Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spears v. Liberty Life Assurance Company of Boston

United States District Court, D. Connecticut

September 30, 2019

HALEY SPEARS, PLAINTIFF,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON; THE GROUP LIFE INSURANCE AND DISABILITY PLAN OF UNITED TECHNOLOGIES CORPORATION, aka THE UTC CHOICE INTEGRATED DISABILITY BENEFIT PROGRAM, DEFENDANTS.

          MEMORANDUM OF DECISION GRANTING [ECF NO. 138] PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING [ECF NO. 144] DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

          Hon. Vanessa L. Bryant United States District Judge

         This action is an appeal of a denial of long-term disability benefits brought by the Plaintiff, Haley Spears (“Spears”), against the United Technologies Choice Integrated Disability Benefit Program (the “Plan”), sponsored by her former employer, United Technologies Corporation (UTC), and the plan administrator, Liberty Life Assurance Company of Boston (“Liberty”), acting pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”).[1]

         Spears alleges that the Defendants improperly denied her claim for Long Term Disability (“LTD”) benefits under the Plan, in violation of the provisions of 29 C.F.R. § 2560.503-1, which governs processing and handling of claims for ERISA plan benefits.

         On April 28, 2014, Spears and the Defendants, respectively, filed motions for summary judgment and for judgment on the administrative record. [ECF No. 82, 85].

         In a Memorandum of Decision dated March 31, 2015, [ECF No. 103] (the “Remand Order”), the Court granted, in part, Spears’ Motion for Summary Judgment, denied Defendants’ Motion for Judgment on the Administrative Record, and remanded the case to the plan administrator for further proceedings in accordance with the Court’s Order. The Court entered Judgment for Spears the same day. [ECF No. 104].

         I. The Court’s March 31, 2015 Remand Order

         The Court’s Remand Order first recounted relevant background facts, with which familiarity is presumed; a brief summary is presented here. Spears worked as an executive administrative assistant at Pratt & Whitney, (”P&W”) a division of United Technologies Corporation (“UTC”); her job responsibilities included making travel arrangements, filing documents, and assisting in preparing, gathering and maintaining expense reports. [ECF No. 103 at 3]. Spears was a good worker before adverse medical symptoms appeared, but beginning in the spring of 2008, she began to experience symptoms of ill health. Id. at 3-4. The symptoms started as nausea and abdominal pain, but later Spears began to suffer from migraine headaches, including blurred vision and an inability to focus. Id. at 4. On August 28, 2008, Spears went to the emergency room at St. Francis Hospital for a migraine headache. While there, Spears underwent a CT scan, followed by an MRI on September 2, 2008, both of which were abnormal. Id. at 4-5.

         Spears’ migraines and related symptoms persisted, and shortly after this MRI, in September 2008, Spears stopped working and applied for Short Term Disability (“STD”) benefits. Id. at 5. Liberty determined Spears was eligible for STD, and paid Spears STD benefits based on her persistent symptoms. Id.

         Spears underwent another MRI on October 6, 2008, which was abnormal. She was treated by a number of physicians in the fall of 2008, some of whom submitted letters to Liberty restricting Spears’ work activities. Id. at 5-7.

         Liberty referred Spears’ STD claim for peer review by Dr. Potts, a neurologist. After consulting with Spears’ treating physicians whose treatment notes indicated Spears suffered from “severe and persistent headaches, ” Dr. Potts’ December 18, 2008 report concluded Spears suffered from “nearly daily headaches, the severity of which is likely to preclude her from working.” Id. at 7. Liberty extended Spears’ STD benefits through January 6, 2009. Id. at 8.

         Spears returned to work part-time on January 8, 2009, and eventually Liberty extended Spears’ STD benefits through February 8, 2019, but refused to extend them further. On January 29, 2009, Liberty also denied Spears Long Term Disability (“LTD”) benefits because Spears’ expected full-time return to work on February 9 would result in her failure to satisfy the Plan’s Elimination Period requirement. The Elimination Period requirement mandated that Spears had to be disabled for the entire Elimination Period, which ran from September 27, 2008 until March 27, 2009. Id. at 10. Spears never did return to work full-time and worked part-time through March 24, 2009, when she quit working altogether. Id. at 11.

         The Remand Order Chronicled Spears’ numerous appeals and the processes Liberty employed to resolve them. During the appeals process, Spears continued to submit medical information to Liberty, as well as other relevant information, such as:

• A letter from Connecticut Assistant Attorney General Hulin stating that a medical peer review report by Dr. Silverman, which Liberty relied on in denying benefits to Spears, was not “supported by the evidence.” Id. at 21.
• A notice from the Connecticut Department of Social Services stating that Spears was “unemployable” for a period of at least six months due to being disabled. Id. at 25 n.16.
• A Social Security Administration (“SSA”) determination, in which an administrative law judge concluded that Spears was disabled as of August 31, 2008, that her part-time return to work in January 2009 was an unsuccessful work attempt, and that she was properly diagnosed as suffering from Lyme disease in February 2009. Id. at 30.
• An August 2010 notice from Liberty denying Spears life insurance coverage. Id. at 25.

         Shortly after Liberty had completed its third review denying Spears’ disability claim, on October 27, 2010, Spears’ employer, UTC, contacted Liberty and requested that Liberty override its STD determination and issue Spears additional STD benefits, through the remainder of the eligibility period (March 27, 2009). Id. at 29. Accordingly, Spears received the maximum level of STD benefits for the period during which she was eligible. UTC also requested Liberty re-open its LTD evaluation, which Liberty did. However, this review, like all the others, resulted in a denial of disability benefits. Id. at 29-31.

         The Remand Order next discussed the details of Spears’ disability “Plan, ” with which familiarity is once again presumed. Of particular relevance to this decision, the Remand Order stated the Plan provided for STD benefits, which were paid for by UTC, and LTD benefits, which were paid by a group insurance policy underwritten by Liberty. Id. at 32-35.

         Next, the Remand Order noted the administration of both disability plans was governed by ERISA and discussed the applicable claim administration requirements. Principally the Order stated the ERISA claim administration processing “procedures must provide for ‘a full and fair review of the claim and the adverse benefit determination.’” Id. at 36 (quoting 29 C.F.R. § 2560.503-1(h)(1)). To do this, a Plan must:

(1) provide claimants the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits. 29 C.F.R. §2560.503-1(h)(2)(ii); (2) provide a claimant, upon request and free of charge, reasonable access to, and copies of all documents and other information relevant to the claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8)[2] of this section. 29 C.F.R. §2560.503-1(h)(2)(iii); (3) provide for a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. 29 C.F.R. §2560.503-1(h)(2)(iv); (4) provide for a review that does not afford deference to the initial adverse benefit determination and that is conducted by an appropriate named fiduciary of the plan who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the subordinate of such individual. 29 C.F.R. §2560.503-1(h)(3)(ii); (5) provide for the identification of medical or vocational experts whose advice was obtained on behalf of the plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination. 29 C.F.R. §2560.503- 1(h)(3)(iv); and (6) provide that the health care professional engaged for purposes of a consultation under paragraph (h)(3)(iii) of this section shall be an individual who is neither an individual who was consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual. 29 C.F.R. §2560.503-1(h)(3)(v).

[ECF No. 103 at 36-37].

