Flowers v. Hartford Life and Accident Insurance Company

UNITED STATES DISTRICT COURT EDLOECC #T:R ONIC ALLY FILED

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/31/2 023

KERRI FLOWERS,

1:21-cv-05388-MKV

Plaintiff,

MEMORANDUM OPINION

-against- AND ORDER GRANTING

DEFENDANT’S MOTION FOR

HARTFORD LIFE AND ACCIDENT SUMMARY JUDGMENT AND

INSURANCE COMPANY, DENYING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT

Defendant.

MARY KAY VYSKOCIL, United States District Judge:

This is an ERISA dispute. Plaintiff Kerri Flowers seeks judicial review of the termination

by Defendant Hartford Life and Accident Insurance Company (“Hartford”) of her long-term

disability benefits under an ERISA-governed welfare benefit plan. Both parties move for summary

judgment. For the following reasons, Hartford’s motion for summary judgment is GRANTED and

Flowers’ motion for summary judgment is DENIED.

BACKGROUND

Flowers is 51 years old. Plaintiff’s Local Rule 56.1(B) Response to Hartford’s Statement

of Facts ¶ 1 [ECF No. 60] (“Def. 56.1”).1 She has a bachelor’s degree and possesses “semi-expert”

computer proficiency. Administrative Record 908 [ECF No. 55] (“AR”).2 Flowers was most

recently employed by Duane Reade as a Regional Human Resources Manager. Def. 56.1 ¶ 2.

Through her employment, Flowers was covered under a group long term disability (“LTD”) policy

governed by ERISA (“the Policy”). Def. 56.1 ¶¶ 5, 6. The Policy was issued and administered by

Hartford. Def. 56.1 ¶ 7.

1 Citations to “Def. 56.1” collate Hartford’s Rule 56.1 Statement and Flowers’ response to each statement.

2 Pincites to the Administrative Record refer to the Bates stamped numbers.

1. The Policy

The Policy defines “disability” or “disabled” to mean: “You are prevented from performing

one or more of the Essential Duties of: [(1)] Your Occupation during the Elimination Period;3 [(2)]

Your Occupation, for the 24 month(s) following the Elimination Period, and as a result Your

Current Monthly Earnings are less than 80% of Your Indexed Pre-disability Earnings; and [(3)]

after that, Any Occupation.” AR 93. “Any Occupation” is defined as “any occupation for which

You are qualified by education, training or experience.” AR 93 (emphasis added).

“Benefit payments” stop on “the date You are no longer Disabled.” AR 87. However, “If

You are Disabled because of: [(1)] Mental Illness that results from any cause; [or] [(2)] any

condition that may result from Mental Illness,” then the duration of benefits is limited to “a total

of 24 month(s) for all such disabilities during your lifetime.” AR 86.

Importantly, the Policy repeatedly states that Hartford retains “full discretion and authority

to determine eligibility for benefits and to construe and interpret all terms and provisions of the

Policy.” AR 92, 101, 103.

2. Hartford’s Initial Approval of Flowers’ Claim for LTD Benefits

Flowers stopped working for Duane Reade on September 16, 2008. Def. 56.1 ¶ 15. At the

time, she was diagnosed with a seizure disorder and bipolar disorder. Def. 56.1 ¶ 16. Flowers

later applied for LTD benefits, which Hartford approved as of December 22, 2008. Def. 56.1 ¶ 18.

After 24 months, Hartford determined that Flowers continued to be disabled from

performing “Any Occupation.” Def. 56.1 ¶ 20. Flowers thereafter received LTD benefits for

nearly a decade, during which time she was also diagnosed with fibromyalgia and several

musculoskeletal conditions, including cervical degenerative disc disease, lumbar degeneration,

3 The “Elimination Period” is defined as 90 days. AR 83.

and bilateral carpal tunnel syndrome. Defendant’s Response to Plaintiff’ Local Rule 56.1(a)

Statement ¶ 10 [ECF No. 53] (“Pl. 56.1”).4

3. Hartford’s Denial of Flowers’ Claim for Continuing LTD Benefits

Hartford began a review of Flowers’ claim for continuing benefits in 2019. Def. 56.1

¶¶ 22–23. Through a third-party vendor, Hartford arranged for an Independent Medical

Examination (“IME”) to be performed by Dr. Jeffrey Liva, who is board certified in occupational

medicine. Def. 56.1 ¶ 22.

