Denney v. Aetna Life Insurance Company

Filing 17

MEMORANDUM OF DECISION. Signed by Judge James H Hancock on 4/16/2015. (JLC)

FILED
2015 Apr-16 AM 11:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

THOMAS DENNEY,

)

PLAINTIFF,

)

VS.

)

AETNA LIFE INSURANCE CO.,

)

DEFENDANT.

2:14-cv-1519-JHH

)

MEMORANDUM OF DECISION
The court has before it Cross-Motions for Judgment on the Administrative
Record (Docs. # 10 & 12). Pursuant to the court’s December 3, 2014 order (Doc.
#9), the motions were deemed submitted, without oral argument, on March 31, 2015.
After thorough review of the briefs and administrative record, the court concludes
that summary judgment is due to be granted in favor of Defendant Aetna Life
Insurance Company for the reasons explained below.
I. Procedural History
Plaintiff Thomas Denney commenced this action on August 4, 2014 by filing
a Complaint (Doc. #1) in this court against Defendant Aetna Life Insurance
Company. Plaintiff’s Complaint set forth only one cause of action: wrongful denial

of long term disability benefits in violation of the Employee Retirement Income
Security Act of 1974, as amended, (ERISA), 29 U.S.C. §§ 1001, et seq. Defendant
responded with an Answer (Doc. #4) on August 28, 2014. Pursuant to the court’s
initial order (Doc. #7), on December 2, 2014, the parties file a Joint ERISA report and
the administrative record. (Doc. #8.) Defendant filed its Motion (Doc. #10) for
Judgment on the Administrative Record on February 16, 2015, asserting that Aetna’s
determination that its determination that Plaintiff did not satisfy the Plan’s Test of
Disability after twenty-four months of long term disability (LTD) payments was
correct, and not arbitrary and capricious. Plaintiff’s February 17, 2015 Motion (Doc.
#12), however, contends that Aetna’s determination was both erroneous and
unreasonable.
Both parties have filed briefs and jointly submitted the administrative record
in support of their respective positions. Defendant submitted a brief (Doc. #11) and
additional evidence1 (Doc. #13) in support of its motion on February 16 and 19, 2015.
On March 23, 2015, Plaintiff filed a brief (Doc. #152) in opposition to Defendant’s
Motion, and on March 31, 2015, Defendant filed a brief (Doc. #16) in reply. On
February 17, 2015, Plaintiff submitted a brief (Doc. # 12) in support of his own

Defendant submitted the following evidence in addition to the administrative record:
affidavit of Ana Molina with attachments.
1

2

Motion for summary judgment. On March 23, 2015, Defendant filed a brief (Doc. #
14) in opposition to Plaintiffs’s Motion. Although given the opportunity to do so,
Plaintiff did not file a brief in reply to Defendant’s opposition.
II. Findings of Fact
A. The Plan
LTD benefits under the Plan are funded by Group Policy Number GP-881927
(“the Group Policy”) issued by Aetna to Southwest. (Admin. Rec. at 0000l -30.)
The Group Policy confers Aetna with “discretionary authority to: determine whether
and to what extent eligible employees and beneficiaries are entitled to benefits ; and
construe any disputed or doubtful terms under this policy.”

(Admin. Red. at

000028.)
LTD benefits are payable under the Plan to eligible participants who are
“disabled” as defined by Plan booklet-certificate. (Admin. Rec. at 000040.) The
Plan’s “Test of Disability is explained as follows:
Own Occupation Period
From the date that you first become disabled; and until
Monthly Benefits are payable for 24 months; you will be
deemed to be disabled on any day if; solely because of:
disease or injury; either of the following applies to you:
•
•

you are not able to perform the material duties of
your own occupation; or
your earnings from working in your own
3

occupation are 80% or less of: your adjusted
predisability earnings.
***
Any Reasonable Occupation Period
After the first 24 months that any Monthly Benefit is
payable during a period of disability; you will be deemed
to be disabled on any day if; solely because of: disease or
injury; either of the following applies to you:
•
•

you are not able to work at any reasonable
occupation; or
your earnings from working in any occupation are
50% or less of: your adjusted predisability
earnings . . . .

