Doe v. First UNUM Life Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

GUANGYU LI, :

:

Plaintiff, : 23cv6985 (DLC)

:

-v- :

: OPINION AND ORDER

FIRST UNUM LIFE INSURANCE COMPANY, :

:

Defendant. :

:

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APPEARANCES:

For plaintiff:

Jennifer Lynn Hess

Ryan James McIntyre

Samantha Wladich

Scott Madison Riemer

Riemer Hess LLC

275 Madison Avenue, 26th Floor

New York, NY 10016

For defendant:

Patrick Walter Begos

Raymond J Carta

Robinson & Cole LLP

1055 Washington Blvd

Stamford, CT 06901

DENISE COTE, District Judge:

Plaintiff Guangyu Li, a former employee of McKinsey & Co.

(“McKinsey”), has sued First Unum Life Insurance Company (“First

Unum”) under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001 et seq. Li alleges that First Unum

improperly denied his application for long term disability

benefits. This Opinion presents the Court’s findings of fact

and conclusions of law following a bench trial. For the reasons

stated below, judgment is granted to First Unum.

Background

The following contains many of the Court’s findings of

fact. Some are contained in the Discussion, which follows.

A. Li’s Application for Benefits

Guangyu Li resides in Shanghai, China. He is 55 years old.

In 1999, he began working for McKinsey as a consultant. As of

2021, Li was a Senior Partner at McKinsey, where he worked with

clients across China. He earned an annual salary of

$1,572,900.00.

Li submitted a claim for long term disability benefits

pursuant to McKinsey’s Group Long Term Disability Insurance

Policy (the “Policy”) on April 6, 2022. For those who qualify

for coverage, the Policy provides for two-thirds of basic

monthly earnings, with a maximum monthly benefit of $35,000.

The Policy also provides that a claimant under the age of 60 is

eligible to receive benefits up until the age of 65. Li was 53

years old when he submitted his application.

To qualify for long term disability benefits under the

Policy, Li is required to show that he was disabled and that he

required the regular attendance of a physician. The Policy

defines “disability” and “disabled,” in relevant part, as

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meaning that “because of injury or sickness . . . you cannot

perform each of the material duties of your regular

occupation[.]”

The Policy further explains that once First Unum receives

proof that an insured is disabled, First Unum will pay the

insured a monthly disability benefit “after the end of the

elimination period.” The Policy provides for an elimination

period of 180 days, which is a “period of consecutive days of

disability for which no benefit is payable,” and which begins on

the first day of alleged disability. Days that the insured is

not disabled do “not count toward the elimination period.” The

Policy thus required that Li prove that he remained disabled

through his elimination period. Li’s elimination period runs

from December 9, 2021, the day after he last worked for

McKinsey, to June 8, 2022.

In his application, Li stated that he first noticed

symptoms of “anxiety and depression” in “[e]arly July of 2021,”

that he was first treated by a physician on August 5, 2021, and

that his last day of work was December 8, 2021. Li reported

that he had not been treated for this condition in the past and

that his condition was “partially related” to his occupation,

due to a “[m]ajor shift in working scope and boundries [sic].”

He explained that he was unable to perform the “major decision

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making” duties of his occupation and was currently taking three

medications prescribed by Dr. Hongxia Zhang, M.D. He also noted

that he was currently receiving short term disability benefits,

which covered the period December 9, 2021 to June 8, 2022.

Along with his application, Li attached an “Attending

Physician Statement” from Dr. Zhang dated March 10, 2022, which

stated that his primary diagnosis was “mixed depressive and

anxiety disorders.” Dr. Zhang further wrote that, “Due to

depression and anxiety, Mr. Li cannot mentally do his job.

Currently it is not predictable for how long these limitations

will last.”

Dr. Zhang’s statement was supported by a two-page list of

Li’s appointments with the SinoUnited Health Clinic in Shanghai,

where Dr. Zhang worked. It indicated that Li was treated at the

clinic on 27 occasions between March 1 and August 5, 2021 with

physiotherapy in the rehabilitation department. One of those

early appointments was with the orthopedics department. On

August 5, Li received a physiotherapy treatment, had a

consultation with gastroenterology, and had his first

consultation in the psychiatry department with Dr. Zhang.

Between August 5, 2021, and April 8, 2022, Li had eight visits

with Dr. Zhang -- i.e., approximately one visit per month.

Following August 5, he also had 35 more physiotherapy sessions,

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a gastrocolonsocopy on August 24, and a dermatology consultation

on October 21.

Dr. Zhang’s treatment notes for the period between August

5, 2021 and April 8, 2022, were added to Li’s disability claim

file soon thereafter. They consist of one page of notes in

Chinese and English per appointment. In her treatment of Li

between August 2021 and April 2022, Dr. Zhang documented Li’s

depressed mood, anxiety, negative thinking, and struggles with

sleep. Li saw Dr. Zhang twice in August, during which time Dr.

Zhang prescribed the anti-depressants Seroxat and Trazodone.

Dr. Zhang did not see Li again until November 29, at which point

she changed his medication to Clonazepam (for panic disorders)

and Cymbalta (for depression and anxiety). On December 9, she

increased Li’s Cymbalta dosage. At that session, Dr. Zhang

reported that Li was depressed, upset, and crying easily, but

that his sleep (although still “shallow”) had improved. On

January 10, 2022, she recorded his depression and anxiety as

“partially improved” and his “crying decreased.”

On February 9, Dr. Zhang lowered the Cymbalta dosage and

added a prescription for quetiapine. On March 10, Dr. Zhang

described Li’s hyperactivity as “improved,” and noted that Li’s

thinking was “coherent.” Dr. Zhang again observed that Li’s

thinking was coherent on April 8, but also that Li was

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experiencing depressed mood, anxiety, poor sleep (sometimes

falling asleep at only 5:00 or 6:00 a.m.), and poor appetite.

Dr. Zhang continued Li’s prescriptions for Cymbalta, Clonazepam,

and quetiapine at their then-existing levels. Li did not see

Dr. Zhang again during the elimination period. His next session

with her was a telephone follow-up on June 9, 2022.1

B. First Unum’s Initial Denial of Benefits

In its initial review of Li’s application, First Unum noted

that, “per” Li’s employer, McKinsey, Li was receiving “sick pay

/ [short term disability]” through June 8, 2022. First Unum,

noted, however, that it was “unclear” if Li would remain

precluded from carrying out his occupational duties through the

elimination period, and thus whether he would be entitled to

long term disability benefits payable from June 8, 2022 onwards.

On April 21, First Unum requested copies of Dr. Zhang’s

treatment notes from August 2021 to the present. On May 2,

First Unum emailed Li to ask him about the history of his

condition and his current symptoms and other questions related

to his claim for benefits. In response, Li stated that his

symptoms had begun in “mid-2021” and referred First Unum to Dr.

1 Dr. Zhang’s notes indicate that Li was unable to visit the

clinic on June 9 due to the sudden closure of the residential

area, apparently a reference to a COVID-19 closure.

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Zhang’s treatment notes for a “detailed description” of his

symptoms.

On May 9, First Unum requested from Li copies of any new

treatment notes that were available from Dr. Zhang for May and

June. Receiving no response, First Unum made the same request

on June 3. On June 8, the elimination period for Li’s long term

disability benefits ended. Several days later, on June 12, Li

provided First Unum with Dr. Zhang’s treatment note from the

June 9 telephone session. Dr. Zhang’s June 9 note describes

Li’s continued struggles with anxiety, concentration, and sleep.

It also notes that she increased Li’s Clonazepam prescription.

