Davey v . Life Ins. Co. of N.A. CV-05-126-PB 06/14/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donna Davey

v. Case N o . 05-cv-126-PB Opinion N o .

Life Insurance Co. of North America

MEMORANDUM AND ORDER

Donna Davey 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 owed to her under the terms of her former

employer’s long-term disability plan (the “LTD Plan”). The LTD

Plan is insured by defendant Life Insurance Company of North

America (“LINA”). Davey alleges that LINA’s decision to

terminate her long-term disability benefits was unreasonable and

not supported by medical evidence. Before me are the parties’

motions for judgment on the Administrative Record. Because I

find that LINA’s decision to deny Davey long-term disability

benefits was reasonable, I grant LINA’s motion and deny Davey’s

motion. I. BACKGROUND1

Donna Davey worked for CIGNA HealthCare of New Hampshire

(“CIGNA”) as a Quality Management Coordinator until June 4 , 2001.

Admin. R. at 8 7 . As a regular employee, she was eligible to

participate in CIGNA’s short-term disability (“STD”) and long-

term disability (“LTD”) plans.

at 5 . At various times,

Davey suffered from fibromyalgia, osteoarthritis, irritable bowel

syndrome, depression, anxiety, post-traumatic stress disorder

(“PTSD”) and other ailments. Pl.’s Mot. for J. on the Admin. R.

(“Pl.’s Mot.”) at 2-3.

A. The LTD Plan

CIGNA sponsors a group insurance policy that provides LTD

benefits to eligible employees who are determined to be

“[d]isabled.” Admin. R. at 780. The LTD Plan is administered by

CIGNA Group Insurance (“CGI”) and insured by LINA, a CIGNA

company.2

at 2 1 , 777. Eligibility for LTD benefits is

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

1 The background facts are set forth in the parties’ Joint Statement of Material Facts (Doc. N o . 1 4 ) . The parties did not file a statement of disputed facts. See LR 9.4(b). 2 LINA does not insure CIGNA’s short-term disability plan. Admin. R. at 2 1 .

-2- months, an employee is considered disabled i f , “solely because of

Injury or Sickness, he or she is unable to perform all the

material duties of his or her Regular Occupation or a Qualified

Alternative.” Id. at 780. In the second phase, after collecting

benefit payments for 18 continuous months, an employee is

considered disabled only if he or she is “unable to perform all

the material duties of any occupation for which he or she i s , or

may reasonably become, qualified based on education, training or

experience.”3 Id.

The LTD Plan expressly designates LINA as the “Plan

fiduciary under federal law for the review of claims for

benefits.” Id. at 794. In that role, LINA has “the authority,

in its discretion, to interpret the terms of the Plan documents,

to decide questions of eligibility for coverage or benefits under

the Plan, and to make any related findings of fact.” Id.

The LTD Plan specifies that long-term disability benefits

will cease if LINA determines that the employee is no longer

disabled. Id. at 792. In addition, if the disability is “caused

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

-3- by, or contributed to by,” mental illness or certain other

enumerated conditions, there is a lifetime maximum of 24 monthly

disability payments. Id. at 790.

B. Davey’s employment history

In 1994, Davey began working as an administrative assistant

for HealthSource New Hampshire, Inc., the predecessor to CIGNA

HealthCare of New Hampshire.4 Admin. R. at 9 0 , 218. In 1997,

Davey took the position of Quality Management Coordinator. Id.

at 218. Her job functions included providing administrative and

professional support to the Quality Management Program and

various committees, maintaining databases, collaborating on

National Committee for Quality Assurance (“NCQA”) compliance

auditing, pulling data for various reports, and maintaining NCQA

compliance documentation. Id. at 431. This position required

her to spend approximately 4% of her time standing, 8% walking,

43% sitting, 2% lifting and 43% keying. Id. at 9 2 .

4 Before working for HealthSource, Davey was employed as a counselor (1990-93), travel coordinator (1989-90), tax examiner (1989) and marketing coordinator (1983-86). Admin. R. at 218.

-4- C. Davey’s medical history5

Davey was first diagnosed with fibromyalgia6 by her primary

care physician, D r . Maria Davila, around September 1995. Admin.

R. at 327. A rheumatologist confirmed the diagnosis in March

1996. Id. at 407. Davey’s fibromyalgia was treated with

medication and exercise. Id. at 326-27, 407. In July 1996,

Davey told her primary care physician that she was suffering from

fatigue and was seeing a counselor for depression. Id. at 326.

Davey first saw D r . Hoke Shirley, a rheumatologist, in March

1998. Id. at 374. D r . Shirley thought Davey met the criteria

for fibromyalgia and recommended medication and exercise. Id. at

375. Davey continued to see D r . Shirley regularly in 1998. At

various times, Davey reported that she was doing poorly, had

stopped exercising, and was not taking recommended medications

because of their side effects. Id. at 371-73. She continued to

work full-time. Id. at 372.

5 The details of some of Davey’s appointments have been omitted because they do not impact the analysis of her claims. 6 Fibromyalgia is “[a] syndrome of chronic pain of musculoskeletal origin but uncertain cause.” Stedman’s Medical Dictionary 671 (27th ed. 2000). Diagnostic criteria include “pain on both sides of the body, both above and below the waist” and “point tenderness in at least 11 of 18 specified sites.” Id.

-5- In February 1999, D r . Shirley noted that Davey continued to

do poorly, though she was still working full-time. Id. at 368.

