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BONA v. METLIFE DISABILITY INSURANCE COMPANY

January 20, 2004.

MARCELLA BONA, Plaintiff,
v.
METLIFE DISABILITY INSURANCE COMPANY and BROADBASE SOFTWARE LONG TERM DISABILITY PLAN, Defendants



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. Page 2

I. BACKGROUND

  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., Ex. 2.

  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. Page 3

 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 Page 4 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 a disability.
. . .
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. Page 5

  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 ...


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