Mark v. Aetna Life Insurance Company et al

Filing 44

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 38 Joint MOTION for Determination, by Magistrate Judge Michael J. Watanabe on 4/25/2018. It is hereby RECOMMENDED that Defendants denial of Marks STD claim be REVERSED, and that the case be REMANDED with instructions to fully consider the entire record and to request and obtain additional documentation if necessary to determine Marks eligibility for short term disability benefits, consistent with this Recommendation and any other orders Judge Martinez deems appropriate. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00441-WJM-MJW
JULIA MARK,
Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY and
FEDEX OFFICE AND PRINT SERVICES, INC.,
Defendant.

REPORT AND RECOMMENDATION ON
THE PARTIES’ JOINT MOTION FOR DETERMINATION
(DOCKET NO. 38)

Michael J. Watanabe
United States Magistrate Judge

This case is before the Court on Plaintiff Julia Mark’s (“Mark”) Complaint (Docket
No. 1) to recover short term disability (“STD”) benefits under section 29 U.S.C. §
1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001, et seq. Judge William J. Martinez referred the parties’ Joint Motion for
Determination (Docket No. 38) to the undersigned Magistrate Judge for a recommended
disposition. (Docket No. 34.) The Court has reviewed the Administrative Record (“AR”)
(Docket No. 25), Mark’s Opening Brief (Docket No. 29), Defendants Aetna Life
Insurance Company (“Aetna”) and FedEx Office and Print Services, Inc.’s (“FedEx
Office”) (collectively “Defendants”) Response Brief (Docket No. 33), and Mark’s Reply
Brief. (Docket No. 37.) The Court has taken judicial notice of the Court’s file, and

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considered the applicable Federal Rules of Civil Procedure and case law. The Court
now being fully informed makes the following findings of fact, conclusions of law, and
recommendation.
I. BACKGROUND
a. Procedural History
Mark was employed by FedEx Office and sought medical benefits under the
FedEx Office and Print Services, Inc. Short Term Disability Plan (the “Plan”). The Plan
is self-funded by FedEx Office. (AR 8.) Aetna acts as the Claims Administrator under
the Plan. (AR 4.) FedEx Office has delegated to Aetna the authority “to interpret the
Plan’s provisions in its sole and exclusive discretion in accordance with its terms with
respect to matters properly brought before it . . . including, but not limited to, matters
relating to the eligibility of a claimant for benefits under the Plan.” (AR 31.) Aetna’s
determination “shall be final, subject only to a determination by a court of competent
jurisdiction that the Claims Administrator’s decision was arbitrary and capricious.” (AR
32.)
Mark sustained injuries to her mid-back, neck, right ankle, and, most significantly,
left knee when she fell on a sidewalk. (AR 397.) 1 She was placed on leave and her last
day of work was March 10, 2016. (AR 200.) As a production specialist, Mark’s job duties
included processing large orders, operating and maintaining equipment, and providing
customer service. (AR 223.) The job functions required the ability to stand the entire

