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Brown v. Hartford Life & Accident Ins. Co.

United States District Court, D. Columbia.

January 28, 2014

THIA J. BROWN, Plaintiff,

Decided: January 27, 2014.

Page 89

For THIA J. BROWN, Plaintiff: Kenneth Hanson Rosenau, LEAD ATTORNEY, ROSENAU & ROSENAU, Washington, DC.



For THIA J. BROWN, Counter Defendant: Kenneth Hanson Rosenau, LEAD ATTORNEY, ROSENAU & ROSENAU, Washington, DC.


Page 90


RICHARD J. LEON, United States District Judge.

(January 27th, 2014) [Dkt. ##27, 29]

Plaintiff Thia Jai Brown (" plaintiff" or " Brown" ) brings this case against Hartford Life and Accident Insurance Company (" defendant" or " Hartford" ), challenging the termination of her benefits under a Long Term Disability (" LTD" ) insurance policy. See Compl. [Dkt. #1]. Hartford filed a counterclaim alleging that Brown was in fact over paid and therefore owes Hartford more than $36,000. See Answer with Affirmative Defenses and Countercl. (" Answer" ) ¶ ¶ 51-74 [Dkt. #15]; Def. Hartford Life and Accident Ins. Co.'s Mem. of Law in Supp. of Its Mot. for Summ. J. (" Def.'s Mem." ) at 25-26 [Dkt.

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#28].[1] Both parties have moved for summary judgment. See Def. Hartford Life and Accident Ins. Co.'s Mot. for Summ. J. [Dkt. #27]; Mot. for Summ. J. as to Pl.'s Compl. and Def.'s Countercl. [Dkt. #29]. Upon consideration of the parties' pleadings, relevant law, and the entire record therein, the plaintiff's motion is DENIED and the defendant's motion is GRANTED.


Brown is a 38-year-old histotechnologist,[2] who worked for Universal Health Services, Inc. (" Universal" ) from March 11, 2002 through July 12, 2008, see Compl. ¶ 9; HLI00594, and was covered by Universal's ERISA-qualified Group Benefit Plan, HLI0020-63. Plaintiff stopped working on July 12, 2008 and applied for LTD benefits two months later, citing " chronic swelling and pain" in her feet and legs. HLI0531-33. Her physician, Dr. Andrew Lee, diagnosed her with synovitis of unclear etiology [3] and sarcoidosis.[4] HLI0369. On January 27, 2009, Hartford approved plaintiff's application and awarded her monthly benefits of $2,331.68, retroactive to January 11. HLI0210-14.

From October 2008 through March 2011, plaintiff's rheumatologist was Dr. Thomas Grader-Beck. HLI0516-18; HLI0296-99. In that time, Dr. Grader-Beck treated plaintiff's sarcoidosis and an array of other medical conditions not now at issue.[5]

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In September 2009, however, Hartford became suspicious that Brown was engaged in physical activities that she had not reported to the insurance company or to her doctor. On September 22, plaintiff sent Hartford a facsimile that indicated it came from " Sweet Jai's Catering" (Jai being plaintiff's middle name). HLI0405. Three weeks later, on October 14, 2009, a Hartford Ability Analyst spoke with Brown on the phone. HLI0010. During the call, the analyst " could hear a baby in the background," id., and it " [s]ounded like [Brown] was holding [the] baby as it was very close to phone and could be heard making noises throughout entire phone call," HLI0404. When asked about the baby, Brown claimed " someone was visiting her." HLI0010. At the time, she claimed she was " unable to do any part of her job and she does nothing at home; only takes a bath and sometimes reads and watches TV" and that " she [was] not receiv[ing] any other income." Id. Unpersuaded, Hartford referred plaintiff's case to its Special Investigation Unit. HLI0404.

Hartford hired two firms to surveil Brown for four days in November and December 2009. HLICIU0651-60. On all four days, investigators observed an unidentified female drive up to plaintiff's home between 7:25 and 7:55 AM and leave a small child inside. HLICIU0654-60. The child remained with plaintiff until at least 4:00 PM when the surveillance ended. Id. In addition, on November 3, the investigators observed a neighbor enter Brown's residence at about 11:30 AM, at which time Brown walked to her car, drove to a Safeway supermarket, walked around the store, went into a CVS pharmacy next door, purchased baby-related items, drove back to her residence, and walked back inside while carrying a shopping bag in one hand and her cell phone in the other. HLICIU0655-56. About an hour later, two unidentified males visited Brown and left carrying Styrofoam food trays and a beverage cup. HLICIU0656. As the men were leaving, Brown was " holding a child near the front door," then placed the child down, " exited the residence and began to run towards the vehicle the two males were occupying." Id. The investigator concluded that although " [t]here was no evidence of the subject working at a catering company or at any company[,] . . . it appeared as if the subject may be possibl[y] selling food out of the residence." HLICIU0657.

