Tulino v. United of Omaha Life Insurance Company

Filing 36

OPINION re: 22 CROSS MOTION for Summary Judgment on Administrative Record filed by United of Omaha Life Insurance Company, 16 FIRST MOTION for Judgment on the Pleadings filed by Pasquale Tulino: Based on the facts and conclusions set forth above, Plaintiff's motion is denied and Defendant's cross-motion is granted. (Signed by Judge Robert W. Sweet on 1/26/2017) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
PASQUALE TULINO,
Plaintiff,
15 Civ. 3731

(RWS)

- against OPINION
UNITED OF OMAHA LIFE INSURANCE
COMPANY,
Defendant.

----------------------------------------x

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A P P E A R A N C E S:
Attorney for Plaintiff
MICHAEL SWAALEY, ATTORNEY AT LAW
4459 Amboy Road
Staten Island, NY 10312
By:
Michael Swaaley, Esq.

Attorneys for Defendant
GOLDBERG SEGALLA, LLP
665 Main Street, Suite 400
Buffalo, NY 14203
By:
Fallyn B. Cavalieri, Esq.
GOLDBERG SEGALLA, LLP
600 Lexington Avenue, Suite 900
New York, NY 10022
By:
Alex J. Yastrow, Esq.

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DATE FILED: ·-

Sweet, D.J.

This is an action arising from an alleged wrongful
denial of long-term disability benefits under an employee
benefits plan subject to the requirements o f the Empl oyee
Retirement In come Security Act of 1974, 29 U.S.C.
seq.

§

1001, et

("ERISA"). Plaintiff Pasquale Tulino ("Tulino" or the

"Plaintiff" ) has moved for a judgment on the administrative
record and Defendant United of Omaha Life Insurance Company
("United " or the "Defendant") has cross-moved for the same.
Based on the facts and conclusions set forth below, the motion
of the Plaintiff is denied, and the cross-motion of the
Defendant is granted.

I.

Prior Proceedings and Facts

Th e fa cts are set forth in Plaintiff's Statement of
Material Facts Pursuant to Local Civil Rule 56.1, Defendant's
Response and Counter-Statement of Additional Undisputed Facts,
and Plaintiff's Response and Counter-Statement of Additional
Undisputed Facts, and are not in dispute except as noted below.

Pasquale Tulino, the Plaintiff, is a professional
eng ineer who was employed by HDR,
1

Inc., as a Senior Vi ce

President-Civil Section Manager. As part of his compensation
package, Tulino's employer provided Long Term Disability (LTD)
insurance. United of Omaha Life Insurance Company, the
Defendant, issued the disability plan to HOR, Inc., under policy
number GLTD-13J8, effective January 1, 2007

(the "Plan"). See

Plaintiff's Statement of Undisputed Material Facts Pursuant to
Local Civil Rule 56.1 ("Pl.'s 56.1 Stmt.") i i 1-2; Defendant's
Response to Defendant's 56.1 Statement and Counter-Statement of
Additional Undisputed Material Facts Pursuant to Local Civil
Rule 56.1 ("Def.'s Resp. 56.1 Stmt.", collectively with Pl.'s
56.1 Stmt., the "56.1 Stmts.") i i 1-2, 44. The plan is an
employee welfare benefit plan governed by ERISA. See Def.'s
Resp. 56.1 Stmt. i

45.

The plan provides LTD benefits in the event of a
covered claim under the terms and conditions of the plan.
Specifically, the plan provides:

LONG-TERM DISABILITY BENEFITS
Benefits

If, while insured under this provision, You become
Disabled due to Injury or Sickness, We will pay the
Monthly Benefit shown in the Schedule. Benefits will
begin after You satisfy the Elimination Period shown
in the Schedule.

2

Id.

~

46.

The plan contains language which confers United with
discretionary authority to determine eligibility for benefits
and to construe and interpret all terms and provisions of the
policy. Specifical l y, the plan provides:

RIDER
This rider is made a part of Group Policy GL TD - 13J8
This rider is effective January 1 , 2014.
In the event of a conflict between this Rider and any
other provision of the Policy , including the
Certificate, this Rider shall control.
The following is made a part of the Policy.

