Aitken v. Aetna Life Insurance Company
Filing
50
MEMORANDUM AND OPINION re: 33 MOTION for Summary Judgment , filed by Aetna Life Insurance Company, 38 MOTION for Summary Judgment , filed by David Robert Aitken. Plaintiff David Robert Aitken brings this action agains t Aetna Life Insurance Company, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., claiming that Aetna erroneously denied him long-term disability benefits. (Cmplt. (Dkt. No. 1)) The parties have cross-moved for summary judgment. (Dkt. Nos. 33, 38) The parties' cross-motions for summary judgment are denied. The Clerk of Court is directed to terminate the motions. (Dkt. Nos. 33, 38) The parties will file a joint letter by October 7, 2018, indicating how they wish to proceed. SO ORDERED. (Signed by Judge Paul G. Gardephe on 9/25/2018) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:
I~
9/ 2-5--)
DAVID ROBERT AITKEN,
Plaintiff,
MEMORANDUM
OPINION & ORDER
- against AETNA LIFE INSURANCE COMPANY,
16 Civ. 4606 (PGG)
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff David Robert Aitken brings this action against Aetna Life Insurance
Company, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. § 1001 et seq., claiming that Aetna erroneously denied him long-term disability benefits.
(Cmplt. (Dkt. No. 1)) The parties have cross-moved for summary judgment. (Dkt. Nos. 33, 38)
For the reasons stated below, the parties' cross-motions will be denied.
BACKGROUND 1
I.
PLAINTIFF'S EMPLOYMENT
From 2001 through 2005, and again from 2009 until November 2014-when
Plaintiff allegedly became disabled - Plaintiff was employed as a Group Chief Financial Officer
To the extent that this Court relies on facts drawn from a party's Local Rule 56.1 statement, it
has done so because the opposing party has either not disputed those facts or has not done so
with citations to admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140
(2d Cir. 2003) ("If the opposing party ... fails to controvert a fact so set forth in the moving
party's Rule 56.1 statement, that fact will be deemed admitted.") (citations omitted). Where the
non-moving party disputes the moving party's characterization of cited evidence, and has
presented an evidentiary basis for doing so, the Court relies on the non-moving party's
characterization of the evidence. See Cifra v. Gen. Elec. Co., 252 F.3d 205,216 (2d Cir. 2001)
(court must draw all rational factual inferences in non-movant's favor in deciding summary
judgment motion.). UnlMs otherwige indicated, the facts cited by the Court are undisputed.
1
("CFO") by Four Seasons Solar Products LLC ("Four Seasons"), at the company's offices in
Holbrook, New York. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 45) ,r 1; Administrative
Record ("AR") at 969, 978) 2 Four Seasons is an international company that sells sunrooms (AR
at 714), and is a subsidiary ofLatium USA Holdings. (Def. R. to Pltf. R. 56.1 Stmt. (Dkt. No.
45),r 1)
As Group CFO, Plaintiff earned $180,000 annually, and was responsible for, inter
alia, day-to-day management of a $100 million budget for Four Seasons' Home Improvement
Group; meeting strict reporting deadlines; supervising more than five direct reports and a
department of more than twenty people; and attending multiple board meetings each month. (Id.
,r,r 2, 4; AR at 714)
Plaintiffs work as Group CFO involved a significant amount of travel,
including trips to vendors, customers, and potential acquisition targets approximately two weeks
each month; visiting a corporately owned retail location each month; travel to a Canadian
subsidiary once a quarter; and travel to Four Seasons' parent company in the United Kingdom
twice a year. (AR at 714) Plaintiff worked- on average- sixty hours a week. (Id. at 672) His
job was "inherently stressful," and "at times [the stress] would be extreme." (Id. at 715)
II.
PLAINTIFF'S HISTORY OF CARDIAC DISEASE
Plaintiff has a history of coronary artery disease. (Id. at 662-63, 715) Plaintiffs
cardiac symptoms began on May 29, 2012, when - at the age of 53 - he awoke in the middle of
the night with discomfort and pressure in his chest. (Id. at 662, 715) Plaintiffs primary care
doctor referred him to the Emergency Room, where he was treated by Dr. Cornell Cohen- a
cardiologist. (Id. at 715, 830) Tests revealed that Plaintiff had a blockage of 80% or more in
four of his arteries, and on June 1, 2012, Plaintiff underwent emergency triple bypass surgery.
