Maureen Keough v. Liberty Life Assur.
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Opinion
Maureen Keough v . Liberty Life Assur. CV-03-266-PB 02/24/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Maurene Keough
v. Civil N o . 03-266-PB Opinion N o . 2005 DNH 032 Liberty Life Assurance Company of Boston
MEMORANDUM AND ORDER
Maurene Keough brings this claim for disability benefits
pursuant to the Employee Retirement Income Security Act of 1974,
(“ERISA”) as amended, 29 U.S.C. § 1132(a)(1)(B), to recover
benefits allegedly due her under the terms of the Liberty Mutual
Insurance Company’s Long-Term Disability Plan (“Plan”). The Plan
is administered by defendant Liberty Life Assurance Company of
Boston (“Liberty Life”). In the single count of the complaint,
Keough alleges that defendant Liberty Life’s decision to
terminate her long term disability benefits was improper and
contrary to the weight of the evidence. Before me are Liberty
Life’s motion for summary judgment (Doc. N o . 9 ) and Keough’s
cross motion for summary judgment (Doc. N o . 1 4 ) . For the reasons
set forth below, I grant Liberty Life’s motion and deny Keough’s motion.
BACKGROUND1
Maurene Keough worked for the Liberty Mutual Insurance
Company (“Liberty Mutual”) as a business analyst for 32 years
until she was hospitalized with a serious heart condition in
October 2000. Compl. at ¶ 5 . As a regular employee of Liberty
Mutual, she was eligible to participate in the Plan. Admin R.
30, 33.
A. The Plan
The Plan provides, among other benefits, long-term
disability (“LTD”) coverage to eligible employees through a group
insurance policy sponsored by Liberty Mutual and issued by
Liberty Life. Admin. R. 1 . In particular, the Plan provides for
the payment of LTD benefits to eligible employees who are
determined by Plan Administrator Liberty Life to be “[d]isabled.”
Id. at 1 3 . The Plan divides eligibility for long-term disability
benefits into two phases. During the first phase of up to 18
1 The background facts set forth herein are taken from the Administrative Record (“Admin. R.”) filed by Liberty Life as an appendix in support of its motion for summary judgment. Where appropriate, additional facts are taken from the pleadings.
-2- months, an employee will be considered “disabled” i f , “due to
Injury or Sickness,” she is “unable to perform all of the
material and substantial duties of [her] own occupation.” Id. at
6, 3 1 . In the second phase, after collecting benefit payments
for 18 months, an employee will continue to be considered
“disabled” only if she is “unable to perform, with reasonable
continuity, all of the material and substantial duties of [her]
own occupation or any other occupation for which [she] is or
becomes reasonably fitted by training, education, experience, age
and physical and mental capacity.”2 Id.
The burden is on the employee to submit to Liberty Life
proof that she is disabled and requires the regular attendance of
a physician. Id. at 1 3 . The Plan also provides that long-term
disability benefits will be paid for the “period of Disability if
the [employee] gives to Liberty proof of continued” disability
and the need for continued regular attendance of a physician.
Id. (Emphasis added). Furthermore, the Plan specifies that long-
term disability benefits will cease if the employee is no longer
2 The two phases of disability under the Plan are frequently referred to as the “own occupation” period (first 18 months) and the “any occupation” period (after 18 months).
-3- disabled. Id. at 1 7 . The Plan expressly invests Liberty Life,
the Plan Administrator, with
the authority, in its sole discretion, to construe the terms of this Plan and decide all questions of eligibility, determine the amount, time and manner of payments of any benefits and decide any other matters relating to the administration or operation of the Plan.
Id. at 3 9 . Finally, the Plan specifies that any “interpretations
or decisions of the Plan Administrator shall be conclusive and
binding.” Id.
B. Keough’s Claim for Short Term Disability Benefits
On October 1 8 , 2000, Keough went to the emergency room at
the Wentworth-Douglass Hospital in Dover, New Hampshire,
complaining of chest pain and shortness of breath. Admin. R. 8 8 ,
100. She was seen by Michael Jacuch, M.D., of Seacoast
Cardiology Associates and later diagnosed with unstable angina,
severe coronary artery disease, hypothyroidism, and
hyperlipidemia with fasting cholesterol. Id. at 96-99.
On October 2 6 , 2000, Keough was transferred to Portsmouth
Regional Hospital for coronary artery bypass surgery. Id. at
100. Keough underwent quadruple bypass surgery on November 1 ,
2000; the surgery was performed by Donato Sisto, M.D. of Coastal
-4- Cardiothoracic Associates. Id. at 103. According to her
November 7 , 2000 discharge summary, “postoperatively [Keough] has
done very well. She has had an uncomplicated course without
dysrhythmia or complications.” Id. at 105-06.
While she was still hospitalized, Keough applied for short-
term disability benefits (“STD”) for the period from October 2 5 ,
2000, through December 7 , 2000. Id. at 109. Liberty Life’s case
manager, Deneen DeCost, requested medical records from D r . Sisto
and D r . Jacuch and asked them each to complete a Restrictions
form and a Physical Capacities form. Id. at 7 6 , 8 0 . In response
to this request, D r . Jacuch forwarded Keough’s medical records,
but did not complete the forms, explaining that he had not yet
seen Keough in his office “post-hospitalization.” Id. at 85-87.
Dr. Jacuch indicated, however, that Keough had an appointment for
an office visit on December 7 , 2000. Id. at 8 7 . Nevertheless,
by letter dated November 8 , 2000, Liberty Life approved Keough’s
claim for STD benefits through December 7 , 2000. Id. at 109.
Unlike D r . Jacuch, D r . Sisto returned completed Restrictions
and Physical Capacities forms to Liberty Life. Id. at 112-13.
On the Restrictions form he estimated that Keough would be able
to return to work in January 2001. Id. at 112. D r . Sisto
-5- indicated that Keough should engage in “no driving, no lifting 5
lbs or more” and he instructed her “not to walk or sit for a long
period of time” through December 2 6 , 2000. Id. On the Physical
Capacities form, D r . Sisto noted that Keough could sit or walk
for up to four hours and stand for up to three hours of an eight-
hour workday, but that she should not do any pushing or pulling
and should limit reaching above the shoulder level to one hour
per workday. Id. at 113. Finally, D r . Sisto indicated that
although Keough could start work as early as December 8 , 2000,
she could not perform any “heavy lifting” until after December
2 6 , 2000.3 Id. On December 7 , 2000, however, a physician’s
assistant from D r . Sisto’s office reported to Liberty Life that
he would like Keough to “hold off on [her return to work] until
1/1/01.” Id. at 4 7 .
Keough in fact saw D r . Jacuch in his office on December 7 ,
2000, as planned. Id. at 145. In his progress notes from this
visit, he indicated that although she was experiencing “some
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Maureen Keough v . Liberty Life Assur. CV-03-266-PB 02/24/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Maurene Keough
v. Civil N o . 03-266-PB Opinion N o . 2005 DNH 032 Liberty Life Assurance Company of Boston
MEMORANDUM AND ORDER
Maurene Keough brings this claim for disability benefits
pursuant to the Employee Retirement Income Security Act of 1974,
(“ERISA”) as amended, 29 U.S.C. § 1132(a)(1)(B), to recover
benefits allegedly due her under the terms of the Liberty Mutual
Insurance Company’s Long-Term Disability Plan (“Plan”). The Plan
is administered by defendant Liberty Life Assurance Company of
Boston (“Liberty Life”). In the single count of the complaint,
Keough alleges that defendant Liberty Life’s decision to
terminate her long term disability benefits was improper and
contrary to the weight of the evidence. Before me are Liberty
Life’s motion for summary judgment (Doc. N o . 9 ) and Keough’s
cross motion for summary judgment (Doc. N o . 1 4 ) . For the reasons
set forth below, I grant Liberty Life’s motion and deny Keough’s motion.
