Barnes v. The Hartford et al

Filing 30

ORDER GRANTING DEFENDANT'S MOTION 21 FOR SUMMARY JUDGMENT and case dismissed from the docket. Signed by Chief Judge John Preston Bailey on 11/10/2011. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Martinsburg

DANIEL BARNES,
Plaintiff,
v.

Civil Action No. 3:10-CV-72
Judge Bailey

THE HARTFORD LIFE AND
ACCIDENT INSURANCE COMPANY,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before this Court is Defendant Hartford Life and Accident Insurance
Company’s Motion for Summary Judgment (Doc. 21). The plaintiff filed his response (Doc.
23) on August 17, 2011, and the movant filed its reply (Doc. 24) on August 31, 2011.
Defendant Hartford Life and Accident Insurance Company (“Hartford”) filed a motion to
strike plaintiff’s exhibits (Doc. 25) on August 31, 2011, which motion was granted on
September 7, 2011 (Doc. 27). On September 29, 2011, the plaintiff filed a motion to
reconsider this Court’s September 7, 2011, Order (Doc. 28), which was denied by Order
entered October 18, 2011 (Doc. 29). This motion for summary judgment is now ripe for
decision.
I. Factual Background
Plaintiff was employed full-time by Fireline Corporation (“Fireline”) as a design
engineer from April 12, 1999 to February 2, 2001. As a former employee of Fireline
Corporation, the plaintiff was a participant in the Group Benefit Plan (“Plan”) for its
1

employees, which provided Long-Term Disability (“LTD”) benefits to eligible and qualified
employees pursuant to the terms of a policy of insurance issued by Hartford (“Policy”) (Doc.
21-1). Under the Policy, a person who is disabled from his or her own occupation may
receive benefits for 24 months. Benefits may only continue if the person establishes that
he or she is disabled from any occupation (Id., p. 008).
The Policy further provides that, “[w]hen making a benefit determination under the
policy, [Hartford has] discretionary authority to determine Your eligibility for benefits and to
interpret the terms and provisions of the policy.” (Id., p. 006).
Plaintiff ceased work on February 2, 2001 and, thereafter, submitted an application
for LTD benefits to Hartford with an accompanying Attending Physician’s Statement of
Disability (“APS”) signed by Richard A. Berg, plaintiff’s treating infectious disease specialist.
Dr. Berg wrote that plaintiff suffered from hepatitis and diabetic complications, with side
effects of jaundice, weakness, depression and anxiety. (Doc. 20, pp. 1643-1645).
Hartford approved his claim effective May 3, 2001. (Id. pp. 1610-1611). Over
approximately the next two (2) years plaintiff generally worked part-time and underwent
treatment for a variety of complaints. (See e.g., Doc. 20, pp. 1373-1374, 0341, 1480,
1623-1626, 1614-1618, 1906SIU, 1509-1510, and 1515). In August, 2003, the plaintiff
ceased work altogether.
Plaintiff also began some treatment for psychological complications. Due to his
excessive use of medications for pain and his unsupported but increasing fears that he
would experience worsening symptoms from HIV (with which he had been diagnosed in
1986) (Id., p. 1452) and die, plaintiff underwent a Psychiatric Evaluation with Stanley R.
Platman, M.D., on November 26, 2002. (Id., pp. 1450-1452). Dr. Platman believed
2

plaintiff’s psychiatric diagnoses included major depression and opiate dependence (plaintiff
was addicted to Oxycontin). (Id., p. 1451). Dr. Platman recommended treating plaintiff’s
depression with medications and deferred efforts to treat the Oxycontin addiction. (Id., p.
1452).
As of May 3, 2003, after receiving LTD benefits for twenty-four (24) months under
the “Own Occupation” standard, the Policy required that plaintiff be unable to perform the
material and substantial duties of any occupation in order to continue receiving benefits
beyond that date. (Doc. 21-1, p. 8). Hartford determined that he had submitted evidence
sufficient to satisfy this requirement. Additionally, Plaintiff was awarded Social Security
Disability (“SSD”) benefits by the Social Security Administration (“SSA”) effective January,
2004. (Doc. 20, p. 1405).
The plaintiff treated periodically with Drs. Berg and DeBond between 2003 and 2005.
Plaintiff’s treatment with these physicians apparently ceased altogether between July 2005
and the Summer of 2006. (Id., p. 1305). On July 10, 2006, plaintiff saw Mark Galbraith,
M.D., infectious disease specialist, for treatment of his HIV and associated conditions. (Id.,
pp. 1118-1119).

