Young v. Aetna Life Insurance Company et al

Filing 56

District Judge Timothy S Hillman: ORDER AND MEMORANDUM entered denying 40 Motion for Summary Judgment and granting 42 Motion for Summary Judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
)
SUSAN YOUNG,
)
CIVIL ACTION
)
Plaintiff,
)
NO. 4:13-cv-40154-TSH
)
v.
)
)
AETNA LIFE INSURANCE COMPANY
AND CHILDREN’S HOSPITAL BOSTON )
)
GROUP LONG TERM DISABILITY
)
PLAN,
)
)
Defendant.
______________________________________ )

ORDER AND MEMORANDUM ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
(Docket Nos. 40 & 42)
November 16, 2015
HILLMAN, D.J.
Pending before the Court are cross-motions for summary judgment in this action brought
under the terms of the Employee Retirement Income Security Act of 1974 (ERISA). For the
reasons set forth below, Plaintiff’s motion (Docket No. 42) is granted and Defendants’ motion
(Docket No. 40) is denied. Plaintiff’s long-term disability benefits are hereby reinstated and she
is to be compensated for past benefits due beginning on May 25, 2012.
Background
The Plaintiff, Susan Young, initiated this action seeking judicial review of Aetna Life
Insurance Company (Aetna)’s decision to terminate her long-term disability benefits. Plaintiff was
covered under the Children’s Hospital Boston Group Long Term Disability Plan (the Plan), which
is governed by the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29

1

U.S.C. § 1001 et. seq. Children’s Hospital Boston is the plan administrator. (YP1 at 5; Docket No.
22 at 1.) Aetna underwrites the Plan and also serves as the claims administrator. (YP at 9; Docket
No. 22 at 1.) The Plan provides the following “Test of Disability”:
From the date that you first become disabled and until Monthly
Benefits are payable for 36 months, you will be deemed to be
disabled on any day if:
• you are not able to perform the material duties of your own
occupation solely because of: disease or injury; and
• your work earnings are 80% or less of your adjusted predisability
earnings.
After the first 36 months that any Monthly Benefit is payable during
a period of disability, you will be deemed to be disabled on any day
if you are not able to work at any reasonable occupation solely
because of:
• disease; or
• injury.
If your own occupation requires a professional or occupational
license or certification of any kind, you will not be deemed to be
disabled solely because of the loss of that license or certification.
(YP at 10.)
1. Plaintiff’s Pre-Termination Medical History
In May of 2007, Plaintiff began working as a staff nurse at Children’s Hospital Boston.
Approximately sixteen months later, on September 6, 2008, she was involved in a motor-vehicle
accident in which her vehicle was struck from behind. She was forty-seven years old. She did not

1

“YP” refers to the “Young Policy,” which is located in the beginning of the administrative record.
Plaintiff previously moved to exclude the Young Policy from the record, on the basis that this
document was not disclosed to her during the internal appeals process, despite numerous requests.
The Young Policy contains language granting Aetna discretionary authority in the claims
administration process, which in turn affects this Court’s review of Aetna’s decision. (YP at 62);
see D & H Therapy Assoc., LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2011).
Although I found that Aetna’s conduct in this regard was provocative and worthy of reproach, I
declined to exclude the Young Policy from the record. (Docket No. 30 at 4.)
2

return to work after the accident on account of pain in her neck, shoulder, scapula, lower back, and
hip. Plaintiff made a claim for short-term disability (STD) benefits under the Plan; Aetna approved
this claim and paid STD benefits to Plaintiff for twenty-six weeks. Plaintiff then applied and was
approved for long-term disability (LTD) benefits under the Plan. Aetna also approved this claim,
under the “own occupation” definition of disability, and began paying LTD benefits to Plaintiff
beginning March 5, 2009.
In December of 2008, Plaintiff underwent surgery for a left-shoulder labral tear. (AR2 at
1096.) Three weeks after this surgery, she was being treated with a physical therapy program but
noted increasing symptoms in her lower back, right buttock, and radiating down her right leg. (AR
at 932.) Plaintiff continued to report pain in her lower back and right leg seven weeks after the
surgery, and again three months after the surgery, which affected her ability to walk, stand, climb
stairs, sleep, and accomplish household chores. (AR at 927, 930.) In February of 2009, Plaintiff’s
orthopedic surgeon, Dr. Alan Solomon, completed an Attending Physician Statement (APS)3 in
which he noted that Plaintiff was capable of performing sedentary work four hours per day, three
days per week. (AR at 1762.)
In March of 2009, Plaintiff saw Dr. Aneesh Singla for lower-back and leg pain, described
as “aching, sharp, burning, pins/needles, shooting, pressure, electric shock type of sensation.” (AR
at 1634.) The pain became worse with sitting, standing, and driving. (AR at 1634.) Dr. Singla
administered a transforaminal epidural steroid injection later that month, as well as an intraarticular facet nerve block in Lumbar, L3-4, L4-5, L4-S1. (AR at 1636, 1638.) Dr. Singla noted
that these injections provided only minimal improvement and that the cause of Plaintiff’s pain may

2

“AR” refers to the primary administrative record.
The APS is a form promulgated by Aetna and used for the purpose of determining eligibility for
benefits.

3

3

be “multifactorial.” (AR at 1641.) Plaintiff then had a series of sacroiliac (SI) joint injections,
which did improve her pain. (AR at 1642, 1644, 1646.)
On July 1, 2009, Plaintiff was involved in another motor-vehicle accident in which her car
was again struck from behind. After this accident, Plaintiff reported increased pain, numbness,
weakness, and tingling in her lower back and legs. (YR at 912.) In August of 2009, Dr. Solomon
referred Plaintiff to Dr. Jane Louie, a neurologist, for her persistent back pain, right-leg weakness,
right-foot numbness, and new symptoms involving her bladder. (AR at 1342.) An MRI of
Plaintiff’s lumbar spine revealed no conus medullaris abnormality, no disc protrusion, and no
spinal stenosis. (AR at 1342.) There was reported T2 hyperintensity in the subcutaneous fat in the
L1 to L3 level. (AR at 1342.) Dr. Louie suspected that Plaintiff’s bladder symptoms were due to
a prolapsed bladder and recommended that Plaintiff see her gynecologist. (AR at 1343.) Dr. Louie
observed that Plaintiff’s leg weakness was related to pain and fatigue, as her strength was normal
on examination. (AR at 1344.) Dr. Louie advised Plaintiff that the numbness in her right foot
could be caused by an S1 radiculopathy.4 (AR at 1344.)
As noted by Dr. Louie, Plaintiff suffered from stress incontinence and an overactive
bladder, which conditions worsened after the motor-vehicle accidents. (AR at 1145.) In December
of 2009, she underwent surgery to repair a rectocele with prolapse. (AR at 1063.) After this
surgery, however, Plaintiff continued to report bladder spasms in direct relation to muscle spasms
in her lower back. (AR at 1340.) In late December of 2009, Dr. Solomon noted that Plaintiff’s
lower-back pain remained “incompletely explained.” (AR at 906.) He recommended that she

4

Radiculopathy is a “[d]isorder of the spinal nerve roots.” Stedman’s Medical Dictionary 1484
(26th ed. 1995).
4

proceed toward a modified job within the nursing profession, one that would not require significant
physical demands. (AR at 906.)
In February, March, April, and May of 2010, Dr. Singla administered facet block
injections, in an effort to treat Plaintiff’s continuing lower-back, leg, and hip pain. (AR at 1652,
1656, 1658, 1660.) Plaintiff also continued to see Dr. Louie for her lower-back pain and continued
to take Motrin, Vicodin, and Valium. (AR at 1340.) In March of 2010, Dr. Louie noted that
Plaintiff had discontinued physical therapy because it had caused her pain to worsen. (AR at 1338.)
Plaintiff also reported that she could not lift anything and that she felt pain in her coccyx after
prolonged sitting. (AR at 1338.)
In July of 2010, Dr. Louie noted that Plaintiff’s “low back pain syndrome” was “probable
lumbosacral radiculopathy.” (AR at 1336.) Once again, Dr. Louie noted that Plaintiff experienced
unimproved lower-back pain, occasional shooting pains down the right buttock and right leg, and
leg numbness. (AR at 1336.) Plaintiff began taking Gabapentin for pain management, and she
received cauterization of bilateral L3 to L4 nerve roots and felt significant improvement. (AR at
1336.) She also began to see an orthopedic doctor regarding potential surgery on her right hip.
(AR at 1336.) In August of 2010, Dr. Louie noted that the initial improvements reported after the
nerve cauterizations had not lasted, and all of Plaintiff’s symptoms had returned with the addition
of painful spasms in her right leg. (AR at 1334.) Her bladder symptoms had significantly worsened
as well. (AR at 1334.) Plaintiff continued to take Gabapentin, Motrin, Vicodin, and Valium. (AR
at 1334.)
In September of 2010, Plaintiff underwent surgery to repair a labral tear in her right hip,
which was followed by physical therapy. (AR at 1018, 1278, 1284.) Plaintiff continued to see Dr.
Louie for the pain in her lower back, right buttock, and right leg. (AR at 1332.) In October of

