Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. In this action governed by the Employee Retirement and Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), plaintiff James C. Sheehan sues defendant Metropolitan Life Insurance Company (“Met-Life”) to recover unpaid disability benefits allegedly due since March 31, 2001, the date MetLife terminated Sheehan’s benefits under an insurance policy (“the Policy,” “the Disability Plan,” or “the Plan”) MetLife issued to Sheehan’s employer, Bear Stearns & Co. (“Bear Stearns”), and for a judicial declaration that MetLife is obligated by the Plan to make future benefits payments to Sheehan on account of his continuing total disability. MetLife contends that it acted properly in terminating Sheehan’s benefits in 2001, and that Shee-han is not presently disabled, so that it owes Sheehan nothing. As required by ERISA, the case was tried to the Court without a jury. See Sullivan v. LTV Aerospace & Defense Co., 82 F.3d 1251, 1259 (2d Cir.1996). The trial began on November 15, 2004, and concluded on November 19. This opinion recites the procedural history of the case and then sets forth the Court’s findings of fact and conclusions of law, in accordance with Fed.R.Civ.P. 52(a). I. PROCEDURAL HISTORY Plaintiff Sheehan commenced this action in a New York State court. Defendant MetLife removed the action to this Court under 28 U.S.C. § 1441(a) and (b), identifying ERISA as the source of the Court’s federal question original jurisdiction. Sheehan did not contest the removal; nor could he have successfully done so. • Following removal, the parties began pre-trial discovery. MetLife moved for a protective order with respect to certain of Sheehan’s discovery demands. The motion required the Court to consider the permissible scope of discovery in an ERISA case such as this one. I resolved those disputes in an opinion reported at 2002 WL 1424592 (S.D.N.Y. June 28, 2002) (“Sheehan I”). Following further discovery, MetLife moved for summary judgment on the ground that the administrative record established its contentions that Sheehan was not totally disabled within the meaning of the Disability Plan on March 31, 2001 and is not disabled today. Sheehan cross-moved to supplement the record and for summary judgment determining that he was and is totally disabled. I decided those cross-motions in an opinion reported at 2003 WL 22290230 (S.D.N.Y. Oct.6, 2003) (“Sheehan II”). In Sheehan I, which established the permissible discovery boundaries, I rejected the contention of MetLife that “the court in an ERISA case may review only the materials considered by the claim administrator.” 2002 WL 1424592, at N. MetLife was the administrator of this Disability Plan within the ERISA context. Although MetLife is nominally an insurance company, “[i]f an insurance company controls the distribution of funds and decides whether or not to grant benefits under an employee benefit plan, then it can be sued as a plan administrator,” id., at *2 (citations omitted), an analysis applicable to MetLife because it made the initial determination that Sheehan was no longer disabled and subsequently rejected his appeal. During the discovery disputes, MetLife acknowledged that a de novo standard of review presumptively applied in this Court, given the general rule that “[a] denial of benefits challenged under [ERISA § 502(a)(1) ] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” id., at *3 (citations omitted), but stated that “it has yet to uncover complete copies of the relevant plan documents.” Id. Following Second Circuit cases, I held that Sheehan was entitled to documentary and deposition discovery on the issues of plan interpretation and the existence vel non of “a conflict of interest or other good cause” entitling Sheehan “to present evidence outside the record on the issue of his physical condition.” 'Id., at *4 (citations omitted). In Sheehan II, I denied the parties’ cross-motions for summary judgment because triable issues of fact precluding summary disposition existed with respect to Sheehan’s medical condition (1) when Met-Life terminated his benefits and (2) at the present time. In the exercise of my discretion, I granted Sheehan’s motion to supplement the administrative record with medical affirmations of his two treating physicians, a cardiologist and a psychiatrist, as well as other medical records whose existence Sheehan demonstrated in his motion papers but could not be found in MetLife’s claim file. I held that the requisite good cause for receiving evidence supplementing the administrative record arose out of (1) the conflict of interest inherent in MetLife’s dual role as Plan administrator and insurer responsible for paying claims, and (2) the apparent incompleteness of the claim file compiled by MetLife. Sheehan II, 2003 WL 22290230, at *3-*4 (citing cases). MetLife was never able to find the complete Policy and Plan it issued to Bear Stearns, either during pre-trial discovery or in response to a trial subpoena Sheehan served. That inability is puzzling. For present purposes, it is sufficient to say that since MetLife as plan administrator “bears the burden of proving that the deferential standard of review applies,” Sheehan I, 2002 WL 1424592, at *3, and Met-Life’s failure of proof in that regard is total, the Court will (1) review de novo the validity of MetLife’s termination of Shee-han’s disability benefits in March 2001, and (2) decide whether Sheehan is entitled to a declaration of present total disability and continued disability payments by MetLife under the Plan. II. FINDINGS OF FACT A. Preliminary 1. Plaintiff James C. Sheehan was born on February 2, 1946. On February 2, 2005 he became 59 years of age. 2. In 1994 Sheehan was employed by Bear Stearns as a Senior Managing Director. On November 25 of that year he suffered cardiac symptoms while at the office. He advised the Bear Stearns nurse and was sent to the emergency room at Lenox Hill Hospital in Manhattan. Shee-han’s cardiologist at the time, Rony Shimo-ny, M.D., eventually made diagnoses of a myocardial infarction and stress. Shee-han presently complains of cardiac and psychiatric symptoms. B. The Disability Plan Provisions 3. I consider in detail infra the evidence with respect to Sheehan’s cardiac and psychiatric conditions. But first I consider the evidence with respect to the terms and conditions of the Policy and Disability Plan issued by MetLife to Bear Stearns, of which Sheehan was a beneficiary at the time he became ill. There are two relevant documents. I will refer to them as “the Certificate” and “the Booklet.” 4. The Certificate bears MetLife’s logo and is comprised of a certification, an unnumbered table of contents, and seven pages which undertake to set forth the pertinent terms and conditions of the group policy MetLife issued to Bear Stearns. The copy of the Certificate included in the claim file did not include the seventh and last page. During an exchange at trial more fully described in ¶ 22, infra, counsel for Sheehan produced a complete copy of the Certificate, which was received in evidence as Pl.Ex. 41. 5. The certificate, on the cover page, recites that MetLife “[c]ertifies that, under and subject to the terms and conditions of the Group Policy issued to the Employer, coverage is provided for each Employee as defined herein,” and that the dates “when an Employee is eligible for coverage” and “when an Employee’s Personal Benefits becomes [sic ] effective” and “the amounts of coverage” are “determined by the form.” The “form” evidently refers to the pages attached to the certification which together comprise the Certificate. 