Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

May 19, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


This is an action under the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. ("ERISA"). Plaintiff brings this claim against Continental Casualty Company, a/k/a/ CNA ("Continental"), Citibank, N.A. ("Citibank"), and Citibank, N.A. Long Term Disability Plan (the "Plan"), alleging that defendants improperly refused to pay plaintiff disability benefits to which he was entitled as a participant in the Plan. Pursuant to the agreement of the parties and an order of this Court dated December 11, 2003, the parties have filed motions for disposition of the case on the basis of the administrative record. For the reasons that follow, defendant's motion is granted. plaintiff's cross-motion is denied.


 1. The Long Term Disability Benefits Plan

  By an adoption agreement dated December 30, 1994, Citibank adopted a Long Term Disability Benefits Plan, as amended and restated effective October 1, 1993 (the "LTD Plan"). At all relevant times, Continental was the Claims Administrator/ Fiduciary of the LTD Plan. Under Article VI, Section 2 of the LTD Plan, the Claims Administrator/ Fiduciary had the authority to perform some or all of the following duties:

A. Determine eligibility for benefits and the amount thereof;
B. Pay benefits;
C. Provide continuous review of the mental and physical condition of a Participant who is receiving benefits;
D. Provide a written explanation to a Participant whose claims for benefits is [sic] denied; and
  E. Review denied claims as provided in Section 6 of this Article. The same section provides that "Notwithstanding anything in this Plan to the contrary, FIserv/ Compensation Services has been authorized to determine the amount of benefits and to pay benefits under the Plan as of the Effective Date."

  Article V, Section 4, of the LTD Plan is entitled "Forfeiture of Long-Term Disability Income." It provides, in part, as follows:

The Claims Administrator/ Fiduciary may require any Participant who is claiming or receiving Long-Term Disability Income to undergo a medical examination by a physician or physicians designated by the Claims Administrator/ Fiduciary. Should any such Participant refuse to submit to such a medical examination, the Participant's claims shall be denied or Long-Term Disability Income shall be discontinued until the Participant's withdrawal of such refusal. Should such refusal continue for 12 months, all rights in and to Long-Term Disability Income shall cease.
Article VI, Section 3, of the LTD Plan, entitled "Source of Benefits," provides as follows:
Except as prohibited by Section 505(b) of the Internal Revenue Code, all benefits payable under this Plan shall be paid solely from the assets of the Trust Fund and no Employer assumes any liability or responsibility for the payment thereof*fn1
  Article IV, Section 6, of the LTD plan provides, in part, as follows, with regard to claims procedure:

  A. Claims Procedures


A Participant may make a claim for benefits under this Plan by filing a claim in such form as may be prescribed by the Claims Administrator/ Fiduciary. Within 90 days after receipt of such claim, the Claims Administrator/ Fiduciary shall notify the Participant in writing as to whether the claim has been granted or denied in whole or in part. If the claim is denied in whole or in part, the written notification shall set forth the following in a manner calculated to be understood by the Participant:
(1) the specific reason or reasons for the denial;
(2) specific reference to pertinent Plan provisions on which the denial is based;
(3) a description of any additional material or information necessary for the Participant to perfect the claim and an explanation of why such material or information is necessary; and
(4) an explanation of the review procedures set forth below. B. Review of Denied Claims
Within 60 days after the claim has been denied, the Participant may file a written request for review of the denied claim with the Claims Administrator/ Fiduciary. The Participant shall also be entitled to examine pertinent documents and submit issues and comments in writing. Any decision on review shall be in writing, shall include specific reasons for the decision (including reference to the pertinent Plan provisions on which the decision is based) and shall be written in a manner calculated to be understood by the Participant.
2. plaintiff's Long Term Disability Claim

  In March 1999, plaintiff, a Citibank employee and a participant in the LTD Plan, applied for disability benefits in connection with injuries to his back. By letter dated May 19, 1999, plaintiff was informed that his claim had been approved through July 31, 1999. His claim was subsequently approved by a letter dated August 3, 1999, which informed plaintiff that his claim "has been approved through 8/31/99. Further benefits are pending updated objective medical." Subsequent approvals were communicated to plaintiff in monthly letters from September 1999 through February 2000.

