Holmes v. Aetna Life Insurance Company et al

Filing 41

ORDER granting 32 defendants' Motion for Judgment on the administrative record and denying 31 plaintiff's Motion for Judgment on the administrative record. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PHILIP J. HOLMES,
CASE NO. 16-CV-11538
HON. GEORGE CARAM STEEH

Plaintiff,
v.
AETNA LIFE INSURANCE
CO. and UNITED PARCEL
SERVICES OF AMERICA
WELFARE PLAN,
Defendants.
________________________/

ORDER GRANTING DEFENDANTS’ MOTION FOR
JUDGMENT ON THE ADMINISTRATIVE RECORD (Doc. 32)
AND DENYING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE ADMINISTRATIVE RECORD (Doc. 31)

Plaintiff Philip J. Holmes alleges that defendants Aetna Life Insurance

Co. (“Aetna”) and the United Parcel Services of American Welfare Plan
(“the Plan”) wrongfully denied his claim for long term disability (“LTD”)
and/or short term disability (“STD”) benefits under an employee benefit plan
governed by the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1132(a)(1)(B). The parties filed cross motions for judgment on the
Administrative Record, which the court has duly considered. For the
reasons set forth below, defendants’ denial of Holmes’ claim for disability
benefits shall be AFFIRMED as Holmes’ claim is time-barred and
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defendants’ decision was not arbitrary and capricious where Holmes failed
to submit objective clinical medical information in support of his claim.
I. Findings of Fact
Holmes worked for United Parcel Service of America, Inc.(“UPS”) and
was covered under The Flexible Benefit Plan for employees of UPS (“the
Plan”). STD benefits were offered under a self-funded plan administered
by Aetna. LTD benefits provided under the Plan were insured by Group
Insurance Policy No. GP-839230-GID (“the Policy”), issued by Aetna to the
Policyholder, UPS.
Under the Plan and Summary Plan Description (“SPD”), Aetna was
designated as claims fiduciary and UPS as plan administrator. The Plan
provides that UPS has “the exclusive right and discretion to interpret the
terms and conditions of the Plan and to decide all matters arising with
respect to the Plan’s administration and operation (including factual
issues).” (AR 193). The Plan designates Aetna as the claims fiduciary for
benefits provided under the Policy, and grants Aetna full discretion and
authority to determine eligibility for LTD benefits and to construe and
interpret all terms and provisions of the Policy. (AR 145).
The STD plan provides for benefits for six months if Holmes is unable
to perform the material and substantial duties of his regular occupation.
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The Aetna policy provides for LTD benefits after the Elimination Period if
Holmes cannot perform the material duties of his own occupation, for the
first 24 months and then past 24 months if Holmes is unable to work at any
reasonable occupation. Benefits are payable to the maximum benefit
period, age 65, except that benefits for mental health or psychiatric
conditions are limited to 24 months.
For STD benefits, the Plan defines an employee as disabled when an
employee is “unable to perform the material and substantial duties of [his or
her] regular occupation because of an illness or injury.” (AR 119, 124). In
order to qualify for STD benefits, an employee must provide “objective
clinical medical information . . . that supports your disability.” (AR 119).
The Plan provides that STD benefits will be terminated if an employee fails
“to provide objective clinical documentation requested” by the
administrator. (AR 122,127).
The Plan provides for two levels of appellate review for the denial of
STD benefits: first, an employee has the right to file a first-level appeal with
Aetna within 180-days of the denial; and second, an employee may file a
second-level appeal with the UPS Claims Review Committee within 60days of denial of the first-level appeal. Any legal action must be filed within
six months from the date a determination is made.
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The Plan defines disability for LTD coverage as follows;
Test of Disability
From the date that you first became disabled and until monthly
benefits are payable for 24 months you meet the test of
disability on any day that:
* You cannot perform the material duties of your own
occupation solely because of an illness, injury or disabling
pregnancy–related condition.
(AR 1461) (emphasis in original). “Material duties” and “own occupation”
are defined as follows:
Material Duties
Duties that:
* Are normally needed for the performance of your own
occupation; and
* Cannot be reasonably left out or changed. However to be at
work more than 40 hours per week is not a material duty.
Own Occupation
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:
* For your specific employer; or
*At your location or work site; and
*without regard to your specific reporting relationship.
(AR 1475) (emphasis in original). The LTD policy also provides for benefits
of successive disabilities without a new Elimination Period, arising out of
the same or related impairments if within six months:
If You Become Disabled Again (Successive Disabilities)
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Once you are no longer disabled and your monthly benefit
payments have ended, any new disabilities will be treated
separately. However, 2 or more separate disabilities due to the
same or related causes will be deemed to be one disability and
