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United States District Court, N.D. New York

March 31, 2004.


The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District


Plaintiff Katherine O. Casey commenced this action by filing a summons and complaint in state court on January 5, 2000. Defendant First UNUM Life Insurance Company ("First UNUM") removed the action to this Court on February 18, 2000, on the ground that "[t]his action is governed by ERISA." See Notice of Removal at ¶ 5.

  Defendant subsequently filed a motion for summary judgment. By Memorandum-Decision and Order dated September 5, 2001, this Court granted Defendant's motion with respect to Plaintiff's breach of contract claim because, as Plaintiff's counsel conceded, ERISA preempted Page 2 that claim. See Memorandum-Decision and Order, dated September 5, 2001, at 7 n.3. The Court, however, denied Defendant's motion with respect to Plaintiff's claim that Defendant wrongfully terminated her disability benefits pursuant to ERISA. The Court remanded the case to Defendant with instructions to consider all relevant evidence, to apply the appropriate standards, and to reach a determination as to whether Plaintiff is, in fact, disabled within the meaning of the Plan. See id. at 15. The Court further instructed Plaintiff that she was to inform the Court in writing of the result of Defendant's review process, including appeals, and the effect of that result on the continued viability of her action. See id. at 16.

  Upon completion of the review process, Plaintiff moved for summary judgment on her ERISA claim and Defendant moved for judgment on the administrative record. The Court will address each of these motions in turn.


  In October 1994, Defendant issued Group Long Term Disability Policy No. 457187 (the "Policy") to Jowonio School, Plaintiff's former employer. The Policy is an employee benefits plan within the meaning of the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), and was designed to provide long term disability income benefits to eligible employees. See Declaration of Bruce Dominick, sworn to March 26, 2001 ("Dominick Decl.," at ¶ 3.

  In September 1995, Plaintiff began working as a full-time employee at Jowonio School as an Administrative/Accounting Assistant. Her job duties included maintaining staff records, therapist time sheets, child attendance records, billing for all special needs children, interaction Page 3 with employees regarding benefits, input of financial data to the general ledger, reconciliation of bank statements, tracking accounts receivable and accounts payable, typing, and, when the secretary was absent, office coverage, which included reception of visitors, answering phones, copying and filing. See Declaration of Walter Kogut, dated May 17, 2001, Exhibit "A" (Transcript of the Deposition of Katherine O. Casey, dated January 16, 2001 ("Casey Tr.")), at 18. After the birth of her first child, Plaintiff requested, and was granted, permission to work three days per week. See Casey Tr. at 20, 22. Her duties remained the same. See id. at 19.

  In January 1997, Ms. Casey fell down some stairs in her home and injured her back. Although she experienced some pain after the fall, she did not immediately see a doctor or miss time from work. However, on July 2, 1997, Plaintiff sought treatment from Dr. Greenky, an orthopedist, whose notes indicate a diagnosis of a herniated disk. See Dominick Decl., Exhibit "A," at 33. On that same day, on Dr. Greenky's advice, Plaintiff left work on short term disability because of her back pain.

  On October 10, 1997, Ms. Casey filed an application for long-term disability benefits under the Policy. See Dominick Decl., Exhibit "A," at 17-19. At that time, Ms. Casey was working part-time, twenty-one hours per week. By letter dated November 7, 1997, Defendant approved her application and began paying her benefits. See id., Exhibit "A," at 20.

  From November 1997 until January 1999, Defendant continued to pay Plaintiff disability benefits under the Policy. See Dominick Decl. at ¶¶ 10-11. In addition, Defendant attempted to collect additional information about Plaintiff's claim. See id. at ¶¶ 12-22. On August 26, 1998, Defendant wrote to Dr. Yuan, Plaintiff's treating physician, requesting copies of his treatment notes and test results and requesting that Dr. Yuan complete a "Physical Capacities Form," which Page 4 was enclosed with the letter. See id. at ¶ 13 and Exhibit "A" at 68. Dr. Yuan returned the Physical Capacities Form on September 14, 1998, but he did not complete the form and he did not include copies of his medical records. See id. at 14. Thereafter, by letter dated September 28, 1998, Defendant wrote to Plaintiff, advising her, among other things, that Dr. Yuan had neither provided copies of his medical records nor completed the Physical Capacities Form. See id. at ¶ 15 and Exhibit "A" at 77-78. Defendant also advised Plaintiff that it needed proof of her on-going disability and that, if it did not receive that information within thirty days, it would conclude that she was no longer pursuing disability benefits and would close her claim. See id. at ¶ 15.

  On October 29, 1998, Defendant's claim representative spoke with Plaintiff about her current condition. See id. at ¶ 17. Plaintiff told the claim representative that she had seen Dr. Yuan on October 5, 1998, and that he had performed an MRI. See id. That same day, Defendant wrote to Dr. Yuan requesting his office notes and requesting that he complete the Physical Capacities Form. See id. at ¶ 18 and Exhibit "A" at 88. Although Dr. Yuan provided a copy of his notes, he did not complete the form. See id., Exhibit "A," at 97-100.

