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Rehkugler v. Aetna Life Ins. Co.

United States District Court, N.D. New York

July 14, 2017

AETNA LIFE INS. CO., Defendant.

          OFFICE OF JAMES D. HARTT Counsel for Plaintiff

          EPSTEIN BECKER & GREEN, P.C. Counsel for Defendant

          JAMES D. HARTT, ESQ.



          GLENN T. SUDDABY, Chief United States District Judge.

         Currently before the Court, in this action filed by Daniel Rehkugler ("Plaintiff") against Aetna Life Insurance Company ("Defendant" or "Aetna"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., are Plaintiff's motion for judgment on the administrative record and Defendant's motion for summary judgment. (Dkt. Nos. 24, 25.) For the reasons that follow, Plaintiff's motion is denied and Defendant's motion is granted.


         A. Plaintiff's Amended Complaint

         Generally, in his Amended Complaint, Plaintiff alleges as follows. Plaintiff is (and, at all relevant times, was) employed by Federal Express Ground System, Inc. ("FedEx") as a "maintenance technician." (Dkt. No. 6 at ¶¶ 6, 9 [Plf.'s Am. Compl.].) Plaintiff was covered under a long-term disability ("LTD") plan ("the LTD Plan"), which was administered and insured by Defendant. (Id. at ¶ 14.) On January 23, 2014, Plaintiff was "removed from work" due to disability, and, accordingly, he applied for benefits under the LTD Plan. (Id. at ¶ 15.) In so doing, Plaintiff provided Defendant with medical evidence establishing that he suffered from degenerative thoracolumbar scoliosis, foraminal stenosis, and central canal stenosis, and, as a result, that he was disabled within the meaning of the LTD Plan. (Id. at ¶¶ 19, 21-25.) Despite this evidence, however, Defendant denied his claim for LTD benefits "in bad faith." (Id. at ¶ 26.)

         Based upon the foregoing allegations, Plaintiff asserts a claim for the wrongful denial of benefits under the LTD Plan pursuant to 29 U.S.C. § 1132(a)(1)(B). (Id. at ¶ 32.) Moreover, Plaintiff requests an Order permanently enjoining Defendant "from denying payment of future recurring claims" pursuant to 29 U.S.C. § 1132(a)(1)(B) and (a)(3)(A). (Id. at ¶ 34, Prayer for Relief at ¶ A.)[1]

         B. Undisputed Material Facts

         As an initial matter, a few words are appropriate with respect to the manner in which the parties' motions were briefed. Plaintiff's motion is denominated variously as one seeking "judgment on the law" (Dkt. No. 24 [Plf.'s Notice of Motion, Caption]), "judgment on the administrative record" (Dkt. No. 24 [Plf.'s Notice of Motion, Text]; Dkt. No. 24, Attach. 2 [Plf.'s Memo. of Law, Cover Page Caption]), and/or "JUDGMENT ON THE ERISA RECORD" (Dkt. No. 24, Attach. 1 [Proposed Order/Judgment]). Plaintiff's motion papers also contain passing reference to Fed.R.Civ.P. 56, which governs motions for summary judgment. (See, e.g., Dkt. No. 24, Attach. 2 [noting that Plaintiff seeks "judgment pursuant to [Fed. R. Civ. P.] 7(b), 56, [and] ERISA § 502"].) The Second Circuit has noted that a "'motion for judgment on the administrative record' . . . does not appear to be authorized in the Federal Rules of Civil Procedure." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003).[2] Because "[m]any courts have either explicitly or implicitly treated such motions . . . as motions for summary judgment under Rule 56, " the Court will treat Plaintiff's motion as one seeking summary judgment. Muller, 351 F.3d at 124; accord, e.g., Tulino v. Un. of Ohmaha Life Ins. Co., 15-CV-3731, 2017 WL 384068, at *6 (S.D.N.Y. Jan. 26, 2017); Rao v. Life Ins. Co. of N. Am., 100 F.Supp.3d 210, 219 (N.D.N.Y. 2015) (Hurd, J.).

