United States District Court, D. Massachusetts
September 11, 2015.
Julie Cowern, Plaintiff: Mala M. Rafik, LEAD ATTORNEY,
Socorra A. Glennon, Rosenfeld Rafik & Sullivan, P.C., Boston,
Prudential Insurance Company of America, Staples Voluntary
Long Term Disability Plan, Defendants: Amanda Sonneborn, LEAD
ATTORNEYS, PRO HAC VICE, SEYFARTH SHAW LLP, Chicago, IL;
Michael D. Fleischer, Seyfarth Shaw, Boston, MA.
MEMORANDUM AND ORDER
D. BURROUGHS, UNITED STATES DISTRICT JUDGE.
action brought under the Employee Retirement Income Security
Act of 1974, 29 U.S.C. § § 1001 et seq. ("
ERISA" ), Julie Cowern (" Ms. Cowern" )
challenges the decision of The Prudential Insurance Company
of America (" Prudential" ) to terminate her
benefits under the Staples Voluntary Long Term Disability
" LTD Plan" ), administered and underwritten by
Prudential and sponsored by her former employer, Staples,
Inc. (" Staples" ). [Dkt. 1.] Ms. Cowern seeks
relief pursuant to 29 U.S.C. § 1132(a)(1)(B), which
provides that " [a] civil action may be brought . . . to
recover benefits due . . . under the terms of [a] plan, to
enforce [the] rights under the terms of the plan, or to
clarify [the] rights to future benefits under the terms of
the plan . . . ." [Dkt. 1.] The parties have cross-moved
for summary judgment. [Dkt. 49 (Defendants' Motion for
Summary Judgment); Dkt. 51 (Plaintiff's Motion for
Cowern seeks the reinstatement of benefits under the LTD
Plan; the retroactive award of benefits, with interest, from
the date of termination by Prudential until the present; and
the award of statutory penalties, attorney's fees and
costs as provided by 29 U.S.C. § 1132(g). [Dkt. Nos. 1,
51, 52.] The defendants seek summary judgment on all claims
raised in Ms. Cowern's complaint. [Dkt Nos. 49, 50.] For
the reasons explained in this opinion, both motions for
summary judgment are DENIED. The Court holds that
Prudential's decision to terminate benefits was arbitrary
and capricious, and the case is therefore REMANDED to
Prudential for further proceedings consistent with this
July 1998 to September 2009, Ms. Cowern was employed by
Staples as a " Programmer/Analyst." [R. 111, 172.]
She first experienced gastrointestinal (" GI" )
symptoms in the early 1990s. [R. 108, 172.] In the late
1990s, her GI symptoms increased in duration and severity,
and she began experiencing acute attacks of symptoms. [Id.]
Her symptoms have included, inter alia, diarrhea, bloody
stools, vomiting, exhaustion, fevers, abdominal pain and
swelling, joint pain and swelling, nausea, and skin lesions.
[R. 172-73.] Due to her worsening symptoms, Ms. Cowern was
" in and out of work" for increasing periods of
time. [R. 108, 115, 172-73.] By 2008, she was " out of
work for months at time . . . ." [R. 108, 173.]
April 24, 2009, Ms. Cowern stopped working due to her
symptoms. [R. 2044, 2134.] On September 1, 2009, she
attempted to return to work. However, she left work again two
weeks later, on September 16, 2009, on the recommendation of
her primary care physician, Dr. Joseph Harrington (" Dr.
Harrington" ), who instructed her to remain out of work
indefinitely. [R. 2134-35.] She has not worked since then.
The LTD Plan
Cowern's LTD benefits are governed by the terms of the
LTD Plan. [R. 1-53.] The LTD benefits are fully insured by
Prudential, and therefore, any such benefits are payable by
Prudential. [Dkt. 50 at 3.] The LTD Plan is sponsored by
Staples, Ms. Cowern's former employer, and consists of a
Group Contract, Certificate of Insurance, and Summary Plan
Description. [R. 1-53; see also Dkt. 50 at 2-3.]
