Keegan v. Metropolitan Life Insurance Company

Filing 36

MEMORANDUM OPINION & ORDER: 21 MOTION for Judgment by Allison Keegan GRANTED, 32 MOTION for Judgment by Metropolitan Life Insurance Company DENIED. MetLife may recover amt of overpayments to Keegan from LTD benefits owed to him. Signed by Judge Joseph M. Hood on 3/31/2014.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

ALLISON KEEGAN,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
METROPOLITAN LIFE
INSURANCE COMPANY,
Defendant.

Civil Case No.
12-cv-264-JMH

MEMORANDUM OPINION AND
ORDER

*****
Plaintiff

Allison

Keegan

(Keegan)

seeks

review

of

the

denial of benefits under a long-term disability (LTD) benefits
plan

(Plan)

by

Defendant

Metropolitan

Life

Insurance

(MetLife) pursuant to 29 U.S.C. § 1132(a)(1)(B).

Company

Keegan and

MetLife have filed motions for judgment1 [DE 22, 32] and this
matter has been fully briefed by the parties [DE 33, 35].

The

Court being sufficiently advised, this matter is now ripe for
review.
Keegan’s medical records demonstrate that he had several
health issues initially contributing to his disability under the
plan.

1

The initial period of disability was caused by his cancer

A “Motion for Judgment” is the proper procedural method for
relief in an appeal of the denial of benefits under ERISA. See
Wilkins v. Metro. Life Ins. Co., 150 F.3d 609, 619 (6th Cir.
1998).

diagnosis

and

subsequent

treatment,

during

which

it

was

not

possible for Keegan to continue to work at his position as a
senior engineer.
suffered

from

chemotherapy

Evidence in the record established that Keegan

new

cognitive

treatment.

deficiencies

After

the

resulting

remission

of

from

his

his

cancer,

Keegan’s psychiatric and cognitive symptoms remained, causing
the

continuation

of

his

disability

status.

His

treating

physicians generally agreed that his psychiatric symptoms, such
as anxiety, stress, and depression may have been exacerbating
his cognitive symptoms.

But the consensus among his treating

physicians was that Keegan’s cognitive impairments were caused
by the effects of his cancer treatment.
Plaintiff first argues that MetLife’s decision to deny his
claim was arbitrary and capricious because there was no evidence
showing that his condition had improved since the date he was
deemed disabled under the terms of the plan.
argues

that

new

evidence

of

his

medical

Additionally, he

condition,

received

after the determination and not reviewed by MetLife, may be
considered by this Court based on MetLife’s due process error.
MetLife defends its determination by relying on the lack of
recent

objective

testing

and

current

complaints

in

Keegan’s

record regarding his cognitive deficiencies.

MetLife points out

that

cognitive

Keegan

could

have

submitted
2

current

testing

during the appeal of the discontinuation of his benefits, but
did not.

Finally, both parties argue that they are entitled to

a recover amounts owed due to miscalculations of payments made
to Keegan during the time period in which he received benefits
under the Plan.
MetLife’s reasoning for the discontinuation of LTD benefits
was not based on a rational basis.

Evidence in the record does

not support the conclusion that Keegan’s cognitive impairments
had

improved

Accordingly,

to

the

point

that

for

the

following

he

was

reasons,

no

longer

Keegan’s

disabled.

motion

for

judgment will be granted, and MetLife’s motion for judgment will
be denied, although MetLife is entitled to recover the amount of
alleged overpayments from the LTD benefits owed to Keegan.
I. Factual Background
Keegan worked as a senior engineer for Samsung in Austin,
Texas, managing, installing, and maintaining high-end computer
systems.

[DE 14, ML 1375].

This was a demanding position that,

essentially, required Keegan to be “on call 24 hours/day,” and
sometimes required that he sleep at the office, if necessary,
while working on a project.

[DE 14, ML 144].

At the time of

his disability, Keegan’s base salary was approximately $96,000,
and his bonuses exceeded $10,000.

3

[DE 14, ML 1203; DE 22-2].

In February 2009, he was diagnosed with Stage IV mantle
cell

lymphoma

and

underwent

chemotherapy

treatment

at

The

University of Texas MD Anderson Cancer Center with Dr. Jorge
Romaguera, an oncologist, in Houston, Texas.
DE 14, ML 1285].

[DE 14, ML 1342;

Keegan was treated with eight cycles of high-

dose chemotherapy between February and August 2009.
346].
[DE

[DE 14, ML

Some of the treatment protocols used were experimental.

14,

ML

1238;

DE

14

ML

16—18].

Keegan

tolerated

the

treatment well at the time, but still suffered from weakness,
fatigue, nausea, fevers, infections, bone pain, and other side
effects.

[DE 14, ML 1238; DE 14 ML 16—18].

