United States District Court, D. Colorado
T. BABCOCK, JUDGE
suit under the Employment Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq.
(“ERISA”), Marie Kathleen West challenges Aetna
Life Insurance Company's (“Aetna”) decision
to terminate her long-term disability benefits. Ms. West asks
this Court to find that Aetna's determination was
arbitrary and capricious, to order Aetna to reinstate her
benefits, and to award interest on back due amounts and
attorneys' fees and costs. Aetna counters that this Court
should affirm its decision denying benefits, or if this Court
finds error, remand the case to the plan administrator for a
renewed evaluation of Ms. West's claim. Aetna filed an
Administrative Record (“AR”) (ECF No. 38), and
after briefing (ECF Nos. 57, 61, 65, 66), the parties filed a
joint motion for a judgment on the administrative record (ECF
the joint motion for judgment (ECF No. 68), and I will ENTER
JUDGMENT in favor of Ms. West. Aetna's decision
terminating benefits was inconsistent with the Social
Security Administration's (“SSA”) decision
awarding them and every opinion of Ms. West's treating
physicians. As I describe below, its decision was arbitrary
and capricious and was not based on substantial evidence. I
AWARD Ms. West back-due benefits plus interest at the
statutory rate, and I ORDER Aetna to reinstate her benefits.
I also AWARD Ms. West reasonable attorneys' fees and
costs under 29 U.S.C. § 1132(g).
West shall file a brief and accounting of the back-due
benefits plus interest, attorney fees, and costs she seeks to
recover from Aetna on or before March 6,
2018. Aetna shall file a response brief and any
objections to Ms. West's accounting on or before
March 20, 2018. Ms. West may file a reply
brief on or before March 30, 2018.
Aetna's Long-Term Disability Plan
September 4, 2007, Ms. West began working as a contract
administrator at Ciber, Inc. She was a participant in a
long-term disability plan that Aetna administered and
underwrote. The plan defines disability as:
From the date that you first become disabled and until
Monthly Benefits are payable for 24 months, you will be
deemed to be disabled on any day if:
• you 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
After the first 24 months that any Monthly 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
(emphases omitted). A “reasonable” occupation is
“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 60% of your adjusted
predisability earnings.” AR 22 (emphasis omitted). The
plan gives 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.” AR 62.
Ms. West's Accident and Aetna's Initial Approval of
October 22, 2007, Ms. West fell on a concrete stair and hit
her head. AR 599. She may have lost consciousness and had
some “seizure activity.” AR 589; see
also AR 525. The next day, she went to her primary care
physician for treatment, and he indicated she had lost
consciousness and had a lump on her head. AR 473. She also
went to a chiropractor for care soon afterward. AR 462-64,
715-17. It turns out she had fractured her spine. AR 1707.
the fracture, Ms. West continued to work for several months
after the fall and had conservative treatments like steroid
injections to address her pain. AR 599, 713. The conservative
treatments failed, Ms. West's symptoms worsened, and on
July 30, 2008, she underwent a two-level vertebrae fusion. AR
1418-19. Ms. West returned to work about two months after the
surgery. AR 589-91. However, she suffered from “severe
axial pain, neck pain and burning pain down both of her
arms.” AR 506, see also, e.g., AR 525. An
April 2008 MRI revealed disc herniation at the cervical 5-6
and 6-7 levels, mild degenerative disc disease, and moderate
central canal stenosis at the cervical 6-7 levels. AR 734.
She was eventually told to stop working and went on
short-term disability in fall 2008. AR 589.
spring 2009, Ms. West filed a long-term disability claim with
Aetna. AR 65. Soon afterward, Ms. West had a second surgery.
AR 497-507. Dr. Evalina Burger performed the surgery in May
2009; however, she noted that she was “not confident
that we will be able to relieve all of [Ms. West's]
pain.” AR 516. At the May 2009 surgery, the hardware
from the first fusion was removed, one disc was grafted, two
discs were re-plated, and a third was replaced. AR 506. A
postoperative x-ray showed a “good position of her
hardware with no apparent hardware failure.” AR 1546.
