Fichtl v. First UNUM Life Insurance Company
Filing
44
OPINION AND ORDER re: 36 MOTION for Judgment on the Administrative Record. filed by Richard Fichtl, 35 MOTION for Judgment on the Administrative Record. filed by First UNUM Life Insurance Company.For the foregoing reas ons, Plaintiff's motion for judgment on the administrative record is GRANTED and Defendant's motion for judgment on the administrative record is DENIED. Judgment will therefore be entered in favor of Plaintiff to the extent stated in thi s opinion; the case will otherwise be remanded to the Defendant. Within seven (7) days of this order and opinion, Plaintiff shall submit a proposed judgment. Within twenty-eight (28) days of this order and opinion, Plaintiff may file a motion for attorney's fees and costs under 29 U.S.C. § 1132(g). The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 35 and 36. SO ORDERED. (Signed by Judge Jennifer L. Rochon on 3/26/2024) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RICHARD FICHTL,
Plaintiff,
Case No. 1:22-cv-06932 (JLR)
-againstFIRST UNUM LIFE INSURANCE COMPANY,
OPINION AND ORDER
Defendant.
JENNIFER L. ROCHON, United States District Judge:
Richard Fichtl (“Plaintiff”) brings this action against First Unum Life Insurance
Company (“Unum” or “Defendant”) under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et seq. ECF No. 1 (“Compl.”). Plaintiff challenges
Defendant’s decision to terminate benefits under two insurance plans. Id. ¶¶ 14-44.
The parties have fully briefed cross-motions for judgment on the administrative
record. ECF Nos. 35-1 (“Def. Br.”), 36 (“Pl. Br.”), 37 (“Pl. Opp.”), 39 (“Def. Opp.”), 42
(“Def. Reply”), 43 (“Pl. Reply”); see ECF Nos. 34-1 through 34-12 (collectively, “Admin.
R.”); see also Pl. Br. at 2-13 (“PSOF”); ECF Nos. 35-7 (“DSOF”), 38 (“Pl. RSOF”), 39-1
(“Def. RSOF”). Both parties have “clear[ly] . . . consent[ed]” to conducting “essentially a
bench trial on the papers with the [d]istrict [c]ourt acting as the finder of fact.” O’Hara v.
Nat’l Union Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir. 2011) (quotation marks
and citation omitted); see Pl. Br. at 1; Def. Br. at 13-14. The Court must therefore “make
explicit findings of fact and conclusions of law explaining the reasons for its decision” under
Federal Rule of Civil Procedure 52(a). Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124
(2d Cir. 2003). For the following reasons, the Court grants Plaintiff’s motion and denies
Defendant’s motion.
1
FINDINGS OF FACT 1
I.
The Plans
Plaintiff was a longtime employee of NewYork-Presbyterian Hospital (“NYPH”).
Admin. R. at 5:186. As an employee of NYPH, Plaintiff participated in two NYPH-sponsored
insurance policies issued and administered by Defendant: (1) the NewYork-Presbyterian
Hospital Group Long Term Disability Insurance Policy; and (2) the NewYork-Presbyterian
Hospital Group Life Insurance Policy. Def. RSOF ¶¶ 1, 5; Compl. ¶¶ 7, 9; ECF No. 22
(“Ans.”) ¶¶ 7, 9; see Admin. R. at 1:175-218 (the “LTD Plan”); id. at 10:194-11:45 (the “Life
Plan”). In their cross-motions, the parties do not contest that each policy is an “employee
benefit plan” governed by ERISA. See 29 U.S.C. § 1002(3) (defining “employee benefit
plan”); Pegram v. Herdrich, 530 U.S. 211, 223 (2000) (“Rules governing collection of
1
Review of a benefits decision under ERISA “is limited to the record in front of the claims
administrator unless the district court finds good cause to consider additional evidence.”
Muller, 341 F.3d at 125 (quoting DeFelice v. Am. Int’l Life Assurance Co. of N.Y., 112 F.3d
61, 67 (2d Cir. 1997)); accord Salisbury v. Prudential Ins. Co. of Am., 238 F. Supp. 3d 444,
451 (S.D.N.Y. 2017). “As neither party has argued that there is good cause to review
evidence beyond the administrative record, the Court bases its holding on the record.”
Brightman v. 1199SEIU Health Care Emps. Pension Fund, No. 18-cv-04932 (LJL), 2021 WL
809373, at *9 (S.D.N.Y. Mar. 2, 2021). The Court also appropriately considers judicial
admissions. See In re Motors Liquidation Co., 957 F.3d 357, 360 (2d Cir. 2020) (per curiam)
(“A judicial admission is a statement made by a party or its counsel which has the effect of
withdrawing a fact from contention and which binds the party making it throughout the course
of the proceeding.”).
At various points in its papers, Defendant asserts that it “cannot admit or deny the truth of”
certain statements because “the document [in the administrative record] cited by Plaintiff does
not contain anything other than Plaintiff’s own statements, which do not equate to undisputed
facts.” See, e.g., Def. RSOF ¶ 8. As Defendant elsewhere recognizes, however, the Court is
the factfinder here. See, e.g., Def. Br. at 13 (“Defendants should be granted judgment on the
administrative record by conducting essentially a bench trial on the papers with the District
Court as the finder of fact.” (quotation marks and citation omitted; emphasis added)).
Therefore, the Court may properly resolve disputes of fact, if any.
The Court’s findings of fact are primarily contained in this section but appear as well in its
conclusions of law.
2
premiums, definition of benefits, submission of claims, and resolution of disagreements over
entitlement to services are the sorts of provisions that constitute a plan.”). Several portions of
each plan are especially relevant to this case.
A. The LTD Plan
The LTD Plan states in relevant part:
HOW DOES UNUM DEFINE DISABILITY?
You are disabled when Unum determines that:
- you are limited from performing the material and substantial
duties of your regular occupation due to your sickness or
injury; and
- you have a 20% or more loss in your indexed monthly
earnings due to the same sickness or injury.
After 24 months of payments, you are disabled when Unum
determines that due to the same sickness or injury, you are
unable to perform the duties of any gainful occupation for
which you are reasonably fitted by education, training or
experience.
You must be under the regular care of a physician in order to be
considered disabled.
We may require you to be examined by a physician, other
medical practitioner and/or vocational expert of our choice.
Unum will pay for this examination. We can require an
examination as often as it is reasonable to do so. We may also
require you to be interviewed by an authorized Unum
Representative.
HOW LONG MUST YOU BE DISABLED BEFORE YOU
ARE ELIGIBLE TO RECEIVE BENEFITS?
You must be continuously disabled through your elimination
period. Unum will treat your disability as continuous if your
disability stops for 30 days or less during the elimination period.
The days that you are not disabled will not count toward your
elimination period.
Your elimination period is 180 days.
3
You are not required to have a 20% or more loss in your
indexed monthly earnings due to the same injury or sickness to
be considered disabled during the elimination period.
...
WHAT DISABILITIES HAVE A LIMITED PAY PERIOD
UNDER YOUR PLAN?
The lifetime cumulative maximum benefit period for all
disabilities due to mental illness and alcoholism or drug abuse
is 24 months. Only 24 months of benefits will be paid for any
combination of such disabilities even if the disabilities:
- are not continuous; and
- are not related.
Admin. R. at 1:189, 1:195.
The LTD Plan defines “material and substantial duties” as duties that (1) “are normally
required for the performance of your regular occupation” and (2) “cannot be reasonably
omitted or modified, except that if you are required to work on average in excess of 40 hours
per week, Unum will consider you able to perform that requirement if you are working or
have the capacity to work 40 hours per week.” Id. at 1:204. The LTD Plan defines “regular
occupation” as “the occupation you are routinely performing when your disability begins.
Unum will look at your occupation as it is normally performed in the national economy,
instead of how the work tasks are performed for a specific employer or at a specific location.”
Id. at 1:206. The LTD Plan defines “gainful occupation” as “an occupation that is or can be
expected to provide you with an income at least equal to your gross disability payment within
12 months of your return to work.” Id. at 1:203.
B. The Life Plan
The Life Plan states that “[p]remium payments are required for an insured while he or
she is disabled under this plan. The initial premium for each plan is based on the initial rate(s)
shown in the policy effective on the Employer’s original plan effective date.” Id. at 10:212.
4
There is an exception, however: the “premium waiver.” Id. (emphasis and capitalization
omitted). Under that provision, “Unum does not require premium payments for an insured
employee’s life coverage if he or she is under age 65 and disabled for 6 months. Proof of
disability, provided at the insured employee’s expense, must be filed by the insured employee
and approved by Unum.” Id. Elsewhere, the Life Plan states:
WHAT INFORMATION IS NEEDED AS PROOF OF YOUR
CLAIM?
