Thoma v. Fox Long Term Disability Plan et al

Filing 40

OPINION AND ORDER re: 24 MOTION for Summary Judgment [to be treated as motion subject to FRCP Rule 52]; 22 MOTION for Summary Judgment: Based on the findings of fact and conclusions of law set forth above, Plaintiff's motion for judgment on the administrative record is granted and Defendants' motion for judgment on the administrative record is denied. (Signed by Judge Robert W. Sweet on 12/11/2018) (jwh) Transmission to Orders and Judgments Clerk for processing.

USJ>C SDNY
UNI TED STAT ES DI STRI CT COURT
SOU THERN DISTRICT OF NEW YORK

I: FLECrRONfCALLY

- aga i nst -

1 7 Ci v . 4389
OPINION

THE FOX LONG TE RM DISABILITY PLAN
AND THE LIFE INSURANCE COMPANY OF
NORTH AMERICA ,
De f enda n ts .
-------- - -- - -- - ----------------------- x

APPEARANC E S :
Attor n eys for Pla i ntiff
LAW OF FICE OF MARK SCHERZER
29 Jo h n Street , Suite # 11 03
New Yo r k , NY 10038
By : Albert C. Wieber , Esq .

Attorn eys for Defendants
RUSSO & TONER LLP
33 Wh i teha ll Street , 1 6 th Floor
New York , NY 10004
B:
Kevin G. Horbatiuk , Esq .

FILED

j uoc #:
VATE FI-:- E- -,:~ + - , - ~ ~--L-:: D

CHR I STINE THOMA ,
Plaint i ff ,

''

I• DOCUMENT
1

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

l

AND ORDER

Sweet, D.J .

The plaintiff , Christine Th oma ("Thoma" or
"Plaintiff" ) , has moved for judgment on the administrative
record . The defendants, The Fox Long Term Disability Plan (the
"Plan") and Life Insurance Company of North America ("LINA")
(collectively, the "Defendants "), have also moved for judgment
on the administrative record .

Based upon the facts and conc lusi ons set forth below,
the motion of Thoma is granted , and the motion of the Defendants
is denied .

I.

Prior Proceedings

Thoma filed a claim under the Plan for Long Term
Disability ("LTD") benefits due to chron i c pain as a result of a
histor y of multiple spinal surgeries. Thoma's incur date for her
long term d isability c laim was October 10 , 2013 . Her application
was approved for benefits that comme n ced on April 8 , 2014 . Thoma
was paid LTD benefits until May 1 3 , 20 16. During that period of
time, the disability definition changed from a "Regular
Occupation " definition to an "any occupation" definition.

1

LINA advised Thoma that after reviewing her claim for
continuing LTD benefits , LINA was unable to continue paying LTD
benefits beyond May 13 , 2016 . LINA ' s initial adverse benefit
determination resulted from an Independent Medical Examination
("IME")

conducted by an orthopedic surgeon .

Thoma submitted an administrative appea l

regarding

LINA ' s initial adverse benefit determination . During her appeal ,
a Board Certified Specialist in Physical Medicine &
Rehabil i tation ,

Dr . Howard L. Grattan ("Dr. Grattan " ) , provided

LINA a summary and review of Thoma's medical records. Dr .
Grattan acknowledged that Thoma had functional impairments due
to her prior history of spinal surgery but opined that she was
not restricted from all work activity . LINA issued its final
adverse benefit determination on January 27 ,

2017 .

Thoma commenced the instant action on June 9 ,

2017

alleging violations of ERISA , 29 U. S . C . §§ 1001 et seq . The
parties instituted motions for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure and executed a
written consent , pursuant to O'Hara v. Nat ' l
Co .,

642 F.3d 110

parties '

Union Fire Ins .

(2d Cir. 2011), to a bench trial on the

submissions with the District Court .

2

The motions were heard and marked fully submitted on
June 20 , 201 8 .

II.

The Applicable Standard

Although co urts often treat motions for judgment on
the administrative record as motions for summary judgment under
Rule 56 of the Federal Rules of Ci v il Procedure , the court may
instead treat such a motion as requesting "a bench trial on the
papers[,] with the District Court acting as the finder of fact."
See O' Hara,

642 F . 3d at 116 (citati o n and qu o tation marks

omitted). In the latter scenario, "it must be clear that the
parties consent t o a bench trial on the parties' submissi o ns"
and the district court must "make explicit findings of fact and
con c lusi o ns o f law explaining the reasons for its decision."
Muller v. First Unum Life Ins . Co. , 341 F. 3d 119, 124

2003)

(2d Cir.

(citing Fed. R. Civ. P . 52(a)). Here, the parties have

exe c uted a written consent to a b e nch trial o n their
submissions. See Ho rbatiuk Deel . Ex . C. Th e findings of fact and
c o nclusions of law are acc o rdingly set forth below. 1

III. Findings of Fact

To the extent a f i ndin g of fact inc l udes a conclusion of law , it is
deemed a conclusion of law , and vi c e versa .

The facts are set forth in Plaintiff ' s Rule 56 . 1
Statement of Facts, Defendants' Counter Rule 56.1 Statement of
Facts , Defendants' Local Rule 56 . 1 Statement of Facts, and
Plaintiff ' s Counter Rule 56 . 1 Statement of Facts . Unless
otherwise indicated, Plaintiff has proven the facts set forth
below by a preponderance of the evidence.

1.

Thoma was employed as a Senior Producer by Fox

News Channel and Fox Business Network ("Fox News " ) at the time
she went out on disability . See Compl . ~21; Ans . ~21 ; AR930-31
[Thoma Resume]; AR327 [ACCLAIM Notes, "Employer Information " and
"Job Title"] .

2.

Fox News is located in New York City , and Thoma

was employed by Fox News in New York. See Compl . ~6; Ans. ~6;
AR327

["Employer Information"]; AR930-31 [Thoma Resume]; AR802

[04 - 24 - 2014 Notification of Ineligibility for N. J . State
Temporary Disability Benefits] ; AR874

[Fox News Senior Producer

Job Description] .

3.

Fox Entertainment Group Inc .

("Fox") established

and maintained a Group Long Term Disability Income Plan (the
"LTD Plan") for its employees and the employees of its
4

subsidiary and affiliate companies. See AR16 [Group Policy];
AR18 -1 9 [Group Policy Classes of Participants]; AR22-15 [Group
Policy Amendments, adding and/or revising Classes of
Participants].

4.

LINA is a corporation engaged in the business of

issuing and administering policies of group long term disability
insurance. See AR1386 [Regulatory Settlement Agreement, ~l] .

5.

The LTD Plan 's coverage is provided through a

Group Policy No. VDT-980008

(the "Group Policy") , issued by

LINA. See Compl . ~13 ; Ans. ~13; AR16 et seq.

[Group Policy];

AR2-15 [Group Policy Amendments] .

6.

Thoma was a covered participant in the Plan. See

Compl . ~16; Ans . ~16.

7.

The LTD Plan is an "employee welfare benefit

plan" subject to ERISA and is subject to enforcement under
ERISA. See Compl . ~10; Ans. ~10.

8.

Prior to the time Thoma went out on disability ,

she requested the operative LTD Plan documentation and was
provided by Fox , the Plan administrator , with a copy of the
5

Group Policy (AR16 - 48) and several of the amendments
See A. Chr i stopher Wieber Dee l.

9.

(AR2 - 16) .

(" ACW Dee l." ) !! 1 - 2 .

Subsequently , during the admi nistration of her

claim , Thoma made three separate requests for operat i ve p l an
documents - i nclud i ng spec i fic requests (on two occas i ons) for
any documents whi c h LINA believed conferred it discretiona r y
aut h o r ity . See ACW Dee l. Ex . 3 at 3 ; AR1752 . On each occasion ,
LINA provided only t he Group Policy and severa l amendments . See
ACW Dee l. !!3 - 6 ; AR94 1 -47 [ 03 - 06 - 2015 Counsel AR Request
Letter] ; AR46 1 2 [03 - 31 - 2015 LINA Response Letter ]; ACW Deel . Ex .
3 [05 - 24 - 20 1 6 Counsel AR Request Letter] ; AR391 - 95 [ 06 - 30 - 2016
LI NA AR Response Lette r ] ; AR1749 - 57 [ 02 - 02 - 2017 Counsel AR
Request Letter] ; AR369 [LINA AR Response Letter] .

10 .

At no t i me did either Fox News or LINA provide

Thoma wi th the Appo i ntment of Claim Fiduciary (" ACF ," at ARl) .
See ACW Dee l. ! 6.

11 .

The Group Policy nowhere contains language

conferr in g discretiona r y authority on LINA , no r incorporat i ng or
endorsi n g the ACF . See AR 1 6- 48 .

6

12 .

The Group Policy states that "[t]he entire

contract will be made up of the Policy , the application of the
Employer , a copy of which is attached to the Policy, and the
applications , if any , of the Insureds . " AR39. Moreover , it
states that "[n]o change in the Policy will be valid until
approved by an executive officer of the Insurance Company " and
"[t]his approval must be endorsed on, or attached to , the
Policy." See AR40 .

13.

The ACF is not designated as an amendment ,

endorsement , or attachment to the Group Po l icy , nor does it
contain language attaching , annexing , or otherwise incorporating
itself into the Group Policy . See ARl. The ACF contains
precatory language that "authorizes the issuance of appropriate
amendments to any Policies to reflect this appointment and the
authority and respons i bility granted to the Claim Fiduciary. "
Id .

14 .

Amendments to the Group Policy produced by LINA

are marked as such . See AR2 - 16 .

15 .

At the time LINA terminated Thoma's claim , the

Group Policy provided that Thoma (as a Class 1 Participant , see
AR275) is disabled if she is (1) "unable to perform the material
7

duties of any occupation for which ... she is , or may reasonably
become , qualified based on education , training or experience "
and (2) "unable to earn 60 % or more of ... her Indexed
Earnings." See AR20 .

16 .

At the time Thoma went out on disability , her

monthly earnings were $13 , 906 . 85. See AR54 , 495 , 888 , 2017 . At
the time her benefits were terminated , LINA calcu l ated her
indexed monthly earnings to be $14,004 . 20 . See AR1056 [01-252016 LINA Transferable Ski lls Analysis] . LINA thus ca l culated
the 60 % "wage requirement" as $8,402 . 52/month , or
$100 , 830.24/year. Id.

17.

Shortly after graduating from Rutgers University

with a B. A. in Communications , Thoma started work as a Page at
NBC in 1987. See AR92 2 [10-14-2015 C . Thoma Letter]. She
remained at NBC for 13 years and was promoted to news writer in
1988/89 (at age 24 , the youngest to hold that position at that
time), to segment producer , and , ultimately , to field producer
(during the period between 1992 and 2000). Id . See also AR930 - 31
[C . Thoma Resume] ; AR216- 1 9 [06-26-2014 SSA Work History
Report].

8

18.

In May 2000, Thoma was hired by Fox News as a

line producer and, within a few years, she was promoted to
Senior Producer.

Id. In that capacity, she ultimately oversaw

"all editorial, production, and control room duties for daytime
and primetime shows" and produced "breaking news, business news,
crime stories, politics and general news coverage." Id. During
her time at Fox, she was Senior Producer for such programs as

Fox & Friends,

On the Record with Greta Van Susteren, and

Dayside with Linda Vester.

Id. With several short interruptions

(to work on a documentary in 2007, and to provide election
coverage from October to No v ember 2011), Thoma continued to work
as a Senior Producer for Fox until her condition forced her to
stop working in October 2013.

19.

Id.

Thoma expressed pride and a sense of

accomplishment in her career:

I am extraordinarily proud of my career in
television production. I worked in the industry
for 26 years, a woman in a male-dominated field,
starting with a page position at NBC, and
attaining one of the highest rungs in the
business, as a senior producer on nationally
prominent TV shows on Fox. I am a news-aholic and
media-junky. I loved working in this field, and
would happily return to work if it were at all
possible.

AR922

[10-14-2015 C. Thoma Letter].

9

20.

Thoma met her husband, Rich Thoma, at Fox News in

2001. See AR938 [10-12-2015 R. Thoma Letter]. Mr. Thoma attested
that she "was in charge of (2) hours of programming on the
weekend ," "was very much a leader whom the talent and control
room crew respected," and "she l oved her job and was promoted
several times over her Fox career. " Id.

2 1.

Dr. Vessa, who has treated Thoma for over 10

years, corroborated Thoma's dedication, writing that "I have no
doubt from what she reported to me that she very much enjoyed
her career ," and observ ing that "[s]he and her husband did the
same kind of work and I think that formed a bond between them."
See AR1174-75 [10-12-2015 Dr. Vessa Letter].

22 .

Thoma was diagnosed as a child with severe

scoliosis. See AR922, 1248, 1761, 1853, 1983. Since the age of
14 (in 1979), Thoma has undergone a series of major surgeries to
her back. AR727, 1540, 1759, 1853, 1983, 2026.

23.

The first surgery, intended to correct her

scoliosis, was the implantation of Harrington Rod
instrumentation and a fusion from T4 to L4.

Id. This surgery was

a major procedure, during which "[t]he surgeon lays bone grafts
10

across the exposed surface of each vertebra " so that "[t]hese
grafts will regenerate, grow into the bone, and fuse the
vertebrae together." AR2153 et seq . In order "[t]o support the
fusion of the vertebrae , the surgeon uses a steel rod, extending
from the bottom to the top of the curve ," which "is attached by
hooks that are suspended from pegs inserted into the bone." Id.
Th e "st eel rod is jacked up and then locked into place to
support the spine securely." Id. Recovery is prolonged and
difficult, as "patients must wear a full body cast and lie in
bed for 3-6 months until fusion is comp lete enough to stabilize
the spine ." Id. In Thoma's case , she was placed in a body cast
for nine months. See AR1983-84.

24.

While the Harrington Rod fusion procedure was

considered "go ld standard" treatment for scoliosis in 1979, by
the mid-1980s it was being replaced by other instrumentation
procedures - such as the Luque Rod, the Luqu e-Harrington Rod,
the Cotrel-Dubousset , and the Texas Scottish-Rite Hospital
procedures - because of the documented inadequacies and failures
associated with the Harrington Rod fusion procedure. AR2165. See
also AR590 et seq. In particular, the following relevant

shortcomings have been well-reported in the medical literature:

11

•

Substantial Probability of Developing Flat-Back
Syndrome: "About 40 % of Harrington patients have a
condition called the flat back syndrome , because the
procedure eliminates normal lordosis (the inward
curving of the lower back) .... In later years ,
however, the disks may collapse below the fusion,
making it difficult to stand erect , and the condition
can cause significant pain and emotional d istress ."
See AR2165 . See also AR590("Unfortunately, the use of
distraction as the sole correction tool resulted in
the loss of normal sagittal plane alignment " and
"[t]he loss of normal lumbar lordosis was associated
with ' flat back syndrome'"); AR974 , M. O. Lagrone,
"Treatment of Symptomatic Flatback After Spinal
Fusion," 70 J. Bone Joint Surg . Am . 569 - 80 , Apr . 1988
("The previous use of distraction instrumentation with
a hook placed at the level of the lower lumbar spine
or the sacrum was the factor that was most frequently
identified as leading to the development of the
flatback syndrome " ) ; AR1214 et seq., at 1215-16, B.S.
Lonner, " FAQs About Flatback Syndrome ," downloaded
from SpineUniverse, Sept . 2015 ("Patients treated with
Harrington rods often did very well for years or even
decades. Their spine could compensate for the
'fl attening' of lordosis with normal discs below the
fusion. Eventually, as the discs below the fusion wore
out (degenerated) , the individual lost the ability to
stand upright and developed pain"); AR2182 et seq. , at
2183 , Wheeless' Textbook of Orthopaedics , "Ha rrington
Instrumentation," 2012 ("Reduced lumbar lordosis 'flatback' deformity - can develop over time.")

