Opinion
Case No. 1:04cv458.
December 4, 2006
ORDER
This is an ERISA benefits recovery action for which plaintiff seeks an award of disability benefits from his former employer, Allstate Insurance Company ("Allstate"). Jurisdiction is premised upon 29 U.S.C. § 1132(a)(1)(B). Relief is sought from Metropolitan Life Insurance Company ("MetLife"), the Plan Administrator of Allstate's long-term disability plan (the "Plan").
See Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
Plaintiff was found disabled, and awarded Plan benefits as of March 15, 1993. See Administrative Record ("AR") at 462. Approximately seven years later, following review of video surveillance, he was found not disabled, and his plan benefits were terminated effective May 15, 2002. Plaintiff seeks a reinstatement of these benefit monies.
Now before the Court is the Administrative Record, including a copy of the Plan (doc. 21); plaintiff's motion for judgment as a matter of law to reverse the administrative decision (doc. 31); defendant's opposition memorandum and cross-motion for judgment on the administrative record (doc. 34); plaintiff's reply (doc. 42); and defendant's reply (doc. 47).
I. BACKGROUND AND FACTS
Plaintiff has an Associate's Degree in business management. AR 44. Prior to his disability, plaintiff worked for Allstate as a market sales manager. AR 475. He also previously worked for Allstate as an insurance agent and as a district manager. Id.
In October 1992, plaintiff left work due to lumbar spinal stenosis. AR 477. At that time, plaintiff claimed he could not sit, stand, or walk more than ten minutes, and that he spent 23 hours a day in bed. He underwent a series of back fusions in 1990, 1992, and 1994. AR 68. He applied for and received LTD benefits under the Plan beginning March 15, 1992. AR 462. In 1995, he was awarded Social Security Disability Benefits. AR 386.
A. Plaintiff's Continuing Disability
On July 13, 2000, plaintiff completed a "Personal Profile" questionnaire at the request of MetLife. AR 315-320. In this profile, plaintiff represented that he did not sleep more than two hours at a time, and could not even provide his own personal care. AR 316. He also reported that his eating had become "sporadic" due to the fact that he was in too much pain to eat ("can't eat in pain"). AR 317. When questioned as to what housework he performed, including yard work, his answer was "none." AR 318. He stated, "I do nothing." Id. When asked about shopping habits, he answered, "I do not shop." Id. He checked "No" when asked whether he drove or took public transportation. Id. When asked how he traveled, he wrote "wife — multiple pillows — also — lying down." Id. He also stated, "I don't travel." Id. When asked about his hobbies or activities, he wrote "none." Id.
On February 10, 2000, Steven Milliner, M.D. ("Dr. Milliner"), plaintiff's orthopedic surgeon, completed an Attending Physician's Statement of Functional Capacity ("APS") attesting to plaintiff's continuing total disability. AR 142-3. According to the APS, plaintiff had to completely avoid sitting, changing position, assuming cramped/unusual positions, reaching, pushing/pulling/twisting, grasping/handling, finger dexterity, repetitive movement, climbing, balancing, bending/stooping/squatting, operating truck/dolly/small vehicle, operating heavy equipment, operating electrical equipment, and concentrated visual attention completely. AR 142. Dr. Milliner also reported that plaintiff has to use a cane and a walker, as well as a "TLSO body jacket". Id.
In December, 2000, MetLife wrote plaintiff asking him to submit to a Functional Capacity Evaluation ("FCE"). Plaintiff, however, objected to the FCE. In a letter to MetLife dated January 16, 2001, plaintiff wrote:
I can not tolerate a 4-8 hour time span for anything in my life due to my medical condition. Dr. Milliner is fully aware that I sleep only 2 hours at a time for the past 6 years. He is also fully aware that any activity, be it sitting, standing, etc etc . . . is limited to very short time frames . . . 4-8 hours of anything would be, in my opinion, a medical catastrophe and quite obviously would have only contribute to the chronic pain, if not worse!! [sic]
AR 292-294.
