Hines v. Aetna Life Insurance Company et al
Filing
25
OPINION AND ORDER denying 17 Motion for Summary Judgment; granting 19 Motion for Summary Judgment. Signed by Honorable Donald C Coggins, Jr on 3/26/2019.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
ANGELA HINES,
Plaintiff,
v.
THE E.I. DUPONT DE NEMOURS
AND COMPANY LONG TERM
DISABILITY PLAN,
Defendant.
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C/A No. 6:18-cv-00007-DCC
OPINION AND ORDER
This is an action seeking long-term disability benefits which is governed by the
Employee Retirement Income Security Act (“ERISA”). This matter is before the Court on
the parties’ Joint Stipulation, ECF No. 18, their Cross-Motions for Summary Judgment
ECF Nos. 17, 19, and is based on an administrative record, ECF Nos. 18-1 to 18-26. For
the reasons set forth below, Defendant’s Motion for Summary Judgment is GRANTED,
and Plaintiff’s Motion for Summary Judgment is DENIED.
I. FINDINGS OF FACT
A. Plaintiff’s Employment and Sick Leave
On November 29, 2010, E.I. du Pont de Nemours and Company (“DuPont”) hired
Plaintiff as an Operator/Mechanic at its Cooper River Plant.
In this position, she
monitored, operated, and performed basic maintenance on equipment. It is undisputed
that Plaintiff was a participant in the E.I. du Pont de Nemours and Company Total and
Permanent Disability Income Plan (“TPD Plan” or “Defendant”).
On May 4, 2012, Plaintiff reported to DuPont’s medical department because she
felt weak and clammy.
At that time, her blood pressure was high and an
electrocardiogram (EKG) showed tachychardia (elevated heart rate). She was sent to an
emergency clinic. There, she was told to go home, rest, and follow up with her primary
care doctor. Plaintiff briefly reported back to work on May 14, 2012, but went back to the
medical department that day. She had high blood pressure and an elevated heart rate.
She also reported passing out at home and having episodes in which she felt exhausted,
weak, and unable to tolerate heat. Her last day of work at DuPont was May 14, 2012.
B. Plaintiff Obtained a Diagnosis with Limited Work Restrictions.
After going out of work, Plaintiff’s doctor of osteopathy, Harold Nicolette, sent her
to Dr. Robert Leman, the co-director of an electrophysiology lab. On June 12, 2012,
Plaintiff met with Dr. Leman and reported she had some dizziness and fatigue with activity
and effort. She reported that her resting heart rate was 100 beats per minute ("bpm").
Dr. Leman, however, noted that Dr. Nicolette had earlier performed a Holter monitor study
showing an average heart rate of 88 bpm, a minimum rate of 60 bpm, and a maximum
rate of 154 bpm with exercise. He noted that Plaintiff’s recent EKG showed “normal”
activity and a recent treadmill test was “negative” for tachycardia. [Her] physical exam
was unremarkable and her “heart [was] regular.” Dr. Leman gave Plaintiff a preliminary
diagnosis of postural orthostatic tachycardia syndrome ("POTS")1, albeit somewhat
uncertainly: “she probably has a POTS like feature of has [sic] intrinsic anxiety with
elevated heart rates attributable to that.” Dr. Leman did not order any work restrictions.
1
POTS is characterized by increased heart rate when changing positions from lying to
standing.
2
At her next appointment on July 23, 2012, Plaintiff said “she went home and read
about POTS and she feels she is in agreement with me [Dr. Leman].” She said she did
not feel any better and had to urinate frequently. Dr. Leman noted that Plaintiff had a
history of “questionable” fibromyalgia symptoms and diarrhea. He also noted that Plaintiff
was not complying with his directive to reduce water intake. A physical exam was
unremarkable. Dr. Leman recommended that Plaintiff switch to decaffeinated coffee, add
more sodium to her diet, and stop drinking so much water. He thought this treatment
would avoid the diarrhea and urinary frequency and “would improve her symptoms
entirely.” He stated that Plaintiff “should avoid dangerous work projects” but did not
impose any other work restrictions.
On September 24, 2012, Dr. Leman stated that Plaintiff has “multiple somatic
complaints and what I believe to be POTS.” Her physical exam was unremarkable except
for high blood pressure and heart rate. He again noted that Plaintiff was not complying
with his recommendation to reduce her water intake. Dr. Leman stated:
Her previous workup has been relatively unremarkable and it has been
difficult to get her to do the things that I think would be helpful with her care.
I think she understands this but has this almost addiction to water.
Obviously, we may have to think about psychiatric or endocrine help if this
continues.2
Dr. Leman opined that Plaintiff might be able to be retrained and work other jobs: “I really
think we are going to have to retrain her and get her a job that she can do with her
symptoms. . . . We will try to talk with her job sources to see if we can get her retrained
2
The Administrative Record does not show that Plaintiff ever sought help from a
psychiatrist or endocrinologist.
3
to a different job.”
On October 1, 2012, Dr. Leman wrote a letter stating that Plaintiff had been
“diagnosed with POTS.” The letter further stated that Plaintiff “should avoid any job duties
that would put her at risk of injury which would include utilizing heavy equipment.” Dr.
Leman, however, did not state that Plaintiff was incapable of any work activity, and he did
not provide specific work restrictions other than use of heavy equipment.
On October 4, 2012, Dr. Marcus Schaefer wrote a letter stating that Plaintiff had
“what appears to be a cardiovascular problem.
Unfortunately, several physicians
including cardiologists have been unable to accurately diagnose and effectively treat her
illness. At times, she has an arrhythmia, which at time leads to syncope and collapse.”
He noted that Plaintiff’s job description “requires her to be able to start up and shut down
hazardous equipment,” and “work at high, precarious places.” He recommended that she
be “[m]edically restricted from performing the job responsibilities of an Operating
Technician” for at least 6-12 months. He did not state that Plaintiff was unable to perform
other occupations, and he did not provide work restrictions, aside from performing the
hazardous duties associated with her own job. He was unable to estimate when Plaintiff
could return to work at her current position. Yet, he stated: “Because she is otherwise
healthy and robust at the age of 37 it is my opinion found [sic] to resolve her near syncopal
collapse and severe fatigue will be resolved.”
C. Plaintiff Applied for and Began Receiving Disability Benefits from DuPont.
On October 4, 2012, Lynne Jamison, a nurse in DuPont’s medical department,
filled out a medical evaluation form and submitted a claim for disability benefits to Aetna
Life Insurance Co. ("Aetna") on Plaintiff’s behalf, along with medical records. Ms. Jamison
4
listed Plaintiff’s objective diagnostics (episodes of elevated heart rate and blood
pressure), as well as her subjective complaints (weakness, blurred vision, delayed
reflexes, intolerance of heat, etc.).
