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August 8, 1994

AZIZA RIZK, Plaintiff,

The opinion of the court was delivered by: EDWARD R. KORMAN

 Korman, J.

 Defendant Long Term Disability Plan of the Dun & Bradstreet Corporation (the "Plan") moves for summary judgment dismissing plaintiff Aziza Rizk's claim for long term disability ("LTD") benefits under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). The Plan provides for the payment of monthly benefits to members of the Plan who become "totally disabled." "Totally disabled" is defined, for the first 180 days of disability, for 12 months thereafter, and for a one year "elimination period," as follows:

The complete inability of a member as a result of illness, accident, pregnancy, childbirth and related medical conditions, to perform any and every duty of his regular occupation if evidence thereof is provided to the satisfaction of [MetLife].

 Plan, p. 4. After this initial two-and-a-half year period, "totally disabled" is defined as:

the complete inability of a member as a result of illness, accident, pregnancy, childbirth and related medical conditions, to perform any and every duty of any gainful occupation for which he is reasonably fitted by training, education or experience.

 Id., pp.4-5 (emphasis supplied).

 The Plan is administered by MetLife. The decision that Ms. Rizk was not totally disabled, which MetLife rendered after paying disability benefits for five years, was affirmed by an Appeals Committee consisting of three employees of D & B. Under the terms of the Plan, the Appeals Committee has "final authority to decide conclusively" appeals of denial of benefits made by MetLife.

 The issue here is whether Ms. Rizk, who worked for over a decade as a data entry operator at D & B, sustained back injuries in two automobile accidents, the last occurring in 1985, and began receiving disability benefits in 1986, was properly deemed ineligible for LTD benefits in 1991 and 1992 under the terms of the Plan because she was no longer "totally disabled" as defined by the Plan. The benefits sought are payments of $ 751 each month. The benefits claimed for the period between the time of termination of coverage and the date of the complaint, April 5, 1993, total over $ 11,000.


 On April 4, 1986 MetLife, the administrator of the Plan, received plaintiff's first disability application based on plaintiff's back injuries in the two car crashes. MetLife later received a letter from plaintiff's physician saying plaintiff was disabled with chronic lumbosacral and cervical sprain (Record pp.("R.") 323-24, 365-66). At this time, in May 1986, plaintiff was also examined by an independent physician chosen by the plan, Dr. Davidoff, who found that plaintiff had flattening of the cervical lordosis and spasm of the paravertebral muscles of the back, but also found more "subjective than objective" disability. Nonetheless, on July 1, 1986, MetLife approved plaintiff's application for benefits.

 While it paid disability benefits, MetLife continued to receive narrative reports over the next three years from plaintiff's treating physicians, Drs. Gold, Wally and Nour, all of whom charted very little improvement in the plaintiff's condition. In August of 1989, at the request of MetLife, plaintiff was assessed by another independent examining physician, Dr. Kane. After examining the plaintiff and her medical records, Dr. Kane found little evidence of objective injury, but noted degenerative arthritic changes shown on an x-ray, and a much earlier diagnosis relating to cervical spine derangement and lower back derangement. Because the of the credible evidence of subjective pain, Dr. Kane felt that the claimant should be considered totally disabled (R. 454-5)

 More than a year later, during December of 1990, at MetLife's request, Dr. Nour, plaintiff's treating physician, supplied an updated functional capacity statement and narrative report with respect to the plaintiff's condition. Although MetLife requested an MRI, he did not supply one. Dr. Nour's statement said that Rizk had no limitation on grasping and handling, finger dexterity, and concentrated visual attention; that she could lift up to 15 pounds for 20% of the day, but could not do secretarial work because such work entails sitting. Dr. Nour noted limitations in all other functional areas, and indicated that he believed the plaintiff should be considered totally disabled (R. 508-511).

 In April of 1991, almost five years after the initial determination that plaintiff should be considered disabled, and after receiving this report, MetLife asked an "independent vocational evaluator," Crawford & Company ("C & C"), to evaluate the reports and statements of functional capacity of plaintiff's treating physicians, the reports of the independent medical examiners, and the determinations of the Social Security Administration, which had previously denied plaintiff coverage, *fn1" in order to determine whether plaintiff was totally disabled under the terms of the Plan and to identify alternative occupations for which plaintiff would be qualified based on her education, training and experience. Without meeting with plaintiff, C & C determined that plaintiff was not totally disabled from performing any gainful occupation, but rather was "capable of performing sedentary, semi-skilled occupations in the clerical areas with alternate change of position avoiding prolonged sitting"--such professions as secretary, customer complaint clerk, cashier and bank teller were suggested. C & C also recommended that a psychological exam take place to determine plaintiff's ability to work (R. 521-524). No such exam apparently ever took place.

 Doctor Nour was then sent the C & C report and was asked to supply another functional capacity report. Dr. Nour replied (whether facetiously or not is unclear) that, if an occupation existed which did not entail prolonged sitting or standing, exposure to cold, humidity, drafts or air conditioning and did not require lifting or carrying more than 10 pounds or pushing or pulling heavy objects, the plaintiff should be trained for that occupation (R. 558, 562).

 In May of 1991 Dr. Bert S. Horwitz, another independent medical examiner was hired by Metlife to give his opinion. Horwitz, who did no more than briefly examine the plaintiff and review the previously received medical materials, opined that Ms. Rizk suffered from chronic cervical and lumbosacral strain syndromes and is permanently partially disabled. Dr. Horwitz, however, found Ms. Rizk's complaints to be "in excess of her physical findings" and concluded that while she was totally disabled from performing work activities that "require sitting on a full-time basis" she could perform in "an occupation in which she could change positions on a frequent basis" (R. 539-40).

 In addition, the record indicates that an investigator, also hired by Metlife, visited and observed Ms. Rizk and found her to be "obviously disabled," stating that she "cannot bend . . . walks very slowly, seats herself very slowly and is in obvious discomfort and pain." (R. 544). Nonetheless, on September 23, 1991, MetLife terminated plaintiff's LTD benefits, relying on Dr. Nour as well as on Dr. Horwitz's opinion who "both . . . indicated that you could work at an occupation where you could frequently change positions," as well as on the C & C identification of alternative employment (R. 565-66).

 After this termination, with the permission of MetLife, and after a request made by plaintiff to an Appeals Committee member, (R. 590), plaintiff forwarded an additional physician's statement of functional capacity from her treating physician, Dr. Nour (R. 572-4). That report, which was made in November 1991, describes her as "totally disabled." Dr. Nour also indicated in this report that he did not believe there was a psychological overlay on plaintiff's condition. Rather, Dr. Nour stated that the plaintiff was depressed because of her physical disability, and indicated that he would not object to a psychological exam. C & C then reassessed its prior evaluation. While noting Dr. Nour's additional diagnosis of ...

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