Free Findings of Fact & Conclusions of Law - District Court of Arizona - Arizona

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Case 2:03-cv-01340-SRB

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) American Express Corporation;) Metropolitan Life Insurance Company, ) ) ) Defendants. ) ) Sybol Terrell-Sims,

No. CV03-1340-PHX-SRB FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER

The matter was tried to the Court on March 24, 2006. The evidence consists of Defendant's Exhibit 2001, the Administrative Record of this ERISA claim and Plaintiff's Exhibit 1, excerpt of the Summary Plan descriptions. No evidence outside the

Administrative Record will be considered. Plaintiff's Exhibits 2-6 are refused.

FINDINGS OF FACT

1.

Plaintiff Sybol Terrell-Sims became employed with American Express Travel

Related Services Company, Inc. ("American Express") in November 1997. 2. As an employee of American Express, Plaintiff was eligible for various employee benefits provided by the American Express Health and Welfare Plan ("the Plan"), including

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Family Medical Leave Act ("FMLA") leave, salary continuation or short-term disability benefits and long-term disability ("LTD") benefits. 3. MetLife administered FMLA benefits for American Express and also

administered, but did not fund, salary continuation benefits. American Express funded salary continuation benefits. 4. 5. MetLife administered and funded LTD benefits. The Plan provided for salary continuation benefits for the first 26 weeks of an

employee's disability, and LTD benefits for any period of continued disability longer than six months. 6. The Plan documents governing salary continuation benefits provided that,

"Your doctor will need to provide medical documentation to prove that you're disabled. Proof of your disability is your responsibility and is to be provided at your expense to the claims administrator." [Ex. 1 at Met-Sim0016] 7. The Plan documents governing salary continuation benefits define "Disability or Disabled" to mean "[d]ue to any injury or sickness, you require the regular care and attendance of a doctor and you are unable to perform each of the material duties of your regular job." [Ex. 1 at Met-Sim0022]. 8. The Plan documents governing LTD benefits defined "Total Disability" as: A disability caused by sickness, disease, injury, pregnancy or related mental impairment for which you are under the care of a doctor. During the first two years of Long Term Disability payments, because of sickness or injury, you're unable to perform any and every duty of your regular job. Or, you're unable to perform all of the material duties of your job on a full-time basis, but are performing at least one of the material duties of the job or any other gainful work on a part-time or full-time basis. . . . Thereafter, total disability means you cannot perform each of the material duties of any gainful work or service for which you're reasonable qualified, taking into consideration your training, education, experience, and past earnings (except rehabilitative employment). [Ex. 1 at AMEXTS01509]

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9.

The Plan documents for the American Express LTD plan designate MetLife as

the "Claims Fiduciary" for LTD benefits. The LTD plan documents further provide that the "Claims Fiduciary," has "discretionary authority and fiduciary responsibilities under ERISA to make claim determinations and to provide a full and fair review of appealed claims including determining any final appeals of claim." [Ex. 1 at AMEXTS01564]. 10. Plaintiff was involved in a motor vehicle accident on November 16, 2001, on

her way home from work. Plaintiff was injured in the accident and sought medical treatment. 11. On December 24, 2001, MetLife received a Medical Health Care Provider Certification seeking approval for FMLA leave for Plaintiff. Plaintiff's primary care physician, Dr. Jeffers, wrote that Plaintiff was having severe muscle spasms in her upper back and neck muscles as a result of the motor vehicle accident. Dr. Jeffers indicated that Plaintiff remained able to work in her job, but that she would need to attend physical therapy twice per week for four to six weeks. 12. On January 7, 2002, MetLife approved intermittent FMLA leave for Plaintiff

so that she could attend physical therapy. 13. On August 7, 2002, Dr. Jeffers again prescribed physical therapy for Plaintiff.

Plaintiff attended physical therapy twice a week for about five weeks and continued to work. 14. Plaintiff's last day at work at American Express was November 6, 2002. On

November 11, 2002, Plaintiff contacted MetLife to make a claim for salary continuation benefits and FMLA leave. Plaintiff claimed that she could not work as a result of pain in her neck, left shoulder and back for which she was seeking physical therapy three times per week. 15. There is no indication in the Administrative Record that any of Plaintiff's

medical providers had recommended that Plaintiff stop working in November 2002. 16. On November 12, 2002, MetLife wrote to Plaintiff and requested certain records supporting her claim for salary continuation benefits. 17. Also on November 12, 2002, Plaintiff began treating with Dr. Paige, a family

