Burgio v. The Prudential Insurance Company of America,, No. 2:2006cv06793 - Document 86 (E.D.N.Y. 2011)
Court Description: MEMORANDUM AND ORDER granting 59 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. For the foregoing reasons, Plaintiff's summary judgment motion is DENIED, and Prudential's motion is GRANTED. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/26/11. C/ECF (Valle, Christine)
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Burgio v. The Prudential Insurance Company of America, Doc. 86 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X FRANK BURGIO, Plaintiff, MEMORANDUM & ORDER 06-CV-6793(JS)(AKT) B against B THE PRUDENTIAL INSURANCE CO. of AMERICA, Defendant. -------------------------------------X APPEARANCES: For Plaintiff: Jason A. Newfield, Esq. Frankel & Newfield P.C. 585 Stewart Avenue, Suite 301 Garden City, NY 11530 For Defendant: William Joseph Payne, Esq. Stevens & Lee, P.C. 620 Freedom Business Center, Suite 200, P.O. Box 62330 King of Prussia, PA 19406 SEYBERT, District Judge: Plaintiff Frank Burgio (“Plaintiff”) claims that Defendant Prudential Insurance Company of America (“Prudential”) improperly terminated his long-term disability benefits. Plaintiff sued Prudential under the Employee Retirement Income Security Act (“ERISA”), and both parties have cross-moved for summary judgment. For the following reasons, Plaintiff’s motion is DENIED and Prudential’s motion is GRANTED. BACKGROUND Until representative, 1993, or Plaintiff “District was Agent,” a Prudential whose duties sales included Dockets.Justia.com selling insurance policyholders. policies and (Administrative servicing Record, Prudential Prudential (hereinafter “R.”) at PRU1567-68, Job Description.) Ex. A According to the District Agent job description, “[i]n order to carry out the essential functions of the job,” the employee “[m]ust be capable of providing service to policyholders at their homes on demand. This will include traveling to and into homes for such purposes . . . .” (Id. at PRU1568.) Plaintiff stopped working on May 3, 1993 due to “an unstable left knee.” Claim Form.) payments, (R. (R. at PRU0279-80, Disability Benefits Plaintiff at qualified PRU285-86, for Notice of short-term Employee disability Disability, Duration of Benefits), and he was later approved for long-term disability (“LTD”) under Prudential’s Welfare Benefits Plan (the “Plan”) in May 1994 (R. at PRU1384, Prudential May 18, 1994 Approval Ltr. to Plaintiff). Under the Plan, Prudential employees who exhaust their short-term disability payments and “are totally pertaining to disabled [their] eligible for LTD. from performing occupation as a any and District (R. at PRU1230, Plan Documents.) every Agent” duty are Plaintiff’s LTD was based on an osteoarthritic condition in his left knee that caused him “difficulty walking, driving a car.” 2 (R. at PRU0197, Disability Claim.) There is no question that Plaintiff has had numerous surgeries and attempts at physical therapy over the years. (See, e.g., R. at PRU1295, Prudential Feb. 5, 2002 Ltr. to Dr. Adler.) To maintain his LTD benefits, Plaintiff was required periodically to submit medical evidence of his total disability, including by activities. completing questionnaires describing his daily In 2001, Plaintiff completed one such questionnaire and indicated that he attends sporting activities “with help or assistance” and that he rides in a car several times daily. (R. at PRU0044, June 25, 2001 Daily Activity Questionnaire.) In January 2003, Plaintiff indicated that he drives “usually daily” but that long car trips “are a problem.” (R. at PRU0299, January 13, 2003 Daily Activity Questionnaire.) Prudential occasional medical also required exams. examined by Dr. Steven Adler. In Plaintiff February 2002, to submit Plaintiff Dr. Adler concluded that: The claimant should be able to perform his basic activities of daily living. Limitations would include excessive walking, excessive stair walking, and avoiding assuming any one posture or position for long periods of time. The question was asked whether the claimant would be harmed if he returned to his own occupation. It is likely there would be no permanent changes in the claimant’s musculoskeletal integrity 3 to was but pain would be a significant factor in his probable inability to return to work. He would be best suited for more sedentary work. (R. at PRU0853, Adler Report.) Prudential tabs on also Plaintiff’s used medical private investigators condition. In to December keep 2001, investigators researched Plaintiff and concluded that although his lifestyle at