Rabuck v. Hartford Life & Accident Insurance Co. (522 F. Supp. 2d 844, 2007)

United States District Court for the Western District of Michigan 2007-10-30

Citations

Full opinion text

OPINION

JOSEPH G. SCOVILLE, United States Magistrate Judge.

This is an action for benefits brought pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(a)(1)(B). Plaintiff seeks reinstatement of long-term disability benefits (LTD) under a policy of insurance provided by his former employer, Precision Manufacturing Group, LLC. The policy was written by Hartford Life and Accident Insurance Company (Hartford). The insurance policy (AR 797-826) contains all the operative provisions regarding payment of LTD benefits and for all intents and purposes is the ERISA plan. Hartford paid plaintiff LTD benefits under the plan from January 24, 2004 until May 2005, when Hartford terminated LTD benefit payments, finding that plaintiff was no longer disabled because he was capable of working full-time in his own occupation as a company president. Hartford denied plaintiffs appeal. On April 28, 2006, plaintiff filed this lawsuit.

Pursuant to the requirements of the case management order (docket # 13), the parties have now filed the administrative record (AR) (docket # 17) and their briefs addressed to the procedural and substantive issues involved in this case, (docket #’s 19-22). Under Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir.1998), the court’s review of plaintiffs claim under ERISA must be based upon the administrative record alone. The parties have consented to the dispositive jurisdiction of a magistrate judge. {See Consent and Order of Reference, docket # 14). Upon review of the administrative record, the court finds that Hartford’s decision to terminate plaintiffs LTD benefits and its decision to deny plaintiffs appeal were arbitrary and capricious and cannot withstand judicial review.

Findings of Fact

A. Plaintiff’s Occupation and Employer

1. Plaintiff is the former President of Precision Manufacturing Group, LLC (Precision Manufacturing), which does business under the name Servometer. The company designs and manufactures custom precision components, principally the production of precision electroformed bellows and related products. (AR 405, 407, 412-15). Mr. Rabuck became Precision Manufacturing’s president in January 2001. (AR 323, 325). As company president, Mr. Rabuck reported to the company’s board of directors. The company defined its president’s duties and responsibilities as follows:

• Effectuate Operating Agreement;

• Direct and supervise the day to day operation of the Company;

• Preside over all meetings of the Members[;]

• Be the official spokesperson for the Company and be the person primarily responsible for conducting transactions with the Company’s attorney and accountant[;]

• Sign, on behalf of the Company, such deeds, mortgages, bonds, contracts or other instruments that have been properly authorized to be executed by the Members[;]

• Establish such charges fo[r] services and products of the Company as may be necessary to provide adequate income for the efficient operation of the Company!;]

• Employ and maintain the necessary talent to effect the start up and operations of the Company and set and adjust wages and rate of pay for all personnel of the Company and shall appoint, hire and dismiss all personnel and regulate their hours of work[;]

• Have charge over the books and financial affairs of the Company and shall keep the Members advised in all matters pertaining to the operations of the Company, services rendered, operating income and financial position!;]

• Be custodian of the Company records and seal of the Company!;]

• Keep a register of the post-office address of each Member!;]

• Sign the authorization Certificates of Membership in the Company!;]

• Have general charge of the Certificate of transfer books of the Company!;] and

• Have charge and custody of all funds and securities of the Company and be responsible therefore and for the receipt and disbursement thereof.

(AR 317, 505).

B. The Plan

2. The LTD plan is embodied in a policy of group insurance issued by the Hartford, effective July 1, 2001 (AR 797-826) (hereinafter “Policy”). The Policy covered the “Active Full-time Salaried Employees” of Precision Manufacturing. (AR 801). The Policy provided for the payment of long-term disability benefits after an “Elimination Period.” The Elimination Period is defined as “the period of time you must be Disabled before benefits become payable. It is the last to be satisfied of the following: 1. the first 3 consecutive month(s) of any one period of Disability; or 2. with the exception of benefits required by state law, the expiration of any Employer sponsored short term disability benefits or salary continuation program.” (AR 801).

3. The Policy contains the following statement regarding interpretation of the Policy’s terms and conditions:

Who interprets the terms and conditions?

We have full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.

(AR 811). “We, us or our means the Hartford Life and Accident Insurance Company.” (AR 815).

4. Disability is defined as follows: Disability or Disabled means that during the Elimination Period and for the next 24 months you are prevented by:

1. accidental bodily injury;

2. sickness;

3. Mental Illness;

4. Substance Abuse;

from performing one or more of the Essential Duties of Your Occupation, and as a result Your Current Monthly Earnings are no more than 80% of your Indexed Pre-Disability Earnings.

After that, you must be prevented from performing one or more of the Essential Duties of Any Occupation.

(AR 812).

5. “Essential Duty” and “Your Occupation” are defined terms:

Essential Duty means a duty that:

1. is substantial, not incidental;

2. is fundamental or inherent to the occupation; and

3. can not be reasonably omitted or changed.

To be at work for the essential number of hours in your regularly scheduled workweek is also an Essential Duty.

(AR 812).

Your Occupation, if used in this Booklet-certificate, means your occupation as recognized in the general workplace. Your occupation does not mean the specific job you are performing for a specific employer or at a specific location.

(AR 815).

6. LTD disability benefits are payable when five conditions are met: (1) the employee becomes Disabled while insured under the Plan; (2) the employee is Disabled throughout the Elimination Period; (3) the employee remains Disabled beyond the Elimination Period; (4) during the Elimination Period the employee was under the regular care of a physician, and the employee continues under the regular care of a physician; and (5) the employee submits a satisfactory Proof of Loss. (AR 803). “Benefits accrue as of the first day after the Elimination Period and are paid monthly.” (AR 803).

7. The Policy deals with “Proof of Loss” as follows: “All proof submitted must be satisfactory to us.” Proof of Loss expressly includes the claimant’s signed authorization for Hartford to “obtain and release: a) medical, employment and financial information; and b) any other information we may reasonably require.” (AR 810). It includes Hartford’s right to require the claimant to undergo an “examination”:

What additional Proof of Loss are we entitled to?

We may have you examined to determine if you are Disabled. Any such examination will be:

1. at our expense; and

2. as reasonably required by us.

(AR 810).

8. The Policy specifies seven circumstances under which benefit payments would be terminated:

We will terminate benefit payment on the first to occur of:

1. the date you are no longer Disabled as defined;

2. the date you fail to furnish Proof of Loss, when requested by us;

3. the date you are no longer under the Regular Care of a Physician, or refuse a request that you submit to an examination by a Physician;

4. the date you die;

5. the date your Current Monthly Earnings exceed:

a) 80% of your Indexed Pre-disability Earnings if you are receiving benefits for being disabled from Your Occupation; or

b) an amount that is equal to the product of your Indexed Pre-disability Earnings and Benefit Percentage if you are receiving benefits for being disabled from Any Occupation;

6. the date determined from the Maximum Duration of Benefits Table shown in the Schedule of Insurance; or

7. the date no further benefits are payable under any provision in this plan that limits benefit duration.

