United States District Court, D. Connecticut
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’
...