Raithaus v. UNUM Life Insurance (335 F. Supp. 2d 1098, 2004)

ORDER GRANTING PLAINTIFF’S MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

KAY, District Judge.

BACKGROUND

Plaintiff Lawrence' Raithaus, M.D. (“Plaintiff’ or “Dr. Raithaus”) filed this action under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B) (“ERISA”) against Defendant UNUM Life Insurance Company of America (“Defendant” or “UNUM”). The Complaint claims that Defendant wrongfully denied Plaintiffs long-term disability benefits. The parties have cross-moved for summary judgment as to Plaintiffs claim for disability benefits. Plaintiff has also filed a motion to strike a surveillance videotape (U/A 1257) from the relevant administrative record or in the alternative to supplement the record with a declaration that addresses the videotape.

I. Factual History

The following facts have been culled from the parties’ briefs and/or the administrative record.

A. Plaintiffs Employment at Kauai Medical Center

Plaintiff became certified in family practice in 1979 but has practiced as a urologist since he was certified as such in 1981. (U/A 835). Starting in May 1996, Plaintiff worked as a urologist for the Kauai Medical Center (“KMC”). During the time of his employment with KMC, Plaintiff was the only urologist on the island of Kauai.

On August 26, 2000, after more than a year of warnings regarding charting deficiencies, illegible notes, disorganization, and other forms of unprofessional conduct, KMC’s Executive Committee informed Plaintiff by letter that they had decided to terminate his employment, pending his appeal of the termination. On August 30, 2000, one day prior to his injury, Dr. Lee Evslin, CEO of KMC, issued a letter to Plaintiff indicating that he was suspended and would be terminated unless he agreed in writing to comply with 21 new conditions for his continued employment. (U/A 298-303). By letters dated September 5 and 6, 2000, KMC informed Plaintiff that due to his refusal to comply with substance abuse testing, KMC’s Executive and Quality Assurance Committees had voted to rescind the August 30, 2000 letter and were recommending Plaintiffs termination. (U/A 311, 312). On or around September 8, 2000, Plaintiff received notice that he had been terminated from his position at KMC and hád the right to appeal the decision. (U/A 316).

At the-time he stopped working, Plaintiff was earning $16,677 per month. Plaintiffs compensation included membership in UNUM’s long-term disability insurance plan (the “Plan”). The UNUM policy covered 60%, up to $10,000 per month, of Plaintiffs income if he became disabled under the Plan. Plaintiff also had an individual disability policy with New England Financial (“NEF”) that covered him for an additional $1,500 per month if he became disabled. Plaintiff has claimed and the record evidence indicates that the NEF individual policy has the same “regular occupation” language as the UNUM group policy at issue in this case. After filing suit against NEF for denial of his claim, Plaintiff and NEF agreed to a settlement. (Plaintiffs Concise Statement in Opposition to Defendant’s Motion for Summary Judgment, ¶ 10 (citing Lawrence R. Raithaus, M.D. v. New England Mutual Life Insurance Company, CV 02-100, U.S.D.C. District of Hawaii, Gillmor, J.)).

B. Relevant Plan Provisions

For physician-participants, the Plan defines “disability” as follows:

You are disabled when UNUM determines that:

-you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and

-you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury....

LIMITED means what you cannot or are unable to do.

MATERIAL AND SUBSTANTIAL DUTIES means duties that:

-are normally required for the performance of your regular occupation; and -cannot be reasonably omitted or modified.

REGULAR OCCUPATION means the occupation you are routinely performing when your disability begins.

(U/A 209)(emphasis in the original).

When the policy was sold to KMC, an UNUM representative wrote a letter “Re: Kauai Medical Group — ‘Specialty Definition for Doctors’,” explaining the policy as follows:

If a heart surgeon changed his occupation to a general practitioner due to a disability and the inability to continue surgical procedures, subsequent to policy onset, this individual would no longer be performing the duties of his previous occupation....

Even if a contract does not have a specialty definition, a surgeon can still receive benefits if they are now performing the duties of a general practitioner, this is because we pay benefits not based on the title of an occupation but on the material duties of an occupation. In your example, a heart surgeon was no longer able to perform surgery and therefore moved to a general practitioner non-surgieal position. With this change in duties, the individual also experienced an income drop of $150,000 originally to $75,000 under the general practitioner position.

We would pay a benefit in this example because there was an income loss due to the inability to perform the duties of the surgical occupation. We consider a heart surgeon and a general practitioner to be separate occupations and the salary and the job duties are also different. The specialty definition would not make a difference in this case.

(U/A 1046)(emphasis added).

Regarding how long UNUM will continue to send payments to a claimant, the Plan states the following:

We will stop sending you payments and your claim will end on the earliest of the following:

Physicians, CEO, Vice Presidents and Mid Level Providers

-when you are able to work in your regular occupation on a part-time basis but you choose not to;

-the end of the maximum period of payment;

-the date you are no longer disabled under the terms of the plan;

-the date your disability earnings exceed the amount allowable under the plan; or

-the date you die....

PART-TIME BASIS means the ability to work and earn between 20% and 80% of your indexed monthly earnings.

(U/A 218) (emphasis in the original).

C. Plaintiff’s Medical Condition

Plaintiff has a long history of back problems including degenerative disc disease throughout his lower back and he has undergone two lower back surgeries.

On August 31, 2000, while performing surgery, Plaintiff sustained what he claims was a disabling lower back injury. Defendant disputes the seriousness of the alleged injury Plaintiff sustained, and argues that Plaintiff is not “disabled” under the Plan. Plaintiff had an emergency room physician treat him on September 1, 2000 and obtained pain medication from another doctor. Due to the injury, Plaintiff did not return to work immediately. During the week following his injury, Plaintiff was formally suspended and then terminated from his position at KMC, pursuant to the written warnings of termination he had received just prior to his injury.

D. Initial Review and Denial of Plaintiff’s Claim

In November 2000, UNUM received Plaintiffs initial claim for long-term disability benefits. (U/A 661-662). On the claim form Plaintiff stated that his occupation was “Urological Surgeon.” Plaintiff indicated that he was unable to work due to “low back pain with radiation to right leg.”

