GARDNER v. METROPOLITAN LIFE INSURANCE COMPANY
MEMORANDUM/OPINION THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED; DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED; AND JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 3/25/14. 3/26/14 ENTERED AND COPIES E-MAILED.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
METROPOLITAN LIFE INSURANCE
March 25, 2013
Plaintiff, Bonnie Gardner (“Gardner”), brings the instant action to challenge the
denial of her claim for disability benefits pursuant to the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B) against Metropolitan Life
Insurance Company (“MetLife”), the insurance company that funded and administered
the disability insurance plan provided by her employer. Gardner claims that MetLife’s
denial of her claim for long term disability benefits was arbitrary and capricious.
The parties have each moved for summary judgment. Gardner argues that the
record supports a diagnosis of dementia and therefore, MetLife’s determination that she
is not entitled to a continuation of long term disability benefits was incorrect. MetLife
maintains that its decision to deny Gardner benefits was not arbitrary and capricious, but
based on substantial evidence contained in the record that any cognitive impairments
Plaintiff suffered from were due to her chronic fatigue syndrome and not dementia. After
a thorough examination of the administrative record and applying a deferential standard
of review, I find that MetLife did not act in an arbitrary and capricious manner when it
denied Gardner’s disability benefits after it determined the record did not support a
diagnosis of dementia. Therefore, I will grant MetLife’s motion for summary judgment
and deny Gardner’s motion for summary judgment.
Gardner was employed by Siemens Corporation as a systems analyst until March 7,
2008. (Compl. ¶ 6.) Through Siemens, Gardner was covered by a short term and long
term disability policy that is both administered and funded by MetLife. (Compl. ¶¶ 7, 12.)
Gardner elected “Plan C” of the long term disability (“LTD”) Plan which requires
MetLife to provide up to 66 2/3 % of her predisability earnings per month, up to a
maximum benefit of $16,667. (MET 0013.)
Gardner stopped working due to constant pain, anxiety attacks and fatigue and
was placed on short term disability (“STD”) pursuant to her STD policy. (Compl. ¶¶ 1314.) She was eventually diagnosed with anxiety disorder with panic attacks, adjustment
disorder with mixed anxiety, depressed mood, fibromyalgia and chronic fatigue
syndrome. (Compl. ¶¶ 15, 17.) Gardner received STD benefits from March 10, 2008
through September 5, 2008. (Compl. ¶ 14.) On August 28, 2008, Gardner submitted a
claim for LTD benefits. (Compl. ¶ 23, MET 1313-1327.) On January 23, 2009, MetLife
denied Gardner’s claim for LTD benefits effective September 8, 2008. (Compl. ¶ 24, Ex.
B.) Gardner appealed this denial, and on August 21, 2009, MetLife reversed its decision
and reinstated Gardner’s LTD benefits. (Compl. ¶¶ 25-26, Ex. C.) Gardner then received
LTD benefits from September 8, 2008 to September 5, 2010. (MET 0586-0588.) Under
the plan in question, Gardner’s receipt of LTD benefits was subject to a 24 month
limitation for a disability resulting from “mental or nervous disorder or disease, unless
the disability results from schizophrenia, bipolar disorder, dementia or organic brain
disease.” (Compl, Ex. A, p. 16.) Gardner’s plan also provides the same 24 month
“Limitation for Disabilities” for “chronic fatigue syndrome and related conditions.”
(Compl. Ex. A, p. 17.) 1
On August 16, 2010, MetLife sent Gardner’s counsel a letter stating that, as of
September 5, 2010, Gardner would have received the maximum benefits available to her
under the Plan, as Gardner suffered from a “Mental or Nervous Disorder or Disease,”
which limited her to 24 months of LTD benefits unless her mental disorder fell under an
enumerated exception, which MetLife contended Gardner’s did not. (Compl. Ex. E.) On
November 29, 2010, MetLife sent Gardner a formal denial of benefits letter. (Compl. Ex.
Gardner appealed her denial to MetLife, claiming that she was entitled to continue
receiving LTD benefits beyond the 24 months because she suffered from dementia,
which is a specified exception to the 24 month limitation period under the Plan. Gardner
based her entitlement to benefits upon the March 10, 2009 report of neurocognitive
testing performed by Lawrence Griffin, Ph.D, which diagnosed her with dementia.
