Falk v. Life Insurance Co. of North America CV-12-178-JL 9/23/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Falk

v. Civil N o . 12-cv-178-JL Opinion N o .

Life Insurance Company of North America/Cigna Group Insurance

OPINION & ORDER

This case arises out of an employee’s claim for long-term

disability insurance benefits due to disc displacement and

discogenic disease in the cervical and lumbar spine, and their

associated symptoms. Plaintiff Richard Falk, formerly a head

line worker for Unitil Service Corporation, sought benefits from

Life Insurance Company of North America/Cigna Group Insurance

(“LINA”), the claims administrator and insurer under Unitil’s

long term disability insurance plan. LINA denied Falk’s claim,

and Falk brought suit under the Employee Retirement Income

Security Act (“ERISA”),

et seq. asking this

court to overturn LINA’s decision and award him benefits under

the plan. See

§ 1132(a)(1)(B) (authorizing civil actions “to

recover benefits due” under an ERISA plan). LINA answered,

defending its decision, and also filed a counterclaim against

Falk alleging that under the terms of the plan, it is entitled to

recover benefits it contends were overpaid to Falk. See id. § 1132(a)(3); Cusson v . Liberty Life Ins. C o . of Boston,

, 230 (1st Cir. 2010). This court has subject-matter

jurisdiction under

(federal question) and

(e)(1) (ERISA).

Both sides have moved for judgment on the administrative

record, see L.R. 9.4(c), and have submitted a joint statement of

material facts, see L.R. 9.4(b). Each side has also submitted a

list of disputed facts. See

After oral argument and an

exhaustive review of the record, judgment is granted to LINA on

Falk’s claim, as the record does not establish--even under a de

novo standard of review--that Falk was disabled from performing

“any occupation for which he . . . i s , or may reasonably become,

qualified based on education, training or experience,” as

required for him to qualify for long term disability benefits

under Unitil’s plan. Based on the submitted record, judgment is

granted to LINA on the counterclaim as well.

I. Applicable legal standard

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 trialworthy issues. See, e.g.,

Orndorf v . Paul Revere Life Ins. Co.,

1 0 , 517 (1st Cir.

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

2 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 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 denial.

Leahy v . Raytheon Co.,

1 , 18 (1st Cir. 2002).

Courts apply varying degrees of scrutiny in reviewing a

denial or termination of benefits under ERISA. Review is de novo

“unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.” Firestone Tire & Rubber C o .

v . Bruch,

0 1 , 115 (1989). Thus, if the plan gives the

administrator or fiduciary discretionary authority, “the

administrator’s decision must be upheld unless it is arbitrary,

capricious, or an abuse of discretion.” Wright v . R.R. Donnelley

& Sons C o . Grp. Benefits Plan,

7 , 74 (1st Cir. 2005).

The court will assume, without deciding, that the less

deferential de novo standard of review applies in this case

(though the court appreciates the parties’ thoughtful and

3 thorough arguments on which standard the court should apply). 1

1 The court remains more than a little skeptical about LINA’s reliance on a “Group Disability Insurance Certificate,” which it issued to Unitil for delivery to its employees under the plan, as the source of a grant of discretionary authority to i t . The Certificate explains that it “makes up the Summary Plan Description as required by ERISA,” and LINA, in relying on i t , would therefore seem to run headlong into the Supreme Court’s opinion in CIGNA Corp. v . Amara, 131 S . C t . 1866 (2011). In Amara, the Solicitor General (as amicus curiae) argued–- as LINA does here--that “the ‘plan’ includes the disclosures that constitut[e] the summary plan descriptions.” Id. at 1877. The Court observed that this argument was “difficult to square” with both ERISA’s language, which “suggests that the information about the plan provided by those disclosures is not itself part of the plan,” and “the statute’s division of authority between a plan’s sponsor and the plan’s administrator.” Id. As the Court explained, “ERISA carefully distinguishes these roles,” providing that a plan sponsor “creates the basic terms and conditions of the plan” while the plan administrator “manages the plan, follows its terms in doing s o , and provides participants with the summary documents that describe the plan (and modifications) in readily understandable form.” Id. Finding “no reason to believe that the statute intends to mix the responsibilities by giving the administrator the power to set plan terms indirectly by including them in the summary plan descriptions,” the Court rejected the Solicitor General’s argument, concluding “that the summary documents . . . provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan.” Id. at 1877-78. This holding, coupled with the fact that both the policy (which is the primary plan document) and the Certificate itself take pains to make clear that the Certificate is not a part of the contract of insurance, significantly undercuts LINA’s attempt to rely upon the terms of the Certificate as a grant of discretionary authority. See, e.g., Sullivan v . Prudential Ins. C o . of Amer., N o . 2:12-cv-1173,

(E.D. Cal. Mar. 2 5 , 2013); Durham v . Prudential Ins. C o . of Am.,

(S.D.N.Y. 2012). The court need not resolve this issue, however, in light of its conclusion that Falk has not carried his burden of showing that he is disabled even under a de novo standard.

4 Under the de novo standard, the court must determine, after a

full review of the administrative record, whether the denial of

benefits was correct. See, e.g., Orndorf, 404 F.3d at 518.

Although the de novo standard allows the court to substitute its

judgment for that of the plan administrator, the claimant still

carries the burden of demonstrating that she is disabled within

the terms of the plan. See id. at 519; see also, e.g., Terry v .

Bayer Corp.,

8 , 34 (1st Cir. 1998). In sum,

de novo review generally consists of the court's independent weighing of the facts and opinions in [the] record to determine whether the claimant has met his burden of showing he is disabled within the meaning of the policy. While the court does not ignore facts in the record, the court grants no deference to administrators' opinions or conclusions based on these facts. Orndorf, 404 F.3d at 518 (citation omitted).

