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United States District Court, S.D. New York

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 denial, notice can enable the member effectively to protest that decision." Juliano v. Health Maintenance Organization of New Jersey. Inc., 221 F.3d 279, 287 (2d Cir. 2000).

  In furtherance of these mandates, Department of Labor regulations require that plans must provide claimants with written notification of claim denials including the following information:

(i) The specific reason or reasons for the adverse determination;
(ii) Reference to the specific plan provisions on which the determination is based;
(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary.
29 C.F.R. § 2650, 503-1(g). The regulations further require that in the case of a plan providing disability benefits,

  [i]f an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination, [the notification shall set forth] either the specific rule, guideline, protocol, or other similar criterion; or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of such rule, guideline, protocol, or other criterion will be provided free of charge to the claimant upon request. Page 12

 29 C.F.R. § 2650.503-1(g)(v). The regulations provide for similar notification requirements in the case of adverse determinations resulting from the appeals process, and in addition, require notification that the claimant "is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits . . . [a] statement describing any voluntary appeal procedures offered by the. plan and the claimant's right to obtain the information about such procedures . . . and a statement of the claimant's right to bring an action under section 502(a) of [ERISA]." 29 C.F.R. § 2650.503-1(j)(3), (j)(4). The regulations specify that claims procedures for a plan "will be deemed to be reasonable only if [they] comply" with these requirements. 29 C.F.R. § 2650.503-1(b)(1).

  Nonetheless, the Second Circuit has indicated that "substantial compliance" with the regulations may suffice to meet § 1133's mandate of full and fair review, even when an individual communication from the administrator does not strictly meet those requirements. See Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 107-09 (2d Cir. 2003) (where notice of denial failed to meet substantial compliance with ERISA and its regulations, time-bar provision for appeals was not triggered). Several other circuit courts, as well as district courts in this Circuit, have adopted this standard explicitly. See Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 808 (6th Cir. 1996); Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 127 (4th Cir. 1994); Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 690 (7th Cir. 1992); Davidson v. Prudential Ins. Co. of America, 953 F.2d 1093, 1096 (8th Cir. 1992); Diagnostic Medical Associates, M.D., P.C. v. Guardian Life Ins. Co., 157 F. Supp.2d 292, 299 (S.D.N.Y. 2001); Crocco v. Xerox Corp., 956 F. Supp. 129, 142-43 (D. Conn. 1997), aff'd in part and rev'd Page 13 in part on other grounds, Crocco v. Xerox Corp., 137 F.3d 105, 108 (2d Cir. 1998). Substantial compliance means that the beneficiary was "supplied with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review." Halpin, 962 F.2d at 690. The existence of substantial compliance should be determined in light of the core requirements of a full and fair review, which include "knowing what evidence the decision-maker relied upon, having an opportunity to address the accuracy and reliability of that evidence, and having the decision-maker consider the evidence presented by both parties prior to reaching and rendering his decision." Brown v. Retirement Comm. of Briggs & Stratton Retirement Plan, 797 F.2d 521, 534 (7th Cir. 1986).

  The more flexible application of these regulatory requirements does not indicate that courts do not take them seriously; it merely means that the spirit rather than the letter of the requirements governs. As the Ninth Circuit has remarked, "[i]n simple English, what this regulation calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries." Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). Violation of ERISA and its implementing regulations has been held to constitute "a significant error on a question of law," VanderKlok v. Provident Life and Ace. Ins. Co., Inc., 956 F.2d 610, 616 (6th Cir. 1992); Omara v. Local 32B-32-J Health Fund, No. 97 Civ. 7538, 1999 WL 184114, at * 4 (E.D.N.Y. March 30, 1999), and may "sufficiently taint [the fiduciary's] denial of [benefits] so as to warrant a finding that [the denial] was arbitrary and capricious." Veilleux v. Atochem North America, Inc., 929 F.2d 74, 76 (2d Cir. 1991); see also Burke, 336 F.3d at 109 (inadequacy of denial notice estopped defendant from raising time-bar provision in plan terms as a defense); Veltri v. Building Service 32B-J Pension Fund, No. 02 Civ. 4200. 2003 WL Page 14 22705124, at *4 (S.D.N.Y. Nov. 17, 2003) (same); Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 328-29 (2d Cir. 1985) (although employer was not estopped from raising preemption as a defense to ERISA suit, district court could determine "whether employer's violations sufficiently tainted its denial of severance pay so as to warrant finding that it was arbitrary and capricious").

  Plaintiff argues that the EMC failed to afford her a full and fair review of her claim because at each point in the appeals process at which her claim was denied, the EMC failed to provide her with adequate notice as to the reasons for the denial, and as to what would be required to cure the defect in her application. (P. Mem. Opp. 16-17.) This failure, she asserts, violated ERISA and its implementing regulations, thereby rendering the resulting determination arbitrary and capricious. Defendant responds first that it provided plaintiff full and fair review because it considered each of her appeals fully, granted her more appeals than were required under the Plan's terms, and provided her with "independent" review by several doctors. (D. Mem. 18-19.) Neither the number of opportunities defendant gave her for her appeal nor the purported independence of its doctors is relevant to the issue of whether plaintiff was ever provided with information sufficient to afford her a meaningful opportunity to perfect her claim. A plan administrator may provide a claimant with endless reviews by independent specialists, but unless the claimant is informed of the claim's defects, she is likely to be no better off than she was when she first applied.

