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weighing subjective and objective evidence and finding that, even crediting plaintiff's subjective complaints regarding pain and fatigue, plaintiff "overstated" her complaints and was still capable of performing light to sedentary work
Summary of this case from Fitzpatrick v. Bayer CorporationOpinion
5:99-cv-1943 (NAM/GHL).
March 22, 2005
Robert J. Clune, Esq., Law Offices of Williamson, Clune Stevens, Ithaca, New York, for Plaintiff.
Kevin G. Horbatiuk, Esq., Russo, Keane Toner, LLP, New York, New York, for Defendant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On September 26, 2001, the Court held a bench trial on this matter. The Court found that plaintiff Janet Krizek failed to show she was totally disabled, and that she was not entitled to benefits under the terms of a group long-term disability benefits policy issued by defendant Insurance Company of North America. The Court entered judgment for defendant. Plaintiff appealed the decision and on September 24, 2003, the Second Circuit vacated the judgment and remanded the case for further proceedings. Krizek v. Cigna Group Ins., 345 F.3d 91 (2d Cir. 2003). For the reasons set forth below, the Court enters judgment for defendant.
II. BACKGROUND
Familiarity with the facts of this case is assumed based on the Court's Memorandum-Decision and Order entered on September 26, 2002, and the Second Circuit's decision in this matter. See Krizek, 345 F.3d 91. The Court incorporates all factual findings set forth in its prior Memorandum-Decision and Order, except those which the Second Circuit determined were made in error. In short, plaintiff suffers from a "mysterious ailment" which has defied definitive diagnosis. Plaintiff began experiencing pain, fatigue, and a litany of other discomforts in 1991 or 1992. Plaintiff's symptoms worsened over time and in 1998 forced her to stop working at Cornell University, where she had been employed as a laboratory technician since 1981. Plaintiff applied for long-term disability benefits under the group policy ("the plan") INA issued to her former employer, Cornell University. Defendant denied her claim on the ground that she was not "disabled" under the definition of the plan. Plaintiff appealed the denial and defendant upheld its determination. Plaintiff subsequently filed the instant action pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), challenging defendant's decision to deny her claim for long-term disability benefits.
Following a one-day bench trial, and after reviewing the administrative record de novo, the Court concluded that there was no objective medical evidence which would support a finding that plaintiff was disabled within the meaning of the plan. The Court further found that plaintiff's subjective complaints regarding her pain were not credible and thus could not support a finding of disability. Plaintiff appealed this decision.
On appeal, the Second Circuit found that: (1) the Court improperly considered plaintiff's trial testimony; (2) the Court erroneously inferred that plaintiff's work with the Special Olympics undercut her complaints of pain; (3) the Court lacked a basis for concluding that plaintiff's assistance in drafting her comprehensive administrative appeal demonstrated that plaintiff was not disabled; and (4) the Court incorrectly noted that the administrative record contained only one finding by a physician, Dr. Alan Midura, which indicated that plaintiff's symptoms were disabling, because Dr. Thomas Bunch, from the Mayo Clinic, also stated in his report that plaintiff "is tired all the time and this has been going on long enough that it is interfering with her life and she can't work." The Second Circuit declined plaintiff's request for reversal of judgment because it could not "conclude, based on the lower court's factual findings that were not clearly erroneous, that the weight of the evidence compels judgment in her favor." Krizek, 345 F.3d at 102, n. 6. The Second Circuit vacated the Court's judgment for defendant and remanded for further proceedings because it was "unable to determine whether, absent these four errors, the District Court still would have granted judgment for INA.". Id., at 102.
III. DISCUSSION
The Court reviews INA's decision to deny plaintiff's claim for long-term disability benefits, de novo. Connors v. Connecticut Gen. Life Ins. Co., 272 F.3d 127, 134 ("Unless an ERISA plan grants an administrator discretion in determining whether a participant is entitled to benefits, a district court reviews an ERISA administrator's eligibility determination de novo.") (citing Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). The Court applies the de novo standard of review to issues concerning plan interpretation and in resolving factual disputes. See Knistler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249-51 (2d Cir. 1999). Additionally, because plaintiff has not shown "good cause" or a "demonstrated conflict of interest in the administrative reviewing body", the Court's review is confined to the administrative record. DeFelice v. American Int'l Life Assurance Co. of N.Y., 112 F.3d 61, 67 (2d Cir. 1997).
