Full opinion text
ORDER RE: PLAINTIFF’S MOTION TO EXPAND ADMINISTRATIVE RECORD; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ERISA) COLLINS, District Judge. This case involves Plaintiffs claimed entitlement to benefits under a long-term disability benefits plan governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Three separate Motions came on regularly for a hearing before this Court on June 1, 2001:(1) Plaintiffs Motion to Augment and Expand the Record Under Review (“Motion to Expand”); (2) Plaintiffs Motion for Summary Judgment (“Plaintiffs MSJ”); and (3) Defendant’s Motion for Summary Judgment (“Defendant’s MSJ”). After consideration of the papers, the case file, and the parties’ oral arguments, and for the reasons indicated below, the Court hereby DENIES the Motion to Expand, GRANTS Defendant’s MSJ, and DENIES Plaintiffs MSJ. Therefore, the Court also DISMISSES Plaintiffs entire Complaint, with prejudice. I. PROCEDURAL HISTORY Plaintiff PATRICIA ALFORD (“Alford,” or “Plaintiff’) commenced this civil action by filing an initial Complaint on May 15, 2000. The Complaint names DCH FOUNDATION GROUP LONG-TERM DISABILITY PLAN and UNUM LIFE INSURANCE COMPANY OF AMERICA (“UNUM,” or “Defendant”) as the nominal Defendants. Only UNUM has ever appeared and defended in the action, however, and is by all accounts the sole operative Defendant. On January 31, 2001, the parties submitted, and the Court signed, a Stipulation and Order setting out a briefing and hearing schedule for expected motions to expand the record, and for summary judgment, and also selecting pre-trial and trial dates in this matter. Under the schedule set by the Stipulation and Order, on April 2, 2001 the parties filed the three instant Motions. The Motions were originally noticed for a hearing on April 30, 2001. Also on April 2, 2001, the Administrative Record (“AR”) in this case was lodged by Defendant. On April 16, 2001, the parties filed their oppositions to each of the three Motions (the “Expand Opposition,” the “PMSJ Opposition,” and the “DMSJ Opposition”). On April 23, 2001, they filed their replies (the “Expand Reply,” the “PMSJ Reply,” and the “DMSJ Reply”). Along with the moving and opposing papers, the parties also filed the requisite statements of uncontroverted facts, statements of genuine issues, etc. On April 20, 2001, the Court ordered additional briefing by the parties on the possible application of the “notice-prejudice” rule crafted by California courts to the facts of this case. See, e.g., UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 366-77, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999); Cisneros v. UNUM Life Ins. Co. of America, 134 F.3d 939, 944-47 (1998) (finding that California notice-prejudice rule, which holds that an insurer is required to prove actual prejudice as a result of a delayed notice of claim or submission of proof in order to deny benefits, is not preempted by ERISA and therefore applies with full force). The Court gave Defendant until April -30, 2001 to file a supplemental brief of no more than ten pages, and Plaintiff until May 7, 2001 to file a sur-reply of the same length. In view of the time required for this additional briefing, the Court also continued the hearing on the three already-pending Motions from April 30, 2001 to May 14, 2001. In its May 9, 2001 Minuté Order, the Court determined that the “notice-prejudice” rule does not apply to this case, given that the question here is not delay in initial notice of an ERISA claim. As stated in that Minute Order, this case will therefore be decided under standard principles applicable to review of Plan decision-making under ERISA. Accordingly, the Court decided to go forward on these three Motions. However, some time having been lost both the parties and the Court in briefing and considering the possible application of the “notice-prejudice” rule, the Court concluded it was necessary to order a short continuance in the hearing on the three instant Motions. The Court therefore moved the hearing by two days, to May 16, 2001. This proved to be an insufficient extension of time. Therefore, on May 14, 2001, the Court again continued the hearing, to May 31, 2001. The hearing was later moved by Stipulation and Order to June 1, 2001. II. FACTUAL BACKGROUND Most of the facts are undisputed in this case, and indeed most or all are contained in the AR lodged by Defendant. The Court therefore cites primarily to the AR as its evidentiary record. Where the facts, are in dispute, that is so indicated. Because the Court considers Defendant’s MSJ, the Court construes these facts in Plaintiffs favor. A. Plaintiff’s Employment and The Long-Term Disability Plan For instance, it is undisputed that, prior to suffering from the alleged disability which led to this action, Plaintiff was employed by Downey Community Hospital (“DCH,” or “DCH Foundation Hospital”), as a registered nurse. See AR 679; Statement of Uncontroverted Facts in support of Plaintiffs MSJ (“PMSJ UF”) ¶ 1; Defendant’s Response to Plaintiffs Statement of Uncontroverted Facts (“PMSJ UF Resp.”) ¶ 1. According to her initial claim forms, Plaintiff Alford was hired by DCH in 1989. See AR 679. She worked there up until the time of her disability claim in 1995, apparently primarily in the operating room. See, e.g., AR 362, AR 558. On May 1, 1993, a long-term disability insurance policy (No. 502337), purchased by DCH through UNUM, became effective and applicable to Plaintiff. See AR 257, 691, 679. Terms of the DCH Foundation Hospital Group Long-Term Disability Plan (the “Plan”) are set forth in the policy of insurance issued by UNUM. See AR 257-280. The policy documents grant UNUM discretionary authority, in making any benefits determination, both to determine eligibility and to construe the terms of the policy. See AR 262. For covered employees in Class 2 under the policy terms (a Class which apparently included Alford), the following definition applies: “Disability” and “disabled” mean that because of injury or sickness: 1. the insured cannot perform each of the material duties of [her] regular occupation; and 2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which [she] is reasonably fitted, taking into consideration training, education or experience, as well as prior earnings; or 3. the insured, while unable to perform all of the material duties of [her] regular occupation on a full-time basis, is: a. performing at least one of the material duties of [her] regular occupation or another occupation on a part-time or full-time basis; and b. earning currently at least 20% less per month than [her] indexed pre-disability earnings due to that same injury or sickness. AR 268. Furthermore, the policy also requires proof of disability, as well as timely proof that the disability is ongoing and being treated: When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period [180 days]. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued: 1. disability; and 2. regular attendance of a physician. The proof must be given upon request and at the insured’s expense. AR 274. Plaintiff filed a claim form under the terms of this policy on August 18,1995. See AR 679-682; PMSJ UF ¶2; PMSJ UF Resp. ¶2. The employer statement filed therewith listed her last day of work as being April 21, 1995. It also noted that Plaintiff changed to a part-time position in April, 1995 in lieu of lay-off. See AR 679-680. B. Plaintiff’s Medical Condition(s) Though details of Plaintiffs claimed disability are not fully described in any of the parties’ submissions, from descriptions in subsequent medical reports, and Plaintiffs own notes on the claim forms and elsewhere, a basic picture of her injuries and illnesses emerges. It appears that sometime in 1993, perhaps in early July, Plaintiff suffered a stroke. See AR 362; AR 681. She then began to have periods of lethargy, confusion, and disorientation. See id. It seems that these may have been a result of the stroke. See id. Plaintiff experienced severe headaches and episodes of numbness over the next two years or so. See id. Abnormalities identified as “[b]rain lesions” showed up on an MRI taken of Plaintiff. See AR 362; AR 683. At some point prior to May, 1995, Plaintiff also began having partial complex seizures and occasional grand mal seizures. See AR 362; AR 628; AR 683-684. Complicating treatment of her seizures was the fact that Plaintiff was also a Type I diabetic on an insulin pump. See AR 362. According to her treating physician in 1995, Dr. Andrew Charles (Neurologist), Plaintiffs diabetes made seizure control with medication a difficult proposition. See AR 684. Inevitable episodes of hypoglycemia experienced due to her diabetes also contributed to her periods of confusion and disorientation. See AR 362. In 1995, Plaintiff was under the care of Dr. David Berger (Endocrinologist) for her diabetes. See AR 362. His notes indicated that at that time her diabetes symptoms were relatively under control. See AR 647. Further complicating matters, however, Plaintiff also suffered from asthma and hypothyroidism. She was also a smoker (in 1995). See AR 362. As an apparent result of her diabetes, at that time Plaintiff also suffered from peripheral neuropathy (numbness in her extremities). See AR 363. Finally, Plaintiff was apparently also suffering from back and neck problems and pain, dating back to at least 1991, when she was reportedly involved in an automobile accident. See AR 363. She had difficulties with both her neck and lower back, and had a documented cervical disc herniation without neural compromise. See id. She also had a bilateral carpal tunnel release in October, 1994, although she seemed to have a complete recovery-after the procedure. See id. According to the report of UNUM’s on-site physician, based on his review of Plaintiffs medical files conducted in 1997, Plaintiff began having performance issues in her work as an operating room nurse at least by August, 1994, in the form of making errors, having difficulty staying awake, and/or exhibiting a very short attention span. See AR 362. This observation is confirmed by internal correspondence between Plaintiffs supervisors. See AR 399. It appears these problems came to a head in March or April of 1995. Effective April 3, 1995, she was apparently transferred from her post as an operating room nurse to an ostensibly less demanding (part-time) job in Home Health (traveling to patients’ homes to administer care). See AR 398. It appears she was offered this post as an alternative to being laid off. See AR 680. However, she reportedly continued to have some difficulty following instructions, was observed to have a very short attention span, and was described as having a tendency to literally get up and wander off. In addition to these and other problems, her peripheral neuropathy was said to interfere with her ability to take a pulse. See AR 398. C. Plaintiff’s Initial Claim(s) for Bene-fíts Based on these ongoing difficulties, Plaintiffs tenure in the Home Health department was relatively brief, lasting only about two weeks. Apparently, her last day of work was April 21, 1995. This is the date Plaintiff listed on her disability claim form(s). See AR 679; see also AR 398 (memorandum detailing a supervisor’s concerns). Plaintiff filed her UNUM claim on August 18, 1995. See AR 681-682. She was forty-five years old on the date she filed for UNUM disability benefits (DOB: October 22, 1949). See id. On August 29, 1995, to supplement her claim, Plaintiffs treating neurologist, Dr. Charles, completed a Physician’s Statement to accompany Plaintiffs claim that listed her primary “Symptoms” as consisting of “Episodic alteration in consciousness consistent with complex partial seizures.” AR 683. Dr. Charles also listed as a “secondary condition” Plaintiffs “Brittle diabetes mel-litus with frequent hypoglycemic episodes.” Id. Dr. Charles listed the date of onset for an inability to work as being June 1, 1995. He stated that he had first seen Plaintiff in June of 1994, had last seen her on August 25, 1995, and that she had regular visits with him every three months. See id. Dr. Charles listed the medications Plaintiff was taking as Tegre-tol and Insulin. See id. In support of his conclusion that Plaintiff was disabled, he stated that Plaintiff could not perform any function where loss of consciousness would be a risk to herself or others, nor could she perform any heavy lifting. He stated that the seizures continued despite medication, and that her diabetes made seizure control difficult. See AR 684. On September 1, 1995, UNUM acknowledged receipt of Plaintiffs claim for benefits. See AR 286. On September 8, 1995, UNUM sent a letter to Plaintiff, stating that it needed more detailed information about her restrictions and limitations, and a detailed description of the requirements of her occupation, in order to determine whether she met the definition of “disability” and “disabled” as given in the DCH Foundation Hospital policy (which was laid out in the letter). See AR 668. UNUM stated that it had requested documentation from DCH as to the physical requirements of Plaintiffs occupation, and that it was also contacting Dr. Berger and Dr. Charles to get medical information “necessary to continue the evaluation of your claim.” Id. The letter stated that the evaluation would be completed once this information was received, and Plaintiff was invited to help by encouraging her physicians to promptly supply the necessary responses. See id. By letter dated October 6, 1995, UNUM again indicated that the information thus far received was insufficient for it to agree to pay benefits. See AR 628. Though the letter acknowledged that records received from Dr. Berger indicated a seizure prior to May 26, 1995, UNUM noted that his treatment notes also reflected that Plaintiff had reportedly been doing well since, and that she was looking for work. “[Tjhere presently is no medical information in file to substantiate any restrictions and/or limitations other than your own subjective complaints.... we ask that you provide us with medical evidence to support your inability to perform each of the material duties of your occupation .... if we do not receive medical certification within 80 days of the date of this letter, we will have no alternative but to assume you are no longer claiming disability benefits ... [and] to deny further liability on your claim.” AR 629 (“October 6 Letter”). On May 18,1995, prior to having applied for disability benefits under the UNUM policy, Plaintiff had also applied for Social Security disability benefits. Her initial efforts on this claim were no more successful, as her claim for benefits based on inability to work as a result of “Diabetes” and “Brain Lesions” was denied, inter alia, on August 2, 1995, and again on November 9, 1995. See