  Plaintiff's claim was assigned to a disability specialist, Bethany Von Steenburg ("Von Steenburg"), and a nurse case manager, Pat Fitzgerald ("Fitzgerald"), both employed by Continental. According to a note dated November 22, 1999, Fitzgerald "[r]eceived call from [plaintiff] reporting that he needs to move to Fla. to be with family," and that "[i]t was explained to [plaintiff] that he must continue with appropriate care and MD, in order to continue benefits. [Plaintiff] stated understanding of this. [Plaintiff] stated that he will call with new MD name and no. ASAP."

  In a letter to plaintiff dated December 15, 1999, Von Steenburg stated that plaintiff "must provide us proof that you are under the care of a physician that is appropriate for your condition and that you are receiving ongoing treatment in accordance with the plan provisions. We will update your benefits through 1/15/00. However, the above information must be submitted by you or your treating doctor in order for us to evaluate your claim further. If this information is not received by 1/15/00, we will be unable to continue our evaluation and we will be forced to close your claim due to lack of medical information to support a disability."

  A letter dated February 2, 2000, from Von Steenburg to plaintiff, provided, in part, as follows:

This letter is to advise you of the status of your claim for Citibank Long Term Disability benefits. Benefits have been approved through 2/29/00. The Citibank Plan allows CNA to have you examined during the course of your claim. You will be contacted shortly about a Functional Capacity Evaluation that you will be required to attend . . . Further evaluation of your claim is pending completion of the testing and our review of the results.
  A Functional Capacity Evaluation ("FCE") is a procedure designed "to define an individual's functional abilities or limitations in the context of safe, productive work tasks." Phyllis M. King, et al., A Critical Review of Functional Capacity Evaluations, 78 Physical Therapy 852, 853 (Aug. 1998). On February 10, 2000, according to a note made by Fitzgerald, a nurse working for Dr. Gillespy, who at that time was treating plaintiff, said that it sounded "great" to order an FCE. On February 11, Fitzgerald made a note of a telephone call she received that day from the person setting up the FCE, who stated that an FCE had been scheduled for February 22, 2000, and that a prescription would be required, which she would attempt to obtain from Dr. Gillespy. According to a memo dated February 17, 2000, plaintiff is said to have stated that his doctor had said that he could not have an FCE.

  In a report dated March 2, 2000, Dr. Gillespy stated that "[o]bjective findings are compatible with symptom magnification according to my physical therapist." He noted under "Work Status" the following: "No work; patient is temporarily totally disabled." He also stated that "Patient is to follow up in the office in four weeks. I do anticipate patient's being discharged from my care at this time and being able to return to work." Dr. Gillespy noted in an entry dated March 10, 2000, that "Patient spoke to my nurse, Kathy, today and stated that he was discharging me as his physician because of changes in physical therapy have caused problems and that he has lost confidence in me."

  On March 13, 2000, Fitzgerald made a record of a conversation with Dr. Gillespy's office, in which she was told that plaintiff had stated that "no medical [information] should be released to anyone." On the same day, Von Steenburg signed a note stating that due to Continental's inability to get information, they would set up an Independent Medical Examination ("IME"), to be performed by a physician other than plaintiff's, so that they could obtain a prescription for an FCE.

  In a letter to plaintiff dated March 14, 2000, Von Steenburg purported to update plaintiff on the status of his claim for Citibank disability benefits. The letter provided, in part, as follows:

Based on the information provided by your doctor, your claim had been approved through 2/29/00. In an effort to clarify your functional level with regard to specific restrictions and limitations, we requested your current medical information from Dr. Gillespie. We also attempted to schedule a Functional Capacity Evaluation.
Dr. Gillespie has informed our office that you have revoked your authorization allowing his office to respond to our requests. Additionally, you have released yourself from his care effective 3/10/99. Therefore, we are unclear who is providing your current treatment.
Therefore, it is important that you understand the impact of your actions with regard to our continued processing of your claim.
• We must receive your current medical information from your last office visit with Dr. Gillespie.
• We must receive proof that you are under the regular care and treatment from a physician licensed and practicing within the scope of your condition.
This information must be received within 10 business days. If this information is not received by 3/27/00, we will be forced to close your claim due to lack of medical documentation supporting continued disability.
Additionally, we are scheduling an Independent Medical Evaluation. This appointment is at no cost to you and you are required to attend. Failure to cooperate with this appointment may result in termination of your claim.
  On March 22, 2000, plaintiff faxed to defendants a set of progress notes, dated March 7, 2000, generated at his "initial office visit" with Dr. Michael N. Fulton ("Dr. Fulton"), who became his treating physician. The "complaint" section reads, in part, as follows: "The patient has a diagnosis of herniated lumbar disc at L5-S1, which was operated January, 1998, in New York. At the same levels, laminectomy/discectomy was performed . . . Since the surgery, the patient has moved to Florida and has been followed by Dr. Albert Gillespy."

  Fitzgerald made a note that on March 23, 2000, she had a telephone conversation with plaintiff in which plaintiff told her that he "was instructed to not allow any MD send office visit notes, that he would send us any updates that we needed from MD."

  By letters dated March 31, 2000, Medical Consultants Network ("MCN"), the company to which Continental had assigned the task of setting up the IME and FCE, scheduled an IME and an FCE. Both examinations were scheduled for April 13, 2000, in Ormond Beach, Florida. The FCE was scheduled to begin at 8:00 AM, and to take "approximately 300 minutes." The IME, at which a prescription for the FCE was to be obtained, was scheduled to begin at 10:00 AM, and to take "approximately 60 minutes."

  According to Fitzgerald's notes, plaintiff contacted MCN on April 12, 2000, and advised that he would not be attending the IME or FCE scheduled for April 13, 2000, "under the advisement of his MD." Fitzgerald made a note of a phone call received from plaintiff on the same day, in which he informed her that he would not be going for the IME and FCE, and that his doctor would be faxing a letter to her on April 17, the date of his next scheduled office visit, explaining why he could not.

  Plaintiff did not appear for the scheduled examinations. On April 14, according to Fitzgerald's notes, Fitzgerald and Von Steenburg agreed to "close this claim" since "the plan provision allows for termination of claim if [a claimant] does not cooperate" with a scheduled appointment. On April 17, 2000, Fitzgerald received a fax from Dr. Fulton, stating, with regard to plaintiff, that "Pt. is not ready for functional capacity testing." A note signed by Von Steenburg and Fitzgerald, and dated April 19, 2000, reads "Reconference — Note from new doctor stating [plaintiff] was not ready to attend IME. This does not alter decision as no medical provided to support this. Continue w/ denial."

  By letter to plaintiff dated April 24, 2000, Continental purported to "update" plaintiff on the status of his claim for Citibank disability benefits. The letter included the following statements:

During the course of our evaluation of your claim, benefits were approved through 4/1 3/00. On 2/2/00 we notified you by mail that a Functional Capacity Examination would be scheduled and that you would be required to attend this appointment. We then scheduled an Independent Medical Evaluation with an orthopedic specialist and a Functional Capacity Evaluation. You were notified by mail on 3/31/00 that your evaluations were scheduled for 4/13/00.
On 4/13/00, we received notification that you failed to attend this appointment. As a result, we are unable to continue our evaluation and your claim file has been closed.
On 4/17/00, we received a fax from Dr. Fulton indicating that you were "not ready" to undergo these evaluations. However, no supporting medical documentation was provided.*fn2
  On May 30, 2000, Fitzgerald received a one page letter from Dr. Fulton, dated May 24, 2000, that provided, in part, as follows:


[Plaintiff] is being followed by me with a diagnosis of low back pain. He will be unable to attend a Functional Capacity Evaluation at this time due to the travel and extended sitting time that would be required of him. If you should have any additional questions please do not hesitate to contact our office.
  A note dated May 30, 2000, and signed by Von Steenburg, reads "Note [from Dr. Fulton] states that Mr. Ban is unable to attend an FCE at this time. No medical provided. No appeal received. Therefore decision not altered. Will send letter to [plaintiff.]." A letter to plaintiff from Von Steenburg, dated June 6, 2000, purported to update plaintiff on the status of his claim for Citibank disability benefits, and included the following statements:


On 4/24/00 we were forced to close your claim as you refused to cooperate with scheduled examinations. You were informed that you had the right to appeal this decision through 6/24/00.
On 5/30/00 we received a note from Dr. Michael Fulton stating that you were unable to attend a Functional Capacities Evaluation at this time. Dr. Fulton did not include any medical documentation for review. Additionally, this information did not address the Independent Medical Examination that was scheduled with the Orthopedic Surgeon prior to the Functional Capacities Evaluation.
  Therefore, we are unable to re-open this claim for evaluation. . . . Should you reconsider your decision to attend this appointment, please notify our office immediately. On June 15, 2000, Continental received a report from Dr. Fulton, dated June 12, 2000, which stated, in part, as follows:


I have also been asked to clarify my concerns about a functional capacity evaluation. It has been my experience that until these patients are closer to more normal strength values and range of motion, that functional capacity evaluations will frequently cause exacerbation and set back the rehabilitation process. I would continue to advise that the functional capacity evaluation be delayed and anticipate that it would be at least four months until the patient will be able to have that particular exam. I have also discussed, with the patient, a request for an Independent Medical Examination. If this is required by the insurance company, he will most likely need to comply with this examination."
  A note dated June 16, 2000, and signed by Von Steenburg, reads "Medical provided does not support [plaintiff's] inability to attend FCE, IME or work. Therefore, we will send letter & file remains closed." On the same day, Fitzgerald noted that `This medical info does not support the severity of [plaintiff s] condition to preclude [plaintiff] from a FCE test, in fact, MD has given info to support a marked improvement in [plaintiff's] condition, it is our understanding that the trained professionals administering a FCE would not push [plaintiff] into a exacerbation of his condition." Her recommendation was the scheduling of "another IME appt if [plaintiff] is now willing to attend." A letter of the same date from Von Steenburg to plaintiff, dated June 16, 2000, provided, in part, as follows:


On 4/24/00 your claim file was closed due to lack of medical documentation supporting continued disability and your failure to attend a scheduled Independent Medical Evaluation and a Functional Capacities Evaluation.
On 6/6/00 we notified you that we had received a note from your doctor on 5/30/00. We informed you that this note did not contain sufficient information to allow us to reopen your file. We explained that you should contact us should you agree to comply with our appointment requests. We also reminded you that you had until 6/24/00 to file an appeal.
On 6/15/00 we received a letter from Dr. Fulton. This letter indicates that you are capable of attending and [sic] Independent Medical Evaluation, but not a Functional Capacities Evaluation. Dr. Fulton did not provide any clinical data to support your inability to attend the FCE.
The Citibank plan states that benefits will end on the date CNA determines you refused to cooperate when referred for an independent medical examination. Therefore, as you have not agreed to attend the previously scheduled appointments, we are unable to re-open your claim.
If you are presently willing to attend an Independent Medical Evaluation, you must notify us by 6/24/00. You also have the right to appeal our decision by 6/24/00.
  On June 22, 2000, Continental received a letter from plaintiff dated June 18, 2000, indicating his intent to appeal the termination of his benefits. The letter provided, in part, as follows:


I have received many letters from you requesting additional information. Each time I have responded and each time a new letter appears requesting more additional information. When additional information is provided, it never seems to be enough . . .
I have fully cooperated with all requests from CNA. As concerns the IME: the reason I did not attend was due to the refusal by the test provider as well as CNA to reschedule the appointment which was set without my consult. My inability to drive due to my disability creates a hardship on me and requires dependence on my mother (who works) for transportation, creating a hardship on her as well. My mother was unavailable on the date you scheduled the appointment. When I requested the appointment to be rescheduled, you refused. I have never refused to cooperate, as stated in your letter. I am still willing to attend the IME and expressed this willingness to my doctor as evidenced in his notes. As concerns the FCE I am physically incapable of taking it. This is clearly medically documented by my doctor. My spinal incapacitation and instability is of such a critical nature that any disruption could cause an acute relapse of my prior immobility resulting in a situation where I could be permanently crippled. This is why the test is inappropriate and why my doctor does not allow it at this time. However, I may be able to tolerate the test at a future time when my condition has ameliorated as indicated in his notes. (Please refer to his notes for time frame involved.").
Dr. Fulton, Citibank, and other parties involved thought that the doctor notes sent to you by Dr. Fulton would take care of this matter. Obviously this detailed and concise 4-pages of doctor notes sent to you by Dr. Fulton were not perceived by you as taking care of this matter. The doctor is aware of this perpetuation of inquiry. The doctor responded to your request for additional "clinical data," pertaining to the FCE, calling it "ridiculous." He said he has never had to furnish this much information before for a patient; and his office deals primarily with disabled patients. Considering the patient's obvious condition, the doctor said, "they just don't want to pay." The doctor and other parties involved feel that the information provided is more than adequate and any further clarification would only be redundant.
  By letters dated June 28, 2000, MCN rescheduled the IME and the FCE for July 17, 2000, and July 25, 2000, respectively. Again, plaintiff was informed that the IME was expected to last approximately 60 minutes, and the FCE approximately 300 minutes. A note dated July 5, 2000, states that Fitzgerald "received a call from [plaintiff] informing [Fitzgerald] that he did receive notification of his IME and FCE. [Plaintiff] stated that he can not do a FCE at this time as his MD has already informed us. [Fitzgerald] informed [plaintiff] to go to IME and all the info from the IME would be taken into consideration in regard to the FCE. [Fitzgerald] informed [plaintiff] that the benefits have been pended until medical info from IME and FCE have been obtained. [Plaintiff] stated that he would go for the IME."

  In a letter to plaintiff dated July 5, 2000, Von Steenburg wrote, in part, as follows This will acknowledge receipt of your appeal request for your Citibank Long Term disability claim on 6/26/00. At the time of your submission you indicated that you would be willing to attend an Independent Medical Evaluation. However, you stated that you would not attend a Functional Capacities Evaluation. Please be advised that you will be contacted shortly with new appointment information. We have scheduled a Functional Capacity Evaluation following the Independent Medical Examination. There has been no information provided by Dr. Fulton that would support your inability to undergo this testing. Once the results for these appointments have been returned to our office, your claim will be forwarded on to the Appeals Committee for their review."

  A letter from plaintiff dated July 17, 2000, and addressed to Fitzgerald and Von Steenburg, stated, in part, as follows:

This letter is a continuance of my original appeal of the cessation of my disability insurance benefits . . .
This is to advise you that I attended the Independent Medical Exam which was scheduled today at 9:00 a.m. This is in fulfillment of the requirement specified by your disability clause within the corporate benefit insurance policy.
I walked into the office of the IME for the appointment fully prepared to cooperate with the doctor and commence with the exam. And I was able to commence with the exam for about twenty minutes (total amount of time spent in the office) but was unable to sustain any longer without causing further pain and injury to myself above and beyond the stress that the exam had already inflicted.
I came in expecting a medical examination but instead received a painful and debilitating experience. I was first greeted by two staff members who, as they became aware of my physical limitations, projected increasingly abusive attitudes. The first thing they presented me with was a questionnaire of approximately 35 pages containing approximately 40 questions per page — a task which would have taken a physically normal person 5 to 6 hours to complete. I was able to complete a page and a quarter. The physical aspects of my condition forces me to take 10 times the normal time to physically complete the writing part alone; add the aspect that my physical condition hinders my mental, the time is increased even more. To further complicate matters, they would not allow me to either lie down while I write or to assist me in any way to enable me to answer the questions. This left me with the only option to stand as I cannot sit. When I told the staff members that I could not continue because of the pain, the doctor promptly came onto the scene and told me I had no pain. He said "a study shows pain isn't as bad as it seems." He gave no indication that he had reviewed my history and he never gave me a physical exam. He also became abusive to my mother, for which there was no justification and had no place in my medical exam.
The doctor and his staff had a predetermined plan; the entire meeting was a one-side attempt to discredit my condition. The doctor and staff did all the talking and had no interest in anything I had to say. As a doctor, one would think that he would care somewhat about my condition. Instead, he aggravated me with unrelated statistics about his other patients, being completely unprofessional and abusive.
  A note dated July 18, 2000, states, in part, that "IMB doctor's office indicated that [plaintiff] came in with his mother and did not complete paperwork. He had to lay down and IME doctor did not see him since he had not completed the paperwork. File to be forwarded to appeals committee."