The plan states: "An Employee will be considered Totally Disabled if because of Injury or Sickness, he is unable to perform all the essential duties of any occupation for which he is or may reasonably become qualified based on his education, training or experience." According to the plan, "[t]he term Sickness means a physical or mental illness. It also includes pregnancy." The plan further explains: "Disabilities considered to result from Sickness. A period of Total Disability will be considered to result from Sickness if it: (1) results directly or indirectly from Sickness or innfections [sic], except an infection resulting from an accidental cut or wound; or (2) is caused by hernia or injuries resulting in hernia." Plf's Ex. 1, p. 17.
A. Objective Evidence
There is, as the Court previously found, no objective medical evidence in the administrative record which would support a finding that plaintiff is disabled. This conclusion was not disturbed on appeal. See Krizek, 345 F.3d 91 (finding that "[t]he errors discussed above all pertain to the District Court's rejection of Krizek's subjective complaints regarding her pain."). To review, according to the administrative record, plaintiff has seen approximately forty physicians since the onset of her symptoms in 1991, and has traveled to the Mayo Clinic in Rochester, Minnesota, twice. The two-volume administrative record is replete with laboratory reports and reports by physicians who have examined and/or treated plaintiff. Plaintiff has had MRIs (magnetic resonance imaging), biopsies, x-rays, and multiple CT scans (computed tomography imaging). These reports indicate, almost uniformly, negative and/or normal findings, and, other than "tenderness on palpation", no physician adduced objective evidence of plaintiff's complaints. Although at least one physician diagnosed plaintiff with fibromyalgia, the ailment from which these symptoms result remains undiagnosed. Plaintiff's physicians have prescribed approximately thirty medications for her symptoms, including Percocet for her pain, none of which have alleviated her discomfort.
As discussed further, infra, at defendant's request, plaintiff underwent a functional capacity evaluation. The report and addendum indicated that despite her restrictions and limitations, plaintiff had the functional capacity to perform sedentary work on a full-time basis. Thus, in the absence of objective evidence demonstrating that plaintiff is totally disabled, the Court must determine whether plaintiff's subjective complaints regarding her pain establish that she is totally disabled within the meaning of the plan.
B. Subjective Evidence
"It has long been the law of this Circuit that `the subjective element of pain is an important factor to be considered in determining disability.' While a district court reviewing an administrator's decision de novo is not required to accept such complaints as credible, it cannot dismiss complaints of pain as legally insufficient evidence of disability". Connors, 272 F.3d at 136 (quoting Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (internal citations omitted)).
Plaintiff has described some of her symptoms as follows: difficulty concentrating, memory problems, cognitive difficulties, dry eyes, inflamed eye, "blurred vision, burning gritty, intolerant to bright light", dry mouth, swollen major salivary glands, change in taste, smell, and hearing, dry skin, difficulty swallowing food without liquid, hair loss, swollen and sore thyroid, tinnitus, dizzy spells, photosensitivity (i.e., flu-like symptoms in the sun), hypertension, fainting, tenderness in right side and left tibial area, pain in hip, foot, leg, side, shin, jaws, chest wall, back, left shin, right scapula, shoulder, and neck, general body pains, rash on legs, problem with fine motor control, canker sores, sore tongue and gums, too hot or too cold, irregular body temperature, difficulty sleeping, fatigue, and an inability to sit, stand, or walk for any significant length of time.
In this case, plaintiff's subjective claims of disabling cognitive difficulties, and disabling pain and fatigue are supported by her own statements, and are noted in her physicians' records. The administrative record also contains letters written by plaintiff's friends, family members, and her former supervisor at Cornell regarding plaintiff's condition.
Plaintiff and her husband contend that plaintiff has difficulty with her memory and that when plaintiff attempted to prepare her administrative appeal, she had "had a very hard time" focusing and "would often write down [her] thoughts, go back and make corrections, and show it to [her] husband, just to have him ask what [she] meant by this gibberish?". Plaintiff's former supervisor at Cornell University wrote in his letter that plaintiff had been an excellent employee but that toward the end of her employment, he observed that plaintiff had difficulty remembering "what she had to do, and forgot to do things I asked her to do." Plaintiff asserts that as a result of her cognitive difficulties, she cannot work.