(Id.) (emphasis in original). “Reasonable occupation” is defined by the Plan bookletcertificate as “any gainful activity for which you are; or may become; fitted by:
education; training; or experience.” (Admin. Rec. at 000058.)
B. Plaintiff’s Injury, Resulting Disability and Worker’s Compensation Claim
Plaintiff has a high school education and although he took some college
courses, he never graduated. (Admin. Rec. at 000096.) Plaintiff was employed by
Southwest as a ramp agent, which is considered a heavy duty-strength occupation.2
(Admin. Rec. at 000518- 19.) Plaintiff loaded and unloaded aircraft baggage and
freight, directed and serviced aircraft, and operated various types of machinery. (Id.)
His other work experience includes working as a bartender. (Admin. Rec. at 000181.)
He has limited computer skills and limited typing skills. (Admin. Rec. at 000095 and 0000309.)
2

4

According to Southwest, the occupation required Plaintiff to be able to lift and move
items of 70 pounds or more on a “regular basis”, repetitively lift weights of forty (40)
to fifty (50) pounds on raised surfaces, and to climb, bend, kneel, crawl, and stoop
“on a frequent basis and for extended periods.” (Id.)
On June 1, 2010, Plaintiff reported a lower back and/or groin strain while
loading checked luggage. (Admin. Rec. at 000612-13.) As a result of this on-the-job
injury, Plaintiff was seen by Dr. Mike Mueller at St. Vincent’s Occupational Health
Clinic on June 4, 2010, who referred plaintiff for a lumbar spine MRl. (Admin. Rec.
at 000497-99.) The MRI was performed on June 8, 2010. (Admin. Rec. at 000496.)
A few weeks later, on June 29, 2010, Plaintiff was seen by Dr. Charles H.
Clark, a neurosurgeon at Neurological Associates in Birmingham, Alabama.
(Admin. Rec. at 000250.) Dr. Clark noted that Plaintiff had a work-related injury on
June 4, 2010 and had “episodic pain in the past that resolved with conservative
management.” (Id.) Plaintiff complained of “left hip, groin and posterior lateral
thigh discomfort which is gradually getting worse,” and reported that weight-bearing
and activity greatly exacerbated the pain. (Id.) Dr. Clark noted that a recent MRl,was
suggestive of foraminal disc herniation at L5-Sl. (Id.) He diagnosed plaintiff with a
“herniated lumbar disc L5-S1 left,” and referred plaintiff for a lumbar myelogram.
(Id.)
5

The myelogram was performed on July 14, 2010, and it showed “advanced
degenerative disc changes at L5-Sl with disc space narrowing.” (Admin. Rec. at
000248.) Due to the “severity and persistence” of Plaintiff s pain, Dr. Clark
recommended lumbar fusion surgery and noted that Plaintiff would “remain off work
in the interim.” (Admin. Rec. at 000246.) Plaintiff underwent the surgery on August
26, 2010. (Admin. Rec. at 000509-10.) Dr. Clark recommended that Plaintiff remain
out of work to recover from the surgery, and Plaintiff applied for and received
worker's compensation benefits. (Admin. Rec. at 000241; Admin. Rec. at 000174.)
Approximately three weeks after surgery, on September 15, 2010, Plaintiff
returned to Dr. Clark. Dr. Clark noted that Plaintiff’s surgical wound was “healing
nicely,” but that he still had intermittent hip and thigh pain. (Admin. Rec. at 000241.)
He recommended that Plaintiff stay out of work and return in five weeks. (Id.)
About five weeks later, on October 26, 2010, Plaintiff again was seen by Dr.
Clark. Dr. Clark noted that x-rays indicated the fusion was '”progressing nicely,” and
that although Plaintiff’s back pain was “resolved,” he continued to have “left hip and
leg discomfort.” (Admin. Rec. at 000239.)

Plaintiff was referred for physical

therapy and was instructed to “stay off work.” (Id.)
On December 13, 2010, three and one-half months post-surgery, Dr. Clark
noted that plaintiff had “significant improvement with physical therapy” and could
6

