Hopp v. Aetna Life Insurance Company et al
Filing
42
ORDER granting 24 Motion for summary judgment; denying 28 Motion for summary judgment. The Clerk of Court shall enter a final judgment in favor of Defendants and against Plaintiff, and close this case. Signed by Judge Elizabeth A. Kovachevich on 3/4/2014. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DORIS HOPP,
Plaintiff,
v.
CASE NO. 8:12-CV-485-T-17TBM
AETNA LIFE INSURANCE
COMPANY, et al.,
Defendants.
______________________/
ORDER
This cause is before the Court on:
Dkt. 24
Dkt. 25
Dkt. 26
Dkt. 27
Dkt. 28
Dkt. 29
Dkt. 30
Dkt. 33
Dkt. 34
Dkt. 35
Dkt. 36
Dkt. 40
Dkt. 41
Motion for Summary Judgment
Statement of Undisputed Facts
Certificate of Compliance
Notice of Filing of Administrative Record
Motion for Summary Judgment
Statement of Undisputed Facts
Certificate of Compliance
Memorandum in Opposition
Response to Statement of Undisputed Facts
Plaintiff’s Statement of Disputed Facts
Memorandum in Opposition
Order
Response to Order
This case is an ERISA case. In the Complaint, Plaintiff Doris Hopp seeks a
judgment against Defendants Aetna Life Insurance Company and Bank of America
Corporation, finding that Plaintiff is entitled to Short Term Disability benefits from
November 23, 2010 through May 24, 2011, awarding $18,172.68 for those benefits, with
pre-judgment interest on each monthly payment from the date due until the date paid,
awarding reasonable attorney’s fees and costs, and other appropriate relief.
Case No. 8:12-CV-485-T-17TBM
The parties have filed cross-motions for summary judgment. Defendants seek
entry of summary judgment against Plaintiff Doris Hopp as to all claims. Defendants
argue that Aetna’s decision to deny benefits is not “wrong.” Defendants further argue
that, if the Court concludes that Aetna’s decision is wrong, the decision to deny benefits
still had a reasonable basis, and therefore was not arbitrary and capricious. Accordingly,
the Court should enter summary judgment in favor of Defendants.
Plaintiff Hopp seeks entry of summary judgment against Defendants. Plaintiff
Hopp identifies the following issues:
1. Whether Aetna’s decision to deny benefits was wrong (i.e. was Hopp
disabled within the meaning of the Plan);
2. Whether Aetna was properly delegated discretionary authority by BOA;
3. Did Aetna have discretionary authority over claims decisions when it
decided Hopp’s claim;
4. Whether the court’s inquiry must end and judgment must be granted to
Hopp because Aetna’s decision was wrong and it did not have
discretionary authority.
I. Standard of Review
A. Rule 56
Summary judgment should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits, show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56 (c).
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“The plain language of Rule 56(c) mandates the entry of
summary judgment after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The appropriate substantive law will guide the determination of which facts are
material and which facts are...irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). All reasonable doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” See Anderson, 477 U.S. at 248.
But, “[i]f the evidence is merely colorable...or is not significantly probative...summary
judgment may be granted.” Id. at 249-50.
The Court notes the discussion in Curran v. Kemper Natl. Servs., Inc., 2005 WL
894840 *7 (11th Cir. 2005)(unpublished) and Crume v. Met. Life Ins. Co., 417 F.Supp.2d
1258 (M.D. Fla. 2006). While there may be unresolved factual issues evident in the
administrative record, ....unless the administrator's decision was wrong, or arbitrary and
capricious, these issues will not preclude summary judgment as they normally would.
Pinto v. Aetna Life Ins. Co., 2011 WL 536443 (M.D. Fla. Feb. 15, 2011). Conflicting
evidence on the question of disability alone cannot create an issue of fact precluding
summary judgment, since an administrator’s decision that rejects certain evidence and
credits conflicting proof may be reasonable. 417 F.Supp.2d at 1273.
B. ERISA
In reviewing a plan administrator's benefits decision, the Court performs the
following analysis:
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(1) Apply the de novo standard to determine whether the claim
administrator's benefits-denial decision is “wrong” (i.e., the court disagrees
with the administrator's decision); if it is not, then end the inquiry and
affirm the decision.
(2) If the administrator's decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims; if
not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is “de novo wrong” and he was vested
with discretion in reviewing claims, then determine whether “reasonable”
grounds supported it (hence, review his decision under the more
deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the
administrator's decision; if reasonable grounds do exist, then determine if
he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court
to take into account when determining whether an administrator's decision
was arbitrary and capricious.
See Blankenship v. Met. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011)(citing
Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010)).
The Court’s review of an ERISA benefits decision is “limited to consideration of
the material available to the administrator at the time it made its decision.” Blankenship
v. Met. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011)(citing Jett v. Blue Cross and
Blue Shield of Alabama, Inc., 890 F.2d 1137, 1140 (11th Cir. 1989).
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II. Statement of Facts
1.
Plaintiff Doris Hopp worked as a Home Services Specialist II, processing
mortgage refinancings. Her work hours were from 9 a.m. to 6:00 p.m., 5 days a week.
Plaintiff’s job was classified as a “sedentary” position. Plaintiff had a “high level of
underwriting authority.” (Dkt. 27-1, p. 5).
2. Plaintiff Hopp sought treatment from Dr. Richard Timmons on 11/18/2010.
Plaintiff treated with Alice Savage, MS, LMHC, CAP, Best Life Counseling, on
12/8/2010, 12/15/2010 and 1/5/2011. Plaintiff treated with Dr. Gustavo J. Cuadra on
2/2/2011, 3/2/2011, 3/23/2011, and 4/20/2011; there is an additional prescription note
from Dr. Cuadra dated 5/16/2011. Dr. Timmons is Plaintiff’s primary care physician. Dr.
Cuadra is a psychiatrist. Plaintiff saw Alice Savage, MS, LMHC, CAP through Bank of
America’s Employee Assistance Plan.
3. Bank of America offers a Group Benefits Program to employees that is
comprised of component plans. (Dkt. 41-1). The Bank of America Associate Handbook
2010 identifies the component plans that are subject to ERISA and outlines the
employee’s rights under each component plan. (Dkt. 1-3, pp. 12-18).
4. Bank of America’s Group Benefits Program incorporates the summary plan
description of the STD Plan as an expression of the substantive provisions of the STD
Plan. (Dkt. 41-1, p. 14).
5.. The Bank of America Associate Handbook 2010 explains how to obtain Plan
documents (“Receiving information about each of your component plans and
benefits”, (Dkt. 1-3, p. 13)) and further provides:
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Plan documents
The Group Benefits Program and each component plan are based on an
official plan document. Each component plan’s summary plan description
is a summary of the more important plan features. This summary
supersedes and replaces any prior communications, policies, rules,
practices, standards and/or guidelines to the contrary, whether written or
oral. You can find the full component plan details in the official plan
documents. If a component plan provision described in this summary
disagrees with the official plan document, the wording of the official plan
document always governs. For information about how to obtain a copy of
a plan document, see Receiving information about each of your
component plans and benefits above.
