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West v. Aetna Life Insurance Co.

United States District Court, D. Colorado

February 14, 2018




         In this 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 No. 68).

         I GRANT 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).

         Ms. 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.

         I. FACTS

         A. Aetna's Long-Term Disability Plan

         On 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 predisability earnings.
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
• injury

         AR 8 (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.

         B. Ms. West's Accident and Aetna's Initial Approval of Benefits

         On 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.

         Despite 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.

         In 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, 498, 505.

         While 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.

         In July 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.

         Beginning 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.

         In June 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 pain).

         C. Aetna's Termination of Benefits and SSA's Disability Award

         In 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.

         At 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.

         In 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.

         In May 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.

         D. Ms. West's Appeal

         Ms. 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 ...

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