OPINION AND ORDER
JAMES L. GRAHAM, District Judge.
This is an action filed by Angela Schofield, a former employee of Nationwide Mutual Insurance Company ("Nationwide"), pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(b). Plaintiff seeks payment of long-term disability ("LTD") benefits under the terms of the Nationwide Insurance Companies and Affiliates Plan for Your Time and Disability Income Benefits ("the Plan"). Nationwide is the sponsor of the Plan. Administrative Record ("AR") 343, Plan § 1.55. The Plan administrator is the Benefits Administrative Committee ("the Committee"). AR 343, Plan § 1.54. The members of the Committee are appointed by Nationwide's board of directors. AR 338, Plan § 1.12. Aetna is the claims administrator. This matter is now before the court on the cross-motions of the parties for judgment on the administrative record.
I. History of the Case
A. Plan Provisions Regarding LTD Benefits
The Plan provides for both short-term and long-term disability benefits. In regard to long-term disability ("LTD") benefits, § 4.03.02 of the Plan provides:
AR 362, Plan §4.03.02. The Plan, §1.39, further provides:
AR 342-43, Plan § 1.39. "`Activities of Daily Living' means normal daily activities including, but not limited to, bathing, dressing, eating and using the toilet." AR 337, Plan § 1.03. "`Substantial Gainful Employment' means: For Active Associates, any occupation or employment from which an individual may receive an income equal to or greater than one-half of such individual's Covered Compensation as of her Date of Disability." AR 344, Plan § 1.63. It is the responsibility of the employee to provide the claims administrator with documentation supporting a claim for LTD benefits. AR 375, Plan § 8.02.02(b).
The Plan provides for two levels of appeal from the claim administrator's denial of a claim for LTD benefits. AR 377, Plan § 8.02.05(a). The first level of appeal is to the claims administrator. AR 377-78, Plan § 8.02.05.01. The appeal determination is made by an individual who did not make the initial adverse benefit determination, and no deference is accorded the initial determination. Plan § 8.02.05.01 (f). When the appeal is based in whole or in part on a medical judgment, the claims administrator handling the appeal "shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment" and who was not consulted in connection with the initial adverse determination. Plan § 8.02.05.01(g) and (I).
The second level of appeal is to the plan administrator (the Committee). AR 378, Plan § 8.02.05.02. The Plan provides:
Plan § 8.02.05.02(a).
B. Plaintiff's Application for LTD Benefits
Plaintiff was previously employed by Nationwide as an IT Specialist. Plaintiff's last day of work was July 14, 2014. Plaintiff took a medical leave of absence due to pain in her left arm, which was attributed to the removal of veins from that arm for grafting during a 2012 coronary artery bypass surgery. After receiving short-term disability benefits, plaintiff applied for LTD benefits.
In considering plaintiff's claim, Aetna reviewed the records of plaintiff's primary care physician, Dr. Nancy Graesser, D.O., and Dr. Brandon Thompson, M.D., a specialist in physical medicine and rehabilitation. Aetna also obtained a review of plaintiff's medical records by an independent medical examiner, Dr. Elena Antonelli, M.D., who is board certified in preventive and occupational medicine. Dr. Antonelli provided a report dated February 10, 2015, expressing the opinion that plaintiff's medical records did not support a finding of impairment or functional restrictions which would preclude plaintiff from engaging in any occupation. AR 51. Dr. Antonelli then had a peer review discussion with Dr. Graesser, who indicated that plaintiff was unable to perform her IT job due to the pain in her arm, which would preclude her from typing, and because her medication (Gabapentin) makes her very drowsy. Dr. Antonelli issued a supplemental report on March 11, 2015. AR 67. Dr. Antonelli concluded that the additional information from Dr. Graesser did not change her opinion. AR 68.