(AR 804).

9.Hartford’s Policy required that the claimant apply for social security disability benefits:

When must one apply for Social Security Benefits?

You will be required to apply for Social Security disability benefits when the duration of your Disability meets the minimum duration required to apply for such benefits. If the Social Security Administration denies your eligibility for benefits, you will be required:

1. to follow the process established by the Social Security Administration to reconsider the denial; and

2. if denied again, and we agree to pay the costs, to request a hearing before an Administrative Law Judge of the Office of Hearings and Appeals.

(AR 810).

10. Precision Manufacturing purchased Group Insurance Policy GLT-680510 (Policy) through Hartford, effective on July 1, 2001. Plaintiff was an insured under the Policy.

C. Plaintiffs Heart Attack and Heart Transplant

11. On May 8, 2002, Robert Rabuck, then 53 years old, was transported to the emergency room of the Medical College of Ohio Hospital via Lifeflight. (AR 608). His condition became unstable, “requiring intubation and emergent cardiac catheteri-zation.” (AR 508, 618). The intubation was traumatic. It caused severe bleeding and a significant amount of aspiration of gastric contents. (AR 619). Mr. Ra-buck’s condition “deteriorated further in the cardiac catheterization laboratory where he suffered ventricular tachycardia/ventricular fibrillation arrest and cardiopulmonary resuscitation was done.” (AR 508, 611, 639). During catheterization plaintiff suffered a hemodynamic collapse. (AR 639, 641). Hospital records state, “In the process of performing the angioplasty the patient was transitioned from intra-aortic balloon pump to CPS due to hemodynamic collapse and recurrent refractory ventricular fibrillation with poor response to multiple defribrillations.” (AR 641). Mr. Rabuck was hypotensive and unresponsive for forty minutes. (AR 619). He was treated for repeated episodes of ventricular fibrillation. (AR 611, 639). Mr. Rabuck was placed on cardiopulmonary bypass support and stabilized with intravenous vasopressors. (AR 508). “Cardiac catheterization findings included cardiogenic shock, left anterior descending artery obstruction, left circumflex artery occluded just after the first obtuse marginal branch and an occluded right coronary artery proximally.” (AR 506). Plaintiffs May 9, 2002 echocardiogram showed severely depressed left ventricular function. (AR 646). The CT scan of plaintiffs lung bases showed “moderately large bilateral pleural effusions.” It also indicated free fluid in plaintiffs deep pelvis. (AR 631).

12. On May 10, 2002, plaintiff underwent surgery for placement of an intra-aorta balloon pump. (AR 638-39). His May 10, 2002 neurological examination reflected that he was “comatose” and was being maintained on a ventilator. (AR 619-22). Plaintiff did not respond to any stimulus, including verbal and painful stimuli. Mr. Rabuck had a negative corneal reflex. (AR 621). The neurological examination’s “problem list” included “cardiog-enic shock, AMI and anoxic brain injury.” (AR 623). When plaintiff emerged from his coma he was able to respond to verbal commands, squeeze with his hands, lift his limbs, move his toes, but could not see and was unable to follow a moving object. G. Tietjen, M.D., the attending physician, provided a diagnosis of “anoxic encephalopathy” and stated that plaintiffs ability to follow verbal commands suggested “a relatively good prognosis for moderate to good neurologic recovery.” (AR 624). In an effort to evaluate plaintiffs decreased vision, a CT scan of his brain was conducted on May 11, 2002. It did not show evidence of intracranial bleeding. (AR 633, 772).

13. On May 13, 2002, doctors believed that plaintiff had sufficiently recovered to survive another surgical procedure. They decided to implant a left ventricular assist device because plaintiff “still did not have an adequately working heart.” (AR 647-48). A ventricular assist device (VAD) is a mechanical pump that helps a heart that is too weak to pump blood through the body. It is sometimes referred to as a “bridge to transplant” since it can help a patient survive until a heart transplant can be performed. (AR 416-24). A surgical pathology report indicated that plaintiffs heart muscle tissue showed “severe acute and chronic ischemic change.” (AR 637). Approximately six hours after plaintiffs initial VAD placement surgery, he required an additional surgery because the VAD had malfunctioned, and plaintiff had experienced hemodynamic instability. (AR 649-50). On May 19, 2002, plaintiff underwent yet another surgery involving revision of the left VAD. (AR 651-52).

14.Plaintiffs Ohio hospitalization lasted for more than a month. (AR 506-07, 604-52, 770-75). On June 27, 2002, Mr. Rabuck was discharged to Columbia Presbyterian Hospital for further recovery. Plaintiff was added to Columbia Presbyterian Hospital’s heart transplant list. The Ohio discharge summary provided a one-paragraph summary of plaintiffs lengthy hospital treatment. Among other things, it states, “Once anoxic brain injury was ruled out, arrangements were made to place a left ventricular device, which occurred on 05/13/2002.” (AR 604). The discharge summary included the following list of medical complications that plaintiff had experienced:

Ventricular tachycardia/ventricular fibrillation arrest, atrial fibrillation, is-chemic hepatitis, aspiration pneumoni-tis, axonic enchalopathy, acute tabular necrosis and acute renal failure, respiratory failure, acute respiratory distress syndrome, pancreatitis and a short term memory deficit.

(AR 506, 604). The discharge summary described plaintiffs condition on June 27, 2002 as “good,” but stated that plaintiffs short-term memory deficit persisted. (AR 506, 604).

15. Although medically prohibited from driving (AR 507, 605), plaintiff nonetheless returned to work at Precision Manufacturing on July 17, 2002. (AR 316). He worked with the assistance of his ventricular assistance device during the months he was awaiting his heart transplant. (AR 316, 331).

16. On October 8, 2002, plaintiff underwent a heart transplant, and his left ventricular assist device was removed. (AR 661-62; see also AR 443-44). Plaintiff remained hospitalized until October 23, 2002. (AR 327). Plaintiff returned to work in December of 2002. (AR 331).

17. On March 14, 2003, plaintiff was hospitalized when testing revealed a bone marrow suppression of unknown etiology and a suspected allograft rejection. (AR 299, 658).

18. New York Presbyterian Hospital records dated April 2, 2003, show that plaintiffs treating cardiologist, Mario Deng, M.D., of Columbia University’s College of Physicians and Surgeons, provided plaintiff with the name and address of a physician plaintiff could contact in Hann-over, Germany, if plaintiff experienced medical complications during a work-related trip to Germany from April 5, 2003 to April 12, 2003. (AR 296, 584-86).

