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Shore v. Painewebber Long Term Disability Plan

October 15, 2007


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


Valerie Shore, Plaintiff, sues PaineWebber Long Term Disability Plan (the "Plan"), Reliance Standard Life Insurance Company ("Reliance") as Plan fiduciary, and PaineWebber Group Inc. and UBS Financial Services Inc. as Plan Administrators (collectively "Defendants"), alleging that Defendants wrongfully denied Plaintiff long term disability benefits in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1140 et seq. (1994).

Plaintiff moves pursuant to Fed. R. Civ. P. 56 for summary judgment on her claims and dismissing Defendants' affirmative defenses. Defendants move for summary judgment dismissing the complaint or, alternatively, remanding to Reliance for a determination as to whether Plaintiff is disabled from any occupation. For the reasons stated herein, both motions are denied, but Plaintiff's benefits claim is remanded for further consideration by Reliance.

I. Background

A. Plaintiff's Injury and Medical Condition

The following facts are undisputed, except where noted. Plaintiff began working for Correspondent Services Corporation, a subsidiary of PaineWebber, Inc., in 1997. She held the title of Ethics Officer/Director of Continuing Education and had an annual salary of $75,000 with a guaranteed minimum annual bonus of $50,000. (Pl.'s Local Rule 56.1 Statement ¶ 1; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 1-6.) As an employee of PaineWebber, Plaintiff was a participant in the Plan,*fn1 which was insured under a group insurance policy ("the Policy") issued by Reliance. (Pl.'s Local Rule 56.1 Statement ¶ 2; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 1-6 .)

As an Ethics Officer/Director of Continuing Education, Plaintiff provided continuing education for firms that worked with PaineWebber and assisted those firms with audits by the Securities Exchange Commission ("SEC") or the National Association of Securities Dealers ("NASD"). Plaintiff's pre-injury duties included regularly attending seminars and finance industry events and hosting conferences, lunches, dinners and weekly telecasts for clients. (Pl.'s Local Rule 56.1 Statement ¶ 3-4; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 1-6.) These seminars, conferences, and business meetings occurred both in- and out-of-state. (Pl.'s Local Rule 56.1 Statement ¶ 8-10; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 8-12.) Plaintiff managed a national marketing support center for different investment products and coordinated the printing of sensitive materials. In addition to editing those materials, Plaintiff lifted, carried, and unpacked heavy boxes containing printed material. (Pl.'s Local Rule 56.1 Statement ¶ 5-6; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 1-6.) Plaintiff worked -- at a minimum -- from 8:00 am to 6:00 pm, principally by computer and telephone. (Pl.'s Local Rule 56.1 Statement ¶ 8, 11; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 8-12.) Plaintiff traveled by subway, bus, ferry, or taxi to get to work and client meetings throughout the day. Plaintiff also drove long distances or traveled by train or airplane in order to attend client meetings, seminars, and conferences. (Pl.'s Local Rule 56.1 Statement ¶ 12; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 8-12.)

On January 15, 1999, Plaintiff injured her back at work while lifting boxes. (Pl.'s Local Rule 56.1 Statement ¶ 13; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 13.) Plaintiff was diagnosed with a herniated disc, degenerative disc disease, lumbar radiculopathy*fn2 , and osteoarthritis. (Pl.'s Local Rule 56.1 Statement ¶ 14; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 14.) Defendants concede that Plaintiff was disabled from January 19, 1999 to June 19, 2000, the date on which benefits were discontinued. Plaintiff asserts that she remains disabled and unable to return to work because of the effects of her injury. (Pl.'s Local Rule 56.1 Statement ¶ 14.) Defendants disagree. (Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 14.)

Since her injury, Plaintiff has been treated by an orthopedic surgeon, two spinal surgeons, a rheumatologist, a urologist, and a physical therapist. (Pl.'s Local Rule 56.1 Statement ¶ 18; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 18.) Plaintiff has been prescribed pain medication, anti-inflammatories, and muscle relaxants, including Celebrex, Naprosyn, Valium, Flexeril, Ambien, Vicodin, and Hydrocodone. (Pl.'s Local Rule 56.1 Statement ¶ 22; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 22.) Plaintiff asserts that these medications make her drowsy and interfere with her ability to concentrate. (Pl.'s Local Rule 56.1 Statement ¶ 23.)

