Moncak v. Liberty Life Assurance Company of Boston

Filing 29

MEMORANDUM (Order to follow as separate docket entry) re: Doc. 17 and Doc. 20 Motions for Summary Judgment.Signed by Magistrate Judge Joseph F. Saporito, Jr on 3/31/17. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CAROL MONCAK,
Plaintiff,

CIVIL ACTION NO. 3:15-cv-01998

v.

(SAPORITO, M.J.)

LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendant.
MEMORANDUM
This is an action for benefits under the Employment and Retirement
Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. This matter is before
the Court on the parties’ cross-motions for summary judgment. (Doc. 17;
Doc. 20). For the reasons that follow, we will grant the defendant’s motion
and deny the plaintiff’s motion.
I.

BACKGROUND
The material facts of this case are largely undisputed.
The plaintiff, Carol Moncak, worked for Cinram Manufacturing

Company LLC as a DVD Mold Operator. As a full-time non-union
employee of Cinram Manufacturing LLC, she was insured under a group
disability income policy (the “Policy”), bearing policy number GD/GF3-830-

505658-01, issued by the defendant, Liberty Life Assurance of Boston
(“Liberty”), and effective January 1, 2005. (Doc. 10-1). The Policy provides
long-term disability benefits to full-time employees of Cinram (U.S.)
Holdings, Inc. (“Cinram”) and affiliated companies, including Cinram
Manufacturing Company LLC.
Moncak ceased work on February 24, 2010, because of low back and
leg pain. She received short-term disability benefits under the Policy
during a 180-day elimination period1 before becoming eligible for payment
of long-term disability benefits on August 23, 2010. She then received longterm disability benefits for two years under the Policy’s “own occupation”
period of disability coverage. On August 7, 2012, after reviewing Moncak’s
medical treatment records and obtaining a peer review report from a
consulting physician, Liberty issued a determination discontinuing
Moncak’s benefits effective August 23, 2012, on the ground that she was
not disabled under the Policy’s “any occupation” period of disability
“[M]ost disability insurance includes a provision for an ‘elimination
period,’ specifying that benefits are not payable at all unless and until the
insured has been continuously disabled for the specified period. Most
major employers have sick days or similar benefits that operate to keep an
employee’s salary steady during at least some part of the elimination
period . . . .” 12 Steven Pitt et al., Couch on Insurance § 182:10 (3d ed.
2014).
1

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coverage. Moncak pursued an administrative appeal of this decision, which
was denied on March 6, 2013, following additional review of her medical
records by a consulting nurse.
A. The Policy
The Policy provides a general definition of “disability,” which states:
“Disability” or “Disabled” means that during the
Elimination Period and the next 24 months of Disability
the Covered Person, as a result of Injury or Sickness, is
unable to perform the Material and Substantial Duties of
his Own Occupation; and . . . thereafter, the Covered
Person is unable to perform, with reasonable continuity,
the Materials and Substantial Duties of Any Occupation.
(Doc. 10-1, at 12). “‘Own Occupation’ . . . means the Covered Person’s
occupation that he was performing when his Disability . . . began.” (Id. at
15). “‘Any Occupation’ means any occupation that the Covered Person is or
becomes reasonably fitted by training, education, experience, age, physical
and mental capacity.” (Id. at 11). “‘Material and Substantial Duties’ . . .
means responsibilities that are normally required to perform the Covered
Person’s Own Occupation, or any other occupation, and cannot be
reasonably eliminated or modified.” (Id. at 14).
If the covered person is deemed “Disabled” under the Policy, Liberty
is obligated to pay her a monthly benefit equal to 60% of her monthly

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earnings from Cinram, less any other earnings or benefits, such as
workers compensation or Social Security disability benefits. (Id. at 9).
The Policy also provides that “Liberty shall possess the authority, in
its sole discretion, to construe the terms of this policy and to determine
benefit eligibility hereunder. Liberty’s decisions regarding construction of
the terms of this policy and benefit eligibility shall be conclusive and
binding.” (Doc. 10-2, at 24).
B. The Plaintiff’s Disability Claim
Moncak ceased working on February 24, 2010, due to low back and
leg pain. Over the course of the preceding three months, she had presented
to her treating orthopedic surgeon, Alan P. Gillick, M.D., complaining of
increasing and “relentless” back and leg pain, which had been causing her
to miss work intermittently. (Doc. 10-9, at 27; Doc. 10-12, at 11). Moncak
reported “pain radiating down the right leg into the toes and aching in
both legs.” (Doc. 10-9, at 27). Upon physical exam, flexion and extension
caused increased pain, and her straight leg raising was positive for
increased back pain. (Doc. 10-9, at 27; Doc. 10-12, at 11). Based on medical
imaging and a physical examination, Dr. Gillick found “endstage
narrowing of the L5-S1 disk space” and “advanced disk degeneration L5-S1

