ERISA Long Term Disability Case Citations and references

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Court Rips Apart Fibromyalgia Review by Jeffrey Lieberman, Rheumatologist Hired by MetLife

Here is an interesting fibromyalgia case. The court exposes the connection between MetLife and Network Medical Review. The Court also rips apar the 'review' done by Dr. Jeffrey Lieberman, a rheumatologist hired by MetLife

Sandra RUDZINSKI, Plaintiff,
v.
METROPOLITAN LIFE INSURANCE COMPANY, Defendant.
No. 05 C 0474.
Sept. 14, 2007.

Mark D. Debofsky, Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff.

Steven P. Mandell, Brendan J. Healey, Keith E. Allen, Natalie Anne Harris, Mandell, Menkes LLC, Chicago, IL, Amy K. Posner, Metlife Group, Inc., Long Island City, NY, for Defendant.


MEMORANDUM OPINION AND ORDER


ARLANDER KEYS, United States Magistrate Judge.


On June 17, 2003, Plaintiff filed a claim for LTD benefits under the group policy. Plaintiff claimed that she was entitled ho benefits equal to 60% of her monthly salary ($2,334.99/month), commencing after a 180 day elimination period, following the onset of disability on April 2, 2002. MET 779. MetLife denied the claim on July 9, 2003. MetLife's case management specialist, Christine Graf, stated that, the sole reason that the claim was being denied was because Plaintiff purportedly did not meet the 180 days of continuous disability for the elimination period; Ms. Graf noted that Plaintiff had received STD for a total of only twelve weeks-far short, of the 180-day requirement. MET 81. Notably, Ms. Graf did not explain why receiving only 12 weeks of STD was dispositive of Plaintiff's disability status.

Plaintiff appealed MetLife's denial, supplementing her initial submission with correspondence with Sharp, records of doctor appointments, reports of her condition, and medical evidence. MET 85-92. Met Life denied Plaintiff's claim a second time on January 14, 2004. MET 192-194, Rosemary Harmon, a MetLife Procedure Analyst, explained that Plaintiff neither satisfied the 180-day elimination period nor qualified as an active, eligible Sharp employee, under the terms of the Plan. Met 192-194. MetLife did not reference any of Plaintiff's medical evidence FN3 in denying Plaintiff's application for benefits under the Plan. MET 920-922.

   

MetLife hired Dr. Jeffrey Lieberman, a rheumatologist, to review Plaintiff's medical file.

Dr. Lieberman is affiliated with Network Medical Review, an organization that receives over one million dollars in business annually from MetLife.


C. MetLife's Decision to Deny Benefits Was Arbitrary & Capricious


After a thorough review of the Record, the Court concludes that MetLife failed to conduct a full and fair review of Plaintiff's claim. From the outset, MetLife seemed predisposed to denying Plaintiff's claim in the most expeditious manner possible. Initially, MetLife shirked its ERISA obligations by having non-medical personnel curtly determine that Plaintiff did not. qualify for benefits under the terms of the Plan, without any meaningful review of the medical evidence submitted by Plaintiff. When confronted with its lapse by Plaintiff's counsel, MetLife begrudgingly agreed to another review, this time with the assistance of Dr. Lieberman.

In rejecting Plaintiff's claim that she was disabled, Dr. Lieberman mentioned, but did not discuss, dispute, or distinguish, the reports by the numerous physicians that supported Plaintiff's claim that, she was unable to work. Instead of analyzing this evidence in forming his conclusions, Dr. Lieberman relied upon: 1) impermissible generalizations about the capabilities of the majority of fibromyalgia sufferers; 2) the absence of objective tests to validate the severity of Plaintiff's fibromyalgia, despite the fact that such tests do not exist; and 3) the most negative inference from Dr. Dzamashvili's purported statement that Plaintiff was not capable of more than light work.

