Valentine v. Aetna Life Insurance
This text of 125 F. Supp. 3d 425 (Valentine v. Aetna Life Insurance) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff Carol Valentine (“plaintiff’) brings this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), challenging the termination of her long-term disability (“LTD”) benefits by defendant Aetna Life Insurance Company (“Aetna,” or “defendant”). Plaintiff was employed by Hubbard Broadcasting (“Hubbard”), where she was a participant in an LTD policy administered by Aetna (the “Plan”), until she allegedly became disabled under the provisions of the Plan due to a trigeminal nerve disorder. Plaintiff now challenges Aetna’s partial rejection of her claim for LTD benefits. Specifically, plaintiff alleges that Aetna’s finding that plaintiffs disability ended on June 30, 2012, and its resultant decision to terminate her benefits subsequent to that date was arbitrary and capricious.
Plaintiff and defendant now both move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant moves for summary judgment on the grounds that sufficient evidence in the record supports defendant’s decision to deny plaintiff benefits in addition to those benefits already provided. Plaintiff cross-moves for summary judgment, asserting that the evidence in the record establishes that plaintiff had an ongoing disability, or in the alternative for a remand to the plan administrator for reconsideration of her claim. For the reasons set forth below, [429]*429the Court denies defendant’s motion, and grants plaintiff’s motion to the extent that plaintiffs claim is remanded to Aetna for reconsideration.
I. Background 1
A. The Plan
The Plan is an employee welfare benefit plan governed by ERISA. (“ERISA Rights,” VAL 38-39.) Hubbard established and maintains the Plan to provide LTD benefits to eligible employees, and Aetna acts as the Plan’s claims administrator. (Id.)
1. Discretionary Authority
The Plan provides that:
Under Section 503 of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Aetna is a fiduciary. It has complete authority to review all denied claims for benefits under this policy. In exercising such fiduciary responsibility, Aetna shall have discretionary authority to:
• Determine whether and to what extent employees and beneficiaries are entitled to benefits; and
• Construe any disputed or doubtful terms of this policy.
Aetna shall be deemed to have properly exercised such authority. It must not abuse its discretion by acting arbitrarily and capriciously. Aetna has the right to adopt reasonable:
• policies;
• procedures;
• rules; and
• interpretations;
Of this policy to promote orderly and efficient administration.
(“Policyholder and Insurance Company Matters” at “ERISA Matters,” VAL 105.)
2. Eligibility for LTD Benefits
The Plan provides that
From the date that you first become disabled and until Monthly Benefits are payable for 24 months, you will be deemed to be disabled on any day 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 pre-disability earnings.
After the first 24 months that any Monthly Benefit is payable during a period of disability, you will be deemed to be disabled on any day if you are not able to work at any reasonable occupation solely because of:
• Disease; or
• Injury.
(“Long Term Disability Coverage” at “Test of Disability,” VAL 4 (emphasis in original).) The Plan further states that:
A period of disability starts on the first day you are disabled as a direct result of a significant change in your physical or mental condition occurring while you are insured under this Plan. You must be under the regular care of a physician. (You will not be deemed to be under the regular care of a physician more than 31 days before the date he or she has seen and treated you in person for the disease or injury that caused the disability.)
[430]*430Your period of disability ends on the first to occur of:
• The date Aetna finds you are no longer disabled or the date you fail to furnish proof that you are disabled ....
• The date an independent medical exam report or functional capacity evaluation fails to confirm your disability....
(“Long Term Disability Coverage” át “A Period of Disability,” VAL 5 (emphasis in original).)
The Plan further provides that benefits are “payable after the elimination period ends for as long as the period of disability continues.” (“Long Term Disability Coverage” at “When Benefits Are Payable,” VAL 5.) The elimination period under the Plan is 180 days. (“Disability Coverage” at “Long Term Disability Benefits,” VAL 33.) ■
B. Plaintiffs Disability
Valentine was employed by Reelz .TV, an affiliate of Hubbard, as a Director of Ad Sales Planning starting on or about December 1,2008, until her last day of work on November 15, 2011. (VAL 729.) Plaintiffs salary at the end of her employment was approximately $225,000 plus commissions, amounting to gross pay of $316,868.56 in 2011. (Id, at 490, 722.) Plaintiffs job description reflects that some of her duties were to conduct negotiations on advertising time, create marketing platforms, maintain current business while “aggressively” seeking new business, interact with clients/agencies and account executives including entertaining them at industry events, present competitive research, and travel out of town. (Id, at 652-53.) It also notes that her position required “average sitting, standing, and office-type movement,” the “ability to stand and present to a group for many hours,” the “ability to travel- via taxi, bus, personal car, commercial airline' & train,” and “average lifting, moving and pulling abilities.” (Id. at 653.)
On or about April 4, 2012, Valentine filed a claim for LTD benefits claiming to be disabled and unable to work as of December 14, 2011 due to symptoms related to her diagnosis of a “trigeminal nerve disorder, unspecified” originally caused by an injury to her trigeminal nerve during a root canal in February 2010. (Id.
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MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff Carol Valentine (“plaintiff’) brings this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), challenging the termination of her long-term disability (“LTD”) benefits by defendant Aetna Life Insurance Company (“Aetna,” or “defendant”). Plaintiff was employed by Hubbard Broadcasting (“Hubbard”), where she was a participant in an LTD policy administered by Aetna (the “Plan”), until she allegedly became disabled under the provisions of the Plan due to a trigeminal nerve disorder. Plaintiff now challenges Aetna’s partial rejection of her claim for LTD benefits. Specifically, plaintiff alleges that Aetna’s finding that plaintiffs disability ended on June 30, 2012, and its resultant decision to terminate her benefits subsequent to that date was arbitrary and capricious.
