Kennedy V. Aetna Insurance Company et al

Filing 71

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants Aetna Life Insurance Company and Countrywide Financial Corporation's Motion for Summary Judgment (Doc. #40) is GRANTED. IT IS FURTHER ORDERED that plaintiff Geoffrey L. Kenn edy's Motion for Summary Judgment (Doc. #51) is DENIED. Judgment shall be entered accordingly. Granting 40 Motion for Summary Judgment; Denying 51 Motion for Summary Judgment. Signed by Magistrate Judge Frederick R. Buckles on 5/22/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEOFFREY L. KENNEDY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
et al.,
Defendants.

No.

4:10CV1436 FRB

MEMORANDUM AND ORDER
Presently pending before the Court are the parties’
cross-motions for summary judgment. All matters are pending before
the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff brings this cause of action pursuant to the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001,
et

seq.,

Financial

alleging

that

Corporation,

his

and

employer,

the

defendant

administrator

of

Countrywide
its

employee

benefit plan, defendant Aetna Life Insurance Company, wrongfully
terminated his short term disability benefits to which he was
entitled under the plan.
wrongful

termination

of

Plaintiff also alleges that defendants’
his

short

term

disability

benefits

precluded him from applying for and receiving long term disability
benefits, to which he claims he was also entitled.

Plaintiff seeks

recovery of short term disability benefits for the remainder of the
period during which he claims he was eligible for such benefits,

recovery of long term disability benefits from the date upon which
he claims he would have otherwise been eligible to receive such
benefits, and recovery of his attorney’s fees and costs incurred in
this action.
Plaintiff and defendants now move for summary judgment,
arguing that there are no genuine issues of material fact and that
they are each entitled to judgment as a matter of law.

The parties

have responded to their opponent's motion, to which each have
replied.
Pursuant to Fed. R. Civ. P. 56(c), a court may grant
summary judgment if the information before the court shows that
there are no material issues of fact in dispute and that the moving
party is entitled to judgment as a matter of law.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

Anderson v.

The burden of proof

is on the moving party to set forth the basis of its motion,
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the court
must view all facts and inferences in the light most favorable to
the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587 (1986). Once the moving party shows there are no
material issues of fact in dispute, the burden shifts to the
adverse party to set forth facts showing there is a genuine issue
for trial.
pleadings,

Id.
but

The non-moving party may not rest upon its
must

come

forward

with

admissible evidence to rebut the motion.

-2-

affidavits

or

other

Celotex, 477 U.S. at 324.

“[T]he filing of cross motions for summary judgment does not
necessarily indicate that there is no dispute as to a material
fact, or have the effect of submitting the cause to a plenary
determination on the merits.”

Wermager v. Cormorant Twp. Bd., 716

F.2d 1211, 1214 (8th Cir. 1983).

Instead, each summary judgment

motion must be evaluated separately on its own merits to determine
whether a genuine issue of material fact exists and whether the
movant is entitled to judgment as a matter of law.

Husinga v.

Federal–Mogul Ignition Co., 519 F. Supp. 2d 929, 942 (S.D. Iowa
2007).
I.

General Background

Defendant Aetna Life Insurance Company (Aetna) is an
administrator and the insurer of defendant Countrywide Financial
Corporation’s (Countrywide’s) short term disability plan (STD Plan)
and long term disability plan (LTD Plan), governed by ERISA.

The

Plan(s) give Aetna, as administrator, discretionary authority to
determine whether and to what extent employees and beneficiaries
are entitled to benefits; and further provide that Aetna, as
insurer, will pay the claims.

Effective June 6, 2008, plaintiff

Geoffrey L. Kennedy, a Countrywide employee, was granted an initial
period

of

short

term

disability

benefits

following a diagnosis of Parkinson’s disease.

under

the

STD

Plan

Aetna subsequently

determined the medical evidence not to establish a functional
impairment sufficient to preclude plaintiff’s performance of the

-3-

material duties of his employment with Countrywide and terminated
plaintiff’s short term disability benefits effective September 25,
2008.

Plaintiff administratively appealed this determination.

On

November 13, 2009, after consideration of additional evidence,
Aetna affirmed its previous decision to terminate benefits.
In the meanwhile, Aetna informed plaintiff on June 11,
2009, that he was not eligible to receive long term disability
benefits under the LTD Plan and that his claim for such benefits
was closed.
Plaintiff filed the instant cause of action in this Court
on August 6, 2010, challenging defendants’ termination of his short
term disability benefits, the denial of long term disability
benefits, and the processes used in such determinations.
II.

Evidence Before the Court on the Motions

In determining the instant motions for summary judgment,
the Court has reviewed the evidence and information submitted in
support of the parties’ respective positions and finds there to be
no genuine issues of material fact in dispute.1

1

A recitation of

Specifically, the Court has reviewed and considered the
exhibits and information submitted in support of defendants’
Statement of Uncontroverted Material Facts (Doc. #41, Doc. #41(16), Doc. ##44-50), and in support of plaintiff’s Statement of
Uncontroverted Material Facts (Doc. #51-1, Doc. #55, Doc. #55(125)).
The Court also reviewed and considered the affidavit of
plaintiff Geoffrey L. Kennedy (Doc. #56-1), as well as defendants’
exhibits submitted in support of their reply brief (Doc. #59(1-2)).
Although the Court reviewed such evidence and exhibits in their
entirety, specific reference is made only to certain of those
exhibits when necessitated by the discussion.
-4-

the relevant undisputed facts follows:
As is relevant to this cause of action, plaintiff was
employed by defendant Countrywide as a level III underwriter and
was employed in this position on June 5, 2008, the last day he
worked at Countrywide.
plaintiff

applied

for

Shortly after his last day at Countrywide,
short

term

disability

benefits

under

Countrywide’s STD Plan on account of his recent diagnosis of
Parkinson’s disease.
To be disabled under Countrywide’s STD Plan, an employee
must be unable “to perform the material duties of [his] own
occupation” “solely because of disease or injury[.]”
p. 2.)

(Doc. #41-4,

“Material duties” are those “normally required for the

performance of [the employee’s] own occupation; and cannot be
(Id. at p. 13.)

reasonably omitted or modified.”
“own

occupation”

is

that

which

the

employee

An employee’s
is

“routinely

performing when [his] period of disability begins[,] . . . viewed
as it is normally performed in the national economy instead of how
it is performed:

for [the employee’s] specific employer; or at

[the employee’s] location or work site[.]” (Id.) Payment of short
term disability benefits begins after an “elimination period” ends,
that is, after a defined period within which an employee is
continuously disabled under the Plan.

If Aetna finds an employee

no

the

longer

disabled

under

the

Plan,

employee’s

disability ends on the date of such finding.

-5-

period

(Id. at p. 3.)

of

A.

Initial Grant and Subsequent Termination of STD Benefits
On

April

16,

2008,

prior

to

his

departure

from

Countrywide, plaintiff visited neurologist Dr. Todd B. Silverman
and reported a twelve-month history of decreased facial expression,
mildly slurred speech, slower movements, difficulty initiating
movement, increased saliva, occasional drooling, and left hand
tremor.

Plaintiff reported that he moved papers more slowly when

working at his desk.

Review of systems showed plaintiff not to

experience any alteration in his level of consciousness, memory or
intellectual abilities.
excessive

Plaintiff did not experience fatiguing

weakness

or

daytime

sleepiness,

fatigue.

Plaintiff experienced no sensory loss or difficulty with

receptive or expressive language function.

but

reported

Mental status, sensory

and cranial nerve examinations yielded normal results.
examination

showed

plaintiff

to

be

“quite

diminished facial expression and blink rate.
involuntary movements were seen.
altered.

easy

bradykinetic”

Motor
with

No tremor or other

Plaintiff’s gait was mildly

Dr. Silverman concluded that plaintiff likely suffered

idiopathic Parkinson’s disease but noted plaintiff’s cognition to
appear

normal.

An

MRI

was

carbidopa/levodopa (Sinemet).

ordered

and

plaintiff

was

given

(Doc. #55-3, pp. 1-3.)

On May 20, 2008, plaintiff reported to Dr. Silverman that
he noticed a significant improvement in his ability to walk, move
and speak while taking his medication.

