Bertucci v. Aetna Life Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ELIZABETH F. BERTUCCI CIVIL ACTION

VERSUS NO. 19-10655

AETNA LIFE INSURANCE COMPANY SECTION "L" (4)

ORDER & REASONS

Pending before the Court is Plaintiff’s Motion for Summary Judgment Based on the

Administrative Record. R. Doc. 66. Defendant opposes the motion. R. Doc. 68. Plaintiff has filed

a reply. R. Doc. 69. Defendant has filed a sur-reply. R. Doc. 71. Plaintiff has also filed a sur-reply.

R. Doc. 74. Oral argument was held on Wednesday, July 22, 2020 by videoconference. Having

considered the parties’ arguments and the applicable law, the Court now rules as follows.

I. BACKGROUND

This case arises out of a dispute over the denial of long-term disability benefits to Plaintiff

Elizabeth F. Bertucci, a former Resource Manager II for Capital One Financial Corporation

(“Capital One”). At all relevant times hereto, Defendant Aetna Life Insurance Company (“Aetna”)

provided insurance coverage to Capital One under a Long-Term Disability Policy (Policy No.

GP699982) (“LTD Policy”). Aetna is named as the Claims Administrator for the LTD Policy,

which falls within the definition of an Employee Welfare Benefit Plan governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. Under ERISA, “a

person denied benefits under an employee benefit plan [may] challenge that denial in federal

court.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008) (citing 29 U.S.C. § 1001, et seq.,

29 U.S.C. § 1132(a)(1)(B)). On May 23, 2019, Bertucci filed suit against Aetna under ERISA,

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challenging its denial of her claim for long-term disability benefits and seeking to recover benefits

due under the LTD Policy. R. Doc. 1. The facts underlying the lawsuit are as follows.

Bertucci reports a decades-long history of back pain beginning in her mid to late 20s.

H0416. In March 2006, she underwent a laminectomy to remove a portion of the vertebrae at

L5/S1, which alleviated the back pain for approximately one year but caused pain to her left leg

and foot. H0416. The back pain returned after a year, prompting Bertucci to submit to a lumbar

fusion at L4/5 and L5/S1 in August 2011. H0417. Bertucci continued to suffer back pain following

the lumbar fusion, and in December 2013, the hardware was removed. H417.

On August 10, 2011, Bertucci ended her employment with Capital One based on her

medical condition, and applied for both short- and long-term disability benefits. R. Doc. 66-1 at 1.

Aetna originally denied her short-term claim but reversed the decision on appeal. Id. When

Bertucci’s short-term benefits ran out, Aetna approved her long-term claim after finding that

Bertucci meet the definition of “disability” under the plan. H0079. Specifically, the LTD Policy

defines “disability” as:

(a) In the first 24 months of certified period of disability[,] [y]ou are not able, solely

because of disease or injury, to perform the material duties of your own

occupation; however, if you start to work at a reasonable occupation, you will

no longer be deemed disabled.

(b) After the first 24 months of a certified period of disability[,] [y]ou are not able,

solely because of disease or injury, to work at any reasonable occupation.

H0003. After applying the policy’s 187-day elimination period, Aetna certified Bertucci’s

eligibility for benefits beginning on February 13, 2012. H0079. The decision letter further provided

that, pursuant to the policy’s definition of disability, if Bertucci remained disabled on February 13,

2014, she would have to demonstrate her inability to work at any reasonable occupation. H0079.

Before the two-year period ended, Aetna corresponded with Bertucci on multiple occasions to

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confirm her continuing eligibility. H0153, H0178, H0185.

On October 23, 2014, Aetna terminated Plaintiff’s long-term disability benefits, explaining

that she was no longer disabled under the terms of the policy because she could work in the

following “reasonable occupations”: securities trader, financial planner, and compliance officer,

among other roles. H0196-199. Aetna reached this decision after considering a number of medical

reports from Bertucci’s treating physicians, a peer to peer consultation performed by Dr. Robert

Cirincione, a Functional Capacity Evaluation (“FCE”), and a Vocational Review. H0197.

Specifically, Aetna explains that visit notes prepared by Bertucci’s treating physicians during

follow ups to her lumbar fusion operation generally noted that Bertucci was doing well and “would

be off work completely for proper healing.” H0196. Aetna also consulted a Peer to Peer review of

Bertucci’s medical records completed by Dr. Cirincione, in which Dr. Cirincione noted that

although Bertucci reported an inability to sit for five minutes, her “records include evaluations by

. . . medical providers that included conversations of greater than 30 minutes.” H0197. Dr.

Cirincione attempted to discuss his conclusions with treating physicians Dr. Thomas and Dr.

Zeringue, but was unable to make contact. H0197. Accordingly, Dr. Cirincione “concluded the

records do not support [Bertucci’s] subjective complaints of not being able to sit or stand for more

than five minutes.” H0197.

In its denial, Aetna also relied on an FCE performed on September 23, 2014, in which the

examiner could not determine a maximum level of function due to Bertucci’s “inconsistent and

self-limiting behavior,” but opined that Bertucci would be capable of performing sedentary full

time work. H0197. Aetna indicated that it had contacted Bertucci’s medical providers to provide

input on the Peer to Peer review and the FCE, but that no input had been provided. H0198. Based

on the limitations identified by Dr. Cirincione and the FCE, Aetna conducted a vocational review

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that identified comparable occupations it believed Bertucci could perform in light of her physical

capacity and educational requirements and denied her claim on that basis. H0198.

Bertucci appealed, arguing that Aetna’s decision was contrary to the opinions of Dr.

Thomas and Dr. Zeringue, who had not cleared her for work and had opined that she would only

be able to sit sporadically. H1351. Bertucci further suggested that Dr. Cirincione was “not an

unbiased independent medical professional,” and cited two cases in which his opinion was used in

litigation involving an insurance company’s decision to deny benefits. H1351. Further, Bertucci

alleged that Dr. Cirincione’s opinion that she could sit for extended periods of time is contrary to

her own affidavit, the conclusions of her treating physicians, and the results of her MRIs. H1352.

Lastly, Bertucci argues that the jobs Aetna identified “are all beyond Ms. Bertucci’s education,

training, and experience,” and “all require sedentary demand” which Bertucci does not have “due

to poor sitting tolerance.” H1353. Bertucci also stresses that these roles require licenses she does

not have and “exceed the level of . . . earning that she had before becoming disabled.” H1353.

In support of her appeal, Bertucci submitted her own affidavit describing the pain she

experiences and averring that “[p]rolonged sitting and standing increases my pain. The only relief

I can get it through lying down. My pain is unrelenting, distracting and affects by ability to focus.”

