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Alfano v. Cigna Life Insurance Co. of New York

January 30, 2009

STEVEN ALFANO, PLAINTIFF,
v.
CIGNA LIFE INSURANCE COMPANY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiff Steven Alfano commenced this action against defendant CIGNA Life Insurance Company of New York, challenging the termination of his long-term disability benefits under Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), codified at 29 U.S.C. § 1132(a)(1)(B). Both parties now move for summary judgment. For the reasons discussed below, plaintiff's motion will be granted, and defendant's motion will be denied.

BACKGROUND

I. The Long-Term Disability Plan

Through group insurance contract number NYK-1972 (the "Policy"), defendant CIGNA Life Insurance Company of New York ("CIGNA") provides benefits to disabled participants in the Cornell University Weill Medical College Long-Term Disability Insurance Plan (the "Plan").*fn1 (P. 56.1 Stmt. ¶ 3; D. 56.1 Stmt. ¶ 2; CLICNY 588.) According to the Plan, a participant is disabled when, because of injury or sickness, "he is unable to perform all the material duties of his regular occupation," or "he is earning less than 80% of his Indexed Basic Earnings." (CLICNY 593; see also P. 56.1 Stmt. ¶ 7; D. 56.1 Stmt. ¶ 6.) Provided a participant demonstrates his disability and remains disabled for the 180-day waiting period established by the Plan, he is entitled to a monthly benefit equal to the lesser of: (1) 60% of his "Monthly Basic Earnings"*fn2 (up to a maximum of $15,000) less the amount of any "Other Benefits" received for that month, "excluding any Other Benefits received by or on behalf of [his] dependents," or (2) 70% of his "Basic Earnings" less the amount of any "Other Benefits," including those received by his dependents.*fn3 (CLICNY 598; see also P. 56.1 Stmt. ¶ 4; D. 56.1 Stmt. ¶¶ 5, 7.) Where a participant becomes disabled prior to his sixty-third birthday, long-term disability benefits ("LTD benefits") -- which are adjusted for a maximum of five annual cost of living increases of 3% -- issue until the participant is no longer disabled or until he turns sixty-five, whichever is earlier. (P. 56.1 Stmt. ¶¶ 5-6; D. 56.1 Stmt. ¶¶ 8, 10; CLICNY 603, 604.)

II. Alfano's Work History

Plaintiff Steven Alfano, a 51-year old resident of New York who was hired by Cornell's Weill Medical College ("Weill") on August 5, 1991, as a wage and salary manager, participated in the Plan. (P. 56.1 Stmt. ¶¶ 1, 9, 10; D. Suppl. 56.1 Stmt. ¶ 1, 9, 10; D. 56.1 Stmt. ¶¶ 1, 4; CLICNY 527.) As a wage and salary manager, he "administer[ed] the non-academic compensation program to ensure internal and external equity and compliance with internal policy and federal and local laws governing wage and salary." (D. 56.1 Stmt. ¶ 14; P. Suppl. 56.1 Stmt. ¶ 14.) According to Weill's description of the position, because "[m]ost work [is] performed sitting at [a] desk," the employee "[m]ust be able to sit for extended periods," (P. 56.1 Stmt. ¶ 11; D. Suppl. 56.1 Stmt. ¶ 11; CLICNY 479), though he could get up and move about as needed.

(D. 56.1 Stmt. ¶ 15; P. Suppl. 56.1 Stmt. ¶ 15; cf. CLICNY 379.) Consistent with this description, and in reliance on the definitions outlined in the U.S. Department of Labor's Dictionary of Occupational Titles (the "DOT"), CIGNA itself classified Alfano's occupation as sedentary. (P. 56.1 Stmt. ¶ 11; D. Suppl. 56.1 Stmt. ¶ 11; CLICNY 104, 379, 479, 879.)

