Valentine v. Aetna Life Insurance Company

Filing 36

ORDER denying 17 Motion for Summary Judgment; granting 27 Motion for Summary Judgment For the reasons set forth herein, after careful review of the entire administrative record, and according Aetna a deferential standard of review, the Court co ncludes that defendants decision to terminate plaintiffs long term disability benefits beyond June 30, 2012 failed to address substantial evidence in the record, and was thus arbitrary and capricious as a matter of law. Defendant's motion for summary judgment is, therefore, denied, and plaintiffs motion for summary judgment is granted to the extent that the claim is remanded to Aetna for reconsideration. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/25/2015. (Mesrobian, David)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-cv-1752 (JFB)(GRB)
_____________________

CAROL VALENTINE,
Plaintiff,
VERSUS

AETNA LIFE INSURANCE COMPANY,
Defendant.
___________________
MEMORANDUM AND ORDER
August 25, 2015
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Carol Valentine (“plaintiff”)
brings this action under the Employee
Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. (“ERISA”),
challenging the termination of her long-term
disability (“LTD”) benefits by defendant
Aetna Life Insurance Company (“Aetna,” or
“defendant”). Plaintiff was employed by
Hubbard Broadcasting (“Hubbard”), where
she was a participant in an LTD policy
administered by Aetna (the “Plan”), until
she allegedly became disabled under the
provisions of the Plan due to a trigeminal
nerve disorder. Plaintiff now challenges
Aetna’s partial rejection of her claim for
LTD benefits. Specifically, plaintiff alleges
that Aetna’s finding that plaintiff’s disability
ended on June 30, 2012, and its resultant
decision to terminate her benefits
subsequent to that date was arbitrary and
capricious.

Plaintiff and defendant now both move
for summary judgment pursuant to Federal
Rule of Civil Procedure 56. Defendant
moves for summary judgment on the
grounds that sufficient evidence in the
record supports defendant’s decision to deny
plaintiff benefits in addition to those benefits
already provided. Plaintiff cross-moves for
summary judgment, asserting that the
evidence in the record establishes that
plaintiff had an ongoing disability, or in the
alternative for a remand to the plan
administrator for reconsideration of her
claim. For the reasons set forth below, the
Court denies defendant’s motion, and grants
plaintiff’s motion to the extent that
plaintiff’s claim is remanded to Aetna for
reconsideration.

I. BACKGROUND1

authority. It must not abuse its
discretion by acting arbitrarily
and capriciously. Aetna has the
right to adopt reasonable:

A. The Plan
The Plan is an employee welfare benefit
plan governed by ERISA.
(“ERISA
Rights,” VAL 38-39.) Hubbard established
and maintains the Plan to provide LTD
benefits to eligible employees, and Aetna
acts as the Plan’s claims administrator. (Id.)






Of this policy to promote orderly
and efficient administration.

1. Discretionary Authority
The Plan provides that:

(“Policyholder and Insurance Company
Matters” at “ERISA Matters,” VAL 105.)

Under Section 503 of Title 1 of
the Employee Retirement Income
Security Act of 1974, as
amended (ERISA), Aetna is a
fiduciary. It has complete
authority to review all denied
claims for benefits under this
policy. In exercising such
fiduciary responsibility, Aetna
shall have discretionary authority
to:




policies;
procedures;
rules; and
interpretations;

2.

Eligibility for LTD Benefits

The Plan provides that
From the date that you first
become disabled and until
Monthly Benefits are payable for
24 months, you will be deemed
to be disabled on any day if:


Determine whether and to
what extent employees and
beneficiaries are entitled to
benefits; and
Construe any disputed or
doubtful terms of this policy.



Aetna shall be deemed to have
properly
exercised
such

You are not able to perform
the material duties of your
own
occupation
solely
because of disease or injury;
and
Your work earnings are 80%
or less of your adjusted
predisability earnings.

After the first 24 months that any
Monthly Benefit is payable
during a period of disability, you
will be deemed to be disabled on
any day if you are not able to
work
at
any
reasonable
occupation solely because of:

1

Unless otherwise indicated, all facts cited are
undisputed. Further, all facts cited to Bates-stamped
documents are taken from the Plan documents
(VALENTINE (“VAL”) 1-105), which were annexed
as Exhibit A to the Declaration of Ana Molina
(“Molina Decl.”) in support of defendant’s motion
for summary judgment, and from Valentine’s claim
file (VAL 106-837), i.e. the administrative record,
which was annexed as Exhibit B to the Molina Decl.
(See ECF No. 19.)



2

Disease; or
Injury.

(“Long Term Disability Coverage” at “Test
of Disability,” VAL 4 (emphasis in
original).) The Plan further states that:

B. Plaintiff’s Disability
Valentine was employed by Reelz TV,
an affiliate of Hubbard, as a Director of Ad
Sales Planning starting on or about
December 1, 2008, until her last day of work
on November 15, 2011. (VAL 729.)
Plaintiff’s salary at the end of her
employment was approximately $225,000
plus commissions, amounting to gross pay
of $316,868.56 in 2011. (Id. at 490, 722.)
Plaintiff’s job description reflects that some
of her duties were to conduct negotiations
on advertising time, create marketing
platforms, maintain current business while
“aggressively” seeking new business,
interact with clients/agencies and account
executives including entertaining them at
industry events, present competitive
research, and travel out of town. (Id. at 65253.) It also notes that her position required
“average sitting, standing, and office-type
movement,” the “ability to stand and present
to a group for many hours,” the “ability to
travel via taxi, bus, personal car, commercial
airline & train,” and “average lifting,
moving and pulling abilities.” (Id. at 653.)

A period of disability starts on
the first day you are disabled as a
direct result of a significant
change in your physical or
mental condition occurring while
you are insured under this Plan.
You must be under the regular
care of a physician. (You will
not be deemed to be under the
regular care of a physician more
than 31 days before the date he
or she has seen and treated you in
person for the disease or injury
that caused the disability.)
Your period of disability ends on
the first to occur of:




The date Aetna finds you are
no longer disabled or the date
you fail to furnish proof that
you are disabled. . . .
The date an independent
medical exam report or
functional
capacity
evaluation fails to confirm
your disability. . . .

On or about April 4, 2012, Valentine
filed a claim for LTD benefits claiming to be
disabled and unable to work as of December
14, 2011 due to symptoms related to her
diagnosis of a “trigeminal nerve disorder,
unspecified” originally caused by an injury
to her trigeminal nerve during a root canal in
February 2010. (Id. at 107-108, 120, 122.)
Plaintiff alleged that her symptoms (which
increased in November 2011 after another
dental procedure) in combination with side
effects from prescribed medication included
“daily persistent headache” and “fatigue,
diminished memory, poor concentration,
clouded thought combined with constant
pain,” causing her neurocognitive effects
which limited her work performance. (Id. at
120-22.)

(“Long Term Disability Coverage” at “A
Period of Disability,” VAL 5 (emphasis in
original).)
The Plan further provides that benefits
are “payable after the elimination period
ends for as long as the period of disability
continues.”
(“Long Term Disability
Coverage” at “When Benefits Are Payable,”
VAL 5.) The elimination period under the
Plan is 180 days. (“Disability Coverage” at
“Long Term Disability Benefits,” VAL 33.)

