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Schussheim v. First Unum Life Insurance Co.

United States District Court, E.D. New York

January 14, 2015


For Plaintiff: Mark L. Friedman, Esq., WILKOFSKY, FRIEDMAN, KAREL & CUMMINS, New York, New York.

For Defendant: Patrick W. Begos, Esq., BEGOS HORGAN & BROWN LLP, Southport, Connecticut.


Denis R. Hurley, Senior United States District Judge.

Plaintiff Cheryl Schussheim (" plaintiff" or " Schussheim" ) commenced this action pursuant to section 502 et al., of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. (" ERISA" ), seeking to recover long term disability (" LTD" ) benefits under an insurance policy issued by defendant First Unum Life Insurance Company (" First Unum" or " defendant" ). Presently before the Court are the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure (" Rule" ) 56. For the reasons set forth below, defendant's motion is granted and Plaintiff's motion is denied.


The material facts are drawn from the parties' Local Civil Rule 56.1 Statements and the administrative record (" AR" ).

I. The Policy

First Unum issued a group disability insurance policy to Schussheim's employer, McAloon & Friedman, P.C. (" McAloon" ). The policy gave First Unum " the discretionary authority to both determine your eligibility for benefits and to construe the terms of the policy." (AR 98.) The policy defines " Disability," in relevant part, to " mean tat because of injury or sickness . . . the insured cannot perform each of the material duties of his regular occupation" and " [f]or attorneys, 'regular occupation' means the speciality in the practice of law which the insured was practicing just prior to the date disability started." (AR 102.)

Under the terms of the policy, a claimant is required to submit proof of claim and proof of continued disability and the proof must cover " 1. The date disability started; 2. The cause of disability; and 3. how serious the disability is." (AR 113.) Proof of continued disability and regular attendance of a physician must be provided within 30 days of the date First Unum requests the proof. Proof " must be given upon request and at the insured's expense." (AR 113.) The policy excludes coverage for a disability that commences in the first twelve months after coverage begins that is " caused by, contributed to by, or resulting from a pre-existing condition," with preexisting condition defined as " a sickness or injury for which the insured received medical treatment, consultation, care or services including diagnostic measures, or had taken prescription drugs or medicines in the three months prior to the insured's effective date [of coverage]." (AR 109.) The policy gives the insurer, at its expense, " the right and opportunity to have an employee, whose injury or sickness is the basis of a claim: 1. examined by a physician, other health professional, or vocational expert of its choice; and /or 2. interviewed by an authorized Company representative. The right may be used as often as reasonably required."

II. Plaintiff's Claim and Medical Information

Schussheim became employed as an attorney with McAloon on December 9, 2002 (AR 1723.) She timely filed a claim under the policy, claiming she became disabled from her occupation as a malpractice attorney with McAloon due to an October 28, 2003 operation to remove and replace a joint implant in her right foot.

Plaintiff's October 28, 2003 surgery was performed by Dr. Jonathan Haber, a podiatrist. By statement dated November 6, 2003, Dr. Haber informed defendant that he had removed a plastic joint, cleaned out the joint and inserted a new joint in plaintiff's right foot. According to the statement, plaintiff's restrictions, i.e., what she should not do, were " no excessive walking, bending, [and] no work" and her limitations, i.e., what she cannot do, were " no work, cannot wear shoes." (AR 50.)

In response to a request dated December 17, 2003 from defendant to Dr. Haber for all of plaintiff's medical records dated 9/01/2003 to present, defendant received the operation report, Dr. Haber's notes and a pathology report. Among other things, the operation report stated that plaintiff complaint was " of a first metatarsophalangeal joint to the right foot that has become progressively painful to her for many years. The patient has had multiple surgeries to this right foot. The patient reports that within the past year the right first metatarsophalangeal joint has become progressively painful and stiff. The patient has been seeing Dr. Haber as well as being seen in the New York College of Podiatric Medicine Clinic for conservative treatment for the painful deformity." (AR 75.)

In January 2004, defendant requested further information from Dr. Haber regarding plaintiff's condition. Defendant also requested that plaintiff complete a supplemental questionnaire regarding any medical treatments between October 1, 2002 and December 31, 2002. Dr. Haber's response stated that in an eight hour work day plaintiff could engage in " 1/4 hours sedentary activity" defined as " 10 lbs. maximum lifting or carrying articles. Walking/standing on occasion. Sitting 6/8 hours." Dr. Haber opined that her recovery would take " at best 6 months." (AR 142-43.) Plaintiff's supplemental questionnaire stated she had not consulted a doctor, clinic or hospital and had not taken medication during the relevant period. (AR 135-139.)