She stated the primary diagnosis was “POTS
Syndrome per Robert Leman, MD,” with secondary diagnoses of hypertension and
tachycardia. She stated the POTS diagnosis interfered with Plaintiff’s work activities. She
described a number of current limitations (cannot stand for longer than one hour, cannot
bend over or squat without becoming dizzy, etc.) and purported permanent restrictions
(no work in the heat, no sitting for long periods, etc.). Presumably, these limitations were
reported to Ms. Jamison by Plaintiff because they are not found in the medical records of
the treating physicians in the Administrative Record. Ms. Jamison also wrote, albeit
ambiguously, that Plaintiff’s impairments were permanent and she was not able to do
clerical activity,3 though no physician had made those findings.
On November 7, 2012, Aetna reviewed the information available at that time and
determined that, "at present," Plaintiff was totally disabled from any gainful occupation.
The approval letter, however, noted that “[Aetna] will periodically re-evaluate [Plaintiff’s]
eligibility by requesting updated medical information from [Plaintiff’s] attending physician
or an independent physician.”
D. Plaintiff Continued to Seek Medical Care After Disability Finding.
On March 25, 2013, Plaintiff met with Dr. Leman and her primary complaint was
headaches. Dr. Leman stated that Plaintiff “had some symptoms that were thought to be
3
Ms. Jamison checked a box indicating that Plaintiff suffered from a moderate limitation
of functional capacity and was capable of sedentary, clerical activity. Her contradictory
written remarks, however, state that Plaintiff was not able to do clerical activity. Ms.
Jamison also stated that she did not do a functional capacity evaluation.
5
POTS.” Plaintiff admitted that “[s]he does drink two glasses of wine about every other
day.”
Dr. Leman appeared to be out of ideas, noting “her symptom complex is very
difficult” and “[he has] given it [his] best.” Dr. Leman recommended that Plaintiff see a
neurologist and did not mention any work restrictions.
As part of a neurological work up, on April 11, 2013, Plaintiff underwent an MRI of
her brain. Multiple doctors reviewed the MRI results and found that everything looked
normal and unremarkable.
On June 6, 2013, Plaintiff underwent a sleep study
administered by Dr. Jonathon Halford, a doctor board-certified in sleep medicine. Dr.
Halford observed normal cardiac and sinus rhythms throughout the night. He found no
significant evidence of sleep apnea.
On April 28, 2014, Plaintiff was seen by Dr. Lars Runquist, a cardiologist. Dr.
Runquist performed a physical exam and observed that Plaintiff “is a middle aged healthy
appearing white female in no acute distress” with “regular [heart] rate and rhythm,” normal
bowel sounds, “no lower extremity edema,” and “normal pulses [in] all extremities.” He
noted that Plaintiff was given a POTS diagnosis, but she “never had a tilt test.” He thought
more diagnostic evidence was needed and ordered an EKG, a Holter monitor study, and
a tilt table test to be performed by Dr. Leman. He did not issue work restrictions. On April
28 and May 20, 2014, Plaintiff underwent two EKGs, and the physicians did not find any
abnormalities.
Plaintiff also underwent a Holter monitor study that showed “no
arrhythmia” and “no symptoms.”
On June 2, 2014, Plaintiff was seen by Dr. Leman who noted that she “has been
very difficult to treat because of her inability to follow therapy that is recommended.” Her
physical exam showed: “her heart is regular, the PMI is normal, and she has no murmurs
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or gallops. . . . Her bowel sounds are normal. Her extremities reveal good pulses and no
edema.”
Dr. Leman noted that Plaintiff “has a lot of somatic complaints,” but her MRI
was “normal” and the sleep apnea study was “normal.” He agreed with Dr. Runquist that
“we should do a tilt table test,” but could not do so because “unfortunately [their] table
[was] not working at the present time.” He did not discuss work restrictions.
E. Plaintiff Moved to Georgia.
In August 2014, Plaintiff moved to Georgia. Plaintiff did not establish medical care
with a doctor in Georgia until September 3, 2015, over a year from her last appointment
with Dr. Leman. Plaintiff’s new primary care physician was Dr. Robert Lemley. Her initial
appointment was on September 3, 2015, with a follow-up on October 16, 2015. Dr.
Lemley’s physical exams were relatively unremarkable.
Plaintiff gave Dr. Lemley
disability forms, but he had little knowledge of her medical condition at that time and did
not have prior medical records to rely on. Yet, at Plaintiff’s request, Dr. Lemley went
ahead and filled out the form for Plaintiff. He did not list any diagnosis. He noted that
Plaintiff reported no improvement and that she was unable to stand for periods of time.
Aside from the reference to prolonged standing, he did not impose any work restrictions
or state that she was unable to work in any capacity.
Dr. Lemley ordered lab testing and referred Plaintiff for evaluation with a
neurologist. Subsequent lab testing was negative. Plaintiff was seen by a neurologist,
Dr. Hartmann, on February 1, 2016. (AR 000672, 000727; 816-818.) The neurologist’s
evaluation, including nerve testing and electromyography (EMG) studies, did not find any
abnormalities. At a follow-up appointment on March 25, 2016, Dr. Lemley indicated that
further treatment of her postural lightheadedness and completion of disability forms
7
should be done by specialists. He told Plaintiff to stop smoking and go the gym every
other day.
F. Aetna Denied Plaintiff’s Claim for Failure to Provide Sufficient Evidence of
Continued Disability.
Before Plaintiff established care with Dr. Lemley, Aetna sent multiple requests for
updated medical information. On June 11, 2015, Aetna sent a request for “objective
medical evidence from [her] attending physician to determine if [she] remain[ed] totally
disabled,” and instructed Plaintiff that her current physician needed to complete an
enclosed Attending Physician Statement (“APS”) and return it by July 10, 2015. Plaintiff
did not respond. On July 16, 2015, Aetna sent Plaintiff a second request for updated
medical evidence and an APS. On August 28, 2015, Plaintiff informed Aetna that she
had moved to Georgia, admitted that “I do not currently have a regular doctor,” and
requested more time to find a doctor.
On September 1, 2015, Aetna responded and provided Plaintiff eight additional
weeks to find a doctor, provide a medical update, and return a completed APS. On
September 4, 2015, Plaintiff sent Aetna the office visit notes from her initial visit with Dr.
Lemley. Aetna replied that Plaintiff needed to submit a completed APS. On October 6,
2015, Aetna sent another request for proof of continued disability with a deadline of
November 4, 2015. The letter noted: “the physician statement must provide us with
information regarding how your medical condition imposes restrictions and limitations
upon your ability to perform any gainful work.”