H1355. Bertucci also submitted a declaration of Dr. Thomas, who stated that he had reviewed the

results of the September 23, 2014 FCE, and did “not agree with the examiner’s conclusion that

Ms. Bertucci has the capacity for constant sitting during an 8 hour workday.” H1356. He

continued, “I believe that Ms. Bertucci is unable to perform work that is sedentary to light in nature

as doing so has increased her level of pain. H1356. Bertucci also submitted a report prepared by

Bobby Roberts, M.Ed., who completed a Vocational Evaluation. Mr. Roberts concluded that the

FCE report contained “numerous errors and inaccurate conclusions.” H1357. Notably, Mr. Roberts

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explained that the FCE examiner’s conclusion that Bertucci’s limitations were “inconsistent” and

self imposed is erroneous because patients with failed back syndrome “will know specific activities

that increase symptoms and involuntarily avoid those situations. This is not a conscious process

but one that is unconscious as the brain has been programmed . . . to recognize an exacerbating

situation and reacts to avoid the situation or limit engagement.” H1357. Further, Mr. Roberts

explained that “[t]he FCE conclusion that Ms. Bertucci can sit constantly is inconsistent with the

data contained in the report and the sitting that was reported is not sufficient to perform Sedentary

work, nor does it indicate that she could perform Sedentary work functionally.” H1358. Mr.

Roberts also opined that the occupations Aetna identified were not appropriate because they

required certain degrees or licenses that Bertucci does not have. H1359. He concluded,

“Additionally, all of the jobs listed as identified as having a Sedentary Physical Demand Level.

We know from the actual FCE data that she would not meet the functional requirements of

Sedentary work in addition to not qualifying for any of the positions listed.” H1359.

Aetna denied the appeal on June 22, 2015, on the grounds that Bertucci could work as a

Credit Analyst or a Securities, Commodities, and Financial Service Sales Agent. H0220-221. In

denying her appeal, Aetna again cited her treating physicians’ reports as well as Dr. Cirincione’s

independent review, which concluded that “the medical evidence did not substantiate a functional

impairment.” H0220. Aetna concluded that based on her medical history and Dr. Circincione’s

findings, Bertucci “would be restricted to sitting for six out of eight hours listing and carrying

pounds occasionally with frequent position changes as well as three to five minutes of stretch

breaks every hour. These restrictions and limitations would enable Ms. Bertucci to perform a

sedentary occupation on a full-time basis.” H0220. Bertucci filed suit against Aetna on July 6,

2015. H1291-1294. Following mediation, Aetna reinstated Bertucci’s benefits in a letter dated

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November 10, 2016. H0225.

The claim was thereafter reviewed for continued medical impairment. H0274. Aetna

terminated Bertucci’s benefits a second time on April 17, 2018. H0229, H0234, H0247. On

October 31, 2017, Aetna referred Bertucci to an Independent Medical Examination, H0247, that

was performed on January 12, 2018 by Dr. Todd, H0249. A copy of Dr. Todd’s report was sent to

Dr. Thomas, who was asked to provide input on Dr. Todd’s findings. H0257.

Aetna terminated Berucci’s LTD benefits on April 17, 2018. H0273. In its termination

letter, Aetna again explained that Bertucci was no longer “disabled” under the terms of the policy

because she was deemed capable of performing a full-time sedentary job. H0274. Specifically,

Aetna made this decision in reliance on Dr. Todd, the IME physician’s opinion that Bertucci

“would be capable of functioning at a sedentary level with accommodations of frequent position

changes to get out and move around when needed and the ability to sit when needed.” H0274.

Aetna concluded that “[a]ll the above restrictions can be performed in an 8 hour day.” H0274.

Aetna also noted that although it had reached out to Dr. Thomas for a response to Dr. Todd’s

report, no response was received. H0274. Aetna also relied on independent surveillance of

Bertucci, during which she was “observed driving and arriving home.” H0274. Based on Dr.

Todd’s assessments, the lack of response from Dr. Thomas, and the independent observation,

Aetna conducted a Vocational Review of Bertucci’s “work history, experience, and education” to

identify occupations Bertucci could perform despite her physical limitations. Aetna concluded that

Bertucci could be employed as a Credit Analyst or Securities, Commodities, and Financial Service

Sales Agent and that these occupations constituted “reasonable occupations” under the terms of

the policy. H0274. Aetna terminated Bertucci’s benefits on the foregoing basis. H0274.

Bertucci appealed the termination on October 12, 2018, arguing that her debilitating

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medical condition prevents her from performing any of the identified occupations. H0406-0412.

In support of her appeal, Bertucci submitted her own affidavit, the FCE report, a letter from the

Social Security Administration (“SSA”) explaining that Bertucci would continue to receive SSDI

benefits, additional medical records, and a letter from Dr. Thomas prepared in response to the IME

report. Specifically, Bertucci argued the medical evidence does not support Aetna’s finding that

she was capable of returning to full time sedentary work. Citing her medical records, Bertucci

notes she suffers from constant, severe pain that she routinely seeks medical treatment for. H0407.

She also explains that Dr. Thomas completed an Attending Physician Statement on September 11,

2017, indicating that she is incapable of sitting or standing for more than 10 minutes at a time.

H0854. Even Dr. Todd noted poor sitting tolerance, stating that although she “would be capable

of functioning at a sedentary level . . . she will need to be able to move around frequently and stand

up frequently, even perhaps as often as every 15 minutes.” H0912. Bertucci cites the vocational

evaluation completed by Mr. Roberts submitted in connection with her previous appeal, in which

he opined that she would not be employable in any of the identified positions because she lacks

the special licenses, degrees, training, or skill for those jobs. H0448–53. In addition to these

extrinsic limitations, Bertucci argues her present condition would prevent her from working in any

of these jobs, as “[i]t is difficult to imagine the type of sedentary jobs in which one would be able

to be productive while having to stand every 15 minutes. The reality of the situation is that people

will push through the pain in order to be productive, thereby worsening symptoms.” H0408.

In addition to her medical records, Bertucci also relies on a supplemental letter from Dr.

Thomas, prepared in response to Dr. Todd’s report, a second FCE that took place on August 14,

2018, and the SSA’s decision that her disability is continuing. H0413, H0414. Dr. Thomas’s letter

explains that he “believe[s] she would have difficulty sitting or standing or working for an 8 hour

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day given her consistent post-laminectomy syndrome and postoperative pain. I do think she would

only be able to do sedentary duty with frequent accommodations as I have previously discussed.”

H0413. Unlike the September 23, 2014 FCE, the August 14, 2018 FCE reported that “[b]ased on

the results [of the examination], [s]he does not meet the full criteria for competitive Sedentary

Work.” H0414. Notably, the FCE indicated that Bertucci “has a decreased sitting tolerance of 50

minutes maximum during the interview that decrease to 15 minutes during seated tasks.” H0414.

