Pike v. Hartford Life & Accident Ins. Co. (368 F. Supp. 3d 1018, 2019)

Citations

368 F. Supp. 3d 1018

Full opinion text

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

The above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. On January 31, 2019, the Magistrate Judge issued a Report and Recommendation, finding for Plaintiff under recommended findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Dkt.

# 33. Defendant Hartford Life and Accident Insurance Company ("Defendant") filed objections to the Report and Recommendation. Plaintiff Gina Pike ("Plaintiff") filed a response to the objections. Pursuant to the Magistrate Judge's March 1, 2019 Order, Defendant filed a reply and Plaintiff filed a surreply. The Court conducts a de novo review of the Magistrate Judge's recommended findings and conclusions.

BACKGROUND

This Employee Retirement Income Security Act ("ERISA") action concerns the termination of Plaintiff's long term disability ("LTD") benefits pursuant to 29 U.S.C. § 1132 (a)(1)(B). Defendant issued an insurance policy, identified as Hartford policy number GLT-675193 ("the Policy"), effective January 1, 2005, describing benefits effective July 1, 2016 to Plaintiff's employer, Gambro, Inc. Plaintiff is insured for LTD benefits under the Policy. The Policy does not grant discretionary authority to the Plan Administrator or the Claims Administrator.

Defendant paid Plaintiff's claim for LTD benefits from April 24, 2008 through December 14, 2016, the period of time when Defendant determined Plaintiff met the definition of "disability" in the Policy. However, after later determining Plaintiff was unable to prove she continued to be "disabled" under the Policy, Defendant discontinued LTD benefits effective December 15, 2016. The issue is whether Plaintiff is entitled to receive LTD benefits after December 14, 2016 under the Policy. Plaintiff seeks the benefits she has been denied plus pre-judgment and post-judgment interest, recovery of attorney's fees and costs, clarification of her right to receive future benefits under the policy, and any other appropriate equitable relief. Dkt. # 1 at 3.

The parties stipulated a de novo review applies in this case. See Dkt. # 16.

The parties then filed cross motions for judgment on the record as well as the administrative record compiled by Defendant during the administration of Plaintiff's claim (the "Agreed Administrative Record" or "AR").

FEDERAL RULE OF CIVIL PROCEDURE 52

Both parties elected to proceed pursuant to Federal Rule of Civil Procedure 52, which governs actions "tried on the facts without a jury." Rule 52 requires the Court "find the facts specifically and state its conclusions of law separately." FED. R. CIV. P. 52(a).

In the Fifth Circuit, "Rule 52(a) does not require that the district court set out [its] findings on all factual questions that arise in a case." Koenig v. Aetna Life Ins. Co. , No. 4:13-CV-0359, 2015 WL 6554347, at *3 (S.D. Tex. Oct. 29, 2015), aff'd sub nom. N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life Ins. Co. , 898 F.3d 461 (5th Cir. 2018) (quoting Valley v. Rapides Parish Sch. Bd. , 118 F.3d 1047, 1054 (5th Cir.1997) (citing Golf City, Inc. v. Wilson Sporting Goods Co., Inc. , 555 F.2d 426, 433 (5th Cir.1977) ) ). Nor does it demand "punctilious detail [or] slavish tracing of the claims issue by issue and witness by witness." Koenig , 2015 WL 6554347, at *3 (citations omitted). Rather, a court's "[f]indings [are sufficient to] satisfy Rule 52 if they afford the reviewing court a clear understanding of the factual basis for the trial court's decision." Id. (citations omitted).

According to courts outside the Fifth Circuit, using Rule 52 is effective in the ERISA context because courts may resolve factual disputes and issue legal findings without the parties resorting to cross motions for summary judgment. Tran v. Minnesota Life Ins. Co. , No. 17-CV-450, 2018 WL 1156326, at *5 (N.D. Ill. Mar. 5, 2018) ; see also Kearney , 175 F.3d at 1095 (noting "the district court may try the case on the record that the administrator had before it."). In a trial on the administrative record, the district judge reviews the evidence to determine "whether [the plaintiff] is disabled within the terms of the policy." Kearney , 175 F.3d at 1095. Further, "in a trial on the record, but not on summary judgment, the judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true." Id.

REPORT AND RECOMMENDATION

After hearing oral argument on the parties' cross motions, the Magistrate Judge issued a 60-page Report and Recommendation ("R & R") on January 31, 2019, finding for Plaintiff. Dkt. # 33. The Magistrate Judge's recommended findings and conclusions are based upon the Agreed Administrative Record. Plaintiff's lengthy medical history, as well as the facts behind Defendant's termination of LTD benefits, are set forth in detail in the Recommended Findings of Fact section of the R & R and are not duplicated herein. Id. at 4-32.

The Magistrate Judge stated Plaintiff, to obtain LTD benefits beyond December 14, 2016, must show by a preponderance of the evidence that she cannot perform one or more essential duties of any occupation for which she is qualified. Id. at 36. Based on the Agreed Administrative Record, the Magistrate Judge concluded Plaintiff had shown she could not perform all the essential duties of any occupation for which she is reasonably qualified. Id. at 37. The Magistrate Judge summarized the medical evidence she previously set forth in detail in the Recommended Findings of Fact section of the R & R. Dkt. # 33 at 37-39. Specifically, the Magistrate Judge stated as follows:

Plaintiff has suffered from severe back pain since at least 2002, when a diagnostic lumbar discogram revealed severe pathology at her L4-5, L5-S1 intervertebral levels as well as less severe degeneration at her L3-4 level. AR 507-08. Plaintiff underwent surgery in 2002 on her L4-S1 levels and improved for a time, but she began to deteriorate in 2004. AR 521, 533-34. By 2007, Plaintiff could not sit in a chair, lie in a bed, or stand for any significant length of time. AR 521.

Plaintiff pursued aggressive surgical treatment with neurosurgeon, Robert Martin, M.D. On March 25, 2008, Dr. Martin performed an extreme interbody fusion at L3-4. AR 787-89. In July 2008, Dr. Martin stated Plaintiff could sit for no more than two hours in a day, stand for no more than two hours per day, and walk for no more than two hours per day. AR 1925. Dr. Martin further stated these limitations are permanent. AR 1925.

