United States District Court, S.D. New York
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
In this action, brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., plaintiff Melissa Tretola, a former employee of Cleary Gottlieb Steen & Hamilton LLP ("Cleary"), challenges the decision of defendant First Unum Life Insurance Company ("First Unum") to terminate her long-term disability benefits, effective February 14, 2012. Tretola asserts, inter alia, that she suffers from a variety of ailments, including fibromyalgia, irritable bowel syndrome ("IBS"), and syringomyelia, which prevent her from working, and that First Unum's decision to terminate her benefits was not supported by the evidence, contrary to the terms of her disability policy, and tainted by a conflict of interest. Tretola seeks reinstatement of her monthly disability payments, and compensation for all payments missed since the date of termination.
Pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Court denies the parties' cross-motions for summary judgment to the extent they are based on Tretola's fibromyalgia and IBS. Trial is necessary to enable the Court to reach a judgment as to whether termination of Tretola's benefits was justified based on either or both of those conditions. However, the Court grants First Unum's motion for summary judgment, and denies Tretola's motion, with respect to Tretola's syringomyelia.
A. Tretola's Employment and Cleary's Long-Term Disability Insurance Policy
Tretola, a North Carolina resident born in 1970, was employed as a senior purchasing specialist in the Manhattan office of Cleary, an international law firm, between October 2007 and April 2009. Pl. 56.1 ¶¶ 1, 21; AR 4-5. In that role, Tretola "oversaw the global procurement of networking and end user hardware, software, peripherals, leased equipment, marketing materials, office supplies, and service, " and "negotiate[d] agreements with vendors." Pl. 56.1 ¶ 22. She earned an annual salary of $100, 000. Id. ¶ 21.
As a Cleary employee, Tretola was covered by a group disability insurance policy (the "policy"), policy number 452278, which First Unum, licensed to issue insurance in New York, id. ¶ 2, issued to Cleary on January 1, 1990. AR 163. Tretola, as a senior purchasing specialist at Cleary, was classified as a Class 1 employee, according to the policy. Id. at 165.
Under the policy, a covered employee is "disabled" because of injury or sickness if:
1. the insured cannot perform each of the material duties of [her] regular occupation; or
2. the insured, while unable to perform all of the material duties of [her] regular occupation on full-time basis, is:
a. performing at least one of the material duties of [her] regular occupation or another occupation on a part-time or full-time basis; and
b. earning currently at least 20% less per month than [her] indexed pre-disability earnings due to that same injury or sickness.
Id. at 174. Disabled Class 1 employees earn the lesser of (1) a monthly benefit of 60% of the employee's monthly earnings, or (2) the maximum monthly benefit of $22, 500. Id. at 165. An employee who becomes disabled before age 60 receives benefits under the policy until the employee's 65th birthday. Id. at 166.
To claim disability benefits under the policy, an employee must send a written notice of claim to First Unum within 30 days of the date the disability started, if possible. Id. at 185. The employee also must send proof of the claim to First Unum, which must cover (1) the date the disability started, (2) the cause of the disability, and (3) how serious the disability is. Id. Upon receiving proof that an employee is disabled, First Unum pays the employee a monthly benefit after the end of the "elimination period, " which is the period of consecutive days of disability for which the approved employee does not receive any payable benefits from First Unum. Id. at 170, 176. (For Class 1 employees, the elimination period is 180 days under the policy. Id. at 166.) If the employee receives benefits from the Social Security Administration ("SSA"), the monthly benefits the employee receives from First Unum are reduced to reflect receipt of those benefits. Id. at 178.
Under the policy, disability benefits are terminated on the earliest of:
1. the date the insured is no longer disabled;
2. the date the insured dies;
3. the end of the maximum benefit period; or
4. the date the insured's current earnings exceed 80% of [her] indexed predisability earnings.
Id. at 179. For continuing disabilities, an employee must send proof of claim to First Unum within 30 days of First Unum's request for proof Id. at 185. This proof of claim is to cover, inter alia, the date the disability started, the cause of the disability, and how serious the disability is. Id.