In addition to the more common physical repercussions from
chemotherapy, Keegan’s treatment had other effects on him.

He

moved to Houston during his treatment, meaning that his was
removed from his wife and teenage daughter.

[DE 14, ML 239].

Sometime after his diagnosis, he and his wife separated.

He

reported feelings of stress and anxiety during this time period,
as well as depression.

[DE 14, ML 239].

Before his cancer

diagnosis, Keegan had been diagnosed and intermittently treated
for

bipolar

disorder,

depression,

and

anxiety,

but

conditions had not previously interfered with his work.
ML

260].

These

conditions

were

chemotherapy treatment and after.
4

exacerbated

these
[DE 14,

during

his

He reported to at least one

of his treating physicians that he was frustrated and that his
“current inability to work [was] ‘beginning to gnaw’ at him.”
[DE 14, ML 239].
Additionally,

Keegan

started

noticing

changes

in

his

cognition during the second and third cycle of chemotherapy,
which “worsened as treatment progressed.” [DE 14, ML 239].
cognitive

changes

did

not

resolve

after

his

His

chemotherapy

treatments ended, as evidenced by subsequent objective testing
and his own subjective observations.

[DE 14, ML 239].

Keegan received the maximum amount of short-term disability
(STD) benefits.

[DE 14, ML 1375].

Once the term for STD

benefits expired, Keegan’s claim was transitioned to one for LTD
benefits.

[DE 14, ML 1205—07]. MetLife initially approved LTD

benefits, but later found that Keegan had improved to the point
that he was no longer disabled under the terms of the plan.

[DE

14, ML 1205—07; DE 14, ML 896-99].
After Keegan’s chemotherapy treatment concluded, he moved
back to Austin, Texas, where he was followed for relapse by Dr.
Michael Kasper of Texas Oncology. [DE 14, ML 754—55].
office

visit

with

Dr.

Kasper

on

February

4,

2010,

complained of problems with his memory and anxiety.
745—46].

During an
Keegan

[DE 14, ML

Dr. Kasper recommended an evaluation by a neurologist

for memory loss.

[DE 14, ML 746].
5

On February 22, 2010, Keegan saw a primary care physician,
Dr. Wendy Merola, for depression.

[DE 14, ML 802].

that he was anxious, depressed, and tense.

She noted

She recommended

exercise and that he connect with his friends and family. [DE
14, ML 803].
The next day, February 23, 2010, Keegan saw Dr. Arthur
Forman

for

a

neuro-oncology

consultation

referral from Dr. Romaguera.
Dr.

Forman

was

neuropathy.”
are

to

of

address

the

the

[DE 14, ML 352].
the

[DE 14, ML 354].

possibilities

on

basis

of

a

Specifically,

“cognition

problem

and

His notes indicate that “there

white

matter

dysfunction

disorder

secondary to neuro-toxic agent and it can contribute to his new
cognition

problem.”

[DE

14,

ML

354].

Dr.

Forman

and

his

associates spent more than three hours examining and counseling
Keegan about his cognitive problem, neuropathy, and treatment
options.

[DE

14,

ML

354].

Dr.

Forman

indicated

that

the

complex mix of medication prescribed to Keegan was playing a
role in his neurological condition.

[DE 14, ML 369].

Dr.

Forman strongly suggested simplification of his medical program
and

suggested

eliminated.
unremarkable.

certain

medicines

[DE 14, ML 354].

that

should

be

reduced

or

An MRI taken in March 2010 was

[DE 14, ML 1092].

6

Later, on March 26, 2010, Mariana Witgert, Ph.D., performed
a

neuropsychological

evaluation

complaints of memory loss.

of

Keegan

related

[DE 14, ML 239].

to

his

Dr. Witgert’s

testing, which took approximately nine (9) hours, revealed that
Keegan was impaired in aspects of memory, executive functioning,
and

motor

skills.

performance

test

[DE

using

14,

a

ML

word

240—41].

list,

During

Keegan

a

showed

memory

“reduced

learning efficacy and impaired retention, with no benefit from
retrieval cues” and his visual learning was also impaired.
14,

ML

241].

executive

“[W]eaknesses

functioning,

were

including

observed
reduced

for

[DE

aspects

processing

of

speed,

difficulty with divided attention, and low average range verbal
reasoning.”

[DE 14, ML 241].

Additionally, Keegan’s upper

extremity grip strength and motor dexterity in his right hand
were impaired.

[DE 14, ML 241].

While Keegan’s intelligence

prior to cancer treatment was estimated to be “high average,”
Dr.

Witgert’s

intelligence

testing

following

demonstrated
cancer

that

treatment.

he
[DE

had
14,

average
ML

240].

Overall, his memory performance was “characterized by reduced
learning efficiency and impaired retention, with no benefit from
retrieval

cues.

