MARQUEZ-MASSAS v. SQUIBB MANUFACTURING

344 F.Supp.2d 315 (2004) | Cited 3 times | D. Puerto Rico | October 27, 2004

JUDGMENT

The court having dismissed the complaint filed in this casethrough its Order issued on this date,

It is hereby ORDERED AND ADJUDGED that the complaint filed inthis case be and the same is hereby DISMISSED.

IT IS SO ORDERED. ORDER GRANTING PRUDENTIAL'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Ramonita Marquez Massas, filed the present actionunder the Employee Retirement Income Security Act ("ERISA"),29 U.S.C. § 1132(a) (1(B), challenging the termination of benefitsreceived under the Long Term Disability Plan established byPlaintiff's ex-employer, Brystol Myers Squibb ManufacturingCorporation ("Brystol") and insured by a policy issued byDefendant, Prudential Insurance Company of America("Prudential").

The action was initially brought against both Brystol andPrudential but Plaintiff subsequently dismissed the claimsasserted against her employer.1

Prudential has moved the court to enter summary judgmentupholding its decision which Plaintiff has opposed. The courthaving reviewed the memoranda filed by the parties in light of theapplicable law and the record before it hereby finds as follows.

FACTUAL BACKGROUND

Effective on January 1st, 1981, Prudential issued a GroupLong Term Disability Policy (the "Policy") to insure a Long TermDisability Plan (the "LTD Plan") established by Brystol for thebenefit of its employees. The LTD Plan is an employee welfarebenefit plan covered by ERISA.

Prudential acted as claims administrator for claims filed underthe Policy. In that capacity Prudential processed, reviewed,approved and/or denied long term disability benefit claims filedunder the Policy.

The LTD Plan and the Policy provided benefits to any coveredemployee/participant who became totally disabled provided theemployee met the definition of "Total Disability" and that thedisability was continuous.

Pursuant to the terms of the Policy, a covered employee isconsidered totally disabled when he/she meets the followingconditions: due to sickness or accidental bodily injury (a) thecovered employee is completely unable to perform any and everyduty pertaining to his occupation with the Employer; and (b)after the Initial Duration of a period of disability, the coveredemployee is completely unable to engage in any and every gainfuloccupation for which he is reasonably fitted by education,training or experience. Plaintiff was a Brystol employee from December 1986 untilAugust 2, 1994, a participant under Brystol's LTD Plan, and acovered employee insured by the Policy.

Plaintiff held the position of Payroll Accountant. Her dutiesin this position included processing employees' paychecks,entering the necessary information into the payroll system,performing account analyses of payroll accounts, tracing andadjusting errors, and maintaining close control over time card'sdistribution.

On August 2, 1994, Plaintiff became disabled due to medicalconditions related to a back problem and began receivingshort-term disability benefits for a period of 26 weeks.

At the conclusion of that 26-week period, in December 1994,Plaintiff applied for long term disability benefits under thePolicy.

Upon review of her medical records, Prudential determined thatPlaintiff was totally disabled from performing the duties of herown occupation and approved benefits for an initial period of 12months, commencing January 31, 1995. When the end of the initial12 month period was approaching, Prudential advised Plaintiff itwould conduct a thorough evaluation of her condition to determinewhether, after January 31, 1996, she continued to be eligible fordisability benefits under the Policy.

On April 8, 1996, Prudential completed its evaluation ofPlaintiff's conditions and determined that she was eligible tocontinue to receive disability benefits under the Policy since,at that time, Plaintiff was totally disabled from performing theduties of any job. However, Plaintiff was informed that anotherevaluation would be conducted in April 1997 to determine whethershe still remained totally disabled under the terms of thePolicy.

In July 1997 Prudential initiated a new evaluation process ofPlaintiff's condition and decided to extend Plaintiff'sdisability benefits until April 30, 1998 while it continued toevaluate Plaintiff and analyze the medical information providedby her.

Based on its assessment, Prudential concluded that Plaintiffwas no longer eligible to continue receiving disability benefitsunder the Policy and on August 27, 1998, Plaintiff was notifiedthat her LTD claim was being denied. Plaintiff was informed that,in light of her physical condition, her educational backgroundand professional experience, she was able to work in a sedentaryjob.

Disagreeing with Prudential's determination, Plaintiffrequested reconsideration. On February 19, 1999, Prudentialfinalized its review of Plaintiff's claim on Appeal and concludedthat it was appropriate to uphold the decision to terminatePlaintiff's long term disability benefits. The decision wasaffirmed on February 21, 1999.

