Murphy v. Aetna Life Insurance Company
MEMORANDUM AND ORDER adopting 24 Report and Recommendations in its entirety; granting 14 Defendant's Motion for Summary Judgment; denying Plaintiff's 16 Motion for Summary Judgment. So Ordered by Senior Judge Mary M. Lisi on 1/24/2017. (Feeley, Susan) Modified on 1/24/2017 (Feeley, Susan).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
C.A. No. 15-545-ML
AETNA INSURANCE COMPANY,
MEMORANDUM AND ORDER
challenges the termination of long term disability (“LTD”) benefits
under an employee benefit welfare plan.
Both Murphy and the
defendant, Aetna Insurance Company (“Aetna”), have filed crossmotions for summary judgment.
The matter before the Court is
recommends that Murphy’s motion be denied and Aetna’s motion be
granted (ECF No. 24). Murphy filed a timely objection to the R&R
(ECF No. 25), to which Aetna filed a response (ECF No. 26). The
Court has reviewed the R&R, the objection thereto, the parties’
memoranda in support of their respective motions for summary
judgment and those portions of the administrative record (“AR”) on
which the parties rely. Having done so, the Court adopts the R&R in
I. Summary of Facts1
Assistant from June 2000 until April 27, 2006, when she began a
medical leave of absence due to acute liver failure related to
alcoholic hepatitis. (PSUF ¶1, DSUF ¶¶1-3, Compl. ¶9).
As part of her employment, Murphy was eligible for long-term
disability (“LTD”) benefits under a group policy (the “Policy”)
For the purposes of Section 503 of Title 1 of the
Employee Retirement Income Security Act of 1974, as
amended (ERISA), Aetna is a fiduciary with complete
authority to review all denied claims for benefits under
this policy. This includes, but is not limited to, the
denial of certification of the medical necessity of
hospital or medical treatment. In exercising such
fiduciary responsibility Aetna shall have discretionary
determine whether and to what extent employees and
beneficiaries are entitled to benefits; and
construe any disputed or doubtful terms of this
Aetna shall be deemed to have properly exercised such
authority unless Aetna abuses its discretion by acting
arbitrarily and capriciously. (DSUF ¶11, (Administrative
Record, AR 00043).
Under the Policy, Murphy received LTD benefits for the first
The facts are taken from the parties’ respective statements of
undisputed facts (“PSUF” and “DSUF”) (ECF Nos. 15 and 17), to the
extent they are not disputed. Relevant disagreements are noted.
two years after a “waiting period”, because she was unable to work
at her own job at FM Global. (DSUF ¶ 5, 6). Specifically, the
Policy provision required that Murphy not be “able, solely because
of injury or disease, to perform the material duties of [her] own
occupation.” (DSUF ¶12). After that two-year period, Murphy’s
eligibility for receiving LTD benefits depended on a determination
that she was unable to work at “any reasonable occupation.”
¶¶7, 12). “Reasonable Occupation” was defined in the Policy as “any
gainful activity for which you are, or may reasonably become,
fitted by education, training, or experience. It does not include
work under an Approved Rehabilitation Program.”(DSF ¶10, AR 0003).
hospitalization and abstinence from alcohol, she still suffers from
cirrhosis, renal insufficiency, pancreatitis, and liver disease.
(DSUF ¶14). Nevertheless, Murphy did work part-time (15 hours per
week) from October 1, 2008 to May 8, 2009, while she was collecting
LTD benefits. (DSUF ¶15). During that time, Murphy’s primary
physician was internist Keith Callahan, M.D. (“Dr. Callahan”);
while Raymond Mis, D.O. was her gastroenterologist (“Dr. Mis”).
(DSUF ¶¶16, 17).
In October 2009, Murphy’s application for Social Security
Benefits was denied; she took no appeal in court. According to the
Complaint, although Aetna notified Murphy at that time that her
decision and her benefits were reinstated. Compl. ¶20.
The Administrative Record reflects that Murphy was regularly
seen by Dr. Mis and that he reported his findings and conclusions
to Dr. Callahan. DSUF ¶22. In a March 10, 2011 letter, Dr. Mis
noted, inter alia, that Murphy’s cirrhosis and renal insufficiency
“remained quite active going swimming on a daily basis.” DSUF ¶ 23,
AR 000807-808. Subsequent letters by Dr. Mis reflect that Murphy,
who had undergone surgery for a complete hip replacement in 2011,
continued to complain of fatigue, but that she continued to swim
daily and tried to get motivated to do aerobic exercise at the gym.
DSUF ¶24, AR 815, 817.
