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Strope v. Unum Provident Corp.

March 23, 2010

JEAN STROPE, PLAINTIFF,
v.
UNUM PROVIDENT CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

INTRODUCTION

This is an action, brought pursuant to § 1132(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132, in which plaintiff seeks benefits under the Short Term Disability ("STD") Plan of her former employer, defendant HSBC Bank USA. Benefits payable in accordance with the plan are insured under a group insurance policy issued to HSBC by defendant First Unum Life Insurance Company. This case is before the court on defendant's motion for summary judgment (Item 9) and plaintiff's cross motion for the same relief (Item 37).

BACKGROUND and FACTS

Plaintiff was employed by HSBC Bank as a Senior Vice President. In April 2005, she saw her doctor for complaints of extreme fatigue. Dr. Danuta Derkatz advised plaintiff to stay off work until her next appointment in May 2005. On April 5, 2005, plaintiff applied for benefits under the STD Plan. A plan participant is eligible for benefits under the STD Plan for a maximum of 26 weeks if the participant is "continuously disabled" through the policy's elimination period. "Disabled" is defined as "limited from performing the material and substantial duties of your regular occupation" due to sickness or injury combined with "a 20% or more loss in weekly earnings" due to the same sickness or injury (AR 410).*fn1

On April 5, 2005, defendant sent a letter to plaintiff's physician asking her to complete an enclosed Attending Physician's Statement (AR 218). On April 15, 2005, defendant sent a letter to Dr. Derkatz requesting copies of all medical records from April 1, 2005 to the present (AR 222). In response, defendant received an office note dated April 1, 2005, which indicated the visit was a follow-up for Epstein-Barr Virus and that plaintiff felt "terrible; very, very tired." Additionally, Dr. Derkatz wished to rule out sleep apnea and advised plaintiff to stay off work from April 5 until May 6, 2005 (AR 241).

In a letter dated April 22, 2005, defendant advised plaintiff that the information received from Dr. Derkatz was insufficient. Specifically, defendant requested "[a] list from your physician indicating the activities you cannot and should not do along with an explanation of the medical reasoning supporting these restrictions and limitations." (AR 244). Additionally, defendant sent a letter to Dr. Derkatz requesting additional medical records from January 1, 2005 (AR 253).

On April 28, 2005, defendant received additional medical records and the completed Attending Physician's Statement. In it, Dr. Derkatz stated that plaintiff suffered from fatigue, tested positive for the Epstein-Barr Virus, and "can only perform simple tasks as she can tolerate." She was expected to be able to return to work on May 6, 2005 (AR 265).

On May 5, 2005, plaintiff's file was reviewed by two nurse-consultants. At that time, it was determined that the medical records did not support the restrictions and limitations set forth (AR 268-69). In a letter dated May 5, 2005, defendant advised plaintiff that the medical information was insufficient to consider benefits and again asked her for a list of "activities you cannot and should not do along with an explanation of the medical reasoning supporting these restrictions and limitations." (AR 272). On May 13, 2005, defendant sent Dr. Derkatz an Estimated Functional Abilities Form and asked that she complete it and provide any additional medical records from April 2 until May 13, 2005 (AR 288).

In a letter dated June 1, 2005, defendant advised plaintiff that her "disability is not supported by medical documentation" and her claim had been denied (AR 306). Defendant stated that "it [was] unclear as to why [plaintiff] could not work as of April 1, 2005" (AR 306). Defendant advised plaintiff that she could provide additional medical documentation, including sleep apnea records, for further review within 180 days of the letter. Id. On June 6, 2005, Dr. Derkatz sent a letter to defendant stating that plaintiff was under her care for "Ebstein [sic] Barr Virus (Chronic Fatigue Syndrome), Depression, Hypothyroid, borderline sleep apnea and possible Lupus Erythematosis." (AR 318). She stated that plaintiff's symptoms included "profound fatigue, joint pain of her knees, hips, feet, hands and upper back with tenderness to palpation" and that these symptoms were "currently debilitating and preclude[d] her from any type of work." Id. Dr. Derkatz stated that plaintiff "cannot concentrate, has difficulty ambulating and must rest frequently throughout the day." Id.

Following a clinical review by a nurse-consultant on June 13, 2005, defendant again found that the documentation did not support the restrictions and limitations of no work "which appear to be overly restrictive as [plaintiff] noted to have multiple diagnoses with multiple complaints." (AR 321). Additionally, the nurse-consultant stated there was "no apparent documentation in the medical records which would appear to reflect an impairment in physical or cognitive functioning capabilities." Id.

In a letter dated June 20, 2005, defendant advised plaintiff that her claim was again denied. Although her symptoms were noted, defendant concluded that plaintiff did "not have clinically supported restrictions and limitations that would preclude [her] from performing the material and substantial duties of [her] occupation based on the medical information provided to us." (AR 328).

Plaintiff then requested an administrative appeal of the decision. In response to a letter dated July 11, 2005, Dr. Derkatz provided additional records including a January 12, 2005 lab report, an April 2005 report of plaintiff's sleep apnea study, a June 2005 report from a rheumatologist, and additional office notes through July 15, 2005. The January 2005 lab report indicated that plaintiff tested positive for two of three antibodies associated with the Epstein-Barr Virus. It is noted on the lab report that "ninety percent of most adult populations will be positive for [these two antibodies] due to previous infection or exposure" (AR 359). In the sleep apnea report, Dr. Edward Ventresca found that plaintiff's overnight polysomnography was "consistent with mild degree of obstructive sleep apnea." (AR 365). Dr. Prem Tambar, a rheumatologist, examined plaintiff in May 20, 2005 and was able to indirectly rule out "any specific significant inflammatory rheumatic disease." (AR 367). Dr. Tambar stated that he suspected plaintiff's symptoms were "soft tissue rheumatic in origin" and "it is a mater of semantics whether one calls this fibromyalgia or symptoms secondary to underlying depression." Id. Following a June 2005 appointment, Dr. Tambar advised that a bone density test indicated osteopenia and that plaintiff suffered from bilateral carpal tunnel syndrome (AR 366).

Plaintiff's claim was reviewed by a nurse-consultant on August 5, 2005. At that time, defendant found that the available clinical data did not support Dr. Derkatz's conclusion that plaintiff could not work or her recommendation that plaintiff only perform simple tasks as tolerated (AR 393). Although Dr. Derkatz found that plaintiff could not concentrate, had difficulty ambulating, and must rest frequently, the medical consultant stated that the records did not contain the results of any testing to substantiate any cognitive difficulties, nor was there any mention in the office notes of difficulty in ambulation. Id. Additionally, defendant stated that the medical records indicated a previous Epstein-Barr infection rather than an acute infection, no evidence of lupus, normal thyroid function, and only mild sleep apnea. The medical consultant also determined that plaintiff's symptoms did not meet the criteria for Chronic Fatigue Syndrome ("CFS") established by the Centers for Disease Control ("CDC"). Id. In a letter dated August 11, 2005, defendant advised plaintiff that her appeal had been denied. Defendant noted her past Epstein Barr virus exposure, negative lupus testing, and mild sleep apnea, and stated that the medical records received "were insufficient to support a loss of function or provide restrictions or limitations that would prevent the performance of your occupation." (AR 468). Additionally, defendant noted the absence of "evidence of cognitive testing to determine if such difficulties are substantiated." (AR 469).

Plaintiff had also applied for long-term disability benefits under the New York Disability Benefits Law. HSBC insured its obligation to pay long-term benefits through a separate policy issued by defendant. Plaintiff's long-term benefits claims was initially denied by defendant. However, following a hearing, the Worker's ...


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