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NOT FOR PUBLICATION CLOSED 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

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JAMES WRIGHT, 

 Plaintiff, 

 

 v. 

 

THE HARTFORD BENEFIT MANAGEMENT 

SERVICES, et al., 

 

Defendants. 

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Hon. Faith S. Hochberg, U.S.D.J. 

Civil Case No. 11-602 (FSH) (MAH)

OPINION

Date: May 11, 2012 

 

HOCHBERG, District Judge; 

 

This matter comes before the Court on the parties’ Cross-Motions for Summary 

Judgment pursuant to Fed. R. Civ. P. 56 and Local Civil Rule 56.1 and Defendants’ motion to 

strike portions of the affidavit filed by Plaintiff’s counsel in support of Plaintiff’s motion for 

summary judgment. The Court has reviewed the parties’ submissions pursuant to Fed. R. Civ. P. 

78. 

I. BACKGROUND 

This case arises from Defendant The Hartford Benefit Management Services’ 

(“Hartford”) decision to terminate Plaintiff James Wright’s (“Wright”) long-term disability 

(“LTD”) benefits under the Group Long Term Disability Plan for the employees of JPMorgan 

Chase Bank (“the Plan”), an employee welfare benefit plan governed by the Employee Retiree 

Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). Wright alleges that 

Hartford’s decision to terminate his LTD benefits was arbitrary and capricious and in violation of 

ERISA. Wright also brings claims for breach of fiduciary duty and breach of contract. 

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The Plan defines “Disability or Disabled” as follows: 

1. during the Elimination Period, you are prevented from performing one or 

more of the Essential Duties of Your Occupation; 

2. for the 24 months following the Elimination Period, you are prevented from 

performing one or more of the Essential Duties of Your Occupation, and as a 

result your Current Monthly Earnings are less than 80% of your Indexed Predisability Earnings; 

3. after that, you are prevented from performing one or more the Essential Duties 

of Any Occupation. 

Declaration of Juan M. Mendez (“Mendez Decl.”), Exhibit A at 21.1

 The Plan defines 

“Elimination Period” as “the first 182 consecutive day(s) of any one period of Disability.” Id. at 

6. The Plan provides that “[y]our Disability must be the result of: 1. accidental bodily injury; 2. 

sickness; 3. Mental Illness; 4. Substance Abuse; or 5. pregnancy.” Id. at 21. “Essential Duty” is 

defined as “a duty that: 1. is substantial, not incidental; 2. is fundamental or inherent to the 

occupation; and 3. can not [sic] be reasonably omitted or changed.” Id. “Your Occupation,” 

which is used to determine disability during the Elimination Period and the twenty-four months 

following, is defined as follows: “as it is recognized in the general workplace. Your occupation 

does not mean the specific job you are performing for a specific employer at a specific location.” 

Id. at 24. “Any Occupation,” which is used to determine disability following the twenty-four 

months after the Elimination Period, is defined as “an occupation for which you are qualified by 

education, training or experiencing, and that has an earnings potential greater than an amount 

equal to the lesser of the product of your Indexed Pre-disability Earnings and the Benefit 

Percentage and the Maximum Monthly Benefit shown in the Schedule of Insurance.” Id. at 20. 

Wright was an employee of JPMorgan Chase (“Chase”) and a participant in the Plan. 

Hartford both funded the Plan and administered claims for benefits under a full grant of 

discretionary authority. Wright was employed as an ISG Project Manager, a position which 

 

1

 Unless otherwise indicated, all references to page numbers are to the Bates numbered pages 

contained in the record as attached in Exhibits A through D to the Mendez Decl. 

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allowed him to telecommute from home and which required him to communicate with coworkers electronically and by telephone and to travel occasionally. Wright ceased working at 

Chase in February 2007 and applied for short-term disability (“STD”) benefits in March 2007, 

due to pain and other symptoms associated with a herniated disc at C6-C7, including numbness 

in his right arm and the inability to more his right arm above his waist. Hartford approved 

Wright’s claim for STD benefits on March 8, 2007 and Wright received STD benefits through 

exhaustion of those benefits on August 21, 2007, during which time he had spine surgery 

(anterior cervical discectomy with fusion) and abdominal hernia repair surgery. 

