POTTS v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY

Filing 68

MEMORANDUM OPINION AND ORDER denying 56 Motion for Summary Judgment; granting 59 Motion for Summary Judgment with respect to all of Plaintiff's claims, which are dismissed with prejudice, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 9/28/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JENNIFER POTTS,

)

)

Plaintiff,

)

)

v.

CIVIL ACTION NO. 3:16-35
JUDGE KIM R. GIBSON

)
)

HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,

)

)
)

Defendant.

)

MEMORANDUM OPINION
I.

Introduction
Before the Court are motions for summary judgment by Jennifer Potts, Plaintiff (ECF

No. 56) and Hartford Life and Accident Insurance Company ("HLAIC" or "Hartford Life"),
Defendant. (ECF No. 59.) The issues have been fully briefed (see ECF Nos. 57, 58, 60, 61, 62,
63, 64, 65, 66, 67) and both motions are ripe for disposition. For the reasons that follow,
Plaintiff's motion will be DENIED and Defendant's motion will be GRANTED.

II.

Jurisdiction
This Court has subject matter jurisdiction under 28U.S.C.§1331, as Plaintiff's claim

arises under federal law. Venue is proper under 29 U.S.C. § 1332(e)(2).

III.

Background
A. Procedural History
Plaintiff initiated this lawsuit by filing a complaint in the Western District of

Kentucky on September 21, 2015. (ECF No. 1.) Plaintiff's complaint alleged "Breach of
Contract" and "Breach of Fiduciary Duty." (Id.) On October 15, 2015, Defendant filed a

motion to dismiss Plaintiff's "Breach of Fiduciary Duty" claim (ECF No. 6) as well as an
answer. (ECF No. 5.) On January 11, 2016, Defendant filed a motion to transfer this case to
this Court (ECF No. 25.), which Plaintiff did not oppose. (See ECF No. 20.)
An Initial Rule 16 Scheduling Conference was held before this Court on March 8,
2016. (ECF No. 33.) After mediation proved unfruitful (see ECF No. 40), the Court entered
a Scheduling Order granting the parties leave to brief the motion to dismiss under the law
of the Third Circuit. (ECF No. 41.) This Court then granted Defendant's motion to dismiss
Plaintiff's "Breach of Fiduciary Duty" claim on August 9, 2016. (ECF No. 47.) Thus, the only
claim left at this juncture is Plaintiff's "Breach of Contract" claim.
B. Factual History

This case involves Defendant's denial of Plaintiff's benefits for long-term disability
under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1101, et seq.
("ERISA"). The following facts are undisputed.
Plaintiff was employed with Denny's, where she worked as a General Manager
from January 7, 2010 through April 25, 2012. (ECF No. 63 at 1.) Through her employment
with Denny's, Plaintiff participated in an employee welfare benefit plan ("Plan"). (Id. at 1.)
The Plan provides for both short-term disability ("STD") and long-term disability ("LTD")
(Id. at 1-2; ECF No. 58 at 1-2.); these benefits are funded by an insurance policy ("Policy")

issued by Defendant. (ECF No. 61 at 1.) Under the Policy, "Disability or Disabled means
You are prevented from performing one or more of the essential duties of: 1) Your
Occupation during the Elimination Period; 2) Your Occupation, for the 24 month(s)
following the Elimination Period, and as a result Your Current Monthly Earnings are less
2

than 80% of Your Indexed Pre-Disability Earnings; and 3) after that, Any Occupation." (AR.
0028.)
Plaintiff ceased work on April 26, 2012, after being diagnosed with Fibromyalgia
and Thoracic Disc Disease. (ECF 58 at 2.) Plaintiff applied for STD benefits immediately
after ceasing work. (Id.) On April 30, 2012, Defendant determined that Plaintiff could not
perform her job duties and approved Plaintiff's claim for STD benefits, effective April 26,
2012. (Id.) Defendant paid Plaintiff STD benefits for the maximum time period allowed
under the policy. (Id.) On January 18, 2013, after reviewing medical reports from several
medical specialists who had treated Plaintiff in the preceding months, Defendant
determined that Plaintiff was disabled from her own occupation and approved Plaintiff's
claim for LTD benefits. (ECF No. 63 at 3-4.)
Plaintiff continued to receive LTD benefits for the next twenty-four (24) monthsthe entirety of the "Own Occupation" period. (ECF No. 58 at 2; AR. 0224.) When the Own
Occupation period ended, Defendant terminated Plaintiff's LTD benefits, effective January
1, 2015. (ECF No. 63 at 12.) Plaintiff appealed Defendant's decision, and Defendant denied
Plaintiff's appeal. (Id. at 17.) This lawsuit followed.
Because Plaintiff alleges that Defendant improperly denied her LTD benefits based
on her medical conditions, it is necessary to review Plaintiff's treatment history and
Defendant's reviews of Plaintiff's claims for benefits. While the record before this Court is
quite voluminous, this Court will set forth a concise summary of the uncontested facts most
relevant to the pending motions.

3

1. Plaintiff Ceases Work and is Awarded Short and Long-Term Disability Benefits
In April, 2012, Dr. Kem diagnosed Plaintiff with Fibromyalgia and noted that
Plaintiff had subjective symptoms of "leg pain/weakness/fatigue." (AR. 1005.) Dr. Kem
indicated that Plaintiff could not return to work at that time. (Id.) On April 26, 2012, Plaintiff
ceased work and was shortly thereafter awarded STD benefits. After receiving STD
benefits, Plaintiff continued to be treated by Dr. Kem for a variety of issues, including, but
not limited to, fibromyalgia, chronic pain in various parts of her body, depression,
adjustment reaction, and other emotional disturbances. (See AR. 1000-1003, 0997, 0979-80,
0976, 0992-93, 0972-73.) On at least two occasions, Dr. Kem indicated in her notes that
Plaintiff might need to see a psychiatrist. (AR. 1003, 0977.)
Plaintiff also was seen by a pain management specialist, Alice Jones, DNP. On
October 1, 2012, Ms. Jones filled out Defendant's "Attending Physician's Statement of
Functionality" (" APSF") and reported that Plaintiff's "primary diagnosis is chronic
pain/syndrome, hip pain." (AR. 0942-43.) Ms. Jones further noted that she was "unable to
determine" Plaintiff's functional capacity, and stated that Plaintiff "needs to be referred for
functional capacity tests." (AR. 0943.) On November 11, 2012, Ms. Jones filled out a form
letter sent by Defendant, in which she stated that Plaintiff "needs functional capacity
testing." (AR. 0905.)
Defendant approved Plaintiff's claim for LTD benefits on January 18, 2013, effective
November 1, 2012, after determining that Plaintiff was disabled from her own occupation.
(AR. 0290-0293; ECF No. 63 at 4.) The letter was signed by "Tanya A. Walsh, Ability
Analyst[,] Hartford Life and Accident Insurance Co." (AR. 0292.)
4

Plaintiff continued to be seen by various medical professionals, and Defendant
regularly requested information from these providers about Plaintiff's medical conditions.
On July 26, 2013, Ms. Jones checked the boxes on a form stating that Plaintiff could perform
"light" and "sedentary work" on a "full-time basis." (AR. 0730; AR. 0733.) Defendant then
contacted Dr. Kem and asked whether she concurred with Ms. Jones' opinion. Dr. Kem
noted that she had not seen Plaintiff since April and would "defer to pain mgmt." (AR.
0692-93.)
Plaintiff met with Dr. Kem on September 13, 2013. Following the appointment, Dr.
Kem wrote a letter in which she stated that "I understand by both your correspondence
and from the patient that Pain management stated she was able to perform light duty."
(AR. 0685.) However, Dr. Kem stated that Plaintiff "proves to be a hard case," and that "it
is my opinion that she remain out of work." (Id.) Dr. Kem further noted that Plaintiff had
an appointment on October 10, 2013, with a chiropractor, Dr. Rizzo, who "is going to do a
Functional Capacity test on her to see her ability to do work." (Id.) Ultimately, Plaintiff did
not complete the functional capacity test because Dr. Rizzo was not certified to administer
it and other providers were prohibitively expensive. (AR. 0119.) Defendant did not offer to

pay for Plaintiff to undergo a functional capacity test.
In a letter dated June 2, 2013, Dr. Rita Kammiel, Plaintiff's psychiatrist, noted that
Plaintiff was unable to work because of" depression, lack of motivation, poor concentration,
and trouble coping with physical pain." (AR. 0786.) On October 5, 2013, Dr. Kammiel filled
out Defendant's" Attending Physician's Statement of Disability"(" APSD") form, indicating
that Plaintiff suffers from chronic pain syndrome, depression, and bipolar disorder. (AR.
5

0676-687.) Dr. Kammiel also reported that Plaintiff had "No Ability" or "Minimal Ability"
in eleven (11) out of twelve (12) work-related activities. (Id. at 0677.)
In a letter to Defendant dated November 20, 2013, Dr. Kem wrote "Please note, I am
not treating any condition-but pt. has diagnosis of fibromyalgia & thoracic disc disease.
She is unable to stand for long periods of time or sit." (AR. 0674.) Dr. Kem further stated "I
think it is unreasonable to think she can work full time." (Id.)
Plaintiff returned to Dr. Kem on January 8, 2014. Dr. Kem noted Plaintiff's various
diagnoses, stated that Plaintiff reported tenderness when pressure was applied to her upper
back, and opined that while "[a]lone either of her diagnoses may not qualify her" for Social
Security

benefits,

"her

significant

depression

along

with

Thoracic

radiculopathy/Fibromyalgia make for a poor work candidate." (AR. 0596.) Plaintiff saw Dr.
Kem again on May 8, 2014. Dr. Kem again noted Plaintiff's various diagnoses, stated that
Plaintiff "recoils from light touch to the chest wall, upper extremity, and upper back," and
reiterated that, while she might not qualify for Social Security, she is a "poor work
candidate." (AR. 0593.)
Plaintiff returned to Ms. Jones, the pain specialist, on February 12, 2014 (AR. 0430431), March 14, 2014 (AR. 0428-429), and April 11, 2014. (AR. 0426-427.) During each of these
visits, Ms. Jones listed Plaintiff's diagnoses, noted that Plaintiff had been placed on
disability, and stated that a physical examination of Plaintiff revealed "tenderness" in her
back that radiated to her sides, as well as hypersensitivity to touch. (See AR. 0430-431; AR.
0428-429; AR. 0426-427.) No evidence has been presented that Ms. Jones ever revised her