“return to work 12/15/10 on light-duty.” (Admin. Rec. at 000238.) Dr. Clark wanted
Plaintiff to be re-assessed after two months. (Id.) Dr. Clark completed a Workman's
Compensation Status Form stating that Plaintiff could “return to work with
restrictions” of “no prolonged bending, stooping, or climbing.” (Admin. Rec. at
000266.)
Two months later and five and one-half months post-surgery, on February 14,
2011, Plaintiff returned to Dr. Clark. (Admin. Rec. at 000237.) Plaintiff complained
of inability to work due to “increasing back pain [that developed in] the past 3
weeks.” (Id.) Dr. Clark noted that there was "no clear-cut radicular pain,” and
referred Plaintiff for another MRI. (Id.) He noted that if the MRI was negative, he
would obtain a functional capacity evaluation (FCE). (Id.) In the meantime, Dr.
Clark completed a Workman’s Compensation Status Form stating that plaintiff was
“not able to work.” (Admin. Rec. at 000511.)
The MRI was performed on February 17, 2011. (Admin. Rec. at 000512.)
Plaintiff saw Dr. Clark on February 28, 2011, and Dr. Clark noted that the scan
showed no evidence of disc herniation, spinal stenosis or foraminal narrowing.
(Admin. Rec. at 0005l 5.) He commented that the fusion was “progressing nicely and
pedicle screws [were] in excellent position .” (Id.) Dr. Clark “reassured [Plaintiff]
and [made] recommendations regarding exercises and activities,” and referred
7

Plaintiff for a FCE. (Id.) Dr. Clark noted that his likely recommendation would be
a “[return to work] per the FCE.” (Id.)
The FCE was performed on March 8, 2011 at TherapySouth, which measured
Plaintiff s “functional capacity for safe work activity.” (Admin. Rec. at 000193-94.)
Plaintiff made “good effort” during testing and engaged in no “self-limiting
behaviors.” (Id.) Plaintiff s strength capacity fell into the “heavy work category for
lifting, carrying, and push/pull,” and he demonstrated the ability to lift and carry
(from floor to waist) 50-55 pounds occasionally and 25 pounds frequently, and push
and pull up to 65 pounds. (Id.) He was able to stand and sit for 30 minutes each
(with reported difficulty), and walk for 25 minutes. (Id.) Although Plaintiff
demonstrated ability to perform a heavy duty occupation, “based on the job
description provided by [his] employer,” the FCE concluded that Plaintiff was “not
able to perform all of his normal duties” because his occupation required “heavy
lifting and carrying up to 70 pounds; heavy pushing up to 60 pounds; heavy pulling
up to 87 pounds; Constant standing/walking; frequent crawling/ kneeling/ bending/
stooping/ twisting; climbing ladders/stairs/ramps frequently.” (Id.)
Dr. Clark saw Plaintiff about a week later, on March 16, 2011, to review the
FCE results. (Admin. Rec. at 000516.) He released plaintiff to return to work March
21, 2011 “per FCE,” stated that plaintiff would reach maximum medical improvement
8

one year from the date of his surgery, and assigned him a 10% impairment rating.
(Id.) Dr. Clark completed a Workman's Compensation Status Form stating Plaintiff
could “return to work with restrictions per FCE.”3 (Admin. Rec. at 000265.)
Additionally, Dr. Clark drafted a letter “to whom it may concern” dated March 17,
2011, where he stated that Plaintiff “is under my medical care and may return to work
on 3/21/11 per FCE. He can occasionally lift 50 lbs. There should be no prolonged
bending, stooping or climbing. He may lift 25 lbs. frequently.” (Admin. Rec. at
000517.)
C. Plaintiff’s Long Term Disability Claim
1. “Own Occupation” Disability
Plaintiff made a claim for LTD benefits under the Plan in July 2011. (Admin.
Rec. at 000661-62.) Based on the March 2011 FCE results and Dr. Clark’s
statements regarding Plaintiff’s reduced functional capacity, Aetna determined that
Plaintiff was not able to perform his own occupation and approved his claim for LTD
benefits.4 (Admin. Rec. at 000170-07; Admin. Rec. at 000175.) Aetna informed

Plaintiff was paid worker’s compensation benefits until August 25, 2011. (Admin. Rec.
at 000278.)
3

Aetna initially denied the LTD claim in a letter dated July 25, 2011, because it had not
received some disability forms. (Admin. Rec. at 000263.) Plaintiff appealed the denial and
submitted the required forms on July 27, 2011. (Admin. Rec. at 000269.)
4