•

Increased Incidence of Pain Associated with Flat-Back
Syndrome and Lumbar Rod Fixation: "Iatrogenic loss of
lordosis is now frequently recognized as a
complication following placement of thoracolumbar
instrumentation, especially with distraction
instrumentation. Flat-back syndrome is characterized
by forward inclination of the trunk, inability to
stand upright, and back pain .... The most common cause
of the deformity includes the use of distraction
instrumentation in the lumbar spine and
pseudarthrosis ." See AR961 et seq., at 961 , G. C.
Wiggins, et al. , "Management of Iatrogenic Flat-Back
Syndrome ," 15 Neurosur. Focus 1-9, 2003 . See also
AR2182, Wheeless ' - "Harrington Instrumentation,"
("Lower level of arthrodesis in lumbar curves should
12

not extend to lower lumbar region unless it is
absolutely necessary; a v oid arthrodesis to L-5 & L-4,
if possible; [with] lower level of arthrodesis, there
is more back pain"); AR2 215 et seq., at 2215, V.
Sarvahi, et al., "Characterization of Gait Function in
Patients with Post-Surgical Sagittal (Flatback)
Deformity: A Prospective Study of 21 Patients," 27
Spine 232 8 -37, Nov. 2 002 ("Patients with flatback
develop several compensatory mechanisms. The goal of
the compensation is to maintain an efficient gait and
decrease joint damage, but these safeguards fail over
time. Flatback not only causes backache, abnormal
posture, and abnormal body mechanics but also
compromises the stability of gait and taxes the knee
and hip joints adversely"); AR957, "FAQs About
Flatback Syndrome," ("The main symptoms are difficulty
standing upright with low back and often thigh and
groin pain. The patient's symptoms typically will
worsen as the day progresses with a sense of fatigue
and increasing difficulty in the ability to achieve
erect posture. Patients flex or bend their hips and
knees to allow them to obtain an upright position.
This is often exhausting as the day progresses. Some
patients also have symptoms of sciatica and spinal
stenosis with leg pain and weakness exacerbated by
walking. Some individuals will have neck and upper
back pain as they strain to align themselves. These
symptoms often become disabling, requiring narcotic
medications, and limiting the individual's ability to
perform routine daily activities."); AR2184 et seq.,
at 2184, K.J. Paonessa, et al., "Back Pain and
Disability After Harrington Rod Fusion to the Lumbar
Spine for Scoliosis," 17 Spine, Supp. 8, 249-53, Aug.
199 2 ("The study group had a higher rate of secondary
surgeries for complications or late disc disease below
the fusion, a higher back pain score, more
difficulties with normal daily activities, needed more
regular pain medications, and had more episodes of
back pain"); AR2192 et seq., at 2192, 2196, B.K.
Potter, et al., "Current Concepts Review: Prevention
and Management of Iatrogenic Flatback Deformity," 86
J. Bone Joint Surg. 1793-1808, Aug. 2004 ("The
etiology of flatback syndrome may be multifactorial,
but the most common cause is iatrogenic loss of lumbar
lordosis secondary to Harrington distraction
instrumentation"); id. ("At the time of a ten-year
follow-up, Cochran et al. noted subjacent
13

retrolisthesis in fifteen (63 %) of twenty four
patients with a fusion to L4 or LS; all fifteen had
low-back pain , and eleven had degenerative changes ." )
•

Increased Incidence of Degeneration Above/Below Fusion
Levels: " The essentia l prob l em in fusion , despite its
frequent success, is that the lost mobility of the
fused segment places additional stresses on adjacent
levels of the vertebral column . The consequence is an
increased likelihood of degenerative changes ,
ligamentous instabi l ity , and even fracture at leve l s
adjacent to a successful fus i on construct. " See AR558
et seq ., at 567 , P . M. Young , et al ., "Complications of
Spinal Instrumentation , " 27 RadioGraph i cs 775 , MayJune 2007 . See also AR2189 et seq ., at 2190 , G.
Ghiselli , et al. , "Adjacent Segment Degeneration in
the Lumbar Sp i ne , " 86 J. Bone Joint Surg . Am ., 1 497 1503 , Jul . 2004 (After posterior lumbar spine fusion ,
"[t]he rate of symptomatic degene r at i on at an adjacent
segment warranting either decompress i on or arthrodesis
was predicted to be 16 . 5% at five years and 36 . 1 % at
ten years. " )

•

Revision Surgery for Flat-Back Syndrome Has a Low
Complete Success Rate : "If rev i sion surgery for FBSS
[Failed Back Surgery Syndrome ] is technically
challenging and may be associated with high risk of
complications . . . and lower clinical outcomes ,
revision surgery in patients treated more than 20
years before with spinal fus i on and Harrington Rod
stabilization for adolescent scoliosis i s even more
challenging ." AR2170 et seq . , at 2 1 72 - 73. See also
M.A . Marino , "Two Cases of Failed Back Surgery
Syndrome After Correct i on and Stabil i zation Surgery
for Scoliosis with Harrington Instrumentation , " 87
Acta Biomed Supp. 1 , 112 -1 15 , 2016 (" In a
retrospective study , Cho et al revealed 34 . 4 % of
serious compl i cations in patients who had a surg i cal
mu l tilevel revision operation for sp i na l deformity ,
with a negative impact on clinical outcomes " and
"Glassman et al described a per i operative complication
rate of 62% in revision spine surgery performed after
previous operations for scoliosis ." ) ; AR2174 et seq .,
at 2174 , H. Elgafy , et al ., "Rationa l e of Revision
Lumbar Spine Surgery , " 2 Global Spine J . 7 , 20 1 2
(" Revision lumbar spine surgeries are techn i cally
challeng i ng with inconstant outcome results") ; AR 974 ,

14

"Treatment of Symptomatic Flatback After Spinal
Fusion," (after revision surgery , "47 per cent .. .
continued to lean forward and ... 36 per cent .. .
continued to have moderate or severe back pain , " and
"[t ] he failure to restore sagittal plane balance led
to a higher rate of pseudarthrosis , which was
associated with recurrent deformity " ) ; AR2205 ,
"Current Concepts Review , " (" The management of
iatrogenic flatback syndrome is difficult and complex ,
with a high rate of operative morbidity ." )

25.

Within several years of her surgery , it was

apparent that Thoma ' s Harrington rod instrumentation broke and
that she was suffering from a painful fusion fa il ure , i. e., a
pseudarthrosis , at the L3 level. AR1759 , 1867 , 1984. She
underwent two additional surgeries to correct this L3
pseudarthrosis-first in 1982 (at age 1 7) , and again in 1990 (at
age 26) , with the insertion of two smaller rods , after the first
surgery proved unsuccessful . AR1540 , 1984 . Even so , Thoma
endured increasing pain as she grew older and her spine suffered
the wear and tear of the altered biomechanics - and flatback
syndrome - resulting from her fusion . AR1983-93. Major revision
surgery was recommended as early as 2002 , but Thoma wished to
exhaust conservative treatment . AR1984 . By 2011 (at age 46) , her
pain had become so pers i stent that she felt compelled to u ndergo
the flatback r evision surgery. AR358 , 365 , 861 , 1624 , 1984-85 .
In add i tion to the surgical attempt to restore some l ordosis to
her lumbar region , it was determined that she shou l d undergo
15

additional fusion (down to the S-1 level) due to adjacent
degenerative changes she suffered at levels below her prior
fusion.

Id. While the revision surgery provided some relief,

this was incomplete and (as in the past) Thoma's pain gradually
returned. See AR1178-86, 1983-93. A further pseudarthrosis, at
T8-T9 was identified in 2013 . AR1623, 1627, 1759. Additionally ,
Thoma developed painful degenerative changes in her cervical
spine, for which she ultimately underwent a cervical fusion at
CS to C7 , in 2013 . AR843-46 , 1178-86, 1983-93. The cervical
fusion provided incomplete relief and, on top of the ongoing
pain associated with her failed back syndrome (which
additionally included associated hip pain and tenderness), Thoma
recognized that it was no longer possible for her to work . Id.

26 .

Thoma took a short-term disability ("STD")

leave

starting April 23 , 20 11, in relation to the flatback revision
surgery she underwent at that time. AR349 , 358 , 363. LINA
approved her for STD benefits through October 1, 2011, the date
on which her physicians approved her for return to work. AR33368 , at 344 , 348 , 478, 479-80.

27 .

On October 10 , 2013 , to accommodate her cervical

fusion, Thoma commenced another STD leave. AR304 - 32 at AR327 .
Thoma found herself unable to return to work and was obliged to
16

transition to LTD Pl an benefits , which became effective on April
8, 2014 , after the Plan ' s 180 - day "e l imination period . " AR21 ,
51.

28.

Throughout the first two years of her LTD claim ,

LINA repeatedly approved Thoma for "own occupation" benefits.
Among the factors cited by LINA's lay and medical examiners
were:

( 1) her self - reported pain ,

misalignment ,

(2) her ongoing spinal

( 3) her potent opiate pain management regimen,

( 4)

the accumulated surgical insult to her spine , and (5) her gait
disturbance (as observed on clinical examination and on LINA ' s
surveillance film) :

•

03-19-2014: Claim Strategy : "S/s [subjective symptoms]
- chronic back/neck pain , chronic cramping/spasms ,
cannot sit for longer than 40 min , numbness in arms,
nerve pain throughout . Tx [treatment ] plan - medsoxycodone , lyrica , hydrocodone and valium.
. Per
NCM [Nurse Case Manager] staffing - Based on available
medical info , physical functional impairment is
supported from ID [Initial Disabi l ity Date] forward as
evidence lordosis and cont to do chin exercises xrays
showed fusion. Per DOT ex has light occ .
Reasonable to approve claim and f/u in 2 months for
updated meds." AR275-770.

•

06-10-2014: NCM Review (Orozco) : "R&Ls [restrictions
and limitations ] are supported for another 3 - 4 mos
as evidenced by customer hx [history] of multiple
spinal fusion surgeries in past , most recent ACDF
10/10/13 with residual ongoing chronic pain managed by
pain mgt with multiple opiate and other medications.
Pain management notes document antalgic gait . " AR24951.
17

•

12-28-2014 Dr . Garvey Independent Medical Evaluation
("IME"): " [S]he is cautious with walking , has a mi l d l y
antalgic gait , and does hold her back in a
straightened pos i tion .
. I do believe that Thoma
may experience pain in the cerv i cal , thoracic , l umbar
and hip regions .
. Due to the narcotic and mind
altering med i cat i ons , I would l i mit her from
performing Safety Sensitive work duties. " AR672 - 79 , at
67 9 .

•

01-26-2015 Exploratory Transferable Skill Assessment
("ETSA"): Karen Franz , MS , CRC , CCM - reviews Garvey
IME results then states : " Based on the emp l oyer
provided job description for Senior Producer , t h e
fo l low i ng DOT was ident ified DOT 159 . 117 - 010 Producer .
The occupation is performed at the light physical
demand level . The c l aimant ' s restrict i ons are not
cons i stent with the required physica l demands of her
occupation. " AR209-10 .

•

02-11-2015 Claim Strategy: " TDOO [Totally Disabled Own
Occupat i on ] - Cx [Claimant] underwent IME on 12/28/ 1 4
and based on 00 analysis RLs [ restrictions and
limitations] provided are not consistent with ex own
occ ." AR200 - 01 .

•

03-13-2015 LINA Telephone Note
Thoma: " Cx [claimant] is being
is understood , per policy , she
occupation ] or at her previous
AR194 .

29 .

of Communication to
prov i ded benefits as it
cannot work 00 [own
functional level ."

Based on its assessment of her LTD Claim , LINA

made a l ump sum settlement offer on March 5 , 2015 , see AR197 ,
463-66 , reflecting its be l ief that her condition was not
anticipated to i mprove thro u ghout the rema i nder of the " own
occupation " period (i.e ., through Apri l 8 , 20 1 6) , but that she
would remain disabled for the entire next year .

18

30.

At the time of this offer, LINA had undertaken

two rounds of surveillance, from June 24 , 2014, through June 27 ,
2014 , AR751-73, and from October 20 , 2014 , through October 22,
2014 , AR686 - 704, and Allsup - its designated vendor for pursuing
Social Security disability ("SSD") benefits - was actively
pursuing Thoma's disability claim with the Social Security
Administration.

31 .

The SIU/Surveillance Claim Referral dated May 6,

2014 , which initiated the first two rounds of surveillance,
listed three "Red Flags" as the basis for conducting
surveillance: " Claimant May Be Working: ... D No SSDI " and
"Doctor /Medical Doc Issues: ... D Excessive Limitations " and " D
Continued Extensions." AR2225 - 26; AR2291-92 . Contrary to the " No
SSDI" notation , Thoma was already working with LINA's designated
SSD vendor Allsup to secure SSDI. See AR264 , 268. Moreover, SSA
requires a claimant to be disabled for "five full calendar
months." AR543 [SSA Notice of Award]. There was no documentation
of "continued extensions" noted anywhere in LINA's ACCLAIM
notes. LINA's final SIU Report asserted that in addition to
these three "red flags," the claim examiner reported two
additional "red flags," including "extended recovery period" and
"cannot provide a PAA. " AR751 [07 - 08-2014 Surveillance Report] .
However, there is no ACCLAIM notation that LINA viewed Thoma's
19

recovery as "excessive" or "extended" at that time, and there
were internal medical approvals of her disability before and
after the claim referral . LINA had just referred her to its SSA
vendor on the presumption that her disability would continue.
Dr . Vessa returned a Physical Ability Assessment ("PAA")

form on

May 20 , 2014 . AR792 - 93 [05-20 - 2014 Vessa PAA]; AR259 [ACCLAIM
Note]

("5/22/2014 - Received OVN and PAA ." ).

32 .

Despite two specific requests, see ACW Deel. Ex.

3 and AR1749-57, LINA did not produce the SIU/Surveillance Claim
Referral prior to Plaintiff ' s discovery requests in this
litigation.

33 .