In January 2001, plaintiff submitted additional evidence in support of his continuing total incapacity. AR 296. The evidence included a letter dated January 8, 2001 from Claire Moore, PA-C, of the Sonoran Spine Center, which stated that plaintiff "is unable to do any bending or twisting and has a difficult time with [activities of daily living]." The letter from Ms. Moore also stated that plaintiff "is unable to bathe himself and is unable to bend or twist. He is also unable to walk any distance whatsoever." AR 295.
Dennis Crandall, M.D. ("Dr. Crandall"), also of the Sonoran Spine Center, completed a consultation report on January 8, 2001. AR 227-229. According to this report, plaintiff told Dr. Crandall that, at best, his pain was a 10 on a scale of 1-10. AR 227. He further told Dr. Crandall that he could "not walk any distance at all and usually stays at home in a supine position with pillows under his legs for comfort." Id. Dr. Crandall further noted that, according to plaintiff, plaintiff "uses a walker, as well as a back brace" and "is unable to get outside of his home." Id.
In the physical examination section of Dr. Crandall's consultation, Dr. Crandall noted that "Bob is dependent upon his walker for ambulation." AR 228.
On March 1, 2001, Dr. Milliner completed another APS in which he reiterated plaintiff's total functional incapacity. AR 140-1.
B. MetLife's Video Surveillance
In late May of 2000, MetLife hired an investigator to observe and videotape plaintiff's activities. AR 157.
In June of 2000, video surveillance was conducted on two days. Plaintiff was not seen either day. AR 331. An individual familiar with plaintiff, confirmed plaintiff's residence and indicated that plaintiff "did not appear to be very active." AR 339.
Video surveillance continued for several days in July 2000. On July 8, 2000, plaintiff was observed retrieving his mail from across the street and walking around his residence. AR 158; videotape at 12:03 p.m. (7/8/00). Plaintiff was then observed walking back and forth watering plants in his yard. AR 158; videotape at 12:07 — 12:12 p.m. (7/8/00).
Plaintiff was observed again on July 22, 2000, driving to the post office, yard sales, flea market, hardware store and gas station. He was seen carrying two boxes into the post office, small plastic bags from the yard sale, a weed trimmer from the hardware store, and pumping gas at the gas station. Plaintiff was away from the house for approximately 2 ½ hours.
On July 28, 2000, plaintiff was observed working in his yard for approximately 10 minutes. He was seen carrying two potted plants, a small wooden/bamboo pole, and a small tree.
On July 29, 2000, plaintiff was again seen working in his yard for about 30 minutes. He also drove to a flea market, and two yard sales. He was away from his home approximately 1 hour and 45 minutes.
In September 2000, a MetLife investigator monitored plaintiff for two days. AR 322. The only activity observed was Plaintiff wheeling a garbage can from the street to his house. Id.
MetLife arranged for four more days of surveillance on January 23, 24, 25, and 26 of 2001. AR 240. No activity was observed on January 23 or 24. However, on January 25, 2001, plaintiff attended a doctor's appointment at the Mojave Heart Center in Bullhead City, Arizona. His female companion drove plaintiff to the appointment, a trip of approximately 50 minutes, and plaintiff entered and exited the building walking slowly and holding a cane in his left hand. Id.; videotape at 10:02:13 — 20 a.m. and 11:11:22 — 45 a.m. (1/25/01); Exhibit F (still image).
The couple then traveled approximately 10 minutes to the Golden Nugget Hotel and Casino in Laughlin, Nevada. AR 165. Plaintiff then walked into the casino without his cane. AR 165; videotape at 11:24:36 — 11:27 — 54 a.m.; Exhibit H (still image). Plaintiff is seen playing video poker and slot machines for approximately 30 minutes. Plaintiff was inside the casino for approximately 3 ½ hours. AR 165, videotape at 11:28:37 a.m.; 12:36:19 — 12:42:27 p.m. Plaintiff then exited the hotel, again without the use of a cane, and the couple returned to their residence — a travel time of approximately one hour. AR 165.
No activity was reported on January 26, 2001.
Nearly a year later, MetLife monitored plaintiff again on December 4, 14, and 15 of 2001. AR 230. During those days, plaintiff appeared to be at home, but was only seen moving the garbage can.
