MALCOLM J. HOWARD, United States District Judge
This matter is before the court on the parties' cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. Both parties responded to these cross motions and this matter is ripe for adjudication.
STATEMENT OF THE CASE
Pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), plaintiff Bridgid Hardison instituted this action against Unum Life Insurance Company ("Unum") to recover long term disability benefits under an ERISA-governed employee welfare plan. Plaintiff contends that Unum wrongfully discontinued her long term disability coverage. Plaintiff also alleges that Unum abused its discretion in denying continuing benefits because of a purported conflict of interest by Unum serving as both insurer and administrator of the employee welfare benefit plan. Unum counters that its denial of benefits is fully supported by the medical record because Ms. Hardison is able to do sedentary work and refuses to do.
As a registered nurse at Pitt County Hospital, plaintiff is covered under a long term disability plan. In December 1997, Unum approved plaintiff for disability benefits based on the diagnosis of plaintiff's treating physician, Dr. Keith Tucci, a specialist in neurosurgery. Plaintiff was injured at work in July 1997 and suffered lower back, hip and shoulder pain. After a course of conservative pain treatment, Dr. Tucci recommended that plaintiff undergo surgery to correct some of her lower back problems. On January 15, 1998, plaintiff underwent a diskectomy, nerve root decompression and lumbar laminectomy. After this invasive surgery, plaintiff was readmitted to the hospital on January 31, 1998, with a severe infection of the surgical wound. She was ultimately discharged on February 26, 1998, with home care monitoring. Plaintiff began physical therapy shortly thereafter. Plaintiff also suffered from a right arm deep thrombosis, which required surgical intervention. This operation was performed by Dr. William Tipton in June 1998. Also, in June 1998, plaintiff attempted to return to work where she was given tasks such as answering the phone and computer work. Dr. Tucci acknowledged that such duties, even though sedentary, would exacerbate her lower back and arm pain. At this time he removed plaintiff from work and recommended that she limit her exertion to physical therapy.
On October 26, 1998, Dr. Tucci released plaintiff to return to sedentary work with many restrictions. Namely, plaintiff was to work only two hours a day. She was not to lift more than ten pounds or "lift, carry, push, pull, or twist." Dr. Tucci also found these restrictions to be permanent. He also stated that her pain medication may affect her ability to concentrate. Even with this recommendation for sedentary work, Dr. Tucci expressed reservations, stating that he thought it would be very difficult for plaintiff to return to work.
After a review of plaintiff's file, by an Unum case manager, benefits were discontinued in March 1999. Unum premised its decision on Dr. Tucci's diagnosis that plaintiff could do sedentary work and therefore, Unum determined that plaintiff did not qualify for long term disability because plaintiff was not disabled under the terms of the policy.
Under the plan, an applicant is disabled when:
— you are limited from performing the material and substantial duties of your regular occupation due to sickness or injury; and
— you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 36 months of payments, you are disabled when UNUM determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
Material and Substantial Duties means duties that:
— are normally required for the performance of your regular occupation; and
— cannot be reasonably omitted or modified.
Recurrent disability means a disability which is:
— caused by a worsening in your condition; and
— due to the same cause(s) as your prior disability for which UNUM made a Long Term Disability payment.
In August 1998, plaintiff applied for social security disability benefits and was denied. However, upon her reapplication in July 1999, she was granted social security disability. Plaintiff appealed Unum's denial in March 1999, July 1999, and October 1999. She was informed by defendant that she had exhausted her administrative remedies. During each of the appellate periods, defendants contacted plaintiff's physicians, Drs. Tucci and Tipton, concerning their current diagnosis, which remained unchanged. However, July 14, 2000, Dr. Tucci wrote the following letter regarding plaintiff's condition:
To Whom It May Concern,
Bridgid Hardison cannot be gainfully employed in any occupation since September 1998.
COURT'S DISCUSSION
I. Standard of Review
Summary judgment is appropriate pursuant to Fed.R.Civ.P. 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)
Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading, see Anderson, 477 U.S. at 248, but "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). As this court has stated, summary judgment is not a vehicle for the court to resolve disputed factual issues. Faircloth v. United States, 837 F. Supp. 123, 125 (E.D.N.C. 1993). Instead, a trial court reviewing a claim at the summary judgment stage should determine whether a genuine issue exists for trial. Anderson, 477 U.S. at 249.
In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the non-moving party. Untited States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment.Anderson, 477 U.S. at 247-48. Accordingly, the court must examine "both the materiality and the genuineness of the alleged fact issues" in ruling on this motion. Faircloth, 837 F. Supp. at 125.