         In its final section before analyzing Liberty’s conduct in denying Spears’ disability claims, the Court, in the Remand Order, set forth the proper legal standards, and found that because “Liberty was vested with ‘the authority, in its sole discretion, to construe the terms of th[e] policy and to determine benefit eligibility [t]hereunder, ’ and its determinations of benefit eligibility were deemed ‘conclusive and binding, ’” the Court was mandated to employ an arbitrary and capricious standard of review in assessing Liberty’s performance. Id. at 40-41. The Court noted that the “Second Circuit has held that, in certain circumstances, a plan administrator’s failure to comply with the ERISA claims regulations requires courts to eschew the more deferential arbitrary and capricious review in favor of a more searching de novo review, ” but explained that the question of whether a plan administrator had to fully or only “substantially” comply with ERISA claims regulations “remain[ed an] open [question], ” and that most courts leaned toward a substantial compliance standard, and only shifted to de novo review “if the plan administrator acted in a dilatory or bad faith manner.” Id. at 41-42. Although Spears argued numerous grounds for finding Liberty violated ERISA claims procedures, which Spears argued compelled the Court to review Liberty’s actions de novo, the Court declined to do so because it found no “dilatory conduct” nor evidence that Liberty “failed to reach a decision” or “provide some explanation for it.” Id. at 43-44.

         In commencing its analysis of Liberty’s performance in denying Spears’ disability claims, the Court noted Liberty had a conflict of interest because it decides whether to pay claims it underwrites and is obligated to pay. Consequently, it has an incentive to deny claims because the denial of claims would positively impact its profitability. Id. at 49. The Court cited Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105, 108 (2008), for the idea that an ERISA fiduciary’s conflict of interest is more important when the “circumstances suggest a higher likelihood that it affected the benefits decision, ” and found that because of a “number of serious ‘decisionmaking deficiencies’ in the course of Liberty’s review of Spears’ claim, ” the Court was obliged to afford “some weight to Liberty’s conflict of interest.” Id. at 50 (quoting Durakovic v. Bldg. Serv., 609 F.3d 133, 140 (2d Cir. 2010)).

         In the Remand Order, the Court found that Liberty’s handling of Spears’ claim for Short Term Disability (“STD”) and LTD benefits was arbitrary and capricious. The Court so found because it was “deeply disturbed by the pervasive errors underlying Liberty’s review of her claim, despite its many opportunities to perform a proper review.” Id. at 77-78. Specifically, the Court found that “each and every peer review report upon which Liberty relied to deny STD and LTD benefits suffered from numerous and serious flaws, which render[ed] them insufficient to supply the substantial evidence necessary to support Liberty’s denial decisions.” Id. at 53. The peer review report errors included the following:

• Liberty changed initial peer reviewers midstream from Dr. Potts, who had issued a finding favorable to Spears, to Dr. Taiwo, who did not, without explanation, which the Court found “suspect.” Id. at 54. Moreover, Liberty “asked Dr. Taiwo to answer an irrelevant question, ” namely, whether Spears’ medical information supported “ongoing restrictions and limitations” from April 23, 2009 onward, when the key question was whether Spears’ medical information supported Liberty’s denial of benefits during Spears’ “Elimination Period, ” which ran from September 27, 2008 to March 27, 2009.[3]Id. at 55 (emphasis in original). As a result, “nowhere in [Dr. Taiwo’s] four-page report d[id] he consider Spears’ condition prior to March 24, 2009, . . . “[n]or, based on the question he was asked, should he have.” Id. at 56 (emphasis in original). In addition, Dr. Taiwo failed to review numerous relevant medical records from Spears’ treating physicians, and “offered the wholly unsubstantiated conclusion that “[Spears’] medical records . . . do not support any specific limitations or restrictions, ” despite Dr. Taiwo being “well aware” that Spears had received STD benefits for four months after Liberty had found her disabled during a portion of the Elimination Period. Id. at 57-59. Finally, Liberty misled Spears in its benefits denial letter by stating that Dr, Taiwo’s review “d[id] not support any restrictions and limitations . . . during the period of February 9, 2009[4] though the present date, ” despite Dr. Taiwo not addressing any period before April 23, 2009. Id. at 56-57.
• After Spears appealed Liberty’s initial denial, Liberty referred Spears’ case to Dr. Silverman, whose November 23, 2009 report “suffer[ed] from two fatal defects.” Id. at 63. First, the bulk of Dr. Silverman’s report was devoted to whether Spears suffered from Lyme disease, which made sense given the questions Liberty had asked Dr. Silverman, which pertained almost exclusively to whether Spears had Lyme disease or not. Id. at 63-64. But this was “not the relevant question, ” because what was relevant was “whether or not Spears’ condition rendered her disabled within the meaning of the STD Plan, ” regardless of what caused her disability. Id. at 64. Second, Dr. Silverman used an improperly high standard for determining whether Spears was disabled, namely, whether there was “clear-cut evidence of impairment, ” which undisputedly was not required by either Spears’ STD or LTD policies. Id. at 65. Additionally, Dr. Silverman’s report, like Dr. Taiwo’s, failed to “reconcile Liberty’s finding that Spears was disabled at the beginning of the Elimination Period with its conclusion that she was no longer disabled, ” which was “an incongruity which permeated all of Liberty’s findings and those of its peer reviewers. Id. at 68-69.
• After granting Spears a second appeal, Liberty referred Spears’ file, which now included the letter from Charles Hulin, Assistant Attorney General of the State of Connecticut, criticizing Dr. Silverman’s report and stating that Liberty’s denial “d[id] not appear to be supported by the evidence, ” back to Dr. Silverman. Id. at 70. The referral back to Dr. Silverman “directly violated the ERISA regulations, 29 CFR § 2560.503-1(h)(3)(v), [5] and virtually assured that Spears would not receive a full and fair review, ” because it was “nearly inconceivable that a consultant whose analysis and conclusion has been called into question by a state prosecutorial office would do anything other than defend that conclusion, particularly when Liberty asked him to ‘comment on the assertion by Assistant Attorney General Hulin’ and whether ‘this information alter[ed] [the] prior assessment.’” Id. at 70-71. Finally, Dr. Silverman’s second report “d[id] not even address whether Spears was disabled within the meaning of the STD Plan” because “Dr. Silverman addressed Spears’ diagnosis, not whether her symptoms rendered her disabled under the Plan.” Id. at 71 (emphasis in original).
• After Liberty agreed to give Spears a third appeal, it referred Spears’ file to Dr. Brusch, an infectious disease expert, but his report has significant flaws. First, “[a]s was the case with Dr. Silverman’s first report, nearly all of the questions Dr. Brusch was asked to consider concerned the accuracy of Spears’ Lyme disease diagnosis and the quality of the treatment she was receiving for this disease, ” not “whether her symptoms rendered her disabled under the Plan.” Id. at 71-72. Second, Dr. Brusch was asked to “list all clinically supported restrictions and limitations” from February 8, 2009 forward. The Court found the term “clinically supported” “troublesome, insofar as the question preclude[d] Dr. Brusch from considering the extent to which Spears suffered from impairments which did not or could not be demonstrated clinically.” Id. at 72-73 (citing Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir. 2013), which held that a “the plan administrator must give sufficient attention to subjective complaints” and that “it is error to reject subjective evidence simply because it is subjective”). Even “more troubling” to the Court, however was Dr. Brusch’s response, that “[f]rom an infectious disease evaluation, the claimant does not have any restrictions and limitations to her activity from [February 8, 2009] forward.” The Court found that the qualifier “from an infectious disease evaluation . . . [was] both extremely vague and render[ed] the remainder of his answer non-responsive to the question he was asked.” Id. at 73. Finally, Dr. Brusch concluded that Spears had “no significant chronic ongoing infectious disease(s) that could explain any degree of impairment, ” but that conclusion “d[id] not respond to the relevant issue of whether Spears’ symptoms rendered her disabled under the STD or LTD Plans.” Id. at 73-74.

