ASCHERMAN v. AETNA LIFE INSURANCE COMPANY et al
ORDER granting 55 Motion for Summary Judgment for deft AstraZeneca Retiree Health Plan; denying 57 Motion for Summary Judgment for the pltf; denying 60 Motion for an oral argument; granting 61 Motion for Summary Judgment as to defts Aetna Life, Lumbermans Mutual and AstraZeneca Long Term Disability. Signed by Judge Larry J. McKinney on 12/30/2011. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CAROL J. ASCHERMANN,
AETNA LIFE INSURANCE COMPANY, )
LUMBERMENS MUTUAL CASUALTY )
COMPANY, ASTRAZENECA LONG
TERM DISABILITY INSURANCE
PLAN, ASTRAZENECA RETIREE
HEALTH CARE PLAN,
Pending before the Court are the parties’ cross-motions for summary judgment:
Motion for Summary Judgment by Defendant AstraZeneca Retiree Health Care Plan
(“Medical Plan”) [Dkt. No. 55]; plaintiff’s, Carol Aschermann (“Plaintiff”), Motion for
Summary Judgment [Dkt. No. 57]; and Defendants’ Motion for Summary Judgment [Dkt.
No. 61] filed by defendants Aetna Life Insurance Company (“Aetna”), Lumbermens Mutual
Casualty Company (“Lumbermens”), and the AstraZeneca Long Term Disability Insurance
Plan (“Disability Plan”) (collectively, “Disability Defendants”). Plaintiff seeks recovery from
the Medical Plan for termination of medical coverage, and from the Disability Defendants
for termination of long term disability benefits, under the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. The Court has considered the
parties’ arguments and rules as follows.1
Contemporaneously with the cross-motions, Plaintiff filed a Request for Oral Argument [Dkt. No.
60]. The Court concludes that it has sufficient information to decide the cross-motions and, therefore,
DENIES the Request for Oral Argument [dkt. no. 60].
This case comes before the Court with an extensive claim file. See generally dkt.
nos. 65–70. All parties refer to pages in the claim file by Bates number. For ease of
discussion, all citations to the claim file in this Order will be designated as “R.” followed by
the Bates number for the page at issue.
From April 1997 until April 2003, Plaintiff was employed by AstraZeneca
Pharmaceuticals (“AstraZeneca”) as a Pharmaceutical Sales Representative. Dkt. No. 14
¶¶ 16, 17. During her period of employment, Plaintiff was a participant in two employee
benefit plans: the Medical Plan and the Disability Plan. Id. ¶ 5; dkt. no. 25 ¶ 5. The
Disability Plan is insured by Lumbermens, while Aetna serves as the Disability Plan’s third
Dkt. No. 14 ¶¶ 6, 8.
Aetna receives no payment from either
AstraZeneca or Lumbermens for administering the Disability Plan. Dkt. No. 58-2 ¶ 7.
A. RELEVANT PLAN LANGUAGE
The Disability Plan provides the administrator may terminate benefits on “[t]he date
[claimant] fail[s] to provide written proof of [the claimant’s] Disability that we determine to
be satisfactory.” R. 1184. The Disability Plan defines “disability” as follows:
Disabled/Disability means our determination that a significant change in
physical or mental condition due to:
Substance abuse; or
began on or after your Coverage Effective Date and prevents you from
performing, during the Benefit Qualifying Period and the following 24 months,
the Essential Functions of your Regular Occupation or of a Reasonable
Employment Option offered to you by the Employer, and as a result you are
unable to earn more than 80% of your Pre-disability Monthly Income . . . .
After that, you must be so prevented from performing the Essential Functions
of any Gainful Occupation that your training, education and experience would
allow you to perform.
R. 1181. The parties agree that Plaintiff’s claim falls outside of the twenty-four months
following the Benefit Qualifying Period (“‘own occupation’ period”) and in the so-called “any
occupation” period, which began for Plaintiff on October 27, 2005. R. 3.
The Medical Plan provides that:
Former employees who were disabled after January 1, 2001 and are
receiving disability payments from the AstraZeneca Long-Term Disability
Plan on account of their disability are also eligible to participate in the
[Medical] Plan until the earlier of age 65 or the date the disability benefit
R. 2535. The parties agree that Plaintiff is entitled to reinstatement under the Medical Plan
only if the Court concludes that the Disability Defendants improperly terminated Plaintiff’s
benefits under the Disability Plan. Dkt. No. 72 ¶ 3.
B. PLAINTIFF’S MEDICAL AND VOCATIONAL HISTORY
Plaintiff is a college graduate with a Bachelor of Science in Psychology and a
Masters in Social Work. R. 574. From 1990 to 1995, Plaintiff was a clinical social worker.
R. 628. Immediately prior to her employment at AstraZeneca, Plaintiff was a marketing
manager for a schizophrenia rehabilitation program. R. 575. In her employment with
AstraZeneca, Plaintiff’s job responsibilities included promoting AstraZeneca products in
doctor’s offices, conducting dinner presentations, attending meetings, and recording
information on her computer. Dkt. No. 14 ¶ 17. She was required to drive for long periods
of time and was responsible for meeting sales forecasts and budgets within her assigned
Pharmaceutical Sales Representative is classified as a “light”
occupation by the Dictionary of Occupational Titles (“DOT”), although the parties disagree
whether Plaintiff’s work with AstraZeneca fully corresponds with the DOT definition. R. 373,
2210. In particular, Plaintiff represented to her doctors and the claims administrator that
she was required to climb stairs, stoop, and complete other activities not specifically listed
in the DOT as part of her job. R. 373. When Plaintiff left AstraZeneca on April 28, 2003,
she was 36 years old. R. 571.
Plaintiff was diagnosed with spondylolisthesis2 at age 19, which progressed slowly
and resulted in severe lower back pain. R. 2227. She underwent “extensive nonoperative
treatment” in an attempt to relieve her back pain but was unable to achieve full pain relief.