II. Background

A. Falk’s application for disability benefits

Falk, who is 52 years old, was employed by Unitil Service

Corporation as a head line worker. As a Unitil employee, Falk

participated in the company’s group disability insurance plan.

LINA was the insurer and claims administrator under the plan.

Under Unitil’s group disability insurance policy, an

employee is initially defined as disabled, and thus becomes

eligible for disability benefits,

5 i f , solely because of Injury or Sickness, he or she i s :

1. unable to perform the material duties of his or her Regular Occupation; and

2. unable to earn 80% or more of his or her Indexed Earnings from working in his or her Regular Occupation.

After benefits “have been payable for 24 months,” however, the

employee remains eligible for benefits only

i f , solely due to Injury or Sickness, he or she i s :

1. Unable to perform the material duties of any occupation for which he or she i s , or may reasonably become, qualified based on education, training or experience; and

2. Unable to earn 80% or more of his or her Indexed Earnings.

Falk hurt his back while lifting cable in 1993. After

fusion surgery on his lumbar spine, Falk returned to work while

continuing to receive medical treatment, including pain

medication and epidural steroid injections. In late 2007,

however, Falk stopped working due to increasing pain in his

spine. Though he attempted to return to work in early 2008, he

was unable to remain on the job due to his pain, and applied for

total disability benefits from LINA later that year. After

initially denying Falk’s claim in late 2008, LINA ultimately

determined that Falk was incapable of performing the heavy

physical requirements of his job as a head line worker, and was

6 thus disabled within the meaning of the policy. It therefore

approved his claim and began paying him monthly benefits in the

amount of $3,970.00.

In early 2010, Falk applied for disability benefits from the

Social Security Administration, which determined that Falk was

disabled (as that term is defined by the Social Security Act and

its implementing regulations) as of December 2008. Falk began

receiving monthly Social Security disability benefits in the

amount of $2,865.08. Falk also received a lump payment for

retroactive benefits, going back to December 2008, that had

accrued prior to the Administration’s determination.

The policy acknowledges that an employee who is eligible for

disability benefits under its terms might also be eligible for

benefits from other sources, including Social Security disability

benefits. It provides that, in that event, LINA “may reduce the

Disability Benefits by the amount of such Other Income Benefits.”

It further provides that LINA “has the right to recover any

benefits it has overpaid” by either “request[ing] a lump sum

payment of the overpaid amount;” “reduc[ing] any amounts payable

under this Policy; and/or tak[ing] any appropriate collection

activity available to it.” Upon learning that Falk had been

awarded Social Security disability benefits for most of the

period for which LINA had paid him benefits under the policy,

7 LINA concluded that it had overpaid Falk by about $40,000. LINA

thus wrote to Falk requesting that he repay this overpayment in

bulk. After Falk failed to do s o , LINA began applying his

monthly payments (now reduced, in light of the award of Social

Security benefits) to this balance on a going-forward basis.

LINA continued paying benefits to Falk (or, more accurately,

applying Falk’s benefit payments to the claimed overpayment

balance) until October 2010, the end of the initial 24-month

period during which an employee is considered disabled under the

terms of the policy if he is unable to perform the material

duties of his regular occupation. That month, LINA informed Falk

that, based upon the evidence before i t , it had determined he was

not disabled, as he was not (in its opinion) incapable of

performing “any occupation” for which he was, or might reasonably

become, qualified. After a lengthy internal appeals process

(during which Falk submitted additional medical records), LINA

upheld its determination in November 2011. Falk responded by

filing the present action.

B. The administrative record

As noted above, in 2007 and 2008, Falk began experiencing

increasing pain in his neck and back, which Falk’s treating

physiatrist, Powen Hsu, attributed to lumbar disc displacement

8 and radiculitis of the thoracic and lumbar spine. Epidural

steroid injections were initially able to provide Falk with some

relief, and Hsu released him to return to work in February 2008.

Two weeks after returning to work, Falk reported “no

baseline pain” and was “able to tolerate a full day of work

without difficulty” (though he did report occasional pain on his

left side). A little over three weeks after that, however, Falk

complained of increased pain which caused “significant difficulty

with walking and standing” and “bending activities.” Hsu

prescribed medication (specifically, a Medrol p a k ) , “which

relieved [Falk’s] pain completely.” Roughly a month later,

though, Falk experienced a sudden onset of pain while picking up

a piece of siding. According to Falk, that pain remained for

over three days. After observing mild limitations in Falk’s

range of motion, Hsu again prescribed Medrol, which again

improved Falk’s pain–-at least initially. After another month

passed, Falk reported that his pain had slowly returned to “full

force,” such that he experienced difficulty “with his daily

activities of getting out of bed and performing his daily self

care,” and that his pain increased with “any activities

especially standing and walking.” Hsu again prescribed Medrol,

which had no effect on Falk’s pain; a trigger point injection was

also unsuccessful.

9 After an MRI revealed increased herniation in Falk’s lumbar

spine, Hsu ordered an epidural steroid injection, which

temporarily reduced Falk’s pain. Hsu surmised that Falk would be

able to return to work in two weeks (or by mid-July 2008). That

prediction did not prove true, however, as Falk continued to

experience pain in his back and legs.

In September 2008, Falk also began to complain of neck and

shoulder pain radiating into his left arm, and showed significant

limitations in range of motion in his lumbar and cervical spine.

After examining Falk and reviewing the results of an M R I , Hsu

attributed this “intractable pain”–-as he characterized it--to

disc osteophytes in Falk’s cervical spine. Following that visit,

Hsu opined that, due to his diagnoses of multi-level cervical

discogenic disease, lumbar disc displacement and thoracic/lumbar

spine radiculitis, Falk had “no work capacity.” Hsu also

completed a statement of disability form, checking boxes to

indicate that Falk (a) was completely incapable of climbing,

balancing, stooping, kneeling, crouching, crawling, reaching,

walking, sitting, or standing; and (b) could not lift, carry,

push, or pull any weight whatsoever. Roughly a month later, in

late November 2008, Hsu opined that these restrictions remained

largely the same (by re-checking the appropriate boxes). Hsu

did, however, refine his opinion to reflect that Falk could climb

10 stairs and balance up to 2.5 hours per day, and that Falk’s

diagnoses did not impact his ability to reach.

