329 F.Supp.2d 161 (2004) | Cited 3 times | D. Maine | August 10, 2004


Plaintiff Barbara Johnson alleges that Unum Life InsuranceCompany of America and UnumProvident Corporation (together"Defendants" or "Unum") unlawfully terminated her long termdisability benefits. Through this action, she seeks reliefpursuant to the Employee Retirement Income Security Act("ERISA"), 29 U.S.C. § 1132. Presently before the Court are:Defendants' Motion for Summary Judgment (Docket # 41),Plaintiff's Motion for Summary Judgment (Docket # 43) andDefendants' Motion to Strike Portions of Plaintiff's Objection toDefendants' Statement of Material Facts (Docket # 59). For thereasons set forth below, Defendants' Motion to Strike is DENIED,Defendants' Motion for Summary Judgment is GRANTED andPlaintiff's Motion for Summary Judgment is DENIED.

During the time that the above motions have been underadvisement, the Court has also received Plaintiff's Objection toMagistrate Judge Kravchuk's Denial of Plaintiff's Motion for Reconsideration (Docket # 70). The Court has fully considered thearguments presented in that Objection as well as the underlyingmotions in the course of deciding the pending cross motions forsummary judgment. That said, because the Court does not believethat the Magistrate Judge's Order Denying Plaintiff's Motion forDiscovery and Reconsideration (Docket # 68) is clearly erroneousor contrary to law, the Court finds Plaintiff's Objection to bewithout merit. Thus, to the extent Plaintiff seeks to have theMagistrate Judge's ruling modified or set aside pursuant toFederal Rule of Civil Procedure 72(a), the Court DENIESPlaintiff's Objection (Docket # 70).

I. Motion to Strike

Before turning to the merits of the cross motions for summaryjudgment, the Court must resolve Defendants' Motion to Strike.This Motion was filed in connection with the statements ofmaterial fact, which each side was required to file in accordancewith Local Rule 56. Through this Motion, Defendants object toalmost all of Plaintiff's responses that consist of anything morethan "Admitted." Most, if not all, of Defendants' objections havesome merit in that they detail Plaintiff's failure to comply witheither the letter or the spirit of Local Rule 56. Nonetheless, inthis Court's assessment, conducting an intensive line-by-linereview of Plaintiff's violations of Local Rule 56 would do littleto assist the Court in achieving the goals of this local rule orresolving the merits of the pending cross motions for summaryjudgment. Thus, in an exercise of its discretion, the CourtDENIES Defendant's Motion to Strike.

In general, Local Rule 56 contemplates that the Court willdiscount any statement of material fact or a response theretothat contains irrelevant argument or factual assertions that arenot supported by appropriate record citation. See LocalRule 56(e). In accordance with these principles, the Court hasdisregarded most of the objectionable portions of Plaintiff'sObjections to Defendants' Statement of Material Facts (Docket # 55) broughtto the Court's attention through Defendants' Motion to Strike.The Court has also disregarded Plaintiff's belated attempt to addadditional facts to the record via attachments to Plaintiff'sResponse to Defendants' Motion to Strike (Docket # 62). Moreover,the Court notes that its view of the facts and decision on themerits would not be changed even if it had considered Plaintiff'sobjections and other belated supplementary materials.

Having conducted a complete review of both sides' statements ofmaterial facts and the responses thereto, it is clear that theonly relevant factual disputes between the parties center ondisagreement regarding attempts by both sides to summarize,excerpt and characterize various cited portions of theadministrative record at issue in this case. The Court hasresolved these disputes by conducting a first-hand review of theadministrative record, focusing on the pages cited by theparties.1 In accordance with this procedure, the Courtlays out the material facts below as gleaned from the parties'submissions and the Court's review of the administrative record.

II. Cross Motions for Summary Judgment

A. Standard of Review

Generally, a party is entitled to summary judgment if, on therecord before the court, it appears "that there is no genuineissue as to any material fact and that the moving party isentitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).An issue is "genuine" if it could be resolved in favor of the nonmoving party by a rational factfinder drawing reasonable inferences. See, e.g., Ward v. Mass.Health Research Inst., 209 F.3d 29, 32 (1st Cir. 2000). A factis "material" if "the contested fact has the potential to changethe outcome of the suit under governing law if the dispute overit resolved favorably to the nonmovant." Navarro v. PfizerCorp., 261 F.3d 90, 93-43 (1st Cir. 2001). As the First Circuithas noted, the mere existence of cross motions for summaryjudgment generally does not change the method for construing thefacts. See Leahy v. Raytheon Co., 315 F.3d 11, 17 n. 5 (1stCir. 2002). In accordance with this standard, the Court hasgleaned the following undisputed facts from the administrativerecord: B. Background 1. Plaintiff's Unum Insurance Policy