Once again Plaintiff appealed Prudential's denial of benefits,this time represented by counsel. Prudential performed yetanother evaluation and concluded that there was no objectiveevidence substantiating total disability from performing theduties of any sedentary job, with the restrictions of no over theshoulder right arm work or static use of the arms in an extended outreachedposition. Accordingly, on June 3, 1999, Prudential reaffirmed itsdetermination to deny long term disability benefits.

Upon receipt of the letter upholding the denial of benefits,Plaintiff requested a final review of the decision. This lastreview was performed by the Appeals Committee. In evaluatingPlaintiff's claim on appeal, the Committee considered Plaintiff'sentire claim file, including all additional medical evidencesubmitted by Plaintiff for the appeal.

Upon completing an evaluation of Plaintiff's entire claim andmedical records, the Committee confirmed the decision toterminate Plaintiff's disability benefits. Prudential concludedthat Plaintiff's medical record, including the new documentation,did not support a finding of total disability from performing theduties of any sedentary job.

The Appeals Committee informed the Plaintiff of its finaldecision to uphold the denial of long term disability benefits onAugust 24, 1999.

SUMMARY JUDGMENT

Rule 56(c) Fed.R. Civ. P., which sets forth the standard forruling on summary judgment motions, in pertinent part providesthat they shall be granted "if the pleadings, depositions,answers to interrogatories, and admissions on file, together withthe affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to ajudgment as a matter of law." Sands v. Ridefilm Corp., 212 F.3d 657, 660-61(1st Cir. 2000); Barreto-Rivera v. Medina-Vargas,168 F.3d 42, 45 (1st Cir. 1999). The party seeking summary judgmentmust first demonstrate the absence of a genuine issue of materialfact in the record. DeNovellis v. Shalala, 124 F.3d 298, 306(1st Cir. 1997). A genuine issue exists if there issufficient evidence supporting the claimed factual disputes torequire a trial. Morris v. Gov't Dev. Bank of Puerto Rico,27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. Ins.Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied,511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact ismaterial if it might affect the outcome of a lawsuit under thegoverning law. Morrissey v. Boston Five Cents Sav. Bank,54 F. 3d 27, 31 (1st Cir. 1995).

In cases where the non-movant party bears the ultimate burdenof proof, he must present definite and competent evidence torebut a motion for summary judgment, Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2000); Grant's Dairy v. Comm'r of Maine Dep't of Agric.,232 F.3d 8, 14 (1st Cir. 2000), and cannot rely upon "conclusoryallegations, improbable inferences, and unsupported speculation".Lopez v. Rubianes, 230 F.3d 409, 412 (1st Cir. 2000);Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581(1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds TobaccoCo., 896 F.2d 5, 8 (1st Cir. 1990). ERISA

Standard of Review

Plaintiff claims Prudential's determination is erroneous andthat she is entitled to LTD benefits under the Policy. In supportof her allegations, Plaintiff claims that: (1) she suffered fromvarious medical conditions which allegedly limited her ability towork; (2) Prudential failed to make an adequate residualfunctional capacity assessment, taking into consideration theopinions of Plaintiff's treating physicians; (3) Prudentialfailed to evaluate the vocational factors that allegedly showedthat Plaintiff was unable to perform any type of employment inthe national economy; and (4) the opinions of her treatingphysicians were not given sufficient weight.

As a preliminary matter we must determine which standard thecourt will apply in reviewing Prudential's decision todiscontinue the benefits. Defendant argues that Plaintiff isbound to the "arbitrary and capricious standard" consistentlyused by her since the onset of this litigation. Plaintiffspecifically adopted this standard in her allegations in thecomplaint,2 in her legal theory portion of the Joint Initial Scheduling ConferenceMemorandum,3 and stipulated thereto at the InitialScheduling Conference.4

The court agrees with Prudential's argument that stipulationsmade during judicial proceedings are binding and that ordinarilycounsel may not disregard them at will. The court, however, mayrelieve parties from erroneous stipulations to prevent manifestinjustice. Further, "[r]elief from erroneous stipulations isespecially favored where the mistake made concerns a legalconclusion." ITT Federal Credit Union v. DelBonis, 72 F.2d 921,928 (1st Cir. 1995).

