The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Even under the traditional "arbitrary and capricious" standard of judicial review of a denial of benefits by an independent third-party ERISA plan administrator to which a funding employer has granted discretionary authority to construe its terms and make benefits determinations, see Nazay v. Miller, 949 F.2d 1323, 1334 (3d Cir. 1991), a more arbitrary and capricious denial of disability benefits than the one before the Court is difficult to imagine. It goes without saying, then, that under the "heightened arbitrary and capricious" standard of judicial review that the Court finds is required in this case, and the "high degree of skepticism" engendered by the many procedural irregularities, inherent inconsistencies and unreasonable analysis of plaintiff Cynthia Jagielski's uncontradicted medical record establishing her continuing disability as a result of fibromyalgia and chronic fatigue syndrome, MetLife's thoroughly arbitrary and capricious decision must be reversed, full back disability benefits must be awarded with interest, and attorneys fees must be assessed.
II. Factual and Procedural Background
There is remarkably little dispute over the underlying facts, although the parties vigorously disagree over the inferences to be taken from those underlying facts. Unless otherwise indicated, the following facts are undisputed.
Plaintiff Cynthia Jagielski was employed by Bell of Pennsylvania for many years, until April 26, 1993, when she became disabled from her job as a Sales and Service Representative, at which time her monthly salary was $2,784. Plaintiff's Concise Statement of Material Facts (doc. no. 48), ¶ 1.*fn1 As a Bell of Pennsylvania employee, plaintiff was a participant in a Long Term Disability ("LTD") Plan sponsored by Bell and administered by third party Mutual of Omaha. The Bell LTD Plan was amended on January 1, 2001 by Bell's successor in interest, Verizon Communications, Inc., and renamed the Verizon Disability Benefit Plan, which provided for short and long term disability benefits. As of January 1, 2001, the Summary Plan Descriptions of the Verizon Plan*fn2 provided as follows:
LTD benefits begin after you have received 52 weeks of Sickness Disability Benefits. To receive benefits you must meet one of the following conditions: ! You must be unable to work in any occupation or employment for which you are or may become reasonably qualified by training, education or experience. ! As a result of your disability, you are only able to work at a job that pays less than half of your basic pay rate at the time you became disabled.
In addition, you must be under the care of a qualified physician who must provide appropriate documentation of your disability. You also must take proper care of yourself and receive proper medical treatment. Otherwise, you will not be eligible for benefits.
Plaintiff's Concise Statement of Material Facts at ¶ 3 and Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 3.
The definition of "Total Disability" in the glossary of the Verizon Plan's Summary Plan Description states that under Verizon's LTD Plan, "you are considered to be totally disabled if you are unable, due to sickness or injury documented by objective medical evidence, to perform any job for which your are or may become qualified by reason of education, training or experience, or any job that pays, on a full-time basis, 50 percent or more of your base pay." Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 3. The Verizon Plan provides that "you can continue to receive LTD benefits until you no longer qualify as disabled under the Plan or you die." Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 5.
On May 14, 1994, plaintiff submitted a claim to Mutual of Omaha for LTD benefits based upon "fibromyalgia, chronic fatigue immune deficiency syndrome," after first exhausting 52 weeks of short term disability. In a supplemental report of disability dated May 18, 1994, plaintiff's treating physician, M.P. Kahn, M.D., confirmed the diagnoses of chronic fatigue immune deficiency syndrome and fibromyalgia. Plaintiff's Concise Statement of Material Facts at ¶ 8.*fn3 Plaintiff's reported symptoms included constant pain, tiring easily, muscles that felt like they were filled with cement, tremors and "digestive problems." Plaintiff's Concise Statement of Material Facts at ¶ 9.*fn4
By letter of May 13, 1994, Mutual of Omaha informed plaintiff that it had carefully considered her claim for LTD benefits on the basis of fibromyalgia and chronic fatigue syndrome, and approved monthly benefits in the amount of $1,392.00. Mutual of Omaha also directed plaintiff to apply for Social Security Benefits, which she did.*fn5 On September 11, 1996, the Social Security Administration ("SSA") determined that plaintiff was disabled as of April 26, 1993, and was entitled to monthly Disability Insurance Benefits ("DIB") in the amount of $642.10. Pursuant to its terms, plaintiff's monthly LTD benefits under her disability Plan were offset in the amount of her DIB, and MetLife, which had assumed administration of the LTD Plan in 1995, notified plaintiff that her monthly LTD benefits would be reduced to $734.00. Plaintiff also was required to reimburse the Plan over $14,000, which she promptly did. Administrative Record ("AR") 115, 123-125.
In 1995, MetLife requested an attending physician's statement of functional capacity on its own form, and Mrs. Jagielski submitted such form by Dr. Kahn, who continued to treat her as her primary care physician. Dr. Kahn noted a diagnosis of "progressive CFIDS," fatigue, joint pains, fibromyalgia, viral symptoms, allergic rhinitis and muscle spasms, and his progress notes indicated that her condition had "retrogressed." AR, 287-88. Although MetLife denies plaintiff's "characterization," it does not deny the facts averred in plaintiff's summary paragraph 17, and the Court's review of the Administrative Record confirms the fairness and accuracy of plaintiff's following summary:
Over the ten year period that MetLife continued to pay her LTD benefits, MetLife periodically requested that Mrs. Jagielski provide an attending physician's statement of functional capacity on its own form. In response to each request, Mrs. Jagielski submitted a statement, completed and signed by Dr. Kahn, noting the same diagnoses and restrictions and limitations as in 1995 and further noting no improvement in these conditions. (Adm. Rec. at 289-90 (dated 4/96) ("retrogressed" and 3 years of symptoms, no improvement, sometimes worse, progressive weakness of hands"); 269-70 (dated 10/96) ("retrogressed" and 3 years of symptoms with no improvement, sometimes worse, weakness of hands"); 201 (11/21/96 lab tests results out of normal range); 208-09 (dated 10/29/97) ("retrogressed" and "no significant improvement in the last 4 years").
