Killebrew v. Prudential Insurance Company Of America, The

Filing 44

MEMORANDUM (Order to follow as separate docket entry) re 23 MOTION for Summary Judgment filed by Prudential Insurance Company Of America, The, 26 MOTION for Summary Judgment filed by Renee Killebrew. Signed by Honorable A. Richard Caputo on 4/27/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RENEE KILLEBREW,
CIVIL ACTION NO. 3:15-cv-01415

Plaintiff,
v.

(JUDGE CAPUTO)

THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
Defendant.
MEMORANDUM
Presently before the Court are Cross Motions for Summary Judgment filed by Plaintiff
Renee Killebrew (“Killebrew”) and Defendant The Prudential Insurance Company of America
(“Prudential”). For the reasons that follow, Prudential’s Motion (Doc. 23) will be granted and
Killebrew’s Motion (Doc. 26) will be denied.
I. Factual Background1
A.

The Parties
Plaintiff Renee Killebrew began working for J.P. Morgan Chase Bank, N.A. (“JP

Morgan”) on April 25, 2005, ultimately advancing to the position of vice president and
branch manager. (Plaintiff’s Statement of Facts (“PSOF”) ¶ 27, Doc. 26-1; Defendant’s
1

Local Rule 56.1 requires the nonmoving party's statement of facts to respond to
the numbered paragraphs set forth in the moving party's statement. L.R. 56.1. The
responsive statement “shall include references to the parts of the record that
support the statements.” Id. Plaintiff failed to submit a counterstatement of facts
in response to Defendant’s Motion and accompanying Statement of Facts.
Additionally, Plaintiff’s Statement of Facts in support of her own Motion (Doc.
26-1) contains assertions and conclusions that are unsupported by citations to the
record. See id. Therefore, the Court will adopt Defendant’s Statement of Facts that
are supported by sufficient citations to the record, except for those facts clearly
disputed by Plaintiff with adequate record references. See L.R. 56.1 (“All material
facts set forth in the statement required to be served by the moving party will be
deemed to be admitted unless controverted by the statement required to be served
by the opposing party.”); see also Smith v. Addy, 343 Fed. Appx. 806, 808 (3d Cir.
2009).

Statement of Facts (“DSOF”) ¶ 11, Doc. 25.) Killebrew’s last day of work at JP Morgan
was on January 27, 2012, after being diagnosed with multiple sclerosis (“MS”). (PSOF ¶
27; DSOF ¶ 12; Defendant’s Response to Plaintiff’s Statement of Facts (“DR”) ¶ 27, Doc.
31.) As an employee of JP Morgan, Killebrew participated in the JP Morgan Chase LongTerm Disability Plan (the “Plan”), which provided certain disability insurance benefits to
eligible employees of JP Morgan if certain requirements were satisfied. (DSOF ¶ 1.) JP
Morgan funded the long-term disability component of the Plan through the purchase of a
group long-term disability insurance policy issued by Defendant Prudential. (PSOF ¶ 5.)
JP Morgan is the sponsor of the Plan, and Prudential is the claims administrator. (DSOF
¶ 2.)
B.

The Plan
In order to receive long-term disability (“LTD”) benefits under the terms of the Plan,

a participant must be found to be “disabled.” (PSOF ¶ 6.) Under the Plan, there are two
distinct standards of “disability”: (1) the Regular Occupation standard, and (2) the Any
Gainful Occupation standard. (DSOF ¶¶ 3, 32.) A participant is deemed “disabled” under
the Regular Occupation standard when she:
(1)

Is unable to perform the material and substantial duties of her
regular occupation due to her sickness or injury; and
(2)
Is under the regular care of a doctor; and
(3)
Has a 20% or more loss in her monthly earnings due to that
sickness or injury.
(DSOF ¶ 3.) A participant is deemed “disabled” under the Any Gainful Occupation
standard when, after receiving payments under the Regular Occupation standard for
twenty-four (24) months, Prudential determines that due to the same sickness or injury
the participant is:
(1)
(2)

Unable to perform the duties of any gainful occupation for
which she is reasonably fitted by education, training or
experience; and
Under the regular care of a doctor.

(Id.)
“Material and substantial duties” are defined as duties that “are normally required
for the performance of your regular occupation and cannot be reasonably omitted or
2

modified.” (Id.)
“Regular Occupation” is defined as “the occupation you are routinely performing
when your disability begins. Prudential will look at your occupation as it is normally
performed instead of how the work tasks are performed for a specific employer or at a
specific location.” (Id.)
“Any Gainful Occupation” is defined as “an occupation, including self-employment,
that is or can be expected to provide you with an income within 12 months of your return
to work, that exceeds: 80% of your indexed monthly earnings, if you are working; or 60%
of your monthly earnings, if you are not working.” (Id.)
Under the Plan, the claimant bears the burden of providing proof of disability.
(Doc. 23-2, at 000144. 2) The Plan contains the following proof statement with respect to
making an initial LTD benefits claim submission:
Your proof of claim, provided at your expense, must show:
(a)
(b)
(c)
(d)
(e)
(f)
(g)

That you are under the regular care of a doctor.
Appropriate documentation of your monthly earnings.
The date your disability began.
Appropriate documentation of the disabling disorder.
The extent of your disability, including restrictions and
limitations preventing you from performing your regular
occupation or any gainful occupation.
The name and address of any hospital or institution where you
received treatment, including all attending doctors.
The name and address of any doctor you have seen.

(Id.) The Plan also states that “[f]or your [LTD] claim, [Prudential] may request that you
submit proof of continuing disability, satisfactory to Prudential, indicating that you are
under the regular care of a doctor. In some cases, you will be required to give Prudential
authorization to obtain additional medical information, and to provide non-medical
information . . . as part of your . . . proof of continuing disability.” (Id. at 000144-145.) The
Plan further provides that Prudential may require claimants to be “examined by doctors,

2

Citations to the Administrative Record refer to the last six digits of the bates
numbering.
3

other medical practitioners or vocational experts of [Prudential’s] choice, [and that]
Prudential will pay for these examinations.” (Id. at 000128.) Prudential may also require a
claimant “to be interviewed by an authorized Prudential Representative,” and “[r]efusal to
be examined or interviewed may result in a denial or termination” of a claim. (Id.)
Prudential enumerates several documents concerning the Plan, the content of
which affects the Court’s standard of review in this case.
First, Prudential relies on a document entitled the Health & Income Protection
Program for JP Morgan Chase Bank and Certain Affiliated Companies (the “wrap
document”). (DSOF ¶ 4.) Section 4.2 of the wrap document states in pertinent part:
Benefits under the Program or a Plan will be paid only if the Program
Administrator or its delegate decides in its discretion that a Participant is
entitled to them. The Program Administrator may delegate this authority to .
. . one or more Claims Administrators. . . . The Program Administrator and
its authorized delegate(s) shall perform their duties, and, in their sole
discretion, determine appropriate courses of action in light of the reason
and purpose for which this Program is established and maintained.
(Id.) Section 4.3 of the wrap document states in pertinent part: “W henever benefits under
a Plan or Plan Option are provided under an insurance policy, the Insurer shall be the
designated Claims Administrator for such benefits, and the Program, Program
Administrator and the Committee assumes no liability or responsibility for any coverage
or benefits provided under such Plan or Plan Option.” (Id.) Prudential, as the insurer of
the LTD component of the Plan, is thus defined and designated under the Plan as a
“Claims Administrator” for and over its policy. (PSOF ¶ 21.)
Prudential also identifies the JP Morgan Chase Summary Plan Description
(“SPD”), which states:
The Plan Administrators for the JP Morgan Chase U.S. Benefits Program
have complete authority in his or her sole and absolute discretion to
construe and interpret the terms of the plans and any underlying policies
and/or contracts, including eligibility to participate in the plans.
...
. . . the Plan Administrators have delegated their discretion to decide claims
and appeals to the claims administrators . . .
...
The Plan Administrator has delegated all fiduciary responsibilities and
decisions regarding a claim for a denied benefit under these plans to the
applicable claims administrator.
4

(DSOF ¶ 7.)
Another document, which Prudential identifies as an “additional section at the end
of the Certificate of Coverage,” but instead appears to be part of the SPD (see PSOF ¶
20; DR ¶ 20), states: “The Prudential Insurance Company of America as Claims
Administrator has the sole discretion to interpret the terms of the Group Contract, to
make factual findings, and to determine eligibility for benefits. The decision of the Claims
Administrator shall not be overturned unless arbitrary and capricious.” (Doc. 23-2, at
000156.)
C.

Killebrew’s LTD Benefits Claim
1.

Initial Denial and Appeal Under the Regular Occupation Standard

On or about May 14, 2012, Killebrew filed her claim for LTD benefits based on her
MS diagnosis. (DSOF ¶ 14; PSOF ¶ 27.) In support of her claim, Killebrew submitted
records from Neurology Associates, including records from her neurologist, Dr. Katara,
and diagnostic studies. (DSOF ¶ 15.) Prudential first requested an internal review by
Susan Palermo, R.N. (Id. ¶ 16.) Nurse Palermo noted that the physical exams conducted
by Dr. Katara “consistently noted normal gait w/symmetrical arm swing, no drift or gross
focal weakness with motor testing and EE’s upper/lower extremity strength has been 5/5.”
(Doc. 23-2, at 001592.) Nurse Palermo further noted that Killebrew was “consistently
noted to be alert, oriented w/no indication of lethargy, slurred speech,
balance/coordination abnormalities or an inability of EE to self-administer prescribed
medications. . . .” (Id.) Additionally, Nurse Palermo stated that although Killebrew
complained of not being able to use her right hand, on physical exams she was
consistently found to have 5/5 upper strength with no motor/sensory abnormalities noted.
(Id.) Nurse Palermo concluded that despite Killebrew’s complaints of low energy, sleeping
during the day, and an inability to use her right (dominant) hand, “there is no medical
basis to restrict” her after June 1, 2012. (Id.; see DSOF ¶¶ 16-18.)
Relying on Nurse Palermo’s assessment, Prudential denied Killebrew’s LTD
5