  Thus, determining whether the EMC complied with ERISA and its implementing regulations is necessarily a multi-step, fact-intensive inquiry. See Halpin, 962 F.2d at 690. The focus is not solely on the number or quality of appeals entertained, but also on what the EMC Page 15 communicated to the plaintiff in the letters informing her of the denials. Moreover, even where the denial letters provide some information, the inquiry does not end. The adequacy of the notice provided must be judged in the context of the determination that follows it, for the administrator's response to the subsequent appeal is relevant to whether the claimant was in fact given sufficient notice in the denial letter from which she appealed as to what information would be necessary to perfect her claim. In sum, in order to evaluate the adequacy of notice in an internal ERISA appeal, a reviewing court must look first to what information is communicated to the claimant in the denial of the claim or appeal in question, and to what information the claimant submits in response. Then, it must determine whether the subsequent denial of the appeal is consistent with the rationale given in the first denial notice, representing a fair evaluation that the appeal is still insufficient, or whether it impermissibly relies upon additional factors that were never communicated to the claimant. Accordingly, each of plaintiff s claims/appeals and defendant's subsequent determinations will be considered in turn in light of ERISA's requirements.

  C. Analysis of the Appeals Process

  1. Plaintiff's Initial Application

  In her initial application for LTD benefits, Cook submitted two statements from her treating physicians, Drs. Susan Levine and Alan Ditchek, which included their diagnoses of CFS and a description of the evidence on which they based their diagnoses. Both recommended that she not return to work, in light of her "severe fatigue"; Dr. Ditchek estimated that she would be able to work a maximum of two hours a day, while Dr. Levine estimated that she would not be able to work at all. (Ex. E.) In addition, Cook submitted notes from Dr. Levine documenting her Page 16 symptoms over a three-month period. The notes described, among other symptoms, sore throat, lymph node swelling, muscle and joint aches, visual blurring, and "evidence of deconditioning throughout," and commented that Cook "has had extensive blood work to exclude other disorders, such as Lyme, Lupus, [and] Diabetes." (Id.)

  MetLife, the Claims Administrator for the LTD Plan, referred her claim to an outside consultant, NMR. Dr. Bertrand, NMR's specialist in occupational medicine, reviewed her application, and in a memorandum to MetLife, concluded that she had failed to provide "the necessary workup including psychological testing and the elicitation of a history which would include psychological and socioeconomic conditions at the time of her onset of fatigue." (Ex. F.) Dr. Bertrand's memo specifically listed CDC criteria used in diagnosing CFS that were insufficiently addressed in her file, and referenced the article in the Annals of Internal Medicine in which these criteria were published. (See Ex. F, citing Fukuda K. Straus et al, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine, 953-59 (1994).) The memo quoted this article extensively, explaining that:

The following areas should be included in the clinical evaluation.
1) A thorough history that covers medical and psychosocial circumstances at the onset of fatigue; depression or other psychiatric disorders; episodes of medically unexplained symptoms; alcohol or other substance abuse; and current use of prescription and over-the-counter medications and food supplements.
  2) A mental status examination to identify abnormalities in mood, intellectual function, memory, and personality. Particular attention should be directed toward current symptoms of depressive or anxiety, self-destructive thoughts, and observable signs such as psychomotor retardation. Evidence of a psychiatric or neurologic Page 17 disorder requires that an appropriate psychiatric, psychological, or neurologic evaluation be done.

  3) A thorough physical examination.


4) A minimum battery of laboratory screening tests including complete blood count with leukocyte differential; erythrocyte sedimentation rate; serum levels of alanine aminotransferase, total protein, albumin, globulin, alkaline phosphatase, calcium, phosphorus, glucose, blood urea nitrogen, electrolytes, and creatinine; determination of thyroid-stimulating hormone; and urinalysis.

  There is no indication in the record, however, that this letter was ever sent to Cook. Instead, MetLife simply informed plaintiff by letter dated October 16, 1997, that it had denied her claim based on "insufficient evidence to support a diagnosis of CFS." (Ex. G.) The letter informed her that her file had been reviewed by a consulting physician who had concluded that "there was no evidence to support a diagnosis of chronic fatigue syndrome." (Id.) The only specific reason provided for the denial was that there was "no indication of enlargement of the spleen on palpation and motor strength was reported normal." In addition, the letter noted that her file contained "no mental status examinations to support cognitive problems or memory deficits." With respect to the CDC criteria mentioned in Dr. Bertrand's internal memo, the letter merely stated, "[t]here is [sic] specific criteria, outlined by the CDC . . . that must be met in order to support a diagnosis of CFS." It did not outline those criteria, or direct her to where she might find them.

  2. Plaintiff's First Appeal

  In her first appeal, plaintiff submitted a further letter from Dr. Levine, describing more fully her symptoms and medical history. (Ex. H.) It included a long description of the results of Page 18 a physical examination performed on November 11, 1997. These results included muscle tenderness, limited flexibility, pain in various areas on palpation, extreme weakness, and "some loss of motor strength of both lower extremities." (Id.) Dr. Levine indicated that laboratory results showed "a normal thyroid, a negative autoimmune workup, positive previous exposure to Herman Herpes Virus 6, an agent thought to be causative of CFS, and Fibromyalgia, as well as a positive tilt table test, indicative of Neurally Mediated Hypotension, [a] condition associated with CFS and which can be extremely debilitating." It also described Ms. Cook's physical and mental capacity in detail:

Due to her severe weakness, muscle and joint aches and to her fatiguability she cannot walk more than a block and a half without stopping to rest; she cannot climb more than a flight of stairs at a time; she cannot read more than a few pages of a book at a time without pausing to re-read sentences; she cannot clean her home, go shopping, or prepare elaborate meals; she cannot travel long distances by herself due to easy confusability; and she cannot interact with other[s] for prolonged periods of time either on the phone or in person due to her cognitive difficulties.