6

opinion that Plaintiff could perform full-time "light" and "sedentary work." (See AR. 0730;
AR. 0733.)
Around the same time, Plaintiff began seeing Diana Hewlett, DNP, a pain
management specialist who worked in the same practice as Ms. Jones. Plaintiff met with
Ms. Hewlett on May 9, 2014 (AR. 0424-425), June 6, 2014 (AR. 0422-423), July 18, 2014 (AR.
0420-421), August 15, 2014 (AR. 0418-419), September 12, 2014 (AR. 0415-416), October 10,
2014 (AR. 0412-413), November 7, 2014 (AR. 0409-410), and December 5, 2014. (AR. 0406407.) Ms. Hewlett's write-ups from these visits were extremely similar. In each one, she
listed Plaintiff's diagnoses and reported that Plaintiff's physical examination revealed
tenderness in her back and supporting muscles that radiated out to her sides, as well as
elbow tenderness and hypersensitivity to touch. Notably, during this extensive course of
treating Plaintiff for pain, Ms. Hewlett never stated that she disagreed with her colleague
Ms. Jones' July, 2013 statement that Plaintiff could perform "light" and "sedentary work"
on a "full-time basis." (See AR. 0730; AR. 0733.)
After being placed on LTD under her Policy with Defendant, Plaintiff filed for Social
Security Disability benefits. Her claim was initially denied on February 14, 2013. (See AR.
0629-639.) Plaintiff appealed. In January, 2014, Plaintiff testified at a hearing before the
Administrative Law Judge ("ALJ"). (See Id. at 0629.) On May 19, 2014, the ALJ denied
Plaintiff's appeal. (Id.) The ALJ found that Plaintiff suffered from "severe impairments"
such as Fibromyalgia, Thoracic Herniatations, Major Depressive Disorder, Bipolar
Disorder, and Adjustment Reaction. (Id. at 0631.) However, the ALJ found that Plaintiff
"does not have an impairment or combination of impairments that meets or medically
7

equals the severity" necessary to qualify for Social Security Disability benefits. (Id. at 0632.)
The ALJ noted that "claimant's subjective allegations are unsupported by the record," and
further stated that "the medical evidence simply does not corroborate the level and effect
of her alleged symptoms." (Id. at 0636.) The ALJ further stated that Plaintiff "has the
residual functional capacity to perform light work." (Id. at 0634.) However, the ALJ listed
various restrictions on Plaintiff's physical activities regarding her return to work, and stated
that Plaintiff should only work in a low-stress environment that is slow paced and requires
minimal contact with others. (Id.)
The day after the ALJ denied Plaintiff's Social Security Disability appeal, Dr. Kem
responded to a letter that Defendant had sent her inquiring into Plaintiff's condition. Dr.
Kem indicated that Plaintiff was not capable of performing sedentary full-time work. (AR.
0621.) Dr. Kem stated that Plaintiff "cannot stand for long periods of time, or sit." (Id.) Dr.
Kem also indicated that she did not expect Plaintiff's ability to work to change in the future.
(Id.)

On June 1, 2014, Dr. Kem filled out an APSD form provided by Defendant, and
stated that Plaintiff reported pain in her chest, back, arms, and legs. (AR. 0611.) Dr. Kem
noted that Plaintiff's prognosis was "fair/poor." (Id.) However, Dr. Kem noted that Plaintiff
"sees pain management monthly" and that Dr. Kem was "only treating chole[sterol]." (Id.)
Dr. Kem did not fill out the part of the form that assessed Plaintiff's work-related abilities
and restrictions. She noted that Plaintiff's work abilities were "not assessed this visit," and
advised Defendant to "consult pain management." (Id. at 0612.)

8

In early October, Dr. Kammiel filled out a functional capacity form provided by
Defendant, and noted that Plaintiff had "No Ability" or "Moderate Ability" on ten (10) of
the eleven (11) work-related activities that Dr. Kammiel assessed. (AR. 0598.) Dr. Kammiel
also noted that Plaintiff was suffering from bi-polar disorder and chronic pain syndrome.
(AR. 0597-599.) Plaintiff saw Dr. Kammiel again on November 7, 2014. Dr. Kammiel stated
that Plaintiff had bi-polar disorder and was "unable to work due to impact of physical pain
on her mood and depression." (AR. 0579-580.)
2. Plaintiff's Own Occupation Period Ends, and Defendant Investigates Whether Plaintiff

Meets the Definition of Disabled Under the Any Occupation Standard
Under Plaintiff's Policy, her LTD benefits expired on November 1, 2014, two years
after they went into effect. (See AR. 0028.) On November 11, 2014, Defendant wrote to
Plaintiff explaining that her LTD benefits had lapsed, and that "you must be considered
totally disabled ... in order to continue to be eligible for LTD benefits." (AR. 0240.) In other
words, because the Own Occupation period had ended, Plaintiff could only continue to
receive LTD benefits if she were unable to work "Any Occupation." Defendant noted that
it was investigating whether Plaintiff was fully disabled as required for her to continue to
receive LTD benefits. (Id.) Defendant further advised Plaintiff that any benefits she received
after November 1, 2014 (when her Own Occupation benefits lapsed) "should not be
construed as an admission of continued liability." (Id.) The letter was signed by "Tanya R.
Walsh, Senior Ability Analyst[,] Hartford Life and Accident Co." (Id.)
Over the next six months, Defendant reviewed Plaintiff's case to determine whether
she was disabled under the Any Occupation standard. Defendant obtained two doctors

9

from Medical Consultants Network to conduct record reviews of Plaintiff's medical file.
(ECF No. 58 at 2.) Plaintiff was not physically examined by either of these physicians. (ECF.
No. 65 at 4.) Both physicians were licensed and Board Certified. (ECF No. 63 at 9.) Neither
was licensed to practice medicine in Pennsylvania. (ECF No. 65 at 4.)
The first review was conducted by Dr. Akshay Sood. (AR. 0561-567.) Dr. Sood
reviewed 168 pages of Plaintiff's medical records. (AR. 0561.) Dr. Sood also contacted two
of the physicians who had treated Plaintiff. Dr. Kem would not speak with Dr. Sood, but
she transmitted a message to him through her nurse, who reported that Plaintiff could not
be touched because everything hurt her. (AR. 0564.) Dr. Sood had better luck with Ms.
Hewlett, who worked alongside Ms. Jones and served as one of Plaintiff's pain specialists.
According to Dr. Sood, Ms. Hewlett indicated during their phone conversation that she still
believed that her colleague Ms. Jones' report from July 26, 2013, was accurate. (Id.) In Ms.
Jones' July 26, 2013 report, she stated that Plaintiff could perform "light" and "sedentary
work" on a "full-time basis." (AR. 0730; AR. 0733.)
After reviewing Plaintiff's medical records and speaking with Dr. Kem (albeit via
her nurse) and Ms. Hewlett, Dr. Sood determined that Plaintiff could return to full-time
work. (AR. 0565.) However, Dr. Sood noted certain "medically necessary functional
limitations and/or restrictions" regarding Plaintiff's work abilities. (Id.) For instance, Dr.
Sood stated that Plaintiff "can never climb ladders or stairs or balance or operate at heights
or drive commercial vehicles or operate heavy equipment" and cannot "bend, twist, squat,
crouch or stoop." (Id.) Dr. Sood also noted that, in an eight-hour work shift, Plaintiff could
only "sit one hour at a time for a total of six hours," could only "stand for 30 minutes at a
10

time for a total of four hours," and could only "walk for 30 minutes at a time for a total of
two hours." (Id.)
The second review was conducted by Dr. Kathleen Seibel, a psychiatrist. (AR. 0553559.) Dr. Seibel attempted to speak with Dr. Kammiel, Plaintiff's psychiatrist, but the
receptionist told Dr. Siebel that Dr. Kammiel would charge him for the time she spent on
the phone with him. (Id. at 0557.) Dr. Siebel consulted with Medical Consultants Network,
which advised her to go forward with the review notwithstanding her inability to speak
with Dr. Kammiel. (Id.)
Upon finishing her review, Dr. Siebel stated that, based on the dearth of psychiatric
records, the illegibility of the few notes written by Dr. Kammiel, and the fact that Plaintiff
had never undergone a "complete, thorough psychiatric evaluation that is legible," it was
"unclear" which psychiatric symptoms were being monitored. (Id. at 0558.) Dr. Siebel stated
"I do not agree that this claimant has impairment from a psychiatric disorder based on the
records available for me to review." (Id. at 0557.) Dr. Siebel observed that "the intensity of
treatment does not support impairment secondary to a psychiatric disorder," and
concluded that "there is no objective information that supports restrictions or limitations
secondary to a psychiatric disorder." (Id.)
After Drs. Sood and Siebel submitted their findings, Defendant performed an
"Employability Analysis Report" ("EAR") to determine which occupations Plaintiff could
perform given the limitations and restrictions noted by Drs. Sood and Siebel. (AR. 0512531.) The "Ability Profile," which listed all of Plaintiff's limitations in one, single-spaced
column, was almost two full-pages long. (Id. at 0515-516.) The report identified six
11

occupations that Plaintiff could perform given her restrictions. (Id. at 513.) All six of the
occupations would allow Plaintiff to earn more than the minimum amount required by her
Policy. (Id.) Based on the EAR, Defendant determined that Plaintiff was not totally disabled
as required for her to continue to receive LTD benefits during the Any Occupation period.
On December 31, 2014, Defendant informed Plaintiff, via letter, that it was

terminating her LTD benefits effective January 1, 2015. (AR. 0224.) The letter stated that,
based on Ors. Sood and Siebel' s independent reviews of Plaintiff's medical file, Defendant
did not believe that Plaintiff was totally disabled. The letter detailed the above-stated
restrictions that Dr. Sood believed were medically necessary for Plaintiff to return to work,
and listed the six job matches that were produced by the EAR given Plaintiff's restrictions
and salary requirements. (Id. at 0227.) The letter informed Plaintiff how to file an appeal.
The letter was signed by "Tanya R. Walsh, Senior Ability Analyst[,] Hartford Life and
Accident Insurance Co." (Id.)
3. Plaintiff's Appeal and Defendant's Subsequent Review