(Dkt. 1-3, p. 14).
6. The Bank of America Associate Handbook 2010 identifies the plan
administrator of the Group Benefits Program:
Plan administrator
The plan administrator of the Group Benefits Program and
each component plan is the Bank of America Corporation
Corporate Benefits Committee, which is appointed by the
Compensation and Benefits Committee of the Board of
Directors of Bank of America Corporation. As plan
administrator, the Corporate Benefits Committee is
responsible for overall administration of the Group Benefits
Program and each component plan.
The Associate Handbook 2010 provides contact information for the plan administrator.
(Dkt. 1-3, p. 14.)
7. In the chapter entitled ERISA Information (Dkt. 1-3, p. 12), the Bank of
America Associate Handbook 2010 states that “[t]he Leaves of Absence, Disability,
and Workers’ Compensation chapter, the Leaving Bank of America chapter, and
this chapter comprise the summary plan description for the Bank of America Short-term
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Disability Plan, a component plan of the Group Benefits Program.”
8. As to Short-term Disability, the Bank of America Associate Handbook 2010
provides:
Purpose
Bank of America provides time off from work and benefits that replace a
portion of income if you are disabled, up to a maximum of 26 weeks from
the date of your disability, as determined by the Short-term Disability
(STD) Claims Administrator and a treating health care provider. For
purposes of determining eligibility for STD benefits, disabled is defined as
your inability to perform your essential occupation functions, including
working your regularly scheduled hours, for more than seven consecutive
calendar days because of a pregnancy, illness, injury, non-elective
surgery or hospitalization.
Eligibility
.......
An associate must be receiving appropriate care and treatment on a
continuing basis from an eligible treating health care provider while on
STD.
A treating health care provider is defined as a legally licensed Medical
Doctor, Advanced Practice Registered Nurse (APRN), Nurse Practitioner
(NP) and/or a Physician Assistant (PA) who is treating the associate for a
medical condition.
Appropriate care and treatment must meet the following conditions:
It is received from an eligible health care provider listed
above whose medical training and clinical experience are
suitable for treating the disability
It is necessary to meet basic health needs and is of
demonstrable value
It is consistent in type, frequency and duration of treatment
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with relevant guidelines of national medical, research and
health care coverage organizations and government
agencies
It is consistent with the diagnosis of the condition
It has the purpose of maximizing medical improvement
Non-psychiatrist health care providers may provide treatment for up to 30
days for behavioral health or substance abuse conditions.
Bank of America reserves the right to request a second opinion as a
condition of benefit continuation. Benefits are payable, after the seven
day elimination period, as long as the disability continues, for up to 26
weeks. After 26 weeks of continuous disability, an associate may be
eligible to apply for Long-term Disability (LTD) benefits.
Applying for STD benefits
First, contact your manager and follow the specific requirements of your
line of business (LOB) regarding reporting a leave of absence.
Second, contact the STD Claims Administrator to initiate a claim within 15
calendar days of the date of disability. Aetna is the STD Claims
Administrator for Bank of America. Contact Aetna at 1.877.444.1012.
......
Third, you or your health care provider must submit any required
supporting medical documentation within 15 calendar days of contacting
the STD Claims Administrator to initiate your claim. Although the STD
Claims Administrator will contact the treating health care provider, it is
your responsibility to ensure the treating health care provider provides the
requested information to the STD Claims Administrator. Failure to provide
the requested medical information within 15 calendar day period may
result in a denial of the claim and a lapse in benefits.
Note: Bank of America system access is revoked on the effective date of
your leave.
Extension of Short-term Disability
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During an approved period of STD and prior to the expected return to work
date, if you are within the 26-week STD period maximum and would like to
extend the STD, you should contact your manager to provide an updated
anticipated return date. In addition, you should contact the STD Claims
Administrator to request an extension of your STD period.
Benefit payments
You will receive benefit payments through the regular payroll process. All
deductions, including required contributions for health and insurance
coverage, 401(k) contributions, tax withholdings and garnishments will
continue. Employer-paid STD benefits are considered taxable income.
(Dkt. 1-2, p. 1).
9. The Bank of America Associate Handbook 2010 states:
Claiming your benefits
The Bank of America Corporation Corporate Benefits Committee, as plan
administrator, has delegated to the Pay and Benefits Escalation Team, the
Benefits Appeals Committee and insurance companies or service
providers discretionary authority to determine eligibility for benefits and
construe the terms of the applicable component plan and resolve all
questions relating to claims for benefits under the component plan. If you
think you are eligible for a certain benefit from any component plan, but
believe you are not receiving that benefit, you must submit a claim to
receive that benefit.
.......
Appealing a denied claim for benefits
Requests to review denied claims (appeals) for group health plans, Shortterm Disability, and all insured benefits under the Group Benefits Program
should be directed to the insurance company or service provider that
insures or administers the applicable component plan at the address listed
on the notice of claim denial. For the other component plans under the
Group Benefits Program requests to review denied claims (appeals)
should be directed to the Bank of America Benefits Appeals Committee.
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(Dkt. 1-3, p. 15).
10. The Bank of America Associate Handbook 2010 identifies what the STD
Plan does not cover, (Dkt. 1-2, p. 2), including:
“If you fail to have a physical examination and/or provide satisfactory
objective evidence of disability or continuing disability or other information
requested by the STD Claims Administrator.”
11. Bank of America Corporation’s Short Term Disability (“STD”) plan is funded
by Bank of America. (Dkt. 1-3, p. 18). Aetna, STD Claims Administrator, determines
eligibility for STD benefits and, if granted, Bank of America pays the benefits. (Dkt. 411. pp. 57, 70).
12. Bank of America provides Medical Leave to associates who do not meet the
eligibility requirements for Short Term Disability benefits. The unpaid time off is first
funded with occasional illness days and sickness benefit days, if applicable. (Dkt. 27-3,
p. 15).
13. Aetna is the Leaves Administrator for Bank of America. (Dkt. 27-3, p. 18).
14. Plaintiff requested FMLA leave on 11/22/2010. (Dkt. 27-5, p. 31).
15. As of 1/18/2011, Aetna denied FMLA leave for 11/23/2010-12/7/2010 due to
incomplete supporting documents (no return-to-work date on certification form.) (Dkt.
27-5, pp. 27, 29, 33).
16. Aetna approved FMLA leave for Plaintiff Hopp for 12/8/2010 through
2/28/2011. (Dkt. 27-5, p. 8). Aetna deemed Plaintiff’s FMLA leave exhausted as of
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2/28/2011.
17. Aetna approved Bank of America Medical Leave (“BACMED”) for 12/8/2010
through 2/28/2011, and from 3/1/2011 through 5/31/2011. (Dkt. 27-5, p. 8).
