Boyson v. Dartmouth Hitchcock, et a l . CV-09-119-PB 5/7/10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kristin L. Boyson

v. Case No. 09-cv-119-PB Opinion No.

Dartmouth Hitchcock Clinic and Hartford Life and Accident Insurance Company

MEMORANDUM AND ORDER

Kristin Boyson brings an Employee Retirement Income Security

Act ("ERISA") action to recover benefits allegedly owed to her

under the terms of a long-term disability policy provided by her

former employer, Dartmouth Hitchcock Clinic ("DHC") through

Hartford Life and Accident Insurance Company ("Hartford"). See

(a)(1)(B). Both Boyson and Hartford have moved

for judgment on the administrative record. Because I find that

Hartford's decision to deny Boyson's long-term disability

benefits was reasonable, I grant Hartford's motion and deny

Boyson's motion. I. BACKGROUND1

Kristen Boyson was hired by DHC as a Health Information Tech

II on January 17, 2000. Admin. R. at 991. As a DHC employee,

Boyson participated in its "Standard Healthcare Contract Group

Disability Plan," a long-term disability ("LTD") insurance policy

originally underwritten by Continental Casualty Company ("CNA")

and later purchased by Hartford.2 See i d . at 1226-98.

A. The LTD Policy

Hartford's LTD policy extends to all DHC employees who work

"full time," a minimum of 20 hours per week, for DHC. See Admin.

R. at 1245. Eligible employees fall into one of two classes:

Class 1, which extends to full-time PHD's, Presidents, CEOs, and

Senior Administrators only, and Class 2, which encompasses all

remaining employees. As a Health Information Tech, Boyson falls

1 The background facts are presented in detail in the parties' joint statement of material facts ("JSMF," Doc. No. 15) and summarized here. Defendants have also filed a separate statement of material facts in dispute. (See Doc. No. 16); LR 9.4(b). I have not considered defendants' additional disputed facts, as they do not affect my analysis.

2 Hartford entered into a stock purchase and administrative services agreement with CNA in 2003, through which it assumed all rights, duties and obligations of CNA with respect to the LTD policy at issue. (JSMF, Doc. No. 15, at 7.)

- 2 - into the latter of these two categories. See i d .; (JSMF, Doc.

N o . 15, at 1-2. )

Eligibility for LTD benefits for Class 2 employees under

Hartford's policy is divided into two phases. The first phase,

Hartford's so-called "own occupation period," covers an

Elimination Period of 180 days and the following 24 months. An

employee must be continuously disabled throughout the Elimination

Period, which begins on the day that she becomes disabled, before

she can receive benefits. In phase one, an employee is

considered "disabl[ed]" if she is "(1) continuously unable to

perform the Material and Substantial Duties of [her] Regular

Occupation and (2) not Gainfully Employed." Admin. R. at 1246

(emphasis added). The second phase, or "any occupation" period,

applies after the employee's monthly benefit has been payable for

24 months. An employee is considered "disabled" in phase two if

she is "(1) continuously unable to engage in any occupation for

which [she is] or become[s] gualified by education, training or

experience, and (2) not Gainfully Employed." I d . at 1246.

Hartford's policy is also subject to certain exclusions and

limitations. The policy does not cover, among other things,

disability beyond 24 months following the Elimination Period that

- 3 - is due to substance abuse, a mental disorder of any type, or a

disorder that "primarily manifests itself with an employee's

self-reported symptoms." See i d . at 1250. With respect to these

limitations and all other policy terms, "[t]he Administrator and

other Plan fiduciaries have discretionary authority to interpret

the terms of the Plan and to determine eligibility for and

entitlement to benefits in accordance with the plan." I d . at

1258. DHC is listed as the LTD plan administrator.3 I d . at

1258, 1281. Hartford, as a plan fiduciary, is granted the

authority to review and deny benefits claims. See i d . at 1259.

B. Boyson Applies for LTD Benefits

On March 20, 2002, Boyson broke her right leg in five places

and dislocated her right knee in a serious skiing accident, and

underwent emergency surgery. (Pl.'s Mem. in Supp. of Mot. for J.

on the Admin. R., Doc. No. 19-1, at 1); Admin. R. at 963-64.

3 Defendants argue that DHC has been improperly named as a defendant. However, DHC concedes in the parties' joint statement of material facts that it is the "Plan Administrator" of the LTD policy, and further acknowledges that "[t]he proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan." Terry v. Bayer Corp., 145 F .3d 28, 36 (1st Cir. 1998); (see JSMF, Doc. No. 15, at 1.) I note that defendants' argument appears to be without merit. I need not reach this issue, however, as I find in defendants' favor for other reasons.

- 4 - Boyson submitted a claim to CNA for LTD benefits on November 20,

2002, accompanied by an Attending Physician's Statement in which

her orthopedist. Dr. Douglas Goumas, indicated that Boyson had a

right tibial plateau fracture that reguired surgery and

rehabilitation. Dr. Goumas noted that Boyson could continue

working with some limitations, but should refrain from deep

sguatting for any long periods of time, and might "cont[inue] to

have pain sguatting" that would render her unable to return to

the same type of work. Admin. R. at 993-94. CNA acknowledged

Boyson's claim by letter on January 6, 2003 and conducted a

telephone interview with Boyson.

On March 13, 2003, CNA denied Boyson's claim for LTD

benefits on the basis of her medical records on file and the fact

that Dr. Goumas had released her to return to work full-time with

a 50 pound weight-lifting restriction in September 2002 .4 See

i d . at 912. Boyson reguested a written explanation of the

policy's long-term disability definition and a copy of Dr.

Goumas' assessment, which CNA provided. See i d . at 902.

C. Hartford Grants Benefits for the "Own Occupation" Period

4 Boyson did return to work part time from September 16, 2002 through October 15, 2002, but ceased working on October 16, 2002 with complaints of pain. Admin. R. at 909-13.