3

Plaintiff’s treating physician for her
allegedly disabling condition during this
period was Dr. David Sirois, DMD, PhD, a
specialist in cranial nerve injuries.2 (Id. at
107, 122.)
Dr. Sirois submitted an
Attending Physician Statement (“APS”) in
support of plaintiff’s LTD claim, dated
March 30, 2012. (Id. at 731-32.) In it, Dr.
Sirois stated that plaintiff “suffers from
constant moderate to severe head and facial
pain which has also resulted in an unusual
pattern of pain and dysesthesia affecting the
back, occipital and upper extremity.” (Id. at
731.) In addition to the neurocognitive
issues, Dr. Sirois stated plaintiff exhibited
objective symptoms of “diminished strength
and widespread mechanical allodynia.”3
(Id.) Overall, he found that plaintiff was
“disabled from her usual work activity.”
(Id.)

of limitations.” (Id.) He also noted that he
had prescribed plaintiff a number of
medications, and that the side effects of
those medications were part of plaintiff’s
disability, though as plaintiff’s treatment
evolved he planned to adjust her
medications to ameliorate those effects.
(Id.) Dr. Sirois concluded that plaintiff’s
prognosis would be clearer after six months
of further treatment, i.e. through September
2012, and that he “reasonably expect[ed] she
would remain disabled” during that period.
(Id.) Dr. Sirois concurrently noted on the
Aetna APS form that plaintiff’s disability
began on December 14, 2011 and would be
continue “indefinite[ly] pending outcome to
ongoing treatment.” (Id. at 732.)
C. Initial Denial of Plaintiff’s Claim
Aetna claim analyst Elizabeth Wing
conducted a phone interview with plaintiff
on April 16, 2012, after which she referred
the claim to a nurse consultant, Jeanette
Stehly, for a review. (Id. at 121-26.) Stehly
reviewed plaintiff’s records and concluded
that her claim should be denied, finding that
Dr. Sirois’ APS indicated plaintiff “can
work sedentary and he has not imposed
restrictions yet it seems he is saying she is
impaired.”4 (Id. at 125.) Stehly stated that
Dr. Sirois did not provide sufficient “exam
findings, diagnostics, etc. to support
inability to perform job duties,” and
questioned how a trigeminal neuralgia could
cause plaintiff’s symptoms. (Id.)

Dr. Sirois noted that, although he had
noted mild improvement with treatment,
“overall the prognosis is poor in that her
condition is permanent and symptoms will
remain to some degree indefinitely.” (Id.)
Dr. Sirois stated, “There is no objective test
to prove or otherwise quantify her pain
condition and I must rely on her self-report

2

Valentine had previously seen other doctors for her
condition after the February 2010 root canal,
including her primary care physician Dr. Jeffrey
Loria and neurologist Dr. David Snyder. Sometime
prior to May 2010, after plaintiff complained about
numbness and pain resulting from the root canal, Dr.
Loria referred her for a brain MRI, the findings of
which were “nonspecific, not correlated [with] her
symptoms.” (VAL 664.) Dr. Loria also referred
plaintiff to Dr. Snyder for a consultation in June
2010, who found that Valentine’s cranial nerve,
motor, and gait examinations were generally normal,
and that plaintiff was “alert oriented, and cooperative
with normal memory, language, and speech” though
she was “rather anxious.” (Id. at 683.)

After requesting and receiving further
information from Valentine, including the
older evaluations from Dr. Loria and Dr.
Snyder, Wing conducted a phone interview

4

Stehly did not provide any further detail, and upon a
review of the March 30, 2012 APS from Dr. Sirois,
the Court cannot discern these purported
inconsistencies.

3

Dr. Sirois frequently described mechanical
allodynia as “light touch perceived as painful.”

4

with Dr. Sirois on May 14, 2012. (Id. at
152-53, 157.) During the interview, Dr.
Sirois averred that his original APS was
intended to state that plaintiff was disabled
due to illness and pain, and that he would fill
out a new APS if it would be helpful; though
some of her symptoms (the diminished
memory and poor concentration) were based
on “self reports” and not on formal or
structured testing, Dr. Sirois said he believed
plaintiff’s complaints, and that both the
distraction caused by her illness/pain and the
medications would cause her “fogged
memory and difficulties in thought process.”
(Id. at 157.) The file was then referred back
to Stehly, who again found that the records
submitted were insufficient to support a
finding of a functional impairment, pointing
to the “highly subjective” nature of the
claim and the lack of examination results to
support a finding that plaintiff was unable to
perform physical work. (Id. at 163.)

from working her own medium level
occupation.” (Id. at 347.)
Dr. Rim
suggested that a “formal neuropsychological
test would be helpful for the continued
evaluation of the claimant’s proclaimed
functional impairments related to cognitive
deficits.” (Id. at 348.)
Defendant subsequently notified plaintiff
by letter dated May 29, 2012, that her claim
for LTD benefits had been denied.6 (Id. at
220-21.) Plaintiff was advised that she was
entitled to appeal her claim, and that she
could submit in support, among other things,
“a detailed narrative report for the period
11/15/2011 to the present outlining the
specific physical and/or mental limitations
related to your condition that your doctor
has placed on you as far as gainful activity is
concerned, physician’s prognosis, including
course of treatment, frequency of visits, and
specific medications prescribed,” and
“diagnostic studies conducted during the
above period, such as test results, X-rays,
laboratory data, and clinical findings.” (Id.
at 221.)

Defendant then referred plaintiff’s claim
file to an outside vendor for the retention of
an independent medical record peer review
physician consultant (“IPC”). (Id. at 34348.) The IPC for the initial review of
plaintiff’s claim was Dr. Choon Rim, a
neurologist. (Id.) Following a review of the
records and a conversation with Dr. Sirois,5
Dr. Rim, echoing Stehly, found that
plaintiff’s records did not support a finding
of a functional impairment because her selfreported symptoms of pain and cognitive
dysfunction “do not translate into functional
impairments,” and she was “not restricted

D. Plaintiff’s Appeal of the Initial
Claim Denial
Plaintiff, via her counsel, filed an appeal
letter on November 5, 2012, arguing that
Aetna failed to “fully address the vocational
limitations caused by [plaintiff’s] medical

6

The Court notes that, around the time defendant
notified plaintiff of the denial of her claim, Dr. Sirois
submitted updated APS forms to Aetna dated May
24, 2012, in which he stated that Valentine was
restricted from working because she was unable to
perform the cognitive tasks required of her
occupation due to widespread mechanical allodynia
caused by her condition and the side-effects of her
medication, and that he expected plaintiff to be able
to return to “modified duty” work on or about
September 1, 2012, consistent with his prior APS
forms.

5

During this conversation, Dr. Sirois allegedly stated
that plaintiff was physical able to perform sedentary
work, but that she was unlikely to be able to perform
her previous duties in her job at Hubbard given her
cognitive complaints. (VAL 346.) The Court notes
that, as described supra, plaintiff’s job required an
average amount of physical activity, including the
“ability to stand and present to a group for many
hours.”