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18. On November 20, 2002, Dr. Paige's nurse practitioner completed a Health Care Provider Certification in connection with Plaintiff's request for FMLA leave. This form indicated that Plaintiff would need to take leave only intermittently or to work less than a full-time schedule because of the injuries she had sustained in the November 2001 motor vehicle accident, and that Plaintiff would need to attend physical therapy three times per week for 24 to 36 weeks. 19. On December 2, 2002, Dr. Paige's progress notes reflect that she diagnosed

Plaintiff as suffering from depression, fatigue, and anxiety. She also noted that Plaintiff was to see Dr. Little, a psychologist, in two weeks but there is no indication in the Administrative Record that Plaintiff ever saw Dr. Little. 20. On December 16 and 17, 2002, MetLife notified Plaintiff of the approval of her claims for FMLA leave and salary continuation effective on November 7, 2002 through December 2, 2002. Both of these letters stated that MetLife anticipated that Plaintiff would return to work on her first scheduled workday after December 2, 2002. Each letter also advised Plaintiff that if her disability continued after December 2, 2002, she was required to submit specific medical information from her health care provider. The letters also advised that if no additional information was received her claim would be closed on December 31, 2002. 21. On December 23, 2002, Plaintiff's supervisor wrote to Plaintiff regarding her

FMLA leave and salary continuation claims. Plaintiff's supervisor raised concerns that Plaintiff has not returned to work as expected. This letter stated in relevant part that: You need to return to work or provide MetLife with medical documentation to support additional time away from work. Failure to comply with one of these options by December 26, 2002 will result in your voluntarily separation from the company. It is also important to note that you need to contact me at 973324-5812 by December 26, 2002, to discuss your employment status. Voicemails are prohibited. Failure to comply with the terms of this letter will result in the company processing your voluntarily resignation effective December 29, 2002 for failure to return from leave. -4Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 4 of 21

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[AdmRec0557]. 22. On December 24, 2002, MetLife's claims representative spoke with Plaintiff

who stated that her physician, Dr. Paige, was out of the office on vacation and would not return until January 2, 2003. Plaintiff stated that she would provide documentation from her physician once she returned. 23. On January 2, 2003, Plaintiff began attending physical therapy again.

24. On January 3, 2003, Plaintiff was seen again by Dr. Paige. Dr. Paige's progress notes stated that Plaintiff was to see psychiatrist Joann Gallagher, M.D. on January 21. 25. 26. Plaintiff cancelled her appointment with Dr. Gallagher and never rescheduled. On January 6, 2003, Plaintiff's supervisor wrote to Plaintiff again to follow-up

on why Plaintiff had not returned to work. Although the prior letter of December 23, 2002 had indicated that Plaintiff would be treated as having voluntarily resigned effective December 27, 2002, the January 6, 2003 letter extended Plaintiff's deadline to either return to work or provide MetLife with medical documentation necessary to support extension of her leave no later than January 10, 2003. American Express explained that if Plaintiff failed to return to work or provide MetLife with the necessary documents, the company would consider her to have voluntarily resigned. 27. On January 10, 2003, the nurse practitioner assisting Dr. Paige faxed a

certification to MetLife that stated for the first time that Plaintiff was unable to work. This certification indicated that Plaintiff was disabled as a result of muscle spasms, insomnia, depression and anxiety for an unknown duration. The certification stated that Plaintiff was "unable to perform work duties due to cognition." [AdmRec0182]. 28. On January 24, 2003, MetLife called and left a message for Plaintiff, informing her that MetLife was unable to extend her claim for salary continuation benefits based on the documentation provided, and that MetLife would need office visit notes from all of Plaintiff's treating healthcare providers. MetLife also advised Plaintiff that although MetLife could assist her in requesting the medical records, MetLife would need to know the names, phone numbers and fax numbers of all of the treating healthcare providers. MetLife also -5Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 5 of 21

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informed Plaintiff that she would be sent a letter stating that if this requested information was not received within 10 days, MetLife would close Plaintiff's claim. 29. Also on January 24, 2003, MetLife placed a call to American Express regarding the status of Plaintiff's claim. MetLife advised American Express that Plaintiff needed to be given the benefit of the doubt, as it appeared there were other treating healthcare providers from whom MetLife had not yet received information. 30. On January 27, 2003, MetLife sent a follow-up letter to Plaintiff stating that in order to consider extending her benefits, MetLife would need additional records from Plaintiff's physicians. The letter stated that if the information was not received by February 10, 2003, MetLife would close Plaintiff's claim. Some additional medical records were submitted by Plaintiff before the February 10 deadline. 31. On February 9, 2003, MetLife's claim representative referred Plaintiff's claim

to a nurse consultant to review whether the medical documentation received by MetLife supported an extension of disability benefits beyond December 2, 2002. 32. MetLife's nurse consultant reviewed Plaintiff's claim on February 14, 2003.

