GARNER v. AETNA LIFE INSURANCE COMPANY

Filing 28

ENTRY - Plaintiff Kimberly Garner claims she has been unable to return to work at her job with Amazon since July 2016 due to difficulties with urinary incontinence. In the intervening months, Ms. Garner applied for long term disability benefits (& quot;LTD") through an insurance policy issued to Amazon employees by Defendant Aetna Life Insurance Company ("Aetna"). Aetna twice denied Ms. Garner's claim following reviews by a nurse and a urologist concluding that Ms. Garne r is not disabled. Ms. Garner then filed this lawsuit against Aetna under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq., seeking past benefits, future benefits, and attorney's fees. For the reasons set forth in this Order, the Court GRANTS IN PART Ms. Garner's Motion and DENIES Aetna's Motion. The Court agrees with Ms. Garner that Aetna's decision was not supported by substantial evidence, but concludes that remand to Aetna -- rather than an award of benefits -- is the proper remedy in this instance. Aetna's decision to deny Ms. Garner benefits is entitled to deference. But Aetna is not entitled to rely upon critically flawed clinical reviews as the ba sis for its decision. The Court finds Aetna's denial of benefits to be arbitrary and capricious and therefore GRANTS IN PART Ms. Garner's Motion for Summary Judgment, 19 , and DENIES Aetna's Motion for Summary Judgment, 18 . Reman d, rather than an award of benefits, is the appropriate remedy in this case to allow Aetna to address the procedural errors identified herein. Final judgment will issue accordingly. Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Cour t ORDERS that Ms. Garner file any petition for attorney's fees on or before March 23, 2018. The Court requests that the Magistrate Judge confer with the parties to discuss the possibility of a negotiated resolution as to the fee issue. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 2/20/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KIMBERLY GARNER,
Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
Defendant.

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No. 1:17-cv-01307-JMS-TAB

ENTRY
Plaintiff Kimberly Garner claims she has been unable to return to work at her job with
Amazon since July 2016 due to difficulties with urinary incontinence. In the intervening months,
Ms. Garner applied for long term disability benefits (“LTD”) through an insurance policy issued
to Amazon employees by Defendant Aetna Life Insurance Company (“Aetna”). Aetna twice
denied Ms. Garner’s claim following reviews by a nurse and a urologist concluding that Ms.
Garner is not disabled. Ms. Garner then filed this lawsuit against Aetna under the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq., seeking past benefits,
future benefits, and attorney’s fees.
Now pending before the Court are the parties’ Cross-Motions for Summary Judgment. Ms.
Garner’s Motion asserts that Aetna’s decision was arbitrary and capricious, and that she is entitled
to an award of benefits. [Filing No. 19.] Aetna’s Motion asserts that its decision was not
unreasonable, and seeks a judgment affirming its denial of benefits. Aetna also asserts that should
Ms. Garner prevail, a remand for reconsideration is appropriate, not a direct award of benefits.
[Filing No. 18.] For the reasons set forth below, the Court GRANTS IN PART Ms. Garner’s
Motion and DENIES Aetna’s Motion. The Court agrees with Ms. Garner that Aetna’s decision

was not supported by substantial evidence, but concludes that remand to Aetna—rather than an
award of benefits—is the proper remedy in this instance.
I.
LEGAL STANDARD
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes
clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support
the asserted fact by citing to particular parts of the record, including depositions, documents, or
affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d
892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable
factfinder could return a verdict for the party opposing summary judgment. Nelson v. Miller, 570
F.3d 868, 875 (7th Cir. 2009). When considering cross-motions for summary judgment, the Court
views the record in the light most favorable to the non-moving party as to each motion and draws
all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907
(7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.
56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that
they are not required to scour every inch of the record for evidence that is potentially relevant to
the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010).
“The existence of cross-motions for summary judgment does not, however, imply that
there are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int'l Union
of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different
burdens of proof with respect to particular facts; different legal theories will have an effect on
which facts are material; and the process of taking the facts in the light most favorable to the nonmovant, first for one side and then for the other, may highlight the point that neither side has
enough to prevail” on summary judgment. Id. at 648.

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II.
EVIDENTIARY ISSUES
Before turning to the merits of Ms. Garner’s case, the Court must address several
evidentiary challenges raised by Aetna in its response brief. [Filing No. 20 at 3-20.] Most of these
issues may be summarily addressed. The Court OVERRULES AS MOOT Aetna’s objections
pertaining to Ms. Garner’s wages. As set forth below, remand is required instead of reversal with
an award of benefits. Therefore, the Court does not need to consider these documents. The Court
OVERRULES each of Aetna’s objections pertaining to the absence of a citation. First, as Ms.
Garner explains, Local Rule 56-1 requires each party to “support each fact” with a citation to
admissible evidence, not each sentence. S.D. Ind. L.R. 56-1(e) (emphasis added). Aetna’s
objections to the contrary are unavailing. Second, Aetna’s objections to the absence of a citation
where Ms. Garner claims that there is an absence of evidence are nonsensical—the whole point of
her assertions is that the record does not establish a particular fact, meaning that no citation would
be possible.
The Court DENIES Aetna’s Motion to Strike Exhibit 1 to Ms. Garner’s summary judgment
brief. [Filing No. 25 at 18-19.] Exhibit 1, [Filing No. 20-1], is Ms. Garner’s claim file index and
is not evidence—it is simply an index designed to assist the Court. Cf. Fed. R. Evid. 1006. And
assist the Court it did; the voluminous 1850 page administrative record contains many medical and
administrative documents, including multiple duplicates, and Exhibit 1 provided a helpful roadmap
to speed the Court’s consideration of these documents. Moreover, Aetna had the opportunity to
correct any mistakes or misrepresentations it may have found in Ms. Garner’s index or to respond
with an index of its own. It did not do so. Aetna has provided no basis to strike Exhibit 1.
The Court GRANTS Aetna’s Motion to Strike Exhibit 2 to Ms. Garner’s summary
judgment brief. [Filing No. 25 at 18-20.] Though Ms. Garner has persuasively demonstrated that

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this is a proper circumstance for considering evidence outside of the administrative record, see,
e.g., Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 982
(7th Cir. 1999) (noting that documents outside the administrative record may be considered “to
investigate a claim that the plan’s administrator did not do what it said it did”), she has provided
no evidence to authenticate the exhibit, see, e.g., Szymankiewicz v. Doying, 187 Fed. App’x 618,
622 (7th Cir. 2006) (“To be admissible, documents must be authenticated by an affiant through
whom the exhibits could be admitted into evidence.”). The Court has not considered Ms. Garner’s
Exhibit 2, [Filing No. 20-2], in ruling on the parties’ Cross-Motions for Summary Judgment.1
All other objections not specifically addressed are OVERRULED. Consistent with the
summary judgment standard set forth above, the Court has considered the parties’ factual
assertions only to the extent they are supported by citations to the administrative record or
reasonable inferences that may be drawn therefrom.
Having resolved these preliminary issues, the Court now turns to the merits.
III.
BACKGROUND
The following factual background is set forth pursuant to the standards detailed above. The
facts stated are not necessarily objectively true, but as the summary judgment standard requires,
the undisputed facts and the disputed evidence are presented in the light most favorable to “the
party against whom the motion under consideration is made.” Premcor USA, Inc. v. American
Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

