Maureen Keough v . Liberty Life Assur. CV-03-266-PB 02/24/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Maurene Keough

v. Civil N o . 03-266-PB Opinion N o .

Liberty Life Assurance Company of Boston

MEMORANDUM AND ORDER

Maurene Keough brings this claim for disability benefits

pursuant to the Employee Retirement Income Security Act of 1974,

(“ERISA”) as amended,

(a)(1)(B), to recover

benefits allegedly due her under the terms of the Liberty Mutual

Insurance Company’s Long-Term Disability Plan (“Plan”). The Plan

is administered by defendant Liberty Life Assurance Company of

Boston (“Liberty Life”). In the single count of the complaint,

Keough alleges that defendant Liberty Life’s decision to

terminate her long term disability benefits was improper and

contrary to the weight of the evidence. Before me are Liberty

Life’s motion for summary judgment (Doc. N o . 9 ) and Keough’s

cross motion for summary judgment (Doc. N o . 1 4 ) . For the reasons

set forth below, I grant Liberty Life’s motion and deny Keough’s motion.

BACKGROUND1

Maurene Keough worked for the Liberty Mutual Insurance

Company (“Liberty Mutual”) as a business analyst for 32 years

until she was hospitalized with a serious heart condition in

October 2000. Compl. at ¶ 5 . As a regular employee of Liberty

Mutual, she was eligible to participate in the Plan. Admin R.

30, 33.

A. The Plan

The Plan provides, among other benefits, long-term

disability (“LTD”) coverage to eligible employees through a group

insurance policy sponsored by Liberty Mutual and issued by

Liberty Life. Admin. R. 1 . In particular, the Plan provides for

the payment of LTD benefits to eligible employees who are

determined by Plan Administrator Liberty Life to be “[d]isabled.”

at 1 3 . The Plan divides eligibility for long-term disability

benefits into two phases. During the first phase of up to 18

1 The background facts set forth herein are taken from the Administrative Record (“Admin. R.”) filed by Liberty Life as an appendix in support of its motion for summary judgment. Where appropriate, additional facts are taken from the pleadings.

-2- months, an employee will be considered “disabled” i f , “due to

Injury or Sickness,” she is “unable to perform all of the

material and substantial duties of [her] own occupation.” Id. at

6, 3 1 . In the second phase, after collecting benefit payments

for 18 months, an employee will continue to be considered

“disabled” only if she is “unable to perform, with reasonable

continuity, all of the material and substantial duties of [her]

own occupation or any other occupation for which [she] is or

becomes reasonably fitted by training, education, experience, age

and physical and mental capacity.”2 Id.

The burden is on the employee to submit to Liberty Life

proof that she is disabled and requires the regular attendance of

a physician. Id. at 1 3 . The Plan also provides that long-term

disability benefits will be paid for the “period of Disability if

the [employee] gives to Liberty proof of continued” disability

and the need for continued regular attendance of a physician.

Id. (Emphasis added). Furthermore, the Plan specifies that long-

term disability benefits will cease if the employee is no longer

2 The two phases of disability under the Plan are frequently referred to as the “own occupation” period (first 18 months) and the “any occupation” period (after 18 months).

-3- disabled. Id. at 1 7 . The Plan expressly invests Liberty Life,

the Plan Administrator, with

the authority, in its sole discretion, to construe the terms of this Plan and decide all questions of eligibility, determine the amount, time and manner of payments of any benefits and decide any other matters relating to the administration or operation of the Plan.

Id. at 3 9 . Finally, the Plan specifies that any “interpretations

or decisions of the Plan Administrator shall be conclusive and

binding.” Id.

B. Keough’s Claim for Short Term Disability Benefits

On October 1 8 , 2000, Keough went to the emergency room at

the Wentworth-Douglass Hospital in Dover, New Hampshire,

complaining of chest pain and shortness of breath. Admin. R. 8 8 ,

100. She was seen by Michael Jacuch, M.D., of Seacoast

Cardiology Associates and later diagnosed with unstable angina,

severe coronary artery disease, hypothyroidism, and

hyperlipidemia with fasting cholesterol. Id. at 96-99.

On October 2 6 , 2000, Keough was transferred to Portsmouth

Regional Hospital for coronary artery bypass surgery. Id. at

100. Keough underwent quadruple bypass surgery on November 1 ,

2000; the surgery was performed by Donato Sisto, M.D. of Coastal

-4- Cardiothoracic Associates. Id. at 103. According to her

November 7 , 2000 discharge summary, “postoperatively [Keough] has

done very well. She has had an uncomplicated course without

dysrhythmia or complications.” Id. at 105-06.

While she was still hospitalized, Keough applied for short-

term disability benefits (“STD”) for the period from October 2 5 ,

2000, through December 7 , 2000. Id. at 109. Liberty Life’s case

manager, Deneen DeCost, requested medical records from D r . Sisto

and D r . Jacuch and asked them each to complete a Restrictions

form and a Physical Capacities form. Id. at 7 6 , 8 0 . In response

to this request, D r . Jacuch forwarded Keough’s medical records,

but did not complete the forms, explaining that he had not yet

seen Keough in his office “post-hospitalization.” Id. at 85-87.

Dr. Jacuch indicated, however, that Keough had an appointment for

an office visit on December 7 , 2000. Id. at 8 7 . Nevertheless,

by letter dated November 8 , 2000, Liberty Life approved Keough’s

claim for STD benefits through December 7 , 2000. Id. at 109.

Unlike D r . Jacuch, D r . Sisto returned completed Restrictions

and Physical Capacities forms to Liberty Life. Id. at 112-13.

On the Restrictions form he estimated that Keough would be able

to return to work in January 2001. Id. at 112. D r . Sisto

-5- indicated that Keough should engage in “no driving, no lifting 5

lbs or more” and he instructed her “not to walk or sit for a long

period of time” through December 2 6 , 2000. Id. On the Physical

Capacities form, D r . Sisto noted that Keough could sit or walk

for up to four hours and stand for up to three hours of an eight-

hour workday, but that she should not do any pushing or pulling

and should limit reaching above the shoulder level to one hour

per workday. Id. at 113. Finally, D r . Sisto indicated that

although Keough could start work as early as December 8 , 2000,

she could not perform any “heavy lifting” until after December

2 6 , 2000.3 Id. On December 7 , 2000, however, a physician’s

assistant from D r . Sisto’s office reported to Liberty Life that

he would like Keough to “hold off on [her return to work] until

1/1/01.” Id. at 4 7 .