Plaintiff appealed the decision. (AR. 0496-501.) In her appeal letter, Plaintiff raised
several "issues" with Defendant's decision. Plaintiff alleged that her LTD benefits were
terminated "without any medical support," that Defendant improperly failed to have
Plaintiff undergo a functional capacity test, that Defendant used an inappropriate
employability test, and that Defendant improperly required her to apply for Social Security
benefits to show that she was totally disabled. (Id. at 0497-498.) To support her appeal,
Plaintiff filed a form completed by Dr. Kem, in which Dr. Kem stated that Plaintiff was
restricted to sitting a maximum of 2 hours in an 8-hour workday, and further stated that
12

Plaintiff was unable to participate in full-time sedentary employment. (AR. 0487-488.) Dr.
Kem filled out this form on March 12, 2015. However, the last time Dr. Kern had actually
seen plaintiff was on November 7, 2014. (AR. 0216.)
In her appeal letter, Plaintiff further requested that Defendant identify whatever

additional information Defendant believed it needed for Plaintiff's claim to be granted, and
requested that Defendant "obtain a functional capacity evaluation." (AR. 0484-485.)
Defendant responded to these requests in a letter, dated July 13, 2015. (AR. 0220.) Defendant
stated that "a full explanation of why [Plaintiff's] claim was terminated was given" in the
termination letter. (Id.) Defendant further stated that it would not arrange for a functional
capacity evaluation, because "the issue is [Plaintiff's] work ability as of 12/31/2014." (Id.)
This letter was signed by Mary Floyd, Appeal Specialist[,] Hartford Life and Accident
Insurance Co." (Id.)
In its review of Plaintiff's appeal, Defendant obtained three additional independent
medical opinions from Maureen Smith Ruffell, M.D., Board Certified in Psychiatry, Dr.
James Boscardin, M.D., Board Certified Orthopedic Surgery, and Dr. Brian Peck, M.D.,
Board Certified Rheumatology. (ECF No. 63 at 13.) None of these physicians is licensed to
practice medicine in Pennsylvania.
Dr. Ruffell completed her review on August 6, 2015. (AR. 0360-374.) Dr. Ruffell
noted that she reviewed "[a]ll records provided by the Hartford." (Id. at 0360.) Dr. Ruffell
also noted that she had called Dr. Kemmiel' s office on multiple occasions, and sent Dr.
Kemmiel written questions concerning her treatment of Plaintiff, but that Dr. Kemmiel
never responded. (Id. at 0374-376.) Dr. Ruffell noted that, based on her review of Plaintiff's
13

medical file, "there is no indication that the claimant is psychotic, unable to exercise
adequate every day judgment, immobilized by her depression or unable to care for herself."
(Id. at 0367.) Dr. Ruffell further noted that "I did not find any documentation of a cognitive

exam showing any significant memory, concentration or attention deficit." (Id.) Dr. Ruffell
further stated that "[w]hile there is sparse information about [Plaintiff's] actual daily
functionality," the fact that Plaintiff's medical file indicated that Plaintiff planned a trip to
Germany in May of 2013, and the fact that she regularly travelled 6-hours to visit her pain
specialists, were "inconsistent with the claim of a severe condition that precludes work
activity." (Id.) Dr. Ruffell also observed that Plaintiff's psychiatric care appeared to be
limited to "medication management sessions every 3 months" with Dr. Kammiel, a course
of treatment which "is not consistent with what would be expected for a severe condition."
(Id. at 0368.) Dr. Ruffell ended her report by stating that "I did not find information that

supports signs of severity that would preclude work activity despite her symptoms if she
were motivated to return to the workplace." (Id. at 0373.)
Dr. Peck's report was also issued on August 6, 2015. (AR. 0340-348.) Dr. Peck
contacted Dr. Kem by telephone on July 16, 2015, at 12:45 p.m. (Id. 0340.) Dr. Peck reports
that Dr. Kem stated that Plaintiff was unable to perform full-time sedentary work due to
her pain. (Id. at 0341.) However, Dr. Peck noted that Dr. Kem had previously "outlined
[restrictions and limitations] consistent with medium work" on a disability form from April
of 2012. (Id. at 0343.) After performing a record review of the notes and reports from Ms.
Hewlett, Ms. Jones, and Drs. Kem and Kammiel, reviewing imaging studies such as x-rays
and MRis, and listing Plaintiff's likely diagnoses, Dr. Peck concluded that "[Plaintiff] is
14

capable of performing light level work as defined by the DOL-DOT on a full-time basis for
the time period in question." (Id. at 0347.)
Dr. Boscardin also completed his review on August 6, 2015. (AR. 0351-357.) Dr.
Boscardin reviewed "[a]ll records provided by the Hartford." (Id. at 0351.) Dr. Boscardin
stated that his review was limited to "orthopedic issues." (Id. at 0355.) Dr. Boscardin
reviewed the imagining studies in Plaintiff's, such as MRis and x-rays, and noted that the
images "indicate degenerative changes, but nothing that would cause a significant
neurological or functional limitation." (Id. at 0354.) Dr. Boscardin attempted to speak with
Ms. Jones, one of Plaintiff's pain specialists, but Ms. Jones never returned his call. (Id.)
However, Dr. Boscardin states that he spoke with Dr. Kem on July 30, 2015, at 10:25 a.m.;
Dr. Kem "opined" that Plaintiff was able to perform light-duty work as of January 1, 2015,
but stated that psychological issues might impair her ability to function in a full-time job. 1
(Id.) Dr. Boscardin concluded that Plaintiff was able to perform full-time light level work "8

hours a day, 40 hours a week." (AR. 0355.) He noted that Plaintiff had no restrictions on
grasping or typing, could walk and stand for up to an hour at a time for a maximum of
three hours each day, could lift up to twenty pounds, and that Plaintiff had no restrictions
for sitting, though she should be allowed to shift positions for comfort as needed. (Id.)

Plaintiff does not deny that this conversation occurred. But Plaintiff states that "there is
no evidence of this conversation." (ECF 63. at 15.) However, there is evidence-Dr.
Boscardin' s personal knowledge of this conversation, as detailed in his report. Moreover,
Plaintiff has not come forward with any evidence to support her speculation that this
conversation did not actually occur.
1

15

In consideration of the reports submitted by these independent medical reviewers,
as well as the other information in Plaintiff's file, Defendant denied Plaintiff's appeal in a
letter dated August 11, 2015. (AR. 0214-220.) The letter noted that Defendant's review of
Plaintiff's claim "has been conducted separately from the individuals who made the
original decision to terminate benefits and without deference to that decision." (Id. at 0214.)
The letter noted that Plaintiff's "claim file has been reviewed in its entirety" (Id.), and listed
nine (9) additional sources of information that were considered during the appeal. (Id.) The
letter provided a chronology of Defendant's review of Plaintiff's claim, from its initial
denial to the appeal decision, and summarized the findings of all five (5) independent
doctors who had reviewed Plaintiff's file. (Id. at 0215-219.) Defendant stated that based on
Plaintiff's medical information, the opinions of Plaintiff's treatment providers (i.e. Dr. Kem,
Dr. Kemmiel, Ms. Hewlett, and Ms. Jones), and the reviews provided by the independent
reviewing physicians, Defendant determined that Plaintiff was capable of performing
"sedentary to light duty work" as of January 1, 2015. (Id. at 0219.) The letter further stated
that the EAR, which had listed occupations that accommodated Plaintiff's restrictions and
satisfied her compensation requirements, remained valid. (Id.) The letter was signed "Mary
Floyd, Appeal Specialist[,] Hartford Life and Accident Insurance Co." (Id.)
Approximately six weeks after Defendant denied her appeal, Plaintiff filed this
lawsuit.

16

IV.

Legal Standards
A. Summary Judgment
"Summary judgment is appropriate only where ... there is no genuine issue as to

any material fact ... and the moving party is entitled to judgment as a matter of law."

Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir.2010) (quoting Ruehl v. Viacom, Inc., 500
F.3d 375, 380 n. 6 (3d Cir.2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Fed.R.Civ.P. 56(a). Issues of fact are genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts
are those that will affect the outcome of the trial under governing law. Anderson, 477 U.S. at
248. The Court's role is "not to weigh the evidence or to determine the truth of the matter,
but only to determine whether the evidence of record is such that a reasonable jury could
return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d
575, 581 (3d Cir. 2009). "In making this determination, 'a court must view the facts in the
light most favorable to the nonmoving party and draw all inferences in that party's favor."'

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000) (quoting Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994).
The moving party bears the initial responsibility of stating the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party
opposing summary judgment "may not rest upon the mere allegations or denials" of the
pleading, but "must set forth specific facts showing that there is a genuine issue for trial."
17

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 n. 11 (1986)). "For an issue to be genuine, the nonmovant
needs to supply more than a scintilla of evidence in support of its position-there must be
sufficient evidence (not mere allegations) for a reasonable jury to find for the nonmovant."

Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.1993); see also
Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting that a party opposing
summary judgment "must present more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue") (internal quotation marks omitted).
B. ERISA

"[A] denial of benefits challenged under§ 1132(a)(l)(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, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). "Thus,
when an employee benefit plan grants discretionary authority to a plan administrator, a
court must apply the deferential standard of arbitrary and capriciousness." McDonald v.

Appleton Papers Inc. Ret. Plan, No. CIV.A. 3:13-181, 2014 WL 4660683, at *3 (W.D. Pa. 2014),
citing Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012); see also Doroshow v. Hartford
Life & Acc. Ins. Co., 574 F.3d 230, 233 (3d Cir. 2009) ("When the administrator has
discretionary authority to determine eligibility for benefits ... the decision must be reviewed
under an arbitrary and capricious standard."). "The plan administrator bears the burden of
proving that the arbitrary and capricious standard of review applies." Viera v. Life Ins. Co.

of N. Am., 642 F.3d 407, 413 (3d Cir. 2011) (internal citations omitted).
18

"The arbitrary and capricious standard is also applicable where reviewing decisions
are made by parties other than the administrator, so long as the plan provides that the
administrator can delegate the duty to another party, and the administrator properly
designated that duty." Cipriani v. Liberty Life Assurance Co. of Boston, No. 4:12-CV-1335, 2015
WL 5923454, at *2 (M.D. Pa. 2015), citing Parelli v. Bell Atl.-Pa., No. 98-3392, 2000 WL 764914,
at *3 (E.D. Pa. 2000). "However, if the plan does not include a provision that allows the
administrator to designate others to carry out fiduciary responsibilities, evaluate claims, or
construe the terms of the plan, then any delegation of that discretion would be
unauthorized and any determinations made by an unauthorized third party would be
subject to a less deferential de novo standard of review." Cipriani, 2015 WL 5923454 at *2
(internal citations omitted).