19. On April 24, 2003, plaintiffs edema was “3 + ” and doctors initiated treatment with “TED stockings.” (AR 583). May 2, 2003 progress notes indicate that plaintiff was working between 8 and 10 hours per day, five days a week, and that he was experiencing fatigue. (AR 294). Plaintiffs edema was persistent. (AR 581).

20. On June 19, 2003, plaintiff experienced an acute rejection episode involving his transplanted heart. (AR 253, 284, 291, 711; see also AR 455). Plaintiffs legs displayed significant edema. (AR 580).

21. Plaintiff was hospitalized again on July 14, 2003. He had a three-day history of diarrhea and dark stools. Plaintiff had recently lost 10 pounds. On the date of his admission, plaintiff had chills and a fever of 101 degrees. (AR 281, 285-88, 525, 569-76, 653-57). Hospital admission notes state, “patient who has a type A personality has agreed to stay at least overnight.” (AR 680, 684). Doctors determined that plaintiff had experienced upper gastrointestinal bleeding. Plaintiff was treated with transfusions and a proton pump blockade. Endoscopies showed healing ulcers in the antrum as well as the descending colon. Plaintiff required intravenous antibiotics for treatment of sta-phloccal bacteremia. (AR 509).

22. On August 7, 2003, Dr. Deng described plaintiffs heart condition as stable. (AR 277).

D. Precision Manufacturing’s Board of Directors Requests Plaintiffs Resignation

23. “From December 2002 through September 2003 [Precision Manufacturing’s] Board attempted to work with Mr. Rabuck as a Board member and CEO but found he was incapable of performing the duties of CEO due to memory loss and related complications. He was asked to resign as CEO in September 2003.” (AR 331). “Mr. Rabuck’s memory loss adversely affected his ability to work with the Board, employees and customers. He would repeat himself constantly, ask the same questions repeatedly during conversations and then become agitated and confrontational when realizing his memory issue or having it brought to his attention. Precision Manufacturing Group is a small, high technology business and there were no other positions available for Mr. Ra-buck, especially given his memory loss problem. The Board attempted to work with and accommodate Mr. Rabuck, but it was not feasible.” (AR 331). Plaintiffs last day of work as Precision Manufacturing’s president was September 5, 2003. (AR 323, 945).

E. Application for Long-Term Disability Benefits

24. On September 8, 2003, plaintiff filed his application for LTD benefits. (AR 138, 252, 314, 323-29, 945-51). Two days later, as required by the Policy, he applied for social security benefits. (AR 321). Hartford was provided a copy of plaintiffs application for social security disability benefits. (AR 77).

25. On September 11, 2003, plaintiffs heart condition was described as stable. Plaintiffs blood pressure was 150/94. (AR 276, 565).

26. On September 16, 2003, Hartford’s claims examiner Joseph Wojcik conducted a telephone interview. Plaintiff related his history of a heart implant in April of 2002 and a heart transplant in October 2002. Plaintiff stated that his current treatment consisted of multiple medications, regular office check-ups, and regular heart tissue biopsies to monitor possible rejection of his transplanted heart. (AR 77). Plaintiff reported that he continued to experience memory problems, and was unable to sustain prolonged activities. He became fatigued easily and had no endurance. Plaintiff stated that he did not expect that he would be able to return to work at any occupation. Hartford’s notes concerning this telephone conversation indicate that plaintiff “was difficult to talk to, became upset quite easily” and that the interview was “kept short.” (AR 78). Hartford’s examiner sent plaintiff a letter on September 16, 2003, acknowledging Hartford’s receipt of his application for LTD benefits. Hartford stated that when it had completed its investigation, plaintiff would be notified of the outcome. (AR 31).

27. On September 16, 2003, a CT scan of plaintiffs chest showed a small right pleural effusion, nodular densities of the lower left lobe of unknown clinical significance, and a ventral hernia. (AR 176). A MUGA scan on the same date indicated qualitatively normal right and left ventricle functions. (AR 203).

28. On September 16, 2003, Hartford developed its “Claim Management Plan.” Hartford’s examiner wrote that plaintiffs attending cardiologist, Dr. Deng of Columbia University, did not appear to have assigned restrictions that would prevent plaintiff from returning to work. (AR 77). Hartford’s Claim Management Plan was to request detailed explanations of plaintiffs inability to work from his physician, to confirm the date plaintiff last worked as a result of his heart condition, and to obtain plaintiffs earnings records. (AR 77).

29. On October 7, 2003, a Hartford’s examiner wrote to Dr. T. Walsh at the Medical College of Ohio Hospital requesting, “Any inpatient or outpatient hospital records for the period of May 1, 2002 to the present.” (AR 30). The letter specifically requested the report of examination on admission, the history sheet, and the final discharge summary. (AR 30, 76). The same day, after reviewing plaintiffs file and conferring with plaintiffs former employer, the examiner concluded that Dr. Walsh’s records “were not necessary” because plaintiff had worked during the months after his heart attack and before his heart transplant:

Prompted by call to clmnt about medical records. I reviewed the file and again spoke with Andrea Badalamenti. The clmnt did not have any period of disability from 11/4/02 to 9/5/03, he worked. This would eliminate the need for medical records dating to 5/02. With a ldw [last date of work] of 9/5/03, BED [benefit effective date] would not be until 12/03. Concentration should now be on his medical condition at the time of BED. Will request office notes from Dr. Deng in early November with request that he complete PCE [a physical capacity evaluation]. Do not need records from Dr. Walsh, it is documented that the clmt had a heart transplant in 10/02.

(AR 76).

30. On October 9, 2003, Dr. Deng noted that plaintiffs blood pressure remained high. Plaintiff indicated that he generally felt well, but that his feet hurt when he walked. (AR 165, 556). Plaintiffs exercise stress test indicated an estimated ejection fraction of 53%. (AR 167). Echo-cardiography indicated at least mild mitral regurgitation and trace tricuspid valve regurgitation. (AR 168-71).

31. Hartford received plaintiffs medical records from Dr. Walsh at the Medical College of Ohio Hospital sometime before October 21, 2003. (AR 75).

32. Hartford’s records dated October 21, 2003, under the heading “MCCM [medical clinical case manager] REFERRAL,” show that Hartford was aware of the “éx-tremely stressful” nature of plaintiffs occupation as a company president:

Clmnt is a 56 yr old male who last worked on 9/5/03 due to headaches, chest pain, HTN. He is status post heart transplant 10/02. He was president of the company. Benefit effective date 12/6/03.

In reviewing the medical records from Dr. Deng, it is noted that'the clmnt was hospitalized twice in 2003 since having transplant. Records show clmnt experienced rejection symptoms. He had complaints of headaches and chest pain. Although the clmnt’s own occupation is somewhat sedentary, this type of work involves extremely stressful situations.

Medical information does appear to support a claim of disability throughout and beyond the elimination period of 9/6/03 through 12/6/03. The clmnt’s condition does not' áppear that it would improve unless he has another transplant. I believe his condition would preclude him from rtw [returning to work] to his own oec [occupation].