the time was “fairly” or “moderately” active, surveillance might be useful in the warmer months when he might be more active. until then. File.) They recommended tabling their investigation R. at PRU1367-68, PRU1387, Plan Committee (See In May investigators and June videotaped of 2003, Plaintiff a different walking without group a driving, and participating in little league practice. of cane, On this video, Plaintiff is seen carrying a large equipment bag, walking without assistance, and pitching Prudential Exs. H and I.) to little leaguers. (See For most of the two-hour practice, Plaintiff is walking and standing without assistance, but he occasionally appears to be resting his weight on a chain link fence during Throughout the the half-innings surveillance when video, his team Plaintiff is is at bat. occasionally observed with a slight limp. In October 2003, after 4 it had received the surveillance video, Prudential hired Dr. Craig Rosenberg conduct an independent medical review of Plaintiff’s case. to Dr. Rosenberg examined Plaintiff and reviewed his medical file, and in an October 14, 2003 report (the “Initial Rosenberg Report”), he concluded that Plaintiff was disabled. Specifically, Dr. Rosenberg explained: [Plaintiff’s] limitations and restrictions include occasional walking, occasional standing, no crouching, occasional stair climbing, occasional driving (with an automatic transmission) and lifting is limited to no more than 20 lbs. on occasion. He has no limitations with sitting and he is capable of working an 8-hour workday. (R. at PRU0358-59, Initial Rosenberg Report.) also noted that Plaintiff told him that the Dr. Rosenberg District Agent position requires “constant travel by foot and/or by car” and that Plaintiff “denies participating in any of his children’s organized sporting activities” but states occasionally able to play catch with his son.” When Prudential it wrote received to Dr. the Initial Rosenberg that he “is (Id. at PRU350.) Rosenberg thanking him Report, for his evaluation but noting that “in your report, you do not indicate that you have reviewed the surveillance report or DVD we provided along with [Plaintiff’s] medical records, which showed [Plaintiff] being physically active and contradicts his stated 5 activities.” (R. at PRU1306, Prudential Nov. 10, 2003 Ltr. to Dr. Rosenberg.) The letter describes the surveillance videos and clarifies a District Agent’s official duties: “Please be advised that [Plaintiff’s] job is classified as light duty and requires occasional walking, occasional standing, occasional sitting, and he would not have to lift any more than 10 pounds, which is the approximate weight of the lap top computer he would need to use.” (Id.) The letter concluded by asking Dr. Rosenberg to review the surveillance and provide an addendum report. (Id.) Dr. Rosenberg submitted an addendum report (the “Addendum Rosenberg Report”) stating that he had observed the video of Plaintiff pitching during little league practice. Dr. Rosenberg and said that he had observed Plaintiff “lifting carrying a large equipment bag and standing in an unrestricted fashion. He remained standing throughout the video. He was not wearing any supportive devices and he did not use an assistive device during Rosenberg the Report.) surveillance.” Dr. Rosenberg (R. at explained PRU0676, that during physical examination of Plaintiff, [Plaintiff] had told me that he was unable to participate in any of his children’s organized sporting activities and that he only occasionally was able to play catch 6 Addendum his with his son as a result of his disabilities. This is clearly contradicted by the surveillance report and video. In addition, [Plaintiff] came to the examination ambulating with a straight cane and he advised me that he requires a straight cane for ambulatory activities. Again, this is contradicted by the surveillance information. (Id. at PRU0676-77.) Dr. Rosenberg continued: [Plaintiff] described his job as an agent as requiring constant travel by either car or by foot. [Plaintiff’s] job description reveals that it is classified as light duty requiring only occasional walking, occasional standing, occasional sitting, and he would not be required to lift any more than 10 pounds. It is my opinion that [Plaintiff] is capable of performing his job duties as an agent for Prudential Financial. To clarify my report dated October 14, 2003, it was not my stated opinion that [Plaintiff] was totally disabled from performing his former job as an agent. I listed his restrictions as occasional walking, occasional standing, no