He thought she was doing worse “because of the current stressors

in her job place and her depression surrounding it.” Id. He

recommended that she see a psychiatrist to address her problems

with depression. Id. Around the same time, Davey told her

primary care physician that she was having problems with her

memory. Id. at 321.

In March 1999, D r . Shirley noted that Davey was having

difficulty maintaining full-time work. Id. at 366. He

recommended “a temporary leave of absence” from work so she could

“get things under control” and incorporate an exercise program

into her schedule. Id. By letter dated March 9, 1999, D r .

Shirley informed Davey’s employer that she needed a “one month

medical leave of absence . . . so that she can more completely

attend to her musculoskeletal condition from a physical

therapeutic and medical aspect.” Id. at 367.

Davey first saw D r . Megan Carman, a psychiatrist, on March

2 5 , 1999 for depression. Id. at 312. D r . Carman noted that

Davey was sleeping poorly, her energy was low and her

concentration was poor. Id. D r . Carman found her mood to be

-6- “extremely anxious and dysphoric.” Id. at 313. She recommended

changes to Davey’s medications and noted that Davey did “not

appear capable of working due to her depression if not her

fibromyalgia.” Id. at 314.

Davey saw D r . Shirley again on April 6, 1999. Id. at 365.

She reported that changes in her medication had caused her to

develop severe constipation, which had worsened her back and hip

pain. Id. D r . Shirley concluded that “[g]iven the degree of

pain and fatigue and depression she has and the associated

symptoms . . . [he] would extend her temporary disability for

another two months.” Id.

On May 2 1 , 1999, Davey saw D r . Carman and reported that “she

[did] not feel that she could perform her work duties in any

manner whatsoever, as she is not even able to get things done

around the house.” Id. at 310. She also felt that “the

depression [was] more disabling than the fibromyalgia.” Id. Dr.

Carman found Davey to be “quite depressed” and continued her

“medical leave from work for another four weeks.” Id. On June

4 , 1999, Davey reported some improvement in her “energy level and

motivation” and felt that her fibromyalgia was “under fairly good

control.” Id. at 309. D r . Carman thought Davey’s medications

-7- may have been “causing some of her daytime sluggishness” and

changed some of the dosages. Id. She also recommended continued

individual therapy with Mark Ciocca, Ph.D. Id. D r . Carman

thought Davey did not “appear even ready to return to work part-

time quite yet.” Id.

On June 1 5 , 1999, Davey told D r . Carman that she was feeling

much better and felt that she could return to work part-time.

Id. at 308. Davey returned to work on July 5 , 1999. Id. at 9 1 .

Later that month, D r . Shirley reported that Davey was “back at

work full-time” and “appear[ed] to be doing pretty well.” Id. at

363. He attributed this to her medications and exercise. Id.

He felt that although she could not perform her duties as well as

she used t o , she “could continue her job on a regular basis right

now.” Id.

When Davey saw D r . Shirley again in January 2000, he noted

that Davey was “doing better” but had a “lack of mental acuity

and some sleep problems.” Id. at 361. She had also “fallen off

[her] exercise program.” Id.

On January 2 8 , 2000, Davey was involved in a motor vehicle

accident and subsequently reported to her primary care physician

that she was having headaches. Id. at 318. In June 2000, Davey

-8- requested a referral to a neurologist because of ongoing

headaches. Id.

In July 2000, Davey saw Drs. Shirley and Carman. Id. at

360, 304. She reported that she did not feel “quite as attentive

as she used to be,” id. at 3 0 4 , and “mentally [could] not keep up

with all the things she ha[d] to do at work,” id. at 360. D r .

Carman thought Davey was having “some re-emergence of her

depressive symptoms, though certainly not as bad as when she

initially sought treatment.” Id. at 304.

Davey saw D r . Daniel Botsford, a neurologist, on September

2 5 , 2000. Id. at 381. She said her “problem with

distractibility and cognition” began seven years prior when she

“experienced a searing pain in her head and back followed by a

right body paresthesia that persisted over several hours.” Id.

An MRI taken at that time was deemed normal. Id. D r . Botsford

recommended further testing and started her on Exelon

(rivastigmine). Id. at 382. The results of a subsequent

electroencephalography (“EEG”) were “somewhat problematic to

interpret,” though the “dominant portion of the record [was]

normal.” Id. at 378.

-9- On September 2 9 , 2000, Davey told D r . Shirley that she had a

“lack of acuity of thought” and memory problems, though she was

still working full-time. Id. at 359. He noted that working was

“taking a toll on her” and that she was too fatigued from work to

comply with her exercise program.7 Id.

On November 2 , 2000, Davey told D r . Carman that her stress

at work was “extremely high” and her impaired concentration and

memory were “interfer[ing] with her work performance.” Id. at

302. D r . Carman discontinued Davey’s Exelon prescription because

it was causing her “significant constipation” and recommended

that she begin taking Ritalin. Id.

On January 4 , 2001, Davey told D r . Carman that she was not

doing well and had not filled the Ritalin prescription. Id. at

301. Davey reported that “her fibromyalgia [had] been quite

painful recently,” she felt tired all of the time and was having

difficulty getting her work done. Id. She also reported that

she had gotten a poor review at work. Id. D r . Carman noted that

Davey was “not doing very well but she [was] also not following

through on recommendations.” Id. D r . Carman substituted

7 Davey did not see D r . Shirley (or any other doctor) again for her fibromyalgia until June 2 1 , 2001. Admin. R. at 338.

-10- Provigil (modafinil) for Ritalin to help with Davey’s “attention

span and alertness.” Id. She also suggested that Davey return

to therapy and consider taking another medical leave from work if

she did not improve. Id.

