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.
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
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
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."
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.
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 ...