Khan v. Provident Life and Accident Insurance Company

Filing 53

DECISION AND ORDER adopting in part Report and Recommendations re 33 Report and Recommendations; denying 23 Defendant's Motion for Judgment on Administrative Record; granting 25 Plaintiff's Motion for Summary Judgment/Alternative Motion for Judgment on Administrative Record. Signed by Hon. Michael A. Telesca on 5/3/19. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

FAROOQ KHAN, M.D.,
Plaintiff,
DECISION AND ORDER
No. 1:15-cv-00811(MAT)(LGF)

-vsPROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.

I.

Introduction
Farooq

Khan,

M.D.

(“Plaintiff”),

represented

by

counsel,

commenced this action pursuant to the Employee Retirement Income
Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”), asserting a
claim for declaratory relief requiring Provident Life and Accident
Insurance

Company

(“Defendant”)

to

pay

long-term

disability

benefits to him under the terms of an employer-sponsored individual
disability insurance policy (“the Disability Policy”). The case
comes before the Court upon the Report and Recommendation (“the
R&R”) (Docket No. 33) of United States Magistrate Judge Leslie G.
Foschio, issued May 2, 2017, regarding Defendant’s Motion for
Judgment

on

the

Administrative

Record

(Docket

No.

23)

and

Plaintiff’s Motion for Summary Judgment/Alternative Motion for
Judgment Pursuant to Fed. R. Civ. P. 52 (Docket No. 25, superseding
Docket No. 23). The R&R recommended that both motions be denied and

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that the matter be scheduled for a plenary bench trial before the
assigned district judge. See R&R at 3, 57.
The case was transferred to the undersigned on October 24,
2018 (Docket No. 49). On April 5, 2019, the Court issued an Order
(Docket No. 51) finding that the parties had effectively stipulated
to having this Court conduct a bench trial based solely on their
submissions, in which the Court would make explicit findings of
fact and conclusions of law. See Order at 2 (citing O’Hara v. Nat’l
Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir.
2011)). The parties were directed to notify the Court in writing
confirming that they consented to the Court proceeding as outlined
in O’Hara. Id. at 3-4. The Court timely received both parties’
consent. See Text Order (Docket No. 52).
For the reasons discussed below, the Court rejects in part and
accepts in part the R&R; grants Plaintiff’s Motion for Summary
Judgment/Alternative Motion for Judgment Pursuant to Fed. R. Civ.
P. 52; denies Defendant’s Motion for Judgment on the Administrative
Record; and awards long-term benefits to Plaintiff under the “Your
Occupation” and “Any Occupation” provisions of the Disability
Policy.
FED. R. CIV. P. 52
“In an action tried on the facts without a jury . . . , the
court must find the facts specially and state its conclusions of
law separately.” Fed. R. Civ. P. 52(a)(1). These factual findings

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and conclusions “may appear in an opinion or a memorandum of
decision filed by the court.” Id. A district court’s “[f]indings of
fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must give
due regard to the . . . court’s opportunity to judge the witnesses’
credibility.” Fed. R. Civ. P. 52(a)(6). “[C]onclusions of law and
mixed questions,” on the other hand, “are reviewed de novo.”
Connors v. Connecticut Gen. Life Ins. Co., 272 F.3d 127, 135 (2d
Cir. 2001) (citing LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d
Cir. 1997)).
FINDINGS OF FACT
The following section constitutes the Court’s findings of
fact, pursuant to Fed. R. Civ. P. 52(a)(1). The findings of fact
are drawn from the Administrative Record.1 “To the extent that any
finding of fact reflects a legal conclusion, it shall to that
extent be deemed a conclusion of law, and vice versa.” Barbu v.
Life Ins. Co. of N. Am., 35 F. Supp.3d 274, 280 (E.D.N.Y. 2014).
I.

Plaintiff’s Medical History
Plaintiff is a board-certified neurologist with a number of

medical issues dating back to at least 2005. Because Plaintiff

1
The Administrative Record is contained on a compact disc which was
filed under seal at Docket No. 22 on July 27, 2016. The Administrative Record
consists of six PDF files which contains a unique Bates number identifier.
Specific portions of the Administrative Record are cited to and identified by
the Bates identifiers located in the bottom right-hand corner of each page
within the PDF files. See also Defendant’s Memorandum of Law (Docket No. 23-2)
at 2 n. 2 (explaining Bates identifiers used).

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continued to submit additional medical evidence during his appeal,
the records cover a period extending into mid-2014. During that
time, Plaintiff was examined in person and treated by at least
twelve physicians, seven of whom were specialists in rheumatology:
Drs. Frank Lipson, Yan Liu, Simon Carette, Larry Moreland, Ernesto
Levy, Joseph Grisanti, and John Stone. No treating provider whose
records are contained in the Administrative Record concluded that
Plaintiff was capable of continuing to work as a neurologist.
A.

2005 Records

On January 17, 2005, Plaintiff saw nephrologist Dr. George Wu
for symptoms of proteinuria. He had “significant general fatigue”
and right knee arthralgia without inflammation. Dr. Wu requested
repeat serology regarding Plaintiff’s renal function and complement
levels. PLA-CL-IDI-000700.
Plaintiff underwent a whole body bone scan on August 24, 2005,
at the request of rheumatologist Dr. Frank Lipson. There are a few
handwritten treatment notes from Dr. Lipson in the record, but they
are very difficult to read. The radiologist saw “unusual” bone
uptake about the proximal tibiae and increased tracer accumulation
in multiple small and large joints, which was “striking and may
reflect a polyarthropathy.” PLA-CL-IDI-000476. An MRI was advised
but apparently never performed.
Plaintiff returned to see Dr. Wu on August 26, 2005, regarding
his proteinuria. Dr. Wu noted Plaintiff’s history of arthralgia in

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the knee area. Though the bone scan performed several days before
showed increased bone uptake at the tibial-fibular junction, there
was no definitive diagnosis of a rheumatological issue. Dr. Wu
ordered a battery of renal tests. PLA-CL-IDI-000691-692.
B.

2006 Records

At a February 8, 2006 visit with Dr. Wu, Plaintiff complained
of arthralgia, particularly in the right knee. Plaintiff had no
active joints or effusions. PLA-CL-IDI-000683-684. Dr. Wu requested
additional testing in regard to Plaintiff’s proteinuria. Id.
On October 16, 2006, Plaintiff followed up with Dr. Wu for his
proteinuria. PLA-CL-IDI-000678-679. Dr. Wu reported that in the
last

year,

Plaintiff

had

had

symptoms

of

fatigue,

malaise,

paresthesia and polyarthralgia. That day, Plaintiff had a red left
eye, as his scleritis was active. Dr. Wu noted that scleritis can
be associated with Wegener’s granulomatosis, polyarteritis nodosa,
collagen

vascular

disease

such

as

rheumatoid

arthritis,

and

granulomatous disease such as sarcoidosis. Dr. Wu requested repeat
serological testing.
A total body bone scan with spectrometry was performed on
November 24, 2006, at rheumatologist Dr. Lipson’s request. The
radiologist reported mild focal uptake in both knees in keeping
with arthropathy and “[a]ctivity also in keeping with arthritic
change noted in both sternoclavicular joints and small joints of
both hands and feet.” PLA-CL-IDI-000473. There was no definitive

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diagnostic impression. Dr. Lipson ordered certain lab work done in
2005, which revealed that Plaintiff’s anti-nuclear antibodies and
rheumatoid factor were negative.
C.

2007 Records

In a follow-up with nephrologist Dr. Wu on April 30, 2007,
Plaintiff reported that he “feels fatigued,” has “occasional pain
at the tibial-fibular joint,” and was experiencing paresthesia.
PLA-CL-IDI-000674. Dr. Wu noted some muscle-wasting distally. He
urged Plaintiff to obtain a nerve conduction study and asked him to
repeat the renal function and serological tests. Id.
Plaintiff was referred to rheumatologist Dr. Yan Liu

by his

former primary care physician Dr. Antoun A.M. Toma.2 In a letter
dated August 16, 2007, to Dr. Toma, Dr. Liu recounted that since
last year Plaintiff had been developing increasing polyarticular
pain involving small and large joints with some morning stiffness.
Dr.

Liu

noted

the

abnormal

repeat

bone

scan

findings

of

multi-articular uptake in small and large joints. Dr. Liu observed
that although the negative rheumatoid factor and benign joint exam
“goes against rheumatoid arthritis that can manifest as scleritis,”
he “certainly would keep it within the differential diagnosis.”
PLA-CL-IDI-000669-670.

2

There are a few illegible handwritten notes from Dr. Toma in the record.
A letter from Dr. Toma indicates he terminated Plaintiff as a patient on December
4, 2008, due to Plaintiff’s “total disagreements with the receptionist as well
as the doctor.” PLI-CL-IDI-000648.

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On November 26, 2007, Plaintiff was seen in follow-up by Dr.
Liu

for

“small

vessel

vasculitis

(possibly

Wegener’s

[granulomatosis])[,]” the manifestations of which have included red
cell casts, scleritis and joint pain. PLA-CL-IDI-000661. Dr. Liu
noted that Plaintiff’s
D.

repeat serology was unremarkable. Id.

2008 Records

Plaintiff saw nephrologist Dr. Wu on January 18, 2008, in
follow-up, for diagnoses of proteinuria and possible microscopic
polyangiitis. He did have some occasional elbow pain and right
patellar discomfort. Dr. Wu observed “no overt inflammation” and
“no active joints.” PLA-CL-IDI-000651.
On October 5, 2006, a handwritten note from opthamologist Dr.
Calvin Breslin indicates that he saw Plaintiff for his left eye
episcleritis with limbic keratitis. Dr. Breslin prescribed 60 mg of
prednisone

which

should

eventually

be

tapered

to

40

mg.

PLA-CL-IDI-000512.
E.

2009 Records

Plaintiff saw rheumatologist Simon Carette, M.D. on March 18,
2009, for assessment of possible vasculitis. PLA-CL-IDI-0010291031. Dr. Carette noted that for the past 6 months, Plaintiff had
had progressive left sub-costal fullness, progressive anorexia,
decreased energy, and progressive burning sensations in the hands
and feet bilaterally, and enthesitis of the right Achille’s tendon,
all

of

which

improved

significantly

-7-

with

prednisone.

On

examination, Plaintiff had diffuse erythema of left cornea with
significant thinning, no tender or effused joints, and unremarkable
neurological

findings.

Plaintiff’s

scleritis

was

noted

to

be

severe, and Dr. Carette determined that an emergency consult with
opthamologist Dr. Breslin was indicated. Dr. Carette found it
“quite difficult to provide a unifying diagnosis” and accordingly
requested more bloodwork.
Plaintiff saw Dr. Breslin again on March 19, 2009, at Dr.
Carette’s request, for Plaintiff’s “active scleritis with corneal
thinning of left eye” and inability to taper his prednisone dosage
(10 mg) any further. PLA-CL-IDI-000514. Dr. Breslin indicated that
Plaintiff should increase the prednisone to 60 mg daily and add an
immunosuppressant, Imuran (azothioprine); once the eye was clear,
he could taper off the prednisone. PLA-CL-IDI-000515.
Plaintiff returned to see Dr. Wu on March 20, 2009, who, as
far as a renal diagnosis, wrote “[q]uery microscopic polyanginitis
or Wegener’s granulamatosis.” Dr. Wu noted that when Plaintiff was
on

prednisone,

his

scleritis

and

polyarthralgia

“improved

significantly.” PLA-CL-IDI-0005. However, he was still awaiting Dr.
Carette’s assessment as to further treatment.
F.

2010-2011 Records

There are no office visit notes or other medical records from
these years in the Administrative Record. Although Plaintiff did
see rheumatologist Dr. Larry Moreland on May 20, 2011, this note is

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not contained in the Administrative Record.
G.

