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Schwarzwaelder v. Merrill Lynch & Co.


March 9, 2009


The opinion of the court was delivered by: Judge Terrence F. McVerry

Magistrate Judge Lisa Pupo Lenihan



The Motion for Summary Judgment filed by Defendant will be denied and the Motion for Summary Judgment filed by Plaintiff will be granted, as Defendant Metropolitan Life Insurance Company's ("MetLife" or the "Administrator") denial of benefits on remand constituted an abuse of discretion in light of (a) the applicable Plan provisions and (b) the medical and occupational evidence of the Administrative Record (the "Record"). This Court will grant Plaintiff's request for summary judgement "on the issue of whether [Plaintiff] is entitled to a grant of long-term disability benefits commencing May 3, 2004." Plaintiff's Motion for Summary Judgment at 1. It will also grant Plaintiff's request for "interest, fees and costs". Id. at 2.


This case, which has been re-opened and is again before this Court following remand to the Administrator in December, 2006, involves the question of a long-term disability plan claim administrator's denial of benefits to a financial consultant. The consultant sought benefits under the language of a Plan providing them - in Plaintiff's circumstances, for a maximum of twenty-four (24) months - to an employee who is "unable to perform all of the regular duties of the Merrill Lynch job [s/he] had before [the] disability began and [is] under the continuous care of a doctor treating [the employee] within the scope of his or her speciality".*fn1 Presently before the Court are fully-briefed cross Motions for Summary Judgment.

Because the Administrator's denial of long-term disability benefits on remand constituted an abuse of discretion under the terms of the Plan, the Defendants' Motion for Summary Judgment will be denied and Plaintiff's Motion for Summary Judgment will be granted. More specifically, the Court has considered MetLife's (1) self-serving selectivity in its use and interpretation of the medical evidence, including reliance upon the solely paper-review reports of its consultants while giving scant weight to the contrary, more detailed, and consistent reports of Plaintiff's three treating/evaluating physicians, where the claim turned on Plaintiff"s mental health, and MetLife had discretion to supplement the medical evidence with independent medical evaluation ("IME"); (2) rejection of evidence self-reported by Plaintiff to her physicians where (a) MetLife had no basis for rejecting the treating/evaluating physicians' conclusions that Plaintiff's evidence was credible and (b) the Plan did not impose an evidentiary standard that excluded, e.g., the treating psychiatrist's office notes of observations and reported symptoms and events; (3) failure to provide the consultants relied upon with all relevant evidence, i.e., an accurate and complete profile of the scope and requirements of the job Plaintiff was usually/actually performing, (including, e.g., requirements and conditions reasonably related to the disability alleged) and to obtain meaningful assessment of Plaintiff's disability under her Plan, despite this Court's express guidance to the contrary; (4) continued reliance on consultant's conclusions reached with reference to a standard of disability constituting an unreasonable interpretation of the Plan language and/or one expressly refuted by Defendant, and (5) failure to respond to the treating/evaluating physicians' conclusions regarding the impact of employment-related stress on claimant's medical condition.*fn2 The Court notes that an administrator's history of biased claims administration may also properly be considered in an abuse of discretion review,*fn3 but it did not find it necessary, in its abuse of discretion determination, to consider what weight, if any, should be given to MetLife's history as a long-term disability benefit claims administrator.*fn4 The Court also notes, in reaching its case-specific recommendation, that (a) the Plan, as now interpreted by MetLife, provides a lenient disability benefit standard (i.e., a claimant need only be unable to perform any one job function of her own position)*fn5 and, conversely, (b) the performance parameters of claimant's position were quite high.*fn6

A. Statement of Facts and Procedural History

1. Initial Benefits Review and Denial

As set forth in the November 21, 2006 Report and Recommendation adopted as the opinion of this Court (the "R&R"), the long-term disability benefit plan at issue ("the Plan") was established by Plaintiff's employer, Defendant Merrill Lynch & Company, Inc. ("Merrill Lynch"), and is self-funded by Merrill Lynch, with claims administered by Defendant Metropolitan Life Insurance Company. The Plan confers upon the Administrator discretion as to both Plan interpretation and determinations of benefit eligibility. It is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq. ("ERISA"). See Glenn, 128 S.Ct. at *2347 (noting that administrators "should consider a benefit determination to be a fiduciary act (i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries")); id. at *2350 (observing that ERISA requires plan administrators to discharge their duty solely in the interest of the plan participants and beneficiaries and to provide a full and fair review of claim denials).

