Alvarado v. Aetna Life Insurance Company

Filing 72

MEMORANDUM Opinion and Order. Signed by the Honorable Rebecca R. Pallmeyer on 9/6/2016. Mailed notice. (kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KIM ALVARADO,
Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
Defendant.

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No. 14 CV 4717
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Kim Alvarado contends that Defendant Aetna Life Insurance Company
wrongfully terminated the long-term disability benefits owed to her under her employersponsored benefit plan. She filed this action challenging that decision pursuant to the Employee
Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1132(a)(1)(B). The parties
have filed cross-motions for summary judgment. For the reasons stated below, the court grants
Plaintiff's motion [52] and denies Defendant's motion [48].
FACTUAL BACKGROUND
Plaintiff worked as a senior client services associate at UBS Financial Services from
November 19, 2004 until October 8, 2012. (DSF ¶ 8; PSF ¶ 10.)

During that time, she

participated in the company's employer-sponsored long-term disability plan, which was issued,
underwritten, and administered by Defendant for the benefit of eligible UBS employees. (Def.'s
Stat. of Undisputed Mat. Facts [50] (hereinafter "DSF") ¶ 3; Pl.'s Stat. of Mat. Facts [54]
(hereinafter "PSF") ¶ 1.) The Plan's "Test of Disability" defines disability as follows:
You are disabled if, because of injury or illness, you are unable to perform all
the material duties of your own occupation, or solely due to injury or illness,
are unable to earn more than 80% of your pre-disability earnings. After
disability benefits have been payable for 24 months, you are considered disabled
if, solely due to injury or illness, you are: (1.) unable to perform the material
duties of any reasonable occupation for which you are, or may reasonably
become, qualified based on education, training or experience solely due to injury
or illness; and (2.) unable to earn 80% or more of your pre-disability earnings.

1

(DSF ¶ 6; PSF ¶ 7 (emphasis in original).)

The Plan grants Defendant the 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." (DSF ¶ 7;
PSF ¶ 9.)
Plaintiff's primary job responsibilities at UBS included answering phones, completing
forms, and typing. (PSF ¶ 11.) In addition, her job required her to engage in the following
physical activities: "frequent" reaching, "occasional" lifting of up to ten pounds, repetitive hand
use for simple grasping, sitting for seven hours per day, and walking for one hour per day.
(DSF ¶ 19; PSF ¶ 11.) In 2012, Plaintiff developed pain and numbness in both of her hands,
and by September of that year, her symptoms had progressed to the point that she found it
difficult to use her arms for daily activities. (PSF ¶ 12.)
I.

Plaintiff's Carpal Tunnel Diagnosis and Surgeries
Although electrodiagnostic tests did not suggest that Plaintiff had any muscle or nerve

problems, three physicians who examined her suspected that she had carpal tunnel syndrome.
On October 5, 2012, her orthopedic physician, Dr. Robert Markus, diagnosed her with
"suspected carpal tunnel syndrome" that had been resistant to conservative treatment attempts.
(DSF ¶ 9; PSF ¶ 13.) But a nerve conduction study (NCV) and an electromyogram (EMG)—
electrodiagnostic tests used to assess muscle and nerve damage—administered that day
returned normal results. (DSF ¶ 10; PSF ¶ 14.) At a follow-up appointment five days later, Dr.
Markus noted that he was "unable to account for patient's symptoms which are suggestive of
carpal tunnel syndrome, but electrodiagnostic studies are normal," and he recommended that
she see an orthopedic hand specialist. (PSF ¶ 15.) On November 1, 2012, Dr. Neal Labana, a
hand surgeon, evaluated Plaintiff and determined that she was suffering from De Quervain's
tenosynovitis 1 and carpal tunnel syndrome, and he administered a corticosteroid injection to

1

De Quervain's tenosynovitis is an often-painful condition that results from
irritation or constriction of the tendons at the base of the thumb. See generally American
2

Plaintiff's right wrist. (DSF ¶ 11; PSF ¶ 16.) After a return visit on November 8, Dr. Labana
recommended that Plaintiff remain off work for the next three weeks. (DSF ¶ 11; PSF ¶ 17.)
The same day, Defendant notified Plaintiff that her claim for short-term disability benefits had
been approved effective October 8, 2012. (PSF ¶ 18.)
Though Dr. Labana eventually released Plaintiff in January to return to work with some
restrictions on her physical activities, Plaintiff continued to struggle with performance of jobrelated tasks such as typing, filing, and lifting objects weighing over five pounds. (Id. ¶¶ 23–24.)
On January 24, 2013, Plaintiff was evaluated by Dr. Anton Fakhouri, a hand and upper
extremity orthopedic specialist, who remarked that "she has clear evidence of . . . carpal tunnel
syndrome despite unremarkable EMG. This is consistent with a false negative result." (Id. ¶
25.) Plaintiff elected to undergo surgery on both wrists, and Dr. Fakhouri recommended that
she remain off work until a future date "to be determined." (Id.) On February 11, 2013, Dr.
Fakhouri performed carpal and cubital tunnel release surgery along with a medial
epicondylectomy 2 on Plaintiff's left arm. (DSF ¶ 12; PSF ¶ 26.) Plaintiff underwent the same
surgery on her right arm on May 20, 2013. (DSF ¶ 22; PSF ¶ 31.)
II.