III. Alfano's Pre-Application Medical History

On May 15, 1996, after being involved in a car accident that left him with back pain and left leg weakness, Alfano began receiving medical treatment from Dr. Michael Alexiades, an orthopedic surgeon. (P. 56.1 Stmt. ¶ 20; D. Suppl. 56.1 Stmt. ¶ 20; CLICNY 350.) Alfano's condition worsened in May 2000, and on or about June 5, 2000, following Dr. Alexiades's conclusion that Alfano's back pain left him "unable at this point to work," Alfano left his job at Weill. (P. 56.1 Stmt. ¶¶ 21-22; D. Suppl. 56.1 Stmt. ¶¶ 21-22; CLICNY 116, 515, 527.) A lumbar MRI conducted several days later showed that Alfano suffered from moderate to severe spondylosis and moderate spinal stenosis*fn4 at the L5-S1 level, with mild impingement on the left L5 nerve root.*fn5 (P. 56.1 Stmt. ¶ 23; D. Suppl. 56.1 Stmt. ¶ 23; CLICNY 283.) Responding to a later request made pursuant to the Family and Medical Leave Act, Dr. Alexiades opined that Alfano could not do any lifting or prolonged sitting or standing. (P. 56.1 Stmt. ¶ 24; D. Suppl. 56.1 Stmt. ¶ 24; CLICNY 290-91.) On July 20, 2000, an electromyography ("EMG")*fn6 interpreted by Dr. Stephen Scelsa, a neurologist, revealed that Alfano had either an L5-S1 radiculopathy or polyneuropathy.*fn7 (P. 56.1 Stmt. ¶ 25; D. Suppl. 56.1 Stmt. ¶ 25; CLICNY 284-86, 485-89.)

Despite receiving two epidural injections during this time, Alfano continued to experience severe back pain and numbness of the legs. (P. 56.1 Stmt. ¶ 26; D. Suppl. 56.1 Stmt. ¶ 26; CLICNY 116.) Dr. Alexiades therefore referred him to Dr. Sean McCance, a spine specialist. (Id.; CLICNY 454.) After evaluating Alfano, Dr. McCance concluded that Alfano suffered from discogenic back pain and L5-S1 radiculopathy, both of which stemmed from an impingement of the L5 nerve root. (P. 56.1 Stmt. ¶ 27; D. Suppl. 56.1 Stmt. ¶ 27; CLICNY 454-55.) Because of the weakness in Alfano's legs, Dr. McCance strongly recommended that Alfano undergo surgery for a fusion at L5-S1. (Id.)

Following Dr. McCance's recommendation, Alfano sought a second opinion from Dr. Robert Snow, a neurosurgeon. (P. 56.1 Stmt. ¶ 28; D. Suppl. 56.1 Stmt. ¶ 28; CLICNY 492.) Dr. Snow diagnosed Alfano with L5-S1 radiculopathy secondary to lumbar stenosis, and recommended a laminectomy and possible discectomy.*fn8 (Id.) In an effort to explore his options for non-surgical treatment, Alfano also consulted Dr. James Farmer, an orthopedic spine specialist at the Hospital for Special Surgery. (P. 56.1 Stmt. ¶ 29; D. Suppl. 56.1 Stmt. ¶ 29; CLICNY 292-93.) Dr. Farmer diagnosed Alfano with degenerative disc disease at the L5-S1 level and recommended physical therapy. (Id.) When physical therapy failed to alleviate Alfano's symptoms, Dr. Farmer also diagnosed him with radicular symptoms and identified L5 nerve root compression as the probable cause. (P. 56.1 Stmt. ¶ 30; D. Suppl. 56.1 Stmt. ¶ 30; CLICNY 294.) During a subsequent visit, Dr. Farmer renewed Alfano's pre-existing prescription for Vioxx*fn9 and suggested that he undergo additional physical therapy. (P. 56.1 Stmt. ¶ 31; D. Suppl. 56.1 Stmt. ¶ 31; CLICNY 295.)

