IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

CAROL A. POST, : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 04-3230

:

HARTFORD INSURANCE :

COMPANY, :

:

Defendant. :

____________________________________:

MEMORANDUM

ROBERT F. KELLY, Sr. J. OCTOBER 2, 2008

Carol A. Post (“Post”) brought this action against Hartford Insurance Company

(“Hartford”) alleging that Hartford violated her rights under the Employee Retirement Income

Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”) when they decided that she was no longer

“Totally Disabled” as defined by their long-term disability insurance plan. Presently, before us

is a remand from the Court of Appeals from a reversal, in part, of a grant of a Motion for

Summary Judgment for Hartford. For the reasons which follow, upon remand, Hartford’s

Motion for Summary Judgment is denied, and judgment is entered in favor of Post. 

I. BACKGROUND

A. The Overlook Hospital Association Long Term Disability Benefit Plan

Post worked as both a dentist and a pharmacist for the Overlook Hospital Association. 

Post participated in a group long-term disability (“LTD”) benefit plan created by Overlook

Hospital Association with Hartford as the insurer. Hartford’s Plan explicitly gives its

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administrator the discretionary authority to determine eligibility for benefits and to interpret all

“terms and provisions of the Group Insurance Policy.” Hartford both funds and administers the

benefits of the Plan. Under the Plan: 

Totally Disabled means that: (1) during the Elimination Period; and (2) for the

next 24 months, you are prevented by Disability from doing all the material and

substantial duties of your own occupation. After that, and for as long as you

remain Totally Disabled, you are prevented by Disability from doing any

occupation or work which you are or could become qualified by: (1) training; (2)

education; or (3) experience.

(HLI00005). The Plan also provides that Hartford can terminate benefits for, among other

reasons, failure of the claimant to offer proof of a continued disability or refusal to submit to an

examination required by Hartford. (HLI00023). The monthly benefit paid under the Plan is

offset by the amount of any “other income from any employer or for any work” paid to the

claimant, as that term is defined in the Plan. (HLI00027). Post voluntarily contributed to this

LTD benefit plan and was eligible to receive benefits under it on January 1, 1993. 

B. Post is Granted Benefits

On October 20, 1993, Post had major dental surgery that kept her out of work for five

weeks. (HLI01092). On November 27, 1993, just a few days after returning to work, Post was a

passenger in a car that was rear-ended and pushed into traffic where two more motor vehicles

collided with it. (HLI00764). 

Post was seen and treated at the North Jersey Health & Pain Relief Center. On May 10,

1994, Carol N. Cote, Director of Physical Therapy at this center, reported that Post’s symptoms

were “consistent with traumatic cervical thoracic and lumbar strain with secondary dysfunction

involving the entire upper and mid cervical as well as the thoracic and lumbar spine. She also

has a posture syndrome which is perpetuated by the dysfunction and muscle strain.”(HLI00454-

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57). 

Post returned to work again in January 1995. On March 15, 1995, Gregory J. Mulford,

M.D., a specialist in rehabilitative medicine, determined that Post “will continue with her

attempts at working full-time, but if her pain persists she may be forced to look at long-term

disability as an option.” (HLI00986). Post attempted to work as a pharmacist, but stopped

working on May 24, 1995, due to pain caused from intractable cervical pain and lumbar

radiculopathy. (HLI01299). 1

Post was subsequently treated at New York Presbyterian Hospital by a number of

physicians, including Dr. Mulford and neurologist, Carolyn D. Britton, M.D.,. In several reports

and Physical Capacity Evaluation forms over the course of the next two years, Dr. Britton

diagnosed Post with “chronic, persistent and severe cervical pain,” and opined that she was

disabled from all types of work. (HLI00945-46; HLI01017; HLI00956-57; HLI000952). 

Likewise, during this time period, Dr. Mulford determined that Post continued to have pain in

the upper cervical spine, which rendered her unable to return to her previous job. (HLI00981-

82). 

2

On April 26, 1996, Post completed a Total Disability Claim indicating that she was

totally disabled because, as a result of the accident, she was suffering from cervical sprain/strain,

Radiculopathy- a disease of the nerve roots. Dorland’s Illustrated Medical Dictionary, 1

Twenty-eighth Edition, at1404 (1994) (“Dorland’s”). 

The reports of Drs. Britton and Mulford, as well as Post’s other examining physicians,

2

will be discussed in more detail, infra.

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severe chronic myofascial pain syndrome, cervical facet joint arthropathy and occipital and 3 4

suboccipital neuralgia. (HLI01012-23). On March 24, 1997, Hartford wrote Post informing her 5

that her claim for LTD benefits was approved, effective November 21, 1995 through December

13, 1997. (HLI00895-98). Hartford also informed Post that, in order to qualify for benefits

beyond December 6, 1997, she would be required to meet the Plan definition of “Total

Disability” because that was the date when the Elimination Period plus 24 months was over. 

Hartford also informed Post that it had changed the definition for “Total Disability”from that of

being prevented from performing her own occupation, to being prevented from performing any

occupation. (HLI00895-96; HLI00005). 

Subsequent to Hartford’s determination, Post continued to be treated by Dr. Britton

throughout the rest of 1997 and through 2000. Dr. Britton continued to opine that Post’s

condition remained unchanged, and that she was disabled from all gainful employment. 

(HLI00886-87; HLI00866; HLI00817-18). Post was also examined and treated by several other

physicians from May 1997 through 2002, including Dr. Ellen Field-Munves, M.D., a

rheumatologist, (HLI00746-48), Russell J. Rentler, M.D., Andrew G. Kaufman, M.D., and

Russell K. Portenoy, M.D. (HLI01223-1224, HLI01217-1220, HLI01211- 01213).6

In early 2000, Hartford began to investigate whether Post continued to be disabled. This

Myofacial- pertaining to or involving the fascia surrounding and associated with muscle 3

tissue. Dorland’s at 1092.

Arthropathy- any joint disease. Dorland’s at 141. 4

Neuralgia- pain extending along the course of one or more nerves. Dorland’s at 1127. 5

On September 28, 1998, the Social Security Administration notified Post that she had 6

been awarded Social Security disability benefits. (HLI00540-542). This will also be further

discussed, infra.

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investigation included a surveillance of Post’s home which proved unsuccessful as it was

reported to Hartford that “claimant was not observed leaving her home.” (HLI00793). It also

included efforts to obtain Post’s tax records from 1995 to 1999, and a Claimant Questionnaire. 

(HLI00793). 

In June 2001, Hartford also attempted to have a third party, Empire Medical

Management, set up a Functional Capacity Evaluation (“FCE”) to evaluate Post’s claim for

continued benefits. (HLI01048-49). The parties disagree on whether Post refused the FCE. 

Hartford claims it instructed Empire Medical to make arrangements through Post’s lawyer,

(HLI00314), and that its efforts were rebuffed by Post’s lawyer, who claimed Post had not

agreed to submit to an FCE. (HLI00059-60). Post claimed that she never refused to undergo an

FCE, nor was she under an obligation of the LTD policy to schedule one. Nonetheless, Empire

Medical Management notified Hartford on June 18, 2001, that Post refused to submit to the FCE. 