Plaintiff’s records began to reveal substantial improvement in his

condition. His treatments with Dr. Galbraith revealed that his HIV, peripheral neuropathy
with tremor, osteoporosis and diabetes all were controlled, but he was experiencing some
gastrointestinal problems, chronic pain and depression. (Id., pp. 1118-1119, 1116).
Although plaintiff was diagnosed with Irritable Bowel Syndrome (“IBS”), based on
his continual complaints of abdominal pain, extensive testing showed no abdominal
abnormalities. (Id., pp. 1114, 1109, 1128, 1102, 1095-1097, 1077-1078). Similarly, plaintiff
also complained of fatigue in February, 2007, but his blood work was unremarkable. (Id.,
3

p. 1114). In October, 2007, his HIV remained under control. (Id., p. 1880SIU).
The plaintiff’s claim was referred to the Special Investigations Unit of Hartford on
August 24, 2007. Surveillance of the plaintiff was conducted on four days in September
and October, 2007. On one day, the plaintiff did not leave his home. On the other days,
surveillance revealed the plaintiff away from his house for up to two (2) hours and fifteen
(15) minutes at a time, during which time he was observed driving, jogging across the
street, smoking without tremors and carrying two (2) half full bags of groceries, among
other activities. (Id., pp. 1855-1856SIU). At his home, plaintiff was seen watering/spraying
his lawn on two separate occasions, once for fifteen (15) minutes, while he carried a
chemical pack on his back and squeezed a sprayer multiple times, also without tremors.
(Id., pp. 1856SIU, 1860-1861SIU). During all of the activities, including bending and
squatting, plaintiff moved in an apparent normal and unrestricted manner without braces
or aids, and with an upright posture with no visible tremors or deficits in his hands. (Id., pp.
1900-1901SIU, 1853, 1858).
Plaintiff was interviewed by a Hartford representative on November 28, 2007, and
shown the surveillance footage. He confirmed that the level of activity revealed by the
surveillance accurately represented his normal level of functionality. (Id., p. 1913SIU). The
interviewer reported that during the three (3) hour interview, plaintiff moved throughout his
home without any observable restrictions or pain indicators, and he appeared to have full
use of his hands and fingers. (Id., pp. 1904-1905SIU). Plaintiff described his disabling
conditions as HIV, nausea, fatigue, projectile vomiting, bowel incontinence almost daily,
gastroparesis, severe abdominal pain, and neuropathy of his upper and lower extremities.
Plaintiff further reported that HIV reduced his endurance which impaired his ability to
4

function, and a femur fracture he had experienced in 2001 caused residual chronic daily
pain requiring occasional use of a cane. (Id., p. 1906SIU). Plaintiff advised that his only
treating physician for his physical condition at that time was Dr. Galbraith, an infectious
disease specialist. (Id., pp. 1906-1907SIU).
On September 27, 2007, plaintiff began treating with Heidi Lucas, a psychotherapist,
following his admission to a rehabilitation facility from September 18 through 25, 2007 for
opiate and sedative-hypnotic dependence. (Id., pp. 898, 887, 848-853). Ms. Lucas
decided to treat him in an outpatient program, focusing on grief issues, depression and
staying clean. (Id., pp. 850-853). Plaintiff continued seeing Ms. Lucas throughout the
remainder of 2007 and into 2008. (Id., pp. 786, 765-767, 777, 757, 809-815). Ms. Lucas’s
records revealed that even plaintiff recognized the substantial change for the better in his
condition. On January 15, 2008, plaintiff informed Ms. Lucas that he was considering
returning to work and that he had begun researching career options. (Id., p. 757).
Hartford wrote to plaintiff’s treating physician Dr. Galbraith, plaintiff’s infectious
disease specialist, on December 13, 2007, summarizing plaintiff’s November 2007
interview. Hartford also forwarded the surveillance footage, and asked whether Dr.
Galbraith agreed with Hartford’s conclusion that plaintiff now was capable of full-time work.
(Id., pp. 1007-1009). On December 18, Dr. Galbraith confirmed that plaintiff likely could
perform full-time sedentary level work from a physical perspective, but noted that plaintiff’s
cognitive condition may preclude him from doing so. (Id., p. 1915SIU). Dr. Galbraith raised
the prospect of plaintiff undergoing a neuropsychological test which would be required to
confirm his suspicion. (Id.). Dr. Galbraith suggested that Hartford (rather than he) would
have to perform this testing. (Id., p. 1869SIU). Hartford did not require plaintiff to undergo
5

