Schuman v. Aetna Life Ins Co et al

Filing 81

ORDER granting in part and denying in part 36 Motion for Summary Judgment; denying 37 Motion for Summary Judgment; denying 62 Motion for Civil Penalties; denying 69 Motion for Costs regarding the Motion for Civil Penalties. The de fendants' motion for summary judgment is granted in part with respect to Schuman's equitable claims and denied in part, insofar as they have not shown that there is no genuine dispute of material fact regarding either the appropriate standa rd of review for the claims determination or whether the determination should be affirmed under any standard. Schuman's cross-motion for summary judgment is also denied. Schuman's motion for civil penalties is denied, and the Administrative Committee's motion for costs in defending that motion is also denied.Because the Administrative Record does not provide me with sufficient evidence to determine whether the "reasonable occupation" standard has been correctly applied, however, I grant the defendants' alternative request for remand for further consideration of that issue.Signed by Judge Stefan R. Underhill on 3/20/2017. (Buttrick, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JEFF SCHUMAN,
Plaintiff,

No. 3:15-cv-1006 (SRU)

v.
AETNA LIFE INS. CO, et al.,
Defendants.
ORDER
On July 1, 2015, the plaintiff, Jeff Schuman, filed a complaint against the defendants,
Ahold USA, Inc.’s Master Welfare Benefit Plan, the Administrative Committee of Ahold USA,
Inc. as Plan Administrator, and Aetna Life Insurance Company as Claims Administrator,
alleging that they violated the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1001, et seq., by failing to provide him with all of the disability benefits to which he was
entitled. Complaint (doc. 1); Amended Complaint (doc. 32-1).1 On May 27, 2016, the parties
filed cross-motions for summary judgment. (docs. 36 and 37) Schuman has also filed a motion
for civil penalties, alleging that the defendants violated ERISA, 29 U.S.C. § 1132(c), by failing
to disclose all policy documents in the timeframe required by the statute. (doc. 62)
For the following reasons, I grant in part and deny in part the defendants’ motion for
summary judgment; deny Schuman’s cross-motion for summary judgment; and deny Schuman’s
motion for civil penalties. In addition, I grant the defendants’ alternative request and remand the
matter for further development of the record.

1

The motions discussed in this Order were filed before the amended complaint was approved; however, the
amended complaint is substantially similar to the initial complaint. The main addition is several subparts to
paragraph 16 describing the alleged procedural defects of the defendants’ process in more detail, an issue discussed
at length in the briefing around the plaintiff’s motion for summary judgment.

I.

Standard of Review
Summary judgment is appropriate when the record demonstrates that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment).
When ruling on a summary judgment motion, the court must construe the facts of record
in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398
U.S. 144, 158–59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d
Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the
nonmoving party”). When a motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving party may not rest upon the
mere allegations or denials of the pleadings, but must present sufficient probative evidence to
establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also
Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving
party submits evidence that is “merely colorable,” or is not “significantly probative,” summary
judgment may be granted. Anderson, 477 U.S. at 249–50.
The mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material
2

fact. As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.
Id. at 247–48. To present a “genuine” issue of material fact, there must be contradictory
evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at
248.
If the nonmoving party has failed to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to
any material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23; accord
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s
burden satisfied if he can point to an absence of evidence to support an essential element of
nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary
judgment may enter. Celotex, 477 U.S. at 323.
II.

Background
Unless otherwise indicated, the following facts are drawn from statements in the parties’

Local Rule 56(a)(1) Statements to which the other side did not object. See Defs.’ L.R. 56(a)(1)
Stmt. (doc. 36-6); Pl.’s L.R. 56(a)(1) Stmt. (doc. 37-2).
A. Schuman’s Disability Benefit Plan
Prior to becoming disabled, Jeff Schuman had worked as a pharmacist in retail stores for
thirty-five years. At the time that he became disabled, he was employed by Ahold USA, Inc.

3

(“Ahold”) as a retail pharmacy manager at a Stop & Shop Supermarket (“Stop & Shop”).2
Schuman’s position required frequent walking, constant standing, and lifting up to 20 pounds. He
became disabled from that position on April 30, 2013, and has remained unable to perform that
job.
Schuman was eligible to participate in a long- and short-term disability plan provided as
part of a group insurance plan between Aetna Life Insurance Company (“Aetna”) and Ahold. As
discussed further below, the parties adamantly disagree about which “version” of that policy
should apply here. All of the potential policies provide for six months of short term disability
(“STD”) benefits, followed by a period of long term disability benefits (“LTD”). All versions of
the policy then provided an initial period in which LTD benefits would be paid if the claimant
met the “own occupation” test, which awarded benefits:
on any day that:
You cannot perform the material duties of your own occupation solely
because of an illness, injury or disabling pregnancy related condition; and
Your earnings are 80% or less of your adjusted predisability earnings.
See Administrative Record (“AR”) at 9, 102; ADD at 1454, 1484.3
At the end of the period in which the “own occupation” test applied, LTD benefits would
pay for an additional period if the claimant met the “reasonable occupation” test, meaning he
could not perform the material duties of any reasonable occupation “solely because of” his

As discussed further below, the parties strenuously debate whether Schuman was an “Ahold” employee or a “Stop
& Shop” employee. The defendants have submitted Schuman’s Form W-2 for 2011, which indicates that he was
employed by “S&S Credit Co., Inc.,” along with an affidavit asserting that “S&S Credit Co., Inc.” is the previous
corporate name of Stop & Shop and that Stop & Shop is an operating unit of Ahold. Decl. of Laura Eckert at ¶ 1, ¶
19 and Ex. H (docs. 69 and 69-9).
2

3

Schuman has provided additional pages of material that were not included in the Administrative Record; however,
he has included page numbers on those documents that follow from the Administrative Record. I will refer to
Schuman’s additional pages as “ADD at”.

4

disability. See AR at 9, 102; ADD at 1454, 1484. A “reasonable occupation” is defined in all of
the policies as:
[a]ny 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.
See AR at 23, 119; ADD at 1471, 1499.
B. Versions of the Certificate
Four different LTD certificates are discussed in the parties’ briefing. Although the
defendants object to the terminology, they have adopted Schuman’s labeling of the certificates as
Versions One, Two, Three, and Four. I will do the same.
The dispute over which version of the certificate applies apparently did not arise until
July 2014. Prior to that date, Schuman had been informed multiple times by Aetna
representatives that the “own occupation” test would only last for a twelve-month period. For
instance, in a September 4, 2013 letter, Kimberly Nee, a representative of Aetna, sent Schuman a
letter stating that Schuman would receive LTD benefits for twelve months under the “own
occupation” test, after which time the “reasonable occupation” test would apply. AR at 815. In a
September 13, 2013 letter, Nee informed Schuman that he was “eligible to receive monthly
benefits effective 10/27/2013, and continuing for up to twelve months as long as you remain
totally disabled from your own occupation.” AR at 819. Nee also indicated on September 16,
September 26, and December 12, 2013 that the “own occupation” test would be applied only for
the first twelve-month period.4 In a letter dated March 27, 2014, Nee once again informed

4

Schuman largely admits that those statements were made, but denies that they accurately described his policy.

5

Schuman that his benefits under the “own occupation” test would end on October 26, 2014,
twelve months after the beginning of his LTD period. Schuman did not question or object to
Nee’s repeated statements that the “own occupation” test would only apply for twelve months
until July 2014, and indeed appears to have asked several questions about the “reasonable
occupation” test in 2013. See AR at 203 (note on September 26, 2013 stating that “EE also asked
about RW of 60% after a year of benefits”); AR at 555 (note between July 17 and July 21, 2014
stating that “EE asked about the change in disability in Oct[ober] and how this [apparently
indicating a recent surgery] affects it”).
1. Version One, AR at 1–31
Schuman asserts in an undated declaration submitted with his attempt to reopen his
appeal that he downloaded a copy of Version One before May 2013. AR at 1033. In a
Declaration dated February 25, 2016, Schuman asserts that he received Version One “through
my company’s intranet site or by mail, before I left . . . in May 2013.” ADD at 1510 (doc. No
35). Kimberly Cline, an Ahold employee, also sent Schuman a copy of Version One on July 30,
2014 in response to his request to receive a copy of his policy.
Version One states that the “own occupation” test applies for a twenty-four–month
period. AR at 9. The eligible class identified in Version One is defined as follows:
You are in an eligible class if:
You are a regular full-time active executive or salary employees [sic], as
defined by your employer.
AR at 6. The defendants assert that Version One does not apply to Schuman because it applies
only to employees at the Carlisle unit of Ahold or Ahold Financial Services. They have not,
however, shown that Version One actually includes that limitation in its text; rather, they have
asserted that limitation in an interrogatory response. Defs’ LR 56(a)(1) Stmt. at ¶ 78.
6