BACKGROUND1
Maurene Keough worked for the Liberty Mutual Insurance
Company (“Liberty Mutual”) as a business analyst for 32 years
until she was hospitalized with a serious heart condition in
October 2000. Compl. at ¶ 5 . As a regular employee of Liberty
Mutual, she was eligible to participate in the Plan. Admin R.
30, 33.
A. The Plan
The Plan provides, among other benefits, long-term
disability (“LTD”) coverage to eligible employees through a group
insurance policy sponsored by Liberty Mutual and issued by
Liberty Life. Admin. R. 1 . In particular, the Plan provides for
the payment of LTD benefits to eligible employees who are
determined by Plan Administrator Liberty Life to be “[d]isabled.”
Id. at 1 3 . The Plan divides eligibility for long-term disability
benefits into two phases. During the first phase of up to 18
1 The background facts set forth herein are taken from the Administrative Record (“Admin. R.”) filed by Liberty Life as an appendix in support of its motion for summary judgment. Where appropriate, additional facts are taken from the pleadings.
-2- months, an employee will be considered “disabled” i f , “due to
Injury or Sickness,” she is “unable to perform all of the
material and substantial duties of [her] own occupation.” Id. at
6, 3 1 . In the second phase, after collecting benefit payments
for 18 months, an employee will continue to be considered
“disabled” only if she is “unable to perform, with reasonable
continuity, all of the material and substantial duties of [her]
own occupation or any other occupation for which [she] is or
becomes reasonably fitted by training, education, experience, age
and physical and mental capacity.”2 Id.
The burden is on the employee to submit to Liberty Life
proof that she is disabled and requires the regular attendance of
a physician. Id. at 1 3 . The Plan also provides that long-term
disability benefits will be paid for the “period of Disability if
the [employee] gives to Liberty proof of continued” disability
and the need for continued regular attendance of a physician.
Id. (Emphasis added). Furthermore, the Plan specifies that long-
term disability benefits will cease if the employee is no longer
2 The two phases of disability under the Plan are frequently referred to as the “own occupation” period (first 18 months) and the “any occupation” period (after 18 months).
-3- disabled. Id. at 1 7 . The Plan expressly invests Liberty Life,
the Plan Administrator, with
the authority, in its sole discretion, to construe the terms of this Plan and decide all questions of eligibility, determine the amount, time and manner of payments of any benefits and decide any other matters relating to the administration or operation of the Plan.
Id. at 3 9 . Finally, the Plan specifies that any “interpretations
or decisions of the Plan Administrator shall be conclusive and
binding.” Id.
B. Keough’s Claim for Short Term Disability Benefits
On October 1 8 , 2000, Keough went to the emergency room at
the Wentworth-Douglass Hospital in Dover, New Hampshire,
complaining of chest pain and shortness of breath. Admin. R. 8 8 ,
100. She was seen by Michael Jacuch, M.D., of Seacoast
Cardiology Associates and later diagnosed with unstable angina,
severe coronary artery disease, hypothyroidism, and
hyperlipidemia with fasting cholesterol. Id. at 96-99.
On October 2 6 , 2000, Keough was transferred to Portsmouth
Regional Hospital for coronary artery bypass surgery. Id. at
100. Keough underwent quadruple bypass surgery on November 1 ,
2000; the surgery was performed by Donato Sisto, M.D. of Coastal
-4- Cardiothoracic Associates. Id. at 103. According to her
November 7 , 2000 discharge summary, “postoperatively [Keough] has
done very well. She has had an uncomplicated course without
dysrhythmia or complications.” Id. at 105-06.
While she was still hospitalized, Keough applied for short-
term disability benefits (“STD”) for the period from October 2 5 ,
2000, through December 7 , 2000. Id. at 109. Liberty Life’s case
manager, Deneen DeCost, requested medical records from D r . Sisto
and D r . Jacuch and asked them each to complete a Restrictions
form and a Physical Capacities form. Id. at 7 6 , 8 0 . In response
to this request, D r . Jacuch forwarded Keough’s medical records,
but did not complete the forms, explaining that he had not yet
seen Keough in his office “post-hospitalization.” Id. at 85-87.
Dr. Jacuch indicated, however, that Keough had an appointment for
an office visit on December 7 , 2000. Id. at 8 7 . Nevertheless,
by letter dated November 8 , 2000, Liberty Life approved Keough’s
claim for STD benefits through December 7 , 2000. Id. at 109.
Unlike D r . Jacuch, D r . Sisto returned completed Restrictions
and Physical Capacities forms to Liberty Life. Id. at 112-13.
On the Restrictions form he estimated that Keough would be able
to return to work in January 2001. Id. at 112. D r . Sisto
-5- indicated that Keough should engage in “no driving, no lifting 5
lbs or more” and he instructed her “not to walk or sit for a long
period of time” through December 2 6 , 2000. Id. On the Physical
Capacities form, D r . Sisto noted that Keough could sit or walk
for up to four hours and stand for up to three hours of an eight-
hour workday, but that she should not do any pushing or pulling
and should limit reaching above the shoulder level to one hour
per workday. Id. at 113. Finally, D r . Sisto indicated that
although Keough could start work as early as December 8 , 2000,
she could not perform any “heavy lifting” until after December
2 6 , 2000.3 Id. On December 7 , 2000, however, a physician’s
assistant from D r . Sisto’s office reported to Liberty Life that
he would like Keough to “hold off on [her return to work] until
1/1/01.” Id. at 4 7 .
Keough in fact saw D r . Jacuch in his office on December 7 ,
2000, as planned. Id. at 145. In his progress notes from this
visit, he indicated that although she was experiencing “some
3 Keough apparently told Liberty Life that she had seen Robert Helm. M.D., of Coastal Cardiothoracic Associates on November 2 1 , 2000 who reportedly thought that a return to work date of December 8 , 2000 “might be right on target.” Admin R.
-6- chestwall tenderness” and “some fatigability,” she was
nevertheless “recuperating nicely.” Id. D r . Jacuch’s notes make
no mention of a return to work date. On December 6, 2000,
however, based on “updated medical information” suggesting that
Keough would be able to return to work on January 8 , 2001,
Liberty Life notified her that it had extended her STD benefits
through January 7 , 2001. Id. at 116.
On December 2 9 , 2000, Keough returned to Wentworth-Douglass
Hospital complaining of a urinary tract infection. Id. at 143.
Thereafter, on January 4 , 2001, she was seen for the first time
by her primary care physician, Gloria Trujillo, M.D., of Dover
Family Practice, for treatment of this infection. Id. at 135.
Keough reported to D r . Trujillo that “her energy is doing well,”
and that she “has had no chest pain, no shortness of breath, no
pedal edema.” Id. Following this examination, D r . Trujillo
referred Keough to cardiac rehabilitation. Id. at 136.
Keough returned to work on January 8 , 2001, without D r .
