GIANNONE v. METROPOLITAN LIFE INSURANCE COMPANY

311 F.Supp.2d 168 (2004) | Cited 4 times | D. Massachusetts | March 30, 2004

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Victoria Giannone received a long term disability allowancefrom the General American Life Insurance Company (GenAm) from January 31,1987, until December 1, 2000, when the defendant successor insurer,Metropolitan Life Insurance Company (MetLife), terminated her benefits.Giannone brought suit seeking de novo review of MetLife'sbenefits revocation under the Employment Retirement Income Security Act(ERISA), 29 U.S.C. § 1132(a). MetLife insists that because the LongTerm Disability Plan (Plan) documents grant it discretionary authorityover the award of benefits the court must apply an arbitrary andcapricious standard of review. The dispute over the appropriate standardof review, while it occupies the bulk of the parties' attention, isultimately of less significance than the issue of whether under eitherstandard MetLife's decision is supported by substantial evidence.Page 2

BACKGROUND

Giannone began working as a sales representative for Unitax, asubsidiary of McDonnell Douglas Corporation, on July 29, 1985. Her dutiesincluded calling on prospective and existing clients to solicit business;analyzing client service requirements; presenting sales proposals toprospects and customers; representing Unitax at meetings, conferences,and trade shows; and ensuring customer satisfaction. Giannone has abachelor's degree and prior work experience in sales.

Giannone filed a claim for benefits on February 25, 1987, stating thatshe had become disabled after the birth of her first child on August 6,1986. Giannone listed her disabilities as de Quervain's disease(thyroiditis) and bilateral carpal tunnel syndrome. While thecontemporaneous medical records from Giannone's many treating physicians— Dr. Leffert (orthopedic surgeon), Dr. Miller (rheumatologist),Dr. McCarthy (radiologist), Dr. Aronoff (Director of the North ShorePain Clinic), and Dr. Margies (orthopedist), report Giannone'scomplaints of severe hand pain and weakness, they also note "minimalclinical findings" and no "clinical evidence of carpal tunnelsyndrome." The doctors, while persuaded of the genuineness ofGiannone's complaints and her desire to heal, had difficulty identifyingan appropriate diagnosis. Dr. Margies and Dr. Aronoff recommendedpsychotherapy to assist Giannone in coping with stress and possiblepostpartum depression.

GenAm approved Giannone's claim, and she began receiving benefits as ofJanuary 31, 1987. GenAm thereafter required Dr. Stoeckle, Giannone'sinternist, to submit an annual Attending Physician's Statement attestingto her continued disability. In AugustPage 3of 1988, Giannone was evaluated by Jack Strader, a GenAmrehabilitation consultant. Strader reported that he doubted thatrehabilitation therapy

would be productive. I do think that she should be seen by a good psychiatrist, doctor of rehabilitation medicine. However, I'm not too optimistic since she's seen some very good doctors who are basically stumped by her illness. I do feel that she continues to be totally disabled.

In June of 1989, GenAm initiated a claims investigation, which includedsurveillance of Giannone. The investigator reported that Giannoneappeared disabled, and that she relied on her mother and husband to copewith child care, laundry, and house cleaning. After introducing himselfto Giannone and conducting an interview, the investigator concluded thatGiannone seemed "genuinely frustrated with her condition and [was]looking forward to returning to work." Dr. Stoeckle told the investigatorthat Giannone had "an enormous disability which is out of proportion tothe clinical findings, but [that] he [was] certain that she is notmalingering — there is no conscious avoidance of work to collectdisability benefits — and her pain is quite real."

