United States District Court, N.D. New York
May 20, 2004.
JANICE SORON, Plaintiff, -vs- LIBERTY LIFE ASSURANCE COMPANY OF BOSTON (a/k/a Liberty Mutual); FLEET BOSTON FINANCIAL GROUP; and FLEET BOSTON LONG TERM DISABILITY PLAN, Defendants
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
On March 3, 2003, plaintiff Janice Soron ("plaintiff") filed an amended
complaint against defendants Liberty Life Assurance Company of Boston
("Liberty"), Fleet Boston Financial Group ("Fleet Boston"), and Fleet
Boston Long Term Disability Plan, alleging that Liberty improperly denied
her application for long-term disability benefits (first cause
of action), and seeking reinstatement of certain employee benefits that
were subsequently terminated by Fleet Boston (second cause of
Both plaintiff and defendants have filed a motion for summary judgment
pursuant to Fed.R.Civ.P. 56. Oral argument was heard on May 14, 2004,
in Utica, New York. Decision was reserved. An administrative record
surpassing 600 pages in length has been carefully reviewed.
II. FACTUAL BACKGROUND
Plaintiff was employed by a subsidiary of Fleet Boston at various
points from November 4, 1985, to November 15, 2001. Under a long-term
disability benefits policy, administered and payable by Liberty, a
participant was entitled to benefits if, inter alia, she was
"unable to perform all of the material and substantial duties of [her]
[own] occupation on an Active Employment basis because of an Injury or
Sickness." (Docket No. 18, Attach. 1, Ex. A, § 2.)
In September 1999, plaintiff was approved for short-term disability
benefits based on the onset of symptoms of rheumatoid arthritis. On March
12, 2000, her short-term benefits expired and she applied for long-term
disability benefits. In support of the application, plaintiff submitted
notes from her treating physician, Dr. Ute Dreiner, that indicated she had rheumatoid arthritis, and was completely disabled
from performing the essential duties of her position.
Thereafter, Liberty retained Dr. Donald Abbott to review the submitted
medical records. On April 18, 2000, he issued a written, 1 1/2 page
report questioning the basis for the rheumatoid arthritis diagnosis on
the submitted records, and noting that, in any event, the lack of
follow-up documentation and x-rays that would properly document the
On June 20, 2000, Liberty informed plaintiff that her
application for long-term disability benefits was being denied. As
support for the decision, the letter stated that "[t]he office treatment
notes received from September 1999 through April 2000 from [Dr. Dreiner]
have been reviewed by a MD in our managed disability services
department," who along with "the claims department" concluded "that there
was not sufficient objective medical information supporting total and
permanent disability." (Docket No. 18, Attach. 1, Ex. B, Administrative
Record, p. 70) ("Admin. Rec. at ___"). The letter neither enclosed Dr.
Abbott's written report nor advised plaintiff that she could request it.
In fact, Dr. Abbott's name was not even mentioned.
In July 2000, plaintiff requested that Liberty reconsider its
determination. In support, plaintiff submitted extensive narratives from
both herself and Dr. Dreiner, detailing her condition and symptoms. A
medical examination was scheduled by Liberty and performed by Dr. Ze've
Weitz, a rheumatologist, who diagnosed plaintiff with "rheumatoid
arthritis with low-grade activity" and a "[s]econdary diagnosis [of]
fibromyalgia." (Admin. Rec. at 438.) While it was noted that "there is no
evidence of an acute significant inflammatory arthritis" and that "[m]ost of her complaints are probably due to
the secondary fibromyalgia, Dr. Weitz opined that plaintiff was "disabled
from her usual line of work, which include[d] using a keyboard and
standing long hours on her feet." (Admin. Rec. at 438.)
On November 16, 2000, Liberty sent a fax to the consulting firm that
hired Dr. Weitz, indicating that the report was "not a very good
[independent medical exam," and enclosing some questions for the doctor
along with plaintiffs job description. (Admin. Rec. at 555.) By letter
dated November 21, 2000, Dr. Weitz responded to the questions,
reaffirming the earlier diagnoses and opinion. (Admin. Rec. at 422.)
In early December 2000, Liberty informed plaintiff that although it
needed additional information to determine her eligibility, it was
granting her long-term disability benefits retroactive to March 12, 2000,
and continuing until its processing of her application was completed.
