Mason v. Federal Express Corporation et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Maurice K. Mason, )
)
Plaintiff, ) 3:14-cv-0107 JWS
)
vs. ) ORDER AND OPINION
)
Federal Express Corporation, et al., ) [Re: Motions at dockets 55 and 57]
)
)
Defendants. )
)
I. MOTIONS PRESENTED
At docket 55 plaintiff Maurice K. Mason (“Mason”) moves for judgment after a
trial on the record pursuant to Federal Rule of Civil Procedure (“Rule”) 52 or,
alternatively, summary judgment pursuant to Rule 56. Defendants Federal Express
Corporation, FedEx Trade Networks Transport & Brokerage, Inc., Aetna Life Insurance
Company, Federal Express Corporation Short Term Disability Plan, and Federal
Express Corporation Long Term Disability Plan (collectively, “Defendants”) oppose
Mason’s motion at docket 58 and cross-move for summary judgment at docket 57.
These two filings are supported by a memorandum at docket 59. Mason replies in
support of his motion at docket 66 and opposes Defendants’ cross-motion at docket 67.
Mason’s memorandum in support of these two filings is at docket 64, and his
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declaration is at docket 65. At docket 73 Def endants reply in support of their cross-
motion.
Oral argument was not requested and would not assist the court.
II. BACKGROUND
While he was employed by defendant FedEx Trade Networks Transport &
Brokerage, Inc. (“FedEx Trade”) Mason was diagnosed with a rare autoimmune disease
known as Stiff Person Syndrome (“SPS”). SPS is “manifested clinically by the
continuous isometric contraction of many of the somatic muscles; contractions are
usually forceful and painful and most frequently involve the trunk musculature, although
limb muscles may be involved.”1 After defendant Aetna Life Insurance Company
(“Aetna”) denied his claim for short-term disability benefits, he filed suit under the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”).2 His
complaint alleges: (1) wrongful denial of his claim for short-term disability benefits;
(2) wrongful refusal to consider his claim for long-term disability benefits; (3) breach of
fiduciary duty; and (4) failure to provide requested plan documents. Although the
parties style their cross-motions as summary judgment motions, they would be more
accurately described as partial summary judgment motions because they only address
the merits of the first of Mason’s four causes of action: whether Aetna abused its
discretion in denying Mason’s short-term disability claim.
Mason argues that Aetna abused its discretion by ignoring objective medical
evidence in the record that shows that his SPS and the side effects of his medications
prevent him from performing the duties of his former job. The following is a summary of
the evidence in the record.
1STEDMAN’S MEDICAL DICTIONARY (2014). See also doc. 32-2 at 9.
229 U.S.C. §§ 1001-1461.
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A. Initial Treatment from Medical Park Family Care
Beginning in early 2008 Mason repeatedly complained about muscle spasms to
his primary care physicians at Medical Park Family Care,3 but the physicians were
unable to determine their cause.4 For example, Mason saw Dr. James R. Lord on
May 8, 2009, complaining of “continuing very unusual symptoms,” including “various
types of body spasms in the hands, legs, feet”; “some cramping”; swollen joints; and
blurred vision.5 Dr. Lord stated that Mason’s symptoms were “very difficult to explain.”6
B. SPS Diagnosis from the VA
In February 2010 Mason saw neurologist Gregg Meekins, M.D. with the VA
Medical Center. Dr. Meekins noted Mason’s lengthy history “of severe spasms
affecting hands, feet, torso, etc.,” and the multiple medications that Mason was taking
“without benefit or intolerable side effects of excessive sedation.”7 Dr. Meekins ordered
laboratory testing, which “came back positive for very high anti-glutamic acid
3Doc. 32-2 at 122. See also Mason’s November 26, 2008 chart note, id. at 126 (“This
44-year-old male is having unusual symptoms that continue, which include this type of cramping
sensation of his extremities associated with some tremors. . . . . He is noting increased
intensity and frequency recently.”); his April 21, 2009 chart note, id. at 127 (“[H]as had an
increase in his muscle spasm. . . . . Primarily they are in the hands, forearms, lower legs and
feet.”); his October 15, 2009 notes, id. at 130 (“This 45-year-old male presents with a long
history of cramping in the extremities and neck as well. It has been going on for greater than a
year.”); his November 11, 2009 notes, id. at 132 (“45-year-old male presents for a constant
cramping pain in his neck for the past 3-4 days. . . . . Pain intermittently down both arms,
tingling or burning and somewhat painful, associated w/ hand and finger spasms or locking
up.”); his February 4, 2010 notes, id. at 136 (“Chief Complaint: Cramping in stomach, arms, and
legs that will not stop, and along with headaches (since Monday).”); his February 12, 2010
notes, id. at 138; and his February 15, 2010 notes, id. at 140 (“This patient returns with
continued spasms of the extremities and cramping with headaches of concern it may have been
related to anxiety a full work up has been done with no etiology determined at this time.”).
4See, e.g., Masons’s November 26, 2008 chart note, id. at 126 (“Extremity cramping.
tremors, and weakness. The etiology Is not clear.”); and his February 4, 2010 note, id. at 137
(“Unclear etiology of patent’s symptoms . . . .”).
5Id. at 129.
6Id.
7Id. at 57.
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decarboxylase [“GAD”] 65 antibody level consistent with the diagnosis of stiff-person’s
syndrome.”8 After diagnosing Mason with SPS, he prescribed baclofen to treat Mason’s
condition.9 Although a subsequent laboratory test in July 2010 came back normal,10
Mason’s blood was retested in December 2010 and the results were positive for SPS
(“although not as high a level” as the February result).11 Defendants do not contest the
validity of Mason’s SPS diagnosis.
C. Consult with Neurologist Wayne Downs, M.D.
Mason met with neurologist Wayne Downs, M.D. in April 2010. Mason described
his history of cramping, which he said had gotten gradually worse.12 He also explained
that he was being treated with several “potentially sedating drugs” which caused a “lack
of focus and short-term memory loss.”13 Mason told Dr. Downs that he was not able to
perform his job and in “the last few days he [had] been found asleep at his desk on two
occasions.”14
Dr. Downs assessed Mason as having “anti-GAD65 stiff person syndrome.” As
to Mason’s lack of focus and memory loss, Dr. Downs stated that Mason’s
encephalopathy15 was “worse on his current medications” and suspected that this was
because of the baclofen he was taking. At the time Mason was taking 60 mg of
8Id.
9Id.
10Id. at 101.
11Id. at 108.
12Id. at 146.
13Id.
14Id.
15Encephalopathy is a disorder of the brain. STEDMAN’S MEDICAL DICTIONARY (2014).
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baclofen daily.16 Dr. Downs wrote that “[w]ere l treating him I would taper the baclofen
off relatively rapidly and then start pushing the Valium.”17 “If we can get him off his
sedating medications and he is still having an encephalopathic problem,” Dr. Downs
wrote, “then I think a neuropsych[ological] test would be indicated to quantitate [sic] this
as this may be a source of employment difficulties.”18
D. Follow-Up Treatment
Following his consult with Dr. Downs, Mason returned to Medical Park Family
Care complaining about the side effects of his medications. On May 7, 2010 Dr. Lord
ordered Mason to taper off baclofen but stated that he would still “likely need high
doses of muscle relaxants for the muscle cramps and stiffness.”19
On July 8, 2010 Mason saw Dr. Lord again, complaining that his SPS was
worsening and that the tapering of the dosage of his muscle relaxants was not
helping.20 The notes from Dr. Lord’s physical examination state that Mason was in
“moderate pain/distress” and “[v]isibly uncomfortable, some palpable spasms on chest
wall, discomfort with walking and changing positions.”21
On July 15, 2010, Mason was admitted to the emergency department of
Providence Alaska Medical Center, complaining of cramps and muscle spasms with
pain that he described as a 10 on a scale of 0 to 10.22 The emergency department
physician noted that Mason did not appear to be in distress or discom fort despite his
16Doc. 32-2 at 146.
17Id. at 148.
18Id. at 149.
19Id. at 153.
20Id. at 163.
21Id.
22Id. at 52.
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stated pain level, and that he was alert and oriented. Mason was given morphine and
Ativan for his pain and instructed to follow up with his primary care physician.23
The next morning Mason met with Dr. Lord, who noted in his physical exam that
Mason was suffering from “moderate pain/distress.”24 Later that day Mason was again
admitted to the emergency room complaining of pain.25 The emergency department
physician noted that Mason’s inability to control his SPS-related pain was “unfortunately
par for this unfortunate malady,” which he described as “ultimately . . . very difficult to
treat.”26
In the following months Mason sought medical treatment repeatedly for his SPS,
including the following visits:
∙ Dr. Lord’s July 27, 2010 physical exam notes state that Mason was
suffering from “mild pain/distress” and had a “depressed affect.”27
Dr. Lord concluded that Mason’s SPS had deteriorated. 28
∙ The next day Mason met with Dr. Meekins, complaining of painful spasms
and stiffness in his trunk and extremities. Dr. Meekins described Mason’s
SPS as “progressive.”29
23Id. at 53.
24Id. at 164.
25Id. at 55.
26Id.
27Id. at 168.
28Id.
29Id. at 61.
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∙ On August 16, 2010, Dr. Lord again examined Mason, assessed Mason’s
SPS had deteriorated, and noted that he was suffering from “mild
pain/distress” and “[c]ontinued diffuse muscle spasms.”30
∙ Dr. Lord examined Mason again on August 25, 2010, and again noted that
Mason was suffering from “mild pain/distress” and had a “depressed
affect.”31
∙ On September 22, 2010, Mason was referred to VA internist Madeleine M.
