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June 4, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  Plaintiff Louise Harris, M.D. ("plaintiff") brought suit against defendants First Unum Life Insurance Company ("First Unum"), UnumProvident Corporation, and Unum Life Insurance Company of America (collectively, "defendants"), challenging the termination of her long-disability benefits under a group insurance policy administered and payable by First Unum, in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et. seq. Defendants have moved for "judgment on the administrative record."*fn1 (Docket No. 60.) Plaintiff opposed and cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56. (Docket No. 62.) Oral argument was heard on June 2, 2004, in Albany, New York. Decision was reserved.


  Plaintiff worked as an anesthesiologist at Glens Falls Hospital ("Hospital"). On March 16, 1998, her treating allergist, Dr. Michael Slaughter ("Dr. Slaughter"), diagnosed her with a latex allergy. After several unsuccessful attempts to return to work, plaintiff stopped working altogether in May 1998. She was covered under both an individual disability insurance policy, administered and payable by Provident Life Accident & Insurance Company ("Provident Life"), and a group insurance policy, administered and payable by First Unum. The First Unum policy, which is at issue here, guarantees long-term disability benefits upon proof that she, by reason of disability, "cannot perform each of the material duties of [her] regular occupation." (Admin. Rec. at 67.)

  In May 1998, plaintiff applied to both Provident Life and First Unum for disability benefits, claiming she was unable to perform her job duties due to "shortness of breath wheezing on entering Hospital." Id. at 632-33. In support, she submitted medical records by Dr. Slaughter, who opined a primary diagnosis of "latex induced asthma," Id. at 634, and her treating pulmonary physician, Dr. Desmond DelGiacco ("Dr. DelGiacco"), who stated that she had a latex allergy as well as chronic asthma. First Unum claims it "accepted the representations of plaintiff and her physicians and approved payment of monthly disability benefits, beginning August 3, 1998." (Docket No. 60, Attach. 21, p. 3.)*fn2 Provident Life had yet to make a determination on plaintiff's claim under her individual policy.

  In October of 1998, plaintiff had the first of two examinations at Johns Hopkins Asthma & Allergy Center ("Johns Hopkins") in Baltimore, Maryland. This evaluation resulted in the conclusion that, although plaintiff's clinical history seemed to suggest a latex allergy, lab testing did not support the same, and any asthma she had was likely due to construction at the Hospital. Shortly after the October 1998 evaluation, which was not in Provident Life's possession, plaintiff was denied disability benefits under her individual policy. Plaintiff was thereafter examined at both Johns Hopkins, where the doctors essentially adhered to their prior conclusion, and at the Mayo Clinic, where doctors concluded she could return to work without restrictions, stating that her subjective complaints were not borne out in test results, and that any problems (asthmatic or otherwise) she was having were likely due to construction at the Hospital. The doctors found no evidence of a latex allergy, and no need for plaintiff to avoid using latex gloves. First Unum was not aware of the Johns Hopkins or Mayo Clinic evaluations.

  On July 15, 1999, plaintiff filed a diversity suit in federal court against Provident Life, after her administrative appeal was denied. She claimed the failure to pay benefits was a breach of contract. Around May 2000, First Unum claims it first began to question whether plaintiff was disabled under the policy.*fn3 A registered nurse reviewed plaintiff's file and concluded that there was no concrete evidence of a severe latex allergy. The record was forwarded to Dr. Leonard Sutton, who recommended plaintiff's file be reviewed by an allergist. The file was thereafter forwarded to Lawrence Du Buske ("Dr. Du Buske"), an allergist, who reviewed office treatment notes, lab reports, pulmonary function tests, allergy tests, chest x-rays, CT scans, consultative evaluations, correspondence from plaintiff and her treating physicians, Dr. DeMasi's medical examination, and surveillance footage of plaintiff from August 1998. He noted that the "gold standard" test for asthma detection came back negative, and that even if she did have asthmatic symptoms, they were likely caused not by a latex allergy, but by sensitivity to aspirin and a restriction of her airways caused by irritants from the construction at the Hospital where she worked. In any event, Dr. Du Buske opined that a latex allergy alone would not render her disabled under the policy, as the policy was only occupation specific (not site-specific) and many hospitals provided for latex-free environments. He claimed her symptoms were subjective only, as reported to her treating physicians, with little to no objective support.

  By letter dated October 4, 2000, First Unum terminated plaintiff's benefits as of November 2, 2000. In pertinent part, the letter stated: "Although you may have impairments resulting from your self-reported symptomology, your history of aspirin sensitivity, allergy to dust mites, and history of nasal polyposis, it is our determination that the impairments are not severe enough to preclude your ability to return to work in your own occupation as an anesthesiologist. Moreover, the medical records do not conclusively or objectively support your claimed condition of `latex induced asthma.'" (Admin. Rec. at 425.)

  By letter dated January 4, 2001, plaintiff administratively appealed the revocation of benefits through counsel, attaching in support several documents from the Provident Life case, including the complaint, the deposition testimony of Dr. Slaughter and Dr. DelGiacco, and two expert reports.

  On March 5, 2001, First Unum received, for the first time, the medical records and reports from Johns Hopkins and the Mayo Clinic, nearly three years after the last of which was issued. It referred plaintiff's file, along with the newly acquired records and reports, to Dr. Steven Feagin ("Dr Feagin") for review. Dr. Feagin concluded that her claim of disability was mostly self-reported, that she had no objectively demonstrable allergy to latex, that no restrictions relating thereto need be imposed for her to work, and that there was no objectively documented severe or frequent asthma attacks that would prevent her from working full-time without restrictions.

  On March 8, 2001, First Unum reaffirmed its denial of benefits, stating that the new information submitted by plaintiff did not change its conclusion that she had no objectively demonstrated allergy to latex or that her condition in any way would prevent her from working without restrictions.

  On September 19, 2001, partial summary judgment was granted in plaintiff's favor in her suit against Provident Life. Harris v. Provident Life Accident & Ins. Co., 166 F. Supp.2d 733 (N.D.N.Y. 2001). In the decision, it was noted that plaintiff was not precluded from arguing disability due to asthma, because she had reported symptoms related to asthma, and her treating physician had concluded she had "latex induced asthma." Id.*fn4 Because Provident Life had focused only upon latex allergy, and not on the question of whether plaintiff was disabled from working due to asthma, upon which her doctors had issued opinions, summary judgment was granted in her favor on the issue of liability, Id.*fn5

  In light of this decision, plaintiff again requested reconsideration of First Unum's revocation of her benefits. The file was again referred to Dr. Feagin, who adhered to his previous conclusions. On Novembers, 2001, First Unum informed plaintiff it found "no objectively demonstrated latex allergy or from some other cause, that would prohibit [her] from performing her occupation as an anesthesiologist in a full-time capacity." (Admin. Rec. at 116.) On March 1, 2002, ...

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