Hobson v. Metro. Life Ins. Co.

Opinion

07-0364-cv Hobson v. Metro. Life Ins. Co.

1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term 2008 7 8 (Argued: October 30, 2008 Decided: July 29, 2009) 9 10 Docket No. 07-0364-cv 11 12 -----------------------------------------------------x 13 14 DEBORAH HOBSON, 15 16 Plaintiff-Appellant, 17 18 -- v. -- 19 20 METROPOLITAN LIFE INSURANCE COMPANY, 21 22 Defendant-Appellee. 23 24 -----------------------------------------------------x 25 26 B e f o r e : WALKER, B.D. PARKER, and RAGGI, Circuit Judges. 27

28 Plaintiff-Appellant Deborah Hobson appeals from an order of 29 the United States District Court for the Southern District of New 30 York (Alvin K. Hellerstein, Judge) dismissing her complaint 31 challenging the denial by her ERISA plan administrator, 32 Metropolitan Life Insurance Co., of her claim for long-term 33 disability benefits. Because we find that the plan administrator 34 acted within its discretion in denying Plaintiff-Appellant’s 35 claim, the district court’s judgment is AFFIRMED.

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1 JASON A. NEWFIELD,(Justin C. 2 Frankel, on the brief), Frankel & 3 Newfield, P.C., Garden City, N.Y., 4 for Plaintiff-Appellant. 5 6 ALLAN M. MARCUS, Lester Schwab Katz 7 & Dwyer, LLP, New York, N.Y., for 8 Defendant-Appellee. 9 10 11 12 JOHN M. WALKER, JR., Circuit Judge:

13 Plaintiff-Appellant Deborah Hobson (“Hobson”) is a member of 14 an employer-provided health care plan (the “Plan”) that is 15 governed by the provisions of the Employee Retirement Income 16 Security Act, 29 U.S.C. §§ 1001-1461 (“ERISA”), and for which 17 claims for benefits are administered by Defendant-Appellee 18 Metropolitan Life Insurance Co. (“MetLife”). Hobson brings this 19 appeal from an order of the United States District Court for the 20 Southern District of New York (Alvin K. Hellerstein, Judge) dated 21 December 12, 2006, granting summary judgment to MetLife, denying 22 Hobson’s cross-motion for summary judgment, and dismissing the 23 complaint. Hobson v. Metro. Life Ins. Co., No. 05 CV 7321, Tr. 24 at 29 (S.D.N.Y. Dec. 12, 2006). 25 Hobson alleges that MetLife’s conflict of interest as both 26 evaluator and payor of benefit claims influenced its decision to 27 deny her claim for benefits, requiring this court to review 28 MetLife’s determination de novo. She contends that, in any 29 event, MetLife’s decision was arbitrary and capricious because it 30 was not supported by substantial evidence. She also avers that 31 MetLife abused its discretion by not affording her a full and 32 fair review of her claim, as required by sections 404(a) and 503

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1 of ERISA, 29 U.S.C. §§ 1104, 1133. 2 Finding that Hobson failed to establish that MetLife was 3 influenced by its structural conflict of interest, we decline to 4 accord this factor any weight in our review of MetLife’s denial 5 of Hobson’s benefits claim for abuse of discretion. Because we 6 find that substantial evidence supported MetLife’s denial of 7 Hobson’s benefits claim, and that MetLife afforded her a full and 8 fair review of her claim, we conclude that the district court 9 properly determined that MetLife acted within its discretion as 10 plan administrator in denying the claim. We therefore affirm. 11 BACKGROUND 12 Hobson worked for KPMG, LLP (“KPMG”) from 1998 to February 13 12, 2001 as a tax technician, a sedentary position which involved 14 sitting at a work-space and using a computer. She challenges 15 MetLife’s denial of her claim for long-term disability (“LTD”) 16 benefits. 17 Hobson’s Health Insurance Plan 18 Under KPMG’s group health insurance policy with MetLife, 19 MetLife has the “discretionary authority” to interpret the Plan’s 20 terms and determine a claimant’s eligibility for, and entitlement 21 to, Plan benefits. An employee is eligible for LTD benefits 22 under the Plan beginning twenty-five weeks after becoming 23 “disabled.” The Plan considers the employee “disabled” (1) for 24 the next thirty-six months, if she cannot perform the “material 25 and substantial duties of [her] [o]wn [o]ccupation,” and (2)

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1 after this period, if she cannot perform “any job for which [she 2 is] qualified or . . . may become reasonably qualified . . . .” 3 Hobson’s Claims History 4 Initial Benefits Claim 5 After becoming disabled in February 2001, Hobson filed a 6 claim for short-term disability and LTD benefits under the Plan, 7 claiming that she was unable to work. Hobson allegedly suffers 8 from asthma, severe tremors, migraines, depression, ulcerative 9 colitis (“colitis”), ileostomy skin problems, seizures, thyroid 10 cancer, fibromyalgia, sleep apnea, severe fatigue, heaviness in 11 her arms and legs, herniated disks in her lower back and neck, 12 arthritis, and Dercum’s disease (“Dercum’s”). Hobson initially 13 submitted medical examination reports from three doctors. The 14 first, rheumatologist Dr. Sandra L. Sessoms, diagnosed Hobson 15 with fibromyaglia1--a disease impairing cognitive functioning-- 16 and opined that Hobson was unable to work. The second, 17 gastroenterologist Dr. D. Keith Fernandez, diagnosed Hobson with 18 colitis, which involves acute or chronic inflammation of the 19 tissue lining the gastrointestinal system, but stated that Hobson 20 could return to work on August 22, 2001. The third, neurologist

1 1 Fibromyalgia appears to be a controversial diagnosis, which some 2 physicians contend is a “non-disease,” because objective laboratory tests and 3 medical imaging studies cannot confirm the diagnosis. See Don L. Goldenberg, 4 Fibromyalgia: Why Such Controversy?, 54 Annals of the Rheumatic Diseases 3, 3 5 (1995), available at 6 http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1005499&blobtype=pdf 7 (“[C]ontroversy persists regarding criteria for diagnosis, potential 8 pathophysiology, and treatment. Some prominent rheumatologists . . . question 9 the very existence of fibromyalgia.”) (emphasis omitted); Alex Berenson, Drug 10 Approved. Is Disease Real?, N.Y. Times, Jan. 14, 2008, available at 11 http://www.nytimes.com/2008/01/14/health/14pain.html (“Fibromyalgia is a . . . 12 pain condition, whose very existence is questioned by some doctors.”).

