Figueiredo v. CIGNA Group Insurance et al, No. 1:2009cv00165 - Document 30 (D.R.I. 2010)
Court Description: MEMORANDUM AND ORDER denying 13 Motion for Summary Judgment; granting 17 Motion for Summary Judgment- So Ordered by Chief Judge Mary M Lisi on 6/8/10. (Barletta, Barbara)
Download PDF
<![CDATA[
Figueiredo v. CIGNA Group Insurance et al Doc. 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND DORA FIGUEIREDO, Plaintiff, v. C.A. No. 09-165ML LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant. MEMORANDUM AND ORDER The plaintiff in this case, Dora Figueiredo ("Figueiredo"), challenges the termination of long term disability ("LTD") benefits under an employee benefit welfare plan. After removing the case to federal court pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 100 et seq. ("ERISA"), the defendant, Life Insurance Company of North America ("LINA") filed a motion for summary judgment, to which Figueiredo responded with a cross motion for summary judgment. the provisions participant, of this Upon review of the parties' memoranda and the Court LTD Plan in determined terminate Figueiredo's benefits which that Figueiredo LINA's was decision a to is not entitled to deferential review and that the administrative record will be reviewed de novo. Figueiredo v. Life Ins. Co. of North America, - F.Supp.2d -, 2010 WL 737652 (D.R.I. 2010). Accordingly, the parties were instructed 1 Dockets.Justia.com to file memoranda to address (1) whether, under de novo review, LINA's decision was in error; and (2) what appropriate remedy may be ordered by this Court. Both parties have submitted supplemental memoranda as directed and the Court has conducted a thorough review of the administrative record. LINA's motion for For the reasons set forth below, summary judgment is DENIED and Figueiredo's motion for summary judgment is GRANTED. I. Facts Figueiredo is a 57 year old Rhode Island resident who began employment with Osram Sylvania, Inc. (UOsram") in 1988. AR 006. As part of her employment benefits, Figueiredo was a participant in Osram's Long Term Disability Plan (the purchased Group LTD Policy No. LK 030043 UPlan"). SUF 1. Osram (the Upolicy") from LINA, effective January I, 1999, to fund benefits under the Plan. SUF 2, AR 117. The Policy provides, inter alia, that U[s]atisfactory proof of Disabili ty must be provided to the Insurance Employee's expense, before benefits will be paid." Company, at the SUF 10, AR 133. In addition, the Policy states that uDisability Benefits will end . . [on] [t]he date the Insurance Company determines an Employee is not Disabled." SUF II, AR 133. Based on Figueiredo's age at the time she became disabled, any benefit payments to her terminate automatically at age 65. AR 121. The Policy provides the following definition of Disability: 2 Employee Sickness, An is Disabled if, because of Injury or 1. he or she is unable to perform all the material duties of his or her regular occupation, or solely due to Injury or Sickness, he or she is unable to earn more than 80% of his or her Indexed Covered Earnings; and 2. after Disability Benefits have been payable for 12 months, he or she is unable to perform all the material duties of any occupation for which he or she may reasonably become qualified based on education, training or experience, or solely due to Injury or Sickness, he or she is unable to earn more than 80% of his or her Indexed Covered Earnings. SUF 12, AR 120, 123, 126, 129. In September 2001, Figueiredo was employed as an "Inspector," which involved sorting and moving inventory in the Osram facility. SUF 3, see AR 644 (describing daily job duties as "fill boxes and put them on trays"). The DaTI Occupational Requirements, which define the necessary strength level for the occupation as "light," see SUF 3, further list tasks for the occupation as "Lifting, Carrying, Pushing, Pulling 20 Lbs. occasionally, frequently up to 10 LBS ., or negligible amounts constantly. Can include walking and/or standing frequently even though weight is negligible. Can include pushing and/or pulling of arm and leg controls." AR 516. According to Vocational Counselor Joy Sasson, the job "may require physically the ability to carry, occasionally. push and pull up to 20 lbs., This occupation requires the ability to stand or The Dictionary of Occupational Titles ("DOT") is a standard and Training reference work created by the EmploYment Administration. 