5

condition which manifests in chronic pain
and causes [plaintiff] significant diminution
of her ability to concentrate, requires her to
take unscheduled breaks and whole or
partial days off, and negatively affects her
ability to deal with stress and interact with
others. It is our contention that [plaintiff’s]
medically determinable condition causes
severe pain which precludes her ability to
return to the highly skilled and highly
stressful executive position she had for
Hubbard and has required her to attempt a
less stressful and skilled position.”7 (Id. at
355-59.) On December 3, 2012, plaintiff
submitted a supplementary appeal letter,
attaching additional supporting records and
documents. (Id. at 416-25.) The documents
included, among other things: an updated
narrative report from Dr. Sirois dated
November 29, 2012 (id. at 497-501) and his
supporting office visit notes (id. at 503-26);
a report prepared by a retained vocational
expert, Andrew Pasternak, M.A., CRC (id.
at 461-67); a sworn affidavit from plaintiff
dated November 30, 2012, describing her
symptoms and physical limitations (id. at
457-59); and various Internet articles
regarding plaintiff’s condition. (Id. at 43855.)

. . . an approximate 50%
reduction in overall pain
intensity.
However, she still
experiences frequent episodes of
intense flaring pain. In addition
to pain in the upper right oral
quadrant and face, she also
experiences:
dysmorphic
phantom sensations, hyperacusis,
extreme
sensitivity
to
environmental stimuli (touch,
sound), occipital pressure pain,
and weakness/dysesthesia of the
right arm. . . . She is taking
several medications . . . and
experiences predictable side
effects which additionally impair
her quality of life and her ability
to work, including: fatigue,
sleepiness,
dizziness,
disorientation,
cognitive
impairment
(reduced
concentration, memory, focus);
less able to multi-task and to
manage
complex
decision
making.
(Id. at 500.) Dr. Sirois’ narrative and office
notes reflect that, although plaintiff showed
signs of improvement, during each of her
full medical examinations (on March 28,
May 23, July 11, August 28, September 19,
and November 21) plaintiff consistently
exhibited the objective symptom of
mechanical allodynia, as well as the other
subjective symptoms and side effects. (Id.
at 497-501.) For example, on September 19,
plaintiff informed Dr. Sirois that she
continued
to
experience
“global
improvement,” but also that she suffered
from “flaring symptoms,” including an
episode of the worst occipital pressure she
had ever suffered, as well as a new “right
foot numbness every other day [associated]
with night time dysesthesia lasting ~2

Dr. Sirois’ narrative summarized his
treatment of plaintiff from March 28, 2012
(the date of the visit prior to the completion
of his previous APS form) onward,
including synopses of his visit notes. He
stated, since beginning treatment, plaintiff
had experienced:

7

Around the end of August 2012, plaintiff returned to
work as an account executive for a different
employer, which plaintiff described as a “sales job”
without the executive functions or travel
requirements of her position at Hubbard. (VAL 458.)
The position allegedly paid a much lower base wage
of $135,000. (Id.) Plaintiff expressly declined to
supply a release authorizing defendant to contact her
new employer. (Id. at 416.)

6

hours.” (Id. at 499.) Plaintiff’s medications
continued to cause the same side effects of
dizziness, fogginess, and diminished
concentration. (Id. at 497-500.)

life and work performance, and
may always experience transient
pain
flares
that
resolve
spontaneously
or
following
medication adjustment.

Dr. Sirois also listed plaintiff’s
restrictions, which he stated were in large
part “self-reported by Ms. Valentine and
have not been formally assessed/tested.
However, her limitations are entirely
consistent with her pain and medications,
and in my years of experience as a
recognized expert in persistent neuropathic
pain are accurate and credible. Additionally,
some of her most impactful symptoms (pain,
impaired
cognitive
performance,
hypersensitivity to environmental stimuli)
have no objective, validated method of
assessment.” (Id. at 501.) Dr. Sirois stated
plaintiff should be restricted in, among other
things, her exertion (limits on her ability to
lift things above ten pounds or over her
shoulders including a computer bag, or
walk/stand
due
to
dizziness
or
disorientation), manual dexterity (limits on
her right arm to conduct tasks such as
grasping, holding, and writing), and her
participation in “high-pressure situations
which require quick decision making,
complex decision making, and multi-tasking
. . . due to medication side effects or as the
direct result of her pain/sensory symptom
intensity.” (Id.) Overall, Dr. Sirois stated
that:

(Id. at 500.)
The report from vocational expert
Pasternak, dated November 4, 2012, largely
aligned with Dr. Sirois’ assessment.
Pasternak interviewed plaintiff by phone and
in person, reviewed her medical reports, and
conducted research in recognized vocational
resources. (Id. at 461-62.) Pasternak also
reviewed plaintiff’s new employment, which
he
described
as
having
fewer
responsibilities, including being under the
supervision of someone occupying a
position comparable to plaintiff’s old job at
Hubbard. (Id. at 465.) In sum, Pasternak
found that plaintiff was “incapable of
performing the duties of her former position
as a Vice President of Sales/Marketing,”
given her moderate to severe restrictions in a
number of areas, including the ability to
maintain attention and concentration and to
perform simple or complex tasks repetitively
over a period of time.
(Id. at 466.)
Pasternak attributed this to plaintiff’s
chronic pain and its cognitive effects, her
“Type A” personality, and the “extremely
stressful and stress-producing” nature of her
position at Hubbard. (Id. at 466-67.)
Plaintiff’s affidavit further elaborated on
the
symptoms
she
allegedly
was
experiencing day-to-day.
In particular,
plaintiff described that the “neuralgia and
permanent nerve damage” she had suffered
and the side effects of the multiple
medications she was taking caused her to
have sensitivity to atmospheric noise or
voices on the phone; sensitivity to touch,
causing difficulty in traveling; inability to
focus, and headaches when she attempts to

[I]n my experience [plaintiff[]
will continue current treatment in
principal for several years. She
has a permanent (lifetime) risk
for her neuropathic symptoms to
resume/continue. I predict that
she will continue to improve
during next 3-4 years to a point
of
significant
pain
and
medication reduction that results
in minimal impact on quality of
7

work on one task for an extended period;
effects on memory; drowsiness; and extreme
pain. (Id. at 457-58.) Plaintiff noted that
she had returned to work in a lesser capacity
than her previous position, but that she was
unsure if she would be able to continue due
to her condition. (Id. at 458-59.)

in his IPC report reference Pasternak's
vocational expert report, Dr. Sirois’
November 29, 2012 narrative, or any of the
examinations Dr. Sirois conducted of
plaintiff subsequent to March 30, 2012. Dr.
Rubin’s summary of plaintiff’s medical
history ends with a rundown of plaintiff’s
March 30, 2012 office visit, and what
appears to be a summary of Dr. Sirois’ prior
APS narrative, issued that same day. (Id. at
281-82.)

E. Defendant Partially Reverses the
Initial Denial of the Claim
After receiving plaintiff’s submitted
records and examination reports, defendant
again referred plaintiff’s file to another IPC,
Dr. Stuart Rubin, who is certified in
Physical Medicine and Rehabilitation. (Id.
at 280, 283.) Dr. Rubin reviewed the claim
record and called Dr. Sirois on three
occasions to conduct a peer-to-peer
consultation, but was unable to reach him,
and Dr. Sirois did not return the calls.8 (Id.
at 282.)

Dr. Rubin issued his report on January
30, 2013, and concluded that the records and
examinations supported a finding of
plaintiff’s functional impairment from the
initial date of the claim through June 30,
2012. (Id.) Specifically, Dr. Rubin found
that the records showed that plaintiff was
suffering from impairments including
“chronic neuropathic pain affecting the face,
allodynia,
diminished
neurocognition,
diminished
memory,
and
poor
concentration” from December 14, 2011
through March 30, 2012; Dr. Rubin,
however, opined that “[i]t is reasonable that
these impairments will continue for another
three months through 6/30/12.” (Id.)

