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Wenzel v. Prudential Insurance Company

United States District Court, E.D. New York
Mar 25, 2005
03-CV-5751 (JS) (E.D.N.Y. Mar. 25, 2005)

Opinion

03-CV-5751 (JS).

March 25, 2005

Aba Heiman, Esq., Fusco, Brandenstein Rada, PC, Woodbury, NY, for Plaintiff.

Edward Joseph Boyle, Esq., Wilson, Elser, Moskowitz, Edelman Dicker, L.L.P., New York, NY, for Defendant: Prudential Insurance Company of America.

No Appearance, Aon Corporation.


ORDER


Pending before the Court is Plaintiff's motion pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, seeking to enforce her right to Long Term Disability ("LTD") benefits under a Long Term Group Disability Plan ("Plan") issued by Defendant Prudential Insurance Company of America ("Prudential").

The policy was issued by Defendant Prudential to Defendant Aon Corporation ("Aon") for the benefit of its employees. The Court has jurisdiction over this action pursuant to the Employee Retirement Income and Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001 et seq., specifically § 1132(a)(1)(B).

BACKGROUND

Plaintiff is a fifty-eight year old female. She was employed at Aon as a Production Specialist until August 31, 2001, when she ceased working due to her medical condition. At the time she ceased working, Plaintiff was earning $40,186.00 per year. (R. at 280.)

On January 29, 2002, Plaintiff filed an LTD claim with Prudential, citing numerous reasons for her entitlement to benefits. Plaintiff submitted medical records indicating that she suffered from fibromyalgia and osteoarthritis and that she had recently undergone a left knee arthroscopy. In her claim form, Plaintiff indicated that she would also be applying to the Social Security Administration ("SSA") for disability benefits.

In a letter dated April 2002, Prudential denied Plaintiff's LTD benefits claim, stating that Plaintiff failed to offer objective medical evidence "demonstrating . . . [that she could not perform] the substantial and material duties of [her] occupation as a Production Specialist."

Plaintiff appealed Prudential's January 2002 determination. On May 31, 2002, Prudential denied Plaintiff's appeal, once again noting that Plaintiff's objective medical evidence did not support a finding of disability. Prudential offered Plaintiff the opportunity to file a second appeal.

On July 19, 2002, before Plaintiff filed a second appeal, Plaintiff received from the SSA a notice of award, finding her disabled as of August 31, 2001. The SSA awarded Plaintiff a monthly benefit of $1,055.00, effective February, 2002.

There is a disparity between the disability date and the SSA benefits commencement date because a party must be disabled for five continuous months in order to become eligible for SSA benefits.

On July 23, 2002, Plaintiff, in the furtherance of filing her second appeal, sent Prudential a letter, attaching a copy of the SSA's notice of award, and requesting a copy of her claim file. Plaintiff requested a copy of the Prudential claim file so that she would be able to compare her prior submissions to Prudential with her submissions to the SSA, and file her second appeal accordingly.

On March 10, 2003, Plaintiff filed her second appeal with Prudential. On May 19, 2003, Prudential denied Plaintiff's appeal. On Novemebr 14, 2003, Plaintiff commenced this action.

DISCUSSION

I. Standard of Review

The Parties disagree concerning the appropriate standard of review with respect to Prudential's benefits determination. Plaintiff contends that the Court must review Prudential's benefits determination de novo. Prudential contends that the Court should employ the more deferential, "arbitrary and capricious," standard of review.

Principles of trust law govern a district court's review of a plan administrator's benefits determination. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). Accordingly, this Court's review of Prudential's benefits determination is de novo, "unless the benefit plan gives [Prudential] discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Kinstler, 181 F.3d at 249 (quotingFirestone, 489 U.S. at 115). Prudential "bears the burden of proving that the arbitrary and capricious standard of review applies." Id.

There are no "magic words' necessary for a policy provision to confer discretionary authority upon the plan administrator. See Id. at 251. In order to be effective, however, the delegation of final decision-making authority to the administrator must be clear. See id.; Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995); Scannell v. Metropolitan Life Ins. Co., No. 03-CV-990. 2003 WL 22722954 at *4 (S.D.N.Y. Nov. 18, 2003). A party seeking the more deferential standard of review must point to language "stating the award of benefits is within the discretion of the plan administrator or language that is plainly the functional equivalent of such wording." Kinstler, 181 F.3d at 252.