On December 3, 2007, Hartford approved Wright’s claim for LTD benefits effective 

August 22, 2007 in the amount of $6,145 per month. On February 28, 2008, as part of its review 

of Wright’s claim for continuing LTD benefits, Hartford received an Attending Physician 

Statement (“APS”) from Wright’s treating internist Dr. David A. Garrison, which stated that 

Wright had been diagnosed with cervical spondylosis with myelopathy, secondary to depression. 

On March 5, 2008, a Hartford Claims Examiner approved Wright’s claim for continuing LTD 

benefits, noting that Hartford should follow up on the results of diagnostic testing that Wright’s 

neurologist recommended, including electromyography (“EMG”) and a nerve conduction study 

(“NCS”). 

On May 22, 2008, during a milestone call between Wright and a Hartford Claims 

Examiner, Wright “answered the phone in a business manner ‘Jim Wright, How can I help 

you?’” after which “his speech became less clear” once he realized it was Hartford calling. 

Mendez Decl., Ex. B at 131. After this call, Hartford extended Wright’s LTD benefits, but on 

June 24, 2008, referred Wright’s file to Hartford’s Special Investigation Unit (“SIU”) for review 

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based on the call, the fact that Wright had been discharged from physical therapy due excellent 

range of motion and strength, and the fact that his P.O. box was associated with a business. 

On July 7 and 8, 2008, a third party, ICS Merrill, retained by Hartford’s SIU conducted 

two days of surveillance of Wright. During this surveillance, the contractor filmed Wright 

shoveling and sifting dirt and spraying a hose in his yard for approximately one hour as well as 

driving to a local store. See id., Ex. D. Following a hernia repair operation, Hartford SIU 

conducted an in person interview with Wright on December 18, 2008 at his attorney’s office. 

After the interview, during which Hartford’s SIU Investigator noted that Wright “appeared to 

walk at a normal and with a smooth gait,” Wright signed a statement documenting the interview. 

Id., Ex. B. at 410. In the signed statement, Wright stated that he had muscle spasms from his 

toes to his fingers, pain throughout his body at all times, and was “limited to about 30 minutes 

per activity per day,” including “sitting, standing, walking, driving, and other basis activities.” 

Id. at 416-17. 

Following the in-person interview and a review of Wright’s updated medical records, on 

February 23, 2009, Hartford’s SIU referred Wright’s file to a Hartford Medical Case Manager 

(“MCM”) for review. Wright’s claim for continuing LTD benefits was approved during the 

MCM review. Hartford’s MCM reviewed Wright’s medical records, including a February 18, 

2009 office visit note from physiatrist Dr. Robert H. Vrablik, which, while noting Wright’s 

complaints of pain, stated that Wright’s EMG was negative for cervical radiculopathy and that 

Wright “was able to ambulate into the office today generally normal, reciprocal gait.” Id. at 281. 

After her review of these records and the surveillance video, the MCM requested updated 

opinions from Wright’s treating physicians regarding his functional capacity. Dr. Garrison 

responded that Wright needed to be evaluated by someone with a higher level of expertise such 

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as a physiatrist; Dr. Dwyer responded that since his specialty is spinal surgery and not 

rehabilitation and disability evaluations, he recommended that Wright undergo a functional 

capacity evaluation (“FCE”) in order to determine his level of disability; and Dr. O’Brien 

responded that he would not provide restrictions from a general surgery perspective. Id. at 109-

110, 287, 392. 

In response to a separate request from the MCM, Dr. Vrablik indicated on June 9, 2009 

that he did not believe Wright could perform his job functions on a full time basis, but that he 

should be capable of part-time work with frequent position changes. Id. at 389. Dr. Vrablik also 

stated that Wright’s pain was subjective and he needed to review the results of Wright’s EMG 

and biopsy. The record does not indicate that either an EMG or biopsy was subsequently 

performed. 

