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January 27, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff Carol Cook, a former employee of the New York Times Company ("NYT"), brings the present action against the New York Times Company Group Long Term Disability Plan ("LTD Plan" or "the Plan"), pursuant to § 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), challenging the denial of her claim for long term disability benefits. Cook, who claims to suffer from Chronic Fatigue Syndrome ("CFS"), seeks the full amount of long term disability ("LTD") benefits under the terms of the Plan (plus interest), a declaration that she is entitled to such benefits in the future as required by the LTD Plan, and attorney's fees and costs. (Compl. ¶¶ A-D.). Defendant and Cook now cross-move for summary judgment. Page 2

  For the reasons discussed below, the defendant's motion for summary judgment will be denied and its determination vacated. Plaintiff's cross-motion for summary judgment will be granted and the case remanded to the Plan Administrator for reconsideration.


  Because a more detailed description of the evidence presented and rulings made with — respect to plaintiff's claim is given below, this section will provide only the procedural history of her appeals process.

  Cook began working for the NYT in September 1987 as an administrator on the NYT's Financial and Systems Transformation Team. In April 1997 she left work, claiming benefits a month later under the LTD Plan. In her benefits application, Cook complained of fatigue, migraines, muscle pain, memory problems, panic attacks, visual blurring and sleep problems, submitting supporting diagnoses of CFS from her treating physicians, Drs. Susan Levine and Alan Ditchek. (Ex. E.)*fn1 MetLife, the third-party Claims Administrator for the LTD Plan, referred her claim to an outside consultant, Network Medical Review ("NMR"), whose reviewing physician, Dr. Robert L. Bertrand, determined that she did not meet the Plan's definition of total disability. MetLife informed plaintiff by letter dated October 16, 1997, that it had denied her claim. (Ex. G.)

  Cook appealed this determination on November 14, 1997, submitting an additional statement from Dr. Levine. (Ex. H.) Her appeal was once again referred to NMR, where it was reviewed by Dr. Robert D. Petrie. In an internal memorandum to MetLife, Dr. Petrie affirmed Page 3

  Dr. Bertrand's assessment. MetLife then informed plaintiff of the denial in a more detailed letter dated January 12, 1998. (Ex. J.)

  Cook filed a second appeal in early 1998 before the NYT's ERISA Management Committee ("EMC" or "the Administrator"). Her file was again sent to MetLife, which reviewed the additional documentation she provided. At the request of the EMC, she also underwent a. Functional Capacity Evaluation test (Ex. L-M), and was subjected to surveillance. (Ex. Q.) Dr. Petrie of NMR once again reviewed plaintiff's entire file, and affirmed his prior findings that plaintiff was not totally disabled. (Ex. N.) Her file was also reviewed by EPRO, an independent medical consulting company, which concluded in an internal letter to the EMC dated June 11, 1998, that there was insufficient documentation to support her claims of total disability. (Ex. P.) The EMC met on July 9, 1998, and upheld MetLife's denial. Cook was informed of the committee's decision in a brief letter dated July 21, 1998. (Ex. S.)

  Cook then retained counsel and filed yet another appeal to the EMC in November 1998; while the appeal was pending, she requested a copy of her entire file. (Ex. T-U.) Cook was informed by letter dated January 13, 2000, that the information she had submitted would be reconsidered by the EMC upon completion of an independent review. (Ex. V.) IPRO again had its physician consultant review her file and, in a January 28 letter to MetLife, upheld the results of its previous review. (Ex. W.) MetLife then informed the NYT EMC that no new information had been provided that altered its prior determination. (Ex. X.) The legal department of the NYT reviewed her record and recommended that her claim be denied. (Ex. Y.) At a meeting of the EMC, this recommendation was adopted (Ex. Z); Cook was then informed of the committee's decision by letter dated June 27, 2000. (Ex. AA.) Cook filed one further appeal in Page 4 July 2001 (Rasin Supplemental Aff. Ex. 2), which was never taken up by the Administrator. In November of 2002, she filed the current lawsuit.