AR 631; AR 530. D. The First Denial of Plaintiff’s Claim During the thirty-day period given by the October 6 Letter for Plaintiff to respond to UNUM with additional information, phone calls by Plaintiff and her brother to UNUM representative Robert Castellón, Disability Benefit Specialist, resulted in extensions in the thirty-day response period, first to November 13, 1995, and then to November 22, 1995. See AR 625-627. Plaintiff saw Dr. Charles (neurologist) on November 1, 1995. On November 16, 1995, Dr. Charles submitted to UNUM a letter, dated November 1, 1995, in which Dr. Charles repeated many of the findings in the initial Physician’s Statement submitted along with the original claim forms, including: that Plaintiff was subject to complex partial seizures, and had recently had at least one focal motor seizure; that the cause of her seizures was not clear, but was most likely related to undiagnosed brain lesions (on MRI); and that her diabetes might contribute to the seizures, and made it difficult to control them with medication. See AR 623 (“November 1 Letter”). Following receipt of the November 1 Letter from Dr. Charles, the staff at UNUM conducted a review of her case, requested additional information and clarification from Dr. Charles, and also had Plaintiff fill out an Education and Employment History form, listing among other things the duties of her job at DCH (as a registered nurse working primarily in operating rooms). See AR 614-622. They also referred her file, including the assessments) of disability by Dr. Charles, to an occupational/vocational consultant, Alan Ey, CRC. See AR 612-613. ■ On January 18, 1996, UNUM representative Castellón sent another letter to Plaintiff, which referenced all the information received to that point by UNUM, including the notes previously received from Dr. Berger (which Castellón described as indicating that Plaintiff was doing better and was looking for work), the November 1 Letter from Dr. Charles, and the evaluation by the vocational consultant. See AR 609-610. The letter noted that Dr. Charles had stated in his November 1 Letter that Plaintiff was prevented “from performing any task which would be compromised by sudden losses of consciousness or awareness,” but stated that their vocational consultant believed that based on her restrictions and limitations and her background, “that [she] would be able to engage in [her] occupation as a Registered Nurse.” AR 610. The letter said no benefits were payable, and that UNUM was closing the file. Plaintiff was told to submit new information to Castellón, and/or make a written request for review within sixty days. See id. E. Plaintiff’s First Appeal On March 7, 1996, Plaintiffs brother (William Alford) wrote a letter to UNUM, contesting the decision to deny benefits. See AR 608. He said that “there may be more medical evidence for review,” and also noted that Plaintiff was continuing with her application for Social Security disability benefits. See id. The letter also requested that UNUM provide any documents “you feel support the denial of benefits and a complete copy of the vocational consultant’s evaluation ...” AR 608. In the interim, Plaintiff was seen by Dr. Jacob Rabinovich (Orthopaedic Surgeon). Dr. Rabinovich prepared a letter-report dated March 14, 1996. See AR 592-602. On May 1, 1996, Plaintiff forwarded a copy of Dr. Rabinovich’s report to UNUM. See AR 591; AR 576-590. The March 14, 1996 report by Dr. Rabi-novich was focused on the Plaintiffs complaints of continued pain to her neck and back (and of radiating pain down her left leg). See AR 592. Dr. Rabinovich did include a review of the medical records provided to him, which spanned from January 23,1991 to June 21,1994 (as well as a “normal” stress echocardiogram performed November 8, 1995), though they were clearly not all of the records for that period. The focus of this review was Plaintiffs neck and spine problems, though Dr. Rabinovich did also comment on her other problems (e.g., her treatments for diabetes, her neurological complaints, etc.). The report concluded that Plaintiff, based on the pain, and lack of mobility, in her neck and spine, was “unable to return to work in her prior job duties ...” AR 600. Dr. Rabinovich opined that this was not likely a pre-DCH disability, but was likely 50% a result of Plaintiffs “arduous job duties” at DCH, and 50% a result of two prior automobile accidents. See AR 600-601. At this point in the case, Plaintiffs claim was apparently taken over on behalf of UNUM by Nancy Doyle, a Senior Benefit Analyst. In her notes on a form headed with “ERISA REVIEW,” Doyle went through all of the various stages of the case, including the initial application, the “loss of consciousness” restrictions and limitations identified by Dr. Charles, the parallel Social Security application (and denial), the November 1 Letter from Dr. Charles, the vocational consultant (Ey) evaluation, the January 18, 1996 denial, and the appeal therefrom by Plaintiffs brother. Doyle’s notes also referred to the orthopaedic evaluation by Dr. Rabino-vich, but noted that it was “re neck & back problems not related to her disability] claim.” AR 575 (emphasis in original). Doyle referred the file to an on-site medical consultant for UNUM, Dr. Richard Herman, for a records review, and for comment on Plaintiffs reasonable restrictions and limitations. See AR 571. Dr. Herman reviewed Plaintiffs records on September 25, 1996, with the understanding that she was claiming disability from partial complex seizures and diabetes. However, he concluded that the records from Dr. Berger, the “short note” (the November 1 Letter) from Dr. Charles (which was apparently not accompanied by any medical records), and the report prepared by Dr. Rabinovich were “not complete enough for me to render an opinion regarding any impairment.” AR 570. He said he would need: additional records from Dr. Charles, including any test results; neurological records from a Dr. Randolph Shey; and also any neurosurgical records from Dr. Harley Deere (two of Plaintiffs prior physicians) See id. Due to this finding (or lack thereof),- as well as on other grounds, UNUM once again denied Plaintiffs claim. Nancy Doyle communicated this denial by letter and by phone on September 27, 1996. See AR 569 (Doyle notes on phone call); AR 564-566 (“September 27 Letter”). In the September 27 Letter, Doyle once again laid out the definition of “disability” and “disabled” given by the policy, and revisited the history of Plaintiffs claim. Noting the limitation in Dr. Charles’ August 29,1995 Physician’s Statement and November 1 Letter that Plaintiff could not work in any position where her potential loss of consciousness might pose a risk, Doyle pointed out that as per the vocational consultant’s recommendation it seemed Plaintiffs experience “would be suitable for ... transfer to nursing positions -within the registered nurse occupation which would not involve potential danger to patients” from loss of consciousness. AR 565. Doyle referenced the vocational consultant’s observation that Plaintiff might be able to work in “sedentary to light duty positions such as Physician’s Office Nurse, Home Health Nurse Supervisor, and Insurance Rehabilitation Nurse.” Id. Doyle explained this analysis: Our policies are designed to protect the’ insured worker from the inability to perform his or her occupation, not the individual