Lastly, Bertucci argues that Aetna disregarded the SSA’s decision that her disability was ongoing

on October 11, 2017. This decision effectively upheld the SSA’s finding from March 27, 2015, in

which the SSA Administrative Law Judge decided that Bertucci was disabled and that

“[c]onsidering [her] age, education, work experience, and residual function capacity, there are no

jobs that exist in significant numbers in the national economy that the claimant can perform.”

H1382.

Aetna denied Bertucci’s appeal on January 11, 2019 on the grounds that “based on the

documentation provided for review, Ms. Bertucci does not appear to have clearly defined

functional impairments from sedentary occupation.” H0307. Specifically, Aetna referred

Bertucci’s claim file to “an independent doctor who specializes in occupational medicine review,”

for a peer review. This doctor reported that although Bertucci suffers from “chronic persistent pain

. . . this condition does not result in total disability.” He concluded that she “would be capable of

maintaining a full-time work schedule” with the following limitations, among others: “There is no

restriction with regard to sitting. Standing/walking should total a combined 2 hours per day, with

each not lasting longer than 15 minutes continuously.” H0307. Based on the opinion that Bertucci

could perform sedentary work with restrictions, Aetna conducted a vocational assessment that

considered Betrucci’s transferrable work skills and a physical capacity, as well as a Transferable

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Skill Analysis and a Labor Market Analysis, and concluded that Bertucci could work as a

Department/Business Manager or a Sales Manager. H0307-0308. Aetna explained these

occupations were identified after considering Bertucci’s education, work history, transferable

skills, and the fact that her licenses were no longer active. H0308. As this was a final decision,

Bertucci filed the instant lawsuit seeking challenging the denial of disability benefits under ERISA.

H0308.

II. PENDING MOTION

Bertucci argues she is entitled to summary judgment in her favor on the grounds that Aetna

wrongfully terminated her disability benefits. R. Doc. 66. Specifically, Bertucci argues that under

either a de novo or abuse of discretion standard of review, the Court should overturn Aetna’s

decision because Bertucci is disabled under the terms of the policy as her physical condition makes

her incapable of performing sedentary work for eight hours a day.

Aetna contends summary judgment in Plaintiff’s favor is not warranted because the

administrative record contains sufficient evidence to affirm its finding that Plaintiff could be

employed as a business/department manager or sales manager despite her physical limitations. R.

Doc. 68.

III. LAW & ANALYSIS

A. Standard of Review

ERISA “provides federal courts with jurisdiction to review benefit determinations by

fiduciaries or plan administrators.” Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh,

PA, 215 F.3d 516, 520–21 (5th Cir. 2000) (citing 29 U.S.C. § 1132(a)(1)(B)). “[A] denial of

benefits challenged under § 1132(a)(1)(B) is generally reviewed under a de novo standard unless

the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility

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for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). “[W]hen an administrator has discretionary authority with respect to the

decision at issue, the standard of review should be one of abuse of discretion.” Vega v. Nat. Life

Ins. Services, Inc., 188 F.3d 287, 295 (5th Cir. 1999).

The parties disagree as to whether the Plan gives Aetna discretionary authority to determine

eligibility, and consequently, which standard of review applies. Aetna contends it has discretionary

authority because it has been designated as the Claims Administrator and because the Plan

documents vests the Administrator with “full power and discretion to administer the Plan in all of

its details,” and defines “Administrator” as including any designees “[t]o the extent the Benefits

Committee has designated any other person to carry out any of its responsibilities under the Plan.”

H1521, H1532. In contrast, Bertucci argues that although the Plan grants the Benefits Committee

as the Administrator discretionary authority and provides the Administrator with the ability to

designate certain functions, Aetna has never been delegated any discretionary powers.

The Court looks to the language of the plan for the answer. The plan document, discussing

in detail the terms of Capital One Financial Corporations’ Employee Welfare Benefits Plan,

defines “Administrator” as follows:

“Administrator” means the Benefits Committee . . . or such other persons or

committees as may be appointed from time to time by the Benefits Committee to

supervise the administration of the Plan . . . . To the extent the Benefits Committee

has designated any other person to carry out any of its responsibilities under the

Plan, the term Administrator shall also include such designee.

H1521. The plan document discusses plan administration in Section 7.2, which provides,

The administration of the Plan shall be under the supervision of the

Administrator. It shall be a principal duty of the Administrator to see that the Plan

is carried out, in accordance with its terms . . . . The Administrator shall have full

power and discretion to administer the Plan in all of its details, subject to applicable

requirements of law. For this purpose, the Administrator’s powers shall include . . .

the following authority . . .

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(a) To make and enforce such rules and regulations as it deems necessary or

proper for the efficient administration of the Plan . . .;

(b) To interpret the provisions of the Plan, make findings of fact, and correct

errors in, supply omissions from, and resolves inconsistencies or ambiguities

in the language of the Plan . . .;

(c) To decide all questions concerning the Plan and the eligibility of any person

to participate in the Plan;

(d) To appoint such agents, counsel, accountants, consultants and other persons

as may be required to assist in administering the Plan;

(e) To allocate and delegate its responsibilities under the Plan and to designate

other persons to carry out any of its responsibilities under the Plan; and

(f) To determine the benefits provided to Participants under the Plan . . . .

H1533.

The Summary Plan Description (“SPD”) is substantially similar. Specifically, the SPD

identifies the Benefits Committee of Capital One as the Plan Administrator and explains that it

“may also delegate certain administrative functions to an insurer, third party administrator or other

entity, . . . in which case any reference herein to the Benefits Committee or the plan administrator

includes such delegate.” H1465. The SPD identifies Aetna as the Claims Administrator for the

LTD policy. R. Doc. 68 at 3–4. The SPD continues:

The Benefits Committee of Capital One Financial Corp. is the Plan Administrator

and has the discretionary power to administer the plans and/or designate others to

administer the plans. The plan administrator’s discretionary powers include, but are

not limited to, to the power to:

• Make and enforce such rules and regulations as deemed necessary or proper

for the efficient plan administration;

• Interpret the plans;

• Decide all questions concerning plans . . .

• Determine the eligibility of any person to participate in plans and the

entitlement of any person to any plan benefits . . . .

H1468.

Based on the foregoing, Bertucci argues that although the Plan provides that the Benefits

Committee of Capital One may delegate its discretionary authority, “nowhere in the plan is there

an actual delegation of its discretionary authority to Aetna.” R. Doc. 70 at 3 (emphasis added). To

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the extent the SPD identifies Aetna as the Claims Administrator, Bertucci argues mere

identification does not constitute a delegation of discretionary authority. R. Doc. 70 at 3. Even if

the identification of Aetna as the Claims Administrator in the SPD could be construed as a grant

of discretionary authority, Bertucci contends such a grant is unenforceable because it was rooted

in the SPD and not the plan document itself. R. Doc. 70 at 3 (citing CIGNA Corp. v. Amara, 563

U.S. 421 (2011)).