Falk’s arm pain eventually subsided, though he continued to

experience back and leg pain, causing some limitation of motion

in his lumbar and cervical spine. In mid-2009, Hsu opined that,

although Falk was able to control his pain with medication, he

was “unable to perform any work duties”–-including sedentary

work--due to his pain. Falk’s pain lasted throughout 2009, with

intermittent relief from epidural steroid injections performed by

Dr. Robert Spencer of Interventional Pain Management.

In January 2010, Falk attended a Functional Capacity

Evaluation (“FCE”) at LINA’s request. The therapist who

evaluated Falk, Nicole McManus, noted that his gait and posture

showed a lumbar shift to the left. Falk’s gait further exhibited

antalgia, which was particularly evident after prolonged sitting,

and antalgia was also noticeable during sit-to-stand and sit-to-

supine transfers. His lumbar sidebending and extension were

limited by a “structural stop”, while his cervical sidebending

and rotation were limited by pain, as were his shoulder range of

motion and strength. McManus noted Falk’s “limited position

tolerance - any prolonged standing, sitting or brisk walking

notably increased low back pain and frequently proximal left leg

pain.” McManus also observed that Falk “participated in all

11 activities but limited some activities prior to objective signs

of maximal performance due to reports of low back pain, left

buttock and leg pain.”

Based upon these and other observations, McManus opined that

Falk was “at high risk for developing prolonged disability and

work absence due to his pain impeding on all aspects of his

life,” and that his “perceived activities at home and his FCE

performance [were] consistent with significant functional

limitations in regard to lifting, bending, walking and prolonged

static positions.” In her assessment, Falk could sit, stand,

walk, reach below his waist, lift one to fifteen pounds, carry

one to thirty-five pounds, push, pull, climb, stoop, kneel, and

crawl no more than two and a half hours in an eight-hour workday.

LINA also conducted sporadic surveillance of Falk beginning

in January 2010. The first day of this surveillance was the day

of Falk’s FCE. Surveillance videotape recorded that day shows

Falk leaving his home in the morning and walking from his home to

his car with no apparent antalgic gait, or any other difficulty

walking. According to the report of the investigator who

conducted the surveillance, Falk then traveled to a bank, where

he also “walked without any visible limitations when entering.”

(The record contains no videotape of Falk’s stop at the bank.)

Falk then traveled to McManus’s clinic for his FCE. Falk’s

12 arrival at the clinic is documented in the videotape, in which

his gait has changed noticeably. He exhibits obvious signs of

antalgia while walking slowly from his car into the clinic. When

leaving the clinic four hours later, Falk again walks with an

antalgic gait, albeit less pronounced than before. Surveillance

video recorded the following day also shows Falk leaving his

residence and getting into his car, with no apparent antalgia.

Following the FCE, Falk reported an increase in cervical and

lumbar pain to Hsu, which Hsu attributed to acute strain from the

FCE. A transferable skills analysis (“TSA”) performed shortly

after the FCE “to determine if there were transferable

occupations based on [Falk’s] work history, education, wage

requirements and limitations and restrictions” determined that,

“[d]ue primarily to [Falk’s] high wage replacement, transferable

occupations at a sedentary level could not be identified.”

LINA conducted additional surveillance of Falk in February

and March 2010. The February surveillance session, stretching

over three consecutive days, revealed little about Falk’s

condition. Videotape recorded during the first day of

surveillance shows a man who appears to be Falk arriving at his

residence in the mid-afternoon and walking around the outside of

the property with no apparent difficulty or antalgia. The

following day, investigators recorded a brief segment of video

13 showing Falk getting into his car; according to the

investigators’ report, Falk then departed his residence for a

Mobil station before returning home, then leaving again for an

undetermined location. On the third day, investigators neither

recorded nor observed outside activity by Falk.

The March surveillance session was somewhat more fruitful.

Investigators recorded videotape of Falk that depicts him

accompanying acquaintances to two locations: an auto parts

dealership and a gas station. (According to the investigators’

report, Falk also visited at least two other locations, which are

not depicted in the video footage.) There is no clear footage of

Falk’s visit to the auto parts dealership, but videotape recorded

at the gas station shows Falk walking around the outside of the

station and climbing into the cab of a pickup truck with no

apparent difficulty or antalgia.

Falk visited Hsu again in early April 2010 and reported that

his pain control had improved after he lost 43 pounds. Aside

from “difficulty” with his arms and shoulders while sleeping,

Falk professed himself “happy with his pain regimen.” Hsu

prescribed Oxycodone and an epidural steroid injection, which D r .

Spencer performed in early to mid-June 2010. Falk reported

“significant pain improvement” as a result of the injection.

14 At more or less the same time, a LINA vocational specialist

performed another TSA to determine “at what physical demand level

transferable occupations” for Falk could be identified. Taking

into account Falk’s wage requirement, level of education, and

work history, the specialist identified no transferable

occupations at the sedentary level of physical demand. He also

opined that “[a]t the light level, occupations in the areas of

maintenance and service supervision, preventative maintenance

coordination and sales positions could potentially be

identified,” but remarked that, “[i]n order to complete a formal

TSA, updated limitations and restrictions would be required.”

In what appears to be an effort to obtain these “updated

limitations and restrictions,” LINA sought to schedule Falk for

an independent medical evaluation (“IME”), initially scheduling

him for an IME with orthopedic surgeon Anthony Marino. But LINA

was forced to reschedule with another orthopedic surgeon, David

Publow, after Marino declined to perform the IME. Publow himself

declined to perform the IME, and LINA ultimately scheduled Falk

for an IME with orthopedic surgeon Kenneth Polivy in September

2010.

