*1 original same cannot be said his decision plead guilty.
Vacated and remanded. MAHER, Plaintiff, Appellant,
Deborah
MASSACHUSETTS GENERAL HOSPI-
TAL TERM LONG DISABILITY
PLAN, Defendant, Appellee.
No. 10-1321. States Court of Appeals,
United
First Circuit.
Heard Dec. 2010.
Decided Dec. change-of-plea hearing, new he receive proceed could sented to us that Ortiz wishes to up to a life sentence on remand. Notwith- appeal. his risk, standing attorney repre- Ortiz’s *2 (the plan “primary Plan” Disability
Term
document”) as
resulting from
complete incapacity,
medically
physical or
determinable
Par-
impairment, as
prevents
mental
any
every
ticipant
performing
employment,
duty
occupation
or
reasonably qualified
he is
for which
education, training
experience.
or
with whom ERISA
J. Rosati
Robert
appellant.
brief for
Group was on
part
Law
was based
This determination
fully described
assessments more
medical
Prince, Lo-
with whom
F. Rubin
Laurie
video
also on covert surveillance
below but
bel,
LLP was on brief
Glovsky Tye&
driving, walking, jogging,
showing Maher
appellee.
over,
kite,
her
lifting
bending
flying
compre-
most
BOUDIN, LIPEZ,
child. The
three-year-old
Before
Dr.
Robert
HOWARD,
Judges.
assessment
Circuit
hensive-
Millstein,
Liberty,
a medical consultant
BOUDIN,
Judge.
Circuit
his
review of Mah-
judgment
based
who
diagnoses
He confirmed
er’s medical file.
nurse,
Maher,
registered
be-
Deborah
fi-
physicians of her
personal
Hospi-
General
at Massachusetts
gan work
osteoarthritis,
psoriasis
bromyalgia,
(“MGH”),
August 2001. Maher
tal
Mah-
prevented
that none
but determined
and, in
in November 2001
working
stopped
working.
er from
receiving disability
began
February
long-term disabil-
through MGH’s
benefits
appeals
pursued administrative
pain and
to chronic abdominal
ity
due
Liberty
ultimately with Partners
Her
symptoms.1
physicians
related
—al-
(“Partners”),
Inc.
System,
Healthcare
“entirely
on the
never
clear”
though
sup-
She submitted
plan’s administrator.
to chronic
her
cause—attributed
materials,
notably
most
March
porting
fi-
pain syndrome or
pancreatitis, chronic
personal physi-
from her
statements
time,
pain
joint
added
bromyalgia. Over
Cuevas,
cian,
and Dr. Wol-
Dr. Elizabeth
woes,
“impres-
and Maher received
her
gastroenterologist.
Goessling,
fram
manage
sive amounts of narcotics”
Maher, de-
represented Dr. Cuevas
negative
some
side ef-
pain, which caused
medications,
“remains
pain
spite
fects.
disability, both from her chronic
significant
pain
the side
February 2007,
and from
effects
Liberty
Assur-
cause,
(“Liberty”),
such as somnolence.
the medication
Company of Boston
ance
duties
reliably perform
unable to
terminated Mah- She is
plan’s
processor,
claims
so
can become so severe
2007 letter
because
er’s
After
June
benefits.
“I
Liberty
quickly.”
Goessling
Dr.
stated
plan language,
conclud-
And
misquoted
any way
my patient
do
see
September 2007 letter
ed in a corrected
peri-
prolonged
to sit or stand for
“totally dis-
able
longer
that Maher was no
physically
of time let alone do
abled,”
“The
od[s]
defined in Section 2.10
intellectually demanding work.”
Long
Hospital
General
Massachusetts
docu-
Disability
We refer to
Long-Term
the "MGH Plan.”
to the MGH
We refer
case,
plan.”
"the
and terms as
technically
in this
ments
the defendant
During
ensuing appeals,
discretionary authority
new doctors
to determine eligi-
independently
bility
reviewed Maher’s files.
benefits
to construe the terms
Malinoff,
indepen-
conducting
Herbert
plan,”
Firestone Tire & Rubber Co.
*3
appeal
Bruch,
dent assessment on Maher’s
within
101, 115,
v.
