                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
JILL MARCIN,                        )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 10-1816 (ABJ)
                                    )
RELIANCE STANDARD LIFE              )
INSURANCE COMPANY, et al.,          )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

        Plaintiff Jill Marcin brings this suit against defendants Reliance Standard Life Insurance

Company (“Reliance”) and Mitre Corporation Long Term Disability Insurance Program

(“Mitre”) under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et

seq. Plaintiff challenges the denial of her claim for disability benefits under the long-term

disability insurance policy insured by Reliance. The parties have cross-moved for summary

judgment [Dkts. # 21 and # 27]. Because Reliance has failed to explain the grounds for its

decision denying plaintiff benefits, the Court will remand to Reliance for reconsideration of that

decision. Accordingly, plaintiff’s motion for summary judgment [Dkt. # 21] is granted in part

and denied in part and defendants’ cross-motion for summary judgment [Dkt. # 27] is denied.

   I.      BACKGROUND

        A. Mitre’s Long-Term Disability Insurance Policy

        Plaintiff worked as a multi-discipline systems engineer at Mitre, a non-profit organization

that supports federally funded research and development centers with systems engineering and
information technology assistance. Pl.’s Mem. at 2; Administrative Record (“A.R.”) at 14. 1 On

January 1, 2005, Reliance issued “Group Long-Term Disability Insurance Policy No.

LTD111701” (“the Policy” or “the Plan”) to Mitre. A.R. at 14. Defendant Reliance acted as the

claims review fiduciary and determined eligibility for benefits for the Policy. A.R. at 14.

       In order to be eligible for disability benefits, the Policy required an insured: (1) to be

“Totally Disabled as the result of a Sickness or Injury covered by this Policy;” (2) to be “under

the regular care of a Physician;” (3) to “ha[ve] completed the Elimination Period;” and (4) to

“submit[] satisfactory proof of Total Disability.” A.R. at 18. In a provision that can hardly be

described as a model of clarity, the Policy defined “Totally Disabled” and “Total Disability” as:

               [A]s a result of an Injury or Sickness:

               (1)    [D]uring the Elimination Period and for the first 24 months for
               which a Monthly Benefit is payable, an Insured cannot perform the
               material duties of his/her regular occupation;

               a.      “Partially Disabled” and “Partial Disability” mean that as a result
               of an Injury or Sickness an Insured is capable of performing the material
               duties of his/her regular occupation on a part-time basis or some of the
               material duties on a full-time basis. An Insured who is Partially Disabled
               will be considered Totally Disabled, except during the Elimination Period;

               b.     “Residual Disability” means being Partially Disabled during the
               Elimination Period.   Residual Disability will be considered Total
               Disability; and

               (2)     [A]fter a Monthly Benefit has been paid for 24 months, an Insured
               cannot perform the material duties of any occupation. Any occupation is
               one that the Insured’s education, training or experience will reasonably
               allow. We consider the Insured Totally Disabled if due to an Injury or
               Sickness he or she is capable of only performing the material duties on a
               part-time basis or part of the material duties on a Full-time basis.

A.R. at 10.


1      See also Mitre – Applying Systems Engineering and Advanced Technology to Critical
National Problems, http://www.mitre.org/ (last visited Sept. 21, 2012).


                                                 2
       The definition of “Total Disability” refers to the “Elimination Period,” which is in turn

defined by reference to the disability. The term “Elimination Period” is defined as a “period of

consecutive days of Total Disability . . . for which no benefit is payable. It begins on the first

day of Total Disability.” A.R. at 9. The Policy also states that the Elimination Period is “[t]he

greater of expiration: 180 consecutive days of Total Disability or the end of The MITRE

Corporation’s continuation program.” A.R. at 7.

       Further, the Policy uses the term “Interruption Period,” which is defined as:

               If, during the Elimination Period, an Insured returns to Active Work for
               less than 160 hours, then the same or related Total Disability will be
               treated as continuous. Days that the Insured is Actively at Work during
               this interruption period will not count towards the Elimination Period.

A.R. at 9. Finally, the term “Actively at Work” is defined as:

               [A]ctually performing on a Full-time or Part-time basis the material duties
               pertaining to his/her job in the place where and the manner in which the
               job is normally performed. This includes approved time off such as
               vacation, jury duty and funeral leave, but does not include time off as a
               result of an Injury or Sickness.

Id.

       B. Plaintiff’s claim for disability benefits

       Plaintiff was initially diagnosed with serious medical issues including kidney cancer and

portal vein thrombosis in November 2005, and the Administrative Record chronicles in great

detail the many doctors’ appointments, diagnoses, and medical exams she underwent from 2005

to 2007. See, e.g., A.R. 796–98 (recording plaintiff’s diagnosis of enlargement of the spleen and

portal vein thrombosis by Dr. Sutherland); A.R. at 863–67 (results of Magnetic Resonance

Imaging (“MRI”) exam showing worsening of her condition); A.R. at 395–97; 712–15; 791–92;

826–27; 853–55 (diagnosis and treatment of renal cell carcinoma).              According to the

Administrative Record, August 19, 2007, was the last day plaintiff worked before her disability.

                                                3
A.R. at 657. Plaintiff indicates that she returned to work briefly in November 2007, although she

does not specify a precise date. Id. Reliance estimated that she began part-time work on

November 12, 2007. A.R. at 742.

       On December 18, 2007, Mitre provided Reliance notice of plaintiff’s claim of disability.

A.R. at 1482. During the period from mid-November 2007 to mid-February 2008, plaintiff

worked a reduced number of hours, which varied based on the particular week. A.R. at 742. On

February 15, 2008, plaintiff stopped working altogether. A.R. at 742. On March 25, 2008,

plaintiff submitted a written application for disability benefits under the Policy. A.R. at 657–66.

       C. Reliance’s Denial of the Plaintiff’s Claim for Disability Benefits

       After considering materials submitted by plaintiff as well as reviews provided by

physicians consulted by Reliance, Reliance initially denied plaintiff’s claim on June 11, 2008.

A.R. at 741–44. The denial was based on the grounds that “the medical records in the file do not

support work impairment at date of loss or beyond 11/6/07 when you were released to work

status post nephrectomy.” A.R. at 743.




                                                 4
       Plaintiff appealed the decision on December 29, 2008. A.R. at 996–1028. Reliance

denied the appeal on September 29, 2009. A.R. at 111–20. The denial letter sent to plaintiff

provided in relevant part:

               At the time that [plaintiff] returned to “Active Work” in 11/07, she was
               still within the “Elimination Period” as it is defined by the Policy for her
               8/20.07 dates of loss. Hence, as [plaintiff] was working part-time, the
               Claims Department was required to add the number of hours that
               [plaintiff] worked during the “Interruption Period” to the end of her
               “Elimination Period.”

