Figueiredo v. CIGNA Group Insurance et al

Filing 30

MEMORANDUM AND ORDER denying 13 Motion for Summary Judgment; granting 17 Motion for Summary Judgment- So Ordered by Chief Judge Mary M Lisi on 6/8/10. (Barletta, Barbara)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

DORA FIGUEIREDO, Plaintiff,
v.

C.A. No. 09-165ML

L I F E INSURANCE COMPANY OF NORTH AMERICA, Defendant.

MEMORANDUM A N D O R D E R

The p l a i n t i f f i n t h i s case, Dora Figueiredo ("Figueiredo"), challenges the t e r m i n a t i o n of long term d i s a b i l i t y ("LTD") b e n e f i t s under an employee benefit welfare plan. After removing the case to

federal court pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C.
§§

100 e t seq.

("ERISA"),

the defendant,

Life Insurance Company of North America ("LINA") f i l e d a motion for summary judgment, t o which Figueiredo responded with a cross motion for summary judgment. the provisions of Upon review of the p a r t i e s ' memoranda and LTD Plan in which that Figueiredo was a to

the Court

participant,

this

determined

LINA's

decision

terminate Figueiredo's benefits

is not entitled to deferential

review and that the administrative record will be reviewed de novo. Figueiredo v. Life Ins. Co. of North America, - F.Supp.2d - , 2010 WL 7 3 7 6 5 2 ( D . R . I . 2 0 1 0 ) . Accordingly, the parties were instructed

1

to f i l e m e m o r a n d a t o a d d r e s s

(1)

whether,

under de novo review,

LINA's d e c i s i o n was i n e r r o r ; a n d (2) what a p p r o p r i a t e remedy may be ordered by this Court. Both parties have submitted supplemental memoranda as directed and the Court has conducted a thorough review of the administrative record. LINA's motion for For the reasons set forth below, is DENIED a n d F i g u e i r e d o ' s

summary judgment

m o t i o n f o r s u m m a r y j u d g m e n t i s GRANTED. I. Facts F i g u e i r e d o i s a 5 7 y e a r o l d R h o d e I s l a n d r e s i d e n t who b e g a n employment with Osram Sylvania, Inc. (UOsram") in 1988. AR 0 0 6 .

As p a r t o f h e r e m p l o y m e n t b e n e f i t s , F i g u e i r e d o w a s a p a r t i c i p a n t i n Osram's Long Term D i s a b i l i t y Plan (the UPlan"). SUF 1 . Osram

p u r c h a s e d G r o u p LTD P o l i c y N o . LK 0 3 0 0 4 3

( t h e U p o l i c y " ) f r o m LINA,

e f f e c t i v e J a n u a r y I , 1 9 9 9 , t o f u n d b e n e f i t s u n d e r t h e P l a n . SUF 2 , AR 1 1 7 . The Policy provides, i n t e r alia, t h a t U[s]atisfactory proof of Disabili ty must be provided to the Insurance Company, at the

Employee's expense, before benefits will be paid."

SUF 1 0 , AR 1 3 3 .

In addition, the Policy states that uDisability Benefits will end . . [on] [t]he date the Insurance Company determines an Employee SUF I I , AR 1 3 3 . Based on Figueiredo's age at

is not Disabled."

the time she became disabled, any benefit payments to her terminate automatically at age 65. AR 1 2 1 .

The Policy provides the following d e f i n i t i o n of Disability:

2

An

Employee Sickness,

is

Disabled

if,

because

of

Injury

or

1. he or she i s unable to perform a l l the material duties of his or her regular occupation, or solely due to Injury o r S i c k n e s s , h e o r s h e i s u n a b l e t o e a r n m o r e t h a n 80% o f his or her Indexed Covered Earnings; and 2. a f t e r D i s a b i l i t y Benefits have been payable for 12 months, he or she i s unable to perform a l l the material d u t i e s of any occupation f o r which he o r she may reasonably become qualified based on education, training or experience, or solely due to Injury or Sickness, he or s h e i s u n a b l e t o e a r n m o r e t h a n 80% o f h i s o r h e r I n d e x e d Covered Earnings. SUF 1 2 , AR 1 2 0 , 1 2 3 , 1 2 6 , 1 2 9 . In September 2001, Figueiredo was employed as an "Inspector," which involved sorting and moving inventory i n the Osram f a c i l i t y . SUF 3 , s e e AR 6 4 4 ( d e s c r i b i n g d a i l y j o b d u t i e s a s " f i l l b o x e s a n d put them on trays"). T h e DaTI O c c u p a t i o n a l R e q u i r e m e n t s , which

define the necessary strength level for the occupation as "light," s e e SUF 3 , further list tasks for the occupation as "Lifting,

Carrying, Pushing, Pulling 20 Lbs. occasionally, frequently up to 1 0 LBS . , o r n e g l i g i b l e a m o u n t s c o n s t a n t l y . Can include walking

and/or standing frequently even though weight i s n e g l i g i b l e . Can include pushing and/or pulling of arm and leg controls." AR 5 1 6 .

According t o Vocational Counselor Joy Sasson, the job "may require physically the ability to carry, occasionally. p u s h a n d p u l l u p t o 20 lbs.,

This occupation requires the ability to stand or

The D i c t i o n a r y o f O c c u p a t i o n a l T i t l e s ("DOT") i s a s t a n d a r d and Training reference work created by the EmploYment Administration. 3

walk f o r p r o l o n g e d p e r i o d s o f t i m e . "

AR 7 8 , AR 6 2 8 .

A prior job

evaluation by Osram notes t h a t the Job T i t l e of uInspect and Pack F i n i s h e d Ware" an uInspector U[ 1 ] i f t s u p t o 4 0 L b s , o n o c c a s i o n . " Packer," standing is required AR 6 3 0 . For

frequently

(2.5-5

hours).