Plaintiff Barbara Johnson ("Johnson") worked as a staff nursein the Southern Maine Medical Center Psychiatry Departmentthrough September 25, 1996, when she left work because of herdisability. As an employee of Southern Maine Medical Center,Johnson was covered by a group long term disability insurancepolicy issued by Unum Life Insurance Company bearing the PolicyNumber 503143 (the "Policy"). Within the body of the Policy theterm "UNUM" is used to refer to Unum Life Insurance Company. ThePolicy Certificate Section explicitly states: "When making abenefit determination under the policy UNUM has discretionaryauthority to determine your eligibility for benefits and tointerpret the terms and provisions of the policy." (UACL1036.)2

At the time of her original application for benefits Johnsonwas earning between $30,000 and $60,000 per year. As a result,Johnson was subject to the following Policy definitions ofdisability: You are disabled when UNUM determines that: — you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and — you have a 20% or more loss in weekly earnings due to the same sickness or injury. You will continue to receive payments beyond 60 months if you are also: — working in any occupation and continue to have a 20% or more loss in your indexed monthly earnings due to your sickness or injury; or — not working and, due to the same sickness or injury, are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.(UACL 1029.) The Policy goes on to define the term "limited" as"what you cannot or are unable to do" and the phrase "materialand substantial duties" as those "duties that are normallyrequired for the performance of your regular occupation; andcannot be reasonably omitted or modified." (UACL 1028-29.)"Regular occupation" is defined as "the occupation you areroutinely performing when your disability begins." (UACL 1028.)

The Policy explicitly lays out the "maximum period of payment"for which an insured may receive benefits. As it pertained toJohnson, the Policy stated that Unum would stop paying benefitsif "during the first 24 months of payments, when you are able towork in your regular occupation on a part-time basis but youchoose not to." (UACL 1021.) Alternatively, the Policy provided"after 24 months of payments, when you are able to work in anyoccupation on a parttime basis but choose not to." (Id.) ThePolicy defined "part-time basis" as "the ability to work and earnbetween 20% and 80% of your indexed monthly earnings." (Id.) Inrelevant part, the Policy also explained that Unum would nolonger pay benefits if "you are no longer disabled" or "yourdisability earnings exceed the amount allowable under the plan."(Id.) 2. Plaintiff's Medical Condition & Claim for Benefits

a. The Initial Claim

Johnson had worked as a registered nurse for approximately 23years when she initially filed for disability benefits in October1996. At that time, Johnson was plagued by neck and back problemscaused by degenerative disc disease. Johnson's degenerative spinecondition was initially diagnosed in 1987 after Johnson had herneck grabbed by a patient and began to experience numbness andtingling. She had cervical spine fusion surgery in 1993.

On her initial claim form, Johnson stated that the last day shehad been able to work in her position at Southern Maine MedicalCenter was September 25, 1996. In connection with her initialclaim for benefits, Johnson reported that within the field ofnursing she had experience with "mental health nursing, casemanagement, supervisory experience [and] training/teaching."(UACL 047.) She noted that she was "in the process of seekingvoc[ational] counseling." (Id.)

After a lengthy review of Johnson's claim, Unum sent Johnson aletter dated December 17, 1997 in which it informed Johnson thatit was denying her claim because Unum's investigation hadconcluded that Johnson was "capable of performing sedentarynursing jobs within the nurse occupation." (UACL 359.) Johnsonhired an attorney and informed Unum via a letter dated February13, 1998 that she wished to appeal the denial of her claim. Inconnection with that appeal, Johnson, with the able assistance ofcounsel, provided Unum with additional information to support herclaim and established that some of the factual information Unumand its experts had relied on was incorrect. (See UACL 458.) OnApril 14, 1998, Unum reversed its initial decision and awardedJohnson benefits as of December 25, 1996.3 b. Unum's 2001 Review of the Claim

In a letter dated June 1, 2001, Unum informed Johnson that itintended to review her eligibility to continue receiving benefitsafter December 25, 2001. As of that date, Johnson would have hadreceived benefits for 60 months. Thus, under the terms of thePolicy the definition of disability essentially changed, meaningthat Johnson was only eligible for benefits if Unum determinedthat she was "unable to perform the duties of any gainfuloccupation for which [she] was reasonably fitted by education,training or experience." (UACL 692 & 1029.)