UNUM began paying benefits to Plaintiff “under a Reservation of Rights” in November 2000. See First Amended Complaint, p. 6, ¶¶ 27; Answer to First Amended Complaint, p. 6, ¶ 28. Plaintiff claims that Defendant ceased paying these benefits in April 2001, but Defendant denies this allegation. See First Amended Complaint, p. 6, ¶¶ 29; Answer to First Amended Complaint, p. 7, ¶ BO.

UNUM obtained a January 8, 2001 Diagnostic Imaging report stating that there was “very little change” between Plaintiffs May 11, 2000 MRI (pre-injury) and his September 7, 2000 MRI (post injury). (U/A 439-40).

On March 5, 2001 UNUM Senior Customer Care Specialist Annie Paik received Plaintiffs personnel file from KMC. (U/A 252). From the file, “UNUM also learned of work-related information that further called into question Plaintiffs disability.... Interestingly, Plaintiff was notified of his imminent termination both five days and one day prior to the alleged onset of his disability on August 31, 2000. KMC officially terminated Plaintiff as an employee on or about September 8, 2000.” (Defendant’s Concise Statement in Support of its Motion for Summary Judgment, ¶ 9, citing U/A 286, 288-290, 294-295, 298-304, 515, 661-662, and 316).

On March 20, 2001, UNUM Field Representative Ed Ruiz interviewed Plaintiff. (U/[ A XXXX-XXXX ]). According to Mr. Ruiz’ report “80 percent of Dr. Raithaus’ duties consisted of treating patients in the clinic and conducting hospital consultations” while “[t]he other 20 percent of Dr. Rai-thaus’ duties involved the performance of surgery....” (U/A 1174).

On March 10, 2001, Dr. Leonard Cupo conducted an independent medical evaluation (“IME”) of Plaintiff. Dr. Cupo’s April 13, 2001 report included the following:

The employee has a long history of low back problems dating back to 1978. By his report, he has had two surgical procedures... he reported residual right lower extremity pain, which he managed on his own with rest, medication and a home exercise program including swimming. He developed low back pain in January 2000... The employee attributed his low back pain to prolonged standing while doing surgery as a physician/urologist for Kauai Medical Clinic. An MRI scan.. .was done on 5/11/00, which showed multiple-level degenerative disk and joint disease of the lumbo-sacral spine. It would be important to review these previous medical records in order to more clearly define the employee’s pre-8/31/00 injury state....

Based on the employee’s history and the medical records available for review, it is my medical opinion that the employee aggravated his preexisting degenerative disk and joint disease of the lumbrosa-cral spine on 8/31/00, as previously described. The level most severely involved with degenerative disk and joint disease is the L4-5 level. This is also the same level at which the employee had two surgical procedures performed in the past.... The fact that electro-diagnostic studies did not show acute denervation suggests that the findings are chronic and predated the 8/31/00 injury. The fact that the MRI scan of the lumbosacral spine of 9/7/00 is unchanged from that done on 5/11/00 is also reassuring and indicates that no new major structural damage has occurred ....

Despite the absence of objectively definable changes in the employee’s condition following the 8/31/00 injury, the employee’s subjective symptoms have escalated. He has received appropriately conservative treatment to date, and he has achieved at least partial improvement of his low back pain....

With regard to work, the employee is not currently fit to perform surgery due to the requirement of prolonged standing and leaning.... While completing further treatment, the employee may return to work in a limited-duty capacity with the following restrictions: no sitting or standing greater than 30 minutes consecutively without allowing a five-minute positional break; no squatting; no bending greater than four times per hour; no lifting greater than 10 lbs. These limitations are consistent with what the employee stated he could do and demonstrated during examination without significantly worsening his low back pain. I anticipate that the injury of 8/31/00 will turn out to be a temporary aggravation of the employee’s preexisting low back condition. He will require a formal permanent partial disability evaluation in the future, once he completes further treatment.

(U/A 797-99).

Dr. Dwight James Lin conducted a second IME on April 18, 2001. His June 2001 report provides the following:

Prior [to Plaintiffs August, 2000 injury] L.R¡ was working full time, full duty as a Urologist on Kauai. He reports that ‘once or twice a week’ after performing ‘extended procedures’ in the operating room, he would experience transient ex-acerbations in his low back pain that could be managed with ibuprofen and local heat. Typically by the following day, he would ‘wake up the next day, and feel okay after some stretching ex-ereises’;symptoms would spontaneously taper off and resolve ‘over the following day or two.’ ... From a functional standpoint, L.R. reports that ‘My lifestyle was unaffected by my back...’ and that he was able to perform urological procedures in the O.R. by avoiding heavy lifting, taking stretch breaks, and repositioning himself frequently.... While he did not exercise regularly, he was able to swim, play tennis once a month and occasionally ski. He was able to sit or drive for prolonged periods of time as long as he could ‘take a stretch and walk a little.’...

Based upon my findings during the history, physical examination, and records review, Mr. Raithaus’ symptoms are consistent, although there may be some symptom magnification. While I do not believe that he is able to continue a physically demanding_Urology practice as the only such specialist (covering the call-schedule single-handedly) on Kauai, he should have been (and continues to be) able to return to some type of modified or light duty, even if only on a part time basis....

Given that Mr. Raithaus’ clinical condition is stable (i.e., there is no evidence of acute denervation or bony instability,) had I been the treating physician, I would have already initiated the following:

a) Recommended that Mr. Raithaus increase his activities as tolerated

b) proactive physical therapy regimen, transition to work simulation and conditioning, and a functional capacity evaluation delineating his physical limitations (for a final impairment rating) and case closure....

It is not medically necessary for Mr. Raithaus to be completely off work....

Whether he will ever have complete resolution of his condition or impairment is unlikely, although he should be able to return to some type of gainful employment as a Physician....