If your claim is based on your disability, your proof of claim,
provided at Unum’s expense, must show:
- that you are under the regular care of a physician;
- the date your disability began;
- the cause of your disability;
- the extent of your disability, including restrictions and
limitations preventing you from performing your regular
occupation or any gainful occupation; and
- the name and address of any hospital or institution where you
received treatment, including all attending physicians.
We may request that you send proof of continuing disability
indicating that you are under the regular care of a physician.
This proof, provided at your expense, must be received within
45 days of a request by us.
If claim is based on death, proof of claim, provided at your or
your authorized representative’s expense, must show the cause
of death. Also a certified copy of the death certificate must be
given to us.
In some cases, you will be required to give Unum authorization
to obtain additional medical and non-medical information as
part of your proof of claim or proof of continuing disability.
Unum will deny your claim if the appropriate information is not
submitted.
Id. at 10:205-06. The Life Plan further provides:
The Plan, acting through the Plan Administrator, delegates to
Unum and its affiliate Unum Group discretionary authority to
make benefit determinations under the Plan. Unum and Unum
Group may act directly or through their employees and agents
or further delegate their authority through contracts, letters or
5
other documentation or procedures to other affiliates, persons or
entities. Benefit determinations include determining eligibility
for benefits and the amount of any benefits, resolving factual
disputes, and interpreting and enforcing the provisions of the
Plan. All benefit determinations must be reasonable and based
on the terms of the Plan and the facts and circumstances of each
claim.
Id. at 11:43.
II.
Plaintiff’s Benefits Claims and Determinations
A. Plaintiff’s Claim and Initial Approval
Plaintiff earned his Doctor of Pharmacy from the Virginia Commonwealth University
School of Medicine in 1987. Id. at 5:187. He spent the next three decades working at medical
institutions in New York City. Id. at 5:186-87.
Plaintiff’s last position was Director of Pharmacy IT, Finance, and Formulary
Management at NYPH. Id. at 5:186; Def. RSOF ¶ 7. In this role, his duties included:
(1) supervising over 750 full-time employees, including management and staff responsible for
pharmacy information technology and drug acquisition; (2) overseeing the NYPH
system’s acquisition of pharmaceuticals with an annual budget of approximately $340 million;
(3) leading the Formulary and Therapeutics Committee and various subcommittees
developing medication-use policy throughout NYPH; (4) managing system-wide compliance
with local, state, and national regulatory requirements; (5) overseeing research and
investigational drug services; and (6) coordinating communication with other hospital
departments regarding medication management. PSOF ¶ 9; Admin. R. at 1:69-70, 5:160-61.
At the time, NYPH consisted of at least eight facilities, including hospitals in Manhattan,
Brooklyn, Queens, Westchester County, and the Hudson Valley. PSOF ¶¶ 8, 10; Admin. R. at
5:160. Plaintiff often traveled between these various sites for work. PSOF ¶ 10; Admin. R. at
1:75.
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In the last week of December 2017, Plaintiff filed a claim with Defendant for shortterm-disability benefits in anticipation of a laparoscopic partial colectomy due to sigmoid
diverticulitis. DSOF ¶ 1; Def. RSOF ¶ 13. 2 In support of this claim, Plaintiff submitted an
attending-physician statement by Michael Lieberman, M.D. Admin. R. at 1:59-60; DSOF ¶ 1;
see Admin. R. at 1:88 (identifying general surgery as Dr. Lieberman’s specialty). On January
4, 2018, Plaintiff underwent the colectomy, after which he stopped working. Admin. R. at
1:12; Def. RSOF ¶ 13.
Defendant requested updated information about Plaintiff’s medical condition from Dr.
Lieberman on March 5, 2018. DSOF ¶ 2. In a response two days later, Dr. Lieberman stated
that he was advising Plaintiff to remain out of work beyond March 4, 2018, but that he
believed that Plaintiff would be able to return to work by April 9, 2018. Admin. R. at 1:8284. Dr. Lieberman noted that Plaintiff’s symptoms included fatigue, decreased appetite,
incisional pain, forgetfulness, and low exercise tolerance. Id. at 1:82.
Defendant also requested updated information on April 9, 2018, from Plaintiff’s
treating physician, Pamela Eliach, M.D. DSOF ¶ 3; see Def. RSOF ¶ 23 (identifying internal
2
“A colectomy is an operation to remove part or all of [someone’s] colon. . . . Laparoscopic
surgery is performed through several small incisions, using the aid of a tiny video camera
called a laparoscope.” Colectomy (Bowel Resection Surgery), Cleveland Clinic,
https://my.clevelandclinic.org/health/treatments/4671-colectomy-bowel-resection-surgery
[https://perma.cc/W95M-EVN8] (last updated Apr. 24, 2022) (emphasis omitted).
“Diverticula are small pouches, or sacs, that bulge outward through weak spots in [someone’s]
colon. They mostly form in the lower part of the colon. . . . Diverticulitis is the name for the
condition [someone] ha[s] when one or more of the pouches get inflamed.” Diverticulosis
and Diverticulitis, Nat’l Libr. Med., https://medlineplus.gov/
diverticulosisanddiverticulitis.html [https://perma.cc/432J-456Q] (last updated Feb. 21, 2024).
The sigmoid colon is “the contracted and crooked part of the colon immediately above the
rectum.” Sigmoid colon, Merriam-Webster, https://www.merriam-webster.com/dictionary/
sigmoid%20colon [https://perma.cc/7892-7H49].
7
medicine as Dr. Eliach’s specialty). In a response two days later, Dr. Eliach stated that she
was advising Plaintiff to remain out of work beyond April 16, 2018, because he was “unable
to function at his previous job at this time.” Admin. R. at 1:115, 1:117. She added that
Plaintiff was suffering from abdominal pain, nausea, vomiting, and weakness, and that
physical activity “exacerbated” the abdominal pain – indeed, Plaintiff could not “walk more
than a few steps without pain,” and he “became winded dressing for [the] office visit today.”
Id. at 1:115-16. Further, Plaintiff’s concentration was “poor,” he was “easily distracted,” and
he could not “focus on simple tasks.” Id. at 1:116. Dr. Eliach expected that Plaintiff could
potentially return to work by May 7, 2018, but that he might need to work from home
depending on his status. Id. He continued his treatment with Dr. Eliach and, in a follow-up
letter on June 26, 2018, she opined that, following Plaintiff’s office visit on June 20, 2018,
Plaintiff was still unable to return to work. Id. at 1:228.
On June 21, 2018, Plaintiff filed a claim with Defendant for long-term-disability
benefits (“LTD benefits”). DSOF ¶ 5. On July 2, 2018, Defendant had Deborah Maxcy
conduct a vocational review of Plaintiff’s occupation. Id. ¶ 8. Upon reviewing the relevant
documents, Maxcy concluded that Plaintiff’s “occupation in the national economy [wa]s best
identified [as] Director IT Operations,” which “involve[d] directing, planning and scheduling
the development, production, and administrative processing of the organization’s computer
operations.” Admin. R. at 1:281. This occupation’s physical requirements included
“[o]ccasional exertion” of up to 10 pounds and “mostly sitting, [with] brief periods of
standing and walking.” Id. at 1:282; see id. (defining “[o]ccasionally” as “[a]ctivity or
condition [that] exists up to 1/3 of the time (0 - 2.5 hours a day in an 8-hour workday)”). This
occupation’s cognitive requirements included “[h]ighly skilled work, directing the activities of
8
others, influencing others, making judgments and decisions, dealing with people, [and]
performing a variety of duties.” Id.
On June 28, 2018, Plaintiff met with neurologist and psychiatrist Cary Gunther, M.D.,
for a neuropsychiatric evaluation. Id. at 1:169, 2:99, 2:116-19, 5:114. In the “Assessment”
section of her appointment notes, Dr. Gunther wrote:
This is a 59 year old man referred by [Dr. Eliach] for concern
regarding his cognition, which has arisen in the context of
professional and personal stressors. He does meet criteria for
major depression and his in-office cognitive testing is consistent
with the effects of depression. His personal sense of deficits as
greater than testing suggests is also mood-congruent. He does
not have high risk behaviors.
Id. at 2:119 (further capitalization omitted). Plaintiff thereafter met with Dr. Gunther
monthly. Id. at 2:218, 2:340; see, e.g., id. at 2:112-15, 2:477-90 (appointment notes).
On September 11, 2018, Defendant approved Plaintiff’s request for LTD benefits
under the LTD Plan, with benefits payable as of July 3, 2018. Def. RSOF ¶ 15. In a letter to
Plaintiff, Defendant stated that it “approved your benefits because you are unable to perform
the material and substantial duties of your occupation due to your medical condition of
depression. Your benefits will continue as long as you meet the definition of disability in the
policy provided by your employer and are otherwise eligible under the policy terms.” Admin.