benefits claim on July 30, 2012. (DSOF ¶ 19.) Prudential determined that Killebrew
“would be capable of returning to work full time and [did] not meet the definition of
disability. . . .” (Doc. 23-2, at 001507.) On August 12, 2012, Killebrew filed an appeal of
Prudential’s decision. (PSOF ¶ 30; DR ¶ 30.) Killebrew listed multiple ongoing issues
stemming from her diagnosis that impacted her life, including an inability to drive, severe
exhaustion, and various painful sensations and burnings. (Doc. 23-2, at 000364-365.)
Killebrew also stated that Dr. James Kerrigan, M.D., Killebrew’s treating neurologist, was
the only doctor with whom she discussed her MS treatments, not Dr. Katara. (Id. at
000365; see PSOF ¶ 51.) Attached to the appeal letter was an office note from Dr.
Kerrigan dated August 8, 2012, in which Dr. Kerrigan noted that Killebrew was, inter alia,
“having pain symptoms most persistently in the right hand,” experienced fatigue, and
complained of difficulty focusing. (Doc. 23-2, at 000368.)
In response to Killebrew’s appeal, Prudential requested an independent external
review of the medical evidence. (DSOF ¶ 21.) Prudential contracted with MCMC to
identify a doctor to conduct the review. (Id.) MCMC selected Dr. Michael D. Snyder, M.D.,
board certified in psychiatry and neurology, who conducted the review on September 12,
2012. (Id.) Dr. Snyder’s review included a review of the records from Dr. Katara and Dr.
Kerrigan. (Id. ¶ 22.) Based on the documentation provided, Dr. Snyder found that
Killebrew had some medically necessary restrictions and limitations due to relapsingremitting MS from January 28, 2012 forward. (Doc. 23-2, at 000384.) Dr. Snyder stated
that this condition resulted in “some mild neurological deficits which support some degree
of impairment and warrant restrictions/limitations. . . .” (Id.) However, Dr. Snyder
concluded that these limitations did not prevent Killebrew from engaging in full-time work,
stating:
The claimant is capable of full-time work. Sitting is unrestricted in an eight
hour day. The claimant may stand/walk combined up to two hours in an
eight hour day; there is no limit on the amount of standing/walking at one
time within those two hours. The claimant may lift, carry, push and pull with
the left hand up to 20 pounds occasionally and up to 10 pounds frequently.
The claimant may lift, carry, push and pull with the right hand up to 10
pounds occasionally. The claimant may finger, feel and handle with the right
6

hand rarely (up to [3%] of the workday). As the claimant's ability to
type/keyboard would be expected to be slower, the claimant should be
allowed to work at her own pace and would need five minute breaks after
every 30 minutes of typing/keyboarding. Reaching overhead, at the waist
and below the waist with the right hand is limited to occasionally. . . .
(Id.) Dr. Snyder also found that Killebrew’s complaints regarding her inability to drive long
distances, inability to use her right hand without pain, and inability to perform detailed
mental tasks were not supported by the documentation. (Id. at 000386.)
In connection with her appeal, Prudential also conducted a review of Killebrew’s
occupation. (DSOF ¶ 26.) Vocational rehabilitation specialist Karen Gibson, M.S., C.R.C.,
performed a review of Killebrew’s position and duties on September 17, 2012. (Id.) Ms.
Gibson concluded that the material and substantial duties of Killebrew’s position as a
branch manager were sedentary and required up to 33% of occasional fingering and
frequent handling and reaching. (Id.)
Based on these two reviews, Prudential determined that Killebrew could not
perform the material and substantial duties of her regular occupation as a branch
manager because she had a 3% limitation on fingering and handling with her right hand
and was unable to do bi-manual reaching. (Id. ¶ 27.) As a result, Prudential approved
Killebrew’s LTD benefits claim under the Regular Occupation standard effective July 28,
2012. (Id.)
On January 22, 2013, Prudential requested an addendum medical review from Dr.
Snyder as part of Prudential’s ongoing review of Killebrew’s capacity and prognosis. (Id. ¶
28.) Dr. Snyder reviewed additional medical records from Dr. Kerrigan and Dr. Mullen,
Killebrew’s psychologist. (Id.) Dr. Snyder concluded that Killebrew was:
[L]imited to lifting with the left hand up to twenty pounds occasionally and
ten pounds frequently. She would be limited to lifting with the right hand up
to ten pounds occasionally. She could perform fingering/feeling/handling
with the right hand occasionally and she may require accommodations or
allowances for typing as typing will be slower than normal and she may
require fairly frequent breaks. Reaching in all planes with the right hand
would be limited to occasional. She would have no limitations with the left
hand. [Killebrew] would have no restrictions on sitting. She could stand/walk
up to two hours per day combined.
(Doc. 23-2, at 001239.) Dr. Snyder further opined that “[a]lthough [Killebrew]
7

reports neuropathic pain and sensory disturbance, and restrictions and limitations
are supported, the contention that these symptoms would render her ‘totally
disabled’ is not supported by the medical records. . . . Although [Killebrew]
complains of self-reported cognitive difficulty, there is no clinical documentation of
cognitive impairment in the medical records and thus no evidence of impairment in
this regard.” (Id. at 001240.) Based on this addendum review, Prudential extended
Killebrew’s LTD benefits on January 24, 2013 through the remainder of the
Regular Occupation period of disability, which expired on July 27, 2014. (DSOF ¶
31.)
2.

Social Security Disability Benefits Application and Award

At the encouragement of Prudential, Killebrew applied for social security
disability (“SSD”) benefits in the Fall of 2012 and was referred by Prudential to
Allsup, a social security consulting firm. (PSOF ¶ 34; DR ¶ 34; see Doc. 23-2, at
001176-1178.) The LTD benefits paid out by Prudential are reduced by any SSD
benefits that a claimant receives. (Doc. 23-2, at 001176.) Prudential covered the
fee owed to Allsup for assisting Killebrew with respect to her SSD benefits claim.
(PSOF ¶ 35; DR ¶ 35.) The Social Security Administration (“SSA”) approved
Killebrew’s claim for SSD benefits on August 7, 2014. (PSOF ¶¶ 39-40; DR ¶¶ 3940.) The ALJ found that she “has been under a disability as defined in the Social
Security Act since January 27, 2012, the alleged onset date of disability.” (Doc. 232, at 001472.) The ALJ further concluded that Killebrew’s “medically determinable
impairments could reasonably be expected to produce the alleged symptoms, and
that [Killebrew’s] statements concerning the intensity, persistence and limiting
effects of these symptoms are generally credible.” (Id. at 001470.)
Upon receipt of the SSA’s Notice of Award letter in favor of Killebrew dated
December 9, 2014, which detailed the benefit amounts to be paid to Killebrew but
did not contain the ALJ’s rationale, Prudential m oved to collect its overpayment on
past benefits. (PSOF ¶ 41; DR ¶ 41.) Prudential did not receive the full decision
8

from the ALJ until May 2015. (PSOF ¶ 43; DR ¶ 43.) Killebrew continues to receive
monthly SSD benefits. (PSOF ¶ 44; DR ¶ 44.)
3.

Termination of Killebrew’s LTD Benefits Under the Any Gainful
Occupation Standard

After extending Killebrew’s benefits through the Regular Occupation period,
Prudential requested an internal employability assessment pursuant to Dr. Snyder’s
restrictions as part of its review of Killebrew’s LTD benefits claim under the Any Gainful
Occupation standard, which is triggered after the twenty-four month Regular Occupation
period expires. (DSOF ¶ 32.) Vocational rehabilitation specialist Lindsay Neumann, M.S.
Ed, C.R.C., conducted a review on January 24, 2013 to determine alternative positions
that Killebrew might be able to perform. (Id.) Based on her review of Killebrew’s
experience, credentials, and the restrictions noted by Dr. Snyder, Ms. Neumann
determined that Killebrew could perform three gainful occupations: (a)
Manager–Brokerage Office; (b) Manager–Credit & Collection; and (c) Compliance Officer.
(Id. ¶ 34.) On January 25, 2013, Prudential determined that it would terminate Killebrew’s
LTD benefits under the Any Gainful Occupation standard after the Regular Occupation
standard expired because she could perform gainful occupations that fell within her
restrictions. (Id. ¶ 35.)
On April 14, 2014, Prudential sent Killebrew a letter stating that “[a]fter careful
review we have determined that no benefits are payable beyond July 27, 2014,” which
was the last day of the Regular Occupation period. (Doc. 23-2, at 001537.) T he letter
noted that “[w]hile the above outlined restrictions and limitations are supported, your
reports of neuropathic pain and sensory disturbance rendering you unable to function in
any gainful occupation are not clinically supported.” (Id. at 001539.) As such, Prudential
concluded that the medical record “did not support impairment that would prevent
[Killebrew] from performing material and substantial duties of any gainful occupation.” (Id.
at 001540.)
On April 15, 2014, Prudential referred Killebrew’s file for an updated employability
9

assessment in anticipation of this upcoming benefits termination. (DSOF ¶ 37.) Ms.
Neumann conducted an updated assessment of Killebrew’s restrictions and reached the
same conclusion as to the three alternate gainful occupations. (Id.) Prudential also
referred Killebrew’s file to Nurse McCormack in June 2014 for an updated medical
review. (Id. ¶ 38.) Nurse McCormack reviewed additional medical records from Dr.
Kerrigan and Dr. Mullen, and opined that Killebrew had the same physical limitations as
previously documented by Dr. Snyder in 2013. (Id. ¶¶ 38-39.) Nurse McCormack noted
that there was no evidence that Killebrew’s condition was worsening, that her condition
was stable, and that the cervical and brain imaging showed no additional lesions. (Id. ¶
39.) Based on her review, Nurse McCormack opined that Killebrew maintained the
following restrictions: no lifting with the left hand over twenty (20) pounds occasionally
and ten (10) pounds frequently, no lifting with the right hand over ten (10) pounds
occasionally, fingering and handling with the right hand occasionally, and reaching in all
planes of the right occasionally. (Id. ¶ 40.) The opinion also noted that “[t]here is no
evidence of cognitive impairment. Fatigue is common with MS, however, due to the
subjective nature of this complaint, it is difficult to quantify.” (Doc. 23-2, at 001611.)
On June 27, 2014, Prudential made a final decision to terminate Killebrew’s LTD
benefits under the Any Gainful Occupation standard, effective July 28, 2014. (Id. ¶ 41.)
Prudential informed Killebrew of this decision in a letter explaining its reasoning and
identifying the three alternate gainful occupations dated June 27, 2014. (Id.)
4.

Killebrew’s Appeal of Prudential’s Decision

Killebrew first appealed Prudential’s termination of her LTD benefits on July 23,
2014. (DSOF ¶ 44.) Killebrew did not submit any medical documentation with this appeal.
(Id.) In response, Prudential requested another independent external review. (Id. ¶ 45.)
Prudential again contracted with MCMC, who selected a different reviewer, Dr. Stephen
M. Selkirk, M.D., PhD, and board-certified in psychiatry and neurology. (Id.) Dr. Selkirk
conducted the review on October 14, 2014. (Id.) Dr. Selkirk concluded:
[Killebrew] reports subjective complaint[s] of fatigue, cognitive dysfunction
10

and pain. There is no objective data to support these complaints.
Specifically, there is no formal neuropsychological evaluation to support
cognitive impairment. . . . Furthermore, she notes no difficulty falling asleep
at the encounter with Dr. Katara. This suggests that the pain is not
impairing. If pain was significant, it would be expected to be a factor in her
sleeping. She never mentions a problem with pain contributing to sleep at
any encounter with Dr. Katara. With regards to the reported weakness,
there is no weakness documented on Dr. Katara's examinations. Dr.
Kerrigan on 07/25/2014 reports normal strength and no drift. She has a
normal EMG. She has a stable MRI of the brain, cervical spine and thoracic
spine from 2012 to 2014. Thus, there is no objective evidence to support
any weakness. Her gait is documented as normal on nearly every
encounter. There is no report of falls and no need for a gait assistive
device. There is no consistent documentation of difficulty with fine motor
movements. There is no documentation of incoordination.
(Doc. 23-2, at 001360.) Dr. Selkirk further found that:
With regards to pain, there is no significant escalation in treatment of pain
to support impairing pain. Specifically, there is no referral to pain
management. There is no addition of narcotic pain medication. Although
there is some titration of medication it occurs very slowly, suggesting an
absence of urgency.
(Id. at 001361.) Dr. Selkirk’s review also opined that there was no objective data to
support Killebrew’s complaints of fatigue, concentration issues, muscle spasms, or
urinary incontinence issues. (Id.) Specifically, Dr. Selkirk noted that there was no
formal neuropsychological evaluation to support a claim of cognitive impairment,
Killebrew was not being treated with any anti-spasmotic agents, there was no
documented incidents of spasms on any encounter over a two-year period, and
there was no objective evidence to support a finding that MS caused any bladder
dysfunction.3 (Id.) In summation, Dr. Selkirk concluded that Killebrew “does not
have any medically necessary restrictions and/or limitations from 07/28/2014
forward,” and that “[t]here is no evidence to support any ‘disability.’” (Id. at 001360,
001362; DSOF ¶ 52.) As a result of Dr. Selkirk’s review, Prudential upheld its
decision to terminate Killebrew’s LTD benefits under the Any Gainful Occupation
standard on October 15, 2014. (DSOF ¶ 54.)

