Bloom v. Hartford Life & Accident Ins. Co.

• Decision Date: 23 January 2013
• Docket Number: Case No. 11–CV–81393.
• Citation: 917 F.Supp.2d 1269
• Parties: Melissa R. BLOOM, Plaintiff, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

917 F.Supp.2d 1269

Melissa R. BLOOM, Plaintiff,

v.HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.

Case No. 11–CV–81393.

United States District Court,

S.D. Florida,

West Palm Beach Division.

Jan. 23, 2013.

Benjamin C. Hassebrock, Brenton Neil Ver Ploeg, Ver Ploeg & Lumpkin, P.A., Miami, FL.

Jerel Charles Dawson, Jonathan Matthew Fordin, William Joseph Gallwey, III, Shutts & Bowen, Miami, FL, for Defendant.

OMNIBUS ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD; DENYING DEFENDANT'S MOTIONS TO STRIKE; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

KENNETH L. RYSKAMP, District Judge.

THIS CAUSE comes before the Court on parties' cross motions for summary judgment [DE 42, 46] filed on October 31, 2012 and November 1, 2012. Also before the Court is Plaintiff's motion to supplement the administrative record [DE 72] filed on December 20, 2012, and Defendant's motions to strike exhibits to Plaintiff's motion for summary judgment and Plaintiff's response in opposition to Defendant's motion for summary judgment. See[DE 54, 69]. The motions are fully briefed, and a hearing was held on January11, 2013. These matters are ripe for adjudication.

I. Background

Plaintiff Melissa R. Bloom (“Bloom”) brought this action against Defendant Hartford Life and Accident Insurance Company (“Hartford”) for wrongful termination of long-term disability benefits pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Bloom was a speech pathologist and participant in an employee welfare benefit plan established by her employer. As such, Bloom had coverage for long-term disability benefits under a group insurance policy issued by Hartford, which served as the claim administrator for the plan. The policy provided Hartford with “full discretion and authority” to determine entitlement to disability benefits under the plan, which stipulated payment of such benefits on a participant's satisfactory and continued proof of disability. Under the policy, disability was defined as follows:

Disability or Disabled means You are prevented from performing one or more of the Essential Duties of:

1) Your Occupation during the Elimination Period;

2) Your Occupation, for the 24 month(s) following the Elimination Period, and as a result Your Current Monthly Earnings are less than 80% of Your Indexed Predisability Earnings; and

3) After that, Any Occupation.

Further, the policy defined “Your Occupation” as:

Your Occupation means Your Occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job You are performing for a specific employer at a specific location.

On March 17, 2009, Bloom suffered a “transient ischemic attack”—i.e., a mini-stroke—or some other cerebralvascular accident while driving with her son. She checked in at the hospital and complained of weakness and numbness in her right-side and slurred speech. Besides some right-sided numbness, her symptoms had resolved by the time she was evaluated. The hospital conducted an EEG and MRI and CT scans of the brain. The EEG registered normal and the MRI and CT scans each registered negative. Bloom was deemed “neurologically stable” by the treating neurologist, Dr. Shiftan, and was released from the hospital on March 20, 2009.

On January 28, 2010, Bloomed discontinued work as a speech pathologist. Dr. Shiftan, who remained her attending physician, diagnosed Bloom with “late effects” of a cerebrovascular accident, with a secondary diagnosis of “complex partial seizures” resulting in fatigue, memory loss, and right-sided weakness and numbness. He reported that Bloom had no physical defects, but she had cognitive impairment due to memory deficit and dysphasia (trouble communicating). As a result, Bloom applied to Hartford for long-term disability benefits in June 2010. After reviewing her application and concluding that Bloom could not work due to uncontrolled seizure activity, Hartford approved Bloom's claim on August 3, 2010.

In an initial telephone interview with Hartford, Bloom reported her seizures as “hit or miss,” and noted that they “var[ied] from day to day.” Further, she stated that on days when she did not have a seizure she was able to perform most tasks independently. In light of what Hartford determined were “subjective complaints of seizures,” however, video surveillance was conducted on Bloom on November 29 and 30, 2010. During these two days, Bloom was recorded driving nearly 90 miles, much of the time alone. She shopped, performed various errands, and visited with friends. There was no evidence that Bloom suffered a seizure or that she was restricted from completing physical or focus-oriented tasks, like driving, during the period she was under surveillance. In a follow-up interview conducted by a Hartford investigator Bloom was shown the surveillance video, but she defended that it was consistent with her original statements that her seizure activity was sporadic and she was capable of performing most activities independently on days when they did not occur.