Also during December 2000, Liberty received the first of three
investigative reports from a private surveillance firm it had engaged to
videotape and document plaintiff's physical activities. (Admin. Rec. at
Plaintiff thereafter underwent, at Liberty's request, a transferable
skills analysis and a functional capacity evaluation ("FCE"). In the
transferable skills analysis, it was noted that a medical peer review was
undertaken, at Liberty's request, by Dr. Tanya Lumpkins in January of
2001, who opined that plaintiff could perform her job with certain
lifting, standing/walking, and typing restrictions. The physical
therapist who performed the FCE concluded on April 12, 2001, that
plaintiff was "functioning in the sedentary work classification category
for an 8 hour period."*fn2 (Admin. Rec. at 483.) She noted that
plaintiff demonstrated on an occasional basis a "tolerance of walking,
standing, stair climbing, overhead reaching, forward reaching,
pushing/pulling, crawling, kneeling, stopping and crouching," and on a
frequent basis a tolerance of "sitting, trunk bending, squatting, and
trunk twisting." Id.
On May 12, 2001, and July 18, 2001, after videotaping and documenting
surveillance on plaintiff, the private firm engaged by Liberty issued its
second and third reports.
Dr. Gale Brown, again at Liberty's request, reviewed plaintiff's
medical records and documentation, and issued a written 8-page report on
October 1, 2001, regarding whether she was disabled from performing her
job functions. Dr. Brown found that the "medical evidence substantiated]"
the rheumatoid arthritis diagnosis, and recommended standing/walking and
wrist/hand activity restrictions, as well as "[p]osition changes as
necessary" and the "[u]se of wrist splints." (Admin. Rec. at 403.) Dr.
Brown concluded that the record supported that plaintiff could perform
the essential duties of her position with the recommended restrictions.
As support for her conclusion, Dr. Brown cited Dr. Dreiner's opinion and
physical exam findings, as well as the medical exam performed by Dr.
On October 18, 2001, Liberty informed plaintiff it was again
denying her long-term disability benefits application. The letter
explicitly cites as support for its conclusion plaintiffs medical record,
Dr. Brown's report, the FCE, and a portion of Dr. Weitz's report. Dr.
Weitz's answers to Liberty's follow-up questions are not cited or
included, nor is his belief that plaintiff was totally disabled from her
usual line of work, which included prolonged standing and substantial typing duties. Neither the surveillance
videotapes/reports nor Dr. Lumpkins's peer review are explicitly
identified as support for the denial. The letter neither provides copies
of the evidence relied upon in reaching the decision Dr. Brown's
report, the FCE, and Dr. Weitz's report nor advises plaintiff she
can request copies of the same or of the other documentation it had in
its possession before rendering the decision.
On November 6, 2001, plaintiff again requested, this time through
retained counsel, that Liberty reconsider its denial of her long-term
disability benefits application. In counsel's letter, copies of any
independent medical examinations and the FCE were demanded. On December
5, 2001, counsel wrote Liberty again demanding the examinations and FCE.
Liberty provided the demanded material just over a week later, on
December 13, 2001. On January 10, 2002, Liberty informed plaintiff that
it would need more time to process her application.
On March 23, 2002, plaintiff's file including correspondence
and records from her and Dr. Dreiner, Dr. Brown's review, Dr. Weitz's
report, Dr. Abbott's review, the FCE, the transferrable skills analysis,
and the three surveillance reports was reviewed, again at the
request of Liberty, by Dr. Richard Herman.*fn3 He noted that "[t]here is
little debate as to whether or not [plaintiff] has Rheumatoid Arthritis,"
and a general consensus among all medical professionals with the
exception of Dr. Dreiner that should plaintiff return to work, she should
avoid "repetitive hand activity [and] prolonged standing." (Admin. Rec.
at 394.) Dr. Herman concluded that plaintiff "would appear to have the
stamina to work forty hours a week in a sedentary occupation." (Admin.
Rec. at 395).
One week later, by letter dated April 1, 2002, Liberty
reaffirmed, for the final time, its conclusion that plaintiff was not
eligible for long-term disability benefits. The letter stated that
Liberty "reviewed the medical information from [plaintiff's]
physician(s), an [FCE], independent medical peer review reports[,] [and]
then compared [her] restrictions and limitations outlined in the medical
information to the requirements of [her] occupation of Administrative
Assistant." (Admin. Rec. at 397.) This letter, more extensive than the
earlier two, then referenced and at times quoted from Dr. Brown's review,
the FCE, and Dr. Weitz's report. The letter disclosed Dr. Weitz's
conclusion that she could not work because of the prolonged standing and
repetitive typing required in her job, but noted that he did not find
swelling or inflammation. The letter noted also that the medical experts,
with the possible exception of Dr. Dreiner, all agreed that restrictions
relating to standing and hand activity would allow her to perform her
"sedentary" job on a full-time basis. The letter also detailed the
contents of the surveillance reports. For the first time, the letter
stated that plaintiff "may request, free of charge, copies of all
documents relevant to [her] claim." Id. at 399.