When Ms. West was discharged from the hospital after the
surgery, she was directed to avoid “heavy lifting,
bending, or twisting for the next 6 weeks.” AR 498. A
severe post-operative bone infection complicated her recovery
and required six weeks of intravenous antibiotics. AR 484-88,
Ms. West initially reported that her right-arm weakness and
neck pain were “100 percent gone, ” AR 488, she
also complained of headache, myalgia (muscle pain), shortness
of breath, nausea, intermittent tinnitus, and mild dysuria
(pain or discomfort when urinating), AR 489. Soon after the
surgery, Ms. West reported continued neck and arm pain, which
Dr. Burger suspected may be from prior nerve damage. AR 1533.
She also continued to use narcotic pain medicine.
Id. A postoperative CT scan of her cervical spine
from May 2009 showed that the prosthesis at the cervical 4-5
level “extends approximately 2mm into the ventral
canal, without significant spinal stenosis.” AR 502.
Nevertheless, Dr. Burger concluded in August 2009 that
overall, Ms. West was doing “remarkably well, ”
with improved range of motion and only slight weakness on the
right side. AR 1533. But she also opined both in April 2009
and October 2010 that Ms. West could not work. AR 1816-21.
She opined in April 2009 that Ms. West's disability was
permanent. AR 1817.
2009, AETNA approved Ms. West's claim for disability,
determining she was unable to work at her “own
occupation” as a contract administrator at Ciber
beginning several months earlier, on January 26, 2009. AR
738-39. AETNA paid benefits during the entire 24-month
“own occupation” term of the plan. Id.
The records from that two-year “own occupation”
disability period reflect regular complaints of continued
pain from Ms. West. The records also show that Ms. West used
various pain medications to alleviate her symptoms.
E.g., AR 763. At times, she reported some relief
from the medications. Id. At other times, she
reported acute pain. AR 764-65. She managed to reduce, but
not eliminate, her opioid use by late summer 2009. AR 766-67.
She also reported withdrawal symptoms and acute pain during
periods when her prescriptions ran out. Id.
in January 2011, Aetna awarded Ms. West benefits under the
“any reasonable occupation” provision of the
plan, meaning it determined she was unable to work at any
reasonable occupation. AR 828. Like the records from the
two-year period preceding it, the records from 2011 reflect
Ms. West's continued struggles with pain management. They
also reflect some side effects from long-term opioid use. For
instance, in February 2011, Ms. West went to Rose Medical
Center in Denver, Colorado with severe abdominal pain,
vomiting, nausea, and a headache. AR 1440. She also reported
continued neck pain. Id. She went to Rose Medical
Center again in April 2011 with similar problems. AR 1449.
One physician who treated her suspected that Ms. West's
gastrointestinal issues were tied to the “large amount
of narcotics” Ms. West was taking. AR 1453. In May
2011, Ms. West's father took her to Rose Medical Center
with decreased consciousness and slurred speech. AR 1459. The
treating physician described Ms. West's “history of
narcotic dependence, ” and suspected a combination of
sleep deprivation, a migraine, and chronic narcotic use
caused her altered state. AR 1461, 1465. An ultrasound was
normal, AR 1495, as was a CT scan of her head, AR 1492. An
MRI showed findings “consistent with migraines or other
causes of minimal microvascular disease” and no
evidence of acute ischemic injury (stroke). AR 1494.
2011, Ms. West began seeing Dr. Jason Peragine for pain
management. AR 876-78. She reported her symptoms were
“moderate in severity (7/10).” AR 876. Dr.