AR 6 3 1 .
2001,

On S e p t e m b e r 2 4 ,

Figueiredo was seen by her general (uDr. Nunes"), for pain in On O c t o b e r II,
2001,

p h y s i c i a n , D r . B e l a r m i n o A. N u n e s , M . D . her left knee and leg. SUF 4 ,

AR 2 0 5 .

F i g u e i r e d o u n d e r w e n t a n MRI o f t h e l e f t k n e e , w h i c h r e v e a l e d a n uundersurface tear of the posterior horn and body of the lateral meniscus." Surgeon Dr. SUF 5 r Robert AR 2 3 6 . J. On D e c e m b e r 1 3 , (UDr.
2001,

Orthopedic an

Fortuna

Fortuna")

performed

arthroscopic partial knee. AR 2 7 8 .

lateral meniscectomy on Figueiredo's

left

Between January and April of 2002,

Figueiredo

p a r t i c i p a t e d i n p h y s i c a l t h e r a p y w i t h W i l l i a m H u l l , MPT ( U H u l l " ) , but discontinued following her fourteenth visit after reporting significant pain during the process. AR 2 8 3 - 2 8 4 .

As a R h o d e I s l a n d r e s i d e n t , F i g u e i r e d o w a s i n i t i a l l y e n t i t l e d to, and received, state temporary disability benefits. AR 9 3 . On

M a r c h I , 2 0 0 2 , F i g u e i r e d o f i l e d a c l a i m w i t h LINA f o r LTD b e n e f i t s . SUF 7 , AR 6 4 5 - 5 1 . On A p r i l
30, 2002,

Figueiredo received a

notification from Cigna Group Insurance (UCigna")2 that her claim

2

Figueiredo dismissed a l l claims against Osram and Cigna by s t i p u l a t i o n . S t i p u l a t i o n , April IS, 2009 (Doc. # 3) .

4

had b e e n a p p r o v e d , SUF 9 , AR 6 0 6 . March 24, 2002. SUF 8 , AR 0 0 6 .

Benefit payments commenced on

On A p r i l 1 , 2 0 0 2 , F i g u e i r e d o u n d e r w e n t d i a g n o s t i c i m a g i n g o f her right shoulder for
I

pain.

The

imaging

report

showed
II

"no

fractures, dislocations

or other bone or joint pathology .

AR 2 3 0 .

Records preceding Figueiredo's knee surgery I which precipitated the finding of disabilitYI state that she sought treatment for pain in her right shoulder and l e f t upper back as early as January 24, 2000. AR 2 4 5 . At that time l Figueiredo reported that l i f t i n g and her pain. Id. Figueiredo was prescribed AR

pushing

increased

Naproxen l light duty, 246. On J u n e Figueiredo/s
II

and six sessions of physical therapy .

2002

1

a

f o l l o w - u p MRI r e v e a l e d a According to

new t e a r of Dr. Fortuna
I

lateral

meniscus.

Figueiredo was "uncertain as t o whether o r not she want red] proceed with arthroscopy at the present time." sought a second opinion with Dr.
Hd r s c h ,

to

AR 2 6 6 . who

Figueiredo that

suggested

additional surgery might worsen her condition.

AR 7 4 .

For the next three years, Figueiredo saw Dr. Fortuna on about 30 occasions for varying complaints, including continuing

d i f f i c u l t i e s with her kneel severe neck and arm pain l weakness of grip in the right hand
I

and numbness in the l e f t leg.
1

See Dr.
1

Fortuna/s Office Notes from November 12 2005 . AR 2 6 3 - 6 6 .

2001 through March 25

5

On May 2 2 ,

2002,

Cigna informed Figueiredo that the Plan

required her to apply for Social Security Disability Insurance ( " S S D I " ) . AR 5 9 3 . Cigna also advised her that, i f she chose not

to apply for SSDI b e n e f i t s , the Plan "allows f o r a reduction of your Long Term D i s a b i l i t y b e n e f i t s by an amount estimated t h a t you would be eligible to receive." Id. (Emphasis i n o r i g i n a l ) . The

Plan also provides "for a reduction of your monthly benefits by any S o c i a l S e c u r i t y b e n e f i t s p a i d f o r t h a t s a m e p e r i o d . " AR 6 0 7 . July 25, 2002, Figueiredo was awarded SSDI payments. SSDI Award Notice states AR 5 8 8 . in a that Figueiredo became AR 9 7 . disabled On The on

September 24, 2001. 5 full

Because she had to be "disabled for row before [she was] entitled to

calendar months

benefits," Figueiredo's f i r s t month of entitlement was March 2002. 3 After continuing to complain of pain in her shoulders,

Figueiredo underwent diagnostic imaging of her spine and right shoulder on November 25, 2002. No f r a c t u r e s , d i s l o c a t i o n s o r o t h e r AR

bone or joint pathology were detected on the shoulder imaging. 449.

However, the diagnostic imaging report of Figueiredo's spine AR 2 2 4 .

revealed that she suffers from a "degenerated C6-7 disc."

According to interpreting physician Dr. Richard Anderson, the "C6-7 disc is moderately narrowed with small associated marginal

osteophytes. The associated neural foramina are mildly narrowed

3 Once Figueiredo became e l i g i b l e for SSDI, LINA's benefit payments to Figueiredo were limited to $100 monthly payments, the m i n i m u m c o v e r a g e . S e e e . g . AR 5 3 2 , AR 6 0 6 .

6

bilaterally .

Other discs and vertebral bodies are maintained in AR 2 2 4 , AR 2 7 6 .

height. Alignment i s anatomic."

