NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 15a0579n.06
Case No. 14-2445
FILED
UNITED STATES COURT OF APPEALS Aug 14, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MELISSA McKENNA, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
) MICHIGAN
v. )
)
)
)
AETNA LIFE INS. CO., et al., ) OPINION
)
Defendants-Appellees. )
Before: CLAY and SUTTON, Circuit Judges; and WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Melissa McKenna (“Appellant”) appeals the
judgment of the district court affirming the partial denial of long-term disability (“LTD”)
benefits in this case brought under the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001, et seq. (“ERISA”). For the following reasons, we REVERSE the judgment of
the district court.
I. FACTS
Appellant worked for Dow Corning Corporation (“Dow Corning”) as an administrative
assistant in the legal department. Aetna Life Insurance Company (“Aetna”) provided group LTD
coverage to Dow Corning employees.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
Case No. 14–2445, McKenna v. Aetna
The plan under which Appellant was covered (“Plan”) provides for disability benefits
after a 180-day elimination period. The Plan employs an “own occupation” standard for the first
twenty-four months of LTD benefits: benefits are available if the employee cannot perform the
material duties of his or her own occupation. (AR 1169). The Plan defines both “material
duties” and “own occupation,” but those provisions are not at issue here, as Aetna found
Appellant was unable to perform the material duties of her own occupation for a portion of the
period for which she applied for benefits and, accordingly, granted Appellant LTD benefits from
September 25, 2012 through February 23, 2013. We need not determine de novo whether her
impairments prevented Appellant from performing the material duties of her own occupation
during the grant period, as no party appealed that determination. Rather, our task is to determine
only whether the evidence showed that Appellant remained disabled beyond February 23, 2013.
The medical evidence shows that Appellant has suffered from lower back pain for years.
Specifically, a June 2010 MRI revealed a disc bulge with central protrusion at L3-L4 and L4-L5
with facet hypertrophy and mild spinal canal narrowing. (AR 970). There was no significant
foraminal narrowing at L3-L4, but there was mild bilateral foraminal narrowing at L4-L5. (AR
970).
Despite these problems, Appellant continued working until March 28, 2012, when she
was admitted to the hospital with a pain level of 9/10. Appellant was discharged two days later
but admitted to the hospital again on April 1, 2012 due to back pain and migraines. (AR 900).
Appellant reported a pain level of 8/10 with nausea and vomiting and remained in the hospital
for six days. (Id.). During that stay, Appellant underwent additional testing, which revealed
stable degenerative changes of the lumbar spine. (AR 847). Upon discharge, Appellant
continued to report back pain and continued treating with her primary care physician.
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Appellant then underwent additional testing to discover the cause of her symptoms. On
May 11, 2012, a thoracic spine MRI revealed mild degenerative changes in the mid-thoracic
spine with “posterior disk protrusions or bulging disk” and possible bony spurring with mild disc
space narrowing. (AR 974, 1127–28).
On June 14, 2012, she presented to the Matrix Pain Management Clinic where she
reported pain at a severity level of 6–7/10, an average and best-day level of pain at 5–6/10, and a
worst-day pain level of 9–10/10. (AR 1158). She did, however, note that the pain did not limit
her activities. (AR 1158). She exhibited lumbar tenderness, facet tenderness, and some painful
range of motion. (AR 1159–60). Notably, the rendering provider stated that, at that time,
Appellant did not exhibit radicular symptoms. (AR 1160).
In an attempt to manage the pain, Appellant received surgical injections on June 19, July
3, and July 17, 2012. (AR 1148–50). Dr. Mark Adams (“Dr. Adams”), the neurosurgeon to
whom Appellant was eventually referred, later noted that these injections failed to relieve
Appellant’s “disabling pain.” (AR 974); see also (AR 1141).
