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Rozek v. New York Blood Center

United States District Court, E.D. New York

February 21, 2013

Susan ROZEK, Plaintiff,
NEW YORK BLOOD CENTER and New York Blood Center in its capacity as Plan Administrator of New York Blood Center, and First Unum Life Insurance Company, Defendants.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Law Offices of Wayne J. Schaefer, LLC, by Wayne J. Schaefer, Esq., Of Counsel, Smithtown, NY, for Plaintiff.

Begos Horgan & Brown, LLP, by Patrick W. Begos, Esq., Daniel Green, Esq., of Counsel, for Defendants.


SPATT, District Judge.

The Plaintiff Susan Rozek (" the Plaintiff" ) brings this action under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. ยง 1001 et seq., against the Defendants New York Blood Center (" NYBC" ), NYBC in its capacity as Plan Administrator of NYBC, and First Unum Life Insurance Company (" First Unum," and collectively, " the Defendants" ). She alleges that she was wrongfully denied long-term disability benefits by First Unum under the terms of the NYBC Plan (" the Plan" ), which was an employee welfare benefits plan funded by the Plaintiff's former employer, NYBC. The Plaintiff also seeks a claim to recover Retirement Income Protection (" RIP" ) benefits allegedly due under the terms of the Plan.

Presently before the Court are the parties motions for summary judgment, as well as the Defendants' in limine motion to preclude the introduction at trial of any evidence other than the contents of the administrative record. For the reasons set forth below, the Court grants summary judgment in favor of the Defendants with respect to all of the Plaintiff's claims. Further, in light of the Court's summary judgment decision, the Court deems the Defendants' in limine motion to be moot.


On October 2, 1989, the Plaintiff began working for the NYBC in the position of a Blood Donor Specialist, also known as a phlebotomist. During her tenure at NYBC, she was a participant in the Plan. During this period, the Plan was insured by First Unum, and First Unum administered all claims for benefits under the Plan.

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A. The Plan

Under the terms of the Plan, a plan participant is initially considered disabled— and thus, eligible for long-term disability benefits— when (1) " [she] [is] limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury" ; (2) " [she] [has] a 20% or more loss in [her] indexed monthly earning dues to the same sickness or injury" ; and (3) " during the elimination period, [she] [is] unable to perform any of the material and substantial duties of [her] regular occupation." (Administrative Record (" AR" ) 119.) The elimination period is defined as " a period of continuous disability which must be satisfied before [a plan participant] [is] eligible to receive benefits from [First] Unum." (AR 139.) It is set at 180 days. (AR 119.)

" After 24 months of payment," a plan participant is considered disabled— and thus, remains eligible for long-term disability benefits— when " due to the same sickness or injury, [she] [is] unable to perform the duties of any gainful occupation for which [she] [is] reasonably fitted by education, training or experience." (AR 119.) The Plan defines gainful occupation as " an occupation that is or can be expected to provide [a plan participant] with an income at least equal to 60% of [her] indexed monthly earnings within 12 months of [her] return to work." (AR 139.)

Under the Plan, First Unum will cease sending a plan participant long-term disability benefits on the earlier of the following:

— During the first 24 months of payments, when [the plan participant] [is] able to work in [her] regular occupation on a part-time basis but [ ] choose[s] not to;
— After 24 months of payments, when [the plan participant] [is] able to work in any gainful occupation on a part-time basis but [ ] choose[s] not to[; ]
— The end of the maximum period of payment;
— The date [a plan participant] [is] no longer disabled under the terms of the plan[; ]
— The date [the plan participant] fail[s] to submit proof of continuing disability;
— The date [the plan participant's] disability earnings exceed[s] the amount allowable under the plan
— The date [the plan participant] dies.

(AR 124.)

The Plan also includes a provision for RIP benefits. Under this provision, First Unum agrees to " pay [a plan participant's] Employer an extra benefit to be deposited into the plan on [her] behalf" if the plan participant was (1) " receiving disability payments" and (2) " had been a participant in the pension plan for at least 3 months prior to [her] disability[.]" (AR 129.)

The Plan grants First Unum complete discretion and authority to interpret the terms of the Plan and to determine a participant's eligibility for benefits. In this regard, the Plan states that " [w]hen making a benefit determination under the policy, [First] Unum has discretionary authority to determine [a plan participant's] eligibility for benefits and to interpret the terms and provisions of the policy." (AR 115.) According to the Plan,

[i]n exercising its discretionary powers under the Plan, the Plan Administrator and any designee (which shall include [First] Unum as a claims fiduciary) will have the broadest discretion permissible under ERISA and any other applicable laws, and its decisions will constitute final review of [a plan participant's] claim by the Plan. Benefits under this

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Plan will be paid only if the Plan Administrator or its designee (including [First] Unum), decides in its discretion that the applicant is entitled to them.