- 5 - On April 9, 2003, Dr. Goumas submitted a letter to CNA that

contradicted his previous determination that Boyson could return

to work. While Dr. Goumas acknowledged that he had previously

released Boyson to full-time work with some limitations, he found

upon review of the job description provided by DHC and further

discussion with Boyson that she could not, in fact, perform the

duties that her former position required. Admin. R. at 898. CNA

then contacted Boyson by letter on June 30, 2003 to communicate

its conclusion that she was unable to perform the duties of her

own occupation of Health Information Tech II, but that she

"[could] perform alternative work" as a receptionist, telephonic

customer service clerk, or cashier with a sit/stand option. The

letter confirmed that Boyson would remain eligible for benefits

for the 24 month "own occupation" period until September 15,

2004. I d . at 881-82. Boyson was informed that she, as a

claimant "who [was] disabled only from [her] own occupation," was

able to receive "a lump sum payment in lieu of monthly benefit

checks," but she declined to accept the payout offer. I d . at

129, 881-82 (emphasis added). She was also informed that

benefits would terminate at the culmination of the "own

occupation" period on September 15, 2004 unless "additional

- 6 - medical information was received that supported [the claim that

Boyson] was unable to perform alternative work at this time."

I d . at 12 0.

D. Hartford Extends Benefits into the "Any Occupation" Period

On August 24, 2004, Hartford received a letter from Dr.

Dennis Stepro, another of Boyson's treating orthopedists. Dr.

Stepro reported that Boyson would need to undergo surgery to

remove screws from her tibia, but that "she would be able to

perform full-time work which is primarily seated in nature, with

the flexibility to stand when needed, that does not reguire

lifting greater than 10 pounds . . . presuming there are no other

medical problems which cause her any physical impairment."

Admin. R. at 833. Following Boyson's surgery on September 3,

however. Dr. Stepro concluded that Boyson could not, in fact,

perform work of this nature, and issued a Health Status

Certificate on September 30, 2004 that listed Boyson as being

"permanently and totally disabled from work." I d . at 827-29.

Hartford noted on October 19, 2004 that Boyson's benefits had

been extended into the "any occupation" period while Hartford

continued to investigate her status. See i d . at 100.

E. Hartford Notifies Boyson that Her Benefits Will Be Terminated

- 7 - On October 26, 2004, Hartford faxed a letter to Dr. Stepro

that posed a series of questions regarding his evaluation of

Boyson's ability to return to work. Dr. Stepro failed to

respond. On November 1, 2004, Hartford referred Boyson's file to

the Medical Advisory Group ("MAG") for review and informed Dr.

Stepro that an Independent Peer Physician from MAG would contact

him for further discussion regarding Boyson's functional

abilities and limitations. See Admin. R. at 99, 810.

Boyson contacted Hartford on November 8, 2004 and indicated

that she had been hospitalized for attempted suicide. See i d . at

98. Hartford then referred her file to Diane Baumbach, a

Behavioral Health Case Manager ("BHCM") to determine whether

Boyson was disabled due to a mental/nervous condition. See i d .

at 97. Baumbach conducted a telephone interview with Boyson on

November 9, 2004, during which Boyson reported suicidal thoughts

and depression as a result of medications that were prescribed

following her accident. Boyson explained that her depression

began immediately after her accident, but that she was unaware

that she needed to report to Hartford regarding a potential

mental/nervous condition. See i d . at 94-96. Baumbach then faxed

a Functional Assessment Tool ("FAT") to each of Boyson's treating

physicians. See i d . at 785-802. On November 18, 2004, Hartford received a response from Dr.

Stepro. Dr. Stepro reiterated his previous conclusion that

Boyson was "not able to perform work, even in a totally sedentary

capacity." I d . at 803-804. In a separate response to Hartford's

request that Dr. Stepro complete a FAT, he declined to list

specific functional limitations, and instead concluded that

Boyson was "permanently and totally disabled." See i d . at 771.

Dr. Quentin Turnbull, Boyson's treating psychiatrist, also

responded to Hartford's FAT request, and noted that Boyson had

suffered from a mental/nervous condition during the last two

years that contributed to her physical impairment. See i d . at

7 67. Hartford then performed a "vocational assessment" and

determined that Boyson was "able to work based on her physical

condition only but is still disabled from her mental condition."

I d . at 77-80. A subsequent "functional assessment consultation"

concluded that the information provided " [did] support that

Boyson was disabled from a mental/nervous condition from [January

27, 2004] through [the current date]" and that Boyson was

unlikely to return to work in the next six months. The claims

note also indicated that Boyson's policy had a 24-month

limitation on benefits received due to a mental/nervous

condition. See i d . at 76; Section I.A, supra. On December 1, 2005, Hartford notified Boyson that her benefits would terminate

on January 31, 2006 pursuant to the end of this 24-month

mental/nervous condition period, and informed her that she had a

right to appeal its decision. I d . at 175-76. Hartford received

notice on February 8, 2005 that Boyson had been awarded Social

Security benefits. I d . at 732-40.5

F. Boyson Appeals Hartford's Decision

On January 3, 2006, Hartford received Boyson's written

request for appeal, which included a letter from Dr. Stepro

stating that she was "extremely unlikely . . . to return to

gainful employment" and "continue[d] to be permanently and

totally disabled." Boyson also included her own statement, which

cited her inability to walk without a cane or drive, along with

Dr. Stepro's most recent office notes and work release. I d . at

654. Having reviewed this information, Hartford contacted Boyson

5 I note that disability determinations made by the Social Security Administration may be considered, but are not binding on plan administrators making determinations under ERISA. Rossignol v. Liberty Life Assurance Co. of Boston,

(citing Pari-Fasano v. ITT Hartford Life & Acc. Ins. Co.,

(1st Cir. 2000)). While courts have, on occasion, cited contradictory social security determinations as evidence that a plan administrator's decision was arbitrary and capricious, see Metro. Life Ins. Co. v. Glenn, 128 S. C t . 2343, 2347 (2008), Boyson does not argue that Hartford's decision to deny her LTD benefits is inconsistent with the Social Security Administration's decision to grant her disability benefits.

- 10 - on January 1 , 2006 to inform her that her claim was approved

through January 31, 2006, and that a further liability

determination would be made following her meeting with Dr. Stepro

on January 24, 2006. See i d . at 59.