  Plaintiff's 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 Dr. Bertrand's assessment "that Ms. Cook does not have evidence of a medical condition which precludes employment" on grounds of a lack of "objective evidence to support that Ms. Cook has cognitive impairments" and "incomplete documentation to show that all causes of fatigue have been adequately excluded." (Ex. I.) Dr. Petrie opined that "even if chronic fatigue syndrome is present," the appropriate treatment would be "a structured exercise and conditioning program, not prolonged inactivity." (Id.) Page 19

  MetLife then informed plaintiff of the denial in a letter dated January 12, 1998. (Ex. J.) The letter again referenced the CDC criteria, this time noting that they were "published in the Annals of Internal Medicine in 1994," and explained that plaintiff's file was missing "some of the key elements needed to rule out other reasons for the self reported fatigue, weakness and cognitive difficulties that are indicated in Dr. Levine's medical documentation." It proceeded to note that "the physical evaluation did not include the necessary mental status examination to identify psychomotor abnormalities. Evidence of a psychiatric or neurologic disorder requires an appropriate psychiatric, psychological, or neurological evaluation be done." It stated that "[t]he physical limitations presented in the file are self imposed based on subjective complaints of pain and fatigue. There has been no observed measurement of functionality present in the file." Finally, it asserts that "there is no evidence of muscle atrophy, muscle wasting or other signs of inactivity that would be consistent with the severity of the impairment described by you and Dr. Levine." The letter concluded that "[t]here is no evidence to support that you have any cognitive impairment that would prevent you from performing your occupation. Although you do complain of fatigue and weakness that affects your ability to perform your activities of daily living, there is not sufficient evidence to indicate that you have an impairment so severe to prevent you from performing your sedentary occupation."

  Defendant's October 16 denial letter failed to meet a number of ERISA's basic notice requirements. First, to the extent that the denial of plaintiff's first appeal was based on Cook's failure to submit evidence supporting the diagnostic criteria established by the CDC, this finding was unreasonable because defendants failed to provide her with sufficient information about the contents of those criteria. ERISA's implementing regulations require that disability denials that Page 20 rely on "an internal rule, guideline, protocol, or other similar criterion" must set forth the specific criterion relied upon, or state that a copy will be "provided free of charge to the claimant upon request." 29 C.F.R. § 2560.503-1(g)(v)(A). MetLife's adoption of the CDC criteria represents reliance on such "an internal . . . guideline, protocol, or other similar criterion," thus rendering denials on these grounds subject to the regulation's notice requirements. Although MetLife's. first denial letter referred to the existence of the CDC criteria, it failed to set forth either the criteria themselves or the required statement that they would be made available to the plaintiff free of charge. By contrast, Dr. Bertrand's internal memorandum outlined in detail what the CDC criteria require and where they were available — information that would have been easy enough to transmit to the plaintiff. A vague reference to the existence of CDC criteria, without more, does not constitute substantial compliance with the regulation's direct mandate that the actual guidelines be made available, much less ERISA's broad mandate that the information provided be transmitted "in a matter calculated to be understood by the participant." 29 U.S.C. § 1331; see also Burke, 336 F.3d at 109 (plaintiff denied full and fair review where notice was opaque and administrator "could easily have used unambiguous . . . language"); Dawes v. First Unum Life Insurance Co., No. 91 Civ. 0103, 1992 WL 350778, at * 4 (S.D.N.Y. Nov. 13, 1992) (denial letter providing some explanation still insufficient in that it "[did] not explain what data defendant requires to establish that an employee who is an alcoholic is disabled").

  Besides referencing the CDC criteria, the October 16 letter cited (1) a general lack of "evidence to support a diagnosis of CFS," (2) lack of indication of "enlargement of the spleen on palpation," and (3) lack of a "mental status examination to support cognitive problems or memory deficits." Dr. Levine's November 14 letter responded to each of these concerns. The Page 21 letter (1) clearly pointed out the specific symptoms, test results, and conditions that were related to CFS; (2) described in detail both her medical history and the results of a current physical examination, including a thorough description of various physical abnormalities and tender points on palpation, as well as loss of motor strength; and (3) contained an in-depth evaluation of plaintiff's mental capacity and cognitive difficulties. (Ex. H.) Dr. Levine's November 14 letter contained detailed descriptions of Cook's psychomotor function, psychological symptoms, and functionality. With respect to the mental status examination, each of Dr. Levine's prior submissions contained considerable evidence that she had performed such an evaluation. Her prior report also had noted that she had performed "extensive blood work to rule out other disorders." (Ex. E.) Dr. Levine's detailed letter thus responded to each of the concerns explicitly identified in MetLife's October 16 letter.*fn7

  According to MetLife's subsequent January 12 denial letter, Cook's appeal was denied because her file lacked the following information: (1) a mental status examination to identify psychomotor abnormalities; (2) a psychiatric, psychological, or neurological evaluation; (3) an "observed measurement of functionality"; and (4) evidence of muscle atrophy or wasting. First, of these four factors, none but the mental status examination was specifically mentioned in the October 16 letter. Second, these four factors are not coextensive with the CDC criteria Page 22 referenced in the initial denial letter: the only explicit overlap is the "psychiatric, psychological, or neurological evaluation." To the extent that the information in the letter did respond to the deficiencies that had been identified, the fact that Dr. Levine's findings were discounted by MetLife's reviewing physicians suggests that they were looking for more hard data, such as reports from laboratory tests or more formal diagnostic evaluations. This observation, however, is only surmise, as whatever deficiencies existed were never communicated to the plaintiff. Neither the initial claim denial nor the subsequent determination on appeal explained why these findings in either her initial statement or her subsequent lengthy and detailed appeal letter were considered insufficient. "[T]o satisfy the requirement of a description of any additional material or information necessary for the claimant to perfect the claim, the letter would have to specify the kind of additional medical information needed." Halpin, 962 F.2d at 691; see also Juliano, 221 F.3d at 288 (" Because the Julianos were not told they were being denied reimbursement for home care on the grounds that it was not `medically necessary,' they cannot be faulted for having failed to provide [the administrator] with evidence of medical necessity while they were seeking . . . reconsideration of its denial.").

