Arsenault v . Metropolitan Life 03-133-PB 10/01/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

JoAnne Arsenault

v. Civil N o . 03-133-PB Opinion N o .

Metropolitan Life Insurance Company and Westinghouse Electric Company

MEMORANDUM AND ORDER

JoAnne Arsenault (“Arsenault”) brings this action pursuant

to the Employee Retirement Income Security Act (“ERISA”),

(a)(1)(b), to recover benefits allegedly due to her

under the terms of the Westinghouse Electric Company Welfare

Benefits Plan (the “Plan”), which is administered by defendant

Metropolitan Life Insurance Company (“MetLife”). Arsenault

alleges that MetLife’s decision to terminate her disability

benefits was arbitrary and capricious. Before me are defendants’

motion for summary judgment (Doc. N o . 10) and plaintiff’s cross-

motion for summary judgment (Doc. N o . 1 1 ) . For the reasons set

forth below, I grant defendants’ motion and deny Arsenault’s

motion. I. BACKGROUND1

Arsenault began working for Westinghouse Electric Company

(“Westinghouse”) (formerly known as ABB Combustion Engineering)

as an administrative assistant in July 1990. As a Westinghouse

employee, Arsenault was eligible to participate in the company’s

welfare benefits Plan.

A. The Plan

The Plan provides, among other benefits, long-term

disability coverage to eligible employees through a group

insurance policy issued by MetLife. In particular, the Plan

provides for the payment of long-term disability benefits to

eligible employees who are determined, by MetLife, to be “totally

disabled.” Under the Plan, an employee will be considered

“totally disabled” i f , “due to Injury or Sickness,” he or she is

“continuously unable to perform each of the material duties” of

his or her “regular job” and requires “the regular care and

attendance of a Doctor.” (Admin. R. at 7 ) .

After receiving benefit payments for 12 months, an employee

1 The background facts set forth herein are taken from the Administrative Record (“Admin. R.”) filed with this court by the defendants as an Appendix in support of their motion for summary judgment.

-2- will be considered “totally disabled” under the Plan only if he

or she is also “completely and continuously unable to perform the

duties of any gainful work or service for which [the employee is]

reasonably qualified taking into consideration [the employee’s]

training, education, experience and past earnings.” (Admin. R.

at 8 ) . The Plan alternatively provides that an employee will be

considered “totally disabled” when, due to injury or sickness, he

or she “suffers an 80% loss of earning capacity” and requires

“the regular care and attendance of a doctor, unless in the

opinion of a doctor, future or continued treatment would be of no

benefit.” (Admin. R. at 8 ) .

To qualify for long-term disability benefits under the Plan,

an employee must submit written proof demonstrating, to the

satisfaction of MetLife, that he or she is eligible for such

benefits. (Admin. R. at 1 2 ) . The Plan expressly invests the

Plan administrator with “discretionary authority to interpret the

terms of the Plan and to determine eligibility for and

entitlement to Plan benefits in accordance with the terms of the

Plan,” and specifies that any such interpretation or

determination “shall be given full force and effect, unless it

can be shown that the interpretation or determination was

-3- arbitrary and capricious.” (Admin. R. at 1 6 ) .

B. Arsenault’s Shoulder Surgeries

In February 2001 Arsenault saw D r . Guy M . Esposito,

complaining that she had been having trouble with right shoulder

pain “on and off for over a year.” Arsenault also reported that

the pain had “become worse in the past three months.” Based on

her reported symptoms and his examination, D r . Esposito believed

Arsenault had rotator cuff tendinitis and gave her a

corticosteroid injection. (Admin. R. at 2 3 9 ) .

When D r . Esposito saw Arsenault again, in May 2001, she

reported that while the corticosteroid injection had given her

relief for about six weeks, the pain in her right shoulder had

returned. D r . Esposito noted that he would have her do “modified

duty” and then referred Arsenault to D r . Charles Blitzer for

possible shoulder surgery. (Admin. R. at 2 3 8 ) . Arsenault first

saw D r . Blitzer on June 7 , 2001. He diagnosed her with a torn

rotator cuff in her right shoulder and performed surgery to

repair that tear for June 1 8 , 2001. (Admin. R. at 5 7 ) .

Arsenault’s last day of work at Westinghouse was June 1 5 , 2001.

(Admin. R. at 2 9 ) .

In a post-surgical examination on July 1 3 , 2001, Arsenault

-4- reported to D r . Blitzer that she was also having left shoulder

pain. D r . Blitzer indicated that Arsenault would need to have an

MRI so he could determine the cause of her pain, but elected to

wait until the healing in her right shoulder had progressed.