Hartford later contacted Boyson on June 2, 2006 to reguest

that she complete a Claimant Questionnaire and have each of her

treating physicians complete an Attending Physician's Statement.6

I d . at 605. That same day, Boyson informed Hartford that she

would soon be hospitalized for anorexia. Upon receipt of this

information, Hartford decided to "extend benefits, wait for

updated medicals and a completed claimant guestionnaire, and

follow up in 3 months for an update." (JSMF, Doc. No. 15, at 18

(citing Admin. R. at 51).)

On September 27, 2006 Boyson submitted her Claimant

Questionnaire, Dr. Stepro's completed Attending Physician's

Statement, and additional medical records from Dr. Stepro's

office. See Admin. R. at 583-88, 590-91, 597-602. A new office

note from Dr. Stepro dated September 21, 2006 reported that

6 Boyson's claim was presumably approved following her submission of documentation following her January 24, 2006 appointment with Dr. Stepro, as the record indicates that benefits were being extended at the time of Hartford's subseguent reguest for documentation in June 2006. (See JSMF, Doc. No. 15, at 17-18.)

- 11 - Boyson had developed chronic back pain as a result of working one

day a week as a demonstrator for Wal-Mart, which required her to

stand for six hours at a time with her weight entirely on her

left leg. See i d . at 594-95. Dr. Stepro's Attending Physician's

Statement reiterated his conclusion that Boyson was "permanently

disabled," as she was unable to stand, walk, sit, or drive for

any length of time, and unable to push or carry more than 10

pounds. See i d . at 590-91. Boyson's completed Claimant

Questionnaire listed these same restrictions, but reported that

she could help with laundry on the bottom floor of her apartment,

carry groceries up to the third floor, attend appointments, and

run short errands as needed. Boyson also noted that she had

taken a position handing out samples at Wal-Mart, but informed

Hartford that she "inten[ded] to quit this job due to difficulty

standing and difficulty driving long distance[s]." I d . at 583-

88, 575.

Hartford completed a functional assessment on October 9,

2006 on the basis of this documentation. While the claims note

conceded that Boyson continued to have "impairment to the right

knee," it noted that "it would appear that [Boyson] is able to

sit with option to change positions with minimal lifting," and

that appropriate work options should be considered. I d . at 45.

- 12 - Hartford then contacted Dr. Stepro to discuss these options. Dr.

Stepro refused to communicate with Hartford until he had seen

Boyson. See i d . at 39. On December 1, 2006, Boyson sent

Hartford a copy of Dr. Stepro's most recent office note, dated

November 21, 2006. The note concluded that Dr. Stepro "did not

think [that Boyson could] be gainfully employed" given her

chronic pain and fatigue. See i d . at 569-70.

G. Hartford Initiates Surveillance

Hartford referred Boyson's claim to its Special

Investigation Unit ("SIU") on March 26, 2007 for investigation

and an in-person interview. See i d . at 35, 567. On April 5,

2007, New England Risk Management initiated video surveillance of

Boyson, and obtained videotaped documentation of Boyson

conducting errands with her mother. The videotape showed Boyson

"bending into the motor vehicle several times and carrying two

twelve packs of soda [while] displaying no outward signs of

physical restriction or impairment." I d . at 561-66.

Investigator Barry Berger then contacted Boyson for an in-person

interview.

When Berger met with Boyson on May 30, 2007, Boyson

indicated that she was unaware that surveillance had been

conducted, but identified herself as the person in the video.

- 13 - I d . at 532. Boyson initially characterized the surveillance as

demonstrating her "normal level of activity," but later stated

that the video captured an unusual amount of activity. I d . at

533. Boyson explained that the video depicted her taking a short

walk to the drug store, and that she had ventured out to get food

stamps because she had limited time to respond to a letter from

the Department of Health and Human Services, and her mother, who

was visiting for the week from Florida, could drive her. Boyson

guestioned whether she was actually observed carrying two twelve-

packs of soda into her home, but later conceded that she had done

so when Berger re-played a portion of the videotape. See i d .

On August 31, 2007, Hartford sent the video, video summary,

interview transcript, statements about Boyson's disability, and

an estimation of Boyson's reserved functional abilities to each

of her treating physicians. Hartford provided its most recent

functional assessment, which concluded that Boyson "[was] capable

of physically performing in a full-time, sedentary-type

functional capacity [that] reguire[d] intermittent periods of

walking/standing and allow[ed] for full use of [her] upper

extremities" as long as she would be able to change body position

as needed, and would not be reguired to lift more than 10 pounds.

I d . at 160-69. Dr. Vijaya Upadrasta, Boyson's treating

- 14 - internist, and Christine Toulouse, his physician's assistant,

both agreed with Hartford's functional assessment. See i d . at

426, 430.

On September 19, 2007, Hartford referred Boyson's claim to

Reliable Review Service for review by independent physicians.

I d . at 414-15. On October 3, 2007, Dr. Marcus Goldman, an

independent psychiatrist, and Dr. William Andrews, an independent

orthopedist, both submitted their reports. After consulting with

Dr. Turnbull and reviewing Boyson's record. Dr. Goldman

determined that Boyson did not have any psychiatric restrictions

or limitations. See i d . at 410. Dr. Andrews similarly concluded

that "from an orthopedic perspective, [Boyson could] perform

sedentary duties." I d . at 413. Hartford conducted an

Employability Analysis on the basis of this review, which

identified eight sedentary, unskilled occupations that Boyson

could perform. I d . at 382.

H. Hartford Terminates Benefits; Boyson Appeals

On October 12, 2007, Hartford notified Boyson by letter that

her claim for LTD benefits had been terminated. I d . at 373-80.

Boyson reguested a copy of the video surveillance, and Boyson's

counsel submitted her reguest for appeal. I d . at 372, 368-69.

Hartford acknowledged Boyson's reguest, and submitted the

- 15 - relevant information from her claim file to counsel. I d . at 367.

