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Curry v. American International Group

September 11, 2008


The opinion of the court was delivered by: Cedarbaum, J.

Nettie M. Curry sues American International Group, Inc. Plan No. 502 (the "Plan") and American International Life Assurance Co. of New York ("AI Life") under § 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a), for reinstatement of long-term disability benefits. Curry's benefits were terminated after AI Life determined that she was no longer disabled from performing the duties of "any occupation" under the terms of the Plan. Plaintiff and defendants move for summary judgment on undisputed facts. For the following reasons, Curry's motion for summary judgment is granted, and defendants' motion is denied.


Curry was employed by American International Group ("AIG") as a Regional Insurance Underwriting Manager until May 16, 2001. She is a participant in AIG's Plan, a long-term disability benefits plan issued by AI Life. The Plan is an "employee welfare benefit plan" as defined by 29 U.S.C. § 1002(1).

According to the Plan, AIG is the policyholder and plan administrator, but AI Life, the insurer, has "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of [the Plan]."

Curry suffers from degenerative osteoarthritis in both knees and has had multiple surgeries on her knees. She is also diabetic. Her knee condition was primarily treated by her orthopaedic surgeon, Dr. Martin L. Sorger, at the Montclair Orthopaedic Group ("Montclair"). Due to her condition, Curry stopped working on May 16, 2001. On October 15, 2001, she filed a claim for disability benefits with AI Life.

There are two tiers of benefits with distinct criteria under the Plan. In the first tier, if the employee is disabled from performing the essential duties of her occupation, she is eligible to receive benefits for a period of two years. After that two-year period, in order to continue receiving disability benefits, the employee must be disabled from performing the duties of any occupation for which she is "qualified by education, training or experience."

Benefits Approved

In a letter dated January 23, 2002, AI Life found that Curry was disabled from her occupation. AI Life approved Curry's claim for benefits under the Plan, effective November 13, 2001. On February 9, 2002, the Social Security Administration notified Curry that it found her to be disabled as of May 17, 2001, and that she was entitled to disability benefits, effective November 1, 2001.

On May 19, 2003, AI Life initiated an investigation to determine if Curry would continue to qualify for disability benefits after November 13, 2003, the date on which the second phase of disability benefits would begin. As part of this investigation, AI Life sent Dr. Sorger a questionnaire and a "Physical Capacities Evaluation" form (collectively the "PCE") to gather information on Curry's ability to work. The PCE was signed by Dr. Sorger and returned to AI Life on February 26, 2004 with details on Curry's physical limitations. Among the answers given, Dr. Sorger indicated twice that Curry was not to return to work. He also noted that her condition was unlikely to change.

On March 17, 2004, AI Life determined that Curry's disability qualified for the second tier of benefits and approved her receipt of benefits after November 13, 2003.

Benefits Revoked

Dr. Sorger retired from practice and left Montclair on April 30, 2004. AI Life followed up on its benefits determination by sending a letter addressed to Dr. Sorger on June 7, 2004 with further questions about Curry's physical capabilities. No response to that letter was received, so AI Life re-sent it via facsimile on July 9, 2004. An unsigned response to those questions from someone at Montclair was faxed back to AI Life on July 28, 2004. Two of the relevant questions and answers read as follows:

1. In the Physical Capacity Evaluation (PCE), completed by you on 2/26/04, there was no indication of the length of time Ms. Curry could sit, stand, walk and drive within [an] 8 hour workday. Would you please comment on this now?

Ms. Curry can sit & drive reasonably unlimited in an 8 hour workday. Standing & walking need[] to be minimized with her osteoarthritic knees.

2. You have indicated that Ms. Curry will not be able to return to work, however with the functionality given to Ms. Curry on the PCE she has the ability to perform a sedentary occupation. Would you concur with this?

The patient can perform a sedentary occupation. I would agree with this.

AI Life sent another letter addressed to Dr. Sorger on August 6, 2004, inquiring as to Curry's "handling" motor skills. In the PCE, Dr. Sorger indicated that Curry could only occasionally perform "handling" activities, though she could frequently perform "fingering" skills. AI Life's August 6, 2004 letter asked the following question: "If Ms. Curry can frequently do the fine motor skills of fingering and feeling, would she also be able to frequently perform the gross motor skill of handling?" An unsigned "yes" response, contradicting Dr. Sorger's initial finding, was sent to AI Life.

These new responses, received by AI Life from an unidentified person at Montclair after Dr. Sorger had already retired, were featured prominently in an Employability Analysis Report ("EAR") prepared by AI Life on September 14, 2004. In the EAR, the unsigned responses from an unidentified person at Montclair in July and August of 2004 (the "unidentified Montclair responses") are treated as if they were from Dr. Sorger. The EAR concluded that Curry was employable and listed four occupations in the insurance industry within her physical capabilities and prior work experience.

On September 27, 2004, AI Life informed Curry that her benefits were being terminated, effective September 30, 2004, because it found that she was no longer disabled from "any occupation." AI Life cited Dr. Sorger's PCE, the unidentified Montclair responses, and AI Life's EAR in making that determination. The letter indicates that AI Life again treated the unsigned and unidentified Montclair responses as responses from Dr. Sorger, despite the fact that Dr. Sorger was not at Montclair at that time.

AI Life sent Curry another letter on October 18, 2004 confirming its decision to terminate her benefits. That letter stated that AI Life had reviewed further documents from her medical file at Montclair, including notes from her last two visits on June 1, 2004 and October 5, 2004. Curry saw Dr. Mark D. Chase, an orthopaedic surgeon, on those visits. In the October 18, 2004 letter, AI Life stated that, according to a nurse at Montclair, Dr. Chase was the source of the unidentified Montclair responses. But further inquiry by Curry revealed conflicting information from Montclair, and ultimately no confirmation was forthcoming from Montclair as to the source of the unidentified Montclair responses. All parties agree that someone at Montclair other than Dr. Sorger sent the unidentified Montclair responses.

Curry's First Appeal

Before Curry filed a letter of appeal with AI Life, she was examined by Dr. James M. Lee, an orthopaedic surgeon, on October 13, 2004. Dr. Lee concluded that Curry "is completely and totally disabled from the job market." Curry filed her first appeal on October 21, 2004. In her appeal she noted Dr. Sorger's retirement prior to June of 2004, presented information obtained from Montclair that indicated that Dr. Chase was not the author of the unidentified Montclair responses, and attached a copy of Dr. Lee's report.

AI Life sent Curry's file for an external medical file review to Dr. Robert Y. Pick of the University Disability Consortium on October 28, 2004. In requesting the review, AI Life presented Dr. Pick, an orthopaedist, with the following instruction:

Her attending physician, Dr. Sorger, has advised that she is capable of working, but she has now submitted a letter from an orthopedist that she is not capable. Please advise ...

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