(AR 75).

33.On October 28, 2003, a nurse practitioner employed by Hartford drafted what she labeled as a “CCM functional assessment.” Hartford’s employee was dismissive of plaintiffs memory problem, and categorized it as being a subjective complaint, similar to plaintiffs claims of frequent fatigue and poor endurance. (AR 73). Hartford’s nurse practitioner’s report concluded with the following entry:

A: CLMT HAS A JOB THAT IS SEDENTARY/LIGHT IN PHYSICAL DEMANDS BUT DOES INVOLVE HIGH LEVELS OF STRESS. HE WAS ABLE TO MAINTAIN HIS WORK DUTIES FOR THE PAST 10 MONTHS IN SPITE OF HIS CHRONIC MEDICAL' PROBLEMS. HE DID HAVE SOME PROBLEMS WITH HIS BLOOD PRESSURE AT THE TIME HE LEFT WORKFORCE THIS DISABILITY*003 PERIOD BUT WE DO NOT HAVE ANY INFORMATION AFTER THAT. HIS LTD BENEFITS WILL NOT BECOME EFFECTIVE UNTIL 12/6/2003. CLMT' INDICATES THAT HE HAS PROBLEMS WITH MEMORY, FATIGUE, AND ENDURANCE BUT THESE SYMPTOMS ARE NOT NOTED IN ANY OF HIS OFFICE NOTES. HE HAS HAD EPISODICAL MEDICAL PROBLEMS THAT TEMPORARILY CAUSED HIM TO STAY OOW [out of work] BUT HE HAS ALWAYS BEEN ABLE TO RTW [return to work] WITHIN A SHORT PERIOD OF TIME. HE HAS HAD ONLY ONE EPISODE OF TRUE REJECTION SINCE HIS TRANSPLANT A YEAR AGO AND ONE OTHER ILLNESS THAT LANDED HIM IN THE HOSPITAL BUT ONLY KEPT HIM OOW FOR A SHORT TIME. IT HAS BEEN ALMOST 2 MONTHS SINCE THE DATE OF THE LAST MEDICAL INFORMATION WE HAVE IN THE FILE AND AT THAT POINT THE CLMT WAS GOING FOR FURTHER DIAGNOSTIC TESTING. WE WILL NEED TO FIND OUT WHAT THAT TESTING SHOWED AND HOW CLMT HAS DONE SINCE THEN. IF HE IS AGAIN STABLE WILL NEED TO FIND OUT WHAT LIMITATIONS HE HAS NOW THAT WOULD KEEP HIM OOW AND WHY. IT IS TOO EARLY NOW TO DETERMINE WHETHER HE WILL STILL BE DISABLED BY THE BENEFIT EFFECTIVE DATE IN DECEMBER. WILL ALSO NEED TO GET AN OA [occupational assessment] TO SEE IF THIS JOB DEMAND IS THE SAME IN THE NATIONAL ECONOMY.

(AR 74).

34.The following entry appears in Hartford’s records for October 29, 2003:

10/29/03 RECEIVED A CALL FROM MARY THE NURSE ON THE TRANSPLANT TEAM. SHE INDICATES THAT CLMNT IS STILL NOT MEDICALLY STABLE. HIS BLOOD PRESSURES ARE STILL NOT WELL CONTROLLED. HE ALSO WAS FOUND TO HAVE BILATERAL PLEURAL EFFUSIONS AND WILL BE RE-EVALUATED NEXT WEEK TO SEE IF THEY NEED TO DO ANYTHING ELSE. HE IS NOW KEEPING A BLOOD PRESSURE DIARY SO THEY CAN GET A BETTER HANDLE ON HIS BLOOD PRESSURES. WILL RETURN FILE TO EXAMINER FOR FURTHER HANDLING. WOULD RECOMMEND F/U FOR UPDATED MEDICAL INFORMATION IN A FEW WEEKS TO ASSESS CLIMT’S CAPACITY CLOSER TO THE BENEFIT EFFECTIVE DATE. IF HE IS MORE STABLE THEN HE MAY BE ABLE TO RTW. S. WORLEY NP.

(AR 73).

35. On December 6, 2003, the three-month benefit Elimination Period under the Policy ended.

36. Sometime before December 9, 2003, Dr. Deng completed Hartford’s Physical Capacities Evaluation form. Dr. Deng stated that in an eight-hour workday plaintiff could sit for two hours, stand for one hour and drive for two hours. He stated that plaintiff could occasionally life and carry a maximum of 10 pounds. Plaintiff could occasionally “push/pull” a maximum of 10 pounds. Dr. Deng stated that plaintiff should never climb, balance, crouch, crawl, or reach above shoulder level. He could perform tasks requiring occasional feeling, fingering, handling, reaching at or below waist level, stoop and kneel. Plaintiff could not perform work requiring repetitive use of his feet or hands. Dr. Deng wrote that plaintiff was immunosuppressed and could not be exposed to dust, mold, spores, construction sites, fresh flowers, colds or flu. Dr. Deng indicated that plaintiff had reached his maximum medical improvement and that the restrictions imposed were permanent. Dr. Deng did not indicate that plaintiff could return to work at his regular occupation or in a lighter duty occupation. (AR 232-83, 910-11).

37. Dr. Deng’s January 8, 2004 progress notes record plaintiffs complaints of loss of short-term memory function. (AR 162, 555). A cardiac catheterization biopsy on that date did not indicate evidence of rejection of the transplanted heart. (AR 195). Progress notes state that plaintiff continued to experience lower extremity neuropathy. (AR 162).

38. On January 9, 2004, a Hartford examiner summarized his telephone conversation with Dr. Deng as follows:

Spoke with Dr. Deng. He reports that although the clmt is considered stable post transplant, the clmnt remains high risk for heart failure. He has multiple medical problems including uncontrolled hypertension, renal failure, and bleeding ulcers. Clnmt’s blood levels are monitored regularly. Yesterday’s blood work showed clmnt’s creantine to be high with triglycerides over 400. In addition, Dr. Deng reports that the clmnt’s immune system is diminished making him susceptible [ ] to colds and infections which in his case could be fatal. He does not believe that the claimant can rtw to own occ. His opinion for any occ is guarded due to the chronic medical problems that the clmnt is suffering from.

(AR 69). Thereafter, the examiner wrote that plaintiff was approximately fifteen months post heart transplant. Plaintiff continued to suffer from hypertension, renal failure, depressed immune system and bleeding ulcers. He noted that Dr. Deng had indicated that plaintiffs condition might stabilize, “it would most likely not improve.” (AR 68). The examiner concluded that plaintiff had presented satisfactory Proof of Loss to establish that he was disabled from performing the Essential Duties of his occupation. Plaintiff did not appear to be a rehabilitation candidate and would be encouraged to pursue a social security disability claim. Given the “high benefit” payable by Hartford to plaintiff, plaintiffs file was referred to another Hartford examiner for a “sign off.” (AR 69). On September 16, 2004, the second examiner agreed with the recommendation and approved plaintiffs claim for LTD benefits. (AR 69).