2. Version Two, AR at 94–124
Version Two apparently was not provided to Schuman until it was produced as part of the
Administrative Record. See Defs.’ Sum. J. Br. at 2 n.1. It includes an “own occupation” test of
twelve months. AR at 102. Version Two has an effective date of January 1, 2012, and an issue
date of January 11, 2012. AR at 96. It was “signed” by Mark Bertolini as CEO. Id. The
defendants assert that Version Two is the only “version” of the Certificate that applies to
Schuman. They point to the “eligible class” definition, which is as follows:
You are in an eligible class if:
You are a regular full-time Executive , salaried, Non-Union Hourly, and
Union 99 Associates[sic] employed by Stop and Shop, Giant of Maryland,
and American Sales Company employees [sic], as defined by your
employer.
AR at 99. Schuman asserts that he was not a Stop & Shop employee, but rather an employee of
Ahold, and accordingly is not a member of the eligible class.
3. Version Three, ADD at 1446–76
Schuman received Version Three in the following manner: when Cline sent Schuman
Version One, which has a twenty-four–month “own occupation” test period, she also provided
him with a summary plan description (“SPD”) dated January 1, 2011, stating that the “own
occupation” test only applied for twelve months. Schuman pointed out the inconsistency. Traci
McAllen, a manager of Benefits Administration at Ahold, was notified and emailed Ronald
Mattson, Aetna’s Group Insurance Account Executive responsible for the Ahold account, about
the inconsistency. Mattson responded on August 1, 2014, stating:
This should absolutely read 12 months Own Occupation. It’s been that
way for years on the Stop & Shop / Giant of Maryland plans. I’m having
the policy updated TODAY.

7

We updated the policy in 2012 to make sure we had clean documents
across the board, and someone missed this very important provision.
My apologies. I have reviewed the entire document and am making
another change to the Eligibility statement to make sure it indicates Nonunion hourly associates.
[Mattson included a copy of what appears to be the eligible class
definition in Version One.]
The Giant-Carlyle policy correctly indicates 24 months Own Occ.
ADD at 1525. Later that day, Mattson provided McAllen with Version Three. Id. On August 25,
2014, McAllen sent Version Three to Schuman, stating in her transmittal email that the correct
time for the “own occupation” test was twelve months. McAllen described the twenty-four
month “own occupation” period as “an administrative error.” ADD at 1504.
Version Three contains the same eligible class definition as Version Two, ADD at 1451;
however, it also contains an inconsistency. It states that the “own occupation” test applies for
twenty-four months, but that the “reasonable occupation” test applies after the first twelve
months. ADD at 1454.
4. Version Four, ADD at 1477–1503
Schuman was provided with Version Four apparently after he identified the inconsistency
in Version Three in a call to Robert Watts, Director of Benefits at Ahold, on August 25, 2014.
ADD at 1509. Watts attached Version Four along with an email to Schuman on August 29, 2014,
stating, in relevant part:
We understand that Aetna, the Company’s LTD insurer and claims
administrator, provided to you a Certificate that contained an administrative
error in that it mistakenly set forth a period of 24 months for the test of
disability. The correct time period under the LTD Plan is 12 months. I have
enclosed a corrected Certificate [Version Four] which, as you will see,
includes the 12-month time period.
ADD at 1509.
8

Version Four states that the “own occupation” test applies for twelve months, and after
those twelve months, the “reasonable occupation” test applies. ADD at 1484. Version Four states
on its cover page that it was “Prepared Exclusively for Stop and Shop / Giant of Maryland,” but
does not mention those entities in its eligible class definition, which is as follows:
You are in an eligible class if:
You are a regular full-time employee, as defined by your employer.
ADD at 1481. Version Four has an effective date of January 1, 2010, and an issue date of
September 13, 2012. ADD at 1479. It was “signed” by Ronald A. Williams as CEO, but
Williams ceased to hold that position in 2010.
C. Schuman’s Disability Claim
On or around June 16, 2011, Schuman commenced a short term disability (STD) claim
and was absent from work while he underwent surgery to address pain in his right foot. He
returned to work without restrictions on January 30, 2012. On or around March 28, 2013,
Schuman commenced a second STD claim and was absent from work starting on April 30, 2013
to have the hardware installed during the 2011 surgery removed. The parties agree that Schuman
received the requested STD benefits, including during the period from April 30, 2013 through
October 28, 2013.
The treatments did not resolve Schuman’s pain, however, and Schuman’s treating doctor
determined that he was only capable of sedentary work. On August 29, 2013, Schuman informed
an Aetna representative that he would not be able to return to his position. The parties agree that
Schuman’s disability has continued to render him incapable of holding that position until the
present.

9

In September 2013,5 close to the end of Schuman’s six-month STD benefit period, his
claim was referred for a determination whether he was eligible for LTD benefits. Throughout the
relevant period, the parties agree that Schuman’s treating physician, Dr. Aronow, consistently
determined that Schuman was capable of performing sedentary work. See, e.g., Defs’ LR
56(a)(1) Stmt. at ¶ 30 (citing AR at 651, 827–28, 1232, 1260–61, 1299, 1314–15). The parties
also agree that Schuman met the “own occupation” test of disability throughout the relevant
period. The following facts thus describe Aetna’s assessment of Schuman in preparation for the
application of the “reasonable occupation” test.
On September 25, 2013, Joseph Thompson of Coventry Health Care provided an “Aetna
Vocational Assessment” to Diane Winiarski, an Aetna employee listed as the “Claim Owner.”
AR at 822–25. The report indicated that Schuman had several transferable skills, but that
transferability was “limited” because “his vocational background is concentrated in one specific
occupation.” It identified three “job goals” in occupations that would not have met Schuman’s
reasonable wage requirements: peer reviewer, claims examiner, and instructor-pharmaceutical.
On September 26, 2013, Winiarski completed an in-house transferrable skills assessment
and identified the additional occupation of “Quality-Control Coordinator, Pharmaceuticals.” AR
at 499. Winiarski’s notes indicate that she asked Thompson “to assess if this occupation exist
[sic] in EE’s locale as CT does have numerous pharmaceutical companies.” Id. On October 18,
2013, Winiarski’s notes indicate that she received an email from Thompson regarding additional
labor market research. She indicated that the documentation he provided “appears to note the
existence of auditor positions of a sedentary nature consistent with the educational achievement,

5

The parties disagree on the exact date of this determination and the records are somewhat unclear, but pinpointing
the precise date does not seem material here.

10

it is not known whether they would meet the reasonable wage.” AR at 504. She further stated
that she had sent a follow-up email to Thompson to discuss the results because she was
concerned that vendor may not have understood task assignment. Need
labor market research to to [sic] determine if the labor market would
support the alt. occ. identified in [her previous analysis], Quality Control
Coordinator. Need direct ER [employer] contacts to verify the position[s]
exist, hiring trends, wags [sic], and would consider the clmt for
employment based on his education and work experience.
Id.
On November 18, 2013, Winiarski received a draft Labor Market Survey Report from
Thompson. Her notes indicate that she asked Thompson to make various edits to the report
regarding “ER [employer] contacts and typos.” AR at 511. She stated that she wanted to clarify
whether Thompson had been able to reach specific employers and asked him to remove from his
report occupations that did not meet the reasonable wage requirement. She also noted that
Schuman had been apprised of the process for completing a Labor Market Survey and would be
informed that Thompson was adding additional employer contacts to the report. On November
26, 2013, Winiarski’s notes indicate that Schuman was informed about the results of the final
Labor Market Survey Report and that he discussed them with her. AR at 516. Her notes indicate
that, as per policy, Schuman was not provided with a copy of the report.
On or about December 18, 2013, Schuman registered for two courses at a community
college as part of Aetna’s vocational rehabilitation program. In a January 3, 2014 letter,
Kimberly Nee, a representative of Aetna, informed Schuman that he had been approved for a
Rehabilitation Program, with Lori Karickhoff serving as his vocational rehabilitation counselor.
AR at 870. In a January 2, 2014 note, Karickhoff observed that Schuman would need additional
computer training in order to be considered a qualified candidate for the alternative occupations
under consideration. AR at 537.
11