On October 16, 2015, Aetna received Dr. Lemley’s office visit notes from October
16, 2015, and his completed APS. Aetna analyzed the new records and observed that
8
there was “no real information” in the APS, “no DX [diagnosis] listed,” and that the doctor
“lists only R&Ls [restrictions and limitations] ee [employee] has told him about[,] not
symptoms he is aware of.” On October 21, 2015, Gloria Hoehne, a registered nurse,
performed a clinical review of the file, analyzing the old and new medical records in detail.
Ms. Hoehne concluded there was no objective medical evidence showing any restrictions
or limitations on Plaintiff’s ability to work:
The information currently on file does not provide any abnormal physical,
neurological, cardiac or other findings that would preclude the claimant from
performing full time functional activities in any capacity.
It was previously noted there was a working diagnosis of POTS-like
symptoms with reported episodes of dizziness & syncope but there are no
diagnostic workups, cardiology notes or confirmation of diagnosis on file.
The claimant’s reported symptoms would only warrant avoidance of safety
sensitive activities (e.g. operation of dangerous machinery, working at
heights, working in potentially dangerous situations/environments, possible
driving restrictions, etc.) all depending on the most recent reported syncope
episode.
At this time we have no physician providing specific R&L’s or recommending
current total functional impairment with supporting correlated physical &
diagnostic exam findings from a physical, neurological or cardiac
perspective.
In January 2016, Aetna called Plaintiff and informed her that more medical information
was needed to substantiate her disability.
Plaintiff stated she had a neurologist
appointment on February 1, 2016, and Aetna instructed her to send any new neurology
records because Dr. Lemley’s office visit notes were not enough to show continued
disability. Plaintiff, however, did not send any new records after her appointment.4
4
The February 2016 neurology records (which did not find any neurologic abnormalities)
were not received by Aetna until September 2016, during a later appeal.
9
On February 22, 2016, Aetna sent Plaintiff another written request for updated
medical information and a physician statement addressing any restrictions and limitations
imposed by her medical condition. Aetna advised Plaintiff that her benefits would be
terminated if the requested information was not received by March 22, 2016. Plaintiff did
not respond.
On March 30, 2016, Aetna informed Plaintiff that she was no longer eligible for
benefits under the TPD Plan because she had failed to respond to requests for evidence
of ongoing disability. In its determination letter, Aetna detailed its repeated requests for
medical information from June 2015 through February 2016, a period of over eight
months. Aetna explained that the new office visit notes and physician statement from Dr.
Lemley contained “very limited information” and the registered nurse, Ms. Hoehne, found
that the medical information on hand “was not enough to support [Plaintiff's] disability.”
Aetna explained that Plaintiff had completely failed to respond to the most recent requests
for proof in January and February. Plaintiff’s benefits were terminated effective March
31, 2016.
G. Plaintiff’s Sees a New Cardiologist Who Casts Doubt on POTS Diagnosis.
On April 7, 2016, Plaintiff was seen by Dr. Robert Sorrentino, a cardiologist. Dr.
Sorrentino noted that Plaintiff “recently had a normal EMG study,” and that her most
recent syncope episode was September 15, 2015, over six months ago.
Plaintiff
“complain[ed] of chronic fatigue, dizziness, short bursts of palpitations (seconds), and
lightheadedness,” as well as diarrhea. However, Plaintiff inconsistently reported that her
worst time of day was in the afternoon (to Dr. Sorrentino) and in the morning (to the
nurse). Dr. Sorrentino noted there was no history of tilt-table testing. His physical exam
10
revealed normal functioning of the respiratory, cardiovascular, gastrointestinal,
neurologic, and other systems. There were no significant changes in heart rate and blood
pressure when moving from lying to sitting to standing. Overall, Dr. Sorrentino thought
the POTS diagnosis was “suspect without further data.”
He noted that Plaintiff’s
“neurologic complaints sound very worrisome except for the apparent lack of physical
findings or abnormal studies.” He further noted: “there is a very strong psychologic
overlay to her many somatic complaints and she may ultimately need a psychiatric
evaluation.” However, Dr. Sorrentino declined to make a psychiatric referral until he
reviewed Plaintiff's prior records.
On April 21, 2016, Plaintiff had a follow-up appointment with Dr. Sorrentino.
Plaintiff reported continued dizziness with standing and daily palpitations. Her physical
exam was normal, and there were no significant changes in her blood pressure and pulse
rate when moving from lying to sitting to standing.
Dr. Sorrentino stated that her
symptoms did not match typical POTS. He ordered a tilt table test. He stated that if there
was no definitive diagnosis, he would recommend behavioral therapy and psychotherapy.
Dr. Sorrentino also ordered a urinalysis to test for carcinogens, which came back
negative.
On May 18, 2016, Dr. Sorrentino administered a tilt table test to revisit the POTS
diagnosis. Plaintiff had a “normal response,” and “[t]here was no evidence for postural
orthostatic tachycardia syndrome.” (AR 000693.) This test essentially refuted the POTS
diagnosis. In the patient discharge instructions, next to the prompt for “physical activity,”
Dr. Sorrentino wrote there was “no restric” as in “no restriction” for physical activity.
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H. Plaintiff Appealed the Initial Denial of Benefits.
After the initial denial of benefits, Plaintiff filed an appeal on September 26, 2016.
In support of the appeal, Plaintiff provided Aetna with the additional medical records
discussed above, including records from the South Carolina physicians (Dr. Leman, Dr.
Runquist, and Dr. Halford) and the more recent Georgia physicians (Dr. Lemley, Dr.
Hartmann, and Dr. Sorrentino). Plaintiff later supplemented the appeal with October 2016
medical records relating to treatment for a grease burn that Plaintiff got while cooking
chicken.
The appeal stated that Plaintiff was totally disabled by three conditions: POTS
Syndrome, hypertension, and tachychardia. The appeal referenced symptoms reported
by Plaintiff: weakness, blurred vision, slurred speech, delayed reflexes, heat intolerance,
and fainting. The appeal primarily relied on the Social Security Administration’s finding
that Plaintiff was disabled.
I. Two Outside Physicians Performed a Full Review of the Claim File.
In order to evaluate Plaintiff’s appeal, Aetna arranged for two independent
physicians to review the entire claim file. These peer reviews were performed by Dr.
Wendy Weinstein, who is board certified in internal medicine, and Dr. Mark Sims, who is
board certified in cardiovascular disease and internal medicine.
1. Peer Review by Dr. Weinstein
In a lengthy report, Dr. Weinstein listed all the records reviewed and then
meticulously discussed them.
She individually assessed treating physicians’ notes,
physical exams, objective tests (MRIs, EKGs, EMGs, CT scans, Holter Monitor studies,
the sleep study, blood pressure and heart rate readings, the tilt table test, lab tests,
12
ultrasounds, etc.), and other records submitted with Plaintiff’s appeal. Dr. Weinstein also
set up a phone conference with Plaintiff’s primary physician, Dr. Lemly, and recounted
the conversation as follows:
Dr. Lemly indicated that the claimant came to him on disability and he did
additional evaluations due to her subjective complaints. He stated that he
was deferring to the specialists regarding any impairment from work. He
noted that there was no documentation of POTS syndrome or any
underlying neurologic or cardiac abnormalities. The physician stated he did
not think that she would be unable to do sedentary work. He said the initial
information was based on her historical report, but there has been no
documentation of significant abnormalities. We discussed the fact that she
has multiple somatic complaints and the cardiologist had recommended
behavioral therapy with psychotherapy.
It was noted she had a
questionable history of fibromyalgia and her symptoms of postural
intolerance may go along with chronic fatigue syndrome, which is now
identified as systemic exertion intolerance disorder. However, all of this
information is based on her subjective complaints.
Based on her review of the records and her peer-to-peer consultation with Dr.
Lemley, Dr. Weinstein analyzed a critical question: “are there any clinical findings, exam
findings, or diagnostic tests that would support any functional impairment?” Her answer
was “No.” Dr. Weinstein reported:
The clinical information does not document clinical findings, examination
abnormalities, or diagnostic tests that would support any functional
impairment. The claimant has ongoing subjective complaints without
documentation of underlying cardiac or neurologic abnormalities that would
support functional impairments from any level of work. . . .
…
The information from the claimant’s lawyer references her diagnosis of
POTS, which has been disproven by the diagnostic studies. He also
referenced her subjective complaints, but there is no documentation of
associated examination abnormalities that would support functional
impairments from the job duties of any occupation. . . . The claimant has
multiple subjective complaints, but there is no documentation of associated
clinical findings, examination abnormalities, or diagnostic studies that would
support functional impairments from the job duties of any occupation from
4/1/16 forward.
13
…
There was discussion of behavioral therapy or psychotherapy, but there
was no documentation of emotional dyscontrol, mental status examination
abnormalities, or cognitive impairments and no documentation that the
claimant would be unable to perform the job duties of any occupation.
The claimant has intermittently been on metoprolol and Lisinopril. There is
no documentation that she has adverse effects from these cardiac
medications that would impact her ability to work and recent notes reference
her being off these medications. [discussion of other medications] However,
there is no documentation of medication side effects or cognitive deficits
from her prescribed medication.
The claimant has a longstanding history of multiple somatic complaints and
she has had many thorough evaluations without documentation of
underlying cardiac or neurologic abnormalities. She may have fibromyalgia
or a type of chronic fatigue syndrome with postural intolerance, which is
based on subjective complaints. However, there is no documentation of
orthostatic hypotension or orthostatic tachycardia, and no documentation of
autonomic neuropathy or additional musculoskeletal or neurologic
examination abnormalities that would preclude the claimant from working.
She has a large somatic overlay, but there is no definitive diagnosis and no
documentation of any specific treatment. It has been recommended she
have psychotherapy and a graded exercise program may be beneficial.
There is no diagnosis and no specific prognosis. However, given her
multiple somatic complaints that have been present for many years, even
when she was working, it is not clear that her subjective symptoms will
change. However, there is no documentation of any underlying medical
diagnoses that would preclude the claimant from working.
Dr. Weinstein’s opinions, as stated above, were “held to a reasonable degree of clinical
certainty.” She avowed that she had no incentive, financial or otherwise, “that would lead
me to offer an opinion other than based on [her] honest professional assessment of the
information provided for review.”
2. Peer Review by Dr. Sims
Dr. Sims, a board-certified cardiologist, also issued a detailed report in which he
listed all of the medical records reviewed and discussed the most relevant cardiology,
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neurology, and other records.
Dr. Sims spoke by phone with Plaintiff’s treating
cardiologist, Dr. Sorrentino, and reported the following peer-to-peer consultation:
Dr. Sorrentino returned my call 10/25/16, 8:35 A.M., EDT. I did have the
opportunity to discuss the claimant’s case with him at that time he indicated
the following:
The claimant’s diagnosis was illusive. He believes that she has a strong
psychological overlay. The claimant was noted to have a negative cardiac
evaluation which included the recent performance of a Tilt Table Test which
did not establish the diagnosis of POTS. I did ask whether from the
cardiovascular perspective the claimant has a full-time work capacity and
whether she was subject to any cardiovascular based restrictions or
limitations. Dr. Sorrentino answered that the claimant has no evidence of
cardiovascular based impairment and is not subject to any cardiovascular
based restrictions and limitations; therefore is capable of full-time work with
no imposed cardiovascular based restrictions and limitations. Consensus
was reached on this issue between myself and Dr. Sorrentino.
Dr. Sims then addressed whether there was any objective medical evidence
showing that Plaintiff is functionally impaired from working:
Based on review of the totality of provided medical records as well as on
my discussion of the claimant’s case with Dr. Sorrentino, no cardiovascular
based impairment is supported.
This is based on the negative
cardiovascular evaluation which included a normal Tilt Table Test
performed 05/18/16.
The only cardiovascular based anomalies supported were a short PR
interval on an ECG and a Holter Monitor on 04/28/14 which documented
rare premature atrial contractions and a single 6 beat run of supraventricular
tachycardia at a rate of 156.
Dr. Sorrentino did not reference
supraventricular tachycardia as a clinically relevant or impairing condition
and opined that the claimant is capable of engaging in full-time activities
without cardiovascular based restrictions or limitations. She has no other
evidence of structural heart disease and the records provided for review as
well as Dr. Sorrentino’s assessment do not support a diagnosis of POTS.
Dr. Sims also noted that there was no evidence of harmful side effects caused by
Plaintiff’s medications.
He stated that Plaintiff’s “prognosis from the cardiovascular
15
perspective appears to be good.” He affirmed that his opinions were held to a reasonable
degree of medical certainty and he had no conflicts of interest.
J. Aetna Upheld Its Initial Determination and Denied Plaintiff’s Appeal.
On November 9, 2016, Aetna informed Plaintiff that it was denying the appeal.
Aetna explained: “We reviewed the entire claim file, including all medical records,
attending physician statements, and your appeal letter. In order to assess functional
impairment, the available medical documentation in Ms. Hines’s claim was reviewed by
independent peer reviewers specializing internal medicine and cardiology.”
Aetna
reasoned that there were no cardiovascular impairments based on the findings of the
treating cardiologist, Dr. Sorrentino, and the peer reviewing cardiologist, Dr. Sims.
Likewise, from an internal medicine viewpoint, the treating physician, Dr. Lemley, and the
peer reviewing physician, Dr. Weinstein, did not find any functional impairments. In sum,
Aetna performed a full review and concluded there was no clinical evidence of a functional
impairment that would preclude Plaintiff from performing the material duties of even her
own occupation. On December 7, 2016, Aetna sent corrected information regarding “next
steps” and informed Plaintiff that she had the right to make a second-level appeal to
DuPont.
K. Plaintiff Submitted a Second-Level Appeal, and DuPont Upheld Aetna’s
Determination that Plaintiff Was Not Eligible for Benefits.
On June 4, 2017, Plaintiff sent a second-level appeal to DuPont. Plaintiff also sent
new medical records relating to a broken arm that Plaintiff sustained in June 2017 and
the biopsy of tissue near the fracture which turned out to be a benign enchondroma (bone
16
tumor). Aetna prepared an “Appeal Summary” which was sent to DuPont along with the
medical and other records.
The DuPont Benefit Appeals Committee evaluated all of the records provided by
Aetna and by Plaintiff’s attorney, including the new records from June 2017.
The
Committee drafted a “Summary of Facts” and held a meeting on October 25, 2017, to
discuss and decide Plaintiff’s appeal. On November 15, 2017, the Committee sent
Plaintiff a letter notifying her that they had decided to deny the second-level appeal
because Plaintiff did not provide medical evidence showing that she was and continued
to be totally and permanently disabled under the terms of the TPD Plan. Similar to Aetna,
the Committee did a full review and did not find records establishing that Ms. Hines was
disabled.
L. Relevant Plan Terms
It is undisputed that Plaintiff was employed DuPont and a participant in the Plan.5
The TPD Plan states that DuPont “retains discretionary authority to determine eligibility
for benefits hereunder and to construe the terms and conditions of the Plan.” The TPD
Plan also gives DuPont authority to delegate administration of the TPD Plan and to
employ others for advice. In this case, DuPont delegated claims administration duties to
5
The TPD Plan was amended in 2005 and again in 2015. The Parties disagree as to
whether the 2005 or 2015 version of the TPD Plan applies. “[A]n ERISA cause of action
based on the denial of benefits accrues at the time benefits are denied, and the plan in
effect when the decision to deny benefits is controlling,” as opposed to the plan in effect
when the plaintiff allegedly became disabled or submitted her claim. McWilliams v. Metro.
Life Ins. Co., 1999 WL 64275, at *2 (4th Cir. Feb. 11, 1999). Here, Plaintiff’s benefits
were first denied on March 30, 2016. At that time, the 2015 TPD Plan was in effect and
therefore is controlling. Moreover, there are no material differences between the 2005
and 2015 TPD Plan that would affect the Court’s resolution of the pending motions.
17
Aetna.
Only an employee who is “totally and permanently disabled” may receive benefit
payments under the TPD Plan. The TPD Plan defines that term as follows:
An individual should be considered “totally and permanently disabled” if the
Company finds that he is totally disabled by injuries or disease and
presumably will be totally and permanently prevented from pursuing his own
occupation during a period of twenty-four (24) months at eighty percent
(80%) or more of his normal monthly earnings or any gainful occupation,
after a period of twenty-four (24) months provided the disability does not
result from: 1. participation in willful acts contrary to law and order; or 2. any
occupation or work outside the Company for compensation or profit.
This definition breaks down into two time periods:
24-Month Own Occupation Period: “totally and permanently prevented from
pursuing his own occupation during a period of twenty-four (24) months at
eighty percent (80%) or more of his normal monthly earnings”
Post-24-Month Any Occupation Period: “totally and permanently prevented
from pursuing … any gainful occupation, after a period of twenty-four (24)
months”
Here, Plaintiff received long term disability ("LTD") benefits from December 1, 2012, to
March 31, 2016. As that time period exceeds 24 months, the relevant inquiry is whether
Plaintiff was totally and permanently prevented from pursuing any occupation due to injury
or disease. Indeed, the Parties have jointly stipulated that “the ‘any occupation’ standard
applies and the central inquiry is whether DuPont’s determination that Plaintiff was not
totally and permanently prevented from pursuing any gainful occupation due to an injury
or disease was an abuse of discretion.” ECF No. 18 ¶ 6.
In terms of evidentiary proof of disability, the TPD Plan states:
Satisfactory medical evidence must be provided on which the Company
may base a finding that an individual is totally and permanently disabled.
The Company may require, in its discretion, a report from the individual’s
physician and other appropriate information and documentation as part of
the basis for determining total and permanent disability.
If DuPont finds that a claimant meets this definition, continued payment of benefits
18
requires the claimant to periodically submit proof of ongoing disability:
Payments of benefits will be contingent on the former employee’s providing
evidence satisfactory to the Company, when and so often as the Company
may require, that he continues to be totally and permanently disabled, and
undergoing such medical examinations as the Company may require.
Failure to furnish such proof or to cooperate with the Company’s Medical
Division shall result in benefits under this Plan being terminated.
In sum, the claimant bears the burden of providing “satisfactory medical evidence” on an
ongoing basis to prove that she continues to be totally and permanently prevented from
pursuing any occupation due to an injury or disease.
II.
PROCEDURAL HISTORY
On November 30, 2017, Plaintiff filed a Complaint in the Greenville County Court
of Common Pleas, and Defendants removed the action within 30 days of service. ECF
No. 1. In the Complaint, Plaintiff alleges she is unable to perform the duties of any
occupation. The only specific disability alleged is POTS. Plaintiff alleges a single cause
of action under 29 U.S.C. § 1132(a)(1)(B) to recover LTD benefits. Defendants Aetna
and DuPont were dismissed without prejudice, leaving the TPD Plan as the only
Defendant.
On June 18, 2018, the Parties filed a Joint Stipulation regarding the Administrative
Record, Plan Documents, standard of review, and other matters. ECF No. 18. The
Administrative Record and Plan Documents are attached thereto as Exhibits 1 through
26. The Parties stipulated the Court may dispose of this case based on cross-memoranda
for judgment. The Parties further stipulated that the central inquiry for resolution by the
Court is “whether DuPont’s determination that Plaintiff was not totally and permanently
prevented from pursuing any gainful occupation due to an injury or disease was an abuse
of discretion.”
19
On June 18, 2018, the Parties filed their cross motions for summary judgment.
ECF Nos. 17, 19. Under the Amended Specialized Case Management Order, response
briefs were due by June 25, 2018. ECF No. 15. Defendant filed a response brief on June
25, 2018. ECF No. 20. Plaintiff did not file a response brief.
III.
CONCLUSIONS OF LAW
A. Standard of Review
A denial of benefits challenged under § 1132(a)(1)(B) is reviewed under an abuse
of discretion standard where, as here, “the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, the Parties
have stipulated that the standard of review is abuse of discretion. ECF No. 18 ¶ 3.
The abuse of discretion standard is “highly deferential” to the plan administrator.
Cosey v. Prudential Ins. Co. of Am., 735 F.3d 161, 168 (4th Cir. 2013). In applying this
standard, “[t]he court must not disturb the administrator’s decision if it is reasonable, even
if the court itself would have reached a different conclusion.” Haley v. Paul Revere Life
Ins., 77 F.3d 84, 89 (4th Cir. 1996) (citation omitted). In assessing reasonableness of the
administrator’s decision, the Court may consider non-exclusive factors, including:
(1) the language of the plan; (2) the purposes and goals of the plan; (3) the
adequacy of the materials considered to make the decision and the degree
to which they support it; (4) whether the fiduciary’s interpretation was
consistent with other provisions in the plan and with earlier interpretations
of the plan; (5) whether the decisionmaking process was reasoned and
principled; (6) whether the decision was consistent with the procedural and
substantive requirements of ERISA; (7) any external standard relevant to
the exercise of discretion; and (8) the fiduciary’s motives and any conflict of
interest it may have.
Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, 359 (4th Cir. 2008) (quoting Booth
20
v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342–43). Here,
the Parties have only made arguments relating to the first, third, fifth, seventh, and eighth
factors. Analysis of those factors is subsumed within the Court’s discussion below.
B. DuPont’s Decision to Uphold the Denial of Benefits Was Not an Abuse of
Discretion.
1. DuPont’s Determination Was Supported by Substantial Evidence.
As stipulated, the central inquiry is whether it was an abuse of discretion for DuPont
to determine that Plaintiff was not totally and permanently disabled under the TPD Plan,
i.e. that she was not totally and permanently prevented from pursuing any occupation due
to injury or disease. ECF No. 18 ¶ 6. The Administrative Record contains substantial
evidence supporting DuPont’s determination.
First, Plaintiff’s treating physicians opined that Plaintiff is capable of working.
Plaintiff’s most recent primary care physician, Dr. Lemley, stated he thought Plaintiff was
able to do sedentary work. This is consistent with his earlier notes, in which the only
limitation listed was prolonged standing.6 In addition, Plaintiff’s most recent treating
cardiologist, Dr. Sorrentino, stated that Plaintiff does not have any cardiovascular
impairments and is capable of full-time work. Dr. Sorrentino’s opinion is corroborated by
his earlier discharge notes, which stated that Plaintiff had “no restric[tions]” from physical
activity.
None of Plaintiff’s other treating physicians ever imposed any permanent
restrictions or limitations that would prevent Plaintiff from working in any capacity.7
6
Also, when referencing Plaintiff’s alleged inability to work, Dr. Lemley frequently qualified
Plaintiff’s own opinions as separate from his own.
7
In October 2012, Dr. Leman stated that Plaintiff should avoid using heavy equipment
and other hazardous duties. Not all jobs involve heavy equipment and hazardous duties,
21
Second, objective medical testing consistently found that Plaintiff’s neurological,
cardiovascular, and other systems were operating normally. As detailed in the Factual
Background of this Order and the reports of the third-party physicians who did peer
reviews, Plaintiff underwent numerous procedures—MRIs, EKGs, EMGs, CT scans,
Holter Monitors, ultrasounds, blood tests, and urinalysis—and none of the tests
established significant abnormalities. Although there were a few instances of mildly high
blood pressure and heart rate, those are not “totally and permanently” disabling
conditions. Plaintiff’s alleged disabling condition (POTS) was never decisively diagnosed
and was ultimately refuted by objective evidence. Dr. Sorrentino administered a tilt table
test in May 2016, and Plaintiff had a “normal response.” There was “no evidence for
postural orthostatic tachycardia syndrome.”
All of the objective medical testing
corroborates the treating physician’s opinions that Plaintiff is able to work.
Third, two board-certified physicians performed thorough peer reviews of the entire
claim file, spoke with the treating physicians, and drafted lengthy reports analyzing the
available medical evidence. Dr. Weinstein determined there was “no definitive diagnosis”
and no medical evidence establishing any cardiac or neurologic condition that would
functionally impair Plaintiff and prevent her from working. Dr. Sims concluded that the
medical records did not support a POTS diagnosis and there were no cardiovascular
impairments that would prevent Plaintiff from working. In addition, a nurse at Aetna did a
so this restriction would not prevent Plaintiff from working any occupation. Dr. Leman
also did not say the restriction was permanent. In October 2012, Dr. Schaefer restricted
Plaintiff from her own occupation for 6-12 months because it involved hazardous
equipment and working in high, precarious places. He did not impose any permanent
restrictions that would preclude her from working any occupation.
22
full clinical review of the file and concluded that Plaintiff was not totally disabled. In sum,
there is abundant evidence showing that DuPont made a reasonable decision. This level
of evidence exceeds the required threshold.
Further, DuPont’s decision was not an abuse of discretion because Plaintiff’s
POTS diagnosis was refuted by Dr. Sorrentino’s objective medical testing, and there was
no medically supported diagnosis of a disabling condition. Compare Scott v. Eaton Corp.
Long Term Disability Plan, 454 F. App'x 154, 157-58, 160-61 (4th Cir. 2011) (reversing
district court and holding that administrator’s decision to deny LTD benefits was not an
abuse of discretion where diagnoses made by primary care physician were refuted by
specialists and objective tests, and primary care physician’s opinion that plaintiff was
totally disabled was contradicted by peer review physicians).
The Court notes, however, that it is concerned with the comments of DuPont's
Medical Director—Dr. Suzanne Sherman. In an email to a DuPont Human Resources
representative, Dr. Sherman addressed an incident where Plaintiff burned herself while
frying chicken. Dr. Sherman stated:
Notably, the final assessment of record 16 Oct 2016 is for medical care
obtained for a second degree burn obtained while frying chicken (McDuffie
Medical Associates). This action on the part of the claimant, that is the
choice to fry chicken in her home is inconsistent with an individual who
perceived herself to be completely disabled.
This comment is inappropriate and factually inaccurate. People who are disabled struggle
on a daily basis to take care of their activities of daily living. They also have to eat, and
often have to feed their family. Such absurd commentary is inappropriate in the context
of a LTD appeal, and the Court has expressly disregarded this opinion in its review of this
case.