On May 6, 2002, counsel for plaintiff wrote Liberty demanding "copies
of all documents relevant to [plaintiffs] claim, including the
surveillance tapes of May and July 2001, and a full copy of her policy."
On May 22, 2002, counsel for plaintiff reiterated the demand. On May 30,
2002, Liberty sent counsel her file and a copy of the long-term
disability benefits policy. On June 13, 2002, Liberty sent plaintiffs
counsel copies of the relevant surveillance tapes. Thus, over two months
after Liberty's final decision denying her claim for long-term disability benefits, plaintiff finally came
into possession of what was apparently Liberty's complete file on her
On December 16, 2002, plaintiff commenced the instant action, amending
her complaint on March 3, 2003, to include the second cause of action
against Fleet Boston. The pending motions followed.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. N.Y. State Dep't of Corr.
Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences
therefrom, and ambiguities must be viewed in a light most favorable to
the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Once the moving party has met the initial burden of demonstrating the
absence of a genuine issue of material fact, however, the nonmoving party
"must set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56; Anderson, 477 U.S. at 250. At that
point, the nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec., 475 U.S. at 386. Indeed, to withstand a summary judgment
motion, the nonmoving party must demonstrate that sufficient evidence
exists upon which a reasonable jury could return a verdict in its favor.
Anderson, 477 U.S. at 248-49; Matsushita Elec., 475
U.S. at 587. B. Denial of Benefits Full and Fair Review
Because there is no question that the long-term disability benefits
policy grants to Liberty the "authority to determine eligibility for
benefits or to construe the terms of the plan," its decision to deny
plaintiffs claim for benefits is reviewed for an abuse of discretion.
See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115, 109S.Ct. 948, 103 L.Ed.2d 80 (1989): see also
Kinstler v. First Reliance Standard Life Ins. Co.,
181 F.3d 243, 252 (2d Cir. 1999) (stating that the plan must contain "either
language stating that the award of benefits is within the discretion of
the plan administrator or language that is plainly the functional
equivalent of such wording"). An administrator abuses its discretion when
it fails to afford a claimant a "full and fair review" of its decision to
deny her claim. See Crocco v. Xerox Corp., 137 F.3d 105, 108
(2d Cir. 1998) ("[W]e affirm the district court's judgment that Nazemetz
did not provide a `full and fair review' of APM's certification decision
(and hence, that Nazemetz's ratification of APM's decision was arbitrary
and capricious")); Shutts v. First Unum Life Ins. Co., __
F. Supp.2d __, available at 2004 WL 615134, at *6-8 (N.D.N.Y. Mar. 24,
2004); Cejaj v. Bldg. Serv. 32B-J Health Fund, No. 02 Civ.
6141, available at 2004 WL 414834 (S.D.N.Y. Mar. 5, 2004).
In her first cause of action, plaintiff claims Liberty's
denial of her claim for long-term disability benefits was an abuse of
discretion because, inter alia, it failed to disclose the
evidence supporting the decision, in violation of her right to a full
and fair review under 29 U.S.C. § 1133(2). Pursuant to
29 U.S.C. § 1133(2), a participant whose benefit claim has been denied must be
given "a reasonable opportunity . . . for a full and fair review by the
appropriate named fiduciary of the decision denying the claim." "The
purpose of the full and fair review requirement is to provide claimants with enough
information to prepare adequately for further administrative review or an
appeal to the federal courts." Juliano v. Health Maint. Orq. of
N.J., Inc., 221 F.3d 279, 287 (2d Cir. 2000) (internal quotations
and citations omitted). "At the very least, a full and fair review
requires that the fiduciary inform the participant or beneficiary of the
evidence that the fiduciary relied upon and provide an opportunity to
submit written comments or rebuttal documents." Lidoshore v. Health
Fund 917, 994 F. Supp. 229, 236-37 (S.D.N.Y. 1998) (internal
quotations and citation omitted).