On April 25 , 2014 , LINA arranged for its

designated Social Security representative, Allsup , to press
Thoma's claim for SSD benefits before the SSA . AR264 , 268 . On
May 29 , 2014, Allsup accessed and copied Thoma's medical records
from LINA's file. ACW Deel ., ~17 & Ex. 14 .

34.

LINA required Thoma to pursue SSD benefits by

requiring her to sign a Reimbursement Agreement that allowed it
to reduce her LTD Plan disability benefits by an estimated
amount of her SSD benefits if she did n ot proactively apply for

20

such benefits. AR806 [04-03-2014 Reimbursement Agreement]; AR33
[Group Policy - "Assumed Receipt of Benefits"].

35 .
AR2047

Although SSA initially denied Thoma's claim,

see

[SSA Claim File], Allsup filed an appeal and benefits

were ultimately approved and paid by Notice of Award, dated
April 27, 2015, see AR185 [ACCLAIM Notes], AR1075-78

[04-27-2015

SSA Notice of Award]. Allsup immediately notified LINA of the
approval on or about May 6, 2015. AR1074 . LINA then calculated
and collected a retroactive overpayment from Thoma's SSD
benefits in the amount of $49 , 881.00 , recovered on June 15 ,
2015 , and instituted a reduction in the monthly benefit amount
it paid to Thoma from $8 , 344 . 00 to $4 , 507 , after deducting for
the primary and dependent benefits payable to Thoma. AR57, 185,
1068-74.

36.

Vocational consultant Victor Alberigi

("Alberigi") reviewed and evaluated SSA ' s claim file , in light
of his experience in Social Security disability proceedings , and
noted the following:
•

"[A]n SSA medical consultant .
. concluded that
'based on the available evidence the orthopedic
impairment is severe and very limiting .... "

•

SSA concluded that "one or more of [Thoma's]
medically determinable impairments can be
expected to produce her pain and other symptoms,"
21

and that Thoma's "statements about the intensity,
persistence , and functiona ll y limiting effects of
the symptoms [are] substantiated by the objective
medical evidence alone. "
•

"[B]ased on the updated medical records obtained
for SSA ' s reconsideration of Thoma ' s claim , the
medical consultant (Wallace Wells , M.D . ) ,
reported that ' claimant ' s claims are credible. '"

•

"SSA reported that Thoma ' s total Residual
Functional Capacity was 'L ess than Sedentary ' due
to the alternate sitting/ standing every 15
minutes and limitation to never stoop , which
significantly erodes the sedentary occupational
base.' "

•

SSA ' s decision reflected its determination that
Thoma was " continuously disab l ed under Social
Security ' s rules from 10/9/13 through 4/21/15"
and that its assignment of an " MIP 3 indicates
that SSA does not plan to review Thoma's medical
evidence until 03 - 01 - 2018 because cessation of
disability , as defined by SSA , is
unlikely/improbable during the intervening 3 - year
interval."

•

SSA ' s decision reflects its determinat i on that
Thoma is incapable of "substantial gainful
activity , " which SSk defines as the ability to
generate monthly income of at least $1 , 040 , in
20 1 3 ; $1 , 070, in 2014 ; ... $1 , 090 , in 2015 , and in
2016, $1 , 130. "

•

" Soc i al Security does not appear to have applied
any specia l rules due to advanced age , lack of
education , or past work experience ."

•

"SSA concluded that a full evaluat i on of past
relevant work , and potential transferable skills,
could be expedited because of this substantial
diminution in Thoma's sedentary work capacity."

AR2054 et seq ., at 2056 , 2062 .

22

37.

Within several weeks after Allsup notified LINA

that Thoma had been awarded SSD benefits , LINA initiated
surveillance via a "Claim Referral" to its Special
Investigations Unit

("SIU") . AR2291-92 [06-01-2015

SIU/Surveillance Claim Referral ; see also AR180

(indicating that

a Follow-up Task was created on 05-21-2015 to "f/u [follow up]
on SIU ." )

38 .

LINA listed two "Red Flags" as the basis for

conducting surveillance: "Claimant May Be Working:

0 Allegation Phoned In" and "Doctor/Medical Doc Issues: ... 0 No
Objective Testing by Doctor ." AR2291-92 . No third-party
allegation of purported work by Thoma is reported anywhere in
LINA's claim notes, though Thoma reported to LINA that she was
potentially interested in writing or blogging as an alternate
work activity. See AR263

(noting that "Cx [claimant] says she

is now looking into writing as this would allow her to lay down
in b/w [between] writing" and that "Cx is interested in RTW
[return to work] in a different field , as mentioned earlier
maybe in writing"). The final SIU Report asserts that the Claim
Manager reported two new red flags - "Ex tended Recovery Period "
and "Continued Extensions" - in addition to "No Objective
Testing by Doctor." AR610 . The "phoned in allegation" is dropped

23

from this list. Neither of the new red flags are documented
anywhere in the claim notes.

39.

LINA made no effort to obtain Thoma's SSD claim

file until March 1, 2016, nearly 10 months after it was first
advised of SSA's disability determination. AR404-05.

40.

Under the terms of the 2013 Regulatory Settlement

Agreement (the "RSA"), AR1386, et seq., entered into after an
audit of LINA's Glendale CA Office, from January 1, 2009,
through December 31, 2010, LINA agreed to institute procedures
whereby "the Company will make a reasonable effort .

. to

obtain SSA records" and will give the SSD award "significant
weight," meaning "that the SSA records relating to the SSDI
award are reviewed and consideration of the SSA's judgment that
a claimant is disabled for [So cial Security disability Income
(SSDI)] purposes will generally be an essential element of the
Disability evaluation under the governing Disability contract."
AR1401, RSA, Ex. B. LINA agreed to these procedures as a
consequence of the California Department of Insurance Report of
the Targeted Market Conduct Examination of the Claims Practices
of Life Insurance Company of North America ("the Market Conduct
Report"), adopted June 4, 2012, see AR1419 et seq., which cited
LINA for its "failure to obtain, consider or reconcile the
24

complete Social Security Disability Income (SSDI) records
relating to an award of SSDI benefits." AR1425. Similar findings
were made by the Massachusetts and Maine Departments of
Insurance. AR1443 et seq. , at 1450; AR1458 et seq. , at 1465 .

41 .

These same obligations to obtain SSA claim file

records and to give them significant weight are also reflected
in LINA's internal policies and procedures . 2 See, e.g. , AR2311
[LINA Po licy: "Social Security Awards and Disability
Determinations"]

("The Company will make a reasonable effort ,

consistent with all applicable SSA regulations, manuals; and
guidelines, to obtain SSA records"); id.

("Affording significant

weight to a SSDI award means that the SSA records related t o the
SSDI award are reviewed and consideration of the SSA's judgment
that a c laimant is disabled for SSDI purposes will generally be
an essential element of the Disability evaluation under the
governing Disability c ontract ." )

42 .

After receiving its surveillance report,

see

AR610 et seq ., LINA requested (and Thoma provided) updated
medi c al and disability information. LINA asserted that "if there
is no me dical information available to gather to clarify

2

Al t h o u gh LINA d i sputes that i ts interna l polic i es are pa r t of t h e AR ,
t h ey a r e part of t he AR unde r ERISA ' s p rocedural regulat i o n s . See Part IV . 2 ,
i nfra.

25

functionality ,

[it would] scheduling [Thoma] for an Independent

Medical Evaluation" ("IME") (AR449 - 50 . ) Thoma then provided
responses on September 17 , 2015 , AR1532-1611 , and October 14,
2015, AR1612 - 83 . On or about October 8, 2015 , LINA initiated an
IME, despite the fact that it had already received Thoma ' s
September 17th submission and was anticipating her October 14th
submission. See AR123

(listing IME "Vendor Referred Date" as 10-

08-2015). See also 1684 et seq. , at 1685.

43 .

Thoma raised several concerns regarding the

proposed IME examiner , Dr. Arnold Berman, including :

•

Dr. Berman ' s treatment and research focus was on hip
replacements , knee replacements , and ankle surgeries .
AR1686 , AR1740 - 46.

•

Dr . Berman had at least 10 malpractice lawsuits filed
against him in one five-year period . AR1686 , AR172733 , AR1736-39.

•

Dr. Berman filed two false biennial registrations - in
2002 and 2004 - that failed to report the malpractice
actions listed above , resulting in a public censure
and fine by the Pennsylvania Board of Medicine .
AR1735-39 .

•

LINA provided Dr. Berman with incomplete records .
AR905-08 , AR1051-54 , AR1082 - 83.

Despite these concerns , LINA elected to proceed with
Dr . Berman as the IME examiner. At the appeal stage , Thoma

26

identified additional concerns regarding Dr. Berman, AR1844 - 46 ,
including:

•

Doctor Berman operates Comprehensive Medical Associates,
LLC, which is organized solely for the purpose of
performing external medical reviews. AR1475-77, 1478. Dr.
Berman generates annual revenue of $802,381 fr om this
business alone, which does not include Dr. Berman's income
from medical examinations performed directly through other
compa nies (such as MES Solutions) and insurers. AR1478.

•

Patient reviews included a sizeable number of extremely
negative evaluations, resulting in a score of 1.5 out of 5.
AR1483-91.

44.

Upon receipt of Dr. Berman's IME report, LINA

conducted a transferable skills analysis

("TSA") that considered

Dr. Berman's opin i on to the exc lusion of all ot h er medical
evidence in LINA's possession. AR121, AR1056-57.

45 .

Thoma had specifically requested and understood

that she was being provided an oppo rtunity t o review and respond
to Dr. Berman's report. ACW Deel Ex. 3 [05-24-2016 Counsel's
Letter Objecting to Rushed Decision and Requesting AR], at 1-2.
See also AR1107-11 [10-22-2015 Counsel's Letter]; AR1082-83 [12-

17-2015 Counsel's Letter]; AR1051-54
Letter]; AR906-08

[01-0 6-2016 Counsel's

[02-09-2016 Counsel's Letter]. She advised

LINA that responses would be provided by her treating physicians

27

on or before May 20 , 2016 . AR1500-02 [04-01-2016 Counsel 's
Letter]; AR1494-95 [04-14-2016 Counsel 's Lette r] .

46.

Based exclusively on Dr. Berman's IME report, the

2015 Surveillance , and the TSA - and without having received the
SSA claim file it had requested or the responses from Thoma's
treating physicians - LINA terminated Thoma's claim , by letter
dated May 13, 2016 . AR386 - 89 ; ACW Deel. Ex. 3 [05-24-2016
Counsel 's Letter Objecting to Rushed Decision and Requesting
AR] .

47 .

By letter dated November 8, 2016 , Thoma appealed

LINA's claim termination. AR1810-48 . Thoma's appeal included:

•

Records and letters from Paul Vessa , M. D.
Surgery), including:

(Orthopedic

•

•

Narrative letter, dated May 13, 2016 , intended as
a pre-decision response to the report of LINA's
external consultant Dr. Berman (AR1853-55);

•

Dr. Vessa's medical chart from March, 2014 , to
the present (AR1856-1933);

•
•

Detailed examination report, dated September 27 ,
2016 (AR1849-52);

Dr. Vessa 's medical credentials (AR1934-42) ;

Records and letter from Joseph Valenza , M . D.
Medicine) , including:

28

(Pain

•

Letter, dated April 11, 2016, intended as a predecision response to the report of LINA's
external consultant Dr. Berman (AR1943);

•

Updated treatment records from Dr. Valenza
(AR1944-61);

•

Dr. Valenza's medical credentials

(AR1962-71);

•

A Physical Ability Assessment completed by consulting
physician Dante Implicito (Orthopedic Surgery),
together with Dr. Implicito's medical credentials
(AR1972-82);

•

Letter of Christine Thoma, dated November 7, 2016
(AR1983-93);

•

Social Security Administration disability claim file
documentation for Thoma, including (AR1994):

•

07-21-2014 Richard Thoma Questionnaire

•

09-21-2014 Psychiatric Consultative Examination, Dr.
Khoshnu (AR2004-07);

•

10-01-2014 Christine Thoma Claimant Questionnaire and
Work History Report (AR2010-25.);

•

03-19-2015 Orthopedic Consultative Examination & Xrays, Dr. Vehknis (AR2026-33);

•

04-21-2015 SSA Disability Determination Explanati on
(AR2034-49);

•

04-27-2015 SSD Award Notice (AR2050-53);

•

Vocational Evaluation report of Alberigi, CRC, LPC,
LSW, CDMS, ABVE-A, dated September 20, 2016, together
with a copy of Alberigi's resume (AR2054-80);

•

Supplemental vocational and medical information
referenced by Alberigi in his report (AR2081-2152);

29

(AR1995-2002);

•

Additional medical articles regarding Thoma's medical
condition, surgical procedures, and treatment outcomes
(AR2053-2224);

•

Still-frame color images taken from LINA surveillance
film (w ith straight lines marked in red to highlight
Thoma's postural imbalance) (AR2340-59);

•

The California Department of Insurance Report o f The
Targeted Market Conduct Examination of the Claims
Practices of Life Insurance Company of North America,
adopted June 4, 2012 (AR1384-1473); and

•

Supplemental information regarding Dr. Arnold Berman
(AR1474-91).

48.

In a cover letter to the appeal, also dated

November 8, 2016, Thoma specifically requested (1) "a reasonable
opportunity to review and respond to any supplemental medical
review obtained ... on appeal"; and (2) that all appeal level
communications (including those between LINA's medical
consultants and Thoma's physicians) be conducted in writing and
with notice to counsel. AR1808-09. By letter dated December 2,
2016, Thoma again requested a reasonable opportunity to review
and respond to any new medical opinion obtained by LINA during
the appeal stage. AR1805-06.

49.

On or about December 23, 2016, Thoma's counsel

learned that LINA's medical consultant, Dr. Grattan, had failed
to comply with the request for written communications (with

30

no t ice to counsel ' s office) and had attempted to contact Thoma's
physicians directly, via telephone. ACW Deel. Exs . 15-17 . Dr.
Grattan subsequently complied and provided written questions for
Thoma 's treating physicians. Id.

50 .

On January 10, 2017 , in response to these

specific questions posed by the peer review consultant retained
by LINA for the appeal, Thoma submitted responses from her
treating physicians . 3 AR1758. Those submissions included:

•

Dr. Vessa Letter, dated January 4, 2017

(AR1759 - 60) ;

•

Dr . Valenza Letter, dated January 9 , 2017
62 . ).

(AR1761 -

51. By letter dated January 19 , 2017 , LINA explained
that its peer consultant medical report had been completed and
already forwarded to LINA's vocational consultant for
preparation of a transferable skills analysis. AR376. In
response, Thoma wrote a third time , on January 20, 2017 , to
request that she be given a reas o nable opportunity to review and
respond to the new medical report. ACW Deel. Ex . 17 .

3
Thi s co rre s pondence is e xcluded f r om LINA ' s production of the
Admi nist r at i ve Record , even t hough clearly " submit ted , considered , or
gene r ate dn with r espect to Thoma ' s c l aim .