requirements of the job or the specific requirements of the work place. Although you may not be able to return to your specific job with your previous employer, this does not preclude you from performing your occupation with a different employer in a different position which can be performed with your restrictions and limitations. Our determination of liability is not based on the availability of jobs, but on whether or not you are capable of returning to work in your own occupation. Id. Doyle implied this was the basis for the January 18,1996 denial. Doyle also indicated that UNUM’s on-site physician had concluded there was insufficient medical documentation to support impairments precluding Plaintiffs work capacity. As for Dr. Rabinovich’s report, Doyle noted that it did not refer to any abnormal testing performed after June, 1994, and did not otherwise support disability. See id. Doyle stated that there were no medical records supporting the claim for disability in the months prior to and following the date of disability in 1995, nor any documentation of a progressive worsening of Plaintiffs seizure condition prior to her last day of work April 21, 1995. See id. Doyle described the work restrictions placed by Dr. Rabinovich (no heavy lifting, or any repeated pushing, pulling, or repeated flexion of the spine) as “prophylactic,” and indicated that these would not preclude the “sedentary and light duty” positions that had been identified by the vocational consultant. See id. Based on these findings, Doyle concluded that Plaintiffs “file documentation, including the medical and vocational evidence, [did] not support that [Plaintiff was] precluded from performing the material duties of the above-referenced nursing positions within your regular occupation as a registered nurse at the time ... you stopped working as of 4/21/95. Therefore, it is our determination that your claim was appropriately denied on 1/18/96, and your claim remains closed.” Id. Along with this letter, Doyle provided a copy of the (Ey) vocational evaluation. This decision was subsequently upheld by the UNUM Quality Review department, and affirmed on October 28, 1996. See AR 561 (October 28, 1996 memorandum from Carlene Anderson, in Quality Review, to Al Hemond in Western Regional Benefits); see also AR 560, AR 562-563. This was apparently intended to be UNUM’s final action on Plaintiffs claim. F. Plaintiff’s Request for Further Review On December 3, 1996, Plaintiffs prior denial of Social Security disability benefits was overturned by ALJ Parke. The decision said that Plaintiff was entitled to benefits beginning on April 21, 1995. See AR 552. The ALJ relied on medical records from 1987 to 1995, as well as a smaller number of records from 1996. The latest records in the list of referenced exhibits were those of Dr. Berger, ostensibly including records up to October 30, 1996 (Exhibit 28). See AR 554. At this point, Plaintiff engaged an attorney to take over seeking benefits under the UNUM policy. On February 27, 1997, Plaintiffs counsel Lawrence Rohlfing sent a letter to UNUM contesting the “final” decision rendered on September 27, 1996. See AR 558-559. Rohlfing first referenced the ALJ decision to grant Social Security benefits, and promised to provide a copy of that decision. Rohlfing then went on to attack the substantive bases for UNUM’s decision to deny her benefits. He argued that the (Ey) vocational opinion did not state that Plaintiff would be able to work in what he identified as her “regular occupation as an operating room nurse.” AR 558. Rohlfing concluded that Plaintiff was entitled to benefits per the “regular occupation” definition of disability for the first twenty-four months, because she could not work as an operating room nurse. See id. He further concluded that Plaintiff would be entitled to benefits thereafter because even the occupations identified by the vocational consultant paid less than 80% of Plaintiff’s pre-disability earnings, so that Plaintiff would be able to qualify for the post-twenty-four month definition of disabled under the third prong thereof. See id. The 3 numbered paragraphs defining disability sets ¶ 1 as always required. In addition to an inability to perform the regular occupation, the person must have that inability and either the inability to engage in any gainful occupation or the inability to earn at least 80% of the pre-disability earnings. Your decision completely fails to discuss disability under the 80% provision of the policy. If your decision is that Patricia Alford could work at the jobs identified at the earnings level stated, and if she worked at 1 of those jobs, you would still owe LTD benefits.... Furthermore, Patricia Alford’s 24th month of disability entitlement will not pass until October of this year. [¶] These are the issues that would get litigated in the event of the filing and service of a complaint in the United States District Court.... AR 559. Subsequently, on March 13,1997, Rohlfing again wrote to UNUM (addressing the letter, as with the first, to Nancy Doyle), attaching, inter alia, the December 3, 1996 ALJ decision. See AR 546-556. On March 18, 1997, Doyle responded to Rohlfing by letter, with a brief acknowledgment of the recent correspondence. Though the letter was a bit ambiguous, it appeared to agree to a further review. See AR 557. A subsequent letter from Doyle to Rohlfing, dated April 9, 1997, referenced the February 27 and March 13, 1997 letters from Rohlfing, but stated “[ajfter further review we find that our previous decision to deny further benefits was correct and we are upholding [it].” AR 545. No reasoning was given. However, Doyle did point out that the ALJ decision forwarded by Rohlfing listed medical records not then contained in the claim file (Exhibits 14-16, 18, 19, 21, 22, 24, 26 and 27), and said that if Plaintiff submitted the records “within 30 days,” UNUM’s on-site physician would do a further review. See id. G. Review of Additional Medical Records On May 1, 1997, Rohlfing did apparently submit a “complete copy” of the ALJ “exhibit file on Ms. Alford’s Social Security case,” though the list of Exhibits fronting the voluminous submission attached to Rohlfing’s cover letter does not appear to match the Exhibit List to which Doyle referred in inquiring about the medical records. See AR 371 (cover letter); AR 372-373 (Exhibit List); AR 374-542 (records). The Exhibits omitted were those numbered 24-28 on the previous list. The records submitted included the procedural history of Plaintiff’s Social Security claim for benefits and various reports prepared for that purpose (Exhibits 1-10), questionnaires completed by Plaintiff for purposes of securing Social Security benefits (Exhibits 11-13), medical records from 1991 to 1995 (Exhibits 14-20), and a Consultative Psychiatric Evaluation Report prepared by Dr. Khang Nguyen on October 20, 1995 (Exhibit 21). Exhibit 22, a Physical Capacities Evaluation Form dated April 4, 1996, apparently completed by Dr. Charles, does not seem to be included in the AR, and the Court can only presume it was also omitted from the documents submitted by attorney Rohlfing. On July 21, 1997, Doyle responded by letter, acknowledging the receipt of “additional medical information in support of Ms. Alford’s re-appeal ...” AR 544. Doyle said UNUM had requested review by an on-site physician, a review which was expected to be completed within three