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Lavino v. Metropolitan Life Insurance Co.

January 13, 2010

KELLY LAVINO, PLAINTIFF,
v.
METROPOLITAN LIFE INSURANCE COMPANY; MALCOLM PIRNIE LONG TERM DISABILITY PLAN, DEFENDANTS.



The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction

Plaintiff Kelly Lavino ("Plaintiff") brought this action against Defendant Metropolitan Life Insurance Company ("Defendant" or "MetLife") and Malcolm Pirnie Long Term Disability Plan, to recover benefits under the terms of an ERISA plan administered by Defendant. Plaintiff seeks to recover disability benefits from January 7, 2008, when her claim was terminated, to date. Having conducted a bench trial on January 21, 2009 the Court now makes the following findings of facts and conclusion of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons that follow, the Court finds that Defendant abused its discretion by deciding to terminate Plaintiff's long-term benefits under the Plan.

II. Facts

Plaintiff worked as a project engineer for Malcom Pirnie, Inc. ("Malcom Pirnie"). As an employee of Malcom Pirnie, Plaintiff was covered under a long-term disability plan (the "Plan") issued by MetLife. (AR 510.) As a Plan participant, Plaintiff is entitled to receive long-term disability benefits if she becomes, and remains "disabled" while covered by the plan. The Plan defines "Disabled" as follows:

"Disabled" or "Disability" means that, due to sickness, pregnancy or accidental injury, you are receiving Appropriate Care and Treatment from a Doctor on a continuing basis; and

1. during your Elimination Period and the next 24 month period, you are unable to earn more than 80% of your Predisability Earnings or Indexed Predisability Earnings at your Own Occupation for any employer in your Local Economy; or

2. after the 24 month period, you are unable to earn more than 80% of your Indexed Predisability Earnings from any employer in your Local Economy at any gainful occupation for which you are reasonably qualified taking into account your training, education, experience and Predisability Earnings.

(AR 563.) The Plan defines "Own Occupation" as:

the activity that you regularly perform and that serves as your source of income. It is not limited to the specific position you held with your Employer. It may be a similar activity that could be performed with your Employer or any other Employer. (AR 564.) Further, the Plan prescribes that long-term benefits can terminate if the participant is no longer "disabled," or fails to provide evidence of continuing disability. (AR 38, 22.) Finally, the Plan contains language explicitly delegating discretionary powers to MetLife.*fn1

In 2003 Plaintiff was diagnosed with breast cancer. Following a mastectomy, she returned to work in 2004 as she underwent chemotherapy. On January 3, 2006, Plaintiff took a leave of absence from work. (Id. at 346.) Thereafter, in October 2006, she applied for short and long-term disability coverage. (Id. at 345-49.) Plaintiff's claim was supported by her physician Dr. Michael Flaningam. (Id. at 347.) Dr. Flaningam stated in his Attending Physician Statement that he diagnosed Plaintiff as having fibromyalgia, with a secondary diagnosis of fatigue. (Id.) According to the American College of Rheumatology, the criteria for classification of fibromyalgia is (1) a history of widespread pain, and (2) pain in 11 of 18 tender point sites. (Collins Decl., Ex. 3 at 22.) Dr. Flaningam asserted that Plaintiff "has total body pain, typically in the muscles, but sometimes in the joints. She is tired all the time and has difficulty concentrating." (AR 347) Dr. Flaningam also noted that he expected Plaintiff could return to work on January 2, 2007. (Id.) In early January, however, Dr. Flaningam faxed MetLife a note indicating that he was extending her disability through June 30, 2007. (AR 341.) Dr. Flaningam noted: "I'm skeptical she'll ever be able to work on a daily basis or more than several hours straight." (Id.)

In evaluating Plaintiff's claim, MetLife requested Plaintiff's employer fill out a job description form. On the form, Plaintiff's employer indicated Plaintiff's job required: 3-4 hours of sitting and standing, 1-2 hours of walking, 7-8 hours of foot control for both feet, 7-8 hours of repetitive use of both hands, 1-2 hours of grasping with both hands, 3-4 hours of fine finger dexterity in the right hand, 3-4 hours of use of neck in a static position, 1-33% of the time lifting up to 10 pounds, 34-66% frequency of interpersonal relationships to perform the job, and 1-33% frequency of stressful situations necessary to perform the job. (AR 339.) The employer also indicated that in the course of performing the job Plaintiff was not required to: drive cars, trucks, forklifts and/or other equipment; be around moving equipment and/or machinery; walk on uneven ground; be exposed to dust, gas, or fumes; be exposed to marked changes in temperature or humidity; or be required to do overtime on a routine basis. (Id.)

