Foglia v. Reliance Standard Life Insurance Company, No. 2:2017cv00097 - Document 36 (M.D. Fla. 2018)
Court Description: OPINION AND ORDER granting 25 Motion for summary judgment; denying 26 Motion for summary judgment; adopting and incorporating 33 Report and Recommendations. The Clerk shall enter judgment in favor of defendant and against plaintiff, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 9/11/2018. (RKR)
Download PDF
<![CDATA[
Foglia v. Reliance Standard Life Insurance Company Doc. 36 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CHRISTOPHER FOGLIA, Plaintiff, v. Case No: RELIANCE STANDARD INSURANCE COMPANY, 2:17-cv-97-FtM-99MRM LIFE Defendant. OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge’s Report and Recommendation (Doc. #33), filed July 24, 2018, recommending that defendant's Motion for Summary Judgment (Doc. #25) be granted, and plaintiff's Motion for Summary Judgment (Doc. #26) be denied. 1 Plaintiff filed Objections (Doc. #34) defendant on August 6, 2018, and filed a Response in Opposition (Doc. #35) on August 14, 2018. I. Defendant Reliance Standard Life Insurance Company (Reliance) issued a group long-term disability (LTD) policy to Realogy Group, LLC (Realogy), and plaintiff is a participant under the policy as an employee of Realogy. The LTD policy is governed by the Employee 1 Both motions were construed as motions for judgment on the record based on a later filed motion correcting the titles. (Doc. #33, p. 1, n.1.) Dockets.Justia.com Retirement Income Security Act (ERISA), and administered by Matrix Absence Management (Matrix). Plaintiff stopped working as of August 9, 2013, and became eligible for monthly payments as of February 9, 2014. (AR0232.) 2 Plaintiff last worked as the Vice President of Realogy until acute liver failure and pancreatitis secondary to his condition of HIV, and plaintiff was considered unable to work as of August 13, 2013 due to symptoms of spontaneous bleeding from his mouth and nose, difficulty clotting, uncontrollable bowel release, abdominal pain radiating to his back, vomiting, swollen legs disorientation, and exhaustion. the first 24 month benefit and feet, (AR1878.) period night sweats, The payments covered requiring plaintiff to be disabled from his “regular occupation.” (AR0256.) After that period, disability from plaintiff occupation.” is required to show “any (AR0257.) By letter dated March 31, 2016, Matrix notified plaintiff that he no longer satisfied the definition of total disability, and plaintiff’s claim of disability was denied. (AR0298, AR0301.) In October 2016, Reliance acknowledged counsel’s letter requesting review of the adverse benefit determination. (AR0305.) Upon review, Matrix notified plaintiff that he would be required to 2 The Court will reference documents in the administrative record as “AR” followed by the number in the bottom right corner of each page. (Doc. #18.) - 2 - undergo a Neuropsychological Evaluation, and review of the medical evidence by an independent physician through an external vendor. Additional updates followed. (AR0307, AR0309, AR0311, AR0313.) On February 2, 2017, after an independent review, the original decision to terminate LTD benefits was found appropriate because plaintiff failed to satisfy the policy’s definition of Total Disability from conditions. Any Occupation (AR0313, AR0314.) with regard to his physical Dr. Jeffrey B. Danzig, M.D., a board certified Internal Medicine physician and Dr. Alejandro J. Arias, Psy.D., a board certified in Neuropsychology conducted the independent evaluations. (AR0315.) Plaintiff’s Fully Favorable award by the Social Security Administration 3 was acknowledged, but “the receipt of Social Security benefits does not guarantee the issuance of LTD Reliance notified benefits, or plaintiff vice that versa.” the (AR0324-AR0325.) original decision to terminate LTD benefits by the Claims Department was appropriate. (AR1876.) II. Plaintiff argues that defendant violated ERISA’s no-deference review regulation, failed to give reasonable weight to plaintiff’s evidence, and failed to provide its vocational personnel with all relevant evidence. The standard of review was accurately set 3 The Notice of Decision was issued on January 4, 2017. (AR1850.) - 3 - forth by the Magistrate Judge, and the parties do not object to the applicable steps 4. (Doc. #33, p. 13.) The parties also do not object to the content of the medical records, or the diagnoses. The Magistrate Judge found that Reliance “clearly states in its letter” that it agrees with the independent assessments by Dr. Danzig and Dr. limitations. Arias concerning