Notably, the “brief claim synopsis”
section of the report describes the full
contents of plaintiff’s claim file as reviewed
by Dr. Rubin, including Dr. Sirois’ letter of
November 29, 2012 and his office visit notes
through September 29, 2012 (id. at 280-81),
but Pasternak’s report and plaintiff’s
affidavit are not listed. Further, in Dr.
Rubin’s description of his “clinical file
review,” he outlines plaintiff’s medical
history based on his review of plaintiff’s
file, but only through March 30, 2012.9 (Id.
at 281-82.) Dr. Rubin does not at any point

Dr. Rubin stated that “[f]unctional
impairment is not supported from 7/1/12
through 8/19/12.10 The rationale for this is
based on the paucity of records which
describe the patient’s physical examinations,
cognitive
evaluations,
or
functional
examinations or correlation of such during
the time period in question.” (Id.) Dr. Rubin
noted that, during the period of functional

Defendant also notified plaintiff’s counsel by letter
dated January 22, 2013, that the claim had been
referred to the IPC. (VAL 234.) Defendant also
advised plaintiff that it was attempting to reach her
treating physician, so resolution of the appeal would
be somewhat delayed. (Id.)
9
This section states that plaintiff’s “job description
was reviewed from 4/26/12,” but does not reference
any other files, records, or information dated
subsequent to March 30, 2012.
8

Though plaintiff’s claim included a request for
continuing benefits after August 19, 2012, Dr. Rubin
appears to have been under the mistaken impression
that this was the end date of the claim. This may
explain his failure to discuss some of the records
subsequent to that date in his report, such as
Pasternak’s report and Dr. Sirois second narrative
and office visit notes.
10

8

impairment, claimant would not have been
able to perform the “significant cognition
demanding tasks” of her position at Hubbard
“in an effective or safe manner.” (Id.) Dr.
Rubin stated that the records reflected that
plaintiff’s
medications—which
she
continued to be prescribed well through and
after August 19, 2012, according to Dr.
Sirois’ notes—were causing her side effects
including “poor cognition, poor memory,
and decreased neurocognition and poor
focus ability.” (Id. at 283.)

II. PROCEDURAL HISTORY
Plaintiff filed the complaint on March
18, 2014. On April 25, 2014, defendant
filed its answer. On October 22, 2014,
defendant filed its motion for summary
judgment. On November 21, 2014, plaintiff
filed her cross-motion for summary
judgment. Defendant filed its reply in
support of its motion and opposition to
plaintiff’s motion on December 22, 2014.
Plaintiff filed her reply in support of her
cross-motion on January 9, 2015. Defendant
filed an additional reply in support of its
motion to strike plaintiff’s extra-record
submissions on January 16, 2015. The
Court heard oral argument on February 6,
2015. Defendant submitted a supplemental
letter regarding ERISA’s requirements
regarding the inclusion of certain language
in the Plan on February 11, 2015. Plaintiff
submitted a response on February 13, 2015.
The matter is fully submitted.

Aetna allegedly mailed Dr. Rubin’s IPC
report to Dr. Sirois on February 6, 2013, and
demanded that he review and respond to the
report (including whether or not he agreed
with the conclusions) within five calendar
days. (Id. at 234.) Dr. Sirois did not
respond. On March 1, 2013, defendant
notified Valentine that it had decided to
adopt the opinion of Dr. Rubin, partially
overturn its previous denial of her claim and
grant her benefits through June 30, 2012,
noting that the IPC found that plaintiff’s
functional impairment was supported by the
medical records through March 30, 2012,
and it would have been reasonable to expect
those impairments to continue only for
another three months.
(Id. at 237.)
Defendant’s letter, which for the most part
mirrors Dr. Rubin’s report, did not reference
any of the medical examinations or reports
from Dr. Sirois or Pasternak subsequent to
March 30, 2012. The letter stated, “There is
a lack of medical findings (i.e. examination
findings as of July 1, 2012, cognitive
evaluations, or functional examination or
correlations, etc.) to support Ms. Valentine’s
inability to perform the material duties of
her own occupation from July 1, 2012 and
onward.” (Id.)

III. STANDARD OF REVIEW
A. Summary Judgment
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(c), a court may not grant
a motion for summary judgment unless “the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file,
together with affidavits, if any, show that
there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ.
P. 56(c); Globecon Group, LLC v. Hartford
Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.
2006). The moving party bears the burden
of showing that he or she is entitled to
summary judgment.
See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2004).
The court “is not to weigh the evidence but
is instead required to view the evidence in
9

the light most favorable to the party
opposing summary judgment, to draw all
reasonable inferences in favor of that party,
and to eschew credibility assessments.”
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 122 (2d Cir. 2004); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (holding that summary judgment is
unwarranted if “the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).

B. Benefit
ERISA

Determinations

Under

A denial of benefits under ERISA “‘is to
be reviewed under a de novo standard unless
the benefit plan gives the administrator or
fiduciary
discretionary
authority
to
determine eligibility for benefits or to
construe the terms of the plan.’” Krauss v.
Oxford Health Plans, Inc., 517 F.3d 614,
622 (2d Cir. 2008) (quoting Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)). “If the insurer establishes that it
has such discretion, the benefits decision is
reviewed under [an] arbitrary and capricious
standard.” Id.; see also Celardo v. GNY
Automobile Dealers Health & Welfare
Trust, 318 F.3d 142, 145 (2d Cir. 2003)
(“The Supreme Court . . . has indicated that
plans investing the administrator with broad
discretionary authority to determine
eligibility are reviewed under the arbitrary
and capricious standard.”).

Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material facts .
. . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). As the Supreme Court stated in
Anderson, “[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials, but must set forth
“concrete particulars” showing that a trial is
needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(internal quotations omitted). Accordingly,
it is insufficient for a party opposing
summary judgment “merely to assert a
conclusion without supplying supporting
arguments or facts.” BellSouth Telecomms.,
Inc. v. W.R. Grace & Co., 77 F.3d 603, 615
(2d Cir. 1996) (internal quotations omitted).

Here, the Plan explicitly affords
defendant such discretionary authority.11

11

Plaintiff originally argued in the briefing that the
arbitrary and capricious standard did not apply
because the Plan included language stating: “The
people who operate your Plan, called ‘fiduciaries’ of
the Plan, have a duty to do so prudently and in your
interest and that of other plan participants and
beneficiaries. . . .” (See, e.g., Pl.’s Reply, ECF No.
30, at 5-6 (citing VAL 39).) Plaintiff argued that,
because of this language regarding Aetna’s fiduciary
duty, defendant’s discretion in adjudicating plaintiff’s
claim was somehow constrained. (Id.) At oral
argument and in a supplementary letter (ECF No.
34), defendant noted that the Department of Labor
(“DOL”) in 29 C.F.R. § 2520.102-3(t)(1)—pursuant
to its authority to “require that the administrator of
any employee benefit plan furnish . . . a statement of
the rights of participants and beneficiaries under
[ERISA]” under section 1024(c) of ERISA—
mandates that ERISA plan administrators include
language similar to the above as a statement of
beneficiary rights. 29 C.F.R. § 2520.102-3(t)(2)
provides proposed form language which is nearly

10

Therefore, the Court will apply the arbitrary
and capricious standard in reviewing
Aetna’s decision to deny plaintiff her full
claim benefits as well as the appellate
process Aetna provided plaintiff.
See
Zervos v. Verizon New York, Inc., 277 F.3d
635, 647-48 (2d Cir. 2002) (affirming
district court’s holding that insurer’s
appellate process was “arbitrary and
capricious”); see also Marasco v.
Bridgestone/Firestone, Inc., No. 02-CV6257, 2006 WL 354980, at *4 (E.D.N.Y.
Feb. 15, 2006) (“Under ERISA, a plan
administrator must provide an employee
whose claim for benefits has been denied
with a ‘full and fair review.’ 29 U.S.C. §
1133(2). Failure to conduct a ‘full and fair
review’ can be grounds for finding that a
plan administrator’s decision was arbitrary
and capricious.’”) (citing Crocco v. Xerox
Corp., 137 F.3d 105, 108 (2d Cir. 1998)).