only one Elimination Period will apply if your disability occurs
again within 6 months or less of continuous active work from
when the prior disability ended.
(AR 1463) (emphasis in original). The LTD policy also provides for
continuing LTD benefits if a person works at less than his or her predisability earnings while disabled. (AR 1462).
Holmes began working for UPS in 2004. On February 1, 2014,
Holmes began working as an On Road Supervisor. Prior to that, he worked
as an Industrial Engineer. The On Road Supervisor position had a physical
exertional rating of heavy as it required lifting, pushing and pulling
equipment and packages weighing up to 70 pounds and assisting in
moving packages up to 150 pounds. The position paid $71,808 per year.
Ten days after his promotion to On Road Supervisor, on February 11,
2014, Holmes applied for STD benefits based on his absence from work
beginning on February 4, 2014. Holmes had only been on the job as On
Road Supervisor for three days when he allegedly became disabled.
Holmes applied for benefits based on right ankle and foot and knee pain
which was related to right ankle triple fusion surgery he had ten years
earlier in 2004, as well as because of depression. Defendants awarded
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Holmes STD benefits from the period of February 4, 2014 until June 30,
2014. Holmes’ doctor indicated that he expected Holmes to return to work
on May 5, 2014. On June 23, 2014, Aetna told Holmes that it needed
updated records by June 30, 2014, or the claim would be closed. Aetna
then granted Holmes a one week extension to do so, but Holmes failed to
submit any additional records. Aetna cut off STD benefits on June 30,
2014 based on a lack of clinical evidence to support his continued
disability. Aetna’s letter cutting off disability benefits advised Holmes of his
right to appeal the decision within 180 days. On July 21, 2014, Holmes
timely appealed that decision. Aetna affirmed its denial by letter dated
October 2, 2014. That letter specifically advised Holmes of his right to seek
a second-level of appellate review within 60-days.
Holmes did not timely file a second-level appeal of that decision.
Holmes attempted to do so by filing a letter with Aetna 95-days later, on
January 5, 2015, which was outside the 60-day window for perfecting a
second-level appeal. Holmes’ attorney also attempted to submit further
untimely appeals in March and April, 2015. Holmes’ counsel’s March 13,
2015 letter requested certain Plan and claim documents. On April 2, 2015,
Aetna provided Holmes’ counsel with a copy of all documents relevant to
plaintiff’s STD claim, including a copy of the LTD plan and application and
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reiterated that requests for copies of the STD plan short documents needed
to be addressed to UPS. On April 27, 2015, Holmes’ counsel requested
Plan documents from UPS which UPS provided on May 19, 2015.
On June 19, 2015, the UPS Claims Review Committee upheld
Aetna’s decision that Holmes’ second-level appeal was time-barred. The
Committee notified Holmes that its denial was the Claims Review
Committee’s final decision and that any lawsuit under ERISA “must be filed
within six months of your having received this decision.” Holmes did not file
his lawsuit until ten months later on April 28, 2016.
On October 30, 2014, Holmes returned to work as a Financial
Analyst, a position meant to accommodate his physical limitations related
to his foot and ankle problems. That position paid $48,256 per year, about
$23,000 less than the On Road Supervisor position. Holmes did not file a
claim for residual disability benefits based on his decreased earnings as a
Financial Analyst. The new position was mostly sedentary, although during
peak season the position would be classified as medium, and required a
high level of cognitive ability, concentration, and judgment.
Forty days after beginning the position as Financial Analyst, on
December 9, 2014, Holmes applied for STD benefits a second time based
on stress, panic, and anxiety. (AR 1883-84). He later submitted
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documentation in support of that claim which also included information
about his foot and ankle pain related to osteoarthritis.1 In support of his
claim, he relied on the report of his psychiatrist, Dr. Chalakudy
Ramakrishna, who indicated that Holmes would be off work from December
9, 2014 to December 23, 2014. Aetna paid him STD benefits from
December 10, 2014 to December 23, 2014. Aetna required additional
documentation to support continued disability benefits beyond that date.
On January 20, 2015, Aetna informed Holmes that it was denying
benefits as of December 23, 2014 because of a lack of medical
documentation to support a disability beyond that date. On January 21,
2015, Holmes submitted additional documentation from his treating
psychologist, Dr. Allen Cushinberry, but Aetna found that documentation to
be deficient because it was not supported by clinical data. Holmes timely
appealed that decision twice in the two-level appeal process available to
him, and submitted additional documentation in support of his claim.
Among other things, Holmes relied upon progress notes from Dr.
Cushinberry and treating psychiatrists Dr. Leon Rubenfaer and Dr.
Ramakrishna, as well as reports from his family practice physician Dr.
Karman Zacharia, and documentation including MRIs and x-rays of his foot

