Full opinion text
MEMORANDUM OPINION AND ORDER ROBERT M. DOW, JR., District Judge. In several recent rulings, the Seventh Circuit has emphasized that district court de novo review of benefits denials under the Employee Retirement Income Security Act of 1974 (“ERISA”) is not “review” at all. See, e.g., Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 644 (7th Cir.2007) (observing that confusion in this realm may be at least partially a product of the “common phrase” de novo review). Rather, when the de novo standard applies, a denial of benefits under an ERISA plan becomes essentially an ordinary contract dispute, albeit one in which federal common law rules of contract interpretation apply. Id. The task for a court that decides such a case is familiar; it must decide for itself “where the truth lies.” Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 842 (7th Cir.2009). In making that truth determination, the Federal Rules of Civil Procedure impose limits on judges at the summary judgment phase. A credibility determination that may be appropriate after a bench trial, for example, cannot properly be made on a motion for summary judgment. Old habits die hard, however, for the abuse of discretion standard to which litigants have become accustomed seemingly pervades the way that many litigants think about (and argue) ERISA cases. This ease illustrates the challenges of adapting to the clarified procedural environment. The Seventh Circuit has stressed that “[i]f a paper record contains a material dispute, a trial is essential.” Krolnik, 570 F.3d at 844. Here, the parties relied almost entirely on the paper administrative record, one that is pockmarked (if not permeated) by factual disputes relating to whether Plaintiff was disabled prior to the termination of his employment (and with it, his coverage) in August 2005. For that reason, the Court denies the parties’ cross-motions for summary judgment [54, 62], I. Procedural Background Plaintiff, Alvin L. Hintz, Jr. (“Hintz”) filed this lawsuit on March 3, 2008, pursuant to the Employee Retirement Security Act of 1974 (29 U.S.C. § 1001 et seq.) (“ERISA”). Hintz’s complaint alleges that Defendant, Prudential Insurance Company of America (“Prudential”) improperly denied, under an employee welfare benefit plan, long term disability (“LTD”) benefits to Hintz, who suffers from multiple maladies that rendered him disabled within the meaning of the plan. His suit is based on 29 U.S.C. § 1132(a)(1)(B), which allows a plan participant or beneficiary to “recover benefits due to him under the terms of the plan.” Prudential’s answer generally denies Hintz’s operative factual allegations and asserts several affirmative defenses. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. §§ 1132. After Hintz amended his complaint, dropping as a defendant “Long Term Disability Coverage for Class 1: US Executives of CCL Custom Manufacturing, Inc.,” the parties engaged in discovery and then filed cross motions for summary judgment [54, 62], The parties’ motions and supporting memoranda [see 54, 55, 62, 63, 69, 71] argue, although reaching opposite conclusions, that there is no genuine dispute of material fact as to Hintz’s disability status. As already intimated, the Court concludes that neither party is correct. II. Facts The Court takes the relevant facts primarily from the parties’ respective Local Rule (“L.R.”) 56.1 statements: Defendant’s Statement of Facts (“Def. SOF”) [64], Plaintiffs Response to Defendant’s Statement of Facts (“PI. Resp. Def. SOF”) [70], Plaintiffs Statement of Facts (“PI. SOF”) [53], and Defendant’s Response to Plaintiffs Statement of Facts (“PI. Resp. Def. SOF”) [65]. A. Hintz’s Employment and Long Term Disability Benefits Policy Alvin Hintz was employed as the Director, Information Systems with CCL Custom Manufacturing, Inc., (“Custom Manufacturing”) in Danville, Illinois, for more than 10 years. PRU 118. Prior to Hintz’s termination, the Company was purchased by KIK Custom Products, Inc. (“KIK”). PI. Resp. Def. SOF ¶ 5. As discussed more fully below, Hintz claims— and Prudential denies — that he was only able to continue working under medical restrictions and accompanying workplace accommodations. See PI. SOF ¶¶ 7, 13; Def. Resp. PI. SOF ¶¶ 7,13. A few months after KIK took over Custom Manufacturing, on August 8, 2005, Plaintiffs employment was terminated. PI. SOF ¶ 15. Eight other employees were terminated around that period of time. Def. SOF ¶ 16; PRU 272-77; see also id. at 130. The separation agreement that Hintz signed included a “general release of claims and promise not to sue.” In pertinent part, the release provided that Hintz would “to the extent permitted by law * * * [agree] not to sue * * * employee benefit plans * * * for any and all claims * * * arising under federal, state or local laws relating to employment, including * * * the Employee Retirement Income Security Act * * PRU 273. The long term disability plan at issue in this case, Group Insurance Policy No. G-41356-IL (the “Policy”), was underwritten and insured by Prudential and was part of CCL’s employee welfare benefit plan. Def. Resp. PL SOF ¶ 10. Hintz was covered by the Policy incident to his employment with CCL, and therefore is a “participant” in the statutory parlance. Id.; see also 29 U.S.C. § 1002(7). The Policy contains the following definition of disability: You are disabled when Prudential determines that: • You are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and • You have a 20% or more loss in your indexed monthly earnings due to that sickness or injury. Def. SOF ¶ 9. “Material and substantial duties,” in turn, are defined as duties that “[a]re normally required for the performance of your regular occupation” and which “[cjannot be reasonably omitted or modified, except that if you are required to work on average in excess of 40 hours per week,” then you will not be disabled if you “have the capacity to work 40 hours per week.” Def. SOF ¶ 10. The policy also sets out seven types of information that a claimant must provide in order to prove a claim, including “[a]ppropriate documentation of the disabling disorder.” PRU 23 (emphasis added). Finally, the Policy has a limited pay period for a sickness or injury which, “as determined by Prudential, are [sic] primarily based on self-reported symptoms.” PRU 18. Self-reported symptoms means those symptoms for which “the manifestations of your condition * * * [reported to your doctor] are not verifiable using tests, procedures and clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headache, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.” PRU 19. B. Hintz’s Pre-Termination Medical History The record indicates that prior to the termination of Hintz’s employment, Hintz sought treatment for a number of medical conditions. On January 27, 2003, Hintz saw Dr. Paul R. Wilson at the Carle Foundation Hospital. Dr. Wilson’s “progress notes” do not indicate the reason for Hintz’s visit. The notes state that Hintz had “suboptimally controlled insulin-requiring diabetes.” PRU 479; Def. Resp. PI. SOF ¶ 34. The notes further indicate that Hintz had “significant hyperlipidemia,” as well as hypertension. PRU 479. Dr. Wilson’s plan states, in part, that “[Hintz] is to work much harder on diet and exercise,” that he “was [sic] started back with cardiac rehab,” and that Hintz was to return for a follow up visit and lab work in 8-10 weeks. Id. On July 7, 