In the meantime, LINA again conducted surveillance of Falk

in mid-August 2010. The investigator observed no activity around

Falk’s residence on the first day of the two-day session. On the

15 second day, however, the investigator observed Falk at an auto

parts dealership, and obtained video of Falk in the parking lot

of the dealership with two other people. In the video, Falk

walks and enters his automobile without any apparent difficulty

or antalgia.

Polivy’s IME the following month consisted of a review of

Falk’s medical history and treatment, including the FCE performed

in January 2010, a review of the surveillance video of Falk, and

a physical examination. After noting that Falk stood “with level

hips and level shoulders,” walked “without an antalgic gait,” and

was “able to heel walk and toe walk without difficulty,” Polivy

concluded that Falk’s symptoms were “consistent with lumber

degenerative spondylitis status post anterior lumber fusion as

well as cervical degenerative spondylitis with intermittent left

arm radiculopathy.” Polivy observed that Falk’s “subjective pain

complaints are supported by objective findings,” and that his

“clinical examination and medical records correlate with his

self-reported activities of daily living.” Polivy “agree[d] with

the assessment of the [FCE] indicating, in essence, that M r . Falk

is capable of full time light duty work activity and he should

avoid any overhead activities.” He continued: “[Falk] should

not work with his shoulders overhead nor should he be required to

look overhead on a regular basis.”

16 Polivy also completed a physical ability assessment form

indicating that, in his opinion, Falk was capable of sitting,

standing, and walking frequently (i.e., 2 ½ to 5 ½ hours per day)

and lifting and carrying 10 pounds frequently and 11-20 pounds

occasionally (i.e., up to 2 ½ hours per d a y ) . On the form,

Polivy also opined that Falk was capable of pushing up to 40

pounds and pulling up to 30 pounds occasionally, and capable of

balancing, stooping, kneeling, crouching, and crawling

occasionally as well. Consistent with the remarks in his report,

Polivy opined that Falk was incapable of reaching overhead and of

lifting and carrying weights greater than 20 pounds.

After receiving Polivy’s IME report, LINA contacted him to

obtain “clarification” regarding the “FCE reference” in the

report. Polivy’s addendum, provided in early October 2010,

explained:

[I]t is noted that I agreed with the functional capacity evaluation that was performed. In my opinion, Mr. Falk demonstrated the capacity to perform a full time light duty work activity with a lifting restriction of 15 pounds from floor to waist on an infrequent basis and no overhead lifting and no repetitive lifting from waist to shoulders. The functional capacity evaluation apparently concludes that M r . Falk has a less than sedentary capacity. It does however note that he is capable of lifting 15 pounds and performing other activities.

Therefore, based upon my physical examination, review of the records, and M r . Falk’s physical presentation at the time of the exam, it is my opinion that he is

17 capable of full time light duty work activity. This would be at a greater work capacity than was noted in the functional capacity evaluation.

Later that month, LINA’s vocational specialist performed a

new TSA that took into account the “updated limitations and

restrictions” provided by Polivy. After reviewing Falk’s

previous work experience, education, and training, the vocational

specialist concluded that Falk was capable of performing several

different jobs “in the labor market of Manchester, NH.” These

included, but were not limited to maintenance supervisor in the

utilities industry (which was akin to Falk’s position at Unitil);

instrument-shop supervisor or line supervisor in the telephone

and telegraph industry; and service supervisor, maintenance

supervisor, or preventive maintenance supervisor in any industry.

It was after receiving these results that LINA initially informed

Falk that it had determined he was not disabled, as discussed in

the preceding section, setting off the internal appeals process,

and, ultimately, this action.

Medical records for the period before and immediately after

the IME and renewed TSA show that Falk received only sporadic

treatment. As already noted, Falk received an epidural steroid

injection in June 2010, which provided him with significant

relief. Though Hsu’s notes indicate that Falk had been scheduled

to receive another injection in mid-July 2010, there is no

18 evidence in the record that he did. Nor is there record of any

other treatment until early November 2010, when Falk told Hsu of

increased neck pain, accompanied by “right sided chest pain” that

began after a fall. Hsu ordered a MRI and prescribed Medrol,

which relieved Falk’s pain. The MRI revealed severe foraminal

stenosis of the cervical spine. An MRI performed in late January

2011, after Falk reported increased lower back pain, similarly

revealed stenosis of the lumbar spine as well as foraminal

narrowing at the first sacral vertebra. Hsu again prescribed an

epidural steroid injection, which had again significantly

improved Falk’s pain as of late February 2011. Hsu later ordered

a repeat injection, which again decreased Falk’s lower back pain.

Not long thereafter, orthopedic surgeon John Schneider

reviewed Falk’s medical records at LINA’s request. Schneider

also spoke to Spencer--who stated that he had not seen Falk since

July 2010 and had no further information to provide--and tried

several times to speak to Hsu, leaving messages that went

unreturned. Schneider concluded:

[T]he restrictions outlined by the treating providers (Dr. Hsu and D r . Spencer) are not supported. The data indicates the claimant can work full-time at a light PDL. The submitted clinical records indicate that the claimant has undergone a functional capacity evaluation as well as an independent medical evaluation [in September 2010]. In a clarification to that report D r . Kenneth Polivy notes that the claimant could perform a full time light duty capacity with lifting restriction

19 of 15 pounds from floor to waist, no overhead lifting and no repetitive lifting from waist to shoulders. The available data as provided does not provide any objective evidence to refute these recommendations. Therefore, the recommendations for the claimant to remain off work are not supported.