18. Plaintiff returned to work on 6/1/2011 with no restrictions. (Dkt. 27-3, p. 65;
Dkt. 27-5, pp. 2-3).
19. Aetna denied Plaintiff’s Short Term Disability Claim on 12/17/2010:
STD Benefits Are Not Paid in the Following Circumstance(s):
If you fail to have a physical examination and/or provide satisfactory
objective medical evidence of disability or continuing disability or other
information requested by Aetna.
Our records indicate we have not been able to collect the information
needed due to lack of response from your health care providers. Your
provider, Dr. Richard Timmons, submitted clinical information on 12/7/10
in the form of Attending Physician Statement in attempt to provide the
needed clinical information to support your claim. The information lacked
the observed symptoms that would directly prevent you from performing
duties of your occupation as a Home Services Specialist II. While the
provider indicated anxiety and stress the information lacked how
frequency/duration/intensity of your symptoms, would prevent [you] from
doing your job.
The information submitted does not provide the needed clinical
information to indicate that you would be unable to perform the duties of
your occupation.
In order to substantiate an inability to perform the core elements of your
occupation as a Home Services Specialist II, from a psychological
perspective, your provider would have to submit examination findings
which document the presence of impairments. Examples of such findings
would be behavioral observations, including the frequency, duration and
intensity of symptoms observed, the results of a formal mental status
examination, or any performance-based tests of psychological functioning
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with standardized scores.
We will review any additional information you submit, such as medical
information from any medical providers who have treated you for the
condition(s) in question, including but not limited to:
A detailed narrative report for the period 11/23/2010 through
current, outlining specific physical and/or mental limitations
and restrictions related to your disability claim
Your treating medical provider’s prognosis, including the
current course of treatment, frequency of visits, and specific
medications prescribed
Copies of diagnostic studies conducted during the above
period, such as test results, X-rays, laboratory data, and
clinical findings
Any documents or information specific to the condition(s) for
which you are claiming disability and which would assist in
the evaluation of your disability claim
Any other information or documentation you believe may
assist us in reviewing your claim
(Dkt. 27-3, pp. 3-4).
20. On 1/4/2011, Plaintiff Hopp appealed Aetna’s decision to deny STD benefits.
21. At the conclusion of the appeal, 5/27/2011, Aetna again denied Plaintiff’s
claim for STD benefits. (Dkt. 27-2, pp. 41-46.
22. Health insurance is a separate component plan of Bank of America’s Group
Benefits Program. Aetna Policy GP-721040 is a Group Life and Accident and Health
Insurance Policy, issued on January 6, 2009. (Dkt. 34-1, p. 11).
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23. The Employee Assistance Program (“EAP”) is a component plan of the
Group Benefits Program. The Employee Assistance Program offers counseling and
referral services. Bank of America funds the Employee Assistance Program, and Aetna
is the plan administrator. (Dkt. 1-3, p. 18). The EAP “provides unlimited confidential
telephonic consultations and up to three face-to-face counseling sessions per issue.
EAP can help with life’s challenges, stressful situations and mental health issues.” (Dkt.
27-3, p. 19).
III. Discussion
A. Standard of Review
The parties disagree as to the standard of review that applies to Defendant
Aetna’s decision to deny STD benefits to Plaintiff Hopp.
Plaintiff Hopp argues that the language in the SPD is not sufficient to sustain a
finding of discretionary authority, in light of Cigna Corp. v. Amara, 131 S. Ct. 1866
(2011)(summary plan descriptions provide communication with beneficiaries about the
plan but ...their statements do not themselves constitute the terms of the plan). Plaintiff
Hopp argues that Defendants have not met their burden of establishing Defendants are
entitled to deferential review because they have not produced a plan document properly
delegating discretion to Aetna. Plaintiff Hopp further argues that there is no plan
document which established a procedure for delegating discretion.
Defendants respond that Plaintiff Hopp brought suit under the SPD attached to
Plaintiff’s Complaint, which states that Aetna had discretionary authority to determine
eligibility for benefits, and, based on other cases involving Defendants, Defendants did
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not believe that Aetna’s discretionary authority was in dispute. Defendants have also
offered a copy of the applicable Group Life and Accident Health Insurance Policy, which
provides that Aetna has discretionary authority to determine whether and to what extent
eligible employees and beneficiaries are entitled to benefits.
In Cigna Corp. v. Amara, 131 S.Ct. 1866 (2011), Cigna changed its pension plan
from a defined benefit plan to a cash balance plan. Respondents challenged the
adoption of the new plan, contending that Cigna did not give them proper notice of the
changes to their benefits. The District Court determined that Cigna’s disclosures
violated Cigna’s ERISA obligations, reformed the plan and directed Cigna to pay
benefits accordingly. The Supreme Court agreed to determine whether the District
Court applied the proper standard, “likely harm,” in determining whether Cigna’s notice
failures caused sufficient injury to Respondents to warrant legal relief. The Supreme
Court first considered whether Sec. 502(a)(1)(B) authorized the relief the District Court
provided, and found that it did not. The Supreme Court noted that Sec. 502(a)(3)
authorizes equitable relief, and the standard to be applied depends on the equitable
relief provided. The Supreme Court outlined the equitable principles the District Court
might apply on remand.
In the course of determining that Sec. 502(a)(1)(B) did not authorize the relief the
District Court provided, the Supreme Court rejected the Solicitor General’s argument
that the plan includes the disclosures that constitute the summary plan descriptions.
The Supreme Court noted that Sec. 102(a), which obliges plan administrators to furnish
summary plan descriptions, by its syntax suggests that the information about the plan
provided by the disclosures is not itself part of the plan. The Supreme Court also
considered the division of authority between the plan sponsor and the plan
administrator, and the intended objective of summary plan disclosures, which is “clear,
simple communication.” The Supreme Court expressed that making the summary plan
disclosures legally binding might lead plan administrators to sacrifice simplicity and
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comprehensibility for in order to describe plan terms in the language of lawyers. Taking
all of the above reasons together, the Supreme Court concluded that summary
documents provide communication with beneficiaries about the plan but that their
statements do not themselves constitute the terms of the plan for the purposes of Sec.
502(a)(1)(B), and further found that the District Court could not find authority in that
section to reform Cigna’s plan as written.
In the Introduction to ERISA Information, the Bank of America Associate
Handbook 2010 states that:
The Group Benefits Program is, and is treated as, a single
welfare benefit plan solely for purposes of annual report
(Form 5500) filings and the determination of whether an
eligible retiree is entitled to the COBRA premium reduction
provided under the American Recovery and Reinvestment
Act of 2009, as amended. For all other purposes under
ERISA, the Internal Revenue Code, COBRA, HIPAA, the
Patient Protection and Affordable Care Act, as amended,
and any other applicable legal requirements, each
component plan is, and is treated as, a separate plan.
