Opinion
No. SA-05-CA-0482-RF.
March 23, 2006
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On March 1, 2006, a bench trial was conducted in the above-styled and numbered cause. Both attorneys are to be commended for their outstanding advocacy for their respective clients both in their written briefs and at the bench trial. After considering the weight and credibility of all the evidence and the parties' respective arguments, the Court finds in favor of the plaintiff, Jane Liebenguth. The Court hereby enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
Plaintiff Jane Liebenguth brought this civil action for disability benefits under 29 U.S.C.A. 1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff Jane Liebenguth was employed as an IT Lead Systems Analyst by USAA, where she worked since 1984. Plaintiff was first diagnosed with fibromyalgia and chronic fatigue syndrome in 1997. She continued to work and manage her illness with medication and physical therapy over the next six years.
By virtue of her employment with USAA, Plaintiff was eligible to receive medical coverage under the long-term disability ("LTD") group benefit plan. The LTD benefit plan is designed to protect a group of USAA employees, including Plaintiff. The LTD plan is an ERISA plan.
Plaintiff began her employment with USAA on May 7, 1984. At the time she became disabled, Plaintiff was in the position of an IT Lead Systems Analyst. A USAA Job Descriptions report describes the purpose of an IT Lead Systems Analyst's job as "fulfills leadership, mentorship and subject matter expert roles in the life cycle of acquiring/developing, implementing, and maintaining information technology solutions. Consults with business partners and provides technology recommendations. Provides inputs to operational plans. Leads teams." The job duties of an IT Lead Systems Analyst include: "(1) develop[ing] and present[ing] I/T estimates which form the basis for Master Program and Project List planning and the ITCO Operational Plans; (2) provid[ing] subject matter expertise in evaluating technical matters associated with products and services; (3) lead[ing] in analyzing, designing, developing, testing, debugging, and implementing new systems or modifications to existing systems; (4) monitor[ing] trends in system discrepancies and failures; (5) apply[ing] appropriate financial principles in the management of projects, products, components, and unit budgets; (6) lead[ing] teams; (7) maintain[ing] an awareness of technology advancements through self-study, attending technology courses, forums, seminars, and conferences, exchanging information with peers and any such activities that enhance learning; and (8) sett[ing] a positive work example through personal work habits."
J. Ex. 253, Public Reports USAA Job Descriptions.
J. Ex. 253-54, Public Reports USAA Job Descriptions.
In 1997, Plaintiff began experiencing constant pain and chronic exhaustion. She started seeing a rheumatologist, Dr. Gerald Rosenberg, who diagnosed her with fibromyalgia and chronic fatigue syndrome. Dr. Rosenberg treated her fibromyalgia and chronic fatigue syndrome with various medications. By July 15, 2001, Plaintiff was taking the follow medications: Duragesic patch, 50 mg every 72 hours, Ritalin twice a day, Premarin, Celebrex, Claritin, Zovirax, Zanaflex, Synthroid, Elavil, Serzone, Klonopin, lidoderm patch, Midrin, Deconsol, Tessalon, Perles, Phernergan, Elocon cream, and Nasonex. In July 2001, Dr. Rosenberg diagnosed Plaintiff with severe fibromyalgia, severe chronic fatigue syndrome, depression, and GERD. Dr. Rosenberg noted that Plaintiff was having a lot of trouble functioning at work due to pain and fatigue. Dr. Rosenberg also observed that Plaintiff's pain and fatigue were aggravated by prolonged sitting and that she relied heavily on her medications to get through the day.
In March 2002, Plaintiff reported to Dr. Rosenberg that she continued to have pain, especially in her neck and back, as well as weakness and fatigue. Dr. Rosenberg noted that these symptoms were aggravated by all physical activity and stress. In June, September, and December 2002, Plaintiff continued to complain of severe, sharp, aching daily constant pain long-term.
In April 2003, Dr. Rosenberg reported that Plaintiff continued to struggle with pain and fatigue, both of which were aggravated by prolonged sitting. Plaintiff advised Dr. Rosenberg that she was now experiencing 2 hours of stiffness each morning, and that the Duragesic patch was wearing off after only 48 hours instead of 72 hours. Dr. Rosenberg changed her prescription to allow Plaintiff to use a new Duragesic patch every 48 hours.