Plaintiff Cheryl Schwartzwaelder ("Plaintiff" or "Claimant") was actively employed by Merrill Lynch for approximately one year, i.e., from approximately November 14, 2002 through November 3, 2003, as a high-end broker and financial consultant responsible for approximately $400-$500 Million in assets.*fn7 Plaintiff represented that her treating psychiatrist advised that she was unable to continue in her high-stakes, high-pressure, high-performance-requirements position owing to increasing mental health difficulties, and that she therefore ceased work and sought disability benefits.*fn8

The medical records initially before the Administrator indicate that Plaintiff sought treatment with Dr. Goubert, a psychiatrist, and was seen approximately every two weeks beginning November, 2003. Those records further reflect Plaintiff's Beck Depression Inventory and Initial Psychiatric Evaluation documents; Dr. Goubert's treatment observations/notes; Plaintiff's Patient Health Questionnaires; and Dr. Goubert's March 8, 2004 Attending Physician Statement.*fn9 Dr. Goubert diagnosed Plaintiff with severe depression. His conclusions regarding her impairments included decreased concentration, organizational ability, and memory; together with an inability to "engage in stress situations or engage in interpersonal relations [marked limitations]."*fn10 Dr. Goubert expressly diagnosed Plaintiff's mental health condition as resulting from "work-related stress" and recommended that she not return to work as a financial consultant.*fn11 The records indicate that Plaintiff underwent an extensive and varying trial of pharmaceutical mental health treatment, including Zoloft, Lexapro, Remeron, Wellbutrin, Xanax, and Ambien.*fn12

Plaintiff received short-term disability benefits from her employer for approximately three (3) months and her disability claim was referred to the Claims Administrator on February 20, 2004. The Administrator denied her claim approximately six weeks later, on April 7, 2004, by correspondence informing Plaintiff that there was insufficient documentation to support a significant "functional impairment that would prevent Plaintiff from performing all the regular duties of her job." See Defendants' Motion for Summary Judgment ("Defendants' MSJ") at ¶¶ 13-14; R. at 51-52.*fn13

On April 19, 2004, Plaintiff's counsel notified the Administrator of Plaintiff's desire to appeal its denial of benefits. Dr. Goubert provided a letter of April 14, 2004.*fn14 In addition, on May 27, 2004, Plaintiff underwent a neuropsychological evaluation and testing performed by Michael Franzen, Ph.D., the Chief of Psychology and Neuropsychology of Allegheny General Hospital.*fn15 Dr. Franzen concluded that Plaintiff was suffering "very high levels of psychological distress related to anxiety and depression." He diagnosed her condition as severe adjustment disorder, stating that she was "markedly limited in her ability to perform complex cognitive operations" and that her cognitive state was "significantly compromised by her emotional state" and this would "significantly interfere with and limit her ability to perform at the high level of functioning she previously reported."*fn16

The Administrator obtained a medical file review/assessment (a "paper review") from Mark Schroeder, M.D., a psychiatrist, who concluded, in September, 2004, that Plaintiff had failed to "substantiate a severity of illness or impairment that would be expected to preclude [her] from working at her own occupation". R. at 95.*fn17 At Dr. Schroeder's request, a paper review of Dr. Franzen's evaluation only was obtained from John Shallcross, Psy.D., a psychologist, who opined that (a) Plaintiff's "observed symptoms . . . in the Mental Status Exam [were] not sufficient to suggest a major depressive disorder and such a disorder [was] not diagnosed", (b) the decline in IQ estimated by Dr. Franzen exceeded that normally anticipated due to an adjustment disorder, (c) the testing did not outline specific restrictions/limitations on employment, (d) the limited observed symptoms were "not of a severity that would indicate preclusion of all work capacity". . .", and (e) generally, Dr. Franzen's conclusions regarding Plaintiff's significant cognitive compromise were not "borne out by" the test data.*fn18

The Administrator upheld its denial of benefits on September 23, 2004, reiterating that the "available records submitted for review" did not "substantiate psychiatric functional impairments that would "'preclude [plaintiff] from performing all of the regular duties of her Merrill Lynch job'. . . ." R. at 104. Compare Plaintiff's Prior Brief in Opposition at ¶¶ 26-27 (attesting that Defendants never asked Plaintiff about her specific job duties, the "full scope" of her position, or the level at which she was expected to perform) with September 23, 2004 MetLife letter (noting that Plaintiff's "occupation as a financial consultant is categorized as a sedentary exertion level occupation").*fn19

2. Prior Proceedings Before the Court

The initial action was filed on December 15, 2004

In considering the Defendants' Motion for Summary Judgment, it was unclear to this Court whether the Administrator interpreted the Plan language requiring that a claimant be "unable to perform all the regular duties of [her] Merrill Lynch job" to mean disabled from (a) "one or more" regular duty, or (b) "each and every" regular duty. Indeed, the Administrator took strikingly inconsistent positions on this question during the prior proceedings. See R&R at 9-12.*fn20

The case was therefore remanded to the Administrator for an express statement of its interpretation of the Plan language and, if necessary, reconsideration of Plaintiff's disability claim in light of that interpretation in the first instance. The Court further suggested that, if the Administrator adhered to its denial of benefits, it should clearly define the Plan interpretation applied, and articulate its basis for denial with reference to Plaintiff's individual job requirements.

