UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary Hopper
v. Civil No. 14-cv-450-LM Opinion No. 2015 DNH 191 Aetna Life Insurance Company
O R D E R
Gary Hopper claims that Aetna Life Insurance Company
(“Aetna”) violated the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001-1461, by terminating his long-term
disability benefits under a plan it administered for his
employer. Before the court are motions for judgment on the
administrative record filed by both parties. Each motion is
duly opposed. For the reasons that follow, Aetna’s motion is
granted, and Hopper’s motion is denied.
I. Background
Until May of 2011, Hopper worked as a machinist for Ametek,
Inc. While he was employed by Ametek, he was covered by a plan,
administered and insured by Aetna, that provides both short-term
disability (“STD”) and long-term disability (“LTD”) benefits.
Under that plan, Aetna has “discretionary authority to determine
whether and to what extent eligible employees and beneficiaries are entitled to benefits and to construe any disputed or
doubtful terms under this Policy, the Certificate or any other
document incorporated herein.” Administrative Record
(hereinafter “AR”), at D 000149. The plan further provides that
Aetna “shall be deemed to have properly exercised such authority
unless [it] abuse[s] [its] discretion by acting arbitrarily and
capriciously.” Id.
Shortly before he left Ametek’s employment, Hopper applied
for and was awarded STD benefits. In his application, Hopper
identified various medical conditions that precluded him from
working in dusty or dirty environments. Those conditions
include allergies, eczema, asthma, Bowen’s Disease, amblyopia,
dry eye, decreased visual acuity, s/p penetrating keratoplasty,
herpes simplex keratitis, open angle glaucoma, and keratoconus.
After Hopper’s STD benefits were exhausted, he was awarded LTD
benefits for a 24-month period running from August 23, 2011,
through August 23, 2013. Under the applicable test of
disability, he was entitled to LTD benefits based upon Aetna’s
determinations that he could not perform the duties of his own
occupation as a machinist, and that his earnings fell below a
specified threshold.
2 Under the Aetna plan, when Hopper had collected LTD
benefits for 24 months, he became subject to a stricter test of
disability that entitled him to LTD benefits only if he was
“unable to work at any reasonable occupation solely because of
an illness, injury or disabling pregnancy-related condition.”
AR, at D 000164. The plan defines “reasonable occupation” as
“any gainful activity” for which a plan participant is “or may
reasonably become, fitted by education, training, or experience;
and [w]hich results in, or can be expected to result in, an
income of more than 80% of [the participant’s] adjusted
predisability earnings.” Id. at D 000182. Under the plan,
eligibility for LTD benefits ends when, among other things, a
plan participant “no longer meet[s] the LTD test of disability.”
Id. at D 000165.
In January of 2013, Aetna notified Hopper that as of August
23, 2013, he would become subject to the stricter “any
reasonable occupation” test and that his claim would be reviewed
under that test. In a letter dated August 15, 2013, Aetna
informed Hopper that he was not entitled to LTD benefits under
the “any reasonable occupation” test because he could perform
the occupations of machinist, bench assembler, and tool
programmer. In rendering that decision, Aetna did determine
3 that Hopper was “precluded from . . . performing tasks that
required the ability to see small print or fine detail without
the use of a magnifying device / ability to adjust print font
sizes.” AR, at D 000285.
Hopper appealed Aetna’s decision. He pointed out that
Ametek had discharged him from his position as a machinist
“because his employers determined that his continued employment
would pose a danger to himself and others.” AR, at D 000287.
He also noted medical issues, including vision problems, that
precluded him from working in the three occupations Aetna
identified, and also asserted that Aetna’s findings were
“inconsistent with those of the social security administration.”
AR, at D 000288.
Initially, Aetna agreed with Hopper. In a letter dated
January 10, 2014, Aetna explained:
Based upon our review of all the information submitted and gathered during the claim and appeal, we have overturned our original decision to terminate Mr. Hopper’s benefits; our review has established that the employment options identified do not fit within all of his physical restrictions and limitations. As a result, [Hopper’s] claim has been returned to the claims operation team and will be re-opened by [the] Disability Benefits Manager (DBM) for review and benefit payment, effective August 23, 2013.
