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Arlene Miller v. Mellon Long Term Disability Plan and Global Head of

September 15, 2011


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

[ECF Nos. 54 and 57]


KELLY, Magistrate Judge

Plaintiff, Arlene Miller ("Miller" or "Plaintiff"), commenced this action alleging a violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). She contends that her long term disability benefits were wrongfully terminated and seeks a determination of her rights to past and future benefits under the terms of her former employer‟s disability insurance plan. Pending before this Court are cross-motions for summary judgment filed by Miller [ECF No. 57] and the Mellon Long Term Disability Plan ("the Plan") and Global Head of Compensation and Benefits (collectively, "Defendants") [ECF No. 54]. For the reasons that follow, Plaintiff‟s Motion for Summary Judgment is denied and Defendants‟ Motion for Summary Judgment is granted.


Miller was employed by Mellon Financial Corporation ("Mellon") as a Senior Accounts Payable Coordinator until February 27, 2004. Beginning March 1, 2004, Miller reported that she was unable to work and applied for short-term disability benefits for an undisclosed illness. [ECF No. 56-2, p. 2]. These benefits were granted on March 26, 2004, for the period March 1, 2004, through April 21, 2004. [ECF No. 56-2, p. 15-16]. On April 22, 2004, Miller‟s primary care physician, Alan Seymour, M.D., responded to an inquiry from CIGNA, the Claims Administrator of the Plan, as to the nature of Miller‟s disability. Dr. Seymour opined that Miller was suffering from fibromyalgia pain and depression and estimated her return to work date as June 1, 2004. [ECF No. 56-2, p. 19]. Based upon his reporting, Miller‟s benefits were extended. [ECF No. 56-2, p. 24]. On June 24, 2004, Dr. Seymour submitted a follow-up report, stating that because of neuropathy and depression, Miller was referred to a neurologist and psychiatrist. Dr. Seymour also stated that Miller could return to work on August 1, 2004. [ECF No. 56-2, p. 29]. Miller‟s short term disability benefits were continued through July 31, 2004. [ECF Mo. 56-2, p. 30].

Two weeks before her return to work date, Miller submitted a claim for Long Term Disability ("LTD") benefits. On July 13, 2004, CIGNA requested that she submit additional medical information to support her claim. [ECF No. 56-2, p. 32]. CIGNA informed Miller that she would need to contact her physicians and ask for their cooperation in forwarding medical records so that CIGNA could receive the required documentation no later than August 27, 2004, the commencement of the LTD benefit eligibility period. Id. On August 4, 2004, CIGNA notified Miller that it had not yet received any medical documentation. [ECF No. 56-3, p. 2]. CIGNA also faxed a request for information to "Dr. Gudasblotch," a neurologist Miller indicated she had consulted with on one occasion. Neither the neurologist nor Miller‟s primary care physician responded to CIGNA‟s request. CIGNA repeated its direct requests for medical information from Miller‟s physicians on August 27, 2004. [ECF No. 56-3, pp. 3, 10, 16]. On September 2, 2004, Sheila Miller, the Plan Manager, notified Plaintiff that as a result of the absence of medical documentation of her disability, her claim for LTD benefits was denied. [ECF No. 56-3, p. 28-31]. The notification detailed the Plan requirements concerning proof of disability as well as proof that she "is under the regular care and attendance of a legally qualified physician." *fn1 Additionally, Plaintiff was informed of her right to appeal the decision and the nature of appropriate medical evidence of disability.

Eight weeks later, Miller submitted an appeal by letter dated October 29, 2004. Miller explained that because of continuing pain and depression, she was unable to work. [ECF No. 56-3, pp. 32-33]. She indicated that she had scheduled an appointment with a psychiatrist and had been seen by a neurologist. In response, on November 30, 2004, Mellon provided her with an additional 45 days to document her medical condition and to establish that her prior August 1, 2004, return to work date was not possible. [ECF Mo. 56-3, p. 34]. On February 28, 2005, Mellon informed Miller that it had not received any additional medical information and that her claim would be reviewed by its Corporate Benefits Committee based upon the information contained in her file to date, along with her appeal letter. [ECF No. 56-3, p. 37-38]. Subsequently, on March 23, 2005, the Plan Manager received a letter from M. Sabanayagam, M.D., a psychiatrist, who had examined Miller in December 2004, and determined that she exhibited signs of depression. [ECF No. 56-3, p. 39]. He diagnosed her with "Major Depression Single Episode," and indicated that she was under medication management and required supportive psychotherapy. Dr. Sabanayagum did not state that Miller was disabled but noted that she "is unable to concentrate in her job functions, easily forgetful poor attentions to her look very distractable. Since then she was seen four time [sic et passim]."

On or about April 13, 2004, Mellon learned that Miller had been denied Social Security Disability benefits, based on a finding of insufficient evidence that she could not work at a job that "would involve less stress." [ECF No. 56-3, p. 40-43].