23
In sum, the treating physicians’ opinions, the peer review physicians’ opinions, and
the results of objective medical tests all reasonably lead to the same conclusion: Plaintiff
was not totally disabled under the TPD Plan. Thus, the decision to deny further LTD
benefits was within DuPont’s discretionary authority.
2. The Evidence Relied Upon by Plaintiff Does Not Show that DuPont’s
Determination Was Unreasonable.
a. Medical Records
Plaintiff cites to medical records from 2012: (1) Dr. Robert Leman’s records from
2012, (2) the evaluation form filled out by nurse Lynne Jamison in 2012, and (3) a letter
written by Dr. Marcus Schaefer in 2012. ECF No. 17 at 4-6, 11 n.9. These records include
Plaintiff’s self-reported symptoms, but it is reasonable to deny an LTD claim that depends
on self-reported symptoms and not objective medical tests.
Further, Dr. Leman only restricted Plaintiff from using heavy equipment and other
hazardous duties, and Dr. Schaefer only restricted her from working in her own
occupation for 6-12 months. These physicians never opined that Plaintiff was totally and
permanently disabled and never issued medical restrictions that would prevent her from
working in any capacity. Further, it was reasonable for DuPont to give less weight to
Nurse Jamison’s conflicting and ambiguous opinion, stating both that Plaintiff is (1)
permanently disabled and unable to do clerical work, and (2) able to do clerical work.
In addition, it was reasonable for DuPont to give less weight to the 2012 opinions
and more weight to the more recent 2016 opinions of Dr. Lemley, Dr. Sorrentino, Dr.
Weinstein, and Dr. Sims—all concluding that Plaintiff was not medically restricted from
working in any capacity. The 2016 physician opinions were informed by more recent
24
office visits, physical exams, and diagnostic tests (such as the tilt table test). It was
reasonable for DuPont to rely on the more recent and better-informed opinions made in
2016, especially because the TPD Plan requires Plaintiff to periodically submit proof that
she “continues to be” totally and permanently disabled.
Plaintiff also cites records relating to a broken arm in 2017. ECF No. 17 at 16.
The June 2017 records include diagnostic and treatment information for a broken arm
and a benign bone lesion. They do not include significant diagnostic tests or treatment
of Plaintiff’s allegedly disabling condition, POTS. Under the TPD Plan, only medical
conditions that commence prior to termination of employment may be considered. The
broken arm did not exist prior to Plaintiff’s last day of work in 2012, and therefore cannot
be considered here. Further, the TPD Plan only covers conditions that are “permanently”
disabling.
A broken arm is not permanently disabling.
The orthopedic physicians
instructed Plaintiff that her right arm should not bear weight for at least two weeks. These
physicians did not certify that Plaintiff was permanently disabled or give her any
permanent restrictions.
b. Social Security Award
Plaintiff relies on an Administrative Law Judge’s ("ALJ's") determination that
Plaintiff was disabled under SSA regulations. See ECF No. 17 at 7-8, 29-31. The ALJ’s
determination, made in June 2014, was premised on the POTS diagnosis as the sole
condition limiting Plaintiff’s ability to work. The ALJ did not have the benefit of the results
of more recent diagnostic tests from 2015 and 2016, such as the tilt table test, or Plaintiff’s
more recent treating physicians’ opinions that Plaintiff did not have POTS and was not
medically restricted from working. The SSA award is also irrelevant because the TPD
25
Plans terms do not “mirror” the SSA regulations. See Smith v. Continental Cas. Co., 369
F.3d 412, 420 (4th Cir. 2004) ("[W]hat qualifies as a disability for social security disability
purposes does not necessarily qualify as a disability for purposes of an ERISA benefit
plan—the benefits provided depend entirely on the language in the plan.").
c. Interrogatory Responses of Vocational/Rehabilitation Consultant
Plaintiff also relies on interrogatory responses of a Rehabilitation Consultant, which
were paid for by Plaintiff to help obtain Department of Veterans Affairs ("VA") benefits.
See ECF No. 17 at 10-12, 15. However, these interrogatory responses suffer from the
same deficiencies as the ALJ’s decision. The Consultant’s responses were not based on
the most current medical information and applied VA regulations which do not mirror the
terms of the TPD Plan. Moreover, the Consultant was required to “assume” a long list of
debilitating medical limitations, which are not supported by Plaintiff’s actual medical
records as found in the Administrative Record.
d. Resolution of Conflicting Medical Evidence
Although the evidence cited by Plaintiff may be relevant, the Administrative Record
contains abundant evidence supporting the denial of LTD benefits, including objective
medical tests and medical opinions from both treating and peer review physicians. It is
not an abuse of discretion for a plan administrator “to resolve conflicting medical
assessments.” Webster v. Black & Decker (U.S.) Inc., 33 F. App'x 69, 75 (4th Cir. 2002)
(citation omitted).
26
3. DuPont’s Determination Was the Result of a Deliberate, Principled
Process.
DuPont delegated the initial decision and appeal to Aetna, a third-party claims
administrator. Aetna initially approved Plaintiff for LTD benefits. At that time, Plaintiff had
been tentatively diagnosed with POTS by Dr. Leman, and a nurse had indicated that
Plaintiff had some permanent impairments and could not perform clerical work.
After the initial approval, numerous objective medical tests were performed that
found no abnormalities. Plaintiff also moved to Georgia and did not establish care with a
doctor for over a year, calling into question her status as totally disabled. Consistent with
the TPD Plan’s requirement that Plaintiff provide satisfactory medical evidence showing
that she “continues” to be totally disabled, Aetna sent numerous requests for medical
evidence between June 2015 and February 2016. Plaintiff provided minimal evidence in
response. A registered nurse performed a full review of the file and determined that there
was insufficient medical evidence to support the POTS diagnosis or any restrictions and
limitations. Aetna issued its initial decision to terminate benefits and explained that (1) it
had persistently given Plaintiff opportunities to provide evidence, (2) the medical
information received was not enough support a finding of total and permanent disability,
and (3) plaintiff stopped responding to requests for proof. Aetna gave Plaintiff 180 days
to appeal and explained that Aetna would consider any additional medical information on
appeal.
Plaintiff was represented by counsel during the appellate process and submitted
additional records. The new records included Dr. Hartmann’s neurological testing and
Dr. Sorrentino’s cardiovascular testing, neither of which revealed any abnormalities. At
27
Aetna’s request, two board-certified physicians prepared detailed reports analyzing all of
the available evidence. The peer review physicians did not ignore evidence that might
favor Plaintiff’s position. For example, Dr. Weinstein addressed the appeal letter drafted
by Plaintiff’s counsel, the Rehabilitation Consultant’s report, and the SSA’s disability
determination,8 and Dr. Sims addressed the isolated instances of cardiovascular
anomalies. Both Dr. Weinstein and Dr. Sims were able to consult by phone with treating
physicians and clarify their views with respect to potential diagnoses and related
restrictions. In deciding to deny the appeal, Aetna reviewed all the available evidence
and summarized the evidence that it found most relevant. Aetna notified Plaintiff that she
would be given a second opportunity to appeal and submit additional information to
Dupont.