Plan names Prudential as the Claims Administrator and
provides that " [t]he Prudential Insurance Company of
America as Claims Administrator has the sole discretion to
interpret the terms of the Group Contract, to make factual
findings, and to determine eligibility for benefits. The
decision of the Claims Administrator shall not be overturned
unless arbitrary and capricious." [R. 38.]
eligible for benefits under the LTD Plan, a claimant must be
determined to be disabled within the meaning of the LTD Plan.
The plan defines disability as follows:
How Does Prudential Define Disability?
You are disabled when Prudential determines that:
o you are unable to perform the material and substantial
duties of your regular occupation due to your
sickness or injury; and
o you have a 20% or more loss in your indexed monthly
earnings due to that sickness or injury.
After 24 months of payments, you are disabled when Prudential
determines that due to the same sickness or injury, you are
unable to perform the duties of any gainful
occupation for which you are reasonably fitted by
education, training or experience.
[R. 14 (emphasis in original).]
a claimant is found to be disabled as defined in the LTD
Plan, certain disabilities have a lifetime limitation of 24
months (meaning that the benefits terminate after a total of
24 months, whether consecutive or not). This limitation
applies to " [d]isabilities due to a sickness or injury
which, as determined by Prudential, are primarily based on
self-reported symptoms" (the " SRS
limitation" ). [R. 22 (emphasis in
original).] The LTD Plan defines "
self-reported symptoms" as follows:
Self-reported symptoms means the manifestations of
your condition, which you tell your doctor, that are not
verifiable using tests, procedures and clinical examinations
standardly accepted in the practice of medicine. Examples of
self-reported symptoms include, but are not limited to
headache, pain, fatigue, stiffness, soreness, ringing in
ears, dizziness, numbness and loss of energy.
provides internal guidelines to the " LTD Teams"
that evaluate claims for LTD benefits. [R. 2292.] This
includes the following guidance on the SRS limitation:
When evaluating a claim where the SRS limitation applies, you
need to consider manifestations of the condition.
Consider whether the manifestations are based in the
claimant's subjective reports or the product of objective
findings. Consider whether the manifestation (i.e. feelings
of pain, fatigue, dizziness, cognitive loss) can be linked to
an objective finding (such as an MRI, x-ray,
neuropsychological testing, et al.) If such a link cannot be
made, application of the SRS limit may be appropriate. When
evaluating such a situation, it is suggested that you consult
with a clinical resource. An important distinction to be made
when considering application of the SRS limit is that the
manifestations of a condition should be the focus,
rather than the diagnosis. Several diagnoses can be
determined without the manifestations being verifiable.
[R. 2293 (emphasis in original).]
asserts that it was justified in applying the SRS limitation
to terminate Ms. Cowern's benefits and in denying her
subsequent appeals, because her condition
is primarily based on self-reported symptoms and is not
supported by objective medical evidence. [E.g., R. 2236-38,
2252-56.] Ms. Cowern disputes Prudential's decision to
apply the SRS limitation to her situation and further argues
that Prudential's review of her claim was improperly
selective in various ways that are discussed below.
Cowern applied for short-term disability (" STD" )
benefits under the Group Plan, claiming disability due to
inflammatory bowel disorder with abdominal pain beginning on
April 25, 2009. [R. 2044, 2129-31, 2221.] On June 1, 2009,
Prudential approved STD benefits effective May 2, 2009
through June 7, 2009. [R. 2195.] Prudential subsequently
extended STD benefits through August 31, 2009. [R. 2221.]
Cowern then applied for LTD benefits, which Prudential
initially approved on October 7, 2009, effective October 29,
2009. [R. 2222.] The initial approval was based on a review
of Ms. Cowern's medical records by Dr. David Dickison
(" Dr. Dickison" ), an occupational medicine doctor
retained by Prudential. [R. 2131-46.]
the initial approval, Prudential requested an internal
medical review, which was conducted by Dr. Richard Day
(" Dr. Day" ), a Prudential employee. In a report
dated February 17, 2010, Dr. Day concluded that Ms. Cowern
was out of work due to self-reported symptoms and not due to
an objectively verifiable medical reason. [R. 2121-26.]
January and March 2010, at Prudential's request, covert
video surveillance was conducted of Ms. Cowern. This
surveillance is discussed below.
