Parker v. Vulcan Material Company Long Term Disability Plan (670 F. Supp. 2d 983, 2009)

ORDER AFTER BENCH TRIAL

STEPHEN G. LARSON, District Judge.

This action came on regularly for bench trial before the Honorable Stephen G. Larson on May 19, 2009, with Paul Fleishman and Charles J. Fleishman on behalf of Plaintiff Janice Parker (“Parker” or “Plaintiff’) and Edith S. Shea on behalf of Defendant Vulcan Materials Company Long Term Disability Plan (“Vulcan” or “Defendant”). Plaintiff brought suit against defendant pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”). Plaintiff, as beneficiary of the relevant long-term disability benefits plan, seeks to recover benefits from July 1, 2006 (the date her long term disability benefits were terminated) to the present. The Court, having heard the evidence, finds the facts and states the conclusions of law as appears below.

I. FINDINGS OF FACT

A. Policy Provisions

On January 1, 1997, Continental Casualty Company (“Continental”) issued group long term disability insurance policy number SR 83096484 (“the Policy”). Administrative Record (“AR”) 477-515, 712-729 to benefit the employees of the former defendant Vulcan Materials Company, including plaintiff. The Hartford Life, Inc., and Hartford Life and Accident Insurance Company (“Hartford”) later acquired the Policy and made the final decision on Plaintiffs claim. Id. at 208-213.

The Policy defines total disability:

“Total Disability” means that, during the Elimination Period ... the Insured Employee, because of Injury or Sickness, is:

(1) continuously unable to preform the substantial and material duties of the Insured Employee’s regular occupation;

(2) under the regular care of a licensed physician other than the Insured Employee; and

(3) not gainfully employed in any occupation for which the insured Employee is or becomes qualified by education, training or experience.

Id. at 502.

The Policy has a mental or emotional disorder exclusion and does not cover any loss caused or resulting from a “[disability beyond 24 months after the Elimination Period if it is due to mental or emotional disorders of any type.” Id. at 503. The Policy, however, will not apply the mental or emotional disorder exclusion to a number of conditions, including dementia if it is a result of stroke, trauma, viral infection, Alzheimer’s disease, or other conditions not listed which are not usually treated by a mental health provider or other qualified provider using psychotherapy, psychotropic drugs, or other similar methods of treatment. Id.

The Policy provides that, should a beneficiary become disabled within the meaning of the Policy, he or she would receive monthly benefits after the expiration of a 180 day elimination period. Id. at 502, 639.

B. Plaintiffs Employment and Short Term Disability Claim

Plaintiff worked at Vulcan beginning in March, 2002, as a Real Property Records Manager/Legal Secretary. Id. at 1142, 1148.

Plaintiff began seeing psychiatrist Dr. Leslie Brothers on September 27, 2001, for anxiety and depression. Id. at 1142, 1145. In August of 2003, Plaintiff applied for and began receiving short term disability benefits and cut her work hours to 20-26 hours per week. Id. at 1122, 1145. Plaintiff received $633.92 in California state disability benefits, and $744.53 through Vulcan’s short term disability policy. Id. at 1144.

C. Plaintiffs Long Term Disability Claim

Plaintiffs condition worsened and on May 3, 2004, Plaintiff filed a long term disability claim with Vulcan. Id. at 1142. As her primary treating physician, Dr. Brothers cited anxiety and depression as the primary diagnosis on Plaintiffs long term disability claim form.

On May 7, 2004, Vulcan submitted Plaintiffs claim for long term disability benefits to Hartford for approval. Id. at 1141. Upon receipt of the claim, Hartford requested a functional assessment from Dr. Brothers to evaluate Plaintiffs long term disability claim. Id. at 1124. Dr. Brothers submitted the following functional assessment to Hartford on May 24, 2004, along with her office notes and records:

1. The patient is limited in all functions due to low energy and difficulty concentrating.

2. I expect further reduction in work hours will soon be necessary.

3. After some months of rest and full-time attention to her physical health needs, she may be able to return to 40 hours/week employment in fall, 2004.

4. Ms. Parker is not able to perform any tasks full time.

Id. at 1124-1133.

D. Hartford Investigates Long Term Disability Claim

On June 8, 2004, Hartford telephoned Plaintiff to review her claim for long term disability benefits. Id. at 582. On the call, Plaintiff explained that she had anxiety, depression, insomnia, and could not concentrate. Id. at 583. When asked the cause of the anxiety problem, Plaintiff responded that it was “family stuff,” relationships, her physical health, various nutritional deficiencies, hypothyroid, possible adrenal problem, and mercury poisoning. Id. at 583-584. Plaintiff said that she was currently worried, stressed about things, and had difficulty making decisions. Id. at 584. Plaintiff said that her goals for treatment were to work on anxiety reduction, coping skills and communicating with others. Id. at 586. Before ending the conversation, Plaintiff listed her daily medications: Remeron (3.75 mg), Buspar (60 mg), Neurontin (1600 mg), Xanax (0.5 mg), Acifex for acid reflux, Compazine for nausea, Protoniz for gastric distress, and various supplements for digestion, pain and brain. Id. at 586-587.

During this time, Plaintiff also saw two other doctors: Plaintiff sought treatment with psychologist, Dr. Connie Call; and later on August 9, 2004, Plaintiff treated with another psychologist, Dr. Nadine Winocur. Id. at 1120,1091.

Dr. Call prepared a treatment summary which reviewed Plaintiffs history of medical conditions beginning in 2002. Id. at 1120-1123. The following summary reflects that history as set forth by Dr. Call: Around March 2002, Plaintiff sustained an ankle injury which did not heal well, requiring the use of a single crutch. Id. at 1120. This caused frustration leading to further stress and exhaustion which exacerbated Plaintiff’s anxiety and depression, for which she was prescribed Xanax to help maintain emotional stability, allowing her to continue working 40 hours a week. Id. at 1120. In August of 2002, Plaintiff experienced myofascial pain and digestive difficulties due to a ill-fitting TMJ (temporomandibular joint) bit guard, which required her to puree all her food. Id. at 1120. This condition isolated her at lunch from her co-workers, deepening her depression and creating greater anxiety. Id. at 1121. Soon thereafter Plaintiff experienced diarrhea, abdominal pain and excessive hunger due to the digestive problems. Id. at 1121. Toward the latter half of 2003, Plaintiff described difficulty focusing on the job, anxiety related to physical pain, and concern over her work related errors (and resultant unsatisfactory work reviews). Id. at 1121. Dr. Call recommended adequate time away from work to focus on Plaintiffs medication management, self regulation through exercise and relaxation techniques, a more engaged social life, and continued psychotherapy to help her return to normal functioning. Id. at 1123.