plaintiff’s restrictions and The Magistrate Judge found that the reference to medical staff by Reliance “is clearly tethered to Reliance’s review and consideration of the independent assessments.” The Magistrate Judge concluded that Reliance did not improperly afford deference to the initial adverse benefit determination. (Id., p. 17.) The Magistrate Judge considered the medical record in light of plaintiff’s argument that Reliance discredited plaintiff’s treating physician and its own experts in reaching its decision as to plaintiff’s ability to work. Plaintiff’s treating physician Dr. Duffy diagnosed plaintiff with HIV, Hepatitis C in remission, end-stage liver disease, secondary syphilis, dumping syndrome, encephalopathy with short-term memory loss, thrombocytopenia secondary to end-state liver disease, peripheral vascular disease, renal insufficiency, endocrinopathy with hypertestosteronism, GI bleed and sinusoid bleed, and severe lethargy. 4 (Id., p. 18.) Plaintiff objects to the Magistrate Judge’s decision that Reliance was not de novo wrong, but not the applicable law. (Doc. #34, p. 12.) - 4 - Another treating physician, Dr. Myers, found plaintiff’s liver disease was complicated by hepatic encephalopathy, which causes confusion and fatigue. to stop driving. As a result, Dr. Myers advised plaintiff Dr. Myers found plaintiff’s cirrhosis impaired his ability to work because it causes confusion and difficulty performing tasks requiring mental concentration. Dr. Myers also found plaintiff was subject to bleeding episodes. 19.) (Id., pp. 18- The Magistrate Judge noted that Reliance relied heavily on Dr. Danzig’s opinion who in turn reviewed the treating physicians’ records, and the entire medical claim file. The Magistrate Judge found that Reliance weighed the evidence and found Dr. Danzig’s opinions more persuasive, and there is no requirement to accord special weight to the opinions of the treating physicians. The Magistrate Judge found that Reliance was not de novo wrong in determining that plaintiff can perform sedentary work. (Id., pp. 19-20.) As to non-exertional limitations, the Magistrate Judge noted that Dr. Duffy found plaintiff unable to work due to encephalopathy with short-term memory loss and severe lethargy. plaintiff’s liver disease caused fatigue Dr. Myers found and his hepatic encephalopathy caused confusion and difficulty concentrating. Danzig found that plaintiff’s cirrhosis of the liver Dr. was a reasonable cause of fatigue and hepatic encephalopathy has been clinically shown to present with fatigue and cognitive issues. - 5 - Dr. Danzig recommended the fatigue could be compensated by limiting lifting, carrying, standing, and walking. Dr. Arias assessed plaintiff’s emotional and cognitive functioning finding plaintiff performed within an average range with no significant impairment. Dr. Arias completed a check box form indicating areas where plaintiff was not limited, and thus found no cognitive limitations. The Magistrate Judge found that Reliance relied on Dr. Arias’s conclusions, not the testing scores in making its determination. The Magistrate Judge found Reliance was not de novo wrong in determining that plaintiff could perform the sedentary occupations listed by Reliance. The Magistrate Judge found that Reliance gave proper weight to the Fully Administration. Favorable The decision of Magistrate the Judge Social also Security found the Administrative Law Judge’s decision was not dispositive of whether plaintiff satisfied the terms of the policy for no occupation. The Magistrate Judge found that social security cases apply a different standard, and rely on vocational experts that have no relevance in an ERISA case. The Magistrate Judge found Reliance was not de novo wrong in its consideration of the Social Security decision. The Magistrate Judge noted that it is uncontested that Ms. Vroman, who conducted the REA, did so without the benefit of the opinions of Dr. Danzig and Dr. Arias. - 6 - Ms. Vroman opined that plaintiff could perform the jobs of Vice President and Contract Administrator at the sedentary level, and the jobs of contract specialist, manager, vehicle leasing and representative, franchise at the light level. rental, and sales Plaintiff hired his own Vocational Consultant, Linda Hayes, who also conducted an analysis without the benefit of the opinions of Dr. Danzig and Dr. Arias. Ms. Hayes found that plaintiff’s prior work required a high level of cognitive functioning and fell within the sedentary exertional level. Ms. Hayes found that plaintiff’s issues with cognitive deficits, and memory and concentration issues would limit