Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Moira Goletz, Plaintiff, v. Prudential Insurance Company Defendants.

) ) ) ) ) ) ) ) )

Civil Action No.: 04-351 SLR

PLAINTIFF MOIRA GOLETZ' ANSWERING BRIEF IN OPPOSITION TO DEFENDANT'S OPENING BRIEF

GRADY & HAMPTON, L.L.C. John S. Grady, Esq (009) Laura F. Browning, Esq (4504) 6 North Bradford Street Dover, DE 19904 (302) 678-1265 Dated: June 24, 2005

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TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................ii TABLE OF CITATIONS...........................................................................iii NATURE AND STAGE OF THE PROCEEDINGS............................................1 SUMMARY OF THE ARGUMENT..............................................................2 ARGUMENT..........................................................................................4 I. II. SCOPE OF THE REVIEW TO BE APPLIED......................................4 PRUDENTIAL DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE IT WAS SELF-SERVING, PROCEDURALLY FLAWED, AND UNSUPPORTED BY SUBSTANTIAL EVIDENCE ......................6 A. DR. BANDERA'S REPORT IS NOT CREDIBLE AND PRUDENTIAL CONTINUES TO USE IT AS A BASIS TO DENY MS. GOLETZ' BENEFITS. ....................................7 PRUDENTIAL IMPROPERLY IGNORED THE FAVORABLE SOCIAL SECURITY DECISION............................................9 PRUDENTIAL IMPROPERLY SOUGHT AND RELIED ON DR. FOYE'S "EXTERNAL FILE VIEW":..........................11 PRUDENTIAL IGNORED HER TREATING PHYSICIAN'S CREDIBLE EVIDENCE.....................................................14 PRUDENTIAL DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT IT FAILED TO ACKNOWLEDGE MS. GOLETZ' SUBJECTIVE COMPLAINTS.........................17 PRUDENTIAL DID NOT HAVE SUBSTANTIAL EVIDENCE TO SUPPORT ITS DECISION, AND THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT GRANTING BENEFITS UNDER THE PLAN..........................19

B.

C.

D.

E.

F.

CONCLUSION......................................................................................22 ATTACHED CASES AFFIDAVIT OF SERVICE

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TABLE OF CITATIONS

CASES

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965 (2003)......................................................................2 Kosiba v. Merck & Co., 384 F.3d 58 (3rd Cir. 2004)..........................................11 Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 (D.Del)...3, 12, 13, 18, 19 Orvosh v. Program of Group Ins. For Salaried Employees of Volkswagen of Am., 222 F.2d 123 (3d Cir. 2000)...............................3, 4, 7 Ott v. Litton Industries, Inc., 2005 WL 1215958 (M.D. Pa. May 20, 2005)...........................................................4, 20, 21 Pinto v. Reliance Standard Life Ins., 214 F.3d 377 (3rd Cir. 2000)..........................................................................4, 13 Russell v. The Paul Revere Life Ins. Co., 148 F.Supp.2d 392 (D.Del. 2001).............................................................................4, 5 Sanderson v. The Continental Casualty Corp., 279 F. Supp.2d 466 (D.Del 2003)..............................................4, 5, 8, 14, 15, 18, 19, 22, 23 Sanderson v. Continental Casualty Corp., 2003 WL 22078075 (D.Del)...................................................................6, 9, 12, 17, 20, 21

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NATURE AND STAGE OF THE PROCEEDINGS

Plaintiff, Moira Goletz, stopped working on May 20, 2000 because of extreme neck pain, arm pain and hand pain. Prudential granted her claim for long-term disability for the first 24 months. On June 24, 2002, Ms. Goletz was informed that her long-term disability benefits would be ceased as of October 29, 2002. On July 29, 2002, she appealed this decision with Prudential and on November 21, 2002 she was denied again her long term disability ("LTD") benefits. In February 2003, Ms. Goletz again appealed the decision and included more medical documents and on May 12, 2003 she was denied a second time. On May 23, 2003, Ms. Goletz' attorney, John Grady, appealed the previous decision again. On March 15, 2004 Prudential made its final decision to deny her LTD benefits. An ERISA action was timely filed on June 3, 2004. On June 10, 2005, Defendant filed its motion for summary judgment, and opening brief in support. This represents Plaintiff, Moira Goletz', answering brief to defendant's opening brief, a statement of facts has been already stated in plaintiff's opening brief.

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SUMMARY OF THE ARGUMENT 1) Defendant is correct that the standard of review is a heightened arbitrary

and capricious standard. However, this Court should give Prudential's decision little to no deference because it failed to properly consider the evidence under the plan, acted in a self-serving manner, and funded the plan. 2) Prudential incorrectly stated in its opening brief that its determination at

every stage of the appeal process was made after review of new medical information. Def. Op. Br., pg. 13. Instead, the record reflected that Prudential openly ignored most if not all of her favorable evidence, which included a SSA decision, Dr. Tamesis August 2003 Report, her treating physicians favorable opinions, and her own credible complaints of pain. "[P]lan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." Sanderson v. Continental Casualty Corp., 2003 WL 22078075 (D. Del), citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 U.S. 1965, 1972 (2003). Even Prudential's opening brief failed to acknowledge her own doctors, SSA decision and her consistent complaints of pain. 3) Prudential in its opening brief improperly relied on Dr. Bandera's flawed

report. It is well established in the record that the report is incorrect, because there is objective evidence to support her complaints of pain. Prudential acted in a self-serving manner by selectively using Dr. Bandera's flawed report over that of her treating physicians credible opinions. Sanderson v. The Continental Casualty Corp., 279 F.

Supp.2d 466, 475 (D. Del 2003). A-575.

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4)

There was objective evidence that she suffered from inflammatory

polyarthritis. Courts do not want administrators to discount subjective complaints when there is objective evidence to support it. Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 *10 (D.Del.), see also, Sanderson, at 476. Ms. Goletz' subjective complaints of pain were not considered despite being a determining factor. A-578. 5) The administrator's denial of long-term benefits was unsupported by

substantial evidence, and therefore can be overturned by this court. Orvosh v. Program of Group Ins. For Salaried Employees of Volkswagen of Am., 222 F.2d 123 (3d Cir. 2000). Prudential claimed that opinions of treating doctors, Social Security Decisions, and a claimant's subjective complaints were suppose to be determining factors. A-578. Yet, Prudential relies solely on Dr. Foye's "external file review", which was not independent. His report was not even based on a physical exam. In particular, Prudential used only portions that supported a denial, and ignored other portions that favored the plaintiff. For example, Dr. Foye wanted to know if there was actually work out there that constituted gainful employment. A-224.

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ARGUMENT

I.

SCOPE OF THE REVIEW TO BE APPLIED.

