Mendelblatt v. Aetna Life Insurance Company

Filing 31

OPINION and ORDER granting Defendant's 24 Motion for Entry of Judgment on the Administrative Record and denying Plaintiff's 25 Motion for Entry of Judgment Under Wilkins. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GARY MENDELBLATT,
Plaintiff,

No. 14-cv-12140

vs.

Hon. Gerald E. Rosen

AETNA LIFE INSURANCE COMPANY,
Defendant.
________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR ENTRY OF JUDGMENT ON THE ADMINISTRATIVE
RECORD [DKT. # 24] AND DENYING PLAINTIFF’S MOTION
FOR ENTRY OF JUDGMENT UNDER WILKINS [DKT. # 25]
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on February 22, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
This ERISA denial of benefits action is before the Court on the Cross-Motions of
Defendant Aetna Life Insurance Company (“Aetna”) and Plaintiff Gary Mendelblatt,
respectively requesting affirmance and reversal of the ERISA plan administrator’s
decision terminating Mr. Mendelblatt’s long-term disability benefit payments. Having
reviewed Plaintiff’s and Defendant’s briefs and the Administrative Record in this matter,

1

the Court has determined that oral argument is not necessary. Therefore, pursuant to
Local Rule 7.1(f)(2), this matter will be decided on the briefs. This Opinion and Order
sets forth the Court’s ruling.
II. PERTINENT FACTS
BACKGROUND

Plaintiff Gary Mendelblatt, a resident of Thiensville, Wisconsin, was employed by
the Auto Club Group (“Auto Club”) as a sales compliance consultant from January 31,
2002 until January 31, 2008. At the time he ceased working, Mendelblatt was 56 years
old.
As a sales compliance consultant, Mendelblatt conducted regulatory meetings and
NASD compliance reviews of Auto Club representatives, and developed and made
presentations at large group meetings at various Auto Club offices in his region. [Admin.
Rec., Mendelblatt Claim p. 34.]1 These included offices in Wisconsin, Minnesota and
Iowa. R. 834. Mendelblatt traveled by car to these offices. Mendelblatt’s manager
estimated that the job required Mendelblatt to drive once a week for one hour; once or
twice a month his driving trips would be longer -- three or four hours. Id. Additionally,
four times a year, he was required to fly to Auto Club headquarters in Michigan. Id.

1

The Administrative Record is filed under seal at Dkt. # 19. It consists of
Mendelblatt’s 1,406-page claim file (referred to hereinafter simply as “R” followed by
the page number); the Auto Club Salaried Employees LTD Benefits Plan (referred to
herein as “Plan p. ___”): and three surveillance video DVDs, dated April 6, 2011, July
20, 2015, and October 15, 2013.
2

Over the course of his lifetime, Mendelblatt had a number of medical issues
particularly with his back/spine and joints, most notably degenerative disc disease
(“DDD”) and psoriatic/rheumatoid arthritis. On February 1, 2008, Mendelblatt applied
for Extended Sick Leave(“ESL”)/Temporary Disability Income (“TDI”). Aetna
administers the ESL/TDI program on behalf of Auto Club.
Mendelblatt began receiving ESL/TDI benefits February 8, 2008. Mendelblatt’s
eligibility for these short-term disability benefits, however, was short-lived as his position
with Auto Club was eliminated on February 29, 2008; hence, he was no longer eligible
for ESL/TDI as of that date. [R. 113-114; 127; 889.]2 However, because he was disabled
prior to the date that his job was eliminated, on June 20, 2008, Aetna informed
Mendelblatt that he would be eligible for Long-Term Disability (“LTD”) benefits under
the Auto Club benefits plan if his disability was shown to be continuous since February
1, 2008. [R. 114; 889; see also Plan, pp. 30, 34.]
THE AUTO CLUB LONG-TERM DISABILITY PLAN
The Auto Club LTD Plan is a fully contributory plan, underwritten by Defendant
Aetna. [See Plan, pp. 28, 33.] After a 6-month waiting period, the LTD Plan pays a
monthly benefit for a period of disability caused by a disease or injury. Id. pp. 30, 34.
Under the Plan, disability/disabled is defined as follows:

2

The record indicates that Plaintiff was made aware of the elimination of his
position before Aetna informed him of the resulting termination of his short-term
disability benefits. See R. 113-114.
3

Test of Disability
From the date that you first become disabled and until Monthly Benefits are
payable for 24 months, you will be deemed to be disabled on any day if:
C

you are not able to perform the material duties of
your own occupation solely because of disease or
injury; and

C

your work earnings are 80% or less of your adjusted
predisability earnings.

After the first 24 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
C
C

disease; or
injury

[Plan, p. 34 (emphasis in original).]
The Auto Club Plan further defines “own occupation” as follows:
This is the occupation that you are routinely performing when your period of
disability begins. Your occupation will be viewed as it is normally performed in the
national economy instead of how it is performed:
C
C

for your specific employer; or
at your location or work site; and

without regard to your specific reporting relationship.
Id., p. 45 (emphasis added).
The Plan also defines “reasonable occupation”:
This is any gainful activity for which you are; or may reasonable become
fitted by: education, training, or experience; and which results in; or can be
expected to result in; an income of more than 80% of your adjusted
4

predisability earnings.
Id., p. 46 (emphasis in original).
The Plan also delineates when a “period of disability” starts and ends. In relevant
part, the Plan provides as follows:
A Period of Disability
A period of disability starts on the first day you are disabled as a direct
result of a significant change in your physical or mental condition occurring
while you are insured under this Plan. . . .
Your period of disability ends on the first to occur of:
C
C

C

The date Aetna finds you are no longer disabled or the date you fail
to furnish proof that you are disabled.
The date Aetna finds that you have withheld information which
indicates you are performing, or are capable of performing, the
duties of a reasonable occupation.
***
The date you reach the end of your Maximum Benefit
Duration.
***
The date your condition would permit you to work, or increase the
number of hours you work, or the number or type of duties you
perform in your own occupation, but you refuse to do so. . . .