Appellant was referred to physical therapy on July 9, 2012 in another attempt to relieve
her persistent pain. (AR 190). At Appellant’s initial appointment, a physical therapy provider
documented her reports of severe low back pain at a level of 7–8/10 and that her symptoms
worsened with sitting and standing but improved when lying down. (AR 922).1 Due to issues
with her son’s health, Appellant missed multiple physical therapy appointments; she saw little
progress. (AR 283).
1
The date of Appellant’s initial physical therapy appointment is unclear. The appointment notes
list two dates at the beginning of the document, July 23, 2012 and August 4, 2012, and each page
of the notes includes a time stamp dated December 18, 2012. (AR 921–923). There is also a
separate initial physical therapy evaluation dated in late September or early October of 2012.
(AR 277–278).
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Case No. 14–2445, McKenna v. Aetna
Notes from the Matrix Pain Management Clinic in July 2012 state that by the end of that
month, Appellant was still experiencing pain at a level of 7–8/10, that the injections had not
provided relief, that the prescribed Morphine Sulphate and Vicodin dulled the pain but did not
totally relieve it, that she still had lumbar and facet tenderness, and that she continued to need
heavy pain medication. (AR 1154–56).
Appellant’s primary care physician also referred her to a rheumatologist in an attempt to
determine the origin of her lower back pain. (AR 1141). The notes from rheumatologist Dr.
Weaver indicate that as of July 31, 2012, Appellant suffered from spasms, experienced pain on a
scale of 8–9/10, and felt increased pain with standing, which was somewhat relieved when lying
down. Id. She presented with tenderness over the low lumbar spine but had a negative straight-
leg test. (AR 1143). Dr. Weaver opined that Appellant suffered from fibromyalgia or a
myofascial problem with pain amplification and recommended increasing her level of physical
fitness and completing physical therapy. (Id.).
Eventually, Appellant was referred to her neurosurgeon, Dr. Adams. Dr. Adams first
examined Appellant on August 23, 2012, noting an impression of lumbar disc herniation with
radiculopathy, headache, and low back pain. (AR 1145). Based on this examination, Dr. Adams
completed an attending physician statement (“APS”), opining that Appellant could not return to
work until after February 23, 2013. (AR 264). Dr. Adams additionally limited her to no
bending, twisting, pushing, pulling, or lifting more than ten pounds based on her L3-4 and L4-5
disc collapse, annular tears, and headaches and further noted that Appellant was a possible
candidate for a lumbar fusion. (AR 263–64).
In September 2012, Appellant saw Dr. Blake Bergeon, physical medicine and
rehabilitation, who opined that she suffered from chronic pain syndrome. (AR 270). He
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Case No. 14–2445, McKenna v. Aetna
suspected myofascial pain and noted a moderate degree of degenerative disc change at L3-4 and
L4-5 but did not believe the degenerative disc change would explain all of Appellant’s
symptoms. (Id.) He further stated that Appellant was developing an advanced state of
deconditioning and muscle atrophy. (Id.)
Appellant submitted a claim for LTD benefits when the elimination period expired, and
Aetna denied her claim on October 10, 2012 based on a reviewing nurse’s opinion that the
medical records would not support an “inability to sit, stand, walk, bend, use upper or lower
extremities, etc. to perform work duties.” (AR 29). Aetna explained that the medical records did
not support any impairment with respect to Appellant’s upper extremities and that Dr. Adams’s
supporting letter provided no objective medical findings to support the restrictions he placed on
Appellant.
Appellant continued treatment. She saw Dr. Adams on October 22, 2012, reporting that
she continued to experience back pain—which had increased since physical therapy—and that
her pain medications merely dulled the pain. (AR 871). Dr. Adams’s office notes from that
appointment state that Appellant was severely limited by the pain, which she reported at a level
four, and note the possibility of undergoing additional testing and exploring the option of
surgery. (AR 873).
Appellant underwent another lumbar spine MRI on October 31, 2012, which revealed
stable degenerative changes of the lumbar spine with a mild diffusely bulging disc at the T10-11
disc level and disc space narrowing, disc desiccation, and bulging discs at the L3-L4 and L4-5
disc levels. (AR 617, 974).