The Defendant's have admitted that the review is a heightened arbitrary and capricious standard. This Court has ruled that a plan administrator's decision can be overturned if it is not supported by substantial evidence. Sanderson, 279 F.Supp.2d at 472. The Third Circuit has held that, "a plan administrator's decision will be overturned only if it is clearly not supported by the evidence in the record..." Orvosh v. Program of Group Ins. For Salaried Employees of Volkswagen of Am., 222 F.2d 123 (3d Cir. 2000). The court must look at the record as a whole to determine if the plaintiff has met her burden. Ott v. Litton Indus., Inc. 2005 WL 1215958 (M.D. Pa May 20, 2005). Insert.
It is undisputed that Prudential funds the plan that it administers, and therefore, a heightened arbitrary and capricious review should be applied. Sanderson v. The Continental Casualty Corp., 279 F. Supp.2d 466, 472-73 (D. Del 2003). There is a conflict, because Prudential has the motive to deny benefits based on the fact it will save money. A-577. The court should apply a sliding scale as to how much deference it will grant to the administrator. Pinto v. Reliance Standard Life Ins., 214 F.3d 377, 379 (3rd Cir. 2000). "We side with the majority of courts of appeals, which apply a sliding scale method, intensifying the degree of scrutiny to match the degree of conflict." Id. The Delaware District Court commented on the heightened standard in Russell v. The Paul Revere Life Ins. Co.: When an administrator's decision is potentially clouded by a conflict of interest, such as where a ERISA plan administrator also funds the plan it administers, the conflict must be considered in assessing the amount of deference to be given to the administrator's decision; in those circumstances, a modified or "heightened" arbitrary and capricious standard of review is

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appropriate. Russell v. The Paul Revere Life Ins. Co., 148 F.Supp.2d 392, 400 (D.Del. 2001).

In applying the heightened arbitrary and capricious standard, "the court need not give complete deference to the administrator's decision to deny benefits. See id. The court therefore, must `look not only at the result ­ whether it is supported by reasons ­ but at the process by which the result was achieved'". Sanderson, at 473. When applying the arbitrary and capricious review the court is making a, "determination of whether the plan administrator abused its discretion in reaching its decision." Sanderson, at 472. In its opening brief, Prudential claimed that that there was no bias in its decision, thus the court should give them greater deference under the heightened arbitrary and capricious review. However, the record clearly demonstrated that Prudential failed to properly review and factor reliable evidence. As discussed below, Prudential continually acted in a self serving manner and chose to rely solely on the small amount of evidence that could support a denial. The Delaware District court held that the court does not have to accept the decision, "if the administrator uses a self-serving approach to the evidence that selectively relies upon the evidence that supports a denial of benefits, but rejects the evidence that supports the granting of benefits." Sanderson, at 473. The Sanderson court found that evidence of the administrator's severe conflict and self-serving actions required the court to reject the administrator's decision and rule that it was arbitrary and capricious standard. Sanderson, at 477. For the reasons stated below, Prudential acted in a self-serving manner by completely ignoring credible evidence and relying on only a small amount of evidence that would support a denial. Every time Prudential was faced with credible evidence that Ms. Goletz was unable to work at any occupation, it actively sought any evidence it could find, no

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matter how unreliable it was to deny her claim. Prudential also ignored a favorable Social Security decision. Prudential selectively used the reports of its consultant Dr. Patrick Foye, while it ignored the portions that questioned her ability to find gainful employment. Prudential also ignored her constant complaints of severe pain despite the overwhelming objective evidence that supported them. Therefore this court should give little to no deference in making its decision. Prudential's decision was arbitrary and capricious.

II.

PRUDENTIAL DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE IT WAS SELF-SERVING, PROCEDURALLY FLAWED, AND UNSUPPORTED BY SUBSTANTIAL EVIDENCE

This court should give Prudential's decision to deny Ms. Goletz' benefits little to no deference given the fact that it completely ignored Ms. Goletz's creditable evidence, and specifically relied on flawed evidence such as Dr. Bandera's "IME.". Prudential in its opening brief argued that it considered all documentation supplied to them and the documentation did not support a "physical or mental impairment that would prevent plaintiff from performing sedentary work." Def. Op. Br., pg. 12. In support, Prudential claimed that its decision was supported by the record and specifically cited Dr. Bandera's report in support of this contention. However, a review of the record shows that

Prudential did not in fact consider all Ms. Goletz' credible evidence as the law requires. Sanderson v. Continental Casualty Corp., 2003 WL 22078075 *2 (D. Del). Nor did it properly consider her other credible evidence that the plan uses a factor--treating doctors opinions, favorable SSA decision, objective medical evidence of poly arthritis, and complaints of pain. A-577-58.

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In its opening brief, Prudential gave no explanation on "how" or "why" they reviewed or credited evidence. Instead, Prudential gave the blanket explanation that, "[e]ach appeal submission was evaluated and determined on its own merits..." Def. Op. Br., pg. 13. What the record showed was that every time Prudential was faced with credible evidence that Ms. Goletz was unable to work at any occupation, it actively sought any evidence it could find, no matter how unreliable it was to deny her claim-- like Dr. Bandera's report. Viewing all of the evidence Prudential had before it, it is clear that there was not substantial evidence for its decision. Prudential's decision was arbitrary and capricious, and the record supports Ms. Goletz.

A. DR. BANDERA'S REPORT IS NOT CREDIBLE AND PRUDENTIAL CONTINUES TO USE IT AS A BASIS TO DENY MS. GOLETZ' BENEFITS.

In its opening brief, Prudential cited Dr. Bandera's report as a basis to uphold its decision. Def. Op. Br., pg.12. In addition, Prudential cited Dr. Bandera's report in every appeal denial letter. A-82, A-93, A-104. Prudential wrote, "In particular, an IME was performed on plaintiff by Dr. Bandera. As a result of that IME, Dr. Bandera opined that plaintiff had the ability to perform at least a light duty job." Def. Op. Br.-12. Dr. Bandera is not a treating physician and has worked for Prudential before in determinations. A-576. In his report, Dr. Bandera incorrectly opined, "in reference to her multiple complaints, her current objective finding noted during examination was trace swelling of the hands and left extensor hand tendonitis. She has multiple subjective complaints which do not correlate objectively". A-213. It is this language that Prudential

