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William Taylor v. Johnson & Johnson

February 11, 2013

WILLIAM TAYLOR
PLAINTIFF,
v.
JOHNSON & JOHNSON, DEFENDANT.



The opinion of the court was delivered by: Jones, II, J.

MEMORANDUM

William Taylor brings this non-jury action against his former employer, Johnson & Johnson ("J&J"), pursuant to Sections 502(a)(1)(B) and 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1132(a)(1)(B), 1140, challenging the decision to terminate his long term disability benefits. Presently before the Court is J&J's Motion for Summary Judgment ("Def. Mot."), including its Statement of Undisputed Material Facts ("Def. SUF") (collectively, Dkt. No. 11), as well as Plaintiff's cross-motion for summary judgment*fn1

("Pl. Mot.") (Dkt. No. 12), and Defendants' Reply (Dkt. No. 13). Having thoroughly examined the administrative record, for the reasons set forth below Defendant's Motion will be GRANTED and Plaintiff's Motion will be DENIED.

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law; and (2) genuine, meaning the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and "must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

II. FACTS

Plaintiff Taylor was employed by J&J's wholly-owned subsidiary Noramco, Inc. ("Noramco") as a Chemical Operator II, and thus was eligible to participate in J&J's Long Term Disability Income Plan for Choices Eligible Employees of Johnson & Johnson and Affiliated Companies ("the Plan"). (Def. SUF at && 1-2.) The Pension Committee of Johnson & Johnson ("JJPC") is the named fiduciary of the Plan, which the Plan states "shall control and manage the operation and administration of the Plan." (Id. ¶ 8.) The Plan states that the "named fiduciary may exercise discretion in making determinations of fact, interpreting the terms of the Plan, adopting rules and taking other actions with respect to which it has authority. Any interpretation or determination made pursuant to such discretionary authority shall be conclusive and given full force and effect, subject to any right to appeal the interpretation or determination . . . ." (Id. ¶ 9.) The powers over which JJPC has "sole authority" include sole authority to "[e]xercise its discretion to determine eligibility for benefits," "[d]elegate its authority established hereunder," and "[e]xercise final authority and responsibility for administration and operation of the Plan, including without limitation adjudication of all claims and claims appeals." (Id. ¶ 11.)

During the relevant time period, the Plan defined the term "Total Disability" or "Totally Disabled" to mean, during the initial 26 week period of claimed disability, "the complete inability of the Participant, due to Sickness or Injury, to perform the material and substantial duties of the Participant's regular job, with or without reasonable accommodation . . . ." Thereafter, for a period not exceeding 24 months, the definition required "the complete inability of the Participant, due to Sickness or Injury, to perform the Essential Functions of his or her Regular Occupation or of a Reasonable Employment Option available to the participant, and as a result the inability to earn more than 60% of pre-disability Regular Monthly Earnings with or without reasonable accommodation." After the 24 month period, the definition required "the complete inability of the Participant, due to Sickness or Injury, to perform the Essential Functions of any Gainful Occupation that his or her training, education and experience would allow the Participant to perform, or for which the Participant may reasonably become qualified, with or without reasonable accommodation." (Id. ¶¶ 12-13.) Taylor began his period of disability on October 2, 2001, after he was diagnosed with Major Depression with Agitation and knee problems. Kemper National Services, which was the Claim Service Organization ("CSO") for the Plan, approved Taylor's claim for LTD benefits on April 2, 2002. (Id. ¶¶ 14-15.)

Taylor passed the 24 month mark of LTD benefits and became subject to the more limited definition of Total Disability as of April 2004, and was asked to complete medical forms to determine his continued eligibility. (Id. ¶ 18.) By letter dated July 26, 2004, the new Plan CSO Broadspire Services, Inc. ("Broadspire") notified Taylor that he continued to meet the definition of Total Disability. (Id. ¶ 19.) In March 2005, after receiving a report from Taylor's treating psychologist, Beatrice Lazaroff, Ph.D., Broadspire's Lawrence Burstein, Ph.D. conducted a "Peer to Peer Physician Review with Dr. Lazaroff. Based on a review of the record and conversations with Dr. Lazaroff, Burstein concluded that Taylor's anger management issues were "circumscribed to his particular job" with Noramco, that nothing Dr. Lazaroff described indicated his symptoms would preclude working an 8-hour day, and thus "it cannot be substantiated that the claimant is unable to work an 8-hour day in a sedentary job." (Id. ¶ 21; AR 631.) Thereafter, Broadspire arranged for an independent medical examination ("IME") of Taylor, which was conducted on April 8, 2005 by Marc Kossmann, Ph.D. (Def. SUF ¶ 22.) In a report dated April 21, 2005, Kossmann concluded, based upon a four-hour examination and the administering of various tests, that although Taylor's anger management issues might pose a threat to co-workers, with proper supports he was "capable of working an eight hour day with the understanding that he does have significant anger management issues." (Id. ¶ 23; AR 600.) Thereafter, Broadspire asked Elana Mendelssohn, Ph.D. to conduct another Peer Review. She opined: "Overall I am in agreement with the submitted IME [of Dr. Kossmann] in that the claimant is capable of working an 8-hour day." She disagreed with Kossmann's statement that Taylor might pose a threat to co-workers, finding that his anger management issues were limited to his last job. (Def. SUF ¶ 25; AR 603.) Based on these medical opinions, Broadspire informed Taylor on June 9, 2005, that he no longer met the Plan's definition of total disability and that his benefits would terminate as of August 8, 2005. (Def. SUF ¶ 26.)