IV. Alfano's Application for Social Security and LTD Benefits

Shortly after he became unable to work, Alfano applied for SSD benefits. (Cf. P. 56.1 Stmt. ¶¶ 13, 16; D. Suppl. 56.1 Stmt. ¶¶ 13, 16.) On August 27, 2002, the Social Security Administration ("SSA") concluded that he was totally disabled as of June 5, 2000, and awarded him monthly benefits. (P. 56.1 Stmt. ¶ 16; D. Suppl. 56.1 Stmt. ¶ 16; CLICNY 217-18, 257-67.) In reaching this conclusion, a United States Administrative Law Judge ("ALJ") found Alfano unable to perform his past work as a wage and salary administrator, as well as any other type of work. (P. 56.1 Stmt. ¶ 17; D. Suppl. 56.1 Stmt. ¶ 17; CLICNY 266.) In particular, he cited Alfano's "need to sit and stand at will and his need to lie down approximately 1/2 hour to 2 hours during each day" as the source of this inability. (CLICNY 264.)

On December 1, 2000, Alfano also applied for LTD benefits under the Plan. (P. 56.1 Stmt. ¶ 32; D. Suppl. 56.1 Stmt. ¶ 32; CLICNY 515-27.) The application required his doctors to complete CIGNA's Physical Ability Assessment ("PAA") form. (P. 56.1 Stmt. ¶ 33; D. Suppl. 56.1 Stmt. ¶ 33; CLICNY 497-98, 1006-007.) The PAA uses the terms "continuously," "frequently," and "occasionally," and specifies that, in an 8-hour day, "continuously" means more than 5.5 hours, "frequently" means 2.5 to 5.5 hours, and "occasionally" means less than 2.5 hours. (P. 56.1 Stmt. ¶ 34; D. Suppl. 56.1 Stmt. ¶ 34; CLICNY 497-98.) According to a PAA completed by Dr. Snow, Alfano could sit only occasionally, i.e., less than 2.5 hours in an 8-hour day. (P. 56.1 Stmt. ¶ 35; D. Suppl. 56.1 Stmt. ¶ 35; CLICNY 493.) In a separate PAA, Dr. Scelsa opined that Alfano could sit frequently, i.e., between 2.5 and 5.5 hours in an 8-hour day.

(P. 56.1 Stmt. ¶ 36; D. Suppl. 56.1 Stmt. ¶ 36; CLICNY 483.)

After receiving Alfano's PAA forms, CIGNA decided to conduct an independent medical exam ("IME") before resolving his claim. (P. 56.1 Stmt. ¶ 37; D. Suppl. 56.1 Stmt. ¶ 37; CLICNY 388.) On February 5, 2001, CIGNA requested the IME from an orthopedist specializing in back care. (P. 56.1 Stmt. ¶ 38; D. Suppl. 56.1 Stmt. ¶ 38.) Two days later, it informed Alfano that his failure to attend the scheduled IME "may result in the termination of [his] present and future benefits." (P. 56.1 Stmt. ¶ 39; D. Suppl. 56.1 Stmt. ¶ 39; CLICNY 359.) On February 9, 2001, however, CIGNA canceled the IME without giving a reason. (P. 56.1 Stmt. ¶ 39; D. Suppl. 56.1 Stmt. ¶ 39; CLICNY 358.)

Alfano's initial claim was denied on February 12, 2001, on the grounds that he had not satisfied the requisite 180-day waiting period. (P. 56.1 Stmt. ¶ 40; D. Suppl. 56.1 Stmt. ¶ 40; CLICNY 379.) In particular, CIGNA noted that although a July 20, 2000, evaluation performed by Dr. Scelsa identified certain restrictions on Alfano's ability to work, none of Dr. Scelsa's restrictions -- nor those identified by any of Alfano's other treating physicians -- would have prevented him from performing his own occupation, which fell "within the sedentary physical demand level as outlined by the U.S. Department of Labor's Dictionary of Occupational Titles." (Id., CLICNY 376-80, 454-55, 483, 493; cf. P. 56.1 Stmt. ¶ 41; D. Suppl. 56.1 Stmt. ¶ 41.) In a March 19, 2001, letter, Alfano's then-counsel appealed the denial. (P. 56.1 Stmt. ¶ 43; D. Suppl. 56.1 Stmt. ¶ 43.) CIGNA replied on April 12, 2001, upholding the denial on the same grounds cited in its original decision. (P. 56.1 Stmt. ¶ 44; D. Suppl. 56.1 Stmt. ¶ 44; CLICNY 362-65.)