               Documentation from the Policyholder confirms [plaintiff] was “Actively
               at Work” during the following time frame:

                              Week of                               Total Hours Worked

                       11/12/07 to 11/18/07                                24 hrs
                       11/19/07 to 11/25/07                                17 hrs
                       11/26/07 to 12/02/07                                26 hrs
                       12/03/07 to 12/09/07                                22 hrs
                       12/10/07 to 12/16/07                                29 hrs
                       12/17/07 to 12/23/07                                28 hrs
                       12/24/07 to 12/30/07                                no work
                       12/31/07 to 01/06/08                                2 hours
                       01/07/08 to 01/13/08                                28 hours
                       01/14/08 to 01/20/08                                no work
                       01/21/08 to 01/27/08                                32 hours
                       01/28/08 to 02/03/08                                24 hours
                       02/04/08 to 02/10/08                                5 hours
                       02/11/08 to 02/17/08                                4 hours
                       02/18/08                                            no work

A.R. at 114 (emphasis removed). Therefore, according to Reliance:

               In [plaintiff]’s situation, given her original work stoppage on 8/20/07, and
               the “Interruption Period” as explained above, [plaintiff] worked in excess
               of the specified “160 hours” as of 12/14/07. Therefore, the “Elimination
               Period” needed to be re-started as of 12/15/07.

Id. (emphasis removed).




                                                5
The letter continued:

               However, as of 2/18/08, when [plaintiff] ceased working entirely,
               information in the claim file reflects that [plaintiff] was still receiving
               salary continuation from the Mitre Corporation. Hence, according to the
               provisions set forth in the group Policy, [plaintiff]’s “Elimination Period”
               would be satisfied after the greater of 180 days of “Total Disability”
               beginning 2/18/08, or the last date that she received salary continuation
               from her employer. It is our position, based on the totality of information
               in the claim file, that [plaintiff] was capable of performing the material
               duties of her own occupation 2 at the time that she was released to return
               to work on 11/6/07 following her nephrectomy.

Id. (emphasis added).

       Reliance then discusses the sufficiency of the medical evidence submitted in support of

plaintiff’s claims. The letter pointed to the following:

       1. Progress Notes from Dr. Felice

       The denial letter noted several progress notes from Anthony Felice, M.D., an oncologist

who treated plaintiff. The first note, dated December 31, 2007, states that plaintiff “was doing

reasonably well with the exception of experiencing mild fatigue and anemia.” A.R. at 114, citing

A.R. at 735. The denial letter from Reliance remarks that this note was written after plaintiff

returned to work part-time but before she stopped working altogether, and that it does not include

any recommendation that she stop working. A.R. at 114–14.




2        Reliance assessed the material duties of plaintiff’s occupation by using the Dictionary of
Occupation Titles (“DOT”) published by the U.S. Department of Labor. A.R. at 112. In
plaintiff’s case, her position as a multi-discipline systems engineer was closest to a combination
of two DOTs. The first was DOT 019.167-014, Project Engineer, which is classified as “light
physical exertion.” Id. The second was DOR 033.167-010, Computer Systems Engineer, which
is classified as “sedentary exertion.” Id.
         According to the DOT, a sedentary occupation is one which “requires exerting up to 10
pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push,
pull, or otherwise move objects, including the human body.” Id. n.2. Sedentary work includes
“sitting most of the time, but may involve walking or standing for brief periods of time.” Id.
                                                 6
       The letter then references another office note from Dr. Felice on February 29, 2008 – two

weeks after plaintiff had stopped working. Id. The letter states that plaintiff “was feeling better

but experiencing some fatigue.” Id., citing A.R. at 786. The letter also noted Dr. Felice’s

comment that plaintiff was being treated for a sinus infection and a yeast infection and that

“neither of which are conditions that preclude individuals from work function.” A.R. at 115.

The denial letter also observed:

               When [plaintiff] saw Dr. Felice in 12/07, he did not recommend a decrease
               in her part-time work, nor did he recommend that she cease working due
               to her complaints of fatigue. As [sic] [plaintiff] next saw this provider in
               2/08, two weeks after she had stopped working. Thus it is apparent that
               Dr. Felice did not propose that [plaintiff] discontinue her work due to her
               medical conditions.

Id.

       2. Attending Physician Statement completed by Dr. Abu-Elbmagd

       The denial letter also notes that in March 2008, Kareen Abu-Elmagd, M.D., completed an

Attending Physician Statement (“APS”) that was submitted in connection with plaintiff’s claim

for disability benefits. A.R. at 113, 115, citing A.R. at 665–66.        The APS indicated that

plaintiff’s primary diagnoses and symptoms consisted of “extreme fatigue, frequent illness.”

A.R. at 665. According to the denial letter, the APS also included a section entitled “Description

of Patient’s Restrictions and Limitations,” in which Dr. Abu-Elmagd indicated that plaintiff

could stand for 1–3 hours, sit for 3–5 hours, walk for 1–3 hours, and drive for 1–3 hours. A.R. at

666. He also noted that in an eight-hour day, plaintiff could lift/carry ten pounds maximum and

occasionally carry small objects, which is characterized by the form as “sedentary work.” Id.

The form also included a question which asked: “Has the patient achieved maximum medical

improvement?” Id. Dr. Abu-Elmagd checked the box “no.” Id. The APS then asked: “If yes,




                                                7
as of what date can patient return to work?” Since Dr. Abu-Elmagd checked the first box no, he

did not answer this question. Id.

       While the denial letter discusses the APS completed by Dr. Abu-Elmagd, it notes that the

document was signed in March 2008, which was one month after plaintiff stopped working.

A.R. at 115. Based on this, Reliance concluded:

               Indeed, according to the medical evidence, neither Dr. Abu-Elmagd nor
               Dr. Felice recommended that [plaintiff] stop working. Given these facts,
               we must conclude that [plaintiff]’s work stoppage as of 2/18/08 was a
               lifestyle choice on her part, rather than a “Total Disability” as defined by
               the group Policy.

Id. (emphasis removed).

       3. Travel to Pittsburgh for medical treatment

       The denial letter discusses plaintiff’s treatment at the University of Pittsburgh Medical

Center beginning in late March 2008. A.R. at 115. It observes that in order to be treated in

Pittsburgh, plaintiff was required to commute approximately 243 miles one-way from her home.

Id. According to the letter: “The fact that she is able to sit (regardless of whether or not she is

the driver or the passenger of the vehicle) for such extended periods of time further substantiates

our position that she is not “Totally Disabled.” Id.