(AR 138.)

As part of her motion for summary judgment, the Plaintiff included excerpts from " The Benefits Center Claims Manual" (" the Claims Manual" ), which First Unum allegedly uses when making long-term disability benefits determinations. (Pl. Br., pg. 10-11; Schaefer Decl., Exs. A and B.) According to the Claims Manual,

Benefits Specialists should give significant weight to an award of Social Security Disability benefits as supporting a finding of disability unless there is compelling evidence that the Social Security Award was:
1. based on error of law or abuse of discretion;
2. inconsistent with applicable medical evidence; or
3. inconsistent with the definition of disability contained in the applicable contract.

(Schaeffer Decl., Exh. A.) " Inconsistent applicable medical evidence" is defined as " evidence of illness/injury, limitations, or restrictions that differs to such a degree from that considered by the [Social Security Administration (" the SSA" ) ], that there likely would be no finding of disability if the SSA did consider it." (Schaeffer Decl., Exh. B.) For example, " an independent evaluation after the [social security disability insurance] award was made ... clearly establish[ing] that the claimant has no current [restrictions and limitations] that would prevent the individual from working" would constitute inconsistent applicable medical evidence. (Schaeffer Decl., Exh. B.)

B. The Plaintiff's Medical History

On December 21, 2005, the Plaintiff, then 52 years old, sustained injuries when she fell at a mobile blood drive while working. (AR 54.) This was the last day she worked before her alleged disability. (AR 54.) The Plaintiff's first symptoms included back pain, hip pain, right ankle pain, knee pain and leg pain. (AR 54.)

Prior to her fall on December 21, 2005, on November 23, 2005, the Plaintiff visited her orthopedist, Dr. Richard A. Rogaschefsky, M.D. (" Dr. Rogaschefsky" ). (AR 488.) At this appointment, the Plaintiff complained of right hip pain. (AR 488.) Dr. Rogaschefsky diagnosed that the Plaintiff had " [r]ight hip greater trochanter bursitis" and directed the Plaintiff to " begin physical therapy, stretching exercises for the IT band, [and] anti-inflammatories as needed." (AR 488.) He also directed the Plaintiff to follow-up with him in four weeks. (AR 488.)

On December 22, 2005, the day after her fall, the Plaintiff saw Dr. Rogaschefsky and complained of " back/flank pain," as well as " right knee and ankle pain." (AR 489.) Dr. Rogaschefsky diagnosed the Plaintiff with " [l]umbosacral spine strain, rib contusion, right knee contusion [and] right ankle sprain." (AR 489.)

On January 23, 2006, the Plaintiff received an MRI of the lumbosacral spine. (AR 57.) The MRI showed a " small central disc herniation [at the L4-5 level] effac[ing] the ventral aspect of the thecal sac." (AR 57.) In addition, the MRI indicated that there was " mild anterior listhesis of L5 on S1 with pseudo disc bulging and mild bilateral neural foraminal stenosis." (AR 58.) The Plaintiff also underwent an MRI of her right hip on February 14, 2006. (AR 59.) The MRI revealed " [p]ossible minute right hip effusion." (AR 59.) However, there was " [n]o evidence

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or labral tear or other focal pathology." (AR 59.)

From January 25, 2006 until March 29, 2006, the Plaintiff attended physical therapy sessions at Advanced S.P.O.R.T.S. (AR 945.) She received 21 physical therapy treatments in total. (AR 945.) In a progress report dated March 29, 2006, the Plaintiff's physical therapist noted that the Plaintiff's response to treatment had been " fair," but that the Plaintiff " continue[d] to complain of low back pain" and had difficulty with activities of daily living. (AR 945.) The physical therapist concluded that the Plaintiff " ha[d] made little progress [with] physical therapy." (AR 945.)

On April 19, 2006, the Plaintiff was evaluated by Dr. Salvatore Palumbo, M.D. (" Dr. Palumbo" ), who was a neurosurgeon. (AR 367.) In a letter also dated April 19, 2006, Dr. Palumbo informed Dr. Rogaschefsky that the Plaintiff was " in no apparent distress" during the evaluation, but " appear[ed] to have discomfort with both hyperextension as well as flexion of the lumbar region." (AR 367.) The Plaintiff also had " pain with palpation over the right paracentral and right sacroiliac region," but her hip " d[id] not appear to be significantly uncomfortable with palpation or rotation." (AR 367.) Dr. Palumbo noted that an MRI of the Plaintiff's lumbar spine revealed " mild to moderate disc degeneration at L4/L5," as well as " some minimal loss of disc height at this level." (AR 367.) The " other disc heights appear[ed] to be well preserved." (AR 367.) In addition, " [t]here [wa]s some mild lateral recess stenosis noted at L4/L5 secondary to disc bulging." (AR 367.)