Similarly,

learning

and

recall

information was impaired.” [DE 14, ML 241].

for

visual

His free recall

after a delay was approximately 60%, which is in the low average
7

range.

[DE 14, ML 240].

He was weak in “aspects of executive

functioning, including reduced processing speed [and] difficulty
with divided attention . . . .” Id.

Dr. Witgert concluded that:

observed
impairments
in
memory
and
executive
functioning likely reflect the untoward impact of his
cancer and cancer treatment. Depression and anxiety
are
likely
to
exacerbate
underlying
cognitive
weaknesses.
Given the nature and severity of his
current cognitive impairments, it appears unlikely
that he would be able to resume competitive employment
at this time.
[DE 14, ML 241].

At the time Dr. Witgert found Keegan to be

unable to work due to his cognitive impairments, Keegan was
“independent

in

performing

basic

activities

of

self-care,”

managed his own medication, assisted with household tasks, and
was driving independently.

[DE 14, ML 239].

Feeling that the Lexapro prescribed by his physician eight
weeks earlier was making him more anxious, Keegan visited Dr.
Denae Rickenbacker in September 2010 for a second opinion.
14, ML 1021].

[DE

Dr. Rickenbacker administered a Folstein Mini-

Mental Status Exam, a 30 question test designed specifically to
assess

cognitive

impairment.

[DE

14,

ML

1022].

He

scored

a

perfect 30 out of 30, although he did have some difficulty with
calculation.
estimated

[DE

Plaintiff

14,
at

Functioning test (“GAF”).

ML
a

1017—18].
65

on

the

Dr.

Rickenbacker

Global

[DE 14, ML 1017—18].

8

later

Assessment

of

In February 2011, Keegan saw Dr. Romaguera for restaging
follow up and evaluation for mantle cell lymphoma.

[DE 14, ML

308].

[DE 14, ML

There was no evidence of recurrent cancer.

308].

Metlife

indicate

that

points

“he

is

without any difficulty.”

out
able

that
to

the

notes

perform

his

from

that

daily

visit

activities

[DE 14, ML 308].

In late March 2011, Dr. Rickenbacker noted “intact” memory
and concentration on Keegan’s chart.

[DE 14, ML 943].

In April

2011, Keegan told Dr. Rickenbacker that his mood and anxiety
were

well-controlled.

[DE

14,

ML

941].

Dr.

Rickenbacker

indicated that Keegan’s psychiatric symptoms were in remission.
[DE 14, ML 942].
During

an

interview

with

one

of

MetLife’s

in-house

psychiatric consultants on June 20, 2011, Keegan reported that
he

had

cognitive

issues

since

his

cancer

treatment.

consultants’ notes of the conversation read as follows:
If I don’t write something down, it does not get done.
I worked at a high level IT program and I cannot do
that any more. I can’t work at the same level as when
I left Samsung. I can call boats and do things for my
friends at the ski dock. . .” He also reports that he
has tingling and numbness in his hands and feet and
has not improved. In his job as Sr. Engineer he worked
with software and hard ware (sic). He developed
computer systems, designed hardware, hardware systems.
He currently works part time helping a friend at a
boat shop approximately 20 hours/month. In describing
this job at the boat shop he reports, “The owner is a
friend from 20 years ago. I check chemicals, make
calls, run errands, pick up parts or deliver, pick up
9

The

a new boat at the factory, so I do a little driving,
some simple computer work but not extensive. Whatever
they need. I identify something that needs to be done
and go do. Sort of like at Samsung but at a lower
level. . .”
[DE 14, ML 141—42].

Importantly, Keegan reported that “his

depression has improved but he doesn’t see much difference in
his

cognitive

skills.”

[DE

14,

ML

143].

The

interviewer

observed that Keegan had difficulty with dates and that his
speech was “halting.” [DE 14, ML 144—45].

Nonetheless, the

notes indicated that “memory issues and cognitive issues are not
currently document[ed] in the medical [records]” and there was
“no current information to support a Cognitive DO, NOS.” [DE 14,
ML 157].
In a letter dated July 13, 2011, MetLife informed Keegan
that his claim was denied, effective June 3, 2011, because he no
longer met the plan’s definition of disability.
99].

[DE 14, ML 896—

In denying benefits, MetLife relied on Dr. Rickenbaker’s

treatment notes indicating that Keegan’s psychiatric symptoms
were

in

significant

remission.
cognitive

neuropsychological
information

While

letter

impairments

testing,

previously

the

MetLife

referenced

identified

states
and

acknowledged

“the

received

the

through

most

recent

from

Dr.

Rickenbacker, current treating psychiatrist, does not indicate
significant cognitive impairment and instead reports remission
10

of

psychiatric

symptoms.”

[DE

14,

ML

897].

MetLife

also

referenced Keegan’s own reports of continued memory issues and
halting speech during an interview on June 20, 2011.
898].

