The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Pending before the Court in this ERISA case are the parties' cross-motions for summary judgment: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document No. 25) and PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Document No. 26). Also pending are DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S FACTUAL AVERMENTS AND EXHIBITS THAT ARE OUTSIDE THE SCOPE OF THE ADMINISTRATIVE RECORD (Document No. 34) and PLAINTIFF'S MOTION TO STRIKE DECLARATION OF JAMES S. GEHLKE, SR. (Document No. 37). The motions have been thoroughly briefed (Document Nos. 27, 30, 35, 38, 40-47), and are ripe for disposition.
This has not been a typical ERISA case. Throughout the course of this litigation, the parties have vigorously disputed the scope of permissible discovery and the contents of the administrative record. After extensive discussion, the parties and the Court reached an understanding that Defendant Sedgwick Claims Management Services, Inc. ("Sedgwick") would conduct a second review of the administrative claim file, as supplemented, and that there would be no further discovery. It was clearly understood that the parties would be bound by the supplemented administrative record. The parties jointly submitted a proposed consent order which described the documents and information to be considered by Sedgwick.*fn1 On May 19, 2008, the Court entered a Consent Order (Document No. 13) and the case was stayed for 90 days for the purpose of conducting this second review.
Plaintiff was not satisfied by the outcome of the second administrative review and again sought to expand the record in this case. On October 9, 2008, the Court denied Plaintiff's motion for discovery and ordered that summary judgment briefs be filed. In addition to the pending cross-motions for summary judgment, Plaintiff has, for a third time, renewed his effort to expand the administrative record by submitting documents in Exhibits B and C. Defendants ask the Court to strike certain of these documents. Conversely, Plaintiff asks the Court to strike the Declaration of James Gehlke, which was submitted by Defendants to describe the operations and funding of The PNC Bank Corp. and Affiliates Long Term Disability Plan (the "Plan"). These preliminary matters concerning the scope of the record must be resolved prior to addressing the merits.
A. Plaintiff's Exhibits B and C
Plaintiff asks the Court to consider the following documents as part of the administrative record: (1) the Summary Plan Description (B1-6); (2) a May 16, 2007 letter from Plaintiff's counsel with attachments (B7-19); (3) Sedgwick's response to the letter (B20); (4) an August 9, 2007 letter from Plaintiff's counsel, with attachments (B21-23); (5) a May 23, 2008 cover letter from Plaintiff's counsel enclosing an MMPI data sheet (B24-27); (6) a November 16, 2006 letter from PNC with handwritten notes (B29-31); (7) a February 20, 2007 FMLA notice and an October 13, 2006 form completed by Dr. Catena (B32-35)*fn2; and (8) a September 24, 2008 Notice of Decision by the Social Security Administration (Exhibit C). Defendants ask the Court to strike certain of these exhibits and the related references in Plaintiff's Statement of Material Facts (¶¶ 22, 56, 58, 60, 61, 66, 75-77). Defendants do not move to strike B1-6, B11-18, or B29-31. The Court turns now to the specific contentions of the parties.
Plaintiff argues that the FMLA documents (B32-35) were submitted to Sedgwick prior to April 20, 2007, "but for some unexplained reason, were excluded from the Administrative Record." Defendants dispute that these documents were submitted prior to April 20, 2007. In any event, Defendants point out that it is undisputed that these documents were not part of the Administrative Record as of April 20, 2007 and thus, should not have been considered. The Court agrees with Defendants. The second review was clearly limited to documents that were contained in the Administrative Record.
In addition, Plaintiff argues that all of the documents may be considered as evidence of potential bias in determining what standard of review to apply. While Plaintiff is correct as a general proposition, see Kosiba v. Merck & Co., 384 F.3d 58, 67 n.5 (3d Cir. 2004) (court has discretion to consider evidence of potential biases and conflicts of interest that is not found in the administrator's record), he fails to recognize the unique procedural status of this case. Pursuant to the parties' agreement, Plaintiff obtained the benefit of a second review of his claim based upon a supplemented administrative record. In exchange, the parties agreed to be bound by that supplemented record. Both parties will be held to the terms of their bargain. Under the facts and circumstances of this case, the Court will not exercise its discretion to consider evidence of potential bias not found in the administrative record.