2003, Hintz saw Dr. Lynette Smith-Caillouet. Doctor Smith-Caillouet was Hintz’s primary care physician. PRU 282. The doctor’s notes from the July 2003 visit indicate that the purpose of the visit was to “follow-up on his blood sugars[,] to get his blood pressure cheeked[, and] to go over his cholesterol.” PRU 483. During the visit he also complained of insomnia and reported “baseline fatigue.” Id. The notes recount Hintz’s past medical history, describing that history as “significant for diabetes hyperlipidemia, coronary artery disease, status post bypass grafting.” Id.; PI. SOF 34. The doctor also stated that Hintz needed to get his blood sugars under control: “[T]his patient has promised he is going to exercise and watch his diet.” PRU 483-84. On November 18, 2003, Hintz saw Dr. Smith-Caillouet again. Hintz came in for the visit because he “wanted his chemical stress test done. He wanted a colonoscopy set up, he is having trouble walking due to his right foot pain, [and] he wanted to see a cardiologist.” PRU 486. Hintz also stated that he “want[ed] the requirements for early retirement. * * * [W]hen he is doing exercise at his rehab place * * * he starts coughing or like he will get some coughing and some tightness in his chest when the weather has certain temperature changes especially toward cold and wet.” Id. Dr. Smith-Caillouet’s assessment and plan from the visit reads as follows: Assessment: 1. Hypercholesterolemia. Tryglycerides are high despite Gemfibrozil and Lipitor combination. He is actually going to see a cardiologist as consult in December, Dr. Mokraoui and I will elicit Dr. Mokraoui [sic] expertise in cholesterol management to help me with this patient * * *. I think he clearly has coronary risk factor events and it would be nice to optimize these particular labs so that his risk factors would be lower. 2. His diabetes also puts him at risk for further cardiovascular event [sic] especially being uncontrolled.* * * Plan: He wants a dobutamine stress echo, I think that is a good idea although the patient is not having any coronary symptoms * * *. PRU 486-87 (emphasis in original). On December 16, 2003, Hintz saw Dr. Malee Mokraoui in order “to establish care and also determine what his long-term prognosis is.” PRU 493. Dr. Mokraoui’s notes from the visit, in pertinent part, read as follows: This gentleman underwent three vessel coronary bypass surgery in 1998. * * * This was done because of new onset angina at that time. He did reasonably well over the years. He underwent a dobutamine stress echo early this month which was nonischemie.[] * * * REVIEW OF SYSTEMS: Cardiovascular: He currently denies any chest pain. He has mild shortness of breath (class I). One should note, however, that he leads a semi-sedentary lifestyle as he is traveling a lot. He has not been very compliant with his diet. He denies any PND or orthopnea. He is unaware of any palpitations. He denies claudication or swelling of his lower extremeties. General: His major complaint is fatigue at the end of the day. * * * Pulmonary: Negative for wheezing, cough, sputnum production, or hemoptysis. CNS: No prior history of stroke, seizures, or headache. Musculoskeletal: He suffers from pain in his feet which is possibly related to diabetic neuropathy. * * * He did undergo vascular studies on his lower extremities and no evidence of vascular disease was found. PHYSICAL EXAMINATION: This is a pleasant gentleman in no obvious distress. RECOMMENDATIONS: Mr. Hintz has documented coronary artery disease from which he is asymptomatic; however, he has not been managing his risk factors quite well. His blood pressure, diabetes, and lipid profile are under control. The second issue is his lipid profile. He does have clearly combined hyperlipidemia. I have urged him to place himself on a low carbohydrate and low fat diet. The third issue is his hypertension. Being a diabetic, his systolic blood pressure should be below 130. * * * I believe he sees Dr. Wilson for his diabetes which is not very well controlled. * * * I have encouraged him to remain physically active. I had a long discussion with him about risk factor modification and its importance. I urged him to modify his lifestyle and consider cutting down his traveling and exercise more. Since he is stable, I will see him on a yearly basis. PRU 493-96. On February 10, 2004, Dr. Smith-Caillouet examined Hintz. Hintz went to the visit complaining of right calf discomfort that had started the previous month. The pain was described as starting in the back of his calf and then radiating “downward toward the lateral ankle.” PRU 498. Activity seemed to intensify the symptoms. He reported no swelling, nor did the doctor detect “appreciable” swelling as between his two calves. During the visit, Hintz stated that “he walks a mile and a half several times a week as part of his cardiac rehab.” PRU 498. “He reports his exercise has been taking longer and longer because he needs to stop and rest to make the pain go away in his right calf. He states he occasionally has some cramping in his feet.” Id. Smith-Caillouet’s assessment states that he had right calf pain and claudication, which is pain and/or cramping in the lower leg due to inadequate blood flow to the muscles. Def. Resp. PI. SOF ¶ 37 & n. 14. On April 5, 2004, Hintz saw another doctor — the name of the author is disputed by the parties although Defendant has not otherwise questioned the authenticity of the notes from the visit. The author of the notes states that Hintz was “seen in the collaborative service of Dr. Smith-Caillouet.” The notes from that date state that Hintz underwent an abnormal arterial study that revealed claudication in both legs, worse in the right leg than in the left. The examination was positive for leg pain with ambulation. Hintz was assessed with right lower extremity claudication with peripheral vascular disease, as well as coronary artery disease and hypertension. PRU 505-06. On April 7, 2004, Hintz underwent an abdominal aortogram, oblique pelvic arteriogram, and bilateral lower extremity runoff angiogram. The procedure revealed infrapopliteal peripheral vascular disease and mild aortoiliac and infrainguinal disease. PI. SOF ¶ 39; PRU 603. On April 19, 2004, Hintz underwent right popliteal to perineal bypass. This type of procedure is used to bypass diseased blood vessels above or below the knee. PI. SOF ¶ 40 & n. 15. On September 30, 2004, Hintz was seen by “sgd,” who was, according to the medical notes, treating Hintz “in collaborative practice with Dr. Smith-Caillouet.” PRU 521. Hintz came to the medical clinic reporting sudden rib pain brought on by coughing the night before. PL SOF ¶ 41; PRU 521. He did not report shortness of breath, chest pain, nausea or vomiting. However, he was very uncomfortable with sitting to standing. PRU 521. On October 4, 2004, Dr. Smith-Caillouet again examined Hintz for coughing and rib pain. He was assessed with costochondritis, which is an inflammation of the cartilage that connects a rib to the breastbone. Pl. SOF ¶ 42 & n. 16. He was prescribed two drugs for the condition. Dr. Smith Caillouet’s plan for treatment, noting the prescribed drugs, states: “Hopefully that will give him enough relief that he can go on his trip, but if not he will stay home and let us know if it does not continue to improve over the next week.” PRU 524. On October 15, 2005, Hintz was examined at the Carle Clinic for continuing intermittent