6. The certification by MetLife that I have quoted in the preceding paragraph would certainly suggest the existence of an underlying Group Policy between MetLife and Bear Stearns, to whose terms and conditions the coverage proclaimed by the Certificate is explicitly made subject. But MetLife has been never been- able to find and produce such a policy, notwithstanding discovery demands and a trial subpoena. Bear Stearhs has been asked and cannot find a policy. The State agency regulating insurance matters, which counsel for plaintiff says should have a copy, has been asked and cannot find it. Counsel for plaintiff make much of this non-production. I am asked to. draw an inference adverse to MetLife with respect to the provisions governing Sheehan’s entitlement to benefits. I decline to do so. I accept the trial testimony of Laura Sullivan, a MetLife executive for 16 years, that a disability policy, as differentiated from a certificate, does not contain any of the terms of coverage; that certificates are generally attached to policies and contain the terms of coverage; that the policy contains nothing of interest or relevance to a beneficiary’s claim under the policy; and that “[t]he group policy generally will show the effective date of coverage. It may include the application. It sets forth the financial provisions, the amount of premium for covered payroll, and it includes then a schedule of exhibits which identifies the certificates and amendments that’s relevant.” Tr. 418-19. In her considerable experience, Sullivan has “not seen a group policy that contains any provisions or terms of the plan that are relative to the adjudication of a claim.” Tr. 419. Accordingly I find that' the Certificate in evidence contains the relevant governing provisions of the Policy or the Plan, words that are sometimes used interchangeably. In that circumstance there is no basis for drawing an inference adverse to MetLife for spoliation of evidence, which requires a showing that a party destroyed evidence which is relevant to an opposing party’s claim or defense and is otherwise unavailable. See Residential Funding Corp. v. DeGeorge Fin. Corp., et al., 306 F.3d 99, 107 (2d Cir.2002). 7. MetLife’s position, which for the foregoing reasons- I accept, is that the terms and conditions governing Sheehan’s entitlement to disability benefits are those found in the Certificate. Specifically, Met-Life contends that the provisions relevant to Sheehan’s claim appear in the Certificate at pages 3-6, under the caption “Long Term Disability Benefits.” It is necessary to analyze those provisions in detail. 8. The provisions dealing with Long Term Disability Benefits are divided into sections, as follows: “1. Definitions”; “2. Coverage”; “3. Amount”; “4. Payments of Benefits”; and unnumbered sections captioned “Claim Procedure For Long Term Disability Benefits,” “When Benefits End,” and “Notices.” The provisions particularly pertinent to Sheehan’s claim appear in the sections captioned Definitions and Coverage.. 9. The Definitions section provides in ¶ 1: A. “Full Disability” or “Fully Disabled” means that because of a sickness of an injury you can not do your job. B. “Total Disability” or “Totally Disabled” means that because of a sickness or an injury: (1) You can not do your job; and (2) You can not do any other job for which you are fit by your education, your training or your experience. ¶ l.C. provides in part: “Period of Disability” means any one continuous period of time during which you are Fully Disabled and/or Totally Disabled because of one or more causes. ¶ l.D. provides in part: “Waiting Period” means with respect to each Period of Disability, the first 90 days that you are Fully Disabled and/or Totally Disabled. ¶ l.E. provides in part: “Terminal Date” means, in the case of a disability beginning: (1) before age 62, the later of: (a) your 65th birthday; and (b) the date 36 Monthly Benefits have been paid to you. ¶ l.G. provides: “Primary Benefit Period” means, with respect to a Period of Disability, the period of time, if any, which starts on the day after the end of the Waiting Period and which ceases on the earliest of: (1) the day 24 months after that Waiting Period ends; and (2) the day that Period of Disability ends; and (3) your Terminal Date. ¶ l.H. provides: “Secondary Benefit Period” means, with respect to a Period of Disability, the period of time, if any, which starts on the day after the end of a Primary Benefit Period and ceases on the earlier of: (1) your Terminal Date; and (2) the day that Period of Disability ends. In the case at bar, in February 1995, at the end of the 90-day Waiting Period, MetLife began paying Sheehan monthly disability benefit payments. Those payments reflect MetLife’s acknowledgment that Sheehan was “fully disabled” as that phrase is defined in the Certificate, and thus eligible to receive benefits during the Primary Benefit Period, which lasted 24 months. At the end of that Period, Met-Life continued paying Sheehan benefits, thereby reflecting MetLife’s acknowledgment, that Sheehan was “totally disabled” as that phrase is defined in the Certificate, and thus eligible to receive benefits during the Secondary Benefit Period, which under the terms of the Certificate lasts “while that Total Disability continues to exist” and until Sheehan reaches his 65th birthday. MetLife terminated Sheehan’s benefits on March 31, 2001, on the ground that he was no longer totally disabled, thereby precipitating this action. 10. The provision in the Certificate central to the dispute is found in the Coverage section, which provides in ¶ 2.2.: We will pay Monthly Benefits during the Secondary Benefit Period: (a) if you are Totally Disabled on the day after the end of the Primary Benefit Period; and (b) while you are under The care of a Doctor for that Total Disability; and (c) while that Total Disability continues to exist; and (d) if you have not then attained your Terminal Date; except that no Monthly Benefits will be paid:' (ii) for any part of the Secondary Benefit Period during which you are not confined as an inpatient in a Hospital, if your Total Disability in any way residís from, or is caused or contributed to by a mental or nervous disorder. (emphasis added). 11. MétLife contends 'that these provisions in the Certificate form are binding on Sheehan and that it properly terminated Sheehan’s benefits in March 2001 because at that time Sheehan was no longer totally disabled as that term is defined in the form, or, if he was, the disability resulted from, or was caused or contributed to by a mental or nervous disorder, with the result that ¶ 2.2.(ii), the last-quoted provision, relieves MetLife of any obligation to pay Sheehan monthly benefits during the balance of the Secondary Benefit Period, which would otherwise have terminated upon Sheehan’s 65th birthday. 