(Dkt. 1-3, p. 12). The Court notes the following provisions in the Group Benefits Plan:
1) Introduction (Dkt. 41-1, p. 6); 2) First Amendment (Dkt. 41-01, p. 72); 3) Second
Amendment (Dkt. 41-1, p. 90).
The Bank of America Associate Handbook 2010 indicates that the SPD is
intended to fulfill the statutory requirement that all plan beneficiaries receive an
understandable explanation of the benefits available to them. The SPD is required to
be “sufficiently accurate and comprehensive to reasonably apprise such participants
and beneficiaries of their rights and obligations under the plan.” See 29 U.S.C. Sec.
1022(a). The SPD states that “The Group Benefits Program and each component plan
are based on an official plan document...You can find full component plan details in the
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official plan documents.” (Dkt. 1-3, p. 15). The SPD specifically provides that, in the
event a component plan provision described in the summary disagrees with the official
plan document, the wording of the official plan document always governs. (Dkt. 1-3, p.
15). The SPD states that the provisions of summary plan description do not establish
enforceable employee rights, contractual or otherwise, and do not establish an
employment relationship enforceable by associates. (Dkt. 1-3, p. 12).
In this case, there is no disputed issue as to the adequacy of the SPD, whether
an inadequate SPD caused harm to Plaintiff warranting the award of legal relief,
whether there are terms in the SPD that are not present in the Plan or whether the SPD
misrepresents the provisions of the plan. After reviewing the terms of the Group
Benefits Plan, the Court recognizes that in this case the SPD functions both as the
SPD, a summary of significant terms of the SPD provided to participants, and, as
incorporated in the Group Benefits Plan, an expression of the substantive provisions of
the STD Plan. The Court considers the official plan document of the STD Plan to be the
Group Benefits Plan, and the incorporated SPD.
The Court has examined the terms of the Group Benefits Program. (Dkts. 41-1,
41-2). Article VII of the Group Benefits Program, Administration, outlines in detail the
powers of the Plan Administrator. (Dkt. 431-1, pp. 32-35). Article VIII, Claims and
Review Procedures, outlines in detail the authority of the Claims Administrator, the
authority of the Plan Administrator, and claims procedures for determinations of
disability and appeals of denied claims. (Dkt. 41-1, pp. 36-47). The Plan Administrator
delegates to the Claims Administrator acting under Par. 8.1(a) the authority of the Plan
Administrator as provided under Sections 7.1(b)(1) through (6). (Dkt. 41-1, p. 36).
The Group Benefits Plan provides that the Plan Administrator has the power to
delegate its discretionary power to control and manage the operation and administration
of the Plan, to delegate to Claims Administrators the authority to make claims
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determinations with the same discretion as the Plan Administrator, and to allocate
among its members or Employees its responsibilities under the Plan. (Dkt. 41-1, pp. 3233).
The Plan Administrator may assign to a Claims Administrator issues of whether
an individual is eligible to participate in or obtain coverage under, or whether an eligible
individual is enrolled for participation in, or coverage under, a component plan. (Dkt.
41-1, p. 36). The Group Benefits Program identifies the Plan Administrator, and the
Claims Administrator for the STD Plan. (Dkt. 41-1, p. 70, p. 87, p. 118).
The Court notes that the Summary Plan Description (“SPD”) provides that the
Bank of America Corporation Corporate Benefits Committee has delegated to the
service provider, Aetna, discretionary authority to determine eligibility for benefits,
construe the terms of the STD plan, and resolve all questions relating to claims for
benefits under the component plan.
This language is sufficient for the Court to find
that deferential review is appropriate.
The Court finds that Aetna, the claims administrator, had discretion to determine
eligibility for benefits, to construe the terms of the STD Plan and to resolve all questions
relating to claims for benefits under the STD Plan. Therefore, the Court will review the
decision of the administrator under the arbitrary and capricious standard of review.
Under this standard, the Court determines whether there is rational support in the
record for Defendants’ determination that Plaintiff was not disabled because of illness or
injury so that Plaintiff was unable to perform all of the essential functions of her job.
B. Plaintiff’s Claim for STD Benefits
Under ERISA, the plaintiff has the burden of showing she is entitled to benefits
under the terms of the Plan. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038,
1040 (11th Cir. 1998). The SPD defines “disabled” as the claimant’s inability to perform
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the claimant’s essential occupation functions, including working the claimant’s regularly
scheduled hours, for more than seven consecutive calendar days because of a
pregnancy, illness, injury, non-elective surgery or hospitalization.
Indicia of arbitrary and capricious decisions may include lack of substantial
evidence, procedural irregularities, a mistake of law, bad faith and conflict of interest by
the fiduciary. Sandoval v. Aetna Life and Cas. Ins. Co., 967 F.2d 377 (10th Cir. 1992);
Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119-20 (10th Cir. 2006); Adams v. SBC
Communications, Inc., 200 Fed. Appx. 766, 771-774 (10th Cir. 2006).
At the outset, the Court notes that there is no structural conflict of interest. Bank
of America funds the Short Term Disability Plan, and Aetna, a third party administrator,
determines eligibility for benefits and otherwise resolves all claim issues. Pinto v.
Reliance Standard Life Ins. Co., 214 F.3d 377, 383 (3d Cir. 2000).
1. Substantial Evidence
The SPD states that “satisfactory objective medical evidence of disability” is
required. Plaintiff’s STD claim was opened on 11/23/2010; Plaintiff’s last day of work
was 11/22/2010.
In describing what prevented Plaintiff from working, Plaintiff stated:
“Why out of work: very busy job high demand, lot of volume
of loans and there is no way you can close 7 loans a week,
job very stressful. I was trying to work overtime to keep up
with the volume and it’s impossible, my husband is ill with
cancer and my mother died Nov. 6th.”
(Dkt. 27-1, p. 16).
Plaintiff was an established patient with Dr. Timmons. The medical records of
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Dr. Timmons show that on 11/18/2010, on physical examination, Plaintiff was alert and
oriented times 3 [time, place and person], and was in no acute distress, but crying at
times. (Dkt. 27-4, p. 21). The records indicate that Plaintiff lost eight pounds between
the last office visit in September, 2010 and 11/18/2010, and Plaintiff reported difficulty
sleeping. Plaintiff expressed that Plaintiff was working overtime, and Plaintiff would like
to work in a different branch of the bank. The office notes state “The bank suggested
that [Plaintiff] take a leave of absence but from an employment perspective that’s not
[Plaintiff’s] best option.” (Dkt. 27-4, p. 21). Dr. Timmons prescribed citalopram, 20 mg.
a day, and alprazolam .25 mg., twice daily as needed. In the form dated 12/3/2010
(Dkt. 27-4, pp. 17-19), Dr. Timmons responded “Yes” to the question “Is the employee
unable to perform any of his/her job functions due to the condition?” stating “She claims
her employer instructed her to take time off because her emotional state will not allow
her to perform her job.” (Dkt. 27-4, p. 17). In describing the relevant medical facts
related to the condition “for which the employee seeks leave,” Dr. Timmons states
“stress related to Husband’s illness and
mother’s recent death.” (Dkt. 27-4, p. 17). Dr. Timmons recommended a follow-up
appointment in January, or a psychiatric evaluation. (Dkt. 27-5, p. 36).