these tests, and plaintiff never submitted any such testing in support of his claim.
In January, 2008, without the benefit of the testing he had suggested previously, Dr.
Galbraith wrote to Hartford explaining that, while he still believed plaintiff was physically
capable of performing full-time sedentary level work, he did not believe plaintiff was capable
of such from a cognitive and neuropsychiatric standpoint. (Id., pp. 1008-1009, 1877SIU).
According to Dr. Galbraith, plaintiff had chronic fatigue, lack of endurance, poor stamina
and an inability to concentrate or focus. (Id.). Dr. Galbraith again recommended a
neuropsychiatric evaluation for plaintiff, (Id., p. 1878SIU), but plaintiff never had such
testing performed.
On March 17, 2008, plaintiff advised Hartford that he was terminating treatment with
Dr. Galbraith because the latter had failed to accommodate plaintiff’s need for an
appointment. (Id., p. 857). Plaintiff also felt that Dr. Galbraith was treating him differently
since having seen the surveillance footage. (Id., p. 1917SIU). Plaintiff planned to begin
treating with Dr. Anthony Owunna, an internist. (Id., p. 857).
Accordingly, on March 18, 2008, Hartford sent the same letter and surveillance
footage to Dr. Owunna that it previously had sent to Dr. Galbraith, asking whether Dr.
Owunna believed plaintiff was capable of full-time sedentary or light work. (Id., pp.
798-800). Dr. Owunna did not respond. Instead, on June 18, 2008, plaintiff wrote to
Hartford advising that Dr. Owunna would not confirm or deny plaintiff’s disability status
based only on the surveillance footage. Moreover, plaintiff claimed Dr. Owunna was at a
disadvantage to make a medically sound decision because plaintiff’s other treating
physicians failed to forward his medical records. (Id., p. 656). Plaintiff instead requested
Hartford contact Dr. Berg, whom he had last seen in May, 2004, regarding plaintiff’s
6

functional capabilities. (Id., p. 656).
As plaintiff had requested, on June 24, 2008, Hartford forwarded the same letter and
surveillance footage to Dr. Berg that it had previously forwarded to plaintiff’s other treating
physicians and asked whether Dr. Berg agreed that plaintiff was capable of full-time
sedentary or light work. (Id., pp. 641-643). Dr. Berg responded, indicating that he had
seen plaintiff only once in the last four (4) years and was unable to make any assessment
as to his work ability. (Id., p. 634).
Thereafter, Hartford requested an Independent Medical Review (“IMR”) from John
L. Brusch, M.D., Board Certified in Internal Medicine, Geriatric Medicine and Infectious
Disease, and Patrick L. Lillard, M.D., Board Certified in Psychiatry & Neurology/Psychiatry.
Each doctor was asked to opine on plaintiff’s functional capabilities and work ability from
the standpoint of their specialties. (Id., pp. 697-698). Drs. Brusch and Lillard were asked
to review all the plaintiff’s medical records submitted to Hartford.
In his report, Dr. Brusch noted that plaintiff had normal examinations and had no
gait disturbance, no psychiatric symptoms, no bone/joint symptoms or weakness and no
documentation of neuropathy except that it was included in the lists of his diagnoses. The
surveillance footage showed no observable abnormalities, and plaintiff showed the ability
to stand for a prolonged period, drive, use a garden sprayer in both hands, twist, turn, squat
and carry. Plaintiff had no pain indicators during his interview, he had a good range of
motion, and he could sit for forty (40) to fifty (50) minutes at a time with full use of his hands
and fingers and normal reaching abilities. (Id., p. 651).
Dr. Brusch also spoke with Dr. Owunna regarding plaintiff’s condition. Dr. Owunna
reported he had told plaintiff “directly that he could not support the disability claim of
7

