Free Opening Brief in Support - 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' OPENING BRIEF IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT

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 10, 2005

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TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................ii TABLE OF CITATIONS...........................................................................iv NATURE AND STAGE OF THE PROCEEDINGS............................................1 STATEMENT OF FACTS..........................................................................2 A. MS. GOLETZ BACKGROUND AND EMPLOYMENT WITH BANK ONE............................................................................. 2 BANK ONE'S DISABILITY INSURANCE POLICY WITH PRUDENTIAL..........................................................................2 MS. GOLETZ' DISABILITY.........................................................3 GOLETZ PHYSICIANS' NOTES AND STATEMENTS........................3 PRUDENTIAL'S RESPONSE TO MRS. GOLETZ' CLAIM...................8

B.

C. D. E.

SUMMARY OF THE ARGUMENT............................................................16 ARGUMENT........................................................................................18 I. SCOPE OF THE REVIEW...........................................................18 A. B. SUMMARY JUDGMENT STANDARD.................................18 STANDARD OF REVIEW FOR ERISA CASES.......................18

II.

PRUDENTIAL ACTED IN A SELF-SERVING MANNER AND ITS DECISION WAS ARBITRARY AND CAPRICIOUS..........................19 A. PRUDENTIAL'S DENIAL IN THE FIRST APPEAL WAS SELF-SERVING AND ARBITRARY AND CAPRICIOUS..........20 PRUDENTIAL'S DENIAL IN THE SECOND APPEAL WAS SELF-SERVING AND ARBITRARY AND CAPRICIOUS .........23 PRUDENTIAL'S DENIAL IN THE THIRD APPEAL WAS SELF-SERVING AND ARBITRARY AND CAPRICIOUS .........25

B.

C.

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III.

PRUDENTIAL'S DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT IT FAILED TO ACKNOWLEDGE MS. GOLETZ' SUBJECTIVE COMPLAINTS....................................................30 PRUDENTIAL'S DECISION WAS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.................32 A. B. SCOPE OF REVIEW.......................................................32 PRUDENTIAL'S DECISION TO DENY BENEFITS WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE...............33

IV.

CONCLUSION....................................................................................35 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)..............................................................25, 29 Kosiba v. Merck & Co., 384 F.3d 58 (3rd Cir. 2004)...................................27, 28 Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 (D.Del)...........18, 28-31 Orvosh v. Program of Group Ins. For Salaried Employees of Volkswagen of Am., 222 F.2d 123 (3d Cir. 2000).................................32 Ott v. Litton Industries, Inc., 2005 WL 1215958 (M.D. Pa. May 20, 2005).........32,34 Pinto v. Reliance Standard Life Ins., 214 F.3d 377 (3rd Cir. 2000)..................18, 28 Russell v. The Paul Revere Life Ins. Co., 148 F.Supp.2d 392 (D.Del. 2001)............................................................................18 Sanderson v. The Continental Casualty Corp., 279 F. Supp.2d 466 (D.Del 2003)...................................................18, 19, 22, 24, 27, 31, 32 Sanderson v. Continental Casualty Corp., 2003 WL 22078075 (D.Del)...............................................................18, 22, 25, 30, 33, 34

OTHER AUTHORITIES Fed. R.Civ.P. 56(c)................................................................................18

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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. On November 21, 2002, Prudential denied her first appeal stating that she did not meet the criteria for disability beyond October 29, 2002 and it was upholding the decision to terminate her long term disability ("LTD") benefits. In February 2003, Ms. Goletz again appealed the decision and included more medical documents. On May 12, 2003, Prudential denied her second appeal for her long-term disability benefits. 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. This represents Plaintiff, Moira Goletz, opening brief in support of her motion for summary judgment.

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STATEMENT OF FACTS A. MS. GOLETZ BACKGROUND AND EMPLOYMENT WITH BANK ONE. Ms. Goletz is a 47-year-old woman with a high school education. A-231 In 1997, Ms. Goletz began working as a full-time employee for First USA Bank as a Customer Service Representative. First USA Bank later became Bank One Corporation. Ms. Goletz was promoted to the position of Cardmember Advocacy Specialist. A-258 As a cardmember specialist, she worked in the President's office and resolved issues for customers who called. She often worked ten-hour days, about five hours of the day were spent sitting and the other five were spent on her feet. By May 20, 2000, Ms. Goletz was unable to work at her position at Bank One. She was never able to return back to her position with Bank One.

B. BANK ONE'S DISABILITY INSURANCE POLICY WITH PRUDENTIAL. Bank One policy was through Prudential--policy DG-56249-IL ("The Plan"). A-2. Prudential both funded and administered the Plan. A-577, A-11 The Plan covered all regular hourly, salaried, and commissioned employees. A-10. As a full-time employee, Ms. Goletz became was insured under the Plan. A-2, A-258. The Plan provided for the payment of longterm disability benefits to covered employees who met all contractual provisions, including the definition of disability. A-2. The Plan defined disabled as: You are disabled when Prudential determines that: you are unable to perform the material or substantial duties of your regular occupation due to your sickness or injury; and you have a 20% or more loss in your index monthly earnings due to that sickness or injury. After 24 months of payment, you are disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience. A-11

Prudential approved the first 24 months of disability as Prudential determined that she was unable to perform her regular job as a cardmember specialist. A-68. After 24

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months, Prudential alleged that Ms. Goletz did not meet the definition of disability under the terms of The Plan, because she was able to hold "any gainful occupation." A-11. The Plan defines gainful occupation as, "an occupation, including self-employment, that is or can be expected to provide you with an income equal to at least of the percentage of your index monthly earnings within twelve months of your return to work, depending on the plan for which you are enrolled." A-11. Ms. Goletz had enrolled in the option II, which was 70% of her monthly earnings, but not more than $15,000. A-258.

