Free Proposed Findings of Fact - District Court of Arizona - Arizona

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LAW OFFICES MOHR, HACKETT, PEDERSON, BL AKLEY & RANDOLPH, P.C.
2800 NORTH CENTRAL AVENUE, SUITE 1100 PHOENIX, ARIZONA TELEPHONE FACSIMILE 85004-1043 (602) 240-3000 (602) 240-6600

(AZ BAR FIRM NO. 0046600)

Attorneys for Defendant Metropolitan Life Insurance Company

Robert C. Hackett (AZ Bar No. 001588) ([email protected]) Daniel P. Beeks (AZ Bar No. 012628) ([email protected])

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sybol Terrell-Sims, a married woman,

) ) Plaintiff, ) ) v. ) ) American Express Company, (MetLife), ) a New York Corporation, and ) ) Metropolitan Life Insurance Co., a ) Tennessee Company, ) ) Defendant. ) )

No. CV 03-1340 PHX SRB METLIFE'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to this Court's order dated March 24, 2006, Defendant Metropolitan Life Insurance Company ("MetLife") submits the following Proposed Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Plaintiff Sybol Terrell-Sims ("Plaintiff" or "Terrell-Sims") was previously

employed as a Bank Secrecy Act compliance manager with American Express Travel Related Services Company, Inc. ("American Express"). [AdmRec003].1 Plaintiff
"AdmRec___" refers to the separately bates numbered pages comprising the Administrative Record, Exhibit 2001.
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earned $55,445 per year. [AdmRec175]. 2. As an employee of American Express, Plaintiff was eligible for various

employee benefits provided by the American Express Employee Benefit Welfare Plan ("the Plan"), including Family Medical Leave Act ("FMLA") leave, salary continuation (short-term disability) benefits and long-term disability ("LTD") benefits. 3. Plaintiff elected to participate in LTD benefits available under the plan at

the level of 40% of her annual salary. [AdmRec175]. 4. MetLife administered FMLA benefits for American Express, and also

administrated, but did not fund, salary continuation benefits. American Express funded salary continuation benefits out of its own assets. [Ex. 1 at MET-SIM0015]. 5. MetLife administered and funded LTD benefits. [Ex. 1 at

AMEXTS01569]. 6. Salary continuation benefits covered the first 26 weeks of an employee's

disability, and LTD benefits covered any period of continued disability longer than six months. [Ex 1 at Met-Sim0017; Ex. 1 at AMEXTS01504]. 7. The plan documents governing salary continuation benefits expressly

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]. 8. The plan documents governing salary continuation benefits define

"disability" or "disabled" to mean "due to an 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]. 9. as: A disability caused by sickness, disease, injury, pregnancy or related mental impairment for which you are under the care of a doctor. The plan documents governing LTD benefits defined "Total Disability"

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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]. 10. The plan documents for the American Express LTD plan provides that

MetLife is the designated "Claims Fiduciary" for LTD benefits. [Ex. 1 at AMEXST01569]. The LTD plan documents further provide that as the "Claims Fiduciary," MetLife has "discretionary authority . . . 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 AMEXST01564]. This section goes on to state that "Claims fiduciaries decisions are conclusive and binding on all parties and are not subject to further review." [Ex. 1 at AMEXST01564]. 11. The plan documents governing LTD benefits provide that benefits for

mental illness are limited to 24 months unless the plaintiff is being treated on an inpatient basis. [Ex. 1 at AMEXTS01506]. 12. Plaintiff was involved in a motor vehicle accident on November 16, 2001.

[Pretrial Statement at 3:6 ­ 3:9]. 13. On December 24, 2001, Plaintiff faxed a certification to MetLife's FMLA

administrator seeking approval for FMLA leave. [AdmRec421]. Plaintiff enclosed a certificate from her primary care physician, Will Jeffers of the Family Practice Group at Luke Air Force Base ("Dr. Jeffers"), indicating that Plaintiff was having severe muscle spasms in her upper back and neck muscles as a result of the motor vehicle accident. [AdmRec423 ­ 424]. Dr. Jeffers indicated that Plaintiff remained able to work in her
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job, but that she would need to attend physical therapy twice per week for four to six weeks. [AdmRec423 at ¶ 6a]. 14. Plaintiff consulted with Spooner Physical Therapy ("Spooner") one time

on January 3, 2002. [AdmRec0646 and 649]. Spooner found that Plaintiff had a limited range of motion, and quite a bit of tenderness, and recommended a program of physical therapy to address these problems. [AdmRec646]. On January 7, 2002, MetLife approved intermittent FMLA leave for Plaintiff, so that she could attend physical therapy. [AdmRec0410]. 15. Although MetLife had approved intermittent leave so that Plaintiff could

attend physical therapy, Plaintiff did not return for additional physical therapy with Spooner, and she was discharged from treatment by the physical therapist on January 25, 2002. [AdmRec0648]. 16. On July 8, 2002, Dr. Jeffers again prescribed physical therapy for

Plaintiff. [AdmRec656]. 17. Plaintiff began seeking physical therapy again from Spooner on August 7,