2010, Prudential continued to review Ms. Cowern's medical
records, including updates thereto. In a letter dated
September 20, 2010, Prudential, quoting the LTD Plan's
definition of disability and the 24-month limitation for
certain disabilities, informed Ms. Cowern that unless she
provided additional evidence to support her claim, the "
initial 24 month period of disability" would end and her
LTD benefits would terminate on October 29, 2011. [R.
letter dated September 15, 2011, Prudential again informed
Ms. Cowern that her LTD benefits would terminate on October
29, 2011, citing the SRS limitation. [R. 2236-38.] The letter
also informed Ms. Cowern of the reasons for Prudential's
decision to apply the SRS limitation, and reiterated that
because she had not provided additional evidence to support
her claim of continued disability, no further benefits were
September 20, 2011, Ms. Cowern appealed Prudential's
decision to terminate her LTD benefits. [R. 1802-03.] The
parties exchanged several letters, and Ms. Cowern submitted
additional medical information for consideration in the
appeal, which Prudential acknowledged receiving in a letter
dated April 26, 2012. [R. 2246.] Prudential then submitted
her medical records to a multidisciplinary review panel
consisting of Dr. Elena Antonelli (" Dr. Antonelli"
), an occupational medicine physician, and Dr. Raj
Vuppalanchi (" Dr. Vuppalanchi" ), a
gastroenterologist. [R. 794-827, 2252-56.]
August 15, 2012, Prudential denied Ms. Cowern's first
appeal, citing a lack of objective support for her symptoms.
[R. 2252-56.] Prudential concluded that her condition was
based on self-reported symptoms, and thus, that the SRS
limitation applied. [R. 2255.]
February 7, 2013, Ms. Cowern filed a second appeal with
Prudential. Prudential sent her medical records to a second
multidisciplinary review panel consisting of Dr. Antonelli
and Dr. Thomas Liebermann (" Dr. Liebermann" ), a
gastroenterologist. Prudential also asked Dr. Rajesh Wadhwa
(" Dr. Wadhwa" ), an occupational medicine
physician, to conduct an additional review of the medical
records, and to review the assessments of the two
multidisciplinary panels. Further, Prudential requested a
vocational report, which was prepared by Frances Grunden, MS,
CRC. [R. 377-386.]
August 29, 2013, Prudential denied Ms. Cowern's second
appeal, finding that the medical records did not contain
objective evidence of pain, but reflected only self-reported
pain, and that there was no objective evidence of
work-related restrictions or limitations. [R. 2264-69.]
Prudential concluded that the medical and vocational records
provided by Ms. Cowern indicated that she could perform
" the material and substantial duties of her sedentary
occupation as a Principal Programmer Analyst." [R.
2269.] Prudential further determined that the records "
lack consistent documentation of impairment," and that
her purported " inability to work in any occupation is
based on Ms. Cowern's self-reports." [Id.]
January 17, 2014, Ms. Cowern filed a complaint in this Court.
[Dkt. 1.] The case was originally assigned to Judge Richard
G. Stearns. On August 11, 2014, Ms. Cowern filed a "
Motion for Limited Pre-Trial Discovery and to Expand the
Scope of the Judicial Record." [Dkt. 27.] She sought
discovery of, among other things, information concerning
Prudential's conflict of interest, which she alleged went
" far beyond the structural conflict of interest
inherent in Prudential's role as both the administrator
of Ms. Cowern's claim and the payer of her
benefits." [Dkt. 27 at 2.] The defendants opposed this
request [Dkt. 31], and on October 16, 2014, Judge Stearns
denied it on the ground that Ms. Cowern had " not
identified any specific irregularities, unfairness or actual
bias in the determination of her claims that would warrant
the broad discovery she seeks . . . ." [Dkt. 34.]
February 10, 2015, the parties cross-moved for summary
judgment. [Dkt. Nos. 49-52.] The parties filed oppositions on
March 12, 2015 [Dkt. Nos. 54-55] and reply briefs on March
31, 2015 [Dkt. Nos. 58-59]. On March 24, 2015, this action
was randomly reassigned to the undersigned. The Court has
carefully considered all of the parties' briefs and the
administrative record in rendering this decision.