[plaintiff]. Physically, the claimant has a normal examination. His HIV is well-controlled.
He had seen a copy of the surveillance footage and stated that the claimant looked
perfectly fit.” (Id., p. 650).
Dr. Brusch concluded that plaintiff was able to perform light duty work on a fulltime
basis. He believed plaintiff could stand and walk for four (4) hours each and sit for eight
(8) hours per workday with the ability to change positions. Dr. Brusch further concluded
that plaintiff easily could carry, lift and push up to ten (10) pounds frequently and up to
twenty (20) pounds occasionally. (Id., p. 651).
Dr. Lillard, who reviewed plaintiff’s condition from a psychiatric perspective, also
believed him to be capable of full-time work. Dr. Lillard noted that, since the initial visit with
Ms. Lucas on September 27, 2007, plaintiff had followed-up with her every two (2) to four
(4) weeks without indication of significant distress or crisis. Plaintiff had never manifested
psychotic features and there were no documented signs or symptoms of severe
depression. Dr. Lillard further noted that there was no documentation of impairments from
a psychological perspective that would dictate restrictions or limitations, and no
documentation of cognitive impairment. (Id., p. 646).
Dr. Lillard was unable to contact Ms. Lucas, but he spoke with plaintiff’s treating
psychiatrist, Dr. Kahn, who said plaintiff was being followed for depression and the major
problem was his anxiety, in particular anxiety about returning to work. While Dr. Kahn did
not believe plaintiff could return to work, he did not provide any specific signs or symptoms
that would impair him from work. (Id., p. 647).
Dr. Lillard also spoke with Dr. Owunna who advised that he had seen plaintiff only
three (3) times and during each of those visits plaintiff appeared very anxious and
8

depressed and complained of chronic fatigue. Dr. Owunna was uncertain if plaintiff had an
active psychological impairment that would cause restrictions or limitations. (Id., p. 647).
Based upon all of this evidence, Dr. Lillard concluded there were no impairments
from a psychiatric perspective that would support limitations or restrictions on plaintiff’s
ability to work, and no documentation of a psychiatric or cognitive disorder that would
impair, limit or restrict plaintiff. (Id., p. 647).
Thereafter, Hartford requested that Marvin S. Bryant, M.S., C.R.C., Vocational
Rehabilitation Counselor, provide an Employability Analysis Report (“EAR”) to determine
whether there were any occupations within the local economy available for plaintiff given
his functional abilities. (Id., p. 619). Mr. Bryant used the Occupational Access System
(“OASYS”), which is a computerized job matching system that cross references an
individual’s qualification profile with 12,741 occupations classified by the U.S. Department
of Labor in the 1991 Dictionary of Occupational Titles. (Id., p. 590). The EAR considered
plaintiff’s functional capabilities and restrictions as defined by Drs. Brusch and Lillard, as
well as plaintiff’s education, training and work history. (Id.). The EAR identified at least
three (3) sedentary to light level occupations available within the local geographic economy
for which plaintiff was qualified and capable of performing and that met the required wage
earnings under the Policy. (Id., p. 591).
On July 25, 2008, Hartford advised plaintiff that it had determined he no longer met
the Policy definition of disabled beyond July 23, 2008. By letter from his counsel dated
January 20, 2009, plaintiff appealed Hartford’s benefit determination. (Id., pp. 469-470).
Accordingly, Hartford began an independent investigation of plaintiff’s claim on appeal
during which it obtained reports from two (2) more Board-Certified physicians, Rosaline
9