Encompassed within a claimant's right to a full and fair review are the
various duties and obligations bestowed upon administrators by
29 C.F.R. § 2560.503-1. Liberty is correct that the version of § 2560.503-1
(f) in effect at all times relevant to this case provided only that a
denial notice contain statements relating to four areas: "(1) The
specific reason or reasons for the denial; (2) Specific references to
pertinent plan provisions on which the denial is based; (3) 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; and (4) Appropriate information as to the steps to be taken
if the participant or beneficiary wishes to submit his or her claim for
However, subsection (g) of the same regulation appears to have been
intended to supplement subsection (f)(4), and the mandates within were
without question part and parcel of an administrator affording a claimant
a full and fair review. Specifically, subsection (g)(1) provided that
every internal appeals procedure must allow "a claimant or [her] duly
authorized representative [to]: (i) Request a review upon written
application to the plan; (ii) Review pertinent documents; and (iii)
Submit issues and comments in writing." Id. § 2560.503-1(g)(1). Thus, per the controlling federal regulation,
plaintiff did indeed have an affirmative right to review documents
pertinent to her claim that Liberty has in its possession.
This is confirmed by the case law. Judge Ellen B. Burns, in an opinion
the relevant portion of which was affirmed by the Second Circuit, quoted
a Third Circuit decision it called "[t]he most widely accepted criteria
for what constitutes a full and fair review under ERISA" for the
proposition that the plan administrator "`must also inform the
participant of what evidence he relied upon and provide him with an
opportunity to examine that evidence and to submit written comments or
rebuttal documentary evidence." Crocco v. Xerox Corp.,
956 F. Supp. 129, 139 (S.D.N.Y. 1997), aff'd in relevant
part, 137 F.3d 105, 108 (2d Cir. 1998) (quoting Grossmuller
Int'l Union, UAW, 715 F.2d 853, 857-58 (3d Cir. 1983)). More recent
courts, citing Crocco, Grossmuller, or even the Second
Circuit's opinion, have agreed. See, e.g., Connell v. Guardian Life
Ins. Co. of Am. Severance Plan, No. 02 Civ. 7522, available at 2003
WL 21459563, at *3 (S.D.N.Y. June 24, 2003); Neely v. Pension Trust
Fund of Pension, Hospitalization & Benefit Plan of Elec. Indus.,
No. 00 CV 2013, available at 2003 WL 21143087, at *8 (E.D.N.Y. Jan. 16,
2003); Dittman v. Dyno Nobel, Inc. Defined Benefit Pension Plan
I, No. 97-CV-1724, available at 1999 WL 727464, at *10 (N.D.N.Y.
Sep. 10, 1999); DeVere v. Northrop Grumman Corp., No.
97-CV-3724, available at 1999 WL 182670, at *8 (E.D.N.Y. Mar. 24, 1999).
In this case, whether plaintiff had a right to review all pertinent
documents is irrelevant unless Liberty had a duty to inform her of that
right in the June 20, 2000, and/or October 18, 2001, denial letters. If
plaintiff had the right, but had to make a request in order to invoke it,
it is arguable that Liberty did not deprive her of a full and fair
review, as it disclosed that which plaintiff specifically requested after
the October 18, 2001, decision Dr. Weitz's report and the FCE and after the final decision
the entire claim file. If, however, Liberty was under a duty to
inform plaintiff of the right, then plaintiff was deprived of a full and
fair review because she was not so informed in the June 20, 2000, and/or
October 18, 2001, decisions.
It is arguable that the regulation in effect at the time itself
provides the answer. In the operative subsection, (g)(1), three rights
are listed the right to request review of a denial, the right to
review pertinent documents, and the right to submit written comments. The
second right, in issue here, does not list any affirmative action that a
claimant needs to take in order to "review pertinent documents." It
states only that the second right must be made available. If the drafters
of the regulation intended that a claimant needed to take an affirmative
step to invoke that right, it is assumed they would have said so, like
they did in the case of the first right, which provides that a claimant
must be afforded the opportunity to "request" review of an adverse
decision. The regulation does not state that a claimant has to make a
"request" to review pertinent documents in the administrator's
While the Second Circuit has not had occasion to address this issue
whether the administrator must inform the claimant of her right
to review pertinent documents, or whether the claimant must make a
request to do so the Fourth Circuit has, and its analysis and
reasoning in that regard are adopted. See Ellis v. Metro. Life Ins.