On 12/17/2010, Aetna notified Plaintiff Hopp that the clinical information
submitted` by Dr. Timmons “lacked the observed symptoms that would directly prevent
[Plaintiff] from performing the duties of [Plaintiff’s] occupation as a Home Services
Specialist II. While the provider indicated anxiety and stress the information lacked how
frequency/duration/intensity of symptoms would prevent [Plaintiff] from doing [her] job.”
(Dkt. 27-3, p. 3). Aetna further states:
The information submitted does not provide the needed clinical
information to indicate that you would be unable to perform the duties of
your occupation.
In order to substantiate an inability to perform the core elements of your
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Case No. 8:12-CV-485-T-17TBM
occupation as a Home Services Specialist II, from a psychological
perspective, your provider would have to submit examination findings
which document the presence of impairments. Examples of such findings
would be behavioral observations, including the frequency, duration and
intensity of symptoms observed, the results of a formal mental status
examination, or any performance based tests of psychological functioning
with standardized scores.”
(Dkt. 27-3, p. 3).
Aetna notified Plaintiff Hopp that Aetna would review additional information
Plaintiff submitted, including:
A detailed narrative report for the period 11/23/2010 through current,
outlining specific physical and/or mental limitations and restrictions related
to your disability claim;
Your treating medical provider’s prognosis, including current course of
treatment, frequency of visits and specific medications prescribed;
Copies of diagnostic studies conducted during the above period, such as
test results, X-rays, laboratory data, and clinical findings;
Any documents or information specific to the condition(s) for which you
are claiming disability and which would assist in the evaluation of your
disability claim;
Any other information or documentation you believe may assist us in
reviewing your claim.
(Dkt. 27-3, p. 4).
Aetna’s request for clinical information which documents the presence of
impairments shows that Aetna was seeking clinical information to document the severity
of any impairment of Plaintiff’s ability to function in the workplace. (Dkt. 27-2, p.
19)(“documentation reviewed does demonstrate that condition is severe enough to
prevent [Plaintiff] from performing occupational duties”). In the Provider Certification
from, the only condition Dr. Timmons identified is “Stress related to Husband’s
condition and mother’s death.” Dr. Timmons’ office notes also indicate “anxiety with
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Case No. 8:12-CV-485-T-17TBM
normal grief reaction, and anxiety related to a great deal of stress on multiple fronts.”
The diagnosis of “stress” or “anxiety,” even if severe, is not a diagnosis of an anxiety
disorder. Even if that diagnosis were a diagnosis of the presence of a psychiatric
disorder, a diagnosis alone is not sufficient to establish that Plaintiff was disabled i.e.
could not perform the essential functions of her occupation. Dr. Timmons’ records do
not contain any finding that Plaintiff could not perform her job, aside from the alleged
instruction from Plaintiff’s employer that Plaintiff take a leave of absence.
The fact that Plaintiff’s claim for short term disability benefits was based on
treatment for symptoms of severe stress rather than a physical impairment does not
alter the plan’s requirement of objective evidence.
Defendant Aetna must take into
account Plaintiff’s subjective reports of fatigue [or other subjective complaint], Stiltz v.
Metropolitan Life Ins. Co., 244 Fed. Appx. 260, 264-65 (11th Cir. 2007), but may also
consider the extent to which objective medical evidence supports or contradicts
Plaintiff’s subjective reports. Wangenstein v. Equifax, 191 Fed. Appx. 905, 911-12 (11th
Cir. 2006). In this case, Aetna was not seeking an unreasonable level of objective
evidence that could never be provided. Stiltz v. Metropolitan Life Ins. Co., 244 Fed.
Appx. 260 (11th Cir. 2007).
To the extent that Dr. Timmons’ determination that Plaintiff was unable to
perform an essential function of Plaintiff’s job is based on Bank of America’s alleged
instruction to Plaintiff that Plaintiff take a leave of absence, Dr. Timmons’ determination
is not based observed symptoms or behavior that prevented Plaintiff from performing
the essential functions of Plaintiff’s job.
Aetna, as the Leaves Administrator, rather
than the employer, Bank of America, had the discretion to approve FMLA leave and
BACMED. Plaintiff applied for both FMLA leave and BACMED, and both were granted
by Aetna based on standard
FMLA Certification forms furnished by Plaintiff’s health care providers.
Plaintiff appealed the denial of STD benefits on 1/4/2011. Aetna considered
additional documentation from Alice Savage, LHMC, CAP and from Dr. Gustavo Cuadra
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in evaluating Plaintiff’s claim on appeal. (Dkt. 27-2, pp. 44-46).
The records from Ms. Savage show that the cognitive testing performed on
12/8/2010 and 1/5/2011 was within normal limits. (Dkt. 27-3, pp. 80, 90); Plaintiff was
able to perform some memory functions, but unable to perform the memory function of
“unrelated words after five minutes.” The records of 12/15/2010 reflect that “[Plaintiff’s]
employer told [Plaintiff] to go on short term disability.” (Dkt. 27-3, p. 89). Plaintiff’s
emotional functioning was described as “crying- -depressed- -anxious- -stressed- bereavement,” with 2-3 minutes of panic attacks whenever the phone rings at work.
The behavioral symptoms observed included crying, wringing hands and pressured
speech. (Dkt. 27-3, pp. 80, 88).
The records indicate that Plaintiff did not have
suicidal ideation on 12/8/2010, and 1/5/2011 (Dkt. 27-3, pp. 90, 93, 97).
As of 1/5/2011, Plaintiff was able to perform ADLs (activities of daily living).
Activities of daily living typically include activities such as feeding onself, bathing,
dressing, grooming, work, homemaking and leisure. The medical records indicate a
significant weight loss and sleep disturbances, but Plaintiff did not have socialization
problems, could clean/maintain her residence, operate a motor vehicle, do routine
shopping and pay bills. (Dkt. 27-3, p. 100).
Ms. Savage diagnosed Plaintiff with an adjustment disorder with mixed anxiety
and depressed mood (309.28). (Dkt. 27-3, p. 93). Ms. Savage noted a GAF of 63 on
12/8/2010 and a GAF of 60 on 1/5/2011.
“The Global Assessment of Functioning (GAF) scale is a numeric scale (0
through 100) used by mental health clinicians and doctors to rate the social,
occupational and psychological functioning of adults. See Am. Psychiatry Ass'n
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000).” See Reid v.