On May 18, 2011, Hartford referred Bloom to an independent medical examination (“IME”) performed by Dr. Grossman, a neurologist. After examining Bloom and reviewing her medical records, Dr. Grossman concluded that Bloom “should be able to work full-time without restrictions ....” Dr. Grossman noted that her neurological exam was normal and the diagnosis of her treating physician, Dr. Shiftan, was “strictly subjective” and “primarily historical only.” He stated he was “hard pressed to consider and agree with [Dr. Shiftan's] diagnosis” without objective evidence to substantiate Bloom's subjective complaints. Dr. Grossman also reviewed the surveillance video and found that Bloom's manipulative capacity was normal and her manual dexterity was excellent.

Hartford sent Dr. Shiftan a copy of the IME report on June 1, 2011 and requested his comments, but it did not receive a response. Therefore, on June 28, 2011, Hartford notified Bloom of its decision to terminate her benefits. In its denial letter, Hartford detailed the findings of the surveillance video and Dr. Grossman's report, and it concluded that Bloom did not establish she was no longer prevented from performing the essential duties of her job, and therefore, she did not meet the policy definition of disability. Hartford informed Bloom of her right to appeal its decision, which she did on July 12, 2011.

In her appeal letter, Bloom emphasized the sporadic nature of her seizures and their manifestation as a cognitive deficit, not a physical incapacitation. Furthermore, Bloom claimed that she experienced “auras” before a seizure would occur, and thus, she would avoid activities she otherwise would be capable of doing during those times, like driving. Bloom included testimonial letters from family and friends attesting to her seizures and her cognitive problems. Additionally, Bloom submitted a letter from Dr. Shiftan, in which he stated that Bloom experienced “frequent seizures” and was unable to work due to difficulty with speech and concentration. He noted in the letter that Bloom's ambulatory EEG taken during her initial incident was abnormal.

In evaluation of Bloom's appeal, a medical records review was performed at Hartford's request by Dr. Engstrand, a neurologist. Dr. Engstrand reviewed Bloom's medical files, including past reports by Dr. Shiftan and the IME by Dr. Grossman, and watched the surveillance video. Dr. Engstrand attempted to contact Dr. Shiftan on numerous occasions to consult with him about Bloom's condition, but Dr. Shiftan did not return her calls. In a report issued on October 5, 2011, Dr. Engstrand concluded that Bloom was “not functionally impaired or limited in any way.” She stated that while Bloom may have suffered an episode of “transient right-sided weakness”—albeit unclear whether it was a stroke, cerebralvascular accident, seizure activity, or a complex migraine—her condition and functional ability were excellent and there was “no evidence of cognitive impairment.” She characterized Bloom's reports of seizures as “subjective,” and found that they were inconsistent with her clinical findings. She finished by stating that Bloom could work “an eight hour work day, 5 days a week on a continuous basis without restrictions and limitations.”

On October 6, 2011, Hartford denied Bloom's appeal, stating that “there does not appear to be any clinical or radiographic evidence that [she] actually suffers from seizures.” Bloom brought this suit claiming that Hartford's decision to terminate her benefits was wrong and arbitrary and capricious, and that Hartford failed to provide Bloom a full and fair review of her claim. Particularly, Bloom contends: (1) the administrative record contains evidence of Bloom's disability; (2) Hartford failed to obtain objective evidence supporting Bloom's disability, namely, her abnormal ambulatory EEG and a failure to conduct a neuropsychological exam; (3) Hartford improperly initiated surveillance and used the surveillance video as a basis for her benefits-termination; (4) Hartford failed to acknowledge consideration of Bloom's Social Security Disability (“SSD”) award in its termination letter in violation of company policy; and, (5) Hartford failed to employ a “perfection statement” to notify Bloom of information absent from the administrative record. Bloom requests that the Court reverse Hartford's determination and reinstate her long-term disability benefits, or in the alternative, remand the case back to Hartford to reconsider her claim with additional evidence.

In response, Hartford contends that Bloom did not prove she was disabled under the plan, and it was not wrong to credit the surveillance video and opinions of two independent doctors over Bloom's subjective complaints and the reports of her treating physician. Furthermore, Hartford maintains...