The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM DECISION and ORDER
Margaret Wyant ("Wyant" or "plaintiff") brings this action against First Unum Life Insurance Company ("First Unum" or "defendant") pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, challenging First Unum's denial of long term disability benefits.*fn1 Both parties move for summary judgment on the administrative record pursuant to Fed. R. Civ. P. 56 and Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003). Oral argument was heard on February 24, 2006, in Albany, New York. Decision was reserved.
Wyant is a registered nurse who worked as a Senior Infection Control Practitioner at Ellis Hospital in Schenectady, New York. According to the complaint, she was diagnosed with multiple sclerosis (MS) in 1995. During one flare-up of the disease she had received short-term benefits and returned to work. She claims that at the time she left employment on September 30, 2000, she was suffering another flare-up which continues to date.
Plaintiff's disability insurance policy was provided through her employer and administered by First Unum. The policy assigns discretionary authority to the defendant to determine eligibility for benefits and to interpret the terms and provisions of the plan. (Docket No. 38, Administrative Record ("AR ___"), p. 734.)
The policy provides for short-term disability benefits and then two stages of long-term benefits.*fn2 The first twenty-four months of long term benefits will be paid if the claimant is "limited from performing the material and substantial duties of [her] regular occupation due to . . . sickness or injury." (AR 517.) "Regular occupation" is defined as follows:
Regular occupation means the 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. After 24 months long-term benefits will be paid if the claimant is disabled from any gainful occupation. (AR 517.)
After the 180-day elimination period, plaintiff applied for disability benefits in June of 2001. The claim form lists her diagnosis as MS and her disabling symptoms - as of October 2, 2000 - as dizziness, fatigue and balance and coordination problems. (AR 16.) Her treating neurologist, Dr. Neil S. Lava ("Dr. Lava"), listed her limitations as physical activity - no physical labor or operating machinery. Id. She attached a position description of a Senior Infection Control Practitioner and described her duties as follows:
Duties Number of Weekly Hours Reviewing patient records 20 Making rounds to units 5 Teaching staff 5 Attending meetings 5 Preparing reports/outbreaks 5 Id. In support of her claim she submitted her medical records and authorized the release of all medical information to First Unum, which began its evaluation of the claim.
The record contains numerous letters from Dr. Lava, a neurologist at Albany Medical College, to Dr. Burgess, her treating physician, reporting the results of MS follow-up visits. As of July 2000, Wyant was reportedly doing well and a follow-up was planned in six months. (AR 82.) As noted above, she stopped working only a few months later on -September 30, 2000. After a January 2001 visit, Dr. Lava noted her reported symptoms, ordered tests, and scheduled a follow-up visit in three months. (AR 55.) He referred her to an audiologist, a cardiologist, and arranged a consultation regarding her back problems.
After a visit in April, he listed her complaints and noted: "She is clearly unable to work because of her symptoms." (AR 56.) In August 2001, he examined her again and listed her reported symptoms.
On November 30, 2001, First Unum sent Wyant a letter accepting her claim for long-term benefits. (AR 155.) Only days later, on December 3, 2001, defendant sent the file to an in-house vocational consultant, Kenneth W. Martin ("Martin"), for an "occupational clarification." Martin concluded that plaintiff could not return to her previous position but could perform different, sedentary, applications of the RN position. (AR 159.) He listed six such options and stated that based on her educational background she would be qualified for all six. Martin explained: "In his 10/16/01 report her attending physician indicated that she was to avoid walking long distances, climbing stairs and ladders and lifting heavy objects. The nursing applications identified above should fit well within those parameters." Id.
On December 4, 2001, by phone, and on December 13, 2001, by letter, First Unum changed its determination and denied benefits. (AR183.) Wyant sent a letter appealing the claim based on her severe limitations - almost complete immobility - and submitted additional medical information. (AR 190.) This included a report from September 2001 by Dr. Robert D. Sax who concluded that her visual difficulties were "neurologic in source," and that she was "quite disabled when she is trying to do tasks that require visual concentration especially at near." (AR 185.) However, he also stated that she had a visual acuity correctable to 20/25 and did not need to be seen for one ...