In August 2003, Plaintiff complained of generalized weakness due to pain. Dr. Rosenberg noted that Plaintiff requires very strong medications to allow her to get through the day. Based on Plaintiff's continued complaints of daily exhaustion and fatigue, Dr. Rosenberg advised that she may need to consider total disability if she is unable to work due to the pain and fatigue.
Plaintiff stopped working in October 2003. At Liberty Life's request, Dr. Rosenberg completed an Attending Physician's Statement. Dr. Rosenberg completed this form on September 15, 2003. Dr. Rosenberg indicated that in his opinion Plaintiff had a Class 5 impairment, which meant she had severe limitation of functional capacity and is incapable of minimum activity. After reviewing Plaintiff's job requirements, Dr. Rosenberg's statement, and the clinical documentation on file, Liberty decided to approve STD benefits from September 13-October 31, 2003.
Plaintiff completed the disability claim forms on October 1, 2003. Plaintiff supplemented the disability claim forms with a two page letter dated October 6, 2003, which she sent to Liberty Claims Personnel, Gail DiGrazia and Barbara Odom. Plaintiff's letter included the following description of her condition:
Exhaustion and pain from chronic fatigue and fibromyalgia have increased too much to work. The pain from fibromyalgia and the chronic fatigue have continued to increase to the point where they make work impossible. I am constantly exhausted. Each day I struggle to get up in the morning and go anywhere, much less arrive at work when expected. Each night I come home so exhausted I collapse on the sofa or bed. I struggle constantly not to fall asleep on the road from exhaustion driving to and from work. Sleep is not restorative. I have almost no social life. I'm too tired in the evenings to go anywhere and spend most of my weekend resting and sleeping. I haven't taken a vacation in years, because I can't fly or drive for long periods without increasing the pain to an excruciating level . . . I don't have the energy to pursue hobbies or outside activities such as volunteer work.
J. Ex. 317.
Liberty Life requested that Plaintiff fill out several more forms. Additionally, Liberty Life wrote to Dr. Rosenberg seeking clarification about what had changed in Plaintiff's condition to justify a finding of total disability when her condition appeared to be long-standing and chronic in nature, but still permitted her to work. Dr. Rosenberg's narratives, dated September 24, 2003 and November 5, 2003, described Plaintiff's progressive decline over the years and recommended that she be placed on long-term disability. Liberty Life also contacted Neuromuscular Associates of San Antonio and requested that they fill out a Functional Capacities Form. Liberty Life received the Functional Capacity Form and records from Neuromuscular Associates.
On December 12, 2003, Liberty Life asked Dr. Rosenberg to comment on the Functional Capacities Form completed my Neuromuscular Associates. Dr. Rosenberg did not respond until January 2, 2004. After reviewing the information on file, Liberty Life sent Plaintiff an adverse benefit determination letter dated December 23, 2003. The letter explained that Liberty Life determined that Plaintiff's STD benefits should be terminated as of October 31, 2003.
On January 23, 2004, Plaintiff appealed the adverse benefit determination. Plaintiff's appeal letter contained the following description of her condition:
My back, neck, hips, legs, arms, and hands are in extreme pain after only 20 minutes of working at my desk . . . [u]sing a computer, holding and moving the mouse and keying exasperate the pain immensely . . . I sleep only four hours a night, always awakening in pain . . . [s]ometimes the constant muscle spasms cause my hands to be curled in tight fists when I awaken. Trying to straighten out my hands at those times is so painful I cannot keep from crying out . . . [t]he lack of sleep makes it difficult to drive, think, concentrate, and function mentally and physically throughout the day . . . I've fallen asleep driving to and from work, which caused one accident and other near misses endangering myself and others . . . I take large amounts of medications. Most of these medications have side effects such as making me even more sleepy and tired, constipated, headachy, mentally dull and confused.
