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Asberry v. Hartford Life and Accident Insurance Co.

United States District Court, S.D. New York

February 27, 2015



JESSE M. FURMAN, District Judge.

Plaintiff Syderia A. Asberry brings this action against Defendants Hartford Accident Insurance Company, the Group Long Term Disability Plan for Employees of JP Morgan Chase Bank, and JP Morgan Chase Bank (together, "Hartford"), appealing Hartford's decision to terminate her disability benefits pursuant to Section 502(a)(1)(b) of the Employee Retirement and Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(b). The parties' crossmotions for summary judgment are now before the Court. For the reasons that follow, Hartford's motion for summary judgment is GRANTED, Asberry's motion is DENIED, and the Complaint is dismissed.


The following facts, taken from the Administrative Record, are viewed in the light most favorable to the non-movant. See, e.g., Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d Cir. 2010); Griffin v. New York State Nurses Ass'n Pension Plan & Benefits Fund, 757 F.Supp.2d 199, 202 (E.D.N.Y. 2010). On March 15, 2006, Plaintiff, then an employee with JPMorgan Chase Bank, underwent thoracic spinal fusion surgery to treat her scoliosis. (Administrative Record ("AR") 57, 1003). The surgery left her with significant complications, including chronic back pain. ( Id. at 681-82). Shortly after the surgery, Hartford, which administers JP Morgan's benefits plan, approved Asberry for short-term disability benefits through May 2006 and then for long-term benefits through September 2012. (Pl.'s Resp. Defs.' Rule 56.1 Statement (Docket No. 34) ("Defs.' SOF") ¶¶ 14-16). Hartford concluded that Asberry was unable to perform "any occupation" for which she was qualified. (AR 89).

In August 2011, Plaintiff made a statement that indicated to Hartford that she was able to garden and that she served as the president of her local community association - activities that Hartford considered potentially incompatible with an "any occupation" disability. (Defs.' SOF ¶ 17; AR 137-38, 736). Her file was referred to Hartford's special investigations unit, which engaged a third-party vendor to gather surveillance. (Defs.' SOF ¶¶ 22-23; AR 137). The vendor surveilled Asberry over a two-day period in October 2011 (Defs.' SOF ¶ 24), during which it reported observing Asberry carrying grocery bags, cleaning up outside her apartment, walking her dog, and attending a community meeting. (AR 426-28).

Following the surveillance, Hartford sent a request for clarification of Asberry's functional abilities to her treating physician, Dr. Simonetta Sambataro. ( Id. at 139-40). Over the course of the next several months, Hartford gathered information from Asberry's various physicians, including Dr. Sambataro, and had its special investigations unit conduct an in-person interview of Asberry. (Defs.' SOF ¶¶ 30-35, 39-43, 46). In June 2012, Hartford sought an independent medical examination ("IME") of Asberry. (AR 499). At Hartford's request, Dr. Robert DePorto reviewed various medical records compiled by Hartford and conducted a physical examination of Asberry on June 27, 2012. (Defs.' SOF ¶¶ 51-52; AR 501-04). Based on his review of her records, including the surveillance footage, and his independent examination, Dr. DePorto concluded that Asberry was capable of "working in a sedentary capacity" and provided parameters for that definition, including sitting no more than six hours a day, standing no more than two hours a day, lifting no more than ten pounds at a time, and occasionally carrying small items such as office files. (Defs.' SOF ¶ 53; AR 683-84). Hartford then commissioned an employability analysis report that identified two occupations - Sales Manager and Merchandise Manager - that are consistent with Plaintiff's physical limitations, educational background, and salary requirements. (Defs.' SOF ¶¶ 57-59; AR 386-99).