[DE 14, ML

However, “memory issues and cognitive issues were not

currently documented in the medical. . . . There is no current
information to support a Cognitive [sic] diagnosis.”
898].

[DE 14, ML

In summary, MetLife concluded that the “medical on file

currently lacks objective findings whether by diagnostic testing
or by physician assessment finding that indicate you have either
physical or cognitive dysfunction . . .”.
Keegan

appealed

his

[DE 14, ML 898].

determination.

During

the

appeal

MetLife hired two outside consultants to review the records, but
at no point did MetLife ask for Keegan to undergo a physical
exam.

MetLife hired Keven Murphy, Ph.D, a licensed psychologist

with a specialty in neuropsychology and John Ellerton, M.D.,
F.A.C.P., Diplomate, Subspecialty Board of Oncology, to review
the file and issue reports.
Dr. Murphy called many of Mr. Keegan’s treatment providers
in an attempt to learn more about his condition, including Dr.
Witgert. [DE 14, ML 224].

However, Dr. Witgert informed him

that the release form allowing her to share Mr. Keegan’s medical
information

with

MetLife

had

expired,

and

she

would

need

a

current release before she could talk to Dr. Murphy. [DE 14, ML
11

224]. There is no indication in Dr. Murphy’s report that any
additional

efforts

were

made

to

speak

with

Dr.

Witgert.

Considering his review of the record and his conversations with
Keegan’s
Murphy

treating

concluded

resolved.

physicians
that

or

Keegan’s

[DE 14, ML 229—30].

their

office

cognitive

personnel,

problems

must

Dr.
have

Dr. Ellerton concluded that

Keegan’s cancer was in remission and that he was not disabled as
a result of any physical symptoms.
Based on these reports, MetLife denied Keegan’s appeal by
letter dated March 28, 2012. [DE 14, ML 211—15]. Despite Dr.
Witgert’s report and the lack of any evidence of improvement in
his cognitive impairments, the denial stated that “[t]here was a
question of some difficulty with his cognitive functioning,” but
“the [consultant] noted there was nothing in the record that
would suggest the Mr. Keegan had any specific difficulty” with
cognitive functioning. [DE 14, ML 213].
Dr. Witgert conducted another round of cognitive assessment
with Keegan one week after the date of MetLife’s denial of his
appeal, on April 4, 2012.

[DE 22-2].

Keegan asserts that Dr.

Witgert concluded that Keegan was still disabled as a result of
his cognitive impairments at that time.

12

II.

Standard of review

Generally, a denial of benefits challenged under 29 U.S.C.
§ 1132 (a)(1)(B) is reviewed de novo by this Court “unless the
benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe
the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989).
that

MetLife’s

authority

to

Plan

Here, the parties and the Court agree

grants

determine

the

eligibility

administrator
for

discretionary

benefits

or

construe

terms of the plan and, thus, this Court will review MetLife’s
determination
review.

under

the

arbitrary

and

standard

of

See Marks v. Newcourt Credit Group, Inc., 342 F.3d 444,

456 (6th Cir. 2003) (citations omitted).
review,

capricious

the

administrator’s

decision

Under this standard of
will

be

upheld

if

decision is “rational in light of the plan’s provisions.”
at 457 (citations omitted).
III. Analysis
A. MetLife’s determination was arbitrary and capricious.
The initial denial letter sent to Keegan stated that:
[T]he most recent information previously referenced
and received from Dr. Rickenbaker, current treating
psychiatrist, does not indicate significant cognitive
impairment
and
instead
reports
remission
of
psychiatric symptoms. . . . In an interview . . . you
reported memory issues and speech was halting during
the interview . . . . However, memory issues and
cognitive issues were not currently documented in the
13

the
Id.

medical. We attempted to clarify information with Dr.
Rickenbaker by phone and fax [ ] but have received no
response. There is no current information to support
a Cognitive [sic] diagnosis.
The frequency and type
of treatment do not appear to be consistent with a
severe and debilitating major psychiatric disorder . .
. .
[DE

14,

ML

psychiatric

897—98].
symptoms

Keegan
improved

does

to

the

not

dispute

point

that

that
he

his

stopped

seeing Dr. Rickenbacker, his psychiatrist, in April 2011, but
maintains that his cognitive deficiencies were separate and had
not

improved

benefits.
The

at

the

time

of

MetLife’s

discontinuation

of

This Court agrees.
ultimate

question

is

whether

“a

plan

can

offer

a

reasoned explanation, based on the evidence, for its judgment
that a claimant was not ‘disabled’ within the plan’s terms.”
Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 617 (6th Cir.
2006).
had

Evidence suggesting that Keegan’s psychiatric symptoms

resolved

cognitive

does

not

symptoms

necessarily

and

certainly

reveal
does

an

not

improvement
mean

that

in
his

cognitive deficiencies improved to the point that Keegan was no
longer

disabled

under

the

terms

of

the

Plan.