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improperly relied on through the appeals process and even in their opening brief. Def. Op. Br.-4. The record has been well established through the medical records, Dr. Tamesis' August 2003 report, and Dr. Foye's file review that Dr. Bandera's report is incorrect, because there is objective evidence that correlated with her complaints. In 2004, Dr. Foye wrote that, "from the combination of the physical exam findings by Dr. Tamesis and also the evaluation by Dr. Bandera, and also the blood work results, overall it does appear most likely that claimant does have some type of inflammatory poly-arthritis, although she is sero-negative for rheumatoid arthritis..." A223-24. This is objective evidence to support Ms. Goletz complaints, contrary to Dr. Bandera's report. In an August 2003 report, Dr. Tamesis, her treating rheumatologist, elaborated on how Dr. Bandera's report is flawed. "Dr. Bandera indicated in his report that Ms. Goletz suffers from negative inflammatory arthritis which is incorrect. Her correct diagnosis is seronegative rheumatoid arthritis."A-254. Dr. Tamesis wrote about how there was trace swelling despite the use of various analgesics. A-254-55. Dr. Bandera wrote: At the time of Ms.Goletz' October 2002 evaluation with Dr. Bandera, she was receiving treatment of chronic steroid therapy including Methotrexate, a potent immunosuppressive agent. Prior to the use of these immunosuppressive agents, there was significant joint synovitis and soft tissue swelling of her hands, which have showed some improvement with therapy. Despite the use of various analgesics, her pains remain significant. Dr. Bandera provided his opinion based on the evaluation of a patient that had been receiving potent immunosuppressive treatment. A254. Prudential had repeatedly stated in the May 2003 denial letter and process that it wanted her physicians to address Dr. Bandera's Report. A-94-95. This was clearly a red

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herring, because when that information was supplied to Prudential in the Fall of 2004, it completely ignored the report by Dr. Tamesis. A-105-106. This was improper. Even in the opening brief, Dr. Tamesis report is not cited one time, yet Prudential argued in its brief, "these physicians either declined to respond or submitted narratives that did not address the comments related to the IME that was performed." Def. Op. Brf, 12. The record showed that he did submit a new report to them during the third appeal process. A-100, A-254. The only logical conclusion is that Prudential was merely giving Ms. Goletz a false pretext for declining her benefits and ignoring both her physician's favorable opinions in the Spring of 2003. Prudential may not ignore Dr. Tamesis August 2005 report, especially when it asked for it. This should not be allowed under Sanderson, which adds that Prudential must consider credible evidence, even treating physicians. Sanderson, 2003 WL 22078075 at *2. Even the procedures of the plan required that Prudential truly consider Dr. Tamesis' opinion. A-578. Prudential's determination was self-serving and must be found to be arbitrary and capricious.

B. PRUDENTIAL IMPROPERLY IGNORED THE FAVORABLE SOCIAL SECURITY DECISION In its opening brief, Prudential failed to cite why it did not consider Ms. Goletz' favorable Social Security decision. In the May 2004 denial letter, Prudential claimed that it will keep her file open indicating that this would be evidence on whether or not Ms. Goletz was disabled under the plan. A-95. Social Security decisions are a factor in the determination process under the plan. A-578. Yet, despite getting a favorable Social

Security decision, Prudential denied her claim. More shocking is the fact the record showed

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that Prudential completely ignored her SSA evidence and did not use it as a factor to make its final decision. Ms. Goletz' SSA decision had testimony and additional medical evidence. A-226-36. In Ms. Goletz' favorable Social Security Decision dated November 19, 2003,

the ALJ found her credible and that she was unable to work. The ALJ noted that she had problems doing daily activities because of the pain she experienced. A-231-32. The ALJ also noted that her hands were swollen at the hearing and she moved "stiffly." A-231. In Prudential's May 2003 denial letter, Prudential stated it was going to leave her case open to follow her Social Security Hearing. A-95. In the final 2004 denial letter, Prudential wrote, "Prudential must evaluate claims based on the terms of the Group Policy independent of the Social Security Administration." A-106. In that same final denial letter Prudential also wrote, "In addition our records indicate that you are currently waiting on the status of your appeal for Social Security Disability Benefits with Administrative Law Judge. Therefore, we will keep your claim active and will follow up on the status of the hearing." A-106. Prudential wrote this in the same denial letter that stated it had received the favorable decision. A-106. This is overwhelming evidence that Prudential gave SSA decision absolutely no weight or consideration. Therefore it violated its own procedures that SSA decisions are to be a factor. A-578. In addition, there are no notes in 2004 discussing the SSA benefits in relations to its decision to deny benefits other than the confusing statements written in the denial letter. Again, this is just further evidence that Prudential's decision should be given little to no deference give the enormous amount of procedural flaws and conflicts of interest. The self-dealing is apparent, and showed that Prudential's decision was arbitrary and capricious.

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C. PRUDENTIAL IMPROPERLY SOUGHT AND RELIED ON DR. FOYE'S "EXTERNAL FILE REVIEW". In December 2003, the Administrative record supported a favorable decision for Ms. Goletz. All of her treating physicians opined that she could not work, Dr. Tamesis

contradicted Dr. Bandera's report as requested, the SSA gave a favorable decision, and there was objective evidence to establish Ms. Goletz' complaints of pain. Instead of granting Ms. Goletz' benefits, Prudential sought out additional evidence to support a denial in what Prudential called an "external file review." This report was in no way independent as Dr. Foye had been consulted before on Ms. Goletz case and can only be seen as Prudential's hired gun. A-56. In a self-serving manner, Prudential was seeking any evidence to support its decision to deny Ms. Goletz. Thus, Prudential turned to its $300 an hour consultant, Dr. Foye. A-576. First, the timing of this "external file review" should be questioned and cause this court to give less deference to Prudential's decision. The court should look to the recent case of Kosiba v. Merck & Co.¸384 F.3d 58, cert. denied, Merck & Co., Inc. v. Epps-Malloy, ---S.Ct.----, 2005 WL 192218 (May 16, 2005). There Third Circuit questioned the timing of an IME that it was done only after the appeals process began and when her treating physicians offered their "unequivocal support of her claims." Merck¸ at 68. Here, the record was in favor of Ms. Goletz, yet Prudential sought out an "external file review." Second, this court should also find Prudential's use of Dr. Foye's report troubling. It is clear that Prudential only used the portions that would support a denial. For example, Prudential failed to acknowledge that Dr. Foye's review undermined Dr. Bandera 2002 report, by noting the objective evidence. Dr. Foye opined from the records that the recurrent inflammation/synovitis would create difficulty for her to repetitive hand activities. A-224.

