West v. Aetna Life Insurance Company
ORDER granting 68 Joint Motion for Judgment. Once total amount of the back-due benefits plus interest, attorney fees, and costs is fixed by the Court, the clerk shall enter final judgment, by Judge Lewis T. Babcock on 2/14/2018. (ebuch)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 1:15-cv-00379-LTB-MEH
MARIE KATHLEEN WEST
AETNA LIFE INSURANCE COMPANY
In this suit under the Employment Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq. (“ERISA”), Marie Kathleen West challenges Aetna Life
Insurance Company’s (“Aetna”) decision to terminate her long-term disability
benefits. Ms. West asks this Court to find that Aetna’s determination was arbitrary
and capricious, to order Aetna to reinstate her benefits, and to award interest on
back due amounts and attorneys’ fees and costs. Aetna counters that this Court
should affirm its decision denying benefits, or if this Court finds error, remand the
case to the plan administrator for a renewed evaluation of Ms. West’s claim. Aetna
filed an Administrative Record (“AR”) (ECF No. 38), and after briefing (ECF Nos.
57, 61, 65, 66), the parties filed a joint motion for a judgment on the administrative
record (ECF No. 68).
I GRANT the joint motion for judgment (ECF No. 68), and I will ENTER
JUDGMENT in favor of Ms. West. Aetna’s decision terminating benefits was
inconsistent with the Social Security Administration’s (“SSA”) decision awarding
them and every opinion of Ms. West’s treating physicians. As I describe below, its
decision was arbitrary and capricious and was not based on substantial evidence. I
AWARD Ms. West back-due benefits plus interest at the statutory rate, and I
ORDER Aetna to reinstate her benefits. I also AWARD Ms. West reasonable
attorneys’ fees and costs under 29 U.S.C. § 1132(g).
Ms. West shall file a brief and accounting of the back-due benefits plus
interest, attorney fees, and costs she seeks to recover from Aetna on or before March
6, 2018. Aetna shall file a response brief and any objections to Ms. West’s
accounting on or before March 20, 2018. Ms. West may file a reply brief on or before
March 30, 2018.
Aetna’s Long-Term Disability Plan
On September 4, 2007, Ms. West began working as a contract administrator
at Ciber, Inc. She was a participant in a long-term disability plan that Aetna
administered and underwrote. The plan defines disability as:
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:
• you are not able to perform the material duties of your own
occupation solely because of: disease or injury; and
• your work earnings are 80% or less of your adjusted
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 you
are not able to work at any reasonable occupation solely because of:
• disease; or
AR 8 (emphases omitted). A “reasonable” occupation is “any gainful activity for
which you are; or may reasonably become; fitted by: education; training; or
experience; and which results in; or can be expected to result in; an income of more
than 60% of your adjusted predisability earnings.” AR 22 (emphasis omitted). The
plan gives Aetna discretionary authority to “determine whether and to what extent
employees and beneficiaries are entitled to benefits; and construe any disputed or
doubtful terms of this policy.” AR 62.
Ms. West’s Accident and Aetna’s Initial Approval of Benefits
On October 22, 2007, Ms. West fell on a concrete stair and hit her head. AR
599. She may have lost consciousness and had some “seizure activity.” AR 589; see
also AR 525. The next day, she went to her primary care physician for treatment,
and he indicated she had lost consciousness and had a lump on her head. AR 473.
She also went to a chiropractor for care soon afterward. AR 462–64, 715–17. It turns
out she had fractured her spine. AR 1707.
Despite the fracture, Ms. West continued to work for several months after the
fall and had conservative treatments like steroid injections to address her pain. AR
599, 713. The conservative treatments failed, Ms. West’s symptoms worsened, and
on July 30, 2008, she underwent a two-level vertebrae fusion. AR 1418–19. Ms.
West returned to work about two months after the surgery. AR 589–91. However,
she suffered from “severe axial pain, neck pain and burning pain down both of her
arms.” AR 506, see also, e.g., AR 525. An April 2008 MRI revealed disc herniation at
the cervical 5–6 and 6–7 levels, mild degenerative disc disease, and moderate
central canal stenosis at the cervical 6–7 levels. AR 734. She was eventually told to
stop working and went on short-term disability in fall 2008. AR 589.
In spring 2009, Ms. West filed a long-term disability claim with Aetna. AR
65. Soon afterward, Ms. West had a second surgery. AR 497–507. Dr. Evalina
Burger performed the surgery in May 2009; however, she noted that she was “not
confident that we will be able to relieve all of [Ms. West’s] pain.” AR 516. At the
May 2009 surgery, the hardware from the first fusion was removed, one disc was
grafted, two discs were re-plated, and a third was replaced. AR 506. A postoperative x-ray showed a “good position of her hardware with no apparent hardware
failure.” AR 1546. When Ms. West was discharged from the hospital after the
surgery, she was directed to avoid “heavy lifting, bending, or twisting for the next 6
weeks.” AR 498. A severe post-operative bone infection complicated her recovery
and required six weeks of intravenous antibiotics. AR 484–88, 498, 505.
While Ms. West initially reported that her right-arm weakness and neck pain
were “100 percent gone,” AR 488, she also complained of headache, myalgia (muscle
pain), shortness of breath, nausea, intermittent tinnitus, and mild dysuria (pain or
discomfort when urinating), AR 489. Soon after the surgery, Ms. West reported
continued neck and arm pain, which Dr. Burger suspected may be from prior nerve
damage. AR 1533. She also continued to use narcotic pain medicine. Id. A postoperative CT scan of her cervical spine from May 2009 showed that the prosthesis
at the cervical 4–5 level “extends approximately 2mm into the ventral canal,
without significant spinal stenosis.” AR 502. Nevertheless, Dr. Burger concluded in
August 2009 that overall, Ms. West was doing “remarkably well,” with improved
range of motion and only slight weakness on the right side. AR 1533. But she also
opined both in April 2009 and October 2010 that Ms. West could not work. AR
1816–21. She opined in April 2009 that Ms. West’s disability was permanent. AR
In July 2009, AETNA approved Ms. West’s claim for disability, determining
she was unable to work at her “own occupation” as a contract administrator at
Ciber beginning several months earlier, on January 26, 2009. AR 738–39. AETNA
paid benefits during the entire 24-month “own occupation” term of the plan. Id. The
records from that two-year “own occupation” disability period reflect regular
complaints of continued pain from Ms. West. The records also show that Ms. West
used various pain medications to alleviate her symptoms. E.g., AR 763. At times,
she reported some relief from the medications. Id. At other times, she reported
acute pain. AR 764–65. She managed to reduce, but not eliminate, her opioid use by
late summer 2009. AR 766–67. She also reported withdrawal symptoms and acute
pain during periods when her prescriptions ran out. Id.
