Mattson v. Aetna Life Ins. Co.

928 F.Supp.2d 905

Jeffrey MATTSON, Plaintiff,

v.AETNA LIFE INSURANCE CO., Defendant.

Civil Action No. H–11–3742.

United States District Court,

S.D. Texas,

Houston Division.

Feb. 28, 2013.

Lionel James Roach, Bemis Roach and Reed, Austin, TX, for Plaintiff.

John Bruce Shely, Andrews Kurth LLP, Houston, TX, for Defendant.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

Jeffrey Mattson sued Aetna Life Insurance Company under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(a)(1)(B), 1140, challenging Aetna's decision to terminate his long-term disability benefits. Mattson and Aetna cross-moved for summary judgment. Based on the pleadings; the motions, responses, and reply; the record; and the applicable law, this court grants Mattson's motion, denies Aetna's motion, and remands the case to the plan administrator for further proceedings consistent with this court's opinion. The reasons for these rulings are explained below.

I. The Summary Judgment RecordA. The Policy

Mattson began working for Continental Airlines in 1985. He has worked as a customer service agent and baggage handler. (DE 15–2 at 2, 6).¹ Continental obtained a disability insurance policy from Aetna. The Aetna policy provided long-term benefits for disability, defined for the first two years as a beneficiary's inability “to perform the material duties of your own occupation because of: disease or injury; and your work earnings are 80% or less of your adjusted predisability earnings.” (DE 15–13 at 678 (emphasis omitted)). After two years, the definition changed to cover only the inability “to work at any reasonable occupation solely because of: disease or injury.” ( Id.). The policy defined “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 690). The policy gave Aetna “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.” (DE 15–12 at 673).

B. The Record as to Mattson's Medical Condition and Aetna's LTD Benefits Decisions

In 1994, Mattson developed a condition that caused involuntary head movement and turning. He was treated with frequent injections. (DE 15–2 at 8). The symptoms subsided over time and disappeared. In late 2006, Mattson's condition returned. His treating physician referred him to Dr. William G. Ondo, a board-certified neurologist and expert in movement disorders. Dr. Ondo first examined Mattson on June 26, 2007 and diagnosed him with spasmodic torticollis, also known as cervical dysphonia. Dr. Ondo's notes state that “[i]n November or December 2006, [Mattson's] head turning to the left recurred but less severe than in 1994, he denies limitation of head movement or head jerking.... He denies pain or functional impairment, but he feels embarrassed and quite concerns [sic] that his neck turn may progress and be worse like in 1994.” (DE 15–9 at 561). Dr. Ondo concluded:

The patient has moderate left torticollis, moderate right laterocollis and mild retrocollics with no lateral or sagittal shift. The frequency of the head turn is quite often, >75% of the time.... He has pain at the back of his neck <10% of the time, and there is no disability from pain. There is no disability for work, activities of daily living, driving, reading, watching TV or activities outside home. He has slight social embarrassment.... He also has neck jerking in the “no-no” position with a frequency of 6–7 Hz.

( Id. at 563). Dr. Ondo recommended a series of injections. ( Id. at 564).

Around May 15, 2008, Mattson sent to Aetna an Employee Long Term Disability Plan Benefit Application and a Work History and Education Questionnaire. In the Application, Mattson stated that he had been unable to work as of April 4, 2008, due to “neck twists, jerks with continual spasms and head tremors 24/7 with pain & stiffness.” (DE 15–9 at 574). He described his illness as a “neurological disorder called spasmodic torticollis also called cervical dystonia.” ( Id.). Mattson stated that since he developed cervical dystonia, “walking in a forward motion makes my head, neck jerk & twist uncontroleable. [sic]. While Sitting—my head shakes.” ( Id. at 577). Mattson listed Dr. Ondo, a neurologist, as his only treating physician. ( Id. at 574).

Mattson also submitted an Attending Physician Statement (“APS”) and a Capabilities and Limitations Worksheet, both dated May 23, 2008 and signed by Dr. Ondo. On the APS, Dr. Ondo noted that Mattson had “neck pain” and was “unable to fully move neck/head.” ( Id. at 586). In the space on the APS to note “objective findings,” Dr. Ondo wrote “neck rotation.” ( Id. at 588). Dr. Ondo stated that Mattson had “moderate limitations of functional capacity.” ( Id. at 587). He checked the box signifying that Mattson had “moderate limitation of functional capacity/capable of light work.” ( Id.). Dr. Ondo also signed a letter dated May 21, 2008, stating that he was treating Mattson for his “longstanding history of cervical dystonia” and warning that any subsequent injury to the head, neck, and shoulder area “potentially could exacerbate this condition.” ( Id. at 589).