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1 Dr. Randolph W. Evans, submitted a report indicating that Hobson 2 had mild lumbar spine abnormalities and no neurological 3 abnormalities, and expressing no opinion as to her ability to 4 work. 5 MetLife consulted an independent rheumatologist and internal 6 medicine specialist, Dr. Jefrey D. Lieberman, who opined that the 7 evidence Hobson submitted did not demonstrate that she suffered 8 from fibromyalgia or that she could not return to work. Dr. 9 Lieberman contacted Dr. Sessoms, who stated that she was no 10 longer treating Hobson and was not sure if Hobson currently was 11 being treated for fibromyalgia. MetLife approved Hobson’s claim 12 for short-term benefits, but on November 5, 2001, denied her 13 claim for LTD benefits. 14 Hobson appealed MetLife’s denial of her LTD benefits claim. 15 Hobson clarified that she continued to be a patient of Dr. 16 Sessoms and was about to undergo treatment for fibromyalgia. 17 Hobson also submitted an evaluation from Dr. Sessoms reiterating 18 her diagnosis that Hobson was unable to work, had limited 19 mobility, and suffered from various medical conditions, including 20 symptoms “consistent with fibromyalgia,” colitis, hypertension, 21 insomnia, lung disease, anemia, and depression. Hobson also 22 submitted another report from Dr. Fernandez, which indicated that 23 Hobson was being treated for colitis and that other medical 24 conditions made her “feel much worse.” 25 MetLife referred Hobson’s file to Dr. Joseph M. Nesta, an 26 independent physician specializing in internal medicine and

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1 gastroenterology, who concluded that Hobson’s colitis “appear[ed] 2 to be stable,” that her fibromyalgia was not disabling, and that 3 the MRIs of her spine, which showed only “mild” abnormalities, 4 did not indicate that she was unable to work. In March 2002, 5 MetLife upheld its denial of Hobson’s claim for LTD benefits. 6 LTD Benefits for Colitis, Rectal Bleeding, and Anemia 7 In August 2002, after Hobson submitted additional 8 information regarding her colitis, rectal bleeding, and anemia, 9 MetLife approved her LTD benefits claim. In April 2003, after 10 consulting a physician trained in internal and occupational 11 medicine, who reported that Hobson’s colitis and anemia were 12 under control, and that she could perform “most jobs as long as 13 there was ready access to a bathroom,” MetLife terminated 14 Hobson’s LTD benefits. 15 LTD Benefits for Colitis-Related Surgery 16 On June 13, 2003, after Hobson underwent two surgical 17 procedures relating to her colitis, MetLife reinstated her LTD 18 benefits. At the time, a MetLife nurse consultant disagreed with 19 the reinstatement and recommended that Hobson’s benefits be 20 discontinued because her colitis had been corrected by the 21 surgery, and her medical records did not indicate that she was 22 physically or psychologically impaired. 23 Hobson submitted a physician’s report indicating that she 24 had a yeast or fungal infection, and suffered from a “major 25 depressive disorder” whereby she was “unable to engage in 26 stress[ful] situations” or “interpersonal” interactions, and her

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1 “emotional and adaptive functioning ma[d]e [returning to work] 2 unfeasible.” MetLife’s nurse consultant concluded that “the 3 submitted medical findings do not document a significant severity 4 of condition or provide evidence of a functional impairment that 5 would preclude [Hobson] from performing the duties of her 6 sedentary job.” 7 On July 20, 2004, Dr. Nesta, the physician who reviewed 8 Hobson’s file upon her initial appeal, reevaluated her case and 9 again concluded that her alleged impairments did not preclude her 10 from working. On July 27, 2004, Hobson’s treating internist 11 responded to the reevaluation, stating that he “disagree[d] with 12 [MetLife’s] [r]eview due to insufficient data,” and expressing 13 concern about Hobson’s “possible systemic yeast infection.” In 14 August 2004, MetLife terminated Hobson’s LTD benefits for the 15 second time. 16 LTD Benefits for Thyroid Cancer Surgery 17 In September 2004, after Hobson underwent surgery to treat 18 thyroid cancer, MetLife reinstated her LTD benefits for “a closed 19 period of time,” until November 12, 2004. The physician who 20 performed the surgery recommended that Hobson return to work in 21 January 2005. MetLife informed Hobson that by this time, over 22 thirty-six months had passed from her initial claim for benefits, 23 meaning that in order to be “disabled” under the Plan, she was 24 required to show that she could not perform the duties of any job 25 “reasonably fitted by [her] education, training, and experience,” 26 and not only the duties of her actual occupation.

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1 LTD Benefits for Dercum’s 2 In appealing MetLife’s termination of her LTD benefits in 3 2004, Hobson enclosed an updated report from Dr. Sessoms, which 4 explained that Hobson had some difficulty standing, walking, and 5 sitting. Hobson also included a report from Dr. Paul Subrt, a 6 dermatologist, who diagnosed her with Dercum’s, which is a “rare, 7 chronic condition” whose symptoms include “painful adipose 8 tissue, extreme weakness and fatigability, chronic generalized 9 pain, fibromyalgia, epilepsy, cognitive dysfunction and 10 depression,” has no effective treatment, and “can lead to 11 lifelong debilitating disabilities.” 12 MetLife had two independent consultants review Hobson’s 13 file, both of whom concluded that none of Hobson’s alleged 14 impairments rendered her unable to work. The first, an 15 internist, explained that the Dercum’s diagnosis was not well- 16 documented or supported, and that Hobson had not been given a 17 treatment plan. The second, a neurologist and psychiatrist, 18 concluded that although Hobson had “a number of chronic medical 19 problems which are severe,” she appeared to be “functional” and 20 was “able to work without any difficulty” at her sedentary job. 21 In March 2005, MetLife upheld its denial of Hobson’s claim for 22 LTD benefits. 23 MetLife granted Hobson’s request for additional, 24 discretionary review of the claim denial and referred her file to 25 two more independent physicians. The first, a psychiatrist,