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Dr. Foye stated that the hand activities would have to be "less than 1/3 of the workday", but Prudential did not disclose that in its denial letter. A-224, A-106. This would mean on a typical 8-hour workday she would have to use her hands less than 2.6 hours a day. However, Prudential made no mention of this. Dr. Foye also stated that she would have problems doing repetitive overhead activities due to chronic neck pain and shoulder pain, "which might be related to her diffuse poly-arthritis." A-224. This was more objective evidence of her complaints of pain. Even though Dr. Foye stated that she would be capable of full time work with these and other restrictions, he questioned if there was any work available to her. A-224. He wrote, "I recommend considering vocational assessment to determine if such work is actually available to her in the workplace, and whether this would represent gainful employment to her." A-224. (Emphasis added). This District court has found it to be self-dealing to use only the portions that support a denial that case also involved Prudential. Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 *9 (D.Del.). There the court wrote, "This apparent willingness to use the helpful portions of Dr. Anthony's testimony while completely ignoring the portions that would support the continuance of benefits is some evidence that Prudential was acting in self-interest." Id. The Mitchell court stated that the court does not have to accept the decision of, "fiduciary that uses a self-serving approach that selectively relies upon the evidence that supports a denial of benefits but rejects the evidence that supports the continuation of benefits." Mitchell, at *8. Therefore, this court can reject Prudential's decision. Finally, Prudential did not conduct a new vocational assessment as suggested by Dr. Foye. A-66. Instead, Prudential relied on the November 2002 vocational assessment using

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Dr. Bandera's restrictions. A-66, A-58, A-106. Had Prudential acted in a neutral manner, it would have conducted a new vocational assessment as Dr. Foye suggested. Dr. Foye stated that she was capable of occasional hand activities that being less than 1/3 a workday (less than 2.6 hours a day). A-224. Whereas, the previous vocational assessment did not have this specific of a restriction. A-213. In the 2002 assessment based on Dr. Bandera's restrictions they stated it, "would consider no more than occasional keyboarding,". The report never defined occasional keyboarding. Also the 2002 assessment stated she was capable of light duty work. A-213. Dr. Foye never stated whether or not she was capable of light duty work; he only stated full time work then questioned if there was anything like that available which would be gainful employment. A-224. Prudential acted improperly by not following the recommendations of its experts and staff. Mitchell, at *9. In Mitchell, a doctor had suggested verifying the pain in a functional capacity test. Id. "This failure to follow advice from its own staff fits squarely into the third factor identified in Pinto, and could also support a finding of self-dealing under the second factor." Id. citing Pinto v. Reliance Standard Life Ins., 214 F.3d 377, 394 (3rd Cir. 2000) . Clearly, Prudential abused its discretion by not conducting a new vocational assessment; instead it claimed that it had already performed one. This is just proof illustrated that Prudential was acting in a self-serving manner and its decision was arbitrary and capricious. Prudential acted improperly by first requesting Dr. Foye's report, then using only the portions that were favorable to a denial, ignoring the portions that undermined Dr. Bandera's report, ignoring the portions that questioned if there was any work out there that would constitute gainful employment given the restrictions, and then failing to conduct a new vocational assessment. Clearly, Prudential's behavior once again was self-serving and

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lacked any neutrality. Thus, Dr. Foye's report alone is not substantial evidence to deny plaintiff's benefits. Its decision was arbitrary and capricious.

D. PRUDENTIAL IGNORED HER TREATING PHYSICIAN'S CREDIBLE EVIDENCE. Throughout the appeals process Ms. Goletz submitted additional opinions from her treating physicians that she was unable to work. The record demonstrates that Prudential did not truly consider her treating physicians' opinions. Under the plan, a treating

physician's opinion was to be considered in the determination process. A-578. Also, this court has established that administrators must consider treating physician's credible evidence. The Court should look to the analysis in Sanderson in finding Prudential's determination flawed and self-serving. Sanderson, at 477. The court noted that Continental was not free to merely disregard her treating physicians' reports and findings in this regard in favor of an outcome more to its liking. More to the point, although Continental may have doubted the reliability of the conclusions or diagnosis of Sanderson's doctors, there is nothing in the record to indicate that Dr. Truchelut's opinion was any more supported or reliable. Sanderson, at 477. Prudential gave no reason why it accepted Dr. Bandera's and Dr. Foye's report over that of her own specialists. This was wrong. The Sanderson court stated that it was impermissible for Continental to use evidence which, "supported a denial of the claimant's benefits while at the same time, ignoring or failing to satisfactorily explained its rejection of evidence supporting an award of LTD." Sanderson, at 477. During the second appeal, Prudential used the pretext that her doctors did not address Dr. Bandera's report. Prudential even stated this in its opening brief. However, Prudential did not explain why it did not accept her doctors' opinions over that of Dr.

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Bandera. The Sanderson court also addressed this lack of explanation. There, the court noted that, "while Continental purported to summarize the information it had before in those letter, it did not engage in any discussion of why it credited certain evidence, or how it reconciled Dr. Truchelut' analysis with that of Sanderson's own treating and examining physician." Sanderson, at 475. Applied to the present case, it is clear that Prudential acted in the same self-serving manner as Continental in the Sanderson case. In the first denial letter, Prudential made no mention of the prior opinions of the doctors that Goletz could not work. A-71. At the time, Ms. Goletz' record showed favorable opinions by Dr. Rowe. A-243-246. The record showed that Dr. Rowe opined that she could not work in early 2002. A-53. However, despite a favorable record and Dr. Rowe's opinion, Prudential ignored it and made the blanket statement she was capable of work. A-54. Ms. Goletz appealed and included additional statements from her doctor's stating she could not work because of pain and spasm. Dr. Rowe used Prudential's own form. A-247. In addition, Dr. Tamesis wrote that Ms. Goletz suffered from inflammatory arthritis. A-246. More telling is the record that showed in November 2002 the claims adjuster only considered Dr. Bandera's report in deciding to up hold its decision. A-60. Prudential should have also considered her doctor's opinions under Sanderson. In addition,

Prudential stated in the report that it had received records from Dr. Schwartz. Clearly, Prudential never read the reports because it would have known that the reports were from Dr. Rowe, who works in same office with Dr. Schwartz. A-247. Dr. Rowe signed the forms. A-247.