[Plan, p. 35.]
The Auto Club Plan also calls for an offset of other income benefits, including
Social Security Disability/Retirement benefits. Id., pp. 35-36. Pursuant to the Plan, even
when a beneficiary continues to be disabled, benefits cease when the beneficiary reaches
normal retirement age. Id. p. 31.
The Plan also vests Aetna with discretionary authority to determine eligibility for
5

benefits and construe the terms of the Plan:
Under Section 503 of Title 1 of the Employee Retirement Income Security Act of
1974, as amended (ERISA), Aetna is a fiduciary. It has complete authority to
review all denied claims for benefits under this policy. In exercising such fiduciary
responsibility, Aetna shall have discretionary authority to:
determine whether and to what extent employees and beneficiaries are
entitled to benefits; and
construe any disputed or doubtful terms of this policy.
Aetna shall be deemed to have properly exercised such authority. It must not
abuse its discretion by acting arbitrarily and capriciously. Aetna has the right to
adopt reasonable:
policies;
procedures;
rules, and
interpretations;
of this policy to promote orderly and efficient administration.
Id., p. 25.
PLAINTIFF’S CLAIM FOR LTD BENEFITS
On June 8, 2008, Mendelblatt applied for LTD benefits. In his application,
Mendelblatt gave as his illness/injury “psoriatic arthritis, back-disc problems, hand
problems and fibromyalgia” and added that his “left knee needs replacement.” R. 956.
He stated that he was unable to work because he “c[ould] not travel, write well, hold
things, stand up for more than 5 minutes” and that he was “hunched over” and his “neck,
hands, knee [and] back hurt constantly.” Id. In conjunction with his application,
Mendelblatt also completed a Work History and Education Questionnaire in which he

6

stated that his job required him to travel and he could not perform his job because he
“cannot travel, handle luggage, or walk more than 100 yds.” [R. 883.] He also stated in
that questionnaire that he “played golf occasionally” but after his disability, he “cannot
hold clubs, walk courses, bend at all, hold back straight up or swing club.” R. 884.
Upon receipt of Mendelblatt’s application for LTD benefits, a vocational
assessment of Mendelblatt’s compliance consultant position was conducted. [R. 990991.] Based on that vocational assessment, Plaintiff’s position was classified as
“sedentary,” which meant that the job entailed mostly sitting, but also involved standing
or walking for brief periods of time, and also required occasional lifting, carrying pushing
or pulling up to 10 pounds. Id.
Aetna also requested and obtained records from Dr. Mark Schrager, Dr. Stephen
Robbins, and Dr. John Roffers, the treating physicians identified in Mendelblatt’s
application. Based upon a review of the records submitted by these doctors and
Plaintiff’s self-report, Aetna determined that the overall assessment of Mendelblatt’s
multiple clinical conditions supported finding him disabled in his own occupation. [See
R. 28-30.]
Accordingly, Aetna approved Mendelblatt for LTD benefits from July 30 through
October 31, 2008. [R. 838; 1278-79.] Mendelblatt was notified, however, that to
continue receiving benefits beyond October 31, 2008, updated medical documentation
would be required periodically and had to be submitted by his health care providers at

7

least seven days before the expiration of an approved period of disability. [R. 1278.]
Not long thereafter, on August 27, 2008, Aetna sent Mendelblatt a letter notifying
him that its records indicated that he might be eligible for Social Security Disability
Insurance (“SSDI”) benefits and that he should consider applying for such benefits. [See
R. 821]. To assist him with a Social Security disability application, Aetna put him in
touch with a specialized claims administration company that provides Social Security
assistance services to disability applicants. Id.
Plaintiff did, in fact, apply for, and was awarded, SSDI benefits. Aetna was
informed by the Social Security Administration of the amount of Mendelblatt’s award of
SSDI benefits on January 6, 2009. [See R. 791-92.] However, other than the amount of
the award, no information was provided to Aetna regarding the nature of Mendelblatt’s
SSDI claim or the basis for the Social Security Administration’s disability determination.
On January 15, 2009, Mendelblatt was informed that, as provided in the Auto
Club Plan, his LTD amount would be offset by the amount of SSDI award. [R. 250.]
Meanwhile, upon follow-up clinical reviews in October 2008 and January 2009,
Aetna was satisfied that updated medical records submitted by Mendelblatt and his
doctors continued to support finding Plaintiff impaired in his own occupation. [R. 1016,
1037.] In August 2009, however, Aetna found that the updated medical records were
insufficient to support a continued functional impairment in Mendelblatt’s own
occupation. This determination was based upon notations in the records that Mendelblatt

8

was able to play golf in Florida despite his continued subjective complaints of pain. [R.
1038.] Nonetheless, based on the totality of the evidence presented, Aetna was not
convinced at that time that the objective findings were sufficient to preclude Mendelblatt
from continuing to receive LTD benefits. Id.
In order to ascertain whether Mendelblatt continued to be disabled, Aetna
requested Dr. Sara Kramer, a specialist in internal medicine and rheumatology, to
conduct a peer-to-peer consultation with Plaintiff’s then treating rheumatologist, Dr.
Marc Schrager. A peer-to-peer consultation was conducted on September 25, 2009. [See
R. 723-26.] Dr. Schrager indicated in that consultation that Mendelblatt did “have
restrictions and would not be able to stand for prolonged periods of time and would need
to be able to change positions frequently.” Id. at R. 724. However, although Dr.
Schrager acknowledged that Mendelblatt had physical limitations, he opined that
Mendelblatt “was capable of doing more than he indicated.” Id. at 725. From a
rheumatologic perspective, it was Schrager’s opinion that Mendelblatt “would have the
ability to sit for six hours out of an eight hour day.” Id. Dr. Schrager, however, declined
to offer any opinion as to Mendelblatt’s strength, specifically his ability to lift 10 to 20
pounds, as that was beyond his area of expertise; he indicated that for that evaluation he
would defer to the expertise of an orthopedic specialist. Id. Accordingly, arrangements
were made for a follow-up with an orthopedic specialist. Meanwhile, Mendelblatt’s LTD
benefits were continued.

9

On July 30, 2010, Mendelblatt’s initial 24-month period of disability ended. As a
consequence, after that date, to continue benefits, the medical evidence had to establish
that Mendelblatt was totally disabled from engaging in “any reasonable occupation,” not
just his “own occupation.” Mendelblatt, therefore, was notified that Aetna would be
conducting a thorough evaluation of his claim to determine his eligibility for benefits
beyond July 30, 2010 under this standard. [See R. 1290.]
Additional clinical information was thereafter obtained from Plaintiff’s health care
providers. On August 23, 2010, Aetna determined that this updated clinical information
was “insufficient to support a functional impairment in [Plaintiff’s] own and any
occupation.” [See R. 1079.] While these records showed that Mendelblatt had multiple
joint issues, they also indicated that Plaintiff was functionally able to sustain a sedentary
occupation.
Following this August 2010 review, Aetna decided that the case should be referred
for surveillance of Mendelblatt to check his daily activities, in particular, to ascertain
whether Mendelblatt was able to play golf, as there were multiple references in the
medical records to Plaintiff playing multiple rounds of golf. [R. 1079-80.]
Surveillance, however, was not conducted immediately because Aetna was
informed that Mendelblatt was scheduled for surgery on November 17, 2010. [R. 1117.]
It was, therefore, decided that surveillance would be postponed for three months. Id.
Meanwhile, Mendelblatt continued tor receive LTD benefits.