(Compl. Ex. H.) On August 9, 2011, MetLife informed Gardner that it was upholding its
decision to terminate her LTD benefits because the medical information did not support a
limited benefit exclusionary diagnosis such as dementia. (Compl. Ex. I.) Gardner filed the
instant civil action on February 3, 2012. Gardner contends that MetLife’s conclusion that
the medical record does not support that she suffers from dementia, a limited benefit
On April 20, 2010, Gardner was awarded Social Security Disability benefits, effective October 10, 2008.
(MET 0589-0594.) MetLife was entitled to, and did receive, an offset from Gardner due to her receipt of
disability benefits. (MET 0794.)
exclusionary diagnosis, was unreasonable. For the reasons that follow, I find that MetLife
did not act arbitrarily in denying Gardner’s claim for LTD benefits.
ERISA STANDARD OF REVIEW
The denial of benefits under an ERISA qualified plan is reviewed using a
deferential standard. Where the plan administrator has discretion to interpret the plan and
to decide whether benefits are payable, the exercise of its fiduciary discretion is judged
by an arbitrary and capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Under this limited and deferential
review, MetLife’s adverse determination may not be reversed unless it was “without
reason, unsupported by substantial evidence or erroneous as a matter of law.” Miller v.
Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011), quoting Abnathya v. HoffmannLaRoche, Inc., 2 F.3d 40, 41 (3d Cir. 1993). 2
In conducting a review under ERISA, courts examine both the structural and
procedural aspects of the decision-making. Miller, 632 F.3d at 845. The structural
inquiry examines whether the structure of the plan is such that there is a financial
incentive to deny claims. Id. The procedural inquiry examines how the claim is
processed by the administrator to insure a fair and impartial procedure. Id. (citations
omitted). The Supreme Court held in Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343
(2008), that an entity’s dual role as claims administrator and insurer creates a structural
conflict of interest that “should be weighed as a factor in determining whether there is an
abuse of discretion.” Id. at 2350 (quoting Firestone Tire & Rubber, 489 U.S. at 115).
Gardner agrees that MetLife’s denial of her LTD benefits should be subject to an arbitrary and capricious
standard of review. (See Pl’s Brief in support of MSJ at pp. 10-11.) In Gardner’s Brief, she states that
“where a plan provides the administrator with discretionary authority to interpret the terms of the plan, as
the Plan does here, then judicial review is limited to determining whether the administrator abused her
discretion.” (Id. at 11.)
This financial conflict of interest remains a factor to consider along with other factors in
determining whether there has been an abuse of discretion. Ellis v. Hartford Life and
Accident Ins. Co., 594 F. Supp.2d 564, 566-67 (E.D. Pa. 2009). Gardner’s argument, in
reliance on Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 387 (3d Cir. 2000),
that MetLife’s adverse determination should be reviewed under heightened scrutiny due
to MetLife’s conflict of interest in administering and funding the Plan is incorrect. The
sliding scale analysis set forth in Pinto and previously used by the Third Circuit has been
superseded by the “combination-of-factors” test set forth by the Supreme Court in Glenn.
In the instant matter, there is no dispute that MetLife, as insurer for the Plan, both
funded and administered the award of disability benefits. Therefore, I shall take this
conflict of interest into account as one factor, no more significant than any other factor, in
determining whether there has been an abuse of discretion in handling Gardner’s claim
for LTD benefits.
In reviewing the administrator’s processing of Gardner’s claim, I must also
review procedural factors, as procedural irregularities in the review process cast doubt on
the impartiality of the administrator. Miller, 632 F.3d at 845; Post v. Hartford Ins. Co.,
501 F.3d 154, 164 (3d Cir. 2007). Gardner argues that MetLife “selectively utilized
information favorable to its decision to deny [her] LTD benefits, to the exclusion of
evidence which would have required it to grant the benefits at issue.” (Pl. Br., p. 12.)
While “self-serving selectivity in the use of evidence” is an irregularity that has been
identified by courts to warrant enhanced scrutiny, see Lamanna v. Special Agents Mut.