R. 2217. By 2001, Plaintiff was experiencing significant back pain and right posterior
buttock pain with radiation into her posterior thigh. Id.
On October 4, 2001, Plaintiff had an MRI performed on her lumbar spine. R. 2218.
Plaintiff obtained an opinion from Dr. John Beghin, who recommended a decompression
and fusion at L5-S1. R. 2217. On December 31, 2001, Plaintiff was referred to Dr. Rick
Sasso (“Dr. Sasso”) at Indianapolis Neurosurgical Group for evaluation and a second
opinion on treatment. Id. In reviewing the October 2001 MRI, Dr. Sasso reported that
Plaintiff had a large disc herniation at L5-S1, advanced degeneration at L4-L5, and
spondylolisthesis at L5-S1. R. 2218. Dr. Sasso agreed with the previous opinion that a
lumbar decompression and fusion would be a reasonable course of treatment. Id.
“Spondylolisthesis” is defined as “[f]orward movement of the body of one of the lower lumbar
vertebrae on the vertebrae below it, or on the sacrum.” STEDMAN’S MEDICAL DICTIONARY 1812 (28th ed.
On February 11, 2002, Plaintiff returned to Dr. Sasso for continuing back and right
leg pain, reporting that her pain was “1000 times worse” than it had been in December
2001. R. 2219. Dr. Sasso and Plaintiff discussed potential surgical options, and Plaintiff
agreed to proceed with a Gill laminectomy3 at L5 and a discectomy4 at L5-S1 on the right
with instrumentation and fusion at L5-S1. Id.
On March 26, 2002, Dr. Sasso performed the lumbar fusion5 surgery. R. 2220.
During the surgery, Dr. Sasso found profound compression of the bilateral L5 nerves, as
well as significant disc herniation at L5-S1 and significant compression of the S1 nerve.
R. 2224. On March 29, 2002, three days after the surgery, Plaintiff was discharged, and
she continued to follow up with Dr. Sasso. R. 2222–24.
The surgery did not relieve Plaintiff’s low back pain. R. 2278–79. On July 26, 2002,
Plaintiff returned to AstraZeneca, but she was only able to work for approximately one
month with her severe pain. R. 2271. On September 4, 2002, Dr. Sasso reported that
Plaintiff had possibly developed pseudoarthrosis6 at L5-S1. R. 2280. The following day,
Plaintiff was approved for short term disability leave. R. 2271.
In December 2002, Dr. Sasso referred Plaintiff to Dr. Dmitry Arbuck (“Dr. Arbuck”)
at Meridian Health Group, Inc. for pain management treatment. R. 2227. Dr. Arbuck
“Laminectomy” is defined as “[e]xcusion of a vertebral lamina.” STEDMAN’S MEDICAL DICTIONARY
1046 (28th ed. 1995).
“Discectomy” is defined as “[e]xcusion, in part or whole, of an intervertebral disc.” STEDMAN’S
MEDICAL DICTIONARY 550 (28th ed. 1995).
“Lumbar fusion” is defined as “an operative procedure to accomplish bony ankylosis between
two or more vertebrae.” STEDMAN’S MEDICAL DICTIONARY 780 (28th ed. 1995).
“Pseudoarthosis” is defined as a “new, false joint arising at the site of an ununited fracture.”
STEDMAN’S MEDICAL DICTIONARY 1586, 1588 (28th ed. 1995).
recorded Plaintiff’s pain history as follows:
[S]tarted experiencing back pain at the age of 19. She was diagnosed with
spondylolisthesis, which progressed slowly up to the point of severe pain and
temporary disability. She had surgery in March 2002. It relieved her foot
pain, but not the back pain . . . Average pain is a 7 out of 10, up to a 9 out of
10 periodically. Prolonged sitting and standing as well as walking more than
15 minutes or so makes the pain incapacitating. Holding any position for any
length of time again makes it bad. Short sitting, rest in a supine position,
heat and cold and short walks make it better. Stretching helps significantly.
Massage helps. Lying down with her legs elevated is also helpful. The
majority of her pain is in the low back, with periodic pain in the interscapular
area. She has a history of epidural steroid injections, physical therapy and
chiropractic adjustment. At times, pain is “horrible,” most significantly
R. 2227. Dr. Arbuck developed a pain management plan for Plaintiff, including acupuncture
and facet blocks. R. 2228. He changed her prescription medications, adding Neurontin,
Zanaflex, and a Fentanyl patch. Id. He also started her on a home lumbar traction device.
Plaintiff began seeing Dr. Arbuck on a monthly basis for pain management. R.
2231–41. On January 6, 2003, Dr. Arbuck adjusted Plaintiff’s medications. R. 2231. On
January 20, 2003, Plaintiff again attempted to return to AstraZeneca. R. 2271. On March
6, 2003, Plaintiff reported an increase in back pain. R. 2234. Continued pain forced
Plaintiff to stop working on April 28, 2003. Id. She has not worked since that date.
In light of her continued pain despite pharmacological intervention, Dr. Arbuck
referred Plaintiff to Dr. Gary Wright (“Dr. Wright”), a pain management specialist and the
Medical Director of Meridian Health Group. R. 2244. On June 16, 2003, Dr. Wright
evaluated Plaintiff for diagnostic and therapeutic intervention. Id. Dr. Wright diagnosed
Plaintiff with sciatica,7 lumbar facet syndrome, failed surgical back syndrome, sacroiliitis,8
and lumbar segmental dysfunction. R. 2245. Dr. Wright recommended bilateral L2-3
through L5-S1 facet joint blocks and bilateral SIJ blocks. Id.
In the summer of 2003, Plaintiff underwent facet injections and prolotherapy.9 R.
She continued to see Dr. Arbuck regularly for medication management.