J. Ex. 278.
Liberty Life assigned Plaintiff's appeal to Dawn-Elynn Tillenghast. Dr. Rosenberg submitted another narrative, dated January 25, 2004, reiterating his opinion that Plaintiff remain disabled. Ms. Tillenghast requested Dr. Gale Brown, a medical consultant, review Plaintiff's file. Dr. Brown's February 23, 2004 report stated that there was no obvious medical explanation for Plaintiff's symptoms other than fibromyalgia and chronic fatigue syndrome. Dr. Brown further stated that she could not refute Dr. Rosenberg's opinion regarding work capacity without a functional assessment.
After reviewing the medical documentation submitted and Dr. Brown's report, Ms. Tillenghast decided to reverse the adverse benefit determination. Ms. Tillenghast recommended that the STD claim be re-opened and that STD benefits be extended through the present time, which was February 24, 2004. In her report, Ms. Tillenghast suggested that the case manager request updated medical from all treating physicians. She further noted that a functional capacity evaluation was not appropriate, and that Liberty should conduct surveillance to determine the severity of Plaintiff's ongoing disability.
Plaintiff received STD benefits for the maximum period, through March 5, 2004. Under the terms of the plan, Plaintiff's case was then referred to case manager Angela Dawn to determine if Plaintiff qualified for LTD benefits.
On March 4, 2004, Liberty Life requested updated medical information from Dr. Rosenberg and Neuromuscular Associates. On that same day, Ms. Dawn sent a letter to Plaintiff asking that she follow up with Dr. Rosenberg and Neuromuscular Associates to ensure that they respond to Liberty Life's request as soon as possible. Ms. Dawn informed Plaintiff that proof must be provided by April 3, and that without this information, Liberty Life could not evaluate Plaintiff's eligibility for ongoing benefits. Liberty Life received notes from Neuromuscular Associates and Dr. Rosenberg's notes from Plaintiff's February 4, 2004 visit prior to the April 3 deadline.
Also on March 4, 2004, Liberty Life hired HUB Enterprises to conduct surveillance of Plaintiff. The initial 8 days of surveillance revealed the following:
• March 12, 2004: Plaintiff went to PetSmart, then two stores down to Michael's, and then to Medical Park Plaza. Upon exiting the vehicle, Plaintiff walked slowly to Neuromuscular Associates. After physical therapy Plaintiff went to the mall, HEB, and then returned home.
• March 13, 2004: Plaintiff did not leave the house except to reposition her car in the driveway.
• March 19, 2004: Plaintiff did not leave her house.
• March 22, 2004: Plaintiff went to Tai Chi, then came home.
• March 23, 2004: Plaintiff did not leave the house.
• March 24, 2004: Plaintiff went to the hair salon, HEB (where she had assistance pushing the cart and unloading the groceries), then home where she checked the mail before going inside. Plaintiff took 11 minutes to carry the groceries from the car to the house.
• March 25, 2004: Plaintiff met friends for lunch, then went home.
• March 26, 2004: Plaintiff went to the doctor's office, then home.
In a claim note dated April 28, 2004, Angela Dawn noted that Dr. Brown could not refute Dr. Rosenberg's opinion without a functional capacity evaluation and that Dr. Brown recommended approval of LTD benefits at this time. Claim notes 10 and 11, dated April 28, 2004, indicate that the surveillance tapes were sent to Dr. Brown so that she could write up an additional assessment.
On May 3, 2004 Dr. Brown submitted her assessment. After reviewing Dr. Rosenberg's documentation, Plaintiff's reports, and the surveillance tapes, Dr. Brown concluded that Plaintiff had physical capacity consistent with sedentary work.
Liberty Life retained HUB for another five days of surveillance. During three of the five days, Plaintiff did not leave her house. On the other two days, Plaintiff was observed going to one or two places, then returning home.
On May 17, 2004, Plaintiff sent Ms. Dawn a request for a complete copy all materials related to her LTD claim. Plaintiff specifically requested "all notes concerning my eligibility . . . regarding, concerning, or related to my claim for long-term disability benefits."
J. Ex. 176.
On May 28, 2004, Liberty Life sent Plaintiff an adverse benefit determination letter. The letter stated that Plaintiff's symptoms were not severe enough to preclude Plaintiff from performing the duties of an IT Lead Systems Analyst. Also on May 28, 2004, Angela Dawn sent Plaintiff a copy of her claim file. The copy sent to Plaintiff did not include any claim notes.