Benefits Ass’n, 546 F.Supp.2d 261, 287 (W.D. Pa. 2008), procedural anomalies are but
another factor to be considered under the combination-of-factors method. Miller, 632
F.3d at 845, n.2.
Gardner moves for summary judgment, claiming that MetLife’s decision to deny
her LTD benefits was not reasonable. Defendant MetLife moves for summary judgment
by first claiming that Gardner’s claim is barred because she has failed to exhaust her
administrative remedies. MetLife also argues that it is entitled to summary judgment
because its claim determination was reasonable, consistent with the plan language and
supported by substantial evidence. For reasons set forth below, I will grant MetLife’s
Motion for Summary Judgment and deny Gardner’s Motion for Summary Judgment.
1. Exhaustion of Administrative Remedies
MetLife argues that Gardner failed to exhaust all remedies available to her under
the Plan, and therefore, she is not permitted to bring an ERISA action in federal court. It
is undisputed that administrative exhaustion exists and plaintiffs are required to exhaust
all their plan remedies before filing suit in federal court. Metropolitan Life Ins. Co. v.
Price, 501 F.3d 271, 280 (3d Cir. 2007). I find that Gardner properly exhausted her
administrative remedies as set forth in the Plan, and therefore, the instant action is
properly in federal court.
On August 16, 2010, MetLife sent Gardner a letter informing her that her LTD
benefits would be terminated effective September 5, 2010. (MET 0586-0588.) The
August 16, 2010 letter advised Gardner that she had 180 days from receipt of that letter to
file an administrative appeal to MetLife seeking continued LTD benefits, and that “[i]n
the event [her] appeal [was] denied in whole or in part, [she would] have the right to
bring a civil action under Section 502(1) of the Employee retirement Income Security Act
of 1974.” (MET 0587.) Gardner appeal MetLife’s denial of LTD benefits by letter dated
April 21, 2011. (MET 0638-0644.)
By letter dated August 9, 2011, MetLife upheld on administrative appeal its
original decision to deny Gardner continuing LTD benefits beyond 24 months. (MET
0427-0435.) Like the August 16, 2010, original denial letter, the August 9, 2011 appeal
denial letter advised Gardner that she had 180 days to administratively appeal MetLife’s
decision to affirm its original denial of LTD benefits, and again stated that “[i]n the event
[her] appeal [was] denied in whole or in part, [she would] have the right to bring a civil
action under Section 502(a) of the Employee Retirement Income Security Act of 1974.”
The Plan in question allows that if Gardner makes a claim which is denied by
MetLife, she has the right to appeal that decision within 180 days. (MET 0042.) MetLife
informed Gardner via letter dated August 16, 2010 that it was terminating her LTD
benefits, that she had the right to appeal, and that if her appeal was denied, she had the
right to bring a civil action. MetLife argues that the language contained in this August 9,
2011, denial letter sets forth a requirement for Gardner to administratively appeal
MetLife’s second denial to MetLife directly, wait for another decision from MetLife and
then bring suit under ERISA. Gardner did not file a second administrative appeal, and
instead instituted the instant suit on February 3, 2012.
Based upon the language of the Plan, I find that Gardner properly exhausted her
administrative remedies. The Plan required her to file an administrative appeal of an
adverse decision, which she did pursuant to an April 21, 2011 letter, appealing MetLife’s
August 16, 2010, letter informing her of the termination of her benefits. The Plan then
requires MetLife to issue a final decision, which it did pursuant to its August 9, 2011
letter upholding its decision to deny Gardner’s benefits. MetLife’s August 16, 2010
termination letter clearly instructed Gardner to file an administrative appeal, and also
clearly informed her that if she still disagreed with its determination after that
administrative appeal, she would then have “the right to bring a civil action.” By
attempting to include language in its August 9, 2011, denial letter that would force
Gardner to appeal its denial a second time, MetLife is attempting to impose additional
requirements on Gardner’s appeal rights that are not contemplated by the Plan. MetLife
does not set forth any authoritative basis in the Plan for requiring a second round of
administrative appeals. Furthermore, if including a second appeal requirement in its
August 9, 2011 denial imposes additional exhaustion requirements upon Gardner,
MetLife could keep Gardner’s LTD benefits claim in legal limbo indefinitely by
imposing endless rounds of administrative appeals. Accordingly, I find that Gardner has
properly exhausted her administrative appeals in this matter.