In June of 2003, Plaintiff had a functional capacity evaluation with physical therapist
This evaluation indicated that Plaintiff “is able to perform per job
description” but could only carry fifteen pounds one-handed. R. 372. In response to this
evaluation, Dr. Arbuck submitted a letter stating:
Even with accommodations for carrying 15 pounds or less, it is unlikely that
[Plaintiff] will be able to perform her job. Specifically, it will be impossible for
her presently, even carrying no weight, to climb the stairs and be involved in
frequent bending, stooping, twisting, and repetitive motions. With proper
rehab, [Plaintiff] still has a chance of improving her function enough to go
back to work, though a weight limitation likely will remain.
On September 23, 2003, Plaintiff applied for long term disability benefits under the
Disability Plan. R. 2213. As part of her application, Plaintiff provided an Attending
Physician Statement from Dr. Arbuck. R. 2215–16. Dr. Arbuck advised that Plaintiff had
“Sciatica” is defined as “[p]ain in the lower back and hip radiating down the back of the thigh into
the leg . . . known to usually be due to herniated lumbar disk compressing a nerve root, most commonly
the L5 or S1 root.” STEDMAN’S MEDICAL DICTIONARY 1731 (28th ed. 1995).
“Sacroiliitis” is defined as “[i]nflammation of the sacroiliac joint.” STEDMAN’S MEDICAL DICTIONARY
1714 (28th ed. 1995).
“Prolotherapy” is defined as the “[u]se of inflammation-inducing injections in periarticular soft
tissue intended to strengthen ligaments and tendons.” STEDMAN’S MEDICAL DICTIONARY 1573 (28th ed.
constant back pain that had increased since 2001. Id. He marked a box characterizing
Plaintiff as “marked limitation of functional capacity/capable of sedentary work” and
reported her prognosis as “questionable.” Id.
On November 10, 2003, Plaintiff’s claim for long term disability benefits was denied.
R. 2287–91. On January 22, 2004, Plaintiff appealed the denial of benefits, providing
additional statements from both treating and consulting physicians. R. 2292–300. Included
in these materials were two letters from Dr. Arbuck. In a letter dated November 21, 2003,
Dr. Arbuck stated, “[Plaintiff] is disabled presently from my standpoint and her pain is
marginally controlled. The medications add to her disability but must be provided due to
the intractable10 pain [Plaintiff] suffers otherwise.” R. 387. In a second letter dated
November 24, 2003, Dr. Arbuck stated, “[Plaintiff’s] pain is constant and increases with any
physical exertion. [Plaintiff] requires chronic ongoing pain management.” R. 389.
Plaintiff also provided a statement from Dr. Sasso. R. 399. Dr. Sasso stated that
Plaintiff has pseudoarthrosis at L5-S1. Id. A discography performed on January 2, 2004,
was positive with 10/10 concordant pain. Id. Dr. Sasso opined that Plaintiff’s present pain
rendered her “functionally incapacitated.” Id. In light of the additional documentation, on
May 4, 2004, Broadspire11 approved Plaintiff’s claim for long term disability benefits through
the appeals process, retroactively paying from October 26, 2003 and subsequent monthly
payments. R. 401–02.
On June 22, 2004, Plaintiff had a lumbar discography and a lumbar spine CT scan,
“Intractable” is defined as “resistant to treatment.” STEDMAN’S MEDICAL DICTIONARY 993, 1664.
Aetna purchased Broadspire Services, Inc.’s disability operations effective April 1, 2006. Dkt.
29 at 4. Aetna administers Lumbermens’ open disability claims as a result of this purchase. Id. The
parties agree that, while Broadspire made the decision as to Plaintiff’s long term disability claim in 2004,
Aetna made the 2009 decision at issue in this case.
which revealed a large posterior annular tear. R. 2158–61. A CT scan without contrast
revealed advanced disc degeneration at L4-5 status post posterior spinal fusion and
moderate left facet joint degeneration with facet joint widening at L4-5. R. 2163–64. On
June 30, 2004, orthopedic surgeon Dr. Terry Trammell (“Dr. Trammell”) reviewed the
discography and CT scans. R. 2158. Dr. Trammell recommended a second spine surgery
consisting of a L4-5 and L5-S1 anterior fusion followed by posterior reinstrumentation and
fusion. Id. With regard to Plaintiff’s prognosis from this surgery, Dr. Trammell stated:
Whether or not this [surgery] would give her significant pain relief is
indeterminate. I certainly would not expect her to get more than 50% relief
of her complaints of back pain. I would anticipate that she is going to have
back pain of chronicity, and whether or not we are able to lessen by this
surgical procedure is speculative.
On November 2, 2004, Dr. Trammell performed an L4-5 and L5-S1 lumbar fusion
and insertion of intervertebral prosthetic devices on Plaintiff. R. 423. This surgery was in
part meant to correct the non-union of the previous attempted posterior fusion by Dr.
Sasso. Id. at 437. Two days later, Dr. Trammell completed an Attending Physician
Statement advising that Plaintiff was to be off work. R. 2154.
On April 25, 2005, Plaintiff had a follow up appointment with Dr. Trammell. Plaintiff
reported that she was twenty percent better than she had been pre-operatively and had no
leg pain or paresthesias. R. 559. However, she still reported some back pain, although
she classified it as mild to moderate pain. Id.
On July 13, 2005, Dr. Arbuck provided a statement to Broadspire noting Plaintiff’s
diagnoses, including “recurrent major depression.” R. 568. He stated, “Her condition is
chronic and not relieved by surgery, injections, physical therapy or medications. Her pain
is chronic and intractable and prevents her from gainful employment in her occupation. Her
condition is not expected to improve unless new treatment options become available.” Id.
Plaintiff continued treatment with Dr. Arbuck throughout 2005 and 2006. R. 537–55,
591–622. After Aetna assumed administration of Plaintiff’s claim from Broadspire, on
September 28, 2006, Dr. Arbuck wrote Aetna a letter regarding Plaintiff’s condition:
. . . [Plaintiff] demonstrated resistant treatment course and intractable back
pain. Her pain and function are poorly controlled. . . .
She continues to exhibit significant sedation, fatigue, nausea, dizziness and
mental cloudiness due to the medications and functional impairment with
limitation in ability to move and be upright for sufficient periods of time. . . .
