The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
In this action pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq., plaintiff seeks judgment declaring that he is eligible to receive long-term disability benefits under a policy issued by defendant The Prudential Insurance Company of America ("Prudential"). He further seeks to recover unpaid benefits. Defendants move (Dkt. No. 26) for summary judgment.
In 1989, plaintiff, then an employee of Digital Equipment Corp. ("Digital"), a predecessor of defendant Hewlett-Packard Co. ("HP"), applied for disability benefits under a group insurance contract issued by Prudential. Plaintiff's disability claim was based on a diagnosis of multiple chemical sensitivity, chronic fatigue, and severe allergies stemming from exposure to chemicals at work. In May 1989, Prudential advised plaintiff that he was eligible to receive benefits under the short-term disability plan. Subsequently, Prudential approved plaintiff's application for long-term disability ("LTD") coverage, effective as of November 15, 1989. The applicable policy provided benefits for an insured's "total disability"; however, benefits were limited to a period of 24 months where the disability "is caused at least in part by a mental, psychoneurotic or personality disorder."
Plaintiff continuously received LTD benefits throughout the 1990's. In September 2000, Prudential sought an independent review of plaintiff's file by Howard M. Kipen, M.D. On October 19, 2000, Dr. Kipen issued a report stating that plaintiff has no medically determinable limitations or restrictions based on the record provided. The record provides no physiologic basis for medical impairment, and in fact supports the absence of such impairment. While he has self-reported chemical sensitivities, he does not qualify for a diagnosis of MCS [multiple chemical sensitivity] ... because of his lifelong history of sensitivities, and possibly because of his psychiatric diagnoses of somatoform disorder, depression, and possibly hyperventilation.
By letter dated January 8, 2001, Prudential informed plaintiff that he was not eligible for LTD benefits. The letter stated that "Dr. Kipen's file review does not support that you have any medically determinable physiologic impairment that would prevent you from working. Dr. Kipen indicates that you may have some degree of psychiatric disorder[.]" Based on Dr. Kipen's report and its own file review, Prudential found that "the medical evidence does not support medically determinable physiologic impairment severe enough to prevent you from performing 'any occupation'"; that plaintiff "may have some level [of] impairment from a psychiatric condition(s), however, the limited period of benefits for any disability caused at least in part by a mental, psychoneurotic or personality disorder ended on November 15, 1991."
Plaintiff sought reconsideration of the determination and submitted additional information.
Dr. Kipen reviewed the additional submissions and, on March 11, 2002, confirmed his opinion, stating: "In summary, the records do not provide any documentation of a non-psychological impairment which might keep Mr. Hine from working." On March 19, 2002, based on Dr. Kipen's opinion and its own review of the records, Prudential determined that plaintiff "would have the physical capacity to perform any occupation[.]" Prudential further determined that plaintiff's "reactions to chemicals are in part due to a mental, psychoneurotic or personality disorder" and that plaintiff has exhausted all benefits for disabilities caused by such disorders. Thus, Prudential upheld its decision to discontinue plaintiff's LTD benefits.
Plaintiff made a second request for reconsideration, and Prudential obtained an independent review of the records by Stephen N. Gerson, M.D. On December 27, 2003, Dr. Gerson reported his opinion that plaintiff suffered from various psychological impairments including depression, somatoform disorder and anxiety disorder. Dr. Gerson noted that in some instances plaintiff's treating physicians had attributed plaintiff's condition to psychological factors. By letter dated January 23, 2004, Prudential notified plaintiff that it upheld its decision to terminate his benefits.
Plaintiff requested a third review. On March 25, 2004, Prudential again upheld the determination to terminate his LTD benefits and noted that this determination completed the final level of appeal available.
In the complaint, filed April 29, 2004, plaintiff claims that defendants' payment of LTD benefits for over nine years constituted a waiver of their right to deny coverage on the ground that he did not suffer from a physically disabling condition. Plaintiff further contends that defendants' decision to terminate LTD benefits was "unjustified, unsupported by substantial evidence, and constitutes a breach of [plaintiff's] rights" under the plan. Plaintiff seeks judgment ...