R. at 2:155. Defendant also noted that the LTD Plan “limits your benefits to 24 months due to
your medical condition of depression, if you continuously satisfy the definition of disability.
This means that if your medical records continue to support that you are unable to return to
work due to this condition, you will remain eligible to receive benefits for a maximum of 24
months based on this condition. This period will end on July 02, 2020.” Id. On September
26, 2018, Defendant also approved Plaintiff’s premium waiver under the Life Plan. Def.
RSOF ¶ 16. In a letter to Plaintiff, Defendant explained that “your Life Insurance coverage
9
will continue while you remain disabled subject to all terms and provisions of the Life
Insurance policy.” Admin. R. at 11:201.
On October 9, 2018, Plaintiff visited Dr. Stuart D. Saal, M.D. Id. at 2:250. Dr. Saal is
a nephrologist and a professor of clinical medicine at Weill Cornell Medical Center. Id. at
5:32, 5:223. Plaintiff’s visit concerned three “chief complaint[s],” including “chronic kidney
disease.” Id. at 2:250 (capitalization omitted). Dr. Saal’s notes reflect that Plaintiff was
experiencing issues with “memory and concentration” associated with the colectomy and that
walking “provokes abdominal pain.” Id. Plaintiff also visited Dr. Saal on December 13,
2018, see id. at 2:378-80, March 18, 2019, see id. at 3:289-92, and March 5, 2020, see id. at
6:104-06.
On November 15, 2018, Plaintiff informed Defendant that NYPH had terminated his
employment. See id. at 2:216. During a phone call with Defendant the next day, Plaintiff
stated that “[t]hings are not getting better,” and that “[w]hen he gets dehydrated and gets
constipated it[’]s really bad.” Id. at 2:217. For example, about a week before the call,
Plaintiff “spent the entire 3 days on the toilet.” Id. About two weeks before the call, Plaintiff
“had diarrhea that wouldn’t stop” and spent “a good 6 hours every day in the bathroom.” Id.
“Memory and concentration problems continue[d]” to plague him as well. Id. at 2:218.
Plaintiff reported similar physical and cognitive symptoms (in nature, frequency, and
severity) during subsequent calls with Defendant on January 25, 2019, see id. at 2:339-42;
March 25, 2019, see id. at 3:127-31; July 2, 2019, see id. at 3:356-59; October 11, 2019, see
id. at 4:164-66; and January 15, 2020, see id. at 5:32-33. During the March 25 call, Plaintiff
mentioned that, as part of his new treatment plan, he had begun tracking his physical
symptoms. Id. at 3:127. According to this tracking, Plaintiff had been “[n]auseous for 24
days and vomited 11 times in that month.” Id. Plaintiff further stated during the March 25
10
call that he was experiencing knee and ankle pain (a symptom that Plaintiff also reported in
subsequent calls). Id. at 3:128, 3:357, 4:164, 5:33. During the July 2 call, Plaintiff noted that
his doctors had discovered renal damage as well. Id. at 3:356.
On November 20, 2018, Plaintiff visited endocrinologist Brian Schwartz, M.D., for
diabetes treatment. PSOF ¶ 20; see Admin R. at 2:244 (Plaintiff has had Type 2 diabetes
since at least 2004). Dr. Schwartz’s notes stated that Plaintiff was “[s]till having nausea 3
times weekly, constipation, diarrhea, and frequent bowel movements.” Admin. R. at 2:244.
On December 22, 2018, the Social Security Administration (the “SSA”) approved
Plaintiff for federal disability (“SSDI”) benefits. Def. RSOF ¶ 21. In accordance with an
offset provision in the LTD Plan, the quantity of LTD benefits paid to Plaintiff was reduced
by the amount of Plaintiff’s SSDI benefits. Id. ¶ 22. Defendant requested a copy of
Plaintiff’s SSDI file from the SSA using an authorization dated March 25, 2019. Admin. R. at
6:168. On September 3, 2019, Defendant “received a rejection notice from the SSA rejecting
the [submitted] authorization.” Id. at 4:93. In an internal claim note entered on September 6,
2019, Defendant stated that “no additional action [was] needed at this time.” Id.
On March 20, 2019, Dr. Eliach advised Defendant that – based on her evaluation of
Plaintiff on January 3, 2019 – Plaintiff was incapable of working at even a sedentary demand
level due to abdominal pain, low energy, difficulty focusing, and uncontrolled diabetes. Id. at
3:56-57; Def. RSOF ¶ 23. Dr. Eliach retired shortly thereafter; her last appointment with
Defendant was on April 29, 2019. Admin. R. at 5:97. During his phone call with Defendant
on July 2, 2019, Plaintiff noted Dr. Eliach’s retirement and stated that he would “continue to
see the specialist until they figure out who is going to take [Dr. Eliach’s] patients.” Id. at
3:356-57.
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Plaintiff underwent an MRI exam of his right ankle and hindfoot on February 7, 2020.
Id. at 5:90-92. He did so at the request of Elisabeth Lachmann, M.D., a specialist in physical
medicine and rehabilitation. Id. at 3:120, 4:56, 5:90; PSOF ¶ 28. According to the MRI
impression, Plaintiff had a “[c]hronic nonunited avulsion fractures of the tip of the medial
malleolus with associated scar remodeled deltoid ligament.” Admin. R. at 5:91. In a letter to
Defendant dated February 10, 2020, Dr. Lachmann opined that Plaintiff was “[u]nable to
work standing & walking [for more than] ten minutes required for minimal sedentary work,”
and that Plaintiff was “[u]nable to tolerate sitting (chronic nausea & vomiting).” Id. at 5:88.
Stephen Leverett, D.O., is employed by Defendant as an “in-house physician.” Def.
Opp. at 12; see also id. at 18 (referring to Dr. Leverett as “Unum’s reviewing physician”). He
specializes in family medicine. Admin. R. at 5:114. On February 26, 2020, Dr. Leverett
issued a report based on his review of Plaintiff’s medical file. Id. at 5:113-18. Dr. Leverett
opined that Plaintiff’s “reports of functional impairment exceed[ed] the restrictions and/or
limitations reasonably expected” based on several facts, including: (1) the lack of an
“identifiable postoperative complication”; (2) the fact that there was “documentation of [a]
normal gait and reports from [Plaintiff] of [the] ability to walk to the park, etc.”; and
(3) “[m]ultiple reports of activities” reflecting Plaintiff’s “actual functional capacity,” such as
“enjoying woodworking hobby,” “walking to the pharmacy or the local park,” “participating
in family activities including watching his son play baseball,” “putting together his patio
garden,” being “active in stock market trading with [the] ability to ‘focus during [the] trading
day,’” “running errands up to 3-4 times a week,” and “driving ‘regularly without incident.’”
Id. at 5:116-17. Dr. Leverett concluded that “there is no condition or combination of
conditions that would reasonably preclude” Plaintiff from performing his duties “on a fulltime, sustainable basis.” Id. at 5:117-18. On February 28, 2020, designated medical officer
12
Jamie Lewis, M.D., a specialist in physical medicine and rehabilitation, also reviewed
Plaintiff’s medical file and agreed with Dr. Leverett’s analysis. Id. at 5:122-23; DSOF ¶ 38.
B. Termination of Benefits and Internal Appeal
In a letter dated March 3, 2020, Defendant informed Plaintiff that it was terminating
his LTD benefits. Admin. R. at 5:132-40. Defendant stated that it had “determined [that] as
of March 04, 2020, you are able to perform the duties of your occupation. Because you are
not disabled according to the policy, benefits are no longer payable.” Id. at 5:133. Defendant
noted that Plaintiff had “report[ed] the ability to perform activities such as woodworking[,]
walking to the park, post office, and pharmacy, as well as the ability to garden, participate in
family activities, and the ability to be active in stock market trading.” Id. at 5:135. According
to Defendant, “[t]hese activities and the ability to focus during [the] trading day and driving
without incident are consistent with sustained physical and mental dexterity and
coordination.” Id.
In a letter dated March 6, 2020, Defendant informed Plaintiff that it was terminating
his premium waiver. Id. at 12:194-98. Defendant explained: “Since our Long Term
Disability department has determined you are not precluded from performing your own
occupational demands, you do not meet the policy definition of disability for Life Insurance
Premium Waiver. Therefore, your claim has been closed.” Id. at 12:195.