Still complaining of pain, Plaintiff next sought treatment with Ralph F. Rashbaum, M.D. Dr. Rashbaum diagnosed Plaintiff with "failed back surgery syndrome" and surgically implanted a spinal cord stimulator. AR 2237. The spinal cord stimulator eventually caused an increase in Plaintiff's symptoms, and Dr. Rashbaum surgically removed it in December 2012. AR 1802-03. Dr. Rashbaum recommended Plaintiff start long-term use of class II narcotics. In a "long hard conversation," Dr. Rashbaum advised Plaintiff as follows:

[S]he probably does need to try a class II medication.... I have told her in the past that she will more than likely always be on some form of pain medication, she wanted to avoid class II if possible. I think we have exhausted every other procedure and modality to try to prevent that. I am referring her now to Dr. Bernstein to see if he can find the right medication mix to help reduce her pain so that she can be more active. She wants to do so much, but is very limited physically. I have also provided her with a prescription for handicap parking placard that she can use. I think she pushes herself so far that she has been in such extreme pain that she is bedridden for 2 to 3 days.

AR 2239.

Plaintiff's care then transitioned to pain management physician Sidney Bernstein, M.D., at the Texas Back Institute. Dr. Bernstein stated Plaintiff could sit, stand, and walk for fifteen to twenty minutes at a time and could not do any of the postures for more than a total of four hours per day. AR 1905.

On February 20, 2011, Hartford management reviewed Plaintiff's claim and noted:

[Plaintiff] continues with chronic lower back and leg pain. Dr. Bernstein is managing her medications and making adjustment to help better control [her] pain. [She] is also having side effects from the meds and her weight is also of concern.... Although Dr. Bernstein notes that [Plaintiff] has the capacity to lift up to 10 lbs. frequently and up to 20 lbs. occasionally and able to frequently fingering and handling, due to chronic intractable pain she is limited to 15-20 minutes sit/stand/walk for no more than 4 hrs/day. Therefore, it is reasonable that [Plaintiff] would be unable to sustain fulltime any occ[upation] activities.

AR 926.

When Dr. Bernstein retired in December 2011, Plaintiff updated Hartford with records from her current pain management physician, Noor Gajraj, M.D. Dr. Gajraj is Board Certified in Pain Management and has treated Plaintiff for more than five years. AR 14. In the most recent Attending Physician's Statement of Disability ("APS") No. 10, dated July 10, 2015, Dr. Gajraj listed Plaintiff's primary diagnosis as lumbar degenerative disc disease and her secondary diagnosis as lumbar radiculopathy. AR 1752-53 (duplicate AR 1783-84). He listed her medications as Dilaudid and Fentanyl and her current subjective symptoms as rightsided low back pain and right leg pain and tenderness. AR 1752. He opined Plaintiff could walk, stand, and sit for fifteen to twenty minutes at a time and for no longer than four hours per day. AR 1753.

The Magistrate Judge considered the opinions of Plaintiff's treating physicians and the supporting evidence of their opinions, such as the surveillance and objective medical records and Defendant's actions over the course of several years. The Magistrate Judge found the treating physicians' opinions reliable and probative, concluding as follows:

Based on the Agreed Administrative Record, Plaintiff has demonstrated by a preponderance of the evidence that she cannot perform the essential duties, which includes the ability to work a full work week, of any occupation for which she qualifies. Plaintiff has shown by a preponderance of the evidence that her disability persisted beyond December 14, 2016.

Dkt. # 33 at 55.

In her de novo review, the Magistrate Judge also considered the evidence relied upon by Defendant in justifying its termination of benefits and found no evidence of improvement in Plaintiff's condition since Defendant previously found Plaintiff was unable to sustain full time work in any occupation. Id. The Magistrate Judge concluded it was improper for Defendant to cease Plaintiff's LTD benefits, and Plaintiff is entitled to the reinstatement of her LTD benefits beginning December 15, 2016. Id. Thus, the Magistrate Judge recommended Plaintiff's Motion for Judgment on the Record be granted and Defendant's Cross-Motion for Judgment on the Record be denied.

The Magistrate Judge also considered whether pre-judgment interest, costs, and attorney's fees should be awarded as requested by Plaintiff. The Magistrate Judge found Plaintiff is entitled to receive LTD benefits from December 15, 2016, and to recover pre-judgment interest on those unpaid benefits. Id. at 56. She also found the circumstances support an award to Plaintiff for attorney's fees and costs, in addition to the benefits amount owed to her under the Policy. Id. at 59.

However, rather than specifically recommend an award of fees and costs, the Magistrate Judge recommended that Plaintiff be directed to file, within twenty days from the date of any Order adopting the R & R, a motion for pre-judgment interest, costs, and attorney's fees. Id. The R & R specifies that any such motion must be legally and factually supported and that Defendant shall file a response.

OBJECTIONS

Defendant filed three main objections to the Report and Recommendation ("R & R"), the first and second of which the Court considers first in its de novo review of the R & R. In the first main objection, Defendant asserts the R & R fails to follow appropriate ERISA law and the Policy language, which leads to erroneous findings of fact and legal conclusions. This objection has six specific sub-arguments, which the Court lists herein in the order it will consider them: (1) the R & R errs in misstating the Policy's definition of "disability;" (2) the R & R improperly relies on outdated records for its conclusion on present disability; (3) the R & R errs in applying the "treating physician rule" and giving deference to Plaintiff's treating physicians over independent reviewing physicians; (4) the R & R wrongly relies on Plaintiff's subjective complaints as opposed to objective evidence; (5) the R & R erroneously uses Plaintiff's attorney's arguments in briefing as findings; and (6) the R & R "cherry-picks" from the AR instead of reconciling the evidence as the plan administrator must do in its benefits decision. Defendant also argues the R & R improperly shifts the burden to Defendant to show evidence of improvement.

In its related second main objection, Defendant asserts the R & R relies on law outside the Fifth Circuit that is contrary to the way the Fifth Circuit will decide the issues. Specifically, Defendant argues the alleged "factual and legal errors lead the R & R to look to a district court case within the Ninth Circuit that does not represent how the Fifth Circuit views these issues." Dkt. # 37 at 2. According to Defendant, the Magistrate Judge does not address the case law cited by Defendant. Dkt. # 37 at 20. Finally, in its third main objection, Defendant asserts the R & R purports to award Plaintiff attorney's fees without any motion practice and based on erroneous factual and legal conclusions.

In her response, Plaintiff emphasizes the standard in this case is de novo review as opposed to abuse of discretion. Plaintiff argues Defendant's objections revisit a number of contested fact issues raised in the underlying briefing on which the Magistrate Judge found Plaintiff's evidence to be more compelling. Rather than "cherry pick" the Agreed Administrative Record, Plaintiff asserts the Magistrate Judge explained in detail why she found some evidence more probative and some evidence less probative. Dkt. # 38 at 12. Even though the Magistrate Judge indicated an award of attorney's fees would be appropriate, Plaintiff points out the R & R did not award attorney's fees and costs to Plaintiff but specifically recommended the parties be ordered to further brief the issue.