In contrast, Aetna argues that because the Benefits Committee has the power to designate

others to carry out its responsibilities and because the term “administrator” includes any designees,

“an Administrator by designation has the same ‘full power and discretion’ to administer the Plan

granted to the Benefits Committee, as Administrator, under Section 7.2.” R. Doc. 71 at 3. Aetna

argues that because the plan allows the Administrator to designate third parties “from time to time,”

particular designees are not named in the plan document. Id. In sum, Aetna argues, “[i]t is clear

that the Administrator allocated and designated to Aetna its claims administration authority and

responsibilities under the long term disability benefit component of the Plan by naming Aetna as

the Claims Administrator in the SPD and by purchasing the Aetna LTD Policy to insure and fund

the long term disability benefit component of the plan.” R. Doc. 71 at 4.

The operative question at this juncture is whether Aetna has been delegated discretionary

authority to interpret the Plan’s terms and determine Bertucci’s eligibility for benefits. In

answering this question, the Court is cognizant that “[d]iscretionary authority cannot be implied;

an administrator has no discretion to determine eligibility or interpret the plan unless the plan

language expressly confers such authority on the administrator.” Wildbur v. ARCO Chem. Co., 974

F.2d 631, 636 (5th Cir. 1992). However, an express delegation does not depend on a “linguistic

template” or any “magic words.” Id. at 636–37. “Rather, the Court must consider the plan language

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as a whole, focusing on the breadth of the administrator's power.” Ravannack v. United Healthcare

Ins. Co., No. CIV.A. 14-2542, 2015 WL 2354186, at *1 (E.D. La. May 15, 2015) (citing Wildbur,

974 at 637).

In answering this question, the Court is authorized to consider both the Plan document and

the SPD. See Manuel v. Turner Indus. Grp., L.L.C., 905 F.3d 859, 869 (5th Cir. 2018), reh'g denied

(Nov. 2, 2018) (finding a delegation of discretion in an SPD where the plan document’s language

was ambiguous). Bertuccis’ position—that to the extent a delegation of authority is provided in

the SPD and not the Plan itself, the delegation is ineffective under CIGNA Corp. v. Amara, 563

U.S. 421 (2011)—does not survive a careful reading of the opinion. In Amara, the Supreme Court

held that although summary plan documents “provide communication with beneficiaries about the

plan,” they “do not themselves constitute the terms of the plan.” 563 U.S. at 438. However, Amara

specifically involved a situation where the terms of the plan’s written instruments conflicted with

the summary plan description. Amara is distinguishable because here, the SPD’s terms do not

conflict with the plan document. As explained in greater detail below, the Plan document vests the

Benefits Committee with discretionary authority and authorizes the delegation of certain functions.

The SPD in turn provides for such delegation by identifying Aetna as the “Claims Administrator.”

More importantly, the Plan document specifically provides that “[t]his document, together with

the Plan’s summary description . . . will constitute the written Plan document for the Plan.” H1520.

Because the SPD is incorporated into the Plan itself and does not conflict with the terms of the

Plan document, the Court may look to the Plan and SPD at this juncture. See Caskey v. Prudential

Ins. Co. of Am., No. CV 18-694-JWD-RLB, 2020 WL 4088954, at *27 (M.D. La. July 20, 2020)

(“Because the Oxy SPD is incorporated into the Plan, and is consistent with the Oxy Wrap, the

Court finds that Amara is distinguishable in this case.”).

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A close review of the Plan and the SPD indicate that Aetna has discretionary authority in

this matter. First, the Plan properly vests the Benefits Committee of Capital One, as the Plan

Administrator, with discretionary authority. H1521; H1532. Specifically, the Benefits Committee

has the “full power and discretion to administer the Plan in all of its details,” including the power

interpret the plan’s terms and determine eligibility of all participants. H1532. Similarly, the SPD

explains the Benefits Committee “has the discretionary power to administer the plan.” H1468. The

Benefits Committee’s powers as listed in the SPD also include the power to interpret the plan and

determine eligibility. H1468.

Second, the Plan specifically authorizes the Benefits Committee to “delegate its

responsibilities under the Plan.” H1532. The Plan document provides that “[t]o the extent the

Benefits Committee has designated any other person to carry out any of its responsibilities . . . the

term Administrator shall also include such designee.” H1521. Similarly, the SPD explains that the

Benefits Committee is the plan administrator, and that “the plan administrator may delegate certain

administrative functions” to a third party. H1465. The SPD specifies that to the extent a delegate

is identified, “any reference herein to the Benefits Committee or the plan administrator includes

such delegate.” H1465.

Third, the Benefits Committee has designated Aetna as the Claims Administrator for the

plan at issue by naming it as such in the SPD. However, whether this designation vests Aetna with

the discretionary powers necessary to trigger the deferential standard of review is a more

complicated question. Most cases in which a valid delegation of discretionary authority exists

involve much more specific grants of power. For example, in Estate of Thompson v. Sun Life Assur.

Co. of Canada, the Fifth Circuit found a valid delegation of discretionary authority from the Plan

Administrator to the third-party insurer based on the following language found in the policy:

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The Plan Administrator has delegated to Sun Life its entire discretionary

authority to make all final determinations regarding claims for benefits under the

benefit plan insured by this Policy. This discretionary authority includes, but is not

limited to, the determination of eligibility for benefits, based upon enrollment

information provided by the Policyholder, and the amount of any benefits due, and

to construe the terms of this Policy.

Any decision made by Sun Life in the exercise of this authority, including

review of denials of benefit, is conclusive and binding on all parties. Any court

reviewing Sun Life's determinations shall uphold such determination unless the

claimant proves Sun Life's determinations are arbitrary and capricious.

354 F. App'x 183, 187 (5th Cir. 2009). Similarly, in Marshall v. Hartford Life & Acc. Ins. Co., a

district court found a valid delegation where the policy provided:

The plan administrator and other plan fiduciaries have discretionary authority to

determine Your eligibility for and entitlement to benefits under the Policy. The plan

administrator has delegated sole discretionary authority to CNA Group Life

Assurance Company to determine Your eligibility for benefits and to interpret the

terms and provisions of the plan and any policy issued in connection with it.