1

Defendants submit that the STD claim was based on mental impairments
only and not the foot and ankle problems.
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and ankle problems. By letter dated September 25, 2015, Aetna denied
Holmes’ appeal of the denial of STD benefits. In reaching its decision,
Aetna relied on an independent peer review by a physician specializing in
physical medicine and rehabilitation/pain management, two physician
reviewers specializing in psychology, and a review by a physician
specializing in orthopedic surgery. The independent peer reviewers
determined that Holmes had failed to substantiate a functional/
psychological impairment that prevented him from performing his job
duties. They further found that although Holmes had a history of right foot
surgery and treatment, the clinical documentation did not provide abnormal
physical findings or diagnostic test results to support a functional
impairment that would prevent him from performing the core elements of
his job as Financial Analyst.
Holmes filed a second level appeal which was considered by the UPS
Claims Review Committee which upheld the denial of benefits. The
Committee considered the documentation submitted by Holmes and two
independent peer reviews by board certified doctors in psychiatry and
orthopedic surgery. The Committee found that Holmes’ documentation as
to his mental limitations consisted primarily of his own subjective
complaints and lacked sufficient clinical findings, test results, observed
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behaviors or other information to document his complaints and to
sufficiently address his ability to function in the workplace. The Committee
criticized Holmes’ application for benefits because there were insufficient
clinical findings to support his claim, and he failed to document his claims
of emotional distress with any formal neuropsychological testing.
On April 16, 2015, Holmes filed a claim for LTD benefits which Aetna
denied by letter dated September 25, 2015, for lack of supporting
documentation effective June 10, 2015. Holmes timely appealed the denial
twice, and both times Aetna affirmed the denial of Holmes’ claim for LTD
benefits based on a lack of supporting documentation as there were no
formal mental status examinations or standardized clinical data over time.
In addition, although the independent doctor who reviewed Holmes’ claims
of pain in his left foot and ankle confirmed Holmes would have some
limitations in standing, walking and lifting, he determined that these
restrictions would not limit Holmes in performing the sedentary duties of
Financial Analyst. In addition, two independent peer review physicians, Dr.
Philp Marion, a pain management specialist, and Dr. Martin Mendelssohn,
orthopedic surgeon, determined that Holmes’ ankle and foot impairment
would not prevent him from performing medium work. Aetna affirmed the
denial of Holmes’ claim for LTD benefits on March 17, 2016. On May 5,
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2016, Aetna received Holmes’ second appeal of the denial of LTD benefits
and Aetna affirmed the denial of LTD benefits on August 19, 2016. Holmes
filed the instant lawsuit on April 28, 2016.
II. Standard of Review
This matter is before the court on the parties’ cross motions for entry
of judgment on the Administrative Record. A district court reviewing a
decision regarding benefits under ERISA is to “conduct a . . . review based
solely upon the administrative record, and render findings of fact and
conclusions of law accordingly.” Wilkins v. Baptist Healthcare Sys., Inc.,
150 F.3d 609, 619 (6th Cir. 1998). The court may consider the parties’
analysis of the evidence, but may not admit or consider any evidence not
presented to the administrator. Id.
When a benefits plan accords discretionary authority to the claims
administrator to make determinations with respect to benefits eligibility, the
administrator’s determination is subject to the “arbitrary and capricious”
standard of review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
107 (1989). Holmes does not dispute that the discretionary standard of
review applies to his STD claim to the extent that claim is relevant to the
court’s analysis. Here, there is no dispute that the ERISA plan at issue
vests the plan administrator discretion in interpreting the terms of the plan
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and in making benefits determinations. Nevertheless, Holmes argues that
the de novo standard of review should apply to his claim for LTD benefits
because Michigan law prohibits discretionary grants of authority for all
policies issued after June 1, 2007 pursuant to Mich. Adm. Code §
500.2202. Michigan law, however, does not govern this matter as the
policy provides that Georgia law applies.
Application of Georgia law is appropriate under the policy’s choice of
law provision and conflict of law analysis because the master group policy
was issued to UPS, a corporation with its principal place of business in
Georgia, and was delivered in Georgia. Michigan’s Insurance Code does
not apply to master policies “issued to an employer in another state for the
benefit of employees residing in this state.” Mich. Comp. Laws. §
500.402b(d). Accordingly, Georgia law applies, the discretionary grant of
authority to the plan administrator to determine eligibility for benefits is
enforceable, and thus, the arbitrary and capricious standard of law governs
this court’s analysis of whether defendants’ denial of benefits shall be
affirmed.
Under this standard, the administrator’s plan interpretation and
benefits determination can be overturned only upon a showing of internal
inconsistency, bad faith, or some other ground calling such determination
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into question. Davis v. Kentucky Fin. Cos. Ret. Plan, 887 F.2d 689, 695
(6th Cir. 1989). “’[W]hen it is possible to offer a reasoned explanation,
based on the evidence, for a particular outcome, that outcome is not
arbitrary and capricious.’” Williams v. Int’l Paper Co., 227 F.3d 706, 712
(6th Cir. 2000) (quoting Davis, 887 F.2d at 693). Plaintiff bears the burden
of proving that defendants’ denial of benefits was arbitrary and capricious.
Farhner v. United Transp. Union Discipline Income Prot. Prog., 645 F.3d
338, 343 (6th Cir. 2011). Under this standard, a reviewing court should
“uphold the plan administrator’s decision ‘if it is the result of a deliberate,
principled reasoning process and if it is supported by substantial
evidence.’” Cooper v. Life Ins. Co., 486 F.3d 157,165 (6th Cir. 2007)
(quoting Glenn v. MetLife Ins. Co., 461 F.3d 660, 666 (6th Cir. 2006)).
Substantial evidence supports a plan administrator’s decision if the
evidence is “`rational in light of the plan’s provisions.’” Univ. Hosps. Of
Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 (6th Cir. 2000) (quoting
Yeager v. Reliance Std. Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996)).
The arbitrary and capricious standard is highly deferential but does not
require the court to merely rubber stamp the administrator’s decision.
Glenn, 461 F.3d at 666.