THE UNDERSIGNED'S DE NOVO REVIEW OF R & R

Standard and scope of de novo review of this ERISA case

Although the parties have agreed the Court's evaluation of this ERISA case should be subject to Firestone's default de novo review, the parties' arguments reflect a fundamental disagreement as to what such a review entails. The Court provides the following background as to why the Magistrate Judge found it necessary to reference law from outside this circuit in determining what such a review entails. A little over one year ago, a majority of the en banc Fifth Circuit Court of Appeals overruled its precedent, Pierre v. Conn. Gen. Life Ins. Co. , 932 F.2d 1552 (5th Cir. 1991), which held challenges to an administrator's factual determination that a beneficiary is not eligible must be reviewed under the same abuse of discretion standard that applies when plans have delegated discretion. Ariana M. v. Humana Health Plan of Tex., Inc. , 884 F.3d 246, 256 (5th Cir. 2018) (en banc) (" Ariana M. I ").

In overruling Pierre , the Fifth Circuit became aligned with seven other courts of appeals which long ago determined the Supreme Court in Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) mandated that courts apply a de novo standard of review to all ERISA benefits determinations regardless of whether the denials under review were legally-based plan interpretations or factually-based eligibility determinations, unless an administrator has discretionary authority. See Ariana M. I , 884 F.3d at 248, 255. In Ariana M. I , the Fifth Circuit vacated the district court's order granting summary judgment and remanded for de novo review. Id. at 256.

Like the Magistrate Judge, the Court has been unable to locate any relevant cases from within the Fifth Circuit that elaborate on the de novo standard of review or that apply such a review in facts similar to this case. In its objections, Defendant relies on the trial court's decision in Ariana M. following remand, wherein the court stated de novo review "requires that the court apply the same standard as the plan administrator in deciding whether the benefits were owed under the plan's terms." Ariana M. v. Humana Health Plan of Texas, Inc. , No. H-14-3206, 2018 WL 4384162, at *12 (S.D. Tex. Sept. 14, 2018) (" Ariana M. II "). Although Defendant agrees no deference is accorded to the administrator's decision, relying on this language in Ariana M. II , Defendant argues nothing about de novo review changes the "long-standing legal principles for administration of an ERISA claim under the terms of the plan." Dkt. # 37 at 1.

On the other hand, in her response, Plaintiff argues de novo review requires the Court to independently weigh the facts and opinions in the administrative record to determine whether the claimant has met her burden of showing she is disabled with the meaning of the policy. Dkt. # 38 at 1-2 (citing Richards v. Hewlett-Packard Corp. , 592 F.3d 232, 239 (1st Cir. 2010) ). Plaintiff asserts what happened before the plan administrator is irrelevant. Dkt. # 38 at 1 (citing Diaz v. Prudential Ins. Co. of Am. , 499 F.3d 640, 643 (7th Cir. 2007) ). According to Plaintiff, this is what the Magistrate Judge did: "In order to conduct the Trial on the Papers in this case, [she] reviewed 151 pages of briefing by the parties, a 2,266 page Agreed Record, and held a 2-hour oral hearing. Her Report and Recommendation (R & R) includes over 300 factual citations to the Agreed Record." Dkt. # 38 at 2.

In its order on remand following Ariana M. I , the district court in Ariana M. II reviewed the administrative record de novo to determine whether Humana wrongfully denied Ariana M. benefits. 2018 WL 4384162, at *12. The court stated de novo review requires that the court apply the same standard as the plan administrator in deciding whether the benefits were owed under the plan's terms. Id. (citing Hightower v. Tex. Hosp. Ass'n , 65 F.3d 443, 447 (5th Cir. 1995) ). However, the Fifth Circuit in Hightower simply stated that de novo review requires that the appellate court apply the same standard as the district court when deciding whether summary judgment was properly granted. The question remains whether the district court's de novo review of a plan administrator's decision is the same as an appellate court's de novo review of a district court's grant of summary judgment.

To answer this question, the Magistrate Judge referenced cases from other circuits, specifically noting she had not located post- Ariana M. I cases similar to this one from within this circuit which provide guidance as to the Court's task under the de novo review standard. Dkt. # 33 at 34, n. 18. In the absence of specific law from the Fifth Circuit on this issue, the Court finds it appropriate to consider law from other circuits for guidance on de novo review.

The R & R referenced law from the First, Sixth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals, all of which are consistent in their treatment of de novo review in the ERISA context. Under the de novo standard of review, the court's task "is to determine whether the administrator made a correct decision." Niles v. Am. Airlines, Inc. , 269 Fed. Appx. 827, 832 (10th Cir. 2008) (quoting Hoover v. Provident Life and Accident Ins. Co. , 290 F.3d 801, 808-09 (6th Cir.2002) ). According to the Magistrate Judge, Defendant's decision to terminate benefits is not afforded deference or a presumption of correctness. Dkt. # 33 at 34 (citing Niles , 269 Fed. Appx. at 832 ). As set forth in the R & R, the court must, in a de novo review, "independently weigh the facts and opinions in the administrative record to determine whether the claimant has met his burden of showing that he is disabled within the meaning of the policy." Dkt. # 33 at 34-35 (quoting Richards , 592 F.3d at 239 ).

The R & R noted the burden of proof is on the plaintiff to prove she is disabled even when a court reviews a plan administrator's decision under the de novo standard. Dkt. # 33 at 35 (citing Oliver v. Aetna Life Ins. Co. , 613 Fed. Appx. 892, 896 (11th Cir. 2015) ("[T]he plaintiff bears the burden to prove that he is disabled.") ). The R & R further noted the burden of proof does not change because a plaintiff qualified at one point in time for disability benefits and the benefits were later terminated when she no longer qualified. Dkt. # 33 at 35 (citing Muniz v. Amec Constr. Mgmt., Inc. , 623 F.3d 1290, 1294-96 (9th Cir. 2010) ("the burden of proof continues to lie with the plaintiff when disability benefits are terminated after an initial grant") ). As urged by Defendant in its cross motion for judgment on the record, the Magistrate Judge stated the plaintiff bears the burden of proving by a preponderance of the evidence that she is disabled. Dkt. # 33 at 35 (citing Gilewski v. Provident Life & Accident Ins. Co. , 683 Fed. Appx. 399, 406 (6th Cir. 2017) ("[Plaintiff] must prove by a preponderance of the evidence that he was 'disabled,' as that term is defined in the policy."); see also Dewsnup v. Unum Life Ins. Co. of Am. , No. 2:17-CV-00126-TC, 2018 WL 6478886, at *7 (D. Utah Dec. 10, 2018) (citing Niles , 269 Fed. Appx. at 833 ) ("To prevail, a claimant's entitlement to benefits must be supported by a preponderance of the evidence based on the court's review of the record.") ).

