Few v. Liberty Mutual CV-06-427-JL 3/19/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Sharon Few
v. Civil N o . 1:06-cv-00427-JL Opinion N o . 2009 DNH 027 Liberty Mutual Insurance Company et a l .
O R D E R
In this action brought pursuant to the Employee Retirement
Income Security Act, 29 U.S.C. §§ 1001- 1461 (2000 & Supp. 2005),
pro se plaintiff Sharon Few seeks to reinstate benefits under a
life insurance policy she claims were wrongfully terminated by
defendants Liberty Mutual Life Insurance and Liberty Life
Assurance Company of Boston (collectively “Liberty Life”) and
certain Liberty Life employees, namely, Jolene Knight-Ballou,
Linda Stalk, and Wayne Evans.1 See 29 U.S.C. § 1132. The
1 Defendants Knight-Ballou, Stalk, and Evans were added as parties primarily as part of a RICO claim, see 18 U.S.C. § 1961- 1968 (2000 & Supp. 2005), that was later dismissed by the court. See Few v . Liberty Mut. Ins. e t . a l . , N o . 06-cv-427-SM (D.N.H. October 1 1 , 2007); Few v . Liberty Mut. Ins. e t . a l . , N o . 06-cv- 427-SM slip. o p . at 16-19 (D.N.H. May 1 6 , 2007). The court notes, without deciding, that had the plaintiff’s ERISA claim survived summary judgment, it is unlikely that it could successfully be brought against Knight-Ballou, Stalk, or Evans. See, e.g., Livick v . The Gillette Co., 524 F.3d 2 4 , 29 (1st Cir. 2008) (discussing contours of functional fiduciary status); Beddall v . State Street Bank and Trust Co., 137 F.3d 1 2 , 18 (1st Cir. 1998). defendants have filed a “Motion for Summary Judgment on the
Administrative Record,”2 see generally, L.R. 9.4(c)(1996),
contending that their actions with respect to the life insurance
policy were valid. This court has jurisdiction under 29 U.S.C.
§ 1132(e) (ERISA). After due consideration of the record, and a
hearing on the merits, the court grants the defendants’ motion.
I. APPLICABLE LEGAL STANDARD
In ERISA cases where a claimant seeks review of a denial of
benefits, the role of summary judgment is limited. Orndorf v .
Paul Revere Life Ins. Co., 404 F.3d 5 1 0 , 517 (1st Cir. 2005); see
Bard v . Boston Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006);
cf. Fed. R. Civ. P. 5 6 . The standard of review in an ERISA case
differs from review in an ordinary civil case, where summary
judgment serves as a procedural device designed to screen out
cases that present no trial-worthy issues. See Leahy v . Raytheon
Co., 315 F.3d 1 1 , 17 (1st Cir. 2002); Orndorf, 404 F.3d at 517.
Because the focus of the court’s review in an ERISA case is the
final administrative decision, “the district court sits more as
an appellate tribunal than as a trial court.” Leahy, 315 F.3d at
18. Therefore, “[i]n the ERISA context, summary judgment is
2 The court notes that the plaintiff did not file a motion for judgment on the administrative record. See L.R. 9.4(c).
2 merely the vehicle for deciding the case; the factual
determination of eligibility for benefits is decided solely on
the administrative record, and the non-moving party is not
entitled to the usual inferences in its favor.” Bard, 471 F.3d
at 235 (quotations omitted). 3
The Supreme Court, in Firestone Tire & Rubber C o . v . Bruch,
489 U.S. 101 (1989), set forth a series of principles to guide
courts in ERISA benefits cases. See Metro. Life Ins. C o . v .
Glenn, 128 S.Ct. 2343, 2347-48 (2008). “[A] denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a de
novo standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Firestone Tire
and Rubber, Inc., 489 U.S. at 115. The defendants concede that
their decision is properly reviewed by this court under a de novo
standard of review. See Def’s Mot. for Summ. J. 6, n.3; see
generally, Firestone Tire and Rubber, Inc., 489 U.S. at 115
(applicability of de novo standard of review); c f . Glenn, 128
S.Ct. at 2348 (determining whether deferential standard of review
applies). Under the de novo standard, the court must determine,
3 “[T]he use of summary judgment in this way is proper regardless of whether . . . review of the ERISA decision maker’s decision is de novo or deferential.” Orndorf, 404 F.3d at 517.
