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Austin v. Life Insurance Company of North America

April 13, 2010

ZAINAB AUSTIN, PLAINTIFF,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA; UBS AG LONG TERM DISABILITY PLAN; UBS AG LIFE INSURANCE PLAN, DEFENDANTS.



The opinion of the court was delivered by: Percy Anderson United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is an Employee Retirement Income Security Act ("ERISA") action for recovery of long-term disability benefits. Plaintiff Zainab Austin ("Plaintiff") seeks benefits under an employee welfare benefit plan established by her employer, UBS. On March 29, 2010, following the filing of the Administrative Record and briefing by the parties, the Court, sitting without a jury, conducted a bench trial. Having considered the materials submitted by the parties and reviewed the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a):

I. Factual and Procedural Background

Plaintiff, who is now 51 years old, was formerly employed by UBS as a Senior Sales Brokerage Assistant earning over $100,000 annually. (Administrative Record ("AR") 1031.) Plaintiff was insured by Life Insurance Company of North America ("LINA") for disability insurance through a group policy issued to UBS ("Disability Policy"). (AR 807.) Under the Disability Policy, total benefits are available for an employee disabled from performing her "regular occupation" during the first 24 months of disability. (AR 1054.) An employee is "totally disabled" if, during the first 24 months of disability, the employee is "unable to perform the material duties of [her] regular occupation, or solely due to injury or illness, [she was] unable to earn more than 80% of [her] indexed covered earnings." (AR 1054.) After the first 24 months, the definition of "total disability" changes so that an employee is considered "totally disabled" only if she cannot perform "the material duties of any occupation for which [she is] reasonably qualified by education, training, or experience, or solely due to injury or illness, [she is] unable to earn more than 80% of [her] indexed covered earnings." (AR 1054 (emphasis added).) The Disability Policy gives LINA the discretion "to interpret the terms of the Plan documents, to decide questions of eligibility for coverage or benefits under the Plan, and to make any related findings of fact." (AR 305.)

By virtue of her employment at UBS, Plaintiff was also insured by LINA for life insurance ("Life Policy"). The Life Policy provided that payment of life insurance premiums was waived for any UBS employee who was eligible for disability benefits ("WOP"). (AR 734.)

Plaintiff suffers from Supravalvular Aortic Stenosis and underwent open heart surgery at age four. (AR 251.) Complications from the disease resulted in more open heart surgery in March 2003. (AR 251.) Plaintiff returned to work less than two months later. (AR 232.) However, the surgery was not successful and in November 2004, Plaintiff sought a leave from work due to severe pain, fatigue, and shortness of breath. (AR 1031.) Plaintiff applied for short term disability benefits based on "[c]omplications from open heart surgery in 3/2003 -- loss of voice from too little oxygen and chest and back pains." (AR 902-903.) Plaintiff's primary cardiologist, Norman Lepor, M.D., certified her disability and opined that Plaintiff could not return to work until her heart valve was repaired or replaced. (AR 875, 879, 895.)

In a Medical Request Form dated January 21, 2005, Dr. Lepor indicated that Plaintiff was "not allowed to go to work" and noted that she was "severely limited functionally by the pulmonary artery stenosis[,] making her very short of breath even at rest." (AR 851.) Dr. Lepor also opined that Plaintiff "will not be able to work until congenital heart defects [are] repaired." (AR 875). On February 16, 2005, Plaintiff underwent right and left heart catheterization, selective coronary angiography and aortography, performed by Dr. Lepor. (AR 789-791.)

LINA extended Plaintiff's short-term disability benefits on February 17, 2005, finding Plaintiff was "symptomatic even at rest." (AR 201, 847-848, 838-839.) In February 2005, LINA determined that Plaintiff's job was "sedentary." (AR 874, 724-728.) Plaintiff described her job as assisting in the trading process, trades input, confirm, allocate and settle. (AR 772-775.) She also paid office expenses, maintained compliance files, and worked with vendors. (AR 772-775.) On May 20, 2005, UBS submitted Plaintiff's job description to LINA and confirmed that her job required mental acuity and that she worked in a "Highly stressful environment -- Strong multi-tasking environment." (AR 1073.)

The following month, Plaintiff's internist, Dr. Flyer, diagnosed Plaintiff with recurrent aortic valve stenosis and chest wall pain syndrome. (AR 743-744.) Dr. Flyer filled out a Physical Ability Assessment Form which indicated that Plaintiff could frequently sit, kneel, crouch, and perform fine manipulation, and occasionally push, pull, climb, balance, work extended shifts and overtime, and lift and carry ten to twenty pounds. (AR 743-744.)