In connection with the review, Dr. Merrill, a chiropractor andone of Johnson's long-time treating physicians completed atEstimated Functional Abilities Form as requested by Unum. On theform, Dr. Merrill indicated that Johnson could only occasionallylift, push or pull items weighing less than ten pounds. He notedthat Johnson could only occasionally climb stairs. He also statedthat Johnson could not bend, kneel, crawl, engage in repetitivemovements with her feet or use her hand for activities involving"power gripping" and "medium dexterity." (UACL 690.) He notedthat Johnson's condition "is essentially unchanged as compared toprevious evaluation." With respect to Johnson functional abilityas of May 2001, Dr. Merrill explained: The patient is currently leading a very sedentary life style and is currently taking courses in order to improve her teaching skills and medical background. Unfortunately she is not capable of doing any of the tasks of an RN especially in an emergency situation or working with disabled or psychiatric patients. . . . At this time I would not anticipate any change in the patient's physical or functional ability to perform the usual and customary duties as a registered nurse. I would recommend she continue to pursue additional education so that she can pursue a teaching career as opposed to a clinical setting of actually treating and assisting patients.(UACL 689.) In a supplemental statement following an appointmenton June 13, 2001, Dr. Merrill listed his objective findings:"Radiographic evaluation of the spine and extremities revealeddegenerative changes consistent with hypertrophic osteoarthritisof the cervical, thoracic and lumbar spine. Radiographs of kneerevealed chronic Grade IV patella subluxation which appears to be secondary to chondromalacia patella.Orthopedic testing is positive including cervical compressiontest." As to Johnson's restrictions, Dr. Merrill stated that shewas "capable only of sedentary [life] style at this time, sittingstanding [and] weight bearing all contraindicated." (UACL 699.)

In addition to seeing Dr. Merrill for treatment while she wasreceiving benefits, Johnson had continued to see Dr. Backer atleast annually. Dr. Backer was Johnson's personal physician andhad provided statements supporting Johnson's initial claim forbenefits. In connection with Unum's 2001 review, Dr. Backer'soffice reported last seeing Johnson on October 17, 2000 and notedthat that Johnson was scheduled for an annual appointment on July12, 2001.

In connection with Unum's 2001 review of Johnson's claim, Unumalso collected information from Johnson. In her writtenstatement, Johnson reported that she did not think she was ableto return to work part-time "at this time" and also noted thatshe did not believe that she would ever be able to return to workfull-time. (UACL 701.) She described that "maintaining [her] homeand [herself] is a full-time job. It takes a long time tocomplete tasks." (Id.) As an example, Johnson reported that ona good day she could wash her kitchen floor if she sat on a stooland went slowly. During a phone interview with a Unumrepresentative, Johnson reported that she had received a Bachelorof Science degree from the University of New England in May2001.4 She also expressed a desire to write children'sbooks. In the same interview, Johnson lamented not being able tobe independent due to chronic pain and inability to bear weight. After reviewing the updated information provided by Johnson andDr. Merrill, Unum scheduled Johnson for an independent medicalexam. On October 24, 2001, Johnson went for this exam with Dr.Vincent Herzog, D.O. After an exam and review of Johnson'schiropractic records as well as Johnson's self-reported medicalhistory, Dr. Herzog diagnosed Johnson with depression, obesityand deconditioning syndrome, chronic vocational dysfunction,history of cervical fusion, history of chronic low back pain anddisk surgery. Dr. Herzog concluded: Based on examination, I do think [Johnson] has initially part time light duty work capacity and could like[ly] progress to full time light duty capacity. With her history of cervical fusion and arm discomfort, I would recommend only occasional push/pull activity 21 minutes per hour, arm work right and left only occasional 21 minutes per hour. I would not recommend any type of repetitive overhead tasks. She has unlimited sitting capacity. I would only recommend 5 to 10 pounds for lifting and carrying, which is very light. I would recommend that she start at a four hour day and increase one hour every other week so that within eight weeks she could try full time light duty work. It is not clear what her skills and interests are with regard to vocational pursuits. She appears to have a perception that she has no work capacity and feels she is disabled. Based on physical examination there are some inconsistencies.(UACL 752.)

