DAVID S. CAYER, Magistrate Judge.
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and this Motion is now ripe for the Court's determination.
Having carefully considered the parties' arguments, the record, and the applicable authorities, the Court
This is an action for declaratory and injunctive relief as well as payment of long term disability (LTD) benefits under to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001. The Court has jurisdiction over the controversy pursuant to 29 U.S.C. § 1132(e)(1). Plaintiff alleges a physical and mental disability. Taking the facts in the light most favorable to Plaintiff, he was employed as President of Arndt & Herman Building Products Division (Arndt & Herman) of ECMD, Inc.
Plaintiff was a full-time employee of ECMD, Inc. and at all times was a covered beneficiary under its Long Term Disability Executives Plan (Plan). The Plan plainly states with respect to "Long Term Disability Benefit Eligibility: `You will be considered disabled while covered under this . . . Plan on the first day that you are disabled as a direct result of a significant change in your physical or mental conditions and you meet all of the following requirements:'"(1) be covered by the Plan; (2) be under a physician's regular care; and (3) be disabled by illness or injury" as determined by Aetna's Test of Disability." (AR 272). The Test for Disability states, "You meet the test of disability on any day that: You cannot perform the material duties of your own occupation solely because of an illness, injury, or disabling pregnancy-related condition;. . . ." Own occupation means "[t]he occupation you are routinely performing when disability begins, and is "viewed as it is normally performed in the national economy rather than for specific employers." (AR 288). 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." (AR 1501).
On September 15, 2015 ECMD, Inc. admonished Plaintiff for failure to adhere to business hours and/or to adequately apprise his employer of his whereabouts and activities outside the office. (AR 674). Plaintiff received a memo on September 21, 2015 regarding issues with his work performance and the overall financial performance of the division. Prior to Plaintiff's termination Arndt & Herman was not performing well financially. (AR 675). On January 4, 2016, Plaintiff was terminated for poor performance.
Prior to his termination, Plaintiff underwent a series of medical procedures from 1973 to 2013 including inguinal hernia repair, left total hip replacement, right total knee replacement, right rotator cuff repair, right pectoralis tendon repair, and resection of left first rib secondary to a benign tumor, laminectomy of the lumbosacral spine to address left leg pain in 2008, and a laminectomy to address left leg and right hip pain in 2013. He continues to experience back, leg, and hip pain, pain and stiffness in his hands and wrists, and inguinal neuralgia. None of Plaintiff's injuries or medical procedures are work related. Following the laminectomy in 2013, Plaintiff experienced increased pain in his groin area. He was diagnosed by his treating physician, Dr. Hans Hansen, with lumbar degenerative disc disease (primary), inguinal neuralgia (secondary), and peripheral neuropathy (other). (AR 1412). The diagnosis indicated that Plaintiff was capable of light work, defined as "[e]xerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently." (AR 1413). A Capabilities and Limitations Worksheet from Dr. Hansen indicated Plaintiff could frequently lift up to twenty pounds.
On January 5, 2016, one day following his termination from ECMD, Inc., Plaintiff filed an application for LTD with Aetna. Neither party to this action raises an issue with Plaintiff filing for benefits after termination from his employment. At no point during his employment did Plaintiff apply for disability benefits. Plaintiff was notified by Aetna on January 8, 2016 that he was not eligible to file for LTD because he had not satisfied the ninety-day elimination period. Plaintiff became eligible to file for benefits on April 4, 2016. On March 28, 2016 Aetna requested a thirty-day extension to review Plaintiff's request. On May 10, 2016, Aetna issued a letter to Plaintiff denying his disability benefits. The letter stated, "[t]here is no support for impairment that would prevent you from performing the material duties of your occupation" as President as viewed in the national economy. Plaintiff timely appealed the initial decision. Aetna assigned Dr. Rajesh Kannon, a specialist in Occupational Medicine, to review the appeal. Dr. Kannon's findings were based upon a complete review of the record including supplemented materials provided by Plaintiff on appeal. Aetna also conducted a two-day period of video surveillance of Plaintiff which revealed his ability to sit at a ninety-degree angle for thirty minutes. This observation conflicts with the treating physician's finding that Plaintiff could not sit at a ninety degree angle. Dr. Kannon stated:
A final administrative denial of Plaintiff's claim was issued on June 22, 2017.
Federal Rule of Civil Procedure 56(a) provides:
Fed.R.Civ.P. 56(a). The Rule provides procedures for establishing the presence or absence of any genuine dispute as to any material fact:
Fed.R.Civ.P. 56(c).
Although the moving party bears the initial burden of stating the basis for its motion and identifying what evidence demonstrates the absence of a genuine issue of material fact, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
"The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment."
When the Plan grants the fiduciary discretionary authority to interpret its terms, the court limits its review to whether the fiduciary abused its discretion in denying the claim.
The Plan expressly grants Aetna the "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 the Policy, the Certificate or any other documents incorporated." (AR 1501). The Fourth Circuit "will find discretionary authority in the administrator if the plan's language expressly creates discretionary authority."
Here, the "plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan . . . a reviewing court may reverse the denial of benefits only upon a finding of abuse of discretion . . ."
In determining whether a fiduciary abused its discretion in denying benefits, the Court considers eight factors:
A fiduciary does not abuse its discretion so long as the decision is reasonable.