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with a central protrusion,” and that Moncak “would probably be a
candidate for an L5-S1 fusion.” (Doc. 10-9, at 27; Doc. 10-12, at 11).
On April 20, 2010, Moncak underwent surgery, performed by Dr.
Gillick. (Doc. 10-12, at 13–14). Dr. Gillick performed an anterior
discectomy and interbody fusion, L5-S1, using anterior interbody cage and
bone morphogenetic protein, and a bilateral L5 root decompression,
instrumented L5-S1 fusion using bone morphogenetic protein and right
posterior iliac crest graft. (Id.). She was discharged from the hospital three
days later, on April 23, 2010. (Doc. 10-14, at 27–28). She presented for a
follow-up appointment with Dr. Gillick on June 9, 2010. (Doc. 10-12, at 15).
Dr. Gillick noted that she was “symptomatically doing relatively well” six
weeks out from surgery. (Id.).
On June 24, 2010, Liberty advised Moncak by letter that she had
been determined eligible to receive long-term disability benefits under the
Policy’s “Own Occupation” period of disability, effective upon expiration of
the Elimination Period on August 23, 2010. (Doc. 10-14, at 31–33).
On July 19, 2010, Moncak presented to Dr. Gillick for a follow-up
appointment. (Doc. 10-12, at 16). Dr. Gillick noted that Moncak “is three
months out and seems to be doing extremely well.” (Id.).

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Her exam shows well healed incision, no tenderness. No
swelling, no pain with gentle movements, flexion,
extension with restrictions of the brace. Straight leg
raising is negative. Motor and sensation are normal.
Reflexes are +1 and symmetrical. Good pulses. No skin
changes.
(Id.).
On September 22, 2010, Moncak presented to Dr. Gillick for a followup appointment. (Doc. 10-12, at 17). Dr. Gillick noted that, five months out
from surgery, she was “doing well.” (Id.). Moncak reported “somewhat of
an achy discomfort in her back,” and continued Vicodin use because
without it, “her pain will start to escalate.” (Id.).
Her physical exam shows a healed incision, anteriorly
and posteriorly. There is no tenderness. There is no pain
with gentle flexion and extension type movements within
the restrictions of the brace. Her straight leg raising is
negative. Motor and sensation of the lowers are normal.
Reflexes are +1 and symmetric. Good pulses. No skin
changes.
(Id.). Dr. Gillick advised her to start weaning herself out of the back brace
she had been wearing since the surgery, maintaining a “cautiously
increasing activity level.” (Id.).
On December 1, 2010, Moncak presented to Dr. Gillick for a follow-up
appointment. (Doc. 10-12,at 18). Dr. Gillick noted that, seven months out
from surgery, she was “doing relatively well.” (Id.). Moncak reported that
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she still had “a fair amount of discomfort in her back. Some days she is
good and some days she feels that she is still pretty limited.” (Id.).
Her physical exam shows a well healed incision. There is
no swelling, redness, minimal tenderness. There is some
discomfort with flexion and extension movements. Her
straight leg raising is negative. Motor and sensation of
the lowers are normal. Reflexes are +2 and symmetric.
Good pulses. No skin changes. She again no longer gets
the pain radiation to her legs.
(Id.). Dr. Gillick started her on physical therapy. (Id.). Over the course of
the next six months, Moncak participated in a physical therapy program,
initially meeting with a therapist several days a week.
On February 7, 2011, Moncak presented to Dr. Gillick for a follow-up
appointment. (Doc. 10-12, at 19). Dr. Gillick noted that “[s]ymptomatically
she seems to be doing well. She said she is a bit improved even a little
more from the last visit.” (Id.).
Her physical exam shows a healed incision. There is
minimal tenderness, minimal discomfort with flexion and
extension and rotational movements. Her straight leg
raising in negative. Motor and sensation of the lowers are
normal. Reflexes are +1 and symmetric. Good pulses. No
skin changes.
X-rays show intact instrumentation, good alignment
and good healing. She will finish up the physical therapy/
home exercise program.
(Id.). Dr. Gillick advised her to return for a follow-up appointment in two
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or three months, “hoping at that point that she can consider some type of
modified return to work.” (Id.).
On April 18, 2011, Moncak presented to Dr. Gillick for a follow-up
appointment. (Doc. 10-12, at 20). Dr. Gillick noted that, one year after her
surgery, she was “symptomatically doing reasonably well,” though “she
still has some aching discomfort in her back and a fairly constant aching in
her legs. The aching in her back is actually worse when she walks, but if
she walks with a cart . . . she has no pain at all.” (Id.).
Her physical exam shows healed incisions, anterior
and posterior. There is some posterior midline
tenderness. There is some discomfort with flexion and
extension movements of the lumbar spine. Her straight
leg raising is negative. Motor and sensation of the lowers
are normal. Reflexes are +1 and symmetric. Good pulses.
No skin changes.
X-rays show intact instrumentation, good alignment
and good healing.
(Id.). Dr. Gillick advised Moncak to continue to “cautiously increase her
activity level” and return for a follow-up in six months. (Id.).
On June 1, 2011, Dr. Gillick completed a Liberty Mutual Restrictions
Form, stating that she was recovering from spine surgery, she should
cautiously increase her activity level, she was taking Norco for pain, and
she was not capable of working. (Doc. 10-12, at 3).
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On July 7, 2011, Moncak presented to her treating family physician,
Thomas G. Majernick, D.O., with complaints of constant leg pain despite
her pain medication. (Doc. 10-11, at 36–38). Dr. Majernick noted that
Moncak walked with “a labored gait.” (Id.). He ordered an MRI of the
lumbar spine and an arterial duplex lower extremity bilateral. (Id.).
On July 12, 2011, Moncak underwent the prescribed medical imaging
procedures. (Doc. 10-7, at 23–26; Doc. 10-11, at 46). According to the
radiologist’s report, the MRI revealed:
There are prominent focal concavities at L1 and L2
superior endplates suggesting chronic focal intervertebral
herniations. . . . At L5/S1, there is facet and ligamentum
flavum hypertrophy but no definite canal or foraminal
stenosis. . . . Comparison with prior study shows stable
superior endplate deformities at L1 and L2 and interval
lower lumbar surgical changes.
(Doc. 10-11, at 46). The radiologist concluded: “Changes of interbody and
posterior fusion at L5-S1. Mile levoscoliosis. No [herniated disc] or
significant stenosis. Shallow spondylosis and bulging as above. Stable
chronic superior endplate deformities at L1 and L2.” (Id.). A different
radiologist read the arterial ultrasound, which revealed:
Bilateral resting [ankle/brachial indexes] suggest mild
disease on the right side measuring 0.93 and moderate
disease on the left side measuring 0.88.