(HLI01282-83). 

Thereafter, Hartford directed that Post’s medical records be reviewed by Ekaterina

Malievskaia, M.D., an Associate Medical Director of the Medical Advisory Group (“MAG”). 

After a review of the records, Dr. Malievskaia concluded that she “found no objective evidence

substantiating this claimant’s inability to perform sedentary to light occupation.” (HLI01303). 

C. Hartford Terminate’s Post’s LTD Benefits, Post Appeals and is Denied

On January 4, 2002, Hartford terminated Post’s LTD benefits because she was “no longer

Totally Disabled as defined and is no longer eligible for benefits under this policy.” (HLI01240-

46; HLI01281). Hartford cited the medical record, Dr. Malievskaia’s report, and its assumption

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that Post refused to undergo an FCE, as evidence that she was no longer disabled. Hartford

concluded that Post was capable of sedentary to light work, and that the Dictionary of

Occupational Titles lists both Pharmacist and Dentist as light work. (HLI01240-46). 

On January 10, 2002, Post appealed Hartford’s decision to terminate her benefits. 

(HLI01279). Post disagreed with the medical record and the finding that she had refused to

submit to an FCE. On January 13, 2002, Russell J. Rentler, M.D., Post’s then-treating general

physician, sent a letter to Hartford stating: 

This letter is in regards to my patient Dr. Carole Post. As you know, she has been

on long-term disability due to a chronic illness stemming from an automobile

accident. She suffers from a myofascial pain syndrome, chronic fatigue syndrome

and chronic headaches. She has been on multiple narcotics and is currently

unable to function in any work capacity due to her severe disabling symptoms. 

She has seen multiple specialists including neurologists, orthopedists, physiatrists,

and pain management specialists who have all concurred with her diagnoses. It is

my understanding that you have requested she undergo a functional capacity test. 

I strongly recommend that she cannot undergo this test since it will exacerbate her

symptoms. The patient recently attempted to clean her window and was [at] my

office later with severe upper extremity pain and weakness. The date of that visit

was December 17 of this year. I hope this information has been helpful to you

and will clarify my reasoning for why this patient need not undergo further testing

of her functional capacities. 

(HLI01278).

On March 25, 2002, Hartford upheld its termination of Post’s LTD benefits. Hartford

gave no weight to Dr. Rentler’s letter stating that it was inconsistent with his contemporaneous

notes. (HLI01238). Once again, Hartford found that the medical evidence showed that Post no

longer met the policy definition of total disability. (HLI01238). Given that Post raised concerns

that Hartford failed to provide written notification of its intent to have her undergo an FCE, and

because there was confusion over who was responsible for arranging the evaluation, Hartford

agreed to arrange for Post to undergo an examination, and agreed to consider the results of such

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to determine whether Post continued to be eligible for LTD benefits. (HLI01239). 

Post’s next step was to file a Complaint with this Court on April 8, 2002. Ultimately,

the case was dismissed without prejudice by stipulation of the parties. Among other conditions,

the parties agreed that Post would be given an additional appeal, conditioned on her producing

all her additional medical records and submitting to a FCE. Afterwards, Hartford would

determine whether an Independent Medical Evaluation (“IME”) and/or an Independent Medical

Review would be necessary. Following the settlement, Post informed Hartford that her doctors

would not give her a prescription for an FCE because this type of examination would exacerbate

her symptoms. Therefore, the parties agreed to allow Post to undergo an IME in place of the

FCE. 

D. Post Undergoes an IME, and Hartford Denies Post’s Appeal Again

On August 14, 2003, Christopher G. Lynch, M.D., conducted an IME of Post. 

(HLI01083-88). Dr. Lynch did not find objective evidence to support total disability, but instead

found that Post’s apparent disability was based totally upon her subjective complaints. 

According to Dr. Lynch, the objective medical evidence was not consistent with Post’s reported

level of impairment, and he concluded that she could perform sedentary or light work.

(HLI01087). On October 2, 2003, Hartford upheld its decision to terminate Post’s benefits,

effective January 4, 2002, based on the IME conducted by Dr. Lynch. (HLI01068). 

Post filed this action in the Court of Common Pleas of Lehigh County, Pennsylvania on

or about June 17, 2004. Hartford removed it to this Court on July 8, 2004. Post filed a Motion

to Remand on August 13, 2004, which was voluntarily withdrawn by stipulation of the parties on

September 21, 2004. The parties also agreed to allow Post to amend her Complaint. Post filed

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an Amended Complaint on October 15, 2004. Post filed a Second Amended Complaint on

March 10, 2005 alleging that Hartford violated Sections 502(a)(1) and 502(a)(2) of the 7 8

Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”). Hartford filed

a Motion for Summary Judgment on June 17, 2005. 

II. COURT DECISIONS

A. This Court’s Prior Decision

Deciding Hartford’s Motion for Summary Judgment required us to consider two

standards of review: the summary judgment standard pursuant to Federal Rule of Civil Procedure

56, and the arbitrary and capricious standard under ERISA. Byrd v. Reliance Std. Life Ins. Co.,

2004 U.S. Dist. LEXIS 24682, at *6 (E.D. Pa. Dec. 7, 2004). Where, as here, a plan governed

under ERISA provides the administrator with discretionary authority to determine benefit

eligibility, we were required to review the determination under an arbitrary and capricious

standard. See, e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-12 (1989). 

Under the arbitrary and capricious standard, we could not reverse the administrator’s

decision denying disability benefits, unless that decision was “without reason, unsupported by

substantial evidence[,] or erroneous as a matter of law.” Abnathya v. Hoffmann-LaRoche, Inc.,

2 F.3d 40, 45 (3d Cir. 1993). The scope of this review is narrow, and we were not free to

substitute our own judgment for that of Hartford’s plan administrator in determining eligibility

Section 502(a)(1) provides that “a civil action may be brought . . . to recover benefits 7

due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to

clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).

Section 502(a)(2) provides that “a civil action may be brought . . . by the Secretary, or 8

by a participant, beneficiary or fiduciary” for appropriate relief when a fiduciary violates his

duties under ERISA. 29 U.S.C. §§ 1132(a)(2); 1109. 

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for plan benefits. Mitchell v. Eastman Kodak Co., 113 F.3d 433, 439 (3d Cir. 1997).

However, Courts presume a conflict of interest because the insurance company is

presumed to have “an active incentive to deny close claims in order to keep costs down and keep

themselves competitive so that companies will choose to use them as their insurers.” Pinto v.

Reliance Standard Life Ins. Co., 214 F.3d 377, 388 (3d Cir. 2000). Therefore, a “heightened

arbitrary and capricious standard of review” was applicable where, as here, an insurance

company determines the eligibility for benefits and also pays benefits out of its own funds. Id. 