Plaintiff appealed the LTD and Premium Waiver termination decisions on August 23,
2020. Id. at 5:158-81; Def. RSOF ¶ 33. Plaintiff stated, among other things, that: (1) his
“garden” consisted of about 10 potted plants on his patio, which his wife and daughter helped
him maintain; (2) his chronic ankle pain, abdominal pain, nausea, vomiting, and fatigue
prevented him from extensively walking throughout large hospitals as his occupation
required; (3) during a 30-day period spanning January and February 2020, he experienced
13
nausea on 29 days and vomiting on 20 days, including acute vomiting episodes during which
Plaintiff vomited 20-plus times in a 48-hour period; and (4) he continued to struggle with
focus, cognition, and memory. Def. RSOF ¶ 33. Plaintiff also contended that, although he
tried to engage in normal life activities as much as possible (per his doctors’
recommendations), his ability to perform such activities on an occasional basis did not mean
that he could work full-time in his prior role at NYPH. Id.
In support of his appeal, Plaintiff submitted letters from four treating physicians. In
the first letter, gastroenterologist Paul Basuk, M.D., stated that he had been treating Plaintiff
since January 2018 for “chronic” and “unrelenting” symptoms of “intractable nausea,” as well
as abdominal pain and fecal incontinence. Id. ¶ 34. Dr. Basuk noted the “difficulty in
management” of Plaintiff’s symptoms, as evidenced by his discussions with Plaintiff about
“obtaining medications not available in the United States.” Admin. R. at 5:194.
In the second letter, Dr. Gunther stated that Plaintiff had “engaged with his family and
participated in specified activities . . . at the urging of his physicians, including myself,” and
that Plaintiff’s participation in such activities “should be understood as the response of a
motivated patient to [his doctors’] treatment recommendations.” Id. at 5:206; Def. RSOF
¶ 35. Dr. Gunther added:
It is also inaccurate to say that there is no evidence of a
cognitive deficit that could be attributed to [Plaintiff’s] mental
health. I have repeatedly stated that [Plaintiff’s] cognitive
complaint is consistent with the known adverse effects of major
depression on various aspects of cognition and most specifically
on concentration. The lack of finding of an organic dementing
syndrome by no means negates the existence of a cognitive
deficit secondary to a psychiatric diagnosis, in this case major
depressive disorder.
Admin. R. at 5:206.
14
In the third letter, Dr. Saal stated that he was treating Plaintiff’s “chronic kidney
disease in the setting of monoclonal gammopathy, diabetes, diverticulitis, and hypertension.”
Id. at 5:223. Dr. Saal opined:
Medically, [Plaintiff] continues to present with postoperative
complications related to the [January 2018] surgery and his
chronic kidney disease. These include a significant reduction in
physical and mental stamina that makes it impossible for him to
perform with the sustained acuity, memory function, and
concentration his job duties require. He does have occasional
days where his function is closer to his previous baseline for
short periods, but this improvement is unfortunately not
frequent or reliable enough for him to return to active
employment at this time.
Id.
In the fourth letter, Dr. Lachmann explained that in the preceding three-and-a-half
years, Plaintiff had “developed complex regional pain syndrome (CRPS) affecting the right
ankle.” Id. at 5:210. She reiterated her view (also expressed in her letter on February 10,
2020) that Plaintiff was “unable to perform his occupational demands required for minimal
sedentary work because of Ankle CRPS and other conditions.” Id.
After receiving Plaintiff’s appeal, Defendant had two doctors conduct reviews of
Plaintiff’s medical file: Peter Brown, M.D. and Scott Norris, M.D. Id. at 6:167-72, 6:193-99.
Dr. Brown is a psychiatrist. DSOF ¶ 47. Upon reviewing Plaintiff’s medical records, Dr.
Brown issued his report on September 24, 2020. Id. Dr. Brown concluded that “[b]ehavioral
health restrictions or limitations can be supported for the closed timeframe from the date of
disability up to 04/18/19 but not beyond,” Admin. R. at 6:171. Dr. Brown stated that “[w]hile
[Plaintiff] continues to have residual cognitive symptoms of depression (as is common in
chronic depression) his mood has been stable, there is no report [of] difficulty with motivation
15
or energy level, and there is no report of impairment in any activities he chooses to perform.”
Id. at 6:172.
Dr. Norris is “an in-house file-reviewer who is employed by Unum.” Pl. Br. at 17
(quotation marks and citation omitted); cf. Def. Opp. at 17-18 (defending Dr. Norris’s
opinions on other grounds, but not contesting Plaintiff’s account of Dr. Norris’s employment);
Def. Reply at 16-20 (same). He is certified to practice family, occupational, and aerospace
medicine. Admin. R. at 6:193. Upon reviewing Plaintiff’s medical records, Dr. Norris issued
his report on October 5, 2020. DSOF ¶ 49. Dr. Norris concluded that restrictions and
limitations were not supported beyond March 3, 2020. Id. Dr. Norris asserted that Dr.
Lachmann’s views, as reflected in her submission in support of Plaintiff’s appeal, were
“highly inconsistent with other documented findings of the insured’s gait or right LE findings
including Dr. Saal’s 3/5/20 exam.” Admin. R. at 6:194. 3 Dr. Norris also stated, however, that
he “d[id] not agree with Dr. Saal’s 8/3/20 opinion submitted on Appeal,” and that he would
“attempt to contact [Dr. Saal] to discuss [Dr. Saal’s] clinical rationale.” Id. at 6:198.
In an addendum report dated October 13, 2020, Dr. Norris recounted his phone call
that day with Dr. Saal. See id. at 6:213-16. According to Dr. Norris, Dr. Saal “stated that he
was surprised that [Plaintiff] had such a difficult time following his abdominal surgery and
noted that he would not have expected [Plaintiff] to have this level of disability following
3
Dr. Norris further described Dr. Lachmann’s letter as “highly irregular, as the note also
referenced several documents that did not occur until a future date.” Admin. R. at 6:194.
This accusation apparently refers to the fact that although the letter lists the “Date of Service”
as February 3, 2020, it references multiple documents postdating February 3, 2020. Id. at
5:210. But Dr. Lachmann’s letter does not purport to have been drafted or signed on February
3, 2020, and the Court will not lightly infer that, as Dr. Norris implied, Dr. Lachmann’s letter
was somehow improperly drafted or submitted. The Court instead finds that the listing of
February 3, 2020, as the “Date of Service” reflects that Dr. Lachmann’s then-most recent
appointment with Plaintiff was on February 3, 2020. See, e.g., id. at 5:71-75, 5:93. The Court
therefore rejects Dr. Norris’s characterization of the letter as “highly irregular.” Id. at 6:194.
16
bowel surgery or based on his Stage 3 [chronic kidney disease] and current renal function.”
Id. at 6:213. Dr. Norris also recalled Dr. Saal stating that “if [Plaintiff] wanted to work, there
was no reason that he could not do so based on his renal function.” Id. When Dr. Norris
“noted that records indicate that [Plaintiff] reported engaging in significant cognitive and
physical activities,” Dr. Saal apparently “indicated that he understood the apparent
inconsistencies” but nonetheless “supported [Plaintiff] remaining out of work based on what
[Plaintiff] reported to him.” Id. This call did “not change[]” Dr. Norris’s medical opinion.
Id. at 6:214. And because “[t]here was no change in [Dr. Saal’s] opinion,” Dr. Norris
concluded that “a confirmatory letter is not necessary.” Id.
Plaintiff’s appeal also prompted Defendant to enlist vocational consultant Kelly
Marsiano to reevaluate the initial conclusion reached by Maxcy in mid-2018. Id. at 5:256;
DSOF ¶¶ 5, 42. In a report dated September 8, 2020, Marsiano concluded that Plaintiff’s
vocational conclusion should be changed from “Director IT Operations” to “Operations
Director.” Admin. R. at 5:256-58. The two positions were identical with respect to their
physical demands, as both require “[o]ccasional exertion up to 10lbs” and “mostly sitting,
[with] brief periods of standing and walking.” Id. at 2:257; DSOF ¶ 42; cf. Admin. R. at
1:282. But Plaintiff’s “job duties required more than overseeing IT operations.” Admin. R. at
5:257. As Marsiano explained, the “Operations Director” occupation “incorporates directing,
developing, implementing and administering operations strategies and objectives to ensure the
achievement of the organization’s goals and objectives.” Id. Compared to the “Director IT
Operations” occupation, “Operations Director” is “more broad and incorporates the types of
responsibilities the insured and the employer report. It encompasses establishing and
17
maintaining policies and procedures, overseeing compliance and establishing and assessing
the operating budget.” Id. 4
On October 15, 2020, Defendant informed Plaintiff that the benefits decision was
upheld on appeal. DSOF ¶ 52. Defendant advised that Plaintiff could review and respond to
the new information and rationale that Defendant used to uphold the decision. Id.
Over the next several months, Plaintiff repeatedly challenged Defendant’s benefits
decision to no avail. Id. ¶¶ 53-71. In support of these further challenges, Plaintiff submitted
additional materials, including: (1) Plaintiff’s log of episodes of nausea and vomiting that
Plaintiff had maintained between February 2019 and November 2020, PSOF ¶ 41; (2) two
medical reports from the SSA’s disability file (one physical and one psychiatric; both
conducted on October 26, 2018), id. ¶ 42; and (3) the SSA’s “Disability Determination
Explanation,” id. ¶ 43.