(Admin. R. at 5 4 ) . On August 1 0 , 2001, D r . Blitzer reported that

Arsenault was “doing somewhat better” than she had been the week

before. At this office visit he also discussed the results of

the MRI on her left shoulder and his diagnosis of a torn rotator

cuff. D r . Blitzer explained to Arsenault that he wanted to see

more progress in the healing and rehabilitation of her right

shoulder before considering surgery on her left shoulder.

(Admin. R. at 5 2 ) . After evaluating Arsenault on September 4 ,

2001, D r . Blitzer reported that her wound looked “excellent” and

that she was “distinctly improved” and in “better spirits.”

(Admin. R. at 5 1 ) .

After an initial evaluation conducted on June 2 2 , 2001,

Arsenault commenced physical therapy on her right shoulder on

July 1 3 , 2001. (Admin. R. at 6 2 ) . The physical therapy records

indicate that as of October 9, 2001, she had made “satisfactory

progress thus far” and by that date was able to reach behind her

back. The October 9, 2001 report also indicated that while

-5- Arsenault would benefit from continued therapy to increase her

strength, her rehabilitation potential was “good” to “excellent.”

(Admin. R. at 6 6 ) .

On November 1 2 , 2001, D r . Blitzer surgically repaired a

“small rotator cuff tear” in Arsenault’s left shoulder. In a

post-operative examination on November 2 0 , 2001, he reported that

she had “[v]ery good range of motion” in her right shoulder and

that she was “[g]etting along reasonably well.” (Admin. R. at

232). After an examination on December 7 , 2001, he noted that

overall Arsenault was “getting along very well” and was “more

comfortable.” Then, after his December 7 , 2001, examination, D r .

Blitzer indicated that he wanted Arsenault both to “get into

physical therapy for a small rotator cuff protocol” for her left

shoulder, and to continue to strengthen her right shoulder. At

this time he concluded that she had a “very distinctly limited

work capacity.” (Admin. R. at 2 3 3 ) .

Arsenault began physical therapy on her left shoulder on

December 1 5 , 2001, three days after an initial evaluation. At

the evaluation it was expected that within approximately ten

weeks Arsenault would be able to “[r]eturn to work without

restrictions.” (Admin. R. at 1 2 3 ) . This evaluation further

-6- noted that Arsenault was having trouble sleeping and that her

symptoms were aggravated by cold weather. In an office visit

note dated January 1 8 , 2002, D r . Blitzer indicated that

Arsenault’s was “getting along somewhat better” and was

“[d]istinctly improved albeit slowly,” but still had a “very

limited work capacity.” D r . Blitzer recommended Arsenault for

aquatic therapy on her left shoulder because this form of therapy

had worked well on her right shoulder. (Admin. R. at 2 3 5 ) .

Approximately two weeks later, on February 4 , 2002,

Arsenault reported that she was “doing more” and that she had

“made some gains in pool therapy.” After this office visit, D r .

Blitzer noted that Arsenault was making “satisfactory progress”

and “steady gains.” He stated, however, that based upon his view

of her job description, Arsenault continued to have a very

limited work capacity. Then, after a telephone conversation with

Arsenault the next day, February 5 , 2002, D r . Blitzer indicated

that while he still did not believe she had a useful work

capacity, he expected this assessment to change in 4-6 weeks.

(Admin. R. at 2 3 6 ) .

Dr. Blitzer next saw Arsenault on March 8 , 2002, and

reported that her right shoulder was “doing really well” and that

-7- the range of motion on the right side was “excellent with minimal

tenderness.” He further noted that the left shoulder was “still

moderately stiff,” although it continued to slowly improve. Dr.

Blitzer again noted that Arsenault was making progress, but felt

“given her anxiety that things are going to proceed somewhat

slowly.” He recommended that she get a “mini” functional

capacities assessment (“FCA”) to evaluate her work capacity.

(Admin. R. at 2 3 7 ) .

In the Physical Residual Functional Capacity Questionnaire

dated March 1 3 , 2002, D r . Blitzer indicated that he had

surgically repaired both of Arsenault’s torn rotator cuffs and

that her prognosis was “good.” Although he reported that

Arsenault had some numbness in her hands, at no point in this

questionnaire did D r . Blitzer indicate that she suffered from

carpal tunnel syndrome. (Admin. R. at 196-202).

C. Arsenault’s Claim for Accident & Sickness Benefits

After the surgery on her right shoulder, on June 2 6 , 2001,

Arsenault made a claim for “Accident & Sickness” benefits (also

referred to as short-term disability benefits) under the Plan.

In her claim Arsenault reported that she was prevented from

working because she had surgery on her right shoulder on June 1 8 ,

-8- 2001. In the July 2 6 , 2001 attending physician statement (“APS”)

that accompanied Arsenault’s claim, D r . Blitzer indicated that he

had surgically repaired a large rotator cuff tear in her right

shoulder. Rather than completing the form APS sent by MetLife

which asked for specific information regarding Arsenault’s

physical capabilities,2 D r . Blitzer submitted his own form that

merely stated that Arsenault was currently unable to work, and

that it was “undetermined” when she would be able to return to

work. (Admin. R. at 31-36). He signed Arsenault’s disability

certificate on August 3 , 2001. (Admin. R. at 4 1 ) .