First Unum also reserves the right to have an employee who claims injury or sickness be examined by a physician, other health professional, or vocational expert of First Unum's choice, and/or interviewed by a First Unum representative, as often as reasonably required. Id. at 186. The policy does not confer upon First Unum the discretionary authority to determine eligibility for benefits or to interpret its terms and provisions. Pl. 56.1 ¶ 8; Def. 56.1 ¶ 10.
B. Tretola's Initial Approval by First Unum for Long-Term Disability Benefits
1. Overview of Tretola's Bases for Claiming Disability
Tretola's disability claims center on three conditions: fibromyalgia, IBS, and syringomyelia. Tretola was diagnosed with these conditions at different points of time: In 2001, Tretola, then age 30, was diagnosed with syringomyelia, AR 2919, 3574, which "involves the abnormal collection of cerebral fluid in the spine that is often referred to as a syrinx or a cyst. Common symptoms include pain, weakness and stiffness in the back, shoulders, arms, or legs, " Kulakoski v. Barnhart, 210 F.Supp.2d 201, 203 (E.D.N.Y. 2002). In 2008, Tretola reportedly began having alternating constipation and diarrhea due to IBS. AR 365. On May 4, 2009, Tretola's gastroenterologist, Dr. David Purow, completed an IBS diagnostic test on Tretola, which determined that she had a 55% probability of having IBS. Id. at 423. Finally, on September 23, 2009, Dr. Harley Cohen, a rheumatologist, diagnosed Tretola with fibromyalgia, id. at 559, an ailment that leads to "widespread chronic pain, " Rodriguez v. McGraw-Hill Cos., 297 F.Supp.2d 676, 678 (S.D.N.Y. 2004) (quoting Lawrence Kagen, Fibromyalgia Report for the Court). Dr. Cohen, after evaluating Tretola, found a display of "generalized tender points" and "widespread tenderness" indicative of fibromyalgia. AR 559. As a result of these three conditions, Tretola has consulted with many doctors. Pl. 56.1 ¶¶ 47-73.
2. First Unum's Initial Review of Tretola's Claim for Long-Term Disability Benefits
On December 12, 2009, Tretola submitted a long-term disability benefits claim to First Unum, claiming that she was disabled from syringomyelia, fibromyalgia, IBS, and inflammatory arthritis, and that she suffered from symptoms of joint pain, diarrhea, and fatigue. AR 96-99. Tretola noted that she "began waking up in pain in all [her] joints that progressively got worse. [She] would have gastro attacks everytime [she] ate." Id. at 96. She further stated that she had first been treated by a physician for these conditions on February 18, 2009. Id.
Because of her conditions, Tretola stated, she could not perform the following duties required of her in her job: "sitting, typing, reading for long lengths of time, writing, memory." Id. at 97. In submitting her disability claim, Tretola provided a list of her doctors, including Dr. Cohen, a rheumatologist, Dr. Max Rudansky, a neurologist, Dr. Balveen Singh, a cardiologist, Dr. Patrick Burns, a primary care physician, and Dr. Purow, a gastroenterologist. Id. at 97-98. Tretola also stated that she was taking a variety of medications, including Tramadol, Neurontin, Vicodin, Valium, Tizanidine, and Premarin. Id. at 97.
On December 11, 2009, Dr. Cohen submitted an attending physician statement form in support of Tretola's application for long-term disability benefits; in it, he assessed Tretola's physical abilities and limitations. Id. at 101. Dr. Cohen concluded that although Tretola could occasionally sit, stand, and walk, frequently perform fine finger movements, and continuously perform hand-eye coordinated movements, she was restricted from pushing, pulling, climbing, lifting, bending, stooping, prolonged sitting/standing, and carrying more than two pounds. Id. at 101-02. Dr. Cohen stated that it was "unknown" when he expected improvement in Tretola's functional capacity, or ability to work. Id. at 102. Further, Dr. Cohen found that fibromyalgia was the primary diagnosis preventing Tretola from working, and that her syringomyelia was a secondary condition. Id. at 155.
On December 23, 2009, Cleary submitted, in connection with Tretola's disability claim, an employer statement to First Unum. Id. at 110-15. In it, Cleary attached the job duties and qualifications for Tretola's "senior sourcing specialist/strategic sourcing lead" position. Id. at 114-15. Cleary's description of Tretola's position did not identify any physical or travel requirements. Id. Cleary's statement also reported that Tretola's regular work schedule was seven hours per day, five days per week, for a total of 35 hours per week. Id. at 110.