discomfort due to his ribs. The notes from the visit state that Hintz “[h]as been taking Darvoeet [one of the two prescribed drugs] especially when he travels which is helpful in relieving the discomfort.” PRU 526. The physical examination revealed “1+ pitting edema in both of [Hintz’s] lower extremities.” PRU 526; PL SOF ¶43; Def. Resp. PL SOF ¶ 43. The treatment plan notes state that [i]n regard to his diabetic meds he is just encouraged to stay more on his diet. He is on several medications for his diabetes that at this point will not be changed. He does report some dietary noncompliance. He travels frequently which makes it difficult to maintain his diet. In regards to his rib pain he is concerned about the left upper quadrant. We’ll plan to ultrasound his upper abdomen and follow-up with him in a couple weeks * * *. PRU 527. On October 25, 2004, Hintz visited Dr. Smith-Caillouet after having reported a fall from a stepladder. PL SOF ¶ 44. Dr. Smith-Caillouet’s notes read in pertinent part: The patient said that initially when he fell his leg hurt a little bit but it wasn’t swollen and then suddenly he got acute swelling of his leg[,] got worried and came here. When we saw him he had excoriations of his left leg, it measured out to be about 41 centimeters which was about twice the size of the right leg. The foot itself felt warm although I could not appreciate any dorsalis pedis or posterior tibial pulses. The actual tibia area looked white with again the red excoriations and some blood coming from that leg area and then a cold pack was placed on the patients [sic] leg while he was sitting here trying to reach his wife. PRU 528. Dr. Smith-Caillouet sent Hintz to the emergency room. PL SOF ¶ 44. On October 27, 2004, Dr. Smith-Caillouet saw Hintz for a follow-up after Hintz’s emergency room visit. PL SOF ¶ 45. Hintz told Smith-Caillouet that he had followed the emergency room instructions regarding his leg injury but that the leg had gotten worse. The doctor’s notes state that when Smith-Caillouet saw Hintz on October 25, the circumference of Hintz’s leg was 41.5 centimeters. On October 27, the circumference was 45 centimeters and Hintz found it painful to walk. PRU 530. The leg had “lots of ecchymosis,” which is skin discoloration caused by the escape of blood into the tissues from ruptured blood vessels. PI. SOF ¶ 45 & n. 19. Smith-Caillouet assessment stated that Hintz “may now have a venous clot in his legs.” PRU 530. Smith-Caillouet’s plan was to “do arterial and venous doppler * * * the earliest my staff here could get him in.” PRU 530. On November 1, 2004, orthopedic specialist Dr. Paul F. Plattner examined Hintz. PI. SOF ¶ 46. The exam revealed that Hintz “ha[d] ecchymosis involving the entire leg from the thigh to the toes. The toe ecchymosis came on after the fall several days ago, consistent with a hematoma that extravasated distally into the leg and foot with gravity.” PRU 533. The notes continue: On exam today reveals that he has a girth of 42 cm on the right calf vs 44.5 cm on the left. The calf is supple but swollen. It is not particularly painful. He has a good range of motion of the foot and ankle with no sign of compartment syndrome. There is some blistering over the skin of the pretibial area consistent with blistering from swelling. PRU 533. Plattner’s assessment was for “hematoma of the left calf secondary to contusion.” Id. Plattner’s plan was to “continue with activity modifications and elevation * * *. Hopefully as time goes on this will improve and he will continue to improve.” Id. On November 1, 2004, Hintz visited Smith-Caillouet for multiple reasons, including for continued pain in his left lower extremity. PI. SOF ¶ 47; PRU 535. The pain had “not gotten progressively worse” but instead “just stayed the same and never [got] any better.” PRU 535. Dr. Smith-Caillouet examined Hintz’s leg and reviewed the results of Hintz’s venous duplex. Smith-Caillouet stated that the venous duplex “was significant for hematoma.” PRU 536. Dr. Smith-Caillouet’s assessment included: left leg pain, cellulitis, diabetes mellitus, and insomnia. PRU 536. “He was also given a referral to Dr. Plattner to evaluate the hematoma and drain it if needed.” Id. A November 5, 2004, examination (the identity of the doctor, as with the September 30 visit, is noted as “sgd”), stated that [Hintz] comes to the clinic today as a follow up. He reports that he did see Dr. Plattner who recommended that he have some physical therapy to help reduce the swelling in his leg. He has been seeing Physical Therapy. Today, he is concerned that his leg still looks pretty bad. There is no increase in pain. He is currently taking antibiotics. PRU 538. The notes from the doctor’s examination state that Hintz had continued ecchymosis from his hip to his toes, but that it was beginning to lighten. “Circumference of his left calf measures [41.5] cm. [sic] which is down 2 cm. [sic] since we last checked his calf circumference.” The doctor assessed Hintz with cellulitis and hematoma. Id. On December 9, 2004, an echocardiogram revealed mild left ventricular hypertrophy and abnormal septal motion. PL SOF ¶ 48; PRU 623. On January 6, 2005, Plaintiff saw Dr. Mokraoui for a yearly follow-up appointment. Def. Resp. PI. SOF ¶ 53. Dr. Mokraoui’s notes recount Hintz’s April 2004 “right fem-pop bypass surgery” and state that he “has more or less recovered” (PRU 553). The notes continue: He has some residual discomfort from his ankle in the medial malleolus up to his knee parallel to the incision line. This is despite the fact that the incision is well healed. He also apparently fell and injured his left leg a few weeks ago and sustained a hematoma in that calf. He underwent repeat vascular study in both lower extremeties and was found to have no significant vascular abnormalities. Otherwise, he has done reasonably well from a cardiac standpoint. He denies any chest pain or dyspnea. * * * RECOMMENDATIONS Although Mr. Hintz cardiac status is stable, he needs aggressive risk factor modification. * * * I also have advised him on a low carbohydrate diet. He will also need to have his blood pressure monitored closely; since he is diabetic, he needs to get his systolic down below 130 if not below 125. I encouraged him to restart his exercises in an attempt to lose some weight and improve his physical fitness. * * * I will see him in a year or earlier should he have any problems. PRU 553-54. On May 25, 2005, Dr. Lynette SmithCaillouet saw Hintz for his type II diabetes mellitus, to refill certain prescriptions, and for a complete physical examination. PL SOF ¶ 19; PRU 248. Dr. SmithCaillouet’s notes laud Hintz: I am so proud of this patient who I have had difficulty in the past getting his cholesterol and blood sugars under good control. He has actually done very very well for this patient and like I said I am very proud of him and I asked him to continue to do even better. He has a job where he travels a lot on the road and so dieting has been an issue in the past and he has been more stable at home lately and it looks like it has made a difference with regard to his overall status with regard to his cholesterol and blood sugars. He actually also has a past history of coronary artery disease. He is status post bypass grafting. He also had hurt his leg last year and that actually did heal. He fell off a ladder and his other past history includes peripheral vascular disease with