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October 7, 1994

LAURA OWENS, Plaintiff,

The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge


 I. Introduction.

 This action was originally commenced in New York State Supreme Court, Oneida County. The complaint alleges a cause of action for breach of contract under state law. It is alleged that defendant's denial of claims for benefits under a Long Term Disability Insurance policy was unjustified and in bad faith. On July 19, 1993, the action was removed to this court pursuant to the provisions of Title 28 U.S.C. §§ 1331, 1441, and 1445. Specifically, it was removed on the grounds that the action arose under the Employee Retirement Insurance Security Act ("ERISA"), Title 29 U.S.C. § 1001 et. seq. Plaintiff never amended her complaint to allege an ERISA cause of action, and the time to amend has expired.

 Defendant moves for summary judgment pursuant to Federal Rules of Civil Procedure 56(b) on two grounds: (1) plaintiff's breach of contract cause of action is preempted by ERISA; and (2) defendant's denial of benefits was not arbitrary or capricious. In support of the motion, defendant submits affidavits, Rule 10(j) Statement and memorandum of law. Attached to the affidavits as exhibits are the documents that the defendant relied on to deny benefits to the plaintiff. In opposition, plaintiff submitted her own affidavit which also includes rather voluminous medical reports, many if not all of which were submitted to the defendant in support of her claim for benefits. Plaintiff did not submit a Rule 10(j) statement or a memorandum of law.

 II. Summary Judgment Standard.

 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion." Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). In other words, a motion for summary judgment shall be granted only "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact," Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991), and the evidence is such that a "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 "In determining how a reasonable jury would decide, the court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. The court's function "is not . . . to weigh the evidence and determine the truth of the matter," Liberty Lobby, 477 U.S. at 249, but "to determine whether there does indeed exist a genuine issue for trial." Id.

 III. Facts.

 On May 27, 1991, plaintiff, Laura Owens ("Owens"), was injured in an automobile accident. As a result of the accident, she received injuries to her back and right knee. On December 9, 1991, Owens completed a Statement of Claim, seeking disability benefits under Amcena Corporation's employee welfare benefit plan ("Plan") which is insured by defendant, Metropolitan Life Insurance Company ("MetLife"). To be eligible for Long Term Disability benefits under this Plan, Owens must require the regular care and attendance of a doctor, and (1) be completely and continuously unable to perform each of the material duties of her regular job; or (2) suffer a 50% loss of earnings capacity.

 Prior to the accident, Owens had been working 40 hrs/wk and earning $ 20,000/yr with full benefits as a retail group manager for Steinbach. According to Owens, her attending physicians, and her physical therapist, she was diagnosed as being disabled and not able to resume working full time until June 14, 1993.

 The medical records gathered by MetLife pursuant to information provided by Owens were submitted for review to independent reviewing physicians, the Underwriting Medical Actuarial Consultants ("UMAC"). In a report dated July 2, 1992, it was the opinion of these consultants that the medical records lacked objective medical evidence of physical disorders that could cause a disability. On July 20, 1992, MetLife forwarded the reviewing physicians' report to Warren T. Rinehart, M.D. (Owens' personal orthopedic physician), to enable Dr. Rinehart to comment upon the reviewers' findings and to submit additional medical evidence as would demonstrate a disability. Dr. Rinehart replied with a letter dated August 11, 1992, stating, among other things, that he disagreed with UMAC's report. No additional medical evidence was submitted by Dr. Rinehart. In a letter dated August 25, 1992, MetLife denied Owens' claim for disability-benefits.

 On September 25, 1992, Owens wrote to MetLife requesting review of the denial of her claim. On November 23, 1992, MetLife received a copy of Dr. Rinehart's instructions that Owens should consult a physical therapist for "strengthening" and "work conditioning," accompanied by a Functional Capacity Evaluation performed by Patricia Dispirito, P.T. Ms. Dispirito's conclusion was that Owens "is unable to work at this time." Having considered this information, MetLife advised Owens by letter dated ...

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