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The right lower extremity shows mild atherosclerotic
wall changes. An increase in velocities in the right
common femoral artery and proximal superficial femoral
artery suggests a 50-75% stenosis and a 30-49% stenosis
in the mid superficial femoral artery.
The left lower extremity shows mild atherosclerotic wall
changes. An increase in velocities in the left common
femoral artery suggests a 50-75% stenosis and a 30-49%
stenosis in the proximal superficial femoral artery.
(Doc. 10-7, at 23–26).
On August 8, 2011, Moncak presented to Dr. Majernick for a followup appointment with respect to her leg and back pain. (Doc. 10-11, at 39–
41). Dr. Majernick observed that Moncak walked with “a normal gait for
age.” (Id.). Dr. Majernick referred her to a vascular specialist to assess her
for peripheral vascular disease. (Id.).
On August 15, 2011, Dr. Majernick completed a Liberty Mutual
Restrictions Form, stating that she was “unable to work in any capacity
due to continued back & leg pain” and that she “cannot work due to pain &
medications taken for same.” (Doc. 10-11, at 35).
On September 27, 2011, Moncak presented to a vascular surgeon, Ed
Batzel, M.D., for assessment of her peripheral arterial disease. (Doc. 10-7,
at 21–22). Dr. Batzel noted that she had complaints of “pain in her
bilateral calves, more so on the left than the right, consistent with
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vascular claudication,” which occurs after walking “a couple of blocks and
is somewhat disabling.” (Id.). Based on Moncak’s subjective symptoms, her
medical imaging, and physical examination, Dr. Batzel concluded that:
The patient has a leg pain that I think is multifactorial. I
think the pain that she is getting at rest and when she is
standing is probably due to the lower back or perhaps
some other musculoskeletal problem, but certainly not
vascular. However, when she walks, the pain she gets in
her calf, I think, is vascular claudication. . . . Since it is
mildly disabling, I would make a soft recommendation for
angiography and possible angioplasty or vascular
reconstruction. . . . [T]his is at the present time not a
limb-threatening problem . . . .
(Id.). In the event she did not wish to proceed with angiography and
possible angioplasty, Dr. Batzel advised Moncak to return for a follow-up
in six months with repeat ultrasound studies. (Id.).
On October 19, 2011, Moncak presented to Dr. Gillick for a follow-up
appointment, eighteen months after surgery. (Doc. 10-4, at 44). Dr. Gillick
noted that “[s]ymptomatically she is experiencing discomfort. . . . It is
localized to the right of the midline.” (Id.).
Physical examination really does not show tenderness
over the iliac crest graft site. She has a healed midline
incision. There is no local tenderness. She does get
discomfort with flexion and extension and rotational
movements. Her straight leg raising is negative. Motor
and sensation of the lowers are normal. Reflexes are +1
and symmetric. Good pulses. No skin changes.
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X-rays show intact instrumentation, good healing and
well positioned interbody cage, also with healing.
The etiology of the pain is unclear. She still takes a
fair amount of Vicodin, although she said it is not as
effective as it had been in the past. I suggested maybe
adding some anti-inflammatory and I will see her in six
months again.
(Id.).
On November 14, 2011, Moncak presented to Dr. Majernick for
assessment or treatment of diabetes, high cholesterol, and high blood
pressure. (Doc. 10-7, at 13–15). Dr. Majernick observed that Moncak
walked with “a normal gait for age,” motor strength in her lower
extremities was intact, and her reflexes were symmetric and 3+
bilaterally. (Id.). That same day, Dr. Majernick completed a Liberty
Mutual Restrictions Form, stating that Moncak was “unable to work in
any capacity due to continued back & leg pain” and that she “cannot work
due to pain & medications taken for same—takes Norco [as needed for]
pain.” (Id.).
On February 14, 2012, Moncak presented to Dr. Majernick for
treatment of high blood pressure, high cholesterol, and diabetes, and with
complaints of bilateral back and leg pain. (Doc. 10-6, at 22–24). Moncak
reported bilateral low back pain and “tooth ache” pain on the back of both
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legs. (Id.). Dr. Majernick observed that Moncak walked with “a slightly
atalgic gait for age,” her motor strength in her lower extremities was
intact, and her reflexes were symmetric and 3+ bilaterally. (Id.).
On February 20, 2012, Moncak presented to Dr. Majernick with
disability papers to be filled out, and with complaints of “[c]ontinued low
back pain [that] radiates like tooth ache down [the] back [of] both legs to
knees.” (Id. at 18–20). Dr. Majernick observed that Moncak walked with “a
normal gait for age,” her motor strength in lower extremities was intact,
and her reflexes were symmetric and 3+ bilaterally. (Id.). That same day,
Dr. Majernick completed a Liberty Mutual Restrictions Form, stating that
Moncak was “unable to work in any capacity due to back and leg pain” and
that the “patient is in constant pain.” (Id. at 27).
On May 15, 2012, Moncak presented to Dr. Majernick for follow-up
on her high blood pressure, high cholesterol, and diabetes. (Doc. 10-5, at
38–40). Dr. Majernick observed that she walked with “a normal gait for
age,” her motor strength was intact in her lower extremities, and her
reflexes were symmetric and 3+ bilaterally. (Id.).
On June 25, 2012, Moncak presented to Dr. Gillick for her two-year
post-surgical follow-up appointment. (Id. at 1). Dr. Gillick noted:

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. . . She is symptomatically about the same. She said
she has improved from where she was preoperatively.
She still has enough pain that it is a nuisance. She is
constantly looking for ways to treat the pain. She tries to
stay away from any type of narcotic medication.
Her physical exam shows a well healed incision. There
is no swelling or redness. There is a little bit of
tenderness. She has some discomfort with flexion and
extension movements. Her straight leg raising is
negative. Motor and sensation of the lowers are normal.
Reflexes are +1 and symmetric. Good pulses. No skin
changes.
X-rays show intact instrumentation. She appears to
have a nicely healed fusion. The etiology of the pain is
unclear. Some of the symptoms are suggestive that it
could be at least partially hardware related pain. We did
talk about considering removing her posterior
instrumentation. She is not enthusiastic about additional
surgery. She will consider the option. She does not need
additional X-rays. I will see her back in six months to
check her progress.
(Id.).
On July 5, 2012, Dr. Gillick completed a Liberty Mutual Restrictions
Form, stating that Moncak was unable to work due to constant back pain.
(Id. at 2).
On July 19, 2012, consulting physician C. David Bomar, M.D., a
board-certified orthopedic surgeon, prepared a report at Liberty’s request,
based on Dr. Bomar’s review of Moncak’s medical records. (Doc. 10-4, at
35–38). Dr. Bomar noted his medical opinion:
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The claimant is a 51-year-old woman who underwent
an L5-S1 lumbar fusion in April 2010. The available
records support restrictions of avoidance of lifting more
than about 20 pounds. The records do not support
inability to work full time with these restrictions. The
claimant’s attending physician’s restrictions stated the
claimant had no work capacity. These restrictions are not
supported by the available records.
The claimant is being seen every six months by her
spine surgeon, Dr. Alan Gillick. This is appropriate
follow-up for the claimant’s condition. Some
consideration was given to removal of posterior hardware
from the claimant’s spine. This would be appropriate
treatment if the claimant decides to proceed with that
surgery.
(Id. at 35–36). Dr. Bomar provided his further analysis of the plaintiff’s
medical documentation:
The claimant had a history of low back pain for a
number of years. She was found to have degenerative
disk disease of L5-S1 with a central disk protrusion. She
came under the care of Dr. Gillick who performed an
anterior and posterior L5-S1 fusion in April 2010. The
claimant reported to Dr. Gillick over the following two
years that she was better than preoperatively, but she
continued to have back and leg pain. There was never
any indication of a neurological deficit. Strength and
sensation were reportedly normal at most office visits.
Dr. Gillick’s last office visit with the claimant was on
6/25/12. She had a little tenderness and some discomfort
with spinal motion. X-rays showed a solid fusion. She
was to return in six months.
The claimant has also been followed by her internist,
Dr. Majernick. His examinations over the last two years
have repeatedly shown a normal gait and no neurological
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deficit. At his last report on 5/15/12, she was followed up
for hypertension and diabetes. Examination of the back
and the legs was similar to Dr. Gillick’s findings.
In summary, the claimant had an L5-S1 fusion that
was successful. The reasons for any continued severe
impairment are not evident from the record. The
claimant appears to be doing well with normal gait,
normal strength, and normal sensation. A return to fulltime work with the restrictions discussed initially would
appear to be a reasonable expectation at this time.
(Id. at 36).
On July 19, 2012, Dr. Bomar spoke won the telephone with Dr.
Majernick. (Id. at 32). During that conversation, Dr. Majernick noted that
Moncak “continues to have low back pain requiring regular use of Vicodin,”
and that she “complains of inability to sit for a long time.” (Id.). Dr.
Majernick opined that he “did not think that she can work full time even
at a sit down job due to her symptoms and chronic narcotic use.” (Id.).
On July 26, 2012, Dr. Bomar prepared a brief memorandum on his
attempts to contact Moncak’s treating physicians. (Id. at 29). Dr. Bomar
recounted his phone conversation with Dr. Majernick, and provided his
medical opinion:
The above conversation [with Dr. Majernick] does not
change the conclusions in my initial report. The
claimant’s physical exam findings have been modest and
her fusion was successful. Long term use of a mild
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narcotic such as Vicodin should not prevent regular work
duties. Inability to resume full time light work with
frequent sitting, standing, or walking and occasional
lifting up to 20 pounds is not supported by the records.
Some further evaluation of the claimant’s function may
be considered.
(Id.). Dr. Bomar noted that Dr. Gillick did not respond to his telephone
messages. (Id.).
Finally, Liberty also relied upon a July 31, 2012, vocational skills
report prepared by Jill Brown, an independent vocational case manager
retained by Liberty. The report was based on Moncak’s documented
education and work history, and Dr. Bomar’s medical opinion that Moncak
should avoid lifting more than about 20 pounds. (Doc. 10-4, at 23–25). The
vocational case manager found four alternative sedentary, entry-level
occupations for which Moncak was qualified based on her physical capacity
and her training, education, and experience: Gate Guard, Information
Clerk, Telephone Solicitor, and Order Clerk. (Id. at 24).
Based on the foregoing medical and vocational evidence, Liberty
determined that Moncak was not disabled under the Policy’s “any
occupation” period of coverage, and therefore it terminated payment of
long-term disability benefits effective August 22, 2012. (Doc. 10-4, at 19–22
(initial benefits denial letter); Doc. 10-3, at 45–50 (denial of administrative
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appeal).
C. Disputed Facts
The primary fact dispute concerns whether Liberty properly credited
the medical opinion of Liberty’s consulting physician, Dr. Bomar, over
those of Moncak’s treating physicians. In particular, Moncak contends that
Liberty unreasonably rejected: (a) Dr. Gillick’s opinion that Moncak is
unable to work due to constant back pain; and (b) Dr. Majernick’s opinion
that Moncak is unable to work full time even at a sit-down job due to her
symptoms and chronic narcotic use.
The plaintiff also disputes whether Liberty properly credited Brown’s
vocational skills report, which the plaintiff argues is facially unreasonable.
In particular, the plaintiff notes that the vocational case manager never
met or spoke with Moncak, and that she relied exclusively on Dr. Bomar’s
medical opinion.
II.

