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Gannon v. Aetna Life Insurance Co.

September 28, 2007


The opinion of the court was delivered by: John G. Koeltl, District Judge


This is an action arising from an alleged wrongful denial of long-term disability benefits under an employee benefits plan subject to the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001, et al. Although originally filed against Aetna Life Insurance Company ("Aetna"), Conde Nast Publications Inc. Long-term Disability Plan, and Conde Nast Publications, Inc., the parties have stipulated that only Aetna remains a defendant. (See Order dated July 11, 2007.) The defendant has filed a motion for summary judgment. The plaintiff has filed a cross-motion for judgment on the administrative record, which for the reasons explained below the Court construes as a motion for summary judgment.


Unless otherwise noted, the following facts are not in dispute. The plaintiff Alicia Gannon ("Gannon" or "plaintiff") began working for Advanced Magazine Publishers, a subsidiary of Conde Nast, as a senior graphic designer in September 2002. In November and December 2002 Gannon underwent radiological testing which determined that she had a meningioma (brain tumor) affixed to her right optical nerve. She stopped working at Conde Nast on April 25, 2003. (See Defendant's Statement of Material Facts Pursuant to Local Rule 56.1 ("Def.'s 56.1 Stmt") ¶¶1-2; Plaintiff's Response to Defendant's 56.1 Statement Pursuant to Local Rule 56.1 ("Pl.'s Resp. 56.1 Stmt.") ¶¶1-2.)

Gannon's employer, Conde Nast, sponsored an employee welfare benefit plan governed by ERISA, and fully insured by Aetna ("the Plan"). (See Def.'s 56.1 Stmt. ¶¶4-6; Pl.'s Resp. Stmt. ¶¶4-6.) Employees of Conde Nast such as Gannon who are part of a defined eligible class under the Plan are entitled to long-term disability benefits pursuant to the terms and conditions of the Plan. (Id.; Affadavit of Kazuyuki Takashima dated September 20, 2005 ("Takashima Aff."), Ex. A at AG 00011.) The Plan provides for an elimination or waiting period of twenty-six weeks before long-term disability benefits are payable (Takashima Aff., Ex. A. at AG 00003), and defines a total disability during the first twenty-four months of the covered period as follows:

[Y]ou 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 predisability earnings. After the first 24 months that any Month 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. (See Takashima Aff, Ex. A at AG 00012.)

A participant was entitled to a monthly long-term disability benefit of 60% of the participant's predisability monthly earnings. (See Def.'s 56.1 ¶11; Pl.'s 56.1 ¶11; Takashima Aff, Ex. A at AG 00003.) The Plan provides that Aetna, as the claim fiduciary under the Plan, has "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." (See Def.'s 56.1 Stmt. ¶ 16; Pl.'s Resp. 56.1 Stmt. ¶ 16; Takashima Aff., Ex. A at AG 00066.) Additionally, the Plan specifies that "Aetna shall be deemed to have properly exercised such authority" and "must not abuse its discretion by acting arbitrarily and capriciously." (Takashima Aff., Ex. A at AG 00066.)

Gannon received short-term disability benefits under the Plan from on or about May 5, 2003 until November 2, 2003. (See Def.'s 56.1 Stmt. ¶ 8; Pl.'s Resp. 56.1 Stmt. ¶ 8.) Gannon underwent radiation therapy from June 12 to July 25, 2003 for her meningioma (AG 00290)*fn1 , which led to the improvement of her visual distortions, headaches and fatigue. Also, from May through November 2003, Gannon received treatment from Dr. Peter Sass, a psychiatrist. (See AG 00398.) On August 20, 2003, Dr. Sass prepared an AETNA Attending Physician Behavioral Health Statement ("APS") on Gannon's behalf. (See AG 00269-00270.) The statement noted that Gannon was experiencing a "major depressive episode", and that Gannon was "too severely depressed and anxious to be employed at any job at this time" and that she was "too severely depressed and anxious" to participate in vocational rehabilitation (job retraining) programs at the time. (Id.) Under tasks that the patient is "unable to perform", Dr. Sass checked "able to give supervision to others," "able to maintain attention and concentration," "able to maintain persistence to task," "able to interact with public/customers," and "able to direct, control or plan activities of others." (Id.) Dr. Sass noted marked limitations in other categories.