2012 Records

Plaintiff saw his new primary care physician, Todd Orszulak,
D.O., on May 2, 2012, and June 13, 2012, and review of systems was
negative for fatigue. PLA-CL-IDI-001313-1317. On September 17,
2012, Dr. Orszulak’s review of systems was positive for fatigue.
PLA-CL-IDI-001321-1323.
H.

2013 Records

On January 24, 2013, Plaintiff saw Dr. Orszulak. Review of his
musculoskeletal system was negative for joint pain or muscle pain.
PLA-CL-IDI-000279. On March 27, 2013, Plaintiff returned to see Dr.
Orszulak for “[w]orsening fatigue” in regards to his “possible
‘Polychrondritis.’”

He

was

taking

prednisone

for

left

eye

episcleritis diagnosed in 2006 by Dr. Breslin, but it was not
helping the fatigue or arthritis.

PLA-CL-IDI-000285. Dr. Orszulak

noted that Plaintiff was “++ for fatigue.”

PLA-CL-IDI-000286.

Plaintiff underwent a rheumatology evaluation by Dr. Ernesto
Levy, M.D. at Invision Health Brain and Spine Center on April 30,
2013. PLA-CL-IDI-001295-1298. Dr. Levy noted that
[o]ver the last several years [Plaintiff] experienced
progressive symptoms such as fatigability to the extreme
that he would feel dizzy and close to collapse if off
prednisone. He . . . would become very sick if his
prednisone was lowered and extremely sick if completely
tapered down. . . . [T]he current dose is prednisone 10
mg p.o. daily. In lowering this dose [Plaintiff] would
experience dizziness, lightheartedness, a sensation of
heaviness in his head, excruciating ioint pain with
involvement of MCP and PIP joints as well as knee joints
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and metatarsophalangeal joints. He would also have
worsening eye symptoms with reddening, photophobia, and
he states an overall a relapse of his scleritis. In
addition there would be low beck pain, end muscle spasms
at diverse locations.
PLA-CL-IDI-001295. Dr. Levy observed that “[a]s of now, his illness
remains undiagnosed[,]” but “[s]ome of the described features would
have

the

prints

of

an

inflammatory

rheumatologic

condition

(scleritis, abnormal urine); however some other features are less
specific (fatigue, dizziness).” PLA-CL-IDI-1296. Dr. Levy’s “review
of systems” was “[r]emarkable for extreme fatigue, headaches, and
dizziness to the point that the patient would collapse; at times
even holding himself to a fixed object so not to fall. He has
experienced ear tinging, excessive thirst, and anxiety. He has also
experienced swelling of his feet. Most symptoms exacerbate or are
only evident when he is off prednisone. Moderate joint pain and
important fatigability still occur at a dose of prednisone 10 mg
p.o. daily.” Id. On examination, there was no formal synovitis, and
all joints had full range of motion. PLA-CL-IDI-001296. “Palpation
of joints [did] not cause pain,” Dr. Levy stated, “though the
patient feels some degree of arthralgia at all times.” Id. Dr. Levy
described Plaintiff’s case as “high-complexity . . . as no dear
localizing

manifestation

exists[;]

“[t]he

more

compelling

manifestations include arthralgia, fatigability (at some times
extreme),

scleritis

(well

documented),

and

intolerance

to

a

prednisone taper.” PLA-CL-IDI-001297. Dr. Levy recommended a new

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baseline blood work-up and introduction of a steroid-sparing agent
(e.g., Imuran) and a slow taper of prednisone under the guidance of
an endocrinologist in order to learn more about the disease.
Plaintiff saw rheumatologist Dr. Moreland on May 3, 2013, PLACL-IDI-000399-403, who noted that he had last seen Plaintiff on May
20, 2011.3 Plaintiff had brought long-term disability papers to
discuss with Dr. Moreland. PLA-CL-IDI-000403. Under current medical
problems, Dr. Moreland noted, inter alia, relapsing polychondritis;
history of intermittent pain and swelling of ears and nose; history
of scleritis; polyarthritis, nonspecific; and severe fatigue. PLACL-IDI-000399. Under interval history, Plaintiff reported to Dr.
Moreland that he had moved from Pennsylvania to Niagara Falls to be
closer to his family as he was “having continued problems with
functioning and working” as a neurologist in Buffalo. “Fatigue
continues

to

be

a

big

issue,”

and

he

continued

to

have

“intermittent pain.” Plaintiff informed Dr. Moreland that he “would
like to quit work because he is not able to continue to keep up
with

the

pace.”

PLA-CL-IDI-000399.

On

review

of

Plaintiff’s

musculoskeletal system, Dr. Moreland noted “[g]ood range of motion
of all joints” and “[n]o active synovitis.” id. Plaintiff’s head,
ears, nose, and throat were normal with “no obvious pain or

3

That office visit note was not provided by Dr. Moreland in response to
Defendant’s records request, likely because Defendant, in processing Plaintiff’s
disability claim, only sought records from January 1, 2013, until the present.
Plaintiff has represented to the Court that he will obtain the treatment note if
it is required.

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inflammation

of

external

parts

of

ears.”

Id.

Dr.

Moreland

“recommend[ed] that [Plaintiff] stop work completely based on his
current

medical

problems,”

and

said

he

would

complete

the

disability paperwork accordingly. Id. There were no changes to
Plaintiff’s medications.
On May 30, 2013, Plaintiff saw primary care physician Dr.
Orszulak for his annual visit. PLA-CL-IDI-000281. On examination of
Plaintiff’s musculoskeletal system, Dr. Orszulak noted normal range
of

motion

of

all

joints,

no

effusions,

and

no

swelling

or

deformity. Id. As far as subjective complaints, Plaintiff denied
joint pain, joint swelling, morning stiffness, or muscle pain, but
he was having fatigue. PLA-CL-IDI-000282.
Dr. Mallika Rajarathna, whose speciality is unclear but who
appears to have been a primary care provider, saw Plaintiff on
August 21, 2013, and September 4, 2013. Her notes are hand-written
and very difficult to read. Dr. Rajarathna lists Plaintiff’s
diagnosis as “? Relapsing polychondritis” on one note and as
“relapsing

polychondritis—stable”

on

another

note.

PLA-CL-IDI-000638. Dr. Rajarathna noted that Plaintiff “plans to
get disability.”
On September 13, 2013, Plaintiff returned to see Dr. Moreland
in Pittsburgh and reported he was “about the same” as in May of
that year. On examination, Plaintiff had “[s]light tenderness of
the left earlobe” without significant redness; his nasal cavities

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appeared normal. With regard to his musculoskeletal system, Dr.
Moreland noted “[n]o active synovitis.” PLA-CL-IDI-000409. Dr.
Moreland noted that Plaintiff was “currently maintained on low dose
prednisone” and advised him to return in 6 months. Id.
I.

2014 Records

Plaintiff consulted with two new rheumatologists in 2014,
after he filed his disability claim: Dr. Joseph M. Grisanti and Dr.
John H. Stone. Both agreed that he was totally disabled. Their
evaluations and reports are discussed in more detail in Section
V.A, infra.
II.

The Issuance of the Disability Policy
On October 24, 2011, Plaintiff obtained a position as a

neurologist at Mount St. Mary’s Hospital (“the Hospital”) in
Lewiston, New York. The Hospital is now known as Ascension Health.
In connection with his employment application, Plaintiff was asked
to complete a medical history questionnaire, essentially a “checkthe-box” form, and undergo an examination (which was “[n]ormal”).
PLA-CL-IDI-000967-973. Plaintiff checked the boxes indicating that
he had high blood pressure, arthritis, and diabetes mellitus, and
that he had “pain in muscles, joints, stiffness, bursitis, gout –
for year [sic].”

There does not appear to be a box or space on the

form where the applicant was asked if had medical conditions or
diagnoses other than those listed.
On

June

15,

2012,

Plaintiff

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applied

for

an

individual

disability benefit policy through Ascension Health from Defendant.
Defendant issued Disability Income Policy No. 06-6297809 (“the
Disability

Policy”)

with

an

effective

date of

July

1, 2012.

PLA-AP(6297809)-000001. The Disability Policy is governed by ERISA
and provides for a basic monthly disability benefit of $6,249 for
an insured under age 64 when the relevant disability occurs, until
the insured reaches age 67. Id. Terms of the Policy relevant to the
present case include the following definitions:
Disability or Disabled means that You [i.e., the insured]
are Totally Disabled. Disability must start while this
Policy is in force. A Disability begins with an
Elimination Period and has a Maximum Benefit Period
applied to it.
PLA-AP(6297809)-000020 (boldface in original).
Total Disability or Totally Disabled, for the first 12
months of benefit payments during a Disability, means
that because of Injury or Sickness:
1.
2.

You are not able to perform the material and
substantial duties of Your Occupation; and
You are receiving Physician’s Care. We [i.e., the
insurer] will waive this requirement if We receive
written proof acceptable to Us that further
Physician’s Care would be of no benefit to You.

After Total Disability benefits have been payable for 12
months during a Disability, then Total Disability means
that because of Injury or Sickness:
1.
2.
3.

You are not able to perform the material and
substantial duties of Your Occupation; and
You are not able to perform the material and
substantial duties of Any Occupation; and
You are receiving Physician’s Care. We will waive
this requirement if we receive written proof
acceptable to Us that further Physician’s Care
would be of no benefit to You.

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PLA-AP(6297809)-000022 (boldface in original).
Sickness means sickness or disease that first manifests
itself after the Effective Date and while [the] Policy is
in force. . . .
PLA-AP(6297809)-000021 (boldface in original).
Your Occupation means the occupation or occupations in
which You are regularly engaged at the time You become
Disabled.
PLA-AP(6297809)-000022 (boldface in original).
Any Occupation means Any Occupation for Which You are
reasonably fitted based on education, training or
experience.
PLA-AP(6297809)-000020 (boldface in original).
As far as the proof required for establishing entitlement to
benefits, the Policy provides as follows:
Written Proof of Loss
Written proof of loss must be sent to Us within 90 days
after each monthly period for which You are claiming
benefits. . . .
We can require any proof that We consider necessary to
consider
Your
claim.
This
may
include
medical
information, personal and business tax returns filed with
the Internal Revenue Service, financial statements,
accountant’s statements or other proof acceptable to Us.
Examinations
At Our Expense, we can require that You undergo a medical
examination, functional capacity examination, psychiatric
examination, and/or psychological examination including
any related tests as are reasonably necessary to the
performance of the examination by a Physician or
specialist appropriate for Your condition at such time
and place and as frequently as We may reasonably require.
We reserve the right to select the examiner. . . .
PLA-AP(6297809)-000027 (boldface in original).

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A rider to the Policy provides that “Disability or Disabled .
.

.

is amended

to

include

Residual

Disability

or Residually

Disabled.” PLA-POL(6297809)-IDI-000028. The rider states that
Residual Disability or Residually Disabled means that You
are not Totally Disabled, but due to Injury or Sickness:
l. You are not able to perform one or more of the
material and substantial duties of Your Occupation; or
You are not able to perform them for as long as normally
required to perform them; and
2. You are receiving Physician’s Care. We will waive this
requirement if We receive written proof acceptable to Us
that further care would be of no benefit to You.
PLA-POL(6297809)-IDI-000030.
III. Plaintiff’s Cessation of Work and Application for Benefits
Under the Policy
Plaintiff’s last day of work at the Hospital was June 9,
2013.4 On June 10, 2013, Plaintiff applied for benefits under the
Disability

Policy,

stating

that

he

was

49 years-old

and

was

disabled based on relapsing polychondritis and polyarthralgias,
which were diagnosed by his treating rheumatologist, Dr. Moreland.5
A.

Information Provided by Plaintiff

In

support

(“Application”),

of

his

Plaintiff

disability
submitted

benefits
an

Attending

application
Physician

4

The Hospital terminated his contract of employment effective June 30, 2013,
because, according to Hospital representative Deborah Nichols, he was not meeting
the minium billing requirements or seeing a sufficient number of patients per
day. PLA-CL-IDI-000235.
5

The parties dispute when Dr. Moreland first diagnosed Plaintiff with
relapsing polychrondritis, i.e., before or after he was hired by the Hospital.
Resolution of this question is not material to Plaintiff’s claim under the
Disability Policy.

