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Dibartola v. United States Steel and Carnegie Pension Fund

United States District Court, Third Circuit

June 28, 2013

THE UNITED STATES STEEL AND CARNEGIE PENSION FUND a Pennsylvania corporation, Defendant.


ARTHUR J. SCHWAB, District Judge.

Before the Court are the parties' cross-motions for summary judgment (doc. nos. 17 and 21). Plaintiff brought this Employee Retirement Income Security Act (ERISA) action seeking long-term (formerly titled "supplemental disability benefits" (SDB)) under an insurance program provided by her employer, the United States Steel and Carnegie Pension Fund (USSCPF), which is the Plan Administrator of various health and welfare benefit programs sponsored by United States Steel Corporation (USS).[1] Plaintiff contends that the USSCPF "bungled the handling" of her claim and abused its deferential discretionary standard under ERISA. Defendant, on the other hand, argues that under the same deferential standard of review, its decision was not arbitrary or capricious and that substantial evidence, in the form of two opinions, from two impartial doctors, supports its decision to deny benefits.

For the reasons set forth in greater detail below, the Court will grant Defendant's Motion for Summary Judgment (doc. no. 19) and will deny Plaintiff's Motion for Summary Judgment (doc. no. 21).


The following relevant facts are not contested:

Plaintiff began to work for Defendant USSCPF on May 20, 1996, and was promoted no fewer than five (5) times during the 15 year period of employment. Most recently, as of March 12, 2010, she was a business partner performance specialist. Doc. No. 26 at ¶ 2. From the time when Plaintiff stopped working, and for a period of 20 weeks thereafter, she received salary continuation from Defendant. Plaintiff's position primarily involved sedentary work in an office environment, with infrequent travel to participate in benefit presentations for employees and retirees of USS. Doc. No. 30 at ¶ 2.

As stated, on March 12, 2010, Plaintiff ceased to perform her job duties on the basis of medical diagnoses of Chronic Fatigue Syndrome and Fibromyalgia by her treating physician (PCP), Daniel J. Crable, M.D. As a result of her health problems, Plaintiff filed for Social Security Disability (SSD) benefits, which she was awarded on October 26, 2010, with an onset date of September 2010, at the rate of $2, 153.00 per month. Doc. No. 26 at ¶ 3.

Plaintiff also applied for Supplemental Disability Benefits (SDB) under the Supplemental Disability Group Insurance Program for Eligible Non-Union Employees of United States Steel Corporation and Subsidiary Companies (the Program).

The Program is provided through the USS Corporation Plan for Employee Insurance Benefits (Revision of 1950), (the Plan), a welfare benefit plan subject to ERISA, 29 U.S.C. § 1001, et seq. The Program provides that USSCPF shall administer this Program and shall decide all questions arising out of and relating to the administration of this Program, with the decisions of the USSCPF being final and conclusive as to all questions of interpretation and application of the Program and as to all other matters arising in the administration thereof. Doc. No. 30 at ¶ 5-6. The Plan defines disability and duration of benefits under Section 4.6. Doc. No. 26 at ¶ 8.

On the second and final level of appeal, however, Section 4.15 of the Program provides that the determination of whether a participant is disabled shall be submitted to an impartial physician selected by the participant's physician and the USS Medical Director, and, after examination of the participant and consultation with the other two physicians, the opinion of the impartial physician shall decide the matter. Id. at ¶ 7.

The Program provides 18 months of SDB to a participant who is unable to perform the duties of his or her regular job as determined by the USS Medical Director, on the basis of injury or illness. Upon the conclusion of the 18 month period, benefits will continue if the participant is unable to engage in any gainful employ from which he or she is fitted by education, training, and experience, also as determined by the USS Medical Director. Id. at ¶ 19.

The First Notice of Claim under the Family Medical Leave Act (FMLA) was completed by Plaintiff and Dr. Crable, on March 30, 2010. Doc. No. 26 at ¶ 9.

On May 24, 2010, Plaintiff again visited Dr. Crable, who diagnosed Plaintiff as having Fibromyalgia and Chronic Fatigue. At that time, however, Dr. Crable noted on a form that he submitted for Plaintiff to obtain SDB that he could not determine whether Plaintiff was totally disabled. Id . at. ¶ 10-12. However, at that visit, Dr. Crable's objective findings were "normal." Id. at ¶ 9.

Also, on May 24, 2010, Plaintiff notified Stephanie Tinney, a Registered Nurse in USS' Medical Department that she had an appointment with her physician and was uncertain as to when she would return to work. Doc. No. 30 at ¶ 13.

Tinney communicated with Plaintiff on approximately six occasions between May 28, 2010 and December 9, 2010, once while Plaintiff was on vacation, for Plaintiff to authorize Drs. Joseph Ferris and Teresa Silvaggio of the USS Medical Department to both receive medical records from Dr. Crable, and to communicate with Dr. Crable, and for Plaintiff to submit updated SDB forms. Doc. No. 30 at ¶ 14.

According to the affidavit of Dr. Ferris of the USS Medical Department, he made four unsuccessful attempts to communicate with Dr. Crable about Plaintiff's condition between June 23, 2010 and July 28, 2010. Doc. No. 30 at ¶ 18.

On June 28, 2010, an MRI was performed on Plaintiff's brain due to complaints of memory loss, and it was negative for multiple sclerosis. Doc. No. 18 at ¶16. On July 6, 2010, Plaintiff submitted another SDB form, but Dr. Crable again stated that he could not determine whether Plaintiff was totally disabled. Doc. No. 30 at ¶ 17.