In considering the second-level appeal, DuPont’s Benefit Appeals Committee
evaluated all of the records available, including the new records submitted with the
second-level appeal. The Committee prepared a factual summary and held a meeting to
discuss and decide Plaintiff’s appeal. DuPont then issued its final decision to deny the
second-level appeal, explaining that the evidence provided did not substantiate a finding
of total and permanent disability as defined by the TPD Plan. Dupont’s second-level
appeal opinion was the final result of a lengthy and principled process that entailed
thorough consideration of the evidence at multiple stages. These procedures do not
constitute an abuse of discretion.
8
Aetna and DuPont also considered the SSD award and the Rehabilitation Consultant’s
opinions but declined to give them substantial weight for legitimate reasons, which are
articulated in the record and are reasonable, as discussed below.
28
Plaintiff contends that Aetna and DuPont did not consider the SSD Award and the
Vocational Consultant’s report. ECF No. 17 at 9, 12, 14-15, 29, 31. This is contrary to
the record. In its March 30, 2016 denial letter, Aetna specifically addressed the SSD
Award: “our disability determination and the SSD determination are made independently
and are not always the same” because: (1) there are differences between the SSA
regulations and the TPD Plan, and (2) Aetna and the SSA might have reviewed different
information. Aetna stated it was “unable to give [the SSD award] significant weight.” On
October 5, 2016, Aetna specifically noted that the SSD award was “almost 3 years old”
and “would not be relevant to current medical conditions(s) and or any restrictions or
limitations.”
Further, during the appeal, Aetna provided the ALJ’s decision and the Vocational
Consultant’s responses to the peer review physicians who expressly considered them
prior to making conclusions. In the “decision rationale” section of its claim notes, Aetna
summarized the peer review reports and explained that records dependent on the POTS
diagnosis were not persuasive: “the vocational rehabilitation specialist was working on
old data and did not have the current documentation that the claimant does not have
postural orthostatic tachycardia syndrome.” In its appeal denial letter, Aetna stated that
it had considered “the entire claim file” and apparently placed substantial weight on the
opinions of the peer reviewers and treating physicians, rather than the outdated SSD
award and the Vocational Consultant’s responses.
During the second-level appeal, Aetna sent DuPont all of the medical records,
which included the SSD determination and related records. DuPont created its own
appeal summary, which specifically referenced both the ALJ’s decision and the
29
Vocational Consultant’s responses.
DuPont explained that these records were not
persuasive because they were outdated, reliant on Plaintiff’s subjective symptoms, and
did not consider a full array of potential occupations under the any occupation standard.
In its letter denying Plaintiff’s second-level appeal, DuPont explained that its Benefits
Appeal Committee did “a thorough review of the medical records provided by Aetna and
Ms. Hines’ attorney” and determined that Plaintiff had not proven that she was totally and
permanently disabled.
The fact that Aetna and DuPont did not specifically refer to the SSD Award or the
Vocational Consultant’s responses in their appeal denial letters is not material under the
circumstances presented. “The committee is not required to make specific findings with
regard to each piece of evidence before it for its decision to be reasonable.” Faulkner v.
Columbia Gas Transmission, No. 5:09-cv-123, 2012 WL 589181, at *5 (N.D.W. Va. Feb.
22, 2012). Aetna and DuPont’s earlier observations—that the SSD Award and Vocational
Consultant’s responses were based on outdated information and not consistent with the
TPD Plan’s terms—are reasonably sufficient based on Fourth Circuit case law.
Plaintiff also contends that DuPont did not consider the June 2017 medical records
submitted with her second-level appeal. ECF No. 17 at 24-26. DuPont’s appeal summary
and second-level appeal denial letter, drafted in October 2017 and November 2017,
respectively, state that there was a thorough review of the records submitted by Aetna
and Plaintiff’s attorney “through October 2016.” However, a closer examination of the
record reveals this is a mere typographical error. The appeal summary refers to a
“chondrosarcoma Grade 1 Right Humerus.” This is a direct reference to the June 2017
medical records.
Further, emails among members of DuPont’s Benefits Appeal
30
Committee also show that the June 2017 medical records were considered.
Plaintiff also suggests that DuPont was required to obtain an independent medical
examination (“IME”). ECF No. 17 at 1, 31. However, the TPD Plan did not require DuPont
to procure an IME and neither does ERISA.
[A] plan administrator has no duty to develop evidence that a claimant is not
disabled prior to denying benefits. . . . Nothing in the language of the Plan
document or in our precedents required [the plan administrator] to seek out
IME evidence as a condition to its denial of [plaintiff’s] claim.
Piepenhagen v. Old Dominion Freight Line, Inc., 395 F. App'x 950, 957 (4th Cir. 2010).
The Court finds that the factual record developed by Defendant is sufficient and that no
IME was necessary based on the circumstances and medical evidence in the
administrative record.
4. DuPont’s Decision Was Not Influenced by a Conflict of Interest.
Plaintiff argues that DuPont was operating under a conflict of interest. ECF No. 17
at 27-28, 31. Here, there is merely a structural conflict because DuPont has a “dual role
of both evaluating claims and paying claims.” Fortier v. Principal Life Ins. Co., 666 F.3d
231, 236 n.1 (4th Cir. 2012). This factor is only significant if the plaintiff points to “evidence
of how the conflict of interest affected the interpretation made by the administrator,”
Fortier, 666 F.3d at 236 n.1, or evidence of “a history of biased claims administration.”
Tortora v. Hartford Life & Accident Ins. Co., 162 F. Supp. 3d 520, 527-28 (D.S.C. 2016).
Here, Plaintiff has not pointed to any evidence showing that a conflict influenced
DuPont’s determination or any history of biased decisions. Moreover, DuPont mitigated
the conflict by delegating the initial determination and first-level appeal to Aetna, a thirdparty with no financial interest at stake, and by relying on third-party peer review
physicians who prepared detailed, well-reasoned reports and attested that they had no
31
conflicts of interest.
IV.
CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment, ECF
No. 19, is GRANTED, and Plaintiff’s Motion for Summary Judgment, ECF No. 17, is
DENIED. Because the Court affirms the denial of benefits, and in light of the relative
resources of the parties, the Court declines to award attorneys’ fees to either party.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge
March 26, 2019
Spartanburg, South Carolina
32
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