948,
489 U.S.
109 S.Ct.
Liberty, consulted with Dr. Cuevas and
(1989),
ing
way,
summary
limited
Pro-
jobs sedentary included full-time work as a true detecting signs some of exag- here — nurse, telephonic triage case manag nurse geration and doctor shopping he con- —and er, utilization review nurse. any negative impact cluded that diagnoses On Maher’s side we have of by adaptation narcotics would be alleviated ailments unchallenged medical Partners dosages. to the He also relied on both the statements, explicit already and quoted, by surveillance video and a number of other Document,” materials, and Welfare Plan is not a Sum- summary plan ”constitute[s] the mary Description long-term Plan for MGH's description for each Plan.” disability plan because the lacks document certain information and identifies the Arguably 4. Maher would not suffer such tra- an insurance when is in fact funded as merely strengthen credibility vails of a an trust. But MGH Plan affidavit confirms disability many claim or be so able fool Summary De- document is many years doctors over so if there were little scription, and the document itself describes Barnhart, pain. or no See serious Carradine v. Partners’ role in the administration of several (7th Cir.2004). plans plan among benefits them— —MGH’s it, says together and that with certain other He Maher. of surveillance the video on to which of evidence pieces separate of evidence was little there that said also weight: less more or attach might of her treatment evaluation either by Dr. statement September -a narcotics based impairment claims physician, care Cuevas, primary Maher’s use. restric- not placed had she that stating objec- set impressive fairly This abdominal Maher for tion on that con- aspects are two but there tions from other restrictions aware not re- warrant together, taken us cern doctors; consideration.5 further mand Dr. 2006 record -a November fact rests first, important, and most in- rheumatologist, Reginato, Anthony administra- stage every chills, vomit- denied Maher dicating review- Partners’ Liberty and appeal, tive com- also pain, abdominal ing, inconsistency emphasized doctors ing over having plained limitations self-reported between days; previous apparent not It is video. surveillance had Maher -documentation inconsistency exists. any such to us gas- Goessling, Dr. Wolfram seen activity varied reported that during troenterologist, nausea, her pain, extent on the based first Malinoff, conducted who for activi- pre-medicate opportunity assessment, found independent most spent generally ties, she but that proportion “far out *6 of hours 90 In over bed. days in physically,” abnormality identified evidence damning surveillance, the most surveil- Liberty’s video on relied again minutes identify is 15 can MGH Plan with consulted also Malinoff Dr. lance. or a bucket carried Maher which during Dr. Goessling. Mali- and Dr. Cuevas Dr. during which 30 minutes pot flower agreement Cuevas’ Dr. highlighted noff son three-year-old with her played Maher is no identifiable medical/inter- “there that days of the 19 On 10 park. in prevent which would issue medicine available, nal Mah- video surveillance sedentary or carrying out from days, woman activity. this other On in no engaged er basis,” em- time a full light standing labor or out- sitting shown was Dr. Goess- with disagreement his for about husband phasized with her house side symp- self-reported on Maher’s ling’s focus minutes. 20 toms. surveillance, far from of Thus most to disability, seems inde- contradicting the last Maher’s Hashimoto, conducting
Dr. house- generally lifestyle as assessment, discredited confirm pendent activity. occasional, limited sup- submit failure to bound on her based pain vig- more slightly periods from her the brief disability For porting evidence pre-medi- may have activity, Maher clinics; Dr. emphasized orous treatment having simply been may have about cated to Dr. Malinoff statement Cuevas’ con- which would day” an inability pinpoint “good physicians’ —either Of limitations. reported with her sistent discred- symptoms; of her cause anatomic by been housebound course, may have she his due to opinion Goessling’s ited But question. the critical choice—that 2006; relied to treat Maher failure Disability Ben- Long Term Co. Co., Leger v. Tribune F.3d 426 Ins. Buffonge v. Prudential 5. See Cir.2009). 823, (7th Cir.2005); 557 F.3d Majeski (1st v. Met. 20, 31-32 Life efit Cir.2009); (7th Co., F.3d Ins. analysis from a in which a video fully justi- this is far situation confident its conclusively disproves disability claim.6 fied its decision. upheld judgment
This court earlier termination district court is credibility where claimant’s of benefits vacated and the matter remanded question sporadic by called into surveil- district court so it allow Partners to activity. capturing provide lance limited Cusson conduct such further review and Co., Liberty Assurance further explanation and information (1st Cir.2010). fit, But 228-30 there the vid- providing oppor- as it sees Maher a fair specifically con- tunity respond eos showed activities such supplemen- claims made the claimant as tradicted tation the administrative record. We spent her time and what ac- how she are not benefits reinstating merely could Id. at remanding tions she tolerate. 225. We administrator weight given cautioned case further consideration of the claim and adequate surveillance these de- explanation, expect sorts cases more but we pends on the both amount and nature proceedings pro- further Partners to activity Id. expedition. observed. ceed with Each party to bear costs. own video, the main
Apart objective from on by fact relied Partners was Maher’s so It is ordered. provide supporting
failure to
evidence
LIPEZ,
Judge,
disability
from her
clinics. But Mah-
Circuit
dissenting.
explained
attempts
er
to obtain docu-
majority correctly
identifies the
clinics
mentation
those
and offered
issue”
in determining
“double
we face
both
to allow the MGH Plan to
releases
applicable standard of review in this case:
access the information and to submit to first, whether Massachusetts General Hos-
examination
a doctor of the MGH
(“the
“MGH”)
pital
Hospital”
is ex-
choosing.
appears
Plan’s
It also
that two
*7
pressly
Long
authorized
the MGH
were
of the three
clinics
MGH-affiliat-
(“the Plan”)
Disability
Term
Plan
to dele-
ought
been
ed so the information
to have
gate
benefits,
authority
to determine
accessible.
second,
and,
MGH in
fact made
end,
In
Plan
delegation
the
the MGH
was entitled
such a
the
to
administra-
tor,
to be
the claimant has a
Partners
skeptical:
System,
stake
Healthcare
Inc.
(“Partners”).
outcome;
the
treating
My colleagues
“yes”
and the
doctors do
answer
purport
explain
degree
to
the
of
questions.
each
those
In so conclud-
to
however,
But
fail-
ing,
they disregard
claimed.
the video evidence and
precedent
our
ure
clinic
produce pain
requiring
information
a clear
statement
the authori-
say
ty
delegate,
respect
seem overstated. We cannot
with as-
fail to
the limits of
the
Plan
pertinent
language,
surance that MGH
denied Maher
the
Plan
uncriti-
entitled,
cally accept
benefits to which she was
but
Partners’ declaration
fidu-
according
ciary authority
even
deference we are also not
in-
despite
assertion’s
Director,
2006) (claimant
E.g.,
complete inability
reported
Oldrich
Workers
Office of
(9th
Programs,
Comp.
I.
modified,
review,
amend-
novo
or be
de
ed,
by any judicial or admin-
or set aside
the termination of her
challenged
in the absence
istrative
Employee
502 of the
under section
benefits
convincing
evidence
clear
Security
Act
Income
Retirement
ca-
arbitrary and
Hospital’s action was
1132(a)(1)(B).