Beginning in January 2011, Aetna awarded Ms. West benefits under the “any
reasonable occupation” provision of the plan, meaning it determined she was unable
to work at any reasonable occupation. AR 828. Like the records from the two-year
period preceding it, the records from 2011 reflect Ms. West’s continued struggles
with pain management. They also reflect some side effects from long-term opioid
use. For instance, in February 2011, Ms. West went to Rose Medical Center in
Denver, Colorado with severe abdominal pain, vomiting, nausea, and a headache.
AR 1440. She also reported continued neck pain. Id. She went to Rose Medical
Center again in April 2011 with similar problems. AR 1449. One physician who
treated her suspected that Ms. West’s gastrointestinal issues were tied to the “large
amount of narcotics” Ms. West was taking. AR 1453. In May 2011, Ms. West’s father
took her to Rose Medical Center with decreased consciousness and slurred speech.
AR 1459. The treating physician described Ms. West’s “history of narcotic
dependence,” and suspected a combination of sleep deprivation, a migraine, and
chronic narcotic use caused her altered state. AR 1461, 1465. An ultrasound was
normal, AR 1495, as was a CT scan of her head, AR 1492. An MRI showed findings
“consistent with migraines or other causes of minimal microvascular disease” and
no evidence of acute ischemic injury (stroke). AR 1494.
In June 2011, Ms. West began seeing Dr. Jason Peragine for pain
management. AR 876–78. She reported her symptoms were “moderate in severity
(7/10).” AR 876. Dr. Peragine planned to slowly taper her use of pain medications
and weighed also using trigger point injections for pain management. AR 878. She
was able to decrease her opioid use somewhat, but she continued to have pain in her
neck, shoulder, and right arm. AR 873. When she decreased it further, she
experienced significant pain. AR 871. She tried injections, and they provided the
best pain relief she had ever had, but they only lasted about a week. AR 867, 869.
By November 2011, Ms. West reported that the effectiveness of the injections had
decreased. AR 865 (reporting that the injections only provided 15% short-term
improvement in neck pain).
Aetna’s Termination of Benefits and SSA’s Disability Award
In February 2012, Aetna told Ms. West it needed to conduct an independent
medical evaluation “for further disability evaluation.” AR 907. The amount already
paid out on Ms. West’s claim appears to have triggered this next-level review. See
AR 229 (reporting that “approval limit exceeded Benefit Level Authority Review
created”). At Aetna’s request, Ms. West completed an “activities questionnaire,”
where she explained she still suffered from chronic pain and vertigo, did very little
in the way of activities, and could not return to work. AR 993–98. Dr. Peragine also
concluded, after treating her for over a year, that Ms. West was “unable to work.”
AR 1040 (January 2013 opinion); AR 1832 (September 2012 opinion); AR 1827–29.
At Aetna’s insistence, and with expert assistance it helped her obtain, Ms.
West applied for Social Security Disability Income in March 2012. AR 903–04, 916.
SSA ultimately found her totally disabled as of March 1, 2009. AR 1192–1201.
Aetna reduced its payments to Ms. West by the amount of the SSA award. AR 10,
In February 2013, Aetna asked Dr. Stuart Rubin, a rehabilitation and
physical medicine specialist, to independently review Ms. West’s medical records
and opine on her physical (but not mental) impairments. AR 1050. The report does
not specify which records Dr. Rubin reviews. It indicates he reviewed “all the
records listed above,” but there is no list of records above. Id. Dr. Peragine’s contact
information is listed above, which suggests Dr. Rubin at least reviewed his records.
Id. Dr. Stuart also tried to consult with Dr. Peragine about Ms. West’s impairments,
but after a failed game of phone tag, the two never spoke. AR 1051. Dr. Rubin
opined, “based on the information available for review,” that “functional impairment
is not supported from 11/1/2012 to 11/1/2013.” AR 1056–57. He found “no indication
the claimant is experiencing any adverse medication effects during the time period
in question.” AR 1056. With her medication regimen “stable,” Dr. Stuart concluded
that Ms. West could work full-time in a sedentary job. AR 1056. In April 2013,
Aetna sent Dr. Stuart’s report to Dr. Peragine and asked him to opine on it within
15 days, AR 1053–54, but Dr. Peragine never responded because Ms. West stopped
seeing him several months earlier when she started seeing Dr. Andrew Hong a pain
management specialist, AR 1063, 1922.
In May 2013, Aetna sent Ms. West a letter terminating her benefits. AR
1060. Aetna advised Ms. West that while it previously advised her to apply for
Social Security Disability benefits based on “medical and vocational information
which indicated [she] was totally disabled,” new information—Dr. Stuart’s report
and Dr. Peragine’s statement that he was no longer treating Ms. West—
demonstrated she was no longer disabled under Aetna’s disability plan. AR 1063.
The letter notified Ms. West of her right to appeal and told her she could provide
additional information in her appeal. Id.