2 The Administrative Record was filed urtd~r M9.l.
2
(Id. at 663, 715) Dr. Sandeep Gupta- a cardiothoracic surgeon- performed the bypass surgery.
ilih at 663, 715, 897)
After Plaintiffs triple bypass surgery, his health appeared to improve, and he
returned to work on a part-time basis in August 2012. (gl at 715) On August 28, 2012,
however, nurses noticed abnormalities on Plaintiffs heart monitor during cardiac rehabilitation,
and an angiogram revealed that all of Plaintiffs cardiac grafts had either failed or were in the
process of failing. (Id.; see also id. at 612, 663) Accordingly, Plaintiff underwent a second
emergency bypass surgical procedure on August 28, 2012. (gl at 663, 915)
Plaintiff returned to work on a part-time basis six weeks after his second bypass
operation, and he returned to full time work as Group CFO by the end of December 2013. (Ml at
716) Plaintiff was still experiencing symptoms of reduced endurance and stamina; fatigue;
headaches; and more frequent bouts of chest pain, however. (Id. at 716-1 7) After Plaintiff
experienced an episode of severe angina, he underwent a third angiogram on February 10, 2014,
which revealed a blockage in the left anterior descending artery. (Id. at 717) Doctors inserted a
drug-eluting stent at the site of the blockage. (Ml at 663, 717)
Plaintiff returned to work as Group CFO after a brief recovery period, but stress
from his job, frequent travel, and long work hours caused a progressive worsening of his
symptoms. (Id. at 717-18) According to Plaintiff, he experienced worsening fatigue, a lack of
endurance, chest pain, nausea, sweating, and atrial fibrillation, all of which began interfering
with his ability to perform his duties as Group CFO. (Id. at 717-18)
III.
PLAINTIFF'S TRANSITION TO A NEW POSITION
Plaintiff states that"[ a]s a result of [his] inability to handle the demanding and
stressful nature of [his] occupation, [he] gave up the role of Group CFO for Four Seasons [] in
3
Nov[ember] 2014 and began working in an interim role as Director of Acquisitions, also for Four
Seasons[]." (lsL at 719) Plaintiffs last day as Group CFO was November 7, 2014, and he
worked as Director of Acquisitions from then through May 2015. (Def. Resp. to Pltf. R. 56.1
Stmt. (Dkt. No. 45) ~~ 16, 20) Plaintiffs position as Director of Acquisitions "was not
stressful," and did not involve any managerial duties, significant travel obligations, or deadlines.
(AR at 719)
On the day that Plaintiff became Director of Acquisitions, his salary was reduced
to $100,000 per year. (Def. Resp. to Pltf. R. 56.1 Strnt. (Dkt. No. 45) ~ 18) On November 24,
2014, Plaintiffs attorney informed Aetna that, as ofNovember 3, 2014, Plaintiff was "still at
work but with restriction[s] and [a] reduced schedule." (AR at 403) Aetna subsequently learned
from Plaintiffs employer that Plaintiffs "new job as Director of Acquisitions [was] on a full
time basis at the beginning of November 2014," and that Plaintiff "was available for support to
[the] new CFO as needed but no longer performing any of the CFO job duties." (Id. at 398)
Plaintiffs en;iployer also reported that Plaintiffs "salary was reduced to $60,000 as of [the] end
of March 2015," and that, as of April 30, 2015, Plaintiff was "working less than 40 hours per
week[] as Director of Acquisitions." (Id.)
Plaintiff moved to Virginia in June 2015, where he now works as an accountant
for an independently owned and operated Four Seasons franchise. (Id. at 720)
IV.
PLAINTIFF'S DISABILITY BENEFIT PLAN
As an employee of Four Seasons, Plaintiff had long-term disability ("LTD")
insurance coverage under the Boston Insurance Employee Benefit Trust Long Term Disability
Plan issued for Four Seasons' corporate parent, Latium USA Holdings (the "Plan"). (Def. Resp.
to Pltf. R. 56.1 Stmt. (Dkt. No. 45) ~ 5) Benefits under the Plan are provided by Aetna, pursuant
4
to its Group Life and Accident and Health Insurance Policy No. GP-617383-GI (the "Policy").
(Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 43)
~
2)
For purposes of Plaintiffs disability claim, the Plan consists of the Policy, a
Certificate-Booklet, and a Schedule of Benefits. (Id.
~
7) The Plan grants Aetna discretion to
determine an employee's entitlement to benefits:
Claim Determinations; ERISA Claim Fiduciary.... [Aetna] [is] a fiduciary with
complete authority to review all denied claims for benefits under this Policy ....
In exercising such fiduciary responsibility, [Aetna] shall have discretionary
authority to determine whether and to what extent eligible employee and
beneficiaries are entitled to benefits and to construe any disputed or doubtful
terms under this Policy, the Certificate or any other document incorporated
herein, [Aetna] shall be deemed to have properly exercised such authority unless
[Aetna] abuse[s] [its] discretion by acting arbitrarily and capriciously.
(Id.~ 8)
The Plan's "Test of Disability" provides in relevant part: "You meet the test of
disability on any day that: You cannot perform the material duties of your own occupation
solely because of an illness, [or] injury ... ; and [y]our earnings are 80% or less of your adjusted
predisability earnings." (AR at 1025 (emphasis removed)) The Plan defines "Own Occupation"
as
The occupation that you are routinely performing when your period of disability
begins. Your occupation will be viewed as it is normally performed in the
national economy instead of how it is performed: For your specific employer; or
[a]t your location or work site; and [w]ithout regard to your specific reporting
relationship.
(AR at 1041) The Plan defines "Material Duties" as "[ d]uties that: Are normally needed for the
performance of your own occupation; and [c]annot be reasonably left out or changed. However,
to be at work more than 40 hours per week is not a material duty." (Id. (emphasis removed))
5
V.
PLAINTIFF'S DISABILITY CLAIM
Plaintiff submitted a claim for LTD benefits to Aetna on January 21, 2015,
asserting that he became disabled on November 3, 2014. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt.
No. 43) ,r 13) In considering Plaintiffs claim, Aetna reviewed a variety of contemporaneous
medical records, including September 11, 2014 and October 1, 2014 progress notes from
Plaintiffs cardiologist, Dr. Cohen. In the September 11, 2014 progress note, Dr. Cohen reported
that Plaintiffs symptoms included chest pain, palpitations, and shortness of breath, and that Dr.
Cohen was "concerned [about Plaintiffs] symptoms," because "[t]he recurrence of symptoms in
the face of now 3 revascularizations [wa]s very alarming." (AR 835-37) Dr. Cohen also
reported that Plaintiffs "breakthrough symptoms" were related to an "inability to tolerate an
increase[ d] stress load." (Id. at 83 7)
In the October 1, 2014 progress note, Dr. Cohen reported that "[Plaintiff]
continues to have episodes of atrial fibrillation. He notes one episode lasted the better part of the
entire night. He has been unable to sleep as he is symptomatic. . . . [These] [s]ymptoms include
chest pain, hypertension, palpitations[,] and shortness of breath." (AR at 830-31) Dr. Cohen
also reported that his "hope [wa]s to try to control the patient's atrial fibrillation. [Plaintiff] has
been adequately revascularized and has shown so on recent nuclear stress test studies." @ at
833) Dr. Cohen also stated that he had "asked the patient [to] follow a low-salt, low-fat, and
low-cholesterol diet," and "encouraged him to exercise regularly." @) The September 11,
2014 and October 1, 2014 progress notes do not reflect a recommendation from Dr. Cohen that
Plaintiff change his job. @at 830-37)
Aetna also reviewed an October 13, 2014 record prepared by Michelle Craddock,
a nurse practitioner who worked for Plaintiffs internist. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt.
6
No. 43) 124) Nurse Craddock reported that Plaintiff should "continue meds[;] follow up
cardiology[; and] follow up [in] 3-4 months." (14,_)
Aetna also reviewed a report prepared by Plaintiffs cardiothoracic surgeon, Dr.