Grant, M.D., who addressed Mason’s reports that his medicine was
causing him to be too sedated to drive or work.32 Dr. Grant listed Mason’s
treatment goal as “find[ing] medication that worked and did not affect him
cognitively.”33 She recommended tapering Mason’s baclofen usage and
gradually increasing diazepam.
∙ In Dr. Lord’s notes to Mason’s September 29, 2010 visit, Dr. Lord states
that he discussed Mason’s SPS with the VA and they agreed to “maximize
the dosing of Valium to try and treat his spasms” and “[s]lowly titrate down
the baclofen.”34
∙ On October 6, 2010, Mason complained to Dr. Lord that his body cramps
had “worsened especially the feet and arms since tapering off of the
baclofen” but he noticed less sedation.35
30Id. at 173.
31Id. at 175.
32Id. at 68.
33Id. at 69.
34Id. at 181.
35Id. at 183.
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∙ On October 28, 2010, Dr. Lord again noted that Mason’s SPS had
deteriorated, he was suffering “moderate pain/distress,” and had a
“depressed affect.”36
∙ On November 15, 2010, Mason complained to Dr. Lord about “pain and
discomfort and depression” from SPS. Dr. Lord’s physical exam noted
that Mason was suffering from “moderate pain/distress” and had a
“depressed affect.”37
∙ On December 23, 2010, Mason told another Family Park Medical Care
physician, Jeffrey Kim, M.D., that he was doing “okay” on Valium but it
made him “very sleepy and very poor functioning.”38
∙ On January 9, 2011, Mason was admitted to the emergency department
at the hospital complaining of severe abdominal pain, which he graded as
a 9 on a scale of 0 to 10.39 The emergency department physician noted
that Mason alleviated his pain by taking his medication at home, but within
about 20 minutes of presenting himself at the hospital Mason had already
fallen asleep.40
E. Neuropsychological Exam
Because Mason was complaining of memory decline, Dr. Meekins referred
Mason to neuropsychologist Paul D. Dukarm, Ph.D. for testing in September 2010. In
his summary of his findings Dr. Dukarm states that Mason was “exhibiting variable
neurocognitive performance deficits in the areas of executive functioning. Specifically,
he [was] demonstrating impaired performance in the area of visuospatial organization
36Id. at 188.
37Id. at 190.
38Id. at 192.
39Id. at 48.
40Id. at 49.
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and planning during problem solving and impaired response flexibility under changing
conditions.”41 In addition, Dr. Dukarm found that Mason was “borderline deficient” with
regard to “[d]eductive logic as it relates to attribute identification and concept formation,”
and he showed “deficiencies for learning and retaining uncontexualized verbal
information, such as a word list.”42 Dr. Dukarm noted, however, that Mason’s
“recognition [was] intact as well as his learning efficiency and retention of other forms of
verbal information (prose) and non-verbal information.”43 And although Mason’s “[b]asic
auditory attention and working memory” were “low average,” he was in the average
range with regard to “visual working memory,” “verbal fluency under time pressure,
sequencing and alternating attention under time pressure, and inhibiting automatic
responses under time pressure.”44
Dr. Dukarm concluded that the findings of his exam were “compatible with a
diagnosis of Cognitive Disorder, NOS.”45 “Etiology of neurocognitive deficits is unclear
and likely multifactorial. . . . . The most likely contributing factors to this patient’s
performance deficits include medication effects, pain, and sleep disturbance. Other
contributing factors include the autoimmune disease of which he is diagnosed, but the
cognitive effects are unclear as to the nature and source of the impact from this
condition.”46
41Id. at 77.
42Id.
43Id.
44Id.
45Id.
46Id. at 77-78.
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F. Psychotherapy
On September 1, 2010, Mason was seen by Camilla A. Madden, Ph.D., a
psychologist at the VA, who diagnosed Mason with severe depression related to his
struggles at work and with his family because of the side effects of his medications and
the limitations of his disorder.47 Mason continued to see Dr. Madden regularly for
treatment of his depression.48
G. Mason Applies For Short-Term Disability Benefits
Mason applied for short-term disability benefits in December 2010, stating that
he was no longer able to work due to his SPS and described his symptoms as follows:
“Muscle spasms all over, cramps all over, dystonia49 in the hands and feet, chronic
fatigue, unable to concentrate and chronic headache.” 50 In order for employees to
qualify for short-term disability benefits under the Short Term Disability Plan (“the Plan”)
administered by defendant Federal Express Corporation (“FedEx”), they must show that
they suffer from an “occupational disability,” which the Plan defines as “the inability of a
Covered Employee, because of a medically-determinable physical impairment or
Mental Impairment, to perform the duties of his regular occupation.”51
47Id. at 64-65.
48See, e.g., id. at 66-67; 71-72; 79-82; 83-84; 88-89, 90-91; 94-85; 97-98.
49Dystonia is defined as “[a] syndrome of abnormal muscle contraction that produces
repetitive involuntary twisting movements and abnormal posturing of the neck, trunk, face, and
extremities.” STEDMAN’S MEDICAL DICTIONARY (2014).
50Doc. 32-3 at 32-33.
51See the Plan § 1.1(s), doc. 32-6 at 50. See also Doc. 59 at 4.
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H. Mason’s Supervisor States that Mason is Unable to Work
Mason worked as a manger for FedEx Trade who oversaw a group of 26
employees.52 His former supervisor, Linda Combs (“Combs”), wrote an email stating
that Mason “would suffer from severe muscle cramping” at work “and his limbs would
‘lock up.’”53 For example, Combs reported that she had observed Mason not being able
to get up from a meeting table “because his legs locked up” and “his hands cramp up
and lock where he could not open his hand.”54 Combs also stated that she saw Mason
“fall to the ground with leg spasms at an employee picnic.”55
Combs stated that Mason started “really declining in the fall of 2009,” when he
had “spasms much more frequently and more severely.”56 Mason started taking
medication but it was “very sedating,” causing him to take most of March and some of
April 2010 off from work so that he could “try[] to cope on these medications.”57 When
he returned to work, he “struggled with staying awake and alert through an 8 hour work
day,” had a bad limp, and experienced difficulty walking around the two-floor office.58
Combs reported that Mason had “trouble focusing and remembering things,” and “many
times” on the job “was falling asleep, slurring his words and making very little sense.”59
Combs stated that she “would send him things that he didn’t ever remember seeing”
52Doc. 32-2 at 235.
53Id. at 236.
54Id.
55Id.
56Id.
57Id. at 237.
58Id.
59Id.
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and that he “could not keep up with his deadlines.”60 “I finally told him that this was
getting way out of control,” Combs wrote. “We wouldn’t allow any other employee to
come in and pass out at their desk. I felt like I was dealing with a situation that
presented the company with a grave liability.”61
Combs’ report is consistent with a December 13, 2010 entry in Aetna’s claim
records which states that Mason’s “HR Advisor” called Aetna because she wanted to
help Mason with his claim. The advisor stated that she would “make [Mason]
understand” what Aetna needed and would “ask [Mason’s] girlfriend to help him,
because he is in a lot of pain and many times he is [on] pain medicine and cannot
understand what he is being asked.”62
I. Mason’s Treating Physicians Opine That He Is Unable to Work
In June 2010 Dr. Lord filled out a FedEx form indicating that Mason was unable
to perform any of his job functions due to his SPS, and his condition was permanent.63
Dr. Lord elaborated on his opinion in a July 29, 2010 letter, in which he stated that
Mason’s medical concerns—including “uncontrollable muscle spasms throughout the
body, irritable bowel-like symptoms, generalized anxiety and depression, restless legs,
circulatory conditions, hypertension, spontaneous tendon ruptures and sleep
disorder”—can be attributed to his “definitive diagnosis” of SPS.64 Dr. Lord wrote that
Mason’s “symptoms have progressively worsened and his symptoms are currently
60Id.
61Id.
62Doc. 32-3 at 45.
63Doc. 32-2 at 159-62.
64Id. at 172.
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poorly controlled. He is medically disabled at this time and would benefit from
evaluation by a leading expert on stiff person syndrome.”65
The physician responsible for Mason’s primary care shifted from Dr. Lord to
Dr. Kim.66 Dr. Kim wrote a letter on December 23, 2010, stating that Mason’s SPS
diagnosis had been confirmed by two separate neurologists and rendered him
permanently disabled.67 Dr. Kim also completed an “Attending Physician Statement” on
January 21, 2011, that states Mason is unable to work in any capacity due to his
disease and the effects of his medications and lists the objective data upon which this
opinion relies, including physical exams that reveal spasms in Mason’s chest and
abdomen and cramps in his extremities, and various diagnostic tests that were
performed on Mason that confirm his SPS diagnosis.68 Dr. Kim expanded on this
opinion in the following two notes in Mason’s file: (1) on January 21, 2011, Dr. Kim
wrote that “[f]or reasons related to medication side effects as well as symptoms
associated with his condition, [Mason] is unable to function adequately at work and
should certainly be considered disabled;”69 and (2) on January 26, 2011, Dr. Kim wrote
that Mason was “currently, and for the foreseeable future, significantly disabled and
unable to function at any effective level in a work capacity.”70
J. Aetna Denies Mason’s Claim
Aetna denied Mason’s claim on March 28, 2011. In the denial notice Aetna
Nurse Consultant Patricia Karns (“Karns”) writes that she reviewed Mason’s file and
65Id.
66Doc. 55 at 11.
67Doc. 32-2 at 194.
68Id. at 198.
69Id. at 196.
70Id. at 199.
