Jay Doroshow v. Hartford Life

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2836
JAY DOROSHOW,
Appellant.
v.
HARTFORD LIFE AND ACCIDENT INSURANCE
COMPANY
On Appeal from the United State District Court
for the Eastern District of Pennsylvania
(D. C. 2-08-cv-00259)
District Judge: Hon. Robert F. Kelly
Argued on February 3, 2009
Before: RENDELL, JORDAN and ROTH, Circuit Judges
Opinion filed: July 30, 2009

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Scott I. Fegley, Esquire (Argued)
Suite 402 A
301 Oxford Valley Road
Makefield Executive Quarters
Yardley, PA 19067
Counsel for Appellant
Brian P. Downey, Esquire (Argued)
Pepper Hamilton, LLP
One Keystone Plaza, Suite 200
North Front and Market Streets
P. O. Box 1181
Harrisburg, PA 17108-1181
Stacey I. Gregory, Esquire
Pepper Hamilton, LLP
18 & Arch Streetsth
3000 Two Logan Square
Philadelphia, PA 19103
Counsel for Appellee
O P I N I O N

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ROTH, Circuit Judge:
Jay Doroshow appeals the District Court order granting
summary judgment in favor of Hartford Life and Accident
Insurance Company. The District Court found that Hartford had
not been arbitrary and capricious in its decision to deny long
term disability benefits to Doroshow under an employee welfare
benefit plan, governed by the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. For
the following reasons, we will affirm that decision.
I. Background
Doroshow was an employee of the CVS Corporation and
participated in its Long Term Disability Income Insurance Plan,
a group benefit plan issued by Hartford. CVS “delegated sole
discretionary authority to Hartford ... to determine [the
participant’s] eligibility for benefits and to interpret the terms
and provisions of the plan and any policy issued in connection
with it.”
Doroshow’s effective date of coverage was July 1, 2006.
Under the plan, long term disability benefits are not payable for
disabilities “caused by, contributed to, or resulting from ... a pre-
existing condition.” A pre-existing condition is one “for which
medical treatment or advice was rendered, prescribed or
recommended within 12 months (3 months for exempt
employees) prior to [the participant’s] effective date of
insurance.” It is undisputed that Doroshow was subject to the
three-month look-back period.

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Doroshow was diagnosed definitively with Amyotropic
Lateral Sclerosis (ALS) on March 15, 2007. On March 16,
2007, Doroshow applied for disability benefits under the
Hartford plan. Hartford denied Doroshow’s claim on August
30, 2007, writing:
Our review of all of the medical information in
your claim file shows that you are claiming
benefits because of symptoms related to motor
neuron disease (MND), which includes
amyotrophic lateral sclerosis (ALS). The medical
records obtained from the office of Dr. Goldstein
indicate that you were treated for this condition on
05/16/2006. ALS was discussed in this OV,
likely due to the type of symptoms you were
experiencing and the family history of this
disease. Intermittent workup and follow up
continued for your reported symptoms until
definitive diagnosis was reached in March 2007.
You were provided advice related to the
possibility of an ALS diagnosis on 05/16/2006,
and the symptoms were certainly a precursor to
the eventual diagnosis of ALS. This treatment
date falls within the 3 month period that ends
before your effective date of LTD coverage. This
information shows that your condition was Pre-
existing.
The office visit with Dr. Arnold Goldstein, M.D.,
Doroshow’s primary care physician, to which Hartford referred
in its denial letter, occurred on May 16, 2006, during the look-

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back period. Hartford’s denial relied on Dr. Goldstein’s office
notes, in which he wrote, “Motor neuron disease. Lumbrosacral
plexitis is the most recent diagnosis. Was not felt to be ALS.”
Hartford determined that during this office visit Dr. Goldstein
had rendered advice pertaining to ALS, thus making Doroshow
ineligible for long-term disability benefits under the pre-existing
condition plan exclusion.
Even prior to the Dr. Goldstein visit during the look-back
period, Doroshow’s medical records indicate he had received
advice and undergone testing related to ALS based on symptoms
he was experiencing and a family history of the disease. On July
25, 2005, Dr. Mark J. Brown, M.D., a neurologist, conducted an
electromyographic (EMG) test on Doroshow. In Dr. Brown’s
notes, he wrote: “1. Chronic active degeneration of right leg,
arm, paraspinal and bulbar muscles with near-normal nerve
conduction studies. These are features of a motor neuron
disease. 2. If the left Babinksi sign is a consistent feature then
he has the ALS form of motor neuron disease.”
Following this test, Doroshow visited Leo McCluskey,
M.D., an ALS specialist, on July 27, 2005. Dr. McClusky wrote
that “Doroshow demonstrates evidence of a lower motor neuron
process affecting his right leg” and that “[h]e has no upper
motor neuron signs.” Accordingly, Dr. McClusky felt that
“[t]hese are features that do not support the diagnosis of
amyotropic lateral sclerosis or a progressive motor neuron
disorder.” Doroshow was under Dr. McClusky’s treatment for
motor neuron disease between April 1, 2000, and June 30, 2006.
Dr. McClusky was ultimately the doctor who diagnosed
Doroshow with ALS on May 15, 2007.

