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Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 1 of 26 PageID #: 1293

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

_____________________

No 12-cv-3312 (JFB)(ARL)
_____________________

DONNA ZENKER,



















VERSUS


Plaintiff,



RELIANCE STANDARD LIFE INSURANCE COMPANY,








___________________



Defendant.

MEMORANDUM AND ORDER

September 20, 2013

___________________
































JOSEPH F. BIANCO, District Judge:

this action

Plaintiff Donna Zenker (“plaintiff” or
“Zenker”) brings
seeking
employment benefits to which she claims
she
is entitled under her employer’s
employee welfare benefit plan, governed by
the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. § 1001,
et seq., and administered by defendant
Reliance Standard Life Insurance Company
(“defendant” or
“Reliance Standard”).
Defendant moves for summary judgment on
the grounds that sufficient evidence in the
record supports defendant’s decision to deny
plaintiff benefits in addition to those benefits
already provided. Plaintiff cross-moves for
the
summary
evidence
that
plaintiff had an ongoing disability. In
support of her argument, plaintiff points,
inter alia, to the fact that the Social Security

that
the record establishes

judgment, asserting
in








Administration (“SSA”) awarded plaintiff
benefits.
challenges
defendant’s denial-of-benefits decision as
arbitrary and capricious.

plaintiff

Thus,

After careful consideration of

the
parties’ arguments, and for the reasons set
forth herein, the Court grants defendant’s
motion for summary judgment in its entirety
and denies plaintiff’s cross-motion
for
summary judgment.

I. FACTS

parties’

exhibits,

affidavits,

The Court derives the facts below from
the
the
Administrative Record, and from the parties’
respective Rule 56.1 Statement of Facts. A
court considering a motion for summary
judgment shall construe the facts in the light
most favorable to the non-moving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Unless otherwise

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 2 of 26 PageID #: 1294

noted, where a party’s 56.1 Statement is
cited, that fact is undisputed or the opposing
party has pointed to no evidence in the
record to contradict it.

A. Plaintiff and the Plan

in

JetDirect’s

long

Plaintiff previously worked for JetDirect
Aviation, LLC as a flight attendant. (Def.’s
56.1 Statement of Facts (“Def.’s 56.1”) ¶¶ 1,
8.) A benefit of her employment was
participation
employee
welfare benefit plan (“Plan”). (Id. ¶ 2.) The
Plan offers group
term disability
coverage and is insured by defendant. (Id.
¶ 3.) Pursuant to the express language of the
Plan, defendant has discretion
to both
interpret the Plan’s provisions and to make
(See
benefit
Def.’s Mem. of Law in Supp. of Mot. for
Summ. J. (“Def.’s Mot. for Summ. J.”) Ex.
B, at 15 (stating that “Reliance Standard
Life Insurance Company shall serve as the
claims review fiduciary,” and that it “has the
discretionary authority to interpret the Plan
and the insurance policy and to determine
eligibility for benefits”).)

eligibility determinations.

Of relevance to this dispute is the Plan’s
allowance for the payment of benefits in the
event of “Total Disability.” (Def.’s 56.1
¶ 6.) The Plan defines this term as when, due
to “Injury or Sickness, . . . an Insured cannot
perform the material duties of his/her regular
occupation.” (Id.; see also Def.’s Mot. for
Summ. J. Ex. B, at 11.) This definition
changes after benefits have been paid for
twenty-four months. At this point in time, an
insured will be deemed “Totally Disabled”
“if due to an Injury or Sickness he or she is
capable of only performing the material
duties on a part-time basis or part of the
material duties on a Full-time basis.” (Def.’s



2

56.1 ¶ 7; see also Def.’s Mot. for Summ. J.
Ex. B, at 11.)1

Plaintiff’s employment position, a flight
attendant, constituted a medium exertion
level position under the Plan. (Def.’s 56.1
¶ 8; see also Def.’s Mot. for Summ. J. Ex. F,
at 540-41.) On June 13, 2008, plaintiff
submitted two separate claim forms in
support of her request for disability benefits.
(See Def.’s 56.1 ¶¶ 8-9; Def.’s Mot. for
Summ. J. Ex. F, at 504, 506-09, 515-518.) In
the first, plaintiff claims a “hypothyroid”
condition and cites an inability to work
because
“weakness/muscle
control/headaches/tired/no
concentration”
(see Def.’s 56.1 ¶ 9; see also Def.’s Mot. for
Summ. J. Ex. F, at 506); in the second form,
plaintiff cites a “glaucoma” condition (see
Def.’s Mot. for Summ. J. Ex. F, at 515-18).2
Plaintiff sought long term disability benefits
on account of these two conditions.

of

Plaintiff’s hypothyroid claim included a
physician’s statement submitted by Suffolk
First Medical, P.C. and dated June 13, 2008.
(See Def.’s Resp. & Opp’n to Pl.’s Cross-
Mot. for Summ. J. (“Def.’s Resp. & Opp’n”)
at 4; see also Def.’s Mot. for Summ. J. Ex.
F, at 510-11.) In this report, the treating
physician primarily diagnosed plaintiff with
hashimoto’s thyroiditis, noted “subjective”
symptoms of “bone aches, muscle cramps,
and cognitive function,” and stated an
objective finding of “muscle weakness.”
(See Def.’s Mot. for Summ. J. Ex. F, at 510.)