No. CIV.A. 11-10, 2011 WL 4073165, at *3 (E.D. La. Sept. 13, 2011). In Wittmann v. Unum Life

Ins. Co. of Am., the Plan Administrator “delegates to Unum and its affiliate Unum Group

discretionary authority to make benefit determinations under the Plan.” No. CV 17-9501, 2018

WL 5631421, at *6 (E.D. La. Oct. 31, 2018). Likewise in Yelverton v. Am. Int'l Life Assurance Co.

of New York, the Plan Administrator had “delegated to the insurance company the full and

complete discretionary authority and responsibility to decide all questions of eligibility for benefits

under the Plan. The insurance company's decisions are final and binding on all persons to the full

extent permitted by law.” No. W-06-CA-345, 2007 WL 9710561, at *2 (W.D. Tex. June 28, 2007)

These examples are neither few nor far between. See, e.g., Jimenez v. Sun Life Assur. Co. of

Canada, 486 F. App'x 398, 404 (5th Cir. 2012); Raybourne v. Cigna Life Ins. Co. of New York,

576 F.3d 444, 448 (7th Cir. 2009); Wittmann v. Unum Life Ins. Co. of Am., No. CV 17-9501, 2018

WL 5631421, at *6 (E.D. La. Oct. 31, 2018); Colvill v. Life Ins. Co. of N. Am., No. 17-C-1290,

15

2018 WL 4078398, at *3 (E.D. Wis. Aug. 27, 2018); Oliver v. Aetna Life Ins. Co., 55 F. Supp. 3d

1370, 1381 (N.D. Ala. 2014), aff'd, 613 F. App'x 892 (11th Cir. 2015); Demand v. Unum Life Ins.

Co. of Am., No. CIVA3:07CV1785-B, 2009 WL 90480, at *1 (N.D. Tex. Jan. 13, 2009); Earls v.

Blue Cross & Blue Shield of AL, Inc., No. 2:07CV00085-B-A, 2008 WL 1925179, at *3 (N.D.

Miss. Apr. 30, 2008); Lavergne v. Metro. Life Ins. Co., No. CIV.A. 04-0753, 2006 WL 539519, at

*1 (W.D. La. Mar. 3, 2006).

Here, the Benefits Committee did not waste any words when delegating certain powers to

Aetna. In fact, the sole relevant designation apparent from the record is the Benefits Committee’s

identification of Aetna as the Claims Administrator in the SPD, in a chart providing “details about

the plans and how they are administered on a day-to-day basis, including claims administration.”

H1465. Certainly, the Benefits Committee did not delve into any details about what powers Aetna

was authorized to wield or whether Aetna was specifically delegated the power to interpret the

plan or determine benefits eligibility.

Nevertheless, a plain reading of the Plan and the SPD reveals that the identification of

Aetna as the Claims Administrator did carry with it a grant of the Benefit Committee’s

discretionary power. Notably, both the Plan and the SPD explain that to the extent a designee or

delegate has been identified, the term “Administrator” as it appears in both documents includes

such designee or delegate. Accordingly, the Court must read the documents’ terms in reference to

Aetna, such that “[t]he plan administrator [or Aetna, as its designee]’s discretionary powers

include” among other, the power to interpret the plan and determine eligibility. H1468. This

interpretation is bolstered by Section 7.7 of the Plan, which governs the Plan’s “Claims Filing

Procedures.” H1533. Specifically, Section 7.7 provides that “[a] claimant shall be entitled to

benefits hereunder only to the extent so determined by the Administrator (or, as applicable, the

16

Claims Administrator).” Further, although Section 7.10 sets forth the claims procedures for

disability benefits to which the Claims Administrator must abide, the Plan does not articulate what

facts must be found or standards must be employed to make a particular finding, suggesting that

Aetna itself is empowered to determine the standards it uses for claims administration. H1539.

B. The Administrative Record

“[W]hen assessing factual questions, the district court is constrained to the evidence before

the plan administrator.” Vega, 188 F.3d at 299. A court may not “stray from the [administrative

record] but for certain limited exceptions, such as the admission of evidence related to how an

administrator has interpreted terms of the plan in other instances, and evidence, including expert

opinion, that assists the district court in understanding the medical terminology or practice related

to a claim.” Bratton, 215 F.3d at 521. Nevertheless, for purposes of this Court’s review, the

administrative record consists of all “relevant information made available to the administrator prior

to the complainant’s filing of a lawsuit and in a manner that gives the administrator a fair

opportunity to consider it.” Vega, 188 F.3d at 300. As the Fifth Circuit has explained,

[b]efore filing suit, the claimant’s lawyer can add additional evidence to the

administrative record simply by submitting it to the administrator in a manner

that gives the administrator a fair opportunity to consider it. In Moore, we said

that ‘we may consider only the evidence that was available to the plan

administrator in evaluating whether he abused his discretion in making the

factual determination.’ If the claimant submits additional information to the

administrator, however, that additional information should be treated as part of

the administrative record. Thus, we have not in the past, nor do we now, set a

particularly high bar to a party’s seeking to introduce evidence into the

administrative record . . . . [I]n restricting the district court’s review to evidence

in the record, we are merely encouraging attorneys for claimants to make a good

faith effort to resolve the claim with the administrator before filing suit in

district court.

Id. The court may therefore consider relevant evidence if it was made available to the plan

administrator prior to the plaintiff’s filing suit and was presented in such a way as to afford the

17

plan administrator a fair opportunity to consider the evidence. Id.

C. Aetna’s Termination Decision

Having concluded that Aetna was properly delegated discretionary authority to make

claims decisions, the Court must consider whether its decision to deny Bertucci’s benefits was an

abuse of discretion. Under this standard, the Court considers whether the administrator’s decision

was arbitrary and capricious. Meditrust Fin. Servs. Corp. v. Sterling Chemicals, Inc., 168 F.3d

211, 215 (5th Cir. 1999). The administrator’s decision must be upheld if it is supported by

substantial evidence. Id. “Substantial evidence is ‘more than a scintilla, less than a preponderance,

and is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Ellis v. Liberty Life Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004) (quoting

Deters v. Secretary of Health, Educ. & Welfare, 789 F.2d 1181, 1185 (5th Cir. 1986)). “[T]he law

requires only that substantial evidence support a plan fiduciary’s decisions, including those to deny

or to terminate benefits, not that substantial evidence (or, for that matter, even a preponderance)

exists to support the employee’s claim of disability.” Ellis v. Liberty Life Assur. Co. of Bos., 394

F.3d 262, 273 (5th Cir. 2004).

Whether an administrator has a conflict of interest is a factor in the abuse of discretion

analysis. Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009). A structural

conflict of interests exists where, as here, the entity that funds the plan also determines eligibility

for benefits. Glenn, 554 U.S. at 112 (2008). The Supreme Court has advised that the conflict is

significant “where circumstances suggest a higher likelihood that it affected the benefits decision,

including, but not limited to, cases where an insurance company administrator has a history of

biased claims administration,” but should be given less weight “where the administrator has taken

active steps to reduce potential bias and to promote accuracy, for example, by walling off claims

18

administrators from those interested in firm finances, or by imposing management checks that

penalize inaccurate decisionmaking.” Id. at 117. Rather than adhering to a precise standard for

making this determination, a reviewing court considering such a conflict is merely “less likely to

make forgiving inferences when confronted with a record that arguably does not support the

administrator’s decision.” Vega, 188 F.3d at 298.

