The opinion of the court was delivered by: Judge Michael R. Barrett
This is an ERISA*fn1 benefits recovery action for which plaintiff seeks an award of disability benefits from his former employer, Allstate Insurance Company ("Allstate"). Jurisdiction is premised upon 29 U.S.C. §1132(a)(1)(B). Relief is sought from Metropolitan Life Insurance Company ("MetLife"), the Plan Administrator of Allstate's long-term disability plan (the "Plan").
Plaintiff was found disabled, and awarded Plan benefits as of March 15, 1993. See Administrative Record ("AR") at 462. Approximately seven years later, following review of video surveillance, he was found not disabled, and his plan benefits were terminated effective May 15, 2002. Plaintiff seeks a reinstatement of these benefit monies.
Now before the Court is the Administrative Record, including a copy of the Plan (doc. 21); plaintiff's motion for judgment as a matter of law to reverse the administrative decision (doc. 31); defendant's opposition memorandum and cross-motion for judgment on the administrative record (doc. 34); plaintiff's reply (doc. 42); and defendant's reply (doc. 47).
Plaintiff has an Associate's Degree in business management. AR 44. Prior to his disability, plaintiff worked for Allstate as a market sales manager. AR 475. He also previously worked for Allstate as an insurance agent and as a district manager. Id.
In October 1992, plaintiff left work due to lumbar spinal stenosis. AR 477. At that time, plaintiff claimed he could not sit, stand, or walk more than ten minutes, and that he spent 23 hours a day in bed. He underwent a series of back fusions in 1990, 1992, and 1994. AR 68. He applied for and received LTD benefits under the Plan beginning March 15, 1992. AR 462. In 1995, he was awarded Social Security Disability Benefits. AR 386.
A. Plaintiff's Continuing Disability
On July 13, 2000, plaintiff completed a "Personal Profile" questionnaire at the request of MetLife. AR 315-320. In this profile, plaintiff represented that he did not sleep more than two hours at a time, and could not even provide his own personal care. AR 316. He also reported that his eating had become "sporadic" due to the fact that he was in too much pain to eat ("can't eat in pain"). AR 317. When questioned as to what housework he performed, including yard work, his answer was "none." AR 318. He stated, "I do nothing." Id. When asked about shopping habits, he answered, "I do not shop." Id. He checked "No" when asked whether he drove or took public transportation. Id. When asked how he traveled, he wrote "wife -- multiple pillows -- also -- lying down." Id. He also stated, "I don't travel." Id. When asked about his hobbies or activities, he wrote "none." Id.
On February 10, 2000, Steven Milliner, M.D. ("Dr. Milliner"), plaintiff's orthopedic surgeon, completed an Attending Physician's Statement of Functional Capacity ("APS") attesting to plaintiff's continuing total disability. AR 142-3. According to the APS, plaintiff had to completely avoid sitting, changing position, assuming cramped/unusual positions, reaching, pushing/pulling/twisting, grasping/handling, finger dexterity, repetitive movement, climbing, balancing, bending/stooping/squatting, operating truck/dolly/small vehicle, operating heavy equipment, operating electrical equipment, and concentrated visual attention completely. AR 142. Dr. Milliner also reported that plaintiff has to use a cane and a walker, as well as a "TLSO body jacket". Id.
In December, 2000, MetLife wrote plaintiff asking him to submit to a Functional Capacity Evaluation ("FCE"). Plaintiff, however, objected to the FCE. In a letter to MetLife dated January 16, 2001, plaintiff wrote:
I can not tolerate a 4-8 hour time span for anything in my life due to my medical condition. Dr. Milliner is fully aware that I sleep only 2 hours at a time for the past 6 years. He is also fully aware that any activity, be it sitting, standing, etc etc. is limited to very short time frames. 4-8 hours of anything would be, in my opinion, a medical catastrophe and quite obviously would have only contribute to the chronic pain, if not worse!! [sic] AR 292-294.