Plaintiff's Suspected Cervical Spine Problems
Plaintiff reported for follow-up visits with Dr. Fakhouri for the next few months. Although

Dr. Fakhouri noticed some continued tenderness, as well as contusions on her hands and a

Academy of Orthopaedic Surgeons, De Quervain's Tendinosis,
http://orthoinfo.aaos.org/topic.cfm?topic=a00007 (last visited Aug. 31, 2016).
2

Ortho

Info,

The carpal tunnel is the passageway that connects the forearm to the palm on
the palm side of the wrist. The cubital tunnel is the passageway composed in the elbow through
which the ulnar nerve passes. During carpal and cubital tunnel release surgery, surgeons cut
and divide the ligaments at the "roofs" of the respective tunnels to increase the tunnels' size and
decrease pressure on the nerves. Medial epicondylectomy involves the removal of part of the
medial epicondyle (the bony bump at the inside of the elbow) to allow further release of the
nerve. See generally American Academy of Orthopaedic Surgeons, Ulnar Nerve Entrapment at
the Elbow (Cubital Tunnel Syndrome), Ortho Info, http://orthoinfo.aaos.org/topic
.cfm?topic=a00069 (last visited Aug. 31, 2016); American Academy of Orthopaedic Surgeons,
Carpal Tunnel Syndrome, Ortho Info, http://orthoinfo.aaos.org/topic.cfm?topic=a00005 (last
visited Aug. 31, 2016).
3

rash on her forearm and elbow resulting from falls she had suffered, he noted that Plaintiff was
"doing well" and that he would consider releasing her to return to work in August 2015. (PSF ¶¶
32–33, 35.) By the time she saw Dr. Fakhouri on August 22, Plaintiff exhibited full range of
motion in her right elbow, and the doctor recommended that she discontinue physical therapy
and avoid heavy lifting and other difficult activities for two to three weeks. (DSF ¶ 25; PSF ¶
36.) By that point, he expected, she would be ready to return to light-duty work. (Id.) At her
next visit on September 5, however, Plaintiff complained about a new pain extending from her
neck to her right arm, as well as swelling of her right elbow. (PSF ¶ 37.)

Dr. Fakhouri's

examination revealed cervical spine tenderness and a positive Spurling test. 3 (Id.) An X-ray
that day revealed degenerative joint disease in Plaintiff's cervical spine. (Id.) Dr. Fakhouri also
posited that the swelling in her right elbow may be caused by tendonitis. (Id.) He administered
a cortisone injection and also prescribed a corticosteroid for inflammation, an anti-convulsant,
and an opioid analgesic for pain. (Id.)
One week later, Plaintiff underwent a neck MRI exam that revealed cervical spinal
stenosis, 4 most marked at the C6-7 level of her spine. She also exhibited moderate neural
foraminal stenosis 5 at several levels. (DSF ¶ 26; PSF ¶ 38.) Dr. Fakhouri met with Plaintiff
again on September 19. (PSF ¶ 39.) She reported minimal improvement in her symptoms and
added that she had experienced significant pain from trying to type at home. (Id.) Dr. Fakhouri

3

A Spurling test is a method for evaluating cervical nerve root impingement.
During the test, the patient extends her neck and rotates, bending her head toward the
symptomatic side while examiner presses down on the top of her head. The test is considered
positive when the maneuver elicits arm pain down the arm of the symptomatic side. See
Spurling Test, mediLexicon, http://www.medilexicon.com/medicaldictionary.php?t=90833 (last
visited Aug. 31, 2016).
4

Cervical spinal stenosis is the narrowing of the open spaces within the cervical
spine, which can put pressure on the spinal cord and nerves that travel through the spine to the
extremities. (PSF ¶ 38 n.13.)
5

Neural foramina are the openings in the spinal canal which transmit nerves to the
rest of the body. Spinal stenosis can be caused by narrowed spinal canal or narrowed neural
foramina. (Id. n.14.)
4

referred her for epidural steroid injections and advised her to follow up with a spine surgeon if
her symptoms persisted for another four weeks. (Id.) In the meantime, he recommended that
she remain off work. (Id.)
III.