Boyson's counsel submitted additional information in support

of her appeal on March 14 , 20 0 8 , and argued that Hartford had

failed to consider Boyson's fatigue, inability to concentrate,

and the side effects of her medications when it terminated her

LTD benefits. I d . at 248. Hartford acknowledged receipt of

Boyson's appeal on March 25, 2008.

I. Hartford Upholds its Benefits Termination

Hartford referred Boyson's file to MBS Solutions ("MBS"), a

medical consultant program, on April 23, 2008 for peer review and

advised Boyson's counsel that her claim would be assessed. On

May 13, 2008, Hartford received the Peer Review Report of Dr.

Kenneth Kopacz, an independent orthopedist retained by MBS. Dr.

Kopacz noted that "based upon the available information, the only

restriction for [Boyson] would be no freguent stair climbing or

freguent bending," and concluded that Boyson "should be able to

work full time, 5 days per week."

Kopacz also reported

that, despite numerous attempts, he had been unable to contact

Dr. Stepro to discuss his contrary analysis.

Hartford notified Boyson by letter on May 27, 2008 that it

was upholding its decision to terminate her LTD benefits. I d . at

335-37. Boyson's counsel reguested a copy of Dr. Kopacz's

- 16 - assessment, which Hartford provided. I d . at 229-30. Having

exhausted her administrative remedies, Boyson then filed this

lawsuit on or about March 4, 2009. I d . at 211.

II. STANDARD OF REVIEW

The standard of review in an ERISA case differs from that in

an ordinary civil case, where summary judgment is designed to

screen out cases that raise no trial-worthy issues. See, e.g.,

Orndorf v. Paul Revere Life Ins. Co.,

(1st Cir.

2005). "In the ERISA context, summary judgment is merely a

vehicle for deciding the case[,]" in lieu of a trial. Bard v.

Boston Shipping Ass'n,

(1st Cir. 2006). Rather

than consider affidavits and other evidence submitted by the

parties, the court reviews the denial of ERISA benefits based

"solely on the administrative record," and neither party is

entitled to factual inferences in its favor.

Thus, "in a

very real sense, the district court sits more as an appellate

tribunal than as a trial court" in deciding whether to uphold the

administrative decision. Leahy v. Raytheon Co.,

(1st C i r . 2 0 02).

Where, as here, an ERISA benefits plan gives its

administrator discretion to decide whether an employee is

- 17 - eligible for benefits,7 "the administrator's decision must be

upheld unless it is arbitrary, capricious, or an abuse of

discretion." Wright v. R.R. Donnelley & Sons Co. Group Benefits

Plan,

(1st Cir. 2005); see Conkright v. Frommert,

No. 08-810,

(Apr. 21, 2010) ("an

ERISA plan administrator with discretionary authority to

interpret a plan is entitled to deference in exercising that

discretion"); Firestone Tire & Rubber Co. v. Bruch,

(1989). This standard is "generous" to the administrator,

but "is not a rubber stamp." Wallace v. Johnson & Johnson,

(1st Cir. 2009). The administrator's decision must

be "reasoned and supported by substantial evidence." Medina v.

Metro. Life Ins. Co.,

(1st Cir. 2009) . "Evidence

is substantial if it is reasonably sufficient to support a

conclusion." Stamp v. Metro. Life Ins. Co.,

(1st

Cir. 2008). "Evidence contrary to an administrator's decision

does not make the decision unreasonable, provided substantial

evidence supports the decision." Wright,

.

7 Both parties agree that Hartford has discretionary authority under the terms of its disability plan to determine an employee's eligibility for LTD benefits. (See Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-1, at 8; Def.'s Mot. for J. on the Admin. R., Doc. No. 20, at 3.)

- 18 - In ERISA cases, "often the entity that administers the plan,

such as an employer or an insurance company, both determines

whether an employee is eligible for benefits and pays benefits

out of its own pocket." Metro. Life Ins. Co. v. Glenn, 128 S.

C t . 2343, 2346 (2008). This dual rule creates a structural

conflict of interest. The presence of such a conflict of

interest, however, does not change the standard of review;

rather, it "should be weighed as a factor in determining whether

there is an abuse of discretion." I d . at 2350; see Cusson v.

Liberty Life Assurance Co. of Boston,

, 224 (1st Cir.

2010); see also Denmark v. Liberty Life Assurance Co. of Boston,

(1st Cir. 2009). "[U]nder certain circumstances,

[that conflict can] be accorded extra weight in the court's

analysis." Cusson, 592 F.3d at 224. "The conflict of interest

at issue . . . should prove more important (perhaps of great

importance) where circumstances suggest a higher likelihood that

it affected the benefits decision." Metro. Life Ins. Co., 128 S.

C t . at 2351; see also Cusson, 592 F.3d at 224. On the other

hand, "[i]t should prove less important (perhaps to the vanishing

point) where the administrator has taken active steps to reduce

potential bias and to promote accuracy." Metro. Life Ins. Co.,

128 S. C t . at 2351. The claimant "bears the burden of showing

- 19 - that the conflict influenced [the administrator's] decision."

Cusson, 592 F.3d at 225.

III. ANALYSIS

Boyson argues that Hartford's decision to terminate her LTD

benefits after five years was arbitrary and capricious because

she was continuously "disabled" under the terms of Hartford's

policy. Boyson argues that (1) there was no change in her

medical or vocational condition, (2) the record review conducted

by Reliable Review Service ("RRS") physicians was incomplete and

erroneous, (3) Hartford's decision to terminate her LTD benefits

was motivated by a conflict of interest, and (4) Hartford's

appeal process did not afford her file a full and fair review.

(See Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc.