 Under this heightened standard, Pinto held that we were to apply a sliding scale that takes

into consideration the degree of conflict on the part of the administrator- the greater the evidence

of conflict, the greater the scrutiny. Id. at 389. Utilizing this sliding scale, we were to evaluate

the presence and severity of several factors related to the conflict: (1) sophistication of the

parties; (2) information accessible to the parties; (3) exact financial arrangement between the

insurer and the company; and (4) the status of the administrator, as the company’s financial or

structural deterioration might negatively impact the presumed desire to maintain employee

satisfaction. Pinto, 214 F.3d at 392. Procedural anomalies, biases, or unfairness in determining

the level of scrutiny applied to an administrator’s decision were also to be evaluated. Id.

We considered the four factors as listed above and determined that Hartford had a

slightly heightened conflict of interest in determining Post’s eligibility for LTD benefits. 

Specifically, we determined that only the third factor was subject to arbitrary and capricious

standard- the exact financial arrangement between the insurer and the company. The Plan is

funded by Hartford on a case-by-case basis instead of a fixed price basis that has been actuarially

determined. It is possible, then, for Hartford to have some incentive to deny coverage on

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individual requests, assuming that it has no interest in “avoiding the loss of morale and higher

wage demands that could result from denials of benefits.” Nazay v. Miller, 949 F.2d 1323, 1335

(3d Cir. 1991). Thus, we found that the third factor mandated only a slightly heightened

standard. Post v. Hartford Ins. Co., No. 04-3230, 2005 WL 2455818, at *11 (E.D. Pa. Oct. 5,

2005).

We then went on to consider evidence of procedural anomalies, bias, or unfairness. 

Pinto, 214 F.3d at 394. Where courts have found evidence of procedural anomalies, bias, or

unfairness, significantly greater scrutiny has been applied to the administrator’s decision. Id. 

We proceeded to look at four procedural anomalies and determined that, in the 9

aggregate, they amounted to “minor procedural irregularities indicating possible bias against

Post.” Id. We, therefore, concluded that we would “employ a moderate level of scrutiny” when

analyzing the administrator’s decision. Post v. Hartford Ins. Co., 2005 WL 2455818, at *13. 

Applying this “moderately heightened arbitrary and capricious standard,” we determined

that Hartford’s final decision to deny Post’s LTD benefits was supported by substantial evidence,

and therefore, we concluded that Hartford’s denial of Post’s disability benefits was not arbitrary

and capricious. Id. at 15.

Post appealed this decision to the Third Circuit, on November 2, 2005, and the Court

The four procedural anomalies were: 9

1. Hartford’s attempt to offset Post’s LTD benefits with Social Security

Disability benefits;

2. Post’s refusal to undergo an FCE;

3. The opinion of non-treating physician, Dr. Malievskaia; and

4. Hartford’s surveillance of Post.

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issued its decision on April 15, 2008, affirming our decision in part, vacating it in part, and 10

remanding this matter back to this Court for further proceedings consistent with its decision. 

B. The Third Circuit’s Decision

On appeal, the Court in Post v. Hartford Ins. Co., 501 F.3d 154 (3d Cir. 2007) first noted

the Supreme Court’s holding in Firestone Tire & Rubber Co. v. Brunch, supra. at 113. Firestone

held “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a

conflict of interest, that conflict must be weighed as a ‘factor’ in determining whether there is an

abuse of discretion.” Post, 501 F.3d at 161. 

The Court wrote that in the post-Firestone era, most courts of appeal have adopted a

“sliding scale” standard of review. “This approach grants the administrator deference in

accordance with the level of conflict. Thus, if the level of conflict is slight, most of the

administrator’s deference remains intact, and the court applies something similar to traditional

arbitrary and capricious review; conversely, if the level of conflict is high, then most of its

discretion is stripped away.” Id. As a result of Firestone, this Circuit adopted the sliding scale

approach in Pinto, supra., holding that we find that the sliding scale approach was most faithful

to Firestone’s command that the level of conflict be considered as a “factor” in shaping arbitrary

and capricious review. Id. at 392. 

The Court further stated that:

 [T]he premise of the sliding scale approach is that courts should examine benefit

denials on their facts to determine whether the administrator abused its discretion. 

To apply this approach, courts first consider the evidence that the administrator

acted from an improper motive and heightened their level of scrutiny

The Court affirmed our decision granting summary judgment on the §1132(a)(2) claim 10

because principles of res judicata barred that claim. 

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appropriately. Second, they review the merits of the decision and evidence of

impropriety together to determine whether the administrator properly exercised

the discretion accorded it. If so, its decision stands; if not, the court steps into the

shoes of the administrator and rules on the merits itself.

 Post, 501 F.3d at 161. The Court also noted that “[D]etermining how to apply heightened

arbitrary and capricious review requires considering both structural and procedural factors.” 

“The structural inquiry focuses on the financial incentives created by the way the plan is

organized, whereas the procedural inquiry focuses on how the administrator treated the particular

claimant.” Id. at 392-393. 

Furthermore, Pinto held that “structure alone can require heightened review.” Id. at 390. 

As Post stated that the administrator in the present case, Hartford, was an outside insurer that

makes claims’ decisions itself, and that this is the very sort of conflict that Pinto declared to be

substantial and worthy of raising the standard of review. Thus, the Court determined that this

was sufficient to require at least moderately heightened review. Post v. Hartford Ins. Co., 501

F.3d at 164. 

Specifically, the Court held that where courts have found evidence of procedural

anomalies, bias, or unfairness, significantly greater scrutiny has been applied to the

administrator’s decision. Id. Examples of procedural anomalies include an administrator who: 

(a) relies on the opinions of non-treating physicians over those of treating

physicians without explanation, Kosiba v. Merck & Co., 384 F.3d 58, 67-68 (3d

Cir. 2004); (b) fails to follow the plan’s notification provisions and conducts selfserving paper reviews of medical files, Lemaire v. Hartford Life and Accident Ins.

Co., 69 Fed. Appx. 88 (3d Cir. 2003); (c) bases its negative decision on

inadequate information and incomplete investigations, Friess v. Reliance Standard

Life Ins. Co., 122 F.Supp. 2d 566, 574-75 (E.D. Pa. 2000); (d) reverses an earlier

decision allowing benefits without any new evidence that supports the reversal,

Pinto, 214 F.3d at 394; (e) ignores the recommendations of its own claim

managers that benefits should be awarded. Id.

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On the issue of procedural irregularities, Post noted that this Court’s finding that

“procedural anomalies appear to form a pattern of Hartford being overly aggressive in its

attempts to reduce Post’s benefits and then attempting to rectify the situation when it realized its

error.” We named four aspects of the process that appeared irregular, yet we concluded that they

were too minor to further heighten our scrutiny. Post v. Hartford Ins.Co., 2005 WL 2455818 at

*12-13. The Circuit, in Post, addressed these four and also considered two other irregularities. 