3

Dr. Selkirk suggested that Killebrew's obesity and diabetes might be the cause of
any bladder issues she was experiencing. (Doc. 23-2, at 001361.)
11

On April 14, 2015, Killebrew, now represented by counsel, submitted a second
appeal, arguing that Killebrew meets the definition of “disabled” under the Any Gainful
Occupation standard. (Doc. 23-2, at 001394.) Attached to the appeal letter was: (a) an
April 2, 2015 letter by Dr. Kerrigan opining that Killebrew “is totally and permanently
disabled, [and] is unable to consistently work a 40 hour week even in a light duty or
sedentary capacity as a result of” her MS (Doc. 23-2, at 001401); (b) an independent
medical exam (“IME”) report by Dr. David Sirken, D.O., board certified in neurology,
opining that Killebrew’s “functional impairments[,] cognitive dysfunction and mental
fatigue are of such severity so as to prohibit her from performing full-time employment,
even of the sedentary type” (id. at 001406); (c) a March 3, 2014 MRI confirming a
“[p]ersistent small nonenhancing spinal cord lesion suspicious for [MS]” (id. at 001409);
(d) a February 17, 2015 cervical spine MRI which confirmed spinal cord lesions
suspicious for MS (id. at 001412); and (e) a February 17, 2015 brain MRI which
confirmed a “single tiny left mid frontal deep white matter T2 and FLAIR hyperintense
focus consistent with mild chronic microangiopathic changes, MS or Lyme disease” (id. at
001415; see PSOF ¶ 48.). Additionally, Killebrew submitted a personal statement
describing how her MS-related symptoms impacted her life. (PSOF ¶ 54.) By a letter
dated May 11, 2015, Killebrew also provided the ALJ’s decision in her social security
disability case as part of her appeal. (Id. ¶ 49.) Prudential did not interview or otherwise
contact Killebrew during the pendency of her appeal. (Id. ¶ 62; DR ¶ 62.)
In connection with Killebrew’s second appeal, Prudential requested Dr. Selkirk to
conduct a follow-up medical review that considered the additional records Killebrew
submitted along with her appeal letter. (DSOF ¶ 56.) Dr. Selkirk’s report noted that he
reviewed the additional records and documents submitted by Killebrew. (Doc. 23-2, at
001475-1476.) After conducting this follow-up review, Dr. Selkirk opined that his original
opinion had not changed, and that Killebrew did not have any medically necessary
restrictions and/or limitations from July 28, 2014 forward. (Id. at 001477.) Dr. Selkirk
noted that the IME conducted by Dr. Sirken found Killebrew had normal speech and
12

strength, and he reiterated that self-reported complaints of cognitive impairments had not
been verified by objective neuropsychological testing. (Id. at 001476.) Dr. Selkirk also
considered that Dr. Kerrigan’s letter noted that Killebrew has never had an exacerbation
of her MS. (Id.) Dr. Selkirk’s review of the updated MRIs concluded that her MS was
stable, and he reiterated that Killebrew’s disease had been stable “on every MRI in the
medical record.” (Id.) The follow-up review further noted that although fatigue and
cognitive impairment are common in MS patients, they are not “universal feature[s] of the
disease and certainly would not be expected in someone with such minimal MRI disease
burden.” (Id.) Dr. Selkirk stated that the social security ALJ’s rationale did not affect his
previous opinion, and concluded that “[t]here rem ains no evidence of impairment and no
evidence of active neurological disease.” (Id. at 001477.)
In a letter dated June 4, 2015, Prudential inf ormed Killebrew that it was upholding
its decision denying her LTD benefits under the Any Gainful Occupation standard. (DSOF
¶ 60.) The letter outlined Prudential’s reasons for upholding its decision, and specifically
noted that “the medical information provided did not warrant any restrictions or limitations
which would support the need for additional [in person] testing, [Killebrew’s] physicians
had not ordered additional testing, and [Killebrew’s] policy indicates proof of claim is to be
provided at her expense.” (Doc. 23-2, at 001584; see DSOF ¶ 62.) Prudential concluded
that “there is no need for any medically necessary restrictions or limitations as [Killebrew]
presents with a stable gait, stable brain, thoracic, and cervical MRIs, has never had an
exacerbation of her [MS] according to Dr. Kerrigan, and no clinical or radiographic
evidence of any disease process.” (Doc. 23-2, at 001584.)
On July 21, 2015, Killebrew filed the instant lawsuit. (Doc. 1.)
II. Legal Standards
A.

Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the pleadings,
13

depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Wright v. Corning, 679 F.3d
101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.
1995)). A fact is material if proof of its existence or nonexistence might affect the
outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish
that it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec., 83
F.3d 68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact,
summary judgment is appropriate only if the factual dispute is not a genuine one.
Anderson, 477 U.S. at 247-48. An issue of material fact is genuine if “a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248. Where there is a material fact
in dispute, the moving party has the initial burden of proving that: (1) there is no genuine
issue of material fact; and (2) the moving party is entitled to judgment as a matter of law.
See Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir.
2010). The moving party may present its own evidence or, where the non-moving party
has the burden of proof, simply point out to the court that “the nonmoving party has failed
to make a sufficient showing on an essential element of her case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
When considering whether there are genuine issues of material fact, the court is
required to “examine the evidence of record in the light most favorable to the party
opposing summary judgment, and resolve all reasonable inferences in that party's favor.”
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the m oving party has satisfied
its initial burden, the burden shifts to the non-moving party to either present affirmative
evidence supporting its version of the material facts or to refute the moving party's
contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at
256-57. The Court need not accept mere conclusory allegations, whether they are made
14

in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888
(1990).
In order to prevail on a motion for summary judgment, the non-moving party must
show “specific facts such that a reasonable jury could find in that party's favor, thereby
establishing a genuine issue of fact for trial.” Galli v. N.J. Meadowlands Comm'n, 490
F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). Although the non-moving
party’s evidence may be either direct or circumstantial, and “need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler
Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary
judgment, “the judge's function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249.
Finally, “[t]he summary judgment standard does not change when, as here, the
parties have filed cross-motions for summary judgment.” Wimberly Allison Tong & Goo,
Inc. v. Travelers Prop. Cas. Co. of Am., 559 F. Supp. 2d 504, 509 (D.N.J. 2008) (citing
Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987)), aff'd, 352 Fed. Appx. 642
(3d Cir. 2009). “Such motions are no more than a claim by each side that it alone is
entitled to summary judgment. . . .” Transportes Ferreos de Venez. II CA v. NKK Corp.,
239 F.3d 555, 560 (3d Cir. 2001) (internal quotations omitted). Thus, “when presented
with cross motions for summary judgment, the Court must consider the motions
separately, and view the evidence presented for each motion in the light most favorable
to the nonmoving party.” Borrell v. Bloomsburg Univ., 63 F. Supp. 3d. 418, 433 (M.D. Pa.
2014) (internal citations omitted).
B.

ERISA Standard of Review
ERISA provides that a plan participant or beneficiary may bring a suit “to recover

benefits due to him under the terms of his plan, to enforce his rights under the terms of
the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §
1132(a)(1)(B). A claim challenging the termination of benefits brought under §
15

1132(a)(1)(B) “is to be reviewed under a de novo standard unless the benefit plan gives
the administrator or fiduciary discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989). If the plan gives the administrator or fiduciary discretionary authority to make
eligibility determinations, the court reviews such decisions under an “abuse of discretion”
or “arbitrary and capricious” standard of review.4 Viera v. Life Ins. Co. of N. Am., 642 F.3d
407, 413 (3d Cir. 2011). “Whether a plan administrator's exercise of power is mandatory
or discretionary depends upon the terms of the plan.” Luby v. Teamsters Health, Welfare,
& Pension Tr. Funds, 944 F.2d 1176, 1180 (3d Cir. 1991). As explained by the Third
Circuit, “[t]here are no ‘magic words’ determining the scope of judicial review of decisions
to deny benefits, and discretionary powers may be granted expressly or implicitly.” Viera,
642 F.3d at 413. “The plan administrator bears the burden of proving that the arbitrary
and capricious standard of review applies.” Id. (internal quotation marks and citation
omitted).
Thus, when an administrator proves that the terms of the plan grant the
administrator discretionary authority, “trust principles make a deferential standard of
review appropriate, and [the Court] review[s] a denial of benefits under an ‘arbitrary and
capricious’ standard.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)
(internal citations, quotation marks, and alterations omitted). This standard is also applied
to an administrator’s interpretation of the terms of the plan and findings of fact, pursuant
to her authority to interpret such terms or act as a fact-finder. See id.