On January 21, 2010, First Unum notified Tretola by letter that it had received her claim. Id. at 222. In the letter, Jo-Anne Capron, a senior disability benefits specialist at First Unum, informed Tretola that First Unum required additional information about Tretola's restrictions and limitations and the requirements of her job as senior sourcing specialist. Id. at 223. Capron also reiterated the terms of the Policy, including that Tretola would need to provide proof to First Unum of her continued disability and regular attendance of a physician, within 30 days of First Unum's request for proof. Id. Capron noted that for First Unum to assess Tretola's medical restrictions and limitations, it required a review of Tretola's medical records; Tretola and her attending physicians also had the right to request an "independent medical examination" ("IME") if opinions differed as to the degree of Tretola's medical impairment. Id. at 224. Capron further stated that First Unum was contacting Tretola's attending physicians for medical information, and required a detailed phone call with Tretola to discuss the policy and her condition and treatment. Id. at 223.
On January 25, 2010, Capron conducted a phone interview with Tretola. Id. at 264-72. Tretola stated that she had left work in April 2009 because, at the end of 2008, she began having "stomach pains and massive diarrhea, " which would disable her to the point that she would have to stay in the bathroom for hours, and thus was incapacitated. Id. at 265-66. According to Tretola, a specialist then diagnosed her with IBS and advised her to not eat dairy and meat. Id. at 265. Tretola stated that before developing IBS, she weighed 132 pounds, that by April 2009, she weighed 112 pounds, and that her current weight was 118 pounds. Id. at 266. Tretola also discussed her fibromyalgia. She reported that Dr. Cohen had diagnosed her with that condition, and that as a result of it, she was experiencing much pain. Id. at 266-67. Finally, Tretola told Capron that her doctors had advised her that she could regain work capacity in two years. Id. at 267.
On February 25, 2010, Deborah A. Maxcy, a vocational rehabilitation consultant at First Unum, performed a vocational review to determine the physical requirements of Tretola's occupation. Id. at 628-31. Maxcy, through evaluating Cleary's and Tretola's descriptions of the job, concluded that Tretola's position at Cleary was most consistent with "Sourcing Specialist eDOT 162.157-119." Id. at 629. Such a position, Maxcy stated, requires these physical demands: "[l]ight work, exerting up to 20 lbs occasionally, or up to 101bs frequently. In addition, this occupation involves frequent sitting, reaching, handling, fingering with occasional standing and walking." Id. at 630.
On February 25, 2010 and March 1, 2010, two private investigators, on behalf of First Unum, conducted surveillance of Tretola at her home in Huntington Station, New York. Id. at 632, 635-46. During neither instance was Tretola observed conducting physical activity. Id.
On February 26, 2010, John Shannon, a First Unum field representative, conducted an in-person interview with Tretola at her home. Id. at 653-58. Tretola was able to walk and greet Shannon, but she sat for most of the interview. Id. at 653-54. Tretola's mother was present for, but did not participate in, the interview. Id. at 653. Tretola stated that she began to experience symptoms of fibromyalgia in April 2009 and stopped working for that reason. Id. at 656. Tretola also stated that although her syringomyelia caused her "severe" pain, she was able to continue working full-time, and that her IBS caused her to suffer "severe" stomach cramps. Id. In terms of her physical limitations, Tretola noted that she was unable to drive because of the medications she was taking. Id. at 653. Tretola also reported that, because she was unable to work due to her illness, she was having trouble with her finances, and was in the process of selling her New York home to move into her parents' home in North Carolina. Id.
On March 8, 2010, Tretola advised Capron via phone that she was moving to her parents' home in Mill Spring, North Carolina, on March 9, 2010. Id. at 673-74. She stated that given her disability, her parents would help take care of her. Id. at 673.