Gupta, following a November 13, 2014 office visit. Dr. Gupta's record shows that Plaintiff said
that he had "cut back work hours to 4 days a week to get in better physical shape." Dr. Gupta
"agree[d] with [Plaintiffs] reduced work hours and recommended getting [a] trainer and
nutritionist." (Id. 125; AR at 897) As noted above, however, Plaintiff was working full time in
November 2014 (AR at 398; see also Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 43) 130
(admitting that Plaintiff was working full time into December 2014), albeit less than the sixty
hours per week he had been working as CFO. (See AR at 612)
Aetna also reviewed an Attending Physician's Statement from Dr. Gupta, dated
December 23, 2014, which diagnosed Plaintiff with Coronary Artery Disease (id. at 984), and
stated that Plaintiff was able to perform "light work activity[,] [e]xerting up to 20 pounds of
force occasionally and/or up to 10 pounds of force frequently."
ilih at 985)
Dr. Gupta also
wrote that Plaintiff could "work 4 days per week to build up patient's endurance, low stress job,
little travel." (Id.) Plaintiff was working full time as of December 2014, however. (Pltf. Resp.
to Def. R. 56.1 Stmt. (Dkt. No. 43) 130)
Dr. Cohen submitted an Attending Physician's Statement to Aetna, dated January
23, 2015, in which he diagnosed Plaintiff with Paroxysmal Atrial Fibrillation and Coronary
Artery Disease (AR at 988) Dr. Cohen agreed that Plaintiff could perform "light work activity"
(Id. at 989), and listed Plaintiffs restrictions/limitations as "[n]o heavy, strenuous activity, [n]o
lifting heavy objects> 20 lbs, no pushing> pound[s]. No reaching overhead. No undue stress.
7
Limited travel." (Id.) Dr. Cohen also opined that "undue stress has affected [Plaintiffs] medical
condition."
ilit)
Dr. Gupta and Dr. Cohen also completed Capabilities and Limitations Worksheets
on December 23, 2014 and January 22, 2015, respectively. (Pltf. Resp. to Def. R. 56.1 Stmt.
(Dkt. No. 43) ,i,i 32-33) Dr. Gupta's worksheet reports, inter alia, that Plaintiff could engage in
every listed vocational activity (including climbing, lifting, pulling, pushing, carrying, bending,
twisting, sitting, standing and walking) "frequently," which means 34% to 66% of an eight-hour
day. (Id. ,i 32) Dr. Gupta also reported that Plaintiff could operate a motor vehicle, hazardous
machinery, and power tools, and that Plaintiff had no limitations for exposure to heat, cold,
dampness, noise, dust, fumes, chemicals or radiation. (Id.) He furth~r reported that Plaintiff was
able to work eight hours a day.
(hl.J
Dr. Cohen's worksheet reports that Plaintiff could engage in all of the listed
vocational activities "continuously," which means 67% to 100% of the day. (Id. ,i 33) Dr.
Cohen reported that Plaintiff could work eight hours per day, and that Plaintiff could operate a
motor vehicle, hazardous machinery and power tools. (Id.) Unlike Dr. Gupta, however, Dr.
Cohen stated that Plaintiff had exposure limitations to heat, cold, dampness, noise, dust, fumes,
chemicals, and radiation.
ilit)
On February 2, 2015, an Aetna representative spoke by telephone with Plaintiff,
who stated that his only disabling restriction/ limitation was "no heavy lifting." (AR at 398)
Plaintiff also said that, "[f]rom February 2014 through November [he was] under a lot of
pressure and [had a] heavy workload[,] and it was having [an] impact on his health. He
developed atrial fib, chest pains, fatigue, sweats symptoms [sic] at work."
8
ilit) After this
February 2, 2015 call, Plaintiffs attorney told Aetna that it could not speak directly to Plaintiff,
and that "[a]ll communication and requests for information need to go through the attorney's
Between March and April 2015, Eleanor Newton- a registered nurse and clinical
consultant for Aetna - conducted multiple reviews of the medical records Aetna had received.
(Id. ,i 36) On March 20, 2015, Nurse Newton noted that the Capacities and Limitations
Worksheets completed by Dr. Gupta and Dr. Cohen indicated that "[ c]laimant has full time work
capacity."
ilil. ,i 37) She also noted that "it appears that [Plaintiff] elected to reduce work hours.
