Frerichs v. Hartford Life & Accident Insurance (875 F. Supp. 2d 923, 2012)

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Defendant’s Motion for Summary Judgment [Doc. No. 47] and Plaintiffs Motion for Summary Judgment [Doc. No. 52], For the reasons set forth herein, Defendant’s motion is denied, and Plaintiffs motion is granted.

Plaintiff Craig Frerichs graduated from the University of Minnesota Dental School in 1978 and began working in his field immediately thereafter. (See Administrative Record (“AR”)-HART000725.) From 1999 through 2006, he was employed by PDG, PA/The Dental Specialists (“PDG” or “Park Dental Group”). (AR-HART000652.) Frerichs was an eligible plan participant in his employer’s benefit plan (the “Plan”), for which PDG obtained a group insurance policy (the “Policy”) from Defendant Hartford Life and Accident Insurance Company (“Hartford”). (AR-HART000903-27.) The Policy provided long-term disability coverage and other benefits to eligible employees. (Id.)

In July 2006, Dr. Frerichs filed a claim for long-term disability under the Policy, identifying spinal degeneration and depression as his disabling conditions. (AR-HART000710.) Initially, Hartford approved Plaintiffs claim and paid benefits from May 2006 until April 2009. (AR-HART000023.) However, after receiving an anonymous tip in 2008, Hartford investigated Plaintiffs claim and conducted surveillance of Dr. Frerichs. (AR-HART000188.) Following its investigation and review of Plaintiffs claim, Hartford terminated his long-term disability benefits in April 2009. (HART000023-29.) Dr. Freriehs appealed the termination decision. (AR-HART000275-96.) Hartford briefly reinstated Freriehs’ disability benefits from April to August 2009 while he recovered from rotator cuff surgery (AR-HART000002), but, in November 2009, affirmed its decision that Plaintiffs back pain and depression did not render him totally disabled from working as a dentist. (AR-HART000002-12.)

Plaintiff filed the instant action on August 4, 2010, alleging that Hartford breached its contract by failing to provide long-term disability benefits, in violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). (Compl. [Doc. No. 1].) The parties have filed cross motions for summary judgment.

I. BACKGROUND

A. The Policy

The Policy delegates to Hartford “full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Policy.” (AR-HART000922.) The Policy defines an employee as “disabled” when he or she is “prevented from performing one or more of the Essential Duties of Your Occupation.” (AR-HART000918.) An “essential duty” is one that: “(1) is substantial, not incidental; (2) is fundamental or inherent to the occupation; and (3) can not be reasonably omitted or changed.” (Id.) “Your Occupation” means “your occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job you are performing for a specific employer or at a specific location.” (AR-HART000921.)

B. Medical Evidence 2005-2006

1. Back Pain

Beginning in approximately 1986, Dr. Freriehs experienced back strain and associated pain. (AR-HART000726.) He found that chiropractic care and massage were helpful in managing his back pain. (Id.) While at work at Park Dental on September 15, 2005, Plaintiff reported that he was “bending over a patient and twisting” in order to obtain a better view, when he experienced extreme pain in his back and legs. (AR-HART000708.) Dr. Frerichs contends that the pain was so extreme that it took his breath away, sending him to the floor. (AR-HART000727.) Dr. Freriehs met with his treating physician, Dr. Theodore Groskreutz, the following day. (AR-HART000680.) Dr. Groskreutz noted Plaintiffs chronic lower back pain had been present for at least a three year period and that an MRI showed degenerative disc disease. (Id.) Dr. Groskreutz prescribed a steroid, a Medrol Dosepak, and ordered an MRI of Freriehs’ lumbar spine. (Id.) Dr. Freriehs was off work for approximately 43 days and returned to full-time work on December 1, 2005. (AR-HART000716-17.)

During his time off work in September 2005, Dr. Freriehs treated with orthopedic surgeon Dr. Bryan Lynn at the Institute for Low Back and Neck Care in Minneapolis. (AR-HART000652.) Dr. Lynn noted that Frerich’s medical history was significant for lower back pain and depression. (Id.) He reviewed Plaintiffs most recent MRI scans, which he found to demonstrate moderately advanced disc degeneration at L4-5, with noted reactive end-plate changes. (Id.)

Dr. Freriehs underwent left L5 nerve root block surgery on September 27, 2005, and reported a 60% decrease in pain symptoms following the procedure. (AR-HART000654.) At a follow-up visit with Dr. Lynn on October 10, 2005, however, he reported a return in pain symptoms. (AR-HART000656.)

On October 20, 2005, Dr. Frerichs underwent a laminectomy of the L5-S1 level, performed by Dr. Lynn. (AR-HART000660.) At a follow-up appointment with Dr. Lynn on November 3, 2005, Dr. Frerichs reported feeling much better following the surgery. (AR-HART000663.) Dr. Lynn discussed Dr. Frerichs’ possible return to work on a part-time basis: “I suggested he wear [a] brace to try and help with his twisting.” (Id.) In a narrative attached to his 2006 application for long-term disability benefits, Dr. Frerichs stated that while the surgery alleviated much of his pain, “there was no way the surgeon could restore my abilities to what they once were.” (AR-HART000729.) Plaintiff indicated that it became “increasingly more evident that [his] back pain affect[ed] everything [he did] in the office.” (Id.) Dr. Frerichs noted that he could not sit without pain and that he could not take narcotic pain medications because of their adverse effect on his concentration and thinking. (Id.) As a result, he became “very distraught and deeply depressed.” (Id.) On February 25, 2006, he took an overdose of his wife’s Ativan tablets in an attempt to commit suicide. (Id.) He was admitted to the hospital for severe depression. (AR-HART000668.)

Also in February 2006, Dr. Frerichs met with Dr. Lynn, who reported that Frerichs had been doing very well until recently, when he fell on the floor. (Id.) Dr. Lynn diagnosed “acute exacerbation of low back pain.” (Id.) Dr. Lynn recommended that Plaintiff continue taking Ibuprofen and recommended that he consider the use of a muscle relaxant. (Id.)

Dr. Frerichs continued treatment with Dr. Lynn, who recommended that Dr. Frerichs undergo a Functional Capacities Evaluation (“FCE”) to “quantify his physical limitations.” (AR-HART000673.) Dr. Lynn recommended the FCE in light of Plaintiffs multiple issues:

The patient has multiple issues, he reports, related to concerns regarding his ability to continue work as a dentist. In my experience, it would be extraordinarily unusual for someone to be completely disabled from work following a lumbar discectomy. I believe a very large percentage of Mr. Frerichs’ overall functional disability is related to his depression. However, to quantify his physical limitations, I recommend that we obtain [an FCE], I also advised him that it would be a good idea to quantify what physical activities are demanded of him in his typical work duties. His lawyer will contact me by letter, if necessary, if other questions need to be answered. I believe at some point in the future, a psychiatric evaluation will have to play a role in determining Mr. Frerichs’ degree of disability.