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1 explained that “[t]here [we]re no complete psychiatric 2 evaluations in the documentation or any complete mental status 3 examinations.” This consultant also determined that Hobson 4 “herself had submitted numerous letters [to MetLife which we]re . 5 . . very well written and contain[ed] no hints of any cognitive 6 impairment.” The second consultant, a dermatologist, opined that 7 the Dercum’s “diagnosis actually was made by Ms. Hobson, not by 8 her doctor,” and “found that she made it according to information 9 . . . on the Internet.” Dr. Subrt, the physician who authored 10 the brief, one-paragraph letter diagnosing Hobson with Dercum’s, 11 told MetLife’s consultant that he “d[id] not feel that Ms. Hobson 12 [wa]s disabled and d[id not] understand why she c[ould] not do 13 her job, which is sedentary.” The second consultant also 14 concluded that, aside from Hobson’s subjective reports of pain, 15 no objective finding confirmed that she was unable to work. On 16 May 5, 2005, MetLife informed Hobson that it upheld its denial of 17 her benefits claim and would not consider any further appeals, 18 because Hobson had “exhausted [her] administrative remedies under 19 the [P]lan.” 20 Hobson then submitted two letters to supplement her claim. 21 The first, authored by Dr. Subrt, explained that although he did 22 not “discern” any dermatologic disability, he was not qualified 23 to opine on whether she otherwise suffered disabilities. The 24 second, a letter from her treating psychologist, stated that 25 Hobson’s depression had since worsened to the point of “severe

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1 despondent episodes” of “sufficient severity that [she wa]s 2 unable to function consistently enough to sustain employment.” 3 In letters dated May 11 and 19, 2005, MetLife informed Hobson 4 that her additional submissions had not persuaded it to 5 reconsider the denial of her benefits claim. 6 The ERISA Action 7 On August 18, 2005, Hobson responded to Metlife’s denial of 8 her administrative appeals by instituting this action. Her 9 complaint alleges that MetLife was influenced by its conflict of 10 interest as both the evaluator and payor of benefit claims, 11 warranting de novo review, and that, in any event, it abused its 12 discretion in denying her claim for LTD benefits. The parties 13 then filed cross-motions for summary judgment. 14 On December 12, 2006, the district court granted MetLife’s 15 motion and denied Hobson’s, concluding that MetLife did not act 16 arbitrarily and capriciously in denying Hobson’s claim for 17 benefits, because, inter alia, MetLife “reasonably took up each 18 and every aspect of the claim. . . .” Hobson, No. 05 CV 7321, 19 Tr. at 28. 20 This appeal followed. 21 Discussion 22 I. Standard of Review 23 In an ERISA action, we review the district court’s grant of 24 summary judgment based on the administrative record de novo and 25 apply the same legal standard as the district court. Pagan v.

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1 NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995). “Summary 2 judgment is appropriate only where the parties’ submissions show 3 that there is no genuine issue as to any material fact and the 4 moving party is entitled to judgment as a matter of law.” Fay v. 5 Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002). 6 Although generally an administrator’s decision to deny 7 benefits is reviewed de novo, where, as here, “written plan 8 documents confer upon a plan administrator the discretionary 9 authority to determine eligibility, we will not disturb the 10 administrator’s ultimate conclusion unless it is ‘arbitrary and 11 capricious.’” Pagan, 52 F.3d at 441. After the Supreme Court 12 rendered its decision in Metropolitan Life Insurance Co. v. 13 Glenn, -- U.S.--, 128 S. Ct. 2343 (2008), this court explained 14 that “a plan under which an administrator both evaluates and pays 15 benefits claims creates the kind of conflict of interest that 16 courts must take into account and weigh as a factor in 17 determining whether there was an abuse of discretion, but does 18 not make de novo review appropriate.” McCauley v. First Unum 19 Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008). A plaintiff’s 20 showing that the administrator’s conflict of interest affected 21 the choice of a reasonable interpretation is only one of “several 22 different considerations” that judges must take into account when 23 “review[ing] the lawfulness of benefit denials.” Id. (internal 24 quotation marks omitted).

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1 In light of this, we find unpersuasive Hobson’s assertion 2 that de novo review is warranted on the basis of MetLife’s 3 structural conflict of interest. We now turn to the question of 4 whether the district court erred in weighing MetLife’s conflict 5 of interest. 6 Hobson alleges that the district court failed to take into 7 account two documents in the record which show that MetLife was 8 influenced by its conflict of interest. The district court 9 properly explained that it “must defer to the administrator’s 10 decision unless the decision is arbitrary and capricious,” and 11 that “the deference to be given to the administrator doesn’t 12 change unless the plaintiff shows that the administrator was, in 13 fact, influenced by the conflict of interest.” Hobson, No. 05 CV 14 7321, Tr. at 4-5. The district court, however, failed to (1) 15 discuss the evidence allegedly showing that MetLife’s conflict of 16 interest influenced its decision-making, (2) determine what role 17 MetLife’s conflict of interest may have played in its decision, 18 and (3) give that conflict any weight, as required by Glenn. See 19 128 S. Ct. at 2351; see also McCauley, 551 F.3d at 133. 20 The first document is a September 14, 2004 email from one 21 KPMG employee to another stating that MetLife “is requesting a 22 very detailed job description” for Hobson and “is trying to cover 23 all basis [sic] for denying the LTD claim.” The email suggests 24 that a third-party, who was not employed by Metlife, believed 25 that MetLife might be motivated by a desire to deny Hobson’s

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1 claim. This suggestion, however, is belied by MetLife’s decision 2 to reinstate Hobson’s benefits six days later, after Hobson 3 informed MetLife that she had undergone surgery for thyroid 4 cancer. 5 The second document is a November 2002 “diary note” in 6 Hobson’s file in which a MetLife nurse recommended that the case 7 manager procure “updated medical” information and a “referral” to 8 other medical experts, because colitis “is a wax and wane type of 9 illness/disease,” and Hobson “would most likely not be found to 10 be T[otally] D[isabled] from any [occupation] . . . .” Rather 11 than indicating that MetLife was influenced by its conflict of 12 interest, this note simply reflects the reviewing nurse’s 13 reasonable doubts as to whether Hobson’s condition would continue 14 to render her disabled, in light of a letter from the year in 15 which Hobson’s own reviewing physician indicated that Hobson’s 16 colitis was temporary and that she would be able to return to 17 work. 18 We are not persuaded that these documents show that 19 MetLife’s conflict of interest as evaluator and payor of benefits 20 influenced its reasonable interpretation of Hobson’s claim for 21 benefits. Thus, we decline to afford MetLife’s conflict of 22 interest any weight in our review of MetLife’s benefit denial. 23 II. Substantial Evidence Supporting MetLife’s Determination 24 Under the arbitrary and capricious standard of review, we 25 may overturn an administrator’s decision to deny ERISA benefits