3 after a full review of the administrative record, whether the
administrative decision was correct. See, e.g. Orndorf, 404 F.3d
at 518. Although the de novo standard allows the court to
substitute its judgment for that of the plan administrator, the
claimant still carries the burden of demonstrating that she is
disabled within the terms of the plan. See id. at 519; see
generally, Terry v . Bayer Corp., 145 F.3d 2 8 , 34 (1st Cir. 1998).
In sum,
de novo review generally consists of the court’s independent weighing of the facts and opinions in [the] record to determine whether the claimant has met [her] burden of showing [she] is disabled within the meaning of the policy. While the court does not ignore facts in the record, the court grants no deference to administrators’ opinions or conclusions based on these facts.
Orndorf, 404 F.3d at 518 (citation omitted).
To the extent a court must interpret plan language, “[b]oth
trust and contract principles apply . . . .” Rodriguez-Abreu v .
Chase Manhattan Bank, N.A., 986 F.2d 5 8 0 , 585 (1st Cir. 1993).
“When interpreting the provisions of an ERISA benefit plan, we
use federal substantive law including the common-sense canons of
contract interpretation.” Id. (quotations omitted). The terms
of the plan, therefore, are enforced according to its plain and
unambiguous meaning, and whether the plan term is ambiguous is a
4 question of law for the court. Balestracci v . NSTAR Elec. and
Gas Corp., 449 F.3d 2 2 4 , 230 (1st Cir. 2006).
II. BACKGROUND
This court’s review is limited to the administrative record,
see, e.g., Orndorf, 404 F.3d at 5 1 7 , 519, and because review is
de novo, this court’s focus is directed to the record relevant to
the merits of Liberty Life’s denial of benefits. Few was
employed as a “retro-rater” at Liberty Mutual in the late 1980s
and was a participant in a group life insurance policy4
(“policy”) sponsored by company. Defendant Liberty Life
Assurance Company was the insurer and claims administrator under
the policy.
The terms of the policy include a “waiver of premium”
benefit whereby the policy premiums will be waived during a
4 At times the plaintiff has disputed whether the policy in the record was the exact policy she was subject to and has alleged that the defendants have forwarded different versions of that policy to her. In the course of its de novo review, the court was careful to refer to the group life insurance policy carrying the same policy number as that noted on paperwork completed by the plaintiff when making her original claim under the policy in 1992.
5 period of total disability on the part of the policyholder. The
relevant terms of the policy, as amended on July 1 , 1980,5 state:
Waiver of Premium Benefit - If due proof (herein called ‘initial proof’) is furnished to the Company that an Employee, while insured under the policy and before his or her sixtieth birthday, shall have become totally disabled after June 3 0 , 1980, and that such disability has existed continuously for at least six months, the Company will waive further payment of premium on the Employee’s insurance.
Continued waiver of premium shall be subject to (a) annual submission of due proof of the continued existence of total disability within three months preceding each anniversary of receipt of initial proof and (b) submission by the Employee to examination by a physician, as provided below. Waiver of premium will terminate upon the earliest of (a) failure to submit the required proof of the continued existence of total disability, (b) failure to submit to examination by a physician, as provided below, and (c) cessation of total disability; . . . .
The Company shall have the right to have a physician it designates examine the Employee whenever it may reasonably require.
In 1992, Few requested that Liberty Life waive payment of
her life insurance premium. She also submitted a proof of
disability form, completed by D r . Maria Gatacales in April 1992,
5 Few, in various filings with this court, references an early version of the policy, which differs substantially from the 1980 amended version. As discussed in detail in Part III-A infra, the court reviewed all the relevant plan documents and concludes that the applicable waiver of premium benefit provision is the amended version. C f . Giannone v . Met. Life Ins. Co., 311 F. Supp.2d 1 6 8 , 176 (D. Mass. 2004) (the rule in an ERISA case is that courts will consider all relevant plan documents); citing Bond v . Cerner Corp., 309 F.3d 1064, 1067-68 (8th Cir. 2002).
