The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiff Janet Solnin commenced the present action under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et. seq. ("ERISA") to recover benefits allegedly due under an employee benefit plan. Previously, defendants Sun Life and Health Insurance Company ("Sun Life"), Genworth Life and Health Insurance Company ("Genworth"), GE Group Life Assurance Company ("GE Group Life"), and Phoenix Life Insurance Company ("Phoenix Life") moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. By Memorandum & Order dated January 31, 2011 (the "Order"), defendants' motion was denied. However, as further explained below, the Court gave defendants the opportunity to provide supplemental briefing on one limited issue. Having reviewed the parties' supplemental briefs, and for the reasons set forth below, the Court concludes that the tolling provision contained in the current version of the applicable ERISA regulations does not apply to plaintiff's claim. The Court further finds that a de novo standard of review applies.
The material facts are set forth at length in the Order and are repeated herein only to the extent they are relevant to the issues in the parties' supplemental briefs.
Plaintiff's Injury and Approval for Long Term Disability Benefits
Plaintiff was employed as an Assistant Manager by non-party Reliance
Federal Savings Bank ("Reliance"). On November 18, 1998, Plaintiff
suffered a back injury at work. On February 13, 1999, plaintiff filed
a Notice of Claim for disability benefits under the
disability insurance policy provided by Reliance (the "Policy").*fn1
Plaintiff's claim for long term disability benefits was
approved, and she began receiving such benefits as of August 4, 1999.
The Policy is an employee welfare benefit plan governed by ERISA. By letter dated March 28, 2002, GE Group Life advised plaintiff that the definition of "Total Disability" applicable to her claim had changed. Plaintiff was further notified that additional medical information was required from her and that additional benefits could not be considered until the requested information was received and reviewed. Plaintiff submitted additional medical information to GE Group Life, which included reports prepared by her treating physician and physical therapist.
GE Group Life then referred plaintiff's claim to one of its outside medical doctor-consultants, Thomas Hicks, M.D., for a determination regarding plaintiff's restrictions and limitations. On April 5, 2002, Dr. Hicks issued a report finding that plaintiff was capable of performing sedentary work with certain restrictions and limitations.
On May 9, 2002, GE Group Life asked Dr. Hicks to review new information obtained since his prior review, which essentially consisted of recent video surveillance footage of plaintiff. On May 9, 2002, Dr. Hicks issued a report opining that plaintiff was capable of performing "sedentary-light work." (Order at 7.)
GE Group Life's Denial of Long-Term Benefits
By letter dated May 10, 2002, GE Group Life advised plaintiff that it had determined that she was able to perform "sedentary to light work" and was therefore not eligible for long-term disability benefits beyond August 4, 2001. Plaintiff formally appealed the denial of continued long-term disability benefits, but her appeal was denied.
On September 24, 2002, plaintiff initiated a separate action before this Court, docket number 03 CV 4857 (the "Prior Action"). Her Complaint asserted a breach of contract and an ERISA claim, and sought a declaratory judgment that plaintiff was totally disabled within the meaning of the Policy. With respect to plaintiff's ERISA claim, the Court found that "GE Group Life's denial of long-term benefits was arbitrary and capricious" because the evidence on which it relied -- the video surveillance and Dr. Hicks' reports -- did not "constitute substantial evidence to support the conclusion that Plaintiff can perform sedentary work." (Order at 8.) Additionally, the Court found that "the record here shows a complete absence of consideration of Plaintiff's vocational circumstances," a review of which is required by the Second Circuit. (Id. at 10 (citing Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208, 213-15 (2d Cir. 2006).)
Accordingly, the Court denied the defendants' motion with respect to plaintiff's ERISA claims and remanded the matter to GE Group Life for further proceedings consistent with its opinion and with the following directive:
Under Demirovic, GE Group Life must consider both whether Plaintiff is physically capable of obtaining employment from which she may earn a reasonably substantial income and whether she is vocationally qualified to obtain such employment. See Demirovic, 467 F.3d at 215. While GE Group Life need not employ a particular method to make this determination, its conclusion must satisfy a reviewing court that consideration of the claimant's circumstances was not arbitrary and capricious. Id. In addition, although the Court's review was confined to the administrative record, upon ...