UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Wayne R. Urso

v. Civil No. 06-cv-346-JM

 Opinion No.: 2008 DNH 004

Prudential Insurance

Company of America

O R D E R

In this action brought pursuant to the Employee Retirement

Income Security Act, 29 U.S.C. §§ 1001, et seq. (1999) (“ERISA”),

plaintiff Wayne Urso (“Urso”) seeks to enforce payment of longterm disability benefits allegedly due under an employee welfare

plan insured by defendant Prudential Insurance Company of America

(“Prudential”). See 29 U.S.C. § 1132(a)(1)(B). Prudential

objects, claiming Urso has received all the benefits to which he

is entitled. Before the court are both plaintiff’s and

defendant’s Motions for Judgment on the Administrative Record

(document nos. 15 and 17, respectively). For the reasons set

forth below, I find that plaintiff is disabled and, therefore,

reverse defendant’s decision to deny him long-term disability

benefits.

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 1 of 36
1The administrative record is Bates-stamped with the prefix

“WU,” presumably for the claimant, Wayne Urso. All references to

the administrative record simply cite the Bates-numbered pages.

2“Thoracic outlet syndrome” occurs in the thorax region of

the body and refers to “compression of the nerves and blood

vessels to the arms, commonly caused by motor vehicle accident or

extensive computer use.” http://www.tosmri.com/. Pronator teres

syndrome” refers to pain in the wrist and forearm associated with

the pronator teres muscle, which serves to turn the forearm so

the palm faces downward and is innervated by the median nerve. 

See http://en.wikipedia.org.wiki/Pronator_teres-muscle. “Carpal

tunnel syndrome” refers to a condition involving the carpal bones

of the hand and “occurs when the median nerve becomes pinched due

to swelling of the nerve or tendons or both. The median nerve

provides sensation to the palm side of the thumb, index, middle

fingers, as well as the inside half of the ring finger and muscle

power to the thumb. When this nerve becomes pinched, numbness,

tingling and sometimes pain of the affected fingers and hand may

occur and radiate into the forearm.” http://www.webmed.com/painmanagement/carpal-tunnel/carpal-tunnel-syndrome. 

2

Background1

1. Procedural History

Plaintiff’s journey to this juncture has been a long one. 

He began pursuing his claim for long-term disability (“LTD”)

benefits in January 2000. At that time he worked as a computer

software engineer with Comsys Information Technology Services,

Inc. (“Comsys”), in Londonderry, New Hampshire, but stopped

working because of chest, neck and arm pains that were diagnosed

as thoracic outlet syndrome, pronater teres syndrome and carpal

tunnel syndrome.2 Plaintiff initially received disability

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 2 of 36
3

benefits under the employee welfare benefits plan at issue in

this litigation (the “Plan”). In February 2002, however,

defendant determined plaintiff was no longer eligible for

benefits, because he could be “gainfully occupied” within the

meaning of the Plan, which disqualified him from receiving

benefits. Plaintiff challenged that decision, but on March 25,

2002, defendant notified plaintiff it would uphold its

determination. Defendant ceased making payments effective April

17, 2002. 

Plaintiff then retained counsel to pursue his claim for

benefits. A second administrative appeal was filed on July 12,

2002, and also was denied, on October 29, 2002. Defendant again

explained its position that neither plaintiff’s physical

limitations nor his depression prevented him from performing the

duties of the occupations it had identified. WU0105b.

Rather than file a third and final appeal, on January 23,

2003, plaintiff commenced an action under ERISA to enforce the

provisions of the Plan allegedly entitling him to benefits. See

Urso v. Prudential Ins. Co. of Am., Civ. No. 03-024-JD (D.N.H.)

(“Urso I”). Though plaintiff had not obtained a final decision

from the Appeals Committee, the court found defendant’s failure

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 3 of 36
3“Somatoform disorder” is “any of a group of disorders

characterized by physical symptoms representing specific

disorders for which there is no organic basis or known

physiological cause, but for which there is presumed to be a

psychological basis.” http://dictionary.reference.com/browse/

somatoform%20disorder. The physical symptoms may include “pain,

nausea, depression, dizziness.. . . The complaints are serious

enough to cause significant emotional distress and impairment of

social and/or occupational functioning.. . . A diagnosis of

somatoform disorder implies that psychological factors are a

large contributor to the symptom’s onset, severity and duration.” 

http://en.wikipedia.org/wiki/Somatoform_disorder.

4

to timely review plaintiff’s appeal rendered the October 29,

2002, decision the “final decision” for purposes of exhaustion. 

See Urso I, slip op. at 4 (D.N.H. Nov. 23, 2004) (citing 29

C.F.R. § 2506.503-1(i)(3)). The court remanded the case back to

the Plan administrator, because it concluded plaintiff had been

denied a full and fair hearing of all the relevant evidence. See

id. at 12-13. 

On remand, defendant evaluated all of plaintiff’s medical

records, including his workers’ compensation file from the

Massachusetts Department of Industrial Accidents, and issued its

final decision on July 1, 2005. WU0108A-F. Defendant determined

that plaintiff had been entitled to benefits for his depression

and somatoform disorder3 for the full 24 month period that the

Plan provides for its subscribers with mental disabilities, and

awarded him the remainder of those benefits due. WU0108E. 