5

2010, Dr. Louie once again noted that Plaintiff’s pain had “not improved tremendously” since the
car accidents, despite physical therapy and treatment with Motrin and Vicodin. (AR at 1332.) She
further noted that, although Plaintiff had recently undergone hip-repair surgery, her back pain was
“still debilitating.” (AR at 1332.) Dr. Louie also decreased Plaintiff’s dose of Gabapentin due to
its “mental dulling” effect. (AR at 1332.)
Dr. Alfred Hanmer, who had performed Plaintiff’s hip surgery, noted in November of 2010
that she “had a flare-up of back discomfort,” as well as pain, swelling, and color changes in her
foot. (AR at 1468.) In December of 2010, Dr. Solomon completed another APS, as well as a
Capabilities and Limitations Worksheet,5 in which he noted that Plaintiff had no present ability to
work and would need to be absent from work for another ten weeks. (AR at 1672, 1674.) Dr.
Louie noted in January of 2011 that Plaintiff was participating in physical therapy due to her recent
hip surgery but that her back pain was “still debilitating.” (AR at 1330.) Plaintiff was taking
Gabapentin but reported that it made her feel “dopey.” (AR at 1330.) She was still experiencing
painful spasms in her right leg as well as bladder spasms. (AR at 1330.) She also had been recently
hospitalized for a partial bowel obstruction and was deemed no longer able to take nonsteroidal
anti-inflammatory drugs (including Motrin). (AR at 1330.)
In April of 2011, Dr. Louie completed an APS, in which she opined that Plaintiff could
perform some sedentary work activity, with no lifting, pulling, or pushing, and no prolonged
standing or walking. (AR at 1493.) Dr. Louie did not opine as to how many hours per day or days
per week Plaintiff could perform this type of work, noting that she presently could not resume her
duties as a nurse and that she would need to be absent from work indefinitely. (AR at 1492-93.)

5

The Capabilities and Limitations Worksheet is a form promulgated by Aetna, which accompanies
the APS and is used to determine eligibility for benefits.
6

The Capabilities and Limitations Worksheet accompanying this APS was left blank. (AR at 1495.)
Dr. Hanmer noted in April of 2011 that Plaintiff was taking Vicodin, Gabapentin, and Cymbalta
“for back pain, which she has of the chronic nature.” (AR at 1470.)
In August of 2011, Plaintiff fell and broke her wrist. (AR at 1274.) Also in August of 2011,
Aetna notified Plaintiff of the upcoming change in the definition of disability pursuant to the Plan.
After thirty-six months of receiving disability benefits, the Plan’s definition changed from the
“own occupation” standard to the “any reasonable occupation” standard. (AR at 540; YP at 10.)
Plaintiff responded with a letter, in which she explained that she continued to experience back
pain, which limited her ability to sit, stand, or walk for extended periods of time. (AR at 1477.)
She also explained that she suffered from radiculopathy, which caused pain and numbness down
her right leg and into her right foot. (AR at 1477.) She reported that she walked with an unsteady
gait and would trip frequently, one of these falls resulting in her recently broken wrist. (AR at
1477.) She noted that a total right hip replacement had been scheduled for August of 2011 but had
been postponed because of the injury to her wrist. (AR at 1477-78.) She was taking Gabapentin
and Cymbalta, which were somewhat effective for managing her pain but often left her feeling
drowsy. (AR at 1478.)
In November of 2011, Plaintiff underwent a total right hip replacement due to
osteoarthritis. (AR at 1256.) In January of 2012, Dr. Louie noted that Plaintiff was undergoing
physical therapy for her right hip but that the physical therapy worsened her lumbago6 and caused
further numbness in her right leg. (AR at 1247.) Dr. Louie noted that Plaintiff’s bladder spasms
had resolved, and that she was still taking Gabapentin even though it made her feel “dopey.” (AR

6

Lumbago is “[p]ain in the mid and lower back; a descriptive term not specifying cause.”
Stedman’s Medical Dictionary 998 (26th ed. 1995).
7

at 1247.) Plaintiff had stopped taking Cymbalta because it made her too sleepy; she had fallen
down stairs multiple times. (AR at 1247.) She was treating her pain with Vicodin, Valium, a
Lidoderm patch, and a Transcutaneous Electrical Nerve Stimulation (TENS) unit. (AR at 1248.)
Dr. Louie noted that Plaintiff had full strength in all muscle groups with initial effort, with some
weakness in the right hamstring due to pain, as well as decreased sensation in two of her toes. (AR
at 1248.) Her reflexes were intact. (AR at 1248.) Dr. Louie observed that Plaintiff’s weakness
was due to pain. (AR at 1248.) Dr. Louie further noted that Plaintiff’s back pain was chronic, that
she had “probable right S1 lumbosacral radiculopathy,” and that her symptoms were “still
debilitating.” (AR at 1248.) Because Dr. Singla was no longer in the area, Dr. Louie referred
Plaintiff to Dr. Janet Pearl for further interventions for her radiculopathy. (AR at 1248.)
In January of 2012, Plaintiff’s physical therapist also noted that her strength was limited
by her pain and that she was experiencing a flare-up of her lower back. (AR at 1003.) Her gait
was especially unsteady and she had difficulty walking up and down stairs and transferring in and
out of a vehicle. (AR at 1003.)
Dr. Louie completed a Capabilities and Limitations Worksheet in February of 2012. (AR
at 1411.) She found that, during an eight-hour work day, Plaintiff could never climb, crawl, kneel,
lift, pull, push, reach above her shoulder, reach forward, carry, bend, twist, stand, stoop, or walk.
(AR at 1411.) She further found that Plaintiff could perform hand grasping, firm hand grasping,
and fine manipulation for only two-and-a-half to five hours out of an eight-hour day. (AR at 1411.)
She found that Plaintiff could perform the activities of gross manipulation, repetitive motion, and
sitting for only one-half to two-and-one-half hours out of an eight-hour day. (AR at 1411.) Plaintiff
was incapable of lifting any weight, she could not operate a motor vehicle, and she could only keep
her head and neck in a static position, with no flexing or rotation. (AR at 1411.) Dr. Louie noted

8

that Plaintiff’s restrictions were indefinite and that she had not significantly improved despite
various attempted treatments. (AR at 1411.) In an accompanying APS, Dr. Louie noted that
Plaintiff’s primary diagnosis was right S1 radiculopathy and that she would need to be absent from
work indefinitely. (AR at 1413-14.)
In March of 2012, Plaintiff sent another letter to Aetna, explaining that she continued to
experience significant daily pain in her lower back as well as pain and numbness in her right leg
and foot. (AR at 1210.) She stated that she had difficulty standing or sitting for any extended
period of time, she could not lift anything heavier than five-to-ten pounds, and that she required a
cane to walk. (AR at 1210.) She also reported that she was taking daily doses of Cymbalta and
Gabapentin, both of which had sedative effects, and she was taking narcotic pain medication as
needed. (AR at 1210.) Plaintiff further explained that, on days when she had to go out for errands,
physical therapy, or doctor’s visits, she would be so uncomfortable by the end of the day that she
would have to take additional pain medications, use ice/heat therapy, and would have to spend the
following day resting at home. (AR at 1210.)
Plaintiff began seeing Dr. Janet Pearl for pain management in February of 2012. (AR at
994.) Dr. Pearl noted Plaintiff’s description of her pain as “aching, pressure, stabbing the lower
back ‘like an elephant’s foot,’ aching in right leg.” (AR at 994.) Plaintiff rated the pain as 4-5/10
on average, 4/10 at the time of the appointment, 2/10 at the least, and 10/10 at the worst. (AR at
994.) Dr. Pearl further noted that the timing of Plaintiff’s pain was continuous, that it interfered
with her ability to sleep, and that it caused numbness, tingling, and burning in her right calf and
foot, sometimes accompanied by weakness of the legs. (AR at 994.) Dr. Pearl noted that Plaintiff’s
pain was improved by heat, ice, walking with a cane, and medications including Vicodin and
Tylenol. (AR at 994.) The pain was exacerbated by standing, bending, sitting, movement, and

9

walking up or down stairs. (AR at 994.) Dr. Pearl further noted that Plaintiff’s spine had been
imaged in February of 2009, revealing no disc protrusion or spinal stenosis, and she had previously
had a PET scan. (AR at 994.)
Regarding medications, Dr. Pearl noted that Plaintiff’s dosages of Gabapentin and
Cymbalta had been lowered because of over-sedation and related falls, and she was taking Vicodin
occasionally. (AR at 994.) Dr. Pearl diagnosed Plaintiff with sciatica7 and lumbago. (AR at 990,
991, 995, 996.) In her continuing treatment of Plaintiff in February of 2012, Dr. Pearl administered
trigger point injections and a lumbar transforaminal steroid injection, noting a pre-operative
diagnosis of muscle spasms and lumbar radiculopathy. (AR at 992.) In March of 2012, Plaintiff
reported that her pain had improved immediately after the injections but had then returned. (AR at
989.) Compared to her previous visit, the pain was worse in her lower back and unchanged in her
right leg. (AR at 989.) In continuing to adjust Plaintiff’s medication levels, Dr. Pearl noted that
Plaintiff experienced no side effects from a dose of 20 mg of Cymbalta. (AR at 989.) Plaintiff also
reported neck pain, which had begun two months prior, described as tight and “locking.” (AR at
989.)
Dr. Pearl administered trigger point injections and a lumbar medial branch block in March
of 2012, and radiofrequency lesioning of the facet joint in April and May of 2012 (AR at 983,
985.) In July of 2012, Plaintiff reported that these procedures had not offered any relief and her
pain remained unchanged. (AR at 980.) Plaintiff was taking Vicodin every morning and evening,
but she decided to discontinue the Gabapentin and Cymbalta because she did not want to be taking