The nurse consultant noted that the normal duration for similar back injuries was 21 days. The nurse consultant concluded that the medical records on file did support an extension of salary continuation benefits through the Plaintiff's last visit to her physician on January 21, 2003. As of the date the file was reviewed by the nurse consultant, the records from a two day hospital stay and subsequent follow up with a neurologist, had not yet been received by MetLife. The nurse consultant stated that the claims manager needed to request all additional existing records that had not yet been sent to MetLife, including an MRI of Plaintiff's neck and back, renal ultrasound findings, EKG results, and lab results. The nurse consultant also recommended sending requests for records to all treating doctors and any psychiatrists that Plaintiff was seeing. 33. On February 19, 2003, MetLife sent a letter to Plaintiff stating that it had

approved the extension of her salary continuation claim through January 31, 2003. MetLife stated that it anticipated that Plaintiff would have returned to work on February 1, 2003. The -6Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 6 of 21

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letter also stated that in order to continue the claim beyond January 31, 2003, Plaintiff would need to submit additional medical records supporting her disability. The letter went on to notify Plaintiff that MetLife intended to close Plaintiff's claim if this additional information was not received by March 6, 2003. 34. On March 3, 2003, Plaintiff consulted with a neurologist regarding her ongoing complaints of left shoulder pain. He reviewed Plaintiff's imaging studies and commented that "They really do not identify a clear-cut etiology for her radicular pain." [AdmRec222]. The neurologist also decided to refer Plaintiff for a consultation with an orthopedic surgeon. 35. Plaintiff did not provide MetLife with the requested additional medical records supporting her disability by the March 6, 2003 deadline stated in the February 20, 2003 letter. As a result, on March 20, 2003, MetLife sent Plaintiff a letter stating that it had closed her claim. MetLife's letter advised Plaintiff that although her claim was closed, Plaintiff had a right to an administrative appeal from this decision. 36. MetLife received additional medical records on April 3, 2003. The records

from Plaintiff's hospitalization from January 31, 2003 through February 2, 2003 were not included in this set of records. 37. These records did include her neurologist's January 20, 2003 report, stating that Plaintiff's break-away weakness and lack of effort made interpretation somewhat unreliable. 38. Also included in the new records was a phone message dated February 2, 2003

from Plaintiff to Dr. Paige stating that Plaintiff "plans to return to work on 3/1/03." [AdmRec631]. 39. On April 11, 2003, MetLife's claims representative asked one of MetLife's

disability resource specialists whether these additional documents could be accepted and reviewed for a possible claim extension, even though they had been received after the March 20, 2003 letter closing Plaintiff's claim. On May 2, 2003, MetLife's disability resource specialist agreed that these new medical records should be accepted, and that the file should be referred back to a nurse consultant for further review.

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40.

On May 12, 2003, MetLife's nurse consultant reviewed Plaintiff's claim,

including the new medical records. The nurse consultant reviewed the neurologist's January 20, 2003 report and a February 14, 2003 report from Dr. Paige's office. The nurse consultant noted that the documents on file did not provide clinical objective test findings or medical support for a severity of illness that would preclude Plaintiff from returning to work at a sedentary level job class. The nurse consultant also noted that Plaintiff's functional impairments were not addressed in the records provided, and that certain clinical objective findings such as the MRI of Plaintiff's neck and back ordered after Plaintiff's January 20, 2003 consultation with the neurologist had not been provided. The nurse consultant recommended that the denial be maintained. 41. Also on May 12, 2003, Plaintiff consulted Michael A. Steingart, D.O., an

orthopedic specialist for complaints relating to her left shoulder. Dr. Steingart's report states that Plaintiff could work, subject to restrictions regarding overhead activities and lifting items heavier than 15 pounds. Dr. Steingart observed that "This is a complex case because there is no clear cut etiology for her cervical/lumbar radiculopathy." [AdmRec294]. 42. On May 15, 2003, MetLife's claim representative reviewed the nurse

consultant's notes and agreed that the decision to terminate salary continuation benefits should be upheld. The claim representative then forwarded the recommended denial to MetLife's disability resource specialist for review. 43. On May 19, 2003, Plaintiff had the MRI on her left shoulder recommended by Dr. Steingart. This MRI demonstrated mild degenerative arthritic changes to Plaintiff's left shoulder with no evidence of any impingement syndrome and no evidence of any rotator cuff or labral tears. 44. On May 22, 2003, MetLife's disability resource specialist agreed with the claim representative's recommendation that the termination of benefits should be upheld. 45. Before the termination letter could be sent, MetLife received a letter dated May 21, 2002 from Plaintiff's attorney appealing the termination of Plaintiff's salary continuation benefits. -8Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 8 of 21

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46.

