Opinion
Case No. 5:05CV2412, Resolving Doc. Nos. 15, 20, 21, 22.
July 20, 2006
OPINION AND ORDER
Plaintiff Kathryn Helmuth and Defendant Hartford Life Accident Insurance Company both move for judgment on the administrative record in this ERISA case. [Docs. 21, 22]. The plaintiff also moves to strike surveillance video footage from the administrative record. [Doc. 20]. The dispute arises out of Hartford's denial of disability benefits to the plaintiff. After reviewing the parties' briefs and the administrative record, the Court GRANTS IN PART the plaintiff's motion for judgment on the administrative record, and DENIES the defendant's motion for judgment. The Court also DENIES the plaintiff's motion to strike the surveillance footage.
The plaintiff's "second amended dispositive motion for judgment" [Doc. 22] supersedes her original "dispositive motion for judgment." [Doc. 15].
I. Background
A. The Plan
Plaintiff Helmuth worked for First Merit Corporation in various banking capacities since the early 1980s. Helmuth was covered by First Merit's long-term disability insurance plan (the "Plan"). Defendant Hartford administered the Plan. The Plan states that it is governed by ERISA and vests Hartford with "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the [Plan]." [POL at 18].
The parties electronically filed a copy of the Plan and the administrative record. [Doc. 19].
The Plan provides that an employee will a monthly long-term disability benefit if:
1. you become disabled while insured under this plan;
2. you are Disabled throughout the Elimination Period;
3. you remain Disabled throughout the Elimination Period;
4. you are, and have been during the Elimination Period, under the Regular Care of a Physician; and
5. you submit proof of loss satisfactory to [Hartford].
[POL at 18]. An employee is "Disabled" when bodily injury, mental illness, sickness, pregnancy or substance abuse prevents the employee "from performing one or more of the Essential Duties of [her] Occupation" for a period of 24 months. Id. After the 24 month period, the condition must also prevent the employee from performing one or more essential duties of any occupation. Id.
The Plan defines "Essential Duties" as a duty that is "substantial, not incidental," "fundamental or inherent to the occupation," and "can not be reasonably omitted or changed." Id. at 19. The Plan further states that the employee's "Occupation" is the employee's position "as it is recognized in the general workplace . . . [and] not the specific job [the employee is] performing for a specific employer or at a specific workplace." Id. at 21.
B. The Illness
The plaintiff's last day in the office was November 10, 2000. [A.R. at 319]. At that time, she was an Assistant Vice President of Business Banking. Id. at 479. Her employer noted that she stopped working due to "increased fatigue and weakness." Id. at 319. Dr. Brian Jones examined the plaintiff on November 15, 2000. Dr. Jones noted the in Summer 2000, the plaintiff began to develop "a fatigue-like syndrome with some upper respiratory complaints, such as particularly sore throat, fatigue, swollen lymph nodes in the neck and particularly in the right axillary area." Id. at 631. A lymph node biopsy revealed no malignancies. Id. at 629.
Near March 26, 2001, the plaintiff filed a claim for disability benefits under the Plan. [A.R. at 864-65]. At that time, Dr. Kelli Sabin, the plaintiff's primary care physician, diagnosed the plaintiff with "Chronic Fatigue Immunological Disease Syndrome." Id. at 864. The plaintiff had the following symptoms: fatigue, weakness, headaches, and myalgia. Dr. Sabin opined that the plaintiff was unable to sustain a standard 40-hour workweek in her position. Dr. Sabin also found that the plaintiff suffered various cognitive problems, including being markedly limited in following, remembering, and understanding job instruction and in maintaining her attention. Id. at 868. Defendant Hartford approved long-term disability benefits on August 23, 2001. Id. at 42. The plaintiff received a gross monthly disability benefit of $3312.40. Id. at 185.
