United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
before the court are the parties' cross-motions for
summary judgment. (Doc.14, Doc. 17). Based
upon the court's review of the motions and related
materials, the plaintiff's motion for summary judgment
will be denied and the defendant's motion for summary
judgment will be granted.
of relevant background, on December 22, 2015, the plaintiff
filed this Employee Retirement Income Security Act,
(“ERISA”), 29 U.S.C. §1001, et
seq., action in the Court of Common Pleas of Lackawanna
County challenging the defendant's termination of her
disability benefits. On January 19, 2016, the action was
removed to this court. (Doc. 1). On May 19, 2016,
the plaintiff filed her motion for summary judgment, (Doc.
14), along with a supporting brief, (Doc.
15), and statement of material facts, (Doc.
16). The defendant filed a response to the
plaintiff's statement of material facts on June 10, 2016,
(Doc. 20), along with a brief in opposition to the
plaintiff's motion for summary judgment, (Doc.
meantime, on May 20, 2016, the defendant filed its own motion
for summary judgment, (Doc. 17), along with a
statement of material facts with supporting exhibits, (Doc.
18), and a supporting brief, (Doc. 19). The
plaintiff has neither responded to the defendant's
statement of material facts, nor filed a brief opposing the
defendant's motion for summary judgment.
judgment is appropriate “if the pleadings, the
discovery [including, depositions, answers to
interrogatories, and admissions on file] and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Turner v. Schering-Plough Corp.,
901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is
genuine if a reasonable jury could find for the non-moving
party, and is material if it will affect the outcome of the
trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna
Cas. & Sur. Co. v. Ericksen, 903 F.Supp. 836, 838
(M.D. Pa. 1995). At the summary judgment stage, “the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson, 477 U.S.
at 249; see also Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the
evidence or make credibility determinations). Rather, the
court must consider all evidence and inferences drawn
therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.
prevail on summary judgment, the moving party must
affirmatively identify those portions of the record which
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323-24. The moving party can discharge
the burden by showing that “on all the essential
elements of its case on which it bears the burden of proof at
trial, no reasonable jury could find for the non-moving
party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party
meets this initial burden, the non-moving party “must
do more than simply show that there is some metaphysical
doubt as to material facts, ” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v.
County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). However, if the
non-moving party “fails to make a showing sufficient to
establish the existence of an element essential to [the
non-movant's] case, and on which [the non-movant] will
bear the burden of proof at trial, ” Rule 56 mandates
the entry of summary judgment because such a failure
“necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La
Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
summary judgment standard does not change when the parties
have filed cross-motions for summary judgment. Applemans
v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987).
When confronted with cross-motions for summary judgment, as
in this case, “the court must rule on each party's
motion on an individual and separate basis, determining, for
each side, whether a judgment may be entered in accordance
with the summary judgment standard.” Marciniak v.
Prudential Financial Ins. Co. of America, 2006 WL
1697010, at *3 (3d Cir. June 21, 2006) (citations omitted)
(not precedential). If review of cross-motions reveals no
genuine issue of material fact, then judgment may be entered
in favor of the party deserving of judgment in light of the
law and undisputed facts. Iberia Foods Corp. v.
Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation
omitted). See Nationwide Mut. Ins. Co. v. Roth, 2006
WL 3069721, at *3 (M.D. Pa. Oct. 26, 2006)
aff'd, 252 F. App'x 505 (3d Cir. 2007).
1132(a)(1)(B) of ERISA provides the plaintiff a right of
action “to recover benefits due to [her] under the
terms of [her] plan.” 29 U.S.C. §1132(a)(1)(B). To
prevail on a claim under §1132(a)(1)(B), the plaintiff
must demonstrate that she has “a right to benefits that
is legally enforceable against the plan, and that the plan
administrator improperly denied those benefits.”
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012) (internal quotations omitted).
Supreme Court has instructed that courts are to review the
denial of benefits challenged under §1132(a)(1)(B)
“under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
When a plan grants its administrator the discretion to
determine eligibility or to construe the plan terms,
“we review a denial of benefits under an
‘arbitrary and capricious' standard.'”
Orvosh v. Program of Grp. Ins. for Salaried Employees of
Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir.
2000). The parties in this case agree that Reliance Standard
Life Insurance Company, (“Reliance”), has
discretion to interpret the terms of the policy and to make
eligibility determinations and, therefore, the
“arbitrary and capricious” standard is the
correct standard of review in this case. “An
administrator's decision is arbitrary and capricious
‘if it is without reason, unsupported by substantial
evidence or erroneous as a matter of law.'”
Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d
Cir. 2011) (quoting Abnathya v. Hoffmann-La Roche,
Inc., 2 F.3d 40, 45 (3d Cir. 1993)) (internal quotation
marks omitted). The Third Circuit has defined
“substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Fleisher, 679 F.3d at
the arbitrary and capricious standard, the “scope of
review is narrow and ‘the court is not free to
substitute its own judgment for that of the defendants in
determining eligibility for plan benefits.'”
