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Vastag v. Prudential Insurance Company of America

United States District Court, D. New Jersey

May 31, 2018

BRIAN VASTAG, Plaintiff,


          Katharine S. Hayden, U.S.D.J.

         Defendant Prudential Insurance Company of America (“Prudential”) terminated the short term disability (“STD”) benefits plaintiff Brian Vastag was receiving under his employer's health insurance plan, and denied his application for long term disability (“LTD”) benefits. After his several appeals to the plan administrator were unsuccessful, Vastag timely filed suit under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (“ERISA”). Both sides have filed motions for summary judgment (D.E. 30, 31), on which the Court heard oral argument.

         With their moving briefs, both parties filed Statements of Material Facts Not in Dispute (“SOF”) (D.E. 30-11; D.E. 31-11), and responses to those statements. (D.E. 33-1; D.E. 34-1.) These four submissions take their contents from the Administrative Record furnished in discovery. It is robust, containing Vastag's medical records, reports written by physicians and medical providers who treated him, reports written by non-treating medical professionals who reviewed his records for Prudential, and written communications between Vastag and Prudential over the course of the appeals process.

         I. Factual Background

         Brian Vastag, 44 years old when he filed this case, formerly worked as a science reporter for the Washington Post. (D.E. 31-11, Vastag's SOF, ¶¶ 8, 9; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶¶ 8, 9.) Nash Holdings, LLC owns the Washington Post and is the policyholder. (Id. at ¶ 2; Id. at ¶ 2.) Vastag was an award-winning reporter. (Id.; Id.) Even though he is no longer an employee there, the Washington Post's website currently states:

Brian Vastag is a science reporter at The Washington Post, where he covers general science, the environment, climate change, and space. He covered the 2011 Japanese earthquake and the subsequent meltdown at the Fukushima nuclear plant; the heavy storms that battered the Southeast in 2011; parrot conservation efforts in Qatar; and the final launch of the space shuttle. From 2004 to 2010, Vastag free-lanced for some 40 publications, including U.S. News & World Report, New Scientist, Health, Nature, Science, Scientific American, Science News and National Geographic News. From 2000 to 2004, Vastag served as Washington news editor for the Journal of the American Medical Association. Vastag has made live radio appearances on BBC World Service, WNYC, and Public Radio International's The World, and television appearances on MSNBC and CNN Headline News.[1]

         Everything changed in the summer of 2012. While visiting family in Wisconsin in July, Vastag developed flu-like symptoms, including a high fever, chills, and dizziness. Still sick a month later, he saw a nurse practitioner in Washington, DC, who ran blood tests that showed elevated titers for Epstein Barr Virus (EBV[2]) and Lyme disease.[3] (Id. at ¶¶ 13, 16, 17; Id. at ¶¶ 13, 16, 17.)

         In October of 2012, with continued symptoms of malaise and fatigue-both physically and cognitively-Vastag saw Carlo Tornatore, M.D., a neurologist at Georgetown University Hospital. Dr. Tornatore noted that Vastag was experiencing painful paresthesia, a tingling sensation, in his arms and feet several times each day. On October 19, 2012, Vastag had an MRI of his cervical spine, which Dr. Tornatore read to show an ill-defined area consistent with post viral myelitis. Vastag returned to Georgetown University Hospital in December and March of the following year with continued symptoms. (Id. at ¶¶ 19-26; Id. at ¶¶ 19-26.)

         In August of 2013, over a year after his symptoms began, Vastag saw an allergist-immunologist specialist, Paneez Khoury, M.D., at the National Institute of Allergy and Infectious Disease. Dr. Khoury found that Vastag's pulmonary functioning test showed restricted breathing and his blood work tested positive for several viruses including EBV and Coxsackie. (Id. at ¶ 27; Id. at ¶ 27.)

         On September 17, 2013, Vastag, who was still living in Washington, D.C., sought out Derek Enlander, M.D., a specialist in Chronic Fatigue Syndrome (“CFS”) and a faculty member of the Internal Medicine Department at Mount Sinai Medical Center in New York. Dr. Enlander found Vastag's blood work showed elevated indicators for EBV, cytomegalovirus, [4] mycoplasma pneumonia, [5] and Coxsackie virus. (Id. at ¶ 28; Id. at ¶ 28.)