12. The second document relevant to Sheehan’s disability coverage is what I have called the Booklet. It is a printed booklet that Sheehan testified he received while working at Bear Stearns. The Booklet was received in evidence as Pl:Ex. 42 after a skirmish between counsel recounted more fully in ¶¶ 14-18, infra. The cover displays the phrases “Bear Stearns,” “Disability Benefits,” and “Summary Plan Description.” As more fully discussed in Part III, infra, that last phrase tracks the ERISA statute, which requires the employers or administrators of any employee benefit plan to furnish employees with a summary of the plan’s provisions — an “SPD,” in ERISA parlance, which stands for “summary plan description.” As noted, the Booklet proclaims itself upon its cover to be a “Summary Plan Description.” 13. Plaintiffs counsel attempted to introduce the Booklet into evidence during his examination of Laura Sullivan, currently employed as .a “business, consultant” with MetLife. Tr. 343. In that capacity, Sullivan is thoroughly familiar with the sort of disability policies MetLife issues to employers and the documents such policies generate. Sullivan, subpoenaed by counsel to testify in plaintiffs case in chief, was technically a “hostile witness” as that phrase is used in Rule 611(c), Fed.R.Evid., and accordingly counsel interrogated her by leading questions, as the Rule allows. However, Sullivan did not display during her testimony any hostility to Sheehan capable of compromising her oath to testify truthfully. On the contrary, Sullivan impressed me as an intelligent, articulate, candid and forthright witness, whose testimony I accept. 14. Sullivan identified the Certificate as the certificate of insurance MetLife issued to Bear Stearns, and it was received in evidence without objection as Pl.Ex. 41. Tr. 344-345. Sullivan initially testified to her belief (she had no actual knowledge of what occurred at Bear Stearns) that the Certificate “was distributed to employees as well, which would, in my opinion, render it also a summary plan description.” Tr.344. Counsel for Sheehan then showed Sullivan the Booklet, at that time marked Pl.Ex. 42 for identification only. Sullivan testified that she had never seen it before, and added: A. I’ve never seen this particular document. I have seen summary plan descriptions for group long-term disability policies before. Q. [by counsel for plaintiff] So that is a summary plan description, is that correct? A. Correct. Tr. 345-346. 15. Toward the end of Suliivan’s testimony, I pursued with her the nature and purpose of a booklet such as P.Ex. 42. This exchange followed: THE COURT: What is a plan booklet? THE WITNESS: A plan booklet is generally, it’s generally the certificate of insurance. It may have the specific employer cover on it and be utilized as a summary plan description as well. It’s usually the certificate that sets forth the terms of the disability, plan. THE COURT: So, is it your testimony that a certificate of insurance and a plan booklet are two names for the same document? THE WITNESS: Quite often, yes. THE COURT: Quite often, but not always? THE WITNESS: Not always, correct. THE COURT: All right. So sometimes, in some cases, you have both a certificate of insurance of the sort that we’ve looked at earlier, that begins on page 0595 [of P.Ex. 5], and, in addition to that document called a certificate of insurance, there can also be a different document called a plan booklet, is that correct? THE WITNESS: Yes. THE COURT: Are you aware of any practice or procedure under which— withdrawn, any practice or procedure dealing with when plan booklets are distributed in addition to a certificate of insurance and when they are not? THE WITNESS: No, I’m not aware. THE COURT: Just happens sometimes in your experience? THE WITNESS: I think it would generally be one or the other. I can’t think of a situation where they would both be distributed. THE COURT: To the employees? THE WITNESS: Correct. A booklet would generally take the place of the certificate. THE COURT: So from the employee’s point of view, who is interested in this kind of coverage and who wants to get a document describing it, in your view, that employee would get either a certificate of insurance or a plan booklet, if they both exist, but would not be expected to get both of them, is that fair to say? THE WITNESS: I think that’s fair to say. Tr. 411-413. 16. On what was technically cross-examination, counsel for MetLife elicited from Sullivan testimony that the terms of coverage of the disability plan applicable to Bear Stearns and an employee such as Sheehan were contained in the Certificate. Tr. 418-420. That testimony brought counsel for Sheehan on re-direct of Sullivan back to the Booklet, still languishing as Pl.Ex. 42 for identification only. This testimony then transpired: Q. (by counsel for plaintiff) (addressing the Court) Judge, we have a document that’s been marked as Plaintiffs Exhibit 42 for identification, and this is a — (addressing the witness) I believe you told me that this is a summary plan description, is that correct? A. Yes. * * * * * * THE COURT: Is Plaintiffs Exhibit 42 for identification a plan booklet? THE WITNESS: Yes. THE COURT: It is? THE WITNESS: Yes. THE COURT: So now we have an honest-to-God plan booklet right in this courtroom, is that so? THE WITNESS: Yes, sir. THE COURT: And you also think it’s the - SPD in this case for this policy? THE WITNESS: Yes. Tr. 436, 438-439. Counsel for Sheehan thereupon offered the Booklet into evidence. That offer failed because counsel for MetLife brought out on the voir dire that while Sullivan was “positive” that the Booklet was an SPD, she was not “positive” that the Booklet was the SPD in effect on the date Sheehan went on disability, “because there’s no date in it.” Tr. 439. Counsel for MetLife pressed his objection to admitting the Booklet. I sustained the objection on the then-existing record, saying to counsel for Sheehan that “you’ll have to lay the last brick in your foundation.” Tr. 439. 17. That brick was laid by plaintiff Sheehan himself, the last witness called on his case in chief. Sheehan testified on direct examination: Q. I want to show you this document that’s been marked Plaintiffs Exhibit 42, for identification. Can you tell me, have you ever seen that document before? A. Yes, I did. Q. And where did you see that document? A. At Bear Stearns. That’s my summary plan description. Q. When did they give that to you? A. Sometime after 1985, when I came back to the firm. Q. Was it before you went out on disability? A. Yes. Q. So somewhere— A. I’m talking about ’86 or ’85, ’87, somewhere in there. Q. Did they ever give you another one? A. No. Q. Was that the only one? A. That’s the only one. Tr.451-452. Counsel for Sheehan thereupon re-offered the Booklet into evidence. Counsel for MetLife objected, stating that “I don’t think there’s an adequate foundation that’s the one that’s in effect on the date,” and adding “but, you know, I know the Court will do what it will do.” Tr. 452. Notwithstanding that surly aside, I asked counsel if he wished to inquire on the voir dire. “Well,” counsel responded, “I might as well ask a few.” The following then transpired: Q. (by counsel for MetLife): Do you know if Bear Stearns — do you know who prepared this document? A. I don’t know. They just distributed it to everybody in the office. Q. Who distributed it? A. The firm. Q. Who at the firm? A. I don’t know who. prepared, it, but I know it was distributed in Bear Stearns. Q. Do you know on what date you received it? A. Not exactly what date. At sometime after I got back there in 1985, ’86, maybe. But they came in envelopes around to everybody. Q. And where was this document kept? A. Where did I keep it? Q. Where did you keep