On June 2, 9, 10, 11, 12, 13, and July 10, 2014, Schuman informed Karickhoff that he
was not qualified for or had been rejected from the positions she was sending his way. His
primary concern was that many of the positions required a Pharm. D. degree, which he did not
have and which would require several years of supplemental education and training at
considerable expense. On June 11, 2014, Sarah Coughlin of Ability Services Network provided
Karickhoff with a Labor Market Survey Report. AR at 1423–26. The report identified three
additional positions that did not require a Pharm. D.
On May 30 and June 9, 2014, Schuman also told Karickhoff that he wanted to enroll in
an MBA program. Karickhoff informed Schuman that he would be considered for additional
schooling only if he passed the “Test Changer review,” apparently meaning that he was
considered to be disabled under the “reasonable occupation” test.
On October 20, 2014, Thompson prepared a Labor Market Survey Report - Transition for
Winiarski. AR at 1434–44. His Transition Report purported to identify six positions within the
pharmaceutical industry that were within 100 miles of Schuman’s location and met his
qualifications, physical limitations, and reasonable wage requirement. Those positions were:
Formulary Manager at Aetna, Actuarial Assistant at Aetna, Pharmaceutical / Actuarial Manager
at Aetna, Informatics Consultant at Aetna, Director Clinical Pharmacy at Aetna, and Quality
Consultant at United Health Group. The report described its methodology for locating potential
positions as follows: “A total of 12 contacts were made for the various management and support
occupations within the Pharmaceutical industry.” AR at 1444.
In an October 23, 2014 letter, apparently on the basis of Thompson’s Transition Report,
Nee informed Schuman that his LTD benefits would terminate on October 26, 2014 because he
did not meet the Plan’s “reasonable occupation” test. Nee stated that the file indicated Schuman

12

was capable of full-time sedentary work, and identified six positions in the pharmaceutical
industry within 100 miles of Schuman’s location that would pay at least 60% of his pre-disability
wages. AR at 1001.
D. Schuman’s First Appeal
On November 14, 2014, Schuman, through counsel, filed an appeal of the LTD denial on
the grounds that: (1) he should have been evaluated under the “own occupation” definition for
twenty-four months; and (2) he was also disabled under the “reasonable occupation” test during
the relevant period. With respect to the latter argument, he asserted Thompson’s vocational
assessment was inadequate because it failed to take into account Schuman’s limited experience
and knowledge base.
As part of his appeal, Schuman submitted an alternative vocational assessment completed
by Erin Bailey of CRC Services, LLC on November 12, 2014. AR at 1155–62. Bailey opined
that Thompson had erred in concluding that Schuman could perform the six positions listed.
Specifically, she observed that:


The Formulary Manager position required formulary management experience
Schuman lacked;



The Actuarial positions required computer and actuarial experience Schuman
lacked;



The Pharmacy Quality Analyst position required computer experience and
knowledge of medical benefit programs Schuman lacked;



The Informatics Consultant position required marketing and specific
technological experience Schuman lacked, and gave preference to candidates with
masters degrees, which Schuman did not have;
13



The Director of Clinical Pharmacy position gave preference to registered
pharmacists (RPh) or candidates with Pharm. D., of which Schuman was neither;



The Quality Consultant position required knowledge in federal and state Medicaid
guidelines, which Schuman did not have; and



She also noted that the employer list was narrow and dominated by Aetna.

Bailey then conducted an independent transferable skills analysis using a job matching
software program cross-referenced with the Dictionary of Occupational Titles, and determined
that Schuman could “presently” perform the following occupations: title examiner, claim
examiner, credit counselor, policy holder information clerk, claims clerk, correspondence-review
clerk, and agent contract clerk. According to the Department of Labor statistics, none of those
positions would provide a “reasonable wage.” Accordingly, she concluded that Schuman was
disabled under the “reasonable occupation” test.
As part of Aetna’s review of the appeal, on January 1, 2015, Martin Powers, an Appeal
Specialist at Aetna, requested that Dr. Martin Taubman conduct an independent physician peer
review. Taubman spoke with Schuman’s treating physician, who again stated that Schuman
would be able to perform sedentary work. Taubman submitted a report to that effect on January
13, 2015. Taubman’s report also described Bailey’s report, but did not substantively address her
conclusions.
In a January 16, 2015 letter, Powers informed Schuman that his appeal had been denied.
AR at 1024–26. The appeal denial letter relied on Taubman’s peer review, although it did not
identify him as the peer reviewer, along with the prior vocational assessment and its
accompanying “wage survey.” It did not mention Bailey’s report.

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E. Schuman’s Second Appeal
In a January 21, 2015 letter, Schuman requested Tabuman’s peer review report and the
wage survey, as well as an opportunity to respond to any previously undisclosed evidence. On
January 27, 2015, Powers denied the request to reopen the appeal, but stated that Aetna would
consider new information to determine if a further review was warranted.
In a May 19, 2015 letter, Schuman asserted that he had relied to his detriment on a policy
provided to him by Ahold indicating that the “own occupation” test would apply for twenty-four
months. In support of that argument, he submitted, inter alia, an undated declaration indicating
that Schuman downloaded a policy with a twenty-four month “own occupation” test prior to May
2013 and that he had relied on that document when deciding whether to send his daughter to a
more expensive college in “the spring of 2014.” AR at 1033.
In a June 24, 2015 letter, Powers stated that Schuman had not provided the applicable
plan, nor any other new information, and accordingly that he would not reopen the appeal. AR at
1077–78.
F. Request for Plan Documents
On October 31, 2014, Schuman, through counsel, requested that Ahold provide him with,
inter alia:6
1.
Your complete claims file, to include the complete claim file of
Aetna Life Insurance Company and Ahold USA, Inc. and Stop & Shop
including copies of all medical records you have already received
regarding Jeff Schuman . . . ;
....

6

Schuman made a similar request of Aetna on November 3, 2014. AR at 1173. In response, on November 12, 2014,
Nee provided a copy of the LTD Claim file, the Policy, a summary of coverage, and the Certificate Base for
Schuman’s claim. AR at 1013. She stated that Aetna was not the “Plan Administrator,” and that Ahold should be
contacted for further information.

15

3.
Your complete LTD Policy which includes amendments and
appeal procedures in effect at the time Mr. Schuman became disabled;
....
5.
Your complete internal guidelines, rules, protocols, and criteria
under which the Plan operates; including complete internal guidelines,
rules, protocols, and criteria related to Mr. Schuman’s diagnosis . . . .
Pl.’s Mot. For Penalties, Ex. A.
On November 13, 2014, and well within the statutorily required 30-day response period,
Robert Watts, Director of Benefits for Ahold, provided:
1. The Plan Document for Ahold’s Master Welfare Benefit Plan (the
“Group Plan”), a document that includes no disability terms;
2. “Amendment One” to the Master Plan dated January 1, 2009;
3. The Benefits Rights and Responsibilities Summary Plan Description,
which does not contain LTD benefits terms;
4. The Annual Return / Report of the Benefit Plan on IRS form 5500;
5. The Long Term Disability Summary Plan Description dated January 2,
2011, which appears to be a summary of the benefits provided in Version
2; and
6. “Aetna’s Long Term Disability Certificate Booklet,” issued on
September 13, 2012, which appears to be a copy of Version Four.
Pl.’s Mot for Penalties, Ex. B. Watts’ letter further stated:
Together the Long Term Disability SPD, the Benefits Rights and
Responsibilities SPD, and the Certificate [Items 3, 5, and 6] comprise the
LTD plan. Because the LTD Plan has not been amended since January 1,
2011, there have been no Summaries of Material Modifications since that
time.
Id.
The defendants’ reply brief in support of their motion for summary judgment, filed on
July 2, 2016 included an attached declaration from Ronald Mattson, Aetna’s Group Insurance
Account Executive responsible for the Ahold account. (doc. 57-1) Mattson’s declaration stated
16

that a “Rider” to the Plan had been inadvertently omitted from the record and that the omission
had been discovered when reviewing the file. The Rider, signed by Aetna on October 8, 2012,
substituted a single page of the Plan, entitled “Policy Contents,” for an updated version. (doc. 572) The omitted page appears to be a table of contents identifying the certificates associated with
the Group Plan. Mattson’s declaration apparently correctly states that the new page simply
updated the dates of the certificates.
III.