The Court also found fault with Liberty’s final denial letter, dated June 15, 2011, which stated that Liberty declined to review certain medical information from August 8, 2010 through April 29, 2011 on the basis that the records were not relevant. The Court was troubled because Liberty had provided some of these same records to peer reviewers and had never before indicated that Liberty considered records irrelevant. Id. at 75-76 (citing Saffon v. Wells Fargo Long term Disability Plan, 552 F.3d 863, 871 (9th Cir. 2008), which held that “[w]hen an administrator tacks on a new reason for denying benefits in a final decision, thereby precluding the plan participant from responding to that rationale for denial at the administrative level, the administrator violates ERISA’s procedures.”).

         The Court remanded the case back to the Plan Administrator, i.e. Liberty, with four specific Orders for Liberty to follow:

• “First, Liberty is instructed to consider whether the medical evidence submitted by Spears rendered her disabled within the meaning of the LTD Plan, reconciling its determination that she was disabled during a portion of the Elimination Period. The question is not whether Spears’ medical records establish that she suffered from Lyme disease, or whether Spears’ medical records are sufficient to support any particular diagnosis.” Id. at 78.
• “Second, while Liberty’s reliance on independent paper reviews is not itself improper, the deficiencies present in each of the reviews undertaken so far indicate that Liberty must take much greater care in posing relevant questions to its peer reviewers and ensuring that the responses that they receive are both consistent with the terms of the Plan and are responsive to the question asked. In fact, given the multiple deficiencies in each of these reviews, Liberty ‘would be well-advised, upon reconsideration, rather than simply conducting a paper review of [Spears’] claim, to have an independent medical examination performed on [Spears], or at a minimum, to have its medical consultants communicate with [Spears’] treating physicians in order to fully understand the basis for their [opinions].’”[6] Id. at 78-79 (quoting Viglietta v. Metro. Life Ins. Co., No. 04 Civ. 3874 LAK, 2005 WL 5253336, at *12 (S.D.N.Y. Sept. 2, 2005)).
• “Third, Liberty is instructed to perform a full and fair review that complies with the ERISA claims regulations. See Solnin v. Sun Life & Health Ins. Co., 766 F.Supp.2d 380, 393-94 (E.D.N.Y. 2011) (holding that the ERISA claims regulations apply to post-remand benefits determinations) (citing cases). This includes (but is not limited to) having Spears’ file reviewed by individuals who were neither ‘consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual, ’ 29 C.F.R. § 2560.503-1(h)(2)(v), permitting Spears ‘to submit written comments, documents, records, and other information relating to the claim for benefits, ” 29 C.F.R. § 2560.503-1(h)(2)(ii), ‘tak[ing] into account all comments, documents, records, and other information submitted by [Spears] relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination, ’ 29 C.F.R. § 2560.503-1(h)(2)(iv), and ‘not afford[ing] deference to the initial adverse benefit determination.’ 29 C.F.R. § 2560.503-1(h)(3)(ii).” Id. at 79-80.
• “Finally, there is the question of how some or all of Spears’ post-Elimination Period medical records (which comprise a substantial amount of the medical records in this case) bear on the question of Spears’ eligibility for LTD benefits. As an initial matter, they are certainly relevant to the question of whether Spears was unable to perform the ‘Material and Substantial Duties of her Own Occupation’ ‘during the Elimination Period and the next 24 months, ’ and if ‘thereafter’ she was ‘unable to perform, with reasonable continuity, the Material and Substantial Duties of Any Occupation.’ In addition, such post-Elimination Period evidence may be relevant to Spears’ condition during the Elimination Period, insofar as it ‘speaks to the credibility and accurateness of [] earlier evaluations and opinions.’ This is particularly true here, where Spears received multiple letters from her treating physicians during the Elimination Period stating that she was unable to work full or even part-time, and where Liberty appears to have given these letters minimal weight in the absence of sufficient amounts of corroborating medical records. Thus, on remand Liberty may not categorically dismiss some or all of Spears’ post-Elimination Period medical records as ‘not relevant’ without a reasonable explanation.” Id. at 80-81 (emphasis in original) (citations omitted).

         Judgment was then entered for Spears the same day that the Court’s Remand Order issued, March 31, 2015, [ECF No. 104], and the case was remanded to Liberty for action in accordance with the Court’s Remand Order.

         II. Liberty’s Actions on Remand

         A. The Initial Remand Review

The first action Liberty took occurred on July 24, 2015, almost four months after the Court’s Remand order issued, when Liberty’s counsel sent Spears’ counsel a letter “writ[ten] on behalf of Liberty, ” stating that Liberty had reviewed the Court’s March 31, 2015 Memorandum of Decision, inviting Spears to submit whatever additional documentation she wished for Liberty to consider on remand, and asking her to complete various attached forms and to submit detailed information about any employment she had obtained, “including self-employment, ” between February 9, 2009 and July 24, 2015. [AR 4892-93]. In the last paragraph, Liberty’s counsel stated that “[a]lthough ERISA does not prescribe Liberty Life’s deadline for review of the evidence in support of Plaintiff’s claims, it will strive to follow the appeal review deadlines set forth in the Regulations.” [AR 4893; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 91; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 91].[7] Although Liberty’s letter referenced attached forms and asked Spears to complete and return them, no forms were enclosed with the letter. Liberty mailed Spears a separate letter nearly a week later dated July 30, 2015 with which forms were enclosed and asked Spears to return those forms to Liberty by August 31, 2015. [AR4890; AR 4882-990; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 92; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 92].

         On August 26, 2015, Spears provided the wage information requested, and requested to know why new medical authorization forms were required. [AR4873-81]. Liberty responded on September 1, 2015, stating that its last correspondence July 24, 2015 letter. [D’s Local Rule 56(a)(2) Statement at ¶ 91]. Liberty’s Local Rule 56(a)(2) Statement violates Local Rule 56 in at least three ways. First, Liberty did not “include a reproduction of each numbered paragraph in the moving party’s Local Rule 56 (a)1 Statement followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c).” D. Conn. L. R. Civ. P. 56(a)(2)(i). Second, this Local Rule requires “a separate section entitled ‘Additional Material Facts’ setting forth in separately numbered paragraphs meeting the requirements of Local Rule 56(a)3 any additional facts, not previously set forth in responding to the movant’s Local Rule 56(a)1 Statement, that the party opposing summary judgment contends establish genuine issues of material fact precluding judgment in favor of the moving party.” D. Conn. L. R. Civ. P. 56(a)(2)(ii). No such section appears in Liberty’s Statement. Finally, and most importantly, Local Rule 56(a)(3) requires that “each denial in an opponent’s Local Rule 56(a)2 Statement, must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial, or (2) other evidence that would be admissible at trial.” Further, the ‘specific citation’ with Spears had occurred on June 15, 2011, and that the last medical records Spears submitted to Liberty were received in April 2011, but the wage information Spears provided showed she went back to work in August 2014 and she was now claiming that she was fully disabled through July 2014 and partially disabled from August 2014 through April 2015. Thus, Liberty needed medical records from April 2011 through April 2015. Liberty also asked Spears to provide the forms previously sent and the required medical authorization by September 15, 2015. [AR4871-72]. The same day, Spears asked for more time to submit the requested forms. [AR4870]. Spears sent the requested forms to Liberty on September 10, 2015. [AR4859-4869]. On September 16, 2015, Spears supplemented her list of medical providers with three additional providers. [AR4855].