Plaintiff and defendant now both move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant moves for summary judgment on the grounds that sufficient evidence in the record supports defendant’s decision to deny plaintiff benefits in addition to those benefits already provided. Plaintiff cross-moves for summary judgment, asserting that the evidence in the record establishes that plaintiff had an ongoing disability, or in the alternative for a remand to the plan administrator for reconsideration of her claim. For the reasons set forth below, [429]*429the Court denies defendant’s motion, and grants plaintiff’s motion to the extent that plaintiffs claim is remanded to Aetna for reconsideration.
I. Background 1
A. The Plan
The Plan is an employee welfare benefit plan governed by ERISA. (“ERISA Rights,” VAL 38-39.) Hubbard established and maintains the Plan to provide LTD benefits to eligible employees, and Aetna acts as the Plan’s claims administrator. (Id.)
1. Discretionary Authority
The Plan provides that:
Under Section 503 of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Aetna is a fiduciary. It has complete authority to review all denied claims for benefits under this policy. In exercising such fiduciary responsibility, Aetna shall have discretionary authority to:
• Determine whether and to what extent employees and beneficiaries are entitled to benefits; and
• Construe any disputed or doubtful terms of this policy.
Aetna shall be deemed to have properly exercised such authority. It must not abuse its discretion by acting arbitrarily and capriciously. Aetna has the right to adopt reasonable:
• policies;
• procedures;
• rules; and
• interpretations;
Of this policy to promote orderly and efficient administration.
(“Policyholder and Insurance Company Matters” at “ERISA Matters,” VAL 105.)
2. Eligibility for LTD Benefits
The Plan provides that
From the date that you first become disabled and until Monthly Benefits are payable for 24 months, you will be deemed to be disabled on any day 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 pre-disability earnings.
After the first 24 months that any Monthly Benefit is payable during a period of disability, you will be deemed to be disabled on any day if you are not able to work at any reasonable occupation solely because of:
• Disease; or
• Injury.
(“Long Term Disability Coverage” at “Test of Disability,” VAL 4 (emphasis in original).) The Plan further states that:
A period of disability starts on the first day you are disabled as a direct result of a significant change in your physical or mental condition occurring while you are insured under this Plan. You must be under the regular care of a physician. (You will not be deemed to be under the regular care of a physician more than 31 days before the date he or she has seen and treated you in person for the disease or injury that caused the disability.)
[430]*430Your period of disability ends on the first to occur of:
• The date Aetna finds you are no longer disabled or the date you fail to furnish proof that you are disabled ....
• The date an independent medical exam report or functional capacity evaluation fails to confirm your disability....
(“Long Term Disability Coverage” át “A Period of Disability,” VAL 5 (emphasis in original).)
The Plan further provides that benefits are “payable after the elimination period ends for as long as the period of disability continues.” (“Long Term Disability Coverage” at “When Benefits Are Payable,” VAL 5.) The elimination period under the Plan is 180 days. (“Disability Coverage” at “Long Term Disability Benefits,” VAL 33.) ■
B. Plaintiffs Disability
Valentine was employed by Reelz .TV, an affiliate of Hubbard, as a Director of Ad Sales Planning starting on or about December 1,2008, until her last day of work on November 15, 2011. (VAL 729.) Plaintiffs salary at the end of her employment was approximately $225,000 plus commissions, amounting to gross pay of $316,868.56 in 2011. (Id, at 490, 722.) Plaintiffs job description reflects that some of her duties were to conduct negotiations on advertising time, create marketing platforms, maintain current business while “aggressively” seeking new business, interact with clients/agencies and account executives including entertaining them at industry events, present competitive research, and travel out of town. (Id, at 652-53.) It also notes that her position required “average sitting, standing, and office-type movement,” the “ability to stand and present to a group for many hours,” the “ability to travel- via taxi, bus, personal car, commercial airline' & train,” and “average lifting, moving and pulling abilities.” (Id. at 653.)
On or about April 4, 2012, Valentine filed a claim for LTD benefits claiming to be disabled and unable to work as of December 14, 2011 due to symptoms related to her diagnosis of a “trigeminal nerve disorder, unspecified” originally caused by an injury to her trigeminal nerve during a root canal in February 2010. (Id. at 107-108, 120, 122.) Plaintiff alleged that her symptoms (which increased in November 2011 after' another dental procedure)'in combination with side effects from prescribed medication included “daily persistent headache” and “fatigue/ diminished memory, poor • concentration, clouded thought combined with constant ■ pain,” causing her neurocognitive effects which limited her work performance. (Id. at 120-22.)
Plaintiffs treating physician for her allegedly disabling condition during this period was Dr. David Sirois, DMD, PhD, a specialist in cranial nerve injuries.2 (Id. at 107, 122.) Dr. Sirois submitted an Attending Physician Statement (“APS”) in support of plaintiffs LTD claim, dated March [431]*43130, 2012. (Id. at 731-32.) In it, Dr. Sirois stated that plaintiff “suffers .from constant moderate to severe head and facial pain which has also resulted in an unusual pattern of pain and dysesthesia affecting .the back, occipital and upper extremity.” (Id. at 731.) In addition to the neurocognitive issues, Dr. Sirois stated plaintiff exhibited objective symptoms of “diminished strength and widespread mechanical allodynia.”3 (Id.) Overall, he found that plaintiff was “disabled from her usual work activity.” (Id.)