Metropolitan Life Ins. Co., 944 F.Supp.2d 1279, 1319 (N.D. Ga. 2013). A range of 6170 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some
difficulty in social, occupational or school functioning. A range of 51-60 indicates
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Case No. 8:12-CV-485-T-17TBM
moderate symptoms (e.g. flat affect and circumlocutory speech, occasional panic
attacks) or moderate difficulty in social, occupational or school functioning).
Dr. Cuadra performed a mental status exam on 2/2/2011, which was within
normal limits; at that time memory was “intact,” and attention/concentration,
comprehension, insight and judgment were “good.” Dr. Cuadra noted a depressed
mood. (Dkt. 27-3, p. 70). Dr. Cuadra diagnosed “major depression, single episode,
mild” and prescribed Prozac and Klonopin. In further treatment, the dosage of Prozac
was increased from 20 mg. daily to 40 mg. and then to 60 mg. daily. (Dkt. 27-3, pp. 6770). Initially, Dr. Cuadra indicated a GAF of 50. A GAF of 50 indicates serious
symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational or school functioning (e.g. no friends, unable
to keep a job, cannot work). Dr. Cuadra performed additional mental status exams on
3/2/2011 and 4/20/2011 which showed Plaintiff’s mental status to be “generally linear
and relevant.” In the records, Dr. Cuadra notes no suicidal or homicidal ideation and
no psychosis.
The Court has reviewed the Administrative Record. The medical records of
Plaintiff’s entire course of treatment include some indications that Plaintiff’s impairment
was not severe, and other indications that Plaintiff’s impairment was very severe. For
example, as reported by Plaintiff, the phone range constantly at work, with each call
precipitating a brief panic attack, putting Plaintiff in a constant state of turmoil. Plaintiff
did not have the same difficulties outside of the workplace.
Plaintiff Aetna sought objective medical evidence that documented the severity of
Plaintiff’s impairment, as required by the STD plan, and denied the STD claim initially
and after appeal when Aetna concluded that the objective medical evidence provided
did not establish that Plaintiff could not perform essential duties of her job for the period
11/23/2010 to 6/1/2011. Defendant Aetna explained in detail the how Defendant Aetna
made the initial determination, and how Defendant Aetna made the final determination
after reviewing Plaintiff’s claim on appeal.
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2. Procedural Irregularities
a. FMLA and BACMED Benefits
Plaintiff argues that Aetna took inconsistent positions when Aetna granted
Plaintiff’s request for leave, but denied short term disability benefits.
Inconsistent decisions in awarding benefits can be a factor in determining
whether a decision is arbitrary and capricious. Metropolitan Life Ins. Co. v. Glenn, 554
U.S. 105, 118-19 (2008).
Plaintiff was granted both FMLA and BACMED benefits. FMLA benefits are
awarded based solely on information provided in a certification form, filed by an
appropriate health care provider. See 29 C.F.R. Sec. 825.306(b). The certification is
sufficient if it contains the following: “1) The date on which the serious health condition
commenced; 2) the probable duration of the condition; 3) the appropriate medical facts
within the knowledge of the health care provider regarding the condition; [...and] 4)(B)
for the purposes of leave under Sec. 2612(a)(1)(D) of this title, a statement that the
employee is unable to perform the functions of the position of the employee...” See 28
U.S.C. Sec. 2613. Under FMLA regulations, Aetna can ask only for information
contained within the certification form. 29 C.F.R. Sec. 825.306(b).
BACMED is intended to provide unpaid time off for “associates who do not meet
the eligibility requirements for [STD] benefits.” STD benefits are granted when an
associate is disabled under the plan, in accordance with the definition noted above.
The STD benefit plan requires physical examination and/or satisfactory objective
medical evidence of disability, a requirement not required for eligibility for FMLA leave
or BACMED. The applicant for BACMED must apply within fifteen days of the date the
medical condition commenced, must provide the date last worked, the date first treated
for the medical condition, the nature of the medical condition and expected return to
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Case No. 8:12-CV-485-T-17TBM
work date, and the name, address and telephone number of the treating health care
provider. (Dkt. 41-2, p. 8).
The FMLA leave provisions indicate that FMLA leave ends when the claimant or
family member no longer has a qualifying condition under the provisions of Family Care
Leave policy, a determination to be made by the Leaves Administrator. (Dkt. 41-2, p.
6). BACMED leave provisions indicate that BACMED ends when: “1) [a claimant is] no
longer considered to be unable to work by [the claimant’s] treating health care provider
and the Leaves Administrator; 2) when [a claimant is] capable of performing the
essential functions of [the claimant’s] occupation; 3) when [a claimant] fails to have a
physical examination and/or provide[s] satisfactory objective medical documentation of
continuing medical condition when requested by the Leaves Administrator.......”
Granting FMLA leave and BACMED is not necessarily inconsistent with the
denial of STD benefits, since FMLA leave and BACMED can be approved in the
absence of objective medical evidence that prevents an applicant from performing
essential functions of the applicant’s work, and based only on certifications from the
applicant’s health care provider.
b. Selective Review of Records
Plaintiff argues that Plaintiff went to the EAP Professional that Bank of America
sent Plaintiff to, but Aetna disregarded that provider’s opinion.
In general, an Employee Assistance Program is intended to provide early
assessment of individual problems, short-term counseling for problems that affect an
employee’s work performance, and referral services. The Court notes that Aetna
agreed to consider the information provided by Alice Savage, MS, LMHC, CAP.
Ms.
Savage, as an “MS, LMHC, CAP” is qualified by education and experience to offer
therapy and psychological testing and evaluation. The Court understands Ms. Savage
to have the following credentials: Master of Science, Licensed Mental Health Counselor,
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Case No. 8:12-CV-485-T-17TBM
Certified Addiction Professional. The SPD for the STD Plan specifies that:
A treating health care provider is defined as a legally licensed Medical
Doctor, Advanced Practice Registered Nurse (APRN), Nurse Practitioner
(NP) and/or a Physician Assistant (PA) who is treating the associate for a
medical condition.
Ms. Savage is not within any of the categories specified in the SPD for the STD Plan.
Ms. Savage provided three one-hour sessions of counseling, and did not have the
benefit of an established patient relationship.
As to the three authorized EAP
sessions, the therapy offered by Ms. Savage filled the gap until Plaintiff could arrange
an appointment with a psychiatrist, which Plaintiff explained to Aetna could not be done
until mid-January. ( Dkt. 27-1, p. 32). A clinical psychologist is within the definition of
health care provider for the purposes of FMLA leave. (Dkt. 41-2, p. 14). Since FMLA
leave and BACMED leave run concurrently, the certification of Ms. Savage was
sufficient for both types of leave. (Dkt. 41-2,. 9).
Plaintiff’s FMLA leave was approved
through 2/28/2011, at which time it was exhausted, and Plaintiff’s BACMED was
approved through 6/7/2011. (Dkt. 27-5, p. 23). The Court understands that the
approval of BACMED through 6/7/2011 was based on the Certification of Ms. Savage.
(Dkt. 27-3, p. 84).
