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Smith-Emerson v. Liberty Life Assurance Company of Boston

United States District Court, D. New Hampshire

December 9, 2015

Nicole Smith-Emerson
Liberty Life Assurance Company of Boston. Opinion No. 2015 DNH 224


PAUL BARBADORO, District Judge.

Nicole Smith-Emerson sued Liberty Life Assurance Company of Boston ("Liberty") under ยง 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), challenging Liberty's decision to terminate her long-term disability benefits. In April 2015, I denied Smith-Emerson's request for de novo review of Liberty's termination decision, and instead determined that the decision would be judged by the more deferential "arbitrary and capricious" standard of review. Doc. No. 18. Both parties have now filed motions for judgment on the administrative record. For the reasons that follow, I grant Liberty's motion for judgment on the administrative record.


Nicole Smith-Emerson, a 45-year old Concord woman, was struck in the head with a soccer ball in October 2008.[1] Doc. No. 14 at 3. That blow created a host of medical problems for Smith-Emerson that ultimately led her to quit her job, seek disability benefits, and file suit in this court when her benefits were terminated.

From March 2008 until December 2011, Smith-Emerson worked as a loan officer for Citizens Bank in Concord. Her job as a loan officer involved mostly sitting and typing, but also occasional driving, walking and lifting 10 pounds or less. Doc. No. 14 at 1. In an Occupational Analysis Report, vocational rehabilitation counselor Bonnie Huggins characterized Smith-Emerson's occupation as "sedentary" or "light physical demand."[2] Id. at 13.

As a Citizens employee, Smith-Emerson was entitled to disability benefits under the bank's employee benefits policy (the "Plan"), should she become "disabled." Id. at 2. The Plan defined "disabled" to mean "unable to perform the Material and Substantial Duties of [one's] Own Occupation" due to "Injury or Sickness." Id . Liberty funds and administers Citizens' Plan. Id.

In December 2011, due to ongoing neck pain and other complications, Smith-Emerson left her job and filed a claim with Citizens for long-term disability benefits. Id. at 3. Liberty granted her short-term disability benefits until July 2012, when it began paying her long-term disability benefits under a "reservation of rights."[3] Id. at 18.

Between 2011 and 2014, Smith-Emerson saw a myriad of doctors to treat her pain. Neurosurgeon Tung Nguyen performed surgery on Smith-Emerson's neck in October and November 2011, and continued to treat her neck pain over the next two years. See id. at 3-5, 7. On December 8, 2011, Dr. Nguyen signed a "restrictions form" stating that Smith-Emerson was unable to work on a full-time basis. Id. at 4. Soon after, however, on December 20, 2011, Dr. Nguyen signed another form indicating Smith-Emerson could work in a full-time "sedentary" capacity. Id. at 4-5. Four months later, in March 2012, Dr. Nguyen stated that Smith-Emerson would likely need a four-to-six month leave of absence from work due to pain and numbness in her "upper extremity" and the fingers of her left hand. Id. at 7.

Also in March 2012, Smith-Emerson consulted with six more medical professionals: Dr. John Chi, APRN Martha Porfido-Bellisle, Dr. Andrew Jaffe, APRN Steve Arvin, Dr. Matthew Vestal, and Dr. Mildred LaFontaine. Id. at 7-9. At these consultations, Smith-Emerson complained of neck pain and muscle spasms. Id . She also reported tailbone pain. Id. at 8. Dr. Vestal stated that when examined, Smith-Emerson was "[u]nable to flex and extend, pitch, yaw and roll [her] neck" on command but was "easily able to fully range neck" when "distracted by other tasks." Id. at 9. None of these doctors stated whether Smith-Emerson would be capable of working at that time.

In April 2012, Smith-Emerson completed an "Activities Questionnaire" at Liberty's request. She stated that she "spent most of the day in bed... because of pain, " "was able to sit, stand or walk for only less than an hour a day, " and loved to garden but was "unable to do so at this time because of [her] injury." Id. at 10. Also in April 2012, Smith-Emerson again saw Dr. Nguyen, who reported that she "appears quite comfortable, despite verbalizing severe neck pain." Id. at 11. Dr. Nguyen signed a restrictions form indicating that Smith-Emerson could perform light-duty work on a full-time basis. Id. at 12.

Days later, Smith-Emerson received care from chiropractor Melissa Savicky. Id . Smith-Emerson reported to Dr. Savicky that she had not gotten out of bed the previous Saturday due to severe pain. Id . During the appointment, Smith-Emerson apparently went into full-body spasms upon light touch. Id . Despite this, Dr. Savicky signed a restrictions form indicating that Smith-Emerson could perform sedentary work on a full-time basis, with some restrictions. Id.

In May 2012, Smith-Emerson visited Dr. Robert Spencer to address her ongoing complaints of pain. Id. at 13. Dr. Spencer diagnosed Smith-Emerson with "definite" headaches, neck, and back pain, "possible cervical radiculitus, " "possible lumbosacral radiculitus, " and "possible extremity pain." Id. at 13-14.

In May 2012, Liberty hired a private investigative firm, New England Risk Management ("NERM"), to conduct video surveillance of Smith-Emerson. Id. at 15. NERM issued a report indicating that Smith-Emerson was observed on several days in May 2012 "raking grass and dirt in her yard using both hands, bending without restriction, moving quickly without restriction or outward signs of pain, scooping grass and dirt into a trash bag, lifting and carrying the bag, and squatting, " among other outdoor activities. Id.

In June 2012, Smith-Emerson was seen by APRN Kim Keaton, who prescribed pain medication and indicated "no work for now." Id. at 14. Keaton also reported that Smith-Emerson had "chronic neck pain" but appeared to be "well-developed, well-nourished, [and] in no acute distress." Id. at 17.

Also in June 2012, Dr. Philippe Chemaly submitted a report based on his review of Smith-Emerson's medical file. Id. at 15. On June 8, 2012, before receiving NERM's surveillance videos, Dr. Chemaly indicated that Smith-Emerson likely suffered from "cervical radiculitus, " but not "cervical radiculopathy" or "lumbar radiculitus." Id . He also stated that Smith-Emerson's reports of chronic pain and weakness were likely true based on his review of Dr. Nguyen's reports. Id. at 15-16. Dr. Chemaly concluded that, given his review of the medical documentation, Smith-Emerson would be able to "return to work in a sedentary position." Id.

A week later, however, on June 15, 2012, Dr. Chemaly revised his opinion, issuing an addendum to his report that addressed the video surveillance showing Smith-Emerson doing yard work. Id. at 16-17. In his addendum, Dr. Chemaly stated that Smith-Emerson's "ability to lift, squat, bend, stoop, lift, carry, and open and close vehicle doors" was "directly inconsistent" with Smith-Emerson's "reported functional capacity." Id. at 16. In light of the video footage, Dr. Chemaly concluded that Smith-Emerson could work "at minimum in a light duty setting in a permanent eight hour day full time work position." Id.

In July 2012, APRN Keaton stated that, based on her inoffice observations of Smith-Emerson, Keaton did not "disagree with a sedentary position in a full duty work capacity." Id. at 17-18. Keaton also indicated that she would like to continue with pain ...

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