Similarly, in denying Plaintiff's claim, MetLife rejected, without discussion, numerous competent records from physicians who actually examined Plaintiff, and, apparently, ignored entirely the SSA's determination that Plaintiff was disabled and the witness statements describing Plaintiff's steadily deteriorating health. Against this substantial evidence of disability, MetLife chose to credit Dr. Lieberman's flawed Physician Review to bolster its decision that. Plaintiff was not disabled FN9. Under these circumstances, the Court can only conclude that MetLife's LTD benefits decision was arbitrary and capricious. Hawkins, 326 F.3d at 919 (reversing the insurer's decision when the “record contains nothing more than scraps to offset the evidence” in the claimant's favor).


MetLife's Reasons For Rejecting Plaintiff's Final Appeal Were Arbitrary and Capricious
In the December 8, 2004 letter denying Plaintiff's final appeal, MetLife stated that Plaintiff did not qualify for benefits because: 1) Dr. Lieberman's Review found that she could perform sedentary or light work, rendering her capable of working as a Knowledge Management Content Editor; 2) from April 2, 2002 until June 17, 2002, there was no objective medical evidence supporting that Plaintiff was under any kind of medical care, or that Plaintiff's ailments were so severe as to preclude her from working; and 3) Plaintiff's file lacked objective testing to support Plaintiff's claim that her depression, fibromyalgia, pain, and vision problems were disabling. MET 803. The Court finds that the reasons set forth by MetLife are logically unsound and do not provide a valid basis for rejecting Plaintiff's LTD application.


Reliance Upon Dr. Lieberman's Physician's Review, to the Exclusion of Other Evidence, Was Unreasonable
Since it was discovered in June of 2002 that Plaintiff was suffering from fibromyalgia, both her treating physician and the SSA consulting psychiatrist agreed that she was unable to return to work. None of the physicians who examined Plaintiff stated that she was capable of working, or offered opinions on her abilities that would support such a conclusion. Despite this, MetLife relied upon the opinion of its own hired consultant, who never examined Plaintiff and apparently reviewed only a select portion of Plaintiff's submissions, to conclude that Plaintiff was not entitled to LTD.

Admittedly, a fiduciary acting under ERISA-unlike an ALJ reviewing a claim under the Social Security Act-is not required to accord special deference to the opinions of treating physicians. Kobs v. United Wis. Ins. Co., 400 F.3d 1036, 1039 (7th Cir.2005). As the Supreme Court explained in Black & Decker Disability Plan v. Nord,:

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

538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) (emphasis added.)

But while the fiduciary need not give special, weight to the opinions of the claimant's treating physicians, “it may not arbitrarily repudiate or refuse to consider the opinions of a treating physician.” Glenn v. MetLife, 461 F.3d 660, 671 (6th Cir.2006). Moreover, “[t]he denial of LTD benefits may be arbitrary and capricious when the decision is based on a conclusion by a non-examining physician who did not examine the entire record and discounted relevant medical evidence.” Lawrence v. Life Insurance Company of North America, No. 06 C 6094, 2007 WL 2410180, at * 9 (N.D.Ill. Aug.20, 2007); see also Carugati v. Long Term Disability Plan for Salaried Employees, No. 01 C 5863, 2002 WL 441479, at *6 (N.D.Ill. Mar.21, 2002) (fiduciary's denial based upon a consulting physician's report, which selectively cited to the record, is arbitrary and capricious).

In Ladd v. ITT Corp., 148 F.3d 753, 754 (7th Cir.1998), like the case at bar, a plan relied upon a negative report by a consulting physician, despite the fact that both the claimant's treating physicians and an ALJ for the SSA found that the claimant was disabled. The Seventh Circuit determined that the plan's decision to deny the plaintiff's claim and rely on the consulting physician's report was arbitrary and capricious, because the consulting physician did not provide any reasons for disagreeing with the plaintiff's physicians and the ALJ. Id.