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Moreover, even if the Court had considered it, the additional evidence would not have affected
the Court’s analysis, as the facts sought to be proven by Exhibit 2 are cumulative of those reflected
in Ms. Garner’s letter to Aetna regarding Dr. Hale’s role in the disability process. See [Filing No.
17-4 at 55]; discussion infra Part II.H.
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A. The Long Term Disability Plan
In July 2012, Ms. Garner began working for Amazon as a “Fulfillment Center Associate
I.” [Filing No. 17-2 at 87.] As part of Amazon’s employee benefits, Aetna issued Ms. Garner an
LTD policy (the “Plan”). [Filing No. 17-1 at 1-78.] The Plan provides monthly payments to
insureds who are “disabled and unable to work because of [a]n illness [or] injury” when certain
conditions are met:
You will be considered disabled while covered under this Long Term Disability
(LTD) Plan on the first day that you are disabled as a direct result of a significant
change in your physical or mental condition and you meet all of the following
requirements:
 You must be covered by this plan at the time you become disabled; and
 You must be under the regular care of a physician. You will be considered
under the care of a physician up to 31 days before you have been seen and
treated in person by a physician for the illness, injury or pregnancy- related
condition that caused the disability; and
 You must be disabled by the illness, injury, or disabling pregnancy-related
condition as determined by Aetna. (See the Test of Disability provision.). [sic]
[Filing No. 17-1 at 5 (emphasis in original).]
The Plan’s “Test of Disability” explains how Aetna evaluates disability claims:
From the date that you first become disabled and until monthly benefits are payable
for 24 months you will be deemed to meet the test of disability on any day that:
 You cannot perform the material duties of your own occupation solely
because of an illness, injury or disabling pregnancy-related condition; and
 Your work earnings are 80% or less of your adjusted predisability earnings.
After the first 24 months of your disability that Monthly Benefits are payable, you
meet the plan’s test of disability on any day you are unable to work at any
reasonable occupation solely because of an illness, injury or disabling
pregnancy-related condition.
[Filing No. 17-1 at 6 (emphasis in original).]
“Material duties” are responsibilities that “are normally required for the performance of
your own occupation; and cannot be reasonably omitted or modified. However, to be actively at
work in excess of 40 hours per week is not a material duty.” [Filing No. 17-1 at 26.] The insured’s

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“own occupation” is defined in terms of how a job is “normally performed in the national
economy,” without regard to how the insured actually performs the job. [Filing No. 17-1 at 27.]
Ms. Garner’s position with Amazon was classified as a “medium occupation,” which Aetna
defined by reference to the Dictionary of Occupational Titles:

[Filing No. 17-1 at 133.] Benefits are not payable until an insured is disabled for 180 days, which
waiting period is called the “elimination period.” [Filing No. 17-1 at 5; Filing No. 17-1 at 70.]
B. Treatment Records Considered in Aetna’s Initial Decision
Ms. Garner has had issues with urinary incontinence dating back to at least 2009. [E.g.,
Filing No. 17-4 at 9.] On July 25, 2016, Ms. Garner visited urogynecologist Dr. Sameena Rao for
surgery to treat her diagnosed conditions of “[u]terovaginal prolapse, ICS stage II, stress urinary
incontinence, intrinsic sphincter deficiency, [and] severe detrusor2 overactivity.” [Filing No. 176 at 145.] Dr. Rao performed a “Da Vinci assistant supracervical hysterectomy, bilateral salpingo-

The detrusor is the “muscle that surrounds the walls of bladder and helps to release urine.”
Urology Care Foundation, Overactive Bladder Patient Guide, http://www.urologyhealth
.org/overactive-bladder. Definitions of medical procedures supported by citations to Internet
sources have been, in most instances, provided by the parties without dispute and are intended only
to aid the reader in understanding Ms. Garner’s treatment. Court-provided definitions are
consistent with those provided by the parties.
2

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oophorectomy, sacrocolpopexy,3 Coaptite4 x [times] 3, transurethral injections and cystoscopy5.”
[Filing No. 17-6 at 145.] Dr. Rao observed during the cystoscopy that the “bladder was normal
with no defects, suture, mesh or other abnormalities within the bladder or urethra.” [Filing No.
17-6 at 146.] Aside from one attempt to return to employment at Amazon, discussed below, Ms.
Garner has not worked since her July 25, 2016 surgery.
On August 18, 2016, Dr. Rao again saw Ms. Garner. Dr. Rao noted that Ms. Garner was
“[d]oing well” post-surgery with regard to her “[i]ncomplete uterovaginal prolapse,” but
concluded that “intravesical Botox”6 would be an appropriate procedure to treat her continued
incontinence. [Filing No. 17-4 at 44.] Botox carries a 20 percent risk of a need for selfcatheterization due to difficulties with bladder emptying and is reserved for women for whom
other treatments have failed. [Filing No. 17-6 at 119; see also Filing No. 17-5 at 147 (discussing
“risk of postoperative urinary retention”).] Dr. Rao noted that testing showed a “diminished
bladder capacity” and that she continued to suffer from two types of incontinence (mixed

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A uterosacral colpopexy is frequently performed along with a hysterectomy to address pelvic
organ prolapse. Charles R. Rardin, et al., Uterosacral Colpopexy at the Time of Vaginal
Hysterectomy, J. Reprod. Med., May 2009, at 273, available at https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC2922954/pdf/nihms207270.pdf.
4

Coaptite is a urethral injection used to treat leakage caused by a weak urinary sphincter by bulking
up the urethral wall. U.S. Nat’l Library of Med., Urinary Incontinence – Injectable Implant,
MedlinePlus (Feb. 5, 2017), https://medlineplus.gov/ency/article/007373.htm.
A cystoscopy is a procedure that permits a doctor to examine the interior of a patient’s urethra
and bladder via a device inserted through the urethra. U.S. Dep’t of Health & Human Servs.,
Cystoscopy & Ureteroscopy, Nat’l Inst. of Diabetes & Digestive & Kidney Diseases (June 2015),
https://www.niddk.nih.gov/health-information/diagnostic-tests/cystoscopy-ureteroscopy.
5

Botox treatment involves the injection of botulinum toxin into the bladder to “cause[] relaxation
of the bladder muscle, helping with urgency and allowing the bladder to store more urine.” [Filing
No. 17-4 at 79.]
6

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incontinence): urge incontinence7 and stress incontinence.8 [Filing No. 17-4 at 43.] Ms. Garner
reported that the Vesicare and other medications that she had been prescribed before her operation
did not improve her symptoms. [Filing No. 17-4 at 43-44.] Dr. Rao discussed InterStim sacral
neuromodulation9 as another treatment option going forward. [Filing No. 17-4 at 44.]
On September 6, 2016, Dr. Rao performed a cystourethroscopy and intravesical injection
of 100 units of Botox “at 10 locations above the bladder trigone and then the sidewalls.” [Filing
17-7 at 53.]