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presented his claim to “an independent peer physicians [sic] specializing in internal
medicine, neurology, and neuropsychology.” She informs Mason that Aetna
determined that “the clinical data received and reviewed fails to support a functional
impairment from [Mason’s] sedentary occupation.”71
Aetna did find that some unspecified “data indicates that [Mason was] unable to
work related to side effects of [his] medications.”72 “However,” Aetna continued, “the
office visit notes from Dr. Kim and Dr. Grant do not document any objective findings to
indicate a functional impairment such as significant sleepiness or disorientation during
office visits. The documentation also noted that you are alert and oriented.”73 Aetna
also concluded that there was “no documentation of any cognitive impairment”74 despite
the apparent contrary conclusion of Dr. Dukarm, because Dr. Dukarm “did not record
any significant sedation during the interview or testing.”75 Aetna also discounted the
results of Dr. Dukarm’s test that supported a disability finding, stating that “there was no
consistency or validity testing results.”76
Aetna’s notice states that Mason needed to subm it, among other things,
“medical documentation that clearly states the significant objective findings that
substantiate a disability.”77 Aetna defined “significant objective findings” as “signs,
which are noted on a test or medical exam and are considered significant anatomical,
physiological, or psychological abnormalities that can be observed by a practitioner
71Id. at 4.
72Id.
73Id. (emphasis added).
74Id.
75Id. (emphasis added).
76Id.
77Id. at 5.
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apart from your description of your symptoms.” Aetna provided examples of such data:
(1) “[p]hysician exam reports, office notices, progress notes;” (2) “[o]ther Healthcare
provider reports;” and (3) “[d]iagnositic test results, i.e. lab tests, radiographic tests.”78
Aetna informed Mason in bold print that “[p]ain, without significant objective findings, is
not proof of disability.”79
Mason appealed on June 24, 2011.80
K. Mason Submitted Additional Information
Between the date of Aetna’s denial and the date Mason filed his appeal, Mason
was admitted to the emergency department three times related to SPS spasms: on
April 27,81 May 11,82 and May 28, 2011.83 Mason submitted to Aetna the medical
records related to these admissions.84
On May 23, 2011, the Social Security Administration determined that Mason was
disabled under the rules of its disability insurance program (“SSDI”).85 The SSDI
program “provides benefits to a person with a disability so severe that she is ‘unable to
do [her] previous work’ and ‘cannot . . . engage in any other kind of substantial gainful
78Id.
79Id. at 4.
80Doc. 32-3 at 19.
81Doc. 32-2 at 32-39 (Mason was suffering from “still present,” severe, “whole body
spasms” and listed his pain level at 10 on a scale of 0 to 10).
82Id. at 22-31 (Mason was taken to the emergency room in an ambulance complaining of
whole body muscle spasms and listed his pain level at 10).
83Id. at 15-21 (Mason had fallen after suffering a spasm in his right leg, and was
diagnosed with a left ankle sprain and right quadriceps strain).
84Id. at 11.
85Id. at 12.
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work which exists in the national economy.”86 Mason submitted to Aetna his Notice of
Award of SSDI benefits.87
Mason also submitted to Aetna letters from three of his treating doctors:
Dr. Grant, Dr. Downs, and Dr. Madden. Dr. Grant wrote a letter dated March 3, 2011,
stating that it was her opinion that Mason was unable to work on account of his
disability “both due to severe discomfort from his stiff man syndrome, and also from
side effects of the medication, which affects him cognitively.”88
Dr. Downs wrote a letter dated June 10, 2011, stating that Mason’s “symptoms
are consistent with [SPS] and blood work has been positive for the relevant antibodies.
The diagnosis is not in question.”89 Dr. Downs provided Aetna with the following
information about SPS:
The disease is extremely rare and poorly understood. There seem to be
several etiologies, but the final result is significant loss of inhibition of
spinal motor neurons which results in extreme excessive firing of these
motor neurons and contraction of the innervated muscles. This is similar
to but very much more severe than what is seen in spasticity after a
stroke, and the spasms can in fact be severe enough to break bones.
Symptoms can sometimes be controlled by medications, but the
medications are extremely sedating, and we have as of yet been unable
to give [Mason] any significant relief.90
In addition, Dr. Downs provided Aetna with a copy of the section from Goetz Textbook
of Clinical Neurolgy that discusses SPS and directed its attention to the f inal section,
“Prognosis and Future Perspectives.” That section reads as follows: “Without
treatment, SPS progresses to total disability related to generalized rigidity and
86Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999) (citing § 223(a) of the
Social Security Act, as set forth in 42 U.S.C. § 423(d)(2)(A)).
87Doc. 32-2 at 11.
88Id. at 121.
89Id. at 8.
90Id.
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secondary musculoskeletal deformities. The pathogenetic autoimmune mechanisms
remain to be elucidated.”91
Finally, Dr. Madden wrote a letter dated July 13, 2011, in which she describes
how the side effects of Mason’s medications impair his ability to function. She notes
that Mason’s medications make him “very tired to the point of not being able to stay
awake while engaged in an appointment. There have been therapy sessions with me
when Mr. Mason has fallen asleep despite a valiant effort to stay awake and to benefit
from the therapeutic encounter.”92 Dr. Madden states that she “repeatedly noted that
[Mason’s] insight and judgment is good when not impaired due to the effects of
medication which alters his cognitive faculties,” but “neuropsychological testing has
indicated that he has a severe degree of intellectual loss from one and a half years ago
when he was still able to function as a manger at Federal Express.”93 Further, Dr.
Madden states that the side effects of Mason’s medications “are so serious that Mr.
Mason and his wife have frequently told me that he does not take his medication so that
he will be able to stay awake and alert enough so that he can communicate,
understand and remember what has taken place in a health care appointm ent or in
appointments with other agencies and physicians.”94
L. Aetna’s Appeals Committee Upholds the Denial of Mason’s Claim
The Plan provides that if an “adverse benefit determination is appealed on the
basis of medical judgment, the appeal committee shall consult with an independent
health care professional who is qualified in the areas of dispute who shall not have
91Id. at 9.
92Id. at 13.
93Id.
94Id.
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been involved in the initial claim denial.”95 In October 2011 Aetna’s Appeals Committee
upheld the denial of Mason’s claim. The denial letter states that the Committee
reviewed “all appeal information submitted, all medical documentation and the Peer
Physician Reviews dated 02/10/11, 02/24/11, 03/07/11, 03/08/11, 03/24/11, 08/06/11,
08/09/11, and 09/14/11.”96 These Peer Physician Reviews included reviews from the
original three specialists in internal medicine, neurology, and neuropsychology, as well
as second opinions from three different physicians in those fields. Based on their
review, the Committee concluded that there were “no significant objective findings to
substantiate that a functional impairment exists that would render [Mason] unable to
perform [his] sedentary job duties as a Tax Analyst from 12/01/10 through current.”97
1. Aetna’s Internal Medicine Peer Reviews
a.) Wendy Weinstein, M.D.
Dr. Weinstein, who is board-certified in internal medicine, submitted a
February 11, 2011 Peer Physician Review that states she reviewed various medical
reports and concludes that “none of the examination findings by multiple providers have
documented abnormalities that would preclude the claimant from performing a
sedentary occupation.”98 Dr. Weinstein submitted a second Peer Physician Review on
March 9, 2011, after receiving additional medical reports to review. In neither of these
reviews did Dr. Weinstein engage in a “peer-to-peer consultation” with any of Mason’s
treating physicians.99
With regard to the effects of Mason’s SPS, Dr. Weinstein’s February 11 report
states that Mason was noted to “walk stiffly” at “one point,” “but there has been no
95Doc. 32-6 at 72.
96Doc. 32-1 at 1.
97Id. at 2.
98Doc. 32-2 at 260.
99Id. at 255, 260.
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documentation of abnormal muscle tone on specific muscle testing or other
musculoskeletal or neurologic examination abnormalities.” She acknowledges that
Dr. Meekins diagnosed Mason with SPS in February 2010, but adds that “there was no
documentation of any change in the claimant’s physical examination and no
documentation of specific functional impairments that would preclude the claimant from
performing his sedentary occupation as of 12/1/10.”100 Dr. Weinstein’s March 9 report
reaches the same conclusion, but adds the fact that on November 15, 2010, Dr. Lord
observed Mason in “moderate pain and distress.” Dr. Weinstein discounted this
observation, however, because “no details of specific observations were presented.”101
With regard to the side effects of Mason’s medications, Dr. Weinstein discounts
Dr. Dukarm’s neuropsychological test’s conclusion that Mason was likely suffering from
a cognitive defect caused in part by the effects of his medications. Dr. Weinstein writes
that the test’s “findings were non-specific and it was noted they could be attributed to
medication affects, pain, and sleep disturbance as well as depression.”102 Although
Mason “complained of somnolence from his medications,” Dr. Weinstein writes, “there
has been no documentation of pathologic hypersomnolence, difficulty with
communication in the office visits, or significant cognitive impairments. Progress notes
have described that claimant as alert and intelligent.”103 Dr. Weinstein was not provided
with any of Dr. Madden’s records.
Dr. Weinstein’s second review indicates that she was provided with a copy of
Dr. Dukram’s neuropsychological test and Combs’ email.104 Despite Dr. Dukram’s
finding that Mason had a cognitive impairment on September 27, 2010, Dr. Weinstein
100Id. at 255.
101Id. at 260.
102Id. at 256.
103Id.
104Id. at 258.
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writes that “it appears the claimant was still able to perform his own occupation with the
first date of absence being listed as 11/10/10.”105 (Dr. Weinstein claims that she
reviewed all of Mason’s records, including Combs’ email, before reaching this
conclusion).106
b.) Second Opinion From Dennis Mazal, M.D.
