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Pamela Spina v. Cvs Long Term Disability

March 2, 2011

PAMELA SPINA, PLAINTIFF,
v.
CVS LONG TERM DISABILITY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Sandra S. Beckwith Senior United States District Judge

ORDER This matter is before the Court on cross-motions for judgment on the administrative record filed by Defendant Hartford Life & Accident Insurance Company (Doc. No. 12) and Plaintiff Pamela Spina (Doc. No. 13). Additionally, Plaintiff has filed a motion for oral arguments (Doc. No. 18). For the reasons that follow, Plaintiff's motion for judgment on the administrative record is well-taken and is GRANTED; Defendant's motion for judgment on the administrative record is not well-taken and is DENIED. Plaintiff's motion for oral argument is MOOT. This case is REMANDED to the plan administrator with instructions to reinstate Plaintiff's long-term disability benefits as of July 21, 2009.

I. Background Plaintiff Pamela Spina presents a claim against Defendants CVS Longterm Disability Plan ("the Plan") and Hartford Life & Accident Insurance Company ("Hartford") pursuant to theEmployee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), to review the plan administrator's decision terminating her long-term disability benefits from the Plan. Plaintiff contends that the plan administrator's determination that she is not disabled under the "any occupation" provision of the Plan was arbitrary and capricious because it was not the product of a deliberate principled reasoning process and because it was not supported by substantial evidence.

The Plan is an "employee welfare benefit plan" within the meaning of ERISA, 29 U.S.C. § 1002(1). Plaintiff was a participant in the Plan through her employment with CVS Corporation, where she was a customer call center supervisor.

In December 2006, Plaintiff was diagnosed with stage III stomach cancer. In January 2007, Plaintiff underwent a subtotal gastrectomy which involved removal of 75% of her stomach. AR764. This surgery included a Roux-en-Y gastrojejunostomy, which involves attaching the remainder of the stomach directly to the small intestine. DORLAND'S ILLUSTRATED

MEDICAL DICTIONARY, at 76 (31st ed. 2007). Plaintiff developed significant post-operative complications - including an abscess and sepsis - which resulted in two additional surgeries and hospital stays. For some of this period, Plaintiff was in an induced coma and required the assistance of a ventilator. Once these complications were resolved, Plaintiff underwent a courseof chemotherapy and radiation treatments which was completed in the fall of 2007.

Plaintiff initially applied for and received short-term disability benefits. Hartford approved Plaintiff's claim for long-term disability benefits in June 2007 pursuant to the Plan's "own occupation" clause. AR 420-21. Under this provision, a plan participant is eligible for benefits if she is unable to perform the material duties of her regular occupation and is otherwise not gainfully employed. AR 421. After 24 months of payments under the "own occupation" clause, the terms of the "any occupation" clause come into effect. Under this provision, a plan participant is eligible for long-term disability benefits if she is unable to perform any occupation for which she is or may become qualified by education, training, or experience and is otherwise not gainfully employed. Id. In December 2008, Hartford sent Plaintiff a letter notifying her that it was commencing an investigation into whether she would be eligible to receive benefits under the "any occupation" clause after the expiration of her eligibility for benefits under the "own occupation" clause in June 2009. AR 355-56.

Although she was now cancer-free, from about December 2008 through about May 2009, Plaintiff's primary complaint post-surgery appeared to be chronic fatigue, which she thought might be a result of her radiation treatments. Plaintiff's treating oncologist, Dr. Albers, documented these complaints in office notes from January and May of 2009. AR 640, 642. In January 2009, Dr. Albers completed and returned to Hartford a form indicating that Plaintiff had a fair prognosis for return to work due to chronic fatigue and abdominal pain. AR 348. In May 2009, Dr. Albers completed a second form for Hartford indicating that due to chronic fatigue, Plaintiff would not be able to work even in a sedentary position. AR 298. In June 2009, Hartford's claims examiner discussed Plaintiff's condition with Dr. Albers's nurse, who informed Hartford that Dr. Albers's office notes did not reflect the full extent of Plaintiff's impairment. The nurse advised Hartford that due to Plaintiff's stomach surgery, she was experiencing severe cramping and diarrhea immediately after eating. AR87. She also advised Hartford that due to her surgery, Plaintiff has malabsorption, meaning that she does not absorb the nutrients in the food she eats, and consequently experiences fatigue, Vitamin B12 deficiency, and iron loss. Id. The nurse also advised Hartford that in Dr. Albers's opinion, Plaintiff could not maintain a regular job. Id.