(Id.) At his next appointment with Dr. Lynn, on June 27, 2006, Dr. Lynn noted that Plaintiff continued to report low back discomfort. (AR-HART000674.) At that visit, Dr. Frerichs reported a shooting pain through his back that lasted for approximately five seconds, which he had been experiencing for the previous three or four days. (Id.) Dr. Lynn recommended a consultation with “a Med-X type of lumbar strengthening/stabilization program.” (Id.) Dr. Lynn later assessed Dr. Frerichs as “able to work with restrictions” from June 2, 2006 through August 2, 2006. (AR-HART000675.)

2. Depression

As noted, Dr. Frerichs has a history of depression, which he began experiencing in the early 1990’s, and for which he sought psychiatric care, including psychotropic medication and counseling. (AR-HART000412; HART000799.) In 2005, Dr. Frerichs treated with Dr. John Curran for his depression, for which he was prescribed medications including Wellbutrin, Trazodone and Effexor. (AR-HART000583; HART000799.) As discussed previously, in February 2006, Plaintiff attempted suicide by taking an overdose of Ativan medication, which resulted in his hospitalization for eight days at Abbott Northwestern Hospital for major depression and suicide attempt. (AR-HART000800; HART000850.) Following outpatient treatment, he met with Dr. Cur-ran again in April 2006 and revealed a previous suicide attempt in December 2005. (AR-HART000585.)

In the spring of 2006, Plaintiff began treating with psychiatrist Dr. Larry Berger, who diagnosed major depression, recurrent, with moderate to severe intensity. (AR-HART000786.) As part of Plaintiffs application for long-term disability, in June 2006, Dr. Berger completed an “Attending Physician’s Statement of Disability,” stating that Plaintiff was “not able to do clinical dentistry.” (AR-HART000713.)

C. Claim for Long-Term Disability Benefits

On July 5, 2006, Plaintiff filed a claim for long-term disability benefits with Hartford. (AR-HART000710.) He indicated that he was unable to perform clinical dentistry, noting that he was unable “to sit, stand, twist, bend over, walk or remain in a static position comfortably.” (AR-HART000708.) In support of his application, Plaintiff submitted an “Attending Physician’s Statement of Disability” from Dr. Lynn, his orthopedic surgeon, and from Dr. Larry Berger, his treating psychiatrist. (AR-HART000712-15.) Dr. Lynn indicated that Plaintiffs primary diagnosis was “degeneration of lumbar or lumbosacral” spine, for which he should be restricted to “light” duty work, which required changes to a sitting position every 30 minutes. (Id.; ARHART000731.) In addition, Dr. Lynn indicated that Plaintiffs “psychiatric impairment” showed “moderate impairment in occupational functioning. Limited in performing most occupational duties.” (AR-HART000715.) Dr. Berger indicated that Plaintiffs primary diagnosis was “major depression, recurrent, severe.” (AR-HART000712.) Dr. Berger noted that Plaintiff was “not able to do clinical dentistry” and indicated that his psychiatric impairment was a “major impairment in several areas — work, family relations. Avoidant behavior — -is unable to work.” (AR-HART000713.)

Plaintiff began treatment with Dr. Manuel Pinto of the Twin Cities Spine Center on August 10, 2006. (AR-HART000608.) Dr. Pinto assessed Plaintiffs persistent back and bilateral lower extremity pain, and also noted evidence of lumbar degenerative disease at L4-5 and L5-S1. (Id.) He recommended a new MRI to determine any level of persistent stenosis, stating, “His pain complaints, at his point in time, seem to be more with sitting, which implicates likely diseogenic problems.” (Id.) Plaintiff underwent the suggested MRI, which showed “severe concordant pain at L4-5 and L5-S1 with normal morphology and mild foraminal stenosis at L4-5 and L5-S1. (AR-HART000760.)

To apparently supplement Plaintiffs long-term disability benefits application, Dr. Pinto provided an “Attending Physician’s Statement of Continued Disability” form to Hartford. In the form, dated October 31, 2006, he noted Plaintiffs disco-grams and MRI and diagnosed Plaintiff with degenerative disc disease at L4-5 and L5-S. (AR-HART000747.) As to Plaintiffs psychiatric impairment, Dr. Pinto checked the box indicating “major impairment in several areas — work, family relations. Avoidant behavior, neglects family, is unable to work.” (Id.)

A September 7, 2006 record indicates that Dr. Pinto discussed surgical outcomes, risks and complications with Dr. Frerichs, who felt that he had “no other options” other than surgery. (AR-HART000762.) The record also shows that Dr. Pinto completed a “Return to Work Form” indicating that Frerichs had been unable to work since February 25, 2006, and Dr. Pinto anticipated that he would be unable to work until recovery from his surgery, which would take approximately eight to twelve weeks. (Id,.)

On October 9, 2006, Hartford informed Dr. Frerichs that his claim for long-term disability benefits was approved. (AR-HART000768.) Hartford found that Plaintiff met the qualification requirements in October 2005, following his back procedure, but noted that benefits could not begin until May 26, 2006, because Plaintiff had attempted to return to work for a period in the winter of 2006. (Id.)

D. Medical Evidence 2006-2007

1. Back Pain

On November 13, 2006, Plaintiff underwent surgery and, at a follow-up appointment on February 2, 2007, it was recommended that he remain off work for another three months, or through his next office visit with Dr. Pinto in May 2007. (See AR-HART000500.) At Plaintiffs May 15, 2007 visit with Dr. Pinto, it was noted that Plaintiff was doing well, although pain was still present. (Id.)

On July 14, 2007, Hartford contacted Dr. Pinto, seeking his assessment of Plaintiffs ability to work, with or without limitations. (Id.) Hartford referenced the medical record of September 7, 2006, in which Dr. Pinto indicated that Plaintiff would be unable to work for eight to twelve weeks following surgery. (Id.)