Dr. Sirois noted that, although he had noted mild improvement with treatment, “overall the prognosis is poor in that her condition is permanent and symptoms will remain to some degree indefinitely.” (Id.) Dr. Sirois stated, “There is no objective test to prove or otherwise quantify her pain condition and I must rely on her self-report of limitations.” (Id.) He also noted that he had prescribed plaintiff a number of medications, and that the side effects of those medications were part of plaintiffs disability, though as plaintiffs treatment evolved he planned to adjust her medications to ameliorate those effects. (Id.) Dr. Sirois concluded that plaintiffs prognosis would be clearer after six months of further treatment, i.e. through September 2012, and that he “reasonably expect[ed] she would remain disabled” during that period. (Id.) Dr. Sirois concurrently noted on the Aetna APS form that plaintiffs disability began on December 14, 2011. and would be continue “indefinitefly] pending outcome to ongoing treatment.” (Id. at 732.)
C. Initial Denial of Plaintiffs Claim
Aetna claim analyst Elizabeth Wing conducted a phone interview with plaintiff on April 16,2012, after which she referred the claim to a nurse consultant, Jeanette Stehly, for a review. . (Id. at 121-26.) Stehly reviewed plaintiffs records and concluded that her claim should, be denied, finding that Dr. Sirois' APS indicated plaintiff “can work sedentary and he has not imposed restrictions yet it seems he is saying she is impaired.”4 (Id.' at 125.) Stehly stated that Dr.-Sirois did not provide sufficient-“exam findings, diagnostics, etc. to support inability to perform job duties,” and questioned how a trigeminal neuralgia could cause plaintiffs symptoms.' (Id.)
-After requesting and receiving further information from Valentine, including the older evaluations from Dr. Loria, and Dr. Snyder, Wing conducted a phone interview with Dr. Sirois on May 14, 2012. (Id. at 152-53, 157.) During the interview, Dr. Sirois averred that his original APS was intended' to state that plaintiff was disabled due to illness and pain, and that he would fill out a new APS if it would be helpful; though some of her symptoms (the diminished memory and poor concen-' tration) were based on “self reports” and not on formal' or structured testing, Dr: Sirois said he believed plaintiffs complaints, and that both the distraction caused by her illness/pain and the medications would cause her “fogged memory and difficulties in thought process.” (Id. at 157.) The file was then referred back to Stehly, who again found that the records submitted were insufficient to support a finding of a functional impairment, pointing to the “highly subjective” nature of the claim and the lack of examination results to support a finding that plaintiff was un[432]*432able to perform physical work. (Id. at 163.)
Defendant then referred plaintiffs claim file to an outside vendor for the retention of an independent medical record peer review physician consultant (“IPC”). (Id. at 34348.) The IPC for the initial review of plaintiffs claim was Dr. Choon Rim, a neurologist. (Id.) Following a review of the records and a conversation with Dr. Sirois,5 Dr. Rim, echoing Stehly, found that plaintiffs records did not support a finding of a functional impairment because her self-reported symptoms of pain and cognitive dysfunction “do not translate into functional impairments,” and she was “not restricted from working her own medium level occupation.” (Id. at 347.) Dr. Rim suggested that a “formal neuropsychological test would be helpful for the continued evaluation of the claimant’s proclaimed functional impairments related to cognitive deficits.” (Id. at 348.)
Defendant subsequently notified plaintiff by letter dated May 29, 2012, that her claim for LTD benefits had been denied.6 (Id. at 220-21.) Plaintiff was advised that she was entitled to appeal her claim, and that she could submit in support, among other things, “a detailed narrative report for the period 11/15/2011 to the present outlining the specific physical and/or mental limitations related to your condition that your doctor has placed on you as far as gainful activity is concerned, physician’s prognosis, including course of treatment, frequency of visits, and specific medications prescribed,” and “diagnostic studies conducted during the above period, such as test results, X-rays, laboratory data, and clinical findings.” (Id. at 221.)
D. Plaintiffs Appeal of the Initial Claim Denial
Plaintiff, via her counsel, filed an appeal letter on November 5, 2012, arguing that Aetna failed to “fully address the vocational limitations caused by [plaintiffs] medical condition which manifests in chronic pain and causes [plaintiff] significant diminution of her ability to concentrate, requires her to take unscheduled breaks and whole or partial days off, and negatively affects her ability to deal with stress and interact with others. It is our contention that [plaintiffs] medically determinable condition causes severe pain which precludes her ability to return to the highly skilled and highly stressful executive position she had for Hubbard and has required her to attempt a less stressful and skilled position.” 7 (Id. at 355-59.) On December 3, [433]*4332012, plaintiff submitted a supplementary-appeal letter, attaching additional supporting records and documents. (Id. at 416-25.) The documents included, among other things: an updated narrative report from Dr. Sirois dated November 29, 2012 (id. at 497-501) and his supporting office visit notes (id. at 508-26); a report prepared by a retained vocational expert, Andrew Pasternak, M.A., CRC (id. at 461-67); a sworn affidavit from plaintiff dated November 30, 2012, describing her symptoms and physical limitations (id. at 457-59); and various Internet articles regarding plaintiffs condition. (Id. at 43855.)
Dr. Sirois’ narrative summarized his treatment of plaintiff from March 28, 2012 (the date of the visit prior to the completion of his previous APS form) onward, including synopses of his visit notes. He stated, since beginning treatment, plaintiff had experienced:
... an approximate 50% reduction in overall pain intensity. However, she still experiences frequent episodes of intense flaring pain. In addition to pain in the upper right oral quadrant and face, she also experiences: dysmorphic phantom sensations, hyperacusis, extreme sensitivity to environmental stimuli (touch, sound), occipital pressure pain, and weakness/dysesthesia of the right arm— She is taking several medications ... and experiences predictable side effects which additionally impair her quality of life and her ability to work, including: fatigue, sleepiness, dizziness, disorientation, cognitive impairment (reduced concentration, memory, focus); less able to multi-task and to manage complex decision making.