Discussion
The amended complaint in this case fails to clearly articulate separate causes of action,

but at the hearing, Schuman clarified that he is asserting: (1) a claim for benefits under section
502(a)(1)(b) of ERISA, 29 U.S.C. § 1132(a)(1)(B), on the grounds that either Version One of the
certificate applied and the “own occupation” period should have lasted for twenty-four months or
the “reasonable occupation” test was not applied correctly; (2) in the alternative, a claim for
equitable relief because of Schuman’s reliance on the twenty-four–month “own occupation”
period stated in Version One.7 In addition, Schuman asserts a claim for civil penalties under
section 502(c) of ERISA, 29 U.S.C. § 1132(c), based on Ahold’s lack of timely disclosure.
A. Which Defendants are Subject to Which Claims
Before I address the substantive claims, I will the roles of each of the defendants and the
liability to which they may be subject as a result of those positions under ERISA. Aetna has been
identified as the “Claims Administrator.” The entity known as “Ahold USA, Inc. Master Welfare

Although the amended complaint alleges that the defendants’ conduct was “a breach of their fiduciary duty as set
forth by ERISA, 29 U.S.C. § 1109,” Schuman’s counsel stated at the hearing on these motions that he was not
making a claim for breach of fiduciary duty.
7

17

Benefit Plan” appears to be “the Plan” for the purposes of ERISA, and the entity known as the
“Administrative Committee of Ahold USA, Inc.” appears to be the “Plan Administrator.”
At the hearing, Schuman stated that he was asserting the benefits claim against “all
defendants.” The defendants responded that only the Plan could be held liable for a benefits
claim, but stated that Aetna was nevertheless the “real party in interest” because it indemnifies
the Plan. The Second Circuit has previously held that in a claim for benefits, only the plan and
plan administrators may be held liable under section 1132(d)(2), which limits the enforceability
of money judgments under ERISA. See Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir.
1989). More recently, however, the Second Circuit expanded that rule to include “a claims
administrator that exercises total control over the plan claims process.” See N.Y. State
Psychiatric Ass’n, Inc. v. UnitedHealth Grp., 798 F.3d 125, 132 (2d Cir. 2015), cert. denied sub
nom. UnitedHealth Grp., Inc. v. Denbo, 136 S. Ct. 506 (2015). As discussed below, under the
Plan, Aetna has been given “sole and absolute discretion to deny benefits and makes final and
binding decisions as to appeals of those denials,” and accordingly is also a proper defendant to
the claim for benefits. Id. (internal quotation marks and citations omitted); see also SullivanMestecky v. Verizon Commc’ns Inc., 2016 WL 3676434, at *19 (E.D.N.Y. July 7, 2016).
Schuman also stated that he was asserting his equitable claims against “all defendants.”
The defendants did not directly address liability because they asserted those claims had not been
adequately alleged. Schuman’s equitable claims are apparently asserted under section 502(a)(3),
29 U.S.C. § 1132(a)(3), ERISA’s “catchall” provision for equitable relief. The Supreme Court
has observed that section “makes no mention at all of which parties may be proper defendants—
the focus, instead, is on redressing the ‘act or practice that violates [ERISA].’” Harris Trust &
Savings Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 246 (2000) (quoting section

18

502(a)(3)); see also N.Y. State Psychiatric Ass’n, Inc.,798 F.3d at 133 (same, and holding that a
claims administrator may be liable under section 502(a)(3)). Schuman has alleged that he is
entitled to equitable relief because the provision of the allegedly incorrect versions of the plan
constituted a material misrepresentation upon which he reasonably relied. He has alleged both
Ahold and Aetna representatives were responsible, at least in part, for providing him with
incorrect versions of the plan; accordingly, I assume that both Ahold, the Plan, and Aetna, the
Claims Administrator, are potential defendants for that claim.
Finally, the parties agree that Schuman has only asserted his claim for civil penalties
against the Plan Administrator, which is the Administrative Committee of Ahold. See Pl.’s Mot.
for Civil Penalties (doc. 62).
B. Claim for Benefits
Under section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), “[a] civil action may
be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms
of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan.” Schuman asserts that the defendants failed to provide him
with the benefits to which he was entitled under his plan, either because they used an incorrect
version of his LTD benefits certificate to apply the wrong “own occupation” test period, or
because their determination that he did not meet the “reasonable occupation” test was incorrect. I
address each of those arguments in turn.
1. Which Version of the Certificate and “Own Occupation” Test Period Applies?
Schuman asserts that Version One, which he downloaded from the intranet or received by
mail from Ahold and which includes the twenty-four–month “own occupation” test period,
should have applied to him. See Pl.’s Mot. for Sum. J. Br. at 43–49; Pl’s Opp’n Br. at 4–5. The
19

defendants assert that Version Two, which was first provided to Schuman in the administrative
record and which includes the twelve-month “own occupation” test period, applies. See Defs’
Mot. for Sum. J. Br. at 24–27; Defs’ Opp’n Br. at 32–33.
The parties principally disagree about whether Schuman falls into the eligible class for
Version One or Version Two. The eligible class for Version One is defined as follows:
You are in an eligible class if:
You are a regular full-time active executive or salary employees [sic], as
defined by your employer.
AR at 6. The defendants assert that class is limited to Carlisle and Financial Group employees.
They have not, however, shown that Version One actually includes that limitation in its text;
rather, they have asserted that limitation in an interrogatory response. See Defs’ LR 56(a)(1)
Stmt. at ¶ 78; Aetna’s Answer to First Set of Interrogatories, No. 5 (doc. 36-2 at 5). Schuman
only indirectly disputes that assertion by noting that the interrogatory response included an
objection and therefore may be incomplete. See Pl.’s LR 56(a)(2) Stmt. at ¶ 78.
The eligible class for Version Two is defined as follows:
You are in an eligible class if:
You are a regular full-time Executive , salaried, Non-Union Hourly, and
Union 99 Associates[sic] employed by Stop and Shop, Giant of Maryland,
and American Sales Company employees [sic], as defined by your
employer.
AR at 99.8 Schuman responds that he was not a Stop & Shop employee, but rather an employee
of Ahold, and accordingly is not a member of the Version Two eligible class.

8

The eligible class for Version Four, which the defendants state is substantially similar to Version Two and which
also includes the twelve-month “own occupation” test period, is defined as follows:
You are in an eligible class if:
You are a regular full-time employee, as defined by your employer.

20

The related questions of which employee-classes are subject to which Versions and
whether Schuman was a member of the eligible class in Version Two must be answered in favor
of the defendants. The defendants correctly point out that both the Version One and Version Two
eligible class descriptions end with the clause “as defined by your employer,” see AR at 6, 99.
Thus, the defendants’ assertion that the “salaried employees” described in Version One are only
those salaried employees at Carlisle and the Ahold Financial Services unit is consistent with the
language of the certificate. It is also supported by an email from Mattson, an Aetna employee, on
August 1, 2014, noting that “the Giant-Carlyle policy correctly indicates [a] 24 months Own
Occ.” ADD at 1525. And Schuman has failed to produce affirmative evidence indicating that
Version One was not so limited.
Ahold’s assertion that Schuman was an employee of Stop & Shop for the purposes of the
eligible class described in Version Two is also consistent with the language of that certificate.
Ahold has submitted a declaration stating that Stop & Shop is an operating unit of Ahold.9 See
Mattson Decl. at ¶ 12(a) (doc. 57-1). It has also produced Schuman’s 2011 W-2, which indicates
that he was paid by Stop & Shop. And because Stop & Shop is a subdivision of Ahold, all of
Schuman’s arguments that he is an employee of “Ahold” are insufficient to establish that he
cannot also be considered an employee of Stop & Shop for the purposes of the plan. Schuman’s
response that the parties have already “agreed” that he was an employee of Ahold is not

ADD at 1481. Version Four states on its cover page that it was “Prepared Exclusively for Stop and Shop / Giant of
Maryland,” and the parties appear to assume that limitation extends to the eligible class definition.
Schuman’s contention that Stop & Shop is actually a separate corporate entity, see Pl.’s Objection (doc. 63), is
easily contradicted by judicially noticeable evidence, such as Ahold’s SEC filings. See, e.g., Royal Ahold Form 20F, available at https://www.sec.gov/Archives/edgar/data/869425/000119312516490286/d147864d20f.htm
(identifying Stop & Shop New England as an “operating segment” of Ahold, USA; cf. Kramer v. Time Warner Inc.,
937 F.2d 767, 774 (2d Cir. 1991) (“[A] district court may take judicial notice of the contents of relevant public
disclosure documents required to be filed with the SEC as facts ‘capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.’”) (quoting Fed. R. Evid. 201(b)(2)).
9

