Trottier v . CNA Group Life Ins. CV-03-544-SM 11/29/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Margaret Trottier, Plaintiff

v. Civil N o . 03-544-SM Opinion N o .

CNA Group Life Assurance, Defendant

O R D E R

Plaintiff Margaret Trottier asserts that CNA Group Life

Assurance (“CNA”) denied her claim for disability benefits in

violation of the Employee Retirement Income Security Act.

et seq. Before the court are cross-motions for

summary judgment. For the reasons given, defendant’s motion for

summary judgment is granted.

Standard of Review

The employee welfare benefit plan at issue “reflects a

‘clear grant of discretionary authority to determine eligibility

for benefits,’” Matias-Correa v . Pfizer, Inc.,

, 11

(1st Cir. 2003) (quoting Leahy v . Raytheon Co.,

1 , 15

(1st Cir. 2002); citing Firestone Tire & Rubber C o . v . Bruch,

0 1 , 115 (1989)). Accordingly, CNA’s determination that

Trottier was not eligible for disability benefits is reviewed

only for arbitrariness and capriciousness. Matias-Correa,

1 . Under that standard, “the administrator’s decision

must be upheld if it is reasoned and supported by substantial

evidence.” Gannon v . Metro. Life Ins. Co.,

1 1 , 213

(1st Cir. 2004) (citing Vlass v . Raytheon Employees Disability

Trust,

7 , 30 (1st Cir. 2001)). “Evidence is

substantial if it is reasonably sufficient to support a

conclusion, and the existence of contrary evidence does not, in

itself, make the administrator’s decision arbitrary.” Gannon,

360 F.3d at 212 (citation omitted).

Relying on decisions from other circuits,1 plaintiff argues

that in cases such as this, where the plan administrator also

funds the benefit plan, a “heightened arbitrary and capricious”

standard of review should be applied. In this circuit, however,

the court of appeals “adhere[s] to the arbitrary and capricious

principle, with special emphasis on reasonableness, but with the

1 Levinson v . Reliance Std. Life Ins. Co.,

(11th Cir. 2001); Doe v . Group Hosp. & Med. Servs.,

0 , 86 (4th Cir. 1993).

2 burden on the claimant to show that the [insurer’s] decision was

improperly motivated.” Pari-Fasano v . ITT Hartford Life &

Accident Ins. Co.,

(1st Cir. 2000) (quoting

Doyle v . Paul Revere Life Ins. Co.,

8 1 , 184 (1st Cir.

1998)). It is not the law in this circuit that “a wrong but

apparently reasonable interpretation is arbitrary and capricious

if it advances the conflicting interest of the fiduciary at the

expense of the affected beneficiary or beneficiaries unless the

fiduciary justifies the interpretation on the ground of its

benefit to the class of all participants and beneficiaries.”

Levinson,

(quoting Brown v . Blue Cross & Blue

Shield, Inc.,

(11th Cir. 1990)). If it

were, the result might be different, but not assuredly s o .

Background

On October 7 , 2002, Trottier made a claim for disability

benefits. (Administrative Record (hereinafter “A.R.”) at 265-

69.) By letter dated November 1 1 , 2002, CNA disability

specialist Robert D. Manning informed plaintiff that:

At this time, additional medical information is being obtained from D r . Shearman concerning the details

3 of your disability status, exact limitations, treatment plan, prognosis, etc.

CNA cannot complete our evaluation of your claim until we receive this information. If we do not receive the required information from your attending physician within 10 business days from the date of this letter, your file will be closed. However, should we receive this information later, we will re-open your claim and give it our full consideration.

(A.R. at 261-62.) Trottier’s claim was denied in a letter dated

January 1 6 , 2003, from Faye Bernabe, a CNA claims consultant.

(A.R. at 186-88.) In that letter, Bernabe explained the appeal

process and stated: “If you have additional medical information

not mentioned above or wish us to reconsider our decision, you

should submit your formal request for reconsideration in writing

to my attention within 180 days of the date of this letter.”

(A.R. at 187 (emphasis in the original).)

On February 1 1 , 2003, the Social Security Administration

(“SSA”) determined that Trottier had been disabled since July 1 7 ,

2002, and was, therefore, eligible for Social Security disability

insurance benefits. (A.R. at 44.)

4 On June 2 6 , 2003, Trottier sought reconsideration of CNA’s

January 16 decision to deny her benefits. (A.R. at 42-43.) By

letter dated July 2 5 , 2003, Faye Bernabe declined to change CNA’s

previous decision, and forwarded the claim for a formal appeal

review. (A.R. at 20.) In her July 25 letter, Bernabe stated

that “[t]he medical consultant that reviewed M s . Trottier’s claim

feels that the claim is driven by the self-reported symptoms of

the claimant and there [were] no objective physical examination

findings or test results to support the physician’s restrictions

and limitations.” (Id.) On August 2 5 , 2003, Trottier’s appeal

was denied. (A.R. at 10-11.) In reaching its decision, CNA

considered evidence and opinions provided by D r . Shearman (a

treating physician), D r . Luchsinger (a treating physician), D r .

Passas (an examining physician, to whom Trottier had been

referred by D r . Luchsinger), and D r . Gerstenblitt (a non-

examining physician who conducted a review of Trottier’s medical

records). On September 8 , 2003, Trottier sent CNA a letter from

Dr. Shearman, dated August 1 2 , 2003, opining that Trottier was

disabled. (A.R. at 4-6.) Doris Gloss, a CNA appeal consultant,

responded:

5 The additional information submitted by D r . Shearman was dated 10 months after the period of disability in question. . . . This information dated 8/12/03 would not speak to M s . Trottier’s condition prior to 10/14/02. Therefore, this information does not alter the decision that was made by CNA . . .