-6-

Plaintiff reported some

cognitive slowing and reported that he felt he was not moving fast
enough to keep up with the demands at work.

Plaintiff reported to

Dr. Silverman that he was considering applying for disability. Dr.
Silverman
results.

noted

plaintiff’s

laboratory

tests

to

yield

normal

An MRI of the brain obtained on May 7, 2008, showed mild

age-related changes with no acute lesions.

Physical examination

showed plaintiff to be fully alert and oriented, with fluent speech
and normal comprehension, repetition and naming.

Dr. Silverman

noted plaintiff’s speech to be a bit quicker than during his
previous examination.
more spry.”

Plaintiff’s gait was noted to be “clearly

Dr. Silverman diagnosed plaintiff with idiopathic

Parkinson’s disease and determined to continue plaintiff on Sinemet
given his response to the medication.
Sinemet was increased.
month.

Plaintiff’s dosage of

Plaintiff was instructed to return in one

(Doc. #55-3, pp. 4, 5.)
In a Health Care Provider Certification form completed

for Countrywide on June 8, 2008, Dr. Silverman reported that
plaintiff’s chronic medical condition commenced on April 16, 2007,
and

was

of

an

ongoing

nature.

Dr.

Silverman

reported

that

plaintiff’s condition required him to be off of work beginning May
20, 2008, with an unknown return date.

Dr. Silverman opined that

plaintiff could not perform work of any kind.

(Doc. #55-3, pp. 11-

13.)
On

June

13,

2008,

plaintiff

-7-

applied

to

Aetna

for

temporary disability benefits under Countrywide’s STD Plan.

(Doc.

#45, p. 8.)
In support of his application for benefits, plaintiff
submitted to Aetna an Attending Physician Statement (APS) completed
by Dr. Silverman on June 18, 2008.

It was noted in the APS that

plaintiff was most recently treated by Dr. Silverman on May 20,
2008.

In the APS, Dr. Silverman reported that plaintiff had been

diagnosed with Parkinson’s disease with objective findings thereof
to include bradykinesia, rigidity, unsteady gait, and cognitive
slowing.
disease

Dr. Silverman reported plaintiff’s symptoms of the
to

have

first

appeared

on

April

16,

2007,

and

that

plaintiff was first treated for the condition on April 16, 2008.
Dr. Silverman noted that treatment of the disease consisted of
medications, including Sinemet, vitamin E and vitamin C.

Dr.

Silverman reported that plaintiff was restricted in “anything
requiring mental speed or physical agility” and was impaired in
that his cognition was slow and he had great difficulty multitasking.
marked

Dr. Silverman opined that plaintiff’s condition caused

limitation

in

functional

capacity

as

well

as

marked

limitation in his mental capacity in that he was unable to engage
in stress or interpersonal relationships.

Dr. Silverman concluded

that Parkinson’s disease prevented plaintiff from keeping up with
the demands of his job.

(Doc. #55-3, pp. 14-16.)

On June 27, 2008, Aetna determined plaintiff to be

-8-

eligible for benefits under the STD Plan, finding plaintiff to be
disabled since June 6, 2008.

Because the Plan required a sixty-day

elimination

payment

period

before

of

short

term

disability

benefits, plaintiff was advised that payment of such benefits would
begin on August 5, 2008. Aetna informed plaintiff that eligibility
for benefits would not be considered beyond August 5, 2008, unless
additional

medical

information

was

received

inability to return to work at that time.

demonstrating

his

(Doc. #44, pp. 68-69.)

In support of his continued request for

short term

disability benefits, plaintiff submitted to Aetna treatment notes
from Dr. Silverman dated July 7, 2008, which showed plaintiff to
report that he felt the Sinemet to be working.
that

he

felt

“shaky”

if

he

delayed

Plaintiff reported

taking

his

medication.

Plaintiff reported to Dr. Silverman that he was now retired, had
been approved for short term disability benefits, and was applying
for long term benefits.

Examination showed plaintiff to be awake,

alert, oriented, and to have normal speech.

Plaintiff had normal

fine-finger

the

movements,

yielded normal results.

and

examination

of

cranial

nerves

Sensory examination was normal.

Silverman noted there to be mild bradykinetion.

Dr.

Dr. Silverman

concluded that plaintiff exhibited good response to Sinemet and
instructed plaintiff to return in three months.

(Doc. #55-2, p.

50.)
On August 8, 2008, Aetna informed plaintiff that, upon

-9-

review

of

additional

information

received

from

plaintiff’s

attending physician, Aetna determined to extend plaintiff’s period
of temporary disability to September 4, 2008.
plaintiff

that

if

he

remained

disabled

Aetna informed

beyond

September

4,

additional information from plaintiff’s attending physician would
be required and would need to demonstrate a “clear understanding of
how [his] disability continue[d] to affect [his] work capacity.”
(Doc. #44, pp. 62-63.)
Plaintiff submitted an APS to Aetna dated September 11,
2008, completed by internist Dr. Guy W. Aton.

Dr. Aton noted

plaintiff’s last office visit with him to be July 11, 2008.

In the

APS, Dr. Aton reported that plaintiff had been diagnosed with
Parkinson’s disease and that he was being treated for the condition
with Sinemet.

Dr. Aton reported that plaintiff exhibited symptoms

of weakness and tremor.
ability

to

work

in

functional capacity.

Dr. Aton opined that plaintiff had no

that

he

suffered

severe

limitations

in

Dr. Aton reported that plaintiff was capable

of working no more than one hour a day, that plaintiff would
experience such restriction “forever,” and that plaintiff could
“never” return to work.

Dr. Aton reported that plaintiff was

motivated to return to work, but that his condition had regressed.
(Doc. #55-2, pp. 44-46.)2
2

An undated APS with Dr. Aton’s signature sets out the same
conclusions as the September 11, 2008, APS, that is, that plaintiff
was unable to work on account of restrictions caused by his
disease. A facsimile date of “09-24-08" is stamped at the top of
- 10 -

Aetna thereafter determined to extend plaintiff’s period
of disability to September 24, 2008, so that it could undertake a
peer review to confirm further neurological progression of the
disease,

assess

plaintiff’s

cognition

abilities

and

disease

progression, and to prepare for probable transition to long term
disability.

(Doc. #45, p. 27.)

On September 19, 2008, a medical consultant with Aetna,
neurologist Dr. Henry Spira, conducted a peer-to-peer conference
with Dr. Silverman. In his written review, Dr. Spira reported that
during this peer-to-peer conference, Dr. Silverman stated
that the claimant describes slowing of
cognition and could not perform the essential
duties of his job as he used to. He described
difficulty keeping up with the pace required
of his job.
Dr. Silverman stated that the
claimant
had
early
stage
Parkinsonism,
idiopathic, and had a good response to
Sinemet.
He could not describe anything
clinical on examination that would preclude
the
claimant
from
working
in
his
own
occupation and planned to do psychometric
neuro-psych testing.
(Doc. #47, p. 10.)
In addition to participating in this peer-to-peer conference with
Dr. Silverman, Dr. Spira reviewed the following medical records:
*

APS dated September 11, 2008, from Dr. Aton;

*

APS not dated with illegible signature;

each page of this otherwise undated APS. (Doc. #55-2, pp. 35-37.)
- 11 -

*

new patient consultation dated April 16, 2008, from Dr.
Silverman;

*

patient visit dated May 20, 2008, from Dr. Silverman;

*

office note dated July 7, 2008, from Dr. Silverman;

*

MRI brain dated May 7, 2008;

*

lab results;

*

medical history questionnaire dated April 16, 2008; and

*

Countrywide Health Care Provider Certification and APS
dated June 18, 2008.

(See Doc. #47, pp. 9-10.)
Based upon his review of this documentation and his conference with
Dr. Silverman, Dr. Spira opined that the evidence failed to support
a finding of functional impairment for the entire period of June 6,
2008, to December 2, 2008.

Dr. Spira specifically found that

“[a]lthough the claimant described cognitive dysfunction, he had a
normal mental status examination.”
noted

that

medication

improved

(Id. at 11.)

plaintiff’s

Dr. Spira also

condition.

(Id.)

Finally, Dr. Spira opined that, “[f]rom a neurological standpoint,
the restrictions and limitations, based on the provided data, are
not appropriate.”

