NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KEVIN M. MCCANN, M.D.,

 Plaintiff,

 v.

UNUM PROVIDENT, et al.,

 Defendants.

 CIVIL ACTION NO. 11-3241 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

I. INTRODUCTION

The plaintiff, Kevin M. McCann, M.D., commenced this action 

pursuant to the Employee Retirement Income Security Act of 1974 

(“ERISA”) against, among others, the defendant Hartford Life and 

Accident Insurance Company (“Hartford”). (Dkt. entry no. 1, 

Compl., Count II.)1

 The matter now comes before the Court on cross 

motions for summary judgment by McCann and Hartford, each 

concerning the termination of McCann’s benefit payments under a 

Hartford-issued long-term disability (“LTD”) insurance policy. 

(Dkt. entry no. 42, Hartford Mot.; dkt. entry no. 43, McCann Mot.) 

The Court is tasked with determining whether Hartford acted in an 

arbitrary and capricious manner by terminating McCann’s LTD benefit 

payments.

 1 McCann also raised a claim against the defendant Unum 

Provident. See generally McCann v. Unum Provident, No. 11-3241, 

2013 WL 396182 (D.N.J. Jan. 31, 2013).

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The Court has considered the motions on the papers and without 

oral argument. See L.Civ.R. 78.1(b). For the reasons that follow, 

the Court has determined that Hartford’s decision to terminate 

McCann’s LTD benefit payments was neither arbitrary nor capricious. 

II. FINDINGS OF FACT 2

A. The Plan & The Policy

McCann, a radiologist certified in the sub-specialty of 

interventional radiology, began working for Holzer Clinic

(“Holzer”) in Gallipolis, Ohio in February of 2005. As a Holzer 

employee, McCann participated in the Group Long Term Disability 

Plan for Employees of Holzer Clinic, Inc. (“the Plan”). The Plan 

provided LTD insurance coverage to eligible employees pursuant to 

the terms of Hartford-issued Group Policy Number GVL-16009 (“the 

Policy”), which is governed by ERISA. 

The Policy provides that Hartford will “pay You a Monthly 

Benefit if You: 1) become Disabled while insured under The Policy; 

2) are Disabled through the Elimination Period; 3) are Disabled 

beyond the Elimination Period; and 4) submit Proof of Loss to”

 2 The facts recited here are, unless otherwise indicated, 

undisputed. (Compare dkt. entry no. 42-4, Hartford Statement of 

Material Facts Not in Dispute (“Hartford SOF”), with dkt. entry no. 

44-1, McCann Response to Hartford SOF; compare dkt. entry no. dkt. 

entry no. 43-2, McCann Statement of Material Facts (“McCann SOF”), 

with dkt. entry no. 46, Hartford Response to McCann SOF.) The 

Court thus cites the record only where the Court quotes directly 

from either the parties’ submissions or the administrative record. 

The administrative record appears in sequentially paginated 

portions of the docket at entry numbers 22-2 through 22-12. 

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Hartford. (Administrative Record (“A.R.”) at 866.)3 It also 

provides that Hartford will terminate an insured’s monthly benefit 

payments upon the earliest of several triggering events, including, 

among others, “the date You are no longer Disabled.” (Id. at 868.)

The Policy jointly defines the terms “Disabled” and 

“Disability”. (See id. at 875-76.) Pursuant to the Policy, an 

insured is Disabled or suffers from a Disability if “You are 

prevented from performing one or more of the Essential Duties of

. . . Your Occupation” both during and following the Elimination 

Period. (Id. at 876.) The Policy defines “Occupation”

as it is recognized in the general workplace, that You 

were routinely performing prior to becoming Disabled. 

Your Occupation does not mean the specific job that You 

were performing for a specific employer or at a specific 

location.

If You are a Physician, Your Occupation means the 

general or sub-specialty in which You are practicing for 

which there is a specialty or sub-specialty recognized 

by the American Board of Medical Specialties. If the 

sub-specialty is not recognized by the American Board of 

Medical Specialties, You will be considered practicing 

in the general specialty category.

(Id. at 879.) The Policy defines an “Essential Duty” as “a duty 

that: 1) is substantial, not incidental; 2) is fundamental or 

inherent to the occupation; and 3) cannot be reasonably omitted or 

 3 Under the Policy, the terms “You” and “Your” refer to the 

policyholder. (See A.R. at 879 (bold typeface omitted).) Further, 

it appears that the Elimination Period is the ninety-day period 

following the onset of Disability. (See id. at 862.) 

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changed. Your ability to work the number of hours in Your

regularly scheduled work week is an Essential Duty.” (Id. at 876.)

The Policy also grants Hartford “full discretion and authority 

to determine eligibility for benefits and to construe and interpret 

all terms and provisions of The Policy.” (Id. at 875.)

B. McCann’s Pre-Application Treatment History

McCann, in April of 2007, was diagnosed with a mildly dilated 

ascending aortic root, i.e., an aortic aneurysm.4 A CT scan of 

McCann’s chest was taken on January 9, 2008, and on January 30, 

2008, McCann met and consulted with Dr. Joseph Coselli. Coselli 

was a board-certified cardiothoracic surgeon who served as both a 

professor at the Baylor College of Medicine and the Chief of Adult 

Cardiac Surgery at the Texas Heart Institute in Houston, Texas.

Coselli reviewed the CT scan films, which demonstrated that 

the aneurysm “measur[ed] 4 cm in diameter.” (Id. at 670.) He 

interviewed McCann, and noted that McCann was not in pain, but 

complained of a sleep disorder and presented with hypertension; his 

sitting blood pressure was 152/98. He also noted that McCann had a

history of hypertension, a risk factor for aortic aneurysm. 

 4 An aortic aneurysm consists of an abnormal enlargement of a 

weakened area of the aorta. Such aneurysms “are prone to rupture 

once they reach a certain size. Should a thoracic aortic aneurysm 

rupture prior to surgical intervention, resulting in internal 

bleeding, there is a significant chance the individual will die 

before even receiving medical treatment.” (McCann SOF at ¶ 2; 

accord Hartford Response to McCann SOF at ¶ 2.)

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Coselli and McCann discussed the size and position of the 

aortic aneurysm. Coselli then, among other things, recommended 

that McCann: (1) better manage his blood pressure, with a goal of 

maintaining it between 110/70 and 120/70; (2) exercise “to stay fit 

and . . . to drop some weight”; (3) avoid acts that might elicit 

the Valsalva maneuver;5 and (4) improve his overall coronary health 

by losing weight and taking Lipitor, a drug related to cholesterol. 

(Id. at 671.) Coselli also noted his impression that there was a 

“30% chance” that McCann’s aneurysm would grow to five centimeters, 

and thus require surgical intervention, within ten years. (Id.)

C. McCann’s Application for LTD Benefit Payments

McCann applied to Hartford for LTD benefit payments on or 

about March 14, 2008, claiming an inability to work that manifested 

on March 10, 2008. His application (“the Application”) consisted 

of Hartford-issued forms that he, a Holzer representative, and 

Coselli completed. (See id. at 785-94.) 

Both the Holzer representative and McCann reported in the 

Application that McCann served Holzer as a “Radiologist.” (See id.

at 785 (noting that McCann’s “permanent job on his . . . last day 

 5 “The Valsalva maneuver is a ‘maneuver in which a person 

tries to exhale forcibly with a closed glottis (the windpipe) so 

that no air exits through the mouth or nose as, for example, in 

strenuous coughing, straining during a bowel movement, or lifting a 

heavy weight. The Valsalva maneuver impedes the return of venous 

blood to the heart.” (Hartford SOF at ¶ 11 (citation omitted); 

accord McCann Response to Hartford SOF at ¶ 11.)