There is no evidence or specific examples which would support plaintiff's assertion regarding the "gibberish" she allegedly wrote when trying to record her thoughts.
The administrative record contains a functional capacity report and addendum, and a mini mental status exam that Dr. Bonnie Koreff-Wolff administered, both of which are relevant to plaintiff's alleged "cognitive difficulties." The functional capacity report and addendum state that plaintiff had some cognitive difficulties during the evaluation to the extent that she had "problems remembering a list of doctors and clinics she attended" and that her husband had to assist her in this regard. Given the more than forty physicians and clinics plaintiff has visited since the onset of her symptoms, plaintiff's difficulty recounting them is understandable. Moreover, the addendum states that plaintiff "was able to remember directions and instructions over time in all parts of the exam." Further, Dr. Koreff-Wolff reported that plaintiff "actually did quite well on" the mini mental status exam, but was only able to remember "one out of three objects at five minutes" and "was off by a day on the date." While plaintiff's ability to remember one of three objects may be some indication of a difficulty with memory, plaintiff's being "off by a day on the date", is indeed a relatively common mistake.
Plaintiff, citing to her brief on appeal, urges the Court to find fault with the functional capacity assessment. The Court previously concluded that there was no reason to question the adequacy of the functional capacity assessment. That conclusion was not disturbed on appeal and the Court finds no basis for reconsidering its prior conclusion.
The Court concludes, having weighed the clinical evidence, which does not indicate cognitive difficulties to the same degree as plaintiff alleges, together with plaintiff's statements, as well as the statements by plaintiff's husband and former supervisor, that while plaintiff may well have some cognitive difficulties, they are overstated to the extent plaintiff contends they are disabling. Thus, the Court finds that plaintiff's complaints that her cognitive difficulties prevent her from working in any position, are not persuasive.
Plaintiff also claims that disabling pain and fatigue prevent her from working. With regard to plaintiff's claims of disabling pain and fatigue, the administrative record contains letters from plaintiff's friends and family, which indicate that prior to the onset and progression of her symptoms, plaintiff was an active individual who engaged in activities including canoeing, coaching a Special Olympics cycling team, cross-country skiing, cooking, and caring for her home. Over time, as she experienced increasing fatigue, "constant pain", and difficulty sleeping, plaintiff had to give up these activities. One friend indicated that plaintiff "fatigues easily" when she chairs their Special Olympics Committee meetings, and another stated that when they camp together, plaintiff's husband and son do all the work. According to plaintiff's husband, plaintiff's pain and fatigue have rendered her unable to cook or perform household chores, and make it difficult for plaintiff to do little more than make a "PJ" sandwich.
As discussed above, at least two physicians, Drs. Midura and Bunch, indicated in reports that plaintiff was "totally disabled". Neither physician, however, offered any opinion as to plaintiff's functional capacity. Moreover, in the absence of any objective medical evidence in either report, it is manifest that these conclusions are based on their acceptance of plaintiff's subjective complaints. Such acceptance is "more or less required of treating physicians," Maniatty v. Unumprovident Corp., 218 F.Supp.2d 500, 504 (S.D.N.Y. 2002), but by no means required of the Court.
INA asked Dr. Midura, as well as two other of plaintiff's treating physicians, for his opinion regarding plaintiff's restrictions and limitations and commentary on which responsibilities plaintiff could not perform at Cornell and what accommodations could be made to assist plaintiff in returning to work. None of these physicians responded with this information.
The only assessment of plaintiff's functional capacity in the administrative record is the independent evaluation plaintiff underwent at INA's request. The functional capacity assessment found that plaintiff could occasionally lift up to 32.5 pounds, frequently lift up to 25 pounds, and frequently sit, stand, walk, reach overhead, squat, twist, climb stairs, and type. Moreover, the functional capacity report and addendum indicate that the increase in discomfort, pain, and signs of fatigue plaintiff exhibited during the evaluation as well as plaintiff's subjective complaints 24 hours post-testing, were expressly considered in the assessment of plaintiff's functional capacity. While the assessment initially found that plaintiff showed the capacity to work at the light level for a four to five hour day, in view of the increase in discomfort, pain, and signs of fatigue plaintiff exhibited over the course of the evaluation as well as the pain and fatigue she reported the following day, it was determined, as stated in the addendum, that plaintiff should be able to work at the sedentary level for an eight hour day.