In his 1990 Attending Physician's Statement, Dr. Stoeckle changed hisdiagnosis from carpal tunnel syndrome to chronic fatigue syndrome. InOctober of 1990, Bernard Randolph, a GenAm rehabilitation specialist,reported that Giannone showed marked physical impairments and thatbecause of "chronic pain and secondary gain factors (psychologic[al],monetary, and other) . . . it will be extremely difficult to returnher to the workplace." Randolph recommended a multi-disciplinary painmanagement program "in which organic diseases can be sorted out frombehavioral and psychologic[al] issues and an effective, coordinated planof action can be pursued." In June of 1993, a GenAmPage 4vocational consultant recommended that Giannone undergo afunctional capacity examination and a vocational evaluation and be seenby a psychiatrist. Giannone expressed interest, but stated that she wouldbe spending the summer in Florida with her parents and children. OnSeptember 22, 1993, the vocational consultant reported that Giannone haddeclined to cooperate with the proposed rehabilitation plan.

On October 12, 1993, William Kermond, an orthopedic surgeon, conductedan independent medical examination on behalf of GenAm. Dr. Kermondconcluded, "I do not believe that [Giannone] could return to her previousposition as a sales representative because of the difficulty in the useof her hands." He continued, "[t]his may not be a permanent phenomen[on]and with further investigation and further treatment, she may be capableof returning to work sometime in the future."1 On October 19, 1993,Dr. Robert Weiner, a psychiatrist engaged by GenAm, examined Giannone.Dr. Weiner concluded that Giannone's physical symptoms were psychologicalin origin and that she "may benefit from psychiatric treatment andhypnotherapy." Giannone did not seek psychiatric counseling. From 1994through 2000, GenAm received yearly updates from Dr. Stoeckle. Hereported that Giannone was disabled by chronic fatigue syndrome, orvariously Raynaud's syndrome, fibromyalgia, and migraine headaches. Hewas also of the opinion that Giannone did not have a disablingpsychiatric impairment.

On October 28, 1999, Dr. Jeffrey Guy, an orthopedic surgeon, examinedGiannone after she complained of neck pain. He found a full range ofmotion in Giannone's neck,Page 5"mild tenderness" along her trapezius, full strength in her armsand hands, no pain as a result of forward or lateral bending, and normalsensation and reflexes. In May of 2000, Giannone sought treatment at theCanyon Ranch Resort in the Berkshires. In a personal assessment completedfor Canyon Ranch, Giannone indicated that she had begun exercisingregularly on January 1, 2000. Her reported exercise regime included 30minutes of cardiovascular exercise, 30 minutes of strength training, and5 minutes of stretching, three times a week.

MetLife replaced GenAm as the administrator of the Plan in 2000. Underthe terms of the Plan, to be eligible for the first twelve months ofbenefits, a participant must meet the following definition of "totallydisabled": "[1] you are under the regular care of a licensed doctor whois not a member of your immediate family, and [2] you are unable toperform every duty of your occupation." After the first twelve months,the Plan defines "totally disabled" as follows: "[1] you remain under theregular care of a licensed doctor who is not a member of your immediatefamily, and [2] you are completely unable to work in any job for whichyou are qualified or for which you can become qualified by training,education, or experience." In July of 2000, MetLife requested currentmedical information from Giannone. On December 22, 2000, after Giannonehad failed to respond to two such requests, MetLife terminated herbenefits.

Spurred to action by the termination, on January 3, 2001, Giannonecompleted a lifestyle profile for MetLife. She stated that she drove herchildren to and from school (but often took to bed afterwards); that whenshe "felt up to it" she took care of the daily chores of life; that shebought mostly precooked and prepared foods because of her inability toPage 6lift pots and pans, open jars, and chop food; that she typicallyawoke at around 6:45 a.m. and went to bed at around 10:00 p.m.; that shehad not attempted to work since becoming disabled; that she did laundry,washed dishes, and went shopping (with family members' assistance); thather physician had not restricted her travel or driving; and that she readdaily, took recreational walks, and swam occasionally.

