The opinion of the court was delivered by: William D. Stiehl District Judge
Before the Court is defendant Prudential Insurance Co. Of America's (Prudential) motion for summary judgment (Doc. 27) to which plaintiff has filed a response (Doc. 34) and a cross motion for summary judgment (Doc. 31). Defendant Prudential has filed a response in opposition to the cross motion for summary judgment (Doc. 35).
Plaintiff filed this action seeking long-term disability benefits under an employee welfare benefit plan (the Plan) which is sponsored and maintained by plaintiff's employer, defendant Coordinated Youth and Human Services (CYHS). The long-term disability benefits (disability benefits, or benefits) are underwritten by defendant Prudential, in accordance with Group Policy G-8186 (the Policy). The record reveals that Plaintiff was hired by CYHS as a registered nurse in January of 2002. That position was classified as "light duty" which included carrying up to 10 pounds frequently, 20 lbs occasionally and/or frequent walking, standing or constant pushing and pulling. (R. at 715-16). Plaintiff last worked at CYHS on July 30, 2004. In August of 2004, she submitted an application for disability benefits, stating that rheumatoid arthritis and fibromyalgia prevented her from working, caused her pain and weakness and interfered with her ability to perform her job as a registered nurse. She was evaluated by a Dr. Andrew Baldassare, her attending physician, who stated that she was limited due to fibromyalgia which began in March of 2003, and that her prognosis to return to work was poor due to joint pain. (R. 712-13). Prudential undertook a review of her medical records and denied her application for disability benefits on the basis that there was not medical support in her record for this diagnosis.
Pursuant to a request by plaintiff, Prudential undertook a review of the denial in February of 2005. Prudential consulted with Sharon Hogan, M.D., and in March of 2005 advised plaintiff that she was entitled to receive benefits effective November 2004, under the "regular occupation" definition of Total Disability in the Policy.
In January of 2006, Prudential undertook a follow-up investigation, and asked plaintiff to complete a questionnaire, Activities of Daily Life. In that questionnaire, plaintiff listed her medical conditions as rheumatoid arthritis; fibromyalgia; asthma/SOB; reflux/hiatal hernia; recurrent sinus infections; hypertension; depression; allergies; poor sleep with medication; and cataracts. (R. 288). She provided a list of her medications and stated that she used a cane and a rolling chair to walk (R. 290-92). She stated she drove 20 miles a week, and would not be able to use airplane transportation (R. 293). In February of 2006, Prudential recommended a full review of her medical records and a home visit to determine the level of her disability.
Prudential had Donald W. Abbott, M.D. review her files, and he determined that plaintiff did not have objective evidence of fibromyalgia. He stated that for fibromyalgia the current recommendation for treatment was to "stay active" which she had not done. (R. 285). Dr. Abbott stated that none of plaintiff's diagnoses seemed to be impairing, but that her depression might be involved.*fn1 Plaintiff was notified that her initial temporary benefits would end on October 31, 2006, and that after that time Prudential would be conducting a thorough evaluation of her eligibility to receive benefits. (R. 868-69).
Prudential conducted a personal interview with plaintiff, by Crisney Powell of MJM Investigations. In addition, MJM Investigations conducted surveillance of plaintiff. The surveillance showed her, inter alia, walking, standing, using a cane, shopping, using a shopping cart, entering and exiting a car on May 12, 2006, and May 13, 2006.
On July 11, 2006, Dr. Abbott reviewed the surveillance and determined that plaintiff was mobile, and that the cane was more of a prop than a walking assistance device. On July 25, 2006, plaintiff was advised by Prudential that she no longer qualified as disabled under the policy and therefore her long-term disability benefits would terminate as of July 1, 2006. The benefits were, thereafter, extended to July 31, 2006. As part of the denial, Prudential stated that Dr. Baldassare's rheumatologic tests had been negative, and did not support a diagnosis of figromyalgia, and that although there was a recommendation that plaintiff participate in an exercise program to combat fibromyalgia, there was no evidence that she did so. Plaintiff was referred to Drs. Kopjas and McGarry who both found her neurological examination to be normal (R. 866).
Plaintiff appealed the termination of her long-term disability benefits and included a letter from Dr. Baldassare who stated that she could not work, could not sit or stand for any length of time, and could not bend, stand, stoop or lift. Dr. Baldassare stated in a follow-up letter in January of 2007 that although plaintiff's tests were negative, there was, in his opinion, "no question" that her disease met the American College of Rheumatology's criteria for rheumatoid arthritis (R. 146). Included in the plaintiff's submissions to Prudential were this letter, transcribed records, and additional notes of Dr. Baldassare that plaintiff had "18 of 18" trigger points for fibromyalgia.
Prudential undertook a second medical review in April of 2007, by Paul Howard, M.D., who has a specialty in rheumatology. Dr. Howard concluded that plaintiff did not, from a rheumatological perspective, have any degree of impairment applicable to a diagnosis of rheumatoid arthritis or fibromyalgia syndrome. (R. 137). Although plaintiff had, apparently, 18 trigger points, there was no corresponding functional impairment. (Id.) He also found her medical records to be devoid of objective evidence of inflammatory arthritis and no functional impairment with fibromyalgia. He found her not to be impaired as of August, 2006 forward, and that her pain complaints were not consistent with any diagnostic testing or physical examination findings.
1. Cross Motions for Summary Judgment
Prudential seeks summary judgment on the grounds that plaintiff is not entitled to benefits under the terms and conditions of the policy, or in the alternative, Prudential seeks judgment pursuant to Fed. R. Civ. P. 52. Plaintiff seeks summary judgment on the grounds that the decision to deny her ...