Dr. Liva ultimately concluded that, with respect to her “musculoskeletal” conditions,

Flowers could “sustain functionality of 8 hours per day, 40 hours per week.” Def. 56.1 ¶¶ 28, 33;

AR 1645–46. Following the examination, Dr. Liva issued a 20-page report, noting that he had

“carefully reviewed” Flowers’ medical records. Def. 56.1 ¶ 24. Relevant here, Dr. Liva reported

the following observations:

• Flowers was a “well-developed, well-nourished, overweight female” who “appear[ed]

healthy.” Def. 56.1 ¶ 25; AR 1643.

• Flowers’ “chief complaint” was “widespread sharp pain,” but it was “improved by

medication.” Def. 56.1 ¶ 26; AR 1641.

• Flowers was “able to perform all activities of daily living,” including cooking, light

cleaning, and driving four blocks. Def. 56.1 ¶ 27; AR 1641–42.

• Flowers reported “tenderness . . . over both shoulders and [her] upper and lower spine” and

appeared “mildly uncomfortable” during the examination. AR 1698–99.

• Flowers experienced no limitations with respect to speaking, vision, or hearing. Def. 56.1

¶ 31; AR 1645.

Dr. Liva did not “opine on [Flowers’] psychiatric disorders.” Def. 56.1 ¶ 33; AR 1645. Hartford

sent a copy of Dr. Liva’s report (the “IME Report”) to Flowers’ treating physicians, Dr. Pintauro

4 Citations to “Pl. 56.1” collate Flowers’ Rule 56.1 Statement and Hartford’s response to each statement.

(internist), Dr. Barone (rheumatologist), and Dr. Andrus (physical medicine and rehabilitation) for

review and comment. Def. 56.1 ¶ 35. Dr. Pintauro indicated that he agreed with Dr. Liva’s

conclusions. Def. 56.1 ¶ 36; AR 1710. Drs. Barone and Andrus did not respond. Def. 56.1 ¶ 37.

With respect to Flowers’ psychiatric disorders, Flowers informed Hartford in August 2019

that she was “in the process of finding a new psych[ologist]” and that “the last time she saw [a

psychiatrist] was last year.” Def. 56.1 ¶ 38; AR 160. Several months later, in April 2020, Flowers

again confirmed that she was not under the care of a psychiatrist or psychologist. Def. 56.1 ¶ 40.

Following the IME, a Vocational Rehabilitation Clinical Case Manager, Lisa Screen

Housley, performed an Employability Analysis Report (“EAR”). Def. 56.1 ¶ 41. The EAR

identified five occupations that Flowers was qualified to perform and would be functionally

capable of performing “with minimal learning.” 5 Def. 56.1 ¶¶ 44, 45; AR 1726. Housley noted

that those occupations “exist in reasonable numbers in the national economy.” Def. 56.1 ¶ 46.

On April 7, 2020, Hartford informed Flowers that her claim for continuing LTD benefits

was denied, effective the following day. Def. 56.1 ¶ 47; see AR 580–87.

