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United States District Court, S.D. New York

April 18, 2005.

MARK WINKLER, Plaintiff,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Mark Winkler filed this action under the Employee Retirement Income Security Act of 1974 ("ERISA") against the claims administrator of his employee benefits plan, Metropolitan Life Insurance Co. ("MetLife"), for failure to grant him long-term disability coverage.*fn1 Winkler now moves for summary judgment declaring that MetLife improperly denied his application for benefits. MetLife cross-moves for summary judgment dismissing the complaint. For the following reasons, Winkler's motion is denied and MetLife's motion is granted. II. BACKGROUND*fn2

  Winkler is a 45-year-old man who has been HIV positive for over ten years. He sees a physician regularly and takes a number of HIV medications.*fn3 Winkler worked as a Vice President and Senior Creative Director for Jack Morton Company ("Jack Morton") until October 10, 2001, when he was terminated during a reduction in force ("RIF") that eliminated the positions of approximately 400 employees.*fn4

  Winkler alleges that his health began to deteriorate as early as January 2001, due to the worsening of his viral infection and attendant depression.*fn5 He also claims that adverse reactions to medications he was taking exacerbated his condition, and he began to experience difficulty sleeping, uncontrolled diarrhea, and an inability to concentrate.*fn6 Winkler states that these symptoms made him "increasingly hard to deal with" at work, and in July 2001, his treating physician, Dr. Stephen Dillon, advised him to leave his job.*fn7 Winkler continued working, however, even though in his "deteriorated and agitated state" his work product and relationships with co-workers began to suffer.*fn8

  According to Winkler, his declining performance eventually became intolerable, prompting MetLife to terminate his employment in October 2001.*fn9 MetLife disputes this claim, arguing that Winkler was terminated solely because the RIF eliminated his position.*fn10 However, it is undisputed that, following his termination, Jack Morton hired Winkler to work for the company on a freelance basis.*fn11 This arrangement lasted only for approximately five days and the parties offer conflicting explanations for its brevity. Winkler asserts he was unable to function, "even in the reduced capacity of a freelancer,"*fn12 but a Jack Morton representative told MetLife that Winkler's contribution to the project was completed, after which it was simply "more cost effective to bring that work in-house."*fn13

  A. The Plan

  Winkler participated in the Jack Morton Company Employee Welfare Plan (the "Plan"), which provides eligible employee-participants with long-term disability ("LTD") benefits. Under the Plan, `disability' means that "due to an injury or sickness, you require the regular care and attendance of a Doctor and . . . you are unable to perform each of the material duties of your regular job . . ."*fn14 The Plan provides that all benefits end on the date employment ends, which occurs when the employee "cease[s] active work."*fn15 An employee is considered "actively at work" on "any day in which [he is] performing in the usual way all the regular duties of [his] work."*fn16 B. Initial Benefits Review

  Winkler applied for LTD benefits in January 2002, three months after his termination, claiming disability resulting from HIV and depression.*fn17 His application form listed the following treating physicians: Dr. Dillon, a general practitioner who had been treating Winkler's HIV since 1998, and Dr. Jack Almeleh, who Winkler began seeing in November 2001 for depression. Winkler also noted that he had undergone psychotherapy for depression from August 2000 to November 2001 with Judith Clarke, M.S.W.*fn18 On an Attending Physician Statement ("APS"), Dr. Dillon opined that Winkler's severe fatigue, short-term memory loss, inability to concentrate, and depression rendered him totally disabled, unable to work even a single hour in a day.*fn19 In a separate letter, Dr. Dillon indicated that Winkler's condition had begun to deteriorate in the summer of 2001.*fn20

  An APS from Dr. Almeleh, whose initial date of treatment with Winkler was nearly a month after Winkler was laid off, echoes Dr. Dillon's assessment that Winkler's depression and HIV left him totally unable to work in any capacity.*fn21 Judith Clarke furnished a letter stating that Winkler's symptoms of depression began deteriorating as early as July 2001.*fn22

  In evaluating Winkler's claim, MetLife referred the file to a MetLife nurse consultant who recommended obtaining additional medical and employment information.*fn23 Accordingly, MetLife requested additional medical and clinical records from Drs. Dillon and Almeleh.*fn24 MetLife next contacted Jack Morton's Human Resources Department. In response to inquiries about the nature of Winkler's termination, Jack Morton representatives stated unequivocally that he was terminated solely as part of a RIF, there had been "no significant change" in his performance at the time, nor did he demonstrate an inability to do his job.*fn25 In these communications MetLife also learned of Winkler's post-termination independent contract work for the company.*fn26