Based on the administrative record, the Court understands that Plaintiff’s
supervisor referred Plaintiff to the Employee Assistance Plan. It is not clear to the Court
why it was not possible for Plaintiff to obtain medical treatment for Plaintiff’s serious
health condition in December, 2010 rather than February, 2011 (Dkt. 27-1, p. 32); the
sessions with Ms. Savage were offered under a benefit plan separate from Plaintiff’s
medical insurance.
The Court notes that Plaintiff had already applied for STD benefits and for a
leave of absence by the time Plaintiff met with Ms. Savage. Plaintiff’s last day of work
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Case No. 8:12-CV-485-T-17TBM
was 11/22/2010, and the first meeting with Ms. Savage was on 12/8/2010. The
Provider Certification forms completed by Ms. Savage were sufficient for the purpose of
Plaintiff’s leave, but the STD Plan requires satisfactory objective medical evidence of
functional impairment.
The records of Ms. Savage indicate that Plaintiff’s cognitive
functioning was, for the most part, within normal limits, but Plaintiff’s emotional
functioning was such that Ms. Savage recommended that Plaintiff not work and would
need additional treatment. (Dkt. 27-3, pp. 80-85).
Rather than disregard the opinion of Ms. Savage, Aetna accepted it for the
purpose of FMLA leave and BACMED. The opinion of Ms. Savage was not sufficient for
the purpose of STD benefits, where satisfactory objective evidence is necessary.
The
behavioral observations of extreme distress conflict with the essentially normal mental
status exams from 12/8/2010 through 1/5/2011. It was reasonable for Aetna to seek
additional evidence to understand Plaintiff’s functional impairment during the relevant
time period.
c. Reliance on Opinions of Non-Examining Physicians
Plaintiff argues that Aetna did not reasonably rely on the opinions of two nonexamining doctors to the exclusion of substantial evidence in the record to determine
that was not Plaintiff disabled.
In some cases, a consistent diagnosis of a condition that cannot be quantifiably
measured, e.g. chronic pain syndrome, along with consistent observations of physical
manifestations of the condition may become objective evidence. Oliver v. Coca-Cola
Co., 497 F.3d 1181, 1196 (11th Cir. 2007). The records of Dr. Timmons, Ms. Savage
and Dr. Cuadra are consistent in that all document Plaintiff’s high level of stress, and
high level of anxiety. Ms. Savage and Dr. Cuadra documented Plaintiff’s depressed
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Case No. 8:12-CV-485-T-17TBM
mood.
However, the only limitation noted by Dr. Timmons as to Plaintiff’s ability to
perform her job is that Plaintiff’s employer instructed Plaintiff to take time off because
Plaintiff’s emotional state would not allow her to perform her job. (Dkt. 27-5, p. 35).
This opinion is not based on Dr. Timmons’ behavioral observations, including the
frequency, intensity and duration of observed symptoms, a mental status exam, or a
performance-based test of psychological functioning with standardized scores. The
only symptom Dr. Timmons observed was that Plaintiff was crying at times; otherwise
the records of Dr. Timmons indicate a discussion of the multiple stressors in Plaintiff’s
life, and the alternatives Plaintiff wanted to pursue.
As discussed above, the records of Ms. Savage indicate substantially normal
cognitive function, but also indicate severe emotional distress. Dr. Cuadra did not
submit any Provider Certifications for the period of time before 2/2/2011,(Dkt. 27-4, p.
46), or during the time Dr. Cuadra treated Plaintiff. In assessing Plaintiff on 2/2/2011,
Dr. Cuadra initially set a GAF of 50, indicating severe impairment such that the patient
could not work, but in Dr. Cuadra’s records there is no specific observed symptom or
finding that explains what job function Plaintiff could not perform.
The mental status
exams that Dr. Cuadra performed were substantially within normal limits, with the
exception of depressed mood.
The Court notes that a review was conducted by Antoinette Acenas, M.D.
(Board-certified in psychiatry) in March, 2011 (Dkt. 27-3, pp. 72-75), and by Randy
Rummler, M.D. (Board-certified in psychiatry) in May, 2011 (Dkt. 27-3, pp. 59-62).
There was a telephone peer-to-peer consultation with Dr. Cuadra on 3/11/11; repeated
attempts to reach Ms. Savage were made without success, and the review was
completed without consultation with Ms. Savage. Dr. Acenas’ review states:
Based on the provided documentation and telephonic
consultation with Dr. Cuadra from 11/23/2010 to 4/4/2011,
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Case No. 8:12-CV-485-T-17TBM
the claimant has no psychiatric impairment that would
preclude her from performing her customary sedentary job
as a Home Service Specialist II......Claimant’s mental status
examinations consistently were within normal limits in all of
her office visits with providers, which would indicate that the
claimant has no psychiatric impairment.
......
Based on the review of the provided documentation and
telephonic consultation with Dr. Cuadra, restriction or
limitation imposed by the treating provider was reviewed and
in my profession (sic) judgment it is not appropriate. The
return to work imposed by the treating provider is
undetermined and the claimant has no psychiatric
impairment that would translate to this restriction and
limitation, nor preclude her from performing her usual
sedentary job from 11/23/2010 through 4/4/2011.
(Dkt. 27-3, p. 74).
After the completed report was faxed to Ms. Savage, on 5/12/2011, Ms. Savage
contacted Aetna by telephone and stated she would be willing to participate in a
telephone peer to peer consultation. Since Dr. Cuadra provided additional information
on 5/18/2011, a second review was performed to incorporate the new information and to
afford Ms. Savage the opportunity to participate in a telephone peer to peer
consultation. After repeated attempts to reach Ms. Savage by telephone were not
successful, the review was completed without additional input from Ms. Savage. (Dkt.
27-2, pp. 44-45). The reviewer, Dr. Rummler, concluded that the medical records did
not establish the presence of severe or significant psychiatric impairment, that the
restrictions and limitations imposed were not appropriate and that there was no
evidence of adverse side effects of medication.
An administrator may not refuse to credit reliable evidence, but is not required to
accord special weight to the opinions of a claimant’s treating physician. Black & Decker
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Case No. 8:12-CV-485-T-17TBM
Disability Plan v. Nord, 538 U.S. 822 (2003). In this case, the independent experts were
not required to physically examine Plaintiff, and their failure to do so does not render
their opinions invalid. See Richey v. Hartford Life and Accident Ins. Co., 608
F.Supp.2d 1306, 1312 (M.D. Fla. 2009) (“An ERISA administrator is entitled to rely on
the opinion of a qualified consultant who neither treats nor examines the claimant, but
instead reviews the claimant's medical records.”). See also Watts v. Bellsouth
Telecommunications, Inc., 218 Fed. Appx. 854 (11th Cir. 2007)(report of peer reviewer
properly considered; plan put burden of proof on claimant, objective evidence is implicit
requirement); Pinto v. Aetna Life Insurance Company, 2011 WL 536443 (M.D. Fla.