Dr. Sass predicted that Gannon would be able to return to work on November 18, 2003. (Id.)

On November 17, 2003, Dr. Sass prepared a second APS (See AG 00405-406.) In it, he again noted that the plaintiff was "too severely depressed to return to work." He further added that she had "significant depression with anhedionia on mental status examination," and predicted that she would be ready to work again on December 18, 2003. (AG 00405.)

The record also contains handwritten notes on a form entitled "progress notes" dated November 25, 2003, where Dr. Sass notes that Gannon "reports continuing to having (sic) difficulties returning to work as a graphic artist," and that her "[d]epressive [symptoms] are mildly improved," and that she was "dysthmic on exam." (AG 00521.)

Gannon became potentially eligible for long-term disability benefits on November 3, 2003, the date on which the Plan's 26-week "elimination period" expired. (See Takashima Aff., Ex. A at AG 00003; see also AG 00329.) On November 17, 2003, Gannon submitted the necessary forms and documentation under the Plan for long-term benefits based on the diagnosis of right optic meningioma and severe depression.*fn2 (See AG 00428-00458.) Her employer submitted a Physical Demand Analysis Worksheet on November 24, 2003 detailing the physical capabilities required by Gannon to perform the material duties of her job. (See Def.'s 56.1 Stmt. ¶ 19; Pl.'s Resp. 56.1 Stmt. ¶ 19; AG 00460.) The worksheet detailed that Gannon's position requires 90% computer use, 80% of day working alone and 20% working with others, frequent hand grasping and fine/gross manipulation; repetition; frequent sitting, standing, walking; occasional stair climbing, kneeling, lifting, pulling, pushing, reaching, bending, carrying, twisting; occupational requirements included near and far vision, hearing, speaking and depth perceptions. (See Def.'s 56.1 Stmt. ¶ 20; Pl.'s Resp. 56.1 Stmt. ¶ 20; AG 00460.) On January 22, 2004, AETNA wrote to Gannon that it was still evaluating her claim for long-term disability benefits under the Plan. (See Def.'s 56.1 Stmt. ¶ 21; Pl.'s Resp. 56.1 Stmt. ¶ 21; AG 00329.) The defendant claims that Gannon's medical and claim file was reviewed by Aetna's in-house Nurse Consultant, Karen M. Whitcher, R.N. in February 2004, who concluded that following Gannon's radiation therapy in August 2003, the problems with her vision had improved. (See Def.'s 56.1 Stmt. ¶¶ 22-23; AG 748-750.) Aetna's Psychology Consultant, Donna C. Wicher, Ph.D, reviewed Gannon's file in February 2004. (See Def.'s 56.1 Stmt. ¶ 24; Pl.'s Resp. 56.1 Stmt. ¶ 24; AG 00742-743.) Also in February 2004, Dr. Wicher spoke to Dr. Sass by telephone. (AG 00742-00743.) Dr. Wicher's notes from the conversation stated that Dr. Sass "has not seen Ms. Gannon for over three months and has no current information regarding her mental health status." (Id.) Dr. Wicher's report concluded by noting:

There is no indication in the records received that Ms. Gannon is currently receiving any mental health treatment from other providers and no current mental health data is available to evaluate. Consequently, the information available does not support the conclusion that Ms. Gannon is currently experiencing impairment in functioning, such as impairment in grooming or hygiene, deficits in concentration or memory (as tested by neuropsychological evaluation or mental status evaluation), or problems with psychomotor retardation or agitation, which is of a severity to preclude return to her usual job duties at this time. (Id.)

On March 5, 2004, Aetna denied Gannon's long-term disability claim by letter. (See AG 00324-00328.) The letter detailed the information that Aetna reviewed from the medical records that Gannon submitted on her disability claims of meningioma and depression. It concluded that Gannon was precluded from working because of the meningioma through September 1, 2003. (See AG 00326.) It then stated:

Regarding your mental health difficulties, you were apparently able to communicate effectively in a written format as evidenced by your hand written letters you have submitted to us. In addition, there is no indication in the records received that you are currently receiving any mental heath [sic] treatment from other providers and no current mental health date [sic] is available to evaluate. Consequently, the information available does not support the conclusion that you are currently experiencing impairment in functioning, such as impairment in grooming or hygiene, deficits in concentration or memory (as tested by neuropsychological evaluation or mental status evaluation), or problems with psychomotor retardation or agitation, which is of a severity to preclude return to your usual job duties at this time.