On February 1 , 2001, Davey told D r . Carman that she had

tried taking Provigil but it had caused “significant nausea and

headaches.” Id. at 300. Davey reported having difficulty

getting her work done and was concerned about losing her job.

Id. In March 2001, Davey began seeing Susan L . Randlett, MSW for

therapy and Eye Movement Desensitization and Reprocessing

(“EMDR”) treatment “to resolve past trauma issues related to her

childhood and previous marriage.” Id. at 242. Davey saw

Randlett through August 2001. Id. at 246-67.

On April 1 2 , 2001, Davey told D r . Carman that although work

was still stressful, she had recently gotten “a much better

review” and was applying for a raise. Id. at 299. She also

reported that she was having a lot of pain from osteoarthritis

and fibromyalgia and that she felt depressed if she missed a dose

of her medication. Id. D r . Carman thought Davey was “more

overwhelmed by her physical problems than her emotional state”

-11- and encouraged her to see D r . Shirley regarding her pain level.

Id.

D. Short-term disability benefits claim

Davey’s last day of work at CIGNA was June 4 , 2001. Admin.

R. 8 3 , 8 7 . On June 8 , she saw D r . Davila for problems with

constipation. Id. at 316. D r . Davila referred Davey to a

gastroenterologist, who she saw on July 1 7 , 2001. Id. at 289.

On June 1 2 , 2001, Davey saw D r . Carman and reported that she

was “having a lot of problems with nausea and abdominal cramping

and constipation” and felt “lousy both physically and mentally.”

Id. at 298. D r . Carman thought Davey needed “a medical leave of

absence [from] work” and recommended that she stay out of work

until July 1 , 2001. Id.

Davey submitted her claim for STD benefits on or around June

1 5 , 2001. Id. at 8 6 . She reported that she was unable to work

because of gastrointestinal (“GI”) problems and depression. Id.

at 8 4 , 8 9 . Because her claim was based in part on depression, it

was referred to CIGNA Behavioral Health (“CBH”), the claims

administrator for behavioral health STD claims. Id. at 2 4 , 4 3 ,

93.

-12- Dr. Carman submitted a Provider Functional Capabilities

Statement (“PFCS”) in June 2001 in support of Davey’s claim for

STD benefits. Id. at 100. She recommended that Davey remain out

of work until July 1 , 2001, and not return full-time until July

1 5 , 2001.

On June 2 9 , 2001, CBH approved Davey’s STD benefits from

June 5 until July 8 , 2001. Id. at 4 6 . Shortly thereafter, her

benefits were extended to July 3 1 , 2001. Id. at 4 9 .

In July 2001, D r . Carman recommended that Davey begin a

partial hospitalization program to address her increased

depression. Id. at 5 0 , 2 5 2 , 269. On July 2 4 , 2001, Randlett,

Davey’s therapist, wrote to D r . Carman concerning Davey’s failure

to attend her therapy and partial hospitalization appointments

the previous day. Id. at 268. Randlett noted that she had been

completing Davey’s disability reports and wondered if she was

“enabling [Davey] to some degree.” Id.

Davey saw D r . Carman again on July 2 6 , 2001, and reported

feeling anxious about an upcoming court appearance. Id. at 296.

Dr. Carman noted that Davey was “sabotaging her treatment in

various ways” and was not ready to return to work. Id. Dr.

Carman recommended extending Davey’s medical leave until

-13- September 1 , 2001. Id. In a PFCS completed July 2 7 , 2001, D r .

Carman noted that Davey’s PTSD had been aggravated. Id. at 114.

CBH extended Davey’s STD benefits to September 3 , 2001. Id. at

51.

On or about August 2 2 , 2001, Davey was told that her

employer would not allow her to return to work on a part-time

basis and would start the process of replacing her if she did not

return full-time on September 4 . Id. at 5 6 . On August 2 8 , Davey

told D r . Carman that she was doing poorly and continued to have

“significant GI pain.” Id. at 294. D r . Carman noted that Davey

was “not ready to return to work” and thought they should “take

more aggressive measures with her medication.” Id.

On September 4 , 2001, Davey’s STD benefits were extended for

an additional two weeks and a doctor-to-doctor disability review

was scheduled with D r . Carman. Id. at 5 9 . On September 6, Davey

told CBH that her symptoms had not improved and her doctor wanted

her to remain out of work until mid-October. Id. at 6 0 .

On September 1 4 , 2001, D r . John Luehr, a CBH medical

consultant, discussed Davey’s case with D r . Carman. Id. at 6 1 .

Dr. Carman reported that she thought Davey’s primary disability

was psychiatric and her “current somatic complaints are more

-14- stomach/GI than fibromyalgia.” Id. D r . Luehr concluded that

Davey met the criteria for ongoing STD benefits and could not

return to work for another four to six weeks. Id. Davey’s STD

benefits were extended to October 1 4 , 2001. Id.

Davey saw D r . Carman again on September 28 and October 1 2 ,

2001. Id. at 2 9 2 , 293. D r . Carman noted that Davey was still

depressed and did not feel capable of returning to work on a

full-time basis. Id. at 293. In her October 1 2 , 2001 PFCS, D r .

Carman estimated that Davey would be able to return to work on

November 1 5 , 2001.

CBH extended Davey’s STD benefits on October 2 5 , 2001, after

her case was discussed at a panel review with D r . William Hague.

Id. at 6 5 . CBH then scheduled a doctor-to-doctor review with D r .

Ciocca, who was seeing Davey for individual therapy, after D r .