Authority To Interpret Pol icy
The Po l icyholder has delegated to Us the discretion to
determine eligibility for benefits and to construe and
interpret all terms and provisions of the Policy .
Benefits under the Policy will be paid only if We
decide , after exercising Our discretion, that the
Insured Person is entitled to them. In making any
decision , We may rely on the accuracy and completeness
of any information furnished by the Policyholder, an
Insured Person or any other third parties.
The Insured Person has the right to request a review
of Our decision . If , after exercising the Policy ' s
review procedures , the Insured Person ' s claim for
benefits is denied or ignored , in whole or in part,
the Insured Person may file suit and a court will
review the Insured Person's eligibility or entitlement
to benefits under the Policy .
* * *

PAYMENT OF CLAIM
S

3

* * *
Authority to Interpret Policy

Policy benefits will be paid only if We determine , in
Our discretion, that the claimant is entitled to
benefits under the terms of the Policy (see the
Authority to Interpret Policy provision in the ERISA
Summary Plan Description information included with the
Certificate) .
Id.

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47 .

The plan contains the following relevant definitions:
LONG-TERM DISABILITY DEFINITIONS

* * *
Disability and Disabled means that because of Injury
or Sickness, a significant change in Your mental or
physical functional capacity has occurred in which You
are:

a) prevented from performing at least one of the
Material Duties of Your Regular Occupation on a
part-time or full-time basis : and
b) unable to generate Current Earnings which exceed
99 % of Your Basic Monthly Earnings due to that
same Injury or Sickness.
After a Monthly Benefit has been paid for 24
months, Disability and Disabled mean You are
unable to perform all of the Material Duties of
any Gainful Occupation .
Disability is determined relative to Your ability
or inability to work . It is not determined by the
availabi lit y of a suitable position with Your
employer .
* * *
Regular Occupation means the occupation You are
routinely performing when Your Disability begins. Your

4

11

,1

;

regular occupation is not limited to the specific
position You held with the Policyholder, but will
instead be considered to be a similar position or
activity based on job descriptions included in the
most current edition of the U.S. Department of Labor
Dictionary of Occupation Titles (DOT) . We have the
right to substitute or replace the DOT with a service
or other information that We determine of comparable
purpose, with or without notice. To determine Your
regular occupation , We wi ll look at Your occupation as
it is normally performed in the national economy,
instead of how work tasks are performed for a specific
employer, at a specific location, or in a specific
area or region.
* * *
Gainful Occupation means an occupation, for which You
are reasonably Fitted by training, education or
experience, is or can be expected to provide You with
Current Earnings at least equal to 85 % of Basic
Monthly Earnings within 12 months of Your return to
work .
* * *
Material Duties means the essential tasks, functions,
and operations relating to an occupation that cannot
be reasonably omitted or modified. In no event will We
consider working an average of more than 40 hours per
week in itself to be a part of material duties. One of
the material duties of Your Regular Occupation is the
ability to work for an employer on a full-time basis.
* * *
Sickness means a disease, disorder or condition,
including pregnancy, for which you are under the care
of a Physician. Disability must begin while you are
insured under the Policy. Sickness does not include
cosmetic surgery or procedures, or comp li cations
resulting therefrom.
* * *
Maximum Capacity means, based on Your medical
restrictions and Limitations:
5

a) during the first 24 months of Disability
payments, the greatest extent of work You are
able to do in Your Regular Occupation ; and
b) after 24 months of Disability payments, the
greatest extent of work You are able to do in any
occupation that is reasonably available and for
which You are reasonably fitted by education
training or experience.

See 56.1 Stmts.

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The HOR,

2 ; Def.'s Resp. 56 .1 Stmt .

Inc.,

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48.

job description for "Section

Manager/Team Leader" states the following duties and
responsibilities for that position:
•

Responsibility for operations of a production
section including staff development,
profitability, morale, quality control and
marketing support.

•

Will function as a project manager and production
on projects in addition to management
responsibilities.

•

Will be administratively responsible for the
section staff and technical service functions and
will lead and coordinate services with other
sections.

•

Will be involved in marketing planning, proposals
and interviews.

•

Be directly involved with industrial and public
clients in marketing, project production and
related issues.

•

See that all work is planned, organized ,
controlled and evaluated through a proactive
project management system.

6

11

·,

•

Implement, monitor and support company policy.

•

Select, train, develop and manage technical
personnel.

•

Experience in the management and development of
multi-discipline teams.

•

Work cooperatively with National Directors and
marketing in local and national marketing and
production efforts.

See Def.'s Resp. 56.1 Stmt.