2002. She noted that she continued to suffer from left neck and arm pain, but that she had continued to work. [AdmRec0642]. 18. Plaintiff began receiving physical therapy with Spooner on a twice per

week basis. [AdmRec641 ­ 642]. 19. Spooner re-evaluated Plaintiff on September 12, 2002, and found she had

made good progress in her range of motion and activity level. [AdmRec0654]. They suggested, however, that Plaintiff would benefit from another month of physical therapy. [AdmRec0655]. 20. Plaintiff stopped seeing Spooner in September, 2002, and did not return

again until January, 2003. [AdmRec641; AdmRec194]. 21. In the Fall of 2002, Plaintiff was unhappy working at American Express

because there had been a change in management, which apparently led to a more hostile

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work environment, and a change in her job responsibilities. [AdmRec259]. 22. As a result, in October, 2002, Plaintiff filed a complaint with the EEOC

alleging that she had suffered racial discrimination, sexual discrimination, and had been retaliated against for filing previous EEOC complaints. [Second Amended Complaint, Docket No. 13, at ¶ 12]. 23. On November 11, 2002, Plaintiff contacted MetLife to make a claim for

salary continuation benefits and FMLA leave. [AdmRec01-4]. Plaintiff claimed that she could not work as a result of pain in her neck, left shoulder and back, and because she was seeking physical therapy three times per week. [AdmRec03]. 24. There is no indication in the Administrative Record that Dr. Jeffers,

Spooner, or any other health professional, had recommended that Plaintiff stop working. 25. According to Lisa Ferrell, Plaintiff's supervisor at American Express

("Plaintiff's Supervisor"), Plaintiff's last day of work had been November 6, 2002. [AdmRec005 ­ 006]. 26. On November 12, 2006, MetLife wrote to Plaintiff and requested certain

records supporting her claim for salary continuation benefits. [AdmRec088]. 27. Also on November 12, 2002, Plaintiff began consulting with Traci L.

Paige, D.O., a family practice doctor ("Dr. Paige"). [AdmRec431]. 28. On November 20, 2002, Dr. Paige's nurse practitioner, Danielle Traudt,

FNP ("Nurse Traudt") completed a health care provider certification form in connection with Plaintiff's request for FMLA leave. [AdmRec163 ­ 165]. 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. [AdmRec163]. 29. Plaintiff saw Dr. Paige again on December 3, 2002. [AdmRec429]. Dr.

Paige diagnosed Plaintiff as suffering from depression, fatigue, and anxiety. She also

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noted that Plaintiff was to see Dr. Little, a psychologist, in two weeks. [AdmRec429]. 30. There is no indication in the Administrative Record that Plaintiff ever

followed through and saw Dr. Little. 31. On December 16, 2002, MetLife approved Plaintiff's claim for FMLA

leave effective on November 7, 2002 through December 2, 2002. [AdmRec094]. 32. On December 17, 2002, MetLife wrote to Plaintiff and notified her that

her claim for salary continuation benefits had also been approved for the period covering November 7, 2002 through December 2, 2002. [AdmRec095]. 33. Both of these letters stated that MetLife anticipated that Plaintiff would

have returned to work on December 2, 2002, and requested additional information and documentation within 14 days if her claimed disability continued beyond that date. [AdmRec094 and 095]. 34. 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 had 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 973-324-5812 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 27, 2002 for failure to return from leave. [AdmRec0557]. 35. On December 24, 2002, MetLife's claims representative spoke with

Plaintiff. Plaintiff stated that her attending physician (Dr. Paige) was out of the office

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on vacation, and would not return until January 2, 2003. Plaintiff stated that she would provide documentation from her physician once she returned. [AdmRec06]. 36. On January 2, 2003, Plaintiff began attending physical therapy again with

Spooner. [AdmRec0194]. 37. On January 3, 2003, Plaintiff was seen again by Dr. Paige. Dr. Paige

noted that Plaintiff had been suffering from asthma for approximately two weeks. [AdmRec0430]. Dr. Paige believed that Plaintiff was disabled from asthma, cervical pain, hypertension, depression, anxiety, insomnia, and fatigue. [AdmRec0430]. She also noted that Plaintiff was to see psychiatrist Joan Gallagher, M.D. on January 21, 2003. . [AdmRec0430]. 38. Plaintiff cancelled her appointment with Dr. Gallagher, and never

rescheduled. [AdmRec210]. 39. On January 6, 2003, Plaintiff's Supervisor again wrote to Plaintiff 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, if she had not contacted American Express, 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. [AdmRec130]. 40. On January 10, 2003, the nurse practitioner assisting Dr. Paige faxed a

certification that Plaintiff was disabled to MetLife. [AdmRec0177-183]. This certification indicated that Plaintiff was disabled as a result of muscle spasms , insomnia, depression and anxiety, and stated that Plaintiff was unable to perform her work duties. [AdmRec181]. This fax, however, did not include the note from Plaintiff's January 3, 2003 visit with Dr. Paige. [AdmRec0177-183].

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41.