  Thereafter, Eileen Mayo, RN CCM, reviewed Plaintiff's file for Defendant. Ms. Mayo also called Dr. Yuan's office and received a return call from Pat Lampert, a registered nurse practitioner in Dr. Yuan's office. See id. at ¶ 20 and Exhibit "A" at 104-05. Ms. Lampert advised Ms. Mayo that Dr. Yuan did not complete forms outlining physical limitations and restrictions. See id.

  On December 21, 1998, Ms. Mayo wrote to Dr. Yuan summarizing her review: Page 5


Based on review of the available information and attempts to obtain further information from you, we have concluded that Ms. Casey would minimally be able to perform part-time work at a sedentary level. It is reasonable that she would require the ability to change positions, alternate sit/stand every half hour or so. It is also reasonable that she would be capable of a 20 hour/week at this level. If you disagree with the above, please forward your response within 14 days to my attention. Please include specific restrictions and limitations, and the basis for each. . . . If I do not hear from you within 14 days of this letter, I will assume you concur with our conclusions of part-time sedentary work capacity.
See Dominick Decl., Exhibit "A," at 106-07.

  Dr. Yuan did not respond to Ms. Mayo's letter. See id. at ¶ 22. Shortly thereafter, consistent with Defendant's review, which found that Plaintiff was not disabled from her part-time occupation, Defendant denied her benefits beyond January 13, 1999. Defendant sent Plaintiff a letter setting forth the reasons for its decision. See id., Exhibit "A," at 112-13. Defendant also advised Plaintiff that she had the right to an ERISA review. See id. at ¶ 24 and Exhibit "A" at 112. By letter dated January 28, 1999, Plaintiff exercised that right. See id. at ¶ 25 and Exhibit "A" at 117.

  The ERISA review consisted of a complete review of Plaintiff's file. See Dominick Decl. at ¶¶ 26-21. During the course of that review, Defendant received additional records from Dr. Yuan concerning his March 30, 1999 office visit with Plaintiff. In his notes, Dr. Yuan wrote

  It is my opinion, with a degree of medical certainty, that these are the limitations she has. She continues to be totally disabled from going back to any gainful employment of anybody that will hire her. But, if we are going to qualify limitations meaning that lifting 10 lbs, walking 15-20 minutes, sitting for 15-20 minutes, interchanging positions with these degrees of so-called limitations, the patient can be working on a part time basis. If one pushes me to answer those specifically, that is exactly what she has been doing at home so based on those limitations of function, that is Page 6 what she is doing so she can certainly function at that level. This young lady at this particular point does not have anything acute. If she has anything acute, she will let me know.

 See Dominick Decl., Exhibit "A," at 126.

  Additionally, as part of the ERISA review, Defendant obtained the opinions of Dr. Sharon Hogan, an internist, and Robert Violetta, a vocational consultant. Dr. Hogan stated, "Dr. Yuan outlines specific R & Ls [restrictions and limitations] in his 3/99 office visit which appear to be consistent with part-time sedentary light work cap [capacity] changes in position as needed every 15-20 min [minutes], no lifting [greater than] 10 lbs. . . ." See id., Exhibit "A," at 150. In his report, Mr. Violetta stated that

According to the Dictionary Of Occupational Titles, school secretary exists in the general economy at a sedentary exertion level — primarily sitting with standing/walking up to an occasional basis and lifting up to 10 lbs. frequent, reaching, handling and fingering are also required. The material duties of this occupation and incumbent discretion allow for change of position from sit to stand at the intervals prescribed above.
With the restrictions and limitations identified above, Ms. Casey would be able to perform her school secretary occupation as it typically exists in the general economy according to the Dictionary Of Occupational Titles.
See id., Exhibit "A, "at 152.

  Based upon this ERISA review, Defendant determined that Plaintiff was not disabled from her part-time occupation and, therefore, upheld its decision to deny benefits. See Dominick Decl. at ¶ 30. Upon receiving Defendant's notification of its determination, Plaintiff commenced the present action under ERISA. As noted, Defendant subsequently moved for summary judgment. Page 7

  In its previous Memorandum-Decision and Order addressing Defendant's motion, the Court found that, based upon Defendant's ERISA review, Defendant was not entitled to summary judgment because of several inconsistencies in the administrative record. First, the Court noted that the record was unclear as to whether Defendant relied upon the appropriate definition of Plaintiff's "regular occupation" in determining that she was not disabled and, therefore, not entitled to benefits. Defendant's vocational consultant had relied upon the Dictionary of Occupational Titles' definition of "School Secretary," even though Plaintiff's job title was "administrative/accounting assistant." Second, the Court expressed concern that Defendant took no steps to clear up the confusion caused by the apparent inconsistency between Dr. Yuan's two statements, i.e., that Plaintiff "continues to be totally disabled from going back to any gainful employment of anybody that will hire her" and that with certain limitations Plaintiff "can be working on a part time basis." Third, the Court noted that "`an ERISA fiduciary such as a plan administrator in [sic] under a duty to act solely in the interests of the participants and that this includes a duty to investigate a claimant's claim for benefits and develop reasonably available evidence.'" See Memorandum-Decision and Order at 13 (quoting Janas, 1999 WL 31006, at *6 (citation omitted) (emphasis added)) (footnote omitted). Fourth, the Court stated that it appeared that Defendant virtually ignored Plaintiff's past objective medical evidence that she suffered from a herniated disk. Finally, the Court noted that remand would provide Defendant with the opportunity to compare Plaintiff's limitations and restrictions with the material duties of her regular occupation as an administrative/accounting assistant in a small school.