In a letter dated June 12, 2008, Aetna asked Dr. Ondo to send Mattson's medical records. ( Id. at 570). On June 19, 2008, Aetna received an Initial Neurologic Evaluation dated June 26, 2007 and two forms reflecting Botox injections that Mattson had received in 2008. ( Id. at 558–568). A letter dated July 11, 2008 from Dr. Ondo stated that Mattson had cervical dystonia that caused involuntary head turning; that Botox injections resulted in moderate improvement; and that Mattson had “modest disability from his condition.” (DE 15–8 at 487).

Based on the information from Mattson and Dr. Ondo, Sandra Jaramillo, an Aetna claim specialist, requested a review by an Aetna medical-claim coordinator. (DE 15–2 at 17). This review was performed by Pedro Cortero on July 18, 2008. Cortero concluded that “[t]he medical data provided are insufficient to support disability in own occupation,” and that there was “no clinical evidence that precludes claimant from performing his heavy pdl [physical demand level] occupation.” Cortero recommended that Aetna deny Mattson's long-term disability application. (DE 15–8 at 485).

Jaramillo disagreed with Cortero's conclusions and asked Aetna to approve Mattson for LTD benefits from June 23 through October 6, 2007, pending a vocational consult, peer review, and functional-capacity evaluation. She found that Mattson was unable to perform his own occupation due to his “chronic condition” and “modest disability.” (DE 15–1 at 27–28). Jaramillo noted that Mattson's occupation involved “heavy” work that required “constant or extensive amounts of lifting, loading, unloading, bending, stooping, climbing & use of a variety of equipment & assistance to the traveling public.” ( Id. at 27). Jaramillo's recommendation was approved on July 30, 2008, pending follow-up for “updated info and further objective information.” ( Id. at 28). On July 30, 2008, Jaramillo informed Mattson and notified him that Aetna would need updated information after his September 9, 2008 office visit with Dr. Ondo. ( Id. at 29).

In a letter dated August 27, 2008, Aetna had advised Mattson that he should apply for Social Security disability benefits. The letter stated that Aetna would make Allsup, a third-party company, available to Mattson to help him pursue his application. Aetna noted that if Mattson were approved for Social Security benefits, his LTD benefits from Aetna would be reduced by an equivalent amount. It stated, however, that there might be other benefits to Mattson to applying for SSDI. (DE 15–9 at 517). After receiving Aetna's letter, Mattson decided to apply for Social Security benefits and to work with Allsup during that process.

On October 7, 2008, Aetna referred Mattson to its Global Services Group for a functional-capacity evaluation (“FCE”). (DE 15–1 at 50–51). The Global Services Group arranged for Karen Ray, a physical therapist in Houston, Texas, to conduct the evaluation. She did so on November 4, 2008. (DE 15–8 at 455–472). The FCE resulted in a finding that Mattson was “functionally capable of work at a LIGHT level on an 8 hour per day basis.” ( Id. at 456). The FCE report concluded:

The results of this evaluation indicate that Jeff Mattson demonstrated limited abilities in the medium category of work with an occasional waist to shoulder lift of 30 pounds. However, in view of his inability to meet the full criteria [for] the medium category, he is functionally capable of work at a LIGHT level on an 8 hour per day basis. Increased torticollis noted with increased physical effort. He did demonstrate appropriate physiological changes with testing. He did not meet his job demands for lifting ... for a customer service agent for Continental Airlines.

( Id.). According to the report, Mattson demonstrated the ability to sit on a constant basis; to stand, stoop, perform reaching at desk level, and grasp on a frequent basis; and to walk, carry, climb steps, crouch, push, pull, kneel, and perform overhead and floor-level reaching on an occasional basis. The FCE report concluded that Mattson could not perform the demands required of a customer service agent for Continental Airlines. ( Id.)

Aetna received the FCE on November 12, 2008. After reviewing it, Jaramillo concluded that Mattson was unable to perform his own occupation and approved LTD benefits through May 31, 2009. (DE 15–3 at 109–12).

The SSA required Mattson to be examined by an independent doctor. Dr. Balakrishna Reddy Mangapuram examined Mattson on December 9, 2008. Dr. Mangapuram found “Zero medial and lateral rotation of the neck. Constant shaking of...