No. 19-1.)8 Hartford asserts that (1) Boyson bore the burden of

8 Boyson also makes some vague allegations, found nowhere in her complaint, that Hartford failed to consider her eligibility for worksite modification benefits and vocational rehabilitation services. (See Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-1, at 16.) First, as Hartford points out, its policy does not reguire it to provide rehabilitative services, and, in any event, Boyson never reguested these services. (See Def.'s Mot. for J. on the Admin. R., Doc. No. 20, at 15 n. 3.) Second, the "work incentive benefit" only applies to employees who are both disabled and gainfully employed. See Admin. R. at 1249. As Boyson has failed to articulate how this argument relates to her contention that Hartford's decision to terminate

- 20 - proving her disability on a continuous basis under the terms of

its policy and that it was under no obligation to demonstrate a

change in her condition, (2) that its decision to terminate

Boyson's LTD benefits was reasonable and supported by substantial

evidence, (3) that its structural conflict of interest should not

be accorded any additional weight in assessing the reasonableness

of its determination, and (4) that its appeals process ensured

that her file was given a fair and complete review. (See Def.'s

Mot. for J. on the Admin. R., Doc. No. 20.)

A. Change in Condition

Boyson contends that because there was no change in her

medical or vocational condition, Hartford's decision to terminate

her LTD benefits after extending those benefits for five years

was unfounded. (See Pl.'s Mem. in Supp. of Mot. for J. on the

Admin. R., Doc. No. 19-1, at 11-12.) As Hartford points out,

however, it had no obligation to demonstrate that Boyson's

condition had changed; rather, under the terms of its policy, the

claimant bears "continuing proof of disability." (See Def.'s

Mot. for J. on the Admin. R., Doc. No. 20, at 14); Admin. R. at

1252. Pursuant to this reguirement, Hartford's policy provides

her LTD benefits was unreasonable, it has no bearing on my analysis.

- 21 - that "[the claimant] may be asked to submit proof that [she]

continue[s] to be disabled and [is] continuing to receive

appropriate and regular care of a doctor . . . as often as

[Hartford] feel[s] [is] reasonably necessary." Admin R. at 1252.

According to the First Circuit, "a claimant seeking

disability benefits bears the burden of providing evidence that

he is disabled within the plan's definition." Morales-Alej andro

v. Med. Card Sys.,

(1st Cir. 2007) (emphasis

added) (finding that "[claimant] bore the burden of showing that

he continued to be disabled, as defined in the Plan.").9 Where,

9 Boyson argues that the definition of disability under the Social Security Act should control here. (See Pl.'s Reply Mem., Doc. No. 23, at 7.) However, "to gualify for disability benefits under a plan, a claimant must satisfy the plan's definition of disability, not the definition of disability under the Social Security Act." Morales-Alej andro,

(citing Matias-Correa v. Pfizer, Inc.,

(1st Cir. 2003)). Social Security regulations, therefore "should not be given controlling weight except perhaps in the rare case in which the social security criteria are identical to the criteria set forth in the insurance plan." I d . (citations omitted). While Boyson argues that "the definition of disability under the Social Security Act is not dissimilar" to the definition of disability in Hartford's policy, she concedes that a "material difference" exists as to "what evidence is reguired and how disability is determined." (See Pl.'s Reply Mem., Doc. No. 23, at 7-8 (emphasis added).) Given this concession, I cannot conceive of how the two definitions are similar at all, let alone "identical." See Morales-Alej andro,

. As such, Boyson has not shown that this is the rare case in which Social Security criteria would apply.

- 22 - as here, the claimant bears the burden of continuously proving

her disability under the terms of that plan, the record need not

contain evidence that the claimant's medical condition changed.

See i d .; see also Doyle v. Liberty Life Assurance Co. of Boston,

, 1362 (11th Cir. 2008) (finding that the plan

administrator had no obligation to explain how claimant's

condition had changed, where the burden fell on the claimant

under the plan's policy to establish that she was entitled to LTD

benefits) . As such, Boyson's argument that Hartford must

demonstrate a change in her medical condition that supports its

decision to terminate her LTD benefits is without merit.

B. Conflict of Interest

Boyson argues that Hartford's structural conflict as a plan

administrator that both adjudicates claims and pays benefits

should be accorded significant weight in the court's analysis,

but concedes that the existence of this conflict does not alter

the standard of review. (See Pl.'s Mem. in Supp. of Mot. for J.

on the Admin. R., Doc. No. 19-1, at 10.) Hartford does not

dispute that a structural conflict of interest exists, but

contends that it is entitled to little weight, and argues that it

took steps to reduce the impact of any potential bias. (See

Def.'s Mot. for J. on the Admin. R., Doc. No. 20, at 11-14.)

- 23 - As discussed above, "a conflict exists whenever a plan

administrator, whether an employer or an insurer, is in the

position of both adjudicating claims and paying awarded

benefits." Denmark,

(guoting Metro. Life Ins. Co.,

128 S. C t . at 2348-50); see Section III.B, supra. That conflict,

however, should be accorded significant weight in the court's

abuse of discretion analysis only where there is a "higher

likelihood that it affected the benefits decision, including, but

not limited to, cases where an insurance company administrator

has a history of biased claims administration." Metro. Life Ins.

C o ., 128 S. C t . at 2351. Conversely, the conflict should be

accorded little significance "where the administrator has taken

active steps to reduce potential bias and to promote accuracy,

for example, by walling off claims administrators from those

interested in firm finances, or by imposing management checks

that penalize inaccurate decisionmaking irrespective of whom the

inaccuracy benefits." I d .; see also McGahey v. Harvard Univ.

Flexible Benefits Plan,

(D. Mass. 2009)

(explaining that other relevant considerations include "the

thoroughness and consistency of the explanation of the denial;

the care with which the claimant's own physician's opinions were

treated; and, if the administrator relied on the opinion of

- 24 - independent experts, the extent to which these experts were in

fact truly independent") (citations omitted). Boyson, as the

party asserting an ERISA improper denial of benefits claim, bears

the burden of showing that the conflict influenced Hartford's

decision. See Cusson, 592 F.3d at 225.

Boyson has not met that burden in this case. Though Boyson

alleges that Hartford's reliance upon the video surveillance

conducted by its Special Investigations Unit demonstrates its

bias in handling the processing of her claim, the First Circuit

has approved of surveillance efforts by benefits claims

reviewers. (See Pl.'s Mem. in Supp. of Mot. for J. on theAdmin.