As he had on July 2 6 , 2001, on August 23 (Admin. R. at 38-

4 0 ) , October 11 (Admin. R. at 67-70), and December 3 1 , 2001

(Admin. R. at 90-93), D r . Blitzer elected not to complete the

detailed APS forms sent to him by MetLife and simply repeated

that, as of those dates, it remained “undetermined” when

Arsenault would be able to return to work. Based on the

2 For example, the APS asked for specific information regarding the number of hours the patient could sit, stand, and walk; the patient’s ability to climb, twist, bend, stoop, reach above shoulder level; the patient’s ability to lift or carry weights between 0 and 100 pounds; and the patient’s ability to repetitively perform fine finger movements, eye/hand movements and pushing/pulling.

-9- information available, MetLife approved Arsenault’s claim and

paid her short-term disability benefits, effective June 1 5 , 2001.

Arsenault continued to receive these benefits until she was

notified by letter dated December 1 1 , 2001 that her short-term

benefits would be terminated, effective December 1 7 , 2001.

(Admin. R. at 8 0 ) .

D. Arsenault’s Claim for Long-Term Disability Benefits

MetLife’s December 1 1 , 2001 letter to Arsenault also

provided her with the Long-Term Disability (“LTD”) application

that she and her physician(s) were to complete in order for

MetLife to determine whether she qualified for long-term

benefits. In support of her claim, Arsenault was asked to

submit, prior to January 1 5 , 2002, the following documentation:

an Agreement Concerning Long Term Disability Benefits, an

Attending Physician Statement, an Activities of Daily Living

form, Social Security Authorization, and a Training, Education

and Experience Statement. (Admin. R. at 8 0 ) .

In late December 2001 or early January 2002, Arsenault

completed an exhaustive Activities of Daily Living form in which

she described the details of her daily routine. (Admin. R. at

102-11). In this report, Arsenault noted that she was unable to

-10- sleep due to the pain in her shoulders and the resulting

inability to find a comfortable resting position. In the section

of the report that asked if she could return to her job if

accommodations were made, Arsenault indicated that she would be

able t o :

do some data entry with intermittent breaks. Could answer phone (if I had a headset it would help), Distribute mail (not boxes or tubes). Proof reading correspondences or manuals. Could assist w/ software questions, just can’t play waitress. But I could work with caterers making plans for in-house lunch guests. Could do light mail postage metering. Order office supplies (but couldn’t lift supplies) to unpack them (they come in large b o x ) . I could order lunches but can’t set up & serve, due to the weights of soda and coffee pots & trays of sandwiches. Could do light filing in lower drawers, no overhead drawers. Could type short letters or memos, make copies & distribute as long as someone else carries the reams of paper to keep printers and copiers filled (1 ream weighs about 8lbs) and the copier takes 4 reams, (the printers & fax machines upstairs and downstairs were my responsibility). I could make the calls for service on office machines. I could mention too, that ergonomics are most important in the above. (Admin. R. at 106-07).

Although Arsenault noted that she had been in counseling for

depression and anxiety, nowhere in the Activities of Daily Living

did Arsenault indicate that she would be unable to return to work

as a result of any psychological condition, nor did she state

that such an impairment would impact her ability to work.

-11- Rather, she provided only a comprehensive assessment of her

physical capabilities at that time. Likewise, although in a

February 6, 2002 mental status exam report, D r . Brian F. Jackson,

Ph.D, indicated that Arsenault was “in a depressed mood” and also

described the “feelings of lowered self-esteem” and “decreased

abilities to focus” that Arsenault had reported to him, he

nevertheless noted that her speech was “coherent” and “logical,”

her affect was “appropriate to the content of the information

discussed,” and she did not suffer from “hallucinations,

delusions, misinterpretations, preoccupations, obsessions,” or

“phobic ideas.” Like Arsenault herself, D r . Jackson did not note

the existence of a psychological condition that would prevent her

from returning to work. (Admin. R. at 161-63).

Based upon the reports from Arsenault and her treatment

providers, MetLife informed Arsenault in a letter dated March 1 ,

2002 that her long-term benefits had been denied, effective

December 1 7 , 2001. The letter enumerated the specific evidence

MetLife considered in making its benefits determination,

including the February 6, 2002 report from D r . Jackson. MetLife

explained that, based on its review of this evidence, Arsenault’s

claim had been denied “due to lack of proof of disability

-12- provided to MetLife to support [her] inability to perform [her]

occupation at Westinghouse Electric Company as an Administrative

Assistant.” (Admin. R. at 170-71).