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Plaintiff is also profoundly hearing impaired, although she does not argue that she was
unable to work at FedEx Office based on this impairment. (Docket No. 29 at 2 n. 2.)
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shift, move and lift 55 pounds, and consistently bend/twist at the waist and knees. (Id.) 2
Given her injuries and her job requirements, Mark filed a claim for STD benefits on May
24, 2016. (AR 200-01, 782-85.) On May 31, 2016, Aetna determined Mark was disabled
under the Plan and approved STD benefits from March 11, 2016 through May 26, 2016.
(AR 230-31.)
On June 8, 2016, Aetna informed Mark it was no longer approving her STD
benefits as of May 27, 2016 because it determined “that there are insufficient clinical
exam findings to support your inability to perform essential functions of your own
occupation.” (AR 245-46.) Thereafter, Aetna requested, and Mark supplied, additional
medical records, including physical therapy notes. Aetna also requested “diagnostic test
results” and “supporting clinical information” from Mark and her treating physician. Mark
eventually appealed the denial of STD benefits on August 30, 2016. (AR 312-47.) Aetna
denied her appeal on November 16, 2016, again finding that “there are no significant
objective findings to substantiate that a functional impairment exists that would render
you unable to perform your heavy job duties as a Production Specialist effective
05/27/16.” (AR 391-92.) Mark then filed the Complaint at issue on February 17, 2017.
(Docket No. 1.)
b. The Relevant Plan Provisions
There are essentially two Plan provisions at issue here. First, the Plan provides
that “Disability or Disabled”
shall mean a sickness, illness, or injury that (1) limits a
Covered Team Member from performing the material and
substantial duties of his or her regular occupation due to the
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In her claim for benefits, Mark indicated that she was required to lift up to 100 pounds.
(AR 784.)
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sickness, illness, or injury; and (2) results in the Covered
Team Member having a 20% or more loss in Weekly
Earnings due to the same sickness, illness, or injury. A
Covered Team Member’s regular occupation is the
occupation that the Covered Team Member routinely
performed at the time the Covered Team Member’s
Disability began. However, a Covered Team Member shall
not be deemed to be Disabled or under a Disability unless
the Team Member is, during the entire period of Disability,
under the direct regular care and treatment of a Practitioner
and such Disability is substantiated by significant objective
findings which are defined as signs which are noted on a test
or medical exam and which are considered significant
anatomical, physiological or psychological abnormalities
which can be observed apart from the individual’s
symptoms. A Covered Team Member will be required to
provide proof of continuing Disability within 30 days of any
request by the Claims Administrator or Disability Benefits will
be terminated. In the absence of significant objective
findings, conflicts with managers, shifts and/or work place
setting will not be factors supporting disability under the
Plan.
(AR 5-6.)
Second, the “Proof of Disability” provision states:
No benefits shall be paid under the Plan unless and until the
Claims Administrator has received the Covered Team
Member’s application for benefits and information sufficient
for the Claims Administrator to determine pursuant to the
terms of the Plan that a Disability exists. Such information
may, as the Claims Administrator shall determine, consist of
a certification from the Team Member’s attending
Practitioner in the form prescribed by the Claims
Administrator, information in the form of personal references,
narrative reports, pathology reports, x-rays and any other
medical records or other information as may be required by
the Claims Administrator. . . . The burden of proof for
establishing a disability is on the Covered Team Member.
(AR 24-5.)

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c. Summary of Medical Evidence
Mark was treated for her injuries by her primary care physician, Dr. Teng Chang,
beginning on March 16, 2016. (AR 221.) 3 Her most significant injury was to her left
knee. She followed up with Dr. Chang several times in 2016, both before and after her
STD claim was denied on June 8, 2016. The AR includes notes from visits on March 16,
March 31, April 28, May 26, June 30, July 14, and September 13, 2016. (AR 217-21,
242, 258-9, and 451.) 4 Dr. Chang provided Aetna with several Attending Provider
Statements (“APS”), in which he stated that Mark cannot bend, twist, or lift, as it
aggravates her knee; that she cannot work more than six hours per day, five days per
week; that she has a 10 pound lifting restriction and cannot push or pull anything more
than 10 pounds; and that she must be able to sit, ice, and elevate her knee. (AR 221,
242, and 260.) Dr. Chang stated that her recovery and improvement times were
unknown, but noted in the last APS, dated July 19, 2016, that Mark had recently had
improved in the past month. (AR at 260.) He also wrote narrative reports concerning
Mark on July 14, August 12, and August 18, 2016, which reiterated the above
restrictions. (AR 252, 272, and 283.)
Mark also underwent physical therapy, and had 44 visits between her fall and
October 3, 2016. (AR 388.) On July 20, 2016, after 26 visits, Mark’s physical therapist
provided Aetna with an evaluation that stated that Mark had “significant” swelling above
the left knee, 95 percent range of motion in both knees, and subjective knee pain of
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Mark apparently saw Dr. Chang for a physical examination on March 11, 2016. (AR
202.) However, the Court cannot locate in the AR the office notes from that visit; the first
notes are from March 16, 2016. (AR 217.)
4