R., Doc. No. 19-1, at 11; Pl.'s Reply Mem., Doc. No. 23, at 9);

see Cusson, 592 F.3d at 229 (finding that it was not

inappropriate for claims reviewers to rely on video footage that

contradicted the plaintiff's reports of limitations, as it is

"permissible to reguire documented, objective evidence of

disability"). The fact that Hartford relied on such objective

evidence does not, in and of itself, demonstrate that its

decision was improperly influenced by financial considerations.10

10 Boyson concedes that she "does not argue that surveillance efforts should never be used as a tool in adjudicating disability claims," but contends that Hartford's summary of the surveillance video indicates bias. (See Pl.'s

- 25 - On the contrary, it appears that Hartford had every reason to

initiate surveillance in order to resolve the inconsistency

between the opinions of Dr. Stepro, who continued to insist that

Boyson was incapacitated, and her physical therapist, who noted

that Boyson was regaining strength and stamina such that she

could likely return to work in a "sedentary to light" capacity.

(See Def.'s Mot. for J. on the Admin. R., Doc. No. 20, at 6) ;

Adm i n . R. at 54.

Hartford cites to several places in the record where it

allegedly took steps to ensure that the processing of Boyson's

claim was unbiased and accurate: its decision to continue to pay

Boyson benefits pending investigation of her claim, the approval

of the initial benefits denial by a second Hartford employee, the

Reply Mem., Doc. No. 23, at 9.) By "summary," Boyson presumably refers to the written time line that narrates the contents of the surveillance video. See Admin. R. at 563-66. That narrative contains nothing more than an objective, time-stamped account of what the surveillance video depicts: Boyson climbing three flights of stairs, walking across a parking lot, lifting two twelve-packs of soda, and standing in line for food stamps. See i d . Furthermore, both Dr. Upadrasta and Dr. Turnbull, to whom Hartford sent this allegedly biased "summary," were also provided with a CD copy of the surveillance itself and a full transcript of the interview that Investigator Berger conducted. See Admin. R. at 424, 427. As such, Boyson's contention that the contents of the surveillance were "skewed to obtain the answers that [ ] Hartford was seeking" is without merit. (See Pl.'s Reply Mem., D o c . N o . 23, at 9.)

- 26 - assignment of her claim on appeal to a unit separate from the

unit that made the initial claims determination, and its referral

of her claim to outside, independent vendors for peer review

medical reports. (See Def.'s Mot. for J. on the Admin. R., Doc.

No. 20, at 13.) None of these factors, in the absence of further

explanation, are particularly convincing. See MacLeod v.

Reliance Standard Life Ins. Co.,

(refusing

to credit an insurer's argument that a structural conflict was

entitled to lesser weight where the insurer initially approved

the claim but "failed to demonstrate special efforts to separate

those individuals within the company who handled finances from

those who handle claims"). However, because Boyson has failed to

support her contention that Hartford was unduly influenced by its

dual position as claims adjudicator and purveyor of LTD benefits

with actual evidence of bias, the structural conflict retains

some weight, but is not accorded any additional weight in my

analysis. See i d .

C. Peer Review by Reliable Review Service ("RRS")

Boyson takes particular issue with the medical reports of

Dr. Goldman and Dr. Andrews, the RRS physicians to whom Hartford

submitted her file for additional, independent review. (See

- 27 - Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-

1 , at 12; Section II.G, infra.) First, Boyson alleges that both

doctors misconstrued her medical history by noting that she had

"fractured her Tibia on 3/20/04 in a motor vehicle accident and

had surgery" and had "not worked since March 5, 2002," where the

plaintiff was in fact injured in a skiing accident on March 20,

2004, reguired multiple surgeries, and ceased working on March

20, 2002. (See Pl.'s Mem. in Supp. of Mot. for J. on the Admin.

R., Doc. No. 19-1, at 13.) Misstating the cause of Boyson's

injuries is not the sort of error that would render a doctor's

report unreliable, particularly where, as here, both Dr. Goldman

and Dr. Andrews were asked to provide an evaluation "given the

totality of the medical evidence." See Admin. R. at 410, 412.

Both reports, when read in their entirety, focus on the pertinent

issue--whether Boyson was able to return to work following her

injury--and both Dr. Goldman and Dr. Andrews cite to doctors'

notes, examination results, and video surveillance observations

that support their assessment of her functional capability. See

Moreover, Dr. Goldman was exclusively tasked with evaluating

Boyson's psychiatric functionality, not her physical pain. See

i d . at 408. Whether Boyson injured her knee in a skiing or motor

- 28 - vehicle accident is clearly not material to that assessment.

Boyson also suggests that the records that RRS reviewed were

incomplete. (See Pl.'s Mem. in Supp. of Mot. for J. on the

Admin. R., Doc. No. 19-1, at 12-13.) Presumably, Boyson refers

to one line in Dr. Goldman's report, in which he indicated that

there were "no mental status examinations" in 2004 for him to

review. See Admin. R. at 408. Even if the record did not

contain the two "mini-mental status" reviews conducted in 2004,

Dr. Goldman's report mentions more recent, and therefore more

relevant,11 mental status examinations that were conducted in

2005, 2006, and 2007. See Admin. R. at 408-409. Moreover, a

claimant must not merely identify any information allegedly

missing from the record; she must explain how that information

"may have altered [the doctor's] conclusion." Smith v. Blue

Cross Blue Shield of Mass., Inc.,

(D.

Mass. 2009). As Boyson has failed to demonstrate that inclusion

11 Hartford's LTD policy limits payment of benefits for disability due to a mental disorder of any type to 24 months following the 180 day Elimination Period. See Admin. R. at 1250; Section II.A, supra. A claimant is additionally under a continuing obligation to prove that she is disabled under the terms of Hartford's policy. Boyson's mental status in 2004, therefore, would have only limited bearing on whether she was eligible for mental disability benefits in 2007. See Admin. R. at 1252.

- 29 - of these allegedly omitted examinations dating back to 2004 would

have changed the outcome of Dr. Goldman's review, their absence

does not undermine his report's ultimate conclusion.12 See i d .

Finally, Boyson contends that both Dr. Goldman and Dr.

