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Shapiro v. Prudential Insurance Co. of America


June 13, 2008


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


Plaintiff Helene Shapiro ("Plaintiff") brings this case challenging determinations denying her long-term disability ("LTD") benefits under a group employee benefit plan (the "Plan") offered by Defendant Prudential Insurance Company of America ("Defendant"). There is no dispute that Plaintiff was a covered employee of the Plan. Plaintiff's Complaint seeks relief under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B).

For the reasons stated in this Memorandum Order, Defendant's Motion for Summary Judgment is GRANTED.

Factual Background

Beginning in July 1994, Plaintiff was employed as a salesperson at Comsys Information Technology Services. (Pl.'s 56.1 ¶ 6; Decl. of Fred N. Knopf ("Knopf Decl."), Ex. I.)*fn1 Plaintiff claims to suffer from a severe case of cervical myofascitis and disc herniation, apparently arising from a 1996 car accident.*fn2 Plaintiff continued to work until November 1999, when she permanently left her job. (Pl.'s 56.1 ¶ 9.) She received short-term disability benefits from November 11, 1999, through February 2, 2000. (Id. ¶ 10.)

Standard of Review and Procedural Posture

Judge Colleen McMahon, to whom this case was initially assigned, issued an order on November 20, 2006, summarily deciding that the "denial of benefits will be reviewed de novo." (Dkt. No. 18.) The case was reassigned to this Court on August 6, 2007. The Court assumes without deciding that, as law of the case, de novo review is appropriate here. See Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 296 (2d Cir. 2004) ("[U]pon de novo review, a district court may render a determination on a claim without deferring to an administrator's evaluation of the evidence."); see also Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 134-35 (2d Cir. 2001) ("[District Court is] free to evaluate [physician's] opinion in the context of any factors it considered relevant, such as the length and nature of the[] relationship [with the claimant], the level of the doctor's expertise, and the compatibility of the opinion with the other evidence.").

As to the ultimate burden, it is both common sense and settled law that "the insured has the burden of proving that a benefit is covered." Mario v. P & C Food Markets, Inc., 313 F.3d 758, 765 (2d Cir. 2002); see also Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 439-41 (2d Cir. 2006) (applying Mario where Plaintiff claimed to have injured neck, shoulders, back, and wrists in 1999 automobile accident, returned to work, then permanently left his job with short-term disability benefits); Morgan Stanley Group Inc. v. New England Ins. Co., 225 F.3d 270, 276 (2d Cir. 2000) ("It is well established under New York law that a policyholder bears the burden of showing that the insurance contract covers the loss.");.

In her papers opposing summary judgment, Plaintiff claimed that the matter was not ripe for summary judgment because of outstanding discovery. (Pl.'s Mem. of Law in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Mem. of Law") 10-11.) The Court held a conference addressing this issue on February 20, 2008, then ordered additional briefing of it and, by Order dated March 4, 2008, found Plaintiff's contention to be without merit.*fn3 Thus, the Court considers Defendant's Motion based on the evidence in the record.

The Court held oral argument on the Motion for Summary Judgment on June 4, 2008. The 2000 Application for Benefits At some unidentified point in 2000, an application for LTD benefits was submitted to Defendant. (Pl.'s 56.1 ¶ 11.)*fn4 Plaintiff highlights that this application included a "signed statement by Dr. [Leonard] Harrison, Plaintiff's physician, stating that Plaintiff was unable to work as of November 4, 1999, and would be able to perform usual work at an unknown future date." (Id.)

In a letter dated July 11, 2000, Defendant's representative explained that Defendant had reviewed Plaintiff's claim and determined that Plaintiff was not eligible for benefits. (Knopf Aff., Ex. J.) The letter began by stating the Plan's definition of disability. (Id.)*fn5 Next, the letter reviewed the evidence submitted by Plaintiff -- a letter from Dr. Harrison, medical records from Dr. Harrison, an MRI dated January 3, 2000, and physical therapy notes from Plaintiff's husband, Larry Shapiro. (Id.) The letter concluded: "We do not find that the available medical evidence submitted by your physician establishes a significant impairment that would warrant total disability. In addition, you worked for nearly three years from the time of the [1996 car accident] and the medical records received do not demonstrate that a significant change has occurred in your condition from the time you were working." (Id.) The letter also advised Plaintiff of her right to appeal the determination. (Id.)