plaintiff from performing the jobs listed in the REA. The Magistrate Judge found that Reliance was entitled to consider but not rely on plaintiff’s vocational consultant because she did not have all the medical evidence, and Drs. Arias and Danzig’s opinions did not support her conclusion that plaintiff could not perform sedentary work. The Magistrate Judge found Reliance was not de novo wrong. The Magistrate Judge concluded that Reliance was not de novo wrong, but further proceeded to the second and third steps to determine if the decision was arbitrary and capricious. The parties agreed that the plan administrator had discretion in reviewing plaintiff’s claims, so the Magistrate Judge moved onto the issue of whether the decision was supported by reasonable grounds. The Magistrate Judge found that it was not unreasonable, - 7 - arbitrary, or capricious to give more weight to independent medical providers. Plaintiff argued a conflict of interest because of the high value of the LTD benefits per month, but the Magistrate Judge noted that a large amount of money alone is not enough. The Magistrate Judge found no bias by Reliance in its consideration of the Social Security decision, or the vocational information. The Magistrate Judge concluded that the decision by Reliance was reasonable, and it was not arbitrary and capricious. III. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations 636(b)(1)(C). to which objection is made.” 28 U.S.C. § See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews conclusions de novo, even in the absence of an objection. - 8 - legal See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). IV. A. Deference and the REA The Court agrees with the Magistrate Judge on the issue of whether Reliance improperly afforded deference to the initial adverse benefit determination. The paragraph at issue does not give explicit deference, but simply points out that independent assessment is consistent with the past findings of medical staff: In conclusion, we agree with Dr. Jeffrey Danzig and Dr. Alejandro Arias’ independent assessment of your client’s restrictions and limitations, as their opinion reflects the available medical information on file as well as the prior opinion of our Medical Staff who also opined your client was capable of performing a minimum of sedentary work. (AR1887.) Plaintiff also objects that an updated Residual Employability Analysis (REA) was not conducted, and therefore Reliance deferred to the initial adverse determination that relied on same. Reliance responds that the regulation 5 provides that appeal decision cannot give deference to the initial decision, but 5 On appeal of an adverse benefit determination, a plan is not deemed to provide a “reasonable opportunity for a full and fair review” unless the procedures “[p]rovide for a review that does not afford deference to the initial adverse benefit determination and that is conducted by an appropriate named fiduciary of the plan who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the subordinate of such individual.” 29 C.F.R. § 2560.5031(h)(3)(ii). - 9 - Reliance medical staff did not make the initial decision or author the initial decision. opinions. Rather, the medical staff provided medical Reliance further responds that a new REA was not required because it already identified sedentary occupations, and Reliance again concluded that plaintiff could perform full-time sedentary work. Plaintiff has not identified a legal basis for requiring a new REA. The objection is overruled. B. Dr. Arias Plaintiff objects that a conclusion of no impairment in cognitive functioning is contradicted by Dr. Arias’s own evidence, and Dr. Arias made a material misstatement as to plaintiff’s processing speed. Recommendation underlying Plaintiff disregarded Dr. Arias’ argues that “fundamental opinion” because Neuropsychological Report Evaluation and inconsistencies conclusions unreliable data are unreliable conclusions.” The the “based on (Doc. #34, p. 6.) (AR1864) includes subjective background information provided by plaintiff, and a list of all the medical records reviewed. (AR1864-AR1869.) Included in the record is a psychiatric evaluation performed on September 18, 2014, by Dr. Clark, with a diagnostic impression of “Cognitive disorder, not otherwise specified, Major depression, single episode with psychotic features. Axis II: Deferred. Axis III: See physical exam. Axis IV: Psychosocial environmental problems, unemployment and financial. Axis V Current GAF: 50. - 10 - Highest GAF in the past year: Unknown.” (AR1867.) Also included is a complete adult psychological evaluation