3 walk for prolonged periods of time." AR 78, AR 628. A prior job evaluation by Osram notes that the Job Title of uInspect and Pack Finished Ware" U[1] ifts up to 40 Lbs , on occasion." an Packer," uInspector hours). standing is required frequently For (2.5-5 AR 631. On September 24, 2001, Figueiredo was seen by her general physician, Dr. Belarmino A. Nunes, M.D. her AR 630. left knee and leg. SUF 4, (uDr. Nunes"), for pain in AR 205. On October II, 2001, Figueiredo underwent an MRI of the left knee, which revealed an uundersurface tear of the posterior horn and body of the lateral meniscus." Surgeon Dr. SUF 5 r Robert arthroscopic partial knee. AR 278. AR 236. J. On December 13, Fortuna (UDr. 2001, Fortuna") Orthopedic performed lateral meniscectomy on Figueiredo's Between January and April of 2002, an left Figueiredo participated in physical therapy with William Hull, MPT (UHull"), but discontinued following her fourteenth visit after reporting significant pain during the process. AR 283-284. As a Rhode Island resident, Figueiredo was initially entitled to, and received, state temporary disability benefits. AR 93. On March I, 2002, Figueiredo filed a claim with LINA for LTD benefits . SUF 7, AR 645-51. On April 30, 2002, Figueiredo received a notification from Cigna Group Insurance (UCigna")2 that her claim 2 Figueiredo dismissed all claims against Osram and Cigna by stipulation. Stipulation, April IS, 2009 (Doc. # 3) . 4 had been approved, SUF 9, AR 606. March 24, 2002. Benefit payments commenced on SUF 8, AR 006. On April 1, 2002, Figueiredo underwent diagnostic imaging of her right shoulder for fractures, dislocations pain. The imaging report showed or other bone or joint pathology . I II "no AR 230. Records preceding Figueiredo's knee surgery I which precipitated the finding of disabilitYI state that she sought treatment for pain in her right shoulder and left upper back as early as January 24, 2000. AR 245. pushing At that time l Figueiredo reported that lifting and increased her Naproxen l light duty, pain. Id. Figueiredo was prescribed and six sessions of physical therapy . AR 246. On June Figueiredo/s 2002 II lateral a 1 follow-up MRI revealed a meniscus. According to new tear of Dr. Fortuna Figueiredo was "uncertain as to whether or not she want red] proceed with arthroscopy at the present time." sought a second opinion with Dr. Hd r s ch , AR 266. who additional surgery might worsen her condition. I to Figueiredo suggested that AR 74. For the next three years, Figueiredo saw Dr. Fortuna on about 30 occasions for varying complaints, including continuing difficulties with her kneel severe neck and arm pain l weakness of grip in the right hand I and numbness in the left leg. Fortuna/s Office Notes from November 12 2005 . AR 263-66. 5 1 See Dr. 2001 through March 25 1 On May 22, 2002, Cigna informed Figueiredo that the Plan required her to apply for Social Security Disability Insurance ("SSDI"). AR 593. Cigna also advised her that, if she chose not to apply for SSDI benefits, the Plan "allows for a reduction of your Long Term Disability benefits by an amount estimated that you would be eligible to receive." Id. (Emphasis in original). The Plan also provides "for a reduction of your monthly benefits by any Social Security benefits paid for that same period." AR 607. July 25, 2002, Figueiredo was awarded SSDI payments. AR 97. SSDI disabled Award Notice September 24, 2001. 5 full states that AR 588. calendar months Figueiredo became On The on Because she had to be "disabled for in a row before [she was] entitled to benefits," Figueiredo's first month of entitlement was March 2002. 3 After continuing to complain of pain in her shoulders, Figueiredo underwent diagnostic imaging of her spine and right shoulder on November 25, 2002. No fractures, dislocations or other bone or joint pathology were detected on the shoulder imaging. 449. AR However, the diagnostic imaging report of Figueiredo's spine revealed that she suffers from a "degenerated C6-7 disc." AR 224. According to interpreting physician Dr. Richard Anderson, the "C6-7 disc is moderately narrowed with small associated marginal osteophytes. The associated neural foramina are mildly narrowed 3 Once Figueiredo became eligible for SSDI, LINA's benefit payments to Figueiredo were limited to $100 monthly payments, the minimum coverage. See e.g. AR 532, AR 606. 