On March 19, 2010, Dr. Stephen Leverett, a First Unum physician consultant, conducted the first medical review of the records First Unum had received from Tretola's treating physicians. Id. at 699-707. Tretola's records included records of the aforementioned conversations between Tretola and First Unum representatives, as well as: (1) documents Tretola submitted in an application for short-term disability benefits; (2) documents Tretola submitted in an application for New York state disability benefits; (3) documents Tretola submitted in application for benefits under the Family and Medical Leave Act ("FMLA"); and (4) medical records from her treating physicians. Specifically, the records reflected the following, organized by condition:
Fibromyalgia: On November 9, 2009, Dr. Cohen completed a short-term disability benefits form report for Tretola, stating that he had diagnosed Tretola with fibromyalgia and that she was thereby disabled. Id. at 288. He reported that he could not conclude when Tretola could return to work. Id. at 289. Dr. Rudansky also submitted a December 3, 2009 New York state disability benefits form in support of Tretola's fibromyalgia claims. Id. at 301. In the form, Dr. Rudansky stated that Tretola had suffered from, inter alia, pain in her neck and back, as well as spasms and hand tremors. Id. at 302. He added that Tretola did not require an assistive device to walk, but she could only lift less than two pounds. Id. at 303-04.
IBS: Dr. Purow, in an August 14, 2009 report for Tretola's application for short-term disability benefits, stated that he had diagnosed Tretola with "severe" IBS and abdominal pain, but had concluded that she would be able to return to work on June 24, 2009. Id. at 292. In a report for Tretola's FMLA benefits application, Dr. Purow also stated that he had first treated Tretola on February 18, 2009, and that she could "suffer... debilitating abdominal pain [and] develop severe urgent diarrhea. This at times can render her incapable of successfully carrying out nearly any job function." Id. at 296.
Syringomyelia: Tretola's syringomyelia condition was addressed relatively rarely in the records that First Unum had received at this point. Instead, doctors, including Dr. Burns, Tretola's primary care physician, referred to this condition in the context of her past history. For example, on February 17, 2006, Dr. Burns recorded Tretola's past history of syringomyelia. Id. at 456.
Aside from the materials that Tretola had provided in connection with her previous applications for benefits, First Unum also received medical records from Tretola's doctors. These included medical records submitted by Dr. Burns to First Unum on January 22, 2010, regarding (1) eight office visits conducted between February 2006 and December 2009,  (2) correspondence between Dr. Burns and Dr. Cohen between September 2009 and December 2009,  and (3) various IBS-related diagnostic tests. Notably, in a September 23, 2009 letter to Dr. Burns, Dr. Cohen noted that Tretola "clearly displays widespread tenderness" in regards to her fibromyalgia condition. Id. at 397. On December 11, 2009, Dr. Cohen stated that Tretola "ha[d] widespread fibromyalgic tender points and severe muscle spasm around her upper trunk. She demonstrates also a trigger point at her right trapezius muscle." Id. at 444. With respect to Tretola's IBS, a May 4, 2009 IBS diagnostic test found that the "[p]attern [could not] confirm IBS, " and that Tretola had a 55% probability of IBS. Id. at 423.
In his review of the aforementioned medical records, Dr. Leverett primarily evaluated Tretola's fibromyalgia, syringomyelia, and IBS. He drew these conclusions, by condition:
Fibromyalgia: Dr. Leverett noted that Tretola had received contradictory treatment recommendations, with Dr. Rudansky, her neurologist, suggesting bed rest, and her attending physician encouraging her to exercise. Id. at 705. Dr. Leverett also noted that "[t]he majority of individuals are able to work and function with a diagnosis of fibromyalgia, " and stated that a comprehensive pain treatment program was typically most effective in addressing symptoms associated with fibromyalgia. Id.
IBS: Dr. Leverett stated that this condition appeared to "wax and wane" and most recently demonstrated "clinical improvement, " according to Tretola's gastroenterologist, Dr. Purow. Id. Dr. Leverett also noted that Tretola did not appear to be meeting with doctors regularly for this condition, and there was no documented weight loss or evidence of malnutrition. Id.
Syringomyelia: Dr. Leverett noted that it was "not clear if this condition ha[d] progressed" since Tretola had first been diagnosed with it at age 30. Id. Dr. Leverett also stated that there was no documentation of clinical examinations demonstrating weakness or atrophy in that area of her body; that Tretola's neurologist, Dr. Rudansky, had "somewhat cryptic" notes about Tretola's condition; and that Dr. Burns principally documented "spasms" associated with the condition. Id.