Health Plan, 287 F.3d 96, 104 (2d Cir.
2002)).
In particular, “[s]ubstantial
evidence is ‘such evidence that a reasonable
mind might accept as adequate to support
the conclusion reached by the [administrator
and] . . . requires more than a scintilla but
less than a preponderance.’” Celardo, 318
F.3d at 146 (quoting Miller v. United
Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.
1995)).
Thus, [u]nder the arbitrary and
capricious standard, the scope of judicial
review is narrow.” Celardo, 318 F.3d at
146; see also Miller, 72 F.3d at 1070
(“When an employee benefit plan grants a
plan fiduciary discretionary authority to
construe the terms of the plan, a district
court must review deferentially a denial of
benefits. . . .”); Lee v. Aetna Life and Cas.
Ins. Co., No. 05 Civ. 2960, 2007 WL
1541009, at *4 (S.D.N.Y. May 24, 2007)
(“Under the arbitrary and capricious
standard of review, Aetna’s decision to
terminate benefits is entitled to deference. . .
.”); Butler v. New York Times Co., No. 03
Civ. 5978, 2007 WL 703928, at *3
(S.D.N.Y. Mar. 7, 2007) (“Under the
‘arbitrary and capricious’ standard the scope
of review is a narrow one. A reviewing
court must consider whether the decision
was based on a consideration of the relevant
factors and whether there has been a clear
error of judgment.’” (quoting Bowman
Transp. Inc. v. Ark. Best Freight Sys., 419
U.S. 281, 285 (1974))); Greenberg v. Unum
Life Ins. Co. of America, No. 03-CV-1396,
2006 WL 842395, at *8 (E.D.N.Y. Mar. 27,
2006) (“Decisions of the plan administrator
are accorded great deference: the court may
not upset a reasonable interpretation by the
administrator. . . . Accordingly, it is
inappropriate in this setting for the trial
judge to substitute his judgment for that of
the plan administrator.”) (citations and
quotation marks omitted).

In particular, according to the Second
Circuit, an administrator’s decision is
arbitrary and capricious “if it was ‘without
reason, unsupported by substantial evidence
or erroneous as a matter of law.’” Krauss,
517 F.3d at 623-24 (quoting Fay v. Oxford

identical to the fiduciary language cited by plaintiff
from the Plan. Plaintiff in her supplementary letter
concedes that the language in the Plan was
“substantially similar to the model language,” and
seemingly agrees that the arbitrary and capricious
standard applies in the case at bar, though she
maintains that the defendant’s “broad range of
discretion” did not allow it to “abandon its position as
fiduciary and act like a party seeking profit in an
arm’s length transaction.” (ECF No. 35.) In any
event, the Court agrees with defendant that the
arbitrary and capricious standard applies in this case.
Accepting plaintiff’s argument would eviscerate the
applicability of the arbitrary and capricious standard,
because it would mean that the standard could not be
applied to claims decisions made by administrators of
any ERISA plan containing similar “fiduciary”
language—which would be every plan and every
claims decision, given that the language is required
by DOL regulation.

11

C. Role of the Administrative Record

arbitrary and capricious, it is proper to
consider nothing more and nothing less than
the administrative record.”), aff’d, 232 F.
App’x 23 (2d Cir. 2007); Gaboriault v. Int’l
Bus. Machines Corp., No. 05-CV-91, 2006
WL 3304213, at *1 (D. Vt. Nov. 13, 2006)
(“Where a plan grants the plan fiduciary
such discretionary authority, the Court is
required to limit its review of a denial of
benefits to the administrative record. . . .”).
Therefore, in analyzing whether Aetna’s
decisions were arbitrary and capricious, the
Court has confined its review to the
administrative record.12

“The legal standard for considering
evidence outside the administrative record
depends on the standard of review to be
applied to the claim. For a de novo review
of the administrator’s decision, ‘the district
court ought not to accept additional evidence
absent good cause.’ [Zervos, 277 F.3d at
646.] For a review under the ‘arbitrary and
capricious’ standard, however, ‘a district
court’s review . . . is limited to the
administrative record. Miller, 72 F.3d at
1071.” Parisi v. Unumprovident Corp., No.
03-CV-1425, 2007 WL 4554198, at *8 (D.
Conn. Dec. 21, 2007); see Miller, 72 F.3d at
1071 (“We follow the majority of our sister
circuits in concluding that a district court’s
review under the arbitrary and capricious
standard is limited to the administrative
record.”); Fitzpatrick v. Bayer Corp., No. 04
Civ. 5134, 2008 WL 169318, at *9
(S.D.N.Y. Jan. 17, 2008) (“In assessing
whether the decision of the administrator
was reasonable, the court may not consider
extrinsic matters but must remain within the
bounds of the administrative record
considered by the plan’s decision-maker.”)
(citation and quotation marks omitted);
Leccese v. Metro. Life Ins. Co., No. 05-CV6345, 2007 WL 1101096, at *5 (W.D.N.Y.
Apr. 12, 2007) (“The Second Circuit has
considered whether a district court should
consider evidence that was not before the
plan administrator and held that additional
evidence may be considered upon de novo
review of an issue of plan interpretation.
However, since the parties agree that the
standard of review in this case is arbitrary
and capricious, the Court is limited to a
review of the record as it existed before the
plan
administrator.”)
(citations
and
quotation marks omitted); Nelson v. Unum
Life Ins. Co. of Am., 421 F. Supp. 2d 558,
572 (E.D.N.Y. 2006) (“Thus, in determining
whether Unum’s denial of benefits was

IV. DISCUSSION
Defendant argues that its decision to
deny plaintiff any benefits beyond June 30,
2012, was not arbitrary and capricious
because plaintiff did not submit sufficient
evidence, such as clinical findings or
objective test results, to support a functional
impairment after that date.13 Plaintiff, on
Defendant’s motion to strike plaintiff’s extrarecord submissions—(1) Valentine’s November 16,
2014 affidavit (ECF No. 27-4), and (2) paragraphs 412 and Exhibits 1-3 of the Epstein Declaration (ECF
No. 27-5)—is therefore granted, because those
materials were not in front of defendant, the plan
administrator, at the time it reviewed plaintiff’s
claim. Those materials have therefore not been
considered by the Court in deciding the motions for
summary judgment. Plaintiff’s arguments in support
of the consideration of those materials—that the
materials are relevant and were created as soon as
possible after Aetna decided to partially reverse its
initial denial of plaintiff’s claim on appeal, and that
defendant allegedly denied plaintiff’s request to
reopen the appeal (see Pl.’s Reply, ECF No. 30, at 78)—are unavailing given the clear rule that prohibits
consideration of materials outside the administrative
record under these circumstances.
13
Under Second Circuit law, plaintiff “has the burden
of proving by a preponderance of the evidence that
[s]he is totally disabled within the meaning of the
plan.” Paese v. Hartford Life and Accident Ins. Co.,
449 F.3d 435, 441 (2d Cir. 2006) (citation and
quotation marks omitted); see also Vormwald v.
12