31

52.

LINA denied Thoma's appeal, by letter dated

January 27, 2017, based exclusively on Dr. Grattan's peer
consultant report and the TSA which was based upon it. AR371-74.
Thoma was not afforded an opportunity to review and respond to
the peer consultant report, although LINA never affirmatively
refused Thoma's request to do so. AR1749-57

[02-02-2017

Counsel's Post-Appeal AR Request and Protest Letter].

53.

Thoma has had an extended history of major

surgical interventions. As noted above, these have included a
T4-to-L4 fusion with Harrington rod instrumentation (1979), two
surgeries for correction of a resulting L3 pseudarthrosis

(1982,

1990), spinal fusion revision and flatback correction surgery,
extending her fusion to Sl (2011), and a C5-to-C7 fusion

54.

(2013).

After her surgical history, Thoma continued to

exhibit significant, objectively-documented abnormalities which
includes the following:

•

Sagittal Imbalance and Other Postural Abnormalities:
Despite the flatback revision surgery Thoma underwent
in 2011, she still exhibits significant spinal
misalignment. This includes:

•

Sagittal Imbalance:
Recs, X-Ray: "There
sagittal imbalance.
is present.u AR526.

See, e.g., 05-15-2015 Bridwell
is approximately 5 cm of anterior
Minimal inferior left pelvic tilt
See also AR848 10-16-2013 Dr.
32

Vessa Chart Notation ("Her x-rays show that she does
forward list her head.") This imbalance is also
reflected on physical examination findings. See, e.g.,
AR851, 855, 11-18-2013 and 12-02-2013 Excellent PT
Records: on physical examination, "Forward
Head/Rounded Shoulders; Moderate"; AR1868, 1880, 0401-2015 and 04-22-2015 Excellent PT Records: on
physical examination: "Flat back posture with rounded
shoulders and protracted neck" and "strt [straight]
back (fused), sl fwd [slight forward] head.") LINA's
video surveillance documents Thoma's sagittal
imbalance. As reflected in the still-frame images
drawn from the surveillance, Thoma is frequently seen
in a characteristic flatback posture, with her head
and shoulders tilted forward relative to an alignment
from her feet and hips. (AR2340, 2341, 2342, 2345,
2346, 2347, 2356, 2358, 2359.) On other occasions,
particularly when standing for sustained periods,
Thoma also demonstrates a compensatory posture, with
her knees slightly flexed and pelvis also slightly
pitched. (AR2351, 2352, 2353, 2354, 2355, 2357. See
also AR957, "FAQs About Flatback Syndrome," supra:
"Patients flex or bend their hips and knees to allow
them to obtain an upright position"; AR975, K.J.
Hamilton, et al., "Flat Back and Sagittal Plane
Deformity," from Youmans Neurological Surgery, 6th
Ed., Chapter 288, Elsevier-Saunders: Phila. 2011:
"Forward inclination of the trunk ... and difficulty
extending the knees when standing erect" produces a
"sagittally imbalanced posture [that] results in the
need for continual hip and knee flexion to maintain an
upright stance"; AR1221, "Management of Iatrogenic
Flat-Back Syndrome" ("Patients require first extension
of the hips and then knee flexion and cervical
extension to maintain horizontal gaze").
•

Post-Fusion Cervical Straightening: See, e.g., 03-202015 SSA X-ray (AR1193.); 10-16-2013, 11-20-2013, 1223-2013, 02-05-2014, and 02-29-2016 Cervical Spine XRays (AR849, 854, 858, 869, and 1923.); 03-25-2015
Vessa Chart Notation (AR1182.), Diagnostic impression:
"kyphotic posture above the [cervical] fusion."

•

Persistent Scoliosis: See, e.g., 03-20-2015 SSA X-ray
(AR1194.): Lumbar: mild scoliosis with convexity
towards the left; 04-24-2015 Vessa CT Thoracic Spine
33

(AR1191.): dextroscoliosis, apex centered at T8 -T9;
0 4-24-2015 Vessa CT Lumbar Spine (AR1192.):
Levoscoliosis with apex at Ll-L2; 05-15-2015 Bridwell
Recs, X-Ray (AR526.): "there is unchanged mild rotary
S-shaped scoliosis of the thoracolumbar spine"; "There
is unchanged mild kyphosis of the thoracolumbar
junction and upper lumbar spine."
•

Abnormal Gait: Thoma's gait has been repeatedly
observed as abnormal. See, e.g., 11-11-2013, 12-092013 , 03-07-2014, 04-04-2014, 05-30-2014, 06-27-2014,
07-25-2014, 08-29-2014, 10-19-2014, 10-24- 20 14, 11-212014, 12-19-2014, 01-16-2015, 02-13-2015, 03-09-2015,
03-30-2015, 04-27-2015, 05-29-2015, 06-29-2015, 08-032015, 08-31-2015, 10-05-2015, 01-18-2016, 02-15-2016,
03-14-2016, 04-11-2016, 05-13-2016, 06-10-2016, 07-1120 1 6 , 08-15-2016, 09 -1 2 - 2016 Kessler Rehab Notes
(AR 8 21 , 8 1 9 , 7 8 5 , 7 8 3 , 7 0 8 , 7 10 , 712 , 714 , 114 0 , 113 9 ,
1137, 1133 , 1131, 1129, 1704, 1702, 1700, 1698, 1696,
1694, 1692, 1690, 1945, 1947, 1949. 1951, 1953, 1955,
1957, 1959, 1961.): I gait and transfers described as
"mildly" to "moderately" antalgic; 01-15-2014, 01-172014, 01-20-2014, 01-24-2014, 01-29-2014, 03-04-2014
Kessler Rehab Notes (AR748, 742, 739, 734, 728, 725.):
abnormal gait pattern c h aracter ized as "arthroge nic:
moderate (lack of hip extension on right)."

•

LINA's own video surveillance is perhaps the
best evidence of Th oma 's abnormal gait
pattern. In addition to the trunk-forward
inclinati on of her gait (as reflected on the
still-frame images) , when she is shown
walking for any distance, her gait has a
distinct, choppy flop-footedness that
appears to be associated with slightly
everted feet and never fully extend ing her
knees. See, e .g., 06-30-2015 Surveillance,
Index 46:0 6 - 48:36. Two of LINA's
designated physician, Dr. Karen Garvey and
Dr. Howard Grattan, made similar findings.
(12-28-2014 Dr. Garvey IME Report, AR672 et
seq., at 678: "Review of surveillance video
showed that she walked with a normal to mild
antalgic gait"; 01-13-2017 Dr. Howard
Grattan Peer Consultant Report, AR1783 et
seq. at 1792: "She does have an antalgic
34

gait.") Abnormal gait is frequently present
in patients wi th Flatback syndrome/sagittal
imba l ance . (AR2215 et. seq ., V. Sarwahi , et
al ., "Characterization of Gait Function in
Patients with Postsurgical Sagitta l
( Fl atback) Deformity," 27 Spine 2328 - 37 ,
2002 : "Velocity, step length, and stride
length were all significantly decreased in
the subject group "; "Patients had greater
hip flexion" and , "[a]dditionally, the hip
was rotated externally "; "Increased peak
knee flexion ... and increased valgus [i.e.,
turn i ng outward] were present during
midstance") .
•

Thoracic Pseudarthrosis: 05-06 - 2015 Vessa Chart
Notation. AR1181 . Recent CAT scan of the thoraco l umbar
spine reveals a pseudarthrosis at T8-T9; 05-15 - 2015
Bridwe ll Chart Notation (AR1 541) ("I talked to her and
her husband qu i te a bit about the nonun i on at T8 - T9
[i.e., pseudarthrosis] and about the findings on the
CT scan and plain films" and "I went back and looked
over the note from 6/17 /13 ... , [w] e talked about the
nonunion in the mid thoracic spine then . . .. "); 06-30 2015 Vessa Operative Report (AR1625) (" Using AP
fluoroscopy ... we ... moved the camera up to the T9
region and identified the T9 pseudarthrosis, which was
more visible on the patient ' s l eft than on the
right ." ) .

•

Greater Trochanter/Hip Pain: 01 -1 5 - 2014 Kessler Rehab
Note (AR748.) Reporting that complaint of right hip
pain was treated with cortisone i njections in 08 - 2013
and 01-2014; 03 - 19-2015 SSA Vekhnis IME (AR2027 . ) : on
physical examination : tender greater trochanter
bi l aterally ; 03 - 25 - 2015 Vessa Chart Notation
(AR1182 . ) : Left trochanteric tenderness to direct
palpation , cortisone injection administered to left
trochanteric ; 04 - 22 - 2015, 04 - 24 - 20 1 5, 04 - 27 - 2015 , 04 29 - 2015 , 05 - 01 - 2015 , 05 - 04-2015 Excellent PT (AR 1 248 ,
1252 , 1255, 1261, 1258, 1263.) : "mod tender L lat hip
esp area of trochanter"; 08-24-2016 Vessa Chart
Notation (AR1931.) : Trochanter injection ; 09-27-2016
Vessa Physical Examination Report (AR 1 849-52 . ) : "Pain
right hi p area, " trochanteric tenderness over the
right greater trochanter an anterior capsule on the
right side , diagnosis of right trochanteric bursitis

35

with likely painfu l lumbosacral hardware , greate r
trochanter i njec t ion performed .
•

Degenerative Spine Changes: 03 - 20 - 20 1 5 SSA X- r ay
(AR1194 . ) : Lumbar : mi l d degenerative disc findings are
seen at a l l leve l s ; 02-29 - 2016 Cervical MRI (AR1924 25 . ) : left foraminal narrowing C4 - C5 , disk protr u sion
T2-T3 ; 03 - 07 - 16 Vessa Chart Nota t ion (AR1928.):
interpreting Xray and MRI : " The r e appears to be slight
spondylolisthesis of C4 and C5 wh i ch does not move
appreciably on flexionextension films . MRI scan does
reveal the slight listhesis of C4 and C5 with
resu l tant mild stenosis . There is also some foramina l
stenosis at that l eve l ."

•

Spinal Tenderness and Reduced Spinal Flexibility : 1 2 28 - 2014 Garvey I ME (AR672 et seq ., at 678.): physical
examination of back : mild tenderness and mild/minimal
spasm over cervical region bilaterally ; 03-19-2015 SSA
Vekhnis IME (AR2027) : on physica l exam of
thoracic/lumbar spine : mild tenderness along the spine
and cervica l sp i ne: range limited in all direction ;
04-24 - 2015 CT Thoracic Spine (AR1191) : T8 - T9 area " is
associated with marked degenerative disc disease "; 04 24-2015 CT Lumbar Spine (AR1192) : " There are
mu l tilevel degenerative disc disease" and disc space
narrowing "most severe at L5-Sl "; 04-22 - 2015 , 04 - 24 2015 , 04-27 - 2015 , 04-29 - 20 1 5, 05 - 01- 20 1 5 Excellent PT
(AR1249 , 1252 , 1255 , 126 1, 1259) : gross ROM cerv i cal :
severely limited ; lumbar : moderately limited; 09 - 272016 Vessa Phys i cal Examination Report (AR1849 - 52.):
ROM : Flexion , restricted ; Extension , restricted , right
lateral bend and left lateral bend , restricted;
extension/rotation restricted ; Tenderness: spinous
process positive bi l aterally . Lower Extremity/Lumbar
Musc l e Stiffness/Weakness7/Abnormalities: 01 -1 5 - 7
Normal "full strength " is rated 5 (out of 5) and
annotated "5/5 ." Anything less than that is considered
a decrease from full strength , wi th " 0 " representing
" no visible muscle contraction ." E. g. , G. Newman ,
M. D., Ph . D. , " How to Assess Musc l e Strength ," Merck
Manual (Feb . 2018) , 2014 Kessler Rehab Note (AR748.) :
physica l exami nation findings : Moderate restrictions
piriformis and rectus femoris f l exibility ; 03-19 - 2015
SSA Vekhnis IME (AR2027) : Lumbar spine muscle weakness
4/5; 03-25-2015 Vessa Chart Notat i on (AR1182):
Hyperreflexic in lower extremit i es ; 04-01 - 2015 Kessler

36

Rehab Note (AR1868) : Lower extremity muscle test in g
ranges bilaterally from 3 to 4/5; 04-22 - 2015 , 04 - 24 2015, 04 - 27 - 2015, 04-29-2015 , 05 - 01- 2 015 Excellent PT
(AR1248, 1252, 1255, 1261, 1258): muscle testing lower
extremity ranges bilaterally from - 4/5 to +4/5 ,
Piriformis , Hamstrings, and Rectus Femoris flexibility
all marked as moderate restrictions bilaterally , pain
with wincing at Erector spinae , gluteus maximum ,
gluteus medius , hip external rotators, multifid , and
piriformis , pain with withdrawa l at coccyx and sacrum
(left) , with wincing on right ; 09-27-2016 Vessa
Physical Examination Report (AR1849-52) : tenderness
and spasm at lumbosacral junction, sciatic notch
tenderness positive bilaterally.
•

Significant Pain Medication and Treatment: Th oma has
undergone multiple modes of pain treatment since 2013 ,
including physical therapy, lidocaine/cortisone
injections , and a daily cocktail of powerful pain
medications. The latter have included : Kl cream,
Valium 5 mg (lx day) , Hydrocodone 7 . 5/325 (up to 2
day) , Opana ER 10 mg every 12 hours, Lyrica 50 mg (3x
day) . ( See, e.g. , 11-21-2014 , 12-19-2014, 01-16 - 2015,
02 - 13-2015, 03-09-2015, 03-30 - 2015 , 04-27-2015 , 05-292015 , 06 - 29-2015 , 08 - 03 - 2015 , 08 - 31 - 2015 , 10 - 05-2015 ,
11 - 23-2015, 12-09-2015 , 01 - 18-2016, 02 - 15 - 2016, 03 -1 4 2016 , 04 - 11 - 2016, available at
https://www . merckmanuals.com/professional/neurologic disorders/neurologicexamination/how- to - assess - musclestrength. 05 -1 3- 2 016 , 06-10-2016 , 07-11-2016 , 0 8 -152016 Kessler Rehab Notes , AR1136 , 1132 , 1130, 1128,
1126 , 1124, 1122 , 1120 , 1118 , 1116, 1114, 1112, 1093 ,
1096 , 1944, 1946, 1948, 1950, 195 2 , 1954 , 1956 , 1958,
1960 , 09-12 - 2016 ; 03-19 - 2015 SSA Vekhnis IME, AR2026 ;
12-28-2014 Garvey IME , AR672 et seq ., at 676 ; 12 -1 62015 Berman IME , AR1060 et seq . at 1061 . ) In
approximately November 2015 , the muscle relaxant Amrix
was added to Thoma's medication regimen , and in
September 2016 , her Hydrocodone dose was increased to
10/325 (up to 2 day) . (Id . ) Injections documented in
the record include: 08 - 20 1 3 (hip) (AR748 . ) , 01 - 2014
(hip) (AR748.) , 03 - 2015 (hip) (AR1182 . ) , 06-2015
(Spine L4 - L5 , T8-T9) (AR1185-86.) , 07 - 2015 (Spine L4 L5) (AR1184.) , 09-2015 (Spine T8 -T 9) (AR1183.), 082016 (hip) (AR1931.) , 09-2016 (hip , Spine Sl/S2)
(AR1851 , 1932-33.).