crouching, occasional stair climbing, occasional driving (with an automatic transmission) and lifting limited of no more than 20 pounds on occasion with no limitations of sitting. In addition, I stated that he was capable of working an eight-hour workday. These restrictions match your description of [Plaintiff’s] job classified as light duty requiring occasional walking, occasional standing, occasional sitting, and no lifting more than 10 pounds. (Id. at PRU0677.) Prudential terminated 7 Plaintiff’s LTD benefits on November 20, 2003, citing, among other things, Dr. Rosenberg’s conclusions and Prudential Nov. the 20, surveillance 2003 Ltr. video. to (R. at Plaintiff.) PRU1265-66, Prudential explained that a review of Plaintiff’s records “revealed that the frequency and intensity of your treatment did not support a totally disabling condition.” (Id.) Plaintiff appealed Prudential’s decision four times, and Prudential’s decision was upheld in each instance, including twice after additional medical reviews. For Plaintiff’s first appeal, Prudential hired Dr. Mark Kaplan to review Plaintiff’s administrative file, which included his medical records and the surveillance video. In an April 14, 2004 report, Dr. Kaplan observed that the surveillance video showed that Plaintiff “has minor gait abnormalities, recreational activities.” but is able to participate in (R. at PRU0339, Kaplan Report.) He concluded that Plaintiff, as evidenced by the video, is able to stand and walk to a “significant degree” and that the activity limitations Dr. Rosenberg recommended for Plaintiff appeared to “somewhat underestimate [Plaintiff’s] capability.” (Id.) “As demonstrated by the surveillance video, [Plaintiff] appears to have a walking and standing capability somewhat in excess of that given by Dr. Rosenberg.” 8 (Id.) Prudential denied Plaintiff’s first appeal on May 5, 2004. (R. at PRU0980, Prudential May 5, 2004 Ltr. to Plaintiff.) Plaintiff examined medical appealed evidence again, that and this Plaintiff time Prudential submitted and another doctor, Dr. Patrick Foye, review Plaintiff’s file. had (See R. at PRU1270, Prudential May 27, 2005 Ltr. to Plaintiff.) Dr. Foye reviewed Plaintiff’s records and concluded that Plaintiff “should indeed be capable of performing his regular occupation on a full-time basis.” (R. at PRU0600, Foye Report.) Among the evidence that Plaintiff submitted for this review were reports from Drs. Gerard Varlotta and Thomas Erricho. Prudential May 27, 2005 Ltr. to Plaintiff.) (R. at PRU1270, Dr. Varlotta opined among other things, that Plaintiff could not tolerate an eighthour workday as an insurance representative. Varlotta Report.) was worsening. denied (R. at PRU0963, Dr. Errico opined that Plaintiff’s condition (R. at PRU0961, Errico Report.) Plaintiff’s second appeal on May 27, Prudential 2005. (R. at PRU1270, Prudential May 27, 2005 Ltr. to Plaintiff.) Plaintiff appealed a third time, but he did not include any additional information in support of his request and the appeal Prudential was denied on July 11, 2005 July 11, Ltr. 9 to 2005. (R. Plaintiff.) at PRU0984, Shortly thereafter, this Plaintiff time to “Committee”). the commenced Plan’s his fourth and Administrative final appeal, Committee (the Plaintiff did not submit any additional material for this review, either, but the Committee was given extensive documentation concerning Plaintiff’s case (see Committee File, PRU1367-499), Plaintiff’s Prudential including behalf Jan. at 4, all of earlier 2006 the stages Ltr. to evidence of the submitted proceeding Plaintiff, on (see PRU1274). The Committee denied Plaintiff’s final appeal on January 4, 2006, concluding that although Plaintiff “may continue to experience limitations due to [his] condition, [he definition of Total Disability . . . .” does] not meet the (Prudential Jan. 4, 2006 Ltr. to Plaintiff, PRU1274.) DISCUSSION As will be discussed, Plaintiff cannot overcome the deference to which Prudential’s decision to terminate Plaintiff’s LTD benefits is entitled. I. Standard of Review Where administrator Court with reviews discretion. an the ERISA benefits discretion to administrator’s plan provides determine decision the plan eligibility, for an abuse the of McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 10 130 (2d Cir. 2008). Here, the Plan vested Prudential with discretion to determine Plaintiff’s eligibility for LTD benefits (see R. at discretion decision PRU1234, Plan standard, unless it the was Documents), Court made may and not “without under an disturb reason, abuse of Prudential’s unsupported by substantial evidence or erroneous as a matter of law,” Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 83 (2d Cir. 2009). “Substantial evidence is ‘such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [administrator and] . . . requires more than a scintilla but less than Health & a preponderance.’” Welfare Trust, 318 Celardo F.3d 142, v. GNY 146 Auto. (2d Dealers Cir. 2003) (quoting Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995)). This scope of review is narrow and the Court is not permitted to substitute its own judgment for that of the decision maker. Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995); see also Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995) (“The court may not upset a reasonable interpretation by the administrator.”). Plaintiff suggests that the Court should apply a more exacting standard because Prudential was responsible both for 11 evaluating Plaintiff’s benefits. (Pl. Br. 5-6.) rejected the idea administrators’ that decisions eligibility and for paying those The Second Circuit, however, has district de novo courts any labors under a conflict of interest.1 must time the review plan administrator McCauley, 551 F.3d at 132. Rather, where there is evidence that a conflict of interest influenced the administrator’s decision to terminate benefits, that conflict is weighed as a factor in determining whether the administrator abused its discretion. See id. at 128. “No weight is given to a conflict in the absence of any evidence that the decision.” conflict actually affected the administrator’s Kelly v. Handy & Harman, 406 F. Appx. 538, 539 (2d Cir. 2011) (quoting Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 140 (2d Cir. 2010)). The proper weight afforded Prudential’s conflict of interest in this case is discussed in more depth, below. II. Application to Plaintiff’s Claim Prudential did not abuse its discretion in terminating Plaintiff’s LTD benefits because there was substantial evidence to support its view that Plaintiff was not totally disabled from performing the District Agent job. 1 Plaintiff concedes this point in his reply. (Pl. Reply 4 n.8.) 12 A. Total Disability Defined Prudential’s LTD disability Plan defines eligibility for LTD benefits as being “totally disabled from performing any and every Agent.” duties duty pertaining to your occupation (R. at PRU1230, Plan Documents.) entail servicing Prudential’s as a District A District Agent’s policyholders’ insurance needs, including traveling to policyholders’ homes for meetings. (R. at PRU1567, Job Description.) In the main, these duties are not inconsistent with Prudential’s position that the District Agent job standing, pounds. requires occasional only “occasional sitting,” and walking, lifting no more occasional than ten (R. at PRU1306, Prudential Nov. 10, 2003 Ltr. to Dr. Rosenberg.)2 2 Whether driving was an essential part of the job is disputed. Driving is not listed in the Job Description, and Prudential maintains that driving was not essential. (See Def. Br. 26-27.) Plaintiff argues that, practically speaking, District Agents who could not drive would not be able to meet their sales goals. (See Pl. Opp. 4.) Ultimately, inasmuch as driving was not an “official” job duty as set forth in the Job Description, the Court thinks Prudential was entitled to rely on its interpretation of the essential duties of the position. See Wenzel v. Prudential Ins. Co. of Am., No. 03-CV-5751, 2005 WL 2365221, at *7 (E.D.N.Y. Mar. 28, 2005). More to the point, though, is that there is substantial evidence from which Prudential could have properly concluded that Plaintiff was physically able to perform whatever driving was required. (See Def. Exs. H and I (surveillance video); Initial Rosenberg Report, PRU358-59 (limiting Plaintiff to “occasional” driving with an automatic transmission).) 13 B. Plaintiff was Capable of being a District Agent There was substantial evidence from which Prudential could have concluded District Agent. that Plaintiff was capable of being a On the Daily Activity Questionnaires, Plaintiff admitted that he drove a car or truck every day, helped with shopping and aided in household chores. (R. at PRU0299, January 13, 2003 Daily Activity Questionnaire; id. at PRU0044, June 25, 2001 Daily opinions Activity supporting physically Questionnaire.) Prudential’s examined Plaintiff and There are decision. concluded also Dr. that medical Rosenberg although he suffered from knee trouble, Plaintiff was able to work an 8-hour workday but should be restricted to “occasional walking, occasional standing, no crouching, occasional stair