United States District Court, D. Connecticut
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer United States District Judge
an ERISA case about what it means for an insurance company to
give a “full and fair” review of a claim for
disability benefits. The defendant insurance company
terminated plaintiff's disability benefits, once on an
initial review and then again after plaintiff filed for an
internal appeal review. But while the internal appeal was
pending, the insurance company hired a doctor to examine
plaintiff, and the doctor then sent the insurance company a
report of his findings. Despite plaintiff's request, the
insurance company did not give plaintiff a copy of the
doctor's report, much less allow plaintiff to respond to
the report. The company then denied plaintiff's appeal,
while relying heavily on the doctor's report to do so.
similar factual contexts, federal courts nationwide have
split on the issue of whether an ERISA plan or administrator
may procure new medical evidence while it is considering a
claimant's appeal and then in turn use that evidence to
deny the appeal without first allowing the claimant to see or
try to rebut it. The Second Circuit has yet to decide this
on my review of the somewhat complicated regulation that
governs here as well as the precedent on both sides, I am
left persuaded that the defendant insurance company denied
plaintiff a full and fair review. Accordingly, I will grant
plaintiff's motion for summary judgment and remand the
case to the defendant insurance company to conduct a full and
Patricia Hughes is a registered nurse who worked at
Children's Healthcare of Atlanta. Doc. #50-1 at 3.
Beginning in January 2011, she was treated by a specialist,
Dr. Karen Hoffman, for vertigo and Meniere's disease (an
inner ear disorder causing vertigo). Ibid.
Hughes's condition progressively worsened as documented
by Dr. Hoffman until late 2012, when she suffered constant
dizziness and disequilibrium and was reported as unable to
walk, drive, or work. Id. at 3-4.
Hartford Life and Accident Insurance Company administers and
insures the disability benefit plan under which Hughes
received coverage through her employer. Id. at 2.
Hartford Life approved Hughes's claim for disability and
began paying benefits as of November 2012. Id. at 4.
briefly returned to part-time work (two hours per day) in
early 2013 but stopped by March 2013. She continued to
experience setbacks including multiple migraine headaches for
which she saw numerous medical specialists through 2013 and
2014. Id. at 5-8. In 2014, she got into two car
accidents when she drove into the cars in front of her. Her
doctors attributed the accidents to insomnia and vertigo.
Ibid. That same year, she reported to Hartford Life
that her headaches had decreased to approximately three per
Life decided to engage in covert video surveillance of Hughes
in April 2016. She was seen walking her dog, engaging in yard
work, and gardening for about an hour. Id. at 8-9.
Hartford Life then interviewed Hughes in May 2016, and it
forwarded the surveillance footage to Dr. Hoffman to seek a
further opinion. Hartford Life also consulted Hughes's
neurologist, psychiatrist, chiropractor, and vestibular
therapist, and it sent the footage and Hughes's file to
the Medical Consultants Network for an independent medical
evaluation, which was conducted by neurologist Joseph Jares.
Id. at 10-13; Doc. #39-10 at 3-12.
asked if Hughes was capable of “activity for 40 hours a
week: primarily seated with some standing/walking throughout
the day, ” along with some carrying limitations and the
opportunity to change positions as needed, Dr. Hoffman
responded that she was. However, she noted that Hughes
“will not be able to drive when she is having vertigo,
” and that reading and using the computer for long
periods of time continue to cause “disequilibrium and
dizziness.” Doc. #50-1 at 11.
Hoffman later clarified her response in an interview with
Hughes's attorney, which was submitted to Hartford Life
on appeal. Dr. Hoffman stated that while she had noted some
improvement in Hughes's condition in 2016, she
“didn't feel that [Hughes] was able to improve
enough to go back to work.” Doc. #39-6 at 115.
Life asked Hughes's other providers if they recommended
any activity limitations stemming from the conditions they
were treating. Doc. #39-2 at 6; Doc. #39-10 at 64-75.
Hughes's neurologist checked the “no” box in
response, adding that Hughes “can't bend over
frequently” and needs breaks throughout the day. Doc.
#50-1 at 12. Her psychiatrist also checked “no”
and added that Hughes is “physically limited and
secondarily limited” by the depression that stems from
her physical problems. Id. at 13. Her chiropractor
did not suggest any activity limitations, but he noted that
he had not seen her in several months. Ibid. Her
vestibular therapist checked “yes, ” noting that
Hughes required the following limitations: “limited
reaching, turning, lifting/carrying, head movements, bending,
climbing, balancing, eye movements, pushing/pulling, walking
on uneven surfaces, operating machinery.”
Life interviewed Hughes on May 12, 2016. Id. at 10;
Doc. #39-10 at 33-36. According to the interviewer's
notes, Hughes reported being able to shop at a large store,
though she said that the noise sometimes exacerbates her
symptoms and that her partner usually accompanies her to the
store. She said she could walk up and down stairs but only at
a slow pace using the rail. She reported traveling from
Georgia to Indiana for a family event but said the noise and
movement in the airport caused her symptoms to resurface,
requiring the use of a wheelchair. She said she believed she
would “be able to return to work at some time.”
Id. at 35.
Jares also issued a report. He did not dispute that Hughes
suffered from a vestibular disorder, but he stated that,
based on his observation of the surveillance footage,
“she could sit without restriction; stand and walk for
up to an hour per day; and use a computer for up to eight
hours a day, but for no more than thirty minutes at a time
with a two-to-three minute break.” Doc. #50-1 at 13-15.
Life terminated Hughes's benefits on October 6, 2016.
Id. at 16. The letter stated that “[w]e have
completed our review of your claim for benefits and have
determined that you do not meet the policy definition of
Disability beyond 10/05/2016.” Doc. #39-4 at 74. It
further advised that “the Employee Retirement Income
Security Act of 1974 (ERISA) gives you the right to appeal
our decision and receive a full and fair review.”