37

55.

The persistence of posterior sagittal imbalance

to the degree exhibited by Thoma (5 cm) is implicated in the
pain she cont inu es to suffer . See AR975, "Flat Back and Sagittal
Plane Deformity" (noting that "[p]ositive sagittal balance is
the most reliable predictor of clinical symptoms in patients
with spinal deformity " and "[s]agittal imbalance greater than 4
cm results in deterioration of pain and function scores over
time in most unoperated patients"); AR1232, "Treatment of
Symptomatic Flatback After Spinal Fusion," (noting that, after
revision surgery, "47 per cent [of patients]
lean forward and .

. 36 per cent

cont inu ed to

. continued to have

moderate or severe back pain"). This pain is not necessarily
neurogenic in nature, but results from the added strain of
maintaining a compensatory posture. See AR975 , "Flat Back and
Sagittal Plane Deformity" ("Patients with flat back deformity
have pain in the lower part of their backs because of muscle
fatigue resulting from forward inclination of the trunk
secondary to loss of lumbar lordosis"); AR1221, "Mana gement of
Iatrogenic Flat-Back Syndrome ," (noting that "[b]ecause of the
strain of trying to achieve erect posture, pain and fatigue may
be noted in the cervical , thoracic, and lumbar spine") and,
because "[t]he lumbar spine is at a biomechanical disadvantage,
[t]his leads to fatigue as the day progresses"; AR2212, S.D.
Glassman, et al. , "Correlation of Radiographic Parameters and

38

Clinical Symptoms in Adult Scoliosis ," 30 Spine 682-88

(2005

("[S]agittal balance is the most important and reliable
radiographic predictor of clinical health status , as patients
with positive sagittal imbalance reported worse self-assessment
in pain, function, and self-image domains") ; id.
this "observation

(noting that

. is consistent with the experience of

Emami et al ., who demonstrated that patients with positive
sagittal imbalance after long fusions to the sacrum had
increased pain compared to patients with negative global
sagittal balance") ; AR2218 , "Characterization of Gait Function
in Patients with Postsurgical Sagittal (Flatback)

Deformity,"

("This posture puts extra demand on the back extensors , causing
fatigue pain .

., and can lead to anterior thigh and knee pain

[as well as] upper back and neck pain .

[resulting

from the] attempt to correct this abnormal posture by
hyperextending the unfused thoracic segments as well as the
cervical spine ." ) .

56 .

The existence of sagittal imbalance puts Thoma at

increased risk for pseudarthrosis (and , indeed, she has
exhibited an ongoing pseudarthrosis at the T8/T9 since 2013),
which constitutes a further source of pain. AR1232 , "Treatment
of Symptomatic Flatback After Spinal Fusion" ("The failure to
restore sagittal plane balance led to a higher rate of
39

pseudarthrosis , which was associated with recurrent deformity " ) ;
AR2 1 79 , "Rationale of Revision Lumbar Sp i ne Surgery "
of pseudarthrosis has been associated with .

(" The risk

. l onger fusions

(>12 vertebrae) , thoraco l umbar kyphosis >20 degrees ,
osteoarthritis of the hip joint , positive sagittal balance ~5
cm" ) ; AR2193 , "Current Concepts Review : Prevention and
Management of I atrogenic Fl atback Deformi ty , "

("T hese

biomechanical stresses and the risk of subsequent pseudarthrosis
may be increased with progressive loss of sagittal balance;
thus , pseudarthrosis may be both a causative factor and a
complication of flatback syndrome , especially when lordosis is
not restored with operative treatment. " )

47 .

Thoma ' s hip/trochanter pain may be related to

the degenerative changes in her lumbar spine or the long-term
effects of compensating for her flatback condit i on . See , e . g .,
AR1308, D. Hugo , et al. , "Greater Trochanteric Pain Syndrome , "
11 S.A . Orthopaedic J. 28-33, Autumn 2012

("Walker et al. found

a higher incidence of GTPS [Greater Trochanter i c Pain Syndrome]
in patients with degenerative spine disease " ) ; AR2223,
" Characterization of Gait Function in Patients with Postsurgical
Sagittal (F l atback) Deformity ," (" Back pain and thoracic
hypokyphosis are known problems associated with flatback , " but
"[ t]his study demonstrates that

. the hip and knee joints

40

are also affected adversely in patients with flatback")
Similarly, the presence of lumbar degenerative changes and the
ongoing effects of flatback compensation are implicated in the
persistence of this pain , despite treatment. See , e.g. , AR1316 ,
Brigham & Women ' s Hospital , "Standard of Care: Greater
Trochanteric Pain Syndrome ," 2007

("In the Walker study,

' the

major predictor of relapse of ... lateral hip pain patients who
received an injection of local anesthetic and glucocorticoids .
. was the presence of moderate to severe lumbar degenerative
disease seen on scintigraphic imaging.'").

58 .

Thoma has engaged in substantial pain - reduction

treatment efforts , including multiple surgeries , physical
therapy , steroid and analgesic injections , and an opioid-based
medication regimen . Thoma's pain medications would be expected
to limit her capacity for reliable focus, alertness , and
attention . See 12 - 28 - 2014 Garvey IME , AR672 et seq ., at 67

("Due

to the narcotic and mind altering medications I would limit her
from performing Safety Sensitive work duties"); 01-04-2017 Dr.
Vessa Letter , AR1759 - 60

("Nor is Thoma capable of sustaining the

rigors of any regular , ful l- time work as the excessive pain
medication that would be required to sustain such work would be
contra i ndicated , and make her highly undesirable for competitive
employment"); 01 - 09 - 2017 Dr . Valenza Letter, AR1761-62

41

("Any

increase in activity , such as would be required to engage in any
kind of routine employment , would cause increased pain

and

would need to be supported with additional pain medication
I do not believe such an endeavor would be successful , as this
would decrease Thoma's cogn i tive functioning

(impairing her work

performance and employability) , would make her a danger to
drive ... , and would risk further surgeries , radiation exposure ,
etc ." ).

59 .

Both of Thoma's principa l treating physicians ,

Dr . Vessa and Dr . Valenza, have consistently opined that Thoma
is disabled from any regular employment . See , e . g. , 03-05-2014
Dr . Vessa Letter, AR870 ; 05 - 20 - 2014 Physical Ability Assessment,
AR792 - 93; 10-12-2015 Dr . Vessa Letter and 0916 - 20 1 5 Physical
Abi li ty Assessment , AR1174-77 ; 05 - 13 - 2016 Dr . Vessa Letter,
AR1853-55 ; 09 - 27-2016 Vessa Phys i cal Examination Report , AR1849 52 ; 01-04-2017 Dr. Vessa Letter , AR1759-60 ; 04 - 11-2016 Dr .
Valenza Letter, AR1943 ; 01 - 09 - 20 1 7 Dr. Va l enza Letter , AR176162 .

60 .

At the time of her appea l, Thoma also submitted a

further supporting opinion from a third consulting physician,
Dr . Dante Implicito. See AR1972 - 73 [08-05-2016 Implicito
Physical Ab ilit y Assessment ].
42

61.

Dr. Vessa is board- certified in Orthopedic

Surgery, with a practice primarily concerned with spine surgery
(AR1523 - 31) , and at the time of his letters , he h ad treated
Thoma f or 10 years (AR1 1 74 , 1 852).

62 .
Medicine

&

Dr . Valenza is board- cert if ied in Ph ysical

Rehabi l itation and Pain Management

(AR1962-71) , and

at the time of his letters, he had treated Thoma for 6 years
(AR 19 4 3 , 2 7 0 , 8 21 - 2 2 ) .

63 .

Dr . Implicito is board-certified in Orthopedic

Surgery , specializing in spine surgery. AR1974 - 82 .

64 .

In October 2015 , Thoma provided a detailed

description of the symptoms that she exper i ences as a
consequence of h er spinal condition and f l atback deformity :

I have pain at every l evel of my spine: i n my
neck/sho ul ders , in the thoracic area between my shoulder
blades , and in my lower back/pelvis. Although this pain is
not constant in each area at a l l times , there is always
pa i n somewhere , and - except for the relief I experience
when I lay down - this pain is generally severe and
unrelenting .
The pa i n i n my neck is a sharp , stabbing pain at the
base of my head which both travels up (caus in g mi graine type headache pain) and into my shoulders ....
43

The pain in my thoracic area is a du ll, punching pain

I experience fairly constant , extreme muscle spasms in
my lower back/upper buttock area . This pain is hard to
describe , other than that the pain feels exactly like what
you ' d expect if you ' ve had nails drilled into your bone .
There is a constant, severe, dull pain , as well as the
sensation that my pelvis is made of brittle glass that is
about to shatter with any additional stress or strain . .. .
Although I am not pain free when I lay down , this
position affords the least stress on my vertebral column
and provides a significant reduction in the pain I
experience . ...
There are three major effects I experience from [my
f l atback syndrome]:
(1) the inability to provide micro-rel i ef to the
involved muscles puts great strain on the muscles ,
resulting in significant muscle spasms and tension ; (2)
over the course of a day , the maintenance of a fixed
position , and the build up of the associated spasming and
tension is extremely fatiguing , leav i ng me physically
exhausted; and (3) the ends of my fixed spine (my neck and
pelvis) are under extreme and unnatural levels of stress ,
making them particularly susceptible to bony pain and
muscular spasm/tension/pain . I have developed bursitis in
my hips. No chair is truly comfortable for me... . [W] i thin a
few minutes, because of my inability to shift position , I
begin to experience increasing pain. Whether sitting or
standing , I tend to pitch slightly forward to alleviate the
pressure on my spinal column , but , as noted , this puts
additional stress on my neck and pelvis , causing muscle
strain and spasm which eventually occurs throughout my
back . . ..
Standing is the worst activity for me. I immediately
feel the stress of my rigid spinal column on my lower back
and pelvis , producing severe and increasing lower back pain
(this is in contrast to sitting , where the pain tends to
affect my entire torso and is slightly less i ntense). As
with sitting, I tend to pitch forward when I stand .. . .

44

Cold weather and the changes in barometric pressure
associated with precipitation , seem to amp up the pa i n to
an even higher leve l of intensity.
AR1195 - 1208 [10-14-2015 C. Thoma Letter ].

65.

Thoma has consistently reported difficulties

with sitting for longer than 20 to 30 minutes , walking for
longer than 15 to 30 mi nutes , and standin g longer than 10 t o 20
minutes . See , e . g . , 01 - 15 - 2014 , 01 - 24 - 2014 , 01 - 29 - 2014 , 03 - 04 2014 , 04 - 22 - 2015 , 04 - 24 - 2015 , 04 - 27 - 2015 , 04 - 29 - 2015 , 05 - 01 2015 , 05 - 04 - 2015 Kessler Rehab Notes , AR745 , AR733 , AR727 ,
AR724 , AR1248 , AR1252 , AR1255 , AR1261 , AR1 258 , AR1263 . These
l imitat i ons have been rev i ewed and endorsed mult i p l e t i mes by
Dr . Vessa in his Physical Ability Assessments

("PAAs " ) . See 05 -

20-20 1 4 Vessa PAA , AR792-93 ; 09-16 - 2015 PAA , AR1176 - 77 .

66.

Thoma reports that her daily pain with these

activities is cumulative , and that increasing pain (and pain
medications) render her less functional as the day progresses :

Between 9 and 12 in the morning is my most produ ctive
t ime of the day. My medications have kicked in suffic i ent l y
enough that the morning " edge " is o f f , but not so
s i gnificantly that they have begun to dull my
attention/concentrat i on . Also , I tend to get more and more
fatigued as t h e day wears on ... .

45

I take my second hydrocodone between 12 and 1PM. I
usually lay down between 12PM and 3PM. This is not so much
"nap" time as it is time to rest my back ....
Between my pain, fatigue, and medication side effects ,
I do not feel safe as a driver by this time of the day
[after 4PM ]. By 5PM, my muscles are screaming with pain and
spasm. I usually take a Valium around this time (I avoid
taking it earlier in the day because I find it makes me
particularly fuzzy/stupid).

ARll0S- 1 208

(10-14-2015 C . Thoma Lett er] . Thoma experiences

these symptoms and limitations even though she is able to
organize her own schedule and lay down for several hours each
day.

Id.

67.

On appeal , Thoma provided additional detail

regarding her symptoms:

What prevents me from working is my inability to
engage in these sorts of activities on a sustained basis,
as would be required if I were to work 5 days a week, 8
hours per day. Both in terms of fatigue and pain, I am able
to maintain manageable levels by limiti ng my activities,
l ying down midday, sleeping 9 hours a night, and taking my
pain medications. Some activities are not impossible, but
when I do them, they will take a toll later on. I will need
to stop doing whatever else I hoped to do , I will need to
take more medication. I will pay for that activity.
Susta ined work that requires sitting, such as drafting
a document like this, requires me to do so in small bits
and pieces, with significant intervals in between. I must
pace myself, which means it is harder for me to meet tight
deadlines. When working at intervals, it is easy to become
repetitive and to lose track of where I was going.
Consequently, it takes more time overall to complete a
longerduration project, as I must constantly revisit what

46

I ' ve done at earlier intervals to make sure that what I ' ve
written is coherent and doesn't repeat itself. In the
preparation of this statement, I have also relied on the
assistance of my attorney to help organize and draft the
letter.
With an activity like sitting , I may be able to sit
for a longer period on a good day , or if I take significant
rest between sitting spells. However , if I attempted to sit
on a daily basis for the amount of time required to
maintain productive employment , my pain would increase and
my ability to sit would be more limited . In other words , I
have a finite capacity for sitting. If I am adequately
rested and have taken my medications , I may occasionally be
able to sit longer than usual . However , if I am being
required to sit on a sustained basis day in and day out, my
back will not be well rested and pain will develop faster
and with greater severity , so that my sitting intervals
wi l l be substantially reduced . I would require increased
pain medication . This is also exhausting. For most people ,
sitting seems effortless . For me , the rigor of maintaining
a posture that is comfortable and minimizes my pain takes
conscious attention and recruitment of muscles not
ordinarily relied upon by someone without my condition .
This is both mentally and physically draining .
AR1983-93 [11 - 07 - 2016 C. Thoma Letter].

68. Thoma further reported that the accumulation of
pain , fatigue , and pain medication side effects causes her
cognitive difficulties and leaves her with decreased emotional
resources. AR1201 [10 - 14 - 2015 C. Thoma Letter]

(""I have gotten

in the practice of writing everything down, or putting it on a
calendar, or list , because I have learned too many times that if
I do not do so , I wi l l be embarrassed to discover that I have
forgotten or missed something") ; id .

