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SORON v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

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

I. INTRODUCTION

  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 action).

  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 condition.*fn1

  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 523.)

  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. Weitz.

  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. ...


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