Ms. West’s Appeal
Ms. West submitted an appeal in October 2013. The appeal included the
entire record from her Social Security Disability proceeding and other medical
records. It included a “Concentration Residual Functional Capacity Questionnaire”
completed by Dr. Hong. He described some side effects from Ms. West’s medications
and concluded her memory, concentration, understanding, and social interaction
skills were impaired. AR 1139–40. He concluded she was unable to perform any job
over an 8-hour work day. AR 1142. Dr. Hong also opined that she had physical
limitations that impaired her ability to work. AR 1901. Dr. Hong’s records also
included a note reporting that , after several months of adjusting her pain
medications, the treatment was “working very well in controlling her pain.” AR
1925. But even then, Ms. West still reported headaches and dizziness. Id.
New information in the appeal also included records from Dr. Adam Wolff, a
board-certified physician in neurology and neurophysiology who treated Ms. West
beginning in June 2012. He similarly opined that Ms. West’s memory,
concentration, understanding, and social interaction skills were impaired. He
concluded she could not work a normal workweek or workday. AR 1144–46; see also
AR 1910 (opining that Ms. West had moderate impairment in her ability to
understand and remember detailed instructions, carry out detailed instructions,
and make judgments on simple work-related decisions). Dr. Wolff also reported
“marked” impairment in her ability to deal with the pressure of a work setting and
to changes in a work setting. AR 1911. He also reported that she suffered from
severe dizziness and pain, which were exacerbated by “duress.” AR 1910–11. Dr.
Wolff additionally opined that because of her migraine headaches, Ms. West could
not work. AR 1149–53. He pointed to an MRI which showed lesions in her frontal
lobe as objective evidence of the headaches. AR 1151, see also AR 1179, 1700 (MRI
results). Dr. Wolff treated Ms. West with Botox injections for chronic neck and
migraine pain. AR 1158–60, 1797–98.
The appeal also included an opinion from an eye doctor, Dr. Ellen Petrilla,
who found that Ms. West’s oculomotor skills were poor. AR 1156. She also found a
“jerk nystagmus” on eye muscle testing, which neurological trauma can induce. Id.
Dr. Petrilla concluded that Ms. West may have to endure “discomfort and an
inability to focus” for her entire life. Id.
Records from Dr. Stanley Kerstein, an internist who treated Ms. West,
reflected increased headaches, vertigo, and eye movement dysfunction. AR 1512.
Additional records from Dr. Burger’s office from April 2012 indicated that Ms.
Burger thought Ms. West has “obviously done well,” and looked great after losing
weight and getting some plastic surgery. AR 1710. However, that description was
tempered with Ms. West’s complaints of severe vertigo. Id. Dr. Burger did not think,
based on her review of an MRI that showed lesions in Ms. West’s frontal lobes, that
the vertigo was related to the brain abnormalities. Id. She encouraged Ms. West to
see an ear, nose and throat specialist for further evaluation. Id. The ear, nose, and
throat specialist conducted a videonystagmography (tests designed to document a
person’s ability to follow visual objects with their eyes and to assess whether inner
ear problems are causing a balance or dizziness problem). AR 1181. The testing was
The appeal also included additional records and an opinion from Dr. Jessica
Lee, a clinical psychologist whom Ms. West began seeing in April 2012. Dr. Lee
opined that Ms. West was slightly to moderately impaired in her ability to
understand, remember, and carry out instructions. AR 1776. She described her as
“consistently forgetful” and believed Ms. West’s depression affected her cognition.
Id. Dr. Lee also opined that Ms. West could not have “consistent performance on
tasks” due to “fluctuating cognitive functioning and mood.” AR 1777. She opined
that during an eight-hour workday, Ms. West would be off task more than 30% of
the time. AR 1918.
The appeal also included records from February 2013, when Ms. West saw
Dr. David Opperman at the Colorado Voice Clinic to treat her dizziness. AR 1176.
He recommended she see a neurologist and scheduled an MRI and some other tests.
AR 1178. An MRI of her head showed “punctate periventricular and deep white
matter FLAIR [fluid-attenuated inversion recovery] hyperintensities.” AR 1180. The
physician interpreting the MRI believed the hyperintensities could be “sequela of
chronic migraine headaches, areas of gliosis from prior brain insult, or sequela of
chronic small vessel ischemic disease.” Id.
In May 2013, Dr. Howard Kerstein, an endocrinologist, evaluated Ms. West
and observed nystagmus (rapid and uncontrolled eye movements), which he
suspected may be related to her vertigo. AR 1943. He concluded that Ms. West’s
opioid use and head trauma may have suppressed her pituitary function. Id. He
suggested she start hormone replacement therapy. Id.
Ms. West also included various imaging studies in her appeal. A lumbar
spine MRI in November 2013 showed “multilevel disc protrusions and annular
fissures.” AR 2008. At the lumbar 4–5 level, there was a “moderate sized broad
based midline dorsal disc protrusion,” which “may be in contact with the lumber 5
nerve roots on both sides,” but “without overly compressing the nerves.” Id. A
January 2014 x-ray showed lower “lumbar and lumbrosacral junction degenerative
disc disease and degenerative facet disease” and low bone density. AR 2019–20.
In March 2014, Dr. Adam Wolff sent a letter to Aetna. He explained that he
disagreed with Dr. Rubin’s conclusions. He explained that Dr. Rubin had “excluded
the pertinent facts surrounding Ms. West’s accident.” AR 2167. He asserted that the
origin of Ms. West’s injuries was critical to understanding her impairments and
that Dr. Rubin’s limited review of the medical records meant he “neither understood
the nature, nor the extent of Ms. West’s head and spine injuries.” Id. Dr. Wolff
pointed out that Dr. Rubin apparently did not even know that Ms. West’s symptoms
began after a fall, when she fractured her spine and hit her head. Id. Dr. Wolff also
pointed to a six-inch subdural hematoma and a concussion diagnosis as medical
evidence of Ms. West’s traumatic brain injury. AR 2168. He also explained that her
injury permanently affected the strength of her back, right arm, hand, and fingers.
Id. Dr. Wolff also explained that the time frame Aeta asked about (November 1,
2012 through November 11, 2013) was to some extent irrelevant because “[m]any, if
not all of Ms. West’s impairments are severe and permanent.” AR 2169.
The appeal also included a long-term disability evaluation. Two occupational
therapists reviewed Ms. West’s medical records and met with her. They conducted
over 30 different tests, both objective and subjective, to assess Ms. West’s abilities.
The evaluators concluded it was a “valid and reliable test performance using
standardized examinations and instruments that have been shown by research to
predict vocational potential.” AR 2060. They concluded she was impaired in a
variety of ways, including fine and gross motor coordination and adaptive
behaviors. AR 2077–78. One of the therapists also conducted an employability
assessment and determined that Ms. West was “not able to do any work at any age
in the local or national economy.” AR 2096.