On January 17, 2003, Plaintiff sent a letter to American Express and to

MetLife claiming she had been wrongfully terminated by American Express. [AdmRec0131-132]. 42. On January 20, 2003, Plaintiff saw David K. Reynolds, D.O., a

neurologist, in connection with her complaints of neck and back pain. Dr. Reynolds noted in relevant part that: Her proximal and distal upper and lower extremities revealed 5-5 strength with the exception of the left upper extremity, but to be quite honest there is so much break-away weakness and poor patient effort that it becomes very hard to estimate strength. The patient will at times provide 5-5 strength and then break-away to practically flaccid with flexion type movements Impression and Plan. 1. Subjective cervical and lumbar irritative radiculopathies. Imaging studies are pending. The patient has Lortab to take now as prescribed. This seems to be adequate for her from what she is telling me. She can follow-up with me after her imaging studies are completed. We can discuss further therapies if indicated. 2. break-away weakness on examination makes interpretation somewhat unreliable. [AdmRec0120-122]. 43. On January 24, 2003, MetLife called and left a message for Plaintiff,

informing her that MetLife was unable extend her claim for salary continuation benefits based on the documentation currently provided, and that MetLife would need office visit notes from all of Plaintiff's treating healthcare providers, including her primary care physician, and any chiropractors and physical therapists she had seen. MetLife also advised Plaintiff that although they could assist her in requesting the medical records, they would need to know the names, phone numbers and fax numbers of all of the treating healthcare providers. MetLife also informed Plaintiff that they would be sending her a letter stating that if this requested information was not received within 10

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days, they would close Plaintiff's claim. [AdmRec07]. 44. Also on January 24, 2003, MetLife placed a call to American Express

regarding the status of Plaintiff's claim. MetLife advised her that they needed to give Plaintiff the benefit of the doubt, as it appeared there were other treating healthcare providers for which MetLife had not yet received information. [AdmRec08]. 45. 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. [AdmRec090]. 46. Certain additional records regarding Plaintiff were received by MetLife on

January 27, 2003. [AdmRec08]. 47. On January 31, 2003, Plaintiff saw Dr. Paige because she was suffering

cephalgia (a headache) and dizziness. [AdmRec199]. Dr. Paige diagnosed Plaintiff as suffering uncontrolled hypertension, and recommended that she be seen in a hospital emergency room. [AdmRec199]. 48. Later on January 31, 2003, Plaintiff was seen in the emergency

department at Banner Desert Samaritan Medical Center. [AdmRec319 ­ 320]. While in the hospital, Plaintiff was tested to determine if she was suffering a transient ischemic attack.2 [AdmRec317 ­ 320]. A CT scan of Plaintiff's brain was taken on January 31, 2003, which disclosed no acute intracranial abnormality. [AdmRec310]. An MRI of the brain was also negative. [AdmRec312]. An MRI of the abdomen disclosed no evidence of renal artery stenosis, but disclosed a potential cyst on Plaintiff's kidney, for which confirmation was requested via renal ultrasound. [AdmRec312 ­ 313]. 49.
2

On February 1, 2003, a carotid Doppler ultrasound was performed at the

A transient ischemic attack is basically a transient stroke. Symptoms can include: numbness or weakness in the face, arm, or leg, especially on one side of the body; confusion or difficulty in talking or understanding speech; trouble seeing in one or both eyes; and difficulty with walking, dizziness, or loss of balance and coordination.
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hospital, which disclosed no evidence of any acute cardiopulmonary disease. [AdmRec315]. An echocardiogram was also negative. [AdmRec321]. 50. While hospitalized, Plaintiff was offered a consultation with a neurologist,

but she declined as she was already scheduled to see Dr. Reynolds again the following week. [AdmRec319]. 51. Plaintiff was discharged from the hospital on February 2, 2003, and

instructed to follow up with Dr. Paige and Dr. Reynolds within the next week. [AdmRec319]. The discharge summary noted that all of the tests performed to determine if Plaintiff had suffered a transient ischemic event had been unremarkable. [AdmRec319]. 52. On February 5, 2003, Plaintiff followed up with her neurologist, Dr.

Reynolds. Dr. Reynolds reviewed an MRI of Plaintiff's cervical and lumbar spine, and found subtle minor annular bulging in the cervical spine, with no disk protrusion, central canal stenosis, or neural foramen stenosis at any level. Dr. Reynolds also found that there was a mild degenerative facet change in plaintiff's lumbar spine, with minor annular bulging at L4-5, but without significant canal or neural foramen stenosis. [AdmRec0213 ­ 214]. 53. 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. [AdmRec09]. 54. 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 Plaintiff's stay in the hospital, and her subsequent follow

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up with Dr. Reynolds, 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 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. [AdmRec011]. 55. On February 19, 2003, the claims manager followed the nurse consultant's

advice, and extended Plaintiff's salary continuation benefits through January 31, 2003. [AdmRec012]. 56. On February 20, 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 prior to February 13, 2003. The 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. [AdmRec096]. 57. On February 21, 2003, MetLife sent a check for $7,015.89 to Plaintiff for

additional salary continuation benefits through January 31, 2003. [AdmRec012]. 58. On March 3, 2003, Plaintiff consulted with Dr. Reynolds regarding her

ongoing complaints of left shoulder pain. [AdmRec222 ­ 223]. Dr. Reynolds reviewed Plaintiff's imaging studies, and commented that "They really do not identify a clearcut etiology for her radicular pain." [AdmRec222]. Dr. Reynolds also decided to refer Plaintiff for a consultation with an orthopedic surgeon "as I have been unable at this point to come up with a clear-cut etiology for all of her pain." [AdmRec223]. 59. Plaintiff did not provide MetLife with the requested additional medical

records supporting her disability by the March 6, 2003 deadline stated in the February