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 4 of 36
5

Defendant concluded again, however, that plaintiff had been

properly denied further payments for physical disability benefits

on April 17, 2002. WU0108E; WU0198A-F. In response, plaintiff

filed the instant action, challenging the decision to deny him

LTD benefits for his physical ailments.

2. Factual History

Plaintiff lived in Derry, New Hampshire, when he worked as a

computer software engineer with Comsys. He worked as a projectbased consultant, principally with the Massachusetts Institute of

Technology. WU0154; WU0187ZG. Plaintiff’s work brought him to

various project sites, which often required him to work on

computers in unusual locations, such as overhead spaces in

bunkers or airplanes. WU0187EL. In 1997, he began experiencing

the physical problems which eventually led to his stopping work

on January 18, 2000. Pl.’s Mot. Ex. 1 (Aff. of Wayne Urso, “Urso

Aff.”), ¶ 10. Plaintiff complained of strain injuries from the

repetitive typing in awkward positions, that were diagnosed as

thoracic outlet syndrome, pronater teres syndrome and carpal

tunnel syndrome. WU00042-43. At the time he stopped working,

his annual salary was in excess of $109,000. Urso Aff. ¶ 8. He

filed for disability benefits under the Plan on January 26, 2000,

and, after completing the 90 day elimination period, was awarded

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 5 of 36
4Dr. Patterson specifically found: “he will need permanent

mild restrictions with respect to prolonged computer use and

repeated activities at and above shoulder levels or in awkward

positions.” WU0144

6

them effective April 17, 2000. WU0048-50; WU0082.

Since July 1999, plaintiff has been treated by Dr. William

B. Patterson, who is board certified in both Internal Medicine

and Occupational and Environmental Medicine, and was chairman of

the Medical Policy Board of Occupational Health and

Rehabilitation. WU0085-86; WU0197EL-EN. While under Dr.

Patterson’s care, plaintiff was referred to various specialists. 

WU0109-11; WU0187EJ-FN. In January and March of 2000, plaintiff

had surgery for the carpal tunnel and pronator teres syndromes. 

WU0126-27; WU0132-33. Although he did physical and occupational

therapy after his surgeries, he did not recover as expected. On

June 19, 2000, Dr. Patterson determined that plaintiff had

reached a medical endpoint, because his condition was improved as

much as it was going to improve. At that time, the pronator

teres syndrome was resolved, but plaintiff continued to suffer

from mild thoracic outlet syndrome and residual carpal tunnel

syndrome. WU0187ZI. Dr. Patterson recommended restricted work

conditions, which could not be accommodated in plaintiff’s prior

position with Comsys.4 Plaintiff did not return to work, either

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 6 of 36
5Paresthesia is “a skin sensation, such as burning,

prickling, itching, or tingling, with no apparent physical

cause.” http://dictionary.reference.com/search.

7

at Comsys or elsewhere.

In March 2001, Dr. Stefanos Kales examined plaintiff as part

of his workers’ compensation claim. WU0187ZG-ZL. Plaintiff

complained of pain and numbness in both hands, with increased

numbness in his fingers from overhead activities, soreness and

stiffness in his neck, and disturbed sleep. WU0187ZI. Plaintiff

reported that he walked almost daily, performed light housework

and was completely independent in all mundane activities. Dr.

Kales examined plaintiff and confirmed that he had mild

paresthesia5 bilaterally, although his left side was weaker and

more numb than his right side. He concluded that plaintiff had a

partial disability of a permanent nature and that he had reached

a “maximal medical improvement” endpoint. WU0187ZK. Dr. Kales

restricted plaintiff to driving no more than 45 minutes at a

time, doing computer work only 1-3 hours per day, and changing

positions frequently. Id. Consistent with previous diagnoses,

Dr. Kales opined that plaintiff’s medical problems were likely

caused by the awkward, overhead positions in which he had

frequently worked, and which had caused nerve entrapment

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syndromes of the upper extremities. WU0187ZK. Plaintiff settled

his workers’ compensation claim on October 19, 2001. WU0187EFEG; WU0187GK & WU0187RL-RP.

Sometime in the summer of 2001, plaintiff decided to

relocate to his vacation home in Errol, New Hampshire, and to

sell his primary residence in Derry, New Hampshire, to reduce his

living expenses and offset some of the financial difficulties

caused by his job loss. WU0079; WU0145. Also in the summer of

2001, plaintiff began experiencing symptoms of depression, which

Dr. Patterson diagnosed on September 17, 2001. WU0071. In Dr.

Patterson’s opinion, plaintiff’s medical problems and the

resulting loss of his job, income and lifestyle changes causally

contributed to the depression. Id. While plaintiff was not

cognitively impaired by the depression, it did impact his

functional ability, affecting his moods and disturbing his sleep. 

He was prescribed antidepressants to treat it. WU0149-51. 

In November 2001, plaintiff began treatment at the Northern

New Hampshire Mental Health Center, with a nurse practitioner,

Kathy Patch. WU0156-68. Ms. Patch confirmed Dr. Patterson’s

assessment that plaintiff suffered from depression and anxiety,

and determined he also had adjustment disorder. She treated

plaintiff for “dysphoric mood secondary to medical and financial

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 8 of 36
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problems.” WU0083.

In February 2002, plaintiff notified defendant that he had

worked with vocational rehabilitation counselors, and was 

currently working with a state employment agency to find

meaningful work he could perform, given his limitations. WU0080. 

Although plaintiff had not yet succeeded in finding a job, he

invited any assistance defendant could provide in that endeavor. 