9

Plaintiff of the approval of his LTD claim in a letter dated September 9, 2011, with
an effective date of September 3, 2010. (Admin. Rec. at 000228-30.) That letter
further stated that Aetna would periodically re-evaluate Plaintiff’s eligibility for
benefits, and reminded him that the Plan limited benefits for disability from Plaintiff’s
“own occupation” to twenty-four (24) months. (Id.) After the 24 month “own
occupation” period, the letter told Plaintiff that he was required to “meet a more strict
‘any occupation’ definition of disability” and show that he was “unable to perform
any reasonable occupation for which [he was] qualified or could become qualified as
a result of [his] education, training or experience.” (Id.)
2. “Any Occupation” Disability
On March 6, 2012, Aetna wrote a letter to Plaintiff reminding him that the
“own occupation” period would end on September 2, 2012, and informing him that
it was conducting a review of his ability to perform other occupations. (Admin. Rec.
at 000357- 58.) Aetna asked Plaintiff to provide any medical and vocational
information he wished the company to consider in its review. (Id.) Additionally, a
few weeks later, On March 29, 2012, Aetna asked Plaintiff to arrange for his treating
physician to complete an enclosed capabilities and limitations worksheet, and to
submit medical support for his ongoing disability claim. (Admin. Rec. at 000369-72.)
On April 4, 2013, in response to Aetna’s letter, Plaintiff informed Aetna that
10

he had contacted Dr. Clark’s office and St. Vincent’s clinic and was told that “there
is no new medical information since [his] last office visit to Dr. Clark’s office on
March 16, 2011,” and that “they would not send in any new paperwork on [his]
behalf since there is nothing new to report.” (Admin. Rec. at 000495.) Plaintiff stated
that his “medical condition and disability remains the same.”

(Id.) Plaintiff

completed the capabilities and limitations worksheet himself, stating that “no new
medical information or new physicians seen since last visit to Dr. Charles Clark on
March 16, 2011. Medical condition still same. Also, no new medications taken.”
(Admin. Rec. at 000625-26.)
To determine Plaintiff’s qualifications to perform other occupations, Aetna
procured a transferable skills analysis (TSA) from Coventry Health Care. (Admin.
Rec. at 000520-23.) In a report dated June 7, 2012, Deborah Lince, MS, CRC,
discussed Plaintiff’s occupational and educational history, and identified several
appropriate jobs for plaintiff ranging from sedentary to medium duty. (Id.) Those
jobs included the following: (1) Food Service Driver, Medium duty $14.65 per hour;
(2) Airline Security Representative, Light duty $17.36 pe hour; (3) Truck Driver,
Light/Medium duty $14.65 per hour; (4) Taxicab Starter, Sedentary duty $16.72 per
hour; (5) Surveillance System Monitor, Sedentary duty $16.55 per hour; and/or (6)
Assignment Clerk, Sedentary duty $20.93 per hour.
11

By letter dated June 13, 2012, Aetna informed Plaintiff that LTD benefits
would be denied after September 2, 2012, based on a determination that Plaintiff was
not disabled from “any reasonable occupation.” (AR000492-94.) Aetna emphasized
that its decision was based on the FCE and Dr. Clark's March 17, 2011 release of
Plaintiff to return to work stating, inter alia, that Plaintiff was capable of lifting up to
50 pounds. (Id.) Aetna also noted that the TSA identified several appropriate
alternative occupations based on plaintiff s physical limitations, education and work
history. (Id.)
Plaintiff appealed the denial with the assistance of counsel, Tammy Smith at
Taylor & Taylor in Birmingham. (Admin. Rec. at 000528-29 .) Taylor submitted
additional information for Aetna’s review, including Workman’s Compensation
Status Forms dated October 11, 2012 and November 28, 2012, signed by Dr. Clark
and bearing check marks next to “patient not able to work.” (Admin. Rec. at 000543;
547.) The forms contained no other information about Plaintiff s restrictions and
limitations despite providing plenty of spaces for such information. (Id.) Smith also
submitted office visit notes from Dr. Clark dated October 11, 2012, October 18, 2012,
and October 23, 2012. (Admin. Rec. at 000544-46). In those records, Dr. Clark
noted that Plaintiff had another myelogram and CT scan, in which Dr. Clark saw “no
evidence of root encroachment.” (Id.) Although Plaintiff reportedly continued to
12