On November 10, 2004, Plaintiff appealed the adverse benefit determination. Plaintiff notified Liberty Life that she had been awarded Social Security Disability Benefits. Plaintiff's appeal was assigned to Lori Meacham on December 2, 2004. On December 7, 2004, Ms. Meacham sent Plaintiff an adverse benefit determination letter, stating that Plaintiff had provided no additional documentation to support a reversal of Ms. Dawn's original determination.
In March 2005, Plaintiff inquired to Ms. Karin Ross about why Plaintiff was not sent phone notations or notes when Liberty Life sent a copy of her claim file. On March 25, 2005, Ms. Ross sent Plaintiff a copy of all claim notes.
On April 19, 2005, Plaintiff submitted additional information about her Social Security Disability award, a letter dated November 3, 2004 from Dr. Rosenberg reiterating Plaintiff's poor prognosis for recovery and her total disability, and her written responses to the Social Security Administration questionnaire. On May 5, 2005, Ms. Meacham sent Plaintiff a letter stating that a full review of her case had already occurred, her case was closed, and no additional documentation would be reviewed.
CONCLUSIONS OF LAW
This Court has jurisdiction inasmuch as this action is brought under 29 U.S.C.A. 1132(a)(1)(B) of ERISA.
Vega, et al. v. Nat'l Life Ins. Serv., Inc. et al., 188 F.3d 287, 295 (5th Cir. 1999).
Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopting as a finding of fact.
Plaintiff's claim for benefits under USAA's employee welfare benefit plan is governed by Title IV of ERISA, 29 U.S.C.A. 1301 et seq.
The LTD plan was funded by an insurance policy underwritten by Liberty Life. Liberty Life was the named fiduciary of the Plan and it had full power to interpret and apply the terms of both the Plan and the insurance policy underlying the Plan. Angela Dawn, acting as the Claims Administrator, made the initial decision to deny Plaintiff LTD benefits. Lori Meacham issued the adverse benefit determination on appeal.
I. Standard of Review
Under the terms of the LTD Plan, Liberty Life was given full discretion to interpret the Plan's terms and to determine Plaintiff's eligibility for and entitlement to Plan benefits in accordance with the Plan's terms. Defendant Liberty Life's decision to deny Plaintiff's claim is to be reviewed by the Court under an abuse of discretion standard. The factual determinations made by Liberty Life in deciding whether Plaintiff was disabled under the terms of the Plan are also to be reviewed under an abuse of discretion standard.
Ronald G. Gooden, Sr. v. Provident Life Accident Ins. Co., 250 F.3d 329, 332-33 (5th Cir. 2001); Vega, 188 F.3d at 295.
Estate of Bratton v. Nat'l Union Fire Ins. Co. Of Pittsburgh, PA, 215 F.3d 516, 522 (5th Cir. 2000).
In applying the abuse of discretion standard, the Court analyzes whether the administrator acted arbitrarily and capriciously. The Court affirms an administrator's decision if it is supported by substantial evidence and there exists a rational connection between the known facts and the decision. The administrator's decisions to terminate Plaintiff's benefits must be based upon evidence, even if disputable, that clearly supports the bases for denial. Some concrete evidence supporting the denial of the claim must be in the administrative record. If no concrete evidence exists in the record, the Court must find that the administrator abused its discretion in denying Plaintiff's benefits.
Lain v. Unum Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir. 2002); Meditrust Fin. Serv. Corp., et al. v. Sterling Chemicals, et al., 168 F.3d 211, 213 (5th Cir. 1999).
Lain, 279 F.3d at 342; Sterling Chems., 168 F.3d at 215; Bellaire Gen. Hosp. V. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir. 1996).
Lain, 279 F.3d at 342, citing Vega, 188 F.3d at 299.
Vega, 188 F.3d at 302.
In addition to serving as an administrator, Liberty Life also acts as an insurer because the LTD Plan at issue was funded by an insurance policy underwritten by Liberty Life. By serving as both the insurer and the claims fiduciary of USAA's LTD Plan, Liberty Life will be deemed to have acted under a conflict of interest. "Where . . . an administrator's decision is tainted by a conflict of interest, the court employs a "sliding scale" to evaluating whether there was an abuse of discretion." "This approach does not mark a change in the applicable standard, but only requires the court to reduce the amount of deference it provides to an administrator's decision." The greater the evidence of conflict, the less deferential the Court's abuse of discretion standard will be. Where a minimal basis for conflict is established, the Court reviews the decision with "only a modicum less deference than we otherwise would."
