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Wedge v. Shawmut Design & Constr. Group Long Term Disability Ins. Plan

United States District Court, S.D. New York

June 2, 2014

WILLIAM WEDGE, Plaintiff,
v.
THE SHAWMUT DESIGN AND CONSTRUCTION GROUP LONG TERM DISABILITY INSURANCE PLAN and RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendants

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[Copyrighted Material Omitted]

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For William Wedge, Plaintiff: Mark Peter Scherzer, The Law Office of Mark Scherzer, New York, NY.

For The Shawmut Design and Construction Group Long Term Disability Insurance Plan, Reliance Standard Life Insurance Company, Defendants: Emily Anna Hayes, LEAD ATTORNEY, Wilson, Elser, Moskowitz, Edelman & Dicker, (WPls), White Plains, NY; Joshua Bachrach, LEAD ATTORNEY, Wilson, Elser, Moskowitz, Edelman & Dicker LLP (PA), Philadelphia, PA.

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OPINION AND ORDER

KATHERINE POLK FAILLA, United States District Judge.

On July 24, 2012, Plaintiff William Wedge commenced this litigation under the Employee Retirement Income Security Act of 1974 (" ERISA" ), 29 U.S.C. § § 1001-1191c, 1202-1242, 1301-1461, against Defendants Shawmut Design and Construction Group Long Term Disability

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Insurance Plan (the " Shawmut Plan" or " Plan" ) and Reliance Standard Life Insurance Company (" RSLI" ) to contest a denial of benefits by RSLI. Plaintiff, who has a disability that inhibits visual capacity in his right eye, was denied extended Long Term Disability Benefits from RSLI upon its determination that Plaintiff did not establish that he was " Totally Disabled," as defined under the Plan. Because RSLI's decision to deny Plaintiff the benefits sought was not arbitrary and capricious, Plaintiff's motion for summary judgment is denied, and Defendants' motion for summary judgment is granted.

BACKGROUND[1]

A. Plaintiff's Employment with Shawmut Design and Construction and His Long Term Disability Insurance Plan

Plaintiff is a former employee of Shawmut Design and Construction Group (" Shawmut" ), a construction management firm. (56.1 Statement ¶ 2; AR 336-37). During the relevant time period, Plaintiff was a Senior Project Manager at Shawmut, whose responsibilities included overseeing construction operations for large-scale projects that required an advanced level of construction expertise; these projects included the construction and/or renovation of luxury and premier specialty retail stores, health clubs, spas, and fitness centers. (AR 328-29). Plaintiff's job required him, among other things, to travel via car and airplane; drive; walk; ascend and descend stairs, ladders, and scaffolding; conduct extended construction-site visual inspections; read and work with construction drawings, plans, and hard-copy and computer-based documents; and partake in financial and strategy meetings. ( Id. at 331).

Shawmut established and maintained the Shawmut Plan, a benefit plan for its employees. ( See AR 1-31). The Shawmut Plan, in turn, purchased Group Long Term Disability Policy No. 114007 (the " Policy" ) from Defendant RSLI to provide long term disability (" LTD" ) benefits to Shawmut Plan beneficiaries. ( See 56.1 Statement ¶ 4). Under this arrangement, Shawmut was the Plan's Administrator, and RSLI was the claim review fiduciary with respect to the Policy and the Plan. ( Id. at ¶ ¶ 5-6). In this role, RSLI had " the discretionary authority to interpret the Plan and the insurance policy and to determine eligibility for benefits." ( Id. at ¶ 6).

As a Shawmut employee, Plaintiff was a participant in, and received coverage under, the Shawmut Plan. (56.1 Statement ¶ 3). Based on Plaintiff's rate of earning, he was classified as a Class 2 employee under the Policy. ( Id. at ¶ 7). For such employees, the Policy defines disability, in relevant part, as follows:

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" Totally Disabled" and " Total Disability" mean that, as a result of an Injury or Sickness: (1) during the Elimination Period and for the first 24 months for which a Monthly Benefit is payable, an Insured cannot perform the material duties of his/her Regular Occupation ... (2) after a Monthly Benefit has been paid for 24 months, an Insured cannot perform the material duties of any occupation. Any occupation is one that the insured's education, training or experience will reasonably allow ...

(AR 10). The Policy also includes a provision that requires the offset of benefits received from what it termed Other Income Benefits, including any award of individual or family Social Security Disability benefits. ( See id. at 18).