Here, the Court is inclined to give some credence to Aetna’s conflict of interest. Although

the Court is unaware of any “history of biased claims administration” on Aetna’s part, Glenn, 554

U.S. at 117, the administrative record reveals some procedural irregularities with respect to

Bertucci’s particular claim that give the Court pause. See id. at 118 (suggesting that evidence of

“procedural unreasonableness” weighs on the conflict analysis). The administration of this claim

has clearly been arduous and contentious. Notably, Aetna has denied this claim, and reversed its

decision on appeal or through litigation and mediation on multiple occasions. Further, in makings

its final decision, Aetna relied heavily on the opinion of a non-treating physician who failed to

make contact with Plaintiff’s treating physicians and, more important, specifically contradicted the

findings of her treating physicians to the extent he determined that Bertucci could perform a job

with “no restriction with regard to sitting.” H0307. Further, Aetna failed to address the SSA’s

finding that Bertucci was completely disabled from performing any occupation, a factor that while

not dispositive, should have at least been addressed in in denial decision. See Schexnayder v.

Hartford Life & Acc. Ins. Co., 600 F.3d 465, 471 (5th Cir. 2010) (holding that the failure to

consider a contrary SSA determination was an example of procedural unreasonableness that gave

weight to the conflict of interest analysis). In sum, the arduous history of this claim and Aetna’s

failure to address directly contrary findings suggests that Aetna’s conflict of interest should be

considered as a factor in the proceeding analysis.

19

Bertucci argues Aetna abused its discretion by (1) failing to consider the substantial

evidence in support of her claim and (2) failing to provide a full and fair review of her claim. The

Court considers each in turn.

In relevant part, the LTD policy provides that an individual is “disabled” if, “[a]fter the

first 24 months of a certified period of disability . . . [y]ou are not able, solely because of disease

or injury, to work at any reasonable occupation.” H0003. The Plan defines “reasonable

occupation” as “any gainful activity for which you are, or may reasonably become, fitted by

education, training or experience.” H0020. A beneficiary is not deemed to be “working at a

reasonable occupation” if the income generated by that occupation is less than 80% of his or her

adjusted pre-disability earnings. H0003.

In denying Bertucci’s claim for LTD benefits, Aetna first found that Bertucci was capable

of working in the following “reasonable occupation[s]”: Credit Analyst or Securities,

Commodities, and Financial Service Sales Agent. H0274. Following Bertucci’s appeal, Aetna

revised the reasonable occupations it believed she could perform to Department/Business Manager

and Sales Manager. H0308. Specifically, Aetna determined that Bertucci would be able to perform

the full-time, sedentary duties of these professions based on the assessments of (1) Dr. Todd, the

IME physician who opined on January 12, 2018 that Bertucci could perform sedentary-level work

with certain accommodations; (2) Dr. Thomas, who wrote a letter on April 17, 2018 indicating that

Bertucci “would be capable of performing sedentary type work with accommodations,” and (3)

Dr. Parillo, the peer reviewer, who recognized that although Bertucci’s condition causes significant

pain, it “does not result in total disability” and therefore does not preclude her from maintaining a

full-time work schedule with certain accommodations. H0307.

Bertucci argues that Aetna failed to consider the substantial evidence in support of her

20

claim. Specifically, Bertucci argues she “has demonstrated that she lacks the ability to work at any

reasonable occupation given the severity of her condition,” and cites extensively from her medical

records in support of her continuing and debilitating pain. R. Doc. 66-1 at 7–8. Bertucci also argues

that although she may be technically capable of working for eight hours a day with certain

restrictions, the necessary accommodations identified by the physicians are not compatible with

the realities of a full-time sedentary position. Id. at 9. Bertucci stresses her position is supported

by the Social Security Administration’s ALJ, who found her to be completely disabled from any

occupation, and the August 2018 FCE that demonstrated that she “does not meet the full criteria

for competitive sedentary work.” Id. Additionally, she argues it was an abuse of discretion for

Aetna to rely so heavily on the opinion of Dr. Parillo, a non-treating physician who never examined

her and whose opinion was derived solely from his review of medical records.

A review of the administrative record reveals that Bertucci suffers from post laminectomy

syndrome, failed back syndrome, arachnoiditis, and radiculopathy, and has submitted to multiple

surgeries in an attempt to alleviate the plain. It is clear that Bertucci lives her life in almost constant

pain, and the Court doubts that a woman of her age, education, and most importantly, physical

condition would be able to maintain a full-time job as either a sales manager or a department

manager. However, the abuse of discretion standard does not permit the Court to substitute its

judgment for Aetna’s. In reviewing Aetna’s decision for an abuse of discretion, the Court is

cognizant that it is limited to considering only whether “substantial evidence support[s] a plan

fiduciary’s decisions, including those to deny or to terminate benefits, not [whether] substantial

evidence (or, for that matter, even a preponderance) exists to support the employee’s claim of

disability. Ellis v. Liberty Life Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004).

The Court notes that Dr. Thomas, Dr. Todd, and Dr. Parillo all apparently agree that

21

Bertucci is capable of performing some type of sedentary work. However, they appear to disagree

about the amount of work Bertucci would be capable of performing and the specific

accommodations that would be required. Notably, Dr. Todd opined that based on her physical

abilities, Bertucci “would be capable of functioning at a sedentary level,” but did not comment on

the amount of time she could perform sedentary tasks. H0912. Dr. Todd explained that sedentary

work would only be possible with “frequent position changes allowing her to get out and move

around whenever she needs to and allowing her to sit whenever she needs to.” H0912. He explained

that she may need to sit or stand “perhaps as often as every 15 minutes.” H0912. In response to

Dr. Todd’s findings, Dr. Thomas clarified that although he also believed “she would only be able

to do sedentary duty with frequent accommodations,” he “believ[ed] she would have difficulty

sitting or standing or working for an 8 hour work day” given her condition. H0413. In contrast,

even though Dr. Parillo recognized that Bertucci “would have difficult with remaining in a fixed

position for a prolonged period of time,” he concluded that “the restrictions/limitations of no

sitting/standing for longer than 10 minutes is not reasonable or consistent with the documentation

provided in the record.” H0375–76. He then states that Bertucci “would be capable of returning to

work” with “no restriction with regard to sitting.” H0376. Parillo apparently based this finding on

a review of Bertucci’s records which reveled specific instances of Bertucci’s ability to sit for more

than 10 minutes, for example, during the FCE interview, and “video surveillance of the claimant

standing for longer than 10 minutes at one time.” H0376.