See id. at 295; see Gooden, 250 F.3d at 333.
MacLachlan v. ExxonMobile Corp., 350 F.3d 472, 478 (5th Cir. 2003) (citing Vega, 188 F.3d at 297).
MacLachlan, 350 F.3d at 478.
Id. at 479; Lain, 279 F.3d at 343; Vega, 188 F.3d at 297; Estate of Bratton, 215 F.3d at 521 n. 4.
Vega, 188 F.3d at 301.
Usually, the Court applies a two-step process in analyzing whether the administrator's decision regarding the interpretation of the disability plan was an abuse of discretion. First, the Court must determine if the administrator's interpretation of the plan is legally correct. If the interpretation is legally correct, the inquiry ends because no abuse of discretion could have occurred. The Court must consider the following factors to determine if the plan's interpretation was legally correct: (1) whether the administrator has given the plan a uniform construction, (2) whether the interpretation is consistent with a fair reading of the plan, and (3) whether any unanticipated costs result from different interpretations of the plan.
Wilbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir. 1992).
Id.
Id. at 638.
Second, if the Court determines that the administrator's interpretation of the plan is legally incorrect, then the Court assesses whether the interpretation constitutes an abuse of the administrator's discretion. Three factors inform whether the interpretation of the plan constitutes an abuse of discretion: (1) the internal consistency of the plan under the administrator's interpretation, (2) any relevant regulations formulated by the appropriate administrative agencies, and (3) the factual background of the determination and any inferences of lack of good faith.
Id.; Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998).
Wilbur, 974 F.2d at 638.
In this case, Plaintiff does not contest that Liberty Life's interpretation of the Plan was legally correct. Instead, Plaintiff disputes Liberty Life's factual determinations. The administrator's factual determinations are always reviewed under an abuse of discretion standard. However, the Court's analysis of Plaintiff's eligibility for benefits also is informed by the plain meaning of the ERISA plan language. "Clearly, if an administrator interprets an ERISA plan in a manner that directly contradicts the plain meaning of the plan language, the administrator has abused his discretion even if there is neither evidence of bad faith nor a violation of any relevant administrative regulations."
Vercher v. Alexander and Alexander, Inc., 379 F.3d 222, 226 (5th Cir. 2004).
Gosselink v. Am. Telephone Telegraph, Inc., 272 F.3d 722, 726; Threadgill v. Prudential Securities Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
Gosselink, 272 F.3d at 727.
II. Discussion
A. Abuse of Discretion by Angela Dawn
In this case, there is only a minimal basis for conflict, therefore, the Court will review the administrator's decision with only a modicum less deference than it otherwise would. The Court believes that there was not a rational connection between the known facts and the administrator's decision. Specifically, the Court finds that the administrator abused its discretion in determining that Plaintiff did not meet the definition of "disabled" under the terms of the LTD policy so as to qualify her for LTD benefits. Therefore, the Court holds that Liberty Life's decision was arbitrary and capricious and should be reversed.
Liberty Life relied on seven different factors in deciding to deny Plaintiff's claim for LTD benefits. The factors relied on by Liberty Life include: (1) independent physician review by Dr. Gale Brown, Jr.; (2) negative results from specific blood tests; (3) functional capacity form completed by Neuromuscular Associates of San Antonio; (4) surveillance reflecting functional capacity; (5) Plaintiff's self-reported activity; (6) sedentary classification of Plaintiff's own occupation; and (7) physical therapy activity. The Court will address each of these factors in turn. Independent Review by Dr. Gale Brown, Jr.