The Court first addressed Hartford’s attempt to use Post’s Social Security benefits to

offset her disability benefits, despite the plan not allowing for such an offset. The Court noted

that after Post’s attorney protested, Hartford relented, but it was the administrators’

responsibility to know the contents of the plan. The Court concluded that because Hartford is a

large, sophisticated insurance company, and the Plan its own design, they were less willing to

draw benign inferences from Hartford’s supposed confusion about the contents of its own

contract. Post, 501 F.3d at 166.

Second, the court addressed the issue of Post’s alleged refusal to undergo a FCE. The

Court stated that Post had not refused the FCE, but that Hartford was quick to conclude that she

had, despite never making a written request for her to undergo a FCE. In addition, during the

appeals process, Hartford relented and agreed to reconsider her appeal if she would agree to

undergo an IME. The Court stated that “[O]f concern is that Hartford did not allow Post to see

Dr. Lynch’s report before making its final decision to terminate. Thus, she had no opportunity to

allow her treating physicians to comment on it. Id.

Third, the Court noted that Hartford’s decision to terminate relied heavily on Dr.

Malievskaia’s report, which was not based on a physical examination. The Court noted that

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while ERISA does not require that plan administrators give the opinions of treating physicians

special weight, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 823-24 (2003), courts

must still consider the circumstances that surround an administrator ordering a paper review. 

“On one hand, nothing in the record specifically suggests that Hartford ordered this review in

bad faith, as, we assume, periodic reviews are typical in the industry. On the other hand, we note

that at the time of the review the overwhelming weight of evidence in Post’s record argued in her

favor.” Id. 

Fourth, the Court wrote that Hartford continued to investigate her claim despite using

surveillance which revealed that she did not leave her home. The Court pointed out that this was

“consistent with, and corroborative of her claim of disability. Yet, Hartford was undeterred in

continuing to pursue evidence that Post was not disabled. Indeed, the very fact that its

employees characterized the results of the surveillance as ‘unsuccessful’ suggests that its motive

was to find evidence to deny Post’s claim.” Id. at 167.

The Court also found that Hartford’s pursuit of Post’s tax returns “in the face of

ambiguous Plan language” which required Post to produce such and threatening forfeiture of her

benefits is “accurately characterized as an aggressive tactic.” Id. 

The Court concluded that “[I]n this case, the sheer number of irregularities coupled with

Hartford’s aggressive posture raise concerns, and so the standard of review must be heightened. 

This procedural posture suggests we move toward the high end of the sliding scale.” Id. at 168. 

C. Subsequent Supreme Court Decision

Just weeks after the Post decision was handed down, the United States Supreme Court

revisited the issue of conflicts of interest in ERISA actions. See Metropolitan Life Co. v. Glenn,

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128 S.Ct. 2343 (2008). In this case, the Court stated that its decision was an “elucidation”of the

Firestone standard. Id. at 2353. (emphasis added). The Court first noted that it held in

Firestone that a conflict should “be weighed as a ‘factor’ in determining whether there is an

abuse of discretion.” 489 U.S. at 115. The Court explained that “[W]e do not believe that

Firestone’s statement implies a change in the standard of review, say, from deferential to de novo

review.” Metropolitan, 128 S. Ct. at 2350. “Nor, would we overturn Firestone by adopting a

rule that in practice could bring about near universal review by judges de novo.” Id. The Court

added that “[H]ad Congress intended such a system of review, we believe it would not have left

to the courts the development of review standards but would have said more on the subject.” Id. 

Neither do we believe it necessary or desirable for courts to create special burdenof-proof rules, or other special procedural or evidentiary rules, focused narrowly

upon the evaluator/payor conflict. In principle, as we have just said, conflicts are

but one factor among many that a reviewing judge must take into account. 

Benefits decisions arise in too many contexts, concern too many circumstances,

and can relate in too many different ways to conflicts- which themselves vary in

kind and in degree of seriousness- for us to come up with a one-size-fits-all

procedural system that is likely to promote fair and accurate review. Indeed,

special procedural rules would create further complexity, adding time and

expense to a process that may already be too costly for many of those who seek

redress.

Id. at 2351.

The Court further explained that “[W]e believe that Firestone means what the word

‘factor’ implies, namely, that when judges review the lawfulness of benefit denials, they will

often take account of several different considerations of which a conflict of interest is one.” Id.

at 2351. The Court added that “[I]n such instances, any one factor will act as a tiebreaker when

the other factors are closely balanced, the degree of closeness necessary depending upon the tie

breaking factor’s inherent or case-specific importance.” Id. at 2351. The Court went on to state

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that a conflict of interest should prove more important (perhaps of great importance) where

circumstances suggest a higher likelihood that it affected the benefits decision, including, but not

limited to, cases where an insurance company administrator has a history of biased claims

administration. “It should prove less important (perhaps to the vanishing point) where the

administrator has taken active steps to reduce potential bias and to promote accuracy.” Id. 

III. DISCUSSION

A. Standard of Review

The first question we must address is whether the Metropolitan decision overturned

and/or changed the “sliding scale” standard of review for a conflict of interest in ERISA actions. 

Our Circuit has not yet ruled on the effect of Metropolitan on the sliding scale standard, and our

research indicates that only one district court in this Circuit has confronted a conflict of interest

case in an ERISA action after the Metropolitan decision. In Dolfi v. Disability Reinsurance

Mgmt. Services, No. 06-1262, 2008 WL 3925847, at *18, n.29 (M.D. Pa. Aug. 21, 2008), the

Court determined that whether the sliding scale approach survives Metropolitan need not be

resolved by this court since the plaintiff in that action had not shown a conflict of interest. Id. 

We are also of the opinion that we do not have to resolve the issue of whether the sliding scale

standard survives Metropolitan, since we find that Hartford’s decision to terminate Post’s

benefits was arbitrary and capricious under the directives of both Post and Metropolitan.11

Even though we are not deciding the issue of whether the “sliding scale” standard 11

survives Metropolitan in the instant case, we do believe that it does. As noted above,

Metropolitan, itself, stated that its decision was an “elucidation”of the Firestone standard, that it

was not overturning the Firestone decision, and held that a conflict should be weighed as a

“factor” in determining whether there is an abuse of discretion. Metropolitan, 128 S.Ct. at 2353. 

In fact, since the Firestone decision, this Circuit has considered a conflict of interest as a “factor”

in the arbitrary and capricious review, but implemented the sliding scale approach. In Pinto, our

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We will, thus, follow Metropolitan and consider the conflict of interest here as one factor 

among several other factors in analyzing Hartford’s decision to terminate Post’s benefits. Upon

consideration of the direction of the Circuit in Post and the holdings in Metropolitan, we find

that the conflict of interest in this case, together with the other factors discussed below, support a

decision that Hartford’s termination of Post’s benefits was arbitrary and capricious. 