Id.

Shortly thereafter, on February 26, 2002, defendant notified

plaintiff that it had determined he was no longer disabled within

the meaning of the Plan, and that his disability benefits would

end as of April 17, 2002. Under the Plan, plaintiff had been

disabled in January 2000, because he was:

unable to perform the material and substantial

duties of [his] regular occupation due to [his]

sickness or injury, and [he had] a 20% or more

loss in [his] indexed monthly earnings due to that

sickness or injury. 

WU0081. After 24 months, however, plaintiff would have continued

to receive payments, in the form of LTD benefits, only if

defendant determined that:

due to the same sickness or injury, [he was]

unable to perform the duties of any gainful

occupation for which [he was] reasonably fitted

by education, training or experience. 

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Id. Defendant concluded there was no medical evidence of an

impairment that would prevent plaintiff from being “gainfully

occupied,” because any one of the following five identified

positions could accommodate plaintiff’s work restrictions and

physical limitations:

1) logistics engineer, estimated wage of $31.20/hour,

2) consultant, estimated wage of $45.15/hour,

3) data base administrator, estimated wage of $35.72/hour,

4) data base analyst, estimated wage of $32.80/hour,

5) information scientist, estimated wage of $31.80/hour.

WU0082. These jobs were located in the Manchester, New

Hampshire, labor market. At that time, however, plaintiff lived

in Errol, New Hampshire, approximately 170 miles and a three hour

drive north of Manchester. Defendant explained its finding by

stating that “[a]lthough you currently live in northern New

Hampshire, it is reasonable to assume that you would have

maintained employment with your original employer had you

remained in that local labor market.” Id. 

Defendant also determined that plaintiff’s depression was

not so disabling to warrant continued benefits, because he did

not have any “cognitive impairments, there were no persistent

disabling symptoms of depression, there was no evidence of a

disabling anxiety component. Your psychiatric condition in and

of itself did not support a criteria for Total Disability as

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defined by the policy.” WU0083. Defendant concluded plaintiff

would benefit from therapy to improve his coping skills, but his

mental condition did not preclude him from becoming gainfully

employed. Id. 

Plaintiff challenged the decision and provided medical

support for his claimed disability. Although plaintiff conceded

that his education and training enabled him to do the identified

jobs, he contended his limited keyboarding ability would preclude

him from actually being able to perform those jobs. WU0087b. 

Dr. Patterson examined plaintiff on March 21, 2002, and found he

still suffered from mild tingling and pain in the upper arms,

with mild stiffness in the neck and diminished sensations, but

that he had full neck range of motion. As part of that

examination, Dr. Patterson also documented that plaintiff

continued to be moderately depressed. Dr. Patterson disputed

defendant’s position that plaintiff’s symptoms were “primarily .

. . self reported,” and concluded plaintiff was still disabled

from gainful computer work due to severe, chronic thoracic outlet

syndrome and moderately severe depression. WU0085-86; WU0187KGKH. Despite that report, on March 25, 2002, defendant affirmed

its conclusion that plaintiff was not disabled and ceased

benefits payments effective April 17, 2002. WU0087a.

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Separate from his claim for LTD benefits from defendant,

plaintiff was pursuing a claim for benefits from the Social

Security Administration. As part of that process, on April 5,

2002, the Social Security Administration had plaintiff evaluated

by a psychologist, Dr. Laurie Brodeur. WU0093. She classified

plaintiff as suffering from major depression. Id. Plaintiff’s

claim for Social Security disability benefits was approved in

July 2002. WU0231. 

Sometime in 2002, plaintiff began seeing Dr. Alan Kaplan, a

cardiologist, who diagnosed plaintiff with coronary artery

disease, hypertension, hyperlipidemia, and diabetes. Plaintiff

was treated with medications, diet and exercise. WU0108C. 

During this period, plaintiff appears to have been referred to

Dr. Lisa Gagne to treat his diabetes. WU0187DN-DX.

In January 2003, as part of plaintiff’s continued Social

Security disability benefits, he was evaluated by Dr. Ernest

Desjardins, a Neuropsychologist with the Massachusetts Department

of Industrial Accidents, who prepared an extensive report. 

WU0187RA-RK. Dr. Desjardins diagnosed plaintiff with “cognitive,

motor, and sensory asymmetries and deficits” that were

“consistent with moderate to severe bilateral cerebral

dysfunction.” WU0187RI. Dr. Desjardins concluded that

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 12 of 36
6“Hypertensive retinopathy is damage to the retina due to

high blood pressure (i.e. hypertension).” 

http://en.wikipedia.org/wiki/Hypertensive_retinopathy. 

13

plaintiff’s medical problems were related to a combination of his

“repetitive motion injuries, the severe treatment-resistant major

depression, and the severe somatoform or pain disorder.” Id. 

Dr. Desjardins recommended plaintiff seek more effective

treatment for his depression, including therapy. He also

recommended plaintiff renew his efforts for LTD benefits. 

WU0187RK.