C. Procedural History
Proceeding under 29 U.S.C. § 1132(a)(1)(B), Plaintiff sued Defendant on August 15,
2022. Compl. With respect to the LTD Plan, Plaintiff requested: (1) “payment of disability
benefits due [to] Plaintiff”; (2) “an order declaring that Plaintiff is entitled to immediate
reinstatement to the LTD Plan, with all ancillary benefits to which he is entitled by virtue of
his disability”; (3) in the alternative to the first two forms of relief sought, “an order
remanding Plaintiff’s claim to the claims administrator to the extent any new facts or
4
In subsequent letters to Defendant, Plaintiff argued that “Operations Director” was an
incorrect vocational conclusion. See, e.g., DSOF ¶¶ 53, 58. In his briefing before the Court,
Plaintiff does not take issue with the “Operations Director” vocational conclusion, so the
Court assumes that it is correct. See Rodriguez v. Carson, 401 F. Supp. 3d 465, 470
(S.D.N.Y. 2019) (“A party may forfeit a right or defense by actively litigating other issues and
forgoing the opportunity to litigate that right or defense.” (brackets omitted) (quoting Roberts
v. Bennaceur, 658 F. App’x 611, 616 (2d Cir. 2016) (summary order))).
18
submissions are to be considered”; (4) an award of attorney’s fees and costs under 29 U.S.C.
§ 1132(g); and (5) pre-judgment and post-judgment interest. Id. at 6 (further capitalization
omitted). Plaintiff requested the same relief under the Life Plan except, instead of requesting
payment of disability benefits, he sought “approval of the waiver of premium benefits
resulting in waiver of premiums under the Life Plan.” Id. at 9 (further capitalization omitted).
Defendant answered on October 11, 2022. Ans. On March 31, 2023, the parties filed
cross-motions for judgment on the administrative record. Pl. Br.; Def. Br.
CONCLUSIONS OF LAW
I.
Legal Standard
“[A] denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed
under a de novo standard unless the benefit plan gives the administrator or fiduciary
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); accord Metro. Life
Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008). “When a plan gives an administrator such
discretion, a court may not overturn the administrator’s denial of benefits unless its actions are
found to be arbitrary and capricious.” Arnone v. Aetna Life Ins. Co., 860 F.3d 97, 105 (2d Cir.
2017) (quotation marks and citation omitted). Conversely, “[w]here an ERISA plan does not
accord an administrator discretionary authority to determine eligibility for benefits or to
construe the terms of the plan, a district court reviews all aspects of an administrator’s
eligibility determination, including fact issues, de novo.” Locher v. Unum Life Ins. Co. of
Am., 389 F.3d 288, 293 (2d Cir. 2004) (quotation marks and citation omitted). “[U]pon de
novo review, a district court may render a determination on a claim without deferring to an
administrator’s evaluation of the evidence.” Id. at 296. “The question for the Court is simply
whether the decision to deny Plaintiff’s claim was correct.” Kagan v. Unum Provident, 775 F.
19
Supp. 2d 659, 670 (S.D.N.Y. 2011) (brackets, quotation marks, and citation omitted). Under
de novo review, the plaintiff has the burden of proving by the preponderance of the evidence
that he is disabled within the meaning of the plan. See id. at 671; Critchlow v. First UNUM
Life Ins. Co. of Am., 378 F.3d 246, 256 (2d Cir. 2004).
As noted, this case involves two distinct ERISA plans: the LTD Plan and the Life
Plan. “ERISA plans are construed according to federal common law, and general principles
of contract law apply to their interpretation.” McCutcheon v. Colgate-Palmolive Co., 62 F.4th
674, 687 (2d Cir. 2023) (quotation marks and citation omitted). “A reservation of discretion
need not actually use the words ‘discretion’ or ‘deference’ to be effective, but it must be
clear.” Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 108 (2d Cir. 2005). “The plan
administrator bears the burden of proving that the deferential standard of review applies.”
Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002). The Court addresses each plan
in turn.
II.
The LTD Plan
A. Standard of Review
As a threshold matter, the parties dispute whether the LTD Plan “gives [Defendant]
discretionary authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone, 489 U.S. at 115. Plaintiff contends that benefits decisions under the LTD
Plan are subject to the Court’s de novo review. See Pl. Br. at 13; Pl. Opp. at 1-2; Pl. Reply at
1-2. The Court agrees.
Defendant’s sole argument for applying the deferential standard of review to the LTD
Plan is the LTD Plan’s use of the word “determines” in its definition of disability. See Def.
Opp. at 3; Admin. R. at 1:189 (“You are disabled when Unum determines that: [(1)] you are
limited from performing the material and substantial duties of your regular occupation due to
20
your sickness or injury; and [(2)] you have a 20% or more loss in your indexed monthly
earnings due to the same sickness or injury. After 24 months of payments, you are disabled
when Unum determines that due to the same sickness or injury, you are unable to perform the
duties of any gainful occupation for which you are reasonably fitted by education, training or
experience.” (original emphases omitted; emphases added)). As Plaintiff correctly notes,
Nichols forecloses Defendant’s interpretation. See Pl. Reply at 1-2. In Nichols, “[t]he plan
state[d] that a disability ‘exists when Prudential determines that all of these conditions are
met’ and then [went] on to list specific conditions.” 406 F.3d at 108. The Second Circuit held
that “[t]he phrase ‘when Prudential determines,’” by itself, “lack[ed] sufficient indicia of
subjectivity” to satisfy the administrator’s burden of proving that the deferential standard of
review applied. Id.; see id. (“To find discretion, we would have to read in language,
effectively amending the provision to find disability ‘when Prudential determines to its
satisfaction that all these conditions are met.’ We therefore . . . hold that the plan vests no
discretion in Prudential.”).
Nichols instructs that “language giv[ing] [the administrator] the power to make [a
benefits] determination,” but then listing “specific conditions requir[ing] that such power be
exercised only in accordance with objective standards,” does not suffice to vest discretion in
the administrator. Id. Following Nichols, courts have repeatedly held that the word
“determines,” without more, requires de novo review rather than deferential review. See, e.g.,
Quigley v. Unum Life Ins. Co. of Am., No. 22-cv-05906 (JPO), 2023 WL 6387021, at *4
(S.D.N.Y. Sept. 29, 2023); Sevely v. Bank of N.Y. Mellon Corp. Long Term Disability
Coverage Plan, No. 17-cv-06207 (DAB), 2018 WL 8967296, at *1, *3-4 (S.D.N.Y. Sept. 26,
2018); Est. of Bochniarz ex rel. Bochniarz v. Prudential Ins. Co. of Am., No. 11-cv-00867,
2015 WL 13745694, at *14-15 (W.D.N.Y. June 22, 2015), report and recommendation
21
adopted, 2015 WL 8516432, at *2-3 (W.D.N.Y. Dec. 11, 2015); Wenger v. Prudential Ins.
Co. of Am., No. 12-cv-01896 (KBF), 2013 WL 5441760, at *8-9 (S.D.N.Y. Sept. 26, 2013);
Durham v. Prudential Ins. Co. of Am., 890 F. Supp. 2d 390, 393-95 (S.D.N.Y. 2012);
Alexander v. Winthrop, Stimson, Putnam & Roberts Long Term Disability Coverage, No. 04cv-00760 (RJD), 2005 WL 8160040, at *8-9 (E.D.N.Y. Sept. 27, 2005); see also, e.g.,
Graziano v. First Unum Life Ins. Co., No. 21-cv-02708 (PAC), 2023 WL 4530274, at *1-2,
*13 (S.D.N.Y. July 13, 2023) (parties agreed that de novo standard applied to Unum-issued
plan whose relevant provisions were substantially identical to the relevant provisions in the
LTD Plan and the Life Plan); Glickman v. First Unum Life Ins. Co., --- F. Supp. 3d ----, 2023
WL 3868519, at *1, *3 (S.D.N.Y. June 7, 2023) (same for provision in LTD Plan); Catania v.
First Unum Life Ins. Co., No. 19-cv-00133, 2020 WL 2129374, at *1-2, *5 (N.D.N.Y. May 5,
2020) (same); Doe v. Unum Life Ins. Co. of Am., 116 F. Supp. 3d 221, 223 (S.D.N.Y. 2015)
(same); cf. Pellegrino v. First Unum Life Ins. Co., No. 20-cv-00484, 2021 WL 3912238, at *3,
*8 (N.D.N.Y. Sept. 1, 2021) (deferential standard of review applied due to inclusion of
additional provision stating that Unum “has discretionary authority to determine a claimant’s
eligibility for benefits and to interpret the terms and provisions of the Plan” (brackets
omitted)); Hines v. First Unum Life Ins. Co., No. 14-cv-02961 (ER), 2016 WL 1246483, at
*1, *11 (S.D.N.Y. Mar. 23, 2016) (similar).