On January 24, 2001, Dr. Stoeckle submitted his annual AttendingPhysician's Statement. His diagnoses of Giannone's condition includedfibromyalgia, chronic fatigue syndrome, and Raynaud's syndrome. Hereported that Giannone had "slight" psychological limitations, but wasable to function under stress and engage in normal interpersonalrelations. In Dr. Stoeckle's estimate, Giannone was able to sit for twohours, stand for one hour, and walk for one hour, all intermittently. Shewas able to climb, twist, bend, and stoop, reach above her shoulderlevel, and operate a motor vehicle. She could perform repetitive finefinger and eye and hand movements with both hands. Dr. Stoeckleconcluded, however, that Giannone was able to work "a total of 0 hoursper day" because of the sum of her physical limitations.

On April 25, 2001, a MetLife case manager, Bonnie Knutti, informedGiannone that her benefits were being terminated because of the lack ofobjective medical evidence supporting Dr. Stoeckle's diagnosis offibromyalgia and chronic fatigue syndrome. Knutti stated that MetLifewould reconsider if Giannone provided documentation of her treatment,including doctors' office notes, results of physical examinations,laboratory findings, records of mental health treatment, and physicaltherapy and pharmacy records.Page 7

On May 10, 2001, Dr. Stoeckle's office printed a case summary forMetLife compiling the entries in Giannone's medical records from 1986through a visit on January 10, 2001. The summary indicated that Giannonehad first reported chronic fatigue on November 17, 1989, and migraineheadaches on November 28, 1995. The summary also indicated that adiagnosis of fibromyalgia was first made on May 21, 1997, althoughindicative symptoms had been recorded as early as February 18, 1993. Thelast entry suggesting carpal tunnel syndrome was dated December 31, 1990.

On June 13, 2001, Giannone formally appealed MetLife's decision toterminate her benefits. In support of her appeal, she submitted a June 5,2001 letter from Dr. Stoeckle, together with his curriculum vitae, andpharmacy records. While Dr. Stoeckle's letter repeated his opinion thatGiannone was totally disabled, he did not forward any additional medicalrecords. On July 24, 2001, Met Life denied Giannone's appeal, explainingas follows.

As noted in our April 25, 2001, letter, we have not been provided with medical documentation noting and identifying the current active tender points. We have not received any current objective physical examination findings or office notes. No treatment plan was noted. We also have not received any physical therapy, counseling or mental health assessments. We did not receive medical records that documented or supported Dr. Stoeckle's June 5, 2001 letter. We have determined that the additional medical information submitted on appeal does not change our previous decision to terminate benefits.On September 1, 2001, Giannone submitted further medical recordsfrom Dr. Stoeckle and the Massachusetts General Hospital (MGH), progressnotes from the Canyon Ranch Health Resort, an Arthritis Foundationpamphlet discussing fibromyalgia, and a letter from the Tufts Health Plandenying Giannone's request for coverage for acupuncturePage 8treatment. Giannone pointed out that her fibromyalgia wasdocumented in the MGH records, as for example, in a medical note from aMay 21, 1997 visit to Arthritis Associates,2 in an October 20, 1999letter from the MGH/Physical Therapy Department, in a case summary noteand pharmacy report dated May 10, 2001, and in an Internal MedicineAssociates note of January 10, 2001.

On November 5, 2001, Giannone submitted additional information insupport of her appeal, including an October 5, 2001 office note and anOctober 18, 2001 report from Dr. William Pachas, a rheumatologist at MGHwho had assumed Giannone's care from Drs. Miller and Phillips. TheOctober 5, 2001 office note indicated that Giannone had a fifteen yearhistory of fibromyalgia; that fatigue was her most disabling symptom;that she reported memory difficulties and spatial problems; and that herlaboratory results were normal. Dr. Pachas concluded that Giannone wasmildly depressed. He also noted that she exhibited eighteen of theeighteen tender points associated with fibromyalgia. In his October18, 2001 report, Dr. Pachas stated that Giannone "suffers from extremelysevere fatigue and generalized body pains" and "remains totallyincapacitated for work on the account of her severe symptoms."

