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Susan A. Young v. Hartford Life and Accident Insurance Company

September 23, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Susan A. Young ("Young") brings this suit pursuant to Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), alleging that her long-term disability ("LTD") benefits were improperly terminated by defendant the Hartford Life and Accident Insurance Company ("Hartford"). Young was employed as an attorney by Milbank, Tweed, Hadley & McCloy, LLP ("Milbank") when she suffered an unusual injury to her neck. Her neck injury later required several operations and rendered her unable to work for substantial periods of time. When Young did return to work, she worked part-time. After several years, Hartford determined that Young's condition had improved to the point that she could return to work full-time. When Hartford terminated Young's benefits, she argued that migraine headaches continued to render her disabled. Young administratively appealed her termination of benefits, and Hartford upheld its determination upon appeal. Young then brought the instant suit. On February 11, 2011, Young moved and Hartford cross-moved for summary judgment. Hartford also moves to strike one of Young's exhibits. For the reasons below, the Court denies Young's motion for summary judgment and grants Hartford's cross-motion. Hartford's motion to strike is also granted.


Young began work as an attorney for Milbank on October 2, 1995. (Mendez Decl., Ex. B (hereinafter "Record"), 0994.) Young enrolled in a disability benefits plan with Continental Casualty Company, and this plan was later taken on by Hartford on November 30, 2003. (Defs.' Mem. 2.) On August 18, 2004, Young filed a claims form indicating that she had injured herself at some time during May 2004 at home while brushing her teeth. (Record, 0994.) As a result of this unusual, but debilitating injury, Young was unable to sit for prolonged periods. (Id., 0995.) She could no longer report to work as of August 17, 2004. (Id., 0757.) On September 16, 2004, Hartford approved Young's request for short-term disability ("STD") benefits through October 1, 2004.

That fall, Young sought treatment from Dr. Michael Mizhiritsky. On October 11, 2004, Dr. Mizhiritsky placed the following restrictions on Young's activities: "Restrictions: No sitting >20 min intervals. No lifting, pulling, pushing, carrying >10 lbs. No overhead reaching." On October 29, 2004, Sheree Feigelson, Milbank's benefits analyst, completed a Physical Demands Analysis ("PDA") of Young's position. She determined that Young's position required her to work an average of twelve hours per day, five days per week with weekends as needed. (Record, 1055.) She was required to stand for half hour intervals and sit for eight-plus hours at one time with alternate sitting and standing as needed. (Id.) Over the course of an entire day, she was required to stand for a total of two hours, walk for a total of one hour, and sit for at least eight hours. (Id.) She was required to lift documents that usually weighed between three and five pounds, but up to ten pounds. (Id., 1056) And her job required "twisting of head," "upper extremity ROM [range of motion]," and "whole body ROM" between 66-100% of her day. (Id.)

Eventually, Young exhausted her STD benefits and began to use her long-term disability ("LTD") benefits.*fn1 On February 14, 2005, Young underwent a posterior cervical laminectomy, a type of spinal surgery. (Record, 0198.) For this procedure, she chose a doctor, Dr. Barry Moore, based in Pennsylvania located approximately 3.5 hours from her home in New York. (Id., 0186.) She chose this doctor despite his distance from her home because he was a family friend who had treated her father and because she was having difficulty getting a diagnosis in New York. (Id.) Young was approved for LTD benefits while recovering from this surgery. (Id., 0198)

Following her surgery, Young was not cleared by her doctor to return to work for approximately one year. On January 31, 2006, she reported to Hartford that she lived in a multilevel apartment with a bedroom upstairs, walked or took public transportation in order to get out of the house, and had walked fifteen blocks to physical therapy regularly until she completed her course of treatment with physical therapy. (Id., 0178.) She was also able to cook "light meals," work at her computer some, and go shopping at the grocery store for small items. (Id.)

On February 13, 2006, Dr. Moore released Young to return to work part-time on February 20, 2006, subject to several restrictions. (Id., 0168.) These restrictions were as follows:

[N]o overhead lifting or reaching, and no bending or crouching; no lifting, carrying, pushing, pulling of more than 3 pounds; ability to change position every 20 minutes; ability to sit/stand/walk or perform computer work no longer than 20 minutes at a time; discontinue any activity upon occurrence of numbness or tingling in the arms and legs until the problem subsides; change position or recline in a resting position at lest [sic] every 2 hours.