Dr. Winocur also prepared a treatment summary which noted that Plaintiffs case “is complex due to interwoven emotional and physical health issues. Her emotional disturbance is also aggravated by the stress of financial problems and highly conflictual family relationships.” Id. at 1090. Dr. Winocur described Plaintiffs symptoms as including moderate to severe levels of anxiety and depression, negative self-image, and significant emotional distress secondary to physical health problems. Id. Dr. Winocur’s therapy with Plaintiff “involved overcoming traumatic life experiences and establishing affect management skills through corrective emotional experiences.” Id. at 1091. Dr. Winocur anticipated that it might be close to two years before Plaintiff could return to work. Id. at 1091.

E. Hartford’s Claim Decision

On July 22, 2004, Hartford mailed Plaintiff an approval letter for long term disability benefits and emphasized several key points:

• Hartford reiterated the Policy’s definition of “Total Disability.” Id. at 639.

• Plaintiffs long term disability benefits were approved for her mental nervous conditions of “Generalized Anxiety Disorder and recurrent Depression.” Id.

• Hartford determined that the period from August 12, 2003 through February 7, 2004, satisfied the Policy’s 180 day elimination period. Id.

• The Policy would “not cover any loss caused by or resulting from disability beyond 24 months after the elimination period if it is due to mental or emotional disorders of any type.” Id.

F. Hartford’s Continuing Review

On November 8, 2004, Hartford requested an updated functional assessment and notes from Dr. Brothers regarding Plaintiffs continued psychiatric treatment and progress from August 2004 to the then-present date. Id. at 1093. Dr. Brothers responded that Plaintiff still had difficulty concentrating, especially for long periods of time, and continued to have excessive fatigue which prevented sustained work effort. Id. Dr. Brothers noted that she had tried to reduce the dose of Plaintiffs anti-anxiety medication, but could not do so without worsening her symptoms. Id. Dr. Brothers also indicated that Plaintiff might be able to return to work around May 1,2005. Id.

Later, around June of 2005, Hartford again requested a further functional assessment and notes from both Plaintiff and Dr. Brothers, so that it could continue to assess her condition. Id. at 1079. Plaintiff wrote that there had been no improvement in her condition since the beginning of her disability and that, “I continue to see a psychotherapist and pursue physical health issues.” Id. at 1078. Dr. Brothers’ diagnosis of “recurrent depression” was unchanged, noting symptoms of difficulty concentrating, excessive fatigue, pain, and anxious demeanor upon examination. Id. at 1079. Dr. Brothers’ prognosis was that Plaintiff was totally disabled, and could not perform any duties requiring mental focus or sustained efforts. Id.

G. Plaintiff Supplements the Record and Makes a Physical Condition Disability Claim

On January 3, 2006, Plaintiff mailed a package to Hartford enclosing additional medical records from several of her doctors: Drs. Steven Harris, Ilona Abraham, Hans Gruenn, Cynthia Watson, Karl Epstein, Suzanne McCormick, Luis Albert; Martha Hierro, Rudolph Bedford, and Bernard Geller. Id. at 831.

In response, Hartford wrote Plaintiff a letter on January 8, 2006, reiterating that her long term disability benefits were approved based on a mental or emotional disorder and that it would not cover her loss beyond 24 months, or past February 7, 2006, for that condition. Id. at 608. Hartford also acknowledged that on December 2, 2005, Plaintiff notified Hartford by telephone, that she had disabling physical conditions and would submit information in support of them. Id. Hartford requested that Plaintiff submit the supporting information identified in her January 3, 2006 letter within 30 days. Id. Hartford cautioned that if it was not received timely, Hartford would make a determination based on the medical information currently on file, which might result in the denial or termination of her long term disability benefits. Id.

On January 31, 2006, Plaintiff mailed additional records to Hartford from Dr. Steven Harris, Dr. Martha Hierro, and Dr. Hans Gruenn in support of her physical disability claim. Id. at 803. Plaintiff mailed more records to Hartford March 24, 2006, from Dr. Harris and Dr. Abraham in support of her physical condition disability claim. Id. at 788.

Among these records was a letter written by Plaintiffs physician, Dr. Harris, dated January 16, 2006, stating that he had diagnosed Plaintiff with Lyme disease and co-infections, and that it was very important that Plaintiff remain free from additional stress. Id. at 807. Dr. Harris said that Plaintiff also was unable to return to work at that time because she was “completely disabled.” Id.

H. Hartford Responds to Plaintiffs Physical Condition Disability Claim

On April 17, 2006, Hartford wrote Plaintiff a letter addressing her request for consideration to extend long term disability benefits for her physical conditions beyond February 8, 2006. id. at 606. After again reminding Plaintiff of the time limitations for mental or emotional disabilities, Hartford set forth the Policy definition of Total Disability as it relates to physical conditions:

Disability means that during the Elimination Period and the following 24 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are:

1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and

2) not Gainfully Employed.

After the LTD Monthly Benefit has been payable for 24 months, Disability means that Injury or Sickness causes physical or mental impairment to such a degree of severity that You are:

1) continuously unable to engage in any occupation for which You are or become qualified by education, training or experience; and

2) not Gainfully Employed.

Id. at 606-607.

Hartford went on to note that because Plaintiff had been receiving benefits for 24 months, plaintiff must meet the second portion of the above-quoted definition to be eligible for benefits after February 8, 2006. Toward that end, Hartford indicated that it would review Plaintiffs additional medical documentation to determine whether her physical conditions resulted in physical disability, making her eligible for benefits beyond the initial 24 month period. Id. at 607 (emphasis added). Lastly, Hartford affirmed that it would continue to make payment on her claim, without prejudice and without acceptance of liability. Id.

I. Dr. Steven Harris and Lyme Disease Diagnosis

Dr. Harris’s treatment of Plaintiff for Lyme disease is documented by a series of office visit notes, Id. at 268-294, 807-861. Dr. Harris is an active member of the International Lyme & Associated Diseases Society (ILADS) and acts as a clinical consultant for IGeneX, Inc., a laboratory specializing in Lyme disease and co-infections. Id. at 348. Dr. Harris has seen over 1,000 patients with tick-born illnesses in private practice and has attended more than 25 conferences over the years specifically dealing with Lyme and co-infections. Id. Dr. Harris currently maintains a practice of over 700 patients with Lyme disease. Id.