On December 5, 2001, Dr. Jeffrey Kahn, who is board certified inphysical medicine and rehabilitation, was hired by MetLife to reviewGiannone's medical records. Dr. KahnPage 9focused on the fact that Giannone had never pursued the psychiatrictreatment recommended by Dr. Weiner in 1993.

There is an inconsistency between the stated physical capabilities noted by Dr. Stoeckle in his attending physician report, the claimant's own stated physical capacities at that same time, and his rendered opinion that Giannone would be incapable of working in any capacity for any period of time. Unless a non-physical source of incapacity from work such as a psychiatric disorder is offered as an explanation for why retained physical capacities are not translatable into work capacity, there is no obvious explanation for this discrepancy. However, depression or other psychiatric condition is not offered as the major disabling condition at the time of form completion.

On January 18, 2002, MetLife upheld its termination of Giannone'sbenefits, referencing Dr. Kahn's report and his comments on Dr.Stoeckle's January 24, 2001 Attending Physician's Statement. "We[MetLife] have determined that the additional medical informationsubmitted for the second appeal does not change our previous decisions toterminate benefits." On April 2, 2002, Giannone's attorney requested afurther review, enclosing a letter from Dr. Stoeckle responding to Dr.Kahn's report. On April 18, 2002, MetLife denied the request. On June 4,2002, Giannone filed this action.

DISCUSSION

Giannone seeks to "recover disability benefits due her under the Plan,to enforce her rights under the Plan, and to seek clarification of herright to future benefits under the Plan." Complaint ¶ 6. SeeTurner v. Fallon Community Health Plan. Inc.. 127 F.3d 196, 198 (1stCir. 1997). Count I of the Complaint alleges that MetLife's terminationof Giannone's benefits was not supported by substantial evidence. CountII asserts that MetLife's review of Giannone's appeal was biased becauseof a financial conflict of interest.Page 10

De novo review is the default standard for ERISA claims"unless the benefit plan gives the administrator or fiduciarydiscretionary authority to determine eligibility for benefits or toconstrue the terms of the plan." Firestone Tire and Rubber Co. v.Bruch, 489 U.S. 101, 115 (1989). If plan administrators are grantedsuch authority, an "arbitrary and capricious" standard of review willapply. See Recupero v. New England Tel. & Tel. Co.,118 F.3d 820, 827 (1st Cir. 1997). Under this deferential standard, thedecision of a plan administrator will be upheld even where contraryevidence might suggest a different result, so long as the administrator'sdecision is reasoned and supported by substantial evidence in the record.Associated Fisheries of Maine. Inc. v. Daley, 127 F.3d 104, 109(1st Cir. 1997). Despite the holding of Firestone Tire, plansponsors have been unaccountably loath to amend their plans to make thedelegation of discretionary authority unambiguously explicit. The resultis a plenitude of litigation contesting the standard of review to beapplied in individual cases, with claimants advancing inventive, if attimes impervious, arguments for applying the more friendly denovo standard. See, e.g. Brigham v. Sun Life of Canada.317 F.3d 72, 80-81 (1st Cir. 2003); Terry v. Baver Corp.,145 F.3d 28, 37 (1st Cir. 1998); Rodriguez-Abreu v. Chase ManhattanBank, N.A., 986 F.2d 580, 583-584 (1st Cir. 1993).