Dr. Rao noted no “abnormalities” and stated that Ms. Garner “tolerated the

procedure(s) and anesthesia well without complication.” [Filing No. 17-7 at 53.]
On September 21, 2016, Ms. Garner saw Dr. Rao, and reported that the Botox did not
improve her incontinence.

[Filing No. 17-5 at 146.] Ms. Garner likewise reported “little

improvement” with Myrbetriq, which she had recently been prescribed. [Filing No. 17-5 at 146.]
Dr. Rao diagnosed Ms. Garner with “mixed incontinence, refractory overactive bladder, stress
incontinence and intrinsic sphincter deficiency” and discussed her diminished bladder capacity
and “worsening incontinence symptoms.” [Filing No. 17-5 at 147.] Dr. Rao again discussed the
possibility of InterStim sacral neuromodulation as a treatment option and discussed increasing
Botox injections to 200 units. [Filing No. 17-5 at 147.] Dr. Rao scheduled Ms. Garner for repeat

Urge incontinence occurs when urine leaks after one experiences a “strong, sudden need to
urinate” followed by a bladder spasm. This happens when the “bladder muscles squeeze, or
contract, at the wrong times.” U.S. Nat’l Library of Med., Urge Incontinence, MedlinePlus (Aug.
31, 2015), https://medlineplus.gov/ency/article/001270.htm.
7

Stress incontinence occurs when the “bladder leaks urine during physical activity or exertion,”
such as when one “cough[s], lift[s] something heavy, change[s] positions, or exercise[s].” U.S.
Nat’l Library of Med., Stress Urinary Incontinence, MedlinePlus (March 28, 2016),
https://medlineplus.gov/ency/article/000891.htm.
8

Sacral neuromodulation involves “implanting a nerve stimulator” to “directly stimulat[e] the
nerves that control . . . bladder function.” [Filing No. 17-4 at 79.]
9

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urodynamics testing the next day and for a follow-up to discuss further treatment options. [Filing
No. 17-5 at 147.]
On September 29, 2016, Ms. Garner saw Dr. Rao for a follow-up appointment after her
September 22 urodynamics testing. [Filing No. 17-4 at 14-16.] Dr. Rao noted that the testing
showed similar findings to earlier testing and diagnosed Ms. Garder with “severe detrusor
overactivity with small bladder capacity,” “stress urinary incontinence,” and “borderline intrinsic
sphincter deficiency.” [Filing No. 17-4 at 15-16.] Dr. Rao stated that “[Ms. Garner] did not
respond well to her first dose of Botox” and discussed performing additional injections with 200
units. [Filing No. 17-4 at 16.] Dr. Rao planned to schedule additional Coaptite injections to treat
the stress urinary incontinence and again discussed the possibility of InterStim sacral
neuromodulation in the future. [Filing No. 17-4 at 16.]
On October 10, 2016, Ms. Garner saw her primary care physician, Dr. Michael LaRosa.
Dr. LaRosa noted Ms. Garner’s history with “profound, incessant urinary incontinence.” [Filing
No. 17-5 at 135.] Dr. LaRosa noted the scheduled Botox surgery but observed that Ms. Garner
“may need further corrective surgery.” [Filing No. 17-5 at 138.]
On October 18, 2016, Dr. Rao injected Ms. Garner with 200 units of Botox and three
Coaptite injections, and performed a cystourethroscopy. [Filing No. 17-7 at 46.] Dr. Rao left in a
“14-French [gauge] Foley catheter . . . to bag drainage.” [Filing No. 17-7 at 46.] Dr. Rao noted
that Ms. Garner “tolerated the procedure(s) and anesthesia well without complication.” [Filing
No. 17-7 at 46.]
On October 21, 2016, three days after the procedure, Ms. Garner visited the emergency
room with bladder spasms and blood in her urine. [Filing No. 17-6 at 25; Filing No. 17-4 at 6.] A
CT scan revealed “a Foley catheter within a collapsed bladder. Multiple calcifications along the

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course of the urethra.” [Filing No. 17-6 at 76.] The treatment notes stated that the “[b]iggest issue
was some sediment catheter backup.” [Filing No. 17-6 at 29.] Ms. Garner was trained on how to
flush the catheter, given a home kit for flushing, and discharged. [Filing No. 17-6 at 29.]
In November 2016, Ms. Garner attempted to return to work, but was unable to perform her
job duties due to her incontinence. [Filing No. 17-10 at 28-29.] In a subsequent correspondence
with Aetna, Ms. Garner described her attempt to return to work:

[Filing No. 17-4 at 71.] On November 17, 2016, Dr. Michael LaRosa, Ms. Garner’s primary care
physician, placed Ms. Garner off work. [Filing No. 17-10 at 28-29.] On November 18, 2016, Dr.
LaRosa stated that he would “keep her off work until February, but she may need more time.”
[Filing No. 17-5 at 128.] Dr. LaRosa stated that Ms. Garner “remains unable to walk, cough,
sneeze, bend over, etc, without profound urinary incontinence and pelvic pain. She tried to go
back to work, but couldn’t tolerate it.” [Filing No. 17-5 at 128.]
On December 1, 2016, Ms. Garner returned to Dr. Rao complaining of significantly
worsening symptoms:

[Filing No. 17-4 at 36.] Dr. Rao noted that the surgery did not yield abnormal findings, the
cystoscopies were normal, and urodynamic testing produced results “consistent with her
preoperative urodynamics.” [Filing No. 17-4 at 38.] Dr. Rao also noted that Ms. Garner’s
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overactive bladder did not improve following the 100 and 200 unit injections of intravesical Botox
and that her stress incontinence and borderline intrinsic sphincter deficiency did not improve
following transurethral coaptite injections. [Filing No. 17-4 at 38.] Dr. Rao reiterated that Ms.
Garner “may be a candidate for interstim.” [Filing No. 17-4 at 38.] Dr. Rao referred Ms. Garner
to Dr. Kathryn Copeland, a urogynecologist and partner of Dr. Rao’s, for a further opinion. [Filing
No. 17-4 at 38.] Ms. Garner did not return to Dr. Rao after her December 1 appointment.
On December 6, 2016, Ms. Garner saw Dr. LaRosa for a checkup. [Filing No. 17-5 at
123.] Dr. LaRosa noted that Ms. Garner “continues to struggle, very small bladder, worsened
urinary incontinence and bladder spasms. Frustrated with her urologist . . . still unable to walk
without incontinence, etc.” [Filing No. 17-5 at 123.] Dr. LaRosa “believe[d Ms. Garner] needs a
3rd opinion, URO/GYN, ongoing pelvic pain and severe incontinence after recent pelvic surgery.”
[Filing No. 17-5 at 123.] Dr. LaRosa stated: “No work scheduled before 2-1-17, but this will need
re-eval.” [Filing No. 17-5 at 123.]
On December 8, 2016, Ms. Garner visited Dr. Copeland for another opinion on her
conditions. [Filing No. 17-4 at 9.] Dr. Copeland’s notes state that Ms. Garner was “very angry”
about her condition post-prolapse surgery and “described in detail [h]ow embarrassing her leakage
of urine is.” [Filing No. 17-4 at 9.] Dr. Copeland believed that the prolapse surgery did not cause
Ms. Garner’s incontinence and that, “based on her chart[,] it looks like she has had significant
detrusor overactivity for years.” [Filing No. 17-4 at 10.] Dr. Copeland stated that Ms. Garner had
a “very severe form of detrusor overactivity/overactive bladder that will be difficult to treat.”
[Filing No. 17-4 at 10.] Dr. Copeland discussed the possibility of InterStim treatment, though
stated that Ms. Garner was not interested in the procedure. [Filing No. 17-4 at 10.] Dr. Copeland