(“ERISA”),
§
29 U.S.C.
rational basis.
pricious or without
a standard of
prescribe
does not
ERISA
“Hospital”
fill
gap,
To
this
defines
review for such actions.
document
Hospital Corpora
that a denial
has held
mean The General
Supreme
Court
tion,
organiza
under
section
charitable
challenged
a Massachusetts
of benefits
1132(a)(1)(B)
novo
Because
be reviewed de
member is MGH.
should
tion whose sole
grants
Hospital
the adminis-
gives
provision
the benefit
the above
“unless
fiduciary discretionary authority
discretionary authority to administer
trator or
“full
de
Plan,”
for benefits or to
“the
eligibility
including
to determine
Firestone
con
plan.”
eligibility
[and]
the terms of
termine
for benefits
construe
*8
Bruch,
101,
conditions of
Rubber Co. v.
489 U.S.
the terms and
Tire &
strue
(1989).
948,
115,
Plan,”
by
L.Ed.2d 80
MGH would
109 S.Ct.
103
a benefits decision
authority
given,
our review
under the deferential
typically
such
be reviewed
Where
111,
deferential,
Fire
“arbitrary
capricious”
id. at
109 S.Ct.
and
standard.
is more
948;
stone,
115,
948,
upheld
will be
109
Cus
a benefits
489
at
S.Ct.
and
decision
U.S.
son,
or an
“arbitrary, capricious,
it is
297 Johnson, 11, Hospital, and vari lace v. 585 Brigham and Women’s Johnson & F.3d (1st organiza hospitals Cir.2009), and medical ous other 15 our court placed little together, closely bound tions. However emphasis on the statute’s reference to del question no that Partners though, there is is, egation “procedures.” That we do not enti Hospital legally are distinct require plan that a any proce establish ties, argue the Plan does not governing delegation beyond dures a basic discretionary authority on the conferred grant authority delegate to itself. be to Hospital imputed should Partners.7 (“Our See id. delegation own cases treat Co., 1 v. Metro. Ins. Fed. Glotzer Cf. delegation ‘authority’ ‘procedures’ Cir.2001) (9th 740, (holding 742 Appx. more or less the thing....”). same How corporation because successor inherited ever, to “expressly the statute’s reference admin rights plan full the and burdens providing]” delegation procedures means purchase, dele through istrator discretion grant authority delegate gated plan imputed administrator was clearly must be stated. This is consonant successor). both requirement with the that the initial
Instead, the Plan contends Partners grant discretionary authority by plan discretionary authority validly exercised unambiguous, Terry Bayer Corp., see v. delegated
that had been
to it
Hospi
(1st
28,
Cir.1998);
Rodriguez
tal. ERISA
that a
fidu
provides
named
-Abreu,
F.2d at
our case
ciary may
responsi
to others its
delegate
law examining plan language
au
granting
plan
than
bilities under a
trustee
—other
thority
delegate.
plan expressly
responsibilities —where
Wallace,
we found a
delegation
valid
procedures
doing
sets forth
for
so. 29
discretionary
authority where it was
1105(c)(1); Rodriguez-Abreu
§
U.S.C.
“clear”
plan
“pur-
that the benefits
at issue
Bank,
Chase Manhattan
F.2d
port[ed]
delegation.”
to allow
585 F.3d at
(1st Cir.1993). To determine whether a
language
The relevant
of the plan
delegation
authority
place
valid
took
“may
stated that the fiduciary
‘[djelegate
here,
majority’s
we must address the
“dou
Plan,
its
established’
‘des-
(1)
ble
the Plan authorized
issue”:
ignate persons
carrying
to assist
out
Hospital
delegate
duties,’
fiduciary
‘allocate
responsibility
(2)
so,
Partners
if
whether there is
operation
and administration’ of the
delega
evidence of the claimed
adequate
‘[ajppoint persons committees
authority.
tion of
to perform
assist it
its duties’
under
Delegation
A.
Authorized?
Was
Plan.”
Id.
14-15. We reached the same
in Terry,
conclusion
where the
stated
fiduciary may delegate
A
its fidu-
“
appoint
Company may
one or
responsibilities
‘[t]he
ciary
party
to a third
behalf,
more individuals to act on its
plan “expressly provide[s]
where
*9
every
which
herein
procedures”
delegation.
for such a
case
reference
made to
1105(c)(1).
§
explained in
the
shall be
Company
U.S.C.
As
Wal-
deemed to mean or
suggesting
sophisticated litigant,
thought
majority
7.
the
the
is
that
the
a
To
extent
argument
the Plan’s
for deferential
is
review
relationship
such a view of the entities’
was
strengthened theory i.e.,
this alternative
viable,
presumably the
it
have made
—
and
that MGH
Partners are affiliated entities
relying solely
approach
claim to avoid
on an
delegation
unnecessary—
is
between whom
majority
justified
that even the
considers
suggestion
gratuitous given
is
the
the
margin.”
"perhaps
by a modest
Moreover,
theory.
Plan did not
the
offer
if
role in
fiduciary under
for its
de-
matters within
ERISA
as to
individuals
include the
”
benefits,
the claimant
we drew
nying
F.3d at 37-38.
jurisdiction.’
their
types
these
of
sharp distinction between
language
cases,
the
these
In
of
each
providers],”
service
the
party
“third
in its
unqualified
unambiguous and
hand,
and the
administrator and
authority
delegate.
grant of
fiduciaries,
at
on the other. 145 F.3d
35-
contrast,
be
Here,
cannot
in
the Plan
36.
plenary
delegation
authorize
read
Processor”
The reference to a “Claims
the Plan to
authority over
administrative
Hospital may
the
the
agents
as one of
provision
The most relevant
Partners.
limited nature
the
employ reflects the
document,
empha-
the one
Plan
the
6.3, and,
by Article
delegation authorized
Plan,8
as follows:
by the
reads
sized
critically, that it
not include
ulti-
does
Hospi-
Agents.