Here, in concluding that Plaintiff was capable of performing light work, Dr. Lieberman made no attempt to distinguish the myriad of medical evidence supporting Plaintiff's claim. Plaintiff's treating physician, Dr. Dzamashvi1i, has consistently labeled Plaintiff's condition as disabling, providing a number of reports detailing the debilitating nature of her fibromyalgia, migraines and chronic pain syndrome. See MET 220-221, 223-226, 235-239. Dr. Dzamashvili's fibromyalgia diagnosis was supported by the conclusions of rheumatologist Dr. Gogoneata, who confirmed that Plaintiff suffers from fibromyalgia, MET 732-733, and his migraine diagnosis was supported by neuro-ophthalmologist Dr. Davis. MET 240. Dr. Laura Jansons, a clinical psychologist who evaluated Plaintiff on behalf of the SSA, concluded that Plaintiff's cognitive capacity had been negatively affected by depression, pain, and medications, and recommended that Plaintiff not return to work. MET 304. The SSA evaluated all of Plaintiff's medical evidence and agreed that Plaintiff was, in fact, disabled from performing even sedentary work.

Like Dr. Lieberman in his review, MetLife made no attempt, to explain why it was rejecting these physicians' findings, and made no mention whatsoever of the SSA's determination, when informing Plaintiff that her final appeal was being denied. Instead, it curtly informed Plaintiff that Dr. Lieberman, a physician who had never examined Plaintiff and apparently reviewed only a portion of the file, determined that she was capable of performing her former position and, therefore, her application was being denied. MetLife's decision to credit Dr. Lieberman's Physician's Review, to the exclusion of all evidence supporting Plaintiff's claim, is particularly troubling, because the Court finds that Dr. Lieberman's Review was wholly unreliable. See, e.g., Govindarajan v. FMC Corp., 932 F.2d 634 (7th Cir.1991) (a plan's selective review of the medical evidence to justify a denial of benefits is arbitrary and capricious).

Dr. Lieberman based his opinion on a selective review of the evidence, neglecting to distinguish the parade of medical opinions and test results that support Plaintiff's claim of disability. See Glenn v. MetLife, 461 F.3d 660, 671 (6th Cir.2006) (“the plan administrator need not accord special deference to the opinion of a treating physician. By the same token, it may not arbitrarily repudiate or refuse to consider the opinions of a treating physician .”) Moreover, Dr. Lieberman did not consider Plaintiff's favorable SSA determination; he relied upon the most negative inference from his purported conversation with Dr. Dzamashvili; and he improperly discredited Plaintiff's claims regarding the severity of her pain, because of the absence of nonexistent, objective tests and because of his perception of what most people with fibromyalgia can do. This last error was his most egregious.

The Seventh Circuit specifically discredited as unpersuasive a physician's disability opinion that was based upon his perception of what the majority of fibromyalgia suffers could do, and upon the lack of objective evidence confirming disabling pain. In Hawkins v. First Union Corporation Long-Term Disability Plan, the court explained the impropriety of relying upon generalizations about fibromyalgia, stating that:

‘There is no serious doubt that Sarchet is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not and the question is whether Sarchet is one of the minority....’ The fact that the majority of individuals suffering from fibromyalgia can work is the weakest possible evidence that [the claimant] can, especially since the size of the majority is not indicated; it could be 50.00001 percent.

326 F.3d 914, 9.16 and 919 (7th Cir.2003) (emphasis added) (quoting Sarchet v. Chater, 78 F.3d 30b, 306-07 (7th Cir.1996).)

*15 The Hawkins court was also deeply troubled by the importance that the insurance company's physician placed on the lack of objective tests to substantiate the extent of the claimant's pain. The court explained that the severity of the pain experienced by persons diagnosed with fibromyalgia cannot be documented by objective tests; the only evidence regarding the severity of the pain is the claimant's subjective statements. Id, (“Pain often and in the case of fibromyalgia cannot be detected by laboratory tests. The disease itself can be diagnosed more or less objectively by the 18-point test ..., but the amount of pain and fatigue that a particular case of it produces cannot be.”) Accepting the insurance company's physician's position, i.e., that fibromyalgia is not disabling absent objective evidence of the severity of the pain, would mean that fibromyalgia could never be shown to be totally disabling, which is improper. Id. at 916-918. Similarly, Dr. Lieberman's decision to discredit Plaintiff's evidence on this basis is improper.