Based on my evaluation, I recommend that Mr. Raithaus avoid activities that require him to stand in a fixed or awkward position, heavy lifting >15-20 lbs, or repetitive bending/lifting/twisting at the waist.

Mr. Raithaus did say that in the past he had worked as a Family Practitioner, and when I suggested the possibility of returning to it as a specialty, he was amenable and open to it from the standpoint that such a specialty would not be as physically demanding as that of a Urologist who spends a significant amount of time performing interventional procedures in the O.R. Mr. Raithaus was concerned, however, about how much retraining he would require to practice any other type of medicine other than Urology at this late stage of his medical career....

Mr. Raithaus has a fair to poor prognosis for return to employment based upon his 9 month hiatus from work thus far....

Emphasis must be placed upon objective goals... By focusing upon such goals, Mr. Raithaus’ treating physician can then focus upon what Mr. Raithaus is capable of, rather than subjective complaints of pain and a perpetual off-work status.

(U/[ A XXXX-XXXX ]).

On August 9, 2001, UNUM informed Plaintiff that it was inclined to deny his initial claim for benefits but would not issue a final decision until NEF issued its final decision regarding Plaintiffs individual policy. UNUM indicated that benefits would likely be denied because: [1] Dr. Lin suggested the possibility of “symptom magnification”; [2] the various IMEs opined that Plaintiff could return to a modified work schedule; [3] as opposed to Plaintiffs coverage under his individual policy with NEF, under the UNUM Plan, Plaintiffs “regular occupation” was a general practice physician, not as a urologist or specialist; and [4] Plaintiffs medical limitations did not prevent him from practicing as a general or family practitioner. (U/A 1064-65).

Sometime between August 25 and August 28, 2001, John Clancy, an UNUM Rehabilitation Consultant, referred Plaintiffs case to Genex Company for a labor market survey assessing Plaintiffs ability to obtain appropriate work given his medical restrictions and professional abilities. (U/A 983-1000). The Executive Summary regarding non-surgical urology positions in Hawaii provided, in relevant part, the following: “Over sixty employers were contacted across Urology and Fertility Clinics that provided similar responses indicating non-surgical urological positions did not exist.” (U/A 993) (emphasis added). In Los Angeles, “[a]ll reported that the position of Urologist, non-surgical did not exist.” (U/A 989) (emphasis added). The Genex survey also revealed that Dr. Rai-thaus might be considered for a General Practice/Medical Clinic Physician position. (U/A 986-87). Full-time general practice positions in Hawaii and Los Angeles earn between $6933.33 and $10,400 per month. (U/A 983).

On August 29, 30, and 31, 2001, NEF authorized video surveillance of Plaintiff in order to determine his physical capabilities. (U/A 1257); (See also September 12, 2001 report on surveillance, U/A 912-943). In the video, Plaintiff can be seen bending, bicycle riding, lifting his bicycle in and out of his car, swimming, diving under waves, and body surfing in significant wave action, and pulling his son on a boogie board through water and over sand.

On September 25, 2001, Plaintiff sent a letter to Dr. Lee “Bill” Evslin, the CEO of KMC, asking to be re-hired at half or three quarters time. (U/A 837).

On October 11, 2001, NEF issued a letter to Plaintiff updating him on the status of his claim. (U/A 945-951). This letter contains a breakdown of the number of surgical versus non-surgical procedures Plaintiff performed in 1999 and 2000. In the almost two (2) years preceding his injury, Plaintiff performed an average of 57 surgeries per month, which constituted approximately 32% of his total billing. (U/A 945-46).

NEF claimed that its analysis revealed that “a much larger percentage of [Plaintiffs] earnings and [Plaintiffs] duties performed were involved in the non-surgical aspect of [Plaintiffs] occupation.” (U/A 946). This letter also refers to comments made by Plaintiff indicating that he spent approximately 20% of his time performing surgery. (U/A 946-947). Finally, the letter states that Plaintiffs medical condition seemed to be improving by his own account and that NEF had “observed [Plaintiff] frequently engaging in activities inconsistent with [his] claimed impairment.” (U/A 947). Finally, NEF recited the various work-performance warnings Plaintiff had received while employed by KMC, his suspension and eventual termination. (U/A 947-949). NEF concluded that:

“After a careful review of the available medical records, independent medical examination, billing codes, and independent assessment .of your activities, we do not believe there is satisfactory proof that your condition, as reported, continues to render you completely incapable of working in the duties you described as being 80% office based urology.” (U/A 950)(em-phasis added).

On November 5, 2001, UNUM issued a final denial of Plaintiffs initial claim. (U/A 909-911). This decision came approximately one year after Plaintiffs initial claim. UNUM provided the following reasons for the denial: [1] Plaintiff is “capable of working 80% office based urology”; [2] NEF had “obtained information showing [Plaintiffs] activities are inconsistent” with his alleged medical condition (the NEF letter indicated that this “information” was obtained through some form of surveillance. See U/A 947); and therefore [3] Plaintiff is not disabled from the material and substantial duties of his occupation. The November 5, 2001 letter informs Plaintiff of his right to appeal the denial. (U/A 909).

Also on. November 5, 2001,. Plaintiffs attorney faxed to UNUM a November 1, 2001 letter from Dr. William Yarbrough describing, the nature of urology practice:

urology is both a' medical specialty and a surgical specialty.’ It differs from other specialties in that it is not exclusively one or the other. In cardiac care, for example, cardiologists manage the medical and diagnostic aspects. They do not do any ‘cutting.’ Any ‘cutting’ falls in the realm of cardiac surgeons. Urologists, on the other hand, are expected to do both. When a patient is referred to a urologist, it is the expectation of the referring physician and patient that all necessary medical and surgical urologic care will be provided by the urologist.

(U/A 3).

Plaintiff also provided UNUM the November 7, 2001 letter from his treating physician, Doctor Gilbert Hager (U/A 829-BO). Dr. Hager diagnosed Plaintiff with various “lumbosacral” conditions and recommended the following:

Dr. Raithaus cannot meet the physical requirements of a physician in the operating room, because of his medical conditions. He cannot tolerate the leaning over that is required of a doctor in the operating room, or the prolonged standing, which also is required. He cannot wear a leaded apron for any length of time as is often required in urological surgery....

