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Senechal v. Aetna Life Insurance Co.

United States District Court, D. New Hampshire

June 29, 2016

Elizabeth Senechal, Plaintiff
v.
Aetna Life Insurance Company, Defendant Opinion No. 2016 DNH 109

          ORDER

          Steven J. McAuliffe Judge

         Plaintiff, 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 this order.

         FACTUAL BACKGROUND

         The 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 the case.

         Elizabeth 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.

         ADP 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 provides:

[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.

         R. at D00029. As an ADP employee, Senechal participated as a beneficiary in the Long Term Disability Plan (the "Plan"), which was administered and underwritten by Aetna.

         The Plan

         To qualify for long term disability benefits, the Plan required a covered employee to meet the "test of disability, " defined by the Policy as follows:

         From 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 condition; and
• Your earnings are 80% or less of your adjusted predisability earnings.

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 condition.

         R. at 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).

         The Plan describes circumstances that trigger termination of an employee's eligibility for long term disability benefits, including:

• 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).

         Senechal's Medical Conditions

         In 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.

         Senechal 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.[1]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.

         Additionally, 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.

         Senechal Applies for Disability Benefits

         On 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." Id.

         On 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 D00467.

         Senechal's 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.

         On 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 benefits.

         In 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. at D01734.

         On July 11, 2011, Dr. Kwon completed an Attending Physician Statement for Aetna. R. at D003084.[2] 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.

         About 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." Id.

         When 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. Id.

         On 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.

         On 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 given.
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.

         R. at D01547 - 48. Based on this assessment, Aetna continued to approve Senechal's claim for benefits. Joint Statement of Material Facts ¶ 38.

         Senechal is Approved for Social Security Benefits

         Senechal 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.

         The 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.

         AllSup 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.

         January 2013 - "Any Reasonable Occupation" Test of Disability

         The 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. at D01582.

         Heera 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.

         On 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.

         Aetna, 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 determination.

         Aetna's Receipt of Senechal's Medical Records

         Aetna 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.

         Dr. 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.

         Senechal's 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.

         Aetna 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.

         On 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.

         Dr. 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.

         Dr. Goodman's Treatment Notes and Attending Physician Statement

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.

         At 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).

         R. at 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.").

         Dr. 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 Senechal, writing:

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 clearly.

         R. at 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.[3] See, e.g., id. at D01236; D01250; D01258; D01297; D01314; D01319; D01328; D01335.

         Aetna's January 3, 2013 Clinical Assessment

         Following review of Senechal's medical records, Aetna's file reflects the following clinical ...


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