(Id.) In addition, Dr. Moore recommended that certain changes be made to Young's work area, including that she receive a desk chair with cervical/head support, a wireless headset, equipment to change the position of her computer keyboard, voice recognition software and a Dictaphone. (Id., 0739.) He also recommended that Young's work area be modified so that she could both stand and sit while working and that she be allowed to take breaks to change positions at least every two hours. (Id.) In order to accommodate Young's needs, Hartford commissioned an ergonomic assessment to improve her workspace. (Id., 0157.) Young returned to work part-time on February 21, 2006, working twenty-one hours per week. (Id., 0162.)

On April 14, 2006, Young stopped working in anticipation of another surgery. (Id., 0138.) On April 28, 2006, Young had an anterior cervical discetomy performed by Dr. Roger Ostdahl, a doctor affiliated with Dr. Moore. (Id., 0132, 0576) Young was initially scheduled to return to work part-time on August 24, 2006 (id., 0127), but on the day she was supposed to return to work, Young reported that she had tripped and stumbled on the sidewalk and would be unable to return to work as scheduled (id., 0126.) By letter dated September 18, 2006, Dr. Ostdahl released Young to return to work with the same restrictions as before. (Id., 0125.) Young returned to work on September 28, 2006. (Id.)

Despite some set-backs in her physical therapy due to minor accidents or near accidents, Young continued to work part-time for the remainder of 2006 and throughout 2007. On September 18, 2007, Hartford received an updated medical report from Dr. Ostdahl regarding Young's condition. Dr. Ostdahl noted that Young was showing signs of improvement, specifically that "recent lateral cervical spine x-ray demonstrates a stable situation with evidence of progressive fusion maturation at C5-6 and C6-7." (Id., 0099.) The doctor recommended that she continue in physical therapy and work part-time. (Id.)

On November 8, 2007, Young had another milestone conversation with Hartford. She revealed that she was still in pain. (Id., 0096.) She stated that although she could cook with light cookware, she was unable to cook with heavy pans. (Id.) She also stated that she had had to learn to eat and write with her left hand because she found using her right hand painful. (Id., 0096-97.) She also reported that she had begun seeing a Dr. Emile Hiesiger for pain management. (Id., 0096.) Dr. Hiesiger's notes on December 28, 2007 indicate that Young "continues to improve," but that she still reports pain and is receiving steroid injections. (Id., 0086.) On February 21, 2008, Young reported to Hartford that she had begun to undergo radio frequency treatments and steroid injections. (Id., 0090.)

Young's treatment continued into 2008. On February 27, 2008, Dr. Hiesiger issued a report indicating that Young was able to sit for periods of two hours at a time for a total of twelve hours a day, stand or walk for two hours at a time for a total of four hours a day, and occasionally lift things up to twenty pounds. (Id., 0088.) Her condition was described as "permanent." (Id.) The report also stated that Young would be able to make reaching motions above the shoulder, at waist level and below the waist only occasionally. (Id., 0432.) Despite having received a report indicating that she could sit twelve hours a day (with breaks), Hartford continued to pay Young LTD benefits.

On April 4, 2008, Young learned that her employment would be terminated with Milbank effective August 29, 2008. (Compl., ¶ 48.) Shortly after on April 7, 2008, Young began to suffer headaches following her third radiofrequency lesioning procedure. (Id., 0380; 0077.) She informed her doctor on May 9, 2008 that she suffered severe headaches of varying intensity and disabling effect twice per week and milder headaches three times per week. (Id.) On May 7, 2008, she informed Hartford that she was suffering headaches approximately 2-3 times per week. (Id., 0083.) On July 11, 2008, Dr. Hiesiger notes that Young had no headaches since taking inderal. However, on July 29, 2008, Young left a voicemail message for Hartford indicating that she had been out of town for several days visiting her sick grandmother. (Id., 0080.) She stayed longer than expected because she was suffering from severe headaches. (Id.) She also stated that she was consulting with her doctor regarding her migraine headaches, which she was getting 3-4 times per week. (Id.) She had been experiencing improvement with the medication that her doctor had prescribed, but the benefits had abated recently. (Id.)