C. MS. GOLETZ'S DISABILITY.

Beginning in 1999 to the present, Ms. Goletz has had surgeries on her left wrist, left and right elbow, gallbladder, and left knee. Ms. Goletz has been treated by many medical experts, including physicians, chiropractors, and physical therapists. Despite extensive

treatment, she still experienced an extreme amount of daily pain in her joints, arms, back, neck, and knee. By 2001, Ms. Goletz was diagnosed with seronegative inflammatory

arthritis, generalized degenerative joint disease, and bilateral carpal tunnel syndrome. Ms. Goletz had difficulty performing ordinary daily activities, which included walking, bathing, dressing, and cooking. She also has significant difficulty typing or writing. In November 2003, an administrative law judge for the Social Security Administration found her to be disabled. D. GOLETZ PHYSICIANS' NOTES AND STATEMENTS: In 1992, her primary physician noted that she experienced pain in her arms and fingers. A-276. He also noted that she had previous surgery on her hands, which included a left hand ganglion cyst removal. A-276. Dr. Rowe, an orthopedist, treated Ms. Goletz for pain in her arms and hands. He diagnosed her with carpal tunnel syndrome of the left hand.

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A-460. On April 24, 1995, Dr. Rowe performed a release of the left carpel tunnel under Loupe magnification on Ms. Goletz. A-459. In 1999, Ms. Goletz still had pain in her hands with numbness for about six months and in 1999 she returned to Dr. Rowe. A-455. He diagnosed her with left ulnar nerve palsy and left wrist irritation. A-455 An EMG revealed bilateral ulnar neuropathy. A-455. Dr. Rowe performed a left intramuscular ulnar nerve transposition surgery and injection of Depo-Medrol and Marcaine. A-453. Despite the surgery, Ms. Goletz continued to have left arm and wrist pain, which Dr. Rowe treated with steroid injections. A-449 In November 1999, Dr. Rowe noted that there had been "no change" in Ms. Goletz' wrist pain, and he began treating Ms. Goletz for her neck and back pain. A-450. He diagnosed her with a cervical and thoracic strain. A-450. Dr. Rowe noted, "[t]here is tightness and tenderness to palpation of the right trapezuis. X-rays of the cervical spine...reveal straightening consistent with spasm and loss of the normal lordotic curve. There is anterior superior end plate spurring at C5." A-450 In March of 2000, Ms. Goletz underwent gall bladder surgery. A-447. At a May 18, 2000 office visit, Dr. Rowe noted: "she apparently worked in the garden on Saturday and this caused her entire left arm to start throbbing constantly. In the past this only occurred only intermittently. Most of the pain is at the elbow and wrist. She reports dropping things because of her left arm." A-446 In July 2000, Ms. Goletz underwent a MRI of her of the cervical spine. A-442. The MRI, "revealed mild spondylosis and degenerative disc disease." A-442. Dr. Rowe

continued to diagnose Ms. Goletz with a cervical and thoracic strain. A-442. On July 17, 2000, Dr. Rowe noted, "we have tried chiropractic and physical therapy and there is little else to offer the patient." Dr. Rowe referred Ms. Goletz to Dr. Upadhyay for pain management treatment. A-442

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On February 23, 2001, Dr. Rowe completed a form for Prudential on which he noted that she could not work at any occupation. A-245. Dr. Rowe noted that Ms. Goletz was experiencing pain and numbness with her right elbow. A-245 Dr. Rowe eventually diagnosed Ms. Goletz with right elbow olecranon bursitis. A-440, A-251. Ms. Goletz had also been experiencing extreme joint pain. A-439 In 2001, she began seeing Dr. Tamesis who eventually diagnosed her with inflammatory polyarthritis. A-478. In a letter dated February 23, 2001, Dr. Tamesis noted that Ms. Goletz had multiple joint pains and: [s]he describes mostly pain involving her right elbow, describes some burning sensation of her left wrist followed by persistent pain. This has been ongoing for the last seven months. She has been receiving PT for these, however, she has not had much relief...She also complains of neck pains. It feels like there is a pulled muscle that is chronically present. She does complain of chronic paresthesia, weakness and stiffness of both her hands. She has tried Vioxx and other medication, however, she has not had much relief. A-478 In the March 9, 2001 office visit, Dr. Tamesis noted, Small joints of her hands: Now reveal evidence of synovitis and tenderness on palpation of her left wrist. She has some pain on abduction of both shoulders. Also marked pain on motion of her cervical spine...despite her negative serologies and inflammatory markers she does have the appearance of an inflammatory polyarthritis. A-477

He started Ms. Goletz on prednisone. A-477 On May 2, 2001, Dr. Rowe performed right elbow anterior intramuscular transposition of the ulnar nerve surgery. A-436. On January 23, 2002, Dr. Rowe completed a Work Status Form for Prudential that stated Ms. Goletz could not work. A-245. He noted his decision was based on objective findings due to the cervical sprain. A-245. At a February 4, 2002 office visit with Dr. Tamesis, Ms. Goletz complained of "pain all over in the neck left wrist, right hand, sciatica." A-475 On May 8, 2002, Dr. Tamesis wrote, "Seronegative inflammatory poly arthritis, still appears to be quiet active." A-473.

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On July 11, 2002, Dr. Tamesis wrote: "I have found that she has evidence of an inflammatory polyarthritis that significantly limits her ability to do any significant activities of daily living. This markedly impairs her ability to participate in any occupation at this time resulting in her current disability..." A-471.