In a letter dated March 18, 2015, Aetna notified plaintiff that her claim for disability benefits was denied. AR 128. The letter summarized the medical records received from Dr. Graesser and Dr. Thompson. The letter also addressed the peer review conference of Dr. Graesser and Dr. Antonelli. Aetna noted that Dr. Graesser addressed plaintiff's ability to perform her current IT job, but that the issue being determined was not plaintiff's ability to perform that job, but rather her ability to perform the duties of any occupation. Aetna concluded that the information provided was not sufficient to support plaintiff's impairment from any reasonable occupation. AR 129.
C. First Level Appeal
Following the denial of benefits, plaintiff retained counsel, who sent an appeal letter to Aetna dated April 16, 2015. AR 138. During the appeal, Aetna reviewed treatment records from Dr. Graesser and Dr. Thompson, as well as records from Dr. Carolyn Neltner, a neurosurgeon, and a physical capacity evaluation completed by Laura Miller, a physical therapist. Aetna also obtained a review of plaintiff's medical records by an independent consultant, Dr. Malcolm McPhee, M.D., who is board certified in physical medicine and rehabilitation. In a report dated June 24, 2015, Dr. McPhee summarized the medical records, including Dr. Graesser's diagnosis of reflex sympathetic dystrophy ("RSD")
By letter dated July 30, 2015, Aetna advised plaintiff's counsel that plaintiff's appeal was denied. AR 169-172. The letter included a detailed summary of plaintiff's medical records. It was noted that tests were not performed to substantiate a diagnosis of CRPS and that there was no evidence to support a total lack of functional capacity. AR 171. Aetna further observed that although Laura Miller, the physical therapist, indicated in her physical capacity evaluation, AR 131-135, that plaintiff could only function at less-than-sedentary strength levels for one hour at a time, she offered no opinion concerning plaintiff's level of impairment while taking medication (plaintiff did not take her pain medication the day of the evaluation). Dr. Graesser's opinion that plaintiff was unable to work was rejected as not being supported by the examination findings of plaintiff's other treating physicians. AR 171. Aetna concluded that although plaintiff had limited use of her left upper extremity, "we do not find that she is incapable of engaging in substantial gainful employment." AR 171-72. The letter also noted that a vocational assessment was completed to review plaintiff's work and education history and her transferable skills, and the assessment identified an alternative occupation, that of project director,
D. Second Level Appeal
By letter dated August 3, 2015, plaintiff's counsel notified Aetna Nationwide Appeals of plaintiff's intent to appeal the decision to the Committee. AR 174-75. During the appeal, the Committee reviewed the appeal letter and Aetna's claim file. The Committee also arranged for an independent medical exam, which was completed by Dr. Steven S. Wunder, M.D., who is board certified in physical medicine and rehabilitation. In a report dated March 5, 2016, Dr. Wunder summarized the results of his physical examination of plaintiff, and also described the medical records which he reviewed. AR 5-9. Dr. Wunder found that plaintiff did not meet the criteria for the previous diagnoses of CRPS/RSD. AR 9. He also concluded that there was "no evidence of contraindication to working eight hours a day, five to seven days a week." AR 9. By letter dated March 24, 2016, plaintiff's counsel was advised that, after reviewing and considering all of the information in the administrative record, the Committee affirmed the denial of LTD benefits. AR 1-3. Plaintiff then filed the instant action.
II. Standard of Review
A. Applicable Standard of Review
A plan administrator's denial of benefits is reviewed de novo unless the benefit plan specifically gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan.
The Plan, at § 9.02, provides:
AR 380, Plan § 9.02(a) and (b). The court finds that the arbitrary and capricious standard of review applies in this case.
B. Conflict of Interest
Plaintiff contends that a conflict of interest exists in this case which should be considered in reviewing the denial of benefits. In applying the arbitrary and capricious standard, a court will weigh as a factor whether a conflict of interest existed on the part of the decision-maker in determining whether there was an abuse of discretion.
