Cusson v. Liberty Life Assur. Co. of Boston, 08-2381.

• Citation: 592 F.3d 215
• Decision Date: 14 January 2010
• Docket Number: No. 08-2381.,08-2381.
• Parties: Donna CUSSON, Plaintiff, Appellant, v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON; and The Fleetboston Financial Corporation Long-Term Disability Plan, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

592 F.3d 215

Donna CUSSON, Plaintiff, Appellant, v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON; and The Fleetboston Financial Corporation Long-Term Disability Plan, Defendants, Appellees.

No. 08-2381.

United States Court of Appeals, First Circuit.

Heard September 15, 2009.

Decided January 14, 2010.

Mala M. Rafik, with whom Alyssa A. Yenikomshian, S. Stephen Rosenfeld, and Rosenfeld & Rafik, P.C., was on brief, for appellant.

Samuel Berk and Margaret Arenas Malek, on brief for amicus curiae Massachusetts Employment Lawyers Association, in support of reversal.

George M. Thompson and Sager & Schaffer, LLP, on brief for amicus curiae Health Law Advocates, in support of reversal.

Andrew C. Pickett, with whom Matthew D. Freeman and Jackson Lewis LLP, was on brief, for appellees.

Before TORRUELLA, SELYA, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

In this appeal, appellant Donna Cusson ("Cusson") challenges the district court's decision to grant summary judgment to appellees Liberty Life Assurance Company of Boston ("Liberty") and the FleetBoston Financial Corporation Long-Term Disability Plan ("LTD Plan"). After Liberty terminated Cusson's long-term disability ("LTD") benefits, Cusson sued in the U.S. District Court of Massachusetts, arguing that the termination of her benefits was improper under the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1431 (2006). The district court granted summary judgment in favor of the defendants, and Cusson now appeals. After careful consideration, we affirm the district court's judgment.

I. Background¹

A. The Long-Term Disability Plan

Cusson was employed at FleetBoston as a Senior Facilities Planner. She was covered under both a short-term disability plan ("STD Plan") and the LTD Plan. Liberty is both the administrator of and payer of benefits under the LTD Plan. Under the terms of the insurance policy ("the Policy") for the LTD Plan, the definition of "Disability" or "Disabled" for LTD purposes varies over time with the duration of the disability. For the initial twenty-four-month period after a claimant switches into the LTD Plan from the STD Plan, a person is considered "disabled" if she is unable to perform "all of the material and substantial duties of [her] own occupation." However, after twenty-four months, a person is considered "disabled" if she is "unable to perform, with reasonable continuity, all of the material and substantial duties of [her] own or any other occupation for which [s]he is or becomes reasonably fitted by training, education, experience, and physical or mental capacity."

B. Cusson's Fibromyalgia Diagnosis and Initial LTD Benefits Award

In March 2002, Cusson was diagnosed with breast cancer. She began to receive benefits under the STD Plan in April 2002 because of the pain and fatigue caused by her chemotherapy. Cusson was notified on October 9, 2002 that she qualified for LTD benefits under the Policy. Liberty also informed Cusson that she was required to apply for Social Security Disability Income ("SSDI") benefits. Cusson's chemotherapy ended in October 2002. However, she continued to feel symptoms similar to what she felt during her cancer treatment, including dizziness, fatigue, headaches, and widespread body pain.

In February 2003, Cusson's rheumatologist, Dr. James Figueroa ("Figueroa"), diagnosed her with fibromyalgia. Fibromyalgia is characterized by "chronic and frequently difficult to manage pain in muscles and soft tissues surrounding joints." Rose v. Hartford Fin. Servs. Group, 268 Fed.Appx. 444, 446 n. 4 (6th Cir.2008) (citing Taber's Cyclopedic Medical Dictionary 402 (19th ed. 2001)). A patient may be diagnosed with fibromyalgia if she has (1) a history of widespread pain for at least three months and (2) pain in at least eleven out of eighteen tender point sites upon digital palpation. Id. Symptoms of fibromyalgia can include stiffness, fatigue, and disturbed sleep. See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir.1996).

On March 28, 2003, at Liberty's request, Cusson completed an Activities Questionnaire, a document in which a claimant is asked to describe her day-to-day activities and her functional limitations. Cusson indicated that she was able to sit for approximately two hours, stand for fifteen to thirty minutes, and walk for thirty to forty-five minutes. She noted that these lengths of time were "longer/shorter depending on the day and how I feel." She also reported memory and concentration problems, and indicated that she was never able to predict how she would feel from one day to the next.