Some examples of provisions found to confer discretionary authority upon the administrator include, "[the insurer] makes the final decision on all claims," Scannell, 2003 WL 22722954 at *4, and "[the administrator] shall determine conclusively for all parties all questions arising in the administration of the [Pension] Plan and any decision of such Committee shall not be subject to further review." Pagan, 52 F.3d at 441. InKinstler, the Second Circuit determined that a provision stating that "[the claimant must submit] "satisfactory proof of Total Disability to [the administrator]" was not sufficient to confer discretion upon the administrator. 181 F.3d at 251

Here, Prudential relies on two provisions as evidence of its discretion to determine benefits entitlement: (1) "Benefits are paid when Prudential receives written proof of loss;" and (2) "Total disability exists when Prudential determines that all of these conditions are met." (emphasis added) (R. at 68, 79.) The Court fails to see how the first provision bestows any discretionary authority upon Prudential. The second provision, however, presents a closer question.

Notably, the appropriate interpretation of the second provision is not a matter of first impression within the district courts of this Circuit. In Larsen v. Prudential Insurance Company of America, Judge Gerard L. Goettel, of the District of Connecticut, found the same provision vested Prudential with discretionary authority such that the arbitrary and capricious standard of review applied. 151 F. Supp. 2d 167, 171-72 (D. Conn. 2001). In O'Sullivan v. Prudential Insurance Company of America, Magistrate Judge Mark D. Fox, of the Southern District of New York, found the same provision insufficient to confer discretion upon Prudential, and applied a de novo review of Prudential's benefits determination. No. 00-CV-7915, 2001 WL 727033 at **2-3 (June 28, 2001 S.D.N.Y.) ("O'Sullivan I"). The discord is understandable, as both courts have valid arguments supporting their conclusion.

In Larsen, the district court did not provide a lengthy discussion of its finding, but did cite to several cases sharing a common thread. Specifically, in each case relied upon by theLarsen court, discretion was deemed conferred because of a specific reservation of decision-making power with the insurer.See Pagan, 52 F.3d at 441; Kocsis v. Standard Ins. Co., 142 F. Supp. 2d 241, 251 (D. Conn. 2001); Kiley v. Travelers Indem. Co. of Rhode Island, 853 F. Supp. 6 (D. Mass. 1994); accord Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820, 827 (8th Cir. 2001); Machovec v. The Prudential Ins. Co. of America, No. 03-CV-1920, 2004 WL 1505523 at *4 (D. Md. June 28, 2004).

The O'Sullivan I court declined to find an express grant of discretionary authority because, inter alia, "benefit plan documents which courts have deemed to have the functional equivalent of an express grant of discretionary authority have featured language that clearly confers upon the plan administrator . . . the exclusive power to interpret the plan and/or to decide matters arising in connection with the administration and operation of the plan." 2001 WL 727033 at *3. The Court agrees with this synthesis of the cases, but does not agree with the O'Sullivan I court's outcome.

The Court finds the phrase "when Prudential determines," to be the "plain, functional equivalent" of a discretionary provision.See Kinstler, 181 F.3d at 252. Importantly, the Court fails to see any interpretation of this provision that does not translate to an absolute delegation to Prudential of final decision-making authority with respect to benefits determinations. While Prudential could have, and perhaps should have, included certain "magic words" articulating the precise breadth of its discretion in making benefits determinations, such "magic words" are not required in this Circuit. Indeed, requiring phrases such as "conclusively" or "final determination," in order to confer discretion would endorse the very "magic words" approach refuted by this Circuit.

Accordingly, the Court reviews Prudential's determination under the arbitrary and capricious standard. "Under the arbitrary and capricious standard, a court may overturn a decision to deny benefits only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law."Scannell, 2003 WL 22722954 at * 4 (internal quotations, citations omitted). The Court must determine whether Prudential's determination was "based on a consideration of the relevant factors," Zuckerbroad v. Phoenix Mut. Life Ins. Co., 78 F.3d 46, 49 (2d Cir. 1996), and should not substitute its own judgment for Prudential's.See Pagan, 52 F.3d at 442.

II. The Denial Of Benefits

Prudential cites as a basis for denying benefits Plaintiff's purported failure to explain the relationship between her disabilities and her ability to perform the tasks associated with her job. While Prudential does not dispute that Plaintiff has problematic health conditions, it maintains that such conditions do not preclude Plaintiff from working. After reviewing the record, the Court finds no basis to reverse Prudential's determination. Accordingly, Plaintiff's motion for judgment on the pleadings is DENIED, and Defendant's motion for judgment on the pleadings is hereby GRANTED.