climbing, occasional driving (with an automatic transmission), and lifting is limited to no more than 20 lbs[.] on occasion.” PRU0359, Initial Rosenberg Report.) Dr. Foye (R. at reviewed Plaintiff’s medical file and examined the surveillance tape and concluded, like Dr. Rosenberg, that Plaintiff was capable of working as a District Agent. Plaintiff objects that (R. at PRU0599-600, Foye Report.) these “independent” medical reviews should not be trusted because Prudential paid the doctors’ fees. 14 Without more, Prudential’s considering the opinions of doctors whom it selected and paid is not an abuse of discretion. See Hobson, 574 F.3d at 90 (2d Cir. 2009). The surveillance videos also suggest that Plaintiff was not disabled. They depict him walking without assistance, getting in and out of a car without assistance, driving, lifting a baseball equipment bag, and helping coach (See Prudential Exs. H and I.) practice. little league Plaintiff pitches and catches a baseball without apparent difficulty and, although he occasionally appears to rest against a fence while his team is batting, he spends the entire two-hour practice on his feet without a knee brace or a cane. (Id.) Doctors Rosenberg, Kaplan and Foye agreed that, based on the capability Plaintiff demonstrated on the videos, District Agent level. Plaintiff could function at the (R. PRU0677, Addendum Rosenberg Report; id. at PRU0344, Kaplan Report; id. at 0599-600, Foye Report.) For at least three reasons, the Court rejects Plaintiff’s argument that Prudential’s use of surveillance in its decision-making Plaintiff’s was suggestion videotapes is incorrect. other evidence improper that (Pl. Prudential Br. relied (See id. 24.) supporting Prudential’s 15 23-27). solely First, on the As already discussed, decision included Plaintiff’s responses to the Daily Activity Questionnaires and Dr. Rosenberg’s initial report, in which he prescribed activity restrictions that were not incompatible with the District Agent job. (R. at PRU0358-59, Initial Rosenberg Report.) cases Plaintiff cites are inapposite. Life Insurance surveillance Co., results reported limitations. there were was Second, the In Hanuski v. Hartford no suggestion inconsistent with the that the plaintiff’s No. 06-CV-11258, 2008 U.S. Dist. LEXIS 7520, at *12-14 (E.D. Mich. Jan. 31, 2008). Here, by contrast, Plaintiff told Dr. Rosenberg that he did not participate in his children’s sporting activities but was caught on camera pitching during a two-hour little league practice. In Whitley v. Hartford Life & Accident Insurance Co., the court characterized surveillance video as recording irrelevant activities. the 262 Fed. Appx. 546, 555-56 (4th Cir. 2008). Here, however, the videos depict and Plaintiff walking, driving, carrying a bag that seemed to weigh at least ten pounds--the types of things he would do as a District Agent. Third, the caselaw is clear that surveillance is an acceptable way to help evaluate a claimant’s entitlement to disability benefits. See, e.g., Williams v. Hartford Life & Acc. Ins. Co., 2010 WL 1418093, at *6 (W.D.N.Y. Apr. 6, 2010) (citing Richard v. Fleet Fin. Group Inc. Ltd. Emp. 16 Benefits Plan, No. 09-CV-2284, 2010 WL 625003, at *2 (2d Cir. Feb. 24, 2010)); Rotondi v. Hartford Life & Ac. Group, 09-CV6287, 2010 WL 3720830, at *11 n.9 (S.D.N.Y. Sept. 22, 2010); Glockson v. First Unum Life Ins. Co., 2006 WL 1877140, at *5 (N.D.N.Y. July 6, 2006) (noting that there is “nothing improper in a physician comparing a claimant's behavior on surveillance videotape with claimant's performance in a formal setting”). The Court also rejects Plaintiff’s accusation that Prudential cherry-picked a handful of evidence from a medical file that otherwise (See Pl. Br. 12.) entitlement. conclusory overwhelmingly fashion, but to supports Plaintiff’s Plaintiff argues this point in the extent Plaintiff points to favorable evidence that Prudential allegedly ignored, the Court is not persuaded. Plaintiff points specifically to Dr. Adler, who examined Plaintiff in 2002 and concluded that “pain would be a significant factor in his probable inability to return to work.” (R. at PRU853, Adler Report.) But, although he opined that Plaintiff would be more suited for sedentary work, Dr. Adler suggested that Plaintiff abstain from “excessive” walking and stair climbing. Dr. Adler’s opinion was not the only evidence Prudential had concerning Plaintiff’s condition, but even if it was Prudential would 17 have been justified in concluding that inconsistent Dr. Agent job. with Adler’s the suggested physical restrictions requirements of the were