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recommended that Ms. Garner either return for further treatment or get a referral to another
urogynecologist. [Filing No. 17-4 at 12.] Ms. Garner did not return to Dr. Copeland.
Ms. Garner received a referral to urogynecologist Dr. Douglass Hale. On January 3, 2017,
Ms. Garner visited Dr. Hale complaining of worsening incontinence, as shown in Dr. Hale’s notes:

[Filing No. 17-10 at 91.] Dr. Hale next summarized Ms. Garner’s medical history, including the
discussions regarding InterStim treatment. [Filing No. 17-10 at 91.] Dr. Hale noted that Ms.
Garner showed improvement with Oxybutynin and increased her dosage. [Filing No. 17-40 at 95.]
Dr. Hale also prescribed estrogen cream to “treat urogenital atrophic skin changes” and advised
Ms. Garner to increase her fiber and water intake to counteract side effects from the Oxybutynin.
[Filing No. 17-10 at 95.]
On January 16, 2017, Ms. Garner saw Dr. Hale for urodynamic testing. [Filing No. 17-10
at 88.] Following testing, Dr. Hale noted “probable ISD [intrinsic sphincter disorder] (could not
fill to 300 to check again) with Valsalva10 voiding and trabeculation and irritation [of the bladder]
on cystoscopy.” [Filing No. 17-10 at 88.] Ms. Garner “ha[d] large leak with minimal Valsalva
that stopped immediately after Valsalva.” [Filing No. 17-10 at 89.] Ms. Garner was instructed to
return with a bladder log to “try and differentiate which type of leakage is happening more often.
We will review these and make our treatment decisions.” [Filing No. 17-10 at 89.]

The Valsalva maneuver involves closing the nostrils and mouth while “gently forc[ing] air into
the back of [the] nose,” as if one were blowing one’s nose. Mayo Clinic, Airplane Ear (Apr. 27,
2016),
https://www.mayoclinic.org/diseases-conditions/airplane-ear/diagnosis-treatment/drc20351707.
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C. Physician Opinions Considered in Aetna’s Initial Decision
Between August 9, 2016 and the date of Aetna’s initial decision dated January 24, 2017,
Dr. LaRosa submitted several attending physician and limitation worksheets reflecting his opinion
that Ms. Garner could not work. The first physician statement, dated August 9, 2016, stated that
Ms. Garner was unable to work due to “post-surgical complications” and contained a notation
stating “Hopefully Back By 10-25-16.” [Filing No. 17-9 at 134.]
Dr. LaRosa’s November 18, 2016 physician statement again stated that Ms. Garner was
totally impaired from working. [Filing No. 17-10 at 28-30.] Dr. LaRosa stated that Ms. Garner
would “need further surgery” and noted the following symptoms and findings:

[Filing No. 17-10 at 29.] Dr. LaRosa noted that Ms. Garner’s November 2016 attempt to return to
work “did not go well. Unable to stand/bend, etc.” [Filing No. 17-10 at 28.] In response to the
inquiry as to when Ms. Garner may reach “maximum medical improvement,” Dr. LaRosa wrote
“Unknown, perhaps 2-18-17.” [Filing No. 17-10 at 30.]
Dr. LaRosa’s December 12, 2016 physician statement again stated that Ms. Garner was
totally impaired from working due to “failed operation uro/Gyn Surgery.” [Filing No. 17-10 at
48.] Dr. LaRosa answered that Ms. Garner would “reach maximum medical improvement” by “31-17 – will need re-ev[aluation]” and noted that Ms Garner could “possibly” require permanent
work restrictions. [Filing No. 17-10 at 48.]

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On December 27, 2016, Dr. LaRosa completed a capabilities and limitations worksheet.
[Filing No. 17-7 at 8.] Dr. LaRosa opined that Ms. Garner was fully restricted in every functional
category except use of hands, with which she had 25 percent usage capacity. [Filing No. 17-7 at
8-9.] Dr. LaRosa stated as follows:

[Filing No. 17-7 at 9.]
Dr. LaRosa completed another physician statement on January 16, 2017, again opining that
Ms. Garner was unable to work. [Filing No. 17-6 at 20.] Dr. LaRosa made the following notations:

[Filing No. 17-6 at 20.] Dr. LaRosa wrote that it was “unknown” when Ms. Garner was “likely to
have a full recovery” and “expect[ed] to see some improvement in the patient’s ability to function”
by “Jan – 2018 – but will need re-eval[uation].” [Filing No. 17-6 at 20.]
Dr. Rao completed a capabilities and limitations worksheet on December 27, 2016. [Filing
No. 17-8 at 10-11.] Dr. Rao opined that Ms. Garner had no functional restrictions and could work
more than 40 hours per week. [Filing No. 17-8 at 10-11.]
D. Nurse Review & Aetna’s Initial Decision
On January 17, 2017, Aetna referred Ms. Garner’s claim to Holly Shepler, a registered
nurse, to complete an initial review. [Filing No. 17-3 at 2.] Aetna’s claim referral notes provided
as follows:
15

[Filing No. 17-3 at 5.]
Nurse Shepler completed her review on January 23, 2017. [Filing No. 17-3 at 11.] Nurse
Shepler reviewed medical records submitted by Ms. Garner, providing brief summaries of most of
the findings. [Filing No. 17-3 at 12-13.] Nurse Shepler provided longer summaries of records
from a December 1 visit with Dr. Rao and a December 9 visit with Dr. Copeland as follows:

[Filing No. 17-3 at 12.]
At the end of her review, Nurse Shepler concluded that Ms. Garner was not impaired.
[Filing No. 17-3 at 14.] Her conclusions were reflected in Aetna’s January 24, 2017 letter rejecting
Ms. Garner’s disability claim. [See Filing No. 17-1 at 133.] The letter first reiterated the various

