Gross v. Sun Life Assurance Co. of Canada
| Decision Date | 06 January 2012 |
| Docket Number | CIVIL ACTION NO. 09-11678-RWZ |
| Parties | DIAHANN L. GROSS v. SUN LIFE ASSURANCE COMPANY OF CANADA |
| Court | U.S. District Court — District of Massachusetts |
ZOBEL, D.J.
Plaintiff brings this action against Sun Life Assurance Company of Canada ("Sun Life") under section 502 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), for wrongful denial of long term disability insurance benefits ("LTD benefits"). Before me are cross-motions for summary judgment on the administrative record (Docket ## 40, 44).
Plaintiff worked as an office manager and optician at Visionfirst, SLAC 1247, 1259,1 which offered its employees a long term disability plan ("the Plan") insured by Sun Life. SLAC 2487-2534. She participated in the Plan and qualified for LTD benefits if, because of "injury or sickness, [she was] unable to perform the Material and Substantial Duties of [her] Own Occupation." SLAC 2498. The parties agree that thephysical aspects of her occupation were properly classified as "light work." SLAC 2575, 1069.2
In October 2006, at the age of 34, plaintiff filed a claim for LTD benefits as of August 2006 based on reflex sympathetic dystrophy ("RSD"), fibromyalgia, and headaches.3 SLAC 1259-63, 1277. In support of her claim, she provided medical records from her past and current treating physicians, including Dr. Rita Egan. Dr. Egan also completed an Attending Physician's Statement, which described plaintiff's physical limitations as permanent and the only treatment as "medications." SLAC 1277, 1281. Dr. Egan limited the amount of time plaintiff could perform certain activities daily as follows: standing/walking (1-4 hours), sitting (1-3 hours), and driving (1-3 hours). SLAC 1279. She also indicated that plaintiff had no ability to push, pull, crawl, grasp, use her right hand or firmly grasp with the left hand, and had little to no ability to bend, squat, climb, twist her body, balance, kneel, or reach. Id. She further described plaintiff's "physical impairment" as "severe limitation of functional capacity; incapable of minimum (sedentary) activity." Id.
Plaintiff also submitted the results of a February 19, 2007 "functional capacity evaluation" ("FCE"), conducted by physical therapist Chris Kaczmarek, which she arranged at her own expense. Kaczmarek concluded that plaintiff could not work based on her functional level. SLAC 3155. Among other things, Kaczmarek cited how plaintiff "ambulated into the clinic with a very erratic pattern characterized by poor foot control and frequent dragging of toes," described her poor balance, and several times noted that her right arm was "limp" and unable to be used or tested. SLAC 3147, 3149. Kaczmarek also cited plaintiff's report that she was "utilizing an assistive device for ambulation," required "usage of her left arm for pulling herself out of a chair," and was unable to "perform an unassisted squat to the ground safely without falling and not being able to get up from the ground." SLAC 3149.
Loretta Dionne, R.N., and Dr. James Sarni reviewed plaintiff's claim and medical files on behalf of Sun Life. SLAC 3064-67; 3096-98. Neither confirmed a finding of RSD, CRPS, or fibromyalgia. SLAC 3067, 3098.4 In January 2007, Dr. Sarni recommended that plaintiff be evaluated by a neurologist, who "should be able to comment intelligently upon the right upper extremity and whether or not they believe it is consistent with complex regional pain syndrome or RSD and what steps could be taken to both diagnose and treat it." SLAC 2098.
Accordingly, Sun Life arranged for plaintiff to undergo an Independent Medical Evaluation ("IME") by neurologist Dr. Rukmaiah Bhupalam on February 22, 2007. In his report, Dr. Bhupalam noted that plaintiff's "sensory exam appears to be functional" and "there is no conclusive evidence for complex regional pain syndrome[.]" SLAC 748. He also noted, however, that she had "tenderness and weakness all over," needed "significant assistance and support even [in] moving from [the] chair to examination table," and was unable to use her right hand. Id. Dr. Bhupalam further described his observation of plaintiff's motor skills:
[H]er husband has to help her from lying to sitting position, sitting to lying position, and also moving from chair to bed, and she could not move her leg on her own. On examination, she has considerable "weakness" in right upper and lower extremities. She could not lift right upper extremity above her shoulder. . . . She could not perform finger-to-nose testing in the right upper extremity. On station and gait testing, she had considerable difficulty getting up from sitting position to standing; however, her husband was sitting close by. She slid herself off the examination table, was able to balance herself with difficulty. Her husband was helping her through[out] the examination. She tended to lean towards right or left side and tended to fall. She was not able to stand still without support. She did take a few steps sliding one leg after the other in a form of astasia/abasia,5 appeared to be functional gait.