Throughout 2003, plaintiff’s physical health did not

improve. On May 19, 2003, plaintiff was examined by Dr. Kaplan

and reported that he felt well, without any chest pressure or

shortness of breath, yet Dr. Kaplan found he also had increased

hypertensive retinopathy6 and elevated blood pressure. WU0187BDBE. Again Dr. Kaplan prescribed a combination of dietary changes

and medication. In July 2003, Dr. Patterson examined plaintiff,

who reported that he had been “relatively stable” since his last

visit in 2002. WU0187KG-KH. Although plaintiff had lost weight,

Dr. Patterson encouraged him to exercise more, as a means of

alleviating his physical and mental symptoms. Dr. Patterson

concluded that, based on his “familiarity with [plaintiff’s]

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 13 of 36
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condition” and his review of the neuropsychological testing,

plaintiff remained “completely disabled from gainful computer

work.” WU0187KH. 

In January 2004, plaintiff returned to Dr. Kaplan for a

routine evaluation and was found to be stable, although he had

gained weight which caused his lipid levels and his plaquing to

increase. WU0187BB. Dr. Kaplan again prescribed diet and

exercise to treat plaintiff’s condition. By late spring,

plaintiff began experiencing chest pains, but which resolved with

rest. On August 3, 2004, plaintiff had a cardiac catheterization

procedure that involved placement of a stent. WU0187BW-CA. The

stent placement further restricted plaintiff, by limiting his

ability to climb stairs and lift more than 20 pounds. WU0187CE,

CW-CX. Following the procedure, plaintiff’s musculoskeletal

complaints and neurological symptoms were reduced, including his

neck stiffness and chest and abdominal pain. WU0187AZ. 

Plaintiff, still experiencing health problems, went to see

Dr. Raymond Psonak, an Environmental Medicine specialist, in

January 2005. WU0187MG-MC. Dr. Psonak found that plaintiff had

heavy metal toxicity, which may have contributed to his health

deterioration and which would require chelation treatments to

alleviate the adverse health effects. WU0108C; WU0187MC. Dr.

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Psonak opined that plaintiff’s ability to work would be impaired

until the effects were reversed. Id. 

On March 21, 2005, Dr. Patterson again examined plaintiff

and found him in essentially the same condition as he had been

when last seen in July 2003, but with several medical problems

not related to his work injuries. WU0187EF-EG. Plaintiff

complained to Dr. Patterson of persistent symptoms from his work

injury. Dr. Patterson’s examination found: bilateral tingling

in both hands within 15 seconds of elevation; tingling and pain

in both forearms; and diminished sensation in the median nerve

bilaterally; but also that plaintiff had full range of neck and

shoulder motion, normal elbows, intact reflexes in the upper

extremities, and very good muscle strength bilaterally. 

WU0187EF. Dr. Patterson noted plaintiff reported his depression

continued and that plaintiff attributed the depression to his

life status change, physical limitations, pain, and disputes over

disability coverage. Dr. Patterson again reconfirmed his

diagnosis of moderately severe, bilateral thoracic outlet

syndrome, bilateral carpal tunnel syndrome and depression, and

concluded plaintiff was still “substantially impaired and unable

to return to his former work” with computers. WU0187EG-EH. 

In June 2005, on remand following Urso I, defendant reviewed

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plaintiff’s medical file and conducted direct observations of

him, but did not perform another physical examination. An

independent physician specializing in Occupational Medicine,

Internal Medicine and Pulmonary Diseases, Dr. Clayton Cowl,

evaluated plaintiff’s medical records, including his workers’

compensation file. WU0108C; WU0187S-V. Dr. Cowl agreed with Dr.

Patterson’s findings that plaintiff continued to have tingling in

the hands that was aggravated by shoulder extension, and to have

diminished sensation in the median nerve bilaterally, but that he

also had normal reflexes and very good muscle strength. Id. Dr.

Cowl also agreed that plaintiff’s cardiac problems would restrict

his ability to lift more than twenty pounds or climb more than

two flights of stairs. Id. 

Dr. Cowl disagreed, however, that these medical limitations

precluded plaintiff from being gainfully occupied within the

meaning of the Plan and rejected Dr. Patterson’s opinion about

plaintiff’s incapacity to work. Dr. Cowl also questioned

plaintiff’s metal toxicity and found it would not adversely

impact his work capacity. Based on his review of plaintiff’s

entire medical file, Dr. Cowl concluded that plaintiff could

perform sedentary to light work with the noted restrictions,

including limited keyboarding, restricted grasping, pinching or

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 16 of 36
17

overhead movements, and limited twisting of the wrists. 

Defendant, therefore, reaffirmed its previous finding that

plaintiff could perform any of the five occupations identified in

February 2002. WU0108E; WU0302AB-AK.

Defendant also reviewed plaintiff’s mental health records,

including the workers’ compensation and Social Security

Administration claim files. Based on those records, defendant

reversed its prior decision about plaintiff’s mental disability

and determined that he had suffered from mental disabilities

within the meaning of the Plan. Under the Plan however, mental

disability benefits have a lifetime limit of 24 months. 

Accordingly, plaintiff was awarded benefits for the 17 month

period from April 17, 2002, the date defendant had stopped making

payments, through September 16, 2003, the date through which

plaintiff was entitled to have received them. WU0108E. 

Finally, defendant observed plaintiff in the ordinary course

of his life, on May 25, 26, 27 and 28, 2005. WU0187A-Q. 

Defendant found that plaintiff was active in the Kiwanis Club in

Colebrook, New Hampshire, about a 30 minute drive from his home

in Errol. Defendant found that plaintiff was the president-elect

of the Kiwanis club, was the chairman of both the club’s website

committee and the public information committee, and was a member

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 17 of 36
18

of the scholarship committee and the finance committee. See

WU0108E; WU0187I. Plaintiff also audited the club’s books. In

addition to this work for the Kiwanis Club, plaintiff developed

and maintained a website for a local sporting goods store in

Colebrook, and had worked on a commission basis from his home. 