PROCEDURAL HISTORY
Moncak initiated this action by filing a complaint in the Court of

Common Pleas of Lackawanna County on September 14, 2015. (Doc. 1-2).
Liberty removed the action to this Court on October 15, 2015. (Doc. 1).
Liberty answered the complaint on October 22, 2015. (Doc. 3). The

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administrative record was filed on December 21, 2015. (Doc. 10). The
parties consented to having a United States magistrate judge conduct all
proceedings in this case, including trial, the entry of final judgment, and
all post-trial proceedings, and the case was reassigned to the undersigned
on January 15, 2016. (Doc. 11). The parties filed cross-motions for
summary judgment on March 4, 2016. (Doc. 17; Doc. 20). These motions
are fully briefed and ripe for decision.
III.

STANDARD OF REVIEW
A. The ERISA Standard of Review
A claim challenging the termination of benefits brought under

ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), “is to be reviewed under a
de novo standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989).
Whether a plan administrator’s exercise of power is
mandatory or discretionary depends upon the terms of
the plan. There are no “magic words” determining the
scope of judicial review of decisions to deny benefits, and
discretionary powers may be granted expressly or
implicitly. However, when a plan is ambiguous, it is
construed in favor of the insured. The plan administrator
bears the burden of proving that the arbitrary and
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capricious standard of review applies.
Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 2011) (internal
citations and quotation marks omitted).
In this case, there is no dispute as to the applicable standard of
review. The parties agree that the plan at issue reserves discretionary
authority to the plan administrator, Liberty.
When a plan grants its administrator such discretionary
authority, trust principles make a deferential standard of
review appropriate, and we review a denial of benefits
under an “arbitrary and capricious” standard.2 Likewise,
when an administrator acts pursuant to her authority to
construe the terms of the plan, or to act as a finder of
facts, we also apply the arbitrary and capricious standard
when reviewing those interpretations and factual
findings.
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120–21 (3d Cir. 2012) (internal
footnotes, citations, quotation marks, and alterations omitted). “An
administrator’s decision is arbitrary and capricious if it is without reason,

“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). Accordingly, the terms
“arbitrary and capricious” and “abuse of discretion” are often used
interchangeably in Third Circuit ERISA case law. See, e.g., Fleisher v.
Standard Ins. Co., 679 F.3d 116, 121 n.2 (3d Cir. 2012).
2

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unsupported by substantial evidence, 3 or erroneous as a matter of law.”
Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011) (internal
quotation marks omitted).
Finally, “[i]n determining whether an administrator abused its
discretion, we must consider any structural conflict of interest as one of
several factors.” Viera, 642 F.3d at 413; see also Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 115–16 (2008); Firestone, 489 U.S. at 115. In this
case, it is beyond dispute that such a conflict of interest exists, as Liberty
“both evaluates claims for benefits and pays benefit claims.” See Glenn,
554 U.S. at 112. The parties do appear to dispute, however, the
significance or severity of the conflict in this case. See id. at 115.
B. The Summary Judgment Standard
Also applicable here is the standard of review pertaining to summary
judgment motions. Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment should be granted only if “there is no genuine dispute
In the ERISA context, “substantial evidence” is “defined as such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Fleischer, 679 F.3d at 121 (internal quotation marks
omitted). Moreover, “[w]hen reviewing an administrator’s factual
determinations, [the court may] consider only the evidence that was before
the administrator when he made the decision being reviewed.” Id. at 121
(internal quotation marks omitted).
3