Carman failed to respond to CBH’s requests for a review. Id.

On October 3 0 , 2001, D r . Murphy informed Davey’s primary

care physician that “the majority of [Davey’s] GI symptoms ha[d]

abated” after changes were made to her anti-inflammatory

medications. Id. at 376.

On November 1 , 2001, CBH consultant Kathleen Papatola,

Ph.D., discussed Davey’s case with D r . Ciocca. Id. at 6 6 .

-15- According to D r . Papatola, D r . Ciocca thought that Davey’s level

of impairment was due more to medical issues than mental illness.

Id. He also allegedly reported that she was not “100%

psychiatrically disabled” and could go back to work part-time.

Id. D r . Ciocca later disputed D r . Papatola’s characterization of

his statements. Id. at 207-08.

Following a November 1 , 2001 panel review, CBH determined

that Davey no longer met the criteria for behavioral health

disability benefits because her inability to work full-time was

due to medical issues and not mental health issues. Id. at 6 6 .

By letter dated November 1 , 2001, CBH informed Davey that she was

no longer “totally disabled from performing [her] job due to a

psychiatric disability.” Id. at 162. Davey was also told that

she could appeal this determination and she could file a

“medical” STD claim with CIGNA Disability Management Solutions

(“DMS”). Id. at 6 7 .

Davey appealed the termination of her STD benefits on

November 2 0 , 2001. Id. at 173. Davey stated that she had been

experiencing “a recurrence of a Major Depressive Disorder since

May of 2001” and she believed her symptoms rendered her disabled.

Id. CBH upheld its denial following another panel review with

-16- Dr. Hague and other CBH staff. Id. at 7 0 . In a letter dated

December 4 , 2001, CBH informed Davey of its denial of her appeal

and her right to pursue a second-level appeal. Id. at 174.

Davey filed a second appeal of the termination of her STD

benefits on December 2 0 , 2001. Id. at 175. Davey stated that

she had “suffered from Fibromyalgia for several years” and was

experiencing “both increased and additional symptoms,” including

“clinical depression.” Id. She contended that she was eligible

for both STD and LTD benefits due to her medical and psychiatric

symptoms, whether considered separately or combined. Id.

On or about January 1 0 , 2002, D r . Ciocca submitted an

affidavit to CBH in which he disputed D r . Papatola’s account of

their November 1 , 2001 doctor-to-doctor review. Id. at 207-08.

Dr. Ciocca stated that Davey was “significantly impaired” on

November 1 , 2001, “owing to symptoms of Major Depression,

Posttraumatic Stress Disorder, and Fibromyalgia.” Id. at 207.

He also stated that he “did not clear [Davey] for return to

work.” Id. at 208. Based on D r . Ciocca’s affidavit and his

subsequent conversation with D r . Hague on January 2 2 , CBH

overturned its denial of Davey’s STD benefits. Id. at 78-79.

Accordingly, Davey was paid STD benefits for the period between

-17- November 1 , 2001 and December 5 , 2001 (the start date for LTD

benefits). Id. at 7 9 .

E . Long-term disability benefits claim

On October 2 9 , 2001, Lynette Gibson sent Davey a letter

advising her that CIGNA Group Insurance (“CGI”) had begun its

evaluation of her LTD claim.8 Admin. R. at 157. Davey was asked

to provide certain information in support of her claim by

November 9, 2001. Id.

On November 6, 2001, CGI sent Davey a letter informing her

that because her STD benefits were terminated effective November

1 , she had not satisfied the waiting period for LTD benefits.

Id. at 172-72A. On January 3 , 2002, Davey’s attorney appealed

the denial of Davey’s claim for LTD benefits, “pending an appeal

of [Davey’s] STD denial.” Id. at 191. After CGH overturned the

denial of her STD benefits on January 2 2 , 2002, Davey returned

CGI’s disability questionnaire and submitted medical records9 to

support her LTD benefits claim. Id. at 214.

8 As noted above, CGI administered the LTD Plan, which was insured by LINA. 9 The records included office notes of Drs. Shirley, Carman, Ciocca, Davila, Botsford and Murphy. Admin. R. at 225-408.

-18- By letter dated February 2 5 , 2002, CGI informed Davey that

her LTD claim was being reviewed. Id. at 418. On March 7 , 2002,

Edward Zevola, R N , who was reviewing Davey’s LTD claim, discussed

her case with D r . Ciocca. Id. at 443. D r . Ciocca indicated that

Davey was not doing well and could only perform “two hours of

sustained activity before needing a significant rest period.”

Id. D r . Ciocca estimated that Davey would not be able to return

to work for at least three months “due to ongoing treatment and

medication adjustments.” Id.

In March 2002, D r . Shirley completed a “current work status”

form in which he indicated that Davey could “barely” perform

part-time work. Id. at 450-51. He also indicated that she could

sit for three hours per day, but only for one hour at a time.

Id. at 451. D r . Carman also completed an Assessment of

Psychiatric Function form on which she indicated that Davey would

not be able to work full-time “in [the] next 2 years if ever” due

to “[t]reatment resistant depression complicated by chronic

physical problems.” Id. at 467-68.

On March 1 8 , 2002, Zevola summarized his review of Davey’s

LTD claim as follows: “[Davey] has been diagnosed with major

depression and fibromyalgia. Her symptoms are consistent with

-19- both diagnoses. . . . It appears that [Davey’s] primary diagnosis

is depression although all providers have [provided]

restrictions. Based on the medical documentation, it appears

that the occupational restrictions are supported by the medical

documentation.” Id. at 168-69, 473. Based on Zevola’s review,

Davey’s LTD claim was approved on March 2 5 , 2002. Id. at 169.