WU0187K. Based on these observations, defendant concluded that

plaintiff could be self-employed, in addition to being able to

perform the previously identified jobs. 

 Discussion

A. Standard of Review

In an ERISA case where a claimant seeks review of the

administrative record, as plaintiff does here, summary judgment

is the vehicle used to decide the issue of entitlement to

benefits. See Bard v. Boston Shipping Ass’n, 471 F.3d 229, 235

(1st Cir. 2006) (using summary judgment to decide eligibility for

benefits based on the administrative record); see also Orndorf v.

Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005)

(explaining limited role of summary judgment where administrative

record is reviewed to determine benefits eligibility). The usual

summary judgment analysis, of reviewing the record to ensure

there are no disputed issues of material fact and construing all

reasonable inferences in favor of the objecting party, see

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19

Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001)

(citing authority), does not apply in an ERISA action challenging

a decision to deny benefits. See DiGregorio v. Hartford

Comprehensive Employee Benefit Serv. Co., 423 F.3d 6, 12 (1st

Cir. 2005) (discussing how cross motions for summary judgment on

the administrative record permits the court to make factual

findings instead of granting inferences to each non-movant);

Orndorf, 404 F.3d at 517 (explaining “the non-movant is not

entitled to the usual inferences in his favor”). 

Because the focus of the court’s review is the final

administrative decision, “the district court sits more like an

appellate tribunal than a trial court.” Leahy v. Raytheon Co.,

315 F.3d 11, 18 (1st Cir. 2002); see also Orndorf, 404 F.3d at

519 (finding the exhaustion and finality requirements of ERISA

focus the review on the administrative decision and preclude

consideration of new substantive evidence); Liston v. UNUM Corp.

Officer Severance Plan, 330 F.3d 19, 24 and n.4 (1st Cir. 2003)

(declining to allow jury trials to resolve ERISA benefits claim). 

“Where review is properly confined to the administrative record

before the ERISA plan administrator, . . . there are no disputed

issues of fact for the court to resolve,” Orndorf, 404 F.3d at

518, and summary judgment must be based on the record before the

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 19 of 36
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court. See id. at 517-18 (holding that no new evidence may be

considered in challenges to the merits of the benefits decision

regardless of the deference given to the plan administrator). 

The analysis is the same for cross motions for summary judgment. 

See id. at 513.

The final administrative decision to be reviewed is

defendant’s July 1, 2005 denial of benefits (“final decision”). 

“‘A denial of benefits challenged under § 1132(a)(1)(B) is to be

reviewed under a de novo standard unless the benefit plan gives

the administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of

the plan.’” Orndorf, 404 F.3d at 517 (quoting Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Defendant

concedes that its final decision is subject to de novo review,

because defendant is collaterally estopped from relitigating this

issue. See Urso I, slip op. at 7 (concluding policy did not give

defendant discretionary authority); see also Ramallo Bros.

Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 89 (1st Cir. 2007)

(explaining issue preclusion). Under a de novo review, the court

interprets the terms of a policy like it would any other contract

terms, looking to the plain language and other manifestations of

the parties’ intent. See Firestone Tire & Rubber Co., 489 U.S.

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 20 of 36
21

at 112 (describing de novo standard of review); see also

Balestracci v. NSTAR Elec. & Gas Corp., 449 F.3d 224, 230 (1st

Cir. 2006) (interpreting ERISA benefit plan under federal

substantive law, based on principles of contract interpretation

and the law of trusts). De novo review requires the court to

determine whether or not the administrative decision was correct

and “‘allows the court to substitute its judgment for that of the

plan administrator.’” Marquez-Massas v. Squibb Mfg., Inc., 344

F. Supp. 2d 315, 321 (D.P.R. 2004) (quoting Kathryn J. Kennedy,

Judicial Standard of Review in ERISA Benefit Claim Cases, 50 Am.

U. L. Rev. 1083, 1084 (2001)). 

The court, therefore, is required to independently evaluate

the facts and opinions in the administrative record, in order to

assess whether or not plaintiff has met his burden of proving

that he is disabled within the meaning of the policy. See

Orndorf, 404 F.3d at 518. “One guiding principle in conducting

de novo review of this ultimate conclusion is that it is the

plaintiff who bears the burden of proving he is disabled.” Id.

at 518-19; see also Terry v. Bayer Corp., 145 F.3d 28, 34 (1st

Cir. 1998) (requiring the insured show the ERISA violation). To

prove defendant’s decision to deny him LTD benefits was

incorrect, plaintiff must show how the evidence demonstrates

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 21 of 36
22

that his work restrictions and driving limitations render him

disabled within the meaning of the Plan. With this standard in

mind, I turn now to the administrative record.

B. Evidence of Plaintiff’s Disability

Plaintiff makes three arguments in support of his claim for

LTD benefits. First, he claims the medical evidence demonstrates

that he is, in fact, disabled. He argues defendant failed to

consider all the evidence the court ordered it to consider on

remand from Urso I, in particular his worker’s compensation file,

and failed to conduct an independent medical evaluation of him. 