Defendant's Denial of Plaintiff's Long-Term Disability Benefits
Defendant approved Plaintiff's initial claim for short-term disability benefits through April

15, 2013, which would be approximately two months after Plaintiff's first surgery. (DFS ¶ 13.)
On March 22, while recovering from her first surgery but before her second surgery, Plaintiff
completed an application for long-term disability benefits. That claim was approved on April 8,
effective April 14, 2013. (DFS ¶¶ 14, 16.) In administering benefit plans, Defendant employs
nurses to act as "medical consultants" and conduct reviews of beneficiaries' claims. One of
those nurses, Nurse Laura Doble, conducted a review of Plaintiff's claim on July 15, 2013 and
noted that Plaintiff had had surgery on her left arm that February and on her right arm that May.
(DSF ¶ 23.) Doble observed that the usual recovery time for Plaintiff's surgery was six weeks
according to the Medical Disability Advisor, and that that guideline would support restrictions
and limitations on Plaintiff's work through July 1, 2013. (Id.) Another of those nurses, Nurse
Jeanette Stehly, had also noted that six weeks is the usual post-surgery recover period for the
type of surgery Plaintiff had and the type of work to which she would be returning. (DSF ¶ 16;
PSF ¶ 34.)
On several occasions in August and September, Defendant requested additional
medical information from Plaintiff, including an updated attending physician statement ("APS")
and a capabilities and limitations worksheet ("CLW").

(DSF ¶ 24.)

Having receveid no

response from Plaintiff, on October 3 Defendant sent a follow-up letter requesting the additional
information. Plaintiff did provide some additional medical information on October 3 but did not
include an updated APS or CLW.

Earlier, on September 17, Nurse Doble had reviewed

Plaintiff's medical records and determined that she did not have any restrictions or limitations
past the date of July 1, 2013 that would preclude her from using her upper extremities to
5

perform her work activities and lift up to ten pounds. (DSF ¶ 27.) Plaintiff notes that at the time
Nurse Doble conducted this review, she did not have access to Plaintiff's September 12 MRI
results or to Dr. Fakhouri's most recent treatment notes. (Pl.'s Resp. to DSF ¶ 27.) Plaintiff also
points out that Nurse Doble's determination that Plaintiff had no limitations on her activity is
contradicted by her physical therapy records from July and August 2013, which show reduced
range of motion, swelling, diminished sensation to light touch, and pain. (Id.)
Nurse Doble performed another medical review on October 8, noting that Dr. Fakhouri
had not imposed any restrictions or limitations on Plaintiff's ability to work even though he had
opined that she could not yet return to work; that Plaintiff was well past the usual post-surgery
recovery time; and that there was no objective medical evidence of any impairment precluding
Plaintiff from returning to work at any level. (DSF ¶ 32; PSF ¶ 40.) The next day, Dr. Fakhouri
completed an APS and CLW in which he stated that Plaintiff could not work due to chronic
bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and medial epicondylitis of
the elbows. (PSF ¶ 41.) He also noted that a portion of the CLW had been completed by
Plaintiff before he received the form. (Id.; DSF ¶ 34.)
That same day, October 17, 2013, Defendant notified Plaintiff by letter that her long-term
disability benefits had been terminated effective October 9. (DSF ¶ 33; PSF ¶ 42.) In its denial
letter, Defendant stated that Plaintiff had "remained out of work after surgery on both wrists and
elbows well beyond the Medical Disability Advisor Guidelines," and that "although your
physician indicates you cannot return to work, he has provided no restrictions and limitations."
(Id.) That same day, Nurse Stehly performed another medical review, concurring with Nurse
Doble's prior opinion because no exam findings were provided regarding range of motion,
strength testing, gait observation, grip strength testing, or new diagnostic information. (DSF ¶
35.) She also questioned the validity of the information contained in the CLW because it had
been provided by Plaintiff herself, not her doctor. (Id.)
On October 22, Defendant received consultation notes from Dr. Yaw N. Donkoh, who
6

had observed Plaintiff on October 11. (DSF ¶ 36.) Dr. Donkoh observed that Plaintiff "had good
range of motion of the C-spine in rotation and flexion and extension. Grip strength was 5/5 in
both upper extremities. Sensation was intact. Hoffman's 6 was negative bilaterally." (Id.) He
prescribed additional medication to address Plaintiff's pain and to improve her insomnia, and he
scheduled her for a cervical epidural spine injection and encouraged her to obtain an updated
EMG. (PSF ¶ 43.)