7

Sciatica is “[p]ain in the lower back and hip radiating down the back of the thigh into the leg,
initially attributed to sciatic nerve dysfunction (hence the term), but now known to usually be due
to herniated lumbar disk compromising the L5 or S1 root.” Stedman’s Medical Dictionary 1580
(26th ed. 1995).
10

so many medications. (AR at 980.) Dr. Pearl’s assessments of Plaintiff’s condition in July of 2012
consisted of lumbago, lumbosacral spondylosis8 without myelopathy,9 sciatica, and spasm of
muscle. (AR at 981.)
Dr. Pearl also noted severe tenderness in Plaintiff’s SI joint and suggested SI joint
injections; Plaintiff underwent these injections in August of 2012. (AR at 978, 981.) After the SI
joint injections Plaintiff still experienced pain in her lower back and buttocks but her so-called
“bone on bone pain” had resolved. (AR at 975.) She had a further SI joint injection in September
of 2012. (AR at 973.) This time, her pain improved completely for several hours, followed by
fifty-percent relief for one week, and then the pain returned to baseline. (AR at 970.) Dr. Pearl
refilled Plaintiff’s prescription for Gabapentin. (AR at 971.) Dr. Pearl noted in September of 2012
that, overall, Plaintiff’s pain had remained unchanged since she had begun treating her. (AR at
970.)
2. Aetna’s Medical and Vocational Reviews
As part of its evaluation to determine whether Plaintiff could perform “any reasonable
occupation,” Aetna obtained an independent medical file review in March of 2012 by Dr. Leonid
Topper. (AR at 1223.) In his report, Dr. Topper summarized the treatment records from Dr. Louie
and Dr. Pearl.10 (AR at 1224-27.) Dr. Topper attempted to contact Dr. Martin Gelman11 and Dr.

8

Spondylosis is “[a]nkylosis of the vertebra; often applied nonspecifically to any lesion of the
spine of a degenerative nature.” Stedman’s Medical Dictionary 1656 (26th ed. 1995). “Ankylosis”
is the “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony
union across the joint.” Id. at 93.
9
Myelopathy is a “[d]isorder of the spinal cord,” or “[a] disease of the myelopoietic tissues.”
Stedman’s Medical Dictionary 1166 (26th ed. 1995).
10
At this point in time, Plaintiff had been seeing Dr. Pearl for only one month. (AR at 994.)
11
Dr. Martin Gelman treated Plaintiff for gastrointestinal issues in December of 2010 and appears
to have been her primary care provider in 2012. (AR at 1044, 1503.)
11

Louie for peer-to-peer consultations but was unsuccessful. (AR at 1227.) After reviewing the
records, Dr. Topper made the following conclusions:
[F]rom a neurological point of view, there is no evidence of any
functional impairment. . . . [T]he medical records do not substantiate
any neurological diagnosis and [Plaintiff’s] back pain is likely to be
of mechanical origin. Considering the absence of a neurological
condition, there is no support for any impairment and there is no
need for restrictions or limitations. [Plaintiff] is not precluded from
working within the context of this any application review from
03/05/2012 to the present and forward, pending no further
complications in the future.
(AR at 1228.) When asked to estimate the physical demand level that Plaintiff could likely
perform, Dr. Topper opined:
From a neurological point of view, [Plaintiff] can work at any
physical demand level of work from 03/05/2012 through the present
and to 03/04/2013, provided she does not experience any
complications in the next year. I defer the mechanical pain aspect
of [Plaintiff’s] functionality to the appropriate specialty, such as
physical medicine and rehabilitation or orthopedics. . . .
The restrictions by Dr. Louie indicate the need to avoid lifting,
driving, pushing, pulling or standing. These restrictions are not
justified from a neurological point of view, but may or may not make
sense considering [Plaintiff’s] back pain. This determination is
deferred to the appropriate specialty.
(AR at 1228-29.)
Also in March of 2012, Aetna produced an occupational assessment, completed by
Stephanie Farland, in order to determine whether Plaintiff had transferrable skills for occupations
within a sedentary physical demand level. (AR at 404-05.) Farland noted that Plaintiff had three
years of experience as a registered nurse and eighteen years of experience as an emergency
dispatcher. (AR at 405.) Farland concluded that Plaintiff had transferrable skills for occupations
within a sedentary physical demand level, which also met the target wage amount for fulltime
work. (AR at 405.) Farland did not identify any specific occupations in this report.
12

Because Dr. Topper had been unable to conduct a peer-to-peer review with Dr. Louie,
Aetna sent Dr. Louie a peer review form and asked her to indicate whether she agreed with Dr.
Topper’s assessments. (AR at 1207.) Dr. Louie disagreed with Dr. Topper’s assessment that
Plaintiff could work at any physical demand level; Dr. Louie indicated that Plaintiff was incapable
of performing activities at the sedentary, light, and medium demand levels. (AR at 1207.) In her
comments, Dr. Louie explained: “I agree that there is no neurological deficit, which would prevent
her from working, but the degree of pain is the disabling factor. If you require a pain specialist’s
opinion to confirm, her pain doctor is [Dr. Pearl].” (AR at 1209.) Aetna attempted to contact Dr.
Pearl but was unsuccessful.
In March of 2012, Aetna conducted video surveillance of Plaintiff. (AR at 1232.) In three
days of surveillance, the Plaintiff was documented for only three minutes; no activity was depicted.
(AR at 1233.)
In May of 2012, Aetna requested a medical file review by Dr. Malcom McPhee, a physical
medicine and rehabilitation specialist, to assess the mechanical pain aspect of Plaintiff’s disability.
(AR at 411-12.) Dr. McPhee reviewed records from Dr. Singla and Dr. Pearl, and assessed results
from past imaging and surgeries. (AR at 1203-04.) Dr. McPhee also contacted Dr. Louie and
reported that “Dr. Louie agreed that it was reasonable that [Plaintiff] could perform a work day
with a sedentary level of activity which would be mostly sitting but occasional stand/walk and
change of position for a few minutes every hour.” (AR at 1205.) Dr. McPhee was unable to contact
Dr. Pearl. (AR at 1205.) Dr. McPhee indicated that, based on Plaintiff’s lack of neurological
abnormalities (except abnormal responses to sensory examinations), and the absence of nerve
impingement, spondylosis, or disc problems, her physical conditions would not preclude her from
performing any occupation that would allow mostly sitting, lifting ten pounds occasionally and

13

less than ten pounds frequently, with occasional standing and walking. (AR at 1205-06.) He
determined that a reasonable physical demand level for Plaintiff would be sedentary. (AR at 1206.)
Based on Dr. McPhee’s conclusions, Aetna requested a transferable skills analysis (TSA)
to determine whether Plaintiff was capable of performing “any reasonable occupation.” (AR at
1197.) The reviewer identified the following occupations for which Plaintiff was qualified and
which met the target wage amount for fulltime work ($18.41 per hour): “Dispatcher”; “Utilization
Review Coordinator”; “Hospital Admitting Clerk”; “Director Nurse’s Registry”; “Medical Social
Worker”; and “Nurse Case Manager.” (AR at 1199.)

The reviewer did not identify any

occupations meeting the target wage for part-time work ($36.82 per hour). (AR at 404.)
On May 25, 2012, Aetna notified Plaintiff that she was no longer eligible for LTD benefits.
(AR at 1823.) Aetna based its determination on medial documentation from Dr. “Singler,”12 Dr.
Solomon, Dr. Louie, Dr. Gelman, Dr. Hanmer,13 and Dr. Pearl, as well as Dr. Topper’s neurology
peer review and Dr. McPhee’s physical medicine & rehabilitation peer review. (AR at 1824.)
Aetna noted that Dr. Topper had found no evidence of impairment from a neurological
perspective. (AR at 1824.) Aetna acknowledged that Dr. Louie had explained that pain was
Plaintiff’s debilitating factor and had recommended contacting Dr. Pearl. (AR at 1825.) Because
Aetna was unable to reach Dr. Pearl, it ordered the review by Dr. McPhee, who concluded that
Plaintiff could perform sedentary work. (AR at 1825.) Aetna noted that Dr. Louie had “agreed it
would be reasonable for you to perform a work day with a sedentary demand level of activity
which would involve mostly sitting with occasional position changes.” (AR at 1825.) Aetna then