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1 “only if it was without reason, unsupported by substantial 2 evidence or erroneous as a matter of law. This scope of review 3 is narrow[;] thus[,] we are not free to substitute our own 4 judgment for that of [the insurer] as if we were considering the 5 issue of eligibility anew.” Pagan, 52 F.3d at 442 (internal 6 quotation marks and citations omitted). 7 Hobson contends that MetLife’s decision is not supported by 8 substantial evidence because MetLife relied on its paid medical 9 reviewers’ “speculative inferences,” despite “the reliable 10 evidence of Hobson’s doctors,” and specifically relied upon Dr. 11 Nesta’s report, even though he “failed to consider fibromyalgia 12 in his review” and only presented “opinions [that] were at best 13 ‘generic.’” 14 After August 2004, MetLife took five actions, each of which 15 had the effect of disallowing Hobson's claim for LTD benefits: 16 (A) the August 2004 termination of benefits after she recovered 17 from colitis-related surgery; (B) the December 2004 termination 18 after she recovered from thyroid cancer surgery; (C) the March 19 2005 denial of Hobson's first appeal after the thirty-six month 20 period had passed; (D) the May 5, 2005 denial of benefits after 21 additional review; and (E) the May 19, 2005 refusal to consider 22 further appeals despite two letters Hobson submitted from

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1 attending physicians.2 We evaluate each of these actions in 2 turn. 3 A. August 2004 Termination of LTD Benefits After Recovery 4 from Colitis-Related Surgery 5 First, we conclude that MetLife’s termination of Hobson’s 6 LTD benefits after she underwent surgery to address her colitis 7 was not arbitrary and capricious. 8 The report prepared in 2004 by Dr. Nesta, the independent 9 physician consulted by MetLife, concluded that Hobson’s alleged 10 impairments did not preclude her from working. Specifically, Dr. 11 Nesta determined that Hobson’s surgery “should have cured her 12 ulcerative colitis,” the MRI and her neurologist’s progress notes 13 indicated that she did not have “significant radiculopathy,” and 14 her neurologist’s decision to not take Hobson out of work 15 indicated that he “could not find any neurologic basis for 16 [Hobson’s] seizures and migraines.” As for Hobson’s asthma, 17 fungal infection, and fibromyalgia, Dr. Nesta determined that 18 these conditions were not disabling. 19 Hobson’s own infectious disease specialist agreed that her 20 fungal infection did not prevent her from working. Although her 21 treating internist “d[id] not agree that most of her ailments do 22 not preclude her from working” because he was concerned about her

1 2 Because Hobson’s appeal focuses only on MetLife’s decision to terminate 2 her LTD benefits in August 2004 and subsequent decisions not to reinstate 3 benefits, we review only these determinations. Therefore, we do not examine 4 MetLife’s earlier decisions to deny Hobson’s initial benefits claim in 5 November 2001 and her first appeal in March 2002, or to terminate her LTD 6 benefits after her symptoms of colitis and anemia improved in April 2003.

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1 yeast infection, he did not submit additional information to 2 support Hobson’s claim for benefits. In fact, he conceded that 3 there was “insufficient data” to determine her ability to work. 4 Hobson specifically challenges on appeal MetLife’s reliance 5 on Dr. Nesta’s 2004 report because Metlife “failed to consider 6 fibromyalgia in his review.” Upon evaluating Hobson’s “final 7 diagnosis of fibromyalgia,” Dr. Nesta’s report again concluded 8 that fibromyalgia “does not usually preclude an individual from 9 working.” Two years earlier, however, Dr. Nesta explained why he 10 concluded that Hobson was not disabled due to her fibromyalgia: 11 Hobson had no “documented trigger point tenderness” which is 12 normally part of a fibromyalgia diagnosis, no “hard evidence . . 13 . substantiate[d] her disability from a rheumatologic viewpoint,” 14 and her neurological examinations were “normal.” Moreover, Dr. 15 Lieberman, another independent consultant who evaluated Hobson’s 16 record in 2001, opined that there wasn’t “any substantial global 17 or objective evidence to support” the opinion that Hobson was 18 “unable to perform any occupation because of her fibromyalgia;” 19 instead, Dr. Lieberman stated that “[t]here certainly are a wide 20 range of treatments available for patients with fibromyalgia to 21 allow them to be more productive, gainfully employed, and have a 22 better quality of life.” 23 As the Supreme Court has explained, “courts have no warrant 24 to require administrators automatically to accord special weight 25 to the opinions of a claimant’s physician; nor may courts impose

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1 on plan administrators a discrete burden of explanation when they 2 credit reliable evidence that conflicts with a treating 3 physician’s evaluation.” Black & Decker Disability Plan v. Nord, 4 538 U.S. 822, 834 (2003). Thus, MetLife acted within its 5 discretion in relying upon the conclusions of its independent 6 consultants’ three reports. Because the three reports provided 7 detailed, substantive analysis of Hobson’s fibromyalgia, we 8 cannot find that MetLife unreasonably failed to consider Hobson’s 9 fibromyalgia. 10 As Hobson’s own treating physician conceded, it is far from 11 clear that Hobson’s medical records demonstrated that she was 12 disabled; rather, we find ample evidence in Hobson’s file to 13 support MetLife’s determination that she failed to make this 14 showing. 15 B. December 2004 Termination After Thyroid Cancer Surgery 16 In December 2004, after reinstating Hobson’s LTD benefits 17 when she underwent surgery for thyroid cancer, MetLife terminated 18 her benefits. Metlife reasonably concluded that Hobson was not 19 disabled, given that the same physician who operated on Hobson’s 20 thyroid cancer also recommended that she return to work in 21 January 2005. Thus, the record substantially supports MetLife’s 22 termination of her LTD benefits, a decision we do not find 23 arbitrary and capricious. 24 C. March 2005 Denial of Initial Appeal After Thirty-Six 25 Month Period