Fem-Pop bypass grafting. * * * OBJECTIVE: * * * The cardiovascular exam is regular rate and rhythm. SI, S2, without any extra heart sounds or murmurs. The abdomen is soft, nontender, non distended. * * * Extremities are without clubbing, cyanosis, or edema. Neurologic exam is within normal limits. * * * No abnormalities are felt. The result of the evaluation is essentially unremarkable today. PLAN: We will check a glycohemoglobin on him in three months. We will do it in August 2005 * * * [A]lso the patient has hypercholesterolemia. His cholesterol looks great today at 157 with normal liver function tests so in six months, which will be November of 2005, we will recheck a lipid panel, liver function test and for now we will keep the Lipitor and the Gemfibrozil at their current doses. He has peripheral vascular disease and is scheduled for an arterial Doppler in June 2005 and I will await those results. PRU 248^9. On June 20, 2005, Hintz had an arterial Doppler study. PI. SOF ¶ 49. The study revealed an absence of Doppler signals in the right dorsalis pedis and left posterior tibial artery, both of which were presumed occluded. Id.; PRU 621. Then, on June 28, 2005, Hintz visited Dr. Timothy L. Connelly. PL SOF ¶20. Dr. Connelly’s note from that day states: Patient had a recent Doppler study showing a patent right popliteal perineal vein graft. His Doppler studies are basically unchanged. He can walk about a mile and a half without difficulty and overall is doing well. He complains of soreness in his feet, which awakens him at night. It is unclear whether this is truly neuropathy or not. It certainly is not rest pain. He tried Neurontin for several months and it did not help. This makes me think that it is not neuropathy. We will plan to see him back in six months with a Doppler and duplex. PRU 124. C. Hintz’s Post-Termination Medical History On December 12, 2005, a little more than four months after Hintz’s termination, Hintz underwent an arterial Doppler as a follow-up to his right popliteal-toperoneal bypass graft. PRU 610. The Doppler study revealed patent right popliteal-to-peroneal bypass graft and indications of infrapopliteal disease. Pl. SOF 51 . On December 20, 2005, Hintz saw Dr. Timothy L. Connelly and reported that he had been experiencing chest discomfort after walking for eight minutes on a treadmill. After noting Hintz’s report regarding chest pains, Dr. Connelly’s notes state the following: This is a new situation for him, whereas he was walking about a mile or so before without difficulty. His legs are clinically stable. His duplex study showed a patent graft in his right leg and a stable arterial situation. He is due to see Dr. Smith-Caillouet on Friday and has already had a stress test scheduled, but it sounds as though he is having angina. He has Nitroglycerin at home, but has not used it. We will see him again in six months to recheck is [sic] leg. PRU 568; see also Def. SOF ¶ 22. On December 28, 2005, Hintz saw Dr. Lynette Smith-Caillouet. Dr. Smith-Caillouet’s notes recount the reasons for Hintz’s visit: among other things, he complained of decreased exercise tolerance with shortness of breath and that “the cold air is affecting him for the first time in his life.” PRU 245-46, 569; Def. SOF ¶ 23; PI. SOF ¶ 21. Dr. Smith-Caillouet’s notes next recount Hintz’s medical history, which included: type 2 diabetes mellitus, hypertension, gastroesophageal reflux disease, hyperlipidemia, allergic rhinitis, coronary artery disease, peripherovascular disease, and esophageal strictures. PRU 245. The notes state that Hintz’s lungs were “clear to auscultation bilaterally.” PRU 245. His heart had a “[r]egular rate and rhythm, SI and S2 without any extra heart sounds or murmurs.” PRU 245. At the conclusion of the notes, under a section captioned “ASSESSMENT AND PLAN,” the notes state: 1. He has generalized fatigue with decreased exercise tolerance. We have a Dobutamine stress echo set up for next week and a Cardiology re-evaluation so I await those tests. 2. All of his medicines were refilled. 3. Diabetes mellitus. His glycohemoglobin was horrible at 8.3% but he just switched to Lantus so in February of 2006,1 will repeat the Aic and make appropriate adjustments to his medications. 4. He has hypertension. This is well controlled on Lisinopril and Metoprolol therapy. Will continue those medications at their current dose [sic], 5.Hyperlipidemia. His cholesterol is 153 with normal liver function tests and so will continue his Gemfibrazil and Lipitor at the current dose and reassess her [sic] cholesterol in May of 2006. PRU 246. On December 28, 2005, Hintz underwent a Dobutamine stress test. The test yielded “adequate and non-isehemic” results. Def. SOF ¶ 24; PRU 613. The report noted mild left ventricular hypertrophy. PI. SOF ¶ 52. Eight days later, on January 5, 2006, Hintz saw Dr. Malee A. Mokraoui for a yearly follow-up. Mokraoui’s notes state that [o]ver the last two months [Hintz] has noted some chest discomfort when he walks. He used to walk up to five miles at the mall without any major problems. Over the last two months, he is only able to walk for six to eight minutes and then have to sit down because of tightening sensation in his chest, as well as dyspnea. Usually the symptoms subside within two or three minutes and he is able to resume his physical activity. This is rather unusual for him. He has not had any discomfort at rest or lasting more than 20 minutes. He has not used any sublingual Nitroglycerins as he has none available. * * * [H]e has developed significant dyspepsia over the last month. * * * He underwent a Dobutamine stress echo 10 days ago which showed no evidence of myocardial ischemia. Normal wall motion at rest. As I mentioned previously, he had lost his job four months ago. He has been under a lot of stress because of that. He is currently on the hunt of [sic] a new job. PRU 262; PRU 571-72; Def. SOF ¶25; PI. SOF ¶ 22. Under a category in the notes captioned “IMPRESSION,” Dr. Mokraoui wrote: 1. Angina pectoris with negative DSE December 2005. 2. ASHD with remote coronary bypass surgery. 3. Combined hyperlipidemia. 4. Diabetes. 5. Peripheral arterial disease, status post right fem-pop bypass surgery April 2004. PRU 263. Under a category in the notes captioned “RECOMMENDATIONS,” Dr. Mokraoui wrote: Mr. Hintz’ [sic] symptoms are compatible with angina pectoris. Since his DSE was negative for myocardial ischemia, optimizing his medical therapy is not unreasonable at this point. I have added Norvasc 5 mg a day to his beta-blocker and prescribed also some sublingual Nitroglycerin to use on a prn basis. We also, during this visit, discussed his lipid panel. Although there has been some improvement in his triglyceride level, it is sill high. I have advised him to start taking some fish oil capsules three times a day. His HDL remains low and his total cholesterol to HDL is more quite elevated. He needs to bring his LDL down to 70s if he wants to get more benefit from his statin therapy. Since he is intolerant to 60 mg of Lipitor, I have switched him to Vytorin 10/[illegible] once a day. I have asked him to have a repeat lipid panel in three months prior to returning to the office for follow-up. He was also instructed to contact the office should his chest discomfort worsen, particularly if it starts occurring at rest or lasting more than 20 minutes. No other changes were made in his medication. He is scheduled for a