F. Hartford’s Approval of Mr. Ra-buek’s Application for LTD Benefits

39. On January 20, 2004, Hartford notified plaintiff that his claim for long-term disability benefits had been approved. (AR 25, 224). Hartford’s notice stated, “Benefit payments will continue, subject to the terms and limitations of the policy, while you meet the policy definition of Disability.” (AR 25). “In no event, however, [would] benefits be payable beyond 04/12/2013.” (AR 26).

40. Hartford’s notice (AR 26) advised plaintiff that Hartford intended to reduce plaintiffs monthly LTD benefits by $1,602.00, based on Hartford’s estimate of plaintiffs social security disability benefit award.

G. Hartford’s Demands After January 20, 2004

41. After Hartford began paying plaintiff LTD benefits, Hartford’s employees started calling and writing to plaintiff and/or his treating cardiologist on an extremely frequent basis, directing them to complete various forms and to submit requested records.

42. On February 25, 2004, Hartford’s examiner Wojcik directed plaintiff to provide Hartford with an “update about your application for Social Security- Disability (SSD) benefits.” (AR 23). Hartford anticipated that the Social Security Administration would find that plaintiff was totally disabled. Therefore, Hartford reduced Mr. Rabuck’s LTD benefits:

We do have information that you did apply for Social Security Disability on September 5, 2003. According to our records, if the Social Security Administration were to award you benefits, the benefit effective date would be March 1, 2004. To date we have not been provided with information showing that the Social Security Administration has made a decision about your claim. As a result, we are placing an estimated Social Security award on your claim in the amount of $1602 effective April 1, 2004. Your Current Monthly Benefit would be reduced by this amount.

(AR 23, see also 67). Hartford’s letter advised plaintiff of the steps Hartford would require him to take if the Social Security Administration denied his application for disability benefits. (AR 23).

43. On March 17, 2004, Hartford’s examiner Steven Craven contacted plaintiff by telephone. (AR 66). Plaintiff reported that he was unable to tolerate physical activity and that he did not anticipate being able to return to work in any occupation. (AR 67). Plaintiff stated that he had received a telephone call from the Social Security Administration indicating that he would be awarded disability benefits, but had no further details. Examiner Craven, “Advised him [that] he may [have] be[en] overpaid” and directed plaintiff to provide Hartford with a copy of his social security disability award when he received it. (AR 67).

44. On March 30, 2004, Mr. Craven wrote a letter to plaintiff directing plaintiff to provide the following:

On January 20, 2004 and February 25, 2004 we wrote to you, requesting completion of a LTD Payment Options and Reimbursement Agreement. Our February 25, 2004 letter asked you to complete a Claimant. Questionnaire and Social Security Administration Consent for Release of Information. To date, we have not received any of these forms, which are needed to properly document your LTD claim. Therefore, we have enclosed additional copies of these forms, which you should complete in full and return to our office by April 20, 2004.

In addition, once you receive your Notice of Award for Social Security Disability (SSD) benefits from the Social Security Administration, we ask that you forward a copy to our office. Please be advised that if we do not receive either your SSD award or completed Social Security Authorization form by April 20, 2004, we will have no alternative but to calculate an overpayment on your LTD claim based on an estimate of your SSD rate. A self-addressed envelope is included for your convenience in replying.

(AR 22).

45.On April 11, 2004, plaintiff signed Hartford’s Claimant Questionnaire. (AR 221). Plaintiff reported that he suffered from a severe cognitive impairment which made it difficult to manage either his finances or his medications. (AR 217). On April 11, 2004, plaintiff also signed the form authorizing the Social Security Administration to release information regarding his social security disability benefits to Hartford. (AR 221). Finally, plaintiff signed Hartford’s “LTD Payment Options and Reimbursement Agreement.” (AR 222). The document stated that the policy provides that LTD benefits will be reduced by the amount of any other income benefits which plaintiff was eligible to receive. The agreement specified that plaintiffs social security disability benefits were “other income” benefits. Plaintiff selected “Option A” of the Agreement which states: “Please estimate the amount of my monthly income benefits and reduce my monthly long term disability benefit by this amount. The Hartford will adjust my monthly LTD benefit rate when they receive proof showing the other income benefits awarded or proof of denial.” (AR 222).

46. On April 21, 2004, Hartford’s examiner Craven wrote to the Social Security Administration stating, “We insure the above named individual for Long Term Disability benefits.” (AR 19). Hartford specified the information it required from the Administration “[i]n order to determine the correct benefit payable.” (AR 19). Enclosed with Mr. Craven’s letter was plaintiffs signed authorization for the release of information by the Administration.

47. On April 21, 2004, Mr. Craven wrote letters on Hartford’s behalf addressed to Dr. Deng and plaintiff. (AR 20, 21, 188, 846, 898). The letter to Dr. Deng directed him to provide copies of his office notes for the period of October 10, 2003 through April 21, 2004. It also directed Dr. Deng to complete an enclosed Physical Capacities Evaluation form. (AR 21). The letter to plaintiff asked him to contact Dr. Deng to ensure that Hartford received the requested information by May 12, 2004. (AR 20). Plaintiff was also advised that Hartford was not satisfied with his Other Income Questionnaire:

In addition, the Other Income Questionnaire we received from you on April 14, 2004 was not completed and this information is needed to properly document your LTD claim. Therefore, we have enclosed the Other Income Questionnaire, which you should complete in full and return to our office by May 12, 2004.

(AR 20).

48. On April 26, 2004, Mr. Craven spoke with plaintiff on the telephone regarding plaintiffs social security disability benefits and its impact on Hartford’s payment of LTD benefits. (AR 65).

49. On April 27, 2004, Dr. Deng signed another physical capacities evaluation form indicating that plaintiff could work a maximum of 4 hours per day, but indicated that plaintiff had an improved exertional capacity. (AR 834-35).

50. The Social Security Administration determined that plaintiff was disabled, and it awarded benefits effective March 2004. (AR 16, 125). On April 27, 2004, the Social Security Administration provided Hartford with the statement Hartford had requested concerning plaintiffs social security disability benefits. (AR 64, 212-13).

51. Plaintiffs April 29, 2004 cardiac catheterization did not reveal any evidence of medical complications. (AR 155, 158). Dr. Deng’s notes described plaintiff as being “cardiac stable.” (AR 157). Plaintiff complained of decreased endurance and lower extremity edema. (AR 554). The words “golfing/fishing” appear at the bottom of the same page, with nothing else to provide context. (AR 157). Plaintiffs April 29, 2004 “lymphocyte growth assay result” indicated that plaintiff was “at high risk for a high-grade cellular rejection within the next three months.” (AR 357).