Following receipt of Dr. Herzog's report, Unum also ordered avocational review from Terry Hopkins, a Certified RehabilitationConsultant. This review concluded that despite her restrictionsand limitations, Johnson had "transferable skills" to other RNpositions such as insurance case manager, utilization review,nurse consultant, or telephonic case manager. (UACL 762.) OnNovember 16, 2001, Dr. Barry Gendron, D.O., reviewed theinformation compiled by Unum and concluded that "sedentarycapacity is objectively supported on a physical basis." (UACL764.)

On December 17, 2001, Johnson called to complain about herindependent medical exam with Dr. Herzog. According to Unum'snotes from that call, Johnson described the exam as an"abomination" saying that Dr. Herzog "barely looked at her."(UACL 775.) During the call, Johnson also reported that she would be forwarding a report froma new physician, along with new x-ray studies of her spine andshoulder. Dr. Merriam's report, dated November 7, 2001, detailedhis impressions of Johnson's x-ray studies as follows: "Mostsignificant findings at C5/C6 where there is severe degenerativedisc disease and spondylosis. There is apparent fusion of theC6/C7 Level, which may be post surgical. Please correlateclinically." With respect to Johnson's right shoulder, Dr.Merriam diagnosed "acromioclavicular joint hypertrophy." (UACL776.) Unum had both a physical therapist and a physician reviewthe x-rays and the report from Dr. Merriam; both concluded thatthese new materials did not change the conclusions previouslyreached by Dr. Gendron and Dr. Herzog.

In a four page letter dated December 31, 2001, Unum informedJohnson that it was terminating her disability benefits as ofDecember 25, 2001.5 In light of Dr. Herzog'srecommendation that she return to work part-time and thenincrease to full-time, Unum informed Johnson that it would payher an additional "2 months transition benefits to allow [her] toincrease to full time work." (UACL 783.) Because of these"transition benefits," Johnson essentially received benefitsthrough February 19, 2002. Unum's explanation of its decision toterminate Johnson's benefits indicated that she "no longer metthe contractual definition of disability for a physicalcondition" and that she had "exceeded [the] 24 months of benefitspayable for conditions related to a mental illness."6(UACL 783.) c. Johnson's Appeal of the 2001 Decision to TerminateBenefits

Johnson appealed the decision to terminate her benefits andUnum acknowledged receipt of her appeal in a letter dated March22, 2002. After "a full review of [Johnson's] file," Unum sent aletter dated April 23, 2002 in which it announced that it wasupholding its initial decision to terminate Johnson's benefits asof December 2001. In explaining the factual basis for itsdecision, Unum noted: (1) that both Dr. Herzog and Dr. Merrill,Johnson's own chiropractor, indicated that she had sedentary workcapacity, (2) that Johnson's file "indicates malingering, pooreffort and symptom exaggeration during testing on severaloccasions," (3) that Johnson had completed a bachelor's degree inMay 2001, and (4) that there were sedentary occupations thatJohnson could perform that were available in her local labormarket. (UACL 826.)

On May 13, 2002, Dr. Larry Anderson of Rheumatology Associates,P.A., sent Unum his office notes on Johnson. According to thesenotes Dr. Anderson first saw Johnson on February 26, 2002. Dr.Anderson listed the following diagnoses based on his initialexam: 1. Osteoarthritis of the cervical and lumbar spine with history at least raising the possibility of lumbar spineal stenosis. She describes morning stiffness, but there is no other clinical evidence to suggest axial disease or systemic rheumatic disease. 2. Probable osteoarthritis of the right knee. 3. Possible carpal tunnel syndrome. 4. Mechanical foot problems with pes planus. 5. Morbid obesity.(UACL 832.) In his most recently documented visit with Johnson onMay 13, 2002, Dr. Anderson noted that Johnson was challenging arecent termination of her disability benefits and that he hadtold Johnson that he would "support her appeal." (UACL 829.)Besides this note, Dr. Anderson's treatment notes do not indicateany opinion regarding Johnson's ability to undertake work in asedentary occupation. Unum had one of its in-house physicians, Dr. Woolson Doane,review the new information from Dr. Anderson. In a file notedated June 7, 2002, Dr. Doane concluded that "new informationdoes not suggest [restrictions and limitations] as of 12/24/01that would preclude full-time sedentary work capacity." (UACL837.) Unum subsequently sent Johnson a letter dated June 7, 2002in which it explained that the information from Dr. Anderson didnot provide a basis for the previous decision to uphold thetermination of benefits. In this letter, Unum explained itsposition that since it had found Johnson was no longer disabledas of December 24, 2001, her coverage under the Policy ended asof that date. As a result, Unum explained, "Any worsening in yourcondition or new diagnosis after December 24, 2001 is notcovered." (UACL 840.) Unum's June 7, 2002 letter closed byinforming Johnson that she had "exhausted all administrativeremedies." (UACL 839.)

