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.
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. ...