2. Reasonableness of Claims Determination
As stated previously, where an ERISA governed plan grants discretionary
authority to the claims administrator to determine eligibility for benefits, as in this case, a
court reviewing a benefits determination uses an “arbitrary and capricious” standard of
review. Firestone, 489 U.S. at 115. In determining whether a benefits determination is
arbitrary and capricious, the court must evaluate whether the determination was
reasonable. Abnathya, 2 F.3d at 45. After a review of the administrative record, I find
MetLife’s benefits determination was not arbitrary.
In early 2008, Gardner began complaining of constant pain, anxiety attacks, and
fatigue. (MET 0998.) When Gardner stopped working at Siemans in March of 2008, her
diagnoses were adjustment disorder with anxiety disorder and depressed mood, anxiety
disorder with panic attacks, chronic fatigue syndrome, fibromyalgia and hypothyroidism.
(MET 1031-32, 1082, 1308.) Gardner's treating physicians also recognized that she had
cognitive deficits such as memory and focus issues. (MET 0668, 0677, 0695, 0949, 0973,
1031-1032, 1034-35, 1040, 1068-70, 1108, 1110, 1164, 1171, 2101-02.)
On March 10, 2009, Gardner underwent neurocognitive testing with Lawrence R.
Griffin, Ph.D. (MET 0765-0778.) Dr. Griffin found that Gardner suffered from severe
depression and anxiety, along with a range of cognitive deficits. (MET 0778.) Dr. Griffin
also stated that Gardner "meets the criteria for Dementia. This dementia is NOS [not
otherwise specified] but could be related to her physical difficulties." (Id.) Dr. Griffin's
diagnoses were major depressive disorder, general anxiety disorder and dementia, NOS.
On August 17, 2009, during the initial 24 month period when Gardner received
LTD benefits, MetLife had Gardner's medical file reviewed by Gil Lichtschein, M.D., a
psychiatrist. Dr. Lichtschein was asked to determine if Gardner's medical information
supported psychiatric limitations beyond September 8, 2008. (MET 0904-0905.) After
reviewing Gardner's medical records, Dr. Lichtschein found that the records "supported
global psychiatric impairment," and "consistently describe[d] the presence of mood and
anxiety symptoms [with] consistent complaints of and reporting of cognitive deficits that
were significant and likely incapacitating." (MET 0905.) Further, Dr. Lichtschein stated
that Dr. Griffin's testing "demonstrate[d] significant cognitive deficits." (Id.) As
discussed more thoroughly above, Gardner was then told that her LTD benefits would
terminate as of September 6, 2010 pursuant to the Limitation for Disabilities provisions
of the Plan. Gardner appealed MetLife's termination of benefits on the basis that she had
been diagnosed with dementia, which is a limited benefit exclusionary diagnosis.
Thereafter, MetLife had Gardner's file reviewed by two physician consultants: Mark R.
Burns, M.D., Board Certified in Rheumatology and Internal Medicine 3, and John R.
Shallcross, Psy.D., Board Certifed in Neuropsychology.
In the process of reviewing Gardner’s file, Dr. Shallcross spoke with Dr. Griffin
on May 18, 2011. Dr. Shallcross summarized his conversation with Dr. Griffin as
This consultant noted discrepancy between the claimant’s premorbid level
of functioning, having some college education and performing work as a
Systems Analyst and the finding of borderline Full Scale IQ and general
memory score at the 1st percentile. [Dr. Griffin] stated that he had recalled
this and found it “suspicious” at the time. The doctor stated that he would
retrieve the file and call me back after having looked at it. We
subsequently attempted to contact each other and left several voicemails.
On 5/18/11 at 1 p.m. Eastern Daylight Time, Dr. Griffin left a voice
message stating that the scores “seemed valid and there was not a lot of
inconsistency.” He reported a T-score on the depression scale of the
MMPI-2 of 99 and on the Hy scale of 101. Dr. Griffin noted that the
profile overall was elevated.
(MET 0537.) Dr. Shallcross also unsuccessfully attempted to speak with Ms.