Trujillo’s knowledge or permission, but after only 2.5 hours she
experienced extreme fatigue. Id. at 133. In the short time
Keough was at work that day, she was notified that her position
had been eliminated for budgetary reasons. Id. Keough was
-7- surprised by this news, and reported that when she was being
told, she had some “minor pain,” felt “very stressed and anxious,
and developed some tightness in her chest.” Id. Later that day,
Keough left work and went to D r . Trujillo’s office. Id. By the
time she arrived, the pain in her chest had subsided, but Keough
informed D r . Trujillo that several days earlier she had
experienced intermittent bilateral leg pain as well as muscle
fatigue since her discharge from the hospital. Id. In her office
notes, D r . Trujillo indicated that anemia was likely contributing
to Keough’s fatigue and opined that she needed to start cardiac
rehabilitation before she could “endure long levels of daily
work.” Id. at 134. D r . Trujillo thus concluded that Keough was
“not discharged to work” and gave her a note “to be on leave 4
more weeks.” Id.
Keough next saw D r . Trujillo on January 2 3 , 2001. Id. at
131. This visit was scheduled as a follow-up to evaluate
Keough’s urinary tract infection, coronary artery disease, iron
deficiency anemia, hypothyroidism, and gastoresophogal reflux
disease (“GERD”). Id. In her office notes, D r . Trujillo
reported that:
[Keough] feels in talking with me and D r . Cunningham
-8- that she is really unable to return to work. She brings in with her a five page summary of the stress at Liberty Mutual that she has incurred. She has been employed there for approximately 32 years. She reports that even that several hours of working with incredible stress [sic] and reports and fells [sic] that her heart attack was related to the multiple stressful integrated issues at Liberty Mutual in her current position. She wishes to apply for disability. The [sic] reports no chest pain, no shortness of breath, no pedal edema. She reports incredible fatigue and with any stress she gets very anxious related to that stress. She reports no palpitations. She will be following up with D r . Cunningham as noted above.4
Id. After this office visit, D r . Trujillo gave Keough a note for
her to remain out of work from February 6, 2001 through March 1 ,
2001. Id. at 132. D r . Trujillo also advised Keough that she
would need to involve her cardiologist in her disability claim.
Id.
Nevertheless, on January 3 1 , 2001, D r . Trujillo completed
Liberty Life’s Restrictions form and Physical Capacities form in
support of Keough’s disability claim. Id. at 129-30. On the
Physical Capacities form, D r . Trujillo indicated that Keough
could sit for fewer than four hours, stand for less than one
4 D r . Trujillo’s reference to D r . Cunningham may have been in error, as the record indicates that Keough was being treated by D r . Jacuch, not D r . Cunningham.
-9- hour, walk for about two hours, and could lift 10 pounds or less
three to four times per day, all with breaks. Id. at 129.
Notwithstanding these assessments, D r . Trujillo indicated that
she did not feel Keough “will ever be able to physically endure
[an] 8 hour work day,” due to her significant coronary artery
disease. Id. Similarly, on the Restrictions form, D r . Trujillo
noted that although Keough’s “surgery was successful,” the
“significant extent” of her coronary artery disease prevented her
from performing any “intense, stressful job.” Id. at 130. D r .
Trujillo also noted that Keough’s return to work date was
“unknown.” Id. Based on this updated medical information,
Keough’s STD benefits were further extended, through March 1 ,
2001. Id. at 158.
On February 6, 2001, Keough underwent a stress test. Id. at
182. She could not, however, complete the test because she
developed bilateral intermittent claudication.5 Id. When she
saw D r . Trujillo for a follow-up visit on February 2 7 , 2001,
5 Intermittent claudication is a condition caused by ischemia, or insufficient blood flow, of the muscles due to sclerosis with narrowing of the arteries, and is characterized by attacks of lameness and pain, brought on by walking, and chiefly occurring in the calf muscles. Stedman’s Medical Dictionary 314 (25th ed. 1990).
-10- Keough reported her calf pain and D r . Trujillo recommended that
she be tested for arterial occlusion, given her “significant”
peripheral vascular disease.6 Id. at 184. D r . Trujillo noted,
however, that Keough was in her second week of cardiac
rehabilitation and slowly improving her endurance, and that she
reported no significant shortness of breath, or chest pain. Id.
Keough next saw D r . Jacuch on March 8 , 2001. In his notes
from this visit, D r . Jacuch reported that
[Keough] tells me that she has been feeling relatively well. The issue of anemia has been addressed, and [she] has had evaluation of peripheral vascular disease because of calf claudication. Since starting cardiac rehab, she has been doing well and expanding her exercise tolerance and her capacity for exercise with significantly diminished claudication. She plans to go to The Works [a health club] after she finishes her cardiac rehab. She has lost 15 pounds in one month, feels fantastic about the fact that her exercise tolerance is improving, continues to have no symptoms of chest pain, dyspnea [shortness of breath] on exertion, PND [paroxysmal nocturnal dyspnea], orthopnea [discomfort in breathing], palpitations, syncope [fainting] or edema.
Id. at 191.
6 An arterial occlusion is the blockage of an artery due to the build-up of plaque on the arterial walls, leading to ischemia. See Stedman’s Medical Dictionary 129, 1077(25th ed. 1990).
-11- On the same day, Keough met with a vascular surgeon, D r .
Robert Oram, M.D. He diagnosed her with severe atherosclerotic
disease with bilateral SFA occlusions and evidence of a right
popliteal aneurysm.7 Id. at 190.
On April 2 , 2001, Liberty Life notified Keough that based on
the updated medical information it had received on March 2 1 ,
2001, her STD benefits had been extended through April 1 7 , 2001,
the end of the maximum allowable STD period. Id. at 196.
C. Keough’s Claim for Long Term Disability Benefits
1. The “Own Occupation” Period
Pursuant to the Plan, Keough would be considered “disabled,”
and thus eligible to collect LTD benefits during the first 18
month period i f , due to an injury or sickness, she was unable to
perform all the material and substantial duties of her own
occupation as an Associate Business Analyst. See Admin. R. 6,
31. To evaluate Keough’s LTD claim, Liberty Life asked Liberty
7 On April 1 7 , 2001, Keough underwent an abdominal aortogram and aortofemoral run-off arteriogram at Wentworth Douglass Hospital. Admin. R. 217. These tests revealed “[e]xtensive arteriosclerotic disease involving the aortoiliac vessels, femoral and popliteal vessels” as well as a “total occlusion of both superficial femoral arteries with fill of only short segments of the popliteal arteries” and “[a]rteriovenous fistula involving her right foot.” Id.
-12- Mutual to submit her job description and a Physical Job
Evaluation form. Id. at 207-09. According to Liberty Mutual’s
description, an Associate Business Analyst would be expected to
be sitting for 100% of the time and typing between 25% and 50% of
the time. Id. at 209. As Liberty Mutual explained, this is a
sedentary job that did not require any physical exertion or
lifting. Id. Additionally, Liberty Mutual claimed that this job
would allow Keough to change positions frequently. Id.
On May 2 1 , 2001, D r . Trujillo forwarded to Liberty Life the
results of Keough’s April 1 7 , 2001 tests, indicating that she had
severe vascular disease of her lower extremities. Id. at 214.
She explained that as a result of this condition, Keough could
not sit, stand, or walk for more than 20 minutes at a time, and
would need frequent breaks. Id. D r . Trujillo reported that
Keough had been referred to D r . Oram for further management of
her vascular disease. Id.