The AR contains several duplicate copies of the medical records. The Court will
attempt to cite only to the first to appear chronologically, for clarity’s sake.
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2/10. (AR 268.) The physical therapist’s assessment was that Mark had a “multi regional
mechanical dysfunction secondary to a fall,” and under “Joint Mobility,” he noted the
following: “Hypomobility at T8-T10 and T11-T12, thoracolumbar junction restriction, stiff
hips, stiff L4-L5, L talocrural joint, L sub talar joint and midfoot stiffness.” (Id.) The
physical therapist also performed three “functional movement screens” on July 20,
August 8, and September 26, 2016. (AR 273-74, 278, and 376.) The notes connected
with the August 8 screen indicate that Mark had issues with her balance, although Mark
reported to the physical therapist that her “[k]nee has not given her much pain.” (AR
273-74.) Mark’s physical therapy notes indicate that her condition generally improved
through the summer of 2016. (AR 288-305.) In September 2016, although significant left
knee swelling was documented, the notes indicate that Mark’s “pain and ROM has
drastically improved.” (AR 372.)
On October 18, 2016, Dr. William C. Andrews reviewed Mark’s records and
concluded that that “there is no significant objective clinical documentation that reveals
a functional impairment that would preclude the claimant from performing the essential
duties of her own occupation.” (AR 388.) Dr. Andrews went on:
There are simply no objective findings presented on any
examination in this record. There are no radiographic
findings. There is nothing to support anything either than a
painful knee. No diagnosis is supportable in total absence of
any physical examination findings or radiographic findings.
There were also complaints of some back pain, but I did not
see any radiographic examination. On radiographic
evaluation, I did not see any findings on examination to
support significant findings relative to the back pain.
Basically, Dr. Chang's notes have no physical examination
findings on them. The physical therapy notes do not have
much more.
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I did not see any sign of any recent medications relative to
this injury.
(Id.)
d. Denial of Appeal
On November 16, 2016, Aetna affirmed the denial of Mark’s STD benefits. (AR
390-92.) The Aetna Appeal Review Committee (the “Committee”), after summarizing the
medical records, found that “[a]lthough you had complaints of pain in your left knee,
mid-back, neck and right ankle pain and were placed on restrictions through 11/20/16,
no significant correlating exam findings were provided.” (AR 392.) Because “[t]here was
no documentation of any diagnostic test results or significant measured deficits in range
of motion or strength, knee instability, use of assistive devices or neurological deficits[,] .
. . the clinical data fails to support a continued functional impairment effective 05/27/16.”
(Id.) The Committee concluded that the “Plan is specific regarding the requirement of
significant objective findings to substantiate eligibility for disability benefits and this
requirement was not met in your case.” (Id.)
II. LEGAL STANDARD
Judge Martinez has set forth the standard of review in an ERISA action as
follows:
ERISA governs employee benefit plans, including disability
benefit plans. 29 U.S.C. §§ 1101 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) (internal quotation marks omitted; alterations
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incorporated). Federal courts have exclusive jurisdiction over
such suits, as ERISA preempts most relevant state laws. 29
U.S.C. § 1144(a).
The Supreme Court has held that “a denial of benefits
challenged under [the civil enforcement provision of ERISA,
29 U.S.C.] § 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.” Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). In such a
situation, the Court determines whether the denial of benefits
was arbitrary and capricious. Id.
Under the arbitrary and capricious standard, the
administrator’s decision need not be the only logical one or
the best one; the decision will be upheld provided that it is
“grounded on any reasonable basis.” Kimber v. Thiokol
Corp., 196 F.3d 1092, 1098 (10th Cir. 1999). “The reviewing
court need only assure that the administrator’s decision falls
somewhere on a continuum of reasonableness—even if on
the low end.” Nance v. Sun Life Assurance Co. of Can., 294
F.3d 1263, 1269 (10th Cir. 2002).
Lamont v. Connecticut Gen. Life Ins. Co., 215 F. Supp. 3d 1070, 1077 (D. Colo. 2016).
The Plan gives Aetna the discretionary authority to determine eligibility for
benefits. As such, the Court applies an “arbitrary and capricious” standard of review,
and “the decision will be upheld so long as it is predicated on a reasoned basis” or is
supported by substantial evidence. Adamson v. UNUM Life Ins. Co. of Am., 455 F.3d
1209, 1212 (10th Cir. 2006).
III. ANALYSIS
Mark argues that Defendants’ denial of her STD claim was arbitrary and
capricious and should be overturned. Mark claims that Defendants (1) ignored the
subjective and objective medical evidence that she presented; (2) improperly