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Statement (“APS”) from Dr. Moreland, whom he had first seen on
September 4, 2009, and had most recently seen on May 3, 2013. See
PLA-CL-IDI-000028-29.

When

Restrictions,”

“activities

i.e.,

asked

to

list

patient

Plaintiff’s
should

not

“Current
do;”

and

“Current Limitations,” i.e., “activities patient cannot do,” Dr.
Moreland

stated,

“[s]evere

joint

pain,

fatigue,

recurrent

polychrondritis.” PLA-CL-IDI-000028. In response to the question on
the form regarding “[w]hat diagnostic or clinical findings support
[his] patient’s work restrictions and limitations[,]” Dr. Moreland
answered “[c]linical evaluation.” Id.
In a letter dated June 13, 2013, addressed to the Hospital,
Dr. Orszulak stated that Plaintiff “should stop work as of June 10,
2013, based on the advice of his Rheumatologist.” PLA-CL-IDI000887.
Defendant requested, by letters dated May 9, 2013; May 20,
2013; and June, 19, 2013, that Plaintiff complete and submit an
Individual Statement, Authorization, and Occupational Description.
PLA-CL-IDI-000033, 51, 55. In his Individual Statement, Plaintiff
indicated that the “[c]ondition [c]ausing [his] [d]isability” was
polychrondritis, the symptoms of which were “joint pain” and
fatigue,” that he first noticed the symptoms in 2006-07, and that
the date his “illness began” was 2006. PLA-CL-IDI-000109. When
asked which duties of his occupation he was able to perform and for
how long,

he

answered,

“limited

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due

to

fatigue,

joint

pain,

difficulty walking, standing.” PLA-CL-IDI-000110. When asked which
duties he was unable to perform, he referred to his “previous
answer.” Id.
On the Occupational Statement, Plaintiff indicated that his
“job title” was “physician (neurologist).” PLA-CL-IDI-000114. The
form asked him to “list and describe [his] occupational duties” and
indicate how many hours he spent on each duty each week. Id.
Plaintiff

listed only

one duty,

and

repeated

his

job

title,

stating, “Physician/Neurologist.” Id. Under description, he wrote,
“evaluate and treat patients in and out patient” which he spent 40
hours each week performing. Id. In the section of the form asking
for details about his exertional and postural activities during an
8-hour workday, Plaintiff checked boxes indicating that he was
required to sit, stand, walk, balance, and reach “frequently,”
defined as “34-66%” of the day; and he was required to climb,
bend/stoop, kneel, squat/crouch, crawl, use foot controls, twist,
carry, push/pull, and lift “occasionally,” defined as “1-33%” of
the day. PLA-CL-IDI-000115.
On July 18, 2013, Beth Robinson, Senior Disability Benefits
Specialist (“Benefits Specialist Robinson”), conducted the initial
phone interview with Plaintiff. PLA-CL-IDI-000168-172. Plaintiff
informed her that he has had disabling medical condition “since
2006 and it gradually progressed.” PLA-CL-IDI-000168. Plaintiff
explained that he is now on prednisone, which is “taking care of

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his eye and arthritis,” but his “fatigue keeps increasing.” The
pain

sometimes

hospital.”

“breaks

through”

and

he

“has

to

go

into

the

When he saw patients, he had “difficulty standing and

walking” and “avoided standing as much as he could” because “[i]t
felt like he had 1000 lbs on his legs and he would fall[,]” and the
prednisone “also made him dizzy.” PLA-CL-IDI-000169. When he saw a
patient, he would “immediately” look to see if there was a chair,
but if not, he “held onto the patient’s bed, since he did not trust
himself to stand for a long time.” Id.

Sometimes, if there was no

chair, he would pretend to lean over the bed. Id. That would help
him restrain himself. Plaintiff continued to work though the
fatigue and pain were still there; he only told a few people about
his condition because he was trying to survive in a competitive
medical market. PLA-CL-IDI-000171.
On October 20, 2013, Dr. Moreland submitted another APS as
requested by Defendant. Under the section on Functional Capacity,
Dr. Moreland indicated that on a day-to-day basis, Plaintiff could
sit, stand, walk, climb, twist/bend/stoop, reach above shoulder
level, and operate heavy machinery “[o]ccasionally,” which the form
defined

as

“1-33%”

of

the

time.

PLA-CL-IDI-000616.

He

could

occasionally lift up to 10 pounds, but he could never lift greater
than 10 pounds. Id. Dr. Moreland stated that Plaintiff was still
“unable to work” and that “no improvements” were expected in his
restrictions and limitations. Id.

-19-

B.

Defendant’s Vocational Consultant

Defendant’s

Senior

Vocational

Resource

Consultant,

David

Gaughan (“VRC Gaughan”), reviewed the file including Plaintiff’s
billing production reports, physician statements, occupational
description, and statement from his previous employer. In a report
issued August 29, 2013, VRC Gaughan stated that in his opinion,
Plaintiff’s billing production was low for the period of January 1,
2013,

to

June

9,

2013.

PLA-CL-IDI-000348.

Given

Plaintiff’s

reported specialty of neurology, billing production beyond that for
office/inpatient exams would be expected. Id. “Based on information
present in the file,” VRC Gaughan determined that “the demands of
this

occupation”

would

require

“light

exertion,”

defined

as

follows:
exerting up to 20 pounds of force occasionally, and/or up
to 10 pounds of force frequently, and/or a negligible
amount of force constantly. Physical demand requirements
are in excess of those for Sedentary Work. Even though
the weight lifted may be only a negligible amount, a job
should be rated Light Work: (1) when it requires walking
or standing to a significant degree; or (2) when it
requires sitting most of the time but entails pushing
and/or pulling of arm or leg controls; and/or (3) when
the job requires working at a production rate pace
entailing the constant pushing and/or pulling of
materials even though the weight of those materials is
negligible.
PLA-CL-IDI-000348 (quoting PAQ Services, Inc.’s Enhanced Dictionary
of Occupational Titles, data as of 8/29/13). Gaughan also listed
the “[c]ognitive considerations” entailed in Plaintiff’s job, which
included maintaining

attention

and concentration,

-20-

adhering

to

medical

protocols

judgments,

and

and

standards,

communicating

making

clearly

in

independent

medical

speech

written

and

language. Id.
C.

File Reviews by Defendant’s Medical Experts
1.

Dr. Norman H. Bress

Benefits Specialist Robinson subsequently requested a review
of Plaintiff’s Application from in-house medical consultant Norman
H.

Bress,

M.D.,

board-certified

in

internal

medicine

and

rheumatology. In her request, Benefits Specialist Robinson noted
that

the

“R[estrictions]

&

L[imitations]”

assessed

by

Dr.

Moreland—that Plaintiff was “[u]nable to work”—were “unclear and
further

review

will

Specialist Robinson

be

needed.”

PLA-CL-IDI-000539.

Benefits

requested that Dr. Bress answer the following

questions: “1. Are R&L’s supported as per Dr. Moreland? If so, when
did R&L’s begin? 2. What is the duration of the R&L’s? 3. When
should [medical record] be updated for review?” Id.
Dr. Bress issued his report on October 8, 2018. PLA-CL-IDI000539-543. After he “reviewed the entire medical file,” Dr. Bress
agreed that Plaintiff’s “physical findings (although minimal) are
consistent

with

a

diagnosis

of

RP

[i.e.,

relapsing

polychrondritis],” although he was “unable to locate results of a
cartilage biopsy to confirm the diagnosis.” Id. However, Dr. Bress
concluded, even “[i]f the insured has RP, it is [his] opinion that
it is mild or very well controlled and therefore does not support

-21-

restrictions or limitations for the following reasons:
1. minimal recent physical findings-slight tenderness
left ear lobe-no other findings to suggest the presence
of RP such as ear redness, atrophy of ears or nasal
cartilage
2. maintained only on low dose prednisone (10 mg
daily)-no need for immunosuppressives6
3. most recent ESR and CRP7 normal
4. follow up visit with Dr. Moreland in 6 months-more
frequent visits would have been indicated if RP was
active or severe[.]”
PLA-CL-IDI-000542. With regard to the other diagnosis listed on Dr.
Moreland’s

APS

(polyarthritis),

Dr.

Bress

observed

that

examinations and laboratory findings have revealed no abnormal
joint findings (e.g., no active joints or synovitis, negative
antinuclear

antibodies

and

rheumatoid

factor)

to

suggest

the

presence of a polyarthritis. Therefore, Dr. Bress opined, if a
polyarthritis is present, it is extremely mild and does not support
restrictions or limitations. Finally, none of Plaintiff’s co-morbid
conditions (hypertension, steroid induced diabetes, dyslipidemia,
scleritis in the left eye, polyneuropathy, vitamin D deficiency,
osteoarthritis, and osteopenia) were being claimed as impairing.
Taking into consideration all of Plaintiff’s conditions, both
individually and in totality, it was Dr. Bress’s opinion that

6

Contrary to this statement, several of Plaintiff’s treatment providers,
including Dr. Levy, recommended introduction of immunosuppressants. E.g., PLA-CLIDI-0001298.
7

However, as Dr. Bress admitted, the “erythrocyte sedimentation rate/ESR”
and “C-reactive protein/CRP” are “nonspecific blood test[s] for inflammation,
often elevated in active RP [relapsing polychrondritis].” PLA-CL-IDI-000541
(emphases supplied).

-22-

restrictions and limitations are not supported on a physical basis.
On October 15, 2013, Dr. Bress spoke with Dr. Moreland via
telephone and submitted an addendum to his report that same day,
PLA-CL-IDI-000562, summarizing the call as follows:
Dr. Moreland stated that exam findings and results of lab
tests are normal. In view of these findings, Dr. Moreland
stated that he is not supporting any restrictions or
limitations. Dr. Moreland mentioned that the insured
states that he is unable to work because of fatigue, but
there is nothing on exam and lab data to support this
claimed impairment. Dr. Moreland is in agreement with my
assessment as noted in my reviews. My opinion therefore
remains the same.
PLA-CL-IDI-000569. Also on October 20, 2013, Dr. Bress sent a
letter to Dr. Moreland, repeating the above summary, for purposes
of confirming the essence of their conversation. PLA-CL-IDI-000569570. Dr. Moreland returned a copy of Dr. Bress’ letter, on which he
included the following handwritten note:
As a Rheumatologist I see several patients with
autoimmune diseases who report fatigue as a major
problem. There is no blood test or approved questionnaire
that accurately measures fatigue. Most often patients
have normal lab (routine) and exams. So, although I have
not placed any restrictions on work for Dr. Khan, he
reports he cannot function with his current occupation.
So, I support his claim for disability.
PLA-CL-IDI-000612.
After reviewing this response, Dr. Bress’s opinion remained
“unchanged” because Dr. Moreland failed to provide “supporting
evidence[,]” “such as findings on exam that the insured appeared
fatigued or chronically ill, had difficulty with movements such as
rising onto and off the exam table, or other clinical findings.”
-23-

PLA-CL-IDI-000621-622.
Meanwhile, Dr. Bress attempted to schedule a peer phone call
with Plaintiff’s most recent primary care provider, Dr. Rajarathna,
but was unable to do so. Accordingly, he sent her several questions
to answer. In particular, she was asked to list any restrictions
(activities which Plaintiff should not perform) and limitations
(activities which he is unable to perform). Dr. Rajarathna sent a
letter on November 29, 2013, stating in pertinent part, that
Plaintiff’s

“mental

situation

is

greatly

affected

by

his

disability,” that he “says he doesn’t have any physical strength to
maintain any function,” and that he is “unable to maintain any
position in any length of time without pain. He did not find any
period of time that he is symptoms [sic] free.” PLA-CL-IDI-000756.
Dr. Rajarathna concluded by stating that she believed Plaintiff
would not be able to continue his career as a neurologist. Id.
Meanwhile, in a phone call with Benefits Specialist Robinson,
on November 8, 2013, Plaintiff’s attorney at the administrative
level, Michael Quiat, Esq. (“Attorney Quiat”) stated that “he spoke
with Dr. Moreland and does not think the physician understands
R[estrictions] & L[imitation]s. He will talk with the doctor to
verify if he will provide additional information to us” about R&Ls.
PLA-CL-IDI-000719. On November 18, 2013, Dr. Moreland sent a
follow-up letter to Dr. Bress to clarify his position regarding
Plaintiff’s restrictions and limitations. He stated,

-24-

As a rheumatologist, I have experienced many patients who
suffer with autoimmune diseases resulting in significant
fatigue and other symptoms. Not all of those symptoms are
verifiable by objective evidence, though they are no less
real or debilitating.
Dr. Khan reports intermittent periods of dizziness, left
ear pain,
burning in the feet, arthralgia (causing
difficulty walking and standing) and significant pain.
In the case of Dr. Khan, his positive findings on
examination include elevated blood pressure, tachycardia,
fluid in the ears, redness in the left eye due to
scleritis, decreased left nasolabial fold with mild
ptosis and swelling right knee.
Clearly given the above, Dr. Khan is restricted and
limited from performing the regular and substantial
duties of evaluating and treating patients both in the in
patient and outpatient settings.
Unless and until these symptoms resolve, he will continue
to be unable to perform such responsibilities.
PLA-CL-IDI-000754.
In an addendum to his report dated November 18, 2013, Dr.
Bress indicated that notwithstanding Dr. Moreland’s latest letter,
his opinion remained “unchanged.”