A P h y s i c a l A b i l i t y A s s e s s m e n t F o r m ("PAA F o r m " ) p r o v i d e d b y D r . Fortuna to Cigna on April 22, 2002 s t a t e s t h a t , in an 8-hour

worday, Figueiredo can occasionally « 2 . 5 hours) l i f t or carry 10 pounds and that she can s i t , stand, walk, or climb regular s t a i r s occasionally. AR 6 2 1 . Dr. Fortuna noted that Figueirdo cannot

s t o o p a t a l l a n d t h a t s h e i s u n a b l e t o k n e e l , c r o u c h , o r c r a w l . AR 622. He c o n f i r m e d t h a t F i g u e i r e d o i s a b l e t o r e a c h o v e r h e a d , a t

desk level, and below the waist, and that she i s capable of fine manipulation and simple and firm grasps with either hand . At a December 30, 2002 office visit, AR 6 2 2 .

Figueiredo reported A physical exam

increasingly severe neck and right arm pain.

reveals that she has "significant d i f f i c u l t y moving her neck" and is "barely able to perform any extension whatsoever. With l a t e r a l bending, Forward

flexion is not too bad.

she is reporting

numbness developing i n the right hand."

AR 3 7 2 . A n x - r a y s h o w s

t h a t Figueiredo s u f f e r s from degenerative disc disease a t C6-C7, a n d a s u b s e q u e n t MRI s h o w s c e n t r a l d i s c h e r n i a t i o n a t C 5 - C 6 , a s well as "some foraminal stenosis on t h a t side a t multiple levels." AR 2 6 5 . change T h e J a n u a r y 9 , 2 0 0 3 MRI r e p o r t n o t e s " [ m ] i l d d e g e n e r a t i v e in the cervical spine with mild to moderate foraminal

narrowing as well as mild central stenosis a t C5-6 and C6-7 as described." AR 2 7 4 . Dr. Fortuna prescribed physical therapy for

7

Figueiredo a n d v a r i o u s p a i n m e d i c a t i o n s , Vicodin, Celebrex, and Vioxx. Id.

including Tylenol # 3,

At the same time, Figueiredo

continued to see Dr. Nunes on approximately a dozen occasions for varying complaints, including persistent headaches, continuing AR 1 8 5

problems with her l e f t knee, neck pain, and right arm pain . -207. On January 2, 2003 , Dr. Fortuna submitted

additional

information per LINA's request,

which confirmed a diagnosis of

cervical radiculopathy with symptoms of severe arm and neck pain. At the time, Figueiredo was prescribed Vicodin f o r pain and was AR 5 5 4 . Office notes

s c h e d u l e d f o r a n MRI o f t h e c e r v i c a l s p i n e . by Dr. Fortuna from

February 6, 2003 s t a t e t h a t Figueiredo has

experienced no r e l i e f from physical therapy and that she i s s t i l l experiencing " s i g n i f i c a n t r a d i c u l a r complaints down the r i g h t arm ." AR 2 6 5 . On F e b r u a r y 2 0 , 2 0 0 3 , F i g u e i r e d o c o n s u l t e d w i t h N e u r o l o g i s t D r . B a r r y L. numbness." Levin, AR 2 2 2 . M.D. ("Dr. Levin") for "right arm pain and

According to the Electrodiagnostic Report,

Figueiredo suffered from "intermittent pain in the right upper extremity, radiating from the shoulder to the l a t e r a l arm, dorsal forearm thumb. She also reported numbness i n the same area and a feeling of weakness in her right hand." unable to perform "due to a complete EMG AR 2 2 2 . Dr. Levin was study on

[electromyogram] of EMG study

Figueiredo

poor

tolerance

and

patient

8

9

On D e c e m b e r

10,

2003,

Dr.

Fortuna

submitted

a

Follow-Up

Medical Request Form on which he s t a t e d t h a t Figueiredo was uunable to do any l i f t i n g of any kind no over head work." responded functional in the affirmative to to the your question patient UDo from Although he you expect

deficits

prevent

performing

essential job functions?"

he also noted that she could perform

u s e d e n t a r y w o r k o n l y [ i l l e g i b l e ] p a i n & n u m b n e s s . " AR 5 2 8 . 4 In August 2005, Dr. F o r t u n a s u b m i t t e d a n u p d a t e d PAA F o r m ,

which provides a grid to indicate whether U[t]hroughout an 8-hour workday, the patient can tolerate, with positional changes and meal breaks, the following activities for the specified duration." 482. AR

Dr. Fortuna concluded t h a t Figueiredo was able to perform simple grasp, and firm grasp SUF 2 0 , AR 4 8 2 . ucontinuously" According to

fine manipulation,

(defined as 67-100% - 5.5+ hours) .

Dr. Fortuna, Figueiredo was also able to s i t Ufrequently" (defined as 34-66% - 2.5-5.5 hours); stand, walk, and reach a t desk l e v e l or below the waist uoccasionally" lift or carry 10 lbs. (defined as 1-33% o r <2.5 hours); and lift or c a r r y 20 lbs.

frequently;

occasionally.

AR 4 8 2 .

Dr. Nunes' assessment of Figueiredo's physical a b i l i t i e s was
4

The information provided by Dr. Fortuna on t h i s form i s somewhat ambiguous. A l t h o u g h h e c h e c k e d UYes" f o r t h e q u e s t i o n UCould your p a t i e n t r e t u r n t o work a t t h i s time i f accommodations were made for the l i s t e d r e s t r i c t i o n s ? , " he then proceeded to respond t o the uIf no, why not?" follow-up question. He a l s o s t a t e d t h a t i t was uunknown" when h i s p a t i e n t could r e t u r n t o work. AR 5 2 8 . 10

decidedly l o w e r .

According t o h i s August 22

1

2 0 0 5 PAA F o r m

I

with

the exception of frequently performing simple or firm grasp with the l e f t hand
I

Figueiredo could only occasionally s t.and , AR 4 8 9 . option of

wa L k , With "Not

reach or perform any of the other listed tasks. respect to "Sitting /" Dr. Nunes checked the

applicable to diagnosis (es) ."

AR 4 8 9 .