         Although Plaintiff did not file a separate statement of material facts ("Rule 7.1 Statement"), the Court construes Part II of his memorandum of law-which consists of purported factual assertions set forth in numbered paragraphs with parenthetical record citations purportedly supporting those assertions-to be a Rule 7.1 Statement. (Dkt. No. 24, Attach. 2, Part II.) However, the Court notes that several of Plaintiff's purported factual assertions constitute improper legal arguments (see, e.g., Dkt. No. 24, Attach. 2, ¶¶ 2, 3, 6, 9, 12, 19, 20, 23), are worded in a manner that misleadingly characterizes the record citation provided (see, e.g., id., ¶¶ 7 [asserting that Plaintiff was "told by FedEx that he qualified for STD benefits under the plan, and began to collect STD benefits shortly after taking leave, " but citing a letter apparently related to a different disability for which he claimed benefits several years prior to the disability at issue in this case], 15 [attributing medical diagnostic conclusions to "Aetna's own assigned Surgeon" and citing a report in which Dr. Martin Mendelssohn, M.D., a reviewing physician for Aetna, summarized the contents of Plaintiff's medical file]), or are broad assertions not supported by a specific citation to the record (see, e.g., id., ¶ 3 [citing hundreds of pages of the administrative record for "(t)he nature of Plaintiff's disability[] and a history thereof"]). Plaintiff is respectfully reminded that a statement of material facts must "set forth, in numbered graphs, each material fact, " and must "set forth a specific citation to the record where the fact is established." N.D.N.Y. L.R. 7.1(a)(3) (emphasis added).[3]

         With these considerations in mind, unless it otherwise notes, the Court draws the following facts from one of the party's (or both parties') Rule 7.1 Statement. Moreover, unless otherwise noted, the following facts are either expressly admitted or inadequately denied by the opposing party's response Rule 7.1 Response. (Dkt. No. 24, Attach. 2, Part II [Plf.'s Rule 7.1 Statement]; Dkt. No. 29, Attach. 3 [Def.'s Rule 7.1 Response]; Dkt. No. 25, Attach. 4 [Def.'s Rule 7.1 Statement]; Dkt. No. 28, Attach. 1 [Plf's Rule 7.1 Response].) Where appropriate, the Court also refers directly to the administrative record filed by the parties. (Dkt. No. 21 [Administrative Record ("AR")].)[4]

         1. General Background

         Defendant is the claims-paying administrator and claim fiduciary for FedEx's LTD Plan. In February 2014 (the time at which he first sought disability benefits), Plaintiff worked for FedEx as a Maintenance Technician Specialist I. According to FedEx's job description for this position, Plaintiff's working conditions included "moderate physical requirements" and lifting "[u]p to 25 pounds" 33-66 percent of the time, "[u]p to 50 pounds" less than 33 percent of the time, "[u]p to 100 pounds" less than 33% of the time, and "[o]ver 100 pounds" less than 33 percent of the time. (AR 860.)[5] As a Maintenance Technician Specialist I, Plaintiff performed "standard preventative maintenance procedures" on various machines and systems within the FedEx facility. (Id.)

         2. Plaintiff's Claim for STD Benefits and Defendant's Initial Denial

         Plaintiff sought to take disability leave starting on January 23, 2014, due to lower back pain, scoliosis, and spinal stenosis. Plaintiff filed an claim for short term disability ("STD") benefits (which was assigned claim number 9349447) and provided medical records showing that he had a history of chronic lower back pain dating back to 2008.[6] According to Plaintiff's medical records from 2008 and 2009, x-ray and MRI examinations revealed that he had various impingements, bulging disks, and extrusion, curvature of the spine, and foraminal stenosis. (AR 812 [Progress Note, dated 1/30/2009].)[7]

         Plaintiff's claim for STD benefits under FedEx's STD Plan was denied. Defendant denied Plaintiff's claim on the basis that (according to Defendant) the medical records and diagnostic test results received, along with the results of a functional capacity evaluation ("FCE") (as communicated to Defendant by Matthew Bowman, a physical therapist, because Plaintiff never provided the FCE report to Defendant), did not support his claim that he was completely disabled from performing the duties of his own occupation.[8]