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as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of material fact is “genuine” only if the evidence “is such
that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all
inferences “should be drawn in the light most favorable to the non-moving
party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell
Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The

party

seeking

summary

judgment

“bears the

initial

responsibility of informing the district court of the basis for its motion,”
and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported by
the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52.
“The rule is no different where there are cross-motions for summary

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judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.
2008).
Cross-motions are no more than a claim by each side that
it alone is entitled to summary judgment, and the
making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other
is necessarily justified or that the losing party waives
judicial consideration and determination whether
genuine issues of material fact exist.
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). 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) (citation
omitted). “[E]ach movant must demonstrate that no genuine issue of
material fact exists; if both parties fail to carry their respective burdens,
the court must deny [both] motions. Quarles v. Palakovich, 736 F. Supp. 2d
941, 946 (M.D. Pa. 2010) (citing Facenda v. N.F.L. Films, Inc., 542 F.3d
1007, 1023 (3d Cir. 2008)).
IV.

DISCUSSION
A. The Defendant’s Motion for Summary Judgment
Liberty has moved for summary judgment.
Under ERISA, “benefits determinations arise in many different
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contexts and circumstances, and, therefore, the factors to be considered
will be varied and case-specific.” Estate of Schwing v. Lilly Heath Plan,
562 F.3d 522, 526 (3d Cir. 2009) (citing Glenn, 554 U.S. at 116–18). For
example, “[i]n Glenn, factors included procedural concerns about the
administrator’s decision making process and structural concerns about the
conflict of interest inherent in the way the ERISA-governed plan was
funded.” Id. at 526 (citing Glenn, 54 U.S. at 118); see also Engel v.
Jefferson Pilot Fin. Ins. Co., Civil Action No. 08-240 Erie, 2009 WL
3166513, at *15 n.6 (W.D. Pa. Sept. 28, 2009) (identifying other casespecific factors); Swiger v. Hartford, No. 08cv1387, 2009 WL 1248080, at
*4 (W.D. Pa. Apr. 30, 2009) (same). “In such instances, any one factor will
act as a tiebreaker when the other factors are closely balanced, the degree
of closeness necessary depending upon the tiebreaking factor’s inherent or
case-specific importance.” Glenn, 554 U.S. at 117.
In this case, Moncak’s challenge to the plan administrator’s decision
denying benefits boils down to four factors: (1) the conflict of interest
inherent in Liberty’s dual role as both administrator and payor of long-

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term disability claims;4 (2) whether a non-examining consulting physician
retained by Liberty to review Moncak’s medical records was subject to an
inherent conflict of interest because he was paid by Liberty to perform that
review; (3) whether Liberty improperly rejected medical opinions by
Moncak’s treating physicians in favor of a conflicting medical opinion by a
non-examining consulting physician; and (4) whether Liberty reasonably
relied upon a vocational skills report prepared by a vocational case
manager who never met or spoke with Moncak, and which relied solely on
the medical opinion of Dr. Bomar.
1. Dual-Role Conflict of Interest
It is undisputed that there is a structural conflict of interest at issue
in this case. Liberty “both determines eligibility and then also pays
disability benefits.” See Swiger, 2009 WL 1248080, at *4. The question,
however, is how much weight that conflict bears in evaluating whether
Liberty abused its discretion in denying disability benefits.

This particular issue is only touched upon by the parties in their
briefs, with their energies largely focused on whether Dr. Bomar’s opinion
is tainted by inherent bias and whether Liberty improperly discounted the
opinions of Moncak’s treating physicians. Nevertheless, we find it
necessary to address the structural conflict due to its role in determining
the appropriate level of deference to Liberty’s exercise of discretion.
4

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Generally, a conflict of interest
should prove more important (perhaps of great
importance) where circumstances suggest a higher
likelihood that it affected the benefits decision, including,
but not limited to, cases where an insurance company
administrator has a history of biased claims
administration. It should prove less important (perhaps
to the vanishing point) where the administrator has
taken active steps to reduce potential bias and to promote
accuracy, for example, by walling off claims
administrators from those interested in firm finances, or
by imposing management checks that penalize
inaccurate decisionmaking irrespective of whom the
inaccuracy benefits.
Glenn, 554 U.S. at 117.
Absent 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. See
Swiger, 2009 WL 1248080, at *4. This inherent structural conflict is the
only evidence in the record before the Court to support affording any
weight at all to Liberty’s dual-role conflict of interest, and it is
significantly outweighed by unrebutted evidence submitted by Liberty to
demonstrate that it “has taken active steps to reduce potential bias and to
promote accuracy,” including, for example, the separation of its claims
administration personnel and its underwriting/premium personnel into

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separate divisions located in separate offices in different cities and states
from one another, and the active use of management checks to identify and
evaluate inaccurate decision-making irrespective of whom the inaccuracy
benefits. (Doc. 25 ¶¶ 8–11). See Glenn, 554 U.S. at 117.
Accordingly, based on the record before the Court, viewed in the light
most favorable to the non-moving plaintiff, we find this Liberty’s dual-role
conflict of interest should be given little weight in evaluating whether
Liberty abused its discretion in its denial of disability benefits under the
Policy’s “any occupation” period of coverage.
2. Consulting Physician’s Inherent Bias or Conflict
Moncak contends that, as an employee of Liberty, Dr. Bomar is
subject to inherent bias or a conflict of interest that influenced him to
issue an opinion favorable to Liberty. The unrebutted evidence of record,
however, establishes that Dr. Bomar is not an employee of Liberty. Rather,
he is a private-practice orthopedic surgeon who has contracted as a
consultant to review medical records and provide his medical opinion to
Liberty, and that he is paid an hourly rate for his consulting services,
based solely on the time worked and not the substance of any opinions he
has provided. (Doc. 25 ¶ 7; Doc. 25-1).

