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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 ...

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