Basch v. Reliance Standard Life Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ADAM BASCH )

)

Plaintiff, )

v. ) Case No. 23-cv-30121-MGM

)

RELIANCE STANDARD LIFE )

INSURANCE COMPANY, )

)

Defendant. )

MEMORANDUM AND ORDER CONCERNING PLAINTIFF’S MOTION TO CLARIFY

AND COMPLETE THE CLAIMS RECORD

(Dkt. No. 22)

Adam Basch (“Plaintiff”) is suing Reliance Standard Life Insurance Company

(“Defendant” or “Reliance”) to recover long-term disability benefits. By the present motion,

Plaintiff seeks an order from the court requiring Reliance to submit a revised affidavit attesting

to the contents of the claim record provided by Reliance to Plaintiff’s counsel; supplement the

claim record with copies of medical records that Plaintiff claims were incomplete or that

Reliance failed to include or obtain; and provide discovery in the form of an affidavit attesting to

whether certain documents exist, and, if such documents exist, submit a sworn offer of proof as

to why the records were not included in the record and include them therein (Dkt. No. 23).

Defendant opposes Plaintiff’s motion (Dkt. No. 29). For the reasons set forth herein, the court

DENIES Plaintiff’s motion.

I. Relevant background

Defendant issued Bacon Wilson, P.C. a Long-Term Disability Policy, LTD 127659,

effective July 1, 2016 (“the Policy”). Plaintiff, as an attorney and shareholder in the litigation

department at Bacon Wilson, P.C., was an insured under the Policy, which provided long-term

disability benefits in the event an insured could no longer perform his or her regular occupation.

According to Plaintiff, his regular occupation was that of a litigation attorney (Dkt. No. 23 at 1-

2). It appears to be undisputed that the Policy qualifies as an employee benefit plan covered by

ERISA. See, e.g., Campbell v. Unum Grp., 633 F. Supp. 3d 378, 381-85 (D. Mass. 2022).

Plaintiff stopped working on August 14, 2017. After an initial investigation, Reliance

concluded that Plaintiff was totally disabled from his regular occupation, entitling him to benefits

under the Policy (Dkt. No. 23 at 2). According to Defendant, when Plaintiff stopped working, he

identified his symptoms as leg and back pain, headaches and migraines, fatigue, and confusion

(Dkt. No. 29 at 4). As required by Reliance, Plaintiff later applied for social security disability

benefits, an endeavor in which he was successful (Dkt. No. 23 at 2). In or around 2020, a nurse

employed by Defendant recommended obtaining updated records because it was difficult to

understand why Plaintiff could not work (Dkt. No. 29 at 4). On September 26, 2022, Defendant

informed Plaintiff that it was terminating his benefits effective October 1, 2022 because, having

reviewed Plaintiff’s claim record, it had determined that he was capable of sedentary work

activity. In the benefits denial letter, Defendant informed Plaintiff that he had the right to appeal

and, in doing so, should inform Defendant of any reason he thought the denial decision was

incorrect by a submission of written comments, documents, records, or other information relating

to his claim (Dkt. No. 20 at 3-4). Plaintiff appealed Defendant’s benefits denial, submitting,

among other things, statements from two long-time physicians and a personal statement

explaining how his impairments limited his ability to work (Dkt. No. 23 at 3). On February 21,

2023, Defendant denied Plaintiff’s appeal, explaining the basis of the denial (Dkt. No. 23 at 3-5).

Plaintiff filed suit against Reliance in the Hampden County Superior Court on or around

September 29, 2023 (Dkt. No. 1-3 at 2-10), stating an ERISA claim (Dkt. No. 1-3 at 9). After

Defendant removed the case to this court (Dkt. No. 1), the case was referred to the undersigned

for pretrial management (Dkt. No. 7). The parties appeared for a Rule 16(b) scheduling

conference on February 21, 2024. The resulting order noted that Defendant had provided

Plaintiff with a complete copy of the proposed claim record and called for Plaintiff to notify

Defendant by March 27, 2024 whether the record as constituted was acceptable to him. If the

parties agreed on the claim record, it was to be filed with the court by April 19, 2024 (Dkt. No.