return visit in three months. PRU 263. A little more than three weeks later, on January 30, 2006, Hintz saw Dr. SmithCaillouet again. The notes state that Hintz came into the office complaining of insomnia and congestion. The doctor’s notes further state: [H]e is able to walk he has gotten increased exercise tolerance. We did a Dobutamine stress echo. His heart is wonderful. He feels some abdominal bloating and pain in his upper right quadrant right at the tip of the liver start of the pancreas with radiation into his back and he has had cholecystectomy so we need to follow-up on that. PRU 242. His blood pressure is described as a “beautiful” 120/70. PRU 242. The doctor states that she “think[s] [Hintz] may have sleep apnea.” PRU 242. At some point — Hintz says February 9, 2006, but Defendant correctly states the date on the document indicates only that the dictation occurred on February 15, 2006 — Hintz was diagnosed with severe obstructive sleep apnea. The polysomnogram revealed a sleep apnea-hypopna index of 95.5 per hour of sleep, where normal is less than 5. His “sleep efficiency” was described as “poor” at 39% and the report notes multiple awakenings during the night. PRU 606; PI. SOF ¶ 54; Def. Resp. PI. SOF ¶ 54. On February 27, 2006, Hintz visited the emergency room at Carle Foundation Hospital. PI. SOF ¶ 24. His “chief complaint/reason for admission” was listed as “shortness of breath for two and a half months and cough for one and a half months.” PRU 213. The “Admission History and Physical” notes, prepared by Dr. Mohtraram Masood, read as follows: HISTORY OF PRESENT ILLNESS: This patient is a 58-year-old white male who has past medical history of coronary artery disease and status post bypass. Also has history of diabetes mellitus type 2. Came with complaints of progressive shortness of breath going on for about two and a half months now. According to patient, his initial shortness of breath was pretty much with exertion, and with passage of time, breathing problem got worse. Now he is short of breath at rest, according to him. It has been particularly worse for one and a half weeks now. Patient also complains of persistent, dry, hacking cough for about one and a half month’s duration. He did have some longstanding right lower left rib cage pain which he describes that he gets it on and off for about few hours. Patient had a negative stress test done in December 2005. Normal LV systolic function. He also has a lot of orthopnea with questionable PND. He complains of some weight gain and increasing pedal edema. Denies any fever or chills. Denies any nausea or vomiting. Denies any abdominal pain. Patient was seen by primary care physician last week, and she started patient on oral Levequin and Singulair, and patient’s Lasix and potassium were cut back. According to the patient, that did not improve any of his symptoms. * * * ASSESSMENT: Likely congestive heart failure. History of coronary artery disease. History of diabetes mellitus type 2. History of hypertension. History of hyperlipidemia. History of peripheral vascular disease. PLAN: Admit to telemetry floor. Will start patient on IV diuresis. Careful monitoring of his intake and output, his electrolytes, and his renal function. I will also do three serial cardiac enzymes and EKGs to follow up his EDG changes. Would require a cardiology consult. I did briefly talk to Dr. Tabriz, who was present in the emergency room and he recommended treating him for congestive heart failure. He will see patient in consult. Will do a DVT prophylaxis. As his D-dimer is elevated, will also do a V/Q scan in the emergency room. Control his diabetes and hypertension. Continue his home medication. Would repeat an echocardiogram to compare with his December echocardiogram. PRU 213-214. Apparently as part of the same emergency room visit on February 27, Hintz saw Dr. Donald Bartlett. Bartlett’s notes read as follows: S: HISTORY OF PRESENT ILLNESS: The patient is complaining of increasing shortness of breath since December, worse over the past two to three days. States that he usually walks at the mall and has only been unable [sic] to do half his usual distance and has been quite fatigued and short of breath at the end of his walk. In the last two days, has noted increased swelling in both of his ankles and feet. In the last two weeks, has gained 3-4 pounds, which is quite unusual for him. Has not been eating quite as well. Appetite has been down. Has had some upper abdominal discomfort. In fact, approximately a week and a half to two weeks ago, had an abdominal CT for abdominal discomfort and it did show some bilateral pleural effusions. He was started on Lasix 20 mg by his primary care physician, but it seemed to drop his blood pressure, so it was reduced to 20 mg [sic] a day. He denies any chest pain with this. He did have angioplasty done in 1998 and has been doing well since that time. He was found to be diabetic and subsequent workup in periods. The patient denies any episodes of diaphoresis with this. No leg pains, no syncopal episodes. 0: PHYSICAL EXAMINATION: CHEST: Clear to auscultation. Chest x-ray does show cardiomegaly, increased vascular markings and some pleural effusion, especially on the left. His electrochardiogram shows new ST segment depressions laterally consistent with lateral wall ischemia. P: 1. Hep lock will be started. The patient will be given 40 mg of Lasix while we keep a close eye on his blood pressure. We are still awaiting laboratory work. I spoke with Dr. Tabriz in Cardiology as well as Dr. Masood about admission. PRU 216. On February 28, 2006, Hintz had an echocardiogram. The comments on the report state: A TRANSTHORACIC study was performed. Trileaflet aortic valve, Mild thickening of aortic valve, Cusp motion well preserved and No aortic regurgitation detected. Mild thickening of the mitral valve leaflets, Mitral valve leaflet motion is well preserved and Mild to moderate mitral regurgitation detected. Mild thickening of tricuspid valve leaflets, Mild tricuspid regurgitation detected, Normal pulmonic valve morphology and motion and No pulmonic regurgitation detected. Normal RV chamber size, Normal RA chamber size and Moderate LA enlargement. Normal LV chamber size and Mild left ventricular hypertrophy is noted. No significant pericardial effusion noted. Mild-to-moderate global LV hypokinesis present. PRU 174. On March 2, 2006, Hintz was discharged from the hospital. His “Discharge Summary,” drafted by Dr. Ijlal Uddin, states: DISCHARGE DIAGNOSES: 1. Congestive heart failure exacerbation. 2. Hypertension. 3. Coronary artery disease. 4. Peripheral vascular disease. 5. Diabetes mellitus. 