to four weeks. See id. The record does indicate that the very same day, July 21, 1997, a “high priority” Medical Review Request was sent by/from Nancy Doyle, once again to Dr. Herman. See AR 370. Dr. Herman was pointed to his prior review on September 25, 1996, which, Doyle’s Request reminded him, “did not find sufficient medical documentation to support” disability. Id. In referring to the AL J decision on the Social Security benefits, Doyle’s Request stated that she found it “puzzling” because “the majority of records” on which it apparently relied “are related to ... carpal tunnel syndrome and prior [auto accidents].” Id. She also called the October 20, 1995 Psychiatric Evaluation by Dr. Nguyen “unremarkable.” Id. Doyle asked Dr. Herman to review his prior report, and the information submitted on May 1, 1997. Doyle noted that, “[vocationally, we do not argue that [Plaintiff] cannot return to work as a home health nurse, but as [a Registered Nurse] could do other [Registered Nurse] positions which would not involve direct patient care. Does the additional medical information change our prior medical assessment?” Id. On July 25, 1997, Dr. Herman performed the requested “re-review” of Plaintiffs file. See AR 362-364. Dr. Herman’s review first gave a medical history of Plaintiffs various conditions, including: her apparent stroke in 1993; her following periods of lethargy, confusion, and disorientation; her MRI abnormalities; her severe headaches and episodes of numbness; her 1995 onset of seizures; her Type I diabetes; her asthma; her hypothyroidism; her peripheral neuropathy; her back and neck problems (stemming from a 1991 auto accident); and her 1994 bilateral carpal tunnel release. See AR 362-363. Dr. Herman noted that Plaintiff began having performance problems at work in 1994, and her transfer to Home Health did not solve the problems. See AR 362. He observed that Dr. Charles, Plaintiffs neurologist, had put her on disability soon after (1995), and that Dr. Charles had stated that she should not work where loss of consciousness was a danger. See id. Dr. Herman noted that Dr. Charles had concluded that Plaintiffs seizures were difficult to control, in part because of her diabetes. Also, “Dr. Charles’s records describe recurrent intermittent episodes of confusion in spite of treatment with Tegre-tol.” AR 362. In April, 1995, Dr. Charles had apparently “restricted her from driving due to drowsiness secondary to medications.” Id. Referring to the October 20, 1995 Psychiatric Evaluation, Dr. Herman observed that Dr. Nguyen had also noted Plaintiffs history of seizures and memory impairment, and had discovered that Plaintiffs father suffered from Alzheimer’s Disease. However, Dr. Herman also noted that Dr. Nguyen had concluded there was no psychiatric illness and that Plaintiffs intellectual function was preserved. See AR 363-364. “This conclusion was based primarily on claimant’s ability to do proverbs and serial sevens but did not involve any detailed neuropsyche testing.” AR 364. On forms filled out for purposes of securing the Social Security benefit, Dr. Herman noted that both Plaintiff and her brother had described periods of blackouts and confusion “where claimant can not follow even simple instructions and has problems with concentration.” AR 364. H. Request(s) for Additional Information Though acknowledging these claims and diagnoses, Dr. Herman came to the ultimate conclusion that he could not yet render an opinion: Evaluation of this claimant is made difficult by the lack of medical documentation as to the severity of her impairment. If she is indeed having frequent periods of confusion, an inability to concentrate and memory loss then she would have no work capacity. If these are infrequent episodic problems related only to seizures and, in between, her intellectual functioning is intact then she may have some work capacity. The evaluation for Social Security by Dr. Nguyen seems rather superficial and does not really give us much information except that claimant does have times in which she intellectually functions well. However, two supervisors describe [a] confusion severe enough to make them worry about claimant’s safety which suggests a rather significant impairment. I will attempt to call or write to Dr. Charles to get additional information about any neuropsyche testing that may have been done or any potential treatment. I would also need to know the frequency and extent of the impairment. If claimant had work capacity from a cognitive perspective then [some] accommodations might have to be made for her neck and low back.... I have written a letter to Dr. Charles but will still try to reach him by telephone. Another option might be to call the endocrinologist if we do not get a response from Dr. Charles. AR 364 (signed and dated July 25, 1997). Dr. Herman did, it appears, send a letter to Dr. Charles, dated July 26, 1997, asking for “help in answering a few questions.” AR 367. The letter asked, for instance, whether Plaintiff had ever undergone any neuropsychological testing, or whether any was planned in the future. It also asked whether Dr. Charles felt that Plaintiffs periods of confusion were frequent and severe enough to prevent any work capacity, or whether she might be able to work in a less demanding nursing position. ' Finally, it asked about' Plaintiffs mental function between seizures (i.e., it stayed normal vs. she suffered a residual deficit), frequency of seizures and their type (i.e., partial complex vs. grand mal), whether Plaintiff was presently able to drive, and/or her chances for improvement. Dr. Herman urged Dr. Charles to call or write in response. See AR 367. On August 1, 1997, Rohlfing acknowledged and responded to Doyle’s July 21, 1997 letter, and thanked her for the response. See AR 543. He also requested that “[w]hen you have your on site physician review the records, I request the opportunity to provide issues and comments in writing.” Id. (citing 29 C.F.R. § 2560.503-1(g)(i)-(iii)). On October 29, 1997, Doyle (on behalf of UNUM) again wrote to Rohlfing (Plaintiffs counsel), indicating that there was a delay in the UNUM on-site physician’s review of the additional information sent in on May 1, 1997 precipitated by the on-site physician’s inability to get any response from Dr. Charles to his queries for clarification or additional information. See AR 365. To this October 29 letter, Doyle attached a copy of the letter sent by Dr. Herman to Dr. Charles, said that the letter had been sent after Dr. Herman was unsuccessful in raising Dr. Charles by telephone, and stated that “to date we have not received a response from Dr. Charles.” Id. Doyle asked if Rohlfing might be able to help secure a response from Dr. Charles, or if he could provide contact information for any other physician who might be able to answer questions raised by UNUM’s on-site physician. She also requested that Rohlfing provide documentation of the amount of monthly Social Security benefits that Plaintiff was receiving. See id. In closing, she said: “We would welcome the opportunity to reach a final determination regarding Ms. Alford’s re-appeal; however we do not have adequate medical information at this time.” Id. On December 9, 1997, Rohlfing responded to the October 29, 1997 letter from Doyle. He stated that he had personally written to Dr. Charles on October 29,1997, and asked if Dr. Herman had yet heard