Taylor filed an administrative appeal of this decision on December 7, 2005, enclosing documents from Dr. Lazaroff dated November 11, 2005, as well as a letter from his primary care physician advising that Taylor was scheduled to undergo complete knee replacement in the near future. (Id. ¶ 28; AR 559.) On February 22, 2006, Broadspire reinstated his LTD benefits retroactive to August 8, 2005. (Def. SUF ¶ 30.) Taylor underwent left knee replacement surgery on December 13, 2005 and right knee replacement surgery on December 5, 2006. (Id. ¶¶ 31, 34; AR 36, 45-46.)

By 2006, Reed Group ("Reed") became the Plan's CSO. (Def. SUF ¶ 32.) Reed requested medical documentation on October 24, 2006 and February 12, 2007. (Id. ¶¶ 32, 35.) Dr. Ronald Rosenfeld submitted an Attending Physician Statement on February 15, 2007, opining that Taylor was "not able to work" and "totally disabled." Rosenfeld opined that Taylor could "never" return to work. (Id. ¶ 36; AR 103.) On February 19, 2007, Reed obtained documents from Premier Orthopaedic & Sports Medicine ("Premier"), to whom Rosenfeld had referred Taylor for physical therapy. Those documents noted that Taylor had less pain and greater mobility, and there was objective improvement. (Def. SUF ¶ 38; AR 117.)*fn2 Progress notes from Dr. Rosenfeld on January 14, 2007 noted that Taylor was "one month post-op right total knee replacement, doing much better. Pain levels have come off nicely." (Def. SUF ¶ 39; AR 123.) A note from March 1, 2007 noted "excellent progress" with his right knee with no pain, and "intermittent discomfort" in the left knee. He opined that one more month of physical therapy "should do the trick for him." (Def. SUF ¶ 40; AR 179.)

At Reed's request, Taylor underwent a Functional Capacity Evaluation ("FCE") in March 2007, conducted by Shawn Vogel, MPT. (Def. SUF ¶¶ 41-43.) Vogel reported that Taylor satisfied the ability to perform all tasks required of a sedentary occupation, as defined by the United States Department of Labor Physical Demand Level for sedentary work, with restrictions on floor to waist lifting, crouching, and kneeling, and opined that Taylor could expect continuing improvement in his ability to perform floor to waist lifting. (Id. ¶ 44; AR 194.) Based upon this report, Reed notified Taylor on April 11, 2007, that his LTD benefits based on his bilateral knee condition would terminate on May 11, 2007. (AR 191.) That same notice informed Taylor that his LTD benefits based on his mental health condition would continue, but noted that its records showed that Taylor had not been under the care of any treating professional for his mental health condition, and thus was not meeting the terms of the Plan. (AR 192.) He was given thirty days to comply with the treatment requirement by commencing treatment with a mental health professional and providing written documentation of compliance. (AR 193.) However, before the thirty day period lapsed, by letter of April 20, 2007, Reed notified Taylor that "[a]t this time, we are terminating your LTD benefits effective May 11, 2007 in relation to both the mental health and physically disabling conditions. . . ."*fn3 (AR 197-99 (emphasis in original).)

On October 3, 2007, Taylor filed an administrative appeal of the decision to terminate his benefits, enclosing a report from Taylor's treating orthopedist Dr. Rosenfeld dated May 23, 2007. (Id. ¶ 54; AR 203.) J&J asserts that this letter served only to appeal the termination of LTD benefits based upon Taylor's knee condition since it referenced only Dr. Rosenfeld's opinions, and that there is nothing in the Administrative Record showing that Taylor ever appealed the termination of his benefits based upon his mental health condition. (Def. SUF ¶ 56.) In response to J&J's argument, Taylor has come forward with no citation to the Administrative Record to show that he ever appealed the termination based upon his mental health condition.

Dr. Rosenfeld opined that Taylor "remains totally disabled from returning to his previous occupation. . . . Even over the long term, I do not expect that he ever will be able to return to his previous activity level or perform any other occupation that requires a significant amount of standing, walking, climbing, bending or heavy lifting. I consider these restrictions to be permanent." (Id. ¶ 55; AR 204.) As part of the appeal, Reed engaged GENEX Services to arrange an IME. (Def. SUF ¶ 61.) GENEX engaged orthopedic surgeon Dr. John Duda, and provided him with the Plan's definitions of disability. (Id. ¶ 62.) Duda examined Taylor on December 12, 2007. In his subsequent report, Dr. Duda opined that Taylor "is employable on a full time basis in a limited capacity." (Id. ¶ 64; AR 238-39.) Reed also arranged for Taylor to undergo a Transferable Skills Analysis ("TSA"), which was conducted by a GENEX case manager, Steven Weinberg, MS, CRC. (Def. SUF ¶ 65.) Weinberg opined that, based upon his medical status, education and prior work history, Taylor was capable of performing sedentary work such as a ...


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