Defendant also received notes from Plaintiff's October 17 visit to Dr.

Fakhouri's office, at which he noted that Plaintiff continued to exhibit a positive Spurling test and
other symptoms "consistent with cervical radiculopathy." 7 (PSF ¶ 43–44; Pl.'s Claim File [36] at
798. Based on this updated information, Nurse Doble completed another medical review on
October 28, 2013, finding no medical evidence to suggest that Plaintiff had decreased strength
or sensation in her upper extremities and noting that Plaintiff's range of motion in her cervical
spine was good on exam. (DSF ¶ 37; PSF ¶ 45.)
Defendant again requested updated medical opinions regarding Plaintiff's functionality.
(DSF ¶ 38; PSF ¶ 46.) On November 13, 2013, Dr. Fakhouri responded, stating that Plaintiff
was not capable of working until her symptoms subsided and she regained further function of
the upper extremity, which he estimated would take at least four to six weeks. (DSF ¶ 38.) Dr.
Donkoh declined to provide a functional assessment and instead recommended that Plaintiff
undergo a "functional capacity exam with validation." (DSF ¶ 39; PSF ¶ 46.) Based on this
information, Nurse Doble conducted another review of Plaintiff's medical records and
determined that there was no objective medical evidence to support Plaintiff's claimed inability

6

The Hoffmann reflex test involves flicking the patient's middle fingernail to elicit flexion
of the thumb and the tips of the index finger or ring finger. The test is positive if the flexion
occurs, which indicates compression of the spinal cord. See generally Hoffman Sign: Red Flag
for Cervical Myelopathy, Orthopod,
http://eorthopod.com/news/hoffmann-sign-red-flag-forcervical-myelopathy/ (last visited Aug. 31, 2016).
7

Cervical radiculopathy involves nerve pain radiating from the neck down to the
shoulder, arm, forearm, and into the hand, and is associated numbness or weakness. See
generally Mark J. Spoonamore, Radiculopathy (Arm Pain), http://www.uscspine.com/conditions/
radiculopathy.cfm (last visited Aug. 31, 2016).
7

to return to work. (DSF ¶ 40.) On November 21, Defendant affirmed its decision to terminate
her long-term disability benefits and notified her of her right to file a written appeal. (DSF ¶ 41;
PSF ¶ 47.)
Plaintiff appealed Defendant's decision on December 17. (DSF ¶ 42; PSF ¶ 48.) She
submitted a statement from Dr. Fakhouri dated December 17, 2013 excusing her from work until
January 6, 2014 as "unable to work until symptoms subside and she regains further motion of
[her] right upper extremity." (DSF ¶ 43; PSF ¶ 49.) Dr. Fakhouri added that Plaintiff was
scheduled to undergo another epidural spine injection on December 20 and would be seen by
him in follow-up on December 31.

(PSF ¶ 49.)

Nurse Michael Grace performed another

medical review on December 24, 2013, as part of Plaintiff's administrative appeal review. (DSF
¶ 44.) He pointed out that Dr. Fakhouri's note did not contain any quantified physical exam
results confirming that Plaintiff had limited strength or range of motion; Nurse Grace concluded
that the note was not sufficient to establish a functional impairment. (Id.) On January 3, 2014,
Plaintiff sent Defendant a copy of the treatment note from her December 31 visit with Dr.
Fakhouri, which stated that she had pain in the medial aspect of her right elbow with positive
Tinel's sign, 8 a positive Spurling test, and tenderness in her lower cervical spine. (PSF ¶ 50.)
Dr. Fakhouri once again noted that he believed Plaintiff was suffering from cervical
radiculopathy and recommended that she see a pain specialist and neurosurgeon; he also
recommended another EMG study of her upper extremities and extended her off-work status
until further notice. (Id.) On January 8, Plaintiff underwent another EMG, the results of which
were again normal; she submitted this to Defendant, along with the January 14, 2014 treatment
note of Dr. Fakhouri, who reaffirmed her history of cervical radiculopathy, notwithstanding her
normal EMG results, and again recommended that she follow up with her pain specialist and
8

Tinel's sign is positive when lightly banging over a particular nerve elicits a
sensation of tingling in the distribution of the nerve. A positive sign indicates that the nerve is
irritated. See generally Definition of Tinel's sign, MedicineNet, http://www.medicinenet.
com/script/main/art.asp?articlekey=16687 (last visited Aug. 31, 2016.)
8

neurosurgeon. (DSF ¶ 45; PSF ¶ 51.)
On January 29, 2014, Plaintiff saw Dr. Leslie Schaffer, a neurosurgeon, who confirmed
that Plaintiff suffered from cervical radiculitis 9 and cervical disc disease supported by MRI
evidence, pain upon rotation and extension of her neck, and decreased grasp in her right hand.
(PSF ¶ 52.) Dr. Schaffer recommended physical therapy with no neck manipulation and reevaluation in four weeks; he also recommended that Plaintiff remain off work until that time.
(Id.) Plaintiff sent this treatment note to Defendant, along with an initial physical therapy note
dated February 10, 2014, which documented markedly reduced range of motion of Plaintiff's
cervical spine.