On April 15, 2002, Alfano again appealed his denial of LTD benefits. (D. 56.1 Stmt. ¶ 20.) In support of his appeal, he later submitted additional medical records, including MRIs of his spinal cord and other notes and reports from Drs. Alexiades, Farmer, Roach, and Scelsa.*fn10

(D. 56.1 Stmt. ¶ 21; P. Suppl. 56.1 Stmt. ¶ 21; CLICNY 248-54, 279-317.) The records included a July 12, 2002, report, in which Dr. Alexiades concluded that Alfano had to lie down for 1.5 - 2 hours per day, could not sit, stand, or walk for prolonged periods of time (i.e., 15-20 minutes), could not lift or carry more than 5 pounds, had experienced no change in condition since he stopped working on June 5, 2000, and therefore remained "totally disabled." (P. 56.1 Stmt. ¶ 59; D. Suppl. 56.1 Stmt. ¶ 59; CLICNY 253-54.) This report echoed a February 7, 2002, record included with the April 2002 appeal in which -- relying on Alfano's positive straight leg raise, weakness walking on his toes, and MRI test results -- Dr. Alexiades diagnosed Alfano with L5-S1 spondylosis with stenosis and radiculopathy, and determined that he must lie down for .5 - 2 hours two to three times during an 8-hour workday, and could sit for only 2 hours in an 8-hour workday. (P. 56.1 Stmt. ¶ 52; D. Suppl. 56.1 Stmt. ¶ 52; P. Suppl. 56.1 Stmt. ¶ 20; CLICNY 297-303.)

Alfano also submitted a July 24, 2002 letter from Dr. Roach, noting that Dr. Roach had diagnosed him with approximately 27 different medical conditions,*fn11 prescribed him Vicodin and Vioxx for pain, given him a poor prognosis, and concluded that "he is totally disabled and should not return to work." (P. 56.1 Stmt. ¶ 60; D. Suppl. 56.1 Stmt. ¶ 60; CLICNY 250-52.) Dr. Roach reasoned:

[Alfano] experiences constant pain. He must lie down for approximately one-half to two hours per day because of fatigue associated with his pain. He cannot sit, stand or walk for any prolonged period of time (i.e., 15-20 minutes), and cannot lift or carry anything weighing over five pounds. Moreover, his condition has essentially been the same since June 5, 2000, and all of these limitations have been applicable since that time. (CLICNY 251.) These findings were consistent with a February 12, 2002, record created by Dr. Roach that found that Alfano needed to lie down for .5 - 2 hours up to 3 times per 8-hour workday, and could sit only 2 hours in an 8-hour workday.*fn12 (P. 56.1 Stmt. ¶ 53; D. Suppl. 56.1 Stmt. ¶ 53; CLICNY 304-310.)

Lastly, Alfano's supplemental submission contained various MRI test results. (D. 56.1 Stmt. ¶ 21; P. Suppl. 56.1 Stmt. ¶ 21.) Consistent with a June 9, 2000, MRI finding moderate to severe L5-S1 spondylosis with mild impingement of the L5 nerve root and moderate L5-S1 spinal stenosis (CLICNY 283), an August 18, 2001, MRI showed that Alfano suffered from moderate to severe spondylosis, and moderate stenosis at the L5-S1 level, as well as mild stenosis at the L4-L5 level.*fn13 (P. 56.1 Stmt. ¶ 46; D. Suppl. 56.1 Stmt. ¶ 46; CLICNY 131.)