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1 In appealing the denial of her benefits claim, Hobson 2 submitted a report from Dr. Subrt diagnosing her with Dercum’s 3 and an updated evaluation from Dr. Sessoms explaining that 4 Hobson’s symptoms included several chronic medical conditions. 5 Substantial evidence in the record supports MetLife’s 6 determination that Hobson was not disabled due to Dercum’s. As 7 the first consultant, internist Dr. Blair D. Truxal, explained, 8 Dr. Subrt’s letter consisted only of “one brief paragraph,” which 9 Hobson supplemented with “fourteen pages of information on 10 [Dercum’s] disease . . . researched from the Internet.” Dr. 11 Truxal concluded that “no diagnostic criteria or physical 12 findings” supported the diagnosis. In fact, he pointed to four 13 diagnostic criteria that Hobson lacked. Finally, Dr. Truxal 14 explained that Hobson’s records did not specify which of the 15 three types of Dercum’s she allegedly had, or mention any 16 treatment plan for the disease. 17 MetLife’s additional determination that none of Hobson’s 18 other alleged ailments precluded her from work was not 19 unreasonable. The second consultant, neurologist and 20 psychiatrist Dr. John F. Delaney, Jr. opined that, although 21 Hobson had “a number of chronic medical conditions which are 22 severe,” she remained “functional” and was “able to work without 23 any difficulty” at her sedentary job. Because MetLife was 24 entitled to rely on these written reports, Black & Decker, 538

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1 U.S. at 834, its denial of Hobson's claim was neither arbitrary 2 nor capricious. 3 D. May 2008 Denial After Additional Review of Dercum’s 4 Diagnosis 5 Upon granting Hobson’s request for additional review of the 6 denial of her LTD benefits claim, MetLife referred Hobson’s file 7 to two additional physicians. Both reports support MetLife’s 8 decision to uphold its benefit denial. 9 The first report from a psychiatrist concluded that Hobson 10 was not cognitively impaired because she had not submitted any 11 complete psychiatric or mental status examination supporting her 12 claim, and seemed able to communicate cogently in writing with 13 MetLife. 14 The second report provided additional support for MetLife’s 15 determination that Hobson was not disabled due to Dercum’s. The 16 consultant, a dermatologist, opined that Hobson herself, rather 17 than a doctor, had diagnosed herself with Dercum’s, and that no 18 objective evidence accompanied her subjective reports of pain to 19 demonstrate that she was disabled. 20 Hobson’s own physician, Dr. Subrt, who wrote the letter 21 stating his belief that she had Dercum’s, conceded that he “d[id] 22 not feel that Ms. Hobson [wa]s disabled and d[id not] understand 23 why she cannot do her job, which is sedentary.” Because Hobson’s 24 treating physician and two independent consultants all opined 25 that Hobson was not disabled from working, we find that MetLife’s

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1 decision to uphold its denial of her claim for benefits fell 2 squarely within its discretion. 3 E. May 2005 Refusal to Consider Further Appeals 4 Both of the letters Hobson submitted after MetLife informed 5 her that it would not consider any further appeals failed to 6 provide additional, objective evidence that she was disabled. 7 The first letter from Dr. Subrt merely clarified that he was 8 not qualified to opine on whether she suffered non-dermatologic 9 disabilities, and explained that he did not “discern” any 10 dermatologic disability. The second letter from Hobson’s 11 psychologist stated that Hobson was unable to function or work 12 due to her depression, but did not include or append any evidence 13 substantiating this conclusion. 14 In light of the substantial evidence in Hobson’s file 15 supporting MetLife’s determination that she was not disabled from 16 sedentary work, we find that MetLife did not abuse its discretion 17 in May 2005 by refusing to consider Hobson’s request for a 18 further appeal. 19 III. MetLife’s Full and Fair Review of Hobson’s Claim 20 Section 503(2) of ERISA requires that claims for benefits be 21 afforded a “full and fair review by the appropriate named 22 fiduciary of the decision denying the claim.” 29 U.S.C. § 23 1133(2). The district court concluded that MetLife afforded 24 Hobson such a review by “reasonably t[aking] up each and every 25 aspect of the claim.” Hobson, No. 05 CV 7321, Tr. at 28.

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1 Hobson alleges that MetLife failed to fully and fairly 2 review her benefits claim by (A) not notifying her of what 3 additional information she needed to “perfect her claim”; (B) 4 requiring objective support for her medical conditions; (C) 5 failing to consider all the medical evidence she submitted; (D) 6 giving undue weight to the opinions of MetLife’s consultants over 7 those of Hobson’s treating physicians; (E) failing to request an 8 independent medical examination, as provided for in its own 9 policy; and (F) not considering the Social Security 10 Administration’s (“SSA”) finding of disability for the same 11 medical conditions for which she requested LTD benefits from 12 MetLife. We review each argument in turn and find each to be 13 without merit. 14 A. ERISA Notice Requirement 15 Section 503(1) of ERISA contains a general requirement 16 whereby, upon denying a claim for benefits, a plan administrator 17 must provide the claimant with “adequate notice in writing . . . 18 setting forth the specific reasons for such denial, written in a 19 manner calculated to be understood by the participant.” 29 20 U.S.C. § 1133(1). ERISA regulations further require that the 21 administrator furnish the claimant with a “description of any 22 additional material or information necessary for the claimant to 23 perfect the claim and an explanation of why such material or 24 information is necessary . . . .” 29 C.F.R. § 25 2560.503-1(g)(1)(iii). As we have explained, the purpose of