In conjunction with Miller‟s appeal of the denial of LTD benefits, Life Insurance Company of North America, Mellon‟s LTD insurance carrier, scheduled an independent functional capacities evaluation ("FCE") with Gary Welch, PT. [ECF No. 56-3, p. 51]. The FCE exam revealed that "with the exception of lifting," she had no physical restraints. [ECF No. 56-4, pp. 3-4]. An independent psychological evaluation ("IME") was also scheduled with Robert Gordon, Psy.D., on May 14, 2005. [ECF No. 56-3, p. 51]. The psychological IME agreed that Miller was suffering from depression and that, in addition to her current medication regimen, she was in need of individual psychotherapy for a period of five months. [ECF No. 56-4, pp. 27-33]. Mellon‟s Plan Manager requested that CIGNA provide an assessment of the accuracy of the FCE and IME. [ECF No. 56-5, p. 9]. This "paper review" of both exams was performed by two separate teams comprised of a doctor, a registered nurse and an LTD case manager. While the FCE assessment team accepted the finding that Miller was physically capable of sedentary work, the IME review team determined that the findings of the psychological exam were inconclusive as to her inability to work due to depression and anxiety. [ECF No 56-4, pp. 36-39, ECF No. 56-5, p. 10].

On June 14, 2005, Mellon‟s Corporate Benefits Committee reviewed Miller‟s appeal, including her application for LTD benefits, the supporting medical documentation and IME, and the assessment teams‟ findings. The Corporate Benefits Committee reversed the original denial of LTD benefits and awarded LTD benefits retroactively from the date of Miller‟s initial eligibility in August 2004. [ECF No. 56-5, pp. 12]. In the determination letter, however, Miller was informed that pursuant to the terms of the Plan, after receiving LTD benefits for two years, the Plan would require her to then establish: on the basis of objectively verifiable medical evidence, your inability "to engage in any occupation or perform any work for compensation or profit for which he is or may become reasonably fitted by education, training or experience." This is generally referred to as the "hard test." Thus, after the two year period, even if you still cannot perform your former Mellon job, you would cease to be eligible for LTD Plan Benefits if you are determined to be capable of performing any job in the marketplace..

CIGNA in its capacity as administrative services provider, will be contacting you in the second quarter of 2006 to start the process of collecting medical evidence to determine if your LTD Plan benefits must be continued after August 6, 2006, under the "hard test" described above.

[ECF No. 56-5, p. 13]. The Corporate Benefits Committee determination letter also stated that Miller "should appeal the denial of Social Security Disability benefits." As directed, Miller appealed the denial of Social Security Disability benefits. The appeal was successful, and on August 8, 2005, she was awarded Social Security Disability benefits retroactive to August 2004.*fn2

[ECF No. 56-5, pp. 14-15].

From the date Miller was granted LTD benefits in June 2005, through October 2006, there is no evidence that Miller remained under the "regular care and attendance of a legally qualified physician" as required by the Plan. Indeed, there is no evidence that Miller consulted or treated with her psychiatrist after his March 2005 letter to CIGNA regarding Miller‟s diagnosis of "single episode" depression. Similarly, on March 14, 2006, a CIGNA claim manager learned that while Miller was still complaining of depression and fibromyalgia, memory loss and confusion, she last saw Dr. Seymour, her primary care physician, in the fall of 2005 and she had not obtained any other medical treatment. [ECF No. 56-5, p. 18].

CIGNA contacted Dr. Seymour by facsimile dated March 14, 2006, requesting medical information and a physical ability assessment. [ECF No. 56-5, p. 19]. No response to this request was ever received.

On March 20, 2006, CIGNA wrote to Miller and reiterated that the definition of "Totally Disabled" would change for her disability claim in August 2006, and that for benefits to continue, she would be required to establish that she was unable to engage in "any occupation." *fn3

For purposes of making this determination, CIGNA requested information regarding the identity and contact information for any treating physicians, and asked that Miller sign appropriate authorizations to release medical information. [ECF No. 56-5, p. 20]. Miller submitted a Disability Questionnaire dated March 20, 2006, which listed Dr. Seymour as the only physician she "see(s) regularly" and noted her last visit as September 2005. [ECF No. 56-6, pp. 23-27]. In addition, Miller stated that her only medication was Advil, taken twice a day. Miller did indicate that she was still suffering from fibromyalgia and depression and that she was in pain "all the time." She complained of "very limited short term memory" and feelings of confusion, being overwhelmed and depressed. Id. In terms of her level of activity, Miller reported that she was able to cook two hours a day, five times a week; clean her home one to two hours a day, two days a week; shop two hours once a week; launder one hour once a week; and watch television three hours a day, five or six days per week. She also dined out twice a week. In addition, she took walks three times a week for 30 minutes or less. Id.

On September 12, 2006, two weeks after the expiration of the initial two-year LTD benefit period, CIGNA again wrote to Dr. Seymour requesting copies of medical records, a treatment plan and an estimated return to work date. [ECF No. 56-5, p. 29]. No response to this request was received. While it does not appear from the record that CIGNA attempted to contact Miller‟s former psychiatrist, Dr. Sabanayagam, Miller indicated in her March 2006 Disability Questionnaire that she had ceased psychiatric treatment.