Keough in fact saw D r . Jacuch in his office on December 7 ,

2000, as planned. Id. at 145. In his progress notes from this

visit, he indicated that although she was experiencing “some

3 Keough apparently told Liberty Life that she had seen Robert Helm. M.D., of Coastal Cardiothoracic Associates on November 2 1 , 2000 who reportedly thought that a return to work date of December 8 , 2000 “might be right on target.” Admin R.

-6- chestwall tenderness” and “some fatigability,” she was

nevertheless “recuperating nicely.” Id. D r . Jacuch’s notes make

no mention of a return to work date. On December 6, 2000,

however, based on “updated medical information” suggesting that

Keough would be able to return to work on January 8 , 2001,

Liberty Life notified her that it had extended her STD benefits

through January 7 , 2001. Id. at 116.

On December 2 9 , 2000, Keough returned to Wentworth-Douglass

Hospital complaining of a urinary tract infection. Id. at 143.

Thereafter, on January 4 , 2001, she was seen for the first time

by her primary care physician, Gloria Trujillo, M.D., of Dover

Family Practice, for treatment of this infection. Id. at 135.

Keough reported to D r . Trujillo that “her energy is doing well,”

and that she “has had no chest pain, no shortness of breath, no

pedal edema.” Id. Following this examination, D r . Trujillo

referred Keough to cardiac rehabilitation. Id. at 136.

Keough returned to work on January 8 , 2001, without D r .

Trujillo’s knowledge or permission, but after only 2.5 hours she

experienced extreme fatigue. Id. at 133. In the short time

Keough was at work that day, she was notified that her position

had been eliminated for budgetary reasons. Id. Keough was

-7- surprised by this news, and reported that when she was being

told, she had some “minor pain,” felt “very stressed and anxious,

and developed some tightness in her chest.” Id. Later that day,

Keough left work and went to D r . Trujillo’s office. Id. By the

time she arrived, the pain in her chest had subsided, but Keough

informed D r . Trujillo that several days earlier she had

experienced intermittent bilateral leg pain as well as muscle

fatigue since her discharge from the hospital. Id. In her office

notes, D r . Trujillo indicated that anemia was likely contributing

to Keough’s fatigue and opined that she needed to start cardiac

rehabilitation before she could “endure long levels of daily

work.” Id. at 134. D r . Trujillo thus concluded that Keough was

“not discharged to work” and gave her a note “to be on leave 4

more weeks.” Id.

Keough next saw D r . Trujillo on January 2 3 , 2001. Id. at

131. This visit was scheduled as a follow-up to evaluate

Keough’s urinary tract infection, coronary artery disease, iron

deficiency anemia, hypothyroidism, and gastoresophogal reflux

disease (“GERD”). Id. In her office notes, D r . Trujillo

reported that:

[Keough] feels in talking with me and D r . Cunningham

-8- that she is really unable to return to work. She brings in with her a five page summary of the stress at Liberty Mutual that she has incurred. She has been employed there for approximately 32 years. She reports that even that several hours of working with incredible stress [sic] and reports and fells [sic] that her heart attack was related to the multiple stressful integrated issues at Liberty Mutual in her current position. She wishes to apply for disability. The [sic] reports no chest pain, no shortness of breath, no pedal edema. She reports incredible fatigue and with any stress she gets very anxious related to that stress. She reports no palpitations. She will be following up with D r . Cunningham as noted above.4

Id. After this office visit, D r . Trujillo gave Keough a note for

her to remain out of work from February 6, 2001 through March 1 ,

2001. Id. at 132. D r . Trujillo also advised Keough that she

would need to involve her cardiologist in her disability claim.

Id.

Nevertheless, on January 3 1 , 2001, D r . Trujillo completed

Liberty Life’s Restrictions form and Physical Capacities form in

support of Keough’s disability claim. Id. at 129-30. On the

Physical Capacities form, D r . Trujillo indicated that Keough

could sit for fewer than four hours, stand for less than one

4 D r . Trujillo’s reference to D r . Cunningham may have been in error, as the record indicates that Keough was being treated by D r . Jacuch, not D r . Cunningham.

-9- hour, walk for about two hours, and could lift 10 pounds or less

three to four times per day, all with breaks. Id. at 129.

Notwithstanding these assessments, D r . Trujillo indicated that

she did not feel Keough “will ever be able to physically endure

[an] 8 hour work day,” due to her significant coronary artery

disease. Id. Similarly, on the Restrictions form, D r . Trujillo

noted that although Keough’s “surgery was successful,” the

“significant extent” of her coronary artery disease prevented her

from performing any “intense, stressful job.” Id. at 130. D r .

Trujillo also noted that Keough’s return to work date was

“unknown.” Id. Based on this updated medical information,

Keough’s STD benefits were further extended, through March 1 ,

2001. Id. at 158.

On February 6, 2001, Keough underwent a stress test. Id. at

182. She could not, however, complete the test because she

developed bilateral intermittent claudication.5 Id. When she

saw D r . Trujillo for a follow-up visit on February 2 7 , 2001,

5 Intermittent claudication is a condition caused by ischemia, or insufficient blood flow, of the muscles due to sclerosis with narrowing of the arteries, and is characterized by attacks of lameness and pain, brought on by walking, and chiefly occurring in the calf muscles. Stedman’s Medical Dictionary 314 (25th ed. 1990).

-10- Keough reported her calf pain and D r . Trujillo recommended that

she be tested for arterial occlusion, given her “significant”

peripheral vascular disease.6 Id. at 184. D r . Trujillo noted,

however, that Keough was in her second week of cardiac

rehabilitation and slowly improving her endurance, and that she

reported no significant shortness of breath, or chest pain. Id.

Keough next saw D r . Jacuch on March 8 , 2001. In his notes

from this visit, D r . Jacuch reported that

[Keough] tells me that she has been feeling relatively well. The issue of anemia has been addressed, and [she] has had evaluation of peripheral vascular disease because of calf claudication. Since starting cardiac rehab, she has been doing well and expanding her exercise tolerance and her capacity for exercise with significantly diminished claudication. She plans to go to The Works [a health club] after she finishes her cardiac rehab. She has lost 15 pounds in one month, feels fantastic about the fact that her exercise tolerance is improving, continues to have no symptoms of chest pain, dyspnea [shortness of breath] on exertion, PND [paroxysmal nocturnal dyspnea], orthopnea [discomfort in breathing], palpitations, syncope [fainting] or edema.

Id. at 191.

6 An arterial occlusion is the blockage of an artery due to the build-up of plaque on the arterial walls, leading to ischemia. See Stedman’s Medical Dictionary 129, 1077(25th ed. 1990).