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of work” was “Physician - Radiology”), 787 (providing McCann’s “job 

title” as “Radiologist”).) McCann stated that his duties as a 

Radiologist concerned both diagnostic and interventional radiology. 

(See id. at 787.)

Coselli, in an “Attending Physician Statement”, provided both 

primary and secondary diagnoses; he stated that McCann suffered 

primarily from a “Mildly dilated Ascending Aortic Root” and 

secondarily from hypertension and obesity. He noted that McCann 

was, upon physical examination, “asymptomatic . . . with normal 

exam.” (Id. at 793.) He also stated that the suggested treatment 

for McCann’s condition involved “monitoring [the] aorta, aggressive 

BP control, weight loss and exercise, [and] avoid[ing] stress.” 

(Id.)

Coselli noted that McCann’s condition would not limit his 

activities, insofar as those activities involved sitting, standing, 

walking, driving, using a keyboard, or otherwise engaging in 

repetitive hand motions. And McCann noted in the Application that 

he could, despite his condition, independently bathe, dress, use a 

toilet, move from a bed to a chair, maintain a reasonable level of 

personal hygiene, and feed himself. But Coselli suggested that

McCann should refrain from any physical act that might elicit the 

Valsalva maneuver. He also suggested that McCann should avoid 

stress, to avoid increasing his blood pressure.

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Hartford, after reviewing the Application, requested 

additional information from Coselli, concerning the nature of and 

limitations resulting from McCann’s alleged disability. Coselli 

timely responded. He noted that McCann’s aneurysm constituted a 

progressive condition and that McCann, “[b]ecause of his obesity 

status, sleep apnea, male gender, and chronic hypertension . . . is 

at increased risk for aneurysm progression.” (Id. at 652.) He 

also stated that McCann “has [a] low stress tolerance[,] and the 

pressure of his job raises his blood pressure beyond what we would 

recommend to prevent his aneurysm growth.” (Id.)6

Hartford, by letter dated June 27, 2008, informed McCann that 

the Application had been conditionally approved.7 

 6 Coselli authored a related letter on April 3, 2008, 

addressed to Dr. Wayne Munro of Holzer. In that letter, Coselli 

described McCann’s aneurysm, and noted that: (1) McCann had 

hypertension and sleep apnea; (2) both the hypertension and sleep 

apnea placed McCann “into a high risk population for risk of 

further dilation of his aorta”; (3) Coselli had recommended that 

McCann, “to improve his overall functional capacity,” “maintain 

tight blood pressure control,” lose weight, and exercise; and (4) 

Coselli had instructed McCann “to have follow-up CTA’s [sic] every 

6 months to monitor his aorta, and [to] avoid stressful situations 

that could cause increases in his blood pressure.” (A.R. at 649.) 

Coselli also expressed his opinion that “it would be best if 

[McCann were] classified as fully disabled permanently, effective 

March 10, 2008.” (Id.)

7 The condition was removed shortly thereafter and, in any 

case, does not bear on the Court’s resolution of the motions. 

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D. McCann’s Medical Records, Post-Application 

It appears that Hartford, pursuant to the Policy, continued to 

monitor McCann’s health after approving the Application.8 To that 

end, McCann submitted to another CT scan on September 29, 2008. 

The resulting report stated that “[t]here [was] minimal dilatation 

of the ascending aorta with widest AP diameter of around 4.5 cm, 

which is noted and unchanged since 1/9/08.” (Id. at 587.) 

Coselli, after reviewing that report, wrote that he was “pleased to 

see that there appears to be no significant change from the 

previous study.” (Id. at 588 (emphasis added).) 

McCann was treated by his primary care physician, Dr. Nabil 

Fahmy, on September 30, 2008. McCann expressed concern at that 

visit about the aneurysm but generally appeared asymptomatic. 

Fahmy noted that McCann “[was] doing well, BP is under less than 

ideal control at home, no chest pain or abdominal pain, no muscle 

cramps, no swelling of the lower extremities, no acute focal neurochanges, no headache.” (Id. at 584.) She also noted that McCann

had questions about a machine used to control his sleep apnea, a 

continuous positive airway pressure (“CPAP”) unit.

 8 The Policy requires an insured to remain Disabled to remain 

eligible for LTD benefit payments. (See A.R. at 866, 868.) 

Accordingly, the Policy thus gives Hartford the right to require 

additional proofs of loss, including examinations by physicians, 

vocational experts, and functional experts. (See id. at 872.)

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Fahmy discussed diet and exercise with McCann, and advised him 

to moderate salt intake. She modified a prescription relating to 

his blood pressure, and noted as much in his chart. But she did 

not suggest or otherwise comment on any functional limitations 

relating to his condition.

Approximately six months lapsed before the creation of the 

next noteworthy record. On April 1, 2009, McCann completed a 

Hartford-issued claimant questionnaire concerning his condition and 

functionality. He noted on that form that he had not experienced a 

change in condition in the preceding eighteen months, and that he 

did not require assistance with his daily activities.9

 

It appears that McCann also asked Coselli to complete and 

submit a new Attending Physician Statement. (See id. at 32.) On 

April 22, 2009, “Jodi”, a representative from Coselli’s office, 

called Hartford and notified the insurer that Coselli had received 

those forms from McCann. She stated, however, that Coselli was 

reluctant to complete those forms because Coselli, who only treated 

McCann once, on January 30, 2008, had no knowledge of McCann’s

current functional capabilities. (See id.) 

 9 McCann specifically reported that he continued to 

independently bathe, dress, use a toilet, move from a bed to a

chair, maintain a reasonable level of personal hygiene, and feed 

himself. He also reported that he read, watched television, and 

walked without assistance. (See A.R. at 569.)

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Coselli, at Hartford’s suggestion, completed the Attending 

Physician Statement based on his knowledge of McCann’s current 

condition and functional capabilities, and submitted it to Hartford 

on April 23, 2009. But, as foreshadowed by the comments made by 

“Jodi”, Coselli lacked knowledge of and did not evaluate McCann’s 

functional capacity. He instead reiterated that he had not seen or 

treated McCann since January 30, 2008, and suggested that “patient 

should be referred for functional testing.” (Id. at 567.) 

Hartford, based on Coselli’s recommendation, began working to 

schedule a two-day functional capacity evaluation (“FCE”). In the 

interim, McCann submitted to an echocardiogram and a third CT scan. 

The report subsequently generated on August 9, 2009 demonstrated 

that the diameter of the aneurysm then measured approximately 4.3 

centimeters. 

Coselli met and examined McCann, and reviewed that report, on 

September 9, 2009. Later, to recap their meeting, he wrote a 

letter to McCann, stating:

I am pleased to note that your aortic aneurysm has . . .

only minimal[ly] increase[d] in size . . . from 4.0 cm 

to the current 4.3 cm . . . .

Because of these findings and as previously discussed, 

medical management is the recommended course of 

treatment for you at this time. That includes:

- Scheduled monitoring with CT scan and 

Echocardiogram . . . . We are happy to review and 

consult on these reports.

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- Hypertension management which includes avoidance 

of extremes of heavy lifting and activity; your 

blood pressure has been high for your past two 

office visits and for the Echo, ranging from 138/91 

to 161/96. This needs consistently to be around 

120/70.

- Medical management of your Obstructive sleep 

apnea.

- Weight loss in that it has an adverse effect on 

the other three above medical conditions. Adoption 

of a healthier lifestyle by diet and exercise may 

well make the difference in the need to ever have 

surgical intervention on your aorta.