         Plaintiff appealed the denial of his STD claim, asserting that he was unable to perform his job because of "back pain due to scoliosis, stenosis & osteoarthritis." (AR 790.)[9] By letter dated January 28, 2015, Defendant upheld its decision to deny Plaintiff's claim for STD benefits. In so doing, Defendant noted that, during a peer-to-peer consultation with Plaintiff's treatment provider, Dr. Harold Husovsky, M.D., "Dr. Husovky [sic] could not provide any evidence of any functional or neurological deficits." (AR 687.) However, Plaintiff was granted benefits pursuant to a New York State disability claim for the time period from January 30, 2014 to July 30, 2014.[10] Moreover, entries from Defendant's claims system reflect that Plaintiff was approved for Social Security Disability Insurance based on his back issues as of January 2014. (E.g., AR 197.)

         3. Relevant Language of the LTD Plan

         Defendant is the claims-paying administrator of the LTD Plan. Pursuant to the LTD Plan, Defendant possesses discretionary authority as follows:

The Claims Paying Administrator, shall, subject to the requirements of the Code and ERISA, be empowered to interpret the Plan's provisions in its sole and exclusive discretion in accordance with its terms with respect to all matters properly brought before it pursuant to this Section 5.3, including, but not limited to, matters relating to the eligibility of a claimant for benefits under the Plan. The determination of the Claims Paying Administrator on review of an appeal shall be made in a fair and consistent manner in accordance with the Plan's terms and its decision shall be final, subject only to a determination by a court of competent jurisdiction that the Claims Paying Administrator's decision was arbitrary and capricious.

(AR 67-68.) With respect to the burden of proof, the LTD Plan states as follows:

The burden of proof for establishing a Disability is on the Covered Employee and the Covered Employee must produce sufficient proof to prove such Disability; at no time is it the Administrator's or Claims Paying Administrator's duty or responsibility to investigate a Covered Employee's claim or otherwise gather proof in support of such Covered Employee's claim for Disability Benefits.

(AR 61.) With respect to what information may constitute "sufficient proof" the LTD Plan states as follows:

Such [sufficient] information may, as the Claims Paying Administrator shall determine, consist of a certification from the Covered Employee's attending Practitioner, in the form prescribed by the Claims Paying Administrator, information in the form of personal references, narrative reports, pathology reports, x-·rays and any other medical records or other information as may be required by the Claims Paying Administrator.

(AR 60.)

         The LTD Plan defines "Disability" or "Disabled" as "either an Occupational Disability or a Total Disability[.]" (AR 37.) To meet either of these definitions, a Covered Employee must (1) be, "during the entire period of Disability, under the direct care and treatment of a Practitioner, " and (2) "substantiate[]" his or her Disability "by significant objective findings which are defined as signs which are noted on a test or medical exam and which are considered significant anatomical, physiological or psychological abnormalities which can be observed apart from the individual's symptoms." (AR 37-38.)

         The LTD Plan defines "Occupational Disability" as follows:

[T]he inability of a Covered Employee, because of a medically-determinable physical or functional impairment . . . to perform the essential functions of his regular occupation or of a reasonable employment option offered to him by the Employer and, as a result, he is unable to earn more than 80% of his pre-disability monthly income.

(AR 41.) The LTD Plan defines "Total Disability" as follows:

[T]he complete inability of a Covered Employee, because of a medically-determinable physical or functional impairment . . . to perform the essential functions of any gainful occupation for which he is qualified on the basis of his education, training, experience, or ability, and, as a result, the Covered Employee is unable to earn more than 60% of his pre-disability monthly income for employees who have chosen the Basic Plan Option or is unable to earn more than 70% of his pre-disability income for employees who have chosen the Premiere Plan Option.

(AR 42-43.) With respect to the time at which a benefit commences, the LTD Plan states as follows:

The Disability Benefit shall commence to accrue on the day following the conclusion of all benefits payable to the Disabled Covered Employee pursuant to the FedEx Ground Package System, Inc. Short Term Disability Plan . . . on account of the same condition for which benefits are payable hereunder and shall be payable monthly during the continuation of Disability as provided herein.

(AR 47-48.)