12

This appears to be a misspelling of Dr. Aneesh Singla’s name. Dr. Singla treated Plaintiff for
approximately two years beginning in 2009 and administered various injections in an effort to
reduce her pain. (AR at 1634-1668.)
13
Dr. Hanmer performed Plaintiff’s arthroscopic hip surgery in September of 2010 and her total
hip replacement in November of 2011. (AR at 887, 1256.)
14

explained that, based on Dr. McPhee’s determination, it had identified six sedentary occupations
for which Plaintiff was qualified. (AR at 1825.)
3. Post-Termination Medical History
In June of 2012, Plaintiff’s primary care provider, Dr. Gelman, referred her to Dr. Michael
A. Marciello for evaluation and management of her chronic pain. (AR at 1044.) Dr. Marciello
noted that Plaintiff suffered from persistent lower-back pain with right leg radiculopathy. (AR at
1044.) He noted her extensive treatment history, including spinal injections, radiofrequency, and
epidural and facet blocks. (AR at 1044.) He further noted that Plaintiff had undergone physical
therapy and it had been determined “some time ago that there was no other surgical indication.”
(AR at 1044.) Plaintiff was taking a variety of medications, including Valium, Fioricet, Neurontin,
Vicodin, and Tramadol. (AR at 1045.) Dr. Marciello evaluated Plaintiff’s neck, trunk, upper
extremities, back, legs, hips, and feet. (AR at 1045.) He noted that her lower back had “limitations
due to lumbar range of motion” and that she experienced “pain with both flexion and extension.”
(AR at 1045.) He also noted “apprehension to motion” and “[t]ightness and tenderness to simple
straight leg raise felt [at] the lower back.” (AR at 1045.) His overall impressions from this exam
were: “Chronic back pain syndrome with question of initial injury due to SI joint and strain
superimposed upon the right lumbar radiculopathy. Secondary myofascial pain, deconditioning,
and perhaps some increased tenderness following multiple spinal procedures.” (AR at 1045.) For
possible treatment plans, he suggested adjustments to her chronic medications and local trigger
point injections. (AR at 1045.)
Dr. Marciello saw Plaintiff again in July of 2012. (AR at 1042.) She continued to report
back pain extending into her right lower leg and foot, with neck pain as well, and some occasional
dizziness and headaches. (AR at 1042.) Plaintiff reported having had a recent electromyography

15

workup, which identified no active radiculopathy and no root impairment. (AR at 1043.) She also
reported new pain in her left thigh, as well as some stomach pain. (AR at 1043.) Regarding
medication, Dr. Marciello noted that Plaintiff had discontinued the Vicodin and was trying to use
Tramadol infrequently, because she wanted to reduce her overall medication needs and hoped “to
try to get back to some work.” (AR at 1043.) Dr. Marciello conducted a physical examination,
finding, among other things, decreased lumbar range of motion, tightness in the neck, and
tenderness in the back, buttocks, and hips. (AR at 1043.) His impressions were “Multifactorial
chronic discogenic pain with cervical spondylosis, myofascial pain associated with SI joint
strain/sprain.” (AR at 1043.) Regarding treatment, Dr. Marciello noted that Plaintiff wanted “to
try to avoid medications,” and he prescribed additional spinal injections. (AR at 1043.) He gave
her Vicodin to be used when needed. (AR at 1043.) Dr. Marciello also noted: “Do not suspect that
she will be able to return to work any time quickly. Try to indicate to her that it would also be in
her best interest to look for work only once she had settled down some acuity of pain.” (AR at
1043.)
After undergoing additional SI joint injections, Plaintiff returned to Dr. Marciello in
August of 2012. (AR at 1040.) Despite the injections, she still reported pain in her lower back,
buttocks, and right leg, typically worse with activity. (AR at 1040.) She also continued to report
increased sensitivity in her left thigh. (AR at 1040.) She was limited to the time she could sit and
had difficulty putting her head down, lifting, carrying, and climbing stairs. (Art at 1040.) Dr.
Marciello’s overall impression was “Discogenic[14] back pain. SI joint pain. Chronic neck cervical
spondylosis and myofascial pain.” (AR at 1040.) Dr. Marciello discussed disability status with

14

Discogenic denotes “a disorder originating in or from an intervertebral disk.” Stedman’s Medical
Dictionary 491 (26th ed. 1995).
16

Plaintiff, noting that it would be “difficult for her to do anything at this time with prolonged sitting
or standing.” (AR at 1040.)
Plaintiff visited Dr. Marciello again in November of 2012, noting that the SI joint injections
helped only briefly and did not have a long-lasting impact. (AR at 647.) Plaintiff also reported
increased neck pain, and Dr. Marciello ordered a cervical MRI. (AR at 647.) She was taking
Vicodin again, two-to-four tablets per day. (AR at 647.) Dr. Marciello examined her neck and
arms, finding adequate range of motion with some tightness. (AR at 647.)
Dr. Marciello saw Plaintiff again in January of 2013, after she had a bout of an illness that
was thought to be meningitis, which required hospitalization. (AR at 645, 705.) Dr. Marciello
once again noted that Plaintiff was “quite limited to her right lower back. She tries to use her
Vicodin to help out with starting the day and getting to her errands and activities. . . . She has had
some increased numbness and paresthesias to the right arm and left leg with increased activity and
will modify according to her level of comfort. Typically she was taking Vicodin twice per day
and occasionally and [sic] third tablet.” (AR at 645.) Regarding Plaintiff’s pain, Dr. Marciello
described that “sitting is most painful compared to standing. Any prolonged activity will soon be
problematic.” (AR at 645.) Dr. Marciello also conducted a physical examination, in which he
noted tenderness, increased pain with single leg support on the right, pain with lumbar flexion and
extension, decreased neck rotation to the left, and nonfocal neurology in the arms. (AR at 645.)
Dr. Marciello also reviewed the recent cervical MRI, which showed “mild straightening of the
lordosis[15] from C5-C7,” “small disc bulging C5-6 and C6-7 with mild left sided foraminal

15

Lordosis is “[a]n abnormal extension deformity; antero-posterior curvature of the spine,
generally lumbar with the convexity looking anteriorly.” Stedman’s Medical Dictionary 996 (26th
ed. 1995).
17

narrowing,” “L3-4 and L4-5 facet arthropathy[16] with no central stenosis,” “[history] of bulging
and annular tear L4-5 to the right,” and “facet arthropathy seen at L5-S1.” (AR at 645.) Dr.
Marciello’s overall impressions as of January of 2013 were: “Chronic back pain secondary to SI
joint dysfunction, SI joint sprain/strain, discogenic and facet mechanical lower back pain. Cervical
spondylosis with intermittent nerve root irritation to the left.” (AR at 645.) Plaintiff remained in
daily chronic pain, and Dr. Marciello suggested increasing the Vicodin and adding a long-acting
opioid at night. (AR at 645.)
4. The Appeal Process
In November of 2012, Plaintiff appealed Aetna’s termination of her benefits. (AR at 880.)
She later submitted medical records and narratives from Active Physical Therapy, Bay State
Physical Therapy, Dr. Solomon, Dr. Pearl, Dr. Marciello, Dr. Michael Donovan,17 and Dr.
Xiaojing Tao,18 as well as affidavits by Plaintiff and her husband. She also submitted a vocational
assessment report completed by James T. Parker, CVRP, CRC, in February of 2013.
In a letter dated February 13, 2013, Dr. Louie described Plaintiff’s condition as of August
of 2012, which was the last time she had treated Plaintiff. (AR at 633.) Dr. Louie noted Plaintiff
had reported lower back pain, which radiated down her right leg and foot, as well as “burning
paresthesias in the lateral aspect of the foot, consistent with the right S1 dermatome.” (AR at 633.)
Dr. Louie noted that Plaintiff had “improved minimally with nerve cauterization, Lidoderm
patches, Gabapentin, and a TENS unit, but her symptoms are still debilitating.” (AR at 633.) Dr.
Louie further noted that “recent trigger point injections have greatly helped her pain,”

16

Arthropathy is “[a]ny disease affecting a joint.” Stedman’s Medical Dictionary 150 (26th ed.
1995).
17
Dr. Donovan was Plaintiff’s urologist. (AR at 785, 1054, 1060, 1145.)
18
Dr. Tao was Plaintiff’s gynecologist. (AR at 1057, 1062, 1065.)
18

that Plaintiff had eliminated some medications, and that her pain “had become more tolerable on
the [G]abapentin and Vicodin without excessive sedation.” (AR at 633.) Regarding potential
employment, Dr. Louie wrote that Plaintiff should not lift anything greater than ten pounds, and
that she could not stand for more than twenty minutes at a time. (AR at 633.) Dr. Louie further
noted that, while her “right S1 nerve root irritation would not prohibit her from obtaining a
sedentary job, . . . she has multiple other pain issues, which would also make a sedentary job
difficult.” (AR at 633.) Dr. Louie deferred to Plaintiff’s pain specialist and psychiatrist “to assess
her disability from a pain perspective.” (AR at 633.)
Dr. Marciello wrote a letter dated January 2, 2013, as the physician who had been medically
managing her persistent pain since 2012. (AR at 622.) He opined:
It is my medical opinion, that [Plaintiff] is totally and permanently
impaired and therefore disabled from all gainful employment. It is
my medical opinion that she not only cannot carry out the duties of
her training of an ICU nurse, but in my opinion she is unable to carry
out the duties of any sedentary office position.
(AR at 622.) He noted that, although her “back and leg pains might be determined to be nonneurological,” the disabling diagnosis was “persistence of pain across the muscles of the buttocks
and lower back, as well as having a SI joint sprain/strain from the first accident and probably
reoccurring in the second accident,” and “findings of a myofascial referred pain into the right leg.”
(AR at 622-23.)
Dr. Marciello agreed with Dr. Topper that “there is no objective neurological injury,” but
“in relation to pain management and pain syndrome, there is not only referred right leg pain, but
also myofascial referred musculoskeletal pain that results in pain with prolonged standing,
prolonged sitting, bending, stooping, or performing any repetitive activity requiring movement
across the lower back and pelvis.” (AR at 623.) He further noted that, “[b]ecause of the numerous