On July 26, 2002, Dr. Tamesis noted that Ms. Goletz was still having significant pain with the knee despite a steroid injection. A-472. He noted, "MRI revealed evidence of small joint effusion. No tears. She continues to be on Darvocet, Meteorite 4 tabs..." A-472. Ms. Goletz condition is unchanged by July 23, 2002. Dr. Tamesis diagnosed her with, "1. First degree MCL sprain, left knee, 2. DJD, left knee, 3. TFCC tear, left wrist, 4. Right elbow olecranon bursitis, 5. Cervicothroacit [sic] strain, 6. DDD (degenerative disc disease), C3-4 greater than C6-7 per MRI of 10/22/01, 7. Lumbosacral Strain." To treat her knee, Dr. Tamesis injected Ms. Goletz with DepoMedrol and Marcaine. He

continued her on Darvocet. On September 9, 2002, Ms. Goletz returned to Dr. Tamesis office with increase in pains all over." Dr. Tamesis assessed her with Seronegative inflammatory arthritis. On physical exam, he found, "JOINTS: revealed marked pain on ROM of the cervical spine. Pain on ROM of both shoulder. Marked tenderness on palpation of carpal bones, MCPs and PIPs of both hands. Still with main on

flexion/extension of both knees....Some mild discomfort on ROM of both ankles. Tenderness on palpation of various MTP joints. A-470.
In a January 8, 2003 letter, Dr. Tamesis wrote: [t]his is to certify that I have been seeing Moira Goletz since February of 2001 for her rheumatoid arthritis. This is a severe disabling inflammatory arthritis that results in multiple joint swelling and destruction of the joints. This markedly limits her activities of daily living, most especially those that require repetitive movements. I have now started her on Remicade infusion therapy that will require she receive these every 8 weeks at the minimum to

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help control the disease process. While this is ongoing and until we can control the disease I feel she continues to be disabled from any occupation. A-468. On February 10, 2003, Dr. Rowe wrote a letter stating that Ms. Goletz' under his care for: First degree MCL sprain and degenerative joint disease of the left knee. 2. Triangle fibro cartilage tear of the left writs. 3. Right elbow olecranon bursitis. 4. Cervical and thoracic strain. 5. Degenerative disc disease of the cervical spine. 6. Lumbosacral strain. I have referred her to Dr. Ger for the left wrist, and it is my understanding that she is scheduled to undergo surgery for that problem on 02/12/03. A-251. On April 10, 2003, Dr. Rowe noted that Ms. Goletz, "states that the left knee throbs at night. A-419. Dr. Rowe diagnosed her with a "1st degree MCL sprain of the left knee and DJD left knee." A-419. Dr. Rowe performed surgery on Ms. Goletz' left knee on April 29, 2003. A-415. In surgery he found that the, "MRI performed, which had demonstrated no mensical tear and no other abnormality. However, intraoperatively the MRI was found to be wrong because she had extensive chondromalacia to the medical femoral condyle where her pain was present and also the patellas and a small area in the lateral tibial plateau." A-415. In a letter dated May 8, 2003 to the Prudential Appeal Review Unit, Dr. Tamesis wrote that Ms. Goletz suffered from 1) seronegative inflammatory arthritis, 2) generalized degenerative joint disease, and 3) bilateral carpal tunnel syndrome. A-252. He also wrote, [t]his has significantly impacted upon her activities of daily living. She has significant difficulty in range of motion of her hands. This limits her ability to lift objects above 10 pounds. She also has significant difficulty in grasping objects and doing repetitive tasks as grip remains weak. Any 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. She is now on high dose immunosuppressive agents, nonsteroidal anti-inflammatory medications, narcotic analgesics, and periodic boluses of crticostesriods [sic]. A-53.

Dr. Rowe wrote a letter dated May 8, 2003 to Prudential about Ms. Goletz' condition. In it, he wrote:

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Ms. Goletz has been under my care for multiple complaints for some time. Most recently, she underwent left knee arthroscopic chondroplasty of the patella, medial femoral condyle, and lateral tibial plateau on 4/29/03. She has additional complains of a right elbow olecranon bursitis, cervical and thoracic strain, degenerative disc disease of the cervical spin and lumbosacral strain. I last evaluation her on 5/6/03, at which time she was told to continue weight bearing with her walker, and to continue a home exercise program. She is to return on 5/28/03 at 1:00 and she remains unable to work until that visit... A252.

E. PRUDENTIAL'S RESPONSE TO MRS. GOLETZ' CLAIM; On April 17, 2001, Alexis Lonero, Disability Claims Manager, approved Ms. Goletz for Long Term Disability for the first 24 months. A-68. On June 24, 2002, Prudential informed Ms. Goletz that her LTD benefits would be cut off effective October 29, 2002. A-71. At that point,

Prudential had Ms. Goletz medical records and an opinion by Dr. Rowe that she could not work. The claims manager wrote: After 24 months of payments, you are disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education training or experience. The above definition, which indicates `[a]fter 24 months of payments...' applies to your claim effective October 30, 2002. Our review included medical records provided by Dr. Rowe. After a thorough evaluation of the information provided, we have determined that although you continue to experience knee and wrist pain, the medical documentation does not support an impairment preventing you from performing the necessary and substantial functions of any occupation. We find that you maintain the functional ability to perform in a sedentary occupation that does not require repetitive handwork. Therefore, your claim will be closed with benefits payable through October 29, 2002." A-71.

On July 29, 2002, Ms. Goletz appealed this decision to the Appeals Review Unit for the first time. She wrote: I have attached two copies one of a letter from a specialist Dr. Tamesis. & the other is a form from Dr. Rowe which verify my inability to work do to my disability. Due to the rheumatoid arthritis I have pain in my hands, ankles, wrists, knees and legs. My hands and ankles swell on a daily basis...A-75.

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She stated that she had a hard time sitting, standing or walking and the medication was greatly affecting her. A-75. Prudential's claim managers noted their analysis and other things in SOAP Notes. A45-66. In August 16, 2002 in the Soap notes, the claims manager noted that both of Goletz' physicians, Dr. Rowe and Dr. Tamesis, opined that Ms. Goletz could not work. A-57. The claims manager noted: EE (Employee) appeals indicating painful arthritis, hand swelling, and neck pain. Included with appeal is WSF completed by Dr. Rowe indicating that ee cannot work because of pain and spasms of cervical spine. Dr. Rowe indicates that ee is limited in ability to sit, stand, walk and lift. Also submitted is letter for rheumatologist, Dr. Tamesis indicating that the has been treating ee since 2-01 for inflammatory polyarthritis which he opines prevent ee from working. A-57.

