DeCesare v. Aetna Life Insurance (95 F. Supp. 3d 458, 2015)

OPINION & ORDER

KENNETH M. KARAS, District Judge.

Plaintiff Charles L. DeCesare (“Plaintiff’ or “DeCesare”) brings this Action against Defendants The Aetna Life Insurance Company (“Aetna”) and The Dress Bam Long Term Disability Plan (the “Plan”) (collectively “Defendants”) for violations of § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), alleging that Defendants improperly discontinued Plaintiffs disability benefits under the Plan based on a determination that Plaintiff was no longer totally disabled. Plaintiff also alleges that Defendants violated § 503 of ERISA, 29 U.S.C. § 1133, for failing to provide adequate notice setting forth the specific reasons for the denial of benefits under the Plan and for failing to provide a “full and fair review” of Plaintiffs claim. Defendants move for summary judgment. (Defs.’ Mot. for Summ. J. (Dkt. No. 35).) For the following reasons, Defendants’ Motion is granted.

/. BACKGROUND

A. Factual Background 1. The Plan

The Dress Barn, Inc. (“The Dress Barn”) employed Plaintiff as an AVP Creative Director of Marketing until March 26, 2009. (Defs.’ 56.1 Statement of Material Facts (“Defs.’ 56.1”) ¶¶ 1, 7 (Dkt. No. 36); Decl. of Julia Bell (“Bell Deck”) 145 (Dkt. No. 37).) The Dress Barn established and maintained the Plan, which is an employee welfare benefit plan governed by ERISA. (Id. ¶¶ 2, 4; Bell Decl. 1-119.) DeCesare was a participant in the Plan. (Defs.’ 56.1 ¶ 5.) Aetna issued a group insurance policy to fund benefits under the Plan, identified by policy number GP-818946, effective May 1, 2007. (Defs.’ 56.1 ¶ 3; Bell Decl. 1.) Aetna served as the claim administrator for the Plan. (Defs.’ 56.1 ¶ 6; Bell Decl. 44.)

The Plan defines the Test of Disability as follows:

From the date that you first become disabled and until Monthly Benefits are payable for 24 months, you will be deemed to be disabled on any day if ... you are not able to perform the material duties of your own occupation solely because of[ ] disease or injury; and ... your work earnings are 80% or less of your adjusted predisability earnings.

After the first 24 months that any Monthly Benefit is payable during a period of disability, you will be deemed to be disabled on any day if you are not able to work at any reasonable occupation solely because of[ ] disease[ ] or injury. If your own occupation requires a professional or occupational license or certification of any kind, you will not be deemed to be disabled solely because of the loss of that license or certification.

(Defs.’ 56.1 ¶ 27; Bell Decl. 101 (emphasis omitted).) The Plan defines “Period of Disability” as follows:

A period of disability starts on the first day you are disabled as a direct result of a significant change in your physical or mental condition as a result of a disease or injury occurring while you are insured under this Plan. You must be under the care of a physician. (You will not be deemed under the care of a physician more than 31 days before the date he or she has seen and treated you in person for the disease or injury that caused the disability.) If Aetna and your physician determine that you have reached your maximum point of recovery, you are no longer required to be under the care of a physician. Aetna will require that you submit proof of your continuing disability on an annual basis.

(Defs.’ 56.1 ¶ 28; Bell Decl. 101 (emphasis omitted).) The Plan also states that the Period of Disability ends on the first to occur of several events, including the date “Aetna finds you are no longer disabled or the date you fail to furnish proof that you are disabled ... [and] [t]he date an independent medical exam report or functional capacity evaluation fails to confirm your disability.” (Defs.’ 56.1 ¶29; Bell Decl. 102.) Furthermore, the Plan provides that:

Under Section 503 of Title 1 of [ERISA], Aetna is a fiduciary. It has complete authority to review all denied claims for benefits under th[e] policy. In exercising such fiduciary responsibility, Aetna shall have the discretionary authority to ... determine whether and to what extent employees and beneficiaries are entitled to benefits; and construe any disputed or doubtful terms of th[e] policy. Aetna shall be deemed to have properly exercised such authority. It must not abuse its discretion by acting arbitrarily and capriciously. Aetna has the right to adopt reasonable[ ] policies[,] procedures[,] rules, and interpretations[ ] of th[e] policy to promote orderly and efficient administration.

(Defs.’ 56.1 ¶ 30; Bell Decl. 44.)

2. DeCesare’s Claim for Short Term Disability Benefits

On March 27, 2009, DeCesare submitted his claim for Short Term Disability (“STD”) benefits due to his anticipated absence from work following spinal surgery scheduled for March 30, 2009. (Defs.’ 56.1 ¶ 8; Bell Deck 145-146, 170, 177.) In support of his claim, DeCesare submitted an Attending Physician Statement (“APS”) dated March 30, 2009, from Dr. Debra Benzil (“Dr. Benzil”), his treating neurosurgeon. (Defs.’ 56.1 ¶ 9; Bell Deck 1736-38.) The APS indicated that DeCesare underwent spinal surgery on March 30, 2009, was “currently [and] completely disabled,” and was restricted from “driving, lifting, pushing, [and] pulling.” (Defs.’ 56.1 ¶¶ 9-10; Bell Deck 1737.) Moreover, Dr. Benzil attached to the APS her office note dated March 17, 2009, which details her examination of DeCesare relating to his pre-operative complaints of back pain and her recommendation for surgery. (Defs.’ 56.1 ¶ 10; Bell Decl. 1738.) After reviewing DeCesare’s claim for STD benefits, Aetna certified his period of disability for 42 days (March 30, 2009 through May 10, 2009) by letter dated April 14, 2009. (Defs.’ 56.1 ¶ 11; Bell Decl. 203.)

Dr. Benzil submitted an additional APS dated April 28, 2009, stating that DeCesare was “recovering from extensive spinal surgery” performed on March 30, 2009, and that DeCesare had “[n]o ability to work,” and was restricted from “lifting, pulling, pushing, [and] driving.” (Defs.’ 56.1 ¶¶ 12-13; Bell Decl. 1725-26.) Dr. Benzil estimated that DeCesare would be able to return to work on June 8, 2009. (Defs.’ 56.1 ¶ 13; Bell Decl. 1726.) The APS also referenced an office note dated April 21, 2009, in which Dr. Benzil reported on DeCesare’s post-operative follow-up visit three weeks after his surgery and stated that DeCesare had been on methadone pre-operatively and was then “down to about five Percocet per day.” (Defs.’ 56.1 ¶ 14-15; Bell Decl. 1661, 1725.) The office note explained that DeCesare had “made excellent early progress considering he had been on methadone for almost a year” and he was “already on significantly less medication.” (Defs.’ 56.1 ¶ 17; Bell. Decl. 1661.) By letter dated May 5, 2009, Aetna certified DeCesare’s claim for continuing STD benefits for an increased period of disability of 70 days (March 30, 2009 to June 7, 2009). (Defs.’ 56.1 ¶18; Bell Decl. 192, 206.)

In a letter dated June 2, 2009, Dr. Benzil informed Aetna that DeCesare should remain out of work through July 7, 2009. (Defs.’ 56.1 ¶ 19; Bell Decl. 1660.) In an office note dated June 2, 2009, Dr. Benzil reported that she saw DeCesare for a follow-up visit and noted that he had “generally done well since surgery” and was “making progress.” (Defs.’ 56.1 ¶¶ 20-21; Bell Decl. 1659.) In the same note, Dr. Benzil also stated that DeCesare could “begin to significantly increase his activity [by] doing more back flexibility and back strengthening work.” (Defs.’ 56.1 ¶ 22; Bell Decl. 1659.) Moreover, Dr. Benzil reported that DeCesare could “do some bending” but “still need[ed] to refrain from heavy working.” (Defs.’ 56.1 ¶ 22; Bell Decl. 1659.) She concluded that DeCesare could “remain out of work for an additional four weeks[,] [and] [a]fter such time ... it [was] okay for him to return to work, perhaps on light duty.” (Defs.’ 56.1 ¶ 22; Bell Decl. 1659.)