  With regard to the last finding, the Court concluded that, based upon the evidence in the administrative record, Defendant failed to consider a number of relevant factors in arriving at its Page 8 determination that Plaintiff could perform "`each of the material duties of [her] regular occupation.'" See id. (quoting Martin, 999 F. Supp. at 422). Based upon all of these inconsistencies in the administrative record, the Court denied the motion and remanded the matter to Defendant with instructions to consider the issues noted above, to apply the appropriate standards and to reach a determination as to whether Plaintiff is, in fact, disabled within the meaning of the Policy.

  With this background in mind, the Court will now address the issues that the parties raise in their present motions for summary judgment and for judgment on the administrative record.


 A. Standard of review

  Plaintiff argues that the standard for reviewing Defendant's decision should be de novo because Defendant was operating under a conflict of interest in its role as both the adjudicator and payer of the claims. To support this assertion, Plaintiff sets forth only conclusory allegations, citing Defendant's "adversarial handling" of her claim and the negative media attention Defendant has received. See Plaintiff's Memorandum of Law at 21.

  "In order to trigger de novo review of an administrator's decision when the plan itself grants discretion to the administrator, a plaintiff must show that `the administrator was in fact influenced by the conflict of interest.'" Pulvers v. First UNUM Life Ins. Co., 210 F.3d 89, 92 (2d Cir. 2000) (quoting Sullivan, 82 F.3d at 1256) (other citation omitted). The plaintiff bears the burden of proving that a plan administrator was influenced by a conflict of interest. See Sullivan v. LTV Aerospace & Defense Co., 82 F.3d 1251, 1259 (2d Cir. 1996). The fact that a defendant Page 9 served as both plan administrator and plan insurer, although a factor to be weighed in determining whether there has been an abuse of discretion, is not sufficient to trigger de novo review. See Pulvers, 210 F.3d at 92 (citations omitted).

  In the present case, there is no evidence that Defendant was, in fact, influenced by the conflict of interest inherent in its role as adjudicator and payer of claims. Upon remand, Defendant conducted an extensive investigation of Plaintiff's claim for benefits. Specifically, Defendant hired a third vocational consultant, Mr. Byard, who reviewed the matter and determined that, given Dr. Yuan's restrictions and limitations, Plaintiff could perform her occupational duties. Defendant also attempted to contact Plaintiff's physician, Dr. Yuan, but claims Plaintiff's counsel prevented it from communicating with him,*fn1 and Defendant opted not Page 10 to request that Plaintiff undergo an independent medical evaluation because it would not determine whether Plaintiff was disabled on January 13, 1999.

  Based upon the above, the Court finds that Plaintiff has failed to prove that Defendant was, in fact, influenced by a conflict of interest. Accordingly, the Court will review Defendant's decision to deny Plaintiff benefits using the "arbitrary and capricious" standard.

 B. Defendant's decision regarding Plaintiff's disability benefits

  The Court reviews Defendant's denial of Plaintiff's disability benefits under the "arbitrary and capricious" standard because, here, Defendant has the discretionary authority to determine eligibility for benefits and to construe the terms of the Policy. See Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995) (citations omitted). This standard of review "is limited to the administrative record," Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995), and "is highly deferential to a plan administrator." Martin v. E.I. DuPont de Nemours & Co., 999 F. Supp. 416, 422 (W.D.N.Y. 1998). When applying this standard, a 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 (quotation and other citation omitted).

  As a preliminary matter, the Court finds that Defendant complied with the Court's Order Page 11 on remand. Specifically, Defendant's vocational consultant, Richard Byard, concluded that, given Dr. Yuan's limitations and restrictions, Plaintiff would be able to perform the material duties of her occupation. Furthermore, Mr. Byard concluded that Plaintiff's material duties consisted of a combination of the Personnel Clerk and Accounting Clerk, and due to the variety of tasks required by these jobs, Plaintiff would be able to change physical posture throughout the work day. Moreover, having reviewed the administrative record, the Court concludes that there is substantial evidence in that record to support these conclusions and, thus, to support Defendant's decision to deny Plaintiff benefits. Accordingly, the Court holds that Defendant's decision to deny Plaintiff benefits was not arbitrary and capricious and, therefore, Defendant is entitled to judgment on the administrative record.*fn2


  After carefully considering the file in this matter, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

  ORDERS that Defendant's motion for judgment on the administrative record is GRANTED; and the Court further

  ORDERS that Plaintiff's motion for summary judgment is DENIED; and the Court further Page 12

  ORDERS that the Clerk of the Court enter judgment in favor of Defendant and close this case.


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