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20, 2003 letter. As a result, on March 20, 2003, MetLife sent Plaintiff a letter stating that it had closed her claim. [AdmRec013; AdmRec091]. MetLife's letter advised Plaintiff that although her claim was closed, Plaintiff had a right to an administrative appeal from this decision. [AdmRec091]. 60. MetLife received additional medical records on April 3, 2003. These

records were marked in the upper right hand corner with code number 030403012324. [AdmRec014; AdmRec120 ­ 122; AdmRec628 - 639]. The records from Plaintiff's hospitalization from January 31, 2003 through February 2, 2003 were not included in this set of records. 61. These records included Dr. Reynolds January 20, 2003 report, stating that

Plaintiff's break-away weakness and lack of effort made interpretation somewhat unreliable. [AdmRec014; AdmRec120 ­ 122]. 62. Also included in the new records received by MetLife was a phone

message dated February 3, 2003 from Plaintiff's to Dr. Paige stating that Plaintiff "plan[ned] to return to work on 3/1/03." [AdmRec631]. 63. 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. [AdmRec015]. 64. 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. [AdmRec015]. 65. On May 12, 2003, MetLife's nurse consultant reviewed Plaintiff's claim,

including the new medical records. [AdmRec016]. The nurse consultant observed that most of the file was simply copies of documents previously provided to MetLife. [AdmRec016]. The nurse consultant reviewed Dr. Reynolds' January 20, 2003 report, and the February 14, 2003 report from Dr. Paige's office. [AdmRec017; AdmRec409].

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The nurse 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 Dr. Reynolds had not been provided. The nurse consultant recommended that the denial be maintained. [AdmRec017]. 66. Also on May 12, 2003, Plaintiff began consulting with Michael A.

Steingart, D.O., an orthopedic specialist for complaints relating to her left shoulder. [AdmRec292 ­ 294]. Dr. Steingart indicated that Plaintiff could work, subject to restrictions regarding overhead activities, and lifting items heavier than 15 pounds. [AdmRec294]. Dr. Steingart observed that "This is a complex case because there is no clear cut etiology for her cervical/lumbar radiculopathy." [AdmRec294 (emphasis added)]. Dr. Steingart recommended that Plaintiff under go a cervical epidural injection. [AdmRec294]. 67. 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. [AdmRec017]. The claim representative then forwarded the recommended denial to MetLife's disability resource specialist for review. [AdmRec017]. 68. On May 19, 2003, Plaintiff had an MRI on her left shoulder, as

recommended by Dr. Steingart. [AdmRec284]. 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. [AdmRec284]. 69. On May 22, 2003, MetLife's disability resource specialist agreed with the

claim representative's recommendation that the termination of benefits should be

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upheld, but requested that the letter to Plaintiff on this decision be revised. [AdmRec018]. 70. Before the termination letter could be revised, MetLife received a letter

dated May 21, 2003 from Plaintiff's attorney appealing the termination of Plaintiff's salary continuation benefits. [AdmRec018; AdmRec134]. 71. In the Appeal letter, Plaintiff's attorney requested an extension of the time

within which to file the Appeal. [AdmRec134]. Plaintiff's attorney also requested a copy of MetLife's entire claim file. [AdmRec134]. Plaintiff's attorney did not enclose any additional records or information with the appeal letter. [AdmRec134]. 72. On May 29, 2003, Plaintiff underwent the cervical epidural injection

prescribed by Dr. Steingart. [AdmRec289]. Plaintiff reported relief of her pain, and was ordered to follow up with Dr. Steingart again in one month. [AdmRec289]. 73. Also on May 29, 2003, Plaintiff finally began consulting with a

psychologist, Zelda Hittel, Ph.D. ("Dr. Hittel"). [AdmRec260 ­ 262]. Plaintiff saw Dr. Hittel only twice: on May 29, 2003, and again on June 5, 2002. [AdmRec263]. 74. On June 2, 2003, Plaintiff followed up with her neurologist, Dr. Reynolds,

again. [AdmRec282 ­ 283]. Plaintiff reported that since her epidural injection with Dr. Steingart, she had experienced significant decreases in her level of pain, that the level of pain was tolerable, and that she continued to improve as the days went on. [AdmRec282]. 75. 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. [AdmRec87]. 76. During the latter half of June, 2003, MetLife received additional medical

records relating to Plaintiff. [AdmRec19]. 77. On June 30, 2003, MetLife produced a copy of Plaintiff's entire claim file

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to Plaintiff's attorney. [AdmRec20; AdmRec162]. 78. In the Summer of 2003, Plaintiff also submitted a claim for Social

Security Disability benefits. On July 25, 2003, Plaintiff's psychologist, Dr. Hittel, submitted a report to the Disability Determination Service of the Arizona Department of Economic Security in connection with Plaintiff's claim. [AdmRec258 ­ 259]. 79. 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. [AdmRec021 - 022]. 80. After reviewing the available documents, MetLife decided that there was

still not enough information provided to make an informed decision as to whether to extend Plaintiff's salary continuation benefits beyond January 31, 2003. [AdmRec22]. MetLife determined that it needed to obtain additional medical records from a number of Plaintiff's healthcare providers, including records from Plaintiff's psychiatrists, neurologists, orthopedic surgeons, and cardiologists, as well as all certain laboratory and test results. [AdmRec22]. 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. [AdmRec22]. Therefore, 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 from Plaintiff's attorney to provide the additional medical records and vocational information within a specified time. [AdmRec22]. 81. On August 11, 2003, the manager 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. [AdmRec23]. 82. 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