This case is no exception. Giannone first asserts that Met Life canpoint to no specific grant of authority that it (as opposed to itspredecessor GenAm) received from Giannone's former employer, McDonnellDouglas (now Boeing).3 She cites McKeehanPage 11v. Cigna Life Ins. Co.. 344 F.3d 789 (8th Cir. 2003),where the Court found that a substituted claims administrator hadimproperly assumed discretionary authority that had never been delegatedby the plan sponsor to either it or its predecessor. Here, by contrast,GenAm served dual roles as the insurer and administrator of a Plan thatunambiguously conferred discretionary authority on the Plan's "insurer."When MetLife, pursuant to a court-ordered liquidation, acquired all ofthe assets and liabilities of GenAm, it stepped into GenAm's shoes, andin so doing acquired all of the powers conferred by the Plan on GenAm,including the discretionary authority to make benefits decisions.4Giannone's second contention is that none of the relevant Plan documents— the 1989 Summary Plan Description (SPD), the 1986 Group InsuranceCertificate, or the 1985Page 12SPD — contain sufficiently explicit language conferringdiscretion on the Plan administrator.5 This argument is impossible toreconcile with the plain wording of the documents themselves. The 1989SPD states that: [e]ach insurance company has the exclusive right to interpret the provisions of the plans it offers or administers. The decisions of the insurance company are conclusive and binding.The 1985 SPD contains nearly identical language, specifying that: [t]he insurance company has the exclusive right to interpret provisions of the Program and its decisions are conclusive and binding.

Giannone next argues that the 1986 Group Insurance Certificate "shouldbe the sole controlling document for purposes of determining Mrs.Giannone's eligibility for disability benefits, and for [the]administration and payment of benefits." Plaintiff's Memorandum, at 5.The thrust of the argument, which is somewhat difficult to grasp,apparently rests on the contention that the Certificate, which Giannoneasserts confers only limited discretion on the insurer, cannot beaugmented by the arguably broader discretionary language contained ineither the 1985 or the 1989 SPD. The rule under ERISA, however, is that acourt will consider all of the relevant Plan documents, including theSPDs, in construing a Plan. See Bond v. Cerner Corp.,309 F.3d 1064, 1067-1068 (8th Cir. 2002) ("When construing the language of anERISA plan we begin by examining the language of the plan documents. Eachprovision should be read consistently with the others and as part of anPage 13integrated whole."). Moreover, the Certificate does containdiscretionary language. It states that:

[w]hile a claim is pending, the Insurance Company, at its own expense, will have the right to request a medical examination for the employee and its determination of his Total Disability will be conclusive.Giannone argues that a "fair reading" of this clause grants theadministrator the discretion to order an independent medical examinationwhile a claim is pending, and nothing more. Even if this reading of theclause was accurate, Giannone's argument that her claim is no longer"pending" is simply incorrect as under the Plan disability benefits aresubject to termination whenever MetLife determines that a participant is"no longer totally disabled." Thus, a claim is "pending" so long asbenefits are being paid.

Next, Giannone argues that her case should be governed solely by the1985 SPD, which was in effect at the time she became disabled.

There is no basis to import a deferential standard of review from an amended plan that was implemented after the onset of Mrs. Giannone's disability, and which potentially could detrimentally affect her rights. Since Mrs. Giannone was already determined to be disabled under an earlier plan document, it is patently unfair to subject her to a different level of review after the fact.Plaintiff's Memorandum, at 13. Even if this argument was true, itis of no help to Giannone because, as previously noted, the 1985 SPDstates that "[t]he insurance company has the exclusive right to interpretprovisions of the Program and its decisions are conclusive and binding."This language is plainly sufficient to give Giannone "the requisite ifminimum clarity that a discretionary determination is envisaged."Herzberger v. Standard Insurance Co.. 205 F.3d 327, 331 (7thCir. 2000). See also Brigham, 317 F.3d at 81.Page 14

Finally, Giannone argues that a de novo standard of reviewshould be applied because of the conflict of interest that arises "whenan insurer [like MetLife] serves as plan fiduciary and pays claims out ofits own assets." Plaintiffs' Memorandum, at 16. This is a familiarargument and the First Circuit has gone so far as to say that where agenuine conflict of interest exists, a review under the arbitrary andcapricious standard should be given "more bite." Doyle v. The PaulRevere Life Ins. Co.. 144 F.3d 181, 184 (1st Cir. 1998). Courts,however, are reluctant to infer a conflict of interest from the mere factthat an entity acts as both insurer and plan administrator,Pari-Fasano v. ITT Hartford Life & Accident Ins. Co..230 F.3d 415, 419 (1st Cir. 2000), or may have an ecumenical concern forpreserving company assets. Doe v. Travelers Insurance Co..167 F.3d 53, 57 (1st Cir. 1999).