Aetna provided the updated medical records from the appeal to two medical
sources, Dr. Naresh Sharma, board certified in anesthesiology with expertise in
pain management, and Dr. Kristen M. Fiano, board certified in psychology/clinical
neuropsychology. Dr. Sharma concluded Ms. West was capable of full-time
employment and had no functional limitations or restrictions from May 1, 2013 to
May 31, 2014. AR 2203–09. Similarly, Dr. Fiano concluded that the record did not
“provide evidence of neuropsychological impairments” or “support for ongoing
sequelae of a TBI.” AR 2185–89. Aetna provided Dr. Sharma’s report to Dr. Wolff
and to Dr. Peragine for their comments, even though Ms. West had not seen Dr.
Peragine for well over a year. AR 2207. Neither responded, although Dr. Sharma
did have a copy of Dr. Wolff’s earlier letter critiquing Dr. Rubin’s assessment. AR
2177, 2179. Aetna did not provide Dr. Sharma’s report to Dr. Hong, Ms. West’s
current pain-management provider. See AR 2197.
In June 2014, Aetna affirmed its prior decision denying benefits. It explained
that it gave SSA’s decision awarding benefits little weight because Aetna’s decision
was based on more recent records. AR 2214. However, it did not identify the more
recent records it relied on. Id. Aetna explained, “we have determined that there was
insufficient medical evidence to support Ms. West’s inability to work at any
reasonable occupation.” Id. Aetna also concluded there was no objective evidence of
Ms. West’s self-reported symptoms. AR 2213–14.
II. LEGAL STANDARD
ERISA governs employee benefit plans, including disability benefit plans. 29
U.S.C. § 1001 et seq. “When an individual covered by the plan makes a claim for
benefits, the administrator gathers evidence, including the evidentiary submissions
of the claimant, and determines under the plan’s terms whether or not to grant
benefits. If the administrator denies the claim, the claimant may bring suit to
recover the benefits due to him under the terms of his plan.” Jewell v. Life Ins. Co.
of N. Am., 508 F.3d 1303, 1308 (10th Cir. 2007) (quotation omitted). Federal courts
have exclusive jurisdiction over these suits because ERISA preempts most relevant
state laws. 29 U.S.C. § 1144(a).
When, as here, a benefit plan “confers upon the administrator discretionary
authority to determine eligibility for benefits or to interpret plan terms” a court
reviews the plan administrator’s decision for abuse of discretion, which, in this
context, is interchangeable with the arbitrary-and-capricious standard. Foster v.
PPG Indus., Inc., 693 F.3d 1226, 1231 (10th Cir. 2012) (citing Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 111, (2008)). This deferential standard means a plan
administrator generally enjoys considerable latitude:
When reviewing under the arbitrary and capricious standard, the
Administrator’s decision need not be the only logical one nor even the
best one. It need only be sufficiently supported by facts within his
knowledge to counter a claim that it was arbitrary or capricious. The
decision will be upheld unless it is not grounded in any reasonable
basis. The reviewing court need only assure itself that the
administrator’s decision falls somewhere on a continuum of
reasonableness—even if on the low end.
Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1269 (10th Cir. 2002) (quoting
Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999)) (alteration omitted).
However, where a plan administrator is “operating under a conflict of
interest, that conflict may be weighed as a factor in determining whether the plan
administrator’s actions were arbitrary and capricious.” Foster, 693 F.3d at 1232
(alteration and quotation omitted). The weight given to the plan administrator’s
conflict of interest is necessarily case–specific and is informed by the severity of the
conflict and the clarity of the other factors contributing to the decision. Glenn, 554
U.S. at 117–19; see Nelson v. Aetna Life Ins. Co., 568 Fed. App’x 615, 620–21 (10th
Cir. 2014) (unpublished).
My review is limited to the administrative record. See Cardoza v. United of
Omaha Life Ins. Co., 708 F.3d 1196, 1201 (10th Cir. 2013). I consider only the
specific grounds that the administrator actually relied on to deny benefits, not
alternative justifications that the administrator could have, but did not, rely upon.
Spradley v. Owens–Ill. Hourly Employees Welfare Ben. Plan, 686 F.3d 1135, 1141
(10th Cir. 2012).
Conflict of Interest
As both the plan administrator and the underwriter, Aetna operates under a
conflict of interest. Pinto v. Blue Cross Blue Shield of Okla., 217 F.3d 1291, 1296
(10th Cir. 2000). A conflict warrants more weight “where circumstances suggest a
higher likelihood that it affected the benefits decision” and less weight “where the
administrator has taken active steps to reduce potential bias and to promote
accuracy.” Glenn, 544 U.S. at 117.
Aetna flagged Ms. West’s benefit award for review because of the amount it
had already paid out to her. See AR 229 (claim note reporting that “approval limit
exceeded Benefit Level Authority Review created”); AR 347 (claim note explaining
that payments were suspended because the approval limit was exceeded and the
case was assigned to a “next level approver”). After that review, her benefits were
terminated. This suggests that Aetna’s financial interests played a part in its
However, Aetna also took steps to mitigate the impact of its conflict by
retaining independent medical experts to review Ms. West’s file. This suggests that
while Aetna’s financial interests played a part in triggering the review, it played a
smaller part in the ultimate decision to terminate her benefits. See Holcomb v.
Unum Life Ins. Co. of Am., 578 F.3d 1187, 1193 (10th Cir. 2009) (giving conflict
“limited weight” where insurer “took steps to reduce its inherent bias by hiring two
independent physicians”). Nevertheless, I note that the records provided to one of
the independent physicians were not Ms. West’s complete records—an omission one
of Ms. West’s treating physicians suggested undermines his conclusions and limits
his report’s evidentiary value. AR 2167–70.
Another factor relevant to Aetna’s conflict is the tension between the Social
Security Administration’s award of benefits and Aetna’s denial. In Glenn, the
Supreme Court held that encouraging and assisting a claimant to apply for Social
Security benefits, while denying benefits under a plan using a similar disability
standard, warrants “giving more weight to the conflict,” because the “seemingly
inconsistent positions” are “both financially advantageous” to the administrator.