Second, he contends defendant’s determination that he could be

gainfully employed relies on jobs that are not available in the

labor market where he lives or which he can access. And finally,

plaintiff asserts that his mental disabilities are a symptom of

his physical injuries and, therefore, should not be subject to

the 24 month limit on benefits payments for mental health-related

disabilities. I address each argument below.

1. Medical Evidence of Plaintiff’s Disability

Plaintiff contends the July 1, 2005 denial of LTD benefits

should be reversed because defendant failed to consider his

worker’s compensation file and failed to conduct a current,

independent physical examination of him. What evidence defendant

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considered, however, is immaterial to my analysis here, because

no deference is given to the plan administrator’s decision in

conducting a de novo review. See Firestone Tire & Rubber Co.,

489 U.S. at 111-15 (explaining de novo standard of review for

ERISA denials); see also Marquez-Massas, 344 F. Supp. 2d at 321

(substituting court’s judgment for the plan administrator’s in de

novo review). “Rather, de novo review generally consists of the

court’s independent weighing of the facts and opinions in [the]

record to determine whether the claimant has met his burden of

showing he is disabled within the meaning of the policy. While

the court does not ignore facts in the record, the court grants

no deference to administrators’ opinions or conclusions based on

these facts.” Orndorf, 404 F.3d at 518 (citing Recupero v. New

Eng. Tel. & Tel. Co., 118 F.3d 820, 830 (1st Cir. 1997). 

Accordingly, plaintiff’s argument that defendant failed to review

the worker’s compensation file or conduct an independent medical

examination of him is unpersuasive and irrelevant to my analysis

of whether or not the denial of benefits was correct. 

A reversal is warranted only if plaintiff proves defendant’s

denial was incorrect, because the record demonstrates he is, in

fact, disabled within the meaning of the Plan. Since plaintiff

bears the burden of demonstrating he is disabled, see Orndorf,

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 23 of 36
7In response to defendant’s request for a comment on the

current diagnoses, Dr. Cowl stated: “The current diagnoses

provided include bilateral carpal tunnel syndrome, status post

sequential median nerve releases in January and March 2000;

hypertension; hyperlipidemia with coronary artery disease;

dysphoria/depression and status post pronator teres release. 

These diagnoses are supported by the medical data submitted for

review.” WU0187U (emphasis added). 

24

404 F.3d at 519, it was plaintiff’s burden to ensure the medical

evidence he deemed relevant was in the administrative record. 

Defendant’s independent medical expert, Dr. Cowl, concluded that

plaintiff had physical limitations and work restrictions

consistent with and based on the opinions of the various doctors

who had treated plaintiff since the onset of his disability in

2000.7 Since Dr. Cowl agreed with the diagnoses of plaintiff’s

problems, defendant was not obliged to obtain independent medical

evidence. See Brigham v. Sun Life, 317 F.3d 72, 85 (1st Cir.

2003) (accepting claimant’s diagnoses and limitations excuses

insurer from obtaining its own medical evidence). Moreover, it

is also clear from the record that defendant, in fact, reviewed

plaintiff’s worker’s compensation file. See WU0187T (listing the

files Dr. Cowl reviewed to issue his report). The administrative

record, therefore, in fact contains the evidence plaintiff now

argues is necessary for his showing of disability. 

After conducting a de novo review of the record, I find that

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 24 of 36
25

plaintiff continues to suffer from physical injuries that impair

his ability to work. The consistent opinions of Dr. Patterson

from 1999 through 2005, Dr. Kales, Dr. Kaplan and Dr. DesJardins,

which Dr. Cowl adopted, support the conclusion that plaintiff

began suffering from the bilateral carpal tunnel, pronator teres

and thoracic outlet syndromes in 1997 because of the repetitive

strain injuries his work with Comsys caused. Despite two

surgeries and postoperative occupational and physical therapy,

plaintiff never fully regained his pre-injury status. From April

2002, when his short-term disability benefits ended, until March

2005, when he was last examined by a doctor, plaintiff’s

condition remained fairly stable with respect to his work-related

injuries, and worsened because of the heart and mental health

problems he developed during that period. The administrative

record, therefore, contains ample medical evidence demonstrating

that plaintiff has health problems stemming from “the same

sickness or injury,” WU0081, that continue to impact his ability

to return to work.

The undisputed evidence, as set out above, consistently

demonstrates that plaintiff continues to suffer from the

following medical problems: (1) bilateral carpal tunnel syndrome

and bilateral thoracic outlet syndrome; (2) persistent numbness,

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 25 of 36
26

tingling and diminished nerve sensations in the upper

extremities, extending into the neck, which are aggravated by

overhead extension, although his reflexes and muscle strength are

both good; (3) hypertension and high blood pressure, for which he

has been prescribed medication and advised to make changes to his

diet and exercise routine; and (4) depression.

2. Ability to be Gainfully Occupied

The critical issue for purposes of plaintiff’s LTD benefits

claim, however, is not simply whether there is medical evidence

of plaintiff’s physical impairments, but whether those specific

injuries prevent him from being “gainfully occupied” as defined

by the Plan. The Plan defines “disabled” to include both a

medical and an economic component. After 24 months of receiving

disability benefits, the Plan provides for payments to continue

as LTD benefits if defendant “determines that due to the same

sickness or injury, [the claimant is] unable to perform the

duties of any gainful occupation for which [the claimant is]

reasonably fitted by education, training or experience.” WU0021

(emphasis in original). The Plan defines “Gainful occupation”

as:

an occupation, including self-employment, 

that is or can be expected to provide you

with an income equal to at least 60% of 

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 26 of 36
27

your indexed monthly earnings within 12 

months of your return to work.