On June 16, 2009, Hartford referred Wright’s claim file to an outside contractor in order 

to obtain an independent medical peer review consultant to determine Wright’s functional 

capacity. Dr. Howard Choi, board certified in physical medicine & rehabilitation, then reviewed 

Wright’s medical records along with the surveillance footage and prepared a report in which he 

concluded that Wright was “capable of functioning at a medium physical demand level up to 40 

hours per week.” Id. at 372-76. Dr. Choi did recommend restrictions from heavy physical 

demand occupations due to Wright’s multiple abdominal surgeries. However, Dr. Choi also 

concluded that “[t]here is no objective basis for any limitations and/or restrictions with respect to 

bending, sitting, standing, walking, reaching, fine motor hand activities, performing repetitive 

hand or foot movements, or other work-related activities on a full time basis.” Id. at 375. 

In July 2009, Hartford then had an Employability Analysis Report (“EAR”) for Wright 

prepared based on the restrictions and capability conclusions of Dr. Choi and Wright’s education 

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and employment history. The EAR states that Wright was capable of working in the following 

occupations: Project Director, Operations Officer, Department Manager, Management Trainee, 

and General Supervisor. Id. at 104.2 

Hartford then decided to terminate Wright’s LTD benefits and informed him of this 

adverse benefit determination and provided an explanation in an August 4, 2009 letter. This 

letter detailed the records and evidence reviewed by Hartford’s SIU, including Wright’s medical 

records, Dr. Choi’s independent medical peer review, the EAR, and the July 2008 surveillance 

video. Hartford explained that its decision to terminate Wright’s benefits was due to the fact that 

“the medical, surveillance, on-site interview, and vocational evidence received does not illustrate 

a condition continues to prevent Mr. Wright from performing the Essential Duties of his 

Occupation, or alternative work as detailed above.” Id. at 171. Hartford also explained that its 

“decision to terminate further benefits is not based on any single aspect of Mr. Wright’s claim in 

and of itself, but rather is based on all available information received to date.” Id. 

On August 18, 2009, by letter, Wright administratively appealed Hartford’s adverse 

benefit determination arguing that Hartford’s determination was arbitrary and capricious because 

Hartford relied on “stale” medical records, failed to consider the disabling side effects of 

Wright’s medications, improperly relied on the July 2008 surveillance video, ignored Wright’s 

inability to drive, and relied on the opinion of a non-treating physician who did not review an 

FCE. Id. at 298-301. Hartford then transferred Wright’s claim file to a Hartford Appeals 

Specialist, to which Wright submitted updated medical records. 

In January 2010, the Appeals Specialist referred Wright’s medical records to an outside 

contractor in order to obtain a new independent medical record review. Dr. Eric Kerstman, 

 

2

 According to Hartford, it reviewed Wright’s claim under both the “Your Occupation” disability 

definition as well as the “Any Occupation” definition, which was scheduled to become operative 

on August 22, 2009. 

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board certified in physical and rehabilitation medicine, then conducted a review of Wright’s 

records, the surveillance footage, and contacted Wright’s treating physicians regarding his 

functional capacity. On February 22, 2010, after completing his review of Wright’s record, Dr. 

Kerstman submitted a report in which he concluded that “[b]ased on [his] review of the records 

provided, the surveillance video, and [his] discussions with the attending providers it is [his] 

opinion that [Wright] has chronic pain and is capable of sedentary work” 8 hours per day, 5 days 

per week with restrictions and limitations of lifting no more than 10 pounds, sitting for no more 

than 2 hours with the ability to change positions frequently and for no more than 8 hours total per 

day. Id. at 223. Dr. Kerstman explained that “[a]though [Wright’s] pain symptoms were 

reported as 8/10, it was noted that he was having some relief from his analgesic medications” 

and “[t]he only documented side effects from his medications were constipation which was 

controlled with adjustment of analgesic dosing and laxatives.” Id. 

On February 25, 2010, Hartford informed Wright by letter that after review of his claim 

on appeal it had upheld its determination to terminate benefits. This letter referred to all of the 

records and evidence that Hartford considered and addressed the argument raised by Wright in 

his appeal letter. Hartford referred to the following opinions and statements by Wright’s treating 

physicians: Dr. Garrison’s opinion on September 19, 2009, after Wright’s initial denial of LTD 

benefits, that Wright was not capable of gainful employment due to inability to use a computer 

or to sit for over 15 minutes at a time; Dr. Jeffers’s (chiropractor) statement to Dr. Kerstman that 

Wright was not capable of any work due to his pain and the amount of analgesics he was taking; 

Dr. Garrison’s statement to Dr. Kerstman that while Wright was not capable of working in any 

capacity, he deferred to Dr. Vrablik for specific work restrictions and limitations; and Dr. 