V.

Discussion
A. Applicable Standard of Review

The parties do not dispute that the Policy gives Defendant the discretion to
determine Plaintiff's eligibility for benefits. (See ECF No. 63 at 2.) However, Plaintiff claims
that Defendant improperly delegated its decision-making authority in violation of the
Policy, and therefore contends that this Court should apply a de nova standard of review.

(See ECF No. 57 at 2-4.) Defendant asserts that it did not delegate any decision-making
authority, and that its decision to terminate Plaintiff's benefits is therefore entitled to an
arbitrary and capricious standard of review. (See ECF No. 64 at 4-7.)
Plaintiff's improper delegation argument is straightforward. The Policy states that
"We have full discretion and authority to determine eligibility benefits and to construe and
19

interpret all terms and provisions of The Policy." (AR. 0027.) "We" is defined as "the
insurance company named on the face page of The Policy." (AR. 0031.) The face page of the
Policy names "Hartford Life & Accident Insurance Company." (AR. 0001.) Thus, the Policy
delegated discretionary authority only to HILAC. (ECF No. 57 at 3.) However, it is
undisputed that the people who made the claim decision were formally employed by
Hartford Fire Insurance Company, not HILAC. (ECF No. 64 at 2.) Plaintiff contends that
the fact that the decision-makers were not employed by HILAC constitutes improper
delegation and entitles her to de nova review. (See ECF No. 57 at 2-4; ECF No. 62 at 6-8.)
Defendant responds by stating that it did not delegate decision-making authority
because the people who made the claims decision "were acting as agents of, and on behalf
of, Hartford [Life]." (ECF No. 64 at 2.) To support this contention, Defendant notes that
Hartford Life and Hartford Fire are subsidiaries of the same holding company and that the
holding company "does not transact any business" (ECF No. 60-2 at 2), but that "for
administrative purposes, Hartford Fire pays the salaries of all employees of [the holding
company's] subsidiary and affiliate companies." (Id. at 3.) Defendant asserts that the
persons who terminated Plaintiff's benefits and upheld that decision on appeal were" solely
responsible for adjudicating LTD claims under insurance policies issued by HLAIC," and
"were not responsible for adjudicating any claims under insurance policies issued by
Hartford Fire." (Id.) Defendant further asserts that "at all times" the persons making
Plaintiff's claim decisions were "acting on behalf of HILAC and with the authority of
HILAC." (Id.) Defendant further states that "Hartford Fire is not associated in any way with
the Policy or the adjudication or payment of claims arising thereunder." (Id.) Finally,
20

Defendant notes that the persons who signed Plaintiff's claim decision letters were
identified in the letters as employees of "Hartford Life and Accident Insurance Co." (see
AR. 0214-19, 0224-28) and that the letterhead contained the same "The Hartford" logo that
appeared directly above the "Harford Life and Accident Insurance Company" on the face
page of Plaintiff's Policy. (See AR 0001.)
Based on the evidence discussed above, this Court finds that Defendant has
established that Hartford Life-not Hartford Fire-made the benefits decisions that
Plaintiff challenges. It is undisputed that the terms of the policy vested Hartford Life with
discretionary authority. Therefore, Plaintiff's claims are subject to the deferential arbitrary
and capricious standard of review.
This Court notes that at least three federal district courts in the Third Circuit have
been presented with very similar factual circumstances in recent years. Each of these courts
found that the ERISA defendant did not improperly delegate decision-making authority,
and therefore held that the decisions to deny or terminate benefits would be subject to
review under an arbitrary and capricious standard.
In Lucas v. Liberty Life Assur. Co., 2014 U.S. Dist. LEXIS 184860 (E.D. Pa. 2014),
plaintiff was insured under a plan that gave Liberty Life "sole discretion" to interpret the
policy and determine eligibility for benefits. Id. at 1. However, Liberty Mutual, not Liberty
Life, paid the employee who denied plaintiff's appeal. Id. at 22. The court rejected Plaintiff's
contention that "Liberty Mutual made the benefits determination." Id. The court noted that
it was "apparent throughout the administrative record that those individuals [who were
making eligibility decisions] were acting as agents of Liberty Life; sending correspondence
21

on behalf of Liberty Life and ultimately being supervised by Liberty Life." Id. at 23-24. The
court found that Liberty Life made the benefit determination because there was "simply no
evidence that Liberty Mutual had any involvement in the benefits determination, other than
issuing paychecks to the agents of Liberty Life." Id. at 24. Therefore, the court held that the.
denial of plaintiff's claim would be subject to the arbitrary and capricious standard of
review. Id.
The district court reached the same conclusion in Cipriani v. Liberty Life Assurance

Co. of Boston, No. 4:12-CV-1335, 2015 WL 5923454 (M.D. Pa. 2015), a case with extremely
similar facts to Lucas. Like plaintiff in Lucas, plaintiff in Cipriani "acknowledge[ d] that the
plan gives Liberty Life this discretionary authority," but claimed that de nova review was
appropriate because "Liberty Life delegated this function to Liberty Mutual, an
unauthorized third party." Id. at 3. In response, Defendant noted that Liberty Mutual
employees who are assigned to work for Liberty Life, and who make eligibility decisions
regarding Liberty Life's policies, "generally devote 100% of their time working for Liberty
Life" and are "under the control and ultimate supervision of the officers and board of
directors of Liberty Life." Id. at 4. The court found that while the decision-makers were paid
by Liberty Mutual, they were acting on behalf of, and under the control of, Liberty Life. Id.
at 6. Thus, Liberty Life, not Liberty Mutual, had discretion over eligibility determinations.
Id. Therefore, "there was no unauthorized delegation of authority" Id. at 6, and denial of

plaintiff's claim would be subject to review based on an arbitrary and capricious standard.
Id.

22

Similarly, in Shatto v. Liberty Life Assur. Co, 2016 U.S. Dist. LEXIS 131097 (E.D. Pa.
2016), plaintiff argued for a de nova standard of review "because Liberty Mutual made the
claims decisions, rather than Liberty Life, and because there is no provision in the Policy
which allows delegation of the authority to handle and decide claims." Id. at 21. The court
found that Liberty Life, not Liberty Mutual, had authority over plaintiff's claim and appeal.
Id. at 29. For instance, while "letters to Plaintiff bore the Liberty Mutual logo," they also
"displayed a return address for Liberty Life and were mailed in Liberty Life envelopes," Id.
at 28; plaintiff was advised that his appeals should be made to Liberty Life, Id.; the signature
block for plaintiff's Appeal Review Consultant stated that she worked for "Liberty Life
Assurance Company of Boston, A Liberty Mutual Company," Id. at fn. 7; and
"correspondence to Plaintiff from the company coordinating the independent medical
examination referred to Liberty Life, not Liberty Mutual." Id. at 29. The court held that, like
the plaintiff in Lucas, "[p]laintiff has not adduced evidence showing that Liberty Mutual
was involved in Liberty Life's processes for benefits determinations other than by issuing
paychecks to the personnel assigned to Plaintiff's claim." Id. at 28. Therefore, "the
appropriate standard of review is the deferential arbitrary and capricious standard." Id. at
30.

Unlike in the cases cited above, Liberty Life is not the defendant here-Hartford
Life is. However, the facts here are very similar to the cases involving Liberty Life, and the
same conclusion follows. Hartford Life had express authority to determine eligibility
benefits. While the discretion was exercised by Ms. Walsh and Ms. Floyd, who were
formally employed by Hartford Fire, these persons were clearly acting as agents of Hartford

23

Life. Defendant has presented uncontested evidence that "Ms. Walsh and Ms. Floyd were
solely responsible for adjudicating LTD claims under insurance policies issued by HLAIC,"
and "were not responsible for adjudicating any claims under insurance policies issued by
Hartford Fire." (ECF No. 62-2 at 3.) In fact, "Hartford Fire is not associated in any way with
the Policy or the adjudication or payment of claims arising thereunder." (Id.) Instead,
Hartford Life is fully responsible for all aspects of adjudicating claims for LTD benefits. (Id.)
The lengthy record of communication between Plaintiff, her medical providers, and
Hartford Life further establishes that the decision-makers were acting as agents of Hartford
Life. For instance, the letters that Ms. Walsh and Ms. Laberge sent to Drs. Kem and
Kammiel had "Hartford Life and Accident Insurance Co." in the signature block below their
names, and did not include any reference to Hartford Fire. (See, e.g., AR. 0622; AR. 0674;
AR. 929; AR. 608; AR. 682.) Moreover, the letters denying Plaintiff's claim for LTD benefits
and appeal, signed by Ms. Walsh and Ms. Floyd, respectively, both had "Hartford Life and
Accident Insurance Co." in the signature block below their names, and did not mention
Hartford Fire. (See AR. at 214-19; AR. 224-28.) In fact, Plaintiff has not pointed to a single
correspondence with anyone who identified himself or herself as acting on behalf of
Hartford Fire.
Plaintiff relies on Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d 1079 (M.D.
Ala. 2006) to advance her argument that de nova review is appropriate. However, Anderson
does not apply here for several reasons. For one, Anderson is a non-binding case from a
different circuit. More importantly, the facts in Anderson are vastly different from the facts
in this case. In Anderson, the court found that the insurance issuer, Unum Insurance
24

Company, had improperly delegated decision-making authority to UnumProvident. Id. at
1086-87. In reaching this conclusion, the court relied on a "multi-page General Services
Agreement entered into between UnumProvident and its subsidiar[y] Unum, which
indicates that Unum assigned claims and administration duties to UnumProvident." Id. at
1086 (internal citations to the record omitted). Pursuant to the agreement, UnumProvident
provided "comprehensive claims management services," including but not limited to
"[r]eview of claims and medical files." Id. at 1087. In fact, the agreement explicitly stated
that UnumProvident was an independent contractor, not an agent or employee of Unum.
Id. By contrast, Plaintiff has not pointed to any agreement indicating that Hartford Fire will
provide claims management services and, as explained above, the people who Hartford
Fire paid were acting as agents of Hartford Life. Thus, Anderson is inapposite to this case.
Plaintiff has not presented any evidence that Hartford Fire was involved in the
decision to terminate her benefits, other than the fact that the persons who made the
decisions were formally employed by Hartford Fire. This Court finds that Hartford Life
sufficiently established that it retained the discretion that it had under the plan, and that
Hartford Life was the entity that made the claims decisions. Therefore, this court will
subject the termination of Plaintiff's LTD benefits to the arbitrary and capricious standard
of review. See Lucas, 2014 U.S. Dist. LEXIS 184860 at *24; Cipriani, 2015 WL 5923454 at *7;
Shatto, 2016 U.S. Dist. LEXIS 131097 at *29.