         On October 14, 2015, Liberty assigned Nancy Winterer to oversee the remand determination. [AR4854; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 95; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 95]. On October 20, 2015, Winterer sent medical record release forms signed by Spears on September 8, 2015 via fax to Dr. Richard Shoup, one of Spears’ medical providers, and requested that he provide Spears’ medical records by November 9, 2015. [AR4849-53]. Identical letters were faxed to 24 other medical providers the same day, also requesting responses by November 9, 2015. [AR4753-4848].[8]

         On October 21, 2015, Winterer overnighted Spears’ counsel an unsigned letter stating that “[t]he claim documentation for this appeal was received in this office on October 14, 2015. Thus, day 45 of this appeal review is November 26, 2015.” [AR4751-52; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 93, 94; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 93, 94]. The letter said it was attaching copies of the letters sent to 27 of Spears medical providers on October 20 and 21, 2015, which were required because information Spears filled out on September 8, 2015 indicated she was claiming disability for “seven years.”[9] Id.

         Finally, the letter stated that under ERISA:

“an appeal determination should be rendered within 45 days of receipt of appeal, unless there are special circumstances beyond Liberty’s control which require a delay in making a determination. If additional time is needed, ERISA allows for a 45 day extension to evaluate and render an appeal decision. The days allowed for receipt of the additional medical documentation are days tolled and are not counted in the 90 day appeal review period. Therefore, the days from October 20, 2015 through the date all the necessary documentation is received, are days tolled and not counted in the 90 day Appeal timeframe.”

[AR4751].[10]

         On October 22, 2015, Winterer ordered a database search of Spears, consisting of a search of an “ISO Claim search, ” “Accurint/Lexis Nexis” search for drivers license information for Connecticut and Louisiana, “SSN Searches, ” “Change of Address, ” “Occupation and Professional Licensing, ” and “Social Media Searches (Facebook, Twitter, etc.).” [AR2288 note 32; AR4702; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 97; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 97]. The “ISO Claim search” was completed immediately and the data was loaded into Liberty’s database. [AR2288 note 31].

         Liberty also hired ICS Merrill EMSI Investigative Services (“ICS Merrill”) to investigate Spears. [AR2288 note 31; AR 4564; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 100; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 100].[11] ICS Merrill completed their search on October 27, 2015, and it reported finding no social media records for Spears, nor any professional licenses. ICS Merrill did, however, include in its report the Facebook pages of Spears’ relatives Tommy Baumann, Charlie Baumann, and David Shane Spears, Google map views and photographs of Spears’ residences in West Hartford, Connecticut, Somerville, Massachusetts, and Shreveport, Louisiana, and this Court’s Memorandum of Decision Granting in Part and Denying in Part Defendants’ Motion to Dismiss, [ECF No. 13], dated August 3, 2012. [AR4564-92; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 100, 101; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 100, 101].

         Liberty realized that it inadvertently failed to send Spears its “Training-Education-Experience” form when it sent its other forms to Spears in July 2015, and although Spears had completed all of Liberty’s requested forms to date, on December 1, 2015 Liberty asked Spears to complete the Training-Education-Experience form, which Spears submitted to Liberty on December 7, 2015. [AR2286-87 note 40; AR2878; AR2875; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 105; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 105].

         On January 12, 2016, Spears requested that Liberty adjudicate Spears’ disability claim. [AR2723; AR2286 Note 13; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 110; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 110].

         On January 29, 2016, Liberty referred Spears’ case for peer review to Behavioral Management, Inc. (“BMI”).[12] [AR2285 Note 48; AR2709-12; ECF. No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 111; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 111]. Liberty listed “Headache” as the “Primary Diagnosis, ” stated that Spears’ disability started on “9/27/2008, initially due to Headaches, ” and requested peer review by a panel to assess Spears’ “functional capacity for the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” [AR2709-10]. The peer review request also asked for a panel review by Endocrinology, Gastroenterology, Infectious Disease, Neurology, Neuropsychology, and Internal Medicine, [AR2710], with Internal Medicine to include a review of Rheumatology, Cardiology, Pulmonology, Sleep Medicine, Ophthalmology, Dermatology, and Primary Care records. Id.

         The peer review was split into six medical specialties. Each specialist was tasked to review part of Spears’ medical record, speak to certain of her treating physicians and answer specific questions relating to Spears’ medical condition during specified timeframes:

• Endocrinology: This section asked BMI to “contact Robert Lang, MD, . . . who treated [Spears] from 2/21/13 through 7/10/14, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked the following two questions: (1) “From an Endocrinology perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from an Endocrinology perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” Id.
• Gastroenterology: This section asked BMI to “contact James O’Brien, MD, . . . who treated [Spears] from 4/8/08 through 4/17/14, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked the following two questions: (1) “From a Gastroenterology perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from a Gastroenterology perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” Id.
• Infectious Disease: This section asked BMI to “contact Zane Saul, MD, . . . who treated [Spears] from 8/8/10 through 6/9/14, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked the following two questions: (1) “From an Infectious Disease perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from an Infectious Disease perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” Id.
• Neurology: This section asked BMI to “contact Dario Zagar, MD, . . . who treated [Spears] from 2/26/09 through 8/19/11, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked BMI to “contact Joachim Baehring, MD, . . . who treated [Spears] from 11/25/08 through 4/22/13, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked the following two questions: (1) “From a Neurology perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from a Neurology perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” Id.
• Neuropsychology: This section asked BMI to “explain the results and conclusions of the July 2010 Neuropsychological Evaluation of Marian Rissenberg, PhD, including areas of cognitive strength and weakness, and psychological findings. Please discuss how the strengths and weaknesses obtained on testing represent the following: ∙ Valid effort on the part of [Spears] to perform at her highest level. ∙ Appear consistent or inconsistent with Ms. Spears’ subjective complaints. ∙ Compared with estimated levels of previous function. ∙ Whether results of testing were influenced by factors such as secondary gain- financial or emotional, lack of job to return to, lack of motivation, etc.” It also asked the following two questions: (1) “From a Neuropsychology perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from a Neuropsychology perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” [AR2710-11].

• Internal Medicine (including review of Rheumatology, Cardiology, Pulmonology, Sleep Medicine, Ophthalmology, Dermatology, and Primary Care records): This section asked BMI to “contact Kristin Giannini, MD, . . . who treated [Spears] from 3/10/09 through 11/25/13, regarding Ms. Spears’ condition, treatment and functional capacity.” It also asked the following two questions: (1) “From an Internal Medicine perspective, based on the available medical evidence, please describe [Spears’] impairments, causes of any impairments, severity of impairments, and the duration of any impairments, during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” (2) Based on the medical evidence, from an Internal Medicine perspective, please provide your best assessment of [Spears’] functional capacity (including activities of daily living, physical capacity for work, capacity to travel) during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 1/31/2015.” [AR2711].