B. Factors Considered Under the Arbitrary and Capricious Standard of Review

1. Lack of New Evidence

As noted earlier, Pinto stated that where an administrator reverses an earlier decision

allowing benefits without any new evidence supporting reversal, a procedural anomaly exists

requiring significantly greater scrutiny to the administrator’s decision. Pinto,

214 F.3d at 394. Here, we are of the opinion that Hartford reversed its decision to grant benefits

without any new evidence to support its decision. Under the sliding scale, this would have

mandated significantly greater scrutiny of Hartford’s decision. We, however, consider it as just

another factor here, but one that significantly tips the scales in favor of finding Hartford’s

decision arbitrary and capricious.

In considering this factor, we must first look at the evidence upon which Hartford

originally decided to grant benefits on March 24, 1997. On October 20, 1993, Post had major

dental surgery that kept her out of work for five weeks. (HLI01092). She resumed working a

few days before she was involved in an automobile accident. (HLI00944). On November 27,

1993, Post was a passenger in a car that was rear-ended and pushed into traffic where two more

Circuit held that the sliding scale approach was the most faithful to Firestone’s command that the

level of conflict be considered as a factor in shaping arbitrary and capricious review. 214 F.3d at

392. 

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motor vehicles collided with it. (HLI00764). On May, 10, 1994, Carol N. Cote, Director of

Physical Therapy at the North Jersey Health & Pain Relief Center, summarized her findings as:

consistent with traumatic cervical thoracic and lumbar strain with secondary

dysfunction involving the entire upper and mid cervical as well as the thoracic

and lumbar spine. She also has a posture syndrome which is perpetuated by the

dysfunction and muscle strain. Her symptoms are more acute on the left, which is

also reflected on the left tempromandibular joint. She is secondarily relatively

hypomobile of the right TMJ compared to the left. She has also had significant

anterior cervical soft tissue involvement. (HLI00454-457). 

Post returned to work again in January 1995. On March 15, 1995, Gregory Mulford,

M.D. stated that Post “will continue with her attempts at working full-time, but if her pain

persists she may be forced to look at long-term disability as an option.” (HLI00986). Post

attempted to work as a pharmacist, but stopped working on May 24, 1995, due to pain caused

from intractable cervical pain and lumbar radiculopathy. (HLI01299). 

On June 9, 1995, Post visited her neurologist and treating physician, Carolyn Britton,

M.D., at New York Columbia Presbyterian Hospital. Dr. Britton noted that for two years Post

had been in physical therapy for treatment of severe, chronic neck pain, and has been unable to

perform her duties as a dentist or pharmacist because of her inability to lift or engage in 12

repetitive activity. Dr. Britton diagnosed that Post was suffering from a “whiplash” injury

“resulting in chronic, persistent and severe cervical pain.” (HLI00946). Dr. Britton opined that

Post was “incapacitated by pain,” and noted that her brief attempts to return to work were

On June 27, 1996, Overlook employee, Thomas Vogt, completed a Physical Demands 12

Analysis Form indicating the demands involved for Post as a pharmacist. On that form, Mr.

Vogt indicated that a pharmacist needs to sit for two hours, and stand and walk for three hours

during an eight hour work day. According to Mr. Vogt, a pharmacist also needs to lift between

11 and 50 pounds occasionally, but never more than that. Mr. Vogt indicated that a pharmacist

needs to climb, balance and feel on occasion, as well as stoop frequently and reach and handle

constantly. Finally, Mr. Vogt classified the job as “medium work.” (HLI00998-99).

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unsuccessful because of ongoing pain. (HLI00945). 

On November 7, 1995, Dr. Mulford examined Post again and determined that Post “is not

yet able to return to any activities that require prolonged sitting or lifting.” (HLI00982). Dr.

Mulford also explained that, “given persistence of her symptoms and her limitations, I do not

believe she is presently able to successfully return to the previous job.” (HLI00982). 

On March 19, 1996, Dr. Mulford noted that Post was doing relatively well with her home

exercises and pain self-management, but also noted that “she continues to have pain primarily in

the upper cervical spine, and occasionally into the left upper scapular region” and that “lifting

and straining continue to aggravate her symptoms most.” (HLI00981). Dr. Mulford further

stated that Post’s “most significant abnormality on her examination continues to be her cervical

range of motion which shows markedly restricted flexion.” (HLI00981). Finally, Dr. Mulford

offered that “I see no significant change in her examination, compared to previous assessments.” 

(HLI00982).

On April 26, 1996, Post completed a Total Disability Claim indicating that she was

totally disabled on the basis that she was suffering from cervical sprain/strain, severe chronic

myofascial pain syndrome, cervical facet joint arthropathy and occipital and suboccipital

neuralgia as a result of the car accident. (HLI01012-23). Just prior to this time on March 17,

1996, Dr. Britton indicated in an “Attending Physician’s Statement of Disability” form

completed at the request of Hartford, that Post was suffering from cervical sprain and intractable

cervical pain and spasm, which resulted in the subjective symptoms of pain in her neck and

stiffness and objective findings of “pain cervical and trapezius spasm; rom cervical spine.” Dr.

Britton opined that Post became unable to work as of May 25, 1995 and was totally disabled not

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only from her previous job, but all jobs. She also noted that her progress was “unchanged.” 

(HLI01017). 

Also at the request of Hartford, Joel Harris, D.D.S., completed a Physical Capacities

Evaluation Form on July 22, 1996. Dr. Harris reported that Post had severe pain in her head,

neck and lower jaw. He noted that her severe back pain limits her mobility and that she cannot

sit in a chair for treatment purposes without pain. (HLI00990). Dr. Harris recommended that

Post could stand, sit, walk and drive for one hour each during an eight-hour work day, but she

could never lift any amount of weight, climb, balance, stoop, kneel, crawl, crouch, reach, finger,

handle, or feel. He also believed that Post had reached her maximum medical improvement. 

Despite opining that Post was only able to stand, walk, and sit for one hour each during an eighthour workday and could never even lift up to ten pounds, Dr. Harris checked off on the

evaluation form that Post was capable of handling sedentary work. Sedentary work was defined

on this form as requiring the ability to lift up to ten pounds and being about to do a “certain

amount of walking and standing in carrying out job duties.” (HLI00989-990). 

On August 24, 1996, Dr. Britton filled out a Physical Capacities Evaluation form on

which she reported that Post could sit, stand, walk, and drive for one hour each in an eight-hour

day, with rest. She indicated further that Post could lift up to ten pounds occasionally, but never

more. Dr. Britton concluded that Post was completely disabled. (HLI00956-957).

On September 16, 1996, Dr. Britton reported that Post had evaluated in her office for

severe chronic post-traumatic cervical pain. Her examination was “significant for moderate

spasm of cervical paraspinals and both trapezil.” Dr. Britton noted that Post’s activities were

very limited. Post requires “frequent rest periods and is unable to tolerate any sustained work

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activity. She is completely disabled for her usual and any other work.” (HLI00952).

Based on this medical evidence, Hartford granted LTD benefits, but as already noted

above, ultimately terminated Post’s benefits in October 2003 based on an IME conducted by Dr.

