United States District Court, Western District of Pennsylvania
Mark R Hornak Judge
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN Chief U.S. Magistrate Judge
It is respectfully recommended that Plaintiff’s Motion for Summary Judgment (ECF No. 21) be granted in part and denied in part. It is recommended that Plaintiff’s Motion for Summary Judgment be denied to the extent it seeks reversal and retroactive reinstatement of his long-term disability benefits, and be granted in all other respects. It is further recommended that Defendant’s Motion for Summary Judgment (ECF No. 22) be denied. It is further recommended that Aetna’s decision to terminate Plaintiff’s long-term disability benefits be vacated and the case remanded to the plan administrator for further consideration in light of this Report and Recommendation.
Currently before the Court for disposition are cross-motions for summary judgment in this ERISA action brought under 29 U.S.C. § 1l32(a)(1)(B) for review of a termination of long- term disability benefits. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1331 and 29 U.S.C. §1132(e). Venue in this District is proper pursuant to 28 U.S.C. §§1391(b)(1) & (c)(2).
A. STATEMENT OF RELEVANT FACTS
Plaintiff, Jason Berkoben, was employed by Dell, Inc. as a computer programmer. As an employee of Dell, Berkoben was a participant in a long-term disability plan (“Plan”), which was insured by an insurance policy (“Policy”) issued to Dell by Defendant, Aetna Life Insurance Company (“Aetna”). The Plan grants Aetna 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.” (Berkoben Policy 074.) The Policy and Plan further provide that Aetna “shall be deemed to have properly exercised such authority unless we abuse our discretion by acting arbitrarily and capriciously.” Id. Aetna also reserved the “right to adopt reasonable policies, procedures, rules, and interpretations of this Policy to promote orderly and efficient administration.” Id.
Berkoben commenced employment with Dell on or about May 2, 2007, and at all material times, was a covered beneficiary under the Plan. On or about March 3, 2010, Berkoben ceased working due to Schizoaffective Disorder and Bipolar Disorder. (LTD 36-37, 322.) His treating psychiatrist at the time, Dr. Lekhwani, recommended that he stay home from work due to a “psychiatric illness.” (STD 170.) Berkoben informed Dell that his “illness is mental in nature.” (STD 166.)
On July 15, 2010, Aetna notified Berkoben about the 24 month limitation on LTD benefits for mental illness. (LTD 18.)
Berkoben was initially approved for short term disability benefits for 180 days, and beginning on August 29, 2010, his claim for long-term disability (LTD) benefits was approved by Aetna. Dell’s Group Long Term Disability Plan provides for payment of 60% of an employee’s salary in the event of total disability, less offsets, including any Social Security benefits paid. On August 29, 2010, Berkoben began receiving from Aetna monthly LTD benefits in the amount of $3, 230.00. On or about December 8, 2010, Berkoben was notified that he was approved for Social Security Disability Indemnity (“SSDI”) benefits. Following receipt of the SSDI award, Berkoben’s LTD benefits were offset by his SSDI benefits, and he received $2, 080 in monthly LTD benefits from Aetna.
From August 2010 until June of 2012, Berkoben’s treating psychiatrist, Mary Galonski, M.D., provided Aetna with multiple Behavioral Health Clinical Statements, contemporaneous office notes and disability forms, in which she consistently opined that Berkoben was unable to work due to Schizoaffective Disorder. (LTD 343-44, 350-51, 366-68, 369-71, 380-82, 403-05.) Aetna has never questioned that Berkoben suffers from Schizoaffective Disorder.
Throughout this time period, Berkoben’s treatment consisted exclusively of medication management and individual psychotherapy. (LTD 145, 152, 155, 161-62, 171-72, 320-23, 326-29, 330-33, 337-42, 344, 346-48, 351-55, 376-79, 382, 405, 651, 658.) Medical records regularly refer to Berkoben as being treated for “schizoaffective disorder, ” “unspecified psychosis, ” and “observation of other suspected mental condition” with ICD-9 code numbers of 295.7, 298.9 and V71.09, respectively. (LTD 170, 321-22, 327, 331-32, 341, 347, 353, 357, 360, 363, 373, 377, 390, 396, 400, 597.) Also during this period, Berkoben was taking prescription anti-psychotic and mood stabilizing medications, including Abilify, Lithium, Risperdal and Zyprexa to control his symptoms of schizoaffective disorder (LTD 321, 327, 331, 340, 347, 353, 356, 362, 372, 376, 389, 395, 399), although at times he was not compliant with his medication as prescribed (LTD 321, 362, 396, 399). He also took Prilosec and was prescribe Zocor to treat high cholesterol. (LTD 372.)
Berkoben’s symptoms were mental in nature, including episodes of major depression, auditory and visual hallucinations, delusions, flight of ideas, suicidal ideation, anxious and fearful thoughts, depressed mood and signs of psychosis and mania. (LTD 320, 389-402.) The only physical diagnoses indicated in the treatment notes or on physician statements completed for Aetna included GERD, high cholesterol, and pneumonia. (LTD 322, 332.) Berkoben confirmed that his disability was only due to his mental nervous diagnosis. (LTD 162.) He stated that his obstacles to returning to work consisted of “mental issues” and maintained that he had no physical impairments accompanying his mental illness. (LTD 129, 145.)