E. Arsenault’s Appeal

In a letter from her attorney dated August 2 6 , 2002,

Arsenault appealed MetLife’s denial of her claim for long-term

disability benefits and requested that her benefits be

reinstated. (Admin. R. at 173-75). In support of her appeal,

Arsenault’s counsel provided MetLife with the Social Security

Administration’s July 1 9 , 2002 decision awarding her disability

benefits (effective December 2001), as well as treatment records

and other reports from various medical professionals, all of whom

treated or evaluated her. These included reports from D r .

Richard Naimark, D r . Blitzer, D r . Jackson, Nurse Jaynee Fuller,

Dr. Esposito, D r . Roy A . Hepner, Marshbrook Rehabilitation, as

well as an EMG report dated March 2 0 , 2002. (Admin. R. at 176-

248).

MetLife referred Arsenault’s appeal to D r . Amy Hopkins,

M.D., an independent physician consultant who is board certified

in internal and occupational medicine, and D r . Mark Schroeder,

-13- M.D., an independent physician consultant who is board certified

in psychiatry. After D r . Hopkins and D r . Schroeder reviewed

Arsenault’s appeal, MetLife referred it to Steven Fresa, a

vocational rehabilitation consultant, to get more information

regarding the physical requirements of Arsenault’s job, and to

determine if she could perform this job. (Admin. R. at 329-30).

On December 1 0 , 2002, MetLife contacted Arsenault’s counsel

by telephone and notified him that MetLife had agreed to

reinstate Arsenault’s disability benefits for the period between

December 1 7 , 2001 and March 2 6 , 2002. This determination was

made after D r . Hopkins and D r . Schroeder reviewed the medical

evidence submitted to MetLife by Arsenault’s various treatment

providers. MetLife determined that a reinstatement of

Arsenault’s benefits was appropriate because a functional

capacities evaluation conducted on March 2 6 , 2002 (“KEY Job

Placement Assessment”) indicated that as of that date, she had

the functional ability to hold more than a sedentary job. In the

telephone call, MetLife representative Penny Gadbois also

indicated that a decision as to whether benefits would be paid

-14- after March 2 6 , 2002 would be made within the next few weeks.

(Admin. R. at 279-80).

1. Dr. Hopkins’ Review of the Evidence

As an independent physician consulted by MetLife, D r .

Hopkins was asked to resolve three questions based on the medical

evidence provided. First, she was asked if there were any tasks

that Arsenault would be unable to perform in her job as an

administrative assistant. Second, she was asked to determine if

the functional capacity testing provided validity testing by

which she could assess whether the KEY Job Placement Assessment

reflected Arsenault’s true functional abilities. Finally, D r .

Hopkins was asked if D r . Blitzer’s recommendations regarding

Arsenault’s ability to work were supported by the medical records

available. (Admin. R. at 283-84).

After reviewing the available medical records, D r . Hopkins

found that there was no documentation to support D r . Blitzer’s

August 2 0 , 2002 letter (Admin. R. at 250-51, submitted to MetLife

in support of her August 2 6 , 2002 appeal). In that letter, D r .

Hopkins concluded that D r . Blitzer recommended greater

restrictions on Arsenault’s lifting abilities than were justified

by the record. Nor did any documentation support the conclusion

-15- that her condition worsened after the March 2 6 , 2002 KEY Job

Placement Assessment. D r . Hopkins further observed that D r .

Blitzer submitted no office visit notes after March 8 , 2002.

With respect to the March 2 6 , 2002 KEY Job Placement Assessment,

Dr. Hopkins noted that Arsenault may have been “deconditioned,”

and at times she demonstrated unsafe postures, but was still able

to occasionally lift and carry 12 pounds with her left hand and

17 pounds with her right, and push/pull up to 33 pounds

occasionally and up to 20 pounds frequently. (Admin. R. at 285-

87).

Dr. Hopkins did, however, indicate that Arsenault’s job

description was not sufficiently detailed for her to determine

what Arsenault’s actual duties were. As a result, D r . Hopkins

could not ascertain if Arsenault would have been able to perform

the duties of her regular job as of December 1 7 , 2001.3 She also

found that the KEY Job Placement Assessment testing was of

limited use, in part because it lacked validity testing.

Finally, with respect to D r . Blitzer’s report that Arsenault felt

3 On December 3 0 , 2002, MetLife received an accurate description of Arsenault’s job from Richard Frisbey. (Admin. at 3 3 2 ) .

-16- that Attention Deficit Hyperactivity Disorder (“ADHD”) would

limit her ability to sit, stand, and walk, D r . Hopkins concluded

that there was no objective evidence of the diagnosis or

treatment of ADHD, or any resulting limitations. Accordingly,

Dr. Hopkins found that the only possible limitations relevant to

the claim period were related to Arsenault’s left shoulder.