In this particular case not only does the stipulation pertainto a legal matter, i.e., the applicable standard of judicialreview, but it also concerns the rights of a specially vulnerablePlaintiff. Accordingly, we will not bind Plaintiff to theaforementioned stipulation. Rather, we shall peruse the pertinentdocuments to ascertain whether the denial of benefits should beexamined under the arbitrary and capricious standard or under ade novo review.

ERISA does not specify the standard to be used by the courts inreviewing denial of benefits. However, the United States SupremeCourt in addressing this matter has ruled that "a denial ofbenefits challenged under Section 502(a)(1)(B) of ERISA is to be reviewedunder a de novo standard unless the benefit plan gives theadministrator, or fiduciary, discretionary authority to determineeligibility for benefits or to construe the terms of the plan."Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,109 S.Ct. 948, 950, 103 L.Ed.2d 80, 95 (1989); Rush Prudential HMO,Inc. v. Moran, 536 U.S. 355, 122 S.Ct. 2151, 2170,153 L.Ed.2d 375 (2002).

The First Circuit Court of Appeals has consistently followedFirestone directing de novo review of benefit determinationsunless the benefit plan grants discretionary authority to theadministrator or fiduciary. See Campbell v. BankBoston, N.A.,327 F.3d 1, 6-7 (1st Cir. 2003); Cook v. Liberty LifeAssurance Co. of Boston, 320 F.3d 11, 18 (1st Cir. 2003);Brigham v. Sun Life of Canada, 317 F.3d 72, 80 (1st Cir.2003); Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.1998).

Thus, de novo review is the default standard unless the planspecifically allows for discretionary authority. RushPrudential, 536 U.S. at 386, 122 S.Ct. at 2170,153 L.Ed.2d at 402; Brigham, 317 F.3d at 80; Terry v. Bayer Corp.,145 F.3d at 37; McLaughlin v. The Prudential Life Ins. Co. of America,319 F.Supp.2d 115, 124 (D.Mass. 2004).

Further, it is the plan administrator's burden to establishthat the arbitrary and capricious review standard applies. Fayv. Oxford Health Plan, 287 F.3d 96, 104 (2nd Cir. 2002); Kinstler v.First Reliance Standard Life Ins. Co., 181 F.3d 243, 249(2nd Cir. 1999).

If the administrator or fiduciary is given discretion todetermine eligibility of benefits or to construe the terms of theplan the "arbitrary and capricious" standard will be applied inwhich case coverage decisions will be reviewed with a degree ofdeference to the administrator. Kolling v. Am. Power ConversionCorp., 347 F.3d 11, 13 (1st Cir. 2003); Lopes v. Metro.Life Ins. Co., 332 F.3d 1, 4 (1st Cir. 2003); Brigham,317 F.3d at 81. Where the discretionary grant is found, "Firestoneand its progeny mandate a deferential arbitrary and capriciousstandard of judicial review." Recupero v. New England Tel. andTel. Co., 118 F.3d 820, 827 (1st Cir. 1997) (internalquotations omitted); Pari-Fasano v. ITT Hartford Life andAccident Ins. Co., 230 F.3d 415, 418 (1st Cir. 2000); Terryv. Bayer Corp., 145 F.3d at 37.

On arbitrary and capricious review, [the administrator's]decision will be upheld if the denial is reasonable and supportedby substantial evidence." Glista v. Unum Life Ins. Co. ofAmerica, 378 F.3d 113, 126 (1st Cir. 2004); "Evidence issubstantial if it is reasonably sufficient to support aconclusion, and the existence of contrary evidence does not, initself, make the administrator's decision arbitrary." Gannon v.Metro. Life Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004)."[T]he proper standard for reviewing the decision of an insurerthat has such discretionary authority is the arbitrary and capricious standard, but . . . `the reasonableness of theinsurer's decision determines whether or not it constituted anabuse of the discretion vested in the insurer by the plan".Dandurand v. Unum Life Ins. Co. of America, 284 F.3d 331, 335-6(1st Cir. 2002) (citing Pari-Fasano, 230 F.3d at 418); seealso, Lopes, 332 F.3d at 6; Cook, 320 F.3d at 19.

On the other hand, in applying a de novo standard the courtwill examine whether the determination was incorrect or mistakenas opposed to unreasonable. Herzberger v. Standard Ins. Co.,205 F.3d 327 (7th Cir. 2000); Black v. Unum Life Ins. Co. ofAmerica, 324 F.Supp.2d 206, 210 (D.Me. 2004); Deal v.Prudential Ins. Co. of America, 222 F.Supp.2d 1067, 1070 (N.D.Ill. 2002). De novo review "allows the court to substitute itsdecision for that of the plan administrator." Kathryn J. Kennedy,Judicial Standard of Review in ERISA Benefit Claim Cases, 50 Am.U.L. Rev. 1083, 1084 (June, 2001). In making a de novo review thecourt's role is to ascertain whether the decision was correct.