(Id. at 500.) Dr. Sirois’ narrative and office notes reflect that, although plaintiff showed signs of improvement, during each of her full medical examinations (on March 28, May 23, July 11, August 28, September 19, and November 21) plaintiff consistently exhibited the objective symptom of mechanical allodynia, as well as the other subjective symptoms and side effects. (Id. at 497-501.) For example, on September 19, plaintiff informed Dr. Sirois that she continued to experience “global improvement,” but also that she suffered from “flaring symptoms,” including an episode of the worst occipital pressure she had ever suffered, as well as a new “right foot numbness every other day [associated] with night time dysesthesia lasting ~2 hours.” (Id. at 499.) Plaintiffs medications continued to cause the same side effects of dizziness, fogginess, and diminished concentration. (Id. at 497-500.)
Dr. Sirois also listed plaintiffs restrictions, which he stated were in large part “self-reported by Ms. Valentine and have not been formally assessed/tested. However, her limitations are entirely consistent with her pain and medications, and in my years of experience as a recognized expert in persistent neuropathic pain are accurate and credible. Additionally, some of her most impactful symptoms (pain, impaired cognitive performance, hypersensitivity to environmental stimuli) have no objective, validated method of assessment.” (Id. at 501.) Dr. Sirois stated plaintiff should be restricted in, among other things, her exertion (limits on her ability to lift things above ten pounds or over her shoulders including a computer bag, or walk/stand due to dizziness or disorientation), manual dexterity (limits on her right arm to conduct tasks such as grasping, holding, and writing), and her participation in “high-pressure situations which require quick decision making, complex decision making, and multi-tasking ... due to medication side effects or as the direct result of her pain/sensory symptom intensity.” (Id.) Overall, Dr. Sirois stated that:
[434]*434[I]n my experience [plaintiff! ] will continue current treatment in principal for several years. She has a permanent (lifetime) risk for her neuropathic symptoms to resume/continue. I predict that she will continue to improye during next 3-4 years to a point of significant pain and medication reduction that results in minimal impact on quality of life and work performance, and may always experience transient pain flares that resolve spontaneously or following medication adjustment.
(Id. at 500.)
The report from vocational expert Pasternak, dated November 4, 2012, largely aligned with Dr. Sirois’ assessment. Pasternak interviewed plaintiff by phone and in person, reviewed her medical reports, and conducted research in recognized vocational resources. (Id. at 461-62.) Pasternak also reviewed plaintiffs new employment, which he described as having fewer responsibilities, including being under the supervision of someone occupying a position comparable- to plaintiffs old job at Hubbard. (Id. at 465.) In sum, Pasternak found that plaintiff was “incapable of performing the duties of her former position as a Vice President of Sales/Marketing,” given her moderate to severe restrictions in a number of areas, including the. ability to maintain attention and concentration and to perform simple or complex tasks repetitively oyer a period .of time. (Id. at 466.) Pasternak attributed this to plaintiffs chronic pain and its cognitive effects, her “Type A” personality, and the “ex-, tremely stressful and stress-producing” nature of her position at Hubbard. (Id. at 466-67.)
Plaintiffs affidavit further elaborated on the symptoms she allegedly was experiencing day-to-day. In particular, plaintiff de-' scribed that the “neuralgia and permanent nerve damage” she had suffered and the side effects of the multiple medications she was taking caused her to have sensitivity to atmospheric noise or voices on the phone; sensitivity to touch, causing difficulty in traveling; inability to focus, and headaches when she attempts to work on one task for an extended period; effects on memory; drowsiness; and extreme pain. (Id,- at 457-58.) Plaintiff noted that she had returned to work in a lesser capacity than her previous position, but that she was unsure if she would be able to continue due to her condition. (Id. at 458-59.)
E. Defendant Partially Reverses the Initial Denial of the Claim
After receiving plaintiffs submitted records and examination reports, defendant again referred plaintiffs file to another IPC, Dr. Stuart Rubin, who is certified in Physical Medicine and Rehabilitation. (Id. at 280,283.) Dr. Rubin reviewed the claim record and called Dr. Sirois on three occasions to conduct a peer-to-peer consultation, but was unable to reach him, and Dr. Sirois did not return the calls.8 (Id. at 282.)
Notably, the “brief claim synopsis” section of the report describes the full contents of plaintiffs claim file as reviewed by Dr. Rubin, including Dr. Sirois’ letter of November 29, 2012 and his office visit notes through September 29, 2012 (id. at 280-81), but Pasternak’s report and plaintiffs affidavit are not listed. Further, in Dr. Rubin’s description of his “clinical file review,” he outlines plaintiffs medical his[435]*435tory based on his review of plaintiffs file, but only through March 30, 2012.9 (Id. at 281-82.) Dr. Rubin does not at any point in his IPC report reference Pasternak’s vocational expert report, Dr. Sirois’ November 29, 2012 narrative, or any of the examinations Dr. Sirois conducted of-plaintiff subsequent to March 30, 2012. Dr. Rubin’s summary of plaintiffs medical history ends with a rundown of plaintiffs March 30, 2012 office visit, and what appears to be a summary of Dr. Sirois’ prior APS narrative, issued that same day. (Id. at 281-82.)