Dr. Mazal, who is board certified in pulmonology and internal medicine,
submitted an August 8, 2011 Peer Physician Review that states that he cannot “discuss
functionality” based on Mason’s SPS diagnosis because neurological diagnoses are
“not within the scope of [his] specialty.”107
With regard to the side effects of Mason’s medications, Dr. Mazal wrote without
further explanation that “[t]here is no documentation that any of those medications
caused any clinically significant side effects or adverse reactions that impact the
claimant’s ability to perform the duties of a sedentary demand occupation during the
time period under consideration.”108 Dr. Mazal did not engage in a peer-to-peer
consultation with any of Mason’s treating physicians.
2. Aetna’s Neuropsychology Peer Reviews
a.) Elana Mendelssohn, Phy.D.
Dr. Mendelssohn, who is board certified in clinical psychology and
neuropsychology, submitted a February 24, 2011 Peer Physician Review.
Dr. Mendelssohn prefaced her report by noting that most of the records she reviewed
pertain to Mason’s “physical complaints” related to SPS, and therefore she deferred “to
the appropriate medical specialists to determine the impact of [Mason’s] medical
105Id. at 260.
106Id. at 259.
107Doc. 32-3 at 1.
108Id.
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complaints on his functionality.”109 Dr. Mendelssohn proceeded to evaluate Mason’s
neurological complaints in the records she reviewed. She ultimately concluded that
“clinical documentation does not support a functional impairment that would preclude
[Mason] from performing the essential duties of his own occupation from 12/1/10 to
forward.”110 Dr. Mendelssohn submitted a second Peer Physician Review on March 7,
2011, after receiving Combs’ email to review. In neither of these reviews did
Dr. Mendelssohn engage in a “peer-to-peer consultation” with any of Mason’s treating
physicians.111
With regard to the side effects of Mason’s medications, Dr. Mendelssohn noted
that “various treating providers included sporadic reports of [Mason’s] emotional and
cognitive difficulties,” but discounted this by concluding that none of those providers
“included specific measurements of [Mason’s] cognition or a description of direct and
observed behaviors to corroborate the presence of impairment in neuropsychological
functioning.”112
Dr. Mendelssohn noted that Dr. Dukarm’s neuropsychological exam diagnosed
Mason with a cognitive disorder secondary, in part, to the side effects of his
medications. But she then offered four reasons for why she discounted the results of
this test: (1) Mason continued to work afterward; (2) “there was no indication that
[Dr. Dukarm] utilized symptom validity measures to ensure adequate effort and
motivation and valid test findings; (3) “office visits just prior to and after the
neuropsychological examination noted that the claimant presented as alert and oriented
with normal attention and concentration;” and (4) “none of [Mason’s] providers indicated
109Doc. 32-2 at 242.
110Id. at 245.
111Id. at 245, 249.
112Id. at 245.
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that the claimant was unable to work in relation to his neuropsychological status.”113
Dr. Mendelssohn made these four findings without the benefit of Dr. Madden’s records
or Combs’ email.
After reviewing Combs’ email that outlined Mason’s problems at work,
Dr. Mendelssohn maintained that Mason had not shown that he is disabled because:
(1) Combs’ report of Mason slurring words was not reflected in the documents that she
reviewed previously; (2) although Combs reported that Mason was falling asleep at
work, “there was no indication that [Mason] fell asleep during [Dr. Dukarm’s]
evaluation;” (3) “[a]lthough [Dr. Dukarm] noted that [Mason] appeared lethargic, more
specific description was not included;” and (4) there was no indication from Mason’s
various office visit notes that he was “falling asleep during his office visits nor did the
provided information include . . . description of overt cognitive difficulties.”114 Again,
Dr. Mendelssohn lacked Dr. Madden’s records when she made these findings.
Dr. Mendelssohn concluded that, although Combs’ report indicates “both physical and
cognitive difficulties,” “there continues to be a lack of clear and consistent description of
direct and observable behaviors to substantiate the presence of a functional
impairment.”115
b.) Second Opinion From Leonard Schnur, Phy.D.
Dr. Schnur, who is board certified in psychology, submitted an August 9, 2011
Peer Physician Review. He was provided with Dr. Madden’s July 13, 2011 letter. With
regard to the side effects of Mason’s medications, Dr. Schnur’s report states that the
documentation he reviewed “referenced possible side effects from [Mason’s]
medication regimen for treatment of stiff-man syndrome, which apparently results in
drowsiness, sedation, and reduced concentration and attention.” Dr. Schnur declined
113Id.
114Id. at 249-50.
115Id. at 250.
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to comment on how these side effects impact Mason’s ability to work, however, stating
that Mason’s “medication regimen and any adverse medication side effects . . . would
go beyond the scope of [his] expertise and should be addressed by the appropriate
peer specialty.”116
3. Aetna’s Neurology Peer Reviews
a.) Vaughn Cohan, M.D.
Dr. Cohan, who is board certified in neurology, submitted a March 26, 2011 Peer
Physician Review. After describing the records he reviewed, Dr. Cohan states that
“[t]he neuropsychological and neurocognitive aspects of this case would fall outside the
scope of general medical neurology” and therefore he deferred to Dr. Mendelssohn
regarding those issues.117
Dr. Cohan describes a “peer-to-peer consultation” he had with Dr. Kim, who is a
family practitioner and not a neurologist, despite noting that Mason’s treating
neurologists are Dr. Downs and Dr. Meekins.118 According to Dr. Cohan, Dr. Kim stated
that Mason reported “that his cramping diminishes while on medications, but his
medications cause him to experience undesirable adverse sedative effect.”119 When
Dr. Cohan asked Dr. Kim “about his notes indicating that [Mason] appears in office to
be alert and oriented with no evidenced signs of over-sedation[,] Dr. Kim stated that the
claimant has reported to him that he does not take his medications prior to office visits
so that be may interact with medical provider optimally.”120 According to Dr. Cohan,
Dr. Kim stated that he had never observed Mason overly sedated or cognitively
116Doc. 32-3 at 6.
117Doc. 32-2 at 265.
118Id. at 245, 249.
119Id. at 265.
120Id.
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impaired and indicated “that there is no apparent phy sical impairment that would
preclude performance of desk work.”121
Dr. Cohan relied heavily on Dr. Kim’s statements in his report. He states that
“[a]lthough there are references to over-sedation in the medical record and as
submitted by one of the claimant’s coworkers/managers, nevertheless, there is no
independent medical verification or substantiation to that effect. When the claimant has
been seen medically by medical providers, there has been no report of objective excess
sedative or medication effect.”122 (Dr. Cohen was provided with Dr. Madden’s records
and he claims that he reviewed them.)123 Dr. Cohen concluded that “the documentation
provided fails to demonstrate objective evidence of a functional impairment for the
claimant’s own sedentary occupation from 12/1/10 to the present.”124
b.) Second Opinion From Andrew J. Gordon, M.D.
Dr. Gordon, who is board certified in neurology, submitted an August 11, 2011
Peer Physician Review. Mason asserts that “Dr. Gordon was the only reviewer hired by
Aetna that did not appear to be ‘in house.’ He apparently works for MES.”125 After
reviewing Mason’s records, including those from Dr. Madden, Dr. Gordon concluded
that “there is significant objective clinical documentation that reveals a functional
impairment that would preclude [Mason] from performing the essential duties of [his]
own occupation which is a sedentary demand level from 12/01/10 through current.”126
He supported this conclusion with the following evidence:
121Id.
122Id. at 266.
123Id. at 264.
124Id. at 266.
125Doc. 55 at 23.
126Doc. 32-3 at 11.
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The claimant is described by numerous doctors including two neurologists
as having Stiff Man Syndrome. He tests positive twice (blood work).
There are numerous notes indicating refractory spasms, cramping and
poor work performance resulting from these symptoms. Evaluation and
testing has excluded other diagnoses. The claimant is described as
responding poorly to usual treatment and he is described as suffering
from side effects with treatment which include lethargy and sleepiness. A
supervisor at work documents his inability to properly perform his duties
and gives numerous examples of his impairments that have occurred as a
result of Stiff Man Syndrome. Finally, the treating neurologist notes that
the claimant cannot work due to refractory symptoms and resultant
functional impairment.127
In response to this report, Aetna sent Dr. Gordon the f ollowing message:
“Dr. Gordon please clarify: You found the claimant to be impaired from 12/01/10
through current however; [sic] your report and findings were based on the medical data
dated prior to the disability date under consideration of 12/01/10. Please review and
comment on the medical data, physical exam findings that demonstrate a functional
impairment for the time period under review (12/01/10 through current).”128
About one month later, Dr. Gordon submitted a second review in which he states
that Aetna’s request for “clarification” changed his prior recommendation, and he now
concludes that Mason has not shown that he is disabled. Dr. Gordon asserts that
“records from earlier periods (early 2010 and before) document more significant
difficulties with spasticity, gait impairment and altered mental status,” but “the more
recent records from 12/1/10 onward do not demonstrate functional impairment from a
neurologic perspective.”129 Dr. Gordon did not engage in a peer-to-peer consultation
with any of Mason’s treating physicians.
127Id.
128Id. at 14-15.
129Id. at 15.
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III. STANDARD OF REVIEW
A. The Abuse of Discretion Standard Applies
To determine which standard of review applies in an ERISA benefits case, the
court must determine whether the ERISA plan unambiguously grants discretion to the
administrator.130 “[B]y default, review of denial of ERISA benefits is de novo” and for
the administrator “to obtain the more lenient abuse of discretion standard of review, a
plan must unambiguously so provide.”131 Here, the parties agree that the benefit plan at
issue gives the administrator, Aetna, discretionary authority to determine benefits
eligibility.132 The court will therefore review Aetna’s determination for abuse of
discretion.133 Under the abuse of discretion standard, courts consider all of the relevant
circumstances and defer to the administrator’s decision so long as it is reasonable.134
That is, courts defer “to the administrator’s benefits decision unless it is ‘(1) illogical,
(2) implausible, or (3) without support in inferences that may be drawn from the facts in
the record.’”135
Determining that the abuse of discretion standard applies “is only the first step” in
determining the standard by which courts review an administrator’s denial of benefits.136
Even where the court must “nominally review for abuse of discretion, the degree of
deference” that the court will accord to an administrator’s decision can vary significantly
130Pac. Shores Hosp. v. United Behavioral Health, 764 F.3d 1030, 1039 (9th Cir. 2014).
131Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673 (9th Cir. 2011).
132Doc. 55 at 28; Doc. 59 at 16.
133Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
134Pac. Shores Hosp., 764 F.3d at 1042.
135Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012) (quoting
Salomaa, 642 F.3d at 676).
136Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 867 (9th Cir.
2008).
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depending on the presence of a conflict of interest137 or procedural irregularities138 in the
record. Here, on account of the significant conflict of interest and procedural
irregularities presented, the court concludes that Aetna’s decision is entitled to little
deference.
1. Conflict of Interest
“[T]he degree of skepticism with which [courts] regard a plan administrator’s
decision when determining whether the administrator abused its discretion varies based
upon the extent to which the decision appears to have been affected by a conflict of
interest.”139 Where an administrator operates under a conflict of interest, that conflict
does not alter the standard or review itself, but it “‘must be weighed as a factor in
determining whether there is an abuse of discretion.’”140 In evaluating a conflict of
interest, the court must consider not only the terms of the underlying plan and the
medical evidence in the record,141 but also the “nature, extent, and effect on the
decision-making process of any conflict of interest” and decide on the record as a whole
“how much or how little to credit the plan administrator’s reason for denying insurance
coverage.”142 Thus, if all of the other factors are “closely balanced,” a conflict of interest
“will act as a tiebreaker.”143
137Id. at 868.
138Abatie, 458 F.3d at 972.
139Stephan, 697 F.3d at 929.
140Abatie, 458 F.3d at 965 (quoting Firestone, 489 U.S. at 115).
141Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009).
142Abatie, 458 F.3d at 967-68. See also Salomaa, 642 F.3d at 681 (Hall, J., dissenting)
(“Although this standard’s dualism between skepticism and deference may seem strange, it is
the proper standard and must be applied carefully.”).
143Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008).
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Mason argues that Aetna operates under a conf lict of interest because its
behavior is similar to the behavior of the administrators in Abatie,144 Saffon,145
Montour,146 and Salomaa.147 Those cases are not on all fours, however, because they
each involved a disability determination made by the same entity that funded the ERISA
plan. In Firestone, the Supreme Court “did not catalogue the full range of types of
conflicts of interest, but it suggested that a conflict exists when a plan administrator
(which acts as a fiduciary toward the plan participants, who are beneficiaries) is also the
sole source of funding for an unfunded plan.”148 Administrators who operate under this
structural conflict of interest have an incentive “to pay as little in benefits as possible to
plan participants because the less money the insurer pays out, the more money it
retains in its own coffers.”149 This specific conflict is not present here because the Plan
is self-funded and maintained by FedEx.150 Aetna is the Plan’s “Claims Paying
Administrator”151 and, in that role, determines eligibility for Plan benefits.152
But that is not the end of the story. Mason also argues that a conflict of interest
exists here because “Aetna’s contract with FedEx depends on providing favorable
144Abatie, 458 F.3d at 959.
145Saffon, 522 F.3d at 866.
146Montour, 588 F.3d at 626-27.
147Salomaa, 642 F.3d at 674.
148Abatie, 458 F.3d at 965 n.5 (citing Firestone, 489 U.S. at 105).
149Abatie, 458 F.3d at 966.
150Doc. 59 at 3 ¶¶ 3-4.
151Doc. 32-6 at 1.
152Id. at 3.
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financial results for FedEx.”153 Aetna responds by calling this a “scandalous allegation”
that is “completely unfounded and not supported by any evidence in the record.”154
Defendants do not dispute that FedEx pays benefits claims out of its own
undedicated funds. FedEx therefore has an obvious incentive to hire a Claims Paying
Administrator that minimizes benefits awards. According to the Supreme Court in
Glenn, an employer’s own conflict may “extend to its selection of an insurance company
to administer its plan.”155 In fact, it has been noted that “[a] so-called indepe ndent
administrator may have much more of an incentive to decide against claimants” than
either an employer or “an insurance company spending ‘its own money.’”156 These
“independent” administrators may have an incentive to “show how tough they are on
claims to better market their services to self-insured employers,” whereas insurance
companies “may have an incentive to be more liberal than is appropriate because its
experience-based premiums amount to a cost-plus contract, such that the more it
spends, the more it makes.”157 Similarly, an employer might “wish to slant its decisions
in favor of coverage in close cases” in order to “make working there attractive by means
of a reputation for good medical coverage,” among other reasons.158
It is apparent from the record that FedEx’s (and by extension, Aetna’s) conflict of
interest significantly colored the decision-making process. Nowhere is this conflict more
evident than with Aetna’s response to Dr. Gordon’s initial finding that Mason is disabled.
Aetna’s treatment of Dr. Gordon’s disability finding suggests bias for at least five
153Doc. 55 at 37.
154Doc. 59 at 23.
155Glenn, 554 U.S. at 114.
156Abatie, 458 F.3d at 977 (Kleinfeld, J., concurring).
157Id.
158Id.
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reasons. First, Aetna’s request for “clarification” misleadingly implies that Dr. Gordon’s
initial report only considered medical data dated before December 1, 2010.159 This is
not so: Dr. Gordon’s report also relies on Mason’s second blood test that cam e back
positive for SPS (dated December 7, 2010)160 and Dr. Downs’ June 10, 2011 letter.161
Second, Mason asserts and Aetna does not deny that the Plan does not forbid
consideration of medical records that predate the date of the claim.162 It would be
illogical for it to do so.
Third, Aetna asked Dr. Gordon to submit a new report, ostensibly because he
relied on pre-December 2010 data, but it did not ask the sam e of its doctors who found
that Mason was not disabled, even though they, too, relied on such data.163 It is unclear
why Aetna needed “clarification” from Dr. Gordon, but not Drs. Weinstein or
Mendelssohn.
Fourth, the date restriction that Aetna imposed on Dr. Gordon is inconsistent with
the scope of records upon which Aetna itself relied. For example, Aetna’s initial denial
letter references Mason’s September 2010 neuropsychological exam, and its final
denial letter relies on exam reports from July 16, 2010 and November 24, 2010.
Finally, Dr. Gordon’s supplemental report indicates that he was influenced by
Aetna’s suggestive request for “clarification.” Dr. Gordon’s second report concludes
that “[w]hile records from earlier periods (early 2010 and before) document more
significant difficulties with spasticity, gait impairment and altered mental status; the
159Doc. 32-3 at 15.
160See id. at 11 (noting that Mason tested “positive twice (blood work)” for SPS); id. at 10
(“Anti-GAD antibodies (diagnostic test for Stiff Man Syndrome) are positive (slightly elevated)
on 12/7/10 and significantly elevated on 2/24/10 and negative from 7/28/10.”).
161Id. at 11 ([T]he treating neurologist notes that the claimant cannot work due to
refractory symptoms and resultant functional impairment.”).
162Doc. 64 at 31.
163See Doc. 32-2 at 243-45, 252-256, 259-60.
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more recent records from 12/1/10 onward do not demonstrate functional impairment
from a neurologic perspective.”164 Dr. Gordon does not state what might have changed,
from a neurologic perspective or otherwise, that could explain this significant
improvement in Mason’s condition. Nor does he attempt to reconcile his conclusion
with the conclusion of Mason’s treating doctors that Mason’s disability was permanent
and progressive in nature.165
2. Procedural Irregularities
“A procedural irregularity, like a conflict of interest, is a matter to be weighed in
deciding whether an administrator’s decision was an abuse of discretion.”166 If the
administrator “can show that it has engaged in an ‘ongoing, good faith exchange of
information between [itself] and the claimant’” and the evidence shows only a minor
procedural irregularity, the court should continue to give the administrator’s decision
broad deference.167 If the administrator’s “procedural defalcations are flagrant, de novo
review applies” and “the court is not limited to the administrative record and may take
additional evidence.”168 Most of the time, the procedural errors “are not sufficiently
severe to transform the abuse-of-discretion standard into a de novo standard” and in
164Doc. 32-3 at 15.
165Doc. 32-2 at 160 (“Probable duration of condition: life long”); id. at 161 (“[E]stimate the
beginning and ending dates for the period of incapacity: permanent”); id. at 194 (stating that
Mason’s SPS “has rendered him permanently disabled.”); id. at 198 (“I anticipate significant
clinical improvement by (date): never.”). See also id. at 8-9. These prognoses are consistent
with Dr. Meekins’ assessment of Mason’s SPS as progressive on July 28, 2010. Id. at 61. See
also id. at 172 (Dr. Lord noted on July 29, 2010, that Mason’s symptoms have “progressively
worsened and his symptoms are currently poorly controlled.”); id. at 173 (Dr. Lord noted on
August 16, 2010, that Mason’s SPS had “deteriorated”); id. at 188 (Dr. Lord noted on
October 28, 2010, that Mason’s SPS had “deteriorated”).
166Abatie, 458 F.3d at 972.
167Id. (quoting Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot.
Plan, 349 F.3d 1098, 1107 (9th Cir. 2003)).
168Id. at 973.