Co., 126 F.3d 228, 236-37 (4th Cir. 1997). In Ellis, the
claimant had requested review of the administrator's decision to deny
benefits, but it was unclear whether she made the more narrow request to
review the pertinent documents. Drawing from the language of
29 C.F.R. § 2560.503-1 (f)(4) which mandates that a denial notice
disclose to the claimant the appropriate steps for having a denial
reviewed the court held that "[a] plan administrator or fiduciary
must inform a claimant that, should she desire to submit her claim for review
following an initial denial, she is entitled to review the pertinent
documents upon which the initial decision was predicated." Id.
It could be argued that the drafters of the regulation themselves
acknowledged this with the enactment of the current version of
29 C.F.R. § 2560.503-1. In the current regulation, a distinction is made
between the required contents of an initial denial and a denial on
review, both of which are more extensive than the regulation in effect at
all times relevant to this case. In an initial denial, an administrator
must include the first three requirements of subsection (f) of the prior
regulation, plus an expanded version of the fourth requirement and two
additional requirements. Id. § 2560.503-1(g)(1)(i)-(vi). A
denial on review, however, must now be accompanied by "[a] statement 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." Id.
§ 2560.503-1(j)(3). A document is considered "relevant" if it: "(i)
Was relied upon in making the benefit determination; (ii) Was submitted,
considered, or generated in the course of making the benefit
determination; (iii) Demonstrates compliance with the administrative
processes and safeguards required . . . in making the benefit
determination; or (iv) In the case of a group health plan or a plan
providing disability benefits, constitutes a statement of policy or
guidance with respect to the plan concerning the denied . . . benefit for
the claimant's diagnosis, without regard to whether such advice or
statement was relied upon in making the benefit determination."
Id. § 2560.503-1(m)(8)(i)-(iv).
Because of the current regulation's distinction between an initial
denial and a denial on review, however, it could also be argued that the
drafters wanted to clarify that claimants have to be advised of their right to review pertinent or relevant
documents only in a denial on review, and not in an initial denial.
Nevertheless, it is the language of the prior regulation that controls,
unilluminated by the current version, and the prior regulation is most
properly read to require an administrator to inform a claimant, at
whatever level, of her right to review pertinent documents. Neither in
the June 20, 2000, initial denial letter, nor in the October 18, 2001,
letter denying reconsideration, did Liberty inform plaintiff of her right
to "review pertinent documents."
In any event, even if it is accepted from Ellis and a fair reading of
the prior version of the regulation that Liberty only had a duty to
advise plaintiff of her right to review pertinent documents in the
October 18, 2001, decision,*fn4 the conclusion is inescapable that such
a duty was breached. After the initial denial and before the October 18,
2001, decision, Liberty had at least the following in its possession: (1)
Dr. Weitz's independent medical examination; (2) the questions submitted
to Dr. Weitz regarding his report, and the answers he gave; (3) the
December surveillance report; (4) Dr. Lumpkin's peer review report; (5)
the transferable skills analysis; (6) the FCE; (7) the May surveillance
report; (8) the July surveillance report; and (9) Dr. Brown's peer review
Had Liberty informed plaintiff prior to issuing its final decision on
April 1, 2002, that she had a right to review pertinent documents, she
may well have requested all of the above materials. Instead, Liberty did not so inform plaintiff and she
received, only after repeated demands by counsel, Dr. Weitz's independent
medical examination and the FCE.
That Liberty did not explicitly identify all of these documents as
support for its October 18, 2001, decision does not alter the conclusion
that it had a duty to inform plaintiff of her right to review them. As
an initial matter, it is unclear whether Liberty named all of the
documents upon which it placed reliance in making its decision. Despite
having at least nine additional pieces of evidence in its possession
before rendering its October 18, 2001, decision (items (1) through (9),
supra), Liberty explicitly identified only three Dr.
Brown's review, Dr. Weitz's report (but not follow-up answers), and the
FCE. Though plaintiff did eventually receive copies of the latter two,
she did not receive, and was not advised of her right to receive, Dr.
Brown's report, on which heavy reliance was placed by Liberty, or any of
the other documents it had in its possession that were allegedly
consistent with its decision to deny benefits. It should also be noted
that Dr. Brown's report referenced several documents in Liberty's
possession, so had Liberty advised plaintiff of her right to review Dr.
Brown's report on which it did expressly rely plaintiff
may have discharged any duty on her part to request the other materials.