Vasquez, M.D., Board Certified in Internal Medicine, and Melvyn Lurie, M.D., Board
Certified in Psychiatry. (Id., p. 429). Hartford also made several requests to plaintiff for any
recent treatment records from his treating physicians since its initial denial determination.
These documents were never provided, and Hartford proceeded with the appeal review
with the documents already on file. (Id., pp. 455, 451, 435).
Dr. Vasquez spoke with Dr. Berg who advised that he no longer was treating plaintiff
and had seen him only one time in the past four (4) years when plaintiff requested that he
write a letter of disability for him. (Id., p. 423). Dr. Vasquez evaluated each of plaintiff’s
claimed disabilities and discounted them one by one. She confirmed that plaintiff’s HIV and
diabetes diagnoses did not require functional restrictions. (Id., pp. 423-424). She noted
that plaintiff’s last episode of hepatitis was in 2001, and his liver function tests had been
normal since 2002. Although plaintiff complained of symptoms related to osteoporosis in
the past, the record did not show any ongoing issues with chronic pain from this condition
and the surveillance showed good mobility. She opined that the plaintiff should avoid heavy
lifting because of this condition, but other functional limitations were not warranted. (Id.,
p. 424).
Plaintiff suffered from recurrent abdominal pain with nausea and vomiting through
April, 2007, but a complete workup did not reveal any specific etiology. (Id.). Dr. Vasquez
thought the condition to be IBS and side effects from narcotics. (Id., p. 425). Plaintiff’s
abdominal issues were virtually non-existent from September, 2007 through March, 2008,
but then he had acute diarrhea thought to be colitis. Dr. Vasquez concluded that plaintiff’s
history of abdominal pain would not require functional limitations. (Id).
Dr. Vasquez further reported that plaintiff denied any fatigue in 2008 and so this also
10

would not require any functional limitations. (Id.). Finally, with regard to plaintiff’s history
of tremors, plaintiff had no tremors by September, 2007 and no mobility issues or problems
with his activities of daily living by January, 2008. Moreover, in March, 2008, he did not
have any neurologic issues, and on March 14, 2008, he was undergoing physical therapy
for neuropathy and pain, and getting healthier. Furthermore, the surveillance video showed
him moving his hands repetitively without splints or devices. (Id., pp. 425-426).
Dr. Vasquez concluded that plaintiff’s history of neuropathy would allow him to carry
out a sedentary or light level occupation. (Id., p. 426). Moreover, the records did not
identify any ongoing issues with medications that Dr. Vasquez believed would warrant
restrictions for plaintiff. Based upon all of this, Dr. Vasquez concluded that plaintiff
physically was capable of performing full-time sedentary or light level work. (Id., p. 427).
Dr. Lurie summarized plaintiff’s psychiatric medical records, (Id., pp. 405-408),
noting that, although plaintiff had been diagnosed with major depression and opioid
dependence, there was no discussion of the diagnostic criteria for the diagnosis of
depression. (Id., p. 409). In fact, it was unclear whether plaintiff still was suffering from
depression or if the condition was appropriately treated with medication. The most recent
mental status examination by Dr. Kahn in February, 2008, was quite benign and there was
no evidence plaintiff had functional limitations resulting from his depression. (Id.). Dr. Lurie
believed there was evidence plaintiff met the diagnosis of opioid dependence, but there
was no evidence it caused functional limitations. (Id.). Therefore, Dr. Lurie concluded that
there was no credible evidence for any functional/psychological limitations for plaintiff. (Id.).
Dr. Lurie also noted that there was no credible evidence for any limitations due to plaintiff’s
medication use. (Id., p. 410).
11

On June 22, 2009, after a review of plaintiff’s claim on appeal, Hartford upheld the
decision to terminate benefits as of July 24, 2008. (Id., p. 352).
This suit followed.
II. Summary Judgment Standard
Rule 56(e) of the Federal Rules of Civil Procedure provides that “an opposing party
may not rely merely on allegations or denials in its own pleading; rather, its response must–
by affidavits or as otherwise provided in this rule– set out specific facts showing a genuine
issue for trial. If the opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party.”
Rule 56 further provides that summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). Thus, the Court must conduct “the threshold
inquiry of determining whether there is the need for a trial -- whether, in other words, there
are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S.at
250.
Additionally, the party opposing summary judgment “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

12

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has
met its burden to show absence of material fact, the party opposing summary judgment
must then come forward with affidavits or other evidence demonstrating there is indeed a
genuine issue for trial.

Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323-25;

Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations
omitted).
III. Applicable Law
This case arises under ERISA.