Dr. Rubin issued his report on January 30, 2013, and concluded that the records and examinations supported a finding of plaintiffs functional impairment from the initial date of the claim through June 30, 2012. (Id.) Specifically, Dr. Rubin found that the records showed that plaintiff was suffering from impairments including “chronic neuropathic pain affecting the face, allodynia, diminished neurocognition, diminished memory, and poor concentrar tion” from December 14, 2011 through March 30, 2012; Dr. Rubin, however, opined that “[i]t is reasonable that these impairments will continue for another three months through 6/30/12.” (Id.)
Dr. Rubin stated that “[fjunetional impairment is not supported from 7/1/12 through 8/19/12.10 The rationale for this is based on the paucity of records which describe the patient’s physical examinations, cognitive evaluations, dr functional examinations or correlation of such during the time period in question.” (Id.) Dr. Rubin noted that, during the period1 of functional impairment, claimant would not have been able to perform the “significant cognition demanding tasks” of her position at Hubbard “in an effective or safe manner.” (Id.) Dr. Rubin stated that the records reflected that plaintiffs medications-which she continued to be prescribed well through and after August 19, 2012, according to Dr. Sirois’ notes-were causing her side effects including “.poor cognition, poor memory, and decreased neurocognition and poor focus ability.” (Id. at 283.) ’■
Aetna allegedly mailed Dr. Rubin’s IPC report to Dr. Sirois on February 6, 2013, and- demanded that he review and respond to the report (including whether or not he agreed with the conclusions) within five calendar days. (Id. at 234.) Dr. Sirois did not respond. On March 1, 2013, defendant notified Valentine that it had decided to adopt the opinion of Dr. Rubin, partially overturn its previous denial of her claim and grant her benefits through June 30, 2012, noting that the IPC found that plaintiffs functional impairment was supported by the medical records through March 30, 2012, and it would have been reasonable to expect those impairments to continue only for another three months. (Id. at 237.) Defendant’s letter, which for the most part mirrors Dr. Rubin’s report, did not reference any of the medical examinations or reports from Dr. Sirois or Pasternak subsequent to March 30, 2012. The letter stated, “There is a lack of medical findings (i.e. examination findings as of July 1, 2012, cognitive evaluations, or functional examination or correlations, etc.) to support Ms. Valentine’s inability to perform [436]*436the material duties of her own occupation from July 1,2012 and onward.” (Id.)
II. Procedural History
Plaintiff filed the complaint on March 18, 2014. On April 25, 2014, defendant filed its answer. On October 22, 2014, defendant filed its motion for summary judgment. On November 21, 2014, plaintiff filed her cross-motion for summary judgment. Defendant filed its reply in support of its motion and opposition to plaintiffs motion on December 22, 2014. Plaintiff'filed her reply in support of her cross-motion on January 9, 2015. Defendant filed an additional reply in support of its motion to strike plaintiffs extra-record submissions on January 16, 2015. The Court heard oral argument on February 6, 2015. Defendant submitted a supplemental letter regarding ERISA’s requirements regarding the inclusion of certain language in the Plan on February 11, 2015. Plaintiff submitted a response on February 13, 2015. The matter is fully submitted.
III., Standard op Review ,
A. Summary Judgment
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court “is not to weigh the evidence but is instead required to view the evidence.in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).
Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts ... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth “concrete particulars” showing that a trial is. needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal . quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert a conclusion without supplying supporting arguments or facts.” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 11 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted).
B. Benefit' Determinations Under ERISA
A denial of benefits under ERISA “‘is to be reviewed under a de [437]*437novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 622 (2d Cir.2008) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). “If the insurer establishes that it has such discretion, the benefits decision is reviewed under [an] arbitrary and capricious standard.” Id.; see also Celardo v. GNY Automobile Dealers Health & Welfare Trust, 318 F.3d 142, 145 (2d Cir.2003) (“The Supreme Court ... has indicated that plans investing the administrator with broad discretionary authority to determine eligibility are reviewed under the arbitrary and capricious standard.”).
Here, the Plan explicitly affords defendant such discretionary authority.11 Therefore, the Court will apply the arbitrary and capricious standard in reviewing Aetna’s decision to deny plaintiff her full claim benefits as well as the appellate process Aetna provided plaintiff. See Zervos v. Verizon New York, Inc., 277 F.3d 635, 647-48 (2d Cir.2002) (affirming district court’s holding that insurer’s appellate process was “arbitrary and capricious”); see also Marasco v. Bridgestone/Firestone, Inc., No. 02-CV-6257, 2006 WL 354980, at *4 (E.D.N.Y. Feb. 15, 2006) (“Under ERISA, a plan administrator must provide an employee whose claim for benefits has been denied with a ‘full and fair review.’ 29 U.S.C. § 1133(2).. Failure to conduct a ‘full and fair review1 can be grounds for finding that a plan administrator’s decision was arbitrary and capricious.’”) (citing Crocco v. Xerox Corp., 137 F.3d 105, 108 (2d Cir.1998)).
In particular, according to the Second Circuit, an administrator’s decision is arbitrary and'capricious “if it was ‘without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ” Krauss, 517 F.3d at 623-24 (quoting Fay v. Oxford Health Plan, 287 F.3d 96, 104 (2d Cir.2002)). In particular, “[substantial evidence is ‘such evidence that a rea[438]*438sonable mind might accept as adequate to support the conclusion reached by the [administrator and] ... requires more than a scintilla but less than a preponderance.’ ” Celardo, 318 F.3d at 146 (quoting Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.1995)).