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Holmes argues that Aetna has a conflict of interest which requires the
court to consider that factor in determining whether there has been an
abuse of discretion. MetLife Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008);
Judge v. MetLife Ins. Co., 710 F.3d 651, 663-64 (6th Cir. 2013). The Sixth
Circuit has held that the court may consider an inherent conflict of interest
that may exist when a plan administrator both decides what benefits are
covered and pays those benefits. See Peruzzi v. Medical Summa Plan,
137 F.3d 431, 433 (6th Cir. 1988) (plan administrator’s inherent conflict
weighed when applying abuse of discretion standard). This requirement
only applies, however, when there is “significant evidence” that the insurer
was motivated by self-interest. Cooper v. Life Ins. Co. of N. Am., 486 F.3d
157, 165 (6th Cir. 2007). Holmes has not come forward with significant
evidence that Aetna’s decision denying Holmes’ application for disability
benefits was motivated by self-interest. Even if Holmes could demonstrate
that Aetna has a conflict of interest, its decision was not arbitrary and
capricious.

A.

III. Analysis & Conclusions of Law
Holmes’ ERISA Denial of Benefits Claims for his Alleged
Inability to Perform On Road Supervisor Position is TimeBarred
Defendants contend that Holmes’ claim for STD benefits must be

denied because he failed to exhaust his administrative remedies, and this
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lawsuit is time-barred because Holmes did not file his Complaint within six
months of the final decision by the UPS Claims Review Committee. In his
response, Holmes concedes that he did not timely file his second-level
administrative appeal of the denial of his original claim for STD benefits.
Thus, he states that he is not pursuing the six-week balance of benefits
under his first STD claim. Holmes responds that he is only pursuing a
claim for LTD benefits.
Holmes asserts that when he returned to work in the Financial
Analyst position for 40-days, he ceased working again for the same reason
that he stopped working the prior February: ankle/foot impairment and
depression and anxiety. Holmes claims that his second claim for STD
benefits should have been construed as a claim for LTD benefits because it
arose out of the same conditions as his original STD claim. He argues that
there was only one disabling condition and thus, should have been one
Elimination Period only. His STD claim arose on February 4, 2014 and
thus, Holmes contends it should have terminated 180-days later on August
4, 2014 when LTD benefits should have begun.
Holmes’ position that both his STD and LTD claims were based on
one continuous period of disability is fatal to his ERISA denial of benefits
claims here. The Summary Plan Description (“SPD”) is unequivocal that
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LTD benefits are only available to employees “who have exhausted their
STD benefits,” in other words, who are “no longer eligible to receive STD
benefits because [they] have received the maximum STD benefit available
under the Plan.” (AR 124). The SPD further provides, “If your STD
benefits are denied for any reason prior to receiving the maximum benefit,
you have not ‘exhausted’ your STD benefits and you are not eligible for
LTD benefits.” Id. Because Holmes’ claim for STD benefits was
terminated prior to his receiving the maximum benefit, he did not exhaust
his STD benefits, and was not eligible for LTD benefits.
Holmes argues that the SPD’s requirement that a participant first
exhaust STD benefits before he is eligible for LTD benefits is not
enforceable because it allegedly conflicts with the Plan. While Holmes is
correct that the Plan specifically provides that in the event of a conflict
between the SPD and the Plan, the Plan controls (Plan, § 5.03, AR 188), it
is not clear that there is any conflict. The Plan provides that “All claims for
benefits under the Plan shall be made, processed and paid in accordance
with the terms and conditions of the SPD.” (Plan, § 5.06(b), AR 189). The
Plan further provides:
5.07 Claims Procedure and Appeal of Benefit Denials. The
process by which a claim for benefits shall be handled by the
Committee and the process by which a participant may appeal
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the denial of a claim for benefits are set forth in the SPD and
incorporated herein by reference.
(Plan, § 5.07, AR 189).
Holmes argues that he need not exhaust his STD benefits under the
Aetna LTD policy, but need only be disabled for the Elimination Period.
Specifically, Holmes relies on the following provisions set forth in the
Booklet-Certificate2:
Long Term Disability Benefit Eligibility
You will be considered disabled while covered under this Long
Term Disability (“LTD”) Plan on the first day that you are
disabled as a direct result of a significant change in your
physical or mental conditions and you meet all of the following
requirements:
*
You must be covered by the plan at the time you become
disabled; and
*
You must be under the regular care of a physician. You will be
considered under the care of a physician up to 31 days before you
have been seen and treated in person by a physician for the illness,
injury or pregnancy-related condition that caused the disability; and
*
You must be disabled by the illness, injury, or disabling
pregnancy-related condition as determined by Aetna (see Test of
Disability).
When Benefits Are Payable

2
 The Booklet-Certificate

“is part of the Group Insurance Policy between
Aetna Life Insurance Company and the Policyholder. . . . Aetna agrees
with the Policyholder to provide coverage in accordance with the
conditions, rights, and privileges as set forth in th[e] Booklet-Certificate.”
(AR 1455).