4

“In the ERISA context, the arbitrary and capricious and abuse of discretion
standards of review are essentially identical.” Miller v. Am. Airlines, Inc., 632
F.3d 837, 845 n.2 (3d Cir. 2011) (citing Howley v. Mellon Fin. Corp., 625 F.3d
788, 793 n.6 (3d Cir. 2010)). Accordingly, the phrase “abuse of discretion” and
“arbitrary and capricious” are often used interchangeably when referring to the
deferential standard of review applicable when an administrator is granted
discretionary authority under the plan. Fleisher v. Standard Ins. Co., 679 F.3d
116, 121 n.2 (3d Cir. 2012).
16

“An administrator's decision is arbitrary and capricious ‘if it is 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. Hoffmann–La
Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)). “An administrator's interpretation is not
arbitrary if it is ‘reasonably consistent with unambiguous plan language.’” Fleisher, 679
F.3d at 121 (quoting Bill Gray Enters. v. Gourley, 248 F.3d 206, 218 (3d Cir. 2001)).
Additionally, under this “extremely deferential” standard, Pinto v. Reliance Standard Life
Ins. Co., 214 F.3d 377, 393 (3d Cir. 2000), overruled on other grounds by Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105 (2008), courts must defer to an administrator’s findings of fact
“when they are supported by ‘substantial evidence.’” Fleisher, 679 F.3d at 121.
“Substantial evidence” is “defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Soubik v. Dir., Office of Workers' Comp.
Programs, 366 F.3d 226, 233 (3d Cir. 2004).
In determining whether a plan administrator acted arbitrarily and capriciously,
courts weigh both structural and procedural factors. The structural inquiry considers
“whether a conflict of interest existed.” Uqdah v. Unum Life Ins. Co. of Am., No. 14-6367,
2015 WL 5572678, at *5 (D.N.J. Sept. 21, 2015) (citing Miller, 632 F.3d at 844-45). W hile
the existence of a structural conflict “may be determinative where the issue is close,”
Fleisher, 679 F.3d at 127 n.6 (citing Estate of Schwing v. The Lilly Health Plan, 562 F.3d
522, 526 (3d Cir. 2009)), courts “consider any structural conflict of interest as one of
several factors.” Viera, 642 F.3d at 413. Additionally, courts must also undertake a
procedural inquiry, which “focuses on how the administrator treated the particular
claimant.” Post v. Hartford Ins. Co., 501 F.3d 154, 162 (3d Cir. 2007), overruled on other
grounds by Estate of Schwing v. Lilly Health Plan, 562 F.3d 522 (3d Cir. 2009).
III. Discussion
On July 21, 2015, Killebrew filed the instant Complaint, raising one count that
alleged Prudential’s decision to terminate her LTD benefits was arbitrary and capricious
under ERISA § 1132(a)(1)(B). (Doc. 1.) Prudential filed its Answer on September 1, 2015.
17

(Doc. 9.) On June 15, 2016, the parties filed Cross Motions for Summary Judgment and
accompanying Statements of Facts. (Docs. 23, 25, 26, & 26-1.) Prudential filed its Brief in
Opposition and Response to Killebrew’s Statement of Facts on July 6, 2016. (Docs. 30 &
31.) Killebrew filed her Brief in Opposition on June 29, 2016, but did not su bmit a
response to Prudential’s Statement of Facts. (Doc. 29.) Prudential filed its Reply Brief on
July 13, 2016. (Doc. 32.) The Motions are ripe for disposition.
A.

Prudential’s Motion for Summary Judgment
In support of its Motion for Summary Judgment, Prudential argues that the Court

should apply the deferential arbitrary and capricious standard of review, and find that
Prudential’s denial of Killebrew’s LTD benefits claim under the Any Gainful Occupation
standard was based on substantial evidence and not an abuse of discretion. (See Doc.
24, at 1.)
1.

The Arbitrary and Capricious Standard of Review Applies

Relying primarily on the Plan documents noted above, Prudential argues that the
Plan expressly grants Prudential discretion to interpret the Plan and decide claim s for
LTD benefits, and therefore its decision to uphold its termination of Killebrew’s LTD
benefits should be reviewed under the arbitrary and capricious standard of review. (See
Doc. 24, at 4-8.) Indeed, another district court f ound these same plan documents “plainly
sufficient” to grant Prudential discretion. See Johnson v. Prudential Co. of Am., No. 2:11cv-664, 2012 WL 5378313, at *4 (S.D. Ohio Oct. 31, 2012) (co ncluding the language in
Section 4.2 of the wrap document was “plainly sufficient to grant [Prudential] discretion”);
see also, e.g., Strott v. Dimensional Inv., LLC Health & Welfare Plan, No. 2:13-cv-1245,
2015 WL 1299773, at *9 (W.D. Pa. Mar. 23, 2015) (finding language in a wrap document
granting Prudential as claims administrator “all discretionary authority and control over
the administration of the Plan and [ ] sole discretionary authority to determine eligibility for
Plan benefits and to construe the terms of the Plan” sufficient to trigger the arbitrary and
capricious standard). The Court agrees, and finds the language in the wrap document
sufficient to “communicate the idea that the administrator not only has broad-ranging
18

authority to assess compliance with pre-existing criteria, but also has the power to
interpret the rules, to implement the rules, and even to change them entirely.” Viera v.
Life Ins. Co. of N. Am., 642 F.3d 407, 417 (3d Cir. 2011). 5
In attempting to dispute the applicable standard of review, Plaintiff asserts that the
Plan itself contains no express grant of discretion to Prudential and argues that the SPD’s
grant is insufficient. (See Doc. 29, at 8-9.) With respect to the SPD, the Supreme Court
has specifically concluded that summary documents “do not themselves constitute the
terms of the plan for purposes of [ERISA] § 502(a)(1)(B).” CIGNA Corp. v. Amara, 563
U.S. 421, 438 (2011) (emphasis in original). Here, however, the plain language in the
actual Plan documents6 grants Prudential discretionary authority. Section 4.2 of the wrap
document states: “Benefits under the Program or a Plan will be paid only if the Program
Administrator or its delegate decides in its discretion that a Participant is entitled to them .
The Program Administrator may delegate this authority to . . . one or more Claims
Administrators.” (Doc. 23-2, at 000014) (emphasis added). This Section further states
that “[t]he Program Administrator and its authorized delegate(s) shall perform their duties,
and, in their sole discretion, determine appropriate courses of action in light of the reason
and purpose for which this Program is established and maintained.” (Id. at 000015)
(emphasis added). Section 4.3 of the wrap document informs that whenever benefits
under a Plan or Plan Option are provided under an insurance policy, as is the case here,
“the Insurer shall be the designated Claims Administrator for such benefits, and the
Program, Program Administrator and the Committee assume[] no liability or responsibility

5

The Third Circuit expressly noted that the following “safe harbor” language
would be sufficient to grant an administrator discretionary authority: “Benefits
under this plan will be paid only if the plan administrator decides in [its]
discretion that the applicant is entitled to them.” Viera, 642 F.3d at 417 (quoting
Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000)).

6

Plaintiff does not dispute that the wrap document constitutes the terms of the Plan.
(See Doc. 29, at 8 (Plaintiff citing to the wrap document and referring to this
document as “[t]he Plan itself”).)
19

for any coverage or benefits provided under such Plan or Plan Option.” (Id.) (emphasis
added).
Therefore, because the claims administrator in this case is Prudential, the Plan
documents clearly grant Prudential discretion to decide whether Killebrew is entitled to
LTD benefits irrespective of the SPD. See Johnson, 2012 WL 5378313, at *4 (concluding
that, regardless of whether the Plan documents “formally effects a delegation from
JPMorgan Chase to Prudential,” the wrap document and plan contract together clearly
demonstrate that such a delegation has in fact occurred); (see also PSOF ¶ 21
(conceding that Prudential is defined and designated as claims administrator under the
Plan).) As such, Prudential has met its burden, and the Court will apply the arbitrary and
capricious standard of review.
2.

Prudential’s Decision to Terminate Killebrew’s Claim for LTD Benefits
Under the Any Gainful Occupation Standard

Killebrew contends that Prudential’s decision to terminate, and ultimately uphold
the termination, of her LTD benefits claim was arbitrary and capricious. Specifically,
Killebrew argues that Prudential failed to: (1) conduct an IME and engage in other
standard claim practices; (2) give any weight to her treating physicians and in-person
examiners; (3) adequately consider the decision of the social security ALJ; and (4)
consider her subjective symptoms. (See Doc. 27, at 7-15; Doc. 29, at 3-8.) Killebrew also
argues that (5) Prudential operated under a structural conf lict of interest that tainted its
decision and should result in a lessening of the deference afforded to its decision. (Doc.
27, at 3-4; Doc. 29, at 3, 5.)
a.

Structural Conflict of Interest

Killebrew is correct that Prudential operated under a structural conf lict of interest in
this case because it “both determines eligibility and then also pays disability benefits.”
Moncak v. Liberty Life Assur. Co. of Boston, No. 3:15-cv-01998, 2017 WL 1196514, at
*10 (M.D. Pa. Mar. 31, 2017) (quoting Swiger v. Hartford, No. 08-cv-1387, 2009 WL
1248080, at *4 (W.D. Pa. Apr. 30, 2009)). Prudential does not dispute the ex istence of
20

this conflict. (See Doc. 30, at 6-7.) However, even when a structural conflict exists, courts
must nevertheless apply the “deferential abuse of discretion standard of review across
the board and consider any conflict of interest as one of several factors in considering
whether the administrator or the fiduciary abused its discretion.” Estate of Schwing v. The
Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009) (citing Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 115 (2008)). This factor is afforded greater weight “where the evidence
suggests a greater likelihood that it affected the decision to deny benefits.” Howley v.
Mellon Fin. Corp., 625 F.3d 788, 794 (3d Cir. 2010). Conversely, “[a]bsent evidence of
bias in this or other cases, the inherent conflict that arises when an insurance company
plan administrator both determines eligibility and then pays disability benefits is not
strong.” Moncak, 2017 WL 1196514, at *10; see Bluman v. Plan Adm'r & Trs. for CNA's
Integrated Disability Program, 491 Fed. Appx. 312, 315 (3d Cir. 2012). Thus, courts
should give this factor an appropriate degree of weight based on how strongly the
evidence indicates that this conflict in fact “infected the particular decision at issue.”
Moustafa v. Reliastar Life Ins. Co., No. 15-2531, 2016 WL 6662685, at *6 (D.N.J. Nov. 8,
2016) (quoting Post v. Hartford Ins. Co., 501 F.3d 154, 164 (3d Cir. 2007)).
Killebrew, however, offers no evidence demonstrating that this structural conflict
had an impact on Prudential’s decision to terminate her LTD benefits. Indeed, Killebrew
essentially admits to the absence of evidence on this point in her Brief. (See Doc. 27, at
4.) As such, the Court recognizes the existence of a structural conflict, but will accord this
factor little weight in evaluating whether Prudential abused its discretion in denying
Killebrew’s claim for LTD benefits under the Any Gainful Occupation standard. See
Moncak, 2017 WL 1196514, at *10.
b.

Procedural Factors

The Court next reviews pertinent procedural factors in assessing whether an
administrator’s decision was arbitrary and capricious. Courts in this Circuit frequently
consider the following factors:
(1) a reversal of a benefits determination without additional evidence, (2) a
21

disregard of opinions previously relied upon, (3) a self-serving selectivity in
the use of evidence or reliance on self-serving paper reviews of medical
files, (4) a reliance on the opinions of non-treating physicians over treating
physicians without explanation, (5) a reliance on inadequate information or
incomplete investigation, (6) failure to comply with the notice requirements
of Section 504 of ERISA, (7) failure to analyze all relevant diagnoses, and
(8) failure to consider plaintiff's ability to perform actual job requirements.
Kosiba v. Merck & Co., No. 98-3571, 2011 WL 843927, at *10 (D.N.J. Mar. 7, 2011)
(citing Miller v. Am. Airlines, Inc., 632 F.3d 837 (3d Cir. 2011)). These factors are nonexhaustive, and those which are relevant will be considered by the Court along with the
pertinent case-specific factors raised by Killebrew.
i.