(Id.) On April 17, 2015, after reviewing additional medical records, Nurse Newton concluded
that "[t]here is no clinical evidence of change in functionality since [the Attending Physician
Statement] from C. Cohen, MD (cardio) dated 1/23/15[;] ... no heavy or strenuous activity, no
lifting heavy objects >20 lbs., no pushing> 10 pounds, no reaching overhead, no undue stress,
limited travel. 8hours/day, 5days/week; undue stress has affected his medical condition....
Claimant has work capacity." (Id. ,i 38)
On April 27, 2015, Aetna asked Janet Clifton - a vocational rehabilitation
consultant - whether the restrictions and limitations as reported by Nurse Newton would prevent
Plaintiff from "perform[ing] the material duties of his own occupation as Director of
Acquisitions." (AR at 486) Clifton opined that the closest matching occupation in the U.S.
Department of Labor's Dictionary of Occupational Titles is Sales Manager, a sedentary
occupation. (Id. at 487) Clifton also reported that, according to the Department of Labor's
Occupational Outlook Handbook, "[s]ales managers often are required to travel," and to "work
full time" with "long hours." ilil,_ at 488) Clifton further reported that she "would not be able to
comment on the stress level, per se, as this information would be more job-specific or employerspecific and can be subjective and not well-defined." (Id. at 487)
9
During its initial claim review, Aetna also received a January 6, 2015 letter from
the chief executive officer of Four Seasons, Shaun Kennedy. Kennedy wrote:
[Since Plaintiff] had a stent inserted [in February 2014] ... , I have noticed a slow
but noticeable decline in his work abilities .... When he is under significant
stress, something that happens frequently in this role, his symptoms noticeably
increase. For example, he fatigues quickly; often becomes nauseous and even
physically ill while at the office; and he occasionally loses color in his face and
turns white . . . . There were other times when [Plaintiff] had chest pains and
angina that were so severe he was physically incapable of driving home. Having
seen the consequences first hand I've been unable to ask him to travel to meetings
and perform tasks that I previously would not have hesitated to allocate to him.
(Id. at 978)
In a May 12, 2015 letter, Aetna informed Plaintiffs lawyer that Plaintiffs claim
for LTD benefits had been denied, stating: "Based on the results of our review, your client is
able to perform the material duties of his own occupation of Chief Financial Officer within the
restrictions and limitations provided." (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 43) ~ 41)
VI.
PLAINTIFF'S APPEAL
Plaintiff filed an administrative appeal on November 5, 2015. (Id.~ 42) In his
appeal, Plaintiff agreed that his own occupation was sedentary, but asserted that it required
"[d]ealing with very significant levels of stress and pressure," significant travel, and working
long hours. (Id.~~ 43-44) In support of his appeal, Plaintiff submitted an affidavit, letters from
Dr. Gupta and Dr. Cohen, a vocational evaluation prepared by Dr. Charles Kincaid, Ph.D., and
statements from various family members, friends, and co-workers. (See AR at 662-729)
A.
Plaintiff's Submission
In his affidavit, Plaintiff claims that "gave up the role of Group CFO" in
November 2014, due to his "inability to handle the demanding and stressful nature of [his]
10
occupation." (AR at 719) Plaintiffs affidavit does not indicate whether his doctors ever
recommended that he switch jobs. (See id. at 713-20)
Dr. Cohen's November 3, 2015 letter states, however, that he "ask[ed] [Plaintiff]
to seek reassignment or different employment to prevent further cardiovascular illness and
disability":
[Plaintiffs] endurance has diminished. He is no longer able to continue his
continue his extensive travel schedule related to work. I have advised him against
frequent airplane travel, a heavy work schedule, and working [in] a high pressure
environment.
For his long-term cardiovascular health, it is essential that he decrease his stress
levels, workload, and travel schedule.