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such instances the court must “weigh any procedural errors as a factor in determining
whether [the administrator] abused its discretion.”169
Saffon is instructive. In Saffon the claimant was receiving disability benefits on
account of degeneration of her cervical spine.170 When MetLife, her plan administrator,
commissioned a doctor to review her medical records, the doctor determined that the
claimant’s file lacked “detailed, objective, functional findings or testing which would
completely preclude” the claimant’s return to work.171 MetLife forwarded its doctor’s
report to the claimant’s treating neurologist, who then submitted to MetLife a note
explaining why the claimant’s previous MRI was objective evidence of her cervical
pathology. MetLife’s doctor was unpersuaded by this submission, and MetLife
terminated the claimant’s benefits. The termination letter stated that the claimant could
appeal this determination by providing, among other things, “objective medical
information to support [her] inability to perform the duties of [her] occupation.”172
Although the claimant submitted additional evidence on appeal, Metlife’s second
reviewing doctor reached the same conclusion as its first: there was “‘not enough
objective medical findings and office notes’” showing that the claimant’s “‘self-reported
headache and chronic pain syndrome has been enough to preclude her from’
working.”173 MetLife affirmed the termination.
The Ninth Circuit held that MetLife’s termination was riddled with procedural
errors. It held that MetLife’s termination letter was insufficient for at least three reasons.
First, although the letter notes that “‘[t]he medical information provided no longer
provides evidence of disability that would prevent [the claimant] from performing [her]
169Pac. Shores Hosp., 764 F.3d at 1040. See also Abatie, 458 F.3d at 972.
170Saffon, 522 F.3d at 866.
171Id. at 869.
172Id.
173Id. at 869-70.
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job or occupation,’” it does not “explain why that is the case, and certainly does not
engage [the claimant’s treating neurologist’s] contrary assertion.” Second, although the
letter suggests that the claimant can “appeal by providing ‘objective medical information
to support [her] inability to perform the duties of [her] occupation,’” it “does not explain
why the information [she] has already provided is insufficient for that purpose.”174 And
third, if MetLife believed that it was necessary for the claimant to present some means
for objectively testing the claimant’s ability to perform her job, such as a “Functional
Capacity Evaluation,” MetLife “was required to say so at a time when [the claimant] had
a fair chance to present evidence on this point.”175 In addition to these errors related to
the notice, the court also faulted MetLife for communicating directly with the claimant’s
doctors without advising her of the communication and taking “various of her doctors’
statements out of context or otherwise distorted them in an apparent effort to support a
denial of benefits.”176
The procedures that Aetna followed in this case are even more flawed that those
at issue in Saffon.
a. Aetna’s Notices Are Deficient
ERISA plan administrators “must follow certain practices when processing and
deciding plan participants’ claims.”177 For example, 29 C.F.R. § 2560.503-1 provides
that an ERISA plan administrator investigating a claim must engage in “a meaningful
dialogue” with the beneficiary.178 “If benefits are denied in whole or in part, the reason
174Id. at 870.
175Id. at 871.
176Id. at 873.
177Abatie, 458 F.3d at 971.
178Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (citing
former 29 C.F.R. § 2560.503-1(f)). The pertinent language is now codified at 29 C.F.R.
§ 2560.503-1(g).
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for the denial must be stated in reasonably clear language, with specific reference to
the plan provisions that form the basis for the denial; if the plan administrators believe
that more information is needed to make a reasoned decision, they must ask for it.”179
Aetna’s March 28, 2011 denial notice analyzes hundreds of pages of Mason’s
medical records in one paragraph containing a series of disjointed sentences.180 Like
the notice in Saffon, it does not clearly explain to the claimant what was necessary to
perfect the claim. Although Aetna informs Mason that he was required to submit
“medical documentation that clearly states the significant objective findings that
substantiate [his] disability,” such as physician exam reports, office notes, or diagnostic
test results such as lab tests,181 it does not clearly inform him of the specific reasons
why its reviewers found that the evidence he already submitted was insufficient. For
example, it does not clearly state that Aetna would disregard his diagnostic test results
if they do not contain “consistency or validity testing results.”182 If Aetna believed that
validity testing results were necessary, it was required to say so “in a manner calculated
179Booton, 110 F.3d at 1463. See also 29 C.F.R. § 2560.503-1(g)(1) (requiring, among
other things, that notices of adverse benefit determinations must set forth “in a manner
calculated to be understood by the claimant:” (i) “[t]he specific reason or reasons for the
adverse determination;” (ii) “[r]eference to the specific plan provisions on which the
determination is based;” and (iii) “[a] description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why such material or
information is necessary.”).
180Doc. 32-2 at 4.
181Id. at 5.
182See Dr. Mendelssohn’s first report, id. at 243-44 (“Dr. Dukarm noted that the claimant
appeared lethargic, and the claimant reported having a headache and experiencing pain.
There was no indication that formal measures of validity were utilized to ensure valid test
results.”); id. at 245 (rejecting Dr. Dukarm’s cognitive disorder diagnosis in part because “there
was no indication that the examiner utilized symptom validity measures to ensure adequate
effort and motivation and valid test findings.”); Dr. Mendelssohn’s second report, id. at 249 (“[I]n
my previous review I questioned the presence of whether the claimant’s test performance was
reflective of valid test findings. However, validity could not be determined given that there was
no indication that the examiner administered symptom validity measures to ensure optimal
effort and motivation and validity of the neuropsychological evaluation.”).
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to be understood by”183 Mason at a time when he had a meaningful opportunity to
present evidence on this point.
The record is replete with similar examples. Aetna’s denial notice does not
disclose to Mason that Dr. Mendelssohn discounted his doctors’ observ ations of his
emotional and cognitive difficulties because those doctors did not include “specif ic
measurements of [Mason’s] cognition or a description of direct and observed behaviors
to corroborate the presence of impairment in neuropsychological functioning.”184 Nor
does it disclose to him that Dr. Weinstein discounted an exam finding that he had an
irregular gait because there was “no documentation of abnormal muscle tone on
specific muscle testing or other musculoskeletal or neurologic examination
abnormalities.”185 Or that Dr. Weinstein discounted his somnolence complaints
because there was “no documentation of pathologic hypersomnolence, difficulty with
communication in the office visits, or significant cognitive impairments.”186 Or that
Dr. Weinstein found that Mason’s file was lacking “documentation of consistently
abnormal musculoskeletal or neurologic examination findings.”187 Aetna’s failure to
disclose these alleged deficiencies to Mason, “a maneuver that has the effect of
insulating [its] rationale from review, contravenes the purpose of ERISA.”188
Further, when Dr. Kim filled out Aetna’s “Attending Physician Statement” form,
he listed numerous diagnostic test results that, in his opinion, were “objective data” that
document Mason’s disability, including the lab tests that confirmed Mason’s
18329 C.F.R. § 2560.503-1(g)(1).
184Doc. 32-2 at 245.
185Id. at 255.
186Id. at 256.
187Id. 32-2 at 260.
188Cf. Abatie, 458 F.3d at 974.
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diagnosis.189 If Aetna believed that these test results did not contain “significant
objective findings that substantiate” his disability, it was required to say so and explain
why not. Aetna’s denial letter makes no mention of Mason’s lab tests; it vaguely
concludes that Dr. Kim “was unable to provide any objective findings or clinical
observations to correlate with your subjective complaints due to diagnosis of stiff person
syndrome.”190
b. Aetna Failed to Engage in a Good Faith Exchange of
Information
In determining the degree of deference to which an administrator is entitled,
courts must also consider its course of dealing with the claimant and her doctors.191 In
Saffon the Ninth Circuit chided the plan administrator for only communicating the
results of its reviewing physician’s findings with the claimant’s doctor and not also the
claimant herself. Aetna did substantially worse here by providing none of its reviewing
doctors’ reports to either Mason or his physicians at any point during the administrative
process.192 Aetna’s initial denial letter fails to provide Mason with even its reviewers’
names, identifying them only as “independent peer physicians specializing in internal
medicine, neurology, and neuropsychology.”193 Without any way for his treating doctors
to confer with Aetna’s doctors, or to submit reports that respond to Aetna’s reports,
Aetna significantly hindered Mason’s ability to develop the administrative record.
189Doc. 32-2 at 198.
190Id. at 4.
191Saffon, 522 F.3d at 873.
192Doc. 55 at 36.
193Doc. 32-2 at 4.
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Defendants argue that Mason had no right to review and rebut its peer review
reports “generated during the appeal process.”194 Even assuming this is true,
Defendants confuse the issue. The problem is not that Aetna failed to disclose to
Mason the reports that Drs. Mazal, Schnur, and Gordon generated during the appeal
process, but rather the reports from Drs. Weinstein, Mendelssohn, and Cohan upon
which Aetna relied when it initially denied Mason’s claim.195 The Ninth Circuit has held
that where an administrator does not give the claimant, her attorney, or her physicians
access to the medical reports of its own physicians upon which it relied, this violates the
claimant’s statutorily right to a “full and fair” review of the denial.196
What is more, Aetna even failed to provide its own reviewers with pertinent
records. As Mason observes, Aetna failed to provide Dr. Weinstein or Dr. Mendelssohn
with any records from his treating psychologist, Dr. Madden.197 Defendants dispute this,
and assert that “Dr. Mendelssohn’s report specifically states that Dr. Mendelssohn
reviewed at least fourteen medical notes from [Dr. Madden]. Dr. Mendelssohn also
commented on these records directly in her report.”198 This is false. Defendants
support their factual assertions with a citation to Aetna’s March 28, 2011 denial letter,
194Doc. 73 at 8 (citing Midgett v. Washington Grp. Int’l Long Term Disability Plan, 561
F.3d 887, 896 (8th Cir. 2009); Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1166
(10th Cir. 2007); Warming v. Hartford Life & Acc. Ins. Co., 663 F. Supp. 2d 10, 20 (D. Me.
2009); Winz-Byone v. Metro. Life Ins. Co., No. EDCV 07-238-VAP, 2008 WL 962867, at *8
(C.D. Cal. Mar. 26, 2008)).