21

persuasive. See Pl.’s Reply Br. at 7. Instead, in order to be estopped from asserting Schuman was
in the Version Two eligible class, Ahold would have had to agree that Schuman was not a Stop
& Shop employee, as defined by Ahold for the purposes of receiving his disability benefits.
The defendants’ position is also supported by the almost uniform agreement between
Ahold and Aetna representatives that Schuman should have been subject to a twelve-month
“own occupation” test period, despite the inconsistencies in the plan documents. See, e.g., AR at
192, 194, 201, 203, 555, 556, 560, 815, 819, 836, 860, 895, 975, 999; ADD at 1504, 1509.
Schuman must concede that well before October 2014, the defendants had uniformly come to the
conclusion that he was subject to a twelve-month “own occupation” test period and informed
him of that period. Viewing the record in the light most favorable to Schuman, there is, at best, a
small possibility that he was entitled to the twenty-four–month period, and that the defendants
changed the terms that applied to him at some point in July 2014. Schuman cites to a number of
Second Circuit cases rejecting attempts to orally modify the terms of a written ERISA plan. Pl.’s
Reply Br. at 8. But in rejecting those employers’ efforts to rely on oral promises, at least one of
those cases stated that the Plan must be governed by exactly the documents provided by the
defendants here—a plan document and an SPD. See Moore v. Metro. Life Ins. Co., 856 F.2d 488,
492 (2d Cir. 1988) (“Congress intended that plan documents and the SPDs exclusively govern an
employer’s obligations under ERISA plans.”).
Finally, Schuman’s argument that the multiple Versions of the certificate should be read
together to make up a single ambiguous contract also fails. Ahold never presented the Versions
as one single contract with varying terms; even Schuman’s much contested labeling of the
Versions as versions indicates that he never thought the different certificates were intended to be

22

read together. And, as the defendants point out, Schuman does not argue that the terms within
any given Version are themselves ambiguous.
Schuman may argue that there remains a dispute about whether Version Two or Version
Four applies to him. Based on the above, however, there is no genuine dispute that the relevant
Version includes a twelve-month “own occupation” test period, and the parties have not
indicated that any other term of the Versions is actually material to this dispute.
2. Was the “Reasonable Occupation” Standard Correctly Applied?
Given that there is no genuine dispute that Shuman’s “own occupation” test period was
twelve months, I now must evaluate the defendants’ determination that Schuman did not meet
the “reasonable occupation” test that applied to his claim as of October 2014.
The first step of that inquiry is to resolve the parties’ dispute over the correct standard by
which to review that determination. “When an ERISA plan participant challenges a denial of
benefits, the proper standard of review is de novo ‘unless the benefit plan gives the administrator
or fiduciary discretionary authority’ to assess a participant's eligibility.” Thurber v. Aetna Life
Ins. Co., 712 F.3d 654, 658 (2d Cir. 2013), abrogated on other grounds by Montanile v. Bd. of
Trustees of Nat. Elevator Indus. Health Benefit Plan, 136 S. Ct. 651 (2016) (quoting Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). “If the plan does reserve discretion, the
denial is subject to arbitrary and capricious review and will be overturned only if it is without
reason, unsupported by substantial evidence or erroneous as a matter of law.” Id. (internal
quotation marks and citation omitted). Schuman points out, however, that in Halo v. Yale Health
Plan, 819 F.3d 42 (2d Cir. 2016), the Second Circuit held the denial of a claim under a plan
including discretionary authority is not entitled to the great deference afforded by the arbitrary
and capricious standard if the denial procedure failed to comply with the Department of Labor’s
23

claims-procedure regulation. Id. at 56. The Halo Court further stated that “the plan bears the
burden of proof on this issue since the party claiming deferential review should prove the
predicate that justifies it.” Id. (internal quotation marks and citation omitted). As applied to the
present case, the plan bears the burden to show that the denial decision was made using
compliant procedures, because compliance is “the predicate that justifies” deference through
arbitrary and capricious review.
Thus, in order to evaluate whether Aetna’s claim denial was appropriate, I must first
determine whether there is any genuine dispute over whether the Plan has a discretionary clause.
I find that there is not, and accordingly, arbitrary and capricious review would apply if the proper
procedures were used. Next, I must consider whether the defendants have satisfied their burden
to show that they substantially complied with the claims-procedure regulation, such that arbitrary
and capricious deference is appropriate. I find that they have not been able to do so on the
Administrative Record, because Schuman has identified specific evidence to the contrary.
Although those determinations would give me good cause to reopen discovery beyond the
Administrative Record, see Krizek v. Cigna Grp. Ins., 345 F.3d 91, 97 (2d Cir. 2003), however, I
find that ambiguities in the proper application of the “reasonable occupation” standard weigh in
favor of a remand.
a. Does the Plan have a discretionary clause?
The defendants assert that Schuman’s policy explicitly designates Aetna, the Claims
Administrator, as the Plan’s fiduciary and grants it discretionary authority. Defs’ Mot. for. Sum.
J. Br. at 18. The defendants cite to a document entitled “Group Accident and Health Insurance
Policy” (the “Group Policy”), the cover page of which states that it was “entered into by and

24

between Aetna Life Insurance Company . . . and Ahold U.S.A., Inc.” AR at 54. That document
contains a provision stating, in relevant part:
For the purpose of section 503 of Title 1 of the Employee Retirement
Income Security Act of 1974, as amended (ERISA), We [Aetna] are a
fiduciary with complete authority to review all denied claims for benefits
under this Policy. . . . In exercising such fiduciary responsibility, We shall
have discretionary authority to determine whether and to what extent
eligible employees and beneficiaries are entitled to benefits and to
construe any disputed or doubtful terms under this Policy, the Certificate
or any other document incorporated herein. We shall be deemed to have
properly exercised such authority unless We abuse our discretion by acting
arbitrarily and capriciously.
AR at 78 (emphasis added).
Schuman responded in his opposition brief that the Group Policy is not the same
document as the disability plan at issue in this case, as demonstrated by the fact that the language
included above was not included in any of the Versions of the certificate. The defendants then
provided a declaration from Ronald Mattson, a Group Insurance Account Executive at Aetna
who acted as a liaison between Aetna and Ahold. Defs’ Reply Br., Mattson Declaration
[hereinafter, the “Mattson Decl.”].10 Mattson explained that the Plan consists of two parts: (1) the
Group Policy containing general terms that apply to all of the different coverage options; and (2)
certificates setting out the specific slate of benefits for each class. Mattson Decl. at ¶¶ 3, 5. He
stated that the Group Policy incorporates the certificates by reference to a “Schedule of Benefits”
itemized on its “Policy Contents” page. Id. at ¶¶ 4, 5. And because the Group Policy and

10

Schuman has objected to the Mattson Declaration on the grounds that it was not made on personal knowledge and
was not introduced with the permission of the court, and is thus an impermissible supplement to the Administrative
Record. Pl.’s Objection (doc. 63). In light of my liberal permission to Schuman to introduce documents outside of
the Administrative Record, those arguments are unconvincing; moreover, the declaration does not introduce a new
matter for the first time, but rather seeks to clarify an issue that, I suspect, the defendants simply did not anticipate
being an argument. Accordingly, Schuman’s objection is overruled.

25

certificates are intended to be part of the same document, the latter would not repeat, for
instance, a grant of discretionary authority included in the former. Id. at ¶ 5.
As discussed further with respect to Schuman’s motion for civil penalties, Mattson then
disclosed that, in the course of preparing the declaration, Aetna noticed that the “Policy
Contents” page of the Group Policy previously produced in the Administrative Record at 59 had
dates inconsistent with the version of the certificate to which it referred, and thereby discovered
that Aetna and/or Ahold had failed to disclose a Rider with an updated version of that page that
had been issued in 2012.11 Id. at ¶ 10. The updated Policy Contents page cites to SOB1B, an
abbreviated reference to Schedule of Benefits 1B, which applies to Full-Time active Stop &
Shop, Giant of Maryland and American Sales Salary Employees (i.e., Version Two). Id. at Ex.
A; AR at 32–34.
Mattson’s explanation of the relationship between the Group Policy and the certificates is
supported by language in each. Mattson points out that Version Two states that it is “part of the
Group Insurance Policy” between Aetna and Ahold and that “the Group Insurance Policy
determines the terms and conditions of coverage.” Id. at 9 (citing AR at 96). Version One
includes the same language. AR at 3. In the same vein, the Group Policy cover page indicates
that:
Your Group Policy consists of:
a policy “shell” containing general provisions relating to
policyholder/insurance company matters, and
a certificate (including the Schedule of Benefits) containing the complete
plan of benefits.

11

Schuman objects to the late disclosure of the new Policy Contents page, but does not dispute its authenticity.
Accordingly, I assume that the new Policy Contents page is accurate.