From the time the plaintiff left work, the following physicians treated her: (1) Dr. Sabin (for treatment of headaches, fatigue, and sinus symptoms), (2) Dr. Jones (for treatment of fatigue symptoms), (3) rheumatologist Dr. Leonard Calabrese (for treatment of fatigue symptoms), (4) neurologist Dr. Todd Rozen (for treatment of headaches), (5) endocrinologist Dr. Mahmood Moosa (for treatment of thyroid nodule), and (6) endocrinologist Dr. Christopher Sullivan (for treatment of thyroid conditions).
The physicians made various findings from November 2000 through August 2004:
• Nov. 15, 2000: Dr. Jones noted fatigue, sore throat, swollen lymph nodes. [A.R. at 631].
• Dec. 4, 2000: Dr. Sabin noted benign lymph node biopsy, swelling in the lymph nodes, and that the plaintiff was "doing exceptionally well." Id. at 633.
• Dec. 8, 2000: The plaintiff displayed abnormal levels of vitamin B-12 and folate. Id. at 340.
• Feb. 12, 2001: Dr. Calabrese noted that the plaintiff's daughter suffered serious health issues, causing the plaintiff stress which complicated her recovery. Calabrese further noted that he was "95 percent confident" that the plaintiff suffered from chronic fatigue syndrome ("CFS"). Id. at 623.
• Mar. 26, 2001: Dr. Sabin noted the plaintiff suffered headaches and fatigue that "comes goes." Id. at 403.
• April 4, 2001: The plaintiff displayed thyroid stimulating hormone ("TSH") levels above the normal range. Id. at 338.
• Apr. 30, 2001: Dr. Sabin noted green nasal drip, congestion, and cough, and diagnosed sinusitis. Id. at 405.
• May 14, 2001: Dr. Sabin noted improved sinusitis but lingering fatigue and difficulty driving. Id. at 406.
• May 14, 2001: The plaintiff had an abnormally high TSH level. Id. at 363.
• July 17, 2001: The plaintiff had an abnormally high TSH level. Id. at 419.
• Sept. 18, 2001: Dr. Rozen noted headaches every three days and proscribed Zanaflex. Id. at 259.
• Dec. 27, 2001: Dr. Sabin noted that plaintiff felt "100x better." Id. at 716.
• Jan. 29, 2002: Dr. Sabin noted green nasal drip, cough, chills, and diagnosed sinusitis. Id. at 415.
• Feb. 5, 2002: Dr. Calabrese noted that the plaintiff expressed fatigue and symptoms of CFS. Id. at 380.
• Feb. 25, 2002: The plaintiff underwent a thyroid scan, revealing low radioiodine uptakes and conditions consistent with thyroid nodules. Id. at 648.
• Feb. 28, 2002: Dr. Sabin noted increased restlessness and diagnosed obsessive compulsive disorder and decreased thyroid levels. Id. at 414.
• Mar. 15, 2002: Dr. Sabin completed a Physical Capacities Evaluation Form for the plaintiff. Sabin opined that the plaintiff could sit for eight hours per day, and could sit, stand, walk, and drive less than an hour at a time. Id. at 355.
• Mar. 26, 2002: Dr. Moosa evaluated thyroid nodule and diagnosed hypothyroidism. Moosa prescribed Synthroid. Id. at 645.
• Apr. 25, 2002: Dr. Moosa found acceptable thyroid levels. Id. at 644.
• May 14, 2002: The plaintiff had an abnormally high TSH level. Id. at 425.
• May 30, 2002: Dr. Sabin noted that plaintiff "learned to pace" herself and was "feeling good." Id. at 710.
• July 9, 2002: Dr. Rozen treated plaintiff for migraines and noted that the plaintiff was "doing quite well" and had stopped taking Zanaflex. Rozen noted that the plaintiff suffered migraines every two-to-three weeks and successfully remedied them with Excedrin. Id. at 378.