The Language

In some cases the discretion conferred upon the administratoris readily apparent from the policy language. However, in othersituations discretion is not evident from the policy terms andthe court's determination is more difficult. "While the choice ofstandards is clear-cut, there remains considerable debate overwhat language constitutes a sufficiently clear grant ofdiscretionary authority to transform judicial review from de novo todeferential." Brigham, 317 F.3d at 81.

The courts recognize that "there are no `magic words'determining the scope of judicial review of decisions to denybenefits." Id. (citing Herzberger, 205 F.3d at 331).Documents providing that "[t]he Plan administrator and other Planfiduciaries shall have discretionary authority to interpret theterms of the Plan [and that] [a]ny interpretation ordetermination made pursuant to such discretionary authority shallbe given full force and effect, unless . . . [it] was arbitraryor capricious" have been found sufficient to allow specific grantof discretion. Lopes, 332 F.3d at 4 n. 5. Authority to"construe the terms of [the] policy and to determine benefiteligibility [thereunder]" have also been held sufficient to allowfor discretion. Cook, 320 F.3d at 19. Wording providing for asubjective assessment, i.e., that the evidence submitted besatisfactory to the insurer or the administrator has beenconsidered a sufficient grant of discretionary authority.Brigham, 317 F.3d at 81.

On the other hand, a policy provision that insurer would paybenefits when "it receives due proof" that plan conditions aremet is not sufficient. Rivera v. Cornell Univ.,297 F.Supp.2d 412 (D.P.R. 2003). Based on the foregoing, the specific Plan provisions must beexamined in order to ascertain whether or not Prudential5was granted sufficient discretionary authority to trigger thearbitrary and capricious standard of review.

Prudential cited the following segment of the Plan as evidenceof its discretionary authority:6

Section 6.4 Notice of Claim: . . . Prudential must be given written notice that a claim will be made. The notice must be given to Prudential within 30 days. . . . Section 6.5 Proof of Loss: Prudential must be given written proof of loss. . . . Section 6.6 Physical Exam: Prudential, at its own expense, has the right to examine the person whose loss is the basis of claim. Prudential may do this when and as often as is reasonable while the claim is pending.

We find that the aforementioned provisions do not denote anydegree of discretion in the interpretation or evaluation of theclaim. Rather, Prudential's role thereunder is limited to theministerial function of receiving and processing the notice ofclaim and proof of loss and submitting claimant to medicalevaluations.

Additionally Prudential argues that the section copied belowdenotes discretion because it suggests "that an employee'sstatements must persuade Prudential that such employee is coveredunder the Plan and, therefore, entitled to benefits [] and . . .that an employee's statements can be used by Prudential tocontest such employee's coverage."7

Section 6.8 Incontestability of Coverage to which the claim Rules Apply This limits proof of loss is required. (sic) Prudential's use of the Employee's statements in contesting an amount of coverage for which the Employee is covered. These are statements made to persuade Prudential to effect an amount of coverage. The statements will be considered to be made to the best of the Employee's knowledge and belief. These rules apply to each statement: (1) it will not be used in a contest to avoid or reduce the amount of coverage unless: . . . . (2) It will not be used in the contest after that amount of insurance has been in force, before the contest, for at least two years during the lifetime of the Employee.

However, this particular section merely restricts Prudential'sability to use an employee's statements submitted in contestingthe amount of coverage. It does not denote discretion nor raiseto the specificity level required by Firestone and its progeny.

The Policy terms fare no better. No specific degree of evidenceor standard of subjective evaluation is mentioned in thedocuments before us. The Policy merely provides the definition ofthe long term disability for coverage purposes.

Thus, based on the foregoing, even though we agree withPrudential that no "magic words" are required to denotediscretion the cases have consistently mandated language whichcategorically suggests the administrator's freedom ofinterpretation of the relevant plan provisions.

Further, we must bear in mind that because these documents areredacted by employers and insurers they have the opportunity toclearly make their intention known through unequivocal and categorical language. See, Giannone v. Metro. Life Ins. Co.,311 F.Supp.2d 168, 174 (D. Mass. 2004) ("Despite the holding ofFirestone Tire, plan sponsors have been unaccountably loath toamend their plans to make the delegation of discretionaryauthority unambiguously explicit.").