In the appeal letter, Plaintiff's attorney requested an extension of time within

which to file the appeal. Plaintiff's attorney also requested a copy of MetLife's entire claim file. Plaintiff's attorney did not enclose any additional records with the appeal letter. 47. On May 29, 2003, Plaintiff underwent a cervical epidural injection prescribed

by Dr. Steingart. Plaintiff reported relief of her pain and was ordered to follow up with Dr. Steingart again in one month. 48. Also on May 29, 2003, Plaintiff saw a psychologist, Zelda Hittel, Ph.D.

Plaintiff saw Dr. Hittel only twice: on May 29, 2003 and on June 5, 2003. 49. Dr. Hittel's report dated July 25, 2003 stated that Plaintiff had become unhappy working at American Express in the fall of 2002 after a change in management. Plaintiff reported that there was a change in Plaintiff's responsibilities and what Plaintiff described as a hostile work environment. 50. On June 2, 2003, Plaintiff followed up with her neurologist again. Plaintiff

reported that since her epidural injection she had experienced significant decreases in her level of pain, that the level of pain was tolerable, and that she continued to improve. 51. On June 13, 2003, MetLife sent a letter to Plaintiff acknowledging that it had

received the appeal letter from her attorney and informed Plaintiff that any additional information she wished to have considered in connection with the appeal must be submitted within 30 days. 52. During the latter half of June 2003, MetLife received additional medical records from Plaintiff. 53. On June 30, 2003, MetLife produced a copy of Plaintiff's entire claim file to

Plaintiff's attorney. 54. On August 8, 2003, MetLife considered Plaintiff's appeal in conjunction with

the entire claim file, including the additional documents submitted in connection with the appeal. 55. After reviewing the available documents, MetLife decided that there was still

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Plaintiff's salary continuation benefits beyond January 31, 2003. MetLife determined that it needed to obtain additional medical records from a number of Plaintiff's healthcare providers, including records from Plaintiff's psychiatrist, neurologist, orthopedic surgeons and cardiologists, as well as laboratory test results. MetLife also decided that it needed additional information regarding Plaintiff's level of functionality and her work restrictions in order to make a claim decision. MetLife's appeal department recommended that the decision to terminate Plaintiff's salary continuation benefits be reversed, but that no benefits should be paid pending a request to Plaintiff's attorney to provide the additional medical records and vocational information within a specified time. 56. On August 11, 2003, the manager of MetLife's appeals department agreed with this recommendation, and requested that MetLife's claims manager obtain medical records from all of the healthcare providers in an effort to make a fair determination. 57. On August 14, 2003, MetLife sent a letter to Plaintiff's attorney stating that

Plaintiff's appeal was not complete and requesting medical records from the following healthcare providers who the available records indicated had treated Plaintiff: Dr.

Gallagher,1 Dr. Hittel, Dr. Reynolds, Dr. Steingart, Dr. Barry, and Plaintiff's attending physical therapist. 58. On September 10, 2003, Plaintiff consulted with Dr. Stanford Roth, a Dr. Roth observed that Plaintiff exhibited eighteen of the classical

rheumatologist.

fibromyalgia tender points. He prescribed Oxycontin for her condition. 59. On September 23, 2003, MetLife received a letter dated September 17, 2003

from Plaintiff's attorney enclosing many of the records that MetLife had requested. Dr. Roth's records were not included in the documents that MetLife received from Plaintiff's attorney.

1

As noted above, Plaintiff had cancelled her appointment with Dr. Gallagher and never rescheduled it. - 10 Document 82 Filed 05/19/2006 Page 10 of 21

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60.

