Davey v . Life Ins. Co. of N.A. CV-05-126-PB 06/14/06
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Donna Davey
v. Case N o . 05-cv-126-PB Opinion N o . 2006 DNH 068 Life Insurance Co. of North America
MEMORANDUM AND ORDER
Donna Davey brings this claim for disability benefits
pursuant to the Employee Retirement Income Security Act of 1974
(“ERISA”), as amended, 29 U.S.C. § 1132(a)(1)(B), to recover
benefits allegedly owed to her under the terms of her former
employer’s long-term disability plan (the “LTD Plan”). The LTD
Plan is insured by defendant Life Insurance Company of North
America (“LINA”). Davey alleges that LINA’s decision to
terminate her long-term disability benefits was unreasonable and
not supported by medical evidence. Before me are the parties’
motions for judgment on the Administrative Record. Because I
find that LINA’s decision to deny Davey long-term disability
benefits was reasonable, I grant LINA’s motion and deny Davey’s
motion. I. BACKGROUND1
Donna Davey worked for CIGNA HealthCare of New Hampshire
(“CIGNA”) as a Quality Management Coordinator until June 4 , 2001.
Admin. R. at 8 7 . As a regular employee, she was eligible to
participate in CIGNA’s short-term disability (“STD”) and long-
term disability (“LTD”) plans. Id. at 5 . At various times,
Davey suffered from fibromyalgia, osteoarthritis, irritable bowel
syndrome, depression, anxiety, post-traumatic stress disorder
(“PTSD”) and other ailments. Pl.’s Mot. for J. on the Admin. R.
(“Pl.’s Mot.”) at 2-3.
A. The LTD Plan
CIGNA sponsors a group insurance policy that provides LTD
benefits to eligible employees who are determined to be
“[d]isabled.” Admin. R. at 780. The LTD Plan is administered by
CIGNA Group Insurance (“CGI”) and insured by LINA, a CIGNA
company.2 Id. at 2 1 , 777. Eligibility for LTD benefits is
divided into two phases. During the first phase of up to 18
1 The background facts are set forth in the parties’ Joint Statement of Material Facts (Doc. N o . 1 4 ) . The parties did not file a statement of disputed facts. See LR 9.4(b). 2 LINA does not insure CIGNA’s short-term disability plan. Admin. R. at 2 1 .
-2- months, an employee is considered disabled i f , “solely because of
Injury or Sickness, he or she is unable to perform all the
material duties of his or her Regular Occupation or a Qualified
Alternative.” Id. at 780. In the second phase, after collecting
benefit payments for 18 continuous months, an employee is
considered disabled only if he or she is “unable to perform all
the material duties of any occupation for which he or she i s , or
may reasonably become, qualified based on education, training or
experience.”3 Id.
The LTD Plan expressly designates LINA as the “Plan
fiduciary under federal law for the review of claims for
benefits.” Id. at 794. In that role, LINA has “the authority,
in its discretion, to interpret the terms of the Plan documents,
to decide questions of eligibility for coverage or benefits under
the Plan, and to make any related findings of fact.” Id.
The LTD Plan specifies that long-term disability benefits
will cease if LINA determines that the employee is no longer
disabled. Id. at 792. In addition, if the disability is “caused
3 The two phases of disability under the LTD Plan are frequently referred to as the “own occupation” period (first 18 months) and the “any occupation” period (after 18 months).
-3- by, or contributed to by,” mental illness or certain other
enumerated conditions, there is a lifetime maximum of 24 monthly
disability payments. Id. at 790.
B. Davey’s employment history
In 1994, Davey began working as an administrative assistant
for HealthSource New Hampshire, Inc., the predecessor to CIGNA
HealthCare of New Hampshire.4 Admin. R. at 9 0 , 218. In 1997,
Davey took the position of Quality Management Coordinator. Id.
at 218. Her job functions included providing administrative and
professional support to the Quality Management Program and
various committees, maintaining databases, collaborating on
National Committee for Quality Assurance (“NCQA”) compliance
auditing, pulling data for various reports, and maintaining NCQA
compliance documentation. Id. at 431. This position required
her to spend approximately 4% of her time standing, 8% walking,
43% sitting, 2% lifting and 43% keying. Id. at 9 2 .
4 Before working for HealthSource, Davey was employed as a counselor (1990-93), travel coordinator (1989-90), tax examiner (1989) and marketing coordinator (1983-86). Admin. R. at 218.
-4- C. Davey’s medical history5
Davey was first diagnosed with fibromyalgia6 by her primary
care physician, D r . Maria Davila, around September 1995. Admin.
R. at 327. A rheumatologist confirmed the diagnosis in March
1996. Id. at 407. Davey’s fibromyalgia was treated with
medication and exercise. Id. at 326-27, 407. In July 1996,
Davey told her primary care physician that she was suffering from
fatigue and was seeing a counselor for depression. Id. at 326.
Davey first saw D r . Hoke Shirley, a rheumatologist, in March
1998. Id. at 374. D r . Shirley thought Davey met the criteria
for fibromyalgia and recommended medication and exercise. Id. at
375. Davey continued to see D r . Shirley regularly in 1998. At
various times, Davey reported that she was doing poorly, had
stopped exercising, and was not taking recommended medications
because of their side effects. Id. at 371-73. She continued to
work full-time. Id. at 372.
5 The details of some of Davey’s appointments have been omitted because they do not impact the analysis of her claims. 6 Fibromyalgia is “[a] syndrome of chronic pain of musculoskeletal origin but uncertain cause.” Stedman’s Medical Dictionary 671 (27th ed. 2000). Diagnostic criteria include “pain on both sides of the body, both above and below the waist” and “point tenderness in at least 11 of 18 specified sites.” Id.