On February 19, 2005, Plaintiff first sought treatment with Dr. Harris for possible Lyme disease. Id. at 282. Dr. Harris noted that Plaintiff had lived in Vermont prior to moving to California and had gone back to visit the last time in 1991, where she had frequently walked through tall grass. Id. Although Plaintiff had no recollection of a tick bite after her last trip to Vermont, she said that soon thereafter, she began to develop symptoms of fatigue, ovarian cyst, menstrual irregularity, and TMJ problems, Id. Dr. Harris noted that Plaintiff “had a Western blot test, which was negative, ELISA for Lyme, which was positive, and, a Bowen test, which was positive.” Id. at 282. Dr. Harris also noted that Plaintiff had been camping regularly in Sequoia and Yosemite. Id. Dr. Harris assessed that Plaintiff had probable Lyme disease. Id. at 283. Dr. Harris recommended a treatment plan of “Sámente, Lyme Western blot, Babesia serology, HME, HGE, Bartonella serology, Juice Plus, and antibiotics, pending results of lab tests.” Id. at 283. After receiving Plaintiffs further lab results, Dr. Harris noted on April 21,2005:

She was positive on the IgM and IgG Western blot for Lyme. She was also positive on the IgM for HME and positive on the IgG for HGE. Bartonella was negative, Babesia microti IgM was 1:20. The patient is considering starting treatments. She has also been diagnosed with aflatoxin due to yeast or mold; considering treatment for that, was given a prescription for Diflucan.

Id. at 277.

Dr. Harris recommended the antibiotic doxycycline 400 mg a day or Doryx if Plaintiff was unable to tolerate it. Id. Plaintiff continued to see Dr. Harris throughout 2005 up to November 2006 for similar ongoing treatment for Lyme disease and co-infections, Id. at 268-294, 807-861.

J. Dr. Gunnar Heuser and Toxic Encephalopathy Diagnosis

Plaintiff began treatment with Dr. Gunnar Heuser on April 20, 2006. Id. at 402. Dr. Heuser attended the University of Cologne Medical School, received a Ph.D. from the University of Montreal in Experimental Medicine and Surgery, and received a diploma from McGill University for internal medicine. Id. at 178. Dr. Heuser specializes in neurotoxicology and immunotoxieology. Id. at 402.

Dr. Heuser physically examined Plaintiff and prepared a report reviewing Plaintiffs self-described multi-symptom complaints and her history of Lyme disease and exposure to mold. Id. Dr. Heuser’s report also explained the results of new tests he conducted, and provided a diagnosis on her current condition. Id. at 402-405. Dr. Heuser performed the following tests:

• SPECT functional brain scan test was abnormal and compatible with neurotoxic exposure. Id. at 403.

• TOVA test was abnormal and showed problems with attention — such a problem is frequently found after neurotoxic exposure which can result in an acquired ADD syndrome. Id.

• Pulmonary function test showed obstruction at a baseline reading, which improved after administration of a bronchodilator. Id.

• A neurologically oriented physical exam showed a fine bilateral postural tremor. The finger to nose test was somewhat unsteady on the right. Id. Balance could not be tested because she walks using one crutch.

• A physical examination showing some expiratory wheezing shortly after the pulmonary function test and administration of the bronchodilator. She developed a significant cough with the pulmonary function test indicating an asthma like condition, but also sensitivity to inhaled chemicals from bronchodilator. Id. at 403.

On the basis of the tests, Dr. Heuser diagnosed Plaintiff with toxic encephalopathy, chemically induced asthma, chronic pain syndrome, intolerance to small amounts of chemicals, and Lyme disease by history. Id. at 404. According to Dr. Heuser, both Lyme disease and exposure to neurotoxins (including mold toxins) can lead to chronic conditions and multisymptom complaints. Plaintiffs multisymptom complaints were entirely compatible with her history of neurotoxic exposure and in his opinion have led to total disability. Id. Dr. Heuser stated that emotional impairment was known to occur in conjunction with Lyme disease as well as with mold toxicity. Id. Dr. Heuser believed that it was “evident that her depression was secondary to the primary diagnoses of Lyme disease and toxic encephalopathy.” Id. Dr. Heuser believed that the objective evidence of impaired brain function was disabling to Plaintiff, for which there is no cure available. Id. In conclusion, Dr. Heuser plainly stated that Plaintiff has “physical problems.” Id.

K. Plaintiff Demands Status Update and Payment From Hartford

On April 10, 2006, Plaintiff wrote Hartford a letter requesting an immediate response regarding the status of her claim. Id. at 785. Plaintiff said that she had not been paid her monthly benefit since February 7, 2006, and was informed on March 9, 2006, that it would take another 8-10 days to finish reviewing her claim. Id.

On April 24, 2006, Hartford responded to Plaintiff in a letter explaining that the supplementary medical information she had sent to them on or around February 3, 2006, was received but had not been logged into the claims system in a timely manner. Thus, on February 27, 2006, when Plaintiff called, there was no record of receipt of it. Id. at 771. Hartford acknowledged that Plaintiffs call to Hartford on February 27, 2006, was not returned and apologized. Id.

L. Hartford Requests Additional Information

On April 7, 2006, Hartford determined that additional information was needed concerning Plaintiffs ability to perform activities of daily living prior to referral for medical review. Id. at 771. As such, Hartford agreed to issue benefits payment on April 10, 2006, for the period from February 8, 2006, through March 31, 2006, in the amount of $3,638.98. Id. at 771. Hartford asked Plaintiff to fill out a Claimant Questionnaire regarding her daily living activities and for a newly-executed Medical Release, so that Plaintiffs file could be reviewed by Hartford’s Peer Physician. Id. at 772. Hartford advised Plaintiff that the Medical Release would allow them to speak directly to her physicians to discuss her current care and treatment related to the physical disability claim. Id. at 772.

Plaintiff completed the Claimant Questionnaire on May 6, 2006, indicating that her symptoms had gotten worse. Id. at 762. Plaintiff noted that she could perform some activities such as such as bathing, dressing, and using the toilet. Id. However, when her symptoms were severe, Plaintiff sometimes could not bathe, dress or perform personal hygiene on her own. Id. Furthermore, Plaintiff stated that her prior social and physical activities were limited or eliminated altogether. Id.

M. Hartford’s Peer Review by Dr. Keith A. Lammers

Hartford contacted Dr. Keith A. Lammers through Medical Advisory Group, LLC to review Plaintiffs records from July 2003 through January 2006 to make a determination of her functional abilities related to her physical disability claim. Id. at 738. Dr. Lammers is a graduate of the University of Colorado Medical School and is a board certified family practitioner. Id. at 1151.