3. Benefit Review on Remand and Denial

On remand, the Administrator interpreted the Plan to require only that Plaintiff evidence disability from any one regular job duty.*fn21 MetLife obtained a copy of the pro forma description of the financial consultant position from Merrill Lynch.*fn22

MetLife also obtained a file review by Dr. Keven Murphy, a psychologist, who, by Report of May 16, 2007, opined that Dr. Franzen's neurocognitive testing had failed to include measures to assess malingering and that Plaintiff, given her test scores, retained the cognitive abilities to continue work in her own occupation without restrictions or limitations.*fn23 Plaintiff's physicians, Dr. Goubert and Dr. Franzen, each responded, advising that they disagreed with Dr. Murphy's report.*fn24

In June, 2007, MetLife again denied Plaintiff long-term disability benefits.*fn25 Plaintiff appealed and submitted additional August, 2007 correspondence from Drs. Goubert and Franzen*fn26 and an Affidavit dated August 17, 2007.*fn27 Plaintiff also was personally examined by Dr. James Merikangas, a Clinical Professor of Psychiatry and Behavioral Neuroscience at the George Washington University School of Medicine. Dr. Merikangas concluded that the type of "decompensation" Plaintiff described in detail was "perfectly typical for patients suffering from major depression" and diagnosed her with severe adjustment disorder with anxiety and depression (as had Drs. Goubert and Franzen).*fn28 His report of October 17, 2007 specified job duties he concluded she was unable to perform.*fn29

MetLife referred the file to another paper review, this by Dr. Reginald Givens, a psychiatrist and neurologist. In his report of November 7, 2007, Dr. Givens wrote (in language reminiscent of Dr. Schroeder's) that there is insufficient objective evidence of cognitive dysfunction that would prevent [Plaintiff] from performing occupational duties. There is no suicidal or homicidal intent, delusional thoughts, or hallucinations. The records do not show that [Plaintiff] has required inpatient or partial hospitalization during the review period in question. There is insufficient objective evidence to support significant impairment in activities of daily living as a result of a psychiatric disorder. Information in the records does not show that [Plaintiff] has been homebound as a result of a psychiatric condition.*fn30

And he concluded that in light of the absence of such objective evidence and severe symptoms, and given the average range of scores reported in Dr. Franzen's evaluation (as to which he agreed with and "deferred to" Dr. Shallcross' report), there was "insufficient objective evidence of cognitive dysfunction that would prevent [Plaintiff] from performing occupational duties". R. at 254-57.*fn31 Dr. Goubert objected to various aspects of Dr. Givens' Report by correspondence of November, 2007,*fn32 and it was supplemented by addendums in December and January.*fn33 By letter of January 18, 2008, MetLife reconfirmed its benefit denial, stating that the "medical information [did] not support functional limitations that would preclude [Plaintiff] from performing her own occupation as a financial consultant."*fn34

4. Re-Opening of the Case and Current Proceedings This case was re-opened in January, 2008 and Plaintiff's Amended Complaint was filed on March 3, 2008. Currently pending before the Court are cross-motions for summary judgment.

B. Motion for Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, a court should grant summary judgment when "there is no genuine issue as to any material fact and [ ] the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir. 2004). In considering a motion for summary judgment, the Court views all evidence in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 465 U.S. 574, 587 (1986). The party opposing summary judgment must support each essential element of that opposition with evidence of record. Celotex, 477 U.S. at 322-34. On cross motions for summary judgment, the same standards and burdens apply. See Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987).

C. Standard of Review of Administrator's Determination Under ERISA

As discussed in the Prior R&R, when a Plan vests the claims administrator with discretion, its interpretations of plan language and benefit determinations are generally subject to an "abuse of discretion" or "arbitrary and capricious" standard of review. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).*fn35 Both of these phrases are understood to require a reviewing Court to affirm the Administrator unless an underlying interpretation or benefit determination was unreasonable,*fn36 irrational, or contrary to the language of the plan.*fn37

Moreover, when the case was first before this Court, review of the benefits determination under an abuse of discretion standard, or some modified standard of lesser deference, was governed by Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir. 2000), which established a "sliding scale" of deferential review turning on evidence of structural conflicts of interest and/or procedural anomalies.*fn38

This past summer, however, the Supreme Court provided further guidance on judicial review of an Administrator's decision under an abuse of discretion standard. In Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2350 (2008) the Court directed, with express reference to the Restatement (Second) of Trusts § 187, that a conflict of interest should simply constitute one of several factors in evaluating whether the administrator has procedurally or substantively abused its discretion in the decision-making process, but that it should not trigger a change in the standard of review. It further noted that both trust law and administrative law (on which judicial review of these ERISA decisions are based) require judges, in reviewing the lawfulness of benefit denials, to "tak[e] account of several different, often case-specific, factors, reaching a result by weighing all together." See id. at *2351 (citing Restatement §187).*fn39

The factors referenced by the Supreme Court in affirming the Sixth Circuit's reversal of the District Court's grant of summary judgment for MetLife included: MetLife's (a) emphasizing a treating physician's report favoring denial while deemphasizing those contrary, "more detailed treating physician's reports"; (2) failure to provide its experts with all relevant evidence; and (3) failure to take into account the effects of stress on the claimant's medical condition. See 128 S.Ct. at 2352; see also id. (noting that these and other "serious concerns" appropriately weighed in the Circuit Court's setting aside of MetLife's discretionary denial of benefits).