~

49. Tulino's position as Senior

Vice President/Civil Section Manager is defined by the
Dictionary of Occupational Titles to require a Sedentary
Capacity Strength Demand. Pursuant to this designation, his
position requires only that he be able to exert up to 10 pounds
of force occasionally, and/or a negligible amount of force,
frequently, to move objects.

Id.

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51. Plaintiff admits that the

job is defined as sedentary, but notes that this Dictionary
definition ignores the mental stress component of the job. See
Plaintiff's Response to Def.'s Resp. 56.1 Stmt.
56.1 Stmt.")

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("Pl.'s Resp.

2.

In late February 2012, Plaintiff suffered a large
heart attack. On March 2, 2012, Plaintiff had a cardiac
catheterization performed, including an angioplasty and stent

See id.

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3-4.

7

.,

Frank V. Tamburrino, Plaintiff's treating
cardiologist, reported that Plaintiff had a "recent large
anterior septal myocardial infarcti o n. He has residual depressed
heart mus c le function with an ejection fraction of 45 %." See
Pl.'s 56.1 Stmt. ! 5. Defendant agrees that Dr. Tarnburrino's May
11, 201 2 report makes this statement, but disputes the truth of
the statement, stating that it is not supported by other medical
reports and referencing an April 30, 2012

Echocardiogr~m

Report

noting that "left systolic function is normal, with an EF >55 %."
See Def.'s Resp. 56.l Stmt. ! 5.

Dr. Tamburrino als o wrote a rep o rt on the Plaintiff on
August 28, 2012. In that report, he stated:
[Plaintiff] is under my care. He has recently had
nu c lear stress test that sh owed a change in his
ejection fracti o n from 45 % to 40 % with symptoms of
sho rtness of breath and c hest pain.
Due to patient's sh o rtness o f breath and change in
status patient should be considered for disability.
See Pl.'s 56.1 Stmt. !

6. Defendant again agrees that these

statements were made, but disputes the truth o f the statement
regarding the nuclear stre ss test results because the results
"were ne v er provided to United." SeeDef.'s Resp. 56.1 Stmt. !

6.

On December 6, 2 012, Plaintiff saw his primary care
physician, Joseph Hederman, M.D., who reported a list of medical
8

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issues faced by the Plaintiff and concluded that he "agree[s]
with [t he] plan for full disability - work stress clearly
exacerbates his condition ." See 56.1 Stmts. ! 7.

Tulino made an application for LTD benefits under
United's policy. The application was approved and LTD benefits
were paid to him starting on June 4, 2012 . Defendant calculated
Tulino's Basic Monthly Earnings as $18,200 per month. See id. !
8 . On March 10, 2013 , the Plaintiff was granted Social Security
Disability (SSD) benefits effective September 2012. See id. !

9.

He states that he continues to receive SSD benefits; Plaintiff
disputes this.

Dr. Hederman produced multiple reports and other
documents related to Plaintiff's condition from April 2013
through December 20 1 3 . His April 5, 2013 report is characterized
by Plaintiff stating that stress worsens Plaintiff's symptoms
and that stress-related physiological responses are having
detrimental effects on Plaintiff's physical condition; Defendant
disputes this characterization. See id. ! 10. His September 15,
2013 report noted Plaintiff's poor prognosis. Id. ! 11. In an
October 18, 2013 response to a questionnaire from Defendant, Dr.
Hederman stated that Plaintiff's echo cardiogram showed
"Evidence of Diastolic Dysfunction" and that a "high work stress
9

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11

environment is detrimental to his cardiac condition and fragile
psycho emotional state." Id. i

13.

In a report dated December

12, 2013, Dr. Hederman stated that Tulino "has never been the
same" since his heart attack and that Tulino "did attempt to
return to work, but he was unable to perform the intense and
highly skilled duties at the same level which he had done for
about 30 years prior to his heart attack." He concluded that he
"consider[s Tulino] disabled from his prior job duties and
support his application for total disability." See id. i

15.

Additionally, Tulino's treating psychologist, Asher
Pakier, M.D., stated in his October 1, 20 1 3 report that
Plaintiff "cannot function in previous work environment which
led to his PTSD." Id. i

12.