6 bilaterally . Other discs and vertebral bodies are maintained in height. Alignment is anatomic." AR 224, AR 276. A Physical Ability Assessment Form ("PAA Form") provided by Dr. Fortuna to Cigna on April 22, 2002 states that, in an 8-hour worday, Figueiredo can occasionally «2.5 hours) lift or carry 10 pounds and that she can sit, stand, walk, or climb regular stairs occasionally. AR 621. Dr. Fortuna noted that Figueirdo cannot stoop at all and that she is unable to kneel, crouch, or crawl. AR 622. He confirmed that Figueiredo is able to reach overhead, at desk level, and below the waist, and that she is capable of fine manipulation and simple and firm grasps with either hand . At a December 30, 2002 office visit, AR 622. Figueiredo reported increasingly severe neck and right arm pain. A physical exam reveals that she has "significant difficulty moving her neck" and is "barely able to perform any extension whatsoever. flexion is not too bad. With lateral bending, numbness developing in the right hand." Forward she is reporting AR 372. An x-ray shows that Figueiredo suffers from degenerative disc disease at C6-C7, and a subsequent MRI shows central disc herniation at C5-C6, as well as "some foraminal stenosis on that side at multiple levels." AR 265. change The January 9, 2003 MRI report notes "[m]ild degenerative in the cervical spine with mild to moderate foraminal narrowing as well as mild central stenosis at C5-6 and C6-7 as described." AR 274. Dr. Fortuna prescribed physical therapy for 7 Figueiredo and various pain medications, Vicodin, Celebrex, and Vioxx. Id. including Tylenol # 3, At the same time, Figueiredo continued to see Dr. Nunes on approximately a dozen occasions for varying complaints, including persistent headaches, continuing problems with her left knee, neck pain, and right arm pain . AR 185 -207. On January 2, 2003 , Dr. Fortuna information per LINA's request, submitted additional which confirmed a diagnosis of cervical radiculopathy with symptoms of severe arm and neck pain. At the time, Figueiredo was prescribed Vicodin for pain and was scheduled for an MRI of the cervical spine. by Dr. Fortuna from AR 554. Office notes February 6, 2003 state that Figueiredo has experienced no relief from physical therapy and that she is still experiencing "significant radicular complaints down the right arm ." AR 265. On February 20, 2003, Figueiredo consulted with Neurologist Dr. Barry L. numbness." Levin, M.D. AR 222. ("Dr. Levin") for "right arm pain and According to the Electrodiagnostic Report, Figueiredo suffered from "intermittent pain in the right upper extremity, radiating from the shoulder to the lateral arm, dorsal forearm thumb. She also reported numbness in the same area and a feeling of weakness in her right hand." unable to Figueiredo perform "due to a complete poor EMG tolerance 8 AR 222. Dr. Levin was [electromyogram] of EMG study study and on patient 9 On December 10, 2003, Dr. Fortuna submitted a Follow-Up Medical Request Form on which he stated that Figueiredo was uunable to do any lifting of any kind no over head work." responded functional in the affirmative deficits to to prevent essential job functions?" Although he the question UDo you your patient from expect performing he also noted that she could perform usedentary work only [illegible] pain & numbness." AR 528. 4 In August 2005, Dr. Fortuna submitted an updated PAA Form, which provides a grid to indicate whether U[t]hroughout an 8-hour workday, the patient can tolerate, with positional changes and meal breaks, the following activities for the specified duration." 482. AR Dr. Fortuna concluded that Figueiredo was able to perform fine manipulation, simple grasp, and firm grasp (defined as 67-100% - 5.5+ hours) . SUF 20, AR 482. ucontinuously" According to Dr. Fortuna, Figueiredo was also able to sit Ufrequently" (defined as 34-66% - 2.5-5.5 hours); stand, walk, and reach at desk level or below the waist uoccasionally" lift or carry 10 occasionally. lbs. (defined as 1-33% or <2.5 hours); frequently; and lift or carry 20 lbs. AR 482. Dr. Nunes' assessment of Figueiredo's physical abilities was 4 The information provided by Dr. Fortuna on this form is somewhat ambiguous. Although he checked UYes" for the question UCould your patient return to work at this time if accommodations were made for the listed restrictions?," he then proceeded to respond to the uIf no, why not?" follow-up question. He also stated that it was uunknown" when his patient could return to work. AR 528. 