Plaintiff's Concise Statement of Material Facts at ¶ 17; Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 17.
In January 1998, MetLife scheduled an independent medical examination ("IME") for plaintiff with Dr. Noah Bass, M.D., a rheumatologist, for an "independent medical examination regarding fibromyalgia." AR at 216, 235-36. Dr. Bass physically examined plaintiff on January 26, 1998, and in his report written that same day, he took her oral history and medication history, made "Objective" findings and observations including that plaintiff had "some very minimal Heberden's nodes," "adequate range of motion at the wrists, elbows, shoulders," and "tenderness" at many points along her cervical and thoracic spines and her "bursal regions." AR 3-5. From his interview and examination, Dr. Bass, the rheumatologist to whom MetLife had sent plaintiff for an IME, made the following assessment:
It is my impression that this patient is suffering with fibromyalgia and that she meets American College of Rheumatology criteria for this diagnosis. she also suffers with kyphosis and scoliosis. . . .
With regard to her ability to perform the regular duties of her job, she is not able to perform regular duties at this time. I think that the main issue here is complete failure of any rehabilitation or attempt at rehabilitation . . and that for hope of any realistic improvement in this patient she would need a prolonged course of rehabilitation, perhaps under the guidance of a pain clinic setting that works with a psychologist . . . .
With regard to myalgia (myalgia just means muscle pain), she clearly has that. AR at 3-5, 218-19.*fn6
Once again, MetLife denies plaintiff's "characterization" of Dr. Noah's report,*fn7 but not its substance, and MetLife also notes that Dr. Noah's report, which it had commissioned as is its right under the terms of the Plan, AR 79 ("Verizon or the benefits administrator may initially require you to see a physician of its choice and on a periodic basis thereafter. If you refuse to be examined by such a physician, you may be denied benefits."), "referenced minimal objective findings." Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 19.
Following her IME and Dr. Noah's report, plaintiff continued to comply with all requests by MetLife for updated functional assessment forms, and each time, had Dr. Kahn complete and sign MetLife's forms and return them to MetLife, and said forms showed no improvement from August 1999 through October 26, 2001. In his October 26, 2001 form, Dr. Kahn noted the same diagnoses of fibromyalgia, "CFS," fatigue and chronic pain, and "tenderness over motor points." Plaintiff's Concise Statement of Material Facts ¶ 20-21; AR at 462-63.
On June 25, 2002, MetLife informed plaintiff by letter that "the administration of your Long Term Disability (LTD) claim will be transferred from Lexington, KY to MetLife's disability claim office in Glastonbury, Connecticut. . . . [and that this] move does not impact the current LTD benefits you are or may be eligible to receive." AR at 461. (MetLife admits that the letter says what it says, but denies that it means what it says, i.e., that administration of her claim was transferred to another office. Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 22). Within a year, MetLife notified plaintiff that it was updating her LTD claim, and sent to plaintiff a Chronic Fatigue Syndrome Questionnaire and an Attending Physician's Statement form, which forms were different than the ones MetLife had previously sent.
After plaintiff contacted MetLife to obtain the correct forms, MetLife faxed its Fibromyalgia Initial Functional Assessment Form to Dr. Kahn, who, after seeing plaintiff on April 11, 2003, completed and signed the form reaffirming his previous, consistent diagnoses of fibromyalgia and chronic fatigue syndrome. AR 428. Dr. Kahn also, inter alia, reaffirmed that "all criteria are meet" for these conditions, noted "trigger points 8/10 - level of pain," described her prognosis as poor, opined that plaintiff was unable to return to her past job, and noted that her treatment included physical therapy, pain medication and rest. AR 428-430, 441-445.
Plaintiff's medication included Ultram 50, Modrin, Advil, Flexerill, Vicodin and Vioxx. AR 444. Plaintiff commenced physical therapy for five sessions, but discontinued physical therapy because she could not afford co-payments for any more sessions; however, she employed "extensive use of a hot tub to relieve pain." AR 382-410; Plaintiff's Concise Statement of Material Facts at ¶ 29. MetLife denies that plaintiff used a hot tub extensively, since the progress note in the file states only that she used it 2 to 3 hours a day and did stretching in the hot tub for that period. Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 29. The Court resolves this factual conflict (actually, it is not a factual conflict but a battle of inferences) in favor of finding that 2 to 3 hours a day stretching in a hot tub is properly characterized as "extensive."
Plaintiff also submitted a report dated March 28, 2003 by Dr. Terence W. Starz, a rheumatologist and fibromyalgia specialist, who performed a musculo-skeletal evaluation of plaintiff, and agreed with all previous medical diagnoses of fibromyalgia and chronic fatigue.
AR 421. Plaintiff only saw Dr. Starz on that one occasion. Defendant's Response to Plaintiff's Concise Statement of Material Facts at ¶ 31. As MetLife points out, plaintiff did not follow through on Dr. Starz suggestion of intense physical therapy, nor did she return to see him for treatment. Id. Plaintiff explained to MetLife, in a letter received by MetLife on July 29, 2003, AR 371-378, that she could not do PT because she could not afford the co-payments, and that in 20 years, she never had gotten any significant relief from PT (even though "I have lived in physical therapy all of my fibromyalgia life"); however, she was able to purchase a hot tub in March 2002, and she embarked on a daily routine of 2-3 hours in the tub doing stretching exercises, after which she must rest, which ...