Around that time, the Defendant began contracting with
third parties to hire other doctors ("United's Doctors") to
evaluate Tulino, the reports produced by Tulino's doctors
("Tulino's Doctors "), and Tulino's medical records. See Def.'s
Resp. 56.1 Stmt. i

59. It did so following a periodical review

of the claim to determine Tulino's cont inued eligibility f or
benefits. Id. i

58. Defendant states in its 56.1 Counter-

Statement that "[d]uring review of the claim in September 2013,
it appeared that the medical reports and documentation submitted
10

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by Tulino no longer supported a finding of total disability
under the terms of the plan" and this determination led "United
[to] commence[] a thorough review of Tulino's claim by
requesting authorizations, obtaining updated medical reports and
sending the records for a medical review by a registered nurse."
Id.

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59. The nurse medical reviewer hired by United concluded

that Tulino had no restrictions or limitations associated with
his cardiac condition based upon the records submitted. Further,
the reviewer concluded the medical records revealed that
Tulino's cardiac condition was stable with no signs or symptoms
of congestive heart failure. Def.'s Resp. 56.1 Stmt .

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62 .

On November 11, 2013 , United, through a third party ,
United Disability Consortium, retained Joseph Vita , M.D., a
cardiologist , to perform an independent medical record review;
Dr. Vita did not examine Tulino directly. Dr. Vita ultimately
provided his report directly to United. He found that Tulino's
medical interventions, including the stent, were successful;
there was no other significant coronary or valve disease; Tulino
was able to perform regular physical activity like walking up
two flights of stairs and regular exercise without symptoms; Dr.
Hederman had recommended counseling for Tulino's anxiety/stress.
Dr. Vita stated that Dr. Hederman reported that stress
exacerbates Plaintiff's symptoms and that "workplace emotional
11

,,

.,

stress might worsen his cardiac condition." See id.

~~

17-18. He

noted that the most recent echocardiogram on Tulino, done in
April 2012, showed a normal ejection fraction of 55 %, not a
reduced one of 40%, the figure Tulin o 's Doctors were still using
even though it was from the March 2012 test. Dr. Vita concluded
that there were "no evidence of restrictions or limitations that
would preclude a return to full time sedentary work from a
cardiac standpoint" because there were "no signs of systolic or
diastolic heart failure." Def.'s Resp. 56.1 Stmt.

~~

65 - 68 .

Further, Dr. Vita stated that because Tulino could exercise and
"has been fully re-vascularized," there is "no evidence that
emotional stress" would provoke heart issues in Tulino.

Id.

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69.

On December 12, 20 13, Defendant, through PsychBar,
LLC, had Plaintiff examined by Adam Raff, M.D., a psychiatrist.

See id.

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20 . In his December 2 7, 20 13 report,

Dr. Raff

acknowledged that the Plaintiff's attending physician asserted
that Plaintiff "should be restricted from working because the
workplace emotional stress might worsen his cardiac condition."

See 56.1 Stmts.

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2 1. He states that Plaintiff "reported that

his memory has significantly deteriorated since his heart
attack" and quotes Plaintiff as saying "I don't recall
instructions my wife gave me several minutes before." See id.
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22. He quotes Plaintiff as stating that his physicians
ins tr ucted him to do "consistent aerobic exercise." Id. !

24. He

notes Plaintiff as participating in the daily ca re of his four
children, three of which have developmental issues. See Def.'s
Resp. 56.1 Stmt. ! 78.

Dr. Richard Frederick, PhD, reviewed a personality
test

(the "MMPI-2") done on Tulino, from which he concluded that

Tulino was "inconsistent" when answering the questions and
therefore there was "evidence of dramatic rep o rting." Id. !

79.

He stated that the MMPI-2 showed that Tulino "requires and
demands that others take care of him" and that he might have a
"serious substance abuse disorder, probably alcohol." Id. ! 8081. Dr. Raff considered Dr. Frederick's reading of the MMPI-2.
Dr. Raff also spoke with Dr. Pakier, who stated that th ere are
not a lot of fun ct ional limitations on Tulino's daily life, but
rather on his specific employment responsibilities.

Id. ! 82.

Dr. Raff made multiple conclusions from his
examination of Tulino, the MMPI-2 results, and his discussion
with Dr. Pakier. First, that Tulino has "dramatic" personality
traits that exacerbate his perception of stress and lead him to
believe he is "incapacitated." Second, that his depressive
symptoms are manifested in "la ck[ ing] motivati on " to get a job
13

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rather than inability to get a job, since his psychological
symptoms have not prevented him from exercising or taking care
of his children. Finall y , he concluded that Tulino's
psychological symptoms created no limitations or restrictions.
Id. i i 83-86 .