Dr. Adams then ordered a lumbar discogram in late November of 2012. The lumbar
discogram revealed an abnormal L5-S1 and the suggestion of an abnormal disc at L4-L5. (AR
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Case No. 14–2445, McKenna v. Aetna
973). He ordered a post-discogram CT scan, which revealed an annular tear or degeneration of
the L3-L4 disc, a diffuse bulging disc at L3-L4, a central annular tear at L4-L5, and likely disc
degeneration at L5-S1. (AR 324, 975).2
On December 3, 2012, Appellant presented to Dr. Adams for a follow-up visit, reporting
continued pain in her lower back and extending into her left buttocks, occasional pain in the
middle of her back, and occasional numbness and tingling in her left leg that severely limited her
movements. (AR 315–316). She reported a pain score of 4/10 and indicated that it worsened
with sitting, standing, walking, and lying. (AR 315). Appellant had a positive straight-leg test
during that visit, the strength in her lower extremities in all areas innervated by L2 through S1
was diminished, and she had a slow gait. (AR 316). Dr. Adams’s impression included lumbar
disc herniation with radiculopathy as well as lumbago and spinal stenosis in the lumbar region
with neurogenic claudication. He opined that she was “severely effected [sic] with pain that
limits her activity” and may require surgery. (AR 316–317). Dr. Adams stated that he provided
Appellant information about the surgery and planned to await her decision and follow up with
her in three months—in March 2013. (AR 317).
In March 2013, before her follow-up appointment with Dr. Adams, Appellant appealed
the initial denial of LTD benefits. (AR 318). She submitted additional medical records,
including the October and November 2013 test results. Appellant also submitted with her appeal
a statement by Dr. Adams, wherein he determined that based on Appellant’s subjective
symptoms and the objective tests results, as well as a positive straight-leg raise test, Appellant
had functional limitations related to moving, including sitting, standing, and walking, and that
2
While the record does not include documentation of the actual post-discogram CT results, a
discussion of the results is found in Appellant’s appeal letter to Aetna, (AR 324), and Dr.
Adams’s signed statement, (AR 975).
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Case No. 14–2445, McKenna v. Aetna
she could not lift anything greater than ten pounds. (AR 975). He further opined that Appellant
could not return to work without causing further damage to her spine, including the possibility of
permanent nerve damage and paralysis. (AR 975). Appellant also submitted her own statement.
While the appeal was pending, Appellant attended her follow-up appointment with Dr.
Adams on March 11, 2013. The office notes from that visit state that Appellant complained of
constant sharp, stabbing, and aching low back pain at a pain level of 3/10, which worsened when
standing and walking and improved when sitting and lying, that her straight-leg raise was more
positive on the left, that there was no muscle wasting, and that she had a steady and even gait.
(AR 209–210). The impression was still lumbar disc herniation with radiculopathy, and Dr.
Adams’s opinion remained that Appellant was disabled with pain and may require surgery. (AR
211). He planned to follow up with Appellant in another three months. (Id.) Appellant
submitted those notes on appeal as well.
In May 2013, Aetna approved in part and denied in part Appellant’s claim. Specifically,
Aetna granted benefits from September 25, 2012 through February 23, 2013. Aetna’s entire
explanation for denying benefits beyond February 23, 2013 is as follows:
Our review has found that Ms. McKenna’s physicain [sic] were [sic] able to
provide specific abnormal examination findings up until December 2012. These
findings included lumbar tenderness on palpitation, facetogenic pain, abnormal
gait, painful range of motion, which cause her to be unable to sit for prolonged
periods of time. Our medical review determined that with these specific abnormal
findings from her treating providers, Ms. McKenna’s impairments [that] were
noted in Dr. Adams’s note of December 3, 2012, would reasonably take take [sic]
two-and-a-half months, or until February 23, 2013, for recovery. However, the
records provide no evidence of significant impairment beyond this period, or as of
February 24, 2013, Dr. Adams’s [sic] submitted his note, dated March 11, 2013,
that she had continued pain; however, she had a steady gait, and no loss of
strength. It was his recommendation as of that date, that she should follow-up in
another three months.