Prudential’s Termination of Killebrew’s LTD Benefits
Under the Any Gainful Occupation Standard

First, the Court notes that Prudential did not reverse its benefits determination
without additional evidence while operating under the same standard of disability.
Instead, Prudential’s decision to deny Killebrew’s continuing receipt of LTD benefits, and
its subsequent decision to uphold this denial on appeal, were based in large part on an
anticipated change in the definition of “disability” under the Plan–that is, a switch from the
Regular Occupation standard to the Any Gainful Occupation standard. (See DSOF ¶ 41.)
Per the terms of the Plan, the Any Gainful Occupation standard is triggered after a
claimant receives LTD benefits under the Regular Occupation standard for twenty-four
months. (Doc. 23-2, at 000128.) W hereas the Regular Occupation standard is satisfied if
the claimant is unable to perform the “material and substantial duties” of the job she held
prior to her sickness or injury, the more rigorous Any Gainful Occupation standard is met
only if the claimant is unable to perform the duties of “any gainful occupation” for which
she is reasonably fitted due to the same sickness or injury. (Id.) A “[g]ainful occupation
means an occupation, including self-employment, that is or can be expected to provide [a
claimant] with an income within 12 months of [claimant’s] return to work, that exceeds . . .
60% of [claimant’s] monthly earnings, if [claimant is] not working.” (Id. at 000130.)
Accordingly, it is not necessarily unreasonable for an administrator to find that a particular
claimant is eligible for LTD benefits under the Regular Occupation standard yet ineligible
22

for such benefits under the Any Gainful Occupation standard without any new or
additional evidence. Indeed, “[c]ourts in this Circuit have repeatedly upheld an
administrator’s termination of LTD benefits when the test changed from ‘own occupation’
to ‘any occupation’ because the standard for continued payments of benefits is more
rigorous under the ‘any occupation’ test.” Hoch v. Hartford Life & Accident Ins. Co., No.
08-4805, 2009 WL 1162823, at *17 (E.D. Pa. Apr. 29, 2009) (citing cases).
Accordingly, considering the definitional change under the Plan, the Court does
not find that Prudential reversed its earlier benefits decision without any new legitimate
basis. Instead, the Court finds that Prudential’s decision to terminate Killebrew’s
continued receipt of LTD benefits based on the anticipated change to a more “rigorous”
definition of “disability” weighs heavily in favor of Prudential.
ii.

The Opinions of Killebrew’s Treating Physicians

Killebrew contends that Prudential failed to give any weight to the opinions
of her treating physicians and thus acted arbitrarily and capriciously. (Doc. 27, at
12-13; see Doc. 29, at 2-3.) As noted above, in support of her second appeal
challenging Prudential’s decision, Killebrew submitted, inter alia, (a) an April 2,
2015 letter from Dr. Kerrigan, M.D., her treating neurologist, opining that Killebrew
“is totally and permanently disabled, [and] is unable to consistently work a 40 hour
week even in a light duty or sedentary capacity as a result of this condition” (Doc.
23-2, at 001401); and (b) an IME report by Dr. David, Sirken, D.O. and board
certified in neurology, opining that Killebrew’s “functional impairments[,] cognitive
dysfunction and mental fatigue are of such severity so as to prohibit her from
performing full-time employment, even of the sedentary type.” (Id. at 001406).
“ERISA does not require that plan administrators give the opinions of
treating physicians special weight.” Post v. Hartford Ins. Co., 501 F.3d 154, 166
(3d Cir. 2007), overruled on other grounds by Estate of Schw ing v. Lilly Health
Plan, 562 F.3d 522 (3d Cir. 2009). Indeed, the Suprem e Court has instructed that
“courts have no warrant to require administrators automatically to accord special
23

weight to the opinions of a claimant's physician; nor may courts impose on plan
administrators a discrete burden of explanation when they credit reliable evidence
that conflicts with a treating physician's evaluation.” Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 834 (2003); see Addis v. Ltd. Long-Term Disability
Program, 425 F. Supp. 2d 610, 617 (E.D. Pa. 2006), aff’d, 268 Fed. Appx. 157 (3d
Cir. 2008) (“[I]f the consultant's conflicting opinion is based on reliable evidence, it
can support a determination contrary to that of a treating physician. . . .”)
(emphasis added). “[A]n ERISA plan administrator does not abuse its discretion by
resolving conflicts in medical records and concluding that a plaintiff is not
disabled.” Hoch v. Hartford Life & Accident Ins. Co., No. 08-4805, 2009 WL
1162823, at *14 (E.D. Pa. Apr. 29, 2009). Indeed, “[i]t is entirely appropriate for an
administrator to rely on written reports of consultants who have done paper
reviews of a claimant's medical records, even if those reports rebut the opinion of
the treating physicians asserting claimant is disabled.” Giertz-Richardson v.
Hartford Life & Accident Ins. Co., 536 F. Supp. 2d 1280, 1291-92 (M.D. Fla. 2008)
(quoting Hufford v. Harris Corp., 322 F. Supp. 2d 1345, 1359 (M.D. Fla. 2004)).
Here, the record presents conflicting conclusions from medical experts. In
support of her claim on appeal, Plaintiff chiefly relies on three sources of
documents furnished by her doctors: the letter by Killebrew’s treating neurologist,
Dr. Kerrigan; a report provided by an independent medical examiner, Dr. Sirken;
and progress notes from Dr. Sharon Cline, M.D., Killebrew’s family physician. Both
Drs. Kerrigan and Sirken opined that Killebrew is unable to consistently work fulltime, even in a sedentary capacity. (Doc. 23-2, at 001401, 1406.) Notably,
however, Dr. Kerrigan’s letter opines that some of Killebrew’s symptoms “have
improved[,] such as the dexterity of her hand and her balance, but have not
returned back to baseline.” (Doc. 23-2, at 001401.) T he letter further notes that
“[t]o date[,] [Killebrew] has not had a flare up of her MS but, despite medication is
at risk for having exacerbations and the potential for increased disability.” (Id.) As
24

to Dr. Sirken’s IME report, interestingly the report repeatedly refers to Killebrew’s
questionable ability to perform the “material and substantial duties” of her preinjury vocation as a branch manager, despite the fact that the Regular Occupation
standard no longer governs her eligibility to receive LTD benefits. (See id. at
001406.) Indeed, the report concludes that “Mrs. Killebrew’s prognosis regarding
the likelihood of returning to her preinjury, banking career is extremely poor in light
of her extensive medical, neurological, and cognitive conditions when taken in their
totality.” (Id.) However, that was not (and is not) the relevant “disability” inquiry
under the terms of the Plan. Finally, the progress notes of Dr. Cline reported that
although Killebrew complained of fatigue, she was, inter alia, “alert and oriented”
(id. at 001652), and consistently found to be “negative for arthralgia, myalgia, back
pain, [and] muscle cramps,” as well as “negative for weakness, paresthesia,
headache, dizziness, [and] tremor” (id. at 001651, 001653, 001655, 001659,
001661).
On the other side, Prudential primarily relies on independent external
reviews conducted by: Dr. Snyder, board certified in psychiatry and neurology, on
September 12, 2012 and January 22, 2013; Nurse McCormack in June 2014; and
Dr. Selkirk, board certified in psychiatry and neurology, on October 14, 2014 and
May 26, 2015. (DSOF ¶¶ 21, 28, 38, 45, 56.) Additionally , Prudential relies on the
internal employability assessments conducted by Ms. Neuman, a vocational
rehabilitation specialist, on January 24, 2013 and April 15, 2014, which determined
three gainful occupations Killebrew could perform based on her experience,
credentials, and the restrictions outlined by Dr. Snyder. (Id. ¶¶ 32, 37.)
Dr. Snyder’s January 22, 2013 report reiterated certain restrictions and
limitations based on Killebrew’s condition, but opined that there was no support in
the medical records for the contention that Killebrew’s reports of neuropathic pain
and sensory disturbance rendered her “totally disabled.” (Doc. 23-2, at 001239.)
The report further opined that “there is no clinical documentation of cognitive
25

impairment in the medical records and thus no evidence of impairment in this
regard.” (Id.) Dr. Snyder noted his disagreement with Dr. Kerrigan’s opinion that
Killebrew was “totally disabled” due to pain, fatigue, and cognitive defects. (Id. at
001240.)
Nurse McCormack conducted a review in June 2014, which included a
review of additional records submitted by Dr. Kerrigan and Dr. Mullen, Killebrew’s
psychologist. (DSOF ¶ 38.) Nurse McCormack found no evidence of a flare in MS
since Dr. Snyder’s review on January 22, 2013. (Doc. 23-2, at 001610.)
Additionally, Nurse McCormack noted that Dr. Kerrigan opined that his prescribed
treatment regimen was helping and that Killebrew was stable. (Id.) Nurse
McCormack further noted that there was no evidence of additional lesions and no
reported evidence of worsening symptoms. (Id. at 001611.) And with respect to
Killebrew’s claims of fatigue and cognitive impairment, Nurse McCormack noted
“[w]e have no evidence of cognitive impairment to support her c/o poor
concentration,” although “[f]atigue is common with MS, however, due to the
subjective nature of this complaint, it is difficult to quantify.” (Id. at 001610-1611.)
Dr. Selkirk subsequently opined based on updated records that Killebrew
“does not have any medically necessary restrictions and/or limitations from
07/28/2014 forward.” (Id. at 001476.) In his May 26, 2015 follow-up review, Dr.
Selkirk referenced Dr. Sirken’s IME report, noting that Dr. Sirken found Killebrew
had normal speech and strength and that Killebrew’s “gait was stable but slightly
wide based.” (Id.) Dr. Selkirk determined that “this is not impairing in any way,” and
noted that Killebrew did not report any falls and does not require a gait assistive
device. (Id.) Additionally, similar to Dr. Snyder and Nurse McCormack, Dr. Selkirk
opined that Killebrew’s “self-reported cognitive complaints have not been verified
by objective neuropsychological testing[, and] [t]he report of fatigue is not
supported by any objective data.” (Id.) As to the opinion of Dr. Kerrigan, Dr. Selkirk
referenced Dr. Kerrigan’s finding that Killebrew has never had an exacerbation of
26

her MS, and opined that “[t]his is consistent with the MRI reports included in the
new data.” (Id.) Moreover, after reviewing the MRIs that Killebrew submitted with
her second appeal, Dr. Selkirk concluded that “there has nev er been any
documentation of dissemination of her disease in time. It has been stable on every
MRI in the medical record.” (Id.) As such, Dr. Selkirk opined that Killebrew “does
not meet the well established diagnostic criteria for MS.” (Id.) Finally, returning to
Killebrew’s complaints of fatigue and cognitive impairment, Dr. Selkirk opined that
“[a]lthough MS patients can have fatigue and cognitive impairment, it is not a
universal feature of the disease and certainly would not be expected in someone
with such minimal MRI disease burden. There remains no evidence of impairment
and no evidence of active neurological disease.” (Id.)
On the whole, although the conclusions reached by Dr. Snyder, Nurse
McCormack, and Dr. Selkirk conflict with those of Dr. Kerrigan and Dr. Sirken,
there is no reason to suggest that the opinions of the former group were not
“reliable evidence” upon which it was unreasonable for Prudential to base its
decision. Addis, 425 F. Supp. 2d at 617. Indeed, “[i]t is entirely appropriate for an
administrator to rely on written reports of consultants who have done paper
reviews of a claimant's medical records, even if those reports rebut the opinion of
the treating physicians asserting claimant is disabled.” Giertz-Richardson, 536 F.
Supp. 2d at 1291-92 (quoting Hufford, 322 F. Supp. 2d at 1359); see Burell v.
Prudential Ins. Co. of Am., 820 F.3d 132, 139 (5th Cir. 2016) (“None of the health
care providers consulted by Prudential found that [plaintiff] had physical or
cognitive impairments [resulting from MS]. Therefore, Prudential's decision simply
came down to a permissible choice between the position of [the administrator's]
independent medical consultant[s], and the position of [the claimant's physicians],
which does not amount to an abuse of discretion. . . .”) (internal quotation marks
and citation omitted); Schmitz v. Sun Life Assur. Co. of Can., 57 F. Supp. 3d 1095,
1119 (D. Minn. 2014) (“Although [claimant’s treating physicians] opined that
27