Employment
6.3.
eligibility
authority to
for
mate
“determine
not
agents, including but
may employ
tal
or to
the terms
benefits
construe
Processor,
to,
account-
a Claims
limited
authority
triggers
deferen-
plan”—the
ants, attorneys
perform
or actuaries to
Firestone,
489 U.S.
tial review.
in connection
duties
such services
A
processor general-
948.
claims
109 S.Ct.
it
the Plan as
the administration of
makes the
on a
ly
initial determination
be
Hospital shall
may direct....
may
claim and
handle
first
benefits
in
the advice
fully protected
acting upon
entity is
appeals,
level of
but another
usu-
or in
agent,
in whole
ally responsible making
for
a final determi-
part....
instance,
appeal.9
typical
In
nation
Terry
plan language
Unlike the
entity
“an
we have thus noted that
which
Wallace,
authorizes no
provision
here
merely processes
fiduciary
claims ‘is not
discretionary
devolution of the
complete
person
not have
because such
does
discre-
under
authority granted
Hospital
authority
discretionary
tionary
control
”
Rather,
of the Plan.
Article 6.3
Article 6.1
respecting
plan.’
management
Hospital
agents,
“employ”
allows
(quoting
Terry,
299 authority System, llers Inc. discretionary to administer the Healthcare Health and (the Welfare Plan Document” “Partners Plan, limitation the au- including without Document”), Plan which the Plan charac- benefits, eligibility to determine for thority Summary terizes as a Plan Description the and conditions of the construe terms (“SPD”). document, published The under Plan, disputes the inter- and resolve as to name, to purports wrap- Partners’ be “a of the Plan documents.” pretation plan around document that contains the I to author- Accordingly, read Article 6.8 definitions, participation administra- delegation ize of administrative functions provisions tion various the Partners authority Hospital’s short the core to plans,” health and welfare which includes eligibility “determine benefits” and the Plan at well forty issue here as as over the “construe terms and conditions the others, incorporates by “and reference the 10 minimum, provision At a if Plan.” this various Benefit Contracts associated delegation permit were intended to the complete the Plan form a docu- totality Hospital’s discretionary the of the language ment.” supposedly effecting The clarity. authority, requisite lacks the Cf. delegation, II, the located in Section Arti- (“[T]he grant 37 Terry, F.3d at Document, cle IX of the Partners Plan clear.”). authority discretionary must be I states, simply acts “Partners as the Plan not thus conclude that Article 6.3 did au- purposes Administrator ERISA of the Hospital’s delegation of discre- thorize Plans.” The Partners Plan fur- Document However, authority to tionary Partners. ther provides Administrator, as Plan below, Plan per- even if the discussed Partners “has the discretion to determine such delegation, mitted the evidence that a all relating eligibility, coverage matters delegation place inadequate. took and benefits under Plan” each and “has the full power interpret each Plan and is Delegation B. Did a Occur? responsible for operation of each Plan.” Plan of a The asserts evidence dele-
gation of
can
authority
Partners
be
Our
involving delegation
cases
of fiducia-
ry
in a
“Part-
authority
directly
found
2005 document entitled
under
do
ERISA
not
cialists,
relying
Pettaway
10.
persons
v. Teachers Insur
nec-
and other
as it deems
America,
Annuity
essary
ance and
Ass’n
F.3d
or desirable in connection with the
(D.C.Cir.2011),
proposition
for the
administration of the
[Plan
Plan.”
Docu-
authority to
decisional
determine benefits can
at 3.2.
ment]
plan language,
majority
Thus,
be inferred from
Pettaway,
F.3d at
unlike the
seriously
take
fails to
the "clear statement”
Plan, delegation
MGH
under
in Pett-
law.
standard
our case
Whether or not the
away
"agents”
was not limited to
whom
Pettaway
language in
would meet that stan
supra pp.
administrator
“direct.” See
dard,
language
here does not.
Petta
Instead,
Pettaway
297-98.
administrator
way
plan provi
court described the relevant
authority
delegate
had broad
administra-
as follows:
sions
responsibility
tive
to others
whenever such
necessary
Document,
transfer of duties was "deem[ed]
in the
the "Acad-
As stated
Plan
desirable.”
emy shall be the
Plan Administrator
language
The limited
ren-
in the MGH Plan
Fiduciary'"
‘Named
with the "absolute
majority's
ders irrelevant the
power, authority
observation
and discretion
adminis-
lawyers,
accountants
[Academy]
Plan.”
and actuaries
ter
Plan Document at
3.1,
assigned fiduciary
interpretations
3.2. "All
duties.
issue here is
professionals
questions concerning
its administration
whether such
are consid-
fiduciaries,
application,
clearly
shall be
ered
this
determined”
Academy,
delegation
which has the
endorsed
to make
accountants, counsel,
"appoint
spe-
final benefits determinations.