16 at 1). At the parties’ request, the court subsequently extended the deadlines in the scheduling

order to accommodate their attempt to mediate a resolution of the case (Dkt. No. 17). The

revised order provided that, in the event mediation was not successful (it was not), Plaintiff

should notify Defendant by May 24, 2024 whether the claim record was acceptable (Dkt. No.

19). Plaintiff filed his motion to clarify and supplement the claim record on July 1, 2024 (Dkt.

No. 22). Following further filings, the court held argument on Plaintiff’s motion on August 29,

2024 (Dkt. No. 30) and took the motion under advisement.

II. Legal Framework

Department of Labor regulations provide that a claimant denied disability benefits under

a plan governed by ERISA is entitled to an appeal of the denial by a “’full and fair review of a

claim and adverse benefit determination’ [in which] the claimant must be provided ‘upon request

and free of charge, reasonable access to, and copies of, all documents, records, and other

information relevant to the claimant’s claim for benefits.’” Jette v. United of Omaha Life Ins.

Co., 18 F.4th 18, 26-27 (1st Cir. 2021) (quoting 29 C.F.R. § 2560.503-1(h)(2)(iii)). As part of

this review, a claimant must be provided with an “’opportunity to submit written comments,

documents, records, and other information relating to the claim for benefits,’” id. at 27 (quoting

29 C.F.R. § 2560.503-1(h)(2)(ii)), and “[t]he review on appeal must ‘take[] into account all

comments, documents, records, and other information submitted by the claimant relating to the

claim, without regard to whether such information was submitted or considered in the initial

benefit determination.’” Id. (second alteration in original) (quoting 29 C.F.R. § 2560.503-

1(h)(2)(iv)). The insurer’s entire claim record, including the records relating to a claimant’s

appeal from a denial of benefits, constitutes the administrative record. See id. at 29. “[B]ecause

judicial review of claim denials is ordinarily limited to the administrative record, ‘[t]he Plan’s

internal review process may be the claimant’s last genuine opportunity to influence the final

decision, to supplement the record in preparation for judicial review, or to correct any errors in

the existing record.’” DiGregorio v. Hartford Comprehensive Emp. Benefit Serv. Co., 423 F.3d

6, 15 (1st Cir. 2005) (second alteration in original) (quoting Palmer v. Univ. Med. Grp., 994 F.

Supp. 1221, 1240 (D. Or. 1998)).

In an ERISA denial of benefits case, “because the Court’s review [is] limited to

adjudicating the reasonableness of the administrator’s decision to deny benefits, ‘some very good

reason is needed to overcome the strong presumption that the record on review is limited to the

record before the administrator.’” Nicholas v. Cigna Life Ins. Co. of New York, Civ. No. 14-cv-

14117-ADB, 2016 WL 755612, at *2 (D. Mass. Feb. 25, 2016) (quoting Liston v. Unum Corp.

Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)); see also Doe v. Harvard Pilgrim

Health Care, Inc., 974 F.3d 69, 75 (1st Cir. 2020) (Doe II). “This is true as to discovery as well,

regardless of whether the standard of review is de novo or deferential.” Orndorf v. Paul Revere

Life Ins. Co., 404 F.3d 510, 520 (1st Cir. 2005). In Doe II, “[t]he district court treated as

comprising the record everything compiled by or submitted to [the insurer] in the course of

making its final coverage decision. … In so proceeding, the district court did exactly what the

law called for.” Doe II, 974 F.3d at 74-75. Indeed, the First Circuit has “consistently held that

the record before the district court should match the record reviewed by the administrative

decisionmaker absent some special circumstances.” Id. at 75 (citing Doe v. Harvard Pilgrim

Health Care, Inc., 904 F.3d 1, 6 (1st Cir. 2018) (Doe I); Liston, 330 F.3d at 23).

III. Analysis

Although not phrased in these terms, Plaintiff’s motion seeks discovery in the form of

affidavits or declarations and to reconfigure the contents of the claim record by the addition of

records that Defendant did not consider at any stage when it reviewed Plaintiff’s claim. While

Plaintiff complains that he had no part in creating the physical claim record produced by

Reliance, he ignores that he supplied information to Defendant while he was receiving benefits

and while Defendant was reviewing his claim and that it is a well-established principle that “[a]

claimant seeking disability benefits bears the burden of providing evidence [to the insurer] that

he is disabled within the Plan’s definition.” Morales-Alejandro v. Med. Card. Sys., Inc., 486

F.3d 693, 700 (1st Cir. 2007). With the principles set forth above in mind, the court turns to a

discussion of the orders Plaintiff seeks from the court, discussed in tandem when warranted by

the subject matter of the requests for relief.