In his one-line response to Hartford of August 28, 2007, Dr. Pinto simply noted, “recommend functional capacities assessment to establish restrictions.” (AR-HART000499.) Apparently on his own behalf, Plaintiff arranged for an Occupational Therapy Evaluation (“OTE”). The OTE was conducted on October 9, 2007 by OTE evaluator Jessica Ogren of NovaCare Rehabilitation. (AR-HART00328-29.) Ms. Ogren conducted testing in which Dr. Frerichs simulated a dental procedure on a patient, requiring him to sit and fully flex his spine, while rotating and laterally flexing to the right. (AR-HART00329.) “He was asked to simulate this for 5 mins, as he would need to do for prolonged periods at work. He was only in the position for 26 seconds before feeling shooting pain in his low back and needing to sit up and walk.” (Id.) Ms. Ogren identified “position tolerance” as Plaintiffs major area of dysfunction and made several recommendations, which include the following:

1. It is recommended that Mr. Frerichs find work on a full-time basis within the abilities as stated on the enclosed task table and per Dr. Pinto’s approval. He is capable of lifting up to 35 lbs. occasionally and can complete trunk flexion activities in sitting and standing on an occasional/frequent basis.

2. Mr. Frerichs would be unable to tolerate traditional dentistry at this time due to his inability to tolerate long durations of trunk flexion combined with lateral flexion/rotation as required when performing procedures on patients. He would be capable of performing general dental exams and other basic dentistry tasks that do not require prolonged bending with twisting. He could search for dentistry jobs that require exams and general preventive care only or perhaps work in more of an administrative position.

(Id.) Dr. Frerichs forwarded a copy of the OTE to Dr. Pinto, along with “Capacities Evaluation” forms, and asked that Dr. Pinto review the OTE, complete the forms and forward them to Hartford. (AR-HART000463.)

Dr. Pinto completed the forms, indicating that Dr. Frerichs was off work until surgery on November 9, 2007, and would need to remain off work for six to eight weeks post-surgery. (AR-HART000471.) Dr. Pinto noted that he would reassess Plaintiffs abilities and limitations at his reevaluation appointment in December 2007. In a November 6, 2007 “Physical Capacities Evaluation,” Dr. Pinto noted that Plaintiff could sit for a maximum of one hour at a time, occasionally drive, occasionally reach above the shoulder, and never reach at the waist or below waist level. (AR-HART000470.) A March 12, 2008 note by Cate Pandiscio, Dr. Pinto’s certified physician’s assistant, writing on his behalf, indicated that the office had received and reviewed Ms. Ogren’s OTE:

We certainly read through the functional evaluation and agree that it is reasonable that Dr. Frerichs looks at some medium type work duties; obviously limiting his ability to perform general dentistry exams. This is because of the positions that he needs to get into in order to do this. This, however, does not preclude him from being gainfully employed in some other arena.

(AR-HART000409.)

2. Depression

In February 2007, Dr. Berger, Plaintiffs psychiatrist, completed a “Psychiatric Attending Physicians’ Statement of Disability” in which he diagnosed Plaintiff with major depression, panic disorder and bipolar disorder. (AR-HART000737--38.)

E. Review and Investigation of Plaintiff’s Award of Benefits

In June 2008, Hartford received an unsolicited, anonymous tip alleging that Plaintiff was involved in activities inconsistent with his claimed disabilities. (AR-HART000178-79.) The alleged activities included the development of a dentistry-related business venture in Mexico and Plaintiffs recertification in scuba diving. (Id.) Hartford decided to review Plaintiffs claim and hired a private investigator to conduct surveillance of Plaintiff. (AR-HART000178; HART001170-97.) The investigator conducted video surveillance in July 2008 showing Dr. Frerichs and his girlfriend driving from Minnesota to Kentucky in order to deliver a car to Frerichs’ son. (AR-HART001175-1188.) Over the course of two days, the video shows Dr. Frerichs loading the car, driving for most of the trip, stopping for gas and food, and putting air in the tires of the car. (Id.) Plaintiff drove for approximately nine hours on the first day of the trip and nearly seven hours on the second day of the trip, spending additional time each day in the car as a passenger. (AR-HART001198; HART001202.)

Hartford followed up by arranging an interview between Plaintiff and Hartford investigator Stephen Murray, on October 8, 2008. (AR-HART001199-1203.) Dr. Frerichs completed a written statement, indicating that his back pain significantly limited his physical activity, that he had difficulty concentrating, and that persistent chronic pain in his lower back prevented him from maintaining a static fixed position for longer than two minutes, all of which prevented him from working as a dentist. (AR-HART001157.) He stated that he had trouble closing the back of his sport utility vehicle because it hurt his lower back to do so, and that he could drive for about two hours before needing to get out and stretch for about ten minutes. (AR-HART001159; HART001161.) While he indicated that he could typically drive for no more than three hours a day, if he took pain medication and/or wore a brace, he could tolerate driving for longer periods of time. (Id.) After reviewing the video surveillance, Dr. Frerichs stated that it did not accurately reflect his level of functionality. (AR-HART001199.) He asserted that he was able to drive for an extended period because he took extra pain medicine, was able to change positions frequently and “sucked it up.” (AR-HART001161; HART001199-1200.) In submissions from Plaintiff and his girlfriend, he noted that the drive was necessary for several reasons: (1) he and his son had no other reasonable way to exchange vehicles; (2) the drive did not require Dr. Frerichs to bend or flex, unsupported; and (3) the video did not capture the pain he suffered in the evening as a result of the drive. (AR-HART00146171.)

Hartford sent a copy of the video to three of Plaintiffs treating physicians— Dr. Spears, Dr. Trobiani and Dr. Berger. (AR-HART000159; HART000149 (Trobiani); HART001447 (Spears); HART001455 (Berger).) Dr. Trobiani refused to watch the video due to a disagreement with Hartford about his compensation for doing so, Dr. Spears did not watch it, indicating that he was not trained to conduct a, functional assessment, and Dr. Berger noted that Plaintiff continued to report difficulty with memory, pain and cognitive issues. (Id.) Although it is unclear whether Hartford provided Dr. Pinto with a copy of the video, their records show that “Dr. Pinto stated that he had not seen the video.” (AR-HART000149.)

In January 2009, Hartford retained Susan McPherson, Ph.D., to conduct a medical examination and records review Independent Medical Examination (“IME”). Dr. McPherson found that Dr. Frerichs met the criteria for “Major Depressive Disorder Recurrent, in partial remission.” (AR-HART000351.) Hartford asked McPherson whether Plaintiff could perform “in an occupational setting,” to which she responded:

As stated above, test results reveal the claimant is able to pay attention for sustained periods of time. He is able to learn and retain new information which translates’ to an ability to learn new job tasks and remember to complete job duties he is asked to perform.

(AR-HART000353.)