(A.R. at 3.)

Discussion

In her “Statement of Facts,” Trottier makes the following

recitation:

On November 1 1 , 2002, M s . Trottier applied for long-term disability benefits through the Defendant corporation.

On January 1 6 , 2003, Defendant issued a denial letter without having informed M s . Trottier of the date and time when documentation of her inability to work could no longer be submitted.

On February 1 1 , 2003, Plaintiff Margaret Trottier was awarded Social Security Disability benefits due to her inability to perform her work as a visa processing specialist.

On June 2 6 , we sent a letter requesting reconsideration.

On August 2 5 , 2003, this reconsideration request was returned along with a letter of additional denial, which failed to consider additional evidence submitted in support of M s . Trottier’s claim.

6 (Pl.’s Mem. of Law at 1-2.) The argument section of plaintiff’s

memorandum of law states, in its entirety:

CNA’s failure to inform M s . Trottier of the deadline to submit medical evidence of her disability is clearly arbitrary and capricious. This decision prevented M s . Trottier from submitting additional evidence in support of her claim, including the expert opinion of D r . Shearman, as well as evidence from the Social Security Administration which has found M s . Trottier to be disabled and therefore qualified for Social Security Disability benefits.

(Pl.’s Mem. of Law at 8.)

Plaintiff’s argument is without merit. As a factual matter,

even assuming that CNA did fail to inform Trottier of deadlines

for submitting documentation of her disability prior to denying

her benefits on January 1 6 , 2003, any such failure was completely

mitigated by the language of the January 16 letter, which

expressly invited the submission of additional information.2

Similarly, it is inaccurate to say that CNA failed to consider

the additional evidence submitted after its August 2 5 , 2003,

2 As well, even after CNA issued its final decision on Trottier’s appeal, on August 2 5 , 2003, CNA allowed Trottier to submit, and did in fact consider, at least two additional pieces of documentation – D r . Shearman’s August 12 office note and his opinion letter of the same date.

7 final decision. CNA did consider that evidence, but declined to

rely upon i t , concluding from an examination of the evidence that

it did not pertain to the relevant time period. In sum, nothing

in the record supports a claim that CNA ever rejected any of

plaintiff’s evidence as untimely or failed to substantively

consider any of her evidence.

Regarding plaintiff’s award of Social Security disability

benefits, defendant was made aware of that fact by letter dated

June 2 6 , 2003 (A.R. at 4 2 ) , and, as a result, defendant knew of

the award when its Appeals Committee affirmed the denial of

benefits on August 2 5 , 2003 (A.R. at 1 0 ) . “[B]enefits

eligibility determinations by the Social Security Administration

are not binding on disability insurers.” Pari-Fasano,

(citing Doyle,

n . 4 ) . “[A]lthough a

related Social Security benefits decision might be relevant to an

insurer’s eligibility determination, it should not be given

controlling weight except perhaps in the rare case in which the

statutory criteria are identical to the criteria set forth in the

insurance plan.” Pari-Fasano,

. While plaintiff

argues that it was arbitrary and capricious for defendant to

8 preclude her from submitting evidence concerning her eligibility

for Social Security disability benefits, she has failed to allege

harm because she does not contend that the CNA plan set forth

criteria identical to those used by the Social Security

Administration. Because Social Security disability

determinations are not binding on disability insurers, and

because plaintiff has made no showing that CNA’s disability

determination was governed by standards identical to those used

by SSA, it was not arbitrary and capricious for CNA to find that

plaintiff was not disabled, simply because the SSA determined

that she was.

Defendant argues that it is entitled to summary judgment

because plaintiff failed t o : (1) provide objective medical

findings to support her disability claim; and (2) prove

restrictions and limitations that prevented her from doing her

job. Defendant further argues that it was not an abuse of

discretion for it t o : (1) discount D r . Shearman and D r .

Luchsinger’s favorable opinions, given both the lack of objective

findings to support those opinions and the contradictory opinions

of Drs. Passas and Gerstenblitt; (2) rely on an independent

9 review of plaintiff’s medical records; and (3) determine that

plaintiff was not disabled after the Social Security

Administration had determined that she was eligible for SSA

disability insurance benefits.

Defendant’s decision to deny coverage was not arbitrary and

capricious because it was supported by substantial evidence in

the form of opinions from an independent medical records examiner

and an examining physician to whom plaintiff had been referred by

her own treating physician.3 The record does contain medical

opinions supportive of plaintiff’s position, i.e., those of Drs.

Luchsinger and Shearman, but that evidence did not compel

defendant to discredit the contradictory and non-supportive

medical opinions of Drs. Gerstenblitt (A.R. at 27) and Passas

(A.R. at 1 6 2 ) . See Gannon, 360 F.3d at 212 (citation omitted).

It was not, in other words, “arbitrary and capricious” of CNA to

credit one set of medical experts over another.

3 The fact that plaintiff was referred to D r . Passas by her own physician considerably hampers plaintiff’s ability to demonstrate improper motivation on the part of CNA. See Pari- Fasano,

(explaining that claimant bears the burden of showing that the insurer’s decision was improperly motivated).

10 Conclusion

For the reasons given, plaintiff’s motion for summary

judgment (document n o . 7 ) is denied, and defendant’s motion for

summary judgment (document n o . 10) is granted. The clerk of the

court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 2 9 , 2004

cc: Linda E . Fraas, Esq. Vicky S . Roundy, Esq.

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