(Id.)

In the meanwhile, Dr. Silverman completed another APS,
dated September 19, 2008. Dr. Silverman noted his last examination
of plaintiff occurred on July 7, 2008, and that plaintiff was next
scheduled for an appointment in October 2008.

In the APS, Dr.

Silverman opined that plaintiff’s Parkinson’s disease prevented him
- 12 -

from keeping up with the pace and stress of his job as a loan
underwriter.

Dr. Silverman reported plaintiff to exhibit symptoms

of tremor, slurred speech and slowing motor function, and that
objective findings of plaintiff’s impairment included bradykinesia,
rigidity and unsteady gait.
condition

to

have

Dr. Silverman noted

stabilized.

Dr.

Silverman

plaintiff’s

reported

that

plaintiff was not motivated to return to work at his previous job.
(Doc. #55-2, pp. 38-40.)
In a letter dated September 30, 2008, Aetna informed
plaintiff that, based on review of the clinical data and the peerto-peer conference with Dr. Silverman, it had determined that the
clinical information failed to support a finding that plaintiff was
functionally impaired from performing his job duties and that,
therefore, plaintiff was not totally disabled from performing his
job as an underwriter with Countrywide.
that

it

was

terminating

his

claim

Aetna informed plaintiff

for

short

term

disability

benefits for the period after September 24, 2008, and advised
plaintiff

of

determination.
B.

the

process

by

which

to

seek

review

of

this

(Doc. #44, pp. 55-56.)

Appeal of Initial Determination
In a letter dated March 18, 2009, plaintiff, through

counsel, appealed Aetna’s denial of plaintiff’s claim for short
term disability benefits.

(Doc. #46, pp. 45-52.)

Subsequent to Aetna’s initial determination to terminate

- 13 -

benefits, but prior to plaintiff’s appeal of this determination,
plaintiff underwent a neuropsychological evaluation upon referral
from Dr. Silverman.
October

1,

2008,

(Doc. #47, pp. 15-19.)

neuropsychologist

Nicole

Specifically, on
Schwarze

evaluated

plaintiff during which plaintiff reported that he experienced
slowed processing speed, mild memory problems, occasional slurred
speech, and worsening cognitive problems.

Plaintiff reported

having no problems with reasoning, language comprehension and
expression, or problem solving.

Behavioral observations showed

plaintiff not to have any physical limitations that interfered with
his performance.

Plaintiff’s speech was noted to be fluent and

articulate without errors or abnormalities.

Plaintiff’s thought

processes were noted to be well organized and goal directed.
Plaintiff’s affect was appropriate, but he seemed mildly anxious
and fidgeted throughout the

appointment.

Dr. Schwarze noted

plaintiff to be attentive and alert throughout the long test
session (three hours), and plaintiff was observed to understand
test directions easily.

During the evaluation, Dr. Schwarze

administered the following tests:

Trail Making Test Part A and B,

Delis-Kaplan Executive Functioning System, Boston Naming Test,
Benton Visual Form Discrimination Test, Wechsler Memory Scale 3rd
Edition,

California

Verbal

Learning

Test

2nd

Edition,

Brief

Visuospatial Memory Test Revised, Wechsler Adult Intelligence Scale
3rd Edition, Wisconsin Card Sorting Test, Wechsler Test of Adult

- 14 -

Reading, Beck Depression Inventory 2nd Edition, and Beck Anxiety
Inventory.

Upon conclusion of the evaluation and testing, Dr.

Schwarze reported the results to show
mild deficits in some visuospatial abilities
such as visual attention and visuomotor
construction as well as a minimal deficit in
verbal recognition memory. His cognition is
otherwise intact including intact performance
on tests assessing auditory attention, verbal
expression,
visual
memory,
most
tests
assessing
verbal
memory,
information
processing speed, and executive functioning.
Emotionally, he denies clinically significant
symptoms of depression or anxiety. The mild
deficits observed on this evaluation are
nonspecific but are likely related to probable
idiopathic Parkinson’s disease given his
otherwise unremarkable medical history and
that these types of cognitive deficits are
sometimes observed in those with idiopathic
Parkinson’s disease.
Although the mild deficits observed on this
evaluation do not necessarily preclude Mr.
Kennedy from working, he reports remarkable
problems with stamina and fatigue that may
interfere with his ability to work. I defer
to Dr. Silverman regarding Mr. Kennedy’s
ability to work at this point.
(Doc. #47, p. 18.)
Dr. Schwarze provided a copy of the neuropsychological report to
Dr. Silverman and to Dr. Aton (id.), and the report was considered
by Aetna on plaintiff’s administrative appeal (Doc. #46, p. 30;
Doc. #48, p. 19).
On March 26, 2009, at the request of plaintiff’s counsel,
plaintiff underwent a psychological and vocational rehabilitation
- 15 -

evaluation by psychologist Vincent F. Stock. Plaintiff reported to
Dr. Stock that he currently was unable to maintain a full-time
employment position because he drools, needs to nap, gets dizzy,
lives with constant pain, has a problem expressing himself in his
thoughts, gets nervous, shakes, and slurs his words.

Plaintiff

also reported that he loses focus, gets groggy in the afternoon,
experiences a loss of motor skills, can stand for only forty-five
minutes, and can sit for only one hour before needing to change
position.

Dr. Stock reviewed medical evidence consisting of Dr.

Silverman’s records dated April 16 through July 7, 2008; Dr.
Silverman’s medical note dated November 12, 2008; and Dr. Aton’s
APS dated September 24, 2008.3

Dr. Stock also reviewed a letter to

plaintiff from Countrywide dated September 19, 2008, terminating
plaintiff’s employment on account of his permanent disability4; a
letter dated December 22, 2008, from Daniel F. Cunningham, a former
co-worker

of

plaintiff’s;

a

job

description

of

Underwriter

III/Countrywide Financial dated January 16, 2009; and plaintiff’s
letter

of appeal to Aetna dated March 18, 2009.

Dr. Stock

conducted a mental status examination which showed plaintiff to be
cooperative and thorough in his explanation of the situation.
Plaintiff was calm and anxious with intact thought processes.

3

See n.2, supra.

4

The letter states that plaintiff advised Countrywide that he
was not able to return to work due to his permanent disability.
(Doc. #55-2, p. 27.)
- 16 -

Plaintiff was fully oriented and took his time answering questions.
General knowledge was intact as well as simple calculations.

Dr.

Stock noted plaintiff to be impaired in serial sevens and serial
threes. Abstract capability, judgment and insight were noted to be
intact.

Plaintiff

reported

that

he

experienced

depression and that he had trouble with his memory.

feelings

of

Based upon his

review of the medical evidence and his interview with plaintiff,
Dr. Stock concluded that plaintiff had a significant interference
and impediment to employment, that there were no jobs available for
plaintiff to perform, and that plaintiff should be considered
permanently and totally disabled.

Dr. Stock diagnosed plaintiff

with generalized anxiety disorder and assigned a Global Assessment
of Functioning (GAF) score of 45.5

(Doc. #55-1, pp. 28-35.)

Plaintiff submitted Dr. Stock’s evaluation, Countrywide’s
September 2008 letter and Mr. Cunningham’s December 2008 letter to
Aetna for consideration on administrative appeal.
submitted
Countrywide

to

Aetna

Human

an

e-mail

Resources

dated

detailing

Plaintiff also

December

3,

the

description

job

2008,

from
of

underwriter III.
5

The undersigned takes judicial notice of the Diagnostic and
Statistical Manual of Mental Disorders, Text Revision (4th ed.
2000) (DSM-IV-TR), which describes a Global Assessment of
Functioning (GAF) score as a consideration of “psychological,
social, and occupational functioning on a hypothetical continuum of
mental health/illness.” Id. at 34. A GAF score of 41-50 indicates
serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job). Id.
- 17 -

On April 30, 2009, Dr. Aton completed an APS in which he
stated that plaintiff’s Parkinson’s disease caused him to be absent
from work due to disability beginning in June 2008, and that such
disability would never end.6

Dr. Aton reported that plaintiff took

medication for the condition.

Dr. Aton reported plaintiff to

experience symptoms of progressive weakness and tremors, and that
plaintiff had no ability to work.