4. Flowers’ Administrative Appeal

Flowers filed an administrative appeal. Def. 56.1 ¶ 53; see AR 1805–09. She contended

that she “lack[ed] the functional capacity to perform any . . . type of full-time work because of her

severe fibromyalgia, cervical radiculopathy, lumbar degeneration, and bilateral carpal tunnel

syndrome.” Def. 56.1 ¶ 55; AR 1806. Flowers submitted medical records in support of her appeal,

including:

• Progress notes from Dr. Barone indicating that, as of November 2018, Flowers

“continue[d] with fibromyalgia pain” but it “seem[ed] less than before.” Def. 56.1 ¶ 56;

AR 1865. Dr. Barone also comments that Flowers had no inflamed joints, swelling, or

deformity, her grip was “good,” her range of motion in the hips and knees was “normal,”

5 The occupations are Personnel Manager, Employment Manager, Employee Relations Specialist, Equal Opportunity

Officer, and Employment Agency Manager. Def. 56.1 ¶ 50; AR 585.

her reflexes were “equal,” and her internal and external rotator muscles were “less limited.”

Def. 56.1 ¶ 57; AR 1865.

• Office visit notes from Dr. Andrus describing Flowers as “[w]ell developed, well

nourished, [and] in no acute distress.” Def. 56.1 ¶ 64; AR 1910. Dr. Andrus notes that

Flowers had previously been diagnosed with “very mild” right carpal tunnel syndrome, a

“mild” cervical herniated disk, fibromyalgia, and chronic pain syndrome. Def. 56.1 ¶ 60;

AR 1907. Upon examination, Dr. Andrus concludes that Flowers had “normal cervical

spine alignment,” “[n]ormal posture,” and muscle strength of “5/5.” Def. 56.1 ¶ 64; AR

1910. Dr. Andrus also finds that Flowers had “severely restricted” range of motion in her

shoulders. Pl. 56.1 ¶ 44; AR 1890. In addition, Dr. Andrus remarks that an

electromyography (“EMG”) test did “not find a Radiculopathy.” Def. 56.1 ¶ 61; AR 1907.

• The results of a Functional Capacity Evaluation (“FCE”) test, indicating that Flowers “is

unable to work at this time” or “at any time in the near future.” Def. 56.1 ¶ 68; AR 1931.

• Another EAR, commissioned by Flowers, concluding that she was unable to perform “Any

Occupation” as defined by the Policy. Def. 56.1 ¶¶ 69, 70; AR 1945.

Hartford subsequently referred Flowers’ medical records to a third-party vendor, who

assigned two Independent Physician Consultants (“IPC”): Dr. Diana Hussain and Dr. Alfred

Becker. Def. 56.1 ¶ 73. Dr. Hussain, who is board certified in physical medicine, rehabilitation,

and pain medicine, noted that “[w]hile [Flowers] reports pain with cervical range of motion, there

are no documented range of motion deficits/reduction, no sensory deficits, weakness to the upper

and/or lower extremities, and no reflex abnormalities.” Def. 56.1 ¶¶ 73, 76; AR 1980. Dr. Hussain

therefore concluded that Flowers’ “abilities are sustainable 40 hours per week, with no restrictions

and limitations.” Def. 56.1 ¶ 77; AR 1980. Similarly, Dr. Becker, who is board certified in internal

medicine and rheumatology, commented that the “documentation did not clearly indicate medical

necessity for restrictions and/or limitations from 04/08/2020 to [the] present” and opined that

Flowers’ abilities were “sustainable 40 hours/week from a rheumatology standpoint.” Def. 56.1

¶¶ 73, 79, 80; AR 1983.6

6 Drs. Hussain and Becker attempted to schedule peer-to peer calls with Flowers’ treating physicians, but those

physicians did not respond. Def. 56.1 ¶¶ 75, 81. Similarly, Drs. Hussain and Becker sent their reports to Flowers’

treating physicians for review and comment and received no response. Def. 56.1 ¶ 88.

Based on the findings of Drs. Hussain and Becker and “a comprehensive review of all

information in [Flowers’] claim file,” Hartford upheld its initial adverse benefit determination on

appeal. Def. 56.1 ¶¶ 90, 91; AR 565–70.

5. Procedural Posture

Flowers filed this action in June 2021, seeking judicial review under 29 U.S.C. § 1132

(“ERISA Section 502(a)(1)(B)”). See Complaint [ECF No. 1]. Hartford answered the Complaint.