10

On December 3, 2010, an internet search was performed which showed that
Mendelblatt was very active with golf and a golf course called “The Bog.” [See R.
1116.] Mendelblatt was listed as a member of the board of directors of that course. Id.
The internet search also revealed that Mendelblatt had recently visited and written
reviews of several golf courses in Florida. Id. On one site, he was listed as having
earned “honors” for his score of 78. Id. Additionally, Mendelblatt posted on his
Facebook page that he “lives” at the golf course, that he “play[s] golf everyday,” and that
he even had a hole-in-one the previous year. Id.
Surveillance was subsequently conducted on Mendelblatt on April 6, 7 and 8,
2011 after Mendelblatt posted that he was looking forward to the opening day of his golf
course on April 7th. During this surveillance, however, Mendelblatt was only observed
briefly outside of his residence, walking around his yard. R. 1124. The investigator did
not see any outward signs of physical limitations or disabilities during this brief
observation. Id.
In the meantime, a clinical consultant review was performed on March 5, 2012.
[R. 1137-43.] Based on this review, Aetna determined that continued functional
impairment was supported through May 30, 2012. [R. 1142.]
A subsequent clinical review conducted on December 12, 2012 also provided
support for continued functional impairment in any reasonable capacity through January
2013. [R. 1173-76.] The reviewing health care provider, however, specifically noted

11

that the information reviewed was based on older office notes and Plaintiff’s self-report
letter of October 31, 2012. [R. 1176.]
To obtain more current information, on January 22, 2013, Aetna interviewed
Plaintiff by phone. [See R. 1191.] In this interview, Mendelblatt stated that he was using
a cane to walk but it was hard for him to use a cane because of the strength it takes in his
hands. Id. He also stated that he rarely drives; that his is “just in the house” all day. Id.
He said he can sit for a while, but not very long, but then stated that he plays cards with
his friends. Id.
Notably, with respect to golf, Plaintiff told the Aetna interviewer that he is unable
to golf. Id. He said that if he gets a cart, he can get out of the cart and hit, but he can’t
walk or putt on the green; he said he can only stand 4-5 minutes and then sit down. Id.
Mendelblatt further stated that he played “a few holes” last summer [i.e., summer 2012],
but that was all, adding that he “would love to get back out and golf, but [he] can’t do it.”
Id.
However, a subsequent online search appeared to contradict what Plaintiff said in
his phone interview. This search showed that Mendelblatt had notched honors scores for
full rounds of golf in July and August 2012. [See R. 1204.] There was further evidence
that Mendelblatt logged in eight different scores for full rounds of golf at five different
courses, id., including scores recorded in January and February 2013 at Florida golf
courses. [R. 1212.]

12

Nevertheless, on March 5, 2013, Dr. Farrukh Pasha, the attending rheumatologist
who took over Mendelblatt’s treatment after Dr. Schrager retired in December 2011,3
submitted an opinion in support of Plaintiff’s claim for LTD benefits in which he stated
that Plaintiff was totally and permanently disabled as he could not sit, stand walk, lift or
hand grasp sufficiently in the work environment. [R. 344, 346.] Dr. Pasha also
completed a Capabilities and Limitations Worksheet in which he opined that Plaintiff
was permanently and totally disabled. [R. 345.]
In light of the apparent conflict between what was discovered through the internet
search and what Plaintiff and Dr. Pasha had stated, Aetna once again requested a
background investigation and surveillance of Mr. Mendelblatt’s activities. That
surveillance was conducted on July 1, 2 and 12, 2013. While no activity was observed
during this surveillance, the investigator did go to the clubhouse at Hidden Glen Golf
Course near Mendelblatt’s home on July 2, 2013, and spoke with a member of the golf
club who confirmed that Mendelblatt was also member of the club and that he had last
been seen golfing there just the month before, in May 2013. [R. 339.]
Shortly thereafter, Plaintiff notified Aetna that he was having another surgery -this time for a problem with his esophagus -- on July 24, 2013. [R. 337.] Therefore,
Aetna again suspended its investigation into Mendelblatt’s activities, and continued to
pay him LTD benefits.

3

See R. 504.
13

Surveillance and investigation were resumed on October 10 and 11, 2013. During
this investigation it was discovered that Mendelblatt golfed 11 times in October 2013 and
had documented 9 rounds of golf in September 2013 with golf scores ranging from 75 to
88. [R. 328.] Surveillance of Mendelblatt was also conducted, during which Mendelblatt
was personally observed golfing for two consecutive days. [R. 322, 324-27.] He was
observed casually riding in a golf cart, teeing off, bending down to pick up the ball,
walking up a small hill, and bending to putt. Id. A surveillance video was made of these
activities.4
On November 6, 2013, Aetna provided Dr. Pasha with the investigative report of
the surveillance and photographs showing Plaintiff golfing and asked the doctor to
comment on Plaintiff’s functional ability. [R. 319-20.] Dr. Pasha responded that he was
surprised to see the pictures and records provided by Aetna which, in the doctor’s view,
showed a “significant improvement” in Plaintiff’s ability to function since the last
disability evaluation done by Dr. Pasha on March 2013. [R. 314.] Based on this
information, Dr. Pasha stated he would not be doing any further disability evaluations for
Mr. Mendelblatt. Id.
On November 26, 2013, Aetna informed Plaintiff that it was terminating his LTD
benefits effective November 26, 2013. Aetna’s termination letter, in pertinent part,
explained:
4

A DVD of this surveillance as well as the earlier surveillances was provided to
the Court as part of the Administrative Record.
14

The Auto Club Group, group policy (Policy) is underwritten by Aetna Life
Insurance Company (Aetna).
We are writing to you regarding your benefits provided by your employer
The Auto Club Group. As a result of our recently completed review of
your claim, we have determined that you no longer meet the definition of
disability. This determination is based upon the following information.
Your plan states:
“Test of Disability
From the date you first become disabled and until Monthly Benefits are
payable for 24 months, you will be deemed disabled on any day if:
C
you are not able to perform the material duties of your own
occupation solely because of disease or injury; and
C
your work earnings are 80% or less of your adjusted predisability
earnings.
After the first 24 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
C
disease; or
C
injury.
If your own occupation requires a professional or occupational license or
certification of any kind, you will not be deemed disabled because of the
loss of that license or certification.”
We received an Attending Physician Statement from Dr. Pasha, signed
3/5/2013. Dr. Pasha stated you had no ability to work with symptoms of
joint and back pain with stiffness. Dr Pasha stated you are totally and
permanently disabled. Dr. Pasha stated you cannot stand, walk, nor lift
your hands sufficiently for work situations.
The Capabilities and Limitations Worksheet completed by Dr. Pasha and
signed on 3/4/2013 states that you are to never:
climb, crawl, kneel, lift, pull, push, reach above shoulder, forward reach,
carry, bend, twist, hand grasp, use hands for manipulation, use hands for
repetitive motion, sit, stoop, walk, lift over 10 lbs., operate hazardous
machinery, nor operate power tools. Dr. Pasha stated again that you are
15