multiple sclerosis disabled [claimant] as of July 2008, . . . a plan administrator's
decision is not arbitrary and capricious merely because it rejects the opinion of a
treating physician unless the record does not support the denial. . . . In other
words, [w]hen a conflict in medical opinions exists, the plan administrator does not
abuse his discretion by adopting one opinion, if reasonable, and finding that the
employee is not disabled.”) (internal citations and quotation marks omitted);
Ketterman v. Affiliates Long-Term Disability Plan, No. 08-1542, 2009 WL 3055309,
at *15 (W.D. Pa. Sept. 21, 2009) (finding defendant’s reliance on the conclusions
of its independent physicians was not arbitrary and capricious); Dolfi v. Disability
Reinsurance Mgmt. Servs., Inc., 584 F. Supp. 2d 709, 734-35 (M.D. Pa. 2008)
(“An administrator's reliance on the opinions of its non-treating medical consultants
over the opinions of a claimant's treating physicians . . . does not render its denial
of disability benefits arbitrary and capricious.”).
Additionally, the reports of both Dr. Snyder and Dr. Selkirk specifically
referred to the competing opinions of Killebrew’s physicians regarding Killebrew’s
complaints of fatigue and cognitive impairment and opined that, based on the
medical records provided, those conclusions were not substantiated. Thus, there
is no reason to suggest that these physicians, and by extension Prudential,
completely “ignored” the opinions of Killebrew’s treating physicians. See Eppley v.
Provident Life & Accident Ins. Co., 789 F. Supp. 2d 546, 570-71 (E.D. Pa. 2011)
(noting that the administrator “clearly did not ignore” the treating physician’s
opinion, but instead “simply concluded, upon extensive review of the record, that
such restrictions and limitations were unfounded,” and further crediting the
administrator’s disregard of claimant’s treating physician’s report where
“competing opinions” of qualified experts addressed the treating physician’s
conclusions and opined that those conclusions were unfounded based on the
documented clinical evidence). Rather, the record demonstrates a professional
disagreement between Prudential’s reviewers and Killebrew’s physicians.
28

However, Prudential’s decision to credit Dr. Snyder, Nurse McCormack, and Dr.
Selkirk’s conclusions over those of Killebrew’s treating physicians is not
demonstrative of arbitrary and capricious decision-making. Dolfi, 584 F. Supp. 2d
at 735 (citing Stratton v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 258 (3d
Cir. 2004)); Maciejczak v. Procter & Gamble Co., 3:CV-02-1041, 2006 WL 860150,
at *11 (M.D. Pa. Mar. 31, 2006) (“The medical evidence in this case is sharply
conflicted, and deference to the Trustees' determination in the face of that conflict
must be respected. The fact that [the reviewing physician’s] opinion was reaffirmed
by other outside medical experts decreases concerns that the Trustees' decision
was arbitrary.”) (internal citation omitted).
Moreover, there is no dispute that both Dr. Snyder and Dr. Selkirk are
specialists who are qualified to render opinions on the effects of MS. Cf. Addis,
425 F. Supp. 2d at 616 (finding administrator’s unexplained reliance on opinion of
non-specialist suggestive of procedural bias). “[A]n administrator's reliance on the
opinion of a qualified medical expert demonstrates that its decision was
reasonable.” Dolfi, 584 F. Supp. 2d at 735 (emphasis added).
Furthermore, based on some of the findings of Killebrew’s own treating
physicians, it was not unreasonable for Prudential to decide not to adopt these
physicians’ conclusions as to whether Killebrew was disabled. Notably, Dr.
Sirken’s IME found Killebrew to have normal speech and strength, as well as
stable gait. Moreover, Dr. Sirken's conclusions as to Killebrew’s disability status
appear to have been premised primarily on Killebrew's ability to perform the
material and substantial duties of her pre-illness occupation, which is not the
governing standard under the Plan. Cf. Granville v. Aetna Life Ins. Co., No.
3:14-cv-00211, 2015 WL 9026025, at *7 (M.D. Pa. Dec. 15, 2015) (discrediting
physician's opinion when it applied the wrong standard of disability). Additionally,
Dr. Kerrigan found Killebrew's condition to have improved and noted that she has
never had an exacerbation of her MS. Finally, the progress notes from Dr. Cline
29

consistently found Killebrew negative for “arthralgia, myalgia, back pain, muscle
cramps[,] . . . weakness, paresthesia, headache, dizziness, [and] tremor.”
Considering these findings, the Court cannot say that Prudential abused its
discretion in declining to adopt the conclusions of Killebrew’s treating physicians
that conflicted with those of the reviewing experts.
Accordingly, the Court finds that Prudential’s decision to base its decision
largely on the opinions of Dr. Snyder, Nurse McCormack, and Dr. Selkirk rather
than on the opinions of Killebrew’s treating physicians does not weigh in favor of
finding Prudential to have abused its discretion. Rather, considering the relevant
qualifications of the reviewing physicians and the number of reviews conducted
based on updated records, the Court concludes that this f actor weighs in favor of
Prudential. See Dolfi, 584 F. Supp. 2d at 735.
iii.

Prudential’s Consideration of Killebrew’s Subjective
Complaints

Killebrew contends that Prudential purposefully failed to consider her subjective
complaints and limited its focus to “objective” evidence, despite the fact that the Plan
does not require claimants to present such evidence in order to prove disability. (See
Doc. 27, at 14-15; Doc. 29, at 3.)
In the context of ERISA litigation, “courts have noted the general
inappropriateness of an insurer's dismissal of the claimant's self-reported/subjective
evidence.” Schwarzwaelder v. Merrill Lynch & Co., Inc., 606 F. Supp. 2d 546, 562 (W .D.
Pa. 2009). Specifically, courts have found it unreasonable for an administrator to reject
(1) a claimant’s self-reported evidence where there is no basis for believing it to be
unreliable; and (2) a treating physician’s notes recording plaintiff’s “self-reporting and
subjective observations, or other assertedly ‘subjective’ evidence, where, as here, [] the
applicable Plan does not restrict the type of evidence that may be used to demonstrate
disability.” Id. at 563 (citing cases). However, although “an administrator cannot
automatically disregard subjective complaints, administrators are also not required to
30

automatically give significant weight to all subjective complaints.” Giertz-Richardson v.
Hartford Life & Accident Ins. Co., 536 F. Supp. 2d 1280, 1292 (M.D. Fla. 2008). Indeed,
“where claims as to the existence or degree of subjective pain are unsubstantiated, the
plan administrator has the discretion to disregard them.” Eppley v. Provident Life &
Accident Ins. Co., 789 F. Supp. 2d 546, 572 (E.D. Pa. 2011).
Contrary to Killebrew’s assertions, the record does not demonstrate that Prudential
failed to consider her subjective complaints of fatigue, pain, and cognitive difficulties. Dr.
Snyder’s reviews expressly considered Killebrew’s subjective complaints and concluded
that Killebrew’s condition warranted certain restrictions and limitations. (See Doc. 23-2, at
000384, 001239.) Indeed, in arriving at this set of limitations upon which Prudential
originally based its decision, Dr. Snyder considered, inter alia, office visit notes of Dr.
Kerrigan, office visit notes of Dr. Katara, and Killebrew’s responses to Prudential’s
Activities of Daily Living Questionnaire, which included her complaints of fatigue and
exhaustion in her own words (see Doc. 23-2, at 001222-1223). Likewise, Dr. Selkirk’s
review also considered documentation regarding Killebrew’s subjective complaints. (Id. at
001475-1476.) The gainful occupations identified by the vocational rehabilitation
specialist specifically contemplated Dr. Snyder’s restrictions and limitations, which
considered Killebrew’s subjective complaints. (See id. at 001599-1600, 001604-1605.)
Furthermore, in Prudential’s June 4, 2015 letter to Killebrew ultimately upholding its
termination decision, Prudential expressly noted Killebrew’s subjective complaints, but
explained that “there was no evidence to support any limitations” stemming from these
complaints, “as there was no referral to pain management, no addition of narcotic pain
medications, no difficulty falling asleep, and no clinical evidence to support fatigue,
forgetfulness, concentration, muscle spasm, or urinary incontinence issues.” (Id. at
001584.)
Thus, the record does not indicate that Prudential f ailed entirely to take into
consideration Killebrew’s subjective complaints; rather, the record demonstrates that
Prudential chose to rely on the reviewing experts’ conclusions that the objective clinical
31

evidence did not support Killebrew’s subjective complaints. However, this decision does
not necessarily indicate that Prudential “intentionally” disregarded Killebrew’s subjective
complaints, as Killebrew alleges. See Dolfi v. Disability Reinsurance Mgmt. Servs., Inc.,
584 F. Supp. 2d 709, 735 (M.D. Pa. 2008) (reviewing expert considered the findings of
the claimant’s treating physician concerning her subjective complaints, but the expert’s
“contrary conclusions merely reflect a professional disagreement” upon which it was not
arbitrary and capricious for the administrator to rely); see also Eppley, 789 F. Supp. 2d at
572 (noting the lack of objective evidence substantiating a claimant’s degree of subjective
pain may constitute a “sound basis for discrediting the degree of pain alleged”).
Indeed, the record does not suggest that Prudential withheld documentation
regarding Killebrew’s subjective complaints from the reviewing physicians or that
Prudential considered only objective clinical evidence in arriving at its decision. Instead,
the record demonstrates that Prudential largely relied upon the opinions of the
independent medical experts who found that Killebrew’s subjective complaints were not
substantiated by objective medical data. Under the law, this reliance is not arbitrary and
capricious. See Fortune v. Grp. Long Term Disability Plan for Emps. of Keyspan Corp.,
391 Fed. Appx. 74, 78 (2d Cir. 2010) (finding, in ERISA case involving a claimant
diagnosed with MS, that it was reasonable for the administrator to rely upon expert
opinions finding “little evidence of cognitive dysfunction” despite plaintiff’s “numerous
cognitive complaints”); Giertz-Richardson, 536 F. Supp. 2d at 1292 (concluding, in ERISA
case involving a claimant diagnosed with MS, that it “was not wrong” for administrator to
give less weight to opinions of physicians who found plaintiff could not work based on her
subjective complaints of disabling cognitive symptoms when those “opinions were refuted
by the reports of the independent reviewing physicians”); see also Neptune v. Sun Life
Assur. Co. of Can., No. 10-cv-2938, 2013 WL 5273785, at *12 (E.D. Pa. Sept. 16, 2013)
(noting, where claimant’s treating physicians opined the claimant was disabled based on
his subjective complaints, the administrator “had full discretion to credit the opinions of
the independent doctors who conducted reviews on behalf of” the administrator, which
32

disagreed with the treating physicians’ opinions “based on the normal test results and
lack of evidence identifying any functional impairment”).
Accordingly, this factor does not weigh in favor of finding Prudential’s decision to
have been arbitrary and capricious.
iv.