Vrablik’s statement to Dr. Kerstman that he could not determine Wright’s work capabilities 

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without a FCE. However, Hartford explained that “[w]hile we understand that certain 

restrictions and limitations are supported by the totality of the evidence, and that as a result Mr. 

Wright may not be able to perform certain activities or tasks, the totality of the evidence does not 

support that Mr. Wright would have been prevented from performing one of more of the 

Essential Duties of his Occupation or Any Occupation as of 8/4/2009.” Id. at 152 

II. STANDARD OF REVIEW 

Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will be granted if the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, 

“[s]ummary judgment may be granted only if there exists no genuine issue of material fact that 

would permit a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 

139, 143 (3d Cir. 1988). All facts and inferences must be construed in the light most favorable 

to the non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). 

The judge’s function is not to weigh the evidence and determine the truth of the matter, but to 

determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 

“Consequently, the court must ask whether, on the summary judgment record, reasonable jurors 

could find facts that demonstrated, by a preponderance of the evidence, that the nonmoving party 

is entitled to a verdict.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 860 (3d Cir. 1990). 

The party seeking summary judgment always bears the initial burden of production. 

Celotex, 477 U.S. at 323. This burden requires the moving party to establish either that there is 

no genuine issue of material fact and that the moving party must prevail as a matter of law, or to 

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demonstrate that the nonmoving party has not shown the requisite facts relating to an essential 

element of an issue on which it bears the burden. Id. at 322-23. This burden can be “discharged 

by showing . . . that there is an absence of evidence to support the nonmoving party’s case.” Id. 

at 325. Once the party seeking summary judgment has carried this initial burden, the burden 

shifts to the nonmoving party. 

To avoid summary judgment, the nonmoving party must then demonstrate facts 

supporting each element for which it bears the burden, thus establishing the existence of a 

“genuine issue of material fact” justifying trial. Miller, 843 F.2d at 143; accord Celotex, 477 

U.S. at 324. The nonmoving party “must do more than simply show that there is some 

metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 586 (1986). 

“Where the record taken as a whole could not lead a rational trier of fact to find for the 

non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank of 

Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Further, summary judgment may be granted 

if the nonmoving party’s “evidence is merely colorable or is not significantly probative.” 

Anderson, 477 U.S. at 249-50. 

III. DISCUSSION 

A. Hartford’s Termination of Benefits 

Where an ERISA-governed benefit plan gives the plan administrator or fiduciary 

discretion in “interpret[ing] the plan and making benefits determinations,” as the Plan does in 

this case, a court reviewing a benefits denial employs an “arbitrary and capricious” standard.3

 

Skretvedt v. E.I. Dupont De Nemours & Co., 268 F.3d 167, 173–74 (3d Cir. 2001). Under this 

 

3

 “In the ERISA context, the arbitrary and capricious and abuse of discretion standards of review 

are essentially identical.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 n.2 (3d Cir. 2011). 

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standard, the reviewing court must defer to the administrator unless its decision was “without 

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

Hoffman–LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (internal citations omitted). A court may 

overturn a plan administrator's conclusion “if it is clearly not supported by evidence in the record 

or the administrator has failed to comply with the procedures required by the plan.” Id. at 41. 

When evaluating claims under the substantial evidence prong, there are multiple factors that 

should be considered regarding whether a plan's decision was supported by substantial evidence 

in the ERISA context. 