Dr. Aton opined that plaintiff

could work only one day a week and for one hour, at most.

Dr. Aton

opined that plaintiff could never return to work and that a “simple
physical

exam”

conclusion.

provided

objective

findings

supporting

this

Dr. Aton reported that plaintiff’s condition had both

stabilized and regressed, and that plaintiff was motivated to
return to work.

(Doc. #55-1, pp. 13-15.)

In a Capabilities and Limitations Worksheet completed
that same date, April 30, 2009, Dr. Aton reported that plaintiff
could occasionally pull, push, carry, stand, stoop, and walk; but
could never climb, crawl, kneel, lift, reach, bend, twist, grasp,
manipulate, or engage in repetitive motion.
reported that plaintiff could
pounds.

Dr. Aton further

occasionally lift up to twenty

Dr. Aton reported that plaintiff could not engage in

frequent flexing or rotation of the head and neck, nor allow his
head and neck to remain in static position.

Plaintiff had no

environmental limitations nor any limitations in his speech, vision
6

It was not noted in this APS when plaintiff last visited Dr.

Aton.
- 18 -

or hearing.

Dr. Aton opined that plaintiff could work a total of

two hours a day, at most, and that plaintiff would be so restricted
“forever.”

(Doc. #55-1, p. 16.)
Plaintiff

submitted

Dr.

Aton’s

April

2009

APS

and

Capabilities and Limitations Worksheet to Aetna for consideration
on administrative appeal.
Plaintiff visited Dr. Lee Tempel on June 22, 2009, who
noted plaintiff’s diagnosis of Parkinson’s disease.

Plaintiff

reported to Dr. Tempel that he experienced tremors, slower walking,
shuffling, and stooping for many months and was then diagnosed with
Parkinson’s in June 2008.

Plaintiff reported that he was given

medication for the condition from which he obtained benefit unless
he was stressed.

Plaintiff reported that if he missed a dose of

his medication or was stressed, he experienced increased freezing/
festination, disorientation, lack of focus, anxiety, and slurring
of words. Plaintiff reported not experiencing these symptoms often
if he is at home, relaxed, and able to take naps after exerting
himself.

Plaintiff reported that he was under a lot of stress

while at work, and that he had slowed down and could not focus.
Mental status examination showed plaintiff to be oriented, to have
intact language with mild to moderately soft monotone, and to have
intact attention and memory.
okay.

Plaintiff’s affect was noted to be

Physical examination showed mild rigidity of the upper and

lower extremities, with mild generalized bradykinesia.

- 19 -

Plaintiff

had full strength in all extremities.
slow with poor coordination.

Rapid finger tap was mildly

No tremors were noted at rest or with

action, but minimal tremor was noted with outstretched fingers.
Dr. Tempel noted plaintiff’s steps to be mildly small and to be
slow, but not shuffling.
limp.

Plaintiff had a mild stoop and a mild

Rising to a standing position was moderately difficult and

minimal postural instability was noted.

Dr. Tempel concluded that

plaintiff had typical features of idiopathic Parkinson’s disease,
including gross and fine motor signs of bradykinesia, rigidity,
parkinsonian gait, and balance changes.

Dr. Tempel reported that

plaintiff had some cognitive slowing, inability to multi-task, and
inability to maintain focus over sustained periods that worsened
with stress and time constraints.

Dr. Tempel reported that such

“non motor” problems associated with Parkinson’s did not respond
well to medications prescribed for the disease.
that

plaintiff

was

undertreated.

Dr.

Dr. Tempel opined

Tempel

determined

plaintiff to discontinue Sinemet and to start Stalevo.
was instructed to begin a home exercise program.

for

Plaintiff

Dr. Tempel noted

that he reviewed Dr. Stock’s March 2009 evaluation and agreed with
the conclusions therein, including that plaintiff was unable to
maintain competitive employment at his last occupation or in any
similar occupation.

(Doc. #55, pp. 4-7.)

Plaintiff submitted Dr. Tempel’s treatment notes to Aetna
for consideration on administrative appeal.

- 20 -

In a letter dated July 30, 2009, plaintiff, through
counsel, informed Aetna that he had submitted all evidence he
intended to submit on the appeal.

(Doc. #47, pp. 52-53.)

On September 14, 2009, psychologist Lawrence Burstein, a
consultant with Aetna, completed a Physician Review in which he
opined that evidence failed to support a finding of functional
impairment for the entire period from September 25, 2008, through
the date of his opinion.

(Doc. #46, pp. 60-64.)

In rendering this

opinion, Dr. Burstein reviewed the following evidence:
*

Job description

*

New Patient Consultation report
Neurology, dated April 16, 2008;

*

Neurosurgery and Neurology, LLC, Medical History
Questionnaire, signed by plaintiff, dated April 16, 2008;

*

Laboratory report from St. Luke’s Hospital, dated April
16, 2008;

*

MRI brain with and without contrast report from St.
Luke’s Center for Diagnostic Imaging, dated May 7, 2008;

*

Neurological follow-up report from Dr. Silverman, dated
May 20, 2008;

*

Health Care Provider Certification form, signed by Dr.
Silverman, dated June 8, 2008;

*

Office visit report from Dr. Silverman, dated July 7,
2008;

*

APS signed by Dr. Silverman, dated June 18, 2008;

*

Authorization for Aetna to Request Protected Health
Information Necessary to Process a Disability Claim
forms, signed by plaintiff, both dated June 23, 2008;

- 21 -

from

Dr.

Silverman,

*

APS signed by plaintiff, dated July 11, 2008, physician
signature illegible;

*

APS’s signed by Dr. Guy W. Aton, Internal Medicine, dated
September 11, 2008, and September 18, 2008;

*

APS signed by Dr. Silverman, dated September 19, 2008;

*

Letter addressed to claimant from Andrea Smith, AVP,
Leave of Absence, Countrywide Human Resources, dated
September 19, 2008;

*

Copy of a prior peer review report completed by Dr. Henry
Spira, Neurology, dated September 22, 2008;

*

Copy of the STD claim
September 30, 2008;

*

Letter from claimant, dated December 2, 2008;

*

“To Whom It May Concern” letter
Cunningham, dated December 22, 2008;

*

Letter from claimant, dated January 25, 2009;

*

Appeal request letter of representation from Phillip A.
Tatlow, Esquire, dated March 18, 2009;

*

Report of Psychological and Vocational Rehabilitation
Evaluation from Vincent F. Stock, M.A., Licensed
Psychologist, dated March 26, 2009;

*

Social Security Administration Consent for Release of
Information form, Aetna Reimbursement Agreement (LTD)
form, signed by plaintiff, both dated March 29, 2009;

*

Letter from Attorney Tatlow, dated April 15, 2009;

*

APS, Capabilities and Limitations Worksheet, signed by
Dr. Aton, both dated April 30, 2009;

*

Work History and Education Questionnaire,
plaintiff, dated May 21, 2009;

*

Authorization for Aetna to Request Protected Health
Information Necessary to Process a Disability Claim form,
Authorization to Obtain Information form, signed by
plaintiff, both dated May 25, 2009;
- 22 -

determination

letter,

from

dated

Daniel

signed

F.

by

*

Aetna Other Income Questionnaire Disability Benefits,
signed by plaintiff, dated May 26, 2009;

*

Medical Report from Lee W. Tempel, M.D., Neurology, dated
June 22, 2009;

*

List of Symptoms for claimant, update, dated June 22,
2009; and

*

Correspondence from Attorney Tatlow, dated July 1 and
July 30, 2009.

(See Doc. #46, pp. 60-61.)
Dr. Burstein also conducted a peer-to-peer consultation with Dr.
Stock, who stated to Dr. Burstein
that he has not actually treated the claimant.
Mr. Stock reported that he only saw the
claimant on one occasion, in April, 2009. Mr.
Stock stated that the claimant had difficulty
performing the serial-seven and serial-three
tasks, after consulting his file, but had no
record of the claimant’s actual responses. He
indicated that he based his opinion that the
claimant could not work on the claimant’s
history and the documentation but did not have
any examples of the claimant’s behavior or
measurements of the claimant’s cognitive
functioning to support his opinion.
(Doc. #46, p. 62.)
Based upon his review of the submitted evidence and the
peer-to-peer conference with Dr. Stock, Dr. Burstein opined that
the evidence failed to support a finding of functional impairment,
from

a

psychological

perspective,

for

the

entire

period

of

September 25, 2008, through the date of his report (September 14,
2009).