At bottom, and as noted supra, the question before this Court is whether the Administrator's decision was reasonable. See Glenn, 128 S.Ct. at *2360 (Scalia, J., dissenting) (noting that "unreasonableness alone suffices to establish an abuse of discretion") (emphasis in original); id. at *2356 (Roberts, C.J., concurring) (concluding that conflict of interest was irrelevant and unnecessary to Sixth Circuit's reversal where MetLife's decision "was not the product of a principled and deliberative reasoning process") (quoting 461 F.3d 660, 674).*fn40 The Court is mindful that the question before it is whether Plaintiff presented sufficient evidence of her disability to MetLife such that its denial of benefits was unreasonable.*fn41 The burden is on Plaintiff to demonstrate that MetLife's denial of benefits was arbitrary and capricious. See Moskalski v. Bayer Corp., 2008 WL 2096892, *4 (W.D. Pa. May 16, 2008).

D. Analysis

In reviewing the administrator's conduct during the decision-making process and evaluating whether it reached a reasonable decision, the Court has carefully considered the following:

1. Inappropriately Selective Consideration of Evidence

The Court finds MetLife's selective consideration of the available evidence, including reliance upon the solely paper-review reports of its experts while giving scant weight to the contrary, more detailed, and consistent reports of claimant's three treating/evaluating physicians, troubling;*fn42 particularly as it had discretion to supplement the medical evidence with an independent medical evaluation ("IME") but elected to forego other personal evaluation of Plaintiff's mental health.

Administrators of ERISA plans need not afford special deference to the claimant's treating physician, and are under no "discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation". Black & Decker Diability Plan v. Nord, 538 U.S. 822, 834 (2003) (cited in Michaels v. Equitable Life Assur. Soc., 2009 WL 19344 (3d Cir. Jan. 5, 2009)). By the same token, however, administrators may not "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of treating physicians." Id.; Michaels, 2009 WL 19344 at *9; id. at **8-9 (noting that administrator gave determining weight to conclusions of non-examining experts over those of claimant's treating physicians, and questioning the "discredit[ing] of substantial evidence" in setting aside District Court's affirmance of the benefit denial); Moskalski, 2008 WL 2096892, *9 ("As a corollary principle, the selective, self-serving use of medical information is evidence of arbitrary and capricious conduct."). In addition, a decision to forego an IME and conduct only a paper review, while not rendering a denial of benefits arbitrary per se, is another factor to consider in the Court's overall assessment of the reasonableness of the administrator's decision-making process. Glenn v. MetLife, 461 F.3d 660, 671 (6th Cir. 2006).*fn43

The Courts have frequently expressed concern where, as here, the administrator denies a claim with reliance on the reports of paper-review consultants, in opposition to the treating and examining physicians' consistent and concurring opinions that the claimant is disabled. See, e.g., Elms v. Prudential Insur. Co. of America, 2008 WL 4444269, *15, *18 (E.D. Pa. Oct. 2, 2008) (noting administrator's selective use/interpretation of reports as a "procedural irregularity" under Post, and observing that "[it was] important to note that no doctor who ha[d] actually treated [plaintiff] or examined her in person, as opposed to performing a 'file review', ha[d] found her to be capable . . . of performing her work-related tasks"); Winkler v. Met. Life Ins. Co., 2006 WL 509387 (2d Cir. Mar. 1, 2006) (vacating decision as arbitrary where it was based "entirely on the opinions of three independent consultants who never personally examined [plaintiff], while discounting the opinions" of the treating and examining physicians who assessed psychiatric disability, including evidence of decompensation and depression).*fn44

Courts have noted the particular appropriateness and helpfulness of an IME where the disability claim encompasses significant inherently subjective complaints. See, e.g., Klinger v. Verizon Communications, Inc., 2007 WL 853833, *3 (E.D. Pa. Mar. 14, 2007) (noting that administrator in subjective-symptom disability case who conducts an IME "avoid[s having to make] the uncomfortable argument . . . that [it] reasonably gave greater weight to the opinions of physicians who have not physically examined the plaintiff than to those . . . who did"); Smith v. Bayer Corp. Long Term Disability Plan, 275 Fed.Appx. 495, 508 (6th Cir. 2008) (finding that administrator "arbitrarily and capriciously rejected" plaintiff's "reliable evidence" and "breached its fiduciary duty" to ensure "that reliance on its experts' advice was reasonably justified" where none of its several consultants personally evaluated plaintiff alleging mental health disability);*fn45

Adams v. Metropolitan Life Ins. Co., 549 F.Supp.2d 775 (M.D. La. 2007) (explaining that where "case involves subjective accounts . . . the fact that only a file review was conducted is relevant") (citing Calvert , 409 F.3d at 294 (taking into account that physician who concluded claims of subjective pain were not credible had never met or examined plaintiff)); Smith v. Continental Cas. Co.,450 F.3d 253, 263 (6th Cir. 2006) (holding that where credibility determination was key component of assessing disability, reliance solely on file review was arbitrary and capricious).