I have reviewed the Dictionary of Occupational Titles put out by the Department of Labor for urologists and find that Dr. Raithaus is not able to perform the material duties set forth for urologists in that dictionary. Specifically, he can no longer perform surgery as indicated above, nor can he do the standing for prolonged periods of time, or bending that is often required of the urologist during the physical examination....

The conditions that Dr. Raithaus suffers from are now permanent, and it is my opinion that he will never be able to return to perform the material duties of an urologist because of his medical condition ....

Given the condition of Dr. Raithaus’ back, he would not be able to perform as a family practice physician. He is limited to the extent he is able to return to work at all, to perform jobs that were strictly sedentary.

At the present time, Dr. Raithaus remains unable to return to any full-time work and will never be able to return to work as an urologist, or in any job that is not purely sedentary.

(U/A 829-30).

On November 8, 2001, UNUM wrote to Plaintiffs attorney and reiterated that Plaintiffs claim was denied because “he is qualified to perform the material and substantial duties of a general practice physician, and that his current restrictions and limitations would not preclude him from performing the material and substantial duties of that occupation.” UNUM emphasized that “the policy under which Dr. Raithaus was covered as of his last day worked [sic] did not have a specialty definition for physicians. The policy insures physicians for the practice of medicine. It does not insure them for their sub-specialty or discipline.” (U/A 905-906). Relying on “Salary.com” the November 8 UNUM letter also indicated that as a Family Practice Physician practicing in Hawaii or Los Angeles, Plaintiff could earn about 80% of his previous income as a urologist. (U/A 905-906).

E. Appeal and Final Denial of Plaintiff’s Claim

On January 3, 2002, Plaintiff appealed the denial of his claim. (U/A 23-30). In his appeal, Plaintiff raised the following arguments:

[1] NEF, UNUM’s “sister company,” insured Plaintiff as a “urologist” and their policy was practically a verbatim copy of UNUM’s policy. UNUM did not make any effort to distinguish the two policies, therefore Plaintiff should be covered as a urologist, not as a general practice physician, under UNUM’s policy. In support of this argument, Plaintiff also cited UNUM’s 1995 letter to KMC explaining that a heart surgeon need not be classified as a specialist to receive benefits if s/he cannot perform one of the material and substantial duties of the job;

[2] The various IME’s and UNUM’s own assessment clearly indicate that Plaintiff cannot perform surgery, which is a material and substantial duty of a urologist;

[3] There are no jobs available in Hawaii or Los Angeles for a non-surgical urologist; and

[4] Plaintiff could not earn 80% of his monthly indexed earnings as a general practice physician in Hawaii.

On January 15, 2002, UNUM informed Plaintiffs attorney that his appeal had been filed and that UNUM would “attempt to make a determination on your claim within 60 days after receipt of this appeal, unless extenuating circumstances require additional time to make that determination. In the event of extenuating circumstances, we will make a determination no later than 120 days from receipt of the appeal.” (U/A 32 and 849).

On January 18, 2002, Plaintiffs attorney faxed to UNUM the report of orthopedic surgeon John Smith, indicating that Plaintiff may require back surgery. (U/A 33-34). On January 29, 2002, Plaintiffs attorney faxed to UNUM Dr. Cupo’s IME, Dr. Endicott’s December 2001 workers’ compensation “Permanent Impairment/Disability Rating” report, a vocation evaluation report by Plaintiffs workers compensation adjustor John Mullen & Company, and Dr. Terry Smith’s medical report recommending that Plaintiff undergo surgery. (U/A 37-92).

Notably, the vocation evaluation report obtained a “representative job description” of “Urologist” from the Department of Labor’s Dictionary of Occupation Titles (“DOT”). (U/A 71). The DOT definition of “Urologist” is as follows:

Diagnoses and treats diseases and disorders of geniourinary organs and tract: Examines, patient, using x-ray machine, fluoroscope, and other equipment to aid in determining nature and extent of disorder or injury. Treats patient, using diathermy machine, catheter, eysto-scope, radium emanation tube, and similar equipment. Performs surgery, as indicated. Prescribes and administers urinary antiseptics to combat infection.

(U/A 81) (emphasis added).

Dr. Endicott reported the following:

He is pleasant, cooperative and in no acute distress. He is oriented, alert and communicates well. He does not display excessive pain behaviors....

5/11/00 and 9/7/00 MRI scans of the lumbar spine-please see radiology report. There did not appear to be any significant change between the two studies....

Causality for work-related aggravation of his underlying significant degenerative disc and joint disease appears directly related to the 8/31/00 injury.... In regard to stability, he has reached maximal medical improvement from a conservative treatment standpoint for rating purposes as of this date....

It appears that approximately 75% of his impairment is related to the pre-existing condition, and 25% is related to the permanent aggravation. It does appear that there was an increase in permanent impairment based on this injury; There are subjective and objective findings that would indicate a worsening of his preinjury condition....

Even if his regular urology duties were available, he would not be able to do his regular work duties. He would not be able to perform surgery based on his examination today, because of the aggravation of symptoms due to prolonged standing, leaning, and the need to help lift and adjust patients after they are under anesthesia.... He would be precluded from performing surgery because of the need to consistently and repeatedly go beyond his physical capacity, putting himself and the patient at risk for problems.

(U/A 804-818).

On February 6, 2002, Plaintiff submitted to UNUM the January 27, 2002 “Vocational Opinion” by Carol Forsloff, a Forensic Rehabilitationist/Life Care Planner, indicating that:

Dr. Raithaus’ income potential has been substantially decreased by his physical limitations. He will earn at best little more than 50% of his previous income as a urologist, since he will be at entry level in general or family medicine, if he is able to continue practice at all as a physician. With experience he will still earn considerably less than his reported basic monthly earnings at the date of disability of $16,667/month or $200,004. At entry level in family medicine he would earn $74,315 to an average of $117,101. Even at the average wage his earnings would be 58% of his previous income using the Department of Labor, State of Hawaii, statistics. At the entry level, which corresponds to the mean of the first third of the wage distribution, he would earn 37% of his previous wage. This has been verified by direct contact with employers as well as by a practicing physician in general medicine/family practice in the State of Hawaii.