Based on the foregoing, we find that Prudential has failed tomeet its burden of establishing that the relevant Plan provisionsallow for its discretion as provided for in Firestone.Accordingly, the Court will apply a de novo standard of reviewto its denial of plaintiff's LTD benefits.

THE DECISION TO TERMINATE PLAINTIFF'S BENEFITS

The Evidence

Prudential's decision to terminate Plaintiff's long termdisability benefits under the LTD Plan and the Policy was basedon its conclusion that Plaintiff was not totally disabled toperform the duties of any job of a sedentary nature withrestrictions. Upon review of the evidence in the administrativerecord the Court finds Prudential's conclusion is the correctone.

Plaintiff had to meet the definition of "totally disabled" inorder to be entitled to continued long term disability benefitsunder the LTD Plan and the Policy. "Totally Disabled" is definedas follows: An Employee is totally disabled for the purposes of this Coverage only while satisfying both of the following requirements: (1) Due to sickness or accidental bodily injury, he (a) is completely unable to perform any and every duty pertaining to his occupation with the Employer; and (b) after the Initial Duration . . . [12 months] of a period of disability, is completely unable to engage in any and every gainful occupation for which he is reasonably fitted by education, training or experience.

As previously discussed, a person would initially be consideredtotally disabled under the LTD Plan and Policy if he or she wasunable to perform the duties of his or her own occupation withthe Employer. However, after the Initial Period of one year, aperson would only be considered totally disabled if he or shewere unable to perform the duties of any job or occupation forwhich he is reasonably fitted by education, training orexperience. The parties do not dispute that, at the timePlaintiff filed her long term disability benefits claim, she wastotally disabled to perform the duties of her own occupation. Theparties also agree that, immediately after the Initial Durationof disability, i.e., in 1996, Plaintiff was totally disabled fromperforming the duties of any job or occupation as required by theLTD Plan and Policy. However, upon a second routine review ofPlaintiff's claim, Prudential found that, beginning on August 1997, Plaintiff stopped meeting thedefinition of "Totally Disabled". Based on the medical recordscontained in the claim file, Plaintiff was found to be able toperform the duties of any job of a sedentary nature with somerestrictions.

Thus, beginning in August 1998, Prudential terminatedPlaintiff's long term disability benefits. Such decision wasconfirmed by Prudential on three different occasions afterPlaintiff requested three different reconsiderations.

Prudential's decision to terminate Plaintiff's benefits underthe LTD Plan and Policy was based on, and supported by, themedical evidence contained in Plaintiff's administrative record.Moreover, such determination — and the confirmation of the samein three different appeals — was taken after thorough evaluations(on four different occasions) of all the medical evidencecontained in Plaintiff's file as supplemented from time to timeby the Plaintiff herself during her appeals. All the medicalevidence was considered, evaluated and analyzed by Prudential andby Dr. Gale Brown, the Certified Independent Medical Examinerwho, at the request of Prudential, reviewed Plaintiff's file.These evaluations demonstrated that Plaintiff was not totallydisabled from performing the duties of any sedentary job withrestrictions for above-shoulder work.

Prudential's original and subsequent determinations to denybenefits are based on the following evidence: 1. Two of Plaintiff's treating physicians — Dr. Mundo and Dr. Cases Mayoral, provided contradicting medical opinions. Dr. Mundo stated in his letter dated August 13, 1996, that, in his opinion, Plaintiff was totally disabled for any job. However, Dr. Cases' opinion, as stated in March 14, 1996, was to the contrary. Dr. Cases' recommendation to Plaintiff was that she should avoid moderate or strenuous work, suggesting, if not asserting, that Plaintiff was capable of performing sedentary type work.