  In light of the information before it, Met Life concluded that Winkler was not disabled under the Plan because his inability to work was not supported by any objective medical records.*fn27 MetLife's denial letter noted in particular that Winkler was able to work on a daily basis for years despite his HIV; that he was hired to do independent contract work following his termination; and that representatives of Jack Morton had stated that Winkler was laid off solely due to the company's RIF.*fn28 The denial letter further noted that Winkler did not file his LTD claim until January 2002, whereas the Plan specifies that his eligibility for benefits ended on the date he last worked, which was October 10, 2001.*fn29 C. The Appeal Process

  In preparation for an appeal, Winkler's attorney requested pertinent documents from MetLife, including the criteria MetLife used in determining the extent of his disability.*fn30 MetLife's LTD case manager Althea Jones produced certain documents from the claim file, including medical documentation and a diary review containing the telephone calls, e-mails, and referrals relating to his application. She enclosed a letter reasserting MetLife's position that Winkler failed to show a sufficient decline in his health prior to being terminated.*fn31 However, Jones did not, as Winkler had requested, produce the criteria used by MetLife to determine Winkler's disability, or the "directives and policy statements addressed to MetLife claim handlers regarding the evaluation of disability claims involving HIV and/or depression."*fn32 Instead, Jones provided a statement of the information Winkler would need to furnish to perfect his claim.*fn33 Winkler appealed his denial of benefits by letter in October 2002,*fn34 enclosing a report from Sanford Drob, Ph.D., a clinical and forensic psychologist who examined Winkler in July 2002.*fn35 Dr. Drob opined that although Winkler's own statements suggested "an exaggerated effort to appear disabled," he was nonetheless "psychologically disabled from performing his job functions some time prior to the date of his termination."*fn36

  To counter MetLife's determination that he was terminated solely because of the RIF, Winkler forwarded MetLife statements written by former co-workers, including one of his supervisors at Jack Morton.*fn37 These narratives recount changes in Winkler's attitude and his ability to handle his professional responsibilities.*fn38 They tell the story of a man becoming uncharacteristically argumentative and erratic, displaying increasing difficulty communicating and making decisions.*fn39 A woman who worked with Winkler during his last few days as an independent contractor described his altered demeanor and behavior as simply "bizarre."*fn40

  In processing the appeal, MetLife referred Winkler's claim to Dr. Gary Greenhood, an independent medical consultant who is Board Certified in internal medicine and infectious diseases.*fn41 MetLife asked Dr. Greenhood to review Winkler's medical reports and determine whether he was indeed totally disabled due to HIV.*fn42 While it remains unclear exactly what documents were sent to Dr. Greenhood,*fn43 the record suggests that he received not only the nurse consultant diary, but also Dr. Dillon's office visit notes and lab reports.*fn44 After reviewing the materials before him, Dr. Greenhood was "unable to identify a severity-of-illness sufficiently severe to preclude regular work." He found that there had been no "significant clinical changes" in Winkler's viral condition in the time leading up to his termination. Dr. Greenhood also suggested that Winkler was "asymptomatically infected" with HIV.*fn45

  According to MetLife, its nurse consultant also conferred with an independent consulting physician, Dr. Ian Lipsitch, about Winkler's purported symptoms of depression.*fn46 After reviewing documents related to Winkler's psychological problems, Dr. Lipsitch concluded that there was no clear indication in the record that Winkler suffered a degree of psychological impairment while working that would have rendered him unable to carry out his professional tasks.*fn47 Rather, Dr. Lipsitch found that the record only substantiated that Winkler's symptoms worsened after he was terminated.*fn48 Dr. Lipsitch also questioned the validity of Dr. Drob's report, noting that the forensic psychologist did not examine Winkler until more than nine months after Winkler stopped working.*fn49

  Following these consultations, MetLife notified Winkler that in light of the new medical reports submitted and obtained, it had decided to maintain its original claim determination.*fn50 Specifically, MetLife noted that Winkler's supplemental medical reports failed to corroborate a severity of illness or side effects from medication that would have rendered him totally disabled prior to the termination of his LTD coverage.*fn51 MetLife's letter outlined Winkler's right to further appeal its decision.*fn52