MacQueen, Gardner's therapist. Dr. Shallcross noted:
Although a number of treaters have noted cognitive impairment, the
description of such impairment appears to be both brief and
As the instant matter addresses whether Gardner had dementia, a limited benefit exclusionary diagnosis,
which is beyond Dr. Burns’ expertise as an internist, Dr. Burns’ review of Gardner’s file will not be
generic. There is an absence of mental status evaluation or psychometrics,
with the exception of Dr. Griffin's report, by these providers. It is not
apparent whether the cognitive impairment had been directly observed or
was the result of self-report from the claimant. The claimant's therapist,
Ms. MacQueen, in a check-the-box form, notes marked impairment in a
number of areas but her treatment notes are process oriented and do not
support significant impairment of cognition or dementia. The only formal
evaluation of the claimant's cognitive condition is the "Psychological
Appraisal" conducted by Dr. Griffin in March of 2009. This "appraisal" is
not a formal neuropsychological evaluation of the claimant. Only two
neuropsychological instruments were administered, an IQ measure and a
memory test. Although Dr. Griffin indicates that he had diagnosed
dementia on the basis of memory impairment and impairment of executive
functioning, there was no measure of executive functioning (such as the
Wisconsin Card Sorting Test) administered. Although Dr. Griffin stated
that the findings were internally consistent, he acknowledged that the
disparity between the claimant's premorbid history and probable IQ and
the findings of his evaluation were “suspicious.” Despite this, no formal
assessment of test taking effort was administered. The only validity scale
was found on the personality assessment, the MMPI-2, and Dr. Griffin has
acknowledged that this profile was elevated. In fact, the claimant has
reported symptoms of psychosis and impaired reality testing as well as
extreme elevations on the Hy and the D scales. The doctor has indicated
that this could be a “cry for help” but it could equally be a case of
(MET 0539.) Dr. Shallcross further stated that in his opinion:
dementia or other organic impairment has not been conclusively
established for the period of 9/6/10 and beyond. No formal
neuropsychological assessment, apart from the two tests given by Dr.
Griffin a year and a half earlier, has been conducted. Mental status
evaluations are lacking and it is not apparent that the cognitive deficits
reported by the various treaters are not a result of claimant’s self-report. It
is also apparent to this consultant that the very significant discrepancy
between level of premorbid functioning and educational and vocational
history and the scores achieved on the two instruments administered by
Dr. Griffin are at least suspect and that further, more exhaustive,
evaluation would be required.
(MET 0539.) When asked to answer the question whether the medical information
supported continuous psychiatric functional limitations related to dementia from 9/6/10
and beyond, Dr. Shallcross stated that “[a]part from the two cognitive instruments
administered by Dr. Griffin in March 2009, there is little other than probably self-report
to support consideration of dementia or organic brain disease beyond 9/6/10. No current
neuropsychological evaluation was available and the documentation lacks mental status
evaluations, treatment notes, descriptive of observed cognitive impairment, etc. that
would support consideration of a diagnosis of this condition.” (MET 0540.) Lastly, when
asked to comment on why Gardner’s medical information does not support a diagnosis of
dementia, Dr. Shallcross stated:
Basically, the only document containing an evaluation of the claimant’s
neurocognitive status is Dr. Griffin’s report from March of 2009. This is a
brief “appraisal” and does not constitute a neuropsychological evaluation
sufficient for a diagnosis of organic brain disorder and/or dementia.
Despite the fact of there being a “suspicious” differential between
occupational history, education and likely premorbid functioning and the
findings in this evaluation, no test taking effort/validity instruments were
administered for memory or the neurocognitive findings. The doctor states
that the MMPI-2 profile was elevated which he has attributed to a “cry for
help” but could also be an example of symptom exaggeration as several of
the scales were grossly elevated.
(MET 0540.) 4
Dr. Griffin responded to the opinion of Dr. Shallcross on June 17, 2011, stating
that the inconsistencies between Gardner’s “premorbid level of functioning” and his
finding of “borderline Full Scale IQ and general memory score at the 1st percentile” was
in fact, “evidence against malingering” and “consistent with dementia.” (MET 0463.) Dr.