6 indicating that Few had been totally disabled since 1990 due to a
major depressive episode, mild adjustment disorder, and a
“dysthymic disorder.”6
Liberty Life approved Few’s application for waiver of the
premium benefit in June 1992. 7 It continued to pay the waiver of
premium benefit until July 2005, when Liberty Life terminated
Few’s policy.8 It appears that Liberty Life routinely paid the
premium benefit through 2000 9 , when Few requested a copy of her
policy, and asserted that she was due $25,000 under its terms.
In June 2000, Liberty Life informed Few that it was reviewing her
waiver of premium claim and that she would be required to update
her medical information.10 When Few contacted Liberty Life and
asked if she could submit a social security disability approval
letter as proof, Liberty Life informed her that it required more
direct medical documentation of her disability.11 Few eventually
submitted a proof of disability form, completed by D r . Hugh 6 Record at 649. 7 Record at 101. 8 Record at 425-30. 9 Record at 825 - It is uncertain whether this happened in 1999 or 2000, but in an August 2001 letter, Few states that “last year” she made this request. 10 Record at 1330. 11 Record at 8 8 .
7 Lurie, stating that she was totally disabled because of major
recurring depression.12 Liberty Life approved her claim for a
waiver of premium benefit in December 2000, but informed Few that
she would be contacted “on an annual basis for updated medical
documentation to support your continued disability.”13
Liberty Life continued to pay the waiver of premium benefit
through 2004. During this time, however, Few became increasingly
resistant to providing medical records to Liberty Life,14
informing company representatives at various times that she
believed that Liberty Life’s requests were unreasonable, illegal,
and constituted harassment.15 In August 2002, she completed
Liberty Life’s “Combined Questionnaire” form and attached a
lengthy typed memorandum in which she stated that she had
recently been diagnosed with multiple sclerosis and describing
numerous physical impairments, including, but not limited t o :
severe physical pain when sitting, standing, lifting and walking,
sensitivity to clothing, difficulty driving, back, neck, and
shoulder pain, extreme fatigue, inability to concentrate,
12 Record at 836. 13 Record at 1328. 14 Record at 822-23; 825-26. 15 Id.
8 sensitivity to heat and sunlight, memory loss, depression, and
headaches.16 She continued to assert that Liberty Life was
making unreasonable demands for information and “I consider this
harassment and Liberty is jeopardizing my health.”17 She also
provided attending physician forms completed by D r . William
Sheremata, a neurologist, in July 2002 indicating that Few
suffered from multiple sclerosis, memory loss, and depression.18
His report indicated that she had a “Class 5” (severe limitation)
physical impairment and “Class 4” (marked limitations) mental
impairment. Few, who apparently was present when the forms were
completed, noted on the section of the form requesting copies of
office notes, test results, and other medical records, that “I do
not authorize that this information be provided to anyone.”19
She further refused to assent to the standard medical records release form.20
In response, Liberty Life informed Few that it needed such
information to evaluate her disability claim and D r . Sheremata’s
16 Record at 806-810. 17 Record at 810. 18 Record at 815-817. 19 Record at 816. 20 Record at 815.
9 diagnosis of multiple sclerosis. It also noted that it required
updated information regarding that diagnosis of depression that
had been the basis of disability up to that time.21 Liberty Life
also informed Few that if it did not receive the proper forms and
underlying documentation from D r . Sheremata, “your claim may be
closed for failure to provide proof for your waiver of premium
benefit.”22
Liberty Life and Few continued to wrangle over forms and
documentation through July 2004 when Liberty Life informed Few
that it would continue to approve her benefit for that year even
though it concluded that Few had failed to provide the company
with sufficient medical information to support the multiple
sclerosis diagnosis and continued disability.23 It informed Few
that it would request medical updates on an annual basis
beginning February 2005.
Liberty Life, on February 2 8 , 2005, sent Few a number of new
forms, including a medical records release form and medical
questionnaire. It informed Few that it had scheduled an
21 Record at 726-728. 22 Record at 727. 23 Record at 672. Specifically, Few had not forwarded D r . Sheremata’s medical records and provided only her social security approval letter.
10 independent medical exam for her, explaining that if she did not
authorize release of her medical records, the scheduled
examination would proceed only with the records on file at
Liberty Life.24 Few did not provide any additional medical
records, but did attend an independent medical examination with
Dr. Jonathan Amy, a board certified neurologist, in April 2005.