He a l s o n o t e d t h a t h e c o u l d

not determine whether Figueiredo was capable of fine manipulation with her l e f t hand. Id. A f u r t h e r MRI p e r f o r m e d o n N o v e m b e r 9 1 2005 revealed "[n]o

evidence of frank disk herniation /" but resulted in an impression of " [l]umbar discogenic change with disc bulges a t L4-5 and L3-4 lateralizing to the right side. Mild central stenosis and mild

right greater than left neural foraminal narrowing as described." AR 2 6 2 . Figueiredo was again evaluated for physical therapy
I

on who

February 14 1 2006 by physical t h e r a p i s t Stevan Simon ("Simon")
l

detailed in his assessment the limitations on Figueiredo s range of motion and associated reports of pain. AR 3 9 5 .

s i m o n ' s PT

evaluation s t a t e s that Figueiredo suffers from "chronic low back p a i n w i t h s c i a t i c p a i n i n t h e l o w e r e x t r e m i t y . " AR 3 9 5 . describes Figueiredo's limitations in movement and notes Simon that

" [m] u s c l e t e s t i n g w a s n o t d o n e d u e t o s e v e r e g u a r d i n g a n d p a i n reported." AR 3 9 5 . Simon concludes that Figueiredo would benefit

from short term therapy t o a l l e v i a t e her sYmptoms and improve her

11

overall m o b i l i t y , given the

but that her "[p]rognosis is guarded at best, of the problem." AR 395. Figueiredo

chronicity

participated i n physical therapy with Simon for about four weeks during which her mobility showed some improvement. However,

Figueiredo reported throughout the month t h a t she was experiencing continuing pain. AR 3 9 6 - 3 9 8 .

B a s e d o n t h e i n f o r m a t i o n p r o v i d e d o n t h e PAA f o r m s a n d o t h e r s u b m i t t e d d o c u m e n t a t i o n , LINA a d v i s e d F i g u e i r e d o b y l e t t e r d a t e d January 17, December 23, 2 0 0 6 t h a t h e r LTD b e n e f i t s w e r e d i s c o n t i n u e d a s o f 2005. SUF 21, AR 4 7 3 . The letter states that

Figueiredo has the "functional capacity" to work in her occupation and that the evidence does not support her inability to perform her occupation. AR 4 7 5 . LINA a l s o a d v i s e d F i g u e i r e d o t h a t s h e c o u l d

a p p e a l t h e t e r m i n a t i o n o f h e r LTD b e n e f i t s a n d t h a t LINA " w o u l d b e happy to consider any medical evidence which supports your total disabili ty, " including medical records for the period between

January 2005 and January 2006.

SUF 2 2 , AR 4 7 5 .

F i g u e i r e d o n o t i f i e d LINA t h r o u g h h e r a t t o r n e y b y l e t t e r d a t e d April 11, 2006 that she wished to appeal LINA's decision and

provided a l l medical reports she had received from Drs. Fortuna and N u n e s . SUF 2 3 , AR 3 6 4 . LINA a g a i n r e v i e w e d F i g u e i r e d o ' s f i l e a n d ,

after again determining that the information did not support a r e o p e n i n g o f t h e c l a i m , f o r w a r d e d t h e f i l e t o a LINA a p p e a l s u n i t . SUF 2 4 , AR 3 6 3 . S h o r t l y t h e r e a f t e r , o n May 2 4 , 2 0 0 6 , D r . F o r t u n a

12

performed

an

arthroscopic

partial

lateral

meniscectomy

and

arthrotomy on Figueiredo's l e f t knee in order to excise a meniscal cyst. SUF 2 5 , AR 2 5 6 . I n connection with F i g u e i r e d o ' s appeal t o LINA, F i g u e i r e d o ' s medical information was reviewed by an independent physician, Dr . Maria Hatam ("Dr . Hatam"). SUF 2 6 , AR 3 3 7 . Dr. Hatam's June 8,

2 0 0 6 r e p o r t s t a t e s t h a t F i g u e i r e d o ' s C s p i n e MRI f r o m N o v e m b e r 2 0 0 5 showed minimal r i g h t lower lumbar changes, treatment was recommended. It also notes but that no invasive t h a t Figueiredo was

diagnosed with trochanteric bursitis [painful inflammation in the hip area] and a l e f t knee meniscal cyst and possible meniscal tear, b u t t h a t s u r g e r y w a s n o t d o n e u n t i l May 2 0 0 6 . AR 2 5 , AR 3 3 7 . Dr.

Hatam concluded t h a t " [ t ] h e medical information provided supports [restrictions and limitations] for sedentary level impairment but not light level due to [left] knee meniscal changes." AR 3 3 7 .

N e x t , LINA r e q u e s t e d a T r a n s f e r a b l e S k i l l s A n a l y s i s ( " T S A " ) t o d e t e r m i n e " w h a t o c c u p a t i o n s Ms. F i g u e i r e d o i s q u a l i f i e d a n d a b l e to perform." AR 3 3 1 , SUF 2 7 . A c c o r d i n g t o t h e TSA, Figueiredo

s u f f e r e d f r o m " B a c k a n d N e c k p a i n , DDD [ d e g e n e r a t i v e d i s k d i s e a s e ] , DJD [ d e g e n e r a t i v e j o i n t d i s e a s e ] , " a n d w a s " [ a ] b l e t o p e r f o r m a t the Sedentary physical demand l e v e l . " identified limitations and her AR 3 3 1 . Based on those skills and wage

transferable

requirement, i t was concluded t h a t Figueiredo could perform the job of dowel inspector, nut sorter, tablet t e s t e r , or table worker. Id .