Before MetLife could decide the appeal, Plaintiff filed suit against both

American Express and MetLife. 61. After the litigation was filed, the parties filed a Joint Case Management Plan,

MetLife contended that because Plaintiff had filed suit before her appeal was finally decided, Plaintiff failed to exhaust her administrative appeals, and was therefore barred from recovering under ERISA. Thereafter, Plaintiff and MetLife stipulated that Plaintiff could submit additional medical records and information, and that MetLife would consider Plaintiff's appeal without asserting that Plaintiff had failed to exhaust her administrative remedies. After entering into the stipulation, Plaintiff submitted numerous additional documents to MetLife in support of her claim of disability. 62. At the same time Plaintiff was pursuing her appeal with MetLife she was also

pursuing social security benefits. Benefits were denied initially. In December of 2003 Plaintiff's petition to reconsider the denial of her application for social security benefits was granted. 63. In June 2005, Plaintiff stipulated to dismiss all of her claims against American

Express with prejudice. 64. On July 22, 2005, MetLife requested a peer file review of Plaintiff's file by a

psychiatrist, by an internal medicine doctor, and by a pain medicine doctor. 65. Plaintiff's file was reviewed by the following board certified specialists: a) Phillip Jordan Marion, M.D., M.S., M.Ph. (board certified in physical medicine and rehabilitation; board certified in pain management; associate clinical professor at George Washington University Medical Center); b) Leonard Sonne, M.D., FACP, FCCP (board certified in internal medicine; board certified in pulmonology; member of the academy of Sleep Medicine; member of the American College of Hyperbaric Medicine); and c) Marcus J. Goldman, M.D. (board certified by the American Board of Psychiatry and Neurology).

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66.

Dr. Marion issued a five page report on July 29, 2005. Relevant findings from

Dr. Marion's report include the following: There remains no objective impairment per neurological examination, physical examination, laboratory studies, or extensive radiological studies to support specific limitations or restrictions; *** Extensive laboratory and radiological studies also have essentially unremarkable or normal. There remains no objective impairment to support any specific occupational restrictions or limitations. She is otherwise independent with activities of daily living and ambulation; *** The medical information does not support functional limitations. The clinical findings and data lack any specific or neurological deficits that would support any specific limitations or restrictions. In addition, the extensive laboratory and radiological studies are also normal and unremarkable and would not support any specific work restrictions or limitations. [AdmRec42]. 67. Dr. Marion completed a two page "Medical Consultant Review - Estimation of

Physical Capacities" form for MetLife. Dr. Marion noted no restrictions except those relating to her use of muscle relaxants and narcotic opioids. 68. Dr. Sonne also issued a four page report on July 29, 2005. Dr. Sonne answered

a number of specific questions posed by MetLife. His relevant comments included: There is no objective finding to support significant impairment. There is no limitation in her ability to function documented. There are no specific restrictions due to safety issues. . . *** Based on the medical records reviewed, Ms. Sims is fully functional. *** The medical information does not support any functional limitations. [AdmRec48-49]. 69. Dr. Sonne also completed a "Medical Consultant Review-Estimation of Physical Capacities" form for MetLife. He also noted no restrictions.

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70. Dr. Goldman issued a six page report on July 29, 2005. Dr. Goldman's relevant findings include: Based on a review of the available information, the medical information available for review does not support any functional limitations due to a psychiatric disorder. A review of this record was noteworthy for the almost total absence of data pertaining to psychiatric issues. The vast majority of data in this record was from 2003. Her primary care doctor, Dr. Paige, addressed mental health issues minimally. It should be noted that neurological and mental status examination were generally checked off as being grossly intact or within normal limits. The psychiatric or psychological evaluations that were available for review were few and far between. Indeed, for the time period in question there were only three narrative mental health progress notes. Two of them, from Dr. Hittel, were extremely cursory and poorly comprehensive; they were without any significant mental status or cognitive examinations. The content of Dr. Hittel's letter, in which she describes the two sessions, is inconsistent with the content of her two narrative progress notes. . . Dr. Zerrudo's examination dated 10/18/03 was comprehensive. However, a review of this information reveals data that is almost wholly subjective in nature. The mental status examination was notable for depression and rather minor or mild cognitive deficits. She was not suicidal or homicidal. There are no data that indicate a global lack of functionality due to a debilitating psychiatric disorder. It is should further be noted that three sessions with mental health providers for an entire year is wholly inconsistent with a level of acuity and/or severity that is typically associated with psychiatric incapacity. It should also be noted that Ms. Simms' trip to Alabama would be further evidence of a lack of acuity or severity. Individuals suffering from acute and severe mental disorders or psychiatric illnesses typically do not travel to other states for visits. In addition, notes from other medical specialist do not note any other particular psychiatric symptomatology. She is described as being in no distress during the course of serial examinations with a multitude of other providers. This indicates a lack of global impairment of functionality. If indeed Ms. Simms were to be globally incapacitated, fragile, or significantly depressed, or otherwise mentally ill, such a condition would likely be noticed by at least one of her other non-psychiatric providers. There are no significant objective or corroborative data to substantiate her subjective complaints. [AdmRec56]. 71. Dr. Goldman completed a "Mental Residual Functional Capacity Assessment"

form for MetLife. In every category, Dr. Goldman found "no evidence of limitation in this category." 72. MetLife issued its decision on Plaintiff's appeal on August 2, 2005. After summarizing Plaintiff's medical history and the reports from the three independent physician consultants MetLife concluded that the information submitted for file review lacked - 13 Document 82 Filed 05/19/2006 Page 13 of 21