26

AR at 37.
Based on the above account and a review of the documents, I conclude that the Group
Policy contains an adequate grant of discretion, and the Group Policy documents as well as both
Versions of the certificate match Mattson’s explanation that the Group Policy, acting as a
“wrap,” contains the general terms for all coverage.12 Accordingly, I hold that the Plan granted
Aetna discretionary authority.
b. Were appropriate procedures followed such that deference is appropriate?
Despite the grant of discretionary authority, however, Schuman has identified several
alleged violations of the claims-procedure regulations that he claims are sufficient to trigger
Halo’s de novo standard of review. See Pl.’s Mot for Sum. J. Br. at 31–38; Defs’ Opp’n Br. at 9–
16. The defendants did not explicitly cross-move for summary judgment on the procedural
violations issue, but they have sought a summary judgment determination that the arbitrary and

12

Schuman has attempted to create additional factual disputes regarding whether the Group Policy actually relates to
the certificates. First, he asserts that the Group Policy is an “obviously false document” because it bears the
signature of Ronald Williams as CEO of Aetna but it is dated to a time when Williams did not hold that position.
Pl.’s Opp’n Br. at 3. Mattson, however, has provided the extremely plausible explanation that the signature was an
electronic facsimile, added by harmless accident. Mattson Decl. at ¶ 8. And Schuman has adduced no affirmative
evidence, beyond the signature itself, that the Group Policy document was fraudulent. Although in ERISA cases,
discovery is generally limited to the administrative record to avoid getting at the substantive merits of the claim
decision, Schuman would certainly have been entitled to discovery regarding the authenticity of the governing
documents, see Burgie v. Euro Brokers, Inc., 482 F. Supp. 2d 302, 309 n.12 (E.D.N.Y. 2007)—the fact that he
apparently either did not seek any such discovery or uncover any favorable evidence undermines the sincerity of his
position.
Second, Schuman argues that those pages are, in fact, part of Version One. Pl.’s Objection at 3 (doc. 63).
The defendants point out that the table of contents of Version One indicates that the last included section of that
document is the Glossary, which ends on page 31 of the Administrative Record. See AR at 2. Moreover, the
Schedule of Benefits states that it is “For: Full-time active employees of Stop and Shop . . . who are eligible for
Long term Disability Benefits,” AR at 32, and, as discussed at length above, the parties apparently agree that
Version One does not apply to that group.
Third, he argues that because the Group Policy was provided as part of a fax from a claims analyst at the
Premium Waiver Unit, “the references in the group policy to LTD premiums can relate to the LTD premium for
waiver of premium disability coverage.” Pl.’s Objection at 4 (doc. 63). But that position does not appear to be
supported by the language of the documents themselves—for instance, the first page of the Group Policy states that
it includes “a certificate . . . containing the complete plan of benefits,” AR at 37, rather than a more limited
discussion of premium waivers. Schuman has not pointed to any evidence that would justify looking beyond the
plain language of the documents here.

27

capricious standard should apply as a matter of law, which would implicitly require a finding that
the Halo exception does not apply.
Schuman has raised several genuine issues regarding whether his claims determination
was decided in a manner consistent with the claims-procedure regulations. As noted above, in
Halo, the Second Circuit rejected the “substantial compliance” doctrine, warning that “deviations
[from the regulation] should not be tolerated lightly.” Id. at 57. Violations of the claims
procedure regulation should result in de novo review in federal court “unless the plan has
otherwise established procedures in full conformity with the regulation and can show that its
failure to comply with the claims-procedure regulation in the processing of a particular claim
was inadvertent and harmless.” 13 819 F.3d at 58. The defendants conceded at the hearing that
they have made no arguments about the first element of the Halo test, namely, whether those
violations were inadvertent. And at least one of the enumerated violations, a complete failure to
consider documents submitted on appeal, cannot be written off as harmless because a
consideration of those documents could plausibly have changed the outcome of the appeal. I am
mindful, however, that the present motions for summary judgment are made on a record that has

13

The defendants assert that Halo must be read narrowly to avoid conflicting with Conkright v. Frommert, 559 U.S.
506 (2010), which held that a plan administrator’s decision should be given deference unless it was shown that he
“had acted in bad faith or would not fairly exercise his discretion” under the plan. Id. at 515. Applying that standard,
the Court held that an administrator who had committed “a single honest mistake” should not be stripped of
deference. Id. at 513. But Conkright does not appear to conflict with the Halo decision—the latter addresses errors
resulting from procedural defects, rather than one-off mistakes. Moreover, although Halo asserts that the
Department of Labor regulation rejected a “good faith” standard of compliance as well as the “substantial
compliance” doctrine, Halo, 819 F.3d at 57, the decision nevertheless preserves an inadvertent / harmless error
exception that seems to be consistent with Conkright’s holding, id. at 57–58.
I also note that the defendants misstate the Conkright holding when they assert that it requires deference to
plan administrators “only when a court can conclude that he ‘is too incompetent to exercise his discretion fairly.’”
Defs’ Opp’n Br. at 17 (quoting Conkright, 559 U.S. at 521). That statement is actually used by the Court as an
example of “extreme circumstances” that would not be given deference, rather than setting out the requirements for
the boundaries of deference.

28

thus far largely been limited to the Administrative Record. The violations suggested by that
Record would be helpfully elucidated by traditional discovery or, as I discuss below, a remand.
Below I discuss Schuman’s strongest arguments that violations have occurred. Because
those violations are more than sufficient to trigger Halo, in the interest of some brevity, I do not
reach Schuman’s remaining arguments.
i. Failure to Consider the Bailey Report – Failure to take into account all
documents on appeal, 29 C.F.R. § 2560.503-1(h)(3)(iv), and appeal review
improperly deferential to initial determination, 29 C.F.R. § 2560.5031(h)(3)(ii)
The most serious plausible procedural violation Schuman asserts is that Aetna failed to
consider the additional vocational assessment that he submitted on review (the “Bailey Report”).
Section (h)(3)(iv), which applies to disability benefit plans through section (h)(4), states
that a plan’s claims procedures “will not be deemed to provide a claimant with a reasonable
opportunity for a full and fair review of a claim and adverse benefit determination unless” they
“[p]rovide for a review that takes into account all comments, documents, records, and other
information submitted by the claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.”
Schuman argues that Powers, Aetna’s Appeals Specialist on Schuman’s claim, failed to
evaluate any of the documents submitted by Schuman with his appeal. The defendants point out
that Taubman’s peer review report, on which Powers relied, both reviewed and discussed
Bailey’s report and Schuman’s additional medical evidence. See AR at 1081, 1084 (describing,
but not analyzing Bailey’s report). The peer reviewer is a podiatrist, however, and it is clear that
his review was intended to evaluate the medical evidence of Schuman’s disability, as opposed to
prior assessments of his transferrable skills and specific employment prospects. Accordingly, it

29

would be wholly unreasonable for the appellate reviewer to rely on Taubman’s assessment of
Bailey’s report in order to determine whether its critique of the initial vocational assessment was
valid.
The defendants further argue that Schuman has not provided any affirmative evidence
that Powers did not independently analyze Bailey’s report. But the defendants, and not Schuman,
bear the burden to show that their determination is consistent with the claims procedures
regulations, and they have not proffered any affirmative evidence that the appellate reviewer did
consider Bailey’s report. Accordingly, Schuman has raised a genuine issue of material fact
regarding consideration of the Bailey Report.
Schuman also argues that Aetna’s failure to consider the Bailey report in making its
appeal decision constitutes an improper deferral to the initial decision, in violation of section
(h)(3)(ii). Section (h)(3)(ii), which applies to disability benefit plans through section (h)(4),
states that the claims procedures for group health plans “will not be deemed to provide a
claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit
determination unless” they “[p]rovide for a review that does not afford deference to the initial
adverse benefit determination and that is conducted by an appropriate named fiduciary of the
plan who is neither the individual who made the adverse benefit determination that is the subject
of the appeal, nor the subordinate of such individual.”
Section (h)(3)(ii) is not much litigated. An Eastern District of California judge found that
the section was violated when an appellate reviewer “simply copied down” four paragraphs from
obviously flawed medical reports as the basis of its conclusion. Faulkner v. Hartford Life & Acc.
Ins. Co., 860 F. Supp. 2d 1127, 1143 (E.D. Cal. 2012). A Fifth Circuit panel held that the section
was violated when an appellate reviewer relied exclusively on the opinion of the same doctor