CGI sent Davey a letter informing her that her LTD benefits had

been approved, subject to the LTD Plan’s mental illness

limitation of 24 monthly payments. Id. at 476-77.

Davey saw D r . Shirley on April 2 6 , 2002, and reported that

she continued to suffer from “fogginess of thought” and “intense

fatigue.” Id. at 524. D r . Shirly noted that Davey had shown

“very limited improvement, if any, on a very comprehensive

multidisciplinary program for management of her soft tissue

pain.” Id. On the same day, he completed an Attending

Physician’s Statement of Disability in which he reported that

Davey’s maximum level of physical ability was “sedentary at most”

and she would “never” be able to go back to work. Id. at 491-92.

By letter dated January 6, 2003, CGI informed Davey that her

LTD claim was being reviewed because she was approaching the “18

month point,” at which time she would be considered disabled only

-20- if she was unable to perform the essential duties of any

occupation for which she was reasonably qualified. Id. at 508.

The letter also stated that Davey would only be eligible for

benefits through December 4 , 2003, because of the 24-month mental

illness limitation. Id. at 509. Davey was asked to complete a

Disability Questionnaire, see id. at 525-28, and CGI requested

updated records from D r . Carman and D r . Shirley. Id. at 5 1 0 ,

513.

In response, D r . Carman submitted office notes from her

appointments with Davey on May 3 , July 2 , and October 3 , 2002.

Id. at 515-20. She also noted that Davey’s depression was in

“partial remission” and her activities were “[p]rimarily limited

by physical pain and easy fatiguability [and] not by depression

at this point.” Id. at 516-17. D r . Shirley submitted office

notes for his appointments with Davey on April 26 and October 2 3 ,

2002. Id. at 521-24. He reported that Davey had diffuse pain

that was always present as well as fatigue and sleep

disturbances. Id. at 521. In response to the question, “What

prevents him or her from performing, on a full-time basis,”

“sedentary work,” “light work” and “medium work,” D r . Shirley

crossed out “light work” and “medium work” and wrote “fatigue,

-21- diffuse pain.” Id. at 522.

Davey saw D r . Carman on January 2 3 , 2003 and reported that

“her pain [had] been fairly significant over the last three

months.” Id. at 585. D r . Carman noted that Davey had

osteoarthritis in addition to fibromyalgia. Id. D r . Carman

reported that Davey’s “mood clearly hinges on how she is doing

physically. It does not appear to be a failure of her

psychotropics at this point.” Id. She did not make any changes

to Davey’s medications. Id.

On March 2 4 , 2003, Davey saw D r . Shirley because she was

“having a lot of increased pain in the left lateral hip girdle

region.” Id. at 624. She also “complain[ed] vehemently about a

lack of acuity of thought.” Id. D r . Shirley gave her an

injection in the “left trochanteric bursa” to address the hip

pain. Id. Davey saw D r . Shirley again on April 2 1 , 2003, and

said she felt about the same. Id. at 623. She reported having a

lot of fatigue and difficulty concentrating. Id.

On April 2 4 , 2003, Davey’s LTD claim was reviewed by D r .

Neilson, a consulting physician for CGI. Id. at 169. D r .

Neilson thought that Davey’s cognitive symptoms were related to

depression and not the “fog” that can result from fibromyalgia.

-22- Id. He recommended that Davey undergo a functional capacity

evaluation (“FCE”) to determine if she could perform a sedentary

occupation. Id.

The same day, Davey saw D r . Carman and reported being “very

stressed” because her LTD benefits would be ending in June or

December and she would also lose her medical insurance at that

time. Id. at 726. D r . Carman noted that Davey was “still

clearly unable to return to work due to both her physical and

psychiatric illnesses.” Id.

On June 6, 2003, Davey underwent an FCE at HealthSouth

Sports Medicine and Rehabilitation (“HealthSouth”). Id. at 550.

Davey was not able to complete some of the FCE tests due to

fatigue and pain. Id. at 555. The report concluded that Davey

was functioning “below the sedentary physical demand category for

an 8 hour work day with a maximum lift of 6 lbs., frequent

positional changes from standing to walking, and constant

sitting.” Id. at 554. The report also noted that a “higher

capacity may have been possible due to self limiting behavior,

minimal musculoskeletal changes, and inconsistencies with

isometric testing.” Id. Under “physical demand category”, the

“Sedentary Work” box was checked. Id.

-23- On June 1 7 , 2003, D r . Carman submitted additional medical

records to C G I , including notes from Davey’s office visits in

2002 and 2003. Id. at 581.

On June 2 0 , 2003, CGI asked D r . Shirley to clarify whether

he thought that Davey could perform sedentary work and to comment

on the FCE. Id. at 597. D r . Shirley responded that he did not

think Davey had “a physical work capacity at any capacity level

at a part or full time basis.” Id. at 603. On July 1 8 , 2003,

CGI requested that D r . Shirley provide “any objective medical

information available regarding your treatment of [Davey] that

you feel refutes the functional capacity testing completed and

supports your statement that she cannot maintain sedentary

activity for more than an hour or so.” Id. at 607. After seeing

Davey on July 2 1 , 2003, see id. at 6 2 1 , D r . Shirley responded

that the FCE was consistent with his “feeling clinically that

[Davey] does not have a full-time capacity for work in any

physical capacity currently.” Id. at 776. He interpreted the

FCE to mean that “even though [Davey] might have a sedentary work

capacity at times, she clearly cannot function on a full-time

basis.” Id. In August 2003, CGI requested additional medical

records and D r . Shirley submitted notes from Davey’s October 2 3 ,

-24- 2002 through July 2 1 , 2003 office visits. Id. at 620.