(Id. at 312.) Coselli also stated:

As in the original letters to [Holzer], your disability 

classification remains unchanged. Our Office, though 

happy to monitor your aortic studies, is not a medical 

practice, but surgical. We ask that you consult your 

primary care physician to coordinate and manage your 

care on the above four issues and others as becomes 

necessary.

(Id.)

Dr. David Lombardi, McCann’s primary care physician, wrote a 

one-paragraph letter addressing McCann’s disability status on 

December 17, 2009, addressed “[t]o whom it may concern.” (Id. at 

313.) Lombardi stated that he reviewed Coselli’s reports and 

letters, and, based on Coselli’s findings, agreed that McCann 

should be classified as fully and permanently disabled. He does 

not state, and it is thus unclear, whether he either examined 

McCann or reviewed any other medical records, including the 

independent medical examination discussed in the next section.

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E. The Independent Medical Examination

Hartford was unable to schedule the FCE, and instead scheduled 

an independent medical examination (“IME”).10 The IME was 

conducted on October 30, 2009, by board-certified cardiologist Dr. 

Jeffrey Kramer. Kramer, following the IME, submitted a report to 

Hartford.

Kramer based the IME report on both his: (1) examination of 

McCann; and (2) review of the records supplied by Hartford. Those 

records included: (1) an echocardiogram from April of 2007, which 

showed that the diameter of the aneurysm was 3.71 centimeters; (2) 

the 1-9-08 CT scan report, which showed that the diameter of the 

aneurysm was as large as 4 centimeters; (3) the 4-3-08 letter 

written by Coselli, recommending that McCann be considered totally 

and permanently disabled; and (4) the 9-29-08 CT scan report, which 

showed that the diameter of the aneurysm was approximately 4.5

centimeters. (See id. at 483.) Kramer did not review or consider 

the 8-9-09 report, which showed that the aneurysm measured 4.3 

centimeters. (See McCann SOF at ¶ 60. But see Hartford Response 

to McCann SOF at ¶ 60 (“Undisputed. [But b]y way of further 

answer, Dr. Kramer in formulating his opinion was aware that 

Plaintiff’s aneurysm was anywhere from 3.7 to 4.5 centimeters.”).)

 10 Because the Court need not further reference the FCE to 

resolve the motions, the facts underlying Hartford’s inability to 

schedule the FCE -- whether undisputed or not -- are immaterial.

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Kramer, like Coselli, reported that there had been “no 

significant change” in the size of the aneurysm since April of 

2007. (Id. at 483.) He also reported that McCann was 

asymptomatic, having “never been troubled by chest pain, symptoms 

of congestive heart failure, palpitations, lightheadedness or 

syncope.” (Id. at 482.) Kramer noted that McCann’s blood pressure 

during the 10-30-09 exam was 120/70, and that McCann represented 

that he maintained the same blood pressure at home. 

Kramer ultimately concluded that McCann was not disabled, 

explaining:

I do note that Dr. Joseph Coselli has recommended 

that Dr. McCann be classified as fully and permanently 

disabled.

With respect to Dr. Coselli’s expertise in this 

field, I must nevertheless state that I do not see the 

need to consider Dr. McCann fully and permanently 

disabled based on his stable mild aneurysmal dilatation 

of the ascending aorta. I would certainly agree with 

Dr. Coselli’s recommendations that tight blood pressure 

control would be warranted, but there are certainly no 

formal guidelines to support disability in this 

situation. I certainly have no reason to believe that 

functioning as a radiologist would increase the risk of 

progressive aneurysmal dilatation or clinically 

important problems.

In the absence of formal guidelines, a definitive 

statement cannot be made but I would reiterate that my 

clinical judgement [sic] would not support the need for 

disability in this circumstance.

(Id. at 482-83.)

Kramer, following the IME, also completed a Hartford-issued 

“Physical Capacities Evaluation Form” (“PCE”). (See id. at 482-

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83.) As demonstrated in the PCE, Kramer placed no restrictions on 

McCann’s ability to sit, stand, or walk in a general workplace 

environment.11 He also noted that McCann could constantly (i.e., 

between 68% and 100% of the time) drive, kneel, crouch, balance, 

exercise gross motor skills (e.g., gripping, holding, and 

grasping), exercise fine motor skills (e.g., fingering), and lift 

objects weighing up to ten pounds.

Hartford forwarded the IME report and PCE to Coselli on 

December 14, 2009. Coselli did not respond.

F. The Termination of McCann’s LTD Benefit Payments

Hartford, during its ongoing review of McCann’s claim and the 

related medical documentation, determined that McCann did not meet 

the Policy definition of “Disability” beyond February 4, 2010. The 

insurer notified McCann of the decision to terminate his benefit 

payments in a letter dated February 9, 2010 (“the Termination 

Letter”). There, Hartford set forth the bases for its conclusion, 

including, inter alia: (1) Coselli’s records from April of 2007 

through November of 2008; (2) Fahmy’s records; and (3) the IME 

Report and PCE. 

 11 Kramer originally stated that McCann could sit for three 

hours per day, stand for three hours per day, and walk for two 

hours per day. He later amended his report, stating that “[t]here 

are no restrictions placed, no limitations on activities of any 

type for sit/stand/walk (i.e., may sit/stand/walk 24°/day)[.]” 

(A.R. at 487 (emphasis in original).)

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Hartford noted the progression of McCann’s hypertension, as 

demonstrated by the IME report. As recited in the Termination 

Letter, the IME report showed Kramer’s: (1) observation that 

McCann’s blood pressure was 120/70; (2) observation that McCann 

could maintain that blood pressure at home; (3) conclusion that 

functioning as a radiologist would not increase McCann’s risk of 

progressive aneurysmal dilatation or clinically important problems; 

and (4) conclusion that McCann was not Disabled. (See id. at 474-

75.) Hartford also noted that Kramer completed the PCE, set forth 

the results of that evaluation, and noted that Coselli had an 

opportunity but failed to indicate disagreement with either the IME 

report or the PCE.

Hartford further stated:

The Dictionary of Occupational Titles classifies 

the demands of a Radiologist as light. The Department 

of Labor defines light work as: Exerting up to 20 pounds 

of force occasionally, and/or 10 pounds of force 

frequently, and/or a negligible amount of force 

constantly (Constantly: activity of condition exists 2/3 

or more of the time) to move objects. . . . Even though 

the weight lifted may be only a negligible amount, a job 

should be rated Light Work: (1) when it requires walking 

or standing to a significant degree; or (2) when it 

requires sitting most of the time but entails pushing 

and/or pulling of arm or leg controls; and/or (3) when 

the job requires working at a production rate pace 

entailing the constant pushing and/or pulling of 

materials even though the weight of those materials is 

negligible. . . .

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(Id. at 475.) Hartford concluded from the medical evidence of 

record, the functional evaluations of record, and “the demands of a 

Radiologist”, as that term is construed by the Dictionary of 

Occupational Titles and the Department of Labor, that McCann was 

able to perform the “Essential Duties of his Occupation as a 

Radiologist” effective February 5, 2010. 

The Termination Letter concluded by notifying McCann of his 

right to appeal the termination of his LTD benefit payments “and 

[to] receive a full and fair review.” (Id. at 476.)

G. Post-Termination Medical Evaluations

McCann consulted Dr. Chandra Madala, a board-certified 

cardiologist, on June 14, 2010. Madala thereafter wrote a one-page 

letter, summarizing her findings that McCann’s medical history was 

“significant for an ascending aortic aneurysm, sleep apnea and 

hypertension.” (Id. at 221.)

