The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., in which plaintiff alleges that defendant unlawfully terminated his long-term disability insurance payments. Now before the Court is the defendants' motion [#10] for summary judgment and plaintiff's cross-motion [#16] for the same relief. For the reasons that follow, defendant's motion is granted and plaintiff's cross-motion is denied.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to plaintiff Norberto Pena ("plaintiff"). Plaintiff, who was then living in the vicinity of New York City, began to experience low back pain in November 1993 after he bent over to pick up change from the floor. An MRI of plaintiff's lower back taken on November 2, 1993 showed "possible Grade I retrololisthesis of L5 over S1", "markedly degenerated L5-S1 disk", a "small disk bulge and subligamentus disk herniation at L5-S1", and "no evidence of spinal stenosis [narrowing or constriction]". A neurologist subsequently examined plaintiff on December 2, 1993, and concluded that plaintiff had "lumbar radiculopathy secondary either to an extruded disc fragment, foraminal stenosis, or compression of the nerve root on the left." The neurologist recommended physical therapy and told plaintiff to avoid "heavy lifting, bending, twisting, turning, or straining." A myelogram performed on January 21, 1994 showed, at L4-5, "small left posterolateral spur resulting in minimal left neural foraminal narrowing", and at L5-S1, "mild degenerative changes and mild right neural formaminal narrowing." A second MRI taken on November 17, 1994 showed "dessication and loss of height of the intervertebral disc at L5-S1 with osteophyte and/or disc material seen effacing the ventral thecal sac." An EMG and nerve conduction study performed on November 18, 1994 was abnormal in that plaintiff's "left tibial H-reflex" was absent. The EMG and nerve conduction testing also showed "denervation present in the left L4 through S1 myotomes as well as to a lesser degree in the right L5 myotome", which findings were "consistent with a lumbosacral polyradiculopathy involving mainly the left S1 nerve root and to a lesser degree the right and left L5 nerve root and the left L4 nerve root."
Plaintiff claimed to be completely unable to work as a result of his back pain, and he began receiving long-term disability payments through Prudential Insurance Company beginning in October 1995. Under the portion of the policy that is relevant to this action, a claimant, to be considered disabled, must be unable "to engage in any work or occupation for which he/she is reasonably fitted by education, training or experience."
In or about December 1998, plaintiff moved to Rochester, New York, and began treating with a new primary care physician, David P. Stornelli, M.D. ("Stornelli"). Plaintiff saw Stornelli for an initial visit on December 23, 1998, at which time he told Stornelli that he was "barely able to ambulate." Stornelli examined plaintiff and made the following notes: "[Patient] periodically winces in pain . . . . I[t] took him approximately 3 minutes to get into a standing position from the chair. He was unable to stand up straight, preferring to be bent over forward. When attempting to bend forward to touch his toes, he collapsed to the floor in agony." Stornelli further noted:
The findings on physical exam do not correlate with the severity of pain reported by Mr. Pena. For him to have pain significant enough to cause him to collapse to the floor from a herniated disc, I would expect some diminished reflexes in his [lower extremities]. He has normal reflexes, normal sensation, an normal muscle bulk bilaterally which argues against a chronically herniated disc. I believe there is an element of drug-seeking behavior in this patient. (Stornelli December 23, 1998 report). Stornelli saw plaintiff again six months later (May 21, 1999) and noted that plaintiff was "ambulating better", and that plaintiff reported feeling better, while still experiencing daily pain. Plaintiff told Stornelli that he had been taking Valium and Darvocet that he obtained from family members.
During an office visit in August 1999, plaintiff told Stornelli that he had been in an automobile accident, which caused him neck and shoulder pain and exacerbated his low-back pain. Plaintiff also stated that he was taking Vicodin that he obtained from a family member. Stornelli noted that an x-ray showed "no fractures and mild DJD [degenerative joint disease]". Stornelli refused to prescribe narcotic medications. Due to plaintiff's complaints of neck pain, Stornelli referred him to have an MRI of his cervical spine. The MRI showed "small" disc bulges at the C3-5 and C4-5 levels, without "significant impressions on the thecal sac", and with "no evidence of spinal stenosis or significant foraminal narrowing". The MRI further showed "mild degenerative disc disease" at the C5-6 and C6-7 levels "without evidence of spinal stenosis".
