United States District Court, E.D. New York
GEORGE HACHTEL, Plaintiff,
THE CITIBANK, N.A., LONG TERM DISABILITY PLAN, THE CITIBANK, N.A., MEDICAL PLAN, THE CITIBANK, N.A., DENTAL PLAN, THE CITIBANK, N.A., LIFE INSURANCE PLAN, THE CITIBANK, N.A., ACCIDENT INSURANCE PLAN, THE CITIBANK, N.A., SAVINGS INCENTIVE PLAN Defendant(s).
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
MEMORANDUM AND ORDER
Before this Court are two motions:
1. Citibank Long Term Disability Plan (the "LTD
Plan"), and Citibank Medical Plan, Citibank Flexible
Benefits Plan, Citibank Dental Plan, Citibank Life
Insurance Plan, Citibank Accident Insurance Plan, and
Citibank Retirement Plan ("Non-LTD Plans"),
(collectively "Defendants"), move for summary
judgment pursuant Fed.R. Civ. P. 56(c); and,
2. George Hachtel ("Plaintiff" or "Hachtel")
cross-moves for summary judgment pursuant to
Fed.R.Civ. P. 56(c).
For the following reasons, both Defendants' and Plaintiff's
motions are DENIED.
A. Factual Background
Prior to and including November 14, 1994, Plaintiff was
employed as a Systems Programmer in the Information Management
Systems at Citibank. (Defs. 3rd Amend. Rule 56.1 Statement at
¶¶ 23-4; Pl. 2nd Amend. Rule 56.1 Statement at ¶¶ 1-2).
Plaintiff was a covered participant of the LTD Plan by virtue of
his employment with Citibank. The LTD Plan is sponsored and
funded by Citibank and administered by Aetna Life Insurance
Company ("Aetna"). (Defs. 3rd Amend. Rule 56.1 Statement at
¶¶ 16-7; Green Aff., Exh. U). Aetna acts as the LTD Plan
administrator and fiduciary. (Id.) Both the LTD and Non-LTD
Plans are employee pension or welfare benefit plans subject to
the Employee Retirement Income Security Act of 1974 ("ERISA").
(Defs. 3rd Amend. Rule 56.1 Statement at ¶¶ 1-8).
Plaintiff alleges that on or about 1993, he developed a
flu-like illness which caused him to suffer severe sore throat
problems, extreme and debilitating exhaustion, lightheadedness
and dizziness. (Montas Aff., Exh. A at 2). In December of 1993, Plaintiff sought medical treatment for
these symptoms at his HMO medical center. Over the course of the
next year, Plaintiff was seen by several different types of
physicians in diverse areas of practice. (Montas Aff., Exh. A at
Plaintiff alleges that his condition subsequently worsened and
he began to suffer from constant fatigue, weakness and severe
cognitive impairments requiring him to sleep excessively and take
several sick days. Plaintiff's doctors informed him that he could
have chronic fatigue syndrome ("CFS") or major depression.
(Id.) In November of 1994, Plaintiff joined a support group for
CFS, wherein he learned about a specialist in this area by the
name of Dr. Susan Levine ("Dr. Levine"). (Id.) Plaintiff
consulted with Dr. Levine, and she diagnosed him with CFS and
prescribed a treatment regimen of medications and vitamin
injections. (Id.; Hachtel Dep. at 112, 114-5). Despite this
treatment, Plaintiff's symptoms continued to increase in severity
and on November 14, 1994, Plaintiff ceased working. (Montas Aff.,
Exh. A at 2; Hachtel Aff. at 77, 79-82, 126-7).
On November 17, 1994, Plaintiff was evaluated at an HMO medical
center by his own doctor, psychiatrist Dr. Deborah Pfeffer ("Dr.