Following review of the materials from Tulino's
Doctors and United's Doctors, on January 28 , 2014 , United
determined that Tulino no longer satisfied the definition of
Disability or Disabled and was therefore no l onger eligible for
LTD benefits. The denial letter to Tulino references Tulino's
receipt of SSD benefits and notes that this was taken into
consideration, but medical records that postdate the Social
Security determination make the award of SSD benefits
"[un]persuasive." Id. i i 88-91 .

During the appeal process, United solicited updated
medical records from Ors . Hederman, Tamburrin o , and Pakier. It
also had Tulino undergo a Cardiology Independent Medical
Examination, retaining third-party MLS National Medical
Evaluation Services, who engaged Dr. William Berger, a
cardio l ogist . Id. i i 98 - 99. Plaintiff takes issue with the
character ization of Dr. Berger as a cardiologist because he
signed his report "internal medicine," Def.'s Resp. 56.1 Stmt. i
14

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99, and asserts that this makes the entirety of Dr. Berger's
evaluation and report unreliable, id.

102-07.

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Dr. Berger examined Tulino on December 9, 2014 and
furnished his report directly to United on February 24, 2015.
Id.

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99, 101. He reported that a congestive heart failure

diagnosis was unsupported his physical examination of Tulino,
the medical records, or the treatment plan; that Tulino's most
recent nuclear stress test does not mention myocardial ischemia
or infarction but rather showed stable or improved heart
function with left ventricular ejection fraction at 50-55 %; and
that Tulino had symptoms of exertional chest pain and shortness
of breath, unchanged since March 2012.

Id.

~~

102-05. Tulino

reported to Dr. Berger that he goes to the gym five to six times
per week.

Id.

~~

106. Dr. Berger concluded that "[r]eturning to

work part time or full time will not have a significant impact
on [Tulino's] cardiovascular risk." Id.

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107.

United also retained Claims Bureau USA, Inc.

("Claims

Bureau") during the appeal process to conduct surveillance of
Tulino. Claims Bureau observed Tulino from November 8, 2014
through November 11, 2014. Id.

~~

108-10. Claims Bureau observed

Tulino at the gym for about an hour and a half each on two
separate days; Tulino running errands both in regards to his
15

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children and otherwise; and getting into an argument with
someone at a parking plaza. Id .

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110 - 15.

Based on this additional investigation and review of
the previous materials , United determined that its denial of LTD
benefits to Tu l ino was and remained proper . Id.

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116. After

exhaust i ng the administrative appeal process , Tu li no filed this
action on May 14 , 2015. The instant motion and cross - motion were
marked fully submitted on September 22 , 2016 .

II.

The Applicable Standards

A.

Motions for Judgment on the Administrative Record

Because a motion for judgment on the administrative
record "does not appear to be authorized in the Federal Rules of
Civi l Procedure , " Muller v. First Unum Life Ins . Co ., 34 1 F . 3d
119 , 1 24

(2d Ci r . 2003) , Tulino ' s mot i on for judgment on the

administrative record and United ' s cross - motion for the same
will treated as motions for summary judgment .

The Second Circuit Court of Appeals has noted that
" [m]any courts have either exp li cit l y or implicitly treated

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[motions for judgment on the administrative record]

. as

motions for summary judgment under Rule 56." Id.; see also

Gannon v. Aetna Life Ins. Co., No. 05 CIV. 2160
2844869, at *6-7

(S.D.N.Y. Sept. 2 8, 2007)

(JGK), 2007 WL

(treating motions for

judgment on the administrative record as summary judgment
motions, providing a string citation of cases in the circuit
doing the same, and noting that "while there is some support for
the proposition that a motion for judgment on the administrative
record should be treated as a mo tion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), the
distinction between a motion for judgment on the pleadings and a
motion for summary judgment may be more a matter of form than
substance.")

(internal quotation marks and citation omitted).

"[S]ummary judgment provides an appropriate vehicle whereby the
Court can apply substantive ERISA law to the administrative
record." Id. Both the Plaintiff and the Defendant have thus
sought summary judgment in their favor.

Summary judgment is appropriate only where "there is
no genuine issue as to any material fact and .

. the moving

party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). "[T]he substantive law will identify which facts
are material." Anderson v. Liberty Lobby, Inc.,
248

(1986).
17

477 U.S. 242,

, 1

t)

A dispute is "genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."

Id. The relevant inquir y on application for summary judgment is
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id. at 251-52.