On June 16, First Unum reported to Li that it had completed

an initial review of Li’s materials and sought additional

clarification. First Unum asked Li whether he was receiving

psychotherapy in addition to the “medication management” that

Dr. Zhang was providing, and whether Dr. Zhang was “still

providing disability restrictions” because her “notes did not

indicate any work or disability status.” In response, Li

informed First Unum that he was not receiving psychotherapy and

provided an updated “disability/out of work note from Dr.

Zhang.” Dr. Zhang’s note -- dated June 20 and marked as a

“follow up note” to the June 9 session –- states: “The patient

visited by telephone on 6/9, and was not suitable for work at

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that time. He was recommended to continue rest and gradually

adjust his emotional state through drug therapy and cognitive-

behavioral fine tuning.”

Having received the requested information from Li, First

Unum asked Registered Nurse Allyce Hawkes to review Li’s medical

records. Nurse Hawkes conducted a review on June 29. After

summarizing Dr. Zhang’s treatment notes from August 5, 2021 to

June 9, 2022, she concluded that it was “unclear” what the

etiology was for Li’s anxiety and depression and whether Li’s

anxiety and depression rose to a level that would “support a

decrease in functional capacity.” Nurse Hawkes reasoned that

while Li’s symptoms were consistently documented and Li had

undergone multiple medication changes, his treatment had been

limited to once a month and Dr. Zhang’s records did not “provide

clear insight” into Li’s functional capacity. She also noted

that Dr. Zhang’s treatment notes included observations that Li

was able to complete some tasks including volunteering, caring

for pets, and limited cooking.

First Unum next had Dr. Alex Ursprung, Ph.D., contact Dr.

Zhang. In a letter dated July 1, Dr. Ursprung wrote to Dr.

Zhang that, based on his initial evaluation of Dr. Zhang’s

treatment notes, “Mr. Li would not be precluded from attempting

to return to his occupational duties.” Dr. Ursprung noted,

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among other things, that Dr. Zhang’s own treatment notes

observed that Li’s cognition was intact, that Li could do some

volunteer work, and that Li’s treatment plan had been limited to

monthly visits with Dr. Zhang. He asked Dr. Zhang whether she

agreed that Li had not been precluded from working due to a

psychiatric disorder from between December 9, 2021 and June 8,

2022, “and beyond,” and, if not, to discuss the specific

psychiatric restrictions and limitations that would prevent Li

from working.

Dr. Zhang responded in a letter dated July 11, 2022. She

stated that she did not agree with Dr. Ursprung’s opinion. Dr.

Zhang noted that Li’s job demanded “great motivation, high

attention, and speedy thinking,” and that Li’s “function in all

these aspects has been greatly impaired.” She additionally

noted that her description of Li as having “coherent thinking”

was to suggest that Li had a “non-psychosis problem” and that Li

had had “a bad experience in psychotherapy” and for that reason

was not willing to engage in it again. Finally, while Dr. Zhang

had encouraged Li to keep a regular lifestyle as much as

possible, including by recommending that he do some volunteer

work when feasible, she ultimately believed that “his depression

and anxiety still prevent him from working.”

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Having received this letter, Dr. Ursprung provided a

written assessment of the medical evidence on July 12.

Reviewing Dr. Zhang’s treatment notes, he concluded that:

In my opinion, based on the data I have reviewed, Mr.

Li would not be precluded from attempting to return to

his occupational duties. There is no data in the file

to suggest functional impairment. His mental status

exam reference symptoms but cognition is intact, and

the records do also note some volunteer work.

Treatment is not frequent. I would expect an

impairing psychiatric disorder to be addressed by at

least every other week psychotherapy as well as

monthly medication management. There is no indication

in the records that Mr. Li cannot appropriately

maintain social interaction or cognitive effort.

Dr. Ursprung further summarized Dr. Zhang’s July 11 letter and

concluded that the letter did not change his opinion of Li’s

ability to return to work. He stated that an independent

medical examination (“IME”) was not necessary, because “[t]here

is sufficient information in the file to reasonably determine

the insured’s capacity.” Dr. Ursprung recommended obtaining a

second opinion from a behavioral health Designated Medical

Officer.

First Unum selected Dr. Audrey Longson, D.O., board

certified in psychiatry, to provide that second opinion. Dr.

Longson, in a July 14 review, agreed with Dr. Ursprung’s

conclusion that Li “would not be precluded from returning to his

occupational duties.” She reasoned that Dr. Zhang’s treatment

notes “lack comprehensive mental status examination findings and

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there are no psychotherapy records.” She further opined that

the “lack of participation in regular psychotherapy would not be

consistent with a severe functional impairment due to a

psychiatric condition.” In sum, she stated that Li “has

complained of severe psychiatric symptoms, and [Dr. Zhang] has

opined that these complaints preclude [Li] from working[,]” but

“the treatment plan outlined in the medical records is

inconsistent with the reported psychopathology level.”

Following these reviews by Nurse Hawkes, Dr. Ursprung, and

Dr. Longson, First Unum denied Li’s claim by letter dated July

19, 2022. In the letter, First Unum summarized its decision

that Li’s “regular occupation” was “Consultant,” which required

duties of directing, controlling, or planning activities of

others; influencing people in their opinions, attitudes, and

judgments; and making judgments and decisions. The letter then

summarized the medical evidence and the peer reviews. First

Unum emphasized that Dr. Zhang’s treatment records did not

“contain clinical evidence of severe/persistent psychiatric

pathology that would be expected to restrict functionality,” and

Dr. Zhang’s “treatment plan” was “inconsistent with [Li’s]

reported psychopathology level.” It concluded that the medical

information submitted did not support a finding that Li was

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limited from performing the material duties of his occupation on

a full-time basis through the elimination period and beyond.

C. Li’s First Appeal

On August 29, 2022, Li appealed First Unum’s determination

by email. He requested that an independent medical review be

part of the appeal process. He did not provide any additional

medical records. He did, however, copy Dr. Zhang on the email,

who Li said “helped” him to “interpret” First Unum’s July 19

letter and to “raise questions.” Among other things, Li

clarified that he had misunderstood First Unum’s earlier

question and clarified that he was receiving psychotherapy

treatment as part of his sessions with Dr. Zhang (but not with

any other provider). First Unum confirmed by letter dated

August 30 that it had received Li’s request for an appeal review

of his disability claim.

Also on August 30, First Unum asked Dr. Peter Brown, M.D.,

board certified in psychiatry, to conduct a peer review and

analyze whether the available medical records suggested

restrictions and limitations that would preclude Li from working

during the elimination period and onward. Dr. Brown concluded

that the available medical information supported restrictions

and limitations for a period from December 9, 2021 to March 10,

2022, based on “the need to evaluate, initiate treatment and

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stabilize [Li’s] reported symptom exacerbation.” Further

restrictions and limitations, in Dr. Brown’s view, however, were

not supported beyond that period.

Dr. Brown reasoned that the available medical records from

Dr. Zhang were “extremely terse and do not give a full

psychiatric history or address either job-related stressors or

other contributing factors including the contemporaneous, strict

COVID lockdown.” In addition, Dr. Brown reported that, “[i]f

severe and ongoing impairment were present one would reasonably

expect further adjustments in medication and, at a minimum,

discussion of the risks and advantages of additional treatment

including psychotherapy.” He further opined that Li’s concern

about a prior “bad experience” with psychotherapy did not

justify foregoing the treatment, because “[s]uch experiences are

not uncommon” and “do not significantly predict subsequent

benefit from psychotherapeutic treatments that focus on symptom

reduction and improvement of coping skills.” Finally, Dr. Brown

stated that “[n]o additional medical activity” was warranted “at

this time.”