anything from him. He also enclosed a copy of the award letter from Social Security, indicating the benefit level. See AR 350. Finally, Rohlfing made the following assertions in this December 9, 1997 letter to Doyle, with regard to assessing Plaintiffs claim: I want to remind you of my request of August 1, 1997, to review and comment upon any medical documents on which you base any decision. Please recall that on February 25, 1997, we took [sic] position that Patricia Alford’s usual and customary work consisted of an operating room nurse. It seems fairly clear from information we have that Patricia Alford has [sic] entitlement to benefits through October 1997. With respect to ongoing benefits, I want to either state-mentize or depose Mr. Ey. I want to take that action before you make any final decision with respect to benefits [sic] October 1997. In order for me to properly ask Mr. Ey questions, I need to know exactly what residual functional capacity you believe Patricia Alford retains ... AR 350. Rohlfing concluded by saying that he looked forward to the resolution of Plaintiffs claim, and to “getting Patricia Alford back into pay status with UNUM.” AR 351 (with enclosures). I. Negotiations and Settlement Discussions Following this letter, Doyle and Rohlf-ing began engaging in more intensive discussions about Plaintiffs claim, a possible settlement thereof, and Plaintiffs disability status and appropriate benefits under the policy. In a phone call on December 17, 1997, it appears Doyle asked if Alford might be interested in settling the claim for a total of twenty-four months’ worth of benefits (“regular occupation” period), with Social Security offset but a minimum monthly benefit of $100.00 per month. See AR 348 (Doyle’s notes on phone call). Doyle also noted she told Rohlfing UNUM had yet to hear from Dr. Charles or from any other physician, and Rohlfing again stated that he had sent a letter to Dr. Charles on October 29, 1997. Finally, Doyle’s notes indicate that she asked Rohlfing what documentation he needed from her (as per his December 9, 1997 letter), and that Rohlfing eventually stated that he did not in fact need anything more from her. See id. On January 7, 1998 and again on February 8, 1998, Rohlfing sent letters to Doyle which, inter alia, acknowledged their recent phone conversation(s) about settlement and the contents of the claim file. See AR 332 (“January 7 Letter”); AR 326 (“February 3 Letter”). The January 7 Letter also attached Exhibit 19 from the Social Security claim file, which consisted of records from Dr. Charles between June 7, 1994 and August 24, 1995. In that letter, Rohlfing objected to and criticized the vocational consultant’s conclusions as to nursing jobs in which Plaintiff might be able to work despite her seizures, arguing that she had neither the experience nor the training to do some of the jobs he had identified, and that her condition(s) would preclude her from doing the others. In closing, the January 7 Letter said Plaintiff was considering the settlement offer. See AR. 333. The February 3 Letter followed up on an issue apparently first discussed by Rohlfing and Doyle in their December 17, 1997 telephone conversation: the number of hours per week Plaintiff was considered to have been working at the time that she went out on disability (thus, her earning potential on her “last day worked,” or “LDW”). In that section of the claim form(s) initially filed by Plaintiff in August, 1995 which were completed by her employer, DCH, Plaintiff was listed as having been employed for a regular work week of sixteen hours per week. See AR 679. Thus, it is apparent that as of December 17, 1997, Doyle was operating on the assumption that this would be the basis for calculation of benefits to replace pre-dis-ability wages. See AR 348. In the February 3 Letter, Rohlfing argued that the basis should instead be thirty-two hours per week, based on Plaintiffs employment status immediately prior to her last day of work on April 21,1995. He based this conclusion on employment records received from DCH, and attached copies of those records to the February 3 Letter to Doyle: The employee history form indicates that as of April 9, 1995, Patricia Alford changed to part-time status. This consisted of 32 hours per week at the same rate of pay, specifically $21.10 per hour. The [enclosed] personnel action form ... confirms part-time status change to 32 hours per week. The final personnel action form indicates discharge as of August 16, 1995, because of an inability to return from a medical leave of absence. Please add this documentation to the claim file. AR 326. Rohlfing concluded by noting that “[y]ou and I did discuss some sort of settlement. Obviously, the additional earnings and schedule for 32 hours per week makes a big difference in any potential settlement offer. Please advise me of your current posture.” Id. On February 16, 1998, Doyle apparently called and confirmed the thirty-two hour work week with the pertinent person at DCH. See AR 324 (Doyle’s notes on phone call). This seemed to signal acceptance on behalf of UNUM that any calculation of the payable benefits would be based on a thirty-two hour work week. Her notes also indicate that she had confirmed Plaintiffs “DOD” (date of disability) to be April 21, 1995, having also apparently cleared this up with DCH. See id. On February 17, 1998, Doyle and Rohlf-ing had another telephone conversation, in which Doyle, inter alia, indicated that UNUM was now willing to calculate Plaintiffs benefit based on a thirty-two hour work week. See AR 320-321 (Doyle’s notes on phone call). Using that basis, Doyle offered a new settlement figure of $11,244.48, which was twenty-four months of benefits minus Social Security offsets for those months, calculated based on a thirty-two hour work week. See id. Doyle and Rohlfing also apparently discussed the erstwhile Dr. Charles, from whom Doyle did not believe Dr. Herman, or anyone else with UNUM, had ever heard. Rohlfing was apparently surprised to hear this. Doyle explained that Dr. Herman was actually no longer working with UNUM, but that she had no indication that he had ever heard from Dr. Charles. Doyle explained again that Dr. Herman’s July 25, 1997 report, while noting that Plaintiffs complaints were serious enough to warrant comment and concern for safety from her supervisors at DCH, also noted that the medical records were not complete. However, based on the implications of that report, Doyle indicated that she would be nonetheless willing to settle Alford’s claim for the twenty-four month “regular occupation” period, for the amount described above. See id. On March 20,1998, Rohlfing again wrote to Doyle, to follow up on his two previous letters. “I am also under the impression that Dr. Charles has finally both spoken to and corresponded with Dr. Herman.” AR 319. Rohlfing asked Doyle to confirm or deny whether there had in fact between eommunieation(s) between the two physicians, and also to provide him with any result of those communications. “Please provide me with a copy of Dr. Herman’s report and analysis ...” Id. The letter also touched on other issues, such as a prior disability leave taken by Plaintiff from September 1993 to January 1994, due to hand surgery, as well as a proposed transfer to Home Health at that time that never went through. See id. As for references in Dr. Berger’s May, 1995 treatment