         By January of 2014, Vastag felt unable to keep up with the pace of work. He stopped working at the Washington Post and applied for-and was granted-short-term disability benefits by the carrier then making employee benefits decisions. (D.E. 30-3, Administrative Record, 15.) By letter dated March 7, 2014, Prudential notified Vastag that as of March 1, it had taken over management of disability benefits for Nash Holdings. (D.E. 30-6; Administrative Record, 110.) The March 7 letter asked him to authorize release of his medical information so Prudential could review his disability claim. (Id.)

         In January, 2014, Vastag consulted with Susan Levine, M.D., a leading CFS expert, who at the time was serving as the chairperson of the United States Department of Health and Human Services Chronic Fatigue Syndrome Advisory Committee. (D.E. 31-11, Vastag's SOF, ¶ 31; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 31.) This committee provides advice and gives recommendations to the Secretary of Health and Human Services on issues related to CFS. (D.E. 30-4, Administrative Record, 58.)

         Dr. Levine diagnosed Vastag with CFS on January 15, 2014. She saw him again in February and found he was experiencing continuing symptoms of trigger points, post exertional malaise, weakness, sore throat, and fatigue. While the parties agree that on April 7, 2014, Dr. Levine diagnosed Vastag with fibromyalgia, Prudential adds that this diagnosis was based on self-reported pain. That same week, Dr. Levine sent Prudential an Attending Physician Statement in which she advised that Vastag was unable to work. One week later, she submitted a Capacity Questionnaire indicating that Vastag could not work even part-time because “he should not perform any type of sustained walking, sitting, or interacting with others over the phone for more than 20 minutes without a break.” On May 9, 2014, Dr. Levine submitted another Capacity Questionnaire, adding that Vastag is “incapable of any sustained physical or mental exertion.” (D.E. 31-11, Vastag's SOF, ¶¶ 32-40; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶¶ 32-40.)

         Prudential hired Denise LeClerc, R.N., to review Vastag's file on May 20, 2014. She disagreed with Dr. Levine's conclusions and stated that Vastag should see other specialists for his sleep and cognitive complaints. According to LeClerc, there were “no exam findings or diagnostic findings” to explain his “claims of chronic weakness, fatigue and exhaustion.” Prudential denied Vastag's claim for STD benefits on June 12, 2014, based in part on Nurse LeClerc's review. On August 8, 2014, Vastag appealed, supplementing his claim with more medical records. With the appeal, he also applied for LTD benefits. (Id. at ¶¶ 41-44; Id. at ¶¶ 41-44.)

         In October, Prudential upheld its denial of STD benefits and denied LTD benefits. This decision was based in part on the report of a rheumatologist, David Knapp M.D., whom Prudential hired to review Vastag's medical records. He described the bloodwork that indicated the presence of infections as “borderline abnormal or non-diagnostic in regards to the claimant's subjective symptoms of fatigue and cognitive decline.” (Id. at ¶ 27; Id. at ¶ 27.) Dr. Knapp acknowledged in his report that tests performed on Vastag came back positive for viral infections, fevers, post-viral myelitis according to the MRI, restricted pulmonary functioning, and central vestibular dysfunction. But he concluded that Vastag was not disabled because objective medical evidence of total disability attributable to CFS was lacking. Dr. Knapp wrote that the absence of referrals for neuropsychological testing and a physical examination was “glaring.” (Id. at ¶¶ 45-46; Id. at ¶¶ 45-46.)

         In response, Vastag sought out neuropsychological and physical testing. He underwent Cardiopulmonary Exercise Testing (”CPET”) with Chris Snell, Ph. D., on February 4 and 5, 2015. (Id. at ¶ 47; Id. at ¶ 47.) Dr. Snell holds a doctorate in exercise and movement science, and his research focuses on the functional aspects of CFS. (D.E. 30-4, Administrative Record, 60.) Like Dr. Levine, he chaired the CFS Advisory Committee to Health and Human Services. (Id.)

         The CPET is administered over two days. Subjects pedal on a stationary bike while resistance is added incrementally. (D.E. 31-1; Vastag's Brief in Support of Summary Judgment, 13.) The test monitors cardiovascular, respiratory, and recovery responses, workload, effort, and metabolic response/oxygen consumption. (Id.) Someone with CFS will perform significantly worse on the second day, which is referred to as post exertional malaise (“PEM”). (Id.) According to Dr. Levine's report, the CPET is the gold standard for assessing capacity to work in CFS patients, something Prudential does not accept. (D.E. 31-11, Vastag's SOF, ¶ 47; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 47.)