       4. Medical Reports Obtained by Reliance from Dr. Dean and Dr. Shipko

       Because plaintiff’s symptoms included both “physical and psychiatric components,”

Reliance obtained opinions from two independent physicians – Herbert Dean, M.D., and Stuart

Shipko, M.D. – who reviewed plaintiff’s medical records. A.R. at 115. These doctors never

spoke to plaintiff and did not evaluate her medical condition in person. 3



3      According to the denial letter, Reliance gave plaintiff an opportunity to review the
opinions of Dr. Dean and Dr. Shipko and submit supplemental evidence and rebuttal arguments
before a final determination on the claim was made. A.R. at 117. Plaintiff’s counsel did respond
                                                 8
       Dr. Dean stated that he “agree[d] with the APS of 2008 [completed by Dr. Abu-Elmagd]

except for the category of lifting and sitting. During an 8 hour day with two breaks and lunch,

[plaintiff] should be able to sit for up to 6 hours, walk and stand for up to 3 hours, and drive up to

3 hours; she should be able to lift up to 20 lbs occasionally and 10 lbs frequently. Her records

indicate frequent traveling to [Pittsburgh], over 200 miles for medical follow ups, which usually

go along with an adequate performance level, and I would place her work capacity in an

approximate light category of work . . . from the medical records that I have reviewed.” A.R. at

116. Dr. Dean declined to assess plaintiff’s cognitive issues, instead suggesting that they be

evaluated by an “appropriate consultant.” Id. Reliance wrote in the denial letter that “Dr.

Dean’s opinion supports our determination that [plaintiff] was physically capable of light work

function at the time she was released to return to work on 11/6/07.” Id.

       Dr. Shipko, whom Reliance characterizes as a “mental health specialist,” observed that

the “records reflect longstanding but mild depression” and that plaintiff’s “emotional difficulties

are mild and do not rise to a level where they would be functionally impairing.” Id. He

concluded that “[n]o functional impairment on the basis of psychiatric illnesses is noted or

otherwise illustrated in the records that I have reviewed and no restrictions and limitations are

supported from a psychiatric perspective.” Id.

       5. Neuropsychology Report from Dr. Noel

       The denial letter further notes that it reviewed a report provided by plaintiff from Carolyn

Noel, PhD., a neuropsychologist, dated January 26, 2009, which concluded that plaintiff had



to the reports, but Reliance notes that the “majority of the materials ha[d] no relevance to Ms.
Marcin’s claim.” Id. The letter states that most of the information submitted advanced the same
systemic arguments that plaintiff had pressed in this litigation, that is, that the independent
physician reviews were biased because of the doctors’ affiliation with the University Disability
Consortium. Id.
                                                  9
“clinically significant” deficits in Executive Functioning and Mental Flexibility. A.R. at 117,

citing A.R. at 437.

         The denial letter stated that while “it is certainly possible that Dr. Noel’s findings are

accurate,” plaintiff saw Dr. Noel nine months after she stopped working, so the report did not

illuminate the question of whether plaintiff was totally disabled at the time she stopped work. Id.

Moreover, any impairment identified by Dr. Noel was not covered under the Policy because

plaintiff’s coverage terminated on 3/1/08. Id.

         6. Reliance’s conclusion that benefits should be denied

         At the conclusion of the letter, the insurer stated that plaintiff “was capable of performing

the material duties of [her] own occupation as of 11/6/07,” which is the approximate date that

plaintiff returned to part-time work. A.R. at 114, 119. Reliance stated that “[o]ur position is

further confirmed through the independent opinions of Drs. Dean and Shipko.” Id. The letter

ended:

                [W]e must conclude that [plaintiff] was not impaired through the
                “Elimination Period” and therefore does not meet the definition of
                “Totally Disabled” as defined by the group Policy. Thus, she is not
                eligible to receive [long-term disability] benefits in connection with this
                claim. Additionally, we have determined that [plaintiff]’s coverage under
                the Policy terminated as of 3/1/08. Therefore, any impairment diagnosed
                after that date is not covered for a “Total Disability” either.

Id. (emphasis removed).

         D. Procedural Background

         Plaintiff filed this lawsuit on October 26, 2010. [Dkt. # 1]. Plaintiff requested that the

Court review the denial of benefits and determine that plaintiff is entitled to disability benefits

under the Policy, as well as back benefits with interest, attorney’s fees, and costs. Compl. ¶¶ 21–

22. In the alternative, plaintiff requested that the case be remanded to reconsider the decision to



                                                  10
deny plaintiff’s claim. Id. ¶ 24. Plaintiff filed a motion to compel discovery on September 14,

2011, which the Court granted in part and denied in part on November 3, 2011. [Dkt. # 15]. On

January 26, 2012, plaintiff moved for summary judgment. [Dkt. # 21]. Defendants cross-moved

for summary judgment on February 22, 2012. [Dkt. # 27].

   II.      STANDARD OF REVIEW

            A. Cross-motions for summary judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of

some factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could

find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome

of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most

favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d

57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.




                                                11
       “The rule governing cross-motions for summary judgment . . . is that neither party waives

the right to a full trial on the merits by filing its own motion; each side concedes that no material

facts are at issue only for the purposes of its own motion.” Sherwood v. Wash. Post, 871 F.2d

1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir.

1982) (internal quotation marks omitted).

           B. Review of benefits determinations under ERISA

       ERISA provides that a participant in or beneficiary of a covered plan may sue “to recover

benefits due to him under the terms of [the] plan, to enforce his rights under the terms of the

plan, or to clarify [the] rights to future benefits under the terms of the plan.” 29 U.S.C.

§ 1132(a)(1)(B). The Supreme Court has held that courts should apply a de novo standard –

instead of the more deferential arbitrary and capricious standard – to a benefits determination

under ERISA “unless the plan provides to the contrary.” Metro. Life Ins. Co., v. Glenn, 554 U.S.

105, 111 (2008), citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). A plan

provides to the contrary when it grants its “administrator or fiduciary discretionary authority to

determine eligibility for benefits.” Id., quoting Firestone, 489 U.S. at 115 (internal quotation

marks omitted). Under those circumstances, “[t]rust principles make a deferential standard of

review appropriate.” Firestone, 489 U.S. at 111; cf. Fitts v. Fed. Nat’l Mortgage Ass’n, 236 F.3d

1, 5 (D.C. Cir. 2001) (deciding when Firestone’s exception applies).

       When evaluating whether an abuse of discretion has occurred, the D.C. Circuit has

explained that the “essential inquiry” is: did the administrator “reasonably construe and apply”

the plan? Block v. Pitney Bowes Inc., 952 F.2d 1450, 1454 (D.C. Cir. 1992). The Court’s review

of a benefits determination “may only be based on the record available to the administrator or

fiduciary at the time the decision was made.” Crummett v. Metro. Life Ins. Co., No. 06-01450,



                                                 12
2007 WL 2071704, at *3 (D.D.C. July 16, 2007). This means a court cannot overturn a decision

so long as it is reasonable, “even if an alternative decision also could have been considered

reasonable.” Block, 952 F.2d at 1452 (internal quotation marks omitted); Mobley v. Cont’l Cas.