12

the other hand, argues that there was ample
evidence in the record, including consistent
and clear clinical examination findings from
Dr. Sirois and the Pasternak report, to
support a finding that plaintiff was disabled
such that she could not perform the duties of
her position at Hubbard. Plaintiff argues
that defendant’s failure to address that
evidence in its evaluation of her claim
denied her a full and fair review.14

disorders—and, in turn, courts reviewing
challenges to denials of those claims—are
not required to take such assertions of
incapacity at face value, they may not
dismiss them out of hand without adequate
attention to the claimant’s complaints. In
Miles v. Principal Life Ins. Co., the plaintiffappellant, a partner in a law firm, claimed
that he was forced to stop working due to
“bilateral tinnitus (high frequency noises in
both ears), intractable ear and head pain, and
a feeling of disorientation.” 720 F.3d 472,
475-76 (2d Cir. 2013). During the LTD
insurance company’s initial review of the
claim, it found that plaintiff-appellant’s
complaints were almost entirely subjective,
and two independent reviewing physicians
hired by Principal, the defendant-appellee
LTD insurance company, found that there
was a lack of objective findings to support
restrictions
on
work
activities
or
neurological impairments. Id. at 479-80.
Principal therefore initially denied the claim,
informing Miles that if he were to appeal, he
should provide “medical information,
testing, and results to meet his burden of
proof,” including such items as “[r]esults of
cognitive testing with findings of the
severity that they [sic] impact your ability to
concentrate.” Id. at 481 (internal quotation
marks omitted). Miles appealed the initial
denial of his claim, and submitted additional
medical records in support of his appeal,
including updated reports and testing from
his doctors as well as a report from a
physical therapist and a new ear, nose, and
throat specialist.15 Id.
Principal again
retained independent physicians to review

“It has long been the law of this Circuit
that ‘the subjective element of pain is an
important factor to be considered in
determining disability.’” Connors v.
Connecticut Gen. Life Ins. Co., 272 F.3d
127, 136 (2d Cir. 2001) (quoting Mimms v.
Heckler, 750 F.2d 180, 185 (2d Cir. 1984.)
Although plan administrators adjudicating
claims involving such inherently subjective

Liberty Mut. Life Assurance Co. of Boston, No. 05CV-671, 2007 WL 2461781, at *3 (N.D.N.Y. Aug.
23, 2007) (“The claimant has the burden of proving
by a preponderance of the evidence that she is
disabled in accordance with the plan’s terms.”);
Graham v. First Reliance Standard Life Ins. Co., No.
04 Civ. 9797, 2007 WL 2192399, at *1 (S.D.N.Y.
July 31, 2007) (“Plaintiff bears the burden of proving
that he is totally disabled within the meaning of the
plan by a preponderance of the evidence.”);
Alexander v. Winthrop, Stimson, Putnam and Roberts
Long Term Disability Coverage, 497 F. Supp. 2d
429, 434 (E.D.N.Y. 2007) (“Plaintiff bears the
burden of proving her entitlement to benefits.”).
14
Plaintiff further asserts that the record shows that
the inherently subjective nature of plaintiff’s
trigeminal nerve condition, in which her pain and the
side effects of her medications are primary drivers of
her disability, means that objective testing is neither
effective nor necessary to establish plaintiff’s
disability, and that defendant had the ability to send
plaintiff for neurocognitive testing during the claims
process but chose not to. Plaintiff also argues that
defendant’s position is undermined by its adoption of
Dr. Rubin’s report, which found sufficient evidence
to demonstrate a functional impairment through
March 30, 2012, plus a three-month continuation
period, without addressing the comparable evidence
in the record subsequent to that date.

One of Miles’ doctors noted, “It is a roaring
tinnitus which is constantly in [Miles’s] head. In
addition, he has significant ongoing headaches due to
the tinnitus. He has been fully worked up and has had
all treatment modalities that are available, yet despite
this, the hearing loss has remained profound. . . . [The
tinnitus] is a subjective complaint.” Miles, 720 F.3d
at 481.
15

13

the claim, who again found that—despite the
diagnosis by Miles’ treating physicians
based on their assessment of his subjective
complaints as well as some objective
findings such as “hearing loss” and
“vestibular weakness”—the “objective data”
in the record suggested that he had “no
physical limitations or restrictions” and his
“self-reported complaints cannot be
explained by any known neurological
condition.” Id. at 483-84 (emphasis in
original). Principal therefore again denied
the claim, and the district court upheld the
denial of the claim, holding that Principal
“(1) reasonably relied on Miles’s failure to
demonstrate ‘restrictions and limitations’ as
a basis to deny his claim; (2) did not err by
failing to expressly state whether it credited
Miles’s subjective complaints; and (3)
reasonably required objective proof of a
significant impairment.” Id. at 484-85.

assertions that are contradicted by the
record.” Id. at 489-90. For example,
Principal appeared to ignore aspects of the
record which explained the uptick in the
claimant’s symptoms before he left work
and instead stated that he “failed to explain
why he ceased work,” which the court found
was “a selective reading of the record that is
not reasonably consistent with the record as
a whole.” Id. at 489. Therefore, the Second
Circuit reversed the district court, and
instructed it to return the matter to the plan
administrator for reconsideration of the
claim on the full evidentiary record. Id. at
490.
Here, after a careful review of the
administrative record with respect to
Valentine’s claim, the Court finds that this
case bears a strong resemblance to Miles.
Dr. Rubin’s IPC report—which defendant
cites as the basis for its partial reversal of
the initial denial of plaintiff’s claim, wherein
it accepted plaintiff’s claim through June 30,
2012, and denied her benefits subsequent to
that date (see VAL 237; Def.’s Mem. of
Law, ECF No. 22, at 22-23)—is utterly
perplexing when compared to the
administrative record.
Dr. Rubin first
determined that plaintiff’s functional
impairment was supported through March
30, 2012, based on her subjective complaints
and the supporting medical records
regarding her “chronic neuropathic pain
affecting the face, allodynia, diminished
neurocognition, diminished memory, and
poor concentration.” (VAL 282.) Dr. Rubin
then opined, without further explanation,
that it “is reasonable that these impairments
will continue for another three months
through 6/30/12.”16 (Id.) Dr. Rubin then

The Second Circuit vacated the decision
of the district court for several reasons.
First, the Second Circuit found that Principal
erred by failing to “give adequate attention
to Miles’s subjective complaints, as it failed
to either assign any weight to them or to
provide specific reasons for its decision to
discount them.” Id. at 486-88. The court of
appeals found that Principal’s disregard for
Miles’ subjective complaints solely because
of their subjectivity, without any other valid
reason to discount the evidence in the
record, was arbitrary and capricious. Id.
Second, the Second Circuit held that
Principal’s request for objective evidence
that Miles was suffering from tinnitus was
unreasonable, given that Principal did not
itself identify to the claimant any test which
would provide conclusive, objective
evidence of his impairment. Id. at 488-89.
Third, the Second Circuit found that
Principal “failed to support many of its
assertions with sound reasoning in the
record and, in some instances, made