On September 13, 2002, Alfano further advised CIGNA that the SSA had deemed him totally disabled from any kind of work as of June 5, 2000. (P. 56.1 Stmt. ¶ 61; D. Suppl. 56.1 Stmt. ¶ 61; CLICNY 256-267.) He also furnished CIGNA with a copy of the SSA's decision.

(Id.)

By letter dated December 2, 2002, CIGNA advised Alfano that it needed to "consult a health care professional with the appropriate training and experience in the field of medic[ine] involved in the medical judgment." (P. 56.1 Stmt. ¶ 64; D. Suppl. 56.1 Stmt. ¶ 64; CLICNY 243.) CIGNA subsequently requested that Dr. David Trotter, an orthopedic surgeon, conduct a peer review of Alfano's file. After reviewing the file, Dr. Trotter concluded that Alfano was unable to perform his regular occupation on a full-time basis from June 6, 2000, to December 10, 2002 -- the date of the report. (P. 56.1 Stmt. ¶¶ 65-66, 68; D. Suppl. 56.1 Stmt. ¶¶ 65-66, 68; CLICNY 233-36.) Even assuming Alfano were to take a part-time position, Dr. Trotter believed that he still could not perform if the occupation did not allow for changing physical positions and occasionally lying down. (CLICNY 233-36.) He also opined that Alfano's stenosis and nerve root impingement -- the conditions that precluded him from working full-time in his sedentary occupation -- would persist no matter what physical position he assumed. (P. 56.1 Stmt. ¶ 67; D. Suppl. 56.1 Stmt. ¶ 67; CLICNY 235.)

Based on Dr. Trotter's conclusion and a medical review conducted by Nurse Karen Haley that corroborated Alfano's inability to perform sedentary work, Medha Bharadwaj -- a CIGNA appeals claim manager -- reversed the decision denying Alfano LTD benefits, and Alfano's claim was re-opened. (P. 56.1 Stmt. ¶ 69; D. Suppl. 56.1 Stmt. ¶ 69; CLICNY 105-06.) In overturning CIGNA's denial of the claim, Bharadwaj reasoned that Alfano's symptoms and abnormal exam and test results all supported ongoing severe multilevel spinal stenosis and nerve root impingement sufficient to preclude him from performing his sedentary occupation. (P. 56.1 Stmt. ¶ 70; D. Suppl. 56.1 Stmt. ¶ 70; CLICNY 105.) In particular, she noted that Alfano's L5- S1 nerve roots appeared to be the cause of his radiculopathy; that surgery was indicated; that Alfano's pain correlated with his medical findings; and that his body size may have contributed to his severe spinal pathology. (P. 56.1 Stmt. ¶ 74; D. Suppl. 56.1 Stmt. ¶ 74; CLICNY 105.)

By letter dated January 24, 2003, CIGNA advised Alfano of its decision, and thereafter paid Alfano benefits due from December 3, 2000, to February 2, 2003. (P. 56.1 Stmt. ¶ 76; D. Suppl. 56.1 Stmt. ¶ 76; D. Mem. 3-4.) CIGNA's January 24, 2003, letter was followed by an April 10, 2003, letter, advising Alfano that his receipt of future benefits required him to prove that he was unable to engage in the essential duties of his regular occupation.*fn14 (P. 56.1 Stmt. ¶ 79; D. Suppl. 56.1 Stmt. ¶ 79; CLICNY 168.) Consistent with the terms of the Plan, Alfano's LTD benefits were reduced by the amount of his SSD benefits. (P. 56.1 Stmt. ¶ 18; D. Suppl. 56.1 Stmt. ¶ 18; see also P. 56.1 Stmt. ¶ 75; D. Suppl. 56.1 Stmt. ¶ 75.)