notes to Plaintiff looking for work (see October 6 Letter), the letter emphasized that Plaintiffs entire search for work consisted of perusing a copy of “Nurse Week.” See id. Rohlfing also acknowledged the settlement discussions, but conceded that he had lost his notes thereon, and asked to be reminded of their status. See id. J. Final Settlement Offer and Final Denial . After sending a letter on April 3, 1998 acknowledging Rohlfing’s March 20, 1998 letter, and after attempting to call on April 13, 1998, Doyle sent Rohlfing a letter dated June 26, 1998. See AR 313-315 (the “June 26 Letter”). Along with the June 26 Letter, Doyle attached a copy of Dr. Herman’s July 25, 1997 review of Plaintiffs records. She also made clear that Dr. Herman had never heard from Dr. Charles, or from any other physician who might provide insight into Plaintiffs condition(s), despite UNUM’s efforts to enlist Plaintiffs help in securing this cooperation. See AR 213. Doyle acknowledged that along with Rohlfing’s January 7, 1998 letter, he had included records from Dr. Charles from 1994 and 1995, including an April 28, 1995 report (letter) from Dr. Charles to DCH indicating that Plaintiff should be disabled as a home health nurse for at least three months. See id. However, she noted that the most recent medical record UNUM had from Dr. Charles was his letter/report dated November 1, 1995. In that letter, Doyle observed, Dr. Charles stated that Plaintiffs condition was not continually disabling, but prevented her from performing any job where loss of consciousness would endanger safety. She noted that he also stated Plaintiff would remain disabled for one year. See id. Doyle also acknowledged that, as they had discussed on the phone, the personnel file documents submitted on February 3, 1998 supported a thirty-two hour work week for Plaintiff prior to her April 21, 1995 date of disability. See id. Therefore, Doyle indicated, UNUM had recalculated Plaintiffs payable benefit based thereon, so that it would now be a basic monthly benefit of $1,755.52 (or sixty percent of basic monthly earnings of $2,925.87 prior to disability), before the deduction for the Social Security benefits received. See id. Doyle emphasized in the June 26 Letter that UNUM did not have any “ongoing treatment records supporting Ms. Alford’s disability or to support that she has been under the regular attendance of a physician since Dr. Charles’ 11/1/95 report.” AR 314. Nonetheless, the June 26 Letter indicated that, based on Dr. Charles’ November 1, 1995 opinion and the necessarily incomplete review by Dr. Herman, UNUM was prepared to accept that Plaintiff was unable to perform her regular occupation “as a home health nurse” through November 1, 1996 (one year from the date of Dr. Charles’ opinion letter). See id. “Therefore, we are willing to pay Ms. Alford’s net benefits, after the social security offset, from 7/21/95, the end of the policy 90 day elimination period wherein no benefits are payable, through 11/1/96. Thereafter, we have no proof of [Plaintiffs] continuing disability.” Id. While sympathizing with the difficulty Rohlfing was experiencing in reaching Dr. Charles, Doyle stated that UNUM was simply unable to make an assessment of continuing disability without the submission of further medical information “from Dr. Charles or any other attending physician ... to certify the extent of Ms. Alford’s impairments due to her medical condition from 1995 through the present.” Id. While conceding that Plaintiff might remain disabled, Doyle stated that “we do not have sufficient medical documentation to assess her condition since 11/1/95.” Id. The letter then concluded with a “final” offer: If you do not wish to submit additional medical information to support Ms. Alford’s ongoing disability since 1995, we will agree to a settlement of 24 months of net benefits after the social security offset-[¶] In the event that Ms. Alford is not interested in our settlement offer, we will pay her benefits through 11/1/96. She will then need to submit ongoing medical records from the end of 1995 through the present in order that we may assess her ongoing medical condition to determine [entitlement to benefits]. AR 315. Doyle promised to contact Rohlf-ing soon, by phone. See id. The June 26 Letter was apparently transmitted by facsimile on June 29, 1998. On the cover sheet thereto, Doyle asked Rohlfing to call her to discuss its contents. She also indicated that she would soon be transferring out of the UNUM appeals section “and would like a response from you before the end of this week if possible.” AR 312. According to Doyle’s phone notes, Doyle and Rohlfing spoke that day (June 29, 1998) by telephone, and went through the terms of the June 26 Letter. Doyle explained that UNUM had allowed “ample time” for the submission of additional medical information from Dr. Charles or any other attending physician, and was now offering a choice: twenty-four months of benefits, or payment through November 1, 1996 with a chance for further payment upon additional documentation. Rohlfing promised to discuss the offer(s) with Plaintiff and respond. See AR 311. The next day, on June 30, 1998, Doyle’s phone notes reflect that Doyle and Rohlf-ing again communicated by telephone. See AR 309. In this conversation, Rohlf-ing evidently told Doyle that Plaintiff did not want to settle for twenty-four months of benefits. Rohlfing said that Plaintiff would be sending additional medical records supporting continued treatment for a disabling condition. The two also discussed delivery of the check for benefits through November 1,1996. See id. On July 2, 1998, Doyle sent what would be her last letter as a representative of UNUM in this case to Rohlfing, attached to which was apparently a check for benefits payable through November 1, 1996: As we discussed over the telephone, our review concludes that although we were unable to complete our medical investigation due to the lack of response from Ms. Alford’s physician, Dr. Charles, we will accept Dr. Charles’ opinion in his 11/1/95 report that Ms. Alford would continue to be disabled from her regular occupation as a registered nurse for another year due to ... loss of consciousness ... AR 306. The check covered July 21, 1995 to November 1,1996. See id. Doyle emphasized that UNUM would need additional medical records from November, 1995 onward “to determine whether Ms. Alford would be eligible for continuing benefits ...” AR 307. Doyle also pointed out that the policy required that a claimant submit proof of continued disability and regular attendance, and that this “proof must be given upon request and at the insured’s expense.” Id. (quoting the policy). Also on July 2, 1998, in a letter which apparently crossed in the mail with Doyle’s letter, Rohlfing wrote Doyle a formal rejection of the prior twenty-four month settlement offer. “She believes that her ongoing medical treatment will justify benefits beyond November 1996 and she therefore cannot in good conscience accept an offer to settle her claim for benefits ending July 21, 1997. Patricia Alford advises me that she has continued to receive treatment from Dr. Charles and Dr. Berger through April 1998. She started receiving treatment at Kaiser Perma-nente in May 1998.” AR 299. Rohlfing asked Doyle to send him a blank attending physician form, so that Plaintiffs then-current physician could complete it. He also