The court must first address the appropriate standard with which to review Unum's denial of benefits under the ERISA plan it administers.See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108-115 (1989); Bailey v. Blue Cross Blue Shield of Virginia, 67 F.3d 53 (4th Cir. 1995). As noted above, the Plan confers "complete discretionary authority" on Unum in the administration of the Plan. Unum argues that its discretion in interpreting the Plan's terms limits this court's review to an "abuse of discretion" standard; while plaintiffs ask for de novo review. The appropriate standard as articulated by the Fourth Circuit states:
When a fiduciary exercises discretion in interpreting a disputed term of the contract where one interpretation will further the financial interests of the fiduciary, we will not act as deferentially as would otherwise be appropriate. Rather, we will review the merits of the interpretation to determine whether it is consistent with an exercise of discretion by a fiduciary acting free of the interests that conflict with those of the beneficiaries. In short, the fiduciary decision will be entitled to some degree of deference, but this deference will be lessened to the degree necessary to neutralize any untoward influence resulting from the conflict.
Doe v. Group Hospitalization Medical Services,
3 F.3d 80, 87 (4
th Cir. 1993). In this case, a conflict of interest clearly exists in that Unum is the administrator of its own plan, therefore the "sliding scale" of review applies. This court may:
substitute its own judgment if it disagrees with the conflicted decisionmaker, even if the decisionmaker's determination is reasonable. However, the court may give latitude to that decisionmaker to demonstrate that its determination was not only reasonable, but appropriate, i.e. that the decision was in the interest of all the participants in the plan. Under the same standard, if the court believes the decision both reasonable and correct, it may simply affirm the decision notwithstanding the conflict.
Klebe v. Mitre Group Health Care Plan,
894 F. Supp. 898 (D. Md. 1995). Under the sliding scale analysis, the ultimate question before this court is whether the plaintiff received a full and fair review.
See 29 U.S.C. § 1133(2) (a claimant under ERISA must receive "a full and fair review by the appropriate named fiduciary of the decision denying the claim"). In making this determination, the court will assess the fiduciary's interpretation of the plan, the totality of claimant's illnesses, the objective medical proof provided by the claimant, the judgments of the treating physicians versus the fiduciary's consulting physician, and the timing of the review with regard to the progression of plaintiff's physical condition.
This court finds that Unum's decision to deny plaintiff long term disability coverage was reasonable based on the medical record. Though plaintiff was limited in her ability to perform her duties as a registered nurse, based on her treating physician's diagnosis, she was able to do sedentary work. Plaintiff's subsequent refusal to do so disqualifies her for long term coverage under the Plan. Furthermore, Unum's administrative representative conducted an appropriate investigation of plaintiff's condition and based its determinations solely upon the diagnosis of Drs. Tucci and Tipton.
Based on the language of the Plan, even though plaintiff is only able to work two hours a day, while taking medications which affect her ability to concentrate, and may also exacerbate her condition by doing so, she does not qualify under the language of the Plan as disabled. Working two hours a day allows her to earn 25% of her monthly indexed earnings which is greater than the 20% cut-off created by the Plan.
Lastly, plaintiff was able to present new evidence concerning her condition. She first presented the June 1999 Social Security finding that she was disabled. She also presented a July 2000 letter signed by her treating physician that she can no longer be gainfully employed. However, plaintiff's subsequent qualification for Social Security disability benefits does not render Unum's decision to deny benefits unreasonable. See Elliot v. Sara Lee Corp., 190 F.3d 601, 607 (4th Cir. 1999). Furthermore, her treating physician provided this court with no objective basis for his changed prognosis. This terse letter does not articulate whether plaintiff's medical condition has deteriorated, prompting this new work limitation, or whether the doctor has reached this different conclusion on new evidence. See Austin v. Continental Casualty Co., No. 1:01-CV-187-C, 2002 U.S. Dist. LEXIS 16654, at *22 (W.D.N.C. 2002) ("While many doctors are willing to sign letters drafted by attorneys that the patient/client is completely disabled, those opinions carry little weight. [. . .] It is a doctor's medical findings, however, that are most helpful in determining what impairments are interfering with a plaintiff's ability to work."). Also, there is no evidence in the administrative record, which this court is bound by, that plaintiff's treating physician reexamined her between October 1998 and the July 2000 letter. Thus, even under the "sliding scale" of deference standard, Unum's decision and procedures in denying plaintiff long term disability coverage were reasonable under the language of the Plan as well as the letter of the law.
CONCLUSION
For the foregoing reasons, the court GRANTS the defendant's motion for summary judgment. The clerk is directed to close this case.