Applying the de novo review standard to Plaintiff, the Magistrate Judge did not give deference to Defendant's decision. Rather, she evaluated the persuasiveness of each side's case to determine if Plaintiff has adequately established that she is disabled under the Policy. Dkt. # 33 at 36-37 (citing Houghton v. Hartford Life & Accident Ins. Co. , No. C16-1186RAJ, 2017 WL 3839577, at *4 (W.D. Wash. Aug. 31, 2017) (citing Oldoerp v. Wells Fargo & Co. Long Term Disability Plan , 12 F.Supp.3d 1237, 1251 (N.D. Cal. 2014) ) ) ).

With these standards in mind, the Court considers the substantive arguments raised by Defendant in its objections.

Discussion of the first and second main objections

As previously stated, in its first main objection, Defendant argues the R & R fails to follow long-standing ERISA principles and Policy language, asserting the following specific arguments: (1) the R & R errs in misstating the Policy's definition of "disability;" (2) the R & R improperly relies on outdated records for its conclusion on present disability; (3) the R & R errs in applying the treating physician rule and giving deference to Plaintiff's treating physicians over independent reviewing physicians; (4) the R & R wrongly relies on Plaintiff's subjective complaints as opposed to objective evidence; (5) the R & R erroneously uses Plaintiff's attorney's arguments in briefing as findings; and (6) the R & R "cherry-picks" from the AR instead of reconciling the evidence as the plan administrator must do in its benefits decision. The Court considers each specific argument below. In its discussion on the third sub-argument regarding the treating physician rule, the Court will also address Defendant's second main objection, that the R & R improperly relies on law outside the Fifth Circuit.

Whether the R & R misstates the Policy's definition of "disability"

In its first sub-argument, Defendant maintains the R & R makes findings that imply a diagnosis is the same as "disability." Dkt. # 37 at 14. Defendant argues a diagnosis is not a condition of coverage under the Policy; rather, the issue is whether Plaintiff is disabled as the term is defined in the Policy.

As set forth in the Recommended Findings of Fact section of the R & R, under the Policy, a claimant is entitled to LTD benefits if she is "disabled" throughout and beyond the "Elimination Period" (the first 90 days of disability). Dkt. # 33 at 4 (citing Dkt. # 17-1 at 25-26). A claimant is "disabled" during the first 24 months if she is "prevented from performing one or more of the Essential Duties" of her "Own Occupation." Id. The Policy changes its definition of disability after 24 months' benefits have been paid. Thereafter, a claimant is "disabled" if she is "prevented from performing one or more of the Essential Duties" of "Any Occupation." Id.

"Any Occupation" means any occupation for which the claimant is qualified by education, training or experience and that has an earnings potential greater than the lesser of the product of the claimant's "Indexed Pre-disability earnings and the Benefit Percentage;" or "the Maximum Monthly Benefit." Dkt. # 33 at 4 (citing Dkt. # 17-1 at 25).

"Essential Duty" means a duty that:

1) is substantial, not incidental;

2) is fundamental or inherent to the occupation, and

3) cannot be reasonably omitted or changed.

Dkt. # 33 at 4 (citing Dkt. # 17-1 at 26).

Contrary to Defendant's assertion, the R & R correctly states the definition of "disabled" and correctly applies that definition to the facts in the record. Noting Plaintiff's LTD Claim was effective April 24, 2008, the Magistrate Judge correctly stated the definition of "disabled" changed under the Policy on April 24, 2010, from "Own Occupation" to "Any Occupation." Dkt. # 33 at 4 (citing AR 1030-31). Thus, according to the Magistrate Judge, Plaintiff was only entitled to LTD benefits beyond April 24, 2010 if she was unable to perform the essential duties of any occupation. Id. The Magistrate Judge also noted a claimant's ability to work the number of hours in her regularly scheduled workweek is an "Essential Duty." Dkt. # 33 at 4 (citing Dkt. # 17-1 at 26).

After identifying the proper definition of disability, the R & R discusses in detail the evidence establishing that Plaintiff cannot work a regular workweek. According to Defendant, the issue is whether there are supported physical and mental limitations for Plaintiff, "and whether in the context of those limitations, [Plaintiff] is rendered incapable of performing job duties of any occupation that meet the earnings standard, as defined by the [Policy]." Dkt. # 37 at 15. Defendant further argues the Magistrate Judge's focus on the earnings requirement reduces the "import of the employability analyses" Defendant conducted. Id. Defendant reasons as follows:

The analysis married the claimant's physical capabilities, education, training, work history, and the definition's earnings requirement. AR 1926-33 (EAR), 1508-19 (First EAR Addendum), 1323-39 (Second EAR Addendum). The fact that Hartford's last employability analysis (AR 1323-39) identified 'high-paying' jobs should not overshadow the fact that the jobs also suited Pike's overall functionality, including her physical and mental capacity for work based on the opinions of two treating physicians and two independent reviewing physicians.

Id.

In the Recommended Findings of Fact section of the R & R, the Magistrate Judge set forth the information Defendant began to gather in October 2009 regarding Plaintiff's functional capacity. Dkt. # 33 at 11-12. As requested, Plaintiff's then-treating orthopedic surgeon, Dr. Rashbaum, provided APS No. 4, which stated Plaintiff could not reach or perform fingering or handling. He provided no restrictions or limitations for sitting, standing, or walking. Dkt. # 33 at 11 (citing AR 1916-17); see also id. at 7. Defendant asked Dr. Rashbaum to specify his opinion on Plaintiff's ability to sit, stand, and walk. AR 944-45. Dr. Rashbaum sent an APS dated March 12, 2010, but it also provided no specific assessment of restrictive limitations, and instead annotated "Patient Unable to Work." AR 1914-15 ("APS No. 5").

Dr. Rashbaum later provided an APS dated April 20, 2010. AR 1909-10 ("APS No. 6"). APS No. 6 explained that Plaintiff could frequently reach at desk level and lift/carry up to ten pounds, but sitting, standing, or walking were all limited to fifteen or twenty minutes at a time, up to four hours total. AR 1909-10, 1912-13. On April 20, 2010, Dr. Rashbaum's office clarified that Plaintiff's functional capacity was limited to four hours a day.

On April 22, 2010, Defendant conducted an employability analysis (the first "EAR"), which evaluated whether there were any occupations Plaintiff was capable of performing based upon her functional capabilities as specified by Dr. Rashbaum in APS No. 6, education (Bachelor of Science in microbiology), training, and work history, and which would meet the earnings requirement in the Policy. Dkt. # 33 at 11-12 (citing AP 938-40, 1926-33). The EAR identified no occupations. Dkt. # 33 at 12 (citing AR 940, 1927).