(Admin. R. at 285-87).

2. Dr. Schroeder’s Review of the Evidence

Like D r . Hopkins, D r . Schroeder was consulted by MetLife as

an independent physician, and asked to determine if the medical

records supported Arsenault’s claim of a severe, consistent,

objective psychiatric impairment that precluded her from

performing her own occupation. If s o , D r . Schroeder was asked

whether the medical records indicated what restrictions or

limitations, if any, would impact her ability to work. Finally,

Dr. Schroeder was asked to determine if the psychiatrist’s and

psychologist’s recommendations regarding Arsenault’s ability to

work were supported by the medical evidence provided. (Admin. R.

at 2 8 9 ) .

Dr. Schroeder examined the reports from D r . Blitzer, D r .

Jackson, D r . Naimark, and Nurse Fuller, the Activities of Daily

-17- Living form Arsenault completed, as well as her Arsenault’s job

description. On December 3 , 2002, he issued his Physician

Consultant Review. In this report, D r . Schroeder noted that

Arsenault’s Activities of Daily Living form was “detailed” and

“well-organized,” and in it she documented a number of physical

problems, but no specific psychiatric problems related to

functional impairment. D r . Schroeder pointed out that on this

form Arsenault herself stated that, with accommodations, she

could return to her job. Furthermore, Arsenault’s description of

her living situation offered no indication that she suffered from

significant psychiatric symptoms or impairments. (Admin. R. at

290-91).

With respect to Arsenault’s claimed psychiatric conditions,

Dr. Schroeder concluded that the record did not support a clear,

consistent, objective psychiatric impairment sufficient to

preclude her from performing the essential duties of her job. He

found that Nurse Fuller and D r . Jackson’s records described vague

and apparently self-reported symptoms. He noted, however, that

Dr. Jackson’s February 6, 2002 Observed Mental Status exam was

essentially within normal limits. And although D r . Jackson made

reference to bipolar disorder, post-traumatic stress disorder,

-18- and attention deficit disorder in his reports, “diagnostic

information supportive of these diagnoses” was not provided in

the records. (Admin. R. at 291-93).

Dr. Schroeder found D r . Naimark’s notes to be both brief and

vague. His review of D r . Naimark’s records established that

Arsenault demonstrated improvement shortly after her first

evaluation on April 3 , 2002. According to D r . Naimark,

Arsenault’s thought process was “goal directed” on April 1 0 ,

2002, and her affect was “appropriate” by April 3 0 , 2002. None

of D r . Naimark’s other notes described objective and severe

psychiatric symptoms or impairments. (Admin. R. at 2 9 3 ) .

On balance, D r . Schroeder concluded, the record did not

support the listed psychiatric diagnoses. Indeed, the

psychiatric symptoms in Arsenault’s records appeared to be self-

reported emotional distress, largely unsubstantiated by detailed

objective mental status abnormalities. Furthermore, in D r .

Schroeder’s view, none of Arsenault’s treatment providers

provided evidence of diagnostic testing that would tend to

corroborate Arsenault’s largely self-reported symptoms. (Admin.

R. at 293-94).

3. MetLife’s Determination of Benefits After March 26,

-19- 2002

On January 8 , 2003 MetLife issued its final decision on

Arsenault’s appeal. The decision notified her that her claim for

long-term disability benefits had been approved for the period

between December 1 7 , 2001 and March 2 6 , 2002, but denied for the

period after March 2 6 , 2002, because she no longer met the

definition of “totally disabled” under the Plan. In the January

8 , 2003 letter, MetLife informed Arsenault that in reviewing her

entire claim, it relied on the information she submitted with her

August 2 6 , 2002 appeal letter as well as the supplemental

information she provided throughout the fall and winter of 2002.

The letter summarized Arsenault’s job description, which was

classified by a Westinghouse representative as between light and

sedentary. The letter also detailed MetLife’s evaluation of the

evidence. MetLife explained that as of December 1 7 , 2001, the

first date on which Arsenault was eligible for long-term

disability benefits, she was still experiencing pain, limitation

of motion, and tenderness in her left shoulder, but that she had

recovered from the surgery on her right shoulder. This

conclusion was based upon, and was consistent with, D r . Blitzer’s

office notes from the relevant period. As a result of the

-20- condition of Arsenault’s left shoulder, MetLife found that it was

reasonable to conclude that she would have been unable to perform

the duties of her regular job as of December 1 7 , 2001. (Admin.