Finally, Plaintiff contends that Sedgwick's second review considered Babish's disability through the present time. The Court cannot agree. Reginald Givens, M.D., did conduct a phone interview of Ravi Kant, M.D., on July 1, 2008, during which Dr. Kant reported on Babish's condition after April 20, 2007. AR 45. Moreover, the July 31, 2008 letter from Sedgwick stated that Babish was able to perform his job "from March 28, 2007 through the present." AR 44. However, Sedgwick accurately summarized its duties under the Consent Order and recognized that the purpose of the interview with Dr. Kant was to consider "Plaintiff's medical condition as of April 20, 2007." AR 43. Sedgwick further recognized that it was "to perform a review of the administrative claims file for Mr. Alan Babish as of April 20, 2007." AR 43. The mere fact that Sedgwick reported the content of the phone interview with Dr. Kant does not establish that Sedgwick evaluated Babish's condition after April 20, 2007. Similarly, the passing reference to "through the present," in context, does not provide a basis for expansion of the administrative record.
Plaintiff's sole argument as to the Social Security decision in Exhibit C is that if the Court grants his motion for summary judgment, the Social Security benefits may be relevant in calculating damages. Defendant correctly points out that the Social Security decision was not issued until September 2008, is not part of the administrative record, and in any event is not determinative of liability at this stage of the case. Tegtmeier v. Midwest Operating Engineers Pension Trust Fund, 390 F.3d 1040, 1046-47 (7th Cir. 2004)("While Social Security decisions, if available, are instructive, these determinations are not dispositive"). Exhibit C will be stricken from the summary judgment record in determining liability.
In sum, the Court will strike the exhibits and related factual averments to which Defendants object. Plaintiff agreed to the Consent Order, which specified the contents of the administrative record to be reviewed by Sedgwick, and his effort to further supplement the administrative record is contrary to the May 19 and October 9, 2008 Orders of this Court.
The Court will deny Defendants' request for counsel fees. Defendants did not object to all of the exhibits submitted by Plaintiff. Moreover, there is case law from the Court of Appeals for the Third Circuit that permits consideration of materials outside the administrative record for the purpose of determining the applicable standard of review.
In accordance with the foregoing, DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S FACTUAL AVERMENTS AND EXHIBITS THAT ARE OUTSIDE THE SCOPE OF THE ADMINISTRATIVE RECORD (Document No. 34) is GRANTED IN PART. Specifically, B7-B10, B19-B28, B32-B35, Exhibit C and the corresponding references in Plaintiff's Statement of Material Facts are hereby stricken from the record.
B. GAF Score and MMPI Data
Defendants ask the Court to strike Plaintiff's "lay conclusions" regarding the purpose and meaning of his Global Assessment of Functioning ("GAF") score and his MMPI data, as set forth in ¶¶ 39, 41, 52, 68 and 74 of Plaintiff's Statement of Material Facts.
Plaintiff accurately notes that the underlying medical records which reference his GAF and MMPI results are part of the administrative record. Dr. Kant and Dr. Teuter assessed GAF scores of 50 and 53, respectively. (AR 110, 114). Dr. Teuter stated on March 1, 2007 that the results of the MMPI test were valid and confirmed her impressions of Plaintiff's condition. AR 127.*fn3
Indeed, the Consent Order required Sedgwick to consider the "raw data of Plaintiff's MMPI" as referenced in the March 1, 2007 letter from Dr. Teuter. Thus, to the extent that Defendants are asking the Court to ignore these portions of the administrative record, the request is DENIED.