In March 2009, Hartford obtained an independent medical record review by an orthopedic surgeon through MES Solutions, a medical consulting group. (AR-HART001244-48; HART001358-90.) Dr. David Bauer was the orthopedic surgeon who reviewed Dr. Frerichs’ medical records and the surveillance video and spoke to two of Plaintiffs treating physicians, Dr. Pinto and Dr. Spears. (AR-HART001389; HART001247.) Dr. Bauer opined that Dr. Frerichs was able to perform “full time work” at a medium level of functional capacity,” or even general dentistry exams, but was unable to perform the tasks required for “traditional dentistry,” stating:

There is no reason to dispute the finding that “[Dr. Frerichs] would be unable to tolerate traditional dentistry secondary to his inability to tolerate long duration of trunk flexion combined with lateral flexion/rotation as required [for] performing procedures on patients. He would be capable of performing general dentistry exams and other basic dentistry tasks that do not require prolonged bending with twisting.”

(AR-HART000989) (quoting 10/9/07 OTE, AR-HART00329).

On April 7, 2009, Hartford terminated Plaintiffs long-term disability benefits, on both physical and psychological bases. (AR-HART001231-37.) In its letter, Hartford noted Dr. Bauer’s assessment that Plaintiff was capable of performing the “Essential Duties” required of a dentist from a physical standpoint. (AR-HART001236.) “In addition, the independent neuropsychological examination revealed that you do not have restrictions or limitations from a cognitive standpoint.” (Id.) The letter also noted that Hartford’s Medical Case Manager found that Plaintiff appeared

to have the ability of functioning at a light level, consistent with a 40 hour week. This would consist of standing, walking and/or sitting unlimited throughout the day, and allows for full use of the upper extremities, such as with frequent fingering, handling, reaching in all directions and typing. Lifting/carrying would be limited to 10 pounds on a frequent basis, up to 20 pounds occasionally. If sitting is primarily required throughout the day, afforded will be the opportunity [sic] to change positions as needed for comfort (by walking, standing or moving about).

(AR-HART001235.)

F. Medical Evidence 2008-2009

1. Back Pain

Throughout 2008 and 2009, Dr. Frerichs continued treatment and therapy for pain symptoms. (See AR-HART001253-57; HART001293-96; HART001281-84; HART001277-80; HART001273-76.) For example, he treated with internist Dr. Spears in the fall of 2008, for back pain. (See AR-HART001525-26.) Dr. Spears prescribed Tramadol, a pain reliever. (AR-HART001529.) Dr. Frerichs continued to report lower left back pain, which, on one occasion, worsened when he attempted to assume a clinical dentistry position with bending, rotation and twisting. (Id.)

In February 2009, Dr. Frerichs was involved in a rear-end collision, after which he reported a worsening in back pain. (AR-HART001289-92.) He visited Dr. Pinto within a few days of the collision, complaining of residual low back pain. (AR-HART001324.) Dr. Pinto ordered an MRI of the lumbar spine, conducted on March 4, 2009. Dr. Frerichs reviewed the results of the MRI with Dr. Pinto on March 10, 2009. Dr. Pinto found that the spinal degeneration had migrated above the spinal fusions, with disc degeneration at L3-4, with herniations, some facet arthritis and some left L3^4 foraminal steno-sis. (AR-HART001325.) Dr. Pinto noted:

Certainly the findings explain the patient’s symptoms. If his pain eventually gets so severe that he would consider surgical treatment, then discograms would be done. If discograms confirmed the presence of symptomatic lumbar disc disease at L3^1, then he would be a candidate for an XLIF at L3-4; just a minimally invasive procedure.

(Id.)

Plaintiff was approved for Social Security Disability Benefits on March 11, 2009. (AR-HART000376-78.) While the Agency initially denied benefits, they were awarded by Administrative Law Judge (“ALJ”) Larry Meuwissen based on the written record. (AR-HART000381-85.) The ALJ found that Plaintiff had the following severe impairments: major depression, degenerative disk disease and spinal stenosis. (AR-HART000383.) He found that Dr. Frerichs was unable to perform his past relevant work as a dentist, that his acquired job skills did not transfer to other occupations within his residual functional capacity and that there were no jobs existing in significant numbers in the national economy that Frerichs could perform. (AR-HART000385.)

In 2009, Plaintiff had developed shoulder pain, resulting in rotator cuff surgery in April 2009. (AR-HART.001061-65; HART000370-74; HART001070-01.) Later in April, Dr. Pinto evaluated the recently ordered diseograms. (AR-HART000365-66.) The reviewing physician, Dr. Blake Johnson, reported that the discogram process, at L3-4, produced “severe (8/10) concordant low back pain and left leg pain.” (AR-HART000365.) The diseograms showed “disc morphology is abnormal with circumferential outer annular fissuring ... in contrast to the preoperative Discogram dated 8/22/06 which showed normal disc morphology.” (Id.) Dr. Johnson also noted that Plaintiff demonstrated normal pain tolerance and that his responses to injections were “judged to be valid.” (Id.)

In his review of the diseograms with Dr. Frerichs, Dr. Pinto concluded that

[t]he diseograms certainly were valid.... L3-4 was torn and gave him 8/10 concordant back pain with left leg pain. We know that he has developed some mild stenosis at L3^t. He certainly has pathology that justifies the presence of the low back pain. Difficulty sitting is a very common complaint with patients with symptomatic lumbar disc derangement like Mr. Frerichs.

(AR-HART000367.) Dr. Pinto also advised Plaintiff to undergo a full FCE so that Dr. Pinto would be better able to establish Frerichs’work restrictions. (Id.)

In May 2009, Dr. Frerichs consulted with Dr. John Sherman of Orthopedic Consultants. Dr. Sherman conducted a physical and reviewed Plaintiffs most recent MRI. (AR-HART000368-9; HART001034.) He noted that Dr. Frerichs was experiencing 90% back pain and 10% leg pain. He concluded that “Mr. Frerichs’ symptoms are consistent with chronic pain syndrome.” (Id. at HART000369.) He advised against surgery but recommended evaluation for pain control at a nonpharmaeologic pain clinic. (Id-)

On August 4, 2009, Dr. Frerichs apparently arranged for an FCE with Jessica Ogren on his own volition “to determine his abilities to tolerate work in his career of Dentistry.” (AR-HART001034.) Ogren had previously conducted the OTE of Plaintiff in October 2007. Ms. Ogren observed Plaintiff perform a variety of tasks including pushing, pulling, sitting, working bent over while sitting, and forward reaching. (AR-HART001036.) She identified “position tolerance” as the major area of dysfunction and noted that “[d]e-creased muscle strength in the low back” and “[plain in the low back” were the factors underlying Plaintiffs performance. (AR-HART001037.) As requested by Ogren, Plaintiff contacted the office the day following the testing and reported significant levels of low back pain (8.5 on a scale of 1-10), stiffness and difficulty bending. (Id.) Ms. Ogren made the following recommendations in the FCE:

1. Mr. Frerichs would be unable to tolerate traditional dentistry at this time due to his inability to tolerate long durations of trunk flexion combined with lateral flexion/rotation as required when performing procedures on patients. In addition, he cannot tolerate sitting more than frequently and the demands of dentistry require constant sitting. He would be capable of performing general dental exams and other basic dentistry tasks that do not require prolonged bending with twisting (no procedures). Though finding/securing a job at this capacity would be very difficult given the length of time he has been out of his field.

