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July 1, 2004.


The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District


Re: Defendant's Motion for Partial Summary Judgment

This action arises from defendant Acuson Corporation Long Term Disability Plan's ("Acuson") decision to terminate its payment of disability benefits to plaintiff Daniel Firestone ("Firestone") after the 24-month period set forth for mental illness-related disabilities. Plaintiff has brought suit in this court seeking to overturn defendant's decision according to the standards set forth in the Employee Retirement Income Security Act ("ERISA"). Now before the court is defendant's motion for partial summary judgment on the issue of what standard of review this court should apply when evaluating defendant's decision to terminate benefits. Having considered the arguments presented and for the reasons stated below, the court enters the following memorandum and order.


  I. Firestone's Disability Plan

  On April 20, 2000, plaintiff Daniel Firestone ceased working as a purchasing manager for Acuson Corporation due to his disability or disabilities at issue in this case. As an employee of Acuson, Firestone was covered under the company's Long Term Disability Plan, issued by Liberty Life Assurance Corporation to Acuson. Gallegos Dec., Exh. A, at GBP-24. As its name may indicate, this plan provided long-term disability benefits to qualified employees. See generally id. In relevant part, the plan explained that:
When we [Liberty] receive proof that you [a covered employee] are Disabled due to Injury or Sickness and require the regular attendance of a Physician, we will pay you a Monthly Benefit after the end of your Elimination Period. The benefit will be paid for the period of your Disability if you give to us proof of continued:
1. Disability; and
2. regular attendance of a Physician.
Id. at GBP-013 (capitalization in original). While the plan promised (in theory) to pay a limitless number of monthly benefits for most typical physical disabilities, it placed a specific restriction on the number of benefits that would be paid to former employees who were disabled by "Mental Illness" or "Drug and Alcohol Abuse":
The benefit for Disability due to Mental Illness and Alcohol or Drug Abuse will not exceed 24 months of Monthly Benefit payments unless you meet one of these situations.
1. You are in a Hospital or Institution for Mental Illness and Alcohol or Drug Abuse at the end of the 24 month period. The Monthly Benefit will be paid during the confinement.
. . . .
Id. at GBP-016. In addition, and crucially, the plan stated that "Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder." McGee Dec., Exh. A, at 24.

  II. Liberty's Evaluation of Firestone's Disability Claim

  Defendant received plaintiff's notice of disability claim on June 21, 2000. On the submitted form, plaintiff identified his psychiatrist, Dr. Frank Annis, as his treating physician, and described his disability as "Depression, sluggishness, lack of focus/concentration, anxiety. Onset over a prolonged period of time becoming increasingly worse." McGee Dec., Exh. B, at CF 363. Plaintiff noted also that he had "high blood pressure, complicated by one kidney removed for cancer in 1997." Id. Plaintiff explained that his illness had begun as early as April 1999. Dr. Annis, in turn, concluded that plaintiff suffered from a "Class 4" mental/nervous impairment, viz., that "patient is unable to engage in stressful situations or engage in interpersonal relations," and a "Class 3" physical impairment, viz., "slight limitation of functional capacity; capable of light work" which he believed derived from plaintiff's high blood pressure. Dr. Annis stated that plaintiff was taking various psychiatric medications "for dealing with symptoms and major life restructuring." Id. at CF 358-59. According to a record from a previous office visit, those psychiatric medications were Xanax and Zoloft, which plaintiff was ingesting in order to treat his anxiety and depression. Id. at CF 372.

  On July 2, 2000, Liberty Life's case manager reviewed plaintiff's claim and recommended that Liberty Life approve the claim based upon plaintiff's mental condition. Liberty, however, decided that further investigation was warranted and spoke with plaintiff's wife on July 6, 2000; she confirmed that "Mr. Firestone is currently limited in his activities of daily living" and his "depression is only slightly improving." Id. at CF 013. Still not satisfied with the degree of information in their position regarding plaintiff's condition, on July 17, 2000, Liberty asked Stephanie Nelson, a Registered Nurse in Liberty's Managed Disability Services (MDS) unit to review Firestone's file. Nurse Firestone indicated that in her opinion "the [doctor's] treatment for [plaintiff] does not appear consistent with [plaintiff's] reported symptoms." Id. at CF 011.

  Pursuant to this opinion, Liberty then requested further notes and information from Dr. Annis on July 19, 2000. Id. at CF 350-53. In response to this request, Dr. Annis reported that his Axis I diagnosis was that plaintiff suffered from a "major depressive disorder," his Axis III diagnosis was of "s/p renal cancer nephrectomy," that plaintiff's Axis IV psychosocial and environment problems are "related to social environment" and "include occupational problems," and that his Axis V GAF score was 40. Dr. Annis described plaintiff's symptoms as "insomnia, constriction of interest, difficulty concentrating, alteration in affect, psycho motor agitation, psycho motor retardation, depleted energy, suicidal ideation, decreased appetite and feelings of guilt/unworthiness." Id. at CF 346. Dr. Annis explained that he had prescribed Zoloft, Atenelil, Trazodone, and Ativan, and stated that he believed that plaintiff would recover fully by October 15, 2000. Id. at CF 344-46. Following the receipt of this information from Dr. Annis, Liberty notified plaintiff that it had approved his claim for disability benefits. Id. at CF 337-340. The letter of notification stated, inter alia, that plaintiff's claim for benefits was being approved on the grounds that he suffered from a mental disability, and noted that twenty-four month limit on mental illness disability payments. Id.