not District Additionally, Dr. Adler examined Plaintiff without the benefit of the surveillance video, which would have given him a fuller picture of Plaintiff’s capabilities. Further, Dr. Alder issued his findings in 2002, more than 21 months before Prudential terminated Plaintiff’s benefits. In the Court’s view, rather than cherry-pick favorable evidence, Prudential surveillance evidence. video was justified undermined the in concluding credibility of that the Plaintiff’s See Cusson v. Liberty Life Assur. Co., 592 F.3d 215, 229-230 (1st Cir. 2010) (“[Plaintiff] argues that [Defendant] failed to consider her objective evidence of disability. However, the record reflects that Liberty reached its decision not because it failed to consider the evidence in [Plaintiff’s] favor, but because it determined that the surveillance results undermined evidence.”). the credibility of important portions of that In this case, video of Plaintiff participating in little league practice undermines the idea that Plaintiff’s knee injury would prevent him from meeting the physical demands of the District Agent job. undermined Plaintiff’s And perhaps most damagingly, the video own credibility 18 by contradicting his statements to Dr. Rosenberg that he could not participate in his children’s organized sports and that he needed a cane to walk. Further, in rejecting Plaintiff’s cherry-picking argument, the Court notes that Prudential is not required to give special weight to Plaintiff’s physicians. F.3d at 90. Hobson, 574, In any event, even one of Plaintiff’s doctors reached a conclusion similar to the “independent” doctors that Prudential hired. Dr. Varlotta examined Plaintiff during the course of his appeals, and his opinion was generally favorable to Plaintiff. He concluded that Plaintiff could not tolerate an eight-hour workday as an insurance representative, and he tried to downplay the significance of the video of little league practice. (R. at PRU0963, Varlotta Report.) Nevertheless, he partly agreed with Dr. Rosenberg that Plaintiff’s limitations “encompass occasional walking, standing, stair driving and lifting no more 5 [sic] to 10 lbs.” climbing and (Id.) The Court is also not convinced that Drs. Kaplan and Foye were so lacking in credibility that Prudential ought to have disregarded the results of their reviews. 18.) (See Pl. Br. 17- Plaintiff argues that Dr. Kaplan’s review is incredible because he billed Prudential for only 1.5 hours of his time, during which he purportedly reviewed Plaintiff’s medical file 19 and the surveillance videos, which themselves are at least two hours long. (Id.) The Court can imagine legitimate reasons why Dr. billed only Kaplan 1.5 hours; for example, perhaps he discounted some of his time or watched certain segments of the video (which tended to be repetitive) at an accelerated speed. Similarly, the Court disagrees that Dr. Foye’s emphasizing certain conclusions by underlining them or using bold text is (See Pl. Br. 18.) probative of bias. Dr. Foye was specifically asked his opinion of the surveillance footage, and he may have underlined his responses as a way to draw Prudential’s attention to the parts of his report that were responsive to Prudential’s inquiry. (See R. at PRU0599-600, Foye Report.) C. Prudential’s Decision Was Not Biased Plaintiff’s Prudential’s primary conflict of argument interest, appears coupled to with be a that tainted decision-making process, led to a decision that was inherently unfair. (See generally Pl. Br. 7, 9.) As an initial matter, the The Court disagrees. Court does not give significant weight to the conflict arising out of Prudential’s dual role as the payer claimants’ eligibility. less important (perhaps of benefits and the evaluator of A conflict of interest “should prove to the 20 vanishing point) where the administrator has taken steps to reduce potential bias and to promote accuracy.” McCauley, 551 F.3d at 133 (quoting Metro Life Ins. Co. v. Glenn, 554 U.S. 105, 117, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008)). Here, the Court agrees that Prudential has taken measures to reduce the risk of bias caused by its conflict of interest. Plaintiff’s claims and appeals were decided by different Prudential employees, and these employees’ compensation decisions. was not tied in any way to their eligibility (See Second Schopfer Decl., Def. Ex. K ¶¶ 3, 4.) These types of steps are key in a court’s giving a conflict of interest little or no weight in its analysis. See Fortune v. Group Long Term Disability Plan for Emps. of Keyspan Corp., 637 F. Supp. 2d 132, 144 (E.D.N.Y. 