permanently disabled.
Access to Public Domain under the following internet sites showed the
following (see enclosures):
C
https://plus.google.com/1014463743082262404
C
http://www.linkedin.com/pub/gary-mendelblatt/22/869/40a
C
twitter.com/garym6165
C
http://www.independentmail.com/photos/galleries/2012/apr03golfcommunities-seek-to-attract-families/79928/ C
http://www.jsonline.com/sports/golf/golfhonorag09-rv622ng161750625.html
C
http://www.jsonline.com/sports/golfhonorag09-rv622ng16750625.html
C
http://www.wsgalookup.com/gmendelblatt/recent.htm
We then performed direct observation of your activities on 10/10/2013 and
10/11/2013. On 10/11/2013, you were observed playing golf at Hidden
Glen (see enclosures).
You were observed:
arriving at the golf course, playing golf with two other men, driving a golf
ball, driving the golf cart with one leg out, sitting in your cart, walking,
navigating and walking up a steep hill, swinging an iron, lifting the flag on
the green, bending over while putting it in, and bending over while putting
on the green.
We sent this information to Dr. Pasha on 11/7/2013 for comment as what
was observed differed greatly from Dr. Pasha’s statement that you were
permanently and totally disabled. Dr. Pasha responded on 11/14/2013. Dr.
Pasha stated that he was “surprised” to see the pictures and records
provided to him by Aetna. Dr. Pasha stated these records showed a
“significant improvement in current ability and function since the last
evaluation in 3/2013.” Dr. Pasha continued to state at this time he will not
be doing any further disability evaluation for you.
As a result of the direct observation performed on 10/10/2013 and
10/11/2013, you demonstrated physical ability at greater than sedentary
capacity.
Sedentary capacity is classified as:
16

Sedentary Work - Exerting up to 10 pounds of force occasionally
(Occasionally: activity or condition exists up to 1/3 of the time) and/or a
negligible amount of force frequently (Frequently: activity or condition
exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise
move objects, including the human body. Sedentary work involves sitting
most of the time, but may involve walking or standing for brief periods of
time. Jobs are sedentary if walking and standing are required only
occasionally and all other sedentary criteria are met.
Your own occupation as a Sales Compliance Consultant is classified as a
sedentary occupation.
Given your demonstrated ability, you possess the physical capacity to
perform your own occupation.
Your plan states (note this list is not all inclusive):
“A Period of Disability
Your period of disability ends on the first to occur of:
C
The date Aetna finds you are no longer disabled or the date you fail
to furnish proof that you are disabled.”
In view of the above, your benefits are terminated effective 11/26/2013.
We understand that you are approved for Social Security Disability (SSD)
benefits. However, our disability determination and the SSD determination
are made independently and are not always the same. The difference
between our determination and the SSD determination may be driven by
the Social Security Administration (SSA) regulations. For example, SSA
regulations require that certain disease/diagnoses or certain education or
age levels be given heavier or even controlling weight in determining
whether an individual is entitled to SSD benefits. Or, it may be driven by
the fact that we have information that is different from what SSA
considered. We have not been provided with the basis for the SSD
determination, and the evidence that was relied on for the SSD
determination has not been identified to us. Therefore, even though you are
receiving SSD benefits, we are unable to give it significant weight in our
determination, and we find that you are not (or you are no longer) eligible
for LTD benefits based on the plan definition of Totally Disabled quoted
above.
17

We will review any additional information you care to submit, such as
medical information from all physicians who have treated you for the
conditions, including but not limited to:
C

C
C

a detailed narrative report for the period 3/1/2013 through Present
date, outlining the specific physical and/or mental limitations related
to your condition that your doctor has placed on you as far as gainful
activity is concerned; physician’s prognosis, including course of
treatment, frequency of visits, and specific medications prescribed;
diagnostic studies conducted during the above period, such as test
results, x-rays, laboratory data, and clinical findings;
any information specific to the condition(s) for which you are
claiming total disability that would help evaluate your disability
status, and any other information or documentation you think may
help in reviewing your claim.

You are entitled to a review of this decision if you do not agree. To obtain
a review, you or your authorized representative should submit a written
request. . . .
Your written request for review must be mailed or delivered to the address
above within 180 days following receipt of this notice, or a longer period if
specified in our plan brochure or Summary Plan description. . . .
If your plan is covered under the Employee Retirement Income Security
Act (ERISA), and you do not agree with the final determination upon
review, you have the right to bring a civil action under section 502(a) of
ERISA.
[R. 1308-10 (spelling and punctuation errors corrected)].
PLAINTIFF’S APPEAL
Plaintiff immediately requested an appeal. [R. 311] On November 28, 2013, Dr.
Kevin J. Goniu, Mendelblatt’s general practitioner, submitted a statement in support of
Plaintiff’s appeal, in which he expressed his disagreement with Aetna’s conclusion that
he was not or no longer disabled under the Auto Club Plan and the termination his
18

benefits. [R. 301-302]. Dr. Goniu, however, did not opine that Plaintiff was disabled
from “any” occupation. See id.
Plaintiff also submitted a two-sentence letter dated December 4, 2013 by Dr.
Bruce T. Faure, his orthopedist, in which Dr. Faure stated, “On the basis of Mr.
Mendelblatt’s multiple joint replacement surgeries and ongoing systemic rheumatic
disease I consider him totally disabled.” R. 303. Dr. Faure opined that Plaintiff was
totally disabled from extended work activities “involving significant ambulation or
repetitive activity requirements.” Id.
As part of the appeal process, Aetna also requested independent physician reviews
from specialists in orthopedic surgery and rheumatology. [R. 1241-1242] On December
24, 2013, Dr. Martin Mendelssohn, who is Board Certified in Orthopedic Surgery,
performed a physician review. [R. 294-299] Dr. Mendelssohn had a teleconference with
Plaintiff’s physician, Dr. Faure. Id. at 298. Dr. Faure told Dr. Mendelssohn that Plaintiff
would be able to participate in functional activity that would not require significant
ambulation or repetitive activity. [R. 298] Dr. Mendelssohn also spoke with Plaintiff’s
general physician, Dr. Goniu, who claimed Plaintiff was unable to participate in gainful
employment but could not provide evidence of any significant functional or neurological
deficits. Id.
Dr. Mendelssohn concluded that based on the provided medical documentation,
and the teleconferences with Drs. Faure and Goniu, Plaintiff did not have a functional