Plaintiff argues that a structural conflict of interest exists because Nationwide is the Plan administrator and is the payor of benefits. However, under the terms of the Plan, Nationwide is the Plan sponsor, not the Plan administrator. AR 343, Plan §§ 1.54 and 1.55. The Plan is financed primarily by employee contributions; Nationwide is only required to make contributions to the Plan when there is a shortfall of funds necessary to pay benefits. AR 388, Plan §§ 12.01, 12.03. This lessens the potential for any conflict of interest due to any motivation on Nationwide's part to restrict the payment of benefits. In addition, Nationwide is removed from the decisionmaking process, because it is the Committee, as Plan administrator, which has the ultimate say at the second appeal level as to whether benefits will be awarded.
The record contains no evidence of a Plan history of biased claims administration. The Plan's two levels of appeal, each featuring review by an individual who did not make the initial adverse benefit determination, militate against a finding that the claims process was tainted by any predisposition to deny the claim.
III. Denial of Continued LTD Benefits
A. Arbitrary and Capricious Standard of Review
In reviewing the decision to deny plaintiff's application for continued LTD benefits, this court applies the arbitrary and capricious standard of review. Review under the arbitrary and capricious standard is "extremely deferential."
B. Decision to Deny Benefits
The Plan argues that the decision to deny plaintiff's claim for LTD benefits was not arbitrary and capricious, particularly because the Plan relied on the medical analysis and opinions of three independent experts and the results of an independent medical examination in concluding that the record did not support a finding that plaintiff was disabled from engaging in substantial gainful employment.
In considering plaintiff's claim for LTD benefits, Aetna, the Plan claims administrator, obtained a review of plaintiff's medical records by Dr. Elena Antonelli, an independent medical examiner specializing in preventive and occupational medicine. In her report, Dr. Antonelli noted the statement of Dr. Nancy Graesser, plaintiff's primary care physician, that plaintiff has cervical spinal stenosis and coronary artery disease, and that she was unable to work due to persistent pain with any movement of her left arm.
In the March 18, 2015, letter denying plaintiff's claim, Aetna referred to the medical records submitted by plaintiff as well as Dr. Antonelli's report. AR 128-129. Aetna concluded that the medical records, including the records of plaintiff's physicians, Dr. Graesser and Dr. Brandon Thompson, did not provide sufficient information "to support any type of impairment that would prevent [plaintiff] from performing the duties of any reasonable occupation from a physical perspective." AR 129.
In considering plaintiff's appeal, Aetna arranged for a review of the file by an independent expert, Dr. Malcolm McPhee, M.D., a specialist in physical medicine and rehabilitation. In his June 24, 2015, report, Dr. McPhee summarized the medical records in detail, and conducted peer review conversations with Drs. Graesser and Thompson. AR 159-164. Dr. McPhee indicated that plaintiff's history of coronary artery disease would not preclude work activity at a sedentary level. AR 164. Dr. McPhee disagreed with Dr. Thompson's diagnosis of CRPS as a possible cause of plaintiff's condition, noting that no tests typically used to confirm a diagnosis of CRPS were performed, and that a majority of the symptoms and signs characteristic of CRPS were not reported by plaintiff's treating physicians. AR 164. He concluded that the minimal findings and lack of chronic features would be insufficient to expect severe pain attributable to CRPS. AR 165. Dr. McPhee also concluded that the March 24, 2015, physical capacity exam completed by Laura Miller, a physical therapist,
In the July 30, 2015, letter denying plaintiff's appeal, Aetna summarized plaintiff's medical records in detail. AR 169-171. Aetna also referred to information from Dr. McPhee's report concerning his disagreement with the CRPS diagnosis and his conclusions regarding plaintiff's level of functioning. Aetna concluded that Dr. Graesser's opinion that plaintiff is unable to work "is not supported by the examination findings of her other treating physicians." AR 171. The decision letter further stated: "Although we agree with Dr. Graesser that Ms. Schofield has limited use of her left upper extremity, we do not find that she is incapable of engaging in substantial gainful employment." AR 171-172. The letter also referred to a vocational assessment which identified the occupation of Project Director as being a job which plaintiff could perform. AR 172.