Turning to the substance of the case, Giannone argues that even under adeferential standard of review, MetLife's decision to terminate herbenefits was arbitrary and capricious because: (1) MetLife's rationalefor the denial of benefits changed with each additional submission ofmedical evidence; and (2) MetLife failed to obtain the independentopinion of an expert qualified to evaluate fibromyalgia. MetLife'sinitial, and perfectly understandable, decision to terminate Giannone'sbenefits was based on her failure to respond to repeated requests tobring her medical information up to date. After agreeing to give Giannonea second chance, and after receiving additional information, MetLifeengaged Dr. Kahn to conduct an evaluation of Giannone's medical records.Based on Dr. Kahn's review, MetLife reaffirmed the denial of Giannone'sappeal.Page 15

There is no requirement under ERISA that a plan administrator base itsdecision on the opinions of a claimant's treating physicians. SeeMatias-Correa v. Pfizer. Inc.. 345 F.3d 7, 12 (1st Cir. 2003).See also Black & Decker Disability Plan v. Nord,538 U.S. 822, __, 123 S.Ct. 1965, 1972 (2003) ("Plan administrators . . . maynot arbitrarily refuse to credit a claimant's reliable evidence,including the opinions of a treating physician. But . . . courts haveno warrant to require administrators automatically to accord specialweight to the opinions of a claimant's physician. . . ."). Nor, is theadministrator precluded from relying on the assessment of a non-examiningphysician like Dr. Kahn. Gannon v. Metropolitan Life Ins. Co..__ F.3d __, 2004 WL 307162, 4-5 (1st Cir. 2003). Still, MetLife'scomplete rejection of the opinions of Dr. Stoeckle and Dr. Pachas and itstotal embrace of Dr. Kahn's evaluation is questionable. Dr. Kahn'scursory summation of the medical evidence is based on the speculativeconclusion, derived principally from the eight year old report of Dr.Weiner (who did not examined Giannone), that Giannone's ailments arepsychosomatic in origin. For example, Dr. Kahn noted what he thought wasan "inconsistency between the stated physical capabilities noted by Dr.Stoeckle" (as well as those reported by Giannone herself) and Dr.Stoeckle's ultimate opinion that Giannone was incapable "of working inany capacity." In Dr. Kahn's view, this "inconsistency" could only beexplained by a "psychiatric disorder." Hence, his conjecture thatGiannone's fibromyalgia "may in fact possibly be a manifestationof long-standing unresolved depression as suggested at the onset of hercomplaints." (Emphasis added). This is perhaps true, although Dr. Kahn's"known clinical perspective" that fibromyalgia is aPage 16psychiatrically-induced disorder may not be medically sound.6Cf. Hawkins v. First Union Corp. Long-Term Disability Plan.326 F.3d 914, 918-919 (7th Cir. 2003). Of greater significance, however, isthe fact that Dr. Kahn's report does not address either the issue ofGiannone's disability (whatever its etiology) or her capacity for gainfulemployment.7Page 17