2. It is recommended that Mr. Frerichs find work on a full-time basis within the abilities as stated on the enclosed task table and per his physician’s approval. He is capable of lifting up to 20 lbs. occasionally and can complete trunk flexion activities in sitting and standing on an occasional basis.

(Id.)

Plaintiff treated with Dr. Pinto the following month, on September 22, 2009. (CF001555, Ex. A to Aff. of Todd Johnson.) Dr. Pinto noted Plaintiffs recent FCE, stating, “He came in today with an FCE which shows that indeed he has some significant restrictions that interferes [sic] with his ability to work at his regular job as a dentist (operate dentistry). The FCE also clearly states he is able to work with modified restrictions.” (Id.) Dr. Pinto completed a “Return to Work” form that day, indicating that “Mr. Frerichs may return to work as light duty, only, following the restrictions outlined in his FCE 08/04/09. Non operative dentistry. Short duration procedures only.” (CF001556, Ex. A to Johnson Aff.)

2. Depression

In April 2008, Dr. Berger completed another “Attending Physician’s Statement,” noting, “I don’t think [Dr. Frerichs] is able to be employed” (AR-HART000391), and “[h]e can’t work as a dentist because of his back limitations.” (AR-HART000390; HART000410-17.)

In December 2008, Dr. Berger recommended a follow-up assessment with neuropsychologist Dr. Thomas Misukanis to evaluate Plaintiffs cognitive and psychological functioning. (See AR-HART000334-35.) Dr. Misukanis noted that since Plaintiffs initial assessment, Dr. Berger had revised his diagnosis away from bipolar disorder and had suggested the follow-up evaluation “to evaluate for potential improvement in Dr. Frerichs’ cognitive and psychological functioning.” (AR-HART000334.) Dr. Misukanis administered a variety of tests and found “mild improvement in Dr. Frerichs’ mentation and psychological functioning.” (AR-HART000335.) Elaborating on his conclusions, Dr. Misukanis stated:

These improvements are certainly cause for encouragement. At the same time, he continues to demonstrate minor cognitive difficulties and a significant psychological disturbance which, in my opinion, would preclude a return to work as a dentist anytime in the near future. The patient may be capable of employment in other types of work, though this would largely be contingent on his psychological status.

(Id.)

G. Appeal of Termination of Benefits

Dr. Frerichs timely appealed the termination of benefits. In connection with his appeal, he provided to Hartford, among other things, copies of updated medical records, the favorable Social Security ruling, and a neuropsychological re-evaluation report from Dr. Misukanis. (AR-HRT000006-7.)

Hartford retained the Medical Consultants Network to provide a physician to conduct an IME. Orthopedist Dr. Stephen Barron examined Plaintiff on August 17, 2009, as part of the IME and provided a report. (AR-HART001045-54.) In his report, Dr. Barron listed the various medical records that he had reviewed in connection with reaching his opinion, but did not list the August 4, 2009 FCE conducted by Jessica Ogren. (Id.) Dr. Barron also did not review Dr. Pinto’s September 22, 2009 records, as Dr. Barron’s IME preceded Plaintiffs September appointments with Dr. Pinto. Dr. Barron found that Plaintiff needed permanent restrictions, stating:

In my opinion, based upon his operative procedures, my review of the medical records, his physical examination, and his surveillance video, he does need permanent restrictions. In my opinion, he should not lift over 50 pounds, he should not do repetitive bending from the waist.

(AR-HART001053) (emphasis added). However, Dr. Barron then opined:

Based upon the fact that he has no objective findings on his lumbar spine examination and the way in which he behaved during the two day surveillance, in my opinion he is capable of working in the necessary dental operative position without any limitations or restrictions. In my opinion, I believe that he is able to bend, rotate, and sustain the body in the necessary dental operative positions based upon his lack of objective findings on his physical examination as well as his behavior during the two day surveillance video.

(AR-HART001053-54) (emphasis added).

Defendant also hired University Disability Consortium (“UDC”) to conduct an IME. Dr. Milton Jay, a consulting neuropsychologist, conducted a records review but did not directly examine Dr. Frerichs. (AR-HART001109.) Although Dr. Jay attempted to contact Dr. Berger, he was unable to reach him. (AR-HART00110910.) In the report of his record review, Dr. Jay discussed Dr. Misukanis’ 2009 neuropsychological re-examination (AR-HART001113) and Dr. McPherson’s 2009 neuropsychological IME. (AR-HART001111-12.) He took issue with Dr. Misukanis’ methodology, which he believed undermined the accuracy of Dr. Misukanis’ 2009 test results. (AR-HART001113-14.) Dr. Jay concluded that there was not “adequate evidence that [Dr. Frerichs] had mood disorder or personality dysfunction of a severity and scope sufficient to remove and preclude the option of returning to any gainful employment.” (AR-HART001115.) Similarly, Dr. Jay found that while Plaintiff had complaints of depression, the “depressive severity appeared to be mild and not sufficiently severe to threaten any gainful employment.” (Id.)

Hartford issued a denial of Dr. Frerichs’ appeal on November 9, 2009. (AR-HART000002-12.) In reaching its conclusion, Hartford stated that “the medical data and lack of objective findings fails [sic] to substantiate the severity of your claimed symptoms and restrictions which seem mostly, if not entirely, based on your self-report which given the totality of the evidence does not appear completely accurate.” (AR-HART000010.) Hartford further noted that the opinions of several doctors concerning Plaintiffs capability of performing operative dentistry contradicted Ms. Ogren’s opinion:

While Ms. Ogren maintains her opinion that you would be incapable of performing dental operative procedures due to your back pain complaints, multiple physicians, including Dr. Pinto, Dr. Bauer and Dr. Barron have concluded you would be capable of performing the duties of your occupation as a Dentist.

{Id.)