Id. at 78. The letter also stated that “[y]ou
are entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records[,
] and other information relevant to your claim.”
March 28, 2017, Hughes filed an administrative appeal of the
decision, arguing that Hartford Life had misconstrued her
medical records and the surveillance footage and
fundamentally misunderstood the nature of her disability. She
wrote that her symptoms “frequently and unpredictably
render her incapable of any productive activity, at work or
at home, ” such that “it is impossible for her to
reliably and consistently perform the tasks required of any
full-time employee.” Doc. #39-6 at 126. While on some
days she can engage in activities like walking her dog,
gardening, or reading, on bad days she has “no
tolerance for any activities and may be in bed all
day.” Id. at 61-62.
appeals unit at Hartford Life forwarded almost all of the
records in her file to the Medical Consultants Network for an
independent medical evaluation, with directions for the
reviewer to “comment on [Hughes's] overall
functionality” and to consider her objective
complaints, “the impact of her medications on her
ability to function in the workplace, ” and her ability
to sustain work on a consistent basis. Doc. #39-4 at 62. Dr.
Arthur Schiff, a neurologist, was assigned to the case.
April 25, 2017, Hartford Life wrote a letter to Hughes
advising her that it had scheduled an appointment for her to
be examined by Dr. Schiff on May 11, 2017. Doc. #39-5 at 434.
The letter advised that Dr. Schiff would send a report of his
examination to Hartford Life. Ibid.
examining Hughes and reviewing her file, Dr. Schiff sent a
report to Hartford Life on May 23, 2017. Doc. #39-5 at 425.
On the basis of various neurological tests, Dr. Schiff
concluded that the results were normal. He concluded that
Hughes suffered from tinnitus, dizziness, and giddiness, and
that her diagnosis of vestibular dysfunction was inconsistent
with the normal results of her neurological examinations and
the physical movements observed in person and in the
surveillance footage. Doc. #50-1 at 21; Doc. #39-5 at 431.
asked Hartford Life for a copy of Dr. Schiff's report so
that she could respond to it before Hartford Life ruled on
her claim. Doc. #41-2 at 2. But Hartford Life did not send
her the report. Hughes asked again, and still Hartford Life
did not send it. Ibid.
Life then denied Hughes's appeal on June 29, 2017. The
appeal denial letter devoted seven paragraphs to Dr.
Schiff's report and repeatedly used it to refute
Hughes's statements, such as her claim that turning her
head side-to-side exacerbates her vertigo and that her
migraines interfere with her ability to work. Doc. #39-4 at
62-63. Only after denying her appeal did Hartford Life give
Hughes a copy of Dr. Schiff's report. Doc. #41-2 at 3.
then filed an appeal to this Court pursuant to ERISA, 29
U.S.C. § 1001 et seq. The parties have
cross-moved for summary judgment. They have agreed to my
consideration of the Administrative Record but disagree about
whether I may consider four post-appeal rebuttal affidavits
that Hughes has submitted in response to Dr. Schiff's
report. Doc. #54; see also Docs. #41-4 through 41-7
(copies of the affidavits). It is Hartford Life's
position that the Court should not consider these affidavits
because they are not part of the administrative record. Doc.
#49 at 19.
affidavits are from Hughes herself, her long-time partner,
her doctor, and her occupational therapist. Dr. Hoffman, who
had treated Hughes since 2011, Doc. #50-1 at 3, states in her
affidavit that the “inconsistencies” that Schiff
noted in his report reflect precisely the variability in
function she would expect from a patient with a serious
vestibular disorder, Doc. #41-4 at 3. “The nature of
the vestibular symptoms is that they are episodic-a patient
could be feeling fine one day and the next day develop rotary
vertigo so bad it causes the patient to hold onto the wall to
walk.” Ibid. She states that a neurologist not
trained in vestibular disorders was the wrong specialist to
conduct the review, and that “Dr. Schiff did not
perform any of the tests which actually have been
historically abnormal for Ms. Hughes including audiogram,
video ENG, or posturography, so he seems to have omitted the
most relevant data from his examination.”
Ibid. She concludes that “it remains my
opinion that Ms. Hughes's vestibular symptoms are too
frequent and too severe to allow her to be a reliably
productive employee in any work setting, no matter how light,
” and that working would exacerbate Hughes's
already debilitating symptoms. Id. at 4.
partner, Jeannie Johnson, was present during Dr. Schiff's
examination. She states in her affidavit that the exam
appeared “very elementary, ” “limited,
” and “rushed, ” compared to examinations
she has observed over the course of her career as a nurse.
Doc. #41-7 at 2.
affidavit of Gaye Cronin, Hughes's vestibular therapist,
echoes Dr. Hoffman's statement that Dr. Schiff failed to
conduct many tests that she would expect of a comprehensive
examination of someone with Hughes's symptoms and that
have consistently yielded abnormal results from Hughes in the
past. Doc. #41-5 at 4-7. “The entire picture is
consistent, ” she states, referring to Hughes's
disability. Id. at 8. “For the last
several years Ms. Hughes's symptoms have been so frequent
and unpredictable as to prevent even reliable part time
work.” Id. at 9. A job requiring
transportation, exposure to movement, bright lighting, or
computers would likely cause Hughes's “episodes of
incapacitation [to be] much more frequent and severe.”
alleges that, had Hartford Life disclosed Dr. Schiff's
report before making a final decision on the appeal, Hughes
would have been able to submit these rebuttal affidavits for
consideration as part of the appeal. Doc. #41-2 at 3; Doc.
#41-4 at 2 (affidavit of Dr. Hoffman, stating that “if
I had been given the opportunity in 2017 [to review and