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Case No. 14–2445, McKenna v. Aetna
(AR 191). This determination relied on the conclusions of Aetna’s file reviewer, Dr. Stuart
Rubin, a physician board certified in Physical Medicine and Rehabilitation and Pain
Management. (AR 189–191). Indeed, Aetna’s decision essentially mirrored Dr. Rubin’s report,
which stated:
Functional impairment is supported from 3/29/12 through 2/23/13[.] These
functional impairments include recent hospitalization for bilateral flank pain from
4/1/12 through at least 4/5/12, lumbar tenderness, facetogenic pain, abnormal gait,
painful range of motion, inability to sit for extended periods of time. Such
abnormal findings are noted through 12/3/12 and it is reasonable that these
findings will continue another two-and-a-half months through 2/23/13 [as] a
chronic pattern has been established.
Functional impairment is not supported from 2/24/13 through 5/14/13. Although
it is noted in the note of 3/11/13 that the claimant had some increased back pain
and she had a positive straight leg raise on the left, it is noted the claimant had a
steady and even gait and it was noted the claimant had lumbar disk herniation
with radiculopathy. However, it is unclear why the claimant remains disabled
with pain as per the note of Dr. Adams on 3/11/13. It is unclear why the claimant
is unable to work in the sedentary position from 2/24/13 through 5/14/13.
(AR 207).
Despite the determination being marked as a final decision, Dr. Adams submitted
additional records to Aetna in June and July 2013. (AR 172, 178). Appellees did not change
their disability determination, and Appellant eventually filed suit in the Eastern District of
Michigan. Appellant alleged that Aetna and Dow Corning breached the terms of the Plan by
denying her claim for LTD benefits beyond February 23, 2013. The district court affirmed the
denial of benefits. (RE 4–5).
II. STANDARD OF REVIEW
“[B]oth the district court and this court review de novo the plan administrator’s denial of
ERISA benefits, unless the benefit plan gives the plan administrator discretionary authority to
determine eligibility for benefits or to construe the terms of the plan.” Wilkins v. Baptist
8
Case No. 14–2445, McKenna v. Aetna
Healthcare Sys. Inc., 150 F.3d 609, 613 (6th Cir. 1998) (citation omitted). As neither party
argues the plan administrator had discretionary authority with respect to interpretation of the
Plan, we review this case de novo.3
Our role on de novo review is to determine whether Aetna “made a correct decision.”
Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 1990). In other words, we consider
whether Aetna properly interpreted the Plan and whether Appellant was entitled to benefits under
the Plan, and in doing so, we do not provide deference or a presumption of correctness to
Aetna’s decision. Id.
Our review is limited to only the administrative record as it existed when the final
decision was rendered. Judge v. Metro. Life Ins. Co., 710 F.3d 651, 658 (6th Cir. 2013) (“[W]e
‘are required to consider only the facts known to the plan administrator’ at the time of the
decision.”) (citation omitted). Accordingly, we will consider only the information submitted
before Aetna’s May 28, 2013 final decision on appeal.
III. ANALYSIS
As explained above, Aetna ultimately approved Appellant’s claim for LTD benefits from
September 25, 2012 through February 23, 2013 but denied her claim for benefits for any period
thereafter. Thus, our review is limited to determining, de novo, whether Appellant was entitled
to benefits beyond February 23, 2013.