47

("The constant pain I ' m in

now leaves me with l imited reserves of pat i ence and self contro l." ) .

69.

Witness letters submitted - from Thoma ' s husba n d

(Richa rd Thoma), pastor (Rev. Rick Mor l ey) , and hairdresser
(Ricky Pennisi) - corroborate Thoma's repo rt s of pain , and
cogn iti ve difficu l ties :

•

10-2015 Ricky Pennisi Letter (AR1652): " Christ i ne took
immense pride in her work and was devas t ated by the
problems her multiple back surger i es caused h er . Since
her surgeries , she has no longer been able to get her
hair colored because she is unable to lean back into
the sink cha irs. She has also been forced to keep h er
hair cut appointments extremely short because of th e
discomfort she experiences, even with the help of a
pillow . I often have my assistants help me with her to
get her done quickly and painlessly ."

•

10-05-2015 Rev. Richard Morley Letter (AR1651): " When
Christine is able to come to church with her fami l y
she sits in the very back of the church so that she
can lean against the wa ll .... Because of her healt h,
her attendance is sporadic .... She has spoken to me on
multiple occasions about her pain and discomfort , and
the emotional and mental toll that such pain puts on
her . Christine has given me permission to be cand i d
here . She is filled with guilt about the burden her
limitations put on her family and friends . She
especially worries about her ability to fully parent
her two boys and what effect her need for constant
rest has o n them .... "

•

10-12-2015 Rich Thoma Letter (AR1653-55): " Dur i ng the
day Chris can us u ally stand for h alf hour intervals.
At this point she needs to lay down to ease the pain.
Si tting down does not make her feel better . She needs
to lay down flat in order to do so. I can usual l y tell
she is in pain because of the stiff motion of her body
48

when she walks . She also tends to be more hunched
over. She is usually more emotionally checked out and
more distant when she is in pain. Rain also makes It
worse for her condition . The wet weather will put her
in more pain due to the dampness that quickly affects
her back. In these conditions she is usually resting a
majority of the day. She does little cooking because
she has difficulty standing for long periods of time .
I do the Costco food shopping because she cannot lift
any heavy items in the store due to her pain. She
misses many events at our sons ' school. Recently she
missed back to school night because her back was
bothering her from the day. She was not able to get
enough rest in the day and she was too exhausted to
venture out that evening . By the time I get home from
work she needs to rest her back by lying down , and she
goes to bed by 8pm due to the fatigue. Another issue
she is having is forgetting things. One of my first
memories of being concerned is when I came home from
work one evening and she left the gas burner turned on
the stove. She used to be on top of all the kids
sports schedules . Most of this was done simply by
memory alone . Now she needs to write everything down
in order to keep track .... I find it hard to talk to
her sometimes because her mind is elsewhere . Her
facial expressions constantly show a woman in pain .
She is not all that vocal regarding it, but I can tell
this by the way her mouth grimaces when she moves
around. "

70 .

Cognitive impairments are documented in the

medical literature for patients with chronic back pain - whether
due to the pain itself, opioid pain medications , or some
combination of the two. See, e . g. , AR1322 et seq., at 1336, 0.
Moriarty , et al. , " The Effect of Pain on Cognitive Function: A
Review of Clinical and Preclinical Research ," 93 Progress in
Neurobiology 385-404, 2011 ("There appears to be sufficient
evidence from preclinical and clinical investigations to support
49

the theory that pain is associated with impaired cognitive
function"); AR1342 et seq., at 1349, M. Schiltenwolf, et al.,
"Prospective Study: Evidence of Specific Cognitive Deficits in
Patients with Chronic Low Back Pain under Long-Term Substitution
Treatment of Opioids," 17 Pain Physician 9-19, Jan./Feb. 2014
("Most importantly, the current study found that visual
attention, information processing, graphomotor speed, visual
scanning ability, and numeric sequencing ability are impaired in
both patient groups [i.e., patients with chronic low back pain
with or without long-term opioid therapy] in comparison to
healthy controls, and,

[a]dditionally, the executive function

regarding working memory and cognitive flexibility of patients
who underwent chronic opioid therapy was significantly hindered,
which means that the opioids group may perform normally in
simple tasks but performance could fall behind as the executive
domain become more complex"); AR1353 et seq., at 1361, S.
Tamburin, et al., "Cognition and Emotional Decision-Making in
Chronic Low Back Pain: an ERPs Study During Iowa Gambling Task,"
5 Frontiers in Psychology 1-11, Nov 2014

("In conclusion, we

documented that cLBP [chronic low back pain] patients show poor
performance in DM [decision-making], as assessed with MCST and
IGT" and "[t]hese abnormalities might contribute to the
impairment in the work and family settings that often cLBP
patients report").
50

71.

Both of Thoma's treating physicians found her

pain complaints to be entirely credible and consistent with her
medical history . Dr . Valenza, her pain management physician,
wrote :

With [ the equivalent of over 90 mq of morphine] she is
ab l e to perform h er activities of dai l y livi n g at home
and is able to take care of her home as well as her
children. I have adv i sed her against returning to
work . The amount of medication it wou l d require to
have her be ab l e to travel to New York to work at Fox
News as well as drive would definitely cause
impairment in her cognition. Therefore , I do not
believe that even increasing it to try to support that
f un ctional level would be successful . I also be li eve
that trying to increase the medications further to
support that level wou l d definite l y make her a danger
to drive , to not only herself b u t to the community . I
also do believe that the increased activ it y that would
require , risk her to further radiation and f u rther
surger i es. At this point I do not see her [as a ]
candidate to return to any form of work . I am going to
continue to try to support her activities of daily
li ving as we ll as her home act i vities to t h e best of
our ability wit h out increasing her medications or
doing procedures that put her and her family at
further risk .

AR1943 [04-11-2016 Dr. Valenza Letter Response t o Dr. Berman's
IME Report].

72 .

LI NA ' s first external medica l reviewer , Dr . Karen

Garvey, opined that "I do believe that Thoma may experience pain
in the cervical , thoracic , lumbar and hip regions" and that
51

"[d]ue to the narcotic and mind altering medications, I would
limit her from performing Safety Sensitive work duties. " AR67279 [12-28-2014 Dr . Garvey IME Report ] at AR679 .

73 .

Like Dr . Va l enza , treating physician Dr . Vessa

fully endorsed Thoma's disability :

The symptoms she has described are consistent with my
clinical observations and find in gs , wi t h her medica l
history, and with her objective test results .... I t
should also be noted t h at Thoma's abili ty to engage in
modest activities of daily living, interspersed with
periods of rest, is achieved through an extraordinary
regimen of pain medication , including Opana , Lyrica ,
Vicod i n (Acetominophen/Hydrocodone) , and Valium . This
is heavy duty pain management, and could not be
tolerated by a patient who was new to such treatment .
Good pain management is a de li ca t e ba l ance between
facilitating activities of daily living (with
tolerable amounts of pain) , whil e avoiding the
comp l ete fog of over-medication .... I reiterate the
opin i on I previously gave to CIGNA . Thoma can engage
in isolated short - duration activities of daily liv i ng ,
but could not return to her prior occupation , nor to
any reasonably comparable occupation , with s imil ar
demands and responsibil i ties. Moreover , I believe
Thoma is incapable of s u stain ing the rigors of any
regular , full-time work and , as noted , t he excessive
pain medication that would be requi red t o sustain s u ch
work would be contraindicated , and make her high l y
undesirable for competitive emp l oyment .. . . I have
treated and observed Thoma as a patient f or ten years .
The symptoms she has described are consistent with my
clinica l observations and find ing s , with her medical
history , and with her objective test results .... I
find Thoma to be a very straightforward person , and
not someone who exaggerates .

52

AR1853 - 55 [05-13-2016 Dr. Vessa Letter]. Dr. Vessa also noted:
"Even at her present level of medication , I would not hire her
for a position in my office (and I think other employers would
have similar reservations, particularly for any job with
significant responsibilities)."

74.

On appea l, Dr. Vessa submitted an updated

examination and opinion in which he emphatically repeated his
opinion :

I have cared for and participated in the surgery of
numerous patients with flat back syndrome and in my
experience , and as reflected in the medical
literature , pain at the severity Mrs . Thoma describes
is quite common in patients with flat back syndrome
and the extensive spine surgery that she has
undergone .... [I]t is my opinion that her condition is
permanent.... [H ] er vocational abilities are
compromised .... She is unable to continue her chosen
career.

AR1849 - 52 [09 - 27 - 2016 Dr . Vessa Letter] at AR1852 .

75 .

On appeal , Thoma submitted a vocational

evaluation from Alberigi . In addition to his listed
accreditations - Certified Rehabilitation Counselor, Licensed
Professional Counselor , Licensed Social Worker, Certified
Disability Management Specialist , and Associate of the Board of

53

Vocational Experts - Alberigi has 35 years of experience
providing vocational and rehabilitation counseling and has
served as a Vocational Expert for the SSA and Vocational Case
Consultant for the U.S. Department of Labor ("DOL") . AR2080.

76 .

Alberigi ' s review included: Thoma's statements,

Fox News's Job Description, physician opinions (from Ors. Vessa,
Implicito , Garvey, and Berman), SSA records, and LINA's prior
Transferable Skills Analysis

("TSA") and Exploratory

Transferable Skills Analysis

("ETSA") . AR2054-55 . Alberigi also

conducted an employability interview with Thoma. AR2056-58.

77 .

Reviewing the LINA TSA prepared in relation to

the termination of Thoma's claim, Alberigi identified several
flaws:

a.

Thoma's specific education , training and

experience renders her unqualified for the Advertising and
Promotions Manager position identified as an "alternate"
occupation by that TSA. AR2075 .
b.

The TSA was based exclusively on the opinion of

Dr. Berman , without regard for the substantial countervailing
evidence. AR2071, 2073.

54

c.

The TSA failed to take account of Thoma ' s

re l iance on opioid pain medications. AR2073 , 2075 .

d.

The TSA improperly l umped broad wage data

information together, even though that data included wages for
high - earning industries in which Thoma has no experience ,
education or training. AR2075 - 78.

78 .

Ultimately , Alberigi concluded that Thoma was

disabled under the LTD Plan ' s definition of disability:

The vast preponderance of information made available
leads me to conclude that Thoma is not capable of
performing her prior occupation with Fox News as a Senior
TV Producer , nor is she capable of performing the alternate
occupation of Executive Producer , Promos/Advertising and
Promotions Managers identified in CI GNA ' s 2016 TSA . In
light of her physician documented restrictions as
summarized in this report , as we l l as the Residua l
Functional Capacity determined by SSA and the results of
the SSA Consultative Exami nations , as well as the results
of my Employability Interview , i t is my concl u sion that
Thoma is incapable of regular , full -time employment in any
occupation for which she is or mi ght reasonably become
qualified based upon her education , training or experience .
This is so even without cons i deration of the LTD Plan ' s
wage requirement of 60 % or more of her Indexed Earnings .
Based on the preponderance of the information I reviewed ,
including SSA ' s determination that Thoma is incapable of
substantial ga i nful activity , it is also my opinion that
Thoma is incapab l e of mainta i n i ng regular , full-time
employment that wou l d satisfy the wage requ irement .

55

AR2054 - 79 [09-20-2016 Alberigi Vocational Eva luation Report] at
2078 .

79.

LINA ' s termination was based exclusively on the

IME Report of Dr . Berman , a vocational assessment TSA , and
LINA ' s surveillance. AR386-89 [0 5 -13-2016 LINA Terminati on
Letter] .

80 .

On physical examination , Dr . Berman found a

litany of normal findings , including no tenderness, no spasm , no
weakness , and no pain to palpation throughout Thoma ' s cervica l
and thoracolumbar spine and hips . AR1062. Neither on personal
examination nor in the video surveillance did Dr. Berman see any
evidence of abnormal gait. AR1061-62 , AR1064.

8 1.

Dr . Berman itemi zed the medical records he

reviewed, but otherwise did not discuss , synthesize or weigh
those records , other than to say that the "Radi o l ogical studies
brought to the eva luation by the claimant were reviewed by me in
great detail , and demonstrated findings expected and consisten t
with the claimant ' s surgical history, and did not demonstrate
findings cons istent with functional limitations or disability ."
AR1065 . Although he did not personally review the surveillance
as part of his initial report , LINA requested that he do so and
56

provide an addendum , but his opinion remained the same. AR88
[ACCLAIM Note]

("Attorney provided request for clarification

regarding info reviewed in IME and SIU was received. Addendum
request sent to Dr . Berman . Amended report received 3/9/2016 and
Dr. Berman opined additional info did not change prior
opinion . ")

82 .

Dr. Berman did discuss the physical examination

findings noted by other physicians and d i d not explain why he
rejected Thoma ' s subjective complaints of pain , the opinions of
Thoma ' s treating physicians , or the substantial medical
literature corroborating the presence of debilitating pain in
f l atback patients . Id .

83 .

Dr. Berman did not explain why the evidence of

Thoma ' s condition - such as
postural abnormalities ,
pseudarthros i s ,

(1) sagittal imbalance and other

( 2) abnormal gait ,

( 3) thoracic

( 4) greater trochanter /hip pain ,

degenerative changes of the spine ,
reduced spinal flexibi l ity ,

(7)

( 5)

(6) spinal tenderness and

lower extremity/lumbar muscle

stiffness/weakness/abnormalities , and (8) significant pain
medication and treatment - failed to corroborate and support
Thoma ' s complaints of pain . Id .

57

84. Ultimately, Dr. Berman concluded that Thoma has no
functional deficits whatsoever, and was able to return her
former occupation , "full time full active duty." Id.

85 .

Had LINA not rushed to terminate Thoma's cla im,

it would have received Dr. Vessa's assessment of Dr. Berman's
IME Report, which was later submitted as part of Thoma's appeal:

I disagree with Dr. Berman's conclusions and, indeed,
some of his physical findings seem d iffi cul t to
believe, given Thoma's medical history and my longterm care of this patient. In particular, Dr. Berman
purported to examine Thoma's cervical and
thoracolumbar spine and to find absolutely no pain,
tenderness, spasm or atrophy throughout. On repeated
examination of Thoma, I have observed tenderness and
spasm of her cervical and thoracolumbar spine , and
have regularly observed it in the thoracolumbar
region. Moreover, she has definite paraspinal muscle
atrophy over the region of (and associated with) her
massive surgical scarring . Given Thoma's flatback
syndrome and extensive spine surgery his tory , it would
be surprising if she exhib it ed no physical examination
findings of pain, tenderness, spasm and atrophy.
Flexible open spinal leve ls must adapt to the static
fused spinal levels, resulting in tenderness and spasm
from compensatory and unnatural overuse . Indeed , such
findings are so routine in a patient like Thoma that I
do not generally include them in my office notes,
where they would be redundant. Dr. Berman's failure to
find pain, tenderness , spasm or atrophy anywhere
throughout Thoma's cervical and thoracolumbar spine,
is unbelievable, and causes me to question the
credibility of his findings and conclusions.
See AR1854

[05-13-2016 Dr. Vessa Letter].