13

All f o u r o f t h o s e o c c u p a t i o n s a r e d e s c r i b e d a s

"sedentary" and

require a worker t o "[p]erform r e p e t i t i v e o r s h o r t - c y c l e work, make judgments and decisions, attain precise set limits, tolerance and standards, compare data, take instructions and handle things." 331. AR

I t i s unstated to what extent reaching, grasping, l i f t i n g ,

and/or manipulation is required for either of those occupations. LINA's records from that time period r e f l e c t that "ov [office visit] notes indicate [claimant] continues to have back pain

continueing [sic] down r i g h t leg down t o foot" and t h a t Figueiredo u n d e r w e n t s u r g e r y o n May 27 and anterior meniscal [sic], 2006 for l a t e r a l meniscal t e a r AR 3 8 . Based on Dr. Hatam's

cyst.

determination t h a t Figueiredo was precluded from functioning i n a light capacity, but not in a sedentary capacity, and the four

p o s s i b l e o c c u p a t i o n s i d e n t i f i e d b y t h e TSA, LINA a f f i r m e d t h e p r i o r denial of Figueiredo's claim. AR 3 8 .

LINA i n f o r m e d F i g u e i r e d o b y l e t t e r d a t e d J u n e 2 0 , 2 0 0 6 t h a t , a f t e r careful review, the denial of her claim was affirmed. 2 9 , AR 1 5 8 - 6 0 . The l e t t e r also noted t h a t , SUF

although Figueiredo

u n d e r w e n t k n e e s u r g e r y i n May 2 0 0 6 , " t h i s s u r g e r y t o o k p l a c e a l m o s t five months a f t e r her Disability benefits ended and therefore does not provide 23, evidence 2005." of continuous Disability going back to

December

Because

Figueiredo's

disability coverage

t e r m i n a t e d w h e n h e r d i s a b i l i t y b e n e f i t s e n d e d , " a s o f May 2 0 0 6 , Ms. Figueiredo was no longer covered under [the Plan]." AR 1 5 9 .

14

On J u l y 1 8 , 2 0 0 6 , F i g u e i r e d o a g a i n a p p e a l e d t h e d e c i s i o n a n d a d v i s e d LINA t h a t s h e w o u l d p r o v i d e a d d i t i o n a l m e d i c a l i n f o r m a t i o n s u p p o r t i n g h e r c l a i m " i n t h e n e a r f u t u r e . " SUF 3 0 , 3 1 , AR 3 0 1 - 3 0 3 . F i g u e i r e d o t h e n t r a v e l e d t o P o r t u g a l f o r t w o m o n t h s , SUF 3 2 , AR 2 5 8 , a n d LINA r e q u e s t e d a d d i t i o n a l m e d i c a l i n f o r m a t i o n . 300. Figueiredo submitted a February 23, SUF 3 3 , AR

2007 l e t t e r from Dr.

Fortuna stating that she had been "continuously disabled from any occupation specifically from 12/23/05 but has been t o t a l l y disabled a c t u a l l y much before that." AR 255. Although Figueiredo's

February 2007 request f o r voluntary appeal was apparently made outside the s t a t e d appeal window, LINA a c c e p t e d t h e a p p e a l a n d SUF 3 4 , AR 1 5 6 - 5 7 . decision to terminate

forwarded the f i l e t o LINA's Appeals Team. On A p r i l 5, 2007, LINA u p h e l d i t s

F i g u e i r e d o ' s LTD b e n e f i t s . LINA's receipt of a

SUF 3 6 , AR 1 5 3 - 5 5 . from Dr. Fortuna

The denial notes indicating that

letter

Figueiredo had been continuously disabled since before December 23, 2005. N e v e r t h e l e s s , LINA c o n c l u d e d t h a t " [ t ] h e m e d i c a l i n f o r m a t i o n not provide evidence of functional def ici ts by

reviewed does

clinically measurable testing such as validated range of motion or strength measurement which supports r e s t r i c t i o n s from December 24, 2005 forward ." AR 1 5 4 . LINA a c k n o w l e d g e d t h a t F i g u e i r e d o " w o u l d

not have been able to perform her occupation when she underwent knee surgery in May of 2006," but maintained that "the

documentation on f i l e

does not provide evidence of

continuous

15

functional d e f i c i t s t h a t w o u l d h a v e p r e v e n t e d h e r f r o m p e r f o r m i n g any occupation from December 23, 2005 to the time of surgery." 37,
AR

SUF to

154.

LINA's

records

acknowledged

that,

according

F i g u e i r e d o ' s PE [ p h y s i c a l e x a m i n a t i o n ] p r o v i d e r , s h e s u f f e r e d f r o m uweakness of l e f t hand and cant [sic] hold heavy objects and severe impingment [sic] on rt."s AR 1 8 , AR 1 9 . Dr. Nunes's assessment

from January 30, 2006, on which t h i s notation in LINA's records i s based, also makes reference to severe pain of the cervical spine and both shoulders. lack of measured rom AR 1 6 9 . LINA n o t e d f u r t h e r t h a t U t h e r e i s and strength noted to

[range of motion]

support [claimant's] complaint and any weakness found by provider." AR 1 8 , AR 1 9 . In the month following LINA's denial, Figueiredo submitted

identical affidavits from Dr. Fortuna and Dr. Nunes, which stated that, u b a s e d o n a r e a s o n a b l e d e g r e e o f m e d i c a l c e r t a i n t y [] has been continuously disabled from any the

patient

occupation

specifically from 12/23/05 but has been t o t a l l y disabled actually much before t h a t . " SUF 3 8 , AR 1 7 4 , 2 5 4 . I n a l e t t e r d a t e d May 2 ,

2 0 0 7 , D r . N u n e s c o n c l u d e d t h a t UMrs. F i g u e i r e d o i s t o t a l l y d i s a b l e d and incapable of any gainful employment due t o a degenerated C6-7 disc." AR 1 7 5 . In his l e t t e r , Dr. Nunes also provided information AR

regarding the three l a s t v i s i t s Figueiredo made t o h i s o f f i c e .

5

According to her Disabilities Questionnaire, r i g h t - h a n d e d . AR 6 0 3 . 16

Figueiredo is

175, AR 1 8 1 .