Several weeks later, Liberty Life asked D r . Chester Conrad,
M.D., a specialist in internal medicine and cardiovascular
disease, to provide a peer review of Keough’s file.8 Id. at 219-
8 D r . Conrad was asked five specific questions: (1) Based on the job description provided, can M s . Keough return to work at
-13- 24. D r . Conrad reviewed the entire file and also discussed
Keough’s case with D r . Trujillo. Id. at 223. D r . Trujillo
explained to D r . Conrad that although Keough had done reasonably
well following her bypass surgery, from a cardiac standpoint, the
severe claudication significantly limited her ability to
undertake cardiac rehabilitation. Id. D r . Trujillo further
explained that Keough would be unable to work effectively, even
at a sedentary job, until her peripheral vascular disease was
treated, but might be able to return to work if her vascular
problems were resolved. Id. D r . Conrad thus found that there
was no evidence of “post-operative ischemia, congestive heart
failure, arrythmias, or other factors” that would preclude
sedentary work from a cardiac standpoint. Id. Based on his
review of the medical records, and his conversation with D r .
Trujillo, D r . Conrad answered the five questions as follows:
this time? Regardless of your position please explain your reasoning; (2) If not, when do you anticipate she will be re- employable to her own occupation?; (3) What treatment, if any, do you feel [ ] is medically necessary and/or beneficial to help facilitate her return to work possibilities? Please outline specific modalities, frequencies and total duration of expected care; (4) When do you anticipate M s . Keough may reach a level where she can seek some gainful employment?; (5) Do you consider M s . Keough totally disabled from employment at this time? Admin. R. 219.
-14- 1. Based solely on the job description, it appears that [Keough] might theoretically be able to return to work, but the attending physician indicates that the employee has severe claudication and markedly impaired functional capacity, which would likely prevent her from being able to work at the present time.
2. It is quite possible that the employee could return to the job as described if her peripheral vascular disease can be effectively treated.
3. Evaluation and treatment for peripheral vascular disease (possibly including surgery) would likely be useful in improving the employee’s functional capacity and allowing more effective rehabilitation. The attending physician indicates that the employee is to be seen by a vascular surgeon in the near future; if surgery is required, it is likely that a period of several months would be required for recovery and rehabilitation following surgery, although a precise period of time cannot be determined at present.
4. It is likely that the employee would be able to return to employment following treatment of peripheral vascular disease.
5. On the basis of the information provided by the attending physician, it appears that the employee is unable to return to work at the present time.
Id. at 219-20. Accordingly, by letter dated June 1 5 , 2001,
Liberty Life notified Keough that her claim for LTD benefits
during the “own occupation” period had been approved, retroactive
to April 1 8 , 2001. Id. at 225-27. In this letter, Liberty Life
also asked Keough to complete a Training-Education-Experience
-15- form and a Social Security Payment Option form by July 1 6 , 2001.9
Id. at 227. Keough timely complied with this request. Id. at
232.
2. The “Any Occupation” Period
Under the Plan, the own occupation period of Keough’s LTD
benefits was due to conclude on October 1 7 , 2002. Admin. R. 256.
Keough would remain eligible for LTD benefits beyond this date
only if she was disabled, such that she was “unable to perform
all of the material and substantial duties” of her own occupation
or of “any other occupation” for which she was “reasonably fitted
by training, education, experience, age and physical and mental
capacity.” Id. 6, 3 1 . Accordingly, on May 1 3 , 2002, Liberty
Life asked Keough to complete a Claimant’s Information form, a
Claimant’s Supplementary Statement, and an Activities
Questionnaire by June 3 , 2002, and further requested updated
information from Keough’s physicians. Id. at 241. Keough
completed these forms and returned them to Liberty Life on May
1 7 , 2002. See id. at 242-46.
9 Keough was notified on July 3 , 2001 that she was entitled to monthly Social Security disability benefits. Admin. R. 234- 37.
-16- On the Activities Questionnaire, Keough reported that she
was able to perform most activities of daily living, including
shopping, housework, running errands, and participating in an
exercise program. Id. at 244-46. In addition, she reported that
she spends approximately 12 hours per day sitting, albeit with a
lot of stretching, and that she spends about one hour each day
standing, usually in 10 minute intervals. Id. at 245. In the
section of the Questionnaire that asked her to describe her
typical day, Keough explained that in the morning she spends
about one hour using her computer to manage her finances and
correspond with friends and family, and in the evening spends
between 3 and 3.5 hours reading the paper and sorting through her
mail, before returning to her computer for additional
correspondences and, occasionally, to play computer games. Id.
at 246.
As requested by Liberty Life, D r . Trujillo, Keough submitted
updated medical information in July 2002, including office notes,
a Restrictions form and a Functional Capacities form. Id. at
258-268. In her office note from January 2 , 2002, D r . Trujillo
indicated that Keough was “doing very well” after bypass surgery
for a blocked artery in her left leg, and that she was
-17- “ambulating more,” and is “pain free with ambulation and
exercise.” Id. at 261. In fact, Keough was “walking without any
pain” and was exercising again at the gym. Id. Moreover,
according to D r . Trujillo, Keough had recently seen D r . Oram and
he too was pleased with her progress. Id. Finally, D r . Trujillo
noted that Keough had no chest pain or shortness of breath, that
her energy level was good, and that she generally felt “great”
and was exercising regularly. Id.
Keough was also seen by D r . Trujillo for a physical
examination on June 3 , 2002. Id. at 265-68. D r . Trujillo again
reported that Keough “was still exercising regularly,” had
increased energy as a result of her thyroid medication and no
pain from walking. Id. at 265. Then, on July 2 1 , 2002, D r .
Trujillo indicated on a Functional Capacities form that Keough
had no restrictions on her ability to drive or engage in
repetitive motions, but that she could not bend, squat, kneel,
climb, push, or pull. Id. at 260. On the same form, D r .
Trujillo opined that Keough could “never” return to work, and
could only sit for about 4 hours each day (up to 1/3 of the time)
and stand and walk for about one hour each day. Id. at 260.
Likewise, on the Restrictions form she completed the same day,
-18- Dr. Trujillo noted that Keough’s estimated return to work date
was “none.” Id. at 259.
In August 2002, D r . Oram, who was treating Keough for her
peripheral vascular disease, responded to Liberty Life’s request
and submitted treatment records, but did not complete the
Restrictions form or the Functional Capacities form. Id. at 270-
85. In his notes, D r . Oram indicated that he had seen Keough in
June 2001, and at that visit discussed her atherosclerotic
disease at length. Id. at 273. D r . Oram reviewed Keough’s April
1 7 , 2001 angiogram with her, explained the various treatment
options, and recommended that she try to walk as much as
possible. Id. When D r . Oram saw Keough again, on August 2 7 ,
2001, they discussed bypass surgery on her left leg, but she
elected to delay the surgery until October 2001. Id. at 274.
Finally, on October 2 3 , 2001, D r . Oram performed a “left peroneal
in situ bypass graft” on Keough’s left leg.10 Id. at 278. In a
10 A peroneal in situ bypass graft is a surgical procedure performed on the lateral side of the lower leg by first removing a portion of a healthy blood vessel from the leg, called a graft, and then sewing or “grafting” one end of the healthy blood vessel to the artery above the blocked area and the other end to the artery below the blocked area. The goal of this procedure is to increase blood flow to the lower leg and foot. See Stedman’s Medical Dictionary 2 2 4 , 788 (25th ed. 1990).
-19- November 1 9 , 2001 post-operative visit to D r . Oram’s office,
Keough reported that she was walking much better than she had
been two weeks earlier and, moreover, had no complaints about her
right leg. Id. at 282. More than six months later, on July 8 ,
2002, Brian Fisher, P.A.C., a physician’s assistant in D r . Oram’s
office, saw Keough for a follow-up visit. Id. at 285. At that
appointment, Keough told Fisher that she was “doing a lot of
walking,” and going to “The Works, doing 2 to 2.5 mph for 25
minutes,” only stopping because she wanted to go on to other
machines. Id. Keough had “no complaints of claudication.” Id.