Shortly after receiving Schneider’s report, LINA upheld its

initial determination that Falk was not disabled. Falk notified

LINA of his desire to appeal that determination again in early

August 2011. A week or so later, he visited Hsu, complaining of

increased pain. As Falk claimed to be unable to afford a further

epidural steroid injection, Hsu prescribed oxycodone. Hsu then

completed a medical source statement in which he opined that Falk

could sit or stand no more than two hours in an eight-hour

workday, and could do so a maximum of 15 minutes before needing

to change positions, thus requiring a job that would permit him

to shift positions at will and take unscheduled breaks during the

workday. Hsu further opined that Falk could twist, stoop,

crouch, climb stairs, and lift ten pounds only rarely, and could

lift weights less than ten pounds only occasionally.

About two months later, in late October 2011, Mark Ferlan,

D O , of Derryfield Medical Group, wrote a letter stating that Falk

was being seen “for severe neck osteoarthritis and foramenal

[sic] stenosis and is unable to work currently.” The letter

continued: “[d]ue to the degeneration of [Falk’s] cervical spine,

20 his cervical motion is limited to 30-45 degrees in all planes.

He is unable to lift more than 5 pounds. He is currently being

evaluated for spinal surgery.”

Early the following month, LINA referred Falk’s file for an

internal review by its Associate Medical Director, internist

Michael Atta. After reviewing “all of the medical, vocational,

and clinical information provided by company personnel bearing on

[Falk’s] claim,” Atta opined that “with a reasonable degree of

medical certainty . . . the restrictions and limitations are not

supported.” He explained that “[t]here are no quantifiable,

significant, documented findings which demonstrate a functional

loss which would preclude sitting and the use of upper

extremities.” Shortly thereafter, LINA informed Falk that it was

upholding its previous determination that he was not disabled,

within the meaning of Unitil’s policy, as of October 2010.

III. Analysis

A. Falk’s claim for benefits

ERISA is a statutory framework that “Congress enacted . . .

to protect the interests of participants in employee benefit

plans,” Johnson v . Watts Regulator Co.,

(1st

Cir. 1995), and to “ensure that plans and plan sponsors would be

subject to a uniform body of benefits law,” N.Y. State Conf. of

21 Blue Cross & Blue Shield Plans v . Travelers Ins. Co.,

(1995). To promote those objectives, ERISA provides

that an employee who participates in an “employee welfare benefit

plan” (as defined in

(1)) may bring a civil

action against the plan’s administrator “to recover benefits due

to him under the terms of his plan.”

(a)(1)(B).

Here, the parties agree that Unitil’s disability plan qualifies

as an employee welfare benefit plan covered by ERISA, and that

Falk was one of its participants. The relevant question, then,

is whether § 1132(a)(1)(B) entitles Falk to recover disability

benefits.

In analyzing Falk’s claim, the court begins with the basics:

a “guiding principle in conducting de novo review” in ERISA cases

“is that it is the plaintiff who bears the burden of proving he

is disabled.” Orndorf, 404 F.3d at 518-19. To meet that burden,

the terms of Unitil’s plan require Falk to prove that, “solely

due to Injury or Sickness,” he is “[u]nable to perform the

material duties of any occupation for which he . . . i s , or may

reasonably become, qualified based on education, training or

experience.” He has not done s o .

It is clear from the record that Falk suffers from back and

neck ailments that limit his ability to work. All the varying

medical professionals whose opinions appear in the record agree

22 on that point, which is amply supported by the results of MRIs

and other objective medical tests. Indeed, LINA recognized as

much, concluding in 2008 that Falk was eligible for disability

benefits due to his inability to perform his job as a head line

worker. The key issue, though, is the extent to which Falk’s

back and neck problems limit his ability to work. Do they render

him incapable of performing the physical requirements of any job

for which he might reasonably be qualified, as the opinions of

Drs. Hsu and Ferlan suggest, or can he still perform light duty

work, as Drs. Polivy, Schneider, and Atta opine?

Falk’s memorandum is of little utility to the court in

answering this question, and determining which of the competing

medical opinions to credit. While the memorandum is 46 pages

long (21 pages longer than this court’s typical page limit for

dispositive memoranda, see L.R. 7.1(a)(3)), over half of this

total comprises a recitation of the facts that is largely

duplicative of Falk’s statement of disputed facts, filed

separately pursuant to Local Rule 9.4(b). A good deal of the

remaining page count is devoted to arguing that this court should

apply a heightened level of scrutiny to LINA’s denial of benefits

due to a “structural conflict” (i.e., LINA’s status as both the

entity paying benefits and determining eligibility for them, see

23 generally Metro. Life Ins. C o . v . Glenn,

(2008)). 2

Adjusted for Falk’s introduction and statement of the standard of

review, little more than a page of argument and analysis remains

(supplemented by a few rhetorical flourishes tucked into

inconspicuous corners of the memorandum).3

These meager morsels of argument are not enough to sustain a

successful challenge to LINA’s denial of benefits. The core of

Falk’s argument–-what he characterizes as “the most unusual

feature of this case, and most damning to LINA’s position”–-is

that both of the orthopedic surgeons LINA initially contacted to

perform an IME (Drs. Marino and Publow) declined to perform the

examination after being provided Falk’s medical records. Pl.’s

Mot. for J. on Admin. R. (document n o . 22) at 4 5 . Conceding that

“[t]he record contains no evidence of why these doctors refused

2 Because this court is reviewing LINA’s decision de novo, the existence of a structural conflict is ultimately irrelevant to the standard of review, see, e.g., Coffin v . Bowater Inc.,

0 , 92-93 (1st Cir. 2007); Kansky v . Coca-Cola Bottling C o . of New England,

4 , 58 (1st Cir. 2007), as counsel for both parties agreed at oral argument. 3 Given the cursoriness of Falk’s argument, the court could easily “fall back upon the prudential rule that ‘issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’” Marek v . Rhode Island,

5 0 , 655 (1st Cir. 2012) (quoting United State v v . Zannino,

, 17 (1st Cir. 1990)). Rather than doing so, this court has endeavored to give Falk’s argument the fullest consideration possible.