(U/A 772).

UNUM’s records indicate that on February 7, 2002, UNUM Senior Customer Care Specialist Carolyn Brooks left a telephone message for Plaintiffs attorney asking whether he intended to submit additional medical information or whether it was appropriate to refer Plaintiffs claim back to UNUM’s medical department at that time. (U/A 787).

On February 19 2002, UNUM in-house Doctor Gritton wrote: “Claimant has multiple physicians who feel he can’t return to operative urology practice. I am in agreement with this.” (U/A 117).

On March 4, 2002, in response to Ms. Forsloffs report indicating that at most, Plaintiff would make 58% of his previous income, John Clancy of UNUM completed an Occupational Report Addendum. Referring back to the September 2001 labor market survey conducted by Genex and a February 2002 letter written by Plaintiffs attorney, Mr. Clancy concluded that “while there is a professional difference of opinion based on the individual surveyed, it is clear that the labor market survey clearly established that an individual with Dr. Raithaus’ specific restrictions and limitations could be considered for employment based on his education, training, and experience.” (U/A 126).

On March 22, 2002, UNUM Senior Customer Care Specialist Carolyn Brooks wrote a letter to Plaintiffs attorney informing him that among UNUM’s Medical Department, “It was agreed that Dr. Rai-thaus is unable to perform surgeries.” Regardless, “the labor market survey clearly established that an individual with Dr. Raithaus’ specific restrictions and limitations could be considered for employment based on his education, training, and experience.... This appeal is being processed in accordance with our standard procedures. The Quality Performance Support Unit will make a final determination within timeframes set forth in the applicable ERISA regulations.” (U/A 129-30).

On March 28, 2002 UNUM denied Plaintiffs appeal for the following reasons:

By your client’s own admission and the data obtained from your client’s former employer, it appears that your client’s non-surgical duties and earnings made up 80-90% of his duties and earnings. Based on all the information compiled, it appears that had your client not been terminated from his employment due to performance issues, around the time in which his claim began, he would have had the capacity to return to work in his occupation, at the very least on a part-time basis,

and

In addition, it appears that the level of functional capacity as reported by your client and demonstrated for Independent Medical Examiners and Field Investigators appear to be inconsistent. For example... documented observation that was completed August 2001 indicates that [Plaintiff] was not wearing a back brace as he was biking, swimming, body surfing, pulling his 7 year old son on a boogie board in the sand with his left arm, and bending and twisting. These activities were also noted to have been done with no apparent pain or difficulties.

(U/A 134).

In support of this second reason, UNUM cited Dr. Lin’s reference to possible “symptom magnification,” Plaintiffs interview with an UNUM Field Investigator at which Plaintiff used a cane and was limping, and the video surveillance conducted in August 2001 showing Plaintiff bending, biking, swimming, body surfing, and pulling his son on a boogie board, without the aid of a cane, or back brace and with “no apparent pain or difficulties.” (U/A 134).

In an April 3, 2002 letter to UNUM, Plaintiffs attorney informed UNUM that Plaintiff had begun part-time work at Ha-lele'a Family Medicine LTD. on March 4, 2002. (U/A 137-138). Plaintiffs attorney described Plaintiffs new work as “purely sedentary work as a non-surgeon on a part-time basis with no lifting, bending or awkward positions” and requested that UNUM and/or NEF pay partial disability benefits to Plaintiff. (U/A 137). UNUM denied Plaintiffs request for partial disability benefits on the basis that Plaintiff was no longer eligible for benefit payments because they had ended approximately one year prior. (U/A 141).

On December 6, 2002, Plaintiffs attorney requested in writing that UNUM provide Plaintiff with a copy of the surveillance video. (Plaintiffs Motion to Strike, Ex. 2). This letter was not admitted into the administrative record. On December 17, 2002, UNUM Lead Appeals Specialist, Joann Cho, sent a letter to Plaintiffs attorney indicating that UNUM was not legally required to release the video because it was not “pertinent” to their decision. Instead, UNUM had provided Plaintiff with a copy of the surveillance report, found at U/A 912-943. (Plaintiffs Motion to Strike, Ex. 3). This letter is also not in the administrative record. On January 9, 2003, Plaintiff sent a letter of complaint to the United States Department of Labor to report UNUM’s allegedly wrongful withholding of the surveillance video. (Plaintiffs Motion to Strike, Ex. 4). At some point after Plaintiff sent his letter of complaint, UNUM released the video to Plaintiff.

II. Procedural History

Plaintiff filed the Complaint and demand for jury trial on April 22, 2003. A first amended complaint was filed on May 12, 2008. Defendant answered on August 14, 2003.

On February 23, 2004, the Court granted Defendant’s motion to dismiss Plaintiffs state law claims because they are preempted by ERISA.

Each party filed a motion for summary judgment on April 14, 2004. The parties filed their oppositions to the other’s motion for summary judgment on May 27, 2004. Replies were filed on June 3, 2004.

On May 26, 2004, the Court ordered that Plaintiffs motion to strike a surveillance video from the administrative record or in the alternative to supplement the record with the declaration of Plaintiffs treating physician be scheduled for hearing on June 14, 2004, with the motions for summary judgment. Pursuant to that Order, Defendant filed its Opposition to the Motion to Strike on May 27, 2004. Plaintiff filed his Reply on June 3, 2004.

SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c).

“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir.2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir.1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmov-ing party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may do so with affirmative evidence or by “‘showing’ — that is pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). So, too, the Court’s role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51, 106 S.Ct. 2505.

Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

DISCUSSION

I. Standard of Review of Benefíts Denial

The parties disagree as to what standard of review the Court should apply in deciding the motions for summary judgment and Plaintiffs motion to strike.