• Nov. 14, 2002: Dr. Calabrese reconfirmed his diagnosis of CFS and stated that the plaintiff had "shown no evidence of improvement." Calabrese ranked the plaintiff in the lower 20 percent on the serial disability scales, indicating an "inability to be gainfully employed." Id. at 482.
• Nov. 25, 2002: Dr. Sabin wrote that in her opinion, the plaintiff "has been and continues to be unable to engage in any type of full time work activity since November 2000." Sabin noted decreased concentration, physical malaise and fatigue. Id. at 642.
• Dec. 16, 2002: Dr. Calabrese noted that the plaintiff was "holding her own" and exercised every day. Calabrese also noted that the headaches were less frequent and that the plaintiff "knows how to deal with them." Calabrese concluded that the plaintiff was in a "stable condition." Id. at 725.
• Apr. 7, 2003: Dr. Sullivan evaluated the plaintiff's thyroid gland and proscribed Synthroid. Id. at 638.
• Apr. 12, 2003: Dr. Sabin completed a Physical Capacities Evaluation Form for the defendant. Sabin opined that the plaintiff could sit for eight hours per day, and could sit, stand, walk, and drive less than an hour at a time. Id. at 503.
• Apr. 25, 2003: A bone density study revealed osteopenia in the plaintiff's neck, indicating a moderate risk of fracture. Id. at 680.
• Nov. 26, 2003: Dr. Calabrese wrote Hartford, attaching his note from December 16, 2002. Calabrese stated that on that day she displayed "total disability," but that he had not examined the plaintiff since then. Id. at 732.
• Dec. 3, 2003: Dr. Sabin completed a Physical Capacities Evaluation Form for the plaintiff. Sabin opined that the plaintiff could sit for eight hours per day, and could sit, stand, walk, and drive less than an hour at a time. Id. at 522.
• Mar. 23, 2004: Dr. Sabin completed a Physical Capacities Evaluation Form for the plaintiff. Sabin opined that the plaintiff could sit for eight hours per day, and could sit, stand, walk, and drive less than an hour at a time. Id. at 579.
• Aug. 2, 2004: Dr. Sabin completed a Physical Capacities Evaluation Form for the plaintiff. Sabin opined that the plaintiff could sit for six hours per day, and could sit, stand, walk, and drive less than an hour at a time. Id. at 567.C. The Surveillance
Hartford retained Dempsey Investigations, Inc. to surveil the plaintiff. On March 21, 2004, an investigator observed the plaintiff away from her house for nearly two-and-a-half hours. Id. at 741. The next day, the investigator observed the plaintiff away from her house for nearly an hour. Id. The investigator saw and videotaped the plaintiff walking, standing, bending, reaching, lifting, carrying bags and driving. The investigator observed no sign of physical or mental distress.
Surveillance continued on April 30, May 1, and May 2, 2004. The investigator observed the plaintiff away from her home for five hours on May 1 and two-and-a-half hours on May 2. Id. at 749. The investigator saw the plaintiff walking her dog, checking her mail, attending church, and going grocery shopping. The investigator reported no signs of physical discomfort or weakness.
Hartford sent Dr. Sabin a letter enclosing a copy of the video surveillance on August 16, 2004. Id. at 792. Hartford asked Sabin to review the videotape and to sign and return the letter if she agreed that the plaintiff "has the capacity to perform a full time light occupation." Dr. Sabin signed the letter and returned it to Hartford.
On August 16, 2004, Hartford sent a similar letter, with an enclosed surveillance videotape, to Dr. Calabrese. Id. at 785. Dr. Calabrese responded to Hartford, stating his refusal to watch the footage, and adding:
I am always very uncomfortable with these types of analyses. My working diagnosis of chronic fatigue syndrome with psychologic factors affecting the physical condition is based on my clinical assessment. The signs and symptoms of chronic fatigue syndrome are by their very nature subjective and thus I can only believe what the patient tells me.Id. at 789. Dr. Calabrese concluded that he was unwilling to comment on the medical or legal significance of the footage.