[S]he has difficulty even sitting for longer than 20 to 30 minutes at a time.
She needs to be in a reclined position for most of the day and any upright
posture, including sitting, exacerbates pain and causes increase in pain level
to uncontrollable degree.
[Plaintiff]’s illness is chronic in nature and not expected to improve until new
advances in surgical and instrumentation treatment are available. I will
continue to adjust her medications, but with little hope for good symptom
control, rather trying to minimize pain medication side effects.
R. 643–44. On November 13, 2006, Dr. Arbuck indicated in an Attending Physician
Statement that Plaintiff was unable to work. R. 652.
Throughout 2007 and 2008, Lumbermens continued paying Plaintiff’s long term
disability benefits. R. 12–20, 31. Benefits continued to be approved throughout that time
period, although Aetna contends that this approval was not on the basis that Plaintiff was
disabled under the Disability Plan. See dkt. no. 76 at 3. Instead, Aetna contends this
approval was allowed to continue while her disability status was investigated. Id.
Dr. Arbuck continued to treat Plaintiff for pain management. R. 660–69. On June
25, 2008, Dr. Arbuck completed an Attending Physician Statement opining that Plaintiff
could not work. R. 667.
In early 2009, Plaintiff provided Aetna with a Resource Questionnaire. R. 670–72.
Plaintiff reported that despite her treatments, including medications and two surgeries, she
continued to have daily pain. R. 672. On March 12, 2009, Dr. Arbuck completed another
Attending Physician Statement stating that Plaintiff has “No ability to work. Severe
limitation of functional capacity; incapable of minimal activity.” R. 683. Dr. Arbuck further
stated that Plaintiff’s estimated date of return to work was “undetermined.” Id. The claim
note from the same date addresses Plaintiff’s medication regimen, noting that she was
“tolerating well” and “nausea [is] controlled.” R. 687. Plaintiff continued treatment with Dr.
Arbuck throughout 2009. R. 685–94.
C. AETNA’S RECORD REVIEWS
At various times throughout its evaluation of Plaintiff’s claim for disability benefits,
Aetna and its predecessors consulted independent physicians and employability experts
for a peer review of Plaintiff’s file and evaluation of her disability status. These reviews
began during the “own occupation” period and continued through the “any occupation”
period. Although Plaintiff’s claim file was presented to the peer reviewing physicians for
review, none of the peer reviewing physicians directly examined or observed Plaintiff.
In mid 2003, an initial peer review of Plaintiff’s claim file was completed by Dr. Alan
Gruskin (“Dr. Gruskin”), a specialist in physical medicine and rehabilitation. See R. 263–65.
In his review, Dr. Gruskin noted that Plaintiff’s neurological examinations had been normal
and her orthopedic exams revealed only mild tenderness and pain at the low back with
extreme motion. Id. Dr. Gruskin opined that Plaintiff was not disabled from her own
occupation as a Pharmaceutical Sales Representative. Id. Dr. Gruskin’s peer review was
used in the November 2003 denial of Plaintiff’s benefits, but this denial was overturned
during the internal appeals process.
Following Plaintiff’s appeal of the November 2003 denial of benefits, two more peer
reviews were obtained from Dr. Ira Posner (“Dr. Posner”) and Dr. Sheldon Myerson (“Dr.
Myerson”). On May 3, 2004, Dr. Posner, a specialist in orthopedic surgery and pain
management, opined that Plaintiff was disabled from her own occupation based on “the
limitations in terms of her ability to sit or stand for any length of time as well as her
decreased ability to change positions, all of which would be required by a pharmaceutical
sales representative.” R. 268. However, he further opined, “She would be capable of
sedentary-type work activity as long as she was able to change positions as needed. Once
she has had additional surgery in the lumbar spine and achieved a stable fusion at L5-S1,
then she should be able to return to her occupational [sic] as a pharmaceutical sales
representative.” Id. Dr. Meyerson, a neurosurgeon, concurred that in May of 2004, Plaintiff
was disabled from her own occupation. R. 270–72.
In October of 2005, under the terms of the Disability Plan, Plaintiff’s claim became
subject to the “any occupation” standard. R. 3. Plaintiff’s claim file was given to Dr. Martin
G. Mendelsohn (“Dr. Mendelsohn”), an orthopedic surgeon. See R. 273–75. In a report
dated October 18, 2005, Dr. Mendelsohn opined that “a functional impairment that would
preclude the claimant from ‘any occupation’ cannot be substantiated” due to the lack of a
“comprehensive examination with objective clinical findings” and lack of documentation
from the pain management group. R. 275. Dr. Mendelsohn concluded that Plaintiff could
engage in work “of a sedentary or light physical exertion level with the ability to change
positions as needed.” Id. Dr. Mendelsohn’s report is not dated or signed, and the report
indicates that Dr. Mendelsohn received the referral from Aetna and dictated the report on
the same date. R. 273, 275. Although notes in the claim file raise a question as to whether
Aetna had Dr. Mendelsohn’s report in the claim file in August of 2009, see R. 65, Dr.
Mendelsohn’s report was in the claim file at the time of appeal.
Following Dr. Mendelsohn’s report, on May 5, 2006, the Disability Plan obtained an
Employability Assessment Report to determine whether there were available positions
within fifty miles of Plaintiff’s home consistent with Plaintiff’s education, experience, and
work restrictions that paid at least sixty percent of Plaintiff’s pre-disability monthly income.
R. 695–99. The report identified three positions—social welfare administrator, medical
social worker, and employee relations specialist—classified as sedentary and meeting the
requirements for location, pay, and skills possessed by Plaintiff. R. 698–99. The report
concluded that Plaintiff was employable based on a sedentary work classification. R. 699.