16

Plan provisions governing Ms. Garner’s claim, set forth various documents that Aetna had asked
for as part of the review, and then stated as follows:

[Filing No. 17-1 at 132.] The letter then set forth its reasons for rejection as follows, paraphrasing
Nurse Shepler’s findings in the blocked-quoted paragraphs:

17

[Filing No. 17-1 at 133.]
E. Medical Treatment & Opinions Prior to Appeal
On January 30, 2017, Ms. Garner returned to Dr. Hale for a “preoperative consultation” for
“Stage 1 interstim” and fluoroscopic surgery. [Filing No. 17-10 at 83.] Dr. Hale noted that Ms.
Garner’s symptoms had not changed since her last visit and that “her bladder diaries reveal an
average of 10 leaks per day, an average of 15 voids per day, and average of 1 voids per night, and
an average voided volume of 80 cc.” [Filing No. 17-10 at 83.] Based upon her diaries, Dr. Hale
concluded that the overactive bladder was the most serious condition, and wrote: “We will proceed
with Interstim.” [Filing No. 17-10 at 86.] Dr. Hale gave the following assessment of Ms. Garner’s
incontinence:

[Filng No. 17-10 at 86.]
On January 31, 2018, Dr. LaRosa completed another physician statement and capabilities
and limitations worksheet, each opining that Ms. Garner was unable to work. [Filing No. 17-5 at
97-101.] Dr. LaRosa noted that Ms. Garner “[h]as failed all operative procedures and Botox
injections.” [Filing No. 17-5 at 97.] Dr. LaRosa also noted that Ms. Garner would “need upcoming
implantable neuro modulation” surgery. [Filing No. 17-5 at 98.] Dr. LaRosa stated that there
would be “no need” for vocational rehabilitation because “[s]urgery is [the] only treatment” and
that, in his opinion, Ms. Garner was motivated to return to work. [Filing No. 17-5 at 98.] Dr.
LaRosa concluded that Ms. Garner was fully restricted, had “surgery pending,” and would be
unable to return to work until March 4, 2017 at the earliest. [Filing No. 17-5 at 100-101.] Dr.

18

LaRosa stated that Ms. Garner would “need re-ev[aluation]” at that time and listed May 4, 2017
as a possible return date. [Filing No. 17-5 at 100.]
F. Nurse Follow-up Review
On January 27, 2017, Aetna referred Ms. Garner’s claim to Nurse Shepler for a second
review based upon several updated medical records. [Filing No. 17-3 at 32.] Nurse Shepler
completed her second review on February 2, 2017. In addition to earlier records, the review file
includes treament notes and worksheets from Dr. LaRosa dated January 31, 2017. [Filing No. 173 at 53.] Nurse Shepler sumarized Dr. LaRosa’s January 31 treatment notes as follows:

[Filing No. 17-3 at 53.] It appears that Nurse Shepler did not have access to Dr. Hale’s January
31, 2017 treatment notes. [See Filing No. 17-3 at 49-53.]
Nurse Shepler reaffirmed her previous conclusion that Ms. Garner was not disabled under
the Plan, explaining in part as follows:

[Filing No. 17-3 at 62.]

19

G. Appeal & Doctor Review
On January 31, 2017, Ms. Garner appealed the denial of her claim. [Filing No. 17-5 at 71.]
On February 24, 2017, Aetna retained Dr. Stuart Fine, urologist and associate clinical professor at
Medical College of Wisconsin, to complete a peer review of Ms. Garner’s treatment records.
[Filing No. 17-4 at 83-87.] Dr. Fine completed his review on March 6, 2017. [Filing No. 17-4 at
83-87.] The review began with the following “Claim Synopsis”:

[Filing No. 17-4 at 84.]
Following this synopsis is Dr. Fine’s summary of Ms. Garner’s records, stating: “All the
records were reviewed in their entirety. I will summarize those portions of the records received
that have relevance to the questions and timeframe identified for this review and within the scope
of my area of Urology specialty.” [Filing No. 17-4 at 84.] Dr. Fine first summarized Dr. Rao’s
treatment:

[Filing No. 17-4 at 84.]

20

[Filing No. 17-4 at 85.]
Dr. Fine next discussed Dr. Hale’s treatment:

[Filing No. 17-4 at 86.] Dr. Fine also reported that he conducted a “peer-to-peer consultation”
with Dr. Hale:

21

[Filing No. 17-4 at 86.]
Dr. Fine concluded that Ms. Garner “has a well-documented case of vesical hypertonia and
an unstable detrusor. This is a chronic condition and will not result in any significant long-term
morbidity.” [Filing No. 17-4 at 86.]
On March 13, 2017, Aetna denied Ms. Garner’s appeal. [Filing No. 17-2 at 4-5.] The
decision stated that “[w]e reviewed your entire claim file, including all medical records, attending
physician statements, and your appeal letter. We also had your file reviewed by an independent
peer physician who specializes in Urology.” [Filing No. 17-2 at 4.] Aetna then summarized Dr.
Fine’s review, paraphrasing from his analysis excerpted above. [Filing No. 17-2 at 4-5.] The
decision concluded: “Since there is no clinical evidence of a functional impairment that would
preclude you from performing the material duties of your own occupation, the decision to deny
benefits is upheld.” [Filing No. 17-2 at 5.]

22

H. Documents Submitted After Appeal
On March 15, 2017, Ms. Garner corresponded with Aetna expressing her disagreement
with Aetna’s decision. [Filing No. 17-4 at 55.]11 In particular, Ms. Garner challenged Dr. Fine’s
account of his conversation with Dr. Hale. [Filing No. 17-4 at 55.] Ms. Garner stated that she
spoke both with Dr. Hale’s office manager and with Dr. Hale and confirmed that Dr. Hale does
not “do disability at that office. . . . [Dr. Hale] doesn’t like to deal with disability and acknowledged
that since Dr. LaRosa (my primary) started my disability he should continue.” [Filing No. 17-4 at
55.]
On April 7, 2017, Ms. Garner saw Dr. LaRosa complaining of a variety of issues. [Filing
No. 17-3 at 136.] Dr. LaRosa noted the following:

Aetna argues that the Court should not consider Ms. Garner’s correspondence submitted after
Aetna’s appeal decision, which was a “‘final decision’ and thus outside of the AR.” [Filing No.
25 at 17.] First, that statement is inaccurate: Ms. Garner’s correspondence is, in fact, a part of the
administrative record submitted by Aetna. Second, Aetna cites no authority for the proposition
that the Court may not consider record evidence submitted after the appeal, particularly where the
new evidence may undermine part of the administrator’s earlier decision. Undeveloped arguments
are waived. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016).
Finally, despite its citation to a letter stating that “no other action will be taken by Aetna,” [Filing
No. 17-2 at 6], Aetna did in fact take further action, requesting Dr. Fine’s May 2017 addendum,
which was also included in the administrative record. [Filing No. 17-3 at 131-35.] Aetna cannot
have it both ways, relying upon evidence it generated after appeal while asking the Court to ignore
evidence Ms. Garner submitted during the same time period.
11