(PSF ¶ 53.)

Her cervical flexion, extension, and bilateral lateral flexion

measurements ranged from 10 to 20 degrees, and her left and right rotation measured 21
degrees and 31 degrees, respectively. (Id.) One of the stated goals of her physical therapy
was to increase those ranges of motion to be within normal limits under the American Academy
of Orthopaedic Surgeons (AAOS) standards. (Pl.'s Claim File at 741.) Plaintiff represents that
60 degrees is normal under those the AAOS; Defendant does not dispute this, but insists that
such evidence is beyond the administrative record. (Def.'s Resp. to PSF ¶ 53.) Plaintiff's
physical therapy note also stated that she exhibited diminished right grip strength of 40 pounds,
compared to 60 pounds on the left. (Id.) And on the Owestry Neck Index, 10 Plaintiff received a
score of 66 percent. (Id.) Plaintiff maintains that such a score signifies "severe disability"
according to the Neck Disability Index. (Id.) Defendant insists that such evidence, too, is
outside the scope of the administrative record. (Def.'s Resp. to PSF ¶ 53.)
On February 20, 2014, Defendant requested that MES Solutions, Inc. ("MES"), a
company that provides peer review reports for insurance companies, obtain a review of
9

The term "radiculitis" usually indicates pain, without the associated numbness or
weakness, shooting down the arm into the hand and fingers.
10

The Owestry Neck Index is patient-completed, condition-specific questionnaire
used to determine a patient's functional status as a result of his or her neck pain. The patient's
questionnaire is scored against a standardized scale. See generally Neck Disability Index,
Physiopedia, http://www.physio-pedia.com/Neck_Disability_Index (last visited Aug. 31, 2016.)
9

Plaintiff's medical records and clarify whether it was "reasonable that the [employee] would be
unable to perform her occupation for the period noted until at least the end of [physical therapy]
if surgical intervention is warranted?" (PSF ¶ 54.) One week later, while Defendant was waiting
for MES's report, Plaintiff furnished Defendant with the treatment note from her February 26,
2014 office visit with Dr. Schaffer, which said, "Off work till re-evaluated on 3-12-14. Pt. seeking
second opinion for surgery that is needed," along with a fax coversheet from Plaintiff, who
wrote, "I have to have surgery on my neck. I am getting a second opinion before surgery."
(PSF ¶ 55.)

Melissa Cooper, the appeals specialist assigned to Plaintiff's claim, failed to

forward those documents to Defendant's reviewing physician for inclusion in his review,
mistakenly believing that they were duplicative of previously submitted medical evidence. (Id.)
Dr. Naresh D. Sharma, a pain management specialist working for MES, completed an
independent physical review, as requested by Defendant, on March 3, 2014. (DSF ¶ 47; PSF ¶
56.) Dr. Sharma had attempted peer-to-peer consultants with Drs. Fakhouri and Schaffer, but
had not reached them successfully. (DSF ¶ 48; PSF ¶ 59.) Dr. Sharma opined that Plaintiff
was not functionally impaired or restricted during the period of October 9, 2013 to February 20,
2014, and that she was capable of performing work at any level of physical demand "from
sedentary to very heavy level for the above time period." (DSF ¶ 49; PSF ¶ 56.) He noted that
her medical records did not show any evidence of neurological deficit such as reflex, deep
tendon deficits, or motor weakness, and that her electro-diagnostic studies were within normal
limits. (DSF ¶ 49; PSF ¶ 57.) He also opined that Plaintiff's MRI findings dated September 12,
2013 were not consistent with her right upper extremity and neck symptoms; that Plaintiff's
provider's assessment of restrictions and limitations was based purely on Plaintiff's self-reported
symptoms and not objective medical evidence; and that Plaintiff had undergone appropriate
surgical interventions for carpal and cubital tunnel release. (DSF ¶ 49; PSF ¶ 58.) Dr. Sharma
concluded that Plaintiff was capable of performing a sedentary physical demand–level job.
(DSF ¶¶ 50–52.)
10

Defendant provided copies of Dr. Sharma's reports to Drs. Fakhouri and Schaffer on
March 5, 2014.