1 The Court uses the term, “Total Disability,” to refer
to these Plan definitions.
2 In her opposition motion, plaintiff states that she
applied for disability benefits under the Plan “on or
about July 2, 2008.” (Pl.’s Opp’n & Cross-Mot. at 2.)
However, plaintiff cites to no documentary evidence
supporting this. A review of the record shows that
plaintiff submitted a request for benefits on June 13,
2008. (See Def.’s Mot. for Summ. J. Ex. F, at 504,
506-09, 515-18.) Thus, the Court relies on this date
for purposes of assessing when the claim was first
submitted.

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 3 of 26 PageID #: 1295

able

This report noted that plaintiff’s activity
ability was limited to sitting or driving 1-3
hours, with no standing, walking, or lifting.
(Id. at 511.) This same report also concluded
that plaintiff was
to perform
(33%)” bending, squatting,
“Occasional
climbing, reaching above
the shoulder,
kneeling, crawling, and “[u]s[ing] feet (foot
controls),” and that plaintiff could drive
“[f]requent[ly] (34-66%).” (Id.) Handwritten
onto the report is the language, “no lifting.”
(Id.) Additionally, the report stated that
plaintiff could use her upper extremities and
both her right and left hands for repetitive
“simple grasping” and “fine manipulation,”
but that she could not push or pull with her
hands. (Id.) The authoring doctor, the name
of whom is illegible in the report, estimated
that plaintiff would be able to return to work
on August 30, 2008, and that she would
achieve maximum medical improvement
within 3-4 months. (Id.)

a

corresponding

Plaintiff’s glaucoma claim did not
include
physician’s
statement. Nevertheless, defendant obtained
and examined the relevant treatment records
concerning plaintiff’s asserted glaucoma
condition. (See Def.’s Resp. & Opp’n at 4.)

From the record, it appears that various
subsequent physician evaluations followed
concerning plaintiff’s claims. The Court
highlights the pertinent portions in order to
assess defendant’s benefit determinations.

In July 7, 2008, Dr. Michelle Guevarra
Pena (“Dr. Pena”), an ophthalmologist,
determined that plaintiff’s activity abilities
were limited to 3-5 hours of standing,
sitting, walking or driving, and that plaintiff
generally was able to perform activities
(including bending, squatting, climbing,
reaching above
the shoulder, kneeling,
crawling, using feet, and driving) at a
“Continuous 67-100%”
level
(instead of the “Occasional (33%)” level).

capacity



3

(See Def.’s Mot. for Summ. J. Ex. F, at 530-
31.) Dr. Pena concluded that plaintiff was
capable of performing “medium work,”
defined in the report as the ability to lift a
maximum of fifty pounds, and to frequently
lift and/or carry up to twenty-five pounds.
(Id. at 531.) Dr. Pena estimated that plaintiff
would be able to return to work as of
September 1, 2008. (Id.) Dr. Pena noted no
other restrictions as to plaintiff’s physical
abilities.3

of

carpal

condition

Months later, Dr. Pena issued another
evaluation report. This one, dated October 6,
2008, diagnosed plaintiff with glaucoma and
dry eye, and also, noted the additional
medical
tunnel
syndrome. (See Def.’s 56.1 ¶ 12; see also
Def.’s Mot. for Summ. J. Ex. G at 631.) To
the questions of “how long was or will
patient be continuously
totally disabled
(unable to work)” or “partially disabled,”
Dr. Pena wrote, “not applicable.” (See Def.’s
Mot. for Summ. J. Ex. G at 632.) Thus, it
appears that as of October 6, 2008, Dr. Pena
did not believe that plaintiff’s symptoms
disabled her
from performing medium
exertion level work. (See Def.’s 56.1 ¶ 12;
see also Def.’s Mot. for Summ. J. Ex. G at
631-62.)

(“Dr. Dubey”), a specialist

Another medical report was issued the
next day, October 7, 2008, by Dr. Ashok
Dubey
in
orthopedics. (See Def.’s Mot. for Summ. J.
Ex. G at 656-58.) Dr. Dubey diagnosed
plaintiff as having carpal tunnel syndrome
and stated that plaintiff “may do desk duty if
available but unable to function as flight
attendant.” (Id.) Further, Dr. Dubey checked

3 In addition to these physical ability observations,
Dr. Pena diagnosed plaintiff with glaucoma and dry
eye, noted subjective symptoms of “headache,
dryness, tiredness, lids droopy, trouble focusing,”
listed “thyroid eye disease” as a secondary condition
afflicting plaintiff, and stated no objective findings.
(Def.’s Mot. for Summ. J. Ex. F, at 530.)

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 4 of 26 PageID #: 1296

“yes” for the question of whether plaintiff
would “be capable of performing full time
work if [she] were seated most of the time
(with the ability to stand or walk for brief
periods of time and/or change position
occasionally) and not required to lift more
than 10 pounds occasionally, and/or a
negligible amount of force frequently.” (Id.
at 658.) Thus, although Dr. Pena’s October
6, 2008 report did not observe plaintiff to be
either “continuously totally disabled” or
“partially disabled,” Dr. Dubey’s report
suggests that at least one physician did not
view plaintiff’s progress as sufficient for
purposes of performing the medium level
exertion work of a flight attendant. That
being said, Dr. Dubey’s report does not
indicate a Total Disability, as the report
states that plaintiff could perform at least
sedentary work on a full-time basis. (See id.)