On January 4, 2010, the Social Security Administration (" SSA" ) denied Brown's application for disability benefits because " [t]he medical evidence show[ed] that [she was] responding to treatment and . . . able to carry out [her] activities of daily living without assistance." HLI0465. According to the SSA, plaintiff " should be capable of work which is not physically demanding," and her " condition [was] not severe enough to keep [her] from working." Id. Hartford arranged for Brown to have legal counsel to appeal SSA's decision. HLI0100; HLI0478. SSA denied her first appeal. HLI0307.

By April 29, 2010, Dr. Grader-Beck had determined that most of Brown's medical conditions were improved; he identified

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only sarcoidosis, arthralgias,[6] and dry cough as continuing " Problems/Diagnoses." HLI0323. She complained of left-ankle pain, but Dr. Grader-Beck found " no clear sign of any inflammatory process." Id. He also noted that the dry cough could be a " recurrence of pulmonary involvement with her sarcoidosis," though he " believe[d] that it [was] unlikely." Id. Four months later, on August 26, 2010, Dr. Grader-Beck signed an Attending Physician's Statement of Functionality, which listed sarcoidosis as Brown's primary diagnosis, " joint pain [and] fatigue" as her subjective symptoms, and erythema nodosum and ankle arthritis as his physical examination findings. HLI0318. He described Brown's condition as " Improved" and said that she was capable of sitting, standing, and walking for one to two hours at a time for a total of nine hours per day. HLI0319. She could also occasionally lift up to 20 pounds, bend at her waist, kneel, crouch, and drive. Id.

In light of these positive changes in Brown's condition, Hartford arranged for a Vocational Rehabilitation Counselor to analyze her ability to work a job. The resulting Employability Analysis Report (" EAR" ) confirmed that she was capable of handling the demands of at least six occupations including histotechnologist. HLI0308-14. Accordingly, on September 27, 2010, Hartford notified Brown that she did not qualify for LTD benefits beyond September 30. HLI0143-47.

Brown appealed the decision in a letter dated March 23, 2011, wherein she stated that Drs. Grader-Beck and Julie Paik had diagnosed her with fibromyalgia.[7] HLI0305. Newly-submitted medical records from Drs. Grader-Beck and Paik dated October 28, 2010 indicated that Brown had complained of worsening pain in her ankles and hips, and that " only staying still [made] the pain better." HLI0293. She also complained of dry cough. Id. The doctors noted that there was " no clear sign of any inflammatory process" and that plaintiff " [did] not meet the criteria for fibromyalgia." HLI0294 (emphasis added). " Problems/Diagnoses" were the same as on April 29, 2010: sarcoidosis, arthralgias, and dry cough. HLI0294-95.

In a March 13, 2011 report, Drs. Grader-Beck and Paik reported no abnormalities in either the MRI on Brown's hips or the pulmonary function tests used to assess her dry cough. HLI0296. A CT scan of her chest was also clear. Id. She did complain about general stiffness and pain, but she said nothing about her prior hip pain. HLI0296-97. Moreover, her sarcoidosis was " essentially in remission." HLI0297. Finally, Dr. Grader-Beck noted that Brown had " multiple tender points . . . consistent with fibromyalgia," id., though he did not report " point tenderness in at least 11 of 18 specified sites," as required to formally diagnose the condition, see supra note 7. The report, as initially drafted by Dr. Paik, said that " [p]laintiff is disabled from her fibromyalgia at this point in time," but Dr. Grader-Beck's addendum was less certain about that diagnosis: " I am worried that she has developed fibromyalgia." HLI0298.