19

impairment that would preclude him from a sedentary occupation if he was able to
change positions as needed. Id.
On December 26, 2013, Dr. Mark R. Burns, a specialist in internal medicine and
rheumatology, performed a physician review of Mendelblatt’s case. [R. 275-280] Dr.
Burns consulted with Plaintiff’s treating rheumatologist, Dr. Pasha, whose office
indicated that Dr. Pasha continued to be unwilling to participate in any disability
determination. [R. 277] Dr. Burns was not able to immediately reach Dr. Goniu. Id.
Dr. Burns contacted Dr. Faure who stated that he felt Plaintiff could not work at
any occupation regularly despite his ability to play golf. Id. Dr. Faure believed Plaintiff’s
history of multiple surgeries in-and-of-itself established restrictions from any occupation;
but he did not identify any specific restrictions. [R. 278].
Based on the provided documentation, and telephonic consultations, Dr. Burns
opined that there were impairments from November 26, 2013 forward; however, they
would not preclude Plaintiff from performing a sedentary occupation. [R. 278] Dr. Burns
stated that the most recent clinical notes, which were from July 2012 and September
2012, did not establish specific restrictions. Id.
Dr. Burns also viewed the surveillance videos and noted that the surveillance
indicated that Mendelblatt was capable of golfing for 2 days in a row for at least several
hours. Id. Dr. Burns further observed the following about Plaintiff: he had a gait with
normal cadence; he could manage a small hill on a golf course with normal stride; he was

20

able to fully abduct the shoulders and handle a golf swing; he was able to bend at the tee,
putting and at his car; and he could handle a small bag, ball, clubs, swing, handle keys
and car doors, drive a car and a golf cart. Id. Dr. Burns found that there was no apparent
impairment of hand function or reach; however, because of the hip stiffness and multiple
surgeries in back/neck/hip/ knee, Dr. Burns limited lift/carry/push/pull to 20 pounds,
occasionally. Id. He further opined that the available information did not establish any
limitation to sit/stand/walk, nor to postural changes. Id.
On January 3, 2014, Dr. Burns was able to reach Plaintiff’s physician, Dr. Goniu,
and provided an addendum to his report. [R. 279-280] Dr. Goniu did not note specific
impairments but instead based his opinion on his understanding that Plaintiff’s
orthopedists concluded that he was disabled. [R. 279] Dr. Burns reasoned that if Plaintiff
was able to achieve a level of function that allowed him to regularly and independently
play golf without assistance, then the implication was that he could perform in the
workplace, as well. Id. Dr. Burns did not change his opinion based on his discussion
with Dr. Goniu, but he noted there was a discrepancy between the attending physician’s
assessment of functional capacity and the claim file documentation. [R. 280]
Plaintiff also provided his own personal narrative as part of his appeal as to why
he believed he should be deemed disabled in a letter to Aetna Disability Claims Specialist
Jason Gravel dated December 27, 2013. [See R. 300.] In that letter, Mendelblatt claimed
that his position was not a sedentary position because he was in charge of five states and

21

had to travel to Dearborn, Michigan for meetings once a month. Id. Also submitted to
Aetna in support of Plaintiff’s appeal were records from Dr. James Stoll, an orthopedic
surgeon, indicating that on December 27, 2013, Mendelblatt underwent elective a
decompressive laminectomy due to L3-L4 Spinal Stenosis. [R. 270] It was noted in these
records, however, that postoperatively, his leg pain improved. Id. Dr. Stoll also
submitted a letter dated December 28, 2013, in support of Plaintiff’s appeal. [See R.
269.] In this letter, Dr. Stoll voiced his disagreement with Aetna’s conclusion that
Plaintiff was not disabled. [R. 269.]
After reviewing all of the medical information in Mendelblatt’s file, including the
information specifically submitted in connection with Plaintiff’s appeal, on January 8,
2014, Aetna upheld the termination of Mendelblatt’s LTD benefits, effective November
26, 2013. [See R. 1312-1315]. Aetna explained:
Our records show that the first day you were absent from work was
February 01, 2008, and your benefits began July 30, 2008, following a 6
month waiting period. However, Aetna terminated your benefits because
the medical information did not support a functional impairment that would
prevent you from performing the material duties of any occupation. You
have appealed this decision and we have concluded our appellate review.
Our review included all medical information in your Long Term Disability
file. Please note that while we reviewed all information in your file, not
every piece of documentation will necessarily be referenced in this letter.
To give your claim every consideration, we forwarded it for review by
independent physician reviewers, who specialize in Rheumatology and
Orthopedic Surgery. The independent physician reviewers reviewed the
medical information, and rendered an opinion with regard to functionality.
For the medical documentation, you were treating with Dr. Pasha,
22

Rheumatologist, since at least 2010 for psoriatic arthritis with
spondyloarthropathy, as well as degenerative joint disease (DJD) of the
knees.
We received an Attending Physician Statement (APS) and Capabilities and
Limitations Worksheet dated March 05, 2013 on which the physician notes
global severe restrictions and that you were totally disabled.
On July 12, 2013, a confidential investigative report was completed.
However, you were not observed during the direct observation which was
split into one full day and two half days.
On October 11, 2013, a second confidential investigative report was
completed. It indicated that upon direct observation, you arrived at a golf
course, you golfed and had the ability to bend when you were on the
putting green, you were able to use golf clubs and drive a golf cart, as well
as drive your own vehicle. It was reported you played golf for 2
consecutive days.
On November 1, 2013, a golf activity sheet from Hidden Glen at Bentdale
Farms was provided. Documentation indicates you golfed 11 times in
October 2013 and documented 9 times in September 2013 with golf scores
ranging from 75-88.
After the direct observation, information was sent to Dr. Pasha. Dr. Pasha
sent a letter dated November 14, 2013, in which he indicated Dr. Schrager,
your previous rheumatologist, had deemed you to be disabled and Dr.
Pasha assumed your care on January 20, 2012. Dr. Pasha was surprised at
your significant improvement and your current ability to function since
your last disability evaluation of March 2013. Dr. Pasha indicated he
would not do any further disability evaluations for you.
On November 28, 2013, Dr. Goniu provided a letter on your behalf. Dr.
Goniu reported you were under his care since 2009. Dr. Goniu indicated
Social Security and your employer considered you to be disabled since you
were unable to physically perform the demands of your occupation as an
outside sales representative with a national account balance, and he opined
that remains the case. Dr. Goniu further notes that the physical demands of
your occupation in outside sales, which required you to travel nationally,
versus the recurrence of getting in and out of a golf cart, picking up golf
23

