The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Carolyn Glockson ("plaintiff" or "Glockson") brings this action against First Unum Life Insurance Company ("defendant" or "First Unum") 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. Plaintiff moves 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 June 9, 2006, in Utica, New York. Decision was reserved.
Glockson was working as an office manager in September 1999 when she left employment due to back problems, pain and lack of stamina. Plaintiff submitted a claim for benefits under the disability insurance policy provided by her employer as part of her compensation package. The policy is administered by First Unum. Plaintiff began receiving disability benefits in March of 2000, at the expiration of the policy's 180-day elimination period.
Plaintiff's policy pays twenty-four months of benefits if she is disabled from her regular occupation. (Docket No. 24, Administrative Record ("AR ___"), p. 634.) After twenty-four months, the policy pays if she is disabled from working at any gainful occupation for which she is reasonably fitted by education training or experience on a part-time basis. (AR 634.) "Gainful occupation" is defined as one which can be expected to provide plaintiff with an income at least equal to her gross disability payment within twelve months of her return to work. (AR 633.)
In the same month that Glockson began receiving benefits (March 2000) she participated in a comprehensive evaluation of her occupational capacity. This "ERGOS" evaluation was conducted by physical therapist, William Blunden ("Blunden"). It was determined that plaintiff was totally disabled -- unable to perform even sedentary work for four hours per day because of severe limitations in all job functions. (AR 172.) Plaintiff was unable to sit longer than five minutes without needing to change positions and stand. She also demonstrated very poor endurance in activities such as stooping, kneeling, crouching and reaching. (AR 158.) Blunden explained that [plaintiff] was willing to attempt all activities that were presented to her but due to ROM and strength limitations was unable to perform many of the tests. . . [He] noted very consistent efforts during this evaluation and there was no exaggeration of symptoms or pain levels. In fact [plaintiff] realized that a pain level of 10 was extreme pain and stated that she needed to give herself room to worsen and not rate her pain artificially high initially. (AR 173.) First Unum continued to pay benefits and, in accordance with the policy, required plaintiff to provide proof of continuing disability. (AR 621.)
A year later, in August 2001, a representative of the defendant conducted a field visit to plaintiff's home. (AR 338-43.) Despite plaintiff's claim that she could not climb stairs, the field agent found that she lived on the second floor.*fn1 He arrived early and found her vacuuming, an activity reportedly beyond her capacity, and noted that plaintiff did not exhibit symptoms until she was questioned about them.
Plaintiff was seen by First Unum RN, Dennis Caron, the next month. He opined that the determination that she was total disabled was "overly restrictive." (AR 355 -56.) However, the following month, in October 2001, plaintiff's treating physician, Dr. Shirley Tuttle-Malone ("Dr. Tuttle-Malone"), continued to report that she was totally disabled. (AR 366-67.) Two months later, in December 2001, plaintiff was seen by First Unum RN, Susan Grove who concluded that there was no clinical evidence to support a finding that plaintiff was totally disabled. (AR 374.)
First Unum scheduled another comprehensive evaluation of her occupational capacity -- an independent Functional Capacity Exam ("FCE") -- for February 2002. Wendy Alford-Tousley, the physical therapist who administered the test, concluded that plaintiff could not work for four hours of sedentary activity per day, but that this was only a minimum measure of plaintiff's capacity considering her doubts about whether plaintiff exerted full effort during the testing. (AR 446.) The evaluator recommended pain treatment and aqua therapy, but not a work-hardening program. (AR 446.)
The next month, in March 2002, First Unum's consulting physician, Dr. Barry Gendron ("Dr. Gendron"), reviewed plaintiff's file. He concluded that the record did not support a finding of total disability and opined that she could work in a full-time sedentary capacity because, according to the FCE, she could sit for most of the day. (AR 442.) First Unum then scheduled plaintiff for an Independent Medical Examination (IME) with John D. Thomas, II, M.D. ("Dr. Thomas").
Dr. Thomas examined plaintiff and issued a report in May 2002. (AR 466-80.) He concluded that plaintiff could work only two hours per day in a sedentary capacity. (AR 466.) He stated that his examination findings were in agreement with the diagnostic testing and imaging reports in the record and that the objective findings supported her work restrictions and limitations. (AR 470.)
In regard to management of plaintiff's fibromyalgia symptoms he stated: "I believe that there is some room for improvement here. Whether it will re-establish full-time sedentary duty workability remains to be seen." (AR 470.) In addition, First Unum had requested that Dr. Thomas make observations as to any of plaintiff's behaviors that were unusual, unexpected or inconsistent. In that vein, Dr. Thomas noted: "I saw, heard, found no inconsistent, unusual, unexpected behaviors or comments." (AR 470.) Accordingly, defendant continued to pay benefits and monitor plaintiff's claim.
First Unum conducted three days of video surveillance in the fall of 2002 and recorded activities on two of those days -- October 23, 2002 and October 24, 2002. Plaintiff was videotaped riding in a car for almost an hour at a stretch while running errands, including getting gas, walking about without apparent difficulty, carrying small packages and going out to lunch. Plaintiff was out and about for four and five hours on those two days. In November 2002, Dr. Gendron reviewed the file again, which now included the video surveillance, and concluded that there was no objective evidence to support the conclusion that she could not work full-time at a sedentary position. (AR 497-99.) Dr. ...