52. On June 5, 2004, Mr. Craven wrote plaintiff a letter directing that plaintiff provide Hartford with a personal check or money order for $2,412.05 within fifteen days. Hartford had calculated that plaintiffs receipt of social security disability benefits during the period of March 1, 2004 through May 31, 2004, had resulted in an overpayment of $2,412.05. (AR 16). Hartford directed plaintiff to provide it with documentation confirming the date his New Jersey disability benefits expired. (AR 18). Mr. Craven’s letter concluded with a request that plaintiff contact Dr. Deng on Hartford’s behalf:

Finally, on April 21, 2004 we wrote to Dr. Deng, requesting his office notes and test reports on you since October 10, 2003, as well as his completion of a Physical Capacities Evaluation Form on you. Subsequently, on May 3, 2004 we received Dr. Deng’s completed Physical Capacities Evaluation Form and his test reports on you through April 29, 2004; however, we have not received Dr. Deng’s office notes on you since October 10, 2003, which are needed to evaluate your continued eligibility for LTD benefits. Therefore, we ask that you contact Dr. Deng to ensure that the requested office notes are submitted to our office by June 21, 2004.

(AR 18).

53.On June 7, 2004, a Hartford employee conducted an occupational analysis limited to the physical exertional requirements of the occupation of company president:

An Occupational Analysis has been completed and the Essential Duties and corresponding demands for EE’s OWN OCCUPATION for ER [exer-tional demands] (L[I]GHT) are greater than OWN OCCUPATION in the NATIONAL ECONOMY (SEDENTARY) as defined and classified in the Title President DOT [Dictionary of Occupational Titles] Code: 189.117-026; Plans, develops, and establishes policies and objectives of business organization in accordance with board directives and corporation charter. OWN JOB: sit/stand/walk frequently OWN OCC: lift 10# max

(AR 63).

54. On June 10, 2004, Mr. Craven contacted plaintiff by telephone. Plaintiff reported that he continued to experience problems with his short-term memory and endurance. Plaintiffs wife performed most of the household chores. Mr. Craven again inquired regarding plaintiffs social security disability benefits. Plaintiff related to Mr. Craven of the social security disability benefits that plaintiff was then receiving. (AR 62).

55. On June 10, 2004, Mr. Craven wrote letters directed to plaintiff and Dr. Deng. (AR 14, 15). His letter to Dr. Deng enclosed a paper identified as an Occupational Description/Occupational Requirements form and requested the following information from Dr. Deng:

Enclosed is a copy of the Occupational Description/Occupational Requirements for Mr. Rabuck’s occupation as a President. Based on your review of this vocation information, we ask that you provide our office with a narrative report on Mr. Rabuck’s medical condition. Your narrative should state the most recent date Mr. Rabuck was examined, his current physical limitations and restrictions as well as his current and future course of treatment.

In addition, your narrative should provide your opinion whether or not Mr. Rabuck is able to perform the essential duties of his occupation as a President on a full time basis, including the clinical data/findings that support your opinion. When returning your narrative report to our office, we ask that you include your office notes on Mr. Rabuck since October 2003 (the records we received from you May 3, 2004 are your test reports on Mr. Rabuck and we need your actual office notes on Mr. Rabuck as well since October 10, 2003). We also ask that you submit the requested medical information to our office by July 1, 2004.

(AR 15). Hartford’s letter to plaintiff requested that plaintiff contact Dr. Deng and ask him to provide Hartford with the requested information on or before July 1,2004. (AR 14).

56. On June 14, 2004, Mr. Craven received a call from “Clmt’s partner” stating that every effort was being made to provide Hartford with the medical information that Hartford had requested. Mr. Craven’s notes recorded that, “Clmt’s partner asked why we were harassing the elmt.” (AR 61).

57. On July 8, 2004 (AR 13) and August 20, 2004 (AR 12), Mr. Craven sent plaintiff letters advising him that Dr. Deng had not provided a “narrative report” that Hartford had requested, and stated that if Hartford did not receive the report on or before September 10, 2004, plaintiffs LTD benefits would be terminated:

As stated in our July 8, 2004 letter to you, the narrative report we requested from Dr. Deng is needed to evaluate your continued eligibility for LTD benefits. Therefore we ask that you contact Dr. Deng to ensure the requested narrative report is submitted to our office by September 10, 2004 or we will have no alternative but to terminate your LTD claim.

(AR 12).

58. Plaintiffs July 22, 2004 echocard-iography revealed mild mitral valve regurgitation and tricuspid regurgitation. His left atrium was mildly enlarged. (AR 145). Plaintiffs ECG was classified as abnormal, showing “ST & T wave abnormality” and an “early R wave transition.” (AR 143^44, 147, 526).

59. On August 2, 2004, Mr. Craven called plaintiff and left a message stating that if he did not receive the requested medical information, he would be referring plaintiffs file for termination. (AR 60). Plaintiff returned Mr. Craven’s call on August 3, 2004. Plaintiff stated that he had written and e-mailed Dr. Deng, and that he had been told in response that all the requested medical information had been sent to Hartford. (AR 60).

60. On August 10, 2004, Mr. Craven indicated that his management plan for plaintiffs file was to send one more request for the narrative report to Dr. Deng, and that if Dr. Deng did not reply, plaintiffs benefits would be terminated. (AR 59).

61. Mr. Craven’s notes regarding an August 30, 2004 telephone call state as follows:

Clmt’s partner called, stating that she has had no success in getting a reply from Dr. Deng, that we should try calling Sue Cech (transplant coordinator that works under Dr. Deng) to clarify what is needed further as far as a narrative. Clmt’s partner asked what we needed further and why is this info needed, as they are being told that all req med info submitted to Hartford. I stated that I cannot discuss the specifics of the file with her, I would call Sue to see if she can assist in having req narrative submitted by Dr. Deng. I did state that ultimately it was the responsibility of the claimant to ensure req med info submitted.

(AR 59).

62. On September 2, 2004, Dr. Deng provided a lengthy written response to Mr. Craven’s inquiry:

Mr. Rabuek is a gentleman currently 57 years old who underwent orthotopic heart transplantation on October 8, 2002. Preceding he had an acute myocardial infarction in May of 2002 while on a fishing expedition and required care at Ohio State University including an emergency left main artery stenting-angioplasty procedure as well as left ventricular assist device implantation May 13, 2002, as well as a mechanical circulatory support device bridge to heart transplantation. After transfer to Columbia University, he was transplanted, as mentioned above on October 8, 2002.

After heart transplantation, he underwent, according to Columbia University Medical Center Protocol, triple im-munosuppression with overall stability regarding acute and chronic rejection episode.