24 to do the ‘case,’” Falk nonetheless asks this court to indulge

the “assumption that they did not believe they could render an

opinion that would be helpful to LINA.”

at 2 7 . (The dual

implications of this assumption being that Drs. Marino and Publow

believed Falk to be totally disabled, and that D r . Polivy may

have shaded his opinion to favor LINA.) But, in the absence of

any evidence that Falk’s preferred explanation for the doctors’

refusal to perform the IME is any more likely than one of the

much simpler and less nefarious alternatives (such a s , for

example, that the doctors simply lacked the time to review Falk’s

records and examine h i m ) , the court is unwilling to take this

logical leap.4

Far more important to the court’s conclusion are the medical

opinions that are actually in the record: those of Drs. Hsu,

Ferlan, Polivy, Schneider, and Atta. Yet Falk dedicates little

4 The court acknowledges that Falk previously moved for discovery into “the reasons D r . Publow and D r . Marino declined to review the plaintiff’s file,” among other things, see Mot. for Discovery Outside the Admin. R. (document n o . 26) at 2 , and that the court denied that motion, see Order of May 1 , 2013. Given this state of affairs, Falk might understandably complain that he could have remedied the evidentiary deficiencies just identified if the court had only granted his motion. If Falk believed such discovery was warranted, though, he was obliged to request it within 14 days after the administrative record was served. See L.R. 9.4(a). He did not do so--indeed, his motion for discovery was not filed until the case was fully briefed–-and thus Falk himself bears the responsibility for any gap in the evidence.

25 space in his memorandum to the relative merit of these opinions.

He does not argue, as claimants in ERISA cases often d o , that the

court should credit the opinions of Hsu and Ferlan over those of

the other three doctors because Hsu and Ferlan actually treated

him and have a longitudinal view of his medical impairments.

And, at least in Ferlan’s case, such an argument would ring

hollow in any event. The only documentation of any kind from

Ferlan in the record is the terse letter in which he opines that

Falk “is unable to work currently” and “is unable to lift more

than 5 pounds.” The letter does not explain how long Ferlan had

been seeing Falk,5 nor does it provide any explanation as to how

Ferlan arrived at his conclusions. Without such an explanation,

or at least some other evidence of the length and nature of

Ferlan’s treatment relationship with Falk, Ferlan’s conclusory

opinion is entitled to little weight in the court’s analysis.6

5 A handwritten notation on the letter says that Ferlan is a “Family Doctor.” It is not apparent to the court that this means that Ferlan is Falk’s family doctor (though the parties appear to agree that he i s ) , and even if he i s , it does not necessarily follow that Ferlan regularly saw Falk himself, as opposed to other members of his family. Again, there is no other record of Ferlan’s treatment of Falk. 6 The court also accords little weight to the Social Security Administration’s finding that Falk was disabled, to which Falk makes passing reference in his memorandum. See Pl.’s Motion for J. on Admin. R. (document n o . 22) at 35 (arguing that the court should consider this finding);

(similar). That finding is not entirely irrelevant. See Pari-Fasano v . ITT Hartford Life

26 Cf. Prince v . Metro. Life Ins. Co.,

(“An

insurer is not required to blindly accept conclusory findings

provided by an insured’s physician.”).

As Hsu treated Falk over an extended period of time, his

opinions as to Falk’s capabilities are the strongest evidence in

support of Falk’s position, and require a bit more consideration.

Ultimately, however, those opinions are also insufficient to meet

Falk’s burden of proving disability.

As discussed in Part II.B supra, Hsu rendered opinions as to

Falk’s physical capacity on three occasions. In late 2008, Hsu

completed a physical ability assessment form, opining that Falk

had “no work capacity” and checking boxes to indicate that Falk

had no ability whatsoever to perform a wide range of basic tasks

including kneeling, crouching, walking, sitting, and standing,

see Admin. R. at 850-52, an exercise he repeated again two months

& Accident Insurance Co.,

(1st Cir. 2000); ince,

, at 17-18 n.7. Because, however, “[t]he Princ criteria for determining eligibility for Social Security disability benefits are substantively different than the criteria established by many insurance plans,” the Administration’s decision on a claim for Social Security benefits “should not be given controlling weight except perhaps in the rare case in which the statutory criteria are identical to the criteria set forth in the insurance plan.” Pari-Fasano,

. This is not one of those cases (and Falk does not argue that it i s ) . Nor is there any indication in the record as to the medical conditions and medical evidence upon which the Administration based its decision, so that evidence may have been quite different from the evidence contained in the administrative record of this case.

27 later, see id. at 848-49. And, in mid-2011, he again rendered an

opinion that disqualified Falk from most (if not all) light work,

pronouncing that Falk could sit or stand no more than two hours

in an eight-hour workday, and could do so for a maximum of 15

minutes before needing to change positions. See id. at 360-64.

Notably, it does not appear that Hsu undertook any clinical

testing to determine Falk’s physical restrictions and limitations

before rendering any of these opinions. His records of his

physical examinations of Falk, while documenting some limitations

in Falk’s range of motion, are not reflective of the severe

limitations included in the opinions. Hsu’s 2008 opinions are,

moreover, internally inconsistent: although Hsu stated that Falk

was incapable of walking or standing at all, he also stated that

Falk was capable of climbing stairs up to 2.5 hours per day, see

id. at 851--a task that would seemingly be beyond the reach of

someone with no ability to stand or walk. This contradiction

gives rise to the appearance that Hsu first arrived at the

conclusion that Falk had “no work capacity,” see id. at 849-50

(not an unreasonable one, given the heavy physical requirements

of Falk’s previous employment as a head line worker) and, rather

than carefully measuring and documenting Falk’s physical

abilities, simply checked off boxes supporting that conclusion.