Dr. Steven Hoverman (“Dr. Hover-man”), one of DeCesare’s primary care physicians, stated in an APS dated June 3, 2009 that DeCesare had symptoms of “back pain” and that he had “[n]o ability to work.” (Defs.’ 56.1 ¶ 23; Bell Decl. 1671-72.) On June 4, 2009, Dr. Hoverman completed a Capabilities and Limitations Worksheet, indicating that DeCesare was capable of working zero hours per day. (Defs.’ 56.1 ¶ 24; Bell Decl. 1673.)

By letter dated June 9, 2009, Aetna certified DeCesare’s claim for STD benefits for a period of 100 days, and by letter dated June 23, 2009 extended his disability period for 189 days (March 30, 2009 to October 4, 2009). (Defs.’ 56.1 ¶¶ 25-26; Bell Decl. 195, 199.) In its June 23, 2009 letter, Aetna advised DeCesare that his STD benefits would be exhausted as of October 4, 2009. (Defs.’ 56.1 ¶ 26; Bell Decl. 199, 218.)

3. DeCesare’s Claim for Long-Term Disability Benefits

On May 24, 2009, DeCesare’s claim file was transferred from Aetna’s STD Claim Unit to its Long Term Disability (“LTD”) Claim Unit to allow the LTD Unit to begin its review. (Defs.’ 56.1 ¶ 31; Bell Decl. 532.) During an initial telephone interview on June 3, 2009, DeCesare informed Aetna that he had undergone back surgery on March 30, 2009, and was attending physical therapy twice per week. (Defs.’ 56.1 ¶ 32; Bell Decl. 541.) DeCesare also stated that he was unsure whether he could return to work on July 7, 2009 because his job required him to “do a lot of lifting ... on photo shoots,” and he did not feel he was able to perform the bending, lifting, or carrying that his job required. (Defs.’ 56.1 ¶ 33; Bell Decl. 541.) He reported that his physician advised him not to lift more than a half gallon of milk and not to engage in any lifting, pushing, or pulling. (Defs.’ 56.1 ¶ 34; Bell Decl. 542.)

At Aetna’s request, DeCesare submitted a Work History and Education Questionnaire dated June 4, 2009. (Defs.’ 56.1 ¶ 35; Bell Decl. 1676.) On the questionnaire, he described his job as an “AVP Director” as “[ljifting heavy boxes, climbing ladders to install heavy objects[,] stage set-ups[,] lifting props[,] furniture[,] equipment!]] [and] walls[,] photo shoot set ups[,] 10-15 h[our] a day on feet[,] lifting equipment^] [and] set-up.” (Defs.’ 56.1 ¶ 35; Bell Decl. 1680.) DeCesare stated he was unable to perform any of these tasks due to “extreme pain” in his back. (Defs.’ 56.1 ¶ 35; Bell Decl. 1680.)

On or about June 11, 2009, The Dress Barn provided a job description for DeCesare’s position as “Creative Director — in store visuals and design.” (Defs.’ 56.1 ¶ 36; Bell Decl. 1691.) The physical demands listed in the job description included:

• Ability to stand and walk for long period[s] of time (photo shoots, store visits, vendor visits)[;]

• Carrying, pushing, pulling, stretching, reaching, twisting, bending [for] 25% of time[;]

• Climbing ladders 10% of time[;]

• Lifting over 20 to 40 pounds, at time[s] repetitively] [for] 20% of time[;]

• Travel over 50% driving and air travel to stores, vendors[,] and photo shoots[;]

• Sitting 20% of time[;]

• Hand dexterity [including] keyboarding, sketching [for] 10% of time[;]

• Setting up stores with heavy fixtures to show prototypes and stage setupsf;]

• Hanging posters [and] dimension objects[,] including merchandise while on ladders[.]

(Defs.’ 56.1 ¶ 36; Bell Decl. 1691.)

On June 28, 2009, DeCesare became eligible for LTD benefits. (Defs.’ 56.1 ¶ 37; Bell Decl. 548.) By letter dated June 11, 2009, Aetna advised DeCesare that he would be eligible to receive monthly LTD benefits effective June 28, 2009 because it had determined that he met the Plan’s “own occupation” definition of disability. (Defs.’ 56.1 ¶ 38; Bell Decl. 385-87.) The letter stated that based on the terms of the Plan, DeCesare could be eligible for benefits for up to 24 months, as long as he remained disabled from his own occupation and Aetna would periodically re-evaluate his eligibility for continuing LTD benefits by requesting updated medical information from his treating physician or a physician of Aetna’s choice. (Defs.’ 56.1 ¶¶ 39-40; Bell Decl. 385.) Aetna also informed DeCesare that if he was still disabled'as of June 28, 2011, the Plan required that he meet a more restrictive definition of disability, requiring him to demonstrate that he was not able to work at “any reasonable occupation solely because of[ ] disease[ ] or injury.” (Defs.’ 56,1 ¶ 41; Bell Decl. 385.)

By letter dated June 17, 2009, Dr. Hoverman advised Aetna that DeCesare “continue[d] to be disabled from the duties of work,” specifically lifting, climbing, pushing of heavy objects, and sitting and standing for long periods of time, and that he recommended “continuing] Disability until October 31, 2009.”- (Defs.’ 56.1 ¶ 42; Bell Decl. 1692.) On or around July 1, 2009, Aetna Claim Analyst Allison Tardif (“Tardif’) requested DeCesare’s updated medical records. (Defs.’ 56.1 ¶ 43; Bell Decl. 561-62.) On October 21, 2009, Tardif received and reviewed a letter from Dr. Hoverman dated October 14, 2009, informing Aetna that he evaluated DeCesare on September 30, 2009 and recommended that he “remain disabled from work given the progress of his lumbar decompression and inter body fusion.” (Defs.’ 56.1 ¶ 44;. Bell Decl. 565, 1646.) In the letter, Dr. Hoverman reported that DeCesare was continuing physical therapy with pain management and medication, but that his limitations included “no lifting, climbing, pushing of heavy objects, and sitting or standing for long periods of time.” (Defs.’ 56.1 ¶ 45; Bell Decl. 1646.) Dr. Hoverman concluded that “[d]ue to slow healing and chronic pain, ''[he recommended DeCesare’s] disability continue until March 31, 2010.” (Defs.’ 56.1 ¶ 46; Bell Decl. 1647.) After reviewing the letter, Tardif ordered DeCesare’s updated physical therapy records. (Defs.’ 56.1 ¶ 47; Bell Decl. 566.) On November 11, 2009 Aetna received DeCesare’s physical therapy records regarding treatment he had received from April 30, 2009 to October 20, 2009 from St. Anthony’s Community Hospital Center for Physical Rehabilitation (“St. Anthony’s”). (Defs.’ 56.1 ¶ 48; Bell Decl. 568, 1616-1640.) In a physical therapy (“PT”) note dated April 30, 2009, the physical therapist reported that DeCesare complained that his back was “still painful.” (Defs.’ 56.1 ¶ 49; Bell Decl. 568, 1616.) In a PT note dated July 29, 2009, the physical therapist noted that DeCesare complained of pain at a level of seven out of ten, and upon physical examination demonstrated that his lumbosacral flexion was 0-25 degrees, rotation on the left was 0-20 degrees, and rotation on the right' was 0-20 degrees. (Defs.’ 56.1 ¶ 50; Bell Decl. 568, 1621, 1636.) The physical therapist also noted that DeCesare’s condition was slowly improving. (Defs.’ 56.1 ¶ 51; Bell. Decl. 568, 1621, 1636.) DeCesare attended PT' on September 9, 2009 and demonstrated decreased functionality and pain and, thus, •the physical therapist recommended that he begin a pain management program. (Defs.’ 56.1 ¶ 52; Bell. Decl. 568,1622.) At a PT session on October 15, 2009, DeCesare reported constant pain at a level of eight out of ten, he complained of “feelfing] really sore [with] cold weather,” and the physical therapist stated that although he was progressing slowly, there was still weakness in his lower back. (Defs.’ 56.1 ¶¶ 53-54; Bell Decl. 568, 1623, 1642.) In a PT note dated October 20, 2009, the physical therapist noted that DeCesare would continue with a course of PT to increase strength in his lower back. (Defs.’ 56.1 ¶ 55; Bell Decl. 568, 1642.) After a review of these records, Tardif decided to refer DeCesare’s records for a review by a nurse consultant. (Defs.’ 56.1 ¶ 56; Bell Decl. 568.)