On August 2 2 , 2003, Davey spoke with Lynette Gibson at CGI

and told her that she was going back to her psychiatrist in order

to “prove [her] disability.” Id. at 626.

By letter dated September 4 , 2003, CGI informed Davey that

she was no longer disabled under the terms of the LTD Plan. Id.

at 627-29. Davey was paid LTD benefits through October 4 , 2003.

Id. at 675.

F. Davey’s appeal

Davey saw Drs. Carman and Shirley in October 2003 and asked

them to write letters in support of her LTD claim. Admin. R. at

653, 725. D r . Carman noted that Davey “appear[ed] to be having a

relapse of her depression” due in part from increased stress.

Id. at 725. Both doctors concluded that Davey was unable to work

in any capacity. Id. at 653, 725. D r . Shirley also sent a

letter to CGI on October 2 9 , 2003, contending that he had

provided medical documentation of Davey’s fibromyalgia and her

inability to work at a sedentary capacity. Id. at 637-38.

By letter dated December 1 2 , 2003, Davey appealed the

termination of her LTD benefits. Id. at 650-51. In support of

her appeal, Davey submitted a letter from D r . Carman dated

-25- October 2 8 , 2003, and office notes from Davey’s appointments with

Dr. Shirley through October 2 9 , 2003. Id. at 652-59.

On December 1 8 , 2003, Davey saw D r . Carman, who planned to

leave her practice in February 2004.10 Id. at 724. D r . Carman

reported that Davey remained “disabled by a combination of her

fibromyalgia and depression.” Id.

CGI acknowledged receipt of Davey’s appeal on January 1 2 ,

2004 and gave Davey the opportunity to submit additional

information in support of her appeal. Id. at 673-74. On

February 2 0 , 2004, Davey’s attorney submitted an October 2 7 , 2003

letter from Davey in which she contested the termination of her

LTD benefits. Id. at 679-82.

CGI then referred Davey’s claim to two independent examiners

for peer reviews. Id. at 684-88. On or about March 1 7 , 2004,

CGI received a peer review report from D r . Barry Kern, who is

board-certified in occupational medicine. Id. at 690-96. To

prepare his report, D r . Kern reviewed Davey’s medical records and

10 Davey’s psychiatric care was transferred to D r . Joseph Sack, who worked in the same practice. Admin. R. at 724. D r . Sack began seeing Davey in February 2004 but did not want to be involved in her LTD appeal. Id. at 722-23.

-26- spoke with D r . Shirley on March 8 , 2004. Id. at 694. D r . Kern

concluded:

[Davey's] diagnosis is fibromyalgia. She has had this for at least 8 years. Her symptoms are pain in her joints and fogginess of thinking. . . . The treating doctor and the patient have stated that her symptoms have worsened but there are no clinical objective findings to support this. She states she has fogginess of thinking but there have been no objective measures to verify this symptom. . . .

The medical documentation does not support [Davey's] inability to work full time at a sedentary position during the time period of October 4 , 2003 through present. The patient has had the diagnosis of fibromyalgia for at least 8 years and worked at least five of those years after the diagnosis. She reported stressors at work and this was the reason that her psychiatrist initially took her off of work. She did not even go to her treating rheumatologist to determine if her fibromyalgia was significant enough to preclude work. . . . Discussion with the treating rheumatologist indicates that he feels that the patient cannot do any meaningful work, even sedentary work. This is based entirely on his clinical judgment. In my opinion, the objective findings in the available medical records do not support this degree of limitation. There is no documentation presented that would indicate [Davey] would be limited from performing her regular fulltime [sic] work activities at this time. There was no change in her clinical objective findings prior to the time she went out of work compared to the time after she went out of work. The treating physician’s decision regarding functional impairment appears to be based on subjective complaints and her failure to improve on her medical regimen.

-27- Id. at 695.

On or about March 2 2 , 2004, CGI received a second report

from I . Jack Abramson, M.D., a board-certified psychiatrist. Id.

at 697-700. D r . Abramson reviewed the available medical records,

including D r . Carman’s October 2 8 , 2003 letter. Id. at 698. He

also spoke with D r . Shirley and attempted to contact D r . Carman

at her former office.11 Id. at 699. D r . Abramson was asked to

comment on Davey’s ability to function on a continuing basis

since October 4 , 2003, and he found the medical documentation to

be “significantly lacking” in that regard. Id. D r . Abramson

concluded: “In terms of [Davey’s] psychiatric symptoms, the

documentation and clinical information provided is inadequate to

support her inability to function in a work setting on a

continuous basis since October 4 , 2003.” Id.

On April 7 , 2004, CGI informed Davey that it was affirming

the termination of her LTD benefits based in part on the reports

of Drs. Kern and Abramson. Id. at 707-08.

11 D r . Sack, who started seeing Davey after D r . Carman left the practice, was unwilling to comment on issues related to Davey’s LTD claim. Admin. R. at 699.

-28- On May 6, 2004, Davey’s attorney submitted an April 2 1 , 2004

letter from D r . Shirley in which he disagreed with D r . Kern’s

report. Id. at 712-14. CGI responded that D r . Shirley’s letter

was not supported by medical records and was not sufficient for a

“voluntary appeal.” Id. at 715. On June 2 9 , 2004, Davey’s

attorney submitted copies of D r . Carman’s office notes between

1999 and 2003, as well as D r . Joseph Sack’s office notes from

February and April 2004. Id. at 719-56. Davey’s attorney also

indicated that he was trying to obtain an updated report from D r .