Plaintiff further asserts that Hartford Life waived its argument that the standard of
review was altered from de nova. Specifically, Plaintiff claims that, despite the fact that
Hartford Life bore the burden of establishing that the Policy granted discretion and that the
25

discretion was exercised by persons authorized to do so, Hartford Life "relegated its
argument on these two elements ... to a footnote" in its motion for summary judgment. (ECF
No. 62 at 6.) The Court agrees with Plaintiff that Defendant could have done a more
thorough job fleshing out its argument in its motion for summary judgment. However, this
Court does not find Plaintiff's argument compelling.
To support her argument, Plaintiff cites Lunn v. Prudential Ins. Co. of Am., 283 F.
App'x 940 (3d Cir. 2008), where the Third Circuit stated that "arguments raised in passing
(such as, in a footnote), but not squarely argued, are considered waved." Id. at 943.
However, Lunn and this case are dissimilar. In Lunn, the Third Circuit stated that the
District Court improperly failed to convert a motion to dismiss into a motion for summary
judgment when the District Court considered evidence that was not in the pleadings. Id. at
942. However, the appellant never raised the issue on appeal. Id. In a footnote, appellant
cited cases holding that district courts are limited to evidence presented on the face of the
complaint when deciding a motion to dismiss, but appellant "d[id] not challenge the
District Court's consideration" of the evidence outside the face of the pleadings in his case.
Id. at 943. The Third Circuit held that appellant had waived the argument because he had

failed to raise it and because the cases discussing the relevant rule were only presented in
a footnote.
Unlike the appellant in Lunn, Defendant has actually raised the issue that the
footnote discussed. In the body of Defendant's motion for summary judgment, Defendant
asserts that "Hartford is vested with discretionary authority to determine eligibility for
benefits" (ECF No. 60 at 13); the footnote follows this sentence and provides a detailed
26

explanation of that assertion. Further, Defendant attached to its motion for summary
judgment a three-page sworn affidavit from Ms. Annette Moore, Director of Litigation and
Appeals for the Group Benefits Department at The Hartford, in which Ms. Moore describes
the relationship between Hartford Life and Hartford Fire and explains that the decisionmakers were agents of Hartford Life. (See ECF No. 60-2 at 2-4.) Finally, Defendant spends
approximately five pages of its brief in opposition to Plaintiff's motion for summary
judgment arguing why the decision-makers were agents of Hartford Life, and why an
arbitrary and capricious standard of review is therefore appropriate. (ECF No. 64 at 9-14.)
In sum, this Court finds that Defendant has clearly raised the issue, and that it is therefore
not waived.
In conclusion, this Court finds that Hartford Life exercised the discretion with
which it was vested under the Policy. Therefore, Plaintiff's claim will be subject to review
under an arbitrary and capricious standard.

B. The Arbitrary and Capricious Standard
"Where an ERISA plan grants the plan administrator discretionary authority to
determine eligibility for benefits, we will uphold the administrator's decision unless it is
arbitrary and capricious." Becknell v. Severance Pay Plan of Johnson & Johnson & U.S. Affiliated

Companies, 644 F. App'x 205, 209 (3d Cir. 2016), citing Fleisher v. Standard Ins. Co., 679 F.3d
116, 120-21 (3d Cir.2012) (internal citations omitted). "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),

27

quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.1993) (internal quotation
marks and citations omitted).
"Plaintiff has the burden of proof that the Plan Administrator's decision to deny
benefits is an arbitrary and capricious decision." Brandeburg v. Corning Inc. Pension Plan For

Hourly Employees, No. CIV A. 04-1314, 2006 WL 2136481, at *1 (W.D. Pa. 2006), aff'd, 243 F.
App'x 671 (3d Cir. 2007). "Under this narrow standard, the reviewing court is not free to
substitute its own judgment for that of the plan administrator." McDonald, 2014 WL 4660683
at 4 (internal citations omitted).

"When

reviewing

an

administrator's factual

determinations, we consider only the evidence that was before the administrator when he
made the decision being reviewed." Fleisher, 679 F.3d at 121 (internal citations omitted);

Killian v. Hartford Life & Accident Ins. Co., No. CV 16-1377, 2017 WL 429905, at *10 (E.D. Pa.
2017).
"In deciding whether an administrator's conclusion is arbitrary and capricious,
courts consider procedural and structural factors of the decision making process." Patrick

v. Reliance Standard Life Ins. Co., No. CV 15-169-SLR-SRF, 2016 WL 4573877, at *9 (D. Del.
2016), report and recommendation adopted, No. CV 15-169-SLR/SRF, 2016 WL 5662138
(D. Del. 2016), aff'd, No. 16-3980, 2017 WL 2459832 (3d Cir. 2017). "Whereas '[t]he
structural inquiry focuses on the financial incentives created by the way the plan is
organized,' i.e., whether there is a conflict of interest, 'the procedural inquiry focuses on
how the administrator treated the particular claimant."' Miller v. Am. Airlines, Inc., 632
F.3d 837, 845 (3d Cir. 2011), quoting Post v. Hartford Ins. Co., 501 F.3d 154, 162 (3d Cir.2007).
"[W]hen an insurance company both funds a benefits plan and possesses the discretion to
28

determine eligibility under the terms of that plan, as is the case here, courts must take into
account the inherent structural conflict of interest." Boyles v. Am. Heritage Life Ins. Co., 226
F. Supp. 3d 497, 502 (W.D. Pa. 2016); see also Guthrie v. Prudential Ins. Co. of Am., 625 F.
App'x 158, 161 (3d Cir. 2015). This Court recognizes that Defendant has a structural
conflict of interest, and duly weighs this conflict in its analysis.
"In accordance with these principles, the Court will apply a deferential arbitrary
and capricious standard in reviewing Defendant['s] denial of Plaintiff's claim for total and
permanent disability benefits under the [Policy]." McDonald, 2014 WL 4660683 at *4, citing

Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525-26 (3d Cir.2009).
C. Analysis

Both parties have moved for summary judgment. Before turning to the merits, the
Court will briefly summarize each party's positions.
In her motion for summary judgment, Plaintiff alleges that Defendant's decision to
terminate her LTD benefits was arbitrary and capricious based on several "procedural
anomalies" in Defendant's handling of her claim. Specifically, Plaintiff claims: (1)
Defendant failed to demonstrate improvement in Plaintiff's condition before terminating
her benefits; (2) Defendant refused to have Plaintiff physically examined; (3) Defendant's
appeal review violated ERISA; (4) Defendant did not explain why it did not agree with
Plaintiff's treating physicians; and (5) Defendant improperly relied on a defective EAR. (See
ECF No. 57.) Additionally, Plaintiff claims (6) that Defendant improperly introduced a post

hoc justification for its decision to deny Plaintiff's benefits in its briefings before this Court.
(See ECF No. 62 at 15.)
29

Defendant claims that its decision to terminate Plaintiff's LTD benefits was not
arbitrary and capricious. Defendant states that it considered all the evidence in the
administrative record and contends that the evidence supported its decision to terminate
Plaintiff's LTD benefits. Specifically, Defendant claims that: (1) Plaintiff's pain management
specialists and the independent reviewing specialists believed that Plaintiff was capable of
performing full-time work; (2) Defendant performed an EAR which indicated that Plaintiff
could work several jobs given her physical restrictions; and (3) the ALJ determined that
Plaintiff could perform full-time work. Defendant thus asserts that its "decision to
terminate benefits was well supported, imminently reasonable, and certainly not arbitrary
and capricious." (ECF No. 60, at 21.)
The Court will address these claims under the arbitrary and capricious standard of
review. As described below, no reasonable juror could conclude that Defendant's decision
to terminate Plaintiff's LTD benefits was arbitrary and capricious. Therefore, Defendant is
entitled to summary judgment.

D. Plaintiff's Claims

1. Failure to Demonstrate Improvement
Plaintiff alleges that Defendant acted arbitrarily and capriciously because it
terminated her LTD benefits without demonstrating that her condition had improved. (See
ECF No. 57 at 9.) Specifically, Plaintiff claims that "after paying Ms. Potts STD and LTD
benefits for over thirty-two (32) months-including two (2) months of Any Occupation
benefits, Hartford abruptly changed its position and terminated Ms. Potts' LTD benefits."
(Id.) Plaintiff further claims that Defendant denied her claim based on the same medical

30

evidence it had previously relied on in approving her claim. (Id. at 10.) As noted below, this
Court disagrees with Plaintiff's arguments and finds that Defendant's failure to
demonstrate improvement does not support a finding that its decision was arbitrary and
capricious.
Defendant determined that Plaintiff was entitled to STD benefits, and then LTD
benefits for the entirety of the Own Occupation period. Plaintiff's benefits were terminated
after the Own Occupation period ended and Defendant determined that Plaintiff failed to
meet the heightened standard for "disabled" that applies during the Any Occupation
period. As Defendant avers, once the Own Occupation period ended, Defendant did not
need to show that Plaintiff improved before it terminated her benefits. Rather, to continue
to receive benefits, Plaintiff needed to establish that she was disabled under the more
stringent definition of disability under the Any Occupation standard.
"Courts 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 payment of benefits is more rigorous under the 'any occupation'
test." Hoch v. Hartford Life & Acc. Ins. Co., No. CIV.A. 08-4805, 2009 WL 1162823, at *17 (E.D.
Pa. 2009) (internal citations omitted); see Miller v. Mellon Long Term Disability Plan, No.
CIV.A. 09-1166, 2011 WL 4345813, at *11 (W.D. Pa. 2011), aff'd, 478 F. App'x 720 (3d Cir.