 I. Standard of Review

  The default standard of review in ERISA cases is de novo, Firestone Tire & Rubber Co. v. Burch 489 U.S. 101, 115 (1989). However, ERISA defendants may receive the more deferential "arbitrary and capricious" review where the benefit plan in question delegates authority to the plan administrator. Id. Even where such delegation has been made, however, the de novo standard is restored where the administrator is determined to have operated under a conflict of interest. Sullivan v. LTV Aerospace and Defense Co., 82 F.3d 1251, 1255-56 (2d Cir. 1996); Pagan v. NYNEX Pension Plan, 52 F.3d 438, 443 (2d Cir. 1995). The administrator bears the burden of proving that the arbitrary and capricious standard should apply. Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999); Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir. 1995). Any ambiguities in the plan language must be construed against the administrator and in favor of the party seeking judicial review. Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir. 2002); Kinstler, 181 F.3d at 251-52.

  Plaintiff argues that the Administrator's denial of benefits requires de novo review on grounds of both conflict and lack of delegation of authority. First, while she concedes that the language of the LTD Plan delegates authority to the EMC to interpret the Plan's terms, she argues that it does not delegate authority to make determinations as to individuals' eligibility for benefits. (P. Opp. at 3-5.) Second, she argues that the EMC is a conflicted administrator because it is comprised entirely of top executives of the NYT, and pays all benefits out of NYT coffers. Page 5 (Id. at 8.) Defendant contests both of these grounds, arguing that arbitrary and capricious review is the appropriate standard.

  The defendant is correct on both fronts. The LTD Plan itself provides that "a determination by the [EMC] as to the interpretation and application of the Plan in any particular case shall be conclusive with respect to all interested parties and such action shall not be subject to review." The "Summary Plan Description" ("SPD"), under the section "Claim Denial and Appeal," further specifies that "[t]he ERISA Management Committee has the exclusive right to interpret the provisions of the Plan, and, therefore, its decision is conclusive and binding." (Ex. B at 15.) The Administrative Service Agreement between EMC and MetLife in turn delegates to MetLife the authority to determine eligibility for disability benefits. (Ex. C at 6.) The Plan language represents a clear and unequivocal delegation of authority to the EMC, and through it, to MetLife, to make eligibility determinations. See Kinstler, 181 F.3d at 245.

  Plaintiff argues that the SPD's outline of this delegation of authority only grants the EMC discretionary authority to interpret Plan provisions, and not to make individual eligibility determinations. Because this limitation, she claims, conflicts with the broader grant of authority in the language of the Plan itself, the narrower SPD language should control. See Heidgerd v. Olin Corp., 906 F.2d 903, 909 (2d Cir. 1990). The argument is unpersuasive because no such conflict exists. First, it is hardly a given that the power to "interpret" implicitly excludes the power to "apply." Second, even if it were, the SPD language is situated in the context of a discussion of claim denials and appeals. It thus strains reason to argue that this passage excludes Page 6 the power to make individual eligibility determinations and limits it to strict Plan interpretation.*fn2 Viewed as a whole, the NYT LTD Plan clearly grants sufficient authority to the Administrator over both Plan interpretation and eligibility determinations to warrant deferential review.

  Plaintiff next argues that the EMC's determination as to her lack of eligibility requires de novo review because the EMC is a conflicted administrator. Plaintiff has a strong argument that a conflict exists; the fact that an administrator is in the employ of the company paying out benefits has contributed to a finding of conflict in other circumstances. See DeFelice v. American Intern. Life Assur. Co., 112 F.3d 61, 66-67 (2d Cir. 1997); Fay, 287 F.3d at 108-09. However, this fact alone is insufficient to require de novo review. Rather, plaintiff must demonstrate that the conflict actually influenced the Administrator's determination. Id.; Pulvers v. First UNUM Life Ins. Co., 210 F.3d 89, 92 (2d Cir. 2000); Sullivan, 82 F.3d at 1256. Even assuming the existence of such a conflict, then, "defendants' financial stake in the determination of plaintiff's claim does not warrant de novo review absent evidence that this conflict in fact influenced defendants' determination." Armstrong v. Liberty Mut. Life Assur. Co. of Boston, Page 7 273 F. Supp.2d 395, 403 (S.D.N.Y. 2003).*fn3 Because Cook has made no showing that the alleged conflict in fact influenced the Administrator's decision, the proper level of review remains the arbitrary and capricious standard.*fn4

 II. Review of the EMC's Determination Under Arbitrary and Capricious Standard

  Under the arbitrary and capricious or "abuse of discretion" standard, a reviewing court. may overturn a decision to deny benefits "only if it was `without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Pagan, 52 F.3d at 442, quoting Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993). Thus, an administrator's determination may not be disturbed so long as it was consistent with the plan's terms, "based on a consideration of the relevant factors" and supported "by substantial evidence." Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995). Substantial evidence means "such evidence that a reasonable Page 8 mind might accept as adequate to support the conclusion reached by the decision maker," and "requires more than a scintilla but less than a preponderance" of evidence. Id. This narrowly circumscribed scope of review prevents courts from substituting their own judgment for that of the administrator. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285 (1974); Pagan, 52 F.3d at 442.