Dr. Burstein specifically found:
- 23 -

The claimant has not been in the care of a
mental health professional, or at least no
records were submitted from a mental health
professional. . . .
The submitted documentation indicates that the
claimant has been diagnosed with Parkinson’s
disease. This disease can cause impairments
in an individual’s cognitive functioning. It
is also a progressive disease that would be
expected to lead to increasing levels of
impairment over time.
However, as the
claimant’s providers have not performed mental
status examinations or provided other findings
to corroborate that the claimant has had
impairments in his cognitive or emotional
functioning, it is impossible to determine
when, or if, the claimant’s disease had caused
him
to
have
symptoms
that
would
have
interfered with his occupational functioning.
As recently as 04/09/09, the claimant was
exhibiting behaviors and mental status results
that were mostly within normal limits.
The
claimant was reported to not sit still,
although this could be a symptom of the
movement issues associated with Parkinson’s
disease. The claimant reportedly made errors
on the serial-seven task but Mr. Stock did not
indicate the claimant’s responses, so it is
impossible to determine if the claimant made a
single error, which would not suggest that the
claimant was impaired to a degree that would
have
interfered
with
his
cognitive
functioning, or if the claimant made many
errors, which might have indicated impairments
in the claimant’s ability to function. There
were no measures of the claimant’s psychomotor
speed to corroborate the claimant’s complaints
that
he
could
not
work
fast
enough.
Therefore, the submitted documentation does
not support that the claimant was impaired,
from a psychological perspective, during the
period under review.
(Doc. #46, p. 63.)

- 24 -

Neurologist Dr. Vaughn Cohan, a medical consultant with
Aetna, also completed a Physician Review in which he opined that
evidence failed to support a finding of functional impairment for
the entire period from September 25, 2008, through the date of his
opinion.

(Doc. #48, pp. 16-21.)

In rendering this opinion, Dr.

Cohan reviewed the same submitted records as reviewed by Dr.
Burstein,

and

considered

information

obtained

in

peer-to-peer

consultations he had with Drs. Silverman and Aton on September 14
(Id. at pp. 16-17, 19.) Dr.

and September 17, 2009, respectively.

Cohan reported Dr. Silverman to state that as of plaintiff’s most
recent visit with him in May 2009, there was no significant change
in

plaintiff’s

condition

and

activities of daily living.
had

experienced

a

few

that

plaintiff

could

perform

Dr. Silverman stated that plaintiff

episodes

of

transient

and

short-lived

disorientation with full spontaneous resolution, and demonstrated
mild rigidity and bradykinesia as well as minimal tremor.

“Dr.

Silverman stated that the claimant reported that he could not work
intellectually,

but

Dr.

Silverman

noted

the

results

of

the

claimant’s previous neuropsychological evaluation by Dr. Schwarz
[sic], which did not reveal any significant cognitive defect which
would preclude performance of work.”

(Id. at p. 19.)

With respect

to Dr. Aton, Dr. Cohan reported him to state that plaintiff’s
cognitive functioning was very good and that plaintiff’s primary
problem was with tremulousness.

- 25 -

Dr. Aton stated that he would

defer to neurology with respect to plaintiff’s ability to work.
(Id.)
Based upon his review of the submitted evidence and the
peer-to-peer conferences with Drs. Silverman and Aton, Dr. Cohan
opined that the evidence failed to support a finding of functional
impairment for the entire period of September 25, 2008, through the
date of his report (September 22, 2009).

Dr. Cohan specifically

found:
The claimant left work in June 2008 with signs
of Parkinsonism, and he was started on Sinemet
therapy. The medical records reflect that the
claimant’s
abnormal
physical
findings
substantially
improved
while
on
Sinemet
therapy. Although the claimant has reported
cognitive problems as a reason for his alleged
inability to work, nonetheless, the claimant’s
primary care physician has stated that no
significant cognitive problems are noted, Dr.
Silverman did not report any significant
cognitive abnormalities on his examination,
and
a
comprehensive
neuropsychological
evaluation found relatively normal cognitive
functioning when performed by Dr. Schwarz
[sic].
Dr. Tempel has stated that he
considers the claimant to be cognitively
impaired, and he makes reference to a
psychological interview performed by Mr.
Stock.
I have previously opined that this
evaluation would be inadequate with respect to
evaluating the claimant’s overall cognitive
functionality for work for reasons stated
above.
It
is
my
opinion
that
the
documentation provided is not indicative of a
functional impairment for the claimant’s own
occupation effective 9/25/08.
(Doc. #48, p. 20.)

- 26 -

On September 30, 2009, Aetna forwarded to Dr. Tempel a
copy of Dr. Cohan’s Physician Review and requested Dr. Tempel to
indicate to Aetna the areas of the report with which he agreed
and/or disagreed and to submit clinical evidence or documentation
supporting his position.

(Doc. #47, pp. 54-55.)

Tempel’s office submitted a note

In response, Dr.

stating, “Dr. Tempel cannot

comment on his ability to work on 9/08 since he was not yet our
patient. Dr. Tempel would recommend a neuropsych evaluation to see
if he can cognitively hold a competitive underwriting job.
would be more than happy to order this testing if needed.”

We

(Id. at

p. 56.)
In a letter dated November 13, 2009, Aetna informed
plaintiff that, based on review of the submitted documentation, the
peer-to-peer conferences with Drs. Silverman and Aton, and the
October 2009 statement from Dr. Tempel, it had determined that
there was a lack of medical evidence to support a finding that an
impairment in plaintiff’s physical and psychological functioning
precluded him from performing the material duties of his own
occupation as of September 25, 2008, and that the previous decision
to terminate short term disability benefits was therefore upheld.
Aetna advised plaintiff of the process by which to bring a civil
action under ERISA to challenge the determination.
30-32.)

- 27 -

(Doc. #46, pp.

C.

Post Administrative Appeal
On May 12, 2010, plaintiff, through counsel, submitted

additional

medical

evidence

to

Aetna

consisting

of

a

neuro-

psychological evaluation conducted by Dr. Kristen Sands on March
22, 2010.

Counsel argued to Aetna that such evaluation showed

plaintiff’s condition to continue to deteriorate.

Counsel also

argued that plaintiff was denied the opportunity to obtain long
term disability benefits because of Aetna’s wrongful denial of
short term disability benefits.

Plaintiff requested that Aetna

reconsider its previous denial and cautioned that failure to do so
would result in litigation by which both short term and long term
disability benefits would be sought.

(Doc. #46, pp. 18-23.)

In a letter dated June 8, 2010, Aetna informed plaintiff
that

the

exhausted

appeal
and

procedures

that

its

under

November

its
2009

policy

had

decision

been

to

fully

uphold

the

termination of plaintiff’s short term disability benefits was not
subject

to

documentation

further

administrative

submitted

returned to counsel.

with

review.

plaintiff’s

May

The
2010

medical

letter

was

(Id. at pp. 16-17.)

This action followed.
III.

Standard of Review

In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
(1989), the Supreme Court established the
applicable to ERISA benefit claims.

- 28 -

standard of review

In Firestone, the Court

determined that such claims are to be reviewed de novo unless the
plan

gives

the

"administrator

or

fiduciary

the

discretionary

authority to determine eligibility for benefits or to construe the
terms"

of

the

plan.

Id.

at

115.

If

the

plan

grants

the

administrator or fiduciary such discretionary authority, the court
must determine whether the administrator abused its discretion in
reaching its decision.

See id.; see also Hackett v. Standard Ins.

Co., 559 F.3d 825, 829-30 (8th Cir. 2009).

Where, as here, a plan

administrator plays a dual role under an employee benefits plan by
acting as an evaluator of claims and a payer of benefits, a
conflict of interest is created.
Glenn, 554 U.S. 105, 108 (2008).

Metropolitan Life Ins. Co. v.
Such conflict of interest must be

weighed as a factor in determining whether the administrator abused
its discretion; it does not convert the standard of review to one
of de novo review.

