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June 6, 2005.


The opinion of the court was delivered by: PETER LEISURE, District Judge


Plaintiff Sharon Klecher brings this action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 001 et seq., and specifically under 29 U.S.C. § 1132(a)(1)(B), challenging the termination of Long-Term Disability ("LTD") benefits under her employer's benefit plan. Plaintiff brings this suit against defendants, the Metropolitan Life Insurance Company ("MetLife") and The Oxford Health Plans, Inc. Employee Welfare Plan ("the Plan"). On June 11, 2002, the parties cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Court granted in part defendants' motion and denied in part plaintiff's motion on June 5, 2003. Klecher v. Met. Life Ins. Co., No. 01 Civ. 9566, 2003 U.S. Dist. LEXIS 9572 (S.D.N.Y. June 5, 2003). On July 9, 2003, plaintiff sought leave to amend her Complaint under Rule 15 of the Federal Rules of Civil Procedure. On August 27, 2004, the Court denied plaintiff's request to file her proposed amended complaint but granted her request to file an amended complaint with the limited changes of adding Oxford Health Plans, Inc. ("Oxford") as a named defendant and repleading her claim for breach of fiduciary duty as to MetLife as one for improper denial of benefits under 29 U.S.C. § 1132(a)(1)(B). Klecher v. Met. Life Ins. Co., 331 F. Supp. 2d 279 (S.D.N.Y. 2004). Plaintiff filed her amended complaint on November 4, 2004, pleading the ERISA violation but apparently not adding Oxford as a defendant. Defendant now moves for renewed summary judgment under Rule 56 and plaintiff moves for judgment on the pleadings under Rule 12(c), based on plaintiff's only remaining claim asserting that defendants violated 29 U.S.C. § 1132(a)(1)(B) in terminating her LTD benefits under the Plan. For the following reasons, defendants' motion is granted and plaintiff's motion is denied as there is no material issue of fact in dispute. BACKGROUND*fn1

  I. The Parties

  Plaintiff Sharon Klecher was actively employed by Oxford as a Director of Provider Operations from January 2, 1996 (AR 149, at 2)*fn2 until October 20, 1998 when she took disability leave due to back pain (Defendants' Rule 56.1 statement filed with its first motion for summary judgment on April 1, 2002 ("Defs.' 56.1") attached to Defendants' Notice of Motion, dated October 29, 2004, at Ex. B ¶¶ 5, 7). She has not returned to work and is currently receiving Social Security Disability benefits. (See AR 157-61.)

  Defendant MetLife is the issuer and administrator of the Plan, established and maintained by Oxford to provide eligible Oxford employees with LTD benefits. (Defs.' 56.1 ¶¶ 1-2.)

  II. Plaintiff's Medical History Prior to Receipt of Disability Benefits

  Plaintiff Sharon Klecher has suffered from lower back pain since as early as 1990. (AR 300.) In 1995, Magnetic Resonance Imaging ("MRI") showed that she suffered from a mild narrowing of her vertebral spinal disc and showed evidence of disc desiccation. (Id. 228-29.) This was treated with physical therapy, which improved the pain. (Id. 149, at 2.) In October 1998, plaintiff complained of reinvigorated back pain coinciding with her third pregnancy. (Id. 300.) On October 20, 1998, plaintiff began receiving short term disability benefits and, on April 21, 1999, she was granted LTD benefits pursuant to the Plan. III. The Plan

  The Plan authorizes LTD benefits for Oxford employees deemed disabled depending on the following pertinent criteria:
[D]ue to an Injury or Sickness, you require the regular care and attendance of a Doctor and:
1. you are unable to perform each of the material duties of your regular job; and
2. after the first 24 months of benefits, you must be unable to perform each of the material duties of any gainful work or service for which you are reasonably qualified.
(Declaration of Jeanne Rudell ("Rudell Decl.") Ex. A at 16, attached to Defendants' Notice of Motion, dated October 29, 2004.) The Plan also grants MetLife and other Plan fiduciaries:
discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious.
(Id. at 39.)

  IV. Denial of Benefits and Appeals

  On May 19, 1999, Drs. Joseph P. Communale, Jr., M.D. and Edward Glenn, M.D. administered another MRI on plaintiff which revealed that she suffered from degenerative disc disease and central vertebral disc herniation (protrusion of the disc) without evidence of spinal stenosis (narrowing of the spinal column) or foraminal encroachment. (AR 250.)