In addition, and as discussed infra, the Administrator gave extremely short-shrift to the job-specific disability determinations consistently reached by each of the three physicians to personally treat or examine Plaintiff. By omitting discussion of either (a) job-performance-specific disabilities identified by all three concurring examining physicians; and/or (b) all aspects of Plaintiff's underlying mental health diagnosis (e.g., cognitive and emotional impairments, and restriction from the inherently stressful work environment of her occupation),*fn46 MetLife appears to have failed to seriously consider these physician's conclusions. See McGuigan v. Reliance Std. Life Ins. Co., 2004 WL 2228381, *6 (E.D. Pa. Oct. 6, 2003) (discussing same as evidence of biased review process); Elliott, 473 F.3d 613 (finding denial arbitrary because administrator failed to apply medical evidence to correct occupational standard and gave greater weight to non-treating physician's opinion for no apparent reason and without evidence of "a process that reason[ed] from the patient's condition to her work ability"). This was inconsistent with its duty to both identify its specific objections to and disagreements with the claimant's medical evidence, and to base those specific objections/disagreements on reasonable/rational grounds. Cf. Skretvedt v. E.I. DuPont de Nemours and Co., 268 F.3d 167 (3d Cir. 2001) (where all medical evidence supported disability, and administrator was unable to point to any "truly conflicting medical evidence", denial was "without reason" and "unsupported by substantial evidence"); Rudzinski v. Met. Life Ins. Co., 2007 WL 2746630, *13-15 (N.D. Ill. Sept. 14, 2007) (finding denial arbitrary and noting that (1) paper consultant improperly relied upon absence of objective validation, "selectively" cited to testing neuropsychologist's results/conclusions, and "glossed over" treating physician's findings; and (2) MetLife inappropriately relied on flawed consultant's opinion and rejected "numerous competent records" and "multiple written opinions" from "physicians who actually examined plaintiff"); Mishler, 2007 WL 518875, *9 (noting that although administrator may credit "contrary evidence from a non-treating physician", where such physicians, rather than relying on contrary evidence "cite to the absence of information", their views "do not serve to rebut . . . treating physician's opinion" and defendant "has not offered a reasoned explanation for its decision").*fn47

2. Rejection of Subjective/Self-Reported Evidence Without Reasonable Basis

The Court is also highly concerned by the Administrator's rejection of evidence self-reported by Plaintiff to her treating/evaluating physicians where (a) MetLife had no basis for rejecting those observing-physicians' conclusions that Plaintiff's evidence was credible and (b) the Plan did not impose an evidentiary standard that excluded, e.g., the treating psychiatrist's office notes of observations and self-reported symptoms and events. See, e.g., Adams v. Metropolitan Life Ins. Co., 549 F.Supp.2d 775 (M.D. La. 2007) (finding for plaintiff where MetLife's benefit denial relied on multiple paper-review consultants who disregarded "subjective" and "self-reported" evidence, and rejected conclusions of treating/evaluating physicians).

As discussed, supra, the consultants on which MetLife expressly relies, in determining that Plaintiff failed to adequately support her claim, repeatedly dismissed Plaintiff's subjective and/or self-reported evidence. See R. at 217-19 (MetLife's Final Denial Letter of January 18, 2008 , repeatedly noting insufficiency of "objective evidence" of impairment); id. at 218 (noting Dr. Given's rejection of Dr. Goubert's "opinion that [Plaintiff] could not function socially and could not sleep regularly, had bouts of crying and could not engage in activities that she spent significant time on" as not supported by "sufficient objective evidence"); id. at 243 (Dr. Givens' December 7, 2007 Report rejecting conclusions of Dr. Merikangas' personal evaluation of Plaintiff as reporting "subjective complaints" of mental health symptoms without providing sufficient "objective evidence").*fn48

And as noted supra page 2, the Plan's standard of eligibility for long-term disability benefits is "if you are unable to perform all of the regular duties of the Merrill Lynch job you had before your disability began and are under the continuous care of a doctor treating you within the scope of his or her specialty." See R. at 131 (Plan document). The Plan further advises the employee that to submit a claim the employee and her doctor need to complete the application, and "additionally" the employee "may be required to take a medical exam administered by a doctor chosen by the claims administrator to determine" eligibility.

Many courts have noted the general inappropriateness of an insurer's dismissal of the claimant's self-reported/subjective evidence. See Adams, 549 F.Supp.2d at 793 ("A plethora of cases have held that subjective evidence cannot be discounted solely because it is subjective. Accordingly, MetLife's wholesale ignorance of the plaintiff's subjective complaints was in error."); Kinser, 488 F.Supp.2d at 1381 (finding termination of benefits for lack of "objective medical evidence or formal mental status examination" arbitrary and capricious where treating psychiatrist's evaluations were clear, psychiatric conditions are "not easily proven by purely 'objective' measures", medical records did reveal "objective" clinical observations of treating psychiatrist, and MetLife could have required personal evaluation but did not).*fn49

They have also held it unreasonable to reject Plaintiff's self-reported evidence where, as here, the Administrator has no basis for believing it to be unreliable. See, e.g., Adams, 549 F.Supp.2d at 792 (noting plaintiff's assertion that MetLife "improperly 'rejected [her] complaints of pain and her description of her limitations even though [. . .] no one ha[d] questioned her [credibility] or pointed out any inconsistencies between her reports and the objective findings'"); id. at 794 (holding that although "the defendant was free to discredit the plaintiff's subjective complaints", where "the defendant offers no basis to challenge the plaintiff's subjective accounts . . . or the medical opinions that have documented" them, it cannot "resort[] to the [other] tactic [of] discounting the plaintiff's accounts . . . altogether."); Ondersma v. Met. Life Ins. Co., 2007 WL 4371422, *5 (N.D. Cal. Dec. 12, 2007) (noting, in discussion plaintiff's prima facie case, that to extent treating physician's opinions were based on symptoms not personally observed, there was no basis to disregard such opinions because there was no basis to find plaintiff not credible).