First Unum provided Li with Dr. Brown’s peer review for

comment on September 6. In a letter dated September 15, Li’s

current counsel explained to First Unum that it recently had

been retained by Li and requested an extension to April 15, 2023

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to prepare an appeal. First Unum denied that request by letter

dated September 21, and Li’s counsel then withdrew Li’s August

29 appeal.

D. Li’s Second Appeal

Li filed a renewed appeal on February 7, 2023. The appeal

included: an affidavit from Li; two letters from Dr. Zhang, one

dated December 29, 2022 and one January 30, 2023; and a

neuropsychology evaluation performed remotely by Dr. Wilfred van

Gorp, Ph.D., on December 5, 2022. On February 8, Li submitted

two unsigned “witness statements” from his aunt and a co-worker.

Among those newly submitted materials, Dr. Zhang’s January

30, 2023 letter opined that Li’s “condition causes deficits in

his attention; concentration; memory; recall; and verbal

fluency.” As a result, she reasoned, Li would have difficulty

concentrating and solving complex problems at work and would

require frequent breaks and absences. Dr. Zhang further stated

that Li was currently taking clonazepam, quetiapine, and Lexapro

(which, she said, she had prescribed in lieu of Cymbalta since

November 2022). Dr. Zhang concluded, based on her experience as

a psychiatrist and her “clinical familiarity with [Li] and his

history,” that Li’s condition was unlikely to improve and that

he was disabled and “unable to work in his occupation or any

other occupation.”

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Attached to Dr. Zhang’s December 2022 letter were new

treatment notes from August 10, September 20, October 13,

November 28, 2022. Those treatment notes continued to document

Li’s depressed mood, anxiety, lack of motivation, and sleep

troubles. They also noted additional changes in Li’s medication

plan. At the November 2022 session, Dr. Zhang recommended Li

receive “counseling.”

Dr. van Gorp’s neuropsychology report was based on a

telehealth evaluation conducted on December 5, 2022.2 He

reviewed Li’s history of depression, which he reported began in

Li’s 20s, and Li’s “current depressive episode.” Dr. van Gorp

further noted that Li told him “that he actively considers plans

for how to commit suicide,” and he observed, based on Li’s

“Personality Assessment Inventory,” that Li “views himself in an

overly negative manner, with few positive qualities.”

Dr. van Gorp used tests to evaluate Li on several metrics,

including effort and motivation (which Dr. van Gorp described

as, “good”), intellectual functioning (“borderline” in

“processing speed” for his age), attention and concentration

2 Dr. van Gorp also tested Li on October 20 and 21 but only the

data from the December 5 session was “used for valid clinical

interpretation.” Dr. van Gorp’s report states that testing was

“discontinued” in the first two sessions because Li was “so

depressed . . . that he was unable to put forth sufficient

effort,” and, in his view, would not have been able to “finish[]

the test.”

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(“significantly impaired”), learning and memory (“significantly

impaired”), executive function (“extremely low”), and emotional

and personality functioning (“significant elevation across

several scales”). He also found Li to score average or better

in several metrics, including: working memory (“average”);

complex attention (“superior”); phonemic fluency (“average”);

non-verbal abstract problem-solving (“superior”); word recall

and complex figure reproduction (“average”); and concept

formation and mental flexibility (“average”).

Based on his testing, Dr. van Gorp diagnosed Li with “Major

Depressive Disorder, Recurrent, Severe,” and “Generalized

Anxiety Disorder.” He stated that he agreed with Dr. Zhang that

due to Li’s “significant depression and his cognitive impairment

involving psychomotor speed, attention, memory, and verbal

fluency, he is unable to work in his own occupation or any other

occupation.” He also noted that he had “urged” Li to pursue

further appropriate psychotherapy treatment.

E. First Unum’s Appeal Review

In response to Li’s renewed appeal and newly filed

materials, First Unum asked neuropsychologist Dr. Malcolm Spica,

Ph.D. to review Dr. van Gorp’s report, which Dr. Spica did on

February 15, 2023. Dr. Spica reported that “the limited

information regarding validity from the presented examination

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. . . suggests symptom exaggeration.” Among other things, he

quoted Dr. van Gorp’s comment that Li “views himself in an

overly negative manner” and stated: “this appears to be a

reference to the fact that [Li] scored far beyond the normal

range on the Negative Impression Management index (>99th

percentile), which may actually indicate the claimant engaged in

a symptom magnification or malingering.”

Even without the potential for symptom exaggeration, Dr.

Spica determined that “Dr. van Gorp’s testing demonstrated that

[Li] does not exhibit converging or consistent evidence of

neurocognitive dysfunction rising to the level of impairment[.]”

He reasoned that while Li did score low by some measures on Dr.

van Gorp’s tests, he scored high or average on others, and “the

patterns of performance reflected only performance variability,

rather than persisting impairments.” He concluded that

“limitations or restrictions are not supported on neurocognitive

bases.”

Finally, Dr. Spica acknowledged that Dr. van Gorp had cited

“psychological factors” as “influencing [Li’s] experience of

cognitive dysfunction.” But Dr. Spica again expressed his view

“that persisting neurocognitive dysfunction was not

substantiated by the quantified testing,” since Li “provided

performances within normal limits across domains.”

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On February 17, Dr. Brown reviewed the newly submitted

letters and treatment notes from Dr. Zhang, as well as Dr. van

Gorp’s report and Dr. Spica’s review. He observed that both Dr.

Zhang and Dr. van Gorp had noted referrals for behavioral health

treatment in “fourth quarter 2022,” but that, apparently, no

such treatment had been provided. Dr. Brown concluded that the

additional materials did not allow him to change his original

conclusion that Li had not suffered restrictions and limitations

on his ability to work throughout the elimination period and

beyond.

F. Li Supplements Appeal Record in February 2023.

In a letter dated February 21, 2023, First Unum provided Li

with Dr. Brown’s and Dr. Spica’s peer reviews. Li then

submitted statements from Dr. van Gorp and Dr. Zhang (both dated

February 27, 2023), as well as new treatment notes from Dr.

Zhang for December 29, 2022, January 30, 2023, and February 15,

2023.

On March 2, Dr. Spica reviewed the new material from Dr.

van Gorp and concluded that it did “not alter [his] previous

opinion in this case.” He wrote that the “factual errors” that

Dr. van Gorp asserted he made were “either misunderstandings of

what I wrote or differences of opinion.” He further stated that

“Dr. van Gorp’s explanations of the ‘errors’ were not

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substantive and did not alter my analysis of the examination

data.” In addition, he pointed out that “Dr. van Gorp did not

provide additional evidence supporting cognitive disorder for

Mr. Li’s case.” In sum, he concluded that he did “not find

compelling evidence from a neurocognitive standpoint that the

treatment could not be pursued concurrent with work.”

Dr. Brown similarly reviewed the new material from Dr.

Zhang on March 6. He acknowledged that “Dr. Zhang believes that

[Li] demonstrates ongoing functional impairment due to a severe

psychiatric condition.” Dr. Brown reasoned, nevertheless, that

the information included in Dr. Zhang’s new materials was

“entirely consistent with previous information analysis and does

not allow me to change my conclusions as previously stated.” He

reported that “[n]o additional medical activity” was necessary.

First Unum provided the new reports of Dr. Spica and Dr.