(DSF ¶ 53; PSF ¶ 60.)

Dr. Fakhouri did not respond, and Dr. Schaffer

responded only with a handwritten note stating, "We are not the doctor who did all her hand and
elbow surgeries. We just saw her 2 times 1/29/14 & 2/26/14. We did not keep her off work
since 2012 contact the proper MD." (DSF ¶ 54; PSF ¶ 60.) On March 14, Defendant notified
Plaintiff by letter that it had affirmed its decision to terminate her long-term disability benefits
effective October 9, 2013. (DSF ¶ 55; PSF ¶ 61.) On May 8, Plaintiff underwent an anterior
cervical discectomy and fusion surgery at the C6-7 level with Dr. Sergey Neckrysh, a
neurosurgeon. (PSF ¶ 62.) She filed this suit on June 23, 2014. (DSF ¶ 56; PSF ¶ 63.)
Defendant maintains that its decision to deny Plaintiff's claim for disability benefits was
supported by the lack of evidence in her record that she was too disabled to perform the duties
of her own occupation. Defendant thus urges the court to defer to Defendant's reasonable
exercise of its discretion in administering the plan. Plaintiff responds that the evidence in her
medical record clearly demonstrates that she was disabled and that Defendant's failure to
consider such evidence was unreasonable and warrants reversal of Defendant's decision. As
mentioned above, both parties have moved for summary judgment.
LEGAL ANALYSIS
Summary judgment is proper "if the movant shows 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).

When, as here, an ERISA plan explicitly gives the plan administrator discretion to

interpret the terms of the plan, our review of a denial of benefits asks only whether the plan
administrator's decision was arbitrary and capricious. Rabinak v. United Bhd. of Carpenters
Pension Fund, ___ F.3d ___, 2016 WL 4248377, at *2 (7th Cir. Aug. 10, 2016). "Review under
this deferential standard is not a rubber stamp, however . . . ." Holmstrom v. Metro. Life Ins.
Co., 615 F.3d 758, 766 (7th Cir. 2010). A court will "not uphold a termination when there is an
absence of reasoning in the record to support it." Hackett v. Xerox Corp. Long-Term Disability
11

Income Plan, 315 F.3d 771, 774–75 (7th Cir. 2003). That said, "[t]he arbitrary and capricious
standard is the least demanding form of judicial review of administrative action, and any
questions of judgment are left to the administrator of the plan." Trombetta v. Cragin Fed. Bank
for Sav. Employee Stock Ownership Plan, 102 F.3d 1435, 1438 (7th Cir. 1996) (citing Pokratz v.
Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir. 1985)).
Plaintiff argues that Defendant acted unreasonably by failing to adequately consider her
cervical radiculopathy diagnosis in denying her benefits. She asserts that instead of considering
Plaintiff's entire medical history, Defendant improperly relied on the Medical Disability Advisor
Guidelines to determine that Plaintiff had remained out of work for too long.

Such undue

reliance, she argues, constitutes arbitrary and capricious decision-making under Hawkins v.
First Union Corp. Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003). In Hawkins, the
Seventh Circuit determined that an ERISA plan administrator's denial of disability benefits was
unreasonable. 326 F.3d at 919. In denying the benefits claim, the administrator had relied on
the opinion of its medical consultant, but "the gravest problem" with that consultant's analysis
was his emphasis "on the difference between subjective and objective evidence of pain." Id. at
919.

The analysis was problematic because the severity of the claimant's fibromyalgia, in

particular the amount of pain and fatigue he felt, could not readily be established through
objective evidence. Id. Although the court conceded that the arbitrary-and-capricious standard
of review made the case a close one, the court concluded that "[t]he record contain[ed] nothing
more than scraps to offset the evidence presented by" the plaintiff and his own treating doctor.
Id.
Plaintiff also points to Cooper's failure to share with Dr. Sharma the notes from Dr.
Schaffer and Plaintiff, notes indicating that Plaintiff needed additional surgery. According to
Plaintiff, Cooper's failure to share such information, and Dr. Sharma's failure to consider it,
demonstrates that Defendant’s decision process was arbitrary and capricious. In Weske v.
Hartford Life and Accident Ins. Co., No. 13-3554(DSD/JJK), 2015 WL 627932 (D. Minn. Feb. 12,
12

