Doe v. Unum Life Insurance Co. of America (116 F. Supp. 3d 221, 2015)

MEMORANDUM OPINION

LEWIS A KAPLAN, District Judge.

Plaintiff alleges that he wrongfully was denied long-term disability benefits by Unum Life Insurance Company of America (“Unum”) in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. The matter now is before the Court following a bench trial on a stipulated record.

I. Background

Plaintiff began working in June 2006 as a partner in the financial restructuring group of a major law firm. As a benefit of employment, plaintiff was covered under the terms of the firm’s long-term disability plan (the “Plan”) issued by Unum.

In early 2009, plaintiff sought treatment from Dr. Eric Hollander for mild anxiety related to his firm’s restructuring practice and the departure of his chief client. Plaintiff attended therapy sessions for several months and by August 2009 believed that his anxiety issues were sufficiently resolved, In October 2009, however, plaintiffs wife was diagnosed with breast cancer and they were facing serious marital problems. Plaintiff took a leave of absence from the firm to assist in his wife’s treatment and to prevent, in his words, “the possible demise of my marriage.”

Plaintiff returned to Dr. Hollander in February 2010. This time, Dr. Hollander noted potentially debilitating psychological symptoms and immediately commenced pharmacological treatment. Plaintiff returned to work in March 2010 while still under Dr. Hollander’s care. A few months later, however, plaintiff was informed that he was not producing significant billable hours and that he should consider alternate employment. Plaintiff acknowledged his difficulties, informed the firm of his medical problems, and stated that he would undergo neuropsychological testing and resign if the results demonstrated that he was unable to work.

After undergoing psychological and neu-ropsychological testing, Dr. Hollander diagnosed plaintiff with major depression, obsessive compulsive disorder (OCD), attention deficit hyperactive disorder (ADHD), obsessive compulsive personality disorder (OCPD), and Asperberger’s syndrome. Dr. Hollander advised plaintiff to discontinue work on October 28, 2010, and plaintiff has not worked in any capacity since that date.

On December 3, 2010, Plaintiff submitted a claim for long-term disability benefits under the Plan. Unum denied the claim on November 17, 2011. Unum twice denied plaintiffs appeal of that determination, and this litigation followed.

II. Standard of Review

A beneficiary of an ERISA plan may bring a civil action “to recover benefits due to him under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan.” While ERISA does not define the standard of review in such cases, the Supreme Court has held that review of a decision to deny ERISA benefits presumptively is de novo. Moreover, the parties have stipulated that de novo review applies here. Accordingly, “[u]pon de novo review, a district court may render a determination on a claim without deferring to an administrator’s evaluation of the evidence.” In short, this Court acts as the finder of fact.

The Second Circuit repeatedly has held that “as a matter of general insurance law, the insured has the burden of proving that a benefit is covered.” Plaintiff therefore must prove by a preponderance of the evidence that he was “disabled” as defined by the Plan and therefore entitled to benefits.

III. Facts

1. The Plan

The Plan defines disability as follows:

“You are disabled when Unum determines that:

— you are limited from performing 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 the same sickness or injury.”

“Regular occupation” is defined as “your specialty in the practice of law which you are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.” Additionally, “[t]he lifetime cumulative maximum benefit period for all disabilities due to mental illness and disabilities based primarily on self-reported symptoms is 24 months.”

2. Duties of Plaintiff’s Occupation

The parties generally agree as to plaintiffs duties as a litigation partner with a specialty in bankruptcy law. Unum’s internal vocational rehabilitation consultant, Laura Feeney, identified, among other things, the following material and substantial duties of plaintiffs occupation: Works directly with and represents plaintiffs or defendants to bring or pursue a lawsuit, gathers evidence, conducts research, interviews clients and witnesses, prepares legal briefs, represents client in court and before quasi-judicial administrative agencies of government, generates business for firm, and supervises associates and staff. Ms. Feeney noted also that plaintiff’s job demanded frequent use of short-term and long-term memory, sustained concentration and persistence, interaction with public and peers, frequent adaptations to change, and making judgments and decisions.

Plaintiff underwent also a vocational assessment with Kathryn Reid, the conclusions of which were consistent with the aforementioned duties and responsibilities.

S. Plaintiff’s Medical Records A. Dr. Hollander

On January 28, 2009, plaintiff first presented to Eric M. Hollander, M.D., a board-certified psychiatrist and director of the Autism and Obsessive-Compulsive Spectrum Program at Albert Einstein College of Medicine and Montefiore Medical Center. Dr. Hollander treated plaintiff for “mild anxiety related to his firm’s restructuring practice and the departure of his chief client.” Treatment consisted of therapy sessions once or twice a month between January and May 2009 and one additional time in August 2009. No medication was necessary and Dr. Hollander concluded that talk therapy sufficiently resolved plaintiffs concerns.