  It should be emphasized that the fact that MetLife considered Dr. Levine's findings insufficient is not the problem. The Plan Administrator was perfectly entitled to evaluate the evidence submitted and find it lacking on any reasonable ground. It was not entitled to fail to provide Cook with information on why the evidence she had submitted was found deficient in the first place. Defendant not only violated ERISA's regulations by failing to set forth the CDC guidelines (or to indicate where they could be found) in its October 16 letter; it also failed more generally to provide "a description of any additional material or information necessary for the Page 23 claimant to perfect the claim and an explanation of why such material or information is necessary." 29 C.F.R. § 2560.503-1 (g)(iii). The denial of plaintiff's first appeal was based on deficiencies in plaintiff's submissions that had never been communicated to her in MetLife's initial letter, and that she had never been given the opportunity to cure. A denial of an appeal that is based on insufficient notice as to how the claim might be perfected fails to meet the requirements of ERISA and its implementing regulations, and is therefore unreasonable as a matter of law. See Halpin, 962 F.2d at 691: Juliano, 221 F.3d at 287; VanderKlok, 956 F.2d at 616, 617; Richardson v. Central States, Southeast and Southwest Areas Pension, 645 F.2d 660, 665 (8th Cir. 1981); Omara, 1999 WL 184114; Dawes, 1992 WL 350778, at * 4.

  3. Plaintiff's Second Appeal

  In response to defendant's January 12 letter, Plaintiff submitted a second appeal in January 1998.*fn8 Her appeal included additional documentation, which conformed closely to the specific additional requirements outlined in MetLife's January 12 letter. To summarize, the specific information supplied in the letter was that plaintiff's file was lacking: (1) a "mental status" examination; (2) an "appropriate psychiatric, psychological or neurologic evaluation"; (3) "observed measurement of functionality" and (4) evidence of muscle atrophy or wasting. (Ex. J.) In response, plaintiff included (1) a "Mental Impairment Evaluation Questionnaire" conducted by Dr. Anne Rosen-Noran, Ph.D.; (2) a Neuropsychological Evaluation by Dr. Laura Monserrat, Ph.D., clinical psychologist; (3) an evaluation of "Ability to do Work Related Activities" by Dr. Alan Ditchek, M.D., Cook's treating physician; (4) a Tilt Table study from Columbia — Page 24 Presbyterian Medical Center with positive results; (5) a Spect Brain Perfusion study from St. Vincent's Medical Center; and (6) a copy of the determination from the Social Security Administration that plaintiff was totally disabled and entitled to disability benefits. (Ex. K.)

  Dr. Rosen-Noran's Mental Impairment Evaluation indicated that Cook suffered from "Severe lethargy related to Chronic Fatigue Syndrome," as well as depression, Mixed Personality Disorder, and social withdrawal. The report concluded that Cook was totally disabled and unable to work, due to "a combination of physical, emotional, and mental problems that prevent functioning in a work setting." (Ex. K.) Similarly, Dr. Ditchek's evaluation of Cook's ability to do work-related activities indicated that she would have severe difficulty functioning in a work setting due to her constant need to rest, her communication difficulties and memory deficits, and her inability to sit still, walk, or move around for sustained periods of time. (Id.) Finally, Dr. Monserrat's neuropsychological evaluation noted her abnormal brain scan, and concluded:

Ms. Cook's attention, concentration, visual perceptual, visual organizational and visual memory deficits would severely limit the kind of work she could perform mentally. . . . Her physical and cognitive impairments taken together render her unable to work at all. Her psychological problems are significant but by themselves do not render her disabled. It is my professional opinion that Ms. Cook is totally disabled and unable to work in any capacity at this time and for a minimum of one year. Her deficits are consistent with a diagnosis of Chronic Fatigue Syndrome but do not rule out other contributory causes.

  In addition to reviewing the documentation Cook had provided, the EMC at this time undertook two independent investigations of her claims. First, in April 1998, the NYT requested that Cook undergo a Functional Capacity Evaluation ("FCE"), which she did on May 5, 1998. (Ex. L-M.) The result of the FCE was a finding by Dr. Larry J. Kopelman that plaintiff was Page 25 capable of performing the physical demands required by her job, and a recommendation that plaintiff return to work with certain restrictions; this finding represents the sole evidence in the record by any physician directly evaluating Cook that she would be capable of returning to work. Second, the ERISA management committee "arranged for surveillance" of Cook for four days. The surveillance did not indicate any activities "inconsistent with the employee's claim of disability." (Ex. Q.)

  After once again submitting plaintiff's file to specialists at MetLife and EPRO for review, the EMC met on July 9, 1998, and decided to uphold the denial "on the basis that all parties who reviewed the claim found no evidence to establish the diagnosis of Chronic Fatigue Syndrome or a mental impairment." Cook was informed of the committee's decision by letter dated July 21, 1998, which advised her simply that "the Committee has determined that you do not meet the Plan's definition of Totally Disabled, and that you are therefore not eligible for benefits under the Plan." (Ex. S.) This letter provided no specific reasons for the denial, nor did it include the statements required under ERISA's regulations of her right to appeal or her entitlement to all documents relevant to her claim.