2015), another district court ruled that a plan administrator's decision to terminate disability
benefits during the plaintiff's pre-surgery period was not supported by substantial evidence,
where the record included uncontradicted evidence that the plaintiff could not stand, walk, or
return to work during that period. Id. at *5. The court was troubled by the timing of he decision
to terminate benefits; that termination, occurring just before surgery, "evince[d] a desire to avoid
coverage for the post-surgery period." Id. at *6. Similarly, the district court in Vartanian v.
Metro. Life Ins. Co., No. 01 C 2674, 2002 WL 484852 (N.D. Ill. Mar. 29, 2002), could "determine
no reasonable or rational basis," apart from "a predisposition or inclination to terminate benefits"
why an insurer would not at least defer taking action until after the plaintiff's anticipated surgery
and rehabilitation had been completed. Id. at *10. Plaintiff contends that Defendant's failure to
acknowledge her cervical radiculopathy diagnosis and quick termination of benefits prior to her
surgery suggests a similar "hurried determination to terminate benefits based upon the thinnest
evidence" as a way to avoid liability for her post-surgery period. Id.
Defendant counters these arguments primarily with Dr. Sharma's analysis. Dr. Sharma
maintains that he took into account the views of Plaintiff's treating physicians, but ultimately
concluded that she was no longer disabled because the opinions of her physicians were not
supported by objective medical evidence showing functional restrictions or impairments. In
addition, Defendant points to the notes from Dr. Donkoh, who performed a physical examination
of Plaintiff and found "good range of motion of the C-spine," good grip strength, intact sensation,
and absence of Hoffman's reflex on October 11, 2013. (DFS ¶ 36.) And, though Plaintiff points
to medical literature noting that false-negative EMG results are relatively common, the fact
remains that her EMG results were normal in both October 2012 and January 2014. (Pl.'s Mem.
in Supp. of Summ. J. [62] at 10 n.2.)
It may be reasonable in some cases for an administrator to deny benefits based on a
lack of objective evidence indicating the degree to which the claimant's pain affects her
functional capacities. See Speciale v. Blue Cross and Blue Shield Ass'n, 538 F.3d 615, 624
13

(7th Cir. 2008); Williams v. Aetna Life Ins. Co., 509 F.3d 317, 323 (7th Cir. 2007) ("Because
Williams's functional limitations due to his fatigue could be objectively measured, the Plan did
not act arbitrarily and capriciously in denying Williams's initial application or appeal on the basis
that the record lacked accurate documentation in this regard."). There is also no requirement
under ERISA that plan administrators "accord special deference to the opinions of treating
physicians."

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003).

Nor are

administrators subject to a "heightened burden of explanation" when they reject the opinion of a
treating physician. Id.
This case, however, is different in important respects from the cases Defendant cites in
which the Seventh Circuit has upheld a denial of benefits based on a lack of objective evidence,
namely Speciale and Williams. In Speciale, for example, the claimant's own treating physicians
believed that she could work with some restrictions, thereby seriously undermining her claim of
total disability. See 538 F.3d at 621–22. And in Williams, the plan administrator had offered
reasons to believe that the assessment of claimant's treating physician was unreliable. For
example, the physician had marked sections of a questionnaire gauging the patient's functional
impairment as "unknown" and "untested," leading the administrator and the court to question the
accuracy of the physician's assessment.

See 509 F.3d at 323.