*11
evi
301 an agreement Hospi- between the control if the dence of claimant “sig- demonstrates Partners, corporate tal and resolution nificant or reasonable reliance” on the SPD). Thus, Hospital, or such the other documentation to the extent that the Part- Hospital that SPD, that indicate the affir- ners Plan qualifies Document as an granted the matively discretionary authority grant discretionary authority the Plan Partners. Plan over the document must be still credited over conflicting grant the in the putative SPD.13 arguing In the over the effect of Part- Document, sum, parties vigorous- ners Plan the the Plan its terms did not ly dispute properly qualifies Hospital whether it as authorize the to delegate its au- and, question an thority, SPD the Plan.12 This is even if Plan permit- the had here, that not be as ted nothing delegation, need resolved there is insufficient it. if the the Hospital delegat- turns on Even Partners Plan evidence that in fact SPD, ed qualified authority Document as an there its to Partners. Partners’ denial a direct of Maher’s benefits primary would be conflict with the must therefore be de Plan must reviewed novo. document that be resolved in favor. Each the Plan document’s docu- II. full purports grant discretionary ment authority power over the with the In a novo de review a benefits deci decisions, sion, binding” given] make “final and to a “no deference [is adminis entity. opinions different Where there is conflict trators’ or conclusions based SPD, between the[ ] facts.” v. Paul Revere Orndorf control, Co., (1st generally except 510, will in Ins. language Cir.2005); 404 F.3d 518 relied see beneficiary situations where the also Richards v. Hewlett-Packard (1st 232, Cir.2010) Ringwald Corp., her detriment on the SPD. See F.3d 239 592 (same). Am., Instead, v. Co. independent Prudential Ins. F.3d an review of (8th Cir.2010) 946, (disregarding 948-49 evidence the administrative record discretionary grant authority ap- that must performed, Orndorf, 404 F.3d at Richards, only SPD); 518; peared 239, Pruden- Schwartz v. 592 F.3d at and the Am., tial Co. “guiding principle” Ins. 699-700 is that the plaintiff (7th Cir.2006) (same, disabled, that bears explaining proving the burden of he is participant detrimentally Orndorf, SPD controls if F.3d at 518-19. To meet it); burden, relied on that Raytheon require Mauser Co. terms of the Plan cf. Emps., prove “complete Pension Salaried 239 Maher to incapacity” (1st Cir.2001) (where F.3d 54-55 preventing performing SPD “from terms, plan’s every any occupation with a SPD duty employ- conflicts will argues length at some that Part- cites the Partners Plan Document as evidence fails to all ners Plan Document include cate- Hospital delegate was authorized to gories required by of information statute to be discretionary authority. But a asser- bare 1022(b). present § in an SPD. See U.S.C. putative delegee tion of is The Plan counters that Partners Plan Doc- delegation meaningful even proof less explicitly ument states was authorized than it is as that a evidence “collectively several documents that consti- effect, delegation in fact occurred. In the ma- summary plan description for tute the each jority assumes that Partners’ assertion that it Plan,” implying those additional docu- given had is evidence that it was supply missing ments information. authority. reasoning Such circular illogical unpersuasive. both majority 13. The to confront the inconsis- fails indeed, tency between documents *13 her treat- reasonably quali- is narcotics.” Over course of ment, which [she] for ment, education, training experience.” pain or by Maher has consulted several fied scope has of periodically changed The Plan narrowed clinics and medi- occu- by specifying the inquiry cations, somewhat records no success but her reveal it believes Maher to be for which pations use of scaling painkill- back the narcotic nurse, triage nurse telephonic qualified: Malinoff, Dr. According ers. Herbert utilization review nurse. manager, and doctors, case Liberty’s consulting one of Mah- diagno- supports er’s record of treatment arguments on merits of of relative to dependency sis “chemical fall into two Plan’s benefits determination opioid Benzodiazepine long over a use First, argues Maher that her categories. period of time.” her of incapable renders use of narcotics jobs for any of filling the above-mentioned use, drug that as a Maher contends her “education, qualified by train- she is law, working matter prevents of her from support this experience.” ing, or nursing, job within field of law that argument points pur- she to state precludes employment thus in the one area performing from prohibits her portedly education, qualified by for which she is under influ- any nursing duties while notes, experience. Maher training, As Alternatively, sub- ence of narcotics. she Massachusetts’ Standards of Conduct that, aside, legality the effects of her mits prohibit prac- licensed nurses nurses from her impair judgment medications ticing impaired.” “while 244 Mass.Code ability to perform and interfere 9.03(36). Regs. § argues Maher that the Second, Maher nursing duties. contends Liberty roles sedentary nursing has supports disability the evidence suggested capable filling she would be caused, nausea, pain by chronic all necessarily “practice” involve the wrongly and that Partners discounted evi- to include nursing, defined statute and extent dence of manner to which “coordination and of re- management function. pain ability affects her delivery.” sources for care Mass. Gen. arguments in I address each of these 112, § Laws Ann. ch. 80B. Because she is turn. “therapeutically addicted to narcotic medi- cation,” suggests legally she Disabling A. Effects Narcotics Use “impaired” and cannot above serve Maher’s medical records confirm positions.14 nearly decade, Maher has treated Though segregate Maher tries this array powerful with a nar- varying reasoning line of alternative ar- cotics, taken usually multiple and she has gument that the effects of medications at the and in drugs significant same time letter, ability carry would interfere with her In a Dr. doses. Elizabeth out the Cuevas, doctor, nursing job, they duties of cannot care not- primary easily disentangled. be so The fact of patient that her ed is “treated with narcot- not, itself, doses,” prescribed very high appear that are narcotics use does ics preclude function Goessling, legal and Wolfram Maher’s treat- as a nurse. ing gastroenterologist, similarly governing regulations “impaired” noted define inability nursing mean impressive practice Maher “takes amounts of “the 14. Because I by Liberty dispose argument nursing Maher's identified involve the roles "impaired,” "practice” nursing based on definition of I do Massachusetts under sedentary not address law. her contention judgment, skill, with reasonable and safety phine she was taking made her “loopy and abuse, reason of alcohol or drug use of sleepy more than usual.” Her medical substances, physical or mental illness or reveal records that she was started on condition, by any combination of the morphine only a couple days prior, when § foregoing.” Regs. Mass.Code 9.02. she was admitted to the hospital for ab- Thus, whether Maher “impaired” turns dominal pain and the recom- clinicians *14 not on whether she is addicted to narcot- mended she transition from OxyCon- ics, but on a factual determination of tin. narcotic likely her use to inter- Overall, I do not convincing find support “judgment fere with her skill.” [and] Id. in the record for the proposition that Mah-