Ms. Cowern's Medical Records
the onset of her abdominal condition in the 1990s, Ms. Cowern
has been treated by at least ten of her own medical
professionals, including several gastroenterologists and
rheumatologists. She also engaged the services of an
occupational therapist and a vocational consultant in
connection with her claim for disability benefits. She has
sought treatment at the emergency room on multiple occasions.
[E.g., R. 924-940.] In July 2011, she had exploratory
laparoscopic surgery in an attempt to diagnose her
Prudential also retained professionals to review Ms.
Cowern's medical records and opine on her condition.
These professionals included six physicians with board
certifications, including in occupational medicine and
gastroenterology, two registered nurses, and one vocational
consultant. None of the Prudential-retained professionals
physically examined Ms. Cowern.
record reflects that no one, including Ms. Cowern's
treating doctors, has been able to diagnose her condition
definitively. However, at least three doctors--Dr. Norton
Greenberger (Ms. Cowern's treating gastroenterologist),
Dr. Antonelli (an occupational medicine physician retained by
Prudential), and Dr. Liebermann (a gastroenterologist
retained by Prudential)--opined that Ms. Cowern might be
suffering from " narcotic bowel syndrome" due to
her longterm use of morphine. Relatedly, Prudential's
Medical Director, Dr. Wadhwa (an occupational medicine
physician) opined that Ms. Cowern's narcotic use "
introduces a confounding factor in the clinical
picture." [R. 2066.]
December 2009, Prudential engaged FactualPhoto, a
surveillance services firm, to conduct covert video
surveillance of Ms. Cowern. FactualPhoto conducted the
surveillance on January 6, 7, 8, and 9, 2010. [R. 67,
1898-1905; see also Dkt. 52 at 13.] In March 2010, Prudential
directed FactualPhoto to conduct further surveillance, which
occurred on March 11, 12, 13, 14 and 15, 2010. [R. 67,
1887-97; see also Dkt. 52 at 13.] The surveillance footage
was reviewed by many of the medical professionals retained by
Prudential, including Drs. Antonelli, Vuppalanchi, Day and
Liebermann. The reviewing doctors assigned differing weights
to the surveillance footage, and came to differing
conclusions. For example, Dr. Antonelli found that the
surveillance confirmed Ms. Cowern's ability to work in a
sedentary occupation; Dr. Liebermann, conversely, found that
the footage provided " no significant information."
parties agree that Ms. Cowern's occupation of
programmer/analyst is sedentary, and that any gainful
occupation for which she is reasonably suited is sedentary.
However, as detailed below, professional opinions as to
whether she is able to perform the duties of a sedentary
occupation have varied drastically. The medical and
vocational professionals who have expressed an opinion on
this issue have been largely (but not entirely) divided along
the lines of which party retained them. One notable exception
is gastroenterologist Dr. Liebermann, retained by Prudential,
who stated: " I personally doubt the claimant can return
to work on a fulltime basis due to the intensity of her
symptoms and also the use of substantial amount of narcotics
that she is by now habituated to." [R. 384.]
administrative record exceeds two thousand pages. The record
contains numerous conflicting interpretations, opinions and
conclusions. The following is a summary of those opinions
that are most salient to the parties' cross-motions for
Cowern's Medical and Vocational Professionals
Dr. Joseph Harrington (Ms. Cowern's Primary Care
Harrington has been Ms. Cowern's primary care physician
since 2002. [R. 1860.] In notes dated November 17, 2009, Dr.
Julie is now on long-term disability from work due to her
chronic abdominal pain and frequent exacerbations of diarrhea
and lethargy. Despite continued aggressive
evaluation a diagnosis remains elusive. . . . [T]his weekend
she had numerous loose watery bowel movements, but became
bloody over time. . . . To date, labs done during episodes
have been unrevealing. . . . Severe abdominal pain . . .
occurs intermittently, but increasingly frequent and severe.