  In a letter to plaintiff dated July 20, 2000, appeals committee member Nancy Deskins stated, in part, as follows:

Your Long-Term Disability (LTD) claim was referred to the Appeals Area following receipt of your appeal letter dated June 6, 2000. Additional documentation was received during the appeals process and reviewed. A comprehensive review of your appeal for disability benefits has been completed and we have determined that the Company's decision to terminate disability benefits was correct.
According to our records, you reported a claim for disability beginning on 3/22/99. Your occupation was a Financial Analyst with Citibank. Benefits were terminated on your long-term claim effective 4/13/00 as you failed to attend the Independent Medical Evaluation scheduled with an orthopedic specialist on 4/13/00. The Citibank plan states that benefits end on the date CNA determines you refused to cooperate when referred for an independent medical examination.
On May 30, 2000, additional information was received from Dr. Michael Fulton stating that you were unable to attend a Functional Capacities Evaluation at this time. We informed you that your claim could not be re-opened. On June 15, 2000, Dr. Fulton faxed additional information and noted you could attend an Independent Medical Evaluation. Your claim remained closed as advised in CNA's letter of 6/16/00, as you had not agreed to attend an examination. On June 26, 2000, your letter of appeal was received noting your willingness to attend an Independent Medical Evaluation. This was rescheduled for July 17, 2000. An Functional Capacity Evaluation was also scheduled for July 25, 2000. In CNA's letter of 7/5/00, you were advised that no information was provided by Dr. Fulton that would support your inability to undergo this testing.
On July 18, 2000, CNA was advised by the evaluating physician's office that the independent medical examination was not completed. You did not complete the required paper work; therefore the examining physician could not complete an evaluation . . .
  We would like to remind you that disability income replacement benefits are available only if facts and medical evidence support an absence. This is described in The Big Book, Your Guide to Benefits and in the Protect Your Income brochure, both of which have been provided to all Citibank employees. CNA's mandate is to make decisions based upon medical evidence and policy provision . . . On July 19, 2002, plaintiff commenced the instant proceeding by filing a complaint.


  Jurisdiction is grounded in 28 U.S.C. § 1331, as the case presents a federal question under ERISA. As a covered beneficiary under a benefits plan which is subject to ERISA, plaintiff may challenge the denial of benefits under 29 U.S.C. § 1132(a)(1)(B), which provides that a civil action may be brought by a beneficiary "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan" 29 U.S.C. § 1132(a)(1)(B) (1995).

  Federal courts have a narrow role in reviewing the discretionary acts of ERISA plan administrators. Peterson v. Cont l Cas. Co., 282 F.3d 112, 116 (2d Cir. 2002). In Firestone Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court established rules regarding the level of deference to be accorded an ERISA plan administrator's or fiduciary's benefit determination. The Court held that:

a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. 489 U.S. at 115, 109 S.Ct. at 956-57.
  Where the plan reserves such discretionary authority, denials are subject to the more deferential arbitrary and capricious standard, and may be overturned only if they are "without reason, unsupported by substantial evidence or erroneous as a matter of law." Pagan v. Nynex Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995). Substantial evidence "is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [decisionmaker and] . . . requires more than a scintilla but less than a preponderance." Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995) (quoting Sandoval v. Aetna Life and Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992)).