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In the second appeal, Dr. Rowe and Dr. Tamesis sent four more reports about Ms. Goletz condition. A-250-53. Dr. Tamesis stated in his January 8, 2003 letter that she was disabled from "any occupation". In a February 18, 2003 letter, Dr. Rowe stated his diagnosis of Ms. Goletz, which included a sprain and degenerative joint disease of the left knee, triangular fibrocartilage tear of the left wrist, right elbow bursitis, cervical and thoracic strain, degenerative disc disease of the cervical spine, and lumbosacral strain. A251. Later in the May 8, 2003 letter, Dr. Rowe stated that Ms. Goletz was using a walker and was unable to work. A-252. Then, Dr. Tamesis provided a more detailed report on May 8, 2003. He stated that he had been following her case since 2001 and that she suffered from seronegative inflammatory arthritis, generalized degenerative joint disease, and bilateral carpal tunnel syndrome. A-253. He elaborated that, "[a]ny inflammatory arthritis can also produce generalized joint pains and stiffness that can involve any joint even in the absence of definite swelling such as pains of the shoulders and hips." A-253. He stated that prior to the steroid therapy she had "significant joint synovitis and soft tissue swelling." A-253. Also, both doctors stated they would be available to discuss her case. It does not appear from the record that Prudential directly contacted Dr. Rowe or Dr. Tamesis. Prudential did note Dr. Tamesis opinions in the second denial letter, however, it stated Tamesis and Rowe did not address Dr. Bandera's report. This was the only reason given on why they accepted Dr. Bandera's report over her own credible doctors reports. However, the May 2003 opinions by her treating doctors addressed her ability to work at any gainful occupation, which was what Dr. Bandera's report was about. Then in August 2003, when Dr. Tamesis did specifically address Dr. Bandera's report, Prudential

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completely ignored it. A-105-06. Dr. Tamesis report is discussed in the sections above, but it must be mentioned that his report addressed the fact that she could not work at any gainful occupation. He made it very clear that she was having problems with daily activities. Prudential's approach to her treating physicians' opinions is completely bias as there is no discussion about the credibility of their opinions. This is clear evidence of bias and self-dealing. In addition, there is substantial evidence to support Ms. Goletz' claim. The plan requires that credible doctor's opinions should be considered. A-578. Prudential failed to consider them. Prudential's decision was arbitrary and capricious.

E. PRUDENTIAL DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT IT FAILED TO ACKNOWLEDGE MS. GOLETZ' SUBJECTIVE COMPLAINTS: Prudential completely ignored Ms. Goletz' complaints of pain in its final denial letter and its opening brief. Prudential admitted that the claimant's complaints are a factor under the plan. A-578. Therefore, Prudential should have given her complaints some weight because it must give credit to reliable evidence. Sanderson, at *2. Throughout the entire appeal, Ms. Goletz continually stated that she was in constant pain. The record reflects that she was on an extensive amount of medication, which included Prednisone, Remicade, Methotrexate, APA with codeine, Vicodin. A-232. In early 2001, she told a Prudential representative that she had shooting pains in her elbow and neck. A109. She stated that the pain prevented her from sitting for long period of times. A-109, A232. Her complaints of pain are well documented in her appeal letters to Prudential representatives, her medical records, Social Security Award letter and her doctors' opinions.

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During the first two appeals, Prudential relied on Dr. Bandera's statement that, "she has multiple subjective complaints which do not correlate objectively." A-84. Both Dr. Tamesis and Dr. Foye undermined Dr. Bandera's opinion based on the fact that her blood results and physical examinations showed that she has inflammatory polyarthritis. This is objective evidence to support her subjective complaints. However, Prudential never

acknowledged her subjective complaints, or gave them credit based on this objective evidence. A-105-106, A-60. In Sanderson, the court noted how the administrator

improperly excluded evidence of her subjective complaints. "Conversely, her subjective complaints of pain appear to have been entirely discounted....[t]he court finds this strong emphasis on objective evidence to the resulting exclusion of the subjective evidence to be improper." Sanderson, 279 F.Supp.2d at 475. In the final denial letter, Prudential never gave any reason why it ignored her subjective complaints of pain after both doctors stated there was objective evidence to support that pain---inflammatory polyarthritis. This is not the first time Prudential has ignored credible subjective complaints. In Mitchell v. Prudential Health Care Plan, there was objective MRI results that supported the claimant's allegations of severe back pain. There, the court stated that Prudential has "entirely discounted" the claimant's complaints. Mitchell, at *10. "The court finds that this strong emphasis on objective evidence to the resulting exclusion of subjective evidence was incorrect." Id. The Mitchell court found that there was, "no reason for Prudential to ignore the fact that the objective findings supported a diagnosis of a back injury or fibromyalgia which could produce Mitchell's subjective complaints of pain." Id.

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Then in Sanderson, the court found that there was objective medical evidence to support the subjective complaints. The court in Sanderson found that it was wrong for the administrator to discount the complaints of pain. Sanderson, at 476. "There was no reason for Continental to ignore the fact that objective findings supported a diagnosis of fibromyalgia which could have produced Sanderson's subjective complaints of pain." Id. Here, Prudential did ignore the complaints of pain despite the objective evidence that supported her complaints. Prudential only stated that, "[b]ased on Dr. Foye's review of the medical records, he notes that Ms. Goletz does appear to have some inflammatory poly arthritis..." A-105-06. However, nowhere in the third denial letter does Prudential

acknowledge any of Ms. Goletz complaints of daily pain that would prevent her from working. In addition, her complaints of neck pain are ignored, even though she was diagnosed with cervical sprain/strain and the MRI shows degenerative disc disease. A-442. From Prudential's notes and letters, it is clear that Prudential did not give Ms. Goletz' complaints any weight. A-64-66. Therefore this court should follow the reasoning in Sanderson and Mitchell, and rule that Prudential engaged in impermissible self-dealing. This failure to acknowledge the credible evidence is just further evidence that Prudential's decision should be give little to no deference. Therefore, under a heightened standard, Prudential's decision was arbitrary and capricious.

F.

PRUDENTIAL DID NOT HAVE SUBSTANTIAL EVIDENCE TO SUPPORT ITS DECISION, AND THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT GRANTING BENEFITS UNDER THE PLAN. Under the heightened standard of arbitrary and capricious review, a plan

administrator's decision will be overturned if it is, "without reason, unsupported by

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substantial evidence or erroneous as a matter of law." Sanderson, at 472. In addition, the court must, "not only look at the result--whether it is supported by reason--but at the process by which the result was achieved." Id. Looking at the record as a whole, the process was flawed in that Prudential ignored almost all of Ms. Goletz' credible evidence. More importantly, Prudential's decision was not based on substantial evidence and Prudential offered no credible explanation as to its reasoning process. Prudential still cited Dr. Bandera's report for support. However, as discussed above this report cannot be relied upon due to the fact that Ms. Goletz did have objective evidence and Dr. Bandera misdiagnosed Ms. Goletz. The only other evidence that would support Prudential's decision is Dr. Foye's report. Problems with this report have been discussed in greater detail sections above and in plaintiff's opening brief. It should be noted that Dr. Foye's report was sought only after a favorable evidence was received by Prudential. Given her restrictions, Dr. Foye questioned if there actually was any gainful employment available to her. Prudential did not do a new assessment as requested by Dr. Foye. This is just more evidence of Prudential's procedural bias. Also, Dr. Foye pointed out that she could only use her hands for less than 1/3 or 2.6 hours a day. Dr. Foye also confirmed that she had inflammatory polyarthritis. This is a disease that has been established to cause great pain. In addition, Dr. Foye never actually examined Ms. Goletz. Based solely on this report, Prudential inaccurately claimed it has substantial evidence. This court should follow Ott v. Litton Industries, Inc. in deciding to overturn Prudential's decision and award Ms. Goletz her benefits. Ott v. Litton Industries, Inc., 2005 WL 1215958 (M.D. Pa. May 20, 2005). There the court overturned the administrator's decision while reviewing a case under a heightened arbitrary and capricious review. Ott, at