In support of its motion for summary judgment and in opposition to Hartford’s motion for 

summary judgment, Wright argues that Hartford’s denial of his administrative appeal4

 was 

arbitrary and capricious for the following reasons: (1) Hartford failed to consider all of the 

medical evidence provided by Wright’s treating physicians; (2) Hartford placed too much weight 

on the surveillance footage; (3) Hartford ignored the recommendation of Wright’s treating 

physicians that Wright undergo an FCE; and (4) Hartford’s determination was improperly 

influenced by a conflict of interest. Hartford contends that its decision to uphold its termination 

of Wright’s LTD benefits was supported by substantial evidence in the administrative record 

including: (1) the July 2008 surveillance footage; (2) the MCM’s review of Wright’s medical 

records; (3) Dr. Choi’s independent medical review in which he concluded that Wright was 

capable of working full time at a medium physical demand level; (4) the EAR indicating several 

jobs available in the national economy of which Wright was capable of performing; and (5) a 

 

4

 “A plan administrator’s final, post-appeal decision should be the focus of review,” though “[a] 

court may of course consider a plan administrator’s pre-final decisions as evidence of the 

decision-making process that yielded the final decision.” Funk v. CIGNA Group Ins., 648 F.3d 

182, 191 (3d Cir. 2011). 

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second independent medical review by Dr. Kerstman, in which he concluded that Wright was 

capable of performing sedentary work on a full time basis with certain restrictions. 

Wright fails to demonstrate that Hartford was arbitrary and capricious in denying his 

claim for continuing LTD benefits. Wright’s argument that Hartford failed to consider the 

medical evidence provided by his treating physicians is not supported by the record. Wright 

points to a September 18, 2009 office visit note in which Dr. Garrison wrote that Wright was not 

capable of gainful employment due to inability to use a computer or to sit for over 15 minutes at 

a time.5 However, the record demonstrates that this note from Dr. Garrison was considered by 

Hartford in its review of Wright’s medical records. See Mendez Decl., Ex. B at 150. Dr. 

Kerstman spoke with Dr. Garrison about this opinion on February 11, 2010, at which time Dr. 

Garrison indicated that, while he believed Wright was not capable of working, he would defer to 

Dr. Vrablik for Wright’s specific work restrictions and limitations. Id. at 221. Dr. Kerstman 

then spoke with Dr. Vrablik who indicated that he could not determine Wright’s work 

capabilities without an FCE and that he was uncertain if Wright’s pain would prevent him from 

returning to work. Id. at 222. Accordingly, it is clear that Hartford and its independent medical 

peer reviewer considered Dr. Garrison’s September 18, 2009 office visit note. 

Wright also contends that Hartford arbitrarily ignored the side effects of his medications 

mentioned in his medical records. Wright does not point to any objective medical evidence in 

the record regarding the purportedly disabling side effects of his medication, but rather focuses 

primarily on an affidavit of Dr. Garrison, made after Hartford’s denial of Wright’s administrative 

appeal. See August 26, 2011 Affidavit of Dr. David M. Garrison (“Garrison Aff.”), Exhibit AG 

 

5

 Hartford points out that just a few months earlier, on May 21, 2009, in response to Hartford’s 

request for his opinion on Wright’s functional capacity, Dr. Garrison declined to offer an 

opinion, explaining that it would be more appropriate for Wright to be evaluated by “someone 

with a higher level of expertise,” for example, “[a] clinical evaluation by a physician who 

specializes in pain management, physiatry.” Mendez Decl., Ex. B at 392. 

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to the Affidavit of Kevin K. Kutyla in Support of Motion for Summary Judgment (“Kutyla 

Aff.”). In this affidavit, Dr. Garrison states that his records, which were turned over to Hartford 

during its review of Wright’s claim, list all of Wright’s medications and that “[t]hose records 

would clearly indicate to any competent physician that Mr. Wright is not capable of gainful 

employment due to his chronic pain and due to the effects of the numerous medications.” 

Garrison Aff. ¶ 12. Dr. Garrison then states both that: (1) he told someone from Hartford over 

the phone that “while Mr. Wright is capable of doing yard work for an hour or two, his chronic 

pain and the side effects of his medication prevent him from being gainfully employed,” Id. ¶ 10; 

and (2) that had anyone at Hartford asked him about anything other than the surveillance footage, 

he would have responded that Wright is not capable of any gainful employment due to the side 

effects of his numerous medications. Id. ¶ 18. 