  The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies. Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). The parties agree, as does the Court, that defendants have met this burden. This scope of review is "highly deferential," and the court is not free to substitute its own judgment for that of the administrator as if it were "considering the issue of eligibility anew." Pagan, 52 F.3d at 442-43. A district court's review under the arbitrary and capricious standard is limited to the administrative record, Miller, 72 F.3d 1066 at 1071, and the court must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)) (internal quotations and citations omitted). The Second Circuit has stated that "[w]here it is necessary for a reviewing court to choose between two competing yet reasonable interpretations of a pension plan, this Court must accept that offered by the administrators." Pagan, 52 F.3d at 443. In applying the arbitrary and capricious standard, however, "a court must weigh as a relevant factor whether an insurer operates under an inherent conflict of interest, by both administering a plan and paying benefits out of its own funds." Zuckerbrod v. Phoenix Mutual Life Insurance Co., 78 F.3d 46, 49 (2d Cir. 1996). See Bruch, 489 U.S. at 115, 109 S.Ct. at 957 ("Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a `facto[r] in determining whether there is an abuse of discretion."' (internal quotation omitted)). De novo review is triggered only if a plaintiff can 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 v. LTV Aerospace and Def. Co., 82 F.3d 1251, 1256 (1996)) (emphasis added by Pulvers)).

  Defendants claim that plaintiff's benefits were terminated because of plaintiff's failure to comply with his contractual obligation to submit to physical examinations that could provide objective evidence that he suffered from a disability that prevented him from working.

  Plaintiff claims that he must prevail if his actions were reasonable, and that there was a reasonable excuse for his "non-attendance at, or his non-completion of, the requested FCE and IME." Plaintiff further claims that "even assuming . . . that plaintiff's non-attendance at one or more of the scheduled FCE's or IME's were without reasonable justification, defendants still acted arbitrarily and capriciously." This argument rests on the following language in Article V, Section 4 of the LTD Plan:

The Claims Administrator/ Fiduciary may require any Participant who is claiming or receiving Long-Term Disability Income to undergo a medical examination by a physician or physicians designated by the Claims Administrator/ Fiduciary. Should any such Participant refuse to submit to such a medical examination, the Participant's claims shall be denied or Long-Term Disability Income shall be discontinued until the Participant's withdrawal of such refusal. Should such refusal continue for 12 months, all rights in and to Long-Term Disability Income shall cease.
  Relying on that section, plaintiff makes the argument that "the Plan correctly envisions that there are two (2) `categories' of participants who may be called upon to submit to a medical examination: (i) those who have submitted a claim, but who have yet to have their claim approved or to receive any benefits; and (ii) those who have already had their claim approved and are thus receiving benefits at the time that they are asked to submit. For the former group, an unjustified refusal to submit leads to a claim denial; for the latter, however, an unjustified refusal triggers only a temporary suspension of benefits (until the refusal endures for 12 months, at which time "all rights . . . cease)." Plaintiff argues that since he falls into the latter category, then, if there were no justification for his non-attendance, defendants were only permitted to suspend his benefits. Thus, plaintiff claims that the April 24, 2000, letter, which stated that defendants were "unable to continue our evaluation and our claim file has been closed" and the July 20, 2000, appeal denial letter, which stated that plaintiff's benefits had been terminated, not merely suspended, "misstate plaintiff's status, and thus severely undercut his ability to discern that he still had plenty of time to `cure' his breach." Plaintiff also claims that in evaluating defendants' conduct, the Court should consider "defendants' conflicted status," said to exist "because the entity charged with the task of evaluating plaintiff's benefit eligibility is the very same entity out of whose pocket the benefits are payable." Plaintiff's contention that "[u]pon information and belief, defendants readily acknowledge that a conflict exists" appears to have no support in the record.*fn3 We also decline to follow plaintiff's suggestion that since defendant's failed to respond to plaintiff's request for admissions on this topic, dated January 9, 2004, defendants are unable to deny a conflict. This request for admissions was made after the close of discovery, and no application was ever made to the Court for an extension of the discovery deadline.