-5- In February 1999, D r . Shirley noted that Davey continued to
do poorly, though she was still working full-time. Id. at 368.
He thought she was doing worse “because of the current stressors
in her job place and her depression surrounding it.” Id. He
recommended that she see a psychiatrist to address her problems
with depression. Id. Around the same time, Davey told her
primary care physician that she was having problems with her
memory. Id. at 321.
In March 1999, D r . Shirley noted that Davey was having
difficulty maintaining full-time work. Id. at 366. He
recommended “a temporary leave of absence” from work so she could
“get things under control” and incorporate an exercise program
into her schedule. Id. By letter dated March 9, 1999, D r .
Shirley informed Davey’s employer that she needed a “one month
medical leave of absence . . . so that she can more completely
attend to her musculoskeletal condition from a physical
therapeutic and medical aspect.” Id. at 367.
Davey first saw D r . Megan Carman, a psychiatrist, on March
2 5 , 1999 for depression. Id. at 312. D r . Carman noted that
Davey was sleeping poorly, her energy was low and her
concentration was poor. Id. D r . Carman found her mood to be
-6- “extremely anxious and dysphoric.” Id. at 313. She recommended
changes to Davey’s medications and noted that Davey did “not
appear capable of working due to her depression if not her
fibromyalgia.” Id. at 314.
Davey saw D r . Shirley again on April 6, 1999. Id. at 365.
She reported that changes in her medication had caused her to
develop severe constipation, which had worsened her back and hip
pain. Id. D r . Shirley concluded that “[g]iven the degree of
pain and fatigue and depression she has and the associated
symptoms . . . [he] would extend her temporary disability for
another two months.” Id.
On May 2 1 , 1999, Davey saw D r . Carman and reported that “she
[did] not feel that she could perform her work duties in any
manner whatsoever, as she is not even able to get things done
around the house.” Id. at 310. She also felt that “the
depression [was] more disabling than the fibromyalgia.” Id. Dr.
Carman found Davey to be “quite depressed” and continued her
“medical leave from work for another four weeks.” Id. On June
4 , 1999, Davey reported some improvement in her “energy level and
motivation” and felt that her fibromyalgia was “under fairly good
control.” Id. at 309. D r . Carman thought Davey’s medications
-7- may have been “causing some of her daytime sluggishness” and
changed some of the dosages. Id. She also recommended continued
individual therapy with Mark Ciocca, Ph.D. Id. D r . Carman
thought Davey did not “appear even ready to return to work part-
time quite yet.” Id.
On June 1 5 , 1999, Davey told D r . Carman that she was feeling
much better and felt that she could return to work part-time.
Id. at 308. Davey returned to work on July 5 , 1999. Id. at 9 1 .
Later that month, D r . Shirley reported that Davey was “back at
work full-time” and “appear[ed] to be doing pretty well.” Id. at
363. He attributed this to her medications and exercise. Id.
He felt that although she could not perform her duties as well as
she used t o , she “could continue her job on a regular basis right
now.” Id.
When Davey saw D r . Shirley again in January 2000, he noted
that Davey was “doing better” but had a “lack of mental acuity
and some sleep problems.” Id. at 361. She had also “fallen off
[her] exercise program.” Id.
On January 2 8 , 2000, Davey was involved in a motor vehicle
accident and subsequently reported to her primary care physician
that she was having headaches. Id. at 318. In June 2000, Davey
-8- requested a referral to a neurologist because of ongoing
headaches. Id.
In July 2000, Davey saw Drs. Shirley and Carman. Id. at
360, 304. She reported that she did not feel “quite as attentive
as she used to be,” id. at 3 0 4 , and “mentally [could] not keep up
with all the things she ha[d] to do at work,” id. at 360. D r .
Carman thought Davey was having “some re-emergence of her
depressive symptoms, though certainly not as bad as when she
initially sought treatment.” Id. at 304.
Davey saw D r . Daniel Botsford, a neurologist, on September
2 5 , 2000. Id. at 381. She said her “problem with
distractibility and cognition” began seven years prior when she
“experienced a searing pain in her head and back followed by a
right body paresthesia that persisted over several hours.” Id.
An MRI taken at that time was deemed normal. Id. D r . Botsford
recommended further testing and started her on Exelon
(rivastigmine). Id. at 382. The results of a subsequent
electroencephalography (“EEG”) were “somewhat problematic to
interpret,” though the “dominant portion of the record [was]
normal.” Id. at 378.
-9- On September 2 9 , 2000, Davey told D r . Shirley that she had a
“lack of acuity of thought” and memory problems, though she was
still working full-time. Id. at 359. He noted that working was
“taking a toll on her” and that she was too fatigued from work to
comply with her exercise program.7 Id.
On November 2 , 2000, Davey told D r . Carman that her stress
at work was “extremely high” and her impaired concentration and
memory were “interfer[ing] with her work performance.” Id. at
302. D r . Carman discontinued Davey’s Exelon prescription because
it was causing her “significant constipation” and recommended
that she begin taking Ritalin. Id.
On January 4 , 2001, Davey told D r . Carman that she was not
doing well and had not filled the Ritalin prescription. Id. at
301. Davey reported that “her fibromyalgia [had] been quite
painful recently,” she felt tired all of the time and was having
difficulty getting her work done. Id. She also reported that
she had gotten a poor review at work. Id. D r . Carman noted that
Davey was “not doing very well but she [was] also not following
through on recommendations.” Id. D r . Carman substituted
7 Davey did not see D r . Shirley (or any other doctor) again for her fibromyalgia until June 2 1 , 2001. Admin. R. at 338.
