The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
The parties have filed cross-motions for summary judgment. At issue
in this dispute is whether Defendants properly denied Plaintiff's claim
to certain disability insurance benefits. The Court has considered the
moving and opposing papers as well as the oral arguments presented at the
hearing on January 12, 2004. For the reasons set forth below, Plaintiff's
motion will be granted and Defendants' motion will be denied.
Plaintiff Marcella Bona alleges that Defendants improperly denied her
claim to long term disability benefits to which she was entitled under an
ERISA*fn1 plan. Sullivan Decl., Ex. 1 (MetLife Policy No. 5537023-G
("the Policy")). Plaintiff was employed by Broadbase Software, Inc. as
"Customer Community Program Manager," in which capacity she earned
approximately $130,000 per year. Plaintiffs Motion, p. 1; Silver Decl.,
Ex. 2. This position required travel, the "physical ability to lift and
transport packages that weigh a minimum of 35 pounds," the ability "to
work long hours," and exposure "to marked changes in temperature or
humidity." See Silver Decl., Exs. 3, 4, & 5; Sullivan Decl.,
On September 28, 2001, Plaintiff became unable to perform her job
duties due to alleged symptoms of multiple sclerosis ("MS"), see
Silver Decl., Ex. 8, the existence and cause of which the parties dispute
here. Neurologist Dr. Stasha Gominak diagnosed Plaintiff with chronic
relapsing MS on December 12, 2001. Silver Decl., Exs. 7 & 21.
Plaintiff previously had been diagnosed with MS when a brain magnetic
resonance imaging ("MRI") examination, which was performed in August
2000, revealed that there were "multiple periventricular white matter
changes consistent with demyelinating disease." Silver Decl., Ex. 30
(Jares letter, p.2). Defendants disputed that Plaintiff suffered from MS
and denied her claim to two-thirds of her earnings, as provided for in
the Policy. Silver Decl., Ex. 14. Defendants' stated reasons for the
denial included the following:
The medical on file does not substantiate a diagnosis
of multiple sclerosis. There are no test results or
findings on exam (such as MRI of Neuraxis,
Cerebrospinal Fluid Analysis, Intention Tremor,
Nystagmus, Scanning Speech, Urinary Incontinence,
Ataxia, Labile Affect) to support diagnosis of
Multiple Sclerosis. Also you are not being treated
with medications normally used to treat Multiple
Sclerosis (such as copazone, betaseron or avonex).
Generally patients that have Multiple Sclerosis are
treated with one of these medication agents in an
attempt to decrease progression of the disease.
. . .
After consideration of the available information, we
have concluded that your condition is not of the
severity to have precluded the performance of your
regular occupation as Marketing Director. Therefore,
you do not meet the plans [sic] definition of
disability cited above.
Silver Decl., Ex. 14. Defendants also appear to have based their
decision, at least in part, on the fact that Plaintiff became pregnant
following the onset of her alleged disability, on the ground either that
the pregnancy itself could have contributed to the symptoms that resulted
in her disability or that Plaintiff's ability to maintain a pregnancy
indicates that she does not suffer from MS.
Dr. Gominak thereafter wrote the following response to Defendants:
As you know Ms. Bona has well documented Multiple
Sclerosis. Her symptoms since onset have been
severe, uncomfortable sensory symptoms and severe
fatigue. Her diagnosis has been clearly confirmed
on MRI of the brain performed in 8/2000.
. . .
She had severe fatigue as well as worsening of her
sensory symptoms. She chose not to take steroids . .
. as do many of my patients, as steroid therapy has
never been shown to change the long term outcome of
MS. Ms Bona has also, since she has been seeing me,
been trying to get pregnant and has preferred to defer
long term preventative medications for MS until after
she has completed her pregnancy, which is a reasonable
choice on her part.
. . .
Despite the fact that Ms. Bona does not use a cane or
a wheelchair I have still made the determination that
her disease precludes her from working, even part
time. Your letter is phrased in such a way to suggest
that if the criteria you have established regarding
treatment and symptoms are not met then the patient
doesn't have MS and is not disabled. Neither of those
conclusions is true.
. . .
The fact that she has gotten pregnant while on
disability means that I have to be truthful in
answering that part of her fatigue may have to do with
pregnancy, but surely her pregnancy did not cause her
underlying, disabling condition, namely, MS. . . . I
also feel that you have purposefully dealt with her in
bad faith, using an inappropriate format for
questioning, and incomplete records in order to deny a
perfectly legitimate claim, which has not changed in
symptoms or status since the first time she went out
of work last August.
Silver Decl., Ex. 15. On June 17, 2002, Dr. Gominak found that Plaintiff
was unable to perform work of any kind. Silver Decl., Ex. 16.