  On October 5, 2000, Firestone submitted a second Disability Claim Form to Liberty, this time describing his disability as "[c]ontinuous hypertension, rapid irregular heartbeat, acid reflux discomfort, inability to swallow food, food impaction. Symptoms growing worse thru [sic] late '99 into 2000." Id. at CF 323. Plaintiff listed a new doctor, Seth Weissman, M.D., as his treating physician.*fn2 Id. Several weeks later, Dr. Weissman filed an "Attending Physician's Statement" ("APS") that described plaintiff as suffering from "severe GERD" (Gastrointestinal Reflux Disease) with "concurrent conditions" of "high blood pressure, history of renal cell carcinoma, and depression. Id. at CF 321. Dr. Weissman concluded that plaintiff suffered from a Class 5 physical impairment, as well as a Class 4 mental impairment. Id. at CF 322.

  Presented with this new claim, Liberty requested additional records and information from Drs. Weissman and Annis. Dr. Weissman submitted paperwork indicating that plaintiff's Axis I diagnosis was "major depressive disorder . . . panic disorder," his Axis III diagnosis was "stp [status post] kidney cancer," and his Axis IV diagnosis was "severe work burn out." Id. at CF 307. Dr. Annis's further notes confirmed this, referencing plaintiff's "Arethemia, GERD, and high blood pressure." Id. at 302-304. Liberty continued to request additional updated information from Drs. Weissman and Annis, and on December 29, 2000, Dr. Weissman filed another APS stating that plaintiff still suffered from a "Class 5" impairment, but one that was "due to psychiatric > [sic] physical limitations." Id. at CF 296. Dr. Weissman's subsequent office notes provide greater detail as to plaintiff's physical state. Dr. Weissman's notes from February 5, 2001, describe symptoms including "occasional reflux" and "episodes of arrhythmia," and conclude that "[t]he patient's blood pressure control is fair on current regimen" but that the patient will undergo further tests regarding his GERD. Id. at CF 183. Dr. Weissman's notes from April 9, 2001, state that plaintiff's GERD was "under pretty good control" but explain also that "[t]he patient's blood pressure is not optimal" and describe periods of dizziness. Id. at CF 185-86. Finally, Dr. Weissman's June 1, 2001, office notes, following a subsequent examination of plaintiff, state that plaintiff's heartbeat has a "[r]egular rate and rhythm without murmur" and describe his blood pressure as "much better controlled on his current regimen," but explain also that "the patient's [GERD] symptoms have returned." Id. at CF 187.*fn3

  Over the following months, Liberty continued to request more information regarding plaintiff's condition, and plaintiff's doctors continued to submit additional notes and reports that described his changing status and shed more light on his evolving health. On August 20, 2001, Liberty received a "Physical Capabilities Form" from Dr. Weissman that opined that plaintiff would not be able to work a full eight-hour workday.*fn4 Id. at CF 166-67. When asked for the reason for his opinion, however, Dr. Weissman explained that "severe depression limits Mr. Firestone at the current time." Id. at CF 167 (emphasis added). On February 20, 2002, Dr. Annis sent to Liberty a new "Functional Mental Status Evaluation" in which he stated, in response to the Liberty's query regarding the manner in which plaintiff's symptoms interfere with his ability to work, that plaintiff "is mostly disabled by his physical condition."*fn5 Id. at CF 149 (emphasis added).

  In contradictory fashion, Dr. Weissman sent a note to Liberty on March, 7, 2002, stating that Firestone was "primarily disabled due to psychiatric condition." Id. at CF 142. Dr. Weissman supplemented these notes with a "Physical Capacities Form" on which he wrote that restrictions on plaintiff's physical abilities and capacities were "based mostly on patient's subjective complaints, overall fatigue and weakness." Id. at CF 144. The form also described Dr. Weissman's diagnosis of plaintiff as including depression, high blood pressure, and GERD. Id. However, in May of that year, on another Functional Capabilities Form, Dr. Weissman submitted to Liberty a somewhat different formulation of his diagnosis of plaintiff's condition, explaining that Firestone's restrictions on activity were due to his "severe depression which greatly limits his overall physical activity." Id. at CF 69. Dr. Weissman also listed hypertension, GERD, and renal cell carcinoma among plaintiff's "concurrent conditions." Id. Regardless of the cause of plaintiff's condition, Dr. Weissman's description of it painted a ...

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