Id. at 115-16; Hackett, 559 F.3d at 830.

In reviewing for abuse of discretion, the court must
affirm the plan administrator’s action under the plan unless it is
arbitrary and capricious.

Manning v. American Republic Ins. Co.,

604 F.3d 1030, 1038 (8th Cir. 2010).

To determine whether a plan

administrator’s decision was arbitrary and capricious, the court
examines whether the decision was reasonable.

Id.

Any reasonable

decision will stand, even if the court would have determined the
matter differently as an original matter.

Id.

“[T]his standard

does not apply[, however,] if the plan administrator has committed

- 29 -

‘a serious procedural irregularity’ causing ‘a serious breach of
the plan administrator’s fiduciary duty to the claimant,’ in which
case the court applies a less deferential standard of review.”

Id.

(quoting Pralutsky v. Metropolitan Life Ins. Co., 435 F.3d 833, 837
(8th Cir. 2006)).
In his Amended Complaint and Motion for Summary Judgment,
plaintiff

claims

that

Aetna

committed

serious

procedural

irregularities causing a serious breach of its fiduciary duty to
plaintiff, and thus that the less deferential standard of review
applies.

For the following reasons, plaintiff’s argument fails.
Plaintiff claims that defendants’ failure to consider his

eligibility for Social Security benefits constitutes a procedural
irregularity warranting less than deferential review.

As an

initial matter, the undersigned notes that “ERISA plans are not
bound

by

Social

Security

determinations,”

and

courts

deference to findings made under the Social Security Act.

owe

no

Ciulla

v. Usable Life, 864 F. Supp. 883, 888 (W.D. Ark. 1994) (cited
approvingly in Coker v. Metropolitan Life Ins. Co., 281 F.3d 793,
798 (8th Cir. 2002)). Nevertheless, other than his eligibility for
Social

Security

demonstrating

that

benefits,
the

plaintiff

failure

to

presents

consider

such

no

evidence

eligibility

affected Aetna’s decision to terminate and/or deny plan benefits.
Plaintiff does not identify any records considered by the Social
Security Administration which should have been, but were not,

- 30 -

considered

by

irregularity,

Aetna.
without

heightened review.
Cir. 2007).
fact

of

The
more,

mere
is

assertion

insufficient

of
to

a

perceived

give

rise

to

Kesco v. Meredith Corp., 480 F.3d 849, 852 (8th

“Absent material, probative evidence, beyond the mere

the

apparent

irregularity,

tending

to

show

that

the

administrator breached his fiduciary obligation,” the traditional
abuse of discretion analysis will be applied.

Id. at 852-53

(internal quotation marks and citation omitted). Because plaintiff
fails to present evidence of a connection between Aetna’s failure
to consider his eligibility for Social

Security benefits and

Aetna’s denial of plan benefits, a less-than-deferential standard
of review is not warranted.

Id. at 853; see also Chronister v.

Baptist Health, 442 F.3d 648, 655 (8th Cir. 2006).
Plaintiff also claims that defendants’ failure to refer
him for an independent psychological, physical and/or vocational
examination constituted a procedural irregularity.
disability

plans,

however,

Aetna

was

not

required

Under its
to

order

independent examinations or evaluations (see Doc. #41-4, p. 10;
#41-6,

p.

10),

requirement.”

and

“case

law

contains

no

such

absolute

Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670,

678 (8th Cir. 2005).

This perceived irregularity does not subject

Aetna’s decision to terminate benefits to less than deferential
review.

Id. at 678, 679-80.
Plaintiff

contends

that

- 31 -

defendants

effected

the

termination of his short term disability benefits so as to prevent
plaintiff

from

benefits.7

Plaintiff

assertion.
fact

of

becoming

eligible

presents

for

no

long

evidence

term
to

disability

support

this

“Absent material, probative evidence, beyond the mere

the

apparent

irregularity,

tending

to

show

that

the

administrator breached his fiduciary obligation, we will apply the
traditional abuse of discretion analysis.” Kesco, 480 F.3d at 85253 (internal quotation marks and citation omitted).
Plaintiff also argues that procedural irregularities
exist in the manner by which defendants reviewed the evidence
submitted in support of his disability.

Specifically, plaintiff

claims that defendants failed to consider the report of Dr. Stock’s
March 2009 evaluation, submitted to them in July 2009; and made
their

determination

to

terminate

benefits

without

competent,

objective evidence of improvement in plaintiff’s health.

With

respect to plaintiff’s claim regarding defendants’ treatment of Dr.
Stock’s evaluation, his claim is without merit.

Contrary to

plaintiff’s assertion, Dr. Stock’s evaluation was reviewed by Aetna
and its medical consultants, and was summarized and analyzed in
Aetna’s decision to uphold its previous termination of benefits.
Indeed, Aetna consultant Dr. Burstein conducted a peer-to-peer
conference with Dr. Stock——during which Dr. Stock’s evaluation was

7

Under Aetna’s LTD Plan, an employee does not become eligible
for receipt of long term benefits until after the first 180 days of
a period of disability. (Doc. #41-5, p. 6; #41-6, p. 2.)
- 32 -

discussed——and reported his conclusions resulting therefrom in his
Physician Review.

To the extent plaintiff claims procedural

irregularity in the termination of benefits without objective
evidence of medical improvement, such argument is directed more to
the reasonableness of the administrator’s decision based on the
evidence presented rather than

a

serious irregularity in the

process, that is, an irregularity “so severe that the court ‘has a
total lack of faith in the integrity of the decision making
Pralutsky, 435 F.3d at 838 (quoting Buttram v. Central

process.’”

States, Se. & Sw. Areas Health & Welfare Fund, 76 F.3d 896, 900
(8th

Cir.

1996)).

appropriate.

The

normal

standard

of

review

is

thus

Id.

Plaintiff appears to also argue that Countrywide’s letter
to him dated September 19, 2008, terminating his employment “based
on [his] permanent disability” (Doc. #55-2, p. 27) constitutes his
employer’s finding that he could not perform the duties of his job
and demonstrates the incongruity of Aetna’s ultimate determination
that plaintiff was not so disabled.

A review of the letter in

toto, however, shows that Countrywide did not act on its own
determination that plaintiff was permanently disabled, but rather
on plaintiff’s representation:

“Dear Mr. Kennedy:

As a follow-up

to our conversation on September 19, 2008, you have advised that
you will not be able to return to work due to your permanent
disability.”

(Id.,

emphasis

added.)

- 33 -

No

serious

procedural

irregularity in Aetna’s actions is demonstrated by the contents of
Countrywide’s letter terminating plaintiff’s employment.
Plaintiff

also

contends

that

defendants

engaged

in

procedural irregularities by not providing the complete claims file
to him until September 3, 2009.

Plaintiff argues that without a

more timely provision of the file, he was unable to counter Dr.
Spira’s report and substantiate his claim on administrative appeal
inasmuch as he did not previously see the report.
record counters this assertion.

A review of the

Indeed, in his March 2009 letter

to Aetna appealing the initial adverse decision, plaintiff, through
counsel, refers extensively to Dr. Spira’s Physician Review report,
identifying the report to be among “documents that you sent to
him[.]”

(Doc. #46, pp. 46-47.)
Finally, plaintiff claims that defendants improperly

obtained opinions from Aetna consultants Drs. Burstein and Cohan
after the appeal process had closed without providing plaintiff an
opportunity to review and rebut such opinions.

“[T]he full and

fair review to which a claimant is entitled under 29 U.S.C. §
1133(2) does not include reviewing and rebutting, prior to a
determination on appeal, the opinions of peer reviewers solicited
on that same level of appeal.”

Midgett v. Washington Group Int’l

Long Term Disabilty Plan, 561 F.3d at 896. Instead, the applicable
regulations state that a claimant “[is] entitled to access those
peer reviews only after [the administrator] ma[kes] its ‘adverse

- 34 -

benefit determination on review.’”

Id. at 895 (quoting 29 C.F.R.