On February 23, 2010 — more than six months after his last visit — plaintiff returned to Dr. Hollander during the leave of absence he undertook as a result of his wife’s medical condition. Dr. Hollander observed ■ “potentially debilitating conditions, including depression, obsessive compulsive disorder, (OCD), attention deficit hyperactive disorder (ADHD), and obsessive compulsive personality disorder (OCPD).” Dr. Hollander immediately prescribed Lexapro, a selective serotonin reuptake inhibitor, for the treatment of depression.

On September 16, 2010, Dr. Hollander referred plaintiff to Dr. Concetta DeCaria for neuropsychological testing. Dr. Hollander concluded that the testing results confirmed “severe depression, OCD, ADHD, and OCPD and indicated] that [plaintiff] also has substantial and-blinically meaningful cognitive deficits in executive functioning, processing speed, memory, shifting, and features of an autism spectrum disorder.” Dr. Hollander then prescribed Vyvanse, a central nervous system stimulant which is indicated for the treatment of ADHD; treatment through neuro-cognitive support, behavior therapy, and Lexapro continued as .well.

On October 28, 2010, Dr. Hollander advised plaintiff to discontinue work because, in his opinion, plaintiff was unable to work full-time in his prior occupation. He reported that plaintiff spent “hours ruminating, list-making, researching, seeking validation on a specific topic” and that his “compulsion is enough to exhaust him (he often sleeps in excess of 12 hours per day).” Dr. Hollander concluded as well that plaintiff could not properly regulate his- behavior, remain attentive, or perform executive functions, resulting in an inability to work as a law firm partner,'“which requires all of these abilities for long hours and under high stress.” Dr. Hollander opined that although the “present severe and debilitating symptoms of these conditions did not emerge until 2010,” plaintiffs conditions likely have been lifelong but remained latent.

As of- July 2012, Dr. Hollander reported that plaintiff “ha[d] m'ade some progress through psychotherapy in accepting and understanding his conditions,” but had become increasingly depressed. In fact/ Dr. Hollander noted that, “[a]t times[,] [plaintiffs] lack of energy and lack of motivation rendered] him unable to perform even basic self-care such that he require[d] supervision by his wife.”

B. Dr. DeCaria

As mentioned above, Dr. Hollander referred plaintiff to Concetta M. DeCaria, Ph.D. — a clinical neuropsychologist and assistant clinical professor of psychology at Mount Sinai School of Medicine — for a psychological and neuropsychological evaluation. Dr. DeCaria’s evaluation consisted of a series of behavioral questionnaires, cognitive tests, and interviews with plaintiff and his wife. Dr. DeCaria concluded that plaintiff exhibited superior cognitive function and-scholastic abilities, but a slow processing speed, compromised rule learning and inhibition of impulses, and cognitive flexibility difficulties, consistent with ADHD. Moreover, plaintiff exhibited symptoms of a personality disorder, in conjunction with prominent anger, anxiety, depressed mood, negative self-image, and unproductive rumination. Dr. DeCaria noted that a malingering -probability assessment revealed a low likelihood of exaggerated symptom- endorsement or false claims of symptomatic distress. In the last analysis, Dr. DeCaria concluded that plaintiffs symptoms were consistent with OCD, ADHD, depression, and OCPD, and that these symptoms worsened significantly due to recent life stressors, such as plaintiffs wife’s medical problems. Dr. DeCaria agreed with Dr. Hollander that plaintiff could not practice law because he had a “limited capacity for working the long hours required, managing high levels of stress, enduring prolonged periods of focus and concentration, generating substantial preparatory work and billing, engaging in very short deadlines, [and] producing prompt action,” which prevent plaintiff from generating business efforts and successes.

Jt. Unum’s Reviewers

Plaintiffs claim initially was denied on the basis of a personal interview with plaintiff and file reviews by three of Unum’s internal medical consultants.

A.Mr. Lippel

On February 16, 2011, Marc Lippel conducted a “field referral,” or personal interview, to clarify certain information regarding plaintiffs medical treatment and employment. Plaintiff stated that he suffered from “excessive sleeping (13-14 hours per day ...), frequent obsessive rituals (lists, moving/shifting furniture, making purchase decisions ...), depression and anxiety.” Plaintiff showed Mr. Lip-pel some of his “ritual lists” and stated that he “would usually erase the list and redo a similar list. His compulsive rituals are ongoing throughout the day with his thought process racing.” Mr. Lippel observed that plaintiff would “ramble on and stray off topic,” but that he appeared “alert, energetic, upbeat, oriented, articulate, and intelligent.” Additionally, Mr. Lippel stated that plaintiff did not exhibit “signs of depression or anxiety,” a conclusion that appears to have been based on the fact that plaintiff did not become emotional or tearful during the interview. Finally, Mr. Lippel stated that he would “defer to medical to determine the severity of the claimant’s impairments and clarify if the claimant has any barriers that preclude him from working in his occupation.”