Brown to Li’s attorney in a letter dated March 6. In its

letter, First Unum told Li that it “did not find support for

restrictions and limitations that would limit [Li] from

performing [his] occupational demands through the elimination

period.” It informed Li of his right to review and respond to

First Unum’s materials, reiterating that any new information Li

provided “should be time relevant to when the elimination period

ended on June 8, 2022.”

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G. Li Requests an IME.

Li responded in a letter dated March 21, and “request[ed]”

that First Unum “conduct an IME.” Li also provided three

additional documents: a March 16 treatment note from Dr. Zhang;

a March 18 letter from Dr. Zhang; and a March 18 report from Dr.

van Gorp.

In response to Li’s request for an IME, First Unum asked

its peer reviewer Dr. Brown to recommend what an IME should

consider and include. On March 22, Dr. Brown recommended a

“psychiatric IME by US based forensic psychiatrist with

experience in disability evaluation.” He further stated that “A

virtual evaluation is acceptable but should include [Minnesota

Multiphasic Personality Inventory – Third Edition (“MMPI-3”)]

administration with appropriate protocol as per manual.”

On First Unum’s behalf, a third party, Dane Street,

scheduled Li for an IME on April 24. First Unum advised Li by

email on March 29 that an interpreter could be arranged if

necessary. On March 31, Li’s counsel objected to the virtual

IME, and requested that First Unum either cancel the scheduled

examination or schedule an in-person examination with a native-

Mandarin speaker.

Li’s counsel also attached a March 31 letter from Dr.

Zhang, in which she explained why, in her view, an IME should be

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conducted in-person and with a Mandarin-speaking local

psychiatrist. Dr. Zhang again stated that she believed that

“any attempt” by Li to “resume work would result in

decompensation, treatment setbacks, and a higher risk of self-

harm or suicide.”

By letter dated April 3, First Unum informed Li that it was

working to reschedule the IME due to “time zone differences” and

the “need for a translator.” In a letter dated April 7, Li’s

counsel notified First Unum that they had scheduled an in-person

psychiatric examination with a Mandarin-speaking psychiatrist

that they chose, Julia Li, M.D., on April 10, 2023.

First Unum accepted. It acknowledged in a letter dated

April 10, 2023 that Li had requested that First Unum cancel the

virtual IME and that Li was attending an in-person IME with Dr.

Julia Li that day. First Unum extended the deadline to complete

its review of Li’s appeal by 45 days, stating that the extension

would “begin after [it] receive[d] the records from the April

10, 2023 [IME].”

On April 14, however, Li’s counsel informed First Unum that

the in-person examination had been delayed to April 21, 2023,

and that it would be conducted by a different doctor, Dr. Peifen

Yao, M.D. In a letter dated April 17, First Unum revised its

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extension of 45 days to begin when it received the examination

report from Dr. Yao.

By letter dated May 2, 2023, Li’s counsel sent Dr. Yao’s

two-page IME report to First Unum. Dr. Yao’s report does not

suggest that he administered an MMPI-3, as Dr. Brown had

recommended. Instead, Dr. Yao stated that he reviewed Dr.

Zhang’s medical records and Dr. van Gorp’s evaluation reports,

and that he agreed with “their findings and diagnosis.” He

further wrote that he “conducted [his] own face to face

examination” but he did not describe any specific observations

or findings beyond saying that Li “[p]resented with very

depressed mood, lack of interest, and low self-esteem.” He then

recounted what Li had apparently told him of his psychological

and physical symptoms in the past two years. Among other

things, this included “poor sleep quality [and] anxiety,

accompanied by the emergence of negative suicidal ideation and

self-harm.”

Li also submitted additional medical records with Dr. Yao’s

report, including Dr. Zhang’s responses to questions that Li’s

counsel posed concerning the report, dated May 2, 2023. Among

other things, Dr. Zhang reiterated her view stated in earlier

letters (of March 18 and March 31) that a return to work by Li

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would “interfere with treatment and would pose an unreasonable

risk of harm . . . as he continued psychiatric care.”

That same day, Dr. Brown reviewed and responded to the new

information, including Dr. Yao’s report and Dr. Zhang’s May 2

letter. He concluded that “[w]hile both [Dr. Yao and Dr. Zhang]

conclude that there is evidence of chronic, severe and ongoing

psychiatric impairment, changes in treatment under consideration

appear, at best, limited.” He reasoned that the new information

was “entirely consistent with previous information analysis and

does not allow me to change my conclusions.”

By letter dated May 3, First Unum provided Dr. Brown’s

supplemental review to Li, informed Li that he had until May 18

to respond to this new information, and reiterated, per its

April 17 letter, that First Unum’s deadline to determine the

appeal was June 16, 2023 -- i.e., 45 days from May 2.

Li’s counsel called First Unum on May 9 and May 10, seeking

an extension of time to submit additional information because Li

was scheduled for another examination. In the May 10 voicemail,

counsel for Li stated that it was Dr. Brown who had

“recommended” an “IME” and that counsel was “following through

with this.” Both requests were denied by First Unum in letters

of May 9 and May 10.

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In the May 9 letter, First Unum stated that Li’s “response”

to First Unum’s new materials must be “received by us no later

than May 18, 2023.” In the May 10 letter, First Unum stated,

correctly, that it was Li who had originally requested an IME,

and that Dr. Brown’s recommendations were made in response to

that request. First Unum explained that Li had already been

granted an extension to conduct an IME of his choosing, but that

it was “not in agreement with [Li’s counsel’s] request for an

extension of time to send [Li] for another examination.”

In a letter dated May 12, 2023, Li’s counsel again asserted

that the second IME was necessary because First Unum “demanded

an MMPI-3 and in the interest of a good faith dialogue, we are

seeking to follow [that] directive.” First Unum reiterated in a

May 16 dated letter that “[t]he medical consultants that

reviewed [Li’s] claim file did not conclude that an IME was

needed in order to review your client’s functional capacity

during the time relevant period.” And it stated again that its

deadline was firm: Li had until May 18 to respond to Dr. Brown’s

supplemental review, and First Unum denied any request for an

“extension of time to send [Li] for another examination.”

H. Second IME with MMPI-3

In a letter dated May 18, Li’s counsel enclosed a report of

a virtual IME conducted on May 16, 2023 by Dr. Bahrach Talei,

24

Psy.D., who is based in California. Dr. Talei conducted a

clinical interview of Li, an MMPI-3, and a review of Li’s

medical records. He stated that the purpose of his examination

was “to assess [Li’s] current level of functioning and his

ability to consistently maintain employment.”

In describing Li’s medical history, Dr. Talei noted that Li

“has been psychiatrically hospitalized on three occasions”

including “around the same time when he started his employment

at McKinsey[.]” He stated that Li worked at McKinsey “in

minimal fashion during times of increased depression.” But he

noted that Li had experienced his “biggest trauma” in 2021 when

he witnessed his long-term partner of eight-years “engaging in

inappropriate activity with another person,” and that he was

currently suffering from symptoms of lack of motivation, sleep

disturbance, problems with memory, and feelings of hopelessness,

among others. Dr. Talei found that Li sometimes “sobbed

uncontrollably,” for example when discussing his cat’s death in

2020.

Li produced scorable responses to all the MMPI-3 items.