Andrews failed to discuss medical evidence weighing in her favor.

The First Circuit addressed this issue in Cusson v. Liberty Life

Assurance, where the reports of independent medical reviewers

failed to address certain documents that were favorable to the

claimant. See Cusson, 592 F.3d at 227. Relying upon its prior

holding in Tsoulas v. Liberty Life Assurance Co.,

(1st Cir. 2006), the First Circuit upheld the district court's

determination that "it would be improper for the court

automatically to assume that unless the medical report lists each

item the examiner reviewed, he or she did not review it."

Cusson, 592 F.3d at 227. Thus, even if Dr. Goldman and Dr.

12 In an apparent attempt to guestion the completeness of RRS's review, Boyson argues that Doctors Goldman and Andrews "listed documents from an unknown source," as the records sent for review included "office visit notes" from Dr. Jacob Tom, whom Boyson allegedly does not know. (Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-1, at 12 n.3); see Admin. R. at 409. First, neither Dr. Goldman nor Dr. Andrews relies upon these notes in the text of his report. See Admin. R. at 408-13. Furthermore, Boyson fails to explain how their inclusion would have caused either doctor to alter his conclusion.

- 30 - Andrews did not discuss each and every document that weighed in

Boyson's favor, it does not necessarily mean that they failed to

review those documents.

Furthermore, it does not appear that the independent review

reports actually overlooked this allegedly favorable evidence.

Boyson alleges that neither outside medical reviewer discussed

her "ability or inability to concentrate, inability to get

restful sleep," the fact that she had "told Dr. Upadrasta [on

January 12, 2007] that she was crying every day because of the

pain," or why they "discounted Dr. Stepro's opinion" that she

could not return to work. (See Pl.'s Mem. in Supp. of Mot. for

J. on the Admin. R., Doc. No. 19-1, at 13.) However, Dr.

Goldman's report specifically noted places in the record where

Boyson reported impaired sleep, appeared tired, revealed varying

complaints of depression, and reported symptoms of poor focus,

concentration and insomnia. See Admin. R. at 408-09. Dr.

Andrews also discussed Boyson's history of insomnia and

depression, and noted that Dr. Upadrasta was her treating

internist. See i d . at 411-12. It would be impractical if not

impossible for a medical reviewer to discuss in detail each and

every piece of a claimant's medical history in a single report;

- 31 - the fact that Dr. Goldman and Dr. Andrews summarized that history

does not mean that they failed to consider evidence favorable to

Boyson.

Finally, it is unclear whether this allegedly overlooked

medical evidence even weighed in Boyson's favor. Although Boyson

cites the opinion of Dr. Upadrasta as favorable evidence. Dr.

Upadrasta actually agreed with Hartford's assessment that she was

capable of returning to work in a sedentary capacity. See Admin.

R. at 426. Boyson's allegation that the RRS doctors improperly

"discounted Dr. Stepro's opinion" is egually unfounded. Both Dr.

Goldman and Dr. Andrews list numerous visit notes, reports, and

correspondences with Dr. Stepro and his office, and Dr. Andrews

actually spoke with Dr. Stepro himself. See i d . at 409, 411-12.

In fact. Dr. Stepro confirmed at that time that he believed

Boyson could work in a sedentary capacity if her physical knee

injury were her only impairment. See i d . at 412.

Furthermore, even if the RRS doctors did "discount" Dr.

Stepro's opinion, they were entitled to do so, as they need not

"accord special weight to the opinions of [Boyson's] physician."

Black & Decker Disability Plan v. Nord,

(2003) .

Courts cannot "impose on plan administrators a discrete burden of

- 32 - explanation when they credit reliable evidence that conflicts

with a treating physician's evaluation."

The RRS doctors,

therefore, were under no obligation to explain why they credited

the video surveillance, reports of other physicians, and

Hartford's functional assessment over Dr. Stepro's comment that

he was "unsure of [Boyson's] ability to succeed in a job, even in

a low demand job." See Admin. R. at 408-12.

D. Review on Appeal

Boyson alleges that Hartford's appeal process did not afford

her file a full and fair review. (See Pl.'s Mem. in Supp. of

Mot. for J. on the Admin. R., Doc. No. 19-1, at 20-22.) First,

Boyson attacks the Peer Review Report of Dr. Kopacz, the

independent MBS Solutions physician to whom her file was

submitted for review. Boyson argues that "Dr. Kopacz's

conclusions were based upon a faulty understanding of the facts"-

-specifically, that he mistakenly noted that Boyson "was seen

sitting in the car for over an hour at a time," and "walking and

standing for greater than 45 minutes at a time." (See Pl.'s Mem.

in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-1, at 21.)

The First Circuit was recently confronted with this issue in

Cusson, where a reviewing physician made several inaccurate

- 33 - statements about surveillance data in his report. See Cusson,

592 F.3d at 220-221. There, though the report "overstated the

amount of time [the claimant] spent outside of her home on

certain days, sometimes by as much as a factor of three" the

court found that its "main substantive point about the

surveillance--that it showed [the claimant] engaged in activities

that she claimed she could not do--was accurate," and therefore

the report was reliable. See i d . at 221, 225. Here, as in

Cusson, Kopacz's report correctly noted that Boyson was seen

engaging numerous activities that exceeded the scope of her

alleged restrictions: walking with a normal gait, easily entering

and exiting a car without assistive devices, and remaining

outside of her home for over five hours. See Admin. R. at 216-

17. Furthermore, while the video time line does not comport

exactly with the disputed observations in Kopacz's report, these

errors are relatively minor when compared with the inaccuracies

discussed, but found to be immaterial, in Cusson. (See Admin. R.

at 216-17, 563-66); see Cusson, F.3d at 220. Because the main

substantive point of Kopacz's report was accurate, it was not

improper for Hartford to credit that report when reviewing

Boyson's claim on appeal. See Cusson, F.3d at 225.