23

[Filing No. 17-3 at 136.] Dr. LaRosa stated that Ms. Garner “can’t lift things without having
urinary accidents, and continues to have bladder spasms.” [Filing No. 17-3 at 137.]
On April 18, 2017, Ms. Garner saw Dr. LaRosa with similar complaints. [Filing No. 17-3
at 139.] Dr. LaRosa noted the following:

[Filing No. 17-3 at 139.] Dr. LaRosa sent his treatment notes from April 7 and April 18 to Aetna
on April 28, 2017. [Filing No. 17-3 at 135.]
I. Dr. Fine Addendum
On May 5, 2017, Dr. Fine issued an addendum at Aetna’s request. [Filing 17-3 at 131-35.]
Dr. Fine wrote as follows:

24

[Filing No. 17-3 at 132.] Dr. Fine reached the following conclusion based upon his review:

[Filing No. 17-3 at 133.] Thus, Dr. Fine reaffirmed his opinion that Ms. Garner’s claim should
be denied. [Filing No. 17-3 at 133.]
J. Procedural History
On April 25, 2017, Ms. Garner brought suit against Aetna, alleging that Aetna erroneously
denied her disability claim and seeking past benefits, future benefits, interest, and attorney’s fees.
[Filing No. 1.] On November 20, 2017, Aetna filed the administrative record in this matter, [Filing
No. 17], and both parties moved for summary judgment, [Filing No. 18; Filing No. 19]. The
parties’ Motions are now fully briefed and ripe for determination.
IV.
DISCUSSION
The Court first addresses Ms. Garner’s substantive arguments before addressing the issue
of remedy.
A. Reasonableness of Aetna’s Decision
Ms. Garner argues that Aetna unreasonably denied her benefits based upon omissions and
misstatements in Dr. Fine’s physician review. Specifically, Ms. Garner argues that Dr. Fine falsely
stated that no further surgical intervention was recommended, failed to fully review Dr. Hale’s

25

medical records, and arbitrarily rejected Dr. LaRosa’s opinions without any discussion.12 [Filing
No. 20 at 17-22.]
In its briefing, Aetna argues that it reasonably relied upon Nurse Shepler’s and Dr. Fine’s
reviews. [Filing No. 25 at 23-25.] Specifically, Aetna argues that Nurse Shepler reasonably
rejected Dr. LaRosa’s opinions and that Dr. Fine stated that he fully considered all relevant medical
records. Aetna argues that its decision was further supported by Dr. Rao’s and Dr. Hale’s opinions.
[Filing No. 25 at 25- 31.] Aetna argues that this evidence requires that its decision be affirmed
under the deferential standard of review. [Filing No. 21 at 20-30; Filing No. 25 at 22-25; Filing
No. 27 at 6-18.]
In her responsive briefing, Ms. Garner argues that Dr. Hale’s offices does not give
disability opinions, thus making Dr. Fine’s statement to the contrary inaccurate. [Filing No. 24 at
10.] Ms. Garner points to evidence in the record showing that Ms. Garner sent correspondence to
Aetna to that effect. [Filing No. 24 at 10.] Ms. Garner reiterates her arguments that Dr. Hale
falsely stated that no further surgery was recommended and dismissed Dr. LaRosa’s opinions
without explanation. [Filing No. 26 at 10-12.]
ERISA “sets minimum standards for voluntarily established health and pension plans in
private industry.” Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136, 1138 (7th Cir. 2017)
(citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008)). Where, as here, a plan grants the
administrator discretion in assessing a claimant’s eligibility for benefits and construing the terms
of the plan, the Court must review the administrator’s denial of benefits under a deferential

Ms. Garner additionally argues that Aetna’s initial denial failed to adequately advise Ms. Garner
of what additional information was required to perfect her claim. [Filing No. 20 at 23-24.] As
explained below, the Court ultimately agrees with Ms. Garner that Aetna’s denial was arbitrary
and capricious, and therefore declines to address this additional argument.
12

26

“arbitrary and capricious” standard. Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766 (7th
Cir. 2010) (citing Glenn, 554 U.S. at 111; Jenkins v. Price Waterhouse Long Term Disability Plan,
564 F.3d 856, 860-61 (7th Cir. 2009)). But this standard is “not a rubber stamp,” id., and does not
“requir[e] a plaintiff to show that only a person who had lost complete touch with reality would
have denied benefits,” id. at 766 n.5. Rather, courts review benefit denials for “procedural
regularity, substantive merit, and faithful execution of fiduciary duties,” id., reversing the
administrator’s decision where the “plan’s decision is unreasonable” in any of these areas,
Kennedy, 856 F.3d at 1138.13
Procedurally, this means that “specific reasons for denial [must] be communicated to the
claimant and . . . the claimant [must] be afforded an opportunity for full and fair review by the
administrator.” Tate v. Long Term Disability Plan for Salaried Emps. of Champion Int’l Corp.
No. 506, 545 F.3d 555, 559 (7th Cir. 2008) (internal quotation omitted), abrogated in part on other
grounds by Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010), and continued vitality
recognized by Holmstrom, 615 F.3d at 766 n.6. The administrator must “weigh the evidence for
and against, and within reasonable limits, the reasons for rejecting evidence must be articulated if
there is to be meaningful appellate review.” Halpin v. W.W. Granger, Inc., 962 F.2d 685, 695 (7th
Cir. 1992) (internal quotation omitted); Holmstrom, 615 F.3d at 777 (reversing determination
“based on selective readings” of the evidence); see Black & Decker Disability Plan v. Nord, 538

The Court’s analysis and conclusions would not be altered even if the Court were to use the
“downright unreasonable” phraseology preferred by Aetna and sometimes evoked by the Seventh
Circuit. Cf. Kennedy, 856 F.3d at 1138 (“[A] reviewing court will overturn a denial of benefits if
the plan’s decision is unreasonable.”); Holmstrom, 615 F.3d at 766 n.5 (noting that the court has
“sometimes described the arbitrary-and-capricious test as whether the administrator’s decision was
‘downright unreasonable’” and characterizing the phrase as “merely a shorthand expression for a
vast body of law” and not a requirement that a plaintiff “show that only a person who had lost
complete touch with reality would have denied benefits”).
13