On August 30, 2016, Defendant advised Plaintiff she was required to attend an independent medical examination ("IME") to clarify her current maximum level of functional ability. Dkt. # 33 at 21 (citing AR 895-96, 995-96). Board Certified Physical Medicine and Rehabilitation physician, John Sklar, M.D., examined Plaintiff in October 2016 prior to Defendant's initial decision to terminate benefits. Id. at 22, 48 (citing AR 1528-30). Defendant asked Dr. Sklar whether, given the totality of the medical evidence and other information provided, he felt there are any restrictions or limitations as to Plaintiff's activity, and if so, would she be capable of performing activity up to forty hours per week with these restrictions. Dkt. # 33 at 22-23 (citing AR 1530).

In response, Dr. Sklar opined Plaintiff could work a light or sedentary occupation up to forty hours a week with the following restrictions and limitations based on her chronic pain condition and "[t]o accommodate her pain:" ability to change positions on an as needed basis with up to six hours per day of sitting and the rest of the day spent in a combination of standing and walking for up to two hours; occasionally lifting up to twenty pounds; and no repetitive bending or twisting. Dkt. # 33 at 23 (citing AR 1530). Dr. Sklar further stated as follows:

This claimant has pain. Pain is clearly not a reason not to work and the evidence based medical literature suggests that persons with chronic pain are actually well served by engaging in normal life activities especially work.

Work then is not only reasonable here it would be a part of the claimant's reasonable treatment plan to treat her pain complaints. I make these recommendations then in the claimant's best interest. It would be predicted that if she continues on an off-work status her situation will continue to deteriorate and returning to work is the one intervention which would actually be expected to stop that deterioration from occurring.

Id.

On December 8, 2016, Defendant updated the first EAR using Dr. Sklar's restrictions and limitations in the IME Report. See Dkt. # 33 at 24, 53 (citing AR 1508-09 ("First EAR Addendum") ). Unlike the first EAR, the First EAR Addendum identified several occupations Plaintiff was well-suited for based on her education, training, and work history, and which met the earnings requirement in the Policy (i.e. , quality-control coordinator, administrative assistant, director of research and development, consultant, project direction, executive secretary). AR 1511-12. "Essentially, the First EAR Addendum found Plaintiff could return to her former occupation, or a similar occupation. AR 1508-09; 1513-19 (as one example, the executive secretary or executive administrative assistant occupation identified is described as providing 'high-level administrative support'

and also training and supervising lower-level clerical staff)." Dkt. # 33 at 24.

As part of its consideration of Plaintiff's appeal, Defendant obtained a Peer Review Report in July 2017 from Board Certified Physical Medicine and Rehabilitation and Board Certified Pain Medicine physician Dr. Jamie L. Lewis. Dkt. # 33 at 29-30; see also AR 1341-54 (Peer Review Report). In his Peer Review Report, Dr. Lewis agreed with Dr. Skylar's IME and found Plaintiff would have the capacity to perform gainful employment on a full time basis with certain "ongoing and indefinite" restrictions. Dkt. # 33 at 50 (citing AR 1349-50). According to Dr. Lewis, although Plaintiff has continued pain complaints, "there are no objective findings that would prevent her ability for sustainable work 40 hours per week." Dkt. # 33 at 50 (citing AR 1350).

In determining whether Plaintiff is capable of performing the essential duties of any occupation, the Magistrate Judge accorded significant weight to the evaluation of Plaintiff by her treating physicians, who have repeatedly concluded Plaintiff can sit, stand, and walk for no more than four hours a day. Dkt. # 33 at 53. According to the Magistrate Judge, these evaluations, along with the evidence regarding Plaintiff's chronic pain and the effects of her pain medication, persuade the Court Plaintiff could not continuously engage in any occupation for which she would be qualified. Id. at 53-54. As will be addressed in more detail below, the Magistrate Judge accorded minimal weight to Dr. Sklar's IME Report, and thus accorded minimal weight to the First EAR Addendum on which it relied. Id. at 54 ("Dr. Skylar's conclusions contradicted those of Plaintiff's treating physicians and thus the First EAR Addendum may not have accurately returned jobs that could be performed by Plaintiff.").

Although Defendant's basic assertion that "a diagnosis is not the same as a disability" is correct, Defendant "over-states this rather generalized objection." Schowalter v. Prudential Ins. Co. of Am. , No. 1:13-CV-249-HJW, 2014 WL 5513710, at *8 (S.D. Ohio Oct. 31, 2014). Similar to the court in Schowalter , the Court does not agree the Magistrate Judge's extensive analysis "conflated" these concepts. Id. For example, the Magistrate Judge emphasized Plaintiff's treating physician, Dr. Gajraj, made clear in his letter dated June 6, 2017 that Plaintiff remained "disabled from competitive work, noting she could not perform more than two to four hours of work per day and would require significant time off-task each day." Dkt. # 33 at 43-44. She also considered, and found unpersuasive, the evidence relied upon by Defendant in support of its assertion that Plaintiff had regained functionality. Id. at 45-52. The R & R reflects the Magistrate Judge appropriately recognized that Plaintiff's "functional abilities (despite her conditions) were the main issue." Schowalter , 2014 WL 5513710, at *8.

The Court is not convinced, as suggested by Defendant, the Magistrate Judge implied a diagnosis is the same as a "disability" as that term is defined under the Policy. The Court finds Defendant's arguments regarding the R & R's definition of "disability" without merit. The Court next considers whether the R & R improperly relies on outdated records.

Whether the R & R improperly relies on outdated records for its conclusion on present disability

In its next sub-argument, Defendant asserts the Magistrate Judge focused on outdated medical records, outdated notations by Defendant in the claims notes, and outdated offers of settlement and payments, asserting past records do not serve to prove present disability. Dkt. # 37 at 9.

Among other things, Defendant criticizes the R & R for "lean[ing] heavily on outdated notations in the claims notes by Hartford at the time of Hartford's previous determinations that Pike met the definition of 'disability' under the [Policy] earlier in the administration of the claim." Id. at 10. According to Defendant, all of these outdated notations occur before Defendant obtained updated medical records which show Plaintiff was "doing well overall" and "[h]er current medications are effective." Id.

According to Defendant, the Magistrate Judge failed to address changes in Plaintiff's current medical records. As one example, Defendant asserts the R & R emphasized Dr. Martin, the neurosurgeon that performed Plaintiff's extreme interbody fusion at L3-4, provided limitations in July 2008 that he opined were permanent. Dkt. # 33 at 37 (citing AR 1925). According to Defendant, Dr. Martin last saw Plaintiff in September 2008, and the IME by Dr. Sklar (discussed in detail below) was conducted in September 2016. Defendant argues as follows:

It follows that limitations based on an October 2016 physical examination of Pike better reflect Pike's present day functionality. Compare Dr. Martin's limitations at AR 1925 (sit for no more than two hours in a day, stand for no more than two hours per day, and walk for no more than two hours per day), with the IME's limitations at AR 1530 (sit up to six hours a day, stand up to two hours a day, walk up to two hours a day).