Plaintiff's employer, however, complained through its insurance broker that it was "unsatisfied with the job description form" and stated that the form was "very unprofessional." (AR 321.) In response, MetLife interviewed Plaintiff directly. (Id.) Plaintiff reported that her job consisted of "preparing reports, overseeing projects, marketing, office work, driving to see clients, and monitoring construction sites." (Id.) In light of the new information, MetLife categorized Plaintiff's job as "Medium." (Id.) On January 17, 2007, Plaintiff's short-term claim for disability benefits was approved for benefits from January 4, 2006 to March 28, 2006. (AR 337.) In MetLife's records, the entry for January 17, 2007 indicates MetLife had classified Plaintiff's job as "sedentary," and describes her job as indicated in the form filled out by Plaintiff's employer, not as indicated by Plaintiff in her interview. (AR 324.) Nevertheless, the claim note states Plaintiff "is not able to safely perform the essential duties of her job." (AR 324-35.)

On January 31, 2007, MetLife denied Plaintiff's long-term benefit claim on the ground that her claim was filed late. (AR 311-12.) MetLife then reconsidered its denial when Plaintiff's employer took responsibility for the late submission. (AR 81.) MetLife therein agreed to complete a full review of Plaintiff's claim.

On February 16, 2007, MetLife requested additional medical information from Dr. Flaningam. (AR 306.) In his response Dr. Flaningam described Plaintiff's symptoms as "total body pain in muscles and joints. She is tired all the time and has difficulty concentrating." (AR 307.) Dr. Flaningam reported that Plaintiff is unable to engage in stress situations or in interpersonal relations. (AR 308.) He also reported that Plaintiff could sit for 3 hours intermittently and walk for 2 hours intermittently, but could not stand for an hour. (Id.) Dr. Flaningam concluded that Plaintiff could not work due her fatigue and limited ability to concentrate. (AR 307-310.)

In support of his findings, Dr. Flaningam provided MetLife with Plaintiff's complete record of treatment from January 2006 forward. (AR 280-304.)

Included in Plaintiff's record was a report completed by Dr. Carolyn Dennehey, a rheumatologist who examined Plaintiff in May 2006. (AR 302-305.) Dr. Dennehey's report confirmed Plaintiff's diagnosis as fibromyalgia, and also noted Plaintiff had positive FABER and positive straight leg raise. (AR 303.)

On March 12, 2007, MetLife approved Plaintiff's claim for long-term disability benefits. (AR 276.)*fn2 MetLife also encouraged Plaintiff to apply for Social Security benefits, and referred Plaintiff to an attorney who specializes in the Social Security process. (AR 266-267.)

On April 11, 2007, Dr. Flaningam faxed MetLife his notes from Plaintiff's April 11, 2007 appointment. (AR 260-61.) The note indicated that Plaintiff had not had "much luck [with] medications in the past," but that Plaintiff did take Ambien as a sleep medication. (Id.) Further, the note indicated that Plaintiff was going take Lyrica, a new medicine for fibromyalgia. (Id.)

On May 14, 2007, Dr. Flaningam faxed MetLife his notes from Plaintiff's May 11, 2007 appointment. (AR 247-48.) Dr. Flaningam noted that Plaintiff's total pain increased the month she was on Lyrica. (AR 248.) As such, Dr. Flaningam states: "Lyrica didn't work out; I'm not sure that any medicine will bring about significant relief, and she would rather not try anything else now." (Id.) Dr. Flaningam also noted that "Neither of us think she'll be able to work in any capacity July 1, as our previous goal, this likely will be at least several months beyond this; we'll therefore set a goal of January 1, 2008." (Id.)

In August 2007, Plaintiff filled out a "Personal Profile" form at the request of MetLife. (AR 232.) Plaintiff described trouble sleeping (AR 224), constant joint and muscle pain, as well as limited ability to concentrate and problem solve (AR 223.) Plaintiff reported that she expected to return to work "as soon as I can sit in a chair or stand for longer than 1/2 hour w/o pain, as soon as I can carry on a conversation w/o forgetting what we were talking about." (AR 225.)

In October 2007, Plaintiff advised MetLife that she had been denied Social Security disability. (AR 106.) MetLife advised Plaintiff to appeal the denial, and again referred Plaintiff to an attorney.*fn3 (AR 106.)

On November 9, 2007, Dr. Flaningam faxed MetLife his progress notes from Plaintiff's October 24, 2007 appointment. (AR 216-217.) Dr. Flaningam noted that Plaintiff wanted to avoid "meds." (AR 217.) He also noted that Plaintiff "[f]eels like she is getting worse and thinks she is as bad as she has ever been. Is in pain all the time, all over." (Id.) Dr. Flaningam reiterated his opinion that Plaintiff was unable to work. (Id.)

In November 2007, MetLife's records reflect that MetLife continued to document Plaintiff's job duties as "sedentary" citing the information put forth in the employer's form, but not citing any ...


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