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supportive evidence of a severity of an impairment due to injury or sickness that supported Plaintiff's inability to perform each of the material duties of her sedentary occupation. MetLife affirmed its determination to terminate Plaintiff's salary continuation benefits after January 31, 2003.

CONCLUSIONS OF LAW

1.

The Court has subject matter jurisdiction of this dispute on federal questions

arising under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § § 1001-1461 ("ERISA")

Plaintiff Has No Claims Against MetLife Except Claims for LTD Benefits

2.

The only issue to be resolved in this case is Plaintiff's entitlement to LTD

benefits. MetLife only administered salary continuation claims for American Express and American Express remained liable to fund any such benefits out of its own assets. All claims for salary continuation benefits were therefore resolved when Plaintiff's dismissed all of her claims against American Express with prejudice in June 2005. 3. The termination of Plaintiff's claim for salary continuation benefits is relevant,

however, to the remaining claim for LTD benefits. In order to be eligible for LTD benefits, Plaintiff was required to establish that she had been totally disabled, as such term was defined by the LTD plan, for six months. If MetLife correctly found that Plaintiff was not totally disabled for the entire six month waiting period, she was not entitled to LTD benefits. 4. Plaintiff also does not have any claims against MetLife relating to her claimed

loss of certain stock options. No such claim was asserted against MetLife in Plaintiff's second amended complaint. [Docket No. 13]. Plaintiff also failed to raise any issue about these stock options in the joint case management plan. [Docket No. 10]. As with salary continuation benefits, American Express and not MetLife would have been liable for any - 14 Document 82 Filed 05/19/2006 Page 14 of 21

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claim concerning stock options. Because Plaintiff released all of her claims against American Express, no claims relating to her stock options survived. 5. Plaintiff has no claim against MetLife under the FMLA. MetLife administered

FMLA benefits for American Express. The FMLA generally provides for 12 weeks of medical leave if an employee has a serious health condition that makes the employee unable to perform the functions of the position of such employee. See 29 U.S.C. § 2612(a)(1)(D). MetLife, as the administrator of American Express's FMLA program, approved Plaintiff's request for FMLA leave for the twelve week period between November 7, 2002 and January 31, 2003. Consequently, MetLife could not have violated the FMLA by failing to approve requested FMLA leave.

The "Abuse of Discretion" Standard of Review Applies

6.

The plan documents unambiguously grant MetLife discretion to determine

eligibility for benefits. Because the Plan grants MetLife discretionary authority to determine benefit eligibility, this Court is limited to reviewing MetLife's decision to deny Plaintiff's claim for LTD benefits for an abuse of discretion. See Banuelos v. Construction Laborers' Trust Fund for So. Cal., 382 F.3d 897, 904 (9th Cir. 2004). 7. A heightened standard of review might be appropriate for plans granting such

discretionary authority to determine benefit eligibility if a conflict of interest arises because the insurance company which both administers claims and insures benefits has allowed its own self interest to cause it to breach its fiduciary duties to a plan beneficiary. See e.g., Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 875-76 (9th Cir. 2003). Because MetLife only administered, and did not fund, salary continuation benefits for American Express, MetLife could not have had such a conflict of interest in deciding whether to terminate Plaintiff's salary continuation benefits after January 31, 2003. See Williams v. UNUM Life Ins. Co. of Am., 250 F. Supp. 2d 641, 646 (E.D. Va. 2003) (when employer's short-term disability program is self-funded, insurance company that administers - 15 Document 82 Filed 05/19/2006 Page 15 of 21

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short-term program, and funds long-term program does not operate under an apparent conflict of interest in handling of short- term benefits.) 8. In order to obtain a heightened standard of review, Plaintiff has the burden of

providing "material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary's self-interest caused a breach of the administrator's fiduciary obligations to the beneficiary." Tremain v. Bell Industries, Inc. 196 F.3d 970, 976 (9th Cir. 1999). Plaintiff has failed to come forward with any such material probative evidence, beyond the mere fact of an apparent conflict, tending to show that MetLife's alleged self- interest caused it to breach its obligations to Plaintiff. 9. The abuse of discretion standard of review is applicable in this case.