Christopher Lynch. (HLI01068). Post was given this IME on August 14, 2003. Dr. Lynch

reported that Post complained of severe TMJ area pain, upper and lower back, shoulder, neck,

trapezius, foot, leg, arm and hand pain, and overall body pain 24 hours-a-day. Medications

helped her pain somewhat, but the pain persisted. Trigger point injections helped, but only

temporarily. Dr. Lynch noted that Post’s self-reports of pain were contradicted by her physical

appearance; she appeared to be in no distress although claiming to be in total body pain. 

(HLI01083-84). 

Upon examining Post, Dr. Lynch found that her upper extremities revealed no

deformities, there was no focal motor, reflex or sensory loss, and she had a normal pain free

range of motion in all her upper extremity joints, including her shoulders. Post did not have

tenderness over her forearm or upper arm. (HLI01084).

Examining Post’s head, neck and back revealed no deformities, and her range of motion

in the cervical spine was 15 to 20 degrees of left and right lateral rotation with normal flexion

and extension. Her range of motion in the low back was 60+ degrees of flexion with 5-10

degrees of extension. Dr. Lynch noted: 

Palpation over the cervical and thoracic regions reveals no definite tenderness and

no trigger points were palpated. Palpation over the lumbosacral spine reveals no

tenderness. She was somewhat tender over the greater trochanters bilaterally. 13

No definite trigger points were noted. Straight leg raising is negative bilaterally. 

Motor, reflex, and sensory exams were normal in the lower extremities. She has

Trochanter- either of the two processes below the neck of the femur. Dorland’s at 1748. 13

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normal pain free range of motion in all lower extremity joints. Gait is normal.

(HLI01084-85).

Dr. Lynch cited Post’s first MRI study in December 1993, which was normal. 

Thereafter, her treating physicians indicated that subsequent MRI studies showed degenerative

changes in the cervical and lumbar spine with some disc protrusions. (HLI01085). Dr. Lynch

recorded that Post received numerous medications, including Oxycontin and Oxy-IR, but she

still complained of chronic total body pain. She has also had poor responses to multiple

medications, and “despite the increase in Oxycontin and the addition of Oxy-IR, she still has

chronic total body pain, which has really not improved despite the passage of time and increase

in medications.” (HLI01085). Dr. Lynch did not find objective evidence to support total

disability, but instead found that Post’s apparent disability was based totally upon her subjective

complaints. Dr. Lynch found that the only diagnosis of Post that her treating physicians agreed

upon was that of myofascial pain syndrome, also known as fibromyalgia. Dr. Lynch explained

that fibromyalgia is defined as the “presence of chronic widespread muscular pain with

associated findings of eleven out of the usually recognized eighteen trigger points.” (HLI0186). 

Post, however, did not have any trigger points in her examination, and by reviewing the records,

Dr. Lynch found that she probably had a few trigger points, but no where near the required

eleven. (HLI01085-87). 

According to Dr. Lynch, the objective medical evidence was not consistent with Post’s

reported level of impairment. (HLI01087). Dr. Lynch concluded that she could perform

sedentary or light work as usually defined, including lifting up to 20 pounds maximum with

frequent lifting or carrying of items up to 10 pounds. In his opinion, Post had the ability to

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change posture at “fairly frequent intervals.” Dr. Lynch concluded that Post has a chronic pain

disorder with major psychological components. He stated that:

[I]t is my opinion that the multiple treatment over the years which have been

targeted at physical complaints and using various analgesics, anti-inflammatories,

physical therapy and other treatments aimed for physical complaints or problems

will not simply work because I do not believe the major problem here is a truly

physical problem of myofascial pain or musculoskeletal pain. She has had more

than adequate time and treatment for physical myofascial and musculoskeletal

pain and yet her pain is really no better. I feel, at this time, further increases in

further narcotics or changes in narcotics, are not likely to be of any benefit and

thus, feel they might in fact worsen the cycle of dependency on narcotic

medication. I feel the majority of this patient’s pain is psychogenic in nature 14

and needs to be addressed by appropriate psychiatric and/or psychological means. 

It appears that ten years of physical complaints and ten years of physical

treatments have not changed this situation much at all. (HLI01087-88). 

In rendering its decision to terminate Post’s benefits, Hartford explained that, based on a

review of Dr. Lynch’s findings, Post no longer met the definition of “Totally Disabled,” and

wrote that “it does not appear that Ms. Post has elected to follow the recommendations of her

treating physicians to seek psychological/psychiatric treatment. As a result, there is no way to

ascertain Ms. Post’s behavioral health, particularly at the time her request for continued LTD

Income benefits were terminated in January 2002.” Given the restrictions and limitations

imposed upon Post by Dr. Lynch, Hartford determined that Post:

would not be prevented by disability from doing any occupation or work for

which she is qualified by training, education or experience. More specifically,

these restrictions would not prevent Ms. Post from performing the essential duties

of either a pharmacist or a dentist, occupations [she] engaged in prior to filing her

disability claim.(HLI01070).

Therefore, Hartford concluded that the medical evidence did not support a condition of

Psychogenic- produced or caused by psychic or mental factors rather than organic 14

factors. Dorland’s at 1383.

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total disability as defined by the Plan.

However, a thorough review of the large volume of medical evidence from the date of

Hartford’s initial determination that she was disabled in March 1997 through the date of its final

termination decision in October 2003, indicates that Post’s condition had not changed. In fact,

the medical record subsequent to March 1997 clearly corroborates and supports the medical

evidence prior to this date, as summarized above. It is, of course, significant that this was the

same evidence upon which Hartford relied in finding Post totally disabled. The record,

therefore, reflects that there was no new evidence on which Hartford could justify terminating

Post’s benefits. During the years following March 1997, the record shows that Post continued to

see her treating neurologist, Dr. Britton, on a regular basis, was continually treated with narcotic

pain medication with minimal results, and sought out treatment with additional specialists for

severe pain. These physicians consistently reported that plaintiff’s pain was real and disabled

her from all types of work, and that her condition remained unchanged since she was first unable

to work in May of 1995 through Dr. Lynch’s IME in August 2003.

Soon after Hartford made its determination that Post was entitled to benefits, Dr. Britton

completed a Physical Capacities Evaluation form on April 25, 1997 at Hartford’s request. In

such, she found that Post could sit for two hours, stand and walk for one hour, occasionally lift

and carry up to ten pounds, occasionally climb, balance, stoop, kneel and reach, but never crouch

or crawl. Dr. Britton opined that Post was “disabled, completely.” (HLI00886-87). On

September 26, 1997, Dr. Britton completed another Physical Capacities Evaluation form,

wherein she stated that Post could not perform any degree of work (HLI00866).

Almost two years later on June 3, 1999, Dr. Britton filled out yet another Physical

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Capacity Evaluation form at the request of Hartford and actually opined that Post had less

capacity to sit, stand, and walk during an eight-hour workday as she had previously reported. 