§ 2560.503-1(i)(5)) (emphasis added).
claims

that

defendants

improperly

To the extent plaintiff

padded

the

claims

file

by

obtaining these opinions, regardless of his lack of opportunity to
review and rebut them, a review of the regulations shows that in
the circumstances of plaintiff’s administrative appeal here, Aetna
was required to procure such peer reviews:
[I]n deciding an appeal of any adverse benefit
determination that is based in whole or in
part on a medical judgment, . . . the
appropriate named fiduciary shall consult with
a health care professional who has appropriate
training and experience in the field of
medicine involved in the medical judgment[.]
29 C.F.R. § 2560.503-1(h)(3)(iii) (emphasis added).
Further, as noted by the Eighth Circuit in Midgett, § 2560.5031(h)(3)(iii)

does

not

require

a

claimant

to

be

given

the

opportunity to review and rebut such health care professional’s
conclusion.
plaintiff

Midgett, 561 F.3d at 895.
asserts

a

procedural

Lastly, to the extent

irregularity

on

account

of

defendants’ failure to identify Drs. Burstein and Cohan until the
instant litigation, nothing in the applicable regulations requires
a plan administrator to sua sponte provide to a claimant the
specific identity of its peer reviewers or their credentials after
an adverse administrative review. See Midgett, 561 F.3d at 896; 29
C.F.R.

§

2560.503-1(j).

Although

- 35 -

plaintiff

was

entitled

to

receive,

upon

request,

copies

of

all

documents,

records

and

information relevant to his claim on review, 29 C.F.R. § 2560.5031(j)(3), nothing before the Court shows that plaintiff made such
request until the instant litigation.

No procedural irregularity

exists with respect to defendants’ procurement of Drs. Burstein’s
and

Cohan’s

opinions,

nor

with

respect

to

their

disclosure

thereof.8
Accordingly, for all of the foregoing reasons, the Court
will review the plan administrator’s decision to terminate and/or
deny

plan

benefits

for

abuse

of

discretion,

taking

Aetna’s

financial conflict of interest into consideration.
IV.
In

reviewing

for

Discussion
an

abuse

of

discretion,

the

plan

administrator’s decision should be reversed only if it is arbitrary
and capricious.

Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050

(8th Cir. 2011); Midgett, 561 F.3d at 896.

To determine whether a

plan administrator’s decision was arbitrary and capricious, the
Court must look to whether the decision to deny benefits was
supported by substantial evidence, “meaning more than a scintilla
but less than a preponderance.”

Midgett, 561 F.3d 897 (internal

quotation marks and citation omitted).

8

The Court should not

In his briefs on the instant motions for summary judgment,
plaintiff repeatedly requests the Court to strike the opinions of
Drs. Burstein and Cohan on account of these alleged procedural
irregularities. For the reasons stated herein, the Court will not
strike these opinions.
- 36 -

disturb

the

decision

if

it

is

supported

by

a

reasonable

explanation, even though a different reasonable interpretation
could have been made.

Id.

“[A] decision is reasonable if a

reasonable person could have reached a similar decision, given the
evidence before him, not that a reasonable person would have
reached

that

decision.”

Id.

(internal

quotation

citations omitted) (emphasis in original).

marks

and

For the following

reasons, Aetna’s decisions here were reasonable and supported by
substantial evidence.

In addition, because the circumstances do

not suggest a higher likelihood that Aetna’s conflict of interest
affected its benefits decision, this factor does not weigh heavily
See Green, 646

in this Court’s evaluation for abuse of discretion.
F.3d at 1053-54.
During
evidence

which

initial
lacked

review,

any

Aetna

objective

had

before

findings

it

that

medical

plaintiff

suffered cognitive deficits on account of his condition.

Other

than plaintiff’s subjective statements during examinations that he
experienced

cognitive

slowing,

plaintiff’s

providers

made

no

contemporaneous clinical findings of such slowing and, indeed,
mental status examinations were consistently within normal limits.
In

addition,

during

the

peer-to-peer

conference

conducted

in

September 2008, it was noted that plaintiff’s treating neurologist
“could not describe anything clinical on examination that would
preclude [plaintiff] from working in his own occupation[.]”

- 37 -

(Doc.

#47, p. 10.)
plaintiff’s

It was also noted during this initial review that
condition

improved

evidence

submitted

in

support

benefits

supported

this

treating

neurologist

with
of

plaintiff’s

finding.

and

medication,

To

treating

the

and

application

extent

internist

medical
for

plaintiff’s

opined

in

their

respective APS’s that plaintiff’s condition rendered him unable to
work, Aetna’s consulting neurologist found that such restrictions
were not supported by the medical data provided.

In light of the

substantial evidence demonstrating medical improvement and lack of
cognitive

deficit,

regarding

the

coupled

extent

of

with

conflicting

plaintiff’s

medical

limitations,

opinions

it

was

not

unreasonable for Aetna, as plan administrator, to determine the
evidence not to support a finding that plaintiff was unable to
perform his job duties.
the

record

reflects

See Midgett, 561 F.3d at 897-98.
conflicting

medical

opinions,

the

“Where
plan

administrator does not abuse its discretion is finding the employee
not to be disabled.”
citation omitted).

Id. at 898 (internal quotation marks and

This is so even where, as here, the conflict in

opinions exists only between the consulting peer reviewer and a
claimant’s treating physician(s).

See id. at 897 (and cases cited

therein); Pralutsky, 435 F.3d at 835-37.

Accordingly, on initial

review, the decision to terminate plaintiff’s short term disability
benefits was not arbitrary and capricious and therefore did not
constitute an abuse of discretion.

- 38 -

Midgett, 561 F.3d at 898.

The same holds true for the adverse determination on
administrative appeal.

During its review of the decision to

terminate benefits, Aetna had before it the same evidence submitted
on initial determination as well as additional evidence submitted
on appeal by plaintiff, plaintiff’s physicians, and consulting peer
review physicians.

In its written decision denying plaintiff’s

appeal, Aetna specifically and thoroughly summarized the medical
evidence submitted on appeal, including the medical evidence on
plaintiff’s initial application, Dr. Stock’s March 2009 evaluation,
Dr. Tempel’s June 2009 evaluation, and the neuropsychological
evaluation conducted in October 2008 by Dr. Schwarze.

The written

decision also summarized the peer-to-peer conference conducted with
Dr.

Silverman,

plaintiff’s

treating

neurologist,

wherein

Dr.

Silverman stated that, as of May 2009, plaintiff’s condition had
not changed; plaintiff could perform activities of daily living;
and that plaintiff had experienced few transient episodes of
disorientation that were short-lived and spontaneously resolved.
With respect to plaintiff’s intellectual ability to work, it was
noted

that

Dr.

Silverman

referenced

Dr.

Schwarze’s

neuro-

psychological evaluation which did not reveal any significant
cognitive defect which would preclude performance at work.

The

peer-to-peer conference with Dr. Aton was also summarized wherein
Dr. Aton described plaintiff’s cognitive functioning as “pretty
good”;

opined

that

plaintiff’s

- 39 -

primary

problem

was

with

tremulousness; and reported that he would defer to neurology with
respect to plaintiff’s ability to work.

Finally, the written

decision referred to Dr. Tempel’s October 2009 note wherein it was
stated that Dr. Tempel could not provide an opinion on plaintiff’s
ability to work in September 2008 inasmuch as plaintiff was not Dr.
Tempel’s patient at that time.

(Doc. #46, pp. 30-32.)

With respect to Dr. Stock’s evaluation, Aetna’s decision
noted that Dr. Stock did not describe any detailed examination of
plaintiff’s

memory

function

despite

plaintiff’s

subjective

complaint of memory impairment, and that plaintiff’s mental status
examination was otherwise intact.
despite

plaintiff’s

subjective

The decision also noted that
complaints

of

depression

and

anxiety, Dr. Stock did not conduct any standardized tests or
measure plaintiff’s consistency, reliability or effort.
of

these

circumstances,

examination

Aetna

determined

that

In light

Dr.

did “not qualify as a comprehensive and reliable

measurement of Mr. Kennedy’s neurocognitive functioning.”
#46, p. 31.)
written

Stock’s

(Doc.

With respect to Dr. Tempel’s evaluation, Aetna’s

decision

noted

Dr.

Tempel

to

agree

with

Dr.