In a letter dated August 19, 2002, the Prudential wrote to Plaintiff Goletz that, "[w]e are currently performing a thorough evaluation of the information currently within your file. Should there be an additional information you would like to submit, please forward it to our office promptly." A-78. On September 5, 2002, claims manager, Michelle Pence, reviewed the recent medical records with Dr. Patrick Foye. A-56. In this note, the claims manager noted, "PLAN: IME would be helpful--comprehensive musculoskeletal IME with either ortho, rheumatologist or rehab dr first need MRI and any diagnostic testing." A-56. In its September 30, 2002 letter, Prudential requested Ms. Goletz to be examined by another doctor. A-80. Instead of an orthopedic or rheumatologist, Prudential scheduled an appointment with Dr. Peter Bandera, a physiatrist. A-207. Dr. Bandera is not a treating physician for Ms. Goletz. A-211. On October 30, 2002, Dr. Bandera met with Ms. Goletz for about 15 minutes. A-75. Dr. Bandera's report briefly summarized her condition and his impressions. A-213. Dr. Bandera's report did not directly discuss or analyze her treating

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doctor's opinions, he merely noted them in the history portion of his report. A-211-13. Dr. Bandera did not give any explanation why he disagreed with her Dr. opinions other than the objective evidence did not support them. A-213. Dr. Bandera described what type of work he thought she was capable of performing. A-213. Dr. Bandera did not discuss how he came to his conclusion, other than the statement that: 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. It is felt she can execute at least light duty capacity.... A-213. Dr. Bandera went on to describe work restrictions like she should defer "high impact activities," and that she would have problems to manipulate small objects like "coins". A213. On November 18, 2002, Claim Manager, Eugene Rakmanov, noted only that Dr. Bandera, "determined that ee (employee) is capable of performing sedentary to light work w/ R&L of: defer from high impact activities, reduced/very little manipulation of small objects, EE has hx. (history) of CTS, would also consider no more than occasional keyboarding." A58. On November 20, 2002, a claims manager noted what jobs Ms. Goletz could do with Dr. Bandera's restrictions. A-59. On November 21, 2002, Eugene Rakmanov noted that there was a file review by Dr. Foye and an exam by Dr. Bandera. A-60. Mr. Rakmanov did not note what if Dr. Foye gave any opinion, nor did the claims manager discuss Plaintiff's treating doctor notes that she could not work. A-60. The claims manager summarized Dr. Bandera's report, including the portion that Ms. Goletz sat through the, "examination and interview in a calm manner." A-60. Also, Mr. Rakmanov did not address any of Ms. Goletz reports of pain in her July 29, 2005 letter. A-60. Mr. Rakmanov concluded that, "[w]hile she may continue to report symptoms of pain and discomfort, medical evidence in the file, including recent PE

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("physical exam") from IME, does not support ee's inability to perform a/o ("any occupation"). Therefore, would recommend to uphold initial decision to term claim." A-60. On November 27, 2002, Prudential again denied Ms. Goletz LTD benefits. A-83. In the November 27, 2002 denial letter, Prudential wrote most of what Mr. Rakmanov had noted in the SOAP notes on November 21, 2003. A-83. Prudential wrote, "[w]e received your appeal letter on August 1, 2002, along with additional records form Dr. Schwartz and Dr. Tamesis [sic]. To help us get a better understanding of your functioning ability, we

scheduled you for an] independent Medical Examination (IME) with Dr. Bandera..." A-83. Prudential had actually received by Dr. Rowe, an orthopedist who works in the same office as Dr. Schwartz. Prudential wrote: Dr. Bandera concludes that you have multiple complaints, which do not correlate objectively. Given your physical examination and review of your medical records Dr. Bandera opined that you have the ability to perform at least a light duty job. Dr. Bandera indicates that you may be restricted to lifting and carrying five to ten pounds frequently and should defer high impact activities. He also opines that from functional perspective you may have a mildly reduced ability to manipulate small objects such as coins. A-83. In addition, Prudential conducted a Transferable Skills Analysis based solely on the restrictions and limitations outlined by Dr. Bandera. A-59. In her February 2003 letter, Ms. Goletz made a second appeal for LTD benefits. A-86 In the letter, Ms. Goletz stated that her condition had worsened. A-86. She wrote "now knowing that the cause is my rheumatoid arthritis, the pain in which I carry thru out my joints, back, neck, and legs." A-86. She also informed Prudential that she only met with Dr. Bandera for fifteen minutes and that he was not a specialist like Dr. Rowe and Dr. Tamesis. A-86. Ms. Goletz submitted letters and additional records from her treating physicians, Dr. Tamesis and Dr. Rowe. A-86, A-250-51. In Dr. Tamesis' January 8, 2003 letter, he stated Prudential based its decision solely on Dr. Bandera's report. A-246.

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that he had been treating Ms Goletz since February 2001 for rheumatoid arthritis. A-250. "This is a severe disabling inflammatory arthritis that results in multiple joint swelling and destruction of the joints. This markedly limits her actives of daily living, most especially those that require repetitive movements..." A-250. Dr. Tamesis opined that until the disease could be controlled that Ms. Goletz was disabled and could not work. A-250. Dr. Rowe's letter stated that Ms. Goletz had been under his care and that he had performed surgery on her knee. A-251. Upon the request of Prudential, Dr. Tamesis and Dr. Rowe each sent an additional report in May 2003 to Prudential stating she could not work. A-252-53. Despite receiving these letters from her treating physicians, Prudential again denied Ms. Goletz' request for LTD benefits on May 12, 2003. A-93. Despite Dr. Tamesis

statement that she could not work due to inflammatory arthritis, Prudential seemed more concerned with the fact that Dr. Tamesis narrative did not provide "any comment regarding the IME that was forwarded to his office." A-94. Also, Prudential gave little to no weight to Dr. Rowe's May 8, 2004 narrative in which he opined that Ms. Goletz was unable to work. In the May 12, 2003 denial letter, Prudential stated, "we provided your physicians an opportunity to comment on the IME report that was performed, and your physicians either declined to respond or submitted narratives that do not address comments related to the IME that was performed." A-95. Prudential specifically wanted her treating physicians to

comment on the IME in order to over come the denial. A-95. In a letter on May 23, 2003, Ms. Goletz attorney, John Grady, appealed Prudential's decision to deny the benefits for a decision. A-97. On September 19, 2003, Ms. Goletz' attorney asked Prudential to defer any decision until after Ms. Goletz received her decision on her social security case. A-100 Ultimately, Ms. Goletz' received a favorable decision and it was forwarded to Prudential in December 2003. A-226.