C. Termination and Appeal
MetLife had the surveillance tapes reviewed by Janalee Reinkel-Lyth, OTR/L, CHE, an occupational therapist and FCE coordinator. Ms. Lyth concluded that "there was a lack of demonstrated functional consistency between Mr. Clarke's natural functionality and his physician's restrictions." AR 150.
MetLife also performed a labor market survey on November 21, 2000 to determine whether there were jobs in the geographic area of plaintiff's residence that matched his prior employment, education, and training. AR 10, 182. This review found twelve occupations within plaintiff's capabilities, all of which fell into the management or administrative category. Id.
On February 8, 2002, plaintiff's medical records and file were referred by MetLife to a board certified physician and certified disability evaluator, John D. Thomas II, F.A.A.P. M.R. AR 178-181. After comparing plaintiff's medical records to the surveillance videotapes, Dr. Thomas concluded: "[a]t this time, I believe that it is sufficient to say that there are serious inconsistencies and inaccuracies apparently reflected in the medical reports based upon information supplied by Mr. Clarke." AR 181. Dr. Thomas was also asked his opinion on whether MetLife should again request a functional capacity evaluation. Dr. Thomas stated:
Surveillance activities fly in the face of all of these statements which primarily stem from Mr. Clarke. An FCE, at this time, of course relies heavily on Mr. Clarke's participation. It would appear, based on this very sharp and contrasting clash of information in the file, that Mr. Clarke would be very likely to self-limit and manipulate the testing in his favor. Therefore, speaking as a board certified practitioner in physical medicine and rehabilitation, I would not recommend, using an FCE at this time.
AR 180.
By letter, dated May 15, 2002, plaintiff's LTD benefits were terminated due to inconsistencies between plaintiff's medical evidence and plaintiff's observed activities. AR 209-211.
Plaintiff exercised his rights under the Plan and appealed the decision on November 12, 2002. AR 39. In support of his appeal, plaintiff attached reports from two recent medical evaluations and medical records detailing his medical history.
On July 15, 2002, plaintiff was evaluated by Dr. Clyde Burton, the Senior Medical Advisor of the Institute for Low Back and Neck Care, in Minneapolis, Minnesota. AR 68. Plaintiff appeared at Dr. Burton's office in a wheelchair. AR 69. According to Dr. Burton, plaintiff was "unsteady" on his feet, and his gait was "guarded and unsteady." Id. After examining plaintiff, Dr. Burton concluded that Plaintiff was totally disabled. AR 70.
On November 1, 2002, plaintiff underwent a functional capacity evaluation (FCE), by Rick Wickstrom, the therapist examiner, and Dr. Paul Hogya, the medical reviewer. AR 43-46. Mr. Wicksrtom and Dr. Hogya concluded that:
Mr. Clarke has been permanently and totally disabled since 10/28/92 and has a very poor prognosis for ever returning to sustained remunerative employment. His primary condition, adhesive arachnoiditis, is a progressive condition characterized by chronic pain and unpredictable daily activity tolerances. Mr. Clarke reports that he is rarely able to leave his home. Even on "good" days, he has to lie down with positioning pillows for most of his waking hours. When he attempts activities outside his home, he usually pays by having to take additional pain medications and remaining bed-ridden the next day. Mr. Clarke's severe limitation in sitting tolerance is well-substantiated by objective MRI findings in the lumbar spine on 6/13/94 that demonstrated extensive scar tissue totally surrounding the thecal sac and extending into both neural formamina and surrounding the nerve roots. Because of the hardware related to the fusion, Mr. Clarke avoids pressure against his lumbar area. Consequently, it is not surprising that he prefers to standing or lying down over sitting. Any significant hip flexion during sitting or driving puts tension on his damaged nerves in the lumbar region and would contribute to increased pain. Virtually all of the management positions identified in the transferability of skills analysis by MetLife are salaried positions that require long working hours, constant alertness, and a positive affect. Because of his chronic pain behaviors, limited sitting tolerance and need for lie down periodically throughout the day, Mr. Clarke could not possibly perform the essential functions of any of these positions on a consistent part or full time basis.
AR 46.