(Id. at 662)
Dr. Gupta's October 7, 2015 letter states: "I have seen [Plaintiff] on October 6,
2015. Due to his recent cardiac health I advised him not to do extensive air travel or maintain a
high stress job." (Id. at 663)
Dr. Kincaid's October 20, 2015 vocational evaluation addresses Plaintiffs alleged
needs to avoid stress and extensive travel. With respect to stress, Dr. Kincaid states that the
"high stress levels and duties of [Plaintiff]' s former job position are representative of CFO
positions in the U.S. labor market." (Id. at 683) Dr. Kincaid notes that, according to the
American Institute of Stress, "heart attacks and sudden deaths befall individuals much more
frequently after periods of acute stress, ... and [] the prevalence of coronary disease increases
for people with long-term stress." (Id. at 682) Dr. Kincaid further reports that, according to the
University of Rochester Medical Center,
[t]he hormone cortisol is released in response to stress. Studies suggest that the
high levels of cortisol from long-term stress can increase blood cholesterol,
triglycerides, and blood pressure. These are common risk factors for heart
11
disease. Stress can also cause changes that promote the buildup of plaque
deposits in the arteries.
(Id. at 683) Dr. Kincaid concludes that Plaintiffs physicians had "dispensed recommendations
that coincide with the research above" by "medically restrict[ing] [him] from undue stress and
physical activity." (Id.)
Dr. Kincaid further states that
traveling is another activity that is contradindicated for [Plaintiff]. According to
O*Net, which is one of the most comprehensive informational bases of
occupational duties, the following is listed for Chief Executives: 'Deliver
speeches, write articles, or present information at meetings or conventions to
promote services, exchange ideas, or accomplish objectives.' Meetings and
conventions often require traveling domestically and internationally across time
zones, and [Plaintiff] confirmed that he was required to travel frequently for his
work as a Group Chief Financial Officer. Due to these issues, [Plaintiff]'s ability
to return to his past work is highly unlikely.
(Id. at 684)
Dr. Kincaid concludes, based on the "physical functional limitations derived from
the medical records reviewed for []his evaluation, [that] it is within a reasonable degree of
vocational certainty that [Plaintiff] is unemployable in his past work as a Group Chief Financial
Officer or similar stress-producing occupations due to his medical restrictions." (Id. at 692) In
reaching this conclusion, Dr. Kincaid opines that the ''vocational-medical analysis of [Plaintiff]
prepared by Aetna lacks validity," because, inter alia, Aetna should have conducted a vocational
review based on the job responsibilities associated with the occupation of Controller, which Dr.
Kincaid determined was the closest matching occupation for Plaintiffs occupation as Group
CFO. (See id. at 687-90) According to the Dictionary of Occupational Titles, the duties of a
Controller are as follows:
Directs financial activities of organization or subdivision of organization:
Prepares, using computer or calculator, or directs participation of, reports which
summarize and forecast company business activity and financial position in areas
12
of income, expenses, and earning, based on past, present, and expected
operations. Directs determination of depreciation rates to apply to capital assets.
Establishes, or recommends to management, major economic objectives and
policies for company or subdivision. May manage accounting department. May
direct preparation of budgets. May prepare reports required by regulatory
agencies. May advise management on desirable operational adjustments due to
tax code revisions. May arrange for audits of company accounts. May advise
management about property and liability insurance coverage needed.
(Id. at 687)
B.
Dr. Veneziano's First Report
In reviewing Plaintiffs appeal, Aetna asked Marc Veneziano, M.D., who is
board-certified in cardiovascular disease, to review the medical evidence. (Pltf. Resp. to Def. R.
56.1 Stmt. (Dkt. No. 43) ,i 46) Prior to drafting his report, Dr. Veneziano called Dr. Cohen and
Dr. Gupta several times. (@ Dr. Cohen did not return these calls, however, and Dr. Gupta's
office told Dr. Veneziano that Dr. Gupta "[d]oes not wish to comment further on this case." (Id.)
In his report, Dr. Veneziano opines on Plaintiffs alleged need to avoid stress and
extensive travel. (Id. ,i,i 48-50) As to travel, Dr. Veneziano states: "I simply see no basis for
stating [that] a man with cardiac disease which has been stable, based on stress testing and
angiography, should not travel. ... Recommendations like 'avoid "excessive" air travel' are too
vague and, without a specific supporting reason and evidence, appear to be without foundation.
It seems incongruous that [Plaintiff] can perform [well] on a treadmill, golf, drive a car and even
operate heavy machinery, but cannot sit in an airplane or walk through an airport." (AR at 632)
As to stress, Dr. Veneziano states that
[b]oth Dr. Cohen and Dr. Gupta express a belief that Mr. Aitken'sjob hinders his
symptomatic improvement and increases his risk for future events. While
removal of stress and devoting more time to a healthy life-style may theoretically
help Mr. Aitken's cardiovascular health, based on his doctors' notes where Mr.
