The opinion of the court was delivered by: Trager, J.
Plaintiff Helen Nelson alleges that defendants Unum Life Insurance Co. of America ("Unum") and Jostens, Inc. ("Jostens")(collectively, "defendants") improperly denied her long-term disability benefits in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1001, et seq. Plaintiff seeks to recover benefits for neck and back pain stemming from a 1980 motor vehicle accident. Defendant Unum denied plaintiff's request for benefits, and affirmed the denial of benefits upon appeal and reappeal, citing the opinion of its consulting orthopedic surgeon, who based his opinion on a review of plaintiff's medical records. Plaintiff filed suit on January 3, 2003, and both parties now move for summary judgment.
Plaintiff is a 57-year-old customer service representative who last worked on May 20, 2002. Plaintiff had periodically experienced severe neck, lower back pain and headaches as a result of the 1980 motor vehicle accident, and these symptoms intensified in the time leading up to her last day of work.
From approximately 1993 until 2002, plaintiff worked for Jostens (and its predecessor), which photographs the students for a large percentage of schools in the New York City area. Jostens has contracted with Unum to provide its employees with disability insurance pursuant to an employee welfare benefit plan, which is governed by ERISA.
The Unum long-term disability policy ("the plan") defines disability as follows:
You are disabled when Unum determines that: -you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and -you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 24 months of payments, you are disabled when Unum determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
Statement of Material Uncontested Facts in Supp. of Def. Unum Life Ins. Co. of Am.'s Cross-Mot. for J. on the Admin. R. ("Def.'s 56.1 Stmt."), Ex. 2 at UACL00603 (emphasis in original).*fn1 The plan defines "regular occupation" as "[t]he occupation you are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location." Id. at UACL00587. The plan further provides that, "[w]hen making a benefit determination under the policy, Unum has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." Id. at UACL00607.
At the time she stopped working, plaintiff was under the care of a neurologist, Dr. Shan Nagendra, and a chiropractor, Richard McAlister. Based on an examination and MRI, Dr. Nagendra diagnosed plaintiff with lumbar disc herniation with spinal canal stenosis and mild spondylosis related to her 1980 motor vehicle accident. Plaintiff applied for short-term disability benefits, which Unum approved, subject to periodic updates on plaintiff's condition. Unum ultimately paid plaintiff short-term disability benefits until November 24, 2002, after which her claim was converted to one for long-term disability benefits.
Plaintiff, her physicians and chiropractor, and Jostens submitted documentation to Unum detailing plaintiff's diagnoses, treatments, progress (or lack thereof), restrictions and limitations, and the physical requirements of plaintiff's job as a customer service representative at Jostens. The administrative record also contains numerous notes from various Unum reviewers indicating whether they believed the restrictions and limitations claimed by plaintiff and her doctors were supported and what, if any, further information was required to evaluate the claim.
In particular, Dr. Nagendra filled out physical capacities evaluation ("PCE") forms provided by Unum each month from June-October 2002, in which he consistently indicated that plaintiff was capable of sitting for up to two hours, standing for up to two hours, and walking for between one and three hours. What is unclear, however, is whether plaintiff could perform these activities for the stated durations continuously or intermittently, as Dr. Nagendra failed to so state for the months June-August 2002. In the September 2002 PCE, Dr. Nagendra stated that plaintiff could sit and stand for up to two hours per day "alternating." Then in the October 2002 PCE, he indicated that plaintiff could sit, stand and walk for up to two hours per day "continuously."
In the PCEs from June-September 2002, Dr. Nagendra indicated that plaintiff could push up to ten or fifteen pounds (her pushing capability varied, depending on the date of examination), and pull and lift up to ten pounds. In the October 2002 PCE, however, Dr. Nagendra stated that plaintiff was incapable of pushing, pulling or lifting any weight whatsoever. Dr. McAlister also opined that plaintiff could not drive, due to her inability to turn her head, and could not travel by bus for longer than one-and-a-half to two hours each day, due to excessive jostling. In the October 2002 PCE, Dr. Nagendra concurred that plaintiff was unable to travel by bus.
According to a Job Analysis form completed by Troy Rudoll, Eastern Regional Sales Manager for Jostens, plaintiff's job as a customer service representative required her to perform "clerical work; answering telephones, paperwork, filing, preparing film to ship to our processing facilities." See Def.'s 56.1 Stmt., Ex. 2 at UACL00290. Mr. Rudoll further indicated on the form, "Majority of time is spent sitting. Minor walking around office to get files." Id. Mr. Rudoll wrote that plaintiff's job required her to carry film and photoproofs, weighing three to five pounds and occasionally up to ten pounds, a distance of fifty feet three to five times per day. Id. He further noted that the equipment used in the job consisted of "telephone, pens/pencils, paper," and the job "requires a lot of sitting and working at a desk, answering phones, completing paperwork, etc." Id.
Plaintiff's medical evidence was reviewed on behalf of Unum by Ruth Box, R.N., on June 10, 2002; by Lisa Lewis, R.N., on September 10, 2002, October 17, 2002, October 29, 2002, and November 22, 2002; and by Dr. Geron Brown, M.D., on November 25, 2002. On January 14, 2003, Unum denied plaintiff's claim for long-term disability benefits, giving the following explanation:
The job analysis provided by your employer indicates that your job is sedentary with lifting of up to 10 pounds. The majority of the time is spend sitting while working, with minor walking to obtain files.