Madala expressed concern that the aneurysm increased in size 

from 4 to 4.3 centimeters “despite avoiding the high stress level 

and demanding physical requirements associated with working as an 

interventional radiologist.” (Id.) But Madala did not recognize 

that the aneurysm had most recently decreased in size, to 4.3 

centimeters. She also failed to support or otherwise explain her 

findings that working as an interventional radiologist involved 

demanding physical requirements and high stress levels.

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Madala noted that McCann had a history of hypertension, which 

“appear[ed] better controlled since becoming disabled in March 

2008”. (Id.) She also noted that McCann suffered from sleep 

apnea, and that he reported difficulty sleeping and significant 

daytime fatigue. She opined without explanation that “the 

combination of sleep apnea, hypertension and stress place[d McCann] 

in a high risk category for premature accelerated enlargement of 

the aneurysm”, and recommended ongoing blood pressure control and 

lifestyle modification. (Id.) She noted that it was “[o]f 

particular importance to avoid stress.” (Id.)

Madala, near the end of the letter, reported that she 

“reviewed and agree[d] with Dr. Coselli’s letter to Holzer Clinic 

dated September 2008.” (Id.) She agreed “with his recommendation 

that you are fully and permanently disabled.” (Id.) However, it 

appears from the letter that Madala did not review other pertinent 

medical records, including the report and evaluation prepared by 

Kramer.

Dr. Howard Linder of Holzer also wrote a letter on June 14, 

2010, addressing McCann’s sleep apnea. Linder noted that McCann 

requested the letter, as “his sleep apnea . . . complicates his 

hypertension which is a continuing risk factor for possible 

rupturing [of] his aneurysm.” (Id. at 217.) Linder reported both 

that McCann’s sleep apnea “was adequately treated with CPAP” and 

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that CPAP treatment represented “our best prescription”. He noted, 

however, that “[t]reatment with CPAP . . . helps but does not 

eliminate the risk factor of contributing to [McCann’s] 

hypertension.” (Id.) 

H. The Appeal

McCann timely sent Hartford his appeal from its decision to 

terminate his LTD benefit payments on July 26, 2010 (“the Appeal”). 

The appeal was an administrative proceeding resolved by Hartford.

McCann raised several arguments on appeal.12 First, he argued

that Hartford erred by classifying him as a Radiologist rather than 

as an Interventional Radiologist, “a recognized sub-specialty 

described by the American Board of Medical Specialties and a 

distinctly different area of practice from a general radiologist.” 

(Id. at 173-74.) Per McCann, the practice of interventional 

radiology significantly differs from the practice of general 

radiology because interventional radiologists, unlike radiologists,

perform invasive procedures. 

To support this argument, McCann submitted documentation from 

Dr. Philip Long, the Vice Chairman of the Holzer Department of 

Radiology. Long detailed McCann’s typical workweek, averring that 

McCann typically spent twenty-eight hours on diagnostic radiology, 

twenty hours on interventional radiology, one hour on fluoroscopy, 

 12 The Court here recites only those arguments deemed 

pertinent to the Court’s discussion of the history of the action.

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and one or two hours on reports and paperwork. Long also averred 

that McCann typically worked for approximately ten hours on nights 

and weekends. Long approximated that McCann, in a typical workday, 

would stand for between three and five hours, sit for between three 

and five hours, and walk for between one and three hours. He also 

reported that McCann frequently typed, grasped items, and 

manipulated items, and occasionally bent, reached up, and drove a 

motor vehicle.

McCann also argued that Hartford failed to properly credit 

Coselli’s prediction that there was a likelihood -- specifically, a 

thirty percent chance -- that his aneurysm would require surgical 

interventional within ten years. He alleged that “[a]lthough it 

does not expressly appear in [Coselli’s] report . . . Dr. Coselli 

discussed Dr. McCann’s occupational stresses as an Interventional 

Radiologist, and he recommended that continuing as an IR was a 

serious danger to his health.” (Id. at 178.)

McCann also argued that Hartford improperly credited the IME 

report. This argument rested on three bases. First, he argued 

that Kramer was not properly credentialed to issue the report 

because he, unlike Coselli, was not a cardiothoracic surgeon. 

Second, he argued that Kramer did not have, request, or review the 

8-9-09 CT scan report, which demonstrated that the aneurysm grew 

from 4 to 4.3 centimeters. Third, he argued that Kramer was not 

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aware of the nature of and stresses inherent in his Occupation, 

i.e., interventional radiology. 

I. Post-Appeal Medical and Functional Evaluations

Hartford, upon receipt of the appeal, sought independent 

medical input from Dr. Andrew Filderman and Dr. William Bachman. 

Filderman was board-certified in pulmonary medicine. Bachman was 

a board-certified cardiologist.

Filderman reviewed medical records provided by Hartford, and 

issued a report focusing on McCann’s sleep apnea. The records 

that Filderman reviewed were authored or summarized by Linder, who 

oversaw sleep studies on December 18, 2006, January 25, 2007, and 

March 2, 2009. Filderman also reviewed the 6-14-10 letter authored 

by Linder. After completing that review, he noted that McCann: (1) 

was diagnosed with obstructive sleep apnea in 2006; (2) used a CPAP 

unit to treat his condition; and (3) had the CPAP unit adjusted in 

2007 and 2009, to ensure that he received the proper treatment. 

But Filderman also noted that the most recent documentation in the 

record, the 6-14-10 letter authored by Linder, “does not mention 

how the claimant was tolerating CPAP or whether any further 

evaluation of oxygen levels or residual daytime sleepiness has been 

done. No further records regarding sleep issues are available for 

review.” (Id. at 401.)

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Filderman could not speak with Linder about McCann’s condition 

because Linder had retired from practice. Filderman thus spoke 

with Lombardi, who indicated that he saw McCann only once, and had 

no knowledge of McCann’s sleep issues or conditions, except to note 

that McCann used a CPAP unit. Filderman shared this information 

with Bachman.

Bachman, like Filderman, based his review exclusively on 

records provided by Hartford. His task, as he stated in the 

report, was: (1) “to define [McCann’s] functional limitations for 

full time consistent work for the period 2/5/10 onward and at what 

level[, i.e.,] heavy/medium/light/sedentary”; and (2) “to show the 

specific restrictions/limitations and address limitations[ & ] 

restrictions from high levels of stress associated with [McCann’s] 

occupation.” (Id. at 388.) 

Bachman recognized that McCann worked as an Interventional 

Radiologist. (Id. at 392 (“The claimant’s position/title was 

Interventional Radiologist[.]”).) Bachman reported that McCann:

spent 20 hours each week performing biopsies, drainages, 

angiograms, angioplasties, stent placements, and other 

invasive procedures, which were done in a standing 

position wearing a lead apron. He also . . . spent 28 

hours a week doing diagnostic radiology, which included 

interpreting x-rays, CAT scans, MRIs, ultrasounds, in a 

sitting position in front of a view box or computer 

monitor. He also . . . performed fluoroscopy one hour 

each week in a standing position wearing a lead apron. 

He also . . . spent 10 hours each week doing night and 

weekend call[,] reading CAT scans and ultrasounds, and 

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other activities, as described above, during the day 

from a computer monitor at night. He also [completed] 

administrative work totally [sic] 1-2 hours mostly on 

the computer each week.

(Id. at 392.) Bachman recognized Long’s recitation of McCann’s 

typical, daily workplace activities. He also recognized that 

Kramer, through the PCE, placed little or no limitation on McCann’s 

daily activities.

Bachman detailed the records that he reviewed, which included 

each of the medical records, reports, and letters discussed above. 

He then detailed his attempts to reach each of McCann’s attending 

physicians. Lombardi, with respect to McCann’s disability status 

and related functional limitations, “deferred fully” to Coselli. 