Co., 405 F. Supp. 2d 42, 48 (D.D.C. 2005) (“[A] deferential standard of review allows the plan

administrator to reach a conclusion that may technically be incorrect so long as it is reasonably

supported by the administrative record.”). The administrator’s decision should therefore not be

overturned if it is the result of a “deliberate, principled, reasonable process and if it is supported

by substantial evidence, meaning it must be “more than a scintilla but less than preponderance.”

Buford v. UNUM Life Ins. Co. of Am., 290 F. Supp. 2d 92, 100 (D.D.C. 2003) (internal quotation

marks and citation omitted).

          The policy at issue in this case provides:

                 Reliance Standard Life Insurance Company shall serve as the claims review
                 fiduciary with respect to the insurance policy and the Plan. The claims review
                 fiduciary has the discretionary authority to interpret the Plan and the insurance
                 policy and to determine eligibility for benefits. Decision by the claims review
                 fiduciary shall be complete, final and binding on all parties.

A.R. at 14. As the Court has noted in previous proceedings, the parties agree that a discretionary

standard of review applies in this case. Pl.’s Mem. of P. and A. in Supp. of Pl.’s Mot. for Summ.

J. (“Pl.’s Mem.”) [Dkt. # 21] at 16–18; Defs.’ Mem. of P. and A. in Supp. of Cross-Mot. for

Summ. J. and Opp. to Pl.’s Mot. for Summ. J. (“Defs.’ Mem.”) [Dkt. # 25] at 18. Accordingly,

the Court will review the benefits determination under an abuse of discretion standard.

   III.      ANALYSIS

          A. The Court’s analysis of the record

          In order to resolve the question posed by this case, the Court found it necessary to

undertake the detailed analysis of the record and chronology of events that was absent from the



                                                   13
briefs. At oral argument, counsel for plaintiff emphasized the very serious and chronic nature of

plaintiff’s condition. He maintained that she suffered from the same illnesses in 2008, as she did

when later reports submitted to the insurer by the plaintiff were written, so he urged the Court to

consider it all. But the record reflects that notwithstanding her illnesses, the fact that she

underwent surgery, and the fact that the doctors implanted a shunt, plaintiff was cleared by her

own doctors to return to work in November 2007. Therefore, while plaintiff’s arguments about

the panoply of medical conditions from which she suffers and the ever-present risk of life-

threatening blood clots evoke considerable sympathy, they do not answer the only question

before the Court: was she unable to work when she stopped? Since plaintiff’s coverage expired

on March 1, 2008, A.R. at 117, the record must establish that she became disabled before that

time. Her medical condition is not in dispute – only whether that condition rendered her totally

disabled.

       The following events transpired on the dates noted: 4

       11/07: According to Reliance, plaintiff’s doctors “cleared” her to return to work in
       November of 2007, Defs.’ Mem. at 23, and in fact, she did return to work.

       11/12–11/18/07: Plaintiff worked twenty-four hours.

       11/19–11/25/07: Plaintiff worked seventeen hours.

       11/26–12/02/07: Plaintiff worked twenty-six hours.

       12/03–12/09/07: Plaintiff worked twenty-two hours.

       12/10–12/16/07: Plaintiff worked twenty-nine hours.

       12/17–12/23/07: Plaintiff worked twenty-eight hours.

       12/24–12/30/07: Plaintiff did not work, but this week included the Christmas holiday.

4      This account leaves out such items as reports of computer tomography (“CT”) scans
looking into spots on plaintiff’s lung and other medical assessments that did not generate
findings of relevance to this analysis.
                                                14
A.R. at 114.

       12/31/07: Progress note from Dr. Felice: In the “S” section, which sets out the patient’s
       subjective report, it says: “She is reasonably well although has some mild fatigue.” A.R.
       at 735. And, the physical examination includes the general assessment: “The patient
       appears well.” At that point, the plan was to continue the plaintiff on iron for her anemia
       and monitor closely. Id.

As of this point, plaintiff is working, and she is not complaining of anything more than mild

fatigue.

       12/31/07–1/06/08: Plaintiff worked two hours. It is unclear whether or not this is
       significant given the New Year’s holiday.

       1/07–1/13/08: Plaintiff worked twenty-eight hours. This suggests that it was the
       holidays and not illness that reduced plaintiff’s hours for the two previous weeks,
       but the record provides no further information.

       1/14–1/ 20/08: Plaintiff did not work; Reliance records state she was “sick.”
       A.R. at 742.

       1/21–1/27/08: Plaintiff worked thirty-two hours.

       1/28–2/3/08: Plaintiff worked twenty-four hours.

A.R. at 114. At this point, despite her considerable medical history, plaintiff is still working, and

there is no evidence of complaints made to, or diagnoses by, any physician. So, any disability

had to develop after February 3. On the other hand, the record of part time work after the

surgery could support an inference that plaintiff gave working full-time her best shot but

ultimately realized that she could not sustain the necessary level of energy to succeed.

       2/04–2/10/08: Plaintiff worked only five hours.

       2/11–2/17/08: Plaintiff worked only four hours.

       2/18/08: Plaintiff stopped work.

A.R. at 114.


                                                 15
          But what information is available beyond the work stoppage that indicates that plaintiff

was totally disabled at that point? The next time she goes to a doctor is ten days later, and even

her own report to the doctor at that time is relatively understated in his assessment:

          2/29/08: Progress note from Dr. Felice: “S: She is feeling better but still has
          much fatigue. This limits her ability to work.” Dr. Felice’s “plan” includes
          referral to an ENT for the recurring sinus infections, a follow-up CT scan for her
          abdominal pain, and checking thyroid function. A.R. at 786.

This note evidences a statement made by the patient to the doctor, and it is not a medical

determination that she is disabled. There is nothing in the progress note that elaborates further

on plaintiff’s ability to work from the physician’s perspective. And, as the Reliance appeal

decision points out, plaintiff had already stopped work by the time she had this appointment, so it

cannot be said that she stopped work based upon her doctor’s instructions or recommendation.

          3/20/08: Progress note from Dr. Abu-Elmagd: Plaintiff complains of (“c/o”)
          “energy level very low,” “sinus infection for 2 mo.,” and “low grade fever.” “Not
          working presently.” (Note: there is no complaint of syncope episodes at that
          point.) The doctor’s notes on examination are less legible, but they also seem to
          reflect complaints of fatigue, lethargy, failure to thrive, and low grade fever. The
          doctor ordered various tests. A.R. at 354–55.

Like the previous doctor’s note, this piece of evidence – even if it does reflect that plaintiff was

not well – does not provide much assistance in determining whether she had become disabled

and if so, when her disability occurred; she was already not working when she went to see the

doctor.     And, as Reliance points out, while plaintiff may not have driven herself to the

appointment, she appears to have tolerated being seated for the three hours or so it took to make

the trip.

          3/20/08: Dr. Abu-Elmagd provided plaintiff with a note on a prescription pad that
          states: “Jill is currently in Pittsburgh for additional testing. She will need to
          remain off of work until further notice, pending test results.” The note provides
          the doctor’s phone number to call with any questions. A.R. at 870.