Dkt. # 37 at 9-10.

In conducting a de novo review, "the Court must resolve questions of material fact, assess expert credibility, and-most critically-weigh the evidence." Weisner v. Liberty Life Assurance Company of Boston , 192 F.Supp.3d 601, 614 (D. Md. 2016)"When reviewing a benefits denial de novo , the Court's 'job is to make [its] own independent determination of whether [the claimant] was entitled to the ... benefits. The correctness, not the reasonableness, of [the] denial of ... benefits is [the Court's] only concern....' " Mantica v. Unum Life Ins. Co. of Am. , No. CV RDB-18-0632, 2019 WL 1129438, at *7 (D. Md. Mar. 12, 2019) (quoting Weisner , 192 F.Supp.3d at 613 (quoting Johnson v. Am. United Life Ins. Co. , 716 F.3d 813, 819 (4th Cir. 2013) ) ). As previously noted and as understood by the Magistrate Judge, "[t]he de novo standard of review allows the court to examine all of the evidence in the record and decide whether or not the Plaintiff is totally disabled without giving any deference to the plan administrator's decision to deny or terminate disability benefits." Gluth v. Fed. Home Loan Mortg. Corp. Long-Term Disability Plan , Civ. No. 1:11-cv-1126, 2013 WL 246897, at *4 (E.D. Va. Jan. 17, 2013)aff'd , 548 Fed. Appx. 73 (4th Cir.2013) (mem.).

Here, the Magistrate Judge considered in detail the evidence in the Agreed Administrative Record and specifically the evidence both supporting and undercutting Plaintiff's claim for continued LTD benefits. Some of the evidence from Plaintiff's treating physicians (whose opinions she found reliable and probative) pre-dates Defendant's termination of benefits, but that does not necessarily make it less probative of Plaintiff's present condition. As noted by the Magistrate Judge, there is evidence in the Agreed Administrative Record indicating Plaintiff's functional impairments persisted beyond December 14, 2016. Dkt. # 33 at 39.

Specifically, the Magistrate Judge noted there are numerous indications from Plaintiff's physicians, and from Defendant's notations, that improvement is not likely with Plaintiff's condition. See , e.g. , AR 1925 (Dr. Martin stating in 2008 the limitations are permanent); AR 955 (note from September 21, 2009 that there was still pain that could be residual damage to the nerves from the hardware hitting the nerve or the original injury and further noting if it was nerve damage it could take 12-18 months to resolve "if at all ") (emphasis added in R & R); AR 956 ("Went to Texas Back Institute on 06/01/2009 and revealed she had permanent nerve damage from the screws.") (emphasis added in R & R); AR 963-64; 2215-2218 (July 16, 2009 sensory nerve conduction study ) (revealing "reduced recruitment and an increased proportion of high amplitude long duration MUAP's in the bilateral L5 myotomes"); AR 922 (June 2011 notation by Defendant that due to her medical history of multiple failed back surgeries and her continued need to take class II medications, "it was likely [Plaintiff] would be unable to participate in any type of work activity on a full time basis" and also noting Plaintiff's level of medication and need to be "bedridden for multiple days at a time would impact even limited activity and would be unable to sustain full time work").

According to Plaintiff, evidence of "permanent" limitations in 2008 and "permanent" nerve damages in 2009 is probative that these conditions continued to exist in 2016 when Defendant terminated Plaintiff's LTD benefits. The Court agrees. Additionally, the Magistrate Judge did not limit her discussion to evidence pre-dating the termination. For example, in updated records from Plaintiff's pain management physician, Dr. Gajraj, for six office visits between February 17, 2015, and May 6, 2016, Dr. Gajraj wrote that "[Plaintiff] is taking her medication as prescribed without significant side-effects and is gaining benefit in terms of analgesia and increased function." Dkt. # 33 at 18 (citing AR 1742-46, 1749). However, each record also noted Plaintiff's chief complaint remained "right-sided low back pain and right leg pain." Id.

In its objections, Defendant focuses on Dr. Gajraj's statement in each record that Plaintiff was taking her "medication as prescribed without significant side-effects and is gaining benefit in terms of analgesia and increased function." Defendant further asserts the most recent May 6, 2016 record states Plaintiff "is doing well overall" and "[h]er current medications are effective." Defendant argues these statements render any claims notations prior to Defendant's receipt of Dr. Gajraj's records in June 2016 irrelevant to Plaintiff's "present-day disability." Dkt. # 37 at 15. According to Defendant, these 2015 and 2016 records clearly provided Defendant with more recent information on which to base its decision.

Before addressing Defendant's separate argument regarding "outdated notations" in its claims notes, the Court notes it does not find Dr. Gajraj's statements that Plaintiff was "gaining benefit in terms of analgesia and increased function" as determinative as Defendant. Nor do these records render any claims notations prior to Defendant's receipt of those records irrelevant to the Court's de novo review. First, as noted by the Magistrate Judge, Dr. Gajraj's assessment in each record was lumbar degenerative disease/radiculopathy. Dkt. # 33 at 19. During this time, Dr. Gajraj also obtained an objective medical test, a Sudoscan on May 14, 2015, to detect peripheral neuropathy (damage to the peripheral nerves). Id. (citing AR 1747-48 (Sudoscan Report) ). Plaintiff's Sudoscan found possible early signs of peripheral autonomic neuropathy. Dkt. # 33 at 19 (citing AR 1747).

Importantly, with her appeal of the December 15, 2016 decision to terminate LTD benefits, Plaintiff's counsel submitted to Defendant a letter from Dr. Gajraj dated June 6, 2017. In this letter, Dr. Gajraj states as follows:

I am a Board Certified Pain Management doctor and have been [Plaintiff's] treating physician or more than five years. I am very familiar with her condition.

[Plaintiff] suffers from chronic pain, secondary to lumbar degenerative disc disease /radiculopathy. Although she is capable of performing limited light tasks, I do not believe she is capable of working in a competitive environment. Even limited physical exertions cause her to require significant down time. If she were to attempt to return to even a sedentary work environment, she would require significant time off-task each day. I believe she could perform no more than 2-4 hours of work per day. She additionally requires the fentanyl patch 100 mcg/hr and Dilaudid simply to achieve limited function. These medications, however can impact cognition and the ability to perform detailed tasks. I consider [Plaintiff] to be disabled from competitive work.