MetLife’s

conclusion that the resolution of Keegan’s psychiatric symptoms
translated

to

resolution

of

his

cognitive

reasonable given the evidence in the record.

14

abilities

is

not

There
resolved.

is

evidence

that

Keegan’s

psychiatric

symptoms

However, the only opinion in the record as to cause

was that his cognitive deficiencies were caused by his cancer
treatment.

There is no indication that his cognitive symptoms

had resolved to the point that he was capable of earning more
than 80% of his predisability earnings.2

His psychiatric issues

may have exacerbated his cognitive symptoms, but they were not
the cause of his cognitive impairments.
that

MetLife’s

psychiatric

consultants

symptoms

deficiencies.

This

with

confused

The record demonstrates
improvement

resolution

confusion

of

resulted

unsupported by the record before this Court.

2

of

his
in

Keegan’s
cognitive

conclusions

Without evidence

The LTD Plan states:
Disabled or Disability means that, due to Sickness or as
a direct result of accidental injury:
You are receiving Appropriate Care and Treatment and
complying with the requirements of such treatment; and
You are unable to earn:
during the Elimination Period and the next 24 months of
Sickness or accidental injury, more than 80% of Your
Predisability Earnings at Your Own Occupation from any
employer in Your Local Economy; and
after such period, more than 80% of your Predisability
Earnings from any employer in Your Local Economy at any
gainful occupation for which You are reasonably qualified
taking
into
account
your
training,
education
and
experience.

[DE 14, ML 1401].

15

that

Keegan’s

cognitive

deficiencies

had

improved,

the

only

evidence in the record of cognitive impairments was a finding by
Dr.

Witgert

that

Keegan

was

disabled

due

to

his

cognitive

symptoms.
MetLife’s

consultant

who

reviewed

Keegan’s

records

concluded that Keegan “is able to [perform activities of daily
living] without assistance and was able to get self [sic] to
[doctor’s

appointment],

as

he

is

noted

to

show

up

alone,

therefore cognitive issues have resolved also.” [DE 14, ML 150].
However, there is no indication in the record that Keegan’s
cognitive

impairments

activities

of

appointments.

ever

daily
In

impacted

living

fact,

or

during

his

ability

transport
the

time

to

himself
he

was

perform
to

his

considered

disabled by MetLife and at the time Dr. Witgert concluded that
Keegan

was

unable

to

return

to

work,

independent daily living and driving.

he

was

capable

of

Thus, there seems to be

no correlation between his ability to live independently and
perform daily tasks and the severity of his cognitive symptoms.
In

addition

issues

with

Keegan

was

evidence.

to

misconstruing

cognitive
no

longer

improvement

improvement,
disabled

was

MetLife’s
not

based

of

psychiatric

decision
on

that

substantial

Although the arbitrary and capricious standard of

review may be deferential, this “review is not no review and
16

deference need not be abject.”
Life

Ins.

Co.,

347

F.3d

161,

McDonald v. Western-Southern
172

(6th

Cir.

2003)

(citation

omitted) (internal quotation marks omitted).
Cancellation of benefits in the absence of evidence showing
that

the

claimant’s

explanation

for

condition

the

had

apparent

improved

and

discrepancy

assessments is arbitrary and capricious.

without

from

an

earlier

See Kramer v. Paul

Revere Life Ins. Co., 571 F.3d 499, 507 (6th Cir. 2009); see
also McCollum v. Life Ins. Co. of N. Am., 495 F. App’x 694, 704
(6th Cir. 2012) (“The plan administrator must have some reason
for

the

change.”).

administrator

who

“[I]t

is

determines

reasonable
that

a

to

require

participant

a

plan

meets

the

definition of ‘disabled,’ then reverses course and declares that
same participant ‘not disabled’ to have a reason for the change;
to do otherwise would be the very definition of arbitrary and
capricious.’”

Morris v. Am. Elec. Power Long-Term Disability

Plan,

App’x

399

original).

F.

978,

984

(6th

Cir.

2010)

(emphasis

in

A decision is not supported by substantial evidence

if there is no evidence that the claimant’s condition improved
and

improvement

is

the

only

basis

offered

for

the

plan

administrator’s change in determination.
In this case, Dr. Witgert stated that Keegan was unable to
work given the severity of his cognitive impairments.
17

That was

the only opinion regarding Keegan’s cognitive ability to return
to work by a treating physician.

MetLife argues that there is

no evidence that Keegan still suffered from the same cognitive
deficiencies at the time.

However, Keegan reported during his

interview that he was still having problems with his memory and
the interviewer also observed symptoms that would be consistent
with

continued

cognitive

impairment.