Tardif contacted DeCesare to conduct an interview on November 30, 2009. (Defs.’ 56.1 ¶ 57.) During the interview, DeCesare reported that due to his lower back pain, he shopped for groceries with his wife, only drove very short distances, did not use a computer because of his difficulty with sitting, did not sleep well because of his pain, and his energy level was only at 25% of what it “used to be.” (Defs.’ 56.1 ¶ 57; Bell Decl. 569.) DeCesare also stated that the “biggest obstacles” to returning to work included his pain, his limited ability to lift and sit for long periods of time, and his decreased concentration level due to his pain. (Defs.’ 56.1 ¶ 58; Bell Decl. 570.) Following the interview, Tardif ordered all of DeCesare’s medical records from Dr. Hoverman. (Defs.’ 56.1 ¶ 59; Bell Decl. 571.)

During a follow-up telephone call with Tardif on January 5, 2010, DeCesare reported that he experienced pain every day, and while he was trying to stop taking prescription medications, the pain was so severe that he was unable to “sit down or do anything.” (Defs.’ 56.1 ¶ 60; Bell Decl. 574.) He also stated that he was unsure of whether he should have had the surgery, was concerned about the quality of his life, was going to PT twice per week, was still seeing Dr. Hoverman, as well as a pain management specialist, and had not seen his back surgeon. (Defs.’ 56.1 ¶¶ 61-62; Bell Decl. 574.) On January 5, 2010, Tardif transferred DeCesare’s claim for continuing LTD benefits to Claim Examiner Kelly Wiers (“Wiers”) due to its complexity. (Defs.’ 56.1 ¶ 63; Bell Decl. 574-78.)

On March 6, 2010, Wiers requested that DeCesare’s treating physician provide updated APS forms to assess his current level of functional capacity, and informed DeCesare that he was required to provide “objective medical evidence from [his] attending physician” supporting the claim that he remained totally disabled. (Defs.’ 56.1 ¶¶ 64-65; Bell Decl. 401, 585.) On March 24, 2010, Wiers received Dr. Hover-man’s APS, in which he diagnosed DeCesare with lumbar spinal stenosis, secondary to osteoarthritis of the knee and stated that DeCesare had “[n]o ability to work” and required narcotics' and analgesics to function with the pain. (Defs.’ 56.1 ¶¶ 66-67; Bell Decl. 2004-05.) Dr. Hoverman indicated that DeCesare’s status had “[Regressed” because of his “inability to achieve satisfactory pain resolution.” (Defs.’ 56.1 ¶ 68; Bell Decl. 2005.) Dr. Hoverman also completed a Capabilities and Limitations Worksheet indicating that DeCesare was capable of working zero hours per day. (Defs.’ 56.1 ¶ 69; Bell Decl. 2009.)

On April 23, 2010, Wiers conducted a follow-up interview with DeCesare. (Defs.’ 56.1 ¶ 70; Bell Decl. 589.) During the interview, DeCesare stated that he experienced significant pain on a daily basis and was currently taking narcotic prescription medications, including Opana, Diazepam, and Toprol. (Defs.’ 56.1 ¶ 70; Bell Decl. 590.) He also informed Wiers that he was attending PT two .times per week in an attempt to get stronger, but while he had injections and acupuncture, there had been no relief for his situation. (Defs.’ 56.1 ¶¶ 71-72; Bell Decl. 590.)

DeCesare’s claim was referred to Aetna’s Complex Claim Investigative Unit (“CCIU”) on April 27, 2010 because his medical records indicated that his surgeon initially reported that he should only be out of work for a maximum of 84 days following his surgery. (Defs.’ 56.1 ¶ 73; Bell Decl. 594.) Aetna Senior Technical Specialist Teri Kili (“Kili”) performed a detailed database and internet search, but found no information on DeCesare other than his home address, car, and neighborhood information, and Kili stated that her search did not raise any red flags beyond the fact that the “expected duration for time of [his] surgery exceeded normal durations.” (Defs.’ 56.1 ¶¶ 74-75; Bell Decl. 594.) Kili recommended that Aetna conduct a full clinical review, a detailed claimant interview, send a Capabilities and Limitations Worksheet to DeCesare’s treating physicians for completion, and check the terms of the Plan to determine if mandatory rehabilitation would be appropriate. (Defs.’ 56.1 ¶ 76; Bell Decl. 594.) DeCesare’s file was returned to Wiers and she ordered updated medical records. (Defs.’ 56.1 ¶ 77; Bell Decl. 597.)

DeCesare submitted his Notice of Award from the Social Security Administration (“SSA”) dated July 31, 2010 to Aetna, which indicated that he was awarded Social Security Disability Income (“SSDI”) benefits beginning in September 2009 in the amount of $2,175 per month. (Defs.’ 56.1 ¶ 78; Bell Decl. 894-98.) DeCesare was also awarded retroactive SSDI benefits in the amount of $23,761 for the period of time between September 2009 and July 31, 2010. (Defs.’ 56.1 ¶ 79; Bell Decl. 894-95.)

By letter dated December 29, 2010, Aetna advised DeCesare that because the Plan Elimination Period expired on June 28, 2009, the 24-month “own occupational” disability period would end with Aetna’s benefit payment on June 27, 2011 (the “Test Change Date”) and that to be entitled to LTD benefits after that date, DeCesare would need to be considered “disabled from performing any gainful occupation.” (Defs.’ 56.1 ¶ 80; Bell Decl. 418-19.) Aetna also informed DeCesare that it would commence its review of his claim for continuing LTD benefits under the “any gainful occupation” disability test in anticipation of the Test Change Date, and requested that he complete an updated Work History and Education Questionnaire, a Medical Professionals List, an Other Income Questionnaire, and an Authorization to Request Protected Health Information form. (Defs.’ 56.1 ¶ 81; Bell Decl. 419.)

In his Work History and Education Questionnaire dated January 5, 2011, DeCesare stated that he had a Bachelors Degree in Fine Arts and that prior to working at The Dress Barn in 2000, he was employed at Hechts as a Creative Director from 1991 to 1997. (Defs.’ 56.1 ¶ 82; Bell Decl. 1420-21.) DeCesare explained that his job at Dress Barn required him to “display setups,” which included activities such as “lifting, pushing, pulling, [and] climbing ladders,” that he was required to “frequently” bend or stoop, crawl, reach above the shoulders, kneel, push or pull, lift up to 10 pounds, 11-25 pounds, 26-50 pounds, and 50 pounds or more, and that he worked 10-hour days during which he was “continuously” sitting, standing, and walking. (Defs.’ 56.1 ¶¶ 83-85; Bell Decl. 1420.) He also reported that due to his disability, he was unable to renovate his house, play basketball, run, plant shrubs, sculpt, and perform household chores, and that he could “no longer do anything” and “fe[lt] worthless as the smallest activity cause[d] pounding pain in [his] back and knees.” (Defs.’ 56.1 ¶¶ 86-87; Bell Decl. 1421.)