Based on the Nichols line of cases and the absence of material differences between the
plans in those cases and the LTD Plan at issue here, the Court holds that the LTD Plan is
subject to de novo review. The Court therefore “stands in the shoes of the original
decisionmaker, interprets the terms of the benefits plan, determines the proper diagnostic
criteria, reviews the medical evidence, and reaches its own conclusion about whether the
22
plaintiff has shown, by a preponderance of the evidence, that [the plaintiff] is entitled to
benefits under the plan.” Quigley, 2023 WL 6387021, at *4 (citation omitted).
B. Benefits Determination
As noted above, the Court serves as “the finder of fact” in this “bench trial on the
papers.” O’Hara, 642 F.3d at 116 (quotation marks and citation omitted). Thus, the Court
decides “whose testimony to credit and which of permissible inferences to draw,” regardless
of “whether those findings are based on witness testimony, or on documentary evidence, or on
inferences from other facts.” Ceraso v. Motiva Enters., LLC, 326 F.3d 303, 316 (2d Cir.
2003). Further, on de novo review of an ERISA benefits determination, a district court is
“free to evaluate [a treating physician’s] opinion in the context of any factors it considered
relevant, such as the length and nature of [the doctor-patient] relationship, the level of the
doctor’s expertise, and the compatibility of the opinion with the other evidence.” Connors v.
Conn. Gen. Life Ins. Co., 272 F.3d 127, 135 (2d Cir. 2001). This “freedom of evaluation
extends to the opinions of non-treating physicians who have not examined a plaintiff and base
their opinions solely upon the documents in an insurance company’s claim file.” Sheehan v.
Metro. Life Ins. Co., 368 F. Supp. 2d 228, 253 (S.D.N.Y. 2005); accord Clarke v. Aetna Life
Ins. Co., No. 04-cv-01440 (RJH), 2009 WL 4259980, at *22 (S.D.N.Y. Dec. 1, 2009).
The core issue in this case is whether Plaintiff is “limited from performing the material
and substantial duties of [his] regular occupation due to [his] sickness or injury.” Admin. R.
at 1:189 (emphasis omitted). In deciding this issue, the Court finds that the medical opinions
of Plaintiff’s treating physicians (especially Drs. Basuk, Gunther, Saal, and Lachmann) are
more probative of Plaintiff’s health and capabilities than the medical opinions of Defendant’s
in-house file reviewers (namely, Drs. Leverett, Lewis, Brown, and Norris). To be sure, the
Court – like the plan administrator in whose shoes it stands – is “not obliged to accord special
23
deference to the opinions of treating physicians.” Black & Decker Disability Plan v. Nord,
538 U.S. 822, 825 (2003) (emphasis added). But the Court “may give their opinions
appropriate weight ‘if it finds these opinions reliable and probative.’” Barbu v. Life Ins. Co.
of N. Am., 35 F. Supp. 3d 274, 289 (E.D.N.Y. 2014) (emphasis added) (quoting Paese v.
Hartford Life & Accident Ins. Co., 449 F.3d 435, 442 (2d Cir. 2006)). On the facts of this
case, the Court finds the medical opinions of Plaintiff’s treating physicians more credible and
persuasive for three reasons.
To begin with, “the length and nature of [the doctor-patient] relationship[s]” favor the
opinions of Plaintiff’s treating physicians. Connors, 272 F.3d at 135. Each of Drs. Basuk,
Gunther, Saal, and Lachmann has treated Plaintiff for years and therefore has a greater degree
of understanding of Plaintiff’s capabilities, limitations, and credibility than Drs. Leverett,
Lewis, Brown, and Norris, none of whom appear to have met (let alone medically examined)
Plaintiff.
The ability to assess credibility is particularly significant here because several of
Plaintiff’s symptoms – including nausea, pain, and difficulty concentrating – rely to some
extent on “subjective” evidence (as opposed to “objective” evidence). The Second Circuit
“has long recognized that subjective complaints of disabling conditions are not merely
evidence of a disability, but are an ‘important factor to be considered in determining
disability.’” Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013) (quoting
Connors, 272 F.3d at 136). The probity of self-reported symptoms, however, depends on the
credibility of the source. See, e.g., Connors, 272 F.3d at 136-37. And “as compared to
physicians who conduct only paper reviews, treating physicians are far better positioned to
assess a claimant’s credibility.” Hamid v. Metro. Life Ins. Co., 517 F. Supp. 3d 903, 917
(N.D. Cal. 2021) (“The fact that [Plaintiff’s] treating physicians uniformly concluded he was
24
credible and disabled is thus strong evidence in his favor, even against the uniform
conclusions of [Defendant’s] consultants that he was not.”); accord Radmilovich v. Unum Life
Ins. Co. of Am., --- F. Supp. 3d ----, 2023 WL 7457118, at *12 (C.D. Cal. Nov. 7, 2023)
(“Courts generally give greater weight to doctors who have actually examined the claimant
versus those who only review the file, especially when they are employed by the insurer as
here.” (quotation marks and citation omitted)); Chicco v. First Unum Life Ins. Co., No. 20-cv10593 (DLC), 2022 WL 621985, at *4 (S.D.N.Y. Mar. 3, 2022) (“It is also significant that
none of First Unum’s physicians personally examined Chicco. By contrast, every medical
professional that did examine Chicco found that she was unable to perform her job duties.”);
Diamond v. Reliance Standard Life Ins. Co., 672 F. Supp. 2d 530, 537 (S.D.N.Y. 2009)
(“[E]specially when the chief symptoms of the illnesses are subjective . . . [,] due weight
should be given to the treating physician’s findings since that physician has the most
experience with the patient and his or her history with the symptoms of the illness.”);
Kaminski v. UNUM Life Ins. Co. of Am., 517 F. Supp. 3d 825, 862 (D. Minn. 2021)
(collecting cases where “courts have observed that assessing pain or other conditions with
subjective symptoms may be best informed by physicians who see the claimant regularly and
make in-person observations”).
Defendant argues that its decision to terminate Plaintiff’s LTD benefits was based on a
preference for objective evidence over subjective evidence. See, e.g., Def. Br. at 26-29; Def.
Opp. at 12-18. It is true that, under deferential review, a plan administrator is “not required to
accept [a plaintiff’s] subjective complaints in the absence of objective evidence supporting
disability,” and that it is “reasonable for [a plan administrator] to require objective evidence to
support [a plaintiff’s] alleged physical limitations.” Topalian v. Hartford Life Ins. Co., 945 F.
Supp. 2d 294, 350 (E.D.N.Y. 2013) (citation omitted); accord Hobson v. Metro. Life Ins. Co.,
25
574 F.3d 75, 88 (2d Cir. 2009) (“[I]t is not unreasonable for ERISA plan administrators to
accord weight to objective evidence that a claimant’s medical ailments are debilitating in
order to guard against fraudulent or unsupported claims of disability . . . [and] to require such
evidence so long as the claimant was so notified.”). As noted, however, the Court’s review
here is de novo, so deferential-review cases such as Topalian and Hobson are not entirely on
point. In turn, “the Second Circuit has consistently recognized that as a general matter,
objective findings are not required in order to find that an applicant is disabled. Subjective
pain may serve as the basis for establishing disability, even if unaccompanied by positive
clinical findings of other objective medical evidence.” Diamond, 672 F. Supp. 2d at 536
(ellipsis, emphasis, quotation marks, and citations omitted); accord Miles, 720 F.3d at 486.
The Court therefore may properly consider the evidence submitted by Plaintiff even if the
Court assumes that some of it falls into the category of subjective evidence. That evidence,
consisting of, among other things, the medical opinions of Plaintiff’s four treating physicians,
strongly favors finding Plaintiff disabled under the LTD Plan.
In its reply brief, see Def. Reply at 10, 14-15, Defendant highlights Dr. Gunther’s
note, during her initial assessment, that Plaintiff’s “personal sense of deficits” was somewhat
“greater than testing suggests,” Admin. R. at 2:119; see also id. at 5:114 (Dr. Leverett quoting
this statement in his February 26, 2020 report); id. at 10:117 (Defendant mentioning this
statement in its denial of Plaintiff’s appeal a year later). According to Defendant, this note
puts “Plaintiff’s credibility . . . at issue” such that the Court should not consider Plaintiff’s
“subjective complaints.” Def. Reply at 14. The Court disagrees. To begin with, the fact that
Plaintiff’s depression intensified his negative perceptions of his own cognitive abilities does
not mean that Plaintiff’s other complaints were likewise “greater than testing suggests.”