  Winkler's counsel contacted MetLife again in January 2003, requesting all materials relating to his claim that had not yet been furnished. MetLife supplied additional documents later that month.*fn53 Winkler then supplemented his appeal with additional medical information, including a new report by Dr. Almeleh.*fn54 This report contained Dr. Almeleh's conclusion — which MetLife had already reviewed in an earlier Attending Physician Statement*fn55 — that in November 2001, when the doctor first examined Winkler, he exhibited symptoms of depression rendering him "totally unable to work in any capacity at all."*fn56

  MetLife's Appeal Unit then referred Winkler's claim to an independent psychologist, Dr. John Shallcross.*fn57 After reviewing a wealth of medical information and narratives written by Winkler's friend's and co-workers on his behalf,*fn58 Dr. Shallcross ultimately recommended that the file be referred to a psychiatric consultant to address the issue of possible side effects from medication.*fn59 However, Dr. Shallcross's report also highlighted the fact that none of the psychological test results in the file reflected Winkler's condition while he was employed at Jack Morton.*fn60 Indeed, the only available treatment notes for the period leading up to Winkler's termination were those of Dr. Dillon, which, according to Dr. Shallcross, did not reflect an "impairing psychopathology prior to [the date Winkler last worked]."*fn61 Dr. Shallcross further remarked that despite reports from Winkler's treating physicians indicating a deterioration in his mental and nervous condition as early as July 2001, there was no objective evidence or results to indicate total disability during this period.*fn62

  Following Dr. Shallcross's suggestion, MetLife referred the file to psychiatrist Bettina Kilburn, M.D., who reviewed much of the same material evaluated by Dr. Shallcross, including Dr. Dillon's treatment notes.*fn63 Dr. Kilburn concurred with Dr. Shallcross, declaring that the evidence failed to "reflect an impairing psychopathology prior to [Winkler's termination]" and commenting on the fact that there were no mental health treatment notes describing the claimant's condition prior to that date.*fn64 She noted the lack of cognitive or neuropsychological testing, ultimately concluding that the available information was "insufficient to definitively demonstrate severe or deteriorated cognitive functioning prior to [termination]."*fn65 After reviewing all this evidence, including the new evaluations of doctors Shallcross and Kilburn, MetLife upheld its original claim determination.*fn66


  A. Summary Judgment Standard

  Summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn67 An issue of fact is genuine "if the evidence is such that a jury could return a verdict for the nonmoving party."*fn68 A fact is material when it "might affect the outcome of the suit under the governing law."*fn69

  A party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn70 In turn, to defeat a motion for summary judgment, the opposing party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn71 and it "may not rely on conclusory allegations or unsubstantiated speculation."*fn72 Rather, the opposing party must produce admissible evidence that supports its pleadings.*fn73 In this regard, the "mere existence of a scintilla of evidence" supporting the opposing party's case will be "insufficient to defeat summary judgment."*fn74

  In determining whether a genuine issue of material fact exists, the court will construe the evidence in the light most favorable to the party opposing summary judgment and draw all reasonable inferences in that party's favor.*fn75 Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn76 Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the [opposing] party."*fn77

  B. ERISA Standard

  This Court has already held that the denial of benefits by a claim administrator will be overturned only if it is arbitrary and capricious.*fn78 Under this deferential standard, 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.'"*fn79 Substantial evidence means "such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the decision maker."*fn80 Thus, while I am required to consider whether MetLife's "decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," I may not "upset a reasonable interpretation by the administrator."*fn81

  On a summary judgment motion, the arbitrary and capricious standard requires a court to "`ask whether the aggregate evidence, viewed in the light most favorable to the [administrator], could support a rational determination that the plan administrator acted arbitrarily in denying the claim for benefits.'"*fn82 Thus, MetLife's "decision will be upheld unless it is not grounded on any reasonable basis" and I need only assure that the decision "falls somewhere on a continuum of reasonableness — even if on the low end."*fn83

  C. The Requirement of a Full and Fair Review

  The statute mandates that all employee benefit plans "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim."*fn84 The purpose of a full and fair review is to "provide claimants with enough information to prepare adequately for further administrative review or an appeal to the federal courts."*fn85 According to the Second Circuit, a full and fair review requires that the claims administrator "`notify the participant promptly, in writing and in language likely to be understood by laymen, that the claim has been denied with the specific reasons therefore.'"*fn86 The claims 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."*fn87

  "The Second Circuit has indicated that `substantial compliance' with [ERISA's] regulations may suffice to meet § 1133's mandate of a `full and fair review' even when an individual communications from the administrator does not strictly meet the requirement."*fn88 Several other circuit courts, as well as district courts in this Circuit, have explicitly adopted the substantial compliance rule.*fn89 Substantial compliance exists where the beneficiary is "supplied with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review."*fn90 This "more flexible application" of the regulatory requirements "does not indicate that courts do not take them seriously; it merely means that the spirit rather than the letter of the requirements governs."*fn91 IV. DISCUSSION