PLA-CL-IDI-000767.

Dr. Bress also evaluated Dr. Rajarathna’s letter, which did
not change his opinion because she “lists symptoms, but no physical
findings.” Dr. Rajarathna mentions lack of physical strength, but
does

not

mention

documentation

of

muscle

weakness

on

exam;

likewise, she mentions Plaintiff’s “mental situation” but does not
provide any cognitive deficit noted on exam. PLA-CL-IDI-000767-768.
Dr. Bress observed that since the “physical findings and results of
lab tests are not in dispute, but rather the interpretation of

-25-

these findings as they relate to the insured’s functionality, a DMO
[Designated

Medical

Officer]

rather

than

an

IME

[Independent

Medical Examination] opinion will be requested.” PLA-CL-IDI-000768.
Dr. John G. Paty, Jr., board-certified in internal medicine
and rheumatology, was the DMO who performed a paper-review and
concurred with Dr. Bress’s opinion. PLA-CL-IDI-000772-775. Dr.
Paty’s December 5, 2013 report consists almost entirely of a
recitation of the medical records. His opinion was that “[w]ithin
a reasonable degree of medical certainty,” “the medical record did
not support impairment noted by Dr. Moreland” “because [the]
physical findings[,]” the “laboratory data[,]” “the claimant’s
activities,”

the

absence

[of]

medication

changes

with

recent

reported symptoms, with Prednisone continued at the same dosage,
and the six-months return visit with Dr. Moreland rheumatology AP
were inconsistent with impairment due to Relapsing Polychondritis
or pain due to multiple joint pain (polyarthralgia) and fatigue.”
PLA-CL-IDI-000775. Dr. Paty referred specifically to the following
activities as contradicting Dr. Moreland’s opinion: “day-to-day
activities of reading, computer use, occasional household chores
noted

in

his

statements,

working

until

the

DOD

[Date

of

Disability], and grocery shopping.” Id. According to Dr. Paty,8 no

8

Contrary to Dr. Paty, Plaintiff told Senior Disability Specialist Robinson
that he did not shop at grocery stores because they are too big; instead, he goes
to the gas station to get what he needs. He uses his car as much as possible and
avoids walking. PLA-CL-IDI-000170.

-26-

further medical investigation was necessary. Id.
IV.

Defendant’s Denial of Benefits
By

letter

Robinson

dated

informed

December

Attorney

11,

Quiat

2013,

that

Benefits

Defendant

Specialist

was

denying

Plaintiff’s claim, PLA-CL-IDI-000804-810, because the “medical
information . . . received does not support an impairment that
would prevent him from being able to perform the duties of his
occupation. As such, he is not eligible to receive Total Disability
benefits, Residual Disability benefits, Recovery benefits or Waiver
of

Premium.”

PLA-CL-IDI-000805.

Benefits

Specialist

Robinson

explained that the medical records “do not support an impairment
because physical findings, laboratory data, Dr. Khan’s activities,
the absence of medication changes with recent reported symptoms and
Prednisone continued at the same dosage, as well as the six-months
return visit with his treating physician are inconsistent with
impairment

due

to

Relapsing

Polychondritis

or

pain

due

to

polyarthralgia and fatigue.” PLA-CL-IDI-000805. The denial letter
also noted that Plaintiff’s “Individual Disability Status Update
forms completed in July and August 2013 noted difficulty with
mobility, fatigue, and any form of physical exertion, which is
inconsistent with physical findings noted by Dr. Moreland in 2013
and by Dr. Orszulak.” PLA-CL-IDI-000805-806. Moreover, Plaintiff’s
“reported

day-to-day

activities

of

reading,

computer

use,

occasional household chores noted in his statements, working until

-27-

June 2013, and grocery shopping are inconsistent with an impairment
of

recurrent

polychondritis.”

PLA-CL-IDI-000806.

As

to

the

diagnosis of polyarthritis, Benefits Specialist Robinson observed
that Plaintiff’s “examinations revealed no abnormal joint findings
to suggest the presence of this condition[,]” and therefore, “if
this condition is present, it is extremely mild and does not
support restrictions or limitations.” Id.
V.

The Administrative Appeal
A.

Plaintiff’s Appeal Letter, Supporting Documents and New
Medical Opinions

Attorney Quiat requested Plaintiff’s claim file via letter
dated April 21, 2014, and the matter was reassigned to Lead Appeals
Specialist Richard A. Enberg (“Appeals Specialist Enberg”). PLA-CLIDI-000839.

Plaintiff’s formal appeal and letter brief were filed

on June 9, 2014.

PLA-CL-IDI-000865-880. Attorney Quiat also

submitted a supporting certification from Plaintiff, PLA-CL-IDI000881-885, and several medical records that were already on file
with Defendant. In addition, Attorney Quiat submitted a new opinion
from rheumatologist Dr. Joseph M. Grisanti, whom Plaintiff saw on
April

10,

2014.

Plaintiff’s

PLA-CL-IDI-000896-898.

history

of

scleritis,

Dr.

Grisanti

proteinuria,

noted

relapsing

polychrondritis and arthralgias. Dr. Grisanti recommended that
Plaintiff pursue early retirement or disability because of his
inability

to

function

as

the

result

of

the

“dominating

fatigability” associated with the foregoing diagnoses. Dr. Grisanti
-28-

was not optimistic that Plaintiff’s symptoms would resolve.
Finally, Attorney Quiat submitted a Notice of Award from the
Social Security Administration (“SSA”), indicating that Plaintiff
was entitled to monthly disability benefits beginning December
2013.

PLA-CL-IDI-000900-903.

By letter dated July 24, 2014, Attorney Quiat submitted a
supplemental

report

from

rheumatologist

John

H.

Stone,

M.D.,

M.P.H., dated July 23, 2014, along with Dr. Stone’s clinical notes
of his appointment with Plaintiff on May 29, 2014. PLA-CL-IDI000954-958. Dr. Stone opined that the diagnosis of polychondritis
was confirmed not only by the records but by the test results and
his clinical evaluation of Plaintiff. Given this diagnosis, Dr.
Stone stated, Plaintiff’s complaints of severe fatigue and pain
were

“reasonable

and

expected

symptoms

of

his

[r]elapsing

[p]olychrondritis.” Dr. Stone indicated that he was familiar with
the types of physical requirements demanded by hospital-based
medicine,

and

polychronditis

that,
and

given
physical

Plaintiff’s

diagnosis

manifestations

of

of

the

relapsing
condition,

Plaintiff was totally disabled from his prior occupation. Dr. Stone
explained that his opinion was based on his past experience in
treating relapsing polychrondritis, his clinical observations of
Plaintiff, and a review of his medical history.
B.
With

The SSA Decision
Plaintiff’s

permission,

-29-

Appeals

Specialist

Enberg

obtained the Social Security Disability Insurance (“SSDI”) file
from the SSA. PLA-CL-IDI-000917. The SSDI file was received by
Defendant at some point after August 15, 2014, and before October
17, 2014.
Plaintiff’s application was completed online and processed
over the phone. The SSA representative who interviewed Plaintiff
described him as polite and knowledgeable, and stated that he
“sounded very tired.”
decision

maker9

on

A final decision was issued by a single

November

18,

2013.

PLA-CL-IDI-001217-1253.

Plaintiff alleged disability based on relapsing polychondritis with
fatigue and arthralgia. PLA-CL-IDI-001228. The medical records
requested by the SSA were from Dr. Orszulak and Dr. Moreland, for
the period from 2012 to the present. PLA-CL-IDI-001228, 1254-1261.
Plaintiff described his duties during a typical workday as follows:
walking, standing, and sitting for 2.5 hours each; and stooping,
kneeling, and crouching for 1 hour each. PLA-CL-IDI-001223. He did
not have to lift or carry anything heavier 10 pounds. Id. The SSA
found that no consultative examination was required; that Plaintiff
had the “severe” impairment of “other disorders of the nervous
system” and the “non-severe” impairment of “diabetes mellitus”;

9
Under the SSA’s SDM model, a disability examiner could make the
initial determination in most cases without obtaining the signature of a
medical consultant.
https://www.federalregister.gov/documents/2018/12/12/2018-26803/modificationsto-the-disability-determination-procedures-end-of-the-single-decisionmaker-tes
t-and
(last accessed Apr. 26, 2019).

-30-

that his subjective complaints were substantiated by the objective
medical evidence alone; and that there were no medical opinions.
PLA-CL-IDI-001230.

The

SSA

concluded

residual functional capacity (“RFC”) to

that

Plaintiff

had

the

stand and/or walk (with

normal breaks) for “significantly less than 2 hours” and sit (with
normal breaks) for about 6 hours in an 8-hour workday. PLA-CL-IDI001231. The SSA found that “due to extreme fatigue,” Plaintiff was
“unable to [perform] a 40 hour/week job.” Id. When asked to explain
how and why the evidence supported the limitations imposed, the SSA
cited bone scans in 2006 indicating arthritic changes in the hands
and feet. He also stated that Plaintiff got an infection in 2004,10
and since that time has been unable to discontinue prednisone; that
he has established joint pain; that he experiences extreme fatigue,
headaches, and dizziness to the point where he would collapse or
need to hold onto a fixed object so as not to fall; and that he has
experienced swelling in his feet and has left-sided facial droop.
The SSA concluded that Plaintiff did not have the RFC to perform
his past relevant work as a neurologist (Dictionary of Occupational
Titles (“DOT”) code 070.101-050).11 Because Plaintiff’s impairment

10

It is unclear to what the decision is referring as there are no medical
records from 2004, and no reference in the medical records available that
Plaintiff ever had an infection that was treated with prednisone. This may be a
reference to Plaintiff’s left eye episcleritis which was treated with prednisone.
11
A neurologist is classified as a light exertional level job in the
DOT. See http://www.govtusa.com/dot/dot01b.htm;
https://occupationalinfo.org/07/070101050.html (last accessed Apr. 26, 2019).

-31-

was “so severe that he is limited to

significantly less than a

full range of sedentary work,” Medical-Vocational Rule 204.00
directed a finding of disability. PLA-CL-IDI-001232.
C.