Liberty Life places heavy emphasis on Dr. Brown's independent review of Plaintiff's records. Dr. Brown's conclusion relies in large measure on the surveillance taken of Plaintiff. Specifically, Dr. Brown states that "the functional data offers documentation of capacity generally consistent with sedentary work, as required by Ms. Liebenguth's own occupation." After reviewing the surveillance tapes, the Court is of the opinion that the "functional data" is not nearly the damning evidence that Liberty Life would like to believe. The tapes show Plaintiff to be moving at a deliberate pace. On six out of the thirteen days, Plaintiff did not leave her house at all. On three of the days, Plaintiff only left the house to go to physical therapy or tai chi. With the exception of one 5½ hour day, Plaintiff is never gone for more than three hours. Furthermore, in thirteen days of surveillance, Plaintiff engaged in only one social lunch. The Court finds Liberty Life's reliance on Dr. Brown's statement that "[o]n 5 days, the claimant was active performing various community errands for up to 5½ hours at a time" to not be an objective interpretation of the evidence.
J. Ex. 179.
On May 10, 2004, Plaintiff also stopped at HEB after leaving the Incarnate Word Extended Care facility.
J. Ex. 186.
Additionally, both Dr. Brown and Liberty Life place great emphasis on the DOT description of Plaintiff's job as sedentary. The parties recognize that Plaintiff's job requires her to sit for approximately 8 hours per day, therefore, her job is classified as sedentary. Dr. Brown's report states that based on the clinical and functional data as well as Plaintiff's admitted activity level, reasonable physical restrictions for Plaintiff include: frequent sitting with position change as necessary, occasional standing/walking, frequent fingering, near reaching, light grasping, and no repetitive pushing, pulling, firm grasping, bending/twisting at waist level, climbing. Dr. Brown concludes that because Plaintiff's job is sedentary in nature, she should be able to continue to perform her job with these reasonable restrictions.
Dr. Brown also mentions in her report that Dr. Rosenberg does not provide evidence of worsening of Plaintiff's condition at the time of disability. However, the Court would not expect there to be any type of triggering event in this case since fibromyalgia is a progressive illness. Furthermore, the record reflects that Dr. Rosenberg has been documenting Plaintiff's decline for more than six years. Dr. Brown does not dispute the fibromyalgia diagnosis. In support of her finding that Plaintiff can still perform her own occupation, Dr. Brown claims that Dr. Rosenberg provided no evidence to support his opinion of total disability. However, "[t]here are no laboratory tests for the presence or severity of fibromyalgia." Considering the unavailability of objective tests, as a fiduciary, if Defendant was looking for a certain type of evidence from Dr. Rosenberg to support Plaintiff's claim, it had the responsibility to request it specifically.
Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).
See 29 C.F.R. § 2560.503-1(g)(1)(iii) (requiring the administrator to give the claimant a "description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary").
However, what stands out for the Court is that neither Dr. Brown in her report, Ms. Dawn in her initial denial, nor Ms. Meacham in her denial on appeal ever mentions Plaintiff's actual job duties. Plaintiff was making in excess of $100,000 per year as an IT Lead Systems Analyst. The record demonstrates that her position required a very high level of analytical thinking all day. Yet at no level of review of Plaintiff's claim does anyone address how her medical condition affects her ability to perform the actual duties required of an IT Lead Systems Analyst, other than the ability to sit. The Court finds this failure to even address the material and substantial duties of Plaintiff's own occupation to be an abuse of discretion.
See Carson v. Canada Life Assurance Co., 28 Fed.Appx. 262, 267 (4th Cir. 2002) (in upholding a jury verdict in favor of Plaintiff, the court noted that one factor in Plaintiff's favor was that the insurance company "never addressed the mental symptoms of fibromyalgia which rendered [Plaintiff] even more completely disabled than had been conceded in Canada Life's internal conclusions.")
Negative Results from Specific Blood Tests
Liberty Life offers no elaboration on this factor; it simply lists the negative results as one of the factors relied on it reaching its decision.
Functional Capacity Form Completed by Neuromuscular Associates of San Antonio
The Court finds that the Functional Capacity Form does not constitute substantial evidence that Plaintiff does not meet the definition of disability. The physical therapy notes demonstrate that Plaintiff has some physical limitations, she frequently reports being in pain, and occasionally reports feeling better. However, as discussed above in relation to Dr. Brown's report, the physical therapy notes in no way address the actual requirements of Plaintiff's own occupation and whether she is able to perform them on a daily basis.