In his assessment, Fisher noted that Keough’s left leg had an
“improved status” and that her right leg was “stable.” Id. He
encouraged her to continue walking and told her that they would
see her again in one year. Id. D r . Oram agreed with this
assessment and treatment plan. Id.
Liberty Life also received records from Keough’s
cardiologist, D r . Jacuch. Id. at 287-91. According to a January
3 1 , 2002 office note, D r . Jacuch indicated that Keough looked and
felt well, and she told him that she was exercising “every other
day.” Id. at 290. At that time, Keough denied any chest pain
and had “improvement in her previous symptoms of leg claudication
-20- as she underwent her bypass procedure in the lower left
extremity” in October 2001. Id. On the Functional Capacities
form dated August 2 7 , 2002, D r . Jacuch indicated that Keough
could sit frequently (between 1/3 and 2/3 of the time), and
stand, walk, squat, bend, kneel, climb, and drive occasionally
(up to 1/3 of the time), but had no restrictions on repetitive
motions or lifting less than 10 pounds. Id. at 288. Similarly,
on the Restrictions form he indicated that Keough was “cardiac
stable,” but deferred to D r . Oram as to her estimated return to
work date. Id. at 289.
On September 1 0 , 2002, after collecting updated medical
records, an independent registered nurse, Marilee Clark, R.N.,
reviewed Keough’s file for Liberty Life to determine if she was
disabled from her own or any occupation. Id. at 286. Clark
found that although Keough had progressed well, and was cardiac
stable, it would be necessary for D r . Oram to address Keough’s
restrictions and limitations impacting her return to work, or
order a functional capacities exam to determine her actual work
capacity. Id. Clark then opined that she “would question
[whether Keough would be] able to sustain a totally sedentary
position due to the need for her to be up and about to promote
-21- circulation.” Id.
Liberty Life then referred Keough’s case to a vocational
counselor for a transferable skills analysis (“TSA”) and a labor
market survey (“LMS”). Id. at 292-97. The vocational counselor
contacted D r . Oram, provided him with D r . Jacuch’s August 2 7 ,
2002 Functional Capacities form, and asked him if he agreed with
Dr. Jacuch’s assessment. Id. at 297. She expressly requested
that D r . Oram respond and provide objective medical documentation
by October 2 , 2002 if he did not agree with D r . Jacuch, and
informed him that his failure to respond by this date would be
construed as agreement with D r . Jacuch. Id. D r . Oram did not
respond to this request and Liberty Life thus assumed he
concurred with D r . Jacuch’s assessment.
On October 1 6 , 2002, Liberty Life wrote to Keough to inform
her that based on a review of the medical and vocational evidence
submitted through September 2002, she no longer met the
definition of “Total Disability” because, at that time, based on
her education, work history, and transferable skills, there were
three occupations Keough would be able to perform. Id. at 301-
05. Liberty Life thus terminated her LTD benefits. Id. at 301.
In support of its decision, Liberty Life cited to documentation
-22- received from D r . Trujillo, D r , Jacuch, and D r . Oram, as well as
Keough’s May 1 7 , 2002 Activities Questionnaire and the findings
of the vocational counselor. Specifically, Liberty Life found
that D r . Trujillo’s office records from January 2002 through July
2002 were “inconsistent with the limitations she has placed on
[Keough’s] physical abilities” and indicated that it was “unclear
how she arrived at these conclusions.” Id. at 302. With respect
to the documentation provided by D r . Oram on August 2 1 , 2002,
Liberty Life found that D r . Oram did not complete the
Restrictions or Functional Capacities forms that were sent to
him, and did not otherwise indicate any restrictions or
limitations on Keough’s functional abilities. Id. at 302-03.
Moreover, a July 8 , 2002 office visit note from Brian Fisher, a
physician’s assistant in D r . Oram’s office, indicated that
Keough’s left leg had improved after the surgery, her right leg
was stable, and that he encouraged her to continue walking. Id.
at 302. Fisher and D r . Oram agreed that they would see Keough in
one year. Id. In his August 2 7 , 2002 assessment, D r . Jacuch
indicated that Keough had no restrictions on repetitive movements
of her wrist, elbow, shoulder, or ankle, and no restrictions on
lifting less than 10 lbs. Id. at 303. He further indicated that
-23- she could frequently sit, push, reach, grasp, and lift between 10
and 20 pounds. Id.
Liberty Life found that based on her May 1 7 , 2002 Activities
Questionnaire, Keough was able to perform her daily activities,
including housework, shopping, running errands, and participating
in a regular exercise program. Id. Finally, Liberty Life
referred Keough’s claim to a vocational counselor. The counselor
performed a Transferable Skills Analysis (“TSA”) and a Labor
Market Survey. Based on her analysis of Keough’s medical
information and her education, work history, and transferable
skills, she concluded that Keough was qualified to work as a
Computer Support Specialist, a Management/Data Communications
Analyst, and an Internal Auditor/Accountant. Id. at 304.
Liberty Life thus determined that Keough did not meet the
definition of “Disability” from any occupation as defined in the
Plan. As a result, her LTD benefits were terminated as of
October 1 7 , 2002.
D. Keough’s Appeal
By letter dated November 2 1 , 2002, Keough appealed Liberty
Life’s decision to terminate her LTD benefits. Admin R. 306-15.
With her 10-page appeal letter, Keough forwarded additional
-24- medical documentation.11 In her letter, Keough thoroughly
documented her subjective feelings of pain and attempted to
clarify and explain the statements of her physicians contained in
the medical records. See id. at 306. She also indicated that
she suffered from physical and mental fatigue and an inability to
concentrate. See id. at 307. Keough noted that she had recently
suffered a knee injury and had aggravated a prior injury in her
“upper right arm muscle” and a “right wrist and thumb” injury
from writing and typing her “appeal document.” Id. at 306.
Finally, she reported that she suffered a “new strain injury to
the trapezoidal muscle in [her] shoulder blade.” Id.
Keough also indicated in her appeal letter that in July
11 These materials included (i) the office notes from her October 2 4 , 2002 visit with D r . Trujillo; (ii) an October 2 9 , 2002 letter of support from D r . Trujillo; (iii) a November 1 1 , 2002 letter of support from D r . Oram; (iv) the records from her October 1 6 , 2002 visit to the Wentworth Douglass Hospital emergency room for pain in her right knee; (v) the results of her October 2 3 , 2002 stress test (along with her own summary of that test, titled “What Really Happened”);(vi) the records from her four 2001 visits with D r . Mitchell Kalter, who diagnosed her with and treated her for deQuervain’s tenosynovitis; (vii) notes from her occupational therapists from sessions for treatment of deQuervain’s in July and August 2001; (viii) Emergency Room Visit summary reports for several bladder infections; and (ix) notes from urologist D r . Roger Evans who treated Keough for her bladder infections.
-25- 2001, D r . Trujillo referred her to D r . Mitchell Kalter because
she had been experiencing pain in her right hand for two months.
Id. at 334. D r . Kalter diagnosed Keough with deQuervain’s
tenosynvitis in her right wrist.12 Id. He treated her with
corticosteriod injections and recommended a splint, occupational
therapy, and rehabilitation. Id. D r . Kalter saw Keough again in
August 2001 and noted that she was “significantly improved with
conservative management,” and by September 2001, the triggering
in her thumb was no longer bothering her. Id. at 335-36.