On September 10, 2008, defendant
approved plaintiff’s claim for long term
disability benefits. (See Def.’s Mot. for
Summ. J. Ex. E at 409-10.) The letter noted
that “it is questionable whether or not your
particular illness or injury will prevent you
from performing substantial work activity
for a period of 12 months,” and noted that in
order “to determine if [plaintiff] continue[s]
to be disabled from [her] occupation beyond
October 1, 2008, [defendant] require[s]
additional medical documentation from [her]
treating
410.)
Following
this determination, an event
occurred: on November 8, 2008, plaintiff
was involved in a motor vehicle accident.
(Pl.’s Rule 56.1 Statement (“Pl.’s 56.1”)
¶ 9.) Plaintiff’s injuries included cervical
and upper extremity pain. (See Def.’s Mot.
for Summ. J. Ex. C, at 261.) Defendant
reviewed
records
(consisting of physical therapist notes, with
additional medical information requested)
concerning plaintiff’s condition on or

additional medical

physician(s).”

(Id.

at



4

around December 10, 2008 and December
17, 2008. (See id.)4

B. The Initial Denial of Benefits

Determination

(Def.’s Mot.

that plaintiff’s

Following plaintiff’s accident, defendant
performed a residual employability analysis
on December 23, 2008, taking into account
plaintiff’s education, training, and work
experience, as well as her “current
diagnosis,” which included “hashimoto’s
thyroiditis, bilateral carpal tunnel syndrome,
and cervical pain.” (Def.’s Mot. for Summ.
J. at 2; see also id. Ex. G at 675.) Defendant
concluded
skills were
“transferable” to other occupations, such as
automobile club safety program coordinator,
information clerk, receptionist, or tourist-
information assistant.
for
Summ. J. Ex. G at 676.) The degree of
exertion noted for such positions was
labeled as “sedentary.” (Id.) Based on this
analysis, on February 24, 2009, defendant
informed plaintiff that benefits would not be
payable to her after December 30, 2009,
which marked the time when the Plan’s
definition of Totally Disabled would change
for plaintiff. (Def.’s Mot. for Summ. J. at 2;
see also id. Ex. E at 429-31.) In particular,
defendant
that
“[d]uring the first 24 months that [] benefits
are payable, you need only be disabled from
performing the material duties of your
regular occupation. After
this period,

4 Defendant contends that the nature of plaintiff’s
disability claims did not change following the motor
vehicle accident, indicated by the fact that plaintiff
never withdrew her pre-motor vehicle accident
claims or, for
the corresponding
physician statements and medical records. (See Def.’s
Mot. for Summ. J. Ex G, at 692-96; id. Ex. H, at 714-
19).) Although defendant acknowledges that plaintiff
made complaints following the accident, it does not
appear that plaintiff filed a separate long term
disability benefit claim subsequent to this occurrence,
nor do the parties direct the Court’s attention to any
such disability claim in the record.

to plaintiff

explained

that matter,

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 5 of 26 PageID #: 1297

information

the medical

however, the policy requires that you be
unable to perform the material duties of any
occupation.” (Def.’s Mot. for Summ. J. Ex.
E, at 429.) Defendant explained that it had
reviewed
in
plaintiff’s claim file, and based on this, had
determined that plaintiff was capable of
performing sedentary work. (Id. at 429-30.)5
Because plaintiff was deemed capable of
performing the material duties of other
occupations – all of which fell into the
category of sedentary work – plaintiff no
longer satisfied
the definition of Total
Disability; accordingly, she could not
receive those benefits past the December 30,
2009 date. (Id. at 430.)

C. The Appeal and Reconsideration

Plaintiff disagreed with this conclusion.
She appealed defendant’s decision, claiming
that she continued to experience problems
related to, inter alia: carpal tunnel syndrome
(for which she received a prescription for
physical therapy); neck and disc problems
(for which she had been seeing a physical
therapist); eye discomfort; and headaches
and pain (which she was managing via
acupuncture). (Id. Ex. G at 692-96.) Plaintiff
also
she had difficulty
concentrating or sitting in one position and
that she required “constant breaks.” (Id. at
694.)

stated

that

during

In response, defendant decided to reopen
plaintiff’s claim. (Id. Ex. C at 276-77.) The
effect of this reopening was to again treat
plaintiff as disabled under the Plan and
allow her to continue receiving disability
benefits
the

5 The letter defined “sedentary work” as “exerting up
to 10 pounds of force occasionally and/or a negligible
amount of force frequently to lift, carry, push, pull, or
otherwise move objects. . . . Sedentary work involves
sitting most of the time, but may involve walking or
standing for brief periods of time.” (Def.’s Mot. for
Summ. J. Ex. E, at 430.)

period

the

of



5

investigation. (Id.) This was so, even though
the investigation went beyond the December
30, 2009 end date. (See Def.’s Mot. for
Summ. J. at 2.) Thus, plaintiff continued to
receive benefits, even though it was unclear
whether plaintiff technically was Totally
Disabled under defendant’s post-24 month
definition of that term, while defendant
investigated plaintiff’s claims further. (Id.;
see also id. Ex. E at 450-53.)