3
The district court identified the de novo standard as the proper standard of review, but it does
not appear to have applied that standard. Rather, the court appears to have treated Aetna’s
decision as requiring deference, analyzing primarily whether Aetna’s reliance on a non-
examining physician’s opinion was permissible and whether Aetna provided an explanation for
its disagreement with Dr. Adams’s conclusion that Plaintiff was disabled. On de novo review,
the issue is not whether the administrator was allowed to rely on a file review or whether it
provided an adequate explanation for its decision. Rather, the appropriate inquiry is whether the
denial of benefits was correct given the medical evidence in the record. See Perry v. Simplicity
Eng’g, 900 F.2d 963, 966 (6th Cir. 1990).
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Case No. 14–2445, McKenna v. Aetna
Dr. Rubin opined that Appellant’s pain should resolve by that date, and Aetna relied on
that opinion in its determination. Appellant argues we should give little weight to Dr. Rubin’s
opinion because, inter alia, he conducted only a file review despite the fact that Aetna retained
the right to conduct a physical examination of Appellant.
As Appellant concedes, there is “nothing inherently improper with relying on a file
review, even one that disagrees with the conclusions of a treating physician.” Calvert v. Firstar
Fin., Inc., 409 F.3d 286, 297 n.6 (6th Cir. 2005). Rather, whether Aetna relied on a file review
as opposed to a physical examination of Appellant is just one factor courts consider in
determining whether a plan administrator was arbitrary and capricious and “may, in some cases,
raise questions about the thoroughness and accuracy of the benefits determination.” Id. at 295.
While we do not apply an arbitrary and capricious standard of review in this case, we find the
case law similarly applicable to our de novo review. James v. Liberty Life Assurance Co. of
Boston, 582 F. App’x 581, 586 n.1 (6th Cir. 2014) (citation omitted). Accordingly, when
determining whether Aetna properly denied LTD benefits beyond February 23, 2013, we will
weigh Dr. Rubin’s report, considering the fact that he did not conduct a physical examination,
while keeping in mind that there is nothing inherently improper with relying on a file review.
Upon de novo review, we give little weight to Dr. Rubin’s conclusion that Appellant
could return to work on February 24, 2013. Dr. Rubin fails to explain the basis for his opinion
that Appellant’s condition and symptoms—which he agreed both prevented her from performing
the material duties of her occupation and had exhibited a chronic pattern—would continue only
through February 23, 2013. Based on the record, we must guess that this estimated “recovery
date” came from Dr. Adams’s August APS.
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Case No. 14–2445, McKenna v. Aetna
The APS, however, must be viewed in context. The administrative record shows
Appellant was hospitalized with flank pain in March and April 2012 but that, despite numerous
tests and referrals, the cause of her pain was not initially established. Instead, Appellant was
simply attempting to manage the pain with the use of heavy narcotics. It was during this period,
however, when Dr. Adams, just after his initial consultation with Appellant, submitted the APS
in which he opined that she would be able to return to work on February 24, 2013. Dr. Adams
did not know the etiology of Appellant’s pain at that time, and, moreover, Dr. Adams provided
no explanation for his initial opinion that Appellant would be able to return to work on February
24, 2013.
The medical evidence shows that it was not until October and November 2012, months
after Dr. Adams initially opined Appellant would recover by February 23, 2013, that an MRI,
discogram, and post-discogram CT scan showed that Appellant had: a diffuse bulging disc at
T10-11, disc space narrowing and disc desiccation at both the L3-4 and L4-5 discs with bulging
discs at both levels, abnormal discs at L4-5 and L5-S1, an annular tear or degeneration of the L3-
L4 disc, a central annular tear at L4-L5, compression of the thecal sac, and disc degeneration of
L5-S1. (AR 973–75). After those tests, Dr. Adams opined that Appellant was “severely affected
with pain,” still had lumbar disc herniation with radiculopathy, that she would ultimately require
a posterior lumbar intervertebral fusion due to her collapsed discs with annular tears, and that a
return to work could cause permanent nerve damage or paralysis. (AR 975). Never after August
2012 did Dr. Adams opine that Appellant would be able to return to work as of February 24,
2013. Indeed, at both of her follow-up appointments in December 2012 and March 2013, Dr.
Adams noted that although no new tests were performed, Appellant still had a positive straight-
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leg test, and at both visits he opined that Appellant was still disabled with pain and could require
surgery. (AR 210–11, 316–17).