By letter dated February 4, 2004, defendant requested that plaintiff sign a HIPAA authorization form for release of her medical records. According to the claim file, plaintiff called and informed defendant's representative that she was not comfortable signing the form and asked if she could cross out sections she did not like. She was advised that she could not alter the form. She was advised of two options available " she either needed to sign an unaltered form or send in that letter indicating no treatment at all." (AR 173.) Plaintiff returned a signed authorization dated February 11, 2004 on which she wrote " This authorization is valid for pharmacy records between July 29, 2002 through January 29, 2003 only." (AR 176 (emphasis in original).)

In or about February 2004, First Unum approved payment of benefits to plaintiff under a reservation of rights. (AR 165, 195.)

Thereafter, First Unum received additional information from Dr. Haber, dated March 15, 2004 which stated that plaintiff had " difficulty walking for long periods of time or standing; " " cannot work at this time; no bending/squatting." (AR 197) It also received a supplemental statement from plaintiff, dated March 22, 2004, stating that she " cannot walk or stand on my feet for an extended period of time; " she is in " constant pain, with severe redness, swelling and burning" ; and she is " severely limited in all physical activities and ambulation and cannot wear shoes." (AR 207.)

In a letter dated March 30, 2004, defendant wrote to plaintiff that it needed an updated certification but could not request the required information from her physician because she had not supplied a signed authorization to request medical records. The letter enclosed an authorization for records from January 1, 2004 to present and requested it be signed and returned and warned that if plaintiff " did not wish to sign the authorization than it was [her] responsibility to provide [First Unum] with all of the medical information needed to support [her] claim for ongoing benefits." (AR 222-223.) In response plaintiff advised she was going to ask the doctor's office to fax over all the current office visit notes. After receipt of treatment notes for February and March 2004, defendant's representative called the doctor's office and inquired whether the notes were transcribed as the handwritten ones could not be read. The doctor's office responded that they were not transcribed but the doctor would return the call. (AR 229.) Defendant's call log indicates that Dr. Haber called back and the notes of that call indicate that Dr. Haber has been treating plaintiff for the implant for 15 years and plaintiff has always had a problem with healing; Dr Haber estimated an improvement or another surgery within the next six months. (AR 232-33.)

At its request, defendant received further treatment notes of Dr. Haber first through June 16, 2004 and then again through July 23, 2004. After the receipt of the latter, the record indicates that vocationally, there was a need to clarify the physical demands of plaintiff's occupation as she indicated she is on her feet all day long and once there was a clarification the attending physician should be asked to clarify functional capacity. (AP 285.)

In August 2004, Dr. Brock, defendant's medical director wrote to Dr. Haber inquiring as to nonsurgical treatments, any consultation with physical rehabilitation or pain management specialists and plaintiff's current and potential future functional abilities. Thereafter, Dr. Brock and Dr. Haber spoke. According to the August 23, 2004 letter memorializing the conversation, which letter Dr. Haber counter-signed, plaintiff has had foot problems beginning approximately 20 years ago with bunion surgery and a history of multiple surgical procedures on both feet. Her October 2003 surgery was for removal of an old implant and placement of a new one. While plaintiff had improved compared to last presurgical patterns, she still has ongoing problems since that surgery most likely related to synovitis or scar. Surgical options were discussed with plaintiff but Dr. Haber recommended conservative treatment first. Plaintiff was to have a physical therapy regimen of 4 to 6 weeks. Plaintiff has full time sedentary work capacity such as working at a desk but she should not do more than occasional walking/standing and avoid excessive bending of her knees and ankles while standing, stooping or walking. (AR 300-01.) On October 14, 2004, defendant received another copy of the August 23, 2004 letter from Dr. Haber, this time with an addendum dated as of 10/14/2004, which read: " I recently examined Ms. Schussheim in New York on 10/13/04 she does not have full time work capacity. Has difficulty ambulating and pain when sitting or standing or resting. Her pain is constant and has not improved with physical therapy. If conservative treatment is not successful, then more aggressive measures (surgery) will be necessary." (AR 314-15.)

In February 2005, defendant advised plaintiff that it needed updated medical records and also that it had determined that it would be helpful to have a field representative meet with her to discuss her condition and medical treatment in person and therefore a representative would be contacting her. (AR 352.) Updated records were received from Dr. Haber in March 2005 and indicate that after October 2004 his notes were based on telephone conversations with plaintiff. (AR 375-382.)