Thus, “[u]nder the arbitrary and capricious standard, the scope of judicial review is narrow.” Celardo, 318 F.3d at 146; see also Miller, 72 F.3d at 1070 (“When an employee benefit plan grants a plan fiduciary discretionary authority to construe the terms of the . plan, a district court must review deferentially a denial of benefits.... ”); Lee v. Aetna Life and Cas. Ins. Co., No. 05 Civ. 2960, 2007 WL 1541009, at *4 (S.D.N.Y. May 24, 2007) (“Under the arbitrary and capricious standard of review, Aetna’s decision to terminate benefits is . entitled to deference....”); Butler v. New York Times Co., No. 03 Civ. 5978, 2007 WL 703928, at *3 (S.D.N.Y. Mar. 7, 2007) (“Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one, A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a dear error of judgment.’ ” (quoting Bowman Transp. Inc. v. Ark-Best Freight Sys., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974))); Greenberg v. Unum Life Ins. Co. of America, No. 03-CV-1396, 2006 WL 842395, at *8 (E.D.N.Y. Mar. 27, 2006) (“Decisions of the plan administrator are accorded great deference: the court may not upset a reasonable interpretation by the administrator____Accordingly, it is inappropriate in this setting for- the trial judge to substitute his judgment for that of the plan administrator.”) (citations and quotation-marks omitted).
C. Role of the Administrative Record
“The legal standard for considering evidence outside the administrative record depends on the standard of review to be applied to the claim. For a de novo review of the administrator’s decision, ‘the district court ought not to accept additional evidence absent good cause.’ [Zervos, 277 F.3d at 646.] For a review under the ‘arbitrary and capricious’ standard, however, ‘a district court’s review ... is limited to the administrative record. Miller, 72 F.3d at 1071.” Parisi v. UnumProvident Corp., No. 03-CV-1425, 2007 WL 4554198, at *8 (D.Conn. Dec. 21, 2007); see Miller, 72 F.3d at 1071 (“We follow the majority of our sister circuits in * concluding that a district court’s review under the arbitrary and capricious standard is limited to the administrative record.”); Fitzpatrick v. Bayer Corp., No. 04 Civ. 5134, 2008 WL 169318, at *9 (S.D.N.Y. Jan. 17, 2008) (“In assessing whether the decision of the administrator was reasonable, the court may not consider extrinsic matters but must remain within the bounds of the administrative record considered by the plan’s decision-maker.”) (citation and . quotation marks omitted); Leccese v. Metro. Life Ins. Co., No. 05-CV-6345, 2007 WL 1101096, at *5 (W.D.N.Y. Apr. 12, 2007) (“The Second Circuit has considered whether a district court should consider evidence that was not before the plan administrator and' held that additional evidence may .be considered upon de novo review of-an issue of plan interpretation. However, since the parties agree that the standard of review in this case is arbitrary and capricious, the Court is limited to a review of the record as it existed before the plan administrator.”) (citations and quotation marks omitted); Nelson v. Unum Life Ins. Co. of Am., 421 F.Supp.2d 558, 572 (E.D.N.Y.2006) (“Thus, in determining whether Unum’s denial of benefits was arbitrary and capricious, it is proper to consider nothing more and nothing less than the administrative record.”), aff'd, 232 [439]*439Fed.Appx. 23 (2d Cir.2007); Gaboriault v. Int’l Bus. Machines Corp., No. 05-CV-91, 2006 WL 3304213, at *1 (D.Vt. Nov. 13, 2006) (“Where a plan grants the plan fiduciary such discretionary authority, the Court is required to limit its review of a denial of benefits to the administrative record — ”). Therefore, in analyzing whether Aetna’s decisions were arbitrary and capricious, the Court has confined its review to the administrative record,12
IV. Discussion
Defendant argues that its decision to deny plaintiff any benefits beyond June 30, 2012, was not arbitrary and capricious because plaintiff did not submit sufficient evidence, such as clinical findings or objective test results, to support' a functional impairment after that date.13 Plaintiff, on the other hand, argues that there, was ample evidence in the record, including consistent and clear clinical examination findings from Dr. Sirois and the Pasternak report,. to support a finding that plaintiff was disabled such that she could not perform the duties .of her position at Hubbard. Plaintiff argues, that defendant’s failure to address that evidence in its evaluation of her claim denied her a full and fair review.14
“It has long been the law of this Circuit that ‘the subjective element of pain is an important factor to be considered in determining disability.’ ” Connors v. Connecticut Gen. Life Ins. Co., 272 F.3d 127, 136 (2d Cir.2001) (quoting Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.1984)). [440]*440Although plan administrators adjudicating claims involving such inherently subjective disorders — and, in turn, courts reviewing challenges to denials of those claims — are not required to take such assertions of incapacity at face value, they may not dismiss them out of hand without adequate attention to the claimant’s complaints. In Miles v. Principal Life Ins. Co., the plaintiff-appellant, a partner in a law firm, claimed that he was forced to stop working due to “bilateral tinnitus (high frequency noises in both ears), intractable ear and head pain, and a feeling of disorientation.” 720 F.3d 472, 475-76 (2d Cir.2013). During the LTD insurance company’s initial review of the claim, it found that plaintiff-appellant’s complaints were almost entirely subjective, and two independent reviewing physicians hired by Principal, the defendant-appellee LTD insurance company, found that there was a lack of objective findings to support restrictions on work activities or neurological impairments. Id. at 479-80. Principal therefore initially denied the claim, informing Miles that if he were to appeal, he should provide “medical information, testing, and results to meet his burden of proof,” including such items as “[r]esults of cognitive testing with findings of the severity that they [sic] impact your ability to concentrate.” Id. at 481 (internal quotation marks omitted). Miles appealed the initial denial of his claim, and submitted additional medical records in support of his appeal, including updated reports and testing from his doctors as well as a report from a physical therapist and a new ear, nose, and throat specialist.15 Id. Principal again retained independent physicians to review the claim, who again found that — despite the diagnosis by Miles’ treating physicians based on their assessment of his subjective complaints as well as some objective findings such as “hearing loss” and “vestibular weakness” — the “objective data” in the record suggested that he had “no physical limitations or restrictions” and his “self-reported complaints cannot be explained by any known neurological condition.” Id. at 483-84 (emphasis in original). Principal therefore again denied the claim, and the district court upheld the denial of the claim, holding that Principal “(1) reasonably relied on Miles’s failure to demonstrate ‘restrictions and limitations’ as a basis to deny his claim; (2) did not err by failing to expressly state whether it credited Miles’s subjective complaints; and (3) reasonably required objective proof of a significant impairment.” Id. at 484-85.