Finally, in October 2001 D r . Kalter reported that Keough was “ so
minimally symptomatic,” that the deQuervain’s was “essentially
resolved.” Id. at 337.
Liberty Life then referred Keough’s appeal to D r . John
Holbrook, M.D., a physician board certified in internal medicine,
for an independent evaluation. Id. at 375-82. He reviewed
Keough’s entire file, which included the new documentation
submitted with her appeal. Specifically, D r . Holbrook determined
that as of August, 2002, Keough’s cardiologist, D r . Jacuch opined
12 “DeQuervain’s tenosynovitis,” also called “deQuervain’s disease,” is fibrosis of the sheath of a tendon of the thumb. Steadman’s Medical Dictionary 446 (25th ed. 1990). -26- that she “possesses significant retained physical functional
capacity” and was able to “sit, push, grasp, lift 10 to 20 pounds
on a frequent basis” as well as “walk, squat, bend, kneel, climb,
drive, and pull on an occasional basis.” Id. at 376. Noting
that D r . Jacuch’s opinions were supported by the results of
cardiac testing, D r . Holbrook determined that there was “no
evidence that Keough’s physical functional capacity is limited by
cardiac symptoms precluding sedentary activity.” Id. Likewise,
Dr. Holbrook found that Keough’s hypercholesterolemia and
hypothyroidism had been adequately treated and there was no
evidence in the medical file that either of these conditions
would cause an impairment precluding sedentary work. Id.
Dr. Holbrook next noted that in his November 1 1 , 2002
letter, D r . Oram indicated that Keough’s peripheral vascular
disease was not a “major difficulty” for her and that her file
included multiple descriptions of her activity that depict a
physical functional capacity that surpasses sedentary. Id. He
further noted that Keough’s own description of her ability to
vacuum and clean bathrooms suggested a capacity to perform, at
the very least, sedentary work. Id.
After acknowledging Keough’s own description of severe
-27- limitations in her activities based on fatigue and pain from her
multiple diagnoses, D r . Holbrook noted that “other independent
observations and reports of her physical functional capacity and
ability to sit and walk contradict [Keough’s] self-reported
limitations.” Id. at 377. This, he determined, suggested a
“significant degree of symptom magnification.” Id. Furthermore,
Dr. Holbrook found that D r . Trujillo’s reports of Keough’s
physical functional capacity were inconsistent with her own
description from several months earlier, yet the file contained
“no interval description of [Keough’s] condition worsening.” Id.
Next, D r . Holbrook determined that there was evidence in the
record that Keough had never mentioned her inability to
concentrate to any of her physicians, nor had they ever
recognized this problem or included it in their diagnostic lists.
Id. Finally, D r . Holbrook found that Keough had been
successfully treated for deQuervain’s tenosynovitis by D r . Kalter
in 2001, and that this condition did not appear again as an issue
until October 2002. Id. He opined that if the problem had been
severe, Keough would have been referred back to D r . Kalter or to
another orthopedic surgeon. Id. He thus concluded that Keough’s
problem with deQuervain’s tenosynovitis was time-limited and
-28- successfully treated, and did not rise to the level of causing
impairment from sedentary work. Id.
On the basis of his evaluation of Keough’s medical file, D r .
Holbrook made the following recommendations:
1 . The diagnoses of coronary artery disease, hypothyroidism, carotid atherosclerosis, and peripheral vascular disease are certain. The diagnosis of GERD is uncertain. 2 . [Keough’s] medical care appears to meet all the standards of good medical care.
3 . The preponderance of the evidence in the medical file indicates that [Keough] has recovered from coronary artery disease, hypothyroidism, and peripheral vascular disease on the basis of recent medical and/or surgical treatment such that she has adequate physical functional capacity for full time sedentary work.
4 . There is no indication in the medical file that GERD or carotid disease ever produced symptoms that limited [Keough’s] physical functional capacity.
5 . There in no indication in the medical file that [Keough] has other diseases that significantly limit her physical functional capacity to a degree that would limit her ability to perform full-time sedentary work.
Id. at 375.
On March 6, 2003, after considering the additional evidence
submitted with Keough’s appeal and D r . Holbrook’s assessment and
recommendations, Liberty Life upheld its October 1 6 , 2002
decision to terminate her LTD benefits. Id. at 387. Liberty
-29- Life concluded that “the totality of medical and vocational
documentation reviewed does not substantiate that M s . Keough is
disabled from performing other occupations within her vocational
capacity.” Id. In this letter, Liberty Life first detailed the
relevant Plan provisions and provided a complete history of
Keough’s case, including the TSA and labor market survey
conducted by the vocational counselor, as well as D r . Holbrook’s
findings. See id. at 388-92. It then explained that despite
Keough’s reports of pain and fatigue, the medical and clinical
evidence in her file did not establish that any of her conditions
are of the “nature and severity which would prevent her from
performing the sedentary alternative occupations” identified by
the vocational consultant. Id. at 393. Notably, Liberty Life
pointed out that each of these occupations would allow Keough to
change positions throughout the day, as needed. Id. Her
administrative rights to review exhausted, Keough commenced this
suit.
STANDARD OF REVIEW
The parties’ initial dispute is over the appropriate
standard of review. When the denial of benefits is challenged
-30- under ERISA, § 1132(a)(1)(B), “the standard of review depends
largely upon whether ‘the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.’” Leahy v .
Raytheon Co., 315 F.3d 1 1 , 15 (1st Cir. 2002)(quoting Firestone
Tire & Rubber C o . v . Bruch, 489 U.S. 1 0 1 , 115 (1989)). If the
benefit plan clearly grants the plan administrator discretionary
authority, a deferential “arbitrary and capricious” or “abuse of
discretion” standard of review is mandated.13 See id.; see also
Terry v . Bayer Corp., 145 F.3d 2 8 , 37 (1st Cir. 1998). This
standard means that “the administrator’s decision will be upheld
if it is reasoned and supported by substantial evidence in the
record.” Vlass v . Raytheon Employees Disability Tr., 244 F.3d
2 7 , 30 (2001)(internal quotations omitted); see also Cook, 320
F.3d at 19 (in determining if a plan administrator’s decision was
reasonable, the court looks to the record as a whole: that
evidence that was before the administrator when he made the
decision being reviewed). As such, “[r]easoned denials of
13 In the First Circuit, there is no substantive difference between “arbitrary and capricious” and “abuse of discretion” review in the ERISA context. Cook v . Liberty Life Assurance C o . of Boston, 320 F.3d 1 1 , 17 n.7 (1st Cir. 2003).
-31- benefits that are supported by substantial evidence will survive
review under this standard.” Doyle v . Paul Revere Life Ins. Co.,
144 F.3d 1 8 1 , 184 (1st Cir. 1998). Substantial evidence means
evidence that is “reasonably sufficient to support a conclusion,”
and the presence of contradictory evidence “does not, in itself,
make the administrator’s decision arbitrary.” Vlass, 244 F.3d at
30. Finally, in reviewing a decision to terminate benefits, “a
court is not to substitute its judgment for that of the
[decision-maker].” Terry, 145 F.3d at 40 (internal quotations
omitted).