it? . A. In my files at home. Q: When did you take it home? A. Same day. Q. And it stayed in yoiir files for all that period? A. That’s correct. Tr. 453-454. Counsel, for MetLife pressed an objection based.,upon insufficient foundation. I overruled, the objection, and received the Booklet into evidence as Pl.Ex. 42. In anticipation of the possibility of an appellate review, I will state my reasons for doing so. 18. Sheehan offered the Booklet as the SPD he was given by Bear Stearns while he was an employee at the firm and prior to his illness. It was his burden to show that the document was what he professed it to be. This is known as “laying a foundation” for admission of a document or other object into evidence. If there had been any question about the sufficiency of the foundation for admitting the Booklet into evidence before counsel for MetLife conducted his voir dire — and in my judgment there was none — the voir dire remedied it. The testimony I have just quoted makes it crystal clear that the Booklet was an SPD given to Sheehan by Bear Stearns before Sheehan suffered his heart attack. Sheehan took it home and kept it in his files, and accordingly was able to hand it to his counsel when the litigation began. 19. The parties apparently dispute whether the Booklet was the only document describing the coverage furnished to Sheehan (as his testimony can be read to assert) or whether he was also furnished with a copy of the Certificate (as MetLife contends). I have quoted in ¶ 17 Shee-han’s testimony that the Booklet is “my summary plan description” which Bear Stearns gave to him sometime after 1985. He also testified that Bear Stearns never gave him “another one” and that P.Ex. 42 was “the only one” given to him. This testimony is not entirely clear. Sheehan may have been saying this document was the only SPD booklet Bear Stearns gave him, a fact not necessarily inconsistent with Bear Stearns having also given its employees copies of the certificate, a document which Sheehan may not have recognized as another form of SPD (although Sullivan testified that such certificates of insurance, if distributed to employees, perform the function of an SPD). On the other hand, Sheehan’s testimony may be read as four-square denial that he received any document dealing with disability coverage other than the Booklet. 20. Although MetLife contends that Sheehan is bound by the terms of the Certificate, at trial counsel for MetLife made no effort to demonstrate that the Certificate was distributed to Bear Stearns employees. During cross-examination, Tr. 470-483, MetLife’s counsel asked Sheehan no questions about what documents Bear Stearns gave him. Counsel did not confront Sheehan with the Certificate, although it was in evidence, to ask Sheehan if he had received a copy while at Bear Stearns. Counsel did not call a personnel representative from Bear Stearns to describe what documents relevant to its group plan with MetLife were given to employees at the pertinent times. 21. The proposition that Sheehan received from Bear Stearns only the SPD Booklet and not the Certificate is supported by the testimony of MetLife’s employee Laura Sullivan that she could not “think of a situation” where both a certificate of disability insurance and a plan booklet would be distributed to employees, since for the employees “[a] booklet would generally take the place of the certificate.” Tr. 412. This evidence of the routine practice of MetLife and the employers to who it issued disability policies, given by a credible witness with knowledge of the practice, “is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Fed. R.Evid. 406. 22. However, the proposition that Sheehan received a copy of the Certificate while at Bear Stearns is inferentially supported by the fact that, as noted in ¶ 4, his counsel was in a position to produce at trial a complete copy of the Certificate of insurance, including the last page, missing from the copy produced by MetLife. That production occurred at the beginning of the trial, when I addressed a subject previously raised in-limine by saying-in part: “What is crystal clear under the [Second Circuit] cases, it seems to me, is that if there is a difference between the SPD and the plan in respect of benefits and the SPD is more favorable to the employee than the plan, then the SPD will trump the plan every time. It controls.” Tr. 6. My comment led to a discussion involving counsel about what documents would be introduced and relied upon during the trial. Mr. Schaerf, counsel for MetLife, said: “[W]e have a certificate, which we now have a complete copy of, thanks to Mr. Sgarlato [counsel for Sheehan] and his client. The certificate was distributed to all employees, and we’ve treated that as if it was an SPD.” Tr. 9. Mr. Sgarlato replied on behalf of Sheehan: Judge, just to clarify this a little further, we have the SPD, and I have discussed this with Mr. Schaerf, and he advised me that my — this booklet that the plaintiff received from his employer years ago is not the SPD. Now he sees it and I think he believes that this is the SPD. So I don’t think there is any issue as to what the SPD is. Now we have this other document that was produced by Mr. Schaerf absent the last page, and my client had a copy with the last page. So I’ve produced the last page to make this document complete. Tr. 10 (emphasis added). Mr. Sgarlato’s perception of Mr. Schaerfs agreement about the identity of the SPD was incorrect; Mr. Schaerf riposted: Judge, maybe it’s not a tempest in a teapot. The point is we have produced the certificate. I don’t know what other document he assumes we would have, infers we would have, implies we would have. We produced the certificate. He’s produced what he claims he’s going to establish through his client is an SPD. We think the certificate serves the purpose of an SPD because it was distributed to all employees.... We’ve made full production. We produced the certificate of insurance, which does govern, unless the SPD trumps it, for whatever' reason. And I don’t see any conflict. Tr. 11-12. 23. A striking aspect of this exchange is Mr. Sgarlato’s acknowledgment that Sheehan “had a copy [of the certificate] with the last page.” One wonders how and when Sheehan came into possession of the Certificate. Was it while he was working at Bear Stearns, before he became ill? If so, did he receive the Certificate before or after he received the Booklet? Or did he receive the Certifícate after his heart attack, which had led to his qualifying for disability insurance payments? The trial record does not contain evidence which answers those questions. 24. Another striking aspect of the trial evidence, previously noted, is that although counsel for MetLife twice asserted during the early colloquy with the Court that the Certificate “was distributed to all employees” by Bear Steams, he made no effort to prove that assertion, either by questioning Sheehan on the point or calling a witness from Bear Stearns. 25. On this evidence, I find that the Booklet, Pl.Ex. 42, was distributed by Bear Stearns to Sheehan during his employment at the company and prior to his heart attack. I accept Sheehan’s testimony on that point. I further find that Shee-han was and is entitled to regard the Booklet as an SPD issued in accordance with the mandate of ERISA, as more fully discussed in Part III, infra. 