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Cowern v. Prudential Insurance Co. of America

United States District Court, D. Massachusetts

September 14, 2015

JULIE COWERN, Plaintiff,

         Decided September 11, 2015.

Page 444

          For Julie Cowern, Plaintiff: Mala M. Rafik, LEAD ATTORNEY, Socorra A. Glennon, Rosenfeld Rafik & Sullivan, P.C., Boston, MA.

         For The 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.

Page 445



         I. Introduction

         In this 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 Plan (the

Page 446

" 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 Summary Judgment).]

         Ms. 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 opinion.

         II. Background[1]

         From 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.]

         On 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.

         A. The LTD Plan

         Ms. 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.]

         The LTD 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

Page 447

unless arbitrary and capricious." [R. 38.]

         To be 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).][2]

         Even if 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).][3] 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.

[R. 23.]

         Prudential 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).][4]

         Prudential 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

Page 448

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.

         B. Procedural History

         Ms. 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.]

         Ms. 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.]

         After 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.]

         In January and March 2010, at Prudential's request, covert video surveillance was conducted of Ms. Cowern. This surveillance is discussed below.

         Throughout 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. 2229-31.]

         In a 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 payable. [Id.]

         On 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.]

Page 449

          On 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.]

         On 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.[5] [R. 377-386.]

         On 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.]

         On 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.]

         On 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.

         C. Ms. Cowern's Medical Records

         Since 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 condition.[6]

Page 450

          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.

         The 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.]

         In 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." [7]

         The 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.]

         The 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 summary judgment.

         Ms. Cowern's Medical and Vocational Professionals

         1. Dr. Joseph Harrington (Ms. Cowern's Primary Care Physician)

         Dr. Harrington has been Ms. Cowern's primary care physician since 2002. [R. 1860.] In notes dated November 17, 2009, Dr. Harrington wrote:

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

Page 451

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.

[R. 1081.]

         In a 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.]

         In a 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.]

         2. Dr. Steven Fine (Ms. Cowern's Gastroenterologist)

         Dr. 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.]

         In the 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,[8] 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.


         Dr. 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.]

         3. Dr. Norton Greenberger (Ms. Cowern's Gastroenterologist)

         Another treating gastroenterologist, Dr. Greenberger, stated in a letter dated May 3, 2011:

Page 452

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.]

         4. Dr. Eileen Winston (Ms. Cowern's Rheumatologist)

         Dr. 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[9] 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 maximum.

[R. 1974.] Dr. Winston further stated that Ms. Cowern suffered from

[a]cute episodes of abdominal pain with fever, leukocytosis, shaking chills by description, skin lesions reportedly consistent ...

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