  A. MetLife Provided Winkler With A Full And Fair Review

  Winkler contends that he was denied a "full and fair review" of his claim. However, under the substantial compliance standard, Winkler's contention is not supported by the factual record. In correspondence to Winkler, MetLife disclosed precisely why it was denying his claim and which information it considered persuasive in making that determination.*fn92 MetLife explained where Winkler's proffered evidence of disabling HIV and depression was deficient, pointing directly to a lack of objective medical findings substantiating total disability on or prior to October 10, 2001.*fn93 MetLife's letters also provided adequate notice of Winkler's right to appeal the denial and advised his attorneys how to perfect his claim.*fn94 Upon request, MetLife furnished Winkler's counsel with claim file documents, including the reports of MetLife's independent physician consultants and the evidence on which their evaluations were based.*fn95

  In processing Winkler's appeal, MetLife sought the opinions of two physicians who were not involved with the initial claim determination. Both physicians performed comprehensive reviews of the claim file, including the medical reports and the narratives of Winkler's co-workers.*fn96 MetLife further afforded Winkler a full and fair review by informing him, while his appeal was still pending, that in light of the additional medical reports submitted and obtained it was inclined to uphold its original denial, but that it would still consider additional evidence of disability.*fn97 Winkler notes that MetLife failed to mention that his file lacked "cognitive/near-psychological testing" until its final denial letter,*fn98 but this belated specificity does not invalidate MetLife's appellate review in light of MetLife's earlier reiterations that approval for LTD benefits would require objective medical evidence in the form of "office notes and/or test results" substantiating a deterioration in health that precluded him from performing his job "as of the time he last worked."*fn99 Thus, Winkler was afforded an opportunity to correct the specified deficiencies in his claim and MetLife met its burden of substantial compliance with the procedural requirements of a full and fair review.

  Winkler also argues that he was not afforded a full and fair review because MetLife failed to discharge its duty to develop a complete record in determining that he was laid off as part of the company's RIF.*fn100 Winkler unjustifiably interprets the requirement of a full and fair review as requiring MetLife to perform follow-up investigations wherever the evidence is ambiguous.*fn101 In reaching its conclusion that Winkler was terminated due to a RIF, MetLife considered all of the evidence that was reasonably available to it. MetLife reviewed narratives of Winkler's co-workers indicating that his performance deteriorated in the months prior to the RIF, but MetLife also reviewed the contradictory information it received from Jack Morton's Human Resources Department. Specifically, Pat Reese, a Benefits Manager at Jack Morton unequivocally informed MetLife that Winkler was laid off solely because of the RIF and that there had been "no significant change" in his job performance prior to his termination.*fn102 Winkler contends that MetLife should have conducted further investigation to "clarify" this conflicting evidence, but he offers no basis for discrediting Reese as a reasonable, reliable source of information.*fn103 Given MetLife's discretion to weigh conflicting evidence, Winkler is hard pressed to claim that MetLife's reliance on Reese's information was unreasonable.

  Finally, Winkler maintains that the full and fair review requirement mandates that MetLife develop specific guidelines for reviewing claims based on HIV and depression.*fn104 He argues that such guidelines are necessary to ensure that similarly-situated claimants are treated consistently under the Plan.*fn105 Yet no case law supports this proposition and ERISA contains no such requirement. Winkler relies on a Department of Labor regulation requiring claims procedures to be "applied consistently with respect to similarly situated claimants."*fn106 But this regulation does not require plan administrators to create specific guidelines for assessing particular illnesses, such as HIV or depression. As long as MetLife substantially complies with ERISA's procedural requirements, MetLife has the flexibility to adjudicate claims on an individual, case-by-case basis.*fn107