19

procedures, and duration of time since her injury, she has also significantly deconditioned and has
become weak in these muscle areas which will preclude her from improving substantially.” (AR
at 623.) Dr. Marciello also described the impact of Plaintiff’s hip and gynecological surgeries on
her ability to stay in a seated position and noted that repetitive use of her arm would likely
aggravate her shoulders and neck. (AR at 623.)
Additionally, Dr. Marciello addressed the impact of Plaintiff’s medications on her ability
to work:
[I]n order to accommodate the daily and persistent pain of her pelvis,
lower back, right hip and groin, and right leg, [Plaintiff] requires
daily medications including neuropathic medicines such as
[G]abapentin which is likely to result in decreased concentration,
decreased memory, and sedation. Furthermore, the pain results in
her frequently requiring opioid pain medications including
[T]ramadol and Vicodin which again may impair her judgment and
functional tasks. Therefore, in my opinion, if she had to carry out
full-time work, implying 8 hour work day, it is more likely than not
that her pain levels will increase causing her to use more
medications, and possibly impairing her function and mental status
capacity even further.
(AR at 623.) Dr. Marciello further noted that the nature of Plaintiff’s musculoskeletal pain and
weakness resulted in frequent flares of pain, which would cause her attendance in a workplace to
be unreliable. (AR at 623.) In conclusion, Dr. Marciello explained:
[Plaintiff] is at a medical end point. She has been treated by a
number of medical providers. She has undergone numerous
procedures, trials of medications, physical therapy, an extensive
period of relative rest, all of which have been unsuccessful in
managing her pain or improving her function. It is, therefore, in my
opinion, that [Plaintiff] remains totally disabled from all gainful
employment including sedentary work.
(AR at 624.)
As part of her appeal, Plaintiff also submitted a vocational assessment conducted by James
T. Parker, CVRP, CRC, in February of 2013. (AR at 634-42.) Parker reviewed Plaintiff’s medical
20

records, with special emphasis on her most recent treating physicians, Drs. Louie, Pearl, and
Marciello. (AR at 635-37.) Parker opined that Plaintiff was not capable of performing any work,
part-time or fulltime, at any exertion level. (AR at 640.) He noted Plaintiff’s documented inability
to stand or sit for long periods of time and found that the record established that Plaintiff was
unable to stand for two hours in an eight-hour work day, which is the minimum amount of standing
required for sedentary work. (AR at 640.) He also noted that because she required the assistance
of a cane, she could not perform tasks with both of her hands while in a standing or walking
position, a skill that is necessary to conduct sedentary work at an acceptable pace. (AR at 640.)
Parker further noted, the record showed that sitting was the most difficult position for Plaintiff to
maintain, and sedentary work requires the ability to sit for six hours in an eight-hour workday.
(AR at 641.)
Parker also noted Plaintiff’s use of pain medications, with their side effects of sedation and
decreased ability to concentrate, and he mentioned Dr. Marciello’s opinion that if Plaintiff were to
return to work she would need to increase her usage of these medications, which would in turn
decrease her mental capacity. (AR at 641.) Parker noted Plaintiff’s substantial impairments in
performing activities of daily living, which required her to self-pace and limit the tasks performed
due to early fatigue and pain. (AR at 641.) Parker noted that “the inability to sustain routine nondemanding household tasks is a strong indicator of the inability to sustain any work on a regular
and consistent basis.” (AR at 641.) Parker concluded, “[b]ased on the limitations established by
[Plaintiff’s] physicians, she is totally disabled from all employment,” and she would remain so for
the foreseeable future. (AR at 642.)
Plaintiff also submitted an affidavit with her appeal, in which she once again described
how her life had been affected by her injuries. (AR at 1161-64.) She described continuous,

21

moderate-to-severe pain in her lower back, radiating down her right leg, with numbness in her
right foot. (AR at 1163.) She explained that her gait is affected and she cannot “not stand or sit in
one place for an extended period of time without great discomfort and increasing pain.” (AR at
1163.) Even on good days, she has difficulty getting through daily tasks and errands, and her
nights are usually spent in a recliner with ice packs on her back, leg, and foot. (AR at 1163.) She
takes Vicodin or Tylenol as needed, to get through her errands or to get comfortable at the end of
the day. (AR at 1164.) On bad days, she is unable to do errands and alternates between walking,
sitting, and laying on her side. (AR at 1164.) On these days she takes Vicodin in the morning, and
spends the evening with ice packs from her lower back all the way down her right leg, feeling like
her leg “is in a vice and [her] tailbone feels like it is coming through [her] bottom.” (AR at 1164.)
She experiences pain when sitting for extended periods of time. (AR at 1164.) Between the
discomfort and the frequent need to readjust or stand up, her ability to concentrate is severely
affected. (AR at 1164.) She continues to take daily doses of Gabapentin, in addition to Vicodin
and Tylenol, and her medications affect her ability to focus and concentrate. (AR at 1164.)
As part of its internal appeal review process, in June of 2013 Aetna obtained an independent
medical file review by Dr. Frank Polanco, a specialist in Occupational Medicine and Pain
Medicine. (AR at 602-09.) After reviewing Plaintiff’s medical records, Dr. Polanco concluded
that Plaintiff was capable of performing work at a sedentary level. (AR at 606.) Dr. Polanco found
that although Plaintiff was limited by her chronic lower-back and hip conditions, there were no
limitations on her upper or lower extremities. (AR at 607.) Dr. Polanco entirely rejected Dr.
Marciello’s opinion because Dr. Marciello did “not provide any clinical findings to support his
opinions, no measures of strength, range of motion, or endurance or movement capacity.” (AR at
607.)

22

Dr. Polanco also found “no findings in the clinical reports that [Plaintiff] is cognitively
affected by her chronic medication use.” (AR at 608.) He noted generally that “[c]hronic pain
patients typically adjust and develop tolerance to the use of the chronic opioids and other
medications.” (AR at 608.) He found “[n]o adverse medication side effects affecting functionality
reflected in the medical records.” (AR at 608.) Regarding Parker’s vocational opinion that Plaintiff
was totally disabled, Dr. Polanco disagreed on the ground that Parker’s opinion was based on Dr.
Marciello’s opinion, which was not supported by clinical findings. (AR at 608.)
Dr. Polanco initially found that Plaintiff was limited to lifting ten pounds or less, that she
could walk, stand, or sit for no more than one third of the day (approximately 2.6 hours out of an
eight-hour day), and that she had to be able to change postures every forty-five minutes. (AR at
606.) After he issued his report, upon Aetna’s request for clarification, he submitted the following
addendum, altering his assessment of Plaintiff’s functionality: “[Plaintiff] would be capable of
sitting, standing, and/or walking for no more than 45 minutes at a time (each). This refers to fulltime 8 hour day work capacity. Her deconditioning does not prevent full-time work, it contributes
to her decreased functional capacity. It is only reversible with activity.”19 (AR at 609.)
In a letter dated June 24, 2013, Aetna upheld its decision to terminate Plaintiff’s benefits.
(AR at 1829.) Aetna noted that Plaintiff is “functionally limited by various medical conditions,”
primarily “by her low back condition, total hip replacement, neck condition and general
deconditioning.” (AR at 1830.) Aetna found that these conditions limit Plaintiff’s capacity to
kneel, crawl, lift, walk, stand, and climb. (AR at 1831.) Notably, Aetna did not include sitting in
this list. Aetna found that these restrictions were supported by “clinical findings of soft tissue

19

This addendum eliminated the limitation of sitting and standing to one-third of the day; this
limitation would not have been consistent with the capacity to perform sedentary work, which
requires the ability to sit for six hours out of an eight-hour day. (AR at 641.)
23

findings in the neck and back, with limitation of motion primarily in her back.” (AR at 1831.)
Aetna also noted “diagnostic findings of degenerative spine disease, operative and clinical
reports.” (AR 1831.) Aetna further found that, because Plaintiff is neurologically intact and her
motor strength is intact, she has no limitations in her upper or lower extremities. (AR at 1831.)
Aetna concluded that Plaintiff can sit, stand, and/or walk for no more than forty-five minutes at a
time (each) in an eight-hour workday, and that her deconditioning does not preclude her from
working. (AR at 1831.) The language used in Aetna’s final termination letter mirrors the findings
in Dr. Polanco’s report.
In response to Aetna’s final decision, Plaintiff initiated the instant lawsuit against Aetna
and the Plan (collectively, Defendants), seeking judicial review pursuant to 29 U.S.C. § 1132(e).
Plaintiff seeks reinstatement of her LTD benefits, compensation for unpaid benefits beginning
May 25, 2012, and attorneys’ fees and costs. On June 12, 2015, the parties filed cross-motions for
summary judgment.
Discussion
1. Standard of Review
“Cases that concern benefit determinations under an ERISA plan . . . are not typical cases
when it comes to summary judgment.” D & H Therapy Assoc., LLC v. Boston Mut. Life Ins. Co.,
640 F.3d 27, 34 (1st Cir. 2011). A motion for summary judgment is merely the procedural vehicle
by which the denial of a benefits claim is tested under ERISA. See Orndorf v. Paul Revere Life
Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005). “[T]he district court sits more as an appellate tribunal
than as a trial court. It does not take evidence, but, rather, evaluates the reasonableness of an
administrative determination in light of the record compiled before the plan fiduciary.” Leahy v.
Raytheon, Co., 315 F.3d 11, 18 (1st Cir. 2002). Accordingly, in such cases “the non-moving party