Although you are reported to have meningioma and depression, the medical record in your file does not establish that these symptoms result in medical impairment that requires medical restrictions from performing work activities in your occupation as a graphic designer. For the period after September 1, 2003, medical records do not demonstrate objective physical examination findings or mental status examinations that demonstrate cognitive impairment. (Id. at AG 00326.)

The letter went on to advise Gannon of her appeal rights under ERISA. (AG 00326-00328.)

On August 23, 2004, Gannon filed an administrative appeal with AETNA. (See AG 00398-00410.) In support of her appeal, Gannon's counsel attached to his letter to Aetna the APSs by Dr. Sass dated August 20, 2003 and November 17, 2003 and Dr. Sass's progress note dated November 25, 2003. (See AG 00403-00408.) The appeal argued that Aetna disregarded the applicable deadlines governing ERISA-controlled disability benefit determinations by taking five months to decide her claim instead of the required 45 days. (AG 00399.) Moreover, the appeal accused Aetna of taking advantage of its own delay because it focused on the lack of current medical records supporting Gannon's claims of mental health impairments as a basis to deny her claim. "[E]ven treating as valid the March 5, 2004 denial letter's faulty conclusion that Ms. Gannon was not mentally disabled as of March 2004, it would still be invalid as applied to the period from November 2003 to March 2004.." (AG 00400) The appeal also objected to Aetna's position that Gannon's ability to complete the forms sent to her by Aetna indicated that she was not mentally disabled. The letter also notes that a May 4, 2004 memo given to Gannon in response to her pre-appeal document request says that issues concerning Gannon's mental health "are separately addressed by the psychology consultant," but that no corresponding memo from a psychology consultant had been provided. (Id.)

By letter dated October 7, 2004 Aetna notified Gannon's counsel that it required an extension of time until October 27, 2004 to render a decision on her appeal. (See AG 00141-00142.) The letter notified Gannon that her file was to be reviewed by a psychiatric consultant who had not yet reviewed her claim and invited Gannon to submit any additional materials in support of her appeal. (See AG 00141-00142.)

By letter dated October 27, 2004, Aetna denied Gannon's appeal. (See AG 00219-00223.) The denial letter cited the independent review conducted by Aetna's Psychiatric Consultant, Dr. Mark Schroeder. The letter quoted Dr. Schroeder's review as stating "[t]he question to be addressed by this review is whether the available evidence supports psychiatric restrictions or limitations as of November 3, 2003." (Id.) Aetna's denial letter then reported the basis for the denial as being a lack of evidence that would support restrictions or limitations in four areas: (1) documentation of severe psychiatric symptoms such as suicidal or homicidal thoughts; (2) observed or objective findings of impairment such as marked deficits in organization of thought, cognitive, or motor function, communication, or hygiene by detailed mental status exams or psychological testing; (3) documented presence of significant impairment of work or non-work related activities; and (4) the provision of intensive mental health treatment. (AG 00221-00222.)

The letter cited Dr. Schroeder's conclusion that evidence of more severe psychiatric symptoms, such as suicidal or homicidal thoughts with intent or plan, psychotic or manic symptoms, or severe panic attacks with agoraphobia were not documented in the claim file. (AG 00221.) Dr. Schroeder cited evidence that some improvement was noted in the July 31 office visit with Dr. Sass, and that the only office visit note after November 3, 2003 was that of November 25, 2003. (Id.) In the last office visit, no severe symptoms were noted and Gannon was described as appearing "dysthymic" which the denial noted "generally indicates less severe depression." (Id.) Dr. Schroeder further noted that an office visit note from the office of Dr. Arthur Hoffman (ophthalmologist) dated November 10, 2003 described Gannon as "on Lexapro with good results" ...

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