Additionally, Mr. Wickstrom and Dr. Hogya reviewed the video surveillance and noted that plaintiff used good body mechanics supporting himself in order to minimize strain to his lower back. Furthermore, they noted that "[t]his tape appeared to show a very biased view of his activities, with multiple unexplained gaps." AR 44.
Furthermore, in support of his appeal, plaintiff also attached the November 12, 2002, medical report from Dr. Edward P. Drohan, plaintiff's primary care physician. AR 67. Dr. Drohan reported that:
Mr. Clarke is totally and permanently disabled. The patient has been on social security disability for 10 years. He has been diagnosed with irreversible and progressive adhesive arachnoiditis, genomic degenerative disc disease with 8 discs involved at present time and spinal stenosis.Id.
After receiving plaintiff's appeal, MetLife referred plaintiff's records to Warren Silverman, M.D., for a second opinion. AR 33-37. Dr. Silverman concluded that while plaintiff does have problems with his low back, "there is a marked discrepancy between the observed activities of Mr. Clarke under surveillance and the way he is presented to his doctor on his visits." AR 36. Dr. Silverman further stated that plaintiff's representations to his doctors are unreliable, as plaintiff presents a "marked magnification of his disability when he is seen and evaluated by medical practitioners." Id.
Assessing plaintiff's capabilities based on his observed activities rather than the medical examinations, Dr. Silverman concluded that "based upon those observed capabilities, this gentleman is capable of performing a wide range of activities found within employment." Id.
In a letter dated January 14, 2003, MetLife upheld the termination of plaintiff's LTD benefits, finding that the "original determination was appropriate." AR 30. Plaintiff then instituted the present action.
II. STANDARD OF REVIEW
The Court reviews de novo a denial of benefits under an ERISA plan "unless the benefit plan gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan." University Hosps. v. Emerson Elec. Co., 202 F.3d 839, 845 (6th Cir. 2000). If an administrator has such discretionary authority, the Court reviews the denial of benefits under the arbitrary and capricious standard. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989); University Hosps., 202 F.3d at 845.
The arbitrary and capricious standard applies in the present case because the long term disability insurance policy at issue gives MetLife "discretionary authority to interpret and apply the terms of the Plan applicable to the administration of claims." AR 528. "When a plan administrator has discretionary authority to determine benefits, [the Court] will review a decision to deny benefits under `the highly deferential arbitrary and capricious standard of review.'" Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir. 2001) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996)).
Nonetheless, as noted by the Sixth Circuit, merely because the review is deferential does not mean that it is inconsequential. Moon v. UNUM Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005). The court explained as follows:
While a benefits plan may vest discretion in the plan administrator, the federal courts do not sit in review of the administrator's decisions only for the purpose of rubber-stamping those decisions. As we observed recently, "[t]he arbitrary-and-capricious . . . standard does not require us merely to rubber stamp the administrator's decision." Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)). Indeed, `[d]eferential review is not no review, and deference need not be abject." McDonald, 347 F.3d at 172. Our task at all events is to "review the quantity and quality of the medical evidence and the opinions on both sides of the issues." Id.Id.
Only if the administrative record supports a "reasoned explanation" for the termination of benefits, the decision is not arbitrary or capricious. See Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000) (cited in Moon, 2005 WL 664330, at *5).
In sum, the decision of the administrator is upheld if it is the result of a deliberate principled reasoning process, if it is supported by substantial evidence and if it is based upon a reasonable interpretation of the plan. Glenn v. MetLife, et al., 461 F.3d 660, 666 (6th Cir. Sept. 1, 2006) (quoting Baker v. United Mine Workers of America Health and Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)).
On the other hand, indications of arbitrary and capricious decisions include a lack of substantial evidence, a mistake of law, bad faith, and a conflict of interest by the decision-maker. Caldwell v. Life Insurance Co. of North America, 287 F.3d 1276, 1282 (10th Cir. 2002). Also, a decision based upon a selective review of the record or an incomplete record is arbitrary and capricious. Moon v. Unum Provident Corp., 405 F.3d 373, 381 (6th Cir. 2005).