Peragine planned to slowly taper her use of pain medications
and weighed also using trigger point injections for pain
management. AR 878. She was able to decrease her opioid use
somewhat, but she continued to have pain in her neck,
shoulder, and right arm. AR 873. When she decreased it
further, she experienced significant pain. AR 871. She tried
injections, and they provided the best pain relief she had
ever had, but they only lasted about a week. AR 867, 869. By
November 2011, Ms. West reported that the effectiveness of
the injections had decreased. AR 865 (reporting that the
injections only provided 15% short-term improvement in neck
Aetna's Termination of Benefits and SSA's Disability
February 2012, Aetna told Ms. West it needed to conduct an
independent medical evaluation “for further disability
evaluation.” AR 907. The amount already paid out on Ms.
West's claim appears to have triggered this next-level
review. See AR 229 (reporting that “approval
limit exceeded Benefit Level Authority Review
created”). At Aetna's request, Ms. West completed
an “activities questionnaire, ” where she
explained she still suffered from chronic pain and vertigo,
did very little in the way of activities, and could not
return to work. AR 993-98. Dr. Peragine also concluded, after
treating her for over a year, that Ms. West was “unable
to work.” AR 1040 (January 2013 opinion); AR 1832
(September 2012 opinion); AR 1827-29.
Aetna's insistence, and with expert assistance it helped
her obtain, Ms. West applied for Social Security Disability
Income in March 2012. AR 903-04, 916. SSA ultimately found
her totally disabled as of March 1, 2009. AR 1192-1201. Aetna
reduced its payments to Ms. West by the amount of the SSA
award. AR 10, 1957.
February 2013, Aetna asked Dr. Stuart Rubin, a rehabilitation
and physical medicine specialist, to independently review Ms.
West's medical records and opine on her physical (but not
mental) impairments. AR 1050. The report does not specify
which records Dr. Rubin reviews. It indicates he reviewed
“all the records listed above, ” but there is no
list of records above. Id. Dr. Peragine's
contact information is listed above, which suggests Dr. Rubin
at least reviewed his records. Id. Dr. Stuart also
tried to consult with Dr. Peragine about Ms. West's
impairments, but after a failed game of phone tag, the two
never spoke. AR 1051. Dr. Rubin opined, “based on the
information available for review, ” that
“functional impairment is not supported from 11/1/2012
to 11/1/2013.” AR 1056-57. He found “no
indication the claimant is experiencing any adverse
medication effects during the time period in question.”
AR 1056. With her medication regimen “stable, ”
Dr. Stuart concluded that Ms. West could work full-time in a
sedentary job. AR 1056. In April 2013, Aetna sent Dr.
Stuart's report to Dr. Peragine and asked him to opine on
it within 15 days, AR 1053-54, but Dr. Peragine never
responded because Ms. West stopped seeing him several months
earlier when she started seeing Dr. Andrew Hong a pain
management specialist, AR 1063, 1922.
2013, Aetna sent Ms. West a letter terminating her benefits.
AR 1060. Aetna advised Ms. West that while it previously
advised her to apply for Social Security Disability benefits
based on “medical and vocational information which
indicated [she] was totally disabled, ” new
information-Dr. Stuart's report and Dr. Peragine's
statement that he was no longer treating Ms. West-
demonstrated she was no longer disabled under Aetna's
disability plan. AR 1063. The letter notified Ms. West of her
right to appeal and told her she could provide additional
information in her appeal. Id.
Ms. West's Appeal
West submitted an appeal in October 2013. The appeal included
the entire record from her Social Security Disability
proceeding and other medical records. It included a
“Concentration Residual Functional Capacity
Questionnaire” completed by Dr. Hong. He described some
side effects from Ms. West's medications and concluded
her memory, concentration, understanding, and social
interaction skills were impaired. AR 1139-40. He concluded
she was unable to perform any job over an 8-hour work day. AR
1142. Dr. Hong also opined that she had physical limitations
that impaired her ability to work. AR 1901. Dr. Hong's
records also included a note reporting that, after several