Challenges to an ERISA plan’s denial of benefits is reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When an insurance plan grants such discretion to the administrator of the plan, the reviewing court normally applies an “abuse of discretion” standard. See Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 n. 2 (9th Cir.1994).

In this case, there is no dispute that UNUM has discretion to interpret the terms of the Plan, which provides, in relevant part: “When making a benefit determination under the policy, UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy.” (U/A 204). However, Plaintiff argues that [1] UNUM’s failure to timely comply with procedural requirements and [2] UNUM’s conflict of interest, separately require the Court to review UNUM’s denial of Plaintiffs claim for benefits de novo in deciding the instant motions.

A. Whether appeal was “deemed denied” thereby requiring de novo review

Plaintiff argues that UNUM’s documented failure to meet regulatory and Plan deadlines for determining both his initial claim for benefits and his appeal of UNUM’s denial of benefits, requires the Court to review Plaintiffs claim for benefits de novo in deciding the motion to strike and the summary judgment motions.

The Plan provides, in relevant part:

In the event that your claim is denied, either in full or in part, UNUM will notify you in writing within 90 days after your claim form was filed. Under special circumstances, UNUM is allowed an additional period of not more than 90 days (180 days in total) within which to notify you of its decision. If such an extension is required, you will receive a written notice from UNUM indicating the reason for the delay and the date you may expect a final decision,

and

A final decision on the review [of an appealed denial] shall be made not later than 60 days following receipt of the written request for review. If special circumstances require an extension of time for processing, you will be notified of the reasons for the extension, and a decision shall be made not later than 120 days following receipt of the request for review.

(U/A 233).

The applicable federal regulation additionally provides:

If notice of the denial of a claim is not furnished [within the 90-day period plus 90 more days in the case of special circumstances], the claim shall be deemed denied and the claimant shall be permitted to proceed to the review stage described in paragraph (g) of this section,

and

The decision on review shall be furnished to the claimant within the [60-day period plus 60 more days in the case of special circumstances]. If the decision on review is not furnished within such time, the claim shall be deemed denied on review.

29 C.F.R. § 2560.503—1(e)(2) and (h)(4)(2000) (emphasis added).

In Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Protection Plan, 349 F.3d 1098 (9th Cir.2003), the claim administrator did not respond to the plaintiffs November 16, 1998 letter appealing the denial of benefits until March 15, 1999. Id. at 1103. At that time, one day before the 120-day appeal period was to expire, the claim administrator asked for certain medical records and left the appeal open indefinitely. Id. at 1104. The plan administrator formally denied the claim after the claimant filed suit in federal court. Id. at 1102. The court held that despite the claims administrator’s letter and indication that further medical documents would be considered, the claim “was deemed denied on March 16,” 120 days from the administrator’s receipt of the appeal letter. Id.

The Jebian court reasoned that “when a decision is, under the Plan, necessarily the mechanical result of a time expiration rather than an exercise of discretion” courts should not defer to that decision. Id. at 1105. This is because “where, according to plan and regulatory language, a claim is ‘deemed... denied’ on review after the expiration of a given time period, there is no opportunity for the exercise of discretion and the denial is usually reviewed de novo.” Id. at 1103. However, ‘inconsequential violations of the deadlines. . .would not entitle the claimant to de novo review.. .in the context of an ongoing, good faith exchange of information between the administrator and the claimant.’ Id. at 1107 (quoting Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir.2003)). “Accordingly, while our holding regarding the appropriate standard of review on ‘deemed denied’ claims may be tempered in cases where a delinquent plan is nonetheless in substantial compliance with prescribed procedures, this is not such a case” Id.

In mid-January 2002, UNUM sent a letter to Plaintiff acknowledging receipt of his appeal and indicating the possibility of a decision past the initial 60 day period. (U/A 32 and 849). The letter did not specify any extenuating circumstances for a possible late decision as required by the Plan. According to regulation and the terms of the Plan, UNUM’s decision on Plaintiffs appeal was due by March 15, 2002 and if extenuating circumstances existed, by May 15, 2002. (U/A 233). UNUM denied Plaintiffs appeal on March 28, 2002, 13 days past the initial deadline. Throughout its briefs, Defendant suggests that the delay was due to Plaintiffs late submission of various documents. However, as detailed in the factual history above, Plaintiff did not submit any documents in support of his appeal after February 6, 2002. Defendant argues that a telephone message left by an UNUM representative on February 7, 2002 asking if Plaintiff intended to submit any more documentation, shows that UNUM was attempting to comply with the deadlines and to keep Plaintiff informed of its progress. (U/A 787).

Despite UNUM’s failure to timely deny Plaintiffs appeal, there is no evidence that the denial of Plaintiffs claim was a “mechanical result” of the deadlines. Rather, this failure seems “inconsequential” given that UNUM and Plaintiffs attorney were in regular contact during the appeal process and that the appeal denial was issued well before the absolute 120-day period under the Plan.

Thus, the Court finds that UNUM “substantially complied” with procedural requirements and Plaintiffs claim was not “deemed denied.” Therefore, de novo review is not warranted on the singular basis that UNUM failed to timely deny Plaintiffs appeal.

B. Whether UNUM has a conflict of interest warranting de novo review

Plaintiff argues that the Court should review Plaintiffs claim for benefits de novo because UNUM’s conflict of interest affected its administration of his claim.

The Ninth Circuit has held that the abuse of discretion standard of review may be “heightened” if a plan administrator has a conflict of interest. Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). An apparent conflict of interest exists where the defendant is both the insurer and the administrator of the insurance pol icy. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 (9th Cir.1999). However, “the presence of a conflict does not automatically remove the deference ordinarily accord[ed] to ERISA administrators who are authorized by the plan to interpret a plan’s provisions.” Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 797 (9th Cir.1997).