Pfeffer"). (Defs. 3rd Amend. Rule 56.1 Statement at ¶ 31;
Bonner Aff. Exh. C). Dr. Pfeffer ruled out depression as the
cause of Plaintiff's symptoms and found that Plaintiff had CFS and Adjustment Disorder mixed with "emotional feelings."
Plaintiff notified Aetna of his condition and his absence from
work, indicating that he would first exhaust his sick days, then
his vacation days, as required by the Short Term Disability Plan
("STD Plan") and the LTD Plan. The LTD Plan provides benefits to
disabled employees beginning on the 181st day of disability,
after the employee has received coverage under the STD Plan.
Under the LTD Plan, "disability" is defined, in pertinent part,
a mental or physical condition which the Claims
Administrator/Fiduciary determines: (i) prevents the
Participant from performing each and every material
duty pertaining to his or her regular occupation (and
after 24 consecutive months of such condition
prevents the Participant from engaging in each and
every occupation or employment for wage or profit for
which Employee is reasonably qualified by reason of
education, training or experience or may reasonably
(Green Aff., Exh. A, "LTD Plan").
Likewise, the LTD Plan provides that a Claims
Administrator/Fiduciary may require the employee to undergo an
independent medical examination ("IME") by a doctor designated
by the LTD Plan. (Id.)
Aetna made a decision to deny certification of Plaintiff's
disability pending an IME by a specialist in infectious diseases.
(Defs. 3rd Amend. Rule 56.1 Statement at ¶¶ 26-7). Plaintiff underwent the IME in
December 1994. (Id. at 27; Bonner Aff., Exh. B). Dr. Arthur
Klein ("Dr. Klein"), who performed the IME, disagreed with the
diagnosis of CFS, but found Plaintiff was disabled due to
depression and headaches, secondary to chronic sinusitis. (Id.
at 28). Dr. Klein then recommended that Aetna certify Plaintiff's
disability pending evaluation by a neurologist and psychologist.
(Id. at 29). Following this evaluation, Aetna informed
Plaintiff that it would certify his disability until January 16,
1995. (Montas Aff., Exh. A at 4).
In February 1995, pursuant to Aetna's instructions, Plaintiff
was seen by a neurologist, Dr. Kristina Dahl ("Dr. Dahl"), who
diagnosed Plaintiff again with CFS as well as symptoms associated
with depression. (Bonner Aff., Exh. D). Dr. Dahl indicated that
Plaintiff remained disabled due to his physical and cognitive
disabilities. (Id.) The claim file contains notes from Aetna's
Medical Director, Dr. Joseph Pascuzzo ("Dr. Pascuzzo"), which
stated that no significant physical findings were noted in Dr.
Dahl's report. (Defs. 3rd Amend. Rule 56.1 Statement at ¶
34). Further, the cognitive defect could be on a medical or a
psychiatric level. (Id.) Aetna notified Plaintiff that it would
continue to certify his disability through March 3, 1995. (Id.
at ¶ 33).
On April 12, 1995, however, Aetna declined to certify
additional disability time for Plaintiff until he underwent additional
testing. (Id. at ¶ 45). Pursuant to this requirement, Plaintiff
met with an Aetna rehabilitation nurse, Arlene Mackey ("Nurse
Mackey"), so she could perform a Functional Capacity Evaluation
("FCE"). (Montas Aff., Exh. A at 7). Plaintiff, however, was too
weak to perform the FCE and Nurse Mackey relayed to Aetna that
Plaintiff was not capable of work due to his disability. (Id.)
Aetna then scheduled a medical examination for Plaintiff with a
neuropsychologist, Dr. Avraham Calev ("Dr. Calev"), in May 1995.
(Bonner Aff., Exh. E). Dr. Calev also found that Plaintiff
suffered from CFS and depression, although he made no finding
with regard to Plaintiff's disability. (Id.)
Plaintiff's entire file was then reviewed by one of Aetna's
in-house physicians, Dr. David Erickson ("Dr. Erickson"), who
recommended that Aetna certify the disability. (Montas Aff., Exh.