Id. Together these provisions state that LTD benefits may be

awarded only if plaintiff’s same injuries prevented him from

obtaining work which would have enabled him to earn 60% of his

former salary within the first year of returning to work. Since

the plain language of the Plan requires defendant to determine

whether or not plaintiff can be gainfully occupied, the Plan

necessarily must also require that defendant identify a gainful

occupation available to plaintiff. See id.; see also Firestone

Tire & Rubber Co., 489 U.S. at 112 (construing plan provisions

according to their plain language); Balestracci, 449 F.3d at 230

(same).

The factors to be considered when determining whether a

claimant could be gainfully occupied include his “abilities,

skills and education, as well as an assessment of the labor

market in the claimant’s geographic region.” Caldwell v. Life

Ins. Co. of N.Am., 287 F.3d 1276, 1289 (10th Cir. 2002). After

carefully reviewing the complete record, I agree with defendant’s 

conclusion that plaintiff was capable of performing work at a

sedentary to light level of duty, despite his having reached a

medical endpoint of a permanent, partial disability and Dr.

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28

Patterson’s consistent opinion that plaintiff could not return to

his former work with computers. See e.g. WU0187V (Dr. Cowl’s

opinion); see also Black & Decker Disability Plan v. Nord, 538

U.S. 822, 834 (2003) (treating physicians opinions are not given

controlling weight in ERISA cases). The record specifically

demonstrates that plaintiff has advanced computer knowledge,

which has been applied to multiple tasks in a variety of

situations, including writing complex software, consulting, and

trouble-shooting computer problems. See e.g. WU0187KY-LE

(assessing plaintiff’s professional background). Plaintiff

retained these skills despite his work-related injuries, which

explains the consistent medical conclusion that plaintiff’s

physical impairments limit his job options but do not render him

completely unable to work.

My agreement with defendant’s assessment of plaintiff’s

ability to be gainfully occupied, however, ends here. Although I

find plaintiff was able to resume some level of light duty to

sedentary work within the computer industry, there is no evidence

of any jobs which plaintiff could reasonably have been expected

to do, given his physical impairments. The record clearly and

consistently shows that plaintiff’s physical injuries restricted

him to driving no more than one hour at a time, keyboarding no

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 28 of 36
29

more than three hours at a time, climbing no more than two

flights of stairs and lifting no more than 20 pounds over his

head. See e.g. WU0187S-V (Dr. Cowl’s report on plaintiff’s

medical problems and resulting physical limitations). Given

these limitations, under the Plan, for defendant to deny LTD

benefits here, it had to identify jobs no farther than an hour

away from plaintiff’s home that would enable him to earn 60% of

his former salary. Defendant, however, did not do this.

Although vocational evidence of alternative jobs is not

always required, I find that the facts in this case required

defendant to provide plaintiff with a vocational assessment in a

labor market that accommodated his driving restriction. See

Caldwell, 287 F.3d at 1289-90 (citing other circuits and

concluding the need for vocational evidence must be assessed on a

case-by-case basis); cf. Pari-Fasano v. ITT Hartford Life &

Accident Ins. Co., 230 F.3d 415, 420-21 (1st Cir. 2000) (not

requiring vocational assessment because other evidence showed

claimant had only minor restrictions); Quinn v. Blue Cross & Blue

Shiled Ass’n, 161 F.3d 472, 476 (7th Cir. 1998) (reversing denial

of benefits as arbitrary where no vocational evidence was adduced

or considered). While I recognize that plaintiff bears the

burden of proving he is disabled within the Plan, when, as is the

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 29 of 36
30

case here, plaintiff specifically argues his physical limitations

prevented him from performing the jobs defendant identified,

defendant should have considered that limitation when analyzing

his ability to be gainfully occupied. See Gaither v. Aetna Life

Ins. Co., 388 F.3d 759, 773-74 (10th Cir. 2004) (explaining that

defendant has a fiduciary duty to make a reasonable inquiry into

evidence that might support claimant’s theory of entitlement). 

“While a fiduciary has a duty to protect the plan’s assets

against spurious claims, it also has a duty to see that those

entitled to benefits receive them.” Id. at 774.

The record demonstrates that defendant attempted to garner

the necessary evidence to support its determination that

plaintiff was able to perform other occupations. As defendant

explained:

In order to assist Mr. Urso in returning to work

we referred his claim for Vocational Rehabilitation

assistance. A number of occupations were identified

and were within the restrictions and limitations

provided by Dr. Patterson. Therefore, his claim

was terminated as there was no impairment on file

which would have prevented him from performing 

another occupation. 

WU0108N (October 29, 2002 denial letter to plaintiff). The

identified occupations, however, were all located in the

Manchester labor market, a prohibitively distant commute for

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 30 of 36
31

plaintiff, who lived more 175 miles north in Errol. Nothing in

the record indicates that defendant reevaluated the labor market

in 2005, when it issued its final denial. Despite the undisputed

evidence that plaintiff could not drive more than an hour because

of the pain and numbness holding the steering wheel caused,

defendant determined that plaintiff could perform jobs a three

hour drive from his home. This conclusion is wholly undermined

by the evidence of plaintiff’s physical limitations. See e.g.