BMI employed four medical professionals to perform its peer review: Robert Cooper, M.D., who is listed as analyzing “Endocrinology” and “Internal Medicine”; Kent Crossley, M.D., who is listed as analyzing “Infectious Disease” and “Internal Medicine”; Daniel Kitei, D.O.[13], who is listed as analyzing “Neurology” and “Neuromuscular Medicine” and; Michael Raymond, PhD, who is listed as analyzing “Neuropsychology.” [AR2597; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 115, 119, 140, 144; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 115, 119, 140, 144]. These medical professionals reviewed Spears’ medical records, which were delineated in their report, participated in one group conference call, and attempted to contact several of Spears’ medical providers, but did not examine Spears. BMI provided its report to Liberty on March 4, 2016. [AR2597-2685; P’s Local Rule 56(a)(1) Statement at ¶¶ 114, 115; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 114, 115].

Dr. Cooper first stated that “[a]t issue is whether the evidence in the chart supports that the claimant is impaired with restrictions and limitations, and whether or not the evidence supports that the claimant is unable to work during the periods 9/27/2008 through 3/27/2009, and 3/28/09 through 3/31/2015.” [AR2598]. He then noted that he reviewed all of the listed medical records “in their entirety, ” and would “summarize those portions of the records received that have relevance to the questions and timeframe identified for this review, and within the scope of my areas of endo/IM/rheum/gastro/cardio/pulmonary and sleep medicine/primary care.” [AR2601; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 141; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 141]. He then summarized the records from eight of Spears’ medical providers, including Dr. Giannini, who noted on March 10, 2009 and June 18, 2009 that Spears complained of headaches. [AR2602]. During the conference call, Dr. Cooper stated that he was “asked to look at the case from several perspectives, including endocrinology, rheumatology, GI, and cardiology.” [AR2608]. Dr. Cooper then summarized his findings “[f]rom an endocrinology perspective, ” “[f]rom a rheumatology/musculoskeletal perspective, ” and “[f]rom a gastronenterological perspective.” He also discussed Spears’ sleep studies. Id. In discussing his findings from an endocrinology perspective, Dr. Cooper stated that “there is no evidence in the available records to support impairment.” Id. In discussing his findings from a rheumatology/musculoskeletal perspective, Dr. Cooper cited to Dr. Giannini’s findings as follows: “[Spears’] PCP, Dr. Giannini, opined restrictions and limitations in 2010 due to her plethora of symptoms, but provided no clinical evidence to back up her opinion within the medical records provided for review.” Id. In discussing his findings from a gastroenterology perspective, Dr. Cooper “noted that there were no abnormal findings.” Id. Dr. Cooper summarized that “there is no evidence within the available records to support functional impairment for the timeframe in question.” Id. Dr. Cooper’s summary of his findings in BMI’s report states that “the evidence does not support global impairment and that [Spears] is able to work without restrictions during the periods 9/27/2008 through 3/27/2009, and 3/28/09 through 3/31/2015.” [AR2610; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 143; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 143].

         Dr. Crossley first stated that “[t]he primary medical issue in question in this review is to determine if the claimant has had any infection that would be responsible for her non-specific symptoms and if these would be functionally impairing.” [AR2598]. He then summarized the findings of four of Spears’ medical providers, first noting that Spears “has had a broad spectrum of medical complaints, ” including fatigue, sensitivity to smells, slurred speech, sensitivity to sound, neck pain, night sweats, fever, heart palpitations, gastrointestinal problems, joint pain, muscle weakness, fasciculations, neuropathy, sleep disturbances, depression, anxiety, and neurocognitive deficits.” [AR2603]. He then summarized Spears’ treatment and diagnoses for various diseases. [AR2603-04]. During the conference call, Dr. Crossley first stated that there was “nothing in the available records to support impairment, ” and then noted the above symptoms “reported” by Spears, and that she “seemed to bounce from one doctor to the next for several years until she found Dr. Raxlen, who opined that she had Lyme disease.” [AR2608-09]. He noted that Spears had been tested positive for the IgG antibody on February 3, 2009, which could indicate the presence of Lyme disease, but then opined that because her other testing was negative, “this result means nothing.” [AR2609; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 144; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 144]. Dr. Crossley agreed with Dr. Cooper and found that “the evidence shows self-reported symptoms and a lack of objective data [and therefore] . . . functional impairment is not supported for the timeframe in question.” Id. In his summary, Dr. Crossley stated that he “agree[d] with Dr. Brusch (infectious disease) who wrote in his peer review report of 9/27/10 that Spears ‘does not have Lyme disease of any type.’” [AR2610]. Dr. Crossley’s summary states further that “[t]here is no evidence the claimant has had Lyme disease or other infections that would be functionally limiting.” Id.

         Dr. Kitei’s section of the report first stated that “[t]he primary medical issue in question in this review is unclear from a neurologic standpoint, ” but then noted that several of her medical providers had found that she had “cognitive problems and migraine, ” “Lyme disease” which made her unable to work, “fatigue and cognitive changes, ” and “lifting and cognitive limitations.” [AR2598; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 148; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 148]. In his analysis Dr. Kitei noted that Spears went to the emergency room with migraines on August 28, 2008, and that a “CT scan of her head revealed low attenuation in the right temporal lobe.” [AR2604; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 149; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 149]. He then noted that Spears saw a medical provider on September 8, 2008 “complaining of blacking out and headache.” Id. Dr. Kitei noted that Spears complained of headaches in 2008 and 2009 but found that those complaints were resolved by 2013 and “the evidence does not support impairment from a neurologic standpoint.” [AR2610]. In the conference call, Dr. Kitei stated that he agreed with Dr. Cooper and Dr. Crossly that “there is nothing within the available records to support impairment.” Id. He did not reconcile that conclusion with his notation of the low attenuation in Spears right temporal lobe. Id.; [AR2604; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 149; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 149].

         Dr. Raymond first stated that “[t]he primary medical issue in question in this review, from a neuropsychological perspective, is noted as: whether there is evidence to support neurocognitive deficits that would be functionally impairing within the time frame in question from 9/27/08 – 3/31/15.” [AR2598]. He then stated that he had reviewed all the medical records provided “in their entirety, ” and that his analysis was “a summary of those records deemed most relevant to the questions and time frame identified for this review and with the scope of my practice and area of expertise as a board certified neuropsychologist.” [AR2605]. Dr. Raymond stated that “the medical record review contained voluminous, redundant, and obsolete records to the clinical issue and timeframe currently under review, ” id., but failed to explain why medical records from 2008 and 2009 were obsolete to Spears’ medical condition during that time. Dr. Raymond noted that “[a] plethora of possible etiologies [i.e. causes], the vast majority of which were non-specific, were laced within the voluminous medical records review.” [AR2598-99]. He noted that Spears was found disabled on September 27, 2008 due to headaches and discussed the letters sent by several of her doctors in late 2008 and early 2009 discussing how these headaches made per unable to work. [AR2605-06; P’s Local Rule 56(a)(1) Statement at ¶ 127; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 127]. Dr. Raymond then discussed various clinicians’ attempts to determine the cause of Spears’ headaches and cited the two peer review studies conducted by Dr. Silverman in detail, including Dr. Silverman’s findings that there was “no clear-cut evidence of impairment from 2/8/09 to the present.” [AR2606-07].