                                                  16
This exhibit cannot be characterized as an express medical determination that plaintiff is disabled

and unable to work, and it does not set forth the reasons for reaching such a conclusion. It is

simply a note from a doctor excusing a temporary absence. But the note could be interpreted as

an indication that the doctor understood that he was supporting a work stoppage of indefinite

duration, and indeed, immediately after that, plaintiff submitted her claim for benefits. Still, the

record does not include a discussion of the plaintiff’s condition or the nature and extent of the

disability.

        3/25/08: Plaintiff submitted her disability claim. She listed the following
        symptoms: “extreme fatigue, abdominal pain, easily caught colds.” She
        answered the question, “[w]hy are you unable to work?” as follows:
        “Unpredictable energy levels; good energy level can become instantaneously very
        low ____[illegible]. Fluctuating energy levels result in multiple days per week
        [without steady ___] unable to do anything; constantly catching illnesses due to
        weak immune system; body has not recovered fully since ___ surgery.” A.R. at
        657.

This is all subjective, but there is nothing in the record from the employer or anyone else that

contradicts plaintiff’s assessment of her abilities at that time, and there is no evidence of

malingering or lack of good faith on her part.

        3/25/08: Dr. Abu-Elmagd completed the Reliance form in connection with
        plaintiff’s claim for disability benefits. He listed her primary diagnoses, and
        under “Symptoms,” he wrote: “extreme fatigue, frequent illness.” Section E is
        entitled “Description of Patient’s Restrictions and Limitations,” and it asks, “over
        the course of an 8 hour day, with 2 breaks and lunch, the patient can
        alternately . . . ” stand, sit, walk, and drive for what period of time? The doctor
        checked off: stand for 1–3 hours, sit for 3–5 hours, walk for 1–3 hours, and drive
        for 1–3 hours. He also checked the box that indicated that in an eight-hour day,
        the patient can lift/carry 10 lbs. maximum and occasionally carry small objects,
        which is characterized by the form – not the doctor – as “sedentary work.”
        Section F bears the instruction: “Physician completes if limitations are
        mental/nervous nature,” and Dr. Abu-Elmagd did not fill it out. A.R. at 665.

Reliance interprets this assessment as evidence that plaintiff was not totally disabled, but the fact

that the doctor completed the form in connection with plaintiff’s disability claim is a fact to be


                                                 17
taken into consideration in figuring out what the form means. As far as one can discern from the

record, the physician thinks he is providing support for a disability claim. Given the fact that

Section E is entitled “restrictions and limitations,” it seems that he is identifying these things as

the upper boundaries of her abilities, denoting the limits on what she can do. So at most, this

document provides support for the idea that plaintiff could possibly perform some part-time

work. The fact that Dr. Abu-Elmagd did not complete Section F can be interpreted as a

conclusion by him that the limitations are physical and not mental.

        Section H, “Prognosis for Recovery,” asks: “Has the patient achieved maximum
        medical improvement?” and the doctor can check either yes or no. Dr. Abu-
        Elmagd checked “no.” The form asks, “If yes, as of what date can patient return
        to work?” Since Dr. Abu-Elmagd checked no, and not yes, he did not answer that
        question. A.R. at 665.

This suggests that notwithstanding the doctor’s opinion that plaintiff could sit – at most – for

three to five hours in an eight-hour period, it was his understanding that she was not currently

working (which is consistent with his note of March 20), and he did not contemplate a return to

work at that point. That interpretation is reinforced by his answer to the next question:

        The form then asks: “If no, when do you expect patient will achieve maximum
        medical improvement?” The doctor’s answer: “less than 16 months.” “When the
        above change occurs, what functional capacity will the patient receive?” “Full
        recovery” is checked with the handwritten note “unknown,” and “improved over
        current but not full” is also checked. A.R. at 665.

So, at that point, plaintiff’s doctor was anticipating that it would take some time before she

recovered, and he was not able to predict whether it would be a full recovery or merely improved

but not full.

        Essentially, the form is somewhat ambiguous, and it has material in it to support both

parties’ positions. Defendants point to the document as a strong statement of what plaintiff is

capable of, and they argue that plaintiff’s own physician cleared her for sedentary work. But



                                                 18
Section E does not ask, what can she do? It asks, how is she limited? This document does not

seem to provide the “substantial” support the insurer needs to support a finding that plaintiff is

not disabled. But on the other hand, there is not much in the record that supports plaintiff’s

claim to the insurer that she was totally disabled at that time either. Fortunately, both parties

agree that the Court can also consider any other materials that were added to the record up

through the time of the appeal.

       4/14/08: Progress note from Dr. Felice: Subjective section recites: “Her main
       problem is one of persistent fatigue that has prevented her from working. She
       also gets low grade temperatures.” The decision was made to try the drug
       Neupogen to “see if that makes her feel better.” A.R. at 783–84.

This is still not an express determination by Dr. Felice that plaintiff cannot work, but the

document does supply yet another consistent, contemporaneous report that plaintiff is not

working because of the fatigue.

       5/22/08: Progress note from Dr. Abu-Elmagd: Plaintiff first reports having the
       experience when her body goes limp, she can’t make a sound, and ten minutes
       later, when she comes out of it, she is very hungry. A.R. at 365.

In the Court’s view, these syncopic episodes, which developed after plaintiff stopped working

and after the policy expired, cannot supply the grounds for a disability finding; they appear to be

a manifestation of how her condition subsequently worsened.

       5/29/08: Note in the claims file: “Per my conversation with the insured she
       advised me that Dr. Abu Elmald [sic] and her discussed her quality of life and it
       was decided she could not work.” A.R. at 636. (Apparently, per the original
       claims denial, A.R. at 741–44, plaintiff made this statement to Helen M. Brenner
       in the Claims Department. A.R. at 743.)

       6/11/08: Reliance denied plaintiff’s claim for benefits on the grounds that “the
       medical records on file do not support work impairment at date of loss or beyond
       11/6/07 when you were released to work status post nephrectomy.” A.R. at 743.

       7/28/08: Progress note from Dr. Felice: Plaintiff reports episodes of syncope
       while sitting or standing and even driving. He reported: “She still complains of
       lack of energy.” Neurology work up was negative, so Dr. Felice referred plaintiff

                                                19
        to a cardiologist even though he doubted that was the cause. Assessment includes
        “fatigue” and “syncope of unclear etiology.” There were also issues about
        whether the shunt was still open. A.R. at 780–81.

        10/09/08: Plaintiff was hospitalized for epilepsy monitoring; the diagnosis was
        that the spells were real but of psychological origin. “[D]uring her stay, the
        patient underwent neuropsychological testing which demonstrated no cognitive
        deficits but did exhibit some signs of stress-related depression, and it was felt that
        counseling and cognitive behavioral therapy would be of benefit.” A.R. at 755–
        56.

