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Susan Amy Schlenger v. Fidelity Employer Services Company

March 31, 2011

SUSAN AMY SCHLENGER, PLAINTIFF,
v.
FIDELITY EMPLOYER SERVICES COMPANY, LLC, IBM CORPORATION, AND
METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANTS.



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

DECISION AND ORDER

Before the Court are several motions. First, Defendant Metropolitan Life Insurance Company ("MetLife") moves for summary judgment dismissing the First, Second, Third, and Fourth Causes of Action in Plaintiff Susan Schlenger's Amended Complaint, (Doc. 12), the only causes of action that pertain to MetLife, and for summary judgment on MetLife's Counterclaim. (Doc. 42.)

Second, Defendant Fidelity Employer Services Company ("Fidelity") moves for summary judgment dismissing the Second and Fourth Causes of Action in Plaintiff's Amended Complaint, the only causes of action that pertain to Fidelity, and for an award of its attorneys' fees and costs. (Doc. 47.)

Third, Defendant International Business Machines Corporation ("IBM") moves to dismiss the Fifth and Sixth Causes of Action in Plaintiff's Amended Complaint, the only causes of action that pertain to it, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and failure to plead with particularity pursuant to Federal Rule of Civil Procedure 9(b). (Doc. 32.)

Plaintiff Susan Amy Schlenger opposes all three motions, (Docs. 36, 52, 55), and cross-moves for summary judgment on her claims against MetLife, and for an award of her attorney's fees and costs. (Doc. 58).

For the reasons stated herein, MetLife's Motion for Summary Judgment is GRANTED, Plaintiff's Cross-Motion for Summary Judgment on her claims against MetLife is DENIED; Plaintiff's motion for an award of attorney's fees and costs is DENIED; Fidelity's Motion for Summary Judgment is GRANTED; Fidelity's motion for an award of attorney's fees and costs is DENIED; and IBM's Motion to Dismiss is GRANTED, but Plaintiff has leave to amend as to her claims against IBM only.

I.BACKGROUND

For purposes of deciding IBM's Motion, I assume the facts (but not the conclusions) as alleged in the Amended Complaint to be true, and for purposes of deciding MetLife's and Fidelity's Motions for Summary Judgment, as well as Plaintiff's Cross-Motion for Summary Judgment, the following facts are undisputed, except where noted. While I will only briefly summarize the facts, I have read and considered all of the allegations in the Amended Complaint, and for purposes of the summary judgment motions, the materials provided in connection with those motions, and I assume the parties' familiarity with them.

Plaintiff is an attorney who previously resided and practiced in Massachusetts. (Am. Compl. ¶¶ 30, 31.) She was recruited by representatives of IBM starting in October 2003 to work in its Business and Government Relations Division as a Senior Contracts Professional at its facility in Yorktown, New York.*fn1 (Id. at ¶ 32.) Plaintiff alleges that during the recruitment process, IBM representatives represented to her that if she worked for IBM, she would receive "variable pay constituting an average 10% of her base salary annually," plus a "robust relocation package that would allow her to relocate her family from Massachusetts to New York to a home suitable to her needs." (Id. at ¶ 33.) Plaintiff claims that based on these representations she decided to accept IBM's offer, (id. at ¶ 34), and relocate her family to New York, (id. at ¶ 35), but ran into difficulties with the relocation allegedly because of IBM's failure to provide her with the "promised relocation plan," inasmuch as the allegedly revised package she received "had no provision for an equity advance to provide a down payment on a new house," (id. at ¶¶ 35--36). As a result of this delay and revision, Plaintiff states that by the time the corrected plan was issued in April 2004, she had expended approximately $15,000 for temporary housing, (id. at ¶ 37), lost the opportunity to bid on a suitable house for her family, (id. at ¶ 35), and was ultimately compelled to bid on a "more expensive house that failed to meet many of her criteria and that was located 20 miles further away from work," (id. at ¶ 38).