A at 10-11). Aetna suggested that Plaintiff begin rehabilitation
on June 16, 1995. (Defs. 3rd Amend. Rule 56.1 Statement at ¶
46). Plaintiff began such rehabilitation three times per week,
and Aetna again extended its certification until August 31, 1995.
Plaintiff continued his rehabilitation, and Dr. Pascuzzo once
again certified Plaintiff's disability until the end of
September, 1995. (Defs. 3rd Amend. Rule 56.1 Statement at ¶
In a series of reports from August 22 to September 20, 1995,
the physical therapist reported that Hachtel had increased his
endurance, had responded well to weight training, had more
energy, was better able to sleep, had increased his strength, and
had reported a decrease in fatigue and dizziness. (Defs. 3rd
Amend. Rule 56.1 Statement at ¶¶ 51-55). On September 27, 1995,
after reviewing the claim file, Dr. Pascuzzo recommended that
Plaintiff's disability should not be certified beyond September
30, 1995. (Id. at 56). He also ordered an IME of Plaintiff by
Dr. Philip Su ("Dr. Su"), an independent board-certified
neurologist. (Id.) On October 25, 1995, Dr. Su performed a
medical examination and determined that Plaintiff was not
disabled. (Id. at 64; Bonner Aff., Exh. F). On the basis of Dr.
Su's examination of Plaintiff, Dr. Pascuzzo determined on
November 7, 1995 that Plaintiff was no longer disabled under the
definition of the LTD Plan and terminated Plaintiff's LTD
benefits as of September 30, 1995. (Defs. 3rd Amend. Rule
56.1 Statement at ¶ 67).
On December 7, 1995, Plaintiff (through counsel) requested a
review of Aetna's denial of benefits. (Bonner Aff., Exh. H).
Aetna Medical Director, Dr. Matthew Kasprenski ("Dr. Kasprenski")
reviewed the appeal. Dr. Kasprenski determined: "It is clear
based on the IME evaluation that there was no objective evidence
of disability both from the physical and psych standpoint. In
fact, part of the therapy for CFS is to return the patient to
work as soon as possible." (Defs. 3rd Amend. Rule 56.1 Statement at ¶ 73;
Bonner Aff., Ex. A.) In a letter dated February 9, 1996, Aetna
informed Hachtel's counsel that Plaintiff's denial of benefits
was upheld. (Id. at ¶ 74).
At Plaintiff's request, Aetna considered the following
additional information submitted by Plaintiff's attorneys in
November 1996: a report from Dr. Levine, a Neuropsychological
Evaluation by Dr. Calev, a report by Dr. Dahl, and a Tilt Table
Lab Report by Dr. Daniel Bloomfield. (Defs. 3rd Amend. Rule
56.1 Statement at ¶ 76). The Tilt Table Report showed
"vasodepressor syncope," which is a "markedly positive" result.
(Pl. 2nd Amend. Rule 56.1 Statement at ¶ 63; Bonner Aff.,
Exh. J). A third Aetna Medical Director, Dr. Robert Bonner ("Dr.
Bonner") was referred Hachtel's file in January 1997. (Defs.
3rd Amend. Rule 56.1 Statement at ¶ 77). Plaintiff's counsel
submitted an additional letter from Dr. Levine on January 27,
1997. Aetna then reviewed the entire file and on April 21, 1997,
issued a final determination to uphold the denial of Plaintiff's
benefits under the LTD Plan. (Id. at ¶ 81).
B. Procedural Background
Plaintiff filed suit on August 24, 1998, seeking recovery of
benefits to which he alleges he is entitled pursuant to the LTD
and Non-LTD Plans. On August 21, 2001, this Court denied Defendants' first motion
for summary judgment because the depositions of several
evaluating physicians had not yet been completed.