-10- Provigil (modafinil) for Ritalin to help with Davey’s “attention
span and alertness.” Id. She also suggested that Davey return
to therapy and consider taking another medical leave from work if
she did not improve. Id.
On February 1 , 2001, Davey told D r . Carman that she had
tried taking Provigil but it had caused “significant nausea and
headaches.” Id. at 300. Davey reported having difficulty
getting her work done and was concerned about losing her job.
Id. In March 2001, Davey began seeing Susan L . Randlett, MSW for
therapy and Eye Movement Desensitization and Reprocessing
(“EMDR”) treatment “to resolve past trauma issues related to her
childhood and previous marriage.” Id. at 242. Davey saw
Randlett through August 2001. Id. at 246-67.
On April 1 2 , 2001, Davey told D r . Carman that although work
was still stressful, she had recently gotten “a much better
review” and was applying for a raise. Id. at 299. She also
reported that she was having a lot of pain from osteoarthritis
and fibromyalgia and that she felt depressed if she missed a dose
of her medication. Id. D r . Carman thought Davey was “more
overwhelmed by her physical problems than her emotional state”
-11- and encouraged her to see D r . Shirley regarding her pain level.
Id.
D. Short-term disability benefits claim
Davey’s last day of work at CIGNA was June 4 , 2001. Admin.
R. 8 3 , 8 7 . On June 8 , she saw D r . Davila for problems with
constipation. Id. at 316. D r . Davila referred Davey to a
gastroenterologist, who she saw on July 1 7 , 2001. Id. at 289.
On June 1 2 , 2001, Davey saw D r . Carman and reported that she
was “having a lot of problems with nausea and abdominal cramping
and constipation” and felt “lousy both physically and mentally.”
Id. at 298. D r . Carman thought Davey needed “a medical leave of
absence [from] work” and recommended that she stay out of work
until July 1 , 2001. Id.
Davey submitted her claim for STD benefits on or around June
1 5 , 2001. Id. at 8 6 . She reported that she was unable to work
because of gastrointestinal (“GI”) problems and depression. Id.
at 8 4 , 8 9 . Because her claim was based in part on depression, it
was referred to CIGNA Behavioral Health (“CBH”), the claims
administrator for behavioral health STD claims. Id. at 2 4 , 4 3 ,
93.
-12- Dr. Carman submitted a Provider Functional Capabilities
Statement (“PFCS”) in June 2001 in support of Davey’s claim for
STD benefits. Id. at 100. She recommended that Davey remain out
of work until July 1 , 2001, and not return full-time until July
1 5 , 2001.
On June 2 9 , 2001, CBH approved Davey’s STD benefits from
June 5 until July 8 , 2001. Id. at 4 6 . Shortly thereafter, her
benefits were extended to July 3 1 , 2001. Id. at 4 9 .
In July 2001, D r . Carman recommended that Davey begin a
partial hospitalization program to address her increased
depression. Id. at 5 0 , 2 5 2 , 269. On July 2 4 , 2001, Randlett,
Davey’s therapist, wrote to D r . Carman concerning Davey’s failure
to attend her therapy and partial hospitalization appointments
the previous day. Id. at 268. Randlett noted that she had been
completing Davey’s disability reports and wondered if she was
“enabling [Davey] to some degree.” Id.
Davey saw D r . Carman again on July 2 6 , 2001, and reported
feeling anxious about an upcoming court appearance. Id. at 296.
Dr. Carman noted that Davey was “sabotaging her treatment in
various ways” and was not ready to return to work. Id. Dr.
Carman recommended extending Davey’s medical leave until
-13- September 1 , 2001. Id. In a PFCS completed July 2 7 , 2001, D r .
Carman noted that Davey’s PTSD had been aggravated. Id. at 114.
CBH extended Davey’s STD benefits to September 3 , 2001. Id. at
51.
On or about August 2 2 , 2001, Davey was told that her
employer would not allow her to return to work on a part-time
basis and would start the process of replacing her if she did not
return full-time on September 4 . Id. at 5 6 . On August 2 8 , Davey
told D r . Carman that she was doing poorly and continued to have
“significant GI pain.” Id. at 294. D r . Carman noted that Davey
was “not ready to return to work” and thought they should “take
more aggressive measures with her medication.” Id.
On September 4 , 2001, Davey’s STD benefits were extended for
an additional two weeks and a doctor-to-doctor disability review
was scheduled with D r . Carman. Id. at 5 9 . On September 6, Davey
told CBH that her symptoms had not improved and her doctor wanted
her to remain out of work until mid-October. Id. at 6 0 .
On September 1 4 , 2001, D r . John Luehr, a CBH medical
consultant, discussed Davey’s case with D r . Carman. Id. at 6 1 .
Dr. Carman reported that she thought Davey’s primary disability
was psychiatric and her “current somatic complaints are more
-14- stomach/GI than fibromyalgia.” Id. D r . Luehr concluded that
Davey met the criteria for ongoing STD benefits and could not
return to work for another four to six weeks. Id. Davey’s STD
benefits were extended to October 1 4 , 2001. Id.
Davey saw D r . Carman again on September 28 and October 1 2 ,
2001. Id. at 2 9 2 , 293. D r . Carman noted that Davey was still
depressed and did not feel capable of returning to work on a
full-time basis. Id. at 293. In her October 1 2 , 2001 PFCS, D r .
Carman estimated that Davey would be able to return to work on
November 1 5 , 2001.
CBH extended Davey’s STD benefits on October 2 5 , 2001, after
her case was discussed at a panel review with D r . William Hague.