Next, the fact that MetLife failed to provide Dr. Lieberman with Plaintiff's SSA file, and Dr. Lieberman's selective review of the evidence he did receive, further undermine the probative value and reliability of his Physician's Review. Dr. Lieberman's Review indicates that he reviewed only office notes by ophthalmologist Dr. Patricia Davis, the rheumauologic evaluation by Dr. Gogomeata, a vaguely described category of laboratory tests, a June 2, 2002 CAT scan, records from Dr. Dzamashvili, records from Dr. Lengemann, and a neuropsych test by Dr. Laura Jansons. Noticeably absent from Dr. Lieberman's list of reviewed materials is Plaintiff's SSA file, as well as the SSA's determination that Plaintiff was disabled.

As discussed more thoroughly below, MetLife's failure to provide Dr. Lieberman with (or otherwise consider) Plaintiff's SSA file and determination is further evidence that MetLife's review was arbitrary and capricious. Interestingly, Dr. Jansons' neuropsych tost, which Dr. Lieberman did review, was part of Plaintiff's SSA file. And even though Dr. Lieberman mentions the test, he cites to Dr. Jansons' findings selectively. For example, Dr. Lieberman mentions Dr. Jansons' finding that Plaintiff was “ ‘in the average range of intellectual functioning,’ no statistical ‘strengths or weaknesses emerged.’ “ But he entirely neglects to mention Dr. Jansons' conclusion that Plaintiff: 1) should “not return to her most recent job, she seems unable to maintain the cognitive focus required. Her cognitive ability is affected by depression, pain and medications”; and 2) “does display weakness with verbal recall, remote memory, associate learning, and auditory processing.FN10” MET 304.

    FN10. Dr. Lieberman does cite to Dr. Jansons' diagnosis that Plaintiff suffers from major depression and generalized anxiety disorder.


The Court was also struck by the fact that Dr. Lieberman's Review spent as much time discussing Dr. Lengemann's June 2002 evaluation as he did all of Dr. Dzamashvili's records. Clearly, the evidence furnished by Dr. Dzamashvili was more relevant. Plaintiff had a short and somewhat frustrating relationship with Dr. Lengemann, from April until June of 2002- prior to her fibromyalgia diagnosis. Dr. Lengemann's notes reveal his skepticism of Plaintiff's subjective claims of pain, largely because he was unable to verify them objectively. Notably, Dr. Lengemann never tested Plaintiff for fibromyalgia.

*16 Conversely, Dr. Dzamashvili treated Plaintiff for years, beginning in June of 2002. Dr. Dzamashvili was the first physician to diagnosis plaintiff with fibromyalgia-a diagnosis that was confirmed by tender spots/trigger evaluation performed by Rheumatologist Dr. Elea Gogoneata in September of 2002. Dr. Dzamashvili also diagnosed Plaintiff with migraines, a diagnosis supported by Dr. Patricia Davis's finding that Plaintiff suffered from diplopia, which is vertical and “double vision secondary to possible complicated migraine.” MET 227, 410, And yet Dr. Lieberman's Review glosses over Dr. Dzamashvili's findings of severe and debilitating pain, and does not attempt to reconcile his own conclusions with Dr. Dzamashvi1i's records supporting Plaintiff's claim of a disability FN11.