In January 2001, plaintiff submitted additional evidence in support of his continuing total incapacity. AR 296. The evidence included a letter dated January 8, 2001 from Claire Moore, PA-C, of the Sonoran Spine Center, which stated that plaintiff "is unable to do any bending or twisting and has a difficult time with [activities of daily living]." The letter from Ms. Moore also stated that plaintiff "is unable to bathe himself and is unable to bend or twist. He is also unable to walk any distance whatsoever." AR 295.
Dennis Crandall, M.D. ("Dr. Crandall"), also of the Sonoran Spine Center, completed a consultation report on January 8, 2001. AR 227-229. According to this report, plaintiff told Dr. Crandall that, at best, his pain was a 10 on a scale of 1-10. AR 227. He further told Dr. Crandall that he could "not walk any distance at all and usually stays at home in a supine position with pillows under his legs for comfort." Id. Dr. Crandall further noted that, according to plaintiff, plaintiff "uses a walker, as well as a back brace" and "is unable to get outside of his home." Id.
In the physical examination section of Dr. Crandall's consultation, Dr. Crandall noted that "Bob is dependent upon his walker for ambulation." AR 228.
On March 1, 2001, Dr. Milliner completed another APS in which he reiterated plaintiff's total functional incapacity. AR 140-1.
B. MetLife's Video Surveillance
In late May of 2000, MetLife hired an investigator to observe and videotape plaintiff's activities. AR 157.
In June of 2000, video surveillance was conducted on two days. Plaintiff was not seen either day. AR 331. An individual familiar with plaintiff, confirmed plaintiff's residence and indicated that plaintiff "did not appear to be very active." AR 339.
Video surveillance continued for several days in July 2000. On July 8, 2000, plaintiff was observed retrieving his mail from across the street and walking around his residence. AR 158; videotape at 12:03 p.m. (7/8/00). Plaintiff was then observed walking back and forth watering plants in his yard. AR 158; videotape at 12:07 -- 12:12 p.m. (7/8/00).
Plaintiff was observed again on July 22, 2000, driving to the post office, yard sales, flea market, hardware store and gas station. He was seen carrying two boxes into the post office, small plastic bags from the yard sale, a weed trimmer from the hardware store, and pumping gas at the gas station. Plaintiff was away from the house for approximately 2 1/2 hours.
On July 28, 2000, plaintiff was observed working in his yard for approximately 10 minutes. He was seen carrying two potted plants, a small wooden/bamboo pole, and a small tree.
On July 29, 2000, plaintiff was again seen working in his yard for about 30 minutes. He also drove to a flea market, and two yard sales. He was away from his home approximately 1 hour and 45 minutes.
In September 2000, a MetLife investigator monitored plaintiff for two days. AR 322. The only activity observed was Plaintiff wheeling a garbage can from the street to his house. Id.
MetLife arranged for four more days of surveillance on January 23, 24, 25, and 26 of 2001. AR 240. No activity was observed on January 23 or 24. However, on January 25, 2001, plaintiff attended a doctor's appointment at the Mojave Heart Center in Bullhead City, Arizona. His female companion drove plaintiff to the appointment, a trip of approximately 50 minutes, and plaintiff entered and exited the building walking slowly and holding a cane in his left hand. Id.; videotape at 10:02:13 -- 20 a.m. and 11:11:22 -- 45 a.m. (1/25/01); Exhibit F (still image).
The couple then traveled approximately 10 minutes to the Golden Nugget Hotel and Casino in Laughlin, Nevada. AR 165. Plaintiff then walked into the casino without his cane. AR 165; videotape at 11:24:36 -- 11:27--54 a.m.; Exhibit H (still image). Plaintiff is seen playing video poker and slot machines for approximately 30 minutes. Plaintiff was inside the casino for approximately 31/2 hours. AR 165, videotape at 11:28:37 a.m.; 12:36:19 -- 12:42:27 p.m. Plaintiff then exited the hotel, again without the use of a cane, and the couple returned to their residence -- a travel time of approximately one hour. AR 165.
No activity was reported on January 26, 2001.
Nearly a year later, MetLife monitored plaintiff again on December 4, 14, and 15 of 2001. AR 230. During those days, plaintiff appeared to be at home, ...