Substantial evidence is evidence "reasonably sufficient to support aconclusion." Vlass v. Raytheon Employees Disability Trust.244 F.3d 27, 30 (1st Cir. 2001). But one would think that substantialevidence means actual evidence, not third-hand speculation about thepossible cause of a claimant's disability. Two recent First Circuitdecisions involving MetLife are illustrative. In Vlass, thedistrict court was persuaded by the "impressive" opinion of Vlass'sprimary treating physician that his diabetic neuropathy and chronic painhad rendered him permanently disabled and incapable of any kind ofphysical activity. In overturning the district court, the Court ofAppeals noted that MetLife had based the denial of benefits on thecontrary opinions of other of Vlass's physicians, a vocational assessmentthat had found Vlass capable of performing sedentary to light level work,and a "damning" surveillance report showing Vlass engaged in strenuousphysical activity. Similarly, in Gannon, despite a treatingphysician's finding of total disability, the First Circuit noted thatMetLife had relied on a physical therapist's evaluation, made after a twoday physical examination, that Gannon was capable of working a full fortyhour week, a Social Security Administration finding (in denying Gannondisability benefits) that she was able to move about, sit most of theday, and lift up to ten pounds, and an investigator's report of havingobserved Gannon, in a single day, driving to the post office, shopping ata department store, and visiting a car dealership. Gannon. F.3d__, 2004 WL 307162, at *2-3. A doctor who performed an independent reviewof Gannon's medical records concluded that she could do sedentary work.Finally, a vocational consultant identified a number of occupations thatGannon could perform based upon herPage 18experience and qualifications. Looking at the sum of this evidence,the Court of Appeals concluded that "in the aggregate, MetLife's evidenceis both substantial and reasonably supportive of its decision toterminate Gannon's disability benefits." Id. at *4.

Here by contrast, the minimal evidence on which MetLife relied indetermining that Giannone is not totally disabled, when weighed against adocumented fifteen year medical history and the uniform opinion of ahalf-dozen treating physicians (and GenAm's own investigator) that hercomplaints are genuine, compels the conclusion that MetLife's decision,to the extent that it finds support in the record, was "overwhelmed bycontrary evidence," and was therefore an abuse of discretion. SeeDonahue v. FMC Corp.. 74 F.3d 894, 901 (8th Cir. 1996),abrogated on other grounds by Black & Decker Disability Plan v.Nord. 538 U.S. 822 (2003).

ORDER

For the foregoing reasons, Giannone's motion for summary judgment isALLOWED as to Count I of the Complaint and DENIED asto Count II.8 MetLife's cross-motion for summary judgment isDENIED. The case will be REMANDED to MetLife for thelimited purpose of calculating the benefits owed to Giannone from herbenefits termination date of December 1, 2000, to May 1, 2004, the dateon which the court will enter final judgment ordering restitution andreinstatement. It remains open to MetLife thereafter to requirePage 19Giannone to provide continuing documentation of her disability andto cooperate with any reasonable request to submit to an independentmedical examination or vocational or rehabilitation assessment. As theprevailing party, Giannone will submit a proposed form of final judgmenton or before May 15, 2004. The court will entertain an application fromGiannone's counsel for an award of reasonable attorney's fees and costs.See 29 U.S.C. § 1132(g)(1). Cf. Cottrill v. Sparrow.Johnson & Ureillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996).Counsel should also consult In re Fidelity/Micron Sec. Litiq.,167 F.3d 735, 738-739 (1st Cir. 1999).

SO ORDERED.

1. On November 2, 1993, Dr. Kermond offered the additional opinionthat while Giannone could not engage in any work that required her todrive, she might be able to work at home with a telephone headset.

2. MetLife contends that the Arthritis Associates notes areinconsistent with a diagnosis of fibromyalgia. For example, an ArthritisAssociates physical examination conducted on April 16, 1997 foundGiannone's musculoskeletal system to be normal, including a full range ofmotion in all joints. Nonetheless, the evaluator concluded that "althoughher history is somewhat unusual, she certainly does have most features offibromyalgia including tender points on exam."