10 decidedly lower. According to his August 22 1 2005 PAA Form with I the exception of frequently performing simple or firm grasp with the left hand I Figueiredo could only occasionally s t.and , reach or perform any of the other listed tasks. respect to "Sitting /" Dr. applicable to diagnosis (es) ." Nunes checked AR 489. the wa Lk , AR 489. option With of "Not He also noted that he could not determine whether Figueiredo was capable of fine manipulation with her left hand. Id. A further MRI performed on November 9 1 2005 revealed "[n]o evidence of frank disk herniation /" but resulted in an impression of " [l]umbar discogenic change with disc bulges at L4-5 and L3-4 lateralizing to the right side. Mild central stenosis and mild right greater than left neural foraminal narrowing as described." AR 262. Figueiredo was again evaluated for physical therapy February 14 1 2006 by physical therapist Stevan Simon ("Simon") I on who detailed in his assessment the limitations on Figueiredo s range of l motion and associated reports of pain. AR 395. s imon ' s PT evaluation states that Figueiredo suffers from "chronic low back pain with sciatic pain in the lower extremity." AR 395. describes Figueiredo's limitations in movement and notes Simon that " [m] uscle testing was not done due to severe guarding and pain reported." AR 395. Simon concludes that Figueiredo would benefit from short term therapy to alleviate her sYmptoms and improve her 11 overall mobility, given the but that her "[p]rognosis is guarded at best, chronicity of the problem." AR 395. Figueiredo participated in physical therapy with Simon for about four weeks during which her mobility showed some improvement. However, Figueiredo reported throughout the month that she was experiencing continuing pain. AR 396-398. Based on the information provided on the PAA forms and other submitted documentation, LINA advised Figueiredo by letter dated January 17, December 2006 that her LTD benefits were discontinued as of 23, 2005. SUF 21, AR 473. The letter states that Figueiredo has the "functional capacity" to work in her occupation and that the evidence does not support her inability to perform her occupation. AR 475. LINA also advised Figueiredo that she could appeal the termination of her LTD benefits and that LINA "would be happy to consider any medical evidence which supports your total disabili ty, " including medical January 2005 and January 2006. records for the period between SUF 22, AR 475. Figueiredo notified LINA through her attorney by letter dated April 11, 2006 that she wished to appeal LINA's decision and provided all medical reports she had received from Drs. Fortuna and Nunes. SUF 23, AR 364. LINA again reviewed Figueiredo's file and, after again determining that the information did not support a reopening of the claim, forwarded the file to a LINA appeals unit. SUF 24, AR 363. Shortly thereafter, on May 24, 2006, Dr. Fortuna 12 performed an arthroscopic partial lateral meniscectomy and arthrotomy on Figueiredo's left knee in order to excise a meniscal cyst. SUF 25, AR 256. In connection with Figueiredo's appeal to LINA, Figueiredo's medical information was reviewed by an independent physician, Dr . Maria Hatam ("Dr . Hatam"). SUF 26, AR 337. Dr. Hatam's June 8, 2006 report states that Figueiredo's C spine MRI from November 2005 showed minimal right lower lumbar changes, treatment was recommended. It also notes but that no invasive that Figueiredo was diagnosed with trochanteric bursitis [painful inflammation in the hip area] and a left knee meniscal cyst and possible meniscal tear, but that surgery was not done until May 2006. AR 25, AR 337. Dr. Hatam concluded that "[t]he medical information provided supports [restrictions and limitations] for sedentary level impairment but not light level due to [left] knee meniscal changes." AR 337. Next, LINA requested a Transferable Skills Analysis ("TSA") to determine "what occupations Ms. Figueiredo is qualified and able to perform." AR 331, SUF 27. According to the TSA, Figueiredo suffered from "Back and Neck pain, DDD [degenerative disk disease] , DJD [degenerative joint disease] ," and was "[a]ble to perform at the Sedentary physical demand level." identified limitations and her AR 331. transferable Based on those skills and wage requirement, it was concluded that Figueiredo could perform the job of dowel inspector, nut sorter, tablet tester, or table worker. Id . 13 All four of those occupations are described as "sedentary" and require a worker to "[p]erform repetitive or short-cycle work, make judgments and decisions, attain precise set limits, tolerance and standards, compare data, take instructions and handle things." 331. AR It is unstated to what extent reaching, grasping, lifting, and/or manipulation is required for either of those occupations. LINA's records from that time period reflect that "ov [office visit] notes indicate [claimant] continues to have back pain continueing [sic] down right leg down to foot" and that Figueiredo underwent surgery on May 27 and anterior meniscal [sic], 2006 for lateral meniscal tear cyst. AR 38. Based on Dr. Hatam's determination that Figueiredo was precluded from functioning in a light capacity, but not in a sedentary capacity, and the four possible occupations identified by the TSA, LINA affirmed the prior denial of Figueiredo's claim. AR 38. LINA informed Figueiredo by letter dated June 20, 2006 that, after careful review, the denial of her claim was affirmed. 