In late May, another rheumatologist, Dr. Asian Mubashir, began treating Brown's sarcoidosis--which Dr. Grader-Beck had

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determined was in remission months earlier. HLI0277. Dr. Mubashir never diagnosed Brown with fibromyalgia or opined that she was disabled. On June 6, 2011, a Dr. Marc Schlosberg interpreted the results of a nerve conduction study and found that the test " demonstrate[d] a very mild, mainly demyelinating neuropathy." [8] HLI0271. Just two days later, Brown started visiting yet another doctor, Dr. Janaki Kalyanam, who on June 29, 2011 certified without explanation that plaintiff was unable to return to work. HLI0275. On July 18, 2011, Dr. Navdeep Mathur signed a medical assessment form, offering a much bleaker view of Brown's condition than had Dr. Grader-Beck or the nerve conduction study. HLI0254-56. In the five places where the form asked for the " medical findings/diagnosis that support[ed his] assessment," Dr. Mathur wrote only " patient's history." HLI0254-55. There is no indication that Dr. Mathur personally examined Brown before citing a " presumptive diagnosis [of] fibromyalgia." HLI0256. Dr. Janaki Kalyanam signed a nearly identical form three days later. HLI0257-59. She noted that " fibromyalgia" and a " recent diagnosis" supported her assessment of plaintiff's impairment, but like Dr. Mathur, she provided no details of any medical examination or treatment. Id.

Hartford referred Brown's case to an independent rheumatologist, Dr. Chelsea I. Clinton, who " reviewed all information, records and data provided . . . by [Hartford]" and attempted on several occasions to talk with Drs. Grader-Beck, Kalyanam, and Mubashir, none of whom returned her calls. HLI0229--30. Based on plaintiff's medical history--which Dr. Clinton summarized at the outset of her report, HLI0229--she concluded that Brown " does maintain the functional capability to consistently perform work activities for eight hours per day, 40 hours per week on a sustained basis." HLI0231.

The following day, Hartford denied Brown's appeal. HLI0130-34. In reaching its decision, Hartford said, it had " considered not only the medical information provided but information you provided us, as well as the opinion of your treatment providers and review by the independent physician and provisions of the [LTD] contract." HLI0134.

Months later, SSA granted Brown's application for Social Security disability (" SSD" ) benefits.[9] A Hartford representative warned plaintiff, however, that " SSD is considered a direct offset to her benefits with [Hartford] and that if SSD [is] retro[actively] awarded, she would have an [overpayment] . . . that she would be required to pay back." HLI0065; see also HLI0037-38; HLI0041 (" overpayment" provisions).

Brown now moves for summary judgment on her claim that Hartford's decision to terminate her LTD benefits violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (" ERISA" ). See Compl. ¶ ¶ 33-37. She seeks reinstatement of her LTD benefits retroactive to August 16, 2011, an order

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directing Hartford to continue paying her LTD benefits until the policy terminates or plaintiff reaches retirement age, declaratory relief, and an award of costs and attorney's fees. See id. ¶ 37. Hartford counterclaims for reimbursement of LTD benefits paid during months in which plaintiff retroactively received SSD benefits. See Answer ¶ ¶ 51-74. As to all claims, defendants have the better argument.


A. Plaintiff's ERISA Claim

The parties agree that, because plaintiff's insurance plan gave Hartford " full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Policy," HLI0049, the decision to terminate Brown's LTD benefits is subject to a " plainly deferential" standard of review. Mem. of P. & A. in Supp. of Pl.'s Mot. for Summ. J. as to Pl.'s Compl. & Def.'s Countercl. (" Pl.'s Mem." ) at 13-14 [Dkt. #29-1]; see also Def.'s Mem. at 14-15 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). Whether called an " arbitrary and capricious" or " abuse of discretion" standard, the focus of the inquiry is the same: reasonableness. See Moore v. CapitalCare, Inc., 461 F.3d 1, 11, 373 U.S. App. D.C. 188 (D.C. Cir. 2006); Costantino v. Wash. Post Multi-Option Benefits Plan, 404 F.Supp.2d 31, 38 & n.7 (D.D.C. 2005). Under this standard, a reviewing court may not overturn a reasonable decision to terminate benefits, even if it believes the opposite outcome also might have been reasonable. See Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1452, 293 U.S. App. D.C. 256 (D.C. Cir. 1992). An alleged conflict of interest is a factor to be considered in the reasonableness inquiry, but it does not change the standard of review or any other burden-of-proof, procedural, or evidentiary rule. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115-17, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).[10]

B. Defendant's Counterclaim

Hartford's counterclaim for repayment is subject to familiar summary judgment standards. The Court grants a motion for summary judgment when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the " initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). If Hartford meets this burden, I must grant summary judgment unless Brown can " designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted).


A. Plaintiff's ERISA Claim

The question before me is a straightforward one: Was Hartford's decision

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to terminate Brown's LTD benefits reasonable in light of the evidence and arguments before it at the time?[11] I find that it was.