clubs, and swinging a golf club are markedly different.
On December 04, 2013, Dr. Faure provided a letter indicating you were
totally disabled. He indicated you were capable of single-event activity but
would not expect you to have the capabilities for extended work activities
involving significant ambulation or repetitive activity requirements.
During the medical review, we instructed the independent physician
reviewers to contact Dr. Bruce Faure and Dr. Kevin Goniu to discuss the
severity of your condition. We also asked the reviewers to obtain
information about how your condition affects your ability to perform any
occupation.
The independent physician reviewer who specializes in Orthopedic Surgery
conducted a peer-to-peer consultation with Dr. Faure on December 19,
2013. Dr. Faure indicated you would be able to participate in a functional
activity that would not require significant ambulation or repetitive activity
because of your severe psoriatic arthritis and multiple surgeries.
On December 19, 2013, the independent physician reviewer contacted Dr.
Kevin Goniu. Dr. Goniu indicated you had psoriatic arthritis and had
undergone multiple procedures. Dr. Goniu indicated your need for various
medications and that you were unable to participate in gainful employment.
However, he could not provide evidence of any significant functional or
neurological deficiencies.
The independent physician reviewer who specializes in Rheumatology
conducted a peer-to-peer consultation with Dr. Faure on December 26,
2013. Dr. Faure feels that with so many joint replacements and with
ongoing flares of arthritis that you are unable to work at any occupation.
Dr. Faure indicated he did not feel your ability to participate in golfing
equated to work capacity. He indicates that although you are able to play a
game of golf this does not mean you have the ability to work and that you
are totally and permanently disabled.
An attempt was made to Dr. Goniu to conduct a peer-to-peer consultation
by the reviewing Rheumatologist, but he was unsuccessful in reaching him.
After the review of the medical documentation, the independent physical
reviewer who specializes in Rheumatology opined, in pertinent part, the
24

following: The direct observation establishes certain functions that you are
able to perform. You were out 2 days in a row golfing for several hours.
Although you used the cart instead of walking, you were able to handle the
cart which requires physical effort. Your gait was normal and you were
capable of managing a small hill on the golf course with normal stride.
You had the ability to fully abduct the shoulders and handle the golf swing
with noted hip stiffness, but no limitation in full arm follow through. You
were able to bend at the tee and although you had hip stiffness and multiple
surgeries, there were no limitations noted in your sitting, standing, walking
and reaching.
There is no documentation that there have been significant flares of
synovitis since the last progress notes submitted for review.
Due to the unsuccessful peer to peer between the reviewing Rheumatologist
and Dr. Goniu, we faxed a copy of the physician’s report for him to review.
We asked Dr. Goniu to review the report and provide any objective
documentation to support his opinion, if he disagreed.
On January 03, 2014, the independent physician reviewer who specializes
in Rheumatology conducted a peer-to-peer consultation with Dr. Goniu.
Dr. Goniu was unable to proved any specific impairments, however he
indicated your orthopedists have concluded that you were disabled. He
indicated you maintain a level of function through the use of many
medications. The independent physician reviewer explained to Dr. Goniu
that the level of functioning he had to play golf indicates he has the
function to perform in any occupation.
Dr. Goniu indicated you had a history of achalasia and you were status post
a myotomy in July 2013. Your symptoms have gotten much worse and you
were hospitalized November 2013 with aspiration pneumonia.
Based upon our review of the information you provided, and as explained
in more detail above, we have determined that there was insufficient
medical evidence to support your disability as of November 26, 2013.
Although you had a history of Psoriatic Arthritis and are status post
multiple surgeries, you have the ability to perform any occupation.
Therefore, the original decision to terminate LTD benefits, effective
November 26, 203 has been upheld.

25

[R. 1312-1315.]
Pursuant to his rights under ERISA, Plaintiff thereafter instituted this action for
denial of disability benefits.
III. DISCUSSION
A.

STANDARD SCOPE OF REVIEW
The Supreme Court has ruled that the standard of review in ERISA denial of

benefits cases is de novo unless the benefit plan gives the plan administrator discretion to
determine eligibility for benefits or construe plan terms:
Consistent with established principles of trust law, we hold that a denial of
benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo
standard 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 and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 956 (1989).
See also, McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1063 (6th Cir.2014);

Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 616 (6th Cir. 1998). If a plan
grants such discretion to an administrator or fiduciary, then the court must review the
denial of benefits under the “arbitrary and capricious” standard. Shaw v. AT&T Umbrella
Benefit Plan No. 1, 795 F.3d 538, 547 (6th Cir.2015) (citing Marks v. Newcourt Credit
Grp., Inc., 342 F.3d 444, 456 (6th Cir.2003)); see also Williams v. International Paper
Co., 227 F.3d 706, 711 (6th Cir. 2000).
The arbitrary and capricious standard is a highly deferential one. See Killian v.
Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir.1998) (citing Yeager v.

26

Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996)); see also McLain v.

Eaton Corp. Disability Plan, 740 F.3d at 1064. (“[T]he arbitrary and capricious “standard
is extremely deferential and has been described as the least demanding form of judicial
review.” (citations omitted)). “An ‘extremely deferential review,’ to be true to its
purpose, must actually honor an ‘extreme’ level of ‘deference’ to the administrative
decision.’” Id. “When it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary and capricious.” Perry v.
United Food & Commercial Workers Distrib. Unions 405 & 422, 64 F.3d 238, 242 (6th
Cir.1995); Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989), cert.
denied, 495 U.S. 905 (1990). Thus, “[a]lthough the evidence may be sufficient to support
a finding of disability, if there is a reasonable explanation for the administrator’s decision
denying benefits in light of the plan’s provisions, then the decision is neither arbitrary nor
capricious.” Schwalm v. Guardian Life Ins. Co. of America, 626 F.3d 299, 308 (6th Cir.
2010) (citing Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th Cir.2000)). “A decision
reviewed according to the arbitrary and capricious standard must be upheld if it results
from ‘a deliberate principled reasoning process’ and is supported by ‘substantial
evidence.’” Id. (quoting Baker v. United Mine Workers of Am. Health & Ret. Funds, 929
F.2d 1140, 1144 (6th Cir.1991)).
By contrast, when conducting a de novo review of a plan administrator’s decision
in an ERISA denial-of-benefits case, the district court must take a “fresh look” at the

27

administrative record, Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th
Cir. 1998), “without deference to the decision or any presumption of correctness.” Perry
v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir.1990).
Whether the standard is “arbitrary and capricious” or de novo, the Court is to
conduct its review based “solely upon the administrative record,” Wilkins, supra, and may
not consider “evidence not presented to the plan administrator.” Perry, supra.

The LTD Plan in this case expressly grants to Aetna “discretionary authority to:
determine whether and to what extent employees and beneficiaries are entitled to
benefits; and construe any disputed or doubtful terms of this policy.” [Plan, p. 25.]
Therefore, pursuant to Bruch and its progeny, the arbitrary and capricious standard of
review applies.
Plaintiff argues, however, that the Plan provision granting Aetna discretionary
authority has been rendered null and void by Michigan law, and therefore, the de novo
standard of review should apply. Specifically, Plaintiff argues that section 500.2202 of
the Michigan Administrative Code, which took effect June 1, 2007, prohibits insurers
from issuing insurance policies which contain discretionary clauses. This section, which
was promulgated under the authority of the Michigan Office of Finance and Insurance
Services, provides:
(a) A discretionary clause unreasonably reduces the risk purported to be
assumed in the general coverage of the policy within the meaning of MCL
500.2236(5).