Similarly, they have held it unreasonable to reject Plaintiff's treating/examining physician's notes of Plaintiff's self-reporting and subjective observations, or other assertedly "subjective" evidence, where, as here, where the applicable Plan does not restrict the type of evidence that may be used to demonstrate disability. See, e.g., Glenn v. MetLife, 461 F.3d 660 (6th Cir. 2006) (concluding that rejection of treating physician's assessment of role of work- related stress in Plaintiff's condition was unreasonable where Plan provided only that Plaintiff "must be under the regular care of a qualified physician under a course of treatment appropriate for the disability" and must support claim with "current medical documentation"); id. at 673 (noting that Plan did "not say that self-reported or 'subjective' factors should be accorded less significance than other indicators"); Cohen v. Standard Ins. Co., 155 F.Supp.2d 346, 354 (E.D. Pa. 2001) (noting that insurer improperly rested denial on absence of "objective medical evidence" regarding risk to plaintiff from work stress where plan had no such requirement) (citing Mitchell); Adams, 549 F.Supp.2d at 793 (where MetLife pointed to no plan provision "limiting the record . . . to objective data", subjective accounts and assessments by her doctors should have been considered).*fn50

See also discussion infra Section D (5).*fn51

3. Failure to Provide All Relevant Evidence to Consultants

The next area of concern is the Administrator's failure to provide the consultants relied upon with all relevant evidence, i.e., an accurate and complete profile of the scope and requirements of the job Plaintiff was actually performing, (including, e.g., performance parameters and conditions reasonably related to the disability alleged), despite this Court's guidance to the contrary. As noted above, the disability standard of the Plan language at issue, as interpreted by the Administrator, is whether the employee was "unable to perform" any one of the regular duties of the "Merrill Lynch job [s/he] had before [the] disability began".*fn52

Although on remand MetLife has expanded its characterization of Plaintiff's position from a "sedentary position"*fn53 to the general job description for a "financial consultant" with Merrill Lynch, and outlined further job duties in its June 8, 2007 Denial Letter, the Administrative Record reflects reliance on consultant's opinions predicated on (a) at worst, no and (b) at best, incomplete occupational information. See discussions of consultant's reports, supra. In addition, Plaintiff presented significant evidence that her job (i.e., the "job she had" in the language of the Plan) at the time of the onset of her disability encompassed relevant duty/performance requirements not fully reflected in the general job description(s). See, e.g., R. at 303-05 (Plaintiff's August 17, 2007 Affidavit).*fn54 In electing to again disregard, rather than meaningfully communicate/assess the scope and nature of the actual job duties Plaintiff was performing/meeting for Merrill Lynch, MetLife did not adhere to the fiduciary guidelines applicable to its ERISA benefit decision.*fn55

As noted supra n. 19, the Third Circuit has held that assessment of a claimant's inability to "perform the material duties of his/her regular occupation" requires consideration of the "usual work that the insured is actually performing immediately before the onset of disability." Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381, 387 (3d Cir. 2003) (emphasis added); id. (noting that "[b]oth the purpose of disability insurance and the modifier 'his/her' before 'regular occupation'" make that definition clear). See also Kalein v. Tenet Employee Benefit Plan, 2007 WL 4142770, *5, n. 3 (E.D. Pa. Nov. 21, 2007) (explaining Lasser as requiring that regular occupational duties be determined "from the perspective of the employee, [looking] at what work he is 'actually performing' and 'in which he was actually engaged'") (quoting Lasser) (emphasis added).

And our sister Court has recently held an Administrator's failure, under similar Plan language, to duly consider evidence of Plaintiff's specific, actual job responsibilities/duties to be an abuse of discretion. See Elms v. Prudential Insur. Co. of America, 2008 WL 4444269, *16 (E.D. Pa. Oct. 2, 2008) (concluding, under Plan language providing benefits with disability from material/substantial duties of "your occupation", that administrator's assertion that claimant was capable of sedentary office-centric job was a "gross over-simplification" given the documentation in the record of the scope of plaintiff's actual job performance); id. at *5 (noting that the administrator "ignored [p]laintiff's contentions, supported by the record" that defendant's characterization of her job - based on the written job description and telephone conversations with her employer - was "inaccurate" and omitted additional job requirements from which she was disabled, and that the administrator failed to "substantively address" those aspects of her job).*fn56