A. Plaintiff's Evidence Of Disability

Plaintiff bears the burden of establishing her entitlement to disability benefits under the Plan. See Paese v. Hartford Life Accident Ins. Co., No. 02-CV-9778, 2004 WL 764760 at * 9 (S.D.N.Y. Apr. 9, 2004). Here, the Plan provided that total disability exists when: "(1) Due to Sickness or accidental injury . . . you are not able to perform, for wage or profit, the material and substantial duties of your occupation[;] . . . (2) You are not working at any job for wage or profit[; and] (3) You are under the regular care of a doctor." (R. at 68.)

Plaintiff contends that she has provided ample evidence of her total disability as defined by the Plain. Plaintiff's evidence includes the records of: (1) Dr. Bagdig Baghdassarian ("Baghdassarian"), her treating internist; (2) Dr. Placido Morano, her rheumatologist; (3) Dr. Cristobal Durant, her orthopedist; and (4) Dr. Seymour Einhorn, a consulting physician retained by her attorneys.

1. Doctor Baghdassarian's Assessment

Dr. Baghdassarian's attending physician statement ("APS"), dated September 14, 2001, indicates that Plaintiff suffered from fibromyalgia and osteoarthritis, and that Plaintiff suffered muscle spasms when seated for long periods of time. The statement further states that Plaintiff was disabled as of August 31, 2001, with a prospective return to work set for December 3, 2001. Supplemental APSs, issued on October 22 and October 31, 2001, essentially reiterate the findings found in the September 14, 2001 statement.

Dr. Baghdassarian's January 11, 2002 APS notes indicate that Plaintiff had recently undergone arthroscopic surgery on her left knee, and that Plaintiff continued to have difficulty sitting, standing and walking for prolonged periods of time. Dr. Baghdassarian listed Plaintiff's prospective return to work date as "undetermined, pending follow-up examinations." Dr. Baghdassarian's January 24, 2002 APS reiterated much of the same findings.

2. Doctor Morano's Assessment

Dr. Morano's assessment was provided in a narrative detailing his treatment history with Plaintiff. In the narrative Dr. Morano explains that he had been treating Plaintiff since July 1997, when she "complained of pain in multiple areas of the body and fatigue with insomnia for over ten years." (R. at 115.) At that time, Dr. Morano diagnosed Plaintiff with fibromyalgia and prescribed her Elavil, Flexeril and Tylenol. (Id.)

After a June 2001 visit, Dr. Morano diagnosed Plaintiff with osteoarthritis, in addition to her fibromyalgia. Dr. Morano changed Plaintiff's medication to Paxil, Sulindac, and Tylenol, and referred Plaintiff to physical therapy.

Dr. Morano's recount of a November 3, 2001 visit with Plaintiff indicated that, while Plaintiff's condition had improved, she remained out of work. Dr. Morano continued Plaintiff's medications.

The last two paragraphs of Dr. Morano's narrative appear to be a summary of his entire treatment history with Plaintiff. Dr. Morano states, in pertinent part:

[Plaintiff] has fibromyalgia and osteoarthritis. . . . It has come to my understanding that [Plaintiff] is seeking long term disability. This is not unreasonable with a diagnosis of fibromyalgia. Her disease causes high absenteeism and [many] patients lose their jobs because they cannot perform well on a regular basis. From my treating [Plaintiff], I found a sincere person who is trying to deal with her disease and maintain a livelihood. I support her endeavor in seeking disability and am available for any questions.

(R. 115-116.)

3. Doctor Durant's Assessment

In a December 2000 note, Dr. Durant stated that Plaintiff suffers from epicondylitis in her left knee. (R. at 138.) In a March 2001 note, Dr. Durant acknowledged Plaintiff's complaints of intermittent, episodic discomfort in her left knee. X-rays "revealed evidence of early arthritic changes," and Dr. Durant found "evidence of chondritis in [Plaintiff's left knee.]" (R. at 139.)