Plaintiff now contends that "[d]espite ample medical records indicating the contrary, Defendants determined in July 2000 that Plaintiff was not totally disabled." (Pl.'s Mem of Law 18.) Plaintiff thus asks the Court to determine disability under the Plan principally based on Dr. Harrison's conclusion that Plaintiff "cannot work." (Id. 13.) First of all, there is no treating physician rule applicable to this case, as there would be in the Social Security context, commanding special deference to a treating physician. See Mood v. Prudential Ins. Co. of Am., 379 F. Supp. 2d 267, 281 (E.D.N.Y. 2005) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003)); see also Connors, 272 F.3d at 135 n.4 ("We do not adopt for these purposes -- that is, when a district court reviews an ERISA administrator's decision under a de novo standard -- the 'treating physician rule' . . . ."). Second, even with the benefit of Dr. Harrison's interpretive letter dated June 6, 2006 -- a benefit the initial claim reviewer did not have -- Plaintiff's submission fails to convincingly show that Plaintiff was disabled, as defined by the Plan, as of November 1999. In his notes and his letter, Dr. Harrison says little more than that Plaintiff's pain became worse. His statement that it would prevent her from working in her then-current or any other job is abrupt, conclusory, and entirely without explanation for its suddenness. Any reasonable claim reviewer would want to understand the basis on which a claimant seeks LTD benefits, and Plaintiff's submission was and is insufficient to provide such an understanding.*fn6

Plaintiff also strenuously argues that Defendant's review of her application was defective because Defendant refused to consider treatment records submitted by Plaintiff's husband, Larry Shapiro. Plaintiff submits that Defendant's "thinly veiled accusations against Mr. Shapiro's character and refusal to consider his findings and review of Plaintiff's condition are preposterous." (Pl.'s Mem. of Law. 13 n.1.) To the contrary, it is curious that Plaintiff would expect Defendant to award LTD benefits relying substantially on Plaintiff's husband's representation about her medical condition. The Court makes no insinuation about Mr. Shapiro's professional competence or candor. Rather, the Court observes merely that Plaintiff's spouse stood and stands to gain financially from a benefits award from Defendant to Plaintiff, and therefore is subject to a structural bias that makes his medical representations of limited value. Cf. 81 Am. Jur. 2d Witnesses § 230 ("The traditional common-law rule . . . provides that neither party to a marriage can be a witness in favor of or against the other, in a suit to which the other is a party, or has a direct or immediate interest."). Moreover, Plaintiff was always free, and was invited, to augment the medical evidence in support of her LTD claim.

Beyond this, Plaintiff's successful effort to persuade Judge McMahon that de novo review applies here makes any failure by Defendant to consider the physical therapy records irrelevant. The records of Larry Shapiro submitted by Plaintiff include a one-page "Initial Evaluation" dated December 20, 1996, as well as notes apparently reflecting evaluations from March 3, 1999, through March 11, 2000. (Dkt. No. 37 at 23-31.) Unfortunately, the handwritten notes appeared illegible to the Court (at least to a person not familiar with Mr. Shapiro's handwriting), and Plaintiff's briefing fails to give any indication of what in the notes she believes supports her claim. Almost certainly, the initial claim reviewers faced the same limitation, and did not pursue the issue of the notes further because of the structural bias and because the notes were of a physical therapist rather than a physician.*fn7

Accordingly, no reasonable finder of fact could agree with Plaintiff that she had shown her entitled to LTD benefits under the Plan based on her 2000 application.

The 2005 Appeal of the Denial of Benefits

Plaintiff did not act on the denial notice from Defendant for approximately five years, until she submitted an appeal letter on July 4, 2005. (Pl.'s 56.1 ¶ 13.) This initial appeal letter requested that Defendant "review [her] case and reverse [Defendant's] decision," but did not provide any additional medical evidence for Defendant to assess. (Knopf Decl., Ex. K.)

Neither Plaintiff's letter to Defendant nor anything in Plaintiff's submissions to the Court explains the extraordinary delay between Defendant's letter of July 2000 denying LTD benefits and Plaintiff's letter of July 2005 appealing this denial. Cf. 29 C.F.R. § 2560.503-1(h)(1) & (h)(3)(i) (stating that an employee benefit plan must provide claimant with "a reasonable opportunity . . . [for a] full and fair review of . . . the adverse benefit determination" and that such reasonable period must be at least 180 days). At oral argument, the Court asked Plaintiff's counsel if there was any explanation for such delay, to which Plaintiff's counsel replied that he did not "have a good explanation for that."

On September 19, 2005, Defendant's disability consultant replied to Plaintiff stating that Prudential was "unable to make a determination on [Plaintiff's] appeal at this time and [has] suspended [its] review pending receipt of additional information as outlined." (Knopf Decl., Ex. J.) Defendant ultimately did review (or at least had the opportunity to review) additional information, which evidently included supplemental physical therapy records from Larry Shapiro, notes from a 2001 examination by orthepedist Dr. Michelson, notes from a late 2000 examination by neurosurgeon Dr. Radna, hospital records relating to plaintiff's November 2002 delivery of twins by cesarean section, and miscellaneous doctor's notes by a Dr. Unis for a period from 2003 to 2005. (Id.)*fn8 Defendant's response dated December 8, 2005, cogently reviews all of this material and concludes that the 2001 decision to disallow benefits had been "appropriate." (Id.) On May 16, 2006, Plaintiff's counsel wrote to Defendant purporting to make "another appeal" and inviting Defendant to "discuss settlement of this claim prior to commencement of suit." (Id., Ex. L.) Plaintiff did not wait for an answer as on June 22, 2006, Plaintiff filed this case.