  Although the January 12 denial letter on which plaintiff's second appeal was based was far more specific than the first denial notice, the ultimate determination reveals that it once more failed to comply with ERISA's notice requirements. First, although the letter repeated its reference to the CDC criteria, it again failed to include the criteria (or statement of their availability free of charge), as required under 29 C.C.R. § 2560.305-1(j)(5)(i). Second, even should the letter's more specific citation of the publication in which the CDC criteria had appeared be held to constitute substantial compliance with ERISA's regulations, the letter failed Page 26 to notify Cook that she was "entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to [her] claim for benefits." Id. § (j)(3).

  In Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir. 2003), the Second Circuit considered whether a denial based on failure to exhaust administrative remedies substantially complied with ERISA and its implementing regulations. There, the claimant's internal appeal had been rejected for failure to file a timely petition for review. The denial notice had not directly informed the claimant of the limitations period, but merely referenced the section of the employee benefits handbook stating that claimants "should" file their appeals within 90 days. The Second Circuit held that the mere reference to the handbook was insufficient, and that the letter itself should have contained the notice of appeal rights. Id. at 108. Moreover, the use of the word "should" in the handbook was "grossly uninformative": because the term "should" could be understood in this context as "precatory" rather than "mandatory," it did not amount to adequate warning to the claimant of her appeal rights or the consequences of failure to meet the filing deadline. The administrator, the Court noted, "could easily have used unambiguous language." Id. On these grounds, the Court held that the claimant had been "denied the opportunity for the full and fair review contemplated by [ERISA] and the DOL regulations." Id. at 109.

  Similarly, in this case the Administrator failed to provide adequate notice of Cook's rights with respect to her appeal. It is quite likely that, should defendant have notified Cook that her records were available to her, she could have discovered whatever deficiencies had not yet been communicated to her and taken steps to correct them. As it was, she was evidently Page 27 unaware that she had the right to access her file, as she did not request it until after she obtained counsel and filed her third appeal in November 1998. (See Ex. T.)

  These procedural requirements represent simple but important safeguards with which plan administrators must comply. The provision in ERISA's regulations requiring notice of access to relevant documents, which is specific to the section governing determinations on appeal, provides transparency, and represents the most effective means of allowing claimants the opportunity to discover "what evidence the decision-maker relied upon, [and] to address the accuracy and reliability of that evidence." Brown, 797 F.2d at 534. Compliance with the records requirement involves no individualized assessments, but rather, could be easily accomplished through the inclusion of boilerplate language; requiring closer compliance would therefore not pose undue hardship on the Administrator.

  Indeed, the internal memoranda from NMR and IPRO's reviewing physicians reveal that the denial of plaintiff's appeal was based on grounds that were never explicitly communicated to Cook, but that would have been evident had she had access to her file. For example, when her file was reviewed by IPRO's "specialist in rheumatology" (who is never identified by name in any of the reports), IPRO's Medical Director, Dr. laquinta, noted that "there is no full history and physical exam in this record." Neither the October 16 nor the January 12 denial letter mentioned that a physical examination or history was lacking, and Cook was never informed that Dr. Levine's lengthy and detailed letters outlining her medical history and the results of a physical examination did not fulfil this requirement. This point, however, was clear from Dr. Bertrand's first internal memorandum, which cited the CDC criteria at length. "[T]o satisfy the requirement of a description of any additional material or information necessary for the claimant to perfect the Page 28 claim, the letter would have to specify the kind of additional medical information needed." Halpin, 962 F.2d at 691.

  In addition, it appears that the Administrator's determination following plaintiff's appeal was once again based on grounds that had not been communicated to the plaintiff, in either the first or the second denial letter. Both Dr. Petrie's March 11 letter and Dr. Iaquinta's June 11. letter, for example, emphasized the lack of "a formal psychiatric assessment" (Ex. N); Dr. Iaquinta concluded that "there is good reason to think that undiagnosed depression and/or organic problems other than CFS are present here." Neither denial letter indicated that such a formal assessment would be required, although the January 12 letter recommended that "appropriate psychiatric, psychological, or neurological evaluation be done." (Ex. J; emphasis added.) While it might have been wiser for plaintiff to cover all her bases and submit to a psychiatric and psychological examination as well as a neurological evaluation, defendant nonetheless should have been clear if all three tests were required. It is understandable that Cook did not do so, given that both the neuropsychological test and the mental impairment examination that she had undergone squarely addressed her psychological status. Dr. Monserrat's report specifically concluded that her depression and anxiety, though significant, did not "by themselves render her disabled." Rather, she found that "feelings of isolation and alienation . . . reflect the social isolation resulting from limited social life imposed by debilitating illness" and that "psychotherapy will not result in changing her status from `disabled' to `not disabled.'" (Ex. K., Monserrat Rep. at 7; emphasis in original.) None of plaintiff's doctors had diagnosed her with "extreme psychiatric problems" of the type that would exclude a diagnosis of CFS under the Page 29 CDC guidelines;*fn9 if a particular test was nonetheless required of her, the Administrator was obligated to tell her so unequivocally. See Burke, 336 F.3d at 108.