16

The Court does not mean to say that physicians
cannot engage in reasoned analysis as to the
likelihood of symptoms continuing for some period
of time. Dr. Rubin’s statement here, however, is

14

supporting office visit notes, and plaintiff’s
affidavit—all of which reflect that plaintiff
was suffering from similar objective and
subjective symptoms, and was prescribed
similar medications, through the date of her
appeal—as well as the findings in the
Pasternak report. In fact, there is not a
single reference to any of these documents
in either Dr. Rubin’s IPC report or Aetna’s
final determination letter to plaintiff. This
omission could be partially explained by the
fact that some of these records—including
plaintiff’s affidavit and the Pasternak
vocational expert report—are not listed in
the “brief claim synopsis” section of Dr.
Rubin’s report as being part of the record he
reviewed.

stated that functional impairment was not
supported subsequent to June 30, 2012,
“based on the paucity of records which
describe the patient’s physical examinations,
cognitive
evaluations,
or
functional
examinations or correlation of such during
the time period in question.” 17 (Id.)
The Court finds these statements to be
entirely inconsistent with the overall
administrative record. Dr. Rubin clearly
credited plaintiff’s objective and subjective
symptoms—based on the supporting
medical records provided by Dr. Sirois—in
finding that her functional impairment was
proven through March 30, 2012, and
provided an extensive summary of Dr.
Sirois’ visit notes through that date in his
report.
Then, without explanation or,
indeed, any discussion whatsoever, Dr.
Rubin seemingly ignored the entire
administrative record subsequent to that
date, including the updated November 29,
2012 APS report from Dr. Sirois, the

Dr. Rubin instead concluded, without
explanation, that there was a “paucity of
records” to describe plaintiff’s medical,
cognitive, and functional examinations and
evaluations after March 30, 2012. Although
the Court does not conclude that the medical
records contained in Valentine’s claim file
irrefutably support a disability finding, the
administrative record in this case certainly
could not be described as having a “paucity”
of records regarding all of those topics
subsequent to March 30, 2012.
As
discussed above, Dr. Sirois’ APS report and
office visit notes alone describe multiple
medical examinations of plaintiff, in which
she showed some measure of improvement
over time, but nonetheless consistently
displayed the same objective and subjective
symptoms and medication side effects
(including mechanical allodynia, chronic
pain, tiredness, fogginess, and diminished
concentration) that Dr. Rubin described as
being present in the records prior to March
30, 2012. (VAL 497-526.)
Dr. Sirois
concluded that these symptoms caused her
to be functionally impaired such that she
could perform her old job at Hubbard
throughout this time.
(VAL 500-01.)

seemingly based on nothing more than conjecture
(pointing to nothing in the record or elsewhere as
support for his timeline), and directly contradicts the
estimates contained in Dr. Sirois’ reports and visit
notes as to how long plaintiff will continue to suffer
from her symptoms. (See, e.g., VAL 500 (“[Plaintiff]
has a permanent (lifetime) risk for her neuropathic
symptoms to resume/continue. I predict that she will
continue to improve during next 3-4 years to a point
of significant pain and medication reduction that
results in minimal impact on quality of life and work
performance, and may always experience transient
pain flares that resolve spontaneously or following
medication adjustment.”).)
17
Dr. Rubin also somewhat inexplicably asserted, in
response to a question on the IPC form as to the
restrictions or limitations imposed by plaintiff’s
treating physician during the claim period and
whether they were supported by the medical
evidence, that “[i]t is unclear why the claimant was
unable to work at all during the time period in
question.” (VAL 283.) This statement appears to
directly contradict Dr. Rubin’s conclusion that the
medical evidence supported plaintiff’s functional
impairment up until June 30, 2012.

15

Pasternak’s vocational expert report and
plaintiff’s affidavit provide additional
support for these findings. Aetna, therefore,
clearly failed to “assign any weight” or
“provide specific reasons for its decision to
discount” plaintiff’s subjective (or objective)
complaints, supported by the findings of her
treating physician and vocational expert.
Miles, 720 F.3d at 486-88. While defendant
is not required to accept plaintiff’s evidence,
including her subjective complaints, at face
value, it must “properly consider[] and
reject[]” that evidence “for specific reasons
supported by the record.”18 St. Onge v.
Unum Life Ins. Co. of Am., 559 F. App’x 28,
30 (2d Cir. 2014). Here, it is not clear to the
Court that defendant considered this
evidence at all.

objective evidence in the record. (See Def.’s
Mem. of Law at 20 (citing Hobson v. Metro.
Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009);
Fortune v. Long Term Group Disability
Plan for Employees of Keyspan Corp., 391
F. App’x 74, 77-79 (2d Cir. 2010); Schnur v.
CTC Comm. Corp. Group. Disability Plan,
No. 05 Civ. 3297 (RJS), 2010 WL 1253481,
at *14-15 (S.D.N.Y. March 29, 2010), aff’d,
413 F. App’x 377 (2d Cir. 2011); Orndorf v.
Paul Revere Life Ins. Co., 404 F.3d 510, 526
(1st Cir. 2005); Williams v. Aetna Life Ins.
Co., 509 F.3d 317, 322 (7th Cir. 2007)).)
The issue in those cases, however, was
whether or not the claim administrator was
entitled to deny the claim for a lack of
objective evidence or whether the competing
evidence was according the proper
comparative weight, not whether the review
of the claim failed to adequately address
significant portions of the evidence
submitted by the claimant. Those cases are,
therefore, unavailing here.19

Defendant points to a number of cases in
which courts have upheld the denial of LTD
claims involving disabilities largely based
on subjective complaints by the claimant
where the claims were unsupported by

19

The Court notes, however, that defendant appears
to argue that it was entitled to discount plaintiff’s
subjective complaints because it purportedly warned
plaintiff when her claim was initially denied that she
should support her appeal with objective or clinical
medical findings. Defendant is correct that the
Second Circuit has held that “it is not unreasonable
for a plan administrator to require [objective]
evidence [of a disability] so long as the claimant was
so notified.” Hobson, 574 F.3d at 88 (citing Johnson
v. Metro. Life Ins. Co., 437 F.3d 809, 813-14 (8th
Cir. 2006)). Although the claim administrator is
entitled to make the factual determination as to
whether a condition is amenable to objective clinical
findings, it must clearly identify what objective
findings are required to the claimant. See Miles, 720
F.3d at 488-89 (“Principal did not identify any
objective findings that, considering Miles’s
symptoms, it would reasonably have expected to see.
Under these circumstances, we conclude that it was
unreasonable for Principal to rely on the lack of
objective evidence of tinnitus to deny Miles’s
claim.”); Hobson, 574 F.3d at 88 (plaintiff
specifically informed of the need to provide “trigger
point findings” to support a diagnosis of
fibromyalgia). However, in this case, Dr. Rim’s IPC