Griffin also stated that “the discrepancy between Ms. Gardner’s above average score on
Vocabulary and her extremely impaired ability to form memory and to retrieve memory
on both the immediate and delayed basis are consistent with dementia. Other than in
It is important to note that Dr. Griffin diagnosed Gardner with dementia in March of 2009, during the
time that she was receiving LTD benefits, before the 24 month elimination period. After March of 2009,
despite much discussion of her cognitive issues, no medical professional had diagnosed Gardner with
dementia, this pattern does not occur.” (MET 0464.) Dr. Griffin also refuted the opinion
of Dr. Shallcross that Dr. Griffin’s testing was “brief” and “generic,” stating that the
testing was comprehensive, took eight hours and was selected from tests not available
publicly in order to provide an accurate diagnosis. (MET 0460-0461) Dr. Griffin also
disagreed with the statement of Dr. Shallcross that it could not be determined whether the
cognitive impairments in question were directly observed or resulted from Gardner’s selfreporting, stating that Gardner’s self-reported impairments were consistent with the
results of his interviews and testing. (MET 0465-0466.)
Dr. Shallcross then responded to Dr. Griffin’s response on July 22, 2011, stating
that his concern with Dr. Griffin’s diagnosis of dementia was “that Dr. Griffin has not
established the validity of the claimant’s test taking performance and the extreme decline
from pre-morbid functioning as a Systems Analyst to an individual with an IQ of 76 and
Memory Index scores in the 0.03-6th percentile is not credible without an established
etiology and concurrent observations,” as “[t]here are suggestions of cognitive
impairment noted by other treaters (without evaluation), but nothing appears in the
documentation to suggest that the claimant was impaired to the degree indicated by Dr.
Griffin’s test findings.” (MET 0447.) 5
After a review of the information contained in Gardner’s file, including her
medical records, the opinions of her treating and evaluating physicians and the reports of
the physician consultants such as Dr. Shallcross, MetLife determined that the medical
As discussed previously, an ALJ with the Social Security Administration found Gardner to be disabled
and granted her application for social security disability benefits. (MET 0589-0594.) The ALJ found that
Gardner had severe impairments in the nature of fibromyalgia, chronic fatigue syndrome and mood
disorder. (MET 0591.) Dr. Shallcross reviewed the decision of the ALJ and found that it did not change his
opinion. (MET 0551.) Specifically, Dr. Shallcross found that the ALJ’s decision did not support functional
limitations from a psychological/neurocognitive perspective. (MET 0551.)
information did not support a limited benefit exclusionary diagnosis such as dementia or
organic brain disease. Specifically, pursuant to a letter dated August 9, 2011, MetLife
advised Gardner as follows:
In completing our appeal review, we have determined that although Ms.
Gardner has medical conditions that you feel rendered her incapable of
working as of September 6, 2010 and meet the criteria for a limited benefit
exclusion diagnosis, the clinical medical evidence contained in Ms.
Gardner’s claim file does not support a limited benefit exclusionary
diagnosis, either mentally or physically. The medical records do not
support a severity of any condition that would preclude Ms. Gardner from
performing her own sedentary occupation as of September 6, 2010.
Benefits must be administered in accordance with the employer’s plan and
that requires that the disability be defined and medically substantiated on a
continuous basis by [Gardner’s] provider with comprehensive and specific
Based on our review there is no clinical medical data supporting a limited
benefit exclusionary diagnosis such as schizophrenia, bipolar disorder,
dementia, organic brain disease, seropositive arthritis, spinal tumors,
malignancy, vascular malformations, radiculopathies, myelopathies,
traumatic spinal cord necrosis, or musculopathies as defined by the Plan.
(MET 0434.) Thereafter, Gardner filed the instant action.
The issue before me is whether, based on the record as discussed above, there was
substantial evidence from which MetLife could have reasonably concluded that Gardner
did not suffer from dementia and therefore, did not meet the criteria for a limited benefit
exclusionary diagnosis under the Plan. MetLife concluded that there was no medical
evidence supporting a diagnosis of dementia. Therefore, I must consider the evidence that
MetLife relied upon in reaching this conclusion in order to determine if it acted
arbitrarily. I have carefully scrutinized the record for potential procedural abnormalities.