On August 21, 2003, at Liberty's request, Figueroa filled out a questionnaire regarding Cusson's condition. Figueroa was asked to describe "specific restrictions and limitations ... preventing your patient from being able to work." Figueroa also submitted a Physical Capacities Form, on which he reported that Cusson could lift no more than ten pounds twice a day, could sit for four hours per day but needed to stand up every fifteen minutes, could stand for up to one hour but needed to sit every five to ten minutes, and could walk for an hour but needed to rest every few minutes. Figueroa concluded that Cusson could not work a full eight-hour day until her pain and fatigue subsided.

On March 15, 2004, Liberty notified Cusson that beginning September 29, 2004, the definition of "disabled" under the Policy would change, after which Cusson would have to be unable to perform all of the material and substantial duties of any occupation for which she was qualified. On May 7, 2004, Figueroa, at Liberty's request, completed a Functional Capacities Form and a Restrictions Form. The Functional Capacities Form asked Figueroa to list, for various activities, whether Cusson had "[n]o [r]estrictions," could perform the activity "[f]requently (1/3 to 2/3 of the time)," "[o]ccasionally (up to 1/3 of the time)," or was "[u]nable to" perform the activity. Figueroa indicated that Cusson was "[u]nable to" squat, bend, kneel, climb, push or pull objects, or lift any weight over ten pounds.

C. 2004 Review and Termination of Cusson's LTD Benefits

On May 18, 2004, Liberty hired Omega Insurance Services, Inc. ("Omega") to conduct video surveillance of Cusson. Eleven days later, Liberty again told Cusson to apply for SSDI benefits, warning that if she did not, Liberty would reduce her disability benefit by the amount she was eligible to receive from the Social Security Administration ("SSA"). Liberty also informed Cusson that it would help her obtain SSDI benefits.

Omega conducted surveillance of Cusson on June 9-12, 17, and 24, 2004. Omega videotaped Cusson when she was observed outside of her home, and it obtained fifty minutes and fifty-eight seconds of video over the course of these six days. The video footage that was obtained appeared to show Cusson engaged in normal activities. For example, on June 9, Cusson was observed walking her dog for approximately thirty minutes; according to the Omega report, Cusson walked "in a smooth, fluid manner without exhibiting any external signs of impairment." Later that day she drove to a nearby Home Depot store and was seen exiting the store an hour later carrying a shopping bag. On June 24, Cusson was observed having lunch with a friend at a restaurant and then going to a Wal-Mart. Cusson was inside the Wal-Mart for almost one hour, after which she exited with a loaded shopping cart. She loaded the items from her cart, including what Omega's report described as a large bag of cat litter, into her car, and she was also observed bending at the waist to pick up items that had fallen on the ground.

On July 20, 2004, Liberty told Cusson that if she did not provide proof of her SSA application by August 3, 2004, Liberty would immediately reduce her benefits by the estimated amount of the SSDI benefit. Liberty also instructed Omega to conduct a second round of surveillance. This surveillance occurred between July 26 and 28, during which time Cusson was seen on the surveillance tape once, on July 27, for a total of one minute and seven seconds.

In August 2004, Liberty ordered a third round of video surveillance. Omega performed this surveillance on August 2, 9-10, 14, and 26. Cusson was seen leaving her home only on August 26. Cusson was observed bending fully at the waist to retrieve an item outside her front door. She was then seen driving to a local restaurant and eating lunch with another person, and was then seen driving to a dry cleaner's, a Wal-Mart, and other department stores. During the course of her errands, she was observed carrying various items into and out of stores and bending at the waist to retrieve items from or place items into her car.

On September 15, 2004, Cusson completed another Activities Questionnaire from Liberty, in which she described her functional limitations, including pain, fatigue, memory loss, and inability to concentrate. Cusson reported that since her last Activities Questionnaire from March 28, 2003, she could not remember going to a mall because malls were "just too big"; instead, Cusson noted, she went "mostly to small stores [with] easy access in + out." Cusson also reported that she had "good" days and "bad" days. She said that on a "good" day she would be able to perform activities such as running errands, visiting other people, and having lunch outside her home. However, she reported that on a "bad" day she would be unable to sleep because of her pain and would often be unable to get out of bed for several days.

On October 13, 2004, Figueroa reported to Liberty that, during an eight-hour work day, Cusson could sit for less than two hours, stand for less than thirty minutes, and walk for fifteen minutes. Figueroa also noted that Cusson could not lift or carry more than ten pounds and could not work eight hours per day in any occupation. Two days later, Figueroa reported to Liberty that Cusson's "limitations tend to vary with the...