30

who provided the basis for the initial review. Lafleur v. Louisiana Health Serv. & Indem. Co.,
563 F.3d 148, 157 (5th Cir. 2009). Neither of those cases is squarely on point—the initial
vocational assessment was not obviously flawed or glaringly inconsistent with the record, like
the severely criticized reports in Faulkner; and Powers here obtained a peer review of the initial
doctor’s medical opinion, the accuracy of which Schuman does not meaningfully contest.
Nevertheless, that the appeal denial letter wholly fails to address any concerns about the
accuracy of Thompson’s report is concerning, and the defendants have not proffered any
evidence that silence was not the result of improper deference to the initial determination.
ii. Failure to furnish internal guidelines, 29 C.F.R. §§ 2560.503-1(h)(2)(iii) and
(m)(8)(iv)
Schuman argues that Aetna also violated the claims-procedure regulation requiring the
disclosure of relevant documents when it failed to provide him with copies of internal policy
guidelines on request.
Section (h)(2)(iii) requires that there be a procedure to make “relevant documents”
available to the claimant on appeal. Schuman asserts that Aetna’s internal policy guidelines are
relevant documents under section (m)(8)(iv). That provision appears to apply to guidelines
describing how the plan handles claims based on particular diagnoses, rather than the general
guidelines for handling claims. Section (m)(8)(iii) offers a more applicable category of “relevant
documents,” however, including any document that “[d]emonstrates compliance with the
administrative process and safeguards required pursuant to paragraph (b)(5),” which in turn
requires that the claims procedures ensure that plan provisions are applied in a consistent
manner.
The internal guidelines at issue here are clearly relevant to a consideration of whether the
claims procedure was applied consistently—although the plan granted Aetna discretionary
31

authority, when it chose to codify internal guidelines, it established a set of norms against which
Schuman was entitled to compare the handling of his own case. Glista v. Unum Life Ins. Co. of
Am., 378 F.3d 113, 124 (1st Cir. 2004) (coming to a similar conclusion when considering section
(m)(8)(iv) in the context of a discovery motion). The parties seem to agree that Schuman
requested internal policy guidelines from Aetna on November 2, 2014, and that those guidelines
were not produced during his appeal, but instead were provided to Schuman for the first time as
part of discovery in this case. See Defs.’ Opp’n Br. at 11–12 (citing Lori A. Medley Decl.).
Accordingly, Schuman has raised a genuine dispute of fact on this issue.
iii. Failure to set up administrative processes, 29 C.F.R. § 2560.503-1(b)(5)
Section (b)(5) requires the claim procedures to include administrative processes ensuring
that similarly situated claimants are treated in a consistent manner, including “safeguards
designed to ensure and to verify that benefit claim determinations are made in accordance with
governing plan documents.” Schuman argues that the defendants’ inability to even identify, let
alone provide, the correct version of his certificate demonstrates that those safeguards were not
in place.
The Administrative Record in this case does not inspire confidence. As discussed above,
Schuman’s first documented request for his certificate occurred in late July 2014. Thereafter,
from July 30, 2014 through August 29, 2014, the defendants struggled to provide Schuman with
any certificate including what they believed to be the correct “own occupation” test period. The
briefing in this case has revealed further omissions.
In response, the defendants simply reiterate their argument that Schuman’s claim
determination was correctly decided under Version Two. But an argument that the claim was
actually decided pursuant to the correct policy in this case does not address whether the
32

safeguards required by section (b)(5) to ensure that outcome in every case were actually in place.
It seems difficult for the defendants to claim that they have adequate safeguards in place to
ensure claims determinations are made in accordance with governing documents when they do
not even seem to have a mechanism to consistently identify what those documents are.
Accordingly, Schuman has adequately supported a claim that this section was violated.
iv. Failure to identify experts, 29 C.F.R. § 2560.503-1(h)(3)(iv)
Finally, the defendants admit they did not fully comply with section (h)(3)(iv), when they
failed to identify Thompson14 as a vocational expert at any time during the initial determination
or appeal. Defs’ Opp’n Br. at 13. Section (h)(3)(iv) states that a group health plan’s claim
procedures must “[p]rovide for the identification of medical or vocational experts whose advice
was obtained on behalf of the plan in connection with a claimant’s adverse benefit determination,
without regard to whether the advice was relied upon in making the benefit determination.”
The defendants’ concession may be incorrect. Section (h)(3)(iv) does not state that
claimants must be provided with the identity of experts on request, but instead simply requires
the claim procedures to “provide” that information. Accordingly, “[m]any district courts have
concluded that a plan with procedures that ‘provide [ ] for’ the identification of these experts
upon request satisfies the regulation; the regulations do not require explicit disclosure of those
experts in the denial letter.” Bible v. Parker Hannifin Corp. Ben. Fund, 2015 WL 3756435, at *1
(E.D. Tenn. June 16, 2015) (collecting cases); see also Parkridge Med. Ctr., Inc. v. CPC
Logistics, Inc. Grp. Ben. Plan, 2013 WL 3976621, at *15 (E.D. Tenn. Aug. 2, 2013) (finding no
violation of section (h)(3)(iv) where the plaintiff failed to request the experts’ identities). In the

Schuman describes the improperly unidentified individual as the “vocational reviewer,” and the defendants do not
specify the individual, but they do refer to Thompson’s Labor Market Survey Report, so I assume Thompson is the
individual in question.
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present case, Schuman has not indicated that he specifically requested identification of any
experts during the pendency of his claim and appeal. Although the defendants concede that, in
contrast to the cases discussed above, Aetna’s policy would have prohibited disclosure of the
specific document, Defs’ Opp’n Br. at 13, neither party discusses whether that policy also would
have prohibited the disclosure of Thompson’s identity.
v. The Need for Remand
Together, the violations discussed above are sufficient under Halo to trigger de novo
review of the defendants’ determination that Schuman did not meet the “reasonable occupation”
test. But additional ambiguities in the Administrative Record cloud the viability of that review.
To be sure, many of the issues raised above would benefit from discovery outside of that Record.
More importantly, however, it is unclear from the Administrative Record whether either
party presented sufficient evidence during the initial claim review and appeal process to
determine whether Schuman meets “reasonable occupation” standard. Aetna’s vocational experts
appear to have assumed—perhaps overly generously—that a “reasonable occupation” means one
that would fit easily into Schuman’s resume, and accordingly focused on specific positions in the
pharmaceutical industry in Connecticut, rather than considering more generally whether
Schuman was, or could reasonably become fitted for, occupations in the economy. Bailey,
Schuman’s expert, correctly began with a consideration of general occupations as described by
the Dictionary of Occupational Titles, but does not seem to have given serious consideration to
the “become reasonably fitted” portion of the reasonable occupation standard. And then Aetna
compounded the problem by failing to adequately consider Bailey’s report on review.
The proper approach lies somewhere between those taken by the two sides—an
appropriate evaluation will consider both whether Schuman is or may become fitted to perform
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any type of work that actually exists in the economy and whether he is “vocationally qualified to
obtain such employment, and to earn a reasonably substantial income from it.” Demirovic v.
Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208, 215 (2d Cir. 2006); see also Durakovic v. Bldg.
Serv. 32 BJ Pension Fund, 609 F.3d 133, 136 (2d Cir. 2010) (applying the same holding); Smith
v. Champion Int’l Corp., 573 F. Supp. 2d 599, 618–55 (D. Conn. 2008) (providing an exhaustive
discussion of how to conduct appropriate vocational and transferrable skills analyses). Without
such an evaluation, however, in order to make a proper determination I would be required to
consider significant evidence outside of the Administrative Record and, in a meaningful sense, to
become the decisionmaker in the first instance rather than a reviewer of the decisions made by
the Claims Administrator. Accordingly, remand is appropriate to supplement the Administrative
Record with information necessary to permit Aetna to make an appropriate evaluation of
Schuman’s LTD claim. See Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995)
(“[N]othing in the legislative history suggests that Congress intended that federal district courts
would function as substitute plan administrators.”) (internal quotation marks and citation
omitted).
c. Conflict of Interest
Schuman’s complaint and briefing also suggest an argument that Aetna has a conflict of
interest as the party that both evaluates claims and indemnifies the Plan for any payments made
on those claims, and accordingly Aetna’s decision-making should be entitled to less deference.
See Pl.’s Mot. for Sum. J. Br. at 39–43; Defs’ Opp’n Br. at 20–29. The Supreme Court, in
Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008), held that similar circumstances
created a potential conflict of interest that should “‘be weighed as a factor in determining
whether there is abuse of discretion.’” Id. at 115 (quoting Firestone Tire & Rubber Co. v. Bruch,
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489 U.S. 101, 115 (1989)). The Glenn Court instructed lower courts to consider, inter alia,
whether the administrator had “a history of biased claims administration” or whether it had,
instead, “taken active steps to reduce potential bias and to promote accuracy.” Id. at 117.
The defendants point out that only limited discovery has been taken on the details of a
potential conflict. See Defs’ Opp’n Br. at 21. Schuman has alleged both structural conflicts and
specific facts in his case that, read most favorably to him, could suggest interference on the basis
of a conflict; moreover, some of the facts underlying his conflict claim will also be assessed as
part of the de novo review of his claim determination. Given that I have already found good
cause to remand this case in order to resolve the issues discussed above, however, the need for
additional discovery on the question of conflict can be addressed if and when the case returns to
this court.
C. Equitable Claims
Schuman also argues for various equitable remedies based on his “reasonable reliance”
on the twenty-four–month period. See Am. Compl. at ¶ 16(i) (“Defendants misrepresented the
length of the “own occ” period in violation of 29 U.S.C. § 1132(a)(3).”). In his motion for
summary judgment, Schuman describes his claim for equitable relief as seeking a remedy
equivalent to estoppel under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). See Pl.’s Mot.
for Sum. J. Br. at 54.
“To prevail on an estoppel claim under ERISA, [a plaintiff] must prove (1) a promise, (2)
reliance on the promise, (3) injury caused by the reliance, and (4) an injustice if the promise is
not enforced, and must adduce facts sufficient to satisfy an ‘extraordinary circumstances’
requirement as well.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 109 (2d Cir.
2008) (internal quotation marks, alterations, and citation omitted).
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The defendants correctly argue that Schuman cannot show reasonable reliance as a matter
of law. Schuman’s only evidence of his reliance appears to be his two declarations. See Schuman
Decl. 1 (AR at 1033, undated but submitted on May 19, 2015); Schuman Decl. 2 (ADD at 1510,
dated February 25, 2016). In his first declaration, Schuman states that he downloaded Version
One in May 2013 and relied on the twenty-four–month “own occupation” test period in “the
spring of 2014” when deciding whether to send his daughter to a more expensive college. AR at
1033. His second declaration adds that he either downloaded Version One or received it by mail
from Ahold in May 2013. ADD at 1510.
The defendants point out, however, that between May 2013 and “the spring of 2014,”
Schuman was told multiple times that his benefits test would change after twelve months.
Schuman did not question or object to any of those statements; indeed, the record suggests
Schuman asked several questions about the “reasonable occupation” test in 2013 that reflected an
awareness of the twelve-month time period. See AR at 203 (telephone note on September 26,
2013 stating that “EE also asked about RW of 60% after a year of benefits”); AR at 555 (note
between July 17 and July 21, 2014 stating that “EE asked about the change in disability in Oct
and how this [apparently indicating a recent surgery] affects it”). There is thus no reasonable
dispute that Schuman was at least on inquiry notice, if not actual notice, as of “the spring of
2014” that a twelve-month “own occupation” test period would apply.
Similarly, Schuman cannot show the requisite “extraordinary circumstances.” In order to
satisfy that requirement, a plaintiff “must show that the employer used the promise to
‘intentionally induce [a] particular behavior’ on the plaintiff’s part only to renege on that promise
after inducing the sought after behavior.” Peterson v. Windham Cmty. Mem’l Hosp., Inc., 803 F.
Supp. 2d 96, 105 (D. Conn. 2011) (quoting Devlin v. Transp. Commc’n Int’l Union, 173 F.3d 94,