See Answer [ECF No. 10]. Now pending before the Court are the parties’ cross-motions for

summary judgment. See Flowers’ Motion for Summary Judgment [ECF No. 56]; Memorandum

of Law in Support [ECF No. 57] (“Pl. Mem.”); Hartford’s Motion for Summary Judgment [ECF

No. 48]; Memorandum of Law in Support [ECF No. 50] (“Def. Mem.”). Both parties filed

opposition briefs, see Memorandum of Law in Opposition [ECF No. 59] (“Def. Opp.”);

Memorandum of Law in Opposition [ECF No. 52] (“Pl. Opp.”), and replies, see Reply

Memorandum of Law [ECF No. 61] (“Pl. Reply”); Reply Memorandum of Law [ECF No. 54]

(“Def. Reply”).

LEGAL STANDARDS

I. Summary Judgment Standard

To prevail on a motion for summary judgment, the movant must show “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). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. The

Court’s role at this stage is “not to resolve disputed issues of fact but to assess whether there are

any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting

Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)).

“[T]he burden of demonstrating that no material fact exists lies with the moving party.”

Miner v. Clinton Cnty., 541 F.3d 464, 471 (2d Cir. 2008). “This standard applies equally to cases,

like the instant one, in which both parties moved for summary judgment.” Bronx Household of

Faith v. Bd. of Educ. of City of N.Y., 492 F.3d 89, 96 (2d Cir. 2007). “As a result, when parties

have filed cross-motions for summary judgment, the court ‘must evaluate each party’s motion on

its own merits, taking care in each instance to draw all reasonable inferences against the party

whose motion is under consideration.’” Id. (quoting Hotel Emps. & Rest. Emps. Union, Loc. 100

v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002)).

II. ERISA Standard

“[A]s a matter of general insurance law, the insured has the burden of proving that a benefit

is covered.” Critchlow v. First UNUM Life Ins. Co., 378 F.3d 246, 256 (2d Cir. 2004) (citation

omitted). This principle is equally “applicable in ERISA cases.” Id.

“A denial of benefits challenged under [ERISA Section 502(a)(1)(B)] is to be reviewed

under a de novo standard unless the benefit plan gives the administrator . . . 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). Where, as here, an administrator is granted discretionary

authority, a court “will not disturb the administrator’s ultimate conclusion unless it is arbitrary and

capricious.” Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009) (citation omitted).

This “scope of review is narrow.” O’Shea v. First Manhattan Co. Thrift Plan & Tr., 55

F.3d 109, 112 (2d Cir. 1995). Indeed, a decision is “arbitrary and capricious” only if it is “without

reason, unsupported by substantial evidence or erroneous as a matter of law.” Krauss v. Oxford

Health Plans, Inc., 517 F.3d 614, 623 (2d Cir. 2008) (citation omitted). “Substantial evidence” is

“such evidence that a reasonable mind might accept as adequate to support the conclusion reached

by the decisionmaker and requires more than a scintilla but less than a preponderance.” Miller v.

United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995) (cleaned up).

The Court’s review is limited to the administrative record. See Muller v. First Unum Life

Ins. Co., 341 F.3d 119, 125 (2d Cir. 2003); Order on Discovery Dispute [ECF No. 25].

DISCUSSION

I. Hartford’s Determination was Supported by Substantial Evidence

Hartford contends that it is entitled to summary judgment because its denial of Flowers’

claim for continuing LTD benefits was not arbitrary and capricious and was, instead, based on

“numerous items of substantial evidence.” Def. Mem. 19. Hartford is correct.

The administrative record includes the following pieces of evidence:

• The IME Report performed by Dr. Liva, concluding that Flowers could “sustain

functionality of 8 hours per day, 40 hours per week.” Def. 56.1 ¶ 28; AR 1645–46.

• The statement from Flowers’ own treating internist, Dr. Pintauro, indicating that he agreed

with the findings of the IME Report. Def. 56.1 ¶ 36; AR 1710.