On November 22, 2006, Plaintiff’s claim file was reviewed by Dr. Lawrence
Blumberg (“Dr. Blumberg”), an orthopedic surgeon. R. 276–78. Like Dr. Mendelsohn’s
report, the notes in the claim file raise a question as to whether Aetna had Dr. Blumberg’s
report in the claim file in August of 2009, see R. 65, although Dr. Blumberg’s report was in
the claim file at the time of appeal. Dr. Blumberg concluded that Plaintiff’s was not disabled
under the “any occupation” standard, noting that “[t]here is no evidence that the claimant
cannot sit . . . [or] use her upper extremities.” R. 277. Dr. Blumberg suggested that Plaintiff
would be restricted from “lifting over 70 pounds on [a] repetitive basis.” Id. Although Dr.
Blumberg noted that Plaintiff takes Ambien to sleep, he concluded that the drug would not
affect Plaintiff’s ability to work. Id.
In early 2009, Plaintiff’s claim file was submitted to Dr. Anthony Riso (“Dr. Riso”), a
Board Certified specialist in anethesiology and pain management. See R. 279–82. In a
report dated January 20, 2009, Dr. Riso concluded that Plaintiff was not disabled under the
“any occupation” standard, although he noted that she would be restricted to sedentary
work. R. 281. Dr. Riso stated that during a peer-to-peer consultation, Dr. Arbuck “stated
that the claimant would be capable of performing sedentary work as long as she did not
have to lift, bend, stoop or squat.” R. 280. Specifically discussing potential adverse
medication effects, Dr. Riso further stated that “[n]o adverse medication effect is noted.”
On June 23, 2009, Aetna obtained a second Employability Assessment Report. R.
701–05. Rachel Lopez, the author of the report, spoke with Plaintiff and noted Plaintiff’s
statement that “sitting down too long causes problems for her . . . as does standing and
walking,” as well Plaintiff’s concern that “[s]he has issues with concentration, she believes,
due to the medication.” R. 702. Ms. Lopez concluded that Plaintiff had skills transferrable
to occupations such as public relations representative, provider relations representative,
and caseworker, all of which are sedentary occupations. R. 704. On July 1, 2009, Ms.
Lopez conducted a Labor Market Survery, concluding, “[t]o enter an occupation meeting
the physical and wage requirements and matching [Plaintiff’s] current abilities appears to
be feasible[.]” R. 711.
D. TERMINATION OF PLAINTIFF’S BENEFITS AND APPEAL
On August 31, 2009, an Aetna representative contacted Plaintiff and informed her
that her long term disability benefits were being terminated. R. 48. The representative
stated that the termination was due to the peer-to-peer phone conversation between Dr.
Riso and Dr. Arbuck, during which Dr. Arbuck allegedly stated that Plaintiff was capable of
sedentary work. R. 48, 178. Plaintiff was scheduled for an appointment with Dr. Arbuck
on September 1, 2009, and requested one day to speak with Dr. Arbuck and correct the
error before termination. R. 178. Aetna informed Plaintiff of the appeal process and
terminated her benefits. R. 48, 178.
Aetna provided written correspondence explaining its termination decision. R.
176–78. In that correspondence, Aetna reiterated its interpretation of the peer-to-peer
conversation with Dr. Arbuck, stating, “Dr. Arbuck stated that you would be capable of
performing sedentary work as long as you did not have to lift, bend, stoop or squat.” R.
177. There was no recording or written confirmation from Dr. Arbuck of the peer-to-peer
consultation. Id. Additionally, although Aetna listed a number of documents “included” in
its review of Plaintiff’s claim, that list did not include the most recent Attending Physician
Statements from Dr. Arbuck. R. 176–77. The letter stated that Plaintiff could provide
updated documentation for the appeal that “includes medical data such as: diagnostic test
results to support the diagnosis and claim for continued disability; and provides specific
functional abilities, including any and all restrictions and limitations.” Id.
On September 1, 2009, a human resources representative from AstraZeneca
contacted Aetna for an explanation as to termination of Plaintiff’s benefits. R. 48. Aetna
once again reiterated its stance that Dr. Arbuck approved of Plaintiff engaging in sedentary
work. Id. That same day, Dr. Arbuck wrote a letter to Aetna clarifying his position:
To clearly state my opinion, I think that [Plaintiff] cannot work productively in
any regular full time job environment, regardless of the nature of the job. She
cannot work for more than maximum four (4) hours a day, no more than half
an hour without a break. The only way she can function is if she has frequent
breaks with the ability to recline. She will never be able to regain her function
to work full-time and due to her present condition, I can with reasonable
medical certainty say that four (4) hours of daily sedentary work with frequent
breaks is the most she will be able to tolerate. I had a conversation with your
physician reviewer about nine (9) months ago, in January of 2009. I do not
remember the conversation clearly, but it seems that my statements were
interpreted as reflecting an opinion that [Plaintiff] can work FULL time.
Indeed the intended message is: [Plaintiff] can have PART time, no more
than 4 hours a day sedentary job allowing frequent breaks. She will never
be able to tolerate full time job of any sorts.
On September 3, 2009, Plaintiff appealed Aetna’s termination of benefits. R.
178–79. In conjunction with her appeal letter, Plaintiff provided Aetna with Dr. Arbuck’s
September 1, 2009 letter, as well as Attending Physician Statements dated March 12, 2009
and June 25, 2008. Id. On September 11, 2009, Aetna confirmed receipt of Plaintiff’s
appeal and advised that she would be notified within forty-five days of Aetna’s
determination. R. 180.
Plaintiff contacted Aetna a number of times inquiring about the status of her appeal.
See R. 50, 54, 62, 64, 68, 75. On October 5, 2009, following contact from Plaintiff, Aetna
informed Plaintiff that appeal would likely take longer than originally anticipated because
her claim file was missing the reports from Dr. Riso and Dr. Blumberg. R. 64. Plaintiff was
further informed that if she wished to submit additional information, “the entire review will
be restarted to include any new information that she sends.” Id.