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Once you meet the LTD test of disability, your long term
disability benefits will be payable after the Elimination Period, if
any, is over. No benefit is payable for or during the Elimination
Period. The Elimination Period is the amount of time you must
be disabled before benefits start. The Elimination Period is
shown in the Schedule of Benefits.
(AR 1460) (emphasis in original). The Elimination Period as set forth in the
Schedule of Benefits is defined as “The first 26 weeks of a period of
disability or later of the exhaustion of STD benefits.” (AR 1493). Because
it is undisputed that Holmes never exhausted his STD benefits, the first
definition of the Elimination Period applies and Holmes must satisfy the 26week Elimination Period. Holmes argues that he was disabled because of
the foot/ankle and mental impairments as of February 4, 2014 at which time
he could no longer perform the On Road Supervisor position. Holmes
argues that his Elimination Period ended on Monday, August 4, 2014 at
which time he alleges LTD benefits would begin.
The next question is whether Holmes may challenge the denial of his
second request for STD benefits here. To the extent he claims he could
not perform the duties of On Road Supervisor, Holmes is time-barred from
pursuing such a claim. While ERISA does not provide a statute of
limitations period for denied benefit claims, the Sixth Circuit has held that a
limitations period set forth in the Plan itself may be enforced where the
period is reasonable. See Med. Mut. of Ohio v. K. Amalia Enters., 548 F.3d
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383, 390 (6th Cir. 2008). The Sixth Circuit has found that UPS’s six-month
limitations period is reasonable, and has affirmed the dismissal of an
employee’s claim for benefits brought outside the six-month window.
Claeys v. Aetna Life Ins. Co., 548 F. App’x 344, 346 (6th Cir. 2013).
Here, Holmes concedes that his second claim for STD benefits
brought in December, 2014, was really a continuation of his original STD
claim brought in February, 2014, as it arose out of the same physical and
mental conditions which allegedly disabled him in the first place. Thus,
Holmes contends that in determining whether defendants wrongfully denied
him LTD benefits, this court should consider his position as the On Road
Supervisor and not the Financial Analyst position he was assigned to in
December, 2014 at the time he filed his second STD claim. Holmes claims
he was still disabled from the On Road Supervisor position and accepted
the Financial Analyst position as an accommodation. But when Holmes
returned to work as a Financial Analyst, Holmes never informed defendants
that he was continuing to seek disability benefits for his inability to perform
the On Road Supervisor position at the time he filed his second STD claim.
When he returned to work in October, 2014 as a Financial Analyst, he did
not file a claim for residual benefits at that time. Also, when he filed his
claim for STD benefits in December, 2014, he listed his occupation as
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Financial Analyst, not On Road Supervisor, and listed his first day of
absence as December 10, 2014, not the February 4, 2014 date he now
claims was the onset of his disability.
Holmes argues that there was only one disabling condition and thus,
should have been one Elimination Period only under the Plan’s successive
disabilities provision which provides:
If You Become Disabled Again (Successive Disabilities)
Once you are no longer disabled and your monthly benefit
payments have ended, any new disabilities will be treated
separately. However, 2 or more separate disabilities due to the
same or related causes will be deemed to be one disability and
only one Elimination Period will apply if your disability occurs
again within 6 months or less of continuous active work from
when the prior disability ended.
(AR 1463). Defendants dispute that the successive disabilities provision
would apply characterizing the February, 2014 application as arising solely
out of Holmes’ foot and ankle impairment, and the December, 2014
application arising solely out of Holmes’ depression and mental impairment.
Having reviewed the Administrative Record, the court determines that
Holmes is correct and both benefit applications arose out of both physical
and mental impairments. But it would not be clear to defendants that
Holmes was claiming the same disability in his second STD application or
that defendants should have construed that application as a disability
based on his On Road Supervisor position. On his second STD
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application, Holmes identified his occupation at the time of disability as
Financial Analyst, described his position as sedentary, identified his
disability as stress, panic and anxiety, and stated that his first date of
absence was December 10, 2014. (AR 1883-84). Because Holmes did not
identify his position at the time of the onset of his disability as On Road
Supervisor (AR1883), defendants were not on notice that was the basis for
his second STD application and Holmes cannot recover on that theory now.
In addition, even if Holmes’ second STD application could be
construed as a claim for disability with an onset date of February 4, 2014
when he was last employed as an On Road Supervisor, that claim is timebarred. Holmes cannot circumvent the limitations period for bringing an
ERISA claim as set forth in the Plan by refiling a duplicative claim based on
the same uninterrupted disability later. Such a result would unravel the
entire administrative process for the adjudication of claims by allowing
participants to default on their appellate rights, miss the filing deadline for
bringing an ERISA suit, and merely refile the same claim again. Holmes’
remedy if defendants wrongfully denied his claim for STD benefits related
to the On Road Supervisor position was to pursue his administrative
appellate remedies. Holmes failed to do so. Accordingly, Holmes’ ERISA

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claim for the denial of benefits as On Road Supervisor must be dismissed
as time-barred.
The Administrative Record in this case is complex so the court
attempts here to summarize Holmes’ three applications for disability
benefits. First, he applied for STD benefits on February 11, 2014 claiming
that his ankle/foot impairment and depression prevented him from
performing the On Road Supervisor position – a position he held for three
days prior to going off work. He does not dispute that he is time-barred
from seeking review of that claim. Second, he filed a second claim for STD
benefits on December 9, 2014 claiming that his ankle/foot and depression
and anxiety prevented him from performing the Financial Analyst position.
In the papers pending here, Holmes asserts that the December, 2014 STD
application should be construed as an application for LTD benefits arising
out of his alleged inability to perform the On Road Supervisor position.
Such a claim would be redundant of his original STD benefit claim. Holmes
cannot circumvent the statute of limitations period which applied to his
original STD claim by refiling the same claim outside the limitations period.
Thus, his second STD claim to the extent it is based on his occupation as
On Road Supervisor is also time-barred.