554 U.S. at 118. I describe in some detail below (in Section III(B)) why I agree with
Ms. West that the tension between SSA’s decision and Aetna’s warrants giving
additional weight to Aetna’s conflict.
Consequently, several factors suggest Aetna’s conflict should be accorded
some weight: the review appeared to be triggered by the amount Aetna had paid on
the claim, it did not provide all of Ms. West’s records to one independent physician,
and its decision is in conflict with SSA’s (as I describe in more detail in the next
section). But Aetna mitigated its conflict by having two additional independent
physicians review Ms. West’s records before making its decision to terminate
benefits. I accordingly give some—but not substantial—weight to Aetna’s conflict in
determining whether its decision was arbitrary and capricious. See Chambers v.
Family Health Plan Corp., 100 F.3d 818, 825 (10th Cir. 1996) (explaining that a
reviewing court “must decrease the level of deference given to the conflicted
administrator’s decision in proportion to the seriousness of the conflict”).
Social Security Determination
As I described above, I conclude the tension between Aetna’s decision and
SSA’s warrants giving more weight to Aetna’s conflict. I pause here to describe why
I find Aetna’s attempt to reconcile the inconsistent decisions unpersuasive.
Aetna required Ms. West to apply for Social Security Disability Income or her
long-term disability insurance benefits would be reduced. AR 879–80. Aetna also
helped her secure expert assistance to help with the application process. E.g., AR
903, 1063. She applied for Social Security benefits in March 2012, AR 916, and on
August 22, 2013, the Social Security Administration found her totally disabled as of
March 1, 2009, AR 1196–1201.
The standard for establishing disability under the Social Security regime is
actually more demanding than under Aetna’s plan. To receive Social Security
Disability Income, a claimant must establish she cannot perform all other
occupations available in the national economy. See 42 U.S.C. § 423(d)(2)(a). Aetna’s
standard is similar in that it requires a claimant to prove she cannot work at any
reasonable occupation. However, Aetna further limits the meaning of “reasonable
occupation” to one where the claimant would earn more than 60% of [her] adjusted
predisability earnings.” AR 22. This suggests that Aetna’s decision cannot be
reconciled with SSA’s.
However, Aetna argues its decision was based on more recent medical
records, meaning there is no inconsistency between its decision and SSA’s. But SSA
awarded benefits on August 22, 2013, and Aetna initially determined Ms. West no
longer qualified for benefits several months earlier, on May 1, 2013. Notably, in that
initial decision, Aetna acknowledged the conflict in urging Ms. West to apply for
Social Security benefits but then denying her claim:
In 2009 we approved your claim for LTD benefits and subsequently
encouraged you to work with our Social Security vendor, The
Advocator Group, to apply for Social Security Disability (SSD) benefits
through the Social Security Administration (SSA.) We asked you to do
this not only because your plan requires that you apply for other
income benefits for which you may be eligible, but also because there
are advantages to you if you are approved for SSD benefits. At that
time we had medical and vocational information which indicated that
you were totally disabled and it appeared that you would be eligible for
SSD benefits either for a closed period or an indefinite period.
However, since that time, we have updated your LTD claim record as
stated above, to include the recent Medical Peer Review and a response
from your treating physician that he is no longer treating you. We now
have found that you are no longer eligible for LTD benefits under your
policy, as you are no longer disabled based on the plan definition of
Totally Disabled quoted above.
In this initial decision terminating benefits, Aetna resolved the conflict with
SSA’s determination by identifying two new records—Dr. Rubin’s report and Dr.
Peragine’s statement that she was no longer a patient—that Aetna believed
suggested Ms. West was not disabled and therefore not entitled to any benefits. Id.
Ms. West was, of course, still under care for management of her chronic pain,
but under Dr. Hong instead of Dr. Peragine. Ms. West provided these records in her
appeal to Aetna, meaning a lack of treatment cannot serve as a valid basis for
terminating her benefits. As for Dr. Rubin’s report, not only does it fail to list which
records Dr. Rubin reviewed to come to his conclusions, it appears to rely solely on
Dr. Peragine’s records. AR 1050. Dr. Wolff pointed out that this omission means Dr.
Rubin may not have known Ms. West also injured her head when she severely
injured her cervical spine. AR 2167–70. I have little trouble concluding that Aetna’s
original decision terminating benefits was inconsistent with SSA’s not because it
was based on reliable new evidence, but because its decision was based on a factual
error and a report that fails to account for a substantial swath of Ms. West’s medical
But that is not the end of the story. Aetna had two more medical
professionals review Ms. West’s records after her appeal. And unlike Dr. Rubin,
both of them identified the records they reviewed, which were comprehensive. Thus,
I turn to whether the decision upholding the initial termination of benefits on
appeal is also in tension with SSA’s decision.
On appeal Aetna offered the same reason for the conflict with SSA’s decision
as it initially did—new medical records:
We are in receipt of a the [sic] Notice of Decision Fully Favorable
Letter, dated August 22, 2013, that indicates Ms. West has been
granted disability income benefits from the Social Security
Administration (SSA). Although this letter reported that, the SSA
determined Ms. West met their criteria for eligibility of benefits, we
also acknowledge that Ms. West received additional treatment and we
have received updated medical records from her providers, which
demonstrate functional capacity. For this reason, we have given the
fact that she is receiving SSD benefits little weight in our
determination of whether she is eligible for LTD benefits under the
AR 2214. Aetna did not point to any new medical records that demonstrated
functional capacity. Id. This omission makes my review difficult, if not impossible,
because I must look only to the plan administrator’s stated reasons to assess
whether the decision was arbitrary and capricious. See Spradley, 686 F.3d at 1140–
41; cf. Russ v. Colvin, 67 F. Supp. 3d 1274, 1279 (D. Colo. 2014) (“The court is
neither inclined nor, indeed, authorized, to search through the administrative
record in an attempt to pinpoint evidence that might support the ALJ’s findings,
and the Commissioner’s attempts, post hoc, to fill in the blanks on the ALJ’s behalf
are improper as well.” (citations omitted)). Indeed, the generic reference to “updated
medical records” without any specific references probably at least warrants
Nevertheless, I scoured the voluminous record for new records that changed
the evidentiary picture since SSA’s decision and found none. Indeed, one of the new
records Aetna points to in an attempt to defend the plan administrator’s decision on
appeal is an MRI that showed “deep white FLAIR hyperintensities,” which the
reviewing physician believed could be “sequela of chronic migraine headaches [or]
areas of gliosis from prior brain insult.” AR 1180; see Response Br. at 21, ECF No.