(Id. at 398.) Bachman attempted to reach Coselli three times, and 

left messages each time, but Coselli did not return those messages. 

Bachman also called Madala, who would not accept his call. Bachman 

reported that a representative from her office instead stated that 

Madala “chose not to discuss the case” because she “had only seen 

the claimant once, and did not feel capable of rendering an opinion 

regarding the claimant’s restrictions and limitations”. (Id.)

Bachman, after reviewing McCann’s medical records and job 

description, and speaking -- to the extent possible -- with 

McCann’s treating physicians, concurred with the treating 

physicians who opined that McCann suffered from hypertension, which 

could place him at higher risk of aneurysm progression. He also 

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concurred that McCann could “slow the progression of his aortic 

aneurysm” by “manag[ing] his blood pressure in a better manner” 

through “tight blood pressure control, diet, and lifestyle 

changes”. (Id.) But Bachman, with respect to occupational stress, 

stated that:

guidelines for management of aortic aneurysms do not 

suggest that avoiding work or any occupation will cause 

slower progression of an aortic aneurysm, nor do they 

recommend cessation of work in order to slow aneurysm 

progression. There is no data that I am aware of that

suggests that increased emotional stress from an 

occupation or day-to-day living increases one’s risk of 

progression of an aortic aneurysm. I do not feel that 

there are any specific restrictions and limitations, 

though I agree that lifting weights heavy enough to 

cause a Valsalva maneuver is not recommended for anyone 

of the claimant's age, regardless of whether they do or 

do not have an ascending aortic aneurysm. There are no 

limitations or restrictions from high levels of stress

associated with the occupation, as there are no ways to 

measure this, and stress is a subjective rather an 

objective finding.

(Id. at 398-99.) He thus concluded that McCann was “able to 

perform full-time consistent work for eight hours a day, 40 hours 

per week, for the period 2/5/10 onward, at a light level as per the 

Department of Labor specifications.” (Id. at 398.) 

J. Hartford’s Decision on Appeal 

Hartford upheld the initial decision to terminate McCann’s LTD 

benefit payments on appeal, and notified McCann of the decision by 

letter on October 22, 2010 (“Final Decision”). Hartford stated in 

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the Final Decision that it had reviewed and considered the posttermination materials prepared by Madala and Linder, the reports 

from Filderman and Bachman, and the materials originally entered in 

the administrative record. 

Hartford noted in the Final Decision that Bachman found no 

indication or data supporting Coselli’s contention that avoiding 

work would cause slower progression of McCann’s aneurysm. It also 

noted that his sleep apnea appeared, per Filderman’s report, to be 

successfully treated. It also stated that:

It has been noted that Dr. McCann’s occupation was that 

of an Interventional Radiologist and to supplement his 

interventional work he also did general/diagnostic 

radiology. It was also noted that the occupation of 

Interventional Radiologist included performing 

angiography, angioplasty, embolization, gastrostomy 

tubes, stent placement, etc. The Dictionary of 

Occupational Titles (DOT) notes that the occupation of 

Radiologist is considered a light level occupation. The 

DOT also has described the occupations of surgeons and 

physicians as light level occupations.

Based on review of available documentation in the 

claim file and independent physician reviews, it appears 

that Dr. McCann is functionally capable of performing 

the duties of his own light occupation.

(Id. at 414.) 

The Final Decision concluded by informing McCann of his right 

to commence an action under Section 502(a) of ERISA. This action 

followed.

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III. STANDARD OF REVIEW

A. Motions for Summary Judgment

The Court applies a well-settled standard of review to motions 

for summary judgment. See Fed.R.Civ.P. 56(a); Young v. Am. Int’l 

Life Assurance Co. of N.Y., 357 Fed.Appx. 464, 468 (3d Cir. 2009); 

Nichols v. Verizon Commc’ns, Inc., 78 Fed.Appx. 209, 211 (3d Cir. 

2003). Because both McCann and Hartford rely on the administrative 

record, they present a dispute that is ripe for summary judgment. 

B. Claims for Relief Under Section 502(a) of ERISA

McCann, as the plaintiff in an action commenced pursuant to 

Section 502(a) of ERISA, bears the burden of proving both that he 

is entitled to benefits, and that Hartford’s decision to terminate 

his benefits was arbitrary and capricious. See, e.g., Connor v. 

Sedgwick Claims Mgmt. Servs., Inc., 796 F.Supp.2d 568, 580 (D.N.J.

2011). In this context, the Court “‘sits more as an appellate 

tribunal than as a trial court.’” Gibson v. Hartford Life & 

Accident Ins. Co., No. 06-3814, 2007 WL 1892486, at *5 (E.D. Pa. 

June 29, 2007) (quoting Leahy v. Raytheon Co., 315 F.3d 11, 17–18 

(1st Cir. 2002)). Because Hartford enjoyed discretionary authority 

to determine McCann’s eligibility for benefits, the Court must 

review the administrative record and determine, on the basis of 

that record, whether Hartford’s decision was arbitrary or 

capricious. See Miller v. Am. Airlines, Inc., 632 F.3d 837, 844–45 

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(3d Cir. 2011) (“We review a challenge by a participant to a 

termination of benefits under ERISA § 502(a)(1)(B) under an 

arbitrary and capricious standard where, as here, the plan grants 

the administrator discretionary authority to determine eligibility 

for benefits.”); see also Firestone Tire & Rubber v. Bruch, 489 

U.S. 101, 115 (1989); Fleisher v. Standard Ins. Co., 679 F.3d 116, 

120 (3d Cir. 2012). An administrator’s decision to terminate 

ERISA-governed benefits is arbitrary and capricious only if the 

administrative record demonstrates that the decision was without 

reason, unsupported by substantial evidence, or erroneous as a 

matter of law. See Fleisher, 679 F.3d at 121; Miller, 632 F.3d at 

845; Nichols, 78 Fed.Appx. at 211.13 

Because Hartford enjoyed discretion to determine McCann’s 

eligibility for benefits, it also enjoyed discretionary authority 

to resolve any factual disputes relating to his eligibility. See

Fleisher, 679 F.3d at 122; Nichols, 78 Fed.Appx. at 211-12. The 

Court’s scope of review is, accordingly, quite narrow. See

Doroshow v. Hartford Life & Acc. Ins. Co., 574 F.3d 230, 234 (3d 

Cir. 2009). The Court may not now substitute its judgment for that 

 13 “In the ERISA context, the arbitrary and capricious and 

abuse of discretion standards are essentially identical.” Miller, 

632 F.3d at 845 n.2 (citing Howley v. Mellon Fin. Corp., 625 F.3d 

788, 793 n.6 (3d Cir. 2010)). “Under either articulation of the 

applicable standard, the question for the Court is whether the plan 

administrator’s interpretation of the ERISA plan is reasonable.”

Green v. Equifax Info., LLC, No. 10-244, 2011 WL 4594226 (D.N.J. 

Sept. 30, 2011).

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of the plan administrator. See, e.g., id. Instead, the Court must 

“defer to [the] administrator’s findings of facts when they are 

supported by ‘substantial evidence’, which [is] ‘defined as such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Fleisher, 679 F.3d at 121 (citation 

omitted); see also Nichols, 78 Fed.Appx. at 211. 

The Court’s conclusions under the arbitrary and capricious 

standard rest on the evaluation of several case-specific factors. 