"I took a nap and slept for 4 hours after the test. Today I woke up and needed to take a Percocet for the pain. I have not ever hurt all over my body like this before. Both my hips, both shoulders, and my left lower leg are in a lot of pain and burning."
"Sedentary work involves lifting no more than 10 pounds at a time . . . [and] [a]lthough a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties." 20 C.F.R. § 416.967(a) (Social Security). "Sedentary work . . . generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Although plaintiff suffers some pain and fatigue, the Court finds, having weighed the objective and subjective evidence, that plaintiff's complaints are overstated to the extent plaintiff claims they prevent her from doing any work. To be sure, plaintiff's pain and fatigue have reduced her functional capacity significantly, and there is no dispute that plaintiff cannot return to her prior position at Cornell. In view, however, of the functional capacity assessment, which expressly incorporated plaintiff's complaints regarding pain and fatigue — both during and 24 hours after the assessment — in determining plaintiff's capacity to work, and still found that plaintiff could perform sedentary work, the Court finds plaintiff's complaints regarding disabling pain and fatigue are overstated and would not prevent her from sedentary work. Indeed, the administrative record contains several positions identified in the "Transferable Skills Analysis and Labor Market Survey" which were available and within plaintiff's abilities and limitations.
In reaching this conclusion, the Court credits, to some degree, plaintiff's complaints regarding pain and fatigue. Absent a diagnosis or objective medical evidence, the subjective evidence in this case provides the strongest basis for finding plaintiff's work capacity is diminished. Thus, because there are positions in which plaintiff is capable of working despite her limitations and restrictions, the Court finds plaintiff has not satisfied her burden of showing she is totally disabled within the meaning of the plan. For these reasons, even setting aside the evidence pertaining to the errors the Second Circuit identified in the Court's prior decision, the Court finds that defendant is entitled to judgment in its favor.
Alternatively, the Court finds, given the absence of a definitive diagnosis of the sickness from which plaintiff's symptoms stem, that plaintiff has not satisfied the definition of "totally disabled" within the meaning of the plan. The plan states that "[a]n Employee will be considered Totally Disabled if because of Injury or Sickness, he is unable to perform all the essential duties of any occupation for which he is or may reasonably become qualified based on his education, training or experience." According to the plan, "[t]he term Sickness means a physical or mental illness." (Emphasis added). The administrative record contains no medical evidence identifying the underlying physical or mental illness in this case or attributing plaintiff's symptoms to some abnormality demonstrable by medically acceptable techniques. See Maniatty, 218 F.Supp.2d at 504 ("given the virtual absence of any material objective evidence to support plaintiff's claim, it can hardly be said that the administrator acted in an arbitrary and capricious matter in rejecting plaintiff's claims. Indeed, even if this Court were to apply a de novo standard of review, the same results would follow, for virtually the only objective evidence in the administrative record regarding plaintiff's allegedly continuing back pain is an MRI that showed a `small recurrent disc herniation' in 1998. . . . All subsequent tests designed to uncover neurological damage were negative. . . . This hardly constitutes a sufficient basis for any reasonable conclusion that plaintiff was so disabled as to qualify for long-term benefits"); see also Gallagher v. Schweiker, 697 F.2d 82 (2d Cir. 1983) ("once . . . an impairment has been diagnosed, pain caused by the impairment may be found to be disabling even though the impairment `ordinarily does not cause severe, disabling pain.' The pain need not be corroborated by objective medical findings, but some impairment must be medically ascertained.") (quoting Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979)). Thus, in the absence of any objective evidence showing that plaintiff suffers a physical or mental illness and therefore a sickness as defined by the plan, plaintiff has failed to satisfy the definition of "totally disabled" under the terms of the plan.
Having reviewed the administrative record de novo, and having considered plaintiff's subjective complaints regarding her pain and other symptoms, the Court concludes that the weight of the evidence does not demonstrate that plaintiff is "Totally Disabled" under the terms of the plan. Accordingly, the Court enters judgment for defendant.
IV. ATTORNEY'S FEES
Because the Court finds for defendant in this matter, plaintiff's application for attorney's fees is denied.
V. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that judgment be entered for defendant; and it is further
ORDERED that plaintiff's application for attorney's fees is denied.
IT IS SO ORDERED.