Moreover,

there

is

objective testing and an opinion by Dr. Witgert that Keegan was
unable

to

work

due

to

his

cognitive

deficiencies.

It

is

undisputed that none of Keegan’s treating physicians opined, at
any

time,

that

his

cognitive

symptoms

had

resolved.

No

cognitive testing demonstrated any improvement in any of the
areas

of

cognitive

impairments

identified

in

Dr.

Witgert’s

in

treating

extensive testing.
While

some

of

the

notations

contained

physicians’ files indicate that Keegan did not report memory or
cognitive

difficulties

during

those

office

visits,

these

are

physicians who were treating Keegan for issues other than his
cognitive

deficiencies.

Metlife

argues

that

the

absence

of

cognitive symptoms in the treating notes submitted by Keegan’s
oncologist

and

psychiatrist

as

evidence

of

improvement,

but

Keegan was not visiting these physicians for treatment of his
cognitive issues.

The absence of the notation of cognitive
18

symptoms by these specialists is not necessarily indicative of
the degree of Keegan’s improvement in this area.
MetLife relies on Keegan’s perfect score on the Folstein
Mini-Mental Status Exam administered by Dr. Rickbacker, which
MetLife asserts was designed to assess cognitive impairment as
evidence that Keegan’s cognitive impairment improved.

However,

there is no indication that this test necessarily represented an
improvement

over

his

there

is

earlier

testing

in

the

same

areas

of

cognition.
That

some

evidence

to

support

MetLife’s

determination that Keegan is not disabled is of no import.
Court’s

review

is

more

extensive.

This

standard

of

This
review

“inherently includes some review of the quality and quantity of
the

medical

issues.”

evidence

and

the

opinions

McDonald, 347 F.3d at 172.

on

both

sides

of

the

“Otherwise, courts would

be rendered to nothing more than rubber stamps for any plan
administrator’s decision as long as the plan was able to find a
single piece of evidence—no matter how obscure or untrustworthy—
to support a denial of a claim for ERISA benefits.”

Id. (citing

Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315
F.3d 771, 774—75 (7th Cir. 2003)).
Considering

the

quantity

and

quality

of

the

medical

evidence and opinions on the issues, MetLife’s decision was not
19

supported by substantial evidence, as there is no evidence that
the claimant’s condition improved and improvement was the only
reason offered for the change in the disability determination.
Additionally, in this case, MetLife’s failure to conduct a
physical exam, where it had reserved the right to do so, is
further

evidence

of

an

arbitrary

and

capricious

decision.

Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir.
2005)

(“[T]he

failure

to

conduct

a

physical

examination—

especially where the right to do so is specifically reserved in
the

plan—may,

in

some

thoroughness

and

Rather

conduct

absence

than
of

cases,

accuracy
a

current

of

raise

the

questions

benefits

physical

exam,

complaints

of

about

the

determination.”).

MetLife

relied

cognitive

on

the

deficiencies

demonstrated in a record review to deny his benefits.

However,

Keegan reported that his cognitive difficulties continued during
his interview with MetLife.

In his interview with an in-house

psychiatric consultant shortly before his benefits were denied,
Keegan reported that “depression has improved but he doesn’t see
much difference in his cognitive skills.”

[DE 14, ML 143]. He

described his symptoms, which echoed the same difficulties that
he had discussed with Dr. Witgert.

[DE 14, ML 143].

MetLife’s denial of benefits was based on a rejection of
the

credibility

of

Keegan’s

statements
20

during

the

interview.

Under these circumstances, the lack of a physical exam further
supports

this

Court’s

finding

arbitrary and capricious.

that

the

determination

was

Smith v. Cont’l Cas. Co., 450 F.3d

253, 263—64 (6th Cir. 2006) (finding that the decision not to
order an examination, where the plan reserved the right to do
so,

was

arbitrary

administrator

and

made

capricious,

credibility

particularly

determinations

where

the

concerning

subjective complaints); Pitts v. Prudential Ins. Co. of Am., 534
F. Supp. 2d 779, 790 (S.D. Ohio

2008) (“[T]his Court finds that

[the administrator]’s decision not perform an IME, in light of
its citation to a lack of data verifying the severity of any
potential

disabilities,

supports

the

finding

that

the

termination of benefits was arbitrary and capricious.”).
MetLife’s determination to discontinue his LTD benefits was
arbitrary

and

capricious

because

it

was

not

a

reasonable

conclusion and was unsupported by any evidence in the record
indicating that his cognitive deficiencies had improved since
Dr. Witgert’s testing.

Additionally, Metlife’s reliance on its

consultants’ record reviews, where Keegan had recently reported
continuation of cognitive impairments and where MetLife reserved
the

ability

to

require

additional

medical

exams,

is

evidence of MetLife’s arbitrary and capricious analysis.