The Court reviews Hartford’s benefits determination based on the record available to the 

plan administrator at the time of the determination. Kosiba v. Merck & Co., 384 F.3d 58, 69 (3d 

Cir. 2004). Therefore, Dr. Garrison’s opinion regarding the disabling side of effects of Wright’s 

medications is significant only to the extent that Dr. Garrison communicated this information to 

Hartford during its review of Wright’s claim.6 Significantly, Wright does not point to any 

evidence in the medical records actually before Hartford during the administrative appeal which 

 

6

 Hartford moves to strike the Garrison Affidavit along with other exhibits attached to Wright’s 

motion for summary judgment. With respect to the affidavit, while Hartford is correct that the 

Court’s review is generally limited to the record before Hartford at the time of its benefits 

determination, anything said to Hartford by Dr. Garrison would be considered part of the 

administrative record. See Baker v. The Hartford Life Ins. Co., No. 08-6382, 2010 WL 2179150, 

at *7 (D.N.J. May 28, 2010). Therefore, the Garrison Affidavit will not be stricken. 

 Hartford seeks to strike other exhibits attached to Wright’s motion for summary judgment 

on the grounds that some of these exhibits constitute medical records that were not submitted to 

Hartford during its administrative review and some were not properly authenticated. Hartford 

does, however, acknowledge that some of these allegedly improperly authenticated documents 

are already included in the administrative record filed by Hartford. It is not necessary to strike 

these exhibits as the Court has not considered any medical records that were not part of the 

record before Hartford or any documents that were not properly authenticated. 

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demonstrates that he was disabled according to the terms of the Plan due to these side effects. 

Hartford argues that Wright raised this argument regarding the side effects of his medication for 

the first time in letter administratively appealing the initial denial of LTD benefits. According to 

Hartford, none of the records submitted by Wright on appeal provide objective evidence of 

disabling side effects of his medications. See Mendez Decl., Ex. B at 255-92.7

 The record 

demonstrates that Hartford did in fact consider the side effects of Wright’s medications in its 

review of his claim for LTD benefits. Dr. Kerstman’s report indicates that he was asked to 

consider the “possible side effects from the medications” and that he concluded that “[t]he only 

documented side effects from his medications were constipation which was controlled with 

adjustment of analgesic dosing and laxatives.” Id. at 223. 

Wright’s argument that Hartford’s denial of his appeal was arbitrary and capricious 

because Hartford ignored the opinions of his treating physicians is not supported by the record. 

Wright does not point to any objective clinical evidence in the record in support of his claim that 

he was disabled under the Plan. Wright does not point to any clinical tests in his medical records 

demonstrating his functional limitations. As Hartford points out, the only objective test results in 

the record regarding Wright’s functional capacity is a December 2008 EMG report of his upper 

and lower extremities, which was negative for cervical radiculopathy. It is within Hartford’s 

discretion to consider the opinions of Wright’s treating physicians along with the opinions of its 

independent medical reviewers and to credit the latter over the former. The Supreme Court has 

made clear that “courts have no warrant to require administrators automatically to accord special 

weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a 

 

7

 Hartford notes that the only mention of side effects of medication in Wright’s records 

submitted on appeal is Dr. Vrablik’s May 18, 2009 note that Wright “denies any other side 

effects.” Mendez Decl., Ex. B at 279. 

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discrete burden of explanation when they credit reliable evidence that conflicts with a treating 

physician's evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).8

 

Here, Dr. Kerstman, the independent medical expert who reviewed Wright’s medical 

records on appeal, spoke with Wright’s treating physicians and considered their opinions—in 

which they were unwilling to state conclusively that Wright was disabled under the Plan—and 

came to the conclusion that Wright was able to perform sedentary work with some physical 

restrictions. Wright has failed to demonstrate that Hartford’s decision to uphold the denial of his 

benefits based in part on Dr. Kerstman’s report was arbitrary and capricious. 

