United States District Court, D. New Hampshire
J. McAuliffe Judge
Elizabeth Senechal, brings suit against Aetna Life Insurance
Company ("Aetna") under the Employee Retirement
Income Security Act ("ERISA), 29 U.S.C. § 1001
et seq. She challenges Aetna's decision to
terminate long-term disability benefits provided under an
employee welfare plan. Both parties have filed motions for
judgment on the administrative record, and, in support, have
submitted a joint statement of disputed material facts. Each
party also submitted a statement of disputed material facts.
For the reasons that follow, the court denies both motions
for judgment on the administrative record, and remands the
matter for further administrative proceedings consistent with
conclusions reached in this case are heavily rooted in the
factual background, and must be understood in context. All of
which makes it necessary, or perhaps merely useful, to lay
out the context in greater detail than would ordinarily be
Senechal is 54 years old. She worked as an Assistance
Coordinator for ADP Total Source, Inc. ("ADP"),
beginning her employment on May 5, 2009. In that capacity,
Senechal coordinated medical and travel assistance for
ADP's customers. Administrative Record ("R.")
at D00462. The physical demands of the position were light.
Id. at D01437.
provides its employees with a group disability insurance
benefit plan, underwritten by a group accident and health
insurance policy purchased from Aetna (the
"Policy"). The Policy designates Aetna as the
plan's claim fiduciary under ERISA, "with complete
authority to review all denied claims for benefits under
[the] Policy." R. at D00029. The Policy further
[Aetna] shall have discretionary authority to determine
whether and to what extent eligible employees and
beneficiaries are entitled to benefits and to construe any
disputed or doubtful terms under this Policy, the Certificate
or any other document incorporated herein. [Aetna] shall be
deemed to have properly exercised such authority unless [it]
abuse[s] [its] discretion by acting arbitrarily and
capriciously. [Aetna] has the right to adopt reasonable
policies, procedures, rules and interpretations of this
Policy to promote orderly and efficient administration.
D00029. As an ADP employee, Senechal participated as a
beneficiary in the Long Term Disability Plan (the
"Plan"), which was administered and underwritten by
qualify for long term disability benefits, the Plan required
a covered employee to meet the "test of disability,
" defined by the Policy as follows:
the date that you first become disabled and until monthly
benefits are payable for 24 months[, ] you meet the test of
disability on any date that:
• You cannot perform the material duties of
your own occupation solely because of an
illness, injury or disabling pregnancy-related
• Your earnings are 80% or less of your adjusted
After the first 24 months of your disability that
monthly benefits are payable, you meet the plan's test of
disability on any day you are unable to work at any
reasonable occupation solely because of an
illness, injury or disabling pregnancy-related
D00047 (emphases in original). The Plan defines
"reasonable occupation" as "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."
Id. at D00065 (emphasis in original).
Plan describes circumstances that trigger termination of an
employee's eligibility for long term disability benefits,
• The date you no longer meet the [long term disability]
test of disability, as determined by Aetna;
• The date you fail to provide proof that you meet the
[long term disability] test of disability;
• The date an independent medical exam report or
functional capacity evaluation does not, in
Aetna's opinion, confirm you are disabled;
• The date your condition would permit you to:
o Work; or
o Increase the hours you work; or
o Increase the number or types of duties you perform in your
own occupation but you refuse to do so.
Id. at D00048 (emphases in original).
March of 2010, Senechal exacerbated a preexisting neck and
right upper extremity injury when she lifted a box of bottled
water. She developed severe pain on the right side of her
neck that radiated to her right upper arm. R. at D00428. A
subsequent MRI revealed degenerative disc disease most
significant at the C5-C6 interspace, and she was later
diagnosed with a herniated disc, cervical spondylosis without
myelopathy, and cervicalgia. Id. at D00431; D00433.
continued to work for ADP through October 3, 2010, when she
stopped working due to pain. She underwent anterior cervical
spine surgery in November of 2010. But, following surgery,
Senechal continued to suffer from degenerative arthritis of
her neck and back. Id. at D00853. In connection with
her recovery from surgery, another MRI was performed on
February 2, 2011, to assess a mass on her thoracic
spine.Senechal is allergic to the contrast dye
frequently used during MRIs, and suffered an anaphylactic
shock during the procedure. That event seemingly led to some
exacerbation of an underlying asthma condition and Chronic
Obstructive Pulmonary Disease. Those conditions also caused
her severe joint pain. Senechal was also diagnosed as
suffering from chemical sensitivity syndrome. Her medical
conditions resulted in multiple hospitalizations, and
required near constant medication, including prednisone.