Carman. Id. at 719-20.

On July 1 9 , 2004, CGI informed Davey that it was accepting

her voluntary appeal. Id. at 757-60. Davey was given the

opportunity to submit additional information to support her LTD

claim. Id. at 757-58. On August 1 2 , 2004, Davey’s attorney

reported that he was still waiting for a report from D r . Carman,

which he had requested three times. Id. at 762.

On October 6, 2004, CGI informed Davey that the additional

information submitted by her attorney had been reviewed and the

decision to deny her further LTD benefits had been upheld. Id.

at 767-69. Davey’s claim had been reviewed by CGI’s Associate

Medical Directors, who concluded that the medical information on

-29- appeal was “not compelling to support an impairment to preclude

[Davey] from performing her occupation.” Id. at 768. The letter

also noted that although Davey “had complaints of fibromyalgia

and depression,” CGI had “not been provided with medical

information that supports a severity in her conditions which

would preclude [Davey] from performing a sedentary occupation.”

Id. at 769. CGI also informed Davey that she had exhausted all

administrative levels of appeal. Id. On October 2 8 , 2004,

Davey’s attorney wrote to the Appeals Claim Examiner at CGI and

enclosed a copy of D r . Shirley’s July 2 1 , 2003 letter. Id. at

774. He also indicated that he was still waiting for a report

from D r . Carman. Id.

This action followed.

II. STANDARD OF REVIEW

When a denial of benefits is challenged under ERISA, §

1132(a)(1)(B), and the “plan administrator has discretion to

determine an applicant’s eligibility for and entitlement to

benefits, the administrator’s decision must be upheld unless it

is ‘arbitrary, capricious, or an abuse of discretion.’” Gannon v .

-30- Metro. Life Ins. Co.,

1 1 , 212-13 (1st Cir. 2004)

(quoting Vlass v . Raytheon Employees Disability Trust,

7 , 29-30 (2001)); see Firestone Tire & Rubber C o . v . Bruch,

0 1 , 115 (1989). This standard means that “the

administrator’s decision must be upheld if it is reasoned and

supported by substantial evidence” in the record. Gannon, 360

F.3d at 213. Substantial evidence means evidence that is

“reasonably sufficient to support a conclusion,” and “the

existence of contradictory evidence does not, in itself, make the

administrator’s decision arbitrary.” Vlass, 244 F.3d at 3 0 .

Finally, in reviewing a decision to terminate benefits, “a court

is not to substitute its judgment for that of the decision-

maker.” Terry v . Bayer Corp.,

8 , 40 (1st Cir. 1998)

(quotation and brackets omitted).

III. ANALYSIS

Davey challenges both the decision to terminate her LTD

benefits and the procedure LINA followed to reach that decision.

Specifically, Davey argues that (1) there is no medical evidence

in the record to support the determination that she can work in a

sedentary capacity; (2) LINA inappropriately relied upon the

-31- opinion of its consulting physicians and failed to submit all of

Davey’s medical records to its medical advisor; and (3) the LTD

Plan’s 24-month mental illness limitation should not be applied

to her claim.12 I address each of her arguments in turn.

A. Medical evidence

First, Davey contends that the medical evidence does not

support LINA’s determination that she was capable of doing

sedentary work in September 2003, when her LTD benefits were

terminated. A careful review of the record reveals conflicting

evidence in this regard. In order to qualify for continued LTD

benefits, Davey had to be “unable to perform all the material

duties of any occupation” for which she was qualified. Admin. R.

at 780. D r . Carman and D r . Shirley were asked to provide updated

medical records in January 2003 to assist CGI in determining

12 Davey also claims that the initial decision to terminate her STD benefits was made in bad faith so that she could not qualify for LTD benefits. Pl.’s Mot. at 1 6 . However, LINA did not administer or insure Davey’s STD benefits and therefore is not the proper defendant against which to bring this claim. Furthermore, CBH ultimately paid Davey’s STD benefits in full and therefore she cannot state a claim under ERISA § 502(a)(1),

(a)(1). To the extent that Davey seeks compensatory or punitive damages based on her allegations of “bad faith,” see Am. Compl. at 6, such extracontractual damages are not recoverable under ERISA. See Drinkwater v . Metro. Life Ins. Co.,

2 1 , 825 (1st Cir. 1988).

-32- whether Davey met this criteria.

at 5 1 0 , 513. D r . Carman

responded that Davey’s depression was in “partial remission” and

that she was limited primarily by physical pain. Id. at 517.

Dr. Shirley responded that Davey suffered from diffuse pain,

fatigue and sleep disturbances. Id. at 521. His report

indicated that Davey could not perform “light” or “medium” work,

but was unclear as to whether she could perform sedentary work.

Id. at 522.

Davey underwent an FCE on June 6, 2003, to evaluate her

capacity to perform sedentary work. Id. at 554. The FCE report

noted that Davey “complained of low back pain with the maximum

floor to knuckle lift” and “complained of shoulder and neck pain

with the maximum knuckle to shoulder and shoulder to overhead

lifting.” Id. at 555. Other tests were not completed at Davey’s

request. Id. Although the report concluded that Davey was

functioning below the “sedentary physical demand category,” it

also noted that a “higher capacity may have been possible due to

self limiting behavior . . . and inconsistencies with isometric

testing.” Id. at 554. The “Sedentary Work” box under “physical

demand category” was also marked. Id.