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Third, Holmes filed a claim for LTD benefits on April 16, 2015
claiming that his occupation was the On Road Supervisor position. At the
time Holmes filed his LTD benefits claim, he had not worked as an On
Road Supervisor for over fourteen months and had not exhausted his STD
benefits. Holmes asserts that the Elimination Period ended on August 4,
2014. But the Plan requires that a claim for LTD benefits be filed within 90days after the end of the Elimination Period. (AR 1471). Holmes failed to
file his claim for application in that time period. Thus, Holmes’ claim for
LTD benefits for his alleged inability to work as On Road Supervisor is also
time-barred.
The court recognizes that defendants denied Holmes’ April, 2015
application for LTD benefits on the merits and not as untimely. However,
defendants construed his claim for LTD benefits as arising out of his
occupation of Financial Analyst position, and not his position as On Road
Supervisor. Significantly, at the time Holmes filed his second STD claim for
his absence beginning on December 10, 2014, he had been performing the
position of Financial Analyst for over a month yet it had been over ten
months since he last performed the On Road Supervisor position, a
position that he only held for three days. On his second STD application,

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he did not even identify the On Road Supervisor position as the occupation
he was performing when his disability began.
In the papers now before this court, Holmes has represented that he
bases his disability claim here on his occupation as On Road Supervisor.
In support of this claim, he argues that there is no durational requirement
that he occupy the On Road Supervisor position for more than three days
in order for that job classification to govern his application for disability
benefits. He cites to a number of cases for the proposition that the court
cannot consider an employee’s inability to perform the accommodated
position but must consider the position held at the onset of the disability.
Those cases primarily involve an employee with a long career in a
certain position who is later transferred to a temporary position meant to
accommodate a disability. See Lehman v. Exec. Cabinet Salary
Continuance Plan, 241 F. Supp. 2d 845, 848 (S.D. Ohio 2003) (plaintiff’s
“regular occupation” at time of disability was executive secretary position
which she held for over 25 years before defendant transferred her to
temporary position meant to accommodate her disability); Peterson v.
Continential Cas. Co., 77 F. Supp. 2d 420, 422-24, 427 (S.D.N.Y. 1999)
(plaintiff’s “regular occupation” at time of disability was the position he had
held for many years prior to his transfer to a temporary position meant to
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accommodate his disability). Those cases are inapposite as Holmes’ claim
for benefits arising out of his alleged disability with an onset date of
February 4, 2014 is clearly time-barred.
However, Holmes argues in the alternative, that even if he did not
have one continuous disability, he has shown that he was disabled from
performing the Financial Analyst position beginning in December, 2014. If
Holmes’ disability relates solely to his alleged inability to perform the
Financial Analyst position beginning in December, 2014, that claim would
not be time-barred. Given Holmes’ alternative pleading, the court next
considers whether the denial of benefits based on the Financial Analyst
position was arbitrary and capricious.
B.

Defendants’ Denial of Benefits Was Not Arbitrary and Capricious
Defendants’ decision that Holmes’ ankle and foot problems and

anxiety and depression would not prevent him from performing the
sedentary Financial Analyst position is reasonable, based on substantial
evidence, and is not arbitrary and capricious. Holmes argues pain in his
foot/ankle and depression and anxiety would have prevented him from
performing the Financial Analyst position. The court considers the alleged
physical and mental impairments below.