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Other than the fact that Dr. Bomar is paid an hourly rate to provide
his consulting services to Liberty, Moncak has adduced no other evidence
of bias or conflict. As our sister court has observed:
We do not assume that merely because a doctor is paid by
the insurance company, he will cast aside his oath to the
medical profession, disregard a plaintiff’s medical
evidence and render judgment in favor of the insurance
company because of a financial incentive. Without any
evidence to suggest the aforementioned behavior
occurred, we do not believe such a[] presumption by the
court is warranted.
Connor v. Sedgwick Claims Mgmt. Servs., Inc., 796 F. Supp.2d 568, 589
(D.N.J. 2011). Indeed,
it would be reasonable to assume that most, if not all,
medical consultants and reviewers used by ERISA plan
administrators . . . are paid for their services. Unless
there is proof of actual impropriety, such as reviewers
receiving financial incentives to specifically deny or delay
claims, the mere fact that reviewers receive payment for
their services is not enough to give rise to an inference of
conflict.
Zurawel v. Long Term Disability Plan for Choices Eligible Emps. of
Johnson & Johnson, Civil Action No. 07-5973 (FLW), 2010 WL 3862543, at
*12 (D.N.J. Sept. 27, 2010) (citation omitted, emphasis in original); see also
Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 814 (7th Cir. 2006) (“The
fact that a plan administrator has compensated physicians for their

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consulting services is not, in and of itself, sufficient to establish a conflict
of interest . . . . [T]here is no reason to assume independent consultants
are not impartial when evaluating medical records.”); O’Conner v. PNC
Fin. Servs. Grp., Inc., Civil Action No. 15-5051, 2016 WL 2941196, at *7
(E.D. Pa. May 20, 2016) (quoting Zurawel); Connor, 796 F. Supp. 2d at
589–90 (quoting Semien and Zurawel). It is also worth noting “the very
real possibility that a treating physician may, in a close case, favor a
finding for his patient. Thus, without some corroborating evidence of bias,
there is no more reason to doubt the veracity of a consulting physician
than to doubt the veracity of a treating physician.” Murray v. JELD-WEN,
Inc., Civil Case No. 3:11-CV-2302, 2013 WL 126323, at *5 (M.D. Pa. Jan. 9,
2013).
Accordingly, based on the record before the Court, viewed in the light
most favorable to the non-moving plaintiff, we find that Dr. Bomar’s
purported bias or conflict due to payment for his consulting services should
be given no weight in evaluating whether Liberty abused its discretion in
its denial of disability benefits under the Policy’s “any occupation” period
of coverage.

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3. Treatment of Medical Evidence
Moncak contends that Liberty unreasonably rejected medical
opinions by her treating physicians that she was disabled and unable to
work, and improperly credited the opinion of a non-examining consulting
physician over that of her treating physicians.
As the Supreme Court of the United States has held, ERISA plan
administrators
may not arbitrarily refuse to credit a claimant’s reliable
evidence, including the opinions of a treating physician.
But . . . courts have no warrant to require administrators
automatically to accord special 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 also
Klaassen v. Allstate Cafeteria Plan, 637 F. Supp. 2d 272, 280 (M.D. Pa.
2007).
a. Dr. Gillick’s Opinion
Dr. Gillick, Moncak’s treating orthopedic surgeon, opined that she
was unable to work due to constant back pain. He never provided any
opinion on Moncak’s specific physical limitations. He never pointed to any
particular medical findings to support his opinion that she was unable to
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work. Meanwhile, in his most recent treatment notes, his objective
findings suggest only modest limitations, documenting “a little bit of
tenderness,” “some discomfort” with flexion and extension movements,
negative straight leg raising, normal motor and sensation in Moncak’s
lower extremities, and normal and symmetric reflexes. He characterized
the fusion as “nicely healed.” He noted Moncak’s admission that her
condition had improved from prior to the operation, and that her pain was
“a nuisance.” He noted that “”[t]he etiology of the pain is unclear,” possibly
partially caused by the hardware implanted in her spine, but he ordered
no x-rays and indicated no need to follow up sooner than six months.
Under these circumstances, it was not an abuse of discretion for Liberty to
credit the opinion of its consulting physician over that of Dr. Gillick. See
Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 47–48 (3d Cir. 1993)
(holding administrator did not abuse its discretion in deferring to the
opinions of two consulting physicians over conclusory opinion of treating
physician that claimant was “disabled”). Moreover, it was reasonable for
Liberty to discount Dr. Gillick’s opinion given that he neither provided an
adequate explanation for his opinion nor made a reasonable effort to
return phone calls from Dr. Bomar when he sought to discuss Moncak’s