-11- On the same day, Keough met with a vascular surgeon, D r .

Robert Oram, M.D. He diagnosed her with severe atherosclerotic

disease with bilateral SFA occlusions and evidence of a right

popliteal aneurysm.7 Id. at 190.

On April 2 , 2001, Liberty Life notified Keough that based on

the updated medical information it had received on March 2 1 ,

2001, her STD benefits had been extended through April 1 7 , 2001,

the end of the maximum allowable STD period. Id. at 196.

C. Keough’s Claim for Long Term Disability Benefits

1. The “Own Occupation” Period

Pursuant to the Plan, Keough would be considered “disabled,”

and thus eligible to collect LTD benefits during the first 18

month period i f , due to an injury or sickness, she was unable to

perform all the material and substantial duties of her own

occupation as an Associate Business Analyst. See Admin. R. 6,

31. To evaluate Keough’s LTD claim, Liberty Life asked Liberty

7 On April 1 7 , 2001, Keough underwent an abdominal aortogram and aortofemoral run-off arteriogram at Wentworth Douglass Hospital. Admin. R. 217. These tests revealed “[e]xtensive arteriosclerotic disease involving the aortoiliac vessels, femoral and popliteal vessels” as well as a “total occlusion of both superficial femoral arteries with fill of only short segments of the popliteal arteries” and “[a]rteriovenous fistula involving her right foot.” Id.

-12- Mutual to submit her job description and a Physical Job

Evaluation form. Id. at 207-09. According to Liberty Mutual’s

description, an Associate Business Analyst would be expected to

be sitting for 100% of the time and typing between 25% and 50% of

the time. Id. at 209. As Liberty Mutual explained, this is a

sedentary job that did not require any physical exertion or

lifting. Id. Additionally, Liberty Mutual claimed that this job

would allow Keough to change positions frequently. Id.

On May 2 1 , 2001, D r . Trujillo forwarded to Liberty Life the

results of Keough’s April 1 7 , 2001 tests, indicating that she had

severe vascular disease of her lower extremities. Id. at 214.

She explained that as a result of this condition, Keough could

not sit, stand, or walk for more than 20 minutes at a time, and

would need frequent breaks. Id. D r . Trujillo reported that

Keough had been referred to D r . Oram for further management of

her vascular disease. Id.

Several weeks later, Liberty Life asked D r . Chester Conrad,

M.D., a specialist in internal medicine and cardiovascular

disease, to provide a peer review of Keough’s file.8 Id. at 219-

8 D r . Conrad was asked five specific questions: (1) Based on the job description provided, can M s . Keough return to work at

-13- 24. D r . Conrad reviewed the entire file and also discussed

Keough’s case with D r . Trujillo. Id. at 223. D r . Trujillo

explained to D r . Conrad that although Keough had done reasonably

well following her bypass surgery, from a cardiac standpoint, the

severe claudication significantly limited her ability to

undertake cardiac rehabilitation. Id. D r . Trujillo further

explained that Keough would be unable to work effectively, even

at a sedentary job, until her peripheral vascular disease was

treated, but might be able to return to work if her vascular

problems were resolved. Id. D r . Conrad thus found that there

was no evidence of “post-operative ischemia, congestive heart

failure, arrythmias, or other factors” that would preclude

sedentary work from a cardiac standpoint. Id. Based on his

review of the medical records, and his conversation with D r .

Trujillo, D r . Conrad answered the five questions as follows:

this time? Regardless of your position please explain your reasoning; (2) If not, when do you anticipate she will be re- employable to her own occupation?; (3) What treatment, if any, do you feel [ ] is medically necessary and/or beneficial to help facilitate her return to work possibilities? Please outline specific modalities, frequencies and total duration of expected care; (4) When do you anticipate M s . Keough may reach a level where she can seek some gainful employment?; (5) Do you consider M s . Keough totally disabled from employment at this time? Admin. R. 219.

-14- 1. Based solely on the job description, it appears that [Keough] might theoretically be able to return to work, but the attending physician indicates that the employee has severe claudication and markedly impaired functional capacity, which would likely prevent her from being able to work at the present time.

2. It is quite possible that the employee could return to the job as described if her peripheral vascular disease can be effectively treated.

3. Evaluation and treatment for peripheral vascular disease (possibly including surgery) would likely be useful in improving the employee’s functional capacity and allowing more effective rehabilitation. The attending physician indicates that the employee is to be seen by a vascular surgeon in the near future; if surgery is required, it is likely that a period of several months would be required for recovery and rehabilitation following surgery, although a precise period of time cannot be determined at present.

4. It is likely that the employee would be able to return to employment following treatment of peripheral vascular disease.

5. On the basis of the information provided by the attending physician, it appears that the employee is unable to return to work at the present time.

Id. at 219-20. Accordingly, by letter dated June 1 5 , 2001,

Liberty Life notified Keough that her claim for LTD benefits

during the “own occupation” period had been approved, retroactive

to April 1 8 , 2001. Id. at 225-27. In this letter, Liberty Life

also asked Keough to complete a Training-Education-Experience

-15- form and a Social Security Payment Option form by July 1 6 , 2001.9

Id. at 227. Keough timely complied with this request. Id. at

232.

2. The “Any Occupation” Period

Under the Plan, the own occupation period of Keough’s LTD

benefits was due to conclude on October 1 7 , 2002. Admin. R. 256.

Keough would remain eligible for LTD benefits beyond this date

only if she was disabled, such that she was “unable to perform

all of the material and substantial duties” of her own occupation

or of “any other occupation” for which she was “reasonably fitted

by training, education, experience, age and physical and mental

capacity.” Id. 6, 3 1 . Accordingly, on May 1 3 , 2002, Liberty

Life asked Keough to complete a Claimant’s Information form, a

Claimant’s Supplementary Statement, and an Activities

Questionnaire by June 3 , 2002, and further requested updated

information from Keough’s physicians. Id. at 241. Keough

completed these forms and returned them to Liberty Life on May

1 7 , 2002. See id. at 242-46.

9 Keough was notified on July 3 , 2001 that she was entitled to monthly Social Security disability benefits. Admin. R. 234- 37.