  B. MetLife's Determination Was Not Arbitrary Or Capricious

  Because MetLife sufficiently complied with the requirements of a full and fair review, the only issue remaining is whether there was substantial evidence in the record to support MetLife's claim determination. The record strongly suggests that there was. MetLife reasonably relied on the following evidence in determining that Winkler failed to establish a severity of illness while he was employed at Jack Morton: (1) Dr. Dillon, Winkler's internist, provided no indication in his treatment notes prior to October 10, 2001, that Winkler was unable to work due to HIV or depression; (2) Although Winkler claimed he was impaired by the side effects of his HIV medications, these medications had not changed since 1999; (3) Independent physician consultant Dr. Greenhood concluded that changes in Winkler's CD4 cell count were not indicative of a severity of illness that would render Winkler unable to work; (4) Dr. Almeleh's opinion was based primarily on Winkler's subjective self-reporting and on an examination of Winkler that did not take place until after Winkler was terminated; (5) Dr. Drob's opinion that Winkler's depression precluded him from working was based on Winkler's subjective self-reports and was Dr. Drob did not examine Winkler until nine months after he was laid off; (6) There was no objective evidence or test results substantiating Winkler's cognitive defects; (7) The four independent physicians or psychologist consultants commissioned by MetLife all opined that there was insufficient medical evidence to show that Winkler was unable to work prior to his termination; (8) the narratives of Winkler's co-workers were contradicted by Jack Morton Human Resources personnel who stated that Winkler's work was satisfactory prior to October 10, 2001.*fn108

  In light of this evidence, MetLife's decision can hardly be considered an unsupported abuse of discretion. MetLife's conclusion is supported by substantial evidence, much of it coming from the four consultants MetLife commissioned to review Winkler's claim. The evaluations of doctors Greenhood, Lipsitch, Shallcross, and Kilburn were conclusive: all found that the record lacked objective evidence proving a severity of symptomatic HIV or depression that would have precluded Winkler from working.*fn109 The earliest medical opinion that Winkler was disabled came in November 2001, a month after Winkler was terminated, when he consulted Dr. Almeleh regarding his depression.*fn110 This opinion, and others subsequently submitted declaring that Winkler was disabled prior to his termination, do not undermine the reasonableness of MetLife's determination that there was insufficient medical evidence of a disability. The "`mere existence of conflicting evidence does not render [MetLife's] decision arbitrary or capricious.'"*fn111 Nor was it unreasonable for MetLife to insist on objective evidence in order to evaluate coverage under the Plan.*fn112

  Winkler raises two specific objections to MetLife's determination. First, Winkler argues that MetLife's decision was arbitrary and capricious because MetLife "unreasonably relied" on the fact that Winkler worked full time until being terminated as "dispositive" evidence that he was not disabled.*fn113 This assertion is wholly unsupported by the record. Rather, the record suggests that MetLife considered a number of factors in reaching its decision, giving particular attention to Winkler's claims that he was disabled as a result of HIV and depression. Furthermore, it was not unreasonable for MetLife to consider Winkler's post-termination freelance work as indicative, albeit inconclusive evidence, of his ineligibility for benefits under the Plan.*fn114 Winkler's reliance on the Second Circuit's recent holding in Locher v. UNUM Life Ins. Co. of Am.,*fn115 is misplaced. Locher stands for the proposition that where eligibility for LTD benefits expires on the last day of employment, the fact that an employee worked full-time up until that date does not, by itself, constitute a ground for denying that employee's disability claim, where the employee is able through other evidence to show that she was disabled prior to termination.*fn116 Nothing in Locher prohibits MetLife from taking into account Winkler's ability to work before (or after) his termination as one factor among others.

  Second, Winkler contends that MetLife's denial of benefits was arbitrary and capricious because MetLife failed to defer to the opinions of Winkler's treating physicians.*fn117 This is particularly arbitrary, Winkler argues, because MetLife instead relied on the conclusions of doctors who possessed inferior, "secondary" knowledge of Winkler's medical condition.*fn118 However, the Supreme Court has held that a Plan administrator is "not obliged to accord special deference to the opinions of treating physicians."*fn119 The Court further held that "courts [may not] impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation."*fn120 Accordingly, MetLife is not required to credit the diagnoses of doctors who personally examined Winkler over the opinions of the physicians consulted by MetLife.*fn121 Although MetLife's physician consultants made their final determinations without conferring with examining physicians, MetLife's reliance on their reports was not unreasonable. MetLife has discretionary authority to weigh competing medical opinions and to determine, based on all the evidence in the record, whether a claimant is disabled under the Plan.*fn122 None of the opinions on which MetLife relied in making its decision were unreasonable or irrational; nor can they be construed, on their face, as products of bias or self-interest.*fn123 Accordingly, this Court cannot conclude that MetLife's denial of benefits fell outside the realm of its discretion so as to constitute an arbitrary and capricious decision.


  For the foregoing reasons, MetLife's motion for summary judgment is granted and Winkler's cross-motion is denied. The Clerk of the Court is directed to close these motions [#23, 47] and this case. SO ORDERED.

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