Plaintiff saw Stornelli again on November 5, 1999, complaining of continuing neck and back pain. Stornelli noted, at that time, that plaintiff had not complied with his recommendation to try physical therapy. Stornelli also reported that plaintiff had not been taking the medications that he had prescribed, and instead was taking Percocet that he had "from a prior physician". Stornelli found no tenderness of the cervical spine, and found plaintiff's reflexes and strength to be normal. Stornelli wrote:
[A]s previously, I suspect that there is a large component of narcotic seeking behavior going on here. I also suspect that there may be litigation going on involving the car accident. The MRI of his cervical spine which we checked at the last visit did not show any significant disc herniation, spinal stenosis or nerve route compression to explain his symptoms.
Stornelli referred plaintiff to a pain treatment center for evaluation. However, two months later, Stornelli noted that plaintiff had not followed through with the referral. Stornelli also noted that plaintiff was not taking the medication that he had prescribed and was instead still taking narcotic medications obtained from family members. Stornelli continued to decline to prescribe narcotics for plaintiff's pain.
Plaintiff was evaluated by Jaimala Thanik, M.D. ("Thanik") at the Pain Management Center on February 10, 2000. Thanik observed that plaintiff "appeared in extreme pain and was continually having body jerks indicating pain and spasm".*fn1
Thanik observed that plaintiff "does have evidence of degenerative disease of the lumbar spine, and this may be a component of L5-S1 radiculopathy. He has, however, developed a strong chronic pain syndrome, which is complicating his pain as well as his response to treatments." Thanik recommended a "multi-disciplinary pain management program", subject to plaintiff being evaluated by a behavioral psychologist. Thereafter, plaintiff was examined by psychologist, Michael Kuttner, Ph.D. ("Kuttner"), who concluded that plaintiff was not a good candidate for the treatment suggested by Thanik, stating, in relevant part, that plaintiff "has a long-standing history of chronic pain. He has no goals or motivation to change. It would take a great deal of effort to engage in behavioral pain self-management skills, and, at this point, Mr. Penal does not appear to be a good candidate."
Stornelli saw plaintiff again a short time later, and reported that he agreed with Thanik and Kuttner that there was "a strong component of pain behavior with psychological overlay." Stornelli had plaintiff undergo a nerve conduction study, which showed "a left C7 cervical radiculopathy", though Stornelli opined that a myelogram would be necessary to "better delineate the anatomic abnormality".
Plaintiff was examined by a neurologist, Shige Okawara, M.D. ("Okawara"), on April 7, 2000. Okawara reviewed the MRI from 1999, and concluded that, despite the presence of small disc bulges, there was no indication of "nerve root compression, spinal stenosis or dislocation". After examining plaintiff, Okawara's impression was "left shoulder bursitis", noting that there was "no clear cut nerve root compression sign, except subjective sensory decrease of the three fingers of his left hand." Okawara had a new MRI performed, which showed no changes from the 1999 MRI. The radiologist who reviewed the new MRI stated that, "No signal abnormalities are identified within the cervical or visualized upper thoracic spinal cord." Okawara concluded that no surgical treatment was indicated, and he recommended that plaintiff be seen for an orthopedic evaluation of his shoulders.
When Stornelli saw plaintiff again in October 2000, plaintiff was complaining of pain in his neck, left shoulder, left arm, and right hand. Stornelli observed that plaintiff was "contin[uing] to display chronic pain behavior frequent grimacing, slowness to rise from a chair and antalgic gait." Stornelli stated, "I still do not have any objective data to determine a diagnosis to explain his chronic pain. He does however have an ...