Plaintiff states that she complained of her frustrations with the relocation process to her then-manager, Ronald Rinner, who had also been her "hiring manager," and his director, Joyce Koontz, who had "dined Ms. Schlenger during the recruiting process and confirmed the commitments made by Mr. Rinner." (Id. at ¶ 40.) Plaintiff contends that she continued to have significant out-of-pocket expenses related to selling her prior residence (a farm) because the agent provided by IBM was inexperienced selling farm properties, and that by the time of her relocation from the temporary apartment in which she had been residing around late July or early August 2004, Ms. Schlenger had spent nearly $30,000 in rent and associated costs for the apartment, and was "forced to spend an additional $15,000 on out-of-pocket transportation and travel expenses, child care expenses, and substitute labor," an amount in excess of the $11,000 lump sum relocation package that IBM had given her. (Id. at ¶ 43.)

In the meantime, Plaintiff had started working at IBM on December 1, 2003, as a Senior Contracts Professional in the Contracts and Negotiations Division. (Id. at ¶ 44.) Plaintiff maintains that during her time at IBM she "possessed a stellar work record and . . . had received exceptionally good performance ratings," but despite this never received the 10% variable pay promised to her during the hiring process or any other compensation increases whatsoever. (Id. at ¶ 46.)

Plaintiff's medical problems began around May 30, 2005, when she alleges that she began to suffer "excruciating and intractable back pain." (Id. at ¶ 48.) She was admitted to the hospital on or about May 31, 2005*fn2 and treated with pain medication. (Id.; ML 56.1 ¶ 8; Pl.'s 56.1 (ML) ¶ 8; Hallford Decl. Ex. B at SCH 652.)*fn3 Plaintiff advised the doctors at Vassar Brothers Hospital of various past injuries, including neck and residual spinal problems from a car accident in 1969, and injuries from falling from a horse in and around 1995. (ML 56.1 ¶¶ 9--10; Pl.'s 56.1 (ML) ¶¶ 9--10.) Plaintiff had a history of back complaints, and a prior history of depression. (SCH 652--55; ML 56.1 ¶¶ 12--13; Pl.'s 56.1 (ML) ¶¶ 12--13.)

After this first hospitalization she requested and was denied a more flexible work schedule. (Am. Compl. ¶ 49.) Plaintiff was hospitalized a second time in November 2005, at which time she was diagnosed with progressive Facet disease ("a disorder of certain joints associated with the spine"). (Id. at ¶ 51.) Plaintiff also has been diagnosed with progressive cervical stenosis, chronic intractable back pain, related right shoulder weakness and pain, a Tarlov cyst (a fluid-filled sac in spinal canal), and coccydynia (pain of the tailbone). (Id. at ¶¶ 51, 52.) At that time, "with management's approval and endorsement," Plaintiff began to work from home, an option apparently available to any employee regardless of health. (Id. at ¶¶ 53, 54.) Plaintiff alleges that she continued her work from her home, taking frequent, intermittent rest when needed in light of her condition and her medications. (Id. at ¶¶ 55, 60.) Plaintiff contends that she maintained fifty-plus hour work weeks during this period and "was able to perform at a level similarly productive to her pre-June 2005 levels," but "was unable to successfully maintain a course of prescribed medication or treatment to address her pain levels due to IBM's continued refusal to allow her genuine flex hours." (Id. at ¶¶ 58, 60.)

In 2005 and 2006, Plaintiff submitted Medical Treatment Reports ("MTR's") to IBM. Plaintiff's first MTR was submitted by Daniel Richman, M.D. (ML 56.1 ¶¶ 14--16; Pl.'s 56.1 (ML) ¶¶ 14--16; SCH 723.) The remainder of Plaintiff's MTRs were submitted by Ricardo Cruciani, M.D., Ph.D. (ML 56.1 ¶ 17; Pl.'s 56.1 (ML) ¶ 17; SCH 722, 724--29.) Dr. Cruciani diagnosed plaintiff with degenerative disc disease ("DDD"), Facet's disease, cervical stenosis and spondylosis.*fn4 (ML 56.1 ¶ 18; Pl.'s 56.1 (ML) ¶ 18.)

Plaintiff was hospitalized for a third time in mid-March 2006 for further diagnosis and treatment, and upon discharge continued to work from home. (Am. Compl. ¶¶ 61, 62.) In August 2006, Dr. Cruciani requested that IBM provide a proof-reader to assist plaintiff in reviewing her work for typographical errors. (ML 56.1 ¶ 24; Pl.'s 56.1 (ML) ¶ 24.) Plaintiff alleges that beginning around mid-May 2006, her supervisor, Gary Lipson, commenced a "six month harassment campaign" that involved "an unusual and uncustomary review process out of yearly order and out of synch with IBM's procedural precedent." (Am. Compl. ¶¶ 63, 64.)