Surveillance
Liberty Life's determination relies strongly on the surveillance tapes. As discussed earlier, out of thirteen days of surveillance, Plaintiff did not leave the house for six of those days. Plaintiff does leave to go to the grocery store, physical therapy, tai chi, the mall once per week, and to lunch with friends one time. Liberty Life contends that the surveillance shows Plaintiff to be "active" and, therefore, capable of performing her sedentary job. However, the Court finds the surveillance to be more consistent with Plaintiff's description of her limitations. For example, on her combined questionnaire form, Plaintiff indicated that she leaves the house once a day and goes to the mall about once a week. These statements are entirely consistent with the surveillance tapes.
Before Liberty Life hired HUB to do surveillance on Plaintiff, Dr. Brown stated that she could not refute Dr. Rosenberg's opinion about Plaintiff's work restrictions without a functional capacity evaluation. Liberty Life decided that surveillance was the best measure of functional capacity in this case. Upon review of the surveillance tapes, Dr. Brown concluded that Plaintiff was capable of performing duties consistent with a sedentary job. It is the Court's opinion that these surveillance tapes shed no more light on Plaintiff's ability to perform the substantial and material duties of an IT Lead Systems Analyst than Dr. Brown's report did. Plaintiff does not need to be bed-ridden in order to be unable to perform the material and substantial duties of her own occupation. The Court believes that the surveillance tapes do not constitute substantial evidence that Plaintiff is not disabled as that term is defined in the LTD plan.
Plaintiff's Self-Reported Activity
Defendant Liberty Life points out that on a couple of occasions Plaintiff was able to use the computer for several hours at home and that she had a week of increased activity right before Christmas. Looking at the administrative record as a whole, the Court finds that these instances do not reflect Plaintiff's usual condition. With a few exceptions, Plaintiff consistently reported to her physical therapist that she was in pain. The record also indicates that Plaintiff's pain is exacerbated by prolonged periods of sitting, as well as spending more than 20 minutes mousing and keying at the computer. The Court is of the opinion that Plaintiff experiencing one or two good days during which she can be more productive does not constitute substantial evidence that she does not meet the definition of disability.
Sedentary Classification of Plaintiff's Own Occupation
Liberty Life also believes its decision is supported by the fact that Plaintiff's job is classified as sedentary. The surveillance shows Plaintiff is able to drive, walk, and carry certain items. The functional capacity form filled out by Neuromuscular Associates of San Antonio shows that Plaintiff has some mobility restrictions, but not too severe. Therefore, Defendant argues that Plaintiff can perform her sedentary own occupation. However, the Court is unable to make the leap that because Plaintiff was able to be gone from her house for approximately 15 out of 64 surveillance hours and is not totally immobile, she is capable of performing the material and substantial duties of an IT Lead Systems Analyst. The record shows Plaintiff's job requires a high level of analytical thinking. Yet, Liberty Life never once addresses how Plaintiff's pain affects her ability to think and concentrate. Liberty Life has offered no evidence that Plaintiff is capable of high-level analytical thinking for 8 to 10 hours a day, four and one half days per week.
See Lain, 279 F.3d at 347 (noting that equating the ability to do some amateur research at home with the ability to perform the material duties of an attorney specializing in real estate "reflects plain lack of objectivity and an abuse of discretion by UNUM.").
Physical Therapy Activity
The Court has previously addressed the impact of Plaintiff's physical therapy.
B. Abuse of Discretion by Lori Meacham
Because the record does not reflect any additional investigation by Ms. Meacham, the conclusions reached regarding Ms. Dawn's determinations also apply to Ms. Meacham.
The Court is of the opinion that there is an absence of concrete evidence supporting Liberty Life's determination that Plaintiff is not disabled. The Court can discern no rational connection between the known facts and the administrator's decision. Therefore, the Court finds that Liberty Life abused its discretion in denying Plaintiff's claim for LTD benefits.
C. The Additional Documents Submitted After the Decision on Appeal — Exhibit 7
The Court does not need to reach the decision of whether the documents Plaintiff submitted to Liberty Life after the denial of her appeal, but before the lawsuit was filed, should be part of the administrative record. The Court finds that Liberty Life abused its discretion even without the consideration of these documents. Therefore, the Court makes no findings regarding whether Exhibit 7 should be part of the administrative record.