A. Reliance has sufficiently attested that the claims record it provided to

Plaintiff is the complete claim record.

Plaintiff contends that he cannot be sure that Reliance has produced the complete claim

record and he requests that the court order Reliance to produce a revised affidavit to properly

substantiate that the proposed record is complete (Dkt. No. 22 at 5-7, 18). He further contends

that he cannot determine independently whether Defendant has included all the medical records

that Defendant received in connection with Plaintiff’s claim or whether it has included such

records in the form in which it received them, and he complains about the absence of policy

documents and copies of internal communications among Defendant’s employees and with non-

parties such a Plaintiff’s care providers (Dkt. No. 23 at 10-11, 14-17). Reliance provided its

claim record – consisting of pages with Bates numbers AR000001 through AR002439 – to

Plaintiff’s counsel accompanied by an affidavit made by Defendant’s Director of Claim

Reporting and Investigations, attesting to the accuracy and completeness of the claim record

provided to Plaintiff’s counsel (Dkt. No. 29-1 at 1 ¶¶ 1, 3). Plaintiff’s counsel conceded at the

hearing on his motion that Plaintiff did not provide any document to Defendant that is not

included in the record, nor has he identified any document that Plaintiff requested in connection

with his appeal from the benefits denial that Defendant failed to supply. Other than speculation

about documents such a record might, or, in Plaintiff’s opinion, should contain, he has not stated

any basis for the assertion that is it unfair to require him to rely on Defendant’s representation

that he has been supplied with Reliance’s complete claim record related to Plaintiff’s claim for

disability benefits.1 Where Plaintiff has failed to identify any basis for the court to find that

Defendant did not supply the complete claim record to Plaintiff’s counsel, including but not

limited to all the medical records it received, there is no basis or reason for the court to order

Reliance to produce a duplicative affidavit.

B. The identification of the applicable definition of “regular occupation”

is a substantive question rather than a question about the scope of the

claim record.

Plaintiff complains that the claim record includes two insurance policies that contain

different definitions of the term “regular occupation,” and he contends by the instant motion that

Reliance should be required to clarify which definition of the term defining occupation it applied

when it decided to discontinue Plaintiff’s disability benefits. Both definitions of the term

1 Plaintiff’s memorandum refers to an exhibit 4 which Plaintiff represents contained a list of

items that Plaintiff believes might or should have been included in the claim record (Dkt. No. 23

at 7). As Defendant noted in its August 5, 2024 opposition to Plaintiff’s motion, there was no

exhibit 4 attached to Plaintiff’s motion or his memorandum (Dkt. No. 29 at 2 n.1). In any event,

the exhibits would not change the court’s ruling on Plaintiff’s motion.

“regular occupation” are before the court in the claim record. It is open to Plaintiff to argue that

Defendant applied the wrong definition or that the claim record shows that, whichever definition

applies, Defendant’s benefits denial was improper. This is a merits question, not a question

suitable for resolution on a motion to determine the scope of the claim record.

C. The time for supplementing the claim record with additional medical records

has passed.

Plaintiff argues that the existing claim record must be supplemented with medical records

that Defendant requested from providers but did not receive, pages that are missing from medical

records included in the record, and records from medical providers that Defendant knew Plaintiff

had consulted and that Defendant did not request (Dkt. No. 23 at 11-13). All these contentions

are based on the premise that Defendant was obligated to gather records from some or all of

Plaintiff’s medical care providers in the course of reviewing his claim. Plaintiff does not

acknowledge that he was responsible for proving that he was entitled to disability benefits by

submitting to Defendant the information necessary to support his claim “that he is disabled

within the plan’s definition.” Morales-Alejandro, 486 F.3d at 700. The First Circuit has

foreclosed this argument. In Orndorf, the plaintiff contended that the district court erred when it

denied him leave to submit additional evidence including medical records, an MRI report, and a

medical report from an orthopedic spine specialist to augment the claim record before deciding,

on de novo review, whether the insurer’s denial of benefits should be reversed. The First Circuit

held as follows:

Not only do we reject [plaintiff’s] claim that it was error for the court to exclude

such extra record medical evidence, but we hold that it would have been error for

the court to have admitted such evidence. The decision to which judicial review

is addressed is the final ERISA administrative decision. It would offend interests

in finality and exhaustion of administrative procedures required by ERISA to shift

the focus from that decision to a moving target by presenting extra-administrative

record evidence going to the substance of the decision. There is no claim that

Plaintiff was denied an opportunity to present evidence to the administrator.

Here, the plaintiff had ample time to collect records …. Even if the new evidence

directly concerned the question of his disability before the final administrative

decision, it was inadmissible.

Orndorf, 404 F.3d at 519 (citation omitted; emphasis added). Orndorf remains the law in this

circuit. Plaintiff does not contend that he was denied an opportunity to present evidence to the

administrator. He has not suggested that he lacked ample time to collect records. There is no

indication before the court that Plaintiff asked Defendant to give him additional time to gather

records, or to defer a decision pending additional testing or reports documenting additional

medical appointments. Nor, as previously noted, is there any indication that Plaintiff submitted

any evidence to Defendant that was omitted from the claim record. So far as appears from the

motion before the court, there are no special circumstances that would justify departing from the

rule set out in Orndorf.

Plaintiff’s reliance on Beauvais v. Citizens Fin. Grp., Inc., 418 F. Supp. 2d 22, 31-32

(D.R.I. 2006), is misplaced. In Beauvais, the insurer was aware of an MRI report and an X-ray

that supported the opinion of the plaintiff’s treating orthopedic surgeon that the plaintiff could

not work because of cervical degenerative joint disease and cervical radiculitis. Id. at 25-26.

The insurer did not receive or obtain copies of the MRI or the X-ray, notwithstanding that it was

aware these diagnostic tests existed, were important to evaluating the plaintiff’s claim, and that

internal evaluators had referred to the absence of the records. Id. at 31. The court held that the

insurer’s failure to obtain the MRI report and the x-ray was unreasonable and an abuse of

discretion. The court nonetheless went on to state that its decision did “not mean that a fiduciary

or administrator has the burden of obtaining information necessary to support a disability claim.

That burden clearly rests on the claimant.” Id.

Beauvais is not binding on this court, nor is it easy to reconcile with Orndorf. Most

importantly, the instant case is not factually similar to Beauvais. First, in Beauvais, the court

was faced with the denial of a well-documented claim of functional limitations due to cervical

disc degeneration that precluded work. Id. In contrast, according to Defendant, over the life of

Plaintiff’s claim, he was seen by over twenty doctors none of whom could explain or corroborate

his symptoms. He coached his children in soccer and went skiing with them. The claim record

included unremarkable examinations and diagnostic testing. Plaintiff never submitted a

functional limitation evaluation or results of neuropsychological testing. Plaintiff’s submission

from a treating care provider following the initial denial of benefits can fairly be characterized as

equivocal (Dkt. No. 29 at 4-6). Second, this is not a case in which Plaintiff seeks to add clearly

identified, limited information essential to the evaluation of his claim, the existence of which was

known to Defendant when it denied the claim. Plaintiff’s motion is essentially a fishing

expedition that, if granted, would substantially reconfigure the record on which Defendant made

its claim decision. Under Orndorf and its progeny, at this stage, Plaintiff is not entitled to

supplement the record in the manner he proposes.

D. Plaintiff is not entitled to discovery concerning the records review

conducted by Leonard J. Sonne, M.D.

There is no dispute that Dr. Sonne (“Sonne”) conducted a record review on which

Defendant relied in deciding to discontinue Plaintiff’s benefits (Dkt. No. 23 at 13; Dkt. No. 29 at

15). Plaintiff contends that Defendant must add documents to the claim record that will show all

of Defendant’s communications with Sonne and his employer; all documents on which

Defendant relied in determining that Sonne was qualified to conduct the record review in

Plaintiff’s case; all communications between Defendant and any medical professional not

employed by Defendant; all documents notifying Plaintiff that Defendant had engaged Sonne to

perform a record review; and all documents informing Plaintiff of Sonne’s findings and notifying

him of his right to submit additional information in support of his claim.