A

court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for trial. Westinghouse Elec. Corp . v. N.Y . City Transit Auth.,
735 F. Supp. 1205, 1212

(S.D .N. Y. 1990)

(quoting Anderson,

477

U.S. at 249). "[T]he mere existence of some alleged factual
dispute between the parties will not def eat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact ." Anderson ,
477 U.S. at 247-48

(emphasis in original).

While the moving party bears the initial burden of
showing that no genuine issue of material fact exists , Atl. Mut.

Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005) ,
in cases where the non-moving party bears the burden of
persuasion at trial, "the burden on the moving party may be
discharged by 'showing'-that is , pointing out to the district
court-that there is an absence of evidence to support the
18

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nonmoving party's case." Celotex Corp . v. Catrett,
325

477 U.S. 317,

(1986). "It is ordinarily sufficient for the movant to point

to a lack of evidence

. on an essential element of the non-

movant's claim .

[T]he nonmoving party must [then] come

forward with admissible evidence sufficient to raise a genuine
issue of fact for trial

" Jaramillo v. Weyerhaeuser Co.,

536 F.3d 140, 145 (2d Cir. 2008)

(internal citations omitted);

see also Goenaga v. March of Dimes Birth Defects Found.,

14, 18 (2d Cir. 19 95)

51 F.3d

("Once the moving party has made a

properly supported showing sufficient to suggest the absence of
any genuine issue as to a material fact, the nonmoving party
must come forward with evidence that would be sufficient to
support a jury verd ict in his favor").

B.

Review of a Plan Administrator's Decision on Benefits

ERISA does not itself prescribe the standard of review
for challenges to benefit eligibility determinations. The
Supreme Court, however, has indicated that when a benefits plan
subject to ERISA grants the administrator of the plan
"discretionary authority to determine eligibility for benefits
or to construe the terms of the plan," the administrator's
decisions are reviewed under an arbitrary and capricious
standard. See Firestone Tire and Rubber Co . v. Bruch,
19

489 U.S.

..

101, 115 (1989); see also Celardo v . GNY Automobile Dealers
Health & Welfare Trust,

318 F.3d 142, 145 (2d Cir. 2003) . Here,

the parties agree that, by its explicit terms, the benefits plan
at issue grants such discretionary authority to United as
administrator, and that therefore the arbitrary and capricious
standard of review applies. See Pl.'s Br. at 12.

Under the arbitrary and capricious standard, a court
may overturn a plan administrator's decision to deny benefits
only if the decision was "without reason, unsupported by
substantial evidence or erroneous as a matter of law." Pagan v.
52 F.3d 438, 442

NYNEX Pension Plan,

(2d Cir . 1995)

(internal

quotations omitted) ; see also Jordan v. Ret. Comm . of Rensselaer
Polytechnic Inst.,

46 F.3d 1264, 1271 (2d Cir. 1995)

("The Court

may not upset a reasonable interpretation by the
administrator."). Substantial evidence is "such evidence that a
reasonable mind might accept as adequate to support the
conclusion reached by the [administrator and]

requires

more than a scintilla but less than a preponderance." Miller v.
United Welfare Fund,

72 F.3d 1066, 1072 (2d Cir. 1995)

(internal

quotations omitted) . The Court is limited to review of the
administrative record.

Id. at 1071.

20

The judicial deference aff o rded to a plan
administrat o r ' s decision i s n o t without limits, however. In
Metro . Life Ins . Co. v. Glenn , 554 U. S . 105 (2 008) , the Supreme

Court he l d that when "a plan administrator both evaluates claims
for benefits and pays benefits claims, " a conf l ict o f interest
exists as a matter of law.

Id. at 1 12. The Court also reite r ated

its prior holding i n Firestone that when " a benefit plan gives
discretion to an administrator or fiduciary wh o is operating
under a conf li ct of interest , that conflict must be weighed as a
' factor in determining whether there is an abuse of
d i scretion . '" Id . at 1 11 (quoting Firest one , 4 8 9 U. S . at 1 15 , in
turn quoting Restatement (Second ) of Trusts
(1957)

§

187 , Comment d

(hereinafter Restatement) ; emphas i s added ; alteration

omitted) .

III.

The Plaintiff's Motion is Denied and the Defendant's CrossMotion is Granted

Tulino argues that he is ent i t l ed to judgment vacat i ng
United ' s denial of h i s LTD benef i ts . He princ i pally argues that
United ' s Doctors did not consider the re l evance of emotional
stress to the question of whether or not he could return to
work.