In order to obtain de novo review based on the Defendant’s conflict of interest, the Plaintiff must “establish a serious conflict” by presenting “material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary obligations to the beneficiary.” Atwood, 45 F.3d at 1323. In deciding whether there was a conflict of interest, the Court can look outside the administrative record. See Tremain v. Bell Industries, Inc., 196 F.3d 970, 977 (9th Cir.1999).

Case law suggests a number of factors that may constitute “material, probative evidence” of a serious conflict of interest:

[1] the plan administrator provides inconsistent reasons for its denial, See Lang, 125 F.3d at 799;

[2] the plan administrator relies on an improper disability definition in denying the claim for benefits. (Tremain v. Bell Industries, Inc., 196 F.3d 970, 977 (9th Cir.1999));

[3] the plan administrator determines a material fact for which there is no supporting evidence, See Id.;

[4] the plan administrator fails to follow plan procedures. See Friedrich, 181 F.3d 1105, 1110 (9th Cir.1999);

[5] the plan administrator fails to provide requested information, See Cherene v. First American Financial Corp. Long-Term Disability Plan, 303 F.Supp.2d 1030, 1037 (N.D.Cal.2004);

[6] the plan administrator fails to provide a full and fair review of the claim and its denial, See Friedrich, 181 F.3d at 1110;

[7] Taken as a whole, the record suggests that the administrator acted as an adversary determined to deny the Plaintiffs claim for benefits. See Id.

Plaintiffs who present material, probative evidence of an actual conflict of interest will establish a rebuttable presumption that the conflict of interest affected the Plan administrator’s decision to deny benefits. The burden will then shift to the Defendant to show that the conflict of interest did not affect the denial of benefits. Bendixen, 185 F.3d at 943 (citing Atwood, 45 F.3d at 1322). If Defendant cannot rebut the presumption, then de novo review is warranted.

Here, there is no question that an apparent conflict of interest exists because UNUM is both the insurer and administrator of Plaintiffs benefits. (UNUM Answer to First Amended Complaint at ¶ 8, p. 3, Exhibit 2). Thus, the Court must determine whether Plaintiff has presented material, probative evidence establishing a serious conflict of interest and if so, whether UNUM can rebut the presumption by showing that the conflict did not affect their decision-making in Plaintiffs case.

1. Material, Probative Evidence of a Serious Conñict of Interest

Plaintiff sets forth the following as evidence of a serious conflict of interest affecting UNUM’s decision-making in his case:

[1] UNUM’s reasons for denying Plaintiffs initial claim in August and November 2001 are inconsistent with them reasons for denying his appeal in March 2002;

[2] UNUM is applying an improper definition of disability by classifying Plaintiff as a general practice physician rather than as a urologist. (Thus, UNUM is ignoring the fact that one of the material and substantial duties of Plaintiffs actual occupation, urology, was to perform surgery, which he can no longer do). Moreover, this definition presumes that Plaintiff could actually practice as a general or family physician despite the fact that he has not done so for over 20 years;

UNUM has made several determinations that lack supporting evidence:

-although Plaintiff was not working at the time his claim was denied, there is no evidence that Plaintiff chose not to work, while there is evidence that Plaintiff sought and eventually obtained part-time employment;

-there is no evidence that Plaintiff can obtain employment as a non-surgical urologist; and

-there is no evidence that Plaintiff could make 80% of his previous income as a general or family practitioner;

UNUM did not provide Plaintiff with sufficient notice of his right to appeal the denial when they denied his initial claim in August 2001. Plaintiff received the notice of his right to appeal in November 2001. UNUM also failed to meet deadlines for denying Plaintiff’s initial claim for benefits and his appeal of that denial; and

UNUM failed to provide the surveillance videotape to Plaintiff. Thus, UNUM did not conduct a full and fair review of Plaintiffs claim because Plaintiff did not have an opportunity to respond to it during the administrative process. Moreover, UNUM acted like an adversary by withholding the videotape despite repeated requests for it.

a. Inconsistent Reasons for Denial

The Court does not find any glaring inconsistencies between UNUM’s initial denial and the denial of his appeal that are probative of a conflict of interest. To the contrary, and as more thoroughly discussed, infra, the Court finds UNUM’s repeated reliance on the same, purely quantitative, and therefore faulty, analysis of Plaintiffs ability to work, i.e., that Plaintiff. can work as a part-time, non-surgical urologist because only 20% of urology involves surgery, to be greater evidence of a conflict of interest.

According to the Plan,

MATERIAL AND SUBSTANTIAL DUTIES means duties that:

-are normally required for the performance of your regular occupation; and

-cannot be reasonably omitted or modified.

(U/A 209). Thus, this reasoning lacks support in the administrative record and directly conflicts with Dr. Yarbrough’s letter regarding the surgical nature of urology practice, the DOT definition of “urologist,” and the Genex survey, indicating that all urologists are expected to perform some surgery regardless of how many hours they work.

b. Improper Disability Definition

As will be discussed more fully below, the Court finds that Defendant applied an improper disability definition in processing Plaintiffs claim by finding that Plaintiffs “regular occupation” is “general practice physician” rather than “urologist.” The Court discusses this error in connection with the merits of the parties’ respective summary judgment motions. However, in short, UNUM’s interpretation of Plaintiffs “regular occupation” finds no support in the relevant case law and ignores clear evidence in the record indicating that Plaintiff s . actual, usual duties as a urologist are at issue for purposes of determining whether he is disabled under the Plan.

c.Factual Determinations Lacking Supporting Evidence

Plaintiff has submitted evidence showing that on or about September 25, 2001, prior to UNUM’s final denial of his initial claim for benefits, Plaintiff attempted to obtain part-time employment at KMC. In early April 2002, just after Defendant denied Plaintiffs appeal, Plaintiffs attorney informed UNUM that Plaintiff had begun working part-time at another medical clinic. Thus, other than the fact that Plaintiff was not working during the time his claim for benefits was being processed, there is no evidence that Plaintiff chose not to seek employment.

As mentioned, and as will be discussed fully in connection with the merits of the parties’ summary judgment motions, the Court agrees with Plaintiff that UNUM determined the material fact that Plaintiff could practice non-surgical urology without supporting evidence showing that non-surgical urology positions even exist.