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following healthcare providers who the available records indicated had treated Plaintiff: Dr. Gallagher (psychiatrist);3 Zelda Hittel (psychiatrist); David Reynolds (neurologist); Michael Steingart (orthopedic); Dr. Barry (cardiologist); and Plaintiff's attending physical therapist. [AdmRec491]. 83. At about this same time, the Social Security Administration was also

reviewing Plaintiff's claim for disability benefits. On August 13, 2003, the doctor reviewing Plaintiff's claim on behalf of Social Security found that Plaintiff's complaints were only partially credible, and that she should be capable of at least sedentary activity. [AdmRec469]. Psychologist Francis A. Enos, Ph.D. reviewed Plaintiff's file on August 13, 2003 and found that Plaintiff did not have any severe medical impairments. [AdmRec486]. Plaintiff later appealed this denial of Social Security Disability benefits. 84. On September 10, 2003, Plaintiff consulted with Stanford Roth, M.D. a

rheumatologist. [AdmRec61-62]. Dr. Roth observed that Plaintiff exhibited eighteen of the classical fibromyalgia tender points.4 He prescribed Oxycontin for her condition. [AdmRec61-62]. 85. 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. [AdmRec209]. Dr. Roth's records were not included in the documents that MetLife received from Plaintiff's attorney. [AdmRec209]. 86.
3

Before MetLife could review the new records, and decide the appeal,

As noted above, Plaintiff had cancelled her appointment with Dr. Gallagher and never rescheduled it. [AdmRec210]. 4 Fibromyalgia is a chronic disorder. See National Institutional of Health, the Neuroscience and Endocrinology of Fibromyalgia (1996) reprinted online at www.niams.nih.gov/ne/reports/sci_rk/1996/fibrosho.htm. Fibromyalgia is generally characterized by widespread muscular skeletal pain, fatigue, and multiple tender points. As Judge Posner has observed, one of the principal symptoms of fibromyalgia is that the patient has multiple tender spots that when pressed firmly, causes the patient to flinch. See Sarchet v. Chater, 78 F.3d, 305, 306-07 (7th Circ. 1996). There are eighteen fixed locations on the body where such tender spots may occur. The patient must at least have eleven of them to be diagnosed as having fibromyalgia. Id. Document 81 16 Filed 04/24/2006 Page 16 of 31

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Plaintiff filed litigation against both American Express and MetLife. MetLife received the Complaint on September 30, 2003. [AdmRec023]. 87. After the litigation was filed, the parties filed a Joint Case Management

Plan on November 25, 2003. [Docket number 10]. In the Joint Case Management Plan, MetLife contended that because Plaintiff had filed suit before her Appeal was finally decided, Plaintiff had failed to exhaust her administrative appeals, and was therefore barred from recovering under ERISA. [Joint Case Management Plan at 19:23-27]. See also Allocco v. Metropolitan Life Ins. Co., 256 F. Supp. 2d. 1023, 1032 (D. Ariz. 2003) (dismissing LTD claims by American Express employee who failed to exhaust administrative appeals prior to filing litigation). 88. In the December of 2003, Plaintiff's petition to reconsider the denial of

her application for Social Security disability benefits was granted. [AdmRec360; AdmRec426 - 427]. 89. Social Security found that Plaintiff's disability was from the result of a

major depressive disorder. [AdmRec368-379; 380-385]. 90. The Social Security Administration awarded Plaintiff monthly benefits of

$972.00 per month, retroactive to November 2, 2002. [Adm Rec426]. 91. The plan documents governing LTD benefits under the American Express

plan both provide that any amounts owed by the plan are reduced by any disability benefits received from Social Security. [Exhibit 1 at AMEXTS01504]. 92. In March of 2005, 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. [Docket number 52]. 93. After entering into the stipulation, Plaintiff submitted numerous additional

documents to MetLife supporting her claim of disability. The documents provided to MetLife were all marked with the bates stamps beginning "STS" which designated the

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records had been received from Sybol Terrell-Sims. For example, the Social Security Administration records produced by Plaintiff were marked STS001 ­ STS119. [AdmRec359 ­ 489]. Similarly, records from Banner Desert Samaritan Medical Center were marked STS2001 ­ STS2030. [AdmRec329 ­ 359]. 94. In June, 2005, Plaintiff stipulated to dismiss all of her claims against

American Express with prejudice. [Docket No. 58]. 95. On July 22, 2005, MetLife requested a peer file review of Plaintiff's file

by a psychiatrist. [AdmRec66-68], by an internal medicine doctor [AdmRec69-71], and by pain medicine doctor [AdmRec72-74]. 96. MetLife sent these requests to Elite Physicians, Ltd., which is a subsidiary

of Network Medical Review Company, an accredited external review organization which specializes in providing based medical solutions for the insurance, managed care, legal, and medical industries. [See www.NMRCO.com]. 97. Elite Physicians had Plaintiff's file 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) [AdmRec039 ­ 045]; 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) [AdmRec046 ­ 051]; and c) Marcus J. Goldman, M.D. (board certified by the American Board of Psychiatry and Neurology) [AdmRec052 ­ 059]. 98. Dr. Marion issued a five page report on July 29, 2005. [AdmRec039 ­

045]. Dr. Marion extensively reviewed Plaintiff's medical records provided to MetLife.