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*11, *19. The Ott court stated that, "Although the Supreme Court has held that courts may not require ERISA plan administrators to defer to doctors who have treated a claimant over those who merely review her medical files, the court may sill evaluate the weight of each doctor's opinion on the extent of his or her treatment history with the patient and specialization or lack thereof." Ott, at *18. The Ott court rejected two assessments by two doctor's that reviewed the claimant's filed and ruled that she was able to work. The Ott case differed in that the claimant claimed she had fibromyalgia and the two reviewing doctor's completely rejected it. The Ott court criticized the administrator for relying on this contention that plaintiff lacked "objective evidence". The court in Ott ultimately rejected both reviewing physician's opinions. "The utilization by Defendants of two physicians who never examined Plaintiff, but simply refused to accept the fibromyalgia diagnosis and thus rejected disability due to fibromyalgia on the basis of Plaintiff's medical file, was arbitrary and capricious..." Ott, at *19. However, in this case, it is clear that there was objective evidence to establish the inflammatory polyarthritis as the blood tests and notes of swelling clearly established it. Next, Prudential ignored Ms. Goletz credible evidence. Under Sanderson, this would be considered erroneous as Prudential is suppose to give credit to reliable evidence. Sanderson, at *2. Under the Plan itself, Prudential was suppose to credit the SSA decision, her complaints, her medical records, and her doctor's reports. A-578. As discussed above, Prudential did not do that and ignored this overwhelming evidence. The only logical reason was that all of that evidence favored granting Ms. Goletz. Look at the record as a whole, Prudential's decision was arbitrary and capricious, because it was without reason, lacked substantial evidence, failed to follow the proper

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procedures under the plan, and was erroneous under the law. Under Ott and the Sanderson cases, this court should overturn Prudential's decision.

Conclusion Wherefore, this court should deny Prudential's request for summary judgment because it was arbitrary and capricious in that it was self serving, lacked reason, unsupported by substantial evidence, violated policy procedures by not properly factoring evidence, and is erroneous as a matter of law. Also, this court should give little to no deference to Prudential's decision because of its self-serving approach to the evidence and procedural bias. Thus, this court should grant Plaintiff's motion for summary

judgment based on the fact that there is more than substantial evidence to prove she was disabled under the factors for determination. In the alternative, this court should go forward to a trial on the record in that a genuine issue of fact has been established, or remand this case back to Prudential for proper evaluation.

GRADY & HAMPTON, LLC __/S/ Laura F. Browning _____ John S. Grady, Esq. (I. D. No. 009) [email protected] Laura F. Browning, Esq. (I.D. No.4504) [email protected] 6 North Bradford Street Dover, DE 19904 (Tel. 302-678-1265) Attorneys for plaintiff DATED: June 24, 2005

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ATTACHED UNREPORTED CASES

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2002 WL 1284947 (D.Del.) Motions, Pleadings and Filings Only the Westlaw citation is currently available. United States District Court, D. Delaware. Mary M. MITCHELL, Plaintiff, v. PRUDENTIAL HEALTH CARE PLAN, a foreign insurance company, Defendant. No. Civ.A. 01-331 GMS. June 10, 2002. MEMORANDUM AND ORDER SLEET, J. I. INTRODUCTION *1 On April 6, 2001, the plaintiff, Mary Mitchell, filed suit against Prudential in the Superior Court for the State of Delaware (Kent County). On May 21, 2001, the case was removed from state court to the United States District Court for the District of Delaware. (D.I.1.) The plaintiff's amended complaint, filed on June 15, 2001, alleges violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. (D.I.9.) Specifically, Mitchell asserts that she was improperly denied disability benefits by Prudential, the provider of benefits under Mitchell's benefits plan. Presently before the court is the defendant's motion for summary judgment which argues that the plan language gives Prudential discretion to deny benefits, thereby requiring this court to employ an arbitrary and capricious standard of review. Prudential urges the court to find that its decision to deny benefits was not arbitrary or capricious because the medical evidence available at that time supported a finding that Mitchell was not permanently disabled. The plaintiff responds that Prudential is not given discretion under the plan, and asks the court to review the decision de novo. In the alternative, Mitchell argues that even if the court declines to review the decision de novo, it must employ a "heightened" arbitrary and capricious standard because Prudential funds the plan and is the plan's fiduciary. In any event, Mitchell asserts that Prudential's motion fails under any standard of review because it selectively chose to focus on the medical opinions that were favorable to Prudential while ignoring medical evidence that suggested Mitchell might be permanently disabled. Prudential responds that none of the medical information that supports Ms. Mitchell's claim was presented before the initial denial of benefits. Upon review of the relevant documents and case law, the court finds that the defendant is not entitled to summary judgment. The court is persuaded by the defendant's contention that Prudential is implicitly granted discretion under the Plan and therefore, an arbitrary and capricious standard of review must be employed. However, because Prudential both funds the plan and determines eligibility for benefits, the court must employ a "heightened" arbitrary and capricious standard of review. Under the "heightened" arbitrary and capricious standard of review, the court finds that Prudential's decision to deny benefits to Mitchell was arbitrary and capricious based upon Prudential's self-serving use and analysis of the available evidence. The court will therefore deny the defendant's motion for summary judgment on this claim and remand to Prudential with instructions to take action consistent with this opinion. II. FACTS Mary Mitchell was employed by Milford Memorial Hospital ("Milford") in Delaware as an operating room technician. Milford sponsored an employee benefits plan. Prudential is the insurer and underwriter of the plan. The plan names Milford as the Plan Administrator (D.I. 35 at A96.) Prudential is referred to as the provider of benefits. (Id.