complain of left hip and leg pain, Dr. Clark noted that the fusion at L5-S 1 was
progressing satisfactorily and the pedicle screws were in excellent position. (Id .) Dr.
Clark recommended lumbar epidural blocks, noted that Plaintiff was prescribed
Neurontin, and indicated he would see plaintiff “in the future only if needed.” (Id.)
Aetna sent Plaintiff’s medical records for independent review by Ephraim K.
Brenman, D.O., a physician board certified in physical medicine and rehabilitation,
with a sub-specialty certificate in pain medicine. (Admin. Rec. at 000486-89.) Dr.
Brenman determined that the records did not support a functional impairment
precluding Plaintiff from the performing “any occupation” or a heavy physical
demand level occupation . (Id.) Dr. Brenman emphasized that the FCE showed that
Plaintiff could perform a heavy duty job, and in Dr. Brenman’s opinion, Plaintiff
could lift and carry up to 50 pounds on a frequent basis. (Id.) Plaintiff had no
restrictions to sitting, standing, and walking, or going up and down stairs, reaching
overhead or repetitive upper limb activities while sitting at a desk including
keyboarding and fingering or reaching at a desk level. (Id.) Plaintiff was restricted
to reaching below waist level to an occasional basis, but there was nothing else in the
documentation to support preclusion from work. (Id.) Dr. Brenman commented that
the CT myelogram was negative, the MRI scan showed no nerve root impingement,
and there was no objective evidence of radiculopathy on examination. (Id.)
13

Dr. Brenman expressed disagreement with Dr. Clark’s October 11, 2012
Workman’s Compensation Status Form indicating “patient not able to work,”
because it was not supported by the medical evidence. (Id.) Dr. Brenman further
observed that there was no documentation of adverse medication effect causing
functional impairment, and opined that the occupations identified in the TSA were
appropriate for Plaintiff. (Id.) Finally, Dr. Brenman attempted to conduct a peer-topeer conference with Dr. Clark regarding Plaintiff’s restrictions and limitations, but
two phone calls from Dr. Brenman to Dr. Clark’s office were not returned. (Id.)
In a further attempt to reach Dr. Clark and to better understand Plaintiff’s
impairment level and functioning capacity, Aetna wrote to Dr. Clark on January31,
2013, and referenced Dr. Brenman’s desire to discuss Plaintiff’s restrictions and
limitations, but that his calls were not returned. (Admin. Rec. at 000395.) Aetna
enclosed a copy of Dr. Brenman’s report, and asked Dr. Clark to identify any portions
with which he disagreed. (Id.) Dr. Clark did not respond. (Admin. Rec. at 000397.)
Based on the above, by letter dated February 13, 2013, Aetna informed Plaintiff
that the LTD decision was upheld on appeal. (Admin. Rec. 000396-98.) Aetna
emphasized that although Plaintiff continued to complain of hip and leg pain and Dr.
Clark indicated on two forms that plaintiff was not able to work, there was a lack of
medical evidence to support plaintiff s inability to work at any reasonable occupation
14

as of September 3, 2012. (Id.) Aetna stated that Dr. Brenman’s review, the FCE, Dr.
Clark's medical records and release of plaintiff to work in March 2011, the CT
myelogram and MRI tests, and the TSA all supported that plaintiff was capable of
performing a number of sedentary, light, and medium duty occupations. (Id.)
Plaintiff was informed of his right to bring suit under ERISA, and this action ensued.
(Id.)
III. Standard of Review
ERISA “permits a person denied benefits under an employee benefit plan to
challenge that denial in federal court.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
108 (2008) (citing 29 U.S.C. § 1132(a)(1)(B)). ERISA itself does not provide a
standard for courts reviewing benefits decisions made by plan administrators or
fiduciaries. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir.
2011) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989)), but
the Eleventh Circuit has “established a multi-step framework to guide courts in
reviewing an ERISA plan administrator’s benefits decisions” in light of recent
decisions of the Supreme Court Id. The steps are as follows:
(1) Apply the de novo standard to determine whether the
claim administrator’s benefits-denial decision is “wrong”
(i.e., the court disagrees with the administrator's decision);
if it is not, then end the inquiry and affirm the decision.

15

(2) If the administrator’s decision in fact is “de novo
wrong,” then determine whether he was vested with
discretion in reviewing claims; if not, end judicial inquiry
and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and
he was vested with discretion in reviewing claims, then
determine whether “reasonable” grounds supported it
(hence, review his decision under the more deferential
arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and
reverse the administrator’s decision; if reasonable grounds
do exist, then determine if he operated under a conflict of
interest.
(5) If there is no conflict, then end the inquiry and affirm
the decision.
(6) If there is a conflict, the conflict should merely be a
factor for the court to take into account when determining
whether an administrator's decision was arbitrary and
capricious.
Wayton v. United Mine Workers of America Health and Retirement Funds, 2014 WL
2566092 *3 (11th Cir. 2014). This court’s review of Aetna’s decision is limited to
“consideration of the material available to the administrator at the time of the
decision.” Blankenship, 644 F.3d at 1354 (citing Jett v. Blue Cross & Blue Shield,
890 F.2d 1137, 1140 (11th Cir. 1989)).
The claimant has the burden of proving entitlement to ERISA benefits. Glazer
v. Reliance Std. Life Ins. Co., 524 F.3d 1241, 1248 (11th Cir. 2008). Plaintiff “bears
16