58

86.

Neither Dr. Berman nor LINA made any effort to

reconcile Dr. Berman's conclusion that Thoma had full work
capacity for her own occupation with LINA's prior payment for
two years of "own occupation" benefits based on multiple LINA
medical assessments.

Id.; AR386-89

[05-13-2016 LINA Termination

Letter].

87 .

The TSA performed in conj uncti on with the

termination of Thoma's claim was based entirely on one medical
opinion - Dr. Berman's. AR1056-57

88 .

[01-25-2016 TSA].

Based on Dr. Berman's findings, TSA concluded

that Thoma was capable of performing h er former occupat i o n of
"producer ." Id.

89 .

Neither LINA (in its denial l etter or int er nal

deliberations) nor th e TSA eva lua tor exp lained the apparent
discrepancy between this determination and LINA's own prior
determinations that Thoma was disabled from her own occupation,
or SSA's determination that Thoma was incapable of "any
substantial gainful activity." AR1056-57

[01-25-2016 TSA];

AR386-89 [05-1 3-20 16 LINA Termination Letter].

59

90 .

Although LINA conducted three total rounds of

surveillance (a total of 11 days)

in June 2014 , October 2014 ,

and June/July 2015 , LI NA relied solely on three activities in
the 20 15 surveillance, one occasion of Thoma sitting for "over
thirty minutes ," one occasion o f her "carrying a red bag and
folding chair over her shoulder," and one occasion of Th oma
"standing for over forty-nine minutes in a sports field " in
making its termination decision. AR386 - 89 [05-13-2016 LINA
Termination Letter], at AR387. LINA made no reference to the
prior surveillance, and LINA continued to pay Thoma LTD benefits
throughout that period and continued to acknowledge she was
disabled and entitled to benefits . Id .

91.

Treating orthopedic surgeon, Dr . Vessa , viewed

the surveillance and explained why it did not surprise him or
change his opinion o f Thoma ' s disability:

The surveillance film from June/July , 2015 is not
substantially different from the surveillance film I
previously reviewed . The new surveillance again shows
Thoma engaged only in moderate activities of daily
living. None of the activities documented are extreme .
She does not run or kick a ball with her children. She
walks , stands , sits , and carries l ow weight items. She
engages in these activities for short durations of
time, generally not more than 10 minutes , and , on
occasion for only modestly longer durations - perhaps
45 minutes or so . In walking activities , Thoma
demonstrates a slow , distinct gait , slightly leaning
forward , with stiffness in the hips , that is

60

characteristic of flat-back syndrome, although on many
occasions, Thoma is partially obscured, so that it is
difficult to see her for the entire duration. On most
of the days, Thoma engages in activities outside the
h ome that last several hours, at most, and then she
returns to her home and is inactive the rest of the
day. She carries a handbag. She drives a car for short
distances, or sits on her porch while chatting on the
telephone or looking at a small tablet. She lifts and
carries a lightweight aluminum f olding chair (over her
shoulder) for the short distance from a local pool to
her car, in a dedicated parking area for the pool.
There are long periods of time between the filmed
activities, when she is apparently resting.
I have treated and observed Thoma as a patient for ten
years . The symptoms she has described are consistent
with my clinical observations and findings, with her
medical history, and with her ob jective test results.
The activities documented on surveillance are
consistent with those she has reported to me and it is
my opinion that they do not in any way contradict the
restrictions and limitati ons I have previously
provided, nor do they contradict Thoma's reported pain
or disability.
AR1854

[05-1 3 -201 6 Dr. Vessa Letter]. See also AR1174-75 [10-12-

2015 Dr. Vessa Letter]

92 .

(addressing ear li er surveillance.)

Responding to the significance Dr. Berman

attributed to the surveillance activities, Dr. Valenza also
explained why those activities did not surprise him or change
his opinion of Thoma's disability. AR1943 [04-11-2016 Dr.
Valenza Letter].

93 .

Thoma explained that the surveillance did not

contradict what she had r eported to LINA as her activities, nor
61

do they contradict her disability. AR1989 - 92 [11 - 07 - 2016 C.
Thoma Letter].

94 .

At the appeal stage , LINA retained Dr . Howard

Grattan to conduct a paper review of Thoma's claim . AR1783-90
[01-13-2017 Dr. Grattan Peer Consultant Report].

95.

It appears that the documentation reviewed by Dr.

Grattan included Alberigi 's vocational evaluation report and the
SSD claim file information, amid a plethora of medical and other
documentation . AR1783-1790 , at 1788.

96.

Dr. Grattan provided a 4- sentence summary

synopsis of Alberigi's report, but no actual assessment of the
report . AR1797-98.

97.

Although Dr. Berman ' s report is listed as an item

Dr. Grattan reviewed (AR1784), the report is not further
discussed other than to note that Thoma's providers disagreed
with his assessment . AR1797

98 .

Dr . Grattan lists and describes the surveillance,

but he nowhere makes any findings or draws any conclusions from
this evidence . AR1785 , AR1787, AR1794 , AR1795 .
62

99.

Dr. Grattan's report contains no discussion of

the SSA claim file's vocational reasoning and rationale , as set
forth in the SSA Disability Determination Explanation.

Id .

100. The first nine pages of Dr . Grattan ' s report are
little more than a list of the evidence he examined. AR1783 - 91 .
The last 7 - page "Clinical Summary" (AR1793-99) is a descriptive
summary of the evidence (without any evaluative commentary or
assessment) , and the gist of his opinion is contained in the 2 page Recommendations/Rationale (AR1792 - 93) .

101.

The Recommendation/Rationale includes several

additional descriptive summaries of selected medical evidence
but does not exp lain why these were selected from the remainder
of the evidence or how they are logically related to his
opinion. Id .

102 . Dr . Grattan concedes that Th oma (i) is limited ,
(ii) has an "e xtens i ve surgical" history ,

(iii) has "alteration

of spinal kinesiology ," and (iv) that "medically necessary work
and activity restrictions are required." AR1792 .

63

103 . Dr . Grattan rejected Thoma ' s described severity
of pain and instead focused on an assessment of what the
"objective" evidence suggested about her physical functional
ability . He concedes that Thoma ' s " reports of pain are
appreciated and are explained by her history of extensive
surgery , " and rejects those complaints because "the objective
f i ndings do not explain why the claimant would not have the
ability to function within the restrictions outlined below"
AR1791-92 [01 - 13 - 2017 Dr . Grattan Peer Consultant Report] . This
is similar to a finding made by Dr. Garvey , an earlier LINA
medica l consultant . AR679 ("[A]lthough I do believe that Thoma
may experience pain in the cervical , thoracic , lumbar and hip
regions , the subjective complaints of limitations outweigh the
objective findings and observations ." ) .

104 . Dr . Grattan summarized the findings and opinions
of Dr. Vessa and Dr. Valenza , but did not provide a critical
assessment of their opinions or why he disagrees with them.
After receiving responses to his questions , he dismissed these
responses, stating that they "[did] not change my opinion as the
providers are describing pain reports without ongoing
neurological deficits. " AR1791. Dr. Grattan has not described
the specific neurological deficits that would satisfy him, nor

64

has he explained why the various objective abnormal findings
documented in Thoma's medical record are insufficient.

105. Dr . Grattan supplies very specific restrictions
and limitations, AR1793 , but does not explain why these
particular restrictions are supported by the "objectiveu
evidence, while the restrictions supplied by or: Vessa, Dr.
Valenza , and Dr. Implicito are not.

106. Dr. Grattan's restrictions and limitations are:

From a physical medicine and rehabilitation and pain
perspective , the claimant is functionally impaired,
but not restricted from all work activity. Medically
necessary work activity restrictions include lifting ,
carrying, pushing and pulling 10 pounds occasionally
and less than 10 pounds frequently. No climbing
ladders , poles or working at unprotected heights . No
operating heavy machinery. No crawling or balancing .
Occasionally kneeling, squatting , crouching, and
climbing stairs . Reaching overhead and below the waist
occasionally; reaching at waist level is without
restrictions. Fingering, handling , feeling, gripping
and grasping may be done constantly. Walking and
standing combined for 10 minutes continually and up to
two hours per day. Sitting is restricted to 60 minutes
continually , up to six hours per eight hour day .
AR1793.

107. None of LINA's examining or paper review
physicians have alleged that the evidence suggested that Thoma
65

was malingering , exaggerating or otherwise dissembling her
condition or pain . AR1783-90 [01-13 - 2017 Dr . Grattan Peer
Consultant Report] ; AR1060 - 65 [12 - 16 - 2015 Berman IME Report] ;
AR672 - 79 [12 - 28 - 2014 Dr . Garvey IME Report] .

108. Dr . Grattan opined that " [o ] bjectively , there is
no evidence of motor weakness." AR1792 . However , he does not
identify the record on which that determination is based .

109 . Dr. Grattan opined that "there was n o evidence of
adverse [opioid pain medicat i on ] side effects nor is there
evidence that suggests the claimant is cognitively impa i red ,"
AR1973, but did not address Dr. Vessa ' s and Dr . Valenza ' s
statements that her medication would need to be increased so as
to allow her to perform the duties of a sedentary occupation .

110 . LINA provided its vocational consultant with Dr .
Grattan ' s report . AR67

[Appeals TSA" Request]

("Please complete

Appeals TSA based on R/Ls obtained from PR Report completed by
Dr. Howard L. Grattan .. . . ") ; AR1778 - 80 [01-20 - 2017 Transferable
Skills Analysis]

(" Occupations were identified based on the Peer

Review by Dr . Grattan dated 1/13/17 " ).

66

111. The TSA on appeal was conducted by Melissa
Mendez , a vocational rehabilitation consu l tant who was involved
in the TSA obtained at the time Thoma ' s claim was terminated.
AR1055 , AR1058 , AR1778 - 79 .

112. LINA provided Ms . Mendez with neither the
Al berigi Report , nor the SSA Disability Determination
Explanation , which included its own vocational assessment .
AR2080-151 ; AR2034-49 ; AR2047-49 .

113 . The TSA purported to find alternate occupations
Thoma was able to perform and that satisfied the Plan ' s wage
requirement . AR1778 - 80 . In its letter dated January 27 , 2017 ,
LINA upheld its termination of Thoma ' s LTD Plan benefits based
on these two opinions . AR371 et seq .

114 . With regard to SSA ' s claim file , the LINA appeal
denial letter explained that " [t ] he claim file has been reviewed
in its entirety , as a whole " but that "[t]he criteria used by
the SSA may d i ffer from the requirements of the policy under
which your c l ient is covered. " AR373 .

115 . Although Thoma contended that

(i ) SSA ' s criteria

do differ and , indeed , are more stringent , and (ii) no special

67

rules were applied in her case , LINA did n ot state specifically
how the criteria differed, or how that difference was relevant
to LINA's determination that the SSA information be given no
weight . Id.

116. LINA 's ACCLAIM Notes state : "SS award is relevant
and was given cons iderat i on in my consideration .
Information fr om SSA was reviewed by Board Certified Physicians
in PMR . Claim file reviewed in its entirety , as a whole.
Proceeding with c laim decision ." AR63 . LINA ' s internal policies
and procedures provide that a claim examiner should:

•

•

Document the specific information or circumstances
supporting the determination that the award is of
less er or no relevance in the c laim file;
Clearly explain to the c laimant in writing the
basis(es) for the determination that the award is of
lesser or no relevance . That explanation should
include the specific information, circumstances and/or
policy language relevant to the determination and its
relation to the Disability liability decision .

AR2312 .

IV. Conclusions of Law

1. The LTD Plan is an ERISA plan and is subject to ERISA law
and regulations. ERISA §§ 3(1) , 3(3) , 4(a), 502(a) (1) (B)

68

and (a) (3) , 29 U.S . C . §§ 1002 (1) and (3) , 29 U. S . C . §
1003 (a ) , 29 U.S . C . §§ 1132 (a) (1) (B) and (a) (3).

2. The Benefits Determination is Subject to De Novo Review.

In an action brought by a plan beneficiary to recover
plan benefits under

§

1132 (a) (1 ) (B), "a denial of benefits .

is to be reviewed under a de nova standard unless the benefit
plan gives the administrator

discretionary authority to

determine eligibility for benefits or to construe the terms of
the plan. " Firestone Tire

&

Rubber Co . v . Bruch , 489 U.S. 101,

115 (1989). Language that confers discretionary authority must
be clear , as "[a]mbiguities are construed in favor of the plan
beneficiary." Krauss v . Ox ford Health Plans, Inc.,
622

517 F . 3d 614 ,

(2d Cir. 2008). Discretionary language in non - Plan auxiliary

documents , such as summary plan descriptions

("SPDs") , is

ineffectual . See, e.g ., CIGNA Corp. v . Amara , 563 U.S.

421 , 438

(2011) ; Durham v . Prudential Ins. Co . of Am ., 890 F.Supp . 2d 390 ,
395-96 (S . D.N . Y. 2012) .

Here, the Group Policy contains no discretionary
authority and it contains an integration clause : "[t]he entire
contract will be made up of the Policy , the application of the
Employer , a copy of which is attached to the Policy , and the
applications , if any , of the Insureds ." AR40.

69

The document t hat Defendants advance as conferring
discretion is the Appointment of Cl aim Fiduciary ("ACF" ) . ARl.
However , this argument fails . The AC F was never disc l osed before
the commencement of this action , is not an amendment , and was
not endorsed on or attached to the Group Policy . Id . Neither
LINA nor Fox News provided the ACF as part of the Group Policy ,
and while the ACF "authorized the i ssuance of appropriate
amendments , " no such amendment was ever proffered . Id .

In Barbu v . Life Ins . Co . of N . Am ., an identical LINA
ACF was deemed insufficient to confer discretionary authority.
987 F . Supp . 2d 281 , 286-289 (E . D.N . Y. 2013)

(citations omitted) .

There , the court noted that the ACF could not be enforceab l e as
an amendment to the Policy , because the "t h e amendment provision
require[d] any amendment to be ' endorsed on , or attached to , the
Policy ,'" but the plaintiff had not received the ACF until
discovery and the defendant made no attempt to show that the ACF
otherwise complied with the amendment provision. Id. at 288 n . 4.
(citations omitted) . For these same reasons , the ACF here is not
part of the Plan and the proper standard of review as to the
benefits determination is de novo .

70

Even if the Policy did confer discretionary authority ,
de nova review would still be appropriate because Defendants
have failed to demonstrate that they complied with ERISA's
procedural regulations. See Halo v . Yale Health Plan , 819 F. 3d
42 , 57 - 58

(2d Cir . 2016)

(" [A] plan ' s failure to establish or

follow the claims -p rocedure regulation entitles the claimant to
have his or h er claim reviewed de nova in federa l court ." ) ;
Schuman v. Aetna Life Ins . Co ., 2017 WL 1053853 , at *12
(S . D. N. Y. Mar . 20, 2017)

(applying de nova rev i ew instead of

arbitrary and capricious review because defendants failed to
establish that they substantially complied with ERISA's claimsprocedure regulation) .