Abnathya, 2 F.3d at 45 (quoting Lucash v. Strick
Corp., 602 F.Supp. 430, 434 (E.D. Pa. 1984)). Therefore,
the court is limited to considering only the evidence that
was before Reliance at the time it reviewed and decided the
claim. Mitchell v. Eastman Kodak Co., 113 F.3d 433,
440 (3d Cir. 1997).
provides that there is a structural conflict of interest that
exists because Reliance both pays benefits due and makes
eligibility determinations. The standard of review does not
change where a structural conflict of interest exists, namely
when an insurance company both funds and administers
benefits. Metropolitan Life Insurance Co. v. Glenn,
554 U.S. 105 (2008); Estate of Schwing v. The Lilly
Health Plan, 562 F.3d 522, 525 (3d Cir. 2009).
“Instead, courts reviewing the decisions of ERISA plan
administrators or fiduciaries in civil enforcement actions
brought pursuant to 29 U.S.C. §1132(a)(1)(B) should
apply a deferential abuse of discretion standard of review
across the board and consider any conflict of interest as one
of several factors in considering whether the administrator
or the fiduciary abused its discretion.” Id.
undisputed facts of record in this case demonstrate that
Reliance issued the group long term disability policy under
which the plaintiff is seeking benefits to Immune Deficiency
Foundation, (“IDF”), where the plaintiff was
employed as a Patient Advocate. The plaintiff's
occupation is classified as a light exertion level
occupation. In accordance with the policy, before any
benefits are paid, a claimant must satisfy a 90-day
elimination period, during which time they must be
continuously unable to perform the material duties of their
regular occupation. After the elimination period, benefits
are payable for up to 24 months, as long as the claimant
remains disabled from their regular occupation. After 24
months, benefits are only payable if an insured cannot
perform the material duties of any
occupation. (Emphasis added). The policy also contains
a 24-month aggregate lifetime limit on benefits for any
disability that is caused by or contributed to by a mental or
nervous disorder, including depressive and anxiety disorders.
13, 2010, the plaintiff stopped working due to back pain. In
relation to this, the plaintiff reported having previously
undergone a vertebrae fusion in 1990 while in high school. On
April 25, 2008, the plaintiff underwent a posterior spinal
fusion L3 to the sacrum with instrumentation from L3 to S1.
She had a transdiscal screw inserted from S1-L5, a posterior
spinal fusion of L3-L4, a L3-L4 laminectomy, a L3-L4
posterior spinal osteotomy, and a local bone graft. A lumbar
x-ray dated February 23, 2009, lists the plaintiff as having
a Grade 2 Anterior Spondylolisthesis at ¶ 5-S1, as does
a lumbar x-ray dated July 2, 2009. A disability claim
statement from Christopher J. Dewald, M.D., the
plaintiff's orthopedic surgeon, attributed the
plaintiff's back pain to spondylolisthesis, lumbar
stenosis and lumbago.
which also insures IDF's short term disability plan,
approved the plaintiff's claim from short term disability
benefits. After the plaintiff's short term disability
benefits were exhausted, Reliance approved the
plaintiff's long term disability claim and benefits began
on August 15, 2010.
approving the plaintiff's long term disability claim,
Reliance continued to obtain updated medical records. Those
records demonstrate that, as early as May 27, 2010, the
plaintiff treated for and frequently complained of anxiety
and stress which contributed to her physical symptoms. In
September 2010, the plaintiff received treatment for hives
that were believed to be stress related.
an October 4, 2010 vocational interview that was performed at
Reliance's request, the plaintiff stated that she can
lift no more than 15 pounds, and that she can stand, walk and
sit for only 15 minutes at a time. On this, Reliance
concluded that the plaintiff could perform sedentary level
work activity but was not capable of performing the material
duties of her regular, light level occupation. Therefore, the
plaintiff's long term disability benefits was continued.
November 2010, Eugene R. Stish, M.D., reported that the
plaintiff could not work due to back pain. He did not
attribute any of the plaintiff's reported limitations to
the effects of her medication. When asked whether the
plaintiff was “capable of performing any work at any
level of physical demand”, Dr. Stish responded
“no, she is having too much pain.” However, on
the same date, Dr. Stish completed a physical capacities
questionnaire stating that the plaintiff is capable of
occasional sitting, frequent standing and walking and
sedentary lifting (i.e., up to 10 pounds of force
occasionally, and/or a negligible amount of force
frequently). Reliance again determined that the plaintiff was
disabled from her own occupation and benefits continued.
2, 2012, the plaintiff was evaluated by Shu Xu, M.D., a
neurologist, who noted that the plaintiff's
“[a]nxiety makes things worse.” On May 16, 2012,
and again on July 12, 2012, Dr. Xu noted that the
plaintiff's tremors were “much better”. In
the meantime, a lumbar x-ray dated May 21, 2012 listed the
plaintiff as having a Grade 3 Spondylolisthesis at ¶
24, 2012, Vagmin Vora, M.D., evaluated the plaintiff for her
complaints of “[t]remor, status post spondylolisthesis
surgery”. In presenting the plaintiff's
self-reported medical history, Dr. Vora noted that the
plaintiff “underwent an L4-S1 fusion for high grade 4
spondylolisthesis . . . and was doing well after that.”