6. A trial flutter/supraventricular tachycardia. DISCHARGE ACTIVITY INSTRUCTIONS: As tolerated. HOSPITAL COURSE: Patient is a 58-year-old white male with coronary artery disease, status post CABG in 1998, hypertension, diabetes mellitus, peripheral vascular disease, admitted on February 27, 2006, with shortness of breath at rest without apnea for 5 days and bilaterial basilar lung crackles. Patient was admitted to medical floor and was treated for pulmonary edema secondary to CHF exacerbation with Lasix 40 mg twice a day. Cardiology was consulted and they agreed with the diagnosis and treatment of CHF. The patient’s shortness of breath improved with IV Lasix. Patient’s cardiac enzymes were also checked, and the CK-MB came within normal limits and troponin I was mildly elevated with values of 0.44 and 0.41. Cardiology did not think that the patient had any ischemic event going on. Patient’s renal function deteriorated post diuresis and patient’s creatinine went up to 1.6 from 1.3 and his BUN went up from 21 to 26. After that, the patient’s Lasix dose was decreased to 20 mg IV twice a day. Patient also developed hypotension and his antihypertensive medications, Lisinopril, Norvasc were held. Patient’s metoprolol dose was also held twice. Patient also had bilateral lower extremity swelling when he was admitted which responded well to Lasix. Right leg was more swelled up than left leg. Patient got Doppler studies done to rule out DVTs in right lower extremity, which came back negative. Patient developed rapid regular narrow complex tachycardia with questionable twitching movement when he moved around. Patient’s EKG showed rapid heart rate with narrow QRS complex, no ST-T wave changes. Cardiology was re-consulted. Cardiology recommended EP consult to evaluate any new cause of a trial flutter/SVT. Episodes nurse practitioner evaluated the patient and thought that this rapid ventricular rate is secondary to Metoprolol dose holding. Patient did not have any rapid ventricular response. Today, on the day of discharge, patient is asymptomatic. DISCHARGED INSTRUCTIONS: Patient is instructed to come back to the hospital if he redevelops leg swelling or if he develops difficulty breathing. He was also instructed to call 911 as soon as worrisome symptoms occur. PRU 167-68. On March 6, 2006, Hintz followed up with Dr. Smith-Caillouet after his stay at Carle Hospital in Urbana: The discharge was done by Dr. Uddin said [sic] that he had congestive heart failure exacerbation, hypertension, coronary artery disease, peripheral vascular disease, diabetes mellitus, a flutter with supraventricular tachycardia. Cardiology did not think he had an ischemic event that went on. He had a renal function that deteriorated post-diuresis. His creatinine went up and his HUN went up and so the Lasix was decreased and he was sent home. His chest x-ray today * * * looks like he just has some significant eardiomegaiy- PLAN: We will set him up with Dr. Mokraoui. He has questions about disability. He has been trying to find a job and he is under the impression he is going to die from congestive heart failure soon and so he wants to know what [sic] he should be getting disability for his congestive heart failure. I told him this was only one case and it was mild and I did not think he was disabled but I will see what Dr. Mokraoui says. PRU 236-37; Def. SOF ¶¶ 29-30. On March 21, 2006, Hintz underwent angioplasty and coronary stenting of the saphenous vein graft to the left circumflex obtuse marginal branch, as left heart catheterization identified an irregular, distal graft stenosis in the 90-99% range. PL SOF ¶ 27. On March 28, 2006, Hintz again was admitted to the hospital, complaining of a variety of symptoms, including weakness, and difficulty speaking. PRU 160. That day, he reported falling after experiencing lightheadedness. Id. After a CT scan, which did not reveal any bleeding, he was sent to the emergency room where it was noted that he had “some questionable palpitation.” Id. The notes include this “impression and plan:” By history cerebral TIA x2. Worry about a cardioembolic phenomenon. Patient has enough risk factors. He also has underlying comorbidities including coronary artery disease, peripheral vascular disease, systolic CHF dysfunction, hyperlipidemia, type-2 diabetes, hypertension. Patient will be admitted for IV heparin. Close serial neuro exam, vital exam, and vital monitoring. Admit to Telemetry. Get Neurology consult, TEE, carotid studies, and will go from there. Patient is a full code. He is agreeable with the treatment plan. Continue rest of home medication, including his diabetic meds. Close watch on his blood sugar. PRU 161. D. Plaintiffs Claim for Benefits On or about April 4, 2006, Hintz submitted a claim for long term disability benefits under the Policy. In response to the question, “What medical condition is preventing you from working,” Hintz wrote, “Congestive heart failure, main right brain artery stenosis, failed bypasses, [peripheral artery disease], diabetes.” PRU 131; PI. SOF ¶ 16. In response to the question, “How does this condition interfere with your ability to perform your job,” Hintz wrote, “Fatigue, weakness, inability to withstand travel, high risk of heart attack, stroke.” PRU 131; PI. SOF ¶ 17. Hintz listed 1998 as the year in which he was first treated for his condition, although he did not list a date on which he was “first absent” from work. PRU 130. Under the job category section, Hintz checked boxes for both “sedentary” and “other,” describing the latter as “heavy travel requirement of 30 to 90%.” PRU 130. The job description provided to Prudential by Hintz’s employer indicated that 1/3 to 2/3 of his occupation involved sitting and 1/3 or less of his occupation involved climbing of stairs, standing, and walking. Def. SOF ¶ 35. Plaintiff denies the fact statement, pointing out record evidence that his job was not sedentary and required overtime and travel. PI. Resp. Def. SOF ¶ 35. The supporting documentation for Hintz’s claim included records for medical treatment that was rendered in March and April 2006. Def. SOF ¶ 36. Hintz also submitted a list of procedures that had been performed and certain details of his medical history that predate his termination of employment, including triple bypass surgery and diabetes diagnosis (July 1998) and an arterial bypass in his right leg in April 2004. PL Resp. Def. SOF ¶ 36. Hintz’s materials also included an attending physician’s statement from Dr. Mokraoui. Dr. Mokraoui’s statement was signed on April 4, 2006. The statement says that “patient is permanent [sic] disabled from his heart condition,” that his prognosis for return of function/return to work is “poor,” and that significant loss of function occurred in August of 2005. PL SOF ¶ 18, PRU 282-83. After receiving Hintz’s claim and request of Hintz’s medical records, Prudential referred Hintz’s file for a capacity and clinical review by its clinical department. The review was to be performed by a clinical consultant (rather than by examination) and the suggested date range of the review included records from January 2005 forward. Def. SOF ¶ 37, PRU 295. Nurse consultant Collette Howe, RN, rendered a six-page report. The conclusion of the report read: It appears ee did not have any cardiac related complaints prior to 8-8-05. There are no drs tx’ment records during this time frame to support ee was not able to perform the duties of his job. EE developed chest pain, SOB approximately early November 2005. EE had normal ECHO 12-05, but developed left ventricular dysfunction as of approximately March 2006 & underwent heart stent on or about 3-21-06. As of 5-06 ee doing well with residual fatigue, weakness & to start light cardiac rehab. PRU 801; Def. SOF ¶ 38. On June 27, 2006, Prudential denied Hintz’s claim. The denial letter stated, in part, that “the information on file [indicated] that you did not have any cardiac related complaints prior to 8/8/05. There are no records of treatment during this time frame to support that you were not able to perform the duties of your occupation as of 8/9/05.” PRU 378; Def. SOF ¶ 39. Further, [y]ou did develop chest pain, and shortness of breath, approximately early 11/05. You