Id. at 6 5 . CBH then scheduled a doctor-to-doctor review with D r .
Ciocca, who was seeing Davey for individual therapy, after D r .
Carman failed to respond to CBH’s requests for a review. Id.
On October 3 0 , 2001, D r . Murphy informed Davey’s primary
care physician that “the majority of [Davey’s] GI symptoms ha[d]
abated” after changes were made to her anti-inflammatory
medications. Id. at 376.
On November 1 , 2001, CBH consultant Kathleen Papatola,
Ph.D., discussed Davey’s case with D r . Ciocca. Id. at 6 6 .
-15- According to D r . Papatola, D r . Ciocca thought that Davey’s level
of impairment was due more to medical issues than mental illness.
Id. He also allegedly reported that she was not “100%
psychiatrically disabled” and could go back to work part-time.
Id. D r . Ciocca later disputed D r . Papatola’s characterization of
his statements. Id. at 207-08.
Following a November 1 , 2001 panel review, CBH determined
that Davey no longer met the criteria for behavioral health
disability benefits because her inability to work full-time was
due to medical issues and not mental health issues. Id. at 6 6 .
By letter dated November 1 , 2001, CBH informed Davey that she was
no longer “totally disabled from performing [her] job due to a
psychiatric disability.” Id. at 162. Davey was also told that
she could appeal this determination and she could file a
“medical” STD claim with CIGNA Disability Management Solutions
(“DMS”). Id. at 6 7 .
Davey appealed the termination of her STD benefits on
November 2 0 , 2001. Id. at 173. Davey stated that she had been
experiencing “a recurrence of a Major Depressive Disorder since
May of 2001” and she believed her symptoms rendered her disabled.
Id. CBH upheld its denial following another panel review with
-16- Dr. Hague and other CBH staff. Id. at 7 0 . In a letter dated
December 4 , 2001, CBH informed Davey of its denial of her appeal
and her right to pursue a second-level appeal. Id. at 174.
Davey filed a second appeal of the termination of her STD
benefits on December 2 0 , 2001. Id. at 175. Davey stated that
she had “suffered from Fibromyalgia for several years” and was
experiencing “both increased and additional symptoms,” including
“clinical depression.” Id. She contended that she was eligible
for both STD and LTD benefits due to her medical and psychiatric
symptoms, whether considered separately or combined. Id.
On or about January 1 0 , 2002, D r . Ciocca submitted an
affidavit to CBH in which he disputed D r . Papatola’s account of
their November 1 , 2001 doctor-to-doctor review. Id. at 207-08.
Dr. Ciocca stated that Davey was “significantly impaired” on
November 1 , 2001, “owing to symptoms of Major Depression,
Posttraumatic Stress Disorder, and Fibromyalgia.” Id. at 207.
He also stated that he “did not clear [Davey] for return to
work.” Id. at 208. Based on D r . Ciocca’s affidavit and his
subsequent conversation with D r . Hague on January 2 2 , CBH
overturned its denial of Davey’s STD benefits. Id. at 78-79.
Accordingly, Davey was paid STD benefits for the period between
-17- November 1 , 2001 and December 5 , 2001 (the start date for LTD
benefits). Id. at 7 9 .
E . Long-term disability benefits claim
On October 2 9 , 2001, Lynette Gibson sent Davey a letter
advising her that CIGNA Group Insurance (“CGI”) had begun its
evaluation of her LTD claim.8 Admin. R. at 157. Davey was asked
to provide certain information in support of her claim by
November 9, 2001. Id.
On November 6, 2001, CGI sent Davey a letter informing her
that because her STD benefits were terminated effective November
1 , she had not satisfied the waiting period for LTD benefits.
Id. at 172-72A. On January 3 , 2002, Davey’s attorney appealed
the denial of Davey’s claim for LTD benefits, “pending an appeal
of [Davey’s] STD denial.” Id. at 191. After CGH overturned the
denial of her STD benefits on January 2 2 , 2002, Davey returned
CGI’s disability questionnaire and submitted medical records9 to
support her LTD benefits claim. Id. at 214.
8 As noted above, CGI administered the LTD Plan, which was insured by LINA. 9 The records included office notes of Drs. Shirley, Carman, Ciocca, Davila, Botsford and Murphy. Admin. R. at 225-408.
-18- By letter dated February 2 5 , 2002, CGI informed Davey that
her LTD claim was being reviewed. Id. at 418. On March 7 , 2002,
Edward Zevola, R N , who was reviewing Davey’s LTD claim, discussed
her case with D r . Ciocca. Id. at 443. D r . Ciocca indicated that
Davey was not doing well and could only perform “two hours of
sustained activity before needing a significant rest period.”
Id. D r . Ciocca estimated that Davey would not be able to return
to work for at least three months “due to ongoing treatment and
medication adjustments.” Id.
In March 2002, D r . Shirley completed a “current work status”
form in which he indicated that Davey could “barely” perform
part-time work. Id. at 450-51. He also indicated that she could
sit for three hours per day, but only for one hour at a time.
Id. at 451. D r . Carman also completed an Assessment of
Psychiatric Function form on which she indicated that Davey would
not be able to work full-time “in [the] next 2 years if ever” due
to “[t]reatment resistant depression complicated by chronic
physical problems.” Id. at 467-68.
On March 1 8 , 2002, Zevola summarized his review of Davey’s
LTD claim as follows: “[Davey] has been diagnosed with major
depression and fibromyalgia. Her symptoms are consistent with
-19- both diagnoses. . . . It appears that [Davey’s] primary diagnosis
is depression although all providers have [provided]
restrictions. Based on the medical documentation, it appears
that the occupational restrictions are supported by the medical
documentation.” Id. at 168-69, 473. Based on Zevola’s review,
Davey’s LTD claim was approved on March 2 5 , 2002. Id. at 169.