2. A Functional Capacity Evaluation performed by Dr. Rafael Seín in September 1997 demonstrated that Plaintiff had a workday tolerance of eight (8) hours. The evidence demonstrates that within those eight hours, Plaintiff had tolerance to sit for four hours, stand for two hours, and walk for four hours. Plaintiff had the ability to bend/stoop, squat, climb stairs, crouch occasionally (up to 2.5 hours), and occasionally could do weight lifting activities (between 4.5 to 15.5 pounds bilaterally, with the exception of above shoulder lifting which could not be assessed). The evidence further demonstrates that Plaintiff also had the ability to occasionally do the following activities: (a) use right foot; (b) right hand-simple grasping; (c) left hand-simple grasping; (d) both hands firm grasping, (e) both hands fine grasping; and (f) perform tasks that require static neck flexion and rotation, as well as do fifteen minutes of repetitive activities, and twenty minutes per session of keyboard activities. The Court finds that the FCE unequivocally showed that Plaintiff had the ability to perform any job of a sedentary nature, with restrictions. 3. Dr. Gale Brown's review of Plaintiff's medical records contains a thorough analysis of the medical evidence available at that time regarding Plaintiff's conditions. After conducting the evaluation, Dr. Brown concluded that there was no objective basis to restrict the claimant in performing the essential job duties associated with any sedentary occupation, with restrictions on over the shoulder right arm work and static use of arms in an extended outreached position. 4. Medical opinions from Plaintiff's attending physicians (medical report by Dr. Miguel Berríos García, dated November 30, 1998, and medical report by Dr. Héctor Cases Mayoral (neurological evaluation), dated December 9, 1998), which were submitted during her first appeal, contradicted each other. Dr. Berríos' opinion was that Plaintiff was totally disabled to perform any job. However, Dr. Cases once again indicated that Plaintiff should not do any moderate or strenuous work, suggesting that she can do sedentary work. Dr. Cases also mentioned that she cannot lift more than 10-15 pounds, which means that she can, at least, lift up to 10 pounds. Dr. Cases did mention that Plaintiff had some limitations, but, overall, his opinion is consistent with ability to do sedentary type work, with some restrictions. 5. The following reports from diagnostic tests support Prudential's conclusion:8 • Normal Cervical Spine CT Scan done on March 19, 1993; • Normal Median Nerve SSEP done on April 27, 1995; • Normal EEG study done on July 14, 1995; • Negative Doppler Study of the upper extremities done on May 27, 1994; and • EMG/NCS study done on February 5, 1997 which was normal in both upper extremities. 6. The following reports from diagnostic tests, some of which were submitted by Plaintiff during her second appeal, while others were already on the administrative record, support Prudential's conclusion: • Dorsal spine x-rays 5/28/96: mild spondylotic changes and mid-dorsal levoscoliosis, otherwise normal; • Lumbosacral spine x-rays; • Electrodiagnostic test report 2/5/97: normal nerve conduction velocities in both upper extremities, normal F-waves in both upper extremities, normal right arm EMG; • Upper extremity angiogram report, 9/19/95: Normal with no change in the subclavian arterial lumen with maneuvers and normal vascular anatomy; • ENG report, 1/30/95: Normal; and • Electrodiagnostic test report, 3/11/99: calcifications of the supraspinatus with retraction of the proximal portion of the supraspinatus muscle apparently on the basis of previous muscular tear. 7. Dr. Brown's Medical File Review Addendum Report, dated May 19, 1999, prepared after evaluating the entire administrative record, including translated Spanish medical records and the medical evidence Plaintiff submitted after Dr. Brown prepared his first Medical Review supports Prudential's conclusion. Dr. Brown found that there was sufficient new objective medical evidence to support additional diagnoses of calcific tendonitis of the right shoulder, and paraspinal muscular spasm of the cervical and lumbar regions. However, he indicated that there still was no objective medical evidence that would support findings of median nerve entrapment at the wrists associated with carpal tunnel syndrome, vascular thoracic outlet syndrome, clinically significant bilateral carpal tunnel syndrome, and no objective neurologic evidence to substantiate a diagnosis of peripheral vertigo. Finally, he noted that Dr. Berríos and Dr. Mundo documented a physical capacity consistent with sedentary work with restrictions on Residual Physical Functional Capacity Assessments dated March 8, 1999, and May 5, 1999, respectively. Dr. Brown also mentioned that the Residual Physical Functional Capacity performed by Dr. Berríos rendered results that contradicted his own opinion expressed on November 30, 1998. Dr. Brown confirmed his prior opinion that Plaintiff could perform any sedentary type job with restrictions on over shoulder right arm work, static use of the arms in an extended outreached position, proper ergonomic set up to avoid postural stressors, and positional changes as needed. 8. Dr. Berríos' physical functional capacity assessment dated March 8, 1999, where it is recommended only occasional lifting and/or carrying less than 10 pounds, standing and/or walking less than 2 hours in an 8 hour work-day, position changes as needed while sitting, and a limited pushing/pulling capacity for both upper and lower extremities. 9. Dr. Mundo's physical functional capacity assessment dated May 5, 1999, where the same restrictions mentioned in number 8 above, as well as some restrictions with respect to environmental exposures. 10. ENG report (January 30, 1995), upper extremity angiogram report (September 1, 1995), and audiology evaluation (January 19, 1996), which were all within normal limits, and did not reveal any significant findings regarding Plaintiff's balance or vascular anatomy. 11. Dorsal spine x-rays taken on May 28, 1996, showing only mild spondylotic changes, and an electrodiagnostic test results from February 5, 1997, that reveal normal nerve conduction velocities in both upper extremities. 12. Electrodiagnostic test results from March 11, 1999, that again indicate normal nerve conduction, as well as possible cervical radiculopathy without nerve involvement. 13. The following medical evidence submitted by Plaintiff during her final appeal: • Medical notes from Dr. Seín dating intermittently from February 11, 1999 to July 9, 1999. On these notes, Dr. Seín indicates that Plaintiff's recent cervical spine x-rays were normal (February 11, 1999). The additional medical notes state that Plaintiff had a right-sided cervical radiculopathy at C7, and document Plaintiff's discomfort. • Normal cervical spine films (3/9/99). • A right shoulder sonogram (3/10/99) which revealed a "faint" calcification of the muscle. • Electromyography test dated March 11, 1999, which indicated normal nerve conduction and possible cervical radiculopathy without nerve involvement. • An MRI of the right shoulder, date April 29, 1999, which showed mild degenerative changes, and minimal bursitis versus tendinopathy.