According to Dr. Nunes, an April 24, 2006 Uphysical

examination revealed cervical spine pain upon palpitation and a l l motion." On N o v e m b e r 2 7 , 2 0 0 6 , F i g u e i r e d o c o n s u l t e d h i m a g a i n w i t h

complaints of uupper and lower back pain, b i l a t e r a l shoulder arm and hand pain." AR 1 7 5 , AR 1 8 1 . file and issued a final

LINA a g a i n r e v i e w e d F i g u e i r e d o ' s denial by l e t t e r dated June 6, 2007. grounds for its denial, LINA

SUF 3 9 , AR 1 4 9 . As o n e o f t h e that U[t]he medical

expressed

documentation reviewed does not provide evidence of functional deficits by clinically measurable testing." 2007 letter, as all of the denial AR 1 4 9 . The June 6, it, advised

letters before

Figueiredo that she had U right to bring legal action regarding a h e r c l a i m u n d e r t h e ERISA s e c t i o n 5 0 2 ( a ) . " 18, 2008, AR 1 4 9 . On D e c e m b e r

F i g u e i r e d o f i l e d h e r c l a i m f o r LTD b e n e f i t s i n R h o d e Court, which LINA removed based on ERISA

Island

Superior

p r e e m p t i o n . SUF 4 0 , 4 1 . On D e c e m b e r 2 9 , 2 0 0 9 , t h i s C o u r t c o n d u c t e d a h e a r i n g o n t h e parties' hearing, cross motions for summary judgment. Following the

the Court directed the p a r t i e s to f i l e short memoranda

addressing the question of which standard of review the Court should employ in considering the p a r t i e s ' motions. supplemental memorandum on January 19, 2010 LINA f i l e d a Figueiredo

and

responded with a memorandum i n opposition on January 26, 2010. After considering the p a r t i e s ' memoranda, the Court determined

17

that t h e P l a n ' s p r o v i s i o n t h a t " s a t i s f a c t o r y p r o o f o f d i s a b i l i t y must be provided t o t h e Insurance Company" was i n s u f f i c i e n t t o convey discretionary authority on LINA because it failed to

i n d i c a t e t o whom s u c h p r o o f m u s t b e s a t i s f a c t o r y .

Accordingly, the

Court issued a Memorandum and Order on March 1, 2010, advising the parties that i t would conduct a de novo review of LINA's decision to terminate Figueiredo's benefits. North America, -F.Supp.2d - , Figueiredo v. Life Ins. Co. of (D.R.I. 2010). The

2 0 1 0 WL 7 3 7 6 5 2

Court also instructed the p a r t i e s to f i l e additional memoranda to address "( 1) whether, when viewed under the de novo standard deemed applicable in t h i s matter, LINA's termination of Figueiredo's long term d i s a b i l i t y b e n e f i t s was i n e r r o r ; and (2) i f such termination was in error, what appropriate remedy may be ordered by t h i s

Court."
II.

Id. at *6.

Both p a r t i e s f i l e d memoranda as instructed. 6

Standard of Review

As

previously

determined

by

this

Court,

the

appropriate

standard of review in this case i s de novo. the Court independently weighs the facts

In a de novo review, and opinions in the

administrative record to determine whether the claimant has met his or her burden of showing that he or she i s disabled as defined by the plan at issue. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d

6

T h e C o u r t n o t e s t h a t LINA p r i m a r i l y r e n e w e d i t s a r g u m e n t f o r application of deferential review and took no position on what remedy t h i s Court may o r d e r , should the t e r m i n a t i o n of b e n e f i t s be deemed erroneous.
18

510, 5 1 8 ( 1 s t C i r . 2 0 0 5 ) .

uWhile the court does not ignore facts

i n t h e r e c o r d , s e e R e c u p e r o v . New E n g . T e l . & T e l . C o . , 1 1 8 F . 3 d 820, 830 (1st Cir. 1997), the court grants no deference to

administrators' opinions or conclusions based on these facts." Id. In other words, the Court stands uin the shoes of the administrator to 'determine whether the administrative decision was 239

correct.'" Richards v.

Hewlett-Packard Corp.,

592 F.3d 232,

( 1 s t C i r . 2 0 1 0 ) { q u o t i n g Few v . L i b e r t y M u t u a l I n s . C o . , N o . 0 6 - C V 0 0 4 2 7 - J L , 2 0 0 9 WL 7 5 6 2 1 1 ( D . N . H . M a r c h 1 9 , 2 0 0 9 ) ) . In evaluating a motion for summary judgment regarding the denial of benefits under ERISA, Uthe non-moving party is not

entitled to the usual inferences in its favor." Revere Life Ins. Co., 404 F.3d a t 517.

Orndorf v. Paul

I n s t e a d , Usummary judgment Id. The F i r s t

is simply a vehicle for deciding the issue."

Circuit has established that the Uguiding principle in conducting d e novo r e v i e w i s t h a t i t i s t h e p l a i n t i f f who b e a r s t h e b u r d e n o f proving he [or she] i s disabled." Id. a t 518, 519 {citing Terry v. B a y e r , 1 4 5 F . 3 d 2 8 , 34 ( 1 s t C i r . 1 9 9 8 ) ( b u r d e n r e s t s o n t h e i n s u r e d t o make a showing s u f f i c i e n t t o e s t a b l i s h a v i o l a t i o n of ERISA)). In this case, pursuant to the terms of the Plan, Figueiredo's

burden i s to prove that she i s Uunable to perform a l l the material d u t i e s of any occupation f o r which he o r she may reasonably become qualified based on education, training or experience."

III.

