opinions of other employee-physicians who
agreed with them.” (Id.). However, Plaintiff cites no law on this point, apart
from two cases in which the same claims reviewer evaluated a file twice and
concurred with his or her own earlier findings. With regard to Unum’s claims
personnel reviewing the findings of their colleagues, Plaintiff presents no
precedent, nor has the Court identified any, suggesting this is an abuse of
discretion.
Plaintiff further alleges that allowing certain physicians to review
Plaintiff’s evidence at the appeal stage, when those doctors had already
conducted assessments at the preliminary determination stage, precluded a
“full and fair review.” (See Pl. Br. 17). Under 29 C.F.R. § 2560.503-1(h)(3)(v),
81
an appeal of an adverse benefits determination should be assessed by “an
individual who is neither an individual who was consulted in connection with
the adverse benefit determination that is the subject of the appeal, nor the
subordinate of any such individual.”
Based on the record, Dr. Zimmerman consulted on Plaintiff’s short-term
disability claim in March 2013, and then examined Plaintiff’s long-term
disability claim almost a year later following Plaintiff’s appeal. However, at the
appeal stage, Dr. Zimmerman deferred analysis of the key additional
evidence — Dr. Crago’s assessment and Plaintiff’s claim of toxic mold
etiology — to Dr. Thurber, an internal medicine specialist who had not
previously been involved in Plaintiff’s claim determination process. Moreover,
Dr. Thurber’s notes do not indicate, in his list of sources consulted, that he
reviewed Dr. Zimmerman’s conclusions from either the initial determination
stage or following Plaintiff’s appeal. (LTD Cl. 1364-65). Accordingly, while Dr.
Zimmerman apparently reassessed Plaintiff’s claim on appeal, the Court finds
that Dr. Thurber independently reviewed the claim and provided a
substantially similar conclusion. 23 Thus, any error by Unum in permitting Dr.
23
Separately, the Court notes that Plaintiff cites only one case within this Circuit on this
point, Spears v. Liberty Life Assur. Co. of Boston, No. 3:11-cv-1807 (VLB), 2015 WL
1505844, at *32 (D. Conn. Mar. 31, 2015). There, notably, the plaintiff’s appeal records
included a letter from an Assistant Attorney General of the State of Connecticut, which
was “highly critical” of the determining physician’s initial report. Id. As the court there
noted, it was “nearly inconceivable that a consultant whose analysis and conclusion
ha[d] been called into question by a state prosecutorial office would do anything other
than defend that conclusion[.]” Id. Such a pressured situation is not applicable here,
where the only additional submissions came from two psychologists.
82
Zimmerman to review Plaintiff’s long-term claim on appeal was ultimately
harmless.
In the same vein, Plaintiff suggests that Unum utilized its “Roundtable”
meetings for the purpose of closing out Plaintiff’s claim without payment, citing
two cases from outside this Circuit to support that contention. (Pl. Br. 20; see
also Leavey v. Unum Provident Corp., 295 F. App’x 255, 258 (9th Cir. 2008)
(referencing a roundtable review, “the sole purpose of which was to close
expensive claims”); Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169, 179 (E.D.
Pa. 2004) (referencing a claimant’s assertion regarding the same)). In
opposition, Defendants claim Roundtables amount only to “a meeting of people
with different specialties … to discuss a claim and decide on next steps.” (Def.
Br. 40). Defendants cite another case from outside this Circuit stating that
“Unum asserts that it uses the reviews to assist disability benefits decisionmakers in understanding medical aspects of the claims…. Plaintiff has not
demonstrated that Unum used the round-table reviews in this case to eliminate
expensive claims.” Meyer v. UNUM Life Ins. Co. of Am., 96 F. Supp. 3d 1234,
1247 (D. Kan. 2015). The Court concurs with Defendants’ assessment, as
Plaintiff has presented nothing other than speculation to suggest these
Roundtable reviews were conducted because of the size of her claim or for some
nefarious purpose. Instead, they appear only as Defendants describe them — a
brief overview of the issues at hand with recommended next steps for
contacting attending physicians for additional information or clarification.
83
d.
Unum Properly Relied on the Records Submitted
Further, while Plaintiff asserts that Unum erred by failing to review all of
Plaintiff’s neuropsychological “raw data,” Plaintiff fails to present law from this
Circuit to support this contention, nor has the Court identified such law.
Defendants, in opposition, contend that “nothing … requires plan
administrators to scour the countryside in search of evidence to bolster a
petitioner’s case.” Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 213 (2d Cir.
2015) (internal citation and alteration omitted). Absent any legal ground on
which Unum was obligated to seek out the raw data underlying Plaintiff’s
attending physicians’ opinions — particularly because this data was submitted
neither by those physicians nor by Plaintiff, who bears the burden of
establishing disability — the Court will not find that Unum acted arbitrarily
and capriciously in denying Plaintiff’s claim without obtaining that information.
And, while Plaintiff claims that Unum should be faulted for failing to
conduct “a simple inquiry” to gather “‘easily obtainable’ information” to clarify
an issue (see Pl. Br. 13), Defendants rightly point out that that “[g]iven the
breadth of the testing that failed to find an etiology, it is impossible to imagine
what ‘easily obtainable’ information existed, that [P]laintiff’s own lawyers did
not submit, and that would have proved her claim” (Def. Br. 30). The Court
agrees: Plaintiff’s short- and long-term disability claim files span over 2,200
pages, and no party disputes that Plaintiff underwent comprehensive testing
and examination by her attending physicians. Moreover, Plaintiff does not
84
point to any “easily obtainable” information that might have impacted Unum’s
decision; absent any specificity, Plaintiff’s vague claim in this regard falls short.
