Ness v. Aetna Life Ins. Co.

257 F.Supp.3d 1280

Melinda NESS, Plaintiff,

v.AETNA LIFE INSURANCE COMPANY, Defendant.

Case No: 8:16-cv-199-T-36TBM.

United States District Court, M.D. Florida, Tampa Division.

Signed June 15, 2017

Edward Philip Dabdoub, Dabdoub Law Firm, PA, Coral Gables, FL, Eric Whitehead, Ray Bourhis Associates, San Francisco, CA, for Plaintiff.

Jerel C. Dawson, Jonathan M. Fordin, Shutts & Bowen, LLP, Miami, FL, for Defendant.

ORDER

Charlene Edwards Honeywell, United States District Judge

This matter comes before the Court upon Defendant Aetna Life Insurance Company's ("Aetna") Motion for Summary Judgment (Doc. 32). In the motion, Aetna contends that summary judgment should be entered because the decision to terminate long term disability benefits was not wrong. In the alternative, Aetna contends that summary judgment should be entered even if the decision was wrong because the decision had a reasonable basis, and therefore, it was not arbitrary and capricious. Plaintiff Melinda Ness ("Plaintiff" or "Ness") filed a Cross–Motion for Summary Judgment¹ in Opposition to Defendant's Motion for Summary Judgment (Doc. 38) to which Aetna responded in opposition (Doc. 39). In the motion, Ness contends that Defendant's denial of long term benefits should be reversed because the decision: (1) was arbitrary and capricious; (2) was unsupported by strong, objective evidence in the administrative record; (3) was based on an invalid report; and (4) was based on financial self-interest. The Court, having considered the parties' submissions, the administrative record and relevant case law, and being fully advised in the premises, will grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment.

I. BACKGROUND AND STATEMENT OF FACTS²

This action seeks judicial reversal of Aetna's decision, as a claim administrator for an employee welfare benefit plan, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), § 502 (a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), to terminate the long-term disability ("LTD") benefits of Ness. The Administrative Record contains the information reviewed by Aetna and provides the basis for its decision. According to the Administrative Record, Ness had LTD coverage as a participant in an employee welfare benefit plan (the "Plan") established and sponsored by her employer, Bank of America ("BOA"). A–329–330. The Plan was funded by a group insurance policy (the "Policy") issued to BOA by Aetna, which served as a claim administrator for the Plan. Id. The Policy expressly provided Aetna with "discretionary authority to determine whether and to what extent eligible employees and beneficiaries are entitled to benefits and to construe and interpret any disputed or doubtful terms of this Policy, the Certificate or any other document incorporated herein." A–2582. Under the terms of the Policy, LTD benefits were payable for up to 18 months to a participant who satisfied the applicable elimination period and was precluded by illness or injury from working in his or her "own occupation." A–2600. After that, eligibility for continued benefits was conditioned on the claimant's inability to work in "any reasonable occupation," defined in the Policy as any gainful activity for which the claimant is or may reasonably become qualified by education, training or experience, and which meets a specified minimum income level. A–2600, 2614.

Prior to claiming disability, Ness was employed by BOA as an Operations Project Consultant, which was a "sedentary" occupation in its physical demands. A–076, 172, 2355–2356. She was diagnosed with breast cancer (right) and subsequently stopped work on April 11, 2012 due to mastectomy surgery (right) which was scheduled shortly thereafter. A–76, 78–79. A prophylactic mastectomy of the left breast was performed in April 2013. A–2420. Ness subsequently complained of neck pain, as well as low back pain associated with a herniated lumbar disc at L4–5 (she had undergone spinal fusion surgery in 1984 at L5–S1 at age 16) and failed back syndrome. A–95, 162, 2379, 2419. Ness was approved for "own occupation" LTD benefits effective October 26, 2012. A–381–382. In September 2013, Ness was advised by Aetna that her eligibility for continued LTD benefits effective April 26, 2014 would be governed by the "any reasonable occupation" test. A–401–402.

On February 19, 2014, Ness was seen by treating pain management physician Lynn Fassy, M.D., for a follow-up examination and the doctor's completion of "disability paperwork." A–1375. Plaintiff complained of lower back and leg pain, as well as "fatigue, fogginess, and memory loss" due to pain medications. Id. On examination, Dr. Fassy observed that Ness' recent and remote memory were both intact and that her concentration was within normal limits. A–1377. On the same date, Dr. Fassy completed an undated Attending Physician's Statement ("APS") identifying a primary diagnosis of "failed back syndrome" and a secondary diagnosis of herniated nucleus pulposus. A–2116–2117. Dr. Fassy further advised that Ness had "no ability to work" and was "unable to sit, stand or walk for more than 10 minutes" without change of position and that "medications for severe pain significantly decrease [her] cognitive abilities and concentration." A–159, 2116–2117.