-16- On the Activities Questionnaire, Keough reported that she

was able to perform most activities of daily living, including

shopping, housework, running errands, and participating in an

exercise program. Id. at 244-46. In addition, she reported that

she spends approximately 12 hours per day sitting, albeit with a

lot of stretching, and that she spends about one hour each day

standing, usually in 10 minute intervals. Id. at 245. In the

section of the Questionnaire that asked her to describe her

typical day, Keough explained that in the morning she spends

about one hour using her computer to manage her finances and

correspond with friends and family, and in the evening spends

between 3 and 3.5 hours reading the paper and sorting through her

mail, before returning to her computer for additional

correspondences and, occasionally, to play computer games. Id.

at 246.

As requested by Liberty Life, D r . Trujillo, Keough submitted

updated medical information in July 2002, including office notes,

a Restrictions form and a Functional Capacities form. Id. at

258-268. In her office note from January 2 , 2002, D r . Trujillo

indicated that Keough was “doing very well” after bypass surgery

for a blocked artery in her left leg, and that she was

-17- “ambulating more,” and is “pain free with ambulation and

exercise.” Id. at 261. In fact, Keough was “walking without any

pain” and was exercising again at the gym. Id. Moreover,

according to D r . Trujillo, Keough had recently seen D r . Oram and

he too was pleased with her progress. Id. Finally, D r . Trujillo

noted that Keough had no chest pain or shortness of breath, that

her energy level was good, and that she generally felt “great”

and was exercising regularly. Id.

Keough was also seen by D r . Trujillo for a physical

examination on June 3 , 2002. Id. at 265-68. D r . Trujillo again

reported that Keough “was still exercising regularly,” had

increased energy as a result of her thyroid medication and no

pain from walking. Id. at 265. Then, on July 2 1 , 2002, D r .

Trujillo indicated on a Functional Capacities form that Keough

had no restrictions on her ability to drive or engage in

repetitive motions, but that she could not bend, squat, kneel,

climb, push, or pull. Id. at 260. On the same form, D r .

Trujillo opined that Keough could “never” return to work, and

could only sit for about 4 hours each day (up to 1/3 of the time)

and stand and walk for about one hour each day. Id. at 260.

Likewise, on the Restrictions form she completed the same day,

-18- Dr. Trujillo noted that Keough’s estimated return to work date

was “none.” Id. at 259.

In August 2002, D r . Oram, who was treating Keough for her

peripheral vascular disease, responded to Liberty Life’s request

and submitted treatment records, but did not complete the

Restrictions form or the Functional Capacities form. Id. at 270-

85. In his notes, D r . Oram indicated that he had seen Keough in

June 2001, and at that visit discussed her atherosclerotic

disease at length. Id. at 273. D r . Oram reviewed Keough’s April

1 7 , 2001 angiogram with her, explained the various treatment

options, and recommended that she try to walk as much as

possible. Id. When D r . Oram saw Keough again, on August 2 7 ,

2001, they discussed bypass surgery on her left leg, but she

elected to delay the surgery until October 2001. Id. at 274.

Finally, on October 2 3 , 2001, D r . Oram performed a “left peroneal

in situ bypass graft” on Keough’s left leg.10 Id. at 278. In a

10 A peroneal in situ bypass graft is a surgical procedure performed on the lateral side of the lower leg by first removing a portion of a healthy blood vessel from the leg, called a graft, and then sewing or “grafting” one end of the healthy blood vessel to the artery above the blocked area and the other end to the artery below the blocked area. The goal of this procedure is to increase blood flow to the lower leg and foot. See Stedman’s Medical Dictionary 2 2 4 , 788 (25th ed. 1990).

-19- November 1 9 , 2001 post-operative visit to D r . Oram’s office,

Keough reported that she was walking much better than she had

been two weeks earlier and, moreover, had no complaints about her

right leg. Id. at 282. More than six months later, on July 8 ,

2002, Brian Fisher, P.A.C., a physician’s assistant in D r . Oram’s

office, saw Keough for a follow-up visit. Id. at 285. At that

appointment, Keough told Fisher that she was “doing a lot of

walking,” and going to “The Works, doing 2 to 2.5 mph for 25

minutes,” only stopping because she wanted to go on to other

machines. Id. Keough had “no complaints of claudication.” Id.

In his assessment, Fisher noted that Keough’s left leg had an

“improved status” and that her right leg was “stable.” Id. He

encouraged her to continue walking and told her that they would

see her again in one year. Id. D r . Oram agreed with this

assessment and treatment plan. Id.

Liberty Life also received records from Keough’s

cardiologist, D r . Jacuch. Id. at 287-91. According to a January

3 1 , 2002 office note, D r . Jacuch indicated that Keough looked and

felt well, and she told him that she was exercising “every other

day.” Id. at 290. At that time, Keough denied any chest pain

and had “improvement in her previous symptoms of leg claudication

-20- as she underwent her bypass procedure in the lower left

extremity” in October 2001. Id. On the Functional Capacities

form dated August 2 7 , 2002, D r . Jacuch indicated that Keough

could sit frequently (between 1/3 and 2/3 of the time), and

stand, walk, squat, bend, kneel, climb, and drive occasionally

(up to 1/3 of the time), but had no restrictions on repetitive

motions or lifting less than 10 pounds. Id. at 288. Similarly,

on the Restrictions form he indicated that Keough was “cardiac

stable,” but deferred to D r . Oram as to her estimated return to

work date. Id. at 289.

On September 1 0 , 2002, after collecting updated medical

records, an independent registered nurse, Marilee Clark, R.N.,

reviewed Keough’s file for Liberty Life to determine if she was

disabled from her own or any occupation. Id. at 286. Clark

found that although Keough had progressed well, and was cardiac

stable, it would be necessary for D r . Oram to address Keough’s

restrictions and limitations impacting her return to work, or

order a functional capacities exam to determine her actual work

capacity. Id. Clark then opined that she “would question

[whether Keough would be] able to sustain a totally sedentary

position due to the need for her to be up and about to promote

-21- circulation.” Id.

Liberty Life then referred Keough’s case to a vocational

counselor for a transferable skills analysis (“TSA”) and a labor

market survey (“LMS”). Id. at 292-97. The vocational counselor

contacted D r . Oram, provided him with D r . Jacuch’s August 2 7 ,

2002 Functional Capacities form, and asked him if he agreed with

Dr. Jacuch’s assessment. Id. at 297. She expressly requested

that D r . Oram respond and provide objective medical documentation

by October 2 , 2002 if he did not agree with D r . Jacuch, and

informed him that his failure to respond by this date would be

construed as agreement with D r . Jacuch. Id. D r . Oram did not

respond to this request and Liberty Life thus assumed he

concurred with D r . Jacuch’s assessment.