First, it is clear from the record that Hartford took into account all of the medical evidence that plaintiff had provided, as well as all other appropriate non-medical evidence. Brown points to only one ailment--fibromyalgia--that Hartford allegedly failed to consider. See Pl.'s Mem at 16-18. Unsurprisingly, Hartford did not mention fibromyalgia when it first terminated plaintiff's benefits because she had not yet presented any medical evidence that she suffered from that condition. Compare HLI0143-47 (benefits terminated September 30, 2010), with HLI0293-95 (fibromyalgia first mentioned October 28, 2010). Brown provided medical records relating to fibromyalgia only after she appealed Hartford's termination of benefits, and Hartford explicitly addressed those records when it denied her appeal. See HLI0130 (listing " [a]dditional medical information provided by Dr. Mathur, Dr. Grader-Beck, [and] Dr. Kalyanam" as evidence considered).[12]

Hartford was not required to grant plaintiff's appeal and reinstate her benefits merely because she offered some evidence of a new condition. As a plan administrator with discretion under the terms of the agreement, Hartford was free to look beyond the treating physicians' conclusions and " choose among conflicting evidence" to reach any conclusion that was " reasonably supported by the administrative record." Mobley v. Cont'l Cas. Co., 405 F.Supp.2d 42, 47-48 (D.D.C. 2005) (citing Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 829, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003)); see also id. at 48 ( " [I]f the medical evidence is close and supports both conclusions, then judicial deference would support the plan administrator's decision to deny the plaintiff's benefits." ).

In this case, Hartford was faced with conflicting evidence. Weighing in plaintiff's favor was Dr. Grader-Beck's March 13, 2011 report, wherein the doctor concluded that plaintiff was " disabled from her fibromyalgia" based on a finding of " multiple tender points . . . consistent with fibromyalgia." HLI0297-98. Plaintiff also had a letter and a Disability Certificate from Dr. Kalyanam that said she could not return to work. See HLI0274-75. And plaintiff offered medical assessments forms signed by Drs. Mathur and Kalyanam, which stated that her physical abilities were dramatically limited by the fibromyalgia that had been previously diagnosed by another doctor. See HLI0254-59.

Upon closer scrutiny, however, these documents could reasonably be viewed as inconclusive at best. First, and most importantly, Dr. Grader-Beck's report does not say that plaintiff actually met the diagnostic criteria for fibromyalgia.[13] Instead,

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it jumps from a finding of " multiple tender points" to a conclusory statement that plaintiff is disabled. HLI0297-98. The report--which Dr. Grader-Beck did not dictate in the first instance--then ends with his arguably ambiguous note that he was " worried that [plaintiff] has developed fibromyalgia," suggesting some uncertainty about the diagnosis. HLI0298 (emphasis added). It does not contain any assessments of plaintiff's ability to perform tasks or function in the workplace. Compare HLI0296-98, with HLI0318-19.

Even assuming plaintiff suffered from fibromyalgia, it does not necessarily follow that she was disabled; rather, it was plaintiff's burden to substantiate her claim for benefits. See, e.g., O'Bryan v. Consol. Energy, Inc., 477 F.App'x 306, 308-09 (6th Cir. 2012); Tortora v. SBC Commc'ns, Inc., 446 F.App'x 335, 338-39 (2d Cir. 2011). Drs. Kalyanam's and Mathur's medical assessments provide superficial indicia of plaintiff's physical limitations but they appear to rely entirely on " patient's history" and Dr. Grader-Beck's recent " presumptive diagnosis of fibromyalgia." HLI0254-59. There is no indication that either doctor ever evaluated plaintiff or reached his own conclusion as to whether plaintiff had fibromyalgia. See id. Nor are there any test results or other objective findings to substantiate any of their conclusions. Less valuable still, Dr. Kalyanam's two-sentence letter and one-page form-certificate contain nothing even resembling a physical assessment, medical finding, or diagnosis. See HLI0274-75.[14]

There was additional evidence supporting Hartford's decision, as well. First, on April 29 and August 26, 2010, Dr. Grader-Beck reported that plaintiff's condition had improved dramatically, see HLI0322-24; HLI0318-19, to the point where an Employability Analysis Report showed that she was capable of meeting the demands of several occupations including histotechnologist, see HLI0308-14.[15] On March 13, 2011, Dr. Grader-Beck reported that Brown's sarcoidosis was in remission and that an MRI and pulmonary function test had turned up no abnormalities. See HLI0296-97. Three months later, a nerve conduction study showed that Brown had only a " very mild. . . neuropathy." HLI0271 (emphasis added). In addition, Hartford's surveillance showed that as early as November and December 2009, Brown was physically capable of a wide range of activities--walking, running, driving, carrying trash and shopping bags with one hand, preparing food, and caring for (even lifting and holding ) a child--all without signs of pain. See HLICIU0651-60. These observations took place just two and