On May 2, 2005, Plaintiff reported to LINA that shortness of breath and pain made it difficult for her to speak, she suffered headaches and chest pain, in addition to back pain with writing or typing, and found it difficult to concentrate or drive. (AR 772-775.)

Beginning May 24, 2005, LINA began paying Plaintiff long-term disability benefits pursuant to the Disability Policy. (AR 807.) LINA concluded that Plaintiff maintained unresolved cardiac issues which precluded her from working in a sedentary position. (AR 738-739.) LINA also determined that Plaintiff had "no functional capacity at present." (AR 135.) That same month, Plaintiff filed a claim for social security disability benefits through Advantage 2000, a company which provides technical support to individuals and employee benefit plan administrators, including LINA, in establishing entitlement to Social Security disability benefits. (AR 759.)

In October 2005, LINA received reports from June 2005 by cardiologist Drs. Fontana and Azita Farr. (AR 664-660.) Dr. Fontana noted that Plaintiff's chest pain was a limiting symptom and recommended pain management. (AR 667-668.) He further noted that the results of prior catheterization revealed "some mild to moderate degeneration of her pulmonary homograft only two years post surgery." (AR 667-668.)

Plaintiff then began pain management with specialist Jason Hymes, M.D. (AR 113.) Dr. Hymes diagnosed Plaintiff with "Intercostal Neuralgia,... sustained nerve damage after cardiothoracic surgery," and noted that "medication management, as yet unhelpful, multiple potential side effects anticipated would anticipate several months 4-6 before good control could be achieved." (AR 643.) Dr. Hymes indicated that Plaintiff's prognosis was "fair, at best." (AR 643.)

A note in Plaintiff's file dated February 1, 2006, indicates that Plaintiff informed a LINA claims representative that she wanted to try to return to work for four hours a day, and sought vocational assistance. (AR 110.)

On February 14, 2006, Plaintiff was advised by Advantage 2000 that her social security claim had been denied and would be appealed. (AR 613-614.)

On July 28, 2006, Dr. Flyer noted that Plaintiff had "chronic diffuse body pain and fatigue aggravated by activity[,]" and was "unable to sit, bend, lift, use upper extremities, and focus mentally on assigned tasks for any prolonged period." (AR 541.) On October 24, 2006, Dr. Flyer completed a form requested by Advantage 2000, on which he stated that Plaintiff had fibromyalgia, demonstrated 14 of 18 tender points, and suffered pain with activity, poor concentration, and poor sleep. (AR 510.) Dr. Flyer again noted that Plaintiff was "unable to stand, carry, lift or perform focused activity [for] greater than 1-2 hours." (AR 509.) He also stated that Plaintiff's pain/fatigue "constantly" interfered with her ability to concentrate. (AR 509-510.) On July 5, 2006, Dr. Flyer noted that Plaintiff was doing somewhat better, becoming gradually more active, and Plaintiff was planning a trip to Boston. (AR 498.)

Plaintiff's echocardiogram, taken on September 26, 2006, showed normal left ventricular size and function without wall motion abnormality, an ejection fraction of 56 percent, mildly increased mitral valve leaflet thickening, moderate mitral regurgitation, mild-moderate aortic insufficiency, trace pulmonary regurgitation, and mild tricuspid regurgitation. (AR 528.)

On November 13, 2006, LINA advised Plaintiff that the Policy definition of disability would change from "own occupation" to "any occupation" and that it had commenced a review to determine whether plaintiff would remain eligible for benefits. (AR 338-339.) That day, Dr. Lepor provided LINA with a completed Medical Request Form which advised that Plaintiff was suffering from "severe aortic insufficiency" and "mod[erate] mitral regurgitation," but could return to work "anytime," with specific restrictions of no lifting greater than 15 pounds and for Plaintiff to limit straining activities. (AR 522.) Dr. Lepor also provided LINA with a completed Physical Ability Assessment Form, on which he noted that Plaintiff continuously could sit, stand, manipulate and simple grasp; frequently could walk and firm grasp; and occasionally reach, lift, carry ten pounds, push and pull 15 pounds, and climb. (AR 523-524.)

On November 27, 2006, Plaintiff advised LINA that she continued to have chest and back pain, loss of voice increased by activity and stress, and was unable to focus due to pain and medications. (AR 452-454.) She noted that she drove only as necessary and was very limited in her activities. (AR 452-454.)