195See Metzger, 476 F.3d at 1166 (holding that although plan administrators must
release documents relied upon during the initial benefit determination, they need not release
“documents generated during the appeal process itself.”); Midgett, 561 F.3d at 896 (“[T]he full
and fair review to which a claimant is entitled under 29 U.S.C. § 1133(2) does not include
reviewing and rebutting, prior to a determination on appeal, the opinions of peer reviewers
solicited on that same level of appeal.”) (emphasis added).
196Salomaa, 642 F.3d at 679 (citing 29 U.S.C. § 1133).
197Doc. 32-2 at 247-48.
198Doc. 73 at 7.
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not Dr. Mendelssohn’s reports.199 Neither of Dr. Mendelssohn’s reports state that she
reviewed any records from Dr. Madden200, and Dr. Mendelssohn does not comment on
any of Dr. Madden’s records in either of her two reports.201
This particular deficiency was likely significant to Dr. Weinstein’s and
Dr. Mendelssohn’s findings. Dr. Mendelssohn concludes that none of the records that
Aetna provided her show that Mason “was falling asleep during his office visits nor did
the provided information include . . . description [sic] of overt cognitive difficulties.”202
Similarly, Dr. Weinstein states that “there has been no docum entation of pathologic
hypersomnolence, difficulty with communication in the office visits, or significant
cognitive impairments.”203 If Drs. Weinstein and Mendelssohn had been provided with
Dr. Madden’s records, they would have learned that for each of Mason’s 14 visits with
Dr. Madden, spanning approximately six months, Dr. Madden’s mental status exams
noted that Mason was “lethargic.”204 Had they followed up with Dr. Madden about what
she meant, Dr. Madden would have likely informed them that Mason was “very tired”
during his therapy sessions and had fallen asleep “despite a valiant effort to stay
awake.”205
199Doc. 32-2 at 4.
200Id. at 241-42, 247-48.
201Id. at 241-46, 247-50.
202Id. at 249-50.
203Id. at 256.
204Id. at 63, 66, 72, 81, 83, 88, 91, 94, 97, 103, 106, 110, 113, and 117.
205Id. at 13. Although Defendants correctly note that Dr. Schnur was provided with
Dr. Madden’s records, he made no findings regarding the side effects of Mason’s medications,
stating that he lacked necessary expertise to do so. Doc. 32-3 at 6.
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Finally, Aetna’s physicians erred by not engaging in peer-to-peer consultations
with Mason’s physicians to resolve perceived ambiguities in Mason’s records.206 For
example, Dr. Weinstein noted that Dr. Lord observed Mason in “moderate pain and
distress,” but discounted this finding because Dr. Lord provided “no details of specific
observations.”207 Yet Dr. Weinstein’s report does not indicate that she contacted
Dr. Lord to obtain more details about what he observed, despite the fact that Dr. Lord
invited Aetna to contact him with “any further concerns or questions.”208 Similarly,
Dr. Mendelssohn noted that Dr. Dukarm observed that Mason “appeared lethargic”
during his neuropsychological test, yet she discounted this observation because “more
specific description [sic] was not included.”209 Dr. Mendelssohn’s report does not
indicate that she contacted Dr. Dukarm to obtain clarification of what he specifically
meant by “lethargic.” The Ninth Circuit’s description of Aetna’s efforts in Booton is
equally apt here: “Lacking necessary- and easily-obtainable information, Aetna made its
decision blindfolded.”210
B. A Bench Trial on the Record Would be Improper
The parties dispute whether the proper vehicle for determining Mason’s benefit
claim is a “bench trial on the record” followed by a judgment that complies with Rule 52
or summary judgment under Rule 56. Relying on Kearney v. Standard Insurance
Company,211 Mason argues that “the proper procedure in ERISA cases involving the
206The only Aetna physician that reached out to one of Mason’s treating physicians was
Dr. Cohan, but this was not a true “peer-to-peer” consultation because Dr. Cohan, a
neurologist, inexplicably did not consult with Mason’s neurologists but instead Dr. Kim, a
general practitioner. Doc. 32-2 at 265.
207Id. at 260.
208Id. at 172.
209Id. at 249.
210Booton, 110 F.3d at 1463.
211175 F.3d 1084 (9th Cir. 1998) (en banc).
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review of the denial of benefits is a ‘trial on the record.’”212 Mason asserts that, “[s]ince
Kearney, the Ninth Circuit has reaffirmed [that] a ‘trial on the record’ is the correct
approach” in Thomas v. Oregon Fruit Products Co.213 Under this approach, Mason
argues, the court can “decide what the facts are.”214
Mason is essentially seeking to transform this abuse-of-discretion case into one
involving de novo review. But, because the cases upon which his argument relies
involve de novo review, his argument misses the mark.215 It is true that in ERISA cases
decided under the de novo standard courts may conduct trials on the record. This is
because those courts are tasked with evaluating evidence and making credibility
determinations anew.216 Such trials are not appropriate in abuse-of-discretion cases,
however. As the Ninth Circuit explained in Bendixen v. Standard Ins. Co., “it is
important to keep in mind that the remand and reversal of the summary judgment in
[Kearney] depended upon the application of de novo review by the district court.”217 In
212Doc. 55 at 2.
213228 F.3d 991, 996 (9th Cir. 2000) (“Kearney clarifies that participants and
beneficiaries claiming benefits under ERISA are not entitled to ‘full trial[s] de novo’ because
such trials would undermine the policies behind ERISA. Rather, Kearney created a ‘novel form
of trial,’ in which the district court, subject to its discretion to consider additional evidence under
limited circumstances, is to conduct ‘a bench trial on the record.’”) (citing Kearney, 175 F.3d at
1094, 1095 & n.4).
214Doc. 64 at 2.
215See Kearney, 175 F.3d at 1095-96; Thomas, 228 F.3d at 994 (“As in Kearney, the
district court should have reviewed Thomas’ claim de novo.”); O’Neal v. Life Ins. Co. of N. Am.,
10 F. Supp. 3d 1132, 1135 (D. Mont. 2014). But see Tapley v. Locals 302 & 612 of Int’l Union
of Operating Engineers-Employers Const. Indus. Ret. Plan, 728 F.3d 1134, 1139 (9th Cir. 2013)
(the district court conducted a trial on the record despite the fact that the abuse of discretion
standard of review applied). Because the Ninth Circuit did not address the propriety of the
district court’s procedural choice on appeal and, in any event, reversed the court’s judgment,
Tapley is not binding authority on this issue. Id. at 1139-43.
216Kearney, 175 F.3d at 1095.
217185 F.3d 939, 942-43 (9th Cir. 1999) (overruled on other grounds by Abatie, 458 F.3d
at 965).
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cases where the abuse of discretion standard applies, whether the administrator
abused its discretion is a question of law, not fact, based on a review of the
administrative record, as opposed to a trial.218 Because a motion for summary
judgment is “the conduit to bring [that] legal question before the district court,”219
Mason’s motion for a post-trial judgment under Rule 52 will be denied.
C. Summary Judgment Principles Have Limited Application
Because of the limited nature of review, “[t]raditional summary judgment
principles have limited application in ERISA cases governed by the abuse of discretion
standard.”220 Thus, “the usual tests of summary judgment, such as whether a genuine
dispute of material fact exists,” generally do not apply.221
IV. DISCUSSION
A. FedEx Trade Is Not a Proper Party
Defendants argue that Mason’s employer, FedEx Trade, is not a proper party to
this action because it is only a “Controlled Group Member” and “Sponsoring Employer,”
and it does not exercise any control over the plan as an administrator or otherwise.222
In Cyr v. Reliance Standard Life Ins. Co., the Ninth Circuit held that “liability under 29
U.S.C. § 1132(a)(1)(B) is not limited to a benefits plan or the plan administrator,”223 but
did not define the precise limitations of ERISA liability. In Spindex Physical Therapy v.
United Healthcare of Arizona, the court provided some guidance: “proper defendants
under § 1132(a)(1)(B) for improper denial of benefits at least include ERISA plans,
218Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009).
219Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999)
220Stephan, 697 F.3d at 929.
221Nolan, 551 F.3d at 1154.
222Doc. 59 at 16-17.
223642 F.3d 1202, 1207 (9th Cir. 2011).
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formally designated plan administrators, insurers or other entities responsible for
payment of benefits, and de facto plan administrators that improperly deny or cause
improper denial of benefits.”224
Mason responds by stating that he is not pursuing a § 1132(a) claim against
FedEx Trade, but rather a claim that arises under § 1132(c) for FedEx Trade’s violation
of 29 U.S.C. § 1024(b)(4) and 29 C.F.R. § 2560.503-1(h)(2)(iii).225 This argument fails
because, as Defendants point out, § 1132(c) actions may only be brought against plan
administrators.226 Mason does not dispute that FedEx Trade is not the Plan’s
administrator. Summary judgment will be granted in FedEx Trade’s favor.
B. Aetna Abused Its Discretion
The court finds that, based on the record that Aetna had bef ore it, Aetna abused
its discretion in denying Mason’s claim. The evidence in the record shows that Mason
suffers from a permanent disability that prevents him from working. Aetna’s conclusion
to the contrary is illogical, implausible, and not supported by the facts.
1. Evidence of Mason’s Medical Conditions
As noted above, the fundamental basis of Mason’s claim is his contention that he
can no longer work because he suffers from a combination of (1) painful spasms and
(2) the negative side effects from the medication he takes for those spasms.
a.) SPS Symptoms
There is ample objective evidence in the record showing that Mason suffers from
painful spasms, including Mason’s blood tests that came back positive for SPS and
exam notes that show Mason has been repeatedly observed suffering from symptoms
224770 F.3d 1282, 1297 (9th Cir. 2014).
225Doc. 64 at 27.