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After he unsuccessfully appealed Hartford’s decision via
its internal administrative procedures, Doroshow filed an action
in the District Court pursuant to 29 U.S.C. § 1132(a)(1)(B). He
claimed that Hartford’s denial was arbitrary and capricious.
Both parties subsequently filed motions for summary judgment.
The District Court determined that Doroshow had not
demonstrated that Hartford’s decision was arbitrary and
capricious and granted judgment for Hartford. Doroshow
appealed.
II. Standard of Review
We have jurisdiction over this appeal under 28 U.S.C. §
1291 and exercise plenary review over the District Court’s
decision to grant summary judgment. Summary judgment is
appropriate when the “pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
III. Discussion
Before addressing the merits of Doroshow’s appeal, we
must first determine what standard of review a trial court must
apply in 29 U.S.C. § 1132(a)(1)(B) actions. In Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court
held that “a denial of benefits challenged under § 1132(a)(1)(B)
is to be reviewed under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of
the plan.” Id. at 115. When the administrator has discretionary

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authority to determine eligibility for benefits, as Hartford did in
this case, the decision must be reviewed under an arbitrary and
capricious standard. Under that standard, “if a benefit plan
gives discretion to an administrator or a 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.’” Id.
Until recently, this Circuit had used a sliding scale
approach to address conflicts of interest and their impact on the
amount of discretion that should be afforded to the decisions of
plan administrators. See Estate of Schwing v. The Lilly Health
Plan, 562 F.3d 522, 525 (3 Cir. 2009). Under the sliding scalerd
approach, “if the level of conflict is slight, most of the
administrator’s deference remains intact, and the court applies
something similar to traditional arbitrary and capricious review;
conversely, if the level of conflict is high, then most of its
discretion is stripped away.” Post v. Harford Ins. Co., 501 F.3d
154, 161 (3d Cir. 2007). In Pinto v. Reliance Std. Life Ins. Co.,
214 F.3d 377 (3d Cir. 2000), we said, “an insurance company
[that] both funds and administers benefits ... is generally acting
under a conflict that warrants a heightened form of the arbitrary
and capricious standard of review.” Id. at 378. Under the
heightened version of this form of review, a court should be
“deferential, but not absolutely deferential” to the administrator.
Id. at 393. The District Court, following Pinto, used a
heightened arbitrary and capricious standard to review
Hartford’s rejection of Doroshow’s claim for benefits because
Hartford both funded the plan and was solely responsible for
determining eligibility under the plan.

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In making its determination, the District Court did not
have the benefit of Metropolitan Life Ins. Co. v. Glenn, 128
S.Ct. 2343 (2008), in which the Supreme Court rejected a
conflict of interest review that requires a heightened arbitrary
and capricious standard. In Glenn, a participant in a long-term
disability insurance plan administered by Metropolitan Life
Insurance Company (MetLife) challenged MetLife’s
determination that she was no longer eligible for benefits
because she was not totally disabled. MetLife both funded the
plan and had discretionary authority to determine the validity of
an employee’s benefits claim, creating the same type of conflict
of interest that we found in Pinto and that we have in this case.
With Glenn, the Court aimed to elucidate its previous
precedent in Firestone that a conflict should be weighed as a
factor in determining whether there is an abuse of discretion.
Glenn, 128 S.Ct. at 2350. In doing so, the Court emphasized
that the existence of a conflict did not change the standard of
review from abuse of discretion to a more searching review. Id.
at 2351. The Court explained that any one factor could act as a
tiebreaker when the other factors are closely balanced. The
greater “the tiebreaking factor’s inherent or case-specific
importance[,]” the less closely the other factors must be
balanced for that tiebreaking factor to be decisive. Glenn, 128
S. Ct. at 2351. The Court provided an example:
The conflict of interest at issue here, for example,
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