In this case, in contrast,

Plaintiff's treating physicians believed that her symptoms precluded her from working, and
Defendant has asserted no plausible ground for suspecting that their conclusions were the
product of faulty assessment methods.
Rather, this case more closely resembles Holmstrom, in which the Seventh Circuit ruled
that it was arbitrary and capricious for an administrator to rely on the opinions of record-review
doctors when every doctor who had examined the plaintiff had concluded, contrary to the
findings of those record-review doctors, that she was disabled. Holmstrom, 615 F.3d at 775.
Drs. Fakhouri and Schaffer concluded repeatedly and consistently over the course of regular
checkups that Plaintiff was not fit to work. Dr. Donkoh expressed no opinion on the subject. Dr.
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Sharma, to his credit, considered the opinions of Plaintiff's treating physicians; indeed, he tried
unsuccessfully to reach Drs. Fakhouri and Schaffer, and Defendant later sought responses from
the same doctors after Dr. Sharma published his report. But Dr. Sharma also included in his
report language that was, troublingly, at odds with the evidence presented to him. It was his
opinion that Plaintiff was capable of even "very heavy level" physically demanding work from
October 9, 2013 forward, a conclusion contradicted by the diagnoses and recommendations of
Drs. Fakhouri and Schaffer and seemingly without any clear factual support. (DSF ¶ 49; PSF ¶
56.) Dr. Sharma considered Plaintiff's MRI results to be explainable as consistent with the
normal aging process and speculated that they had been so caused, rather than crediting either
Dr. Schaffer's assessment that the MRI results were consistent with his cervical radiculopathy
diagnosis or Plaintiff's self-reported pain symptoms. In addition, it is not clear why the fact that
age was the cause of her condition would undermine her claim that the condition rendered her
disabled.
The opinions of Plaintiff's treating physicians were certainly based in part on her reported
pain, as Dr. Sharma articulated, but they also had support in objective medical evidence such
as Plaintiff's diminished grip strength in her right hand; Owestry Neck Index, MRI, and Spurling
test results; and conspicuously decreased cervical and bilateral lateral flexion. Thus, even with
the deference owed to Defendant in making this determination, the evidence in the record
suggests that Defendant acted unreasonably by rejecting the opinions of two of Plaintiff's
treating physicians in favor of Dr. Sharma's opinion. That opinion appears to have unduly
emphasized the lack of objective evidence of Plaintiff's disability, ignored strong evidence of her
subjective pain, and reached a conclusion about her ability to perform highly demanding work
without identified factual support. The court also notes that the financial relationship between
Aetna and Dr. Sharma, through MES, does suggest the possibility of a conflict of interest.
Plaintiff points out that Dr. Sharma's payments for reviewing Defendant's claims nearly doubled
during the relevant time—from $7,846.75 in 2013 to $13,900.75 in 2014—and that the amount
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Defendant paid MES also increased during that time. This fact, standing alone, would not
render Defendant's or Dr. Sharma's opinion unreasonable, but does suggest a possible
(unsatisfying) explanation for why Defendant would rely on Dr. Sharma's report despite some of
its flaws discussed above. Indeed, it is well-settled that "courts should be aware of structural
conflicts of interest in reviewing plan decisions for abuse of discretion." Raybourne v. Cigna Life
Ins. Co. of New York, 576 F.3d 444, 449 (7th Cir. 2009) (citing Metro. Life Ins. Co. v. Glenn, 554
U.S. 105, 109 (2008)). Although a it is just one factor among many to be weighed in the abuseof-discretion analysis, "structural conflict may not be ignored." Id.
In addition, while it appears that Dr. Sharma did not know that Plaintiff was awaiting yet
another surgery when he was preparing his report, Defendant did have notice of this fact.
Defendant's failure to consider at least postponing the termination of benefits for further inquiry
into that surgery is troubling. Ultimately, the reports of Plaintiff's treating physicians, which were
supported by objective measures, overwhelmingly favored a finding that Plaintiff was severely
impaired. The strongest contrary proof, her EMG results and Dr. Donkoh's report of positive
scores on some objective measures, is undercut by a convincing assortment of other medical
test results showing that Plaintiff had cervical radiculopathy, and by the possibility that the EMG
results were false negatives.

The EMG results, and the reports from Dr. Donkoh and Dr.

Sharmaose results, and Dr. Sharma's report, are "scraps" that slightly offset Plaintiff's evidence,
but do not suffice to cast as reasonable Defendant's decision to terminate Plaintiff's benefits.
Plaintiff is therefore entitled to summary judgment.
Plaintiff asks that the court order reinstatement of her benefits rather than "remanding"
the case to the plan administrator for reconsideration. The Seventh Circuit has held, however,
that this is only an appropriate remedy where the case for reinstatement of benefits is airtight or
virtually unimpeachable. See Love v. Nat'l City Corp. Welfare Benefits Plan, 574 F.3d 392, 398
(7th Cir. 2009) (explaining that when administrator has not adequately justified its decision to
deny benefits, remand is generally the proper remedy, and citing Gallo v. Amoco Corp., 102
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F.3d 918, 923 (7th Cir. 1996), and Quinn v. Blue Cross & Blue Shield Ass'n, 161 F.3d 472, 477
(7th Cir. 1998)). This court therefore remands Plaintiff's claim to Defendant for reconsideration.
If Defendant still concludes, after a thorough good-faith review of the medical evidence in
Plaintiff's case, that she is not entitled to long-term disability benefits, then "it must adequately
explain the reasons supporting its decision, including at a minimum an explanation of why it is
discounting the medical opinions of [Plaintiff's] treating physicians," Love, 574 F.3d at 398,
particularly because in this case some of those opinions were firmly rooted in objective medical
evidence.

Defendant should also explain its reliance on a report which contains factually

unsupported assertions, such as Dr. Sharma's statement that Plaintiff is capable of performing
even very physically demanding work.
CONCLUSION
For the foregoing reasons, the court grants Plaintiff's motion for summary judgment [52]
and denies Defendant's motion [48] for summary judgment.

Plaintiff’s claim is remanded for

further consideration.

ENTER:

Dated: September 6, 2016

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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