Bennett-Brady v. Aetna Life Insurance Company et al
Filing
28
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 21 Motion for Summary Judgment; DISMISSING Plaintiff's breach of contract claim; DENYING Plaintiff's 24 Motion for Summary Judgment; DIRECTING the Clerk of Cou rt is to SEAL the entirety (including sub-parts) of Docket Numbers 20 22, 24-1, and 26; REFERRING this case for alternative dispute resolution under Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District Court for the Western District of New York; DIRECTING the parties to confer and file a stipulation selecting a mediator by 2/15/2019; DIRECTING that the initial mediation session be held no later than 3/15/2019; DIRECTING that the mediator file a Mediation C ertification setting forth the progress of mediation within 10 days of each mediation session; DIRECTING that the mediation process be completed by 4/30/2019; DIRECTING that the parties timely comply with all relevant requirements of the ADR Plan; SCHEDULING a Status Conference for 5/15/2019 at 9:00 am to report on the status of this case if it is not resolved through mediation. Signed by William M. Skretny, United States District Judge on 2/7/2019. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHARON BENNETT-BRADY,
Plaintiff,
v.
DECISION AND ORDER
14-CV-635S
AETNA LIFE INSURANCE COMPANY,
QUEST DIAGNOSTICS’ LONG TERM DISABILITY
BENEFIT PLAN,
QUEST EMPLOYEES BENEFITS ADMINISTRATION
COMMITTEE,
QUEST DIAGNOSTICS INCORPORATED,
Defendants.
I. INTRODUCTION
In this action, Plaintiff Sharon Bennett-Brady alleges that Defendants violated the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.
by erroneously terminating her long-term disability benefits.
(Docket No. 1.)
Defendants have filed the Administrative Record (Docket No. 20), and the parties have
fully briefed their cross motions for summary judgment (Docket Nos. 21-27), which are
pending before this Court. For the reasons that follow, Defendants’ motion for summary
judgment is granted in part and denied in part, and Bennett-Brady’s motion for summary
judgment is denied.1
1 Within her motion for summary judgment, Bennett-Brady includes a blanket request to seal “the record
and the contents of this motion.” (Docket No. 24-1, ¶ 51.) Bennett-Brady did not file a motion to seal as
required by the Administrative Guidelines, nor has she taken any action to properly request sealing since
the filing of her motion. Nonetheless, because several submissions in the record detail Bennett-Brady’s
medical conditions and contain private medical communications, this Court will direct the Clerk of Court to
seal certain submissions. Should Bennett-Brady conclude that further sealing would be appropriate, she
must move separately for additional relief.
1
II. BACKGROUND
A. Facts2
1. Bennett-Brady’s Employment at Quest Diagnostics
Bennett-Brady began working as a dispatcher for Defendant Quest Diagnostics
Incorporated (“QDI”) in February 1990, when she was about 30 years old. (Defendants’
Statement of Undisputed Facts (“Defendants’ Statement”), Docket No. 22, ¶¶ 2, 8.3) As
a dispatcher, Bennett-Brady answered telephone calls, scheduled drivers to pick up and
deliver medical specimens, sent out supply orders, kept records, and monitored drivers’
daily logs and availability. (Id. at ¶ 9.) This was a sedentary position. (Id. at ¶ 10.)
While Bennett-Brady worked at QDI, it offered its eligible employees a “Managed
Disability Benefit” program that included (1) weekly short-term disability payments that
was self-funded by QDI and managed by Defendant Aetna Life Insurance Company
under an Administrative Services Only Agreement, and (2) a monthly long-term disability
2 Defendants filed the Administrative Record on October 22, 2015. (Docket No. 20.) The next day, they
filed their motion for summary judgment, complete with the Statement of Undisputed Facts required by Rule
56 (a)(1) of the Local Rules of Civil Procedure for the Western District of New York. (Docket Nos. 21-23.)
Bennett-Brady cross-moved for summary judgment but failed to include the required Statement of
Undisputed Facts, instead submitting a non-conforming attorney affidavit. (Docket Nos. 24, 24-1, 25.)