The evidence of the effect of use, drug itself, er’s by would render her narcotic use on ability her incapable concentrate working one of the seden- is, and function is mixed. There tary to be nursing positions by identified Liber- sure, an logic intuitive to the notion that ty. There is no prohibition clear in Massa- we should wary be of entrusting patient chusetts on serving as a nurse while on a care to professional a medical who takes medically prescribed regimen narcotics, large amounts of narcotic medications. long so as the drugs do not impair This is a point that Maher emphasizes in “judgment, skill, nurse’s and safety.” briefs, her and it has some basis in fact. Maher’s doctors have suggested not Medical authorities warn that narcotics of drugs use would interfere with her sedation, cause “mental clouding,” judgment ability or to make rational deci- impaired psychomotor function.' Indeed, How- sions. Dr. Goessling and Dr. Cue- ever, according to a publication of the vas identify both excessive sedation to be American Medical Association included in major side effect associated with Mah- the administrative record, types these er’s medication. I acknowledge that Dr. side “usually effects dissipate with contin- Goessling opined that he “cannot imag- treatment, ued normally within a week ine that it would inbe [Maher’s] soci- with regularly scheduled dosing, and ety’s stud- benefit have work aas nurse ies have demonstrated that patients most making decisions over other people’s opioid chronic safely lives,” can therapy drive but he does point specific Liberty’s ears.” One of consulting physi- effect of the drugs that would Mah- render cians, Millstein, Dr. Robert makes er incapable of safely managing the limited point same in his February report, nursing roles suggested for her by Liber- though acknowledges “very he few ty. studies
have examined the effects of opioids on I am not unconcerned the possibility selective, divided, and sustained attention.” that narcotic-related sedation would make
Maher’s medical records indicate that it difficult for Maher to complete regular she has complained often of the sedation workday. In one in 2005, instance brought her regimen of reported narcotics. the somnolence associated However, close scrutiny these records with change OxyContin to Palla- indicates that many of reports of som- done causing her to take naps three nolence and drug-related other side per day. effects Such considerable sedation are change correlated with a in medication would clearly interfere most if not all an adjustment of dosage. To possible employment. take However, because example, Maher saw Dr. Goessling in reports of drowsiness and other March complained 2005 and that the mor- adverse effects from appear medication must be drug Our focus instead on whether to alterations
largely related supports inability an due to the medical evidence to work conforms regimen —which pro- physical imposed by effects are most “the limitations that side evidence ” narcotic—I illnesses.... Board starting first nounced when Am., Mah- convincing Ins. Co. see evidence man Prudential do not Cir.2003). 9, 16 (1st exercise ability concentrate and F.3d n. 5 er’s compro- significantly judgment upon by Relied the Plan Evidence program and stable regular mised narcotic medications. begin by assessing I the evidence view in the calls Maher’s Disabling and Other B. Effects Pain question, limitations foremost of into Symptoms inconsistency is the alleged between *15 re- conclusion with reported capabilities I reach a different Maher’s and the level symptoms impact activity the Lib- spect the confirmed surveillance. nausea, pain, erty Maher’s maladies —chronic Maher on conducted surveillance of intolerance —on vomiting, and food days nineteen and between October 2002 After review of ability to work. careful 2006,.portions October of which were re- record, that evidence persuasive the I find on The Plan and its doc- corded video.16 symptoms prevent Maher’s would highlighted examples tors a handful of jobs the performing duties activity by captured increased Maher in by Liberty. identified occasion, one Maher the surveillance. On walking was observed to the front of her this is evaluating Before the record on property “carrying appeared what to be a sue, my I note concern lies with that here bucket,” flower/plant large and a four limitations the evidence of attributable later, minutes walking back with the same symptoms, and not with another, On she a bucket. drove herself underlying supports the evidence (a drive) short distance four-minute medical There considerable conditions. school, local where she went inside and uncertainty regarding etiology of Mah (then son carrying returned close complaints, abdominal and other er’s old), years placed three whom she inside attempting question to resolve a that departing the car before for her home. stymied past multiple has doctors for a third On occasion—and one on which unnecessary beyond my decade is both places the Plan the most emphasis diagnosis expertise.15 makes little dif —Mah- husband Maher to a drove and her son court er’s emphasized ference here. Our Saturday morning. local soccer field on a hard-to-diag dealing before in with There, nose, conditions, periodically Maher “was pain-related rea observed is not require objective as she her husband a kite with expect sonable or evi flew young boy,” jogged supporting beneficiary’s dence claimed as she “walked and field,” diagnosis. Assur around the “at Liberty See Cook soccer and as she Cir.2003). Co., (1st 11, swung point boy ance lifted the small focus," Goessling, syndrome gastroenterologist per 15. Dr. a trained abdominal with Malinoff, and Associate Professor of Medicine at Har- fibromyalgia, per Dr. Millstein. School, vard Medical continues to believe likely Maher’s abdominal are most 16. This included six days in of surveillance pancreatitis. caused chronic The