According to a letter dated May 15, 2012, Murphy, whose chief
complaint was fatigue at that time, remained “quiet active and has
actually asked if she can return to work.” Murphy also reported
that she exercised almost six days a week; that she stayed quite
active with her son and her pet; and that she was bored. DSUF ¶25,
AR 00819. Further letters from Dr. Mis for the period from November
20, 2012 through December 3, 2013 state that Murphy continued to
exercise; that she underwent shoulder replacement surgery; that she
continued to complain of fatigue (although she apparently did not
follow up with Dr. Callahan to address that issue); and that she
became a foster mother. DSUF ¶¶28-33, AR 000821-831.
Murphy’s case was reviewed by Aetna staff clinical consultant
Kimberly Harris, R.N. (“Nurse Harris”) on January 25, 2013, after
which she recommended that Aetna Senior LTD Claims Analyst Richard
Collins (“Collins”) obtain additional records from Dr. Mis to
evaluate Murphy’s functional capacity. DSUF ¶35, AR 00239-45).
After receiving additional information from Dr. Mis, Nurse Harris
noted that Dr. Mis opined that Murphy was unable to work but that
“[m]edical information does not support that [Murphy] would be
precluded from frequent sitting, occasionally standing/walking and
lifting up to 10 lbs. And her activities appear to be beyond these
activities.” DSUF 38, AR 000264-67). The record also reflects that
Harris attempted to call Dr. Mis’s office twice and that, although
Dr. Mis subsequently left a message that he would call back, he did
not do so.
DSUF ¶39-41, AR 000267-270.
A March 6, 2014 letter from Dr. Mis to Dr. Callahan notes that
Murphy continues to complain of fatigue “to the point that she has
not been able to work out as regularly as she has” and that,
although she volunteers two days a week for only a couple of hours,
she has to take a nap afterwards. DSUF ¶43, AR 00834-35. The letter
also notes that Murphy’s cirrhosis was “clinically stable;” her
suspected that Murphy’s reported fatigue was related to cirrhosis,
renal insufficiency, and chronic arthritis pain, no changes were
made to Murphy’s treatment plan. DSUF ¶44, AR 00835.
On May 21, 2014, Collins sent a five-page fax to Dr. Mis,
explaining that Aetna was reviewing Murphy’s functionality “to
establish and confirm if she is totally disabled from any and all
gainful occupations and/or if she would be a good vocational
rehabilitation candidate (job retraining).”
DSUF 46, AR 00521-23,
00900-01. Collin’s request further noted that Murphy had indicated
that she attended a gym for exercising, did volunteer work, and
acted as a foster parent, and that “[b]ased on this information, it
appears that she does have capacity to do some type of work.” AR
On the same day, Collins requested by letter to Murphy that
she have Dr. Mis provide a response to Aetna’s “narrative request
regarding your functional capacity” for “continued review of your
[LTD] claim.” DSUF ¶45, AR 00524. In response to Collin’s request,
Dr. Mis returned the provided form and under “level of capacity she
has on a full time basis,” he checked the option for “S-Sedentary
work.” That category was further described as involving “sitting
most of the time, but may involve walking or standing for brief
periods of time,” as well as exerting up to 10 pounds of force
occasionally and/or a negligible amount of force frequently to
lift, carry, push, pull, or otherwise move objects. DSUF ¶47, AR
00900. Dr. Mis noted that Murphy had “[n]o specific restrictions
except for what she can tolerate” and that she suffered from
activity.” DSUF ¶47, AR 00901.
Murphy’s file was then referred for a Transferable Skills
analysis (“TSA”), evaluating, inter alia, Murphy’s work experience,
education and training, functional capacities/restrictions, and her
information, Senior Vocational Field Case Manager Donna Kisslinger
Abram concluded that Murphy’s background was compatible with four
identified jobs in the open labor market at her reasonable wage
level in the local market. AR 00575.
Aetna terminated Murphy’s disability claim by letter dated
July 2, 2014, based on the medical records provided by Dr. Mis and
his advice regarding Murphy’s current level of functional capacity
and in consideration of the result of the TSA analysis. AR 00904.
Aetna advised Murphy that if she wished to appeal the decision,
Aetna would review additional materials, including a narrative
report detailing her specific physical and/or mental limitations
placed on her by her doctor, diagnostic studies, and any other
information specific to her condition or that would assist in the
review of her claim. DSUF ¶ 60, AR 00526.
Murphy appealed Aetna’s decision to terminate her LTD benefits
by letter dated July 14, 2014 (AR 00908-09), enclosing a July 3,
2014 letter from Dr. Mis (AR 00857), in which he opined that it
“would be hard” for Murphy to “perform repetitive tasks and sustain
[a] part-time or even full-time employment schedule.” Although he
stated that Murphy “cannot sustain a steady work environment,” he
acknowledged that he had advised her “to exercise and try to
volunteer some of her time to improve the quality of her life.”