22629 U.S.C. § 1132(c) (“Any administrator . . . who fails or refuses to comply with a
request for any information which such administrator is required by this subchapter to furnish to
a participant or beneficiary . . . may in the court’s discretion be personally liable to such
participant or beneficiary . . . .”) (emphasis added).
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typical of this disease: spasms, pain, and stiffness.227 Mason’s April 27, 2011
emergency department physical exam notes, for example, state that Mason’s
extremities were stiff and he was suffering from painful spasms.228 And his May 11,
2011 emergency room notes state that Mason was observed suffering from “severe”
“whole body spasms.”229 Contrary to Aetna’s conclusion, these are “objective findings”
that substantiate Mason’s self-reported symptoms.
Inexplicably, both of Aetna’s denial notices fail to mention Mason’s positive lab
results. Aetna’s final denial notice also does not connect his spasm s with his SPS
diagnosis, stating only that the data show that Mason “had stiffness and muscle
pain.”230 Although that notice does summarize the two emergency room records
mentioned above, Aetna distorts their significance and omits reference to relevant facts
in an apparent effort to support a denial. The only aspect of Mason’s April 27
emergency department notes that Aetna mentions is that they do not “reveal any
neurological defects.”231 And with regard to Mason’s May 11 emergency department
notes, Aetna states only that they show Mason “had stiffness and muscle pain,” but his
“motor power and sensation were normal.”232 Aetna selectively ignores the objective
evidence that shows Mason was suffering from painful spasms. Selective consideration
of evidence is a hallmark of arbitrary and capricious decision-making.233
227See, e.g., Doc. 32-2 at 23, 49, 56, 163, 173.
228Id. at 36.
229Id. at 23.
230Doc. 32-1 at 1.
231Doc. 32-1 at 2.
232Id.
233See Glenn, 554 U.S. at 118 (holding that selective consideration of evidence is a
proper grounds for setting aside an administrator’s decision); Holmstrom v. Metro. Life Ins. Co.,
615 F.3d 758, 777 (7th Cir. 2010).
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b.) Medication Side Effects
Aetna does not dispute that Mason’s medications can potentially cause side
effects of sedation and cognitive impairment; it does dispute that Mason was in fact
suffering from them.234 But, again, Aetna selectively ignores evidence in the record.
Ample evidence in the record shows that Mason’s medication had a sedative
effect, including all 14 visit notes from Dr. Madden, various visit notes from other
doctors,235 notes from Dr. Kim,236 Dr. Madden,237 and Dr. Grant,238 and Combs’ email.
Aetna’s final denial letter mostly fails to mention this evidence. It does mention
Dr. Madden’s November 24, 2010 office visit note, but selectively omits Dr. Madden’s
description of Mason’s consciousness as lethargic,239 and instead focuses solely on
Dr. Madden’s other observations that do not support a disability finding.240 Aetna’s
initial denial letter concludes that there is no objective proof that Mason suffers from
234See Dr. Cohan’s report, doc. 32-2 at 266 (“Although the claimant does take
medications which have potential adverse side effects, including sedation, nevertheless there is
no objective data in the medical records provided to substantiate that the claimant has
experienced those adverse medical side effects.”).
235See Dr. Dukarm’s report, doc. 32-2 at 75 (“His affect appeared obtunded . . . . The
patient appeared lethargic . . . .”); Dr. Downs’ April 29, 2010 note, id. at 148 (“His attention span
and concentration are slightly reduced, and he appears somewhat somnolent.”); Dr. Lord’s May
5, 2010 office note, id. at 150 (physical exam describes Mason as “fatigued”); Dr. Lord’s May 7,
2010 office note, id. at 152 (same); Providence Alaska Medical Center’s January 11, 2011
emergency report, id. at 48 (“He did take diazapam and Zanaflex that has improved his
symptoms. When he initially checked in, his pain [was] 9/10. Currently, he has minimal pain
and is sleeping.”); id. at 49 (“He is sleeping upon my arrival into the room, which was about 20
minutes after presentation.”).
236Doc. 32-2 at 196, 198.
237Id. at 13.
238Id. at 121.
239Id. at 94.
240Doc. 32-1 at 1 (noting only that Dr. Madden described Mason’s mood as depressed,
his thought process as normal and coherent, his language as intact, and his speech as
spontaneous).
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somnolence because it focuses only on the notes from Dr. Kim and Dr. Grant, which,
according to Aetna, did not “document any objective findings to indicate a functional
impairment such as significant sleepiness or disorientation during office visits.”241 Not
only does this conclusion ignore the contrary evidence in the record noted above, but
also ignores an explanation for why Dr. Kim and Dr. Grant did not observe Mason’s
sleepiness. Both Dr. Madden and Dr. Kim stated that Mason did not take his
medication before his doctors’ visits so that he could be awake and alert enough to
communicate, understand, and remember what was going on.242
Dr. Dukram’s neuropsychological test is also objective evidence that Mason
suffers from a cognitive disorder. Over the course of this four-hour exam, Dr. Dukram
subjected Mason to a litany of tests,243 the results of which led him to conclude that
Mason was exhibiting “variable neurocognitive performance deficits in the areas of
executive functioning” and diagnosed him with “Cognitive Disorder, NOS.”244 Aetna’s
final denial letter does not even mention these tests. Aetna’s initial denial letter does
mention them, but only to discount their medical significance based on dubious factual
grounds245 and naked speculation that Mason might not have been putting forth his best
effort during the exam.
241Doc. 32-2 at 4.
242Id. at 13, 265.
243Id. at 75.
244Id. at 77.
245Although Aetna concludes that Dr. Dukarm did not note “significant sedation” during
testing, Dr. Dukarm described Mason as “lethargic” and his affect “obtunded.” Aetna’s
interpretation of Dr. Dukarm’s remarks is questionable.
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2. Evidence of Mason’s Disability
As Defendants point out, just because someone has a medical condition does
not by itself establish disability.246 Sometimes the person’s medical conditions are so
severe that the person cannot work, but other times “people are able to work despite
their conditions; and sometimes people work to distract themselves from their
conditions.”247 There is ample evidence here, however, that shows that the combined
effects of Mason’s conditions are severe enough to prevent him from working as a
manager for FedEx Trade.
Dr. Lord, Dr. Kim, and Dr. Grant each concluded that Mason is unable to w ork on
account of his medical conditions. Aetna’s denial notices do not consider these
significant opinions, let alone explain why these three treating physicians got it wrong.
Aetna also failed to consider Mason’s SSDI award as evidence of his disability. “Social
Security disability awards do not bind plan administrators, but they are evidence of
disability. Evidence of a Social Security award of disability benefits is of sufficient
significance that failure to address it offers support that the plan administrator's denial
was arbitrary, an abuse of discretion. Weighty evidence may ultimately be
unpersuasive, but it cannot be ignored.”248
Finally, Aetna failed to consider the only evidence in the record regarding
Mason’s actual performance at work: Combs’ email. In her email Combs states that
Mason fell asleep on the job “many times,” had difficulties focusing and remembering
things, and had become a “grave liability” for the company. Aetna’s two denial notices
completely ignore this probative evidence.
246Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir.
2004).
247Id.
248Salomaa, 642 F.3d at 679. See also Bennett v. Kemper Nat. Servs., Inc., 514 F.3d
547, 555 (6th Cir. 2008).
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Before receiving Combs’ email, Drs. Mendelssohn and Weinstein each
concluded that the side effects of Mason’s medications must not have been so bad
because he was still able to work.249 But, when Aetna presented Combs’ email to
Drs. Mendelssohn and Weinstein, showing otherwise, each doctor’s opinion remained
the same. Dr. Mendelssohn dismisses Combs’ description of Mason’s troubles at work
as not credible for dubious reasons, including her incorrect findings that the record
contained “no indication that [Mason] was falling asleep during his office visits”250 and
that there were no medical findings that Mason suffers from “overt cognitive
difficulties.”251 Dr. Weinstein’s second report is even less defensible. After providing
Dr. Weinstein with Combs’ email, Aetna asked her whether “the clinical data correlate[s]
with the symptoms exhibited at work to support an inability to perform his job
functions.”252 It appears that Dr. Weinstein did not even read Combs’ email because
her response begins: “It is not clear what symptoms were exhibited at work . . . .”253
Instead of asking Dr. Weinstein to clarify her answer, as it did with Dr. Gordon, Aetna
simply accepted her response.
249Doc. 32-2 at 245 (Dr. Mendelssohn’s first report states, “It was opined [on
Dr. Dukarm’s report] that the claimant’s cognitive difficulties were multifactorial in nature
secondary to medications, pain, sleep disturbance, and depression. However, it is important to
note that the claimant continued to work despite findings from this evaluation.”); id. at 255-56
(Dr. Weinstein’s first report discounts Mason’s SPS symptoms because he had been suffering
from them “for over 15 years and this has not precluded him from working.” It also discounts
Dr. Dukarm’s findings because, “[d]espite the fact that this study was done on 9/27/10, it
appears the claimant was still able to perform his own occupation with the first date of absence
being listed as 11/10/10.”).
250Id. at 250.
251Id.
252Id. at 260.
253Id.
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V. CONCLUSION
For the reasons set forth above, Plaintiff’s motion at docket 55 for judgment
pursuant to Rule 52 is DENIED. Summary judgment is GRANTED in favor of FedEx
Trade Networks Transport & Brokerage, Inc. In all other respects, Plaintiff’s motion for
partial summary judgment at docket 55 is GRANTED, and Defendants’ cross-motion for
partial summary judgment at docket 57 is DENIED. Defendants are hereby ORDERED
to grant Plaintiff’s claim for short-term disability benefits.
DATED this 22nd day of February 2016.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
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