had normal testing in 12/05, but developed left ventricular dysfunction as of, approximately, 3/06 and you underwent heart stent placement in 3/06. As of 5/06 it is noted that you are doing well with residual fatigue, and weakness. Although you would have possibly met the definition of disability in 11/05 due to your symptoms and ultimate stent placement, you were no longer covered under the [Policy] as of 8/9/05 Def. SOF If 39; PRU 378. The denial letter discussed only office visit notes from January 1, 2005, forward. PRU 377. On October 27, 2006, Prudential received Hintz’s first request for reconsideration. Def. SOF ¶ 41. The request included a letter written that same month by Dr. Mokraoui. PRU 114; see also PRU 306. Dr. Mokraoui’s letter stated that Hintz had been a patient since 2003 and that Hintz had coronary bypass surgery in 1998 and suffered from peripheral arterial disease which required surgical revascularization in April of 2004. The letter further stated: It is my opinion to a reasonable degree of medical certainty that Mr. Hintz was only able to perform the material and substantial duties of his position from April of 2004 to August of 2005 when he was terminated due to the accommodations made by his employer. It was not medically advisable for Mr. Hintz to continue working during that time frame and undoubtedly additional damage was done by doing so, but I understand he was a dedicated employee. I understand that Mr. Hintz had more and more difficulty performing the tasks of his job as time went on and that his attendance suffered over the last several months of his employment. Therefore, as soon as Mr. Hintz’ [sic] employer could not make the accommodations necessary for him to continue working, then in my opinion he was disabled at that moment and would have been previously, but for those accommodations. [The justifications offered by Prudential for denying Hintz’s claim fail] to take into consideration Mr. Hintz’s coronary bypass surgery in 1998 and leg revascularization in April 2004 and other associated co-morbid conditions. In my opinion Mr. Hintz should have stopped working after the second revascularization. * * * Although the congestive heart failure was not diagnosed until January 2006, the condition responsible for it was likely present before August of 2005. Although, as I have indicated, in my opinion Mr. Hintz was disabled even without considering the congestive heart failure. Additionally, the normal testing in December 2005 [when Hintz had a Dobutamine stress test] should not be the basis for a determination because neither the sensitivity nor the specificity of this test is 100%. The mere fact that he had a dobutamine strest [sic] test as opposed to a treadmill stress test, in itself, indicates a level of disability. * * * In other words, not being able to perform a treadmill test is not a good prognostic sign. In addition to his coronary artery disease, he also has multiple other medical problems, including diabetes, hypertension, hyperlipidemia, a trial fibrillation, peripheral arterial disease, cerebrovascular disease, ventricular dysrhythmias. These were present since 1998. Based on the review of Mr. Hintz’s records, it is my opinion that he is fully disabled and also not a candidate for vocational rehabilitation. Furthermore, his disability started in 1998 after he had his coronary artery bypass surgery. He became more incapacitated after his leg revascularization in April 2004, and continued to progress in terms of his cardiovascular disease at much faster rate since 2004. PRU 114-15. After receiving Dr. Mokraoui’s letter, Prudential requested all medical records and records pertaining to accommodations due to restrictions placed upon Hintz by Dr. Mokraoui. Def. SOF ¶ 42. Prudential also contacted Hintz’s employer to request copies of any accommodation notes or medical restrictions provided by any of Hintz’s physicians from April 2004 through August 8, 2005. Def. SOF ¶ 43. Prudential also sent an e-mail to Kathy Lucia, the Director of Retirement Benefits and HR Systems at KIK, asking for any letters regarding accommodations that were provided to the company by Mr. Hintz’s physicians. PRU 335. Hintz provided four letters from coworkers (at least one of whom was a former executive) of the company. PRU 118-121. The letter from former Vice President of Finance Randal J. Masbruch states that after Hintz’s April 2004 surgery, the company “believed [Hintz’s] health conditions to be serious and * * * made every effort to accommodate his circumstances, including allowing him to work from home, sharing duties with his staff, minimizing travel and minimizing stress as much as was possible due to the demands of his position.” PRU 118. The Masbruch letter further states that Hintz’s “health never fully recovered from the 1998 and 2004 episodes. During 2004 and 2005 his attendance at work continued to decline. * * * [H]e was having difficulty meeting the physical and stress demands of the job.” Id. Other letters noted that Hintz had a “chronic cough” that would disrupt conference calls and conversations (PRU 119, 120), experienced difficulty speaking (PRU 120, 121), could not finish meals (PRU 121), experienced physical weakness (PRU 120), and was unable to unload his vehicle or otherwise lift small items without getting tired (PRU 121). See also PI. SOF ¶¶ 57-60 On November 20, 2006, after receiving Dr. Mokraoui’s records, Prudential sent the file to a cardiologist for a review. The cardiologist was Dr. Dianne L. Zwieke, M.D., FACC, FACP, FCCP. Zwieke, whose report is dated December 15, 2006, reviewed the following: • Brief claims summary • SOAP — DCMS notes dated May 9, 2006 (Mary Lou Byrnes); June 23, 2006 (Colette Howe, R.N.); November 20, 2006 (Joseph Walles); and telephone calls dated May 2, 2006 through May 9, 2006. • Appeal letter from Attorney David Tuggle — October 23, 2006. • Group Disability Insurance Employee Statement — April 4, 2006. • Group Disability Insurance Employer Statement — May 1, 2006. • Job description for Director of Information Services at KIK Custom Products. • Medical records of Dr. Malee Mokraoui, M.D. (Cardiology Clinic) — Dan-ville Clinic. • Medical records of Lynette Smith Caillouet, M.D. (Primary Care Physician) — Danville Clinic. • Select records from Carle Hospital' — • admission from February 27, 2006 through March 2, 2006. • Admission history and physical from March 26, 2006 (believed to be Carle Hospital). Also included in this hospital record set was a Neurology consultation from Dr. Charles Davis, M.D. • Social Security Disability award from October 27, 2006. PRU 680-81; see also Def. SOF ¶ 45. Dr. Zwicke’s December 2006 report summarizes the above medical documentation. The portion of the summary that covers the period prior to his August 2005 termination up to his December 2005 Dobutamine stress test reads as follows: The medical history provided includes the following: 1. Coronary artery disease with Coronary Artery Bypass Graft Surgery in July 1998, with placement of the Left Internal Mammary Artery to the LAD, reverse saphenous vein graft from the aorta to the right coronary artery, and a reverse saphenous vein graft from the aorta to the ramus vessel. Per the medical records, Mr. Hintz was seen by his cardiologist on an annual basis. It is indicated that he underwent stress testing in December of 2004, that was within normal limits (a Dobutamine stress echo