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Because the District Court applied the heightened review1
standard, which was more favorable to Doroshow than the new
standard, we find no prejudice in our considering Doroshow’s
appeal using the Glenn standard without remanding.
9
insurance company administrator has a history of
biased claims administration.... It should prove
less important (perhaps to the 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.
The Court in Glenn reiterated its position in Firestone
that a reviewing court should consider the conflict of interest –
but only as one consideration among many. Id. Insofar as
Glenn implicitly overrules and conflicts with our precedent,
requiring courts to apply a heightened arbitrary and capricious
review, we will apply the Glenn abuse of discretion standard
where a conflict of interest exists.
Next we turn to the merits of Doroshow’s appeal in the
context of Glenn. Under a traditional arbitrary and capricious1
review, a court can overturn the decision of the plan
administrator only if it is without reason, unsupported by

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substantial evidence or erroneous as a matter of law. See
Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir.
1993). The scope of this review is narrow, and “the court is not
free to substitute its own judgment for that of the defendants in
determining eligibility for plan benefits.” Id. (internal quotation
marks omitted).
The parties’ dispute centers around Hartford’s
interpretation of the word “advice” in the insurance contract,
which defines a pre-existing condition as “a condition for which
medical treatment or advice was rendered, prescribed or
recommended within 12 months (3 months for exempt
employees) prior to Your effective date of insurance.” Because
the contract provided no definition of advice, the District Court
turned to the ordinary meaning of the term, “an opinion or
recommendation offered as a guide to action.” The Random
House College Dictionary 20 (Laurence Urdang et al. eds.,
1973).
Using this definition, the District Court determined that
Hartford was reasonable in finding that Doroshow received
advice regarding ALS during the look-back period . Hartford,
in rejecting Doroshow’s claim, pointed to the notes of Dr.
Goldstein from an office visit Doroshow had on May 16, 2006,
in which Dr. Goldstein wrote, “Motor neuron disease.
Lumbrosacral plexitis is the most recent diagnosis. Was not felt
to be ALS.” The District Court wrote:
By stating his opinion that the motor neuron
disease afflicting his patient was not ALS but
rather lumbrosacral plexitis, Dr. Goldstein

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rendered an opinion about ALS during the three
months prior to the effective date of coverage.
Advice is a broader concept than treatment, and a
doctor’s conclusion that a patient is not suffering
from a certain condition constitutes an opinion or
recommendation offered as a guide to action.
Doroshow v. Hartford Life & Acc. Ins. Co., 560 F. Supp. 2d 392,
400 (E.D. Pa. 2008).
Though we do not find generally that ruling out a
condition constitutes advice or treatment for that condition, we
find Dr. Goldstein’s notes related to ALS particularly
compelling in the broader context of Doroshow’s entire medical
history. As early as 2005, ALS was considered as a possible
diagnosis for the range of symptoms Doroshow had
experienced. Dr. Brown noted that an EMG performed on
Doroshow showed signs of a motor neuron disease and possibly
ALS. As a result of this test, and Doroshow’s family history of
ALS, Dr. Brown suggested Doroshow see an ALS specialist.
This specialist, Dr. McClusky, found signs of a motor neuron
disease but did not diagnose Doroshow with ALS. Because two
doctors before Dr. Goldstein considered ALS as, at least, a
possible explanation for his symptoms, we find Hartford’s
determination that Doroshow received advice pertaining to ALS
specifically during the look-back period was reasonable.
We note, as the District Court did, that ALS is the most
common form of motor neuron disease. Because of the
inexorable, progressive nature of the disease, it is not surprising
that, when Doroshow first began exhibiting symptoms, the

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Doroshow cites a number of other cases that are not binding2
on this Court; we will not address those since they have no
bearing on how we should rule in this case.
12
doctors did not conclusively determine that he had ALS, but
more generally said only that he had a form of motor neuron
disease. From the record and Doroshow’s family history of
ALS, however, it seems that a diagnosis of ALS was repeatedly
considered after he began showing symptoms of a motor neuron
disease.
Doroshow, in support of his position that the “ruling out”
of a condition cannot constitute advice, cites two of our cases,
McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618 (3d Cir.
2004), and Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d
159 (3d Cir. 2002). In McLeod, an employee was denied long-2
term disability benefits because of the alleged pre-existence of
multiple sclerosis. He had sought treatment during the look-
back period for a variety of non-specific symptoms and was
treated for a host of ailments, but during this period, neither the
employee nor his doctors suspected multiple sclerosis. We
found that Hartford’s denial was arbitrary and capricious and
held that seeking medical care for a symptom of a pre-existing
condition can serve as a basis for denying coverage when there
is some “intent to treat or uncover the particular ailment which
causes that symptom (even absent a timely diagnosis), rather
than some nebulous or unspecified medical problem.” McLeod,
372 F.3d at 628.