“Where an ERISA plan confers upon its

administrator discretionary authority in the exercise of its power, the administrator’s denial
of benefits is reviewed under an abuse-of-discretion standard.” Booth v. Wal-Mart Stores,
Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 341 (4th Cir. 2000). Here, the Policy
provides Hartford with “discretionary authority to determine . . . eligibility for benefits and
to interpret the terms and provisions of the policy.” (Doc. 21-1, at 6). This language
unequivocally grants Hartford full discretionary authority regarding both eligibility
determinations and interpretation of the applicable terms of the Policy and, accordingly,
falls within the ambit of the Supreme Court’s holding in Firestone Tire & Rubber v. Bruch,
489 U.S. 101 (1989), and subsequent rulings from the United States Court of Appeals for
the Fourth Circuit. See Booth, supra. Therefore, Hartford’s determination is subject to
review under the abuse of discretion standard.
This deferential standard is unchanged by any potential conflict of interest, such as
here where the administrator both funds the Plan and determines eligibility for benefits

13

under that Plan. This Circuit, applying the Supreme Court’s holding in Metropolitan Life
Ins. Co. v. Glenn, 554 U.S. 105 (2008), applies the familiar abuse-of-discretion standard,
even where an administrator is operating under such a conflict of interest. Champion v.
Black & Decker Inc., 550 F.3d 353, 359 (4th Cir. 2008). See also White v. Eaton Corp.
Short Term Disability Plan, 308 Fed. Appx. 713, 717 (4th Cir. 2009) (unpublished opinion)
(“[A] conflict of interest can no longer operate to reduce the deference given to a fiduciary’s
discretionary decision to deny benefits.”).

The level of deference afforded to the

administrator’s decision is not reduced and “any conflict of interest is considered as one
factor, among many, in determining the reasonableness of the discretionary determination.”
Id.; see also Gilbert v. Medical Mut. of Ohio Co., 666 F.Supp.2d 625, 633 (S.D. W.Va.
2009) (Goodwin, CJ). Such other factors include, for example, (1) the language of the plan,
(2) the adequacy of the materials considered to make the decision and the degree to which
they support it, (3) whether the decision-making process was reasoned and principled, and
(4) whether the decision was consistent with the requirements of ERISA. Champion, 550
F.3d at 359.
“Under the abuse-of-discretion standard, we will not disturb a plan administrator's
decision if the decision is reasonable, even if we would have come to a contrary conclusion
independently. Ellis [v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997)]. Thus, we
may not substitute our own judgment in place of the judgment of the plan administrator.
See Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1008 (4th Cir. 1985). To be held
reasonable, the administrator's decision must result from a ‘deliberate, principled reasoning
process’ and be supported by substantial evidence. Guthrie v. Nat'l Rural Elec. Coop.

14

Assoc. Long Term Disability Plan, 509 F.3d 644, 651 (4th Cir. 2007); Brogan v.
Holland, 105 F.3d 158, 161 (4th Cir. 1997).” Williams v. Metroploitan Life Ins. Co., 609
F.3d 622, 630 (4th Cir. 2010).
“Under the standard of review appropriate for this case, plaintiff has the burden of
demonstrating, based on the record, that [the defendant’s] decision was unreasonable.
See Marcum v. Zimmer, 887 F.Supp. 891, 896 (S.D. W.Va. 1995). A decision to deny
benefits is not an abuse of discretion simply because a different decision might have been
logical or even better. Doe v. Group Hosp. & Med. Servs., 3 F.3d 80, 85 (4th Cir. 1993).
A decision to deny benefits under an ERISA plan is reasonable, and therefore not an abuse
of discretion, ‘if it is the result of a deliberate, principled reasoning process and is supported
by substantial evidence.’ See Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir.
1985). The quantum of evidence necessary to qualify as ‘substantial’ is not great; it must
be more than a scintilla, but can be less than a preponderance. Ellis v. Metro Life Ins.
Co., 126 F.3d 228, 235 (4th Cir. 1997).” Havens v. Metropolitan Life Ins. Co., 2006 WL
2371117, *5 (S.D. W.Va. August 14, 2006) (Faber, CJ).
Under an abuse of discretion standard, a district court owes the administrator “a duty
of deference” and plays a “secondary rather than primary role in determining a claimant’s
rights to benefits.” Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322
(4th Cir. 2008).
IV. Discussion
Based upon a careful review of the record in this case, this Court finds the decision
to terminate long term benefits to be reasonable and not an abuse of discretion. The