Plan's 2005, days days three and ten in disagree, record doctors but concede that the supports diagnosis of either "chronic activity level of on outing dependent around her arms.” the ebb and him thirty-four minutes. It symptoms. flow of her lasted be unusu- al for a mother of three children to be able surveillance.evidence does not have This activity. to avoid all that the Plan ascribes to significance she activity questionnaires sub- it. regard With to the kite-flying episode, consistently Liberty, mitted to Maher re- strays the farthest from Maher’s activity the level of she can ported limitations, reported Maher has indicated on entirely dependent pain, sustain outing “special event” for nausea, and For ex- level of medication. premedicated which she with morphine. ample, questionnaire, her latest dated circumstances, In other explanation this indicated that Maher September Here, however, might credulity. strain sitting, of time she can tolerate amount the notion that premedicates standing, riding driving a car prepare for activities that trigger pain nausea, pain, depends presence support predate finds in records that also vomiting, and diarrhea. She noted activity incident.17 In a March 2003 ques- during she leaves the house week tionnaire, for example, Maher noted that (one day to three to two two times times she plane “pre-medi- travels she days), helps weekend and that take *16 cation pain and nausea from increased perform of her children and small care pressure cabin on Sep- abdomen.” her when chores she is able. questionnaire, tember 2006 Maher also out, majority points Liberty’s As the ability carry noted her to out various is not inconsistent with Mah- surveillance daily “always depend[s] activities of life on own er’s account of her activities. Over how pain much I use ... help medicine to surveillance, days there nineteen were a myself.” Moreover, the entire outing at days number was con- brief, very lasting athletic fields was firmed to be at home and never left the just over half an It hour. would be unfair days, she left residence. On other to read too much episode into short passenger driving house—either as a increased activity, given consistency run herself —to a limited number of er- larger record of surveillance with Mah- rands, mostly up or picking dropping off reported capabilities. er’s school, children at and once to go Turning to an evaluation of the medical at dinner a restaurant. She was also ob- limitations, opinions concerning Maher’s outside on served two brief occasions in- my again diverges conclusion from that of generously in what volved could be de- Among the Plan and its doctors. yard carrying as a Maher’s scribed chores: flower doctors, occasion, treating is thin sitting support there pot another to a capacity sedentary job. of her truck to return holding bed husband’s a appeared or rake husband most direct evidence is found in a broom while her cleaning activity questionnaire, All of this Dr. up. completed Hay- to be Gale dock, description indicating consistent with her of a low that Maher is per- “OK to that, can, pain. top district court concluded assum- The fact she of this ing background outing family dosage, pain with her Maher’s can take additional med- explained by premedication, during pain "it is a rea- ications to ward off occasion- pre- episodes activity could al sonable inference that she also short of increased does sedentary job.” perform suggest not medicate to a I can- that it would be feasible for her agree. large regularly take not Maher takes amount of extra medication to make it daily through eight-hour workday. background an narcotics address cause,” However, Dr. medication and that she sedentary duties.” form once, in the be- reliably perform treated Maher “is unable to duties Haydock was admitted when Maher winter of can so severe so cause become days to treat hospital for several to the quickly.” Dr. and thus pain, of abdominal flare-up opinions Lastly, the record also contains to observe no Haydock opportunity had by the the three doctors retained from time. symptoms over course of Maher’s Millstein, Malinoff, and Dr. Plan —Dr. Dr. has, also, read the Plan could One Hashimoto, Occupational Dean Chief primary Maher’s statements various Environmental Medicine at MGH— (Dr. Cuevas) support physician care concluding that the does available evidence sedentary ability perform Maher’s inability to support claimed in a conversation notably, work. Most sedentary job. opinions I work find Malinoff, stated her Dr. Dr. Cuevas with by these unpersuasive. rendered doctors opinion MalinofPs agreement with Dr. degree relied a significant Each doctor per- purely “from a internal medicine evaluating on the surveillance records physical there is no identifiable spective, capabilities, focusing epi- on the abnormality anatomic/laboratory exam or activity finding sodes of detailed above and working prevent that would [Maher] inconsistent Maher’s claims. them sedentary level.” very minimum at a Dr. inter- Dr. Malinoff and Hashimoto also awkwardly is tech- precise This statement sup- preted Cuevas’s statements as is, undoubtedly, an accu- nically true and ability portive of Maher’s to return medical reflection of Dr. Cuevas’s rate stated, For the I have work. reasons It also mislead- opinion.18 transparently contrary reached conclusions based on make clear ing. Maher’s medical records *17 Dr. Hashi- Additionally, same evidence. identify a that no doctor has to been able accepting observed even moto abnormality that or anatomic physical veracity symptoms, of Maher’s reported However, ab- symptoms. causes her attempt has been no to evaluate there diagnosed of a medical condition sence scans, “through neuropsych testing, or oth- says nothing reliability about of Mah- available means” extent to which er reported complaints er’s whether pain Maher’s and of narcotics affect use prevent working. On symptoms her from This cognition ability and to function. opinion is questions, those Dr. Cuevas’s attributed, degree, failing can be to some In March unequivocal. a letter dated an pursue to the Plan’s not to 2007, “re- decision Dr. Cuevas wrote that Maher medical of Maher significant disability, independent from evaluation mains both pain her chronic from the side effects to assist the assessment of her claim.19 conversation, Following certainly suggested their Dr. Malinoff have its 18. stances should 2004, recapitulat- to early mailed a letter Dr. Cuevas that utility. coun- As Dr. Millstein ed the substance of their conversation important it is "[i]f seled that felt to be sign accuracy. verify asked that she impairment ascertain due to abdomi- Dr. She did so and the letter to returned exists, pain suggest nal I consideration Malinoff. of