Defendant’s Medical Consultant’s Review on Appeal

Defendant’s in-house medical consultant Beth Schnars, M.D.,
board-certified in internal medicine, conducted a paper review of
Plaintiff’s claim and issued a report. PLA-CL-IDI-000934-939. In
pertinent part, Dr. Schnars agreed that relapsing polychondritis,
“a

rare

autoimmune

disorder

characterized

by

progressive

inflammation of cartilage particularly of the ears, nose, and
trachea with cartilage destruction,” “can also be associated with
polyarthritis and ocular symptoms[,]” such as alleged by Plaintiff.
PLA-CL-IDI-000937. Dr. Schnars commented that the treatment for
this disorder was “low dose steroids with addition of other immune
modulating

agents

for

unremitting

symptoms.”

Id.

“While

some

symptoms are supportive of this diagnosis,” she noted, “the medical
records provided do not [sic] severity [sic] symptoms, aggressive
treatment or exam findings supportive of significant underlying
pathology[,]” PLA-CL-IDI-000937, since “[s]erial peripheral joint
exams by various providers since 2005 have all been normal without
any documentation of significant tenderness or synovitis[;]” and
“[t]here has been no evidence of cartilaginous inflammation or the
ears/nose/trachea (the ear lobe does not contain cartilage).” Id.
Dr. Schnars noted that rheumatologist Dr. Grisanti’s office

-32-

visit note “remarked on tenderness of the upper aspect of the left
ear without swelling/redness,” and Dr. Moreland mentioned “left eye
ptosis with nasal labial flattening in [his] letter of advocacy in
11/13[,]” but “[t]hese findings have been present since 2006[,] are
not suggestive of polychondritis[,] and would not contribute to
functionality.” PLA-CL-IDI-000937. Serial connective tissue panels
and inflammatory markers have all been negative since 2005. Dr.
Schnars observed that while Plaintiff’s early bone scans noted mild
peripheral joint uptake, no provider has recently recommended bone
imaging “as would be anticipated for unremitting pain limiting
functionality.” PLA-CL-IDI-000937. Morever, there have been no
medication

changes

recommended

as

would

be

anticipated

for

uncontrolled symptoms due to underlying rheumatologic disorder;
instead, Plaintiff has been self-prescribing prednisone (l0 mg
daily) since 2009, and there have been no medications used for
joint pain. Id.
Dr.

Schnars

noted

that

Dr.

Moreland

“recommended

work

cessation due to fatigue/arthralgias when presented with disability
papers[,]” in May 2013, but a primary care note from May 30, 2013,
“documented no reports of arthralgias or ear pain with normal
exam.”
Considering

Plaintiff’s

(polychondritis,

episcleritis,

chronic

pain,

hypertension

general

medical

arthralgias,

and

-33-

neuropathy)

diabetes,

diagnoses
fatigue,

collectively

and

individually, in a “whole person analysis,” Dr. Schnars found they
“do not rise to the level of impairment from or since the [date of
disability]” because all of Plaintiff’s supporting medical expert
opinions from Dr. Moreland, Dr. Rajarathna, Dr. Grisanti, and Dr.
Stone were “based on self reports of long standing fatigue without
supporting evidence of abnormalities on exam or lab findings and
lack

of

aggressive

medical

management.”

After

reviewing

rheumatologist Dr. Stone’s letter and clinical notes, Dr. Schnars
issued an addendum finding that they did not change her opinion.
PLA-CL-IDI-000960.
D.

“No Deference” Review by Outside Medical Expert

Appeals Specialist Enberg, after conferring with Dr. Schnars,
decided to obtain a “no deference” medical review of the file by an
outside

physician

credentialed

in

rheumatology.

Dr.

Schnars

provided the following questions for the outside rheumatologist’s
paper IME: whether the medical records support the diagnosis of
polychondritis;

whether

the

medical

records

support

any

restrictions or limitations for any period from June 10, 2013;
whether the intensity of treatment, frequency of evaluation, exam
findings

and

diagnostic

testing

consistent

with

severity

of

underlying disease from polychondritis or other medical conditions;
and whether the medical records reflect any change in condition
around the date of disability from chronic medical issues. PLA-CLIDI-000974.

-34-

On August 15, 2014, rheumatologist Alfonso Bello, M.D., of the
Illinois Bone & Joint Institute, was sent Dr. Schnars’s questions,
Plaintiff’s

medical

records,

and

the

in-house

file

reviews

performed by Defendant’s medical consultants. Dr. Bello was not
sent the SSDI file, as it had not been received by that point. PLACL-IDI-000986-989.
Dr. Bello submitted his report to Defendant on September 17,
2014. PLA-CL-IDI-001330-1333. In response to Defendant’s specific
questions,

he

polychrondritis
examination,

concluded
was

and

that

confirmed

evaluation

the

based
by

two

diagnosis
on

the

of

history,

different

relapsing
clinical

board-certified

rheumatologists. PLA-CL-IDI-001332. Notwithstanding the diagnoses
of relapsing polychrondritis and complaints of arthralgias and
fatigue, Dr. Bello found “there has been no clear evidence of
physical

limitations

based

on

objective

clinical

evidence

specifically of abnormal musculoskeletal examinations that would
warrant restrictions or limitations based on [a] reasonable degree
of medical knowledge.” Id. According to Dr. Bello, the level of
activity required to practice medicine would fall into the category
of sedentary to light duty work exertion requirements but “there
has been no data that was provided in the medical records to
support restrictions in either category.” Id. Dr. Bello determined
that the frequency of evaluations, exam findings, and diagnostic
testing “appear to be consistent with [Plaintiff]’s diagnosis of

-35-

[sic] difficulty in the overall management; however, there is [sic]
no

treatment

guidelines”

for

relapsing

polychrondritis.

Id.

Finally, as to whether there was any change in Plaintiff’s medical
condition around the alleged date of disability, Dr. Bello opined
that there “appears to be no specific findings that would indicate
a flare other than of his scleritis.” PLA-CL-IDI-001333. Dr. Bello
reiterated

that

“other

than

his

subjective

complaints

of

arthralgias and fatigue, there were no specific musculoskeletal
findings are noted at any of the clinical evaluations reviewed.”
Id. Therefore, “it is difficult to assess whether in fact there
were any major changes through the period of the medical records to
the period reviewed.” Id.
E.

Denial of the Appeal

On October 17, 2014, Appeals Specialist Enberg sent Attorney
Quiat a letter stating that Defendant was denying Plaintiff’s
appeal. PLA-CL-IDI-001345-1351. The letter chiefly relied on Dr.
Bello’s file review. Defendant purported to distinguish the SSDI
decision on the basis that the SSA did not include a review by a
physician, that it was “inconsistent with the medical evidence,”
that the SSA did not consider unspecified evidence subsequent to
October 31, 2013, which was “not supportive of disability,” and
that the “comprehensive medical reviews by the Unum physician and
the specialty medical examiner are compelling evidence in support
of work capacity for your occupation.”

-36-

On

November

19,

2014,

Defendant

submitted

additional,

unspecified records to Dr. Bello. PLA-CL-IDI-001364. On December 5,
2014, Dr. Bello issued a brief addendum stating that his “previous
opinion stands.” PLA-CL-IDI-001372-1373. On December 22, 2014,
Appeals Specialist Enberg notified Attorney Quiat about having
forwarded the additional records to Dr. Bello, and that review of
these records did not change Dr. Bello’s opinion. PLA-CL-IDI001378-1379.
VI.

Plaintiff’s Credibility
After

reviewing

the

entire

Administrative

Record,

it

is

apparent that—in the opinions of Defendant and its in-house and
external

medical

disability

consultants—Plaintiff’s

benefits

stood

or

fell

on

claim

the

for

long-term

credibility

of

his

subjective complaints. A district court’s determination as to
whether a claimant’s complaints of pain and fatigue are or are not
credible is a finding of fact subject to appellate review for clear
error.

Connors,

Plaintiff’s

272

F.3d

subjective

at

137.

complaints

The

are

question

sufficient

of

whether

evidence

of

disability is legal in nature and subject to de novo review on
appeal. Id.
proceeding

(citing
to

the

LoPresti,
legal

126

issue,

F.3d
the

at 39).

Court

must

Thus,

before

assess

the

credibility of Plaintiff’s complaints and make a factual finding.
See id.; see also Fed. R. Civ. P.

52(a)(6).

The Court is guided in its inquiry by the two-step credibility

-37-

analysis utilized by adjudicators in the SSDI context.12 The Court
finds that Plaintiff has proven by a preponderance of the evidence—
in

particular,

the

unanimous

opinions

of

the

physicians

who

examined him—that he suffers from medically determinable impairment
s that could reasonably be expected to produce the pain and fatigue
alleged.

Defendant’s

meaningfully

in-house

challenged

the

medical

validity

reviewers
of

any

of

have

never

Plaintiff’s

diagnoses, and outside rheumatologist Dr. Bello agreed that the
diagnosis of relapsing polychondritis was confirmed by the medical
record.
Turning to the next step, the Court notes that the SSA found
that the severity of Plaintiff’s symptoms were wholly substantiated
by his own statements in his application and the medical records
from Drs. Moreland and Orszulak (which represented but a small
subset of the records reviewed by Defendant and its consultants).
None of the physicians who examined Plaintiff ever suggested that
he was malingering or engaging in symptom magnification.
The Court finds the attempts by Defendant and its medical

12

See, e.g., Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010)
(unpublished opn.) (the adjudicator first must determine whether the claimant
suffers from a “medically determinable impairment[ ] that could reasonably be
expected to produce” the symptoms alleged, and then “must evaluate the intensity
and persistence of those symptoms considering all of the available evidence; and,
to the extent that the claimant’s pain contentions are not substantiated by the
objective medical evidence, the ALJ must engage in a credibility inquiry”)
(quoting 20 C.F.R. § 404.1529 (applicable to claims filed prior to Mar. 27,
2017); citing Social Security Ruling 96–7P, Policy Interpretation Ruling Titles
II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 1996 WL 374186 (S.S.A. July 2, 1996)
(applicable to claims filed prior to Mar. 16, 2016)).

-38-

reviewers to dissect Plaintiff’s credibility to be unavailing. For
instance, in-house medical consultant Dr. Schnars noted that when
rheumatologist Dr. Stone examined Plaintiff in 2014, there was “no
documentation of fatigue or limitations of functionality during
[Dr. Stone’s] 5/14 evaluation which is commented upon during 7/14
letter of advocacy.” However, a review of the medical records
indicates that Plaintiff consistently and routinely complained of
fatigue and joint pain to all of his physicians.

The fact that Dr.

Stone, as well as Plaintiff’s other medical providers such as Dr.
Moreland, Dr. Levy, Dr. Grisanti, Dr. Rajarathna, “relied on [his]
subjective complaints hardly undermines [their] opinion[s] as to
[his]

functional

complaints,

or

limitations,

history,

is

as

an

‘[a]

patient’s

essential

report

diagnostic

of

tool.’”

Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (quoting
Flanery

v.

Chater,

112

F.3d

346,

350

(8th

Cir.