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Relevant findings from Dr. Marrion'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 the 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]. 99. Dr. Marrion completed a two page "Medical Consultant Review ­

Estimation of Physical Capacities" form for MetLife. Dr. Marrion noted no restrictions except those relating to her use of muscle relaxants and narcotic opioid. [AdmRec044 ­ 045]. 100. Dr. Sonne also issued a four page report on July 29, 2005. [AdmRec046 -

49]. After briefly discussing Plaintiff's relevant medical records, 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. ***

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The medical information does not support any functional limitations. [AdmRec048 - 049]. 101. Dr. Sonne also completed a "Medical Consultant Review-Estimation of

Physical Capacities" form for MetLife. He also noted no restrictions. [AdmRec050 ­ 051]. 102. Dr. Goldman similarly issued a six page report and July 29, 2005.

[AdmRec052 - 057]. Dr. Goldman extensively reviewed Plaintiff's medical records. 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 note worthy 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 examinations that were available for review were few and far between. In deed, for the time period in question, there were only three mental health progress notes. Two of them, from Dr. Hittel, were extremely cursory and poorly comprehensive; they were without any 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 October 18, 2003 was comprehensive; however, a review of this information reveals data that is almost totally subjective in nature. The mental status examination was notable for depression and rather minor or mild cognizant deficits. There was no 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 professions for an entire year is totally 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
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5

Alabama would be further evidence of lack of acuity or severity. Individuals suffering from an acute and mental disorders or psychiatric illnesses typically do not travel to other states for visits. In addition, notes from other medical specialists do not note any other particular psychiatric symptomology. She is described in being 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 notice by at least one of her non-psychiatric providers. There are no significant objectives or corroborative data to substantiate her subjective complaints." [AdmRec56]. 103. Dr. Goldman completed a "Mental Residual Functional Capacity

Assessment" form for MetLife. [AdmRec48-49]. In every category, Dr. Goldman found "no evidence of limitation in this category." [AdmRec48-49]. 104. After reviewing the entire claim file, including the reports of Dr. Marrion,

Dr. Sonne, and Dr. Goldman, MetLife issued its decision on Plaintiff's appeal on August 2, 2005. [AdmRec25-30].5 105. After extensively summarizing Plaintiff's medical history, and the reports

from three independent physician consultants who provided reports to MetLife, procedure analyst, Sharon Muldrow concluded that the information submitted for file review lacked supportive evidence of a severity of a impairment due to injury or sickness that supported [Plaintiff's] inability to perform each of the material duties of [her] sedentary occupation. [AdmRec29-30]. Therefore, MetLife found that the determination to terminate Plaintiff's salary continuation benefits after January 31, 2003 was appropriate. [AdmRec029 ­ 030]. CONCLUSIONS OF LAW 106. The Court has subject matter jurisdiction of this dispute based on diversity

Apparently forgetting that Plaintiff had hired new counsel, the decision on the appeal was mailed to her first attorney. Document 81 21 Filed 04/24/2006 Page 21 of 31

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of citizenship under 28 U.S.C. §1132, and based on federal questions arising under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§10011461 ("ERISA"). . Plaintiff Has No Claims Against MetLife Except Claims for LTD Benefits 107. 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. [Ex. 1 at MET-SIM0015]. All claims for salary continuation benefits were therefore resolved when Plaintiff dismissed all of her claims against American Express with prejudice in June, 2005. [Docket No. 58]. 108. 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. [Ex. 1 at AMEXTS01550]. Because MetLife found that Plaintiff was not totally disabled for the entire six month waiting period, she was not entitled to LTD benefits. 109. 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 number 10]. In any event, as with salary continuation benefits, American Express, and not MetLife, would have been liable for any claims arising from these stock options. Because Plaintiff released all of her claims against American Express, no claims relating to the claimed stock options survived. 110. 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

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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 through January 31, 2003. Consequently, MetLife could not have violated the FMLA by failing to approve requested leave. The Court Should Apply the "Abuse of Discretion" Standard of Review 111. The planned documents unambiguously grant MetLife discretion to

determine eligibility for benefits. [Ex. 1 at AMEXST01564]. 112. 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). 113. The Ninth Circuit has held that heightened review might be appropriate if

a potential conflict of interest arises because the same insurance company administers claims and insures benefits, and the insurance company 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 short term program, and funds long term program does not operate under an apparent conflict of interest in handling of short term benefits). 114. 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

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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 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. 115. Plaintiff has not carried her burden of proof in showing MetLife's self

interest caused its fiduciary duties to Plaintiff. 116. The abuse of discretion standard of review is applicable in this case.