Dr. Vora's assessment and plan reflect “[a]
39-year-old female status post L3-S1 fusion for high grade 4
spondylolisthesis with persistent tremors since April of this
year, left sacroiliitis and persistent low back pain with
minimal radicular complaint to the left lower
extremity.” Relative to her reported tremors, Dr. Vora
indicated “[g]iven this patient's primary complaint
of some tremors, we do not think these are coming from a
spinal origin.” Dr. Vora recommended that the plaintiff
consult a neurologist regarding her tremor complaints. With
respect to the plaintiff's back pain and radicular
complaints, Dr. Vora noted that “these are stable and
minor complaint[s] for her really compared to the tremors. We
recommend that she continue with her conservative measures
that she has been doing and to call us if she has any further
problem of these. We will not schedule a routine follow up
for this patient.”
of the plaintiff's thoracic spine dated January 30, 2013
revealed “[n]o significant disc herniation, central
canal or neuroforaminal stenosis.” Further, an MRI of
the plaintiff's lumbar spine dated the same day revealed
“[n]o significant disk abnormality or spinal stenosis
present. Laminectomy and pedicle screw fixation as described
above. There has been no significant integral change.”
February 28, 2013 cervical MRI reflects a broad-based
slightly left paracentral disc herniation with moderate
impingement centrally upon the thecal sac at ¶ 4-5 and a
broad based and slightly irregular disc osteophyte complex
with moderate to severe impingement centrally upon the thecal
sac and with mild bilateral neural foraminal impingement,
slightly greater on the left than the right at ¶ 5-6.
March 14, 2013, the plaintiff treated with Dr. Stish at which
time it was noted that the plaintiff exhibited no tremors
during his examination. One month later, on April 11, 2013,
Dr. Stish noted “Neurological: Motor exam reveals
normal tone and strength. No involuntary movements noted on
today's exam”. Contrary to the statements in his
treatment notes of March 14. 2013 and April 11, 2013, Dr.
Stish prepared a letter to the Pennsylvania Insurance
Department dated April 11, 2013, in which he stated that the
plaintiff was not capable of working in any capacity because
she was reportedly (a) unable to sit for more than 10
minutes, (b) unable to perform any job requiring the use of a
computer or writing because of reported neck pain and (c)
experiencing tremors that no physician was able to diagnose
in the two years during which she complained of them.
14, 2013, the plaintiff treated with Terence F. Duffy, M.D.,
* * * Physical examination shows patient [to] be in no acute
distress. She appears much more relaxed. Palpable tenderness
in the upper trapezius is noted. Minor restrictions to
cervical range of motion. Tenderness persists across the
lower lumbar region. I did not assess her lumbar flexion or
extension for furosemide causing her lower body
“movement disorder”. Any upper extremities
reflexes 1/4. Motor testing and sensation are normal.
At the request of Dr. Duffy, the plaintiff was evaluated by
Tsao-Wei Liang, M.D., Assistant Professor of Neurology, The
Parkinson's Disease & Movement Disorders Program at
Jefferson Hospital. In a subsequent letter to Dr. Duffy, Dr.
IMPRESSION and RECOMMENDATIONS:
My immediate suspicion based on the high variability and
unusual movements was that this was a psychogenic movement
* * *
I discussed my suspicion and the fact that many patients, who
have suffered from this condition including chronic pain,
have suffered a childhood trauma. Immediately, she became
tearful and described this history that her uncle had
molested her in childhood at the age of four.
* * *
Although this history is highly indicative of a potential
psychogenic etiology for movement disorder, it certainly is
not always diagnostic. At the same time, with discussion of
this problem her symptoms gradually improved and there was a
sense of understanding and relief when we discussed this,
which is a good prognostic factor. At this point, I would
recommend gradually reducing medical therapies if at all
possible and I strongly encouraged her to discuss with a
counselor, clergyman, friend or a psychologist the history
and to potentially engage in formal counseling and therapy
regarding her prior history of abuse. I have no further
recommendations otherwise and suggest that she follow-up as
needed in the future.
August 1, 2013, Dr. Stish noted that the plaintiff was
“to see psychologist” regarding her tremors.
plaintiff was again evaluated by Dr. Xu on August 15, 2013,
at which time it was noted that no tremors were observed. Dr.
Xu agreed that the plaintiff “may benefit from
September 3, 2013, Dr. Duffy referenced Dr. Liang's
correspondence and opinion that the plaintiff's
“movement disorder is psychiatric”.
on October 17, 2013, the plaintiff treated with Howard Ogin,
M.A., a psychologist, who diagnosed her with posttraumatic
stress disorder, conversion disorder and noted that she
suffered from severe stress. Dr. Ogin identified the
plaintiff's primary problem as unspecified chronic