This exhibit contradicts counsel’s claim at oral argument that plaintiff’s disability has been

cognitive in nature.

        10/24/08: Functional Capabilities Test: This report, submitted to the Court by
        plaintiff, concludes that plaintiff is unable to return to work in her previous
        position or any other position. Workplace tolerance is below part-time workplace
        tolerance levels. Much of what the report contains is plaintiff’s assessment of her
        own condition, but there was also testing done, and the report states: “The
        findings indicate that [plaintiff] tested into the full range of the sedentary
        (unsustainable) physical demand category and partially into the light
        (unsustainable) physical demand category . . . . This is not considered a
        sustainable capability over an 8 hour workday as she cannot sustain this level of
        effort for more tha[n] a short period of time. The findings indicate she is below
        the 4 hour workplace tolerance level. Although she completed all functional
        activities, she was unable to sustain any level of effort for more than a short
        period of time.” A.R. at 871–75.

But does this report shed light on plaintiff’s condition eight months earlier, in February 2008? It

is difficult to determine, but there does not appear to have been any worsening of plaintiff’s

condition since that time with the exception of the “spells,” which are not relied upon as the basis

for the conclusions about her functional abilities. The level of fatigue seems consistent with

what plaintiff was reporting to her physicians at that time, so the Court does not believe that this

exhibit can be disregarded simply because it was prepared several months after plaintiff stopped

work.

        1/26/09: Neuropsychology testing by Dr. Noel: Overall impressions include:
        “Her general level of energy appeared sufficient, although it appeared to decrease
        as the day went on. She benefited from brief breaks. The current assessment

                                                 20
       appears to be a valid estimate of [plaintiff]’s level of functioning.” Intellectual
       functioning: “In summary, [plaintiff] exhibited entirely intact verbal and
       nonverbal intellectual abilities . . . . . ” Academic Achievement test results were
       consistent with her intellectual abilities. Language Abilities: “These findings
       appear consistent with a mild executive dysfunction, as opposed to a deficit in
       fluency per se.” Verbal/Auditory Learning and Memory: “Performance on these
       measures was intact.” Superior range for most of it. Nonverbal/Visual Learning
       and Memory: intact. Motor Skills and Visual-Spatial Processing: “reduced
       performance on measures of fine motor control and dexterity, with intact
       performance on measures of motor speed and visual spatial functioning abilities.”
       Executive Functioning/Mental Flexibility: This was an area where deficits were
       identified, but there is no indication that the observable deficits in executive
       functioning were considered to be disabling, even if they were “clinically
       significant.” The report indicates: “Overall, data on these measures reveal
       evidence of executive dysfunction in the areas of auditory and visual sustained
       attention, response inhibition, speed of processing for complex information, and
       organizational and self-monitoring abilities. Throughout testing, [plaintiff]
       required repetition of instructions on multi-step tasks, reflecting limitations in her
       auditory working memory/attention span . . . . Performance appeared improved on
       tasks that offered more structure, which again suggests a deficit in executive
       skills. The reported deficits are clinically significant, particularly in light of
       [plaintiff’s] High Average to Superior intellectual functioning.” Finally, in
       Psychological Functioning, the report notes “evidence of significant health
       concerns/anxiety . . . , mild depression, and cognitive difficulties.” A.R. at 431–
       38.

This test was performed to assess plaintiff’s cognitive functioning. The fact that the report is

dated almost a year after the work stoppage and that it assesses issues that were not claimed as

grounds for the disability claim support Reliance’s position that it should be given little or no

weight. But, the report does very little to establish total disability in any event.

       First of all, in the introduction, Dr. Noel characterizes the executive functioning deficits

she did find as “mild.” More important, once the expert took all of the strengths and weaknesses

into account, she made a series of recommendations that do not include any suggestion that

plaintiff is unable to work. See A.R. at 440. To the contrary, the bulk of the recommendations,

such as use of a day planner, breaking tasks down, and taking frequent breaks, id., seem to

assume that she would be working. In addition, the test report speaks to plaintiff’s ability to sit



                                                  21
and complete a lengthy set of tests in the course of only one day, although it does not specify

exactly how long she was there.       Finally, while Dr. Noel concluded that given plaintiff’s

intellectual abilities, the deficits were likely acquired and not developmental, in the absence of

any baseline testing information, there is no way of knowing on this record where plaintiff fell

on the spectrum of executive functioning before.

       What is set forth above, then, is the total state of the record if one ignores the challenged

medical reviewers’ reports and plaintiff’s supplemental submissions. There is nothing that

points directly to a finding that plaintiff was not totally disabled other than the form her doctor

completed in March 2008, and that is less compelling on that point than defendants would have

the Court believe. But there is also little in the way of medical evidence that plaintiff was

disabled: basically, the record consists of plaintiff’s own statements, the Functional Capacities

Analysis that was completed eight months after she stopped working (which does not necessarily

rule out part-time, sedentary work, although it rejects it as “unsustainable”), and Dr. Abu-

Elmagd’s March 2008 assessment, which also doesn’t rule out part-time, sedentary work. So,

whether the insurer’s determination was reasonable on this record depends in large measure on

what that determination was and the stated reasons behind it.

       4/23/09: Reliance wrote to plaintiff’s counsel stating that reviews of the medical
       evidence by an independent physician are needed. A.R. at 382.

This is the date of the extension the insurer took that plaintiff claims was unreasonable

and contrary to law. 5



5       Plaintiffs contend that this second extension of the time was contrary to the statutory
timeframe under ERISA regulation, 29 C.F.R. § 2560.503-1(i)(3). Pl.’s Reply to Defs.’ Opp. to
Pl.’s Mot. for Summ. J. and Opp. to Defs.’ Cross-Mot. for Summ. J. [Dkt. # 28] at 1–2, 6.
Plaintiff therefore requests that all findings made by Reliance after 3/28/09, which includes the
reviews by Dr. Shipko and Dr. Dean, be stricken from the record, or, in the alternative, the Court
allow plaintiff’s responses to be made part of a complete record. Id. at 2.
                                                22
       The remaining materials in the record are the expert reports.

       5/12/09: Dr. Dean’s report (which does not purport to be anything more than a
       “record review”): 6 Dean reviewed all of the information above and concluded:
       “During an 8 hour day with two breaks and lunch, she is [sic] should be able to sit
       for up to 6 hours, walk and stand for up to 3 hours, and drive up to 3 hours; she
       should be able to lift up to 20 [l]bs occasionally and 10 lbs frequently. Her records
       indicate frequent traveling to UPMC, over 200 miles for medical follow ups,
       which usually go along with an adequate performance level, and I would place her
       work capacity in an approximate light category of work . . . from the medical
       records that I have reviewed.” A.R. at 306, 310.