Dr. Amy issued a report25 stating that although he could not rule
out multiple sclerosis based on the limited medical information
available to him, he found Few’s symptoms “quite vague” and that
they did not strongly support that diagnosis. He noted that
“[i]t would be essential, in order to evaluate this any further,
to have access to her MRI scans and the results of any other
previous neurological evaluations.”26 He also opined that Few
was able to “perform walking activities, sitting activities, and
standing activities in an unrestricted fashion,” and because her
psychological status appeared normal, “there is [no] medical
reason why M s . Few would be unable to return to work.”27 D r . Amy
also recommended that Few undergo a functional capacity
24 Record t 586-87. 25 Record 546-557. 26 Record at 554. 27 Record at 555.
11 examination (“FCE”) to better evaluate her “ability to work, as
well as any physical restrictions and/or limitations . . . .” 2 8
A few weeks later, Liberty Life attempted to schedule for
Few an independent psychiatric evaluation (“IPE”) in order to
evaluate her claim of depression.29 Few objected on the basis of
her reading of the policy, which she understood to authorize only
one doctor visit per year.30 By a letter dated June 7 , 2005,
Liberty Life directed Few to the policy provision set forth
above, and again requested that she submit the proper medical
forms and schedule an IPE. In that letter, Liberty Life again
notified Few that failure to update her medical information would
result in cancellation of the waiver of premium benefit.31 Few
replied to Liberty Life with two letters regarding her situation,
dated June 14th and 15th. In the earlier letter,32 she refused
to attend any more appointments made by Liberty Life or to
authorize the release of any further medical records. She also
28 Record at 555. 29 Record at 540. 30 Record at 9 3 . The policy provision Few relied on was superceded by the 1980 amendment to the policy that was in effect when she was an employee of Liberty Mutual. See infra Part III- A. 31 Record at 406-407. 32 Record at 1043-45.
12 stated that she was now consulting with a hematologist about a
potential blood disorder,33 and had developed diarrhea and
arthritis. She further alleged that Liberty Life was “inflicting
undue emotional stress upon m e , which is causing unnecessary
relapses of my condition and adding some new symptoms, such a s ,
heart palpitations, anxiety attacks, nightmares, and sleepless
nights.34 In the latter letter,35 she wrote that she believed
that Liberty Life’s demands for information were excessive and
that she had sufficiently complied with the requirements of the
policy. She stated that “I will not at this time furnish any
other documents to Liberty Mutual.”36 Further, she reiterated
her refusal to “see anymore doctors this year because it is my
understanding that Liberty is limited to how many appointments
they can force upon m e , and their request is outside of all legal
limits.”37 Few refused to provide any further medical
information to the company, even though she stated in her June
33 Liberty Life claims that defendant Stalk, in a phone conversation with Few in June 2005, asked Few to provide records from the hematologist and other physicians Few claimed to be consulting at the time and Few refused. 34 Record at 1045. 35 Record at 497-500. 36 Record at 499. 37 Record at 500.
13 15th letter that she was currently under the care of “several
doctors.”38 Liberty Life responded by letter on June 20th that
failure to update her medical information and attend additional
medical examinations would result in loss of her benefit.39
That June, Liberty Life also referred the file to D r . Robert
Millstein, an internist, for review. D r . Millstein’s report
essentially concluded that based on the limited record before him
(summarized above) and the relative lack of current medical
information, Few’s claims of disability could not be
established.40 For example, he summarized both D r . Amy’s and D r .