Prudential’s Decision Not to Conduct an Independent
Medical Examination or Other Diagnostic Testing

Prudential’s decision not to conduct an independent m edical examination or other
diagnostic testing is a factor to consider in determining whether Prudential’s decision was
arbitrary and capricious. Reed v. CITIGROUP INC, 658 Fed. Appx. 112, 115 (3d Cir.
2016). However, “numerous courts in [the Third C]ircuit have held that there is no legal
requirement for a plan administrator to demand an independent medical examination as
part of its review of a claim for disability benefits under an ERISA-governed plan, even if
the plan permits it to do so." Sollon v. Ohio Cas. Ins. Co., 396 F. Supp. 2d 560, 586
(W.D. Pa. 2005) (discussing cases). Indeed, ERISA does not require plan administrators
to perform any physical examinations, Lamanna v. Special Agents Mut. Benefits Ass’n,
546 F. Supp. 2d 261, 296 (W .D. Pa. 2008), and whether an administrator decided to
conduct an in-person or independent examination when it was not required to do so
under the Plan is “simply a factor that informs the Court’s review under the arbitrary and
capricious standard. . . . [An administrator’s] election to rely on a paper records review is
not per se arbitrary and capricious.” Dolfi v. Disability Reinsurance Mgmt. Servs., Inc.,
584 F. Supp. 2d 709, 735 (M.D. Pa. 2008).
Prudential argues correctly that it had no duty to conduct an IME or any other
formal testing. (DR ¶ 56.) Moreover, Prudential contends that MS 7 is not a “purely

7

“Multiple sclerosis is ‘a disease in which there are foci of demyelination of
various sizes throughout the white matter of the central nervous system,
sometimes extending into the gray matter. Typically, the symptoms of lesions of
the white matter are weakness, incoordination, paresthesias, speech disturbances,
and visual complaints. The course of the disease is usually prolonged, so that the
term multiple also refers to remissions and relapses that occur over a period of
33

subjective” condition but instead is verifiable by multiple objective tests and multiple
subjective symptoms. (Doc. 32, at 8-9.) Prudential attempts to distinguish the cases cited
by Plaintiff as involving conditions such as Chronic Fatigue Syndrome (“CFS”) and
Fibromyalgia, the existence and severity of which, it argues, are difficult or impossible to
establish by objective testing alone. (See id. at 8-11.) In so doing, Prudential argues that
there was no need to conduct an IME because “MS is m easurable and diagnosable
based on objective findings,” which, in this case, revealed: Killebrew’s EMG was normal;
her brain, cervical, and thoracic spine MRI findings were stable from 2012-2015; and
there was no objective evidence to support fatigue or any cognitive impairment. (See
Doc. 30, at 13, 17, 19.) Additionally, Killebrew did undergo an IME conducted by Dr.
Sirken, albeit not at the request of Prudential, who noted she was awake, alert, had fluent
speech, stable gait, and no focal weakness, facial asymmetry, ptosis, or dysarthria.8
(Doc. 23-2, at 001405-1406.) The results of this IME were considered by Dr. Selkirk as
part of his follow-up review, upon which Prudential based its decision in large part. While
an IME might have been one prudent course for Prudential to take in light of Killebrew’s
subjective complaints, the Court cannot find that its decision to forgo such an exam in this
case resulted in an arbitrary and capricious decision.
To reiterate, although the Plan permits Prudential to conduct an IME, there is no
requirement that Prudential obtain an IME in order to rebut the opinion of a claimant’s
treating physician. Hufford, 322 F. Supp. 2d at 1359; see Ackaway v. Aetna Life Ins. Co.,
No. 14-1300, 2016 WL 5661724, at *30 (E.D. Pa. Sept. 30, 2016). Additionally , the

many years.’” Porter v. Broadspire & Comcast Long Term Disability Plan, 492 F.
Supp. 2d 480, 487 n.2 (W.D. Pa. 2007) (quoting Doland's Illustrated Medical
Dictionary, p. 1611 (29th ed. 2000)).
8

As previously noted, although Dr. Sirken concluded that Killebrew could not
perform full-time employment, even of the sedentary type, his IME report
repeatedly makes reference to Killebrew’s capacity to perform the “material and
substantial duties” of her regular occupation as a branch manager, which is not the
relevant disability standard. (Doc. 23-2, at 001406.)
34

record indicates that Prudential provided Dr. Selkirk with all relevant documentation,
including Dr. Sirken’s IME report and other documents stemming from recent in-person
evaluations of Killebrew, prior to his follow-up review. Thus, for example, unlike the case
in Esbensen v. Life Insurance Co. of North America, Prudential’s expert reviewer based
his opinion on up-to-date records, including the reports of physicians who examined
Killebrew in person.9 Cf. No. 3:14-cv-1513, 2016 WL 1089160, at *5 (M.D. Pa. Mar. 21,
2016) (finding administrator abused its discretion in denying LTD benefits in reliance on
consultant’s report that was based on “stale” records of a non-treating physician).
Moreover, although Prudential did not conduct its own IME, its termination decision
was informed by observations and findings of physicians who evaluated Killebrew in
person and found that she exhibited, inter alia, normal speech, strength, and gait.
Furthermore, Prudential does not dispute Killebrew’s MS diagnosis (see DR ¶ 27), but
instead disagrees that the evidence she provided demonstrates that she is currently
unable to perform the duties of “any gainful occupation.” See Ackaway, 2016 WL
5661724, at *30 (noting administrator’s decision to forgo IME did not weigh in favor of
finding its decision arbitrary and capricious when the administrator did not dispute the
treating physician’s diagnosis, only whether claimant presented sufficient evidence of
disability under the terms of the Plan). Finally, at bottom, Killebrew is the party with the
burden of proof per the terms of the Plan. The Plan required Killebrew to produce
evidence “satisfactory to Prudential” demonstrating she was in fact disabled under the
9

Plaintiff has not claimed that any of the medical experts who reviewed
Killebrew’s records over the course of her claim–Nurse Palermo, Dr. Snyder,
Nurse McCormack, and Dr. Selkirk–were not supplied with the appropriate
records at the time of his or her review. On this point, Plaintiff only argues that
Prudential did not provide Dr. Selkirk with the ALJ’s opinion prior to his first
review, however, “[t]he burden to supply all documents [Killebrew] wished to be
considered as part of her claim on appeal rested entirely with [Killebrew]–not
with [Prudential].” Hoch v. Hartford Life & Accident Ins. Co., No. 08-4805, 2009
WL 1162823, at *16 (E.D. Pa. Apr. 29, 2009) (citing Fabyanic v. Hartford Life &
Accident Ins. Co., No. 02:08-cv-0400, 2009 WL 775404, at *11 (W.D. Pa. Mar.
18, 2009)); see infra note 12.
35

Any Gainful Occupation standard. Prudential was under no obligation to assist Killebrew
with proving her claim. See Killian v. Hartford Life & Accident Ins. Co., No. 16-1377, 2017
WL 429905, at *14 (E.D. Pa. Jan. 31, 2017) (f inding administrator’s decision to not order
an IME did not weigh in favor of finding that it acted arbitrarily and capriciously because it
was the claimant’s obligation to provide sufficient evidence to support her claim under the
policy).
Accordingly, the Court concludes that Prudential’s discretionary decision to not
order an IME or other diagnostic testing in this case does not suggest that it acted
arbitrarily and capriciously.
v.

Prudential Did Not Disregard Opinions Previously Relied
Upon

The Court notes that Prudential did not disregard opinions that it previously relied
upon in order to arrive at its termination decision. Prudential’s multiple reviewers
consistently found that Killebrew’s medical records did not support a finding of total
disability. (See DSOF ¶¶ 18 (Nurse Palermo finding no basis to restrict Killebrew under
the more generous Regular Occupation standard as of June 1, 2012); 24-25, 28-30 (Dr.
Snyder finding Killebrew could perform full-time work under certain limitations); 39-40
(Nurse McCormack concurring with Dr. Snyder’s limitations); 46, 56 (Dr. Selkirk opining
that Killebrew was not limited and/or restricted from July 28, 2014 onward).) In fact,
whereas Dr. Snyder’s January 22, 2013 review concluded that Killebrew’s condition
warranted certain limitations, Dr. Selkirk’s subsequent reviews based on updated medical
records concluded that Killebrew has no “medically necessary restrictions and/or
limitations from 07/28/2014 forward.” (Doc. 23-2, at 001360, 001476.) Thus, in arriving at
its ultimate decision, Prudential consistently relied upon the opinions of its internal and
independent reviewing experts who consistently concluded that Killebrew’s records did
not support a finding that she was unable to perform any full-time work. Cf. Kosiba v.
Merck & Co., No. 98-3571, 2011 WL 843927, at *20 (D.N.J. Mar. 7, 2011) (explaining
that an administrator’s unexplained decision to disregard information in the medical
36

record that it previously relied upon in arriving at its first finding of total disability
demonstrated arbitrary and capricious decision-making).
vi.

