Hammonds v. Aetna Life Insurance Company et al

Filing 54

OPINION AND ORDER denying 43 Motion for Judgment on the Pleadings; granting 45 Motion for Judgment as a Matter of Law. Signed by Judge James L Graham on 3/23/2015. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Patricia Hammonds,
Plaintiff,
v.

Case No. 2:13-cv-310

Aetna Life Insurance Co.,
et al.,
Defendants.
OPINION AND ORDER
This is an action filed by Patricia Hammonds, a former
employee of Cox Enterprises, Inc. (“Cox Enterprises”), pursuant to
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §1132(a)(1)(b), to recover long-term disability (“LTD”)
benefits from defendant Cox Enterprises, Inc., Welfare Benefit
Plan, which includes the Cox Enterprises, Inc. Long Term Disability
Flex Plan (“the Plan”).
defendant

Aetna

Life

Cox Enterprises is Plan administrator and
Insurance

administrator for the Plan.

Co.

(“Aetna”)

is

the

claims

AR 824, 948.

Under the terms of the Plan, a participant is totally disabled
in the first 24 months of a period of total disability when the
participant is “not able, solely because of injury or disease, to
work at your own occupation.”

AR 809.

After the first 24 months

of a period of total disability, a participant is totally disabled
when the participant is “not able, solely because of injury or
disease, to work at any reasonable occupation.”

AR 809.

A

reasonable occupation is “any gainful activity for which the
participant is, or may reasonably become, fitted by education,
training or experience.”

AR 809.

According to the Summary Plan

Description (“SPD”), a participant is disabled after the first 24

months of a period of disability if he is not able, solely because
of injury or disease, to work at any reasonable occupation, defined
as “any gainful activity which you are or reasonably could become
qualified to perform through education, training or experience
earning

equal

to

your

LTD

predisability earnings.”

benefit

AR 921.

but

no

less

than

60%

of

A period of total disability

ends as of the date that the participant is not totally disabled or
“fails to give proof that the participant is still totally disabled
or complies with Plan guidelines.”
Plaintiff

was

writer/inspector.

employed

by

AR 809-10.
Cox

Enterprises

as

a

CR

Her position involved inspecting the condition

of vehicles and writing repair estimates. AR 411. Plaintiff’s job
required her to regularly stand, walk, reach, talk, and hear, to
frequently stoop, kneel, crouch, and climb, and to have medium
strength.

AR 412.

On November 13, 2009, she filed an application

for LTD benefits, citing chronic back pain which rendered her
unable to bend, stoop, lift weight, and sit or stand for long
periods.

AR 309-310.

By letter dated January 8, 2010, plaintiff

was notified that Aetna had determined that she was totally
disabled from her own occupation and eligible to receive LTD
benefits for up to eighteen months.
requesting

additional

medical

AR 370.

records

and

However, after
information

from

plaintiff, obtaining a review of plaintiff’s file by an independent
medical examiner, and securing a transferable skills analysis and
a labor market analysis, Aetna advised plaintiff by letter dated
November 11, 2011, that her disability benefits would end effective
November 13, 2011, due to her failure to meet the “any occupation”
definition of disability.

AR 491.

2

Plaintiff pursued an appeal

from that decision and provided Aetna with additional medical
records.

Aetna engaged three independent medical examiners to

review plaintiff’s file. By letter dated August 9, 2012, plaintiff
was advised that the decision to terminate benefits was upheld. AR
298. Plaintiff filed her complaint in the instant case on April 3,
2013.

This matter is before the court on the motions of the

parties for judgment on the administrative record.
I. Standard of Review
A. Applicability of Arbitrary and Capricious Standard of Review
A plan administrator’s denial of benefits is reviewed de novo
unless the benefit plan specifically gives the plan administrator
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.

Morrison v. Marsh & McLennan

Companies, Inc., 439 F.3d 295, 300 (6th Cir. 2006). Where an ERISA
plan gives the plan administrator such discretionary authority, the
administrator’s

decision

capricious standard.

is

reviewed

under

the

arbitrary

and

Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111 (1989).
The SPD provides: “The plan administrator is specifically
empowered to exercise discretion in the interpretation of the terms
of the plans or programs.

Its determinations regarding the terms

and eligibility will be conclusive and binding.”

AR 933.

Under

the terms of the Administrative Services Contract between Cox
Enterprises and Aetna, Aetna agreed to provide services for the
administration and operation of the Plan, and Cox Enterprises
delegated to Aetna the authority to make determinations on behalf
of Cox with respect to benefit payments under the Plan.
971.

The SPD further provides:

3

AR 965,

Aetna, the claims administrator, has final authority to
determine the amount of benefits that will be paid on any
particular benefit claim. In making such determinations,
the plan administrator has the complete discretion and
authority to make factual findings regarding a claim and
to interpret the terms of the plan as they apply to the
claim. In any case, you will receive only those benefits
under the plan that the plan administrator in its sole
discretion , determines you are entitled to receive.”
AR 935. The court finds that the arbitrary and capricious standard
of review applies in this case.
B. Conflict of Interest
Plaintiff contends that any financial conflict of interest on
the part of the claims administrator should be considered in
reviewing the decision to deny benefits. In applying the arbitrary
and capricious standard, a court will weigh as a factor whether a
conflict of interest existed on the part of the decision-maker in
determining whether there was an abuse of discretion. Metropolitan
Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008); Bennett v. Kemper
Nat’l Servs., Inc., 514 F.3d 547, 552-53 (6th Cir. 2008).

Any

conflict of interest inherent in self-funded plans does not alter
the standard of review, but rather is taken into account as a
factor in determining whether the decision was arbitrary and
capricious.

Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th

Cir. 1998).

However, “mere allegations of the existence of a

structural conflict of interest are not enough to show that the
denial of a claim was arbitrary; there must be some evidence that
the alleged conflict of interest affected the plan administrator’s
decision to deny benefits.”

Id. at 433.

More weight is given to the conflict where circumstances
suggest a higher likelihood that it affected the benefits decision.

4

DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440, 445 (6th
Cir. 2009).

A long history of biased claims administration may

render the conflict more important, as opposed to a situation where
the administrator has taken active steps to reduce potential bias
and to promote accuracy, in which case the conflict is less
important.

See Curry v. Eaton Corp., 400 F.App’x 51, 58 (6th Cir.

2010). A plan participant must provide “significant evidence” that
the conflict actually affected or motivated the benefits decision.
Peruzzi, 137 F.3d at 433.

If the conflict of interest did not

actually motivate the administrator’s decision, then it is given no
weight

as

a

factor

in

determining

arbitrary and capricious.

See

whether

the

decision

was

Curry, 400 F.App’x at 59 (noting

lack of indication that the denial of benefits specifically was
motivated in any part by the conflict of interest); Pflaum v. UNUM
Provident Corp., 175 F.App’x 7, 10 (6th Cir. 2006)(noting that
where plaintiff pointed to nothing beyond the mere existence of a
conflict of interest to show that the administrator’s decision was
motivated by self-interest, “we give no further consideration in
the arbitrary and capricious analysis to the possibility that the
conflict affected” the decision).
The Cox Enterprises Plan is a self-insured plan funded by
employer

and

employee

contributions.

AR

824.

Under

the

Administrative Services Contract between Cox Enterprises and Aetna,
Aetna is paid an administrative charge for acting as claims
administrator. AR 969-970. Cox agreed to give notice to employees
that it was assuming complete financial liability for the payment
of benefits under the Plan, and further agreed to indemnify Aetna
for any loss, liability, expense, cost or obligation resulting from

5

and arising out of claims.

AR 972-73.

Because Aetna is not

responsible for paying claims out of its own funds, preservation of
Aetna’s assets would not factor into a benefits determination. One
could argue that Aetna might be motivated to conservatively award
benefits to ensure that Cox Enterprises remained satisfied with its
administrative services, for which it was paid an administrative
charge.

However, Cox Enterprises delegated to Aetna the authority

to make determinations on behalf of Cox with respect to benefit
payments under the Plan. There is no evidence that Cox Enterprises
interfered with Aetna’s exercise of discretion in any way or
pressured Aetna to deny any application for benefits, including
plaintiff’s claim.
been shown.

No history of biased claims administration has

In fact, Aetna granted plaintiff’s initial claim for

LTD benefits under the broader definition of total disability
applicable to that claim.

The circumstances of this case and the

lack of evidence of bias weigh against a finding of any conflict of
interest on the part of Aetna.
II. Failure to Exhaust Administrative Remedies
Defendants argue that they are entitled to judgment because
plaintiff allegedly failed to timely exhaust her administrative
remedies under the Plan.

ERISA’s administrative scheme requires a

participant to exhaust his or her administrative remedies prior to
commencing suit in federal court. Miller v. Metropolitan Life Ins.
Co., 925 F.2d 979, 986 (6th Cir. 1991).

The decision whether to

apply the exhaustion requirement is committed to the discretion of
the district court. Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th
Cir. 1994).

Exhaustion and review by plan administrators allows

plan fiduciaries to efficiently manage their funds, to correct

6

their errors, to interpret plan provisions, and to assemble a
factual record which will assist the court in reviewing the
fiduciaries’ actions. Ravencraft v. UNUM Life Ins. Co. of America,
212 F.3d 341, 343 (6th Cir. 2000)(citing Makar v. Health Care Corp.
of Mid-Atlantic, 872 F.2d 80, 83 (4th Cir. 1989)).
Failure to exhaust administrative remedies is excused “‘where
resorting to the plan’s administrative procedure would simply be
futile or the remedy inadequate.’”
Inc.,

370

F.3d

499,

505

(6th

Coomer v. Bethesda Hospital,

Cir.

2004)(quoting

Fallick

v.

Nationwide Mutual Ins. Co., 162 F.3d 410, 419 (6th Cir. 1998)).
“The standard for adjudging the futility of resorting to the
administrative remedies provided by a plan is whether a clear and
positive indication of futility can be made.” Fallick, 162 F.3d at
419.

A plaintiff must show that it is certain that his claim will

be denied on appeal, not merely that he doubts that an appeal will
result in a different decision.

Coomer, 370 F.3d at 505.

The

administrative futility doctrine has been applied in two scenarios:
(1) when the plaintiff’s suit is directed to the legality of the
plan, not to a mere interpretation of it; and (2) when the
defendant lacks the authority to make the decision sought by
plaintiff.

Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d

532, 535 (6th Cir. 2006).
present in the instant case.

Neither of those two scenarios is
However, this case does present

unusual circumstances.
The Plan required that an appeal from an adverse benefit
determination be filed within 180 days.

The adverse benefits

determination was issued by Aetna on November 11, 2011. Therefore,
plaintiff’s notice of appeal was due by May 7, 2012.

7

A letter to

plaintiff’s counsel from Aetna dated June 29, 2012, stated that
plaintiff’s appeal request was received on May 16, 2012.

AR 292.

However, the record also includes a letter from counsel dated April
11, 2012, in which counsel requested a thirty-day extension to
submit an official appeal, claiming that the request was based in
large part on Aetna’s failure to acknowledge counsel’s December 19,
2011, letter requesting a copy of the applicable LTD policy manual
to assist him in preparing the appeal.

AR 784.

This letter raises

the issue of whether the delay in filing the appeal may have been
due in part to Aetna’s delay in furnishing plan documents.

The

record contains no correspondence from Aetna expressly granting the
thirty-day extension, but, by the same token, the June 29, 2012,
letter acknowledging the receipt of plaintiff’s appeal said nothing
about the appeal being late.

Rather, the letter stated that

plaintiff’s records were being referred to an independent examiner
for review.

AR 292.

Aetna heard plaintiff’s appeal on the merits

and rendered a decision by letter dated August 9, 2012.

AR 298.

The final decision letter also makes no mention of the appeal being
untimely.

Thus, it could be argued that Aetna implicitly granted

counsel’s request for an extension.
The

court

concludes

that

defendants

waived

the

time

limitations and implicitly granted an extension by considering the
appeal on its merits.

Even assuming that untimely exhaustion

argument has not been waived, plaintiff effectively exhausted her
administrative remedies because Aetna addressed her appeal on the
merits, and Aetna has presented an administrative record adequate
for review by this court, thus satisfying the purposes underlying
the exhaustion requirement. Defendants’ request for judgment based

8

on the alleged untimeliness of plaintiff’s appeal is denied.
III. Dismissal of Aetna as a Party
Aetna moves to be dismissed as a party, noting that Cox
Enterprises is the Plan administrator, and that Aetna is just the
claims

administrator.

However,

under

the

terms

of

the

Administrative Services Contract, Cox Enterprises delegated to
Aetna the authority to make determinations on behalf of Cox with
respect to benefit payments under the Plan.

AR 965, 971.

The

Sixth Circuit has held that “when an insurance company administers
claims for employee welfare benefit plans and has authority to
grant or deny claims, the insurance company is a ‘fiduciary’ for
ERISA purposes” and is a “proper party defendant for a denial of
benefits claim by Plaintiff.”

Moore v. Lafayette Life Ins. Co.,

458 F.3d 416, 438 (6th Cir. 2006).

Aetna is a proper party

defendant in this case, and Aetna’s motion for judgment on this
ground is denied.
IV. Aetna’s Initial Decision to Deny Benefits
A. Report of Dr. Joseph Rea, M.D.
In deciding plaintiff’s claim for continuing LTD benefits,
Aetna arranged for a review of plaintiff’s file by an independent
medical examiner, Joseph Rea, M.D., board-certified in occupational
medicine.

In a report dated October 14, 2011, Dr. Rea described

his review of plaintiff’s file and his conclusions.
In

regard

to

the

treatment

records

of

Dr.

AR 640-644.

Phillip

Stern,

plaintiff’s internist, Dr. Rea noted that:
- plaintiff had been treated by Dr. Stern for back pain
since May 1, 2009, with pain medication and muscle
relaxers, and Dr. Stern had referred her to a pain
management clinic for treatment of fibromyalgia and back
pain;
9

- an April 30, 2010, attending physician statement of Dr.
Stern reported a diagnoses of fibromyalgia, herniated
disk, depression and anxiety. [Dr. Stern stated that
plaintiff reported constant pain and burning in both
legs, as well as generalized muscle and joint pain, and
that she was unable to sit or stand for more than twenty
to thirty minutes. See AR 373-74];
- Dr. Stern opined in an attending physician statement
dated November 30, 2010, that plaintiff’s fibromyalgia,
herniated
disc,
spastic
bladder,
and
depression
permanently prevented her from returning to work. See
AR 394-395; and
- Dr. Stern described plaintiff’s physical limitations in
an attending physician statement dated May 4, 2011, and
opined that plaintiff could never return to work. [Dr.
Stern indicated that plaintiff could never climb, crawl,
lift, pull, push, carry, engage in firm hand grasping,
fine or gross manipulation, repetitive motion and
stooping; that she could occasionally kneel, reach
forward and above her shoulder, bend and twist, engage in
hand grasping, sitting, standing and walking, lifting up
to ten pounds; that she could operate a motor vehicle but
not hazardous machinery or power tools; and that she had
no exposure limitations to heat, cold, dampness, noise,
dust, fumes, chemicals or radiation. See AR 406-408].
Dr. Rea also reported that when he spoke with Dr. Stern in a
peer-to-peer consultation on October 10, 2011, Dr. Stern stated
that

he

would

leave

any

assessment

regarding

plaintiff’s

restrictions and limitations up to her pain specialist.

AR 642.

Dr. Rea commented on the records of Dr. Anapuma Chauhan,
plaintiff’s rheumatologist.

Dr. Rea noted that:

- plaintiff had been diagnosed with fibromyalgia by Dr.
Chauhan and was being treated by him with medication and
injections;
- the July 20, 2009, office notes of Dr. Chauhan reported
that plaintiff was doing well in general, and that her
medications were continued. See AR 344; and
- plaintiff saw Dr. Chauhan on March 2, 2011, and was
diagnosed as having bilateral carpal tunnel syndrome.
10

Plaintiff was advised to try carpal tunnel wrist braces,
and physical therapy for back pain was prescribed. See
AR 450. Plaintiff was seen again on June 14, 2011, and
she reported that she had not been able to get wrist
braces for carpal tunnel syndrome. A physical exam on
that date showed normal gait and joints, but that tender
points suggesting fibromyalgia were present.
Dr. Rea reported that he spoke with Dr. Chauhan on October 11,
2011.

Dr. Chauhan stated that she believed that plaintiff’s

fibromyalgia itself was not disabling, and that plaintiff had mild
spinal stenosis and mild carpal tunnel syndrome, for which no
surgery had been performed. Dr. Chauhan had no specific opinion on
plaintiff’s restrictions or limitations.

AR 642-43.

Dr. Rea observed that plaintiff saw Dr. Zhanna Mikulik, a
rheumatologist, on August 8, 2009, complaining of shoulder pain.
She was diagnosed as having bursitis, and received an injection.
AR 641.

[Dr. Mikulik reported that his physical examination of

plaintiff revealed that she had a full range of motion in all her
joints, and was not in acute distress, that her shoulder was
injected with no complications, and that her shoulder pain was
improved with medication.

See AR 344].

Dr. Rea noted an MRI of plaintiff performed on October 2,
2009, which showed a shallow disc protrusion at one level without
significant central canal stenosis or neural foraminal narrowing,
and

some

degenerative

encroachment effect.

facet

arthropathy

See AR 359-60, 641.

with

no

significant

Dr. Rea also commented

on a neurology evaluation and an EMG on October 11, 2010, by Dr.
Erick A. Arce, a neurologist.

Dr. Arce’s examination of plaintiff

showed chronic mild motor lumbosacral radiculitis, diminished
sensation in the left arm, and decreased pinprick at the left lower
extremity, but was otherwise unremarkable. AR 641. In his report,
11

Dr.

Arce

stated

that

there

was

no

medical

explanation

for

plaintiff’s symptoms and that neuropathy was unlikely. See AR 392,
641.

[The record also includes a letter dated May 28, 2010,

written by Dr. Nancy M. Vaughan regarding an MRI of plaintiff’s
sacrum.

Dr. Vaughan noted that the MRI was unremarkable, with no

significant disc protrusion, and stated, “I am at a loss to explain
her intense pain.”

See AR 389].

In a letter to Aetna dated May 4, 2011, plaintiff stated, “I
don’t believe that my mental health is an issue regarding my
disability claim.”
office

visit

psychiatrist.

AR 415.

notes
AR 641.

of

Nonetheless, Dr. Rea reviewed the
Dr.

Mahmoud

Shehata,

plaintiff’s

Dr. Shehata diagnosed plaintiff as having

recurrent major depression, and prescribed medication.

AR 642.

[Dr. Shehata’s initial treatment note on February 12, 2010, stated
that

plaintiff

denied

suicidal

or

homicidal

ideations

or

hallucinations; her thoughts were logical, coherent, and goal
directed; she was alert and oriented to time, place, and person;
she appeared to have good insight and judgment; she was able to
recall two objects out of three in five minutes; and her general
fund of knowledge was good.

See AR 462-463].

Dr. Rea also considered plaintiff’s activities of daily living
questionnaire,

in

including

inability

disruption.

her

which

plaintiff
to

drive

described
long

her

limitations,

distances

and

sleep

Plaintiff also reported that she was unable to fix

food because of the standing involved, which resulted in pain, and
that she depended on her husband to perform chores around the
house.

See AR 465-469, 642.

Dr. Rea concluded that there was no support for any physical

12

functional impairment sufficient to meet the “any occupation”
disability standard. AR 643. He noted that the only exam findings
corroborating

plaintiff’s

impairments

of

low

back

pain

from

degenerative disc disease, mild bilateral lumber radiculitis, and
mild bilateral carpal tunnel syndrome were a previous lumbar MRI
(referring to the October 2, 2009, MRI which showed a shallow
central disc protrusion and some degenerative facet arthropathy
without significant central canal stenosis or neural foraminal
narrowing, see AR 259-60), and electrodiagnostic studies (referring
to an EMG report showing chronic mild motor lumbosacral radiculitis
at one point bilaterally, see AR 392).

AR 643.

Based on the

records he reviewed, Dr. Rea also listed restrictions which he felt
might be appropriate in light of plaintiff’s degenerative disc
disease.

AR 643.

He indicated that the estimated physical demand

level of work that plaintiff could perform would fall into the
sedentary category.

AR 644.

B. Transferable Skills and Labor Market Analyses
Based on Dr. Rea’s report, Aetna obtained a transferable
skills analysis and a labor market analysis from Coventry Health
Care (“Coventry”).

AR 628-639.

Coventry considered Dr. Rea’s

report, an education and work history questionnaire completed by
plaintiff, and information obtained during a telephone interview
with plaintiff on October 25, 2011.

AR 628, 636.

Taking into

account the limitations assessed by Dr. Rea, Coventry identified a
non-exhaustive list of five sedentary-level occupations within a
one-hundred-mile radius of plaintiff’s home which were good matches
for plaintiff’s sedentary restrictions and transferable skills. AR
639.

13

C. Aetna’s Decision Letter
By letter dated November 11, 2011, Aetna notified plaintiff
that her LTD benefits would be terminated on November 13, 2011.
Aetna determined that plaintiff did not meet the “any occupation”
definition of total disability, which required that she was “not
able,

solely

because

of

injury

or

disease,

to

work

at

any

reasonable occupation,” defined as “any gainful activity for which
you are, or may reasonably become, fitted by education, training or
experience.”

AR 491.

Aetna indicated that it had reviewed the

records of Drs. Stern, Arce, Chauhan, and Shehata.

AR 492.

The

letter advised that “our clinical consultants as well as our
behavioral

health

consultants

concluded

that

the

medical

information does not support your inability to work due to physical
or psychological limitations.”

AR 492.

The letter further

referenced the review of plaintiff’s records by Dr. Rea, noting in
particular that when Dr. Rea spoke with Drs. Stern and Chauhan, “no
specific restrictions or limitations with respect to work were
indicated by either doctor.”

AR 492.

The letter noted that Dr.

Rea’s report “indicated there is no clinical evidence on exam or
radiographically that would restrict you from working in a full
time, sedentary occupation.”

AR 492.

Aetna also referred to

Coventry’s reports which identified five jobs which plaintiff could
engage in given her physical capabilities and restrictions, noting
that “these occupations would not require you to perform any
activities that you are medically restricted from performing[.]”
AR 492-493.

Aetna also acknowledged that plaintiff had been

approved for social security disability benefits.

See decision of

the administrative law judge finding that plaintiff was disabled as

14

of April 30, 2009, and was entitled to disability benefits, at AR
416-425.

However, Aetna stated that this determination was not

entitled

to

significant

weight,

noting

that:

social

security

determinations are driven by Social Security Administration (“SSA”)
regulations as opposed to the Plan definition of disability; the
evidence relied on in awarding social security benefits and the
basis for that determination had not been provided to Aetna; and
Aetna may have had different evidence.

AR 493.

V. Plaintiff’s Appeal
A. Report of Dr. Leonard Schnur
On appeal, plaintiff provided additional medical records to
Aetna.

These records included: additional treatment records and a

physical capacity evaluation from Dr. Stern; treatment records from
Chauhan; a report from Dr. Michael Orzo; the treatment records and
a chronic pain residual functional capacity questionnaire from Dr.
Sachida N. Manocha, a pain specialist; treatment records and a
mental impairment questionnaire from Bonita C. Beardslee, a nurse
practitioner,

concerning

psychological

counseling;

treatment

records from Dr. Bruce L. Hennessy; and reports concerning MRI’s of
the lumber and thoracic spine performed on September 13 and 15,
2011.
Aetna arranged for plaintiff’s records to be reviewed by Dr.
Leonard Schnur, Psy.D., a board-certified psychologist.

In his

report of July 10, 2012, AR 538-541, Dr. Schnur described his
review of the records of plaintiff’s psychiatrist, Dr. Shehata, who
diagnosed plaintiff as having major depressive disorder.
Schnur

noted

that

Dr.

Shehata

did

not

provide

any

Dr.
formal

measurements of cognitive or emotional functioning to substantiate

15

the presence of a functional impairment.

AR 539.

Dr Schnur also reviewed the office notes of Bonita Beardslee,
a nurse practitioner dated March 21, 2012, and April 10, 2012,
noting, at AR 540 that:
- Ms. Beardslee evaluated plaintiff as having depressive
disorder and anxiety disorder, with anhedonia and poor
concentration, but noted no formal measurements of
cognitive or emotional functioning; and
Ms.
Beardslee
completed
a
mental
impairment
questionnaire dated April 12, 2012, which referred to
plaintiff’s history of depression and anxiety. AR 725727. Ms. Beardslee noted that plaintiff was alert with
no cognitive impairment. Although Ms. Beardslee provided
a checklist of plaintiff’s symptoms, no formal
measurements of cognitive or emotional functioning were
administered.
Ms. Beardslee indicated that she was
unable to determine plaintiff’s prognosis, as she had
only seen her twice, but that in light of plaintiff’s
decreased energy, persistent anxiety, mood disturbances,
and difficulty thinking and concentrating, plaintiff
would be unable to meet standards in three aspects of
unskilled work. See AR 726-27.
Dr. Schnur spoke with Ms. Beardslee on July 5, 2012. Ms. Beardslee
stated that plaintiff had been improving through a combination of
medication and therapy, and that she should have been able to
return to work from a psychiatric standpoint.

Ms. Beardslee

confirmed that no formal measurements of cognitive or emotional
functioning were administered to substantiate the presence of a
functional impairment from a psychological standpoint.

AR 540-41.

Dr. Schnur concluded that there was a lack of examination
findings to substantiate a functional impairment across cognitive,
emotional and behavioral spheres which would preclude plaintiff
from performing the work of any occupation, and that the records
also did not substantiate the presence of any adverse medication
effects

impacting

functionality
16

from

a

cognitive

or

physical

standpoint.

AR 541.

B. Report of Dr. Rubin Stuart
Aetna also obtained a review of plaintiff’s records by Dr.
Rubin Stuart, M.D., who is board-certified in physical medicine and
rehabilitation.

In his report at AR 530-533, Dr. Rubin commented

on plaintiff’s medical records, including:
- an MRI on October 18, 2010, which revealed “very mild
degenerative changes at multiple levels” with “no canal
stenosis or neuroforminal encroachment, AR 390-391;
- an MRI on September 15, 2011, which revealed mild
degenerative disk disease and facet degenerative changes
in the thoracic spine and some foraminal narrowing in the
cervical spine.
[Dr. Matthew M. Wagner, M.D., who
analyzed the MRI, stated that there was likely some
foraminal narrowing in the cervical spine at C4-C5 and
recommended an MRI of the cervical spine. See AR 772773. The record does not show that any cervical MRI was
performed.];
- the November 7, 2011, report of Dr. Michael Orzo, M.D.,
in which Dr. Orzo noted that the September 15, 2011, MRI
showed mild degenerative disc disease, three minor disc
bulges without canal stenosis or foraminal narrowing. AR
766.
Dr. Orzo observed that plaintiff was sitting
uncomfortably, had mild pain with facet loading and
extension at the waist, and tenderness in the bilateral
piriformis regions, and demonstrated a negative straight
leg raise in the sitting position at ninety degrees.
[However, flexion at the waist and sensation and strength
throughout the lower extremities were within normal
limits.
Dr. Orzo commented that “it is difficult to
determine the exact etiology for the patient’s pain.”
See AR 767];
- the attending physician statement of Dr. Stern dated
May 4, 2011, see AR 405-408, noting that plaintiff had no
ability to work;
- the December 22, 2011, physical capacity evaluation
completed by Dr. Stern, see AR 740-742, indicating that
plaintiff could work zero to three days per week and less
than three consecutive weeks per month, that plaintiff
17

had a mental impairment hindering her ability to
understand, remember and carry out simple instructions,
that plaintiff should never stoop, and could sit fifteen
minutes and stand fifteen minutes;
- the office notes of Dr. Chauhan, plaintiff’s
rheumatologist, for February 27, 2012, documenting an
office visit for fibromyalgia syndrome, see AR 743-45,
which did not document any physical examination;
- the April 12, 2012, mental impairment questionnaire,
see AR 725-727, completed by Ms. Beardslee, which noted
that plaintiff’s impairment could be expected to last at
least twelve months;
a
chronic
pain
residual
functional
capacity
questionnaire dated May 2, 2012, see AR 735-738,
completed by Dr. Sachida Manocha, M.D., plaintiff’s pain
specialist, which indicated that plaintiff could
occasionally lift up to ten pounds and would have
significant
limitations
reaching,
handling,
and
fingering; and
- a record indicating that plaintiff had a lumbar
epidural injection in May or June of 2012, with the
stated diagnosis being chronic pain syndrome, with disc
degeneration,
cervicalgia,
thoracic/lumbosacral
neuritis/radiculitis, myalgia and myositis, but no
physical exam findings were given.
Dr. Rubin attempted to speak to Dr. Manocha and Dr. Stern by
telephone and left his call-back information with their offices,
but his calls were apparently not returned.
Dr.

Rubin

concluded

that

the

AR 532.

plaintiff’s

impairments were not supported by the record.

functional

He stated that it

was unclear why plaintiff’s doctors had indicated that she is
unable to work, as, although her doctors had assigned restrictions,
there were no physical examination notes supporting the functional
impairments.

AR 532.

Dr. Rubin opined that plaintiff was not

precluded from working at a sedentary level.

AR 532.

Dr. Rubin

also reported that although no adverse medication effects were
18

noted, it appeared that plaintiff had cognitive issues reportedly
related to fibromyalgia, and that because she was on Percocet and
other medications which might have cognitive side effects, she
should be monitored while operating machinery, driving, balancing,
or assuming unguarded heights.

AR 533.

C. Report of Dr. Tamara Bowman
Aetna also obtained a review of plaintiff’s file by Dr. Tamara
Bowman, M.D., who is board-certified in internal medicine.

In her

report dated July 10, 2012, see AR 548-554, Dr. Bowman stated that
plaintiff

had

a

long

history

of

low

back

pain

as

well

generalized muscle pain diagnosed as fibromyalgia, noting:
- the MRI results of October 2, 2009, which revealed a
shallow central disk protrusion without significant
central canal stenosis or neural foraminal narrowing and
some degenerative facet arthropathy with a synovial cyst,
see AR 359-60;
- plaintiff’s treatment in August of 2009 for bursitis,
at which time plaintiff demonstrated a full range of
motion of all joints on examination, see AR 344;
- the October 11, 2010, evaluation by neurologist Dr.
Erick
Arce,
where
plaintiff
exhibited
diffuse
hyperreflexia
without
upper
motor
neuron
signs,
diminished sensation to temperature in the left arm, and
increased sensation to pin prick in the left lower
extremity; however, Dr. Arce indicated that there was no
neurological explanation for plaintiff’s symptoms, see AR
392;
- an MRI of the thoracic spine on October 18, 2010, which
revealed only very mild degenerative changes with no
evidence of canal stenosis, neural foramen encroachment,
or focal disk protrusion or herniation at any level, see
AR 390-91;
- an MRI of the lumbar spine on September 15, 2011, which
revealed minor disk bulges and facet degenerative changes
but no evidence of canal stenosis or foraminal narrowing;
an MRI of the thoracic spine on that same date revealed
19

as

degenerative disk disease, see AR 772;
- Dr. Stern’s office records, where the only discernable
clinical findings were plaintiff’s blood pressure and
weight.
These records included Dr. Stern’s attending
physician’s statement dated May 4, 2011, see AR 405-408,
in which he stated that he did not expect plaintiff to
ever return to work, noting the diagnoses of fibromyalgia
and degenerative disk disease, and indicated that
plaintiff could only sit and stand occasionally, and was
unable to perform fine manipulations with her hands, but
provided no documentation of clinical findings; and the
attending physician’s statement completed on December 22,
2011, by Dr. Stern, see AR 740-42, noting plaintiff’s
restrictions;
- the June 14, 2011, record of a physical exam of
plaintiff by Dr. Chauhan which showed evidence of tender
points consistent with fibromyalgia; however, plaintiff
had full range of motion at all joints and a normal gait.
See AR 768-770. [Dr. Chauhan noted that he did not
observe any joint deformity, heat, swelling, erythena, or
effusion in the shoulders, elbows and hands and that the
“problem is stable.” See AR 768, 770.];
- the February 27, 2012, record of plaintiff’s
appointment with Dr. Chauhan, at which time plaintiff
complained of shoulder, hip and low back pain, fatigue,
blurred vision, paresthesias, weakness, morning stiffness
and headache; no physical exam findings were documented
to support functional impairment. See AR 743-45. [The
report was negative for extremity weakness, gait
disturbance,
joint
swelling,
limping,
or
memory
impairment. See AR 743-45.];
- a physical examination of plaintiff by Dr. Michael
Orzo, a pain management specialist, who evaluated
plaintiff on November 7, 2011, for lower extremity and
back pain. See AR 766-767. On physical examination, Dr.
Orzo noted that plaintiff appeared to sit uncomfortably
during the interview and shifted her weight frequently.
However, plaintiff: had only mild pain in the facet
regions with extension at the waist to ten to fifteen
degrees; flexion at the waist was within normal limits;
sensation and strength in her lower extremities was
normal; had negative straight leg raise in the sitting
position at ninety degrees with negative dural tension
signs bilaterally; and had some tenderness to palpation
20

in the bilateral piriformis regions. Dr. Orzo concluded
that plaintiff had some piriformis syndrome with a
possible neuropathic component in the lower extremities.
See AR 767;
the
records
of
Dr.
Bruce
Hennessy,
a
gastroenterologist, who saw plaintiff on February 3,
2012, for complaints of abdominal pain. Her physical
exam was completely normal. She had a normal range of
motion in her neck; no abdominal tenderness; normal gait,
range of motion and strength; no depression or anxiety;
and was oriented to time, space and person. See AR 755757. Plaintiff underwent a colonoscopy on February 21,
2012. A benign polyp was removed during the procedure,
and there was some diverticulosis and internal
hemorrhoids, but no evidence of diverticulitis. See AR
749-52. An upper endoscopy that same date revealed some
evidence of gastritis and grade B esophagitis consistent
with mild chronic inflammation due to gastroesophageal
reflux. See AR 751-52; and
- the records of Dr. Sachida Manocha, a pain management
specialist who saw plaintiff on five occasions and
prescribed medication for fibromyalgia; however, no
physical examination findings were documented at these
visits with the exception of plaintiff’s blood pressure,
which was unremarkable. See AR 697-704, 711, 715, 708.
On April 4, 2012, plaintiff complained to Dr. Manocha
about numbness in her left arm, but this was not
substantiated on physical exam, and Dr. Manocha noted
that plaintiff “SEEMS OK.”. See AR 703-704. Dr. Manocha
completed a chronic pain residual functional capacity
questionnaire on May 2, 2012, describing plaintiff’s
physical limitations.
See AR 551, 735-738.
[Dr.
Manocha’s
assessment
of
plaintiff’s
functional
limitations differed from Dr. Stern’s in some respects,
in that Dr. Stern noted that plaintiff could only
occasionally reach, handle or finger, see AR 741-42,
whereas Dr. Manocha opined that plaintiff could grasp,
turn, or twist objects or engage in fine finger
manipulations for eighty percent of the work day. See AR
738.] During a visit on June 6, 2012, plaintiff stated
that she was feeling much better and Dr. Manocha noted
that she “SEEMS OK.” See AR 697-701.
Dr. Bowman stated in her report that she attempted to speak

21

with Dr. Stern on July 2, 2012.

Dr. Bowman informed Dr. Stern’s

assistant that she needed to ask Dr. Stern about his physical exam
findings, if any, which were made during plaintiff’s visits, and
whether he felt plaintiff could perform at least at the sedentary
level.

Dr. Bowman spoke with Dr. Stern’s assistant on July 5,

2012, who indicated that Dr. Stern had seen plaintiff on five
occasions

between

November

13,

2011,

and

July

15,

2012.

Plaintiff’s visit on June 1, 2012, was for carpal tunnel symptoms,
but no actual abnormalities were documented on physical exam, and
plaintiff was referred to a pain management specialist.

The

assistant also relayed Dr. Stern’s opinion that plaintiff would be
unable to perform sedentary work due to her back and leg pain and
carpal tunnel symptoms.
provide

any

physical

functional impairment.
Dr.

Bowman

insufficient

However, the assistant was unable to
exam

clinical

findings

to

support

AR 552.

concluded

clinical

or

in

findings,

her

report

physical

that

exam

there

findings,

were
lab

abnormalities, or diagnostic study results to support a level of
functional impairment that would preclude sedentary work.
553.

AR 552-

She noted that although plaintiff had a long history of back

and leg pain, the imaging studies showed no evidence of central
canal stenosis or neural foraminal impingement, and there was no
documentation on physical examination of any signs of neural
compression resulting in a functional deficit that would preclude
work at a sedentary physical demand level.

AR 552.

Dr. Bowman

further observed that the only documentation of decreased range of
motion was during the November 7, 2011, consultation with Dr. Orzo,
where plaintiff was noted to have mild pain in the facet regions
upon extension of ten to fifteen degrees at the waist; otherwise,
22

Dr. Orzo found that plaintiff’s sensation and strength in her lower
extremities were within normal limits.

AR 553.

Dr. Bowman also

commented that there was no documentation of abnormal gait, and
that, although Dr. Manocha referred to muscle spasm, weakness and
atrophy, swelling, abnormal posture and gait, and sensory changes
in

the

functional

capacity

questionnaire,

there

was

no

documentation of any of these on physical examination, and no
documentation of joint deformity or effusion, or signs of swelling,
redness or warmth.

AR 553.

Dr. Bowman further noted that,

according to plaintiff’s rheumatologist, there was no evidence of
inflammatory arthritis, and there was also no documentation of
lupus or joint connective tissue disease, of positive serologic
markers of inflammation, of neurologic exam abnormalities involving
the upper extremities, or of signs of carpal tunnel syndrome
supported by electrodiagnostic studies. Dr. Bowman reiterated that
Dr. Stern provided no additional clinical findings to support a
functional deficit that would preclude sedentary work.

AR 553.

Dr. Bowman concluded that plaintiff should be able to perform at a
sedentary physical demand level.

AR 553.

She also noted that

there was no documentation of adverse effects from medications, and
that although there were references to plaintiff having some
cognitive impairment, there was no documentation based on mental
status examination or formal neuropsychological testing to support
cognitive impairment.

AR 554.

D. Aetna’s Decision on Appeal
By letter dated July 27, 2012, Aetna advised Dr. Stern of the
results of the independent review and attached copies of the
reports of Drs. Rubin and Bowman.

Aetna invited Dr. Stern to

review the reports, to indicate if he disagreed with any of the
23

reviewers’ conclusions, and to provide any clinical evidence or
observations which had not yet been provided.

AR 562-575.

A

similar letter was sent to Dr. Manocha, with a copy of Dr. Rubin’s
report.

AR 577-583.

That same date, Aetna also sent a letter to

plaintiff’s counsel informing him that the reports had been sent to
Drs. Stern and Manocha, inviting their comments.

AR 296.

Aetna

received no responses to this correspondence.
By letter dated August 9, 2012, Aetna advised plaintiff that
the decision to terminate benefits had been upheld.

AR 298-302.

The letter stated that:
- plaintiff’s file was reviewed by independent peer
physicians, and that the reports were sent to Drs. Stern
and Manocha for comments, but no response was received;
- records from Dr. Shehata were reviewed, but that Dr.
Shehata did not provide any formal measurements of
cognitive or emotional functioning to substantiate the
presence of a functional impairment;
- the records of Dr. Chauhan
complaints, but no physical
documented;

outlined plaintiff’s
exam findings were

- the records from Nurse Practitioner Beardslee described
plaintiff’s
history
of
anxiety,
depression,
and
fibromyalgia, but no formal measurements of cognitive or
emotional functioning were documented to substantiate the
presence of a functional impairment. In a peer-to-peer
teleconference, Ms. Beardslee indicated that plaintiff
had been improving through a combination of medication
and therapy; that she appeared to be stable; that
plaintiff should have been able to return to work from a
psychiatric standpoint; and that no formal measurements
of cognitive or emotional functioning were administered;
- an MRI on September 15, 2011, revealed mild
degenerative disk disease and facet degenerative changes,
with some foraminal narrowing on the cervical spine in
one area;
-

although

Dr.

Stern

completed
24

a

physical

capacity

evaluation on December 22, 2011, his assistant confirmed
that she was unable to provide any physical examination
findings or additional clinical findings to support
functional impairment, and that no abnormalities
indicating carpal tunnel syndrome were documented on
physical exam;
- although Dr. Manocha completed a chronic pain residual
functional capacity questionnaire on May 2, 2012, no
physical exam findings were documented at plaintiff’s
office visits;
- that a transferrable skills analysis and labor market
survey completed by a vocational specialist identified
occupations within a sedentary exertion level which
plaintiff could perform; and
- although plaintiff had been awarded social security
benefits on May 10, 2011, since that time, Aetna had
received updated medical records, obtained a review of
those records by qualified medical consultants and
obtained the transferable skills and labor market
analyses.
Aetna determined that plaintiff was no longer disabled under
the terms of the Plan.
on

imaging

studies

Aetna concluded that there was no evidence

of

any

central

canal

stenosis

or

neural

foraminal impingement, and no documentation on physical examination
of

any

signs

of

neural

compression

that

have

resulted

in

a

functional deficit that would preclude work at a sedentary physical
demand level.

Aetna noted that while there was some documentation

of decreased range of motion and decrease in pinprick sensation
prior to the appeal period, there was no documentation of any focal
sensory examination findings; abnormal gait; joint deformity or
effusion; any signs of synovitis, such as swelling, redness or
warmth; inflammatory arthritis, lupus or connective tissue disease;
neurologic exam abnormalities involving the upper extremities;
electrodiagnostic studies supporting a diagnosis of carpal tunnel

25

syndrome;

or

formal

measurements

of

cognitive

or

emotional

functioning which would support a functional impairment. AR 300.
Aetna concluded that there was insufficient medical evidence to
support plaintiff’s disability and the November 11, 2013, decision
to terminate LTD benefits was upheld.

AR 301.

VI. Review of Aetna’s Decision
In reviewing Aetna’s decision to deny plaintiff’s application
for continued LTD benefits, this court applies the arbitrary and
capricious standard of review.

Review under the arbitrary and

capricious standard is “extremely deferential.”

McClain v. Eaton

Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir. 2014).
“Review under the arbitrary and capricious standard is the least
demanding form of judicial review of an administrative action; it
requires only an explanation based on substantial evidence that
results from a deliberate and principled reasoning process.”
Morrison, 439 F.3d at 300; see also

Shields v. Reader’s Digest

Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003)(“When it is possible
to offer a reasoned explanation, based on the evidence, for a
particular outcome, that outcome is not arbitrary or capricious.”);
Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.
2000)(if there is a reasonable explanation for the administrator’s
decision denying benefits in light of the plan’s provisions, then
the decision is neither arbitrary nor capricious).

This is true

regardless of whether an equally rational interpretation is offered
by the plan participant. Gismondi v. United Techs. Corp., 408 F.3d
295, 298 (6th Cir. 2005).

“The arbitrary and capricious standard

requires courts to review the plan provisions and the record
evidence

and

‘rational.’”

determine

if

the

administrator’s

decision

was

Schwalm v. Guardian Life Ins. Co. of America, 626
26

F.3d 299, 308 (6th Cir. 2010).

In reviewing the administrator’s

decision, the court’s review is limited to the administrative
record which was before the plan administrator at the time of the
Schwalm, 626 F.3d at 308.

benefit determination.

A district court’s obligation to review the administrative
record “inherently includes some review of the quality and quantity
of the medical evidence and the opinions on both sides of the
issues” to avoid becoming “nothing more than rubber stamps for any
plan administrator’s decision.”

McDonald v. Western-Southern Life

Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003).

However, although

“the standard is not without some teeth, it is not all teeth.”
McClain, 740 F.3d at 1064 (noting that “an ‘extremely deferential
review,’

to

be

true

to

its

purpose,

must

actually

honor

an

‘extreme’ level of ‘deference’ to the administrative decision”).
Plaintiff argues that Aetna should have obtained a doctor to
conduct a physical examination of the plaintiff.
in

the

Plan

language

requires

Aetna

to

However, nothing

obtain

a

physical

examination of the plaintiff to bolster plaintiff’s disability
claim.

Rather, the Plan places the burden on the participant to

furnish proof that the participant is still totally disabled.
809-10.

AR

Further, the records reviewed by the independent medical

examiners were records provided by plaintiff’s treating physicians
who did personally interact with plaintiff.

Four independent

medical examiners qualified in different relevant specialties
thoroughly reviewed the records of plaintiff’s treating physicians.
The Plan’s use of these examiners was not arbitrary and capricious.
Plaintiff argues that the denial of benefits was arbitrary and
capricious because Aetna gave more weight to the opinions of the
reviewing

examiners

than

to

those
27

of

plaintiff’s

treating

physicians.

Generally, a plan may not summarily reject the

opinions of a participant’s treating physician, and must give
reasons for adopting an alternative opinion.

Elliott v. Metro.

Life Ins., 473 F.3d 613, 620 (6th Cir. 2006).

However, a plan

administrator is not required to accord special weight or deference
to the opinions of the plaintiff’s treating physician.

Balmert v.

Reliance Standard Life Ins. Co., 601 F.3d 497, 504 (6th Cir.
2010)(citing Black & Decker Disability Plan v. Nord, 538 U.S. 822,
831 (2003)); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 293
(6th Cir. 2005)(“treating physician rule” does not apply in the
ERISA context).

“Reliance on other physicians is reasonable so

long as the administrator does not totally ignore the treating
physician’s opinions.”
A

plan

Balmert, 601 F.3d at 504.

administrator

can

resolve

conflicts

between

the

opinions of plaintiff’s treating physicians and the opinions of its
own file reviewers if it provides reasons, such as the lack of
objective evidence, for adopting the alternative opinions.
400 F.App‘x at 60.

Curry,

“Generally, when a plan administrator chooses

to rely upon the medical opinion of one doctor over that of another
in determining whether a claimant is entitled to ERISA benefits,
the plan administrator’s decision cannot be said to have been
arbitrary and capricious[.]”

McDonald, 347 F.3d at 169.

A plan

administrator does not act arbitrarily and capriciously in relying
on the conclusions of independent medical examiners while rejecting
the

opinions

administrator

of

the

provides

claimant’s
its

treating

reasons,

reviewers’ opinions, for doing so.

based

physicians
upon

the

if

the

medical

See Curry, 400 F.App’x at 60-

65.
Here, the reviewing physicians did not ignore or overlook
28

medical

records,

nor

did

they

ignore

the

physical

capacity

questionnaires completed by plaintiff’s treating physicians.

In

fact, the physical restrictions and limitations proposed by Dr. Rea
in his report, resulting in his opinion that plaintiff’s physical
demand level would fall within a sedentary (the lowest possible)
level,
imposed

are

not

significantly

different

by

Dr.

Stern.

AR

See

from

405-408,

the

643.

restrictions
Rather,

the

independent medical examiners concluded that although there was
some clinical support for the diagnoses of mild disc degenerative
disease and carpal tunnel syndrome, the records lacked findings
based on physical examination or laboratory and diagnostic tests
sufficient to support physical and mental functional impairments
which would preclude plaintiff from doing sedentary work.

Having

reviewed the administrative record, the court finds that this
conclusion is supported by the evidence. The independent examiners
adequately

explained

their

reasons

for

disagreeing

with

the

conclusion of Dr. Stern that plaintiff was unable to work even at
a sedentary level, and Aetna’s decision to adopt the opinions of
the independent examiners was not arbitrary and capricious.
Contrary to plaintiff’s arguments, the independent examiners
made no credibility determinations regarding plaintiff’s complaints
of pain and symptoms.

Rather, their opinions that plaintiff is

capable of sedentary work were based on the lack of objective
clinical evidence to support the physical and mental capacity
evaluations completed by plaintiff’s treating physicians.

A lack

of objective medical evidence upon which to base a treating
physician’s opinion is sufficient reason for an administrator’s
choice not to credit that opinion.

Boone v. Liberty Life Assur.

Co. of Boston, 161 F.App’x 469, 473 (6th Cir. 2005).
29

“Requiring a

claimant to provide objective medical evidence of disability is not
irrational or unreasonable,” even when such a requirement does not
appear among the plan terms.

Cooper v. Life Ins. Co. of N. Am.,

486 F.3d 157, 166 (6th Cir. 2007).

For example, the Sixth Circuit

has held that it is reasonable for a plan to require objective
evidence of functional limitations resulting from fibromyalgia.
Unit v. Metropolitan Life Ins. Co., 587 F.App’x 860, 862 (6th Cir.
2014).
Plaintiff cites the MRI evidence.

However, the October 2,

2009, lumbar spine MRI showed only a shallow disc protrusion and
degenerative facet arthropathy without significant central canal
stenosis or neural foraminal narrowing.

AR 359-60.

The October

18, 2010, MRI showed minimal disc space narrowing with minimal
circumferential bulge and mild degenerative changes with no canal
stenosis or neural foramen encroachment.

AR 390-391.

2010, MRI of plaintiff’s sacrum was unremarkable.
and thoracic spine MRI’s

A May 28,

AR 389.

Lumber

performed on September 13 and 15, 2011,

revealed mild degenerative disc disease, but no appreciable canal
stenosis and minor scoliosis.

AR 773.

The conclusion of the

independent examiners that these clinical findings do not indicate
functional impairments that would preclude plaintiff from engaging
in sedentary work is further supported by the fact that three of
plaintiff’s treating physicians who reviewed these MRI results
indicated

that

they

furnished

no

plaintiff’s symptoms of intense pain.

clinical

explanation

for

See May 28, 2010, letter of

Dr. Vaughan AR 389; October 11, 2010, letter of Dr. Arce AR 392;
November 7, 2011, letter of Dr. Orzo AR 767.

The independent

examiners also correctly noted that what little was in the record
in the way of physical exam findings also did not support the
30

functional impairment determinations of Drs. Stern and Manocha.
Aetna did not act arbitrarily and capriciously in relying on the
opinions of the independent reviewers that the MRI results did not
provide a basis for the severe physical limitations imposed by Drs.
Stern and Manocha.
Likewise, Aetna did not act arbitrarily and capriciously in
relying on the report of Dr. Schnur.
interview

plaintiff,

he

Although Dr. Schnur did not

thoroughly

reviewed

the

records

of

plaintiff’s psychiatrist, Dr. Shehata, and Ms. Beardslee, a nurse
practitioner who was counseling plaintiff.

Dr. Schnur concluded

that the record lacked sufficient examination findings or formal
measurements of cognitive or emotional functioning to substantiate
the presence of a mental functional impairment.

AR 541.

In

addition, Dr. Schnur spoke with Ms. Beardslee, who verified that no
formal measurements of cognitive or emotional functioning were
administered. AR 540. Ms. Beardslee also indicated that plaintiff
appeared improved and stable and should have been able to return to
work from a psychiatric standpoint.

AR 540.

As indicated above,

Aetna was not required to arrange for Dr. Schnur to conduct a
psychological evaluation of plaintiff; rather, it was plaintiff’s
burden to produce evidence showing that she was disabled.
The court also notes that the offices of Drs. Stern and
Manocha were contacted to determine if they had any additional
documentation regarding clinical tests, physical exam findings, or
reports of formal measurements of cognitive functioning.
552.

AR 532,

Drs. Stern and Manocha were given the opportunity to respond

to the examiners’ reports stating that the work restrictions
proposed by them were not supported by clinical tests prior to
Aetna making its final decision on the appeal, and plaintiff’s
31

counsel was notified that the reports were being sent to them.
Thus,

plaintiff

had

a

fair

opportunity

to

respond

to

the

conclusions of the independent examiners, but failed to do so.
The record indicates that plaintiff has been awarded social
security disability benefits.

However, an ERISA plan is not bound

by the SSA’s decision that a participant was disabled.

Combs v.

Reliance Standard Life Ins. Co., 511 F.App’x 468, 472 (6th Cir.
2013);

Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 (6th Cir.

2005).

A plan administrator’s failure to address the finding of

the SSA can render the denial of further LTD benefits arbitrary and
capricious.

Calvert, 409 F.3d at 295.

However, Aetna adequately

explained why it was not giving significant weight to the SSA’s
award of social security disability benefits, and did not act
arbitrarily and capriciously in arriving at a different decision
under the terms of the Plan.

See O’Bryan v. Consol Energy, Inc.,

477 F.App’x 306, 308 (6th Cir. 2012)(plaintiff did not demonstrate
that plan administrators acted arbitrarily and capricious where the
explained how they distinguished the decision to award social
security benefits).
Plaintiff also argues that Aetna acted arbitrarily in relying
on the transferable skills and labor market analyses provided by
Coventry.

In particular, plaintiff notes that Coventry used a

computer program to assist it in identifying sedentary occupations,
and

that

adjustments

in

the

program

were

made

to

reflect

plaintiff’s restrictions by reducing stooping, crawling, crouching,
squatting, and climbing to never and adding the need to take short
breaks from sitting and standing, but that the program could not be
adjusted for walking and activities involving hands. AR 630, 638.
Plaintiff’s restrictions included walking for up to twenty minutes
32

at a time, not to exceed a total of two hours in a workday, and
fingering, feeling or handling for up to thirty minutes at a time,
followed by five minute periods of rest. AR 629-630. However, the
fact that these restrictions could not be added to the computer
program does not mean that they were not considered by Coventry in
identifying

suitable

sedentary

jobs.

For

example,

in

its

discussion of the engine dispatcher job, Coventry noted that
walking is significantly less important.

AR 632.

The discussion

of the tablet tester job notes that in some industries, inspectors
sit during most of their shift.
identified

describe

AR 634.

requirements

None of the positions

which

plaintiff’s fingering restrictions.

would

conflict

with

Aetna determined that the

occupations identified by Coventry “would not require [plaintiff]
to perform any activities that [plaintiff is] medically restricted
from performing.”

AR 492-93.

In any event, the Plan terms do not require Aetna to identify
a

particular

position

that

a

claimant

might

fill

before

it

determines that the claimant is not disabled, or that such a
position existed in a given geographic area.
skills

The transferable

and labor market analyses identified certain jobs which

plaintiff could perform at the sedentary work level, taking the
restrictions posed by Dr. Rea into account.

The reports specified

that occupations listed were not all of the occupations plaintiff
could perform, but were a sample of the occupations identified as
suitable given plaintiff’s limitations.
Plan

does

not

require

the

AR 630, 638.

identification

of

a

Because the

specific

job

currently available within plaintiff’s geographical area, Aetna’s
failure

to

capricious,

do

so

where

does
it

not

render

obtained
33

its

decision

through

proper

arbitrary

or

sources

a

determination
sedentary

that

jobs,

plaintiff

and

the

could

specific

perform
jobs

a

broad

listed

illustrations of what plaintiff could perform.

range

were

of

merely

See Curry, 400

F.App’x at 70.
VII. Conclusion
The court concludes that Aetna did not act arbitrarily and
capriciously in determining that the plaintiff was no longer
entitled to disability benefits under the Plan. In accordance with
the foregoing, plaintiff’s motion for judgment on the pleadings
(Doc. 43) is denied.

Defendants’ motion for judgment on the

administrative record (Doc. 45) is granted.

Date: March 23, 2015

s/James L. Graham
James L. Graham
United States District Judge

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