  Similarly, with respect to the neuropsychological testing that was performed, Dr. Petrie further discredited the findings on grounds that "a valid neuropsychological evaluation depends on the patient's best effort, which will not occur with someone uncooperative [or] fatigued," and noted that "there is no indication that specific measures to assess effort such as forced memory testing were employed." It is unclear whether Dr. Petrie's comment indicates that only neuropsychological testing that follows particular protocols would be considered acceptable; if so, this might well constitute an additional violation, in that plaintiff was never notified that only certain protocols would be considered sufficient.*fn10 It may be the case, however, that any competent neuropsychological examination would include efforts to assess effort levels. The Court need make no finding on this point, as both tests the Cook underwent in fact took steps to make such an assessment. (Ex. K., Rep. of Dr. Rosen-Noran, at 3; Rep. of Dr. Monserrat at 7.) Specifically, Dr. Rosen-Noran ruled out that Cook was "a malingerer," and Dr. Monserrat's Page 30 report included findings that Cook was "consistently cooperative" and was in fact making her best efforts. As her report stated, "[Cook] appeared motivated during testing and seemed to try her best. In fact, there was an obsessive, determined quality to her approach to tasks and when she was unable to solve a problem or to perform to her satisfaction, she was evidently frustrated" (Ex. K., Monserrat Rep. at 3.) Such findings, which are stated in the strongest terms, appear to. rule out the need to conduct additional steps to assess effort. Under these circumstances, this supposed deficiency in plaintiff's record appears, at the very least, difficult to justify.

  It is impossible to determine from the letters of Drs. Petrie and Iaquinta exactly how much weight was given to each of the factors they listed, or to what extent their determinations constituted fair assessments of the value of the information plaintiff had submitted, and to what extent they relied impermissibly on deficiencies that had not been communicated to plaintiff. It is also impossible to know whether, had plaintiff known of her right to access her file, she would in fact have exercised it, or whether, had she done so, she would have been able to meet MetLife's standards. The notice of records regulation, however, is not aimed at providing such guarantees; rather, it supposes that giving claimants notice of their rights and opportunity to inspect their files will increase the likelihood that legitimate claims will prevail on appeal. Had plaintiff here known of her opportunity to learn directly of the supposed deficiencies in her file, she would undoubtedly have had a greater chance to submit additional information, which in turn might have altered the total mix of evidence in the record. This, at the very least, might have shifted the balance in her favor.*fn11 Page 31

  Just as a claims administrator may not completely conceal from a claimant its reasons for a denial of benefits, it also may not provide incomplete or misleading information. Where an ERISA appeal is denied on review, a notification is not sufficient, even when it includes some specific reasons for the denial, where it fails to provide notification of these important procedural rights. Advising claimants of the right to access and review their file is a vital component of a full and fair review. Defendant's failure in its January 12 letter to include the CDC criteria or to provide the plaintiff with access to her file, coupled with the apparent lack of congruence between the information provided to plaintiff through the appeals process and the actual grounds for the ultimate denial, constitutes a violation of ERISA's regulations that is substantial enough to invalidate its determination.

  4. Plaintiff's Third Appeal

  plaintiff's third appeal, filed on November 17, 1998, included two additional letters from her treating physicians, once again pointing to the evidence supporting their diagnoses (including that other causes of her symptoms had been ruled out), and reiterating their evaluation that she was totally disabled by CFS. The appeals process once again took its course, with her file facing review by IPRO and MetLife, both of which confirmed their earlier assessments in brief letters to the EMC. There is no need to dwell upon the substance of their internal letters, or on the reasons for the EMC's ultimate decision, because defendant's July 21 letter on which this appeal was based inherited the deficiencies of the defendant's first two denials. The July 21 letter provided no new information — in fact, it included no specific information on the reasons for the denial, Page 32 save a recitation of the finding that she was not totally disabled under the Plan terms — and it again failed to include notification of access to her file. (Ex. P.)

  It could be argued that ERISA's regulations should not apply to decisions on review after the first appeal. Defendant however, does not raise this argument, and even if it did, it would not be persuasive. First, by their language, ERISA's regulations, apply equally to all "notification[s] of benefit determination on review" and do not distinguish among levels of appeal. See 29 C.F.R. § 2560.503-1(j). Second, the requirement of a full and fair review on the first go-round should apply no less simply because an administrator grants an additional level of appeal: a second appeal that does nothing to cure the procedural deficiencies of the first will not constitute substantial compliance merely by virtue of its existence. Because the notice of denial on plaintiff's second appeal again failed to provide the required information, the denial of the third appeal equally violates ERISA.

  Defendant argues, however, that because plaintiff was provided with her case file in March of 1999, before the final determination on her third appeal in June 2000, any defect in its communications with plaintiff was thereafter cured. (D. Rep. 5-6; Rasin Supplemental Aff. Ex. 1.) But because of its timing, the provision of plaintiff's file still does not amount to compliance, substantial or otherwise, with ERISA's notice requirements. First, as previously noted, there is no evidence that defendant informed plaintiff of the right to access her file, or provided her with any information in it, at any point prior to the time she filed her November 1998 appeal.*fn12 Second, the file was not provided until over seven months after the denial of her second appeal in Page 33 July 1998, once her third appeal had already been under review for four months — a date far too remote from the actual date of the denial to serve as notice for purposes of affording her a fair opportunity for appeal. ERISA's regulations generally require plan administrators to render a determination within sixty days from receipt of the appeal, although they may request an extension provided that they give the claimant notice of the reasons for the request and of the. expected date of the decision. See 29 C.F.R. § 2560.503-1(1). There is no evidence that defendant ever requested such an extension. Thus, when Cook finally received her file in March 1999. over four months after filing her appeal, she had no reason to expect that she would have sufficient time to undergo the additional tests and submit the reports required in time for the EMC's determination, or that additional materials would even be considered, especially given the regulatory time-frame, and that each of the prior determinations had been resolved in seven months or less.*fn13 Although defendant did not in fact decide plaintiff's third appeal until June 2000. over a year and a half after it was filed, it may not use its delay as an excuse to blame plaintiff for failing to submit additional documentation during the time she was awaiting a determination. Given the 60-day regulatory time-frame, the lack of notification of the delay, and the relatively speedy resolution of all her prior claims, the provision of plaintiff's file in March of 1999 does not cure defendant's failure to provide her with the means to perfect her claim. Defendant's July 21 letter provided insufficient notice to comply with ERISA. Page 34