In July 2009, Hartford submitted Plaintiff's medical records to Dr. Nelson Chao, a physician board certified in internal medicine and oncology, for a review. In his report, Dr. Chao agreed with Plaintiff that her chemoradiation treatments could result in significant fatigue is no clinical finding that defines fatigue." AR 278. Dr. Chao concluded that since Plaintiff was disease free at the time, "there are no clinical findings at this time precluding the claimant from working in a sedentary capacity." Id.

Hartford also obtained an employability analysis report from an internal vocational expert in July 2009. AR 259-260. Based on Dr. Chao's opinion that Plaintiff can perform sedentary work, the vocational expert concluded that because of her education, training and experience, she is able to perform the jobs of customer complaint service supervisor, skip tracer, claims clerk, and routing clerk and that these jobs exist in this region in reasonable numbers. Id. at 260.

Thus, based on the review of the medical evidence submitted, but principally it appears on the opinions of Dr. Chao and the vocational expert, Hartford terminated Plaintiff's long-term disability benefits effective July 21, 2009. AR 133-134.

Plaintiff filed a timely administrative appeal from the termination of her benefits. In contrast to chronic fatigue, Plaintiff's appeal focused on "dumping syndrome" and she submitted additional medical evidence in support of that theory of disability. According to the Mayo Clinic's website, the pertinent portions of which are including in the administrative record, "dumping syndrome": is a group of symptoms most likely to develop most if you've had surgery to remove all or part of your stomach, or if your stomach has been surgically bypassed to help lose weight. Also called rapid gastric emptying, dumping syndrome occurs when the undigested contents of your stomach are transported or "dumped" into your small intestine too rapidly. Common symptoms include abdominal cramps and nausea.

AR 797. The Mayo Clinic went on to explain that when symptoms of dumping syndrome occur within 15 to 30 minutes after a meal, the symptoms may include nausea, vomiting, abdominal pain or cramps, diarrhea, dizziness or lightheadedness, bloating or belching, fatigue, and heart palpitations. AR 797-98. The additional information submitted by Plaintiff in her appeal also included a report and opinion from her gastroenterologist, Dr. Peck, medical records from Dr. Peck, additional medical records from Dr. Albers, medical records related to her surgeries and chemoradiation treatment, medical records from her family physician, Dr. Pastor, a video statement of Plaintiff and her husband, a report from her own vocational expert, Mark Pinti, and two articles on dumping syndrome, which included the Mayo Clinic report just cited. AR 527-535.

In his report, dated January 5, 2010, Dr. Peck recounted his course of treating Plaintiff for various gastric issues through the discovery of and her treatment for stomach cancer. Dr. Peck also stated that in the course of treating Plaintiff after her surgery, he received office notes from Dr. Albers from May 2009 indicating that Plaintiff was experiencing rapid transit with abdominal cramping. He also noted that inSeptember 2009, Dr. Albers documented that Plaintiff was reporting symptoms consistent with dumping syndrome. AR 536-538.

Dr. Peck also examined Plaintiff in September 2009 and concluded that Plaintiff was exhibiting symptoms of "early dumping syndrome," which means that the symptoms occur shortly after she eats. AR 538; AR 803. Dr. Peck recommended that Plaintiff follow up with a dietician to help manage her symptoms. AR 538.

Dr. Peck then provided his opinion on the effects of dumping syndrome on Plaintiff and her prospects for returning to work:

Dumping syndrome is a group of symptoms that usually develops after surgery to remove all or part of the stomach. This condition is also known as "rapid gastric emptying." The most common symptoms include abdominal cramps and nausea. Other symptoms can include diarrhea, bloating, and fatigue. Additionally, in severe cases, weakness, dizziness, and lightheadedness or "flushing" can be present. Many times these patients experience anxiety and nervousness as well as heart palpitations and confusion.

The mechanism involved in dumping syndrome involves the movement of ingested food into the small intestine more quickly than normal. The acceleration is most often associated with surgery. There is a correlation between the more stomach removed or bypassed and the severity of the syndrome. Unfortunately, with Mrs. Spina having lost three quarters of her stomach, the syndrome is "severe" in her case and is likely to be a chronic disorder.

She was referred to a dietician for help in managing her symptoms by changing her eating habits. Frequently, these patients are advised not to drink with the ingestion of food and to be mindful of theingestion of juices or foods that have high sugar contents or food items that contain fructose. Presently, I believe the pain and discomfort associated with this condition can be described as moderate. That is to say that the pain can be tolerated but would cause an impediment in the performance of normal activities. In addition, in my clinical experience, I would say that Mrs. Spina's attention and concentration are frequently effected [sic] by the symptoms and side effects of dumping syndrome.