Plaintiff further contends that the Court is entitled to take judicial notice of matters of science and common knowledge. In Sollon v. Ohio Cas. Ins. Co., 396 F. Supp.2d 560, 584 n.13 (W.D. Pa. 2005), Judge Standish described the GAF test by citation to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) ("DSM IV"). In Lozada v. Barnhart, 331 F. Supp.2d 325, 330 n.2 (E.D. Pa. 2004), the Court cited DSM IV to establish that a GAF score*fn4 of 41-50 indicates "serious" symptoms or any serious impairment in social, occupational or school functioning (e.g. unable to keep a job) and a GAF score in the range of 51-60 indicates "moderate" symptoms or moderate difficulty in social, occupational, or school functioning (e.g. conflicts with peers or co-workers). See also United States v. Murdoch, 98 F.3d 472, 479 & n.5 (9th Cir. 1996); United States v. Cantu, 12 F.3d 1506, 1509 n. 1 (9th Cir. 1993); United States v. Johnson, 979 F.2d 396, 401 (6th Cir. 1992) (taking judicial notice of diagnostic standards set forth in DSM IV). In United States v. Wilson, 493 F. Supp. 2d 348, 351 n.2 (E.D.N.Y. 2006), the Court explained that the MMPI is "a widely used written psychological assessment used to diagnose mental disorders. The MMPI is used to screen for personality and psychosocial disorders; it is also frequently administered as part of a neuropsychological test battery to evaluate cognitive functioning." See also United States v. Denton, 396 F. Supp.2d 987, 995 n.7 (N.D. Iowa 2005) (MMPI is "an assessment of personality characteristics and overall level of emotional adjustment"). The Court similarly will take judicial notice of these definitions and will consider the references to the GAF and MMPI results contained in the administrative record as of April 20, 2007. However, the GAF and MMPI results do not establish, as a matter of law, that Babish was disabled or that Defendants abused their discretion.*fn5
Defendants also object to the following "facts" proposed by Plaintiff that relate to the GAF and MMPI scores: (1) that Larry Nahmias, M.D., was "untrue" in stating that "formal cognitive testing" was not performed on Babish; (2) that the July 31, 2008 letter from Sedgwick "ignored" the MMPI and GAF; and (3) that Dr. Givens was incorrect in stating that "no specific testing of cognitive functioning is documented." Plaintiff's Statement of Material Facts ¶¶ 52, 68, 74. The Court will not accept these legal conclusions as undisputed facts.*fn6 To the contrary, Dr. Givens specifically noted that the medical records provided for his review included the MMPI test and repeatedly recognized that such a test had been performed. (AR 45, 46, 47), and the July 31, 2008 letter from Sedgwick specifically noted "that Alan Babish had a MMPI." (AR 44). At most, there may be a semantic dispute as to whether GAF and MMPI constitute "formal cognitive testing" but there is no basis to conclude that Sedgwick ignored or was untrue regarding the GAF and MMPI results that existed as of April 20, 2007.
Accordingly, this aspect of Defendants' Motion to Strike is GRANTED IN PART AND DENIED IN PART. The Court will take judicial notice of the description and diagnostic standards of the GAF and MMPI tests and will consider the references to those tests which are contained in the supplemented administrative record. The Court will not accept as undisputed the referenced averments in Plaintiff's Statement of Material Facts ¶¶ 52, 68, 74.
Plaintiff asks the Court to strike the Declaration of James Gehlke. Defendants argue that it may be considered for the limited purpose of determining the appropriate standard of review. As noted above, in Kosiba, 384 F.3d at 67 n.5, the Court of Appeals held that courts have discretion to consider evidence beyond the administrative record when deciding the applicable standard of review. Defendants have consistently opposed discovery on this specific topic, did not file the Gehlke Declaration until after Plaintiff filed his summary judgment brief, and never disclosed Gehlke as a potential witness. Neither party will be permitted to unilaterally supplement the administrative record which the ...