This is hardly the nefarious document that plaintiff’s counsel makes it out to be – the reviewer

reaches almost the exact same conclusions as the treating physician did in March 2008, with the

exception that he estimates that plaintiff could sit for up to 6 hours, when Dr. Abu-Elmagd

estimated 3–5 hours, and for the lifting, the reviewer moves her up from being able to lift ten


        Plaintiff cites a case from Illinois, where the district court found that Reliance had
violated ERISA because it was obligated to render a decision within the given time limit set forth
in the statute. Harper v. Reliance Standard Life Ins. Co., No. 07 C 3508, 2008 WL 2003175, at
*7–9 (N.D. Ill. May 8, 2008). The court observed that “it would be manifestly unfair to
claimants if plan administrators could extend the process indefinitely by continually requesting
additional information.” Id. (internal citations and quotation marks omitted). Reliance responds
that the appeal decision was delayed because of plaintiff’s own delay in “providing an updated
medical release and refusal to assist Reliance Standard in identifying and obtaining records from
her own health care providers” and her delay in responding to Dr. Shipko and Dr. Dean’s reports.
Defs.’ Reply at 6–7. And the record supports the notion that some portion of the delay was
attributable to plaintiff.
        ERISA regulations provide that a decision on an appeal must be granted within forty-five
days after the appeal is filed, unless an extension is necessary under “special circumstances,” in
which case an additional forty-five days is allowed. 29 C.F.R § 2560.503-1(i)(1), (i)(3)(i). The
regulation also recognizes that the time period can be tolled due to a claimant’s failure to submit
information necessary to decide a claim.” Id. § 2560.503-1(i)(3)(4). Plaintiff may be correct
that as a matter of law, Reliance did not make a timely decision under the ERISA regulations.
However, the Court does not reach this issue because even if the Court considers the medical
reports provided after the second deadline extension, and it considers everything plaintiff has put
forward, it would reach the same result.
6      Plaintiff makes a great deal out of the fact that the insurer failed to call for an
independent medical examination. But, as Reliance submits, there was no real dispute about her
diagnosis and the surgeries she had endured. And plaintiff’s own medical records were rather
weak in terms of establishing the existence of a disability.


                                                23
pounds occasionally to being able to lift twenty pounds occasionally and ten pounds frequently. 7

It is unclear what the reviewer’s basis is for elevating plaintiff from “sedentary” to “light” work

since he did not perform any actual testing, but the Functional Capabilities test that plaintiff

would have the insurer rely upon instead also found her partially in the “light” category.

       5/12/09: Dr. Shipko’s record review: “No functional impairment on the basis of
       psychiatric illnesses is noted or otherwise illustrated in the records that I have
       reviewed and no restrictions and limitations are supported from a psychiatric
       perspective.” A.R. at 315, 319.

This report also adds very little to the equation. It accurately summarizes what Dr. Noel did and

did not find, and it does not hazard a guess as to what the neuropsychological evaluation means

about plaintiff’s functionality.    The conclusion about psychiatric impairment is entirely

reasonable in light of the record as a whole; as Dr. Shipko points out, there is nothing in any




7       Plaintiff has contended throughout this litigation that the Court should not consider Dr.
Shipko’s and Dr. Dean’s reports because they did not conduct independent medical examinations
of plaintiff and are biased because they received payment from Reliance for these and other
reviews. Pl.’s Mem. at 20–22 (arguing that “[b]uttress[ing] one paid non-examining reviewer
with another similarly hired to provide uninformed, biased opinions fails to substantiate any
basis for denying [plaintiff’s] claim”) As Reliance points out, insurance companies are entitled
to rely on written reports of consultants “who have done paper reviews of a claimant’s medical
records to rebut the opinion of the treating physician asserting [that] claimant is disabled.”
Defs.’ Mem. at 24 (internal quotation marks omitted), citing Hufford v. Harris Corp., 322 F.
Supp. 2d 1345, 1349 (M.D. Fla. 2004); Weidner v. Fed. Express Corp., 492 F.3d 925, 930 (8th
Cir. 2007); Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1279–80 (11th Cir. 2005). And, several
courts have observed that ERISA does not require a plan administrator to obtain an independent
medical examination. See, e.g., Broyles v. A.U.L. Corp. Long-Term Disability Ins. Plan, No. C-
07-5305 MMC, 2009 WL 3817935, at *6 (N.D. Cal. Nov. 12, 2009), citing Jordan v. Northrop
Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 879–80 (9th Cir. 2004), overruled on other
grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006).
        Even if this were not the case, plaintiff’s allegations are not supported by the evidence in
the record. There is nothing remarkable about either doctor’s opinion – both accurately describe
the state of the record and draw conclusions that are based on that record. So, there is little need
to discount them based on allegations of bias, and indeed, they do not factor heavily in the
Court’s opinion, which would be the same even if they were excluded entirely.


                                                24
record that indicates that plaintiff’s depression is anything other than mild or that it isn’t being

well managed medically.

        The only other materials proffered to the Court are materials that were not a part of the

Administrative Record before the insurer at the time of the appeal. Plaintiff has submitted a

medical and functional capacity assessment prepared by Janice Ragland, M.D., on May 10, 2010,

more than two years after plaintiff stopped working. Claims Record Supp. (“C.R.S.”) [Dkt. # 21-

2] at 249–56. But there is no legal basis for the Court to consider anything that was not before

the insurer in connection with the appeal. See Crummett, 2007 WL 2071704, at *3, citing Block,

952 F.2d at 1455 (finding that a review “may only be based on the record available to the

administrator or fiduciary at the time the decision was made”). And this really does seem to be

getting too remote in time. 8 It is also unclear what this report is based on since there are no

records indicating that Dr. Ragland saw the plaintiff at any time between February 2008 and the

preparation of the report. 9




8       Plaintiff submits that since the medical conditions remained essentially unchanged, the
Court can consider the October 2008 Functional Assessment, the January 2009 psychological
assessment by Dr. Noel, and even the May 2010 evaluations by Dr. Ragland and Dr.
Abu-Elmagd as relevant to the extent of plaintiff’s disability on March 1, 2009. Pl.’s Reply at 10
(arguing that defendants should have considered Dr. Noel’s 2009 assessment). But that does not
necessarily follow, since, as Reliance pointed out, those conditions existed when she was initially
cleared to return to work, and her doctor indicated that she could perform some of the necessary
tasks in the March 2008 report. At bottom, plaintiff is asking the Court to assume that plaintiff’s
condition in March of 2008 was the same as it was six months, a year, and even close to two
years later. It was not unreasonable for the insurer to decline to make that assumption, especially
since there are at least some facts in the record that support the conclusion that her condition
actually deteriorated over time.

9       It is also difficult to have much confidence in a report that indicates, for example,
monthly colitis attacks of six to ten minutes duration and a need to be close to a bathroom, when
the treating physician, Dr. Abu-Elmagd, indicates that plaintiff does not have colitis at all.
C.R.S. at 259. Compare C.R.S. at 250 with C.R.S. at 259.