21

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The Court recognizes United's conflict of interest
here. United, as both evaluator of claims and payor of benefits,
operated under a confl ict of interest. Glenn, 554 U.S. at 11 2.
While a professional insurance company might have a greater
incentive to be accurate in its claims processing than a selfinsuring employer, the Supreme Court maintained that for the
purposes of ERISA, a conflict still exists. Id at 2349 . That
United contracted with third parties to hire physicians and
others to perform independent review, evaluations, and
surveillance of Tulino does not erase United's conflict. Rather,
it reduces the extent to which United's conflict is considered
in reviewing its decision for abuse of discretion. In
determining whether United has abused its discretion in this
situation, its conflict is considered as one factor, weighed
alongside others. See Glenn, 544 U.S. at 108; Elizabeth Boey
Chau, M.D. v. Hartford Life Ins. Co ., No. 1:14-CV-8484-GHW, 2016

WL 7238956, at *4

(S.D.N.Y. Dec. 13, 2016)

(declining to

"require Dr. Chau to point to spe c ific evidence in the
administrative record that Hartford's structural conflict
affected its decision just to gain entitlement to discovery on
that very issue.").

As the Second Circuit later held, in light of Glenn,
"a plan under which an administrator both evaluates and pays
22

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 nova review appropriate." McCauley v. First Unum
Life Ins.

Co., 551 F.3d 126, 133 (2d Cir . 2008). "This 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. How much significance to give this conflict
factor "depend[s] on the circumstances of the particular case ."
Glenn, 544 U.S. at 108 .

The weight properly accorded a Glenn conf li ct varies
in direct proportion to the "likelihood that [the conf li ct]
affected the benefits decision":

The conflict .
. should prove more important
(perhaps of great importance) where circumstances
suggest a higher likelihood that it affected the
benefits decision, including, but not limited to,
cases where an insurance company administrator has a
history of biased claims administration. It should
prove less important (perhaps to the vanishing point)
where the administrator has taken active steps to
reduce potential bias and to promote accuracy, for
example, by walling off claims administrators from
those interested in firm finances, or by imposing
management checks that penalize inaccurate
decisionmaking irrespective of whom the inaccuracy
benefits.

23

Glenn,

554 U.S. at 117 (citation omitted). Evidence that a

conflict affected a decision may be categorical (such as "a
history of biased claims administration") or case specific (such
as an administrator's deceptive or unreasonable conduct).
117-119; see also McCauley,

Id. at

551 F.3d at 138.

There has not been sufficient evidence presented here
to show that United has a history of biased claims
administration. Instead, United has presented evidence in the
form of declarations showing that it has taken steps, in this
case and as its policy, to reduce potential bias. United has
made efforts to separate itself from the review process by
contracting with third parties to hire physicians to review or
evaluate those claiming LTD benefits. It has offered that it
does not provide its claims analysts or appeals specialists with
performance bonuses related to the number of claims paid or
denied, nor does it establish numerical guidelines or quotas
regarding claim payments or claim denials. See Susie Taylor
Declaration at ! 6, dated July 26, 2016 ("Taylor Deel.").
United's claims analysts and appeal specialists are evaluated,
in part, on the quality of their claims decisions, such as
whether the claims were handled correctly in accordance with the
applicable plan documents. See Taylor Deel. ! 8. United also
maintains a separate appeals department; the appeals department
24

reviewer does not contact the employee who made the original
benefit determination with respect to the substance of the
claim . See id.

~~

9-11.

Further, United represents that the claims department
and appeals department are completely separate business units
from the financial underwriters. See id.

~

12. The claims

department and the appeals department do not have any role or
responsibility in managing, reporting, or other functions
related to United's finances.

Id. It takes steps to ensure that

external medical reviews are not biased by employing procedures
including: not partnering with specific external reviewers; not
contro lling the roster of reviewers that may be assigned; not
informing external reviewers whether claims are paid or denied;
allowing the claims analyst to reject or accept the external
reviewer's opinion ; and paying the third party vendors , rather
than the external reviewers. See id.

~

14.