Even assuming that the five-year-late appeal is proper, no reasonable finder of fact could determine on the basis of the cumulative material submitted to Defendant that Plaintiff had become permanently disabled at the time she stopped working in November 1999. The evidence submitted simply does not show a disability that indefinitely prevented Plaintiff from working as a technology salesperson. Reviewing the question de novo, the Court reaches the same conclusions as did Defendant in its letter of December 8, 2005. When the unexplained five-year delay in appeal is also considered, Plaintiff's contention that she properly showed her entitlement to LTD benefits running from a period between November 1999 and July 2000 is without merit.

Plaintiff's Arguments

At oral argument, Plaintiff's counsel repeatedly accused Defendant of having "ignored," "discounted," and "cherry-picked" evidence in reaching its determination that Plaintiff had not shown entitlement to LTD benefits. Even if this were the case, Defendant's actions are entirely irrelevant under the de novo standard of review that Plaintiff sought to have deemed applicable (and that was granted by Judge McMahon). Cf. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (explaining that de novo standard of review is different from"arbitrary and capricious" standard).

Also at oral argument, Plaintiff's counsel stated that, on the basis of the record, he was asking the Court to award benefits to Plaintiff (even while opposing Defendant's Motion for Summary Judgment because he claimed there were factual disputes). Cf. Locher, 389 F.3d at 294 (stating that where de novo standard applies, district courts "must exercise fully their power to review benefits determinations de novo and to be substitute administrators" (internal quotation marks omitted)). As counsel conceded, this conclusion was inescapable based on the standard set at Plaintiff's own behest. But Plaintiff's arguments in briefing and in court focus on Defendant's conduct and not on what evidence in the record shows Plaintiff to have been eligible for benefits under the Plan -- the only issue that matters to the resolution of this Motion and this case.*fn9

On seeing this at oral argument, Plaintiff's counsel retreated to say that it would "not be an unwelcome" outcome to his client for the Court to remand the case for further review. Given the history of the litigation, however, this makes no sense. The June 2006 correspondence between Plaintiff's attorney Maureen Williams and Defendant's Senior Appeals Analyst Tara Johnson clearly shows that while Plaintiff was threatening this suit, Defendant remained open to consideration of additional medical evidence and/or further review of what was already in the record. It was Plaintiff who chose to effectively remove the review to federal court.

The record of this claim and this case trigger the conclusion that this is a baseless suit. Plaintiff has not submitted to this Court sufficient evidence -- even drawing all inferences in Plaintiff's favor as the non-moving party on this motion -- to warrant a determination of disability. Indeed, Plaintiff has not mustered arguments in either briefing or at oral argument as to how the Court could make such a finding under the standard of review that it sought. While Plaintiff now suggests that the case might be remanded for further presentation of evidence to Defendant in support of her claim, permitting such an outcome would turn an ERISA lawsuit such as this into a no-lose proposition for a dissatisfied claimant. It cannot be appropriate that such a person -- like Plaintiff here -- can bring suit in federal court seeking to have a court declare her eligible for benefits without the possibility that the court would alternatively award repose to a defendant by denying the claim.

Plaintiff chose the time to bring this suit while Defendant remained open to further development or consideration of the record (even after Plaintiff's five-year delay from the initial determination to her first appeal). Plaintiff had opportunity to place into the record any evidence she wanted. The applicable standard of review designated by Judge McMahon was that of Plaintiff's choosing. Plaintiff was awarded the additional discovery she requested, even as her counsel failed to timely act on Judge McMahon's order providing for it. At oral argument, Plaintiff was invited to supplement the meager arguments in the briefing.

Against this litigation history, the Court considers that the Supreme Court has explained that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where, as here, "the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted). "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). As the Supreme Court has emphasized, the issue of fact "must be 'genuine.'" Matsuishita, 475 U.S. at 586.

At most, Plaintiff's suggestive, vague, and unsubstantiated claims about the medical record have established metaphysical doubt about her entitlement to LTD benefits, but it is clear that this is not enough to survive summary judgment. Plaintiff has had a full and fair opportunity to place into the record evidence creating a genuine factual issue. Nevertheless, Plaintiff has failed to take that opportunity to submit any such evidence.

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