DSUF ¶¶61-63, AR 000857. It is undisputed, and Aetna’s internal
reviewer Nurse Dunham noted, that neither Murphy nor Dr. Mis
included “physical examination findings or diagnostic test results
to substantiate a functional impairment.” DSUF ¶64, AR 291. Nurse
Dunham acknowledged that Murphy “may have some restrictions due to
orthopedic conditions and past surgeries,” but concluded that the
provided information did not change Aetna’s prior determination.
DSUF ¶64, AR 00294.
An independent peer review of Murphy’s records by Manoj K.
Mehta, M.D. — which included a teleconference with Dr. Mis —
resulted in the same conclusion: that Murphy was not “impaired” in
order to qualify for LTD benefits. AR 00554-00557. Aetna next
obtained a Functional Capacity Evaluation (“FCE”), which concluded
that Murphy “demonstrated physical abilities at the SEDENTARY
physical demand level.” DSUF ¶69, AR 00581. The FCE report also
noted that “due to consistent subjective reporting of increasing
overall total body pain and fatigue, obtaining consistent objective
As noted in Murphy’s objection to the DSUF, Aetna’s FCE
summary, as is in the nature of summaries, is not a complete
version of the FCE report and in one instance, the report referred
erroneously to Ms. Field, rather than Ms. Murphy. Murphy takes no
specific objection to the remainder of the report. Pltf.’s Response
Subsequently, Aetna Senior Appeal Specialist Susan Dorman concluded
that Murphy’s disability claim was not supported, noting that
“[t]here was a lack of medical evidence to support impairment from
any reasonable (sedentary) occupation. File lack [sic] abnormal
examination findings, or diagnostics to substantiate a specific
functional deficit.” DSUF ¶73, AR 00322.
By letter dated December 23, 2014, Aetna informed Murphy that
after reviewing the information received, it was upholding its
decision to terminate her LTD benefits, effective July 2, 2014.
DSUF ¶74, AR 00544. Aetna’s letter provides an explanation of what
it means to be totally disabled under the Policy, as well as the
definition of a “reasonable occupation.” AR 000544. The letter
further summarizes the medical information in Murphy’s claim and
appeal file, as well as the result of the FCE and the vocational
assessment. AR 000544-46. Aetna concludes that “we find no medical
evidence of any physical deficits or impairment” and notes that,
based on its review, “we find that the original decision to
terminate your LTD benefits was correct, and has been upheld on
II. Procedural History
Murphy filed a complaint in this Court against Aetna on
December 22, 2015 (ECF No. 1). The parties submitted cross-motions
for summary judgment on August 15, 2016 (ECF Nos. 14, 16). After
to DSUF ¶71.
Magistrate Judge Sullivan issued an R&R on November 22, 2016 (ECF
No. 24), Murphy filed an objection on December 9, 2016 (ECF No.
25), to which Aetna responded with a reply on December 22, 2016
(ECF No. 26).
Murphy raises four specific objections to the R&R. First, she
suggests that Aetna’s denial of the continuation of LTD benefits
was “largely based upon a Functional Capacity Evaluation (‘FCE’)
performed at the behest of Aetna.” Pltf.’s Obj. at 3 (ECF No. 25).
Further, Murphy argues that (1) the R&R “overlooked manifest
deficiencies with that FCE that destroyed its evidentiary value,”
and (2) the R&R failed to apply established case law requiring the
reviewer to examine the record as a whole and to refrain from
mischaracterizing the record. Id. Finally, Murphy maintains that
she was denied the opportunity for a full and fair review at the
internal administrative level “in that Aetna failed to adequately
inform her of the type of evidence necessary to perfect her
Standard of Review
administrative record before the plan administrator and is an
ultimate conclusion as to disability to be drawn from the facts,
summary judgment is simply a vehicle for deciding the issue.”
Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st
Cir.2005)). In such a case,
the non-moving party is not entitled
to the usual inferences in its favor. Id. Moreover, when an ERISA
plan gives an administrator discretionary authority to determine
eligibility for benefits or construe the plan's terms, the district
‘arbitrary, capricious, or an abuse of discretion.’”• D & H Therapy
Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 34 (1st
Cir.2011) (quoting Gannon v. Metro. Life Ins. Co., 360 F.3d 211,
213 (1st Cir.2004)). Accordingly, this Court does not weigh the
proof independently, rather, it “must ask whether the aggregate
evidence, viewed in the light most favorable to the non-moving
administrator acted arbitrarily in denying the claim for benefits.”
Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002). Murphy, as
the party claiming entitlement to the continuation of LTD benefits,
bears the burden of showing that she remains disabled within the
meaning of the Policy. Orndorf v. Paul Revere Life Ins. Co., 404
F.3d at 518-519.
determination of a dispositive pretrial motion, the Court must
“make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). The Court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” Id.