-33- CGI then asked D r . Shirley to comment on the FCE and Davey’s

ability to perform sedentary work. Id. at 597. On July 2 1 ,

2003, D r . Shirley responded that the FCE was consistent with his

clinical “feeling” that Davey did not have the physical capacity

to work. Id. at 776. He interpreted the FCE to mean that “even

though [Davey] might have a sedentary work capacity at times, she

clearly cannot function on a full-time basis.” Id. In August

2003, D r . Shirley submitted office notes from Davey’s most recent

visits at CGI’s request. Id. at 620.

After Davey appealed the termination of her LTD benefits,

her claim was reviewed by two independent consultants, Drs. Kern

and Abramson. Id. at 6 9 1 , 698. Both examiners reviewed Davey’s

medical records and spoke with D r . Shirley. Id. at 6 9 4 , 699.

Dr. Shirley told D r . Kern that he did not think Davey could do

sedentary work. Id. at 695. D r . Kern thought that “the

objective findings in the available medical records [did] not

support this degree of limitation” and that D r . Shirley was

basing his conclusions on Davey’s “subjective complaints” and

“failure to improve on her medical regimen.” Id. D r . Abramson

thought the “documentation and clinical information” were

-34- “inadequate” to support a finding that Davey was unable to work.

Id. at 699.

Davey submitted additional medical records in June 2004 as

part of her voluntary appeal. Id. at 719-56. CGI’s Associate

Medical Directors reviewed Davey’s medical records and concluded

that they were “not compelling to support an impairment” that

would preclude Davey from performing a sedentary occupation. Id.

at 768.

Viewing the record as a whole, there is substantial evidence

to support LINA’s determination that Davey could perform

sedentary work in September 2003. In January 2003, D r . Carman

reported that Davey was primarily limited by physical pain and

not depression. Id. at 517. CGI then requested the FCE to

determine Davey’s physical capacity to work. Although the

results were somewhat equivocal, as LINA acknowledges, the

reliability of the test was limited by Davey’s failure to perform

all of the required tasks. CGI also relied upon the opinion of

its medical consultants, who reviewed Davey’s medical records and

spoke with her treating physicians. The consultants found

inadequate support for D r . Shirley’s opinion that Davey did not

-35- have the capacity to work in a sedentary position. Accordingly,

I conclude that LINA’s decision to terminate Davey’s LTD benefits

was reasonable and entitled to deference. See Gannon, 360 F.3d

at 213.

B. Procedure

Next, Davey argues that LINA improperly relied upon the

opinions of its consultants over the recommendations of her

treating physicians. Although plan administrators may not

“arbitrarily refuse to credit a claimant’s reliable evidence,

including the opinions of a treating physician,” they are not

required to “accord special weight to the opinions of a

claimant’s physician.” Black & Decker Disability Plan v . Nord,

2 2 , 834 (2003). Here, LINA did not arbitrarily

discredit D r . Shirley’s opinion but rather concluded that his

conclusions were not adequately supported by objective medical

evidence. See Admin. R. at 628-29, 707. The fact that D r .

Shirley did not agree with the opinions of LINA’s medical

consultants does not render LINA’s decision arbitrary or

capricious. See Gannon, 360 F.3d at 216 (“[I]n the presence of

conflicting evidence, it is entirely appropriate for a reviewing

-36- court to uphold the decision of the entity entitled to exercise

its discretion.”).

Davey also contends that LINA’s procedure was flawed because

it failed to provide all of her medical records to its

“psychiatric medical advisor.”13 Pl.’s Mot. at 1 8 . Davey’s

claim apparently arises from D r . Abramson’s comment in his March

2004 report that there was “no psychiatric documentation beyond a

letter from D r . Carman dated October 2 8 , 2003.” Admin. R. at

699. Davey submitted additional records from her office visits

with Drs. Carman and Sack, which were reviewed by CGI’s

Psychiatric Associate Medical Director as part of Davey’s

voluntary appeal. Id. at 767-69. Davey apparently contends that

LINA should have provided the additional records to D r . Abramson

for a second review instead of having a different consultant

review the records. This argument is without merit because ERISA

does not require the plan administrator to consult the same

medical advisor at different levels of appeal; indeed, the

regulations suggest that deference should not be given to a prior

13 It is not clear whether Davey is referring to D r . Abramson or the Psychiatric Associate Medical Director who reviewed Davey’s voluntary appeal. See Admin. R. at 768.

-37- adverse benefit determination. See

-

1(h)(3)(ii).

C. Mental illness limitation

Finally, Davey argues that LINA should be “estopped” from

applying the LTD Plan’s 24-month mental illness limitation to her

claim and that this provision violates the Americans with

Disabilities Act,

et seq. Davey’s LTD benefits

claim was initially approved subject to the 24-month mental

illness limitation because her primary diagnosis was depression.

Admin. R. at 476-77. However, Davey only received LTD benefits

for 22 months and the termination of her benefits was not based

on the mental illness provision. See id. at 627-29. Rather, as

discussed above, Davey’s benefits were terminated because LINA

determined that she was no longer disabled under the terms of the

LTD Plan. Id. at 629.

IV. CONCLUSION

For the foregoing reasons, I grant LINA’s motion for

judgment on the administrative record (Doc. N o . 16) and deny

Davey’s motion (Doc. N o . 1 5 ) . The clerk shall enter judgment

accordingly.

-38- SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 1 4 , 2006

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

-39-