28 This observation is not intended to suggest that Hsu’s

assessment was less than honest. To the contrary, the court

simply assumes that Hsu, like many physicians, has a busy

practice and, when confronted with a form asking him whether his

patient could return to his job, did not conduct a meticulous

assessment of Falk’s physical abilities.7 The court is also

mindful of the Supreme Court’s admonition that “a treating

physician, in a close case, may favor a finding of ‘disabled.’”

Black & Decker Disability Plan v . Nord,

2 2 , 832 (2003);

cf. Thomas v . G a . Pac. Corp., N o . 05-cv-357,

, at

*6 (E.D. Okla. Apr. 2 8 , 2006) (“[T]reating physicians are paid by

the patient. A treating physician’s livelihood may often hinge

on a continuing relationship with his patients--a relationship

that may very well rest upon (or be reinforced by) the physician

making findings desired by the patient.”).

Hsu’s 2011 opinion as to Falk’s capabilities i s , to be

sure, more nuanced, thoughtful, and internally consistent. As

already stated, though, that opinion apparently does not rely

upon the results of any clinical testing of Falk’s physical

7 That Hsu has a busy practice is perhaps evidenced by the multiple occasions on which he did not respond to inquiries about Falk, which LINA details in its memorandum. The court does not, at any rate, view Hsu’s unresponsiveness on these occasions as “consistently evasive,” which is how LINA characterizes i t . See, e.g., Deft.’s Mot. for J. on Admin. R. (document n o . 25) at 1 5 .

29 restrictions and limitations, and instead appears to be based

upon Falk’s own subjective complaints. Acceptance of those

complaints is “more or less required of treating physicians,”

Maniatty v . Unumprovident Corp.,

0 0 , 504

(S.D.N.Y. 2002), so Hsu again cannot be faulted for this, but it

makes the court reluctant to place too much weight upon Hsu’s

opinion. See Colassi v . Hartford Life & Accident Ins. Co.,

(appropriate to accord little weight to treating

physician’s opinion when it “finds little record support in the

form of objective examinations or test results”). This

reluctance aside, the court might nonetheless be more inclined to

accept Hsu’s opinion if it were the only opinion as to Falk’s

abilities in the record. It is not.

Countering Hsu’s opinion are the opinions of Drs. Polivy,

Schneider, and Atta, all of whom, unlike Hsu, were able to review

the full scope of the record, including all the medical records

Falk had submitted, the surveillance videotapes and reports, and,

significantly, the report of the January 2010 FCE. Polivy also

performed a physical examination of Falk. All three opined that

Falk was not as restricted as Hsu indicated.

The court recognizes, of course, “that physicians repeatedly

retained by benefits plans may have an incentive to make a

finding of ‘not disabled’ in order to save their employers money

30 and to preserve their own consulting arrangement.” Nord, 538

U.S. at 832 (some internal quotation marks omitted). But there

is little reason to believe that this is the case here. There is

no evidence that Polivy or Schneider had been “repeatedly

retained by benefits plans,” o r , more significantly, that they

even knew what findings they would need to make to ensure a

conclusion that Falk was not disabled.8 And in fact, Polivy’s

and Schneider’s opinions that Falk was only capable of light duty

work would have supported a conclusion that Falk was disabled if

the definition of disability turned on Falk’s ability to perform

his “Regular Occupation” (as it did for the 2 years during which

LINA paid benefits).

Of the opinions rendered by these three doctors, Falk has

trained his sights solely on Polivy’s opinion, and raises no

issues with the opinions rendered by Schneider or Atta. But see

supra n.8. Falk raises the specter of bias on Polivy’s part,

suggesting that Polivy’s initial opinion “was unsatisfactory [to

LINA], and he had to be prompted to include an addendum that

would place M r . Falk’s work capacity within the framework of jobs

8 Atta presents a somewhat different situation. As a LINA employee, he presumably had access to LINA’s entire file concerning Falk’s case. He also had a greater incentive to render an opinion favoring LINA. Thus, although Falk has not raised any concern about Atta’s impartiality, the court has given Atta’s opinion negligible weight in its analysis.

31 which [LINA’s vocational specialist] had already identified.”

Pl.’s Mot. for J. on Admin. R. (document n o . 22) at 4 5 .

The record, however, reveals that the circumstances

surrounding LINA’s request for an addendum were far less self-

serving, and that the addendum did not alter Polivy’s opinion as

Falk asserts. Polivy’s original report purported to “agree with

the assessment of the [FCE],” but opined that Falk was capable of

light duty work and attached a physical ability assessment form

indicating that Falk had a greater tolerance for sitting,

standing, and walking than the FCE had indicated. Had LINA

desired a finding that placed Falk’s work capacity “within the

framework of jobs” already identified, then, it could simply have

accepted without question this assessment of Falk’s work

capacity, which did just that. Instead, LINA sought to have

Polivy clarify how he could both “agree with the assessment of

the [FCE]” and yet arrive at a different conclusion as to Falk’s

ability to sit, stand, and walk. If anything, then, LINA’s

request provided Polivy with the opportunity to revise his

opinion in Falk’s favor–-not LINA’s. Instead, Polivy’s opinion

remained the same after he provided the addendum, i.e., that Falk

was “capable of full time light duty work activity.”9

9 Falk has not attacked Polivy’s opinion (or the opinions of Schneider and Atta) by arguing that it is inconsistent with the

32 Falk’s other shots at Polivy’s opinion also sail wide of the

mark. Falk observes that Polivy’s report contained an inaccuracy

in its recounting of his medical history, see id. at 2 8 , but it

is not apparent to the court that this inaccuracy tainted

Polivy’s opinion in any way, and Falk does not argue that it did.

Falk also notes that Polivy’s observation that Falk had no

antalgic gait “was inconsistent with that of the therapist who

performed the FCE, and of the agent who performed surveillance.”