In February 2003, Dr. Durant completed an assessment of Plaintiff's ability to perform work-related activities. In the assessment, Dr. Durant stated that: (1) Plaintiff was capable of lifting three pounds for approximately two and one-half hours per eight-hour work day; (2) Plaintiff needed to recline for some period of time during the day due to lower back pain; (3) Plaintiff was capable of standing/walking for up to two hours per day, with a maximum period of standing/walking without interruption of one-half hour due to lower back and left knee pain; and (4) Plaintiff was capable of sitting for one hour without interruption due to lower back pain. Dr. Durant imposed no limitations on Plaintiff's ability to use a keyboard, but noted that Plaintiff's ability to reach for items or push or pull items was affected by her physical impediments. (R. at 124-26.)

4. Doctor Einhorn's Assessment

Dr. Einhorn was retained by Plaintiff's counsel, and performed a consultative exam of Plaintiff in November 2002. Dr. Einhorn memorialized Plaintiff's visit in a November 19, 2002 letter directed to Plaintiff's counsel.

At the outset, Dr. Einhorn's assessment contains a summary of Plaintiff's job responsibilities as a Production Specialist. Dr. Einhorn stated that Plaintiff worked at a computer for "about four hours a day," and spent the remainder of the work day delivering papers throughout the offices of The World Trade Center. According to Dr. Einhorn's letter, in the course of her job, Plaintiff "walked one or two miles per day." (R. at 117.)

Dr. Einhorn diagnosed Plaintiff with: (1) arthritis in both knees, with a femoral osteochondral defect in the left knee; (2) multilevel degenerative lumbar disc disease; and (3) medial epicondylitis of the right elbow. Einhorn stated "patient's combined disabilities have gotten worse within the past year, going back to August 2001. There is a progressive loss of function of her neck, back and both knees. . . . [Plaintiff] is a candidate for an anterior cervical spine fusion." (R. at 117.)

B. Prudential's Determination

Prudential contends that Plaintiff's evidence is insufficient to support a finding of total disability within the meaning of the plan because it does not specifically explain how Plaintiff is precluded from performing her job. Prudential points out that none of Plaintiff's treating physicians (Drs. Baghdassarian, Durant and Morano) addressed Plaintiff's maladies in the context of the specific tasks demanded by her position. According to Prudential, the only pertinent medical opinion with respect to Plaintiff's disability was provided by Dr. Einhorn, a specialist retained by Plaintiff's counsel — and that opinion was based on an erroneous job description offered by Plaintiff. Based on its review of Plaintiff's medical records, and information obtained from Plaintiff's employer, Prudential concluded that Plaintiff was capable of performing her old job, and denied benefits.

The Court notes that not all of the aforementioned medical reports were included in each of the benefits applications/appeals filed with Prudential. For example, Plaintiff's benefits application in January 2002 did not contain either Doctor Einhorn's November 2002 report, or Doctor Durant's 2003 assessment. All of the aforementioned materials, however, had been submitted to Prudential when it denied Plaintiff's final appeal of the benefits determination.

1. The Opinions Of Plaintiffs' Treating Physicians

The Court agrees with Prudential that declarations of Plaintiff's total disability, without more, are not sufficient evidence of Plaintiff's disability. See O'Sullivan v. The Prudential Ins. Co. of Amer., No. 00-CV-7915, 2002 WL 484847 at **9-10 (S.D.N.Y. Mar. 29, 2002) ("Prudential II"). This is because such averments do not address whether "[Plaintiff is] unable to perform . . . [the] substantial duties of her employment." For example, the assertion by Doctor Baghdassarian that Plaintiff is not capable of returning to work lacks probative value unless we are aware of either Dr. Baghdassarian's knowledge of Plaintiff's employment duties, or Dr. Baghdassarian's definition of the term "work." Similarly, Dr. Monaco's characterization of Plaintiff's LTD benefits request as "not unreasonable" does little to explain Plaintiff's ability or inability to meet the daily demands of her job.

Dr. Durant's February 2003 report concerning the contours of Plaintiff's work capabilities, however, cannot be similarly discounted. While Dr. Durant's report does not contain specific references to the demands of Plaintiff's job, the report details Plaintiff's pertinent exertional limitations. In order to determine whether, according to Dr. Durant, Plaintiff was capable of performing her job, Prudential had to simply match up the demands in the Production Specialist job description with Dr. Durant's report. A conclusion would be readily apparent. For example, if Plaintiff's job required her to be on her feet, walking for four hours per day, she would be unable to perform it. (See R. at 124-26) (stating that Plaintiff was capable of standing/walking for a total of one hour per eight hour work day). Accordingly, Dr. Durant's report should have been, and apparently was, given serious consideration by Prudential.