Dr. Lammers reviewed Plaintiffs treatment with Dr. Cynthia Watson (specialty unknown) for otitis and low amino acids. Id. at 738. In multiple visits with Dr. Watson, Plaintiff complained of persistent gastrointestinal reflux. Id. at 738-739. A pathology report requested by Dr. Watson on March 4, 2004, showed that Plaintiff was negative for celiac disease, parasites, inflammation, and malignancy. Id. at 739. Further labs from April 22, 2004, showed normal CBC, normal sed rate, and positive ANA (antinuclear antibody) but at low titer, and a positive Lyme antibody test. Id. However, further Lyme testing revealed “one band to be positive and per the lab notes, two or more bands were needed to verify Lyme disease or a history of past exposure.” Id. Dr. Watson made the diagnosis of depression and anxiety and various amino acids were prescribed. Id. Another lab report from January 5, 2005, revealed red blood cell inclusions suggestive of a ring form of Babesia. Id.

Dr. Lammers reviewed Plaintiffs treatment summary with psychologist Dr. Connie Call dated June 22, 2004, where Dr. Call, “noted a history of worsening anxiety and depression with multiple medical complaints which led to social isolation and frequent work absenteeism ... Plaintiffs medical symptoms continued to worsen as well as problems with concentration and ability to function. Dr. Call stated that stresses of work made all of her symptoms worse requiring more medications with related side effects.” Id. at 739.

Dr. Lammers reviewed Plaintiffs treatment summary with psychologist Dr. Nadine Winocur dated November 16, 2004, who noted a diagnosis of anxiety and depression and significant stressors at work with an inability to concentrate, decreased attention, and poor memory. Id. at 740. Dr. Lammers commended that the legibility of the records was very poor, however, there was frequent mention of fungal toxic encephalopathy and Lyme disease, however, no exam was noted and treatment for it was unknown. Dr. Lammers stated that “these medical records were not beneficial to the discussion at hand.” Id. at 740.

Dr. Lammers reviewed Plaintiffs treatment with Dr. Abraham Ilona (unknown specialty), who ran labs showing slightly low white blood count on May 3, 2005, elevated antibodies to molds and fungi of unknown clinical significance on June 14, 2005 and December 19, 2005. Id. Labs from August 13, 2005, revealed negative testing for celiac disease and no evidence of diabetes. Id. Labs from January 7, 2006, showed normal thyroid function and normal endocrine testing. Id.

Lastly, Dr. Lammers reviewed Plaintiffs treatment with Dr. Steven Harris, who evaluated her for Lyme disease on February 19, 2005. Id. Dr. Harris’ exam revealed lymphadenopathy of unknown degree, a gait that was antalgic due to weakness, and muscle spasms were also noted. Dr. Harris also ran a “Western Blot test that was positive and by CBC criteria would suggest past history of Lyme disease. The lab also showed negative testing for Babesiosis and a positive test for Ehrlichiosis, which indicated a past infection.” Id.

Dr. Lammers reviewed Plaintiffs treatment with Dr. Harris on April, 21, 2005, July 28, 2005, August 26, 2005, November 4, 2005, and January 6, 2006. Id. at 740-741. On June 12, 2006, Dr. Lammers spoke with Dr. Harris on the telephone, wherein Dr. Harris stated that “he felt strongly that Ms. Parker has chronic Lyme disease with co-infections ... He stated that no further testing had been done as he does not believe MRIs, CAT scans, and EMG testings are ways to validate the diagnosis of chronic Lyme disease and that his diagnosis and treatment are based on patient symptomatology and blood tests.” Id. at 741. During the conversation, Dr. Harris admitted there was a debate about the validity of the diagnosis of chronic Lyme disease, but stated that he did not believe Plaintiffs symptoms were psychosomatic in origin and that Plaintiff had problems tolerating more aggressive treatment options due to subjective intolerance and that Plaintiff used alternative medicine as an adjunct to her treatment. Id. at 741.

Dr. Lammers asserted in his medical report that Plaintiffs treatment with prolonged antibiotic therapy should have eradicated any acute infection. Id. Dr. Lammers suspected that Plaintiffs condition had fallen into the category of chronic Lyme disease, the diagnosis of which is debated among specialists as to its authenticity. Id. at 741-742.

Dr. Lammers further noted that Dr. Harris is not an infectious disease specialist, but nevertheless has a large patient following [for Lyme disease], “as he confirms the diagnosis and its unverified treatment modalities.” Id. at 741-742.

Based only on the subjective symptomatology and lack of objective findings on exam or lab test, Dr. Lammers found no restriction or limitation in regard to Plaintiffs functional abilities. Id. at 742. “The exams that were provided in office encounters reveal no objective loss of function or disability.” Id. “There has been no objective documentation of any disease process in regard to EMG testing, imaging such as MRI or CAT scan, further lab work, or specialist consultation. I feel the appropriateness of the claimant’s diagnostic workup, diagnosis and treatment has been inadequate and certainly unsubstantiated.” Id. Accordingly, Dr. Lammers concluded with a high degree of medical certainty that Plaintiff was not restricted from performing full time work and that there was no medically supported restrictions of limitation. Id.

N. Hartford’s Claim Decision

On June 21, 2006, Hartford terminated Plaintiffs long term disability benefits effective July 1, 2006, concluding that the primary disabling condition was mental or emotional in nature and therefore subject to the 24 month limitation. Id. at 86-88. Hartford based its decision to terminate Plaintiffs claim on policy language and review of medical information from Dr. Harris, Dr. Watson, Dr. Call, Dr. Winocur, Dr. Brothers, Dr. Ilona, Dr. Geller, Dr. Hierro, Dr. Bedford, Dr. Albert, Dr. Epstein and Dr. Gruenn, all of which was reviewed by Dr. Lammers. Id. at 87.

Hartford considered Plaintiffs position as a property/legal records administrator and determined that the occupation was primarily a seated office type position requiring negligible physical exertion. Id. Although Hartford acknowledged that Plaintiff had been treated for the physical conditions of Lyme disease, allergies, gastrointestinal distress and pain of the jaw, ankle, neck and back, it stated that none of these conditions had been documented to have produced functional limitations that would prevent Plaintiff from engaging in all work activities, particularly on a continuous basis. Id. at 88.

With respect to Plaintiffs most recent medical records, Hartford’s position was that Plaintiffs long-term antibiotic treatment with Dr. Harris should have eradicated any underlying infectious disease process and that, in any event. Id. at 88.

In addition, Hartford maintained that because Plaintiffs medical file did not include any recent diagnostic studies such as MRIs, CT scans or EMG tests, physical diseases could not be identified or ruled out. Id. at 88. As a result, in Hartford’s view, the majority of the information available supported the conclusion that Plaintiffs disabling condition was anxiety and depression, of a psychiatric nature, and subject to 24 month limitation. Id. at 88.

Therefore, Hartford concluded, Plaintiffs medical records did not prove that Plaintiffs condition was a totally disabling physical condition, as defined by the Policy language, and therefore, Plaintiff was no longer entitled to benefits. Id. at 88. Hartford advised Plaintiff of her right to appeal the decision in writing within 180 days from receipt of the letter. Id.