The Court Should Not Consider Evidence Outside the Administrative Record 117. 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 AdmRec 0656. 118. At trial, the parties also stipulated that Plaintiff's exhibit 1, comprising

relevant pages from the summary plan descriptions for portions of the American Express employee benefits plans, marked MET-SIM0015 to MET-Sim0022, and AMEXTS01501 ­ AMEXTS01586, was also admissible. 119. At trial, the Court provided Plaintiff with the opportunity to offer into

evidence any other documents she believed were relevant to the dispute. Plaintiff offered Plaintiffs exhibits 2 ­ 6 ("the Disputed Exhibits"). The Disputed Exhibits include the following: 2. Documents related to Plaintiff's stock options (marked with handwritten numbers 137 to 182); 3. Plaintiff's medical records from Banner Desert Medical Center relating to Plaintiff's hospitalization dated April 28, 2005 through April 30, 2005 (marked with handwritten numbers 37 to 51, and 139); 4. Plaintiff's medical records from Douglas Schwartz, M.D. relating to an endoscopy and a colonoscopy performed on Plaintiff on May 11,
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2005 (marked with handwritten numbers 134, and 27 to 33); 5. Medication information (including some pages with handwritten numbers 58 ­ 62, 81 ­ 128); and 6.. Time data information handwritten numbers 185 ­ 243). 120. (marked with

MetLife objected to the admission of each of the Disputed Exhibits. The

Court took under advisement its ruling on whether to admit the Disputed Exhibits. 121. On December 5, 2005, MetLife filed a motion in limine requesting that

the Court not admit any evidence beyond the administrative record. 122. 123. 124. Plaintiff never responded to the motion. MetLife raised these issues again in the joint proposed pretrial order. MetLife raised these issues again in its Emergency Motion to Expedite

Ruling on Motion in Limine filed on March 10, 2006. 125. MetLife consistently objected to all of Plaintiff's attempts to introduce

evidence outside the administrative record at the trial on March 24, 2006. 126. The Ninth Circuit has "clearly established that the abuse of discretion

standard permits the district court to review only the evidence presented to the plan trustees." Banuelos v. Construction Laborers' Trust Fund for So. Cal., 382 F.3d 897, 904 (9th Cir. 2004). This is because "Permitting a district court to examine evidence outside the administrative record would open the door to the anomalous conclusion that a plan administrator abused its discretion by failing to consider evidence not before it." Taft v. Equitable Life Assurance Soc'y, 9 F.3d 1469, 1473 (9th Cir. 1994). 127. There is no evidence indicating that Plaintiff, her health care providers, or

either of her attorneys ever provided MetLife with copies of the documents comprising Exhibit 2, 3, 5 and 6. As such, those documents cannot be considered to be part of the administrative record, and will not be admitted into evidence. 128. At trial, Plaintiff contended that copies of the documents comprising

Exhibit 4 had been sent by certified mail to MetLife's attorney, and included certified

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mail receipts which purported to demonstrate that such records had been sent to MetLife's attorney. 129. This issue was not raised in Plaintiff's portion of the joint pretrial

statement, and unduly prejudiced MetLife because MetLife was not in a position to disprove this allegation at trial. 130. 131. As a result, Plaintiff's Exhibit 4 will not be admitted into evidence. Even if the records contained in Plaintiff's Exhibit 4 were considered to

be part of the administrative record, it would not change the outcome of this litigation. The documents comprising Exhibit 4 relate to an endoscopy and colonoscopy performed on Plaintiff in May, 2005. These procedures were performed over two years after the relevant time period comprising the six month elimination period beginning in November, 2002 and ending in April, 2003. These procedures disclosed mild duodenitis, mild gastritis, and small internal hemorrhoids. There is no evidence that Plaintiff suffered from these conditions in early 2003, or that these conditions (separately or considered in conjunction with Plaintiff's other health and mental issues) would have adversely affected Plaintiff's ability to perform her occupational duties. The Administrative Record Does Not Demonstrate That MetLife Abused Its Discretion in Denying LTD Benefits 132. An ERISA administrator such as MetLife abuses its discretion "only if it

(1) renders a decision without explanation, (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of fact." Boyd v. Bell, 410 F.3d 1173, 1178 (9th Cir. 2005); Bendixen v. Standard Ins. Co., 185 F.3d 939, 944 (9th Cir. 1999). 133. MetLife did not render its decision without an explanation to Plaintiff.

Rather, MetLife provided Plaintiff with a six page letter explaining the basis for its decision. [AdmRec025 ­ 030]. MetLife based this decision on the opinions of three board certified specialists who had reviewed Plaintiff's file.

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134.

There is no evidence in the record to indicate that MetLife interpreted any

provision of the plan in a way that conflicted with the plan's plain language. 135. MetLife did not rely on any clearly erroneous findings of fact in making

its determination to terminate Plaintiff's salary continuation benefits. 136. To be clearly erroneous, a finding of fact must strike the court as "more

than just maybe or probably wrong"; it must strike the court "as wrong with the force of a five-week-old, unrefrigerated dead fish." Hayes v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002). 137. MetLife's factual determination that Plaintiff was not disabled after

having board certified specialists in all of the potentially relevant medical fields review Plaintiff's documentation. All three of these doctors agreed that the documentation did not support a finding that Plaintiff's conditions were so severe as to preclude her from performing her occupational duties. Many of Plaintiff's own physicians had found that there was no clear cut etiology for Plaintiff's complaints of pain. In such a situation, MetLife did not abuse its discretion in determining that Plaintiff did not qualify for LTD benefits. Parkman v. Prudential Ins. Co. of Am., 439 F.3d 767, 772-73 (8th Cir. 2006). 138. MetLife acted reasonably in crediting the opinions of its independent

physician consultants over the conclusory, and often tentative opinions expressed by Plaintiff's treating physicians. "The mere fact that MetLife favored the opinions of the independent reviewers is not proof of arbitrary or capricious conduct." Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 602 (5th Cir. 1994); Sandoval v. AETNA Life and Casualty Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992). See also, Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 214 (1st Cir. 2004) (a nonexamining physician's review of a claimant's file is reliable medical evidence supporting a denial of benefits); Voight v. Metropolitan Life Ins. Co., 28 F. Supp. 2d 569, 580 (S.D. Cal. 1998). 139. Dr. Roth diagnosed Plaintiff as suffering from fibromyalgia. As the Ninth