As an initial matter, Aetna’s decision to prioritize the opinion of the non-treating peer

reviewer Dr. Parillo, is not in and of itself an abuse of discretion. The Supreme Court has explained

that although administrators “may not arbitrarily refused to credit a claimant’s reliable evidence,

including the opinions of a treating physician,” they are not required to “accord special weight to

22

the opinions of a” treating physician. See Black & Decker Disability Plan v. Nord, 538 U.S. 822,

834 (2003). Further, the Supreme Court has rejected the idea that an administrator must provide a

specific “explanation when they credit reliable evidence that conflicts with a treating physician's

evaluation.” Id. Accordingly, Aetna was within its right to consider the evidence and give more

weight to Dr. Parillo’s opinion than the other doctors.

Nevertheless, Aetna’s decision to rely so heavily on Dr. Parillo’s opinion is concerning

because Dr. Parillo categorially pronounced that “there is no restriction with regard to sitting,”

H0376, despite the fact that both Dr. Todd and Dr. Thomas, as well as both FCE examiners, and

Bertucci’s vocational evaluator, who noted that Bertucci had poor sitting tolerance and would need

specific accommodations and restrictions with regard to sitting were she to return to sedentary

work. H0413, H0450, H0912, H0426. Additionally, although Dr. Parillo suggests Bertucci is

capable of returning to work full-time, no other doctor specifically comments on the length of time

Bertucci would be capable of working, save for Dr. Thomas, who believes she would “have

difficulty . . . working for an 8 hour day given her condition.” H0413. In sum, the Court is

concerned that Dr. Parillo’s opinion conflicts with the records he reviewed, which consistently

revealed substantial limitations with respect to the amount of time Bertucci could remain seated.

Additionally, Aetna failed to address the SSA’s determination that Bertucci was totally

disabled from any occupation and its subsequent decision that her disability is ongoing. H1382,

H0431. Indeed, the failure to consider a contrary SSA award may constitute “procedural

unreasonableness” that is “important in its own right and also ‘justifie[s] the court in giving more

weight” to a conflict of interest. Schexnayder, 600 F.3d at 471 (holding that a benefits decision

was procedurally unreasonable because the Administrator’s denial letters failed to acknowledge

the existence of an SSA determination that was “in direct conflict with its own”). Of course, while

23

entitlement to social security benefits is certainly relevant to the final decision, the SSA’s

determination is not binding on Aetna. The Court recognizes that disability determinations made

by the SSA are subject to a different standard than those under ERISA. See Hammond v. UNUM

Life Ins. Co. of Am., Civ. A. No. 05–632, 2008 WL 906522, at *11 (S.D. Miss. Mar. 31, 2008)

(“[E]ntitlement to Social Security benefits is measured by a uniform set of federal criteria, but a

claim for benefits under an ERISA plan often turns on the interpretation of plan terms that differ

from SSA criteria. . . . [T]he determination that a claimant suffers from a disability under Social

Security regulations does not require an ERISA plan administrator to reach the same conclusion.”).

However, the Court finds that Aetna’s decision to ignore the SSA’s contrary decision was

unreasonable in its own right, particularly in light of Aetna’s aforementioned conflict of interest

in this matter, particularly because the SSA ALJ relied on largely the same evidence to reach a

decision entirely contrary to Aetna’s.

Furthermore, the Court finds that Aetna failed to substantially comply with ERISA’s

procedural requirements in considering this claim. Bertucci argues Aetna failed to provide a full

and fair review of her claim in violation of Aetna’s express procedural requirements. Specifically,

she argues she was denied a full and fair review because Aetna (1) changed the “reasonable

occupations” it believed she could perform in its final decision letter and (2) failed to identify the

vocational expert who authored the report on which it relied when considering her appeal. R. Doc.

70 at 15. The Court considers each in turn.

“When denying claims, ERISA-covered employee benefit plans must: (1) provide adequate

notice; (2) in writing; (3) setting forth the specific reasons for such denial; (4) written in a manner

calculated to be understood by the participant; and (5) afford a reasonable opportunity for a full

and fair review by the administrator.” Killen v. Reliance Standard Life Ins. Co., 776 F.3d 303, 310

24

(5th Cir. 2015). Challenges to procedural violations of ERISA are subject to a “substantial rather

than strict compliance” standard. Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir. 2005).

Rather than requiring technical compliance with the statutory requirements, courts consider

whether the purpose of section 1133—“afford[ing] the beneficiary an explanation of the denial of

benefits that is adequate to ensure meaningful review of that denial”—has been fulfilled. Lafleur

v. Louisiana Health Serv. & Indem. Co., 563 F.3d 148, 154 (5th Cir. 2009) (citing Robinson v.

Aetna Life Ins., 443 F.3d 389, 393 (5th Cir. 2006); Schneider v. Sentry Long Term Disability, 422

F.3d 621, 627–28 (7th Cir. 2005)).

Aetna’s initial denial letter determined Bertucci was not disabled because she could

continue to work as a registered representative, financial planner, and factor (financial institutions).

H0274. Plaintiff appealed the denial, arguing that in addition to not being able to physically

perform these roles due to her medical condition, she did not possess the necessary training,

education, and experience to secure such a position. H0407. Aetna’s final decision letter denied

eligibility on the grounds that she could work as a department/business manager and sales manager

despite her physical limitations. H0308.

The question is, therefore, whether Aetna substantially complied with its obligation to

provide a “full and fair review” when it changed the occupations it believed Bertucci could perform

in its final decision letter. The parties seriously dispute this issue. Bertucci contends this is a “new

rationale for denying the claim,” and because it was contained in a final decision letter, she was

deprived of any opportunity to challenge the specific basis for rejecting her claim. R. Doc. 66 at

11. In contrast, Aetna argues Bertucci was granted a full and fair review because both the initial

and final claims decisions were based on the same underlying justification: Bertucci’s ability to

work in certain reasonable occupations.

25

“To comply with the “full and fair review” requirement in deciding benefit claims under

ERISA, a claim administrator must provide the specific grounds for its benefit claim denial.”

Cooper v. Hewlett-Packard Co., 592 F.3d 645, 652 (5th Cir. 2009). An administrator fails to

substantially comply with this requirement when it deprives the claimant of the opportunity to

administratively challenge a new justification for the termination of benefits identified after an

appeal.

For example, in Robinson v. Aetna Life Insurance Co., a sales representative sought

benefits after suffering a stroke that impaired his vision and prevented him from driving, because

his job required him to drive hundreds of miles each week. 443 F.3d 389, 391 (5th Cir. 2006). The

administrator initially denied his claim because it believed he was capable of driving. Id. at 393.