In this case , LINA violated ERISA ' s procedural
regulations i n two ways. First, LINA violated the ERISA
regulations by withholding the Alberigi vocational evaluation
report from its vocational consultant and failing to consider
that report on review, and also by withholding from its
vocational consultant the SSA Disab i lity Determination (which
included its own vocational assessment) . AR2080 -1 51 ; AR2034-49 ;
AR2047 - 49 . These actions violated the ERISA provision requir in g
LINA to provide a " review that takes into account all comments,
documents , records , and other information submi tted by the
claimant ." 29 C . F . R.

§

2560 . 503 -l (h) (2) (iv)
71

(applied to

disabi li ty claims via 29 C .F. R. §2560 . 503 -l (h) (4)) . See, e.g .,
Aitken v . Aetna Life Ins . Co ., 2018 WL 4608217 , at *38 - 43
(S.D . N. Y. Sept . 25 , 2018)

(de nova review proper where defendant

did not demonstrate that it t ook vocatio nal eva lua tion into
account in its decisionmaking process , nor that its failure to
do so was inadvertent and harmless); Schuman v. Aetna Life Ins .
Co ., 2017 WL 1053853 , at *16 (D. Conn . Mar . 20 , 2017)

(defendant

violated ERISA by relying on medical consultant ' s assessment of
claimant ' s vocational report) .

LINA also violated ERISA's procedural regulations when
it failed - despite requests from Thoma - to produce (i)

SIU

Claim Referral forms or (ii) applicable internal policies . ACW
Deel .

~

19 & Ex . 3 . ERISA requires that there be a procedure to

make "relevant documents " available to the claimant on appeal .
29 C . F . R. §§ 2560 . 503-l(h) (2) (iii) . ERISA defines " relevant
documents" as including any document that "[d]emonstrates
compliance with the administrative process and safeguards
required pursuant to paragraph (b) (5) ," which in turn requires
that the claims procedures ensure that plan provisions are
applied in a consistent manner , as well as any document that
" constitutes a statement of policy or guidance with respect to
the plan concerning the denied treatment option or benefit for

72

the claimant ' s diagnosis." 29 C.F . R .

§

2560 . 503-l(m) (8) (iii) ,

(iv).

It appears that LINA concedes that the SIU Claim
Referral forms and the SIU/Surveillance Instruction form are
part of the record . ACW Deel . 1 19(b). The internal guidelines
at issue here are relevant to a consideration of whether the
claims procedure was applied consistently . See Schuman v . Aetna
Life Ins. Co ., 2017 WL 1053853, at *16 (D . Conn. Mar . 20 , 2017);
Kruk v . MetLife Ins . Co. , 267 F.R.D. 435 , 437-38

(D. Conn . May

27 , 2010) ; Glista v. Unum Life Ins. Co . of Am ., 378 F.3d 113,
124 (1st Cir . 2004) . These policies and procedures were
specifically requested in counsel ' s request for the
administrative record, but were provided to Thoma for the first
time as part of discovery in this case . See ACW Deel . 1 19(b) ,
Ex. 3 .

In light of the above, Thoma ' s benefits determination
is subject to a de nova standard of review.

3. Thoma is entitled to LTD benefits from May 13, 2016 to the
present.

73

ERISA provides that a "civil action may be brought .
. by a participant or beneficiary .

. to recover benefits due

to him under the terms of the p l an , to en f o r ce his rights under
the terms of the plan , or to clarify his f u ture benefits under
the terms of the plan ." Decesare v . Aetna Life Ins.
F.Supp . 3d 458 , 479 - 80

(S . D. N. Y. 2015)

Co ., 95

(citing 29 U. S.C .

§

1132 (a) (1) (B)) .

" [U]pon de novo review , a district court may render a
determination on a claim without deferring to an administrator ' s
eva l uat i on of the ev i dence ." Locher v . Unum Life Ins . Co . of

Am. , 389 F. 3d 288 , 296 (2d Cir . 2004) . Under this standard , the
claimant mu st prove by a preponderance of the evidence that she
is disabled within the meaning of the p l an . See , e . g ., Paese v .

Hartford Life

&

Accident Ins . Co ., 449 F . 3d 435 , 441

(2d Cir .

2006) ; Mario v . P & C Food Mkts ., Inc ., 3 1 3 F . 3d 758 , 765

(2d

Cir . 2002) . Here , that means Thoma must show that she i s " unable
to perfo r m the materia l duties of any occu pation for which .
she is , or may reasonably become , qualif i ed based on education ,
training or experience " and " unable to ea r n 60 % or more of .
her I ndexed Ear n ings. " AR20 .

LINA terminated Thoma ' s claim based on Dr . Berman ' s
IME report , the TSA (wh i ch considered Dr . Berman ' s opin i on to

74

the exclusion of all other medical evidence in LINA ' s
possession) , and the 2015 surveillance. AR386 - 89 ; ACW Deel . Ex.
3 . However, the evidence provided by these materials does not
outweigh the evidence supporting Thoma ' s claim.

Dr. Berman , in making his determination that Thoma was
fully abl e to return to her former occupation , did not explain
why he rejected Thoma ' s complaints , the opinions of her treating
physicians , or the medical literature corroborating her
experience . AR1065 ; AR88 . Moreover , there was no attempt to
reconcile Dr . Berman ' s conclusions with LINA's prior benefit
payments to Thoma (which were based on several medical
assessments made by LINA) or SSA ' s determination that Thoma was
incapable of " any substantial gainful activity ." AR1854 ; AR386 89 , AR1056-57 ; AR386 - 89 .

Additionally , although LINA ' s surveil l ance in 201 5
revealed that Thoma sat for over 30 minutes , carried a bag and
folding chair over her shoulder , and stood for over 49 minutes
in a sports field , Dr . Vessa and Dr . Valenza- - two of Thoma ' s
treating physicians--found that these activities are not
inconsistent with Thoma's reported disabi l ity. AR386-89 , AR1854 ,
AR1174 - 75 , AR1943. Dr . Vessa also noted that there are "long

75

periods of time between the filmed activities , when [Thoma] is
apparently resting." AR1854 .

On appeal , LINA enlisted the assistance of Dr. Grattan
to co ndu ct a paper review of Thoma's claim . AR1783-1798 . Dr.
Grattan found that Thoma could function within a set of specific
restrictions , but offered little by way of substantive analysis,
particularly any discussion as to why his opinion differed fr om
the opinion of other evaluators who had previously assessed
Thoma ' s condition and ability to return to work . Id . Also as
part of the appeal, LINA ' s vocational consultant determined that
Thoma was able to perform alternate occupations that satisfied
the Plan ' s wage requirement. AR1778-80.

While LINA provided its

vocational consultant with Dr. Grattan's report , i t did not
provide her with Alberigi's report or the SSA Disability
Determination Explanation . AR2080-151; AR2034-49; AR2047 - 49 .

At the same time, there is ample evidence in the
record that Thoma is entitled to LTD benefits under the Plan .

Thoma has suffered from scoliosis-related health
problems for the majority of her life, having had her first
correct i onal surgery at 14 years old and several more after
that. AR727 , AR922, AR1248, AR17 61 , AR1853, AR1983 , AR1540,

76

AR1759, AR1853 , AR1983 , AR2026. The abnormalities resulting from
her condition and surgical history have been documented on
multiple occasions by various evaluators. As a result of the
pain she experiences , Thoma has engaged in pain - reduction
treatment efforts that may reasonably be expected to limit her
ability to focus, and remain alert or attentive . AR672 et seq. ;
AR1761 - 62 ; AR1105 - 1208; AR1983 - 93; AR1201. Medical literature
details the impairments associated Thoma ' s first surgery ,
particularly the risk of developing flatback syndrome , and
corroborates Thoma ' s complaints more generally. See , e . g .,
AR2165 , AR590 , AR1322 et seq. , AR1342 , AR1353 . Witness
statements support the characterization of Thoma as someone who
loved her work but is severely restricted in her actions as a
result of her condition . AR1652 , AR1651 , AR 1653 - 55 . There has
been no allegation from any of Thoma ' s numerous examining or
paper review physicians that she was exaggerating her pain .
AR1853 - 55 ; AR1783-90 ; AR1060-65 ; AR672 - 79.

LINA approved Thoma for disability benefits , after its
own medical examinations, several times . AR304 - 32 ; AR21 ; AR51 ;
AR275 - 770; AR249-51 ; AR672-79 ; AR209-10 ; AR200 - 01 ; AR194 . Th e
findings in those examinations echo Thoma ' s present and past
complaints, for example , that she has difficulty sitting for
extended periods of time . See, e . g ., AR1195 - 1208 ; AR745 ; AR733 ;

77

AR727; AR724; AR1248; AR1252; AR1255; AR1261; AR1258; AR1263;
AR792-93; AR1176-77. In 2014, LINA prompted Thoma to apply for
social security benefits, apparently on the presumption that her
disability would continue. AR264; AR268; AR806; AR33.

The SSA found Thoma's claims credible and consistent
with objective medical evidence, and that she was continuously
disabled under Social Security's rules. AR2054-62. Additionally,
the SSA opted not to review Thoma's medical evidence again until
three years after it made this determination, as it deemed that
"cessation of disability, as defined by SSA, is
unlikely/improbable during the intervening 3-year interval." Id.
While the SSA decision is not conclusive, it is surely a
relevant piece of evidence in support of Thoma's claim. See
Billinger v. Bell Atlantic, 240 F.Supp.2d 274, 285

(S.D.N.Y.

2003). Its evidentiary value is particularly clear here, where
the SSA finding is corroborated by evidence in the
administrative record. Cf. Alfano v. CIGNA Life Ins. Co. of

N.Y., 2009 WL 222351 at *17 (S.D.N.Y. Jan. 30, 2009)

("Because

it is probative of [plaintiff's] entitlement to benefits under
the Plan, and is corroborated by record evidence establishing
Alfano's disability, the Court accords the SSA determination
substantial weight.").

78

Both of Thoma's principal treating physicians have
stated that Thoma is disabled from any regular employment.
AR870; AR792-93; AR1174-77; AR1853-55; AR1943. These physicians
found Thoma's complaints to be entirely credible and consistent
with her lengthy medical history. AR1943; AR672-79; AR1853-55;
AR1849-52.

Alberigi, who has 35 years of experience providing
vocational and rehabilitation counseling and who has served as a
Vocational Expert for the SSA and Vocational Case Consultant for
the DOL, disagreed with several of LINA's findings. AR2080. Of
particular note, Alberigi found that the TSA was based
exclusively on the opinion of Dr. Berman, without consideration
of countervailing evidence, and failed to take into account
Thoma's reliance on pain medications. AR2054-58. Additionally,
Alberigi found that the TSA improperly calculated the wage data.
Id. For these and other reasons, Alberigi concluded that Thoma

was disabled under the LTD Plan's definition of disability.

Id.

In sum, Thoma has shown by a preponderance of the
evidence that her long history of health troubles related to her
spine, hip, and other conditions, as well as the medications
required to treat the pain associated with those difficulties,
has left Thoma "unable to perform the material duties of any

79

occupation for wh i ch .

. she is, or may reasonably become,

qualified based on education, training or experience" and
"unable to earn 60 % or more of her Indexed Earnings." As a
consequence , Thoma's claim is reinstated; she is entitled to LTD
Plan benefits from May 13, 2016 to the present . 4 Paese , 449 F.3d
at 441; Kinstler v. First Reliance Standard Life Ins . Co ., 181
F.3d 243 , 245

(2d Cir . 1999).

4. Thoma is entitled to pre-judgment interest and her
reasonable attorneys' fees.

A. Reasonable Attorneys' Fees and Costs

ERISA ' s fee shifting provision provides that the court
"in its discretion may allow a reasonable attorney's fee and
costs .

. to either party." 29 U.S.C. § 1132(g) (1) . "It is

well-established that 'Congress intended the fee provisions of
ERISA to encourage beneficiaries to enforce their statutory
rights.'" Donachie v. Liberty Life Assur . Co . of Boston, 745
F.3d 41, 45-46 (2d Cir . 2014)

(quoting Slupinski v . First Unum

Th oma is e n titled to a n award of benefits , as opposed to r ema n d ,
b ec a use the difficult y is not t h at t he admini s t r at i ve r eco r d was i ncomplet e,
b ut that a denial of benefit s b a s ed on the r ecord was unreasona bl e . Zer v os v .
Ver i zon N. Y ., Inc ., 277 F . 3d 635 , 648 (2d Ci r . 2002) (inte rn a l citation and
q uotation marks omitted) .

80

Life Ins . Co ., 554 F.3d 38 , 47

(2d Cir. 2009)). "[W]hether a

plaintiff has obtained some degree of success on the merits is
the so l e factor that a court must cons i der in exercising its
discretion" to award attorneys '

fees . Id . at 46 (citing Hardt v.

Reliance Std. Life Ins. Co. , 560 U. S. 242, 254 - 255

(2010)) .

Thus , because she has had "some degree of success on
the merits," Thoma is entitled to her reasonable attorneys '
and costs. Cf. Donachie , 745 F . 3d

fees

at 46 ("[I]n light of the

ERISA fee provision ' s statutory purpose

. granting a

prevai li ng plaint i ff ' s request for fees i s appropriate absent
some particular justif i cation for not doing so. " )

(quotation

marks and internal c i tations omitted). ; Alfano v . CIGNA Life
Ins . Co ., 2009 U.S. Dist . LEXIS 28 11 8 , at *2 - 3 (S.D . N. Y., Apr .

2. 2009) .

B. Pre-judgment Interest

The dec i sion to award prejudgment interest to a
successful ERISA cla imant, "like the decision to award
attorney's fees,

is committed to the sound discretion of the

district court." Slupinski , 554 F.3d at 53 - 54. Moreover , "like
an award of an attorney ' s fees for a successfu l ER I SA claim by
an employee benefit plan participant, prejudgment interest is an
81

element of [the plaintiff's] complete compensation." Id. "[T]he
factors that the district court is to consider in determining
whether to award prejudgment interest are (i) the need to fully
compensate the wronged party for actual damages suffered,

(ii)

considerations of fairness and the relative equities of the
award,

(iii) the remedial purpose of the statute involved,

and/or (iv) such other general principles as are deemed relevant
by the court." Id. at 55.

Thoma is entitled to pre-judgment interest because of
the equities, the need to fully compensate Thoma, and the
remedial purposes of ERISA.

V. Conclusion

Based on the findings of fact and conclusions of law
set forth above, Plaintiff's motion for judgment on the
administrative record is granted and Defendants' motion for
judgment on the administrative record is denied.

It is so ordered.

82

New York, NY
December!/' 2018

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