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at A97.) Prudential was also responsible for determining eligibility for benefits. *2 In October 1996, Mitchell applied for disability benefits with Prudential, citing, inter alia, back pain, leg pain, and sciatic pain. She was 51 years old at the time. In connection with this request for benefits, she asked Dr. Richard DuShuttle to submit an attending physician's statement ("APS") on her behalf. Mitchell first complained to Dr. DuShuttle about pain in the left hip with radiating pain in the groin and right buttock on June 18, 1996. Dr. DuShuttle requested a bone scan which indicated that Mitchell might have degenerative arthritis in the left foot and left wrist. Dr. DuShuttle's MRI of the lumbar spine also indicated mild degenerative disc disease, mild spinal canal stenosis, and minimal right line disc protrusion in the lower lumbar region. Based on these evaluations, Dr. DuShuttle's APS dated October 23, 1996 indicated that Mitchell was capable of performing light duty work four hours each day. (Id. at A128-29). Prudential initially denied Mitchell's claim for benefits on October 29, 1996. (Id. at A130.) Prudential's policy for determining benefits stated: Total Disability exists when Prudential determines that all of these conditions are met: (1) Due to sickness or accidental injury, both of these are true: (a) You are not able to perform, for wage or profit, the material and substantial duties of your occupation. (b) After the Initial Duration of a period of Total Disability, you are not able to perform for wage or profit the material and substantial duties of any job for which you are reasonably fitted by your education, training or experience. The Initial Duration is shown in the Schedule of Benefits. (2) You are not working at any job for wage or profit. (3) You are under the regular care of a doctor. (Id. at A74; A130.) In October 1996, Prudential denied benefits because it believed that Mitchell was currently employed at a local bowling alley. However, this was later found to be untrue and Mitchell was initially awarded benefits effective November 28, 1996. (Id. at A139-40.) The benefits were scheduled to terminate on November 28, 1998, the end of Mitchell's "Initial Duration" period. (Id. at A264.) During Mitchell's Initial Duration period, Prudential continued to request medical information regarding her condition. Prudential sent a questionnaire to Dr. Harvey Lee, one of Mitchell's treating physicians. On February 19, 1997, Dr. Lee's responses indicated that Mitchell could not sit or stand for more than fifteen minutes at a time and could lift no more than fifteen to twenty pounds. (Id. at A132-33.) Dr. Lee indicated that there were no objective findings to support this conclusion. However, Dr. Lee also indicated that Mitchell was being treated for her back problems and it was "unlikely" that she would be able to work while this treatment continued. (Id.) Prudential also arranged for Mitchell to be evaluated by Dr. Tutse Towne in May 1997. Dr. Towne's May 12, 1997 letter stated: *3 Based on my examination today, Mrs. Mitchell should be able to lift at least 10-15 pounds without any difficulty. She should also be able to twist from side to side. Furthermore, she should be able to perform [a] sedentary occupation full time, as long as her job description is flexible enough to minimize prolonged sitting or prolonged standing. (Id. at A144.) Dr. Garrett Herring, Mitchell's treating chiropractor, also submitted an APS dated May 26, 1998. Dr. Herring's APS noted that Mitchell's daily activities consisted of "[n]ormal activities of daily living w/restrictions being [sic] no extended duration due to pain." (Id. at A147.) Dr. Herring opined that if Mitchell could find a job that satisfied her wish for no increased pain with increased activity, "she might be able to work." (Id.) Mitchell also submitted another APS from Dr. Lee which was dated June 17, 1998. Dr. Lee's second APS reiterated the diagnosis of lower back pain. (Id. at A148.) However, when asked about Mitchell's prospects for returning to work, Dr. Lee indicated that she was "unable to do any prolonged activity, manual or physical." (Id.) Mitchell was seen by Dr. Tonwe again in November 1998. Dr. Towne's second evaluation dated November 2, 1998 again diagnosed Mitchell with chronic back pain.

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Dr. Tonwe repeated his earlier conclusion about Mitchell's ability to work, stating, "It is my opinion that her condition is such that she should be able to work with some restrictions." (Id. at A150.) In a follow-up note dated November 9, 1998, Dr. Tonwe stated that Mitchell was "disabled from her own occupation at this time, but she is not disabled from any occupation." (Id. at A151.) On November 25, 1998, Prudential wrote Mitchell to advise her that her disability benefits would be terminated effective November 27, 1998. In reaching this decision, Prudential acknowledged that Mitchell complained of back pain, arthritis, and fibromyalgia. [FN1] Prudential stated that although Drs. Lee and Herring both indicated that Mitchell could not perform strenuous activity, they did not conclude that she could not work. Prudential also mentioned Dr. Tonwe's conclusion that Mitchell should be able to work. Based on this information, Prudential stated: FN1. Although this is the first reference the court found to fibromyalgia in the record, Mitchell apparently mentioned fibromyalgia in one of her previous claims forms.

While we understand that you are experiencing pain which does require ongoing treatment, your condition is not so severe as to render you totally disabled from any occupation. Although your condition may prevent you from perform [sic] your own occupation and other occupations which require prolonged physical activity, you could perform a job which allows you to change positions as needed to relieve your pain. (Id. at A153.) By letter dated February 16, 1999, Mitchell advised Prudential that she wanted to appeal the decision. In her letter, she stated that did not have adequate notice of the termination of benefits. She also explained, in great detail, that she was experiencing substantial pain that limited her ability to function. She stated that although she could do some limited laundry work (as long as she did not lift baskets), she could not vacuum, make beds, iron, scrub or sweep, and that there were several days when she could not do anything at all due to pain. (Id. at A156.) She referred to an evaluation by Barker Therapy and Rehabilitation. The physical therapist noted that "Mary [Mitchell] continues with weakness and pain and loss of function and may benefit from continued physical therapy to achieve maximum functional benefit." (Id. at A166.) *4 In response to Mitchell's letter, Prudential stated it would review the information Mitchell submitted, and encouraged her to submit any further information. On March 12, 1999, Prudential advised Mitchell that it was upholding its decision to terminate her benefits. The letter did not mention Dr. Lee or Dr. Herring. However, it did mention the results of the November 9, 1998 evaluation of Dr. Tonwe. Prudential did consider the physical therapy records from Barker Therapy. Prudential noted that Barker's evaluation indicated that Mitchell was "limited in [her] ability to bend, lift/carry, and grip." (Id. at A171.) However, Prudential stated that even with these limitations, Mitchell should be able to function in sedentary or light activities. Thus, Prudential affirmed its decision, but extended the benefits denial date to March 31, 1999 to compensate for any lack of notice. Prudential also advised Mitchell of her right to appeal their determination. Mitchell advised Prudential of her desire to appeal the decision in a letter dated June 11, 1999. In her letter, Mitchell reiterated her complaints of pain and informed Prudential that she was unable to sleep and was frequently fatigued. (Id. at A174.) On July 9, 1999, Prudential advised Mitchell that her file would be reviewed again and that she should submit any information that she wanted to be considered. Mitchell replied that there was no further information that she wished to include. Therefore, on July 22, 1999, Prudential advised her that second appeal was denied. (Id. at A193-95.) On November 22, 1999, Mitchell requested a further and final appeal of the decision. She attached two APS forms with her request. A May 5, 1999 APS by Dr. Lee repeated the diagnosis of severe lower back pain. In the APS, Dr. Lee reiterated that Mitchell was