No Evidence Outside the Administrative Record Will be Considered.

10. At the trial on March 24, 2006, Plaintiff stipulated that the administrative record considered by MetLife in deciding the final appeal of Plaintiff's claim for LTD benefits was admissible in evidence. The administrative record was marked as Exhibit 2001 and contained 656 pages bates stamped AdmRec0001 to AdmRec0656. 11. At trial, the parties also stipulated that Plaintiff's Exhibit 1, comprising relevant pages from the summary plan descriptions of the American Express Employee Health and Welfare Plan was also admissible. 12. At trial, the Court provided Plaintiff with the opportunity to offer in evidence

any other documents she believed were relevant to the dispute. Plaintiff offered Plaintiff's Exhibits 2-6. They are: 2. Documents related to Plaintiff's stock options; 3. Plaintiff's medical records from Banner Desert Medical Center relating to Plaintiff's hospitalization from April 28, 2005 through April 30, 2005;

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4. Plaintiff's medical records from Douglas Schwartz, M.D. relating to an endoscopy and a colonoscopy performed on Plaintiff on May 11, 2005; 5. Medication information; and 6. Time data information. MetLife objected to the admission of Exhibits 2-6.

6 13. 7 permits the district court to review only the evidence presented to the plan trustees." 8 9 2004). This is because "[p]ermitting a district court to examine evidence outside the 10 administrative record would open the door to the anomalous conclusion that a plan 11 administrator abused its discretion by failing to consider evidence not before it." Taft v. 12 13 14. 14 attorneys ever provided MetLife with copies of the documents comprising Exhibits 2, 3, 5, 15 and 6. Those documents cannot be considered to be part of the administrative record and will 16 not be admitted into evidence. 17 15. 18 had been sent by certified mail to MetLife's attorney and included certified mail receipts to 19 show that such records had been sent to MetLife's attorney. 20 16. Even if the records contained in Plaintiff's Exhibit 4 were considered to be part 21 of the administrative record, it would not change the outcome of this litigation. The 22 documents comprising Exhibit 4 related to an endoscopy and colonoscopy performed on 23 Plaintiff in May 2005. These procedures were performed over two years after the relevant 24 time period comprising the six month eliminations period beginning in November 2002 and 25 ending in April 2003. 26 hemorrhoids. There is no evidence that Plaintiff suffered from these conditions in early 2003 27 or that these conditions (separately or considered in conjunction with Plaintiff's other 28 - 17 Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 17 of 21

The Ninth Circuit has "clearly established that the abuse of discretion standard

Banuelos v. Construction Laborers' Trust Fund for So. Cal., 382 F.3d 897, 904 (9th Cir.

Equitable Life Assurance Soc'y, 9 F.3d 1469, 1473 (9th Cir. 1994). There is no evidence indicating that Plaintiff, her health care providers, or her

At trial Plaintiff contended that copies of the documents comprising Exhibit 4

These procedures disclosed mild gastritis and small internal

1 2 3 4 5 6 7

medical conditions) would have adversely affected Plaintiff's ability to perform her job duties.

The Administrative Record Does Not Demonstrate That MetLife Abused Its Discretion in Denying LTD Benefits

17.

An ERISA administrator such as MetLife abuses its discretion "only if it (1)

8 renders a decision without explanation, (2) construes provisions of the plan in a way that 9 conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of 10 fact." Boyd v. Bell, 410 F.3d 1173, 1178 (9th Cir. 2005); Bendixen v. Standard Ins. Co., 185 11 F.3d 939, 944 (9th Cir. 1999). 12 18. MetLife did not render its decision without an explanation to Plaintiff. MetLife

13 provided Plaintiff with a six page letter explaining the basis for its decision. MetLife based 14 its decision on the opinions of three board certified specialists who had reviewed Plaintiff's 15 file. 16 19. There is no evidence that MetLife interpreted any provision of the Plan in a way

17 that conflicted with the Plan's plain language. 18 20. MetLife did not rely on any clearly erroneous findings of fact in making its

19 determination to terminate Plaintiff's salary continuation benefits and deny LTD benefits. 20 21. MetLife's factual determination that Plaintiff was not disabled was made only