On October 14, 2009, Plaintiff contacted Aetna regarding a statement in one of the
peer reports that “[n]o adverse medication side effect is noted.” R. 68, 281. Plaintiff
advised Aetna that she had nausea due to her medications, and Aetna told Plaintiff that she
could provide a statement to that effect, but any such statement would serve as an
“addendum” restarting the appeal process. R. 68. Plaintiff declined to provide the
statement. On October 16, 2009, Aetna sent Plaintiff a letter indicating that a forty-five day
extension of time was needed for the review of her appeal. R. 183.
Following Plaintiff’s appeal, Aetna requested two additional record reviews. On
October 23, 2009, Dr. Ephraim Brenman (“Dr. Brenman”), a specialist in physical medicine
and rehabilitation, submitted a report finding Plaintiff not to be disabled under the “any
occupation” standard. R. 283–91. Dr. Brenman stated, “The claimant has many subjective
complaints that are not substantiated in the record.” R. 291. Dr. Brenman contacted Dr.
Arbuck for a peer-to-peer consultation and noted:
[Dr. Arbuck] stated the patient would require a break for about a minute or
two every 30–60 minutes. He stated that the patient can work at home or do
computer work, but the patient can only work four hours a day, not eight
hours a day, due to the patient’s medical condition and medications.
R. 290. Pointing to the “lack of objective findings to support the claimant’s ongoing selfreported symptoms,” Dr. Brenman rejected the limitations outlined by Dr. Arbuck and
concluded that Plaintiff “is not restricted from any occupational capacity. She can engage
in physical activities such as sitting, standing, walking, reaching, lifting, carrying and
performing repetitive and fine motor hand motions without any physical restrictions and/or
limitations.” R. 290–91. Dr. Brenman also concluded that the claim file did not support
“any adverse medication effect that impacts the claimant’s work ability[.]” R. 291.
On November 11, 2009, Dr. Leonard Schnur (“Dr. Schnur”), a specialist in clinical
psychology, submitted a report addressing Plaintiff’s potential disability based on
psychological impairment. R. 293–99. Dr. Schnur noted that “Dr. Arbuck did reference the
presence of mild depression, anxiety, and irritability.” R. 298. However, he further noted
that “there were no specific measurements to document a functional impairment across
cognitive, emotional, and behavioral spheres.”
Dr. Schnur concluded that no
psychological impairment rendered Plaintiff disabled under the “any occupation” standard.
On December 1, 2009, Aetna notified Plaintiff that the appeal committee upheld the
original determination to terminate her disability benefits “due to a lack of medical and/or
psychological findings to support [her] inability to perform the essential functions of any
gainful employment.” R. 75, 162–63.
On December 4, 2009, Plaintiff contacted Aetna to discuss the appeal, and Aetna
returned her call four days later. R. 80. Plaintiff asked why the documentation that had
supported her claim since 2003 was no longer sufficient, and Aetna responded that “the
entire claim file was reviewed” during the appeal review. Id. Plaintiff requested all
documentation and notes related to her appeal, which Aetna provided. R. 150, 158.
Plaintiff contends that this was the first time Aetna provided her with copies of the peer
record reviews used to deny her claim, although Aetna denies that this is the case. Dkt.
No. 58 at 27; dkt. no. 76 at 4.
On March 18, 2010, after obtaining legal counsel, Plaintiff submitted to Aetna the
results of an Independent Medical Examination conducted by Dr. Daniel Brown (“Dr.
Brown”). R. 110–32. Dr. Brown concluded that Plaintiff “is permanently disabled from any
meaningful employment. . . . [She] would not pass a single physical test which I have
performed for any of the occupations which range from sedentary to physically strenuous.”
R. 112–13. Dr. Brown also questioned the opinions of Aetna’s record reviewing physicians.
R. 113–15. On April 8, 2010, Aetna confirmed receipt of Dr. Brown’s report but refused to
consider it, stating that Plaintiff already had exhausted her appeal. R. 106–07.
As a result of Plaintiff’s termination under the Disability Plan, the Medical Plan
terminated Plaintiff’s coverage on February 1, 2010. See dkt. no. 58 at 31; dkt. no. 76 at
6. Beginning that date, Plaintiff paid premiums under COBRA to continue her coverage
under the Medical Plan. Dkt. No. 72 ¶ 1. On July 31, 2011, Plaintiff’s COBRA coverage
The Court includes additional facts below as necessary.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers v.
City of Milwaukee, 916 F.2d 1261, 1267–68 (7th Cir. 1990).
Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in relevant
The court shall grant summary judgment 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.
Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials
showing that a material fact is genuinely disputed. FED. R. CIV. P. 56(c)(1). A genuine
dispute of material fact exists whenever “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating
that such a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d
992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of
evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying applicable evidence. See Bombard v. Ft. Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court should draw all reasonable
inferences from undisputed facts in favor of the nonmoving party and should view the
disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole
v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by
itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the
outcome of the suit in light of the substantive law will preclude summary judgment. See
Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273
(7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even
when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving
party does not have the ultimate burden of proof on a claim, it is sufficient for the moving
party to direct the court to the lack of evidence as to an element of that claim. See Green
v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails
to establish the existence of an element essential to [her] case, one on which [she] would
bear the burden of proof at trial, summary judgment must be granted to the moving party.”
Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
A. ADMISSIBILITY OF DR. BROWN’S REPORT
Before examining Aetna’s actions in terminating Plaintiff’s disability benefits, the
Court must address the admissibility of Dr. Brown’s report. See R. 110–32. The parties
agree that Dr. Brown’s report was provided to Aetna in March of 2010, after Aetna had
denied Plaintiff’s claim and the subsequent appeal. See R. 108–32. Aetna refused to
consider Dr. Brown’s report, stated that Plaintiff had exhausted her appeal procedures. R.
106–07. Plaintiff contends that Dr. Brown’s report should be considered by the Court
because it was provided to Aetna well in advance of litigation, giving Aetna ample time to
consider it. Dkt. No. 58 at 51–52. Aetna contends that because Dr. Brown’s report was
provided after Plaintiff exhausted its appeal procedure, and ERISA regulations require the
opportunity for only a single appeal of a denial of benefits, Aetna was not required to
consider Dr. Brown’s report, and the Court should disregard it as outside the claim file. Dkt.