61. This supports, rather than undermines, Ms. West’s claim because it is objective
evidence of her brain injury and impairment. Another record—which includes a
note from Dr. Burger that Ms. West looks great and had plastic surgery—was before
the SSA. AR 1709–10; see Response Br. at 21, ECF No. 61. Moreover, Aetna fails to
note that the same note indicates that Ms. West was suffering from vertigo. AR
1710. While Dr. Burger did not believe the vertigo was related to the fusion surgery,
her conclusion hardly suggests that Ms. West had no impairment from the vertigo.
See id. After all, Dr. Burger opined that Ms. West was permanently disabled. AR
1817. Another note, this one from Dr. Hong, that suggests Ms. West’s pain was wellcontrolled on her then-current medication regime, was also before the SSA. AR
For these reasons, I give more weight to conflict between the SSA’s decision
and Aetna’s than I would if the plan administrator had provided a legitimate
explanation for the contradictory decisions. I emphasize, however, that I do not give
undue weight to this conflict—I only give it some weight as I examine Aetna’s
denial of benefits.
Ms. West argues that Aetna did not properly consider or weigh the relevant
evidence, and its denial of benefits was therefore arbitrary and capricious because it
was not based on substantial evidence. Specifically, she argues Aetna ignored
evidence pointing to disability, including the opinions of her treating physicians,
and ignored its own conclusion that she was disabled for the preceding four years.
Ms. West also argues that Aetna failed to provide a full statement of the basis for
its decision. Because I agree with Ms. West that Aetna’s decision was arbitrary and
capricious based on its failure to account for substantial evidence of disability, I do
not reach the latter two arguments.
A lack of substantial evidence to support findings may make a denial
arbitrary and capricious. Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1002–
03 (10th Cir. 2004), abrogated in part on other grounds by Glenn, 554 U.S. 105;
Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002) (“Indicia of
arbitrary and capricious decisions include lack of substantial evidence, mistake of
law, bad faith, and conflict of interest by the fiduciary.”). Substantial evidence is
evidence which a reasonable mind might accept as adequate to support the
conclusion reached—it is more than a scintilla but less than a preponderance.
Rekstad v. U.S. Bancorp., 451 F.3d 1114, 1119–20 (10th Cir. 2006). In determining
whether the evidence in support of the administrator’s decision is substantial, a
court must “‘take into account whatever in the record fairly detracts from its
weight.’” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994) (quoting Nieto
v. Heckler, 750 F.2d 59, 61 (10th Cir. 1984)). Notably, “[s]ubstantiality of the
evidence is based upon the record as whole.” Rekstad, 451 F.3d at 1120.
Courts may not impose requirements on plan administrators to give
particular evidence certain weight. Black & Decker Disability Plan v. Nord, 538
U.S. 822, 834 (2003). A plan administrator is not required, for example, to give
special weight to the opinions of a claimant’s treating physician. Id. at 833.
However, plan administrators cannot ignore claimant’s relevant evidence, including
readily available information that is not refuted by other evidence in the record.
Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir. 2004) (“[F]iduciaries
cannot shut their eyes to readily available information when the evidence in the
record suggests that the information might confirm the beneficiary’s theory of
entitlement and when they have little or no evidence in the record to refute that
theory.”); Caldwell, 287 F.3d at 1284. For example, while a plan administrator need
not give special weight to a claimant’s doctors, it may be unreasonable for the
administrator to credit the opinion of its own doctor who reviewed records over
opinions by treating physicians without sufficient explanation. Rasenack ex rel.
Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1325–26 (10th Cir. 2009); Mason v.
Reliance Standard Life Ins. Co., No. 14-cv-01415-MSK-NYW, 2015 WL 5719648, at
*7 (D. Colo. Sept. 30, 2015).
I conclude that Aetna’s decision here is unsupported by substantial evidence
for several reasons. First, I conclude the plan administrator erred by relying on Dr.
Sharma’s report without addressing the conflicting opinions and substantial
evidence to the contrary. Second, I conclude the plan administrator failed to
adequately address the objective evidence of brain injury when it terminated
benefits. Third, I conclude the plan administrator overlooked the evidence of
impairment reflected in the functional capacity assessment.
Because the evidence in the record clearly demonstrates that Ms. West is
entitled to benefits, I order Aetna to pay Ms. West back-due benefits plus interest at
the statutory rate and to reinstate her benefits.
Dr. Sharma’s Report
Although the plan administrator does not discuss Dr. Sharma’s report in any
detail, her conclusions track it almost verbatim. For example, Dr. Sharma opined
that despite her complaints, Ms. West had “adequate cognition, emotional control,
focus and concentration” to work. AR 2180. The plan administrator likewise
concluded Ms. West had “adequate cognition, emotional control, focus and
concentration” to work. AR 2214. Dr. Sharma concluded that despite Ms. West’s
reports of headaches, “she has made a satisfactory recovery from surgical
interventions requiring neck spine surgery.” AR 2208. The plan administrator
likewise concluded “she has made a satisfactory recovery from surgical
interventions requiring neck spine surgery.” AR 2213. Dr. Sharma concluded that
Ms. West’s 2013 brain MRI had “not shown any significant ongoing persistent
pathology” and the abnormality it did show “has no relation to the injury she
suffered.” AR 2209. By contrast, Dr. Wolf concluded Ms. West’s MR showed “lesions
in the [right] frontal lobe,” AR 1151, and the doctor who read the MRI concluded she
had frontal lobe lesions consistent with brain injury and migraines, AR 1180. The
plan administrator adopted Dr. Sharma’s interpretation and concluded that Ms.