Furthermore, in the instant case, MetLife is authorized both to decide whether an employee is eligible for benefits and to pay those benefits. This dual function creates an apparent conflict of interest. Glenn v. MetLife, et al., 461 F.3d at 666 (citing Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 527 (6th Cir. 2003), overruled on other grounds by Black Decker Disability Plan v. Nord, 538 U.S. 822 (2003); Glenn v. Metropolitan Life Ins. Co., No. 05-3918, 2005 WL 1364625 at *4 (S.D. Ohio, June 8, 2005) (citing Firestone Tire Rubber, 489 U.S. at 115 ("[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a `facto[r] in determining whether there is an abuse of discretion.'") (internal citation omitted)).
Additionally, Courts have recognized that a disability determination by the Social Security Administration is relevant in an action to determine the arbitrariness of a decision to terminate benefits under and ERISA plan. Glenn v. MetLife, et al., 461 F.3d at 666; see also Calvert v. Firstar Finance, Inc., 409 F.3d 286m 295 (6th Cir. 2005) (An ERISA plan administrator's failure to address the Social Security Administration's finding that the claimant was "totally disabled" is yet another factor that can render the denial of further long-term disability benefits arbitrary and capricious). Here, MetLife's termination letters did not address plaintiff's Social Security Disability Determination.
III. DISCUSSION
To be found disabled under the Plan, plaintiff must satisfy the Plan's definition of "total disability." AR 515. For the first 24 months, "total disability" is defined as being "unable to perform the material duties of your occupation with your employer." Id. After 24 months, the definition of "total disability" changes and requires one to be "totally incapable . . . of performing the material duties of any gainful occupation for which you are reasonably fit based on training, education or experience." Id. Furthermore, the burden is on the claimant to submit proof of disability. AR 522. The proof "must be satisfactory to MetLife." Id.
Plaintiff contends that (1) he comes within the term "total disability" as defined in the Plan; and (2) the Plan administrator acted in an arbitrary and capricious manner by finding otherwise. The undersigned agrees, and for the reasons that follow, recommends that judgment be entered in favor of plaintiff reinstating his long-term disability benefits.
A.
Here, plaintiff's benefits were terminated based on his activities captured by the video surveillance. However, plaintiff's videotaped activities do not indicate that he is capable of performing gainful activity. He is not seen engaging in activity for a period of time equivalent to an actual work day, nor does the tape establish that he has the sitting tolerance to engage in sedentary work.
Specifically, the Diary Report from MetLife on November 22, 2000 states:
A cursory review of transferrable skills indicates that if [plaintiff] is capable of sedentary work, with a sit tolerance of at least 45 minutes, there are approximately 12 jobs for which he would qualify and provide a gainful wage. OT functional interpretations gives a 23 min stand/walk ability . . . but provides no information on sitting tolerance . . . Would recommend that a full body FCE be done with a focus on sitting ability to be done — to observe sitting tolerance. . . .
AR 10.
On May 7, 2001, the Diary Report states "sitting tolerance needed clarification (planned FCE initiated)." Furthermore, the January 13, 2003 diary entry states: "The [plaintiff] is capable of performing meaningful activities. The ability to drive, carry light weights, and sit for a period of time upwards of greater than 3 ½ hours would indicate the [plaintiff] is capable of performing a wide range of activities found within employment." AR 25.
Here, MetLife did not perform an FCE to confirm Plaintiff's sitting tolerance, as recommended in the above noted diary entries. As noted above, Dr. Thomas discouraged MetLife from performing an FCE because he believed Plaintiff "would self-limit and manipulate the testing in his favor." AR. Furthermore, MetLife's contention that Plaintiff is capable of sedentary work because he could sit for 3 ½ hours at the casino is unsupported.
As noted by plaintiff, there are large gaps in time of the video from the casino. The actual footage of plaintiff sitting on a stool gambling is approximately 30 minutes. Plaintiff asserts that during the remaining time, he was either changing positions, taking his medication or in a hotel room lying down. AR 44. MetLife does not offer any evidence and/or argument to refute plaintiff's explanation.