He had a recent hospitalization in July 2003 for an upper gastrointestinal bleed originating July 4, 2003, and reversing on appropriate treatment that included blood transfusion and proton pump blockade. The control endoscopies showed healing ulcers in the antrum as well as descending colon. In addition, he required intravenous antibiotic for staphylococcal bac-teremia.

Following an acute treatment in 2003, Mr. Rabuek continued to be monitored in our Outpatient Transplantation Center at Columbia University Medical Center ... until he decided to relocate to Michigan in spring 2004. His current medications include Ner-oal 100 mg am and 75 mg pm, Cell-Cept 1500 mg twice a day, prednisone 5 mg am, Pravachol 40 mg qd, Ecotrin 81 mg qd, Lasix 40 mg qd, Cardizem 90 mg bid, enalapril 10 mg qd, multivitamin Materna 1 tablet qd, Citracal 3 tablets per day, ferrous gluconate 325 mg per day, Protonix 40 mg bid, Co-lace 100 bid as needed, Zetia 10 mg qd, and K-Dur 20 mEq qd.

The last biopsy performed on April 29, 2004, showed absence of acute cellular rejection and normal hemody-namics, with a right atrial pressure of 9mm Hg, wedge pressure of 14 mmHg, pulmonary oxygen pressure of 27/16/21, a pulmonary artery saturation of 71%. The biopsy grade was 1A (absence of relevant acute cellular rejection). Last echocardiogram performed on July 22, 2004, showed normal left and right systolic and diastolic function with only minor mitral regurgitation and tricuspid regurgitation.

In summary, Mr. Rabuek, át age 57, suffers from ischemic cardiomyopathy with an acute coronary event in May 2002, followed by a left ventricular assist device previous to heart transplantation, successful heart transplantation on October 8, 2002, currently in New York Heart Association Functional Class of 0-1. He has a very satisfactory post transplantation course regarding his transplanted heart function. As with all transplantation and organ recipients in general, the ongoing lifelong triple immuno-suppression requires a very detailed protocol of post transplantation events monitoring with an appointment every three months that include clinical visit, laboratory tests, electrocardiogram, x-rays, and either echo-cardiogram, or biopsies with right heart catheter. Based on this, his overall functional capacity although satisfactory is not quite back to complete normality because of the mentioned possibilities of rejection but also immunosuppression associated infection, renal dysfunction, bone dysfunction, neurological dysfunction, psychiatric dysfunction, gastrointestinal dysfunction, and skin dysfunction. With this in mind, returning to precision-type manufacturing will be difficult. A part-time employment based on his daily disposition is feasible.

(AR 139-40, 508-09, 842-45; see also AR 459-77).

63. On September 16, 2004, Mr. Craven expressed his opinion that the medical evidence did not appear to support the level of restriction specified by plaintiffs treating cardiologist, Dr. Deng. (AR 58).

64. Plaintiff had a squamous cell carcinoma surgically removed from his right forearm on September 2, 2004. (AR 551, 750, 753).

65. On November 4, 2004, the Social Security Administration issued a Notice of Change in Benefits to Mr. Rabuck. The notice specified that the Social Security Administration was increasing plaintiffs benefit amount to give him credit for additional earnings that were not included in the Administration’s earlier benefit calculations. (AR 136-37). The notice was forwarded to Hartford. (AR 135). On December 17, 2004, Hartford acknowledged its receipt of the notice. It further advised that the increase in social security benefits had resulted in an overpayment to plaintiff which was immediately deducted from plaintiffs December 2004 LTD disability benefit payment. (AR 11).

66. On January 14, 2005, Mr. Craven wrote a letter to Dr. Deng. (AR 9-10, 119-20). This letter acknowledged receipt of Dr. Deng’s September 2, 2004 response to Mr. Craven’s inquiry. The letter represented that telephone calls had been placed to Dr. Deng on November 3 and November 12, 2004, and further represented that messages had been left “asking for a parttime return to work note for Mr. Rabuck, including the date Mr. Rabuck [could] return to work part-time, the number of hours he [could] start working at, as well as [Dr. Deng’s] plan to increase Mr. Rabuck’s hours to full time.” (AR 9, 119). Mr. Craven’s letter asserted that plaintiffs occupation as generally performed in the national economy did not require performing precision-type manufacturing, and directed Dr. Deng to provide updated medical records and a specific plan for plaintiffs return to work on a full-time basis:

As shown on the enclosed Occupational Description/Occupational Requirements for Mr. Rabuck’s occupation as company President, his occupation in the national economy is a Sedentary occupation that does not require performing precision-type manufacturing. Your September 2, 2004 narrative states that Mr. Rabuck’s April 29, 2004 biopsy was normal and his July 22, 2004 echocardiogram showed normal systolic/diastolic function with only minor mitral/tricuspid regurgitation. In order to evaluate Mr. Ra-buck’s continued eligibility for LTD benefits, we find additional information on Mr. Rabuck’s medical condition is needed from you.

Therefore, we ask that you provide our office with a brief narrative stating the date Mr. Rabuck can return to work part-time, the number of hours he can start working at, as well as your plan to increase Mr. Rabuck’s hours to full time. We also request that you provide our office with your office notes/test reports on Mr. Ra-buck since July 23, 2004. A self-addressed envelope is included for your convenience in replying by February 4, 2005.

(AR 9).

67.On January 28, 2005, Dr. Deng provided the following written response to Mr. Craven’s inquiry:

Thank you very much for your letter dated January 14, 2005, related to my patient, Robert Rabuck.

As you summarized, on September 2, 2004, we detailed or assessment that based on his history of ischemic car-diomyopathy, status post HeartMate I[] Assist Device Transplantation on May 15, 200[2] and heart transplantation on October 8, 200[2], with an overall satisfactory status post heart transplantation, he would be capable of returning to part-time work, in his position as company president. This assessment is based on an assumption of an overall satisfactory posttran-splantation course. The posttran-splantation course with some likelihood of rejection episodes, infection episodes, and also organ dysfunction episodes related to imunosuppressive therapy make it likely that part time employment which in our opinion can start as of February 1, 2005, will continue indefinitely. Thus, we do not have a current plan of transitioning to full-time employment.

(AR 116, 121, 150).

68. February 2005 echocardiography indicated that plaintiff was “tachycardie.” His left atrium was mildly dilated and his left ventricle appeared to by hypertrophied. Mild mitral regurgitation was observed. (AR 547).

69. A February 14, 2005 entry in Hartford’s case management plan recorded that, “Dr. Deng continues to feel that no FT [full-time] RTW [return to work] will ever be possible based on the high likelihood of rejection/infection/organ dysfunction — according to Dr. Deng. Dr. Deng feels that these MAY occur because of EE’s [the employee’s] ongoing immuno-suppressive TX. Dr. Deng has no plan in mind for any increase in working hours back to FT.” (AR 49). The entry went on to state the following:

Because EE [the employee] remains in the Own Occupation phase it would be reasonable to contact the ER [employer] to see if they can take EE back in a PT [part-time] capacity. There is also the issue of whether or not the job is currently available w/EE’s former ER. The issue of Dr. Deng not wishing to project that EE can ever RTW [return to work] full time can be further explored/addressed once EE has in fact gone back to work. We may wish to pursue a Peer review of the file by the UDC [University Disability Consortium] to determine when and if EE has the capacity for full time work.