submitted, with the letter, a “Long Form Medical Report” (questionnaire) completed by Dr. Berger on October 30, 1996. See AR 301-304. Rohlfing assumed this form ought to allow UNUM “to extend benefits for a reasonable period of time beyond October 30, 1996. Please advise me in this regard.” AR 299. K. The Final Re-Denial of Benefits On August 5, 1998, another UNUM Senior Benefit Analyst, Bonnie Gilfillan, responded to Rohlfing’s July 2, 1998 letter, saying that UNUM had “completed another review regarding the denial of benefits on your Long Term Disability claim.” AR 296 (“August 5 Letter”). Citing the policy definition of “disability” or “disabled,” and the proof-of-claim requirement in the policy, Gilfíllan described UNUM’s finding: A review of Ms. Alford’s claim file, which now includes the Long Form Medical Report completed by David Berger, M.D. on October 30, 1996 which you kindly provided, was completed. Dr. Berger’s form does not indicate when or if the claimant was examined prior to its completion. The form does note that the claimant started treating with Dr. Berger on July 17, 1990 but there is no reference to her date of last treatment. Furthermore, the form notes that Ms. Alford is being seen on a monthly basis by Dr. Berger which would indicate that there is a substantial amount of medical information which we have not yet been provided. [¶] Without these records we can not consider a subsequent period of disability beyond November 1, 1996. Should you wish to obtain and provide us with copies of such information, we would be more than happy to reconsider Ms. Alford’s claim for continued disability benefits beyond this period. Specifically, we would request that you furnish us with Dr. Berger’s office notes and treatment records documenting the severity of her conditions and evidencing that she is under regular care as required by the policy. Please forward any additional information to my attention at the above listed address within the next sixty days. [¶] At this time and after this further review, we find that our previous decision to terminate benefits as of November 1, 1996 was correct based on the medical information [in the file]. AR 297. This was, once again, apparently intended to be UNUM’s final decision, absent submission of any additional medical information. L. The Contested Additional Submission Up to this point, the communications between Plaintiffs counsel and the representatives of UNUM are a matter of the record, and the parties basically agree on all the preceding events. At this point, however, the parties substantially differ on what happened next. Plaintiffs counsel (Rohlfing) claims that on October 23, 1998, he sent a letter to Gilfillan/UNUM, to which were allegedly attached farther medical records on Plaintiffs condition. The letter and the records allegedly sent are attached as Exhibit 2 to Plaintiffs Motion to Expand, and it is these documents which Plaintiff seeks to add to the AR for the Court’s review. See Motion to Expand at 7-9. UNUM denies receiving either the letter or attached records in 1998. See Expand Opposition at 1. Indeed, UNUM asserts that Plaintiffs counsel did not submit additional documentation until April 20, 2000. See id. In support of his claim that the October 23, 1998 packet was both sent and received, Rohlfing points to a notation in the AR which is dated November 30, 1998. See AR 249. Though the computer-generated report to which Plaintiff refers is ambiguous, it appears that on that date Bonnie Gilfillan ordered Plaintiffs file from “FBO.” See id. There is a “DATE MAIL REC’D” field in the report into which 10/29/98 is entered. Further, there is an “X” in the space next to “RE-ERISA W/MEDICAL,” suggesting the “MAIL REC’D” pertained to ERISA re-review. Rohlfing’s name and address are listed, preceded by a “VERY IMPORTANT” reminder: “IF THE REQUEST IS FOR A RE-ERISA AND THE MAIL HAS BEEN SENT FROM AN ATTORNEY, PLEASE INDICATE THE ATTY ADDRESS BELOW SO THE ACK LETTER CAN BE SENT TO THE ATTORNEY INSTEAD OF THE CLAIMANT!!!” Id. Rohlfing argues that this notation indicates that Gilfillan/UNUM received his October 23, 1998 letter (and attached medical records) on October 29, 1998, prompting Gilfillan to order Plaintiffs file again. See Motion to Expand at 9. Furthermore, Rohlfing argues that another notation in the AR indicates that “UNUM intended to conduct a quality review as of December 3, 1998.” Id. For this supposition, Rohlfing points to another computer-generated report, dated December 3, 1998, in which Karen Pience, of Disability Benefits (UNUM), sent/re-sent a request for Plaintiffs file. See AR 250. The report states: “this file is currently in Quality Review. Check with Bonnie Gilfillan.” Id. Plaintiffs counsel claims that this shows that the October 23,1998 correspondence and records initiated a process of quality review. Defendant disputes this interpretation of these notations, claiming instead that a quality review followed the August 5,1998 decision. Plaintiffs counsel insists that as a result of this review, on January 14, 1999, “UNUM made an internal but undisclosed decision to uphold the prior determination.” Motion to Expand at 9. In support of this conclusion, Rohlfing points to an internal UNUM memorandum dated January 14, 1999 (Geoff Crain to Laura Bick-ford) with an “X” in the box for “This file has been (X) Upheld,” and with text stating: “We have completed our handling of the attached file, and are now returning the file to your office for further handling.” AR 248. Defendant UNUM disputes that any such quality review indicates the receipt of the alleged October 23, 1998 correspondence. Rather, UNUM contends that the notation identified by Plaintiff, as well as another computer-generated report on the file generated by Geoffrey Crain on January 14, 1999 (AR 305), simply “doeument[ ] the return of Alford’s file from Quality Review where the last decision regarding her claim for benefits was made in August 1998. No additional records were received by UNUM until April 2000.” Defendant’s Response to Plaintiffs Statement of Additional Material Facts ¶ 22. The report generated by Geoffrey Crain on January 14, 1999 (AR 305) shows the last date of action on Plaintiffs claim as being August 5,1998, the date on which Gilfillan sent the “final” denial letter. L. Final Correspondence on the Claim Whether or not these additional records were sent and received in October, 1998 is the only real factual dispute. For instance, the parties again agree that following this (alleged) submission of the October 23, 1998 letter, and attached 1998 medical records, the next communication between anyone acting on behalf of Plaintiff, and any UNUM representative, was not until March 17, 2000. On that date, Plaintiffs counsel (Rohlfing) wrote a letter addressed to Gilfillan on behalf of UNUM, inquiring about the status of Plaintiffs claim: You last wrote to me on August 5, 1998. At that time, you indicated that UNUM would not pay benefits beyond November 1, 1996. That letter did not specify whether Patricia Alford had additional appeal rights ... I sent additional records to you on October 23, 1998 ... I did not receive a response. Please advise if UNUM considers the August 5, 1998, denial final and not subject to further appeal. AR 294. In this letter, Rohlfing made no attempt to explain the lapse of almost seventeen months since his alleged October 23,1998 letter. On A