15

plaintiff contends that the decision was an abuse of discretion because (1) the plaintiff was
found to be disabled by the Social Security Administration; (2) the defendant ignored the
opinions of the treating physicians and, instead, chose to rely on the opinions of physicians
who conducted record reviews and did not personally examine the plaintiff; and (3) on
appeal the defendant did not obtain the opinions of Drs. Khan and Owunna.
With respect to the first issue, the fact that the Social Security Administration
awarded disability benefits to the plaintiff is not determinative. At the time the benefits were
awarded, plaintiff was also receiving disability benefits from Hartford. In Spry v. Eaton
Corp. Long Term Disability Plan, 326 Fed.Appx. 674, 680 (4th Cir. 2009) (unpublished),
the Fourth Circuit found an award of social security benefits not to be determinative, stating
that the “government's determination that Spry was disabled in November 2000 certainly
did not require the Administrator to decide, based on updated information and additional
medical opinions, that Spry remained unable to work more than five years later.” In this
case, the award was effective in January, 2004. As in Spry, the final decision in this case
was more than five years later.
With respect to the claim that Hartford ignored the opinions of the treating
physicians, ERISA does not require plan administrators to give special deference to treating
physicians’ opinions. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831-34
(2003). The record establishes that Hartford in fact did consider the opinions of plaintiff’s
treating physicians.
Finally, with respect to the contention that Hartford failed to obtain the opinions of
the treating physicians, the record shows otherwise. It is important to note that based upon

16

the ERISA regulations, Hartford only had until June 26, 2009 to make a final determination
on plaintiff’s disability claim. 29 CFR 2560.503-1(i)(1)(i) and (i)(3)(i) (providing claim
administrator with 45 days to make a determination on a claimant’s appeal and an
additional 45 days if additional time is needed under the circumstances, for a total of 90
days).

Because plaintiff and his treating physicians did not provide Hartford with

documents requested during the appeal period, Hartford tolled the 90 days on March 12,
2009 to give them additional time to provide that information. After making several requests
and not receiving any additional information from plaintiff’s counsel, Hartford proceeded
with its appellate review on May 12, 2009. (Doc. 20, pp. 26, 435, 457, 455, 451).
Drs. Vasquez and Lurie made several attempts to contact Drs. Owunna and Kahn,
but their calls were never returned prior to the time Hartford made a final determination on
plaintiff’s claim. On May 29, 2009, Dr. Vasquez wrote the following with regard to her
attempts to contact Dr. Owunna:
Communication with Dr. Owunna: I called Dr. Owunna on 5/26/09 at
10:50 AM. He answered the phone. I communicated the reason for my call.
He said he was too busy to talk and would call me back. I again called on
5/27/09 at 10:40PST. I was told he was with patients and I left a detailed
message on [his] personal voice mail. I again called on 5/28/09 at 6:36 AM
PST. I again was told he was with patients and was transferred to his
personal voice mail. I again left a message. I did not receive a call back from
Dr. Owunna.
(Id., p. 423).
Similarly, on that same date, Dr. Lurie wrote the following with regard to his attempts
17

to contact Dr. Kahn:
Attempts to reach AP: On 5/15/09, at 1:45 p.m. I left a secretarial message
with Sherry for Dr. Shahnoor Kahn [for] him to call me back. On 5/19/09 at
4:30 p.m. I left a voicemail message for Dr. Kahn. On 5/26/09, I left a
secretarial message with Sherry of Dr. Kahn’s office for him to call me back.
He never returned my call.
(Id., p. 408).
In response, the plaintiff submitted two exhibits, which this Court has stricken from
the record of this Court, since they were not part of the administrative record. These
letters, written after this case was filed, state that both Drs. Kahn and Owunna ultimately
called back and were told that the physicians no longer needed to speak with them. The
letters are silent as to when the return calls were made, which may have been after Drs.
Vasquez and Lurie submitted their reports to Hartford or even after Hartford completed its
review.
In addition, it is noteworthy that at no time did plaintiff’s counsel submit any reports
from Drs. Kahn and Owunna to Hartford.
V. Conclusion
For the reasons stated above, Defendant Hartford Life and Accident Insurance
Company’s Motion for Summary Judgment (Doc. 21) is GRANTED and this case is
DISMISSED from the docket of this Court. The Clerk is further DIRECTED to enter a
separate judgment in favor of the defendant.
It is so ORDERED.

18

The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: November 10, 2011.

19