Prudential concluded that these additional test results did notdocument an impairment which would prevent Plaintiff fromperforming an occupation with restrictions, i.e., not totally disabled toperform any job of a sedentary nature (such as clerical work)with restrictions. In reaching its conclusion Prudential examinednot only Dr. Brown's medical opinion, but also the medicalreports submitted by Plaintiff's own attending physicians, thediagnostic tests performed on Plaintiff, and the FunctionalCapacity Assessment performed by Dr. Seín in September 1997.

Our own examination of the administrative record before uslikewise leads us to conclude that the evidence supports afinding that Plaintiff was not totally disabled under the termsof the LTD Plan and the Policy. The LTD Plan and Policy requiredPlaintiff to be totally disabled from performing the duties ofany job for which she is reasonably fitted by education, trainingor experience. Several doctors, including Dr. Brown, Dr. Seín,and Plaintiff's own physician Dr. Cases, opined that she could dosedentary work, with restrictions. Plaintiff had a collegeeducation which provided her with sufficient skills to do anyclerical or other sedentary work. The FCE unequivocallydemonstrated that she was capable of enduring an 8-hour work day,with some restrictions. Given Plaintiff' ability to performclerical or any other type of sedentary work, with somerestrictions, and considering her college education and pastprofessional experiences, we agree that Plaintiff is fitted andable to perform any clerical or otherwise sedentary job. Residual Functional Capacity and Vocational Factors

Plaintiff argues that Prudential failed to make an adequateresidual functional capacity assessment, taking intoconsideration the opinions of Plaintiff's treatingphysicians9 and to evaluate the vocational factors thatallegedly showed that Plaintiff was unable to perform any type ofemployment in the national economy.10 These two criteriaare required elements for Social Security disability benefitsclaim. A finding of disability under the Social Security Act is notcontrolling evidence in a determination of disability benefitsunder an insured long term disability plan, Gannon,360 F.3d at 215 "except perhaps in the rare case in which the statutorycriteria are identical to the criteria set forth in the insuranceplan." Lopes, 332 F.3d at 6 n. 9 (citing Pari-Fasano,230 F.3d at 420).

Plaintiff has failed to establish the applicability of theseprovisions to a determination of long term disability benefitsunder the LTD Plan and the LTD Policy at issue in this case.Hence, entitlement to long term disability benefits under the LTDPlan and the Policy must be assessed exclusively under the termsof those two controlling documents, and not by the criteriaestablished to determine Social Security disability benefits.

Based on the foregoing, Plaintiff's arguments regarding theresidual functional capacity and vocational assessments arewithout merit.