24

is not entitled to the usual inferences in its favor.” D & H Therapy Assoc., LLC, 640 F.3d at 34
(quoting Cusson v. Liberty Life Assurance Co. of Boston, 592 F.3d 215, 224 (1st Cir. 2010))
(citation omitted).
“When an ERISA plan gives an administrator discretionary authority to determine
eligibility for benefits or construe the plan’s terms, the district court must uphold the
administrator’s decision unless it is ‘arbitrary, capricious, or an abuse of discretion.’” Id. (quoting
Cusson, 592 F.3d at 224) (citation omitted). “[F]or purposes of reviewing benefit determinations
by an ERISA plan administrator, the arbitrary and capricious standard is functionally equivalent
to the abuse of discretion standard.” Id. at 34 n.5 (quoting Wright v. R.R. Donnelley & Sons Grp.
Benefits Plan, 402 F.3d 67, 74 n.3 (1st Cir. 2005)). Thus, the First Circuit Court of Appeals has
elected to describe this standard simply as “abuse of discretion” review. Id. Here, all parties agree
that Aetna had discretionary authority under the terms of the Plan. Therefore, the abuse of
discretion standard applies to this case.
Under the applicable standard of review, the decision of the plan administrator will be
upheld if it “is plausible in light of the record as a whole,” meaning, “supported by substantial
evidence in the record.” Leahy, 315 F.3d at 17 (internal citations omitted). “Substantial evidence
. . . means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not
disappear merely by reason of contradictory evidence. . . . [The] question [is] not which side [the
court] believe[s] is right, but whether [the administrator] had substantial evidentiary grounds for a
reasonable decision in its favor.” Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.
1998) (citations omitted). “In making this determination, we look to the record as a whole.” Cook
v. Liberty Life Assur. Co. of Boston, 320 F.3d 11, 19 (1st Cir. 2003). “It is the responsibility of the
[a]dministrator [and not the court] to weigh conflicting evidence.” Vlass v. Raytheon Employees

25

Disability Trust, 244 F.3d 27, 32 (1st Cir. 2001). However, an administrator’s faulty reasoning
and mischaracterization of the evidence will not survive “arbitrary and capricious” review simply
because isolated evidence in the record might support the administrator’s decision. Buffonge v.
Prudential Ins. Co. of America, 426 F.3d 20, 30-31 (1st Cir. 2005).
2. The Parties’ Arguments
Plaintiff makes several related arguments in support of her motion for summary judgment.
First, she argues that Aetna’s vocational review was flawed and insufficient. She asserts that the
initial TSA, conducted in May of 2012, relied solely on the restrictions imposed by Dr. McPhee,
while ignoring the medical records from Plaintiff’s treatment providers. Plaintiff argues that Aetna
failed to evaluate whether she was able to perform the material duties of the sedentary occupations
it identified. Plaintiff further notes that Aetna did not conduct a comprehensive vocational analysis
after the submission of Plaintiff’s appeal, and that Aetna ignored the vocational review conducted
by Parker.
Next, Plaintiff argues that Aetna was unfairly selective in its review of the medical
evidence and ignored evidence of her chronic pain. Aetna’s decision was purportedly based on a
lack of clinical findings to explain Plaintiff’s symptoms; Plaintiff asserts that pain is always selfreported, but this does not mean that it can be ignored. Plaintiff further argues that Aetna ignored
the evidence of her functional limitations, as explained in Parker’s vocational assessment. Parker
was the only vocational expert throughout the claims process who reviewed Plaintiff’s medical
records.

Aetna’s vocational review, in comparison, was based entirely on Dr. McPhee’s

conclusion that Plaintiff could perform sedentary work. Plaintiff also asserts that Aetna erred by
relying on Dr. Polanco’s generalized assessments of how chronic pain patients typically adjust to
pain medication, while ignoring the effects of such medications on Plaintiff specifically. In

26

addition, Plaintiff asserts that Dr. Polanco failed to recognize the potential risk of harm to her upper
extremities.
Plaintiff also argues that Aetna unreasonably evaluated her medical conditions in isolation
from one another and failed to consider the constellation of symptoms from all of her various
ailments. She claims that her disability stems from the intersection of the symptoms of her back
condition, hip injuries, upper body injuries, gynecological issues, and the respective treatments for
each of those conditions. Aetna, she contends, relied on Dr. Polanco’s assessment, which focused
solely on Plaintiff’s lower-back problems and ignored the opinions from her treating physicians
regarding her other conditions. Plaintiff also argues that Aetna erred by ignoring the surveillance
video, which showed three days of inactivity.
Finally, Plaintiff argues that Aetna had a structural conflict of interest in the review of
Plaintiff’s claim and that this conflict should be factored into this Court’s review of Aetna’s
decision. Plaintiff asserts that Aetna’s conflict of interest manifested itself in its failure to provide
her with a full and fair review of her claim.
In response, Defendants claim that Aetna did not ignore Plaintiff’s subjective complaints
of pain but instead sought the opinions of multiple medical professionals and looked at medical
evidence in order to determine whether these complaints correlated with the medical records.
Defendants claim that no medical opinions or information were ignored. In support, they outline
the process undertaken in the course of reviewing Plaintiff’s claim, noting that the reviewing
physicians were unable to contact all of Plaintiff’s treating physicians for peer-to-peer
consultations. Aetna asserts that its decision to terminate Plaintiff’s benefits was based on the
record evidence, including: records submitted by Plaintiff; the vocational assessment; the medical
reviews; Dr. Louie’s agreement that Plaintiff was capable of sedentary work; and the lack of any

27

definitive evidence or objections by Plaintiff’s other treating physicians. Defendants also argue
that Dr. Polanco reviewed the surveillance video and that the findings of this video are consistent
with the determination that Plaintiff should be limited to sedentary work. Defendants assert that
there is no structural conflict of interest in this case because Aetna is the claims administrator and
Children’s Hospital Boston is the plan administrator.
3. Analysis
Although the standard of review of Aetna’s decision is deferential, “there is a sharp
distinction between deferential review and no review at all.” Colby v. Union Sec. Ins. Co. & Mgmt.
Co. for Merrimack Anesthesia Associates Long Term Disability Plan, 705 F.3d 58, 62 (1st Cir.
2013). ERISA mandates that “every employee benefit plan shall . . . afford a reasonable
opportunity to any participant whose claim for benefits has been denied for a full and fair review
by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133. The
phrase “full and fair review” has been interpreted “to protect a plan participant from arbitrary or
unprincipled decision-making.” Buffonge, 426 F.3d at 30 (quoting Grossmuller v. Int'l Union,
United Auto., Aerospace & Agr. Implement Workers of Am., UAW, Local 813, 715 F.2d 853, 857
(3d Cir. 1983)). After thoroughly examining the voluminous administrative record, I find that
Aetna abused its discretion and did not base its decision on substantial evidence. Aetna’s
determination that Plaintiff can function in a fulltime capacity as a dispatcher, a hospital admitting
clerk, or a medical social worker—to use a few of Aetna’s examples—is simply not plausible, nor
supported by the record.
This is not a case in which the reviewing doctors agree on the claimant’s diagnosis but
disagree on the effect of that diagnosis on the claimant’s ability to work. See Cusson, 592 F.3d at
227. Nor is this a case in which there was conflicting medical evidence regarding the extent of the

28

claimant’s injuries. See Leahy, 315 F.3d at 19. This is also not a case in which the claimant had
failed to comply with assessments or was thought to have exaggerated her reported symptoms. See
Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004). Rather, this is a case in which
the claims administrator failed to provide reasoned support for its conclusions and ignored credible
evidence of disability, choosing instead to rely selectively on discrete findings, which appear
reasonable when sewn together to form a termination letter, but are highly questionable when
viewed in the context of the entire record.
Plaintiff’s medical records reveal that, from the date of her second car accident in 2009
until the final termination of her benefits in 2013, she suffered consistent, intractable pain in her
lower back, buttocks, and right leg. As explained in detail above, Plaintiff saw numerous doctors
for this pain, including Dr. Solomon, Dr. Singla, Dr. Gelman, Dr. Louie, Dr. Pearl, and Dr.
Marciello. Through these physicians she faithfully pursued various treatments, including physical
therapy, injections, surgery, and medication. Despite these treatments, there is no evidence in the
medical records that her pain improved significantly for more than a few days or a week at a time.
I acknowledge that I “have no warrant to require administrators automatically to accord
special weight to the opinions of a claimant’s physician.” Buffonge, 426 F.3d at 27 (quoting Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)). However, I am also aware that
administrators “‘may not arbitrarily refuse to credit’ the opinion of a claimant’s treating
physician.” Ortega-Candelaria v. Johnson & Johnson, 755 F.3d 13, 25 (1st Cir. 2014) (citing
Black & Decker, 538 U.S. at 834 (emphasis added)). Fundamentally, “[a]n administrator’s
decision must be ‘reasoned’ to survive ‘arbitrary and capricious’ review.” Buffonge, 426 F.3d at
30 (quoting Gannon, 360 F.3d at 213). In this instance, the treating physicians’ records formed a
unified basis for Plaintiff’s claimed disability, which consisted of chronic, debilitating pain,

29

stemming from a conglomeration of potential sources, beginning after the first motor-vehicle
accident in 2008 and worsening after the second accident in 2009. Instead of confronting these
records, Aetna has pieced together snippets of opinions from selected reports, in order to create an
illusion of competing medical evidence.
A. Aetna’s Independent File Review Reports
Although Aetna claims to have reviewed the entire volume of medical records in this case,
its finding of a lack of medical evidence to support Plaintiff’s disability relied mainly on the reports
of Dr. Topper, Dr. McPhee, and Dr. Polanco. These reports are the only parts of the record that
indicate that the Plaintiff is able to perform fulltime sedentary work. I shall address each of these
reports in turn and discuss why, in the context of this record, they do not constitute “substantial
evidentiary grounds for a reasonable decision” to deny Plaintiff’s LTD benefits. See OrtegaCandelaria, 755 F.3d at 20.
i.