(AR 49).

70. Hartford’s March 3, 2005 records reflect Hartford’s awareness that it was “very unlikely” that plaintiffs employer would take plaintiff back as company president on a part-time basis. (AR 47). The Hartford examiner was “unsure that EE could not perform his own occupation on a full time basis, based on the apparent ‘preventative’ measures outlined by the [attending physician] AP.” The entry concluded, “in terms of liability, we agreed possibly more appropriate to address maximum function at this time.” (AR 47).

71. Hartford’s records dated March 23, 2005, show that it intended to move forward with UDC Peer review. Ms. French, a nurse employed by Hartford, stated that she was “unsure of the medical soundness of Dr. Deng’s position that at PR RTW would be less risky for ee than a FT RTW ....” (AR 46).

72. On April 27, 2005, Joseph A. Vita, M.D., generated a document captioned as a “Medical Record Review of Robert Ra-buck.” (AR 96-99). This document is not written on the letterhead of any medical practice or company. No address of employment is supplied for Dr. Vita. The letter-report is addressed to Ms. Cynthia French at a Hartford’s Syracuse office. Dr. Vita’s name appears at the end of the letter, followed by a statement that Dr. Vita is board certified in cardiology. (AR 99). The terms under which Hartford paid for Dr. Vita’s review of Mr. Rabuck’s records are not specified. Elsewhere in the record there is an invoice from University Disability Consortium to Hartford in the amount of $1,125.00 consisting of a $112.50 administrative fee and $1,012.50 for Dr. Vita’s time attempting to contact Dr. Deng by telephone, reviewing plaintiffs medical records, and preparing Vita’s 4-page letter-report. (AR 109). Dr. Vita summarized his assignment from Hartford as follows: “I am asked to review medical records on Mr. Robert Rabuck and speak to the attending cardiologist. I am asked to comment on his work capacity.” (AR 96). Dr. Vita documented his unsuccessful efforts to contact Dr. Deng by telephone over a one-week period in April 2005. Dr. Vita never spoke to plaintiffs treating cardiologist, Dr. Deng. Dr. Vita never examined plaintiff or treated plaintiff. Dr. Vita did not perform any tests, or even reference any medical or vocational literature supporting his conclusions. Vita’s discussion of approximately three years of plaintiffs medical records spans a total of less than two full pages of double-spaced text. (AR 96-97). The fourth page of Vita’s letter-report, other than a single sentence, is devoted to Dr. Vita’s signature. The remaining page, plus the sentence that carried over onto page 4, states as follows:

SUMMARY AND COMMENT: The claimant is a 58-year-old man with ischemic cardiomyopathy and heart transplantation in 2002. The available notes indicate that the claimant has done well and has an excellent functional capacity, including the ability to play golf and fish. He is on a typical medical regimen to prevent rejection and treat his blood pressure and hy-percholesterolemia. Repeated notes indicate that his cardiac condition is stable. Although immunosuppressed, return to work is not contraindicated in heart transplant patients. Typically, such patients must take care about contact with individuals with possible infections, use measures such as hand sanitizers, and to avoid mold, dust, and temperature extremes, as indicated by Dr. Deng.

In his letter from 9/2/2004, Dr. Deng listed a number of systems that had the potential to be “dysfunctional”, but presents no evidence that any of these conditions are present or are limiting the claimant. Based on the available records, I do not find Dr. Deng’s arguments convincing. In my opinion, the claimant has the functional capacity to return to full-time (8 hours/day) sedentary work, with the restriction that he avoid direct contact with individuals with possible infection, use a hand sanitizer, and avoid mold, dust and temperature extremes. RESPONSE TO SPECIFIC QUESTIONS:

1. Do you find any clinical rationale for the position that this claimant can return to work part time as a company president, but lacks the capacity to work at that occupation full time?

I find no convincing clinical rationale for this position. The records suggest that the claimant is NYHA Class I and is capable of full time sedentary work.

2. Dr. Deng has stated that he has no return to work plan for this claimant. Do you find medical support to limit the claimant long term in this way?

As noted above, I find no medical support for this limitation.

3. Does the claimant retain the functional capacity to engage in full time, essentially sedentary level work that would include PC activities, keyboarding, chairing meetings, etc.?

All of this occupational activity could be completed in a typical office environment to which the claimant has been released on a part time basis. Dr. Deng has assigned no other restrictions or limitations to the duties the claimant could perform as company president.

In my opinion, the claimant has the functional capacity to engage in full time, essentially sedentary level work. (AR 98-99).

73. Hartford never requested or required that plaintiff undergo physical or mental status examinations by any medical professional. At all times, Hartford restricted its inquiry to review of medical records by persons Hartford had employed or retained for that purpose.

74. On May 9, 2005, Susan L. Cech, a cardiac transplant nurse practitioner at New York Presbyterian Hospital, wrote that plaintiffs condition warranted consultation services by a lipid specialist. Plaintiffs tests showed: “tchol 245, trig 826, and HDL of 49.” (AR 514).

75. On May 12, 2005, Ms. French noted Hartford’s receipt of Dr. Vita’s report. French wrote, “A consensus of opinion has been reached between this office and that of Dr. Vita, cardiologist for UDC, that EE retains the FCP to RTW, FT to his own former SED. level occupation as Company President. Dr. Deng has declined to be included in a physician to physician discussion about Dr. Vita’s Peer review of this file and was advised in the AP notification letter that if the UDC physician was unable ,to speak w/him about this review we would have no option but to base a final determination of the function on the information already at hand and the conclusions of Dr. Vita.” (AR 42).

76. Hartford’s file contained the Dictionary of Occupational Titles (DOT) code for president, any industry (189.117-026). It indicated that the general educational development required for company president is as follows: “Reasoning, Level 5; Mathematics, Level 5; Language, Level 5.” (AR 182). The skilled nature of the position of company president is reflected in specific vocational preparation level of 8 (4-to-10 years). The occupation is classified as sedentary in its exertional requirements. Sedentary work involves lifting, carrying, pushing or pulling up to 10 pounds occasionally. Sedentary work is primarily performed while sitting, but may involve standing or walking for brief periods of time. (AR 182). Hartford’s file also contained an 0*NET SOC Code classification for private sector executives: 11-1011.02. The tasks listed for this occupation reflect significant responsibilities and rigorous mental demands:

Tasks:

1. Confers with company officials to plan business objectives, to develop organizational policies to coordinate functions and operations between divisions and departments, and to establish responsi