Plaintiff meet with the field representative on May 5, 2005[1] at a Starbucks store in Oceanside, NY, where the representative lived although he offered to drive to her town. According to the field representative's notes, the meeting was scheduled for 6:00 pm but at 5:30 plaintiff called and said she was stuck in traffic and would be late; she arrived at 6:20 dressed casually in jeans, sweater, jacket and old sneakers and ambulated with a normal gait. She did not allow the interviewer to take a photo of her right foot. The interview lasted 90 minutes during which plaintiff was able to tolerate sitting and occasionally elevated her right leg on an adjacent chair. With respect to her occupational duties, the field representative's notes recite that plaintiff explained she worked on malpractice litigation but did not have any trial duties. Her job duties were making court appearances to set up discovery schedules, file motions and compliance conferences, as well as handle some depositions. According to the representative, she was unable to provide a detailed breakdown of her job duties and stated she could not quantify the time she spent in court versus the time in her office. With respect to her medical condition, the investigator wrote that plaintiff was unable to provide the diagnosis why she is disabled but replied she has had many right foot surgeries and when pressed stated around ten and was unable to recall when she had surgeries prior to October 2003 but that Dr. Haber had performed all of them. She stated that she gets a ride to see Dr. Haber in either New York or New Jersey and that her last visit with him was approximately 4 weeks ago. Plaintiff refused to quantify the amount of time she can tolerate sitting, driving, standing and walking or the amount of weight she can carry or lift. (AR 399-403.)

On August 17, 2005, defendant's representative, Carol Romano, RN, spoke with Dr. Haber. According to the letter confirming that conversation, when asked about plaintiff's current physical capacity, Dr. Haber replied she certainly has full time sedentary capacity and can walk and that this included his consideration of her reported pain level; while she has swelling and discomfort if standing for long periods, she is able to stand and had the capacity to walk up to 1/3 of an eight hour day. According to letter, which was countersigned by Dr. Haber, Dr. Haber did not consider plaintiff disabled. (AR 412-413.)

First Unum obtained a vocational evaluation of plaintiff from Deede DeLay, Ph.D. in August 2005. (AR437.) Dr. DeLay determined that plaintiff had " full-time sedentary work capacity," and that plaintiff was " able to stand and walk for up to 1/3 of an 8 hour workday." (Id.) Dr. DeLay observed:

Occ Clarification: An occ clarification in the file was completed by Norma Parras on 7/28/04. This was defined as sedentary but with frequent walking, occasional standing. This was based on 0 Net information and from the limited information in the file. The field report provides additional details about her occupation. She states she does not perform trial work but does perform depositions, goes to court to set up the discovery schedule, file motions and compliance conferences.
Update: Using a more recent resource which includes the e-DOT, this is a sedentary occupation. The duties described by the claimant, although include walking/standing, are consistent with this definition. This includes standing and walking duties performed overall on an occasional basis in an 8 hour day.


By letter dated August 23, 2005, First Unum notified plaintiff that it was not able to approve further benefits. The letter began:

[O]ur review was in accordance with the following definition of disability:
Disability and disabled mean that because of injury or sickness:
1. you cannot perform each of the material duties of your regulation occupation; or
2. you, while unable to perform all of the material duties of your regulation occupation on a full-time basis, are:
a. performing at least one of the material duties of your regulation occupation or another occupation on a part-time or full-time basis; and
b. earning currently at least 20% less per month than your indexed pre-disability earnings due to that same sickness or injury.
Note: For attorneys, " regular occupation" means the specialty in the practice of law which you were practicing just prior to the date the disability started."
Please note, you are insured for your occupation of Attorney as it exists in the national economy. Also, you are not insured for job availability or for any issues of commuting to and from a workplace.

(AR423.) The letter then reviewed the most recent information received from Dr. Haber, as well as from telephone conversations with plaintiff and the field evaluation and went on to state:

Based on our review of your file we note that you are claiming an impairment due only to your right foot condition. We understand that you have several surgical procedures on your right foot. Your physician indicates that you have made a recovery from these procedures, that you are doing quite well and that he does not consider you to be disabled. He provides the following as your work capacity: Can perform full time sedentary work and can stand/walk up to 1/3 of an 8 hour workday. We feel these restrictions and limitations are reasonable. These restriction and limitations do not preclude you from performing your seated occupation of Attorney. As the medical information in your file no longer supports an impairment precluding you from performing your occupation your claim with us is closed.

(Id. at 426-27.)

After messages were left for plaintiff on August 23 and 24, 2005, defendant's representative spoke to her on August 24 and verbally advised her that Dr. Haber indicated " she could do full time seated occupation and occasional stand/walk up to 1/3 of an 8 hour day" and based on this information, plaintiff was no longer impaired and claim has been closed. (AR 443)

On August 25, 2005, defendant's representative received a telephone call from Dr. Haber. According to the notes of that conversation, Dr. Haber was advised that plaintiff was never told Dr. Haber said she could stand 8 hours; rather she was told that he indicated she could do seated work and stand/walk on an occasional basis. The notes then continue:

- He said " She wants to be on disability."
- He reiterated that she can sit and is able to stand and that yes she could stand up to 2 hours per day but not for 2 continuous hours, but yes, she could stand for 2 hours throughout the day.
-Discussed the duties of her occupation. Expl[aine]d that her occupation is a seated occupation and based on her condition as he described above, she is not disabled from ...

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