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Her attorney also sent a narrative from Dr. Tamesis dated August 27, 2003, which contradicted Dr. Bandera's conclusion that Ms. Goletz could not work. A-254. Dr. Tamesis wrote that, "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. He also questioned the weight of Dr. Bandera's "one-time evaluation" when Ms. Goletz was receiving chronic steroid therapy. A-254. Dr. Tamesis' wrote: At the time of Ms. Goletz' October 30, 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. A-254. Dr. Tamesis also specifically stated that Ms. Goletz' subjective symptoms "certainly correlate with her objective findings." A-254. This statement is in direct contravention with Dr. More importantly, Dr. Tamesis

Bandera's October 30, 2002 report. A-211, A-254-55.

elaborated on how Ms. Goletz was disabled. A254-55. He stated that Ms. Goletz was unable to sit for long periods of time, lift anything over 10 pounds, and that Ms. Goletz was in chronic pain, "despite use of various analgesics" A-254-55. On December 2, 2003, Ms. Goletz, through her attorney, sent another letter to Prudential, which included a copy of the favorable Social Security hearing decision. A-102. Ms. Goletz' attorney wrote, "[b]ased upon the records of the Social Security Administration which has a more severe standard of disability and based upon the medical records I have supplied, I would again ask Prudential to re-examine its finding of non-disability." A-102. On December 9th, Prudential responded to Ms. Goletz attorney's request by submitting the case to an Appeals Committee to evaluate the information submitted. A-64. Dr. Foye conducted a separate file review. A-611. Dr. Foye is a doctor who has never examined, nor

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treated Ms. Goletz. Dr. Patrick Foye is a consultant for Prudential and is paid $300 an hour. A-576. Dr. Foye has been involved with Ms. Goletz' case since at least August 2002. A-56. Prudential failed to disclose his previous involvement and only stated that he was involved an external file review in the denial letter. A-105-06. He completed a report on December 30, 2003, but because Prudential did not send the entire file he wrote an addendum on February 10, 2004. A-65. Dr. Foye's reports reviewed all of her medical records that were in Prudential's file. A-220-24. Prudential used Dr. Foye's file review as the basis of its final denial of benefits. In the March 15, 2004 denial letter, Prudential wrote that Ms. Goletz was capable of performing the duties of another gainful occupation. A-106. There, Prudential summarized the information the previous denial letters. A-104-06. Prudential did not engage in any discussion of how it credited certain evidence or how it reconciled Dr. Bandera's and Dr. Foye's analysis with that of Goletz' own specialized treating physicians. A-105-06. Prudential wrote, Dr. Foye's notes that Ms. Goletz' recurrent inflammation/synovitis would be expected to create difficulty for her if she was required to perform repetitive hand activities on a frequent or continuous basis. However, Dr. Foye notes that she would most likely be capable performing an occupation with only occasional repetitive hand activities. Dr. Foye also notes that Ms. Goletz may have difficulty with repetitive overhead activities due to chronic neck and shoulder pain. Dr. Foye opinions that with these limitations and restrictions Ms. Goleta [sic] would be expected to be able to work in a full time capacity. A-106. However, Prudential failed to include Dr. Foye's favorable comments in the final denial letter. A-106. Dr. Foye also stated, "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. Dr. Foye defined the term "occasionally" in regards to repetitive hand activities as "less than 1/3 of the workday". A-224. In addition, Prudential did not mention that Dr. Foye questioned the IME conducted by Dr. Bandera by writing, "even when she was taking these anti-inflammatory and immunosuppressive medication, there was some physical exam evidence of bilateral hand swelling and left wrist

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tenderness, even as documented by Dr. Bandera." A-233. Dr. Foye wrote, "From the combination of the physical exam findings by Dr. Tamesis and also by the evaluation by Dr. Bandera, and also the blood work result, overall it does appear most likely that claimant does have some type of inflammatory poly-arthritis, although she is seronegative for rheumatoid arthritis..." A-223. Prudential did not conduct a new vocational assessment as recommended by Dr. Foye. A-59, A-66. Instead, Prudential used a previous assessment conducted on the restrictions by Dr. Bandera in 2002. A-66. Prudential never mentioned Dr. Tamesis August 27, 2003 letter stating that Dr. Bandera's assessments were incorrect. A-105-06. However, Prudential did again cite Dr. Bandera's report as a basis for its final denial letter. A-105. In the March 15, 2004 letter, Prudential wrote that it had received the Social Security Disability Benefit Award letter and at the same time she was "waiting on the status of your appeal." A-106. In noting it received the award letter, Prudential wrote, "Prudential determines eligibility for LTD benefits based on the terms of the Group Policy, separate from the criteria used by the Social Security Administration..." A-106. Prudential admitted in the interrogatories that, "Prudential considers Social Security determinations as one factor in its evaluations, but does not consider them to be determinative." A-578. The Administrative Law Judge, ("ALJ") noted that Ms. Goletz testified about her pain and condition. "Claimant descried her right elbow as painful as if the bones are rubbing together. The hand still goes numb or tingles. She drops things, lacks ability to pinch or hold objects. Her hands are always swollen, weak, with knuckle swelling. She must hold things with both hands, e.g. a pen, a plate." A-231. He also noted that her hands were swollen. A-231. The Social Security Administration Law Judge found her testimony to be credible, he stated, "[i]n reaching this conclusion, the undersigned has considered the claimant's own subjective allegations and has found them generally credible in light of supporting medical evidence." A-231.