Admin. R. at 2:119. In other words, there is no clear reason to believe that Plaintiff’s low
26
self-esteem impaired, for example, the subjective evidence regarding Plaintiff’s pain and
nausea. Also, the note’s very existence shows that Dr. Gunther was aware of, and thus able to
account for, Plaintiff’s potentially exaggerated sense of personal impairment – yet she
nonetheless opined that Plaintiff suffers from “major depressive disorder” with consequential
“adverse effects . . . on various aspects of cognition and most specifically on concentration.”
Id. at 5:206.
Defendant also attacks the probity of Dr. Saal’s medical opinion on two principal
grounds, neither of which persuades the Court. First, Defendant notes that Dr. Saal personally
examined Plaintiff only four times in two years. See Def. Opp. at 13. Dr. Saal’s four inperson examinations of Plaintiff, of course, were four more than those performed by all of
Defendant’s file reviewers put together. Also, Dr. Saal personally examined Plaintiff at least
as recently as March 5, 2020, see Admin. R. at 6:104-06 – within five months of Dr. Saal’s
letter in support of Plaintiff’s appeal dated August 3, 2020, see id. at 5:223. This five-month
period was an unusual one given the global COVID-19 pandemic and the resulting national
emergency declared in March 2020. That Dr. Saal had no in-person appointment with
Plaintiff during that unprecedented time does not call Dr. Saal’s medical opinion into
question.
Second, Defendant makes much of Dr. Norris’s recollection of his call with Dr. Saal.
See, e.g., Def. Br. at 31, 38-39; Def. Opp. at 14-15. Although Plaintiff does not outright argue
that this evidence is inadmissible, he does contend that its probative value is low. See Pl.
RSOF at 2 (“Dr. Norris’ account of this alleged conversation does not quote Dr. Saal directly,
and there is no way to surmise what, if anything, the treating physician actually said.
Furthermore, the sentiments attributed to Dr. Saal by Dr. Norris are contradicted by Dr. Saal’s
written statement opining unequivocally that [Plaintiff] remained incapable of performing his
27
occupational duties.” (citation omitted)); Pl. Opp. at 7-8 (“Absent any confirmation from Dr.
Saal, Dr. Norris’ vague, uncorroborated account of their alleged discussion should not be
credited.”). The Court agrees with Plaintiff that the probative value of Dr. Norris’s
recollection of his call with Dr. Saal is low and does not outweigh what Dr. Saal wrote in his
letter in support of Plaintiff’s appeal – let alone the other evidence presented by Plaintiff, such
as the medical opinion of Dr. Basuk. See, e.g., Alfano v. CIGNA Life Ins. Co. of N.Y., 07-cv09661 (GEL), 2009 WL 222351, at *19 (S.D.N.Y. Jan. 30, 2009) (assigning little weight to
file reviewer’s account of conversation with plaintiff’s treating physician, given that “the
accuracy and significance of this account are questionable”); Wein v. Prudential Ins. Co. of
Am., No. 03-cv-06526 (NGG), 2006 WL 2844176, at *14 (E.D.N.Y. Oct. 2, 2006) (plan
administrator’s “reli[ance] on an unsubstantiated hearsay conversation with [plaintiff’s
treating physician] to support its denial” was one fact that “demonstrate[d] a ‘cherry-picking’
of evidence in support of its determinations”). 5
Altogether, Defendant offers no sound reason for the Court to doubt the capabilities,
credibility, or integrity of any of Plaintiff’s treating physicians. The Court thus finds that this
factor favors Plaintiff’s treating physicians over Defendant’s file reviewers. See, e.g., Stratton
v. Life Ins. Co. of N. Am., 589 F. Supp. 3d 1145, 1175 (S.D. Cal. 2022) (“[T]he Court finds it
appropriate to accord significant weight to the evaluations and opinions of Dr. Brizzie, who
treated Plaintiff for a period of more than three years, from December 2016 through the LTD
appeal, and who repeatedly and consistently opined that the physical abnormalities indicated
5
Straehle v. INA Life Insurance Co. of New York, 392 F. Supp. 2d 448 (E.D.N.Y. 2005),
relied upon by Defendant, see Def. Opp. at 15-16, is distinguishable. In Straehle, the medical
opinions of the treating physician “were at least in part contradictory and changed
significantly over time with no apparent explanation,” and they were “inconsistent with the
diagnoses of the many specialists [whom the plaintiff] consulted.” 392 F. Supp. 2d at 459.
That is not the case here.
28
in Plaintiff’s MRI and x-rays were consistent with her subjective complaints of pain.”);
Thoma v. Fox Long Term Disability Plan, No. 17-cv-04389 (RWS), 2018 WL 6514757, at
*28 (S.D.N.Y. Dec. 11, 2018) (on de novo review, finding it significant that “[b]oth of [the
plaintiff’s] principal treating physicians have stated that [the plaintiff] is disabled from any
regular employment,” and that “[t]hese physicians found [the plaintiff’s] complaints to be
entirely credible and consistent with her lengthy medical history”); Bigham v. Liberty Life
Assurance Co. of Bos., 148 F. Supp. 3d 1159, 1167 (W.D. Wash. 2015) (“Here, Ms. Bigham’s
doctors did provide their medical opinions that her condition prevented her from performing
her occupation. Furthermore, subjective symptoms have been found in previous cases to be
valuable evidence for a disability claim. . . . [I]t is clear that Ms. Bigham’s symptoms prevent
her from doing her job. Liberty Life provides no credible reason to disbelieve the reports of
Ms. Bigham or her medical providers regarding her symptoms and their disabling
consequences.” (citations omitted)); Rao v. Life Ins. Co. of N. Am., 100 F. Supp. 3d 210, 221
(N.D.N.Y. 2015) (plan administrator may not “arbitrarily ignore credible medical evidence
simply because it comes from a claimant’s treating source”); Green v. Hartford Life &
Accident Ins. Co., No. 07-cv-01253, 2010 WL 3907823, at *7 (N.D.N.Y. Sept. 30, 2010)
(“Defendant has offered no evidence or argument that puts Plaintiff’s credibility in doubt,
choosing instead to focus on the lack of objective evidence. Likewise, the Court’s own
review of the record reveals nothing that would cause the Court to doubt Plaintiff or her
physicians. Therefore, the Court concludes that . . . Plaintiff’s complaints and statements
about her abilities and her condition, including her subjective claims, are credible and that her
treating physicians’ opinions support such claims.” (footnote omitted)).
Additionally, Plaintiff’s treating physicians’ areas of expertise are more relevant – and
thus their views are more persuasive – than those of Defendant’s file reviewers. See Connors,
29
272 F.3d at 135. As noted above, Dr. Basuk is a gastroenterologist, Dr. Gunther is a
neurologist and psychiatrist, Dr. Saal is a nephrologist, and Dr. Lachmann is a specialist in
physical medicine and rehabilitation. In comparison, Dr. Leverett practices family medicine,
Dr. Lewis specializes in physical medicine and rehabilitation, Dr. Brown is a psychiatrist, and
Dr. Norris practices family, occupational, and aerospace medicine. Although there is some
overlap between the two groups in terms of their areas of expertise, the Court finds it
noteworthy that two of Plaintiff’s treating physicians (Dr. Basuk and Dr. Saal) specialize in
abdominal health – a particularly relevant field in assessing the long-term effects of a
colectomy after which a plaintiff reports frequent and severe bouts of nausea and vomiting –
whereas the same cannot be said of any of Defendant’s in-house file reviewers. Hence, the
Court finds Dr. Basuk and Dr. Saal’s views particularly compelling. See, e.g., Gary v. Unum
Life Ins. Co. of Am., 831 F. App’x 812, 814 (9th Cir. 2020) (“[Defendant] also only hired
consultants specializing in orthopedic surgery, family medicine, and psychology to assess
[Plaintiff’s] claim – not an [Ehlers-Danlos Syndrome] specialist.” (emphasis omitted)); Tam v.
First Unum Life Ins. Co., 491 F. Supp. 3d 698, 709 (C.D. Cal. 2020) (“Unum erred in relying
on the opinions of five doctors who did not examine plaintiff and had no experience or a
specialization in the [relevant medical areas] over the opinions of the doctors who examined
plaintiff.”); Gellerman v. Jefferson Pilot Fin. Ins. Co., 376 F. Supp. 2d 724, 735 (S.D. Tex.
2005) (“While an administrator need not employ specialist physicians to review claims, the
level of deference due [to] nurses should generally be less than that extended to doctors whose
professions concentrate in the relevant field.” (citation omitted)).