Dr. Britton indicated that Post was only able to sit for thirty minutes, and stand and walk for

twenty minutes during a workday. Dr. Britton again concluded that Post had reached “maximum

medical improvement,” and that she was incapable of performing any type of work. (HLI00817-

18). On July 25, 2000, Dr. Britton responded to Hartford’s request to complete an “Attending

Physician’s Statement of Continued Disability.” In such, Dr. Britton noted that she had treated

Post on this date for pain management and would see her again in four to six weeks. Dr. Britton

opined that Post suffered from intractable cervical spasm and pain, cervical sprain, and neck and

lower back pain, and determined that Post has “no improvement” in her ability to stand, walk,

and sit, and could only lift less than five pounds. She further concluded that Post’s progress was

“unchanged.” (HLI01313-14). 

 We recognize that “[P]lan administrators are not obliged to accord special deference to

the opinions of treating physicians because there is also a potential conflict of interest on the part

of a treating physician who, in a close case, may favor a finding for the patient.” Black & Decker

Disability Plan v. Nord, supra. at 833. However, “plan administrators, of course, may not

arbitrarily refuse to credit a claimant’s reliable evidence including the opinions of a treating

physician.” Id. at 834.

Here, Hartford based its decision to terminate benefits solely on the examination and

opinion of Dr. Lynch. However, Hartford failed to give any credit to the reports and opinions of

not only Post’s treating physician, Dr. Britton, but several other physicians who treated Post and

gave opinions concerning her ability to work. In his report, Dr. Lynch makes no mention of Dr.

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Britton, or any other examining and/or treating physicians, such as Dr. Ellen Field-Munves and

Dr. Russell Rentler. Instead, he simply wrote that the only diagnosis that was agreed upon by

her treating doctors was myofacial pain syndrome. In addition, Dr. Lynch did not discuss or

attempt to discredit any of the physical limitations that several of Post’s doctors had found, and

offered no opinion, himself, as to her physical capabilities, other than to conclude that her pain

was basically imaginary. (HLI01083-88).

On May 1, 1997, Post was examined by Ellen Field-Munves, M.D., a rheumatologist,

who reported that Post had chronic pain syndrome and fibromyalgia that limited her range of

motion of the neck. Dr. Field-Munves concluded that “[a]t present this [patient] is totally

disabled from any occupation.” (HLI00746-48). Also, during this time, Post was being treated

by Dr. Rentler. On July 12, 1999, Dr. Rentler reported that he was seeing plaintiff for her

ongoing musculoskeletal problems. He stated that Post has continued pain that goes down into

her legs, and that she is “very weak” and fatigued. He diagnosed her with “chronic

musculoskeletal condition secondary to TMJ syndrome secondary to trauma.” He suggested

continued physical therapy, stating that it was the only thing that was giving her relief. 

(HLI01255). Dr. Rentler reiterated on August 9, 1999, that plaintiff had a lot of fatigue and

continued pain (HLI01255). He saw Post again on November 22, 1999, and noted that Post was

“clearly” in pain, despite the reports of the prosthodontist that she saw for pain in Boston who

told her that her EMG was normal, and that she should not be in severe pain. He continued her

on the medications, Flexeril and Oxycontin, and recommended that she see a counselor to help

her deal with her chronic pain syndrome. (HLI01254).

Post was also treated from May 23, 2000 through September 17, 2002 by a pain

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specialist, Andrew G. Kaufman, M.D., of Summit Pain Management. On May 23, 2000, Dr.

Kaufman noted that Post sought out his help after she had seen him at a speaking engagement in

Princeton, New Jersey. Dr. Kaufman initially assessed Post’s condition as “diffuse myofascial

pain, status post MBA with cervical strain, and occasional cervicogenic headache.” Contrary to

the findings of Dr. Lynch, concerning her lack of trigger points for fibromyalgia, Dr. Kaufman

found several trigger points in the C-5, C-6 level and the infraspinatous region on her left side. 

At Dr. Kaufman’s direction, Post was given four injections into these regions, witch gave her

some immediate pain relief. (HLI01223-24). Post saw Dr. Kaufman next on July 7, 2000. He

reported “improving myofacial pain syndrome,” but continued her on the narcotic drugs,

Oxycontin and Oxycodone. (HLI01221). On October 2, 2000, Dr. Kaufmann wrote that Post

was suffering with migraine headaches and that she had recurrent myofacial pain. (HLI01220). 

Dr. Kaufman reported on March 16, 2001 that Post reported more of a total body ache

than the usual trigger injections and that she continued taking Oxycontin and Oxycodone. 

(HLI01219). Post next saw Dr. Kaufman several months later on November 12, 2001, and he

indicated that Post was “still profusely achy all over her head, neck, shoulders, mid back and low

back.” He also noted that Post expressed great dissatisfaction with the fact that she is no longer

able to “function at a higher level” and to “even take care of her family much less attempt to

work.” Post was again given some trigger point injections to diminish her pain. (HLI01217-18).

Dr. Kaufman next saw Post on May 31, 2002, and wrote that plaintiff was continued on

Oxycontin and Imitrx for migraines, and the buttock area was the major area for her myofacial

pain. Post received an injection for pain in that area. Dr. Kaufman’s assessment was again

myofacial pain, fibromyalgia, and migraine headache. (HLI01213). Post last saw Dr. Kaufman

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on September 12, 2002 when he reported that Post complained of increasing pain in the neck as

well as intermittently down the arms, and generalized pain in the in the back and buttock. He

added that there were two significant trigger regions in the gluteal muscle which reproduced

significant pain in the buttock. Dr. Kaufman noted that Post asked for an increase in her

narcotics, but he did not agree to this until he did further testing. He also recommended that she

see a headache specialist. (HLI01211- 12). 

On October 20, 2002, Post was examined by Russell K. Portenoy, M.D., Chairman of the

Department of Pain Medicine and Palliative Care of Beth Israel Medical Center in New York. 

He noted that plaintiff had been through numerous prior therapies to help her pain. She had

trials of the drugs, Flexeril, Vioxx, Lorcet, Elavil, Clonidine, Pamelor, Zoloft, Neurontin, and

Zanaflex, and that none of these medications provided benefit at doses that could be tolerated. 

Post also had physical therapy for four years which worsened the pain, and had chiropractic

manipulation, acupuncture, yoga training, biofeedback training, trials of TENS, and injections. 

None of which, however, helped the pain. Dr. Portenoy also stated that Post was being treated

with an opioid regimen, specifically, Oxycontin, which offered only moderate benefit. Dr.

Portenoy summarized that Post “has a long standing chronic pain syndrome compromising a

chronic posttraumatic vascular headache, a posttraumatic idiopathic pain involving most of the

body and abdominal pain also of unclear cause but consistent with irritable bowel syndrome. 

The pain is associated with a very high level of disability.” (HLI01197-99). 