Moreover, the supporting opinions supplied by MetLife do not properly establish that plaintiff is capable of gainful activity as defined by the Plan. As noted above, Ms. Lyth, the occupational therapist and FCE coordinator who reviewed the video surveillance from July 2000, concludes that "there is a lack of demonstrated functional consistency between Mr. Clarke's natural functionality and his physicians restrictions." AR 150. Thus, Ms. Lyth's report does not state that plaintiff is capable of working.
Similarly, in February 2002, after reviewing the plaintiff's medical records and the video surveillance, Dr. Thomas concludes that "there are serious inconsistencies and inaccuracies apparently reflected in the medical reports based upon the information supplied by Mr. Clarke." Again, Dr. Thomas does not provide an opinion that plaintiff is capable of working.
Additionally, after receiving plaintiff's appeal, MetLife referred plaintiff's records to Dr. Silverman. Dr. Silverman stated that while plaintiff does have problems with his low back, "there is a marked discrepancy between the observed activities of Mr. Clarke under surveillance and the way he is presented to his doctor on his visits." AR 36. Dr. Silverman concluded that "[t]he ability to drive, carry light weights, and to sit for periods of time upwards of greater than 3 ½ hours at a stretch would indicate that he is capable of performing a wide range of activities found within employment." Id. (emphasis added). However, as noted above, the video surveillance does not establish that plaintiff is capable of sitting for 3 ½ hours, as he is only seen sitting for approximately 30 minutes.
The undersigned does not dispute the inconsistencies between plaintiff's self-reported limitations and the activity observed on the videotape. However, plaintiff's taped activities do not establish that he is capable of "performing the material duties of any gainful occupation." See McDonald, 347 F.3d at 170-71 (the mere possibility that ERISA plaintiff might be able to return to some type of gainful employment, in light of overwhelming evidence to the contrary, is an insufficient basis upon which to deny LTD benefits.); see also Clausen v. Standard Ins. Co., 961 F.Supp. 1446, 1457 (D.Colo. 1997) (determining that video surveillance where plan participant walked her dog for two miles does not suggest participant was capable of that activity on a sustained basis).
B.
Furthermore, MetLife argues that it "did not have to find that plaintiff was capable of sustained employment to terminate plaintiff's LTD benefits" because the surveillance video tapes proved that plaintiff "consistently misrepresented his functional abilities, thereby invalidating the evidence plaintiff had submitted in support of his continued right to benefits." Doc. 47 at 4-5. MetLife asserts that the instant case is indistinguishable from other cases in which courts have upheld a plan administrator's decision to terminate benefits based on the lack of reliability of the plaintiff's subjective complaints in light of contradictory video surveillance. See Marcum v. Hartford Life Accident Insurance Company, Case No. 3:04CV-246-S, 2005 U.S. Dist. LEXIS 9908 (W.D. Ky May 23, 2005); Onfrieti v. Metropolitan Life Insurance Co., 320 F. Supp. 2d 1250 (M.D. Fla. 2004).
The undersigned respectfully disagrees and finds that MetLife's assertion that Plaintiff's videotaped activities render the objective medial evidence unreliable is arbitrary and capricious.
In Onofrieti, the Court found that the information the plaintiff had provided to her doctors was unreliable. Onfrieti, 320 F.Supp.2d at 1254. The Court concluded:
Although Plaintiff's doctor's opine that she is unable to work, those opinions are not based on objective medical evidence. Instead, the doctors rely on Plaintiff's subjective and unreliable claims of pain. Therefore, the administrator's decision was not wrong in denying Plaintiff's claim. Id. at 1255.
Thus, in Onfrietti, the opinions of plaintiff's treating physicians were not supported by the objective medical evidence.
Furthermore, in Marcum, the plaintiff's benefits were terminated after his treating physician, Dr. Peters, stated that the plaintiff could perform sedentary work. Marcum v. Hartford Life Accident Insurance Company, Case No. 3:04CV-246-S, 2005 U.S. Dist. LEXIS 9908 * 1 (W.D. Ky May 23, 2005). However, his benefits were reinstated after Dr. Peters issued a "correction letter" stating that the plaintiff was disabled because he could no longer tolerate his medication. Id. at * 4.