Senechal either currently suffers from or has suffered from
polyarthritis, fibromyalgia, osteoarthritis, peptic ulcer
disease, kidney stones, lumbar disc degenerative joint
disease, a right hip fracture and reconstructive surgery,
right knee arthroscopic surgery, and a traumatic tendon
repair of her right foot. R. at D003085.
Applies for Disability Benefits
October 18, 2010, Senechal submitted a claim to Aetna for
short term disability benefits. (Aetna was also the
administrator of ADP's short term disability plan.) In
support of her claim, Senechal's primary care physician,
Dr. Scott Diehl, submitted an Attending Physician Statement
in which he noted that Senechal's "primary
diagnosis" was "neck pain due to ruptured
disc." R. at D00436. Dr. Diehl further opined that
Senechal was not currently able to work at all, or do
"any physical activity except walk, " but that her
prognosis was "fair - good, " and that he expected
"fundamental changes" in her condition in
approximately five to six months. Id. at D00437.
Finally, he indicated that he did not know when Senechal
would be able to "return to full duty."
November 12, 2010, Dr. Diehl completed an Attending Physician
Recertification Statement for Aetna. R. at D00466. He noted
that nothing had changed with respect to Senechal's
condition, and that she was scheduled to have surgery on
November 22, 2010. Id. He reiterated that Senechal
was unable to work, and he estimated that she would continue
to be incapacitated through February of 2011. Id. at
anterior cervical discectomy and fusion surgery was performed
by neurosurgeon Dr. Brian Kwon. The Aetna Disability Claims
Administrator assigned to Senechal's claim spoke with Dr.
Kwon on November 17, 2010 and confirmed Senechal's
surgery. Aetna then contacted Senechal to inform her that her
claim for short term disability benefits was approved through
November 28, 2010. Id. at D01418.
November 29, 2010, after confirming with Dr. Kwon's
office that Senechal's surgery had occurred, Aetna's
claims administrator informed Senechal that approval of her
claim for short term disability benefits had been extended
through January 3, 2011. The administrator further informed
Senechal that her short term disability claim would expire on
January 4, 2011, at which point Aetna would consider
transitioning her claim to one for long term disability
January 2011, Aetna transitioned Senechal's claim into
one for long term disability benefits, and assigned the claim
to Disability Benefits Manager Bibi Ally. By letter dated
January 5, 2011, Aetna informed Senechal that she met the
definition of disability set forth in the Plan, and that,
pursuant to the Plan, Aetna would be periodically
re-evaluating her eligibility for benefits. Id. at
D01734. The letter also informed Senechal that, if she was
still disabled from her own occupation and eligible for
benefits in January 2013, the Plan required that she
"meet a more strict definition of disability, "
explaining that after 24 months, the Plan would only pay
benefits "if you are not able to work at any reasonable
occupation" because of disease or injury. Id.
11, 2011, Dr. Kwon completed an Attending Physician Statement
for Aetna. R. at D003084. He reported that, as of May 22, 2011,
Senechal was capable of "medium work activity, "
defined as "[e]xerting 20-50 pounds of force
occasionally, and/or 10-25 pounds of force frequently, and/or
greater than negligible up to 10 pounds of force constantly,
" and could work for six to eight hours a day, four to
five days a week. Id. at D003085. The only
restriction Dr. Kwon noted was that Senechal should limit
reaching overhead. Id.
that time, Aetna conducted a follow-up review of
Senechal's claim. The clinical assessment noted that Dr.