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First, as to Holmes’ complaints of foot and ankle pain, defendants
employed a pain management peer reviewer, Dr. David Hoenig, who
considered the documentation provided by Holmes. The reviewer found
that there were restrictions and limitations resulting in a functional
impairment from December 10, 2014 through September 19, 2015.
Specifically, Dr. Hoenig found that Holmes could stand and walk up to two
hours, could occasionally lift and carry 50 pounds, could frequently lift and
carry up to 25 pounds, can occasionally crawl, but could never climb,
stoop, kneel, or crouch. (AR 1490). Because the Financial Analyst
position was determined to be a sedentary position as determined by a
vocational specialist, defendants determined that Holmes could have
completed the duties of his Financial Analyst position despite the verified
limitations posed by his foot/ankle impairment. Holmes contends that the
Financial Analyst position was a medium exertional position which would
require him to bend, stoop/squat, crouch, kneel, climb stairs and walk
intermittently throughout the work day, work varying shifts and additional
hours and/or overtime, grasp, lift (from floor to shoulder height), push, pull,
carry and manipulate equipment, packages or parts, and perform complex
mental work requiring judgment and concentration. To support these
alleged job requirements, Holmes relies on a description of a number of
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sedentary type administrative positions, (AR 1311) but that document does
not specifically identify the position of Financial Analyst.
According to Holmes’ own STD application, his position was
sedentary (AR 1883-84), and in his application to another insurer, he
described his position as involving 99 percent sitting, .5 percent standing,
and .5 percent walking. (AR 1615). The Administrative Record is clear that
the Financial Analyst position was classified as primarily sedentary but
occasionally medium physical exertional level during peak season. (AR
983, 1803, 1964, 2006). Holmes relies on the Dictionary of Occupation
Titles for the definition of medium work which is defined as requiring
“exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of
force frequently, and/or greater than negligible up to 10 pounds of force
constantly to move objects).” (Doc. 31, Ex. 9 at 5-6). Even under the
occasionally medium classification, Holmes has not shown that his foot and
ankle impairment would prevent him from carrying out the duties of
Financial Analyst.
Defendants’ independent peer reviewers Dr. Martin Mendelssohn, an
orthopedic surgeon, and Dr. Philip Marion, a specialist in pain
management, considered Holmes’ alleged foot and ankle impairment and
found that his physical limitations in this area would not prevent Holmes
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from medium work. (AR 970-975, 1127-1130). Specifically, Dr. Marion
found that:
Mr. Holmes’ assertion of function/occupation incapacity as a
result of a physical impairment is not supported by the clinical
records. Regarding his right ankle, Mr. Holmes underwent a
triple arthrodesis years ago and subsequently resumed his
regular occupation. Radiological studies do no demonstrate
evidence of acute or recurrent disease. Physical examination is
without significant change noting the expected decreased range
of motion consistent with the prior surgery. However, Mr.
Holmes remains fully ambulatory without the use of an assistive
device. . . . In addition, his complaints of severe pain were
inconsistent with his reported non-use of analgesic
medications. . . . From a physical medicine and
rehabilitation/pain management perspective as well as
reasonable medical certainty, there remains no specific
underlying objective physical impairment precluding full time
medium capacity for the time period under review.
(AR 974-75).
Holmes argues that all of the examining physicians concluded that he
could not perform the On Road Supervisor position, but Holmes relies
primarily on his family practice physician Dr. Zakaria to support his claim
that his foot and ankle impairment would have prevented him from
performing sedentary work on a sustained basis. The court has reviewed
Dr. Zakaria’s report and it is not clear that his diagnosis of osteoarthritis of
the right foot and ankle would constitute a disabling condition which would
prevent Holmes from performing a sedentary position. Dr. Zakaria’s
conclusions were not based solely on Holmes’ physical impairment, but
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were based on his conclusions about Holmes’ depression. (AR 422-26). It
is unclear from Dr. Zakaria’s report whether he was concluding that
Holmes’ foot and ankle pain, standing alone, would have prevented him
from performing the duties of Financial Analyst. His report suggests it was
only the combination of physical and mental impairments which prevented
him from performing sedentary work. In other words, Dr. Zakaria’s opinion
is not necessarily in conflict with defendant’s reviewing physician’s
determination that his foot and ankle pain would not disable him from
performing sedentary work or even medium work. Under these
circumstances, the court need not give greater weight to Holmes’ treating
physician than to the conclusions of defendants’ reviewing physicians. See
Evans v. UNUM Provident Corp., 434 F.3d 866, 877 (6th Cir. 2006). In
sum, defendants’ determination that Holmes’ foot and ankle impairment
would not prevent him from performing the sedentary Financial Analyst
position with occasional medium work during peak season, is supported by
substantial evidence.
Second, the court considers the reasonableness of defendants’
determination that Holmes’ mental impairments would not prevent him from
carrying out the functions of the Financial Analyst position. Defendants’
determination that Holmes’ anxiety and depression was not so severe as to
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render him disabled from work was not arbitrary and capricious where
Holmes’ treating psychologists failed to support their conclusions with
objective clinical evidence. Over the course of Holmes’ application for LTD
benefits and two levels of administrative appellate review, five independent
peer reviewers considered the reports submitted by Holmes’ treating
psychologists and psychiatrists and concluded that they failed to support
his claim of disability.3 The reviewing psychologists and psychiatrists noted
there was no objective documentation nor did Holmes’ treating
psychologists and psychiatrists administer “a formal mental status
examination, or standardized and quantitate clinical data over time to
substantiate evidence of cognitive decline, deficits or improvement.” (AR
808). The Sixth Circuit has held that it is reasonable for a claim
administrator to require objective evidence of a claimant’s disability. See
Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 166 (6th Cir. 2007). In
their letter denying Holmes’ appeal of the denial of LTD benefits, Aetna
noted that Holmes “has a long history of mental illness and has maintained
employment. There was no evidence of a significant change or even
evidence that he attended group therapy as recommended.” (AR 808).