Aetna received an APS and Capabilities and Limitations Worksheet from Dr. Shuang-Ping Wang (“Dr. Wang”), DeCesare’s primary care physician, on January 14, 2011. (Defs.’ 56.1 ¶ 89; Bell Decl. 621, 1108-09.) In the APS dated January 10, 2011, Dr. Wang listed DeCesare’s symptoms as “severe back and knee pain,” diagnosed DeCesare with spinal stenosis, secondary to osteoarthritis of the knees, indicated that DeCesare had “[n]o ability to work,” and could not participate in a Vocational Rehabilitation program due to his inability to control his pain. (Defs.’ 56.1 ¶¶ 90-93; Bell Decl. 1108-09.) On January 11, 2011, Aetna received DeCesare’s medical records from July 20, 2009 through December 20, 2010 from Dr. Michael Dobrow (“Dr. Dobrow”), DeCesare’s treating pain management specialist. (Defs.’ 56.1 ¶ 94; Bell Decl. 620.) In his most recent office note dated December 20, 2010, Dr. Dobrow stated that DeCesare continued to suffer from lower back pain to both legs, which worsened with physical activity. (Defs.’ 56.1 ¶ 95; Bell Decl. 942.) Dr. Dobrow indicated that DeCesare was prescribed Roxicodone and Opana and that he was “able to take care of his obligations to his job and family and able to maintain his activities of daily living with the help of the medications and he denies any side effects of the medications.” (Defs.’ 56.1 ¶¶ 96-97; Bell Decl. 943.) Dr. Dobrow also noted that DeCesare walked with a limp and that his examination of DeCesare’s lumbar spine did not change from his previous examination. (Defs.’ 56.1 ¶ 98; Bell Decl. 942.)

Aetna referred DeCesare’s case to Nurse Diane Studenroth for a clinical review. (Defs.’ 56.1 ¶ 99; Bell Decl. 625-27.) Studenroth reviewed DeCesare’s medical records, including several MRI and X-ray reports, specifically an MRI of his lumbar spine conducted on March 30, 2009, an MRI of his right knee conducted on May 17, 2010, and X-rays of his lumbar spine on May 21, 2009 and September 29, 2009. (Defs.’ 56.1 ¶¶ 101-03; Bell Decl. 625, 849-50, 917-18.) Based on her review, Studenroth concluded that it was unclear if the clinical information supported an ongoing functional impairment of a severity that would preclude DeCesare from performing work at medium and/or lesser levels of physical demand, due to a lack of sufficiently documented clinical, quantifiable measurements. (Defs.’ 56.1 ¶ 104; Bell Decl. 627.) Accordingly, Studenroth recommended that Aetna retain an independent peer review physician board certified in occupational medicine to review DeCesare’s records and provide an opinion concerning DeCesare’s level'of functionality and status to return to work. (Defs.’ 56.1 ¶ 105; Bell Decl. 627.)

On March 4, 2011, Wiers contacted DeCesare via telephone to conduct an updated claimant interview. (Defs.’ 56.1 ¶ 106; Bell Decl. 627-28.) During the interview, DeCesare complained of continuing severe pain in his back, as well as depression because he could not do anything. (Defs.’ 56.1 ¶ 107; Bell Decl. 628.) He stated that he was not treating or taking any medications for his depression. (Defs.’ 56.1 ¶ 108; Bell Decl. 628.) He also reported that he had issues with his knee and was discussing a possible knee replacement with his treating physician. (Defs.’ 56.1 ¶ 109; Bell Decl. 628.) DeCesare also informed Wiers that he was not considering any further surgery on his back and was not attending PT. (Defs.’ 56.1 ¶ 110; Bell Decl. 628.) He stated he did not think he could return to work because he could only sit for ten minutes at a time before he had to lie down. (Defs.’ 56.1 ¶ 111; Bell Decl. 628.) On March 15, 2011, Weirs received and reviewed PT records from St. Anthony’s regarding DeCesare’s PT sessions from January 19, 2010 through June 22, 2010. (Defs.’ 56.1 ¶ 113; Bell Decl. 634, 909-13.) Specifically, DeCesare attended PT on January 19 and 21, 2010, February 18, 2010, March 9, 16, 18, 23, and 25, 2010, April 1, 6, 15, and 20, 2010, and May 7, 2010. (Defs.’ 56.1 ¶ 114; Bell Decl. 909-13.) At the PT session on January 19, 2010, DeCesare reported that he experienced constant back pain and his physical therapist noted PT was limited due to his bilateral arthritic knees, which resulted in a decreased ability to use his legs for bending, but that he tolerated PT well without increased pain. (Defs.’ 56.1 ¶ 115; Bell Decl.' 909.) During his PT session on January 21, 2010, DeCesare reported that he was experiencing constant back pain, but demonstrated increased strength and reported decreased pain. (Defs.’ 56.1 ¶ 116; Bell Decl. 909.) At his PT session on March 16, 2010, DeCesare reported having trouble each day doing anything more than sitting or regular activities, but his physical therapist noted increased strength. (Defs.’ 56.1 ¶ 117; Bell Decl. 909.) At his PT session on March 23, 2010, DeCesare reported that he was not feeling very well and while he performed therapeutic exercises well, he complained of discomfort. (Defs.’ 56.1 ¶ 119; Bell Decl. 911.) At the PT session on March 25, 2010, DeCesare reported that stretching his back felt good and reported decreased pain after the session. (Defs.’ 56.1 ¶ 120; Bell Decl. 911.) During his PT session on April 1, 2010, DeCesare reported feeling better after receiving treatment, but that he was tired. (Defs.’ 56.1 ¶ 121; Bell Decl. 911.) At his PT session on April 5, 2010, DeCesare reported that he still felt spasms in his lower back and “SI” joint area. (Defs.’ 56.1 ¶ 122; Bell Decl. 911.) During his PT session on April 15, 2010, DeCesare reported that his back was hurting and that he had experienced a setback, and on April 20, 2010 DeCesare stated that he had been self-medicating due to constant pain, but also demonstrated increase range of motion in his lumbar spine and increased strength. (Defs.’ 56.1 ¶¶ 123-24; Bell Decl. 913.) During his PT session on May 7, 2010, DeCesare complained of pain at the level of six out of ten in his lower back, with sharp pain in his left side. (Defs.’ 56.1 ¶ 125; Bell Decl. 913.)