B. Plaintiff's Disability and Initial Approval for Long Term Disability Benefits

On February 23, 2009, while Plaintiff was employed by Shawmut, he was examined by Dr. Guarang Trivedi for a gray spot in the center of Plaintiff's field of vision in his right eye that had manifested two weeks earlier. (AR 300-01). In his medical report, Dr. Trivedi noted his impression that Plaintiff may have central serous chorioretinopathy (" CSCR" ) ( id. at 300-01), which is also referred to as central serous retinopathy (56.1 Statement ¶ 11).[2] Dr. Trivedi referred Plaintiff to Dr. Howard Charles for a retinal examination. (AR 301). Plaintiff was examined by Dr. Charles on February 25, 2009, during which Dr. Charles diagnosed Plaintiff with Type 1 CSCR. ( Id. at 311). Dr. Charles explained, in a letter to Dr. Trivedi summarizing his examination of Plaintiff, that CSCR " tend[s] to resolve over weeks to months." ( Id.).[3]

Based on the prognosis received from Dr. Charles, on March 26, 2009, Plaintiff informed Shawmut that he was unable to perform the regular functions of his employment due to his CSCR. (AR 328). Plaintiff ceased working for Shawmut as of that day, and submitted a claim for benefits under Shawmut's short term disability plan. ( See id.). A few months later, in July 2009, Plaintiff's condition had not improved, and he applied for LTD benefits under the Policy. ( Id. at 340-46).

RSLI granted Plaintiff's application for LTD benefits by letter dated April 8, 2010. (AR 257-58). In so doing, RSLI determined that Plaintiff became totally disabled from his Regular Occupation, as defined by the Policy, on March 27, 2009, and that benefits to him under the Plan were payable as of June 25, 2009, after the Elimination Period was satisfied. ( Id.). In that same letter, RSLI suggested that Plaintiff apply for Social Security Disability (" SSD" ) benefits. More importantly for the instant litigation, RSLI informed Plaintiff that in order to qualify for LTD benefits beyond 24 months, Plaintiff must demonstrate that he is " totally disabled from performing the material duties of Any Occupation" as defined under the Policy. ( Id.).

C. Plaintiff's Social Security Administration Benefits

Plaintiff heeded RSLI's suggestion and applied for SSD benefits. In connection with that application, Plaintiff was initially represented by counsel suggested by

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RSLI. ( See AR 214-15). In December 2010, however, Plaintiff informed Shawmut that the appointed counsel intended to withdraw from representing him in the SSD benefits proceeding " based on an assessment that [Plaintiff's] claim ha[d] no merit." ( Id.).

In connection with his SSD application, Plaintiff was examined by Dr. Martin Bernstein, the SSA's independent ophthalmologist. (AR 1536-41). Dr. Bernstein's examination revealed that Plaintiff had peripheral count finger vision and no near vision acuity in his right eye. ( Id. at 1538).[4] The examination further recounted that Plaintiff had informed Dr. Bernstein that any reading caused him " severe temporal headaches and eye aches and a tremendous feeling of tension, stress and some nausea." ( Id. at 1537). Notably, Dr. Bernstein discerned an inconsistency between Plaintiff's subjective complaints and the objective tests, and related in his report that he (Dr. Bernstein) could not explain, and the objective tests did not indicate, why Plaintiff's " central scotoma [was] so obviously much larger than the actual diameter of the pathology in the macula." ( Id. at 1540).[5]

The SSA initially denied Plaintiff's request for benefits. Subsequently, in January 2012, U.S. Administrative Law Judge Roberto Lebron awarded Plaintiff SSD benefits. (AR 1494-99). In reaching this determination, Judge Lebron noted that he gave " great weight" to the opinions of Dr. Charles and of Dr. David Robbins, Plaintiff's psychiatrist. ( Id. at 1498).

D. RSLI's Discontinuance of Plaintiff's Long Term Disability Benefits

After providing Plaintiff with LTD benefits for 24 months under the Policy on account of his demonstrated inability to perform the material duties of his Regular Occupation, RSLI informed Plaintiff by letter dated June 3, 2011, that he no longer qualified for LTD benefits because he had not demonstrated an inability to perform the material duties of any occupation, and thus had not satisfied the definition of " Totally Disabled" under the Policy. (AR 277-79). RSLI explained that although Plaintiff was unable to work in his prior occupation, he " appear[ed] capable of sedentary work activity." ( Id. at 278).

To reach this determination, RSLI reviewed all of the information in Plaintiff's file, including medical records provided by Dr. Alphonso Aversa, Plaintiff's general physician; Dr. Seth Shifrin, who saw Plaintiff for an injury to his right thumb; Dr. Robbins; and Dr. Charles. ( Id.). As relevant to Plaintiff's eye condition, Dr. Aversa, who saw Plaintiff for a comprehensive physical on May 18, 2010, indicated that Plaintiff's " visual loss has been unchanged," and that he was " followed regularly by ophthalmology." ( Id. at 732). Dr. Charles indicated in a January 6, 2010 letter submitted in support of Plaintiff's initial claim for LTD benefits that Plaintiff complained of headaches " when having to do extended reading of the sorts he was required to do," a complaint that the doctor found consistent with the reported

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symptoms of CSCR. ( Id. at 500). Subsequently, in the record of an examination of Plaintiff conducted on May 26, 2010, however, Dr. Charles stated that Plaintiff's " level of vision is not consistent with the macular findings," thereby echoing Dr. Bernstein's observation of the disparity between Plaintiff's illness and his reported symptoms. He suggested that Plaintiff would " benefit from an updated refraction [test]," and related that he had asked Plaintiff to schedule such a test. ( Id. at 692).