21 after having board certified specialists in all of the potentially relevant medical fields review 22 Plaintiff's medical records. All three of these doctors agreed that the records did not support 23 a finding that Plaintiff's conditions were so severe as to preclude her from performing her 24 sedentary job duties. Many of Plaintiff's own physicians had found that there was no clear 25 cut etiology for Plaintiff's complaint of pain. MetLife did not abuse its discretion in 26 determining that Plaintiff did not qualify for LTD benefits. 27 22. MetLife acted reasonably in crediting the opinions of its independent physician

28 consultations over the conclusory and often tentative opinions expressed by Plaintiff's treating - 18 Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 18 of 21

1 physicians. "The mere fact that MetLife favored the opinions of the independent reviewers 2 in not proof of arbitrary or capricious conduct." Sweatman v. Commercial Union Ins. Co., 39 3 F.3d 594, 602 (5th Cir. 1994); Sandoval v. AETNA Life and Casualty Ins. Co., 360 F.3d 211, 4 214 (1st. Cir. 2004) (a nonexamining physician's review of a claimant's file is reliable medical 5 evidence supporting a denial of benefits); Voight v. Metropolitan Life Ins. Co., 28 F. Supp. 6 2d 569, 580 (S.D. Cal. 1998). 7 8 9 10 11 24. As an ERISA plan administrator, MetLife was not bound by the Social Security

The Social Security Administration's Decision to Award Disability Benefits to Plaintiff was not Binding on MetLife

12 Administration's determination that Plaintiff was disabled and entitled to benefits. See 13 Madden v. ITT Long-Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1286 (9th 14 Cir. 1990), cert. denied 498 U .S. 1087 (1991); Whitaker v. Harford Life and Accident Ins. 15 Co., 404 F.3d 947, 949 (6th Cir. 2005) ("an ERISA plan administrator is not bound by an SSA 16 disability determination when reviewing a claim for benefits under an ERISA plan."); Pari17 Fasanov v. ITT Hartford Life &i Accident Ins. Co., 230 F.3d 415, 420 (2nd Cir. 2000) 18 ("benefits eligibility determinations by the Social Security Administration are not binding on 19 disability insurers."). 20 25. An ERISA plan fiduciary such as MetLife is not bound by the Social Security

21 Administration's determination that a plan participant is disabled because of the differences 22 between Social Security disability and disability under an ERISA plan. Although the Social 23 Security Administration is required to give deference to a Plaintiff's physician's opinions 24 regarding disability, an ERISA fiduciary is not under a similar obligation. See Black-n25 Decker Disability Plan v. Nord, 538 U.S. 822 (2003). See also Couture v. UNUM Provident 26 Corp., 315 F. Supp. 2d 418, 420 (S.D.N.Y. 2004) ("The SSA is bound by its own rules to give 27 substantial weight to the opinion of treating physicians, but the administrator of a private Plan 28 - 19 Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 19 of 21

1 is not so bound and is permitted to give such weight as it deems appropriate to the opinion of 2 a treating physician, as long as that opinion is considered.") 3 . 4 5 6 7 26. Plaintiff has suggested that MetLife abused its discretion because it did not

MetLife was not Required to Request that Plaintiff Submit to an Independent Medical Examination

8 require Plaintiff to submit to an independent medical examination. 9 27. There is no evidence in the administrative record that Plaintiff ever requested

10 that MetLife have Plaintiff examined by an independent physician. 11 28. ERISA does not require that a Plan fiduciary request a plaintiff to submit to an

12 independent medical examination before determining disability. See Jordan v. Northrup 13 Gruman Corp., 63 F. Supp. 2d 1145, 1158 (C.D. Cal. 1990); Gannon v. MetLife, 360 F.3d 14 211, 214 (1st Cir. 2004). 15 16 17 18 29. 29 U.S.C. §1132(g)(1) grants discretion to the Court to award attorneys' fees and

Attorneys' Fees and Costs

19 costs. No award will be made except upon motion filed in accordance with LRCiv. 54.2 and 20 upon briefing of the standard for award of fees and costs to a prevailing plan fiduciary. 21 22 23 24 25 26 27 28 - 20 Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 20 of 21

1 2 3 4

Order

IT IS ORDERED finding in favor of Defendant MetLife on Plaintiff's claims. IT IS FURTHER ORDERED directing the Clerk to enter judgment in favor of

5 Defendant MetLife and against Plaintiff dismissing Plaintiff's claims. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 21 Case 2:03-cv-01340-SRB Document 82 Filed 05/19/2006 Page 21 of 21

DATED this 19th day of May, 2006.