Pl.’s Mem. of Law (doc. no. 13) 13.
4 Approximately three weeks later, Hopper received another
letter from Aetna. In it, Aetna informed Hopper that it agreed
with him that “the original occupations [it had] identified
would not be appropriate as [he was] precluded from working in
an environment that would [involve] expos[ure] to dust and dirt
as this [would] trigger a flare up of [his medical] condition.”
AR, at D 000758. Aetna went on to explain that it had Hopper’s
medical documentation reviewed by a dermatologist and an
ophthalmologist, and then determined that he “would have
sustained full duty work capacity in an office environment.”
Id. Then, based upon a review by a vocational rehabilitation
consultant, Aetna determined that Hopper could work as an
assignment clerk. Aetna also explained that it gave little
weight to the fact that Hopper was receiving Social Security
disability benefits, based upon its own Transferrable Skills
Analysis (“TSA”).
Hopper appealed. Again he argued that Aetna’s denial of
benefits was “inconsistent with the federal government’s
determination that [he] is disabled and eligible for Social
Security Disability benefits.” AR, at D 000193. He also
described his visual impairments and explained that they were
the cause of Ametek’s decision to terminate his employment as a
5 machinist. Finally, he noted his long career as a machinist and
argued that he did not have the education, training, or
experience to perform office work such as the occupation of
assignment clerk.
Aetna affirmed its decision to terminate Hopper’s LTD
benefits. Its decision rationale provides, in pertinent part:
A[n] Opthamology [sic] Peer Review of claimant’s medical file was completed 09/08/2014 and the findings with regard to claimant’s functional impairments were that claimant would be precluded from working with machinery as well as performing fine detail work. Claimant would be able to work full-time in a clean office environment, however, his eye impairments would preclude [him] from performing activities requiring a binocular visual acuity better than 20/40, depth perception, and bilateral peripheral vision. Claimant sent in documentation for his appeal on 07/29/2014 which did not provide any new information involving claimant’s eyes. The information was followed by a report dated 07/30/2014 by Erin Fogle, Opthamologist [sic] which did not note any change in claimant[’]s eye conditions since 2013 and noted claimant is functional for activities of daily living. The report of Dr. Fogle notes that it is very difficult for claimant to carry out any kind of work that would require good depth perception or to work in a dusty or dirty environment.
A TSA/LMA was performed on 01/28/14 finding that the occupation of Assignment Clerk was a reas[o]nable alternative occupation which claimant could perform . . . . Claimant’s Appeal notes that in addition to his visual restrictions, claimant has dyslexia and poor spelling with no background working in an office environment. Further inquiry to VRCS was requested as a result of functional limitations as stated in a Peer Review of claimant’s file. It was noted [b]y VRCS
6 that claimant has obtained his GED, stated he has taken some college level courses and has been a state legislator for almost 4 years. The visual functional limitations and spelling limitati[o]ns could be addressed with 1. a hands free magnifier, 2. pc screen magnifier, 3. a stand-alone screen magnifier 4. magnifier/screen reader or 5. zoom text software. All of these devi[c]es could be considered reasonable accommodations for the identified occupation of Assignment Clerk.
AR, at D 001067.
This action followed. In it, Hopper asserts two claims
under ERISA (Counts I and II), along with a claim for breach of
contract (Count III), and a claim for a declaratory judgment
(Count IV). Count I is Hopper’s claim that Aetna violated ERISA
by terminating his LTD benefits. Count II is Hopper’s claim
that Aetna violated ERISA by failing to give him a reasonable
opportunity for a full and fair review of its decision to
terminate his benefits.
II. Discussion
Both parties have moved for judgment on the administrative
record. Neither motion expressly indicates the count or counts
to which it applies, but both parties limit themselves to
discussing Hopper’s claim that Aetna violated ERISA by
terminating his LTD benefits. So, too, will the court limit
itself to the claim Hopper asserts in Count I.
7 The next order of business is setting out the standard of
review. The court of appeals for this circuit has explained
that “in an ERISA benefit-denial context, ‘the district court
sits more as an appellate tribunal than as a trial court.’”
Cusson v. Liberty Life Assur. Co. of Bos., 592 F.3d 215, 224
(1st Cir. 2010) (quoting Leahy v. Raytheon Co., 315 F.3d 11, 18
(1st Cir. 2002)). Thus, “[i]n an ERISA benefit denial case,
trial is usually not an option,” Leahy, 315 F.3d at 17-18, as
the district court “does not take evidence, but, rather,
evaluates the reasonableness of an administrative determination
in light of the record compiled before the plan fiduciary,” id.
(citing Recupero v. N.E. Tel. & Tel. Co., 118 F.3d 820, 831 (1st
Cir. 1997); Perry v. Simplicity Eng’g, Div. of Lukens Gen.
Indus., Inc., 900 F.2d 963, 967 (6th Cir. 1990)).
That said, “where an ERISA plan delegates to the plan
administrator the discretion to construe the plan and determine
eligibility for benefits under its provisions, a decision made
under the plan will be upheld unless it was ‘arbitrary,
capricious, or an abuse of discretion.’” Niebauer v. Crane &
Co., 783 F.3d 914, 922-23 (1st Cir. 2015) (quoting Cusson, 592
F.3d at 224); see also Metro. Life Ins. Co. v. Glenn, 554 U.S.
105, 111 (2008) (citing Firestone Tire & Rubber Co. v. Bruch,
8 489 U.S. 101, 111 (1989)). A decision by a plan administrator
passes muster under this standard if it is “reasoned and
supported by substantial evidence.” Ortega-Candelaria v.
Johnson & Johnson, 755 F.3d 13, 20 (1st Cir. 2014) (quoting
Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack
Anesthesia Assocs. Long Term Disability Plan, 705 F.3d 58, 62
(1st Cir. 2013)). “Evidence is deemed substantial when it is
reasonably sufficient to support a conclusion.” Niebauer, 783
F.3d at 928 (quoting Ortega-Candelaria, 755 F.3d at 20).
The plan that covers Hopper gives Aetna the degree of
discretion that engenders deferential review by this court.1
“Thus, the question before [the court] is not which side is
right.” Niebauer, 783 F.3d at 928. Rather, the question is
whether Aetna’s decision to terminate Hopper’s LTD “benefits was
reasonable on the record before it.” Id. Hopper argues that
Aetna’s decision was neither reasoned nor supported by
substantial evidence. The court does not agree.
In its letter of January 29, 2014, in which it informed
Hopper of its decision that he was not disabled from performing
1 To the extent that Hopper argues that a less deferential standard of review applies, he is mistaken. See Cusson, 592 F.3d at 224 (citing Metropolitan Life, 554 U.S. at 115).
9 any reasonable occupation, Aetna explained how it determined
Hopper’s work capacity and how it determined that Hopper’s work
capacity permitted him to perform the occupation of assignment
clerk. It also cited medical reviews by both an ophthalmologist
and a dermatologist, and cited an analysis performed by a
vocational rehabilitation consultant. Finally, the January 29
letter acknowledged Hopper’s receipt of Social Security
disability insurance benefits, and explained why it accorded
little weight to that fact. Similarly, after Hopper appealed
the January 29 decision, Aetna provided a detailed decision
rationale that explained why it denied Hopper’s appeal. That
decision rationale, in turn, discussed both the results of an
additional review of Hopper’s file by an ophthalmologist and
Aetna’s consideration of information provided by Hopper’s
treating ophthalmologist. Based upon the foregoing, the court
has no difficulty concluding that Aetna’s decision was both
reasoned and supported by substantial evidence.
Hopper’s argument to the contrary consists of claims that
the record is replete with medical opinions that he is disabled
from any work, that Aetna erred by giving little weight to those
opinions while giving great weight to the opinions of its own
medical experts, and that the opinion by Dr. Osowski on which
10 Aetna relied, is internally inconsistent. Those arguments are
not persuasive.
To begin, the favorable medical opinions on which Hopper
relies are not mentioned in the parties’ Joint Statement of
Material Facts, and Hopper’s argument on this point includes no
citations to the administrative record, notwithstanding the fact
that, as the claimant, he “bears the burden of providing
evidence that he is disabled within [his] plan’s definition.”
Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d 693, 700
(1st Cir. 2007) (citing Wright v. R.R. Donnelley & Sons Co. Grp.
Benefits Plan, 402 F.3d 67, 77 (1st Cir. 2005)). Second, as to
Aetna’s alleged disregard of Hopper’s treating physician’s
opinions, those opinions are entitled to no special weight. See
Ortega-Candelaria, 755 F.3d at 20 (citing Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003); Medina v.
Metro. Life Ins. Co., 588 F.3d 41, 46 (1st Cir. 2009)).
“Moreover, so long as substantial evidence supports the plan
administrator’s decision, the decision is not rendered
unreasonable by the mere existence of evidence to the contrary.”
Ortega-Candelaria, 755 F.3d at 20. That is, “in the presence of
conflicting evidence, it is entirely appropriate for a reviewing
court to uphold the decision of the entity entitled to exercise
11 its discretion.” Niebauer, 783 F.3d at 929 (quoting Gannon v.
Metro. Life Ins. Co., 360 F.3d 211, 216 (1st Cir. 2004)).
Finally, Aetna’s reliance upon Dr. Osowsky’s opinion does
not undermine its decision. Hopper argues that the vision
problems Dr. Osowsky identified preclude him from working as an
assignment clerk. Dr. Osowsky did indeed focus on Hopper’s
visual impairments and opine that they precluded him from
certain kinds of work:
The claimant’s corrected visual acuity on 10/16/13 was Hand Motion (right) and 20/40 (left) with no improvement noted on the examination of 3/24/14. He is by definition legally blind in the right eye and the absence of peripheral vision in the right eye as well as a lack of depth perception would preclude him from working with machinery as well as performing fine detail work for the time period noted.
AR, at D 000191. Then, in response to a question asking whether
Hopper’s eye impairments would preclude him from full-time work
in a clean office environment, Dr. Osowsky opined:
Mr. Hopper would be able to work full-time in a clean office environment, however his eye impairments would preclude him from performing activities requiring a binocular visual acuity better than 20/40, depth perception, and bilateral peripheral vision.
AR, at D 000192. There is no internal inconsistency in Dr.
Osowsky’s opinion, and Hopper has provided no support for the
12 proposition that the visual impairments Dr. Osowsky identified
would preclude him from working as an assignment clerk.
In sum, Aetna’s decision to terminate Hopper’s LTD benefits
was both reasoned and supported by substantial evidence. That
ruling would appear to foreclose any contention that Aetna’s
decision was an abuse of discretion. However, in his argument
for a less deferential standard of review, Hopper advances
several criticisms of Aetna’s decision that could be construed
as claims that Aetna abused its discretion in deciding to
terminate his benefits. In the interest of completeness, the
court turns briefly to those criticisms.
First, Hopper points to Aetna’s first termination letter as
an indication of bias against him. If Aetna’s initial denial of
benefits was the result of impermissible motivations, that
decision was rescinded. Any error in Aetna’s initial decision,
even if ill-intentioned, has no bearing upon whether its
subsequent decision to terminate Hopper’s benefits was an abuse
of discretion.
Hopper also argues that it was impermissible for Aetna to
base its decision to terminate his benefits upon his ability to
do a job that he could only perform with accommodations for his
visual impairment. However, in Terry v. Bayer Corp., the court
13 of appeals explained that it was permissible for a benefits
committee to factor in a claimant’s ability to work with
accommodations when determining that the claimant was “no longer
unable to perform any job for which [he was] qualified by
education, training, or experience.” 145 F.3d 28, 41 (1st Cir.
1998) (internal quotation marks omitted).
Next, Hopper criticizes Aetna for the way in which it
handled the fact that he had been awarded Social Security
disability benefits. As a preliminary matter, Hopper is
incorrect in his assertion that Aetna disregarded his award of
Social Security benefits; Aetna expressly mentioned that award
in its letter of January 29, 2014. See AR, at D 000761.
Moreover, “benefits eligibility determinations by the Social
Security Administration are not binding on disability insurers.”
Morales-Alejandro, 486 F.3d at 699 (quoting Pari-Fasano v. ITT
Hartford Life & Accident Ins. Co., 230 F.3d 415, 420 (1st Cir.
2000)).
In Metropolitan Life, the court of appeals did determine
that the manner in which a plan administrator considered the
claimant’s Social Security benefits to be a factor that weighed
against upholding a decision to terminate plan benefits, but the
circumstances of that case are far different from the
14 circumstances here. In Metropolitan Life, the plan
administrator first urged the claimant to apply for Social
Security benefits and tell the Social Security Administration
that she was unable to work, and then denied her application for
LTD benefits on grounds that she could work. According to the
court, MetLife’s two-faced stance was a concrete expression of
its inherent conflict of interest. Here, Hopper mentions his
receipt of Social Security disability insurance benefits, but
identifies no evidence that Aetna took the same stance as the
plan administrator in Metropolitan Life. Thus, the court
concludes that Aetna’s handling of Hopper’s receipt of Social
Security benefits was not an abuse of its discretion.
Finally, in his argument for a less deferential standard of
review, Hopper points out, correctly, that Aetna is operating
under a conflict of interest created by its role as both the
evaluator of claims for benefits and the entity that pays those
claims. See Metropolitan Life, 554 U.S. at 112 (explaining that
when “a plan administrator both evaluates claims for benefits
and pays benefits claims [that] creates [a] conflict of
interest”) (internal quotation marks omitted).
Aetna’s conflict of interest does not change this court’s
standard of review. See Metropolitan Life, 554 U.S. at 115.
15 But, “[i]f a benefit plan gives discretion to an administrator
or fiduciary who is operating under a conflict of interest, that
conflict must be weighed as a factor in determining whether
there is an abuse of discretion.” Metropolitan Life, 554 U.S.
at 111 (quoting Firestone, 489 U.S. at 115) (emphasis and
internal quotation marks omitted). As to how that factor should
be weighed, the Court declined “to create special burden-of-
proof rules, or other special procedural or evidentiary rules,”
id. at 116, or to issue “a detailed set of instructions,” id. at
119. Rather, it counseled courts to consider a conflict of
interest as one of many factors, and to do so on a case-specific
basis. See id. at 116-19.
Here, Aetna’s conflict of interest is not a significant
factor. As the court has already explained, Aetna’s decision to
terminate Hopper’s LTD benefits was both reasoned and supported
by substantial evidence. In other words, that decision reflects
a supportable appraisal of Hopper’s claim, not Aetna’s conflict
of interest. Moreover, Hopper bears the burden of showing not
just that a conflict existed, but that it influenced Aetna’s
decision. See Cusson, 592 F.3d at 225 (citing Terry, 145 F.3d
at 34). He has not done so.
16 Hopper’s principal argument is that this case is analogous
to Metropolitan Life, but it is not. All that the two cases
have in common is a plan administrator with a conflict of
interest. The other factors identified by the court of appeals
in Metropolitan Life, see 554 U.S. at 118, such as MetLife’s
role in its claimant’s application for Social Security benefits,
are just not present here. Accordingly, the court concludes
that while Aetna was under a conflict of interest, that conflict
was not a significant factor in its decision to terminate
Hooper’s LTD benefits, and was clearly not a factor that
rendered its decision an abuse of discretion.
III. Conclusion
For the reasons described above, Aetna’s motion for
judgment on the record, document no. 15, is granted, and
Hopper’s motion for judgment on the record, document no. 13, is
denied. Thus, Aetna is entitled to judgment in its favor on
Count I. That, however, is not the end of this case, as the
parties’ motions address only Count I of Hopper’s complaint.
Accordingly, Hopper shall have ten (10) days from the date of
this order to inform the court whether he wishes to proceed on
17 the remaining counts, and Aetna shall have ten (10) days to
respond.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
October 5, 2015
cc: Byrne J. Decker, Esq. Scarlett L. Freeman, Esq. John Houston Pope, Esq. Tony F. Sontani, Esq.