Having received no medical evidence to support Miller‟s claim of continued disability under the "any occupation" standard, Sheila Miller, Mellon‟s Plan Manager, wrote to Plaintiff on October 12, 2006, and informed her that the October 15, 2006, LTD payment would be her last. [ECF No. 56-5, pp. 41-45]. The Plan Manager‟s letter detailed CIGNA‟s attempts to reach Miller‟s physician and his failure to submit any updated records. Because the last medical information on record was the CIGNA-sponsored IME and FCE from May 2005, Miller was advised there was insufficient evidence that she could not perform "any occupation" and therefore insufficient evidence that she was "totally disabled" as defined by the Plan. Miller was provided with the appeal procedure, as well as a list of examples of acceptable supporting medical documentation which could establish her inability to perform the duties of "any occupation."

On March 15, 2007, one month before the expiration of the appeal period, Miller filed a lengthy appeal letter. The letter detailed Miller‟s continued complaints of pain from fibromyalgia and depression, memory loss and difficulty sleeping. [ECF No. 56-5, pp. 46-51]. She complained of CIGNA‟s failure to contact Dr. Seymour (Miller‟s primary care physician), Dr. Sabanayagum (Miller‟s former psychiatrist) and Dr. Gudasblotch (Miller‟s neurologist, seen once in 2004). She listed three new doctors and a physical therapist that were now providing care, including Dr. Mark Siegelheim, an internist; Dr. Rosenberg, a physiatrist; Dr. Sandberg, a psychologist; and South Side Physical Therapy. She also indicated her willingness to undergo additional independent medical evaluations.

The March 2007 appeal commenced a second round of repeated requests by CIGNA for medical information and limited responses from Miller‟s physicians, which delayed full consideration of the appeal for an additional six months. [ECF No. 56-6, pp. 2-6]. On May 14, 2007, CIGNA requested copies of office notes, treatment plans, restrictions and limitations preventing Miller from returning to work, as well as an estimated return to work date from Drs. Sandberg, Rosenberg and Siegelheim (her the newly identified doctors), Dr. Gudasblotch and South Side Physical Therapy. [ECF No. 56-6, pp. 8-11]. On May 31, 2007, Miller was notified that none of her physicians had responded, and that her assistance was necessary to gather information for the review of her appeal. [ECF No. 56-6, p. 12]. This request was renewed by letters dated June 12, 2007, July 10, 2007, and August 6, 2007. With the exception of South Side Physical Therapy, which had provided treatment records, no responses were received. On July 24, 2007, the Plan Manager sent Miller an extension letter, providing her one last opportunity for her doctors to respond. [ECF No. 56-6, pp. 22-23]. It appears that CIGNA finally received treatment information from Drs. Siegelheim, Rosenberg and Sandberg on August 14, 2007. The records obtained from these "new" doctors indicate that Miller complained of feeling depressed and in moderate pain. However, none of the "new" doctors expressed the opinion that Miller was either currently disabled or that she had been disabled at her "any occupation" Total Disability date of August 2006. [ECF No. 56-6, pp. 26-48, ECF No. 56-7, pp. 2-17].

The treatments records show that after receiving the notification of termination of her benefits, Miller first went to Dr. Siegelheim, stating that she "need[ed] an internist," and had "ques[tions] to ask the Dr." [ECF No. 56-6, p. 48]. Her health history on that date indicated that her only medication was a multivitamin and Advil. Dr. Seigelheim‟s notes indicate that in the past, she had been diagnosed with fibromyalgia. Miller reported that she was feeling pain, felt depressed, and was having memory issues. Id. Dr. Siegelheim referred her to Dr. Rosenberg, who noted that Miller‟s physical exam was normal, except that she had 16/18 tender points throughout her upper and lower body. [ECF No. 56-7, pp. 15-16]. Dr. Rosenberg‟s impression was to "[r]ule in fibromyalgia with underlying depression" and advised her to begin taking Lexapro. He referred Miller for cognitive testing for her perceived memory deficits. Dr. Rosenberg did not state that Miller was disabled, and he suggested physical therapy and aerobic exercises. Miller saw Dr. Rosenberg again in January 2007. Dr. Rosenberg reported that while she had been feeling better and her mood was improved from his prior examination, Miller indicated she had recently experienced increased pain. Dr. Rosenberg again encouraged her to "focus on performing aerobic type exercises in addition to muscle strengthening and flexibility exercises" and to continue physical therapy twice a week to obtain a home exercise program and perform myofascial release to painful trigger points as necessary. During subsequent appointments in March, May and July 2007, Miller continued to complain of pain, but was tolerating exercise two to three times a week and reported that she was not waking up with pain. [ECF No. 56-7, pps. 8-13]. There is no evidence that Dr. Rosenberg ever concluded Miller was disabled or that he indicated her condition would prevent her from any form of employment or activity.

Dr. Mark A. Sandberg, Ph.D., a psychologist that Miller first consulted after receiving the October 12, 2006, letter notifying ...

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