Circuit has explained,

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fibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The 'consensus construct of fibromyalgia identifies the syndrome as associated with generalized pain and multiple painful regions. Sleep disturbance, fatigue, and stiffness are the central symptoms, though not all are present in all patients. The only symptom that discriminates between it and other syndromes and diseases is multiple tender spots, which we have said were eighteen fixed locations on the body that when pressed firmly cause the patient to flinch. The diagnosis is now based on patient reports of a history of pain in five parts of the body, and patient reports of pain when at least 11 of 18 points cause pain when palpated by the examiner's thumb. Although the Mayo Clinic states that the syndrome is neither progressive nor crippling, the symptoms can be worse at some times than others. Objective tests are administered to rule out other diseases, but do not establish the presence or absence of fibromyalgia. Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2003). 140. It is difficult to determine the severity of a plaintiff's claimed disability

based on fibromyalgia because of the unavailability of objective clinical tests. "Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether [the claimant] is one of the minority." Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1067 (9th Cir. 1999), quoting, Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). 141. It is not unreasonable for a claim fiduciary such as MetLife to deny a

disability claim based on fibromyalgia because the claimant has not provided objective evidence that the claimant's condition is so severe as to be disabling. Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006). 142. The Ninth Circuit considered a very similar case involving claims of

disability based on fibromyalgia and depression in Jordan v. Northrop Grumman Corp.

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Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2003). In Jordan, the Ninth Circuit held that a claim fiduciary did not abuse its discretion in denying such a claim where the treating physicians' opinions were conclusory, and the independent physician consultant consulted by the claim fiduciary had issued more thorough and thoughtful opinions concluding that Plaintiff had not demonstrated she was disabled. Id.at 879-80. 143. A claim fiduciary also does not abuse its discretion if it denies a claim

based on alleged depression where the plaintiff was first diagnosed with depression several months after his or her job was terminated, and the doctors who diagnosed it had poorly documented and vague records. Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1274-75 (10th Cir. 2002). Consequently, MetLife did not abuse its discretion in determining that Plaintiff was not disabled as a result of depression. 144. Even if Plaintiff was disabled as a result of depression, the plan also

required that Plaintiff be under the care of a doctor for the disabling mental impairment. [Ex. 1 at AMEXTS01566]. Plaintiff stopped treating with Dr. Hittel on June 5, 2003. [AdmRec263]. Plaintiff stopped treating with Dr. Hittel because she was afraid it would adversely affect her claims against American Express. [AdmRec381]. The Social Security Administration's Decision to Award Disability Benefits to Plaintiff was not Binding on MetLife 145. As an ERISA plan administrator, MetLife was not bound by the Social

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

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146.

ERISA plan fiduciary such as MetLife is not bound by a social security

determination that a plan participate is disabled because of the differences between Social Security and ERISA disability plans. Although the Social Security Administration is required to give deference to a Plaintiff's physician's opinions regarding disability, an ERISA fiduciary is not under a similar obligation. See Black-nDecker Disability Plan v. Nord, 538 U.S. 822 (2003). See also Couture v. UNUM Provident Corp., 315 F. Supp. 2d 418, 420 (S.D.N.Y. 2004) ("The SSA is bound by its own rules to give substantial weight to the opinion of treating physicians, but the administrator of a private Plan is not so bound, and is permitted to give such weight as it deems appropriate to the opinion of a treating physician, as long as that opinion is considered."). MetLife was not Required to Request that Plaintiff Submit to an Independent Medical Examination 147. Plaintiff has suggested that MetLife abused its discretion because it did

not require Plaintiff to submit to an independent medical examination. 148. There is no evidence in the administrative record that Plaintiff ever

requested that MetLife have Plaintiff examined by an independent physician. 149. ERISA does not require that a Plan fiduciary request a plaintiff to submit

an independent medical examination before determining disability based only on a consulting physician's review of the plaintiff's file. See Jordan v. Northrup Gruman Corp., 63 F. Supp. 2d 1145, 1158 (C.D. Cal. 1990); Gannon v. MetLife, 360 F.3d 211, 214 (1st Cir. 2004). Attorneys' Fees and Costs 150. MetLife is entitled to recovery its attorneys' fees from Plaintiff pursuant

to 29 U.S.C. §1132(g)(1). 151. MetLife is entitled to recover its costs from Plaintiff.

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RESPECTIVELY Submitted April 24, 2006. MOHR, HACKETT, PEDERSON, BLAKLEY & RANDOLPH, P.C. By /s/ Daniel P. Beeks Robert C. Hackett Daniel P. Beeks Suite 1100 2800 North Central Avenue Phoenix, Arizona 85004-1043 Attorneys for Defendant Metropolitan Life Insurance Company COPIES of the foregoing mailed April 24, 2006 to: The Honorable Susan R. Bolton United States District Court of Arizona 401 West Washington, SPC 50 Phoenix, AZ 85003-0001 And a Copy Mailed To: Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

/s/ Daniel P. Beeks

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