Hartford representatives also reviewed the video footage near October 2004. Id. at 59.
D. The Reviews 1. Dr. Carl Huff
At Hartford's request, Dr. Carl Huff reviewed the plaintiff's medical records and surveillance footage in October 2004. Dr. Huff also discussed the plaintiff's case with Dr. Calabrese and Dr. Sabin, but did not examine the plaintiff. Dr. Huff is board certified in orthopedic surgery, preventative medicine, and independent medical examinations.
In conducting his review, Dr. Huff applied the Center for Disease Control's criteria for diagnosing CFS:
A. Fatigue
• Clinically evaluated
• Unexplained
• Persistent or relapsing
• Of new or definite onset (has not been life long)
• Not the result of ongoing exertion
• Not substantially alleviated by rest
• Results in substantial reduction in previous level of occupational, educational, or social activities
B. Concurrent occurrence of four or more of the following symptoms all of which must have persisted or recurred during six or more consecutive months of illness and must not have predated the fatigue:
• Self-reported impairment in short term memory or concentration severe enough to cause substantial reduction in previous level of occupation, educational, social or personal activities
• Sore throat
• Tender cervical or axillary lymph nodes
• Muscle pain
• Multi-joint pain without joint swelling or redness
• Headaches of a new type pattern in severity
• Un-refreshing sleep
• Post exertional malaise lasting more than 24 hours
[A.R. at 805-6]. Dr. Huff noted that CFS and fibromyalgia had similar symptoms, and that neither syndrome could be confirmed with reliable objective tests. Id. at 806. But Huff also noted that in the absence of objective testing of symptoms and psychometric testing, there can be no basis for a finding of disability. Id. at 807.
Huff wrote that there was no objective psychometric testing of the plaintiff's memory and concentration. Id. at 808. Although the plaintiff complained of sore throat, the condition was not persistent and associated with sinusitis. Id. The sore throat also improved when treated with antibiotics. While the plaintiff complained of muscle pain, the fact that the plaintiff never requested or received pain management indicated that the pain lacked sufficient intensity to qualify as a CFS symptom. Id. Similarly, the plaintiff never received treatment for multi-joint pain, and there was little substantiation for such pain in her records. Id. at 808, 809. The plaintiff's reported pain while sitting as opposed to standing was also inconsistent with the CFS diagnosis. Id. at 809.
The plaintiff's headaches did not support a diagnosis of CFS, as the plaintiff suffered from headaches since a 1987 car accident. Further, the plaintiff successfully treated her headaches with Excedrin. While the plaintiff reported waking up to relieve stiffness in her back, there was no indication that her sleep was not refreshing. Id. at 810. While the plaintiff complained of post-exertional malaise, the record provided "no objective determination of her functional capacity or exercise tolerance." Id. Dr. Huff also noted that while Dr. Calabrese diagnosed the plaintiff with depression, she was not under the care of a psychiatrist, and did not take any psychiatric medications. The plaintiff's thyroid condition responded favorably to her Synthroid treatment.
During Dr. Huff's review, Dr. Calabrese told Huff that the plaintiff was "capable of sedentary work," although she may have "occasional bad days." Id. at 811.
Dr. Huff concluded that the plaintiff did not qualify for the diagnosis of CFS, and that there was no finding of disability. [A.R. at 812]. Dr. Huff also stated that the plaintiff's record contained many inconsistencies and suggested that she exaggerated her symptoms. Id. at 813.
2. Dr. Maureen Smith
The defendant also asked Dr. Maureen Smith, a psychiatrist, to review the plaintiff's file. In so doing, Dr. Smith consulted with Dr. Sabin and Dr. Calabrese. Dr. Sabin "assured [Dr. Smith] that in her opinion, Ms. Helmuth is not depressed." Id. at 768. Dr. Sabin also said the depression symptoms were "mild and they were not of such severity that they would be likely to impair her functioning in the work place if she were motivated to work." Id. at 769. Significantly, Dr. Sabin told Dr. Smith that the surveillance footage of the plaintiff "is not consistent with the level of functionality that the claimant presents and reports when she comes for office visits." Id. at 769.