An ERISA claims administrator "is obliged to act in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of . . . [ERISA]," . . . and ERISA provides no exemption from this duty when it comes time to pay benefits."
Relying on a plain reading of the Plan, eligibility requires Plaintiff to (1) be unable to perform the material duties of his own occupation; (2) based on the duties as defined as the occupation is viewed in the national economy; and (3) Plaintiff's disability must be a direct result of a significant change in physical or mental conditions.
Plaintiff can perform the material duties of his occupation. He claims that he suffered from "intractable, inoperable nerve pain . . . render[ing] him unable to perform the material duties of his occupation" and in particular the ability to perform sedentary tasks. (Doc. 19, p. 2). However, based upon evidence provided by his own treating physician, the Functional Capacity Evaluation (FCE) report, video surveillance, and Dr. Kannon's peer review report, Plaintiff can perform at least sedentary work. Plaintiff's assertion that he is unable to sit and therefore unable to perform his occupation is in direct conflict with video surveillance that revealed his ability to sit for at least thirty minutes. Therefore, Plaintiff has failed to demonstrate that he is unable to perform the material duties of his occupation.
The national economy defines Plaintiff's material duties in the role of President as "occasional lifting/carrying up to 10 [ten] pounds, mostly sitting, with some brief periods of standing/walking." (AR 1406). Plaintiff must provide evidence supporting his inability to perform these tasks. As stated above, he has failed to do so.
Plaintiff did not experience a significant change in his physical or mental conditions prior to his termination. Plaintiff worked with his conditions, including pain while sitting, and consistently took pain medication for a period of two to three years. (Doc. 17 Part II (D)). Plaintiff's affidavit and documents submitted in support of his claim described ongoing but stable pain complaints and use of medications to alleviate his symptoms. (Doc. 17, Part II (C)). Therefore, Plaintiff did not experience a significant event, as required by the Plan, to be eligible for LTD benefits.
The goal of the Plan is to provide benefits according to terms of the group policy. The test for disability ensures that eligible employees receive LTD benefits. Therefore, Aetna's decision furthers the purpose and goals of the Plan.
Aetna's denial must be supported by substantial evidence. Substantial evidence is defined as more than a scintilla, but less than a preponderance.
Plaintiff experienced a similar or identical degree of pain over a two to three year period. The only change in Plaintiff's condition at the time of his claim was his termination from employment because of poor performance.
Aetna's physician reviewer considered all the medical records, Plaintiff's affidavit, and the video surveillance evidence. He provided specific reasons for why he disagreed and agreed with the various restrictions and limitations offered by Plaintiff's physicians. As to a physical disability, the treating and reviewing physician disagreed on Plaintiff's use of his upper extremities, ability to sit, and sustainable work capacity. (AR 307). The Supreme Court in
As to the extent that each document was reviewed, Aetna stated at the beginning of its final decision letter "[a]lthough every piece of information was taken into consideration in our review, not every document will be specifically referenced in this letter." (AR 1546). Therefore, Plaintiff's argument that all the evidence in the administrative record-and in particular the vocational assessment- was not considered is not persuasive. In fact, the reviewing physician noted in his report that he reviewed the vocational assessment. (AR 411). In addition, the Disability Appeal Consultant submitted an affidavit stating, "I considered all documents and information submitted by or on [Plaintiff's] behalf in support of his claim . . . obtained by Aetna during both the initial claim and upon his administrative appeal." (Doc. 16-2, p. 5).
There is no evidence in the record to support Plaintiff's claim of a lack of mental acuity resulting from his pain medication. Medical records from 2014 to 2016 consistently reported normal orientation, affect, and mental status; normal memory and cognition; and that [Plaintiff] was "alert and oriented." (
Aetna's determination is based upon the plain language of the Plan and is consistent with other provisions and interpretations. The Plan unequivocally states that a claimant's occupation is defined by the national economy and he only meets the "Test of Disability" if he cannot perform the material duties of his occupation due to an injury or illness which results in a significant change in his physical or mental condition. Aetna applied the terms of the Plan as written. Therefore, the interpretation was consistent with other provisions of the Plan and earlier interpretations.
Aetna accurately determined that Plaintiff's occupation, as performed in the national economy, is a sedentary physical demand occupation. (AR 1406). For the reasons stated in factor (3), Aetna's claim investigation included a reasoned interpretation of the objective facts and the analysis of those facts by medical professionals, information provided by Plaintiff's treating physician, and medical records submitted in support of his claim.
A court must follow Congress' command for adherence to the provisions of the written plan in resolving ERISA claims.
A plain reading of the Plan language expressly grants Aetna the "discretionary authority to determine . . . to what extent eligible employees and beneficiaries are entitled to benefits . . . ." (AR 1501). Therefore, the Fourth Circuit will find discretionary authority if the plan's language expressly creates discretionary authority.
Aetna's structural conflict of interest occasioned by its dual role of evaluating and paying LTD claims is only "considered one factor, among many, in determining the reasonableness of the discretionary determination."
1. "Defendant's Motion for Summary Judgment" (Doc. 16) is
"Plaintiff's Motion for Summary Judgment" (Doc. 18) is DENIED.
2. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties.