Nor is there sufficient evidence to show that that
there was case -specific conflict here. Jacob Smith , a claims
reviewer at United, confirmed that he applied United's policies
in dealing with Tulino's LTD benefits claim , stating that his
performance evaluations are based on the accuracy of his
decisions rather than their outcomes , that he does not receive
25

any bonus or remuneration for the denial of LTD claims on
appeal, and that he did not discuss the financial impact of
Tulino's claim with anyone in United's financial or underwriting
departments . See Jacob Smith Declaration at

~~

6 , 7.

United's conflict of interest remains a factor in
reviewing United's decision for abuse of discretion, but the
Court credits the declarations indicating that United makes its
best efforts to remain independent and unbiased in evaluating
claims both in the first instance and on appeal.

Reviewing United's decision for abuse of discretion in
light of this conflict , there is evidence of disagreement among
the parties' physicians and evaluators , but United 's conclusions
were reasonable and not arbitrary or capricious . It did not
"focus upon one treating physician report .

. at the expense

of other, more detailed treating physician reports" in coming to
its decision. Glenn, 554 U.S. at 110. In fact, United's Doctors'
reports discussed the reports of Tulino's Doctors; in at l east
one case, the physician retained by United spoke directly with
one of Tulino's treating physicians. The United Doctors' reports
also directly acknowledge the relevance of work stress to
Tulino's situation, both independently and in reference to
discussion of work stress by Tulino 's Doctors, contrary to
26

Tulino's assertion that United "ignored" the issue of work
stress entirely. The reports provided by United's Doctors are
not cursory , but are themselves detailed. They provide
explanations from a medical, heart-function perspective, as well
as a psychological management perspective, why they recognize
work stress but deem it not controlling for the question of
Tulino's capabi lity to work under the Plan. Though United's
Doctors are not Tulino's treating physicians, this does not
render their conclusions irrelevant here.

The question of the effect of work stress on a
particular individual's heart condition is not always clear-cut.
In this case, the many doctors consulted seem to agree that
Tulino undeniably suffered a heart attack in February 2012 , and
that he continues to suffer some physical, emotional , and mental
repercussions from it. However, the medical experts have
differed on the e x tent of Tulino's current physical , emotional ,
and mental issues. United seems to have weighed the different
perspectives, from its own and Tulin o 's Doctors, about whether
Tulino's heart function and psychological issues will be
exacerbated by work stress. In other words, there is no evidence
here on the part of United of "wholesale embrace of one medical
report supporting a claim denial to the detriment of a contrary
report that favors granting benefits ." McCauley v. First Unum
27

-· ·Life Ins.

Co., 551 F.3d at 136-137 (internal citation omitted).

It chose, in its discretion, to credit the more recent medical
and psychological evaluations of Tulino in determining that,
though he was once qualified for LTD benefits, he no longer
meets that qualification.

United also took into consideration that Tulino was
granted SSD benefits, acknowledging the Social Security
Administration's decision in its January 28, 2014 letter to
Tulino. It explained that it had weighed that piece of evidence
alongside records from Tulino's Doctors and its own hired
doctors, which included more recent evaluations than those used
for the SSD benefit determination, in coming to its ultimate
conclusion that Tulino was no longer eligible for LTD benefits.
This places Tulino's situation in direct contrast with cases
such as Alberigo v. Hartford,

891 F. Supp. 2d 383 (E.D.N.Y.

2012), where the court found that the insurance company-plan
administrator had abused its discretion, evidenced by its
"fail[ure] to explain its reasoning for differing in its
decision from the Social Security Administration's ("SSA")
finding [and] fail[ure] to take the determination into
consideration at all." Id. at 397.

28

The evidence supports that United's Doctors did review
Tulino's Doctors' reports. They did credit the findings o f Ors.
Hederman, Tamburrino, and Pakier, and ultimately disagreed with
them. United's Doctors acknowledged the effects of work stress
as it relates to Tulino's heart condition, but concluded that,
based on their medical findings at this point in time, work
stress cons iderations will not likely affect his heart condition
in such a way as t o continue to qualify Tulin o for LTD benefits.
United appears to have weighed the evidence from its own
doctors, as well as the evaluations from Tulino's treating
physicians, in coming to its conclusion. Under an abuse of
discretion standard o f review, even factoring in United's
conflict of interest, United's decision to deny Tulino LTD
benefits from January 28 , 20 1 4 onward was not arbitrary or
capricious.

IV.

Conclusion

Based on the facts and conclusions set forth above,
Plaintiff's motion is denied and Defendant's cross-motion is
granted.

It is so ordered.

29

New York, NY
January t,,,_G, 2017

U.S.D.J.

30