         Based on the CPET results, Dr. Snell issued a report stating that Vastag could not work above a sedentary level of exertion and his recovery time of over seven days exceeded the average time of 24 hours. (D.E. 30-4, Administrative Record, 121.) He concluded that Vastag “demonstrates poor function and symptom exacerbation post-exertion; this will severely limit his ability to engage in normal activities of daily living and precludes full-time work of even a sedentary/stationary nature.” (Id. at 119.)

         Dr. Levine also reviewed the results of the CPET in a report dated February 20, 2015. (D.E. 31-11, Vastag's SOF, ¶ 50; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 50.) She found that Vastag demonstrated 60% of predicted value for oxygen consumption, as well as severe impairment of cardiovascular and respiratory responses, establishing that he suffers from a “debilitating form of CFS.” (D.E. 30-4, Administrative Record, 95.)

         On February 23, 2015, Vastag underwent a Quantitative Electroencephalogram (qEEG) with Marcie Zinn, Ph.D., whose research focuses on the cognitive neuroscience of infectious diseases, specifically CFS. (D.E. 31-11, Vastag's SOF, ¶ 52; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 52.) Dr. Zinn concluded that the qEEG revealed abnormal activity in the frontal, temporal, parietal, and occipital regions of the brain, which is “often related to reduced speed and efficiency of information processing.” (D.E. 30-4; Administrative Record, 97.)

         In addition to the CPET and qEEG testing, Vastag consulted with a clinical psychologist, Sheila Bastien, Ph.D., on February 14 and 15, 2015. (D.E. 31-11, Vastag's SOF, ¶ 54; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 54.) Dr. Bastien has taught, published, and researched extensively on chronic fatigue syndrome. (D.E. 30-4, Administrative Record, 142-153.) After reviewing the qEEG results and conducting an in person interview, as well as administering various neurocognitive testing in her office, Dr. Bastien found that Vastag had significant problems with visual perception and analysis, scanning speed, attention, visual motor coordination, motor and mental speed, memory, and verbal fluency. (Id. at 139.) She noted that the results of the verbal fluency test “placed him in the below average range of impairment and brain dysfunction, and [his score] is only 7 words above the cutoff for what is considered the range of organic brain damage.” (Id. at 138.)

         She found motor abnormalities consistent with CFS, as well as impairment in both short term and long term memory that “is not a normal finding in a healthy individual.” (Id. at 139.) She concluded that Vastag “is severely impaired, and cannot handle the cognitive demands of work in any occupation on a consistent and predictable basis, and should be considered completely disabled from any work for which he has reasonable training or experience, now and for the foreseeable future.” (Id.)

         On May 27, 2015, Vastag filed another appeal to Prudential and submitted the results of the CPET, the qEEG, and the neurological testing. (D.E. 31-11, Vastag's SOF, ¶ 61; D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 61.) Prudential hired two more outside medical professionals to review Vastag's records. Michael Villanueva, Psy.D., a neuropsychologist, issued a report dated July 7, 2015, that reflects agreement that the qEEG report showed “dysregulation.” (D.E. 30-6, Administrative Record, 68.) In denying benefits, Prudential relied on the portion of Dr. Villanueva's report that states the qEEG is “not intended to provide a diagnosis.” (D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 52.) Dr. Villanueva's description of the test also notes that while the qEEG may not diagnose CFS, it is “used to evaluate the nature and severity of deregulation in the brain in such conditions as mild traumatic brain injury.” (D.E. 30-6, Administrative Record, 68.)

         Regarding Dr. Bastien's findings of cognitive impairments, Dr. Villanueva found that her testing was flawed because it lacked a psychosocial and psychiatric history. (D.E. 30-6; Administrative Record, 75.) He also found that Vastag's high IQ score indicates he has no intellectual limitations. (Id.) He concluded that there is no “evidence of significant cognitive symptoms.” (Id. at 78.)