In September 2012, a Hartford investigative specialist reviewed Asberry's file, including the surveillance report and the submissions by Drs. DePorto and Sambataro, and concluded that she did not qualify for long-term disability benefits. (AR 89-91). Accordingly, Hartford notified Asberry that it was terminating her benefits, effective September 12, 2012, and provided a summary of its investigation. ( Id. at 212-18; Defs.' SOF ¶ 63). In October 2012, Asberry notified Hartford of her intention to appeal the decision; she then filed her appeal in May 2013. (AR 442-51, 647). Asberry claimed that Hartford's termination was improper for several reasons, including that Hartford improperly accepted Dr. DePorto's opinion over that of Dr. Sambataro ( id. at 445-47) and that the surveillance footage was not a complete picture of Asberry's day ( id. at 444-45).

In July 2013, Hartford assigned an appeals specialist to review Asberry's case. (Defs.' SOF ¶ 86). The specialist arranged for Dr. Steven Lobel to conduct a peer review of Asberry's files. (AR 69-70, 76). The specialist asked Dr. Lobel to address three issues: (1) the appropriate restrictions and level of Asberry's functionality based on her medical records as of September 14, 2012, using the work categories provided by the Department of Labor; (2) whether Asberry's condition had changed since September 14, 2012; and (3) whether Asberry should be subject to any restrictions based on her prescription medications as of September 14, 2012. ( Id. at 366). Dr. Lobel reviewed Asberry's file, including the IME conducted by Dr. DePorto, prior medical reports, and the October 2011 video surveillance. ( Id. at 352-54). On August 6, 2013, he also faxed questions to Dr. Sambataro regarding the basis for her diagnosis and the need for the medications then prescribed for Asberry. ( Id. at 324, 331-32, 354).

Dr. Lobel submitted his report on August, 14, 2013, not yet having heard back from Dr. Sambataro. ( Id. at 354-55). Based on the medical file and his observations of the surveillance video, he concluded that (1) Asberry was capable of "light level occupation" subject to restrictions similar to those imposed by Dr. DePorto; (2) her condition had not worsened since September 2012 ( i.e., in the months after Hartford terminated her benefits); and (3) she would not have any restrictions or limitations based on the medications she was taking as of the time Hartford terminated her benefits. ( Id. at 355). The very next day, August 15, 2013, Dr. Sambataro faxed a response to Dr. Lobel's earlier questions, in which she pointed to Asberry's muscle spasms, muscular atrophy, and chronic pain as the basis for her determination that Asberry could not undertake any employment. ( Id. at 324, 326). On August 19, 2013, Dr. Lobel submitted an addendum to his August 14th report, summarizing Dr. Sambataro's response and concluding that, while Asberry suffers from pain resulting from an "extensively altered anatomy due to [the] surgery, " and has some physical limitations, her condition did not preclude full-time employment. ( Id. at 357).

On August 28, 2014, Debra McGee, one of Hartford's appeals specialists, performed a final review of Asberry's case. ( Id. at 67-68). Her review included the reports from Drs. DePorto and Lobel, which she credited over Dr. Sambataro's assessment. ( Id. at 68). McGee also noted that the employability analysis report had identified multiple positions that Asberry could pursue given the restrictions identified by Dr. DePorto. ( Id. ). Finally, she explained that there was no inconsistency in the fact that the Social Security Administration ("SSA") still considered Asberry eligible for disability benefits because the SSA used a different set of eligibility criteria than those governing Asberry's plan and the SSA was not permitted to credit the opinions of a third-party physician over those of an applicant's treating physician, as she had. ( Id. ). Accordingly, Hartford affirmed the original denial of benefits. ( Id. ). This appeal followed shortly thereafter.


A. Summary Judgment Standard

Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute over an issue of material fact qualifies as genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002).

In ruling on a motion for summary judgment, all evidence must be viewed "in the light most favorable to the non-moving party, " Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). When, as in this case, both sides move for summary judgment, the district court is "required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party." Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011). Thus, "neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). To defeat a motion for summary judgment, the non-moving party must advance more than a "scintilla of evidence, " Anderson, 477 U.S. at 252, and demonstrate more than "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co., Ltd. ...

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