study). He underwent his annual stress testing in December of 2005 (again, a Dobutamine stress echocardiographic study), which was found to be non-ischemic (within acceptable limits). PRU 681-82. The Dr. Zwicke’s conclusions came in the form of responses to questions. Zwieke opined on current restrictions that would be “expected” given Zwicke’s review of Hintz’s medical records. Def. SOF ¶ 46. Zwicke’s responses to questions 3 and 4 speak to conclusions regarding Hintz’s health prior to his termination, while question 5 relates in general to Hintz’s prognosis: 3. Does the available medical documentation indicate in any capacity, that Mr. Hintz was on any medically required restrictions and limitations from his physician from 2004 through August 9, 2005? If so, please be specific as to what these restrictions and limitations were and which physician noted them. If there is no evidence that Mr. Hintz has any documented restrictions and limitations during this time period, please indicate so. Based upon the medical records, Mr. Hintz has no medically documented restrictions or limitations from his physicians from the available medical records from 2004 through August 9, 2005. Additionally, there are no medically treated illnesses that would warrant restrictions and limitations cited during this time period. 4. Please specify what Mr. Hintz received medical treatment for specifically in the six months leading up to August 9, 2005. Is there evidence supporting that his cardiac symptoms had worsened during that time period? If so, please be specific and also provide your opinion as to any appropriate restrictions/limitations in functioning that might apply. Mr. Hintz’s last visit to his cardiologist, prior to his work cessation, was on 1/6/05. At that time, he was seen for a scheduled “yearly followup,” with no particular cardiac complaints. He did state that he had fallen several weeks before and had a calf hematoma. He did undergo bilateral lower extremity vascular studies, which were within acceptable limits. He had mild ankle discomfort that required no further evaluation. It was stated that he had a right fem-pop bypass surgery in March of 2004, but in reality the vascular surgery records indicate that this is a right popliteal-peroneal bypass (lower portion of the extremity, not upper portion of the extremity). Specifically, this note indicates no chest pain or dyspnea on exertion, with a normal Dobutamine stress test completed in December 2004. He was recommended to continue increasing his exercise and lose weight. On 5/25/05, Mr. Hintz was seen by his primary care physician for a routine history and physical with medication refills. He was also seen by his vascular surgeon on 6/28/05, for followup of the right popliteal-peroneal graft. At that time, he stated he could walk one and one-half miles, but did report some foot discomfort that was questionably Neuropathy. The last visit indicated prior to work cessation was on 7/6/05, with his primary care physician, for a diagnosis of Sinusitus that was treated with nasal steroids and oral antibiotics. During the seven months prior to cessation of employment, there were no specific cardiac treated symptoms, illness, or significant changes in therapy. 5. If medical records are indicating significant impairment, please comment on expected treatment, duration and prognosis (Is improvement likely?). The medical records indicate no significant impairment from a cardiac point of view. Future treatment dictates that Mr. Hintz aggressively treat his sleep disorder (diagnosed with severe obstructive sleep apnea that is untreated). Untreated sleep apnea affects every organ in the body and results in fatigue, fluid retention, eventual heart failure, and multiple other organ dysfunction, as well as poor endurance, poor exercise, sleepiness, neurologic symptoms, etc. Treatment of his chronic underlying illness will be for lifetime [sic] and, at this point in time, he appears to have a good prognosis. PRU 686-87. On December 27, 2006, Prudential again contacted Kathy Lucia. Prudential’s notes of the telephone conversation indicate that Lucia said that she found nothing in Hintz’s human resources file to indicate “that anything came through HR regarding work accommodations and restrictions.” PRU 339. Lucia further stated that she “spoke to clmts [sic] prior boss who no longer works for the company.” Id. The former boss, who is not identified by name, “advised her that he was not aware of any restrictions/aecommodations requested by the clmt [sic] or his physicians either[.]” Id. Hintz disputes this and submitted a letter from John Ahrendt, a former Vice-President of Human Resources through June 2005, which states that Hintz “was working under medical restrictions up until his involuntary termination.” PRU 463. By December 27, 2005, Prudential was ready to uphold the denial of benefits. Def. SOF ¶ 50. Before sending out the letter, however, counsel for Hintz submitted approximately 250 pages of medical information. Prudential, upon receiving the information, observed that “it does appear that [the] medical info was submitted for the period 2003-2004 which we did not have in file, as well as updated medical from 4/06-10/06 which we also did not have in file.” PRU 313. The information was forwarded to Dr. Zwicke for a review and to prepare an addendum to her initial report. Def. SOF ¶ 52. On January 22, 2007, Zwicke provided the addendum to her December 2006 report. Def. SOF ¶ 53. Dr. Zwicke’s addendum summarized the additional documents that she received: • Forty-four outpatient office visits including: Primary Care Physician, Paul Wilson, M.D.; Primary Care Physician, Lynette Smith Callouet [sic], M.D.; Surgical Clinic, Royce Larson, M.D.; Cardiology Clinic, Malee A. Mokraoui, M.D.; Vascular Surgery Clinic, unidentifiable physician name; Sleep Medicine Clinic; Orthopedic Clinic, with unidentifiable physician name[;] Vascular Surgery Clinic, Timothy Connelly, M.D.; Cardiovascular Surgery Clinic, unidentifiable physician name; and Neurology Clinic, Charles Davies, M.D. • Fifty contacts for diagnostic studies including laboratory reports, sleep lab reports, Dobutamine stress echocardiographic reports, lower extremity vein mapping, abdominal aortogram with run off of legs, right lower extremity surgical procedure notes, lower extremity arterial duplex, ultrasound graft surveillance reports, echocardiographic study, ultrasound of the abdomen and abdominal x-rays series. • The only additional information provided in these records from that previously reviewed in my report of December 15, 2006, is the fact that Mr. Hintz, Jr., requested information on early retirement during his office visit with his primary care physician, on November 18, 2003. He followed this with a request from the Cardiologist (Dr. Mokraoui), with a question of ‘wants to know medical requirements for long-term disability,” at the time of his annual visit on December 15, 2003. These requests were made despite the fact that there was no substantive medical data in either of these clinic notes to warrant medical retirement or medical long-term disability. PRU 472-74. Dr. Zwicke stated that the review of the additional records provided by counsel for Plaintiff did not alter the analysis of the December 2006 report. (Plaintiff states that Zwicke again “ignored substantial treatment notes” but instead of citing the critical, ignored notes, Plaintiff c