See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008); Miller, 

632 F.3d at 855-56; Loomis v. Life Ins. Co. of N. Am., No. 09-3616, 

2011 WL 2473727, at *3 (E.D. Pa. June 21, 2011). Here, the factors 

brought to the Court’s attention include Hartford’s: (1) reversal 

of position, insofar as it began issuing and later terminated 

McCann’s LTD benefit payments; (2) consideration of all relevant 

diagnoses; (3) consideration of McCann’s ability to perform the

Essential Duties of his Occupation; (4) consideration of postappeal medical evaluations; and (5) role as a plan administrator 

that both funds and evaluates claims. See Miller, 632 F.3d at 845-

48, 853-56 (reviewing case-specific factors); Doroshow, 574 F.3d at 

233-34 (same). (See generally dkt. entry no. 43-1, McCann Br. in 

Supp. at 17-30 (setting forth bases of McCann’s arguments).)

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IV. DISCUSSION

Hartford argues that the Final Decision is supported by 

substantial evidence that demonstrates that McCann is not currently 

Disabled and may perform the Essential Duties of his Occupation. 

McCann disagrees, and argues that Hartford’s decision to terminate 

his LTD benefit payments was arbitrary and capricious. To support 

this general argument, he raises five alleged points of error. 

(See id.) We will consider each argument in turn.

A. Hartford’s Decision is Supported by Substantial Evidence

The Court has thoroughly reviewed the administrative record 

and considered it in its entirety. The Court now concludes that 

the Final Decision is supported by substantial evidence, because a 

reasonable person could accept that evidence as adequate to support 

the conclusion that McCann is not Disabled. See Fleisher, 679 F.3d 

at 121 (citation omitted); see also Nichols, 78 Fed.Appx. at 211. 

McCann argues that Hartford misinterprets the term Disability, 

because, pursuant to the reasoning espoused in the Final Decision, 

“an aortic aneurysm can only become a disabling condition if in 

fact it has ruptured, likely resulting in the individual’s death.” 

(Dkt. entry no. 44, McCann Opp’n Br. at 11.) The Court disagrees. 

Hartford terminated McCann’s LTD benefit payments at least in part 

because McCann failed to provide objective evidence of workplace 

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stress, and the effect of workplace stress on his aneurysm.14 And 

in the absence of such evidence, a reasonable person might accept 

the evidence in the administrative record when concluding that 

McCann is not Disabled, and can perform the Essential Duties of his 

Occupation. Cf. Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 409 

(7th Cir. 2004). “Many persons with serious heart conditions work 

at stressful jobs for years without ill effects. Think of 

President Eisenhower, Vice President Cheney, and Associate Justice 

Stevens.” Id. Further, “[t]he insurer’s decision prevails if it 

has rational support in the record - and, given the views of Drs. 

[Kramer, Filderman, and Bachman], that standard is met, and to 

spare.” Id.; see also Fleisher, 679 F.3d at 122 (noting that broad 

grant of discretionary authority, such as that here enjoyed by 

Hartford, includes the authority to “interpret the plan and make 

findings of fact necessary to determine eligibility”).

B. Hartford’s Reversal of Position

McCann contends that Hartford nonetheless acted in an 

arbitrary and capricious manner because, after initially finding 

that McCann was “Disabled” under the Policy on June 27, 2008, 

Hartford found that McCann, as of February 4, 2010, was not 

Disabled under the Policy. He argues that Hartford’s reversal of 

 14 Such reliance, as demonstrated in Section IV.D.4 of this 

Memorandum Opinion, was proper.

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position was arbitrary and capricious because Hartford, in reaching 

the later determination, relied on improper evidence in the 

administrative record. (See id. at 17-20). Specifically, he 

argues that Hartford inappropriately relied on: (1) the comments 

made by “Jodi” that indicated Coselli’s alleged belief that McCann 

could return to work; and (2) the IME report, which was crafted 

without consideration of the 8-9-09 CT scan and report. The Court 

has considered these arguments and Hartford’s opposition thereto

(see generally dkt. entry no. 45, Hartford Opp’n Br. at 2-7), and 

now, for the reasons that follow, conclude that Hartford’s reversal 

of position was not arbitrary and capricious.

“An administrator’s reversal of its decision to award a 

claimant benefits without receiving any new medical information to 

support this change in position is an irregularity” that weighs in 

favor of finding an abuse of discretion. Miller, 632 F.3d at 848; 

see also Laslavic v. Principal Life Ins. Co., No. 11-684, 2013 WL 

254450, at *11 (W.D. Pa. Jan. 23, 2013); Connor, 796 F.Supp.2d at 

586 (noting that administrator’s “inconsistent treatment” of facts 

should be viewed with “suspicion”). That is not to say that a plan 

administrator cannot, under any circumstances, terminate benefit 

payments. See Miller, 632 F.3d at 849 (recognizing that the

“initial payment of . . . benefits does not operate as an estoppel 

such that [a plan administrator] can never terminate benefits”); 

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Connor, 796 F.Supp.2d at 586. But a plan administrator must base a 

decision to terminate benefit payments on some form of new 

evidence. See Connor, 796 F.Supp.2d at 586; Hoch v. Hartford Life 

& Accident Ins. Co., No. 08-4805, 2009 WL 1162823, at *17 (E.D. Pa. 

Apr. 29, 2009). 

The Court, when determining whether a plan administrator 

improperly terminated benefits, thus “focus[es] on the events that 

occurred between the conclusion that benefits were owing and the 

decision to terminate them.” McOsker v. Paul Revere Life Ins. Co., 

279 F.3d 586, 590 (8th Cir. 2002). The Court must examine the 

administrative record to determine what, if any, new evidence was 

considered by the plan administrator. See, e.g., Miller, 632 F.3d 

at 849; McOsker, 279 F.3d at 590.

The Court has thoroughly reviewed the administrative record 

and, insofar as it concerns the instant arguments, focused on the 

events occurring between June 27, 2008 (when Hartford “conclu[ded] 

that benefits were owing”) and February 4, 2010 (when Hartford 

terminated those benefits”). See McOsker, 279 F.3d at 590. The 

administrative record demonstrates that a Hartford claim 

representative documented a conversation with “Jodi”, an otherwise 

unidentified representative from Coselli’s office, on April 22, 

2009. “Jodi” indicated that Coselli was hesitant to complete an 

Attending Physician Statement, as (1) he had not treated or 

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examined McCann in the preceding fifteen months and (2) he had no 

knowledge of McCann’s functional capabilities. (See A.R. at 32.) 

The administrative record also demonstrates that Coselli 

nonetheless completed an Attending Physician Statement and 

submitted it to Hartford on April 23, 2009 -- the next day. (See

id. at 567.) In that Attending Physician Statement, Coselli stated 

outright that McCann “should be referred for functional testing”. 

(Id.) Hartford thereafter referred McCann to Kramer for the IME. 

The Court acknowledges that Hartford referenced the comments 

made by “Jodi” in the Termination Letter. (See id. at 474.) But 

neither the Termination Letter nor the administrative record, in a 

more general sense, indicate that Hartford in any way relied on 

those comments when terminating McCann’s LTD benefit payments. It 

instead appears that Hartford properly relied on new evidence: the 

IME report generated after Kramer examined McCann and 

reviewed the medical records provided by Hartford. (See id. at 

474, 483-85.) It also appears that the comments made by “Jodi” 

were not the sine qua non of the decision to terminate McCann’s LTD 

benefit payments; even if “Jodi” had not made those comments, 

Coselli’s statements in the Attending Physician Statement would 

have prompted Hartford to schedule the IME and, eventually, to 

terminate McCann’s LTD benefit payments.