The plaintiff appealed the denial and introduced evidence that he was in fact not able to drive. The

administrator affirmed its decision on the grounds that the position of sales representative did not

require the ability to drive. Id. The Fifth Circuit held that the administrator had not complied with

Section 1133 because it had changed the “specific ground” upon which it relied on find that the

plaintiff was not disabled without affording the plaintiff the opportunity to respond.

In contrast, in Cooper v. Hewlett Packard Co., the Fifth Circuit took “the opportunity to

highlight the significant differences between the bait and switch tactic at issue in Robinson, and

[an] honest, fair, and full review.” 592 F.3d 645, 653 (5th Cir. 2009). In Cooper, the plaintiff’s

claim was initially denied because the medical evidence failed to establish that the was prevented

from all employment. Id. at 652–53. The administrator affirmed the denial on appeal after

consulting additional medical records that revealed that the plaintiff was in fact employed. Id. at

653. The Court held that the administrator’s review substantially complied with ERISA because

although the administrator considered a new fact it “had not considered in the initial denial of her

26

claim (this new fact being her employment), the mention of the new fact did not constitute different

of separate “specific grounds” for the initial denial.” Id. at 653–54.

Neither Robinson nor Cooper squarely align with the present facts. Here, Bertucci’s claim

was initially denied because Aetna believed she could perform certain “reasonable occupations,”

and it upheld its decision on the same grounds, although it changed the “reasonable occupations”

it believed she could perform in light of evidence and argument Bertucci presented on appeal.

Unlike in Robinson, where the plaintiff’s claim was initially denied because of evidence that the

plaintiff was not disabled, and that decision affirmed on the basis that his disability did not impact

the performance of his job, Bertucci’s claim was consistently denied on the basis that she could

continue to work in some capacity. However, unlike in Cooper, where the initial denial was

affirmed on appeal in light of evidence supporting the plaintiff’s ability to continue working,

Bertucci presented evidence on appeal that caused Aetna to shift its reasoning for denying her

claim, albeit in a much less egregious manner than in Robinson. In other words, Cooper is

distinguishable on the basis that here, Bertucci presented additional evidence on appeal that did

not uphold the initial decision but in fact required Aetna to recognize that Bertucci would be unable

to work in the occupations it had selected, reassess its original positions, and identify entirely new

occupations it believed she could perform.

Although this is a close issue, the Court is inclined to find that Aetna failed to substantially

comply with ERISA when it identified alternative occupations it believed Bertucci could perform.

The Court stresses that Bertucci has convincingly argued in the course of this litigation that the

professions Aetna has identified, which involve starting salaries well in excess of any amount

Bertucci ever made, are not “reasonable occupations” for a woman in her late fifties, who has been

out of the work force for seven years, who has no experience in similar roles, and who, most

27

importantly, is incapable of maintaining a seated position for more than fifteen minutes at a time.

Whether, and to what extent these factors matter to the identification of “reasonable occupations”

is a question the Plan Administrator should have the opportunity to address. Indeed, Bertucci

successfully challenged the occupations Aetna originally identified in its original denial and it is

certainly conceivable that she would be successful in demonstrating that these newly identified

occupations are not reasonable, had she had the opportunity to respond a second time. Although

the procedural violation at issue here is nowhere near as flagrant as in Robinson, it nevertheless

prevented Bertucci from receiving a full and fair review of her claim.

Bertucci also argues Aetna’s decision was procedurally unreasonable because Aetna failed

to identify the vocational expert who authored a report Aetna relied on when considering Plaintiff’s

appeal. R. Doc. 70 at 15. Under 29 CFR 2560.503-1(h)(3)(iv), plans must “provide for the

identification of medical or vocation experts whose advice was obtained on behalf of the plan in

connection with” an adverse benefits decision. 29 CFR § 2560.503-1(h)(3)(iv). Generally, a plan

substantially complies with this requirement when it provides a procedure through which a

claimant may learn the identity of the experts. See, e.g., Provencio v. SBC Disability Income Plan,

No. SA-05-CA-0032-WWJ, 2006 WL 3927168, at *8 (W.D. Tex. Dec. 6, 2006); Walker v.

Kimberly-Clark Corp., No. 1:08CV146-SA-JAD, 2010 WL 611007, at *10 (N.D. Miss. Feb. 17,

2010); Orr v. Metro. Life Ins. Co., No. CIV. 1:CV-04-0557, 2007 WL 2702929, at *15 (M.D. Pa.

Sept. 13, 2007).

Here, Section 7.10(d) of the Plan, governing claims procedures, clearly requires the Claims

Administrator to provide the “identity of those medical experts whose advice was obtained in

connection with the claim,” as well as “copies of all documents, records and other information

relevant to the claim.” H1540. This provision, which provides a method for the identification of

28

experts upon request, clearly satisfies the applicable regulation. Further, it appears as though

Bertucci requested the identity of the vocational expert on April 19, 2018, this letter was in

response to Aetna’s April 17, 2018 initial termination of benefits. H0894. Nowhere does Bertucci

request the identity of the vocational expert who Aetna intends to consult on appeal. Although the

Court recognizes that Bertucci “did not specify a date in her request and requested such

information with respect to the ‘adverse benefit determination’” generally, R. Doc. 74 at 4–5, the

Court declines to hold that Aetna’s failure to respond with the identity of a consultant it may not

have even hired yet is a substantial departure from ERISA’s requirement.

“Remand to the plan administrator for full and fair review is usually the appropriate remedy

when the administrator fails to substantially comply with the procedural requirements of ERISA.”

Lafleur v. Louisiana Health Serv. & Indem. Co., 563 F.3d 148, 157 (5th Cir. 2009). Although a

Court may overturn an adverse decision “where the record establishes that the plan administrator’s

denial of the claim was an abuse of discretion as a matter of law,” if the evidence “reflects, at

minimum, a colorable claim for upholding the denial of benefits, remand is usually the appropriate

remedy.” Id. at 158 (citing Gagliano, 547 F.3d at 240).

Although the Court has highlighted some procedural irregularities and concerns that

complicate the question, the administrative record reveals that there is at least a “colorable claim”

for the denial of Bertucci’s benefits, especially in light of the medical opinions that Bertucci can

perform some sedentary work with specific, frequent restrictions. Nevertheless, the Court declines

to decide the issue at this juncture, finding that remand to Aetna to afford Bertucci the opportunity

to receive a full and fair review of her claim is the appropriate remedy.

IV. CONCLUSION

Based on the foregoing,

29

IT IS ORDERED that this matter is REMANDED to the Admmistrator for further

proceedings consistent with this opinion.

New Orleans, Louisiana this 21st day of August, “A

Eldon E. Fallon

United States District Judge

30