Keough concedes, as she must, that the Plan Administrator,
Liberty Life, is vested with the discretionary authority to
construe the terms of the Plan and to make benefits
determinations.14 Keough argues, however, that I must apply a
heightened standard of review because Liberty Life operated under
a conflict of interest. She asserts that a “glaring conflict of
interest clearly exists” because her employer, Liberty Mutual,
the Plan’s sponsor and the entity that paid for her disability
14 In fact, the clear and express grant discretionary authority appears in both the Plan, see Admin. R. at 2 3 , and in the supporting Summary Plan Description. See Admin. R. at 3 9 . -32- benefits, is affiliated with Liberty Life, the Plan’s underwriter
and administrator. I disagree. The First Circuit has instructed
that “[t]o affect the standard of review, . . . a conflict of
interest must be real. A chimerical, imagined or conjectural
conflict will not strip the [plan administrator’s] determination
of the deference that would otherwise be due.” Leahy, 315 F.3d
at 16 (citing Doyle, 144 F.3d at 1 8 4 ) . It is no more than mere
conjecture to allege that a conflict exists “simply because an
award of benefits would come from the same entity that is
responsible for determining eligibility for those benefits.”
Robinson v . Unum Life Ins. C o . of Am., N o . Civ. 02-6-B, 2003 WL
1193017, at *5 (D.N.H. Mar. 1 2 , 2003); see also Smith v . Fortis
Benefits Ins. Co., N o . Civ. 02-55-B, 2003 WL 1049959, at *4
(D.N.H. Mar. 6, 2003)(finding no actual conflict where insurer
served both as plan administrator deciding claims and employer
paying out claims). Without more, this general assumption does
not support Keough’s conclusion that Liberty Life was improperly
motivated.
Here, the only other evidence that Keough has produced to
bolster her theory that Liberty Life was improperly motivated
when it terminated her LTD benefits is unpersuasive. Keough
-33- argues initially that because this Plan was employer, rather than
employee, funded, Liberty was “biased” in its handling of claims
because it was “essentially paying out of pocket” for Keough’s
LTD benefits. This argument is unavailing for two reasons.
First, in Doyle, the First Circuit recognized that although such
an arrangement may suggest a conflict, it indicated that the
problem is “not as serious as might appear at first blush.” 144
F.3d 1 8 1 , 184 (1st Cir. 1998). The court explained that the
existence of “an important competing motive: having a benefit
plan to please employees, not to result in the employer’s bad
reputation” operated as a countervailing motivation on Plan
Administrators to review claims with an even hand. Id. Second,
this Plan is not employer funded. The full cost of long term
disability coverage is paid by the employees with after-tax
dollars. See Admin. R. at 3 0 .
Next, she relies heavily on the fact that her job was
eliminated in January 2001 and on an email from Deneen DeCost at
Liberty Life to Michael Bisson at Liberty Mutual, in which DeCost
wrote that any effort to return Keough to her former position was
-34- “fruitless” and that Liberty Mutual did not want her back.15 Id.
at 200. From this, Keough reasons that Liberty Life made the
decision to terminate her benefits as soon as the initial 18-
month benefit period concluded. She also suggests that in
evaluating her claim for LTD benefits in the “any occupation”
period, Liberty Life failed to consider “alternative pieces of
evidence” from her doctors and “conveniently ignored” her
inability to sit for long periods of time. Aside from these
unsubstantiated allegations, however, Keough offers no evidence,
documentary or testimonial, to support her theory. This evidence
is simply insufficient to demonstrate the existence of a
conflict. See Leahy, 315 F.3d at 1 6 .
Finding no conflict of interest, I must apply an arbitrary
and capricious standard of review, and proceed to ensure that the
termination of LTD benefits was not “objectively unreasonable in
15 This excerpt of the email tells only part of the story. First, DeCost wrote to Bisson that because Keough’s job had been eliminated, “any effort to return her to her former position is fruitless, and “from what I gather from both parties, [Keough] would never go back and [Liberty Mutual does not] want her back.” Admin R. at 200. In his response to DeCost’s email, Bisson wrote that even though Keough would not be returning to her job at Liberty Mutual, “we still need to evaluate her disability based on being disabled from her prior job to her disability for the own occupation period.” Id.
-35- light of the available evidence.” Pari-Fasano v . ITT Hartford
Life and Accident Ins. Co., 230 F.3d 415, 419 (1st Cir. 2000). I
hold that it was not.
ANALYSIS
Keough claims that Liberty Life’s determination that she no
longer met the definition of “Total Disabiity,” and its
subsequent termination of her LTD benefits was “arbitrary and
capricious.” Pl.’s Mot. for Summ. J. at 1 4 . (Doc. N o . 1 3 ) . In
support of her position, Keough makes two arguments. First, she
asserts that because there were no material changes in her health
status, either before or after Liberty Life terminated her
benefits, the decision to terminate was necessarily “arbitrary
and capricious.” Id. at 14-17. Second, she argues that Liberty
Life did not have sufficient evidence to make a reasonable
eligibility determination because it did not consult all the
information reasonably available to i t . Id. at 17-19.
To support her first argument, Keough claims that Liberty
Life disregarded D r . Trujillo’s and D r . Oram’s assessments that
she could not return to work, likewise disregarded her subjective
-36- account of her own medical problems, and failed to give
controlling weight to the opinions of her treating physicians
that supported her position on appeal. Keough charges that the
available medical evidence was clear and uncontroverted, such
that a reasonable review of this evidence could lead only to the
conclusion that in October 2002, she remained “totally disabled”
and unable to perform even sedentary work. This argument is
unavailing.
Here, a careful review of the record reveals that it is
neither clear nor uncontroverted. Rather, the record is capable
of “supporting competing inferences” as to both the improvements
in Keough’s health status and her ability to return to work.
Leahy, 315 F.3d at 1 9 . Unfortunately for Keough, that conflict
is insufficient to satisfy her burden. Id. Under an “arbitrary
and capricious” standard of review, the essential question is not
which side I believe is right, but whether Liberty Life had
substantial evidentiary grounds to reasonably terminate Keough’s
disability benefits. See Matias-Corea v . Pfizer, Inc., 345 F.3d
7 , 12 (1st Cir. 2003); Brigham v . Sun Life of Canada, 317 F.3d
7 2 , 85 (1st Cir. 2003). I therefore reject Keough’s position on
this point.
-37- An additional flaw in this argument, however, is that
Liberty Life was not required to demonstrate a material change in
her health immediately prior to the decision to terminate her
benefits. Although Keough relies in part on Cook v . Liberty Life
Assurance Co., 320 F.3d 11 (1st Cir. 2003) for support, this
reliance is misplaced. Cook does not, as Keough seems to
contend, stand for the proposition that a plan administrator’s
decision to terminate disability benefits is “arbitrary and
capricious” when the available evidence does not demonstrate any
material change in the participant’s health. Rather, in Cook,
the First Circuit concluded that the insurer’s decision to
terminate Cook’s disability benefits was “arbitrary and
capricious” because in so doing, it rejected the unwavering
opinion of her treating physician that she was “totally disabled”
and “should be kept out of work indefinitely” without developing
“any contradictory medical evidence in the record to support its
decision to reject Cook’s evidence.” Cook, 320 F.3d at 2 3 . Cook
is thus inapposite where, as here, the file is replete with
contradictory medical evidence and reasonable medical
professionals could, and did, disagree.