SLAC 745-46. He recommended that she receive "behavioral specialist/ psychologist/ psychiatric care" because she "probably has emotional factors that could be contributing to her pain symptomatology." SLAC 748. Dr. Bhupalam concluded that plaintiff was unable to return to her prior occupation and was "totally disabled even for sedentary work even on a part time basis." Id.
In the meantime, Sun Life conducted video surveillance of the plaintiff over three days in November 2006, and over six days in January and February 2007—including on February 22, the day of the IME. SLAC 90-99; 616-21; 677-89. Among other things, surveillance shows plaintiff driving alone for extended periods of time (e.g., 1 ½ hours, SLAC 94; 2 hours, SLAC 679), including driving for four hours in one day, without stopping on the two-hour return trip, SLAC 683. The footage also shows her kneeling down to the lower level of shelves and turning while extending her arms overhead to retrieve items while shopping, SLAC 619; entering and exiting her car, walking quickly, and walking 75 to 100 feet at a highway rest stop, all without assistance or apparent difficulty, SLAC 678-79, 683; and pumping gas with her right hand while standing and shifting her weight between her feet, SLAC 678-79. Both the four-hour drive and the gas-pumping incident occurred on the day before the IME. On the day of the IME, surveillance shows plaintiff leaving her residence with her husband who drove her to the appointment and exiting the doctor's office in a wheelchair being pushed by her husband, SLAC 680-81. Upon plaintiff's return home, however, surveillance shows her standing up without the assistance of her husband. SLAC 682.
Sun Life sent the video surveillance to Dr. Bhupalam on March 20, 2007.6 After review of the surveillance footage, Dr. Bhupalam issued an April 5, 2007 addendum to his initial report, in which he noted the discrepancy between plaintiff's appearance andactivity at the IME and while under surveillance. SLAC 794. He explained that his previous report was based on an office examination of plaintiff, but that, even at the time of the IME, "there were questions about validity of her sensory examination and motor examination, especially with weakness and inability to use her right upper extremity and inability to transfer from the bed to the chair and bed to examination table, etc. and requiring full assistance." SLAC 794. By contrast, on the surveillance videos:
It does appear that she can use both upper and lower extremities quite well and her gait also appears to be normal, and she does not appear to be in any pain or discomfort in the video recorded on February 21, 2007 just a day before my evaluation in the office. Even on the videos that were done in November and January, it appears that she can function quite well based on my review of the video.
Id. Dr. Bhupalam concluded that plaintiff "can function quite well and probably will be able to return to her previous occupation as a manager in a multi physician ophthalmology and optometric office." Id.
Around April 10-11, 2007, Sun Life consulted with Dr. William Hall who—after reviewing plaintiff's claim file, including all medical information and surveillance footage—agreed with Dr. Bhupalam's revised conclusions. SLAC 879-85. While Dr. Hall found that plaintiff's medical records supported "her reported subjective symptoms" and "provisionally" supported a diagnosis of RSD in plaintiff's right arm and hand, SLAC 884, those records did not identify any new or worsening symptoms reported when plaintiff's claimed disability began, id. Moreover, "surveillance videography . . . compellingly weighs against, provisional medically limiting diagnosis [of] RSD [in the]right arm and hand and corresponding right arm and hand activity restrictions." SLAC 885. Dr. Hall also concluded that plaintiff's records failed to "provide compelling support" for a diagnosis of fibromyalgia and did not "substantively address [a] diagnosis of chronic, ocular or transformed migraine." SLAC 884-85.
In an April 23, 2007 letter, Sun Life notified plaintiff that it had denied her claim, and explained the review process and conclusions reached by nurse Dionne, and Drs. Sarni, Bhupalam, and Hall. SLAC 813-19. Sun Life also explained that plaintiff's activities while under surveillance "show a capacity for activity that far exceeds the activity described on your completed claim forms." SLAC 816. Following a 60-day extension, plaintiff appealed the denial on December 19, 2007. SLAC 926-74. She argued that Sun Life unreasonably credited the opinions of its own medical professionals and Dr. Bhupalam's second opinion over the findings and opinions of her healthcare providers and therapist Kaczmarek, SLAC 943-57, and...
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