Because MetLife relied on the opinion of Dr. Shallcross, a hired consultant, I
must examine how MetLife viewed the conclusion of Dr. Shallcross in comparison with
those of Gardner’s treating and/or evaluating physicians. If MetLife gave undue
deference to the opinion of Dr. Shallcross, a consultant who never examined Gardner, or
gave his opinion substantially more weight than the conclusion of Gardner’s treating
and/or evaluating physicians without a sufficient basis, a procedural anomaly arises.
Kosiba v. Merck & Co., 384 F.3d 58, 67-68 (3d Cir. 2004). If the opinion of Dr.
Shallcross is not founded on reliable evidence, it will not be given conclusive effect.
Addis v. Ltd. Long-Term Disability Program, 425 F.Supp.2d 610, 617 (E.D. Pa. 2006).
MetLife’s determination that Gardner does not suffer from dementia so as to
qualify for continuing LTD benefits is supported by substantial evidence of record. First,
based on the records of Plaintiff’s treating physicians and therapists, Dr. Griffin’s
diagnosis of dementia is unsupported. A review of the records of Gardner’s treating
physicians and therapists shows that they made numerous notes regarding her cognitive
issues, such as memory issues and forgetfulness. (MET 0668, 0695, 0949, 0973, 10681069, 1108, 1110.) Susan Levine, M.D., began treating Gardner in October of 2008. Dr.
Levine’s records document Gardner’s complaints of fatigue, malaise, headaches, sore
throats and cognitive dysfunction, including short term memory loss and diminished
concentration. (MET 1171, 1201, 1168, 1164, 1163.) On August 5, 2009, Dr. Levine
stated that Gardner “had been experiencing daily complaints of malaise, headaches, sleep
problems and cognitive dysfunction. These symptoms are part of the symptom complex
of CFS (chronic fatigue syndrome).” (MET 0973.)
On June 15, 2011, in response to Dr. Shallcross’ report, Gardner’s therapist, Ms.
MacQueen, wrote to MetLife, stating that anxiety and panic attacks can affect cognitive
functioning, and noted Gardner’s “cognitive and memory functioning were limited.”
(MET 0456-0457.) However, Ms. MacQueen also stated that she did not “have the
education or accreditation to assess physical or medical diagnosis.” (MET 0456.)
Both Gardner’s treating physicians and Ms. MacQueen, her therapist, made
numerous references to Gardner’s cognitive impairments; however, none of these treaters
linked her cognitive issues to dementia. To the contrary, Dr. Levine specifically linked
Gardner’s cognitive problems to her CFS and fibromyalgia. From 2008 to 2011, none of
Gardner’s treaters made any reference to the possibility that Gardner’s cognitive issues
could be related to dementia.
Further, MetLife had Griffin’s diagnosis of dementia reviewed by a
neuropsychologist, Dr. Shallcross. Upon reviewing Dr. Griffin’s report and speaking with
Dr. Griffin personally, Dr. Shallcross found that Dr. Griffin’s report was “brief and
generic” and that the medical records did not establish that Dr. Griffin actually observed
Gardner’s cognitive impairments and that his opinion was not just based upon her selfreporting. Dr. Shallcross also noted an “absence of mental status evaluations or
psychometrics with the exception of Dr. Griffin’s report, which was not a formal
neuropsychological evaluation.” Dr. Shallcross expressed further concern that although
Dr. Griffin stated that he had diagnosed dementia on the basis of “memory impairment
and impairment in executive functioning,” there was no measure of executive functioning
such as the Wisconsin Card Sorting Test. Further, Dr. Shallcross pointed out that Dr.
Griffin did not perform a formal assessment of Gardner’s test taking effort, despite
acknowledging that the disparity between Gardner’s premorbid history and the findings
of the evaluation to be suspicious. After his thorough review of Gardner’s file and his
conversation with Dr. Griffin, Dr. Shallcross concluded that “dementia or other organic
impairment has not been conclusively established” from September 6, 2010 and beyond.
Dr. Griffin was given an opportunity to address the issues that Dr. Shallcross
presented with his report. Upon review of the additional information Dr. Griffin
provided in an attempt to refute the issues that Dr. Shallcross found with his opinion, Dr.