29, AR 158-60. The letter also noted that, SUF although Figueiredo underwent knee surgery in May 2006, "this surgery took place almost five months after her Disability benefits ended and therefore does not provide December 23, evidence 2005." of continuous Because Disability Figueiredo's going back to disability coverage terminated when her disability benefits ended, "as of May 2006, Ms. Figueiredo was no longer covered under [the Plan]." 14 AR 159. On July 18, 2006, Figueiredo again appealed the decision and advised LINA that she would provide additional medical information supporting her claim "in the near future." SUF 30, 31, AR 301-303. Figueiredo then traveled to Portugal for two months, SUF 32, AR 258, and LINA requested additional medical information. 300. Figueiredo submitted a February 23, SUF 33, AR 2007 letter from Dr. Fortuna stating that she had been "continuously disabled from any occupation specifically from 12/23/05 but has been totally disabled actually much before that." AR 255. Although Figueiredo's February 2007 request for voluntary appeal was apparently made outside the stated appeal window, LINA accepted the appeal and forwarded the file to LINA's Appeals Team. On April 5, 2007, LINA upheld its Figueiredo's LTD benefits. LINA's receipt of a SUF 34, AR 156-57. decision SUF 36 , AR 153-55. letter from Dr. Fortuna to terminate The denial notes indicating that Figueiredo had been continuously disabled since before December 23, 2005. Nevertheless, LINA concluded that" [t] he medical information reviewed does not provide evidence of functional def ici ts by clinically measurable testing such as validated range of motion or strength measurement which supports restrictions from December 24, 2005 forward ." AR 154. LINA acknowledged that Figueiredo "would not have been able to perform her occupation when she underwent knee surgery in May documentation on file of 2006," but maintained does not provide evidence of 15 that "the continuous functional deficits that would have prevented her from performing any occupation from December 23, 2005 to the time of surgery." 37, AR 154. LINA's records acknowledged that, according SUF to Figueiredo's PE [physical examination] provider, she suffered from uweakness of left hand and cant [sic] hold heavy objects and severe impingment [sic] on rt."s AR 18, AR 19. Dr. Nunes's assessment from January 30, 2006, on which this notation in LINA's records is based, also makes reference to severe pain of the cervical spine and both shoulders. AR 169. lack of measured rom LINA noted further that Uthere is [range of motion] and strength noted to support [claimant's] complaint and any weakness found by provider." AR 18, AR 19. In the month following LINA's denial, Figueiredo submitted identical affidavits from Dr. Fortuna and Dr. Nunes, which stated that, ubased on a reasonable degree of medical certainty [] patient has been continuously disabled from any the occupation specifically from 12/23/05 but has been totally disabled actually much before that." SUF 38, AR 174, 254. In a letter dated May 2, 2007, Dr. Nunes concluded that UMrs. Figueiredo is totally disabled and incapable of any gainful employment due to a degenerated C6-7 disc." AR 175. In his letter, Dr. Nunes also provided information regarding the three last visits Figueiredo made to his office. AR 5 According to her Disabilities Questionnaire, right-handed. AR 603. 16 Figueiredo is 175, AR 181. According to Dr. Nunes, an April 24, 2006 Uphysical examination revealed cervical spine pain upon palpitation and all motion." On November 27, 2006, Figueiredo consulted him again with complaints of uupper and lower back pain, bilateral shoulder arm and hand pain." AR 175, AR 181. LINA again reviewed Figueiredo's denial by letter dated June 6, 2007. grounds for its denial, LINA file and issued a final SUF 39, AR 149. As one of the expressed that U[t]he medical documentation reviewed does not provide evidence of functional deficits by clinically measurable testing." 2007 letter, as all of the denial AR 149. The June 6, letters before it, advised Figueiredo that she had Ua right to bring legal action regarding her claim under the ERISA section 502(a)." 