Among other things, Dr. Talei found that Li “is at risk for

current suicidal ideation and attempts,” and that Li reported a

“diffuse pattern of cognitive difficulties[,] including memory

problems, difficulty with attention and concentration, and

25

possible confusion.” In summary, Dr. Talei concluded that the

historical treatment records, including letters and records of

Dr. Zhang from December 2022 to May 2023, MMPI-3 assessment

results, and descriptions provided by Li were all consistent

with the diagnosis of major depressive disorder and post-

traumatic stress disorder (“PTSD”). Dr. Talei concluded that Li

was “unable to engage in any employment in a consistent manner,”

and he recommended that Li continue psychiatric treatment and

resume “psychotherapeutic intervention with a new provider.”

I. First Unum’s Appeal Decision

By letter dated May 30, First Unum determined that its

decision to deny Li’s claim had been correct –- i.e., that Li

was not limited from performing the duties of his occupation

through the elimination period. First Unum’s appeal decision

summarized the appeal process and the conclusions of its peer

reviewers, Dr. Brown and Dr. Spica.

First Unum reasoned that Dr. Zhang’s records were “terse”

and did not “give a full psychiatric history,” and her treatment

plan “had been limited to monthly medication management with a

modest, stable psychotropic regimen since February 9, 2022.” It

stated that if Li had truly suffered “severe and ongoing

impairment,” it would have expected to see “further adjustments

26

in medication and, at a minimum, a discussion of the risk and

advantages of additional treatment including psychotherapy.”

First Unum further noted that Dr. van Gorp’s testing had

indicated that Li may have “engaged in a symptom magnification

or malingering.” It acknowledged that Dr. van Gorp had cited

psychological factors as potentially influencing Li’s experience

of cognitive dysfunction, but it concluded that persisting

neurocognitive dysfunction “was not substantiated by the

quantified testing.”

First Unum stated that it had granted Li an extension of

time to go to an examiner of his choosing for an IME, and that

it reviewed the report from Dr. Yao and Dr. Zhang’s additional

responses. First Unum endorsed Dr. Brown’s view developed in

response to these materials that changes in treatment under

consideration appeared “limited” at best. Having considered the

new materials, First Unum remained convinced that Li did not

suffer restrictions and limitations preventing him from

performing his occupational duties through and beyond the

elimination period.

Finally, regarding the report from Dr. Talei, First Unum

stated that it “reflect[ed] historical information collected

from [Li] via a zoom meeting, a records review and information

about [Li’s] current status.” First Unum concluded that Dr.

27

Talei’s “report does not contain any new time relevant clinical

data related to your client’s elimination period,” i.e., the

period from December 8, 2021 to June 8, 2022. First Unum stated

that if counsel “believed [Li] maintained insurance coverage

through the date of [Dr. Talei’s] exam, [Li could] submit a new

claim for consideration.”

J. Li’s Complaint

On August 8, 2023, Li responded to First Unum’s denial of

his administrative appeal by filing this action. He seeks a

declaration of entitlement to benefits under 29 U.S.C. §

1132(a)(1)(B) and for attorneys’ fees under 29 U.S.C. § 1132(g).

Li claims that he is owed a monthly benefit of the policy

monthly maximum, $35,000, from June 8, 2022 onwards until he

turns 65 years old.

On April 15, 2024, the case was reassigned to this Court.

On June 11, the parties filed a joint pretrial order for a bench

trial. On July 19, the parties stipulated to have the case

resolved on a paper record. That record became fully submitted

on October 4, 2024.3

3 On July 19, Li submitted a thirty-page trial brief, as well as

a nearly seventy-page document titled “Proposed Findings of Fact

and Conclusions of Law” (“Proposed Findings”). First Unum

argues that the Court should disregard the Proposed Findings

because Li used them to exceed the parties’ briefing page

limits.

28

Discussion

At the outset, the parties dispute what standard of review

applies to the challenge to First Unum’s denial of benefits.

For the reasons that follow, the Court reviews the First Unum

decision under the arbitrary and capricious standard. Turning

to the merits, First Unum’s decision to deny Li’s claim for

benefits was supported by substantial evidence.

I. Standard of Review

ERISA § 1132(a)(1)(B) provides that a “civil action may be

brought . . . by a participant or beneficiary [of a covered

ERISA plan] . . . to recover benefits due to him under the terms

of his plan.” Generally, a court reviews a plan administrator’s

decision to deny ERISA benefits under § 1132(a)(1)(B) de novo.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989);

see also Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d

Cir. 2009). To obtain a more deferential review, written plan

documents must grant a plan administrator discretionary

authority to determine eligibility for benefits. Hobson, 574

F.3d at 82. Even then, however, a plan administrator’s failure

In fairness to its adversary, Li should have advised First

Unum of its plan to file the Proposed Findings. Any prejudice

to First Unum is limited, however, since it is the

administrative record that provides the basis for this Opinion’s

findings and conclusions.

29

to strictly comply with applicable ERISA regulations will

ordinarily require de novo review. Halo v. Yale Health Plan,

Dir. of Benefits & Recs. Yale Univ., 819 F.3d 42, 57-58 (2d Cir.

2016). As discussed below, because the ERISA plan grants First

Unum discretion and First Unum complied with the relevant

regulations, arbitrary and capricious review applies.

A. The Plan Grants First Unum Discretion.

Where “written plan documents confer upon a plan

administrator the discretionary authority to determine

eligibility,” a court may “not disturb the administrator’s

ultimate conclusion unless it is arbitrary and capricious.”

Hobson, 574 F.3d at 82 (citation omitted). To trigger the more

deferential standard of review, a benefit plan need not

“actually use the words ‘discretion’ or ‘deference,’” but the

language must be sufficiently clear in communicating that the

administrator reserves discretion to interpret and apply the

plan. Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 108

(2d Cir. 2005). Because “the plan administrator bears the

burden of proving that the arbitrary and capricious standard of

review applies,” any “ambiguity in the wording of the policy

should be resolved against” the administrator. Kinstler v.

First Reliance Standard Life Ins. Co., 181 F.3d 243, 252 (2d

Cir. 1999).

30

“ERISA itself does not make plain where one looks to find

the ‘terms’ of an ERISA plan, other than to mandate that

‘[e]very employee benefit plan shall be established and

maintained pursuant to a written instrument.’” Silverman v.

Teamsters Loc. 210 Affiliated Health & Ins. Fund, 761 F.3d 277,

286 (2d Cir. 2014) (quoting § 1102(a)(1)). The Second Circuit

has identified two documents that, depending on the

circumstances, may set forth

plan terms: (1) the governing plan document, i.e., the

trust agreement or contract under which the plan was

formed; and (2) the summary plan description (“SPD”),

a plain-English summary of plan benefits and

obligations that the plan administrator must file with

the United States Department of Labor and provide to

each participant and beneficiary of the plan.

Id. at 286–87. In some cases, “the SPD may be the only plan

document.” Id. at 287 (citation omitted). But where both the

governing plan document and the SPD set out plan terms, both

documents “must be made available by the plan administrator ‘for

examination by any plan participant or beneficiary.’” Id.

(quoting 29 U.S.C. § 1024(b)). In short, “the documents that

lay out the plan terms must be readily accessible in written

form to all covered employees.” Id.

Here, First Unum issued to McKinsey the Policy, effective

July 1, 1987. The Policy explains that it is a “complete

contract” that consists of: “a. all of the pages; b. the policy

31

specifications; c. the attached application of the policyholder;

d. each employee’s application for insurance.” A “Certificate

of Coverage” explains to employees of McKinsey that First Unum

has welcomed McKinsey as a client and provides a “plain English”

overview of the Policy to those employees. The Certificate of

Coverage and the Policy contain many of the same terms. The

Certificate of Coverage explains, however, that if its terms and

the terms of the Policy “differ,” the Policy’s terms govern.