conducted on November 12, 2014, by Dr. Vandenberg who administered the Wechsler Adult Intelligence Scale and Memory Scale – Fourth Edition. Dr. Vandenberg’s diagnoses were mood disorder not otherwise specified, cognitive disorder not otherwise specified, alcohol abuse in full remission. (AR1867-AR1868.) Another adult psychological evaluation was performed on June 10, 2015, by Dr. Chang. (AR1868.) The diagnoses were “Rule out Mild Neurocognitive disorder due to multiple etiologies, Other Specified Depressive disorder, and Generalized anxiety disorder, HIV positive, hepatitis, cirrhosis, pancreatitis, bradycardia, mitral prolapse, cardiac arrhythmia.” work progress cognitively notes intact, dated 20, was Arias found plaintiff 2016, indicating appropriate plaintiff verbalized understanding. Dr. mitral valve Dr. Arias also reviewed social July judgment regurgitation, to he was content, and (AR1869.) was cooperative and motivated throughout the evaluation, and displayed good eye contact. Arias found plaintiff’s speech and language skills Dr. were substantive and grammatical, his mood was euthymic, and his affect was appropriate to circumstances. Plaintiff denied all visual, tactile, hallucinations, olfactory, and auditory oriented to time, person, and place. - 11 - (AR1869.) and he was Dr. Arias found plaintiff fell in the average range for verbal comprehension, perceptual reasoning, Full Scale IQ, and working memory, but in the low average range for processing speed. Dr. Arias found plaintiff’s immediate auditory attention, new verbal learning, and immediate and delayed incidental nonverbal recall were average. simulation Plaintiff and was malingering also and evaluated performed for attempts well. at Plaintiff’s conceptual reasoning and nonverbal abstract reasoning were both low average. (AR1870.) Plaintiff’s verbal fluency, expressive vocabulary, fund of information, and mental arithmetic were all scored as average. anxiety. Dr. Arias found no significant depression or (AR1871.) Dr. Arias concluded that plaintiff had improvement in the intellectual capacity as conducted in 2014, and as of February 9, 2016, plaintiff’s neurocognitive complaints had not substantiated with objective and verifiable test data. been Dr. Arias found that plaintiff did not meet any DSM 5 diagnostic criteria, and there was no objective or variable test data to indicate that plaintiff could not perform full-time work without restrictions or limitations. (AR1872-AR1873.) Dr. Arias also checked off “not limited” for each of the functions on a form. The Court finds no conclusions of Dr. Arias. contradiction in (AR1874.) the testing and Although the processing speed was found to be low average, all other relevant test results reflected - 12 - average results. Therefore, concluding that plaintiff was not limited is supported by the test results even if the processing speed was stated incorrectly in the summary section. The objection is overruled. C. Residual Employability Analysis Plaintiff objects that the REA relies on three occupations with the higher “light exertional level” classification, and plaintiff can only perform the less demanding “sedentary duty” classification. Plaintiff objects that the REA was performed prior to the medical expert opinions issuing, and without being updated after the independent evaluations. The REA listed occupational alternatives based on plaintiff’s transferable skills to include two jobs at the sedentary exertion level (Vice President and Contract Administrator) and three jobs at the light exertion level (Contract Specialist, Manager, Vehicle Leasing (AR1550.) and Rental, and Sales Representative, Franchise). Also included is a “Match List” generated by the OASYS Job Match System listing the various occupations in the light and sedentary positions. (AR 1554.) On review of the REA as well as the independent opinions of Dr. Danzig and Dr. Arias, Reliance concluded that plaintiff could only perform at a sedentary level on a full-time consistent basis. (AR0323.) The Court agrees with the Magistrate Judge that it was the independent assessment of Dr. Danzig and Dr. Arias that led Reliance to conclude that plaintiff - 13 - could perform at the sedentary level containing options for light work. regardless of the REA The objection is overruled. D. Social Security Decision & Dr. Danzig Plaintiff consideration objects to the that Reliance Decision failed of the to Social Administration that plaintiff is totally disabled. give due Security Plaintiff argues that Reliance relied on Dr. Danzig’s opinion even though Dr. Danzig deferred on issues of neuropsychiatric impairment