28

(b) On and after the first day of the month following the effective date of
these rules, an insurer shall not issue, advertise, or deliver to any person in
this state a policy, contract, rider, indorsement, certificate, or similar
contract document that contains a discretionary clause. This does not apply
to a contract document in use before that date, but does apply to any such
document revised in any respect on or after that date.
(c) On and after the first day of the month following the effective date of
these rules, a discretionary clause issued or delivered to any person in this
state in a policy, contract, rider, indorsement, certificate, or similar contract
document is void and of no effect. This does not apply to contract
documents in use before that date, but does apply to any such document
revised in any respect on or after that date.
Mich. Admin. Code R. 500.2202.
A “discretionary clause” is defined in R. 500.2201(c) as
a provision in a form that purports to bind the claimant to or grant
deference in subsequent proceedings to the insurer’s decision, denial, or
interpretation on terms, coverage, or eligibility for benefits including, but
not limited to, a form provision that does any of the following:
***
(vi) Provides that or gives rise to a standard of review on
appeal that gives deference to the original decision.
(vii) Provides that or gives rise to a standard of review on
appeal other than a de novo review.
Mich. Admin. Code R. 500.2201(c)(vi), (vii).5
5

Although this case is governed by ERISA, which normally preempts any state
law that relates to employee benefit plans, see Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 45, 107 S.Ct, 1549, 1552 (1985), state laws that regulate insurance are “saved” from
preemption pursuant to ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(B)(2)(A). “For a state
law to be deemed a ‘law... which regulates insurance’ under § 1144(b)(2)(A), it must
satisfy two requirements. First, the state law must be specifically directed toward entities
engaged in insurance. Second, [] the state law must substantially affect the risk pooling
arrangement between the insurer and the insured.” Ky. Ass’n of Health Plans, Inc. v.
29

Because the Auto Club Plan provided LTD benefits through a group policy issued
by Aetna, was delivered in Michigan, and states that it “will be construed in line with the
law of the jurisdiction in which it was delivered,” [see Plan, p. 4], Plaintiff argues that the
inclusion of the discretionary grant of authority to Aetna in the Plan is null and void.
The flaw in Plaintiff’s reasoning is that the group policy in question here was
issued on March 30, 2007, i.e., before the effective date of Michigan Administrative
Code R. 500.2201-2202, and was never revised thereafter in any respect. See
Declaration of Aetna Supervisor Susan Z. Quigley, Defendant’s Response Brief, ¶¶ 5-7.6
Regulation 500.2202 became effective June 1, 2007. By its own terms, R. 500.2202 does
not apply to policies that were not amended on or after June 1, 2007. See White v.
Standard Ins. Co., 529 F. App’x 547, 552 (6th Cir. June 28 2013) (citing Morrison v.
Unum Life Ins. Co. of Am., 730 F. Supp. 2d 699, 706 (E. D. Mich. 2010) (“[T]he intended
purpose of the Regulation was to invalidate discretionary clauses in contracts which
existed prior to its effective date, but only from and after any revision occurring on or
after July [sic; June] 1, 2007.”) For these reasons, the Court concludes that Mich.

Miller, 538 U.S. 329, 341, 123 S.Ct. 1471, 1479 (2003) (internal citations omitted).
Applying the Miller test, the Sixth Circuit has held that Mich. Admin. Code R. 500.22012202 are saved from preemption under 29 U.S.C. § 1144(B)(2)(A). See American
Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009).
6

“The Court is not prohibited from considering evidence outside of the
administrative record to ascertain the appropriate standard of review....” Weinkauf v.
Unicare Life & Health Ins. Co., 2010 WL1839441 at * 4 (citing Daniel v. Unum
Provident Corp., 261 F. App’x 316, 318 (2d Cir. 2008)).
30

Admin. Code R. 500.2202 does not void the discretionary clause in the Auto Club LTD
Plan. Accordingly, the arbitrary and capricious standard will govern the Court’s review
of the Plan administrator’s decision.
B.

SCOPE OF REVIEW
As indicated above, whether the standard of review is “arbitrary or capricious” or

de novo, the Court’s review is confined to the record that was before the Plan
Administrator when the final decision was rendered. Wilkins v. Baptist Healthcare

System, Inc., 150 F.3d at 615; Judge v. Metropolitan Life Ins. Co., 710 F.3d 651, 568 (6th
Cir. 2013). The Court may not consider “evidence never presented to the plan
administrator.” Perry v. Simplicity Engineering, 900 F.2d at 966.

Plaintiff Mendelblatt has appended to his Brief in Support of his request for
reversal of the plan administrator’s decision documents outside of the administrative
record concerning his award of SSDI benefits. These appear to be the disability
determination made by the Social Security Administration in awarding Mendelblatt SSDI
benefits, the SSA transmittal document, and two SSA case analyses, none of which were
ever presented to the Plan Administrator. Plaintiff seeks to rely on these SSA documents
in support of his claim that Aetna’s medical analysis was erroneous. However, because
the evidence pertaining to Plaintiff’s social security award is not part of the
administrative record, it cannot be considered. See Lee v. MBNA Long Term Disability &
Benefit Plan, 136 F. App’x 734, 747 (6th Cir. Mar. 29, 2005). Accordingly, the Court

31

will consider only the information submitted before Aetna’s January 8, 2014 final
decision on appeal.
C.

THE PLAN ADMINISTRATOR DID NOT ACT ARBITRARILY OR
CAPRICIOUSLY IN TERMINATING PLAINTIFF’S LTD BENEFITS

As set forth above, under the arbitrary and capricious standard, a court will uphold
a plan administrator’s benefit determination if that determination was rational in light of
the plan’s provisions. Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1987), cert.
denied, 488 U.S. 826 (1988). Stated differently, “when it is possible to offer a reasoned
explanation, based on evidence for a particular outcome, the outcome is not arbitrary and
capricious.” Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d at 693.
Here, the administrative record more than abundantly supports the conclusion that
the Administrator’s decision was both reasonable and “rational in light of the plan’s
provisions.”