  Applying a "highly deferential" standard of review to Continental's actions, we conclude that they were neither arbitrary nor capricious. Under Article V, Section 4, of the LTD Plan, Continental had the authority to require plaintiff to undergo a medical examination by a physician of Continental's choosing. It was not unreasonable for Continental to require an IME, given the need to obtain a prescription for the FCE. The obstacles involved in obtaining plaintiff's medical records following plaintiff's relocation to Florida provided a rationale for the FCE, which would reveal the extent of the restrictions on plaintiff's ability to work. Under the LTD Plan, where a participant refuses to submit to a medical examination, "the Participant's claims shall be denied or Long-Term Disability Income shall be discontinued until the Participant's withdrawal of such refusal." In the light of that provision, it was not unreasonable for Continental to inform plaintiff that his claim file had been closed following plaintiff's refusal to attend the scheduled IME and FCE, without a reason more specific than that, in his doctor's opinion, he was "not ready for functional capacity testing." Continental's decisions not to re-open plaintiff's claim, on the basis of its finding that "Dr. Fulton did not provide any clinical data to support [plaintiff's] inability to attend the FCE," as well as the fact that Dr. Fulton did not in any way justify plaintiff's failure to attend an IME, were also not unreasonable.

  The handling of plaintiff's appeal was not arbitrary or capricious. Plaintiff was informed of his appeal rights in the letter announcing that his claim file had been closed. As required by the LTD Plan, the appeal decision included specific reasons for the termination of plaintiff s claim. It was not unreasonable to affirm the termination of disability benefits on the basis of plaintiff's refusal to attend the first scheduled IME, and his refusal to stay more than twenty minutes at the second scheduled IME.*fn4 It is true that, as noted by plaintiff, the appeal decision was issued prior to the second scheduled FCE, but this does not show that Continental acted in an arbitrary or capricious manner, since plaintiff had never given any indication that he had retreated from his previous refusal to submit to an FCE.

  Contrary to plaintiff's argument, Continental's use of the word "termination" to describe the discontinuance of plaintiff's benefits does not show that Continental acted arbitrarily or capriciously. It would be reasonable to interpret Article V, Section 4, of the LTD Plan not in the manner proposed by plaintiff, which lacks support in the plain language of the LTD Plan, but so as to permit defendants to announce the "termination" of a claimant's benefits in the circumstances presented here, even prior to the passing of twelve months from the time of plaintiff's first refusal to submit to a medical examination. In this connection we note that even after "clos[ing]" plaintiff's "claim file," Continental raised with plaintiff, in letters dated June 6, 2000, and June 16, 2000, the possibility of his reconsidering his decision not to attend the IME, and in a letter dated July 5, 2000, informed plaintiff that an IME and an FCE had again been scheduled for him.

  We join with plaintiff in querying the initial scheduling of plaintiff's IME and FCE. As scheduled, plaintiff was apparently supposed to attend a 300 minute FCE beginning at 8am on the same day that he was to ttend a 60 minute IME beginning at 10am. As well as the obvious impossibility of attending both examinations, this schedule put the start time of the FCE earlier than the IME at which plaintiff was to receive his prescription for the FCE. However, neither this scheduling action by MCN, the company assigned by Continental to schedule these examinations, nor Continental's later use of the fact that plaintiff failed to attend either examination, suffices to show that defendants' actions were arbitrary and capricious. In this respect, we note that there is no suggestion in the record that this scheduling detail was the reason for plaintiff's failure to attend either examination.


  Our review of the administrative record fails to show that defendants' actions in discontinuing plaintiff's disability benefits were "without reason, unsupported by substantial evidence or erroneous as a matter of law." Pagan, 52 F.3d at 442. Nor do we find that defendants displayed a "clear error of judgment" or failed to consider the relevant factors. Jordan, 46 F.3d at 1271 (internal quotation omitted). Accordingly, defendants' motion is GRANTED, plaintiff's cross-motion is DENIED, and plaintiff's complaint is dismissed in its entirety. The Clerk of the Court is respectfully directed to remove the case from this Court's docket.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.