Defendants responded to Bennett-Brady’s attorney affidavit consistent with Local Rule 56 (a)(2) (see
Docket No. 26), but Bennett-Brady failed to respond to Defendants’ Statement of Undisputed Facts as
required. Consequently, to the extent not controverted by the Administrative Record, Bennett-Brady is
deemed to admit the facts contained in Defendants’ Statement of Undisputed Facts. See Local Rule 56
(a)(2) (providing that a party is deemed to admit material facts not properly controverted in an opposing
statement); Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992) (“When a party has moved for
summary judgment on the basis of asserted facts supported as required by Fed.R.Civ.P. 56 (e) and has, in
accordance with local court rules, served a concise statement of the material facts as to which it contends
there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted
by the nonmoving party.”); Cassidy v. Nicolo, No. 03-CV-6603, 2005 WL 3334523, at *2 (W.D.N.Y. Dec. 7,
2005) (facts asserted by the defendants deemed admitted where the plaintiff failed to file a response);
Samborski v. W. Valley Nuclear Svcs. Co., Inc., No. 99-CV-213, 2002 WL 1477610, at *1-3 (W.D.N.Y. June
25, 2002) (same).
3 Defendants’ Statement of Undisputed Facts contains corresponding citations to the Administrative
Record.
2
benefit that was underwritten by an Aetna long-term disability policy, with Aetna acting as
the claims administrator. (Id. at ¶ 14.) Both plans authorized Aetna to make benefit
determinations. (Id. at ¶ 15.) The long-term disability policy, which is governed by
ERISA, is called the Income Protection Disability Plan (“the Plan”). (Id. at ¶¶ 4, 16.) QDI
was the Plan’s sponsor and administrator. (Id. at ¶¶ 6, 17.) Bennett-Brady participated
in both plans.
2. The Plan
As it relates to certifying a period of disability, the Plan provides that “[a] period of
disability will be certified by Aetna if, and for only as long as, Aetna determines that [the
participant is] disabled as a direct result of a significant change in [his or her] physical or
mental condition occurring while [he or she is] covered under this Plan.” (Administrative
Record (“AR”), Docket No. 20, p. 26.) The participant must also be under the care of a
physician. (Id.)
To be disabled under the Plan, either of the following must apply:
•
In the first 30 months of a certified period of disability:
[The participant is] not able, solely because of disease
or injury, to perform the material duties of [his or her]
own occupation; except that if [the participant starts]
work at a reasonable occupation [he or she] will no
longer be deemed disabled.
•
After the first 30 months of a certified period of disability:
[The participant is] not able, solely because of disease
or injury, to work at any reasonable occupation.
(Id. at p. 26 (emphasis in original).) The Plan defines reasonable occupation as “any
gainful activity for which [the participant is], or may reasonably become, fitted by
3
education, training, or experience.” (Id. at p. 45.)
The Plan further provides that no benefits are payable for any period of disability
that is not certified because either (1) certification has not been received for that period,
or (2) certification for that period has been requested and denied.
(Id. at p. 26.)
Certification of a period of disability is denied if any one of the following apply: (1) Aetna
determines that the participant is not disabled; (2) the participant is not under the care of
a physician; (3) the participant refuses to have an independent medical exam, when
required; or (4) a requested independent medical exam report is not received by Aetna,
or fails to confirm the participant’s disability. (Id. at p. 26.)
Under the Plan, Aetna determines the start of a certified period of disability, and,
as relevant here, the certified period of disability ends on “[t]he date certification of the
period of disability by Aetna ends, and the period of disability is not recertified by Aetna,”
or “[t]he date [the participant] cease[s] to be disabled,” whichever occurs earliest. (Id. at
p. 29.)
3. Bennett-Brady’s Claim
Bennett-Brady worked at QDI until November 29, 2001, when she left its employ
due to stress and depression. (Defendants’ Statement, ¶¶ 11, 13.)
