On January 14, 2010, the First Circuit upheld Liberty Life Assurance Company of Boston’s termination of a fibromyalgia claimant’s long term disability benefits based on multiple rounds of surveillance that showed sporadic activities over the course of several days. Although, the Plaintiff argued that such activity was not inconsistent with her position that she was unable to function normally most of the time versus all of the time, the Court noted that it has permitted ERISA plan administrators to rely on this type of “snapshot” evidence in the past. The Court also found that specific activities seen on the surveillance such as bending and kneeling were inconsistent with Plaintiff’s abilities as reported by her physician in a Functional Capacity Form. Even more significant to the Court, however, was that the Plaintiff was observed going to large stores such as Home Depot and Walmart, when she had previously noted that she could not go to malls and limited her shopping to small stores. The court acknowledged that Walmart and Home Depot are not malls, but it held that it was not an abuse of discretion for Liberty to find that the Plaintiff’s ability to navigate large stores contradicted her claim that her fibromyalgia required her to frequent small stores. Cusson v. Liberty