26. As for the questions of whether Sheehan also received a copy of the Certificate and, if so, when and from whom he received it, I find myself unable on the basis of the trial evidence, and lack of evidence, to make findings of fact one way or the other. Sheehan’s testimony may certainly be read as a denial that the Certificate was distributed to him at work; and Sullivan testified that if (as I have found) Sheehan received the Booklet, it is unlikely that he also received the Certificate. But there is a possible ambiguity in Sheehan’s testimony, as noted in ¶ 19; and Sullivan’s testimony may be read to mean that employees are given either a plan booklet or a certificate of insurance (but not both) before they become disabled, which is not inconsistent with their receiving a copy of the certificate after becoming disabled (an interpretation of my own, not suggested by counsel, which while plausible enough is speculation, not proof). On the other hand, counsel for Sheehan produced a complete copy of the Certificate at the start of the trial, stating that “my client had a copy with the last page.” While counsel for MetLife did not follow up on this inviting lead when cross-examining Sheehan, Sheehan’s possession of the Certificate standing alone supports the inference that someone (we know not who) gave it to him (we know not when). There is no preponderance of evidence on either side of these questions, and accordingly I cannot make findings of fact with respect to them. 27. The Booklet having been received in evidence, its relevant terms may be considered. Page 14 contains this paragraph: Mental or Nervous Conditions If your disability is the result of a mental or nervous condition, Supplemental Long Term Disability Plan benefits will be paid for a maximum of 24 months, unless you are hospitalized at the end of the 24-month period. If you are hospitalized, benefits will continue as long as you remain in the hospital, up to the maximum period shown above. That is the only reference in the Booklet to the effect of a beneficiary’s “mental or nervous condition” upon his entitlement to benefits under the Plan. C. MetLife’s Payments of Benefits to Sheehan and the Termination of Benefits 28. Sheehan’s last day working at Bear Stearns was November 25, 1994, when he suffered the heart attack. Benefits under the Plan became payable monthly to Shee-han on February 24, 1995, upon completion of the 90-day Waiting Period provided for by ¶ l.D. of the Certificate, when the Primary Benefit Period provided for by ¶ l.G. of the Plan began. 29. MetLife paid Sheehan benefits during the two-year Primary Benefit Period. In 1997 MetLife’s staff considered whether to continue paying Sheehan benefits during the Secondary Benefit Period provided for by ¶ l.H. of the Plan, which as noted begins “on the day after the end of a Primary Benefit Period” and ceases “on the earlier of: (1) your Terminal Date; and (2) the day that Period of Disability ends.” 30. In considering whether to continue Sheehan’s benefits into the Second Benefit Period, a process MetLife refers to as a “transition,” the MetLife claims managers considered updated reports from Steven Charno, M.D., Sheehan’s treating cardiologist, and Renato Prati, Jr., M.D., Shee-han’s treating psychiatrist. In an internal memorandum dated May 22, 1997, a Met-Life claims manager stated: AGREE W/ CMS’S RATIONALE FOR APPROVAL BEYOND TRANSITION. CARDIAC AND PSYCHIATRIC STATUS WOULD PRECLUDE EE [employee] FROM SUSTAINED FULL TIME EMPLOYMENT. REC: MONITOR CLAIM IN ONE YEAR FOR M7N AND CARDIAC STATUS. MetLife claim file, Pl.Ex. 5, at Bates numbered pages AR 0495, 0497. “CMS” refers to a MetLife Case Management Specialist, apparently the MetLife employee who initially evaluates a disability claim. “M/N” presumably stands for “mental or nervous disorder,” a benefits-disqualifying condition under ¶ 2.2.(d)(ii) of the Certificate. The author of the report and recommendation I have just quoted would appear to be the individual in the MetLife hierarchy to whom the Case Management Specialist assigned to Sheehan’s claim reported. That individual’s recommendation was approved at a higher level in. MetLife, and Sheehan’s benefit payments continued “beyond transition” from the Primary Benefit Period into the Secondary Benefit Period. 31. In a letter dated March 23, 2001, MetLife gave Sheehan notice that his benefits would be terminated on March 31, 2001. Pl.Ex. 5, at AR 0556-0561. That letter summarized MetLife’s perceptions of Sheehan’s medical records, as supplemented by records subsequent to 1997; advised Sheehan that MetLife had arranged for the video taping in April 1999, May 2000, and August 2000 of Sheehan’s outdoor activities near his home in Florida (to which Sheehan had moved from Connecticut, his state of residence while employed by Bear Stearns); and that Met-Life “had your medical records and the video tapes of your activity reviewed by an independent physician consultant board certified in Cardiology and Internal Medicine. In addition, we also had them reviewed by an independent physician consultant board certified in Psychiatry and Neurology.” Id. at AR 0559. The cardiologist MetLife consulted was Dr. Parag Patel. His report appears at AR 0682-0688. The psychiatrist was Dr. Reginald A. Givens. His report appears at AR 0688-0690. Neither Dr. Patel nor Dr. Givens examined Sheehan. They based their reports upon the medical records contained in the MetLife claim file. MetLife concluded its notice of termination by stating: The review of medical records and surveillance tapes conclude [sic ] that there is no objective medical evidence from a psychiatric perspective that would preclude you from return to work. In addition, the plan does not allow continuation of benefits beyond the Secondary Benefit Period (24 months after the Waiting Period ends) for a psychiatric condition. In regards to your physical condition, the records confirm the myocardial infarction you suffered at the beginning of the claim. However, the medical records in addition to the surveillance information conclude that from a physical standpoint, you no longer meet the definition of disability. Therefore, benefits will terminate March 31, 2001. Id., at AR 0561. In the first of the two paragraphs I have quoted, MetLife is arguing in the alternative. with respect to Sheehan’s psychiatric condition as of March 23, 2001. MetLife takes the position that the psychiatric medical records do not show that Sheehan is disabled. But even if the records made such a showing with respect to a psychiatric condition as of March 23, 2001, MetLife states that “the plan does not allow continuation of benefits beyond the Secondary Benefit Period (24 months after the Waiting Period ends) for a psychiatric condition,” a limited period of eligibility which in MetLife’s view had run out. While MetLife’s notice of termination does not cite to the -provision of the Plan upon which that altérnative . assertion- is based, undoubtedly the claims manager who wrote the March 23, 2001 letter had in mind ¶ 2.2(d)(ii) of the Certificate, which provides that “no Monthly Benefits will be paid ... for any part of the Secondary Benefit Period during which you were not confined in a Hospital, if your Total Disability in any way results from, or is contributed to by a mental or nervous disorder.” 32. Sheehan appealed MetLife’s notice of termination. Under the Plan, that appeal was decided by MetLife itself. A “Procedure Analyst” in MetLife’s employ rejected Sheehan’s appeal in a letter dated July 18, 2001, Pl.Ex. 5, at AR 0612-0616, thereby setting the stage for this action. 