The Second Circuit vacated the decision of the district court for several reasons. First, the Second Circuit found that Principal erred by failing to “give adequate attention to Miles’s subjective complaints, as it failed to either assign any weight to them or to provide specific reasons for its decision to discount them.” Id. at 486-88. The court of appeals found that Principal’s disregard for Miles’ subjective complaints solely because of their subjectivity, without any other valid reason to discount the evidence in the record, was arbitrary and capricious. Id. Second, the Second Circuit held that Principal’s request for objective evidence that Miles was suffering from tinnitus was unreasonable, given that Principal did not itself identify to the claimant any test which would provide conclusive, objective evidence of his impairment. Id. at 488-89. Third, the Second Circuit [441]*441found that Principal “failed to support many of its assertions with sound reasoning in the record and, in some instances, made assertions that are contradicted by the record.” Id. at 489-90. For example, Principal appeared to ignore aspects of the record which explained the uptick in the claimant’s symptoms before he left work and instead stated that he “failed to explain why he ceased work,” which the court found was “a selective reading of the record that is not reasonably consistent with the record as a whole.” Id. at 489. Therefore, the Second Circuit reversed the district court, and instructed it to return the matter to the plan administrator for reconsideration of the claim on the full evidentiary record. Id. at 490.
Here, after a careful review of the administrative record with respect to Valentine’s claim, the Court finds that this case bears a strong resemblance to Miles. Dr. Rubin’s IPC report — which defendant cites as the basis for its partial reversal of the initial denial of plaintiffs claim, wherein it accepted plaintiffs claim through June 30, 2012, and denied her benefits subsequent to that date (see VAL 237; Def.’s Mem. of Law, ECF No. 22, at 22-23) — is utterly perplexing when compared to the administrative record. Dr. Rubin first determined that plaintiffs functional impairment, was supported through March 30, 2012, based on her subjective complaints and the supporting medical records regarding her “chronic neuropathic pain affecting the face, allodynia, diminished neurocognition, diminished memory, and poor concentration.” (VAL 282.) ■ Dr. Rubin then opined, without further explanation, that it “is reasonable that these impairments will continue for another three months through 6/30/12.”16 (Id.) Dr. Rubin then stated that functional impairment was not supported subsequent to June 30, 2012, “based on the paucity of records which describe the patient’s physical examinations, cognitive evaluations, or functional examinations or correlation of such during the time period in question.”17 (Id.)
The Court finds these statements to be entirely inconsistent with the overall administrative record. Dr. Rubin clearly credited plaintiffs objective and subjective symptoms-based on the supporting medical records provided by Dr. Sirois — in finding that her functional impairment was proven through March 30, 2012, and provided an extensive summary of Dr. Sirois’ visit notes through that date in his report. Then, without explanation or, indeed, any discussion whatsoever, Dr. Rubin seemingly ignored the entire administrative record [442]*442subsequent to that date, including the updated November 29, 2012 APS report from Dr. Sirois, the supporting office visit notes, and plaintiffs affidavit — all of which reflect that plaintiff was suffering from similar objective and subjective symptoms,. and was prescribed similar medications, through the date of her appeal — as well as the. findings in the Pasternak report. In fact, , there is not a single reference to any of these documents in either Dr. Rubin’s IPC report or Aetna’s final determination letter to plaintiff. This omission could be partially explained by the fact that some of these records — including plaintiffs affidavit . and the Pasternak vocational expert report — are not listed in the “brief claim synopsis” section of Dr. Rubin’s report as being part of the record he reviewed.
Dr. Rubin instead concluded, without explanation, that there was a “paucity of records” to describe plaintiffs medical, cognitive, and functional examinations and evaluations after March 30, 2012. Although the Court does not conclude that the medical records contained in Valentine’s claim file irrefutably support a disability finding, the administrative record in this case certainly could not be described as having a “paucity” of records regarding all of those topics subsequent to March 30, 2012. As discussed above, Dr. Sirois’ APS report and office visit notes alone describe multiple medical examinations of plaintiff, in which she showed some measure of improvement over time, but nonetheless consistently displayed the same objective and subjective symptoms and medication side effects (including mechanical allodynia, chronic pain, tiredness, fogginess, and diminished concentration) that Dr. Rubin described as being present in the records prior to March 30, 2012. (VAL 497-526.) Dr. Sirois concluded that these symptoms caused her to be functionally impaired such that she could perform her old job at Hubbard throughout this time. (VAL 500-01.) Pasternak’s vocational expert report and plaintiffs affidavit provide additional support for these findings. Aetna, therefore, clearly failed to “assign any weight” or “provide specific reasons for its decision to discount” plaintiffs subjective (or objective) complaints, supported by the findings of her treating physician and vocational expert. Miles, 720 F.3d at 486-88. While defendant is not required to accept plaintiffs evidence, including her subjective complaints, at face value, it must “properly consider[] and reject[]” that evidence “for specific reasons supported by the record.”18 St. Onge v. Unum Life Ins. Co. of Am., 559 Fed.Appx. 28, 30 (2d Cir.2014). Here, it is not clear to the Court that defendant considered this evidence at all.
