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DIGIACOMO v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

April 13, 2004.

DAVID DIGIACOMO, Plaintiff,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON; ADOBE SYSTEMS INCORPORATED GROUP DISABILITY INCOME PLAN, et al., Defendants.



The opinion of the court was delivered by: JEREMY FOGEL, District Judge

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

At issue in this dispute is whether Defendants properly denied Plaintiff's claim to certain long-term disability insurance benefits. The parties have filed cross-motions for summary judgment. The Court has considered the moving and opposing papers as well as the oral arguments presented at the hearing on April 12, 2004. For the reasons set forth below, Plaintiff's motion will be granted and Defendants' motion will be denied.

I. BACKGROUND

  Plaintiff David DiGiacomo alleges that Defendants improperly denied his claim to long term disability benefits to which he was entitled under an Employment Retirement Income Security Act ("ERISA") policy. ERISA, 29 U.S.C. § 1001 et seq.; Declaration of Paula McGee ("McGee Decl."), Ex. A (Liberty Group Disability Income Policy No. GF3-860-038747-01("the Policy")). Plaintiff was employed by Adobe Systems, Inc. ("Adobe") as a "Senior Computer Scientist," with duties described as follows: "[w]orks on extremely complex problems of wide scope in analysis, design, and programming," "[a]nalysis of situations or data requires an evaluation of intangible variance factors," [i]nterfaces with marketing," "[e]xercises autonomous judgment," "[p]rovides leadership," and "[a]cts as mentor to engineers." Declaration of Melvyn D. Silver ("Silver Decl."), Ex 17. Adobe obtained long term disability coverage from Defendants. Plaintiff is entitled to receive two-thirds of his basic monthly earnings — or $7,510.78 per month — if he is found to be "disabled" under the following terms of the Policy:
i. If the Covered Person is eligible for the 60 Month Own Occupation benefit, "Disability" or "Disabled" means during the Elimination Period and the next 60 months of Disability the Covered Person is unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness; and
ii. After 60 months of benefits have been paid, the Covered Person is unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age and physical and mental capacity.
McGee Decl., Ex. A (Policy, section 2, p. P-007).

  Plaintiff has complained of abdominal pain, has seen physicians for diagnosis and treatment, and asserts that he cannot concentrate or perform his job as a result of the pain and the effect of the medications that he takes for the pain. Defendants argue that Plaintiff is capable of doing his job because there is no objective data supporting his diagnosis and that he has been able to perform his job duties on a part-time basis during various periods since he developed the alleged disability. They assert that the medical records suggest that Plaintiff's symptoms are psychological in origin. However, Defendants identify no evidence that indicates affirmatively that Plaintiff has not experienced pain that prevents him from performing all of the material and substantial duties of his occupation.

  Gastroenterologist Dr. Michael S. Verhille examined Plaintiff on May 12, 2000. Dr. Verhille initially noted that "[m]y impression is that most likely this is GERD [gastroesophageal reflux disease], although the symptoms are somewhat atypical." Silver Decl., Ex. 2. During that particular examination, however, Dr. Verhille found no physical abnormalities that may have caused the pain. Gastroenterologist Dr. John C. Fletcher subsequently examined Plaintiff and concluded that "[t]his certainly sounds like irritable bowel syndrome or nonuclear dyspepsia." Silver Decl., Ex. 3. Dr. Fletcher also noted: "Of interest, his girlfriend does say that he is more anxious" and that "this man would be a candidate for a trial of tricyclic drugs, SSRI, or even buspirone [antidepressants]." Id. It is unclear how these comments are related to the pain experienced by Plaintiff. Plaintiff stopped working full time on March 2, 2001. He applied for disability benefits on July 5, 2001. On the disability benefits application form, his doctor stated that his diagnosis was "recurrent severe abd pain that prevents him from concentration & working as computer programmer" and the history was "[p]ersistent epigastric pain without clear cause." Silver Decl., Ex. 6.

  Defendants' nurse, Mark Janousek, who reviewed the claim file, concluded that there was no objective data supporting Plaintiff's doctors' conclusions and that "[t]reatment for GI problems have [sic] been appropriate, however excessive at this point. It does not appear that Clmt is being treated for his stress management. . . . Clmt may not be receiving appropriate treatment for psychological issues." Silver Decl., Ex. 12. On July 24, 2001, in a telephone conversation, Disability Case Manager, Melissa Chavez, discussed her opinion of Plaintiff's case with him. She stated that "all objective test results are normal" and that Plaintiff "is capable of medium manual activity." Silver Decl., Ex. 14 (July 24, 2001 telephone conversation). Plaintiff responded that his job required strong mental ability.

  Plaintiff was examined by Dr. Kenneth J. Hammerman on July 24, 2001. Dr. Hammerman discovered some objective evidence of a possible source of Plaintiff's pain. Specifically, Plaintiff had "an upper GI series which showed a small hiatus hernia and reflux." Silver Decl., Ex. 16. The other tests were negative. Dr. Hammerman also noted that Plaintiff "is now working 20 hours per week" and "has lost about 20 pounds." Id. Dr. Hammerman concluded that Plaintiff had "[e]pigastric pain, etiology unknown. . . . This may well be psychophysiologic." Id. He also concluded that Plaintiff "is not capable of returning to work at the current time." Id.

  On August 10, 2001, Defendants denied Plaintiff's claim, stating that the "[m]edical records do not support total disability from all the material and substantial duties of your occupation" and "treatment notes from your office visits with [Dr. Verhille] all indicate subjective complaints of abdominal pain. However, all objective diagnostic testing performed to date has been normal." Silver Decl., Ex. 18. Nothing in Defendants' denial indicates that they considered Plaintiff's claim that the pain reduced his mental acuity, which resulted in his inability to perform his job duties. Dr. Verhille wrote a letter in response explaining that Plaintiff's "symptoms are consistent with a diagnosis of functional dyspepsia" and that it "is common and expected in patients with functional GI disorders to not have extensive abnormalities on medical testing," yet "in addition to [Plaintiff's] reported pain, he had an upper GI performed on 05-26-00 which did show gastoresophageal reflux disease, . . . an esophagogastroduodenoscopy on 08-07-00 . . ., which showed a small hiatal hernia," and "a gastric emptying test done in the last two weeks which showed a borderline delay in gastric emptying." Silver Decl., Ex. 23. Dr. Verhille stated that "[a]ll of these are consistent with functional disease of the GI tract." Id. Dr. Verhille further noted that Plaintiff "displays signs of fatigue and discomfort and has had difficulty functioning, which is correlated with his report of pain symptoms." Id. After reviewing Plaintiff's job responsibilities, Dr. Verhille concluded that "because of his symptoms . . . of chronic pain, [Plaintiff] is not able to perform all the duties of his occupation of Senior Computer Scientist at the current time." Id.

  On September 25, 2001, Defendants reviewed his records again and concluded that Plaintiff "has had multiple tests for cause of pain with no objective findings. . . . Findings of gastroesophageal reflex disease and small hiatal hernia would not preclude [Plaintiff] from being able to perform the material and substantial duties of his occupation." Silver Decl., Ex. 25. On December 12, 2001, Defendants rejected Plaintiff's appeal, stating that the

 
objective medical documentation we have been provided does not support your condition is [sic] of such severity that it would prevent you from performing the material and substantial duties of your occupation as a Computer Scientist, throughout the elimination period. All testing submitted has been essentially within normal limits and your reported symptoms are mainly subjective.
Silver Decl., Ex. 30.

  II. LEGAL 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 nonmoving 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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