Dupell v. K. Hovnanian Companies, LLC et al
Filing
31
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION TO REMAND AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying 23 Motion for Summary Judgment and denying 25 Motion for Summary Judgment. The Court will enter a Scheduling Order shortly hereafter the entry of this Order that will set dates for the upcoming bench trial. Signed by District Judge Gina M. Groh on 1/24/2013. (cwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MAUREEN D. DUPELL,
Plaintiff,
v.
CIVIL ACTION NO. 3:12-CV-6
(JUDGE GROH)
AETNA LIFE INSURANCE
COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION TO REMAND AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. Introduction
Plaintiff, Maureen D. Dupell (“Plaintiff”), as a participant in her employer-sponsored
benefit plan, brings a claim pursuant to the civil enforcement provision of the Employee
Retirement Income Security Act (“ERISA”), § 502(a) (29 U.S.C. § 1132(a)) to recover longterm disability benefits that were denied by the Defendant, Aetna Life Insurance Company
(“Defendant”). This matter is currently before the court on Defendant Aetna Life Insurance
Company’s Motion for Summary Judgment [Doc. 23], filed on July 9, 2012. The Plaintiff
filed her Response to this Motion for Summary Judgment [Doc. 28] on July 23, 2012. The
Defendant filed a reply thereto [Doc. 29] on July 30, 2012. For the following reasons, this
Court DENIES the Defendant’s Motion for Summary Judgment [Doc. 23].
Also pending before this Court is the Plaintiff’s Motion for Summary Judgment or,
1
in the Alternative, Motion to Remand [Doc. 25], filed on July 9, 2012. Defendant filed its
Response in Opposition to Plaintiff’s Motion for Summary Judgment or, in the Alternative,
Motion to Remand [Doc. 27] on July 23, 2012. Plaintiff filed a Reply Memorandum in
Support of her Motion for Summary Judgment [Doc. 30] on July 30, 2012. For the following
reasons, this Court DENIES the Plaintiff’s Motion for Summary Judgment or, in the
Alternative, Motion to Remand [Doc. 25].
II. Factual Background
Plaintiff is a 58 year-old female residing in Berkeley County, West Virginia. (Joint
Stipulation, [Doc. 22] ¶ 1). Plaintiff alleges that in 1991, she developed degenerative
disc disease and a ruptured disc with leg pain and weakness. (Pl.’s Compl., [Doc. 5] ¶
11). In March 1992, Plaintiff had surgery at John Hopkins Medical Center which
consisted of a laminectomy and discectomy at L4-L5. Id. On October 30, 2004, an MRI
examination of Plaintiff’s lumbar spine was conducted which revealed further
degenerative disc disease. Id. at ¶ 13.
Social Security Administration’s Disability Determination
On December 22, 2005, the Social Security Disability Administration (“SSA”)
determined that Plaintiff was disabled as defined by the Social Security Act and
Regulations, and Plaintiff received an award of Social Security Disability Income
(“SSDI”) retroactive to March 2, 2004. Id. at ¶ 9; A.R. [Doc. 20] 323-26.1 The SSA
stated that Plaintiff was “incapable of performing substantial gainful activity” due to
1
References to the Administrative Record refer to the Defendant’s bate stamp number located in the
bottom right-hand corner of the Administrative Record filed by the Defendant in this Court on May 4, 2012
[Doc. 20].
2
“discogenic and degenerative disorders of the spine and a depressive disorder.” A.R.
324-25. The SSA elaborated on these findings by stating that Plaintiff is “mentally
limited to simple, routine, one-two step work” and that Plaintiff could not “perform [her]
past relevant work and does not have transferable skills to perform other work within
[her] residual functional capacity to perform less than sedentary exertional work.” Id. at
324.
Plaintiff’s Employment
In September 2005, Plaintiff was hired as a sales assistant for Dan Ryan
Builders. (Joint Stipulation, ¶ 10). Plaintiff’s Social Security Disability payment
continued during her nine months of trial work, which enabled her to test her ability to
work. Id. at ¶ 13. Her trial work period ended in June 2006. A.R. 453-55. On March
20, 2006, Plaintiff was hired by K. Hovnanian Companies, L.L.C. (“KHC”). Id. at ¶ 2.
Plaintiff worked as a sales consultant with a $14,000 annual base salary, plus
commissions. (Pl.’s Compl., ¶ 16). As a sales consultant for KHC, Plaintiff “secure[d]
contracts for the purchase of new homes, assist[ed] in securing financing, help[ed]
choose exterior color selections for the new home, if applicable, while being [a] liaison
between the Community Manager/Community and the public.” A.R. 435. The KHC
sales consultant position required the following physical job duties:
[T]he Associate is regularly required to sit at a desk, use
fingers to operate a computer keyboard, reach for telephone
or books with hands and arms, and talk and hear on the
telephone while communicating with others. The Associate
is regularly required to stand and walk around a sales office
or construction site. The Associate must occasionally lift
and/or move up to 10 pounds. Specific vision abilities
required by this job include close vision and ability to adjust
focus.
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Id. at 437.
As a KHC employee, Plaintiff enrolled in KHC’s long-term disability plan. (Joint
Stipulation, ¶ 6). Aetna served as the underwriter and claims administrator for KHC’s
Long-Term Disability Plan (the “Plan”), which is an employee welfare benefit plan as
defined by ERISA. Id. at ¶ 4-5. While working at KHC, Plaintiff applied for and was
placed on short-term disability until April 30, 2008 under KHC’s Short Term Disability
Plan. Id. at ¶ 12. Because of Plaintiff’s substantial work at KHC, she was not entitled to
SSDI payments from October 2006 through September 2007. Id. at ¶ 13. Plaintiff’s
SSDI payments were reinstated by a letter dated November 2, 2007. Id. at ¶ 14.
Plaintiff’s Long-term Disability Benefits Claim
On March 11, 2008, Plaintiff applied for long-term disability benefits under the
Plan. Id. at ¶ 15. In support of her application, Plaintiff also submitted a Physician
Statement prepared by Dr. J.A. Burgess which stated that the Plaintiff could not lift, that
the Plaintiff could not sit, stand, walk, or drive for more than thirty minutes at a time, and
that a low-stress environment was preferred for the Plaintiff. A.R. 288. According to the
Plan, a plan participant is disabled if “[f]rom the date you first become disabled and until
Monthly Benefits are payable for 24 months . . . if: you are not able to perform the
material duties of your own occupation solely because of: disease or injury; and your
work earnings are 80% or less of your adjusted predisability earnings.” Id. at 319.
On
March 26, 2008, Plaintiff was approved for long-term disability benefits under the
aforementioned Plan definition and began receiving benefits pursuant to the Plan.
(Joint Stipulation, ¶ 16).
After Plaintiff’s initial approval for long-term disability benefits, she had multiple
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MRIs. On February 17, 2009, an MRI of Plaintiff’s spine revealed further degeneration.
A.R. 268. On November 5, 2009, Plaintiff underwent a “fluoroscopic-guided, left L5
block and multilevel lateral branch block as a diagnostic evaluation in preparation for
possible radiofrequency denervation” by Dr. Mayo Friedlis. Id. at 294. The next day, on
November 6, 2009, Dr. Mayo Friedlis conducted a physical examination of the patient
and found that she “had reduced lumbar range of motion with associated tenderness”
and felt that she also had “left sacroilitis with a lumbar post laminectomy syndrome and
a left L5 radiculopathy and multilevel lumbar disc disease.” Id.
Plaintiff’s Long-term Disability Renewal
After receiving long-term disability benefits for the first twenty-four months, Aetna
reviewed Plaintiff’s application for long-term disability benefits under the Plan’s second
disability definition: a plan participant is disabled if “[a]fter the first 24 months that any
Monthly Benefit is payable during a period of disability . . . if you are not able to work at
any reasonable occupation solely because of: disease; or injury.” Id. at 319. The Plan
defines reasonable occupation as “any gainful activity for which you are; or may
reasonably become; fitted by; education; training; or experience; and which results in; or
can be expected to result in; an income of more than 80% of your adjusted predisability
earnings.” Id. at 190. On January 20, 2010, as part of Plaintiff’s renewed application
for long-term disability benefits, the Aetna Attending Physician Statement form was
completed by Dr. Sylvia Cruz, D.O., Pain Management Specialist. Dr. Cruz listed the
Plaintiff’s diagnoses as lumbar spondylosis with lumbar radiculopathy; Dr. Cruz opined
that Plaintiff had no ability to work. Id. at 288.
On March 9, 2010, Dr. Lawrence Blumberg, M.D., was assigned to perform a
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Physician Review by Aetna, and Dr. Blumberg had a peer-to-peer consultation with Dr.
Cruz on March 10, 2010. Id. at 378. Dr. Blumberg stated that he was told by Dr. Cruz
that “the [Plaintiff] could perform any occupational activities provided she was allowed to
change positions.” Id. On March 30, 2010, Aetna denied Plaintiff’s application for longterm disability benefits under the Plan’s above disability definition, and the denial was
effective April 1, 2010. (Joint Stipulation, ¶ 17).
Plaintiff’s Appeal of Decision to Aetna
Plaintiff timely appealed Aetna’s denial of her long-term disability benefits. Id.
As part of Plaintiff’s appeal, Dr. Cruz sent a letter to Aetna Disability-Workability
Appeals dated May 10, 2010, in which Dr. Cruz sought to clarify her March 10, 2010
peer-to-peer conversation with Dr. Blumberg. A.R. 338. In her letter, Dr. Cruz noted
that “as time has progressed [the Plaintiff’s] functionality has significantly decreased
since her disability determination, and she is not able to perform these functions as well
as she did when she was determined to be disabled.” Id.
On May 11, 2010, the Plaintiff underwent another MRI. Id. at 332. The Plaintiff’s
clinical history stated she was a “56-year-old woman with low back and left lower
extremity symptoms, progressively worsening. Patient has history of previous surgery
in 1992.” Id. Doctor Rees concluded that the MRI showed “a degenerative disc disease
and spondylosis greatest on the left at L5-S1. Clinical correlation for a left greater than
right L5 radiculopathy suggested.” Id.
On June 18, 2010, the Plaintiff underwent a comprehensive and detailed
independent medical evaluation by Dr. Alex Ambroz; he reviewed her medical history,
including her medical records. Id. at 309-317. As part of her appeal, Plaintiff submitted
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Dr. Ambroz’s report of the evaluation. Id. at 305-317. Dr. Ambroz concluded that “[a]s
a result of her medical problems she is permanently and totally disabled. She fully
meets the terms of Aetna’s permanent disability.”Id. at 313.
On September 20, 2010, as part of another physician review performed by the
Defendant, Dr. Richard S. Kaplan spoke to Dr. Friedlis, a Pain Management Specialist.
Id. at 295. Dr. Kaplan’s report indicated that “[Dr. Friedlis] reports that given [the
Plaintiff’s] severe pain she would not have been able to work at all during the period
under review.” Id. In this report, Dr. Kaplan stated that “[o]verall the medical records do
not support any functional assessment or diagnosis or objective finings [sic] which
would indicate an inability of the claimant to perform any work or her usual occupation
as per the available job description. There is essentially no functional testing data at
all.” Id. Furthermore, in a supplemental physician review dated October 6, 2010, Dr.
Kaplan found that “a more quantitative validation of this claimant’s functional abilities
would certainly be appropriate. There might reasonably be some difference in
professional judgment regarding the exact level of restrictions/limitations at which this
claimant is able to work . . . .” Id. at 279.
On December 16, 2010, Aetna affirmed its denial of Plaintiff’s application for
long-term disability benefits under the Plan, thereby exhausting all of Plaintiff’s
administrative remedies under the Plan. (Joint Stipulation, ¶ 18).
III. Procedural Background
Plaintiff filed her Complaint [Doc. 5] on January 23, 2012. On February 14, 2012,
the Defendants filed a Motion to Strike and Partial Motion to Dismiss [Doc. 7]. On February
29, 2012, the Plaintiff filed a Response in Opposition to the Defendants’ motion [Doc. 12],
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and on March 8, 2012, the Defendants filed a Reply to the Plaintiff’s Response [Doc. 14].
Accordingly, this Court found that, “Aetna did reserve discretionary authority to determine
eligibility for benefits, and . . . the applicable standard of review for this matter is abuse of
discretion standard.” See (Order Granting Defs.’ Mot. to Strike and Granting Defs.’ Partial
Mot. to Dismiss, [Doc. 21] at 13). Additionally, this Court granted the Defendants’ Motion
to Dismiss K-Hovnanian Companies, LLC as a party defendant to the action. Id. at 16.
On July 9, 2012, the Defendant Aetna Life Insurance Company filed a Motion for
Summary Judgment [Doc. 23]. Also on July 9, 2012, the Plaintiff filed a Motion for
Summary Judgment, or in the Alternative, Motion to Remand [Doc. 25]. On July 23, 2012,
the Defendant filed its Response in Opposition to Plaintiff’s Motion for Summary Judgment,
or in the Alternative, Motion to Remand [Doc. 27]. Also on July 23, 2012, the Plaintiff filed
a Response in Opposition to Defendant’s Motion for Summary Judgment [Doc 28]. On July
30, 2012, the Defendant filed a Reply in Support of its Motion for Summary Judgment [Doc.
29]. Also on July 30, 2012, the Plaintiff filed a Reply to the Defendant’s Response to
Plaintiff’s Motion for Summary Judgment or, in the Alternative, Motion to Remand [Doc. 30].
Accordingly, this Court now considers the motions for summary judgment filed by the
Defendant Aetna Life Insurance [Doc. 23] and by the Plaintiff Maureen D. Dupell [Doc. 25].
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and under the
Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., (“ERISA”).
IV. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. See
FED. R. CIV. P. 56. Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
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that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, the Court must conduct “the threshold inquiry of determining whether there is the
need for a trial- whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Anderson, 477 U.S. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its
burden to show absence of material fact, the party opposing summary judgment must then
come forward with affidavits or other evidence demonstrating there is indeed a genuine
issue for trial. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477
U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).
When both parties file motions for summary judgment, as here, the court applies the
same standards of review. ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th
Cir. 1983) (“The court is not permitted to resolve issues of material facts on a motion for
summary judgment–even where . . . both parties have filed cross motions for summary
judgment.”) (emphasis omitted), cert. denied, 469 U.S. 1215 (1985). A motion for summary
judgment should be denied “if the evidence is such that conflicting inferences may be
9
drawn therefrom, or if reasonable men might reach different conclusions.” Phoenix Sav.
& Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.3d 245 (4th Cir. 1967); see also Anderson,
477 U.S. at 253 (noting that “[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.”).
V. Discussion
A. Standard of Review under ERISA
1. Abuse of Discretion
As held by a previous Order of this Court, the proper standard of review in this
case is abuse of discretion. (Order Granting Defs.’ Mot. to Strike and Granting Defs.’
Partial Mot. to Dismiss, p. 13). The Fourth Circuit has explained that “[u]nder this
deferential standard, the administrator or fiduciary’s decision will not be disturbed if it is
reasonable, even if this court would have come to a different conclusion independently.”
Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). To be reasonable, the
decision must be “the result of a deliberate, principled reasoning process and [ . . . ]
supported by substantial evidence.” Id. (quoting Brogan v. Holland, 105 F.3d 158, 161
(4th Cir. 1997)). See also Williams v. Metro. Life Ins. Co., 609 F.3d 622, 630 (4th Cir.
2010) (plan administrator’s decision is reasonable if it is “the result of a deliberate,
principled reasoning process and if it is supported by substantial evidence.”). Whether
the Defendant abused its discretion in denying the Plaintiff long-term disability benefits
depends upon the Defendant’s decision-making process: The Defendant’s decision
must be the product of a principled reasoning process and supported by substantial
10
evidence. In determining the reasonableness of a plan administrator’s discretionary
decision, the Fourth Circuit has outlined a list of non-exclusive factors that may be
considered 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.
Booth v. Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan, 201 F.3d 355, 342-43
(4th Cir. 2000); see also Donnell v. Metro. Life Ins. Co., 165 Fed. Appx. 288, 294 n.6
(4th Cir. 2006) (noting that the Booth factors are “more particularized statements of the
elements that constitute a ‘deliberate, principled reasoning process’ and ‘substantial
evidence’”).
2. Conflict of Interest
The Defendant has a structural conflict of interest because it was responsible for
both evaluating and paying claims. (Defs.’ Mot. to Strike and Partial Mot. to Dismiss,
[Doc. 7], ¶ 2). The Supreme Court held this conflict of interest does not alter the
standard of review; rather, the presence of such a conflict is “but one factor among
many that a reviewing judge must take into account.” Metro. Life. Ins. Co. v. Glenn,
554 U.S. 105 (2008). The Fourth Circuit stated that a “structural conflict of interest
should not have a significant role in the analysis” where the administrator “was not
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inherently biased in making its decision.” Williams, 609 F.3d at 632. In Williams, the
plan administrator, MetLife, had a structural conflict of interest because it “serve[d] in
the dual role of evaluating claims for benefits and of paying benefit claims . . . .” Id.
However, the structural conflict of interest did not play a significant role in the analysis
because “MetLife’s initial finding of disability, its payment of longterm disability benefits
for almost two years, and its referral of its termination decision to two independent
doctors” suggested that it was “not inherently biased in making its decision.”
Here, it is undisputed that the Defendant both insures the plan and administers it.
(Defs.’ Mot. to Strike and Partial Mot. to Dismiss, [Doc. 7] ¶ 2). Like Williams, where the
Fourth Circuit found no inherent bias in the decision-making process because MetLife
paid long-term disability benefits for almost two years and referred the termination
decision to two independent doctors, this Court also FINDS no inherent bias in Aetna’s
decision-making process. The Defendant had four physicians review the claim file,
including review by independent physicians through the MLS company, which provides
independent medical evaluations, peer review services, and functional capacity
evaluations. Additionally, the Defendant paid long-term disability benefits for the first
two years. Therefore, this is simply a factor that is taken into account in determining the
reasonableness of the Defendant’s decision, and it is not, by itself, determinative of the
reasonableness of its decision. Additionally, because the Defendant was not inherently
biased in making its decision, the structural conflict of interest does not play a significant
role in the analysis.
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B.
Genuine Issues of Material Fact Exist Regarding Whether Aetna’s Denial
was Reasonable
The Plaintiff’s and the Defendant’s Motions for Summary Judgment fail to meet
the summary judgment standard because there are genuine disputes of material facts
regarding whether the Defendant’s decision to deny long-term disability benefits was a
reasonable one. To be reasonable, a decision must be the product of a deliberate,
principled reasoning process and supported by substantial evidence.
1.
A Question of Fact Exists as to Whether Aetna’s Decision is the
Product of a Deliberate, Principled Reasoning Process
Plaintiff argues that Defendant did not sufficiently weigh the SSA finding; thus,
the decision is not the product of a deliberate, principled reasoning process. Plaintiff
contends that the definition of disability under the long-term disability Plan is similar to
the analogous definition used by the SSA in making its disability determinations. (Pl.’s
Mem. of Law in Opp. to Aetna Life Ins. Co.’s Mot. for Summ. J. [Doc. 28] p. 8-9]. The
Plaintiff continues by stating that Defendant “did not consider the Social Security
Administration’s disability finding and discounted it.” Id. at 9. Defendant argues that it
“thoughtfully determined that the SSA decision from December 22, 2005 was not
controlling.” (Def.’s Mot. for Summ. J. [Doc. 23] p. 20). Defendant claims it
distinguished the SSA’s disability determination because “the information that was relied
on to approve your claim for [SSDI] benefits differs significantly from the information we
now have concerning your claim.” Id.
Social security disability awards are not binding on ERISA plan administrators;
however, “SSA determinations are not worthless, either.” Dickens v. Aetna Life. Ins.
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Co., Civ. No. 2:10-CV-88, 2011 WL 1258854 (Mar. 28, 2011). Whether the finding by
the SSA is given greater weight depends on the similarity of the “disability” definitions of
the agency and Aetna’s plan. See Elliott, 190 F.3d at 607 (noting the consideration of
the SSA’s finding “depend[s], in part, on the presentation of some evidence that the
‘disability’ definitions of the agency and Plan are similar.”). Therefore, if the disability
standards for social security and the plan are not sufficiently similar, then courts should
not consider an SSA award in an ERISA case. See Pipenhagen v. Old Dominion
Freight Line, Inc. Emp. Benefit Plan, 395 F. App’x 950, 957-58 (4th Cir. 2010)
(unpublished); Whitten v. Hartford Life Grp. Ins. Co., 247 F. App’x 426, 429 (4th Cir.
2007) (unpublished) (affirming the district court’s decision that the SSA’s disability
determination should be “discounted . . . due to the differing definitions of disability used
by SSA and the Plan.”). However, if the SSA’s disability definition and the Plan’s
corresponding disability definition are “sufficiently similar, a plan administrator’s failure
to consider the SSA award in making the Erisa plan decision is an abuse of discretion.”
Dickens, 2011 WL 1258854 at *3 (citing Crouch v. Siemens Short-Term Disability
Plan, 662 F. Supp. 2d 553, 561 (S.D.W. Va. 2009) (plan administrator’s failure to
consider SSA award where the plan and SSA disability definitions were similar was an
abuse of discretion). Indeed, if the plan and SSA disability definitions are sufficiently
similar, then “the plan administrator must afford the SSA decision ‘significant weight.’”
Dickens, 2011 WL 1258854 at *3 (citing Hines v. Unum Life Ins. Co. of Am., 110 F.
Supp. 2d 458, 468 (W.D. Va. 2000) (plan administrator “should have given the [SSA]’s
findings significant weight.”)).
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a. The Disability Definitions are Similar
The long-term disability benefits Plan administered by Aetna contains a disability
definition that is very similar to the SSA’s relevant definition. The Plan’s disability
definition that is relevant to this case considers an individual disabled if “[a]fter the first
24 months that any Monthly Benefit is payable during a period of disability . . . if you are
not able to work at any reasonable occupation solely because of disease; or injury.”
A.R. 319. Reasonable occupation is defined as “any gainful activity for which you are;
or may reasonably become; fitted by; education; training; or experience; and which
results in; or can be expected to result in; an income of more than 80% of your adjusted
predisability earnings.” Id. at 190.
The Social Security Administration’s corresponding definition provides that a
disability is “the inability to do any substantial gainful activity by reason of any medical
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months. To meet this definition, you must have a severe impairment(s) that makes you
unable to do your past relevant work or any other substantial gainful work that exists in
the national economy.” 20 C.F.R. § 404.1505 (2012).
Upon examining the Plan’s disability definition and the SSA’s disability definition,
they appear to be very similar. First, both require that an impairment, illness, or injury
cause the claimant’s inability to work. Second, such an illness, injury or impairment
must make the claimant unable to perform the tasks required of the claimant’s past work
or of a different reasonable occupation or substantial gainful work. Aetna’s plan defines
“reasonable occupation” as “any gainful activity”–mirroring the phrase used in the SSA’s
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disability definition “the inability to do any substantial gainful activity.” Indeed, the
definitions–though not identical in terms of their phrasing–are sufficiently similar as to
require the Defendant to meaningfully weigh the SSA’s disability determination. See
Dickens, 2011 WL 1258854, *3 (finding that Aetna’s LTD plan’s totally disabled
definition was sufficiently similar to the SSA’s totally disabled definition and noting three
similar components in both definitions: causal, impairment, and scope). Accordingly,
the Court FINDS the two definitions similar such that the SSA determination was
entitled to substantial weight.
b. Question of Fact Exists as to Whether Aetna Meaningfully
Weighed the SSA Award
Because the Plan’s disability definition and the SSA’s analogous disability
definition are found to be sufficiently similar, the Defendant was required to
“meaningfully weigh” the social security disability benefit award before making its
disability determination. Dickens, 2011 WL 1258854, *4. Here, a question of fact
exists as to whether the Defendant has substantial conflicting evidence to support their
determination to give little to no weight to the SSA’s disability determination. Although
the Defendant contends that it meaningfully weighed the SSA’s disability determination,
in the Defendant’s denial letter to the Plaintiff, it discounted the disability determination
in one sentence “[t]he review shows that the information that was relied on to approve
your claim for SSD benefits differs significantly from the information we now have
concerning your claim.” A.R. 171. Additionally, a one-sentence dismissal of the SSA
disability determination seems suspect when “an administrator receives reimbursement
because of an SSA finding of disability.” Pauley v. Hartford Life & Acc. Ins. Co., 2:0916
CV-896, 2010 WL 2836746, *7 (S.D.W. Va. July 20, 2010) (citing Calvert v. Firstar
Fin., Inc., 409 F.3d 286, 294–95 (6th Cir.2005) (“[A] decision by a plan administrator to
seek and embrace an SSA determination for its own benefit, and then ignore or
discount it later, casts additional doubt on the adequacy of their evaluation.” (internal
quotation marks omitted)). See also Crouch v. Siemens Short–Term Disability Plan,
662 F. Supp. 2d 553, 561 (S.D.W. Va. 2009) (remanding to plan administrator where
administrator “did not review the SSA's award of benefits—an award which has at least
some evidentiary significance even in the absence of substantive medical findings by
the SSA”); Thomas v. ALCOA Inc., No. RDB–07–1670, 2008 WL 4164156, * 13 (D.
Md. Sept.5, 2008) (“While Alcoa is not bound by the Administrative Law Judge ..., its
findings should have been weighed by the company as relevant evidence.”); Hines v.
Unum Life Ins. Co. of Am., 110 F. Supp. 2d 458, 468 (W.D. Va.2000) (“While Unum is
not bound in any way by the determinations of the ALJ, it should have at least
considered those findings as relevant evidence.”). In this case, the Defendant
embraced the SSA determination in order to demand reimbursement of a portion of the
benefits previously paid to the Plaintiff. A.R. 194-95. In a letter to the Plaintiff
demanding reimbursement, the Defendant stated “[w]e have been advised that you
have been awarded Primary Social Security Disability Income (SSDI) benefits in the
amount of $2,116.00 per month effective October 1, 2007. Your STD and LTD plans
require that we offset your STD and LTD benefits by the amount of your Social Security
benefit.” Id. The Defendant was reimbursed $35,030.10 for a portion of the benefits
paid. Id. at 341-42. Despite this reimbursement to the Defendant based on the SSA’s
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disability finding, it is unclear whether the Defendant considered the reasoning behind
the SSA’s disability determination and whether the Defendant properly discounted the
determination. Thus, it is ultimately a question of fact as to whether the Defendant
properly weighed and subsequently discounted the SSA’s disability determination.
2. A Question of Fact Exists as to Whether Aetna’s Decision is
Supported by Substantial Evidence
There is a question of material fact as to whether substantial evidence supports
the Defendant’s conclusion that the Plaintiff is not totally disabled under the Plan’s
definition. The Fourth Circuit has defined substantial evidence as “evidence which a
reasoning mind would accept as sufficient to support a particular conclusion. It consists
of more than a mere scintilla of evidence but may be somewhat less than a
preponderance .” LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197 (4th Cir. 1984)
(quoting Laws v. Celebrezze, 368 F.3d 640, 642 (4th Cir. 1966)), overruled by
implication on other grounds by Black & Decker Disability Plan v. Nord, 538 U.S. 822
(2003); see also United Seniors Ass’n v. Social Sec. Admin., 423 F.3d 397, 404 (4th
Cir. 2005); Stup v. UNUM Life Ins. Co. of Am., 390 F.3d 301, 308 (4th Cir. 2004)
(noting that voluminous documents of medical records satisfied Plaintiff’s “initial burden
of submitting proof that she . . . was entitled to long-term benefits under the ERISA plan”
and ultimately holding the plan administrator did not have substantial evidence to
support denial of benefits). Here, reasonable minds could differ in regard to the
following issues: the interpretation of the objective medical findings, such as the MRIs
and the physicians’ opinions regarding the Plaintiff’s ability to work.
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a. Disputes Regarding the Objective Medical Findings
Objective medical evidence of total disability, such as X-rays, test results, or MRI
reports, are persuasive as substantial evidence of disability. See Hensley v. Int’l Bus.
Mach. Corp.,123 Fed. Appx. 534, 538 (4th Cir. 2004) (affirming defendant’s denial of
benefits because the “record is largely devoid of objective medical evidence of total
disability, such as x-rays, test results or MRI reports” and plaintiff merely relied on
opinion of treating physician); Simmons v. Prudential Ins. Co. of Am., 564 F. Supp.
2d 515, 524 (E.D.N.C. 2008) (same). The opinions of the Plaintiff’s treating physicians
and the opinions of the Defendant’s physician reviewers provide a stark contrast. The
Plaintiff’s treating physicians relied on numerous MRI images in making their diagnosis,
and the MRI images were also included in the Plaintiff’s appeal of the Defendant’s
denial of her long-term disability benefits. An MRI from May 11, 2010, stated the
Plaintiff’s clinical history of “56-year-old woman with low back and left lower extremity
symptoms, progressively worsening. Patient has history of previous surgery in 1992.”
A.R. 332. The same MRI resulted in Doctor Rees’s following conclusion, “[t]here is a
degenerative disc disease and spondylosis greatest on the left at L5-S1. Clinical
correlation for a left greater than right L5 radiculopathy suggested.” Id. Additionally, Dr.
Ambroz reviewed the Plaintiff’s medical records, including the aforementioned MRI, and
he determined that “[a]s a result of her medical problems she is permanently and totally
disabled. She fully meets the terms of Aetna’s permanent disability.” Id. at 313. In
reviewing this MRI, Aetna referred the Plaintiff’s file for review to an Internal Medicine
physician. Id. at 173. However, Aetna’s reviewing physician noted that the Plaintiff’s
19
“EMG studies showed chronic L5 radiculopathy, but did not document[ ] correlating
physical examination abnormalities that would support your inability to perform any
occupation.” Id. at 174. Dr. Kaplan also disagreed with Dr. Ambroz’s conclusion stating
that “the underlying data upon which that conclusion is based does not support such a
level of impairment.” Id. at 283. Thus, it appears there is a genuine question of fact
regarding the analysis of the MRIs performed, the connection between the Plaintiff’s
alleged total disability, and the weight to be given this objective evidence.
b. Disputes as to Ability to Work
There is a substantial disagreement regarding Plaintiff’s abilities to perform any
job, specifically a sedentary position. The Plaintiff’s own treating physician, Dr. Cruz,
concluded that the Plaintiff had “no ability to work.” Id. at 288; 426. Additionally, Dr.
Ambroz, who completed a history and physical of Ms. Dupell, stated that she
“appear[ed] in chronic pain”, had “decreased ranges of motion of the lumbar spine”, and
she “could not walk on her heels and toes without difficulty/pain” nor “squat and arise.”
Id. at 311-12. Dr. Ambroz concluded that she “has significant chronic pain to her low
back and left side . . . ha[s] decreased ranges of motion of the lumbar spine associated
with decreased sensation, reflex changes, and weakness in both legs” ; thus, Dr.
Ambroz found her to be “permanently and totally disabled. She fully meets the terms of
Aetna’s permanent disability.” Id. at 313.
However, the Defendant argues that Dr. Cruz’s Capabilities and Limitations
Worksheet reveals that she could possibly work because the Plaintiff could occasionally
kneel, pull, push, reach above her shoulder, could do forward reaching, carrying,
bending, and twisting. Id. at 428. In order to occasionally be able to do an activity, the
20
Plaintiff must be able to perform such activities between 1-33% of the day. Id. Thus, a
question of fact exists as to whether the Plaintiff can perform such activities only one
percent of the day or thirty-three percent of the day. Additionally, a question of fact
exists as to whether being able to complete these activities 1-33% of the day enables
one to “work at any reasonable occupation.” Last, it is disputed whether this
Capabilities and Limitations Worksheet constitutes substantial evidence supporting
Aetna’s denial of benefits even though it conflicts with Dr. Cruz’s other opinions
regarding the Plaintiff’s ability to work.
Additionally, the Defendant insists that the Plaintiff’s alleged ailments do not
prevent her from performing any occupation; specifically, the Defendant had a
Vocational Rehabilitation Consultant review Plaintiff’s claim which concluded that she
could have the following “gainful occupations” in her “geographical area” such as:
“Manager, Benefits; Manger [sic], Employment Agency; Manager, Department;
Business Representative; [and] Human Resources Manager.” Id. at 191. Also, one of
the Defendant’s physician reviewers–Dr. Blumberg–conducted a peer-to-peer
consultation with Dr. Cruz, the Plaintiff’s treating physician. Dr. Blumberg reported that
during this peer-to-peer consultation, Dr. Cruz stated that the Plaintiff “could perform
any occupational activities provided she was allowed to change positions.” Id. at 378.
This alleged admission is a stark contrast to Dr. Cruz’s other conclusions that the
Plaintiff had “no ability to work” and that she had “intolerance to prolonged periods of
standing, sitting or walking [for] greater than 15 minutes.” Id. at 428.
However, the Plaintiff argues that Dr. Blumberg’s notes from his peer-to-peer
consultation with Dr. Cruz on March 10, 2010 mischaracterizes his conversation with Dr.
21
Cruz. Dr. Blumberg indicates that the Plaintiff could perform any occupational activities
as long as she was allowed to change positions; however, in a follow-up letter by Dr.
Cruz, she states that the Plaintiff’s “functionality has significantly decreased since her
disability determination, and she is not able to perform these functions as well as she
did when she was determined to be disabled.” Id. at 338. Additionally, Dr. Cruz points
out that she advised Dr. Blumberg that the Plaintiff “had a difficult time sitting, standing
or laying down greater than 10 minutes. [She] has to stand if sitting, if sitting may have
to stand or lay down.” Id. Dr. Cruz also voiced her concern as to the Plaintiff’s
employability when she must change positions in ten minute intervals. Id. at 174. Thus,
there is a disputed issue of material fact regarding whether the Defendant’s denial is
supported by substantial evidence and whether the Defendant has sufficient conflicting
evidence to discount the Plaintiff’s evidence, specifically with regard to Dr. Cruz’s
opinion regarding the Plaintiff’s ability to work2. Therefore, the trier of fact must
determine whether AETNA relied on substantial conflicting medical evidence in denying
coverage, based on the evidence that was before Aetna at the time of making its
decision. See Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir. 1995) (noting
that when determining whether a plan administrator’s decision is reasonable, it is
“based on the facts known to [the administrator] at the time.”).
2
However, a plan administrator “does not act unreasonably by denying benefits if the record contains
‘conflicting medical reports.’” Id. (citing Elliott v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999)). Also,
this Court is not stating that a treating physician’s opinion must be given more weight; rather, it is a question
of fact to weigh and determine the credibility of the multiple conflicting physicians’ opinions. See Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (holding that “[p]lan administrators . . . may not
arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician” but that
plan administrators are not required “automatically to accord special weight to the opinions of a claimant’s
physician.”).
22
Because there are numerous genuine issues of material fact which conflicting
inferences may be drawn from the evidence and reasonable men may reach different
conclusions, the Plaintiff’s Motion for Summary Judgment [Doc. 25] and the
Defendant’s Motion for Summary Judgment [Doc. 23] are both DENIED.
C. Remand is Inappropriate in this Case
In reviewing a plan administrator’s decision under the abuse of discretion
standard, “an assessment of the reasonableness of the administrator’s decision must be
based on the facts known to it at the time.” Elliott, 190 F.3d at 608-09 (quoting
Sheppard & Enoch Pratt Hosp., 32 F.3d 120, 125 (4th Cir. 1994). Remand is proper
when the district court believes the administrator lacked adequate evidence on which to
base a decision. Elliott, 190 F.3d at 609 (citing Berry v. Ciba-Geigy, 761 F.2d 1003,
1008 (4th Cir. 1985)).
However, the Fourth Circuit has clearly stated that remand should be used
sparingly. Elliott, 190 F.3d at 609. In Elliott, the claimant stated that the Plan
Administrator and Appeals Committee had an obligation to secure additional evidence,
such as a report from a vocational consultant to determine what jobs she could possibly
perform, prior to making its disability determination. Id. Therefore, the claimant argued
that the Appeal Committee made its decision based on an insufficient record and was
not a reasonable decision. Id. The Defendant argued that the Plaintiff beared the
burden of proving her disability under the Plan and the Plaintiff was free to supplement
the record for her appeal; thus, the Defendant claimed it had no obligation to retrieve
additional information. Id. Because the Plaintiff had the burden of proving her disability
23
and the ability to supplement the medical records before the Appeal Committee, the
Fourth Circuit held that remand was not necessary and that the claimant could not
prevail on the argument that the Appeal Committee had “insufficient evidence to make a
reasoned decision.” Id.
The Fourth Circuit has outlined two situations where remand is “most
appropriate.” Id. at 609. First, “where the plan itself commits the trustees to consider
relevant information which they failed to consider.” Id. (quoting Berry, 761 F.2d at
1008). Second, “where [the] decision involves ‘records that were readily available and
records that trustees had agreed that they would verify.’” Id. Additionally, a district
court “may exercise its discretion to remand a claim ‘where there are multiple issues
and little evidentiary standard to review.’” Elliott, 190 F.3d at 609 (quoting Quesinberry
v. Life Ins. Co. of N.A., 987 F.2d 1017, 1025 n.6 (4th Cir. 1993) (en banc)).
The Plaintiff argues that remand is appropriate because the administrator lacked
adequate evidence on which to base a decision. (Pl. Mot. for Summ. J., [Doc. 26] ¶ 21).
Specifically, the Plaintiff argues that the Defendant should have ordered a functional
capacity evaluation and reviewed the evaluation prior to denying her long-term disability
benefits. Id. at ¶ 22. However, “a plan administrator is under no duty to secure specific
forms of evidence.” Elliott, 190 F.3d at 609. This was the Plaintiff’s burden, and
Defendant permitted her to supplement her file during the review process. A.R.188-192.
Additionally, there is adequate evidence in the record on which to base a decision.3
3
Although there is adequate evidence in the administrative record on which to base a decision
regarding the Plaintiff’s qualification for long-term disability benefits, a genuine issue of fact remains regarding
whether the Defendant’s denial was a reasonable decision under the abuse of discretion standard, based
upon the information the Defendant had before it at the time it rendered its decision.
24
Defendant listed forty-one documents and other evidence that were in the Plaintiff’s
claim file for review, and the Defendant enlisted independent peer physicians to review
her claim. Id. at 171-75. Therefore, there is ample adequate evidence that the
Defendant could base a decision on in denying the Plaintiff’s long-term disability
benefits. Thus, remand is inappropriate in this case.
VI. Conclusion
For the foregoing reasons, this Court hereby DENIES the Plaintiff’s Motion for
Summary Judgment or, in the Alternative, Motion to Remand and DENIES the
Defendant’s Motion for Summary Judgment.
The Court will enter a Scheduling Order shortly hereafter the entry of this Order
that will set dates for the upcoming bench trial.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record
herein.
DATED: January 24, 2013
25
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