    FN11. In addition to the slanted reliance upon Dr. Dzamashvili's “aberrational” oral statement, Dr. Lieberman's Review seems to go out of its way to casually undermine Plaintiff's claim. Dr. Lieberman's somewhat cursory Review took time to note that Plaintiff failed to follow up with “ophthalmology,” as recommended by Dr. Lengemann; this hardly seems relevant when Dr. Lieberman clearly knew that Plaintiff received testing and treatment from Dr. Davis, a neuro-ophthalmologist. The Review also lists a number of tests and labs that came back as “normal,” but these tests merely ruled out ailments that were not relevant to and did not. undermine Plaintiff's claim that, her fibromyalgia, migraines, and chronic pain rendered her disabled. And while Dr. Lieberman's Review carefully listed the numerous tests that ruled out irrelevant, unclaimed ailments, he failed to mention more relevant testing that supported Plaintiff's claim. For example, Dr. Lieberman's Review does not discuss the results from Plaintiff's sleep study, which illustrated that. Plaintiff was experiencing periodic leg movements that disturbed her sleep, with frequent micro arousals of unknown etiology and excess alpha activity. The results from the sleep study are consistent with Plaintiff's claim of non-restorative sleep and fatigue, and they constitute objective evidence consistent with a diagnosis of fibromyalgia. See Monroe v. Pacific Telesis, 971 F.Supp. 1310 (C.D.Cal.1997) (noting the significance of sleep studies with respect to fibromyalgia.)


Dr. Lieberman did contact Dr. Dzamashvili, just after completing his Review. Dr. Lieberman's Addendum indicates that Dr. Dzamashvili stated that: 1) he would likely be able to work with Plaintiff's reported levels of pain; and 2) he agreed that Plaintiff could do no more than light duty activities. Despite ignoring Dr. Dzamashvili's written statements in his Review, Dr. Lieberman was all too ready to jump on Dr. Dzamashvili's purported statements undermining Plaintiff's claim for LTD benefits.

Initially, the Court notes that Dr. Dzamashvili's statement that Plaintiff could not do more than light duty work is not tantamount to stating that Plaintiff is capable of doing light duty work. More importantly, however, to accept these statements as evidence that Dr. Dzamashvili believed that. Plaintiff could do light duty work contradicts every medical record and report submitted by Dr. Dzamashvili. See, e.g., MET 220-221 (2/2/2003 L TD Attending Physician Report for MetLIfe finding that Plaintiff is unable to work because her condition is chronic); MET 223-226 (11/29/2002 Narrative Report and detailed assessment of functional capacity identifying Plaintiff's restrictions and limitations, which would preclude her from performing even sedentary work); MET 235-238 (4/5/2004 Headaches Residual Functional Capacity Questionnaire, noting that Plaintiff was “precluded from performing even basic work activities,” that Plaintiff was incapable of tolerating even “low” work stress, and that Plaintiff would miss work more than three times per month due to her impairments.)

MetLife attempts to explain the apparent contradiction by arguing that Dr. Lieberman's conversation with Dr. Dzamashvili occurred in 2004-more than two years after her initial diagnosis-and that Plaintiff was steadily improving. Nothing in the Record supports MetLife's claim that Dr. Dzamashvili believed Plaintiff's condition was improving. To the contrary, Dr. Dzamashvili never wavered from his finding that Plaintiff's condition was chronic. Dr. Dzamashvili completed the Headaches Residual. Functional Capacity Questionnaire-where he noted that Plaintiff's chronic impairments rendered her unable to perform even sedentary work-in April of 2004. This is utterly inconsistent with MetLife's argument that Dr. Dzamashvili believed Plaintiff's condition was improving in 2003 and 2004 FN12.

    FN12. Even accepting MetLife's improbable argument, it would not negate the fact that Dr. Dzamashvili found Plaintiff to be disabled at least through April 5, 2004, entitling her to benefits through at least that period. The Plan requires that Plaintiff prove that she was disabled through the Elimination Period and the next 24-month period. MET 38, 661. Based on Plaintiff's April 2, 2002 date of disability, her elimination period would run through September 29, 2002,. The Court finds it unreasonable to conclude, based upon Dr. Lieberman's purported conversation with Dr. Dzamashvili, that although he found Plaintiff's condition to be chronic and totally disablinq as late as April of 2004, and although the SSA found Plaintiff to be disabled from April 2, 2002 through at least May of 2004, that Plaintiff's condition so improved that she suddenly was able to work by September 29, 2004 (the expiration of the 24 month period) so as to render her ineligible for benefits, or by November 24, 2004, when Dr. Lieberman spoke to Dr. Dzamashvili.