The record, when viewed in its entirety, reveals that Murphy
has made a remarkable, almost unexpected recovery after initially
being hospitalized for acute liver failure and being considered for
a liver transplant. Murphy still suffers from what appear to be
pancreatitis and liver disease; she also underwent hip and shoulder
replacement surgeries due to her osteoarthritis. Notwithstanding
these serious health issues, Murphy’s condition appears to have
stabilized sufficiently for her to engage in a number of normal
activities, such as parenting and engaging in regular exercise. At
some point during her recovery, Murphy reported that she was quite
active and that, although she still felt fatigued, she was bored
and considered going back to work.
While some of Dr. Mis’s periodic reports acknowledge Murphy’s
report of suffering from fatigue, other reports make no mention of
it and there is nothing in the record to suggest that Murphy or her
physicians attempted to ascertain the exact cause of her fatigue.
Rather, Dr. Mis generally recommended that Murphy listen to her
body and rest after being active.
After Aetna requested additional information from Murphy and
her physician regarding her functional capacity in May 2014, Dr.
Mis indicated that Murphy was able to perform sedentary work on a
full time basis, without specifying any restrictions, “except for
what she can tolerate.” AR 901. In a subsequent report, Dr. Mis
notes that Murphy, although complaining from fatigue, has no new
medical or surgical issues. The remainder of his report generally
reflects that Murphy’s health, while impacted by her previous
alcoholism and related issues, has continued to remain stable and
that “she remains single, her son continues to live with her, she
smokes a pack of cigarettes per day, denies alcohol consumption,
and she is on disability and now likely due to the severe fatigue.”
AR 837. Notably absent from this report is any indication that Dr.
Mis has changed his opinion as to whether Murphy has the capacity
to perform sedentary work as he previously indicated to Aetna.
administrative appeal was largely based on the Functional Capacity
Evaluation (“FCA”) requested by Aetna finds no substantiation in
the record, nor does the FCA contain manifest deficiencies that
“destroyed its evidentiary value.” Rather, the FCA was only one
element in a rather extensive record and, as such, it was generally
consistent with prior observations by Murphy’s physician, which
reflected, inter alia, an improvement in her overall health and in
Murphy’s reported activities, while acknowledging consistent selfreporting of fatigue. The FCA, administered after consultation with
Dr. Mis, referenced chronic fatigue as part of the diagnosis
provided to the occupational therapist (“OT”) performing the FCA,
AR 00578; it also notes that Murphy reported fatigue in undergoing
some of the tests. AR 00579. Although the OT notes that obtaining
information during the testing process was “difficult” because of
Murphy’s “consistent subjective reporting of overall increasing
“demonstrated physical abilities at the SEDENTARY physical demand
level.” AR 00581.
As to Murphy’s argument that Aetna failed to adequately inform
her of the type of evidence necessary to perfect her appeal, this
plaint cannot carry the day. Aetna’s July 2, 2014 cancellation
notice (AR 525-26) informed Murphy that Aetna would review “any
information from all physicians who have treated you for the
descriptive list of items, including (1) a detailed narrative
report, (2) diagnostic studies, (3) information specific to the
condition(s) related to Murphy’s disability, and (4) any other
information or documentation that might assist Aetna in reviewing
the case. It is undisputed, and the record reflects, that in
response to this notification, Murphy submitted no new physical
examinations or diagnostic test results; rather, her appeal was
supported primarily by a letter describing, inter alia, aspects of
her health and her disagreement with Dr. Mis’s evaluation that she
could return to a sedentary occupation on a full time basis. AR
00908-09. Dr. Mis’s July 3, 2014 follow-up letter, written in
connection with Murphy’s appeal, offers no specific, fact-based
support for her disability claims. Dr. Mis’s general suggestion
that Murphy “cannot sustain a steady work environment” appears to
be inconsistent with some of his earlier reports, as well as his
assessment of Murphy’s capacity for carrying out a sedentary
occupation. At the same time, Dr. Mis advises Murphy to exercise
and volunteer to “improve her quality of life.” AR 00857.
When considering the record as a whole, the Court is of the
opinion that Aetna’s denial of LTD benefits to Murphy was supported
by substantial evidence therein and that Murphy has not met her
burden to establish that such denial was arbitrary and capricious.
Accordingly, Murphy’s objections to Aetna’s denial cannot withstand
Aetna’s motion for summary judgment.
For the reasons stated herein, the Court adopts the R&R in its
entirety. Aetna’s motion for summary judgment is GRANTED; and
Murphy’s motion for summary judgment is DENIED. The Clerk is
directed to enter judgment in favor of Aetna.
/s/ Mary M. Lisi
Senior United States District Judge
January 24, 2017
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