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The Court has also thoroughly reviewed the record, insofar as 

it concerns the IME report and the records that Kramer reviewed and 

relied on when crafting that report. McCann argues that Hartford’s 

reversal of position was arbitrary and capricious because Hartford 

relied on the IME report, which was crafted without consideration 

of the 8-9-09 CT scan and report. The Court acknowledges that the 

IME report was crafted without consideration of those materials, 

but concludes that this, standing alone, does not render Hartford’s 

decision arbitrary and capricious. (See generally id. at 482-84.) 

The films and reports that Kramer reviewed demonstrate that 

McCann’s aneurysm grew, over a period of years, from 3.71 to 4.4 

centimeters. (See id. at 483.) The 8-9-09 CT scan demonstrates 

that the aneurysm measured 4.3 centimeters. (See Hartford SOF at ¶ 

47; McCann Response to Hartford SOF at ¶ 47.) Because the 8-9-09 

measurement falls within the range considered by Kramer when 

crafting the IME report, any error associated with Hartford’s 

failure to provide the 8-9-09 CT scan and report was merely 

harmless error.15

 15 Kramer concluded that McCann’s condition, which, as he 

understood it, included a mildly dilated aortic aneurysm measuring 

4.5 centimeters, would not prevent McCann from working. Common 

sense dictates that Kramer would have reached the same conclusion 

had he known that the aneurysm was, in fact, roughly 4.4% smaller.

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C. Hartford’s Consideration of Both the Relevant Diagnoses and 

McCann’s Ability to Perform the Essential Duties of His 

Occupation

McCann contends that Hartford’s decision to terminate his LTD 

benefit payments was arbitrary and capricious because Hartford

failed to consider sleep apnea as part of his Disability. He also 

contends that the termination of his LTD benefit payments was 

arbitrary and capricious because Hartford considered his ability to 

perform the Essential Duties of a Radiologist rather than those of 

an Interventional Radiologist. He supports his contentions both by 

reference to the Termination Letter and the events that precede it. 

(See McCann Br. in Supp. at 21-25.) 

McCann’s arguments are misplaced. This action calls for the 

Court to review Hartford’s final, post-appeal decision, not the 

initial decision to terminate McCann’s LTD benefit payments. See

Funk v. CIGNA Grp. Ins., 648 F.3d 182, 191 n.11 (3d Cir. 2011). As 

explained by the Third Circuit Court of Appeals: 

A plan administrator's final, post-appeal decision 

should be the focus of review. See, e.g., 29 C.F.R. 

§ 2560.503–1(h) (requiring that claimants subject to 

adverse benefit determinations be provided with a 

“reasonable opportunity” to appeal that adverse 

decision); 29 C.F.R. § 2560.503–1(h)(2)(i)–(ii) 

(requiring that claimant be provided appropriate notice 

and an opportunity to submit documentation and evidence 

supporting his or her claim); 29 C.F.R. § 2560.503–

1(h)(2)(iv) & (3)(ii) (requiring that the plan 

administrator's review must “take[ ] into account all 

[additional information] . . . without regard to whether 

such information was submitted or considered in the 

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initial benefit determination,” “not afford deference to 

the initial adverse benefit determination,” and be 

“conducted by an appropriate named fiduciary of the plan 

who is neither the individual who made the adverse 

benefit determination that is the subject of the appeal, 

nor the subordinate of such individual”). To focus 

elsewhere would be inconsistent with ERISA’s exhaustion 

requirement. See LaRue v. DeWolff, Boberg & Assocs., 

Inc., 552 U.S. 248, 258–259, 128 S.Ct. 1020, 169 L.Ed.2d 

847 (2008) (noting that claimants must “exhaust the 

administrative remedies mandated by ERISA § 503, 29 

U.S.C. § 1133, before filing suit under § 

502(a)(1)(B)”); Metropolitan Life Ins. Co. v. Price, 501 

F.3d 271, 280 (3d Cir. 2007) (similar).

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, 

and it may be that questionable aspects of or 

inconsistencies among those pre-final decisions will 

prove significant in determining whether a plan 

administrator abused its discretion. In those 

instances, however, the pre-final decisions ought merely 

to inform a court's review of the final decision. 

Id. (some citations omitted). Here, the Final Decision 

demonstrates that Hartford properly took McCann’s sleep apnea into 

account and, further, considered his functional capabilities 

insofar as they might impact the Essential Duties of his stated 

Occupation, interventional radiology. (See A.R. at 409, 411, 

413-14.)16

 16 The Court notes that both McCann and Holzer informed 

Hartford in the Application that McCann served Holzer as a 

“Radiologist” rather than as an “Interventional Radiologist”. 

(See A.R. at 785, 787.) Nevertheless, it appears that Hartford 

considered all of McCann’s duties, including those relating to 

interventional radiology.

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McCann correctly notes that “questionable aspects . . . of 

pre-final decisions” may be relevant, insofar as they may 

demonstrate that the termination of benefit payments “was not 

product of a reasoned, disinterested fiduciary.” (See dkt. entry 

no. 48, McCann Reply Br. at 4 (quoting Funk, 648 F.3d at 191 n.11; 

Miller, 632 F.3d at 856).) But McCann fails to acknowledge that an 

insured’s status as a “reasoned, disinterested fiduciary” does not 

render it infallible. Here, it appears that Hartford erred by 

failing to initially consider either McCann’s sleep apnea or the 

Essential Duties of his stated Occupation, that McCann noted those 

errors in an administrative appeal, and that Hartford addressed and 

corrected those errors in the Final Decision. (See generally A.R. 

at 169-201, 408-15, 472-78.) It was proper for Hartford to take 

such corrective action. The Final Decision is not, despite 

McCann’s protestations, rendered arbitrary and capricious merely 

because that action did not yield a decision in his favor.

D. Hartford’s Consideration of the Post-Termination Reports 

Prepared by Filderman and Bachman

McCann raises four arguments against Hartford’s consideration 

of the reports prepared by Filderman and Bachman, and contends that 

each argument provides a separate basis for concluding that 

Hartford’s termination of McCann’s LTD benefit payments was 

arbitrary and capricious. (See McCann Br. in Supp. at 26-30.) 

Specifically, he argues that Hartford improperly relied on those 

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reports because: (1) neither Filderman nor Bachman personally 

examined McCann; (2) neither report constituted new evidence; and 

(3) McCann did not have an opportunity to address those reports 

during the administrative review process. (See id. at 26-29.) He 

also argues that Hartford improperly imposed a new requirement --

the burden of providing objective medical evidence of the impact of 

workplace stress on his alleged Disability -- that was not 

expressed in the Policy. (See id. at 29.) 

1. It is Irrelevant that Neither Filderman Nor Bachman Examined

McCann 

McCann first argues that Hartford improperly relied on the 

reports generated by Filderman and Bachman because neither of those 

physicians personally examined McCann. The Court has concluded, 

however, that this argument lacks merit. Both the Third Circuit 

Court of Appeals and district courts therein have concluded that a 

plan administrator that enjoys discretionary authority to determine 

eligibility for benefits may (1) rely on the opinions of nontreating physicians and, (2) accord those opinions greater weight 

than the opinions of treating physicians. See Nichols, 78 

Fed.Appx. at 211-12 (“[A]dministrators of ERISA plans are not 

obligated to accord special deference to the opinion of a 

claimant’s treating physician. [An administrator] is therefore

justified in placing reliance on the opinions of its own consulting 

doctors and need not provide a special explanation of its decision 

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to do so.”); Hoch, 2009 WL 1162823, at *14; Forchic v. Lippincott, 

Jacobs & Gruder, No. 98-5423, 1999 U.S. Dist. LEXIS 21419, at *44 

(D.N.J. Nov. 29, 1999) (“[I]t is not improper to rely on the 

opinions of nonexamining physicians who had before them the entire 

record of medical evidence, more evidence than was available to any 

one doctor who saw plaintiff previously. . . . That these doctors 

worked for defendant might cause this Court to give their opinions 

less weight, but defendant was entitled to rely upon them.”), 

aff’d, 262 F.3d 403 (3d Cir. 2001). 