as beyond his specialty. Reliance acknowledged the Full Favorable award, but noted that the ALJ found (AR0324-AR0325.) plaintiff Reliance was noted capable that of it sedentary reached work. the same conclusion as to the exertional level 6, but also noted that the Social Security decision was not binding on Reliance and the “receipt of Social Security benefits does issuance of LTD benefits, or vice versa.” not guarantee (AR0325.) the Plaintiff acknowledges that the Social Security decision is not binding on a LTD case, and Reliance was entitled to find Dr. Danzig and Dr. Arias more persuasive. The objection is overruled. Dr. Danzig stated “[W]hether or not his cognitive issues are related to hepatic encephalopathy or to anxiety/depression is 6 The ALJ found that plaintiff had the residual functional capacity to perform sedentary work, but that he was unable to perform his past relevant work. (AR1856, AR1860.) - 14 - unclear and difficult to sort out. What if any restrictions [plaintiff] should have from a neuropsychiatric point of view is out of my area of expertise.” discount the condition Peer based Review on the (AR1812.) There is no reason to Report as to plaintiff’s deference as to any conditions that were covered by Dr. Arias. physical neuropsychiatric The objection is overruled. E. Conflict of Interest Plaintiff argues that Reliance’s decision was arbitrary and capricious as a matter of law because the sedentary occupations both require above average general learning and verbal ability and Dr. Arias found plaintiff was only average. Reliance ignored favorable evidence Plaintiff argues that from his own physicians, and unreasonably relied on consultants. treating Plaintiff argues that Reliance’s decision was unreasonable in light of its conflict of interest. Plaintiff argues that Reliance disregarded its own evidence, failed to give reasonable weight to plaintiff’s evidence and the Social Security Decision, and failed to provide its vocational specialist with all relevant medical evidence. The Magistrate Judge found that Reliance relied on Dr. Arias’s conclusion that there was no data supporting work restrictions, rather than the testing scores themselves. Finding no limitations, Reliance - 15 - weighed (Doc. #33, p. 22.) the evidence and concluded that plaintiff could work at a sedentary level. The objection is overruled. Despite plaintiff’s argument that a conflict of interest exists, there is nothing in the record to support such a finding. Even plaintiff recognizes that Reliance was not required to give greater weight to a treating physician, significance to the Social Security Decision. 13.) Reliance found that plaintiff’s or controlling (Doc. #34, pp. 8, Hepatitis C had been successfully treated with medication and is stable with no reported medication diagnosis side of HIV effects. is Reliance stable undetectable viral load. on found that medication plaintiff’s with a current Reliance noted that psychological and cardiac evaluations conducted in July 2016 were normal, and the physical examinations conducted in 2016 were normal. Reliance also considered plaintiff’s left wrist pain and left shoulder pain in concluding that the “medical records lack evidence to support that his ongoing complaints warrant a physical or psychiatric Total Disability (AR0319.) from Any Reliance Occupation rejected the beyond February conclusion of 9, 2016.” plaintiff’s vocational specialist as unsupported by the medical records and independent physician reviews. (AR0324.) Reliance considered the “totality of the information” in the claim file in determining that plaintiff was no longer eligible to receive further benefits. - 16 - Much of the remaining objections are comprised of legally unsupported disagreement with the Magistrate Judge. After a careful and complete review of the findings and recommendations, as well as the record in this case, the Court accepts the Report and Recommendation of the Magistrate Judge, and overrules the objections as set forth above. Accordingly, it is now ORDERED: 1. Plaintiff's Objections (Doc. #34) are overruled. 2. The Report and Recommendation (Doc. #33) is hereby adopted and the findings incorporated herein. 3. Defendant's Motion for Summary Judgment (Doc. #25) is granted. 4. Plaintiff's Motion for Summary Judgment (Doc. #26) is denied. 5. The Clerk shall enter judgment in favor of defendant and against plaintiff, terminate all deadlines and motions, and close the file. DONE and ORDERED at Fort Myers, Florida, this of September, 2018. Copies: All Parties of Record - 17 - 11th day
]]>
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.