West’s MRIs had “not shown any significant ongoing persistent pathology” and the
abnormality it did show “has no relation to the injury she suffered.” AR 2213. I
could go on, but suffice it to say that the plan administrator’s decision denying
benefits relies heavily on Dr. Sharma’s report. See generally AR 2210–15.
While there is of course nothing inherently wrong with relying on an
independent medical expert’s opinion, the plan administrator here adopted Dr.
Sharma’s findings only by improperly ignoring a large body of evidence that pointed
strongly to disability. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834
(2003) (“Plan administrators . . . may not arbitrarily refuse to credit a claimant’s
reliable evidence, including the opinions of a treating physician.”). For instance, Dr.
Wolff, who unlike Dr. Sharma had treated Ms. West for years, opined she was
disabled. He explained that “[m]any, if not all of Ms. West’s impairments are severe
and permanent.” AR 2169. While Dr. Sharma—who has no particular expertise in
neurology—dismissed Ms. West’s EEG results as essentially normal, Dr. Wolff—
who is board certified in neurology and neurophysiology—cited them as objective
evidence of her traumatic brain injury. AR 1151. In a comprehensive four-page,
single-spaced letter, Dr. Wolff cited dozens of medical records and objective test
results to support his conclusions. AR 2167–70. He also added that given his
medical expertise, training, and treatment of Ms. West, he believed he was
particularly qualified—and more qualified than a pain management expert—to
opine on Ms. West’s capabilities. AR 2167. But the plan administrator glossed over
Dr. Wolff’s opinion and the evidence supporting it. She described Dr. Wolff’s 2013
opinion that Ms. West could only sit for two hours, stand for one, and walk for one
without interruption. AR 2212. She described Dr. Wolff’s extensive 2014 letter
about Ms. West’s “severe and permanent” impairments in two sentences, conceding
that he “strongly” believes Ms. West was impaired. Aside from this rote (and brief)
summary of Dr. Wolff’s opinions, the plan administrator largely ignored them.
Rather than explaining why she rejected his opinion, she improperly recited Dr.
Sharma’s opinion as if it was indisputable fact. In my analysis here, I must consider
evidence that fairly detracts from the reliability of Dr. Sharma’s report. The fact
that he has no expertise in neurology and that his opinions on Ms. West’s brain
injury differed from a board-certified neurologist’s detracts from Dr. Sharma’s
Similarly, the plan administrator improperly ignored the opinions of all of
Ms. West’s other providers, none of whom agreed with Dr. Sharma’s conclusions.
Rasenack, 585 F.3d at 1326 (reversing denial of benefits where the plan
administrator “cherry-picked the information helpful to its decision to deny [the
claimant’s] claim and disregarded the contrary opinions of the medical professionals
who examined, treated, and interviewed [the claimant]”). To be sure, Aetna now
offers various post-hoc explanations for rejecting this evidence, but my review is
focused on the plan administrator’s actual, not conceivable, reasons for denying
benefits. See Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491
F.3d 1180, 1191 (10th Cir. 2007) (“[W]e will not permit ERISA claimants denied the
timely and specific explanation to which the law entitles them to be sandbagged by
after-the-fact plan interpretations devised for purposes of litigation.” (quotation
omitted), abrogated on other grounds by Glenn, 554 U.S. 105. I would hardly be
deferring to the plan administrator’s decision if I conjured up reasons she never
contemplated and affirmed on that basis.
The plan administrator similarly discounted the evidence that Ms. West
suffered from side effects from her medications. Dr. Sharma opined that although
Ms. West was dependent on opioids for pain management, there was no evidence
suggesting her “functional ability is directly impacted or affected by medication
effects or adverse drug reactions.” AR 2180. The plan administrator adopted this
opinion, concluding she had no “significant side effects” from her opioid dependence.
AR 2214. But the record is replete with evidence of negative side effects, including
indigestion, nausea, insomnia, exhaustion, dizziness, slow digestion, and hormonal
problems. E.g., AR 1139–40, 1453, 1925, 2170. Dr. Wolff concluded that when Ms.
West’s pain medications were “increased to a level where the pain is tolerated, the
side effects from these medications create other debilitating health problems that
also preclude her from functioning day to day.” AR 2170. Dr. Hong’s records
similarly note that even when Ms. West’s pain was well-controlled, she complained
of dizziness. AR 1925. While Ms. West told Dr. Hong her pain was well-controlled,
she did not say it was gone. In fact, she told him that she could not work in part
because of her ongoing neck pain and vertigo. AR 1929 (record from August 12,
I also find it puzzling that despite Aetna’s manful insistence in its pleadings
that the relevant records are the more recent ones, Dr. Sharma asked Dr. Peragine,
a pain management provider who had not seen Ms. West in well over a year, for a
peer-to-peer consultation. AR 2197. Nowhere does the plan administrator or Dr.
Sharma explain why Dr. Hong, Ms. West’s then-current pain management provider,
was not contacted instead. Given Dr. Sharma’s recognition of the importance of a
peer-to-peer consultation, it only follows that the peer-to-peer consultation should
be with the right provider. I am at a loss why Dr. Peragine would be a better choice
than Dr. Hong, particularly since the question was not whether Ms. West was ever
disabled—it was whether she was still disabled. Dr. Sharma’s failure to consult
with Ms. West’s current pain management provider further undermines the
reliability of his report.
While a plan administrator need not discuss all the evidence, her decision
must be “sufficiently supported by facts.” Nance, 294 F.3d at 1269 (quoting Kimber,
196 F.3d at 1098). By ignoring and discounting large swaths of medical evidence
and opinions, the plan administrator’s decision fails even that forgiving standard. I
recognize a plan administrator need not “pore over the record,” picking out and
addressing all evidence supporting payment or denial of a claim. Gaither v. Aetna
Life Ins. Co., 394 F.3d 792, 806–07 (10th Cir. 2004). But where, as here, a plan
administrator shuts her eyes to readily available evidence that suggests the
claimant is entitled to benefits, her decision is arbitrary and capricious. Id.