33. It is apparent that the case turns principally upon Sheehan’s physical, which is to say cardiac, and psychiatric conditions (a) on March 31, 2001, when MetLife terminated his disability benefits and (b) at the present time. The evidence adduced at trial with respect to these two conditions will, in the first instance, be considered separately. D. Plaintiff’s Cardiac Condition 34. In November 1994, while employed at Bear Stearns, Sheehan “experienced an acute myocardial infarction (‘heart attack’) due to a complete occlusion of the mid-portion of the left descending coronary artery. This was treated by angioplasty. One week later he underwent a myocardial perfusion stress test showing a ‘large amount of scarring’ and ‘a small amount of exercise-induced ischemia in the territory of the LAD.’” I have quoted from page one of a letter opinion dated June 17, 2004 from Kenneth M. Stein, M.D., a cardiologist, to counsel for MetLife (the “Stein Letter”). Dr. Stein testified at trial for MetLife as an expert witness in cardiology. He based the opinions expressed in the Stein Letter and at trial on certain of Sheehan’s medical records contained in the MetLife claim file. MetLife did not call as a trial witness Dr. Patel, the cardiologist upon whose opinion MetLife relied in terminating Sheehan’s benefits. Thus for purposes of proof at trial, on the issue of Sheehan’s cardiac condition MetLife’s case depends principally upon the opinions of Dr. Stein. 35. “LAD,” as used in the quotation from the Stein Letter in the previous paragraph, is an acronym for “left artery descending.” “Ischemia” is “a condition in which the blood flow (and thus oxygen) is restricted to a part of the body. Cardiac ischemia is the name for lack of blood flow and oxygen to the heart muscle.” “Is-chemic heart disease” is “also called coronary artery disease and coronary heart disease. This can ultimately lead to heart attack.” 36. The evidence at trial demonstrated that MetLife’s claim file did not contain all the medical records pertinent to Sheehan’s cardiac condition since his heart attack in November 1995. For reasons that do not appear from the evidence, certain medical records and reports that Sheehan sent to MetLife were not placed in Sheehan’s claim file. Specifically, the parties stipulated at trial that medical records admitted into evidence as PI. Exs. 12, 17, 18, 20, 21, 23 and 24 were not included in MetLife’s claim file on Sheehan, although I find on the basis of Sheehan’s testimony, Tr. 460, that Sheehan and his wife sent them to MetLife. In consequence, these particular medical records were not sent by MetLife to Dr. Stein. The most complete compilation of Sheehan’s- medical records is found in Pl.Ex. 36 for identification. That three-page document purports to summarize the contents of all of Sheehan’s echocardio-grams, angiograms, and thallium stress tests from November 25, 1994 (the day of his heart attack)- to December 2, 2003, received in evidence at the trial. 37. Sheehan has not worked at any job for any employer since his heart attack on November 15, 1994. 38. As previously noted, at the time of his heart attack Sheehan was under the care of Dr. Rony Shimony, a cardiologist. Following the attack Sheehan discharged Dr. Shimony, sued him for malpractice, and on the advice - of friends consulted Steven Charno, M.D., a board certified cardiologist who maintains a practice on Long Island. Dr. Charno first saw Shee-han on September 3, 1996, and has treated him thereafter. Dr. Charno does not perform the more complicated diagnostic procedures such as stress tests, and performs no invasive procedures such as angio-grams, also known as cardiac eatheteriza-tions. He refers a patient requiring such testing to other physicians in the area, who report their findings to Dr. Charno. 39. At the time of his heart attack Sheehan lived in Greenwich, Connecticut. On medical advice he moved to Florida in mid-1996. Sheehan, his second wife, and their two children, a four year old boy and a one year old girl, now live in Pompano Beach, Florida. But Dr. Charno continues to treat Sheehan. Sheehan comes to the New York area on a quarterly basis, and Dr. Charno evaluates,his cardiac condition on each occasion, ordering further diagnostic tests from time to time. In addition, Sheehan consults with Dr. Charno by telephone from Florida if the need arises. 40. The summary of tests, Pl.Ex. 36 for identification, lists 26 diagnostic procedures performed on Sheehan. The earliest was performed at Lenox Hill Hospital, Manhattan on November 25, 1994, the date of Sheehan’s heart attack. The most recent was performed at Long Island Jewish Hospital on December 2, 2003, on Dr. Charno’s orders. 41. The Lenox Hill angiogram on November 25, 1994 revealed a 100% stenosis (that is to say, a blockage) of Sheehan’s left anterior descending artery, which leads to the left ventricle of the heart. That blockage had caused Sheehan’s heart attack. It was treated by an angioplasty. 42. The medical records subsequent to this procedure reflect that over the years Sheehan has repeatedly complained of chest pain. The Stein Letter states at page 1 that Sheehan “experienced recurrent chest discomfort and, in January 1995, underwent a cardiac cathetarization,” which, in Dr. Stein’s view, “showed no significant residual coronary artery disease.” However, in March' 1997 and June 1998 Sheehan was hospitalized at the Cleveland Clinic Hospital in Fort Lauder-dale, Florida, with chest pains. According to the hospital records, Pl.Ex. 19, on March 26, 1997 Sheehan was admitted to the Cleveland Clinic Hospital complaining of chest pain. The emergency physician record, after the printed caption “Similar symptoms previously,” contains the handwritten notation “Yes pt has h/o angina once/month w/ similar quality.” Sheehan was admitted again to the Cleveland Clinic Hospital on June 2, 1998, complaining of chest pain. A similar form, after the caption “Similar symptoms previously,” contains the handwritten notation ‘Tes — one month ago.” Dr. Alan Rosenbaum, a hospital staff physician, gave his written impression of Sheehan: “The patient has unstable angina. Will admit and rule out for myocardial infarction. Consider heart cathetarization.” PI Ex. 22. The Stein Letter referred to this hospitalization “due to recurrent chest discomfort,” page 2, although its date was incorrectly said to be June of 1997 when it was June of 1998. The Stein Letter did not refer to the hospital physician’s impression of “unstable angina.” At trial Dr. Stein defined angina as “chest discomfort,” and said that “Unstable angina, basically, just refers to a change in a previous pattern of angina.” Tr. 209-210. “Unstable angina,” Dr. Stein testified, is “a potentially significant finding. It’s a worrisome phrasing [sic in the transcript] is the best way to phrase it.” Tr. 210. 