The “Additional Summary Plan Description Information” is

attached to the Certificate. It explains that the Policy,

Certificate, and the Additional Summary Plan Description

Information document together constitute the ERISA Plan:

If this [P]olicy provides benefits under a Plan which

is subject to [ERISA], the following provisions apply.

These provisions together with your [C]ertificate of

[C]overage constitute the summary plan description

[“SPD”]. The [SPD] and the [P]olicy constitute the

Plan. Benefit determinations are controlled

exclusively by the [P]olicy, your [C]ertificate of

[C]overage, and the information in this document.

The SPD also explains that McKinsey is the Plan

Administrator and named fiduciary of the Plan, “with authority

to delegate its duties.” It further states that benefits are

“administered by [First Unum] and provided in accordance with

the insurance policy issued to the Plan.” In its role as Plan

Administrator, McKinsey delegated to First Unum and its

affiliate, Unum Group, “discretionary authority to make benefit

32

determinations under the Plan.” The SPD explains that “Benefit

determinations include determining eligibility for benefits and

the amount of any benefits, resolving factual disputes, and

interpreting and enforcing the provisions of the Plan.”

In addition, the SPD grants the employer, McKinsey, “the

right, in its sole and absolute discretion, to amend, modify, or

terminate, in whole or in part, any or all of the provisions of

this Plan.” McKinsey as employer, however, cannot unilaterally

alter the Policy: the SPD notes that “the Employer may request a

[P]olicy change,” but “[o]nly an officer or registrar of [First

Unum] can approve a change,” and any “change must be in in [sic]

writing and endorsed on or attached to the [P]olicy.” This

comports with language in the Policy, which explains that it

“may be changed in whole or in part,” but only an officer or

registrar can approve a change and “approval must be in writing

and endorsed on or attached to this [P]olicy.”

Reviewing these terms, the Plan unambiguously provides

First Unum with discretionary authority to determine whether a

claimant, such as Li, is entitled to benefits. Li disagrees,

but his arguments fail.

Relying on CIGNA Corp. v. Amara, 563 U.S. 421 (2011), Li

first contends that the SPD cannot be the means by which legal

rights are created. Li is mistaken. The Amara Court addressed

33

whether an employer had given employees adequate notice of a

change to its pension plan. The employer’s ERISA plan did not

expressly incorporate the terms of the SPD, and the Court

“simply did not address whether summary plan description terms

could be enforced when the written instrument expressly

indicated that they should be.” Tetreault v. Reliance Standard

Life Ins. Co., 769 F.3d 49, 56 (1st Cir. 2014). Thus, the

following statement in Amara -- that SPDs, “important as they

are, provide communication with beneficiaries about the plan,

but . . . their statements do not themselves constitute the

terms of the plan”, 563 U.S. at 438 –- has little relevance

where, as here, the language in the written plan documents

expressly state that the SPD is part of the Plan.

As the Second Circuit has explained, an ERISA plan may

include multiple documents, including an SPD. Silverman, 761

F.3d at 286. And where SPDs are expressly incorporated into an

ERISA plan, their terms are enforceable as part of the ERISA

plan. This is true even though the language of incorporation

appears only in the SPDs themselves. See, e.g., Aschermann v.

Aetna Life Ins. Co., 689 F.3d 726, 729 (7th Cir. 2012) (“There

is no reason why an employer cannot make a summary plan

description be part of the plan itself.”); Eugene S. v. Horizon

Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1131 (10th Cir.

34

2011) (“[A]n insurer is not entitled to deferential review

merely because it claims the SPD is integrated into the Plan.

Rather, the insurer must demonstrate that the SPD is part of the

Plan, for example, by the SPD clearly stating on its face that

it is part of the Plan.”); see also Tetreault, 769 F.3d at 56

(“[E]very court that has considered the issue has held that

Amara poses no automatic bar to a written instrument’s express

incorporation of terms contained in a summary plan

description.”); Tietjen v. Unum Life Ins. Co. of Am., No.

16cv7021 (JMF), 2017 WL 4286317, at *2 (S.D.N.Y. Sept. 26,

2017).

Second, Li points to decisions holding that an SPD’s terms

are unenforceable if its terms conflict with the Plan itself.

See, e.g., Park Ave. Aesthetic Surgery, P.C. v. Empire Blue

Cross Blue Shield, No. 19cv9761 (JGK), 2021 WL 665045, at *6

(S.D.N.Y. Feb. 19, 2021). These cases have limited relevance,

however, when the SPD is a component of the Plan. See Eugene

S., 663 F.3d at 1131.

In any event, Li has failed to show that the SPD conflicts

with the Policy. Li first asserts that the SPD and the Policy

conflict because the Policy states that it is comprised of

certain documents that constitute the “complete contract” --

i.e., the complete Policy -- and the SPD is not one of them.

35

There is no dispute, however, that the Policy constitutes the

complete contract between First Unum and McKinsey. Nothing in

the Policy suggests, however, that the SPD cannot be a component

of the ERISA Plan.

Second, Li argues that the SPD conflicts with the Policy’s

amendment procedure. Not so. Both the Policy and SPD explain

that amendments may only be made by a representative of First

Unum and in a writing attached to the Policy. Placing certain

Plan terms, including those on benefit determinations, in the

SPD was not an amendment of the Policy; the Policy is silent on

how benefit determinations will be made.

Finally, Li argues that First Unum is collaterally estopped

from arguing that it has discretion over benefit decisions. Li

relies on a decision that applied de novo review to the denial

of benefits under a First Unum policy that is apparently

identical in all material terms to the policy at issue here.

See Forman v. First Unum Life Ins. Co., 469 F. Supp. 3d 367

(E.D. Pa. 2020). Forman treats the Policy as the sole plan

document and concludes that “the Policy and SPD are in conflict

in that the Policy does not include a grant of discretion to

First Unum but the SPD does.” Id. at 371.

In invoking Forman, Li relies on the doctrine of nonmutual

offensive collateral estoppel, which is a form of issue

36

preclusion. The doctrine “precludes a defendant from

relitigating an issue the defendant has previously litigated and

lost to another plaintiff.” Bifolck v. Philip Morris USA Inc.,

936 F.3d 74, 79 (2d Cir. 2019) (citation omitted). Forman will

not be followed here. Its analysis is at odds with the Second

Circuit’s instruction that an SPD may set forth plan terms. See

Silverman, 761 F.3d at 286-87.

B. Unum Complied with Applicable Regulations.

Li next argues that even if the Plan grants First Unum

discretion to decide benefit eligibility, de novo review of its

decision is required because First Unum failed to adhere

strictly to 29 C.F.R. § 2560.503-1, which is the claims

procedure regulation promulgated pursuant to ERISA. See Halo,

819 F.3d at 57–58. This argument fails.

ERISA explains that a claims administrator must:

(1) provide adequate notice in writing to any

participant or beneficiary whose claim for benefits

under the plan has been denied, setting forth the

specific reasons for such denial, written in a manner

calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant

whose claim for benefits has been denied for a full

and fair review by the appropriate named fiduciary of

the decision denying the claim.

29 U.S.C. § 1133(1)-(2) (emphasis supplied). ERISA’s claim

procedure regulation, 29 C.F.R. § 2560.503-1, in turn sets forth

minimum requirements for ERISA plan procedures pertaining to the

37

review of claims for benefits, including disability benefits.

See McQuillin v. Hartford Life & Accident Ins. Co., 36 F.4th

416, 418 (2d Cir. 2022); see also 29 C.F.R. § 2560.503-1(a); id.