• The notes from Dr. Barone, Flowers’ rheumatologist, suggesting that Flowers’

fibromyalgia pain “seem[ed] less than before,” that Flowers had no inflamed joints,

swelling or deformity, her grip was “good,” her range of motion in the hips and knees was

“normal,” her reflexes were “equal,” and her internal and external rotator muscles were

“less limited.” Def. 56.1 ¶¶ 56, 57; AR 1865.

• The notes from Dr. Andrus, Flowers’ physical medicine and rehabilitation doctor, stating

that Flowers had “normal cervical spine alignment,” “[n]ormal posture,” muscle strength

of “5/5,” and was “in no acute distress.” Def. 56.1 ¶¶ 61, 64; AR 1907, 1910.

• Flowers’ statements to Hartford that she had not seen a mental health provider since 2018.

Def. 56.1 ¶¶ 38, 40; AR 160.

• The EAR completed by Housley, indicating that there are several occupations for which

Flowers is qualified to perform. Def. 56.1 ¶¶ 44, 46; AR 1726.

• The reports issued by Dr. Hussain and Dr. Becker, each concluding that Flowers was

medically capable of working 40 hours per week. Def. 56.1 ¶¶ 77, 79.

Taken together, this evidence clearly amounts to “more than a scintilla” of evidence supporting

Hartford’s denial of Flowers’ claim for continuing LTD benefits. Miller, 72 F.3d at 1072.

II. Flowers’ Counterarguments are Unpersuasive

Flowers lodges a seemingly endless string of counterarguments in an effort to avoid this

straightforward conclusion.7 To start, Flowers contends that “substantial evidence in the

[Administrative Record]” establishes that she is “physically disabled under the [P]olicy.” Pl.

Mem. 12; see also Pl. Mem. 12–15. But Flowers entirely misunderstands the substantial evidence

standard of review. The inquiry is not whether there is substantial evidence to support her claimed

disability. Instead, this Court evaluates whether there is “more than a scintilla” of evidence to

substantiate the conclusion reached by Hartford. Miller, 72 F.3d at 1072; see Hobson, 574 F.3d

at 79 (“Because we find that substantial evidence supported MetLife’s denial of Hobson’s benefits

claim . . . we conclude that the district court properly determined that MetLife acted within its

discretion as plan administrator in denying the claim.”). Because the medical evidence offered by

Flowers does not vitiate the opposing evidence offered by Hartford, Flowers’ evidence does not

alter the conclusion that Hartford’s claim determination was not arbitrary and capricious. See

Ingravallo v. Hartford Life & Acc. Ins. Co., 563 F. App’x 796, 800 (2d Cir. 2014) (“The evidence

cited by Ingravallo does not vitiate the contrary opinions offered by Hartford’s reviewers or render

its decision arbitrary and capricious.”).8

Flowers next attempts to undercut the medical conclusions of Dr. Liva. See Pl. Mem. 15–

7 To the extent a counterargument is not directly addressed in this Opinion, the Court has considered and rejected it.

8 Although Flowers indicates that her medical providers “all concur that [she] is disabled from any occupation,” see

Pl Mem. 15, this suggestion flies in the face of the fact that Dr. Pintauro—Flowers’ internist—agreed with the findings

of Dr. Liva described in the IME Report. Def. 56.1 ¶ 36; AR 1710.

19. She explains that Dr. Liva “only examined [her] for twenty minutes,” and therefore contends

that Hartford “was not justified in relying” on his conclusions. Pl. Mem. 15, 16. Flowers is

incorrect. The record shows that Dr. Liva conducted a “regional examination of [Flowers’]

cervical spin, thoracic spine, lumbar spine, and extremities,” a “neurological examination of

[Flowers’] cervical spine, lumbar spine, and extremities,” “muscle testing,” reflex testing,

compression testing, finger-to-nose testing, and heel-to-toe coordination testing. AR 1644.