CGI sent Davey a letter informing her that her LTD benefits had
been approved, subject to the LTD Plan’s mental illness
limitation of 24 monthly payments. Id. at 476-77.
Davey saw D r . Shirley on April 2 6 , 2002, and reported that
she continued to suffer from “fogginess of thought” and “intense
fatigue.” Id. at 524. D r . Shirly noted that Davey had shown
“very limited improvement, if any, on a very comprehensive
multidisciplinary program for management of her soft tissue
pain.” Id. On the same day, he completed an Attending
Physician’s Statement of Disability in which he reported that
Davey’s maximum level of physical ability was “sedentary at most”
and she would “never” be able to go back to work. Id. at 491-92.
By letter dated January 6, 2003, CGI informed Davey that her
LTD claim was being reviewed because she was approaching the “18
month point,” at which time she would be considered disabled only
-20- if she was unable to perform the essential duties of any
occupation for which she was reasonably qualified. Id. at 508.
The letter also stated that Davey would only be eligible for
benefits through December 4 , 2003, because of the 24-month mental
illness limitation. Id. at 509. Davey was asked to complete a
Disability Questionnaire, see id. at 525-28, and CGI requested
updated records from D r . Carman and D r . Shirley. Id. at 5 1 0 ,
513.
In response, D r . Carman submitted office notes from her
appointments with Davey on May 3 , July 2 , and October 3 , 2002.
Id. at 515-20. She also noted that Davey’s depression was in
“partial remission” and her activities were “[p]rimarily limited
by physical pain and easy fatiguability [and] not by depression
at this point.” Id. at 516-17. D r . Shirley submitted office
notes for his appointments with Davey on April 26 and October 2 3 ,
2002. Id. at 521-24. He reported that Davey had diffuse pain
that was always present as well as fatigue and sleep
disturbances. Id. at 521. In response to the question, “What
prevents him or her from performing, on a full-time basis,”
“sedentary work,” “light work” and “medium work,” D r . Shirley
crossed out “light work” and “medium work” and wrote “fatigue,
-21- diffuse pain.” Id. at 522.
Davey saw D r . Carman on January 2 3 , 2003 and reported that
“her pain [had] been fairly significant over the last three
months.” Id. at 585. D r . Carman noted that Davey had
osteoarthritis in addition to fibromyalgia. Id. D r . Carman
reported that Davey’s “mood clearly hinges on how she is doing
physically. It does not appear to be a failure of her
psychotropics at this point.” Id. She did not make any changes
to Davey’s medications. Id.
On March 2 4 , 2003, Davey saw D r . Shirley because she was
“having a lot of increased pain in the left lateral hip girdle
region.” Id. at 624. She also “complain[ed] vehemently about a
lack of acuity of thought.” Id. D r . Shirley gave her an
injection in the “left trochanteric bursa” to address the hip
pain. Id. Davey saw D r . Shirley again on April 2 1 , 2003, and
said she felt about the same. Id. at 623. She reported having a
lot of fatigue and difficulty concentrating. Id.
On April 2 4 , 2003, Davey’s LTD claim was reviewed by D r .
Neilson, a consulting physician for CGI. Id. at 169. D r .
Neilson thought that Davey’s cognitive symptoms were related to
depression and not the “fog” that can result from fibromyalgia.
-22- Id. He recommended that Davey undergo a functional capacity
evaluation (“FCE”) to determine if she could perform a sedentary
occupation. Id.
The same day, Davey saw D r . Carman and reported being “very
stressed” because her LTD benefits would be ending in June or
December and she would also lose her medical insurance at that
time. Id. at 726. D r . Carman noted that Davey was “still
clearly unable to return to work due to both her physical and
psychiatric illnesses.” Id.
On June 6, 2003, Davey underwent an FCE at HealthSouth
Sports Medicine and Rehabilitation (“HealthSouth”). Id. at 550.
Davey was not able to complete some of the FCE tests due to
fatigue and pain. Id. at 555. The report concluded that Davey
was functioning “below the sedentary physical demand category for
an 8 hour work day with a maximum lift of 6 lbs., frequent
positional changes from standing to walking, and constant
sitting.” Id. at 554. The report also noted that a “higher
capacity may have been possible due to self limiting behavior,
minimal musculoskeletal changes, and inconsistencies with
isometric testing.” Id. Under “physical demand category”, the
“Sedentary Work” box was checked. Id.
-23- On June 1 7 , 2003, D r . Carman submitted additional medical
records to C G I , including notes from Davey’s office visits in
2002 and 2003. Id. at 581.
On June 2 0 , 2003, CGI asked D r . Shirley to clarify whether
he thought that Davey could perform sedentary work and to comment
on the FCE. Id. at 597. D r . Shirley responded that he did not
think Davey had “a physical work capacity at any capacity level
at a part or full time basis.” Id. at 603. On July 1 8 , 2003,
CGI requested that D r . Shirley provide “any objective medical
information available regarding your treatment of [Davey] that
you feel refutes the functional capacity testing completed and
supports your statement that she cannot maintain sedentary
activity for more than an hour or so.” Id. at 607. After seeing
Davey on July 2 1 , 2003, see id. at 6 2 1 , D r . Shirley responded
that the FCE was consistent with his “feeling clinically that
[Davey] does not have a full-time capacity for work in any
physical capacity currently.” Id. at 776. He interpreted the
FCE to mean that “even though [Davey] might have a sedentary work
capacity at times, she clearly cannot function on a full-time
basis.” Id. In August 2003, CGI requested additional medical
records and D r . Shirley submitted notes from Davey’s October 2 3 ,
-24- 2002 through July 2 1 , 2003 office visits. Id. at 620.