- 34 - Additionally, Boyson argues that Hartford violated ERISA's

"full and fair review" requirements when it failed to provide her

with a copy of Dr. Kopacz's report before the appeal review was

completed.13 (See Pl.'s Mem. in Supp. of Mot. for J. on the

Admin. R., Doc. No. 19-1, at 21);

(h)

(setting forth requirements for appeal of adverse benefit

determinations under ERISA). A "full and fair review" under

ERISA entitles a plaintiff "upon request and free of charge,

reasonable access to, and copies of, all documents, records, and

other information relevant to the claimant's claim for benefits."

(h)(2)(ill). Because Boyson was not

provided with a copy of Dr. Kopacz's decision prior to Hartford's

final denial of her appeal, and was therefore unable to comment

on it, she argues that Hartford has violated its fiduciary

obligations under ERISA. See i d .; see also

-

1 (h) (2) (11) .

While the relevant Code of Federal Regulations provisions do

13 Boyson's counsel did receive a copy of the report after Hartford issued her final denial letter. Upon receipt, Boyson's counsel requested reconsideration of her appeal, which Hartford denied. (See Pl.'s Mem. in Supp. of Mot. for J. on the Admin. R., Doc. No. 19-1, at 21-22.)

- 35 - entitle a claimant to copies of the documents upon which an

insurer relied in denying her appeal, nowhere do they explicitly

require that those documents be furnished prior to the

determination itself. See

(h)(2)(ill).

This Circuit has found this "reasonable access" requirement to

have been met when claim documents are mailed after a plan

fiduciary's decision has been made. See Medina,

.

Furthermore, while the First Circuit has not directly

addressed the precise timing requirements for the provision of

relevant documents on administrative appeal, other circuits have

explicitly held that ERISA "does not require a plan administrator

to provide a claimant with access to the medical opinion reports

of appeal-level reviewers prior to a final decision on appeal."

Metzger v. UNUM Life Ins. Co. of A m . ,

(10th

Cir. 2007); see also Midqett v. Wash. Group Int'l Long Term

Disability Plan,

(8th Cir. 2009) (a claimant's

rights under ERISA "[do] not include reviewing and rebutting,

prior to a determination on appeal, the opinions of peer

reviewers solicited on that same level of appeal."); Glazer v.

Reliance Standard Life Ins. Co.,

(11th

Cir. 2008) ("[R]equiring these documents to be produced earlier

- 36 - would create 'an unnecessary cycle of submission, review, re­

submission, and re-review.'") (internal citations omitted);

Balmert v. Reliance Standard Life Ins. Co., No. 10a0094a.06, 2010

U.S. A p p . LEXIS 7111, at *13 (6th Cir. Apr. 6, 2010) (indicating

that it was "dubious in light of the holdings of [other]

circuits" that the claimant had a right to receive the report of

a reviewing peer physician while her administrative appeal was

still pending). As such, Hartford was fully compliant with

ERISA's "full and fair review" reguirement when handling Boyson's

claim, and Boyson has presented no evidence that indicates

otherwise.

F. Reasoned and Supported by Substantial Evidence

Having addressed each of Boyson's arguments, I must now

determine whether Hartford's decision to terminate her LTD

benefits was "reasoned and supported by substantial evidence."

See, e.g., Gannon v. Metro Life Ins. Co.,

(1st

Cir. 2004); Medina,

. Evidence is substantial so

long as it is "reasonably sufficient to support a conclusion."

Therefore, the only issue before the court is "whether the

administrator's denial of benefits is irrational, with any doubts

resolved in favor of the administrator." Liston v. Unum Corp.

- 37 - Officer Severance Plan, 330 F.3 19, 24 (1st Cir. 2003). While

conflict of interest is one of several different issues that a

court must consider, "in the absence of aggravating circumstances

(say, evidence of arbitrariness or of actual bias)" it is not

dispositive. Denmark,

. Since Boyson has not

demonstrated that Hartford's structural conflict as both

adjudicator of claims and purveyor of benefits actually

influenced its decision to terminate her LTD benefits, this

conflict will remain a factor, but will not be accorded any

additional weight in my analysis of whether Hartford's decision

was proper. See Glenn, 128 S.Ct. at 2346; Cusson, 592 F.3d at

224-25; Section III.B, supra.

Applying this deferential "arbitrary and capricious"

standard to the facts of this case, I must uphold Hartford's

decision "if there is any reasonable basis for it." Morales-

Alejandro v. Med. Card Sys .,

(guoting Madera v.

Marsh USA, Inc.,

(1st Cir. 2005)). Here, the

record clearly supports Hartford's decision to terminate Boyson's

LTD benefits. The vast majority of the evidence--the

surveillance footage, investigator Berger's summary of his

interview with Boyson, and the opinions of Dr. Upadrasta, Dr.

- 38 - Goldman, Dr. Andrews, and Dr. Kopacz--supports Hartford's

conclusion that Boyson's injuries did not prevent her from

engaging in "any occupation" for which she was gualified. See

Admin. R. at 340, 410, 426, 430, 533, 561-66, 1246. In fact, the

only evidence that seems to support Boyson's position is the

opinion of Dr. Stepro, her treating orthopedist, who refused to

review the surveillance footage. See i d . at 771, 803-804. As

this Circuit has repeatedly held, "the mere existence of

contradictory evidence does not render a plan fiduciary's

determination arbitrary and capricious," and a plan administrator

is under no obligation to accept or give particular weight to the

opinion of a claimant's treating physician. Leahy,

; see Vlass v. Raytheon Employees Disability Trust,

(1st Cir. 2001); Black & Decker,

.

Hartford was therefore under no obligation to credit Dr. Stepro's

opinion, and its failure to do so was certainly not "irrational,"

particularly in lieu of the substantial, objective evidence that

contradicted his assessment. See Liston, 330 F.3d at 24.

IV. CONCLUSION

For all of the foregoing reasons, I grant Hartford's motion

- 39 - for judgment on the administrative record (Doc. No. 20) and deny

Boyson's motion (Doc. No. 19). The clerk is directed to enter

judgment and close the case.

SO ORDERED.

/s/Paul Barbadoro_________ Paul Barbadoro United States District Judge

May 7, 2010

cc: Janine Gawryl, Esg. Byrne J. Decker, Esg.

- 40 -