37

102 (2d Cir. 1999)). Although Schuman apparently recognizes that such circumstances must
involve inducement, see Pl.’s Opp’n Br. at 13, he makes no effort to argue that any of the
defendants had any intent to induce him to do anything by misrepresenting the length of his
“own occupation” test period. There is certainly no plausible argument that the defendants
somehow intended the action that Schuman claims he took as a result of his reliance—namely,
deciding to send his daughter to a more expensive college.
The bulk of Schuman’s responsive argument goes to establishing that he can properly
assert an equitable claim within the ERISA framework. Assuming, arguendo, that he can, he has
nevertheless failed to identify any ground for equitable relief that does not require a showing of
reasonable reliance. Accordingly, I hold that Schuman did not reasonably rely on a twenty-four–
month “own occupation” test period, and therefore grant the defendants’ motion for summary
judgment on Schuman’s equitable claims.
D. Motion for Civil Penalties
Schuman also moves for civil penalties against the Administrative Committee of Ahold,
as Plan Administrator, under ERISA. He argues by omitting the updated Rider that was disclosed
for the first time in the Mattson Declaration, the Administrative Committee failed to provide
requested Plan materials on the timeline required by the statute. The Committee, asserting that
the motion is frivolous, seeks costs.
Section 104(b)(4) of ERISA, 29 U.S.C. § 1024(b)(4), requires that:
The administrator shall, upon written request of any participant or
beneficiary, furnish a copy of the latest updated summary, plan
description, and the latest annual report, any terminal report, the
bargaining agreement, trust agreement, contract, or other instruments
under which the plan is established or operated.

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ERISA’s civil enforcement provision further provides that any administrator who fails to comply
with a request for information required to be disclosed under the statute within 30 days of that
request “may in the court’s discretion be personally liable to such participant or beneficiary in
the amount of up to $[110] a day from the date of such failure.” 29 U.S.C. § 1132(c)(1)(B) and
29 C.F.R. § 2575.502c-1(increasing potential penalty amount to $110). As noted above, the
parties agree that the Administrative Committee is the Plan Administrator. They also seem to
agree that ERISA at least arguably required the disclosure of the Rider and updated “Policy
Contents” page, presumably as an “instrument under which the plan is operated”15 under section
104(b)(4).
“In assessing a claim for statutory penalties under ERISA, a district court should consider
various factors, including [1] bad faith or intentional conduct on the part of the administrator, [2]
the length of the delay, [3] the number of requests made and documents withheld, and [4] the
existence of any prejudice to the participant or beneficiary.” Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 848 (2d Cir. 2013) (internal quotation marks and citation omitted). Schuman
asserts that each of those factors weighs in favor of awarding penalties in the present case.
Schuman is correct that the length of the delay in providing the correct document is significant,
at 19 months, and that the Administrative Committee had numerous opportunities to find the
omitted document and provide it to Schuman. The remaining factors, however, do not support
the imposition of sanctions.

There is at least a colorable argument that the Rider and new “Policy Contents” page, which make only a technical
change to the Plan, do not constitute an “instrument” within the meaning of the statute. See Bd. of Trustees of the
CWA/ITU Negotiated Pension Plan v. Weinstein, 107 F.3d 139, 142–44 (2d Cir. 1997) (observing that both the plain
meaning of the word “instrument” and the legislative history of the statute suggest that ERISA’s disclosure
requirements were intended to provide beneficiaries with the governing legal documents that affected their ability to
obtain their benefits, rather than granting an unlimited entitlement to “technical” documents). I need not decide that
issue here, however, because the same concerns are adequately addressed by the prejudice inquiry.
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39

Schuman asserts that bad faith is shown by the Committee’s persistent inability to
provide Schuman with the applicable plan documents. Pl.’s Mot. at 3. But this motion for civil
penalties is tied to a specific omission—it is not an alternative vehicle by which to punish Ahold
for the substance of the complaint. Schuman has offered no evidence that the Administrative
Committee was aware of the omitted Rider and was intentionally keeping it from him, or that it
was intentionally failing to conduct an appropriate search of its documents. Although the
Committee’s difficulty in providing a complete and accurate copy of Schuman’s plan is
concerning, the evidence in the record suggests incompetence, rather than bad faith or intentional
conduct, drove both the specific omission here and the Committee’s inability to provide proper
plan documents more generally.
Schuman argues that Watts’ assertion that the Plan “had not been amended since January
1, 2011” was false or misleading. The Committee has a convincing rejoinder. It points out that
the contested statement reads in full:
Because the LTD Plan has not been amended since January 1, 2011, there
have been no Summaries of Material Modifications since that time.
A “Summary of Material Modifications” (“SMM”) is defined in the SPD as “an amendment that
changes the terms described in this SPD.” Eckert Decl., Ex. E at 24. The Committee asserts that
SMMs are intended to put employees on notice only of material changes, rather than superficial
ones such as the change at issue here. Accordingly, it argues that Watts’ letter should be
understood as correctly stating that there had not been any material modifications to the LTD
Plan since June 1, 2011. I agree.
Finally, the Committee argues that Schuman has failed to show any prejudice resulting
from the omitted Rider and new “Policy Contents” page. Ahold Opp’n Br. at 4. Schuman had no
need to rely on the Policy Contents page that he received, and it is unclear how or why such a
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technical change would have changed Schuman’s discovery strategy in any way. Accordingly,
even assuming arguendo that the failure to produce the Rider and updated “Policy Contents”
page was a violation of ERISA’s disclosure requirements, that violation would not justify the
imposition of penalties against the Committee.
I also deny the Committee’s motion for costs—although the omission was minor, it was a
problem of the Committee’s own making.
IV.

Conclusion
The defendants’ motion for summary judgment is granted in part with respect to

Schuman’s equitable claims and denied in part, insofar as they have not shown that there is no
genuine dispute of material fact regarding either the appropriate standard of review for the claims
determination or whether the determination should be affirmed under any standard. Schuman’s
cross-motion for summary judgment is also denied. Schuman’s motion for civil penalties is
denied, and the Administrative Committee’s motion for costs in defending that motion is also
denied.
Because the Administrative Record does not provide me with sufficient evidence to
determine whether the “reasonable occupation” standard has been correctly applied, however, I
grant the defendants’ request for remand for further consideration of that issue.

So ordered.
Dated at Bridgeport, Connecticut, this 20th day of March 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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