On June 13, 2002, Aetna notified Bennett-Brady that her “disability absence was
certified under the provisions of [the Plan] effective November 29, 2001” and that, as of
June 6, 2002, she was eligible to receive monthly disability benefits from Aetna. (Id. at
¶¶ 12, 25.) This was based on Aetna’s determination that Bennett-Brady could not
perform the material duties of her position as a dispatcher. (Id. at ¶ 26.) She was further
4
advised that Aetna would periodically reevaluate her eligibility and would request updated
medical information from her physician or an independent physician. (Id.) BennettBrady subsequently had back surgery in 2002 and hip replacement surgeries in 2003 and
2004. (Id. at ¶ 28.)
On April 1, 2004, the test for Bennett-Brady’s continued receipt of disability
payments changed. (Id. at ¶ 29.) Under the Plan, Bennett-Brady now had to be unable
to work at any reasonable occupation, not just as a dispatcher. (Id.; AR, p. 26.) Aetna
determined that Bennett-Brady met this standard based on her psychological impairments
and therefore approved her receipt of long-term disability benefits. 4
(Defendants’
Statement, ¶ 29.) Bennett-Brady thereafter continued to receive long-term disability
benefits for about nine years. (Id. at ¶ 99.)
Then, by letter dated January 4, 2013, Aetna informed Bennett-Brady that it would
be terminating her long-term disability benefits, effective January 4, 2013, because she
no longer met the definition of disability under the Plan. (AR, pp. 1226-1228.) Aetna
explained that since June 1, 2010, there was insufficient support in Bennett-Brady’s
medical records to conclude that her psychological or physical conditions continued to
render her disabled under the Plan. (Id. at p. 1227.)
As it related to Bennett-Brady’s psychological condition—Major Depressive
Disorder and Stress—Aetna explained that its contact with Bennett-Brady’s treating
psychiatrist, Dr. Wendy Weinstein, and its review of relevant medical records caused it to
conclude that Bennett-Brady’s psychological condition no longer rendered her unable to
4 Bennett-Brady was also receiving Social Security Disability Income benefits and had been since
December 1, 2002. (Defendants’ Statement, ¶ 30.)
5
perform the duties of any reasonable occupation, and therefore, Bennett-Brady was no
longer disabled under the Plan. (Id. at pp. 1226-1227; Defendants’ Statement, ¶¶ 3287, 91, 94, 95.) In so concluding, Aetna recognized that its determination stood in
contrast to Dr. Weinstein’s opinion that Bennett-Brady’s severe depression continued to
render her disabled. (AR, p. 1227.)
As it related to Bennett-Brady’s physical impairments—constant pain—Aetna
explained that it was unable to make a disability determination because Bennett-Brady’s
physician, Dr. Ellen Battista, failed to respond to Aetna’s multiple attempts to obtain
information. (Id.; Defendants’ Statement, ¶¶ 74, 88-90, 92-93, 96-98.)
Aetna advised Bennett-Brady that it would review additional medical information
from her providers should she wish to submit it, and it explained her administrative appeal
rights and her right to bring a civil action under ERISA. (AR, p. 1228.) In particular,
Aetna suggested that the following additional submissions would be helpful:
•
a detailed narrative report for the period 06/01/2010
through 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;
•
diagnostic studies conducted during the above period,
such as test results, X-rays, laboratory data, and clinical
findings;
•
any information specific to the condition(s) for which you
are claiming total disability that would help us evaluate
your disability status; and any other information or
documentation you think may help in reviewing your claim.
(Id.)
6
4. Bennett-Brady’s
Submission
Administrative Appeal
of
Additional
Information
and
On January 14, 2013—10 days after Aetna’s termination letter—Bennett-Brady
submitted a new Functional Capacity Evaluation completed by Rose Physical Therapy,
PLLC, and endorsed by Dr. Battista, which addressed only her physical condition.
(Defendants’ Statement, ¶¶ 106-117.)
In a letter dated January 18, 2013, Aetna advised Bennett-Brady that it had
reviewed the Functional Capacity Evaluation but found it insufficient to warrant reversal
of its decision to terminate benefits. (AR, p. 1230.) Aetna found that the supplemental
information failed to demonstrate a disabling physical impairment, principally because
there were no exam findings, no specific testing performed, and no validity testing or raw
data. (AR, p. 1230; Defendants’ Statement, ¶¶ 118-119.) Aetna advised Bennett-Brady
to perfect her claim by having her physician complete additional paperwork to be
submitted along with updated medical records, to include any diagnostic testing. (AR, p.
1230.)
Four days later, on January 22, 2013, Dr. Weinstein sent Aetna treatment notes
and a letter advising that Bennett-Brady would be appealing its decision to terminate her
benefits. (AR, p. 781.) Aetna responded to this letter on February 6, 2013, with a letter
to Bennett-Brady advising that she herself would have to request an appeal; her treating
physician could not do it for her. (Id. at p. 1238.)
Bennett-Brady
thereafter
submitted
her
appeal
request,
which
Aetna
acknowledged in a letter dated March 13, 2013. (Id. at p. 1244.) During the course of
the appeal, Bennett-Brady twice requested time to submit updated medical information,
7
which Aetna granted. (Defendants’ Statement, ¶¶ 128-131.) On April 23 and June 27,
2013, Aetna received additional medical records from Dr. Weinstein. (Id. at ¶¶ 131-138.)
Notably, Dr. Weinstein stated in an April 10, 2013 record that she told Bennett-Brady that
she was in too much distress to work and that this condition was permanent. (Id. at ¶
136.)
On June 28, 2013, Aetna advised Bennett-Brady that it would need additional time
to review her appeal because it was awaiting the results of two specialty-matched clinical
opinions.
(AR, p. 1256.)
Aetna engaged Mark Schroeder, M.D., to provide an
independent physician review of Bennett-Brady’s psychological condition and Stuart
Rubin, M.D., to provide the same service as it related to Bennett-Brady’s physical
condition.
(Defendants’ Statement, ¶¶ 140, 141.)
After their review, both Drs.
Schroeder and Rubin determined that there was insufficient support to find that BennettBrady was psychologically or physically disabled within the meaning of the Plan.5 (Id. at
¶¶ 142-153.)
On August 7, 2013, Aetna notified Bennett-Brady that it had completed its review
of her appeal and had upheld its initial determination to terminate long-term disability
benefits effective January 4, 2013.
(AR, p. 1268.)
Aetna provided a detailed
explanation of its determination and informed Bennett-Brady that its decision was final
and not subject to further review. (Id. at pp. 1268-1270.) It also once again advised
Bennett-Brady that she had the right to bring a civil suit under ERISA if she disagreed
with the final determination. (Id. at p. 1270.)
5 Dr. Weinstein was cooperative in assisting Dr. Schroeder with his review (see Defendants’ Statement, ¶
143), but Dr. Battista did not assist Dr. Rubin (see id. at ¶¶ 142, 144, 147, 150-153).
8
B. Procedural History
Bennett-Brady timely filed her civil suit under ERISA in this court on August 6,
2014. (Docket No. 1.) Defendants filed answers on January 9, 2015. (Docket Nos. 8,
9.)
This matter was then referred to the magistrate judge to conduct all pretrial
proceedings. (Docket No. 10.) Defendants thereafter filed the Administrative Record
on October 22, 2015 (Docket No. 20), and the parties filed their cross-motions for
summary judgment on October 23, 2015 (Docket Nos. 21, 24). Briefing on the parties’
motions concluded on November 23, 2015, at which time this Court reserved decision
without oral argument.
III. DISCUSSION
Bennett-Brady asserts two causes of action. First, she alleges that Defendants
violated ERISA by erroneously terminating her long-term disability benefits. Second, she
claims that Defendants’ termination of her benefits constitutes a breach of contract.
A. General Legal Principles
1. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56 (a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
9
drawn from the evidence must be "viewed in the light most favorable to the party opposing
the motion." Addickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,
26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import
of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d
Cir. 1991). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is
any evidence in the record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); it must
“offer some hard evidence showing that its version of the events is not wholly fanciful,”
D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be
evidence from which the jury could reasonably find for the nonmoving party. Anderson,
477 U.S. at 252.
In the end, the function of the court at the summary judgment stage is not “to weigh
the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial." Anderson, 477 U.S. at 249. “Assessments of credibility and
choices between conflicting versions of the events are matters for the jury, not for the
court on summary judgment.” Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
This same standard applies to cross motions for summary judgment.
10
See
Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001). “[W]hen both parties
move for summary judgment, asserting the absence of any genuine issues of material
fact, a court need not enter judgment for either party. Rather, each party’s motion must
be examined on its own merits, and in each case all reasonable inferences must be drawn
against the party whose motion is under consideration.” Id. (citing Heublein, Inc. v.
United States, 996 F.2d 1455, 1461 (2d Cir. 1993); Schwabenbauer v. Bd. of Educ., 667
F.2d 305, 314 (2d Cir. 1981)).
2. Standard of Review
“A denial of benefits challenged under § 1132 (a)(1)(B) is to be reviewed under a
de novo standard unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d
80 (1989); see Muller v. First Unum Life Ins. Co., 341 F.3d 119, 123-24 (2d Cir. 2003).
Here, Defendants stipulate6 that de novo review applies because they are unable
to locate the relevant policy documents that would indicate whether the more deferential
arbitrary and capricious standard of review would apply. Cf. McDonnell v. First Unum
Life Ins. Co., No. 10 CV 8140 (RPP), 2013 WL 3975941, at *7 (S.D.N.Y. Aug. 5, 2013)
(“The plan administrator bears the burden of proving that the deferential standard of
review applies.”) De novo review therefore applies.
6 See Docket No. 23, p. 17 (“Due to the fact that Plaintiff’s claim arose in 2001 and Aetna’s relationship
with QDI ended in 2005, defendants were unable to locate the policy of insurance governing the LTD
benefits payable by Aetna, which would set forth whether the arbitrary and capricious standard of review
applied in this action. Therefore, defendants stipulate that the Court is to review Aetna’s decision to
terminate Plaintiff’s claim for LTD benefits de novo.”).
11
De novo review “applies to all aspects of the denial of an ERISA claim, including
fact issues.” Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 245 (2d Cir.
1999). “In conducting a de novo review, the Court gives no deference to the insurer’s
interpretation of the plan documents, its analysis of the medical record, or its conclusion
regarding the merits of the plaintiff’s benefits claim.” McDonnell, 2013 WL 3975941, at
*12. Rather, the court “stands in the shoes of the original decisionmaker.” Dimaria v.
First Unum Life Ins. Co., No. 01 CV 11413, 2005 WL 743324, at *4 (S.D.N.Y. Mar. 31,
2005). It “interprets the terms of the benefits plan, determines the proper diagnostic
criteria, reviews the medical evidence, and reaches its own conclusion about whether the
plaintiff has shown, by a preponderance of the evidence, that she is entitled to benefits
under the plan.”
McDonnell, 2013 WL 3975941, at *12 (citations omitted).
In this
regard, the court is generally limited to the administrative record that was before the plan
administrator. See DeFelice v. Am. Int’l Life Assurance Co. of New York, 112 F.3d 61,
67 (2d Cir. 1997).
In conducting de novo review, however, the court must be “mindful of the Second
Circuit’s teaching that it is inappropriate for a court to grant summary judgment where the
resolution of an ERISA benefits dispute entails adopting one medical expert’s opinion
over another’s.” Tretola v. First Unum Life Ins. Co., No. 13 CIV. 231 PAE, 2015 WL
509288, at *23 (S.D.N.Y. Feb. 6, 2015) (citing Napoli v. First Unum Life Ins. Co., 78
F.App’x 787, 789 (2d Cir. 2003) (“Such a credibility determination is appropriate at trial,
but it exceeds the scope of a judge’s authority in considering a summary judgment
motion.”)).
Indeed, this Court has recognized that “[a]bsent any indication that [a
12
plaintiff’s] treating physicians’ opinions are unreliable as a matter of law, the differing
opinions of [a plaintiff’s] treating physicians and Defendants’ reviewing physicians present
a genuine dispute regarding the material fact of whether [the plaintiff] . . . is entitled to
continued disability benefits.” Baumer v. Ingram Long Term Disability Plan, 803 F. Supp.
2d 263, 268-69 (W.D.N.Y. 2011) (citing Napoli, 78 F.App’x at 789).
3. Preponderance of the Evidence
The governing standard of proof is preponderance of the evidence. “’To establish
a fact by a preponderance of the evidence means to prove that the fact is more likely than
not true.’” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (quoting 4 L. Sand et al.,
Modern Federal Jury Instructions ¶ 73.01, at 73-4 (1997)). If the evidence is evenly
balanced, the burden of proof is not satisfied. See Kosakow v. New Rochelle Radiology
Assocs., 274 F.3d 706, 731 (2d Cir. 2001) (“where the burden of proof is a preponderance
of the evidence, the party with the burden of proof would lose in the event that the
evidence is evenly balanced”).
B. Bennett-Brady’s ERISA Claim
The parties cross move for summary judgment in their favor as to whether BennettBrady remained disabled under the Plan on January 4, 2013, and thereafter—due to
either a psychological or physical impairment—such that Aetna should have continued to
pay long-term disability benefits.
The Administrative Record contains evidence
submitted by both sides in support of their diametrically opposed positions, including
conflicting medical opinions concerning the extent of Bennett-Brady’s medical conditions.
These differing opinions, none of which is unreliable as a matter of law, present genuine
13
issues of material fact that cannot be resolved at this stage.
Bennett-Brady maintains that the medical records supplied by Dr. Weinstein
support her claim that she continued to suffer from a disabling psychological condition.
She argues that Aetna failed to consider the totality of the medical evidence, but rather,
“cherry-picked” and relied on only those entries favorable to a non-disabled finding. For
example, Aetna gave little weight to Dr. Weinstein’s conclusion that she could not work
due to severe depression. (AR, p. 1227.) Bennett-Brady also faults Aetna for ignoring
Dr. Weinstein’s treating relationship with her and for failing to give adequate weight to her
lengthy course of treatment and sustained diagnosis. See Paese v. Hartford Life &
Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006) (“[A] district court, engaging in a de
novo review, [can] evaluate and give appropriate weight to a treating physician’s
conclusions, if it finds these opinions reliable and probative.”). She further contends that
the “paper review” by Drs. Schroeder and Rubin is entitled to little weight, especially as
to her psychological condition, because neither doctor spoke to her or examined her.
Finally, Bennett-Brady contends that her claim is supported by the Social Security
Administration’s finding that she is entitled to disability benefits and the fact that Aetna
paid her benefits for more than a decade. See id. at 442-443 (permitting consideration
of Social Security Administration findings even though non-binding); Connors v.
Connecticut Gen. Life. Ins. Co., 272 F.3d 127, 136 (2d Cir. 2001) (suggesting that a factfinder may give less weight to evidence of improvement when benefits are being
terminated).
As to her physical limitation, Bennett-Brady maintains that Aetna failed to properly
14
consider the results of her Functional Capacity Evaluation, which Dr. Battista endorsed
and submitted to Aetna in support of Bennett-Brady’s claim. That evaluation resulted in
a finding that “Sharon Brady is not able to tolerate sedentary physical demand
characteristic work at this time. She can not [sic] perform floor to waist height lifting due
to impaired [mobility].”7 (AR, p. 916.) Bennett-Brady further argues that Aetna had no
contradictory opinion, but rather, simply relied on its own discounting of the evaluation.
In contrast, Defendants maintain that Aetna’s regular review of Bennett-Brady’s
claim properly led it to conclude that she was no longer psychologically impaired from
performing the duties of “any reasonable occupation” as of June 1, 2010. Based on three
different reviews of records submitted by Dr. Weinstein for June 2009-July 2010, Aetna
concluded that Bennett-Brady’s condition had improved and that the medical information
no longer supported a finding that Bennett-Brady was psychologically impaired from
performing the duties of “any reasonable occupation.” But Aetna did not act on this
conclusion immediately. It continued to assess Bennett-Brady’s claim through 2012 by
conducting in-house clinical reviews of medical records and information supplied by Dr.
Weinstein. After each clinical review, Aetna concluded that the medical documentation
failed to support a finding that Bennett-Brady remained functionally impaired from
performing “any reasonable occupation” under the Plan. Consequently, Aetna maintains
that Bennett-Brady failed to prove that she remained disabled under the Plan due to a
psychological impairment.
Aetna also determined that Bennett-Brady was not disabled from performing “any
7 Rose Physical Therapy evaluated whether Bennett-Brady could perform her job as a dispatcher, not
whether she could perform “any reasonable occupation.”
15
reasonable occupation” due to a physical impairment. Aetna’s review of the medical
documentation dating back to 2010 revealed an absence of medical records regarding
Bennett-Brady’s pain-management treatment or any objective evidence of a disabling
physical impairment. Moreover, Aetna’s multiple efforts in 2012 to obtain supporting
documentation for any physical impairment from Dr. Battista, aside from her endorsement
of the Functional Capacity Evaluation, went inexplicably unanswered. Consequently,
Aetna maintains that Bennett-Brady failed to prove that she was disabled under the Plan
due to a physical impairment.
On appeal of those determinations, Aetna further relied on the opinions of Drs.
Schroeder and Rubin. Each of them performed a clinical review of Bennett-Brady’s claim
and each of them disagrees with her treating physician. In his report, Dr. Schroeder
disagrees with Dr. Weinstein that Bennett-Brady suffered from a disabling psychological
condition and instead concludes that (1) Bennett-Brady’s psychological functional
impairment was not adequately corroborated by the medical evidence; (2) BennettBrady’s subjective claim of a disabling psychological condition was inconsistent with her
life activities and her recent adoption of a child; (3) Dr. Weinstein was unable to explain
how Bennett-Brady’s psychological condition was disabling, yet at the same time did not
prevent her from adopting and parenting a young child; (4) the degree of Bennett-Brady’s
claimed psychological impairment was inconsistent with the minimal treatment she was
receiving; and (5) Dr. Weinstein could not point to any clinical information to corroborate
Bennett-Brady’s claim of a disabling psychological condition. Dr. Schroeder thus opines
that Bennett-Brady has not demonstrated that she is disabled under the Plan due to a
16
psychological limitation.
Similarly, Dr. Rubin disagrees with Dr. Battista that Bennett-Brady suffered from a
disabling physical impairment and instead concludes that (1) there was insufficient
medical evidence from which to conclude that Bennett-Brady suffered from a disabling
condition (including the Functional Capacity Evaluation); and (2) Dr. Battista refused to
cooperate despite several attempts to get her to do so. Dr. Rubin thus opines that
Bennett-Brady has not demonstrated that she is disabled under the Plan due to a physical
limitation.
Having reviewed the evidence, this Court finds that the Administrative Record
contains conflicting reports and opinions that must be assessed at trial concerning
whether Bennett-Brady continued to be disabled from performing “any reasonable
occupation” under the Plan, either due to psychological or physical limitation.
Consequently, because determining whether Bennett-Brady continued to be disabled
under the Plan requires the weighing of competing medical opinions and assessment of
credibility, neither side is entitled to summary judgment. See Aitken v. Aetna Life Ins.
Co., 16 Civ. 4606 (PGG), 2018 WL 4608217, at * 21 (S.D.N.Y. Sept. 25, 2018) (denying
cross motions for summary judgment due to the need to weigh dueling physicians’
opinions); Sigal v. Metro. Life Ins. Co., No. 16-CV-3397 (JPO), 2018 WL 1229845, at *12
(S.D.N.Y. Mar. 5, 2018) (“[W]hen faced with a conflict between two potentially credible
physician’s reports, neither party is entitled to summary judgment.”); McDonnell, 2013 WL
3975941, at *13 (similar); Baumer, 803 F.Supp.2d at 268 (finding that contradictions
between medical opinions “require a credibility determination that can properly be made
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. . . when acting as the fact-finder in a bench trial, but not when considering a motion for
summary judgment”); Troy, 2006 WL 846355, at *11 (similar). The parties’ cross motions
for summary judgment on this claim are therefore each denied.
C. Bennett-Brady’s Breach of Contract Claim
In addition to her ERISA claim, Bennett-Brady alleges a breach of contract claim.
But this claim is premised solely on Defendants’ termination of her long-term disability
benefits under the Plan. As such, it must be dismissed as preempted by ERISA. See
Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 114 (2d Cir. 2008) (noting that
ERISA preempts those state common law claims that seek “’to rectify a wrongful denial
of benefits promised under ERISA-regulated plans, and do not attempt to remedy any
violation of a legal duty independent of ERISA’”) (quoting Aetna Health Inc. v. Davila, 542
U.S. 200, 214, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004)); Massimino v. Fidelity
Workplace Svcs., LLC, No. 1:15-CV-1046 (MAT), 2016 WL 6893609, at *2-3 (W.D.N.Y.
Nov. 23, 2016) (finding state breach of contract claim preempted by ERISA); Harrison v.
Met. Life. Ins. Co., 417 F. Supp. 2d 424, 432 (S.D.N.Y. 2006) (concluding that plaintiffs
“state common law breach of contract and breach of fiduciary duty claims . . . are
preempted by ERISA”); Lewis v. John Hancock Mut. Life Ins. Co., 6 F. Supp. 2d 244, 247
(S.D.N.Y. 1998) (holding that breach of contract claim grounded in state common law was
preempted by ERISA); see also 29 U.S.C. § 1144 (a) (providing that ERISA supersedes
any and all state laws relating to any employee benefit plan). Defendants’ request for
dismissal of this claim will therefore be granted. (Docket No. 23, p. 4 n.1.)
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IV. CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is
granted in part and denied in part, Bennett-Brady’s breach of contract claim is dismissed
as preempted by ERISA, and Bennett-Brady’s motion for summary judgment is denied.
Before scheduling this matter for trial, the parties are directed to engage in good-faith
mediation efforts to determine whether a pretrial resolution of this matter can be reached.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ motion for summary judgment
(Docket No. 21) is GRANTED in part and DENIED in part, consistent with the foregoing
decision.
FURTHER, that Plaintiff’s breach of contract claim is DISMISSED.
FURTHER, that Plaintiff’s motion for summary judgment (Docket No. 24) is
DENIED.
FURTHER, that the Clerk of Court is directed to SEAL the entirety (including subparts) of Docket Numbers 20, 22, 24-1, and 26.
FURTHER, that this case is REFERRED for alternative dispute resolution under
Section 2.1.B of the Plan for Alternative Dispute Resolution in the United States District
Court for the Western District of New York (“the ADR Plan”).
FURTHER, that the parties shall confer and file a stipulation selecting a mediator
by February 15, 2019.
FURTHER, that the initial mediation session shall be held no later than March 15,
2019.
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FURTHER, that within 10 days of each mediation session, the mediator shall file
a Mediation Certification setting forth the progress of mediation.
FURTHER, that the mediation process shall be completed by April 30, 2019.
FURTHER, that the parties shall timely comply with all relevant requirements of
the ADR Plan, which is available at http://www.nywd.uscourts.gov.
FURTHER, that the parties shall appear before this Court on May 15, 2019, at 9:00
am to report on the status of this case if it is not resolved through mediation.
SO ORDERED.
Dated: February 7, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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