R. at 295-98).

Similarly, the results of the KEY Job Placement Assessment

conducted on March 2 6 , 2002 indicated that Arsenault was now able

occasionally lift and carry up to 17 pounds with her right hand

and up to 12 pounds with her left hand, and was occasionally able

to push/pull 33 pounds. Steven Fresa, the Vocational

Rehabilitation Specialist who reviewed Arsenault’s appeal on

December 3 0 , 2002, found that this functional capacity was

compatible with Arsenault’s regular job duties. Based on these

assessments, MetLife determined that Arsenault was eligible for

long-term disability benefits from December 1 7 , 2001 through

March 2 6 , 2002. (Admin. R. at 295-98).

Next, MetLife explained that D r . Blitzer’s March 8 , 2002

office note indicated that because Arsenault complained of hand

numbness and pain, he ordered an EMG/NCV, conducted on March 2 0 ,

2002, which revealed mild bilateral carpal tunnel syndrome.

However, there was no indication of any additional physical exam

findings, and the March 2 6 , 2002 KEY Job Placement Assessment,

-21- conducted after the EMG/NCV, demonstrated a functional ability

within the requirements of Arsenault’s regular job. (Admin. R.

at 295-98).

MetLife also found that D r . Blitzer’s August 2 0 , 2002 letter

was inconsistent with his earlier assessments of Arsenault’s

functional capabilities and, moreover, was unsupported by medical

evidence or the KEY Job Placement Assessment. Additionally, the

restrictions D r . Blitzer noted with respect to Arsenault’s

ability to sit, stand, and walk were unsupported by any medical

evidence that indicated what, if any, physical condition affected

these functions. As with other conditions that purportedly

impacted Arsenault’s ability to perform the duties of her regular

job, including bipolar disorder, post-traumatic stress disorder,

and attention deficit disorder, Metlife found that D r . Jackson

and D r . Naimark failed to support their conclusions regarding her

ability to work with sufficient medical evidence.4 Rather,

4 In the January 8 , 2003 letter, MetLife also informed Arsenault that because Nurse Jaynee Fuller is not a physician, her assessments were considered only in the context of the medical records provided by her doctors. MetLife explained that there were no medical records indicating that Arsenault was under the regular care of a doctor for the conditions described by Nurse Fuller for the disability period in question.

-22- according to MetLife’s review of the claim and appeal, they

offered only unsubstantiated judgments and conflicting reports as

to Arsenault’s functional capabilities. (Admin. R. at 295-98).

Metlife then informed Arsenault that it reviewed the Social

Security Award letter, which provided information regarding the

payment of benefits, but did not provide an assessment of

Arsenault’s functional abilities. MetLife further noted that

each benefits program has its own criteria for reviewing and

evaluating claims and medical evidence. Finally, MetLife briefly

reviewed the opinions of D r . Hopkins and D r . Schroeder and

concluded that Arsenault no longer met the definition of

disability as outlined in the Plan. Having exhausted her

administrative remedies, this lawsuit followed. (Admin. R. at

295-98).

II. STANDARD OF REVIEW

When the denial of benefits is challenged under ERISA §

1132(a)(1)(B), “the standard of review depends largely on whether

‘the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

-23- to construe the terms of the plan.’” Leahy v . Raytheon Co.,

1 , 15 (1st Cir. 2002)(quoting Firestone Tire & Rubber C o .

v . Bruch,

0 1 , 115 (1989)). If the plan grants

discretionary authority to the administrator, an “abuse of

discretion” or “arbitrary and capricious” standard of review is

mandated.5 See id.; see also Terry v . Bayer Corp.,

8 ,

37 (1st Cir. 1998). In reviewing a decision to terminate

benefits, a court may not substitute its judgment for that of the

decision-maker. Terry,

(internal quotations

omitted). Nor is it necessary for the court to determine which

side it believes is right. See Brigham v . Sun Life of Canada,

2 , 85 (1st Cir. 2003); Doyle v . Paul Revere Life Ins.

Co.,

8 1 , 183-84 (1st Cir. 1998). Rather, under this

deferential standard of review, a reviewing court must not

disturb a decision by a plan administrator if it was within the

plan administrator’s authority, reasoned and supported by

substantial evidence in the record. See Doyle,

-

84 (internal citations and quotations omitted). Substantial

5 In the First Circuit, there is no substantive difference between “arbitrary and capricious” and “abuse of discretion” review in the ERISA context. Cook v . Liberty Life Assurance C o . of Boston,

1 , 15 n.3 & 17 n.7 (1st Cir. 2003).

-24- evidence means “evidence reasonably sufficient to support a

conclusion.” Id. at 184; see also Recupero v . New England

Telephone and Telegraph Co.,

2 0 , 830 (1st Cir. 1997)

(reviewing court should not set aside a factual finding that has

adequate support in the record). And the “mere existence of

contradictory evidence” does not render a plan administrator’s

determination arbitrary and capricious. Leahy, 315 F.3d at 1 9 ;

Vlass v . Raytheon Employees Disability Trust,

7 , 30

(1st Cir. 2001). In short, MetLife’s termination decision cannot

stand i f , in reaching i t , MetLife ignored a material factor

deserving significant weight, relied upon an improper factor, or

seriously erred in weighing the proper factors. See I.P. Lund

Trading Aps. v . Kohler Co.,

7 , 33 (1st Cir. 1998).