Sheremata’s apparently conflicting assessments of Few’s multiple
sclerosis diagnosis and stated that because of limited medical
information, D r . Sheremata’s diagnosis could not be confirmed
because although the “available records describe a variety of
symptoms, which are nonspecific but which could be symptoms
associated with multiple sclerosis,” the record did not contain
even the most basic diagnostic data.41 He opined that the
limited record did not support Few’s claims of the presence of a
38 Id. 39 Record at 404-405. 40 Record at 465. 41 Record at 466-67.
14 disabling cognitive impairment, migraines, or hives. He noted
that he was unable to evaluate Few’s claims of disabling fatigue
and physical pain in the absence of records from her primary care
physician or neurologist.42 Finally, with respect to Few’s claim
of disabling depression (the medical condition that served as the
basis for the initial finding of disability) D r . Millstein
concluded that:
Although assessment of impairment due to depression is outside my area of expertise, the available medical information does not include support for the claimant receiving current psychiatric care or the use of antidepressants. Therefore, it would appear unlikely that depression would cause impairment which would preclude full-time work.43
Liberty Life subsequently informed Few that effective July
1 , 2005, it was cancelling Few’s waiver of premium benefit. In
its letter, Liberty Life stated that although Few had provided
proof of disability in the past, “proof is required on an annual
basis.”44 It noted her refusal to provide updated documentation
and attend further medical appointments. It stated that “[b]ased
on the IME completed by D r . Amy, a record review by a consulting
internist, and all other available records, we have determined
42 Record at 465. 43 Id. 44 Record at 426.
15 that there is not sufficient medical documentation to support
your continued eligibility under the waiver of premium
provision.”45 Liberty Life then summarized the findings of both
Dr. Amy and D r . Millstein, and Few’s refusal to attend follow-up
appointments or provide any medical records from her current
doctors.46 Liberty Life concluded that:
the Policy requires annual submission of due proof of the continued existence of total disability and submission to examination by a physician whenever Liberty may reasonably require. You have not submitted recent medical information, have refused to attend a further required examination, and have failed to return the required forms within the time provided. Therefore, due to the lack of medical documentation to support disability, we must deny your claim for the continued waiver of premium benefit effective July 1 , 2005. Should you provide us with documentation in support of your claim and agree to submit to a further medical examination, we would reconsider this determination.47
Few appealed Liberty Life’s decision and submitted
additional documentation and an affidavit in support of her
appeal.48 Liberty Life submitted the additional information to
45 Id. 46 Record at 427. 47 Record at 428. 48 Record at 324-345. The additional documentation included a proof of disability benefits letter from the social security administration dated August 2005, office notes and lab reports from a hematology/oncology practice generated in 2005, and various emergency room records and lab reports dated 1991-1993.
16 Dr. Millstein for review, and subsequently denied Few’s appeal.
After review of the new information provided by Few, Liberty Life
concluded that: “While we recognize that you continue to report
impairment associated with fatigue, pain, depression, memory
disturbance and multiple sclerosis, the totality of medical and
vocational documentation reviewed does not substantiate that you
are disabled from performing other occupations within your vocational capacity.”49
Specifically, it relied on D r . Millstein’s conclusion in an
October 2005 report that “[t]he additional information, which is
very limited, does not support the claimant’s report of total
disability,”50 and his conclusions from the June 2005 report. In
his October report, Millstein noted that the diagnosis of
multiple sclerosis and resulting functional impairment still
could not be assessed on the basis of the additional information
proffered by Few and in the absence of any further records from
Dr. Sheremata. He noted that Few submitted evidence from 1991 of
an allergic reaction, but that otherwise the “record does not
support ongoing episodes of generalized allergic reactions.”51
49 Record at 442. 50 record at 437. 51 Record at 438.
17 With respect to the potential blood disorder, D r . Millstein
reviewed the data and office notes from Few’s hematologist and
noted that “although [Few’s test results] can evolve into [a
serious blood disorder] the record does not support impairment at
present from this asymptomatic condition.”52 D r . Millstein also
stated that the hematologist’s notes revealed that a standard
performance test used to assess a patient’s functional
capabilities categorized Few as fully ambulatory, (“performance
status 1 ” ) . He stated that because Few had reported being
fatigued, “she was categorized as having a performance status of
1 instead of 0 (asymptomatic).” D r . Millstein called into
question Few’s claim of total disability, noting that “[a]
performance status of 2 equates to a symptomatic patient who is
bedridden less than 50% of the day,” thus implying that her
hematologist concluded that she was not even partially bedridden.53
Liberty Life reviewed its denial of the waiver of premium
benefit two additional times in January and February 2006 after
Few filed a complaint with the New Hampshire Department of
52 Record at 341 (copy of test result); 438-39. D r . Millstein also noted that records from 1993 did not reveal the presence of coronary artery disease at that time. 53 Record at 439.
18 Insurance.54 Liberty Life agreed to review documents provided to
the insurance department.55 In both cases, Few provided little
in the way of additional documentation from her physicians,56 and
Liberty Life refused to reconsider her appeal.57
Few, a resident of Virginia, eventually filed a thirteen
count complaint in the United States District Court for the
Eastern District of Virginia. That Court determined that venue
was proper in this court, and the matter was transferred here.