2. Plaintiff's Disabilities And The Demands Of Her Job

Notwithstanding Prudential's challenge to the probative value of certain of Plaintiff's medical evidence, Prudential maintains that it considered all of Plaintiff's medical reports and evidence, but reached a contrary conclusion with respect to LTD benefits. Prudential retained its own consulting physician, Dr. Gale Brown, Jr., who reviewed Plaintiff's medical records in connection with the Production Specialist job description, and determined that Plaintiff was still capable of performing her job.

As a preliminary matter, it is important to note the significant discrepancy between the Parties with respect to Plaintiff's job responsibilities. Prudential maintains that it received a job description from Aon, classifying Plaintiff's position as "sedentary." (R. at 20.) Sedentary work is defined by statute as:

Specifically, the description provided by Aon was that Plaintiff's job had "no physical requirements." While the statement obviously lacks precision, Prudential construed it to mean that Plaintiff's job was "sedentary" — a reasonable conclusion.

"lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although 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. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."
20 C.F.R. § 404.1567(a). The description is contradicted by Plaintiff's depiction of her job responsibilities to Dr. Einhorn.See infra II., A. 4. Plaintiff maintains that she spent at least four hours per day delivering packages throughout The World Trade Center.

At most, the question of Plaintiff's job responsibilities presents an issue of fact, requiring a judgment call as to the proper description. The Court finds nothing arbitrary or capricious about Prudential's reliance upon the job description provided by Aon.

Relying upon the sedentary description and the report of Dr. Brown, Prudential denied Plaintiff's LTD benefits claim. (Compare R. at 19-21 to R. at 28-33.) In denying Plaintiff's LTD benefits claim, Prudential noted that, "Despite a diagnosis of fibromyalgia since 1997, Ms. Wenzel was able to function at her position on a full time basis. . . . [and] [t]he medical information in file does not support any clinically significant changes [in her condition.]" (Id. at 20, 28-33.) Prudential addressed the significance of Plaintiff's degenerative lumbar spine disease, pointing out that there was "no medical documentation supporting radiculopathy." Finally, Prudential stated that "if [Plaintiff] had to return to a light, medium or heavy occupation requiring standing or walking," she would be restricted, but "since [Aon] confirmed that she has a sedentary job which does not require any standing or walking or lifting [,] [w]e have determined that [Plaintiff] is not disabled." (Id. at 20.)

Radiculopathy refers to pain associated with the dysfunction of a nerve root.

In light of the evidence proffered by Plaintiff, the Court cannot conclude Prudential's determination was arbitrary or capricious. Oddly enough, this action does not so much concern the nature of Plaintiff's injuries, as it concerns the accuracy of her job description. Neither Prudential, nor its consulting physician dispute that Plaintiff suffers from a serious condition, precluding all but sedentary work. Dr. Brown's report indicates a careful and thoughtful review of Plaintiff's medical history, including Dr. Durant's exertional limitations assessment. (Id. at 32.) Dr. Brown recognized that Plaintiff would be unable to perform her position as described to Dr. Einhorn. Indeed, when Dr. Brown issued her report, she did not make an "across the board" finding of no disability. (Id. at 32) ("If the standing/walking requirements [four hours per work day] are verified with the claimant's employer, it is more likely than not that [Plaintiff] would have difficulty performing the essential duties of her own occupation.") Rather, Dr. Brown's finding of no disability was contingent upon receipt of information from Aon concerning Plaintiff's work duties.

Prudential adopted Aon's job description, and found, based on the medical evidence provided, that Plaintiff failed to submit sufficient evidence that she was unable to perform the duties required by her position. Based on the Record, the Court finds nothing arbitrary or capricious about this determination.

CONCLUSION

For the aforementioned reasons, Plaintiff's motion for judgment on the pleadings is DENIED. Defendant's motion for judgment on the pleadings is GRANTED. The Clerk of the Court is directed to mark this matter as CLOSED.

SO ORDERED.


Summaries of

Wenzel v. Prudential Insurance Company

United States District Court, E.D. New York
Mar 25, 2005
03-CV-5751 (JS) (E.D.N.Y. Mar. 25, 2005)
Case details for

Wenzel v. Prudential Insurance Company

Case Details

Full title:GAIL WENZEL, Plaintiff, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA and the…

Court:United States District Court, E.D. New York

Date published: Mar 25, 2005

Citations

03-CV-5751 (JS) (E.D.N.Y. Mar. 25, 2005)

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