2. It is Irrelevant That Neither Report Constituted New Evidence

McCann next argues that Hartford erred by relying on the 

reports generated by Filderman and Bachman because neither report 

constituted new evidence. This argument rests exclusively on 

Connor v. Sedgwick, supra. The Connor court reversed a plan 

administrator’s termination of benefits after determining, inter

alia, that the initial termination of such benefits did not rest on 

new evidence, i.e., evidence that arose “between the conclusion 

that benefits were owing . . . and the decision to terminate them.” 

796 F.Supp.2d at 586 (quoting McOsker, 279 F.3d at 590). 

It appears that other portions of this Memorandum Opinion have 

rendered the instant argument moot. The Court earlier determined 

that Hartford properly relied on new evidence -- i.e., the IME 

report and the PCE -- when terminating McCann’s LTD benefit 

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payments. Accordingly, even if the Court reached the merits of 

this argument and ultimately concluded that McCann was correct, the 

Court would necessarily conclude that Hartford nonetheless 

terminated McCann’s LTD benefit payments only after crediting 

evidence that arose between the initial grant of such payments and 

the issuance of the Final Decision.

3. McCann Did Not Have a Right to Review, Rebut, or Otherwise 

Address the Reports Before Resolving the Administrative Appeal

McCann also argues that Hartford denied him a full and fair 

administrative appeal because it relied on the reports generated by 

Filderman and Bachman before disclosing those reports to McCann. 

McCann argues that he should have had an opportunity to review, 

rebut, or otherwise address those reports before Hartford resolved 

the administrative appeal.

The Court has carefully and thoroughly reviewed the reports

generated by Filderman and Bachman, and now finds as a matter of 

fact that both reports merely: (1) analyzed evidence already known 

to McCann; and (2) contained no new factual information or novel 

diagnoses. The Court accordingly concludes as a matter of law that 

McCann did not have the right to review, rebut, or otherwise 

respond to those reports prior to the resolution of the 

administrative appeal. See Shedrick v. Marriott Int’l, Inc., No. 

12-30299, 2012 WL 6199987, at *7 (5th Cir. Dec. 12, 2012); Pettaway 

v. Teachers Inc. & Annuity Ass’n of Am., 644 F.3d 427, 436 (D.C. 

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Cir. 2011); Midgett v. Wash. Grp. Int’l Long Term Disability Plan, 

561 F.3d 887, 895 (8th Cir. 2009); Metzger v. Unum Life Ins. Co., 

476 F.3d 1161, 1166-67 (10th Cir. 2007) (“Permitting a claimant to 

receive and rebut medical opinion reports generated in the course 

of an administrative appeal - even when those reports contain no 

new factual information and deny benefits on the same basis as the 

initial decision - would set up an unnecessary cycle of submission, 

review, re-submission, and re-review. This would undoubtedly 

prolong the appeal process[.]”); Tyson v. Pitney Bowes Long-Term 

Disability Plan, No. 07-3105, 2009 WL 2488161, at *4 (D.N.J. Aug. 

11, 2009) (“A plan administrator is not obligated to provide a 

claimant with access to review[ appeal]-level medical reports prior 

to a final decision provided that the reports only analyze evidence 

that was already known to the claimant and contain no new factual 

information or novel diagnoses.”); Kao v. Aetna Life Ins. Co., 647 

F.Supp.2d 397, 417-19 (D.N.J. 2009) (“[T]he text of the governing 

regulatory provisions-and the policies underlying those provisionsdo not contemplate that a claimant will be afforded the opportunity 

to review and rebut physicians’ reports developed during an 

administrative appeal.”).17

 17 The Kao court distinguished this line of cases from the 

decision in Grossmuller v. Int’l Union, United Auto. Aerospace & 

Agric. Implement Workers of Am., UAW, Local 813, 715 F.2d 853 (3d 

Cir. 1983). See 647 F.Supp.2d at 419 n.31. The Court finds the 

Kao court’s reasoning persuasive, and adopts and applies it here.

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4. Hartford Did Not Improperly Impose Requirements Beyond Those 

Imposed By the Plan

McCann argues that Hartford denied him a full and fair 

administrative appeal when it relied on the report generated by 

Bachman, insofar as that report noted the lack of objective 

evidence of the effect of stress on McCann’s condition. The Court 

disagrees. “Because a reasonable person could find . . . objective 

evidence helpful in establishing a standard measurement of the 

extent or severity of a claimant’s symptoms and disability . . . 

requiring such evidence was not arbitrary and capricious.” Connor, 

796 F.Supp.2d 568 (quoting Kao, 647 F.Supp.2d at 413); accord

Nichols, 78 Fed.Appx. at 212 (“The record reveals that the denial 

of [Plaintiff’s] claim was based on any number of factors, 

including the lack of objective tests demonstrating the existence 

of her symptoms, something a claimant . . . might reasonably be 

asked to provide.” (emphasis in original)).

E. Hartford’s Structural Conflict of Interest

In a situation where “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 ‘facto[r] in 

determining whether there is an abuse of discretion.’” Firestone,

489 U.S. at 115 (internal citation omitted). In Glenn, the Supreme 

Court held that a conflict emerges where a plan administrator “both 

funds the plan and evaluates the claims” because “[i]n such a 

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circumstance, ‘every dollar provided in benefits is a dollar spent 

by . . . the [administrator]; and every dollar saved . . . is a 

dollar in [the administrator’s] pocket.’” 554 U.S. at 112 

(internal citation omitted).

It appears that Hartford may operate under such a conflict of 

interest. See Glenn, 554 U.S. at 112; Firestone, 489 U.S. at 115. 

But see Fortune v. Grp. Long Term Disability Plan for Employees of 

KeySpan Corp., 637 F.Supp.2d 132, 144 (E.D.N.Y. 2009) (finding that 

Hartford “effectively ‘walled-off’ claims examiners from the 

company’s finance department by ensuring that an examiner’s 

compensation is not determined by reference to his or her record in 

denying claims”). 

V. CONCLUSION

The Court, as noted above, must determine the lawfulness of 

Hartford’s decision on appeal by taking into account the several 

case-specific factors discussed above. The Court gives significant 

weight to the conclusion that substantial evidence supports the

Final Decision. The Court also gives significant weight to the 

conclusions that Hartford: (1) did not act improperly by reversing 

position, and terminating McCann’s LTD benefit payments; (2) 

properly considered McCann’s relevant diagnoses; (3) properly 

considered McCann’s Occupation; and (4) properly relied upon the 

reports generated by Filderman and Bachman. See Miller, 632 F.3d 

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837 (demonstrating that such conclusions are entitled to 

“significant weight”). The Court does not accord any weight to 

Hartford’s apparent conflict of interest because it appears that 

any such conflict had no bearing on Hartford’s decision to 

terminate McCann’s LTD benefit payments.18 Viewing these factors 

as a whole, the Court concludes that Hartford’s decision to 

terminate McCann’s LTD benefit payments was the product of reasoned 

decision-making and substantial evidence, and was not arbitrary and 

capricious. 

The Court will, for good cause appearing, enter a separate 

Order and Judgment, granting the Hartford Motion, denying the 

McCann Motion, and entering judgment on Count II of the Complaint 

in Hartford’s favor and against McCann.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: March 18, 2013

 18 The Court would, if giving any weight to the apparent 

conflict of interest, give it only “slight weight”. See Miller, 

632 F.3d at 856. 

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