According to Plaintiff, the culmination of this alleged campaign was "an arbitrary determination" by Lipson that Plaintiff "was too acutely 'ill' to work given her symptoms related to global spinal disorders and other conditions." (Id. at ¶ 63.) Plaintiff maintains that as a result she was effectively dismissed on November 14, 2006, and did not return to work after that date. (Id. at ¶¶ 63, 67.) Specifically, Plaintiff claims that she was "forced out" of her job in November 2006, and that her supervisor claimed that Plaintiff had "performance problems" and felt that she would "not get better." (ML 56.1 ¶¶ 26--27; Pl.'s 56.1 (ML) ¶¶ 26--27, 30.) According to MetLife, Plaintiff stopped working due to an alleged physical disability caused by Facet's disease and cervical stenosis. (ML 56.1 ¶ 30; Pl.'s 56.1 (ML) ¶ 30.)

In response to Lipson's decision (and perhaps to the off-cycle review, although the Amended Complaint does not specify), Plaintiff appealed to IBM's Human Resources Department, which undertook an internal investigation to determine whether his actions were discriminatory. (Am. Compl. ¶ 64.) According to Plaintiff, the investigation characterized Lipson's conduct as "merely being 'isolated incidents' of discrimination without a pattern thereto," although Plaintiff argues that Lipson's decision was "unjustified in light of Ms. Schlenger's stellar work record, above-par performance ratings throughout her tenure, and performance of upwards of fifty-plus hours per week." (Id. at ¶¶ 65, 66; see ML's 56.1 ¶ 28 (Plaintiff's performance reports indicate that Plaintiff was "strong overall" through end of December 2005).) Plaintiff also alleges that IBM's Human Resources Department was "complacent [sic] in Mr. Lipson's conduct." (Am. Compl. ¶ 67.) After her dismissal, Plaintiff claims that she was placed on "long-term disability or 'active, unpaid' employee status until [IBM] made efforts to terminate her based upon her inability to obtain medical clearance . . . ." (Id. ¶ 68.)

IBM offers its employees various employee benefits plans, including medical and dental insurance, group life insurance, and both short-term disability ("STD") and long-term disability ("LTD") insurance (collectively, the "IBM Plans"), all of which are governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). (Fid. 56.1 ¶ 1;*fn5 Pl.'s 56.1 (Fid) ¶ 1.*fn6 ) IBM's LTD Plan identifies the "Manager of U.S. Benefits Services, IBM Human Resources" as the "Plan Administrator," and lists the address of the Plan Administrator as "Office of the Plan Administrator, IBM Employee Services Center, 5411 Page Road, Durham, NC 27703."

(Hallford Decl. Ex. A at SCH 077; ML 56.1 ¶ 6.) MetLife issued to IBM a group policy of insurance to fund benefits payable under the LTD Plan, and "was granted full discretionary authority to administer claims for benefits under the Plan, including the authority to make all benefit determinations under the plan." (ML 56.1 ¶ 5; Pl.'s 56.1 (ML) ¶ 5; Hallford Decl. Ex. A at SCH 023--24.) IBM's health care and life insurance plans are sponsored and maintained by IBM, and name a committee of IBM executives as the "Plan Administrator." (Fid. 56.1 ¶¶ 2--3; Pl.'s 56.1 (Fid) ¶¶ 2--3.) Pursuant to a Human Resources Services Agreement, dated June 27, 2002, which was amended and restated by an Administrative Service Agreement, dated August 1, 2007, "certain human resource and employee service operations and functions" related to the IBM Plans were "performed and managed" by Fidelity. (Fid. 56.1 ¶ 10; Pl.'s 56.1 (Fid) ¶ 10; Dickstein Decl.*fn7 Ex. 4 at 1, Ex. 5.) For instance, Fidelity (i) made available phone representatives, known as the IBM Employee Service Center ("ESC"), which IBM Plan participants could contact for help with "enrollment, general benefits information and questions," and (ii) provided access to a website, www.netbenefits.com, which allows IBM Plan participants to obtain Plan information and perform transactions related to their coverage under the IBM Plans. (Fid. 56.1 ¶¶ 11--12; Pl.'s 56.1 (Fid) ¶¶ 11--12.)