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1 ERISA’s notice requirement is to “provide claimants with enough 2 information to prepare adequately for further administrative 3 review or an appeal to the federal courts.” Juliano v. Health 4 Maint. Org. of NJ, 221 F.3d 279, 287 (2d Cir. 2000) (internal 5 quotation marks omitted). 6 In past cases--including the two cited by Hobson--in which 7 courts found that plan administrators failed to substantially 8 comply with the ERISA notice requirement by not notifying 9 claimants of information necessary to perfect their claims, the 10 administrators also failed to explain the specific reasons for 11 the benefit denial. See, e.g., Schleibaum v. Kmart Corp., 153 12 F.3d 496, 499 (7th Cir. 1998); Halpin v. W.W. Grainger, Inc., 962 13 F.2d 685, 694 (7th Cir. 1992); Dzidzovic v. Bldg. Serv. 32B-J 14 Health Fund, No. 02 CV 6140, 2006 WL 2266501, at *8, 11 (S.D.N.Y. 15 Aug. 7, 2006); Dawes v. First Unum Life Ins. Co., No. 91 Civ. 16 0103, 1992 WL 350778, at *3-5 (S.D.N.Y. Nov. 13, 1992). 17 There is no question that MetLife communicated to Hobson its 18 specific reasons for denying her LTD benefits. After Hobson 19 alleged that she suffered from several conditions including 20 debilitating depression, seizures, and Dercum’s, MetLife’s March 21 2005 letter explained why it concluded that she “seem[s] to be 22 functional.” In terms of her depression, the letter stated that 23 what is “lacking is whether the depression would be severe enough 24 to actually have suicidal ideation or whether this depression 25 requires inpatient hospitalization.” As for her seizures, the

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1 letter stated that “what was lacking from [her] file” was 2 “whether [she was] having ongoing seizures that are not well 3 controlled and prevent [her] from driving or getting around.” As 4 for her Dercum’s diagnosis, MetLife explained that Hobson’s 5 records lacked evidence that she exhibited four diagnostic 6 criteria for Dercum’s, and that “there was no mention in the 7 records of what type [of Dercum’s she] allegedly ha[s]” or “a 8 treatment plan for th[e] disease.” The letter further stated 9 that Hobson’s colitis and thyroid cancer appeared to be cured by 10 the surgical procedures she underwent, and that her medical 11 records did not demonstrate that she was disabled due to spinal 12 degenerative disease or debilitating migraines. 13 It is noteworthy that after Hobson’s initial claim for 14 benefits was denied in November 2001 and she submitted additional 15 medical information, MetLife granted Hobson LTD benefits on three 16 separate occasions, thereby reflecting that MetLife “reasonably 17 took up each and every aspect” of Hobson’s claims. Juliano, 221 18 F.3d at 287. Finally, Hobson’s ability to perfect her claim 19 three times supports our conclusion that she was fairly apprised 20 of how she could “prepare adequately” for subsequent appeals of 21 earlier benefit denials. Id. Therefore, we are persuaded that 22 MetLife substantially complied with ERISA’s notice regulations. 23 B. Requirement of Objective Medical Evidence 24 Hobson alleges that MetLife failed to afford her full and 25 fair review of her LTD benefits claim by requiring “objective

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1 support for her medical conditions,” because MetLife's own policy 2 does not require such proof, and because this court has clarified 3 that subjective complaints alone may constitute sufficient 4 evidence of disability. See Connors v. Conn. Gen. Life Ins. Co., 5 272 F.3d 127, 136 (2d Cir. 2001) (“It has long been the law of 6 this Circuit that the subjective element of pain is an important 7 factor to be considered in determining disability.”) (internal 8 quotation marks omitted). 9 This court has never directly addressed whether it is 10 reasonable for a plan administrator, who retains the 11 discretionary authority to interpret the terms of its plan, to 12 require the plaintiff to produce objective medical evidence, 13 where such a requirement is not expressly set out in the plan. 14 However, “several courts in this district have found that it is 15 not unreasonable or arbitrary for a plan administrator to require 16 the plaintiff to produce objective medical evidence of total 17 disability in a claim for disability benefits.” Fitzpatrick v. 18 Bayer Corp., No. 04 Civ. 5134, 2008 WL 169318, at *10 (S.D.N.Y. 19 Jan. 17, 2008); see also Suren v. Metro. Life Ins. Co., No. 07- 20 CV-4439, 2008 WL 4104461, at *11 (E.D.N.Y. Aug. 29, 2008) 21 (collecting cases and concluding that “MetLife did not abuse its 22 discretion when it based its opinion on objective tests and 23 examinations, despite Suren’s subjective complaints of fatigue 24 and weakness”). 25 We conclude that it is not unreasonable for ERISA plan

25

1 administrators to accord weight to objective evidence that a 2 claimant’s medical ailments are debilitating in order to guard 3 against fraudulent or unsupported claims of disability. As the 4 Eighth Circuit has explained, even in a claim involving 5 fibromyalgia, “trigger-point findings . . . constitute objective 6 evidence of the disease,” and it is not unreasonable for a plan 7 administrator to require such evidence so long as the claimant 8 was so notified. Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 9 813-14 (8th Cir. 2006). When MetLife denied Hobson’s initial 10 appeal in March 2002, it informed her that “there has been no 11 documentation . . . that substantiates documented trigger point 12 tenderness that falls within the major criteria for the diagnosis 13 of fibromyalgia.” In light of this notification, MetLife acted 14 within its discretion in requiring some objective evidence that 15 Hobson was disabled from performing in a sedentary capacity. 16 Such a requirement is not contradicted by any provision of 17 MetLife’s own policy, which provides that an employee’s claim may 18 be denied if she cannot “obtain sufficient medical evidence to 19 support” her disability claim. By the terms of the Plan, MetLife 20 retains the discretion to interpret what constitutes “sufficient 21 medical evidence,” and MetLife’s determination that such evidence 22 requires objective support, rather than merely subjective reports 23 of pain, is reasonable. In this case, MetLife’s conclusion that 24 Hobson's subjective pain did not rise to the level of rendering 25 her unable to work was supported by Dr. Subrt, the very doctor

26

1 who diagnosed Hobson with Dercum’s, and who reached the same 2 conclusion. Thus, we decline to hold that MetLife’s decision to 3 deny Hobson’s claim for benefits, because she failed to provide 4 objective evidence showing that she was disabled from sedentary 5 work deprived her of full and fair review. 6 C. Consideration of All Medical Evidence 7 Hobson also alleges that MetLife did not properly consider 8 all of her medical evidence, ignoring her non-physical ailments 9 and co-morbid conditions, the impact of her medications, and her 10 subjective complaints of pain. We have already rejected Hobson’s 11 allegation that MetLife ignored her subjective complaints in the 12 prior section. We now turn to the remaining evidence which 13 Hobson alleges that MetLife arbitrarily and capriciously ignored. 14 There is no merit to Hobson’s contentions that MetLife 15 “intentionally ignored” evidence that she was disabled due to 16 non-physical ailments and co-morbid conditions, that is, 17 conditions that pertain to two or more disorders simultaneously-- 18 here, fatigue, inability to concentrate, cognitive functioning, 19 and memory loss--and that MetLife should have evaluated such 20 evidence together, rather than in isolation. MetLife had two 21 independent psychiatrist consultants evaluate Hobson's file. The 22 first concluded that Hobson's “psychiatric and cognitive 23 functioning [wa]s essentially within normal limits,” that there 24 were no “objective findings of any cognitive impairment or 25 problems with memory or cognition,” and that her own