Dr. Calabrese told Dr. Smith that the plaintiff's "symptoms of depression were at most mild and never significant enough to impair her functioning on their own." Id. at 772. Dr. Calabrese said the plaintiff's symptoms were consistent with "mild reactive depression." Id.
After reviewing the file and talking with the plaintiff's physicians, Dr. Smith concluded that the record did not support a finding that the plaintiff suffered from depression sever enough to impair her functioning in the workplace.
3. Lisa Housley
Hartford employee Lisa Housley conducted an employment analysis of the plaintiff in October 2004. Ms. Housley works for the defendant as a rehabilitation clinical case worker. Housley consulted Department of Labor data to identify occupations to which the plaintiff's skills, training or education could transfer. Id. at 186. Housley identified 24 "closest level" occupations, and then filtered her search to focus on sedentary occupations. Ms. Housley identified six such positions: credit analyst, manager of credit and collection, commercial loan correction officer, loan review analyst, mortgage loan underwriter, and loan officer. Id. at 185. The identified positions each paid more than the plaintiff's monthly disability benefit.
E. The Denial
On November 15, 2004, Defendant Hartford informed the plaintiff of its decision that she was not eligible for disability benefits. Id. at 556. The defendant based its decision on the findings of Dr. Huff and Dr. Smith, and on the surveillance video. Hartford considered the plaintiff capable of "perform[ing] full time sedentary work of lifting up to 10 pounds with the ability to walk and stand intermittently." Id. at 560-61. The defendant's letter advised the plaintiff of her rights to appeal the determination.
On April 14, 2005, an Administrative Law Judge granted the plaintiff's application for Social Security benefits, finding that the plaintiff's mental and physical symptoms rendered her unable to maintain a 40-hour workweek. Id. at 198.
The plaintiff appealed Hartford's finding on May 5, 2005. In support, she submitted: (1) a copy of the Social Security decision; (2) a residual functional capacities questionnaire from Dr. Sabin, dated January 28, 2005; (3) a statement of treatment from John Fiocca, D.D.S.; and (4) a June 29, 2005 affidavit from the plaintiff. Id. at 140.
On the new functional capacities questionnaire, Dr. Sabin wrote that the plaintiff could sit for one hour per day, but could not stand, walk, or work. Id. at 157. Dr. Sabin also limited the plaintiff to lifting ten pounds and occasionally bending, stooping, crouching, and kneeling. Id. at 158. Dr. Sabin described the plaintiff's pain as "severe," and preventing any activity that caused the pain. Id. at 159. Finally, Dr. Sabin wrote that the plaintiff's condition would cause more than three work absences per month. Id.
Hartford commissioned another psychiatric review of the plaintiff's file. Dr. Stuart Schipko, a psychiatrist, performed the review. Dr. Schipko noted that the plaintiff still did not take psychiatric medications. Dr. Sabin informed Dr. Schipko that she did not believe that the plaintiff was depressed. Dr. Schipko concluded that the plaintiff did not have psychiatric symptoms that prevented her from working. Id. at 152.
Hartford also referred the plaintiff's file to Dr. Jerome Siegel for another medical review. Dr. Siegel is board-certified in internal medicine. Dr. Siegel spoke with Dr. Sabin, who stated that the plaintiff's subjective complaints "far outweighed" any objective signs of disability. Id. at 123. Although Dr. Sabin stood by the diagnosis of CFS, she agreed that the plaintiff should be physically capable of returning to sedentary work. Id. at 125.
Defendant Hartford informed the plaintiff that it denied her appeal by letter dated September 14, 2005. Id. at 132. In the letter, Hartford Appeal Specialist Chris Davis wrote: "the weight of the evidence available for review does not support that [the plaintiff] is prevented from performing the essential duties of any occupation for which she is qualified by education, training, or experience." Id. at 137. Hartford based its findings on Dr. Siegel and Dr. Schipko's reviews.