  D. Summary

  The substantial compliance framework leaves the question of how tightly administrators must comply with ERISA's regulations within the discretion of the courts. A holding that a violation has occurred may seem difficult to square with this flexible framework, especially where a good deal of specific information has been provided to the claimant over the course of, the appeals process. The instant case, however, demonstrates the pitfalls of too lax an approach to the regulatory guidelines. The defendant could likely have prevented this lengthy process, which was surely expensive and time-consuming for both parties, had it simply provided the plaintiff with the relevant criteria it was relying upon early in the process, or with access to her file at a time when it would have given her a meaningful opportunity to address any deficiencies. ERISA's procedural regulations "go[] to the core of the purpose of [ERISA's] notice requirements," Dawes, 1992 WL 350778, at * 5, and must be enforced such that they retain their effectiveness. See Richardson, 645 F.2d at 665 ("The statute and the regulations were intended to help claimants process their claims efficiently and fairly; they were not intended to be used by [a plan administrator] as a smoke screen to shield itself from legitimate claims."); Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998) ("We will not permit ERISA claimants denied the timely and specific explanation to which the law entitles them to be sandbagged by after-the-fact plan interpretations devised for purposes of litigation."). The EMC's failure to provide Cook with the required information as to the criteria it relied upon and the rights attendant upon appeal renders its determination so procedurally flawed as to be arbitrary and capricious. See Veilleux, 929 F.2d at 76; VanderKlok, 956 F.2d at 616; Omara, Page 35 1999 WL 184114, at * 4. In light of the foregoing analysis, defendant's determination must be vacated and its motion for summary judgment denied.

 III. Entitlement to Summary Judgment

  In addition to demanding the EMC's determination be reversed, plaintiff demands summary judgment that she is entitled to LTD benefits. Even given the finding that defendant acted arbitrarily and capriciously, neither this holding nor the record itself requires a finding that plaintiff is totally disabled as a matter of law; it merely indicates that the defendant's determination must be overturned because she was never able to obtain a full and fair review of her claim. Because disputed issues of fact remain, her motion for summary judgment entitling her to LTD benefits must be denied.

  A. The Disputed Record

  As a threshold question, the defendant has objected to various exhibits plaintiff seeks to introduce for purposes of evaluating whether she deserves summary judgment on the question of disability. This disputed evidence falls into two categories. First, plaintiff asks the Court to consider evidence submitted after the denial of her last appeal. (See Riemer Aff. Ex. 1.) The defendant objects that this evidence was not before the defendant when it rendered its determination, and that it is therefore impermissible to consider it. However, the parties specifically stipulated to the contents of the administrative record in this case, and these documents were included in the range of material covered by that stipulation. See Stipulation Page 36 and Order dated August 12, 2003. As it is related to her ultimate entitlement to benefits, it will therefore be considered.*fn14

  Second, plaintiff seeks to introduce evidence calling into question the independence and qualifications of NMR's reviewing physicians relied upon by the EMC, as well as the applicability of the FCE test in diagnosing the functional ability of people suffering from CFS. (Riemer Aff. Ex. 5-6.) With respect to the former, she points to material from NMR's website stating that NMR's purpose is to return claimants to work and reduce costs to employers. (Riemer Ex. 5 at 5, 7.) On the latter issue, she raises two arguments: First, she claims that the test is more appropriate for measuring physical capability related to purely physical injuries, in that it fails to take into account the subjective experience of pain and fatigue, and that it is therefore of limited diagnostic value as applied to CFS. (P. Opp. 25-26.) Second, she seeks to introduce evidence, again from the website of the company that developed the FCE protocol, that the protocol is a tool developed specifically by the insurance industry aimed specifically at reducing payouts, and that it is therefore neither credible nor objective. (Id.) Disputing the validity of this test is important to Cook's case, as it represents the only direct test clearly casting doubt upon her disability status.

  District courts have discretion to consider evidence outside of the administrative record where good cause is shown, and the existence of conflict is considered good cause. DeFelice, 112 F.3d at 66-67. As the Second Circuit explained in DeFelice, "[p]laintiffs are utterly helpless Page 37 against the whim of the conflicted body's interpretation of the facts. The normal scope of limited `de novo' review is inappropriate where the fairness of the ERISA appeals process cannot be established using only the record before the administrator." Id. at 66. Moreover, the threshold for establishing conflict for purposes of enlarging the record is lower than it is for purposes of receiving de novo review: in the former instance, plaintiff's must merely show that a conflict exists, rather than having to demonstrate, as they must in the latter, that the conflict actually influenced the administrator's decision. Id. at 67. Plaintiff has shown that such a conflict exists in this case. See supra Part I. The evidence plaintiff seeks to introduce is relevant to the credibility of the sole evidence in the record that contravenes the nearly unanimous findings of her treating physicians. In light of the conflicted position of the Plan Administrator, this evidence will therefore be admitted.