The medical review indicates that based on the MRI of your lumbar spine, you have mild spondylosis and degenerative disc bulfing at L4-5 and mild central spinal stenosis at L4-5 and L3-4. The MRI of your cervical spine suggests annular disc bulge at the C4-5 and C5-6. The medical review concluded that based on the medical information in our file, while there is support for some restrictions and limitations you are able to perform your sedentary job on a full time basis.
Plaintiff appealed the determination on July 7, 2003, disputing, inter alia, Mr. Rudoll's description of plaintiff's job duties and forwarding a "random sampling" of shipping records which she alleged showed that she was frequently required to lift packages heavier than 10 pounds. Id. at UACL00460. Plaintiff further included a chart compiling the data from the shipping records to indicate the dates on which packages of various weights were shipped. Id. at UACL00455. The chart, which does not purport to be exhaustive, indicates that over a seven-month period, Jostens shipped 51 packages weighing 10 pounds or less, 28 packages weighing 11-15 pounds, 5 packages weighing 16-20 pounds, 9 packages weighing 21-30 pounds and 7 packages weighing 30-47 pounds. There is no indication of how many people worked at Jostens who were available to carry these packages.
Unum acknowledged receipt of plaintiff's appeal on July 17, 2003, and on August 6, 2003, it advised plaintiff's counsel that it was affirming the denial of benefits after a further review of her record by Dr. George Seiters, M.D., on July 29, 2003. Id. at UACL00476. The letter denying plaintiff's appeal was signed by Shane Berryhill, Sr. Appeals Specialist, and included the following:
The policy under which your client is insured, in part, states: "Regular Occupation means the occupation your are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location."
We received your letter of appeal, along with the additional information you submitted, within our office on July 11, 2003. We have had the clinical portion of this information reviewed, in conjunction with the file's previously existing clinical information, by a Board Certified Orthopedic Surgeon.
As you can see, the Board Certified Orthopedic Surgeon [Dr. Seiters] concluded, in part, "In my opinion, the clinical findings are consistent with restricting push, pull, lift and carry to the 5 to 10 lb. range . . . . The information available from the treating chiropractor in June 2003 is consistent with continued R&Ls related to the cervical spine for repetitive, prolonged or extreme cervical spine positioning, activity in the DOT sedentary range and a requirement for frequent change of position."
It appears the national economy would consider your client's regular occupation to be sedentary in nature. Furthermore, there is no indication that she would be unable to frequently change position.
Id. at UACL00474-76 (emphasis added).
Thus, despite the shipping records plaintiff had forwarded on appeal, Unum continued to characterize her occupation as sedentary. Unum also advised plaintiff's counsel that plaintiff had failed to submit medical evidence for the period October -November 14, 2002, and, therefore, failed to satisfy the policy's elimination period. Unum invited plaintiff to submit further information for its consideration.
In response, plaintiff's counsel forwarded to Unum, inter alia, a letter from Dr. McAlister dated October 31, 2002, stating that plaintiff's spinal disorders "are permanent in nature" and that she "remains unfit for work." Id. at UACL00560. Plaintiff's counsel also argued that plaintiff's travel restrictions prevented her from getting to her job at Jostens and again argued that plaintiff's job at Jostens was not sedentary:
Further, I note that Dr. Seiters finds that clinical findings are consistent with restricting push[,] pull, lift and carry to the 5 to 10 lb. range. As the UPS records and graph enclosed in our letter of July 7, 2003 indisputably indicate, Mrs. Nelson was required to regularly and daily lift boxes of photographs substantially heavier than 10 pounds. Unum Provident is again reminded that this is a random sampling representing only a few days out of the several years Mrs. Nelson worked for Jostens. A methodical investigation would reveal even heavier cartons that had to be lifted and moved several times during the course of a work day.
Thereafter, Dr. Seiters conducted a second medical review on Unum's behalf on October 23, 2003, concluding that the new clinical information was "consistent with continued R&Ls [restrictions and limitations], . . . for repetitive , prolonged or extreme cervical spine positioning, activity in the DOT [Dictionary of Occupational Titles] sedentary range and a requirement for frequent change of position." Id. at UACL00572. Dr. Seiters further concluded that the findings were "consistent with orthopedic R&Ls the lumbar spine for repetitive bending and twisting, some degree of lifting restriction likely in the DOT light to medium-range and accommodation for frequent change of position on a temporary basis related to a flare up of back pain in September 2003 and continuing pending follow-up assessment." Id. Unum also referred the claim to G. Shannon O'Kelley, M.Ed., C.R.C., a vocational rehabilitation consultant, on October 28, 2003, with the following question:
Would the claimant be able to perform her occupation as performed in the national economy with the restrictions and limitations presented per the medical review? The medical review indicates that the claimant would have the ability to perform activities in the DOT sedentary range with no repetitive, prolonged or extreme cervical spine positioning, no repetitive bending/twisting, and a requirement for frequent change of position.
O'Kelley described plaintiff's occupation as follows: The occupation as described by the employer would be considered to be sedentary as it does not require lifting greater than 10 pounds occasionally and predominantly performed in the seated position. The occupation is an amalgamation of occupations per the DOT to include receptionist, customer service activities, order clerk, filing and shipping. The combined physical requirements of these occupations from the DOT would be considered to be light. The job analysis further defines the occupation into the nature of the materials filed and mailed. These items weigh ...