D. The Investigation

for

To perform such investigation, on both
March 18, 2010 and April 2, 2010,
defendant requested that plaintiff submit a
Supplemental Report for Continued Long
Term Disability benefits, as well as a copy
of plaintiff’s medical records “from all
treating physicians
the period of
February 17, 2009 to present.” (Def.’s Mot.
for Summ. J. Ex. E at 451.) Defendant
received only a partial response from
plaintiff, along with a promise to follow-up
from her
with additional
treating physicians. (Id.) However,
the
additional information was not provided. In
fact,
such
information from plaintiff, but to no avail.
(Id.)

re-requested

information

defendant

the

investigation,

Defendant produced two documents, in
connection with
that
plaintiff asserts are probative of defendant’s
benefits decision. The first is a notation by
Reliance Standard’s Medical Department,
dated April 14, 2010, noted in its medical
records. The notation reads, inter alia, that
[is] completed and
“[m]edical
supports
to
12/31/2012.” (Def.’s Mot. for Summ. J. Ex.
D, at 394.) The notation also stated:
“[m]edical records support no lifting greater
than 10 lbs, occasional fingering and no
restrictions on sit/stand/walk.” (Id.) Plaintiff
contends that this note shows that, as of
April 14, 2010, defendant viewed plaintiff as

review
ongoing

impairment

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 6 of 26 PageID #: 1298

that

the notation

disabled under the Plan’s terms. Defendant
counters
regarding
“12/31/2012” was clearly a scrivener’s error
because plaintiff’s
claim was being
evaluated under the occupation standard
until December 2009, and there was no need
to decide whether plaintiff was disabled
through 2012. Moreover, defendant points
out that the rest of the note, referenced
above, makes clear that the examiner did not
consider plaintiff to be totally disabled from
sedentary level work as of April 2010.

The second is a letter, dated August 2,
2010, in which defendant stated: “[o]ur
records show that you have been disabled
since October 1, 2007. According to recently
submitted medical documentation, you
remain totally disabled. A review of this
documentation by our medical department
determined that you may remain Totally
Disabled for at least twelve (12) months.”
(Compl. Ex. D.) The letter also recalculates
the amount of long term disability benefits
for which plaintiff might be eligible in the
event she
received a Social Security
Disability award. (Id.) Plaintiff argues that
this letter further establishes that, as of
August 10, 2010, defendant viewed plaintiff
as disabled under the terms of the Plan.
Defendant counters that it is clear from the
that
context of
it was not
addressing
the substance of plaintiff’s
underlying claim, but rather, was simply
memorializing the fact that plaintiff was still
receiving disability benefits while the claim
was being re-opened.

letter

that

As of December 7, 2010, defendant still
had not received the requested information
from plaintiff. (Def.’s Mot. for Summ. J. Ex.
E, at 450-53.) Based on the information
before it, defendant determined that the
record did not support a finding of disability
from sedentary work level; thus, defendant
would terminate plaintiff’s benefits as of
December 30, 2010. (Id.) Defendant did not



6

request reimbursement for those monthly
benefits that it had paid from December 30,
2009 to December 30, 2010, during the
period of its investigation. (See Def.’s 56.1
¶ 28.)

Plaintiff responded to that determination.
Specifically, she appealed, setting forth
similar complaints as those stated in her
prior appeal. (See Def.’s Mot. for Summ. J.
Ex. H, at 714-19.) Plaintiff also promised to
submit records from her medical providers.
(Id.) In response, defendant sent plaintiff a
letter, dated January 21, 2011, stating that it
“ha[d] conducted an initial review of the
information in the claim file with a Medical
Staff Specialist, and determined that, in
fairness to you, we will require additional
medical
treatment
providers, prior to the conclusion of our
review.” (Def.’s Mot. for Summ. J. Ex. E, at
456.) Defendant also requested plaintiff’s
medical records from “all providers with
whom [plaintiff had] received medical
treatment, consultation, care and/or services
from December 3, 2008 until present.” (Id.)

from your

records

During this time period, plaintiff visited
several physicians, specifically, Dr. Walter
A. Rho (“Dr. Rho”) (on December 20, 2010,
February 22, 2010, and May 2, 2011)), Dr.
Alfred F. Faust (“Dr. Faust”) (on March 18,
2010 and August 19, 2010), Dr. Mebrahtu
(on August 20, 2010), and Dr. Keefer (on
March 9, 2011 and May 18, 2011). (See Pl.’s
Opp’n & Cross-Mot. at 14.) The Court
reviews the substance of each doctor’s
evaluations.

1. Dr. Rho’s Evaluation

Dr. Rho examined plaintiff on February
22, 2010, on December 20, 2010, and on
May 2, 2011. There is little variation
amongst the three reports. In each report, Dr.
Rho observed plaintiff’s present condition as
concerning plaintiff’s right and left wrists,

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 7 of 26 PageID #: 1299

pain

generally

described

as
with
“dull/aching” or “throbbing,
tight and
tingling.” (Def.’s Mot. for Summ. J, Ex. I, at
845, 851; Def.’s Mot. for Summ. J. Ex. J, at
937.) In his physical examination, Dr. Rho
noted (in all three reports) that plaintiff has
“carpal tunnel syndrome; there is positive
tineis; positive phalens at the bilateral carpal
tunnel.” (Def.’s Mot. for Summ. J. Ex. I, at
846, 851; Def.’s Mot. for Summ. J. Ex. J, at
938.) As his overall assessment, Dr. Rho
diagnosed plaintiff as having carpal tunnel
syndrome and cervical radiculopathy, and
recommended
two months of physical
therapy for the upper extremities in each
report. (Def.’s Mot. for Summ. J. Ex. I, at
846, 851; Def.’s Mot. for Summ. J. Ex. J, at
938.) There
is no other commentary
regarding plaintiff’s movement abilities or
any notation regarding a disability in Dr.
Rho’s February or December 2010 reports;
in Dr. Rho’s May 2011 report, he noted
plaintiff’s current work status as “disabled,”
and recommends a follow-up examination.
(Def.’s Mot. for Summ. J. Ex. J, at 937-38.)