In addition, the Court notes that Plaintiff's position as a financial consultant was, by her uncontroverted evidence, and even by the job descriptions provided by her employer, patently distinguishable from that of a comparatively uneducated, unskilled, low-wage employee (such as a grocery store clerk or fast-food worker). MetLife's reliance on consultant's evaluation language that appears to make minimal, if any, distinction suggests another way in which it fell short of a principled and deliberative reasoning process. Compare, e.g., R. at 217-19 (MetLife's Denial Letter of January 18, 2008 citing to Dr. Givens's report and explaining, as basis for benefits denial, that Plaintiff retained the "functional abilities to engage in occupational duties requiring understanding and memory, concentration and persistence, social interaction and adaptation");*fn57

MetLife's Concise Statement at ¶ 52 (citing Dr. Given's observation, in concluding that Plaintiff failed to provide sufficient objective evidence of disability, that her IQ was in "average range and [Plaintiff's] job duties do not specify a specific [sic] IQ that will be required to perform her occupational duties"); R. at 219 (MetLife's Denial Letter of January 18, 2008 citing same) with R. at 321 (August 13, 2007 Letter of Dr. Goubert reiterating that his opinion, based on psychiatric treatment sessions with Plaintiff throughout the two-year disability period, was that she was "anxious, self-doubting, easily tearful, sleep deprived and forgetful" and "[unable] to maintain her composure in stressful situations or to carry out demanding cognitive functions", such that she could not fulfill her duties to "high net-worth clients, large unions, and city and municipal authorities", "resolve complex financial issues with consequences in the tens or hundreds of millions of dollars", or work the more than 60 hours per week necessary to succeed at her job);*fn58 R. at 248 (November 21, 2007 letter of Dr. Goubert in sharp disagreement with Dr. Givens: "I find especially comical Dr. Givens' conclusion that because [Plaintiff] scored in the average IQ range (101) this somehow means she had no functional limitations at work. Maybe if all she were required to do was to prepare and serve hamburgers at Wendy's this comment might mean something, but an average IQ of 101 is hardly what I would consider adequate to carry out [Plaintiff]'s duties. My opinion is that her baseline IQ before the onset of symptoms in 2003 was almost certainly significantly higher than 101. I cannot imagine how she could have built a portfolio in the hundred of millions of dollars, and managed assets for very sophisticated clients, with an average IQ."); R. at 268 (Report of Dr. Merikangas, noting that "in particular a person with [Plaintiff]'s level of impairment could not have performed a the high level required by her employer . . . in managing a portfolio in the hundreds of millions of dollars, or in the business development activities required to generate new business or maintain her existing clients. These job duties, much like the job duties of a surgeon or chief executive of a corporation, require the highest level of mental acuity, stamina and emotional stability. [Plaintiff] lacked these necessary qualities. Given the very demanding nature of her job duties and the combined demands made by these duties it would not have taken much in the way of impairment for [Plaintiff] to be considered disabled under [the Plan]. [Plaintiff]'s level of impairment far exceeded the level of impairment that would have prevented her from performing not merely one of her duties but many of her duties.).*fn59

4. Reliance on Expert Conclusions and/or Determination Premised on Incorrect Standard

As discussed, supra at nn. 17-19, this Court previously directed MetLife's attention to language in the consultative reports of Drs. Schroeder and Shallcross which strongly suggested that their conclusions were reached with reference to a standard of disability constituting an unreasonable interpretation of the Plan language (i.e., a "complete disability from any gainful employment" or "Social Security disability" standard) and/or one subsequently expressly refuted by Defendant (i.e., a "disabled from each and every duty of own position" standard). See R&R at 4-5; 12 and n.15.

Yet the Administrator continues to expressly, inappropriately rely on these unamended reports, and subsequent reports containing similar language suggestive of an equally inappropriate standard.*fn60 Cf. Sanderson v. Continental Casualty Corp., 2005 WL 2340741, *5 (D.Del. Sept. 26, 2005) (noting administrator's continued reliance after remand on flawed consultant's report, without seeking reassessment, and finding denial arbitrary and capricious); Elliott, 473 F.3d 613, 616 (concluding MetLife's denial was arbitrary where it relied on paper-review consultant who assessed disability under erroneous standard).*fn61

5. Absence of Reasonable Basis for Rejection of /Failure to Address Treating/Evaluating Physicians' Conclusions Regarding Work-Related Stress

Plaintiff's treating/evaluating physicians repeatedly opined that Plaintiff's mental health disability rendered her unable to perform particularized aspects/components of the job she was performing at the onset of her disability and unable to work under its inherently stressful conditions. See supra. The first page of the Administrative Record, Plaintiff's Diary Review- Report in this case, notes Dr. Goubert's conclusion that Plaintiff's condition "resulted from work related stress" and that she was "unable to [return] due to lack of ability to cope with stress." R. at 1. Her treating physician further concluded that Plaintiff "either had to give up her job and income or face potentially life-threatening consequences" because her job duties and their related pressures "as a whole were literally destroying [Plaintiff]'s mental health."*fn62

"It is a basic tenet of insurance law that an insured is disabled when the activity in question would aggravate a serious condition affecting the insured's health." Lasser, 146 F.Supp.2d at 628. Yet MetLife concluded that Plaintiff's benefit claim failed for lack of "supportive documentation" and rejected related evidence as "subjective" rather than respond to the treating/evaluating physicians' conclusions regarding the impact of employment-related stress on claimant's medical condition.