[443]*443Defendant points to a number of cases in which courts have upheld the denial of LTD claims involving disabilities largely based on subjective complaints by the claimant where the claims were unsupported by objective evidence in the record. (See Def.’s Mem. of Law at 20 (citing Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 88 (2d Cir.2009); Fortune v. Group Long Term Disability Plan for Employees of Keyspan Corp., 391 Fed.Appx. 74, 77-79 (2d Cir.2010); Schnur v. CTC Comm. Corp. Group. Disability Plan, No. 05 Civ. 3297(RJS), 2010 WL 1253481, at *14-15 (S.D.N.Y. March 29, 2010), aff'd, 413 Fed.Appx, 377 (2d Cir.2011); Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 526 (1st Cir.2005); Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir.2007)).) The issue in those cases, however, was whether or not the claim administrator was entitled to deny :the 'claim for a lack of objective evidence or whether the competing evidence was according the proper comparative weight, not whether the review of the claim failed to adequátely address significant portions of the evidence submitted by the claimant. Those cases are, therefore, unavailing here.19
[444]*444For these reasons, even under the deferential standard of review that the Court must accord to defendant’s claim-determination, the Court concludes that Dr. Rubin’s report and Aetna’s corresponding denial of plaintiffs claim after June 30, 2012, failed to address substantial parts of Valentine’s claim file, and are, therefore, “not reasonably consistent with the record as a whole.” Accordingly, the Court finds Aetna’s partial denial of plaintiffs claim to have been arbitrary and capricious because it failed to address substantial evidence in the record.20
V. Remedy
As discussed above, Aetna failed to fully and fairly review aspects of plaintiffs evidence during its claim administration process. The Court does not' conclude that Valentine’s claim, upon full consideration of the record, must necessarily be granted. In other words, the Court does not conclude that there is no possible evidence that would support a denial' of benefits. The appropriate remedy in this ’situation, therefore, as the Second Circuit noted in Miles, is to return this case to the administrator for reconsideration based on the entire administrative record. See id. at 490 (“Our precedents make clear that even where we conclude a plan administrator’s finding was arbitrary and capricious, we will typically not substitute our own judgment, but rather will return the claim for reconsideration unless we ‘conclude that there is no possible evidence that could support a denial of benefits.’ ... Among other things, remand will afford Principal the opportunity to consider the evidence under the appropriate legal standards and, if it wishes, to evaluate Miles. We do not suggest that those are the only appropriate considerations on remand, and we intend no limitation by mentioning them. Principal is expected to provide a full and fair reconsideration of Miles’s claim.” (quoting Miller v. United Welfare Fund, 72 F.3d at 1074)); see also Shore v. Painewebber Long Term, Disability Plan, No. 04-CV-4152 (KMK), 2007 WL 3047113, at *14 (S.D.N.Y. Oct. 15, 2007) (“At this time, the Court is not prepared to find that Reliance is unwilling or unable to fairly evaluate Plaintiffs claim for benefits, and Plaintiff, points to nothing in the record, other than Reliance’s denial of her claim, that proves otherwise.”); Robinson v. Metro. Life .Ins. Co., No. 05 Civ. 1534(LLS), 2006 WL 1317019, at *2 (S.D.N.Y. May 12, 2006) (granting summary judgment and remanding claim for reconsideration because “there is no basis, for granting Ms. Robinson’s claim and directing MetLife to provide her with long-term disability benefits. The record evidence is insufficient to compel the finding that a reasonable fiduciary must grant her claim.”).
VI. Conclusion
For thé foregoing reasons, after careful review of the entire administrative record, and according Aetna a deferential standard of review, the Court concludes that defendant’s decision to terminate plaintiffs long term disability benefits beyond June 30, 2012 failed to address substantial evidence in the record, and was thus arbitrary and capricious as a matter of law. Plaintiffs claim is, therefore, remanded to Aetna for reconsideration, including the updated November 29, 2012 APS report from Dr. Sirois, his supporting office visit notes, the Pasternak vocational expert report, and plaintiffs affidavit.
[445]*445Finally, “[t]he court recognizes that Plaintiff has been without benefits for an extended period of time. Therefore, the Court will retain jurisdiction over this case pending the remand and require that the administrator act expeditiously to resolve Plaintiffs claim.” Shore, 2007 WL 3047113, at *15 (citing Neely v. Pension Trust Fund of the Pension, Hospitalization and Benefit Plan of the Elec. Indus., No. 00-CV-2013, 2003 WL 21143087, at *12 (E.D.N.Y. Jan. 16, 2003)). “To that end, [Aetna] is to reconsider and render its decision within thirty days of receipt of ... any ... evidence developed subsequent to the filing of the cross-motions for Summary Judgment.... The parties are directed to report the status of the remand on the 60th and 120th days after the date of this Opinion and Order. All other proceedings before this Court are stayed pending further order of the Court, and the case is placed on the suspense docket.” Shore, 2007 WL 3047113, at *15; see also Badawy v. First Reliance Standard Life Ins. Co., No. 04 CIV. 01619(RJH), 2005 WL 2396908, at *14 (S.D.N.Y. Sept. 28, 2005) (“This court shall retain jurisdiction of this matter, but the Clerk of the Court is directed to close this case for administrative purposes unless restored to the active calendar on motion of any party.”).
SO ORDERED.
Related
Cite This Page — Counsel Stack
125 F. Supp. 3d 425, 2015 U.S. Dist. LEXIS 112278, 2015 WL 5024569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-aetna-life-insurance-nyed-2015.