III. ANALYSIS

Arsenault argues that MetLife’s determination that she was

not totally disabled, and that her benefits should be terminated,

was arbitrary and capricious and is unsupported by any

substantial evidence. Specifically, Arsenault charges that

MetLife’s medical experts never addressed the cumulative effects

of her numerous physical and psychological conditions and never

-25- obtained, nor asked Arsenault to provide, an accurate description

of her job duties. See O b j . to Defs.’ Mot. for Summ. J. and

Pl.’s Cross Mot. for Summ. J. (Doc. N o . 11) at 17-20. Arsenault

further charges that MetLife rested its benefits determination on

sources of information that were of limited probative value and,

moreover, gave no weight to the opinions of the various medical

professionals who treated her and corroborated her claim that she

was totally disabled. See

MetLife responds that its benefits eligibility determination

was reasonable in light of the information available. MetLife

further argues that it reasonably accepted the opinions of the

medical and vocational consultants who reviewed the record and

concluded that Arsenault was capable of performing her job as an

administrative assistant at Westinghouse as of March 2 6 , 2002.

See Defs.’ Mot. for Summ. J. (Doc. N o . 10) at 2 0 .

At the root of Arsenault’s argument is her assertion that in

the two letters denying her claim for long-term disability

benefits, dated March 1 , 2002 and January 8 , 2003, MetLife failed

to reference any opinion that she was capable of working and

merely stated that the evidence submitted by Arsenault and her

treatment providers was insufficient or unsupported. The

-26- gravamen of Arsenault’s complaint appears to be her contention

that MetLife had a “duty to obtain its own affirmative evidence”

that she was capable of working, and failed to do this.

Moreover, Arsenault charges that MetLife failed to address the

cumulative effect of her physical and psychological conditions.

See O b j . to Defs.’ Mot. for Summ. J. and Pl.’s Cross Mot. for

Summ. J. (Doc. N o . 11) at 1 7 . Furthermore, Arsenault faults

MetLife both for failing to consider the fact that she had been

awarded Social Security disability benefits and for relying on

the opinions of D r . Hopkins and D r . Schroeder, neither of whom

examined her.6 See O b j . to Defs.’ Mot. for Summ. J. and Pl.’s

Cross Mot. for Summ. J. (Doc. N o . 11) at 1 3 .

The flaw in Arsenault’s first argument is that she

misconstrues the burden of a benefits determination under the

6 In the “Medical Evidence” section of her objection and cross-motion for summary judgment, Arsenault included two reports from D r . Michael Haenick, dated September 1 2 , 2003 and November 1 7 , 2003. These reports were produced long after the administrative proceedings concerning her claim for benefits had concluded and were not part of the administrative record. These reports will therefore not be considered by this Court. See Cook v . Liberty Life Assurance C o . of Boston,

1 , 19 (1st Cir. 2003) (quoting Mitchell v . Eastman Kodak Co.,

(3d Cir. 1997)(observing that “the ‘whole’ record consists of that evidence that was before the administrator when he made the decision being reviewed”)).

-27- Plan. The Plan administrator is not required to conduct an

independent investigation to determine whether or not an employee

is capable of performing the material duties of his or her job.

See Brigham, 317 F.3d at 84-85. Rather, the burden rests with

the employee to provide proof, satisfactory to MetLife, that he

or she is totally disabled and thus entitled to long-term

benefits under the Plan. Again, the language of the Plan is

instructive. The Plan unambiguously requires that the proof

furnished by an employee in support of his or her claim “must be

satisfactory to [MetLife].” Accordingly, to demonstrate her

entitlement to benefits under the Plan, Arsenault was required to

furnish proof sufficient to substantiate her physicians’ claim

that she was unable to work. See Brigham, 317 F.3d at 84-85.

Here, the evidence in the record is capable of supporting

competing inferences as to Arsenault’s ability to return to work

after March 2 6 , 2002. When, as here, the medical evidence is

conflicted, the Plan administrator’s decision to terminate

benefits is not unreasonable and should therefore be accorded

deference. See Leahy, 315 F.3d at 19-20.

Arsenault’s second argument, that MetLife failed to address

the cumulative effect of her physical and psychological

-28- conditions, suffers from the same flawed reasoning. It i s ,

therefore, equally unavailing. As MetLife explained in rejecting

Arsenault’s appeal, reports and records from D r . Jackson and D r .