2012) (noting that "Defendants did not 'reverse' their position" instead, while [Plaintiff]
had presented evidence that she was initially disabled from her 'own occupation,' she
provided no evidence that she continued to be disabled in August 2006, or that she was
disabled from 'any occupation' as required by the Plan."); see also Rodriguez v. Reliance
31

Standard Life Ins. Co., No. 12-CV-04810 SOW MCA, 2014 WL 1494523, at *3 (D.N.J. 2014)
(finding no manifest error in decision to terminate benefits when "Plaintiff's benefits were
terminated, in part, because the standard of approval became stricter and Plaintiff no longer
qualified for benefits.")
Plaintiff cites Miller v. Am. Airlines, Inc., 632 F.3d 837 (3d Cir. 2011) for the
proposition that "[a]n administrator's reversal of its decision to award a claimant benefits
without receiving any new medical information to support this change in position is an
irregularity that counsels towards finding an abuse of discretion." Id. at 848. But in Miller
the plaintiff's benefits were terminated without any change in the requisite level of disability
that plaintiff needed to establish to receive benefits. Therefore, Miller has no bearing here.
Finally, Plaintiff suggests that Defendant acted arbitrarily because, once the Own
Occupation period ended, Defendant paid Plaintiff Any Occupation benefits for two
months before deciding to terminate her claim. (ECF No. 57 at 9.) This Court disagrees. As
previously noted, Defendant clearly stated in its November 11, 2014 letter that the Own
Occupation period had ended and that "[a]dditional benefits ... should not be construed as
an admission of continued liability." (ECF No. 240.) This Court declines Plaintiff's
invitation to impose liability on Defendant because it provided Plaintiff with an additional
two months of coverage after her Own Occupation benefits lapsed.
In sum, Defendant's failure to demonstrate improvement does not weigh in favor
of a determination that Defendant's denial of Plaintiff's claim for LTD benefits was arbitrary
and capricious.

32

2. Failure to Conduct a Physical Examination of Plaintiff

Plaintiff next contends that Defendant's denial of her LTD benefits was arbitrary
and capricious because Defendant failed to conduct a physical examination of Plaintiff to
determine her functional capacity. (ECF No. 57 at 12.)
This Court finds no authority to support Plaintiff's contention that Defendant was
obligated to have Plaintiff undergo a medical examination as part of Defendant's review
process. To the contrary, "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-govemed plan, even
if the plan permits it to do so." Killian v. Hartford Life & Accident Ins. Co., No. CV 16-1377,
2017 WL 429905, at *14 (E.D. Pa. 2017), citing Sollon v. Ohio Cas. Ins. Co., 396 F. Supp. 2d 560,
586 (W.D. Pa. 2005). "Indeed, ERISA does not require plan administrators to perform any
physical examinations." Killebrew v. Prudential Ins. Co. of Am., No. 3:15-CV-01415, 2017 WL
1519500, at *18 (M.D. Pa. 2017), citing Lamanna v. Special Agents Mut. Benefits Ass'n, 546 F.
Supp. 2d 261, 296 (W.D. Pa. 2008). Instead, "a decision to forego an IME and conduct only
a paper review, while not rendering a denial of benefits arbitrary per se, is another factor to
consider in the Court's overall assessment of the reasonableness of the administrator's
decision-making process." Killian, 2017 WL 429905 at *14, citing Schwarzwaelder v. Merrill

Lynch & Co., Inc., 606 F. Supp. 2d 546, 563 (W.D. Pa. 2009); see also Levine v. Life Ins. Co. of N.
Am., 182 F. Supp. 3d 250 *, 2016 U.S. Dist. LEXIS 53286 (E.D. Pa. 2016) (same).
In this instance, Defendant's decision to forgo a physical examination was not
arbitrary and capricious. While Plaintiff's pain management specialist, Ms. Jones, had
33

recommended that Plaintiff obtain functional capacity testing on two occasions in late
2012 (AR. 0905; AR. 0943), in July of 2013 she reported that Plaintiff could perform "light"
or "sedentary work" on a "full-time basis." (AR. 0730; AR. 0733.) Further, while Dr. Kem
indicated on several occasions that Plaintiff was unable to work on a full-time basis (see,
e.g., AR. 0685; AR. 0674; AR. 0621), her statements about Plaintiff's functional capacity

were inconsistent. 2
Certainly Defendant had the option to refer Plaintiff to functional capacity testing
before terminating her LTD benefits. However, based on the record before it, Defendant
had sufficient evidence to reasonably determine that a physical examination was not
needed; Ms. Jones, who was treating Plaintiff for pain, reported that Plaintiff could return
to full-time work; Dr. Kem, who made it clear that she was not treating Plaintiff for pain,
provided inconsistent opinions and indicated on two occasions that she would defer to
pain management; two independent record reviewers, Ors. Sood and Siebel, also
determined that nothing in Plaintiff's medical file indicated that she could not perform
full-time light or sedentary work. In sum, given the record before it, Defendant's decision
not to seek a physical examination was not "without reason, unsupported by substantial

2

For instance, Or. Kem first said she would "defer to pain mgmt," who, as stated above,
had reported that Plaintiff could perform "light" or "sedentary work" on a "full-time
basis." (AR. 0692-93.) Then, on November 20, 2013, Dr. Kem advised Defendant to
"[p]lease note, I am not treating any condition" of Plaintiffs, but then proceeded to state
that she did not believe that Plaintiff could work full-time; this contradicted her prior
statement that she would "defer to pain mgmt." (AR. 0674.) In a June 1, 2014 note, Dr.
Kem stated that she was "only treating chole[sterol]," noted that Plaintiffs work abilities
were "not assessed this visit," and once again advised Defendant to "consult pain
management" to determine Plaintiffs functional capabilities. (AR. at 0612.) As noted
above, pain management had stated that Plaintiff could return to light or sedentary fulltime work.
34

evidence or erroneous as a matter of law," as required under the arbitrary and capricious
standard. Miller, 632 F.3d at 845 (internal citations omitted).
Plaintiff further argues that Defendant's breached the express terms of the Policy
because it failed to have Plaintiff physically examined. (ECF No. 57at12-13.) This
argument is easily dismissed. The Policy reads, in the relevant part, "We have the right to
require You to: ... be examined by a Physician ... ". (AR. 0025.) A plain reading of the
Policy clearly indicates that Defendant had a right, but not an obligation, to submit
Plaintiff to a physical examination. Furthermore, Plaintiff cites no authority to support her
argument that she was entitled to a physical examination. See Griffin v. Hartford Life &

Accident Ins. Co., No. 6:16-CV-00024, 2017 WL 384384, at *6 (W.D. Va. Jan. 25, 2017) ("This
Court is not aware of, and Plaintiff has not provided, a case supporting Plaintiff's
contention that a provision such as this should be interpreted as a requirement rather than
a right.")
Plaintiff's next argues that Defendant breached the terms of the Policy because the
Policy did not permit Defendant to conduct a record review, and because the record
reviewers were not licensed to practice medicine in Pennsylvania. (ECF No. 57 at 13.)
Neither of these arguments is persuasive.
Nothing in the Policy prohibits Defendant from conducting a record review.
Plaintiff correctly notes that the Policy states that "We have the right to require You to: ...
be examined by a Physician, vocational expert, functional expert, or other medical or
vocational professional of Our choice." (AR. 0025; ECF No. 57 at 13.) However, Plaintiff
has not come forward with any evidence that the Policy restricts Defendant to requiring
35

Plaintiff to undergo a physical examination, nor identified any section of the Policy that
prevents Defendant from conducting a record review.
Furthermore, nothing in the Policy requires that record reviewers meet the
Policy's definition of "Physician" or be licensed to practice in the jurisdiction where
Plaintiff receives care. Plaintiff correctly observes that the Policy defines "Physician" as
someone "licensed to practice in the jurisdiction where care is being given." (AR. 0030.)
However, Defendant also has the right to have Plaintiff examined by a "vocational expert,
functional expert, or other medical or vocational professional of Our choice;" (AR. 0025.)
clearly, these persons are not "Physicians" and therefore nothing in the Policy requires
that any of these persons be licensed in the jurisdiction where Plaintiff receives care.
Further, the Policy does not prevent Defendant from seeking a record review, and
Plaintiff has not cited any language from the Policy that requires that a record reviewer be
from the jurisdiction where care is given.
Finally, Plaintiff argues that she was required to undergo a physical examination
because pain is subjective. (ECF No. 57 at 16.) However, Plaintiff cites to cases that do not
hold that a physical examination is required whenever a patient experiences pain. For
instance, while Plaintiff cites Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d
863, 872 (9th Cir. 2008), in that case the Ninth Circuit merely noted that "individual
reactions to pain are subjective and not easily determined by reference to objective
measurements;" it did not announce a rule requiring a physical examination. Plaintiff next
cites an excerpt from Moustafa v. ReliaStar Life Ins. Co., 2016 U.S. Dist. LEXIS 155257 (D.N.J.
2016) that discusses Kelly v. Reliance Standard Life Ins. Co., No. CIV.A. 09-2478 KSH, 2011
36

WL 6756932 (D.N.J. 2011). In Kelly, the court held that the denial of plaintiff's LTD benefits
was arbitrary and capricious because defendant failed to conduct a physical examination
and "gave no independent weight to the opinion of the only physician that actually
treated [plaintiff]." 2011WL6756932 at *8. As discussed above, the pain management
specialist who treated Plaintiff stated that she was capable of returning to "light" or
"sedentary work" on a "full-time basis." (AR. 0730; AR. 0733.)
Plaintiff also cites Songer v. Reliance Standard Life Ins. Co., 106 F. Supp. 3d 664 (W.D.
Pa. 2015), appeal dismissed (Aug. 7, 2015), but this case merely states that the failure to
obtain a physical examination "may be unreasonable" in certain circumstances (emphasis
added); it does not require a physical examination, much less hold that the failure to
obtain one is arbitrary and capricious. Id. at 675. Finally, in Gessling v. Grp. Long Term

Disability Plan for Employees of Sprint/United Mgmt. Co., 693 F. Supp. 2d 856 (S.D. Ind. 2010),
plaintiff's "treating physician ... repeatedly opined that [plaintiff] was disabled from
performing the duties of his own occupation ... ". Id. at 864. Here, the specialist who treated
Plaintiff for pain stated that she could return to "light" or "sedentary work" on a" fulltime basis." (AR. 0730; AR. 0733.)
In sum, Plaintiff has failed to persuade this Court that Defendant's failure to
obtain a physical examination of Plaintiff before terminating her LTD benefits weighs in
favor of Defendant's claim decision as being arbitrary and capricious.
3. Appeal Decision