Dr. Leverett ultimately concluded that because of the pain that Tretola had reported, it was "reasonable" that she "would be unable to reliably sustain work." Id. at 706. Dr. Leverett also concluded that Tretola had a "very good" prognosis to return to functional capacity, "especially if [Tretola] participate[d] in a comprehensive pain management program." Id. at 707. For next steps, Dr. Leverett recommended clarifying Tretola's functional capacity by contacting her neurologist and rheumatologist, and obtaining assessments on how her syrinx impacted her functional capacity. Id.
3. First Unum's Initial Approval of Long-Term Disability Benefits
On March 22, 2010, First Unum, in a letter, informed Tretola that it had approved her request for benefits, determining her date of disability to be April 24, 2009, with her benefits disbursement therefore beginning on October 21, 2009 (i.e., after the 180-day elimination period). Id. at 722. Under the benefits plan, First Unum provided Tretola with $5, 000 per month. Id. at 710. First Unum's letter also noted that it had approved of her benefits because she was "unable to sustain the capacity to perform [her] occupation due to [her] medical conditions of Syringomyelia and Fibromyalgia." Id. at 711. The letter further stated that First Unum would continue to review her medical records because it expected her to be able to return to her occupation with treatment. Id. It notified Tretola that First Unum would follow up with her in about one to two months to obtain an update on her medical condition and to discuss her ongoing treatment. Id.
C. Tretola's SSA Claim
On October 7, 2009, before filing for long-term disability benefits, Tretola applied for Social Security disability benefits. Id. at 1212. On December 10, 2009, Dr. Peter Stefanides conducted an Internal Medical Exam of Tretola for the SSA. Id. at 1522. Dr. Stefanides concluded that Tretola's syringomyelia and IBS prognoses were stable, while her fibromyalgia prognosis was guarded. Id. at 1526. He also stated that Tretola had "moderate restrictions in any prolonged walking, squatting, bending or lifting." Id.
On December 17, 2009, a physical residual functional capacity assessment was conducted. Id. at 1527. This report concluded that Tretola could occasionally lift 20 pounds, frequently lift and carry 10 pounds, and stand, sit, and walk for six hours in an eight-hour day. Id. at 1528. Further, although Dr. Rudansky had indicated that Tretola could lift less than two pounds, the report concluded that this opinion was not supported by any objective findings. Id. at 1531. Rather, SSA concluded that, based on the totality of the evidence, Tretola could perform light work. It thus denied her claim. Id. at 1531.
On December 30, 2010, Tretola appealed the SSA decision to an administrative law judge ("ALJ"). Id. at 1244. On November 23, 2010, the AU, Scott Firestone, approved Tretola's Social Security disability application in a bench decision, finding that, as of April 24, 2009, she had been unable to perform her occupation. Id. at 1444. AU Firestone found that Tretola did not have the ability to perform sedentary work and was severely impaired by fibromyalgia and IBS; specifically, he found that Tretola could not (1) sit for six hours in an eight-hour day, (2) stand/walk for two hours in an eight-hour day, or (3) lift 10 pounds. Id. at 1457. He added that, because Tretola's medical condition was expected to improve, he recommended a continuing disability review to be started in 24 months. Id. at 1458.
As noted (see supra I.A.), under the First Unum policy, if a disabled employee receives a Social Security disability benefit, the monthly disability benefit from First Unum is correspondingly reduced. Pl. 56.1 ¶ 10. On December 6, 2010, Tretola notified First Unum by telephone that her Social Security disability benefits had been approved through the appeals process. AR 1068. The $5, 000 monthly benefit from First Unum to which Tretola was entitled was then reduced by $1, 613.90, the amount of her monthly Social Security disability reduction. Id. at 1152.
D. First Unum's Continuing Evaluation of Tretola and Eventual Termination
After approving Tretola's application for long-term disability benefits, First Unum continued to evaluate Tretola's condition. To do so, First Unum deployed medical consultants, who reviewed, inter alia, medical records provided by Tretola's treating physicians, and undertook independent medical reviews of Tretola. The following recounts First Unum's medical reviews of Tretola, and its eventual decision to terminate Tretola's benefits.