C. Discussion

1. Review of Unum Life's Actions under the Arbitrary andCapricious Standard

Following Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101(1989), the denial of benefits by an administrator of a plancovered by ERISA is reviewed by courts using an "arbitrary andcapricious" standard if the benefit plan gives the administratoror fiduciary discretionary authority to determine eligibility forbenefits or to construe the terms of the plan. See id. at115. If the terms of the plan do not give the administrator orfiduciary discretionary authority to determine eligibility orconstrue the terms of the plan, judicial review proceeds under ade novo standard. See id. When applying an "arbitrary andcapricious" standard of review to a benefits determination, "thedistrict court must ask whether the aggregate evidence, viewed inthe light most favorable to the non-moving party, could support arational determination that the plan administrator actedarbitrarily in denying the claim for benefits." Leahy, 315 F.3d at 18. The mere existence of contrary evidencedoes not necessarily render the decision to deny benefitsarbitrary. See, e.g., Vlass v. Raytheon Employees DisabilityTrust, 244 F.3d 27, 30 (1st Cir. 2001). Rather, the insurer'sdecision must be upheld "if it was within [the insurer's]authority, reasoned, and supported by substantial evidence in therecord." Boardman v. Prudential Ins. Co., 337 F.3d 9, 15 (1stCir. 2003) (quoting Doyle v. Paul Revere Life Ins. Co.,144 F.3d 181, 184 (1st Cir. 1998)) (alteration in original).

The certificate section of the Policy at issue clearly states:"When making a benefit determination under the policy UNUM hasdiscretionary authority to determine your eligibility forbenefits and to interpret the terms and provisions of thepolicy." (UACL 1036.) This language and its placement within thecertificate section of the Policy is clearly sufficient to bringthis Policy within the heartland of plans that qualify fordeferential review under the arbitrary and capricious standard.See, e.g., Sidou v. UnumProvident Corp., 245 F. Supp.2d 207,218 (D. Me. 2003); Wade v. Life Ins. Co., 271 F. Supp.2d 307,318-319 (D. Me. 2003). Thus, the Court begins by asking whetherthe administrative record viewed in the light most favorable toJohnson suggests that Unum Life's decision to deny benefits wasreasonable. In answering this question, the Court does notsubstitute its own judgment for that of Unum Life. See Terryv. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998) (quoting MotorVehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29, 43 (1983)).

As described above, in 2001, Unum undertook an investigation ofwhether Johnson was able to perform any gainful occupation forwhich she was reasonably fitted by education, training orexperience. Having reviewed the administrative record assembledin connection with this review, the Court does not find Unum'sconclusion that Johnson could perform sedentary work irrational.Rather, Unum's decision was supported by substantial evidence.See, e.g., Gannon v. Metropolitan Life Ins. Co., 360 F.3d 211, 213 (1stCir. 2004); Lopes v. Metropolitan Life Ins. Co., 332 F.3d 1, 6(1st Cir. 2003). Specifically, the reports of Dr. Merrill,Johnson's chiropractor, and Dr. Herzog, the independent medicalexaminer, both suggested that Johnson had at least some sedentarywork capacity. In addition, Johnson's completion of herbachelor's degree and expressed interest in writing children'sbooks combine to suggest that she had both the skills and anadmirable desire to engage in gainful and meaningful work.Undoubtedly, the record also documents that Johnson has seriousback, neck and shoulder problems that impair her ability to dophysical activities, including many aspects of home maintenance.However, the transferable skills analysis conducted by Unum foundthat Johnson's training and work experience made her qualifiedfor various sedentary occupations that involve minimal physicalactivity.