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disregarded her treating physician’s opinions and her complaints of pain; and (3) failed
to perform an in-person examination. She requests an order awarding her the full STD
benefits available under Defendants’ policy, together with reasonable attorney fees,
costs, and pre-judgment interest, as well as an order directing Defendants to open and
process her previously rejected long term disability application. Defendants maintain
that there is substantial evidence to support the decision that Mark did not meet the
definition of disability under the Plan.
In determining whether Mark has met her burden of demonstrating that
Defendants’ denial of STD benefits effective May 27, 2016 was arbitrary and capricious;
i.e., whether they lacked a reasonable basis or were not supported by substantial
evidence, see McClenahan v. Metro. Life Ins. Co., 416 F. App’x 693, 697 (10th Cir.
2011) (unpublished), the Court will consider whether a “reasonable mind might accept
[it] as adequate to support the conclusion reached by the [decisionmaker].” Sandoval v.
Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992) (citation omitted). While
the decisionmaker must take into account “whatever in the record fairly detracts from”
its determination, substantial evidence requires “more than a scintilla but less than a
preponderance.” Id. (citation omitted). Further, the Court notes that Defendants were
not required to “accord special weight to the opinions of a claimant’s physician; nor may
courts impose on plan administrators a discrete burden of explanation when they credit
reliable evidence that conflicts with a treating physician’s evaluation.” Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003). The Court will not weigh or evaluate
the medical evidence in record. Williams v. Metro. Life Ins. Co., 459 F. App’x 719, 726

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n. 4 (10th Cir. 2012) (unpublished). Thus, Mark must establish that there was more than
a mere disagreement among physicians regarding appropriate treatment.
The Court now turns to the medical evidence submitted to Aetna by Mark and her
treatment providers. Mark concedes that it is not unreasonable for Defendants to
require objective evidence of disability. Instead, she argues that Dr. Chang and the
physical therapist documented “significant” knee swelling, reports of severe pain,
hypomobility of the knee and spine, antalgic gait, and decreased range of motion and
loss of strength, which are all objective findings that were ignored by the Defendants.
Mark also points to the functional movement screens, which confirmed, among other
things, an extreme lack of balance. Therefore, Defendants’ prioritizing clinical exams
and x-rays over other objective evidence, such as Mark’s doctor’s and therapist’s
observations, was an “overly restrictive” application of the Plan and was arbitrary and
capricious under ERISA.
Mark also notes that Aetna had concluded that she was disabled as defined by
the Plan from March 11, 2016 to May 26, 2016, based only on the records of Dr. Chang.
Dr. Chang’s records are substantially similar both before and after May 27, 2016, yet
Mark argues that Defendants do not explain what changed in terms of “clinical data”
after that point, especially given that more medical evidence was subsequently provided
to substantiate Mark’s claims.
The Court agrees with Plaintiff that Dr. Andrews goes too far when he writes that
“[t]here are simply no objective findings presented on any examination in this record.”
(AR 388.) Swelling, for example, when it is actually observed by medical personnel, as it

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was here, is objective data, as is an observed limp, or decreased range of motion. Dr.
Andrews does not mention any of these objective findings.
However, Dr. Andrews did not make the final determination whether Mark was
entitled to STD benefits. Rather, Aetna was tasked to make this determination, and the
Committee’s November 16, 2016 Appeal Determination does contain explicit references
to the findings regarding swelling, hypomobility, antalgic gait, range of motion, and
multilevel thoracic mechanical dysfunction. (AR 391-92.) While the Committee does not
go into great detail analyzing these conditions, it does not merely recite the medical
data, as Mark argues. In several places, the Committee notes the lack of “measured
findings” to support the medical exams. Thus, for example, the Committee
acknowledged that on October 3, 2016, Mark was “assessed to be weaker on the left
side,” but points out that “the specific body part or measured findings were not
provided.” (AR 392.) Moreover, the Appeals Determination accurately reflects that
Mark’s medical records show a gradual improvement in her conditions through the
summer and early fall of 2016, with some documented setbacks. This undermines
Mark’s claim that she “consistently reported pain at every doctor and physical therapy
visit.” For instance, on May 26, 2016, she rated her knee pain at 3/10. (AR 220) A
month later, she reported knee pain of 2/10. (AR 259.) July 2016 notes indicate that her
“knee pain is now good” and “knee pain continues to decrease.” (AR 258.) On August 8,
2016, a functional movement screen was performed where Mark reported that her
“[k]nee has not given her much pain, just stiffness after prolonged activity.” (AR 306.)
Even the September 13, 2016 physical therapy report that lists all of Mark’s objective