At the Plaintiff's April 19, 2006 office visit, Dr. Palumbo assessed that the Plaintiff had " persistent right buttock and right hip and groin pain," which " appear[ed] to be stemming mainly from pathology of the right hip joint." (AR 367.) He stated that the Plaintiff's discomfort " d[id] not have a true radiculopathic component to it." (AR 367.) He also stated that he planned to have the Plaintiff " evaluated by pain management for consideration of local steroid injections." (AR 367.) On June 19, 2006, the Plaintiff had a follow-up appointment with Dr. Palumbo. (AR 366.) Dr. Palumbo found that " there [wa]s not significant pathology located within the hip joint" or in the lumbar spine and stated that he would " not recommend any procedures directed toward her back surgically." (AR 366.)

Prior to Dr. Palumbo's final diagnosis, on May 17, 2006, the Plaintiff began seeing Dr. Craig L. Shalmi, M.D. (" Dr. Shalmi" ), a pain management specialist. (AR 327-29.) Dr. Shalmi diagnosed the Plaintiff with sacrolitis, facet anthropathy/syndrome, lumbar degenerative disc disease and radicular syndrome of her lower limbs. (AR 327-29.) He indicated that the Plaintiff's " pain [was] located in the lumbar spine, [h]ip," which was " described as [a]ching, [b]urning, [s]tabbing [and] [t]hrobbing." (AR 327.) The pain's severity averaged an eight on a scale of ten. (AR 327.) According to Dr. Shalmi, " [t]he pain [was] constant with freq[uent] exacerbations." (AR 327.) Aggravating factors included standing and sitting. (AR 327.)

By June 12, 2006, Dr. Shalmi had prescribed for the Plaintiff Zanaflex, Lunesta, Vicodin, Estrogen, Advair Diskus, Combivent, Albuterol and Prozac. (AR 331.) On July 20, 2006 and August 15, 2006, the Plaintiff saw Dr. Shalmi for sacroiliac joint injections. (AR 334-38.) However, on August 21, 2006, Dr. Shalmi observed that " these 2 injections have not yet yielded results." (AR 339.) The Plaintiff still complained of " pain in the right low back with referral into the right groin and the right leg as far as the knee and intermittently into the ankle." (AR 339.) She also

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complained that she was waking up with pain and of more widespread aches in the shoulders, legs and knees. (AR 339.)

At about this time, on July 26, 2006, Dr. Rogaschefsky notified First Unum that the Plaintiff was " temporarily totally disabled," but that he " expect[ed] fundamental changes in [her] medical condition" in five to six months. (AR 173.)

On October 17, 2006, Dr. Shalmi performed surgery on the Plaintiff's " right L3-4, L4-5 and L5-S1." (AR 518.) The procedure performed was " lumbar selective nerve root block, transforaminal and fluoroscopically guided with injection of contrast and acquisition of root-o-grams." (AR 518.) Dr. Shalmi performed the same procedure a second time on November 2, 2006. (AR 521.) On November 7, 2006, the Plaintiff had a follow up appointment with Dr. Shalmi. (AR 523.) He noted that the Plaintiff's function was mildly impaired and that her pain scores were high. (AR 523.) The Plaintiff had another follow up appointment with Dr. Shalmi on December 18, 2006. (AR 526.) Again, Dr. Shalmi noted that the Plaintiff's function was mildly impaired and that her pain scores were high. (AR 526.) " The pain [was] described as on the right, in the region of the low back[,] the hip and into the RUE in a proximal distribution." (AR 526.)

On January 4, 2007 and February 6, 2007, Dr. Shalmi performed " lumbar intraarticular facet injections with fluoroscopic guidance" on the Plaintiff's " [r]ight L2-L3, L3-L4, L4-L5 and L5-S1." (AR 531, 602.) On February 14, 2007, the Plaintiff visited Dr. Shalmi, who observed that the Plaintiff " ha[d] not gotten relief with [the] two sets of diagnostic facet injections," but that the Plaintiff " did notice some improvement in the region of the right hip bursa following an injection there at the time we did her last facet injections." (AR 604.) Dr. Shalmi further noted that the Plaintiff " ha[d] some pain and tenderness in the iliotibial band on the right" and " [wa]s complaining a lot of low back pain bilaterally with right lower extremity down about as far as the distal calf to the ankle." (AR 604.) The Plaintiff's " gait remain[ed] antalgic" and " [t]he lumbosacral range of motion [was] uncomfortable and limited." (AR 604.)

Dr. Shalmi assessed her condition as facet arthropathy/syndrome and bursitis. (AR 604.) He explained that the Plaintiff was " continu[ing] to have a good deal of pain and dysfunction [in] regards [to] her low back pain" and " ha[d] failed conservative management thus far." (AR 604.) Dr. Shalmi recommended " diagnostic diskography [for the Plaintiff] to identify a discogenic source of pain and direct treatment at that level." (AR 604.)