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In reaching this result in McLeod, we cited Lawson, in
which we explained the difference between a “suspected
condition without a confirmatory diagnosis” and “a
misdiagnosis or an unsuspected condition manifesting non-
specific symptoms.” Lawson, 301 F.3d at 166. We wrote:
When a patient seeks advice for a sickness with a
specific concern in mind (e.g. a thyroid lump, as
in McWilliams [v. Capital Telecomms. Inc., 986
F. Supp. 920 (M.D. Pa. 1997)], or a breast lump,
as in Bullwinkel [v. New England Mutual Life Ins.
Co., 18 F.3d 429 (7th Cir. 1994)]) or when a
physician recommends treatment with a specific
concern in mind (e.g., a “likely” case of multiple
sclerosis, as in Cury [v. Colonial Life Ins. Co. of
Am., 737 F. Supp. 847 (E.D. Pa. 1990)]), it can be
argued that an intent to seek or provide treatment
or advice “for” a particular disease has been
manifested. But when the patient exhibits only
non-specific symptoms and neither the patient nor
the physician has a particular concern in mind, or
when the patient turns out not to have a suspected
disease, it is awkward at best to suggest that the
patient sought or received treatment for the
disease because there is no connection between
the treatment or advice received and the sickness.
Id. In Lawson, the patient was ultimately diagnosed with
leukemia, but the insurance company based its denial of the
benefits claim on an office visit during the look-back period in
which the patient was treated for a respiratory tract infection. It

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was clear from the record that neither the patient’s doctor or her
parents ever considered leukemia as a possible diagnosis.
Accordingly, we found the patient had not received medical
advice or treatment for leukemia and could not be denied
coverage because of a pre-existing condition. Id.
Doroshow suggests both McLeod and Lawson support his
position that he had not received any advice related to ALS
during the look-back period. The implication from his argument
is that he falls into the category of “a misdiagnosis or an
unsuspected condition manifesting non-specific symptoms,”
which under both McLeod and Lawson would not be
demonstrative of a pre-existing condition. Contrary to
Doroshow’s claims, however, the record plainly demonstrates
otherwise. Based on his family history of ALS and his medical
records, we conclude that it is clear that Doroshow sought
advice for ALS when he visited Dr. Goldstein during the look-
back period. Therefore, he had a “suspected condition without
a confirmatory diagnosis,” which may appropriately be deemed
a pre-existing condition.
IV. Conclusion
For the foregoing reasons, we will affirm the District
Court’s order granting Hartford’s motion for summary
judgment.

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RENDELL, Circuit Judge - dissenting.
Jay Doroshow is entitled to benefits because he was
neither given advice nor treated for ALS, prior to his diagnosis
of that condition in March 2007 – nearly one year after his
doctor had not only diagnosed him with a different condition but
had actually rejected a diagnosis of ALS. The majority’s
conclusion that his doctor’s negative diagnosis of ALS during
the relevant three-month period somehow renders his later-
diagnosed ALS a “pre-existing condition” under Hartford’s
policy rests upon a seriously flawed reading–or total
disregard–of the definition of this phrase provided in the
Hartford policy, as well as two precedents of our court
construing similar policy terms. McLeod v. Hartford Life & Acc.
Ins. Co., 372 F.3d 618 (3d Cir. 2004); Lawson ex rel. Lawson v.
Fortis Ins. Co., 301 F.3d 159 (3d Cir. 2002).
Hartford’s policy defines “pre-existing condition” as “a
condition for which medical treatment or advice was rendered,
prescribed, or recommended within 12 months (3 months for
exempt employees) . . . prior to [the participant’s] effective date
of insurance.” Critically, the policy does not say advice as to the
possibility of ALS, as the Hartford Plan Administrator reasoned;
advice about ALS, as the District Court loosely reasoned; or
advice relating to or pertaining to ALS, as the majority seeks to
paraphrase. Rather, determination of a pre-existing condition
requires provision of advice or treatment for that condition, here