The opinion of Dr. Fiano, a psychologist who reviewed Ms. West’s files, does
not save the plan administrator’s decision. Dr. Fiano concluded there was no
evidence of neuropsychological impairment in the record. AR 2188. At the same
time, she acknowledged evidence of problems with memory and concentration. Id.
Dr. Fiano offers many possible alternative explanations for Ms. West’s memory and
concentration problems, including medication side effects and the impact of severe
pain. AR 2188. These explanations potentially support a finding of disability—just
not one based on neuropsychological impairment. Thus, Dr. Fiano’s opinion, which
is largely inconclusive as to the etiology of her impairments, does not support the
plan administrator’s conclusion that Ms. West can return to her previous job. And
even if it did, the plan administrator did not rely on it in her decision terminating
benefits, which means it cannot serve as a basis for affirmance. Cardoza, 708 F.3d
Long Term Disability Evaluation
The plan administrator’s decision barely touches the results of an entire day
of testing by occupational therapists. This is the only functional capacity evaluation
in the record, and there is nothing in the record to undermine it. The occupational
therapists who conducted the testing concluded it was reliable. The testing included
a battery of neuropsychological behavioral measures regarded as “one of the most
extensively validated vocational evaluation systems in the field.” AR 2097. It also
included over 30 different physical tests, for example, measuring Ms. West’s
physiological reactions as she lifted items. AR 2078. These measures include
validity factors that cannot be manipulated. Id. The testing revealed very strong
correlation between objective and subjective measures. Id. For instance, Ms. West’s
heart rate increased points during a lift test—a reflection of the substantial effort it
took her to lift. Id.
No evidence in the record refutes the results of these tests. The results
suggest that Ms. West’s subjective complaints are not exaggerated and that her
injury causes disabling impairments. In fact, assessments like this one are designed
to accurately and objectively measure how much an individual’s degree of pain or
fatigue limits her functional capabilities, one of the critical issues in assessing Ms.
West’s disability. Holmstrom v. Metlife, 615 F.3d 758, 770 (7th Cir. 2010). In these
circumstances, Aetna’s plan administrator was obligated to “explain why it found
the FCE unreliable.” Id. at 771.
Objective Evidence of Brain Injury
One final problem with the plan administrator’s decision is that it ignores the
objective evidence of Ms. West’s traumatic brain injury. Dr. Sharma had no
expertise in this area, but the plan administrator favored his interpretation of Ms.
West’s brain MRI over a board-certified neurologist’s. As a result, the plan
administrator denied Ms. West’s claim and concluded that her brain MRI did not
show abnormalities related to her injury, AR 2213, despite the contrary of
conclusions of Dr. Wolff as well as another physician who interpreted the MRI. The
plan administrator erred by ignoring this contrary evidence in her decision.
Effect of Aetna’s Conflict
Based on the overwhelming and unaddressed evidence of disability in the
record, I would likely conclude the plan administrator’s decision was arbitrary and
capricious even without evidence of a conflict. But the evidence of a conflict here
underscores the problem with Aetna’s decision. Based on essentially the same
evidence that was before SSA when it found her completely disabled, Aetna
concluded Ms. West was not disabled. While SSA did not have the opinions of
Aetna’s independent medical experts before it, the medical records before it were
largely the same. Yet with no meaningful explanation—and with ample evidence of
disability, evident in SSA’s award and the medical records themselves—Aetna
adopted Dr. Sharma’s opinion over those of Ms. West’s treating physicians. As Dr.
Wolff explained, “[e]very one of Ms. West’s . . . treating physicians, the Social
Security Administration, and O.T. Resources have all concluded Ms. West is unable
to perform any sedentary level position.” AR 2167–70. The plan administrator’s
unexplained and largely wholesale adoption of Dr. Sharma’s conclusions, despite
ample evidence to the contrary, suggests that its financial conflict of interest
skewed its decision-making. See Pinto, 217 F.3d 1291 (noting that insurance
company “has a financial interest in denying claims in order to remain economically
viable as well as competitive within the insurance industry”).
In sum, the plan administrator’s decision was not based on substantial
evidence, particularly in light of the record as a whole. She largely ignored the
conclusions of Ms. West’s treating physicians in favor of Dr. Sharma’s opinion,
despite his relative lack of expertise. Because I conclude that “the evidence in the
record clearly shows that the claimant is entitled to benefits, an order awarding
such benefits is appropriate.” See Flinders, 491 F.3d at 1194.
Both parties request an award of attorney’s fees. The provisions of 29 U.S.C.
§ 1132(g) permits a court, in its discretion, to award a reasonable attorney fee to
either party in an ERISA action such as this case. When deciding whether to award
attorney’s fees, a court should consider: “(1) the degree of the opposing party’s
culpability or bad faith; (2) the opposing party’s ability to satisfy an award of fees;
(3) whether an award of fees would deter others from acting under similar
circumstances; (4) whether the party requesting fees sought to benefit all
participants and beneficiaries of an ERISA plan or to resolve a significant legal
question regarding ERISA; and (5) the relative merits of the parties’ positions.”
Cardoza, 708 F.3d at 1207. “No single factor is dispositive and a court need not
consider every factor in every case.” Id. Based on a consideration of these factors, I
award Ms. West reasonable attorneys’ fees and costs. Aetna’s conflict, its ability to
pay, and its flawed decision denying benefits all militate in favor of the award.
The parties’ joint motion for judgment is GRANTED (ECF No. 68). Because
Aetna’s decision denying benefits was arbitrary and capricious, I will ENTER
JUDGMENT in favor of Ms. West. It is further ORDERED that Aetna shall pay Ms.
West back-due benefits plus interest at the statutory rate and shall reinstate her
benefits. I also AWARD Ms. West reasonable attorneys’ fees and costs.
Ms. West shall file a brief and accounting of the back-due benefits plus
interest, attorney fees, and costs she seeks to recover from Aetna on or before March
6, 2018. Aetna shall file a response brief and any objections to Ms. West’s
accounting on or before March 20, 2018. Ms. West may file a reply brief on or before
March 30, 2018.
Once total amount of the back-due benefits plus interest, attorney fees, and
costs is fixed by the Court, the clerk shall enter final judgment.
, 2018 in Denver, Colorado.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK
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