18, 2008, Island AR 149. On December Figueiredo filed her claim for LTD benefits in Rhode Superior Court, which LINA removed based on ERISA preemption. SUF 40, 41. On December 29, 2009, this Court conducted a hearing on the parties' hearing, cross motions for summary judgment. Following the the Court directed the parties to file short memoranda addressing the question of which standard of review the Court should employ in considering the parties' motions. supplemental memorandum on January 19, 2010 LINA filed a and Figueiredo responded with a memorandum in opposition on January 26, 2010. After considering the parties' memoranda, the Court determined 17 that the Plan's provision that "satisfactory proof of disability must be provided to the Insurance Company" was insufficient to convey discretionary authority on LINA because indicate to whom such proof must be satisfactory. it failed to Accordingly, the Court issued a Memorandum and Order on March 1, 2010, advising the parties that it would conduct a de novo review of LINA's decision to terminate Figueiredo's benefits. North America, -F.Supp.2d -, Figueiredo v. Life Ins. Co. of 2010 WL 737652 (D.R.I. 2010). The Court also instructed the parties to file additional memoranda to address "( 1) whether, when viewed under the de novo standard deemed applicable in this matter, LINA's termination of Figueiredo's long term disability benefits was in error; and (2) if such termination was in error, Court." Id. at *6. II. As what appropriate remedy may be ordered by this Both parties filed memoranda as instructed. 6 Standard of Review previously determined by this Court, standard of review in this case is de novo. the Court independently weighs the facts the appropriate In a de novo review, and opinions in the administrative record to determine whether the claimant has met his or her burden of showing that he or she is disabled as defined by the plan at issue. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 6 The Court notes that LINA primarily renewed its argument for application of deferential review and took no position on what remedy this Court may order, should the termination of benefits be deemed erroneous. 18 510, 518 (1st Cir. 2005). uWhile the court does not ignore facts in the record, see Recupero v. New Eng. Tel. & Tel. Co., 118 F.3d 820, 830 (1st Cir. 1997), the court grants no deference to administrators' opinions or conclusions based on these facts." Id. In other words, the Court stands uin the shoes of the administrator to 'determine whether correct.'" Richards v. the administrative Hewlett-Packard Corp., decision was 592 F.3d 232, 239 (1st Cir. 2010) {quoting Few v. Liberty Mutual Ins. Co., No. 06-CV00427-JL, 2009 WL 756211 (D.N.H. March 19, 2009)) . In evaluating a motion for summary judgment regarding the denial of benefits under ERISA, Uthe non-moving party entitled to the usual inferences in its favor." Revere Life Ins. Co., 404 F.3d at 517. is not Orndorf v. Paul Instead, Usummary judgment is simply a vehicle for deciding the issue." Id. The First Circuit has established that the Uguiding principle in conducting de novo review is that it is the plaintiff who bears the burden of proving he [or she] is disabled." Id. at 518, 519 {citing Terry v. Bayer, 145 F.3d 28, 34 (1st Cir. 1998) (burden rests on the insured to make a showing sufficient to establish a violation of ERISA)). In this case, pursuant to the terms of the Plan, Figueiredo's burden is to prove that she is Uunable to perform all the material duties of any occupation for which he or she may reasonably become qualified based on education, training or experience." III. Discussion 19 LINA asserts in its memorandum that "the plaintiff's burden was to provide satisfactory proof" that she was unable to perform any occupation "because of the injury to her left knee." LINA's Supp. Mem. 8. That statement would suggest that Figueiredo's claim is limited to only the injury which initially qualified her for LTD benefits. The Plan, however, imposes no such specific requirement. If Figueiredo demonstrates that, under the Plan, she incurred while she was deemed disabled or was diagnosed with another disabling condition that precluded her from performing "all the material duties of any occupation," she is entitled to continuing benefits. The record submitted to LINA regarding Figueiredo's medical problems is voluminous and consistent. It reveals that, even before Figueiredo underwent surgery for a meniscal tear in her left knee in October 2001, she sought treatment for pain in her right shoulder and upper back and reported that lifting and pushing increased her pain. Within six months of her initial surgery, Figueiredo another suffered continuing leg pain. meniscal tear which resulted in Figueiredo decided not to undergo additional surgery at that time after receiving a second opinion advising her that such surgery documentation might Figueiredo worsen her