the burden of proving that [Aetna’s] decision is wrong.” Id. at 1247. If Plaintiff
satisfies this burden, he “then must demonstrate that [Aetna’s] decision to deny [his]
LTD benefits was arbitrary and capricious; that is, he must show that no reasonable
grounds support [Aetna’s] decision.”5 Id.
III. Analysis
As discussed in detail above, Aetna denied Plaintiff’s LTD claim because it
concluded that Plaintiff did not satisfy the Plan’s Test of Disability after twenty-four
months of LTD payments was correct and not arbitrary and capricious. First, the
court must decide whether Aetna’s decision was correct. If it was, the inquiry ends.
If it was incorrect, the court must then go on to the next steps in the ERISA analysis
and ultimately decide whether the decision was arbitrary and capricious.
A. Aetna’s Decision Denying Benefits Was Correct
Under the Plan, for the first twenty-four months that benefits are payable, a
claimant is disabled if “solely because of injury or sickness . . . [he is] not able to

Plaintiff argues that the de novo standard of review should apply to the decision,
although Plaintiff stipulated in the Joint ERISA Report ( Doc. # 8) that “[t]he arbitrary and
capricious standard applies because the Group Policy at issue confers Aetna with ‘complete
authority to review all denied claims for benefits under this policy. . . .” (Id. at 2.) This argument
is erroneous. It is clear from the Plan documents before the court, including both the Group
Policy and the Plan booklet-certificate, that the Plan granted Aetna discretionary authority in
reviewing claims. Plaintiff’s argument that he was not provided a copy of the Group Policy
before this litigation is not persuasive. See Brucks v. Coca-Cola, 391 F. Supp. 2d 1193, 1202
(N.D. Ga. 2005.)
5

17

perform the material duties of [his] own occupation.” (Admin. Rec. at 000040.)
After reviewing all the relevant medical information (see supra at Section IIB-C1),
Aetna accepted Plaintiff’s reduced physical capacity rendered him unable to perform
his own occupation are a ramp agent and paid him the full 24 months of “own
occupation” LTD benefits. This is undisputed.
After the passage of those 24 months, however, the Plan re-defines the
definition of disability: after the first twenty-four months a claimant is disabled if
solely because of injury or disease, he is “not able to work at any reasonable
occupation” or his “earnings from working in any occupation are 50% or less of [his]
adjusted predisability income earnings. . . .” (Admin. Rec. at 000040.) This is where
Plaintiff and Defendant disagree.
To ascertain Plaintiff’s qualifications to perform “any occupation,” in March
2012, Aetna asked Plaintiff to provide any new medical and vocational information,
asked Plaintiff to arrange for his treating physician to complete a capabilities and
limitations worksheet, and to submit medical support for his ongoing disability claim.
(Id. at 000369-72.) Plaintiff did not submit any new information to be considered and
stated that his medical condition and disability remains the same.” (Id. at 000459.)
Plaintiff completed the capabilities and limitations worksheet himself, stating “no
new medical information or new physicians seen since last visit to Dr. Charles Clark
18

on March 16, 2011. Medical condition still same. Also no new medications taken.”
(Id. at 000625-26.) Aetna then obtained a TSA which identified seven “reasonable
occupations” for Plaintiff ranging from sedentary to medium duty, for which he was,
or could reasonably become, fitted by education, training or experience. Based on
the TSA, FCE, and Dr. Clark’s assessment of Plaintiff’s ability to work, Aetna denied
Plaintiff’s claim for LTD benefits beyond the 24 month “own occupation” period.
The record before the court fully supports that Aetna’s decision was correct and
that Plaintiff was capable of such work. In particular, Plaintiff’s treating physician,
Dr. Clark, released Plaintiff to return to work on March 21, 2011 per FCE and
assigned him a 10% impairment rating. (Id. at 000516.) Dr. Clark further stated that
Plaintiff could occasionally lift 50 pounds and may frequently like 25 pounds,
although there should be no prolonged bending, stooping or climbing. (Id. at
000517.) The FCE rated Plaintiff’s strength in the “heavy work category for lifting,
carrying, and push/pull.” (Id. at 000193-94.) Plaintiff demonstrated the ability to lift
and carry from floor to waist 50-55 pounds occasionally and 25 pounds frequently,
and push and pull up to 65 pounds. (Id.) He was able to sit for 30 minutes, with
reported difficulty, and walk for 25 minutes. (Id.) Despite Plaintiff’s assertions to
the contrary, these capabilities clearly establish Plaintiff’s ability to perform sedentary
to medium work on a full-time basis.
19