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medical condition with him. See Gibson v. Hartford Life & Accident Ins.
Co., Civil Action No. 2:06-CV-38144-LDD, 2007 WL 1892486, at *13 (E.D.
Pa. June 29, 2007).
b. Dr. Majernick’s Opinion
Dr. Majernick, Moncak’s treating internist, opined that she was
unable to work at any job due to constant back pain and due to her use of
narcotic pain medication. Dr. Majernick too failed to provide any opinion
on Moncak’s specific physical limitations. He likewise never pointed to any
particular medical findings to support his opinion that she was simply
unable to work. As noted by Dr. Bomar in his report, Dr. Majernick’s
treatment notes repeatedly documented normal or nearly normal gait,
normal strength, normal sensation, and normal reflexes. On the telephone
with Dr. Bomar, Dr. Majernick referenced Moncak’s use of narcotic pain
medication. In response, Dr. Bomar noted in his memorandum that
Moncak’s “use of a mild narcotic such as Vicodin should not prevent
regular work duties.” Under these circumstances, it was not an abuse of
discretion for Liberty to credit the opinion of its consulting physician over
that of Dr. Majernick. See Abnathya, 2 F.3d at 47–48.

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c. Conclusion
Moncak has argued that Liberty’s rejection of medical opinions by
treating physicians Dr. Gillick and Dr. Majernick in favor of the conflicting
medical opinion by non-examining consulting physician Dr. Bomar
constitutes an abuse of discretion. But based on the foregoing, it was
reasonable for Liberty to credit the conflicting opinion of Dr. Bomar over
Dr. Gillick’s and Dr. Majernick’s opinions. As a consequence, the treatment
of Moncak’s treating physicians’ medical opinions weighs significantly in
favor of Liberty.
4. Vocational Skills Report
The plaintiff contends that Liberty unreasonably relied upon the
vocational skills report prepared by Jill Brown. An ERISA plan
administrator “may reasonably rely on its vocational experts to help it
identify alternate occupations, but it is not rational to defer to such
experts in the absence of a threshold indication that their conclusions . . .
are the product of reliable principles and methods applied reliably to the
facts of the case.” Havens v. Continental Cas. Co., 186 Fed. App’x 207, 213
(3d Cir. 2006) (internal quotation marks and ellipses omitted). Here, the
record contains a detailed vocational skills report noting the several

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standard vocational resources relied upon by the vocational case manager,
as well as the particular sources of information from Moncak’s own file
regarding her physical capabilities and her education and work
experience. (See Doc. 10-4, at 23–25). Moreover, it is clear that she has
referenced only Dr. Bomar’s 20-pound lifting limitation because that is the
only physical limitation identified by any of the medical opinions in the
record—Dr. Gillick and Dr. Majernick have opined that Moncak is unable
to work, but they have declined to specify any particular limitations in any
of their medical opinions, even though the several Restriction Forms they
prepared expressly solicit an opinion on exertional limits. Meanwhile,
Moncak points us to no evidence in the record that Brown’s report is
anything other than the “product of reliable principles and methods
applied reliably to the facts of the case.” While she may disagree with the
suitability of the alternate occupations identified, it cannot be said that
Liberty was arbitrary or capricious in relying on Brown’s vocational skills
report.
Accordingly, based on the record before the Court, viewed in the light
most favorable to the non-moving plaintiff, we find that the purported
unreasonableness or unreliability of Brown’s vocational skills report

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should be given no weight in evaluating whether Liberty abused its
discretion in its denial of disability benefits under the Policy’s “any
occupation” period of coverage.
5. Weighing the Factors
To decide whether Liberty’s determination was arbitrary and
capricious, the Court must take an accounting of all the case-specific
factors and reach a result by weighing all of them together. See Miller, 632
F.3d at 855 (citing Glenn, 554 U.S. at 117). Here, the factor of Liberty’s
dual-role conflict of interest is given little weight, as Liberty is responsible
for both benefit determinations and payment of benefits, but it has also
taken active steps to reduce potential bias and to promote accuracy. The
factors of Dr. Bomar’s purported bias or conflict due to payment for his
consulting services and the purported unreasonableness or unreliability of
Brown’s vocational skills report are given no weight. Liberty’s treatment of
medical opinion evidence is given significant weight, as Liberty appears to
have reasonably credited the medical opinion of Dr. Bomar over the
medical opinions of Dr. Gillick and Dr. Majernick.
In sum, viewing the aggregate evidence in the light most favorable to
Moncak, the non-moving party, we find that the disability determination

- 35 -

by Liberty in this case was reasonable and not an abuse of discretion.
Accordingly, Liberty’s motion for summary judgment will be granted.
B. The Plaintiff’s Motion for Summary Judgment
Moncak has likewise moved for summary judgment.
Based on the foregoing discussion, and viewing the record in the light
most favorable to Liberty, the non-moving party, we find that the
disability determination by Liberty in this case was reasonable and not an
abuse of discretion. Accordingly, Moncak’s motion for summary judgment
will be denied.
V.

CONCLUSION
Based on the foregoing, we will grant Liberty’s motion for summary

judgment (Doc. 17) and deny Moncak’s motion for summary judgment
(Doc. 20). An appropriate order will follow.

Dated: March 31, 2017

s/ Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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