At oral argument, defendant’s counsel offered his
opinion that the “only conclusion to be reached” is
that Dr. Rubin found some substantive difference in
plaintiff’s medical examinations that indicated her
condition had improved such that she was no longer
disabled, possibly based on plaintiff’s return to work
in August 2012 or Dr. Sirois’ statements in his APS
narrative that plaintiff had experienced some
reduction in pain intensity.
These possible
justifications, however, are not contained in Dr.
Rubin’s analysis (or anywhere else in the record),
and, thus, are based simply on counsel’s speculation.
The Court cannot divine such nuances in Dr. Rubin’s
analysis from the simple phrase “paucity of records,”
especially when (1) there is little indication that Dr.
Rubin reviewed any of the medical records after
March 30, 2012; (2) Dr. Rubin found plaintiff’s
disability to have ended on June 30, 2012, after a
“reasonable” three month period where (in his
opinion) her symptoms would have continued, not
because of any purported improvement; and (3)
plaintiff submitted significant medical evidence that
she was disabled through the date of her appeal
(comparable to the evidence Dr. Rubin credited in
granting plaintiff’s claim for the earlier period).
18

16

Valentine’s claim file, and are, therefore,
“not reasonably consistent with the record as
a whole.” Accordingly, the Court finds
Aetna’s partial denial of plaintiff’s claim to
have been arbitrary and capricious because it
failed to address substantial evidence in the
record.20

For these reasons, even under the
deferential standard of review that the Court
must accord to defendant’s claim
determination, the Court concludes that Dr.
Rubin’s report and Aetna’s corresponding
denial of plaintiff’s claim after June 30,
2012, failed to address substantial parts of

V. REMEDY
report only stated that a “formal neuropsychological
test would be helpful for the continued evaluation of
the claimant’s proclaimed functional impairments
related to cognitive deficits.” (VAL 348 (emphasis
added).) Although Aetna’s initial claim denial letter
to plaintiff noted the lack of “objective evidence of
neurological dysfunction” as a reason why her claim
was initially denied, defendant merely suggested that
plaintiff could submit (among other things) “clinical
findings” in support of her appeal, without any
specificity as to what objective findings it would
require to be shown through cognitive or
neuropsychological
testing
before
accepting
plaintiff’s claim. The Court, therefore, cannot find in
the record any support for defendant’s claim that it
expressly notified plaintiff that some particular
objective finding was required in order for her claim
to be successful. Moreover, though defendant argues
that plaintiff at all stages “failed to provide any
clinical findings from any physical examinations
conducted by her treating physicians, nor did she
provide test results from any formal or structured
cognitive testing as referenced in Aetna’s initial
adverse determination letter” (Def.’s Mem. of Law at
22)—apparently viewing Dr. Sirois’ reports
regarding plaintiff’s objective symptoms as
insufficient—such evidence clearly was not
absolutely required to find plaintiff’s condition
constituted a functional impairment, given that
defendant found plaintiff to be functionally impaired
through June 30, 2012, notwithstanding that
purported deficiency. (VAL 500.) Defense counsel at
oral argument argued that an administrator could be
entitled to accept plaintiff’s claim based on subjective
complaints for some period of time, but then at a
point require objective evidence to continue the
allowance of benefits; counsel did not offer (nor can
the Court find) any legal support for this standard,
and, moreover, under Hobson, that requirement
would also have had to be clearly stated to plaintiff.
Defendant, therefore, based on the administrative
record that currently exists in this particular case,
would not be entitled to rely on a purported lack of
objective findings to deny plaintiff’s claims solely
because her complaints are subjective in nature.

As discussed above, Aetna failed to fully
and fairly review aspects of plaintiff’s
evidence during its claim administration
process. The Court does not conclude that
Valentine’s claim, upon full consideration of
the record, must necessarily be granted. In
other words, the Court does not conclude
that there is no possible evidence that would
support a denial of benefits. The appropriate
remedy in this situation, therefore, as the
Second Circuit noted in Miles, is to return
this case to the administrator for
reconsideration based on the entire
administrative record. See id. at 490 (“Our
precedents make clear that even where we
conclude a plan administrator’s finding was
arbitrary and capricious, we will typically
not substitute our own judgment, but rather
will return the claim for reconsideration
unless we ‘conclude that there is no possible
evidence that could support a denial of
benefits.’ . . . Among other things, remand
will afford Principal the opportunity to
consider the evidence under the appropriate
legal standards and, if it wishes, to evaluate
Miles. We do not suggest that those are the
only appropriate considerations on remand,
and we intend no limitation by mentioning
them. Principal is expected to provide a full
and fair reconsideration of Miles’s claim.”
(quoting Miller v. United Welfare Fund, 72
F.3d at 1074)); see also Shore v.

In light of this conclusion, plaintiff’s argument that
defendant had a conflict of interest is moot, and the
Court does not address it.
20

17

Painewebber Long Term Disability Plan,
No. 04-CV-4152 (KMK), 2007 WL
3047113, at *14 (S.D.N.Y. Oct. 15, 2007)
(“At this time, the Court is not prepared to
find that Reliance is unwilling or unable to
fairly evaluate Plaintiff’s claim for benefits,
and Plaintiff points to nothing in the record,
other than Reliance’s denial of her claim,
that proves otherwise.”); Robinson v. Metro.
Life Ins. Co., No. 05 Civ. 1534 (LLS), 2006
WL 1317019, at *2 (S.D.N.Y. May 12,
2006) (granting summary judgment and
remanding claim for reconsideration because
“there is no basis for granting Ms.
Robinson’s claim and directing MetLife to
provide her with long-term disability
benefits. The record evidence is insufficient
to compel the finding that a reasonable
fiduciary must grant her claim.”).

Trust Fund of the Pension, Hospitalization
and Benefit Plan of the Elec. Indus., No. 00CV-2013, 2003 WL 21143087, at *12
(E.D.N.Y. Jan. 16, 2003)). “To that end,
[Aetna] is to reconsider and render its
decision within thirty days of receipt of . . .
any . . . evidence developed subsequent to
the filing of the cross-motions for Summary
Judgment. . . . The parties are directed to
report the status of the remand on the 60th
and 120th days after the date of this Opinion
and Order. All other proceedings before this
Court are stayed pending further order of the
Court, and the case is placed on the suspense
docket.” Shore, 2007 WL 3047113, at *15;
see also Badawy v. First Reliance Standard
Life Ins. Co., No. 04 CIV. 01619 (RJH),
2005 WL 2396908, at *14 (S.D.N.Y. Sept.
28, 2005) (“This court shall retain
jurisdiction of this matter, but the Clerk of
the Court is directed to close this case for
administrative purposes unless restored to
the active calendar on motion of any
party.”).

VI. CONCLUSION
For the foregoing reasons, after careful
review of the entire administrative record,
and according Aetna a deferential standard
of review, the Court concludes that
defendant’s decision to terminate plaintiff’s
long term disability benefits beyond June
30, 2012 failed to address substantial
evidence in the record, and was thus
arbitrary and capricious as a matter of law.
Plaintiff’s claim is, therefore, remanded to
Aetna for reconsideration, including the
updated November 29, 2012 APS report
from Dr. Sirois, his supporting office visit
notes, the Pasternak vocational expert
report, and plaintiff’s affidavit.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 25, 2015
Central Islip, NY
***
Plaintiff is represented by Ronald L.
Epstein, Grey and Grey LLP, 360 Main St.,
Farmingdale, NY 11735. Defendant is
represented by Michael Bernstein, Sedgwick
LLP, 225 Liberty St., 28th Floor, New York,
NY 10281.

Finally, “[t]he court recognizes that
Plaintiff has been without benefits for an
extended period of time. Therefore, the
Court will retain jurisdiction over this case
pending the remand and require that the
administrator act expeditiously to resolve
Plaintiff’s claim.”
Shore, 2007 WL
3047113, at *15 (citing Neely v. Pension
18