Discussion

19

LINA a s s e r t s i n i t s m e m o r a n d u m t h a t " t h e p l a i n t i f f ' s b u r d e n was to provide s a t i s f a c t o r y proof" t h a t she was unable to perform any occupation "because of the injury to her l e f t knee." LINA's S u p p . Mem. 8 . That statement would suggest that Figueiredo's claim

i s l i m i t e d t o o n l y t h e i n j u r y w h i c h i n i t i a l l y q u a l i f i e d h e r f o r LTD benefits. The Plan, however, imposes no such s p e c i f i c requirement. while she was deemed disabled or was diagnosed with another

If Figueiredo demonstrates that, under the Plan, she incurred

disabling condition that precluded her from performing "all the material duties of any occupation," she i s entitled to continuing benefits. T h e r e c o r d s u b m i t t e d t o LINA r e g a r d i n g F i g u e i r e d o ' s m e d i c a l problems is voluminous and consistent. It reveals that, even

before Figueiredo underwent surgery for a meniscal tear in her l e f t knee in October 2001, she sought treatment for pain in her right shoulder and upper back and reported that increased her pain. Figueiredo suffered l i f t i n g and pushing

Within six months of her i n i t i a l surgery, another meniscal tear which resulted in

continuing leg pain.

Figueiredo decided not to undergo additional

surgery at that time after receiving a second opinion advising her that such surgery might worsen her condition. she Based on to the have

documentation

Figueiredo

submitted,

continued

difficulties with her l e f t knee and leg until she finally had a s e c o n d s u r g e r y i n May 2 0 0 6 t o a d d r e s s a m e n i s c a l c y s t a n d t h e

20

meniscal t e a r i n h e r l e f t k n e e . As F i g u e i r e d o c o n t i n u e d t o c o m p l a i n o f p a i n i n h e r s h o u l d e r s and back, she was eventually diagnosed with cervical radiculopathy involving several spinal discs. The record is replete with

evidence that Figueiredo sought to alleviate the pain and improve her condition, but that she consistently reported experiencing

severe pain and continuing difficulties with reaching, grasping, and lifting. Over the course of her treatment, Figueiredo

c o n s u l t e d D r . F o r t u n a o n a b o u t 30 o c c a s i o n s , a n d D r . N u n e s o n a t least a dozen occasions. Although she also presented with a number the increasing neck and arm pain, and resulting numbness

of unrelated health issues, together with difficulties predominate.

i n movement

In the course of diagnosis and treatment, Figueiredo a l l of which confirmed a

submitted t o numerous x-rays and MRIs, finding of degenerative changes.

She also consulted a neurologist,

but was unable to endure a complete electrodiagnostic examination because of the pain. Figueiredo was prescribed significant pain medication In addition, of physical after

including Tylenol #3, Vicodin, Celebrex, and Vioxx. Figueiredo therapy, participated in at least three series

i n i t i a l l y related to her knee,

and subsequently,

being diagnosed with herniated C6-C7.

T h e PT r e p o r t f r o m S p r i n g

2003 i s consistent with o f f i c e notes from Figueiredo's physicians, reflecting Figueiredo's continuing d i f f i c u l t i e s with using her arm, reduced grip strength, as well as severe shoulder and neck pain and
21

impaired r a n g e o f m o t i o n . Figueiredo's claims regarding the pain in her neck and

s h o u l d e r s a r e w e l l s u p p o r t e d b y m e d i c a l i m a g i n g . A n MRI t a k e n i n November 2002 shows a supports that d e g e n e r a t e d C6 a January C7 d i s c ; MRI a later x-ray reveals

finding;

2003

report

degenerative changes to Figueiredo's cervical spine; a November, 2 0 0 5 MRI c o n f i r m s c e n t r a l s t e n o s i s a n d f o r a m i n a l n a r r o w i n g . While

the degeneration of Figueiredo's cervical spine is described as Umild" or umild t o moderate," she c o n s i s t e n t l y reported severe arm and neck pain as a result. In addition, Figueiredo continued to

suffer from leg pain related to the l a t e r a l meniscal tear in her l e f t k n e e , f o r w h i c h s h e e v e n t u a l l y u n d e r w e n t s u r g e r y i n May 2 0 0 6 . Although LINA's records reflect that it was aware of

Figueiredo's arm and neck pain and her related weakness of grasping or holding of objects, the focus of LINA's assessment appears to have been on Figueiredo's knee injury, for which she was i n i t i a l l y found disabled. LINA's identification of four possible jobs

Figueiredo could perform appears primarily based on the fact that those occupations were inspector, specific nut sorter, or usedentary." tablet tester, description The descriptions of dowel or table worker lack any of the actual movements

quantitative

required for the work, that Figueiredo had

n o r d o e s t h e TSA t a k e i n t o c o n s i d e r a t i o n difficulties grasping and suffered from

weakness in her arm(s) . LINA's denial of Figueiredo's b e n e f i t s acknowledges t h a t , when 22

Figueiredo u n d e r w e n t k n e e s u r g e r y i n May o f 2 0 0 6 , have been able to perform her occupation."

"she would not

LINA m a i n t a i n e d ,

however, that Figueiredo failed to "provide evidence of continuous functional deficits that would have prevented her from performing any occupation from December 23, 2005 t o the time of surgery."

LINA a l s o a s s e r t e d t h a t t h e May 2 0 0 6 s u r g e r y " d o e s n o t p r o v i d e evidence of continuous Disability going back to December 23, 2005," when she was deemed to be no longer disabled. A review of the record reveals that Figueiredo suffered a meniscal tear in her l e f t knee shortly a f t e r her f i r s t surgery and that she complained of pain in her l e f t leg thereafter. a l l MRIs, including one performed in November 2005, Moreover, support a

finding of degenerative change in Figueiredo's cervical spine. Dr. Nunes, who e x a m i n e d F i g u e i r e d o i n J a n u a r y 2 0 0 6 , notes that

F i g u e i r e d o s u f f e r e d f r o m s e v e r e n e c k a n d a r m p a i n . F e b r u a r y 2 0 0 6 PT notes from Figueiredo's physical therapist detail Figueiredo's

limitations on her range of motion and document Figueiredo's report of pain during the therapy. A physical examination by Dr. Nunes in April 2006 also reveals "cervical spine pain upon p a l p i t a t i o n and all motion." In sum, the record relative to the time period

b e t w e e n D e c e m b e r 2 0 0 5 a n d May 2 0 0 6 i n d i c a t e s t h a t F i g u e i r e d o ' s d i s a b i l i t y continued beyond December 2005 because her condition, both with respect to her l e f t knee and the degeneration of her cervical spine, had not improved over time. As LINA p o i n t s o u t i n i t s m e m o r a n d u m , t h e F i r s t C i r c u i t h a s 23

consistently h e l d t h a t " b e n e f i t s e l i g i b i l i t y d e t e r m i n a t i o n s b y t h e Social Security Administration ["SSA"] are not binding on

disability insurers."