Plaintiff claims that Defendant violated ERISA's requirement that there be a "full
and fair review of the claim and the adverse benefit determination." See 29 C.F.R. 2560.50337

l(h)(3)(i). In its letter denying Plaintiff's appeal, after Defendant stated that Plaintiff was
capable of returning to full-time work, Defendant stated that the EAR, which had been
performed pursuant to Defendant's initial decision to deny Plaintiff's LTD benefits,
"remains valid." (AR. 0219.) Plaintiff claims that Defendant violated ERISA because its
appeal decision "relied on" the same EAR that had been generated during the initial review
that resulted in Plaintiff's claim being denied. This Court rejects Plaintiff's claim.
Under ERISA, Defendant is required to "[p]rovide for a review that does not afford
deference to the initial adverse benefit determination ... ". 29 C.F.R. 2560.503-l(h)(3)(ii).
When considering an appeal, Defendant "shall consult with a health care professional who
has appropriate training and experience in the field of medicine involved in the medical
judgment." (Id. at (h)(3)(ii)). Further, "the health care professional engaged for purposes of
a consultation under paragraph (h)(3)(iii) of this section shall be an individual who is
neither an individual who was consulted in connection with the adverse benefit
determination that is the subject of the appeal...". Id. at (h)(3)(v).
Defendant clearly complied with these requirements. Plaintiff does not dispute that,
for purposes of deciding Plaintiff's appeal, Defendant obtained record reviews from three
Board Certified medical professionals with "experience in the field of medicine involved in
the medical judgment," who played no part of the initial decision to deny Plaintiff's claim.
Rather, Plaintiff suggests that the appeal decision was improper because after these three
medical professionals reported that Plaintiff was not disabled, and after Defendant again
decided to deny Plaintiff's claim, Defendant then determined that the EAR previously
performed was "still valid."

38

Plaintiff fails to recognize that the Employability Analysis was not part of any
"medical judgment." Defendant generated the EAR after Defendant determined, based on
its review of Plaintiff's file, that Plaintiff was not disabled under the Any Occupation
standard. Moreover, under this Court's reading of the regulation, nothing prevents
Defendant from determining that the initial EAR is still valid, after Plaintiff's appeal was
denied following consultations from independent health care professionals not involved in
making the original medical judgment.
In sum, the fact that Defendant determined that the EAR was still valid does not
weigh in favor of a determination that the denial of Plaintiff's claim for LTD benefits was
arbitrary and capricious.

4. Adequacy of Explanation for Denying Plaintiff's Claim for LTD Benefits
Plaintiff claims that Defendant's denial letter failed to explain why Defendant
"disagreed with [Plaintiff's] treaters." (ECF No. 57 at 18.) Plaintiff further claims that "to
the extent that [Defendant] sought to rely on its non-treating doctors, it was required to
explain why it accepted their medical opinions over [Plaintiff's] treaters in its initial
termination letter so that [Plaintiff] could have the opportunity to respond." (Id. at 19.)
According to Plaintiff, Defendant's failure to do so weighs in favor of a determination that
Defendant's benefits decision was arbitrary and capricious.
Defendant avers that Plaintiff is, in effect, attempting to conflate two rules into one.
According to Defendant, the first question "is the substantive one of whether [Defendant]
terminated the claim for an improper reason ... ". (ECF No. 64 at 17.) The second is the
"procedural question of whether [Defendant] failed to provide an opportunity for Plaintiff

39

to respond to the reason for its determination ... ". (Id.) Defendant asserts that, contrary to
Plaintiff's contention, it is not required to explain, in the initial denial letter, why it credited
opinions of the independent record reviewers over the opinions of certain of Plaintiff's
treating physicians. (See Id. at 17-20.)
Courts may not "impose on 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, 824, 123 S. Ct. 1965, 1967, 155 L. Ed. 2d 1034
(2003); Steele v. Boeing Co., 225 F. App'x 71, 75 (3d Cir. 2007); Neptune v. Sun Life Assur. Co.

of Canada, No. 10-CV-2398, 2013 WL 5273785, at *12 (E.D. Pa. 2013); Dinote v. United of Omaha
Life Ins. Co., 331 F. Supp. 2d 341, 348 (E.D. Pa. 2004). "Plan administrators, of course, may
not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a
treating physician." Black & Decker, 538 U.S. at 834; Cerneskie v. Mellon Bank Long Term

Disability Plan, 142 F. App'x 555, 558 (3d Cir. 2005) (same). However, "plan administrators
are not obliged to accord special deference to the opinions of treating physicians." Black &

Decker, 538 U.S. at 825; Cerneskie, 142 F. App'x 558 ("under ERISA, no special deference [is]
due to treating physicians"); Cree/man v. Carpenters Pension & Annuity Fund of Philadelphia
& Vicinity, 945 F. Supp. 2d 592, 604 (E.D. Pa. 2013) (ERISA plan administrator need not

"accord deference to a treating physician's opinion."). "[N]or must [a plan administrator]
explain a decision to credit medical evidence that conflicts with the report of a treating
physician." Creelman, 945 F. Supp. 2d at 604, citing Black & Decker, 538 U.S. at 834; Stratton

v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 257-58 (3d Cir. 2004); Shatto, 2016 WL 5374106
at 13 (same).
40

This Court rejects Plaintiff's argument that Defendant was required to explain all of
its bases for disagreeing with Plaintiff's treating physicians in its denial letter. 3 As noted
above, Defendant was not required to give any extra weight to the opinions of Plaintiff's
treating physicians and, contrary to Plaintiff's contention, did not have a "discrete burden
of explanation." Black & Decker, 538 U.S. at 824. Moreover, "[a] denial letter is substantially
compliant with the regulations when the claimant is provided a statement of reasons that,
under the circumstances of the case, permitted a sufficiently clear understanding of the
administrator's position to permit effective review." Morningred v. Delta Family-Care &

Survivorship Plan, 790 F. Supp. 2d 177, 194 (D. Del. 2011), clarified on denial of
reconsideration (June 30, 2011), aff'd, 526 F. App'x 217 (3d Cir. 2013).
The denial letter clearly complied with these requirements. It listed the sources of
information that Defendant relied on in making its decision; it noted that Drs. Sood and
Siebel concluded that Plaintiff could work subject to certain restrictions and limitations, and
it described these restrictions and limitations in detail; it stated that, based on Plaintiff's

The court notes that the cases Plaintiff cites to support this argument do not establish the
rule Plaintiff asks this Court to adopt. For instance, in Morgan v. The Prudential Insu. Co. of
Am., 755 F. Supp. 2d 639 (E.D. Pa. 2010), the issue was not that the letter itself did not
sufficiently explain the decision to deny benefits, but rather that the decision to deny
benefits was unreasonable. Similarly, in Holmes v. Metro. Life Ins. Co., 2011 U.S. Dist. LEXIS
122525, 2011WL4916405 (M.D. Pa. 2011), the issue was not the denial letter itself but the
fact that of four doctors who rendered medical opinions, only one "seems plausibly to
support" the denial of benefits. Id. at 30. Furthermore, Lamanna v. Special Agents Mut.
Benefits Ass'n, 546 F. Supp. 2d 261 (W.D. Pa. 2008) was a fact-specific holding that the
letter was deficient because there was "strongly divergent" evidence regarding plaintiff's
fibromyalgia, yet the letter merely stated that "all documentation necessary to render a
decision" had been considered; the letter did not state which specific evidence had been
reviewed, and did not mention at all why the insurer did not credit the opinions of
plaintiff's treating physicians. Id. at 294-95.
3

41

restrictions and limitations, an EAR had been performed showing that Plaintiff was
qualified for six occupations, and listed these six occupations; and it informed Plaintiff of
her right to appeal and explained how Plaintiff could exercise that right. (AR. 0228.)
This Court further finds that Defendant did not "arbitrarily refuse to credit"
Plaintiff's "reliable evidence" from her treating physicians. Id. at 834. Defendant conducted
a thorough review of Plaintiff's medical file. Defendant obtained two independent
physicians to conduct record reviews, Drs. Sood and Siebel. Based on their reports,
Defendant reasonably determined that the record lacked "reliable evidence" that Plaintiff
was physically disabled under the Any Occupation standard. Defendant accordingly
denied Plaintiff's claim for LTD benefits.
In terms of her physical capabilities, Plaintiff admits that her "treating pain
management specialist, DNP Jones, confirmed that Plaintiff could work." (ECF No. 63 at 5.)
Moreover, Dr. Kern's assessment about Plaintiff's functional capacity was inconsistent; Dr.
Kem reported that Plaintiff could not work full-time on November 23, 2013 and again on
May 20, 2014 (see AR. at 0673, 0621) and had previously opined that she was a "poor work
candidate" on January 8, 2014. (AR. 0594) But in the November 23, 2013 letter where she
said Plaintiff could not work, Dr. Kem herself noted that she was "not treating any
condition." (AR. 0674) Further, Dr. Kem previously stated that she would "defer to pain
mgmt" about Plaintiff's functional capacity. (AR. 0692-93.) The Court further notes that, as
far as this Court can determine from its reading of the record, the last time that Dr. Kem
commented on Plaintiff's work capacity before Plaintiff's benefits were terminated was in
the APSF dated "6/1/14," where Dr. Kem stated that Plaintiff "sees pain mgmt. monthly to
42

treat pain," noted that "we are only treating chole[sterol]," and directed Defendant to
"consult pain mgmt" regarding Plaintiff's work abilities because they were "not assessed
this visit." (AR. 0611-612.) Given this evidence, Defendant reasonably decided that Dr.
Kem' s statements did not indicate that Plaintiff was disabled under the Any Occupation
standard. And Defendant reasonably determined after a thorough review that it was
crediting the opinions of Ms. Jones and Drs. Sood over that of Dr. Kem with regards to
Plaintiff's physical ability to work.
Defendant's denial letter explicitly stated that, based on her "Mental Nervous
Review," Dr. Siebel concluded that there was "no objective information or intensity of
treatment that supports psychiatric restrictions and limitations." (AR. 0227.) While the
denial letter did not say so explicitly, Dr. Siebel' s opinion that the record did not indicate
that Plaintiff required psychiatric restrictions is clearly a response to Dr. Kammiel' s opinion
that Plaintiff was "unable to work due to impact of physical pain on her mood, and
depression." (AR. 0580.) While Defendant's denial letter could have made it more clear that
it was crediting Dr. Siebel' s medical opinion over Dr. Kammiel' s, the letter explained why
Defendant was doing so-because, according to Dr. Siebel, Dr. Kammiel's opinion on
Plaintiff's work capacity was not supported by objective evidence or the intensity of
treatment that Plaintiff had received.
Plaintiff further asserts that Plaintiff did not have an opportunity to respond to the
denial because Defendant did not explain why it disagreed with Plaintiff's treaters until the