Plaintiff reports that her symptoms of pain are exacerbated by sitting or standing for more than 30-40 minutes at a time, requiring her to change her position frequently. (Pl.'s Local Rule 56.1 Statement ¶ 20; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 20.) Additionally, she states that she cannot walk for more than a short distance and spends much of the day lying down to relieve the pain. (Pl.'s Local Rule 56.1 Statement ¶ 21; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 21.)

In June 1999, Plaintiff applied for long term disability ("LTD") benefits under the Plan.

(Pl.'s Local Rule 56.1 Statement ¶ 24; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 24.) In her disability claim, Plaintiff stated that she was unable to work because she was sleepy, was unable to think clearly while on medication, experienced pain while sitting, walking or standing, had nerve pain in her foot, buttock and pelvic areas, and had urinary problems. (Administrative Record at 273 (hereinafter "AR").) Plaintiff's claim was granted by Reliance on August 18, 1999. (AR 214-15.)

After her application for benefits was granted, Plaintiff provided information from her various treating physicians to Reliance. (Pl.'s Local Rule 56.1 Statement ¶ 29; Defs.' Resp. to Pl.'s Local Rule 56.1 Statement ¶ 29.) One piece of information provided was a February 9, 1999 MRI read by Dr. Sharon Lichtblau, who found there was "a small left-sided prolapse of the L4-L5 intervertebral disc extending into the left lateral recess. . . . At L5-S1, there is a minimal posterior bulge on the left side. . . . The remaining discs appear normal." (AR 501.) Defendants also received a March 26, 1999 certificate of disability form, completed by Dr. Charles Gatto, which concluded that Plaintiff could not do her usual work and would need frequent breaks for changes of position. (AR 484-85.) Plaintiff also provided the results of her April 8, 1999 EMG nerve conduction test, which showed an absence of right peroneal nerve wave and mild neuropathic dysfunction in the muscle consistent with a mild right-sided dysfunction in the L5 disc. (AR 404.) Dr. Gatto subsequently diagnosed Plaintiff with a joint inflammation and possible intermittent bilateral lower extremity radiculopathy. (AR 402.) Dr. Gatto also confirmed the findings of the February 9, 1999 MRI. (Id.) Dr. Gatto opined that Plaintiff should be able to return to work in some limited capacity but that she would need to have light duty work and be permitted to change positions and lie down during the day, perhaps even at one-hour intervals. (AR 403.) Dr. Gatto further stated that Plaintiff's pain might preclude her from driving in a car or flying in an airplane for any length of time, but Dr. Gatto also noted that he otherwise found Plaintiff's "upper extremities and [her] attention and cognitive abilities to be grossly normal." (Id.)

Plaintiff also provided Reliance with an April 29, 1999 assessment by Dr. William Main, who noted that Plaintiff suffered from primarily mechanical back pain related to a disc injury suffered at work. He recommended "a prolonged course of physical therapy and other conservative measures prior to considering anymore [sic] invasive treatment." (AR 439-40.) At Plaintiff's initial physical therapy session following this recommendation, the therapist noted that Plaintiff was taking Naproxen, Flexeril and Hydrocodone for pain. (AR 424.) At a subsequent physical therapy session on May 5, 1999, the therapist noted that Plaintiff suffered acute pain from sitting for five minutes during the therapy session. (AR 424-25.)