The plaintiff sued Hartford on October 13, 2005. [Doc. 1].
II. Legal Standard
Because the Plan documents gave Hartford discretion to construe and interpret the Plan, the Court reviews Hartford's determination under the arbitrary and capricious standard. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 (1989); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir. 1991). The arbitrary and capricious standard is the least demanding form of judicial review of an administrative decision. Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000). A decision regarding eligibility for benefits is not arbitrary and capricious if the decision is "rational in light of the plan's provisions." Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996). Stated differently, "when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious." Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal quotations and citation omitted); see also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (en banc). In applying the arbitrary and capricious standard in ERISA actions, a court is limited to reviewing the evidence contained within the administrative record. Wilkins, 150 F.3d at 615.
Courts within the Sixth Circuit utilize the arbitrary and capricious standard even when a conflict of interest exists. Davis, 887 F.2d at 694 (conflict of interest significant "only to the extent that any possible conflict of interest should be taken into account as a factor in determining whether the Committee's decision was arbitrary and capricious"). Courts will, however, weigh a potential conflict of interest as a factor in determining whether the decision to deny benefits was arbitrary and capricious. Firestone, 489 U.S. at 115; Davis, 887 F.2d at 694.
III. Analysis
A. Motions For Judgment On The Administrative Record
The plaintiff makes one claim: improper denial of disability benefits in violation of 29 U.S.C. § 1132(a)(1)(B). The Court finds that Hartford's decision denying Helmuth's claim for continued long-term disability benefits was arbitrary and capricious because it applied an improper standard of review.
The plaintiff argues that the denial was arbitrary and capricious because the defendant evaluated the plaintiff's claim under an outdated standard of review. In its November 15, 2004 denial letter, Hartford wrote that to qualify as disabled, the plaintiff must be "prevented from performing the essential duties of any occupation for which you are qualified by education, training, or experience." [A.R. at 179] (emphasis added). In fact, the applicable policy states that the plaintiff is disabled if she is incapable of "performing one or more of the Essential Duties of any Occupation." [POL at 18] (emphasis added).
Remand is necessary where an administrator misconstrues a plan's terms. See Smith v. Ameritech Emp. Benefits. Comm., No. 2000-CV-60464, 2001 U.S. Dist. LEXIS 25008, at *18-19 (E.D. Mich. July 30, 2001) (remand warranted where administrator misconstrued plan's disability standard). See also University Hosps. v. Emerson Elec. Co., 202 F.3d 839, 849, 852 (6th Cir. 2000) (remand warranted where administrator misconstrued plan); Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 398 (5th Cir. 1998) ("it is not the court's function ab initio to apply the correct standard . . . that function, under the Plan, is reserved to the Plan administrator") (citation omitted); Saffle v. Sierra Pacific Power Co., 85 F.3d 455, 456 (9th Cir. 1996) (holding that where administrator misconstrues plan provision "the court should not decide itself whether benefits should be awarded but rather should remand to the administrator for it to make the decision under the plan, properly construed").
The Court remands the claim to the administrator for review under the proper standard.
B. Motion To Strike Surveillance Footage
The plaintiff moves to strike the surveillance footage from the administrative record. The defendant mistakenly failed to include the video footage when it originally filed the administrative record. Hartford and the various physicians clearly considered the footage in evaluating the plaintiff's claim. The video is a proper part of the administrative record. The Court denies the motion to strike.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART the plaintiff's motion for judgment on the administrative record [Docs. 15, 22], and DENIES the defendant's motion for judgment on the administrative record without prejudice. [Doc. 21]. The Court REMANDS the claim to the administrator for reconsideration under the proper standard of review.
The Court also DENIES the plaintiff's motion to strike. [Doc. 20].
IT IS SO ORDERED.