As a result of her employment with IBM, Plaintiff was eligible for and enrolled in the IBM LTD Plan. (ML 56.1 ¶ 4; Pl.'s 56.1 (ML) ¶ 4.) According to Plaintiff, she made a claim for STD benefits following November 2006. (Am. Compl. ¶ 69.) Plaintiff's STD application was approved, and Plaintiff received STD benefits through March 13, 2007. (ML 56.1 ¶ 32; Pl.'s 56.1 (ML) ¶ 32.) After exhaustion of the STD benefits, Plaintiff was eligible to apply for LTD benefits if she remained "disabled." IBM's LTD plan states that:

"[D]isabled" means that during the first 12 months after you complete the elimination period, you cannot perform the important duties of your regular occupation with IBM because of a sickness or injury. After expiration of that 12 month period, disabled means that because of sickness or injury, you cannot perform the important duties of any other gainful occupation for which you are reasonably fit by your education, training and experience. (Hallford Decl. Ex. A at 014--15; ML 56.1 ¶ 36; Pl.'s 56.1 (ML) ¶ 36.)*fn8

On December 21, 2006, Plaintiff applied for LTD benefits. (ML 56.1 ¶ 39; Pl.'s 56.1 (ML) ¶ 39.) On the claim form, Plaintiff stated that she was unable to perform the important duties of her job on a regular basis due to "[f]requent hospitalizations," that "absences due to pain interrupt[ed] [her] job detrimentally," and that "[u]nique stress exacerbated [her] condition." (SCH 936.) Plaintiff's LTD application also indicated that she was unable to perform the duties of "some other job" on a regular basis, and that "[a]ny job [she] was able to take would need to be home based and flexible in terms of frequent absences," and that "stress/personal conflict would need to be minimal." (Id.) Plaintiff listed eight physicians who had treated her since the beginning of her disability. (SCH 937.) Plaintiff did not submit records to MetLife from three of the doctors. (ML 56.1 ¶¶ 90--93; Pl.'s 56.1 (ML) ¶¶ 90--93.) Also in connection with her LTD application, Plaintiff submitted a "Reimbursement Agreement for Social Security," (ML 56.1 ¶¶ 42--43; Pl.'s 56.1 (ML) ¶¶ 42--43), and IBM provided a "Statement of Employer," dated January 3, 2007, which listed 0% as Plaintiff's occupation's requirements for sitting, standing and walking. (ML 56.1 ¶¶ 44--45; Pl.'s 56.1 (ML) ¶¶ 44--45; SCH 913.) Plaintiff disputes the accuracy of the "Statement of Employer" form. (Pl.'s 56.1 (ML) ¶ 45.) In 2008, IBM indicated that Plaintiff's job requirements were such that she "sits for about 90% of the day and walks/stands less than 5% of an 8hr day" and that she "was not required to travel." (ML 56.1 ¶ 206; Pl.'s 56.1 (ML) ¶¶ 45, 206.)

In January 2007, Dr. Cruciani submitted an Attending Physician Statement ("APS"), which listed the following diagnoses for plaintiff's condition: progressive Facet's disease, degenerative disc disease, right rotator cuff, and possible cervical stenosis. (ML 56.1 ¶¶ 46--47; Pl.'s 56.1 (ML) ¶¶ 46--47; SCH 900, 902--04.) The APS listed Plaintiff's subjective complaints as "(i) acute pain; (ii) lack of stamina; (iii) inability to stand for substantial periods; and (iv) right-side uncoordinated, typing, drop things, etc." (ML 56.1 ¶ 48; Pl.'s 56.1 (ML) ¶ 48.) Dr. Cruciani indicated that Plaintiff was totally disabled for her own occupation, he could not determine if she was totally disabled for "any occupation," and he did not think she would be able to resume work activities. (SCH 903.)