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1 correspondences indicated that her non-physical ailments did not 2 impair her ability to function. The second explained that 3 Hobson’s depression did not render her unable to perform her 4 duties, as MetLife mentioned in its March 2005 letter to Hobson. 5 Thus, MetLife expressly considered Hobson’s non-physical ailments 6 and co-morbid conditions, and the two consultant reports that 7 Metlife relied upon substantially supported MetLife’s denial of 8 Hobson’s claim for LTD benefits. See Suren, 2008 WL 4104461, at 9 *11 (finding that benefit denial was not arbitrary and capricious 10 where independent physicians determined that claimant was not 11 cognitively impaired). 12 We are also not persuaded that MetLife abused its discretion 13 by not taking into consideration the side effects Hobson 14 allegedly suffered due to the daily medications she took to 15 address her conditions. Hobson’s brief failed to elaborate on 16 this argument: Specifically, she failed to explain how exactly 17 she had established to Metlife that her medications rendered her 18 unable to work. For example, Hobson could have provided, but did 19 not in fact provide, letters from her treating physicians opining 20 that her medications hindered her functional abilities. As the 21 Tenth Circuit explained in rejecting a similar claim, “the 22 question for this court is not whether MetLife made the ‘correct’ 23 decision [but] whether MetLife had a reasonable basis for the 24 decision that it made.” Chalker v. Raytheon Co., 291 F. App’x 25 138, 145 (10th Cir. 2008). Here, MetLife reasonably concluded

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1 that Hobson remained able to work, relying on the opinions of 2 seven independent consultants, one of whom expressly stated that 3 Hobson “ha[d] been on medications for a considerable period of 4 time, and these medications d[id] not give her side effects, 5 according to the medical records reviewed,” and another who 6 explained that Hobson appeared cognitively functional, as 7 indicated by her detailed and cogent communications with MetLife. 8 In light of these evaluations, MetLife reasonably concluded that 9 Hobson remained able to function despite taking various 10 medications to treat her medical ailments. 11 D. Weighing of Competing Medical Evaluations 12 Hobson also contends that MetLife gave undue weight to the 13 opinions of the independent physicians it consulted, first by 14 retaining those consultants, and then by affording more weight to 15 those consultants’ opinions than to those of Hobson’s treating 16 physicians. We find no merit to Hobson’s argument. 17 MetLife had a total of seven independent physicians, none of 18 whom was a MetLife employee, and all of whom were Board-certified 19 in one or more of the specialty areas relevant to Hobson’s 20 diagnoses and conditions, review Hobson’s file. MetLife did not 21 abuse its discretion by considering these trained physicians’ 22 opinions solely because they were selected, and presumably 23 compensated, by Metlife. See Suren, 2008 WL 4104461, at *11 24 (“That they were paid consultants does not disable MetLife from 25 considering their opinions in making benefits decisions.”).

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1 Indeed, it is customary for plan administrators to do so in 2 evaluating ERISA claims. Second, MetLife is not required to 3 accord the opinions of a claimant’s treating physicians “special 4 weight,” especially in light of contrary independent physician 5 reports. Black & Decker, 538 U.S. at 834. 6 Moreover, nothing in the record indicates that MetLife 7 arbitrarily refused to credit Hobson’s medical evidence. 8 MetLife’s consultants repeatedly attempted to contact Hobson’s 9 treating physicians, several of whom concluded that Hobson’s 10 diagnoses and conditions did not inhibit her from working. 11 Hobson specifically challenges MetLife’s reliance on its 12 independent physicians’ reports in determining that she was not 13 disabled due to Dercum’s, which these physicians characterized as 14 a rare affliction which “nobody is sure about.” However, as we 15 have already noted, Hobson’s own treating physician, the same one 16 who sent a letter diagnosing Hobson with Dercum’s, concluded that 17 she was not disabled due to Dercum’s. Thus, there is no merit to 18 Hobson’s argument that MetLife unreasonably relied upon 19 speculative and “unqualified” physicians’ opinions. 20 E. MetLife’s Decision Not to Request an Independent 21 Examination 22 MetLife declined to order an in-person, independent medical 23 examination (“IME”), as provided for in the Plan. In challenging 24 MetLife’s decision as arbitrary and capricious, Hobson relies on 25 Chan v. Hartford Life Ins. Co., No. 02 Civ. 2943, 2004 WL 2002988

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1 (S.D.N.Y. Sept. 8, 2004), in which the district court found that 2 the plan administrator’s failure to order an IME “call[ed] into 3 question its decision to terminate [claimant]’s benefits.” Id. 4 at *9. As in Chan, MetLife’s benefits policy permits MetLife to 5 order an in-person IME, indicating that such an evaluation is 6 valuable in certain situations. 7 The six listed situations include the following three: 8 “[c]larification when the stated diagnosis is not usually 9 disabling,” “[t]he stated diagnosis is vague and supported only 10 by subjective information,” and “[t]here are inconsistencies in 11 the medical evidence or conflicting opinions from various medical 12 examinations (i.e. . . . the [SSA]).” These factors, which 13 comprise half of the enumerated factors, are present in Hobson’s 14 case. 15 Consistent with its policy, MetLife could have ordered an 16 IME because it explained to Hobson that her neurologic, 17 gastroenterologic, and psychiatric conditions did not render her 18 unable to perform a sedentary position, and because Hobson’s 19 claim was rejected due to her failure to provide objective 20 evidence of the ailments she subjectively reported. Also, there 21 were conflicting determinations as to whether Hobson’s 22 fibromyalgia was disabling, and Hobson was awarded social 23 security disability benefits based on the same medical reports 24 submitted to MetLife. 25 However, as the four circuits that have addressed the