Kwon had "released this claimant to medium work with
limitations in overhead reach, " and recommended
following-up with Dr. Kwon to determine whether
Senechal's capacity to perform "medium work with
potential for some limited hours (6-8 hours a day[, ] 4-5
days per week)" would allow her to perform light or
sedentary work activities for a full 12-hour day.
Id. at D001498. Aetna's clinical assessment
further recommended contacting Senechal to discuss her
"work release, her status and treatment plan."
Aetna contacted Senechal, she stated that she was no longer
under the care of Dr. Kwon or Dr. Diehl. Id. at
D001500. She informed Aetna that her new primary care
provider was Dr. Katherine Shanahan, and that she was also
seeing Dr. William Goodman, a pulmonologist, and Dr. Steven
Grandgeorge, who specialized in allergy and immunology.
August 18, 2011, Dr. Shanahan completed an Attending
Physician Statement for Aetna. R. at D00957. Dr. Shanahan
described her primary diagnosis as "severe asthma,
" with a secondary diagnosis of "spinal cord tumor,
" and other diagnosis of "neck and back pain."
Id. She listed the medications taken by Senechal to
treat those conditions, and noted an "impairment from
medication effects" as "sedation."
Id. Listing Senechal's symptoms as
"back/neck pain [and] severe shortness of breath, "
Dr. Shanahan concluded that Senechal had "no ability to
work, " and that she was "incapable of minimal
activity." R. at D00958.
October 31, 2011, based on Aetna's review of
Senechal's medical information on file, Aetna determined:
[Senechal] continues [with] severe wheezing and [shortness of
breath], and symptoms of emphysema and [COPD]. Recent
hospitalization [at the] end of July for [shortness of
breath] and need for IV medications to stabilize lung
functions and back pain.
[Senechal] remains impaired from ability to sit/type or
perform at even sedentary capacity due to continue[d] upper
ext. pain and [shortness of breath], easily fatigued [with]
any activity/[walking]/light lifting [with] ongoing neck and
back pain. Having MRIs every few months to assess mass on
thoracic spine - may be shadow - however unclear as
[employee] cannot have dye . . . severe reaction when last
Also requiring recent hosp[italization] at end of July -
remains [with shortness of breath], severe lung [deficits, ]
[oxygen saturation on room oxygen] drops to 80s at times; Due
to these multiple issues with [shortness of breath] and pain,
and almost constant cough - causing [fractured] ribs [-] and
steroid use[, ] unable to perform at sedentary capacity for
next 3 months.
D01547 - 48. Based on this assessment, Aetna continued to
approve Senechal's claim for benefits. Joint Statement of
Material Facts ¶ 38.
is Approved for Social Security Benefits
apparently employed the services of an agency called AllSup
to assist with her application for Social Security Disability
Insurance ("SSDI") benefits. Beginning in January
of 2011, Aetna tracked AllSup's efforts to assist
Senechal with her application. R. at D001475- D001476. Aetna
continued to monitor the status of Senechal's
application. See id. at D01511, D01519, D01522 -
D01529, D01552, D01558.
Social Security Administration ("SSA") determined
that Senechal's "maximum sustained work
capacity" was "sedentary, " and that she was
disabled for purposes of her social security claim as of the
date of her 50th birthday, February 1, 2011.
Accordingly, she met the medical requirements necessary to
qualify for disability benefits, and was deemed eligible for
SSDI benefits as of February 1, 2011.
communicated that determination to Aetna on June 4, 2012.
Id. at D01566 - D01568. Aetna informed Senechal, by
letter dated June 14, 2012, that, because she had been
awarded Social Security benefits, her disability benefit
payments from Aetna would be offset by those Social Security
payments. Id. at D01779. And, because the SSA had
awarded Senechal retroactive benefits, she would have to
reimburse Aetna for its overpayment of benefits during that
retroactive period. Id. Aetna's payments to
Senechal were then reduced until Aetna recovered the
overpayment in full. Id. at D01575.