According to MetLife, Plaintiff's application for LTD benefits was assigned to a MetLife Case Management Specialist, Linda Potter, who requested a clinical consultant review, which was performed by MetLife nurse consultant, Lisa Fletcher RN. (ML 56.1 ¶¶ 94--96.) By letter dated March 5, 2007, MetLife advised Plaintiff that her LTD benefits application had been approved effective March 14, 2007, and notified Plaintiff that after twelve months, the definition of "disability" changes from an "own occupation" to an "any occupation" test. (Id. ¶ 99; Pl.'s 56.1 (ML) ¶ 99; SCH 526--29.) The letter further advised Plaintiff that MetLife "w[ould] be requesting updated medical statements periodically to certify continued disability as defined in [the LTD] plan." (SCH 528.) The letter also explained that a 24-month limitation applied because Plaintiff's claimed disability fell within the LTD Plan's "soft tissue" limitation, and that these benefits would be exhausted on March 13, 2009. (Id.; ML 56.1 ¶ 100; Pl.'s 56.1 (ML) ¶ 100.)

By letter dated June 27, 2007, MetLife advised plaintiff that IBM had removed the soft-tissue limitation from the LTD Plan and that her benefits were no longer subject to the 24-month limitation, but instead would continue "for as long as [she] continue[d] to satisfy the definition of disability and all other requirements of the plan." (SCH 540; ML 56.1 ¶101; Pl.'s 56.1 (ML) ¶101.)

By letter dated July 19, 2007, MetLife requested information regarding a review of Plaintiff's claim for continuing LTD benefits. (SCH 542.) Specially, MetLife requested that Plaintiff provide MetLife with "current office notes from all treating physicians from last 3 office visits, including current exam findings," "treatment plan (including medications)," "diagnostic test results/lab reports," and "completion of provided Attending Physicians Statement." (Id.) By letter dated July 20, 2007, MetLife requested additional information and indicated that the "information will be requested in connection with the 'any occupation' investigation currently being conducted on your claim." (SCH 543.)

MetLife contends that, as part of this continuing review, Ms. Potter forwarded all medical information received to date to a MetLife nurse consultant, Darsel Excell RN, who reviewed the medical information and noted that there was no diagnostic testing to support the claimed restrictions and limitations. (ML 56.1 ¶¶ 109--10.) MetLife's claim log reflects that Nurse Excell attempted to contact Plaintiff on at least three occasions. (SCH 101.) Nurse Excell drafted a letter dated October 8, 2007 to Dr. Cruciani requesting additional information and enclosing a Work Restrictions and Limitations form. (SCH 860--63; ML 56.1 ¶¶ 110--11; Pl.'s 56.1 (ML) ¶ 111.) The instructions requested, among other things, that Dr. Cruciani "address [several issues] and provide work restrictions and limitations." (SCH 860.) The form was sent to Dr. Cruciani on November 8, 2007, and Dr. Cruciani returned it on November 14, 2007.

(SCH 097, 101; ML 56.1 ¶¶ 111--12; Pl.'s 56.1 (ML) ¶¶ 111--12.) Dr. Cruciani listed Plaintiff's "primary disabling diagnosis" as "cervical stenosis" and "other back symptoms," Plaintiff's "secondary diagnosis" as Facet disease and lumbago, and Plaintiff's "co-morbid conditions" as "depression/DJD." (SCH 857.) Under the heading "RESULTS OF ANY DIAGNOSTIC TESTING (we do not have any diag testing on file for patient) (EMG, NCS, MRI, CT or X RAYS) and dates performed," Dr. Cruciani left the response space blank. (SCH 857.) Below the space provided to answer this question, but before the next question, Dr. Cruciani wrote "to be determined at appt. on 11/27/07." (SCH 857.) Dr. Cruciani checked "No" in response to Question 2, which asked "Is the patient able to RTW [return to work] with or without restrictions?" (SCH 859.) Dr. Cruciani left blank the space provided for answering Question 4, which instructed: "If you DO NOT feel the patient is able to return to work, EVEN WITH RESTRICTIONS then please provide current OBJECTIVE medical findings, treatment plan, functional impairments." (SCH 859 (emphasis in original).)

According to MetLife, on November 20, 2007, Nurse Excell referred all of the medical records received to date for review by an independent physician consultant ("IPC"). (ML 56.1 ¶ 114.) Lawrence Rubens, M.D., board certified in orthopedic surgery, reviewed and summarized the medical records received, as well as other documents that were part of the claim file. (Id. ¶ 116; SCH 640--41.) According to Dr. Rubens' report, the "only clinical documentation available for [his] review consist[ed] of 4 clinic notes from . . . Dr. Cruciani." (SCH 641.) The report also discusses two additional "disability" forms that Dr. Cruciani filled out, and states that Plaintiff "had seen at least five other physicians but their medical records [we]re not available." (SCH 642.) According to Dr. Rubens, "MRI's ha[d] been done but no reports were available," although Dr. Cruciani's submissions, which were reviewed by Dr. Rubens, discussed the MRI findings. (SCH 642.) Dr. Rubens spoke with Dr. Cruciani by telephone. (SCH 641.) Dr. Rubens's report also lists a variety of other documentation (totaling 112 pages) that he reviewed. (SCH 640--41.)

Dr. Rubens concluded that "[t]here [wa]s inadequate documentation of positive object [sic] physical findings to support a functional limitation from [Plaintiff's] normal sedentary duties on a physical basis," and that "[t]he impairments and medical are not severe enough to cause functional limitations preventing the employee from performing her sedentary job." (SCH 643.) Dr. Rubens also found that "[t]he restrictions and limitations provided by Dr. Cruciani are not consistent with the medical findings," and that "the restrictions and limitations appear to be a response to [Plaintiff's] self reported complaints without the support of positive objective physical findings of a significant nature to preclude the duties of her own occupation." (Id.) With regard to whether Plaintiff was receiving appropriate treatment, he stated that "[j]ust giving opioids alone, without some type of cognitive intervention, is not an ideal treatment." (Id.) Because his training is as an orthopedic surgeon, Dr. Rubens declined to assess Plaintiff's psychiatric limitations. (Id.)

On December 3, 2007, Nurse Excell faxed Dr. Rubens's report to Dr. Cruciani for comment, and Dr. Cruciani sent a response, dated December 5, 2007, wherein he stated his objections to the report, but did not include any additional medical records. (SCH 645--46; ML 56.1 ¶¶ 121--26; Pl.'s 56.1 (ML) ¶¶ 121--26.) On December 17, 2007, Ms. Potter faxed Dr. Cruciani's response to Dr. Rubens, (ML 56.1 ¶ 129; Pl.'s 56.1 (ML) ¶ 129), and on December 21, 2007, Dr. Rubens provided an addendum report, which found that no new objective evidence of impairments was presented and that his opinion that plaintiff was physically able to perform her sedentary job remained unchanged, (ML 56.1 ¶¶ 130--31; Pl.'s 56.1 (ML) ¶¶ 130--31; SCH 839). Dr. Rubens did amend his statement from "just giving opioids" to "just treating with medications." (SCH 839.)

On December 28, 2007, the addendum report was sent to Dr. Cruciani for comment, and he submitted a response dated January 2, 2008. (SCH 647--48; ML 56.1 ¶¶ 132--33; Pl.'s 56.1 (ML) ¶¶ 132--33.) Dr. Cruciani's response was forwarded to Dr. Rubens, who after review, continued to adhere to his prior determination in an addendum report dated January 14, 2008. (SCH 649; ML 56.1 ¶¶ 135--36; Pl.'s 56.1 (ML) ¶¶ 135--36.)

Plaintiff's claim also was referred to MetLife's Special Investigation Unit ("SIU"), which performed requested surveillance of Plaintiff's home. (ML 56.1 ¶¶ 137--38; Pl.'s 56.1 (ML) ¶¶ 137--38.) The surveillance results were unremarkable. (SCH 598--601; ML 56.1 ¶ 139; Pl.'s 56.1 (ML) ¶ 139.) The investigator also performed internet research, which indicated that Plaintiff was breeding and showing dogs as late as May 28, 2007. (ML 56.1 ¶ 140; SCH 595.) Plaintiff disputes this finding, and states that she "had not shown a dog since 2003 or bred a dog since 2004." (Pl.'s 56.1 (ML) ¶ 140; but see SCH 657 (Dr. O'Leary's July 20, 2005 exam notes: "She breeds dogs"); SCH 082 (January 2007 MetLife claim log entry: "EE [employee, i.e., Plaintiff] and husband also raised show dogs but now just has [sic] 2 dogs for breeding purposes"); SCH 500 (July 21, 2008 Appeal letter from Plaintiff's counsel attaching the surveillance report, noting that it was improper for Dr. Rubens to ignore the findings in the surveillance report, and that "the investigator's report supports Ms. Schlenger's disability claim."); SCH 665 (Dr. Hansraj's September 28, 2005 exam notes: "For recreation the patient reports gardening, breeding dogs.").)

According to MetLife, on January 23, 2008, Potter reviewed all of the information in Plaintiff's file, and concluded that Plaintiff did not meet the definition of disability under the terms of IBM's LTD Plan. (ML 56.1 ¶ 141.) Potter forwarded her recommendation to terminate Plaintiff's LTD benefits to MetLife Unit Manager, Christine Parent, who agreed with Potter's recommendation. (ML 56.1 ¶¶ 141--43; Pl.'s 56.1 (ML) ¶¶ 141--43.)

On January 28, 2008, MetLife informed Plaintiff that she no longer qualified to receive payments under IBM's LTD Plan. (SCH 813; ML 56.1 ¶¶ 145--46; Pl.'s 56.1 (ML) ¶¶ 145--46.) The January 24, 2008 denial letter stated that "no current exam findings or rationale was provided that would indicate a severity of an impairment that would prevent you from performing the essential duties of your own job as a Senior Contract Professional as well as any occupation according to your education, training and experience." (SCH 814.) The letter further explained that if Plaintiff appealed the decision, MetLife "suggest[ed] that [she] provide clinical documentation that includes: physical exam findings, abnormal diagnostic testing results and current restrictions/limitations that documents an impairment in functional abilities that would prevent you from performing the essential duties of your own job." (SCH 814.)

Meanwhile, the Social Security Administration ("SSA") had approved, on August 12, 2007, Plaintiff's claim for Social Security Disability Income ("SSDI") benefits in the amount of $1,812.00 per month from August 2007. (ML 56.1 ¶ 102; Pl.'s 56.1 (ML) ¶ 102.) The SSA also approved a retroactive lump sum award of $5,436.00 for May, June and July 2007. (ML 56.1 ¶ 103; Pl.'s 56.1 (ML) ¶ 103.) The Notice of Award did not include any rationale or explanation for the SSA's decision. (ML 56.1 ¶ 104; Pl.'s 56.1 (ML) ¶ 104.) MetLife sent Plaintiff a letter dated September 5, 2007, identifying $7,109.38 due to MetLife under the LTD Plan as a result of overpayments of LTD Plan benefits caused by the SSA's retroactive award of SSDI benefits. (ML 56.1 ¶ 105; Pl.'s 56.1 (ML) ¶ 105.) The letter set forth MetLife's calculation of the amount of overpayment owed by Plaintiff. (SCH 177--78.) Plaintiff submits that she objected to the calculation. (Pl.'s 56.1 (ML) ¶ 107. But see id. ¶ 220; ML 56.1 ¶ 220.)

In February 2008, Plaintiff contacted IBM about "employment" and requested that she be put back on STD. (SCH 115; ML 56.1 ¶¶ 14849; Pl.'s 56.1 ¶¶ 148--49.) IBM informed Plaintiff that that would not be possible, and advised Plaintiff of the documentation that she should provide for her appeal. (SCH 115.) Later that year, Plaintiff (through her husband and attorney) requested reconsideration of MetLife's decision, without going through the formal appeals process. (E.g., SCH 116--18; ML 56.1 ¶¶ 150--60; Pl.'s 56.1 (ML) ¶¶ 150--60.) Plaintiff formally appealed MetLife's decision by letter dated July 21, 2008. (SCH 491.) The letter raised various issues, including, but not limited to the following: (i) MetLife relied on an improper definition of Plaintiff's job requirements; (ii) Dr. Cruciani's opinion was not fully considered; (iii) MetLife ignored the SSA's determination that Plaintiff was disabled; (iv) Dr. Rubens' report was flawed because he was not qualified to consider Plaintiff's cognitive impairments, he reviewed non-medical information, and he never examined or saw Plaintiff; and (vii) the initial review failed to consider the results of the surveillance. (SCH 491--502.) Plaintiff's attorney also requested "copies of all documents (including the Plan document), records and other information relevant to Ms. Schlenger's claim . . . ." (SCH 501.)