Aetna received Dr. Hoverman’s handwritten office visit notes from May 12, 2010 through February 9, 2011. (Defs.’ 56.1 ¶ 126; Bell Decl. 636.) In his office visit note dated May 12, 2010, Dr. Hover-man reported that DeCesare informed him that while walking down the stairs, his knee popped causing tenderness and the inability to fully straighten his knee, and thus, both of his knees were “bone on bone.” (Defs.’ 56.1 ¶ 127; Bell Decl. 1454.) During his visit to Dr. Hoverman’s office on July 13, 2010, DeCesare reported that he had experienced increased right knee pain since it gave way. (Defs.’ 56.1 ¶ 128; Bell Decl. 1387.) In his office note dated November 3, 2010, Dr. Hoverman reported that DeCesare’s recent spine X-ray demonstrated severe changes at levels in “Til to sacrum,” that fusion was noted, that DeCesare was experiencing bilateral knee crepitus, and that Dr. Hoverman considered prescribing cortisone injections. (Defs.’ 56.1 ¶ 129; Bell Decl. 1386.) In his office visit note dated December 13, 2010. Dr. Hoverman stated that DeCesare complained of knee pain after his prior injections. (Defs.’ 56.1 ¶ 130; Bell Decl. 1385.) Dr. Hoverman administered an injection and diagnosed DeCesare with spinal steno-sis, which he stated did not improve with surgery. (Defs.’ 561. ¶ 130; Bell Decl. 1385.) In his office visit note dated January 7, 2011, Dr. Hoverman stated that DeCesare complained of ongoing back pain and referenced his most recent CT of his lumbar spine, which demonstrated “stable posterior spinal fusion, [and] no evidence of fracture/spondylolisthesis.” (Defs.’ 56.1 ¶ 131; Bell Decl. 1384.) On January 14, 2011, Dr. Hoverman wrote DeCesare a prescription for Oxycodone, and on January 26, 2011 he wrote DeCesare a prescription for Diazepam. (Defs.’ 56.1 ¶ 132; Bell Decl. 1383.) According to his medical records, on January 31, 2011, Dr. Hover-man received a telephone call from DeCesare’s health insurance company advising him of DeCesare’s controlled substance overuse because it was documented that he was currently prescribed Opana XR, Opana, and Oxycodone from Dr. Dobrow and Diazepam and Oxycodone from Dr. Hoverman. (Defs.’ 56.1 ¶ 133; Bell Decl. 1383.) Dr. Hoverman indicated that he would discuss this issue with DeCesare at his next scheduled office visit. (Defs.’ 56.1 ¶ 133; Bell Decl. 1383.)

Wiers referred DeCesare’s updated medical records to Studenroth for a further clinical review. (Defs.’ 56.1 ¶ 135; Bell Decl. 636.) After reviewing the medical records, Studenroth concluded that there were insufficient quantifiable, clinical findings to support DeCesare’s claimed inability to work. (Defs.’ 56.1 ¶ 145; Bell Decl. 638.) Studenroth also stated that DeCesare’s medical records demonstrated that he was able to perform activities of daily living without incident and determined that an independent medical record peer review of DeCesare’s medical records was warranted to establish functionality. (Defs.’ 56.1 ¶¶ 146-47; Bell Decl. 638.)

On April 29, 2011, Aetna received Dr. Dobrow’s updated medical records, including his most recent office visit note dated March 14, 2011. (Defs.’ 56.1 ¶ 138; Bell Decl. 648, 950.) In the note, Dr. Dobrow stated that DeCesare was following up for pain management, he was currently on Opana — which allowed him to continue his activities of daily living without experiencing side effects — DeCesare reported lumbar pain at a level of eight out of ten, and the physical examination revealed that DeCesare was alert, oriented, in no acute distress, and his lumbar spine examination had not changed since his previous examination. (Defs.’ 56.1 ¶¶ 139-41; Bell Decl. 950.) Dr. Dobrow’s impression included lumbar disc herniation, lumbar facet joint syndrome, lumbar radiculopathy, insomnia, chrome pain syndrome, Hepatitis C (in remission), and thrombocytopenia. (Defs.’ 56.1 ¶ 142; Bell Decl. 951.) Dr. Dobrow indicated that DeCesare was to continue taking his prescription medication and visit again in four weeks. (Defs.’ 56.1 ¶ 143; Bell Decl. 951.) Following Wiers’ review of these medical records, she forwarded them to Studenroth. (Defs.’ 56.1 ¶ 144; Bell Decl. 652.)

After reviewing the records from Dr. Dobrow, Studenroth concluded that it remained unclear if the clinical information supported a functional impairment that would preclude even sedentary physical work activities due to a musculoskeletal condition. (Defs.’ 56.1 ¶ 136; Bell Decl. 650.) Studenroth stated that it would be beneficial to review DeCesare’s medical records from his treating pain management specialist to assist her with establishing his functionality and ability to return to work prior to obtaining a peer review and, therefore, recommended that Wiers order DeCesare’s clinical records from June 2010 through the present day, as well as a current Capabilities and Limitations Worksheet from Dr. Dobrow. (Defs.’ 56.1 ¶ 137; Bell Decl. 650.)

On June 3, 2011, Wiers requested an independent medical record peer review by a physician specializing in Occupational Medicine, and accordingly Aetna assigned peer reviewer Robert Swotinsky, M.D. (“Dr. Swotinsky”), Board Certified in Occupational Medicine to evaluate DeCesare’s eligibility for continued LTD benefits. (Defs.’ 56.1 ¶ 148; Bell Decl. 654-57, 494-502.) Dr. Swotinsky reviewed the medical records and attempted to contact DeCesare’s treating physicians. (Defs.’ 56.1 ¶ 149; Bell Decl. 1087-89.) In his report dated June 17, 2011, Dr. Swotinsky stated that after three unsuccessful attempts, he was unable to speak with Dr. Dobrow. (Defs.’ 56.1 ¶150; Bell Decl. 1088, 1093.) Dr. Swotinsky spoke with Dr. Wang, who reported that he and his partner, Dr. Hoverman, had been treating DeCesare for several years and expressed concern about the large amount of narcotics he was receiving, as well as problems with DeCesare receiving narcotics from multiple physicians. (Defs.’ 56.1 ¶ 151; Bell Decl. 1088.) Dr. Wang initially indicated that DeCesare could perform in a sedentary job, but then said he was unsure how long DeCesare could sit due to his badly controlled diabetes, Hepatitis C, and depression. (Defs.’ 56.1 ¶ 152; Bell Decl. 1089.) In his report, Dr. Swotinsky noted that DeCesare had several medical conditions, specifically low back pain, opioid dependence, Hepatitis C, diabetes, and left knee meniscal tears. (Defs.’ 56.1 ¶ 153; Bell Decl. 1089-91.) Dr. Swotinsky noted that DeCesare had “spinal stenosis that limit[ed] him to some extent.” (Defs.’ 56.1 ¶ 154; Bell Decl. 1090.) Dr. Swotinsky opined that DeCesare’s spinal stenosis was not completely disabling “per the SSA’s criteria,” and that documentation from Dr. Dobrow state[d] that DeCesare was able to perform activities of daily living, if not his job, and Dr. Wang said the claimant drove. (Defs.’ 56.1 ¶ 155; Bell Decl. 1090-91.) Accordingly, Dr. Swotinsky explained that “[bjeeause [DeCesare’s] back condition d[id] not meet [the] criteria for complete disability and information from the treating providers indicated] that he [was] reasonably active, [his] opinion [was] the documentation and peer-to-peer discussion established that [DeCesare was] at least [at] a sedentary work capacity.” (Defs.’ 56.1 ¶ 155; Bell Decl. 1091.) Dr. Swotinsky opined that DeCesare’s opioid dependence would preclude him from working in certain safety-sensitive jobs and from working where opioid narcotics are readily available, but did not limit him from working as a marketing executive. (Defs.’ 56.1 ¶ 156; Bell Decl. 1091.) Moreover, Dr. Swotinsky concluded that DeCesare’s Hepatitis C was in remission and would pose no impairment, the medical documentation indicated no complications relating to DeCesare’s diabetes and would not correspond to any functional impairment, and while the nature of his knee impairment was unclear, it would “not prevent him from doing sit-down work” because “he appeared] functional and there [was] no orthopedic notes about his knees or other specific and comprehensive findings.” (Defs.’ 56.1 ¶¶ 157-59; Bell Decl. 1091-92.) Dr. Swotinsky also noted that with respect to DeCesare’s depression, Dr. Wang had stated that DeCesare had started taking Cymbalta in May 2011 and that “[t]here [were] no medical records describing evaluation and treatment of [DeCesare’s] depression and thus the documentation [had] insufficient information to corroborate the diagnosis and its related limitations.” (Defs.’ 56.1 ¶¶ 160-61; Bell Decl. 1092.) In sum, Dr. Swotinsky stated that:

The claimant’s spinal stenosis is limiting, perhaps limiting to no more than sedentary activity. This would preclude him from doing his usual job, which has medium physical demand requirements. The claimant’s knee condition is likewise limiting, but ... would not preclude him from sedentary work. The claimant is opioid dependent, but this should not impact his work capacity. His diabetes likewise does not affect is work capacity.