Presently, I would indicate that Mrs. Spina's prognosis is guarded. As we move forward from this point, we must be very concerned about Mrs. Spina's weight loss and her ability to comfortably take nutrition. Because the "dumping syndrome" is chronic, it is unlikely that she will recover from it.

Although this syndrome has no specific limitations on sitting, standing and walking, it should be noted that the process involves a variety of symptoms which would remove Mrs. Spina from a vocational setting anywhere between thirty-five to forty-five minutes for unscheduled diarrhea/bathroom events. In fact, some of the diarrhea type events can become so unpredictable that it may not be realistic that Mrs. Spina would be able to return to a work environment after concluding such an event.

Because of the side effects of dizziness, lightheadedness, and fatigue, I believe that Mrs. Spina would not posses a minimum level of attention and concentration that would allow her to participate in a daily work environment.

Mrs. Spina is a very good candidate for disability. I am presently unaware of any work environment that she would be able to participate in a sustained manner.

AR 538-539 (emphasis added).

The additional office notes from Dr. Albers reflect that Plaintiff's first complaints about dumping syndrome symptoms occurred in May 2009, as Dr. Peck's summary indicated. AR 612. In September 2009, Dr. Albers recorded that:

She also has difficulty with symptoms that are consistent with dumping. She has early transit of undigested food and then has to spend the next 30 minutes in the bathroom after taking a few bites. This seems to all settle down and she can eventually get enough intake in. She will take an Imodium only if going out and avoid eating [sic]. She has not taken any scheduled anti-diarrheals or bowel antimotility agents.

AR 614.

Plaintiff also had an office visit with Dr. Peck in September 2009. Dr. Peck's notes report that:

Her biggest problem is what appears to be early dumping syndrome. About 15 minutes after eating she will have abdominal cramping and then multiple episodes of diarrhea. She will have flushing. She will have some dizziness. She will not feel like she has to lie down. She is trying to eat small meals everyday [sic]. She is watching her simple sugars. She is not drinking with solid meals. She says it does not bother her too much when she is at home but it makes quite an impedance when she goes out to dinner.

AR 616. Dr. Peck's assessment and plan was as follows:

Abdominal cramping and diarrhea. The symptoms are suggestive of early dumping syndrome. What we will do is have her see a dietician again to go over the things she can do from a dietary standpoint to improve things. If not we will try some octreotide 50 mcg b.i.d subcu 30 minutes before meals to see if that improves her symptoms.

Id. (emphasis added).

Plaintiff's video statement is about 20 minutes in length and in it she explains among other things how dumping syndrome affects her daily activities. In brief, Plaintiff explains that she has to eat five or six small meals a day of a quarter cup or less of food. Immediately after eating, she must lie down for approximately 30 minutes. After lying down, Plaintiff's abdominal and diarrheal symptoms commence and she will be in the bathroom anywhere from 30 minutes to two hours. Plaintiff's husband also provided a brief statement, but the upshot of both of their statements is that dumping syndrome essentially renders Plaintiff homebound.

Finally, Plaintiff's vocational expert, Mark Pinti, provided to Hartford an opinion which states that "Mrs. Spina's graphic depiction of her struggles with 'dumping syndrome' and its attendant effects, as well as Dr. Peck's explanation of the cause and effects of 'dumping syndrome' or ARDS, paint a picture of an individual who spends most of her day in pain, discomfort and taking frequent, unscheduled bathroom breaks followed by the need for extended periods of rest. There is no way an individual with those constraints could perform any work at any level of exertion." AR 795.

In February 2010, Hartford submitted Plaintiff's records, including the new evidence she produced in her appeal, to Dr. Vinayek, a board certified internist with a subspeciality in gastroenterology, and Dr. Marciniak, an internist with a subspeciality in oncology, for a file review and opinion. AR 173-180. Dr. Vinayek and Dr. Marciniak work for the same peerreview company. Both of their reports were provided in March 2010.

Dr. Vinayek stated that he spoke with Dr. Peck, who recounted Plaintiff's gastric surgery and post-operative complications, and her symptoms of dumping syndrome. Dr. Vinayek wrote that "[d]ue to all of these symptoms, Dr. Peck is not sure if the claimant would be able to work in any capacity in a meaningful way." AR 173. Dr. Vinayek reported that he spoke with Dr. Marciniak, who stated that from an oncology perspective, Plaintiff should be able to work in a sedentary capacity since she is cancer-free. Id. Dr. Vinayek summarized Plaintiff's video statement and her other medical records. AR 173-174. Dr. Vinayek concluded his report by providing his opinion as to Plaintiff's capacity to return to work:

Based on all of the medical records reviewed and my discussion with Dr. Peck as well as MES reviewer Dr. Marciniak, it is my opinion that the claimant is capable of functioning full time in a ...


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