In considering plaintiff's second level appeal, the Committee reviewed Aetna's file and obtained a records review and independent medical examination by Dr. Steven Wunder, M.D., a specialist in physical medicine and rehabilitation. In a report dated March 5, 2016, Dr. Wunder described the observations he made during plaintiff's physical exam and also summarized the medical records he reviewed. AR 105-109. The history he took from plaintiff is as follows:
As to his physical examination of plaintiff, Dr. Wunder noted:
Dr. Wunder completed a capabilities and limitations form indicating that plaintiff had no restrictions except in the category of heavy weight lifting. AR 4. He concluded that plaintiff was capable of working eight hours a day, five to seven days a week. AR 9. Dr. Wunder reported that plaintiff's subjective complaints were not supported by objective findings, that there were no objective abnormalities present on exam, and that, although plaintiff may have some mild localized neuropathic pain from an incomplete radial sensory neuropathy, she did not meet the criteria for a diagnosis of CRPS/RSD. AR 9.
In the March 24, 2016, decision letter, the Committee indicated that it had reviewed all of the information in the administrative record and referred specifically to Dr. Wunder's report. AR 2-3. The Committee determined that plaintiff did not meet the definition of LTD Disabled and upheld Aetna's denial of benefits as being supported by the administrative record. AR 3.
C. Plaintiff's Arguments
1. Consideration of Plaintiff's Pain and Drowsiness
Plaintiff argues that the independent expert opinions and the Plan's decisions ignored plaintiff's pain and the high doses of Gabapentin she takes, which causes drowsiness. The administrative record reveals otherwise.
2. Consideration Treating Physician Opinions
Plaintiff further argues that the Plan acted arbitrarily and capriciously in rejecting the opinion of her treating physician, Dr. Graesser, that she was unable to work, without offering any explanations for discounting her allegedly disabling pain. In
Plaintiff relies on
The circumstances in the instant case are easily distinguished. Here, the Plan and the independent experts addressed the records of plaintiff's treating physicians and considered their opinions. Although specific explanations were not required under
At the first appeal level, Dr. McPhee discussed at length why he disagreed with the diagnosis of CRPS, noting that the majority of symptoms typical of this condition were not present, and that tests typically used to confirm this diagnosis were not performed. AR 164-165. He also discussed the issue of drowsiness as a side effect of Gabapentin with Dr. Thompson, who stated that adjustments in the amount and timing of doses could be made, and alternative medication could be considered. AR 164-165. In disagreeing with a finding of disability, Dr. McPhee also relied on the physical capacity study performed by Laura Miller, which he concluded showed no abnormality of the dominant right upper extremities "and some self-limited left hand function due to pain report although not severe enough to preclude work activity with restrictions." AR 165.
Aetna relied on Dr. McPhee's report in concluding that the usual symptoms indicative of CRPS were not present in plaintiff's case. AR 171. Aetna acknowledged plaintiff's persistent complaints of pain but found "no evidence to support a total lack of functional capacity." AR 171. Aetna also noted that Laura Miller completed the physical capacity evaluation on a day when plaintiff had not taken her pain medication, and that she offered no opinion as to the levels of plaintiff's impairment while taking medication. AR 171. Aetna relied on Dr. Thompson's statement that the next step to take in the event of drowsiness was to adjust the medication levels. Aetna explained that Dr. Graesser's opinion that plaintiff is unable to perform gainful activity "is not supported by the examination findings of her other treating physicians." AR 171. Aetna also stated that although it "agreed with Dr. Graesser that Ms. Schofield has limited use of her left upper extremity, we do not find that she is incapable of engaging in substantial gainful employment." AR 171-172.