43. In June 2003 Sheehan was in the New York area and underwent a stress test which suggested the presence of ische-mia. Sheehan returned to Florida with the recommendation that he undergo another cardiac catheterization. This procedure was performed at the Holy Cross Hospital in Fort Lauderdale on June 12, 2003 by Bart Musial, M.D., whose report is found at PI Ex. 33. Sheehan presented himself at Holy Cross Hospital complaining of “weakness and fatigue.” Id. at 1. The catheterization revealed that the right coronary artery had “a 40% narrowing in its mid portion before the second bend. In its distal portion just before the bifurcation there is critical 80% stenosis.” Id. at 3. “Because of the stenosis of the right coronary artery it was decided to undergo angioplasty,” id. at 1, which was performed that day. The Stein Letter at page 3 says of these events that “a significant obstruction of the right coronary artery (80%) was present and this was successfully treated with a stent.” 44. The last medical records in evidence, Pl.Ex. 34 and Pl.Ex. 35, show that on December 1, 2003 Sheehan was back in the New York area. Dr. Chamo referred Sheehan to Dr. Steven Kobren for a perfusion imaging exercise report. Sheehan exercised according to the Bruce Protocol, which involves walking in place on a treadmill through a series of “stages” with progressively increasing speed and elevation or grade (the latter creating the effect of walking up hill). After 11 minutes, Dr. Kobren reported that “[t]here was shortness of breath associated with exercise.” Pl.Ex. 34. “The test was terminated secondary to fatigue and attainment of heart rate.” Id. Sheehan was referred to the Long Island Jewish Hospital for an angio-gram, which was performed on December 2, 2003. The conclusions based upon this procedure were: “nonobstructive coronary heart disease;” “moderately decreased left ventricular ejection fraction (EF-43%),” “and no evidence of mitral regurgitation.” Pl.Ex. 35. Dr. Rajiv Jauhar, who performed the procedure, stated that based upon its results, “it was recommended that the patient be managed with medical therapy.” Id. Further Findings with respect to Sheehan’s cardiac condition as reflected in the medical records will be found in ¶¶ 75-77, infra. 45. On direct examination, Sheehan described his present physical complaints: Q. Mr. Sheehan, will you tell me what physical complaints you have now that you feel prevent you from working a full-time job? A. I think my, my biggest problem is kind of continuous fatigue. I tend to be active an hour or two during the day, around the house, if I’m — I get chest pain and shortness of breath when I do too much. I know about that pretty quickly. Q. How do you feel when you wake up in the morning? A. It depends on how I slept. Q. Okay. And if you slept well— A. Yeah, I’m good, good for a while. Q. Do you have energy? A. Yeah, sometimes. Q. Okay. A. I try to go out early, while I still have energy. Q. Do you run out of gas after a while? A. Yeah, midday, I try to take a nap every day. Q. The chest pains, how often do you get them? A. They’re random, they just come. If I overdo it, you can predict that, and sometimes, you know, sometimes you’ll just bend over, and your vision will go through a pinhead. Q. How do you feel about chest pains? A. I’m afraid of them. Q. Why? A. I spent six hours in Lenox Hill Hospital on a gurney trying to convince somebody that I was having a heart attack, and I almost died there. And when you do that once, every chest pain goes back to the same place. Tr. 468-469. 46. Dr. Chamo, Sheehan’s treating cardiologist in Long Island, testified at the trial as a witness for Sheehan. On direct examination he described his treatment of Sheehan, and was asked by counsel if he has “an opinion as his treating physician whether or not he could work on a full-time basis at any job,” to which Dr. Char-no responded: “My opinion is that he cannot.” Tr. 287. At the end of Dr. Charno’s testimony, after counsel for both parties had concluded their questioning, I put these questions to him: THE COURT: You said to counsel, I think, that in your opinion Mr. Shee-han, in his present condition, was, according to my note, at least, disabled from all work. Is that the opinion you presently hold, Doctor? THE WITNESS: From all work that he could reasonably be expected to do. THE COURT: All right. Give me, sum up for me your reasons for holding that opinion. THE WITNESS: He gets extremely fatigued extremely quickly. He gets short of breath with minimal or very little exertion. He does get chest pain. He’s on medications for all the aspects of cardiac disease. He’s on four or five different medications, and he just has no staying power at all and he gets, because he’s had several unstable episodes, including one last year when he just collapsed and was hospitalized for that. That would have been his sixth angiogram, but he refused it. He collapsed. Admitted for a vascular collapse in Florida. These are the reasons that I’m basing it on. Tr. 327-328. 47. Earlier in his testimony, Dr. Char-no touched upon another significant aspect of the case, and I will quote that testimony as an overture to the testimony of another of Sheehan’s treating physicians, Dr. Re-nato Prati, a psychiatrist. Dr. Charno testified on direct examination: Q. Have you ever heard the term “cardiac neurosis”? A. Yes. Q. What caused, in your opinion, what was it that caused Mr. Sheehan’s initial disability back in 1994 and ’95? A. That’s when he had his heart attack. Q. Okay. Does he also suffer from any type of mental condition? [Opposing counsel objects to question and is overruled.] A. He has cardiac neurosis, subsequent to the initial cardiac event. Q. What is comorbidity, doctor? A. Comorbidity is a confluence of factors contributing to sickness. Q. Does Mr. Sheehan have comorbidity? A. Yes, I believe. Q. What is it? A. Coronary artery disease symptoms attendant to his heart problem and his cardiac neurotic condition as well. Tr. 290. I will consider the evidence concerning Sheehan’s cardiac neurosis and the resulting comorbidity effect in the next sub-part of these Findings. E. Plaintiffs Psychiatric Condition 48. Dr. Renato Prati, a board certified psychiatrist practicing on Staten Island, first saw Sheehan on April 6, 1995. He saw him regularly thereafter until Sheehan moved to Florida in 1996. Now Dr. Prati sees Sheehan during Sheehan’s quarterly trips to New York. He also conducts 50-minute telephone conversations with Shee-han in Florida every two weeks. 49. On a prior motion in the case Dr. Prati submitted a medical affirmation, ¶ 4 of which he adopted as part of his testimony at trial. It says: Mr. Sheehan’s subjective symptoms which were obtained during psychotherapy visits are depression, fear of death, anxiety, fatigue, constriction of interest, inability to manage stress, decreased concentration and memory ability, poor sleep pattern, loss of appetite, and variable psychomotor impairment. In addition, Mr. Sheehan suffers from recurrent chest pains. Tr. 70-71. On direct examination counsel for Sheehan asked Dr. Prati “is there an underlying cause of these mental conditions”? This testimony then ensued: A. I believe the underlying cause is that he has cardiac pathology and that he, his response to the pathology is what we would call cardiac, cardiac neurosis.... Q. What is cardiac neurosis? A. It’s a conglomeration of everything we just read, which is basically focused on the cause as being a cardiac pathology, a heart illness and then the neurosis exacerbates the heart illness. Now we have stress exacerbating a cardiac condition. My area is the stress area. All right. Once you have more distress, I think your cardiac condition gets worse. So it’s a very vicious cycle. Tr. 74-75.. “Cardiac neurosis” is a condition recognized and given an identifying number on the well-known Psychiatric Diagnostic and Statistical Manual of Mental Disorders, or “DSM.” Tr. 76. 