27

U.S. 822, 834 (2003) (“Plan administrators, of course, may not arbitrarily refuse to credit a
claimant’s reliable evidence . . . .”); Tate, 545 F.3d at 559 (“We will not uphold a termination when
there is an absence of reasoning in the record to support it.” (internal quotation omitted)).
Substantively, the administrator’s conclusions must be supported by “substantial evidence.”
Holmstrom, 615 F.3d at 775. The decision to deny benefits cannot be upheld where it relies upon
“selective readings” of medical evidence that fail to account for “the entire picture” of the
claimant’s limitations. Id. at 777 (collecting cases and explaining that administrators may not base
denials upon “cherry-picked” and “selectively considered” evidence).
The Court first addresses Ms. Garner’s arguments regarding Aetna’s treatment of Dr.
Hale’s records and Dr. LaRosa’s opinions before addressing other issues raised by Aetna.
1. Dr. Hale
As set forth in great detail above, Aetna’s appeal denial recited that Aetna “reviewed your
entire claim file” and had Ms. Garner’s “file reviewed by an independent peer physician.” [Filing
No. 17-2 at 4.] The remainder of Aetna’s denial letter discusses the reasons given by Dr. Fine.
[See Filing No. 17-2 at 4-5.] Dr. Fine, in turn, placed great importance on Dr. Hale’s treatment
decisions, observing that Dr. Hale is an “extraordinarily well-qualified and well-trained
urogynecologist with vast experience” and “excellent qualifications.” [Filing No. 17-4 at 85.] Dr.
Fine then stated that “[t]here were no objective findings that required any further diagnostic
testing” and that the “results of this consultation [with Dr. Hale] indicated that no interventional
surgical procedures were recommended.” [Filing No. 17-4 at 85.] Finally, Dr. Fine discussed the
results of his “peer-to-peer consultation” with Dr. Hale wherein, according to Dr. Fine, he was
informed that Ms. Garner “is not in any way incapacitated by her symptoms, and has no disability
associated with her symptoms.” [Filing No. 17-4 at 86.]

28

Dr. Fine’s conclusions drawn from Dr. Hale’s treatment primarily rest on two grounds: 1)
that Dr. Hale did not think more surgery was needed, and 2) that Dr. Hale told Dr. Fine that Ms.
Garner was not disabled.
The first of these conclusions fails the substantive reasonableness test because it
completely lacks evidentiary support. Aetna does not meaningfully challenge Ms. Garner’s
argument on this point. As Dr. Hale’s January 30, 2017 “preoperative consultation” treatment
notes plainly state, [Filing No. 17-10 at 83]: “We will proceed with Interstim,” [Filing No. 17-10
at 86]. Indeed, Dr. Hale set forth a comprehensive contingency plan involving future surgical
intervention should Intersim not prove successful, first stating that more Botox would be in order
and then, “[i]f still no improvement, at that time a mid-urethral sling would be considered.” [Filing
No. 17-10 at 86.] Thus, Dr. Fine’s statement that “no interventional surgical procedures were
recommended” by Dr. Hale not only lacks the support of substantial evidence—it is absolutely
wrong.
As Ms. Garner points out, this substantively unreasonable conclusion evinces procedural
unreasonableness as well. Despite stating that he reviewed all relevant records “in their entirety,”
including medical records from Dr. Hale through January 31, 2017, Dr. Fine stated that Ms.
Garner’s “last visit with a urogynecologist, Dr. Douglas Hale,” occurred “on 01/03/2017.” [Filing
No. 17-4 at 85.] It appears that Dr. Fine failed to even consider Dr. Hale’s January 16 urodynamic
testing notes, which detailed a potentially significant “large leak with minimal Valsalva,” and
January 30 treatment notes, which detailed a plan of surgical intervention going forward. Dr.
Fine’s conclusion that Ms. Garner was not disabled based upon a lack of recommended surgical
intervention lacks both substantial evidence and procedural regularity.

29

Dr. Fine’s May 5, 2017 addendum does not alter the Court’s conclusion because it, too,
suffers from substantive errors. In his addendum, Dr. Fine states that “[a]pparently, there was a
suggestion that she may be a candidate . . . [for InterStim]. However, the urogynecologist who has
seen the claimant in the past were not particularly supportive of any aggressive intervention,
specifically the use of an InterStim device.” [Filing No. 17-3 at 132.] This characterization is
likewise riddled with factual inaccuracies. There was more than a “suggestion” that Ms. Garner
“may be a candidate” for InterStim—as Dr. Hale stated, “We will proceed with Interstim.” And
every urogynecologist to treat Ms. Garner brought up the possibility of InterStim, though electing
to first attempt more conservative treatments. This includes, but is not limited to, discussions held
at Ms. Garner’s 2016 visits with Dr. Rao on August 18, September 21 and 29, and December 1;
her December 8, 2016, visit with Dr. Copeland; and her preoperative consultation with Dr. Hale
on January 30, 2017, following which Dr. Hale planned to perform the Stage 1 InterStim operation.
Dr. Fine’s observations again lack evidentiary support.
The Court cannot write off Dr. Fine’s misstatements regarding InterStim treatment as
trivial or harmless. First, the fact that Ms. Garner’s specialists continued to discuss further surgical
intervention corroborates Dr. LaRosa’s observations and Ms. Garner’s statements that her
conditions were not improving. Ms. Garner has pointed to record evidence explaining that sacral
nerve stimulation (InterStim) “is a treatment only offered by some specialists to people with severe
and persistent symptoms which have failed to improve with other treatments.” [Filing No. 17-4 at
79 (emphasis added).] And Dr. Fine found it significant, both in his initial peer review and his
addendum, that procedures such as InterStim were not being seriously pursued. That conclusion
was inaccurate, undermining a critical basis of Dr. Fine’s—and Aetna’s—decision. Cf. Majeski v.
Metro. Life Ins. Co., 590 F.3d 478, 484 (7th Cir. 2009) (“[P]rocedural reasonableness is the

30

cornerstone of the arbitrary-and-capricious inquiry. . . . By ignoring [the plaintiff’s] key medical
evidence, [the defendant] can hardly be said to have afforded her an opportunity for full and fair
review . . . .”).
Second, Dr. Fine’s statements in his initial peer review regarding his conversation with Dr.
Hale present additional procedural problems. Aetna’s appeal denial letter specifically credited Dr.
Fine’s characterization of Dr. Hale’s comments that Ms. Garner was not disabled at all because of
her condition. But correspondence from Ms. Garner, included in the administrative record,
constitutes evidence that Dr. Hale’s comments were not as they seemed. [Filing No. 17-4 at 55.]
To the contrary, if Ms. Garner’s statements are credited (as they must be when considering Aetna’s
Motion for Summary Judgment), then Dr. Hale’s comments were not addressing Ms. Garner’s
conditions at all but instead someone with hypothetical conditions. Moreover, Ms. Garner has
given the Court further reason to doubt the accuracy of Dr. Fine’s initial peer review due to his
apparent failure to review Dr. Hale’s treatment notes from January 16 and January 30, both of
which suggested more aggressive treatment than did the initial January 3 consultation. Without
any explanation or acknowledgment of the issues raised by Ms. Garner, Aetna fully credited Dr.
Fine’s statements regarding Dr. Hale. This decision was procedurally unreasonable.
2. Dr. LaRosa
Turning, then, to Aetna’s consideration of Dr. LaRosa’s opinions, the Court again agrees
with Ms. Garner that Aetna’s decision was procedurally inadequate. Aetna is not obliged to give
any special weight to Dr. LaRosa as a treating physician. See Nord, 538 U.S. at 834. But Aetna
is obliged to provide some minimal articulation for rejecting a claimant’s favorable evidence. See
Halpin, 962 F.2d at 695.