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six weeks after Brown reported to Hartford that she was not receiving other income and " doesn't [d]o much of anything" other than bathe and " some reading." [16] HLI0103. Lastly, Hartford obtained an independent assessment by a reviewer, Dr. Chelsea Clinton, who--based on a review of the entire medical record [17] and after making repeated efforts to speak with several of Brown's care providers--concluded that the evidence did not support plaintiff's claim. See HLI0231. It was perfectly reasonable and permissible for Hartford to give significant weight to Dr. Clinton's opinion, despite the fact that she never personally examined plaintiff.[18]

I readily acknowledge that it was within Hartford's discretion to credit Dr. Grader-Beck's conclusory disability finding and the superficial assessments provided by Drs. Kalyanam and Mathur. But that does not mean it was unreasonable for Hartford to weigh the evidence differently and reach the opposite conclusion. Based on my review of everything that Hartford had in front of it, I am satisfied that its decision was " reasonably supported by the administrative record." Mobley, 405 F.Supp.2d at 48.

Finally, I must consider as a factor in my reasonableness analysis Hartford's conflicting interests as " a plan administrator [that] both evaluates claims for benefits and pays benefits claims." Glenn, 554 U.S. at 112. I find that this is a case in which the conflict is " less

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important (perhaps to the vanishing point)" because Hartford took " active steps to reduce potential bias and to promote accuracy," id. at 117, for instance, by setting up multiple levels of review by different individuals, see HLI0066; HLI0078-79, and by seeking input from a neutral third-party reviewer (Dr. Clinton) who had no personal stake in the outcome, see HLI0231.

Moreover, plaintiff provides " no evidence that Hartford has a history of biased claims administration," Smith v. FedEx Freight E., Inc., No. 08cv1905, 2010 WL 456779, at *6 (M.D. Pa. Feb. 1, 2010), or " that any alleged self-interested behavior actually affected" its decision in this case, see Wright v. Metro. Life Ins. Co., 618 F.Supp.2d 43, 58-59 (D.D.C. 2009) (internal quotation marks omitted); see also Becker v. Weinberg Grp., Inc. Pension Trust, 473 F.Supp.2d 48, 62 (D.D.C. 2007). To the contrary, it is undisputed that Hartford awarded plaintiff benefits in January 2009, see HLI0210-14; gave her ample opportunity to provide any new medical evidence as it came available, see, e.g., HLI0162-209; [19] reinstated her benefits after she failed to substantiate her disability in July 2010, see supra note 19; HLI0148-49; and even granted her additional time to perfect her appeal, see HLI0140 (extending deadline 45 days); HLI0276 (request for additional time); HLI0138 (letter indicating evidence accepted until July 21, 2011). None of these actions were in Hartford's interest, and they therefore provide strong indications that Hartford endeavored to administer the plan fairly. See Bendik v. Hartford Life Ins. Co., No. 03cv8138, 2010 WL 2730465, at *4-5 (S.D.N.Y. July 12, 2010).[20]

B. Defendant's Counterclaim

Finally, Brown does not contest Hartford's counterclaim or present any evidence contrary to Laurie Tubbs's affidavit. See supra note 1. Plaintiff asks only that her repayments be deducted from Hartford's future LTD benefit payments. But Hartford is not required to make further payments. Accordingly, plaintiff must reimburse Hartford $36,473.40 to offset her retroactive SSD payments.[21] See HLI0037-38; HLI0041.

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For the foregoing reasons, defendant's Motion for Summary Judgment [Dkt. #27] will be GRANTED, and plaintiff's Motion for Summary Judgment [Dkt. #29] will be DENIED. Judgment will be entered in favor of defendants on plaintiff's claims, as well as defendant's counterclaim in the amount of $36,473.40. An appropriate order shall accompany this Memorandum Opinion.


For the reasons set forth in the Memorandum Opinion entered this date, it is this 27th day of January, 2014, hereby

ORDERED that defendant's Motion for Summary Judgment [Dkt. #27] is GRANTED, and plaintiffs Motion for Summary Judgment [Dkt. #29] is DENIED; and it is further

ORDERED that judgment is entered in defendant's favor in the amount of $36,473.40.

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