Keough’s second argument, that Liberty Life did not have
-38- sufficient information to reasonably deny her benefits, is
equally unavailing. Here, Keough first claims that Liberty Life
“summarily disregarded” her subjective descriptions of her own
medical problems, including her inability to concentrate. This
is an inaccurate description of Liberty Life’s analysis. In his
review of her file, D r . Holbrook specifically considered how
Keough described her own inability to concentrate, and recognized
this testimonial as a potential complication of cardiac bypass
surgery. He also noted, however, that there was no record that
Keough had ever mentioned this problem to any of her physicians
and that none of Keough’s physicians ever recognized this problem
or included it in their diagnostic lists. Finally, D r . Holbrook
pointed out that Keough’s ability to describe her various medical
conditions over many pages of typewritten text contradicted her
description of this problem. Liberty Life did not, therefore
“summarily disregard” her subjective claim of an impairment.
Rather, Liberty Life reasonably accepted D r . Holbrook’s opinion
that Keough’s claim of a disabling inability to concentrate was
not credible.
Keough next alleges that Liberty Life failed to give
controlling weight to those opinions of her treating physicians
-39- that supported her appeal and that it ignored D r . Oram’s November
1 1 , 2002 letter. Again, Keough is incorrect. Faced with sharply
conflicting medical evidence, Liberty Life reasonably accepted
the opinions of the vocational counselor and D r . Holbrook
regarding her ability to return to work, rather than Keough’s
contrary view and the inconsistent opinions of her treating
physicians.
Moreover, D r . Oram’s November 1 1 , 2002 letter was in fact
included in the medical records reviewed by D r . Holbrook, and he
made specific reference to the conclusions advanced by D r . Oram
in that letter.16 In that letter D r . Oram stated, somewhat
inconsistently, that Keough had some “numbness after sitting in a
chair for only five minutes” but that “the issue of vascular
insufficiency” was not a “major difficulty” for her. He did not
16 Liberty Life did not consider D r . Oram’s assessment during the initial “any occupation” eligibility determination because D r . Oram failed to respond to at least one request for medical records. Specifically, when the vocational counselor contacted him on September 1 8 , 2002, she provided him with D r . Jacuch’s assessment of Keough’s physical functional capacity, asked him to provide his own impressions, and put him on notice that if she did not hear from him by October 2 , 2002, Liberty Life would assume he concurred with D r . Jacuch’s assessment. D r . Oram did not respond to this request, and Liberty Life thus proceeded on the assumption that he agreed with D r . Jacuch.
-40- indicate, however, whether he concurred with D r . Jacuch’s August
2 7 , 2002 Functional Capacities form, but instead deferred to D r .
Trujillo’s assessment of Keough’s limitations.
Furthermore, the medical opinions offered by D r . Trujillo
and D r . Oram were by no means conclusive. For example, on March
1 9 , 2001, D r . Trujillo indicated that Keough could sit for
approximately four hours with breaks; in May 2001 she retreated
from this assessment and reported that Keough could only sit for
no more than twenty minutes at a time, but by July 2 1 , 2002, D r .
Trujillo again opined that Keough could sit for up to 1/3 of the
workday. Similarly, although there is no mention in D r . Oram’s
records of Keough ever complaining about an inability to sit for
more than a few minutes at a time, and in fact, a June 2001
report from his office indicated that she did not have “rest pain
in either leg,” in his November 1 1 , 2002 letter D r . Oram
nevertheless inexplicably concluded that she could not sit for
more than five minutes without experiencing numbness in her legs.
This assessment was contradicted by D r . Jacuch’s August 2 7 , 2002
Functional Capacities form in which he indicated that Keough
could sit, push, reach, and grasp frequently (between 1/3 and 2/3
of the time), and could stand, walk, squat, bend, kneel, climb,
-41- and drive occasionally (up to 1/3 of the time). D r . Jacuch
further indicated that by August 2002, Keough was cardiac stable.
In view of this evidence, it was not unreasonable for Liberty
Life to credit D r . Jacuch and D r . Holbrook’s opinions and
conclude that the medical conditions described in Keough’s appeal
letter did not prevent her from returning to work. See Leahy,
315 F.3d at 19 (observing that when medical evidence is sharply
conflicted, the deference due to a plan administrator may be
especially great).
Finally, as additional evidence that Liberty Life’s decision
to terminate her benefits was “arbitrary and capricious,” Keough
offers that neither the October 1 6 , 2002 letter terminating her
LTD benefits nor the March 6, 2003 letter upholding that decision
mention that she was receiving Social Security benefits, which
can be relevant to an insurer’s disability determination.
Although a determination of disability by the Social Security
Administration can be relevant evidence, see Gannon v .
Metropolitan Life Ins. Co., 360 F.3d 2 1 1 , 215 (1st Cir. 2004),
the mere fact of a Social Security disability award is not
binding on insurers and “should not be given controlling weight
except perhaps in the rare case in which the statutory criteria
-42- are identical to the criteria set forth in the insurance plan.”
Pari-Fasano, 230 F.3d at 420. Keough had not presented any
evidence that hers is one of the rare cases in which the
eligibility criteria for Social Security benefits is identical to
the criteria outlined in the Plan. See Matias-Correa, 345 F.3d
at 12 (noting that claimant was required to satisfy the plan’s
definition of total disability rather than the Social Security
Administration’s definition). Furthermore, although a related
Social Security benefits decision may be of some value to a plan
administrator’s eligibility determination, particularly in cases
in which the Administration makes specific findings, the award
letter in Keough’s case only provided information regarding the
payment of benefits, but no information describing how the
Administration reached its eligibility determination. See
Gannon, 360 F.3d at 215. It was therefore not unreasonable for
Liberty Life to reach a different conclusion regarding Keough’s
eligibility for disability benefits than the decision reached by
the Social Security Administration.
As Plan Administrator, Liberty Life was authorized to weigh
conflicting evidence and to determine the weight accorded to the
opinions of Keough’s physicians. See Vlass, 244 F.3d at 3 2 ; see
-43- also Black & Decker Disability Plan v . Nord, 528 U.S. 8 2 2 , 834
(2003)(noting that courts may not require plan administrators to
accord special deference to the opinions of an employee’s
treating physicians). Accordingly, Liberty Life was acting
within its discretion when it relied on the opinion of D r .
Holbrook, even though he did not examine Keough and even though
he based his opinion solely on a review of the file. See Gannon,
360 F.3d at 214-15; Matias-Corea, 345 F.3d at 1 2 . It was also
reasonable for Liberty Life to rely on the information Keough
provided in her Activities questionnaire in which she indicated
that she spends approximately 12 hours a day sitting, albeit with
a lot of stretching. Keough’s own description of her typical day
is consistent with, and buttressed by, evaluations provided by
Dr. Jacuch in August 2002, and not entirely inconsistent with
some of the opinions provided by D r . Oram and D r . Trujillo.
Given Liberty Life’s authority under the Plan to use its
discretion, it was for Liberty Life alone to determine exactly
how to measure the relative strength of these contradictory
opinions.
I therefore find that Liberty Life’s determination that
Keough was not “totally disabled” and its decision to terminate
-44- her LTD benefits rests on substantial evidence and was an
appropriate exercise of its discretion as Plan Administrator.
See Gannon, 360 F.3d at 216; Leahy, 315 F.3d at 1 9 .
CONCLUSION
For all of the foregoing reasons I grant Liberty Life’s
motion for summary judgment (Doc. N o . 9 ) and deny Keough’s cross
motion for summary judgment (Doc. N o . 1 4 ) . The clerk shall enter
judgment accordingly.
SO ORDERED.
Paul Barbadoro District Judge
February 2 4 , 2005
cc: Eugene A . DiMariano, Esq. William D. Pandolph, Esq.
-45-
Related
Cite This Page — Counsel Stack
2005 DNH 032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maureen-keough-v-liberty-life-assur-nhd-2005.