Dr. Topper’s Report
First, to the extent that Aetna relied on Dr. Topper’s report to contradict the evidence of

Plaintiff’s chronic pain, this reliance was unreasonable. Dr. Topper’s report makes clear that he
approached Plaintiff’s limitations from a neurological perspective only, and after reviewing the
records he found no neurological conditions that would cause a functional impairment. He
specifically noted, however, that other restrictions may be necessary from a pain perspective, and
he deferred the “mechanical pain aspect” of Plaintiff’s condition to the appropriate specialty. (AR
at 1228-29.) Thus, Dr. Topper did not find that Plaintiff could function despite her pain; he made
no findings regarding the impact of Plaintiff’s pain on her ability to function.
Unlike Drs. McPhee and Polanco, Dr. Topper’s report is not inconsistent with the other
medical records. The records from Dr. Louie, Dr. Solomon, Dr. Pearl, and Dr. Marciello show

30

that the cause of Plaintiff’s chronic lower-back and leg pain has remained incompletely explained,
despite numerous diagnostic procedures and many attempted treatments. Indeed, the inability of
any of these physicians to precisely pinpoint the cause of Plaintiff’s pain may be one reason why
she has not yet found an effective treatment. To complicate matters further, Plaintiff has an
extensive and complicated medical history, including endometriosis, diverticulitis, colitis, asthma,
hypertension, osteoarthritis, osteopenia, small bowel obstructions, migraines, lysis of adhesions,
appendectomy, cholecystectomy, and nephrolithiasis. 20 (AR at 994, 1518.)
Plaintiff’s pain has been attributed to various potential causes and has been described in
divers ways throughout the medial records, including: “S1 radiculopathy”; “probable lumbosacral
radiculopathy”; “sciatica and lumbago”; “muscle spasms and lumbar radiculopathy”;
“lumbosacral spondylosis without myelopathy”; “right leg radiculopathy”; “Discogenic back
pain”; “SI joint pain”; “neck cervical spondylosis”; “myofascial referred musculoskeletal pain”;
“mild straightening of the lordosis from C5-C7”; “small disc bulging C5-6 and C6-7 with mild left
sided foraminal narrowing”; “L3-4 and L4-5 facet arthropathy with no central stenosis”; “facet
arthropathy seen at L5-S1”; “SI joint dysfunction”; “SI joint sprain/strain”; “discogenic and facet
mechanical lower back pain”; “Cervical spondylosis with intermittent nerve root irritation to the
left”; “myofascial referred pain into the right leg”; and “L5-S2 right small disc protrusion.” (AR
622-23, 645, 981, 992, 995, 996, 1040, 1044, 1336, 1344, 1634-1668.)
The records show that these diagnoses have evolved over the years, depending on the
treatment modality being pursued at any particular time. Most of the diagnoses are mechanical in
nature; Dr. Louie and Dr. Marciello each confirmed during the appeal process that Plaintiff had

20

As of February of 2012, Plaintiff had undergone a total of thirteen abdominal surgeries. (AR at
994.)
31

not been diagnosed with any certain neurological condition. (AR at 623, 1207). However, the fact
that Plaintiff’s pain remains incompletely explained—and is not decidedly neurological—does not
render her symptoms any less severe. The record reflects that she has suffered from consistent,
chronic pain since at least 2009, which limits her ability to sit, stand, and ambulate. Dr. Topper’s
report simply does not address this issue.
ii.

Dr. McPhee’s Report
Second, it was not reasonable for Aetna to rely on Dr. McPhee’s characterization of Dr.

Louie’s opinion in lieu of Dr. Louie’s own self-reported records. Despite the fact that Dr. McPhee
was brought into this case as a rehabilitation specialist, to fill the void left by Plaintiff’s
unresponsive treating physicians, Dr. McPhee’s report does not describe Plaintiff’s history of
persistent chronic pain. Instead, Dr. McPhee relied on the lack of a concretely diagnosed
neurological abnormality, nerve impingement, spondylosis, or disc problem, in order to reach the
conclusion that Plaintiff could perform sedentary work. Although Dr. McPhee reviewed Dr.
Louie’s records, he did not consider them particularly relevant. Instead, he relied on a phone call
to Dr. Louie, during which Dr. Louie apparently agreed that Plaintiff could “perform a work day
with a sedentary level of activity.” (AR at 1205.) This statement, taken in isolation, was used
twice in Aetna’s initial termination letter as a rationale for denying Plaintiff’s LTD benefits. (AR
at 1825.)
It is unclear from this one totem-pole hearsay statement, as reported by Dr. McPhee,
whether Dr. Louie actually agreed with Dr. McPhee’s assessment of Plaintiff’s condition. Dr.
McPhee’s wording does not specify whether Dr. Louie agreed that Plaintiff could work
permanently in a fulltime sedentary job, whether she could work part-time, or for one day only;
or, for that matter, whether this ability was based on a neurological perspective or a mechanical

32

pain perspective. Indeed, just three months prior to Dr. McPhee’s report, Dr. Louie had completed
an APS and Capabilities and Limitations Worksheet in which she had opined that Plaintiff could
not work fulltime in a sedentary capacity. I find that it was arbitrary for Aetna to rely on one
second-hand statement, when it had at its fingertips the entire record of Dr. Louie’s treatment of
Plaintiff. Aetna’s willingness to prioritize Dr. McPhee’s unspecific characterization of Dr. Louie’s
opinion over direct evidence produced by Dr. Louie speaks to the overall fairness of Aetna’s
decision-making process.21 See Buffonge, 426 F.3d at 30.
Dr. McPhee’s conclusions are also questionable in light of the other records upon which
he supposedly based his opinion. Dr. McPhee’s list of relevant medical records consists mainly
of notes from Dr. Singla’s treatment of Plaintiff from March of 2009 until December of 2010.
During this period, spanning nearly two years, Dr. Singla administered numerous injections to
treat Plaintiff’s pain and listed her primary diagnosis as “L5-S2 right small disc protrusion,” with
various secondary diagnoses. (AR 1634-1668.) Although the source of Plaintiff’s pain was never
fully identified, its presence was constant and persistent. Dr. Singla consistently reported, from
March of 2009 until December of 2010, that the Plaintiff’s lower-back and leg pain was significant,
and was worsened by sustained sitting and standing. (AR 1634, 1636, 1638, 1640, 1642, 1644,
1646, 1648, 1650, 1652, 1654, 1656, 1658, 1660, 1663, 1665, 1668.) Significantly, Dr. McPhee
acknowledged these records but did not explain why he discredited them or how, in his opinion,

21

The unorganized state of the voluminous administrative record submitted to this Court also sheds
light on the level of care given by Aetna in undertaking the review of Plaintiff’s claim. The record
is more than 1800 pages in length and was submitted to this court with no appendix, table of
contents, index, or other organizational key. The documents are bound into two volumes but are
arranged in no discernable order within these volumes. The fourteen exhibits that Plaintiff
submitted during the internal appeals process are dispersed haphazardly throughout the record, and
many are unlabeled. Some documents are duplicated many times throughout the two volumes,
while others appear just once. It is difficult to imagine how one could thoroughly review each of
these important records and then compile them in such a disorganized manner.
33

Plaintiff would be able to maintain fulltime sedentary work despite her documented, consistent
pain.
iii.

Dr. Polanco’s Report
Third, Aetna’s final determination letter makes clear that Aetna relied heavily on Dr.