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The parties agree that the “pre-existing condition” from3
which Doroshow suffered was ALS.
16
ALS, in April, May, or June 2006.3
Construing “for” as synonymous with “relating” or
“pertaining” to, the majority disregards not one, but two, binding
precedents of our court interpreting nearly identical policy
language. In Lawson, Elena Lawson was diagnosed, and
received treatment, for an upper respiratory tract infection.
Lawson, 301 F.3d at 161. After her symptoms persisted,
however, doctors diagnosed her with leukemia, and concluded
that her earlier symptoms stemmed from that condition.
Lawson’s insurance policy defined “pre-existing condition” as
a “Sickness, Injury, disease or physical condition for which
medical advice or treatment was recommended by a Physician
or received from a Physician . . . .” Id. Determining that
Lawson’s leukemia was a pre-existing condition, the insurer
denied her claim. Reversing, the District concluded, “[I]n order
to be treated for leukemia, there must have been some awareness
that the disease existed at the time treatment or advice was
rendered.” Id. at 162. We affirmed, holding that the word “for”
“connotes intent.” Id. at 165. We reasoned–quite correctly–that
“it is hard to see how a doctor can provide treatment ‘for’ a
condition without knowing what that condition is . . . .” Id.
Providing advice or treatment for the symptoms of a later-
diagnosed condition, we emphasized, does not constitute
treatment for that condition. In rejecting an expansive definition
of “for,” we explained:

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The majority, indeed, focuses on Doroshow’s medical4
history, including the initial suspicion of one of his doctors –
prior to the three month look-back period – that Doroshow
suffered from ALS. But Hartford’s own definition of
‘pre-existing’ as it applies to Doroshow means during the three
months before July 1, 2006. As discussed below, during that
three-month period Doroshow’s doctor rejected the ALS
diagnosis in favor of a diagnosis of lumbosacral plexitis.
17
Although we base our decision on the language of
the policy, we note that considering treatment for
symptoms of a not-yet-diagnosed condition as
equivalent to treatment of the underlying
condition ultimately diagnosed might open the
door for insurance companies to deny coverage
for any condition the symptoms of which were
treated during the exclusionary period. To permit
such backward-looking reinterpretation of
symptoms to support claims denials would so
greatly expand the definition of preexisting
condition as to make that term meaningless: any
prior symptom not inconsistent with the ultimate
diagnosis would provide a basis for denial.
Id. at 166 (internal citation omitted).
I submit that the majority here has fallen into this very
trap by essentially concluding that, because Doroshow likely had
ALS all along, ALS was a “pre-existing condition.” In so4
reasoning, the majority does a disservice to the policy language,

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to our precedent in Lawson, and to Doroshow himself.
In a subsequent opinion, McLeod, we went even farther
than in Lawson, opining that policy language defining pre-
existing condition as including symptoms for which the claimant
received medical care also implied “some intention on the part
of the physician or of the patient to treat or uncover the
underlying condition which is causing the symptom.” 372 F.3d
at 628. As in Lawson, we distinguished a “suspected condition
without a confirmatory diagnosis” and a “misdiagnosis.” Id. at
628. Although the insurer in McLeod “placed great stock” in
differences in its definition of pre-existing condition and that of
the insurer in Lawson, we concluded that, when policy language
requires that advice be “for” symptoms, “for” requires an
“intent” to treat the symptoms of the ultimately-diagnosed
condition. Accordingly, we reversed the District Court’s
determination that Hartford’s denial of benefits was reasonable.
Today, the majority inexplicably casts these precedents
aside, referring to their dicta without discussing their holdings.
Instead, the majority concludes that Doroshow received advice
for ALS, because ALS was a “suspected condition without a
confirmatory diagnosis.” However, to reach such a conclusion
requires wholesale revision of Dr. Goldstein’s note of May 16,
2006 - the only evidence of diagnosis, treatment, or advice
during the look-back period. The note does not identify ALS as
a suspected condition. To the contrary, Dr. Goldstein indicated,
“Lumbosacral plexitis is the most recent diagnosis. Was not felt
to be ALS.” Doroshow did receive a “confirmatory diagnosis”
and advice - not for ALS, but for lumbosacral plexitis.

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We have no difficulty concluding here, as we did in5
McLeod, that application of the “pre-existing condition”
exclusion to Doroshow’s later-diagnosed condition was
arbitrary and capricious.
19
Jay Doroshow is now suffering from ALS. It was not
diagnosed until March 15, 2007 – ten months after his diagnosis
of lumbosacral plexitis. Hartford’s denial of coverage based on
its view that ALS was a pre-existing condition was arbitrary and
capricious, not only because it contravened the definition of the
term expressly provided in its policy, but also because this court
has twice opined – indeed, once involving Hartford – that “for”
connotes intent and is not synonymous with “related to” or
“regarding.” Accordingly, I would reverse and remand for5
entry of an order requiring that benefits be paid to Jay
Doroshow.

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