Dkt. # 33 at 28 (citing AR 14). According to Plaintiff's response, Dr. Gajraj's opinion from June 6, 2017 is more than sufficient to support a finding that Plaintiff remains disabled under the Policy.

The Magistrate Judge stated Dr. Gajraj noted Plaintiff is capable of performing limited light tasks; even so, she is not capable of working in a competitive environment, even in a sedentary work environment. Dkt. # 33 at 47 (citing AR 14). The Magistrate Judge noted Plaintiff's treating physicians' relationships with Plaintiff allowed them to personally observe the effects of her diagnoses and assess the credibility of her reports of pain. Dkt. # 33 at 51. Specifically, "Plaintiff's pain management treating physician for over five years, stated in 2017 that Plaintiff suffers from chronic pain, secondary to lumbar degenerative disc disease /radiculopathy and is disabled." Id. (citing AR 14).

Additionally, Defendant argues the "outdated notations in the claims notes in the AR rely on [Plaintiff's] subjective reporting, not on objective medical determinations." Dkt. # 37 at 15. According to Defendant's argument, "[p]roper claims administration says that the administrator should record what the claimant is stating and reporting to the Plan on her claim; but notations of subjective statements by Pike to Hartford does not mean there is 'disability' under the Plan." Id.

A specific "outdated" notation the Magistrate Judge relied upon was from April 2010, wherein Defendant noted Plaintiff had chronic pain which radiated down the leg which may be due to nerve damage. Dkt. # 33 at 12 (citing AR 937). It was noted Plaintiff had been referred to Dr. Bernstein (Plaintiff's first pain management physician) with chronic low back pain and leg pain. According to the Recommended Findings of Fact of the Magistrate Judge, Defendant determined as follows:

Based on the history of the clmt's multiple back surgeries, continued treatment for severe back pain and in to her legs (including class II meds and spinal stimulator) it is likely clmt would be unable to participate in any type of work activity on a full time basis. Clmt's level of medication and need to be bed-ridden for multiple days at a time would impact even limited activity and would be unable to sustain full time work.

Dkt. # 33 at 12 (quoting AR 941).

Not only did the Magistrate Judge consider Defendant's own notations, she also considered that between November 2010 and July 2015, Plaintiff routinely updated Defendant regarding the status of her pain management with Dr. Bernstein and her new pain management physician, Dr. Gajraj, following Dr. Bernstein's retirement. Dkt. # 33 at 13. In the most recent APS No. 10, dated July 10, 2015, Dr. Gajraj listed Plaintiff's primary diagnosis as lumbar degenerative disc disease and her secondary diagnosis as lumbar radiculopathy. Id. (citing AR 1752-53). Dr. Gajraj listed Plaintiff's medications as Dilaudid and Fentanyl and her current subjective symptoms as right sided low back pain and right leg pain and tenderness. Id. (citing AR 1752). He opined Plaintiff could walk, stand, and sit for fifteen to twenty minutes at a time and for no longer than four hours per day. Id. (citing AR 1753). Dr. Gajraj also stated he did not believe Plaintiff was competent to direct the use of her claim proceeds. Id. (citing AR 1753).

As set forth by the Magistrate Judge, on February 20, 2011, Hartford management reviewed Plaintiff's claim and noted:

Dkt. # 33 at 14 (quoting AR 926).

On June 4, 2011, Defendant determined that, due to her medical history of multiple failed back surgeries and her continued need to take class II medications, "it was likely [Plaintiff] would be unable to participate in any type of work activity on a full time basis." Id. (citing AR 922). It was further noted that Plaintiff's level of medication and need to be "bed-ridden for multiple days at a time would impact even limited activity and would be unable to sustain full time work." Id. (citing AR 922).

The Court does not find the Magistrate Judge's reliance on these notations improper. Nor does the Court agree with Defendant that all the notations only reflect Plaintiff's subjective reporting and do not reflect objective determinations. The notations are especially relevant to how, at least at one time, Defendant viewed Plaintiff's use of class II medications and how that would impact even limited activity and her ability to sustain full time work.

Defendant argues a "fatal problem with the R & R's use and analysis of outdated records to prove disability is that it shifts the burden of proof." Id. at 7. According to Defendant, although the R & R "pays lip service" to the burden of proof (Dkt. # 33 at 35-36), "its findings impermissibly shift the burden of proof to Hartford to show that Pike is no longer disabled." Dkt. # 37 at 7 (citing Dkt. # 33 at 39-40 ("Hartford previously determined Plaintiff could not perform the essential duties of any occupation after the definition of 'disabled' changed on April 29, 2010.... Here, Hartford paid LTD benefits under the more restrictive definition of 'disabled' for over six years, until December 14, 2016; thus, the Court would expect to see evidence of improvement in the record."); id. at 55 ("The Court, having considered all of the evidence relied upon by Hartford in justifying its termination of benefits, finds no evidence of improvement in Plaintiff's condition since Hartford previously found she was unable to sustain full time work in any occupation.") ). Defendant argues as follows:

Under the R & R's rationale and findings, once disabled and once benefits have been paid, an administrator cannot cease payments unless it can show that the claimant has improved . This is contrary to what the Fifth Circuit has said about the burden of proof on disability claims under the 'any occupation' standard. Hilton v. Ashland Oil Inc. , 103 F.3d 124 (5th Cir. 1996) (unpublished) (abuse of discretion standard of review).

Dkt. # 37 at 8 (emphasis in original).

In her discussion, the Magistrate Judge agreed with Defendant's argument that an administrator's past payment of benefits does not "operate forever as an estoppel so that an insurer can never change its mind." Id. However, the Magistrate Judge stated Defendant failed to acknowledge that past payment of benefits can be a consideration in the Court's de novo review. Dkt. # 33 at 39-40 (citing Muniz v. Amec Const. Mgmt., Inc. , 623 F.3d 1290, 1297 (9th Cir. 2010) (quoting McOsker v. Paul Revere Life Insurance Co. , 279 F.3d 586, 589 (8th Cir.2002) ) ). The Magistrate Judge noted in McOsker , an abuse of discretion case, the Eighth Circuit stated that paying benefits does not operate "forever as an estoppel so that an insurer can never change its mind; but unless information available to an insurer alters in some significant way, the previous payment of benefits is a circumstance that must weigh against the propriety of an insurer's decision to discontinue those payments ." Dkt. # 33 at 40 (quoting McOsker , 279 F.3d at 589 (emphasis added in R & R) ).