*17 Dr. Lieberman's and MetLife's reliance upon this single purported oral opinion, and their rejection of Dr. Dzamashvili's multiple written opinions further illustrates the unreasonableness of their decisions. See Glenn, 461 F.3d at 669 (“[t]hat information is so inconsistent with other medical evidence and detailed reports by [the treating physician] over a period of three years that it can best be described as aberrational.”); Hatter v. Raytheon Co., No. 3:06CV-308-H, 2007 WL 855233, at *2-3 (W.D.Ky. March 15, 2007) (finding arbitrary and unreasonable insurer's decision to credit one, aberrational oral statement that was contrary to the physician's numerous written reports.)


b. MetLife's Statement that Plaintiff was not Receiving Medical Care and Failed to Supply Objective Evidence That Her Fibromyalgia was Debilitating is Erroneous
MetLife's second basis for denying Plaintiff's application is even less supportable. MetLife's contention that Plaintiff was not under “any kind of medical care” between April 2002 and June 17, 2002 is flatly contradicted by the Record. On April 2, 2002, Plaintiff's psychiatrist, Dr. Lance Holemon stated that Plaintiff was disabled and unable to return to work until April 23, 2002. MET 346. Plaintiff's treating physician, Dr. Ryan, noted that Plaintiff had been suffering from ongoing symptoms since November of 2001, and opined that Plaintiff would not be able to return to work until June 2, 2002. MET 347, Shortly thereafter, Dr. Ryan left for maternity leave, and Plaintiff saw her colleague, Dr. Lengemann, on May 28, June 12, and June 19 of 2002. Dr. Lengemann was unable to identify what, was causing Plaintiff's symptoms, and referred her to a neurologist and an opthomalogist. Notably, Plaintiff sought treatment from both a neurologist and an opthomalogist FN13.

    FN13. Plaintiff did not, however, go to the specialists to whom she was referred by Dr. Lengemann. MetLife makes much of the fact that. Plaintiff lied to Dr. Lengemann about why she did not see his physicians. In light of the clearly contentious relationship between Plaintiff and Dr. Lengemann, the Court finds that the lie evinces nothing but Plaintiff's desire to break ties with Dr. Lengemann without a confrontation.


In light of this evidence, to say that Plaintiff was not receiving medical care during this time period is preposterous. Clearly, Plaintiff was actively seeking medical testing and treatment for her as of then unknown condition. The fact that her physicians were unable to determine that Plaintiff was suffering from fibromyalgia until Dr. Dzamashvili tested for it in July of 2002 does not negate the fact that Plaintiff was suffering prior to her diagnosis. MetLife's position fails to account, for the nature of fibromyalgia:

fibromyalgia, also known as fibrositis [is] a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are pain all over, fatigue, disturbed sleep, stiffness, and-the only symptom that discriminates between it and other diseases of a rheumatic character-multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

*18 Sarchet, 78 F.3d at 306-07. Her physicians' initial failure to diagnose her with this “elusive and mysterious” disease until July of 2002 is not evidence that Plaintiff was not suffering from a disability in April through June of 2002. That is particularly true in the instant case, where the evidence shows that Plaintiff was steadfastly searching for a diagnosis and treatment plan during that time.

For similar reasons, the Court finds untenable MetLife's argument that Plaintiff was not entitled to LTD benefits because her file lacked objective testing to support the conclusion that her depression, fibromyalgia, pain, and vision problems were disabling. The Seventh Circuit has repeatedly stated that, once a physician has confirmed that a patient has fibromyalgia, there are no objective tests to determine the severity of the condition. See Sarchet 78 F.3d at 306-07; Hawkins, 326 F.3d at 916 (noting that fibromyalgia can be diagnosed objectively, but the severity of the fibromyalgia symptoms cannot be determined objectively.) MetLife's insistence that Plaintiff provide documentation that she cannot possibly produce demonstrates both a fundamental misunderstanding of the disease and the unreasonableness of its determination.


