Khan v. Provident Life & Accident Ins. Co.
| Decision Date | 03 May 2019 |
| Docket Number | No. 1:15-cv-00811(MAT)(LGF),1:15-cv-00811(MAT)(LGF) |
| Parties | Farooq KHAN, M.D., Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Robert J. Rosati, Fresno, CA, for Plaintiff.
Matthew D. Miller, Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo, NY, for Defendant.
DECISION AND ORDER
I. Introduction
Farooq Khan, M.D. ("Plaintiff"), represented by counsel, commenced this action pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. ("ERISA"), asserting a claim for declaratory relief requiring Provident Life and Accident Insurance Company ("Defendant") to pay long-term disability benefits to him under the terms of an employer-sponsored individual disability insurance policy ("the Disability Policy"). The case comes before the Court upon the Report and Recommendation ("the R & R") (Docket No. 33) of United States Magistrate Judge Leslie G. Foschio, issued May 2, 2017, regarding Defendant's Motion for Judgment on the Administrative Record (Docket No. 23) and Plaintiff's Motion for Summary Judgment/Alternative Motion for Judgment Pursuant to Fed. R. Civ. P. 52 (Docket No. 25, superseding Docket No. 23). The R & R recommended that both motions be denied and that the matter be scheduled for a plenary bench trial before the assigned district judge. See R & R at 3, 57.
The case was transferred to the undersigned on October 24, 2018 (Docket No. 49). On April 5, 2019, the Court issued an Order (Docket No. 51) finding that the parties had effectively stipulated to having this Court conduct a bench trial based solely on their submissions, in which the Court would make explicit findings of fact and conclusions of law. See Order at 2 (citing O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011) ). The parties were directed to notify the Court in writing confirming that they consented to the Court proceeding as outlined in O'Hara. Id. at 3-4. The Court timely received both parties' consent. See Text Order (Docket No. 52).
For the reasons discussed below, the Court rejects in part and accepts in part the R & R; grants Plaintiff's Motion for Summary Judgment/Alternative Motion for Judgment Pursuant to Fed. R. Civ. P. 52 ; denies Defendant's Motion for Judgment on the Administrative Record; and awards long-term benefits to Plaintiff under the "Your Occupation" and "Any Occupation" provisions of the Disability Policy.
"In an action tried on the facts without a jury ..., the court must find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). These factual findings and conclusions "may appear in an opinion or a memorandum of decision filed by the court." Id. A district court's "[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the ... court's opportunity to judge the witnesses' credibility." Fed. R. Civ. P. 52(a)(6). "[C]onclusions of law and mixed questions," on the other hand, "are reviewed de novo." Connors v. Connecticut Gen. Life Ins. Co., 272 F.3d 127, 135 (2d Cir. 2001) (citing LoPresti v. Terwilliger, 126 F.3d 34, 39 (2d Cir. 1997) ).
The following section constitutes the Court's findings of fact, pursuant to Fed. R. Civ. P. 52(a)(1). The findings of fact are drawn from the Administrative Record.1 "To the extent that any finding of fact reflects a legal conclusion, it shall to that extent be deemed a conclusion of law, and vice versa." Barbu v. Life Ins. Co. of N. Am., 35 F. Supp.3d 274, 280 (E.D.N.Y. 2014).
Plaintiff is a board-certified neurologist with a number of medical issues dating back to at least 2005. Because Plaintiff continued to submit additional medical evidence during his appeal, the records cover a period extending into mid-2014. During that time, Plaintiff was examined in person and treated by at least twelve physicians, seven of whom were specialists in rheumatology: Drs. Frank Lipson, Yan Liu, Simon Carette, Larry Moreland, Ernesto Levy, Joseph Grisanti, and John Stone. No treating provider whose records are contained in the Administrative Record concluded that Plaintiff was capable of continuing to work as a neurologist.
On January 17, 2005, Plaintiff saw nephrologist Dr. George Wu for symptoms of proteinuria
. He had "significant general fatigue" and right knee arthralgia without inflammation. Dr. Wu requested repeat serology regarding Plaintiff's renal function and complement levels. PLA-CL-IDI-000700.
Plaintiff underwent a whole body bone scan
on August 24, 2005, at the request of rheumatologist Dr. Frank Lipson. There are a few handwritten treatment notes from Dr. Lipson in the record, but they are very difficult to read. The radiologist saw "unusual" bone uptake about the proximal tibiae and increased tracer accumulation in multiple small and large joints, which was "striking and may reflect a polyarthropathy." PLA-CL-IDI-000476. An MRI was advised but apparently never performed.