Aitken consistently acknowledges he is not exercising as instructed nor losing
weight as instructed, Mr. Aitken does not seem to be actually making any
progress in that area....
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@) Dr. Veneziano notes that Aitken had gained fifty pounds since his second bypass surgery,
and he opines that the additional weight is "a large burden on his heart that is likely contributing
to his symptoms .... " (Id. at 634) Dr. Veneziano concludes that Plaintiffs "prognosis for
improvement in his functional capacity is good, provided he actively participate[s] in his own
care. The medical record demonstrates that [Plaintiff] has not followed his doctors' instructions
regarding weight loss and exercise." (lg_J
C.
Dr. Cohen's Response to Dr. Veneziano's Report
Aetna sent a copy of Dr. Veneziano's report to Dr. Cohen and stated, "if you
disagree with the reviewer's conclusions, please respond by indicating which areas of the
attached report you agree with, which areas you disagree with, and any clinical evidence or
observations in support of your opinion that have not already been provided." (Pltf. Resp. to
Def. R. 56.1 Stmt. (Dkt. No. 43) ~ 51)
In a February 3, 2016 letter, Dr. Cohen states that Plaintiffs symptoms had
improved since November 2014, when he "changed jobs ... to a less demanding role," and that
Plaintiff "appears to have benefitted from transitioning to a role that involves considerabl[y] less
stress." (AR at 612) Dr. Cohen acknowledges that Aitken had gained a substantial amount of
weight since his second bypass operation, and agrees that Aitken "would undoubtedly benefit
from losing some weight." @) Dr. Cohen notes that the weight gain is only 30 pounds,
however, and that Plaintiffs medications have "significant[ly] slowed his metabolism[,] making
it difficult for him to lose weight." (Id.) Dr. Cohen further opines that the added weight is not
"contributing to [Plaintiffs] physical limitations." (Id.) Dr. Cohen also states that Plaintiff
reported that he had "made significant changes to his diet and has undertaken light exercise that
includes regular walking, golf and gym activities." (Id.) Dr. Cohen also notes that, because the
14
failure of Aitken's grafts was discovered while he was undergoing cardiac rehabilitation, Aitken
has developed serious reservations about "more vigorous exercising." (l.QJ
Dr. Cohen reiterates his previous findings that Aitken "can physically sit at a desk
and work for 8 hours a day," but concludes that "he cannot work as a Group CFO, which
involve[s] a heavy workload and high stress/ pressure environment." @) The basis for Dr.
Cohen's conclusion is that, "[w]hen [Plaintiff] was working as Group CFO, his symptoms were
significantly worse, which [Dr. Cohen] attribute[s] largely to the stress of the job." (Id. at 613)
Dr. Cohen further states that he restricts Aitken from "extensive or frequent
airplane travel" because he "reported his worst episodes of atrial fibrillation, exhaustion,
headaches and nausea after he undertook extensive airplane travel. His symptoms were made
worse by traveling between multiple time zones, and then working after such flights without a
sufficient recovery/rest period." (Id.) Based on this experience, Dr. Cohen concludes that
Aitken "cannot be required [to] travel and then return to work right away. He needs some
recovery time -which, according to [Plaintiff], was not possible while working as Group CFO."
ilil)
D.
Dr. Veneziano's Second Report
Dr. Veneziano reviewed Dr. Cohen's response and concluded that there was
"nothing within [it] that supports that Mr. Aitken is unable to travel, nor that he required any
additional restrictions beyond what was put forward in my review dated 1/18/2016." (Pltf. Resp.
to Def. R. 56.1 Stmt. (Dkt. No. 43) ,r 58) Dr. Veneziano added: "Dr. Cohen points out that Mr.