(Defs.’ 56.1 ¶ 162; Bell Decl. 1092.) Dr. Swotinsky also noted that:

There is no documentation of medication-related impairment. Dr. Do-brow’s notes repeatedly state the claimant is not impaired from his medicines. The claimant drives, which suggests he feels himself capable of this cognitively demanding task. In general, with long-term use of opioid narcotics, patients become acclimated to potential side effects. Such use is rarely disqualifying from employment and there is no evidence indicating that it should be.

(Defs.’ 56.1 ¶ 165; Bell Decl. 1093.)

Studenroth reviewed DeCesare’s updated clinical records and Dr. Swotinsky’s report and stated that the report found DeCesare to be functional at the sedentary physical demand level. (Defs.’ 56.1 ¶ 166; Bell Decl. 669.) Studenroth referred DeCesare’s claim back to Wiers with the recommendation that she send Dr. Swotinsky’s report to DeCesare’s treating physicians and request comment. (Defs.’ 56.1 ¶ 168; Bell Decl. 669.)

Aetna requested that Dr. Wang and Dr. Dobrow indicate whether they agreed that DeCesare was functionally able to work at a sedentary job, and if they disagreed to provide a clinical narrative and any current clinical findings to support their respective opinions. (Defs.’ 56.1 ¶ 169; Bell Decl. 463, 478.) In his response, Dr. Wang indicated that he did not agree DeCesare was capable of performing sedentary work on a full time basis, and on July 5, 2011 he completed a Capabilities and Limitations Worksheet, in which he claimed DeCesare was capable of working zero hours per day, but did not submit any clinical findings to support his opinions. (Defs.’ 56.1 ¶¶ 170-72; Bell Decl. 1239, 1241.)

On July 13, 2011, Wiers spoke with DeCesare for a status update in light of the Test Change Date. (Defs.’ 56.1 ¶ 173; Bell Decl. 677-679.) Wiers informed DeCesare that based on his review of the clinical evidence in his medical records, Dr. Swotinsky had opined that DeCesare could perform full-time sedentary work. (Defs.’ 56.1 ¶ 174; Bell Decl. 679.) DeCesare responded that he could not perform sedentary work due to his pain, did not believe he could work for that long, and stated that during any given day he is often forced to lie down and sometimes the pain stops him from doing anything. (Defs.’ 56.1 ¶¶ 176-77; Bell Decl. 679.) Wiers also informed DeCesare that she sent a copy of Dr. Swotinsky’s report to Dr. Do-brow and Dr. Wang, she was still waiting for Dr. Dobrow’s response, and while Dr. Wang opined that DeCesare could not perform sedentary work, he did not produce any clinical evidence to support his opinion. (Defs.’ 56.1 ¶¶ 175, 178; Bell Decl. 679.)

By letter dated July 14, 2011, Dr. Wang further advised that:

DeCesare cannot sit or stand for any length of time without having to change positions or lie down to relieve the pain. The condition varies but remains consistent. Mr. DeCesare is not able to return to work in either his past occupation or any other occupation sitting or standing given this condition. He is totally disabled physically.

(Defs.’ 56.1 ¶ 179; Bell Decl. 1100.) Dr. Wang did not, however, provide any clinical proof to support his opinion. (Defs.’ 56.1 ¶ 180.) On July 19, 2011, DeCesare contacted Aetna and indicated that Dr. Wang informed him that he would be submitting clinical proof to support his opinions. (Defs.’ 56.1 ¶ 181; Bell Decl. 682.) By letter dated July 25, 2011 Dr. Dobrow responded to Aetna’s request by stating that DeCesare was not able to return to work and that he “ha[d] difficulty sitting and standing for long periods of time due to his pain,” but did not submit any clinical findings to support his opinions. (Defs.’ 56.1 ¶¶ 182-83; Bell Decl. 1095.)

On August 1, 2011, Wiers stated that she discussed DeCesare’s case with her team leader and a doctor from Aetna and they determined that an Independent Medical Examination (“IME”) was warranted to determine DeCesare’s then-current level of functional capacity. (Defs.’ 56.1 ¶ 184; Bell Decl. 694-95.) In August 2011, Wiers requested that UNIVAL, Inc. retain a physician specializing in Occupational Medicine to perform an IME on DeCesare. (Defs.’ 56.1 ¶ 183; Bell Decl. 695.) On September 29, 2011, Dr. Karen Garvey, MD, MPH, (“Dr. Garvey”) a physician who is Board Certified in Occupational Medicine, examined DeCesare at Cornerstone Medical and Wellness, LLC in Millburn, New Jersey. (Defs.’ 56.1 ¶ 186; Bell Decl. 814.) Dr. Garvey also reviewed DeCesare’s medical records and obtained additional history and information from DeCesare prior to conducting her examination and issuing her report. (Defs.’ 56.1 ¶ 187; Bell Decl. 814-16.) According to Dr. Garvey in her report dated October 6, 2011:

Mr. DeCesare lists his daily activity as the following: he is able to maintain his own daily hygiene with bathing and dressing himself. He requires his wife to help him with putting on his shoes, for which he has switched to loafers and slip on shoes instead of laced shoes. He states that after breakfast he sits at his computer only for intervals of 15 minutes at a time without standing. He then goes to the living room and sits on the couch to watch television. He can walk behind his wife who uses a push mower to cut the lawn for short periods. He can drive short distances, usually about 15 minutes. His prior hobbies included playing the guitar both electric and regular and drums. He is no longer able to play the drums or the electric guitar, but can play the regular guitar, which he can only do for 15 minutes due to the back pain. Based on Mr. DeCesare’s amount of his activity of daily living his wife does all the maintenance of the dog, house[,] and yard activities. He mentioned that he is on the computer several times during the conversation. When I mentioned to him that he frequently mentioned being on the computer, and inquired if he was employed, he stated [he was] only on the computer to keep updated, to get emails[,] and to listen to the National Public Broadcasting. He state[d] that he occasionally-drives locally.

(Defs.’ 56.1 ¶ 188; Bell Decl. 816-17.)

Dr. Garvey also stated that:

It is my clinical impression that Mr. DeCesare has a degree of back pain and symptom magnification as reported on the pain disability questionnaire. The extent of the objective medical examination reveals no evidence of muscle strength or radicular deficiencies in the sensory distributions of the lower extremity L1-L5 on either the right or left leg. The increased sensation to pin prick L1-L2 is inconsistent with the distribution of surgery L3-L4 and L4-L5. The objective findings of fullness on the left paraspinal area are more consistent with local muscular strain and are without radicular symptoms or physical limitations on the examination. Mr. DeCesare was able to sit for a consistent 30 minutes, stand and step up to the exam table without difficulty. Based on my medical evaluation it is my clinical judgment that Mr. DeCesare is capable of working a sedentary job.