On August 2 2 , 2003, Davey spoke with Lynette Gibson at CGI
and told her that she was going back to her psychiatrist in order
to “prove [her] disability.” Id. at 626.
By letter dated September 4 , 2003, CGI informed Davey that
she was no longer disabled under the terms of the LTD Plan. Id.
at 627-29. Davey was paid LTD benefits through October 4 , 2003.
Id. at 675.
F. Davey’s appeal
Davey saw Drs. Carman and Shirley in October 2003 and asked
them to write letters in support of her LTD claim. Admin. R. at
653, 725. D r . Carman noted that Davey “appear[ed] to be having a
relapse of her depression” due in part from increased stress.
Id. at 725. Both doctors concluded that Davey was unable to work
in any capacity. Id. at 653, 725. D r . Shirley also sent a
letter to CGI on October 2 9 , 2003, contending that he had
provided medical documentation of Davey’s fibromyalgia and her
inability to work at a sedentary capacity. Id. at 637-38.
By letter dated December 1 2 , 2003, Davey appealed the
termination of her LTD benefits. Id. at 650-51. In support of
her appeal, Davey submitted a letter from D r . Carman dated
-25- October 2 8 , 2003, and office notes from Davey’s appointments with
Dr. Shirley through October 2 9 , 2003. Id. at 652-59.
On December 1 8 , 2003, Davey saw D r . Carman, who planned to
leave her practice in February 2004.10 Id. at 724. D r . Carman
reported that Davey remained “disabled by a combination of her
fibromyalgia and depression.” Id.
CGI acknowledged receipt of Davey’s appeal on January 1 2 ,
2004 and gave Davey the opportunity to submit additional
information in support of her appeal. Id. at 673-74. On
February 2 0 , 2004, Davey’s attorney submitted an October 2 7 , 2003
letter from Davey in which she contested the termination of her
LTD benefits. Id. at 679-82.
CGI then referred Davey’s claim to two independent examiners
for peer reviews. Id. at 684-88. On or about March 1 7 , 2004,
CGI received a peer review report from D r . Barry Kern, who is
board-certified in occupational medicine. Id. at 690-96. To
prepare his report, D r . Kern reviewed Davey’s medical records and
10 Davey’s psychiatric care was transferred to D r . Joseph Sack, who worked in the same practice. Admin. R. at 724. D r . Sack began seeing Davey in February 2004 but did not want to be involved in her LTD appeal. Id. at 722-23.
-26- spoke with D r . Shirley on March 8 , 2004. Id. at 694. D r . Kern
concluded:
[Davey's] diagnosis is fibromyalgia. She has had this for at least 8 years. Her symptoms are pain in her joints and fogginess of thinking. . . . The treating doctor and the patient have stated that her symptoms have worsened but there are no clinical objective findings to support this. She states she has fogginess of thinking but there have been no objective measures to verify this symptom. . . .
The medical documentation does not support [Davey's] inability to work full time at a sedentary position during the time period of October 4 , 2003 through present. The patient has had the diagnosis of fibromyalgia for at least 8 years and worked at least five of those years after the diagnosis. She reported stressors at work and this was the reason that her psychiatrist initially took her off of work. She did not even go to her treating rheumatologist to determine if her fibromyalgia was significant enough to preclude work. . . . Discussion with the treating rheumatologist indicates that he feels that the patient cannot do any meaningful work, even sedentary work. This is based entirely on his clinical judgment. In my opinion, the objective findings in the available medical records do not support this degree of limitation. There is no documentation presented that would indicate [Davey] would be limited from performing her regular fulltime [sic] work activities at this time. There was no change in her clinical objective findings prior to the time she went out of work compared to the time after she went out of work. The treating physician’s decision regarding functional impairment appears to be based on subjective complaints and her failure to improve on her medical regimen.
-27- Id. at 695.
On or about March 2 2 , 2004, CGI received a second report
from I . Jack Abramson, M.D., a board-certified psychiatrist. Id.
at 697-700. D r . Abramson reviewed the available medical records,
including D r . Carman’s October 2 8 , 2003 letter. Id. at 698. He
also spoke with D r . Shirley and attempted to contact D r . Carman
at her former office.11 Id. at 699. D r . Abramson was asked to
comment on Davey’s ability to function on a continuing basis
since October 4 , 2003, and he found the medical documentation to
be “significantly lacking” in that regard. Id. D r . Abramson
concluded: “In terms of [Davey’s] psychiatric symptoms, the
documentation and clinical information provided is inadequate to
support her inability to function in a work setting on a
continuous basis since October 4 , 2003.” Id.
On April 7 , 2004, CGI informed Davey that it was affirming
the termination of her LTD benefits based in part on the reports
of Drs. Kern and Abramson. Id. at 707-08.
11 D r . Sack, who started seeing Davey after D r . Carman left the practice, was unwilling to comment on issues related to Davey’s LTD claim. Admin. R. at 699.
-28- On May 6, 2004, Davey’s attorney submitted an April 2 1 , 2004
letter from D r . Shirley in which he disagreed with D r . Kern’s
report. Id. at 712-14. CGI responded that D r . Shirley’s letter
was not supported by medical records and was not sufficient for a
“voluntary appeal.” Id. at 715. On June 2 9 , 2004, Davey’s
attorney submitted copies of D r . Carman’s office notes between
1999 and 2003, as well as D r . Joseph Sack’s office notes from
February and April 2004. Id. at 719-56. Davey’s attorney also
indicated that he was trying to obtain an updated report from D r .