D. Plaintiff's Liquidated Damage Claim
Plaintiff requests that the Court award her liquidated damages for Liberty's violation of 29 U.S.C. 1132(c). 29 U.S.C. 1132(c) requires the administrator to send the beneficiary any materials requested within 30 days. If the administrator fails to provide the requested information within 30 days, the Court has the discretion to award the beneficiary damages in the amount of $100 per day for each day the administrator was late. On May 17, 2004 Plaintiff requested a complete copy of her claim file, including any notes relating to her claim for disability benefits. Angela Dawn sent Plaintiff a copy of her claim file on May 28, 2004, but the file did not include the claim notes. On March 25, 2005, Plaintiff notified Karin Ross that she had not received any notations or phone calls with the copy of her file. Ms. Ross told Plaintiff about the claim note system and forwarded a copy of the claim notes to Plaintiff on March 25, 2005. Plaintiff asks the Court to award her $28,100.00 in liquidated damages because Liberty Life was 281 days late in responding to her request for claim notes.
Defendant responds that Plaintiff is not entitled to statutory penalties under ERISA for several reasons. First, Plaintiff was required to make the request for documents to the administrator. The USAA LTD Plan identifies Senior Vice President, Human Resources, of USAA as the "Plan Administrator." USAA Senior Vice President, Human Resources is not a named defendant in this action, therefore, he cannot be liable for these penalties. Plaintiff sent her request to Liberty Life, but because Liberty Life is not the named administrator of the USAA LTD Plan, it cannot be liable for the statutory penalties.
Also, Liberty Life contends that the claim notes that Plaintiff requested are not documents "required by this title" to be furnished to the beneficiary. Instead, the requirement to provide claim note-type documents is contained in 29 C.F.R. § 2560.503-1(h)(2)(iii). Liberty Life asserts that because the requirement to provide these documents is contained in a regulation and not a statute within ERISA itself, Plaintiff is not entitled to recover statutory penalties for any late delivery of documents.
The parties do not cite, and the Court cannot find, any Fifth Circuit law that addresses whether statutory penalties under 29 U.S.C. § 1132(c)(1) can be assessed for Defendant's violation of 29 C.F.R. § 2560.503-1(h)(2)(iii). Without deciding the substantive merits of the arguments in favor and against assessing statutory penalties for violation of a regulation, the Court is of the opinion that this is not a case in which it would exercise its discretion to impose a statutory penalty. There is no evidence Defendant Liberty Life acted in bad faith in failing to provide the claim notes. Furthermore, when Plaintiff brought it to Liberty Life's attention that she had not received the claim notes, they promptly forwarded copies of the claim notes to her. Therefore, Plaintiff's request for liquidated damages under 29 U.S.C. § 1132(c)(1) is DENIED.
E. Attorney's Fees
In determining whether to award attorney's fees and costs in an ERISA case, the Court takes into consideration the following factors: "(1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' position." Upon consideration of these factors, the Court is of the opinion that Plaintiff's counsel is entitled to attorney's fees.
Lain, 279 F.3d at 347-48 (quoting Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)).
The Court is to utilize the "lodestar method" to determine the amount of attorney's fees to award. This method requires the Court to consider what would be a reasonable amount of time spent on this case as well as what a reasonable fee would be. The Court directs Mr. Dahl to submit an affidavit regarding the work expended on this case by April 19, 2006. Defendant may file its response, if any, by May 2, 2006.
Id. at 348 (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997)).
Id. (citing Wegner, 129 F.3d at 822).
CONCLUSION
For the foregoing reasons, the Court finds that Defendant's factual findings were arbitrary and capricious. The Court ORDERS that Plaintiff's claim be remanded to the administrator for a determination of benefits for the 24 month "own occupation" period described in the policy, with an offset for the social security disability benefits received. It is further ORDERED that Plaintiff's request for liquidated damages pursuant to 29 U.S.C. § 1132(c)(1) be DENIED. It is further ORDERED that Plaintiff's request for attorney's fees and costs be GRANTED with the amount to be determined in a subsequent order.