2013 - "Any Reasonable Occupation" Test of
effective date of Senechal's long term disability benefit
eligibility was January 3, 2011. So, as of January 2, 2013,
the Plan's more stringent definition of
"disability" became applicable, and Senechal's
eligibility for benefits continued only if she was unable to
work at "any reasonable occupation." Aetna claim
administrator Shirley Heera spoke with Senechal by phone on
August 13, 2012. R. at D01577. Heera pointed out that the
Plan's definition of "disability" would be
changing in January 2013, so Aetna would again be requesting
Senechal's medical records. Id. at D01584.
Senechal disclosed that she was currently seeing Dr.
Grandgeorge for her allergies, and Dr. Goodman and Dr.
Christine Oliver at Massachusetts General Hospital for
pulmonology issues, but was no longer seeing Dr. Moe Zan for
rheumatology, or Dr. Terry Ball for orthopedics, because both
had concluded that they were unable to help alleviate her
symptoms. Id. at D01580 - D01582. Senechal further
disclosed that Dr. Shanahan had left the area, and her
primary care physician was now Dr. Keith Stahl. Id.
and Senechal also spoke about Senechal's daily
activities. Senechal reported that her activities were
severely limited by her conditions, because she was "not
able to go anywhere" or "be around people" due
to her chemical sensitivities. R. at D01580, D01582. Heera
asked Senechal what she did for entertainment or fun;
Senechal responded that she would use her computer a
"little bit, " watch movies, and "if she was
having a really good day, " ride on a motorcycle.
Id. at D01582.
November 18, 2012, Heera again spoke with Senechal by phone.
Heera noted that Senechal was coughing frequently during the
call. During the call, Heera asked Senechal whether she could
work at a home-based job. R. at D01595. Senechal responded
that she could not "due to medication and . . . [and]
her constant cough." Id.
by letter dated December 31, 2012, again informed Senechal
that the Plan's definition of disability would change
effective January 3, 2013. R. at D01791. Aetna noted that it
would be unable to complete its determination of
Senechal's continued eligibility for long term disability
benefits under the changed definition by January 3, 2013, and
so her monthly benefits would continue until Aetna concluded
its investigation. Finally, Aetna asked Senechal to provide
Aetna with any additional medical or vocational information
that she wished Aetna to consider in making the
Receipt of Senechal's Medical Records
received Senechal's medical records from Dr. Stahl, Dr.
Goodman, Dr. Grandgeorge, Dr. Oliver, Dr. Ball and Dr. Zan.
Dr. Stahl and Dr. Goodman also provided Aetna with Attending
Physician Statements. A brief summary of those records and
statement is set out below.
Stahl's Attending Physician Statement was completed on
November 26, 2012. He noted that Senechal suffered from
"recurrent bouts of dyspnea/wheezing, " and had
"no ability to work." R. at D01016. However, he
also indicated that Senechal could work two hours a day,
three days a week. Id.
medical records from Dr. Zan, a rheumatologist, disclosed
that she visited him due to her "sudden onset
polyarthritis." R. at D01283. Dr. Zan noted that, during
a February 2012 appointment, Senechal looked "very
uncomfortable because of the generalized joint pain, "
and that his exam "shows diffuse tenderness over almost
every joint." Id. His notes of an August 2011
visit also indicate that Senechal "looks very
uncomfortable" due to her pain. Id. at D01327.
received Dr. Grandgeorge's medical records on October 23,
2012. His records note Senechal's "complex history,
" as well as the health problems she encountered when
attempting to taper her Prednisone dose. R. at D00422,
D00425. Dr. Grandgeorge "presumed asthma, " but
Senechal's "[w]ork up showed low-normal [Pulmonary
Function Tests], negative allergy tests, [and] normal
immunoglobulins." Id. at D00422.
November 1, 2012, Aetna received Senechal's medical
records from Dr. Oliver at Massachusetts General Hospital.
Dr. Oliver's records from Senechal's June 22, 2012
appointment note Senechal's asthma, indicating concerns
regarding "steroid dependence and frequency of severe
attacks;" the arthralgias and joint swelling Senechal
experienced upon steroid withdrawal; and Senechal's
chemical sensitivities. R. at D00628.