3

Dr. Register, Psy.D.; Dr. Olivares, M.D., Board Certified in Psychiatry; Dr.
Heydebrand, Ph.D, Clinical Psychology and Neuropsychology; Dr.
Shallcross, Psy.D., Clinical Psychology and Neuropsychology; and Dr.
Gay, Psy.D., Psychology and Neuropsychology.
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One of the independent psychologists, Dr. John Shallcross, reviewed
documentation submitted by Holmes, and interviewed Holmes’ treating
psychiatrist, Dr. Cushinberry. He summarized his telephone conversation
with Dr. Cushinberry as follows:
In my conversation with Dr.Cushinberry, he noted that the
claimant’s appearance was not as good as previously but he
was not to the point of being disheveled or malodorous. His
mood was guarded but calm. His attention and concentration
were “okay.” The doctor noted that the claimant’s mental status
overall was “depleted a little bit” but okay. The claimant was
upset by his financial problems and by his situation with his
employer as well as his physical condition, but it has not b[een]
established that these stressors would result in a mental and
nervous condition that would preclude work capacity or
significantly restrict and limit functionality in regards to the
claimant’s mental and nervous state.
(AR 901). Dr. Shallcross also found that the lack of a referral or
consideration of any higher level of care was inconsistent with a mental and
nervous condition that was of a severity to keep Holmes out of work for
over a year. (AR 901). Defendants found that there were inconsistencies
in terms of the documented chronicity and severity of depression and
stress as compared to Holmes’ level of care. (AR 808).
The court recognizes that mental illness is not easily quantified by
objective testing, but the independent psychologist’s conclusions here were
not simply based on a lack of objective evidence. Dr. Shallcross did more
than simply perform peer review of documentation submitted by Holmes’
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treating physicians. Dr. Shallcross interviewed Dr. Cushinberry and the
results of that telephonic conversation were that Dr. Shallcross determined
his anxiety and depression would not preclude him from work. Also, Aetna
provided Holmes’ treating psychiatrists, Dr. Ramakrishna and Dr.
Cushinberry with a copy of the independent psychologist’s assessment
concluding Holmes was not totally disabled, and neither responded.
Likewise, neither responded to his phone calls in early June, 2016.
Holmes claims that one of his doctors reported that he had a panic
attack during an office visit. In fact, his doctor merely checked a box on a
form that he had observed an attack, but there was no description of the
duration, severity, or frequency of panic attacks that could be used to
assess Holmes’ functional capacity.
Having reviewed the Administrative Record, the court finds that
defendants’ decision that Holmes was not disabled was supported by the
independent doctors’ opinions which were rational under the
circumstances. The reviewing psychologists rejected his treating
psychologist’s opinions of total disability as their opinions were not
supported by objective clinical testing or evidence, were inconsistent with
characteristics of depression, and did not comport with the standard of care
which would have required a change in treatment where Holmes’ condition
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showed no improvement over the course of a year. Accordingly,
defendants’ denial of Holmes’ claim for LTD benefits based on his disability
from the Financial Analyst position shall be AFFIRMED because it is
supported by substantial evidence.
C.

Whether Defendants’ Denial of Benefits was Arbitrary and
Capricious Because Defendants Failed to Provide Plan
Documents
According to the First Amended Complaint, defendants are liable for

failing to provide Plan documents. Specifically, Count I avers that
defendants are liable under 29 U.S.C. § 1132(c) which requires that a Plan
Administrator produce certain Plan documents upon request. Count II
alleges that “Defendant breached its fiduciary duties to Plaintiff by not
providing the STD Plan and full information on the Plan and appeal
requirements.” (Am. Complaint ¶ 35). Count IV alleges that “Defendant
failed to produce its full STD Plan, the Summary Plan Description and/or
the Short Term Disability Policy in response to Plaintiff’s request.” (Am.
Complaint ¶ 40). Defendants correctly argue that Aetna cannot be liable
for failing to produce Plan documents as it was the Plan fiduciary, not the
Plan administrator. See Caffey v. Unum Life Ins. Co., 302 F.3d 576, 584
(6th Cir. 2002). Holmes has not responded to this argument. In addition,
the Administrative Record supports a finding that on April 2, 2015, Aetna
provided Holmes with all documents relevant to his claim, including a copy
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of the LTD plan, and directed requests for other Plan documents to UPS.
(AR 469-71). Specifically, Aetna relies on a letter written to Holmes’
counsel on that date which states, “Per your request, we have enclosed all
documents relevant to your client’s STD claim to which you are entitled
under the Department of Labor (DOL) regulations, including a copy of the
LTD plan and application.” (AR 469). That letter further provided, “Please
be advised that Plan documents will be provided at no cost. However, this
Information must be requested from UPS, since UPS retains the
responsibility for providing Plan documents.” Id. That letter advised
Holmes’ attorney of the exact address for UPS where any request for Plan
documents should be sent. Id. The Administrative Record also supports a
finding that UPS provided the STD Plan, the Summary Plan Description
and the Short Term Disability Policy on May 19, 2015 and November 16,
2015. (AR 1583, 2054).
In his Reply brief, Holmes argues that he was unaware of the
successive disabilities and working while disabled provisions of the Aetna
policy, although he asked for same on October 16, 2015. The
Administrative Record is clear that the UPS Claims Review Committee
received and responded to that request. (AR 1583). Based on a review of
the Administrative Record, Holmes’ argument that he did not receive
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requested Plan documents lacks merit and his claim for relief based on
such an alleged omission must be denied. Accordingly, defendants cannot
be liable for allegedly failing to produce Plan documents.
IV. Conclusion
For the reasons set forth above, Holmes’ claim for the denial of
ERISA benefits is DENIED as time-barred. To the extent his claim for
disability benefits arises out of his alleged inability to perform the position of
Financial Analyst and is not time-barred, defendants’ determination that his
condition did not disable him from that position is not arbitrary and
capricious and is AFFIRMED. Holmes’ motion for judgment on the
administrative record (Doc. 31) is DENIED and defendants’ motion for
judgment on the administrative record (Doc. 32) is GRANTED.
Defendant’s request that the court strike Holmes’ exhibits is DENIED AS
MOOT as any consideration of those exhibits does not alter the court’s
conclusions here.
IT IS SO ORDERED.
Dated: June 20, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 20, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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