Even if Johnson was not able to work in any of these sedentaryoccupations on a full-time basis, the fact remains that thelanguage of the Policy allowed Unum to terminate Johnson'sbenefits upon finding that she was able to "work in anyoccupation on a part-time basis but chose not to." (UACL 1021.)None of the reports from the medical professionals who examinedJohnson or her medical records indicated that she was unable todo part-time sedentary work. Rather, it appears that everyone butJohnson believed she could perform sedentary work on at least apart-time basis. Faced with this administrative record, the Courtwould be hard-pressed to conclude that Unum's decision toterminate Johnson's benefits was arbitrary and capricious.

2. Plaintiff's Request for De Novo Review

Based on allegations that the decision in this case wasactually made or influenced by UnumProvident, Plaintiff arguesthat she is entitled to de novo review of the decision to denyher claim. Pursuant to a de novo review, this Court would berequired to examine the administrative record through a less deferential lens and thereby determinewhether Defendants' decision to deny Johnson's claim was correct.

Plaintiff's argument raises two questions — one factual, theother legal. Factually, the Court would need to determine: Whatrole did UnumProvident (the ultimate parent holding company ofUnum Life) play in Unum Life's discharge of its fiduciary dutiesunder the Policy?7 Legally, the Court would need toaddress: What influence or role, if any, may a parent holdingcorporation have in the discharge of fiduciary duties by anindirect wholly owned subsidiary when only the subsidiarypossesses explicit discretionary authority under theERISA-regulated plan?8 The parties' briefs, along withthe materials and cases cited in support of their cross motions,do not offer much assistance in answering either of thesequestions.

In support of her argument that UnumProvident's allegedinvolvement in the decision to deny Johnson benefits requiresthis Court to conduct a de novo review, Plaintiff citesRodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580 (1st Cir.1993). In the portion of the Rodriguez-Abreu decision relevantto the issue at hand, the First Circuit affirmed the decision ofthe district court to conduct a de novo review when theevidence showed that all communication regarding a decision todeny benefits came from a plan administrator who was not grantedor delegated discretionary authority under the terms of the plan at issue.Id. at 583-85. In other words, Rodriguez-Abreu stands for theproposition that only those fiduciaries who are explicitlygranted or delegated discretionary authority under the terms ofthe plan are entitled to have their decisions reviewed under thedeferential "arbitrary and capricious" standard of review. Thus,when a decision to deny benefits is made by a person or entitywithout explicit discretionary authority, the Court shouldconduct a de novo review. See, e.g., Rubio v. Chock Full O'Nuts Corp., 254 F. Supp.2d 413, 425 (S.D.N.Y. 2003); Davidsonv. Liberty Mutual Ins. Co., 998 F. Supp. 1, 8-9 (D. Me. 1998).

It is undisputed that UnumProvident Corporation was not grantedor delegated any discretionary authority under the terms of thisPolicy. Thus, if UnumProvident, rather than Unum Life, decided todeny Johnson's claim, Plaintiff would arguably be entitled to denovo review. However, the record before the Court does notestablish that UnumProvident made the decision to terminateJohnson's benefits, nor does it create a trialworthy issue as towhether UnumProvident was ultimately responsible for the decisionto terminate Johnson's benefits. See Sidou, 245 F. Supp.2dat 219.

Assuming for the moment that Plaintiff could establish thatUnumProvident played an improper role in denying her claim andthereby open the door to de novo review, such a review wouldmake this case a much closer call. Upon reviewing the entireadministrative record, one cannot help but conclude that at allstages Unum's review focused on evidence that suggested Johnsonwas not disabled, as the term is defined in the Policy, whileignoring the evidence that suggested that Johnson was in fact(and likely still is) suffering from genuine impairments.Nonetheless, while Unum's review appears to have been somewhatselective, even a full review of the administrative record leadsthis Court to conclude that Johnson had at least some sedentary work capacity as well as transferable skills that would haveallowed her to work in gainful sedentary occupations.9

Thus, even under de novo review, this Court would concludethat Unum's decision to terminate Johnson's benefits after 60months was correct under the terms of the Policy. In light of theCourt's conclusion that the same outcome is warranted in thiscase under either de novo or arbitrary and capricious review,the Court need go no further in addressing the factual and legalquestions regarding what role, if any, UnumProvident played inthe decision to deny Johnson benefits.

III. Conclusion

For the reasons explained above, the Court DENIES Defendants'Motion to Strike and Plaintiff's Motion for Summary Judgment. TheCourt GRANTS Defendants' Motion for Summary Judgment and herebyORDERS the Clerk to enter a judgment in favor of Defendants.