In February 2007, Dr. Hymes noted in Plaintiff's records that her pain had been going up and down, but that her speech was clear. (AR 472.) Dr. Hymes also completed a Physical Ability Assessment Form, in which he reported that Plaintiff continuously could reach, manipulate and simple grasp; frequently sit and firm grasp; occasionally walk, lift and carry ten pounds, climb stairs, stoop, kneel, crouch and crawl. (AR 465, 468.) Dr. Hymes does not appear to have offered any specific opinion on whether Plaintiff was ready to return to work at that time.

Dr. Flyer's office notes from February 2007 reflect that Plaintiff was doing somewhat better, and that her fibromyalgia was stable. (AR 298.) However, Dr. Flyer indicated that Plaintiff could not work due to aortic valve replacement surgery done in March 2003 and fibromyalgia. (AR 493, 494, 495, 509, 541.) He noted restrictions of no repetitive lifting, bending, transferring, standing or walking, and that activity aggravated Plaintiff's pain and fatigue. (AR 493, 494, 495, 509, 541.) LINA contacted Dr. Flyer in March 2007 to clarify his clinical rationale for the restrictions he had provided. (AR 433.) Dr. Flyer indicated that tender points identified upon exam "confirmed [Plaintiff's] diagnosis of fibromyalgia, a condition involving altered pain thresholds of the spinal cord level. Her function is impaired by activity-induced pain aggravation." (AR 433.) Dr. Flyer further stated that "[a] functional history review confirms ongoing pain aggravation with certain activities including use of upper extremities, bending, prolonged walking." (AR 433.) LINA characterized Dr. Flyer's report as lacking "objective physical or cognitive clinical findings that impair [Plaintiff's] function." (AR 61.)

LINA terminated Plaintiff's benefits by a letter dated March 14, 2007, in which LINA advised, "Neither of your specialists, Dr. Lepor or Dr. Hymes, provided any restrictions to preclude you from your Sedentary occupation... Although Dr. Flyer reported that you could not return to work, the medical information on file does not support any restrictions to preclude you from full-time Sedentary work. Your recent exam findings have been minimal and have failed to provide any significant clinical findings to support the restrictions. Dr. Flyer's restrictions are based solely on your subjective complaints of pain." (AR 430.)

On May 11, 2007, the Social Security Administration found Plaintiff to be totally disabled; the Administrative Law Judge (ALJ) agreed. (AR 418.) The ALJ stated in part: "I found [Plaintiff to be] disabled on November 23, 2004 because of Heart disease with serious narrowing of the aorta and pulmonary artery and Fibromyalgia so severe that [her] impairments medically equal the requirements for one of the impairments listed in the Listing of Impairments." (AR 399.) Advantage 2000 provided LINA with the decisions of the Social Security Administration and ALJ. (AR 398-405.) Attached to the award was a list of exhibits considered by the ALJ, which included the findings of the Social Security Administration's independent cardiologist. (AR 404-405.)

Plaintiff appealed LINA's decision on May 14, 2007. (AR 418-453.) In connection with her appeal, Plaintiff submitted a May 4, 2007 letter from Dr. Hymes, which stated that Plaintiff was taking medications that caused cognitive impairment and drowsiness from time to time throughout the day, was heavily impaired in reaching, unable to sit longer than ten minutes, encountered pain on a daily basis that significantly impaired her ability to sit, stand and walk, was severely disabled with lifting greater than 1 to 2 pounds, and rendered incapacitated at some times she stooping, kneeling, or crouching. (AR 420.) Dr. Hymes noted that Plaintiff's history of open heart surgery contributed to her pain, which was diagnosed as intercostal neuralgia and myofascial pain syndrome of the right anterior ribcage. (AR 420.) The letter further stated that Plaintiff's disability "is of the permanent state." (AR 420.)

LINA's medical director reviewed Plaintiff's file. (AR 379.) LINA upheld its decision by letter dated July 25, 2007, noting that Dr. Lepor indicated that no restrictions were imposed and that no testing had been provided to support a functional loss or severity in symptoms indicating that Plaintiff was incapable of performing the duties of her regular occupation. (AR 377.) The letter did not discuss the award from the Social Security Administration. (AR 379.)

On September 20, 2007, Dr. Lepor submitted another Physical Ability Assessment Form to LINA, which indicated that Plaintiff could frequently sit, fine manipulate and simple grasp, but could only occasionally walk, stand, reach, lift, carry, push and pull. (AR 367-368.) The form did not specifically ask Dr. Lepor if Plaintiff could return to work. On October 10, 2007, LINA advised Plaintiff that Dr. Lepor had ...


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