In its denial of Plaintiffs appeal, Hartford also discounted Plaintiffs claimed cognitive and/or psychological impairment, pointing to Dr. Frerichs’ lengthy appeal letter: “Your assertion appears to be that you have a cognitive and/or psychological impairment which affects your ability to concentrate or sustain employment, yet you drafted a 22-page letter of appeal complete with footnotes, references and a bibliography that categorically addresses every aspect of the rationale used to terminate your claim.” (AR-HART000007.) Hartford also discounted Dr. Berger’s opinions: “... [I]t appears that [Dr. Berger] is simply stating your symptoms as you have reported to him as opposed to relying on any specific medical testing or examination findings which, upon review of the majority of the medical records and reports contained in the claim file, has typically been the case with respect to your symptoms.” {Id.) Hartford also relied heavily on Dr. Jay’s opinion that both Dr. Misukanis and Dr. McPherson “utilized the MMPI-2 and noted extremely high symptom reporting that raised some threat to validity and required significant caution in interpretation because [Dr. Frerichs’] symptom over-reporting seemed rather clear.” (AR-HART000008.)

Having issued the denial of Dr. Frerichs’ appeal, Hartford advised him that he could bring a civil action under section 502(a) of ERISA in order to review the decision. (AR-HART000011.) As noted previously, Plaintiff filed the instant action on August 4, 2010.

H. Essential Duties of a Dentist

As noted previously, the Policy defines an employee as “disabled” when he or she is “prevented from performing one or more of the Essential Duties of Your Occupation.” (AR-HART000918.) An “essential duty” is one that: “(1) is substantial, not incidental; (2) is fundamental or inherent to the occupation; and (8) can not [sic] be reasonably omitted or changed.” {Id.) ‘Tour Occupation” means “your occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job you are performing for a specific employer or at a specific location.” (AR-HART000921.)

To determine the “essential duties of a dentist” in his application for long-term disability benefits, Plaintiffs employer, Park Dental Chaska, completed a section of the application form describing the physical aspects of Plaintiffs job. (AR-HART000707.) Park Dental reported that Plaintiffs activities included “pushing” in the form of packing filling material/removing teeth, using other instruments; “pulling” in the form of removing teeth and filling material from teeth; “lifting” dental equipment, supplies, instruments and patients; and “carrying” patient dental records and supplies. {Id.) In addition, Park Dental indicated that the job could not be performed by alternating sitting and standing, nor could the job be modified to accommodate the disability either temporarily or permanently. {Id.)

In his April 2009 appeal of Hartford’s termination of his benefits, Plaintiff submitted a document entitled “Dictionary of Occupational Titles and Jobs” (“DOT”), from the Occupational Information Network (“0*Net”), which sets forth the abilities and work activities required in a given field. (AR-HART000274; HART000298311.) Among the “abilities” required of a dentist as highlighted by Plaintiff, are:

■ Extent Flexibility: The ability to bend, stretch, twist, or reach out with the body, arms and/or legs.

Trunk Strength: The ability to use one’s abdominal and lower back muscles to support part of the body repeatedly or continuously over time without “giving out” or fatiguing.

Static Strength: The ability to exert maximum muscle force to lift, push, pull, or carry objects.

Dynamic Flexibility: The ability to quickly and repeatedly bend, stretch, twist, or reach out with the body, arms and/or legs.

(AR-HART000302-04.) The DOT also defines “work activities” of dentists to include the following:

Making Decisions and Solving Problems:

Combining, evaluating, and reasoning with information and data to make decisions and solve problems. The processes involve making decisions about the relative importance of information and choosing the best solution.

(AR-HART000304.) Plaintiff also submitted the DOT applicable to surgeons, which lists the following “abilities,” among others, required of a surgeon:

Arm Hand Steadiness: The ability to keep the hand and arm steady while making an arm movement or while holding the arm and hand in one position. Trunk Strength: The ability to use one’s abdominal and lower back muscles to support part of the body repeatedly and continuously over time without “giving out” or fatiguing.”

Dynamic Strength: The ability to exert muscle force repeatedly or continuously over time. This involves muscular endurance and resistance to muscle fatigue.

Extent Flexibility: The ability to bend, stretch, twist, or reach out with the body, arms and/or legs.

Dynamic Flexibility: The ability to quickly and repeatedly bend, stretch, twist or reach out with the body, arms and/or legs.

(AR-HART000316-18.)

In considering Plaintiffs appeal of the termination of benefits, on October 6, 2009, Hartford contacted Rehabilitation and ReEmployment, Inc. to conduct a labor market survey to “obtain information concerning the physical demands of the occupation of a Dentist in the Minneapolis-St. Paul, MN geographical area.” (AR-HART001018.) The research entity, which was charged with the task of contacting ten dentists in the Twin Cities, contacted three dentists in the Twin Cities and researched the American Dental Association along -with “various informational websites such as Yahoo and Wikipedia.” (Id,.). The researchers sought to determine the percentage of time a dentist performs operative procedures, the types and average length of each exam, and how a dentist’s day is scheduled in regards to appointments. (Id.) The results of the survey showed that dentists typically spend 75% of their time performing restorative procedures such as examinations of the teeth and gums, root canals, cavity fillings, tooth shaping for crowns, crown fitting and placement, bridge and denture assessment and follow-up exams. (AR-HART001019.) No procedure took longer than an hour to perform. (Id.)

II. DISCUSSION

A. Standard for Summary Judgment

Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that the material facts in the case are undisputed. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Whisenhunt v. S.W. Bell Tel., 573 F.3d 565, 568 (8th Cir.2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir.2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Davenport v. Univ. of Ark. Bd. of Trustees, 553 F.3d 1110, 1113 (8th Cir.2009) (citing Anderson, 477 U.S. at 247-49, 106 S.Ct. 2505).

B. Standard of Review for Claims Under §§ 502(a)(1)(B) and 502(a)(3)

ERISA § 502(a)(1)(B) provides that “a participant or beneficiary” may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). An administrator’s denial of benefits under an ERISA plan is “reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When a policy provides the plan administrator with discretionary authority to determine eligibility for benefits, as is the case here, an abuse of discretion standard generally applies. Id.

Dr. Frerichs argues that this Court should apply a less deferential “sliding scale” standard of review when evaluating the plan administrator’s decision, relying on Payzant v. UNUM Life Ins. Co. of Am., 402 F.Supp.2d 1053, 1060 (D.Minn.2005) (applying the test in Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir.1998), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008)). Hartford, however, argues that a deferential abuse of discretion standard of review applies. Under Woo, to obtain a less deferential standard, a plaintiff is required to “present material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty to [him].” Woo, 144 F.3d at 1160. Plaintiff argues that Hartford’s decision upholding the termination his disability benefits was founded “upon a compendium of procedural irregularities reflecting such a conflict of interest....” (Pl’s Mem. Supp. Mot. Summ. J. at 34.)