On October 1 6 , 2002, Liberty Life wrote to Keough to inform

her that based on a review of the medical and vocational evidence

submitted through September 2002, she no longer met the

definition of “Total Disability” because, at that time, based on

her education, work history, and transferable skills, there were

three occupations Keough would be able to perform. Id. at 301-

05. Liberty Life thus terminated her LTD benefits. Id. at 301.

In support of its decision, Liberty Life cited to documentation

-22- received from D r . Trujillo, D r , Jacuch, and D r . Oram, as well as

Keough’s May 1 7 , 2002 Activities Questionnaire and the findings

of the vocational counselor. Specifically, Liberty Life found

that D r . Trujillo’s office records from January 2002 through July

2002 were “inconsistent with the limitations she has placed on

[Keough’s] physical abilities” and indicated that it was “unclear

how she arrived at these conclusions.” Id. at 302. With respect

to the documentation provided by D r . Oram on August 2 1 , 2002,

Liberty Life found that D r . Oram did not complete the

Restrictions or Functional Capacities forms that were sent to

him, and did not otherwise indicate any restrictions or

limitations on Keough’s functional abilities. Id. at 302-03.

Moreover, a July 8 , 2002 office visit note from Brian Fisher, a

physician’s assistant in D r . Oram’s office, indicated that

Keough’s left leg had improved after the surgery, her right leg

was stable, and that he encouraged her to continue walking. Id.

at 302. Fisher and D r . Oram agreed that they would see Keough in

one year. Id. In his August 2 7 , 2002 assessment, D r . Jacuch

indicated that Keough had no restrictions on repetitive movements

of her wrist, elbow, shoulder, or ankle, and no restrictions on

lifting less than 10 lbs. Id. at 303. He further indicated that

-23- she could frequently sit, push, reach, grasp, and lift between 10

and 20 pounds. Id.

Liberty Life found that based on her May 1 7 , 2002 Activities

Questionnaire, Keough was able to perform her daily activities,

including housework, shopping, running errands, and participating

in a regular exercise program. Id. Finally, Liberty Life

referred Keough’s claim to a vocational counselor. The counselor

performed a Transferable Skills Analysis (“TSA”) and a Labor

Market Survey. Based on her analysis of Keough’s medical

information and her education, work history, and transferable

skills, she concluded that Keough was qualified to work as a

Computer Support Specialist, a Management/Data Communications

Analyst, and an Internal Auditor/Accountant. Id. at 304.

Liberty Life thus determined that Keough did not meet the

definition of “Disability” from any occupation as defined in the

Plan. As a result, her LTD benefits were terminated as of

October 1 7 , 2002.

D. Keough’s Appeal

By letter dated November 2 1 , 2002, Keough appealed Liberty

Life’s decision to terminate her LTD benefits. Admin R. 306-15.

With her 10-page appeal letter, Keough forwarded additional

-24- medical documentation.11 In her letter, Keough thoroughly

documented her subjective feelings of pain and attempted to

clarify and explain the statements of her physicians contained in

the medical records. See id. at 306. She also indicated that

she suffered from physical and mental fatigue and an inability to

concentrate. See id. at 307. Keough noted that she had recently

suffered a knee injury and had aggravated a prior injury in her

“upper right arm muscle” and a “right wrist and thumb” injury

from writing and typing her “appeal document.” Id. at 306.

Finally, she reported that she suffered a “new strain injury to

the trapezoidal muscle in [her] shoulder blade.” Id.

Keough also indicated in her appeal letter that in July

11 These materials included (i) the office notes from her October 2 4 , 2002 visit with D r . Trujillo; (ii) an October 2 9 , 2002 letter of support from D r . Trujillo; (iii) a November 1 1 , 2002 letter of support from D r . Oram; (iv) the records from her October 1 6 , 2002 visit to the Wentworth Douglass Hospital emergency room for pain in her right knee; (v) the results of her October 2 3 , 2002 stress test (along with her own summary of that test, titled “What Really Happened”);(vi) the records from her four 2001 visits with D r . Mitchell Kalter, who diagnosed her with and treated her for deQuervain’s tenosynovitis; (vii) notes from her occupational therapists from sessions for treatment of deQuervain’s in July and August 2001; (viii) Emergency Room Visit summary reports for several bladder infections; and (ix) notes from urologist D r . Roger Evans who treated Keough for her bladder infections.

-25- 2001, D r . Trujillo referred her to D r . Mitchell Kalter because

she had been experiencing pain in her right hand for two months.

Id. at 334. D r . Kalter diagnosed Keough with deQuervain’s

tenosynvitis in her right wrist.12 Id. He treated her with

corticosteriod injections and recommended a splint, occupational

therapy, and rehabilitation. Id. D r . Kalter saw Keough again in

August 2001 and noted that she was “significantly improved with

conservative management,” and by September 2001, the triggering

in her thumb was no longer bothering her. Id. at 335-36.

Finally, in October 2001 D r . Kalter reported that Keough was “ so

minimally symptomatic,” that the deQuervain’s was “essentially

resolved.” Id. at 337.

Liberty Life then referred Keough’s appeal to D r . John

Holbrook, M.D., a physician board certified in internal medicine,

for an independent evaluation. Id. at 375-82. He reviewed

Keough’s entire file, which included the new documentation

submitted with her appeal. Specifically, D r . Holbrook determined

that as of August, 2002, Keough’s cardiologist, D r . Jacuch opined

12 “DeQuervain’s tenosynovitis,” also called “deQuervain’s disease,” is fibrosis of the sheath of a tendon of the thumb. Steadman’s Medical Dictionary 446 (25th ed. 1990). -26- that she “possesses significant retained physical functional

capacity” and was able to “sit, push, grasp, lift 10 to 20 pounds

on a frequent basis” as well as “walk, squat, bend, kneel, climb,

drive, and pull on an occasional basis.” Id. at 376. Noting

that D r . Jacuch’s opinions were supported by the results of

cardiac testing, D r . Holbrook determined that there was “no

evidence that Keough’s physical functional capacity is limited by

cardiac symptoms precluding sedentary activity.” Id. Likewise,

Dr. Holbrook found that Keough’s hypercholesterolemia and

hypothyroidism had been adequately treated and there was no

evidence in the medical file that either of these conditions

would cause an impairment precluding sedentary work. Id.

Dr. Holbrook next noted that in his November 1 1 , 2002

letter, D r . Oram indicated that Keough’s peripheral vascular

disease was not a “major difficulty” for her and that her file

included multiple descriptions of her activity that depict a

physical functional capacity that surpasses sedentary. Id. He

further noted that Keough’s own description of her ability to

vacuum and clean bathrooms suggested a capacity to perform, at

the very least, sedentary work. Id.