  B. Disputed Issues of Fact

  Even considering the disputed evidence, however, the record as it stands at this time does not support a finding for the plaintiff as a matter of law on the twofold question of her diagnosis and its effect on her level of ability. It is true that over the course of her various appeals, plaintiff had submitted unanimous diagnoses of total disability due to CFS from all of her treating physicians, and once she was provided with specific information on the type of data needed, test results to support their findings. This evidence included an additional letter from Dr. Levine dated October 30, 1998, submitted during her last appeal, which did address many of the grounds on which NMR had based its previous denials,*fn15 as well as a profusion of additional test results Page 38 and letters from various physicians, dating from after the close of her last appeal, confirming her diagnosis of CFS, as well as the finding of total disability.*fn16

  However extensive, the evidence in Cook's favor is not uncontroverted. The reviewing physicians affiliated with MetLife's independent consultants who reviewed the documents that had been submitted prior to the close of her last appeal still found the evidence insufficient to. support a finding of total disability due to CFS, and the FCE test that plaintiff underwent at the request of MetLife concluded that she was able to return to work, with certain minor restrictions. Absent the holding of a procedural violation, these findings would represent evidence sufficient to uphold the EMC's determination on arbitrary and capricious review. See Nichols v. Verizon Communications, Inc., No. 01 Civ. 0497, 2002 WL 31477114 (D. N.J. August 16, 2002) (upholding determination in CFS case where evidence existed in the record that plaintiff's condition was not disabling). In this case, they also present disputed issues of fact. See Omara, 1999 WL 184114, at *4 ("The Court cannot conclude at this time, based on the record, that Plaintiff has established his entitlement to benefits as a matter of law."); George v. First Unum Page 39 Life Insurance Co., No. 93 Civ. 2916, 1995 WL 231254, at * 2 and n. 3 (S.D.N.Y. April 18, 1995) (failing to award summary judgment to ERISA plaintiff despite finding that defendant had violated notice requirement). While the evidence plaintiff has submitted does indicate possible bias on the part of the reviewing physicians and the protocols they utilized, it is insufficient to discredit their medical conclusions, which appear to have been based, at least in part, on permissible evaluations of the sufficiency of the evidence plaintiff submitted. Similarly, the evidence plaintiff has introduced with respect to the FCE test is not sufficient to discount completely its findings that she would be able to return to work with only light restrictions. Absent a full hearing, solely on the written record, the Court cannot resolve a dispute among medical experts. Therefore, plaintiff's motion for summary judgment as to her entitlement to LTD benefits must be denied.

 IV. Remedy

  A. Forum

  "[T]he remedy for the fiduciary's failure is not, as plaintiff argues, automatic entry of judgment in favor of the insured — in effect treating defendant's noncompliance as a ground for default — but rather, an opportunity for the insured to fully and fairly present his or her claim." George, 1995 WL 231254, at *2. The normal procedure for review of ERISA denials that have been found arbitrary and capricious is remand to the fiduciary for a new eligibility determination. See e.g., Wolfe v. J.C. Penney Co., Inc., 710 F.2d 388, 393 (7th Cir. 1983); VanderKlok, 956 F.2d at 617; Levin v. Citicorp, No. 94 Civ 6535, 1995 WL 57236, at *3 (S.D.N.Y. Feb. 10, 1995). Plaintiff argues, however, that she should be entitled to a hearing before this Court, Page 40 claiming that because it v/as the Administrator's own procedural failures that led to the unfair denial of her claim, remand would be futile.

  There is no doubt that the procedural violations identified above mandate that she be afforded some form of review; it is also true that remand raises concerns about the fairness of the review plaintiff will receive. See Masella v. Blue Cross & Blue Shield of Connecticut, Inc., 936 F.2d 98, 105 (2d Cir. 1991) (Feinberg, J.); VanderKlock, 956 F.2d at 617; Dawes, 1992 WL 350778, at *4-5. However, there is no longer any compelling reason the case should not be remanded. Taken together, the various denial notices and the contents of plaintiff's file are more than adequate to accomplish the intent of ERISA's regulations: that plaintiff have access to sufficient information to address completely the deficiencies identified in her file. Indeed, the information plaintiff has sought to submit since receiving her file responds directly to information it contains. Any remaining fairness concerns can be adequately addressed by allowing plaintiff to submit any additional evidence she wishes to supplement the record.

  Accordingly, the case will be remanded to the Plan Administrator for reconsideration. The EMC shall consider the information plaintiff submitted in 2001, as well as any further information plaintiff submits within a reasonable time following this opinion. During this review, the EMC is expected to comply with ERISA's requirements for full and fair review in reaching its determination, including the requirement that it "does not afford deference to the initial adverse benefit determination." 29 C.F.R. § 2560.503-1(h).

  B. Attorney's Fees

  ERISA § 502(g) provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g). In determining whether Page 41 to grant such an award, courts in the Second Circuit must consider: "(1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants." Krizek v. Cigna Group Ins., 345 F.3d 91, 102 (2d Cir. 2003), citing Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987). In this case, even though the plaintiff is not entitled to summary judgment, all five factors weigh strongly in her favor. Defendant wrongfully denied plaintiff the opportunity for a full and fair review, forcing her to bring the present lawsuit; the relative merits of the parties' position is thus in little doubt. Defendant should be able to satisfy the award, and to require it to do so may encourage better compliance in the future, thus conferring a benefit on future claimants. Plaintiff is thus entitled to an award of attorney's fees and costs expended up to and including the date of this opinion.


  The defendant's motion for summary judgment affirming its determination is denied. The plaintiff's cross-motion for summary judgment is granted to the extent that the defendant's determination is vacated, and the case is remanded to the EMC for reconsideration, but is otherwise denied. Judgment will be entered accordingly, and the Clerk is respectfully directed to mark the case closed.

  plaintiff's request for costs and attorneys' fees is granted, and plaintiff is directed to submit an application appropriately documenting the amount of costs and fees demanded by Page 42

  February 16, 2004. Defendant may submit a response by March 1, 2004. Any reply by plaintiff must be submitted by March 15, 2004.


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