Carman. Id. at 719-20.
On July 1 9 , 2004, CGI informed Davey that it was accepting
her voluntary appeal. Id. at 757-60. Davey was given the
opportunity to submit additional information to support her LTD
claim. Id. at 757-58. On August 1 2 , 2004, Davey’s attorney
reported that he was still waiting for a report from D r . Carman,
which he had requested three times. Id. at 762.
On October 6, 2004, CGI informed Davey that the additional
information submitted by her attorney had been reviewed and the
decision to deny her further LTD benefits had been upheld. Id.
at 767-69. Davey’s claim had been reviewed by CGI’s Associate
Medical Directors, who concluded that the medical information on
-29- appeal was “not compelling to support an impairment to preclude
[Davey] from performing her occupation.” Id. at 768. The letter
also noted that although Davey “had complaints of fibromyalgia
and depression,” CGI had “not been provided with medical
information that supports a severity in her conditions which
would preclude [Davey] from performing a sedentary occupation.”
Id. at 769. CGI also informed Davey that she had exhausted all
administrative levels of appeal. Id. On October 2 8 , 2004,
Davey’s attorney wrote to the Appeals Claim Examiner at CGI and
enclosed a copy of D r . Shirley’s July 2 1 , 2003 letter. Id. at
774. He also indicated that he was still waiting for a report
from D r . Carman. Id.
This action followed.
II. STANDARD OF REVIEW
When a denial of benefits is challenged under ERISA, §
1132(a)(1)(B), and the “plan administrator has discretion to
determine an applicant’s eligibility for and entitlement to
benefits, the administrator’s decision must be upheld unless it
is ‘arbitrary, capricious, or an abuse of discretion.’” Gannon v .
-30- Metro. Life Ins. Co., 360 F.3d 2 1 1 , 212-13 (1st Cir. 2004)
(quoting Vlass v . Raytheon Employees Disability Trust, 244 F.3d
2 7 , 29-30 (2001)); see Firestone Tire & Rubber C o . v . Bruch, 489
U.S. 1 0 1 , 115 (1989). This standard means that “the
administrator’s decision must be upheld if it is reasoned and
supported by substantial evidence” in the record. Gannon, 360
F.3d at 213. Substantial evidence means evidence that is
“reasonably sufficient to support a conclusion,” and “the
existence of contradictory evidence does not, in itself, make the
administrator’s decision arbitrary.” Vlass, 244 F.3d at 3 0 .
Finally, in reviewing a decision to terminate benefits, “a court
is not to substitute its judgment for that of the decision-
maker.” Terry v . Bayer Corp., 145 F.3d 2 8 , 40 (1st Cir. 1998)
(quotation and brackets omitted).
III. ANALYSIS
Davey challenges both the decision to terminate her LTD
benefits and the procedure LINA followed to reach that decision.
Specifically, Davey argues that (1) there is no medical evidence
in the record to support the determination that she can work in a
sedentary capacity; (2) LINA inappropriately relied upon the
-31- opinion of its consulting physicians and failed to submit all of
Davey’s medical records to its medical advisor; and (3) the LTD
Plan’s 24-month mental illness limitation should not be applied
to her claim.12 I address each of her arguments in turn.
A. Medical evidence
First, Davey contends that the medical evidence does not
support LINA’s determination that she was capable of doing
sedentary work in September 2003, when her LTD benefits were
terminated. A careful review of the record reveals conflicting
evidence in this regard. In order to qualify for continued LTD
benefits, Davey had to be “unable to perform all the material
duties of any occupation” for which she was qualified. Admin. R.
at 780. D r . Carman and D r . Shirley were asked to provide updated
medical records in January 2003 to assist CGI in determining
12 Davey also claims that the initial decision to terminate her STD benefits was made in bad faith so that she could not qualify for LTD benefits. Pl.’s Mot. at 1 6 . However, LINA did not administer or insure Davey’s STD benefits and therefore is not the proper defendant against which to bring this claim. Furthermore, CBH ultimately paid Davey’s STD benefits in full and therefore she cannot state a claim under ERISA § 502(a)(1), 29 U.S.C. § 1132(a)(1). To the extent that Davey seeks compensatory or punitive damages based on her allegations of “bad faith,” see Am. Compl. at 6, such extracontractual damages are not recoverable under ERISA. See Drinkwater v . Metro. Life Ins. Co., 846 F.2d 8 2 1 , 825 (1st Cir. 1988).
-32- whether Davey met this criteria. Id. at 5 1 0 , 513. D r . Carman
responded that Davey’s depression was in “partial remission” and
that she was limited primarily by physical pain. Id. at 517.
Dr. Shirley responded that Davey suffered from diffuse pain,
fatigue and sleep disturbances. Id. at 521. His report
indicated that Davey could not perform “light” or “medium” work,
but was unclear as to whether she could perform sedentary work.
Id. at 522.
Davey underwent an FCE on June 6, 2003, to evaluate her
capacity to perform sedentary work. Id. at 554. The FCE report
noted that Davey “complained of low back pain with the maximum
floor to knuckle lift” and “complained of shoulder and neck pain
with the maximum knuckle to shoulder and shoulder to overhead
lifting.” Id. at 555. Other tests were not completed at Davey’s
request. Id. Although the report concluded that Davey was
functioning below the “sedentary physical demand category,” it
also noted that a “higher capacity may have been possible due to
self limiting behavior . . . and inconsistencies with isometric
testing.” Id. at 554. The “Sedentary Work” box under “physical
demand category” was also marked. Id.