§ 2560.503-1(h)(4). The plan administrator bears the burden of

establishing strict compliance with these regulations. Halo,

819 F.3d at 58.

Li contends that First Unum did not strictly comply with

two provisions of 29 C.F.R. § 2560.503-1. They are 29 C.F.R. §§

2560.503-1(h)(3)(iii)(“Subsection H”), which applies to the

substance of an appellate review, and 2560.503-1(g)(1)(vii)(A)

(“Subsection G”), which pertains to the duty to explain an

initial adverse benefits determination. His arguments fail.

1. Subsection H

Subsection H of the regulations requires consultation with

appropriate experts during an appellate review of a benefit

determination. It states that,

in deciding an appeal of any adverse benefit

determination that is based in whole or in part on a

medical judgment, . . . the appropriate named

fiduciary shall consult with a health care

professional who has appropriate training and

experience in the field of medicine involved in the

medical judgment.

Id. § 2560.503(1)(h)(3)(iii)(emphasis supplied). The

review on appeal must take “into account all comments,

documents, records, and other information submitted by the

38

claimant relating to the claim, without regard to whether

such information was submitted or considered in the initial

benefit determination.” 29 C.F.R. § 2560.503-1(h)(2)(iv).

During the appeal process, First Unum obtained peer

reviews from Dr. Brown (a psychiatrist) and Dr. Spica (a

neuropsychologist) of the Li benefits determination. These

medical experts provided updated evaluations to First Unum

as Li submitted additional materials during his appeal.

Li contends that First Unum failed to adhere to Subsection

H because a First Unum employee determined that Dr. Talei’s

report, which was submitted on the final day of the appeal

period, was not time relevant and did not need to be reviewed by

a healthcare professional. The decision not to submit Dr.

Talei’s report to a medical expert did not violate Subsection H.

Subsection H does not require a health care professional to

review every document submitted by an applicant. Instead, it

requires the plan administrator to take into account all

materials submitted by a claimant and, in making an appeal

decision based on a medical judgment, to consult with a health

care professional with appropriate training. See 29 C.F.R. §

2560.503-1(h)(2)(iv); id. § 2560.503(1)(h)(3)(iii). First Unum

did so.

39

2. Subsection G

Subsection G requires that an initial adverse benefit

determination must include, among other things,

[a] discussion of the decision, including an

explanation of the basis for disagreeing with or not

following . . . (i) The views presented by the

claimant to the plan of health care professionals

treating the claimant and vocational professionals who

evaluated the claimant[.]

29 C.F.R. § 2560.503-1(g)(1)(vii)(A). First Unum has shown that

it complied with Subsection G. The initial denial of Li’s claim

for benefits summarized the views of Dr. Zhang and of First

Unum’s peer reviewers, and it articulated the basis for First

Unum’s decision, including by explaining why it did not agree

with the views of Dr. Zhang.

Li argues that First Unum failed to adhere strictly to the

regulations by not providing “any explanation for disagreeing

with the views of . . . Dr. Zhang regarding how work activity

would put Li at further risk of further decompensation,

suicidality, and self-harm,” as described in Dr. Zhang’s letters

of March 18, March 31, May 2, and May 20, 2023. These letters

were sent after First Unum had issued its initial adverse

determination and therefore are not governed by Subsection G.

ERISA contains, however, a parallel notification requirement for

benefit determinations “on review.” It states that the “plan

40

administrator shall provide a claimant . . . of a plan’s benefit

determination on review” with:

A discussion of the decision, including an explanation

of the basis for disagreeing with or not following:

(A) The views presented by the claimant to the plan of

health care professionals treating the claimant[.]

29 C.F.R. § 2560.503-1(j)(6)(i)(A) (“Subsection J”). Even if

the Court were to construe Li’s argument regarding Subsection G

to concern Subsection J, First Unum has shown that it adhered to

that provision as well.

The first three of these four letters from Dr. Zhang were

timely submitted by Li and First Unum acknowledged receipt of

each of the three letters and addressed Dr. Zhang’s views in

those letters.4 In his review of the May 2 letter, Dr. Brown

opined that, while Dr. Zhang concluded that there was “evidence

of chronic, severe, and ongoing psychiatric impairment, [any]

changes in treatment under consideration appear at best,

limited.” Dr. Brown thus concluded that “the additional

information” provided by Dr. Zhang was “entirely consistent with

previous information analysis and does not allow me to change my

conclusions.”

First Unum provided Li with a copy of Dr. Brown’s review by

letter dated May 3, and First Unum’s May 30 appeal decision

4 The letter from Dr. Zhang of May 20, 2023 was sent after the

May 18, 2023 deadline for Li’s submissions.

41

relied on Dr. Brown’s assessment, as well as that of Dr. Spica.

Specifically, First Unum summarized and endorsed Dr. Brown’s

opinion that the records from Dr. Zhang were “extremely terse”

and “do not give a full psychiatric history.” It added that the

“[t]reatment of symptoms of anxiety and depression had been

limited to monthly medical management with a modest, stable

psychotropic regimen since February 9, 2022.”

In short, First Unum has shown that its appeal process took

into account all of Dr. Zhang’s timely submissions and provided

Li with its basis for disagreeing with her views. That is

sufficient to comply with Subsection J.

II. First Unum’s Denial of Benefits Was Supported by

Substantial Evidence.

Under the arbitrary and capricious standard of review, a

court “may overturn an administrator’s decision to deny ERISA

benefits only if it was without reason, unsupported by

substantial evidence or erroneous as a matter of law.” Hobson,

574 F.3d at 83 (citation omitted). This is a “narrow” scope of

review, and a court is “not free to substitute [its] own

judgment for that of the insurer as if we were considering the

issue of eligibility anew.” Id. at 83–84 (citation omitted).

Substantial evidence is “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

42

preponderance.” Miller v. United Welfare Fund, 72 F.3d 1066,

1072 (2d Cir. 1995) (citation omitted). Accordingly, the

question is not whether the administrator made the “correct

decision” but rather whether it “had a reasonable basis for the

decision that it made.” Hobson, 574 F.3d at 89 (citation

omitted). A court’s review under the arbitrary and capricious

standard is limited to the administrative record. Miller, 72

F.3d at 1071. Li bears the burden of proving that he is

eligible for disability benefits. See Critchlow v. First UNUM

Life Ins. Co. of America, 378 F.3d 246, 256 (2d Cir. 2004).

A plan administrator is entitled to weigh the competing

opinions of different medical experts, including the conflicting

opinions of treating versus non-treating physicians. A court

may not “require administrators automatically to accord special

weight to the opinions of a claimant’s physician.” Black &

Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). Nor

may a court “impose on plan administrators a discrete burden of

explanation when they credit reliable evidence that conflicts

with a treating physician’s evaluation.” Id.

A plan administrator may accord less weight to subjective

complaints of a claimant where the claimant fails to produce

objective corroboration. Hobson, 574 F.3d at 88. According

“weight to objective evidence that a claimant’s medical ailments

43

are debilitating [guards] against fraudulent or unsupported

claims of disability.” Id.

Here, Li has failed to show that the decision to deny him

benefits was either arbitrary or capricious. First Unum

grounded its appeal decision in the opinions of its peer

reviewers, Dr. Brown and Dr. Spica. In doing so, First Unum

articulated why it disagreed with or did not need to follow the

opinions of Dr. Zhang, Dr. van Gorp, Dr. Yao, and Dr. Talei.

First Unum had notified Li in its initial denial of benefits

that the primary objective evidence of Li’s psychiatric

disability would be a treatment plan that increased in intensity

as time passed without reported improvement -- and that Dr.