. . . She remains disabled and not able to work due to these
frequent episodes that made it impossible for her to maintain
a position at Staples.
letter dated September 16, 2010, Dr. Harrington stated that
" [m]ost of the doctors involved in her care believe her
to have some variant of inflammatory bowel disease. At times
we have had objective evidence with CT scans showing colonic
inflammation, colonoscopy revealing hemorrhagic colitis, and
biopsies consistent with that diagnosis." [R. 1860.]
letter dated April 4, 2012, Dr. Harrington provided an update
regarding Ms. Cowern's condition. He noted that during
" periods of exacerbation," she experienced "
frequent diarrhea, often bloody, fever, tremendous fatigue,
and loss of appetite." [R. 982.] He stated that "
[o]bjectively during these episodes we have documented
elevation in white blood cell counts on frequent occasions .
. . . Other objective findings include a CT of abdomen and
pelvis in April 2009 [which] showed diffuse thickening of
right colon and segmental colitis." [Id.] Another CT
performed in February 2006 showed " active inflammation
in sigmoid colon compatible with active inflammation."
[Id.] He concluded that " [c]ertainly I cannot see her
returning to her previous occupation that she held at Staples
or to any position with a similar job description, unless she
has some future, and at this time unforeseen, improvement in
her condition." [R. 983.]
Dr. Steven Fine (Ms. Cowern's
Fine is Ms. Cowern's treating gastroenterologist. In a
letter dated June 1, 2012, Dr. Fine stated:
Although there is no clear diagnosis, it is clear that her
problem is multi-system in nature and involve[s] inflammatory
processes. We have approached her [case] as some variant of
inflammatory bowel disease, as her inflammatory processes
have affected the bowel, joints, and the skin. Therefore, I
would call her diagnosis a multi-system inflammatory disease.
[R. 769; see also Dkt. 52 at 7.]
same letter, Dr. Fine responded to Prudential's "
comments regarding her inappropriateness for disability
because her disease process does not give objective
findings." [R. 769.] He opined:
[T]his statement is incorrect. Throughout her evaluation, and
what is clear in her records is evidence of
leukocytosis, bowel inflammation seen on biopsy as
well as CT scan, and I have spoken directly with her
rheumatologist who has found inflammatory changes on the exam
of her joints. She has also had skin lesions. Her disease has
both acute and chronic components.
Fine further commented in this letter, " I have read
concerns that her symptoms are self-reported and therefore
cannot be validated. However, . . . symptoms by their very
nature are self-reported. It is inappropriate to ignore a
patient's symptoms when there are indeed objective
findings as noted above." [Id.]
Dr. Norton Greenberger (Ms. Cowern's
treating gastroenterologist, Dr. Greenberger, stated in a
letter dated May 3, 2011:
I think, with her longstanding morphine use, that she does
have a narcotic bowel syndrome, and such patients can have
alternating diarrhea and constipation, and worsening
abdominal pain, with a " crash" and "
soar" phenomenon . . . . She also has features of
irritable bowel syndrome. Some of this may be diet related .
. . . I think the very detailed and extensive studies done by
Dr. Fine and Dr. Harrington have ruled out unusual causes of
abdominal pain, . . . and there is no evidence that she has
inflammatory bowel disease. Furthermore, all of her
inflammatory bowel markers are negative.
[R. 1041.] He further stated that Ms. Cowern " may have
a mast cell activation syndrome." [Id.]
Dr. Eileen Winston (Ms. Cowern's Rheumatologist)
Winston was Ms. Cowern's rheumatologist between at least
2009 and 2011. [R. 1668-1671, 1973-79.] In a letter dated
October 1, 2009, Dr. Winston stated that Ms. Cowern
says that for at least 10 years she has had recurrent
attacks. They begin with generalized malaise, abdominal pain
with nausea, she develops diarrhea, skin lesions that by
biopsy have been said to be most consistent with erythema
nodosum and she develop[s] a low-grade fever
of 100-101 frequently associated with shaking chills. She has
eczema that also seems to flare with these attacks. She says
abdominal pain is really severe. It comes on within an hour
and last[s] 3-4 weeks at the minimum and months at the
[R. 1974.] Dr. Winston further stated that Ms. Cowern
[a]cute episodes of abdominal pain with fever, leukocytosis,
shaking chills by description, skin lesions reportedly