1997);

last

alteration in original).
Dr. Schnars and other of Defendant’s medical consultants also
found Plaintiff’s symptomatology not credible because his course of
treatment was not sufficiently “aggressive.” For instance, Dr.
Schnars noted that it was recommended on a few occasions that
Plaintiff take steroid-sparing agents but none were initiated.
Based on the Court’s reading of the medical records, it appears
that this recommendation was made largely to mitigate Plaintiff’s
significant adverse effects from prednisone, such as steroid-

-39-

induced diabetes and mental status changes. While Dr. Schnars
asserted that Plaintiff took no medication for chronic pain, notes
from nephrologist Dr. Wu indicate that Plaintiff occasionally took
Celebrex, a pain medication13 prescribed by rheumatologist Dr. Liu.
On February 29, 2008, Dr. Liu informed primary care physician Dr.
Toma that Plaintiff’s “joint pain is still problematic but with his
BP [blood pressure] issues-we have not increased the Celebrex.”
PLA-CL-IDI-00110. Dr. Schnars and Dr. Bress found that Plaintiff’s
statements about the severity of his symptoms were undercut by the
fact that he was only taking 10 mg of prednisone. However, the
record shows that higher daily dosages “led to side-effects of
depression, mania and psychosis[.]” PLA-CL-IDI-001029. Plaintiff
has stated that he still experiences break-through pain even when
on prednisone. PLA-CL-IDI-000170.
Appeals Specialist Enberg, Dr. Schnars and Dr. Paty relied on
the fact that Plaintiff continued to work after Dr. Moreland
completed the supporting disability papers to show that Plaintiff
was not disabled from performing his occupation. Dr. Schnars also
cited

a

Hospital

representative’s

comment

that

the

date

of

disability was within two weeks of Plaintiff’s being terminated

13
Celebrex® (celecoxib) is a non-steroidal anti-inflammatory in the
COX-2 inhibitor family used to relieve pain, tenderness, swelling and
stiffness caused by osteoarthritis (arthritis caused by a breakdown of the
lining of the joints) and rheumatoid arthritis (arthritis caused by swelling
of the lining of the joints).
https://medlineplus.gov/druginfo/meds/a699022.html (last accessed May 1,
2019).

-40-

from his position. However, the reason given by the Hospital for
Plaintiff’s

termination

was

that

he

was

not

meeting

billing

expectations or seeing enough patients. This actually tends to
corroborate the statements Plaintiff made in 2013 to Dr. Moreland
and Dr. Rajarathna that his pain and fatigue were increasing in
severity to the point that he was unable to keep up the pace
required

of

him

at

work,

and

he

therefore

planned

to

seek

disability. In his sworn certification, Plaintiff stated that he
understood

why

the

Hospital

was

choosing

not

to

renew

his

employment contract and that the Hospital had offered him work as
an independent contractor; however, he turned it down because he
could not manage practicing medicine at a reduced level. The fact
that Plaintiff persevered in continuing to work despite his chronic
fatigue and pain should not be used against him. See Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[D]isability claimants
should not be penalized for attempting to lead normal lives in the
face

of

their

limitations.”).

Indeed,

“numerous

courts

have

recognized that a disability claimant can still be found to be
disabled even if he or she worked for some period after the onset
of disability.” Perryman v. Provident Life & Accident Ins. Co., 690
F. Supp.2d 917, 950 (D. Ariz. 2010) (fact that claimant continued
to work for three years after diagnosis of chronic fatigue syndrome
was, by itself, insufficient to establish that she was not disabled
under ERISA disability plan’s “any occupation” provision, where

-41-

there was evidence that she experienced serious problems working
during that period) (citing Hawkins v. First Union Corp. Long–Term
Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003) (in an ERISA
fibromyalgia case, noting that there is no “logical incompatibility
between working full time and being disabled from working full
time” because “[a] desperate person might force himself to work
despite an illness that everyone agreed was totally disabling” but
“even

a

desperate

person

might

not

be

able

to

maintain

the

necessary level of effort indefinitely.”); Rochow v. Life Ins. Co.
of N. Am., 482 F.3d 860, 865 (6th Cir. 2007) (disability claimant’s
presence on the payroll subsequent to the alleged disability onset
date is not determinative as to whether he was disabled during that
time); other citation omitted).
Defendant and its medical consultants also found Plaintiff’s
limited daily activities to be inconsistent with the degree of pain
and fatigue alleged by Plaintiff and with the disability-supporting
opinions by Dr. Moreland. 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 twentyfour hours a day, seven days a week, if necessary. Courts in this

-42-

Circuit repeatedly have recognized in the SSDI context that a
“claimant’s participation in the activities of daily living will
not rebut his or her subjective statements of pain or impairment
unless there is proof that the claimant engaged in those activities
for sustained periods of time comparable to those required to hold
a [full-time] job” in the competitive workforce. Polidoro v. Apfel,
No. 98 CIV.2071(RPP), 1999 WL 203350, at *8 (S.D.N.Y. Apr. 12,
1999) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d
638, 643 (2d Cir. 1983) (finding that Secretary failed to sustain
burden of showing that claimant could perform sedentary work on the
basis of (1) testimony that he sometimes reads, watches television,
listens to the radio, rides buses and subways, and (2) ALJ’s
observation that claimant “‘sat still for the duration of the
hearing and was in no evident pain or distress’”; circuit found
“[t]here was no proof that [claimant] engaged in any of these
activities for sustained periods comparable to those required to
hold a sedentary job”)).
Having read the entire Administrative Record along with all of
the

parties’

dispositive

submissions
motions

and

in
the

connection
R&R,

the

with
Court

their
is

respective

convinced

of

Plaintiff’s credibility regarding the debilitating nature of the
subjective symptoms caused by his illnesses, in particular his
severe fatigue and pain.
CONCLUSIONS OF LAW

-43-

The following section constitutes the Court’s conclusions of
law, pursuant to Fed. R. Civ. P. 52(a)(1). To the extent that any
conclusion of law reflects a finding of fact, it shall to that
extent be deemed a conclusion of law. Barbu, 35 F. Supp.3d at 280.
As noted above, the parties have stipulated to review under the de
novo standard. Under this standard, Plaintiff bears the burden of
proving by a preponderance of the evidence that he was disabled as
defined by the Disability Policy and therefore entitled to benefits
under

it.

Kagan

v.

Unum

Provident,

775

F.

Supp.2d

659,

671

(S.D.N.Y. 2011) (citing Paese v. Hartford Life & Accident Ins. Co.,
449 F.3d 435, 441 (2d Cir. 2006) (on de novo review of an ERISA
plan

administrator’s

decision

claimant

has

burden

of

proving

disability under the policy by a preponderance of evidence);
Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir.
2010) (same)).
I.

Resolution of the Parties’ Objections to the R&R
A. Standard of Review
Should either party object to a magistrate judge’s report and

recommendation, “[a] judge of the court shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Second Circuit has clarified that “[e]ven if
neither party objects to the magistrate’s recommendation, the
district

court

is

not

bound

by

-44-

the

recommendation

of

the

magistrate.” Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989),
Rather, “‘[a] judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate. The judge may also receive further evidence or recommit
the matter to the magistrate with instructions.’” Id. (quoting 28
U.S.C. § 636(b)(1); citing Mathews v. Weber, 423 U.S. 261, 271
(1976); McCarthy v. Manson, 714 F.2d 234, 237 n. 2 (2d Cir. 1983)).
B.

Defendant’s Objections

Defendant filed Objections (“Def.’s Obj.”) (Docket No. 40)
asserting that the R&R (1) improperly admitted evidence outside the
administrative record without a showing of good cause by Plaintiff,
see Def.’s Obj. at 4-6; (2) erred by determining that “facts”
underlying other insurers’ decisions, which are not part of the
record, may be considered at a subsequent bench trial, see id. at
6-8; (3) erroneously relied on a claims manual issued by Defendant
that is not part of the administrative record, see id. at 8-11; (4)
incorrectly recommended that a bench trial is necessary, see id. at
11-14; and (5) erroneously concluded that Unum Group, Defendant’s
corporate parent, is the plan administrator, id. at 14-15.
1.

Admission of Evidence Without Good Cause

On January 5, 2016, rheumatologist Dr. Carette issued a
“Reassessment

Summary,”

indicating

that

Plaintiff

had

been

diagnosed with granulomatosis with polyangiitis (“GPA”), formerly
known as Wegener’s granulomatosis. The following day, January 6,

-45-

2016,

at

a

status

conference

with

Magistrate

Judge

Foschio,

Plaintiff’s counsel acknowledged on behalf of his client that no
discovery

beyond

the

Administrative

Record

was

necessary.

Subsequently, in support of his summary judgment motion, Plaintiff
sought admission of Dr. Carette’s Reassessment Summary because it
was relevant to proving that “he is totally disabled.” Docket No.
25-3 at 11. Defendant countered that the Reassessment Summary was
not part of the Administrative Record and that Plaintiff had failed
to meet his burden of establishing good cause for its admission and
consideration. Plaintiff replied that “a new diagnosis is good
cause.”
The R&R correctly stated that in the Second Circuit “the
decision whether to admit additional evidence is one which is
discretionary with the district court, but which discretion ought
not to be exercised in the absence of good cause.” DeFelice v.
American Int’l Life Assurance Co. of New York, 112 F.3d 61, 66 (2d
Cir. 1997). The R&R then concluded that Plaintiff established good
cause to admit Dr. Carette’s Reassessment Summary because the
diagnosis was based upon objective medical testing and physical
examination, and therefore was “highly probative” of Plaintiff’s
disabling condition. R&R at 41.

Somewhat confusingly, however,

Plaintiff’s counsel did not make such an argument and, in fact,
admitted that Dr. Carette’s Reassessment Summary was not material
to the question of whether Plaintiff is disabled and entitled to

-46-

benefits. See Declaration of Robert J. Rosati, Esq. (Docket No. 252) ¶ 2 (“The point of this declaration is to bring to the Court’s
attention

facts regarding

the

case,

but

not

material

to

the

question of whether or not Dr. Khan is disabled and entitled to
benefits.”).
Moreover, the probative value of extra-record evidence to a
claimant’s disability status is not the test for determining if
“good cause” exists to augment the administrative record. The Court
does not find Tritt v. Automatic Data Processing, Inc. Long Term
Disability Plan, No. 3:06-CV-2065 RNC, 2012 WL 3309380, at *10 (D.
Conn. Aug. 13, 2012), aff’d, 531 F. App’x 177 (2d Cir. 2013), to be
controlling here. Tritt involved the weight to be accorded to a
retrospective diagnosis already part of the record in an ERISA
case. See Tritt, 2012 WL 3309380, at *10.
Likewise, Paese, 449 F.3d at 441, is distinguishable. In that
case, the district court found that good cause existed for the
admission of the report because it was highly probative and written
by a disinterested party who had actually examined Paese, and
because Paese was not at fault for the report’s initial absence
from the record.” Id. (emphasis supplied). Here, the record was not
created until after the Administrative Record was closed. At the
same time, Plaintiff arguably is not at fault for the absence of
the report’s contents from the Administrative Record. Dr. Carette’s
notes suggest that information which possibly could have led to an

-47-

earlier diagnosis of GPA may have been overlooked by Plaintiff’s
treatment

providers.

See

Docket

No.

25-2,

p.

16

of

36.

Dr.

Carette’s diagnosis of GPA was made after he repeated an ANCA
[Antineutrophil Cytoplasmic Antibody] test in June 2015, based on
his observation that Plaintiff was “once found to have positive
ANCA’s in an outside lab (method of detection not determined nor
was the type of ANCA).” Id. Dr. Carette repeated this test, which
yielded

positive

anti-PR3.

Plaintiff’s

history

of

scleritis,

polyarthralgia and positive findings in his urine suggestive of
glomerulonephritis, combined with his last serology assessment
showing

positive

anti-PR3,

“[a]ll

.

.

.

point[ed]

to

ANCA

associated vasculitis (Granulomatosis and polyangitiis). . . .”
Id., p. 14 of 36. On June 30, 2015, before ordering the new ANCA
test, Dr. Carette noted they “still don’t have a clear diagnosis.
. . .” Id., p. 16 of 36. And, as Plaintiff points out, Wegener’s
granulomatosis was considered as a diagnosis years ago.
While Dr. Carette’s notes thus suggest that the diagnosis of
GPA

was

retrospective

in

nature,

it

is

not

clear.

Also,

as

Plaintiff argues, the Disability Policy does not require that he
have a definitive or certain diagnosis. Thus, it is difficult to
describe Dr. Carette’s report as “highly probative” on the issue of
whether Plaintiff was disabled at the time he applied for benefits.
Under Paese, the Court does not find good cause to admit Dr.
Carette’s Reassessment Summary as proof that Plaintiff was disabled

-48-

as of June 10, 2013, because Plaintiff has not established that the
document was

“highly

probative”

and

was

not

included

in

the

Administrative Record through no fault of his own. The Court
therefore rejects this finding of the R&R.
2.