It is significant to note here that Dr. Lynch, himself, recognized that Post’s condition

over the last ten years had not changed at all. He acknowledged that Post had been treated with

various physical treatments, including the continued use of narcotic pain medication. He stated

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that Post has had poor responses to multiple medications, and “despite the increase in Oxycontin

and the addition of Oxy-IR, she still has chronic total body pain, which really has not improved

despite the passage of time and increase in medications.” (HLI01085). Moreover, it is

significant that despite the fact that Post was treated over the previous ten years by various

physicians, including specialists in rheumatology and pain management, that Dr. Lynch after his

sole examination of Post, determined that Post’s pain was psychogenic in nature. There is

simply no evidence in this voluminous medical record to support such a conclusion. In fact, the

record reflects that between 1993 and 2003, Post visited 14 doctors, and only Dr. Lynch

concluded that Post’s pain syndrome was psychogenic. For these reasons, this factor itself is

sufficient to find that Hartford’s decision to terminate benefits was arbitrary and capricious. We

will, however, discuss two additional factors which support this determination.

2. Post’s Award of Social Security Disability Benefits

We next find that Post’s award of Social Security benefits, and Hartford’s failure to

address such, is another factor that indicates that Hartford’s decision to terminate benefits was

arbitrary and capricious. As earlier noted, on September 28, 1998, the Social Security

Administration notified Post that she had been awarded Social Security disability benefits. 

(HLI00540-542). While our Circuit has not ruled on the relevance of Social Security decisions

in determining the appropriate standard of review, other courts of appeals and some district

courts have held that a disagreement with the Social Security Administration is a relevant,

though not dispositive factor. See Glenn v. MetLife Inc., 461 F.3d 660, 669 (6th Cir. 2006). 

(“[A]n Erisa plan administrator’s failure to address the Social Security Administration’s finding

that a claimant was “totally disabled” is yet another factor that can render the denial of further

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long-term disability benefits arbitrary and capricious.” Lopes v. Metro. Life Ins. Co., 332 F.3d

1, 6 n. 9 (1st Cir. 2003); Whatley v. CNA Ins. Co., 189 F.3d 1310, 1314 n.8 (11th Cir. 1999) (per

curiam); Edgerton v. CNA Ins. Co., 215 F. Supp. 2d 541, 549 (E.D. Pa. 2002); Dorsey v.

Provident Life & Accident Ins. Co., supra.

In addition, Post held that a “disagreement is relevant though not dispositive, particularly

(as here) when the administrator rejects the very diagnoses on which the Social Security benefits

determination is based.” Post, 501 F.3d at 167. The disagreement between Dr. Lynch and the

Social Security Administration is certainly relevant here since Dr. Lynch was of the opinion that

Post was never disabled, but rather her disabling pain was psychological in nature. Dr. Lynch

also failed in his report to even mention that Social Security found her totally disabled. 

Furthermore, Hartford never addressed the fact that Post was awarded Social Security benefits

other than to attempt to have those benefits offset her LTD benefits. 

3. Hartford’s Aggressive Tactics

Lastly, we find that Hartford’s aggressive tactics toward Post after its initial grant of

benefits are yet another factor, along with its conflict of interest, which supports our conclusion

that Hartford’s termination of benefits was arbitrary and capricious. We discuss several of these

tactics below.

 First, on October 20, 1998, despite the fact that the Plan did not allow for such

information, Hartford requested the Notice of Award from the Social Security Administration so

that it could “calculate the correct long-term disability benefit.” (HLI00847). Post’s attorney

responded that Hartford was not entitled to receive a portion of Post’s Social Security Disability

benefits pursuant to the language of the LTD benefit plan. (HLI00719). Eventually, Hartford

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stopped requesting information regarding Post’s Social Security award of disability benefits. 

Second, Hartford conducted a surveillance of Post in early 2000 which proved to be

fruitless. On February 28, 2000, Sabrina A. Misiaszek sent an internal memorandum to Hartford

employee Nicholas A. Courto, stating that surveillance was unsuccessful as the “claimant was

not observed leaving her home.” (HLI00793). However, despite this finding, which clearly

supported Post’s claim of continued disability, Hartford continued with aggressive actions aimed

toward terminating and/or reducing her LTD benefits. 

Third, on February 29, 2000, Hartford requested that Post send her tax returns for the tax

years 1995-1999, a completed Authorization form and Claimant Questionnaire. (HLI00787). 

On March 13, 2000, Post responded with a completed and signed Claimant Questionnaire and

Authorization to Obtain and Release Information. However, as advised by her attorney, Post

refused to submit the tax returns, claiming that she was not working, and had no earned income

from 1995-1999. (HLI00420; HLI00726). On May 12, 2000, Hartford again requested Post’s

1995-1999 tax returns. This time, Hartford cited the Plan’s language specifying that Hartford

considered “all other income from any employer or for any work” that Post received when

calculating her monthly benefit. (HLI00027; HLI00415-16). On June 30, 2000, Post, through

her attorney, sent her 1995-1999 tax returns and protested that she was only agreeing because

Hartford threatened to terminate her LTD benefits. (HLI01345; HLI00397-408; HLI00368-94;

HLI00347-66). Incidently, such tax returns corroborated Post’s assertion that she had earned no

additional income during these years. 

Lastly, in June 2001, Hartford attempted to have a third party, Empire Medical

Management, set up a FCE to evaluate Post’s claim for continued benefits. (HLI01048-49). The

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parties disagree on whether Post refused the FCE. Hartford claims it instructed Empire Medical

to make arrangements through Post’s lawyer, (HLI00314), and that its efforts were rebuffed by

Post’s lawyer, who claimed Post had not agreed to submit to an FCE. (HLI00059-60). As a

result, Empire Medical Management notified Hartford on June 18, 2001, that Post refused to

submit to the FCE. (HLI01282-83). 

However, instead of directly contacting Post or her attorney, Hartford then contacted

MAG requesting that it “review [Post’s] medical records and speak to Post’s primary care

physician in order to identify [Post’s] functional capabilities and address the claimant’s ability to

perform [a] sedentary to light occupation.” (HLI01299). On September 20, 2001, Dr.

Malievskaia, an Associate Medical Director of MAG, reported her findings from her review of

Post’s medical records, and stated that she “found no objective evidence substantiating this

claimant’s inability to perform sedentary to light occupation.” (HLI01303). Hartford, thereafter,

based its initial termination of Post’s benefits on the opinion of a non-examining physician. For

all of the aforesaid reasons, these factors support the conclusion that Hartford’s decision to

terminate Post’s LTD benefits was arbitrary and capricious. 

 An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

CAROL A. POST, : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 04-3230

:

HARTFORD INSURANCE :

COMPANY, :

:

Defendant. :

____________________________________:

ORDER

AND NOW, this 2nd day of October, 2008, upon remand from the Court of

Appeals and reconsideration of Defendant’s Motion for Summary Judgment (Doc. No. 34), the

Response and Exhibits attached thereto, it is hereby ORDERED that Defendant’s Motion for

Summary Judgment is DENIED, and judgment is entered in favor of plaintiff, Carol A. Post, and

against defendant, Hartford Insurance Company. 

BY THE COURT:

Robert F. Kelly 

ROBERT F. KELLY

SENIOR JUDGE 

 

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