functional assessment some alternative denied, After her been means.” benefits had Indeed, 19. I find the Plan's failure to conduct available Maher even offered herself to make independent an medical examination some physical a doctor of the for examination troubling. requirement what There is no Plan’s choice. reflects record arrange for a medical administrator internally Plan's administrators discussed benefits, prior terminating see examination possibility independent of an medical exami- 526, Orndorf, 404 F.3d here the circum- Nevertheless, below, taking pletely any as I I find the foods.... discuss solid ... [L]et suf- me assure that I [¶] of Maher’s limitations do see record evidence way patient sug- my would be able testing absent the sort of ficient even prolonged to sit or stand for periodfs] of Dr. Hashimoto. gested by physically time let alone do or intellectu- Supports The Evidence ally demanding work. Limitations there is While some evidence Viewing totality Goessling actively of the medical evi- did not treat Maher in record, 2007, am repeatedly dence in the administrative I 2006 and he saw her symptoms years persuaded prevent preceding appears and she reliably prior of have consulted with him his writ- performing her from the duties ing quoted letter job. At above.20 sedentary nursing the fore opinions that evidence are the of Maher’s opinions These echo Maher’s own as- doctors, treating Dr. Cuevas and Dr. sessment of her limitations. In an affida- noted, Goessling. As Dr. Cuevas’s assess- vit, Maher stated that she “cannot be ment as March 2007 was that Maher anything,” counted to do because her significant disability” “is “remains symptoms unpredictably come on reliably perform unable to duties because in “excruciating leave her pain” that “is so become pain quickly.” can so severe so bad that sucks the wind out [her].” Similarly, Dr. who Goessling, has followed subjective Though and thus diffi- of her Maher since onset abdominal document, reliably cult to her character- opined in late in a 2007 appears ization to be borne out letter: From record. late she has consis- status, tently complained her current Mrs. Maher is of intermittent and se-
barely provide able to herself and vere abdominal pain. complaints Her during 3-year-old day. enough son She have been credible to convince the pro- or walk is not able stand numerous have doctors who seen her that longed periods suffering of time. She is she needs serious narcotics to relieve her only par- from constant nausea that is allow her function. While we *18 ... tially might suspect drug-seeking relieved her medication. tendencies in circumstances, to She has intermittent diarrhea due such the record does not pancreatic early from lack of An malabsorption reveal tendencies. note enzymes by constipation Goessling followed caused from Dr. indicates that Maher high “quite her doses of narcotics medi- was reluctant to take pain medi- cations,” top multiple cation. On of her chronic abdominal and there are indications exacerbations, pain, has in frequent she later records of her desire to move off pain regular often this her eom- of the Even with prohibit[s] painkillers.21 [and] her September edge of nation in declined Maher's condition at the time of writ- due, ing. pursue part, in to concern for slow- ing process. down Still, sincerity mixed record is as to the use, of Maher's desire to discontinue narcotic letter, 20. The addressed to Maher's case man- pain has treatment with a she twice started ager Liberty, begins, up- “I would like to up. and then to follow She clinic failed as- condition, you espe- date overall [Maher’s] her reluctance to continue cribes treatment at light cially of the denial in recent letter interpersonal the clinics to with the conflict received,” sug- implicitly her benefits she clinic, feeling at one and a doctors gesting Goessling had current knowl- program type of clinic offered other work, narcotics, frequent result absences heavy Maher’s ab- regimen of repeatedly brought prohibitively disruptive her of which would be dominal room, regular where she was emergency any employ- to maintain attempt mul- two occasions for suggests on at least admitted ment. Surveillance also that her manage her stays pain. tiple-day background level of is sufficient keep fre- her housebound some of thus be record treatment Maher’s or limited quency, permit levels of debilitating pain. speaks significant activity. Though occasionally professionals of medical Given number errands, run contribute household and found who have examined chores, family recreate with her even ques I have no reason to genuine, distress time, sharp for short there is a periods pain. reality of this As the Sev tion the person’s being “difference between able Barn noted Carradine v. enth Circuit engage physical (7th Cir.2004): sporadic activities hart, F.3d 751 eight and her to work being able hours is the significant improbability What is day days five of the consecutive week.” under- claimant] have [the balance, Id. On I conclude that the evi- procedures that gone pain-treatment dence that Maher cannot demonstrates re- ... did, heavy included doses she liably perform the duties of full-time ..., in order to strong drugs merely sedentary nursing job. credibility of her com- strengthen so plaints pain and increase her benefits; obtaining disability chances III. improbability that she is
likewise actress to a host of good enough fool close, Based on a de novo review the emergency-room personnel doctors record, persuaded I am administrative thinking pain; she suffers extreme into and related symp- abdominal lesser) (perhaps improbability effectively prevent toms her “from per- host of medical workers would that this forming every duty any occupa- prescribe drugs and other treatment tion or for which employment, [she] they thought faking if she were education, reasonably qualified by training symptoms. Such an inference would Hence, experience.” I believe we must to an accusation that the medi- amount beyond go vacating the district court’s [the cal who treated claimant] workers grant judgment in favor summary behaving unprofessionally. were entry judgment remand for (internal omitted). Id. citation I at 755 I therefore dissent. favor. reports credit Maher’s of abdom- therefore *19 gas-
inal and note as well that her pain, symp- and food intolerance
trointestinal readily are more verified—
toms—which support
find numerous records.
I similarly find the evidence sufficient to claims that
corroborate Maher’s these ability
symptoms would interfere with her recurring attacks work. acute would, minimum, abdominal appropriate ish the of the evidence was not for her. Her lack of overall force follow-through regard pain. in this does not dimin-