On August 17, 2010, October 12, 2010, and January 25, 2011, Plaintiff submitted further SDB forms, and on January 25, 2011, Plaintiff submitted a third Statement of Claim, all of which were from her treating physician, Dr. Crable. Id . at. ¶ 9-12. Doc. No. 26. at ¶ 10-14. Dr. Crable stated that Plaintiff is totally disabled, but noted no limitation on sitting. Doc. No. 30 at ¶ 17.

On November 17, 2010, Dr. Silvaggio personally interviewed and examined Plaintiff, and then wrote a report detailing her findings from the exam. Dr. Silvaggio concluded the report by noting that:

I will review records submitted by [Plaintiff's] primary care physician and also conduct a conversation with her primary care physician regarding this employee's status. The employee was agreeable to this and said she would sign all releases necessary for me to have a dialogue with her physician. We will obtain medical records from Dr. Crable and I will review. I will contact Dr. Crable by phone after I have reviewed the records to discuss Ms. DiBartola's situation.

Doc. No. 30 at ¶¶ 20-21.

According to the affidavit of Dr. Silvaggio, the USS Medical Director, after two unsuccessful attempts to contact Dr. Crable, on February 4, 2011, the two finally spoke and discussed Plaintiff's sedentary position and Dr. Crable's finding that Plaintiff was not limited in sitting. Doc. No. 30 at ¶ 22. Dr. Crable also told Dr. Silvaggio that he may send Plaintiff for neurocognitive testing in an effort to quantify objectively some of her concentration and focus complaints. Doc. No. 30 at ¶ 24; Doc. No. 26. ¶ 16. Dr. Silvaggio noted on February 4, 2011, that "at this time, I will await those results (neurocognitive testing) before a disability determination is made given the fact that there is not sufficient medical documentation convincing of an ongoing disability of Ms. DiBartolo from her job." Doc. No. 30 at ¶ 24; Doc. No. 26 at ¶ 17.

Dr. Crable stated to Dr. Silvaggio that he would discuss the plan with Plaintiff and projected receiving a neurocognitive test result within four weeks. Doc. No. 30 at ¶ 25. Consistent with the plan, on February 23, 2011, Plaintiff was evaluated by Psychologist Dr. Evan Kogan, who diagnosed Plaintiff with cognitive disorder and adjustment disorder with depressed mood. Dr. Silvaggio and Dr. Kogan discussed the test results on March 14, and 15, 2011.

On March 17, 2011, Dr. Silvaggio recommended via email to Donna Stewart, Manager Benefit Program Administration, that Plaintiff's SDB claim be denied. Dr. Silvaggio stated as follows: "[B]ased on my evaluation of Tamara DiBartola on 11/17/10, review of the available medical records, discussion with Dr. Crable and Dr. Kogan, it is my medical opinion that Ms. DiBartola is not disabled from performing her job." Doc. No. 30 at ¶ 29.

On March 29, 2011, the USSCPF responded by letter and issued a denial. Id. at ¶ 14. While Plaintiff emphasizes that the denial came 309 days from the date of the initial application, over 212 from the date of the first submitted Statement of Claim, and over 63 days from the last submitted Statement of Claim, Defendant counters that the delays were at least partly attributable to Plaintiff.

The letter by the USSCPF, dated March 29, 2011, to Plaintiff, stated in part:

The SDB claim forms completed by Dr. Crable on October 10, 2010 and January 25, 2011 both indicated that you are totally disabled, but Dr. Crable did not place any limitation on your ability to sit. Because your job is sedentary in nature, your duties are within the limitations outlined by Dr. Crable.
Additionally, although the initial screening tests performed by Dr. Kogan on February 23, 2011 indicated that there may be some impairment in your cognitive ability, he did not indicate that you are disabled. Instead, Dr. Kogan recommended further therapy and neurocognitive testing to confirm your diagnosis. Because your screening tests are based to a certain extent on subjective reporting, the additional testing recommended by Dr. Kogan is required in order to determine whether you are disabled.

Doc. No. 30 at ¶ 31.

By letter dated April 11, 2011, Plaintiff filed a timely administrative appeal to the Vice President of the USSCPF, alleging that the USSCPF: (1) failed to completely assess her job responsibilities; (2) failed to consider Dr. Crable's diagnosis in its entirety; and (3) misrepresented Dr. Kogan's assessment. Doc. No. 30 at ¶ 32.

Following this submission, Plaintiff submitted four additional SDB claim forms, as requested by the USS Medical Department, for a total of five (5) SDB claim forms. Doc. No. 26 at ¶ 20.

On April 26, 2011, Plaintiff sent a supplemental letter to the Director of the Health and Welfare Plans enclosing a copy of the medical evaluation by her rheumatologist, Dr. Mathur, and another letter from Dr. Crable. Doc. No. 26 at ¶ 21.

Dr. Mathur's impressions included (1) fibromyalgia with inability to cope with symptoms, (2) incapacitating fatigue, (3) history of chronic headaches, (4) history of gastroparesis and Barrett's esophagus, and history of irritable bowel syndrome, (5) hypothyroidism, and (6) possible depression. Doc No. 26 at ¶ 23.

On May 24, 2011, a certified letter to Plaintiff was sent by David Repko, Director of the Health and Welfare Plans. In the letter, it stated that additional time was needed to process Plaintiff's claim, in order to consult with a healthcare ...

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