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Michelle M. Donohoe v. Hartford Life Insurance Company

March 18, 2011

MICHELLE M. DONOHOE, PLAINTIFF,
v.
HARTFORD LIFE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff brings this action under the Employee Retirement and Income Security Act of 1974 ("ERISA") §502(a)(1)(B); 29 U.S.C. §1132(a)(1)(B), to recover unpaid long term disability benefits under an employee benefit plan and to declare her right to future benefits. Defendant moves (Dkt. No. 12) for summary judgment on the ground that it properly terminated plaintiff's benefits. Plaintiff moves (Dkt. No. 18) for summary judgment. As set forth below, the Court grants defendant's motion, denies plaintiff's motion, and dismisses the action.

AMENDED COMPLAINT

In her amended complaint (Dkt. No. 8), plaintiff claims as follows. While employed by the Golub Corporation as a customer service manager, plaintiff obtained long term disability insurance coverage under the company's employee welfare benefit plan ("Plan"). The benefits under the Plan are funded by a group policy issued by defendant, which acts as both claims administrator and fiduciary. The Plan defines disability as follows:

Definition of Disability

Disability or Disabled means that during the Elimination period and for the next 24 months you are prevented by:

1. Accidental Bodily Injury; *** From performing one or more of the Essential Duties of Your Occupation and as a result your Current Monthly Earning are no more than 80% of your Indexed Pre-disability Earnings. After that, you must be so prevented from performing one or more of the Essential Duties of Any Occupation.

On November 12, 2002 defendant determined that plaintiff was totally disabled within the meaning of the Plan and granted her long term disability benefits. Thereafter, defendant paid benefits to plaintiff as a result of conditions including severe back pain, surgical fusion of L3-L4 and L4-L5, second surgical fusion of L3-L4, neck pain, radicular pain in legs, myocardial infarction, periodic chest pain, and hypertension. Defendant discontinued the benefits on July 31, 2008. Plaintiff filed an administrative appeal, which defendant denied on May 28, 2009. Plaintiff has exhausted all administrative remedies.

Plaintiff states that beginning on November 12, 2002, she has been totally disabled within the meaning of the Plan, has not worked, and has had no earnings. She claims that defendant's determination that she is not totally disabled within the meaning of the Plan is contrary to the terms of the Plan, contrary to the medical evidence, unreasonable, and an abuse of discretion.

Plaintiff seeks a monetary award in the amount of unpaid past benefits as well as a determination "[c]larifying and declaring that the Plan is obligated to pay plaintiff long term disability benefits in the future as required by the Plan." She also seeks attorneys fees and costs.

THE ADMINISTRATIVE DECISION

On November 29, 2007, Claim Specialist Jeanne M. Stowell began defendant's annual review of plaintiff's continued eligibility. On July 31, 2008, Stowell wrote to plaintiff advising:

"We have completed our review of your claim for continued benefits and have determined that you no longer meet the definition of Disabled." Stowell noted that, as of May 13, 2005, the applicable definition of disabled under the policy "changed from own occupation to any occupation." She then summarized the records in plaintiff's claim file, as follows.

An attending physician's statement completed by Celesta Hunsiker, MD, dated July 2, 2007, provided a diagnosis of degenerative disc disease of the lumbar spine. Dr. Hunsiker reported symptoms of back pain with radiation

and exam findings of chronic back pain and limited range of motion. Dr. Hunsiker noted that you are treated approximately every six months. Dr. Hunsiker provided the following restrictions and limitations: No prolonged standing, walking limited distances only, no lifting/carrying, limited overhead work, no pushing/pulling, may drive, and may sit provided you are able to stand and walk frequently as needed for pain.