After Defendants' denial, a second doctor, Dr. L. Neena Madireddi,
evaluated Plaintiff and her medical records and concluded that Plaintiff
"has well documented remitting/relapsing multiple sclerosis . . .
confirmed . . . by clinical examination, history and brain MRI study.
Multiple sclerosis is a very unpredictable disease and varies
significantly from time to time." Sullivan Decl., Ex. 11 (Madireddi
letter, p. 6). Dr. Madireddi also stated that it "is my medical
opinion that she is unable to perform even a sedentary work capacity at
this time," Sullivan Decl., Ex. 11 (Madireddi letter, p. 6), and that
Plaintiff "is definitely not a malinger [sic]," Sullivan Decl., Ex. 11
(Madireddi letter, p. 6).
Dr. Madireddi's findings were presented to Defendants in support of
Plaintiff's appeal of the denial of her claim. Defendants employed an
outside firm, NMR, to review all of Plaintiff's medical records. On
November 4, 2002, Dr. Joseph Jares, on behalf of NMR, concluded that the
"history is compelling for multiple sclerosis but is not uniquely
diagnostic of it. Also the MRI study is supportive of but not uniquely
diagnosis of multiple sclerosis." Silver Decl., Ex. 30 (Jares letter, p.
3). Dr. Jares also stated:
It is difficult to determine if Ms. Bona has
impairment due to objective findings as there has been
no neurologic examination submitted since the initial
examination of Dr. Gominak's in June 1999. In the
three years of progress notes that are submitted,
there is not one mention made of any abnormal or
positive or negative physical findings on neurologic
examination. The only positive abnormality is that of
the MRI of the brain, but this in and of itself is a
nonspecific abnormality and cannot be interpreted in
the absence of clinical findings to support or refute
. . .
As there has been no current neurologic examination
submitted, Ms. Bona retains the ability to work with
the only restriction being that of avoidance of heat
due to potential exacerbation of her MS symptoms. The
information submitted does not provide any evidence as
to an inability of Ms. Bona to work in at least a
seated sedentary to light capacity. The restrictions
and limitations placed by Dr. Gominak are unrealistic
for everyday life. They are not supported by any
positive or abnormal physical examination findings.
Silver Decl., Ex. 30 (Jares letter, p. 3). Dr. Jares concluded:
Ms. Bona retains the ability to work in at least a
seated sedentary to light full-time capacity from
09/28/01 through the present. This is based upon the
fact that there have been no abnormal neurological
findings submitted. This is also based upon the fact
that Ms. Bona has willingly decided to become
pregnant, even being aware of the fact that pregnancy
may place additional stress upon her body.
Silver Decl., Ex. 30 (Jares letter, p. 4). Dr. Jares opined further
that Plaintiff, "[i]n an 8-hour workday . . . retains the ability to
lift, carry or exert force up to: 20 pounds . . . maximum and frequently
lift/carry up to 10 pounds." Silver Decl., Ex. 30 (Medical Consultant
Review-Estimation of Physical Capacities). Dr. Jares did not find that
Plaintiff could lift, carry, or exert force up to fifty pounds or
frequently carry or lift up to twenty-five pounds. Defendants nonetheless
denied Plaintiff's appeal based in part on Dr. Jares's conclusions.
In their notice to Plaintiff denying her appeal, Defendants stated: "On
an August 23, 2000 office note Dr. Gominak indicated that all of Ms.
Bona's symptoms had resolved and a one-year follow up was recommended."
In fact, Dr. Gominak had written: "all of her symptoms have resolved to
numbness between D2 and D3 on the right." Silver Decl., Ex. 21. Dr.
Gominak also wrote that "[Plaintiff's] MRI scan shows characteristic
periventricular lesions" and concluded that she had "MS, chronic
relapsing." Silver Decl., Ex. 21.
In an unrelated proceeding, an administrative law judge for the Social
Security Administration found that the "medical evidence establishes that
claimant has the severe impairment of multiple sclerosis, acute,
relapsing." Silver Decl., Ex. 33 (Decision, p. 4).
II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted if there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c))); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of
informing the Court of the basis for the motion, and identifying portions
of the pleadings, depositions, answers to interrogatories, admissions, or
affidavits which demonstrate the absence of a triable issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party meets its initial burden, the burden shifts to the non-moving party
to present specific facts showing that there is a genuine issue of
material fact for trial. FED. R. CIV. P. 56(e); Id. at 324. The evidence
and all reasonable inferences therefrom must be viewed in the light most
favorable to the non-moving party. T. W. Elec. Service, Inc. v. Pac.
Elec. Contractors Ass'n, 809 ...