Wright’s argument that Hartford improperly relied on the July surveillance footage is 

unavailing and does not support a finding that Hartford’s denial of his LTD benefits was 

arbitrary and capricious. Wright argues that “a careful analysis of the surveillance footage does 

not unequivocally prove that the Plaintiff is no longer disabled.” Pl. Mot. Br. 5. That, however, 

does not correctly state the legal standard, nor was the surveillance film the only evidence that 

Hartford relied upon. Hartford mentioned the surveillance footage in only one paragraph of its 

six-page letter to Wright informing him of its basis for denying his appeal. There is no 

indication that Hartford’s consideration of the surveillance footage of Wright digging, shoveling, 

and moving containers of dirt at a time when he claimed to be unable to perform his sedentary 

 

8

 Wright relies on Stith v. Prudential Ins. Co. of Am., 356 F. Supp. 2d 431 (D.N.J. 2005) in 

support of his argument that it is arbitrary and capricious for an administrator to discount a 

claimant’s treating physicians’ opinions regarding claimant’s pain in favor of a medical 

consultant’s opinion. In Stith, the court held that Prudential’s reliance on its medical consultant 

was arbitrary and capricious where that consultant completely rejected the opinions of claimant’s 

three treating physicians regarding claimant’s chronic pain without explanation on the basis that 

pain is subjective. Id. at 439-40. Here, however, Dr. Kerstman acknowledged Wright’s 

physicians’ opinions regarding his pain and accounted for that pain by concluding that Wright 

was capable of performing sedentary work with certain physical limitations. Additionally, it is 

clear that Dr. Kerstman considered Wright’s physicians’ opinions in light of objective clinical 

evidence such as Wright’s December 2008 EMG. 

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occupation, as one piece of evidence among many, was improper and Wright cites no case law 

demonstrating that it was arbitrary and capricious. 

Wright argues that Hartford acted in an arbitrary and capricious manner by failing to 

provide a FCE based on the opinion of Wright’s treating physicians that it would be useful in 

determining his functional capacity. “When challenging the determination of an ERISA plan 

administrator, the plaintiff bears the burden of establishing that he is disabled under the plan and 

entitled to continuing benefits.” Williams v. Metro. Life Ins. Co., No. 08-1478, 2010 WL 

936147, at *7 (D.N.J. Mar. 12, 2010). The Plan clearly states that “[a]ll proof submitted must be 

satisfactory to [Hartford].” Mendez Decl., Ex. A at 17. Hartford was not obligated to conduct 

testing or gather evidence additional to that which was submitted by Wright. See Stith, 356 F. 

Supp. 2d at 440. Therefore, its failure to do so was not arbitrary and capricious. 

Finally, the Court considers Wright’s argument that Hartford’s role as Plan insurer and 

administrator creates a structural conflict of interest that must be weighed in favor of a finding 

that Hartford’s denial of Wright’s LTD benefits was arbitrary and capricious. The Supreme 

Court has held that a conflict of interest arises where “a plan administrator both evaluates claims 

for benefits and pays benefits claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008). 

“In such a circumstance, ‘every dollar provided in benefits is a dollar spent by . . . the employer; 

and every dollar saved . . . is a dollar in [the employer’s] pocket.’” Id. (quoting Bruch v. 

Firestone Tire & Rubber Co., 828 F.2d 134, 144 (3d Cir. 1987)). The court considers this 

conflict of interest as one factor “of several different considerations” which that court takes into 

account. Id. at 117. The Supreme Court explained that this 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 

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vanishing point) where the administrator has taken active steps to reduce potential 

bias and to promote accuracy, for example, by walling off claims administrators 

from those interested in firm finances, or by imposing management checks that 

penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits. 

Id. (internal citation omitted). 

Hartford argues that the conflict of interest should be given little to no weight because 

Hartford has taken the very steps mentioned in Glenn to wall of its claims administrators and to 

encourage accurate benefits determinations and Wright has failed to demonstrate any evidence 

showing a link between Hartford’s conflict of interest and its denial benefits determination. See 

Grimes v. Prudential Fin. Inc., No. 09-419, 2010 WL 2667424, at *15 (D.N.J. Jun. 29, 2010) 

(“To demonstrate that a causal connection exists, the plaintiff must point to a link between the 

administrator's conflict and its benefits determination.”). Hartford explains, and Wright does not 

contest, that it has taken, inter alia, the following steps to reduce the effect of any conflict of 

interest: (1) its claims administration employees are not compensated based on the number of 

claims denied, but rather, are evaluated based on the accuracy of their determinations; (2) its 

claims department is kept wholly separate from its finance department; (3) and it maintains a 

separate appeals unit and employees handling appeals do not discuss claims with employees who 

made the initial determination on the claim. See Declaration of Bruce Luddy, ¶¶ 8-12. 