The only remaining count now before the court is Count 2 ,
asserting a cause of action under ERISA for denial of benefits.
The defendants have filed a motion for summary judgment on Count
2 , and for the reasons set forth below, that motion is granted.
III. ANALYSIS
Liberty Life contends that it is entitled to summary
judgment because Few failed to satisfy her burden of establishing
that she was entitled to the waiver of premium benefit.
54 Record at 229-236. 55 Record at 168-69; 206-207. The court notes that an initial set of documents were submitted to D r . Millstein for review. Record at 208-211. 56 Record at 168-244. 57 Record at 206-211; 1643-44.
19 Specifically, it argues that termination of the benefit was
appropriate because Few: (1) refused to submit to reasonable
requests for medical exams as required by the policy, and (2)
failed to provide “due proof” of her total disability.
A . Physician exams
The court first addresses Liberty Life’s contention that it
was justified in cancelling Few’s benefit because she refused to
submit to certain medical exams. As a preliminary matter, the
court must confront a dispute that lies at the heart of the
tension between the parties. Few and Liberty Life consistently
disagreed over the applicable policy language regarding the
insurer’s right under the policy to request that the insured
visit a physician. Specifically, Few insisted, relying on what
she believed was applicable policy language, that Liberty Life
only had the right to request one doctor visit per year. Few
maintained that the policy stated that “[t]he Company shall have
the right to have a physician it designates examine the Employee
whenever it may reasonably require during [her] disability, but
not more often than once a year after the Employee’s insurance
has been continued for two full years under this provision.”
Liberty Life, relying on the policy language set forth in Part
I I , supra, insisted that under the contract it could request an
20 exam when it reasonably required. The court concludes, after
review of all plan documents, that Liberty Life’s reading of the
policy was correct. The policy provision relied upon by Few can
be found within the policy documents under the heading “Permanent
Total Disability Benefit.” That provision was specifically
superceded by a comprehensive amendment to the plan in 1980
entitled “Waiver of Premium Benefit.” That 1980 amendment is the
applicable policy provision in this case and was appropriately
relied upon by Liberty Life.
On the basis of the record before i t , the court concludes
that Few failed to abide by the plain language of the terms of
the policy and termination of the benefit by Liberty Life was
appropriate. It is well-settled that “[u]nder ERISA, unambiguous
language in a plan is enforced according to its terms.”
Balestracci, 449 F.3d at 230; see, e.g., Hughes v . Boston Mutual
Life Ins. Co., 26 F.3d 2 6 4 , 268 (1st Cir. 1994)(“straightforward
language in an ERISA-regulated insurance policy should be given
its natural meaning”)(quotations omitted). The policy
unambiguously establishes that continued payment of the waiver of
premium benefit is contingent upon Few’s submission to reasonable
requests by Liberty Life for an independent medical exam.58 In
58 Although the issue of whether the rule of contra proferentem--that ambiguous terms in an insurance contract should
21 this case, Few adamantly refused to attend more than one
appointment per year, subjecting her to possible cancellation of
The terms of the policy, however, authorize Liberty Life
only to require that policy holders submit to reasonable requests
for additional medical exams. In this case, the court concludes
that Liberty Life’s request that Few attend an independent
psychological exam and functional capacity exam was not
unreasonable given the limited and somewhat dated information it
possessed in 2005.59
Specifically, Few was initially granted the benefit on the
basis of a finding of disabling depression in 1992. Although
Few’s subjective reporting and limited notations on D r .
Sheremata’s attending physician form indicated continuing
depression, D r . Amy’s and D r . Millstein’s reports called that
be strictly construed against an insurer--applies in the ERISA context is unclear, see Balestracci, 449 F.3d at 231 n.2, this dispute does not involve ambiguity of terms, but rather application of a clear amendment to the policy. Thus, this court need not concern itself with whether contra proferentem applies. See id. 59 The fact that the information available to Liberty Life was limited was a function of Few’s refusal to provide even basic diagnostic data. It strikes the court as unfair for a claimant to withhold supporting documentation and then complain that requests for medical exams to replace that information gap are unreasonable.
22 diagnosis into question as a continuing basis for disability.