The Award of Social Security Disability Benefits

An award of social security disability benefits is another factor bearing upon a plan
administrator’s decision-making process. See Marciniak v. Prudential Fin. Ins. Co. of Am.,
184 Fed. Appx. 266, 269 (3d Cir. 2006). “However, a Social Security award does not in
itself indicate that an administrator's decision was arbitrary and capricious, and a plan
administrator is not bound by the SSA decision.” Id. Nevertheless, some courts in this
Circuit have found that “if the plan administrator (1) encourages the applicant to apply for
[SSD] payments; (2) financially benefits from the applicant's receipt of Social Security;
and then (3) fails to explain why it is taking a position different from the SSA on the
question of disability, the reviewing court should weigh this in favor of a finding that the
decision was arbitrary and capricious." Kosiba, 2011 WL 843927, at *18 (quoting Curry v.
Eaton Corp., 400 Fed. Appx. 51, 68 (6th Cir. 2010)); see Strott v. Dimensional Inv., LLC
Health & Welfare Plan, No. 2:13-cv-1245, 2015 WL 1299773, at *18-*19 (W .D. Pa. Mar.
23, 2015).
In this case, Prudential encouraged Killebrew to apply for SSD benefits and paid
for Allsup to assist Killebrew with obtaining such benefits. (Doc. 23-2, at 001176.) 10 It is
undisputed that Prudential benefitted financially from Killebrew’s receipt of SSD benefits.
(See DR ¶ 41.) And Prudential’s explanation for why it took a different position from the
SSA on the question of disability proves underwhelming. In its June 4, 2015 letter to
Killebrew upholding its termination of her LTD benefits under the Any Gainful Occupation
standard for the second time, Prudential explained:
We understand Ms. Killebrew has been awarded Social Security Disability
benefits; however, we have conducted a separate, thorough review of all
10

Although Killebrew asserted in her Statement of Facts that she was “required” to
apply for SSD benefits in order to receive her LTD benefits under the Plan, she
failed to support this assertion with an adequate citation to the record. (See PSOF
¶ 34.)
37

the medical records/evidence provided to us and have determined she does
not meet the Group LTD Policy definition of Disability as outlined above.
Please keep in mind that not all disability programs or definitions are alike.
A finding by a Governmental Agency such as Social Security that a person
is disabled does not necessarily mean they qualify under the terms of their
Group Insurance policy. Just as the Government must follow the provisions
of the law in making their determination, we must follow the terms of the
Group Insurance policy.
In conjunction with the review of her LTD claim, a review of her file was
completed by a physician specialist, as outlined above. It does not appear
that the SSA had this information when rendering their determination.
(Doc. 23-2, at 001584.)
First, there does not appear to be much merit to Prudential’s suggestion
that the ALJ applied a materially different definition of “disability” which would
permit a finding of disability for purposes of SSD benefits but preclude such a
finding under the Any Gainful Occupation standard. See Strott, 2015 WL 1299773,
at *16. Indeed, the definition of “disability” relied upon by the ALJ was “the inability
to engage in any substantial gainful activity,” whereas “disability” under the Any
Gainful Occupation standard is defined as the inability “to perform the duties of
any gainful occupation11 for which you are reasonable fitted by education, training
or experience.” (See Doc. 23-2, at 001466; DSOF ¶ 3.) Thus, the Court does not
find that the two definitions of “disability” are materially distinct so as to necessarily
explain why Prudential departed from the ALJ’s decision based on differing
definitions, as its letter implies. See Kosiba, 2011 WL 843927, at *18.
Additionally, Dr. Selkirk’s follow-up medical review, which considered the
ALJ’s decision for the first time,12 does not address the ALJ’s decision other than

11

“Gainful occupation means an occupation, including self-employment, that is or
can be expected to provide you with an income within 12 months of your return to
work, that exceeds . . . 60% of your monthly earnings, if you are not working.”
(DSOF ¶ 3.)

12

Killebrew suggests that Prudential’s failure to consider the ALJ’s rationale prior
to her second appeal indicates arbitrary and capricious decision-making. (See
PSOF ¶ 43.) However, “[t]he burden to supply all documents [Killebrew] wished
38

to note in cursory fashion that the ALJ’s rationale did not alter his previous review
conducted on October 14, 2014. (Doc. 23-2, at 001477.) Curiously , Dr. Selkirk’s
original review stated that the approval of SSD benefits did not alter his opinion,
despite the fact that he admittedly did not have the ALJ’s opinion in his possession
at that time. (Doc. 23-2, at 001477 (noting that the ALJ’s rationale was received on
May 11, 2015); see PSOF ¶ 49.) This calls into question the extent to which Dr.
Selkirk, and by extension Prudential, actually considered the ALJ’s rationale in
arriving at their conclusions.
However, the ALJ’s decision was issued before Dr. Selkirk reviewed the
medical records and furnished his two reports, which opine that Killebrew does not
have any medically necessary restrictions or limitations from July 28, 2014 forward
based on updated medical records, including a cervical spine MRI and brain MRI
taken on February 17, 2015. (Doc. 23-2, at 001476; PSOF ¶ 48.) T hus, there is
legitimacy to Prudential’s explanation that the SSA did not rely on the same
information as Prudential in making its decision.
Accordingly, on the whole, the Court concludes that this factor weighs
slightly in favor of finding that Prudential’s decision was arbitrary and capricious.
Nevertheless, the Court recognizes that “[w]hile the award of Social Security
Disability benefits may be a relevant factor in an administrator's decision, failure to
consider this determination does not render the administrator's decision an abuse

to be considered as part of her claim on appeal rested entirely with
[Killebrew]–not with [Prudential].” Hoch v. Hartford Life & Accident Ins. Co.,
No. 08-4805, 2009 WL 1162823, at *16 (E.D. Pa. Apr. 29, 2009) (citing Fabyanic
v. Hartford Life & Accident Ins. Co., No. 02:08-cv-0400, 2009 WL 775404, at
*11 (W.D. Pa. Mar. 18, 2009)). Indeed, the record indicates that Prudential
attempted to obtain the ALJ’s opinion prior to Killebrew’s second appeal, but
Killebrew failed to fax it to Prudential. (DR ¶ 43.) Regardless, the burden was on
Killebrew to provide Prudential with all relevant documents, and Prudential did
have the ALJ’s rationale prior to issuing its decision to uphold its termination
decision for the second time.
39

of discretion.” Burk v. Broadspire Servs., Inc., 342 Fed. Appx. 732, 738 (3d Cir.
2009).
vii.

Consideration of Killebrew’s Ability to Perform Any
Gainful Occupation

Lastly, the Court notes that Prudential’s decision to term inate Killebrew’s LTD
benefits under the Any Gainful Occupation standard was informed by internal
employability assessments conducted by a vocational rehabilitation specialist. Ms.
Neumann, M.S Ed, C.R.C., considered Killebrew’s education, relevant skills, and the
restrictions outlined by Dr. Snyder, and determined three specific gainful occupations that
Killebrew could perform. (DSOF ¶¶ 32-37.) These alternate positions were noted by
Prudential in its January 25, 2013, June 27, 2014, October 15, 2014, a nd June 4, 2015
letters to Killebrew.13 (Id. ¶¶ 36, 43, 54, 60.) Thus, for example, unlike the case in
Lamanna v. Special Agents Mutual Benefits Ass’n, 546 F. Supp. 2d 261, 297 (W .D. Pa.
2008), in which the administrator made its termination decision without conducting any
“reasonable inquiry” into whether the claimant could return to work, Prudential conducted
an occupational review and employability assessments that inquired into whether
Killebrew could perform either her “regular occupation” or “any gainful occupation,” as
defined by the Plan. Notably, the fact that Prudential reversed its initial termination
decision and found Killebrew disabled under the Regular Occupation standard in light of
an occupational review evidences that Prudential considered these assessm ents on the

13

Prudential’s latter two letters also stated that, in light of Dr. Selkirk’s review of
the updated records, there were no medically necessary restrictions or limitations
which precluded Killebrew from performing either her regular occupation or any
gainful occupation. (Doc. 23-2, at 001566-1567, 001583-1584.) While
Prudential’s decision as to Killebrew’s ability to perform her regular occupation is
arguably in conflict with the previous opinions of Dr. Snyder and Nurse
McCormack, because Killebrew’s continuing receipt of LTD benefits was
predicated exclusively on her ability to prove disability under the Any Gainful
Occupation standard, the Court does not find, and Plaintiff does not argue, that
this ancillary determination has any impact on the instant case.
40

merits, not on a preferred outcome. (See DSOF ¶ 27.)
Therefore, the Court finds that Prudential made a reasonable inquiry into
Killebrew’s ability to perform any gainful occupation, and this factor weighs in favor of
upholding Prudential’s decision.
c.

Weighing of the Factors

In order to decide whether an administrator's termination of benefits is arbitrary
and capricious, courts must consider “several different, often case-specific, factors,
reaching a result by weighing all together.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 855
(3d Cir. 2011) (quoting Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008)). In
conducting this balancing, the Court is guided by the governing principal that it “is not free
to substitute its own judgment for that of the defendants in determining eligibility for plan
benefits.” Orvosh v. Program of Grp. Ins. for Salaried Emps. of Volkswagen of Am., Inc.,
222 F.3d 123, 129 (3d Cir. 2000) (internal quotation marks and citation omitted). The
arbitrary and capricious standard of review is an “extremely deferential” one, allowing the
Court to overturn a claim denial only if it is “without reason, unsupported by substantial
evidence or erroneous as a matter of law.” Pinto v. Reliance Standard Life Ins. Co., 214
F.3d 377, 393 (3d Cir. 2000), overruled on other grounds by Metro. Life Ins. Co. v. Glenn ,
554 U.S. 105 (2008) (internal quotation marks and citation omitted).
Here, the Court gives significant weight to the fact that Prudential’s decision was
based on: a change to a more rigorous definition of disability; independent reviews
conducted by qualified medical experts who considered the appropriate medical
documentation available and the competing opinions of Killebrew’s physicians; and
employability assessments conducted by a vocational rehabilitation specialist based on
the limitations announced by one of Prudential’s independent medical reviewers. Under
the circumstances of this case, the Court ascribes relatively little weight to Prudential’s
decision not to conduct its own IME, its decision not to follow the social security ALJ’s
rationale, and the inherent structural conflict of interest. Viewing all relevant factors as a
whole, the Court finds that Prudential based its decision on substantial ev idence and that
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the structural and procedural factors accompanying this case were not so substantial so
as to otherwise qualify Prudential’s decision as arbitrary and capricious. Accordingly,
Prudential’s Motion for Summary Judgment (Doc. 23) will be granted.
B.

Killebrew’s Motion for Summary Judgment
For the reasons stated above, Prudential’s Motion for Summary Judgment will be

granted. Consequently, for the reasons articulated herein, after reviewing the record and
weighing the relevant factors in a light most favorable to Killebrew, the Court finds that
Prudential’s decision to terminate Killebrew’s LTD benefits was based on substantial
evidence and not arbitrary and capricious as a matter of law. Therefore, Killebrew’s
Motion for Summary Judgment (Doc. 26) will be denied.
IV. Conclusion
“[A] diagnosis [of MS] does not by itself establish disability.” Giertz-Richardson v.
Hartford Life & Accident Ins. Co., 536 F. Supp. 2d 1280, 1293 (M.D. Fla. 2008); see
Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 138 (5th Cir. 2016) (“[A] diagnosis of
MS is not sufficient on its own for [claimant] to qualify for long-term disability benefits
under the Plan.”). Because the language in the Plan conveyed discretionary authority
over LTD benefits eligibility determinations to Prudential, the Court is confined to an
arbitrary and capricious standard of review. Under this “extremely deferential” standard,
the Court concludes that Prudential’s decision was based on evidence that “a reasonable
mind might accept as adequate to support a conclusion.” Soubik v. Dir., Office of
Workers' Comp. Programs, 366 F.3d 226, 233 (3d Cir. 2004). And althoug h some
structural and procedural factors were present, the record, when viewed in a light most
favorable to Killebrew, does not support a finding that Prudential’s decision “was not the
product of reasoned decision-making and substantial evidence.” Miller v. Am. Airlines,
Inc., 632 F.3d 837, 856 (3d Cir. 2011).
Therefore, for the above stated reasons, Prudential’s Motion for Summary
Judgment (Doc. 23) will be granted. Killebrew’s Motion for Summary Judgment (Doc. 26)
will be denied.
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An appropriate order follows.

April 27, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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