Ball, an orthopedist, indicated to Aetna that he only saw
Senechal once, on November 28, 2011. R. at D00637. His notes
from that visit show that Senechal complained of pain
"from her neck to her tailbone that is present and
constant, " but that her postoperative MRI shows
"an acceptable decompression with no significant canal
stenosis. Plain x-rays show good graft and instrument
position." Id. at D00638-39. Dr. Ball stated
that he did "not see any surgical indications here,
" and that the "best option" for Senechal
"would be consideration of [a] functional
restoration" program. Id. at D00639.
Goodman's Treatment Notes and Attending Physician
Dr. Goodman began treating Senechal in July 2011 for
"evaluation and management of dyspnea since [February
2011] MRI dye infusion." R. at D01334. In addition to
Senechal's dyspnea, Dr. Goodman also noted that she
suffered from joint pain and swelling. Id. at
D01335. His treatment notes from Senechal's many
subsequent outpatient appointments indicate that Senechal
suffers from "[s]evere intermittent [shortness of
breath]/asthma/possible chemical hypersensitivity, "
"has highly reactive airways and chemical sensitivities,
" and an "allergic process superimposed on some
underlying COPD with bronchial hyperactivity."
Id. at D01303, D01264, D01270.
Senechal's appointments, Dr. Goodman frequently noted
that she presented with wheezing. However, he also frequently
noted that Senechal exhibited:
• No obvious use of accessory muscles of respiration.
• Hyperinflation is mild (or not evident).
• Bilateral breath sounds are present and symmetric.
• Significant crackles are not appreciated.
• A prolonged expiratory phase is mild (or not present).
D01241 (10/17/2012); D01248 (7/20/2012); D01255 (5/24/2012);
D01262 (4/10/2012); D01269 (3/16/2012); D01289 (12/12/2011);
D01301 (11/19/2011); D01312 (10/3/2011); D01323 (8/30/2011).
Dr. Goodman's notes also frequently reference
Senechal's efforts to avoid exposure to the chemicals and
allergens that exacerbated her condition and symptoms, and
indicate that these efforts resulted in an improvement in her
symptoms. See, e.g., R. at D01242 (October
17, 2012: "Although she is still troubled, she knows how
to more effectively avoid triggers and has been doing better
in general and more active and independent"), D01250
(July 24, 2012: "Over the past weeks[, ] her improvement
might be due to the fact that construction in her house is
settling down, she is more aware of potential triggers in her
environment, she is more able to avoid known triggers in the
environment"); D10251 (May 24, 2012: "[H]as been
successful in trying to avoid contact with all chemicals and
perfumes. The patient tells me that overall symptoms have
been improved since last visit.").
Goodman's notes reference the intermittent nature of
Senechal's symptoms. For example, on October 31, 2011, he
recounts a conversation with Dr. Aleena Benerji, a specialist
from Massachusetts General Hospital who was also treating
I discussed her case with Dr. Benerji by telephone - I called
her. She and I reviewed [Senechal's] case and her
laboratory investigations. At this point, [Dr. Benerji]
cannot put together her symptoms and syndromes in one clear
diagnosis. . . . She and I reviewed [Senechal's] normal
IgE, her negative Hsps. [Dr. Benerji] also commented on the
intermittent nature of [Senechal's] symptoms[, which]
makes many chronic and persistent illnesses unlikely. This
goes along with the fact that by the end of my visit today
although she started out distressed coughing and dyspneic,
she was more comfortable, smiling and speaking loudly and
D01308. And, according to Dr. Goodman's treatment notes,
Senechal more often than not reported to him that her
breathing problems did not usually interfere with her
activities or selection of activities. See,
e.g., id. at D01236; D01250; D01258;
D01297; D01314; D01319; D01328; D01335.
January 3, 2013 Clinical Assessment
review of Senechal's medical records, Aetna's file
reflects the following clinical ...