   09-2284-cv
   Richard v. The Hartford Life and Accident Ins. Co.


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED B Y FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
   Daniel P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the
   24th day of February, two thousand and ten.

   PRESENT:          AMALYA L. KEARSE,
                     PETER W. HALL,
                                                         Circuit Judges,
                     JED S. RAKOFF*
                                                         District Judge.

   --------------------------------------------------------------------x
   PATRICIA LYNN RICHARD,

                                                Plaintiff-Appellant,
            -v.-                                                              No. 09-2284-cv

   FLEET FINANCIAL GROUP INCORPORATED LTD
   EMPLOYEE BENEFITS PLAN and THE TRUSTEE
   AND ADMINISTRATOR OF FLEET FINANCIAL
   GROUP INCORPORATED LTD EMPLOYEE
   BENEFITS PLAN,

                                                Defendants,

   THE HARTFORD LIFE AND ACCIDENT INSURANCE
   COMPANY,

                                                Defendant-Appellee.
   -------------------------------------------------------------------x


            *
            Judge Jed S. Rakoff of the United States District Court for the Southern District of New
   York, sitting by designation.

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APPEARING FOR THE APPELLANT:                  PHILLIP G. STECK, Cooper Erving & Savage
                                              LLP, Albany, New York.

APPEARING FOR THE APPELLEE:                   BYRNE J. DECKER, Pierce Atwood LLP,
                                              Portland, Maine.

       Appeal from a judgment of the United States District Court for the Northern District of New

York (Hurd, J.). UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Patricia Lynn Richard (“Richard”) appeals the district court’s judgment

granting the motion of defendant-appellee The Hartford Life and Accident Insurance Company (“the

Hartford”) for summary judgment and denying Richard’s cross-motion for summary judgment, in

this case brought under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq., challenging the Hartford’s termination of her long-term disability benefits.

We assume the parties’ familiarity with the factual and procedural history of this case and with the

issues raised on appeal.

       “In an ERISA action, we review the district court’s grant of summary judgment based on the

administrative record de novo and apply the same legal standard as the district court.” Hobson v.

Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009). Where “written plan documents confer upon

a plan administrator the discretionary authority to determine eligibility, we will not disturb the

administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’” Id. (quoting Pagan v.

NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995)). “Under the arbitrary and capricious

standard of review, we may overturn an administrator’s decision to deny ... benefits ‘only if it was

without reason, unsupported by substantial evidence or erroneous as a matter of law.’” Id. (quoting

Pagan, 52 F.3d at 442). “This scope of review is narrow[;] thus[,] we are not free to substitute our




                                                 2
own judgment for that of [the administrator] as if we were considering the issue of eligibility anew.”

Id. at 83-84 (quoting Pagan, 52 F.3d at 442) (alterations in Hobson).

       We conclude that the Hartford’s decision to terminate Richard’s benefits was reasonable and

supported by substantial evidence. The Hartford does not dispute that Richard suffers from chronic

fatigue syndrome (“CFS”), and contends only that, after August 2001, the symptoms of CFS no

longer prevented Richard from performing sedentary work of the nature she performed before

becoming disabled. Our review of the record confirms that there is considerable objective evidence

on which the Hartford could reasonably have based this conclusion, including: (1) surveillance

videos showing Richard engaged in animated behavior for a 52-minute period after a town hall

meeting; (2) her husband’s statement to the Hartford’s investigator that Richard would run their

tanning and exercise salon business1; (3) Richard’s answering of three seemingly business-related

phone calls, and meeting with a sign contractor who was displaying a version of a sign on the front

window of the salon business, during the investigator’s interview; (4) Dr. Peter Maggiore’s

acknowledgment that the video surveillance evidence was “disquieting” in light of Richard’s self-

reported symptoms, and his interpretation that “she should be able to return to at least a light

capacity[] work level”; (5) an occupational therapy assessment from Albany Medical Center

concluding that “[s]he may benefit from a progressive vocational program to increase her tolerance

to a routine work day”; (6) a neuropsychological evaluation from Dr. Andrew Labarge, who

performed a battery of tests on Richard and concluded that she “generally performs within normal

limits on this evaluation and her subjective report of functional difficulties appears to exceed her

objective [difficulties]”; (7) Dr. Maggiore’s subsequent refusal to sign a letter drafted by Richard’s



       1
         Although Richard’s husband years later, in an affidavit, denied making this statement
and denied that Richard was involved in running the business, this affidavit was not supplied to
the Hartford during the claims process and is outside of the administrative record.

                                                  3
attorney, and his citation of the occupational therapy report and Dr. Labarge’s report as reasons why

(8) Dr. Forrest’s concessions to the independent evaluator, Dr. Beth Aaronson, that there were

minimal objective data to show that Richard could not perform sedentary work, that her physical

exam was essentially normal, and that he had been taking her “at her word” with respect to her

subjective symptoms; and (9) Dr. Aaronson’s own independent review of the claim file as a board-

certified specialist in rehabilitation and her ultimate conclusion that Richard could perform sedentary

work. However we might resolve this case if we were considering the evidence in the first instance,

we cannot find the Hartford’s decision based on this evidence to be arbitrary and capricious.

       Richard’s other arguments are without merit. Her deposition of Dr. Aaronson is not

admissible to challenge the merits of the administrator’s decision. See Miller v. United Welfare

Fund, 72 F.3d 1066, 1071 (2d Cir. 1995). Although extra-record evidence might sometimes be

admissible to assist procedural inquiries, see Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646-47 (2d

Cir. 2002), here Richard seeks to introduce extra-record evidence to challenge the Hartford’s

substantive determination, and it is not admissible for that purpose. Furthermore, although we must

give some weight to the Hartford’s conflict of interest as both evaluator of Richard’s claim and payor

of her benefits, see McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008) (citing

Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348 (2008)), “[a] plaintiff’s showing that the

administrator’s conflict of interest affected the choice of a reasonable interpretation is only one of

‘several different considerations’ that judges must take into account when ‘review[ing] the

lawfulness of benefit denials.’” Hobson, 574 F.3d at 83 (quoting McCauley, 551 F.3d at 133)

(alteration in original). Here, given the substantial evidence supporting the administrator’s

determination, we do not find that the Hartford’s role as both evaluator and payor improperly tipped

the balance.



                                                  4
        Richard’s suggestion that the Hartford failed to consider all of the evidence is meritless. In

its initial decision and at each stage of appeal and independent review, the Hartford set forth an

exhaustive list of the evidence it had considered, and it also offered Richard multiple opportunities

on appeal to support her claim with additional objective evidence. Finally, there is no merit to

Richard’s contention that the Hartford was required to explain why its decision differed from that

of the Social Security Administration (“SSA”). Contrary to Richard’s argument, Hobson does not

require any such explanation. This Court certainly “encourage[d] plan administrators, in denying

benefits claims, to explain their reasons for determining that claimants are not disabled where the

SSA arrived at the opposite conclusion.” Id. (emphasis added). But, “especially in light of the

substantial evidence supporting [the administrator’s] determination,” the Court “decline[d] to hold

that ... failure to do so ... renders ... denial of [ERISA] benefits ... arbitrary and capricious.” Id.

        We have considered all of Richard’s other arguments on appeal and find them to be without

merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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