         Dr. Raymond noted that Dr. Raxlen had conducted a “mental residual functional capacity assessment” on January 20, 2010, which found Spears “‘markedly limited’ in memory and cognitive functioning, including ‘remember locations, understanding very short simple instructions, carrying out detailed instructions, performing activities within a schedule, and set realistic goals and make plans independently, ’ but Dr. Raymond noted that this assessment did not “coincide with [Spears’] actual functional abilities at the time.” [AR2609; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 122, 123; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 122, 123]. Dr. Raymond did not, however, cite to any of Spears’ “actual functional capabilities” in his report nor did he provide his own assessment of Spears’ functional capacity concluding only that “there is no valid objective evidence to support neurocognitive deficits associated with chronic headache or a plethora of other reported possible etiologies, within the timeframe of 9/27/08 – 3/31/15.” [AR2597; P’s Local Rule 56(a)(1) Statement at ¶ 133; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 133].

         Dr. Raymond did not examine Spears and he provided no opinion of the credibility of Spears’ subjective complaints. Nor did he challenge the credibility assessments and weight given to her subjective complaints by her treating physicians who observed, examined and treated Spears over a lengthy period of time.

         Finally, Dr. Raymond criticized the neuropsychological assessment conducted by Dr. Rissenberg, finding it “marginal from a neuropsychological perspective, non-comprehensive, and nonstandardized, ” apparently because certain tests Dr. Raymond thought were important, in addition to the ones Dr. Rissenberg administered, were not conducted, and because Dr. Raymond considered the assessment, conducted in July 2010, obsolete because it was “6 years old.” [AR2607]. Dr. Raymond made particular note of the fact that Dr. Rissenberg did not test Spears’ effort to rule out malingering, a routine test administered to subjects whose complaints are subjective. [AR2607, 2609, 2611]. During the call Dr. Raymond stated that he agreed with the other doctor’s assessments and that “there is no evidence in the available documentation that the claimant is suffering from neurocognitive abnormalities.” [AR2609].

         Dr. Raymond also disagreed with Dr. Rissenberg’s July 2010 assessment that found Spears’ test results “consistent with frontal or diffuse cerebral dysfunction as seen in chronic infectious and inflammatory illness, ” and summarized that “there is no evidence in the records to support functional impairment, and no etiology to support any neuropsychological diagnoses.” [Id.; P’s Local Rule 56(a)(1) Statement at ¶ 128; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 128]. In his summary Dr. Raymond stated that “neurocognitive impairment is not supported within the time frame in question (9/27/08 – 3/31/15)” because “all neurological examinations, as previously discussed, were well within the normal range.” [AR2611]. He also noted that “[u]nfortunately, based on a dearth of neuropsychological evidence, the undersigned is unable to render a conclusive clinical opinion regarding functional capability with any degree of neuropsychological certainty within the requested timeframe. However, the available neuropsychological evidence offered in the medical record does not support presence of neurocognitive impairments or restrictions, including activities of daily living (ADL) for the noted timeframe.” [AR2614; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 114, 115; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 114, 115]. .

         Raymond acknowledged, but did not analyze, Spears’ CT scan and MRIs showing brain abnormalities, but found those “stable.” While commenting on the stability of the objective diagnostic findings, he did not comment on the severity or debilitating effect of these abnormalities. Finally, he referenced the “plethora of other subjective complaints and medical issues” that had been “noted and addressed over time, ” but did not comment on them, suggesting he did not consider her subjective complaints and medical issues. [AR2611].

         Only one of Spears’ treaters was contacted by a reviewer. That treater was her endocrinologist Dr. Lang, who reported on February 19, 2016 that Spears had “incidental thyroid cancer, ” which was being treated and that there “should be no impact on her functionality from an endocrine perspective.” [AR2616].

         On March 16, 2016, Winterer followed up, asking BMI to ask Dr. Raymond three questions: “(1) Please explain the reason you conclude the data provided for this review was ‘mostly obsolete.’ (2) Please explain how the data you described as ‘mostly obsolete’ reflects on [Spears’] impairments, cause of any impairments, severity of any impairments, duration of any impairments, and functional capacity during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 3/31/2015. (3) Please explain how the ‘obsolete (6 years old)’ results of Dr. Rissenberg’s July 2010 neuropsychological evaluation reflect on [Spears’] impairments, cause of any impairments, severity of any impairments, duration of any impairments, and functional capacity during the periods 9/27/2008 through 3/27/2009, and 3/28/2009 through 3/31/2015.” [AR2557-58; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 135; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 135].

         In response, Dr. Raymond provided an addendum that stated “my opinion from my original report has not changed. [AR2511; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 136; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 136]. He also stated that he considered Dr. Rissenberg’s report obsolete because “[f]rom a neuropsychological perspective” it was six years old and “abbreviated, nonstandardized, ” and not including formal testing, and Dr. Raymond had “updated neuropsychological information.” [AR2512; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 136; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 136]. He also stated that “[f]rom a neuropsychological perspective . . . given the dearth of updated neuropsychological data, the aforementioned information, in and of itself, does not reflect the claimant’s impairments, cause of any impairments, severity of impairments, or limits on functional capacity.” Finally, he stated that “in essence, without having comprehensive and updated neuropsychological data, the undersigned was unable to render a clinical opinion regarding limitations, restrictions, or functional capability, with any degree of neuropsychological certainty.” [AR2512; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 138; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 138].

         On February 10, 2016, 13 days after it had referred Spears’ case to BMI, Liberty requested an independent medical examination (“IME”) of Spears by an entity called Medical Consultants Network, LLC (“MCN”). [AR2284 Note 1; AR2492; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 153; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 153]. Dr. Courtney conducted the IME for MCN on March 14, 2016 and his report was forwarded to Liberty the same day. [AR2492]. In his report, Dr. Courtney documented his physical examination of Spears, and the review of Spears’ medical records, writing short summaries of some of them. [AR2494-2506; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 159; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 159].[14]

         Dr. Courtney was asked a number of questions. The fifth asked for an “[o]pinion regarding verifiable physical impairment: Based on the review of functional evidence, clinical exam findings, and diagnostic test evidence, does the insured have any verifiable functional impairment? For any impairment confirmed, please provide the clinical, diagnostic, and/or functional evidence supporting your opinion.” [AR2507]. Dr. Courtney responded: “As far as from March 28, 2009, and to the present, the patient had multiple complaints that were basically non-verifiable. . . . As far as the periods from September 27, 2008, through March 27, 2009, apparently the patient had multiple physicians who supported her inability to even do sedentary activities. Seeing as I did not see her, I did review her records and find it difficult to dispute their findings, although they are subjective.” Id.

         The sixth question asked for an “[o]pinion regarding medically-supported physical restrictions/limitations: For any physical impairment confirmed, please provide specific physical restrictions/limitations. Please define by type of task [sitting, standing, lifting, etc.], as well as frequency of task [never, occasional, frequent, constant]. Include duration of physical restrictions/limitations. Is there any medical or functional evidence supporting your opinion?” Id. In response, Dr. Courtney said “[i]t would be virtually impossible, based on the review of these records, to determine what this patient could have done from September 27, 2008, through March 27, 2009, without examination of the patient; however, her limitations, again, seem to be more subjective than objective regarding her headaches, headache frequency, and her myofascial complaints. Apparently, the patient was able to work at least part time during that period, but seemed to be plagued by fatigue. Again, her limitations would be subjective at best.” [AR2508].

         The eighth question asked for an “[a]ssessment of functional inconsistencies: Compare the insured’s functional statements and clinical observations, and discuss any inconsistencies noted.” Id. In response, Dr. Courtney stated “[p]atient debilitating fatigue, headaches, and cognitive dysfunction which are difficult to objectively document.” Id.