31

Dr. LaRosa treated and evaluated Ms. Garner regularly and consistently described her
difficulties performing everyday tasks due to her incontinence. Dr. Fine’s initial peer review,
relied upon by Aetna in its denial decision, did not mention any of Dr. LaRosa’s treatment records
or medical opinions whatsoever. [See Filing No. 17-4 at 84-87.] Dr. Fine’s addendum provided
only the briefest discussion of Dr. LaRosa’s treatment: “I have reviewed records from Dr. Michael
S. Larosa, who is a physician in the Indianapolis area. I am not exactly sure if Dr. Larosa is an
internist as he is not identified as such.” [Filing No. 17-3 at 132.] This perfunctory statement
could not possibly suffice to allow for “meaningful appellate review.” Halpin, 962 F.2d at 695.
Nor is Dr. Fine’s treatment of Dr. LaRosa’s opinions saved by the earlier reviews rendered
by Aetna and Nurse Shepler. Based on Nurse Shepler’s initial review, Aetna wrote that Dr.
LaRosa’s restrictions “appear to be based on your subjective reports of symtpoms [sic], which is
insufficient medical evidence to support impairment.” [Filing No. 17-1 at 133.] In Nurse Shepler’s
follow-up review, she wrote that she was giving “greater weight” to the “[m]ultiple uro/gyn
specialists” who had provided “no ongoing restrictions” over the assessment of the “primary care
provider” because “they are the specialists for the condition.” [Filing No. 17-3 at 58.] (Presumably
by “multiple uro/gyn specialists” Nurse Shepler meant Dr. Rao, as she was the only
urogynecologist who had rendered any opinion as to whether Ms. Garner required restrictions as
a result of her conditions.)
First, Dr. LaRosa rendered further treatment and opinions after Aetna’s initial denial and
Nurse Shepler’s follow-up review that warrant attention in their own right, as they are consistent
with Dr. Hale’s assessment that Ms. Garner required InterStim—which, as noted above, is reserved
for patients with severe and persistent symptoms that go unremedied by more conservative
treatments. Second, although each of the bases suggested by Nurse Shepler (that Dr. LaRosa’s

32

opinion was based upon subjective complaints and that Dr. LaRosa is not a specialist) are not
without support, Dr. Fine neither referenced these bases nor provided one of his own. In fact, Dr.
Fine did not provide any reasoning at all for his wholesale rejection of Dr. LaRosa’s opinions.
Aside from the problematic discussion of Dr. Hale’s records, Dr. Fine did not even “credit reliable
evidence that conflicts with [the] treating physician’s evaluation” which perhaps could justify the
lack of a specific explanation. Nord, 538 U.S. at 834. Particularly given his shortcomings in
addressing Dr. Hale’s treatment records, the Court concludes that Aetna failed to give Ms. Garner
a full and fair review by relying upon Dr. Fine’s unreasoned rejection of Dr. LaRosa’s treatment
records.
3. Aetna’s Remaining Arguments
Finally, Aetna’s numerous citations to Dr. Rao’s limitations worksheet, [e.g., Filing No.
25 at 2], and to assorted evidence of “uncomplicated” surgeries or “normal” findings, [e.g., Filing
No. 25 at 26], do not alter the Court’s conclusion.14 Dr. Rao’s worksheet was completed on
December 27, 2016. [Filing No. 17-8 at 10-11.] While Aetna did not err in considering Dr. Rao’s
opinion, it cannot justify its denial based solely on that record given the near-unanimous treatment
records following that opinion that demonstrate that Ms. Garner’s conditions were worsening
instead of improving.15 Even more importantly, Dr. Fine did not mention or rely upon Dr. Rao’s
limitations worksheet in either his peer review or addendum.
Nor did Dr. Fine (or any other Aetna reviewer) rely upon the “uncomplicated” surgeries.
This is likely because such findings indicated only that the surgery went as expected—not, as
Aetna now seems to suggest, that they remedied Ms. Garner’s conditions. The same is true with

14

Nor do any other arguments raised by Aetna not specifically addressed herein.

15

Again, the exception is the purported Dr. Hale opinion that he conveyed to Dr. Fine as part of
his peer review.
33

the “normal” observations made in some medical opinions. As Aetna is keen to point out in its
briefing, “the issue is whether she met the terms of” the Plan, “not whether she complained of or
was diagnosed” with any particular medical condition. [Filing No. 25 at 1.] Whether a particular
examination produced a particular normal finding is beside the point, as recognized in part by the
fact that no Aetna reviewer relied upon such findings to justify the denial of benefits.
B. Appropriate Remedy
Having concluded that Aetna’s denial of benefits cannot stand, the Court must next
determine the appropriate remedy. Ms. Garner argues that she is entitled to an award of front and
back benefits. [Filing No. 20 at 25-26.] Aetna argues that remand is the appropriate remedy.
[Filing No. 25 at 34-35.]
The Court has discretion to decide whether an erroneous denial of benefits warrants remand
for further proceedings or an immediate award of benefits. Halpin, 962 F.2d at 697. Reversals
for failure to provide adequate reasoning generally warrant remand for “further findings or
explanations” except “where the record . . . contains such powerfully persuasive evidence that the
only determination the plan administrator could reasonably make is that the claimant is disabled.”
Majeski, 590 F.3d at 484.
The Court has found that Aetna’s decision is unreasonable based primarily upon
insufficient reasoning—specifically, Aetna’s reliance upon an inaccurate clinical review that
misstated and omitted critical evidence. Deviation from the ordinary remedy of remand is not
appropriate in this case, particularly because the parties’ dispute regarding Dr. Hale’s role in the
disability process requires additional findings. On remand, Aetna should clarify the nature of Dr.
Hale’s opinion regarding Ms. Garner (preferably in writing) and reach a fresh conclusion based
upon all of the evidence in the record.

34

V.
CONCLUSION
Aetna’s decision to deny Ms. Garner benefits is entitled to deference. But Aetna is not
entitled to rely upon critically flawed clinical reviews as the basis for its decision. The Court finds
Aetna’s denial of benefits to be arbitrary and capricious and therefore GRANTS IN PART Ms.
Garner’s Motion for Summary Judgment, [19], and DENIES Aetna’s Motion for Summary
Judgment, [18]. Remand, rather than an award of benefits, is the appropriate remedy in this case
to allow Aetna to address the procedural errors identified herein. Final judgment will issue
accordingly.
Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Court ORDERS that Ms.
Garner file any petition for attorney’s fees on or before March 23, 2018. The Court requests that
the Magistrate Judge confer with the parties to discuss the possibility of a negotiated resolution as
to the fee issue.

Date: 2/20/2018

Distribution via ECF only to all counsel of record

35