On July 28, 1999, Dr. Main diagnosed Plaintiff with a lumbar herniated disc at L4-L5, which resulted in symptoms of low back pain radiating down her left leg and which stemmed from her January 15, 1999 work-related incident. (Defs.' Local Rule 56.1 Statement ¶ 12-13; Pl.'s Resp. to Defs.' Local Rule 56.1 Statement ¶ 12-13.) Plaintiff provided Reliance with this diagnosis. Dr. Main referred Plaintiff to physical therapy, acupuncture, and a physciatrist for medical rehabilitation. He did not, however, refer Plaintiff for surgery in the near future. (AR 505-06, 431.) Dr. Main further reported that, in an 8-hour work day with two breaks and lunch, the Plaintiff could stand and sit for one to three hours but could not walk, drive, push or pull. (AR 506.) Dr. Main reported that Plaintiff could occasionally bend, squat, climb, reach above her shoulder, kneel, crawl, use her feet, and lift 10 pounds. (Id.) He further reported that Plaintiff was extremely limited in her ability to perform simple and repetitive tasks, as well as in her ability to perform complex and varied tasks. (Id.) Dr. Main concluded that Plaintiff would reach maximum medical improvement in three to four months and that her condition should be reviewed at that time. (Id.)

On August 5, 1999, Dr. Fred Hochberg examined Plaintiff and noted that she did not suffer from any gross motor or sensory deficit, but he concluded that she was still partially disabled. Dr. Hochberg recommended additional physical therapy three times per week for six to eight weeks. (AR 477-78.) Plaintiff provided Reliance with this diagnosis and recommendation. Plaintiff also provided Reliance with an August 17, 1999 report from Dr. Main in which he recommended that Plaintiff seek immediate medical testing and treatment for her urinary complaints. (AR 360-61.) Plaintiff's claim for benefits was approved the next day, on August 18, 1999. (AR 214-15.)

Shortly after Reliance approved Plaintiff's claim for benefits, she was interviewed, at Reliance's request, by a rehabilitation consultant in order to assess her chances of vocational rehabilitation. The consultant concluded that Plaintiff was "not voicing nor demonstrating motivational behaviors to return to work in the near future and under her current circumstances." (AR 332.)

On October 13, 1999, at Reliance's request, Plaintiff attended an independent medical examination with Dr. Adler. (AR 394.) In preparation, Dr. Adler reviewed records from Dr. Hochberg, Dr. Main, Dr. Lichtblau, and Dr. Gatto, but he did not have -- and therefore did not review -- any MRI pictures or x-rays of Plaintiff. (AR 384.) Dr. Adler opined that Plaintiff had a moderate, partial disability that would benefit from an active physical therapy program. Dr. Adler diagnosed Plaintiff with a degenerative disc disease and mechanical low back pain. (AR 385-86.) He concluded that Plaintiff was capable of sedentary desk work and could return to work if the bladder urodynamic studies did not suggest a spinal pathology. (AR 387-88.)

The results of Plaintiff's subsequent urodynamic testing showed few abnormalities. Dr. Jonathan Vapnek noted that "[t]he elevation in urethral sphincter pressures is commonly seen in those with back problems as well as those who simply have tight pelvic floors." (AR 365.) Dr. Vapnek stated that it might be "instructive to repeat the study when the patient is symptomatic." (Id.)

On June 19, 2000, Reliance informed Plaintiff via letter that she no longer qualified as disabled and that her claim for further LTD benefits was denied as of June 19, 2000. (AR 267-68.) Reliance stated that it had reviewed medical documents from Dr. Main, Dr. Lichtblau, Dr. Gatto, and Dr. Adler. Based on the facts that the urodynamic testing revealed few abnormalities and that the elevated pressure levels were common among both people with low back pain and those with tight pelvic floors, Reliance concluded that Plaintiff could return to her former position, which was characterized as sedentary. (AR 266-68.)

On November 20, 2000, Plaintiff's former counsel appealed Reliance's termination of Plaintiff's benefits. In pursuit of this appeal, Plaintiff provided additional information to Reliance, including a summary of material job duties she had prepared. (AR 91.) She also provided a November 20, 2000 Affidavit recounting her symptoms. (AR 181-84.)

In addition to providing duplicates of information provided at the initial stage, Plaintiff also provided Defendants with new information, including a February 18, 1999 examination report from Dr. Gatto, in which he determined that Plaintiff had degenerative disc disease with back pain and possible bilateral sensory radiculopathy. Dr. Gatto also found joint inflammation, which was greater on the left than on the ...

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