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1 question have concluded, where the ERISA plan administrator 2 retains the discretion to interpret the terms of its plan, the 3 administrator may elect not to conduct an IME, particularly where 4 the claimant’s medical evidence on its face fails to establish 5 that she is disabled.3 6 We share the Seventh Circuit’s concern that requiring the 7 plan administrator to order an IME, despite the absence of 8 objective evidence supporting the applicant’s claim for benefits, 9 risks casting doubt upon, and inhibiting, “the commonplace 10 practice of doctors arriving at professional opinions after 11 reviewing medical files,” which reduces the “financial burden of 12 conducting repetitive tests and examinations.” Davis v. Unum 13 Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir. 2006). 14 As in past sister circuit cases finding that a plan 15 administrator need not order an IME, here, Hobson failed to 16 produce sufficient objective evidence supporting her benefits 17 claim. Moreover, several of her own treating physicians opined

3 1 See, e.g., Williams v. Aetna Life Ins. Co. of Boston, 509 F.3d 317, 325 2 (7th Cir. 2007) (finding reasonable a denial of benefits where the 3 administrator refused to order an independent review and there was a lack of 4 “objective support” regarding the claimant’s “functional abilities”); Rutledge 5 v. Liberty Life Assurance Co., 481 F.3d 655, 661 (8th Cir. 2007) (“An ERISA 6 plan administrator need not order an [IME] when the insured’s evidence 7 supporting a disability claim is facially insufficient.”); Calvert v. Firstar 8 Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005) (“Although th[e plan] provision 9 allows Liberty to commission a physical examination of a claimant, there is 10 nothing in the plan language that expressly bars a file review by a physician 11 in lieu of such a physical exam.”) (emphasis in original); Nicula v. First 12 Unum Life Ins. Co., 23 F. App’x 805, 807 (9th Cir. 2001) (finding no need for 13 a physical exam where no “conflicting medical evidence” rebutted the treating 14 physician’s report). See also Fought v. Unum Life Ins. Co. of Am., 379 F.3d 15 997, 1015 (10th Cir. 2004) (denying an IME where the plan administrator was 16 unable to offer “more than a scintilla” of evidence that claimant was not 17 disabled under the plan) (internal quotation marks omitted).

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1 that she was able to return to work, thereby significantly 2 undermining her benefits claim. Finally, the Plan’s guidelines 3 only list situations in which IMEs may be “valuable,” not where 4 they are necessary. Because this court only disturbs a plan 5 administrator’s determination if it is arbitrary and capricious, 6 we are unconvinced that the Plan obliged MetLife to conduct an 7 IME; rather, by not ordering such an examination, MetLife simply 8 exercised its discretion to decline to pursue one option at its 9 disposal. 10 F. Consideration of the SSA’s Finding of Disability 11 MetLife required Hobson to apply for social security 12 disability benefits, and in May 2003, the SSA awarded Hobson such 13 benefits on the basis that she suffered from colitis and 14 fibromyalgia. Hobson alleges that both the district court and 15 MetLife failed to consider her social security disability 16 benefits award in making their LTD determinations. 17 Where the administrator “requires a claimant to pursue 18 social security disability to reduce the amount of benefits due 19 under the plan,” Leffew v. Ford Motor Co., 258 F. App’x 772, 778 20 -779 (6th Cir. 2007), and subsequently determines that the 21 claimant is not entitled to ERISA benefits, the Sixth Circuit has 22 “counsel[led] a certain skepticism of a plan administrator’s 23 decision-making,” Calvert, 409 F.3d at 295; see also Leffew, 258 24 F. App’x at 779. Although the SSA’s definition of the term 25 “disability” is not necessarily coextensive with an ERISA plan’s

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1 definition of that term, see Kunstenaar v. Conn. Gen. Life Ins. 2 Co., 902 F.2d 181, 184 (2d Cir. 1990), the Sixth Circuit 3 nevertheless considers an award of social security disability 4 benefits to be a relevant factor in determining whether a 5 claimant is disabled under an ERISA plan, see Calvert, 409 F.3d 6 at 295. 7 Here, it does not appear that either MetLife or the district 8 court considered the SSA’s conclusion that Hobson was disabled, 9 as that term is defined by the SSA; neither MetLife’s letters 10 denying Hobson’s claim for LTD benefits nor the district court’s 11 decision discuss that conclusion. Still, between the time that 12 Hobson submitted the diagnoses upon which the SSA awarded her 13 disability benefits and August 2004, when MetLife sent her its 14 next letter terminating her LTD ERISA benefits, she had undergone 15 surgery for her colitis. MetLife terminated Hobson’s benefits on 16 the basis that she had successfully recovered from this surgery; 17 thus, the SSA’s determination as to her pre-surgical condition 18 was no longer relevant when Metlife denied her benefits claim. 19 Compare with Ladd v. ITT Corp., 148 F.3d 753, 755-56 (7th Cir. 20 1998) (determining that the claim denial was “irrational” where 21 the claimant’s medical condition worsened after the SSA awarded 22 her benefits but before the plan administrator denied her ERISA 23 benefits). 24 As for Hobson’s fibromyalgia diagnosis, substantial evidence 25 supported MetLife’s determination that the condition did not

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1 render her disabled, as explained above. Supra Part II.A; see 2 also Suren, 2008 WL 4104461, at *10 (“In light of all the medical 3 evidence in the record, . . . [the court] cannot responsibly find 4 [the administrator’s] decision to be without reason . . . .”). 5 We encourage plan administrators, in denying benefits 6 claims, to explain their reasons for determining that claimants 7 are not disabled where the SSA arrived at the opposite 8 conclusion: Doing so furthers ERISA’s goal of providing 9 claimants with additional information to help them perfect their 10 claims for subsequent appeals. See 29 U.S.C. § 1133; 29 C.F.R. § 11 2560.503-1(g)(1)(iii). Nonetheless, especially in light of the 12 substantial evidence supporting its determination, we decline to 13 hold that MetLife’s failure to do so in this case renders its 14 denial of Hobson’s LTD benefits claim arbitrary and capricious. 15 CONCLUSION 16 For the foregoing reasons, the judgment of the district 17 court is AFFIRMED.