Admissibility of Other Insurers’ Decisions

The R&R correctly found that the favorable claims decisions
issued by

The

Hartford

and

MetLife,

from

whom

Plaintiff had

purchased disability policies, were not binding on this Court. R&R
at 46 (citing Kocsis v. Standard Ins. Co., 142 F. Supp.2d 241, 25253, 255 (D. Conn. 2001) (finding that Standard was “not bound by
the decision of Phoenix, another disability insurer, regarding the
plaintiff’s eligibility for benefits under an entirely separate
insurance policy”)). The R&R went on to find that the “facts” that
The Hartford and MetLife awarded long-term disability benefits “may
be considered at a bench trial.” R&R at 46 (citing Frischman v.
Fleming, 193 F. Supp. 619, 624 (E.D.N.Y. 1961)).
The Court agrees with Defendant that Frischman is inapposite
to

this

Frischman

ERISA

matter

stands

only

for
for

several
the

reasons.

unremarkable

Most

importantly,

proposition

that

physician’s medical reports as to a claimant’s disability could be
considered by, but are not binding on, the SSA. Here, however, the
other insurers’ decisions are not actually in the Administrative
Record; nor are the policies they issued or the records they
considered.

The

only

information

-49-

available

to

the

Court

is

Plaintiff’s assertion that he was “quickly” awarded benefits by The
Hartford and MetLife.
It would demand too much of Frischman to read it as stating
that

other

insurers’

decisions,

based

on

different

policies

containing different definitions of disability, would be relevant
to this Court’s determination whether this claimant is disabled
under

the

policy

he

purchased

from

this

insurer.

The

Court

accordingly rejects this portion of the R&R.
3.

Reliance on Claims Manual Not in the Record

The R&R noted that Plaintiff presented an argument to the
effect that “Defendant’s own claims manual requires the SSA’s
decision to be given ‘significant weight.’” R&R at 43. Defendant
objects to this observation because the claims manual itself is not
in the Administrative Record and because Plaintiff did not mention
the claims manual until he filed his reply brief. Defendant also
objects to the R&R’s finding that the SSA’s decision is relevant
and should be given “‘significant weight,’ as required under the
Disability Policy.” R&R at 46.
To the extent the R&R asserted that the Disability Policy
requires significant weight to be accorded to a decision by the
SSA, this is inaccurate: The Disability Policy mentions nothing
whatever

about

decisions

by

the

SSA.

However,

as

Plaintiff

counters, the Administrative Record contains evidence, from at
least two employees, that the claims manual applicable to deciding

-50-

claims under the Disability Policy does require significant weight
to be given to the SSA’s disability decisions.
First, Appeals Specialist Enberg sought input from in-house
attorney Nancy M. Smith (“Attorney Smith”) regarding the caselaw
cited in Plaintiff’s appeal letter. In her response, Attorney Smith
note[d] that the Insured was awarded SSDI benefits. Under
the claim manual, the company must provide significant
weight to that decision. The administrative record would
include the information provided by him that the other
carriers are providing benefits.
In an [sic] response you should note that the company has
conducted a full and fair evaluation of the Insured’s
eligibility for benefits consistent with its obligations
under the policy and ERISA.
PLA-CL-IDI-000929 (emphasis supplied).
On September 11, 2014, Appeals Specialist Enberg informed
Attorney Quiat that he was awaiting receipt of the SSDI file.
Appeals Specialist Enberg “explained that if the opinion of the
rheumatologist supports disability, the SSDI file would not be
necessary to complete appeal. However, if the rheumatologist does
not

support

disability

we

are

still

required

to

provided

significant weight to SSDI.” PLA-CL-IDI-001212 (emphasis supplied).
As the R&R notes, Defendant “‘admits that the administrative record
contains claim notes, which speak for themselves.’” R&R at 44 n. 12
(quoting Defendant’s Response Statement of Facts (Docket No. 27-2)
¶ 72; alteration omitted). In light of the foregoing, the Court
finds no error in the R&R’s analysis of the SSA decision and the
weight to be accorded to it under the claims manual applicable to
-51-

Plaintiff’s Disability Policy.
Finally, Defendant’s assertion that “the record contains none
of the information on which the SSA based its decision,” Def.’s
Obj. at 10, is incorrect. The Administrative Record contains the
entire SSA file, and the SSA’s decision indicates which medical
records were requested, obtained, and considered.
4.

Recommendation for a Plenary Bench Trial

Because the parties have consented to a bench trial “on the
papers” before this Court, the R&R’s recommendation that a plenary
bench trial is necessary, see R&R at 53-54, has been rendered moot.
5.

The Identity of the Claims Administrator

Defendant objects that the R&R misconstrued the facts related
to the identity of the claims administrator. In particular, the R&R
asserted

that

“[a]ll

claims

under

the

Disability

Policy

are

administered by Defendant’s corporate parent and agent Unum Group.”
R&R at 9. Defendant notes that the R&R provided no citation to the
record to support this statement. In its Response to Plaintiff’s
Statement of Material Facts, Defendant denied Plaintiff’s assertion
that all decisions and all actions were made by Unum Group.
Instead, Defendant stated that “Provident admits that employees of
Provident’s parent, Unum Group, administered and made benefits
determinations on [P]laintiff’s claim on behalf of Provident.”
It is not clear to the Court what practical difference the
precise

identity

of

the

claims

-52-

administrator

makes

to

the

disposition of this case, since there is no dispute about which
standard of review applies.

Cf., e.g., Daniel v. UnumProvident

Corp., 261 F. App’x 316, 318 (2d Cir. 2008) (unpublished opn.)
(district court could consider agreement between insurer and its
parent corporation, even though it was not in administrative
record, where agreement was offered not to establish historical
fact pertaining to merits of claim, but to answer question that was
not, and could not have been, considered by plan administrator,
i.e., which entity decided claim and, therefore, which standard of
review was applicable in federal court). Therefore, the Court
rejects Defendant’s objection as moot.
C.

Plaintiff’s Objections

Plaintiff
doctors’

objects

opinions

to

conflict

the

R&R’s

with

the

finding

that

opinions

of

Plaintiff’s
Defendant’s

reviewing medical professionals, thereby creating genuine issues of
material fact which preclude summary judgment in Plaintiff’s favor.
Plaintiff

asserts

that

the

opinions

from

Defendant’s

medical

professionals (1) are not relevant to the issues presented; (2) do
not rebut Plaintiff’s doctors’ opinions; and (3) are based on a
lack of objective medical evidence that is not required by the
policy. See Plaintiff’s Objections (“Pl.’s Obj.”) (Docket No. 41)
at 1; see also id. at 2-5. According to Plaintiff, “Defendant’s
doctors provide[d]

no

opinion on

the issue

presented

by

the

case—whether [Plaintiff] is disabled,” but instead “only provided

-53-

opinions

as

to

whether

‘objective

medical

evidence’

prove[s]

[Plaintiff] is disabled.” Id. at 3. Because the Policy does “not
require objective medical evidence,” and Plaintiff is “disabled by
fatigue, which “is not susceptible to proof by objective medical
evidence,” id., their opinions are irrelevant. Id.
Defendant responds that the R&R correctly determined Plaintiff
was not entitled to judgment as a matter of law because Plaintiff
failed to meet his burden of proving his disability under the terms
of the Policy, namely, that he was unable, by reason of sickness or
injury, to perform each of the material duties of his occupation.
See Defendant’s Response to Plaintiff’s Objections (Docket No. 45)
at

3.

Defendant

asserts

that

it

properly

declined

to

credit

Plaintiff’s doctors’ because their opinions merely recite his
subjective complaints of pain and fatigue, and they never performed
any tests to confirm, objectively, the extent of the limitations
caused

by

Plaintiff’s

complaints.

Defendant

further

disputes

Plaintiff’s assertion that he did not need to support his claim
with objective medical evidence, given that the Policy states that
Defendant “can require any proof that [it] consider[s] necessary to
consider [his] claim.’” Id. at 4 (quotation and boldface omitted).
As discussed further below, the Court finds that Plaintiff has
established by a preponderance of the evidence that he is entitled
to

long-term

disability

benefits

provision of the Disability Policy.

-54-

under

the

“Your

Occupation”

1.

Defendant Imposed a Requirement of Objective Proof
That Is Not Contained in the Policy

Under de novo review, in contrast to arbitrary and capricious
review, the Court determines the meaning of plan provisions without
deference

to the

claims administrator’s

interpretation.

E.g.,

Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264,
1273 (2d Cir. 1995).

The Second Circuit employs the doctrine of

contra proferentem to construe ambiguous language in contracts
governed by ERISA, where, as here, review is de novo rather than
arbitrary and capricious. Masella v. Blue Cross & Blue Shield of
Conn., Inc., 936 F.2d 98, 107 (2d Cir. 1991).
As an initial matter, the Court notes that as the drafter of
the Disability Policy, nothing prevented Defendant from inserting
a coverage exception for claims of disability based on selfreported or subjective symptoms and limitations. The Disability
Policy at issue here has no exception to coverage for such claims,
so Defendant has assumed the risk of having to pay claims based on
diseases, such as Plaintiff’s, that are difficult to diagnose and
to quantify. See Salomaa v. Honda Long Term Disability Plan, 642
F.3d 666, 678 (9th Cir. 2011) (ERISA plan had “no exception to
coverage for chronic fatigue syndrome, so CIGNA has taken on the
risk of false claims for this difficult to diagnose condition”).
In describing the type of written proof that is required, the
Disability Policy employs the amorphous term “any evidence.” By not
specifying what type of evidence would be required or how it would
-55-

be weighed, Defendant left itself a loophole to interpret the
Disability Policy to mean that only objective proof is satisfactory
to prove a claimant is disabled. Indeed, Defendant’s interpretation
effectively precludes any claimant who has a sickness or disease
that manifests in mainly “subjective” symptoms from being awarded
benefits.

The Court rejects this interpretation as being contrary

to the remedial purpose behind ERISA. See Masella, 936 F.2d 98, 107
(failing to employ contra proferentem would “afford less protection
to employees and their beneficiaries than they enjoyed before ERISA
was enacted, a result that would be at odds with the congressional
purposes of promoting the interests of employees and beneficiaries
and protecting contractually defined benefits”) (internal quotation
marks and quotation omitted).
2.

Defendant and Its Medical Consultants Arbitrarily
Ignored Plaintiff’s Subjective Complaints

“It has long been the law of this Circuit that ‘the subjective
element

of

pain

is

an

important

factor

to

be

considered

in

determining disability.’” Connors, 272 F.3d at 136–37 (quoting
Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984)). Fatigue is
likewise the type of symptom that may not be discounted simply
because

the

amount

of

fatigue

an

individual

experiences

is

subjective in nature. See, e.g., Hawkins v. First Union Corp.
Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003)
(noting that “the amount of pain and fatigue that a particular case
of

[chronic

fatigue

syndrome]

produces

-56-

cannot

be

[measured

objectively]” and rejecting medical opinion “that because it is
subjective [the claimant] is not disabled”); Mitchell v. Eastman
Kodak Co., 113 F.3d 433, 443 (3d Cir. 1997) (in a case where
claimant alleged chronic fatigue syndrome, which “has no known
etiology,

it

would

defeat

the

legitimate

expectations

of

participants . . . to require those with CFS to make a showing of
clinical evidence of such etiology as a condition of eligibility
for

LTD

benefits”)

(internal

quotation

marks

and

citations

omitted).
Although the district court, on de novo review of an ERISA
plan administrator’s decision, “is not required to accept [a
claimant’s subjective] complaints as credible[,]” Connors, 272 F.3d
at 136 (citing Aponte v. Sec’y of the Dep’t of Health & Human
Servs., 728 F.2d 588, 591 (2d Cir. 1984)), “it cannot dismiss
complaints

of

pain

as

legally

insufficient

evidence

of

disability[.]” Id. (citations omitted). Here, the Court already has
found Plaintiff’s subjective complaints to be fully credible.
See Section VI, supra. The Court will proceed to examine the legal
sufficiency of that evidence.
In the Second Circuit, a plaintiff’s subjective complaints, if
believed, can be sufficient to establish disability. See Rivera v.
Schweiker, 717 F.2d 719, 724 (2d Cir. 1983) (characterizing SSDI
claimant’s
headaches

frequent
and

neck

complaints

to

pains

his

and

-57-

his

wife

testimony

and

neighbor

about

same

of
as

“overwhelming, substantial evidence” of the extent of claimant’s
pain); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (“[T]he
subjective evidence of appellant’s pain, based on her own testimony
and medical reports of examining physicians, is more than ample to
establish her disability, if believed.”)). Indeed, “[m]any medical
conditions depend for their diagnosis on patient reports of pain or
other symptoms, and some cannot be objectively established until
autopsy.