This conclusion "unjustifiably implies" that Dr. Goubert's "observations and notations" regarding work-related stress did not constitute "supportive medical documentation." Glenn v. MetLife, 461 F.3d 660, 672-73 (6th Cir. 2006) (concluding that MetLife arbitrarily dismissed stress as an "unsupported" and "subjective factor", given treating physicians' unwavering opinion that job stress was significant factor to claimant's condition, i.e., that claimant could not work in an environment that would cause any significant psychological stress or demands). In this case, as in Glenn, although it is "unclear from the record what sort of documentation MetLife would have found sufficient to establish the negative effect of stress on [claimant]'s medical condition, the Plan itself does not restrict the type of evidence that may be used to demonstrate . . . disability." Glenn, 461 F.3d at 673 (noting that plan required only "current medical documentation" and that claimant "be under the regular care of a qualified physician . . .").

Plaintiff was employed in the very high-stakes, high-pressure, fast-paced, volatile, longhoured, and generally mentally- and emotionally-demanding career of a financial consultant in a major brokerage institution.*fn63 Her treating/evaluating physicians assessed the stressful nature of that position, deemed it causal to her mental health symptoms and diagnoses, and concluded that (a) Plaintiff was unable to continue to perform under the conditions of that occupation and (b) to attempt to do so would risk serious further consequences to her health.*fn64 The Administrator's failure to meaningfully address these considerations was arbitrary and capricious. See Chapman, 2008 WL 141632 at 6 (granting plaintiff's motion for summary judgment under arbitrary and capricious standard where administrator failed to consider "all the essential duties" of claimant's occupation as financial consultant); id. (noting that consultant "offered no opinion" on treating physicians' uniform conclusion "that a return to a high-stress work environment would be harmful" and "failure to address that issue was arbitrary and capricious"); McGuigan, 2003 WL 22283831, *6-9 (concluding that "nature of the claim decision" was "arbitrary and capricious" and that defendant performed "self-serving, selective and incomplete review" of medical records where it ignored treating physician's conclusion regarding the risk occupational stress posed to plaintiff's health); Kalish v. Liberty Mutual Assurance Co. of Boston, 419 F.3d 501, 509 (6th Cir. 2005) (noting that commentary by reviewer contained little more than conclusory assertions and at no point explained how someone with plaintiff's condition could function on a daily basis in the "high-stress environment" of former position).*fn65

E. Attorney's Fees and Costs

An award of attorney's fees and costs in an ERISA action is discretionary. 29 U.S.C. § 1132(g)(1). In making the determination of whether a party is entitled to such fees, the Court considers the following factors: (1) the non-prevailing party's bad faith or culpability; (2) the ability of that party to satisfy an attorney's fee award; (3) the deterrent effect of such award on that party; (4) the benefit conferred on members of the plan as a whole; and (5) the relative merits of the parties' positions. Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983); Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008).

In this case, the Court concludes that all but the fourth factor weigh in favor of an award of fees. More particularly, this Court concludes that the arguments made by the parties in their briefings to the Court and the Administrative Record provide sufficient justification for an award as follows:

As noted above, MetLife's decision was arbitrary and capricious in light of clear ERISA case law.*fn66 In addition, the Administrator elected to disregard this Court's specific pre-remand directions (e.g., it failed to meaningfully assess Plaintiff's prima facie evidence of disability in the context of the demands of the job she was actually performing at the time). The Administrative Record indicates that throughout its review of Plaintiff's claim, MetLife engaged in selective and self-serving examination/utilization of the available evidence.*fn67 It is able to satisfy the award. Finally, the Court reasonably expects that an award of fees in this case may have a deterrent effect on repeated abuse of discretion in ERISA disability benefit cases by this insurer. It notes that, in addition to the hardships suffered by claimants wrongfully denied insurance compensation for lost wages, patently unreasonable denials of insured disability benefits and the litigation thereof are, as in this case, a significant drain on limited judicial resources. See Adams v. Metropolitan Life Ins. Co., 549 F.Supp.2d at 795 (noting, in awarding fees, that MetLife had repeatedly "received an adverse judgment for very similar conduct") (citing Glenn and several other cases).


For the reasons hereinabove set forth, this Court concludes that the Administrator did not engage in a principled reasoning process on remand or reach a reasonable result, but, rather, abused its discretion, and that fees and costs are appropriate under the circumstances of this case.


IT IS HEREBY ORDERED, ADJUDGED and DECREED THAT the Defendants' Motion for Summary Judgment is DENIED and the Plaintiff's Motion for Summary Judgment is GRANTED;

AND THAT Plaintiff is hereby granted an award of long-term disability benefits commencing May 3, 2004 for the two-year eligibility period, subject to such offsets as are permitted in the Plan, if any, together with prejudgement interest;*fn68

AND THAT Plaintiff is entitled to an award of attorney's fees and costs, with Plaintiff to file on or before March 30, 2009, an appropriate petition with supporting documentation, and Defendant may reply thereto on or before April 20, 2009.

SO ORDERED this 9th day of March, 2009.

Terrence F. McVerry United States District Judge

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