21

further

B. Keegan is entitled to retroactive benefits.
Having

determined

that

the

administrator’s

decision

was

arbitrary and capricious, a court “may either award benefits to
the claimant or remand to the plan administrator.”
Metro.

Life

(citation

Ins.

Co.,

F.3d

The

omitted).

473

613,

court

621

“must

(6th
have

Elliott v.
Cir.

2006)

considerable

discretion to craft a remedy after finding a mistake in the
denial of benefits.”

Id. at 622 (quoting Buffonge, 426 F.3d at

31—32)). “[W]here the ‘problem is with the integrity of [the
plan's] decision-making process,’ rather than ‘that [a claimant]
was

denied

benefits

appropriate

remedy

administrator.”

to

which

he

generally

was
is

clearly
remand

entitled,’
to

the

the
plan

Elliott, 473 F.3d at 622. Where a claimant is

clearly entitled to disability benefits, “[p]lan administrators
should not be given two bites at the proverbial apple . . .
except in cases where the adequacy of the claimant’s proof is
reasonably debatable.” Cooper v. Life Ins. Co. of N. Am., 486
F.3d

157,

172

(6th

Cir.

2007)(finding

that

remand

was

not

necessary).
In this case, there was no evidence that Keegan’s cognitive
issues had resolved to the point that he was no longer disabled
at the time MetLife denied his benefits.

The evidence in the

record supports the conclusion that Keegan was disabled as a
22

result of his cognitive issues at the time that MetLife denied
his benefits. In the absence of evidence of improvement, or of
some

other

basis

for

MetLife’s

change

in

determination,

and

given that Keegan had previously been declared disabled, Keegan
was “clearly entitled” to benefits. Elliott, 473 F.3d at 622
(quoting Buffonge, 426 F. 3d at 31—32).3

Accordingly, Keegan

will be awarded retroactive benefits.
C. The Court will not determine whether MetLife’s alleged
procedural error would permit outside evidence to be
considered.
Having

determined

that

MetLife’s

denial

of

benefits

was

arbitrary and capricious, this Court need not address Keegan’s
argument that the Court should consider Dr. Witgert’s April 4,
2012

neuropsychological

testing

report,

which

was

completed

after MetLife’s final denial of Plaintiff’s claim and is not
part of the administrative record on review.
court

only

considers

the

evidence

available

Generally, the
to

the

administrator at the time a final decision was made.

Perry v.

Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 1990).
argues

3

that

MetLife

failed

to

comply

with

the

plan

Keegan

procedural

Although not considered in this Court’s analysis for the
reasons discussed in Section C herein, the results of Keegan’s
cognitive tests on April 4, 2012, if considered, would further
bolster the conclusion that Keegan remained disabled during the
time period between his initial denial and at least that date of
testing, particularly when considered in light of the lack of
evidence of improvement of his symptoms during that time period.
23

protections of 29 U.S.C. § 1133 because its denial letter did
not adequately describe the additional information that MetLife
was looking for in review of his claim, specifically, updated
cognitive testing.

See Vanderklok v. Provident Life and Acc.

Ins. Co., 956 F.2d 610, 616 (6th Cir. 1992) (“The letter is
defective because it fails to provide the specific reason or
reasons for denial . . . . nor is there any indication of what
additional proof may be required.”).

However, having found that

MetLife’s decision was arbitrary and capricious on the basis of
the record before it, the Court need not address whether the
additional evidence should be considered in this instance.
D. MetLife is entitled to recover the overpayments made to
Keegan and Keegan is entitled to recover the amount of
the underpayments by MetLife.
Having determined that MetLife’s determination to deny LTD
benefits in June 2011 was arbitrary and capricious, the Court
must turn to the parties’ remaining claims. Both parties claim
that they are owed additional money as a result of errors made
in the calculation of benefits between August 4, 2009 and June
3, 2011, the 22 month period in which Keegan was originally
entitled
arguing
received

to

benefits.

that

Keegan

social

MetLife
was

security

himself and his dependents.

filed

overpaid
disability

a

LTD

Counterclaim
benefits

insurance

[DE

7]

because

he

benefits

from

Although some reduction was made to
24

Keegan’s benefits on this basis during the initial period, the
net

overpayment

$16,536.11.

owed

[DE

to

7].

Metlife,

Keegan

it

argues

argues,
that

he

is

currently

was

underpaid

benefits through the relevant period because Metlife did not
include his bonus as part of his predisability earnings, as
allowed by the Plan.

[DE 22; DE 14, ML 1403 (“Predisability

Earnings . . . includes . . . awards and bonuses, except for one
time pay-out.”)].

Consequently, Keegan argues he was underpaid

by a total of $12,858.78.
i.

[DE 22, Page ID 22].

MetLife’s claim of overpayment.