2. Dr. Faust’s Examination

Dr. Faust, who first examined plaintiff
on March 18, 2010, observed plaintiff as
having a neck problem, with “dull/aching,
radiating and throbbing” pain. (Def.’s Mot.
for Summ. J. Ex. I, at 847.) In his physical
examination of plaintiff, he found plaintiff’s
range of neck motion to be “abnormal with
crepitation, contracture and pain. Cervical
examination reveal[s] pain, muscle spasm,
diminished flexibility, diminished extension,
diminished rotation and diminished lateral
bending.” (Id. at 848.) He also noted that
plaintiff’s “Spurling Exam
is positive.”
(Id.)6 There is little substantive difference

6 A Spurling exam “is an evaluation for cervical
nerve root impingement in which the patient extends
the neck and rotates and laterally bends the head
toward the symptomatic side. Axial compression is
then applied by the examiner through the top of the



7

between Dr. Faust’s March 18, 2010 report
and his August 19, 2010 evaluation. In his
subsequent examination, Dr. Faust again
described plaintiff’s “problem [a]s located at
the neck,” and her pain, “as dull-aching,
radiating and tight.” (Id. 849.) This report,
however, noted plaintiff’s current work
status as “not working due to this injury and
(Id.) Dr. Faust’s overall
[d]isabled.”
observations remained the same, including
that plaintiff’s range of motion in the neck is
“abnormal with crepitation, contracture and
pain. Cervical examination reveal[s] pain,
muscle
flexibility,
diminished extension, diminished rotation
and diminished lateral bending.” (Id. at
850.) In contrast, however, this report states
that a “Spurling Exam is negative.” (Id.) In
both reports, the doctor diagnosed plaintiff
as having “cervical radiculopathy.” (Id. at
849, 850.)

diminished

spasm,

3. Dr. Mebrahtu’s Examination

listed

(including,

taking, and

the medications

Dr. Mebrahtu examined plaintiff on
August 20, 2010. (Id. at 871-72.) In his
report, the doctor noted plaintiff’s past
inter alia,
medical history
thyroid disease, glaucoma, and carpal tunnel
syndrome),
that
plaintiff was
summarized
plaintiff’s history of illness (acknowledging
plaintiff’s complaints of neck and shoulder
pains). (Id. at 871.) Regarding plaintiff’s
overall examination, Dr. Mebrahtu stated
that plaintiff’s neck “is supple,” that “[s]he
has tenderness in the paracervical region,
worse on the right than the left with
decreased range of motion on lateral side
bending,” and that “[t]here is no palpation
tenderness in the paracervical region.” (Id. at
872.) However, the doctor found plaintiff’s


patient’s head. The test is considered positive if the
maneuver elicits . . . pain.” Alvarez v. Colvin, No. 12-
cv-3569-BK, 2013 WL 1858197, at *2 n.2 (N.D.
Tex. May 3, 2013).

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 8 of 26 PageID #: 1300

(Id.) Dr. Keefer noted that “plaintiff is
disabled from neck” in the comment section
to
recommended
physical therapy. (Id.)

report, but also

the

a

report

following

shoulders),

Dr. Keefer’s May 2011

is
substantively similar to the March 2011
report. (See Def.’s Mot. for Summ. J. Ex. J
at 997-98, Def.’s Mot. for Summ. J. Ex. K at
1004-05.) The report notes the location of
plaintiff’s asserted injury (namely, her neck
and
and makes verbatim
observations
physical
examination of plaintiff as those made in Dr.
Keefer’s March 2011 report. (Def.’s Mot.
for Summ. J. Ex. J at 1004-05.) Regarding
plaintiff’s neurologic exam, Dr. Keefer
states that plaintiff’s coordination, along
with “[s]ensation in arms and legs,” is intact.
(Id. at 1005.) In a handwritten note
addressing plaintiff’s diagnosis, Dr. Keefer
states that “patient is disabled @ [sic] unable
to work in any capacity.” (Def.’s Mot. for
Summ. J. Ex. J, at 998.) However, while
recommending that plaintiff “no[t] work, has
multiple problems,” Dr. Keefer
also
recommends treatment with physical therapy
and other medications, suggesting
that
plaintiff’s condition may not be permanent
or beyond betterment. (Id.) In the report, Dr.
Keefer again assesses plaintiff as having
cervical radiculopathy, as well as moderate
to severe neck pain. (Id.)

*

*

*

all

provided

Defendant

received
information regarding plaintiff’s medical
history to an independent medical examiner,
Dr. Samuel Thampi, M.D. (“Dr. Thampi”), a
doctor who is Board Certified in Physical
Medicine and Rehabilitation and Pain
Management. (See Def.’s Mot. for Summ. J.

neurological examination to be normal, with
no language or memory deficit, no visual
field deficit, and no sensory deficit. (Id.)
Additionally, the doctor found plaintiff’s
cranial nerves I through XII to be intact, her
motor skills to be “5/5 with normal tone
bilaterally,” her reflexes to be “2/2 with
down-going plantars,” and her gait to be
“normal.” (Id.) The doctor’s “diagnostic
included cervical sprain,
considerations”
cervical herniated disc,
cervical
(Id.) Dr.
myofascial pain
Mebrahtu recommended an MRI scan of
plaintiff’s cervical spine
the
potential herniated disc diagnosis, and also,
additional
for
plaintiff. (Id.) The report makes no mention
regarding any
limitations on
plaintiff’s activity or work abilities, nor does
the report address the nature and extent of
any alleged disabilities.

acupuncture

syndrome.