On March 2, 2012, Aetna again notified Berkoben of the impending 24 month limitation period for mental health conditions and informed him that the claim would be closed effective August 28, 2012. (LTD 292.)
Although Berkoben notified Aetna on May 14, 2014 that he had recently had a brain MRI and intended to forward it for review (LTD 172-73), the MRI had nothing to do with his schizoaffective or bipolar disorders, but rather, was prescribed for a problem he was having with black outs, and therefore, Berkoben never forwarded the MRI to Aetna. To date, Berkoben has not produced any diagnostic studies, clinical findings, or other medical evidence showing that he personally suffers from “demonstrable, structural brain damage.” Dr. Galonski’s May 20, 2012 treatment note indicates that Berkoben would be required to show brain damage in order to continue to receive benefits (LTD 394),  and on June 6, 2012, Dr. Galonski stated that Berkoben had “no physical problems” (LTD 399).
On June 14, 2012, Berkoben’s counsel submitted a representation and Intent to Appeal letter to Aetna, challenging the applicability of the 24 month mental health limitation and requesting a copy of the entire claims file. (LTD 579-82.) On July 9, 2012, Aetna consulted Dr. Elena Mendelssen, M.D., for clarification as to whether Berkoben’s condition fell within the 24-month limitation period. (LTD 193.) Dr. Mendelssen opined that Berkoben’s diagnosis of schizoaffective disorder did not appear on Aetna’s Mental Nervous Limitations and Exclusions List, and therefore, was not excluded from the 24-month mental illness limitation. (LTC 193, 781-782.) Jeffrey Burdick, LCSW, from Aetna’s Behavioral Heal Unit, reviewed this information and agreed with Dr. Mendelssen that Berkoben’s diagnosis of schizoaffective disorder, ICD-0 code no. 295.7, did not appear on Aetna’s Mental nervous Limitations and Exclusions List, and that the 24-month mental illness limitations applied. (LTD 186, 199.)
On July 10, 2012, Aetna sent a letter to Berkoben’s counsel, informing him that Berkoben’s LTD benefits were being terminated effective 8/28/12 (“termination letter”):
A view of your file shows you became disabled on 3/2/2010. Your entitlement for LTD benefit (sic) began on 8/29/10, and we find you disabled thru 8/28/2012, the maximum 24 months end of benefit [ ] date, as described in the above contractual provision. The diagnosis of Schizoaffective Disorder is considered a mental health or psychiatric condition and therefore has 24 month max benefit duration. You will not be eligible for benefits beyond 8/28/2012.
(LTD 302.) In its termination letter, Aetna also advised Berkoben of his right to appeal and to submit additional information, including but not limited to, a detailed narrative report beginning 8/28/2012 through present; physician’s prognosis; proof of confinement as an inpatient in a hospital or treatment facility; diagnostic studies; clinical findings; and any other relevant information or documentation specific to his schizoaffective disorder. (LTD 302.) Aetna also distinguished Berkoben’s SSDI award based upon the difference in standard, lack of an explanation of the decision or information upon which it was based, and therefore, it was unable to give the SSDI award significant weight. (LTD 302.)
Berkoben’s Administrative Appeal
By letter dated September 20, 2012, Berkoben appealed Aetna’s termination of his LTD benefits. (LTD 297-99.) Inasmuch as Aetna was not contesting Berkoben’s disability status, the sole issue on appeal was whether Berkoben’s disability, i.e., Schizoaffective Disorder, fell outside the Plan’s 24 month limitation for a mental health disability. Berkoben attached to his appeal medical literature and documentation, including a narrative summary from Dr. Galonski, to support his position that Schizoaffective Disorder and Bipolar Disorder are biological diseases of the brain, and thus fall outside Aetna’s 24 month mental health limitation under the Plan. (LTD 457-566.) He did not provide Aetna with any diagnostic studies, clinical findings, or other medical evidence showing the he had demonstrable, structural brain damage.
In considering Berkoben’s appeal, Aetna forwarded his file for further review to independent physicians specializing in Physical Medicine and Psychiatry. (LTD 296.) In particular, Aetna had the claims file reviewed by Stephen Gerson, M.D., board certified in psychiatry, on October 31, 2012, and Stuart Rubin, board certified in physical medicine, on October 25, 2012. (LTD 307-311, 314-316.) Aetna also requested a peer-to-peer telephonic consultation with Dr. Galonski, which was conducted by Dr. Rubin on October 11, 2012. Berkoben LTD File 000296. Aetna also noted that the medical records submitted for its review indicated that Berkoben was receiving treatment for Schizoaffective Disorder and Bipolar Disorder, and Dr. Galonski observed that he appeared aware of his delusions and was struggling against them, was withdrawn and exhibited destructive thoughts towards his neighbors, and showed indications of cognitive issues. Id.
Aetna denied Berkoben’s appeal by letter dated November 2, 2012 (“final denial letter”), in which the following explanation is provided by the senior appeal specialist for Aetna:
In your appeal request letter, submitted on behalf of your client, you provide your opinion that Mr. Berkoben’s LTD benefits should not be subject to the 24 month maximum benefits, because his disabling condition [is] biological and not mental nervous condition. We agree that there is emerging clinical evidence that the conditions of schizophrenia and bipolar illness have a biological basis. However, the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association still classifies these conditions as mental nervous conditions.
Based upon our review of the information you provided, and as explained in more detail above, we have determined that Mr. Berkoben’s conditions continue to be classified as mental nervous conditions, as of March 2, 2010 and August 29, 2012. Therefore, the original decision to terminate your client’s LTD benefits, due to the policy maximum, effective August 29, 2012, has been upheld. . . .
Berkoben exhausted the administrative remedies provided by the Plan. He then instituted the present action against Aetna on November 15, 2012 under Section 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §1132(a)(1)(B), seeking LTD benefits from the Plan. The Court ordered the parties to file cross motions for summary judgment, along with a certified copy of the administrative record. The parties have complied and thus, the motions are ripe for review.
B. STANDARD OF REVIEW-CROSS-MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa. 2006). “When confronted with cross-motions for summary judgment, . . . ‘the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.’” Id. (quoting Mar ciniak v. Prudential Fin. Ins. Co. of Am., No. 05-4456, 184 Fed.Appx. 266, 270 (3d Cir. June 21, 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).
C. RELEVANT PLAN LANGUAGE
The Plan provides in relevant part:
Test of Disability
After the first 24 months of your disability that monthly benefits are payable, you meet the plan’s test of disability on any day 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 conditions.
(Berkoben Policy 85) (emphasis in original). The Plan further provides:
Limitations Which Apply to Long Term Disability Coverage You will no longer be considered as disabled and eligible for long term monthly benefits after benefits have been payable for 24 months if it is determined that your disability is primarily caused by:
• A mental health or psychiatric condition, including physical manifestations of these conditions, but excluding conditions with demonstrable, structural brain damage; or
• Alcohol and/or drug abuse.
(Berkoben Policy 87) (emphasis in original).
D. MEDICAL EVIDENCE & OTHER DOCUMENTS CONSIDERED BY AETNA ON APPEAL
1. Report of Dr. Mary Galonski
In support of his appeal of the termination of his LTD benefits, Plaintiff submitted a letter dated September 5, 2012 to Aetna from his treating psychiatrist, Dr. Mary Galonski, M.D., who opines that “it is widely accepted within the medical community that schizophrenia and bipolar disorder, which are both present in Jason’s case, are biological diseases of the brain.” (LTD 458.) In support of her conclusion, Dr. Galonski observes that Plaintiff has been receiving treatment at the Family Counseling Center since March of 2010, where she sees him on a monthly basis. (LTD 457.) She further notes that Plaintiff “has diagnosis of schizoaffective disorder which is a condition where a person has all the criteria for schizophrenia as well as episodes meeting criteria for a mood disorder-in Jason’s case that of a bipolar disorder.” Id.
Dr. Galonski further notes Plaintiff still exhibits symptoms consisting of visual and auditory hallucinations, paranoia ideas of reference, sleep disturbance, energy fluctuations with periods of very high energy alternating with low energy periodically[;] . . . periods of taking on many projects simultaneously but being frustrated in not being able to concentrate to complete them effectively[;] . . . intermittent[ ] . . . suicidal and homicidal thoughts and still struggles regularly with anger and rage.
Id. Dr. Galonski also reported that Plaintiff “still is very impaired by his symptoms and periodically has to stay at home or leave a setting such as a store when his anger is flaring up or when delusional thoughts are strong.” Id. With regard to his schizoaffective disorder, Dr. Galonski opines that Plaintiff “meets the DSM IV criteria for schizophrenia with his hallucinations and delusion being present as well as them resulting in significant social and occupational dysfunction and having duration of at least 6 months. These have been present even when his mood is stable. He also [meets] criteria for a mixed Bipolar illness with symptoms of mania & depression at the same time.” (LTD 457-458.)
In addition, Dr. Galonski reported that Plaintiff has tried a number of prescription medicines to treat his conditions, including Zyprexa, which game him some improvement in psychotic symptoms while not completely alleviating them, but gave him unacceptable fatigue and weight gain; Lithium and Risperdal, which were of limited benefit; and Abilify, which actually 8heightened his anger. (LTD 457.) Dr. Galonski then discusses the results of research on the relationship between schizophrenia and brain damage:
Much research has shown that brain scans of schizophrenics show results consistent with brain damage and dopamine over activity. In over 100 studies, Computerized axial tomography or CAT scans and magnetic resonance imaging or MRI scans show much larger ventricles in the brains of schizophrenics compared to controls which suggest diffuse neuronal damage and loss of cells. Positron emission tomography or PET scans show that brin metabolic activitiy in a psychotic episode is lower than that of controls. They also have shown that schizophrenics have more D2 receptors in their brain than controls. Accumulating evidence from such studies suggest that psychosis, such as seen in schizophrenia, is associated with neuropathology of the frontal and temporal systems at both the gross anatomical and also the neuronal ...