Reviewing the evidence in context, we conclude that a fair reading of the administrative
record is that Dr. Adams’s initial opinion about Appellant’s return to work date was just that—an
initial opinion. For this reason, and because Dr. Rubin neither conducted his own physical
examination of Appellant nor offered any other explanation as to why he believed Appellant’s
condition and symptoms would continue only through February 23, 2013, we give little weight to
his opinion that her abnormal findings would be expected to continue only through that date.
Instead, we look at the entire administrative record to determine whether there was any
indication of abnormal findings or continued disability beyond February 23, 2013.
Upon review of the record, we find there is sufficient evidence that her impairment
continued beyond February 23, 2013. First, we note that Aetna’s partial finding of disability was
based on abnormal examination findings up through December 2012, including lumbar
tenderness on palpitation, facetogenic pain, abnormal gait, and painful range of motion, which
caused Appellant to be unable to sit for prolonged periods of time. With the exception of the
observation that Appellant had a steady gait on March 11, 2013, there is no evidence that any of
these abnormal findings improved by February 24, 2013. Second, there is certainly no objective
evidence of improvement of any of the bulging discs, collapsed discs, or annular tears that were
noted in the October MRI and November discogram. Third, there is no record evidence of
successful treatment, sustained pain relief, or even an examining physician opinion that her
condition had improved or that she no longer suffered from functional limitations. As such,
there is simply no record evidence suggesting that Appellant’s “chronic” condition did not
continue beyond February 23, 2013.
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To the contrary, the available evidence suggests that such abnormal findings persisted
beyond that date. As of March 11, 2013, Appellant still had lower back pain, lumbar spasms, a
positive straight-leg test, and reduced range of motion. (AR 209–10). Surgery was still a
possibility. (AR 210). Even Dr. Rubin admitted Appellant’s condition was “chronic,” and the
two most recent opinions from her treating neurosurgeon were that she continued to remain
disabled with pain into March of 2013 and that a return to work could cause permanent nerve
damage or paralysis. (AR 211, 975).
We find the fact that Appellant exhibited a steady gait and decreased pain at one
appointment does not, when viewed in context, outweigh the rest of the medical evidence, which
suggests that Appellant was no better off after February 23, 2013 than she was on or prior to that
date, when Aetna agreed she was prevented from performing the duties of her own occupation.
In sum, although it is Appellant’s burden to prove that she was entitled to LTD benefits,
she unquestionably met that burden when she proved to Aetna’s satisfaction that her condition
resulted in functional impairments that prevented her from performing the material duties of her
own occupation through February 23, 2013. Appellees fail to explain how one office note
documenting a steady and even gait and decreased pain level overcomes the remaining evidence
and the treating physician’s opinion, indicating that Appellant remained disabled beyond that
date. For this reason, we reverse the decision of the district court and remand to Aetna to
determine the scope of Appellant’s entitlement to benefits beyond February 23, 2013.4
4
Appellant also asserts that Aetna’s peer review physician was inherently biased. Appellant Br.
3. We do not consider this issue, however, as Appellant did not raise it before the district court.
See Sigmon Fuel Co. v. Tennessee Valley Auth., 754 F.2d 162, 164–65 (6th Cir. 1985).
Additionally, we note that although Appellant listed the district court’s order granting Appellee’s
motion to strike in her Notice of Appeal, she has since abandoned any challenge to that order by
failing to address it in her initial brief on appeal. See Perkins v. Twp. of Clayton, 411 F. App’x
810, 816–817 (6th Cir. 2011).
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IV. CONCLUSION
For the foregoing reasons, the decision of the district court is REVERSED.
14