The Magistrate Judge also cited Saffon v. Wells Fargo & Co. Long Term Disability Plan , 522 F.3d 863 (9th Cir. 2008), wherein the Ninth Circuit Court of Appeals stated "MetLife had been paying Saffon long-term disability benefits for a year, which suggests that she was already disabled." Dkt. # 33 at 40 (quoting Saffon , 522 F.3d at 871 ). The court opined that to find the plaintiff no longer disabled, "one would expect the MRIs to show an improvement , not a lack of degeneration." Id. (emphasis in original). According to the Magistrate Judge, this requirement imposes no burden of proof on the defendant, but is instead a logical inference that the court may make (in its de novo review) based on a specific set of facts. Dkt. # 33 at 40 (citing Reetz v. Hartford Life & Accident Ins. Co. , 294 F.Supp.3d 1068, 1079 (W.D. Wash. 2018) (citing Schramm v. CNA Fin. Corp. Insured Grp. Ben. Program , 718 F.Supp.2d 1151, 1162 (N.D. Cal. 2010) ) ) ).

In its de novo review of the R & R, the Court has located Sixth Circuit cases involving an abuse of discretion standard which stand for the proposition that "it is reasonable to require a plan administrator who determines that a participant meets the definition of 'disabled,' then reverses course and declares that same participant 'not disabled' to have a reason for the change; to do otherwise would be the very definition of arbitrary and capricious." Morris v. Am. Elec. Power LTD Plan , 399 Fed. Appx. 978, 984 (6th Cir.2010) (also stating "it does not follow, however, either logically or from our decision in Kramer , that the explanation [for the termination of benefits] must be that the plan administrator has acquired new evidence demonstrating that the participant's medical condition has improved"); see also Kramer v. Paul Revere Life Ins. Co. , 571 F.3d 499, 507 (6th Cir.2009). Both cases involved terminations under the same standard by which the claimant's disability was evaluated. Here, the Court finds Defendant's previous payment of benefits under the same definition of "disability" is a relevant consideration in the Court's de novo review.

As noted above, this language does not impose a burden of proof on a defendant, but rather demonstrates a logical inference that a court may make based on a specific set of facts. As set forth and applied by the Magistrate Judge, in reviewing the administrative record, the Court evaluates the persuasiveness of each party's case, which necessarily entails making reasonable inferences where appropriate. Plaintiff, however, carries the ultimate burden to prove that she was disabled under the terms of the Policy. See Schramm , 718 F.Supp.2d at 1162.

Defendant relies on Hilton v. Ashland Oil Inc. , 103 F.3d 124, 1996 WL 731358 (5th Cir. 1996) (unpublished), asserting the Magistrate Judge shifted the burden of proof from Plaintiff to Defendant despite her "lip service" to the burden of proof. See Dkt. # 37 at 7. Hilton is easily distinguishable. In that abuse of discretion case, the Fifth Circuit Court of Appeals reversed the judgment of the district court to the extent it held the plan administrator abused its discretion in concluding the claimant had not shown he came within the plan's definition of disability. 1996 WL 731358, *1.

According to the appellate court, despite it being the claimant's burden of supporting his asserted disability with medical evidence, Prudential attempted to obtain medical information from the claimant's physician and vocational reports regarding the claimant's workers' compensation claim. Id. at *4. "Scant as it was," Prudential was able to obtain some information which indicated, among other things, "[t]here was about an 80 percent chance that we can get [Hilton] over this without surgery." Id. Although Prudential attempted to get specific information from the claimant's treating physician, "the claims administrator received no additional information from that physician or from Hilton." Id.

"Having nothing before her but the meager results of her own voluntary efforts to do Hilton's evidence-gathering job for him, the claims administrator recommended denial of Hilton's claim for failure to meet his burden of supplying acceptable evidence in support of the Plan's 'any occupation' definition of disability." Id. "That recommendation was based on Prudential's inference, from the little evidence that was available, of the 'possibility' of Hilton's being retained for sedentary work, coupled with the levels of his education and prior work experience, and the dearth of medical evidence that he could not perform or be re-trained to perform the work required for any occupation." Id.

On appeal, the Fifth Circuit noted the plain wording of the plan "expressly placed on Hilton-as the party claiming to be disabled, and thus entitled to benefits-the burden of proving (i.e., submitting credible and probative medical evidence satisfactory to the Plan ), that he was in fact disabled to that extent." Id. at *5 (emphasis in original). Although the Fifth Circuit acknowledged the district court's "talismanic recitation" regarding the abuse of discretion standard was correctly recited, the district court's own opinion demonstrated that "in actuality" the court had "shifted the burden of proof from Hilton to the plan administrator" and had applied the clear error standard of review to the plan administrator's determination rather than the substantially more deferential abuse of discretion standard. Id. at *6. According to the Fifth Circuit,

[o]ur synopsis of the facts found by the district court and present in the record reflects a cavalier attitude and lackadaisical effort on Hilton's part regarding the submission of probative evidence sufficient to support a determination that despite his education, training, and experience, he could not perform any job or be re-trained to do so. Indeed, the slight evidence before the plan administrator at the time the decision was made had been assembled thanks to the efforts of the claims administrator and her persistence in badgering physicians and the compensation carrier for additional information. Even with the luxury of two extensions of 30 days, neither Hilton nor his counsel produced positive evidence of the kind needed to meet the test of disability under the Plan.

Id. (emphasis in original). The claimant essentially presented no evidence in support of his claim. Id. at *8.

Unlike in Hilton , Plaintiff presented significant evidence in support of her claim. As previously noted, the Agreed Administrative Record comprises 2,266 pages. The Court finds Defendant's arguments regarding outdated records and about the burden of proof without merit.

Whether the R & R errs in applying the treating physician rule and giving deference to Plaintiff's treating physicians over independent reviewing physicians and whether the R & R improperly relies on caselaw from outside the Fifth Circuit

The next sub-argument raised by Defendant in support of its first main objection is the R & R errs by applying the treating physician rule applicable in Social Security cases and giving deference to Plaintiff's treating physicians over independent reviewing physicians. In its consideration of this sub-argument, the Court will also consider Defendant's second main objection to the R & R, that the Magistrate Judge relied on law outside this circuit "that is contrary to the way the Fifth Circuit will decide these issues." Dkt. # 37 at 20-22. As a general matter, Defendant asserts the R & R erred in using Ninth Circuit law and in specifically relying on Reetz v. Hartford Life & Accident Ins. Co. , 294 F.Supp.3d 1068 (W.D. Wash. 2018), a district court order within the Ninth Circuit "that no party here cited in their briefs or oral argument" and that the Magistrate Judge did not present to the parties prior to the issuance of the R & R. Dkt. # 37 at 21.

Specifically in the context of its sub-argument regarding the so-called treating physician rule, Defendant also objects to the R & R's reliance on Reetz , see id. at 2-5 & 21, asserting the Reetz court improperly relied on the treating physician rule. According to Defendant, nothing about de novo review changes that ERISA does not require plan