Also worthy of mention is the fact that the final denial letter of
April 1, 2002, explicitly cited as support for its conclusion evidence
from the first part of 2001 that was not cited in the October 18, 2001,
denial letter. The most prominent example of such evidence is the
surveillance reports, which were completed on December 22, 2000, May 12,
2001, and July 18, 2001, respectively, but which were not identified as
support in the October 18, 2001, denial letter. Thus, it is arguable that
evidence pre-dating October 18, 2001, that was identified only in the
final denial letter as support for the decision should have been
identified in the October 18, 2001, letter, and plaintiff should have been
informed of her right to review the same. Were it otherwise, Liberty
could simply just disclose one document as authority for its decision,
state that all other documents are not inconsistent with this decision,
and be forced to reveal its evidence only after a final decision has been
rendered. Such is incompatible with the purpose of requiring
administrators to develop and claimants to follow an internal appeals
procedure, to wit, to allow parties to resolve issues outside of federal
court through the free and open exchange of information relevant to a
disability benefits claim.
Liberty is quite correct that it does not have an obligation to name in
its denial letter every piece of evidence in its possession, and can just
rely upon certain documents, but only so long as it possesses no
documents contrary to its conclusion. If such documents exist, it has a
duty to reconcile their contents with its decision. Such a reconciliation
may have become necessary had plaintiff been able to receive and respond
to the undisclosed documents. In other words, even if submissions
plaintiff made thereafter were not directly aimed at the cited materials,
Liberty would have been obligated to respond because such submissions
were contrary to the conclusion reached by the cited materials. Whether
plaintiff could have mounted opposition to the conclusion by utilizing
the information in the undisclosed materials, or whether any contrary
submissions would have changed Liberty's decision, are both premature
inquiries at this stage. Plaintiff had a right to be informed of her
right to review pertinent documents and, if appropriate or possible,
attempt to rebut the materials that Liberty merely viewed as cumulative
of the cited materials.
Therefore, because it failed to advise plaintiff of her right to review
the evidence it had accumulated prior to its April 1, 2002, decision,
Liberty abused its discretion by depriving plaintiff of a full and fair review of the denial of her long-term
disability benefits. On that ground and that ground
alone plaintiff's motion for summary judgment will be
"[I]f upon review a district court concludes that [an administrator's]
decision was arbitrary and capricious, it must remand to the
[administrator] with instructions to consider additional evidence unless
no new evidence could produce a reasonable conclusion permitting denial
of the claim or remand would otherwise be a `useless formality.'"
Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir.
1995) (citations omitted).
Here, while Liberty's denial of benefits to plaintiff could, arguably,
be supported by the present record, such a record is incomplete, as it is
devoid of any rebuttal plaintiff would have had the opportunity to submit
had she not been denied a full and fair review. Therefore, whether
plaintiff was properly denied long-term disability benefits cannot yet be
determined. The matter must be remanded to the administrative level,
where plaintiff shall be permitted the opportunity to comment on and/or
submit rebuttal documents to the pertinent documents in Liberty's
possession that relate to her claim.
D. Reinstatement of Benefits
The parties agree that, if Liberty's decision to deny long-term
disability benefits was proper, plaintiff has no entitlement to
reinstatement of other benefits, which ceased when plaintiff was
terminated by Fleet Boston after she did not return to work. Resolution
of this claim must await Liberty's remand decision on disability
benefits. Therefore, defendants' and plaintiff's motions for summary judgment on the second
cause of action will be denied without prejudice to renew.
By failing to inform plaintiff of her right to review documents
pertinent to her claim for long-term disability benefits, Liberty has
improperly denied plaintiff a full and fair review and, therefore, abused
its discretion. The matter must be remanded to the administrative level
so that plaintiff is permitted to respond to the documents in Liberty's
possession that purportedly support or are not contrary to its decision,
before another decision is made as to her entitlement to long-term
Accordingly, it is
1. Defendants' motion for summary judgment is DENIED without prejudice
2. Plaintiff's cross-motion for summary judgment is GRANTED in part as
to her first cause of action and DENIED without prejudice to
renew as to her second cause of action;
3. Plaintiff's claim for long-term disability benefits is REMANDED to
Liberty so as to allow plaintiff a full and fair review of her long-term
disability benefits claim in accordance with this opinion;
4. Liberty is to render a decision on remand granting or denying
plaintiff long-term disability benefits, and file the same with the
Clerk's office, on or before November 1, 2004;
5. The parties may file and serve second summary judgment motions on or
before December 1, 2004; and 6. The failure to file and serve a second summary judgment motion shall
result in a judgment being entered dismissing the complaint with
IT IS SO ORDERED.