Although Flowers vaguely complains about the length of the examination and avows that Dr. Liva

“failed to perform any clinical testing . . . relevant to her [fibromyalgia],” see Pl. Mem. 16, Flowers

provides no authority (legal or otherwise) indicating that Dr. Liva’s examination was medically

insufficient. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986) (“One of the principal

purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims

or defenses.”). Indeed, the fact that Dr. Pintauro—Flower’s treating internist—agreed with Dr.

Liva’s conclusions further demonstrate their reliability. And to the extent that Flowers argues that

Hartford should have disregarded Dr. Liva’s findings because they purportedly conflict with

conclusions of some of her other physicians, the Second Circuit has squarely rejected that

contention. See Kruk v. Metro. Life Ins. Co., 567 F. App’x 17, 20 (2d Cir. 2014) (“MetLife’s

choice to accord more weight to some expert opinions rather than others . . . was sufficiently within

its discretion to preclude identification of arbitrary and capricious decision making.”); Hobson,

574 F.3d at 90 (“MetLife is not required to accord the opinions of a claimant’s treating physicians

‘special weight,’ especially in light of contrary independent physician reports.”).9

9 In her reply brief, Flowers argues for the first time that Dr. Liva erred by “relying mainly on [his] physical exam

findings” because “the evaluation of fibromyalgia-related impairments is not amenable to a general physical exam.”

Pl. Reply 3. Flowers references the Second Circuit’s decision in Green-Younger v. Barnhart, 335 F.3d 99 (2d Cir.

2003), for support. However, it is well established that “new arguments may not be made in a reply brief.” Ernst

Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999). Regardless, in Green-Younger, the “consulting

physicians . . . did not actually credit [the plaintiff’s] diagnosis of fibromyalgia.” Id. at 108. Unlike in Green-Younger,

Flowers’ critiques of Drs. Hussain and Becker fare no better. See Pl. Mem. 15–19.

Although she describes Drs. Hussain and Becker as “file-reviewers,” Pl. Mem. 17, “[i]t is well

settled that, in denying a claim for benefits under ERISA, the plan administrator may rely on the

opinion of independent medical reviewers who have not conducted an examination of the

applicant.” Tortora v. SBC Commc’ns, Inc., 446 F. App’x 335, 338–39 (2d Cir. 2011) (quoting

Zoller v. INA Life Ins. Co., No. 06-CV-112, 2008 WL 3927462, at *13 (S.D.N.Y. Aug. 25, 2008)).

Here, as noted, the opinions of Drs. Hussain and Becker were not contradicted by Flowers’ treating

physicians—who did not respond to their requests for review and comment. Def. 56.1 ¶ 88. To

the extent that Flowers argues that her physicians still somehow disagreed with the conclusions of

Drs. Hussain and Becker, plan administrators may rely on the opinions of independent medical

reviewers “even where the reviewer’s opinion conflicts with that of the treating physicians.”

Tortora, 446 F. App’x at 339.

Flowers next declares that Hartford unreasonably relied on the findings of Drs. Hussain

and Becker because they did not “offer any explanation to support their . . . opinions.” Pl. Mem.

19. Quite the opposite, Drs. Hussain and Becker explained that, based on their review of the

record, Flowers “should be able to sustain a 40 hours/week schedule without restrictions or

limitations” because, among other things, she showed “no indication of synovitis, decreased range

of motion, muscle weakness, inability to make a fist, or other manifestations or musculoskeletal

impairments.” AR 1984. Finally, Flowers asserts without explanation that Drs. Hussain and

Becker “fail[ed] to dispute the objective findings [in her] medical records.” Pl. Mem. 19. Flowers

does not indicate why that fact is relevant, nor does she demonstrate how it undermines their

medical conclusions.

Dr. Liva did credit Flowers’ fibromyalgia diagnosis here. He nonetheless concluded that her diagnosis did not prevent

Flowers from working 40 hours per week. See AR 1674.

Flowers also argues that Drs. Liva, Hussain, and Becker failed to adequately account for

her reports of subjective pain. See Pl. Opp. 7–10. The record does not substantiate her claim.