It is well-settled law that individuals capable of performing such work are not
disabled under an “any occupation” ERISA LTD policy. See Paramore v. Delta Air
Lines, Inc., 129 F.3d 1446, 1452 (11th Cir. 1997) (affirming summary judgment for
administrator under “any occupation” standard where physician deemed claimant
“capable of sedentary work”); Richey v. Hartford Life & Accident Ins. Co., 608 F.
Supp. 2d 1306, 1311-12) (finding insurer’s “any occupation” decision was not wrong
where physical capabilities evaluations, employability analysis, and independent peer
review supported plaintiff’s ability to do sedentary to light work).
Additionally, Aetna was not wrong in discounting the additional evidence
submitted on appeal by Plaintiff. Specifically, Plaintiff submitted two Workman’s
Compensation Status Forms dated October 11, 2012 and November 28, 2012, that
were singed by Dr. Clark and had a check mark next to “patient not able to work.”
(Admin. Rec. at 000543, 000547.) These conclusory forms do not give near enough
support to Plaintiff’s claim that he is incapable of working in “any occupation” as
they failed to provide any basis for the decision. This is particularly true where the
overwhelming medical evidence, including that from Dr. Clark, is inconsistent with
such a conclusion.6 Unsupported declarations that a claimant is unable to work are

Indeed, Dr. Clark’s most recent medical records from October 2012 reflect that Plaintiff
had “no evidence of root encroachment” in his spine, the fusion at L5-S1 was progressing
satisfactorily, the pedicle screws were in excellent condition, and Plaintiff would be seen in the
6

20

not enough to support a claim of disability. See Gipson v. Admin. Comm. of Delta
Air Lines, 350 F. App’x 389, 395 (11th Cir. 2009).
Finally, Plaintiff’s medical records were thoroughly reviewed by an
independent, board certified physician in physical medicine and rehabilitation with
a sub-specialty certificate in pain medicine, Dr. Ephraim K. Brenman, D.O., who
opined that the record did not support a functional impairment precluding Plaintiff
from performing “any occupation” or a heavy physical demand level occupation.
(Admin. Rec. at 000486-89.) Dr. Brenman expressly disagreed with Dr. Clark’s
opinion that Plaintiff was not able to work, and stated that it was not supported by the
medical evidence. (Id.) An ERISA administrator is entitled to rely on the opinion of
a qualified consultant who neither treats nor examines the claimant, but instead
reviews the claimant’s medical records. See Hufford v. Harris Corp., 322 F.Supp.2d,
1345, 1359 (M.D.Fla. 2004); Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1148
(7th Cir. 1998).
In sum, Aetna’s benefits decision, based on the FCE, the independent review
of Dr. Brenman, Dr. Clark’s medical records and release of Plaintiff to return to work,
the CT myelogram and MRI scans, and transferable skills analysis, was correct. As
such, summary judgment is due to be granted in favor of Aetna.
future only as needed. (Admin. Rec. at 000544-46.)

21

B. There are Reasonable Grounds for Aetna’s Decision
Under the multi-step ERISA framework, the court’s inquiry ends after the court
determines that Aetna’s decision was correct. Blankenship, 644 F.3d at 1355.
However, alternatively and additionally, the court concludes, consistent with the
discussion above, that even if Aetna’s decision was wrong (and to be clear, the court
finds that it was not), there were “reasonable” grounds in the record which support
Aetna’s decision. Because reasonable grounds exist to support the denial decision,
it is unnecessary for the court to determine if Aetna operated under a conflict of
interest. Therefore, this court’s consideration of Plaintiff’s ERISA claim is at its end.
IV. Conclusion
Aetna’s decision is due to be affirmed. A separate order will be entered
dismissing this case with prejudice.
DONE this the

16th

day of April, 2015.

SENIOR UNITED STATES DISTRICT JUDGE

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