In

neither

case

can

a

disability

insurer

condition

coverage on proof by objective indicators such as blood tests where
the condition

is

recognized yet

no

such

proof

is possible.”

Salomaa, 642 F.3d at 678.
However, this is exactly what Defendant did here. Drs. Bress,
Schnars, Paty and Bello relied on the lack of “laboratory data” and
“objective” clinical findings to find Plaintiff’s complaints of
fatigue and pain unsubstantiated. Defendant’s medical reviewers
largely ignored the abnormal bone scans performed in 2006 that were
suggestive of a polyarthralgia. And, they have not stated what
types of laboratory results they would have expected to see in a
person with Plaintiff’s disease profile and symptoms. As far as
examination

findings,

they

expected

to

see

such

things

as a

fatigued appearance, joint swelling and decreased range of motion,
or the inability to get on the examination table. Defendant’s
consultants have not pointed to any medical authority stating that
swelling and decreased range of motion always occurs in cases of

-58-

polyarthralgia secondary to relapsing polychrondritis. Contrary to
Defendant’s suggestion, whether a patient “looks” tired is, of
course, a wholly subjective judgment. Rheumatologist Dr. Moreland
explained that there is no blood test or approved questionnaire
that accurately measures fatigue, and most often his patients have
normal laboratory results and examinations. Defendant’s medical
experts’ opinions demanded unspecified types of objective proof
that, given the nature of Plaintiff’s diagnoses and symptoms, is
essentially impossible to obtain.
Defendant’s

medical

reviewers’

opinions

collectively

constitute an unfavorable referendum on Plaintiff’s credibility,
formed without the benefit of examining Plaintiff in person. The
Court recognizes that while plan administrators may not arbitrarily
reject or refuse to consider the opinions of a treating physician,
they “are not obligated to accord special deference to the opinions
of treating physicians.” Black & Decker Disability Plan v. Nord,
538 U.S. 822, 825 (2003). Here, given the nature of Plaintiff’s
disease, any opinion as to his physical limitations necessarily had
to be based in large part on his subjective sensations of fatigue
and pain. A “‘special problem’” arises where, as here, “credibility
determinations
non-treating

are

at

stake:

physician’s]

determinations

regarding

if

review
a

‘the

include

claimant’s

conclusions
critical
medical

from

[a

credibility
history

and

symptomology, reliance on such a review may be inadequate.’” Holt

-59-

v. Life Ins. Co. of N. Am., No. 1:13-CV-339, 2015 WL 1243529, at *5
(E.D. Tenn. Mar. 18, 2015) (quoting Calvert v. Firstar Fin., Inc.,
409 F.3d 286, 297 n. 6 (6th Cir. 2005)). The “special problem”
described in Calvert is dramatically illustrated by this case,
where Defendant, despite having the authority to conduct an inperson medical examination or functional capacity evaluation, chose
not to do so and instead repeatedly sought paper reviews of
Plaintiff’s case. This “‘[r]aises questions about the thoroughness
and

accuracy

of

the

benefits

determination.’”

Holt,

2015

WL

1243529, at *5 (plan administrator’s failure to invoke right to
physical examination claimant, who suffered from fibromyalgia,
contributed to finding that its denial of benefits was arbitrary
and

capricious,

given

nature

of

claimant’s

illness)

(quoting

Calvert, 409 F.3d at 293; alteration in original)); see also Smith
v. Cont’l Cas. Co., 450 F.3d 253, 263–64 (6th Cir. 2006) (holding
that a non-treating physician’s characterization of the claimant’s
“subjective

complaint[s]”

as

“out

of

proportion

to

physical

findings” contributed to the arbitrary nature of the plan’s denial
of

benefits

because

it

involved

the

type

of

credibility

determination best made by a treating physician).
3.

Defendant Ignored Evidence Regarding the Actual
Vocational Requirements of Plaintiff’s Job and His
Ability to Perform Them

Although Defendant’s medical experts unanimously critiqued Dr.
Moreland for not assigning sufficiently specific “Restrictions &

-60-

Limitations,” they overlooked the fact that Dr. Moreland did
complete a form at Defendant’s request in which he gave an opinion
as

to

Plaintiff’s

exertional

limitations.

In

particular,

Dr.

Moreland estimated Plaintiff’s ability to sit, stand, and walk as
“occasional,” which Defendant’s form defined as 1 to 33 percent of
a workday. Defendant’s vocational expert, VRC Gaughan, provided an
opinion

as

to

the

exertional

and

cognitive

requirements

of

Plaintiff’s job as a hospital neurologist, concluding that it was
a “light” exertional level job which required standing for around
6 hours a day, well over 33 percent of a workday. Apparently,
however, neither Defendant nor its medical reviewers considered
this evidence as they did not mention Dr. Moreland’s form providing
specific

physical

limitations

or

VRC

Gaughan’s

medical

consultant

vocational

assessment.
While

Defendant’s

outside

Dr.

Bello

remarked in passing that a hospital-based neurology position is
“sedentary to light” in exertion, he is not a vocational expert and
he did not analyze Plaintiff’s specific position, unlike VRC
Gaughan. Consistently with VRC Gaughan, the SSA determined that,
according to the DOT, the strength level of Plaintiff’s previous
position was “light.” However, discussion or mention of the SSDI
decision was conspicuously absent from the reports issued by
Defendant’s medical consultants, notwithstanding admissions by
Appeals Specialist Enberg and Attorney Smith that the claims manual

-61-

applicable

to

deciding

Plaintiff’s

disability

claim

required

“significant weight” be accorded to a decision from the SSA.
Defendant’s

chief

justification

for

discounting

the

SSA’s

decision—that no medical expert reviewed Plaintiff’s SSDI claim or
provided

an

opinion—is

unpersuasive,

given

that

Defendant’s

consultants did not directly address whether Plaintiff is unable to
perform the material and substantial duties of his occupation but
instead attacked on his credibility. It further demonstrates that
the opinions of Defendant’s medical reviewers hardly constitute
“compelling evidence” for ignoring the SSA’s decision.
In sum, the Court finds that Plaintiff has established by a
preponderance of the evidence that he is unable, due to sickness or
disease, to perform the material and substantial duties of his
occupation as a hospital neurologist, and he therefore is disabled
under the “Your Occupation” provision of the Disability Policy.
D.

Remand for Defendant to Consider the “Any Occupation”
Claim Is Unnecessary

The R&R correctly found that Plaintiff’s failure to exhaust
administrative remedies with regard to the “Any Occupation” claim
is not a jurisdictional defect in the ERISA context but is an
affirmative defense. The R&R found that Defendant had waived the
affirmative defense, and that Plaintiff likewise had waived the
opportunity to raise the argument of Defendant’s waiver. R&R at 55.
In light of the “federal policy favoring exhaustion” in ERISA
cases, and absent a “clear and positive showing” that remand would
-62-

be “futile,” the R&R recommended dismissing the “Any Occupation”
claim without prejudice.

Id. at 56.

The Court notes that when reviewing under the arbitrary and
capricious standard, the Second Circuit has directed that an
unexhausted claim be remanded “unless no new evidence could produce
a reasonable conclusion permitting denial of the claim or remand
would otherwise be a ‘useless formality.’” Miller

v. United

Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995) (quoting Wardle v.
Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d
820, 828 (7th Cir. 1980); further citation omitted). Here, the
Court’s review is under the less deferential de novo standard.
At the time of Defendant’s final adverse decision in 2004, the
record in this case spanned 8 years and included a finding of
disability by the SSA that is basically equivalent to a finding of
disability under the “Any Occupation” standard. No reasonable
argument can be made that record is incomplete. It is true that
Defendant could obtain “new” evidence in the form of an in-person
independent medical examination or functional capacity evaluation
of Plaintiff. However, Defendant had more than ample time and
opportunity to order such examinations, yet deliberately declined
to do so.
After reviewing the entire Administrative Record, the Court
finds that no new evidence could produce a reasonable conclusion
permitting a non-arbitrary denial of Plaintiff’s claim under the

-63-

“Any Occupation” standard. Remand would, in this case, be a useless
formality. The Court further finds that the Administrative Record
establishes, by a preponderance of the evidence, that Plaintiff is
unable, due to sickness or disease, to perform the material and
substantial duties of any occupation and, as such, is disabled
under the “Any Occupation” provision.
SUMMARY
The Court concludes that, based on the Administrative Record,
Plaintiff has established by a preponderance of the evidence that
he is entitled to long-term disability benefits under the “Your
Occupation” provision in the Disability Policy, and that Defendant
erred in denying Plaintiff’s claim under that provision. Plaintiff
accordingly is entitled to the payment of benefits under the “Your
Occupation” provision as stated in the Disability Policy.
In addition, the Court declines to remand the matter to
Defendant for consideration, in the first instance, of Plaintiff’s
claim under the “Any Occupation” provision. The Court has found
that, based on the Administrative Record, Plaintiff has established
by a preponderance of the evidence that he is entitled to benefits
under the “Any Occupation” provision. Plaintiff accordingly is
entitled to the payment of benefits under the “Any Occupation”
provision as stated in the Disability Policy.
Because the Court is not in a position at this time to
determine the exact amount of those benefits, the Court will

-64-

require the parties to confer regarding the wording of a proposed
judgment. In addition to discussing the amount of benefits, the
parties shall confer on the issue of whether Plaintiff is entitled
to attorney’s fees and non-taxable expenses under 29 U.S.C. §
1132(g)(1) and if so, in what amount. The parties shall also confer
regarding the appropriate pre-judgment interest rate and start
date.
While the Court expects the parties to make every reasonable
effort to resolve all remaining issues through the joint submission
of a proposed judgment, if the parties, after a good faith effort
to do so, cannot agree on the wording of a proposed judgment, the
parties each may separately submit a proposed form of judgment,
accompanied by a memorandum of points and authorities that sets
forth the party’s positions regarding the amount of benefits, the
amount of attorney’s fees, and the amount of pre-judgment interest.
ORDERS
For the foregoing reasons, it is hereby
ORDERED that the R&R (Docket No. 33) is accepted in part and
rejected

in

part;

Plaintiff’s

Motion

for

Summary

Judgment/Alternative Motion for Judgment Pursuant to Fed. R. Civ.
P. 52 (Docket No. 25) is granted; and Defendant’s Motion for
Judgment on the Administrative Record (Docket No. 23) is denied. It
is further
ORDERED

that

Plaintiff

is

-65-

awarded

long-term

disability

insurance benefits pursuant to the “Your Occupation” and the “Any
Occupation” provisions of Disability Policy No. 06-6297809 issued
by Defendant for the period commencing June 10, 2013, through the
date of his 67th birthday. It is further
ORDERED that the parties shall report to the Court in writing
within 20 days regarding their efforts to reach consensus on the
following issues: (1) the amount of past-due long-term benefits;
(2) whether Plaintiff is entitled to attorney’s fees under 29
U.S.C. § 1132(g)(1), and if so, in what amount; and (3) the rate
and amount of pre-judgment interest to be awarded.
SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 3, 2019
Rochester, New York

-66-