Scott v. PNC Bank Corp. & Affiliates Long Term Disability Plan

• Decision Date: 28 June 2011
• Docket Number: Case No.: WDQ-09-3239
• Court: U.S. District Court — District of Maryland
• Parties: FLORENCE E. SCOTT, Plaintiff, v. PNC BANK CORP. & AFFILIATES LONG TERM DISABILITY PLAN, Defendant.

FLORENCE E. SCOTT, Plaintiff, v. PNC BANK CORP. & AFFILIATES LONG TERM DISABILITY PLAN, Defendant.

Case No.: WDQ-09-3239

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: June 28, 2011

REPORT AND RECOMMENDATION

This Report and Recommendation addresses the Motion Requesting Attorney's Fees and Costs, EFC No. 43, that Plaintiff Florence E. Scott filed, along with a Memorandum in Support, ECF No. 43-1; and the Opposition to Plaintiff's Motion for Attorney's Fees and Costs, EFC No. 46, that Defendant PNC Bank Corporation and Affiliates Long Term Disability Plan ("the Plan") filed.¹ Plaintiff has not filed a reply, and the time for doing so has passed. See Loc. R. 105.2. Having reviewed these filings, I have determined that a hearing is unnecessary. See Loc. R. 105.6. For the reasons stated herein, I recommend that Plaintiff's Motion Requesting Attorney's Fees and Costs be DENIED WITHOUT PREJUDICE.

I. FACTUAL AND PROCEDURAL HISTORY

When Plaintiff, a PNC employee, experienced "numbness and pain in her arms, hands, and neck," she went to her treating physician, Dr. Alvin Antony, who opined that she had "'cervical radiculopathy'" and "'right cubital tunnel syndrome.'" Feb. 15, 2011 Mem. Op.("Mem. Op.") 2-3 (quoting Admin. Rec.), EFC No. 40. Plaintiff had surgery to address her pain but, when it continued, she saw another physician, Dr. Myles Brager, who said that Plaintiff would "'need anterior cervical surgery to decompress the C5-6 and C6-7 levels,'" but that she could not "'tolerate another surgery.'" Id. at 4 (quoting Admin. Rec.). Dr. Brager opined that Plaintiff "was currently unable to work." Id. at 5.

Plaintiff applied for long-term disability benefits through her employer's plan, PNC Bank Corporation and Affiliates Long Term Disability Plan, Defendant to this action. Mem. Op. 1. The Plan administrator referred the file to Dr. Robert Pick for review. Id. Dr. Pick tried unsuccessfully to contact Dr. Brager and then, based on his review of Plaintiff's file, but contrary to Dr. Brager's opinion, "concluded that there was 'no objective medical information in the records to support the employee's complete inability to work.'" Id. (quoting Admin. Rec.). The Plan administrator determined that Plaintiff was not entitled to long-term disability benefits and denied her request for benefits. Id. at 5.

Plaintiff filed an administrative appeal and submitted additional medical records. Id. at 6. The Plan administrator referred her file to an independent orthopedic surgery specialist, Dr. William Andrews, who also tried to contact Dr. Brager without success and then found, contrary to Dr. Brager's finding, that Plaintiff's condition "'would not preclude work capacity.'" Id. at 78 (quoting Admin. Rec.). Again, without reconciling these contradictory findings, the Plan administrator denied Plaintiff's appeal. Id. at 8.

Thereafter, Plaintiff filed an action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, seeking a court order for long-term disability benefits from the Plan. EFC No. 2. Both parties moved for summary judgment, EFC Nos. 32 & 36, and the Court denied both motions. Mem. Op. 19; February 15, 2011 Order, ECF No. 41.Noting "the Plan's failure to address adequately Scott's evidence or contact Dr. Brager," and reasoning that "the decision to credit [the independent orthopedic surgery specialist] over Scott's treating physician may have been an abuse of discretion," the Court remanded the claim to the Plan administrator for a "full and fair review." Mem. Op. 15, 19. Before the Plan administrator issued its reconsideration, Plaintiff moved for attorney's fees and costs.

The Plan administrator issued its reconsideration on June 2, 2011 ("Recons."), upholding its previous decision. ECF No. 53. The Plan administrator explained that Ms. Scott's file was referred to two board-certified orthopedic surgeons and a third physician, who is board-certified in Physical Medicine and Rehabilitation. Recons. 2. They all reviewed Ms. Scott's medical records. Id. at 2-4. One physician spoke with Dr. Brager and one of Ms. Scott's other physicians, one only spoke with Dr. Brager, and one did not succeed in reaching Dr. Brager and instead relied solely on the existing medical documentation. Id. Based on their reports and Ms. Scott's medical records, the Plan administrator found:

There is no objective medical information in the records to support that Ms. Scott is unable to work after recovering from her surgery. The symptomatology does not validate the clinical condition. . . . There was no documentation in the medical records to support the need for the surgery and why Ms. Scott['s] condition would limit her ability to perform her job duties or activities of daily living.