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SUMMARY OF THE ARGUMENT 1) Prudential's decision under the heightened arbitrary and capricious standard should be given little to no deference given self-serving behavior of Prudential. Sanderson v. The Continental Casualty Corp., 279 F. Supp.2d 466, 473 (D. Del 2003). 2) The administrator's actions were arbitrary and capricious in that Prudential abused its discretion by acting in a self-serving manner when it gave plaintiff's reliable evidence little to no consideration at all. "[T]he Supreme Court in Nord specifically recognized that, `plan 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). It is clear that Prudential did just that by ignoring the favorable SSA decision, doctor's opinions, and credible subjective complaints. 3) Prudential acted in a self-serving manner by selectively using and seeking evidence that supported a denial. Sanderson v. The Continental Casualty Corp., 279 F. Supp.2d 466, 475 (D. Del 2003). Prudential's timing of the requests for Dr. Bandera and Dr. Foye's reports should be questioned, as they were only after the appeal began and when all evidence favored Ms. Goletz. Then, Prudential focused solely on the limited evidence that that she may have been able to work at any occupation, while ignoring evidence that was favorable to her position. 4) Prudential cannot rely on Dr. Bandera's report because it is incorrect in that there was objective evidence to support her complaints of pain. In addition,

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Prudential improperly failed to acknowledge or credit Ms. Goletz subjective complaints despite the 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. 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 are all factors. Even though all of this evidence supported plaintiff's position, Prudential arbitrary decided that she was able to work at any occupation. Dr. Bandera's report is not credible. Dr. Foye's report was based on file review, not an examination and he is highly paid consultant for Prudential. Even though Dr. Foye stated she could work, he questioned if there was "actually" any work available. A-224. Therefore, this court should rule there was not substantial evidence to accept the administrator's decision to deny the plaintiff's LTD under The Plan.

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ARGUMENT I. SCOPE OF THE REVIEW: A. SUMMARY JUDGMENT STANDARD: Summary Judgment is determined under Rule 56(c). Fed.R.Civ.P. 56. "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 *6 (D.Del); Fed. R.Civ.P. 56(c). It has been well established that the court must view all of the evidence in the light most favorable to the non-movant and "draw all reasonable inference in his favor." Id. B. STANDARD OF REVIEW FOR ERISA CASES: 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). Prudential admitted that the standard of review is a heightened arbitrary and capricious standard of review when it did not challenge the request for admissions. A-580. 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 appropriate. Russell v. The Paul Revere Life Ins. Co., 148 F.Supp.2d 392, 400 (D.Del. 2001).

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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. This Court ruled that when using the heightened arbitrary and capricious standard, the court could consider all evidence that was available during the appeals process. Id. More importantly, 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. II. PRUDENTIAL ACTED IN A SELF-SERVING MANNER AND ITS DECISION WAS ARBITRARY AND CAPRICIOUS: 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. Prudential relied on a small amount of unsubstantial and flawed evidence, while it ignored favorable credible evidence provided by her treating physicians that she was unable to work at any occupation. 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

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employment. Prudential also ignored her constant complaints of severe pain despite the overwhelming objective evidence that supported them. Prudential did not decide her case in a neutral manner and very little deference should be given to their decision. Prudential was acting on its own behalf, because it fully funded the Plan and was trying to save money. The denial was self-serving. Therefore, this court should find that the decision was arbitrary and capricious. A. PRUDENTIAL'S DENIAL IN THE FIRST APPEAL WAS SELF-SERVING AND ARBITRARY AND CAPRICIOUS: Prudential was self-serving in the consideration of the evidence during the plaintiff's first appeal. It ignored Ms. Goletz' complaints of pain and the statements from her treating doctors stating that she was unable to work at any occupation. Prudential also improperly sought out an exam by Dr. Bandera when faced with credible evidence that supported a favorable decision. Then, Prudential improperly relied on a flawed medical exam by Dr. Bandera, which failed to properly discuss her condition or how he made his opinion. The record reflected that Ms. Goletz included two additional statements from her doctors that she could not work. A-247-250. Faced with this information, Prudential in August 2002 after a file review with Dr. Foye, decided that have another exam, which was ultimately conducted by Dr. Bandera. A-56. Prudential unilaterally accepted the decision of Dr. Bandera's report over the opinions of her treating physician reports and opinions. A-58. Prudential's own notes demonstrate that there was no consideration or evaluation of M.S. Goletz' treating physicians opinions or her subjective complaints. A-58-59. This was evidenced in the denial letter dated November 27, 2002, which did not discuss any of her other reliable evidence. A-84. In fact, Prudential stated that it received records from Dr. Swartz. A-84. Had Prudential properly considered her medical records, they would have known that the records were from Dr. Rowe, not Dr. Schwartz. This mistake shows how little

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they considered Dr. Rowe's statements and records. In fact, the denial letter in detail discussed the report by Dr. Bandera. A-84. This report was flawed and should have been ignored by Prudential. Under the report's discussion section, Dr. Bandera only briefly commented on his reasoning for his determination. His reasoning that she could work light duty was discussed in only two sentences. A-213. He wrote, "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. Nowhere in Dr. Bandera's discussion did he discuss her treating physician's decisions or opinion that she cannot work. Instead, he merely noted their opinions in her history. A211-13. Nowhere in his discussion did he discuss the inflammatory poly arthritis, her severe carpal tunnel, her strain and sprain or other problems and how they affected her ability to work. Instead, Dr. Bandera gave the blanket finding that the objective findings noted during "examination" multiple subjective complaints, which do not correlate objectively. Had

Prudential looked at Dr. Bandera's findings closer he would have seen that he was incorrect. First, Dr. Bandera was not her treating physician or a specialist like her own doctor, Dr. Tamesis. Dr. Foye even later undermines Dr. Bandera's report. 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 seronegative for rheumatoid arthritis..." A-223-24. Dr. Tamesis noted Dr. Bandera's report was wrong. "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. Prudential could have caught this mistake had they actually looked her medical records and July 11, 2002 letter of Dr. Tamesis. A-246.