50. Cardiac neurosis when combined with cardiac pathology brings about that condition of comorbidity described by Dr. Charno in his testimony. Dr. Prati defined comorbidity in comparable terms: “Basically, there are two illnesses existing at the same time. One is cardiac pathology and the other is cardiac neurosis.” Tr. 75. Sheehan’s psychiatric condition adversely impacts upon his cardiac condition “[b]ecause stress will affect the functioning of the heart”; it is a recognized risk factor in heart attacks. Tr. 75-76. 51. Dr. Prati described what occurs and what he attempts to accomplish during his psychotherapy sessions with Sheehan, in person or on the telephone: A. And we basically discuss all areas that I consider that we could have, make an attempt to decrease the stress, make an attempt to give him alternatives, support him in different areas so that — my whole function is basically to decrease the stress, decrease the anxiety, get him as close as I can to the feeling that he could live for one day to the next instead of waiting to die. The all-pervasive thing, all right, that occurs with these types of things is a patient thinks they’re going to die. And therefore, you know, why make plans, why, why do this, why do that? Tr. 76-77 (emphasis added). 52. In Dr. Prati’s opinion, Sheehan is presently “unfit for any type of employment.” Tr. 84. 58. Dr. Prati expressed a further opinion on direct examination, as follows: Q. Is Mr. Sheehan’s disability in your opinion the result of a mental or nervous condition? A. No. Q. What causes Mr. Sheehan’s disability, Doctor? We’ll get into exactly what the disability is later. A. His cardiac pathology. He has heart disease. [Objection overruled.] Q. Okay. Now, Doctor, if his disability is a result — is not the result of a mental or nervous condition, does he suffer from a mental or nervous condition? A. Yes. Q. What causes, in your opinion, his mental or nervous condition? A. The fact that he has cardiac pathology, that he has a damaged heart, which causes stress. Tr. 72-73. This testimony is a precursor to Dr. Prati’s later statement, quoted in ¶ 49, that Sheehan’s cardiac neurosis constitutes his “response” to his cardiac pathology (emphasis added). Hence the use of the adjective “cardiac” to modify the noun “neurosis.” This is important testimony because, as will be further developed in the these Findings and in the Conclusions of Law in Part III, it speaks not only to whether Sheehan is disabled from work, but also to whether such disability, if proven, is covered by the MetLife Plan. 54. Counsel for MetLife cross-examined Dr. Prati on this point: Q. Let’s talk about cardiac neurosis. He has to have objective findings of a cardiac problem to have cardiac neurosis, isn’t that correct? A. Yep. Q. If he doesn’t have a real cardiac problem, but he has fear, that’s a different diagnosis, correct? A. Correct. Q. What’s that diagnosis? A. Hypochondria. Q. So you’re saying that he’s not a hypochondriac, but that he does have cardiac neurosis? A. That’s correct, because the cardiac neurosis is based upon, all right, cardiac damage. He has heart problems. Tr. 125-126. 55. Dr. Prati testified that over the years his therapy had improved Sheehan’s mental condition to some degree. On that subject, he testified on direct examination: A. Well, it took quite a few years between me and his wife to convince him that could be around long enough to have two more children, and that’s kind of devastating, you know. You have a child and you say I don’t even think I’m going to see this child five years old. Thank God he’s got two healthy, a boy and a girl! Q. All right. A. And that is what I call an overall improvement. Does it mean that he doesn’t think about, you know, I better enjoy my kid now because I could die tomorrow because this heart doesn’t get any better? And that’s still there, you know. Q. Now, Doctor, has this improvement in any way improved to the point where he’s able to go back to work on a full-time basis? A. No. We’re talking about minimal, minimal stress in the home environment. Tr. 93-94. F. The Testimony of Dr. Stein 56. Dr. Stein was the only medical expert witness MetLife called at the trial. MetLife identified Dr. Stein as an expert witness in cardiology, and the Court qualified him as an expert in that specialty. Notwithstanding that limitation, Dr. Stein’s testimony is relevant to both Shee-han’s cardiac condition and his psychiatric condition. 57. Dr. Stein, the author of the opinion letter sent to MetLife’s counsel and described in ¶ 34, was listed in the pre-trial papers as an expert witness for MetLife. However, counsel for Sheehan called Dr. Stein as an adverse witness, with counsel for MetLife then being in the position of eliciting any further evidence from him by what was in form (although not in substance) cross-examination. 58. Counsel for Sheehan took Dr. Stein through the Stein Letter, sentence by sentence. While Dr. Stein acknowledged that he had not received or considered some medical records upon which counsel laid a certain emphasis, he did not retreat in any material way from the opinions he expressed in the Stein Letter. Rather than quote at length from Dr. Stein’s trial testimony, I will set quote the opinions with which the Stein Letter concludes, to which Dr. Stein adhered in his testimony. Dr. Stein reviewed the medical records furnished to him by MetLife. His Letter focused particularly upon Sheehan’s ventricular function (measured by the ejection fraction, see fn. 12, infra) as revealed by echocardiograms, and upon the results of Sheehan’s several stress tests. The five concluding substantive paragraphs in the Stein Letter, at pages 3-4, read as follows: In June 2003 another echocardiogram showed mild impairment of ventricular function (ejection fraction: 43%). During a perfusion stress test he exercised to Stage 3 of a Bruce protocol with evidence of a small area of ischemia. He underwent another cardiac catheteri-zation. This time a significant obstruction of the right coronary artery (80%) was present and this was successfully treated with a stent. A ventriculogram during the cardiac cath showed normal ventricular function (ejection fraction: 60%). In December 2003 he had another perfusion stress test. He exercised for 11 minutes of a Bruce protocol before the test was terminated due to fatigue. There was only evidence of a small area of ischemia. Ventricular function was normal with stress (ejection fraction: 60%). Another cardiac cathet-erization was performed, showing no significant residual coronary artery disease. Ventricular function was mildly impaired (ejection fraction: 43%). He saw Dr. Kobren who noted that “he denies any chest pain, shortness of breath” and who felt that he was “clinically stable.” The evidence thus clearly demonstrates that Mr. Sheehan is physically capable of resuming his work. At present he has no significant residual obstructions in his coronary arteries. Multiple imaging studies over the years have shown him to have at worst mild impairment of his ventricular function. The most recent assessment shows him to have perfectly normal ventricular function. In addition, during multiple stress tests, Mr. Sheehan has demonstrated excellent effort tolerance. He has consistently been able to exercise to stage 3 or stage 4 of