MetLife assigned the appeal to MetLife Appeals Specialist, Shelly D'Amico. (ML 56.1 ¶ 167.) As part of the appeal, D'Amico sent Plaintiff's records to two independent physicians, Peter Sugerman, M.D., board certified in adult psychiatry, and Dr. Arousiak Varpetian, M.D., board certified in internal medicine and neurology. (ML's 56.1 ¶¶ 168--69; 173--74.) Dr. Sugerman determined that the "file does not provide any current evidence of a significant psychiatric condition beyond 2/23/08 that would be . . . causing impairment," nor does the file "detail why [] current psychiatric symptoms would prevent the employee from performing work tasks." (SCH 273--74.) Dr. Varpetian concluded that "[e]xtensive medical records show that [Plaintiff] has complained of pain without any corresponding objective findings," that the "neurological examination has been inconsistent throughout the time that she was followed by multiple clinicians," and that "[t]here [we]re no objective tests other than the imaging study," but the "results of the imaging studies do not consistently correlate with the complaints or the objective findings." (SCH 279.) Dr. Varpetian spoke to Dr. Cruciani. In his report, Dr. Varpetian said that Dr. Cruciani "agreed that [Plaintiff's] symptoms were only subjective" and that "there was no atrophy or weakness over many years of radicular complaints." (SCH 276.)

Dr. Sugerman's and Dr. Varpetian's reports were provided to Drs. Cruciani and Hansraj, as well as Plaintiff's attorney. (SCH 191--93; ML 56.1 ¶¶ 183--84; Pl.'s 56.1 (ML) ¶¶ 183--84.) By letter dated August 20, 2008, Dr. Cruciani responded to the reports. (SCH 212--15; ML 56.1 ¶ 188; Pl.'s (ML) ¶ 188.) MetLife contends that it never heard from Dr. Hansraj. (ML 56.1 ¶ 176.) By letter dated August 22, 2008, Plaintiff's attorney voiced objections to the independent physician reports, (SCH 192--93), requested certain documents, and requested an accounting of the alleged overpayment. (SCH 191--93.) By letter dated September 8, 2008, Plaintiff's attorney complained that Plaintiff had not received all of the plan documents, nor an accounting for overpayments of LTD benefits. (SCH 185; ML 56.1 ¶ 198; Pl.'s 56.1 (ML) ¶ 198.) By letter dated September 11, 2008, D'Amico advised Plaintiff's attorney of the procedure for requesting LTD Plan documents and provided the attorney with another copy of MetLife's September 7, 2007 letter showing the overpayment. (SCH 128, 175--76; ML 56.1 ¶ 199; Pl.'s 56.1 (ML) ¶ 199.)

After receiving Dr. Cruciani's August 20, 2008 letter, Dr. Varpetian noted by supplemental report dated September 22, 2008 that Dr. Cruciani's letter provided "no new information." (SCH 160--61.) On October 17, 2008, MetLife requested clarification from IBM of Plaintiff's job description, and IBM responded on November 3, 2008 by stating that Plaintiff "sits for about 90% of the day and walks/stands less than 5% of an 8hr day [and that she] was not required to travel." (SCH 132; ML 56.1 ¶¶ 203, 206; Pl.'s 56.1 (ML) ¶¶ 203, 206.) By letter dated November 3, 2008, MetLife advised Plaintiff's attorney that MetLife had determined to uphold its original decision following review on appeal. (SCH 147--51.) The letter also advised that Plaintiff had exhausted the Plan's administrative appeals and that she had the right to commence an action for benefits under ERISA Section 502(a). (SCH 151.) Further, the letter stated that:

The IBM Employee Services Center (ESC) has been advised of the termination of your client's LTD benefits. It is IMPORTANT that she immediately contact the ESC . . . regarding her status, since her IBM medical benefits are affected by this change. . . . If she does not contact the ESC within 30 days from the date of this letter, IBM will consider her to have voluntarily resigned, and all benefits will cease. (SCH 151 (emphasis in original).)

On December 16, 2008, Plaintiff's employment with IBM ended, although Plaintiff does not say how. (Am. Compl. ¶¶ 63, 67--68, 147; Fid. 56.1 ¶ 30; Pl.'s 56.1 (Fid) ¶ 30.) Plaintiff continued receiving health insurance coverage under the IBM Plans until December 31, 2008. According to Plaintiff, MetLife's denial of her LTD benefits claim "had the effect of ...


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