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More troubling is how Prudential made its review during this first appeal.

It

specifically chose Dr. Bandera's report without any other consideration of reliable evidence. This court has held that administrators may not arbitrarily refuse to credit a person's reliable evidence such as opinions of the treating physician. Sanderson v. Continental Casualty Corp., 2003 WL 22078075 *2 (D.Del). Here, the record showed that Prudential did not credit any other reliable evidence other than Dr. Bandera's report. A-58. Also, Dr. Bandera does not say that her physician's opinions are unreliable. On November 11, 2002, the soap notes evidence the claims manager did not consider any evidence other than Dr. Bandera's report. A-58. On November 21, 2002, the claims wrote, "While ee may continue to report

symptoms of pain and discomfort, medical evidence in file, including recent PE from IME does not support ee's inability to perform a/o. Therefore, would recommend to uphold initial decision to term claim." A-60. This is a false statement because all of the medical evidence in the file did not support the denial, because all her doctor's reports and medical records supported otherwise. It was improper for Prudential to selectively use that evidence that supported a denial. The Delaware District Court specifically addressed the issue of administrators, like Prudential, who act in a self-serving manner in the consideration of reliable medical evidence. Sanderson, 279 F. Supp.2d at 474. In Sanderson, the insurance company,

Continental, relied heavily on a report by a peer review physician who did not exam the claimant and supported the decision to terminate the benefits. Sanderson, at 474. The peer review physicians only focused on carpal tunnel syndrome and rheumatoid arthritis, and did not discuss her fibromyalgia. Id. The court found it troubling that the doctor had not examined Sanderson personally, "The court finds it suspect that Continental would have so easily accepted his report over the findings of Sanderson's treating physicians, and her own, albeit subjective complaints of pain". Id. In this case, the court should also find it troubling

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that Prudential so easily accepted Dr. Bandera's statement, over all the other credible evidence of her treating physicians. Also, the timing of the exam was suspicious in that it was only requested during her appeal after receiving additional reports from doctors stating she could not work. Prudential should have requested the exam before the initial denial, because Prudential already had opinions and medical records from her treating specialists that she could not work. A-243-45. Prudential has admitted in discovery that, "[t]he treating physicians' opinion is evaluated along with any and all other information submitted or obtained. No one piece of information is determinative." A-578. Despite this admission, there is no evidence from any of Prudential's notes or letters in the first appeal that it considered her treating physician's reports or subjective complaints when making its final decision. What was evidenced was Prudential's true intention to seek out other information to deny her the complaints, while ignoring her credible evidence. B. PRUDENTIAL'S DENIAL IN THE SECOND APPEAL WAS SELF-SERVING AND ARBITRARY AND CAPRICIOUS:

In Ms. Goletz' appeal of February 2003, she included new letters from both Dr. Rowe and Tamesis. A-250-51. She included information about the drug Remicade, and its effects that can cause fatigue and other side effects. A-89. She also wrote,

I also find it disturbing that my declination of my continued disability was decided open one fifteen minute office visit with a Dr. Bandera, a psychiatrist (sic) with whom your corporation informed me was the only doctor that was willing to accept my insurance. Not someone who even specializes in either of the fields for which my condition has been determined. Instead of two of the most well known doctors/surgeons in the Dover area. A-86.

Despite the fact that Dr. Bandera did not discuss or contradict Dr. Rowe and Dr. Tamesis' opinion, Prudential's requested her attending physicians specifically address Dr.

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Bandera's report. A-61. Prudential acknowledged receipt of Dr. Rowe and Dr. Tamesis reports, but failed to explain why rejected their opinions, other than stating, "we provided your physicians an opportunity to comment on the IME report that was performed, and your physicians either declined to respond or submitted narratives that do not address comments related to the IME that was performed." A-94. 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 report over that of her own specialists, other than the pretext that her doctor's did not address Dr. Bandera's report. This was wrong. The Sanderson court stated that it was impermissible for Continental to use evidence which, "supported a denial of the claimant' 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 the Dr. Bandera's report. It did not explain why they did not accept her doctors' opinions over that of Dr. 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.

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In the first appeal denial letter, Prudential made no mention of the prior opinions of the doctors that Goletz could not work. Now, on the second appeal, after receiving four additional narratives in her favor, Prudential again does not discuss why it accepted the brief report of Dr. Bandera over the opinions of her treating physicians. On May 12, 2003, Prudential denied Ms. Goletz second appeal, but stated that she could appeal it for a third and final time. A-95.

C. PRUDENTIAL'S DENIAL IN THE ARBITRARY AND CAPRICIOUS:

THIRD APPEAL WAS

SELF-SERVING AND

On May 23, 2003, Ms. Goletz' attorney, John Grady, wrote to Prudential and appealed the denial of long-term disability benefits for a third time. During the third appeal, Ms. Goletz' received favorable decision and a report by Dr. Tamesis directly addressing Dr. Bandera's report as requested. The Delaware district court noted that, "ERISA plan administrators must provide the notice of denial in writing and wherein they set forth the specific reasons for the denial in easily understandable manner." Sanderson v. Continental Casualty Corporation, 2003 WL 22078075 (D.Del), citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 U.S. 1965, 1967 (2003). In the May 12, 2003 denial letter, Prudential indicated that it wanted or lacked--a favorable Social Security Decision and report by her treating physician specifically addressing Bandera's exam. A-95. Prudential admitted that the Social Security determinations are a factor to the decision. A-578. 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 moved "stiffly." A-231. In Prudential's May 2003 denial