Upon conducting additional discovery, Defendants filed a second
motion for summary judgment, and Plaintiff filed a cross-motion
for summary judgment. The Court heard oral argument on these
second motions on January 24, 2003, but both motions were
withdrawn, without prejudice to renew, because Plaintiff had not
yet had the opportunity to depose Dr. Su. The instant motions are
a renewal of the second motions, and both parties have submitted
supplemental briefs as well as a transcript from Dr. Su's
A. Standard for Summary Judgment
A motion for summary judgment may not be granted unless the
court determines that there is "no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The court must resolve all ambiguities
and draw all inferences in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Castle Rock Entm't, Inc. v. Carol Pulb'g Group, 150 F.3d 132,
137 (2d Cir. 1998). If there is any evidence in the record from
which a reasonable inference could be drawn in favor of the
non-moving party on a material issue of fact, summary judgment is
improper. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37
(2d Cir. 1994).
B. The Employment Retirement Income Security Act (ERISA)
Where an ERISA plan grants an administrator discretionary
authority to determine eligibility for benefits, as is the case
here, the standard of judicial review is deferential and limited
in scope. Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst.,
46 F.3d 1264, 1271 (2d Cir. 1995). Courts must not "disturb the
administrator's ultimate conclusion unless it is `arbitrary and
capricious.'" Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d
Cir. 1995); see also Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). "Under the arbitrary and capricious
standard of review, [a Court] may overturn a decision to deny
benefits only if it was `without reason, unsupported by
substantial evidence or erroneous as a matter of law' . . .
[t]his scope of review is narrow, thus [Courts] are not free to
substitute [their] own judgment for that of the [administrator]
as if [they] were considering the issue of eligibility anew."
Pagan, 52 F.3d at 442 (citations omitted). Courts have found
that the "substantial evidence" needed to support an administrator's decision to deny
benefits means "evidence that a reasonable mind might accept as
adequate to support the conclusion reached by the [decision maker
and] . . . requires more than a scintilla but less than a
preponderance." Miller v. United Welfare Fund, 72 F.3d 1066,
1072 (2d Cir. 1995) (citation omitted).
In determining whether Defendants were "arbitrary and
capricious" in their termination of Plaintiff's benefits, this
Court may only look at the facts and information presented to
Aetna, the plan administrator, at the time of Aetna's review.
Miller, 72 F.3d at 1071. To aid in this determination, listed
below is the assessment by the relevant physicians and experts of
Plaintiff's medical condition:
Dr. Levine (Specialist chosen by 10/94 CFS; regimen of
Dr. Pfeffer (Plaintiff's own physician) 11/94 CFS and adjustment
disorder; ruled out depression
Dr. Klein (IME) 12/94 No CFS; found
disabled due to depression and
headaches; recommended evaluation
by neurologist and psychologist
Dr. Dahl (Independent neurologist, 2/95 CFS and other
referred by Dr. Levine) symptoms associated with
Plaintiff was disabled. Nurse Mackey (Retained by Aetna to 3/95 Plaintiff was not
administer Functional Capacity capable of work due to his
Dr. Calev (Aetna neuropsychologist) 5/95 CFS and depression;
did not address disability; "Good
chance [Hachtel's symptoms] will
greatly improve with treatment."
Dr. Erickson (Aetna in-house physician) 6/95 Reviewed Plaintiff's
report; found physical
recommended Aetna certify th
Physical therapist 8/95 to 9/95 Reported
increased strength, endurance,
Dr. Su (IME) 10/95 No CFS; found
Plaintiff was no longer disabled.
C. The LTD Plan
The issue this Court must determine is whether Aetna's decision
to terminate Hachtel's LTD benefits was arbitrary and capricious.
Aetna argues that it was presented with conflicting and often
contradictory medical evidence regarding the nature of Hachtel's
condition and the extent of his incapacity to work. In addition,
much of this medical evidence was based on Hachtel's
self-reported subjective symptoms. Further, once Plaintiff's
disability benefits were denied, three Aetna Medical Directors
(Drs. Pascuzzo, Kasprenski and Bonner) reviewed the entire claim
file on appeal and separately concluded that after September 30,
1995, Hachtel was not disabled based on Dr. Su's exam and report, and the findings of the physical therapist detailing Plaintiff's
Plaintiff, however, asserts that there was overwhelming medical
evidence supporting the granting of his LTD benefits. Plaintiff
highlights the fact that all but one of the doctors who
personally met with and examined Plaintiff found he was
disabled. (See Chart, supra at 11-12). Drs. Levine, Pfeffer,
and Dahl all found that Plaintiff was disabled due to CFS. Dr.
Klein, although not diagnosing Plaintiff with CFS, found he was
disabled due to depression. Dr. Erickson, in reviewing
Plaintiff's report, recommended Aetna certify Plaintiff's
disability. Dr. Calev diagnosed Plaintiff with CFS, but made no
finding regarding his disability. Dr. Su, however, was the only
doctor who personally examined Plaintiff and did not find him to
Taking into account both Defendants' and Plaintiff's arguments,
there are conflicting issues of material fact which preclude
summary judgment. Namely, in light of the unanimity of findings
by Plaintiff's and Aetna's physicians that Plaintiff was disabled
within the meaning of the LTD Plan (whether due to CFS,
depression or both), whether Dr. Su's report and exam, in
conjunction with the physical therapist's status reports
detailing Plaintiff's improvement, provide "substantial evidence"
upon which to deny Plaintiff's LTD benefits. First, although Dr. Su is a board-certified neurologist, his
exam of Plaintiff appears to have been cursory and much less
comprehensive and thorough then the reports of Drs. Dahl and
Calev. For example, Dr. Su stated in his report that Plaintiff
had "no impairment in his cognitive function," but subsequently
admitted in his deposition that the "mini mental status exam" he
performed on Plaintiff was not sufficient to definitely rule out
the existence of cognitive deficits. (Su Dep. at 69). Second,
although the physical therapist's status reports state that
Plaintiff was improving, the improvement was moderate, and the
reports and notes reveal that Plaintiff continued to complain of
and experience symptoms such as fatigue, dizziness and minimal
functional capacity. (Montas Aff., Exh. B). Accordingly,
questions of fact remain which warrant a hearing before this
Court, and therefore, summary judgment is inappropriate.
Defendants' argue, however, that the facts in the instant case
are analogous to the facts in Bressmer v. Federal Express Corp.
Long Term Disability Plan, No. 98-4508, 1999 U.S. Dist. LEXIS
20708 (E.D.N.Y. 1999) (Platt, J.), wherein this Court found that
the plan administrator was entitled to summary judgment. In
Bressemer, however, the plaintiff underwent a "battery of
examinations" which revealed that she was not totally disabled
and a "plethora of experts" agreed. Id. at *3, *10. Further,
there were "conflicting assessments" between plaintiff's and defendant's physicians as to whether
plaintiff was actually disabled. Id. at *7-*12.
Here, there was no "battery of examinations" or "plethora of
experts" supporting Aetna's determination that Plaintiff was not
disabled. To the contrary, apart from Dr. Su's cursory IME and
some physical therapy reports, a majority of doctors, both
Plaintiff's and Aetna's, found that Plaintiff was disabled. In
addition, although there were conflicts between Plaintiff's
doctors as to whether he was suffering from CFS, depression or
some combination of the two, there was never any conflict as to
whether Plaintiff was, in fact, disabled within the meaning of
the LTD Plan. In that respect, a majority of doctors, both
Plaintiff's and Aetna's, found a disability. Accordingly, this
Court's decision in Bressemer is inapplicable to the instant
action and summary judgment is denied for both parties.
For the foregoing reasons, both Defendants' and Plaintiff's
motions are hereby DENIED.
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