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February 18, 2004.

UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, d/b/a UNITED STATES LIFE, a subsidiary of American General Corporation, Defendant

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


On April 28, 2003, this court granted plaintiff, Andrew Ruttenberg ("Ruttenberg"), leave to file a second amended complaint against defendant, United States Life Insurance Company in the City of New York d/b/a United States Life ("United States Life"), alleging causes of action under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001 et seq. On May 1, 2003, Ruttenberg filed his second amended complaint under 29 U.S.C. § 1132(a)(1)(B) seeking to recover benefits due and a determination of future benefits. This court's jurisdiction is invoked under 29 U.S.C. § 1132(e)(1) & (f). Before the court are the parties' cross motions for summary judgment. For the reasons stated below, Ruttenberg's motion is denied while United States Life's motion is granted,
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. Page 2 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross-motions for summary judgment, the court must consider the merits of each motion and assess the burden of proof that each party would bear on an issue at trial, Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).


  Ruttenberg seeks to recover disability benefits under an insurance policy issued by United States Life to "eligible employees" of SMW Trading Company ("SMW"). (Pl. L.R. 56.1 ¶ 1.) Ruttenberg previously served as a "market maker," in which his duties involved trading financial Page 3 instruments on the floor of the Chicago Board of Trade as well as the Chicago Mercantile Exchange. (Pl. L.R. 56.1 ¶ 9.) In general, such floor trading requires "extensive verbal requirements" including "screaming and yelling to gain the attention of other Traders and Brokers" and "frequent exposure to pushing and shoving." (Pl. L.R. 56.1 ¶ 10.)

  On March 29, 2001, Ruttenberg applied for disability insurance benefits from United States Life alleging disability from his occupation of "executing open outcry buy and sell orders on the commodity trading floor" due to "shortness of breath and difficulty breathing." (Pl. L.R. 56.1 ¶ 12.) United States Life had replaced Paul Revere Life Insurance Company on February 1, 2001 as the underwriter of the group disability coverage to classes of persons affiliated with SMW. (Pl. L.R. 56.1 ¶ 6.) The policy identified those included in the plans as
All full-time employees of the Participating Employer who are:
• Managers and officers earning over $20,000 annually
• Traders who report earnings on their 1099 form
• Firm traders who report prior years on their 1099 DDE form But not those who are temporary, part-time or seasonal.
(Def. L.R. 56.1 ¶ 12.)*fn2 As part of its provisions, the policy provided for long-term disability benefits for eligible participants who became disabled. (Def. L.R. 56.1 ¶ 14.) Disability was defined under the policy as
TOTAL DISABILITY means during the waiting period and thereafter your complete inability to perform the material duties of your regular job. "Your regular job" is that which you were performing on the day before total disability began.
  The total disability must be a result of injury or sickness. To be considered totally disabled, you must also be under the regular care of a physician. Page 4
PARTIAL DISABILITY means that you are not able to perform the material duties of your regular job, but you are able to perform:
• At least one of these duties on a part-time basis, or
• At least one, but not all, of these duties on a full-time basis.
"Your regular job" is that which you were performing on the day before disability began.
The partial disability must be a result of injury or sickness Disability means total and/or partial disability.
BASIC MONTHLY PAY means your monthly rate of pay from the Participating Employer. Such rate will be that in effect on the day before disability begins. "Basic monthly pay" includes commissions, but not bonuses, overtime pay or other extra compensation. Commissions will be averaged for the lessor of:
• The 24 months period of employment before the date disability begins, or
• The period of employment.
The total disability benefit will begin to accrue on the day after the waiting period ends.
The total disability benefit will be paid monthly in the amount shown in the Schedule of Benefits, reduced by other income benefits as described on page LTDB-3.
Limited benefits will be paid for disability due to:
• alcoholism, drug addition [sic] and mental, nervous or emotional disorder, and
• pre-existing conditions
These benefits are described on page LTDB-2.
(Def. L.R. 56.1 ¶ 15.)

  Along with his claim for benefits, Ruttenberg also submitted a statement from his attending physician, Dr. Barry Goldberg ("Dr. Goldberg"), a specialist in internal medicine, who Page 5 certified Ruttenberg as disabled due to "asthma, exacerbated." (Def. L.R. 56.1 ¶ 68.) Dr. Goldberg's last date of examining Ruttenberg was March 10, 2001, and Dr. Goldberg noted "decreased peak flow readings." (Pl. L.R. 56.1 ¶ 13.) Dr. Goldberg indicated that Ruttenberg's impairment was "Class 5-Severe limitation of functional capacity," for which Dr. Goldberg noted that Ruttenberg "cannot work @ old job." (Pl. L.R. 56.1 ¶ 13.) Dr. Goldberg's prognosis was that Ruttenberg was "totally disabled for [his] job" and that he was not "a suitable candidate for further rehabilitation services." (Def. L.R. 56.1 ¶ 68.) During this time Ruttenberg also visited with Dr. Mark Fisher ("Dr. Fisher"), a cardiopulmonary doctor. (Def. L.R. ¶¶ 70, 80.) Dr. Fisher remarked that Ruttenberg complained that he was on disability for asthma and had increased shortness of breath. (Def. L.R. 56.1 ¶ 70.) Fisher's "review of systems" section showed that Ruttenberg had no problem with his nose or sinuses, had no sore throat, but did have wheezing at night, heartburn or indigestion and headaches. (Id.) Dr. Fisher performed a spirometry test, and noted that "[p]atient doing well when out of work-spirometry almost normal. . . ." (Id.)