On August 11, 2008, Hartford received another attending physician statement ("APS") from Dr. Hiesiger. (Id., 0077.) This APS stated that Young's condition required that she work under the same restrictions as before, that is she was able to sit for two hours at a time for a total of twelve hours per day, she was able to walk for up to two hours at a time for a total of four hours, and occasionally able to lift up to twenty pounds. (Id., 0078.) No mention of Young's migraines was made in the APS although he noted that she was taking inderal, a well known migraine headache medication. Upon review of the update, the administrator, Joseph Ross ("Ross"), assigned to Young's case requested that a nurse review her file to determine whether Young continued to be disabled. (Id.) Barbara Phelps ("Phelps") reviewed her file and concluded on August 18, 2008 that Young's condition did not seem to be disabling at present. (Id., 0077.) Phelps recommended termination of Young's LTD benefits. (Id., 0075.) That next day, Hartford received an email from the benefits analyst at Milbank Tweed informing them, apparently for the first time, that Young would be laid off at the end of the month. (Id., 0076.)

On August 27, 2008, Hartford informed Young that it would be terminating her LTD as of August 29, 2008. In explaining its decision, Hartford cited the recommendation of Dr. Hiesiger regarding how much sitting, standing, etc. Young could tolerate and concluded that Young could perform her duties as an attorney even with these restrictions. (Id., 0355.) In addition, it noted that information submitted by Dr. Hiesiger "shows that you have had no . . . headaches [since] inderal and that your neck is doing well." (Id.) This appears to be a reference to Dr. Hiesiger's office visit notes of July 11, 2008 and the APS he completed on August 9, 2008.

On October 9, 2008, Young sent Hartford a letter appealing the termination of her benefits. (Id., 0337-38.) In the letter, Young did not dispute that her neck pain no longer presented significant barriers to returning to work, but rather argued that her migraines were disabling. (Id.) She attached a letter from Dr. Hiesiger that contained a more detailed description of her current condition. (Id., 0339-40.) Dr. Hiesiger confirmed that Young's neck pain was "significantly better." However, he noted that she developed "severe, intractable migraines" in April 2008, continuing to date. Dr. Hiesiger stated that Young's "headaches occur up to three times a week and at least one of them is disabling." (Id., 0339.) He further detailed, "Essentially they are common migraines in terms of their pattern and description, however [sic] the distribution of the headache which tends to be in the cervico occipital midline up to the vertex, is atypical of migrainous headache." (Id., 0340.) Dr. Hiesiger characterized the headaches as a side effect of the radiofrequency lesioning treatment on her neck. (Id.) In addition, Dr. Hiesiger attached notes regarding the nature of Young's migraines from a doctor's visit on August 8, 2008 and notes from five telephone calls, the first of which was dated August 29, 2008. (Id., 0341-47.) The letter stated that Young was to see Dr. Alex Mauskopf, a headache specialist, in the near future. Young did so, but she never provided her medical records pertaining to her visits to Hartford (other than in an April 2009 letter). (Defs.' Mem. 13.)

Juan Mendez ("Mendez"), the appeals specialist assigned to Young's case, requested an independent peer review of Young's case file. (Record, 0071.) Dr. Leonid Topper, a board certified neurologist licensed to practice medicine in New York and New Jersey, reviewed Young's case. (Id., 0318-22.) Dr. Topper reviewed Young's file and spoke with Dr. Hiesiger, who relayed the contents of his conversations with Dr. Mauskop. (Id.) Dr. Topper also reviewed Dr. Hiesiger's handwritten treatment notes, but noted that they were "hardly [sic] to read." (Id., 0320.) After reviewing Young's file, Dr. Topper concluded that Young was capable of "light level of work duty on a full-time basis," referring to a Department of Labor work category. (Id.) He noted that her neck problems no longer prevented her from sitting for continuous periods. (Id.) He also stated, "The headache doesn't fit into any known category of primary or secondary headaches, after extensive evaluations done by Dr. Hiesiger and Dr. Mauskop. Therefore, the headache is essentially self-reported, and a link to prior cervical spine surgeries is not established." (Id., 0321-22.)

On December 18, 2008, Mendez sent Young a detailed letter indicating that he was upholding the determination that Young was no longer disabled. (Id., 0210-14.) He explained that Dr. Topper had concluded after speaking with Dr. Hiesiger and reviewing his recommendations that Young's neck and spine issues no longer prevented her from working as an attorney. (Id., 0213.) He also reviewed the evidence proffered by Young in support of her contention that her migraines were disabling. He summarized the contents of Dr. Hiesiger's October 6, 2008 letter and the medical records appended thereto. (Id., 0211.) He also summarized Dr. Topper's findings, emphasizing that Dr. Topper ...

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