After acknowledging Keough’s own description of severe

-27- limitations in her activities based on fatigue and pain from her

multiple diagnoses, D r . Holbrook noted that “other independent

observations and reports of her physical functional capacity and

ability to sit and walk contradict [Keough’s] self-reported

limitations.” Id. at 377. This, he determined, suggested a

“significant degree of symptom magnification.” Id. Furthermore,

Dr. Holbrook found that D r . Trujillo’s reports of Keough’s

physical functional capacity were inconsistent with her own

description from several months earlier, yet the file contained

“no interval description of [Keough’s] condition worsening.” Id.

Next, D r . Holbrook determined that there was evidence in the

record that Keough had never mentioned her inability to

concentrate to any of her physicians, nor had they ever

recognized this problem or included it in their diagnostic lists.

Id. Finally, D r . Holbrook found that Keough had been

successfully treated for deQuervain’s tenosynovitis by D r . Kalter

in 2001, and that this condition did not appear again as an issue

until October 2002. Id. He opined that if the problem had been

severe, Keough would have been referred back to D r . Kalter or to

another orthopedic surgeon. Id. He thus concluded that Keough’s

problem with deQuervain’s tenosynovitis was time-limited and

-28- successfully treated, and did not rise to the level of causing

impairment from sedentary work. Id.

On the basis of his evaluation of Keough’s medical file, D r .

Holbrook made the following recommendations:

1 . The diagnoses of coronary artery disease, hypothyroidism, carotid atherosclerosis, and peripheral vascular disease are certain. The diagnosis of GERD is uncertain. 2 . [Keough’s] medical care appears to meet all the standards of good medical care.

3 . The preponderance of the evidence in the medical file indicates that [Keough] has recovered from coronary artery disease, hypothyroidism, and peripheral vascular disease on the basis of recent medical and/or surgical treatment such that she has adequate physical functional capacity for full time sedentary work.

4 . There is no indication in the medical file that GERD or carotid disease ever produced symptoms that limited [Keough’s] physical functional capacity.

5 . There in no indication in the medical file that [Keough] has other diseases that significantly limit her physical functional capacity to a degree that would limit her ability to perform full-time sedentary work.

Id. at 375.

On March 6, 2003, after considering the additional evidence

submitted with Keough’s appeal and D r . Holbrook’s assessment and

recommendations, Liberty Life upheld its October 1 6 , 2002

decision to terminate her LTD benefits. Id. at 387. Liberty

-29- Life concluded that “the totality of medical and vocational

documentation reviewed does not substantiate that M s . Keough is

disabled from performing other occupations within her vocational

capacity.” Id. In this letter, Liberty Life first detailed the

relevant Plan provisions and provided a complete history of

Keough’s case, including the TSA and labor market survey

conducted by the vocational counselor, as well as D r . Holbrook’s

findings. See id. at 388-92. It then explained that despite

Keough’s reports of pain and fatigue, the medical and clinical

evidence in her file did not establish that any of her conditions

are of the “nature and severity which would prevent her from

performing the sedentary alternative occupations” identified by

the vocational consultant. Id. at 393. Notably, Liberty Life

pointed out that each of these occupations would allow Keough to

change positions throughout the day, as needed. Id. Her

administrative rights to review exhausted, Keough commenced this

suit.

STANDARD OF REVIEW

The parties’ initial dispute is over the appropriate

standard of review. When the denial of benefits is challenged

-30- under ERISA, § 1132(a)(1)(B), “the standard of review depends

largely upon whether ‘the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or 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

benefit plan clearly grants the plan administrator discretionary

authority, a deferential “arbitrary and capricious” or “abuse of

discretion” standard of review is mandated.13 See id.; see also

Terry v . Bayer Corp.,

8 , 37 (1st Cir. 1998). This

standard means that “the administrator’s decision will be upheld

if it is reasoned and supported by substantial evidence in the

record.” Vlass v . Raytheon Employees Disability Tr.,

7 , 30 (2001)(internal quotations omitted); see also Cook, 320

F.3d at 19 (in determining if a plan administrator’s decision was

reasonable, the court looks to the record as a whole: that

evidence that was before the administrator when he made the

decision being reviewed). As such, “[r]easoned denials of

13 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 , 17 n.7 (1st Cir. 2003).

-31- benefits that are supported by substantial evidence will survive

review under this standard.” Doyle v . Paul Revere Life Ins. Co.,

8 1 , 184 (1st Cir. 1998). Substantial evidence means

evidence that is “reasonably sufficient to support a conclusion,”

and the presence of contradictory evidence “does not, in itself,

make the administrator’s decision arbitrary.” Vlass, 244 F.3d at

30. Finally, in reviewing a decision to terminate benefits, “a

court is not to substitute its judgment for that of the

[decision-maker].” Terry,

(internal quotations

omitted).

Keough concedes, as she must, that the Plan Administrator,

Liberty Life, is vested with the discretionary authority to

construe the terms of the Plan and to make benefits

determinations.14 Keough argues, however, that I must apply a

heightened standard of review because Liberty Life operated under

a conflict of interest. She asserts that a “glaring conflict of

interest clearly exists” because her employer, Liberty Mutual,

the Plan’s sponsor and the entity that paid for her disability

14 In fact, the clear and express grant discretionary authority appears in both the Plan, see Admin. R. at 2 3 , and in the supporting Summary Plan Description. See Admin. R. at 3 9 . -32- benefits, is affiliated with Liberty Life, the Plan’s underwriter

and administrator. I disagree. The First Circuit has instructed

that “[t]o affect the standard of review, . . . a conflict of

interest must be real. A chimerical, imagined or conjectural

conflict will not strip the [plan administrator’s] determination

of the deference that would otherwise be due.” Leahy, 315 F.3d

at 16 (citing Doyle,

8 4 ) . It is no more than mere

conjecture to allege that a conflict exists “simply because an

award of benefits would come from the same entity that is

responsible for determining eligibility for those benefits.”

Robinson v . Unum Life Ins. C o . of Am., N o . Civ. 02-6-B,

, at *5 (D.N.H. Mar. 1 2 , 2003); see also Smith v . Fortis

Benefits Ins. Co., N o . Civ. 02-55-B,

, at *4

(D.N.H. Mar. 6, 2003)(finding no actual conflict where insurer

served both as plan administrator deciding claims and employer

paying out claims). Without more, this general assumption does

not support Keough’s conclusion that Liberty Life was improperly

motivated.