UNUM’s November 8, 2001 letter to Plaintiffs attorney indicates that Plaintiff could make 80% (the amount that will warrant denying benefits) of his previous income as a family or general practitioner. Yet, the Genex survey conducted for UNUM clearly indicates that if Plaintiff could find employment as a general practitioner he would only make between 41% and 62% of his previous income.

UNUM also relied on a website, “salary.com,” in finding that Plaintiff could make between 79% and 82% of his previous income as a family practice physician in Hawaii or Los Angeles, respectively. However, as Plaintiff notes, UNUM compared the “salary.com” figures for family practice physician with Plaintiffs actual previous income. (Plaintiffs Opposition to Defendant’s Motion for Summary Judgment, n. 7). If UNUM had empared the “salary.com” average salaries for family practice physician in Hawaii with the “salary.com” average salary for urologists in Hawaii it would have found that family practice physicians only make 62% of urologists’ salaries. The fact that UNUM relied on such arbitrary and incomparable figures while ignoring traditionally-relied upon and consistent data indicating that Plaintiff could not make 80% of his previous salary, suggests that UNUM conducted itself as an adversary determined to deny Plaintiffs claim.

d. Failure to Follow Plan Procedures

Although the Court did not find that UNUM’s failure to comply with procedural and language requirements, by itself, warranted de novo review under the “deemed denied” rationale, the Court does find that UNUM nevertheless failed to follow plan procedures.

e. Failure to Provide Requested Information

UNUM’s failure to release the video upon Plaintiffs request is evidence of a conflict of interest. As discussed more fully in the next part, UNUM relied on this video in making its determination of Plaintiffs claim, it did not withhold any other documents from Plaintiff, Plaintiff felt compelled to file a complaint with the Department of Labor regarding the withholding, and it appears that Plaintiff did not obtain the video until NEF was ordered to produce it by Magistrate Judge Chang. Plaintiffs inability to submit a response to the video during the administrative process means that UNUM did not conduct a “full and fair review” of the administrative record.

Viewed all together, the evidence cited by Plaintiff indicates that UNUM acted like an adversary determined to deny Plaintiffs claim during the administrative process. Thus, the Court finds that Plaintiff has presented material, probative evidence establishing a rebuttable presumption that UNUM’s conflict of interest affected its decision to deny Plaintiff benefits.

2. Rebuttable presumption of conflict of interest

Because Plaintiff has met his initial burden of producing evidence from which it could be inferred that the plan administrator’s decision was affected by UNUM’s conflict of interest, the burden shifts to UNUM to show that its decision accorded with its fiduciary duties.

To rebut the presumption of a conflict of interest, UNUM provides the following:

UNUM thoroughly explained the basis of its denial to Plaintiff;

UNUM’s decision does not conflict with the plain language of the policy;

UNUM’s decision is not based on any clearly erroneous findings of fact be- • cause all involved agree that Plaintiffs medical practice was only 20% surgical; and

UNUM was within its legal rights to withhold the video from Plaintiff, as the governing regulation is “ambiguous” with respect to what documents must be disclosed to a claimant.

Plaintiff has not argued that UNUM failed to explain the basis of its denial of benefits, only that the explanations were inconsistent. Thus, this evidence does not rebut the presumption of a conflict.

As mentioned and as discussed more thoroughly in the next part, the Court finds that UNUM did ignore the plain language of the Plan by classifying Plaintiff as a general practice physician rather than as a urologist. Plaintiff has also argued that UNUM determined that he could obtain employment as a non-surgical urologist and make 80% of his previous income as a general practice physician without supporting evidence and despite documentation in the record to the contrary. UNUM has not responded to these points in arguing against de novo review and therefore fails to rebut the presumption of a conflict of interest that this evidence establishes.

As 'will be discussed more fully in the next part, case law has interpreted “pertinent” documents as those the plan administrator relied on in making its decision to deny a claim for benefits. The Court finds that Defendant relied on the surveillance video in making its decision to deny Plaintiffs claim for benefits and thus the video is “pertinent” and should have been provided to Plaintiff. Moreover, UNUM’s failure to timely release the video with the rest of the administrative record nor upon Plaintiffs request suggests that UNUM was acting like an adversary rather than a fiduciary. UNUM has not presented any evidence to rebut this presumption.

Conclusion on Standard of Review

The Court finds that Plaintiff has presented sufficient material and probative evidence to create a rebuttable presumption that UNUM’s decision to deny benefits was affected by its conflict of interest. UNUM has not presented sufficient evidence to rebut this presumption. Therefore, UNUM’s decision to deny Plaintiff benefits is reviewable de novo.

II. Plaintiff’s Motion to Strike Surveillance Video from Administrative Record, or to Supplement Record with Treating Physician Declaration

Plaintiff moves to strike the surveillance video (U/A 1257) from the administrative record that the Court will be reviewing de novo to decide the motions for summary judgment. The video contains three (3) days of surveillance of Dr. Raithaus in which he can be seen bending, bicycling, lifting bicycles into his vehicle, swimming, diving under waves, and body surfing in significant wave action, and pulling his young son on a boogie board through water and on sand. Plaintiff argues that because UNUM failed to provide the video to Plaintiff during the administrative process he did not have a proper opportunity to respond to it, and therefore UNUM could not conduct a “full and fair review.” UNUM contends that the law only required the release of “pertinent” documents and that the surveillance video was not “pertinent” because they only relied on the surveillance report in deciding Plaintiff’s claim. The surveillance report was provided to the Plaintiff. UNUM also argues that Plaintiffs motion should be denied because Plaintiff has not indicated how the surveillance report differs from the video.

Plaintiff argues in the alternative that if the Court is inclined to allow the video to remain part of the administrative record, then he should be allowed to supplement the record with new evidence that responds to the video. To that end, he would like to submit the declaration of Dr. Gilbert Hager, who has watched the video and declares, in part, that:

In my professional opinion, there is nothing seen on this video t