O. Plaintiff Appeals the Claim Decision

On July 31, 2006, Plaintiff sent a letter of intent to appeal to Hartford through Disability Claim Consultant and its representative Linda Nee. Id. at 78. On December 16, 2006, Plaintiff filed her appeal. Id. at 334.

P. Hartford’s Appeals Review by Dr. Daniel P. McQuillen

Upon Plaintiffs appeal, Hartford contacted Dr. Daniel P. McQuillen through University Disability Consortium, to perform an infectious disease medical record review of Plaintiffs appeal. Id. at 296-304. Dr. McQuillen is a graduate of the Wisconsin Medical College and is a board certified infectious disease specialist and internal medicine doctor. Id. at 1154. Dr. McQuillen has years of clinical experience in infectious diseases, and has received awards in infectious disease research. Id. at 1154-1155. Dr. McQuillen did not personally examine Plaintiff; rather, he reviewed records from Dr. Nona Abraham, Dr. Gunnar Heuser, Dr. Stephen Harris, and Dr. Leslie Brothers and was asked by Hartford to answer specific referral questions related to Plaintiffs physical condition. Id. at 296-97. The specific referral questions Dr. McQuillen was asked to address in his review were:

• Please define the claimant’s functional/cognitive limitations as of June 12, 2004 and beyond due to Lyme disease, Ehrlichiosis, Babesia, Toxic Mold Encephalopathy, and heavy metal sensitivity. Id. at 296.

• Are the claimant’s pain, fatigue, and cognitive complaints consistent with the objective medical records? Id.

• Does the record document any limitations due to medication? Id.

With respect to the first specific referral question, Dr. McQuillen said that there was no clinical syndrome compatible with Ehrlichiosis or Babesiosis as described and the only positive tests were serologies which were only borderline positive. Id. at 302. Dr. McQuillen explained that a four-fold increase in convalescent over acute antibody titer was required to make a serologic diagnosis in Ehrlichiosis or Babesiosis. Id.

Dr. McQuillen was critical of the interpretation of the “abnormal TOVA test” as evidence of toxic encephalopathy, because there was no objective evidence of a cognitive disorder severe enough to impair Plaintiffs daily functioning. Id. Dr. McQuillen also questioned the discrepancy between by Dr. Harris’ notes on one occasion stating that Plaintiff was physically capable of conducting ADLs (activities of daily living) independently, yet on another occasion, Dr. Harris noted that Plaintiff was unable to conduct any activity lasting more than 10 minutes. Id.

Dr. McQuillen further noted that there was no objective corroboration in the records reviewed for claimant’s subjective self-reports of fatigue and cognitive difficulty. Id. at 301.

With regard to Plaintiffs Lyme disease diagnosis by Dr. Harris, Dr. McQuillen provided interpretation of the March 1, 2005 labs: “IGeneX Lyme Western blot— IgM — read as positive, but medium-high binding to only 1 CDC band; IgG — read as positive, but medium-high binding to only 2 CDC bands.” Id. at 298. “In a case such as the claimant, virtually 100% of patients with Lyme disease untreated for multiple years prior to diagnosis will have a fully positive Lyme IgG Western blot, not an isolated positive IgG blot (that is more likely to be affected by false positive binding).” Id. at 302.

Dr. McQuillen noted that although Plaintiff lived in Vermont, an area endemic for Lyme disease, she did not have any history of tick bite. Id. at 302. Dr. McQuillen referred the CDC’s published criteria for a diagnosis of Lyme disease requiring either the presence of erythema migrans (EM) rash or at least one late manifestation that is laboratory confirmed.” Id. at 302 (emphasis in original). Dr. McQuillen explained that in most patients:

[T]he EM rash was accompanied by fatigue, fever, headache, mild stiff neck, arthralgias or myalgia. Late manifestations included: recurrent brief attacks of objective joint swelling in one or a few joints sometimes followed by chronic arthrifts in one or a few joints ... In the nervous system, lymphocytic meningitis; cranial neuritis, particularly facial palsy; radiculoneuropathy; or encephalomyelitis were considered diagnostic. Encephalomyelitis had to be confirmed by demonstration of antibody production against Burrelia burgdorferi in the CSF, evidence by a higher titer of antibody in the CSF than in serum. Headache, fatigue, paresthesia, or mildly stiff neck alone were not criteria for neurologic involvement. Cardiovascular criteria: acute onset of high-grade atrioventricular conduction defects that resolved in days to weeks and were sometimes accompanied by myocarditis. Id. at 302-303.

Dr. McQuillen concluded that “the medical records are devoid of a clinical syndrome compatible with primary Lyme disease and the claimant’s symptom complex is too nonspecific to fit the above diagnostic criteria.” Id. at 803. Dr. McQuillen further cautioned that the CDC and FDA have become aware of commercial laboratories that conduct testing for Lyme disease or “interpret Western blots using criteria that have not been validated and published in peer-reviewed scientific literature.” Id. at 303 (emphasis in original).

Dr. McQuillen was also skeptical about Plaintiffs diagnosis of mold toxicity even though Dr. Nona Abraham’s interpretation of the elevated antibody levels reflected in the lab test reports stated “high levels of IgG, IgM, and IgA antibodies against mold and mycotoxins antibodies are not an indication of any disease,” yet, Plaintiff was told she suffered from mold toxicity when there was no corroborating evidence for such a diagnosis even by her own treating physician, Dr. Abraham. Id.

Dr. McQuillen summarized that Plaintiffs “records document a long-standing history of recurrent major depressive episodes and generalized anxiety disorder requiring treatment with multiple psychoactive medications and long-term psychotherapy.” Id. He further elaborated that “while there is no evidence in the records that these diagnoses rose to a level that required hospitalization, many of the claimant’s subjective complaints could emanate from her psychiatric diagnoses.” Id.

In concluding his answer to the first specific referral question, Dr. McQuillen stated that as of June 12, 2004 and beyond, “there is no evidence in the objective medical records that the claimant’s functional/cognitive limitations would prevent full time work.” Id. at 304.

With respect to the second specific referral question, Dr. McQuillen answered, “No,” Plaintiffs pain, fatigue and cognitive complaints were not consistent with the objective medical records, they in fact “exceed the objective findings in the medical records.” Id.

With respect to the third and final specific referral question, Dr. McQuillen responded, “No,” although the record documented some side effects, such as thrush and nausea secondary to antibiotics, none of the medications created limitations which would rise to a level that would impair functional ability. Id.