RSLI also performed a Residual Employment Analysis (" REA" ), which is designed to determine which occupation, if any, an insured has the ability to perform. (AR 741). After considering Plaintiff's medical information, along with his education and training, the REA concluded that in light of Plaintiff's physical restrictions and limitations, he was capable of performing one of the following occupations: Account Executive, Estimator, Media Planner, Public Relations Representative, or Advertising Sales Representative. ( Id. at 742-43). Based on Plaintiff's entire file, including the medical records and the REA, RSLI concluded that Plaintiff would qualify for a subset of the occupations identified by the REA, namely, Account Executive, Media Planner, and Estimator. ( Id. at 278).

E. Plaintiff's Appeal of RSLI's Termination of LTD Benefits

1. Plaintiff's Submissions In Connection With the Appeal

On December 20, 2011, through counsel, Plaintiff appealed RSLI's decision to terminate his LTD benefits. (AR 776-86). Plaintiff submitted the following materials in support of his appeal: two letters from Dr. Charles; treatment notes and the Social Security report submitted by Dr. Robbins; records of Dr. Bella Malits, who handled Plaintiff's pain management; treatment records from his primary care providers, orthopedists, and other specialists; a report from a vocational consultant, Andrew Pasternak; and a personal statement from Plaintiff himself. (56.1 Statement ¶ 20).

These materials reflect that Plaintiff was examined by various physicians for an array of ailments, some of which were unrelated to Plaintiff's CSCR. Inasmuch as the parties have focused the instant motions on the medical evidence concerning Plaintiff's eye issues, the Court focuses on that evidence in this Opinion. In this regard, Dr. Charles reported that in comparing Plaintiff's examination results from May 22, 2010, and August 31, 2011, there appeared to be a " slight progression" in Plaintiff's condition. (AR 789). Dr. Charles concluded that Plaintiff would have the following visual capacities in an eight-hour workday:

His ability to read (near vision) would be for approximately 1 to 1-1/2 hours. His ability to see at distance for any sustained period of time would probably also be for approximately 1 hour. He might be able to have functioning far vision for 2-3 hours, provided he takes occasional breaks. He will never have depth perception during the course of an 8-hour workday because he does not have useful central vision in one eye.... His peripheral visual field, however, would remain constant throughout an entire 8-hour workday, because the areas of damage involve the central and not the peripheral retina.

( Id. at 791).

Andrew Pasternak conducted a comprehensive vocational assessment, functional capability evaluation, and employability study, in which he concluded that Plaintiff was unable to perform the material duties

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of both his past occupation and any occupation for which his education, training, or experience would reasonably allow at a competitive sustained level. (AR 809). Pasternak explained:

While on paper [Plaintiff] would appear to have many transferable skills, the ability to utilize any of them has been especially severely compromised by the functional negative effects of his somewhat rare eye condition. Therefore, it is my concluding opinion that any possible transferability of his prior skills to a Sedentary job would be excluded by this.
My conclusions are based on a combination of factors including the ongoing effects of his conditions with chronic pain in the lower back and neck, visual loss and pain in the right eye, and inability to maintain persistence to work task[s], and a competitive work pace, as well as an inability to concentrate[,] and to adapt appropriately to changes in the work setting.

( Id. at 809-10).

In his personal statement, Plaintiff related symptoms that he experienced as a result of his CSCR, and how he believed those symptoms restricted his ability to perform tasks that would be required for the positions identified by RSLI in its denial letter. (AR 971-78). In particular, Plaintiff stated that he was able to read and write on a computer for approximately one hour before he developed a severe headache that was often accompanied by substantial muscular-skeletal pain in his neck and back, blurred vision in his left eye, and dizziness. ( Id. at 975). With respect to his neck and back pain, Plaintiff identified that he had " underlying orthopedic problems with [his] back and neck, principally a herniated disc," and that the CSCR caused Plaintiff " to strain and twist around to see images or text on the computer, exacerbating [his] back and neck pain." ( Id. at 972). Based on his subjective limitations, Plaintiff concluded his " visual limitations and their physiological consequences" would prevent him from working in any of the occupations identified by RSLI even though Plaintiff believed that his " cognitive capacity [was] still up to the task." ( Id. at 977).

2. The Independent Medical Examination

By letter dated January 12, 2012, RSLI requested that Plaintiff attend an independent medical examination with Dr. Robert Josephberg on February 2, 2012. (AR 284). RSLI explained that upon reviewing the supplemental evidence that Plaintiff had provided in support of his appeal and consulting with RSLI's medical staff, it had determined that another medical opinion was appropriate. ( Id.). Preparatory to the examination, Dr. Josephberg obtained Plaintiff's individual medical history and records documenting his CSCR. At the examination, Plaintiff provided Dr. Josephberg with a memorandum dated February 7, 2012, regarding Plaintiff's condition and treatment history, which Dr. Josephberg reviewed. (Plaintiff's Declaration dated Dec. 13, 2013, Ex. A).

After examining Plaintiff, Dr. Josephberg produced an initial report on or about February 21, 2012 (the " February 21 Report" ). (AR 1581-91). The physical examination ...


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