to assess

treatment

specific

and

4. Dr. Keefer’s Examination

Dr. Keefer examined plaintiff on two
occasions: March 9, 2011 and May 18,
2011. The March 2011 report noted that
plaintiff’s stated problem “is located at the
neck,” and that she was receiving treatment
from a Dr. Mebrahtu for her condition. (See
Def.’s Mot. for Summ. J. Ex. I, at 864.) The
report noted that the pain plaintiff claimed to
be experiencing was “worse while sitting,
standing, twisting, bending, squatting, cold,
lifting, exercise and coughing.” (Id.) Dr.
Keefer made the following observations
based on a physical examination of plaintiff:
the cervical spine showed a decreased range
of motion, there was “tenderness in the
paraspinal musculature of the cervical spine
with spasm,” “[n]o tenderness over the bony
prominences,”
“[c]ervical muscle
strength is full,” and that there is “[n]o
instability.” (Id. at 865.) Dr. Keefer’s overall
assessment of plaintiff is that she suffers
from neck pain arising from a motor vehicle
accident, and also, cervical radiculopathy.

the



8

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 9 of 26 PageID #: 1301

Ex. J, at 971-82, 986; Def.’s Mot. for Summ.
J. Ex. K, at 1013-17.)7

E. The Independent Medical Examiner

(2)

his

summarized

and glaucoma;

In a letter dated May 16, 2011, Dr.
Thampi
conclusions
following an April 28, 2011 examination of
plaintiff. (See Def.’s Mot. for Summ. J. Ex.
J, at 971-82.) Specifically, Dr. Thampi: (1)
noted plaintiff’s various medical conditions,
including neck pain following a November
2008 car accident, carpal tunnel syndrome,
in both hands,
tingling and numbness
thyroiditis,
listed
plaintiff’s medications; (3) detailed
the
results of his physical examination of
plaintiff; (4) set forth all of the information
in the medical record that he had reviewed;
and (5) stated his conclusions concerning
plaintiff’s condition. (Id.) Regarding the
state of plaintiff’s cervical spine, Dr.
Thampi concluded that the cervical spine’s
“range of motion is within normal limits.
Spurlings sign is negative. Facet tenderness
is negative. Myofascial tenderness is noted
bilaterally. Sensation examination is within
normal limits. Manual muscle testing is
within normal limits. Deep tendon reflexes
are psysiologic. No pathologic reflexes were
identified.” (Id. at 973.) Dr. Thampi found
similarly as to plaintiff’s lumbar spine,
noting that plaintiff “is able to flex the
lumbar spine to the level of the knees.
Straight leg raising test is negative. Lumbar
facet tenderness is negative. Myofascial
tenderness is negative.” (Id. at 973-74.)
Based on this examination and on all of the
medical information before him, Dr. Thampi
concluded that plaintiff could perform full-
time
including
“Continuous[]
sitting,

7 Dr. Thampi was provided with physician reports,
along with numerous notes from plaintiff and
unidentified physicians, laboratory test results, and
physical therapy notes. (See Def.’s Mot. for Summ. J.
Ex. K, at 974-76.)

67%-100%)”

sedentary

work,



9

standing, walking, bending at the waist,
squatting at the knees, using foot controls,
and driving. (Id. at 982-83.) In that same
evaluation, Dr. Thampi also observed
plaintiff as having “Occasional 33% or
Less” ability in both her right and left upper
extremities for “simple grasping, reach[ing]
above mid chest, reach[ing] at waist/desk
level, pushing/pulling, fine manipulation,
feeling/tactile sensation.” (Id. at 984.)

On June 10, 2011, Dr. Thampi issued a
subsequent evaluation; his opinion remained
the same after reviewing additional records.
(See Def.’s Mot. for Summ. J. Ex. K, at
1015 (stating that “[plaintiff’s] capacity to
work will be the same as I had documented
[previously,] . . .which is a sedentary level
with occasional use of the right hand”); see
also id. at 1013-17.)

the

reports,

Having completed

independent
medical examination, and on reviewing the
entire administrative record, including the
(see
aforementioned physician
Def.’s Mot. for Summ. J. Ex E, at 493;
Def.’s Mot. for Summ. J. Ex. F, at 530-31;
Def.’s Mot. for Summ. J. Ex. G, at 631-32;
Def.’s Mot. for Summ. J. Ex. H, at 722-23),
defendant decided that its initial benefits
determination
the cancellation of
benefits to plaintiff) should be upheld. (See
Def.’s Mot. for Summ. J. Ex. E, at 489-98.)
Defendant issued this final claim decision
July 7, 2011. (See Def.’s 56.1 ¶ 40, 46.)

(i.e.,

F. Social Security Administration

Issues an Award

In between Dr. Thampi’s initial May 16,
2011 evaluation and his subsequent June 10,
2011 evaluation, an event transpired: the
SSA awarded plaintiff social security
disability (“SSD”) benefits. (See Pl.’s 56.1
¶ 29; see also Def.’s Mot. for Summ. J. Ex.
K, at 1007-12.) According to plaintiff, this
award was never submitted to Dr. Thampi or

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 10 of 26 PageID #: 1302

in

involved

any other physician
the
evaluation of her claim. (See Pl.’s 56.1
¶ 30.) The Administrative Record does not
indicate otherwise, nor does defendant
contest this point. Despite this award of SSD
benefits, defendant ultimately decided to
uphold its decision regarding plaintiff’s
benefits on July 7, 2011. (See Def.’s Mot.
for Summ. J. Ex. E, at 489-98.) The details
regarding this determination will be set forth
infra.