On February 15, 2007, Dr. McQuillen submitted an addendum to his prior infectious diseases medical record review, which included review of three additional office visits Plaintiff had with Dr. Harris. Id. at 234. Dr. McQuillen attempted to reach Dr. Harris, but was unable to do so and thus faxed a series of questions to Dr. Harris regarding Plaintiffs condition. Id. at 235. Dr. McQuillen’s review of Plaintiffs additional office visits with Dr. Harris did not change the conclusions in his initial record review. Id. at 235. Dr. McQuillen expressed that none of the claimant’s diagnoses or subjective self-reports of fatigue and cognitive difficulty would prevent full time work as of June 12, 2004, and beyond. Id. at 235.

On February 15, 2007, Dr. Harris prepared responses to Dr. McQuillen’s six questions. Id. at 166-168. Dr. Harris responded that Plaintiff was completely unable to sustain productive work due to her physical limitations which were consistent with longstanding treatment for Lyme Disease. Id. at 167. Dr. Harris emphasized that the primary diagnosis was Lyme disease complicated by toxic encephalopathy and sensitivity to mold, therefore, her inability to sustain work is a physical condition, not a mental or emotional cause. Id. at 167.

On February 16, 2007, Dr. McQuillen submitted a second addendum to his prior infectious diseases medical record review, which incorporated and addressed Dr. Harris’ responses. Id. at 161-164. Dr. McQuillen once more reviewed Plaintiffs two Western blot lab results, the first from April 22, 2004, which was negative with binding only to the 41 kDa band on IgM blot (the most common band subject to nonspecific binding). Id. at 163. The second Western blot lab result performed on March 1, 2005 at IGeneX labs was interpreted by Dr. Harris as positive, but when read using the CDC criteria of counting only medium-highly bound bands, the blot is negative (one IgM and two IgG bands bound). Id. at 163. Dr. McQuillen reasons that if Plaintiff contracted the bite in Vermont around 1991 (as Dr. Harris postulates, but which is not confirmed by EM rash) and did not receive treatment until 2005, “BOTH Western blots should be FULLY positive by CDC criteria to qualify for an acceptable laboratory diagnosis of Lyme disease.” Id. at 163 (emphasis in original). Dr. McQuillen, thus, could find no instance in Plaintiffs medical record where the Lyme disease diagnosis was substantiated by CDC criteria. Id. at 163. Dr. McQuillen further asserted that there were multiple other potential explanations for the Plaintiffs subjective self-reported symptoms, including her diagnosis for depression, which was initially made in 1996. Id. at 163.

With respect to the Toxic Mold Encephalopathy diagnosis, Dr. McQuillen repeated that the lab test report stated, “high levels of IgG, IgM, and IgA antibodies against mold and mycotoxins are not an indication of any disease.” Id. at 163. Absent further objective demonstration in Plaintiffs record of encephalopathy other than subjective self-reporting, one cannot make the conclusion that Plaintiff suffers from disease related to mold. Id. at 163. Again, Dr. McQuillen repeated that none of Plaintiffs diagnoses or subjective self-reports of fatigue and cognitive difficulty would prevent full-time work as of June 12, 2004 and beyond. Id. at 164.

Q. Hartford Denies Parker’s Appeal

On February 20, 2007, Hartford sent a letter to Linda Nee of Disability Claims Solutions, who had filed Plaintiffs appeal, notifying her that Plaintiff did not meet the policy definition of disability due to Lyme Disease, Ehrlichiosis, Babesia, Bartonella, Toxic Mold Encephalopathy, and Heavy Metal Sensitivity. Id. at 208. Hartford stated that it would uphold its termination of Plaintiffs long term disability benefits based on the evidence contained in Plaintiffs claim file, and listed the various additional information reviewed in its record. Id.

Hartford once more highlighted the key Policy provisions applicable to Plaintiffs claims for long term disability benefits and chronologized the events in Plaintiffs file. Id. at 209. Hartford reiterated that Plaintiffs claim was approved for benefits effective February 8, 2004, and was limited to a 24 month maximum duration as required by the policy for disability due to mental disorder. Id. at 209. Toward the beginning of 2006, additional medical records were submitted to support a physical disability, however, ultimately Hartford found Plaintiffs claim for further benefits due to physical disability could not be substantiated. Id. at 209. The letter explained Hartford’s review of Plaintiffs medical records on appeal and found that Plaintiff could not prove eligibility for continued disability due to physical condition. Id. at 209-212. Lastly, Hartford’s medical review of the evidence found that, physically and cognitively, Plaintiff was not precluded from performing full time work from June 12, 2004 and beyond due to the physical conditions of Lyme disease, Ehrlichiosis, Babesia, Bartonella, Toxic Mold Encephalopathy, and Heavy Metal Sensitivity. Id. at 212.

II. EVIDENTIARY OBJECTIONS

Defendant objects to Plaintiffs Trial Exhibits 1200-1209, on the basis of lack of authentication and inadmissible hearsay. Plaintiff filed no response to Defendant’s evidentiary objections, nor was argument regarding their admissibility made at trial. The Court did not rely on the materials to which Defendant objects. Accordingly, the objections are overruled as moot.

III. EVIDENCE OUTSIDE THE ADMINISTRATIVE RECORD

The Centers for Disease Control (CDC) has extensively studied and tracked Lyme disease, its prevention, transmission, symptoms, diagnosis, treatment, and statistics. Lyme disease is one of the most common tick-born diseases in the United States, which passes to humans by the bite of a black-legged deer tick. The bite infects the human with the bacterium Borrelia burgdorferi,

A. Lyme Disease Symptoms

The symptoms of Lyme disease vary by stages. In the early stages, patients usually develop a circular rash called erythema migrans or EM as a sign of the infection. In the late stages, either months or years later, approximately 60% of patients with untreated infection will begin to have intermittent bouts of arthritis, with severe joint pain and swelling. Large joints are most often affected, particularly the knees. In addition, up to 5% of untreated patients may develop chronic neurological complaints months to years after infection. These include shooting pains, numbness or tingling in the hands or feet, and problems with concentration and short term memory.

B. Lyme Disease Diagnosis

Lyme disease is diagnosed based on symptoms, objective physical findings (such as erythema migrans, facial palsy, or arthritis), and a history of possible exposure to infected ticks. Validated laboratory tests can be very helpful but are not generally recommended when a patient has erythema migrans (early stages of Lyme disease).

Laboratory Testing

Several forms of laboratory testing for Lyme disease are available which measure antibodies made in response to the infection. These tests may be falsely negative in patients with early disease, but they are quite reliable for diagnosing later stages of disease. The CDC recommends a two-step process when testing blood for evidence of Lyme disease. Both steps can be done using the same blood sample.