Plaintiff returned to see Dr. Wu on August 26, 2005, regarding his proteinuria
. Dr. Wu noted Plaintiff's history of arthralgia in the knee area. Though the bone scan performed several days before showed increased bone uptake at the tibial-fibular junction, there was no definitive diagnosis of a rheumatological issue. Dr. Wu ordered a battery of renal tests. PLA-CL-IDI-000691-692.
At a February 8, 2006 visit with Dr. Wu, Plaintiff complained of arthralgia, particularly in the right knee. Plaintiff had no active joints or effusions. PLA-CL-IDI-000683-684. Dr. Wu requested additional testing in regard to Plaintiff's proteinuria
. Id.
On October 16, 2006, Plaintiff followed up with Dr. Wu for his proteinuria
. PLA-CL-IDI-000678-679. Dr. Wu reported that in the last year, Plaintiff had symptoms of fatigue, malaise, paresthesia and polyarthralgia. That day, Plaintiff had a red left eye, as his scleritis was active. Dr. Wu noted that scleritis can be associated with Wegener's granulomatosis, polyarteritis nodosa, collagen vascular disease such as rheumatoid arthritis, and granulomatous disease such as sarcoidosis. Dr. Wu requested repeat serological testing.
A total body bone scan
with spectrometry was performed on November 24, 2006, at rheumatologist Dr. Lipson's request. The radiologist reported mild focal uptake in both knees in keeping with arthropathy and "[a]ctivity also in keeping with arthritic change noted in both sternoclavicular joints and small joints of both hands and feet." PLA-CL-IDI-000473. There was no definitive diagnostic impression. Dr. Lipson ordered certain lab work done in 2005, which revealed that Plaintiff's anti-nuclear antibodies and rheumatoid factor were negative.
In a follow-up with nephrologist Dr. Wu on April 30, 2007, Plaintiff reported that he "feels fatigued," has "occasional pain at the tibial-fibular joint," and was experiencing paresthesia. PLA-CL-IDI-000674. Dr. Wu noted some muscle-wasting
distally. He urged Plaintiff to obtain a nerve conduction study and asked him to repeat the renal function and serological tests. Id.
Plaintiff was referred to rheumatologist Dr. Yan Liu by his former primary care physician Dr. Antoun A.M. Toma.2 In a letter dated August 16, 2007, to Dr. Toma, Dr. Liu recounted that since last year Plaintiff had been developing increasing polyarticular pain involving small and large joints with some morning stiffness. Dr. Liu noted the abnormal repeat bone scan
findings of multi-articular uptake in small and large joints. Dr. Liu observed that although the negative rheumatoid factor and benign joint exam "goes against rheumatoid arthritis
that can manifest as scleritis," he "certainly would keep it within the differential diagnosis." PLA-CL-IDI-000669-670.
On November 26, 2007, Plaintiff was seen in follow-up by Dr. Liu for "small vessel vasculitis
(possibly Wegener's [granulomatosis ] )[,]" the manifestations of which have included red cell casts, scleritis and joint pain. PLA-CL-IDI-000661. Dr. Liu noted that Plaintiff's repeat serology was unremarkable. Id.
Plaintiff saw nephrologist Dr. Wu on January 18, 2008, in follow-up, for diagnoses of proteinuria
and possible microscopic polyangiitis. He did have some occasional elbow pain and right patellar discomfort. Dr. Wu observed "no overt inflammation" and "no active joints." PLA-CL-IDI-000651.
On October 5, 2006, a handwritten note from ophthamologist Dr. Calvin Breslin indicates that he saw Plaintiff for his left eye episcleritis
with limbic keratitis. Dr. Breslin prescribed 60 mg of prednisone which should eventually be tapered to 40 mg. PLA-CL-IDI-000512.
Plaintiff saw rheumatologist Simon Carette, M.D. on March 18, 2009, for assessment of possible vasculitis
. PLA-CL-IDI-001029-1031. Dr. Carette noted that for the past 6 months, Plaintiff had progressive left sub-costal fullness, progressive anorexia, decreased energy, and progressive burning sensations in the hands and feet bilaterally, and enthesitis of the right Achille's tendon, all of which improved significantly with prednisone. On examination, Plaintiff had diffuse erythema of left cornea with significant thinning, no tender or effused joints, and unremarkable neurological findings. Plaintiff's scleritis was noted to be severe, and Dr. Carette determined that an emergency consult with ophthalmologist Dr. Breslin was indicated. Dr. Carette found it "quite difficult to provide a unifying diagnosis" and accordingly requested more bloodwork.
Plaintiff saw Dr. Breslin again on March 19, 2009, at Dr. Carette's request, for Plaintiff's "active scleritis
with corneal thinning of left eye" and inability to taper his prednisone dosage (10 mg) any further. PLA-CL-IDI-000514. Dr. Breslin indicated that Plaintiff...
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