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findings (slightly antalgic gait, hypomobility, significant swelling above the left knee, etc.)
contains Mark’s subjective report that her pain and range of motion has “drastically
improved.” (AR 372.)
While the medical records seem to indicate that Mark’s condition was improving,
Dr. Chang’s work restrictions remained essentially unchanged. Thus, Aetna
unsurprisingly requested updated records from Dr. Chang on multiple occasions. (AR
236, 264 and 279.) Each of these requests asked for “diagnostic test results.” (Id.) Each
stated that “[t]he information requested is essential to consider ‘authorization of short
term disability benefits’ for the patient. No benefits (wage replacement) will be
authorized without this information.” (Id.) Dr. Chang never performed any diagnostic
tests or, if he did, never provided Aetna with the results. Thus, Mark’s argument that
Defendants offer no explanation for why Dr. Chang’s opinions, “based as they were on
multiple exams and obvious objective findings, were disregarded,” is unavailing. Dr.
Chang’s opinions were disregarded because he did not provide any clinical or
diagnostic test results to substantiate them. Mark herself was informed that Aetna had
“not received objective clinical information to support your disability . . . Please inform
your Primary Care Provider or the Physical Therapist that they can fax supporting
clinical information they receive at any time. . . . They do not have to wait for my
request.” (AR 281) (emphasis added). Mark could have asked Dr. Chang to perform
diagnostic tests, or gone to a different doctor to have them done, and supplied those
results to Aetna.

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However, the Court must bear in mind that Mark sought disability benefits and
pursued her appeal without representation. The AR clearly indicates that she was trying
her best to cooperate with Aetna and provide the requested documentation. In truth, Dr.
Chang dropped the ball on his end, a fact that Aetna knew or should have known. “An
ERISA fiduciary presented with a claim that a little more evidence may prove valid
should seek to get to the truth of the matter.” Gaither v. Aetna Life Ins. Co., 394 F.3d
792, 808 (10th Cir. 2004). Aetna had a mechanism to obtain that additional evidence:
an independent medical exam. While Defendants are technically correct that the Plan
does not mandate an in-person medical examination (AR 24), Aetna could not “shut [its]
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.” Id.at 807. Given the obvious
deficiencies of Dr. Andrew’s record review concerning Mark’s objective conditions,
coupled with Dr. Chang’s inexplicable inability to gather clinical data, an independent
medical exam was warranted. See Mason v. Reliance Standard Life Ins. Co., No. 14CV-01415-MSK-NYW, 2015 WL 5719648 (D. Colo. Sept. 30, 2015) (unpublished).
Aetna’s failure to conduct one, under these circumstances, was arbitrary and capricious.
Moreover, while the Appeals Determination references the functional movement
screens, it fails to address how these objective test results affected Mark’s ability to
perform her job duties. For instance, the August 8, 2018 functional movement screen
indicates that Mark had an “extreme” lack of balance, lacked core strength, and had
stability issues. (AR 273-74.) The Court can easily see these conditions impairing

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Mark’s ability to “move and lift 55 pounds,” consistently bend/twist at the waist and
knees, and operate, clean, and repair “binding and other auxiliary equipment,” all of
which are indisputably part of her job responsibilities. However, Aetna failed to analyze
this information. Instead, Defendants now argue that the functional movement screens
offer no context for the resulting scores or explain how the test results implicate Mark’s
ability to perform her job duties. If Aetna had trouble interpreting the screens of placing
them in context, it could and should have asked for additional or clarifying information.
See Gaither, 394 F.3d at 807 (“‘[I]f the plan administrators believe that more information
is needed to make a reasoned decision, they must ask for it.’” (quoting Gilbertson v.
Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003) (further citations omitted)
(emphasis in original)). Aetna failed to do so, and thus acted arbitrarily and capriciously.
IV. RECOMMENDATION
For the foregoing reasons, it is hereby RECOMMENDED that Defendants’ denial
of Mark’s STD claim be REVERSED, and that the case be REMANDED with
instructions to fully consider the entire record and to request and obtain additional
documentation if necessary to determine Mark’s eligibility for short term disability
benefits, consistent with this Recommendation and any other orders Judge Martinez
deems appropriate.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections

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within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions,
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).

Dated:

April 25, 2018
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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