1) The first step uses an ELISA or IFA test. These tests are designed to be very “sensitive,” meaning that almost everyone with Lyme disease, and some people who don’t have Lyme disease, will test positive. If the ELISA or IFA is negative, it is highly unlikely that the person has Lyme disease, and no further testing is recommended. If the ELISA or IFA is positive or indeterminate (sometimes called “equivocal”), a second step should be performed to confirm the results.

2) The second step uses a Western blot test. Used appropriately, this test is designed to be “specific,” meaning that it will usually be positive only if a person has been truly infected. If the Western blot is negative, it suggests that the first test was a false positive, which can occur for several reasons. Sometimes two types of Western blot are performed, “IgM” and “IgG.” Patients who are positive by IgM but not IgG should have the test repeated a few weeks later if they remain ill. If they are still positive only by IgM and have been ill longer than one month, this is likely a false positive.

C. Lyme Disease Treatment

Most patients can be cured with a few weeks of antibiotics taken by mouth. Antibiotics commonly used for oral treatment include doxycycline, amoxicillin, or cefuroxime axetil. Patients with certain neurological or cardiac forms of illness may require intravenous treatment with drugs such as ceftriaxone or penicillin. Patients treated with antibiotics in the early stages of the infection usually recover rapidly and completely. A few patients, particularly those diagnosed with later stages of disease, may have persistent or recurrent symptoms. The authors of studies sponsored by the National Institutes of Health have concluded that these patients may benefit from a second 4-week course of therapy and that longer courses of antibiotic treatment are not beneficial. Longer courses of antibiotics have been linked to serious complications, including death.

D. “Chronic Lyme Disease”

The term “chronic Lyme disease” (CLD) is very confusing, as it has been used to describe people with different illnesses. While the term is sometimes used to describe illness in patients with Lyme disease, in many occasions it has been used to describe symptoms in individuals who have no evidence of a current or past infection with B. burgdorferi. (.Infect Dis Clin N Am 2008; 22:341-60). In other cases, “CLD” is used in patients who have nonspecific symptoms (like fatigue and pain) after treatment for Lyme disease, but who have no evidence of active infection with B. burgdorferi. Physicians sometimes describe these patients as having post-Lyme disease syndrome (PLDS). Because of the confusion in how the term CLD is employed, experts in this field do not support its use (New Eng. J. Med. 2008; 357:1422-30).

IV. STANDARD OF REVIEW

In reviewing a plan administrator’s decision to deny ERISA benefits, the Supreme Court in Firestone Tire and Rubber Co. v. Bruch, held that the default standard of review is de novo. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80(1989). If the plan at issue, however, contractually “confers discretion on the administrator ‘to determine eligibility for benefits or to construe the term of the plan’ ... then the standard of review shifts to abuse of discretion.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir.2006) (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948).

In relevant part, the Policy provides:

Any denial of a claim for benefits will be provided by the insurance company and consist of a written explanation which will include (i) the specific reasons for the denial, (ii) reference to the pertinent plan provisions upon which the denial is based, (iii) a description of any additional information you might be required to provide and an explanation of why it is needed, and (iv) an explanation of the Plan’s claim review procedure. You, ... or a duly authorized representative may appeal any denial of a claim for benefits by filing a written request for a full and fair review to the insurance company ... The full and fair review will be held and a decision rendered by the insurance company no longer than 60 days after the receipt of the request for review.

AR 726.

Thus, the Court finds that the benefit plan does in fact, confer discretion on Hartford to determine eligibility for benefits under the Policy. Hartford therefore, operates under a structural conflict of interest in its review of Plaintiffs claim, which requires the Court to apply an abuse of discretion standard of review.

V. CONCLUSIONS OF LAW

A. Hartford’s Conflict of Interest

Recently, the Supreme Court revisited its holding in Firestone in the case of Metropolitan Life Insurance Co. v. Glenn, — U.S. -, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). In Glenn, the Court reaffirmed that courts should be “guided by principles of trust law” when determining the appropriate standard of review. Id. at 2347. When a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion. Id. at 2348. The conflict of interest should be given more weight or importance where “circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.” Id. at 2351. The weight of the conflict of interest should be given less importance where “the administrator has taken active steps to reduce potential bias and to promote accuracy....” Id.

This approach has been described by the Ninth Circuit as an “informed variation on the abuse of discretion standard” that “requires [courts] to discount the amount of deference given to the administrator’s decision to the extent that decision appears to have been influenced by any conflicts of interest.” Sznewajs v. United States Bancorp Amended and Restated Supplemental Benefits Plan, 572 F.3d 727, 733 (9th Cir.2009).

Where an insurer acts as both the plan administrator and the funding source for benefits, it operates under a structural conflict of interest. Abatie at 965 (citing Tremain v. Bell Indus., Inc., 196 F.3d 970, 976 (9th Cir.1999)). The Abatie court noted that the “level of skepticism with which a court views a conflicted administrator’s decision may be low if a structural conflict of interest is unaccompanied, for example by any evidence of malice, of self-dealing, or of a parsimonious claims granting history.” Id. at 968. On the other hand, however, a court may weigh a conflict more heavily if (1) the administrator provides inconsistent reasons for denial, (2) fails adequately to investigate a claim or asks the plaintiff for necessary evidence, (3) fails to credit a claimant’s reliable evidence, (4) has repeatedly denied benefits to deserving participants by inters preting plan terms incorrectly, (5) or by making decisions against the weight of evidence in the record. Id.

In determining “the nature, extent, and effect on the decision-making process of any conflict of interest” the Ninth Circuit has further decided that a “district court may in its discretion, consider evidence outside the administrative record.” Id. at 970. “[T]he decision on the merits, though, must rest on the administrative record once the conflict (if any) has been established, by extrinsic evidence or otherwise.” Id. The situation at hand where Hartford both administers and funds the claim, creates a conflict prompting some degree of skepticism in reviewing Hartford’s determination to deny benefits to Plaintiff. Without evidence of self-dealing, malice or parsimonious claims granting history by Hartford, the Court will apply a low degree of skepticism in its abuse of discretion analysis. Plaintiff, however, makes a number of arguments why the court should elevate its level of skepticism.

1. Malice

Plaintiff argues that certain mistakes made by Hartford during the claims process tends to show that Hartford acted with malice. Specifically, Hartford misplaced medical records which Plaintiff had mailed to Hartford on February 3, 2006, and failed to log them into the system creating a 8-10 day delay in the claims review process. AR 771. However, the records were later found and made part of the record. Id.

Aso, there was an occasion when Plaintiffs telephone call was not returned; however, Defendant eventually addressed Plaintiffs concerns by letter. Id. at 785.