Pari-Fasano v. ITT Hartford Life and Acc.
i

Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000) Med. Card System, Inc., 486 F.3d 693,

Morales-Alejandro v. (1st Cir. 2007).

699

Although an award of Social Security b e n e f i t s may be relevant i n reviewing unless the eligibility determination of a private insurer,

the insurer's plan sets forth criteria identical to those

e m p l o y e d b y t h e SSA, " i t s h o u l d n o t b e g i v e n c o n t r o l l i n g w e i g h t . " Pari-Fasano, 486 F.3d a t 420. In the case before the Court, the SSA 2001. determined that

Figueiredo became disabled on September 24,

LINA a p p r o v e d

F i g u e i r e d o f o r LTD b e n e f i t s e f f e c t i v e M a r c h 2 4 , 2 0 0 2 , a n d c o n t i n u e d to approve her for benefits u n t i l December 23, 2005. After that

d a t e , LINA d e t e r m i n e d t h a t F i g u e i r e d o w a s n o l o n g e r d i s a b l e d b e c a u s e she had the "functional capacity" to perform a sedentary occupation and because i t deemed the evidence submitted by her insufficient to demonstrate disability. Although Dr. Nunes reported t h a t Figueiredo

w a s f o u n d t o b e " t o t a l l y d i s a b l e d " b y S S D I , s e e AR 4 8 8 , t h e r e i s n o e v i d e n c e i n t h e r e c o r d t h a t t h e SSA e v e r r e v i e w e d a n d / o r c o n f i r m e d Figueiredo's disability status. However, even without consideration of the disability

d e t e r m i n a t i o n b y t h e SSA, administrative disability. record

this Court is of the opinion that the supports Figueiredo's claim for

amply

T h e o v e r a l l p i c t u r e i s t h a t o f a p a t i e n t who c o n s u l t e d 24

several p h y s i c i a n s a n d s p e c i a l i s t s o n n u m e r o u s o c c a s i o n s a n d who underwent both diagnostic procedures and repeated attempts at

physical therapy to find r e l i e f from persistent and severe pain resul ting from degenerative changes in her cervical spine and

recurring knee injuries.
IV. Remedy
~considerable d i s c r e t i o n "

The Court has

in formulating a remedy

i f i t determines t h a t the termination of d i s a b i l i t y b e n e f i t was i n error. Buffonge v. Prudential Ins. Co. of America, 426 F.3d 20, 31
(~[T]he

(1st Cir. 2005)

court must have 'considerable discretion' to
i

craft a remedy a f t e r finding a mistake in the denial of benefits")

C o o k v . L i b e r t y L i f e A s s u r . C o . o f B o s t o n , 3 2 0 F . 3 d 1 1 , 24 ( 1 s t C i r . 2003) (court has
~discretion

to formulate a necessary remedy when i t

determines that the plan has acted inappropriately") . Generally, a district court will
~either

remand the case to

the administrator for a renewed evaluation of the claimant's case, or i t can award a retroactive reinstatement of benefits." Liberty Life Assur. Co. of Boston, 320 F.3d a t 24. Cook v.

If i t appears

t h a t the i n s u r e d ' s d i s a b i l i t y ended a t some time i n the past, remand i s appropriate because an award of retroactive benefits would result in an economic windfall to the insured. However, where the insured

would have continued to receive the b e n e f i t s , or where there was no evidence in the record to support a termination or denial of

benefits, retroactive reinstatement is appropriate. a t 24. 25

Cook, 320 F.3d

This

Court,

after

conducting

a

de

novo

review

of

the

administrative record,

has determined t h a t Figueiredo was denied Therefore, i t

benefits to which she was e n t i t l e d under the Plan.

i s appropriate to award those benefits to her retroactively and, unless she f a i l s to demonstrate her disability in the future, on a continuing basis. Given that Figueiredo suffers from degenerative i t is not likely that such an windfall." Moreover, as

changes that cause her disability, award will result in an

"economic

p r e v i o u s l y s t a t e d , m o r e t h a n 90% o f F i g u e i r e d o ' s d i s a b i l i t y p a y m e n t s a r e p a i d b y t h e S S A , w h e r e a s LINA o n l y c o n t r i b u t e s a $ 1 0 0 m o n t h l y payment, the minimum amount of coverage under the Plan. In addition, after Figueiredo's disability benefits have been restored to her, she once again bears the obligation to demonstrate that she is disabled under the terms of the Plan. If she is unable

t o p r o v e t h a t s h e c a n n o t p e r f o r m " a n y o c c u p a t i o n , " LINA m a y p u r s u e termination of Figueiredo's disability status at that time.
Conclusion

For

the

reasons

stated herein,

LINA's

motion

for

summary

j u d g m e n t i s DENIED i a n d F i g u e i r e d o ' s m o t i o n f o r s u m m a r y j u d g m e n t i s GRANTED. Figueiredo i s awarded disability benefits under the Plan for the p e r i o d from December 23, 2005 t o the d a t e o f t h i s Memorandum and Order and continuing until such time as i t i s determined that she

26

is n o l o n g e r e l i g i b l e f o r s u c h b e n e f i t s .

SO ORDERED.

M a r y M. L i s i Chief United States District Judge June

r

1

2010

27