Indeed, even Flowers concedes that “Dr. Liva notes and fully credits [Flowers’] reports of pain.”

Pl. Opp. 8. However, based on his examination of Flowers, Dr. Liva ultimately concluded that

Flowers could “sustain functionality of 8 hours per day, 40 hours per week.” Def. 56.1 ¶ 23; AR

1645–46. Similarly, Drs. Hussain and Becker noted that Flowers “reported . . . pain,” AR 1980,

but concluded that “[t]he objective findings . . . do not support the need for limitation or

restrictions.” AR 1984. This is sufficient under Miles v. Principal Life Insurance Company, 720

F.3d 472 (2d Cir. 2013), which merely held that insurers may not “disregard[] [a claimant’s]

subjective complaints without providing any reason for this decision.” Id. at 488 (emphasis

added). Because Drs. Liva, Hussain, and Becker adequately explained their findings, the Court

does not find that Flowers’ reports of subjective pain were baselessly disregarded. See Ianniello

v. Hartford Life & Acc. Ins. Co., No. 10-CV-370, 2012 WL 314872, at *3 (E.D.N.Y. Feb. 1, 2012)

(cleaned up), aff’d, 508 F. App’x 17 (2d Cir. 2013) (“Hartford was not required to accept plaintiff’s

subjective complaints in the absence of objective evidence supporting disability.”).10

More generally, Flowers suggests that Hartford’s denial was arbitrary and capricious

because Hartford previously approved her claims and the “medical evidence shows no meaningful

changes or improvement in her conditions.” Pl. Opp. 5. This argument has no merit. As an initial

matter, contrary to Flowers’ contention, the record evidence does show improvement in Flowers’

conditions. Indeed, four doctors (Liva, Pintauro, Hussain, and Becker) independently concluded,

based on her current conditions, that Flowers is capable of working 40 hours per week. Although

10 Flowers attempts to distinguish Ianniello on the grounds that the district judge in that case adopted a Report and

Recommendation issued by a magistrate judge. See Pl. Opp. 9. Flowers provides no authority indicating that fact is

in any way relevant.

Flowers might argue that her improvements were not “meaningful,” her say-so is insufficient to

survive a motion for summary judgment. It is noteworthy, too, that any earlier approvals by

Hartford were based on the medical evidence available at that time. The Court will not fault

Hartford for altering its determination based on the most up-to-date medical information,

particularly where, as here, the Policy clearly states that “Benefit payments” will stop on “the date

You are no longer Disabled.” AR 87 (emphasis added). Further, regardless of Hartford’s previous

approvals, the insured always has the burden to demonstrate an entitlement to benefits. See

Critchlow, 378 F.3d at 256. That burden continues even where an insured was previously awarded

benefits. See Ingravallo, 563 F. App’x at 800 (“Ingravallo bore the burden of establishing, through

objective medical evidence, her continued inability to work.” (emphasis added)); Fitzpatrick v.

Bayer Corp., No. 04-CV-5134, 2008 WL 169318, at *9 (S.D.N.Y. Jan. 17, 2008) (“There is

nothing in the caselaw suggesting that the burden of proof shifts to the Defendants if the Plaintiff

previously received benefits.”). Flowers’ previous receipt of benefits is therefore immaterial.11

Flowers similarly contends that Hartford’s decision was arbitrary and capricious because

it is in conflict with her “continuing receipt” of Social Security Disability Insurance (“SSDI”) from

the Social Security Administration (“SSA”). Pl. Mem. 14–15. Flowers’ only evidentiary support

for this assertion is a letter from the SSA authored in October 2017—nearly three years before

Hartford denied Flowers’ claim—informing Flowers of her monthly SSDI award. AR 1452. The

letter is both unhelpful and irrelevant. To start, it contains no information about the basis for the

award, or any indication that the SSA ever reevaluated Flowers’ claim for benefits in light of new

11 Flowers makes much of the fact that a nurse employed by Hartford, Lynne Tyler, concluded that Flowers was

“disabled from any occupation.” See Pl. Mem. 15. But Nurse Tyler reached that conclusion in 2016—four years

before Hartford issued its denial. See AR 252. Moreover, Nurse Tyler based her findings on medical evidence that

is now out-of-date. For instance, Nurse Tyler noted that that Flowers experienced “possible seizure[s] (fugue states)”

and “severe mental illness.” AR 252. Flowers no longer contends that these symptoms prevent her from working.