Accordingly, while the Court considers the conflict of interest factor to weigh in favor of 

Wright, based on Hartford’s protective measures and Wright’s failure to link any conflict of 

interest to the benefits determination, it does not accord significant weight to this factor.9

 

 

9

 Wright’s reliance on Simon v. Prudential Ins. Co. of Am., No. 10-4286, 2011 WL 2971203 

(D.N.J. Jul. 20, 2011) is misplaced. In Simon the court considered the conflict of interest factor, 

found that it weighed in favor the plaintiff, and ultimately found that Prudential’s denial of 

benefits was arbitrary and capricious. However, in that case, Prudential clearly ignored the 

recommendation of its own pain medicine expert that “a more precise assessment of the 

claimant’s restrictions/limitations cannot be made in the absence of a forensic physical 

assessment,” yet listed, in its appeal letter to plaintiff, that doctor’s review as one of the four 

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B. Preemption 

In addition to the claim discussed above, the Complaint asserts causes of action for 

breach of fiduciary duty10 and breach of contract. While Hartford moves for summary judgment 

on these claims, Wright fails to discuss them in either his opposition brief or in his motion for 

summary judgment and, therefore, appears to have abandoned these claims. Regardless, these 

state law claims are preempted by ERISA and the breach of fiduciary duty claim, to the extent it 

is made under ERISA § 502(a)(3), is improper. 

ERISA preempts “any and all State laws insofar as they may now or hereafter relate to 

any employee benefits plan.” 29 U.S.C. § 1144(a). “[A]ny state-law cause of action that 

duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the 

clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.” 

Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004). Wright’s breach of contract claim and 

his breach of fiduciary duty claim, to the extent it is brought as a state law claim, are, therefore, 

preempted by ERISA. See Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir. 1989) (holding breach 

of contract claim preempted); Schmelzle v. Unum Life Ins. Co. of Am., No. 08-734, 2008 WL 

2966688, at *3 (D.N.J. Jul. 31, 2008) (holding breach of fiduciary duty claim preempted). 

 

pieces of evidence on which it relied. Id. at *2-4. Based on this, the court found that “no 

reasonable person could conclude that, when Prudential ignored the opinion and 

recommendation of its pain medicine expert, it acted solely in the interest of the beneficiary, 

Plaintiff.” Id. at *5. The reasoning of the Simon court does not apply here where there is no 

indication that Hartford ignored the clear recommendation of either of its experts or the opinions 

of any of the relevant doctors. Rather, the record demonstrates that both Prudential and its 

independent medical reviewers considered the opinions of all of Wright’s treating physicians and 

that Prudential credited the opinions of its medical reviewers in determining that Wright was no 

longer entitled to LTD benefits under the Plan. 

10 It is not clear whether this breach of fiduciary duty claim is made under state law or under 

ERISA § 502(a)(3). Both will be discussed. 

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To the extent that Wright’s breach of fiduciary duty claim is made under ERISA § 

502(a)(3), it is improper. ERISA § 502(a)(3) is considered a “catchall” provision which “offer[s] 

appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere 

adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512 (1996). Here, Wright has 

challenged Hartford’s benefits determination and brought a claim under ERISA § 502(a)(1)(B) 

“to recover benefits 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). Therefore, he “cannot pursue the same claim based on breach of fiduciary duty 

under the ‘safety-net’ provisions of [ERISA § 502(a)(3)].” Powell, II v. Greater Media Inc. 

Long Term Disability Plan, No. 07-726, 2008 WL 5188789, at *3 (E.D. Pa. Dec. 10, 2008). 

IV. CONCLUSION 

For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED and 

Defendants’ motion for summary judgment is GRANTED. In addition, Defendants’ motion to 

strike is DENIED. An appropriate Order shall follow. 

/s/ Faith S. Hochberg__________ 

Hon. Faith S. Hochberg, U.S.D.J.

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