1. Dr. Leverett's August 17, 2010 Medical Review
After Tretola's disability claims were initially approved, Dr. Leverett attempted to engage in telephone conversations with Tretola's rheumatologist, Dr. Cohen, and neurologist, Dr. Rudansky, to better understand Tretola's functional capacity and continue the assessment of Tretola's disability. Id. at 739, 746. Neither doctor responded to Dr. Leverett's requests. Id. at 749, 752.
However, First Unum continued to receive records of Tretola's medical history, including (1) medical records from the Arnold-Chiari Institute, regarding Tretola's syringomyelia, (2) medical records from Dr. Purow, regarding office visits between February 18, 2009 and May 10, 2010,  (3) medical records from Dr. Burns, regarding a May 10, 2010 visit, (4) medical records from Dr. Cohen, regarding Tretola's fibromyalgia, and (5) medical records from Dr. Rudansky, regarding her syringomyelia. By condition, these records reflected:
Fibromyalgia: First Unum received records of Tretola's visits, on February 1, 2010, March 8, 2010, and May 10, 2010, to Dr. Cohen's office for her fibromyalgia condition. Id. at 891-907. Dr. Cohen found that Tretola had "demonstrate[d] widespread fibromyalgia tender points." Id. at 898.
IBS: Dr. Purow, as Tretola's gastroenterologist, provided office visit records on Tretola's IBS condition. After Tretola's initial visit with Dr. Purow on February 18, 2009 visit, Dr. Purow wrote that Tretola was "unable to eat meat or dairy" but was "able to tolerate Taco Bell somehow." Id. at 811. He also noted that Tretola had lost about 14 pounds during the past 18 months. Id. However, by July 2, 2009, Dr. Purow noted that Tretola's IBS was "doing really well." Id. at 806 (emphasis in original). After a May 10, 2010 visit, Dr. Purow stated that Tretola's IBS was "now just diet-controlled, " and that "[s]he overall has been doing really well." Id. at 877. Dr. Burns, Tretola's primary care physician, concurred with Dr. Purow: In a medical record of an office visit on May 10, 2010, Dr. Burns noted that Tretola had reported "her IBS symptoms [had] improved lately." Id. at 886.
Syringomyelia: For Tretola's syringomyelia, the Arnold-Chiari Institute's records provided the most current diagnostic test records First Unum had received pertaining to this condition. On October 24, 2008, Tretola visited the Arnold-Chiari Institute; during that visit, Tretola stated that Dr. Schneider, a neurologist at Long Island Jewish Medical Center, had informed her that her syrinx did not require surgery. Id. at 774. Dr. Amit Shelat, a neurologist at the Arnold-Chiari Institute, advised Tretola to avoid high impact activities, heavy lifting, pushing, pulling, or carrying of objects greater than 10 pounds. Id. at 770. The records also reflected that a magnetic resonance imaging ("MRI") examination was conducted on October 23, 2008, which revealed a "small syrinx in the lower thoracic spinal cord." Id. at 788. The syrinx measured 3 millimeters by 2 millimeters. Id.
On August 16, 2010, Dr. Leverett conducted another medical review of Tretola's updated file, which included the aforementioned medical records. His conclusions, by condition, were:
Fibromyalgia: Dr. Leverett observed that-while Tretola's rheumatologist had recorded that, during a May 10, 2010 visit, Tretola had diffuse body pain and widespread fibromyalgia tender points-it did not appear that Tretola had participated in a comprehensive pain management program to help address her pain symptoms. Id. at 973. He concluded that Tretola appeared "to have a number of diffuse somatic complaints that likely have a psychological component (e.g. depression) which has not been adequately addressed." Id.
IBS: Dr. Leverett noted that Tretola's IBS appeared to be "improved and stable, " as her weight was "relatively stable with noted appearance as well nourished, ' and that her condition "did not rise to a level of impairment." Id.
Syringomyelia: Dr. Leverett found that Tretola's syringomyelia appeared to be a "stable and diminutive" condition "with likely no clinical manifestation or indication for surgical intervention." Id. Dr. Leverett also found that Tretola's syringomyelia "did not rise to a level of impairment." Id.
Because of Tretola's "continued reports of minimal activity, " Dr. Leverett concluded that Tretola did not appear able to "reliably sustain work." Id. at 974. However, Dr. Leverett noted that Tretola had a "good" prognosis ...