Polanco’s report. Aetna’s specific findings regarding the number of hours during which Plaintiff
is capable of sitting and standing in a day, as well as the note regarding her deconditioning, seem
to be cut and pasted from Dr. Polanco’s findings. (AR at 609, 1831.) Dr. Polanco’s opinion,
however, was not reliable because he arbitrarily dismissed the findings by Dr. Marciello and the
vocational assessment conducted by Parker.
Dr. Polanco rejected Dr. Marciello’s findings for the following reasons: “Dr. Marciello
does not provide any clinical findings to support his opinions, no measures of strength, range of
motion or endurance or movement capacity. Therefore, these restrictions are not supported.” (AR
at 607.) At first blush, this statement may appear to provide a sound reason for Dr. Polanco’s
decision to discount the findings of Dr. Marciello. When investigated in the context of the medical
records, however, it becomes clear that the statement is not credible.
To the extent that Dr. Polanco’s statement was intended to mean that Dr. Marciello had not
physically examined Plaintiff, this would be contrary to the medical records. Each time Dr.
Marciello saw Plaintiff as a patient, he examined her and reported the various results of these
examinations in his notes, which included tenderness, tightness, and limited range of movement
in her back, legs, hips, neck, and arms. Alternatively, to the extent that this statement by Dr.
Polanco was meant to explain that Plaintiff’s body could physically maintain a seated posture for
forty-five minutes out of every hour, this finding—like Dr. Topper’s findings—ignores the actual
issue in this case, which is Plaintiff’s pain and discomfort when maintaining a seated or standing

34

position. However Dr. Polanco’s statement is construed, it does not provide a sound rationale for
the wholesale rejection of the records and opinions of one of Plaintiff’s primary and most recent
treating physicians.
Moreover, Dr. Polanco’s finding regarding the “lack of clinical evidence” underlying
Dr. Marciello’s opinion appears to have been crucially important in Aetna’s decision-making
process. Not only did Aetna use this finding to discredit Dr. Marciello’s records—including his
opinion that Plaintiff could not perform fulltime sedentary work due to her chronic pain—but the
finding also appears to have been used as the sole basis for discounting Parker’s vocational
assessment.
Aetna’s final termination letter mentions Parker’s report but does not explain why Parker’s
findings were rejected. Dr. Polanco’s report, however, addressed Parker’s assessment and rejected
it because Parker had allegedly based his opinions primarily on Dr. Marciello’s findings, which,
according to Dr. Polanco, were not supported by clinical evidence.

As explained above,

Dr. Marciello’s report was based on his clinical findings, especially with regard to the reports of
the extent of Plaintiff’s chronic pain. Additionally, in producing his report—which was the only
vocational assessment conducted on the basis of medical records—Parker reviewed all of
Plaintiff’s records, placing special emphasis on those from Drs. Louie, Pearl, and Marciello,
because they were her treating physicians. It was not reasonable, on these grounds, for Aetna to
rely on Dr. Polanco’s summary dismissal of all findings of one of Plaintiff’s primary treating
physicians, as well as the findings of the only independent vocational assessment conducted in this
case. This reliance constitutes an abuse of discretion.

35

B. The Effect of Plaintiff’s Medication Usage
Additionally, Aetna abused its discretion by failing to address the impact of Plaintiff’s
chronic medication usage on her ability to perform a fulltime sedentary occupation at the requisite
wage rate. This issue was prominently mentioned in Dr. Marciello’s records as well as in Parker’s
assessment; it was summarily dismissed by Dr. Polanco, who found “no findings in the clinical
reports that [Plaintiff] is cognitively affected by her chronic medication usage.” (AR at 608.) This
statement is inaccurate when compared with the medical records. The records from Dr. Louie, Dr.
Pearl, and Dr. Marciello reveal that Plaintiff experienced sedation, “dopiness,” and “mental
dulling” while taking Gabapentin and Cymbalta. The office notes from these physicians disclose
that Plaintiff continually struggled with the dosages, ceased taking these medications at times
because of the side effects, and suffered falls as a result of over-sedation. (AR at 623, 980, 989,
994, 1164, 2012, 1330, 1332) (emphasis supplied.) Parker addressed this issue in his vocation
assessment, noting that Plaintiff’s ability to function in a workplace would be negatively impacted
by these medications because they cause decreased ability to concentrate and impaired memory.
(AR at 641.) He also noted that this problem would worsen if Plaintiff needed to increase her
dosages in order to cope with a higher level of pain caused by a higher level of activity. (AR at
641.)
The medication issue is a critical component to the determination of whether Plaintiff is
capable of performing “any reasonable occupation” at the target wage rate. Aetna conducted one
TSA in May of 2012; this assessment was based entirely on Dr. McPhee’s findings that Plaintiff
could perform any sedentary job for which she was qualified.22 Even assuming arguendo that

22

Aetna also conducted an occupational assessment in March of 2012, but it focused solely on
whether Plaintiff’s education, employment history, and occupational skills would qualify her for
occupations within the sedentary physical demand level.
36

Aetna had relied on accurate sources to determine that Plaintiff could perform fulltime sedentary
work, Aetna made no finding as to whether she would be mentally qualified for such work,
considering her significant medication requirements. This is not a hypothetical inquiry; chronic
pain requires chronic medication, and this medication would have to be increased if Plaintiff spent
more time doing activities that exacerbated her pain. Aetna’s naked reliance on Dr. Polanco’s
dismissal of this issue constitutes an abuse of discretion.
C. The APS and Capabilities and Limitations Worksheets
Aetna also abused its discretion by dismissing without explanation four APS and
Capabilities and Limitations Worksheets, which showed that, from February of 2009 until at least
February of 2012, Plaintiff could not perform fulltime sedentary work. In February of 2009, Dr.
Solomon determined that Plaintiff could perform sedentary work for a few hours per day, three
days per week. (AR at 1762.) In December of 2010, Dr. Solomon found that Plaintiff had no
present ability to work. (AR at 1672.) In April of 2011, Dr. Louie did not state any number of
hours during which Plaintiff could sustain sedentary work. (AR at 1492.) In February of 2012,
Dr. Louie found that Plaintiff could sit for only one half to two-and-one-half hours out of an eight
hour day, that she could never stand, and that these restrictions would last indefinitely. (AR at
1411.) These findings directly contradict Aetna’s determination that Plaintiff could sit for six
hours and stand for two hours in an eight hour day, every day, five days per week. Aetna has not
addressed this conflict, nor has it revealed its rationale for discrediting these reports, choosing
instead to “cherry pick” those parts of the record that support its position.
D. Structural Conflict of Interest
The Supreme Court has held that, in the context of ERISA, when an entity both pays out
benefits under a disability plan and administrates claims under that plan, it operates under a

37

structural conflict of interest. Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). When
such a structural conflict exists, the reviewing courts are obligated to “consider that conflict as a
factor in determining whether the plan administrator has abused its discretion in denying benefits.”
Id. This factor, however, does not change the applicable standard of review, and its significance
“will depend upon the circumstances of the particular case.” Id. at 108, 115 (citing Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
Here, Aetna underwrites the Plan and also administrates claims for benefits. (YP at 5, 9;
Docket No. 22 at 1.) Thus it appears to be “the entity that both resolves benefits claims and pays
meritorious claims” and, “[a]s such, [it] suffers from a structural conflict of interest.” McDonough
v. Aetna Life Ins. Co., 783 F.3d 374, 379 (1st Cir. 2015). Having already found—without
considering this additional factor—that Aetna abused its discretion, I need not delve into an
examination of Aetna’s conflict. I shall simply add that the structural nature of the claims process
adds fodder to my conclusion that Aetna failed to provide a principled, substantiated review as
mandated by ERISA. See Buffonge, 426 F.3d at 30.23
4. The Remedy
The First Circuit has taken a “flexible approach” to the available remedies for a claims
administrator’s abuse of discretion. Buffonge, 426 F.3d at 31. Because “‘the variety of situations
is so great’ in ERISA review[,] . . . the court must have ‘considerable discretion’ to craft a remedy

23

Similarly, Aetna’s late disclosure of documents may be taken into account as one of the “myriad
of relevant factors” the Court considers in determining whether the benefits denial amounted to an
abuse of discretion. See Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1, 9 (1st Cir. 2009)
(citing Glenn, 554 U.S. at 117). Having found before reaching this additional factor that Aetna
abused its discretion, I need not explore the manner in which Aetna’s conduct reflects on its ability
to engage in reasoned and principled decision-making.
Regarding the surveillance video of Plaintiff, I do not find that Aetna’s failure to mention this
evidence constituted an abuse of discretion. This evidence, showing three days of inactivity, did
not necessarily conflict with Aetna’s determination that Plaintiff could perform sedentary work.
38

after finding a mistake in the denial of benefits.” Id. (quoting Cook, 320 F.3d at 24). As explained
above, I have identified three primary reasons for determining that Aetna abused its discretion in
denying Plaintiff’s benefits: Inappropriate reliance on unreliable findings by Drs. Topper, McPhee,
and Polanco; failure to address Plaintiff’s qualifications and ability to engage in sedentary
occupations in light of her medication requirements; and failure to address the findings in the APS
and Capabilities and Limitations Worksheets showing that Plaintiff could not perform fulltime
sedentary work. These findings represent my opinion that Aetna erred in both the manner in which
it conducted its review and in the substantive outcome of its decision. After thoroughly reviewing
the record, I am convinced that Plaintiff was denied benefits to which she was clearly entitled;
therefore, I do not see the benefit, under these circumstances, of remanding this case to the claims
administrator for further evaluation. See id.; Cook, 320 F.3d at 24.
Conclusion
Plaintiff’s motion for summary judgment (Docket No. 42) is granted and Defendants’
motion for summary judgment (Docket No. 40) is denied. Plaintiff’s long-term disability benefits
are hereby reinstated and she is to be compensated for past benefits due beginning on May 25,
2012.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

39