1. In many other cases, the Court might well resolve theseissues related to the argumentative nature andmischaracterization of the stated material facts by summarilydenying the motions for summary judgment on the basis of genuineissues of material fact. However, there is no doubt that this isa case that is properly resolved via the pending cross motionsfor summary judgment and the Court sees no reason to delayresolution of Plaintiff's claim. See Curtin v. Unum Life Ins.Co., 298 F. Supp.2d 149, 152 (D. Me. 2004) ("In ERISA caseswhere the decision is to be made by the court based solely on theadministrative record, summary judgment is `merely a mechanismfor tendering the issue.'") (quoting Liston v. UNUM Corp.Officer Severance Plan, 330 F.3d 19, 24 (1st Cir. 2003)).

2. The Court has been provided with a copy of the fulladministrative record in this case containing a "UACL" Batesprefix. As necessary, the Court's Order will refer to theadministrative record by using these Bates numbers.

3. Johnson's Policy included a 90 day waiting period, known asan elimination period, during which an insured had to meet thePolicy definition of disability but was not eligible forbenefits. December 25, 1996 marked the end of Johnson'selimination period assuming she became disabled on September 26,1996.

4. Various parts of the administrative record appear to inferfrom the awarding of Johnson's degree that she was activelyattending classes, etc. in 2001. In fact, in a handwritten letterdated June 9, 2002, Johnson recounts her struggle to complete herdegree as follows: "I was dismissed from [the University of NewEngland] in 1998 and was never re-instated. I appealed theirdecision and my instructor agreed to change my grades if I couldcomplete the 2 assignments I had left. It took me 5 months but Iwas able to finish 3 days before graduation. I did not attend anyclasses and completed the work at home. . . ." (UACL 866.)

5. Although the footer of this letter refers to Unum Life, theletterhead suggests the letter is coming from "UnumProvident."(UACL 786.)

6. The December 31, 2001 letter from Unum appears tomisrepresent the types of illnesses that have a limited 24 monthpay period. Although the language of the Policy appear to limitbenefits for mental illnesses to 24 months, the letter sent toJohnson indicated that this time limitation also applied to anydisability "due to a sickness or injury, which [is] primarilybased on self-reported symptoms." (UACL 786.) This limitation ofcoverage on disabilities with "primarily self-reported symptoms"does not appear in the Policy. (See UACL 1020-1021.)

7. As Plaintiff alludes to in her submissions on the pendingmotions, Unum, in connection with its reply papers on a previousmotion to dismiss, conceded that "UnumProvident is a publiclytraded holding company that employs the people who process claimsfor benefits pursuant to Unum Life policies." Nonetheless,UnumProvident also insisted that "UnumProvident's employees . . .are controlled by Unum Life for the purposes of administeringclaims under Unum Life's policies." (Def.'s Reply to Mot. toDismiss (Docket # 11) at 2.) Of course, mere allusions toDefendant's Reply papers does not amount to production of"specific facts, in suitable evidentiary form, [that] establishthe presence of a trialworthy issue." Triangle Trading Co. v.Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999). Nonetheless,the Court acknowledges that the docket in this case is repletewith Plaintiff's belated and unsuccessful attempts to obtainfurther discovery on this "UnumProvident issue." (See, e.g.,Docket #s 40 & 68.) It is for this very reason that the Court hastaken the time to consider whether a de novo review wouldchange the outcome of this case. However, having reviewed theadministrative record, the Court concludes the outcome would bethe same, thereby making any additional discovery on the"UnumProvident issue" futile.

8. The corporate relationship between UnumProvident and UnumLife was previously described for the Court in the Affidavit ofSusan N. Roth, dated April 23, 2003 (Ex. 2 to Docket # 5).

9. In his review, Dr. Herzog concluded only that it was"like[ly]" that Johnson would be able to do such sedentary workfull time. Upon de novo review, the Court might questionwhether this could serve as a reasonable basis for concludingthat Johnson would in fact be capable of working full time byFebruary 2002 (the end of the "transitional benefits"). However,under the terms of the Policy, Johnson's benefits could beterminated in December 2001 if the record supported a findingthat she was capable of working even on a "part-time basis" butchose not to return to work. Based on the vocational analysis, itappears that the sedentary jobs Johnson could have performedwould have allowed her to "earn between 20% and 80% of yourindexed monthly earnings" (the Policy's definition of"part-time"). (UACL 1021.) Nonetheless, no portion of the recordsuggests that Johnson returned to work even on a part-timebasis.

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