Id. While true, that distinction does not undermine Polivy’s

opinion. It is apparent from the videotape surveillance (which

Polivy reviewed) that Falk sometimes walks with an antalgic gait

and sometimes walks without one, so it is not surprising that

Falk may have walked with an antalgic gait on the day of the FCE,

but not on the day of Polivy’s IME.

What this all boils down to is that, with the burden of

proof allocated to Falk, the court cannot credit the opinions of

FCE results. That line of attack would not persuade the court, anyway: while an FCE may be helpful in forming a full picture of a claimant’s capabilities, it is not a foolproof method and can be limited by the claimant’s subjective level of effort. See Lake v . Hartford Life & Accident Ins. Co.,

(M.D. Fla. 2004) (“[I]t is often the case that an individual is not motivated to perform at their maximal level of functionality in the setting of [an FCE].”). As LINA notes in its memorandum, see Deft.’s Mot. for J. on Admin. R. (document n o . 25) at 1 9 , the FCE results in this case may have been compromised by inconsistent effort on Falk’s part–-no doubt informing the opinions of Drs. Polivy, Schneider, and Atta.

33 Drs. Hsu and Ferlan over those of Drs. Polivy, Schneider, and

Atta. The record supports the conclusion that, consistent with

the opinions of Drs. Polivy and Schneider, Falk retains the

capacity to perform full time light duty work.

That does not conclude the court’s analysis of Falk’s claim.

There is still one loose end to tie u p . Falk argues in passing

that even if the court accepts LINA’s position that he can

perform light duty work, he should still be considered disabled

because he has no experience performing any of the light duty

jobs identified by LINA’s vocational specialist. See

at 2 9 ,

32. That argument was not presented to LINA, although Falk had

ample opportunity to raise it during his two internal appeals of

LINA’s denial, and it is too late for Falk to do so now. See

Frost v . Hartford Life & Accident Ins. Co.,

1 7 , 2 7 ; see

also Liston v . Unum Corp. Officer Severance Plan,

9 , 24

(1st Cir. 2003) (“Even where de novo review exists under ERISA,

it is at least doubtful that courts should be in any hurry to

consider evidence or claims not presented to the plan

administrator.”). Yet even assuming that Falk could raise his

newfound argument for the first time at this late juncture, the

fact that he has no experience in any of the jobs that LINA

identified is irrelevant. The touchstone for disability under

Unitil’s policy is not the claimant’s inability to “perform the

34 material duties of occupations in which he or she has

experience”; it is the claimant’s inability to “perform the

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

reasonably become, qualified based on education, training or

experience.” While Falk implies (without explicitly stating)

that he is not presently qualified to perform any of the jobs the

vocational specialist identified, see Pl.’s Mot. for J. on Admin.

R. (document n o . 22) at 2 9 , he makes no argument that he cannot

“reasonably become” qualified to perform those jobs.

In sum, Falk has not carried his burden of demonstrating

that he is disabled within the meaning of Unitil’s disability

policy. Judgment will be granted in LINA’s favor on Falk’s claim

for benefits.

B. LINA’s counterclaim

LINA has also filed a counterclaim seeking reimbursement of

what it claims to have overpaid Falk in the period during which

he was eligible for both disability benefits under Unitil’s plan

and Social Security disability benefits. LINA brings this

counterclaim under

(a)(3), which authorizes a

plan fiduciary to bring a civil action “to obtain other

appropriate equitable relief . . . to enforce . . . the terms of

the plan.” As interpreted by the court of appeals, this section

35 entitles a fiduciary to recover in equity funds that it has

overpaid a claimant under the terms of an ERISA plan, at least

where such recovery is authorized by the plan. Cusson v . Liberty

Life Ins. C o . of Boston,

, 230-32 (1st Cir. 2010).

LINA has demonstrated its entitlement to reimbursement here.

As discussed in Part II.A, supra, Unitil’s policy provides

that if a claimant receives disability benefits from another

source, such as Social Security Disability Insurance, LINA “may

reduce the Disability Benefits by the amount of such Other Income

Benefits.” It also provides that LINA “has the right to recover

any benefits it has overpaid” by “request[ing] a lump sum payment

of the overpaid amount;” “reduc[ing] any amounts payable under

this Policy; and/or tak[ing] any appropriate collection activity

available to it.” LINA invokes these provisions of the policy,

contending that it is entitled to judgment in the amount of

$30,965.10, which it asserts is the remaining balance of its

overpayment to Falk.

Falk has not addressed LINA’s counterclaim in his motion for

judgment on the administrative record. While LINA has moved for

judgment in its favor on the counterclaim in its response to

Falk’s motion, Falk has not submitted a reply, though he was

36 entitled to do so under Local Rule 9.4(c).10 And, when given the

opportunity to argue the merits of LINA’s counterclaim at oral

argument, Falk declined to do s o . Accordingly, it appears that

Falk does not dispute that he is obligated, under the terms of

LINA’s plan, to reimburse LINA for the amount of the overpayment.

Judgment is therefore granted in LINA’s favor in the amount of

$30,965.10, which Falk’s counsel agreed at oral argument was the

appropriate amount of any award to LINA on the counterclaim.

IV. Conclusion

For the reasons set forth above, LINA’s motion for judgment

on the administrative record11 is GRANTED, and Falk’s motion for

judgment on the administrative record12 is DENIED. LINA is

granted judgment in the amount of $30,965.10. Each party will

bear its own fees and costs. The clerk shall enter judgment

accordingly and close the case.

10 In its order of March 1 2 , 2013, the court noted that a reply was “not anticipated,” but did not preclude Falk from filing one. 11 Document n o . 2 5 . 12 Document n o . 2 2 .

37 SO ORDERED.

Joseph N_._ _Laplante ___ ______________ United States District Judge

Dated: September 23, 2013

cc: Leslie C . Nixon, Esq. Byrne J. Decker, Esq.

38