(Defs.’ 56.1 ¶ 189; Bell Decl. 818.) Dr. Garvey further noted that “there is a large subjective component to the medical documentation” and that DeCesare’s “use of the back brace support and ambulation with the cane are self-directed and physical examination findings support no evidence of back or leg weakness or instability requiring the medical directed use of assistive devices.” (Defs.’ 56.1 ¶ 190; Bell Decl. 818.) She also advised that “the extent of the dependence of narcotic medications would preclude prolonged sitting throughout a normal 8-hour workday” and recommended “a workday of 4 hours per day with a 10-15 minute break after sitting 1.5 to 2 hours” as a “permanent accommodation.” (Defs.’ 56.1 ¶ 191; Bell Decl. 819.) Moreover, she opined that “although Mr. DeCesare may have back pain there is no clinical evidence from the review of medical records or [her] clinical evaluation that preclude[d] him from performing work in a sedentary position” and that subjective complaints and the self-assessed severe disability score of 130 on the pain disability questionnaire were inconsistent with the extent of function during the medical evaluation and in her opinion there was “symptom magnification.” (Defs.’ 56.1 ¶¶ 192-93; Bell Decl. 819.) In the Employment and Impairment Summary Form completed on September 29, 2011, Dr. Garvey indicated that DeCesare would be able to return to work on November 1, 2011. (Defs.’ 56.1 ¶ 194.)

On August 3, 2011, Wiers stated that DeCesare’s claim was being referred to Aetna’s CCIU to conduct surveillance on DeCesare to determine whether his reported functional restrictions/limitations were supported because: (1) DeCesare’s treating physicians failed to provide any clinical proof to support their disagreement with Dr. Swotinsky’s opinion that DeCesare’s medical records did not demonstrate that he was unable to perform sedentary work; and (2) Dr. Dobrow previously stated that DeCesare’s medical condition did not interfere with his ability to work. (Defs.’ 56.1 ¶ 195; Bell Decl. 697-94.) On August 4, 2011, Wiers referred DeCesare’s claim file back to Kili in Aetna’s CCIU and Kili requested that Research Consultants Group, Inc. (“RCG”) conduct three days of surveillance on DeCesare beginning on September 19, 2011. (Defs.’ 56.1 ¶¶ 196-97; Bell Decl. 704-05, 1192-1202.) After acquiring approximately 1 hour and 35 seconds of video footage of DeCesare outside of his residence, RCG advised that “we observed the claimant walking without any ambulatory aides to help him in his activities on the first day” and “[o]n the second day we observed the claimant using a cane and back brace.” (Defs.’ 56.1 ¶¶ 199-200; Bell Decl. 1192.) The second day of surveillance was conducted on DeCesare’s scheduled IME. (Defs.’ 56.1 ¶201; Bell Decl. 1192, 1199-1201.) On the third day of surveillance, RCG reported that DeCesare “did not make an appearance outside of his residence,” and a “discreet inquiry was utilized[, allowing RCG] to confirm his presence inside the home[, and thus they] remained on site.” (Defs.’ 56.1 ¶¶ 202-03; Bell Decl. 1192.) In its report, RCG noted that it had observed DeCesare engaging in various activities, including, among other things, driving less than ten minutes to various locations, stepping out of his house to the porch, sitting on a chair while smoking a cigarette, walking across the lawn and then entering the art studio on his property after walking up the stairs to the second floor, pruning a bush in front of his residence, pulling an object tangled in the branches, picking up a large decorative wagon wheel and carrying it with his left arm to the fence at the side of the property, and existing the house carrying a cane that he used to help him walk. (Defs.’ 56.1 ¶ 204; Bell Decl. 1194-99.) Following a review of the surveillance report, Kili stated that the activity observed was inconsistent with DeCesare’s claimed functional restrictions/limitations, and that while DeCesare was observed using his cane and back brace on the day of his IME, he appeared to move with no apparent difficulties on the day before the IME. (Defs.’ 56.1 ¶¶ 205-06.)

Kili sent Dr. Garvey the surveillance footage for her review and comment, and Dr. Garvey issued a supplemental report dated November 8, 2011 after reviewing RCG’s materials. (Defs.’ 56.1 ¶¶ 207-08; Bell Decl. 728, 821-23.) In the supplemental report, Dr. Garvey described instances in which DeCesare was observed on the surveillance video walking without difficulty and without the use of a back support belt or other assistive device throughout the day on September 28, 2011, and was engaging in bending and lifting actions on several occasions. (Defs.’ 56.1 ¶¶ 209-10; Bell Decl. 821-22.) She also commented that there was a contrast in DeCesare’s gait observed on September 28, 2011, the day of the IME, and the preceding day. (Defs.’ 56.1 211; Bell Decl. 822.) Dr. Garvey noted that “[f|rom [her] initial report [she] concluded that there was a degree of symptom magnification, which [was] confirmed with these new observed findings on the surveillance information and an absence of physical limitation or impairment.” (Defs.’56.1 ¶ 212; Bell Decl. 823.) She concluded that:

[Although DeCesare may have symptoms of back pain as evidenced by his holding his left back on two occasions, it appears that there is no impairment of his ability to perform activities such as walking, sitting, bending, twisting, reaching, pushing, pulling, grasping[,] or lifting [and thus] there is no indication for the permanent part-work restriction previously stated in [her] October 8, 2011 report [but rather, she concluded] that ... DeCesare [was] able to perform normal work activities, full duty, for an 8-hour workday with no restrictions.

(Defs.’ 56.1 ¶ 213; Bell Decl. 823.)

In a letter dated October 20, 2011, Aetna advised DeCesare that it was continuing to evaluate his “ability to perform another occupation,” to determine his continued eligibility for benefits, and that his monthly benefits would continue until Aetna’s investigations were concluded. (Defs.’ 56.1 ¶ 214; Bell Decl. 503.)

By letter dated November 1, 2011, DeCesare’s counsel, Barbara Matarazzo (“Matarazzo”) provided additional medical records for Aetna’s review and consideration, specifically a letter from Dr. Wang dated October 31, 2011 and a letter from Dr. Dobrow, dated October 28, 2011, which Matarazzo claimed “outline[d] the restrictions and limitations that render Mr. DeCesare totally disabled and unable to perform the basic function of daily living due to pain.” (Defs.’ 56.1 ¶¶ 216-17; Bell Decl. 1209-1212.) In Dr. Wang’s letter, he opined that DeCesare was “totally disabled” and recounted DeCesare’s clinical history and symptoms to substantiate his opinion. (Defs.’ 56.1 ¶ 218; Bell Decl. 1210-11.) Specifically, Dr. Wang stated that:

The chronic pain remains the largest stumbling block for him even now. He can no longer put on clothes in the morning with[]out assistance from his wife. Once dressed it takes 20 minutes to % of an hour to begin to feel relief after taking any pain medication. After the medication begins to take effect he is still limited to only being able to sit for very short periods of time before he needs to stand and stretch out his back and assume another position.

(Defs.’ 56.1 ¶ 219; Bell Decl. 1210.) In Dr. Dobrow’s letter, he opined that based on DeCesare’s subjective complaints of pain, he was “unable to work due to the injury in his lumbar spine.” (Defs.’ 56.1 ¶ 220; Bell Decl. 1212.) Neither doctor provided any clinical evidence or diagnostic tests to support his opinion. (Defs.’ 56.1 ¶ 221.) On November 29, 2011, Aetna forwarded Dr. Garvey’s supplemental report and the surveillance footage to Dr. Wang and Dr. Dobrow for review and comment. (Defs.’ 56.1 ¶ 222; Bell Decl. 737-38.)

On or about December 23, 2011, Lori karickhoff (“Karickhoff’) performed an “Own Occupation Comparison,” and concluded that DeCesare’s occupation of Creative Director of Marketing in the economy was considered a light physical demand job, and that DeCesare had the functional physical capacity to perform his own occupation. (Defs.’ 56.1 ¶ 223; Bell Decl. 741.)