         Question nine asked for a “[s]ummary of your overall impression regarding the insured’s current verifiable physical impairments, medically-supported physical restrictions/limitations, and maximum full-time work capacity.” Id. In response, Dr. Courtney summarized:

As far as to the extent of which the results of this Independent Medical Examination provide any information concerning the periods of September 27, 2008, through March 27, 2009, apparently the patient was placed on work restrictions, from my review, at least from November of 2008 through January of 2009, in which she was to return to work. Again, there was a reviewer that noted that from March 24, 2009, through May 11, 2009, she had no verifiable evidence of why the patient could not work. As far as that extension from that period of time through March 31, 2015, it does not appear that the patient had any incapacitating diagnosis. She had apparently been previously taken off work. The chiropractic notations of lumbalgia and cervical segment dysfunction and cervicalgia would not be a reason for the patient to not be able to perform at least sedentary work during that period of time.

         [AR2508-09].

         On April 6, 2016, Dr. Zagar, Spears’ former treating physician, wrote Liberty a letter after reviewing the BMI peer review report, commenting on it and disagreeing with its conclusions:

I cared for Haley Spears from January of 2009 through October 2011. . . . Ms. Spears was dealing with symptoms including frequent headaches, severe fatigue, joint pains, digestive problems, and cognitive complaints. Testing was notable for a positive CSF Lyme IgG antibody, suggestive of the possibility of CNS Lyme disease. She was also under the care of a rheumatologist and infectious disease specialist for her issues, and received long term antibiotic therapy and a variety of symptomatic treatments with only minimal improvement in her symptoms. She continued to have fatigue and cognitive issues which limited her daily functioning, and in my opinion she was unable to work, even on a part-time basis. At the time I was seeing her, she seemed to do little outside of seeing her doctors because of her various symptoms. She was unable to drive or handle some other basic daily activities. Neuropsychological testing done in 2010 showed cognitive impairment, which was consistent with her subjective symptoms. While I would agree that a diagnosis of CNS Lyme was not certain, she clearly has had some multisystem disorder (e.g., an unspecified autoimmune disorder or fibromyalgia) that produced her constellation of multiple somatic and cognitive symptoms, and which affected her enough to impair her daily functioning. To be frank, on review of your physicians’ assessments of her prior medical records, it is clear that each took as skeptical and unsympathetic a viewpoint as possible when assessing her case, which is unfair to this unfortunate young woman. I am certain that if any of them had been her treating physician rather than an insurance reviewer they would not have taken the same approach.

[AR2484; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 166-68; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 166-68].

         Also, on April 6, 2016, Dr. Rissenberg sent Liberty a response to Dr. Raymond’s critique of her July 2010 neuropsychological assessment of Spears. [AR2486-88; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 169; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 169]. Dr. Rissenberg explained that Dr. Raymond’s characterization of her assessment as “cursory” or “abbreviated” was incorrect. [AR2486, 2489-90; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶¶ 169-71; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶¶ 169-71]. Rather, Dr. Rissenberg explained, her July 2010 assessment of Spears was thorough, appropriate and well founded because she spent nine hours with Spears, administered six different psychological tests to Spears, and then spent eight hours analyzing the results. [AR2486; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 171; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 171]. She explained that her assessment provided “clear and objective evidence, as well as clinical evidence, of significant impairment in multiple areas of function, ” including “Spears obtain[ing] a Working Memory Index at the 12th percentile, ” which was “statistically significant, ” and an “Auditory Delayed Memory Index” at the 6th percentile, which was “in the Borderline Defective range, impaired by any standard.” [AR2487 (emphasis in original); ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 173; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 173].

         Next, Dr. Rissenberg noted that the tests that Dr. Raymond criticized her for not giving were unnecessary because the things they tested for, such as whether a patient was malingering or not making an effort to properly take the tests, were already obvious from Spears’ responses to the tests Dr. Rissenberg did administer. [AR2488; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 175; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 175]. Finally, Dr. Rissenberg stated that her July 2010 assessment of Spears was appropriate and comprehensive, and it “demonstrate[d] statistically significant impairment of cognitive function.” [AR2488].

         On April 11, 2016, Spears filed a Complaint against Liberty in this Court, Spears v. Liberty Life Assurance Co. of Boston, 3:16-cv-572 (VLB) (D. Conn.), which stated that “[a]s defendants have exceeded the time limit allowed by ERISA in which to make a decision, Spears’ claim is deemed denied.” [ECF No. 138-2, P’s Local Rule 56(a)(1) Statement Exhibit B at 2, ¶ 176; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 176].[15]

         On April 13, 2016, Dr. Giannini wrote a letter “To whom it may concern, ” which was forwarded to Liberty on April 14, 2016, in which she stated:

I was treating Haley [Spears] during the period in question for headaches and fatigue. Headaches and fatigue have no specific objective evidence to indicate quality and severity. They are measured based on patient subjective report. During this period Haley’s headaches and fatigue were severe enough that she would have spent significant amounts of time away from a job. She would have been an unreliable employee and missed many days of work. She was most definitely disabled during this period.

[AR2469-70; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 165; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 165].

         On April 29, 2016, BMI, now called R3 Continuum, sent Liberty an addendum to BMI’s previously submitted peer review report. [AR2411-15; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 177; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 177]. In the addendum, Dr. Kitei responded to the letter Dr. Zagar had submitted and Dr. Raymond responded to the letter Dr. Rissenberg had submitted. Id.

         Dr. Kitei concluded that “the evidence does not support impairment from a neurologic standpoint in regards to the complaints of headache” because Dr. Zagar’s letter “d[id] not offer any additional information from a neurological standpoint.” [AR2411; AR2414]. He continued:

Dr. Zagar’s note also details that he felt that the claimant was limited in functioning due to fatigue and cognitive issues so was unable to work, but as previously noted, opining on the cognitive issues and any impaired functioning in that regard will be yielded to Dr. Raymond for this report as per my instructions. From a neurologic standpoint there is no additional information that would alter my previous opinion that the evidence does not support impairment from a neurologic standpoint. As noted previously, the claimant complained intermittently of headaches but notes including 2009 and 2010 detailed that she had significant improvement and she has had consistently normal neurological examinations as detailed previously. . . . My previous report discussed in detail why the evidence does not support impairment from a neurological standpoint.

[AR2414-15]. Dr. Kitei neither acknowledged nor assessed abnormalities reflected in Spears’ diagnostic test results.

         Dr. Raymond concluded that “it is the reviewer’s opinion within a reasonable degree of neuropsychological certainty that: there is no valid objective evidence to support neurocognitive deficits associated with chronic headache or a plethora of other reported possible etiologies [i.e. causes] within the time frame of 9/27/08 – 3/31/15” because “the preponderance of the clinical evidence contained within the file does not support neurocognitive impairment within [the] designated time frame.” [AR2411-12]. Dr. Raymond continued that while Dr. Rissenberg administered six tests to Spears, she did not administer a comprehensive battery of tests, such as the Halstead Reitan Neuropsychological Battery, and thus her tests should be considered a “casually-composed” battery of tests that made clinical inferences difficult and “often inaccurate.” [AR2413]. Dr. Raymond stated that “[t]his evaluation would not withstand [a] Daubert or Frye challenge regarding the standards of admissibility.” Id.