Here, the only other evidence that Keough has produced to

bolster her theory that Liberty Life was improperly motivated

when it terminated her LTD benefits is unpersuasive. Keough

-33- argues initially that because this Plan was employer, rather than

employee, funded, Liberty was “biased” in its handling of claims

because it was “essentially paying out of pocket” for Keough’s

LTD benefits. This argument is unavailing for two reasons.

First, in Doyle, the First Circuit recognized that although such

an arrangement may suggest a conflict, it indicated that the

problem is “not as serious as might appear at first blush.”

8 1 , 184 (1st Cir. 1998). The court explained that the

existence of “an important competing motive: having a benefit

plan to please employees, not to result in the employer’s bad

reputation” operated as a countervailing motivation on Plan

Administrators to review claims with an even hand.

Second,

this Plan is not employer funded. The full cost of long term

disability coverage is paid by the employees with after-tax

dollars. See Admin. R. at 3 0 .

Next, she relies heavily on the fact that her job was

eliminated in January 2001 and on an email from Deneen DeCost at

Liberty Life to Michael Bisson at Liberty Mutual, in which DeCost

wrote that any effort to return Keough to her former position was

-34- “fruitless” and that Liberty Mutual did not want her back.15 Id.

at 200. From this, Keough reasons that Liberty Life made the

decision to terminate her benefits as soon as the initial 18-

month benefit period concluded. She also suggests that in

evaluating her claim for LTD benefits in the “any occupation”

period, Liberty Life failed to consider “alternative pieces of

evidence” from her doctors and “conveniently ignored” her

inability to sit for long periods of time. Aside from these

unsubstantiated allegations, however, Keough offers no evidence,

documentary or testimonial, to support her theory. This evidence

is simply insufficient to demonstrate the existence of a

conflict. See Leahy, 315 F.3d at 1 6 .

Finding no conflict of interest, I must apply an arbitrary

and capricious standard of review, and proceed to ensure that the

termination of LTD benefits was not “objectively unreasonable in

15 This excerpt of the email tells only part of the story. First, DeCost wrote to Bisson that because Keough’s job had been eliminated, “any effort to return her to her former position is fruitless, and “from what I gather from both parties, [Keough] would never go back and [Liberty Mutual does not] want her back.” Admin R. at 200. In his response to DeCost’s email, Bisson wrote that even though Keough would not be returning to her job at Liberty Mutual, “we still need to evaluate her disability based on being disabled from her prior job to her disability for the own occupation period.” Id.

-35- light of the available evidence.” Pari-Fasano v . ITT Hartford

Life and Accident Ins. Co.,

(1st Cir. 2000). I

hold that it was not.

ANALYSIS

Keough claims that Liberty Life’s determination that she no

longer met the definition of “Total Disabiity,” and its

subsequent termination of her LTD benefits was “arbitrary and

capricious.” Pl.’s Mot. for Summ. J. at 1 4 . (Doc. N o . 1 3 ) . In

support of her position, Keough makes two arguments. First, she

asserts that because there were no material changes in her health

status, either before or after Liberty Life terminated her

benefits, the decision to terminate was necessarily “arbitrary

and capricious.” Id. at 14-17. Second, she argues that Liberty

Life did not have sufficient evidence to make a reasonable

eligibility determination because it did not consult all the

information reasonably available to i t . Id. at 17-19.

To support her first argument, Keough claims that Liberty

Life disregarded D r . Trujillo’s and D r . Oram’s assessments that

she could not return to work, likewise disregarded her subjective

-36- account of her own medical problems, and failed to give

controlling weight to the opinions of her treating physicians

that supported her position on appeal. Keough charges that the

available medical evidence was clear and uncontroverted, such

that a reasonable review of this evidence could lead only to the

conclusion that in October 2002, she remained “totally disabled”

and unable to perform even sedentary work. This argument is

unavailing.

Here, a careful review of the record reveals that it is

neither clear nor uncontroverted. Rather, the record is capable

of “supporting competing inferences” as to both the improvements

in Keough’s health status and her ability to return to work.

Leahy, 315 F.3d at 1 9 . Unfortunately for Keough, that conflict

is insufficient to satisfy her burden. Id. Under an “arbitrary

and capricious” standard of review, the essential question is not

which side I believe is right, but whether Liberty Life had

substantial evidentiary grounds to reasonably terminate Keough’s

disability benefits. See Matias-Corea v . Pfizer, Inc.,

, 12 (1st Cir. 2003); Brigham v . Sun Life of Canada,

2 , 85 (1st Cir. 2003). I therefore reject Keough’s position on

this point.

-37- An additional flaw in this argument, however, is that

Liberty Life was not required to demonstrate a material change in

her health immediately prior to the decision to terminate her

benefits. Although Keough relies in part on Cook v . Liberty Life

Assurance Co.,

(1st Cir. 2003) for support, this

reliance is misplaced. Cook does not, as Keough seems to

contend, stand for the proposition that a plan administrator’s

decision to terminate disability benefits is “arbitrary and

capricious” when the available evidence does not demonstrate any

material change in the participant’s health. Rather, in Cook,

the First Circuit concluded that the insurer’s decision to

terminate Cook’s disability benefits was “arbitrary and

capricious” because in so doing, it rejected the unwavering

opinion of her treating physician that she was “totally disabled”

and “should be kept out of work indefinitely” without developing

“any contradictory medical evidence in the record to support its

decision to reject Cook’s evidence.” Cook,

3 . Cook

is thus inapposite where, as here, the file is replete with

contradictory medical evidence and reasonable medical

professionals could, and did, disagree.

Keough’s second argument, that Liberty Life did not have

-38- sufficient information to reasonably deny her benefits, is

equally unavailing. Here, Keough first claims that Liberty Life

“summarily disregarded” her subjective descriptions of her own

medical problems, including her inability to concentrate. This

is an inaccurate description of Liberty Life’s analysis. In his

review of her file, D r . Holbrook specifically considered how

Keough described her own inability to concentrate, and recognized

this testimonial as a potential complication of cardiac bypass

surgery. He also noted, however, that there was no record that

Keough had ever mentioned this problem to any of her physicians

and that none of Keough’s physicians ever recognized this problem

or included it in their diagnostic lists. Finally, D r . Holbrook

pointed out that Keough’s ability to describe her various medical

conditions over many pages of typewritten text contradicted her

description of this problem. Liberty Life did not, therefore

“summarily disregard” her subjective claim of an impairment.

Rather, Liberty Life reasonably accepted D r . Holbrook’s opinion

that Keough’s claim of a disabling inability to concentrate was

not credible.