No. 76 at 15.
Plaintiff has cited numerous cases in other jurisdictions finding that post-appeal
evidence may be considered by a reviewing court when it was provided to the plan
administrator with “a fair opportunity to consider it.” Dkt. No. 56 at 51–52 (collecting cases).
However, the Seventh Circuit has found that plan administrators are not required to reopen
closed appeals “simply so that the reviewing court has a more complete record[.]” Majeski
v. Metro. Life Ins. Co., 590 F.3d 478, 483 (7th Cir. 2009). Under arbitrary and capricious
review, the Court’s review is limited to the administrative record. Krolnik v. Prudential Ins.
Co. of Am., 570 F.3d 841, 843 (7th Cir. 2009). Therefore, because Dr. Brown’s report was
submitted after the administrative record was closed, Aetna was not required to consider
it, and the Court may not consider it in evaluating Aetna’s review of Plaintiff’s claim. Cf.
Majeski, 590 F.3d at 483.
B. TERMINATION OF DISABILITY BENEFITS12
In an Order dated November 12, 2010, the Court determined that Lumbermens
properly delegated discretionary authority to evaluate claims to Aetna in accordance with
the Disability Plan. See dkt. no. 40 at 6. Therefore, Aetna’s termination of Plaintiff’s
benefits is to be evaluated under the arbitrary and capricious standard of review. See id.;
see also Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860–61
(7th Cir. 2009). For ERISA purposes, “the arbitrary-and-capricious standard . . . is
synonymous with abuse of discretion.” Raybourne v. Cigna Life Ins. Co. of N.Y., 576 F.3d
444, 449 (7th Cir. 2009). Arbitrary and capricious review “turns on whether the plan
administrator communicated ‘specific reasons’ for its determination to the claimant, whether
the plan administrator afforded the claimant ‘an opportunity for full and fair review,’ and
‘whether there is an absence of reasoning to support the plan administrator’s
determination.’” Majeski, 590 F.3d at 484. Arbitrary and capricious review “is not a rubber
stamp,” and the Court “will not uphold a termination when there is an absence of reasoning
in the record to support it.” Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766 (7th Cir.
Plaintiff’s challenge of Aetna’s decision is limited to her back pain and related conditions, as
Plaintiff does not challenge Aetna’s decision that Plaintiff has no psychological impairment rendering her
disabled. Dkt. No. 58 at 33 n.12.
2010) (quoting Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771,
774–75 (7th Cir. 2003)). However, termination will be upheld when “(1) it is possible to
offer a reasoned explanation, based on the evidence, for a particular outcome, (2) the
decision is based on a reasonable explanation of the relevant plan documents, or (3) the
administrator has based its decision on a consideration of the relevant factors that
encompass the important aspects of the problem.” Sisto v. Ameritech Sickness & Accident
Disability Benefit Plan, 429 F.3d 698, 700 (7th Cir. 2005).
Plaintiff presents several arguments to the Court as to why Aetna’s decision should
be overturned. Specifically, she contends that Aetna operated under a conflict of interest,
ratified her right to receive benefits under the “any occupation” standard, and failed to
accord Dr. Arbuck’s opinion proper weight. The Court will address each argument in turn.
Plaintiff asserts that Aetna has a conflict of interest that encourages it to terminate
long term disability claims such as hers. Courts “will presume that a fiduciary is acting
neutrally unless a claimant shows by providing specific evidence of actual bias that there
is a significant conflict.” Mers v. Marriott Int’l Grp. Accidental Death & Dismemberment
Plan, 144 F.3d 1014, 1020 (7th Cir. 1998). In ERISA cases evaluating a plan’s disability
determination, conflicts of interest are “weighed as a factor in determining whether there
is an abuse of discretion.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008).
Typically, a conflict of interest arises when a plan administrator has both the discretionary
authority to determine eligibility for benefits and the obligation to pay benefits when due.
See, e.g., Jenkins, 564 F.3d at 861. However, in this case, it is undisputed that Aetna has
the discretionary authority to determine eligibility, while Lumbermens is responsible for
paying benefits. Compl. ¶¶ 6, 8; see also dkt. no. 58-2 ¶ 7. Therefore, this case does not
present a typical conflict of interest scenario.
Regardless, Plaintiff contends that a conflict of interest exists. Specifically, Plaintiff
asserts that Aetna operates under a conflict of interest because it receives no
compensation for administering Plaintiff’s claim while continuing to incur administration
expenses related to the claim. Dkt. No. 73 at 24 (citing dkt. no. 59 at 15). However, more
evidence than a “theory of an inherent conflict” is necessary for the Court to conclude that
a conflict of interest exists. Mers, 144 F.3d at 1020. Plaintiff has not presented any
evidence that Aetna treats the claims purchased under its agreement with
Lumbermens—including her claim—any differently than claims for which it receives
compensation. Although the Court recognizes the potential for conflicts of interest in
ERISA cases generally, the Court concludes that a conflict of interest is not present in this
Plaintiff argues that because Aetna approved her claim for benefits under the “any
occupation” standard on a number of previous occasions, it cannot now change its mind
without evidence of improvement in her condition. “[T]he previous payment of benefits is
just one ‘circumstance,’ i.e., factor, to be considered in the court’s review process; it does
not create a presumptive burden for the plan to overcome.” Leger v. Trib. Co. Long Term
Disability Benefit Plan, 557 F.3d 823, 832 (7th Cir. 2009). Proof of improvement in
condition is not necessarily required for the Disability Plan to change its mind as to
Plaintiff’s disability status. Holmstrom, 615 F.3d at 737. Accordingly, although Aetna’s
previous granting of benefits may be factored into the overall calculus, it does not
conclusively establish that Aetna’s termination of benefits was arbitrary and capricious.