When Few refused to submit updated information regarding her
depression, it was reasonable for Liberty Life to request an
independent psychological exam because the medical records on
that claim of disability were over a decade old. C f . Brigham v .
Sun Life of Canada, 317 F.3d 7 2 , 84 (1st Cir. 2003) (insurer’s
decision to require medical evidence beyond subjective
conclusions and unelaborated doctor’s notes is not arbitrary).
Further, it was reasonable to request a functional capacity
examination given Few’s new basis for disability, namely multiple
sclerosis. D r . Sheremata’s two-page attending physician form,
certain social security documents,60 and Few’s own reports
regarding multiple sclerosis suggested continued total
disability. In the absence of detailed medical records
supporting this changed diagnosis, however, c f . id. (insurer
justified in seeking some clinical explanation for changed
diagnosis), it was reasonable for Liberty Life to seek additional
supporting information, in the form of a functional capacity
60 The court notes that it is well-settled that in ERISA cases, an insurer (and a court upon de novo review) is not bound to rely on findings of the Social Security Administration regrading disability. See, e.g., Pari-Fasano v . ITT Hartford Life and Acc. Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000).
23 exam, about the disabling nature of Few’s multiple sclerosis.
Cf. id.
The court concludes, therefore, that the policy entitled
Liberty Life to terminate Few’s waiver of premium benefit. Few’s
benefit was conditioned on her agreement under the policy to
submit to reasonable requests for examinations. The court finds
that Liberty Life’s requests for the FCE and IPE in this instance
were reasonable. Liberty Life was justified, therefore, under
the terms of the policy to terminate her benefits given Few’s
complete refusal to cooperate.61
B . Proof of disability
Liberty Life also contends that it is entitled to summary
judgment because Few failed to submit the required proof of
continued disability. This court agrees.
It is well-settled that a claimant has the burden of
demonstrating disability within the terms of the plan. See,
e.g., Terry, 145 F.3d at 3 4 . The plain language of the policy
61 The court notes, without deciding, that its finding of reasonableness may have been different if Few had not flatly refused to provide any supporting information regarding MS from Dr. Sheremata. C f . Brigham, 317 F.3d at 85 (claimants have burden to substantiate new diagnosis); Giannone, 311 F. Supp.2d at 177 (insurer’s decision to terminate benefits based on failure to respond to repeated requests to bring medical information up to date deemed “perfectly understandable”).
24 stated that continued entitlement to the benefit was contingent
upon “annual submission of due proof of the continued existence
of total disability . . .” The court must thus inquire as to the
meaning of “due proof” and whether Few has provided such proof
within the meaning of the contract. See, e.g., Orndorf, 404 F.3d
at 519; Dickerson v . Prudential Life Ins. Corp. of America, 574
F. Supp.2d 239, 244 (D.Mass. 2008). The term “due proof” is
undefined, and thus courts look to its common meaning when
interpreting the contract language. See, e.g., Filiatrault v .
Comverse Technology, Inc., 275 F.3d 1 3 1 , 135 (1st Cir. 2001)
(“straightforward language in an ERISA-regulated plan should be
accorded its plain, ordinary, and natural meaning”). The term
“due” in this context is commonly understood to mean “capable of
satisfying a need, requirement, obligation, or duty: adequate,
sufficient.” See Webster’s New International Dictionary 699
(1993). Few, therefore, was required to submit sufficient proof
to demonstrate her entitlement to benefits and to substantiate
her continuing disability with updated medical information and
25 clinical information.62 See Brigham, 317 F.3d at 83-85
(paraplegic claimant required to substantiate entitlement).
As set forth above, the information in the record paints an
extremely contradictory picture of the extent of Few’s
disability.63 Few’s lengthy report of her physical limitations
and D r . Sheremata’s attending physician forms indicate that Few’s
capacity to function is severely limited by multiple sclerosis,
62 Of course, the court does not mean to imply that Few was required to provide information showing beyond any doubt that she was disabled; she was merely required to provide proof adequate to establish her entitlement to benefits. C f . Giannone, 311 F. Supp.2d at 177-79 (understandable for insurer to deny benefits without updated information, however, insurer was not justified after new information “overwhelmed” contrary data). 63 The focus of the court’s analysis at this juncture is the relatively updated information available in 2005. The policy clearly envisions that the benefit will be provided if total disability is ongoing. Thus, to the extent that the record contains medical evidence from the 1990's, the court finds that information to be of less assistance to its analysis.