Keough next alleges that Liberty Life failed to give

controlling weight to those opinions of her treating physicians

-39- that supported her appeal and that it ignored D r . Oram’s November

1 1 , 2002 letter. Again, Keough is incorrect. Faced with sharply

conflicting medical evidence, Liberty Life reasonably accepted

the opinions of the vocational counselor and D r . Holbrook

regarding her ability to return to work, rather than Keough’s

contrary view and the inconsistent opinions of her treating

physicians.

Moreover, D r . Oram’s November 1 1 , 2002 letter was in fact

included in the medical records reviewed by D r . Holbrook, and he

made specific reference to the conclusions advanced by D r . Oram

in that letter.16 In that letter D r . Oram stated, somewhat

inconsistently, that Keough had some “numbness after sitting in a

chair for only five minutes” but that “the issue of vascular

insufficiency” was not a “major difficulty” for her. He did not

16 Liberty Life did not consider D r . Oram’s assessment during the initial “any occupation” eligibility determination because D r . Oram failed to respond to at least one request for medical records. Specifically, when the vocational counselor contacted him on September 1 8 , 2002, she provided him with D r . Jacuch’s assessment of Keough’s physical functional capacity, asked him to provide his own impressions, and put him on notice that if she did not hear from him by October 2 , 2002, Liberty Life would assume he concurred with D r . Jacuch’s assessment. D r . Oram did not respond to this request, and Liberty Life thus proceeded on the assumption that he agreed with D r . Jacuch.

-40- indicate, however, whether he concurred with D r . Jacuch’s August

2 7 , 2002 Functional Capacities form, but instead deferred to D r .

Trujillo’s assessment of Keough’s limitations.

Furthermore, the medical opinions offered by D r . Trujillo

and D r . Oram were by no means conclusive. For example, on March

1 9 , 2001, D r . Trujillo indicated that Keough could sit for

approximately four hours with breaks; in May 2001 she retreated

from this assessment and reported that Keough could only sit for

no more than twenty minutes at a time, but by July 2 1 , 2002, D r .

Trujillo again opined that Keough could sit for up to 1/3 of the

workday. Similarly, although there is no mention in D r . Oram’s

records of Keough ever complaining about an inability to sit for

more than a few minutes at a time, and in fact, a June 2001

report from his office indicated that she did not have “rest pain

in either leg,” in his November 1 1 , 2002 letter D r . Oram

nevertheless inexplicably concluded that she could not sit for

more than five minutes without experiencing numbness in her legs.

This assessment was contradicted by D r . Jacuch’s August 2 7 , 2002

Functional Capacities form in which he indicated that Keough

could sit, push, reach, and grasp frequently (between 1/3 and 2/3

of the time), and could stand, walk, squat, bend, kneel, climb,

-41- and drive occasionally (up to 1/3 of the time). D r . Jacuch

further indicated that by August 2002, Keough was cardiac stable.

In view of this evidence, it was not unreasonable for Liberty

Life to credit D r . Jacuch and D r . Holbrook’s opinions and

conclude that the medical conditions described in Keough’s appeal

letter did not prevent her from returning to work. See Leahy,

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

conflicted, the deference due to a plan administrator may be

especially great).

Finally, as additional evidence that Liberty Life’s decision

to terminate her benefits was “arbitrary and capricious,” Keough

offers that neither the October 1 6 , 2002 letter terminating her

LTD benefits nor the March 6, 2003 letter upholding that decision

mention that she was receiving Social Security benefits, which

can be relevant to an insurer’s disability determination.

Although a determination of disability by the Social Security

Administration can be relevant evidence, see Gannon v .

Metropolitan Life Ins. Co.,

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

the mere fact of a Social Security disability award is not

binding on insurers and “should not be given controlling weight

except perhaps in the rare case in which the statutory criteria

-42- are identical to the criteria set forth in the insurance plan.”

Pari-Fasano,

. Keough had not presented any

evidence that hers is one of the rare cases in which the

eligibility criteria for Social Security benefits is identical to

the criteria outlined in the Plan. See Matias-Correa,

(noting that claimant was required to satisfy the plan’s

definition of total disability rather than the Social Security

Administration’s definition). Furthermore, although a related

Social Security benefits decision may be of some value to a plan

administrator’s eligibility determination, particularly in cases

in which the Administration makes specific findings, the award

letter in Keough’s case only provided information regarding the

payment of benefits, but no information describing how the

Administration reached its eligibility determination. See

Gannon, 360 F.3d at 215. It was therefore not unreasonable for

Liberty Life to reach a different conclusion regarding Keough’s

eligibility for disability benefits than the decision reached by

the Social Security Administration.

As Plan Administrator, Liberty Life was authorized to weigh

conflicting evidence and to determine the weight accorded to the

opinions of Keough’s physicians. See Vlass, 244 F.3d at 3 2 ; see

-43- also Black & Decker Disability Plan v . Nord,

2 2 , 834

(2003)(noting that courts may not require plan administrators to

accord special deference to the opinions of an employee’s

treating physicians). Accordingly, Liberty Life was acting

within its discretion when it relied on the opinion of D r .

Holbrook, even though he did not examine Keough and even though

he based his opinion solely on a review of the file. See Gannon,

360 F.3d at 214-15; Matias-Corea,

2 . It was also

reasonable for Liberty Life to rely on the information Keough

provided in her Activities questionnaire in which she indicated

that she spends approximately 12 hours a day sitting, albeit with

a lot of stretching. Keough’s own description of her typical day

is consistent with, and buttressed by, evaluations provided by

Dr. Jacuch in August 2002, and not entirely inconsistent with

some of the opinions provided by D r . Oram and D r . Trujillo.

Given Liberty Life’s authority under the Plan to use its

discretion, it was for Liberty Life alone to determine exactly

how to measure the relative strength of these contradictory

opinions.

I therefore find that Liberty Life’s determination that

Keough was not “totally disabled” and its decision to terminate

-44- her LTD benefits rests on substantial evidence and was an

appropriate exercise of its discretion as Plan Administrator.

See Gannon, 360 F.3d at 216; Leahy, 315 F.3d at 1 9 .

CONCLUSION

For all of the foregoing reasons I grant Liberty Life’s

motion for summary judgment (Doc. N o . 9 ) and deny Keough’s cross

motion for summary judgment (Doc. N o . 1 4 ) . The clerk shall enter

judgment accordingly.

SO ORDERED.

Paul Barbadoro District Judge

February 2 4 , 2005

cc: Eugene A . DiMariano, Esq. William D. Pandolph, Esq.

-45-