Treating Physicians

Plaintiff further argues that the opinions of her treatingphysicians should be given additional weight because they are ina better position to assess her limitations. However, "ERISA doesnot require plan administrators or reviewing courts to accordspecial deference to the opinions of treating physicians."Gannon, 360 F.3d at 215. See also, McLaughlin,319 F.Supp.2d at 126 (no requirement that plan administrator defer toclaimant's treating physician); Giannone, 311 F.Supp.2d at 177 (no requirement that decision bebased on opinions of claimant's physicians).

Accordingly, we conclude that Prudential did not err in itsdecision to terminate Plaintiff's benefits under the Policy.

CONCLUSION

Based on the foregoing, Prudential Insurance Company ofAmerica's, Motion for Summary Judgment (docket No. 60) isGRANTED11 and the complaint filed in this case ishereby DISMISSED.12

Judgment shall be entered accordingly.

IT IS SO ORDERED.

1. See Partial Judgment, filed on September 3, 2002 (docketNo. 37).

2. In pertinent part, Plaintiff alleges that "Prudentialarbitrary, capricious and totally unsupported by the substantialevidence of record presented to Prudential at that time".Complaint ¶ 8 (emphasis in original).

3. See, Joint Initial Scheduling Memorandum pp. 13-14.(docket No. 34).

4. The ISC Minutes specifically note that "[a]ll parties . . .agree[d] on the arbitrary and capricious standard of review ofPlaintiff's claim under ERISA". (docket No. 35) p. 1.

5. Plaintiff argues that Prudential is not the PlanAdministrator because the Benefits Manual specifically designatedBRISTOL's Human Resources Senior-VicePresident as the Plan'sfiduciary and the Human Resources Vice-President as theAdministrator. However, this argument is of no consequence forpurposes of the issue presently before us. There is no disputethat Prudential acted as claims administrator in this case. Itwas Prudential who processed Plaintiff's claim, controlled thereview process, and ultimately decided on Plaintiff's long-termdisability coverage. See, i.e., Boardman v. The PrudentialIns. Co. of America, 337 F.3d 9 (1st Cir. 2003).

6. Prudential also quoted Section 4.4 Benefits for Expensesof Rehabilitation which is inapposite to the facts before usinasmuch as rehabilitation is not at issue in Plaintiff's case.

7. Prudential's Reply (docket No. 62) p. 26.

8. When Dr. Brown evaluated the results of these tests on hisMedical File Review, he determined that there was noelectrodiagnostic evidence that would confirm a diagnosis ofthoracic outlet syndrome, carpal tunnel syndrome or ongoingcervical radiculopathy.

9. Albeit it was not required to do so, Prudential did conducta functional capacity assessment of Plaintiff's condition whichtook into consideration the opinions of Plaintiff's treatingphysicians. As previously discussed, in September 1997 Prudentialrequested Plaintiff to undergo a five-hour Functional CapacityAssessment with Dr. Rafael Seín, a Physiatrist. The FCEdemonstrated that Plaintiff had the ability to work an 8-hourwork day in a sedentary job with certain restrictions. Inpreparing his FCE evaluation, Dr. Seín even reviewed Plaintiff'smedical records from her own treating physicians. Additionally,in reviewing Plaintiff's claim, Prudential took intoconsideration the Residual Functional Capacity Evaluationsperformed by three of Plaintiff's treating physicians. These wereall consistent with the FCE's conclusions: that Plaintiff canwork any job of a sedentary nature with restrictions.

10. There is no requirement under the Policy provisions that aphysician or other person ascertain which particular positionsare appropriate for a disability benefits claimant to fill.Similarly, Pari-Fasano, 230 F.3d at 420 ruled: Granted, no physician or other person proceeded to speculate or investigate and report on actual particular positions that would be appropriate for appellant to fill, but in light of the medical evidence and the conclusions of the reviewing physicians such a job-specific laundry list hardly seems necessary. Under these circumstances, we are unwilling to require the insurance company to do more than it did in this case. . . .

11. See also, Plaintiff's Opposition (docket No. 61),Prudential's Reply (docket No. 62) and Plaintiff's Sur-Reply(docket No. 63).

12. Prudential's Motion pursuant to [former] Local Rule 108.1(docket No. 59) is GRANTED. Accordingly, leave is granted tosubmit exhibits in Spanish. However, the parties are admonishedthat these documents must be translated in the event of anappeal. See, Ramos-Baez v. Bossolo-Lopez, 240 F.3d 92, 94(1st Cir. 2001) ("Court may not consider non-Englishdocuments unless a translation is provided."); see also,1st Cir. R. 30(d) ("The court will not receive documents notin the English language unless translations are furnished.").

Back to top