submitted, condition. she Based continued on to the have difficulties with her left knee and leg until she finally had a second surgery in May 2006 to address a meniscal cyst and the 20 meniscal tear in her left knee. As Figueiredo continued to complain of pain in her shoulders and back, she was eventually diagnosed with cervical radiculopathy involving several spinal discs. The record is replete with evidence that Figueiredo sought to alleviate the pain and improve her condition, but that she consistently reported experiencing severe pain and continuing difficulties with reaching, grasping, and lifting. Over the course of her treatment, Figueiredo consulted Dr. Fortuna on about 30 occasions, and Dr. Nunes on at least a dozen occasions. Although she also presented with a number of unrelated health issues, together with difficulties predominate. the increasing neck and arm pain, in movement and resulting numbness In the course of diagnosis and treatment, Figueiredo submitted to numerous x-rays and MRIs, finding of degenerative changes. all of which confirmed a She also consulted a neurologist, but was unable to endure a complete electrodiagnostic examination because of the pain. Figueiredo was prescribed significant pain medication including Tylenol #3, Vicodin, Celebrex, and Vioxx. In addition, Figueiredo of therapy, participated in at least three initially related to her knee, being diagnosed with herniated C6-C7. series physical and subsequently, after The PT report from Spring 2003 is consistent with office notes from Figueiredo's physicians, reflecting Figueiredo's continuing difficulties with using her arm, reduced grip strength, as well as severe shoulder and neck pain and 21 impaired range of motion. Figueiredo's claims regarding the pain in her neck and shoulders are well supported by medical imaging. An MRI taken in November 2002 shows a supports that degenerated C6 - finding; a January C7 disc; 2003 MRI a later x-ray report reveals degenerative changes to Figueiredo's cervical spine; a November, 2005 MRI confirms central stenosis and foraminal narrowing. While the degeneration of Figueiredo's cervical spine is described as Umild" or umild to moderate," she consistently reported severe arm and neck pain as a result. In addition, Figueiredo continued to suffer from leg pain related to the lateral meniscal tear in her left knee, for which she eventually underwent surgery in May 2006 . Although LINA's records reflect that it was aware of Figueiredo's arm and neck pain and her related weakness of grasping or holding of objects, the focus of LINA's assessment appears to have been on Figueiredo's knee injury, for which she was initially found disabled. LINA's identification of four possible jobs Figueiredo could perform appears primarily based on the fact that those occupations were usedentary." inspector, tablet tester, specific nut sorter, or quantitative required for the work, that Figueiredo had The descriptions of dowel description or table worker lack any of the actual movements nor does the TSA take into consideration difficulties grasping and suffered from weakness in her arm(s) . LINA's denial of Figueiredo's benefits acknowledges that, when 22 Figueiredo underwent knee surgery in May of 2006, have been able to perform her occupation." "she would not LINA maintained, however, that Figueiredo failed to "provide evidence of continuous functional deficits that would have prevented her from performing any occupation from December 23, 2005 to the time of surgery." LINA also asserted that the May 2006 surgery "does not provide evidence of continuous Disability going back to December 23, 2005," when she was deemed to be no longer disabled. A review of the record reveals that Figueiredo suffered a meniscal tear in her left knee shortly after her first surgery and that she complained of pain in her left leg thereafter. Moreover, all MRIs, support a including one performed in November 2005, finding of degenerative change in Figueiredo's cervical spine. Dr. Nunes, who examined Figueiredo in January 2006, notes that Figueiredo suffered from severe neck and arm pain. February 2006 PT notes from Figueiredo's physical therapist detail Figueiredo's limitations on her range of motion and document Figueiredo's report of pain during the therapy. A physical examination by Dr. Nunes in April 2006 also reveals "cervical spine pain upon palpitation and all motion." In sum, the record relative to the time period between December 2005 and May 2006 indicates that Figueiredo's disability continued beyond December 2005 because her condition, both with respect to her left knee and the degeneration of her cervical spine, had not improved over time. As LINA points out in its memorandum, the First Circuit has 23 consistently held that "benefits eligibility determinations by the Social Security Administration disability insurers." ["SSA"] are i Med. 699 System, binding on Pari-Fasano v. ITT Hartford Life and Acc. Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000) Card not Inc., 486 F.3d 693, Morales-Alejandro v. (1st Cir. 2007). Although an award of Social Security benefits may be relevant in reviewing unless the eligibility determination of a private insurer, the insurer's plan sets forth criteria identical to those employed by the SSA, "it should not be given controlling weight." Pari-Fasano, 486 F.3d at 420. In the case before the Court, the Figueiredo became disabled on September 24, SSA 2001. determined that LINA approved Figueiredo for LTD benefits effective March 24, 2002, and continued to approve her for benefits until December 23, 2005. After that date, LINA determined that Figueiredo was no longer disabled because she had the "functional capacity" to perform a sedentary occupation and because it deemed the evidence submitted by her insufficient to demonstrate disability. Although Dr. Nunes reported that Figueiredo was found to be "totally disabled" by SSDI, see AR 488, there is no evidence in the record that the SSA ever reviewed and/or confirmed Figueiredo's disability status. However, even without determination by the SSA, administrative disability. record consideration of the disability this Court is of the opinion that the amply supports Figueiredo's claim for The overall picture is that of a patient who consulted 24 several physicians and specialists on numerous occasions and who underwent both diagnostic procedures and repeated attempts at physical therapy to find relief from persistent and severe pain resul ting from degenerative changes in her cervical spine and recurring knee injuries. IV. Remedy The Court has ~considerable discretion" in formulating a remedy if it determines that the termination of disability benefit was in error. Buffonge v. Prudential Ins. Co. of America, 426 F.3d 20, 31 (1st Cir. 2005) (~[T]he court must have 'considerable discretion' to craft a remedy after finding a mistake in the denial of benefits") i Cook v. Liberty Life Assur. Co. of Boston, 320 F.3d 11, 24 (1st Cir. 2003) (court has ~discretion to formulate a necessary remedy when it determines that the plan has acted inappropriately") . Generally, a district court will ~either remand the case to the administrator for a renewed evaluation of the claimant's case, or it can award a retroactive reinstatement of benefits." Liberty Life Assur. Co. of Boston, 320 F.3d at 24. Cook v. If it appears that the insured's disability ended at some time in the past, remand is appropriate because an award of retroactive benefits would result in an economic windfall to the insured. However, where the insured would have continued to receive the benefits, or where there was no evidence in the record to support a termination or benefits, retroactive reinstatement is appropriate. at 24. 25 denial of Cook, 320 F.3d This Court, after administrative record, conducting a de novo review of the has determined that Figueiredo was denied benefits to which she was entitled under the Plan. Therefore, it is appropriate to award those benefits to her retroactively and, unless she fails to demonstrate her disability in the future, on a continuing basis. Given that Figueiredo suffers from degenerative changes that cause her disability, award will result in an it is not likely that such an "economic windfall." Moreover, as previously stated, more than 90% of Figueiredo's disability payments are paid by the SSA, whereas LINA only contributes a $100 monthly payment, the minimum amount of coverage under the Plan. In addition, after Figueiredo's disability benefits have been restored to her, she once again bears the obligation to demonstrate that she is disabled under the terms of the Plan. If she is unable to prove that she cannot perform "any occupation," LINA may pursue termination of Figueiredo's disability status at that time. Conclusion For the reasons stated herein, LINA's motion for summary judgment is DENIED i and Figueiredo's motion for summary judgment is GRANTED. Figueiredo is awarded disability benefits under the Plan for the period from December 23, 2005 to the date of this Memorandum and Order and continuing until such time as it is determined that she 26 is no longer eligible for such benefits. SO ORDERED. Mary M. Lisi Chief United States District Judge June r 1 2010 27
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