         4. Plaintiff's Claim for LTD Benefits

         Plaintiff filed a claim for benefits pursuant to the LTD Plan, which Defendant reviewed while Plaintiff's appeal from the denial of his claim for STD benefits was under consideration. On October 17, 2014, Defendant interviewed Plaintiff by telephone. During the call, Plaintiff stated that he was experiencing back pain that had been ongoing for six years, and that his physician had advised him to limit himself in climbing ladders, and that he was unable to bend, crawl, lift, stand, or sit. Moreover, Plaintiff stated that no testing had been done in the previous six months, and that his medical treatment plan at that time was to take medication and follow up with his doctor every six months.

         a. Plaintiff's Medical Records

         At the time Defendant was initially determining Plaintiff's LTD claim, it had to rely on the information and medical records that had been submitted as part of his STD claim because Plaintiff had not provided any updated or additional documents in support of his LTD claim. Among the documents constituting his STD claim file were three medical records from Dr. Harold Husovsky, Plaintiff's family practitioner, and/or his medical practice, related to the time period from October 11, 2013, through January 22, 2014. (AR 728-29, 825-28, 829-32.) These records reflect (among other things) that Plaintiff previously underwent surgery on his knee, left shoulder (in 2009), and right shoulder (in 2010). (AR 826, 842.) However, these records do not discuss what (if any) functional impairments Plaintiff has as a result of his lower back pain and related diagnoses.[11]

         Dr. Husovsky also completed an Attending Physician Statement ("APS"), executed in January 2014, as well as two Attending Physician Recertification Statements ("APRS"), dated April 7, 2014, and June 26, 2014, respectively (AR 736, 800-01.) In the APS, Dr. Husovsky stated that Plaintiff was disabled from work starting on January 23, 2014, and for an "indefinite" period, but did not provide any clinical information or objective findings related to a functional impairment. (AR 736.) In the APRSs, Dr. Husovsky stated that Plaintiff was experiencing "[c]hronic low back pain" that "prevent[ed] any type of labor" and had not improved. (AR 800-01.)

         Plaintiff underwent an MRI examination in 2013, and, in a medical report dated December 2, 2013, Dr. Barbara Henriquez, M.D., observed that the MRI reflected "[n]o significant interval changes" compared to the results of an MRI examination completed in October 2009.[12] (AR 719-20.) Similarly, x-ray examinations of Plaintiff's pelvis, thoracolumbar spine, and lumbar spine were completed in 2013 and compared with imaging taken in 2008 and 2009. (AR 721-26.) These comparisons reflected no significant interval changes since the earlier x-ray examinations, but the thoracolumbar spinal x-ray did reveal "extensive degenerative changes . . . throughout the thoracolumbar spine[.]" (AR 721, 723, 725.)

         b. Independent Peer Review of Dr. James Wallquist, M.D.

         In February 2014 (in conjunction with Plaintiff's claim for STD benefits), Defendant retained Dr. James Wallquist, M.D., a board certified orthopedic surgeon, to perform an independent peer review of Plaintiff's medical records. As part of his peer review, Dr. Wallquist conducted a peer-to-peer telephone conference with Dr. Husovsky on February 13, 2014. During the conference, Dr. Husovsky advised Dr. Wallquist that Plaintiff completed an FCE in January 2014, but that he (Dr. Husovsky) was "unable to provide the summary relative to [Plaintiff's] level of functionality[.]" (AR 715 [Physician Review Report of Dr. Wallquist, 2/19/2014].) Dr. Husovsky recommended that Dr. Wallquist contact Mr. Bowman, the physical therapist who performed the FCE. (Id.) With respect to "the issue of functional impairment and disability, " Dr. Husovsky stated that he "would defer that decision to the orthopedist or physiatrist" to whom Dr. Husovsky had referred Plaintiff in January 2014. (Id.) However, Defendant did not receive any orthopedic or physiatrist records for its review (and, as a result, none were provided to Dr. Wallquist as part of his peer review). Dr. Wallquist contacted the office of Mr. Bowman, who advised Dr. Wallquist that, based on the results of the FCE, Plaintiff "demonstrated the ability to lift 60-70 pounds ...

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