B. Dr. Black

F. William Black, Ph.D., a medical consultant for Unum specializing in neuropsy-chology, reviewed Dr. DeCaria’s neuropsy-chological evaluation and Dr. Hollander’s psychiatric treatment report. Dr. Black stated that the neuropsychological evaluation was “reasonably appropriate to the presenting problems (ADHD and personality issues)” and the “tests were appropriately administered and scored.” Dr. Black concluded that “[t]he personality data is not inconsistent with the diagnoses opined by the [attending] psychiatrist and neuropsychologist” and those tests “suggest a [behavioral] condition with rather pervasive distress.” However, Dr. Black opined that the self-reports of emotional symptoms were “over-endorsed,” such that he was unable to define the nature and degree of a behavioral condition. He therefore concluded that the test results did not warrant a conclusion that plaintiff was “not capable of performing executive functions.”

C. Dr. Kletti

Nicholas B. Kletti, M.D., a medical consultant for Unum and board certified in psychiatry, also reviewed plaintiffs file. Dr. Kletti noted that Dr. Hollander “did not provide[] progress notes for review” and that there was “no documentation as to specific functional details of occupational or non-occupational performance problems.” Additionally, Dr. Kletti opined that plaintiffs reports of his symptoms appeared inconsistent with his success as a high-earning attorney, which were “unnoticed by employer other than their' concerns as to poor productivity at work.” Dr. Kletti concluded that there was not sufficient file documentation to support psychiatric impairment.

D. Dr. Caruso

Keith A. Caruso, M.D., a medical consultant for Unum and board certified in psychiatry, concluded that “these facts are consistent with psychiatric symptoms”, but the records were “not sufficiently documented as a source of a loss of ability to function in the claimant’s occupational capacity.” Dr. Caruso claimed that Dr. Hollander did “not provide[ ] standard, accepted medical evidence to support a psy-chiatrically impairing condition that would preclude work.” Dr. Caruso opined that bi-weekly psychotherapy and treatment with Lexapro and Vyvanse “suggests a relatively mild condition.” Finally, Dr. Caruso noted that most of the mental illnesses with which plaintiff recently received diagnoses would be expected to arise in adolescence and it was difficult to understand why plaintiffs’ symptoms would not have been apparent earlier.

5. Administrative Appeal

A. 2012 Neuropsychological Evaluation

In 2012, plaintiff underwent a second neuropsychological evaluation, during his administrative appeal, with George J. Carnevale, Ph.D., a clinical neuropsychologist. Dr. Carnevale observed that plaintiff “has a disordered communication style and it was difficult[ ] at times to follow his train of thought.” Plaintiffs symptoms indicated moderate to severe depression, including reported “indecisiveness, loss of interest in previously pleasurable activities, decreased energy, changes in sleep pattern, irritability, concentration difficulty, and fatigue.” Dr. Carnevale observed also that plaintiff suffered from “an overcompensating personality-style with obsessive compulsive features,” OCPD and ADHD. Results of the “gold standard test of possible malingering” presented no evidence of malingering or exaggeration. Moreover, Dr. Carnevale endorsed Dr. De-Caria’s neuropsychological data as an accurate reflection of plaintiffs cognitive and psychological functioning. Dr. Carnevale concluded that plaintiff would be unable to perform complex cognitive tasks requiring sustained mental control, divided attention, flexible problem-solving, and decision-making, therefore precluding plaintiff from performing his occupational duties.

B. . Unum’s Reviewers

In' the course of plaintiffs administrative appeal, Unum sent plaintiffs file to three additional reviewers.

i. Dr. Zimmerman

Jana Zimmerman, Ph.D., an Unum medical consultant specializing in neuropsy-chology, noted that several of the neurop-sychological “scores related to feigning of emotional distress and psychopathology were within normal limits.” Dr. Zimmerman claimed, however,; that Dr. DeCaria’s MMPI-2 validity scores “indicated exaggeration of psychopathology.”

Dr. Zimmerman noted also that plaintiffs clinical- profile appeared to be “floridly symptomatic,” but that his mental status was normal in an annual medical exam five days later. That observation appears