Thereafter, on March 5, 2007, Dr. Shalmi observed that the Plaintiff " had a degree of relief with her first bursa injection" but that " [s]he report[ed] two days of dramatic symptom improvement after which the pain began returning." (AR 606.) According to Dr. Shalmi, the Plaintiff's pain " [wa]s essentially unchanged." (AR 606.) Dr. Shalmi again noted that he had suggested that the Plaintiff " com[e] in for diagnostic diskography to evaluate if there may be an element of discogenic pain involved and her overall pain syndrome." (AR 606.) However, this procedure had to await authorization. (AR 606.)

On March 26, 2007, the Plaintiff visited again with Dr. Shalmi. He stated that the Plaintiff " ha[d] failed conservative management" and " ha[d] had nonsustained relief with much of what [wa]s done [including the various injections] and continue[d] to have severe low back and proximal lower extremity pain." (AR 608.) At this appointment, the Plaintiff expressed interest in pursuing diagnostic diskography. (AR 608.)

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By April 23, 2007, the Plaintiff was authorized to undergo the diagnostic diskography. (AR 610.) Dr. Shalmi still assessed back pain and facet arthropathy/syndrome but ruled out discogenic syndrome. (AR 610.) The Plaintiff continued to " complain[ ] of pain across her low back with pain into both legs, [which] refer[red] down into her thigh [ ] bilaterally." (AR 610.)

On May 17, 2007, the Plaintiff had the diskography performed. (AR 615.) The diskography was negative at L2-L3 and L3-L4 but positive at L4-L5 and L5-S1. (AR 615.) In this regard, at L4-L5 there was a " central disc protrusion and annular tear," while at L5-S1 there was a " disc bulge with superimposed left lateral protrusion narrowing the right neural foramen with apparent contact of the exiting right L5 nerve root." (AR 615.) The diskography also revealed " [b]ilateral L5 spondylolysis with minimal anterolisthesis of L5 on SI." (AR 615.) Based on these results and the Plaintiff's history, Dr. Shalmi felt that the Plaintiff was " a good candidate for a minimally invasive procedure for disk decompression." (AR 616.)

On September 21, 2007, the Plaintiff had a follow-up appointment with Dr. Shalmi. (AR 1267.) Dr. Shalmi assessed discogenic syndrome not otherwise specified and bursitis of the hip. (AR 1267.) He noted that the Plaintiff had received authorization for nucleoplasty of the L4-5 and L5-S1. (AR 1267.) However, the Plaintiff " [wa]s awaiting the results of some medical studies on her husband, who ha[d] an aortic aneurysm" to see whether or not he would require surgery. (AR 1267.) Thus, she told Dr. Shalmi that " she [would] let [him] know when she want[ed] to schedule the nucleoplasty." (AR 1267.) Similarly, at the January 9, 2008 appointment, the Plaintiff was still " awaiting word on her husband's possible need for aneurysm surgery and therefore d[id] not want to move forward with any procedure on her back until she ha[d] a better idea of what her time requirements are going be in the near future." (AR 1819.) She stated she would know in about two weeks and that they could schedule her procedure then. (AR 1819.) However, by April 29, 2008, the Plaintiff had still not scheduled the procedure, because she was caring for an elderly family member and was unable to go through the recovery period for nucleoplasty. (AR 1983.)

On July 20, 2007, August 20, 2007, November 14, 2007, January 9, 2008 and February 28, 2008, the Plaintiff received additional trigger point injections in the right bursa. (AR 1262, 1265-66, 1817-20, 1962-63.) At the August 20, 2007 appointment, Dr. Shalmi noted that the Plaintiff " did get very good relief following the first injection, though some of her pain has receded." (AR 1265.) Dr. Shalmi further observed that the Plaintiff was " still getting cramping in the legs at night" and " her back pain [wa]s unchanged." (AR 1265.) At the January 8, 2008 appointment, Dr. Shalmi observed that the Plaintiff had some worsening of right-sided hip pain and [that] previous injections ha[d] worked well for [ ] giving her sustained and significant relief of symptoms." (AR 1819.) On February 28, 2008, Dr. Shalmi again noted that " the Plaintiff " ha[d] received good benefit from injections in the past" and sought authorization for the Plaintiff to begin receiving aquatherapy. (AR 1962.)

At a follow-up appointment on March 27, 2008, Dr. Shalmi assessed that the Plaintiff " ha[d] chronic bursitis with lumbosacral radiculopathy[,] ... a central disc herniation at L4/5 and forarnenal narrowing at L5/S1[,] ... [and] a positive discography[.]" (AR 1964.) The Plaintiff's pain " ...

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