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letter, Prudential stated it was going to leave her case open to follow her Social Security Hearing, however in the next denial letter it stated, "Prudential must evaluate claims based on the terms of the Group Policy independent of the Social Security Administration." A-93, A-106. Prudential later wrote in the same denial letter, "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 overwhelming evidence that Prudential gave SSA decision absolutely no weight. 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. Secondly, 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. In August 2003, Dr. Tamesis, her treating rheumatologist, addressed Dr. Bandera's report. A-254-55. Dr. Tamesis discussed how Dr. Bandera's report was flawed and why should not be considered. A-254-55. Dr. Tamesis pointed out that Dr. Bandera was incorrect in stating she suffered from negative inflammatory arthritis. A-254. Tamesis wrote, "Her correct diagnosis is seronegative

rheumatoid arthritis." A-254. Dr. Tamesis also wrote, "Ms. Goletz' labs correlate with an ongoing inflammatory disease activity that can occur despite no severe swelling. Any

inflammatory arthritis can also produce generalized joint pains and stiffness, such as the shoulder and hip, even in the absence of definite swelling." A-254. Prudential's own Dr. Foye supported Dr. Tamesis opinion that she suffers from inflammatory arthritis. A-223-24. Prudential has long contended that Dr. Bandera claimed that her subjective complaints did not correlate with her objective findings. Based on Dr. Tamesis and Dr. Foye it is clear that there was overwhelming objective evidence that substantiated her subjective complaints. Even

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Dr. Foye noted that with Dr. Tamesis and Dr. Bandera records and the blood work results, "overall it does appear most likely that the claimant does have some type of inflammatory polyarthritis, although she is seronegative for rheumatoid arthritis." A-223. Despite this information, Prudential still cited Dr. Bandera's report in its final denial letter and did not discuss her complaint of pain. A-105. When faced the favorable SSA decision and Dr. Tamesis August 2003 report, Prudential then requested what it called an "external file review". A-64. However, it was not external or independent and it had previous file reviews by Dr. Foye. A-56. Clearly, Prudential was simply seeking other evidence to deny plaintiff's LTD benefits. Prudential turned to its $300 an hour consultant, Dr. Foye. A-576. Dr. Foye had worked Goletz' case since 2002. A-56. This was the same self-serving behavior noted in the Sanderson case. The Sanderson court noted that administrator asked for a "peer review" and then relied on it heavily. The court questioned why the doctor did not contact any of Sanderson's treating physicians or even Sanderson. Sanderson, at 474. Here, Dr. Foye had never examined Ms. Goletz, nor did he contact any of her treating physicians. In a similar case, the Third Circuit questioned the timing of an IME. Kosiba v. Merck & Co., 384 F.3d 58, 68, cert. denied, Merck & Co., Inc. v. Epps-Malloy, --- S.Ct. ----, 2005 WL 192218, 73 USLW 3465, 73 USLW 3667, 73 USLW 3672 (U.S. May 16, 2005). In deciding whether or not to use a heightened arbitrary and capricious standard, the Third Circuit considered it suspicious that an IME was requested during the appeal. Id. The court did acknowledge that IMEs are sometimes helpful to administrators. Kosiba, at 68. In questioning the IME, the court held the timing the IME subjected the administrator to a higher level of scrutiny. The court stated: We have a claimant seeking continued LTD benefits whose treating physicians offer unequivocal support of her claims, and a plan administrator that has delegated claims administration to a large insurance company intervening--not

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at the initial determination stage, but at the appeal stage--with a request for an additional medical examination to be performed by a physician of it own choosing. Id, at 68.

The suspicious timing of the IME in Kosiba was very similar to Prudential's timing of the "external" file review by Dr. Foye. When Dr. Tamesis contradicted Dr. Bandera's report, Prudential chose then to conduct "an external file" review by its own $300 an hour, Dr. Foye. More suspicious is the fact that Prudential selected only the portions of Dr. Foye's report that supported a denial to of the claim, while ignoring that questioned Dr. Bandera's report and whether with her restrictions there was any gainful occupation. A-223-24. In Mitchell v. Prudential Health Care Plan, the court addressed the issue of when certain portions are used while other portions are simply ignored. Mitchell v. Prudential Health Care Plan, 2002 WL 1284947 *9 (D.Del.). "This apparent willingness to use the helpful potions 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 self­interest." Mitchell, at *9, See also Pinto v. Reliance Standard Life Ins., 214 F.3d 377, 394 (3rd Cir. 2000). In addition, Prudential did not acknowledge Dr. Foye's review undermined Dr. Bandera's findings and exam. Dr. Foye opined from the records that the recurrent inflammation/synovitis would create difficulty for her to repetitive hand activities. A-224. 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. 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. Even though Dr. Foye stated that she would be capable would full time work with these restrictions, he questioned if there was any work available to her. A-224. He wrote, "I recommend considering vocational

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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). Prudential did not conduct a new vocational assessment as suggested by Dr. Foye. A-66. Instead, Prudential relied on the November 2003 vocational assessment using Dr. Bandera's restrictions. A-66, A-58. Had Prudential acted in a neutral manner, they 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. A-224. Whereas the previous vocational assessment did not have this restriction and even stated it, "would consider no more than occasional keyboarding," and stated she was capable of light duty work. A-213. Dr. Foye never stated she 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. A-224. The court in Mitchell addressed this issue of not following out recommendations. Mitchell, at *9. There 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. Clearly,

Prudential abused its discretion by not conducting a new vocational assessment; instead it claimed that it had already performed one. This is proof that Prudential was acting in a selfserving manner. Prudential did not give any credit to claimant's reliable evidence--Social Security decision, subjective complaints, and treating physician's opinions. Even though the Supreme Court ruled against giving special weight to the treating physician, the Court did rule that, "[p]lan administrators may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating p