Liebel v. Aetna Life Insurance Company

Filing 26

MEMORANDUM OPINION and ORDER. Signed by Honorable Robin J. Cauthron on 1/31/14. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHRISTY M. LIEBEL,
Plaintiff,
vs.
AETNA LIFE INSURANCE
COMPANY,
Defendant.

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Case No. CIV-12-1315-C

MEMORANDUM OPINION AND ORDER
This case arises out of a dispute over the termination of Plaintiff Christy M. Liebel’s
long-term disability benefits, provided pursuant to a Benefit Plan (“Plan”) established by
Marriott International, Inc., Plaintiff’s employer, and issued and administered by Defendant
Aetna Insurance Company. Plaintiff asks the Court to reverse the decision of Defendant’s
Plan administrator and reinstate Plaintiff’s long-term disability benefits. The Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. (“ERISA”),
governs Plaintiff’s claim.
I. BACKGROUND
Plaintiff has a long history of back problems, from being diagnosed with scoliosis as
a teenager to having multiple corrective surgeries as an adult. Two subsequent car accidents
further exacerbated her back condition. Following another back surgery on March 30, 2009,
Plaintiff requested and Defendant approved short-term disability benefits for April 6, 2009,
through October 4, 2009. On August 11, 2009, Defendant approved Plaintiff for long-term
disability benefits, finding Plaintiff totally disabled from her own occupation as a Lead

Referral Manager and informing Plaintiff she was eligible to receive 24 months of benefits,
beginning September 28, 2009, and continuing as long as she remained disabled from her
own occupation during that period. Defendant explained that after it paid the first 24 months
of benefits, Plaintiff would only be considered disabled and eligible to continue receiving
benefits if she was “unable to work at any reasonable occupation,” not just her own.
(Admin. Record (“A.R.”), Dkt. No. 19-6, at 1161.)
Approximately one year later, the Social Security Administration concluded Plaintiff
became disabled on March 27, 2009, and eligible for disability benefits five months later.
Accordingly, the Social Security Administration granted Plaintiff a monthly benefit from
August 2010 forward and a lump sum to cover benefits that should have been paid from
September 2009 through July 2010. Under the terms of the Plan, Plaintiff’s Social Security
benefits reduced the monthly long-term disability benefit paid to Plaintiff by Defendant.
In February 2011, Defendant notified Plaintiff in a letter that the applicable test of
disability would change in September 2011, after the first 24 months of benefits had been
paid. The letter reminded Plaintiff that instead of examining whether she could perform the
material duties of her own occupation, Defendant would analyze whether her injuries
prevented her from working at any reasonable occupation. Defendant informed Plaintiff that
it would be reviewing her case to determine if Plaintiff would remain eligible for benefits.

1

For the sake of clarity, ECF page numbers are used when citing to the Administrative

Record.
2

As part of Defendant’s investigation, Defendant requested medical records for
Plaintiff from three of Plaintiff’s physicians: Dr. Richard Hostin, Jr., Dr. Douglas Stafford,
and Dr. Christine Johnson. Dr. Johnson also submitted an Attending Physician Statement
dated April 28, 2011, stating that Plaintiff would never be able to return to work. Using the
information provided by Plaintiff’s physicians, Defendant conducted a clinical review on
July 13, 2011. Defendant concluded that Plaintiff might have a greater functional capacity
than indicated by her physicians, given her ability to travel approximately 200 miles one-way
to see Dr. Johnson. The review concluded Plaintiff’s records did not support an inability to
perform any sustained sedentary work. Following the receipt of additional information from
Dr. Johnson on June 22, 2011, in which Dr. Johnson again asserted Plaintiff could not return
to work, Defendant referred Plaintiff’s file for a second clinical review. The second clinical
review again pointed to inconsistencies in Plaintiff’s records, particularly with respect to
Plaintiff’s daily activities of walking her dog, driving, and grocery shopping. As a result, the
second review likewise concluded that Plaintiff’s records failed to support a total restriction
on sedentary work.
Because Defendant’s clinical reviews conflicted with Plaintiff’s Attending Physician
Statement from Dr. Johnson, Defendant hired Dr. Swotinsky, an occupational medicine
specialist, to review Plaintiff’s file and conduct a peer-to-peer consultation with Dr. Johnson.
Dr. Swotinsky’s August 2011 review consisted of records from Dr. Hostin, Dr. Johnson,
Plaintiff’s pain management specialist, a CT, and an MRI. After reviewing Plaintiff’s
records and reported daily activities, consulting with Dr. Johnson, and requesting but failing
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to hear back from Dr. Hostin, Dr. Swotinsky concluded that the evidence did not support a
restriction on sedentary work. Specifically, Dr. Swotinsky noted that Plaintiff’s activity level
was inconsistent with total disability and that because Dr. Johnson relied on Plaintiff’s
subjective self-reports of pain without objective medical evidence, her opinion of total
disability was not persuasive.
The difference between Dr. Swotinsky’s and Dr. Johnson’s opinions on Plaintiff’s
level of disability led Defendant to refer Plaintiff for a Functional Capacity Evaluation
(“FCE”), which took place on September 8, 2011, with a physical therapist. The therapist
reported that “[a] true physical demand category was unable to be determined due to client
refusal to attempt activities, inconsistent effort and self-limiting behavior.” (A.R., Dkt. No.
19-5, at 17.) For example, the therapist stated that Plaintiff performed inconsistently on
many of the tests, her physiological responses—her heart and respiratory rates—did not
support her subjective complaints of pain, and she claimed she was unable to reach past knee
level without balance support during the formal exam but was later observed crouching and
picking up a drink from the floor without any compensating balance movements.
The following month, on October 8, 2011, a registered nurse conducted a home
assessment of Plaintiff at Defendant’s request. Plaintiff answered all of the nurse’s questions
but spent most of the interview in a recliner and then completed it while lying in bed. The
home assessment form states that Plaintiff reported having a walker and wheelchair, although
the nurse did not see them and Plaintiff later denied owning any assistive devices. Despite
being able to walk for 27 minutes at her FCE one month earlier, Plaintiff reported being able
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to walk only a few feet, and that very slowly and stiffly. The registered nurse recommended
lumbar and cervical surgery to decrease Plaintiff’s pain level in order to assist Plaintiff in
returning to work.
After analyzing the reports of Plaintiff’s FCE and home assessment, Defendant hired
Dr. Carl, a specialist in physical medicine and rehabilitation with a sub-specialty in pain
management, to perform an Independent Medical Evaluation (“IME”). In addition to the
physical examination of Plaintiff, as part of the IME Dr. Carl also reviewed Dr. Swotinsky’s
physician review, correspondence with Dr. Johnson, the FCE, the home assessment, a note
by Dr. Hostin, and summaries of Plaintiff’s medical history and medications, prepared by
Plaintiff. Dr. Carl concluded that Plaintiff was “physically capable of performing sedentary
level work with occasional lifting of 1-10 pounds, negligible frequent lifting, and negligible
constant lifting throughout the workday” with a further restriction of no crawling, bending,
or twisting. (A.R., Dkt. No. 19-5, at 53.) Although Dr. Carl acknowledged that Plaintiff “is
physically capable of operating a motor vehicle,” he opined that Plaintiff should work in a
home setting because of the narcotics Plaintiff uses to treat her chronic pain. Additionally,
Dr. Carl worried that Plaintiff’s narcotic use might have impaired her “higher executive
cognitive functioning.” (Id.)
Due to Dr. Carl’s concerns about Plaintiff’s narcotic use, Defendant had another
physician, Dr. VanderPutten, conduct a peer-to-peer consultation with Dr. Johnson by
telephone on January 4, 2012. Dr. VanderPutten reported that “Dr. Johnson does not believe
that medications, per the concern of the IME, are an issue” and that Dr. Johnson “believes
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it would be beneficial in some ways for [Plaintiff] to work however it has been difficult to
find employment that would accommodate sedentary capacity with ‘work hardening’ to
address fatigue issues.” (A.R., Dkt. No. 19-8, at 85.) After reviewing Dr. VanderPutten’s
report, Dr. Johnson did not deny that she had told Dr. VanderPutten that she did not believe
Plaintiff’s narcotic use would be an issue, but did give a more detailed discussion of her
proposed trial of return to work.

According to Dr. Johnson, Plaintiff would need

“supervision and assistance from a vocational counselor” and “[t]he return to work would
be performed in a gradual fashion, specifically . . . one to two hours daily at the initiation.”
(A.R., Dkt. No. 19-8, at 88.) Dr. Johnson did not believe Plaintiff could return to sedentary
work on a full-time basis successfully without a vocational counselor and a gradual work
hardening program.
Later that month, Defendant referred Plaintiff’s claim for an occupational assessment.
Defendant conducted the assessment February 6, 2012. Based on Plaintiff’s occupational
skills, prior work history, and a sedentary level work capacity, Defendant concluded Plaintiff
“possesses numerous transferable skills to sedentary occupations . . . in both Oklahoma and
Texas that would likely meet reasonable wage of $17.89 per hour,” or 60% of Plaintiff’s predisability salary. (A.R., Dkt. No. 19-2, at 191-193.) Defendant then terminated Plaintiff’s
long-term disability benefits on February 7, 2012, after awarding Plaintiff a lump-sum
benefit payment, to assist in a gradual return to work. Defendant allowed Plaintiff to appeal
its decision but, after further review, upheld its termination on July 3, 2012. Plaintiff
subsequently filed this lawsuit against Defendant.
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II. STANDARD OF REVIEW
Unless an insurance plan provides otherwise, the Court “‘review[s] a denial of plan
benefits “under a de novo standard.”’” Foster v. PPG Indus., Inc., 693 F.3d 1226, 1231 (10th
Cir. 2012) (quoting Metro Life. Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008) (internal
citations omitted)). When a “plan confers upon the administrator discretionary authority to
determine eligibility for benefits or to interpret plan terms, ‘a deferential standard of review
is appropriate.’” Id. (quoting Glenn, 554 U.S. at 111). However, if the administrator “act[s]
in a dual role, i.e., both evaluating and paying claims,” the administrator operates under “a
conflict of interest.” Id. at 1232. In dual-role conflict cases, the Court uses “a ‘combinationof-factors method of review’ that allows judges to ‘tak[e] account of several different, often
case-specific, factors, reaching a result by weighing all together.’” Holcomb v. Unum Life
Ins. Co. of Am., 578 F.3d 1187, 1192 (2009) (quoting Glenn, 554 U.S. at 117). The Court
“‘weigh[s] the conflict of interest as a factor in [its] abuse of discretion analysis,
and . . . weigh[s] [that factor] more or less heavily depending on the seriousness of the
conflict.’” Foster, 693 F.3d at 1232 (quoting Murphy v. Deloitte & Touche Grp. Ins. Plan,
619 F.3d 1151, 1157 n.1 (10th Cir. 2010)). “‘[W]here circumstances suggest a higher
likelihood that [the conflict] affected the benefits decision,’” the Court gives the conflict
factor more importance. Holcomb, 578 F.3d at 1193 (quoting Glenn, 554 U.S. at 117).
Conversely, the conflict factor “‘should prove less important (perhaps to the vanishing point)
where the administrator has taken active steps to reduce potential bias and to promote
accuracy.’” Id. (quoting Glenn, at 117). In conducting its review, the Court is “‘limited to
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the administrative record—the materials compiled by the administrator in the course of
making his decision.’” Foster, 693 F.3d at 1231 (quoting Holcomb, 578 F.3d at 1192)).
Here, the Plan indisputably gives Defendant “discretionary authority to determine
whether and to what extent eligible employees and beneficiaries are entitled to benefits and
to construe any disputed or doubtful terms under [the Plan].” (A.R., Dkt. No. 19-9, at 63.)
Thus, the Court analyzes Defendant’s termination of benefits under the deferential abuse of
discretion or arbitrary-and-capricious standard. See Foster, 693 F.3d at 1233. Because
Defendant operates in a dual role, both evaluating and paying claims, the Court evaluates
whether Defendant abused its discretion by applying the combination-of-factor analysis set
out in Glenn and adopted by the Tenth Circuit in Holcomb. However, due to Defendant’s
efforts to reduce potential bias—such as “hiring [multiple] independent physicians . . . [rather
than] rely[ing] solely on the evaluations and medical opinions of its own on-site physicians
and nurses,”2 “diligently endeavor[ing] to discover the nature of [Plaintiff’s] ailments,”3 and
continuing to pay benefits to Plaintiff during the course of its investigation, “even though the

2

For example, Defendant hired Dr. Swotinsky, Dr. Carl, and Dr. VanderPutten to
independently review Plaintiff’s file, examine Plaintiff in person, and conduct peer-to-peer
consultations with Plaintiff’s treating physicians.
3

Like the defendant in Holcomb, Defendant conducted a lengthy investigation into
Plaintiff’s claim. Defendant’s efforts included two clinical reviews, an independent review,
peer-to-peer consultations, an FCE, a home assessment, an IME, and an occupational
assessment. Defendant also frequently requested information from Plaintiff’s treating physicians
and allowed Plaintiff to submit additional information during her appeal.
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twenty-four month period . . . had expired”4— the Court gives little weight to the dual-role
conflict-of-interest factor. Holcomb, 578 F.3d at 1193.
III. ANALYSIS
Applying the appropriate standard of review, the Court concludes Defendant did not
abuse its discretion in deciding to terminate Plaintiff’s long-term disability benefits. The
Administrative Record contains substantial evidence supporting Defendant’s decision. First,
as described supra, Defendant gathered significant medical evidence and considered not only
records provided by Plaintiff’s treating physicians, but also examinations and reviews
conducted by independent experts. Although Plaintiff claims Defendant’s final conclusion
was contrary to the recommendation of Plaintiff’s primary treating physician, Dr. Johnson,
nothing in ERISA “suggests that plan administrators must accord special deference to the
opinions of treating physicians.

Nor does [ERISA] impose a heightened burden of

explanation on administrators when they reject a treating physician’s opinion.” Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003). Moreover, Dr. Johnson’s later
correspondence with Defendant did not completely rule out Plaintiff returning to work.
Dr. Johnson informed Dr. VanderPutten and Defendant that she believed it might even be
beneficial for Plaintiff to return to work, provided certain conditions were met.

4

Defendant continued to pay benefits after the initial 24-month period expired in
September 2011. Plaintiff received benefits through February 2012, when Defendant terminated
further benefits and awarded Plaintiff a lump-sum to permit her to return to work gradually.
9

Additionally, unlike in Glenn, where the defendant “failed to provide its independent
vocational and medical experts with all of the relevant evidence,”5 (Glenn, 554 U.S. at 118)
Defendant not only gave its independent experts copies of Dr. Johnson’s opinions, among
other records, it also directed those experts to communicate directly with Dr. Johnson during
peer-to-peer consultations. And, when Defendant received conflicting evidence, it sought
additional consultation, examinations, and review. Although an administrator may not
“emphasize[] a certain medical report that favor[s] a denial of benefits” while
“deemphasiz[ing] certain other reports that suggest[] a contrary conclusion,” Glenn, 554 U.S.
at 118, that does not appear to be the case here. Instead, Defendant relied on multiple reports
and pieces of evidence that Plaintiff could return to work, with certain restrictions, including
recommendations by Dr. Swotinsky, Dr. Carl, and Dr. Johnson, and Defendant’s credibility
determination, based on inconsistencies noted during Plaintiff’s FCE and home assessment.
Likewise, the fact that Defendant’s ultimate determination that Plaintiff is capable of
performing sedentary work with certain limitations is contrary to the Social Security
Administration’s finding of total disability is not conclusive. Because Plaintiff’s award of
Social Security benefits was financially advantageous to Defendant, any inconsistency

5

Plaintiff argues that Defendant failed to provide its independent experts with all of the
relevant evidence because Defendant did not direct those physicians to consider Plaintiff’s
fibromyalgia. However, the Administrative Record does not contain a diagnosis of fibromyalgia
and thus any reviewing physicians could not have considered that condition as a factor in her
ability to return to work. Defendant’s reviewing physicians and specialists properly considered
the condition of Plaintiff’s back and her narcotic use, conditions which appeared in Plaintiff’s
files. In determining whether the Plan administrator made an arbitrary decision, the Court is
limited to the Administrative Record. Foster, 693 F.3d at 1231.
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between its assistance in helping Plaintiff receive government disability benefits and its
termination of its own long-term disability benefits weighs in favor of Plaintiff. See id.
However, other considerations mitigate that inconsistency in this case. Significantly, the
Social Security Administration’s disability determination occurred in August 2010, a year
and a half before Defendant concluded Plaintiff could return to sedentary work.
Furthermore, the test for disability set out in the Plan is different than a determination of
disability under the Social Security criteria.6
Finally, Plaintiff asserts that even if she was capable of returning to sedentary work,
the Court must reject the Plan administrator’s decision as arbitrary because Defendant has
not demonstrated that Plaintiff is employable at 80% of her prior earnings. This argument
is without support. After the first 24 months of benefits, Defendant no longer had to find that
Plaintiff was employable at 80% of her prior earnings. Instead, the Plan requires Plaintiff
to be “unable to work at any reasonable occupation” because of her disability. (A.R., Dkt.
No. 19-9, at 8.) The Plan later defines “reasonable occupation” as “any gainful activity” for
which Plaintiff “[is], or may reasonable [sic] become, fitted by education, training, or
experience,” and “[w]hich results in, or can be expected to result in, an income of more than
60% of [Plaintiff’s] adjusted predisability earnings.” (A.R., Dkt. No. 19-9, at 28.) Thus,

6

For instance, the deference given to treating physicians in disability determinations
made under the Social Security Act does not govern private benefit plans under ERISA. Black
& Decker, 538 U.S. at 829-833.
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Defendant’s use of 60% of Plaintiff’s adjusted predisability earnings at its occupational
assessment was correct under the terms of the Plan.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendant’s denial of Plaintiff’s
claim for continuing long-term disability benefits did not violate ERISA, as Defendant’s
decision was neither arbitrary nor capricious and is supported by substantial evidence in the
Administrative Record. Accordingly, judgment shall enter for Defendant and against
Plaintiff.
IT IS SO ORDERED this 31st day of January, 2014.

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