Aetna did not receive any response from Dr. Wang or Dr. Dobrow regarding Dr. Garvey’s supplemental IME report and the surveillance footage. (Defs.’ 56.1 ¶ 224.) Kili determined that DeCesare’s claim for continuing LTD benefits should be terminated effective January 9, 2012, of which her supervisor approved. (Id.; Bell Decl. 746.) By letter dated January 9, 2012, Aetna advised DeCesare that his claim for continuing LTD benefits would be terminated that day (the “Denial”). (Defs.’ 56.1 ¶ 225; Bell Decl. 1978.) The letter explained that “[t]he medical documentation in [DeCesare’s] claim file does not support his inability to perform work at his own occupation as an AVP Creative Director of Marketing on a full time basis in a light physical demand capaeity[,]” and detailed the information Aetna reviewed in making its determination, which included information provided by DeCesare’s physicians. (Defs.’ 56.1 ¶¶ 227-28; Bell Decl. 1978-84.) Aetna also informed DeCesare that the fact that he was receiving SSDI benefits was given “little weight in [its] determination of whether he [was] eligible for LTD benefits,” because of Aetna’s conclusion that DeCesare was “no longer disabled based on the Plan’s definition of Totally Disabled.” (Defs.’56.1 ¶ 229; Bell Decl. 1985.) The letter advised DeCesare of his appeal rights and invited him to submit “medical information which supported] restrictions and limitations which would preclude [him] from performing any occupation as’ required by the policy.” (Defs.’ 56.1 ¶ 230; Bell Decl. 1985.) Moreover, the Denial stated that DeCesare must mail or deliver a written request for review within 180 days of receipt of the letter. (Defs.’56.1 ¶ 231; Bell Decl. 1985.)

Ip. DeCesare’s Administrative Appeal

By letter dated May 3, 2012, DeCesare, through his counsel, appealed Aetna’s initial adverse benefit determination. (Defs.’ 56.1 ¶ 232; Bell Decl. 1078-1085.) In the appeal letter, DeCesare objected to the Denial on the grounds that it was “inconceivable that a denial would be made based upon a 40 minute one visit analysis with [Aetna’s] IME, and a 100 minute video, as opposed to doctors who are intimately familiar with Mr. DeCesare for a combined 18 years.” (Defs.’ 56.1 ¶ 233; Bell Decl. 1078.) Moreover, DeCesare listed several examples from the video surveillance to show that he could not perform the tasks necessary to work 8-hour days. (Defs.’ 56.1 ¶ 238; Bell Decl. 1082-84.) DeCesare disputed that his job was a “light physical demand” job, and argued that Dr. Swotinsky’s conclusion that DeCesare was “at leas[t] [at] sedentary work capacity,” supported DeCesare’s claim that he could not perform his own occupation. (Defs.’ 56.1 ¶¶ 234-36; Bell Decl. 1079-80.) Moreover, DeCesare contended that his disability claim should be evaluated based on the “combination of [his] back condition, the loss of strength in both [of his] knees, the torn meniscus, the degenerative end plate changes, the stenosis, as well as [his] dependence on opioid narcotics medications in an attempt to control the pain.” (Defs.’ 56.1 ¶ 237; Bell Decl. 1080-81.)

In support of his appeal, DeCesare enclosed additional letters from Dr. Wang and Dr. Dobrow. (Defs.’ 56.1 ¶ 239; Bell Decl. 1127-31.) In a letter dated April 2, 2012, Dr. Wang stated that “[a]fter a close and thorough review of [the] surveillance video and subsequent doctor findings, I find that both you and your doctors [sic] findings show no evidence in the video that would indicate to me that Mr. DeCesare has the capability to return to work or [perform] any job” and that he “totally disagree[d] with [Aetna’s] determination based solely on the evidence provided.” (Defs.’56.1 ¶ 240; Bell Decl. 1127.) In his letter dated April 27, 2012, Dr. Dobrow concluded that DeCesare was totally disabled and could not perform the necessary functions to work and disputed the conclusions reached by Dr. Garvey, stating that he believed DeCesare was not capable of performing his duties at work due to his pain, his job was not a sedentary job, and there were numerous activities in his job that he could not perform. (Defs.’ 56.1 ¶¶ 241, 244; Bell Decl. 1129, 1131.) Dr. Dobrow further stated that that DeCesare “require[d] opioid medications which [a]ffect[] his ability to concentrate and perform work related activities,” and pointed' to the surveillance video to illustrate that DeCesare had pain and difficulty performing certain activities. (Defs.’ 56.1 ¶¶ 242-43; Bell Decl. 1129-30.)

After reviewing DeCesare’s appeal, Aetna concluded that it would refer the claim for a new independent medical record peer review. (Defs.’ 56.1 ¶ 245; Bell Decl. 759-60.) By letter dated May 7, 2012, Aetna advised DeCesare’s lawyer that it would issue a decision on the appeal within 45 days of the appeal request. (Defs.’ 56.1 ¶ 246; Bell Decl. 508.) In a subsequent letter to DeCesare’s counsel dated June 15, 2012, Aetna indicated that it had referred DeCesare’s medical records to an independent physician peer review consultant for evaluation and was awaiting his medical opinion and, accordingly, required a thirty-day extension to complete the review of the appeal. (Defs.’ 56.1 ¶¶ 247-48; Bell Decl. 509.)

On or about June 18, 2012, Aetna Senior Technical Specialist Julia Bell (“Bell”) sought a peer review of DeCesare’s case from a physician specializing in pain management. (Defs.’ 56.1 ¶ 249; Bell Decl. 767, 804-09.) Third-party independent medical record peer review vendor MES Solutions retained Dr. William Lichtenfeld, M.D., (“Dr. Lichtenfeld”) Board Certified in Physical Medicine & Rehabilitation, with a Subspecialty Certificate in Pain Medicine, to perform the review. (Defs.’ 56.1 ¶ 250; Bell Decl. 804-09.) Dr. Lichtenfeld reviewed DeCesare’s clinical records, spoke to Dr. Wang, and unsuccessfully attempted on multiple occasions to speak with Dr. Dobrow. (Defs.’ 56.1 ¶¶ 251-52; Bell Decl. 804-05, 807.) During the conversation, Dr. Wang stated that DeCesare was limited in “his ability to bend, walk, stand, or sit for greater than [two hours] total per day[,]” he could not work for eight hours per day, and he was totally disabled. (Defs.’ 56.1 ¶ 253; Bell Decl. 807.) Dr. Lichtenfeld reported that the notes from DeCesare’s physicians “fail[ed] to document any significant physical examination findings at all[, including] range of motion deficits, weakness, decreased sensation, or deep tendon reflexes.” (Defs.’ 56.1 ¶ 254; Bell Decl. 807.) Dr. Lichtenfeld opined that “[b]ased on the provided documentation, the physical demand level of work [DeCesare could] likely perform [was] Medium Level work from 1/10/12 through 6/30/12” and that “the restrictions and/or limitations imposed by the treating physicians [were] not appropriate” because they did not include any significant physical examination findings. (Defs.’ 56.1 ¶¶ 255-56; Bell Deck 807.) Accordingly, Dr. Lichtenfeld concluded that the documentation failed to support functional impairment for the entire time frame DeCesare had received benefits. (Defs.’ 56.1 ¶ 257; Bell Deck 807-08.)

By letters dated August 1, 2012 and August 3, 2012, Aetna advised DeCesare that his appeal was suspended until August 23, 2012 to allow for a discussion between Dr. Dobrow and Dr. Lichtenfeld. (Defs.’ 56.1 ¶¶ 261-62; Bell Deck 515-16.) Despite numerous attempts, Dr. Lichtenfeld never spoke with Dr. Dobrow. (Defs.’ 5