Thereafter, Hartford videotaped Marcum's activities. Although he claimed that he only used a cane, could not squat, bend or kneel, he was seen running nine errands over an approximately five hour period on one day, and making eighteen stops over a 10 ½ hour period on another day. The video showed Marcum getting in and out of his car and going up and down front steps without apparent distress. Marcum's benefits were again terminated. The Court upheld that termination, finding that:
Hartford had every reason to question the reversal of position taken by Dr. Peters after Hartford initially terminated Marcum's benefits. Upon investigation, Hartford gathered evidence which would rationally call into serious question, Marcum's truthfulness about his level of pain and disability. Dr. Peters is a pain management specialist, not an orthopedic surgeon . . . Hartford had a rational basis in the evidence of record for finding that Marcum could perform sedentary work.Id. at *9-10. Again, as in Onfrieti, in Marcum the termination of benefits was upheld in light of his videotaped activities and lack of objective medical evidence.
Additionally, the video surveillance in Marcum shows him engaging and sustaining activity significantly longer than the plaintiff in the instant case.
Here, irrespective of plaintiff's self-described limitations and subjective complaints, the objective medical evidence of record remains unchanged. As noted above, plaintiff underwent spinal fusions in November 1990 and November 1992 due to spinal stenosis and degenerative disc disease. Additionally, in November 1994, Dr. Millner performed an inter-traverse and lateral spinal fusion L4-5, segmental instrumentation (TRSH) and iliac crest bone graft. (AR 110-112).
X-rays taken in February 1999 showed degenerative change somewhat more proximally with probably calcification of the anterior longitudinal ligament and possibility of some form of ankylosing spondylitis. AR 77.
A January 17, 2001 MRI of the cervical spine was significant for marked central disc bulging at level C5-6 and C6-7 with impingement upon the subarachnoid space and minimal on the exit foramina bilaterally. AR 43, 101, 250.
Moreover, plaintiff's November 1, 2002 FCE stated that "Mr. Clarke's severe limitation in sitting tolerance is well-substantiated by objective MRI findings in the lumbar spine on 6/13/94 that demonstrated extensive scar tissue totally surrounding the thecal sac and extending into both neural foramina and surrounding the nerve roots." AR 46.
Also in November 2002, Dr. Drohan noted that plaintiff has been on social security disability for 10 years and he has been "diagnosed with irreversible and progressive adhesive arachnoiditis, genomic degenerative disc disease with 8 discs involved at present time and spinal stenosis." AR 67.
Additionally, Dr. Millnar repeatedly certified plaintiff's condition, noting objective findings in support of his conclusion. (AR 140) (Report of 2/2001 indicated x-rays and MRI of 01/01 reveal progressive degenerative disease); (AR 142) (Report of 2/2000 indicated x-rays/MRI reflect degenerative disc disease, clumping nerve roots, massive scar tissue). Moreover, MetLife considered plaintiff to be totally disabled under the terms of the Plan from March 1993 through May 2002.
Thus, plaintiff's disabling back condition remains supported by the objective evidence of record. MetLife's assertion that plaintiff's misrepresentation of his functional limitations somehow invalidates objective medical evidence is unreasonable. See Osbun v. Auburn Foundry Inc., 293 F.Supp.2d 863, 872 (N.D. Ind. 2003) (Assertion that benefits termination is reasonable as long as the claimant is caught exaggerating his symptoms is unsupported by any prior case law and is unpersuasive).
Accordingly, taking into account the existence of a conflict of interest, MetLife's failure to consider plaintiff's Social Security award, plaintiff's observed videotaped activity, and the objective findings and medical evidence as whole, the undersigned concludes that the MetLife's decision to "deny long-term benefits in this case was not the product of a principled and deliberative reasoning process." See Glenn, 461 F.3d 660 at 674.
VI.
The administrative record does not support a "reasoned explanation" for the termination of benefits. MetLife's decision — to terminate plaintiff's disability benefits as of May 15, 2002 — was arbitrary and capricious. Accordingly, plaintiff's motion to reverse the administrative record (doc. 31) is hereby GRANTED; defendant's cross-motion for judgment (doc. 34) is hereby DENIED; and judgment is ENTERED IN FAVOR OF PLAINTIFF.
IT IS SO ORDERED.