Shallcross still found that the documentation contained in Gardner’s file did “not support
functional limitations from a psychological/neurological perspective.” In his final
opinion, Dr. Shallcross again opined that Dr. Griffin’s testing was “brief, narrow in
scope, lacks adequate validity measures, and fails to question a very significant
discrepancy between premorbid and current functioning. . .”
As discussed above, both Gardner’s therapist, Ms. MacQueen and her treating
physician, Dr. Levine, attributed Gardner’s cognitive deficits to her CFS and
fibromyalgia. No one other than Dr. Griffin, a one-time, non-treating evaluator, ever
made a link between Gardner’s cognitive issues and dementia. MetLife found that the
opinion of Dr. Griffin, which was called into question by Dr. Shallcross, was insufficient
to establish a diagnosis of dementia. MetLife chose to credit Dr. Shallcross’ opinion and
the opinions of Gardner’s other treaters who found her cognitive deficits to be related to
CFS over the opinion of the one-time evaluator, Dr. Griffin. There is no evidence that
MetLife ignored the opinion of Dr. Griffin, or refused to credit it. The issues raised by
Dr. Shallcross regarding the deficiencies in Dr. Griffin’s report presented a disagreement
among medical professionals, which “does not amount to an arbitrary refusal to credit.”
Statton v. Dupont De Nemours & Co., 363 F.3d 250, 258 (3d Cir. 2004). Nor did MetLife
give undue deference to the opinion of Dr. Shallcross without a sufficient basis. As
MetLife did not refuse to credit Dr. Griffin’s opinion, but instead chose to rely on the
opinion of Dr. Shallcross over the opinion of Dr. Griffin, this action is not unreasonable.
Dr. Shallcross was Board Certified in Neuropsychology and was well qualified to address
the issues in Dr. Griffin’s opinion regarding Gardner’s alleged dementia. Further, Dr.
Shallcross went to great lengths to effectively set forth the problems he found with Dr.
Griffin’s opinion regarding Gardner’s alleged dementia. Clearly, Dr. Shallcross’ opinion
was founded on reliable evidence and should be given conclusive effect. I find that
MetLife did not selectively utilize evidence. To the contrary, it weighed all relevant
evidence at its disposal and gave conclusive effect to the opinion of Dr. Shallcross rather
than the opinion of Dr. Griffin.
Gardner frequently mentions the fact that her treating providers, as well as Dr.
Lichtenstein and Dr. Shallcross, MetLife consultants, found that she suffers from
cognitive deficits. However, the issue in this case is not whether Gardner has cognitive
deficits. Rather, the issue is whether Gardner is disabled as a result of dementia in order
to be entitled to continuing LTD benefits beyond the 24 month period. Other than Dr.
Griffin in 2009, over 18 months before the September 2010 end of the limitation period,
no treater or evaluator had diagnosed Gardner with dementia. Gardner never received any
treatment for dementia. No physician ever treated Gardner for dementia after Dr.
Griffin’s March of 2009 opinion. When presented with conflicting reports from Dr.
Griffin and Dr. Shallcross, MetLife was not arbitrary and capricious in crediting the
opinions of Dr. Shallcross over Dr. Griffin. It has been stated that “if [a] consultant’s
conflicting opinion is based on reliable evidence, it can support a determination contrary
to that of a treating physician.” Addis v. Limited Long-Term Disability Program, 425
F.Supp.2d 610, 617 (E.D. Pa. 2006). As Dr. Shallcross’ opinion that Gardner does not
suffer from dementia is based upon reliable evidence contained in the administrative
record, it is properly used to support a determination contrary to that of Dr. Griffin, an
MetLife’s determination that Gardner did not suffer from dementia was
reasonable because it was based on the opinion of a qualified professional with support
from the medical records of her treating physicians. Therefore, MetLife’s decision not to
extend her LTD benefits past the 24 month elimination period under the Plan was not
arbitrary and capricious.
The record supports the finding that, as defined in the Plan and reasonably
interpreted by MetLife, Gardner did not suffer from disabling dementia. MetLife’s
conclusions were not arbitrary and capricious. Therefore, the Motion for Summary
Judgment of MetLife is granted and the Motion for Summary Judgment of Plaintiff,
Bonnie Gardner, is denied.
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