         Dr. Raymond disagreed with Dr. Rissenberg’s conclusion that the results of the tests administered showed Spears was impaired, saying that the test results did not support that, because “personality variables, adjustment difficulties, or other behavioral concomitants, might have contributed to the clinical picture.” Id. Again Dr. Raymond faulted Dr. Rissenberg for not conducting validity testing, especially given Spears’ potential for secondary gain, i.e. disability benefits. [AR2414].

         On June 16, 2016 Liberty denied Spears LTD benefits in a 27-page letter (the “June 16, 2016 Denial Letter”). [AR2379-2405; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 179; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 179].

         The June 16, 2016 Denial Letter recounted the findings and opinions of the physicians retained to evaluate Spears’ claim. [AR2380-93; ECF No. 138-2, P’s Local Rule 56(a)(1) Statement at ¶ 180; ECF No. 159, D’s Local Rule 56(a)(2) Statement at ¶ 180]. These summaries included summaries of peer reviews conducted by Dr. Taiwo, Sr. Silverman (twice), and Dr. Brusch. [AR2384-89]. The June 16, 2016 Denial Letter next summarized the findings of the peer review conducted by BMI, summarizing the findings of Drs. Cooper, Crossley, Kitei, and Raymond. [AR2393-95]. Next the June 16, 2016 Denial Letter summarized the responses of Drs. Zagar, Rissenberg, and Giannini to the BMI peer review report, and summarized Drs. Raymond and Kitei’s response to Dr. Rissenberg and Dr. Zagar’s responses, respectively. [AR2395-96]. Finally, the June 16, 2016 Denial Letter summarized Dr. Courtney’s IME findings. [AR2396-97].

         In analyzing Spears’ condition during the Elimination Period, Liberty noted that

Spears’ self-reported symptoms increased during the Elimination Period. Reported symptoms progressed from headaches with nausea and vomiting to include blackouts/seizures, insomnia, stuttering, and in November 2008 included memory gaps and stuttering. By January, Ms. Spears complained of fatigue, night sweats, weight loss/gain; dry eyes and dry mouth, stiffness in the morning, jaw pain, headache; eye pain, blurred double vision, floaters, flashes; asthmatic shortness of breath; chest tightness; heartburn, abdominal pain, diarrhea, nausea; recurrent sinus and ear infections; muscle weakness, tingling and numbness; anxiety; bruising easily; ringing in her ears.

[AR2398-99]. The June 16, 2016 Denial Letter continued: “Despite the increase in self-reported symptoms, Ms. Spears’ cognitive and physical exams remained normal, and she was able to return to work on a part time basis beginning on 1/8/09, remained working part time through 3/24/09.” [AR2399]. Liberty then noted that there were “multiple inconsistencies” in Spears’ medical records, such as there being “no findings on exam” by Dr. Giannini March 10, 2009, and that on April 21, 2009 “Spears reported to Dr. Raxlen that experience[d] horrible migraines” which no medicine helped, but six days later Dr. Zagar reported that Spears’ headaches were “well controlled, ” with “only two in the last couple of months.” Id. The June 16, 2016 Denial Letter completed its discussion of the Elimination Period by stating:

Since Ms. Spears’ self-reported symptoms were not consistent with the medical evidence and her actual functional abilities continuously throughout the Elimination Period, Ms. Spears’ STD and LTD claims were denied. As noted previously, STD benefits were paid through the 3/27/09 maximum benefit date based on the fiduciary’s decision, not based on Liberty’s assessment of Ms. Spears’ level of impairment.

Id.

         The June 16, 2016 Denial Letter then addressed the “Own Occupation” period of March 28, 2009 to March 27, 2011. First, Liberty noted that Drs. Raxlen, Zagar, Giannini and Saul had “endorsed the diagnosis of Lyme disease, ” but “Spears’ physical examinations remained normal.” [AR2399]. The June 16, 2016 Denial Letter noted continued inconsistencies in Spears’ medical records, such as Dr. Raxlen noting that Spears reported marching for four hours in the Mardi Gras parade in Louisiana on February 13, 2010, while one month later on March 19, 2010, Spears told Dr. Zagar that her antibiotics were stopped in December 2009, causing her to “totally crash” after five weeks. Id. The June 16, 2016 Denial Letter stated that Dr. Zagar also noted Spears’ “symptoms of neck and shoulder pain, migraines, fatigue, joint pains, and cognitive impairment including trouble with memory, word finding, concentration” on Spears’ “Physical Residual Functional Capacity Questionnaire” and her “Medical Source Assessment (Mental), ” but Dr. Zagar “never documented abnormal findings on exam.” Id. The June 16, 2016 Denial Letter stated that Dr. Giannini did document Spears’ symptoms on these two same forms and on exam on July 9, 2010, but this was the only time she did so. Id. Finally, the June 16, 2016 Denial Letter noted that in July 2010, “Spears reported to Dr. Raxlen that her cognitive impairment ‘turns off and on, ’” and in August and September 2010 Spears reported to Dr. Saul that she had ‘brain fog, ’” but on October 19, 2010 Spears reported to Dr. Young “that she had increased cognitive clarity, better retentions and improved speech.” Id.

         The June 16, 2016 Denial Letter next addressed the “Any Occupation” phase, which began March 28, 2011 and ran forward. [AR2400]. Once again finding discrepancies in her records, the June 16, 2016 Denial Letter noted that on August 19, 2011 “Dr. Zagar documented normal findings on the cognitive and physical portions” of his examination of Spears, and Dr. Baehring “documented a normal neurologic and cognitive exam on September 23, 2011, but on September 7, 2011 Spears reported to Dr. Saul that her condition was worse. Id. The June 16, 2016 Denial Letter then noted a gradual improvement in Spears’ condition, as reported by Dr. Raxlen in “March through August 2012, and as reported by Dr. Saul in June 2014. Id. Spears returned to work full-time, the June 16, 2016 Denial Letter noted, in August 2014. Id.

         In a section entitled “Additional Remand Analysis, ” Liberty first discussed issues regarding mental health, stress, and depression that occurred in Spears medical records, despite “no mental health evaluations or treatment records on file.” Id. Then Liberty noted that “Spears’ medical work-up was set in motion by her complaints of increased, severe headaches, ” noted that Spears did not have a brain tumor and her Lyme disease diagnosis was disputed, and summarized that “Ms. Spears’ self-reported symptoms were not consistent with the overwhelmingly normal medical and cognitive exams, and did not coincide with her actual functional abilities.” [AR2400-01].

         The June 16, 2016 Denial Letter then noted that all of Spears’ treatment records were considered, and that Spears’ “peer review physicians have had the opportunity to review, compare and contrast all medical evaluator’s findings, as well as the frequency, duration, consistency and severity of Ms. Spears’ self-reported symptoms. The review physicians are all board certified in their specialties and are qualified to review and interpret medical records and opine on medical functionality. Additionally, Drs. Taiwo, Silverman, Crossley, and Raymond are certified Medical Examiners.” [AR2401].?

         The June 16, 2016 Denial Letter next discussed a portion of the applicable insurance policy entitled “Discontinuation of the Long Term Disability Benefit” and whether Spears’ earnings in 2014 and 2015 made her ineligible for LTD benefits. [AR2401-03].

         The June 16, 2016 Denial Letter then discussed Spears’ award of Social Security Disability Income benefits, distinguishing the administrative law judge’s (”ALJ”) credibility assessment. The Denial Letter noted inconsistencies in Spears’ reports to her doctors stated above as bases to discredit Spears’ credibility, and the Denial Letter notes the ALJ took “Spears’ ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.