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"unable to sit, stand, walk, or run for [an] extended period of time." (Id. at A183.) In particular, Dr. Lee noted that Mitchell could not stand for more than 15 minutes. He stated that due to the chronic lower back pain, Mitchell was "unable to do any meaningful regular activity" and would also be "unable to return to work." (Id. at A184.) However, an APS from Dr. Herring dated June 17, 1999 indicated that although Mitchell's back problems were "permanent," and she was "unable to perform activities of daily living without] severe pain," she should be able to perform sedentary work. (Id. at A176.) On December 13, 1999, Prudential advised Mitchell that it could not complete its evaluation of her appeal without the additional medical information she previously indicated that she would provide. On August 7, 2000, Mitchell responded and indicated that she still suffered from severe back pain and fibromyalgia, which claimed she had "continued to get worse in the past 1 1/2 years." (Id. at A208.) She also indicated that she had gone to Dr. Charles Wagner for a second opinion, and enclosed the doctor's evaluation. In a letter dated July 17, 2000, Dr. Wagner stated that Mitchell had fibromyalgia and Lyme Disease. Dr. Wagner stated that Mitchell therefore had a "chronic disability" and was "unable to hold down a job." (Id. at A210.) Dr. Wagner further stated, "Physical examination confirms chronic fibromyalgia with point tenderness, muscle fatigue on minor exertion." (Id.) Dr. Wagner concluded, "The patient has remained the same since 1996. She cannot maintain a job in her, or other, professions." (Id.) *5 During the appeal process, Prudential sent the entire Mitchell file to Dr. William Anthony for review and analysis. Dr. Anthony summarized the medical history and noted that the bone scan and the MRI showed degenerative arthritis and mild degenerative disc disease, respectively. Additionally, Dr. Anthony noted that the patient appeared to suffer from several maladies, most recently Lyme disease. When asked if there was medical evidence on file to support an impairment that would render Mitchell unable to perform any job since April 1, 1999, Dr. Anthony stated, "[T]here are numerous subjective statements in this chart, but there are no definite evaluations of the patient which would suggest that objectively Ms. Mitchell would be unable to perform the duties of any job since 04/01/99." (Id. at A224.) Despite his finding that there were no objective statements to support Mitchell's claims, Dr. Anthony noted that "however, there is a very concerning letter from Charles G. Wagner, M.D. dated 07/01/00 in which numerous subjective statements of report [sic] are made with regard to plaintiff's condition and if by physical examination or functional capacity evaluation those allegations or statements can be substantiated it would be my belief that the patient would be totally disabled from any occupation." (Id. at A225.) Prudential never requested such an examination. Dr. Anthony further stated that although Dr. Wagner's evaluation did not appear objective, "barring a functional capacity evaluation to the contrary we must respect Dr. Wagner's judgment in this matter." (Id. at A226.) Finally, although Dr. Anthony considered the opinions of both Dr. Wagner and Dr. Tonwe, he noted that Dr. Wagner's evaluation "seems to describe a patient with many more and more serious complaints than that noted in Dr. Tonwe's evaluations of 11/98." (Id.) Prudential also asked Dr. Joel Moorhead, a medical director at Prudential, to review the file. Dr. Moorhead stated that although the MRI appeared to show changes in the back, these changes were related to age, were not usually symptomatic, and should not prevent Mitchell from working. Dr. Moorhead did not provide any specific facts in support of these findings. Dr. Moorhead also stated that the Lyme Disease diagnosis did not appear to be well supported. He did not offer a rationale for this conclusion, however. He also noted that Dr. Tonwe and Dr. Anthony's conclusions that Mitchell could not work at any job were well supported. Dr. Moorhead did not offer any reasons for this judgment either. On January 29, 2001, Prudential advised Mitchell that it had reviewed her claim and decided not to reinstate her benefits. Prudential first summarized all of the medical evidence in the file, including Ms. Mitchell's descriptions of her pain and limitations. Prudential then stated:

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The documentation submitted on appeal reflects that Ms. Mitchell has been diagnosed with Lyme Disease and has been under the care of Dr. Shoemaker. The diagnosis of Lyme disease does not appear to be well-established. There is no indication of inflammatory arthritis and a normal neurological exam. Additionally, the diagnosis of Lyme Disease appears to be made in July 2000 from Dr. Wagner. Any new development of a disorder would not be covered as Ms. Mitchell's claim terminated effective April 1, 2000. *6 Ms. Mitchell and her physicians have indicated that Ms. Mitchell's conditions prevent her from performing the duties of a sedentary occupation. Based on our review of the information in the file, we have determined that at the time LTD benefits were terminated, documentation does not support a Totally Disabling condition that would render Ms. Mitchell unable from performing [sic] job duties [in] a position classified as sedentary. The 1996 MRI of the lumbar spine shows degenerative changes on lumbar spine which are age-related changes. The imaging findings are not sufficiently severe enough to prevent returning to another occupation. Dr. Tonwe opined that Ms. Mitchell would be able to perform sedentary work. Dr. Anthony opined that the documentation did not support an impairment that would prevent Ms. Mitchell from performing the duties of another occupation. (Id. at A265-65.) Prudential's statement that the Lyme disease diagnosis was not well established echoes Dr. Moorhead's findings, but Prudential did not address the fibromyalgia aspect of the claim. Moreover, Prudential never addressed Dr. Anthony's statements that Mitchell's condition might have deteriorated since seeing Dr. Tonwe or that if her subjective complaints of pain were objectively verified (i.e. through a functional capacity test), she would be totally disabled from any occupation. Based on this reasoning, Prudential determined that Mitchell could perform sedentary work, specifically as a hospital admitting nurse. After a request for further review was denied, Mitchell filed this action. III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340-41 (3d Cir.1990). The movant bears the burden of proving that there are no genuine issues of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 586 n. 10 (1986). A dispute is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-movant, and a fact is material if it might effect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) Finally, on any motion for summary judgment, the court must view the evidence in a light most favorable to the non-movant and draw all reasonable inferences in his favor. Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998). With these principles in mind, the court will consider the appropriate standard of review to be applied in this case. IV. DISCUSSION A. The Standard of Review When considering a plan administrator or fiduciary's denial of benefits under ERISA, district courts are generally instructed to employ de novo review. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). However, where plan terms grant discretion to the plan administrator or fiduciary to determine a claimant's eligibility for benefits, the decision is subject to review under an "arbitrary and capricious" standard (i.e., a determination of whether the plan administrator abused its discretion in reaching its decision). See Mitchell v. Eastman Kodak Co., 113 F.3d 433, 437 (3d Cir.1997). Where discretion is reserved, the court may overturn the decision only if it is " 'without reason, unsupported by substantial evidence or erroneous as a matter of law." ' Abnathya v. Hoffman-La