Following its decision to grant Alfano LTD benefits, CIGNA periodically reviewed his claim to ensure his continued eligibility. In doing so, CIGNA would request, and Alfano or his treating physicians would submit, periodic updates regarding his condition, including updated medical records and disability questionnaires. On April 20, 2003, Alfano completed CIGNA's disability questionnaire, which requested information regarding his work history, medications, and SSD benefits, among other things. (P. 56.1 Stmt. ¶ 82; D. Suppl. 56.1 Stmt. ¶ 82; CLICNY 159-61.) On July 24, 2003, CIGNA requested that Dr. Alexiades complete a PAA form. (P. 56.1 Stmt. ¶ 83; D. Suppl. 56.1 Stmt. ¶ 83; cf. CLICNY 143.) Approximately one week later, Robert Castellon, one of CIGNA's senior claim managers, concluded that Alfano's medical records and Dr. Trotter's report supported a finding of total disability. (P. 56.1 Stmt. ¶ 84; D. Suppl. 56.1 Stmt. ¶ 84; CLICNY 103.)

Subsequent records were consistent with those supporting Alfano's disability. X-rays of his cervical spine in September 2004 showed degenerative disc disease, disc space narrowing, and osteophytes at the C6-C7 level. (P. 56.1 Stmt. ¶ 85; D. Suppl. 56.1 Stmt. ¶ 85; CLICNY 963.) In response to CIGNA's request for an update, Dr. Roach opined in an October 2004 PAA that Alfano could sit, stand, and walk occasionally. (P. 56.1 Stmt. ¶ 86; D. Suppl. 56.1 Stmt. ¶ 86; CLICNY 968-69, 975-76.) Consistent with this conclusion, in November 2004 Dr. Roach found that Alfano suffered from a class 5 physical impairment, which imposes severe limitations on one's functional capacity and renders him incapable of even minimal sedentary activity. (P. 56.1 Stmt. ¶ 90; D. Suppl. 56.1 Stmt. ¶ 90; CLICNY 961.)

Dr. Roach's PAA ultimately led CIGNA to request that Rosemary Jenkins, a Vocational Rehab Counselor ("VRC"), conduct an exploratory Transferable Skills Analysis ("TSA").*fn15

(CLICNY 80, 101; cf. P. 56.1 Stmt. ¶ 87; D. Suppl. 56.1 Stmt. ¶ 87.) She conducted the analysis on November 18, 2004. (P. 56.1 Stmt. ¶ 89; D. Suppl. 56.1 Stmt. ¶ 89; CLICNY 73.) Taking into account the restrictions identified in Alfano's October 2004 PAA, as well as the information in his disability questionnaires and job description, Jenkins concluded that Alfano was capable of performing nine sedentary occupations. (Id.)

On December 1, 2004, Mark Sodders, a CIGNA case manager, requested a formal TSA so that he could ask Dr. Roach to review the DOT job descriptions of any occupations Alfano was deemed capable of performing. (P. 56.1 Stmt. ¶ 91; D. Suppl. 56.1 Stmt. ¶ 91; CLICNY 957.) The requested TSA was conducted by Holly Jule, another VRC. (P. 56.1 Stmt. ¶ 92; D. Suppl. 56.1 Stmt. ¶ 92; CLICNY 944-953.) She reviewed the TSA performed by Jenkins, and, in a December 13, 2004, report, noted that one of the four occupations her own TSA identified was Alfano's occupation as a wage and salary administrator. (Id.; CLICNY 69.) She also noted that all four occupations permitted Alfano to get up, move about, change positions, and alternate sitting, standing and walking, as needed. (Id.)

On January 20, 2005, CIGNA sent the four identified occupations to Dr. Roach for his review and comment. (P. 56.1 Stmt. ¶ 93; D. Suppl. 56.1 Stmt. ¶ 93; CLICNY 886-903.) On April 11, 2005, Sodders advised Alfano that unless Dr. Roach responded to that letter by April 28, 2005, Alfano would have to attend a Functional Capacity Evaluation ("FCE"). (P. 56.1 Stmt. ¶ 94; D. Suppl. 56.1 Stmt. ¶ 94; CLICNY 885.) On April 19, 2005, Dr. Roach opined that Alfano was incapable of performing any of the four occupations identified by the TSA because he could not sit for prolonged periods of time without the ...


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