Few, moreover, relies heavily on a determination by the Social Security Administration that she was due disability benefits. The court notes, however, that although determination of disability for purposes of entitlement to social security benefits may have some bearing on the issue of disability under an ERISA plan, this court is not bound by that determination. See Pari-Fasano, 230 F.3d at 419-20. Accordingly, the court notes that it has reviewed the form letter from the Social Security Administration summarizing Few’s entitlement to benefits, but does not accord significant weight to i t . See, e.g., Dickerson, 574 F. Supp.2d at 245.
26 memory loss and depression.64 D r . Amy’s report, however, calls
into question the multiple sclerosis diagnosis, and the extent of
Few’s mental and physical impairments.65 Moreover, a relatively
recent report completed by Few’s hematologist/oncologist
indicates that Few possessed only a “status 1” level of
impairment. Further, there is no record that Few currently was
receiving any psychiatric care or being actively treated for
depression (the basis for the initial finding of disability).
Simply put, Few’s resistance to turn over any updated medical
records, despite her claim to have been seeing multiple doctors,
leaves gaping evidentiary holes to support her subjective reports
of depression and severe physical limitations.
Although the court is convinced that Few suffers from
multiple and very real physical challenges, it cannot conclude
that Few has carried her burden, within the terms of the policy,
to substantiate her claim of total disability. This court is
simply unable to conclude, given Few’s reluctance to provide even
minimal clinical support for D r . Sheremata’s conclusions
64 particular, D r . Sheremata’s conclusions that Few has a In “Class 5” physical impairment (severely limited) and a “Class 4” mental impairment (markedly limited). 65 The court notes that D r . Millstein echoed many of D r . Amy’s conclusions, although this is not unexpected given the relative paucity of objective medical evidence in the record.
27 regarding her ongoing physical and emotional challenges, that she
provided due proof of total disability. C f . Brigham, 317 F.3d at
84 (noting that without information supporting unelaborated
doctor’s notes, a “reasonable factfinder” could determine
paraplegic was not totally disabled). It is true that the forms
provided by D r . Sheremata weigh in favor of disability, but
without the supporting clinical information that led to that new
diagnosis, it is difficult to overcome the contrary conclusions
drawn by D r . Amy, D r . Millstein, and Few’s own oncologist/
hematologist suggesting something less than total disability.
Although D r . Sheremata was Few’s treating physician, an insurer
is not required to blindly accept conclusory findings provided by
an insured’s physician. See Brigham, 317 F.3d at 8 4 ; c f . Cooper
v . Life Ins. C o . of North America, 486 F.3d 1 5 7 , 166-67 (6th Cir.
2007) (insurers, although not allowed to ignore treating
physician’s reports, are not obligated to blindly accept them
either) relying on Black & Decker Disability Plan v . Nord, 538 U.S. 8 2 2 , 834 (2003). 66
66 In fact, in the ERISA context, the Supreme Court has specifically rejected the “treating physician’s rule,” deciding that “courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician.” Black & Decker Disability Plan, 538 U.S. at 834; see, e.g., Bufonge v . Prudential Ins. C o . of America, 426 F.3d 2 0 , 27 (1st Cir. 2005).
28 Thus, faced with conflicting and incomplete supporting
documents from Few, this court is constrained to conclude, after
a de novo review of the record, that Few has not met her burden
under the policy. Liberty Life, therefore, was justified in
terminating her benefit and is entitled to summary judgment.67
IV. CONCLUSION
After a de novo review of the administrative record before
this court, the defendants’ motion for summary judgement
(document n o . 108) is granted. The clerk is directed to enter
judgment for the defendants and to close the case.
SO ORDERED.
Jose/ __ Laplante UniUp ed States District Judge
Dated: March 1 9 , 2009
cc: MS Few, w , pro se Guy P. Tully, Esq. Jeffrey Scott Brady, Esq.
67 The court notes, again, that it is not beyond peradventur that it would have reached a different conclusion: (1) if more clinical information had been provided to Liberty Life by Few, (2) that information was part of the existing administrative record, and (3) it was capable of review by this court.