Along similar lines, Plaintiff also faults Unum’s failure to obtain an
independent medical examination (“IME”) for Plaintiff prior to denying her
claim. (Pl. 15-16). Plaintiff relies on the Maine Bureau of Insurance’s 2004
investigative report of Unum, which states that “[w]here there is conflicting
medical evidence or conflicting medical opinions with respect to a claimant’s
eligibility for benefits, [Unum has] the ability to invoke the policy provision and
obtain an IME, and should do so.” (Pl. Br. 15 (citing Pl. Ex. 2 at 6)). Plaintiff
further cites Strope v. Unum Provident Corp., No. 06 Civ. 628C (SR), 2010 WL
1257917, at *7 (W.D.N.Y. Mar. 25, 2010), in which the district court criticized
Unum for having “flatly rejected the opinion of plaintiff’s treating physician, yet
never request[ing] an independent medical examination [ ] of plaintiff.”
However, the Second Circuit has held that “where the ERISA plan
administrator retains the discretion to interpret the terms of its plan, the
administrator may elect not to conduct an IME, particularly where the
claimant’s medical evidence on its face fails to establish that she is disabled.”
Hobson, 574 F.3d at 91. Further, “requiring the plan administrator to order an
IME, despite the absence of objective evidence supporting the applicant’s claim
for benefits, risks casting doubt upon, and inhibiting, ‘the commonplace
practice of doctors arriving at professional opinions after reviewing medical
files,’ which reduces the ‘financial burden of conducting repetitive tests and
examinations.’” Id. (citing Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569,
85
577 (7th Cir. 2006)). Here, a number of claims reviewers delved into Plaintiff’s
medical records and determined that they did not support her claim for an
organically- or physically-based cognitive condition that rendered her
completely disabled from her job. Because the Court upholds as reasonable
Unum’s finding that Plaintiff failed to present objective evidence, the Court also
finds that Unum’s failure to seek an IME was not arbitrary and capricious.
e.
Unum’s Determination on Appeal Was Not Arbitrary and
Capricious
On appeal from Unum’s initial determination, Plaintiff relied heavily on
the additional submission of Dr. Crago, pressing her claim that her cognitive
dysfunction was of physical etiology — namely, exposure to toxic mold. (See
supra at 47-49). Unum did not construe this as additional evidence supporting
Plaintiff’s claim, though; as Dr. Thurber determined, Dr. Crago’s claims were
unsubstantiated by clinical evidence, and the research cited was of dubious
validity. Again, the Court finds that Unum did not abuse its discretion in
failing to award Plaintiff long-term benefits on the basis of Dr. Crago’s report.
The Court notes that while Dr. Crago provided a number of statements
correlating Plaintiff’s symptoms to his own research regarding victims of toxic
mold, he did not demonstrate causation in her case. Indeed, Dr. Crago
appears to this Court to be the proverbial “man with a hammer,” 24 particularly
24
See Abraham Maslow, THE PSYCHOLOGY OF SCIENCE: A RENAISSANCE 15-16 (1966) (“I
suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it
were a nail.”).
86
in his efforts to harmonize dissonant opinions from Plaintiff’s evaluating
medical professionals under the banner of toxic mold exposure.
Also, while the Court will not venture to assess Dr. Thurber’s critiques of
Dr. Crago’s research methodology, given its lack of expertise in this area, it
does find significant Dr. Thurber’s notes that (i) Plaintiff’s record revealed “no
history of typical respiratory symptoms,” like those suffered by Plaintiff’s
daughter, and (ii) her treating physicians, even when informed that she
believed mold could be a cause of her symptoms, declined to consider this as a
possible etiology of her disability. Moreover, as Unum notes, Dr. Crago’s
research referenced serologic testing to identify toxic mold exposure, yet Dr.
Crago did not undertake to perform this testing on Plaintiff, and none of
Plaintiff’s multitude of tests from her other physicians demonstrated any noted
serologic abnormalities potentially attributable to mold. Dr. Crago did not
indicate that testing would be unable to demonstrate Plaintiff’s exposure for
any reason, and the mere reliance on Plaintiff’s assertion to draw his
conclusions did not obligate Unum to accept his report as objective proof.
Accordingly, the Court finds that Unum’s denial of Plaintiff’s appeal was not
arbitrary and capricious, where the additional evidence she submitted failed to
prove the cause of her medical issues or to cure the deficiencies noted in
Unum’s initial review.
87
CONCLUSION
Having considered the full record, including certain additional exhibits
submitted by the parties, the Court concludes that Plaintiff failed to meet her
burden to show that she had an organically- or physically-based disability
under Unum’s Long Term Disability Plan, and that Unum’s denial of benefits
was not arbitrary and capricious. Accordingly, Plaintiff’s motion is DENIED
and Defendants’ motion is GRANTED. Judgment will be entered in favor of
Defendants.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
SO ORDERED.
Dated:
September 29, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
88
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