2/15/2011)(unreported).
Defendant Aetna considered all the evidence, but accorded greater weight to the
opinions of Drs. Acenas and Rummler, who reviewed the evidence and concluded it did
not support an impairment of such severity that Plaintiff was precluded from working.
d. Requirement of Objective Evidence
Plaintiff argues that Aetna did not evaluate the impact of the limitations
Plaintiff’s health care providers documented or the restrictions Plaintiff reported due to
her symptoms on Plaintiff’s ability to perform the material duties of Plaintiff’s occupation.
Plaintiff was employed as “Home Service Specialist II.” The Administrative
Record reflects that this included processing mortgage refinancings (Dkt. 27-1, p. 16) ,
underwriting conventional and government files, that Plaintiff had a high level of
underwriting authority and authority to access all of Bank of America’s software
systems. (Dkt. 27-1, p. 5). The job is classified as sedentary. (Dkt. 27-1, p. 9). Plaintiff
reported the job as having a high volume of loans, attempting to close seven loans a
week, and working overtime to keep up with the demand. (Dkt. 27-1, p. 16).
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Case No. 8:12-CV-485-T-17TBM
Dr. Timmons’ records do not indicate the job function that Plaintiff could not
perform, aside from presence at work during regularly scheduled hours. (Dkt. 27-5, p.
42). The records of Ms. Savage state that the job function that Plaintiff is unable to
perform is “unable to focus.” (Dkt. 27-3, p. 83.). The Court understands this to refer to
a deficiency in concentration. When Ms. Savage tested Plaintiff’s concentration,
Plaintiff could maintain her concentration. Ms. Savage estimated a continuous period of
incapacitation from 11/10 -6/11, and that Plaintiff would require follow-up treatment on
a weekly basis. (Dkt. 27-3, p. 84). Ms. Savage further states that, as to the frequency
of flare-ups, and duration of related incapacity that the patient may have over the next
six months, is “Every day.” The Administrative Record indicates that Dr. Cuadra
advised Plaintiff she could not return to work some time prior to 5/3/2011 (Dkt. 27-2, p.
22) and Dr. Cuadra cleared Plaintiff to attempt a return to work at full capacity without
restriction on 6/1/2011. (Dkt. 27-3, p. 65). Dr. Cuadra does not indicate what job
function Plaintiff could not perform in a Provider Certification form or in his progress
notes.
After Defendant Aetna explained what was lacking in the initial report of Dr.
Timmons, Plaintiff was afforded the opportunity to provide additional records which
documented the severity of Plaintiff’s impairment. There was a conflict in the evidence
as to the severity of Plaintiff’s functional impairment. When a plan requires claimants to
provide objective medical evidence, an administrator's decision to deny benefits for
failure to produce such evidence is reasonable, even though such evidence might be
impossible to obtain for that condition. When the plan has no such requirement,
however, the Court evaluates the reasonableness of the decision in light of the
sufficiency of the claimant's subjective evidence and the administrator's actions. Creel
v. Wachovia Corp., 2009 WL 179584 (11th Cir. 2009). In this case, the STD Plan
requires objective evidence. Defendant Aetna did not arbitrarily refuse to consider
reliable evidence. Aetna considered all of the medical evidence, but found it was not
sufficient to establish that Plaintiff’s impairment was so severe that she could not
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Case No. 8:12-CV-485-T-17TBM
perform the essential duties of her job from 11/23/2010 to 6/1/2011.
e. Absence of IME
Plaintiff argues that it was not reasonable for the administrator not to send
Plaintiff for an independent medical examination where a psychiatric claim was present
that encompasses inherently subjective complaints.
Other courts have held that it is not per se an abuse of discretion to opt for a file
review rather than an IME, but it is a factor to be weighed in the overall assessment of
the decision-making process. Glenn v. MetLife, 461 F.3d 660, 671 (6th Cir. 2006)(citing
Calvert v. Firstar Finance Co., 409 F.3d 286, 295 (6th Cir. 2005). In Blankenship v.
Metropolitan Life Ins. Co., 644 F.3d 1350, 1357 (11th Cir. 2011), the Eleventh Circuit
Court of Appeals found that the use of a file review rather than an IME did not count as
evidence that administrator acted arbitrarily and capriciously, particularly in the absence
of other troubling evidence. In Blankenship, the Eleventh Circuit Court of Appeals cites
Bennett v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 554 (6th Cir. 2008)(nothing
inherently objectionable about file review by qualified physician).
In this case, the Court has not found any other procedural irregularities that raise
a red flag, and therefore the absence of an IME does not persuade the Court that
Aetna’s decision to determine Plaintiff’s claim without the benefit of an IME was arbitrary
and capricious.
f. Full and Fair Review
Under ERISA, a claimant is entitled to a “full and fair review” of an adverse
benefit determination. The procedures required for administrative review are set forth in
29 C.F.R. Sec. 2560-503-1. Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241,
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Case No. 8:12-CV-485-T-17TBM
1245 (11th Cir. 2008). A claimant must be afforded at least one administrative appeal of
an adverse benefit decision. 29 C.F.R. Sec. 2560-503-1(h)(1). A claimant must
generally exhaust available administrative remedies under the plan before filing an
ERISA lawsuit.
In this case, Plaintiff was granted additional time to provide records, and had the
benefit of a review of her claim by a different person who was not involved in the initial
adverse claim determination. The appeal process was tolled to permit Plaintiff’s health
care providers to provide additional documentation.
The Court concludes that Aetna afforded Plaintiff a full and fair review of the
decision to deny STD benefits to Plaintiff.
III. Conclusions
A. Defendant’s Motion for Summary Judgment
Bank of America delegated discretion to Aetna to determine eligibility for STD
benefits, as well as to determine claims. The Court concludes that Defendants’ decision
to deny STD benefits to Plaintiff Hopp was not “wrong”; if the decision is found to be
“wrong,” the decision to deny STD benefits was reasonable. The Court therefore grants
Defendants’ Motion for Summary Judgment.
B. Plaintiff’s Motion for Summary Judgment
In determining the standard of review, the Court examined the Plan documents,
and found that Defendant Bank of America delegated discretion to Defendant Aetna.
The Court has concluded that Aetna’s decision to deny STD benefits to Plaintiff Hopp
was not wrong. The Court therefore denies Plaintiff’s Motion for Summary Judgment.
33
Case No. 8:12-CV-485-T-17TBM
Accordingly, it is
ORDERED that Defendants’ Motion for Summary Judgment is granted, and
Plaintiff’s Motion for Summary Judgment is denied. The Clerk of Court shall enter a
final judgment in favor of Defendants Aetna Life Insurance Company and Bank of
America Corporation and against Plaintiff Doris Hopp.
DONE and ORDERED in Chambers, in Tampa, Florida on this
4th day of March, 2014.
Copies to:
All parties and counsel of record
34
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