2009). Here, the Court thinks Prudential’s conflict is of little, if any, significance. The Court reaches this conclusion notwithstanding Plaintiff’s arguments that Prudential has a history of biased decision-making “Compensation claims. and Plan”) that Prudential’s rewarded (Pl. Br. 6-7.) managers Compensation who denied Plan (the disability As to an alleged history of bias, Plaintiff cites a number of cases in which Prudential’s claims determination have been reversed. (See Pl. Br. 6 n.4.) There are many cases in which Prudential’s decisions have been upheld, 21 however (see Def. Br. 5, 6 & n.3), and many more that are never litigated, and the Court is reluctant to infer an motive on the strength of the outcome of other cases. improper As to the Compensation Plan, Plaintiff has not put forth any evidence that contradicts Prudential’s witness who testified that the Compensation Plan was not structured to reward employees who denied disability claims. K ¶¶ 3, 4.) Plaintiff’s (See Second Schopfer Decl., Def. Ex. Although case received the claims “incentive managers awards” involved in (Declaration of Jason Newfield, Ex. D), there is no evidence suggesting that these awards took into eligibility decisions. account the employees’ benefits- The record indicates that the opposite is true. The Court also rejects Plaintiff’s position that Prudential’s decision-making process was irretrievably tainted by irregularities. (See Pl. Br. 6-7.) Plaintiff cobbles together several arguments in support of this theory, but they are unavailing either on their own or taken together. The Court disagrees that Prudential demonstrated bias in its correspondence with its retained physicians. Br. 10-11.) For example, Plaintiff describes (See Pl. Prudential’s November 10, 2003 letter to Dr. Rosenberg requesting an addendum 22 to his report as going to “extreme lengths” to influence Dr. Rosenberg’s finding. is inaccurate. for the In the Court’s view, this characterization Rather, Prudential is seeking a clarification apparent disparity between the conclusions of Dr. Rosenberg’s original report and the images on the surveillance tapes. Additionally, Prudential without did an Plaintiff’s not contrary simply intervening disability. to terminate change (Pl. Plaintiff’s in Br. Plaintiff’s its argument, LTD benefits understanding 15.) Here, of Plaintiff’s responses to the Daily Activity Questionnaires, the surveillance video, and Dr. Rosenberg’s report provided Prudential with new information about Plaintiff’s disability decision to terminate his benefits. that justified its Cf. McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 589 (8th Cir. 2002) (“[U]nless information available to an insurer alters in some significant way, the previous payment of benefits is a circumstance that must weigh against the propriety of an insurer's decision to discontinue those payments.” (emphasis added)). The Court is also not persuaded by Plaintiff’s attempt to show that Prudential tailored its description of the District Agent position to obtain favorable results. 23 Plaintiff argues that Prudential District Agent downplayed job to the physical convince doctors requirements that Plaintiff perform the job notwithstanding his knee problems. 20.) of the could (Pl. Br. As far as the Court can tell, however, Prudential has not described the nature of the District Agent job in a materially inconsistent way. Plaintiff compares a 2002 letter Prudential sent Dr. Adler (R. at PRU1295) with its follow-up letter to Dr. Rosenberg in 2003 (R. at PRU1306), but the descriptions of the position in the two letters are not at odds with each other. Plaintiff also maintains that, notwithstanding the formal job description, the District Agency position is classified as “light duty,” which connotes more than occasional walking and standing. (Pl. Br. 20; 21.) This discrepancy does not compel a reversal of Prudential’s decision. See Wenzel v. Prudential Ins. 2005 Co. of Am., No. 03-CV-5751, WL 2365221, at *7 (E.D.N.Y. Mar. 28, 2005) (concluding that discrepancy between a “sedentary” job and one that required the plaintiff to deliver packages for four hours per day was a question of fact and finding “nothing arbitrary or capricious about Prudential’s” decision to terminate benefits). CONCLUSION For the foregoing reasons, 24 Plaintiff’s summary judgment motion is DENIED, and Prudential’s motion is GRANTED. The Clerk of the Court is directed to mark this case CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 26 , 2011 Central Islip, New York 25
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