Following the Supreme Court’s Glenn decision, case law on the applicable standard of review in ERISA actions in this Circuit is still evolving. Post-Glenn, a conflict of interest no longer triggers application of the sliding-scale approach, but instead “is simply one of several factors considered under the abuse of discretion standard.” Wrenn v. Principal Life Ins. Co., 636 F.3d 921, 924, n. 6 (8th Cir.2011). In Wrenn, the Eighth Circuit noted the extent to which Glenn changed the standard of review as it relates to conflicts of interest, but the Eighth Circuit did not rule on whether the existence of a serious procedural irregularity likewise altered the standard of review:

After the Supreme Court’s decision in Glenn, the Woo sliding-scale approach is no longer triggered by a conflict of interest, because the Supreme Court clarified that a conflict is simply one of several factors considered under the abuse of discretion standard. The procedural irregularity component of the Woo sliding scale approach may, however, still apply in our circuit post -Glenn. See Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 582 (8th Cir.2008) (stating “[w]e continue to examine [a procedural irregularity] claim under Woo ”); but see Chronister v. Unum Life Ins. Co. of Am., 563 F.3d 773, 776 (8th Cir.2009) (analyzing a procedural irregularity, i.e., a plan administrator’s failure to follow its own claims-handling procedures, as one factor under Glenn’s abuse of discretion standard).

Id. Because the court concluded that the plan administrator in Wrenn had abused its discretion, it did not address the extent to which Glenn may have changed the procedural irregularity component of Woo’s sliding-scale approach. As in Wrenn, this Court finds it unnecessary to resolve this issue because even under the abuse of discretion standard, the Court concludes that Plaintiff is entitled to summary judgment.

C. Reasonableness

Under an abuse of discretion standard, the reviewing court “will uphold the [administrator’s] decision to deny benefits if it is reasonable.” Maune v. Int’l Bhd. of Elec. Workers, Local No. 1 Health & Welfare Fund, 83 F.3d 959, 962-63 (8th Cir.1996). ‘We measure reasonableness by whether substantial evidence exists to support the decision, meaning ‘more than a scintilla, but less than a preponderance.’ ” Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 583 (8th Cir.2008) (quoting Woo, 144 F.3d at 1162). It is well settled in ERISA cases that a reviewing court may not “substitute [its] own weighing of the evidence for that of the administrator,” Ferrari v. Teachers Ins. & Annuity Ass’n, 278 F.3d 801, 807 (8th Cir.2002), and a court “will not disturb a decision supported by a reasonable explanation even though a different reasonable interpretation could have been made.” Clapp v. Citibank, 262 F.3d 820, 828 (8th Cir.2001). Courts, however, must evaluate “the quantity and the quality of the evidence.” Id., (internal citation omitted).

In order to terminate Plaintiffs disability benefits, Hartford had to determine that Plaintiff was no longer “disabled” as defined by the Policy. As noted, the question is not whether Plaintiff is able to resume his former occupation or perform some of his former duties. The question is whether he is “prevented from performing one or more of the Essential Duties of [his] Occupation,” as that occupation is recognized in the general workplace. (AR-HART000918; HART000920.)

Defendant argues that it acted reasonably in terminating Plaintiffs disability benefits because substantial evidence establishes that Plaintiff is capable of performing the essential duties of dentistry. Specifically, Hartford points to the following in support of its argument: (1) substantial evidence supports Hartford’s interpretation of the essential duties of dentistry; (2) Hartford was justified in crediting the opinions of its physicians; (3) the surveillance video provides substantial evidence of Plaintiffs level of functionality; (4) Hartford is not bound by the conclusions of the Social Security Administration; and (5) changed circumstances justified Hartford’s decision to terminate Plaintiffs benefits. (Def's Opp’n Mem. at i-ii [Doc. No. 60].)

1. Physicians’ Opinions

a. Misstatements as to Physicians’ Opinions

As to Hartford’s contention that it was justified in crediting the opinions of its physicians, the Court disagrees. Hartford misstated the opinions of Plaintiffs treating physicians in its November 9, 2009 letter denying Plaintiffs appeal. In the denial of appeal letter, Hartford states, “While Ms. Ogren maintains her opinion that you would be incapable of performing dental operative procedures due to your back pain complaints, multiple physicians, including Dr. Pinto, Dr. Bauer and Dr. Barron have concluded you would be capable of performing the duties of your occupation as a Dentist.” (AR-HART0000I0.) As discussed below with respect to these physicians, this is a fundamental factual misstatement upon which Hartford based its decision. Similarly, in its denial of appeal letter, Hartford identifies Dr. Misukanis, Plaintiffs neuropsychologist, as failing to “find any indication of significant cognitive impairment,” noting “significant exaggeration of symptoms relating to your psychological reports.” (Id.) The record indicates otherwise, as the Court addresses below.

i. Dr. Pinto

In August 2007, Dr. Pinto recommended that Dr. Frerichs undergo a functional capacities assessment to establish his restrictions. (AR-HART000499.) On his own behalf, Dr. Frerichs arranged for an OTE with Jessica Ogren in October 2007. (AR-HART00328-29.) During the evaluation, Dr. Frerichs simulated a dental procedure on a patient, requiring him to sit and fully flex his spine, while rotating and laterally flexing to the right. (AR-HART00329.) Based on Dr. Frerichs’ “position tolerance” difficulties, she recommended that he find work on a full-time basis within his abilities, however, Ogren concluded that he was “unable to tolerate traditional dentistry at this time due to his inability to tolerate long durations of trunk flexion combined with lateral flexion/rotation as required when performing procedures on patients.” (Id.) Ms. Ogren suggested that Dr. Frerichs could search for dentistry jobs that only require exams and general preventive care only, or work in an administrative position. (Id.)

Dr. Pinto reviewed the October 2007 OTE (see AR-HART000463), and, on his behalf, his physician’s assistant indicated in March 2008 that the functional evaluation was “reasonable,” further noting, “obviously limiting his ability to perform general dentistry exams,” although not precluding Dr. Frerichs “from being gainfully employed in some other arena.” (AR-HART000409.) In March 2009, Dr. Pinto reviewed the results of a recent MRI, finding that Plaintiffs spinal degeneration had migrated, with disc degeneration, herniations, some facet arthritis and some foraminal stenosis. (AR-HART001325.) He noted, “Certainly the findings explain the patient’s symptoms.” (Id.) In April 2009, Dr. Pinto reviewed Plaintiffs most recent discograms, finding that they were “valid,” and that “[Dr. Frerichs] certainly has pathology that justifies the presence of the low back pain. Difficulty sitting is a very common complaint with patients with symptomatic lumbar disc derangement like Dr. Frerichs.” (AR-HART000367.)