Further, the opinions of Plaintiff’s treating physicians are more “compatib[le] . . . with
the other evidence” in the record. Connors, 272 F.3d at 135. The Court finds credible, and
accepts, Plaintiff’s representations that he continues to experience nausea on a near-daily
30
basis, that he vomits multiple times a week (including occasional episodes of acute vomiting),
that he is incapable of standing and walking for significant periods of time, and that these and
other physical ailments impair his ability to concentrate. See, e.g., PSOF ¶¶ 26-28. Such facts
strongly support the conclusion of Plaintiff’s treating physicians that Plaintiff is “limited from
performing the material and substantial duties of [his] regular occupation due to [his] sickness
or injury.” Admin. R. at 1:189 (emphasis omitted).
The Court finds unpersuasive Defendant’s in-house file reviewers’ conclusions to the
contrary. Many of the facts that file reviewers such as Dr. Leverett highlighted – including
“walking to the pharmacy or the local park,” “watching his son play baseball,” “running
errands up to 3-4 times a week,” and maintaining a “garden” of about 10 potted plants on the
patio with his wife and daughter’s help, id. at 5:117, 5:165 – do not meaningfully correlate
with the relevant requirements of Plaintiff’s vocation. Simply put, the Court does not believe
that Plaintiff’s efforts to participate in rudimentary activities establish his ability to serve as an
“Operations Director.” See, e.g., Khan v. Provident Life & Accident Ins. Co., 386 F. Supp. 3d
251, 271 (W.D.N.Y. 2019) (“Dr. Paty in particular cited Plaintiff’s ability to read, use the
computer, do occasional household chores, and grocery shop. There is, quite obviously,
nothing inherent in these activities that proves Plaintiff has the ability to perform the
exertional and cognitive demands of a hospital neurologist, much less to do so eight hours a
day, five days a week, or, during the periods when he was ‘on call,’ to be able to do them
twenty-four hours a day, seven days a week, if necessary.”); Lyttle v. United of Omaha Life
Ins. Co., 341 F. Supp. 3d 1071, 1085 (N.D. Cal. 2018) (“That [Plaintiff] and his wife were in
some capacity assisting their parents and that he continued to do small home improvement
tasks and manage his investments (to some unknown capacity) does not mean that he could
perform the demanding functions of a VP of Chemistry with reasonable continuity.”
31
(emphasis omitted)); Young v. United of Omaha Life Ins. Co., 165 F. Supp. 3d 984, 990 (E.D.
Wash. 2016) (“Plaintiff’s ability to walk for 30 minutes with her dog does not contradict her
claim of inability to work full-time as a Database Systems Engineer.” (further hyphen
omitted)); Mead v. ReliaStar Life Ins. Co., 755 F. Supp. 2d 515, 534 (D. Vt. 2010) (“The
appeal committee cited the evidence that Mead takes little or no pain medication, is active,
can knit and crochet, and has not demonstrated to her doctors overt signs that she is in pain.
The problem with this evidence is that it doesn’t challenge the conclusion that Mead
experiences severe pain when performing the functions of a full-time sedentary job. Her level
of physical activity has little to do with the essential duties of a sedentary occupation.”);
Perryman v. Provident Life & Accident Ins. Co., 690 F. Supp. 2d 917, 949 (D. Ariz. 2010)
(“Perryman’s ability to perform limited and sporadic activities of daily living are consistent
with CFS and do not establish that Perryman can perform sedentary work on a sustained
basis.”).
*
*
*
In sum, the Court concludes that Plaintiff is “limited from performing the material and
substantial duties of [his] regular occupation due to [his] sickness or injury,” namely, his
continuing issues with debilitating nausea, pain, and concentration. Admin. R. at 1:189
(emphasis omitted). And it is uncontested that Plaintiff has experienced “a 20% or more loss
in [his] indexed monthly earnings due to the same sickness or injury.” Id. (emphasis omitted).
Plaintiff is therefore entitled to a reinstatement of the LTD Plan benefits that he should have
received between the termination of Plaintiff’s coverage on March 3, 2020, and the conclusion
of the first 24 months of payments under the LTD Plan.
Plaintiff’s potential entitlement to coverage under the LTD Plan after that 24-month
period, however, requires further development and consideration. As Plaintiff correctly notes,
32
the definition of “disabled” stated in the previous paragraph was the “definition in effect when
LTD benefits were terminated.” Pl. Br. at 14. But that definition applies only for the first 24
months of payment; after that point, someone is “disabled” under the LTD Plan “when Unum
determines that due to the same sickness or injury, [the individual is] unable to perform the
duties of any gainful occupation for which [the individual is] reasonably fitted by education,
training or experience.” Admin. R. at 1:189. Indeed, Defendant represents that it “has not
had occasion to comment on or evaluate Plaintiff’s claim under the context of ‘any gainful
occupation’ as Plaintiff did not establish proof of disability for the 24-month ‘regular
occupation’ period.” Def. Reply at 2 n.1.
Given the present state of the record, the Court concludes that, with respect to
Plaintiff’s LTD Plan benefits postdating the initial 24-month period, this case should be
remanded to Defendant to promptly decide the issue in the first instance, after which a court
may (if necessary) review that decision under the applicable standard of review. See, e.g.,
Santorelli v. Hartford Life & Accident Ins. Co., 624 F. Supp. 3d 143, 149 (D. Conn. 2022)
(remanding “for the limited review of whether working in an office is an ‘essential duty’ of
[the plaintiff’s] occupation” because of “how sparse the record [wa]s” on this point); Easter v.
Cayuga Med. Ctr. at Ithaca Prepaid Health Plan, 217 F. Supp. 3d 608, 634 (N.D.N.Y. 2016)
(remanding where there was “insufficient information in the administrative record upon which
to determine whether [the] [p]laintiffs are entitled to benefits”); cf. Zervos v. Verizon N.Y.,
Inc., 277 F.3d 635, 648 (2d Cir. 2002) (“[R]emand of an ERISA action seeking benefits is
inappropriate where the difficulty is not that the administrative record was incomplete but that
a denial of benefits based on the record was unreasonable.” (quotation marks and citation
omitted)).
33
III.
The Life Plan
A. Standard of Review
The parties agree that “[t]he Life Plan gives Unum ‘discretionary authority to make
benefit determinations’ under the terms of the Life [Plan].” Def. RSOF ¶ 6 (quoting Admin.
R. at 11:43). Thus, the deferential standard of ERISA review applies. “Applying a deferential
standard of review does not mean that the plan administrator will prevail on the merits. It
means only that the plan administrator’s interpretation of the plan ‘will not be disturbed if
reasonable.’” Conkright v. Frommert, 559 U.S. 506, 521 (2010) (quoting Firestone, 489 U.S.
at 111). Under this standard, “a court may overturn a plan administrator’s decision only if the
decision was without reason, unsupported by substantial evidence, or erroneous as a matter of
law.” Novella v. Westchester County, 661 F.3d 128, 140 (2d Cir. 2011) (brackets, ellipsis, and
citation omitted).
B. Benefits Determination
The sole reason given by Defendant for discontinuing Plaintiff’s premium waiver
under the Life Plan was that Defendant’s “Long Term Disability department ha[d] determined
[that Plaintiff was] not precluded from performing [his] own occupational demands.” Admin.
R. at 12:195. As the Court just explained, however, Defendant’s determination regarding
Plaintiff’s LTD benefits was erroneous. Defendant’s justification for its discontinuation of
Plaintiff’s premium waiver is thus literally “without reason” and therefore subject to the
Court’s reversal. Novella, 661 F.3d at 140 (citation omitted); see, e.g., Delprado v. Sedgwick
Claims Mgmt. Servs., Inc., No. 12-cv-00673, 2015 WL 1780883, at *37 (N.D.N.Y. Apr. 20,
2015) (“Since the decision that Plaintiff was not disabled under her second STD claim for
fibromyalgia was arbitrary and capricious, the decision to deny her contingent LTD claim was
also unreasonable.”).
34
Plaintiff is therefore entitled to a reinstatement of the premium waiver for the Life
Plan that he should have received between the termination of Plaintiff’s coverage on March 3,
2020, and the conclusion of the first 24 months of payments under the LTD Plan (as well as
thereafter if Defendant determines on remand that Plaintiff qualifies as “disabled” under the
definition that applies after the initial 24-month period).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the administrative record
is GRANTED and Defendant’s motion for judgment on the administrative record is
DENIED. Judgment will therefore be entered in favor of Plaintiff to the extent stated in this
opinion; the case will otherwise be remanded to the Defendant. Within seven (7) days of this
order and opinion, Plaintiff shall submit a proposed judgment. Within twenty-eight (28) days
of this order and opinion, Plaintiff may file a motion for attorney’s fees and costs under 29
U.S.C. § 1132(g). The Clerk of Court is respectfully directed to terminate the motions at ECF
Nos. 35 and 36.
Dated: March 26, 2024
New York, New York
SO ORDERED.
JENNIFER L. ROCHON
United States District Judge
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