                                                25
       Finally, plaintiff provides a medical and functional capacity assessment from Dr. Abu-

Elmagd dated May 18, 2010. C.R.S. at 258–73. It is notable that even at this point, Dr. Abu-

Elmagd answers the question, “[h]ow many total hours can a Claimant stand and/or walk during

an eight hour workday?” with three hours. And he answers the question, “[h]ow many total

hours can a Claimant sit during an eight hour workday?” with four or more hours. C.R.S. at 260.

When asked whether plaintiff could alternate between sitting and standing on a continuous basis

without experiencing interruption due to pain, the doctor crosses out “pain” and inserts “risk of

clotting.” Id. Throughout the assessment, the doctor highlights the fact that plaintiff is on

cumadin and is at risk of blood clots, see, e.g., C.R.S. at 263, but that was also the situation

immediately after her surgery, so it is unclear whether or why that circumstance has now become

disabling. The form asks if claimant can work an eight-hour day, five days a week, and if she

can maintain her work station for four 2-hour increments each day, but it does not ask about part-

time work. Dr. Abu-Elmagd indicates that plaintiff “becomes significantly fatigued” and that

“the fatigue can be incapacitating.” C.R.S. at 263. He notes that pain and fatigue would

necessitate periods of rest during an eight-hour work period of more than three hours, and that it

would reduce her productivity in an eight-hour day by thirty-six percent or more. Id. At bottom,

even if the Court were permitted to take it into consideration, while the report could fairly

support a disability decision, it does not necessarily render the insurer’s decision – especially if

the test is whether she could perform any work – to be unreasonable.

       Looking at the entire record, including all of the materials that plaintiff and defendants

have submitted over the objection of the other, this is a very close case. Plaintiff did little to

meet her burden under the policy to demonstrate that she was disabled, but defendants have




                                                26
failed to point to much evidence to support the finding that she is not, even under a deferential

standard of review.

       B. The Court cannot assess the reasonableness of Reliance’s decision because it is
          not clear what the grounds for the decision actually were.

       While the Court’s review of Reliance’s decision is highly discretionary, Reliance still

must provide enough evidence to support a finding that the decision was reasonable and

supported by the record. See Block, 952 F.2d at 1454. In order to make that finding, it is

essential that the Court understand what the decision was: what did the plan administrator find

and what were the grounds for that decision? Based on the record submitted by Reliance,

particularly the letter it sent plaintiff denying the claim for benefits, the Court cannot answer

those questions. While the discussion of plaintiff’s medical condition is not difficult to follow, it

is not clear how Reliance plugged those facts into the rubric established under the Policy.

       The denial letter is ambiguous in many respects. First, the letter discusses plaintiff’s

work during the Elimination Period and concludes that she was “actively at work” in excess of

the 160 hours allowed under the Plan. A.R. at 114. Based on this information, Reliance

concludes that she was “capable of performing the material duties of her own occupation at the

time that she was released to work on 11/6/07.” Id. But the Court cannot discern whether the

insurer denied the claim on those grounds, because it goes on to discuss the adequacy of the

medical evidence in the file as well.

       Second, the letter does not address obvious questions raised by the terms of the Policy.

For example, the letter does not address whether Reliance considered the question of whether

plaintiff was “Partially Disabled” as that term is defined under the Policy. A.R. at 112. The

Policy defines that term as:




                                                 27
                [A]s a result of an Injury or Sickness an Insured is capable of performing
                the material duties of his/her regular occupation on a part-time basis or
                some of the material duties on a full-time basis. An insured who is
                Partially Disabled will be considered Totally Disabled, except during the
                Elimination Period.

A.R. at 10, 112. According to the letter, plaintiff was in the Elimination Period between August

20, 2007 and December 14, 2007. A.R. at 114. The medical evidence discussed by Reliance in

the denial letter may support the notion that plaintiff was only partially disabled during the

relevant time period. If Reliance had a principled reason for limiting its review of plaintiff’s

claim to Total Disability, its fails to provide that a reason in the letter, and the fact that the

definition of Partial Disability is referenced several times in the denial letter leaves the Court

wondering whether such an assessment was made, and if not, why not.

        Similarly, the letter fails to address whether plaintiff was assessed for Residual Disability,

which is defined as “being Partially Disabled during the Elimination Period. Residual Disability

will be considered Total Disability[.]” A.R. at 10, 112. This policy term is utterly confusing and

circular because it equates Partial Disability during the Elimination Period to Total Disability.

The record provided to the Court supports a finding that at the very least, plaintiff was Partially

Disabled during the Elimination Period, and it is not clear what bearing those circumstances had

on the decision. 10

        Under these circumstances, the Court cannot conduct even the deferential review that is

contemplated by the ERISA statute in a meaningful way. “Where, as here, a plan administrator

has . . . ‘fail[ed] to make adequate findings or explain adequately the grounds of [its] decision,’

remand to the plan administrator for reconsideration is the appropriate remedy.” Doe v. Mamsi



10     Moreover, the law is clear that ambiguities in insurance contracts should be resolved in
favor of the insured. Columbia Cas. Co. v. Columbia Hosp., 633 F. Supp. 697, 700 (D.D.C.
1986), quoting Continental Cas. Co. v. Beelar, 405 F.2d 377, 378 (D.C. Cir. 1968).
                                                 28
Life and Health Ins. Co., 471 F. Supp. 2d 139, 149 (D.D.C. 2007) (alterations in original),

quoting Kaelin v. Tenet Emp. Benefit Plan, No. 04-2871, 2006 WL 2382005, at * 4 (E.D. Pa.

Aug. 16, 2006); see also Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 472, 477 (7th Cir.

1998) overruled on other grounds by Hardt v. Reliance Standard Ins. Co., 130 S. Ct. 2149 (2010)

(finding that “remand is appropriate where decision-maker fails to make adequate findings or

fails to provide an adequate reasoning.”) While the Court is reluctant to remand the matter to

Reliance given the time that has already elapsed since plaintiff’s claim was initially filed, such

action is the only appropriate response given the ambiguities the Court has identified.




                                                29
   IV.      CONCLUSION

         Because Reliance has failed to adequately explain how the evidence in the record

supports its determination that plaintiff is not entitled to disability benefits, the Court cannot

uphold Reliance’s decision. This case is therefore remanded to Reliance to reconsider its denial

of benefits and to explain specifically how the Policy applies to the evidence in the record, which

section of the Policy is controlling, and whether the decision is based on findings of Total

Disability, Partial Disability, or Residual Disability.     Accordingly, plaintiff’s motion for

summary judgment [Dkt. # 25] is granted in part and denied in part. Defendants’ cross-motion

for summary judgment [Dkt. # 27] is denied. A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge




DATE: September 28, 2012




                                                30