II. PROCEDURAL HISTORY

a

requested

Plaintiff filed her complaint on July 3,
2012. On July 20, 2012, defendant answered
January 7, 2013,
the complaint. On
defendant
pre-motion
conference in anticipation of moving for
summary judgment. The Court held the
conference on January 15, 2013, at which
time a briefing schedule was set. In
accordance with the schedule, defendant
submitted its motion for summary judgment
on February 15, 2013. Plaintiff opposed the
motion on March 15, 2013, and also filed a
cross-motion for summary judgment. On
April 8, 2013, defendant requested an
extension of time in which to file its reply;
the Court granted the request, and defendant
filed its reply, as well as its opposition to
plaintiff’s
summary
judgment, that same day. On April 22, 2013,
plaintiff filed her reply in support of her
cross-motion. Although
parties
submitted Rule 56.1 Statements with their
initial motions,
submitted
additional statements on April 22, 2013 (for
plaintiff) and May 10, 2013 (for defendant).
Oral argument was held on May 30, 2013.
The Court has fully considered the parties’
submissions.

cross-motion

they

also

the

for







10



III. STANDARD OF REVIEW

A. Summary Judgment

is entitled

depositions,

to summary

The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is 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). The moving
party bears the burden of showing that he or
she
judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish
the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).


eschew

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show
is some

there

that

and

to

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 11 of 26 PageID #: 1303

to

for

issue

is a genuine

metaphysical doubt as
the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
trial.’”
there
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary
judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not
rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

B. ERISA and Administrative Review



authority

discretionary

A denial of benefits under ERISA “‘is to
be reviewed under a de novo standard unless
the benefit plan gives the administrator or
to
fiduciary
determine eligibility for benefits or
to
construe the terms of the plan.’” Krauss v.
Oxford Health Plans, Inc., 517 F.3d 614,
622 (2d Cir. 2008) (quoting Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115,
(1989)). “If the insurer establishes that it has
such discretion, the benefits decision is



11

reviewed under the arbitrary and capricious
standard.” Id.; see also Celardo v. GNY
Auto. Dealers Health & Welfare Trust, 318
F.3d 142, 145 (2d Cir. 2003) (“The Supreme
Court . . . has indicated that plans investing
the administrator with broad discretionary
authority
to determine eligibility are
reviewed under the arbitrary and capricious
standard.”). In this case, there is no dispute
that defendant had discretion
to make
benefit determinations. Indeed, the Plan’s
express language states that defendant held
discretion
the Plan’s
provisions and to make benefit eligibility
determinations. (See Def.’s Mot. for Summ.
J.” Ex. B, at 15 (stating that “Reliance
Standard Life Insurance Company shall
serve as the claims review fiduciary,” and
that it “has the discretionary authority to
interpret the Plan and the insurance policy
and to determine eligibility for benefits”).)
Thus, the arbitrary and capricious standard
of review applies.

to both

interpret


For an administrator’s decision to be
deemed arbitrary and capricious, it must
have been “‘without reason, unsupported by
substantial evidence or erroneous as a matter
of law.’” Krauss, 517 F.3d at 623 (quoting
Fay v. Oxford Health Plan, 287 F.3d 96, 104
(2d Cir. 2002)). Courts have clarified
“substantial evidence” as “‘such evidence
that a reasonable mind might accept as
adequate to support the conclusion reached
by the [administrator and] . . . requires more
than
a
preponderance.’” Celardo, 318 F.3d at 146
(alteration in original) (quoting Miller v.
United Welfare Fund, 72 F.3d 1066, 1072
(2d Cir. 1995)). Thus, the extent of judicial
review when applying the arbitrary and
capricious standard is, most simply stated,
narrow. Id.; see also Miller, 72 F.3d at 1070
(“When an employee benefit plan grants a
plan fiduciary discretionary authority to
construe the terms of the plan, a district

scintilla

than

less

but

a

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 12 of 26 PageID #: 1304

court must review deferentially a denial of
benefits . . . .”); Lee v. Aetna Life & Cas.
Ins. Co., No. 05 Civ. 2960(PAC), 2007 WL
1541009, at *4, (S.D.N.Y. May 24, 2007)
(“Under
the arbitrary and capricious
standard of review, [the insurer’s] decision
to terminate benefits is entitled to deference
. . . .”); Butler v. N.Y. Times Co., No. 03 Civ.
5978(RCC), 2007 WL 703928, at *3
(S.D.N.Y. Mar. 7, 2007) (“‘Under
the
‘arbitrary and capricious’ standard the scope
of review is a narrow one. A reviewing court
must consider whether the decision was
based on a consideration of the relevant
factors and whether there has been a clear
judgment.’” (quoting Bowman
error of
Transp. Inc. v. Ark. Best Freight Sys., 419
U.S. 281, 285 (1974))); Greenberg v. Unum
Life
Ins. Co. of Am., No. CV–03–
1396(CPS), 2006 WL 842395, at *8
(E.D.N.Y. Mar. 27, 2006) (“Decisions of the
plan administrator are accorded great
deference:
the court may not upset a
reasonable
the
administrator . . . . Accordingly, it is
inappropriate in this setting for the trial
judge to substitute his judgment for that of
the plan administrator.”
(citations and
internal quotation marks omitted)).