3. "There are three ways to acquire fiduciary status under ERISA:(1) being named as the fiduciary in the instrument establishing theemployee benefit plan, 29 U.S.C. § 1102(a)(2); (2) being named as afiduciary pursuant to a procedure specified in the plan instrument, [forexample], being appointed an investment manager who has fiduciary dutiestoward the plan, 29 U.S.C. § 1102(a)(2); 29 U.S.C. § 1002(38);and (3) being a fiduciary under the provisions of 29 U.S.C. § 1002(21)(A),which provides that a person is a fiduciary `with respect toa plan to the extent (i) he exercises any discretionary authority ordiscretionary control respecting management of such a plan or exercisesany authority or control respecting the management or disposition ofassets, (ii) he renders investment advice for a fee or othercompensation, direct or indirect, with respect to any moneys or otherproperty of such plan, or has any authority or responsibility to do so,or (iii) he has any discretionary authority or discretionaryresponsibility in the administration of such plan.' 29 U.S.C. § 1002(21)(A)."Glaziers and Glassworkers Union Local No. 252 AnnuityFund v. Newbridqe Securities. Inc.. 93 F.3d 1171, 1179 (3d Cir.1996). MetLife falls into the first and third categories.

4. The following information about MetLife's acquisition of GenAmappears on the Missouri Department of Insurance website,www.insurance.mo.gov/news/genam/faq.htm. As a result of a liquidity crisis, General American Life Insurance Co. (GALLIC) was placed under Missouri Department of Insurance (MDI) administrative supervision in August 1999. At that time, all parties agreed that the best solution was the sale of GALLIC and its affiliates. Metropolitan Life Insurance Co. (MetLife) purchased the companies from the parent, General American Mutual Holding Co. (GAMHC), for $1.2 billion on Jan. 6, 2000. MDI administrative supervision ended at that time.

5. Giannone's argument in this regard is inconsistent with herComplaint, in which she alleges that "[t]he Defendant MetLife serves asfiduciary and administrator the [sic] Plan, and in that role, itexercises discretion to interpret provisions of the Plan." Complaint¶ 21.

6. Fibromyalgia has achieved clinical acceptance as a recognizedmedical syndrome only in the last decade or so. While there is noconsensus as to the cause of its many symptoms, current medical thinkingsuggests (in addition to psychological or psychiatric factors), achemical imbalance causing nerve cells in the spinal cord and brain tobecome oversensitized, an imbalance of brain chemicals altering mood andlowering a patient's threshold for pain, and hormonal deficienciesresulting in similar mood effects.

7. In its brief, MetLife contends that Dr. Stoeckle's advice toGiannone to exercise more and her statement to Canyon Ranch that she wasexercising three times a week are "impossible to reconcile" with Dr.Stoeckle's opinion that Giannone is not able to work even an hour a day.The brief also cites Giannone's statement that when she "feel[s] up to it[she] takes care of the daily responsibilities of life." And finally,MetLife cites Dr. Guy's 1999 findings that Giannone's musculoskeletalsystem was "essentially normal," and that she had full strength in herarms and hands. There is, however, no indication in the record thatMetLife's administrators relied on these facts in deciding to terminateGiannone's benefits. The final denial of Giannone's appeal cites only Dr.Kahn's report as its basis. Whether a court may credit evidence in therecord that the administrator could have relied upon, despite the lack ofany indication that the administrator did in fact rely on such evidence,to my knowledge has not been addressed by the First Circuit. But seeUniversity Hospitals of Cleveland v. Emerson Elec. Co..202 F.3d 839, 848 n.7 (6th Cir. 2000). [l]t strikes us as problematic to, on one hand, recognize an administrator's discretion to interpret a plan by applying a deferential "arbitrary and capricious" standard of review, yet, on the other hand, allow the administrator to "shore up" a decision after-the-fact by testifying as to the "true" basis for the decision after the matter is in litigation, possible deficiencies in the decision are identified, and an attorney is consulted to defend the decision by developing creative post hoc arguments that can survive deferential review . . . To depart from the administrative record in this fashion would, in our view, invite more terse and conclusory decisions from plan administrators, leaving room for them — or, worse yet, federal judges — to brainstorm and invent various proposed "rational bases" when their decisions are challenged in ensuing litigation.

8. The court recognizes that "summary judgment" is something of amisnomer in an ERISA context, see Recupero. 118 F.3d at 834,but will adopt the nomenclature assigned to the motions by theparties.Page 1

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