-33- CGI then asked D r . Shirley to comment on the FCE and Davey’s
ability to perform sedentary work. Id. at 597. On July 2 1 ,
2003, D r . Shirley responded that the FCE was consistent with his
clinical “feeling” that Davey did not have the physical capacity
to work. Id. at 776. He interpreted the FCE to mean that “even
though [Davey] might have a sedentary work capacity at times, she
clearly cannot function on a full-time basis.” Id. In August
2003, D r . Shirley submitted office notes from Davey’s most recent
visits at CGI’s request. Id. at 620.
After Davey appealed the termination of her LTD benefits,
her claim was reviewed by two independent consultants, Drs. Kern
and Abramson. Id. at 6 9 1 , 698. Both examiners reviewed Davey’s
medical records and spoke with D r . Shirley. Id. at 6 9 4 , 699.
Dr. Shirley told D r . Kern that he did not think Davey could do
sedentary work. Id. at 695. D r . Kern thought that “the
objective findings in the available medical records [did] not
support this degree of limitation” and that D r . Shirley was
basing his conclusions on Davey’s “subjective complaints” and
“failure to improve on her medical regimen.” Id. D r . Abramson
thought the “documentation and clinical information” were
-34- “inadequate” to support a finding that Davey was unable to work.
Id. at 699.
Davey submitted additional medical records in June 2004 as
part of her voluntary appeal. Id. at 719-56. CGI’s Associate
Medical Directors reviewed Davey’s medical records and concluded
that they were “not compelling to support an impairment” that
would preclude Davey from performing a sedentary occupation. Id.
at 768.
Viewing the record as a whole, there is substantial evidence
to support LINA’s determination that Davey could perform
sedentary work in September 2003. In January 2003, D r . Carman
reported that Davey was primarily limited by physical pain and
not depression. Id. at 517. CGI then requested the FCE to
determine Davey’s physical capacity to work. Although the
results were somewhat equivocal, as LINA acknowledges, the
reliability of the test was limited by Davey’s failure to perform
all of the required tasks. CGI also relied upon the opinion of
its medical consultants, who reviewed Davey’s medical records and
spoke with her treating physicians. The consultants found
inadequate support for D r . Shirley’s opinion that Davey did not
-35- have the capacity to work in a sedentary position. Accordingly,
I conclude that LINA’s decision to terminate Davey’s LTD benefits
was reasonable and entitled to deference. See Gannon, 360 F.3d
at 213.
B. Procedure
Next, Davey argues that LINA improperly relied upon the
opinions of its consultants over the recommendations of her
treating physicians. Although plan administrators may not
“arbitrarily refuse to credit a claimant’s reliable evidence,
including the opinions of a treating physician,” they are not
required to “accord special weight to the opinions of a
claimant’s physician.” Black & Decker Disability Plan v . Nord,
538 U.S. 8 2 2 , 834 (2003). Here, LINA did not arbitrarily
discredit D r . Shirley’s opinion but rather concluded that his
conclusions were not adequately supported by objective medical
evidence. See Admin. R. at 628-29, 707. The fact that D r .
Shirley did not agree with the opinions of LINA’s medical
consultants does not render LINA’s decision arbitrary or
capricious. See Gannon, 360 F.3d at 216 (“[I]n the presence of
conflicting evidence, it is entirely appropriate for a reviewing
-36- court to uphold the decision of the entity entitled to exercise
its discretion.”).
Davey also contends that LINA’s procedure was flawed because
it failed to provide all of her medical records to its
“psychiatric medical advisor.”13 Pl.’s Mot. at 1 8 . Davey’s
claim apparently arises from D r . Abramson’s comment in his March
2004 report that there was “no psychiatric documentation beyond a
letter from D r . Carman dated October 2 8 , 2003.” Admin. R. at
699. Davey submitted additional records from her office visits
with Drs. Carman and Sack, which were reviewed by CGI’s
Psychiatric Associate Medical Director as part of Davey’s
voluntary appeal. Id. at 767-69. Davey apparently contends that
LINA should have provided the additional records to D r . Abramson
for a second review instead of having a different consultant
review the records. This argument is without merit because ERISA
does not require the plan administrator to consult the same
medical advisor at different levels of appeal; indeed, the
regulations suggest that deference should not be given to a prior
13 It is not clear whether Davey is referring to D r . Abramson or the Psychiatric Associate Medical Director who reviewed Davey’s voluntary appeal. See Admin. R. at 768.
-37- adverse benefit determination. See 29 C.F.R. § 2560.503-
1(h)(3)(ii).
C. Mental illness limitation
Finally, Davey argues that LINA should be “estopped” from
applying the LTD Plan’s 24-month mental illness limitation to her
claim and that this provision violates the Americans with
Disabilities Act, 43 U.S.C. § 1201 et seq. Davey’s LTD benefits
claim was initially approved subject to the 24-month mental
illness limitation because her primary diagnosis was depression.
Admin. R. at 476-77. However, Davey only received LTD benefits
for 22 months and the termination of her benefits was not based
on the mental illness provision. See id. at 627-29. Rather, as
discussed above, Davey’s benefits were terminated because LINA
determined that she was no longer disabled under the terms of the
LTD Plan. Id. at 629.
IV. CONCLUSION
For the foregoing reasons, I grant LINA’s motion for
judgment on the administrative record (Doc. N o . 16) and deny
Davey’s motion (Doc. N o . 1 5 ) . The clerk shall enter judgment
accordingly.
-38- SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
June 1 4 , 2006
cc: Bradley M . Lown, Esq. William D. Pandolph, Esq.
-39-