Upon Dr. Pinto’s recommendation, Plaintiff underwent an FCE with Ms. Ogren in August 2009 to determine his ability to work in dentistry. (AR-HART001034.) Ms. Ogren found that “Mr. Frerichs would be unable to tolerate traditional dentistry at this time due to his inability to tolerate long durations of trunk flexion combined with lateral flexion/rotation as required when performing procedures on patients.” (Id.) She specifically found that Dr. Frerichs could not tolerate sitting “more than frequently and the demands of dentistry require constant sitting. He would be capable of performing general dental exams and other basic dentistry tasks that do not require prolonged bending with twisting (no procedures).” (Id.) Ms. Ogren recommended that Dr. Frerichs find work within his abilities, per his physician’s approval. (Id.)

On September 22, 2009, Dr. Pinto reviewed Plaintiffs August FCE, agreeing that it showed significant restrictions that interfered with Dr. Frerichs’ “ability to work at his regular job as a dentist (operative dentistry).” (CF001555, Ex. A to Johnson Aff.) He also acknowledged that the FCE indicated that Plaintiff was able to work with modified restrictions. (Id.) Dr. Pinto therefore completed a “Return to Work” form, indicating that Plaintiff could return to work as light duty only, “following the restrictions outlined in his FCE 08/04/09. Non operative dentistry. Short duration procedures only.” (CF001556, Ex. A to Johnson Aff.)

While Dr. Pinto indicates that Plaintiff may be capable of performing some limited, short procedures, he does not state, as Hartford contends, that Plaintiff is “capable of performing the duties of [his] occupation as a Dentist.” (AR-HART000010.) Instead, the record quoted above demonstrates that Dr. Pinto found that Plaintiffs ability to work as a dentist was limited to non-operative, short duration procedures.

In addition, in its April 7, 2009 letter terminating Plaintiffs benefits, Hartford describes a conversation between its IME record reviewer, Dr. Bauer, and Dr. Pinto. (AR-HART001236.) The paragraph addressing their discussion concludes, “Dr. Pinto did not have any clinical data to support your impairments.” (Id.) Whether the quote is accurate or not, it is belied by the record. While Dr. Pinto noted Plaintiffs improvement at times, his records also attest to the validity of Plaintiffs complaints, as borne out by the fact of multiple back surgeries and the results of his disco-grams and MRIs.

ii. Dr. Bauer

Again, Hartford contended in its November 9, 2009 denial of appeal letter that “multiple physicians, including Dr. Pinto, Dr. Bauer and Dr. Barron have concluded [Plaintiff] would be capable of performing the duties of [his] occupation as a Dentist.” (AR-HART000010.)

However, Hartford’s IME record review physician, Dr. David Bauer, an orthopedic surgeon, did not reach such a clear-cut conclusion in his March 2009 report. While Dr. Bauer concluded that Plaintiff was able to work with certain restrictions, he adopted Ms. Ogren’s October 2007 OTE conclusions, as well as Dr. Pinto’s endorsement of the OTE conclusions, stating that “[tjhere is no reason to dispute the finding that ‘[Dr. Frerichs] would be unable to tolerate traditional dentistry .... He would be capable of performing general dentistry exams and other basic dentistry tasks that do not require prolonged bending with twisting.” (AR-HART000989) (quoting 10/09/07 OTE, AR-HART00329) (emphasis added).

In its April 7, 2009 letter terminating Plaintiffs benefits, Hartford also cited to Dr. Bauer’s conclusions, stating that Dr. Bauer found that Plaintiff was capable of performing the “Essential Duties of a Dentist.” (AR-HART001236.) As noted above, Dr. Bauer adopted Ms. Ogren’s opinion that Dr. Frerichs was capable of performing dentistry tasks that do not require prolonged bending with twisting. The addendum to Dr. Bauer’s report specifies that, in his opinion, while Plaintiff is not capable of constant repetitive trunk rotation in a sitting position, he is capable of frequent repetitive trunk rotation in both a sitting and standing position. (AR-HART000990.)

While it is unclear to the Court whether Dr. Bauer was subsequently provided a copy of Plaintiffs August 2009 FCE and September 2009 records with Dr. Pinto, in connection with the appeal of Plaintiffs termination of benefits, such records were certainly not before Dr. Bauer when he conducted his IME record review in March 2009.

iii. Dr. Barron

The record also does not support Hartford’s blanket statement that Dr. Barron found Plaintiff capable of performing the duties of a dentist. (AR-HART000010.) In his August 17, 2009 IME conducted on Hartford’s behalf, Dr. Barron concluded that Dr. Frerichs required permanent restrictions. (AR-HART001053.) Yet he then contradicted himself, stating that Plaintiff was capable of working in the “necessary dental operative position without any limitations or restrictions.” (AR-HART001053-54.) In addition, neither Dr. Barron’s original report of August 17, 2009 (AR-HART001045-54), nor his supplemental report of August 25, 2009 (AR-HART001056-57) indicate that he reviewed Plaintiffs August 2009 FCE, and both of Dr. Barron’s reports pre-date records of Plaintiffs September 2009 treatment with Dr. Pinto.

iv. Dr. Misukanis

While Hartford contends that Dr. Misukanis found no indication of significant cognitive impairment, but found an exaggeration of symptoms, medical evidence from Dr. Misukanis contradicts that assertion. Following up on Dr. Berger’s April 2008 assessment that Dr. Frerichs was not able to be employed (AR-HART000391), Dr. Frerichs met with Dr. Misukanis in December 2008. (AR-HART000334-35.) While Dr. Misukanis reported mild improvement, which was “cause for encouragement,” he opined that Dr. Frerichs “continues to demonstrate minor cognitive difficulties and a significant psychological disturbance which, in my opinion, would preclude a return to work as a dentist any time in the near future.” (Id.)

With respect to all of these physicians’ opinions, the Court finds that Hartford either ignored the record evidence, or misstated it in its decision to terminate Plaintiffs long-term disability benefits and its denial of Plaintiffs appeal. The Supreme Court has recognized that treating physicians are not automatically entitled to special weight in disability determinations under ERISA:

Plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician. But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Here, Hartford has gone beyond analyzing and discrediting Plaintiffs evidence — it has misconstrued or misstated the opinion of one of Dr. Frerichs’ treating physicians, and has further misconstrued or misstated the opinions of two of its own physicians.

While Hartford characterizes this as a mere “substantive disagreement” with the merits of Hartford’s termination decision that does not rise to the level of a procedural irregularity (Defs Opp’n Mem. at 16 [Doc. No. 60]), the Court disagrees. Case law regarding procedural irregularity, particularly the case law cited by Hartford in its Opposition Memorandum at 17 [Doc. No. 60], is not directly applicable to the issue before the Court. It is not the case that Hartford failed to follow its own internal policies or procedures in