Keegan does not dispute that he owes the overpayment or the
amount of overpayment.

Keegan concedes that “MetLife would have

a

the

clear

right

under

policy’s

language

to

recover

the

overpayment from ‘any future Disability benefits.’” [DE 33, Page
ID 302].

Instead, Keegan argues that MetLife cannot recover the

overpayment from him directly.

Keegan argues that MetLife has

not stated a claim for equitable relief, as required under 29
U.S.C. § 502(a)(3), because the Plan did not adequately identify
a particular fund4 from which recovery may be had or whether the

4

ERISA provides that a fiduciary may bring a civil action to
enforce the terms of a plan to obtain equitable relief, but not
an award of compensatory damages. See 19 U.S.C. § 502(a); 29
U.S.C. § 1132(a)(3); Mertens v. Hewitt Assoc., 508 U.S. 248,
255—60 (1993).
“For restitution of insurer overpayments to be
of an equitable nature, the restitution must involve the
25

funds are still in Keegan’s possession.

Furthermore, Keegan

argues that MetLife may not recover his social security benefits
directly

due

provision.
As

the

Social

Security

Act’s

anti-assignment

42 U.S.C. § 407(a).

this

disability

to

Court

has

found

that

benefits

and

it

undisputed

is

Keegan

is
that

entitled

to

MetLife

may

recover the overpayment by reducing the LTD benefits paid under
the Plan, MetLife has a method of recovery of the overpayments
available to it.

This Court sees no need to determine whether

MetLife could recover from Keegan directly.

MetLife’s claim to

overpayments, to the extent that MetLife seeks to recover from
Keegan directly, is denied as moot.
ii.

Keegan’s claim of underpayment of LTD benefits.

MetLife does not dispute the merits of Keegan’s claim that
he was entitled to additional LTD benefits because his bonus was
not

included

in

his

predisability

earnings

calculation.

Instead, MetLife argues that Keegan is precluded from raising

imposition of a constructive trust or equitable lien on
‘particular funds or property in the [insured’s] possession.’”
Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d 270, 274—
75 (6th Cir. 2010) (quoting Great-West Life & Annuity Ins. Co.
v. Knudson, 534 U.S. 204, 213 (2002)). “The plan must identify
a particular fund, distinct from an insured’s general assets,
and the portion of that fund to which the plan is entitled.”
Hall, 595 F.3d at 275 (citing Sereboff v. Mid Atl. Med. Servs.,
Inc., 547 U.S. 356, 363 (2006)).
26

this

issue

because

administrative
conceded

he

neglected

proceedings.

in

its

Answer

administrative

remedies

however,

Keegan

that

to

raise

Keegan

it

asserts,

[DE

7],

that

under

the

plan.

has

not

earlier

exhausted

he

and

in

MetLife

exhausted
MetLife

this

the

his

argues,

issue

at

the

administrative level because it was first raised during briefing
of this matter.
than

issue

Keegan argues that claim exhaustion, rather

exhaustion,

controls

the

matter

and

that

issue

exhaustion is not required.
ERISA has been read to require claim exhaustion.
Bethesda

Hosp.,

However,

the

Sixth

“decline[d]

to

because

the

of

Inc.,

370

Circuit,

impose

such

F.3d
in
[an

non-adversarial

499,
an

504

(6th

unpublished

issue
nature

Cir.

ERISA

2004).

decision,

exhaustion]
of

Coomer v.

has

requirement

proceedings.”

Liss v. Fidelity Emp’r Servs. Co., 516 F. App’x 468, 474 (6th
Cir. 2013) (citing Vaught v. Scottsdale Healthcare Corp. Health
Plan, 546 F.3d 620, 632 (9th Cir. 2008) (“The non-adversarial
nature of the ERISA proceeding weighs against imposing an issueexhaustion requirement.”)); see also Sims v. Apfel, 530 U.S.
103, 110 (2000) (“Where . . . an administrative proceeding is
not adversarial, we think the reasons for a court to require
issue exhaustion are much weaker.”).

This Court will, likewise,

decline to require issue exhaustion in this matter.
27

MetLife does not contest Keegan’s assertion that he was
underpaid by $584.49 per month, or by a total of $12,858.78 due
to

the

exclusion

of

predisability earning.

his

bonus

from

the

calculation

of

his

Accordingly, MetLife shall tender the

appropriate amount to Keegan for the 22 month time period in
which he was entitled to benefits, and include the bonus amount
in the calculation of Keegan’s benefits going forward.
IV.

Conclusion.

For the reasons stated herein, Keegan’s Motion for Judgment
[DE 22] is hereby GRANTED and MetLife’s Motion for Judgment [DE
32] is DENIED.

MetLife may recover the amount of overpayments

to Keegan from the LTD benefits owed to him.
This the 31st day of March, 2014.

28