The Administrator’s reason for terminating Mendelblatt’s LTD benefits as of
November 26, 2013 was that he no longer met the definition of “disability” under the
Plan. The applicable definition of disability required evidence that Plaintiff was “not
able to work at any reasonable occupation.” [See Plan, p. 34.] In seeking reversal of the
Administrator’s decision, Plaintiff argues that Aetna made the determination that he was
no longer disabled by relying exclusively on the results of file reviews performed by nonexamining physicians while all of Plaintiff’s numerous treating physicians support his
total disability.
32

First of all, not all of Plaintiff’s treating physicians “support his total disability.”
Certainly Dr. Pasha no longer continues to support Plaintiff’s claim of disability. And,
Dr. Faure stated only that he “would not expect him to have the capability for extended
work activities involving significant ambulation or repetitive activity requirements.” [R.
303.] Dr. Goniu also opined that “Plaintiff [could] certainly sit at a desk and hold a pen,
but he [was] completely incapable of carrying and lifting luggage or a briefcase.” [R.
301-02]. While Dr. Goniu later opined that Plaintiff was unable to participate in gainful
employment, he could not provide evidence of any significant functional or neurological
deficits and did not identify any basis for the change in his opinions, particularly in light
of the evidence about Plaintiff’s actual functional activities. [R. 298].
But even if in the opinion of Plaintiff’s treating physicians Plaintiff is disabled,
contrary to Plaintiff’s assertions, a plan administrator is not required to accord any special
deference to treating physicians’ opinions. See Black & Decker Disability Plan v. Nord,
538 U.S. 822, 825, 831 (2003).
Moreover, the plan administrator is not required to provide any particular
explanation for rejecting the opinion of a treating physician. Id. at 831. As the Supreme
Court stated in Nord,
Courts have no warrant to require administrators automatically to accord
special weight to the opinions of the plaintiff’s physician; nor may courts
impose on plan administrators a discrete burden of explanation when they
credit reliable evidence that conflicts with a treating physician’s evaluation.
Nord at 825, 834.

33

Furthermore, “there is nothing inherently improper with relying on a file review,
even one that disagrees with the conclusions of a treating physician.” Calvert v. Firstar
Fin. Inc., 409 F.3d 286, 297 n. 6 (6th Cir.2005). Nor is a plan administrator arbitrary and
capricious in relying on the opinions of doctors who did not examine Plaintiff over those
of his examining doctors. See Brown v. Federal Express Corp., 610 F. App’x 498, 505
(6th Cir. May 5, 2015). While the opinions of the claimant’s doctors may not be
summarily rejected, where, as here, reasons are given for adopting an alternative opinion
the plan administrator has not acted arbitrarily or capriciously. See Shaw v. AT & T
Umbrella Benefit Plan No. 1, 795 F.3d 538, 548-49 (6th Cir.2015). See also Curry v.
Eaton Corp., 400 F. App’x 51, 60 (6th Cir. 2010) (stating that while a plan administrator
may not simply choose to ignore a treating physician’s opinions, “it can resolve conflicts
between those opinions and the opinions of its own file reviewers if it provides reasons -including a lack of objective evidence -- for adopting the alternative opinions that are
consistent with its responsibility to provide a full and fair review.”)
“[W]hen a plan administrator chooses to rely upon the medical opinion of one
doctor over that of another in determining whether a claimant is entitled to ERISA
benefits,” the decision “cannot be said to have been arbitrary and capricious because it
would be possible to offer a reasoned explanation, based upon the evidence, for the plan
administrator’s decision.” McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161,
169 (6th Cir.2003). It does not matter that this choice is between a non-treating and a

34

treating physician. See Brown v. Federal Express, 610 F. App’x at 505 (citing Black &
Decker Disability Plan v. Nord, 538 U.S. at 825).
Further, although the Auto Club LTD Plan gave the administrator the right to
require Plaintiff to undergo a physical examination, it did not mandate that a physical
examination be performed. [See Plan, p. 42]. “[T]he failure to conduct a physical
examination -- especially where the right to do so is specifically reserved in the plan -may, in some cases, raise questions about the thoroughness and accuracy of the benefits
determination.” Calvert, 409 F.3d at 295. But “reliance on a file review does not,
standing alone, require the conclusion that [a plan administrator] acted improperly.” Id.
Plaintiff also asserts that Aetna erroneously disregarded the Social Security
Administration’s award of SSDI benefits to him. He contends that his SSDI award
conclusively establishes his total disability and his entitlement to continued benefits
under the Auto Club LTD Plan. Plaintiff is mistaken.
It is well-established that an ERISA plan administrator is not bound by an SSA
disability determination when reviewing a claim for benefits under an ERISA plan.
Whitaker v. Hartford Life and Acc. Ins. Co., 494 F.3d 947, 949 (6th Cir. 2005). As the
Supreme Court noted in Nord, entitlement to Social Security benefits is measured by a
uniform set of federal criteria. But a claim for benefits under an ERISA plan often turns
on the interpretation of plan terms that differ from SSA criteria. Id. Furthermore, the
Sixth Circuit has held that it is only a plan administrator’s failure to explain a decision

35

contrary to an SSA decision that may be indicative of an arbitrary and capricious
determination. Bennett v. Kemper Nat’l Servs, Inc. 514 F.3d 547, 553 n. 2 (6th Cir.
2008).
Aetna correctly explained in terminating Mendelblatt’s LTD benefits the reasons it
was not giving Plaintiff’s SSDI award significant weight. There are substantial
differences between the SSA’s and the Auto Club Plan’s working definitions of
disability. For example, the regulations governing eligibility for SSDI benefits provide
that when a claimant has established that he cannot perform “past relevant work,” the
burden shifts to the Secretary to show that other jobs that the claimant can perform are
available in the national economy. See 20 C.F.R. § 404.1520. Additionally, the
Medical-Vocational Guidelines allow for a presumption of disability based upon a
claimant’s age, prior work experience, education, and restriction to sedentary work. See
20 C.F.R. Pt. 404, Subpt. P., App. 2. The Auto Club LTD Plan contains no such
burden-shifting device or presumption of disability. Rather, as indicated above, under
the applicable definition of disability in the Auto Club Plan, to be entitled to LTD
benefits required establishing that Plaintiff was “not able to work at any reasonable
occupation.” [ Plan, p. 34.]
For all of the foregoing reasons, the Court finds that the Plan Administrator did not
act arbitrarily or capriciously in its consideration of, and its ultimate decision terminating
Plaintiff’s claim for Long-Term Disability Benefits as of November 26, 2013. To the

36

contrary, the Plan Administrator’s decision was both reasonable and rational in light of
the Plan provisions.
CONCLUSION
For all of the reasons stated above in this Opinion and Order,
IT IS HEREBY ORDERED that Defendant’s Motion for Entry of Judgment on the
Administrative Record [Dkt, # 24] is GRANTED and Plaintiff’s Motion for Entry of
Judgment under Wilkins [Dkt. 25] is DENIED.

s/Gerald E. Rosen
United States District Judge
Dated: February 22, 2016
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on February 22, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

37