Plaintiff’s contends that Aetna did not accord proper weight to the opinions of Dr.
Arbuck, her primary treating physician. Under ERISA, treating physicians’ opinions are not
entitled to more weight or deference than the opinions of physicians hired by the plan
administrator. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833–34 (2003).
While plan administrators may not “arbitrarily refuse to credit a claimant’s reliable evidence,
including the opinions of treating physicians,” id. at 834, departure from the treating
physicians’ opinions is permitted as long as a non-arbitrary explanation based on the
evidence is provided for the departure. Williams v. Aetna Life Ins. Co., 509 F.3d 317,
321–22 (7th Cir. 2007). In this case, Aetna’s record reviewing physicians repeatedly
departed from Dr. Arbuck’s opinions, both as to Plaintiff’s disability status and limitations
if she were to return to work. In 2003, Dr. Arbuck stated that Plaintiff was capable of
sedentary work. R. 2215–16. Following that, with the exception of the purported statement
to Dr. Riso, Dr. Arbuck has consistently opined that Plaintiff is disabled due to her back pain
and side effects from necessary medications. See, e.g., R. 387, 586, 643–44, 667, 683,
694, 2215–16. Dr. Arbuck has further stated that Plaintiff’s condition allows “no more than
4 hours a day [at a] sedentary job allowing frequent breaks.” R. 694.
However, the record reviewing physicians, while acknowledging Plaintiff’s complaints
of pain, are correct in noting that Dr. Arbuck’s records do not include any testing underlying
Dr. Arbuck’s conclusions. See R. 275, 277, 290–91. The Court notes that in cases where
the claimant’s disability is premised on subjective pain, the Seventh Circuit has “rejected
as arbitrary a . . . requirement that a claimant prove her condition with objective data
where no definitive objective test exists for the condition or its severity.” Diaz v. Prudential
Ins. Co. of Am., 499 F.3d 640, 646 (7th Cir. 2009). However, although pain itself may be
subjective and not subject to objective testing, there is no doubt that limitations on
functional capacity resulting from pain can be tested. See Holmstrom, 615 F.3d at 770
(citing Williams, 509 F.3d at 322). Dr. Arbuck provided no objective test results or
documentation for any limits to Plaintiff’s functional capacity, and the only functional
capacity assessment in the claim file suggests that Plaintiff is capable of sedentary work
with minor restrictions on carrying more than fifteen pounds. R. 372. Additionally, the
claim file includes evidence that Plaintiff was recovering well from her 2004 surgery and
that side effects from her medications were controlled. See R. 559, 687. In short, Aetna’s
divergence from Dr. Arbuck’s opinion as to Plaintiff’s disability status and limitations was
based on evidence in the record and, therefore, not arbitrary and capricious.
Reviewing all the evidence of Aetna’s processing of Plaintiff’s claim, the Court
concludes that Aetna did not act arbitrarily and capriciously in administering her claim. The
Disability Plan gives Aetna discretion to decide what proof is sufficient to document a
disability, see R. 1184, and Aetna informed Plaintiff of the documents needed to document
her disability, including test results for both the existence of a disability and functional
limitations caused by that disability. See R. 176–77; cf. Majeski, 590 F.3d at 484 (requiring
a plan administrator to communicate specific reasons for denial). Although the August
2009 termination was based on Dr. Riso’s purported conversation with Dr. Arbuck, which
Dr. Arbuck clarified was not intended to communicate an ability to engage in full time
employment of any kind, the appeal was based upon a review of the entire claim file. R.
80, 176–77, 694. Throughout the appeal process, Aetna gave Plaintiff a number of
opportunities to supplement the claim file with relevant documentation, and Plaintiff
repeatedly declined to do so. See, e.g., R. 64, 68. Aetna engaged multiple medical
experts to evaluate Plaintiff’s claim file under the “any occupation” standard, and four
different experts concluded based on reasonable evidence in the claim file that Plaintiff is
capable of sedentary work, rendering her not disabled under the Disability Plan. See R.
273–91. Under the deferential standard that must be applied in this case, the Court cannot
conclude that Aetna abused its discretion in relying on the reports of its record reviewing
physicians to terminate Plaintiff’s benefits. Therefore, the Disability Defendants are entitled
to summary judgment.
C. TERMINATION OF MEDICAL PLAN BENEFITS
The parties all agree that Plaintiff is entitled to reinstatement of coverage under the
Medical Plan only if the Court finds that the Disability Defendants arbitrarily and capriciously
terminated her benefits under the Disability Plan. See dkt. no. 72. Because the Court
concludes that Plaintiff was not arbitrarily and capriciously terminated from the Disability
Plan, she is not entitled to reinstatement under the Medical Plan or reimbursement for
COBRA coverage. The Medical Plan is entitled to summary judgment.
For the reasons set forth herein, the Court rules as follows:
Defendant AstraZeneca Retiree Health Plan’s Motion for Summary Judgment
[Dkt. No. 55] is GRANTED.
Plaintiff Carol Aschermann’s Motion for Summary Judgment [Dkt. No. 57] is
Defendants Aetna Life Insurance Company, Lumbermens Mutual Casualty
Company, and AstraZeneca Long Term Disability Insurance Plan’s Motion
for Summary Judgment [Dkt. No. 61] is GRANTED.
Plaintiff’s Request for Oral Argument [Dkt. No. 60] is DENIED.
Judgment shall issue accordingly.
IT IS SO ORDERED this 30th day of December, 2011.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
William Robert Brown
SCHUCKIT & ASSOCIATES, P.C.
Mathew D. Dudek
MECKLER BULGER TILSON MARICK & PEARSON LLP
123 N. Wacker Drive
Chicago, IL 60606
Eric P. Mathisen
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Bridget L. O'Ryan
O'RYAN LAW FIRM
MECKLER BULGER & TILSON LLP
Mark E. Schmidtke
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
Rachel S. Urquhart
MECKLER BULGER & TILSON LLP
Amanda Lynn Yonally
O'RYAN LAW FIRM
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