According to Defendant, the claim record includes Sonne’s report, which identifies the

records he reviewed as a basis for his report along with the questions he was asked to address

(Dkt. No. 29 at 15-16). Plaintiff has not filed a reply disputing these representations. In any

event, these requests for supplementation miss the mark. “[W]hether Defendant reasonably

relied on the opinion[] of [a] physician[] who did not examine Plaintiff and whether there was

substantial evidence that Plaintiff’s chronic pain condition and use of opiates resulted in

functional restrictions and limitations meeting the … definition of disability are merits

arguments” rather than arguments that would justify additions to the claim record. Germana v.

Hartford Life & Accident Ins. Co., Civil No. 3:23-cv-30065-MGM, 2024 WL 3416026, at *4 (D.

Mass. July 15, 2024).

The court agrees with Plaintiff that he was entitled to a copy of Sonne’s report and the

opportunity to respond by “submitting written comments, documents, records, or other

information relating to [his] claim that [he] deemed appropriate” and that Defendant’s “review

on appeal had to take into account [any such] new submissions.” Jette, 18 F.4th at 29 (citing 29

C.F.R. §§ 2560.503-1(h)(2)(ii), (iv)). Again, however, the contention that Defendant failed to

provide Plaintiff with a full and fair review before discontinuing disability benefits by failing to

provide him Sonne’s report on a timely basis, and that this failure prejudiced Plaintiff, are merits

arguments, not arguments for supplementation of the record now before the trial court. The

remedy for such a procedural misstep by Defendant, if such a misstep occurred (Defendant

denies that it did), is a remand by the trial court in accordance with the principles set forth in the

Jette case. See id. at 33.

E. The bare fact of a structural conflict does not justify supplementation

of the claim record.

Finally, Plaintiff appears to contend that the claim record should be supplemented with

documents concerning what steps Defendant took, if any, to address its structural conflict of

interest (Dkt. No. 23 at 17). Defendant acknowledges that, because it determines whether a

claimant is eligible for benefits and pays any benefits that are owed under a policy, it operates

under a structural conflict of interest (Dkt. No. 29 at 18). See, e.g., Denmark v. Liberty Life

Assurance Co. of Boston, 566 F.3d 1, 7 (1st Cir. 2009) (discussing the circumstances in which an

insurer has a structural conflict of interest). For an ERISA plaintiff seeking discovery related to

an insurer’s structural conflict, however, “the same burden-of-proof rules that apply to ‘any other

aspect of an ERISA claim for improper denial of benefits’ likewise apply to the conflict-

discovery issue …. The beneficiary thus bears the burden of showing that the conflict influenced

the Plan administrator’s decision in some way.” Troiano v. Aetna Life Ins. Co., 844 F.3d 35, 45

(1st Cir. 2016) (citation omitted). “To be entitled to supplemental discovery, a plaintiff must

‘make[] a threshold showing that the denial of benefits was improperly influenced by the

administrator’s conflict of interest.’” Bonomo v. Factory Mut. Ins. Co., Civil Action No. 1:21-

cv-11750-IT, 2023 WL 3934696, at *7 (D. Mass. June 9, 2023) (alteration in original) (quoting

McGahey v. Harvard Univ. Flexible Benefits Plan, Civil Action No. 08-10435-RGS, 2009 WL

799464, at *2 (D. Mass. Mar. 25, 2009)). “The existence of a structural conflict, standing alone,

is insufficient to establish a very good reason justifying … discovery ….” Germana, 2024 WL

3416026, at *6. Plaintiff has offered nothing more than the existence of a structural conflict to

justify discovery and a supplement to the claims record. He has not met his burden on this point.

Id.

IV. Conclusion

For the foregoing reasons, Plaintiff’s Motion to Clarify and Complete the Claims Record

(Dkt. No. 22) is DENIED.

It is so ordered.

Date: October 10, 2024 Katherine A. Robertson

KATHERINE A. ROBERTSON

US. MAGISTRATE JUDGE