Naimark failed to provide diagnostic information supportive of

the medical conditions diagnosed, and the medical evidence failed

to support the existence of a psychological condition that

affected Arsenault’s ability to perform the duties of her regular

job. There are undoubtedly cases in which laboratory tests or

other diagnostic procedures will not be necessary to substantiate

a claim of disability, particularly when the disabling condition

underlying the claim is not susceptible to such objective

evaluations. See Cook,

(noting that given the

nature of plaintiff’s disease, it was not reasonable for insurer

to expect her to provide clinical objective evidence of her

condition); Brigham v . Sun Life of Canada,

2 , 84 (1st

Cir. 2003). In Arsenault’s case, however, neither D r . Jackson

nor D r . Naimark provided any explanation for their conclusion

that Arsenault suffered from bipolar disorder, post-traumatic

stress disorder, or attention deficit disorder, and that these

conditions prevented her from returning to work.

Moreover, the medical opinions offered by D r . Jackson and

-29- Dr. Naimark were by no means conclusive. For example, despite

reporting that Arsenault experienced feelings of depression,

anxiety and emotional distress, D r . Jackson’s February 6, 2002

mental status exam concluded that Arsenault was essentially

normal. Similarly, D r . Naimark’s October 8 , 2002 letter

indicating that Arsenault was unable to work due to her symptoms

ran counter to his April 2002 office notes that reported

significant improvement including “good eye contact” and a “goal

directed thought process.” In light of this contradictory

evidence, it was not unreasonable for MetLife to find that the

reported psychological conditions did not have a cumulative

effect on Arsenault’s physical ability to return to work. See

Leahy, 315 F.3d at 19 (observing that when medical evidence is

sharply conflicted, the deference due to a plan administer may be

especially great).

Next, the mere fact of a disability award from the Social

Security Administration is not binding on MetLife. See Gannon v .

Metropolitan Life Ins. Co.,

1 1 , 215 (1st Cir. 2004);

Pari-Fasano v . ITT Hartford Life & Accident Ins. Co.,

(1st Cir. 2000). As MetLife explained in its January 8 ,

2003 letter, the criteria for determining eligibility for Social

-30- Security benefits may be substantially different than the

criteria established by the Plan here. See Matias-Correa v .

Pfizer, Inc.,

, 12 (1st Cir. 2003)(noting that claimant

was required to satisfy the plan’s definition of total disability

rather than the Social Security Administration’s definition);

Pari-Fasano,

. And although a related Social

Security benefits decision might be of some value to a plan

administrator’s eligibility determination, particularly in cases

in which the Social Security Administration makes specific

findings, the Social Security letter in Arsenault’s case only

provided information regarding the payment of her benefits and no

information describing how the Administration reached its

eligibility determination. See Gannon, 360 F.3d at 215.

MetLife’s decision not to credit this eligibility determination

was therefore not unreasonable.

Lastly, MetLife, as the Plan administrator, was authorized

to weigh conflicting evidence and to determine the weight

accorded to the opinions of Arsenault’s physicians. See Vlass,

244 F.3d at 3 2 . The Supreme Court has held that courts may not

require plan administrators to accord special deference to the

opinions of an employee’s treating physicians. See Black &

-31- Decker Disability Plan v . Nord,

2 2 , 834 (2003).

Accordingly, MetLife was permitted to rely upon the opinions of

Dr. Hopkins and D r . Schroeder, even though they did not examine

Arsenault, and even though they based their opinions solely on a

review of the file. See Gannon, 360 F.3d at 214-15; Matias-

Correa v . Pfizer,

, 12 (1st Cir. 2003). It was also

reasonable for MetLife to rely, as D r . Schroeder did in his

December 3 , 2002 physician consultant review, on the information

Arsenault provided in her Activities of Daily Living form, in

which she acknowledged that, with physical accommodations, she

could return to her job as an administrative assistant at

Westinghouse. Arsenault’s own view of her functional abilities

was consistent with, and buttressed by, D r . Blitzer’s evaluations

through March 2002. In fact, it was not until August 2 0 , 2002

that D r . Blitzer recommended greater restrictions for Arsenault,

and, as D r . Hopkins noted, these restrictions were

unsubstantiated by either the KEY Job Placement Assessment or any

medical evidence indicating that Arsenault’s condition had taken

a turn for the worse. Given MetLife’s right to use its

discretion under the Plan, it was for MetLife alone to determine

precisely how to measure the strength of contradictory opinions.

-32- IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary

judgment (Doc. N o . 10) is granted and Arsenault’s cross-motion

for summary judgment (Doc. N o . 11) is denied.

SO ORDERED.

Paul J. Barbadoro Chief Judge

October 1 , 2004

cc: Bradley M . Lown, Esq. William D. Pandolph, Esq.

-33-