Dr. Wunder referred to Dr. Graesser's records documenting plaintiff's complaints of pain, but noted that there were no objective findings in those records. AR 8. Dr. Wunder commented that the EMG and nerve conduction studies did not support a diagnosis of cervical radiculopathy. AR 8. Dr. Wunder stated that plaintiff's subjective complaints were not supported by objective findings, and that there were no objective abnormalities noted during his examination of the plaintiff. He also noted that plaintiff did not meet the criteria for a diagnosis of CRPS/RSD. AR 9.
The March 23, 2016, decision letter of the Committee stated that the Committee had reviewed Aetna's claim file and the results of the independent medical examination. AR 2. The letter noted that Dr. Wunder did not "find any evidence of contraindication to working eight hours a day, five to seven days a week. The letter also noted that the Committee "upheld Aetna's decision" as being "supported by the administrative record." Although the letter did not specifically discuss the documents in the administrative record, the Committee implicitly adopted the thorough reasoning contained in Aetna's decision letters by upholding Aetna's decision. The Plan provided adequate reasons for discounting the disability opinions of plaintiff's treating physicians, and did not act arbitrarily and capriciously in doing so.
3. References to Lack of Objective Evidence
Plaintiff also argues that the Plan impermissibly required only objective evidence as proof of disability, and that the references by Aetna and the independent experts to the lack of objective evidence imposed an additional burden on her, not found in the Plan, to prove disability. However, the Plan letters and the reports of the independent experts indicate that all medical documents in the administrative record were considered, including those describing plaintiff's subjective complaints of pain, and that the Plan did not focus solely on objective evidence or the lack thereof.
As to the references to the lack of objective or clinical evidence, the Sixth Circuit has noted that "`[r]equiring a claimant to provide objective medical evidence of disability is not irrational or unreasonable,' even when such a requirement does not appear among the plan terms."
In this case, Dr. Antonelli stated that "Dr. Graesser has not provided any clinical information as to the claimant's inability to work based on clinical findings and these limitations appear to be based primarily on her history of several medical conditions." AR 55. Aetna explained that Dr. Graesser's opinion that plaintiff is unable to perform gainful activity "is not supported by the examination findings of her other treating physicians." AR 171. Dr. Wunder referred to Dr. Graesser's records of plaintiff's complaint of pain, but noted that there were no objective findings in those records. AR 8. Dr. Wunder stated that plaintiff's subjective complaints were not supported by objective findings, and that there were no objective abnormalities noted during his examination of the plaintiff. AR 9.
These were valid observations which could be considered by the Committee in determining the weight to be assigned to the opinions of plaintiff's treating physicians, particularly since the Plan in this case places the burden on plaintiff as the claimant to prove LTD disability. See AR 362, Plan §4.03.02(a) and (c)("an Active Associate must present evidence to the satisfaction of the Plan Administrator of ... significantly increased physical or mental impairments such as a significant loss of physical functional capacity"). The Plan's consideration of the lack of objective evidence was not arbitrary and capricious.
4. "Cherry-Picking" of Medical Evidence
Plaintiff further contends that the Plan engaged in "cherry-picking" the medical evidence, thereby denying her a fair review of her claim. "Cherry-picking" occurs where a plan focuses on certain parts of an administrative record while disregarding other reliable evidence. That did not occur here. A plan does not engage in "cherry-picking" where, as here, the Plan gave due consideration to the opinions of the claimant's doctors, and where the expert findings rejecting those opinions were reasonable in light of the bulk of the administrative record.
Plaintiff argues that the Plan acted improperly by focusing in the July 30, 2015, denial letter on the physical capacity examination performed by Laura Miller by noting that the examination report provided no evidence regarding plaintiff's abilities when taking pain medication.
The Plan provided plaintiff with a fair review procedure. The Plan provided for not one, but two levels of appeal. Plaintiff's records were reviewed by three independent experts in occupational or rehabilitative medicine. The Committee even went a step beyond the requirement that it "consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment,"
The ultimate issue in an ERISA denial of benefits case is not whether discrete acts by the plan administrator are arbitrary and capricious, but whether its ultimate decision denying benefits was arbitrary and capricious, as determined from a review of the whole of the administrative record.