See AR 1806 (arguing Flowers “lack[ed] the functional capacity to perform any . . . type of full-time work because of

her severe fibromyalgia, cervical radiculopathy, lumbar degeneration, and bilateral carpal tunnel syndrome”).

medical evidence. See Ingravallo, 563 F. App’x at 799 (denial of benefits was not arbitrary and

capricious where claimant “presented no documents disclosing the basis for the SSA’s decision”

and “the record [did] not reflect that the SSA conducted any reevaluation of Ingravallo’s condition

after its initial award . . . in 2006”). Moreover, claim administrators “are not bound by an SSA’s

award of benefits.” Id.; see Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 443 (2d Cir.

2006) (“[T]he SSA’s determination did not bind either the ERISA Plan or the district court.”).

Thus, Flowers’ continuing receipt of SSDI benefits is of no moment.

Nor does the Court find that Hartford’s determination is “fatally flawed from a vocational

standpoint.” Pl. Mem. 19. Flowers contends that the EAR should have identified “an occupation

for which [she] is already qualified.” Pl. Mem. 19. Because the jobs identified by Housley would

require “minimal learning,” she argues that they are inconsistent with the terms of the Policy. See

Pl. Mem. 19–20 (emphasis added). The Policy defines “Any Occupation” as “any occupation for

which You are qualified by education, training or experience.” AR 93 (emphasis added). Given

the use of the word “or,” Flowers need only satisfy one of those requirements. The undisputed

facts show that she is qualified. Flowers holds a bachelor’s degree and is therefore qualified to

perform all five occupations included in the EAR by virtue of her education—a fact that Flowers

does not contest. See Def. Opp. 17–18; Pl. Reply 6. Moreover, as noted in the EAR, the five

identified occupations “require no prior experience,” “no protracted training,” and “use worker

traits and habits that [Flowers already] possesses.” AR 1726. Thus, Flowers does not demonstrate

that the EAR is in any way deficient.

The Court is also unmoved by the suggestion that Hartford failed to meaningfully consider

the EAR submitted by Flowers on her administrative appeal. See Pl. Mem 20–21. The record

evidence demonstrates that Hartford did consider Flowers’ EAR, see Def. 56.1 ¶ 91, but ultimately

credited the EAR performed by Housley. See Black & Decker Disability Plan v. Nord, 538 U.S.

822, 834 (2003) (courts may not “impose on plan administrators a discrete burden of explanation’’);

United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982) (“unsupported

assertions” insufficient to withstand summary judgment). The same is true of the FCE. See id.'*

Accordingly, Hartford’s motion for summary judgment is granted and Flowers’ cross-

motion for summary judgment is denied.

CONCLUSION

For the above reasons, Hartford’s motion for summary judgment is GRANTED and

Flowers’ motion for summary judgment is DENIED.

The Clerk of Court is respectfully requested to terminate docket entries 48 and 56 and to

close this case.

Date: August 31, 2023 MARY KAY OcI

New York, NY United States District Judge

Flowers contends for the first time in her reply brief that Hartford ignored its obligation “[a]s an ERISA fiduciary”

to provide her with a “full and fair review.” Pl. Reply 7. Again, “new arguments may not be made in a reply brief.”

Ernst Haas, 164 F.3d at 112. In any event, given the commissioning by Hartford of three independent medical

reviewers to review Flowers’ claim for benefits, the Court is not persuaded that Hartford failed to provide Flowers

with a full and fair review.

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