interpretation

instructions

Generally, if a district court “concludes
that [a Plan administrator’s] decision was
arbitrary and capricious, it must remand to
[the administrator] with
to
consider additional evidence unless no new
evidence could produce a
reasonable
conclusion permitting denial [or granting] of
the claim or remand would otherwise be a
‘useless formality.’” Miller, 72 F.3d at 1071
(quoting Wardle v. Cent. States, Se. & Sw.
Areas Pension Fund, 627 F.2d 820, 828 (7th
Cir. 1980)). A remand is “inappropriate
‘where
the
administrative record was incomplete, but
that a denial of benefits based on the record
was unreasonable.’” Zervos v. Verizon N.Y.,

the difficulty

is not

that

by



12

Inc., 277 F.3d 635, 648 (2d Cir. 2002)
(quoting Zuckerbrod v. Phoenix Mut. Life
Ins. Co., 78 F.3d 46, 51 n.4 (2d Cir. 1996)).

of

for

the

that

In sum, the Court’s sole role here is to
determine whether defendant’s denial of
benefits to plaintiff was without reason,
unsupported by substantial evidence, or
erroneous as a matter of law. See Kinstler v.
First Reliance Standard Life Ins. Co., 181
F.3d 243, 249 (2d Cir. 1999). The Court
remains mindful that, under this deferential
standard, it cannot “substitute [its] own
judgment
[Plan
administrator’s] as if [it] were considering
the issue of eligibility anew.” Pagan v.
NYNEX Pension Plan, 52 F.3d 438, 442 (2d
Cir. 1995). Further, “[w]here both the plan
administrator and a spurned claimant ‘offer
rational, though conflicting, interpretations
of plan provisions, the [administrator’s]
interpretation must be allowed to control.’”
Pulvers v. First UNUM Life Ins. Co., 210
F.3d 89, 92-93 (2d Cir. 2000) (alteration in
v. First
original)
Manhattan Co. Thrift Plan & Trust, 55 F.3d
109, 112 (2d Cir. 1995)). Lastly, the Court
acknowledges that the scope of its review
“is limited to the administrative record.”
Miller, 72 F.3d at 1071.

(quoting O’Shea

C. The Role that Social Security Disability

Benefits Play in the Context of

Assessing ERISA Benefits

considered by


In the context of a benefits eligibility
a decision – whether
determination,
favorable or otherwise – by the SSA should
be
the ERISA plan
administrator as the SSA “is an objective
governmental body
that undertakes a
thorough review of applicants’ eligibility for
benefits, and has neither the incentive to
disperse benefits liberally, nor a reputation
of overindulging applicants.” Alfano v.
Cigna Life Ins. Co. of N.Y., No. 07-CV-
9661(GEL), 2009 WL 222351, at *17

Case 2:12-cv-03312-JFB-ARL Document 23 Filed 09/20/13 Page 13 of 26 PageID #: 1305

is

far

(S.D.N.Y. Jan. 30, 2009). However, while
such a determination is surely relevant, it is
not conclusive; in other words, it “is but one
piece of evidence, and
from
determinative” because “Social Security
determinations are not binding on ERISA
plans, and should not have unintended side
effects on such plans not contemplated by
the parties in initiating the plans, or by
Congress in creating the Social Security
disability structure.” Billinger v. Bell Atl.,
240 F. Supp. 2d 274, 285 (S.D.N.Y. 2003)
(quoting Pagan v. Nynex Pension Plan, 846
F. Supp. 19, 21 (S.D.N.Y. 1994), aff’d, 52
F.3d 438 (2d Cir. 1995)).

or

of

arbitrary

to deny benefits

Thus, where “a plan administrator makes
a determination contrary to that of the SSA,
a court may consider the contradiction as
evidence
capricious
behavior.” Miles v. Principal Life Ins., 831
F. Supp. 2d 767, 776 (S.D.N.Y. 2011);
VanWright v. First Unum Life Ins. Co., 740
F. Supp. 2d 397, 402 (S.D.N.Y. 2010).
However, courts must also recognize that
“although a favorable determination by the
SSA certainly supports a disability claim, it
is not controlling where the administrator’s
decision
is otherwise
supported by substantial evidence.” Fortune
v. Grp. Long Term Disability Plan, 637 F.
Supp. 2d 132, 144 (E.D.N.Y. 2009). In
short, a reviewing court should carefully
consider
in
assessing whether a benefits decision by a
plan
and
capricious, but it is by no means bound by it.
See Paese v. Hartford Life & Accident Ins.
Co., 449 F.3d 435, 443 (2d Cir. 2006)
(stating that a court is not “obligated to
ignore the SSA’s determination, especially if
the district court [finds] the determination
probative, if not necessarily dispositive”).

the SSA’s determination

administrator

arbitrary

is

Moreover, when considering an ERISA
Plan administrator’s benefits determination
along with an SSA’s benefits decision, it is



13

those of an

important for a court to keep in mind that
“the standard for reviewing a claim differs
between the SSA and ERISA.” Miles, 831 F.
Supp. 2d at 776; see also Carroll v.
Hartford Life & Acc. Ins. Co., No. 11-cv-
1009(VLB), 2013 WL 1296487, at *25 (D.
Conn. Mar. 28, 2013) (acknowledging the
“notable difference between a Social
Security Disability benefit review and a
review of a denial of a benefit under
ERISA”). For instance, “[u]nlike in an SSA
determination, an ERISA plan administrator
need not accord special weight to the
findings of a claimant’s treating physician
over
independent medical
examiner.” Miles, 831 F. Supp. 2d at 776
(citing Suarato v. Bldg. Servs. 32BJ Pension
Fund, 554 F. Supp. 2d 399, 423 n.35
(S.D.N.Y. 2008)). That being said, neither
an ERISA plan administrator nor the SSA
need defer to a treating physician’s opinion
“which is not well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and consistent with the other
substantial evidence
the record and
instead is based solely on conjecture and the
patient’s subjective complaints.” Carroll,
2013 WL 1