  On July 1, 1999, Klecher's primary care physician, Dr. Eileen Korpi, in her Attending Physician Disability Claim Statement (id. 243-45), noted that plaintiff suffered from a herniated lumbar disc and severe back pain with radiculopathy (disease of the spinal nerve roots). (Id. 243.) The statement maintained that plaintiff had no ability to sit, stand, walk, carry, twist, bend, reach or operate a motor vehicle. (Id. at 245.) Based on these restrictions, Dr. Korpi surmised that plaintiff could not work at all. (Id.) The prognosis for improvement was "possibly after delivery in 6 months." (Id.) Dr. Korpi's patient notes from July 12, 1999 indicate that plaintiff's back pain had improved "six weeks postpartum" but, based on plaintiff's description of her normal work routine, Dr. Korpi strongly recommended that plaintiff not return to work for at least six months. (Id. 273.) On September 9, 1999, Dr. Korpi examined plaintiff again and noted that she was in pain and had a palpable (noticeable by touch) muscle spasm in her upper back. (Id.)

  On September 28, 1999, MetLife's "in house physician" (id. 298), Dr. Amy Hopkins, M.D., M.P.H., PhD,*fn3 reviewed plaintiff's medical history. (Id. 300.) Dr. Hopkins found it inconsistent that plaintiff's treatment plan for residual back pain consisted largely of maintaining a state of recline as "[t]here is no documentation that she is recumbent most of the day, which would not be the indicated tx [treatment] for back pain in any case." (Id.) Dr. Hopkins recommended that,
[s]ince EE's [employee plaintiff's] sx [symptoms] have improved since the birth of her child, and no neurologic deficits are documented, there does not appear to be any reason why EE cannot return to her regular duties which are described as sedentary to light. Her MRI findings are mild and would not preclude any specific type of work.
(Id.) Dr. Hopkins did not recommend any further testing because "the documentation supports the lack of significant functional impairment." (Id. 300-01.) MetLife, presumably concerned with the veracity of plaintiff's LTD benefits claim, employed InPhoto Surveillance, Inc. ("InPhoto") to observe plaintiff at her home for two days. On September 30, 1999, InPhoto observed plaintiff walking one of her children from her home to the curb for the school bus. (Id. 293.) In the afternoon, InPhoto observed and videotaped plaintiff walking for three minutes around the outside of her home "in a normal, unrestricted fashion." (Id. 294.) Approximately a half-hour later, plaintiff was observed entering her neighbor's house, but, "[d]ue to the brevity of this activity, it was not possible to obtain videotape." (Id.) Less than ten minutes later, plaintiff was videotaped walking back to her house "in a normal, unrestricted fashion." (Id.) Finally, at 3:20 p.m., InPhoto took videotape of plaintiff retrieving her mail from her mailbox, again walking normally. (Id.) InPhoto summarized that day's observations as follows:
Ms. Klecher was observed walking and carrying in a normal, unrestricted fashion. She does not appear to be physically handicapped or disabled, nor does she wear any visible back brace or cervical collar. We note that she does not utilize the support of a cane while moving about.
Approximately three minutes of videotape were obtained on this day.
(Id.) In Photo had surveilled plaintiff for a total of ten hours. InPhoto continued its surveillance on October 1, 1999, videotaping plaintiff carrying her infant child to and from her house without obvious restriction. (Id. 295.) Two minutes of videotape were obtained out of ten hours of observation. (Id. 296.) InPhoto supplied substantially the same summary as that for September 30, 1999. (Id.)

  A. Initial Termination of LTD Benefits

  By letter dated October 4, 1999, MetLife advised plaintiff that, based on an ongoing review of her eligibility, her LTD benefits were discontinued effective October 1, 1999. (Id. 298; Defs.' 56.1 ¶ 10.) MetLife reviewed medical records from Dr. Korpi and Spagnoli Physical Therapy and plaintiff's claim file in its entirety. (AR 298.) The file was also reviewed by Dr. Hopkins. (Id.) The letter stated that, though plaintiff "may experience some discomfort there is no medical documentation or clinical data presented" supporting a diagnosis prohibiting plaintiff from performing her sedentary to light job duties. (Id.) MetLife finally advised plaintiff that she ...

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