Zhang’s treatment notes from before, during, and after the

elimination period failed to provide such objective evidence.

Even as Li submitted additional materials from Dr. Zhang, Dr.

Brown continually expressed the view that Dr. Zhang’s treatment

plan had not changed in any material respect over the months

that she treated him.

In essence, First Unum offered a reasoned analysis of the

relevant record materials, and its decision to deny Li’s appeal

was supported by substantial evidence. See Miller, 72 F.3d at

1072. Grounded in its peer reviewers’ assessments, it was not

unreasonable for First Unum to conclude that the primary

44

objective evidence of Li’s condition during the elimination

period -- namely Dr. Zhang’s treatment notes -- did not suggest

that Li was suffering from a sufficiently severe disability that

prevented him from returning to work.

In his challenge to First Unum’s decision, Li has relied

almost exclusively on his argument that de novo review of the

decision is required. Nonetheless, Li has listed several

reasons why First Unum’s decision was not supported by

substantial evidence. None prevails.

First, Li contends that First Unum’s decision to not have a

medical professional review Dr. Talei’s report on grounds that

it was not “time relevant” to Li’s elimination period was

arbitrary and capricious. That decision, however, finds

sufficient support in the record.

On its face, Dr. Talei’s report states that its purpose is

to assess Li’s “current level” of functioning and his ability to

maintain employment. Dr. Talei does not claim that he reviewed

Dr. Zhang’s treatment notes from August 2021 through June 2022,

nor does he otherwise opine on Li’s condition during the

elimination period. Instead, he notes that he reviewed records

dated between July 2022 to May 2023 -- all of which were created

after the elimination period. Accordingly, it was reasonable

for First Unum to conclude that Dr. Talei’s May 2023 report did

45

not provide or offer any analysis of “time relevant clinical

data related to [Li’s] elimination period.”

Second, Li presses that First Unum acted arbitrarily and

capriciously by instructing its peer reviewers to limit their

assessment to the elimination period only. This contention has

no support in the record. First Unum instructed both Dr.

Ursprung and Dr. Brown to assess whether Li suffered

restrictions and limitations precluding him from working

throughout the elimination period and beyond. And as Li

submitted additional assessments on appeal, First Unum had peer

reviewers assess many of those materials as well.

Third, Li contends that First Unum’s peer reviewers made

assertions that were “demonstrably contrary to the factual

record.” He identifies four purported errors. The first is the

peer reviewers’ conclusion that Dr. Zhang’s changes to Li’s

treatment “appear, at best, limited.” There was ample support

in the record for this conclusion.

The remaining three purported errors pertain to the

reviewers’ analysis of Dr. van Gorp’s neuropsychological

evaluation. They are the reviewers’ conclusions that the

results of that evaluation were “normal” and suggested symptom

exaggeration; and that the reviewers required the presence of a

neurocognitive disorder. Li misconstrues the record. It was Li

46

himself who introduced the issue of a cognitive impairment.

Li’s attorney asked Dr. van Gorp to assess Li’s “cognitive” and

emotional status. Dr. van Gorp concluded, inter alia, that Li

had a “cognitive impairment.” First Unum submitted Dr. van

Gorp’s report to Dr. Spica to opine on whether the testing done

by Dr. van Gorp was valid and the level of cognitive impairment

it demonstrated, among other things. Dr. Spica discussed Dr.

van Gorp’s report in some detail, noting that the testing did

not exhibit consistent evidence of neurocognitive dysfunction

rising to the level of impairment and, “appropriately, Dr. van

Gorp did not provide a Cognitive Disorder diagnosis.” As to Dr.

Spica’s reference to Li’s performances on some of Dr. van Gorp’s

tests as being “well within normal limits,” that is what Dr. van

Gorp’s report reflects. Finally, Dr. Spica described Li’s

failures on “multiple indices” aimed at assessing validity of

the examination as results that “may” indicate symptom

magnification or malingering. Li has not shown that Dr. Spica’s

professional opinion regarding the validity of the test results

was contrary to the factual record.

Fourth, Li argues that First Unum acted arbitrarily because

it did not address the risks of self-harm associated with Li’s

condition. The issue of self-harm was first raised by Dr. van

Gorp in a December 2022 evaluation, and later in letters from

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Dr. Zhang, all of which were materials submitted during the

appeal process. The record contains no evidence that Dr. Zhang

considered Li at risk of self-harm during the elimination

period. It is not reflected in Dr. Zhang’s treatment notes, in

her management of Li during the elimination period, or in Li’s

application for benefits. Dr. Brown and Dr. Spica reviewed

material that Li submitted on appeal that contained references

to Li’s risk of harm and stood by their assessments that Li was

not disabled within the meaning of the Plan. First Unum was not

required, as Li suggests, to go further.

Finally, in his reply brief, Li advances only one argument

as to why First Unum’s determination was arbitrary and

capricious: in his view, it was “unreasonable” for First Unum

“to ignore the opinions of all qualified medical professionals

who . . . examined [Li],” instead siding with First Unum’s non-

treating physicians. This follows from his broader argument in

his opening brief that the Court should, in exercising de novo

review, “assign more weight to Li’s treating psychiatrist,” Dr.

Zhang, and less to First Unum’s “non-examining reviewers.”

First Unum was not required, however, to “accord special

weight” to any examining physician, including Li’s treating

physician, Dr. Zhang, provided that First Unum’s decision was

not arbitrary. Nord, 538 U.S. at 834. As discussed, First Unum

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provided a reasoned explanation for discounting the opinions of

Dr. Zhang and the other physicians that examined Li. Dr. Brown

and Dr. Spica offered detailed, substantive analysis of the

relevant record materials and of Li’s condition based on those

materials. Li has not shown that First Unum acted arbitrarily

when it relied on those peer reviewers’ assessments and denied

Li’s application for benefits.

III. Li Has Not Established Good Cause to Expand the

Record.

Li argues that this Court should consider evidence outside

that administrative record. In an ERISA benefits dispute, “the

presumption is that judicial review is limited to the record in

front of the claims administrator unless the district court

finds good cause to consider additional evidence.” Muller v.

First Unum Life Ins. Co., 341 F.3d 119, 125 (2d Cir. 2003)

(citation omitted). This is because “trial de novo on new

evidence would be inconsistent with reviewing the

administrator’s decision about whether to grant the benefit.”

Id. (citation omitted). “A demonstrated conflict of interest in

the administrative reviewing body is an example of ‘good cause’

warranting the introduction of additional evidence.” DeFelice

v. Am. Int'l Life Assur. Co. of New York, 112 F.3d 61, 67 (2d

Cir. 1997).

49

Li argues that good cause exists to admit certain records

from June 2023 through July 2024, specifically updated medical

records, an affidavit from Li, and an additional letter from Dr.

Zhang. Specifically, Li asserts that these records “factually

contradict” First Unum’s stance that Li’s treatment plan was

inconsistent with a severe psychiatric impairment.

Li has not shown that good cause exists to go beyond the

administrative record. First Unum gave Li “ample time to submit

additional materials.” Muller, 341 F.3d at 119. And First Unum

analyzed and responded to those materials in a reasoned manner

that is supported by substantial evidence. There is no basis to

depart from the traditional presumption of limiting review to

the administrative record as it existed when First Unum made its

decision on appeal.

Conclusion

The Clerk of Court is directed to enter judgment for First

Unum and to close the case.

Dated: New York, New York

January 29, 2025

fiw ji x, .

DENISE COTE

United States District Judge

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