  A. The Requirement of Objective Evidence

  Defendant argues that its decision was reasonable and based on substantial evidence, and that it is therefore entitled to summary judgment. Plaintiff responds, and some courts have agreed, that it is prima facie unreasonable to require claimants with CFS to submit objective evidence of their condition, given that it is a diagnosis of exclusion. See Cook v. Liberty Life Assurance Co., 320 F.3d 11, 21-22 (1st Cir. 2003); Hawkins v. First Union Corp. LTD Plan, 326 F.3d 914, 919 (7th Cir. 2003) (Posner, J.); Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir. 1999); Mitchell v. Eastman Kodak, 113 F.3d 433, 442, 43 (3d Cir. 1997); Sansevera v. E.I. DuPont de Nemours & Co., 859 F. Supp. 106, 113 (S.D.N.Y. 1994). Plaintiff asserts that the standard of proof that was required for proving total disability due to CFS effectively eliminated the possibility of anyone with CFS actually receiving LTD benefits, even though the condition was not explicitly excluded by the Plan's terms. (P. Mem. Opp. 14-16.)

  While plaintiff's experience with her appeal in this case certainly reveals the hazards inherent in insisting on objectivity in cases where diagnosis is difficult and subjective experience of pain and fatigue is the gravamen of the disease, it is nonetheless perfectly reasonable to require claimants to provide clinical support for their diagnoses. Although there is no "dipstick" test for CFS, a set of established criteria, such as those used by the CDC, are becoming increasingly Page 9 accepted as tools in diagnosing the condition. See Friedrich, 181 F.3d at 1112. It would not be unreasonable to require claimants to submit evidence in accordance with such requirements, provided they were so informed in any communications from their plan administrator. It is also reasonable to insist on some objective measure of claimants' capacity to work, so long as that measure is appropriate as applied to each specific condition. See Boardman v. Prudential Insurance Co., 337 F.3d 9, 16-17 & n.5 (1st Cir. 2003) (upholding plan administrator's determination where denial was based on lack of evidence of total disability, rather than of underlying diagnosis of CFS). It would be unreasonable to fail to communicate with reasonable specificity what would satisfy these requirements, especially given that CFS is a disease that is not readily identified, and that there is disagreement within the medical community about which "objective" markers serve as its indicators. See id. But an insistence on objective evidence, standing alone, is not arbitrary and capricious.

  In a similar vein, plaintiff argues that NMR and IPRO's reviewing physicians were biased against the condition's legitimacy. Indeed, the record indicates that those doctors who reviewed plaintiff's file were profoundly skeptical not only of her diagnosis, but of the power of the disease ever to render someone totally disabled such that they would qualify for LTD benefits.*fn5 Page 10 This view, however, it is also insufficient to render the Administrator's determination arbitrary and capricious. Medical skepticism on the part of the Administrator's reviewing physicians as to her diagnosis or its debilitating effects would not render its determination arbitrary and capricious, unless the record were clear that there was no possibility that a claimant could in fact demonstrate total disability from CFS under the criteria relied upon. So long as the determination is reasonable and based on substantial evidence, it may not be overturned.*fn6

  As the following discussion demonstrates, the Administrator's determination was indeed based on legitimate deficiencies in Cook's application and subsequent appeals. However, this alone does not resolve the case; those deficiencies were themselves in part a result of the Administrator's failure to afford Cook a fair review of her initial claim once it was denied. The outcome of the case thus hinges on a procedural matter: ERISA's requirement that plan administrators provide claimants with a full and fair appeals process that allows them a meaningful opportunity to correct any deficiencies in their claims. Page 11

  B. Notice Requirements Under ERISA

  ERISA requires that plans must "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant." 29 U.S.C. § 1133. In addition, plan procedures must "afford a reasonable opportunity . . . for a full and fair review" of denials. Id. As the Second Circuit has explained, the purpose of these requirements is twofold: "First, notice can provide the member with information necessary for him or her to know what he or she must do to obtain the benefit. Second, if the HMO persists in its ...

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