Aitken underwent cardiac catheterization on 3/16/2015 as a result of angina; this occurred nearly
4 months AFTER Mr. Aitken had already left his job as CFO. This suggests that Mr. Aitken's
symptoms were not, in fact, job related. It is notable that Mr. Aitken had not undergone such
15
testing prior to leaving his job, when Dr. Cohen states Mr. Aitken's symptoms were 'more
severe." (Id. (emphasis in original))
Dr. Veneziano' s second report also states that
[w]hile Dr. Cohen's description of Mr. Aitken's anxiety over exercising is
certainly plausible, it does not negate the fact that weight loss and increased
exercise would be expected to improve Mr. Aitken's functionality and symptoms
at least as much as "avoiding stress." The increased cardiac work needed to carry
around 30 (or 50) extra pounds is not insignificant and cannot be discounted as
failing to contribute to Mr. Aitken's symptoms.
ilih 'i[ 59)
Dr. Veneziano also opines that, "[g]iven Dr. Cohen's statement that [Plaintiff] has
been 'deeply affected' by the possibility of an adverse cardiac event with physical stress, ... the
question must be raised whether [Plaintiff]'s symptoms related to 'stress' and 'travel' are more
anxiety related than ischemia related." (Id. 'i[ 60)
As to Plaintiffs "having some of his most severe symptoms of fatigue while
traveling and having little time to recuperate," Dr. Veneziano states that
this is certainly possible but still amounts to a purely subjective complaint. There
is no evidence within the medical record that Mr. Aitken suffered any actual harm
from travelling or that he was, in fact, physically incapable of doing so.
Additionally, medication adjustments, changes in sleep schedule and even timing
of flights and meetings could conceivably help Mr. Aitken tolerate travel better.
(Id. -i[ 61)
With respect to restrictions/limitations that are medically supported, Dr.
Veneziano agrees with Dr. Cohen that Plaintiff could work a full eight-hour day, drive, and
perform other typical vocational tasks. (Id. -i[ 62) As in his initial report, however, Dr.
Veneziano finds that Dr. Cohen's restriction on air travel is "without foundation." (kl -ii 63) He
repeats that "[i]t seems incongruous that Mr. Aitken can perform [well] on a treadmill, golf,
drive a car and even [according to Dr. Cohen] operate heavy machinery, but cannot sit in an
airplane or walk through an airport. There is no evidence in Dr. Cohen's reply that contradicts
16
this .... " (Id.~ 63) Finally, Dr. Veneziano reiterates his prior determination that Plaintiffs
failure to follow his doctors' instructions and recommendations plays a role in his functional
capacity. (Id. ,i 64)
E.
Aetna's Determination
In a February 11, 2016 letter, Aetna denied Plaintiff's appeal. (Id. ,i 65) After
summarizing the medical evidence and Dr. Veneziano's views, Aetna concludes that, "[a]lthough
Mr. Aitken has a history of [coronary artery disease,] there is a lack of clinical findings ... to
support his inability to work at his own occupation as a Group CFO [or] as a Director of
Acquisitions." (Id.~ 66) Aetna further concludes that "Mr. Aitken is capable of working eight
(8) hours per day, and [that] there is no documentation to support why Mr. Aitken[] is restricted
from traveling." (Id. ,i 67) Aetna comments that "[w]hile Dr. Cohen's description of Mr.
Aitken's anxiety over exercising is certainly plausible, it does not negate the fact that weight
loss, and increased exercise would be expected to improve Mr. Aitken' s functionality, and
symptoms at least as much as 'avoiding stress."' (Id.~ 68) Aetna also notes that there is no
evidence that Plaintiff was "treating for anxiety." @)
Aetna finds that "Mr. Aitken can perform at a sedentary physical demand level."
(Id. ,i 69) Aetna concludes that, given that both of Plaintiffs occupations (Group CFO and
Director of Acquisitions) "are considered sedentary in physical demand[,] ... [and] based on the
above restrictions and limitations, Mr. Aitken could perform both occupations." @
*
*
*
~
70)
*
The Complaint was filed on June 17, 2016, and alleges that Plaintiff is entitled to
LTD benefits under the Plan. (Cmplt. (Dkt. No. 1)) The parties have cross-moved for summary
judgment. (Dkt. Nos. 29, 35)
17
DISCUSSION
I.
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when the moving party shows that ''there is no
genuine dispute as to any material fact" and that that party is "entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment
purposes where the evidence is such that a reasonable jury could decide in the non-movant's
favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner,
480 F.3d 140, 145 (2d Cir. 2007)). "As to materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry
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