Id. at 5. The Plan administrator concluded:

Ms. Scott is not entitled to benefits under the Plan because, although some subjective findings were referenced, no physician provided documentation to establish that the subjective complaints were so severe as to restrict, limit or otherwise completely prevent Ms. Scott from performing the essential functions of her sedentary occupation as of February 17, 2009.

Id.

II. DISCUSSION

Plaintiff, relying on 29 U.S.C. § 1132(g)(1), insists that she is entitled to all expenses and attorney's fees that she has incurred in this proceeding. Pl.'s Mot. 1. Defendant argues that the Court's denial of Plaintiff's Motion for Summary Judgment bars a claim for attorney's fees because the Court's remand to the Plan administrator is not "success on the merits," and the factors to consider in determining whether attorney's fees are appropriate, outlined in Quesinberry v. Life Insurance Co. of North America, 987 F.2d 1017, 1029 (4th Cir. 1993), do not weigh in favor of ordering attorney's fees in this matter. Def.'s Opp'n 2.

29 U.S.C. § 1132(g)(1) provides that, with exceptions not relevant here, "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party" in an ERISA action "by a participant, beneficiary, or fiduciary." To recover attorney's fees pursuant to 29 U.S.C. § 1132(g)(1), the party requesting attorney's fees need not be a "prevailing party," but the party must be able to show "some degree of success on the merits." Hardt v. Reliance Std. Life Ins. Co., 130 S. Ct. 2149, 2158 (2010). Hardt is instructive.

Ms. Hardt experienced neck and shoulder pain, which was diagnosed as carpal tunnel syndrome. Id. at 2152. She sought long-term disability benefits from her employer, and the plan administrator denied her application for benefits. Id. at 2150. Ms. Hardt filed an administrative appeal, resulting in an award of temporary disability benefits. Id. Near the close of the temporary disability award, Ms. Hardt experienced additional symptoms and applied for long-term disability benefits, but the plan administrator denied her application. Id. at 2153. She subsequently filed another administrative appeal. Id. The physician reviewing her medical file, which included an updated evaluation, opined that Ms. Hardt was not entitled to long-term disability benefits as her health eventually would improve. Id.

After exhausting all administrative remedies, Ms. Hardt filed a complaint in the United States District Court, claiming that the plan violated ERISA by wrongfully denying her request for benefits. Id. The parties each moved for summary judgment, and the court denied both motions. Id. at 2154. The district court remanded the claim to the plan administrator to reconsider, and stated that in the event that full reconsideration under the requirements of ERISA did not occur within thirty days, the court would be inclined to enter judgment in Ms. Hardt's favor. Id. at 2150. Upon review, the plan administrator issued an award for benefits. Id. at 2154. Thereafter, Ms. Hardt filed a motion seeking attorney's fees. The district court awarded attorney's fees on the basis that Ms. Hardt was a prevailing party. Id. at 2150. On appeal, the Fourth Circuit vacated the fee award, holding that a party must prevail in order to obtain attorney's fees, and that Ms. Hardt did not prevail. Id.

The Supreme Court held that 29 U.S.C. § 1132(g)(1) does not require prevailing party status to obtain attorney's fees, id. at 2157, explaining: "A court 'in its discretion' may award fees and costs 'to either party,' as long as the fee claimant has achieved 'some degree of success on the merits.'" Id. at 2151-52 (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)). It cautioned that "some degree of success" is "not satisfied by achieving 'trivial success on the merits' or a 'purely procedural victory.'" Id. (quoting Ruckelshaus, 463 U.S. at 688). A party achieves "some degree of success . . . . if the court can fairly call the outcome of the litigation some success on the merits without conducting a 'lengthy inquiry into the question whether a particular party's success was 'substantial' or occurred on a 'central issue'" Id. (quoting Ruckelshaus, 463 U.S. at 688). The Court reasoned that the legislative intent was not to abandon completely the American Rule—that each party bears its own litigation costs—, but to providethe court with broad discretion in awarding attorney's fees to either party upon the showing of some success. Id.

The Supreme Court noted that the success in Hardt consisted of a court order requiring the plan administrator to reconsider Ms. Hardt's claim for benefits, with the restriction that further court action—likely in Ms. Hardt's favor—would ensue if the plan administrator did not adequately reconsider the claim. Id. at 2158-59. As well, the ultimate result was a reversal of the previous denial, and an award of benefits, which was the exact relief Ms. Hardt sought in pursuing a court action. Id. Additionally, the Supreme Court noted that the district court, after reviewing Ms. Hardt's medical records, found "compelling evidence" that she was...