Stock’s

conclusion regarding plaintiff’s ability to work. However, Aetna’s
decision also set out Dr. Tempel’s recorded findings of intact
mental status examination, intact nerve functioning and sensory
examination, normal strength, mild rigidity and mild bradykinesia,
no involuntary movements, and mild tremor with outstretched arms.

- 40 -

(Id.)
Against this backdrop, coupled with the other evidence
submitted to and reviewed by Aetna, substantial evidence supports
Aetna’s decision to affirm its initial decision to terminate
plaintiff’s short term disability benefits effective September 25,
2008.

The peer reviewers on appeal concluded that the evidence did

not support a finding that plaintiff was functionally impaired to
perform the duties of his work, and indeed the information provided
by

plaintiff’s

treating

physicians

to

the

peer

reviewers

demonstrated that plaintiff’s cognitive abilities did not preclude
the performance of his work.

In addition to these peer reviews,

treatment records showed plaintiff’s physical abilities to be only
mildly

impaired.

Finally,

Dr.

Stock’s

single

evaluation

of

plaintiff employed no comprehensive testing or other measurement of
plaintiff’s abilities but instead relied on plaintiff’s subjective
reports and his review of limited medical and lay evidence provided
by plaintiff.

Likewise, Dr. Tempel’s conclusion was based on Dr.

Stock’s evaluation, which was properly discredited by Aetna.

In

contrast, Dr. Schwarze administered multiple diagnostic tests and
comprehensive evaluations thereof, from which she determined that
plaintiff was not precluded from performing the demands of work.
In light of the conflicting medical opinions in this
case, Aetna’s continued denial of plaintiff’s disability claim was
not arbitrary and capricious.

Midgett, 561 F.3d at 898; see also

- 41 -

Coker, 281 F.3d at 799 (denial of benefits not unreasonable where
subjective medical opinions were not supported by objective medical
evidence,
medical

and

objective

condition).

comprehensive

medical
Indeed,

neuropsychological

evidence
in

view

showed
of

examination,

no

Dr.

disabling

the

Schwarze’s
peer

review

reports, and the treating physicians’ statements made during the
peer-to-peer conferences describing plaintiff’s actual cognitive
and physical abilities, a reasonable person could have reached a
similar decision.

Midgett, 561 F.3d at 897.

Aetna therefore did

not abuse its discretion in its decision to affirm the termination
of plaintiff’s short term disability benefits.

Id. at 898.

To the extent plaintiff claims that Aetna abused its
discretion by failing to accord appropriate weight to the opinions
of treating and/or examining physicians Drs. Silverman, Aton,
Stock, and Tempel, and instead improperly determined to credit and
rely upon the opinions of non-examining, consulting peer review
physicians, the Eighth Circuit recently noted that
[t]he Supreme Court has recognized that
treating physicians are not automatically
entitled to special weight in disability
determinations under ERISA:
Plan administrators, of course, may not
arbitrarily refuse to credit a claimant’s
reliable evidence, including the opinions
of a treating physician. But, we hold,
courts have no warrant to require
administrators automatically to accord
special weight to the opinions of a
claimant’s physician; nor may courts
- 42 -

impose on plan administrators a discrete
burden of explanation when they credit
reliable evidence that conflicts with a
treating physician’s evaluation.
Midgett, 561 F.3d at 897 (quoting Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 834 (2003)).
Because

the

record

supports

Aetna’s

denial

of

benefits

to

plaintiff, Aetna’s acceptance of the peer reviewers’ opinions over
those of plaintiff’s treating physicians was not an abuse of
discretion.

Id.

Plaintiff also claims that the defendants abused their
discretion by picking and choosing what evidence upon which to rely
in making their adverse determination.
selective

reference

is

evidenced

by

Plaintiff avers that such
defendants’

failure

to

acknowledge plaintiff’s specific job description in the final
decision, their failure to set out how plaintiff could perform his
job with his impairments, and their failure to acknowledge Mr.
Cunningham’s resume and professional opinion regarding plaintiff’s
ability to perform the job of underwriter III.

The evidence and

information reviewed by Aetna in making its final decision included
the

evidence

described

by

plaintiff

above.

In

its

final

determination on appellate review, however, Aetna was not required
to discuss the specific evidence submitted by plaintiff.
561 F.3d at 896 (citing 29 C.F.R. § 2560.503-1(j)).

Midgett,

As such, the

failure of Aetna to discuss the specific details of plaintiff’s job
description and the letter and resume submitted by Mr. Cunningham
- 43 -

does not detract from the reasonableness of Aetna’s determination
to deny plaintiff disability benefits.
Finally, because plaintiff’s disability status terminated
effective September 25, 2008, plaintiff did not meet the 180-day
elimination period of continuous disability in order to become
eligible for long term disability benefits.

The decision to deny

plaintiff long term disability benefits on account of his inability
to meet the Plan’s required elimination period was reasonable.
Butts v. Continential Cas. Co., 357 F.3d 835, 839 (8th Cir. 2004).
As noted above, the plan administrator here, Aetna, plays
a dual role under the relevant employee benefits plans by acting as
an evaluator of claims and a payer of benefits, thereby creating a
conflict of interest which must be considered by the Court.

A

review of the evidence shows, however, that Aetna has taken active
steps to reduce potential bias and to promote accuracy in its
decision making, including, inter alia, the walling off of claims
administrators from those interested in firm finances, a quality
assurance

program

intended

to

assess

the

accuracy

of

claims

decisions, and an employee evaluation process based on the quality
of claims decisions rather than on the amount or number of claims
paid or denied.

(Doc. #41-1, Bryant Decl.) In addition, plaintiff

has presented no evidence demonstrating that Aetna has a history of
biased claims decisions.

Accordingly, this structural conflict of

interest, albeit a factor to be considered in determining whether

- 44 -

Aetna abused its discretion, is given little weight.

See Green,

646 F.3d at 1053 (citing Glenn, 554 U.S. at 117).
For all of the foregoing reasons, there was substantial
evidence to support Aetna’s decision to terminate plaintiff’s short
term disability benefits effective September 25, 2008, and to deny
plaintiff’s request for long term disability benefits.

As such,

Aetna did not abuse its discretion in its determinations.

In

addition, because Aetna provided a reasonable explanation for its
Midgett, 561

decisions, the decisions should not be disturbed.
F.3d at 897.
V.
Plaintiff

Newly Submitted Evidence
requests

the

Court

to

consider

the

neuropsychological report completed by Dr. Kristen Sands in March
2010 as evidence to support his claim that he is entitled to
disability

benefits

under

defendants’

SDT

and

LTD

Plans.

Defendants oppose the consideration of such evidence.
“When reviewing a denial of benefits by an administrator
who has discretion under an ERISA-regulated plan, a reviewing court
‘must focus on the evidence available to the plan administrators at
the time of their decision and may not admit new evidence or
consider post hoc rationales.’”

King v. Hartford Life & Accident

Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (quoting Conley v.
Pitney Bowes, 176 F.3d 1044, 1049 (8th Cir. 1999)).

Evidence of

Dr. Sands’ evaluation, which was conducted in March 2010, was not

- 45 -

available to Aetna in November 2009 when it made its final decision
on review to affirm its previous termination of plaintiff’s short
term disability benefits.

In light of the standard set out in

King, the Court must deny plaintiff’s request to submit afteracquired evidence in an effort to prove his claim.9
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that defendants Aetna Life Insurance
Company and Countrywide Financial Corporation’s Motion for Summary
Judgment (Doc. #40) is GRANTED.
IT

IS

FURTHER

ORDERED

that

plaintiff

Geoffrey

L.

Kennedy’s Motion for Summary Judgment (Doc. #51) is DENIED.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

22nd

day of May, 2012.

9

Even in a case subject to de novo review, the Court may not
consider such evidence unless good cause is shown to depart from
this general rule. Conley v. Pitney Bowes, 176 F.3d 1044, 1049
(8th Cir. 1999).
Plaintiff’s argument that this evidence
demonstrates his inability to work does not constitute good cause.
Cf. Davidson v. Prudential Ins. Co. of Am., 953 F.2d 1093, 1095
(8th Cir. 1992) (“Davidson’s offer of additional evidence at this
point amounts to nothing more than a last-gasp attempt to quarrel
with Prudential’s determination that he is capable of gainful
employment.”).
- 46 -