43

appeal denial letter. This argument is unpersuasive. 4 As noted above, Defendant did not
have a special burden to explain why it disagreed with Plaintiff's treaters, and Defendant's
denial letter gave Plaintiff a "sufficiently clear understanding of the administrator's
position to permit effective review." Morningred, 790 F. Supp. 2d at 194.
In sum, this Court does not find that the content of either the initial denial letter
nor the appeal denial letter weighs in favor of a finding that denial of Plaintiff's LTD
benefits claim was arbitrary and capricious.
5. Employability Analysis Report

Next, Plaintiff asserts that Defendant's EAR was flawed. Specifically, Plaintiff
alleges that (1) the report did not consider and apply Plaintiff's limitations to each of the
jobs identified; (2) was based on outdated information that has not been updated since
1977; (3) failed to rely on all of the medical evidence in Plaintiff's file, and (4) did not take
into account the prerequisites, skills, and job training required for the proposed jobs. (ECF
NO. 57 at 20.) As noted below, none of these arguments is persuasive.
Plaintiff's first argument is misguided. Contrary to Plaintiff's assertion, the EAR
included a detailed discussion of Plaintiff's functional capacities (AR. 0512-513) and a
long list of Plaintiff's various limitations and restrictions. (AR. 0515-516.) Further, the jobs

Plaintiff cites Bradley v. Liberty Life Assur. Co., 2016 U.S. Dist. LEXIS 80895 (D.N.J. 2016) to
support this argument. However, in Bradley the appeal letter not only reaffirmed that
Plaintiff's claim was being denied; it "additionally [stated that Plaintiff] was not
undertaking the appropriate available treatment to obtain disability benefit[s] under the
Plan." Id. at 27. Unlike in Bradley, Defendant's denial letter merely elaborated on the
issues already raised in the initial denial letter, i.e. that Plaintiff had failed to demonstrate
that she met the definition of "disabled" under the Any Occupation standard; it did not
give an additional basis for why it denied Plaintiff's claim in the first place.

4

44

that Plaintiff was matched with were determined based on Plaintiff's functional
limitations and restrictions. Moreover, the EAR contained a lengthy description of the
requirements of each job Plaintiff was matched with. (AR. 0519-531.) While the denial
letter did not specifically state what the specific physical requirements were for each of
the jobs, this is of little consequence because Plaintiff was only matched with jobs in the
first place that Plaintiff could perform given her restrictions and limitations.
Plaintiff cites Gardner v. Unum Life Ins. Co. of Am., 354 F. App'x 642 (3d Cir. 2009) to
support her contention that the EAR was flawed. In Gardner, the Third Circuit noted that
the insurer "was under a duty to make a reasonable inquiry into the types of skills
[plaintiff] possesses, and whether they transfer to another job in which she can be
gainfully employed as defined by the policy." Id. at 649. In Gardner, the court held that it
could not determine whether the plan administrator fulfilled its duty, because "[t]he
record sheds little light on the depth of [the plan administrator's] vocational analyses." Id.
Unlike in Gardner, the record indicates that Defendant clearly fulfilled its duty. Defendant
took into account the restrictions listed by Drs. Sood and Siebel, and matched Plaintiff
with jobs based on her limitations.
Plaintiff's invocation of Havens v. Cont'l Cas. Co., 186 F. App'x 207 (3d Cir. 2006) is
similarly unpersuasive. In Havens, the Third Circuit reversed the District Court's
judgment in favor of defendant, holding that "on the record presented here, [plaintiff] is
'disabled' from 'any occupation/ as those terms are used in his contract of long-term
disability insurance with [defendant]." Id. at 213. Despite the fact that in Havens the record
clearly indicated that plaintiff had "specific and stringent restrictions" regarding her work
45

capacity, "[t]he expert's report simply listed a few general factors considered and then
named the three [alternative] occupations," without explaining the physical requirements
of those occupations or describing how the expert arrived at these occupations. Id. Unlike
in Havens, Defendant's expert stated how he arrived at the occupations listed in the
report, namely by inputting Plaintiff's restrictions and limitations and identifying jobs
that Plaintiff could perform given those parameters.
Plaintiff next claims that the EAR "relied upon outdated information [because a]ll
of the occupations identified in the Employability Analysis relied on job descriptions
contained in the Dictionary of Occupational Titles ('DOT') which were last updated in
1977." (ECF No. 57 at 21.) However, "the Department of Labor replaced the DOT with the
Occupational Information Network (O*NET), a database that is continually updated
based on data collection efforts that began in 2001 ... ". Feeley v. Comm'r of Soc. Sec., No.
CIV. 14-4970 KM, 2015 WL 3505512, at *10 (D.N.J. 2015); Cunningham v. Astrue, 360 F.
App'x 606, 616 (6th Cir. 2010) (same). In fact, the EAR provided an "O*NET Code
number" for each job Plaintiff was matched with. Plaintiff has presented no evidence that
the descriptions for the specific jobs Plaintiff was matched with have not been updated
since 1977.
Plaintiff further claims that the EAR was flawed because it did not consider "all"
of Plaintiff's medical evidence. (ECF No. 75 at 22.) Specifically, Plaintiff notes that the
EAR only used functional capacities from Drs. Sood and Siebel and failed to take into
account the opinions of Plaintiff's treaters. (Id.) However, as noted above, Drs. Sood and

46

Siebel considered notes and reports from Plaintiff's treating physicians when reaching
their own conclusions about Plaintiff's restrictions.
Finally, Plaintiff argues that the EAR violated the terms of her Policy. Plaintiff
notes that her Policy defines Any Occupation as a job "for which You are qualified by
education, training, or experience." (AR. 0028.) Plaintiff states that this provision was
violated because the jobs listed in the EAR all have a "Specific Vocational Preparation"
("SVP") score of 3 or higher, meaning that, at a minimum, they would entail one to three
months of training before Plaintiff were qualified; in fact, the SVP for the "Closest" match
is 5, requiring from 6 months to 1 year of training. (ECF No. 57 at 23.) However, Plaintiff
fails to recognize that the fact that SVP "includes training" such as "[ e]ssential experience
in other jobs (serving in less responsible jobs which lead to the higher grade job or serving
in other jobs which qualify)." (Dictionary of Occupational Titles, Appendix C:
Components of the Definition Trailer, https://occupationalinfo.org/appendxc_l.htrnl#II
(last visited September 11, 2017)).
This Court also notes that the EAR states that Plaintiff's "[ w ]ork history is
reported as General Manager-Area Training Manager" from 1994 to 2012. (AR. 0512.)
Given that Plaintiff has eighteen years of relevant experience, it is unlikely that extensive
training will be required for her to transition to jobs that are "Closest" or "Good" matches.
Moreover, "it is disingenuous of Plaintiff to argue [s]he is not qualified for Closest
matches because of the minimum training requirement, when Closest is the highest
category of match available in this type of report." Griffin v. Hartford Life & Accident Ins.
Co., No. 6:16-CV-00024, 2017 WL 384384, at *8 (W.D. Va. 2017) (denying plaintiff's claim

47

that job matches impermissibly required additional job training when the "Closest"
matches were SVP 4 or higher.)
In sum, this Court finds that Defendant's EAR does not weigh in favor of a finding
that termination of Plaintiff's benefits was arbitrary and capricious.
6. Social Security Denial

Finally, Plaintiff claims that Defendant argued for the first time before this Court
that part of the reason why it rejected Plaintiff's claim for LTD benefits was because the
ALJ previously denied her claim for social security benefits. (ECF No. 62 at 21-22.)
Plaintiff argues that Defendant thus improperly relied on a post hoc argument to support
its decision. However, in the letter denying Plaintiff's appeal, Defendant noted that
Plaintiff's application for Social Security Disability Benefits had been "denied by the
Administrative Law Judge." (AR. 0216.) Plaintiff seems to suggest that, because
Defendant raised the fact of the Social Security denial in response to Plaintiff's assertion
that Defendant required her to apply for Social Security benefits, the Social Security denial
does not constitute a distinct "argument" for why Defendant denied her claim.
Without getting into a theoretical or semantic discussion about what constitutes an
"argument," this Court simply notes that the appeal denial letter explicitly mentioned that
the ALJ had denied Plaintiff's Social Security claim. Therefore, the fact that Defendant
reiterated this fact in its briefings before this Court does not weigh towards a finding that
its denial of Plaintiff's claim was arbitrary and capricious.

48

VI.

Conclusion
In conclusion, this Court finds that Plaintiff has failed to meet her burden to

establish that Defendant's denial of her claim for LTD benefits was arbitrary and capricious.
Therefore, Plaintiff's motion for summary judgment will be denied, and Defendant's
motion for summary judgment will be granted. An appropriate order follows.

49

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JENNIFER POTTS,

)
)

Plaintiff,

)

v.

CIVIL ACTION NO. 3:16-35

)

JUDGE KIM R. GIBSON

)
)

HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,

)
)

)

Defendant.

)

ORDER
AND NOW, this 28th day of September, 2017, upon consideration of the Plaintiff's
motion for summary judgment (ECF No. 56), Defendant's motion for summary judgment
(ECF No. 59), and for the reasons set forth in the accompanying memorandum opinion, IT
IS HEREBY ORDERED as follows:
1.

Plaintiff's motion to for summary judgment is (ECF No. 56) is DENIED.

2.

Defendant's motion for summary judgment (ECF No. 59) is GRANTED

with respect to all of Plaintiff's claims, which are dismissed with prejudice.

BY THE COURT:

KIM R. GIBSON
UNITED ST A TES DISTRICT JUDGE