2. MetLife's Failure to Account for the SSA's Disability Award Renders Its Decision Arbitrary and Capricious.
MetLife's denial of Plaintiff's final appeal did not mention at all the Social Security Administration ALJ's determination that Plaintiff had been disabled since April 2, 2002. In response to Plaintiff's argument that this “oversight” is evidence that MetLife's decision is arbitrary and capricious, MetLife argues only that the cases cited by Plaintiff are distinguishable FN14. The Court disagrees. While elements of these cases may be distinguished on certain grounds, MetLife cannot avoid the bevy of authority holding that a fiduciary's failure to even consider the SSA's timely finding of disability is evidence that its decision is arbitrary and capricious. See, e.g., Ladd, 148 F.3d at 753-754.

    FN14. Halpin v. WW Grainger, Inc. 962 F.2d 685, 695 n. 11 (7th Cir.1992) (“although the standards used in adjudicating social security cases are not applicable under ERISA, the guiding principles developed in those cases may be instructive in ERISA cases.”) LaBarge v. Life Insurance Co. Of North America, 2001 WL 109527, at *8 (N.D.Ill. Feb.6, 2001) (“The findings of the Social Security Administration are compelling evidence of a plaintiff's disability. A social security decision may be considered by a court reviewing a claim for disability benefits under the Employment Retirement Income Security Act of 1974.”)


The Court acknowledges that a plan is not required to accept a Social Security Administration adjudication of disability as binding on it, particularly where the definitions of disability under federal law and the plan in question are different. See Pari-Fasano v. ITT Hartford Life & Accident Ins. Co., 230 F.3d 415, 419-20 (1st Cir.2000). Nor is a plan required to defer to treating physicians in the manner required of an ALJ in a Social Security case. See Nord, 538 U.S. at 825. But that does not mean that the Social Security Administration's determination provides no relevant evidence; in support of a claimant's application for LTD. See Pari-Fasano, 230 F.3d at 420.

If MetLife had discounted this evidence because of a differing definition of disability, or a differing level of deference to treating physicians, MetLife could easily have stated this Lo Plaintiff in its denial letter. Its failure to do so, and the fact that it apparently did not even provide Dr. Lieberman with Plaintiff's full SSA file, indicates that the evidence was not considered at all. See Bard v. Boston Shipping Ass'n, 471 F.3d 229, 2.42 n. 17 (1st cir.2006).

*19 An ERISA plan administrator's failure to address the SSA' s finding that a claimant, is totally disabled is an indication that the plan's denial of LTD benefits is arbitrary and capricious. Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir.2005) In Calvert, a case remarkably similar to this one, the plan administrator relied almost exclusively on the recommendation of a hired physician consultant, who conducted a file review but not a physical examination of the claimant. See Id. The Sixth Circuit found that the plan's review was clearly inadequate, because the plan not only overlooked medical evidence supporting the claimant's application, but also because the plan failed to mention the Social Security Administration's determination. Id. at 296 (“not ... even to discount or disagree with it, which indicates that he may not even have been aware of it.”); see also, Glenn, 461 F.3d at 669 (“That MetLife apparently failed to consider the Social Security Administration's finding of disability in reaching its own determination of disability does not render the decision arbitrary per se, but it is obviously a significant factor to be considered upon review.”)

The evidence shows that Plaintiff notified MetLife of the SSA's disability determination well before its final review of Plaintiff's LTD application. Yet there is no indication in the Record that MetLife considered the SSA's determination in denying Plaintiff's claim. The Court concludes that MetLife's failure to address the SSA's DIB award is further evidence that. MetLife's decision was arbitrary and capricious.


3. Procedural Irregularities Further Demonstrate MetLif

Awarded: Claimant Wins