Lastly and most significantly, Hartford delayed payment on Plaintiffs monthly benefits while awaiting supplemental records. Athough Hartford notified Plaintiff that she would continue to receive benefits while her claim was being reviewed they did not. In a letter dated April 10, 2006, Plaintiff complained that she had not been paid her monthly benefit since February 7, 2006. Id. However, two weeks after Plaintiffs letter, on April 24, 2006, Hartford agreed to issue benefits payment to Plaintiff for the period from February 8, 2006 through March 31, 2006. Id. at 771.

Although these were clearly missteps made by Hartford, the Court cannot discern any intent to harm or injure Plaintiff; rather, it appears to the Court that Hartford merely made mistakes in their consideration of Plaintiffs claim. Therefore, the Court does not find that Hartford acted with malice.

2. Self-Dealing and Bias

Plaintiff asserts that there is evidence of self-dealing and bias by Hartford in its selection of physicians to review Plaintiffs claim and appeal and that the Court should alter its standard of review accordingly.

First, Plaintiff takes issue with Hartford for selecting a doctor who belongs to a group whom Plaintiff alleges has an incentive to submit favorable reports to them. Pl.’s Trial Br. at 14. Specifically, Plaintiff takes issue with Hartford’s hiring of Dr. McQuillen through University Disability Consortium (UDC) to review Plaintiffs appeal. In Caplan v. CNA Financial Corporation, UDC was found to receive nearly seventy-five percent of its revenue from Hartford. PL’s Trial Br. at 16 (citing Caplan v. CNA Financial Corporation, 544 F.Supp.2d 984, 989-990 (N.D.Cal.2008)). The Caplan court found:

In addition, Hartford’s structural conflict of interest is accompanied by its reliance on UDC, a company which Hartford knows benefits financially from doing repeat business with it, collecting more than thirteen million dollars from Hartford since 2002. It follows that Hartford knows that UDC has an incentive to provide it with reports that will increase the chances that Hartford will return to UDC in the future — in other words, reports upon which Hartford may rely in justifying its decision to deny benefits to a Plan participant. UDC’s marketing material also suggests that it offers insurers and plan administrators services that will support a parsimonious approach to administering claims.

Id. at 991-992.

Plaintiff argues that as an associate of UDC, Dr. McQuillen had a financial incentive to make a finding of “not disabled,” despite the evidence presented by Plaintiff. In turn, UDC would continue to receive the bulk of its business from Hartford, and Dr. McQuillen would continue to review medical records for UDC. PL’s Trial Br. at 17. Dr. McQuillen’s report to Hartford concluded that Plaintiff was not physically impaired and that “none of the Plaintiffs diagnoses or subjective self-reports of fatigue and cognitive difficulty would prevent full-time work as of June 12, 2004 and beyond.” AR 164. Plaintiff argues that Dr. McQuillen made this determination despite the followup responses by Plaintiffs treating physician, Dr. Harris, who was adamant that Plaintiff was completely unable to sustain productive work due to her physical limitations which were consistent with long-standing treatment for Lyme disease. Id. 167. Even after reading Dr. Harris’ answers to the questions posed to him, Dr. McQuillen still could find no instance in Plaintiffs medical record where the Lyme disease diagnosis was substantiated by CDC criteria and believed there were multiple other potential explanations for the Plaintiffs subjective self-reported symptoms, including her diagnosis for depression. Id. at 163. Plaintiff argues that Dr. McQuillen never intended to seriously consider Dr. Harris’ responses to his questions in the first place, that they were asked merely to “make it look as though he did a thorough review of Ms. Parker’s medical history when in fact he did not. By sending questions to Harris he could claim to have considered the answers when in fact he knew that they would not alter his opinion.” Pl.’s Trial Br. at 19.

The record is not exactly as Plaintiff portrays. Dr. McQuillen’s initial report shows that he placed phone calls and left messages for Dr. Harris on three occasions, yet none of his calls were returned. AR 301. Following these failed attempts, Dr. McQuillen then asked Hartford if he should try an alternative way of reaching Dr. Harris to get his questions answered, hence, the six questions were faxed to Dr. Harris on February 6, 2007, to which no response had yet been made when Dr. McQuillen prepared the first addendum on February 15, 2007. AR 234-235. On the same day, Dr. Harris faxed his responses to Dr. McQuillen; Dr. Harris restated his opinion that Plaintiff was completely unable to work due to her physical limitations. AR 161-162. Defendant argues that it was not because of bias that Dr. McQuillen concluded that Plaintiff did not suffer from Lyme disease, but rather because Dr. McQuillen and Dr. Harris had a “fundamental disagreement” regarding the interpretation of Plaintiffs Western Blot lab results. Def.’s Resp. Trial Br. at 10-11. For that reason, Dr. McQuillen found in his second addendum that Plaintiff would not be prevented from full time work. AR 164.

Plaintiff also points out that Plaintiffs toxic mold encephalopathy diagnosis by Dr. Gunnar Heuser was also discounted by Dr. McQuillen. Plaintiff asserts that the SPECT scan and TOVA tests were objective diagnostic tests showing that Plaintiff was exposed to neurotoxic agents causing cognitive disabilities. PL’s Trial Br. at 17. According to Dr. Heuser’s report, both Lyme disease and exposure to neurotoxins (including mold toxins) could lead to chronic conditions and multisymptom complaints. In his opinion, they led to Plaintiffs total disability. AR 404. Still, however, Dr. McQuillen felt that absent further objective demonstration in Plaintiffs record of encephalopathy other than subjective self-reporting, one could not make the conclusion that Plaintiff suffered from disease related to mold. Id. at 163.

Second, Plaintiff asserts that Hartford hired doctors who were biased against Plaintiffs treating physicians’ diagnoses. In particular, Plaintiff takes issue with the report by Dr. Lammers who complained that the records kept by Plaintiffs physicians were of “poor documentation and legibility” yet he still managed to decide “with a high degree of medical certainty” that Plaintiff was not restricted from performing full-time work. PL’s Trial Br. at 14-15. Most significantly, Plaintiff accuses Hartford of hiring a doctor who doesn’t even believe in the disease in question, namely chronic Lyme disease. Plaintiff asserts that Dr. Lammers did not believe Plaintiff was disabled because he himself did not believe in a diagnosis of chronic Lyme disease and because her restrictions were based on subjective symptomatology. Pi’s Trial Br. at 15.

Dr. Lammers’ report showed that he discussed the Lyme diagnosis with Dr. Harris, and that Dr. Harris admitted there was debate about the validity of the diagnosis of chronic Lyme disease. AR 741. Dr. Lammers further wrote in his report that “the diagnosis of chronic Lyme disease is debated among specialists as to its authenticity. There are many medical specialists who do not feel there is such a disease entity.” Id.