WU0187EL-EN (June 2000 opinion letter explaining plaintiff’s

upper extremity ailments were aggravated by his 3-4 hour

commuting distance or any prolonged driving); WU0082 (discussing

September 2001 finding that plaintiff could not drive); WU0187ZI

(Dr. Kales’ determination that plaintiff could not drive more

than 30-45 minutes); WU0172 (March 2002 report that plaintiff

cannot drive more than 20 minutes before the pain in his arms

required him to stop the car to move his arms and shoulders to

relieve the aching and numbness); WU0187W-Z (Dr. Soucy’s notes

from June and August 2002 documenting “neck, arm and upper body

pain with associated muscle spasms”); WU0187EF (March 2005

medical evaluation states plaintiff took eight hours to drive a

distance that should have taken three to four hours, because the

pain in his arms required him to stop to move them); WU0187U (Dr.

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 31 of 36
32

Cowl’s finding in June 2005 that plaintiff is “limited in his

ability to perform repetitive grasping and pinching, or to

perform twisting motions of the wrists”). 

Defendant justifies its use of the Manchester labor market

rather than the Errol labor market, by contending that plaintiff

did not need to move, because Comsys would have hired him again. 

The record, however, does not support that finding. To the

contrary, the record indicates that his former position with

Comsys was eliminated, and alternative positions with the company

were not realistic options. See e.g., WU0187LE-G.

Defendant also concluded plaintiff was not disabled because

he could be self-employed, and could thereby satisfy the Plan’s

definition of being “gainfully occupied.” The record, however,

contains no evidence to support this conclusion. Although

defendant relies on the volunteer work plaintiff has done with

the local Kiwanis Club, there is no reasonable basis to conclude

that volunteer work could be parlayed into a home-based business,

or could otherwise generate an income-stream, that would enable

plaintiff to earn 60% of his indexed former monthly salary, which

the Plan requires in order to be a “gainful occupation.”

Defendant also cites the independent contract work plaintiff

has done for a local sporting goods store as support for its

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 32 of 36
33

conclusion that plaintiff could be self-employed. Again,

however, the record contains no evidence of what income that work

has yielded or what plaintiff could reasonably be expected to

earn doing independent computer consulting projects, based either

on what plaintiff actually has been paid by the store in

Colebrook, or on what similar computer-based independent

contractors earn in northern New Hampshire. Because the Plan

requires an alternative occupation to generate 60% of the

claimant’s indexed monthly earnings to avoid payment of LTD

benefits, what plaintiff’s earning potential would be if selfemployed is critical to the disability determination. 

My review of the record indicates that plaintiff has carried

his burden of demonstrating that he cannot be gainfully occupied

and, therefore, is disabled within the meaning of the Plan. 

Defendant has failed to garner the vocational evidence needed to

justify its determination that plaintiff could find an occupation

in the relevant labor market in which he could earn 60% of his

former salary. No vocational evaluation has been done since

plaintiff’s benefits were terminated in April 2002. The jobs

identified at that time, which are the only occupations defendant

has determined plaintiff could perform, do not accommodate his

limited driving ability. Because that restriction resulted from 

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 33 of 36
34

“the same sickness or injury” that caused him to become disabled

in January 2000, and now prevents him from performing the

occupations defendant identified in the Manchester labor market,

plaintiff has shown that he is disabled within the meaning of the

Plan. Based on the record before me, I find defendant

incorrectly denied plaintiff LTD benefits and reverse that

determination. 

3. LTD Benefits based on Mental Health Problems

Plaintiff’s final argument in support of his claim for LTD

benefits is that his mental health problems are a symptom of the

underlying physical injuries which caused his disability. 

Plaintiff has provided nothing to substantiate his claim that his

persistent depression is a symptom of carpal tunnel syndrome,

pronator teres syndrome or thoracic outlet syndrome. Even

accepting as true plaintiff’s argument that he has suffered from

depression secondary to his work-related injuries, the evidence

does not show that the depression was the injury which initially

caused plaintiff to be disabled, as is required to qualify

plaintiff for LTD benefits. Moreover, while the depression may

be related to the work-related injuries plaintiff has suffered,

there is no evidence that it is a symptom of those same injuries. 

The plain language of the Plan limited plaintiff’s right to

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 34 of 36
35

disability benefits for mental health problems, such as

depression, to 24 months of payments. It is undisputed that

plaintiff received this benefit in full. His claim now to

continued benefits because his depression is related to his

disabling physical injuries is unavailing. I will not grant

relief on that basis.

Conclusion

For the reasons set forth in detail above, plaintiff’s

motion for summary judgment is granted (document no. 15) and

defendant’s motion for summary judgment is denied (document no.

17). Plaintiff is entitled to an award of LTD benefits

consistent with the terms of the Plan. 

If, as is the case, plaintiff prevailed, defendant requested

that a hearing be scheduled to determine the appropriate amount

of benefits due. That request is hereby granted. The parties

are ordered to file within ten (10) days of the date of this

order any documents they deem necessary to substantiate their

position on the amount the Plan entitles plaintiff to receive. 

The clerk is ordered to schedule a hearing within thirty (30) 

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 35 of 36
36

days of the date of this order, at which time the parties will be

heard on the appropriate amount they believe plaintiff is due.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 9, 2008 

cc: Robert A. Shaines, Esq.

 Christopher Flanagan, Esq.

 William Bogaert, Esq.

Case 1:06-cv-00346-JM Document 21 Filed 01/09/08 Page 36 of 36