On March 5, 2014, Ness was again seen by Dr. Fassy, who noted her complaints of pain in her neck, mid and lower back, bilateral legs, and right shoulder. A–1369. He further noted that her recent and remote memory were "intact" and that her concentration was "within normal limits." A–1372. At Aetna's request, an Independent Medical Examination ("IME") was conducted by physical medicine & rehabilitation physician Susan Aull, M.D. on March 21, 2014 in order to furnish Aetna with more detailed information concerning Ness' condition and functionality. A–2424–2428.

Dr. Aull noted Ness' complaints of constant and worsening back pain that radiated down her legs, pain which was reportedly exacerbated by standing, walking and reaching. A–2425. Dr. Aull's physical examination of Ness indicated: (a) limited cervical range of motion, with right rotation of 0–60 degrees and left rotation of 0–70 degrees but with full extension; (b) full pain-free range of motion in both extremities; (c) Spurling's sign, Lhermitte sign, and Horner's sign were all negative; (d) straight leg raising test was negative; and (e) both lower extremities had normal tone and range of motion. A–2526–2527. Dr. Aull then concluded that Ness was capable of working four hours per day with "occasional" sitting, standing and walking, adding that she could "sit for greater than 20 minutes," stand and/or walk for five minutes and then sit and rest for 15 minutes, and lift 10 pounds occasionally. A–2424, 2426. After reviewing the IME report, Aetna clinical consultant Kathy McGrath observed that Dr. Aull's physical restrictions did not "correlate with [the IME] exam findings" and that the IME report did not clearly indicate the reasons that Ness could work only four hours per day. A–182.

On April 7, 2014, Ness was again seen by Dr. Fassy, who noted her complaints of pain in her neck, lower back and legs. A–1362. He further noted that Ness' recent and remote memory were "intact" and that her concentration was "within normal limits." A–1365. Dr. Fassy again reported intact memory and normal concentration in an office visit on May 6, 2014. A–1357. On June 11, 2014, Ness was seen by her treating oncologist, Jameel Audeh, M.D., who found "no evidence of recurrent breast cancer." A–1894. Dr. Audeh observed that Ness' "recent and long-term memory" appeared "normal for [her] age." Id.

On June 24, 2014, at Aetna's request, a Functional Capacity Evaluation ("FCE") was conducted by Sean McCue, MPT (Master of Physical Therapy), CFCE (Certified Functional Capacity Evaluator). A–2379–2401. The FCE included multiple assessments of the degree of effort put forth by Ness during the various physical/functional tests and activities comprising the evaluation. Id. Explaining that "[v]alidity of effort is determined by isometric and dynamic tests, hand tests and consistency of movement patterns," Mr. McCue reported that Ness had put forth an "invalid and very poor effort." A–2379. He further advised that Ness had demonstrated "typical Symptom Magnification behavior" with only a "moderate level of subjective pain." Id.

With respect to functionality, Mr. McCue stated that Ness "did not demonstrate a Functional Strength Deficit (FSD) for her back," thus indicating that "her strength in her back is not statically less than other major joints of her body." A–2380. The FCE indicated that Ness' "injured area" had "returned to normal or near-normal function." A–2389. Mr. McCue concluded that Ness had demonstrated "sedentary" work capacity. A–2380–2381. A copy of the FCE report was forwarded by Aetna to Dr. Fassy, who responded by opining that Ness was unable to work in any capacity because of her then upcoming surgery and "ongoing pain" which necessitated daily use of medication. A–2357–2358. Based on the sedentary functionality established by the FCE, a Transferable Skills Analysis ("TSA") performed by Aetna identified multiple suitable, gainful sedentary occupations that were consistent with Ness' work experience and physical abilities. A–2339–2352. On June 30, 2014, Dr. Fassy again observed that Ness had intact memory and normal concentration. A–1344. He also noted she did not "appear overmedicated." A–1343. On July 30, 2014, Dr. Fassy again observed that Ness had intact memory and normal concentration, and that she did not appear overmedicated. A–1337–1338.

On August 4, 2014, a clinical review was conducted for Aetna by Margaret Rosier, RN, who reviewed the responses and treatment records supplied by Dr. Fassy and advised that the provided material did not contain any description of "current abnormal physical exam findings, lumbar [range of motion], gait, activities, description...