  Previously, in November 2000, Ruttenberg had been examined by a doctor identified only as Dr. Taitz. (Def. L.R. 56.1 ¶ 59.) Dr. Taitz performed a flexible fiberoptic nasopharyngoscopy and a laryngoscopy procedure on Ruttenberg. (Def. L.R. 56.1 ¶ 60.) Dr. Taitz stated that Ruttenberg's false vocal folds and true vocal folds were normal, his true vocal fold mobility was normal, and his "true vocal folds and supraglottis were normal with no evidence of masses or lesions." (Def. L.R. 56.1 ¶¶ 60-63.)

  Ruttenberg's disability claim was processed by Disability Reinsurance Management Services, Inc. ("RMS"). (Def. L.R. 56.1 ¶ 71.) As part of its investigation of Ruttenberg's claim, RMS's in-house consultant, Dr. Sharon Hogan ("Dr. Hogan"), reviewed the opinions of both Dr. Page 6 Goldberg and Dr. Fisher. (Def. L.R. 56.1 ¶¶ 94, 101.) On July 9, 2001, Dr. Hogan filed a "note to file" where she indicated her opinion that the "medical information in the file provides no data to document that the insured has severe asthma." (Def. L.R. 56.1 ¶ 105, R. 0227.) Dr. Hogan stated that Ruttenberg's forced expiration volume in one second ("FEV1") was normal, his peak flows were normal, he had not required steroids for at least the past year and had no emergency treatment. (Id.) Dr. Hogan characterized Dr. Goldberg's conclusions as based on subjective complaints, which she considered unreliable. (Def. L.R. 56.1 ¶ 107.) Further, she stated that Dr. Fisher declined to state that Ruttenberg could not work in the "pit" because of his asthma, (Id.) Her ultimate conclusion was that Ruttenberg's asthma was mild and that it "should not preclude working in a stressful environment, and should not preclude the ability to yell." (Id.)

  On August 6, 2001, RMS, through its claim examiner, requested that an appointment be set up with an independent pulmonary specialist. (Def. L.R. 56.1 ¶ 108.) The pulmonary specialist ultimately chosen was Dr. Edward J. Diamond ("Dr. Diamond"). (Def. L.R. 56.1 ¶ 111.) Dr. Diamond examined Ruttenberg on September 6, 2001 and reported to United States Life, by way of a letter, that Ruttenberg suffered from both asthma and vocal cord dysfunction syndrome. (Pl. L.R. 56.1 ¶ 15.) The vocal cord dysfunction syndrome was described by Dr. Diamond as "a severe irritation of the vocal cords which may have resulted from his years of screaming as a function of his employment." (Id.) Dr. Diamond further reported that "the patient still has a very hoarse voice even though it has been seven months since he has worked. This suggests that the damage may be permanent." (Def. Resp, to Pl. L.R. 56.1 ¶ 15.) In support of his findings, Dr. Diamond enclosed a pulmonary function report that stated Page 7

The results of the study indicate in airway resistance with normal airflow. The diffusion capacity is within normal limits.
Following the administration of a bronchodilator, there was a significant worsening in the FEV1. The low [maximum voluntary ventilation ("MVV")] and irregular and flattened pattern of the inspiratory limb of the flow volume loop suggests that this patient has a upper airway abnormality most likely being vocal cord dysfunction syndrome.
(Pl. L.R. 56.1 ¶ 16.) A Plethsmograph Report also taken on September 6 states "UNABLE TO ACHIEVE REPRODUCIBLE RESULTS ON FEV AFTER MULTIPLE ATTEMPTS." (Def. L.R, 56.1 ¶ 117.)
  Dr. Diamond also prepared an addendum to his initial report in which he explained the significance of his findings as they related to Ruttenberg's job:
In reviewing the previous letter, I note that I did not clarify the point that I believe that the patient is permanently disabled in the sense that he can not work in his current occupation due to the continued irritation to the vocal cords which accrues from the activities of that occupation.
(Pl. L.R. 56.1 ¶ 17.)

  RMS received the report from Dr. Diamond and also received the actual results of the tests performed and documentation Dr. Diamond had regarding Ruttenberg's examination. (Def. L.R. 56.1 ¶ 119.) This information was reviewed by Dr. Hogan, RMS's in-house medical consultant. (Def. L.R. 56.1 ¶ 135.) In a note to file, Dr. Hogan stated that she reviewed Dr. Diamond's opinions and concluded that Ruttenberg "could have vocal cord dysfunction but that a definitive diagnosis has not been made" and that "definitive diagnosis requires visualization ...

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