         Prudential also hired Melissa Cheng, M.D., who is board certified in preventive medicine and occupational medicine, to conduct an outside review. (D.E. 33-1, Prudential's Response to Vastag's SOF, ¶ 50.) In her report issued June 18, 2015, she characterized CFS as “a diagnosis of exclusion.” According to Dr. Chen, the CPET is “not diagnostic of the disorder” (D.E. 30-6, Administrative Record, 54), and while “an abnormal cardiopulmonary study may indicate evidence of chronic fatigue, ” such a finding alone does not confirm CFS. (Id.) Notwithstanding the various tests done on Vastag-the CPET, the qEEG, the neurological and cognitive tests, and MRI results-Dr. Cheng's report concluded that there “continues to be no discernible manifestation of physical finding, testing, and/or documentation of complaint that would support inability to perform work related function.” (Id. at 51.)

         Prudential upheld its denial on July 21, 2015. While taking into account the opinions of his treating medical providers and his self-reported functionality, it relied on the reports completed by “a physician Board Certified in Occupational Medicine and by a Clinical Neuropsychologist, who provided their opinions as to his functional capacity.” (D.E. 30-7, Administrative Record, 43.) Vastag filed suit against Prudential on August 14, 2015.

         II. Summary Judgment Standard

         Under the standard set forth in the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         III. Discussion

         Vastag has sued under the section of the ERISA statute authorizing a claimant to file a lawsuit “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). He seeks a ruling of the Court that he is disabled under the terms of the plan and that Prudential must pay him STD and LTD benefits retroactive to the denial date and going forward. (D.E. 31-1, Vastag's Brief in Support of Summary Judgment.) Prudential asks the Court to uphold its denial of benefits. (D.E. 30-12, Prudential's Brief in Support of Summary Judgment.) Of critical importance is the level of discretion afforded to Prudential's denial of benefits. Unsurprisingly, the parties are sharply divided on this point.

         a. ERISA Review

         Asserting a claim under Section 502(a)(1)(B) of ERISA requires the beneficiary or participant to “demonstrate that ‘he or she . . . ha[s] a right to benefits that is legally enforceable against the plan, ' and that the plan administrator improperly denied those benefits.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Hooven v. Exxon Mobil Corp., 465 F.3d 566, 574 (3d Cir. 2006)). The district court reviews the administrator's determination de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Fleisher, 679 F.3d at 120. If the plan does confer discretion, the court reviews the benefits denial using an arbitrary and capricious standard. “An administrator's decision is arbitrary and capricious if it is without reason, unsupported by substantial evidence or erroneous as a matter of law.” Id. at 121 (quoting Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir.2011) (internal quotation marks omitted)).

         Under a de novo standard of review, the court is to “determine whether the administrator properly interpreted the plan and whether the insured was entitled to benefits under the plan.” Viera v. Life Ins. Co. of North America, 642 F.3d 407, 414 (3d Cir. 2011) (quoting Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 808-09 (6th Cir. 2002.)) No. deference or presumption of correctness is accorded to the plan administrator. Id. De novo review:

[D]oes not require that a district court conduct a de novo evidentiary hearing or full trial de novo in making a determination between ERISA claimants. If the record on review is sufficiently developed, the district court, in its discretion, may merely conduct a de novo review of the record of the administrator's decision, making its own independent benefit determination.

Luby v. Teamsters Health, Welfare, and Pension Trust Funds, 944 F.2d 1176, 1185 (3d Cir. 1991); Viera v. Life Ins. Co. of North America, 871 F.Supp.2d 379, 384 (E.D. Pa. 2012).

         b. Applicable Standard of Review: De Novo or Arbitrary and Capricious?

         Prudential argues the Court must give deference to its final denial decision under the arbitrary and capricious standard based on language appearing in plan documents, with particular emphasis on provisions in the Summary Plan Description (“SPD”), which Prudential contends is part of the plan. (D.E. 30-12, Prudential's Brief in Support of Summary Judgment, 6.) Vastag argues the plan documents do not give discretion to the plan administrator in deciding eligibility for benefits, and that this Court is empowered to review the denial de novo. (D.E. 31-1, Vastag's Brief in Support of Summary Judgment, 20.)

         At oral argument, Prudential acknowledged there is no single document entitled “The Plan.”

There is no document that has been presented by either party here that is titled Employee Welfare Benefit Plan of Graham Holdings.[6]That doesn't exist. There are many cases where that occurs, where employers draft what is called an overall plan or a wrap up plan document. That doesn't exist here. What you have is a bunch of pieces of different information that together make up what the terms are of benefits for this particular set of employees of Graham ...

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