During your November 29, 2007 telephone interview, you informed that you remain totally disabled due to low back pain with radiculopathy. You informed that you experience numbness on the side portion of your left lower

extremity and significant pain in the entire left lower extremity. You also informed that you suffer from hypertension which is currently controlled with medications and you are status post a myocardial infarction in February 2005 with no current complaints. You reported that you are capable of driving with no restrictions, capable of sitting in a wood straight back chair for approximately fifteen minutes at a time, driving/riding in a car for approximately twenty-five minutes at a time, capable of sitting in a recliner for a couple of hours at a time, capable of standing/walking for approximately ten minutes at a time with no assistive devices, walking up/down stairs with no restrictions, lifting/carrying up to ten pounds, and performing activities requiring full use of your hands (ie. writing/typing) with no restrictions. You also reported that you obtain approximately two and a half to three hours of relief following the use of Neurontin. You further reported that you treat with Dr. Hunsiker for yearly physicals and as needed for any other medical conditions; you were no longer treating with Dr. Buckley and did not anticipate any future treatment unless surgical intervention was needed; and, you were no longer treating with Dr. Catania and did not anticipate any future treatment.

Medical records received from Slocum-Dickson Medical Center, PLLC, the office of Celesta Hunsiker, MD, document that you are undergoing treatment for coronary artery disease status post a myocardial infarction, hypertension, hyperlipidemia, migraine headaches, degenerative disc disease of the cervical

and lumbar spine status post a lumbar fusion in February 2003, lumbar decompression in April 2003, and revision of a lumbar decompression in June 2005, and chronic pain. Your January 19, 2006 musculoskeletal exam documents normal gait and station, no deformity, no tenderness, no pain, full range of motion, and no tender points to suggest fibromyalgia.

Medical records received from Slocum-Dickson Medical Center, PLLC, the office of Rudolph Buckley, MD, document that you were underwent treatment for low back pain with left sided radiculopathy. Your April 24, 2006 x-ray of the lumbar spine revealed scoliosis, degenerative joint disease, and osteopenia. Your April 24, 2006 office note documents full range of motion

of the right lower extremity and no tenderness to palpation, except mild right greater trochanteric pain. Your November 2, 2006 office note documents that you have been working and notes that you have been waiting for removal of hardware.

Medical records received from New York Pain Management, the office of Joseph Catania, MD, document that you underwent treatment for lumbar, bilateral hip, and bilateral tower extremity pain. Your April 12, 2006 office note documents exam findings of an antalgic gait, lumbar paraspinous tenderness, 30 degrees of flexion, 10 degrees of extension with lateral rotation, normal hip flexion and extension, negative flip, no swelling, tenderness, crepitation or discoloration of the bilateral lower extremities, full, smooth range of motion without limitations, peroneal eversion, plantar Hexion and extension are equal and symmetric bilaterally, normal sensation to touch, pleasant mood and affect, and intact judgment. Your April 12, 2006 office note documents that you are independently active for thirty minutes per day. Your July 12, 2006 office note documents exam findings of a normal gait, lumbar vertebral tenderness, no swelling, tenderness, crepitation or discoloration of the bilateral lower extremities, full, smooth range of motion without limitations, negative bilateral flip tests, plantar flexion and extension are equal and symmetric, mood and affect are pleasant and appropriate, intact judgment, and normal insight without delusions or hallucinations. Your November 13, 2006 office note documents exam findings of normal gait/station, slight paraspinous tenderness, left greater than right, no SI joint tenderness, no swelling, tenderness, crepitation or discoloration of the bilateral lower extremities, and peroneal eversion, plantar flexion and extension, and knee flexion and extension are equal and symmetric. Your March 12, 2007 office note documents exam findings of an antalgic gait with a noted limp on the left, paraspinous tenderness bilaterally, tenderness of the left lower extremity, decreased range of motion of the left lower extremity, observable atrophy of the left lower extremity, and normal sensation to touch. Your August 6, 2007 office note documents exam findings of normal gait/station, lumbar paraspinous tenderness, 10 degrees of flexion, extension,

and lateral rotation, normal hip flexion and extension, no swelling, tenderness, crepitation, or discoloration of the bilateral lower extremities, smooth, full range of motion of the bilateral lower extremities, and plantar flexion and extension are equal and symmetric bilaterally.

Throughout your claim file, as well as in your June 18, 2008 interview, you relayed that you were prevented from returning to any occupation due back and leg pain. You also relayed that things like standing, walking, and sitting intensify the pain. You further relayed that you cannot stand for any length of time and can sit for maybe an hour. During this interview, you were asked to describe the symptoms and medical conditions that prevent you from

returning to work in any occupation. Your responses were transcribed by Investigator Lombardo and put into statements, which you were given the opportunity to review, correct, and sign. Your statements are quoted here in part. Investigator Lombardo's observations are also noted here in part.

You described your maximal level of functionality/activity as: walking a maximum of ten minutes with a slow gait and a limp, standing for a maximum of fifteen minutes, shopping for a maximum of ten to fifteen minutes, lifting/carrying a maximum of ten pounds, bending or flexing forward to touch your knees, squatting to sit in a chair, but not to the floor, kneeling on

your right knee only, pushing/pulling something that offers moderate resistance, reaching overhead, to the front, to the sides, and below the waist, walking up/down stairs with no problem, performing activities that require full use of your hands and fingers, driving for a maximum of thirty minutes, and sitting for a maximum of twenty minutes. You also reported that you could probably twist at the waist, but noted that this is not comfortable for you to do. You further reported that you are able to twist or turn your head to the left or right but noted that this is limited due to a previous cervical fusion. You also noted that you arc able to concentrate without difficulty or restriction. Investigator Lombardo noted that during your interview, you walked and moved throughout your home without any noticeable limitations. Investigator Lombardo reported that your movements appeared to be fluid and smooth which was consistent with what was viewed during the activity check. Investigator Lombardo also reported that you did not need any assistance to walk or move around your home and you did not display any type of pain indicators. Investigator Lombardo also noted that you got up and down from a seated to standing position approximately three times during the entire interview process and stood for approximately two to three minutes at a time with no apparent balance issues. Investigator Lombardo further noted that you remained seated on a straight back chair throughout the majority of the one hour and forty minute interview. Investigator Lombardo reported that you did not appear to suffer from stiffness or increased pain and appeared to be comfortable as you sat as you did not shift in your seat, display facial expression or make noises consistent with being in pain.

During your May 21, 2008 telephone conversation with Investigator Lombardo, you informed that your only current treating provider is Dr. Hunsiker. During your June 18, 2008 interview, you indicated that during your typical day, you get up around 5:30 am, shower, get dressed and get ready, read the paper, and do things around the house. You indicated that in the event you have to go to the store, you do it first thing in the morning, and if you are making something for dinner, you try to get it done in the morning. You indicated that in the afternoon, you read and occasionally your granddaughter comes over. You indicated that in the evening you watch TV, and you typically go to bed around 10:00 pm and fall asleep around 11:00 pm. As you know, we performed surveillance as a part of our investigation. We identified you as the person on surveillance as a part of the interview you participated in on June 18, 2008. In the surveillance, you demonstrated that you are capable of carrying items with both hands, bending slightly at the waist, placing items into your trunk, holding a pot with both hands and placing it into your trunk, driving five minutes to a private residence, conversing on your cell phone with your left hand while holding a car seat with your right hand for approximately two minutes, squatting toward the group and bending at the waist toward the ground while utilizing both hands to construct a snowman (packing snow together with both hands, rolling the ball of snow on the ground with both hands, packing snow onto the ball with both hands, retrieving handfuls of snow with both hands) for approximately ten minutes, bending at the waist to retrieve a stick, breaking the stick into pieces with both hands, pushing snow off of the stairway with both feet while ascending the stairway, driving to a local grocery store, pushing a shopping cart through the aisles with both hands for approximately twelve minutes, traveling to a local gas station, sitting and dining at a restaurant attached to a train station for approximately forty-five minutes, retrieving a beverage with both hands, consuming food with both hands, retrieving your plate with both hands, holding your plate with your right hand and handing the plate to the person you were dining with prior to placing it onto the table, holding your purse with your right hand, a bag with your left hand, and an item with your left hand while walking through the train parking lot.

During your June 18, 2008 interview, we showed you the surveillance. After viewing the video, you identified yourself as the person in the surveillance and in contradiction to the first statement obtained at the time of your interview, you stated that the documented activities accurately depict your current level of functionality.

The functionality depicted in surveillance appears to be in direct contradiction to both your description of your reduced abilities and your physician's description of your reduced functionality. Based on these contradictions, we sent a letter to Celesta Hunsiker, MD, to clarify your current functional limitations. Dr. Hunsiker submitted a reply, dated July 15, 2008, indicating that you are ...


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