UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary Hopper

v. Civil No. 14-cv-450-LM Opinion No.

Aetna Life Insurance Company

O R D E R

Gary Hopper claims that Aetna Life Insurance Company

(“Aetna”) violated the Employee Retirement Income Security Act

(“ERISA”),

, by terminating his long-term

disability benefits under a plan it administered for his

employer. Before the court are motions for judgment on the

administrative record filed by both parties. Each motion is

duly opposed. For the reasons that follow, Aetna’s motion is

granted, and Hopper’s motion is denied.

I. Background

Until May of 2011, Hopper worked as a machinist for Ametek,

Inc. While he was employed by Ametek, he was covered by a plan,

administered and insured by Aetna, that provides both short-term

disability (“STD”) and long-term disability (“LTD”) benefits.

Under that plan, Aetna has “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.” Administrative Record

(hereinafter “AR”), at D 000149. The plan further provides that

Aetna “shall be deemed to have properly exercised such authority

unless [it] abuse[s] [its] discretion by acting arbitrarily and

capriciously.”

Shortly before he left Ametek’s employment, Hopper applied

for and was awarded STD benefits. In his application, Hopper

identified various medical conditions that precluded him from

working in dusty or dirty environments. Those conditions

include allergies, eczema, asthma, Bowen’s Disease, amblyopia,

dry eye, decreased visual acuity, s/p penetrating keratoplasty,

herpes simplex keratitis, open angle glaucoma, and keratoconus.

After Hopper’s STD benefits were exhausted, he was awarded LTD

benefits for a 24-month period running from August 23, 2011,

through August 23, 2013. Under the applicable test of

disability, he was entitled to LTD benefits based upon Aetna’s

determinations that he could not perform the duties of his own

occupation as a machinist, and that his earnings fell below a

specified threshold.

2 Under the Aetna plan, when Hopper had collected LTD

benefits for 24 months, he became subject to a stricter test of

disability that entitled him to LTD benefits only if he was

“unable to work at any reasonable occupation solely because of

an illness, injury or disabling pregnancy-related condition.”

AR, at D 000164. The plan defines “reasonable occupation” as

“any gainful activity” for which a plan participant is “or may

reasonably become, fitted by education, training, or experience;

and [w]hich results in, or can be expected to result in, an

income of more than 80% of [the participant’s] adjusted

predisability earnings.”

at D 000182. Under the plan,

eligibility for LTD benefits ends when, among other things, a

plan participant “no longer meet[s] the LTD test of disability.”

at D 000165.

In January of 2013, Aetna notified Hopper that as of August

23, 2013, he would become subject to the stricter “any

reasonable occupation” test and that his claim would be reviewed

under that test. In a letter dated August 15, 2013, Aetna

informed Hopper that he was not entitled to LTD benefits under

the “any reasonable occupation” test because he could perform

the occupations of machinist, bench assembler, and tool

programmer. In rendering that decision, Aetna did determine

3 that Hopper was “precluded from . . . performing tasks that

required the ability to see small print or fine detail without

the use of a magnifying device / ability to adjust print font

sizes.” AR, at D 000285.

Hopper appealed Aetna’s decision. He pointed out that

Ametek had discharged him from his position as a machinist

“because his employers determined that his continued employment

would pose a danger to himself and others.” AR, at D 000287.

He also noted medical issues, including vision problems, that

precluded him from working in the three occupations Aetna

identified, and also asserted that Aetna’s findings were

“inconsistent with those of the social security administration.”

AR, at D 000288.

Initially, Aetna agreed with Hopper. In a letter dated

January 10, 2014, Aetna explained:

Based upon our review of all the information submitted and gathered during the claim and appeal, we have overturned our original decision to terminate Mr. Hopper’s benefits; our review has established that the employment options identified do not fit within all of his physical restrictions and limitations. As a result, [Hopper’s] claim has been returned to the claims operation team and will be re-opened by [the] Disability Benefits Manager (DBM) for review and benefit payment, effective August 23, 2013.

Pl.’s Mem. of Law (doc. no. 13) 13.

4 Approximately three weeks later, Hopper received another

letter from Aetna. In it, Aetna informed Hopper that it agreed

with him that “the original occupations [it had] identified

would not be appropriate as [he was] precluded from working in

an environment that would [involve] expos[ure] to dust and dirt

as this [would] trigger a flare up of [his medical] condition.”

AR, at D 000758. Aetna went on to explain that it had Hopper’s

medical documentation reviewed by a dermatologist and an

ophthalmologist, and then determined that he “would have

sustained full duty work capacity in an office environment.”

Then, based upon a review by a vocational rehabilitation

consultant, Aetna determined that Hopper could work as an

assignment clerk. Aetna also explained that it gave little

weight to the fact that Hopper was receiving Social Security

disability benefits, based upon its own Transferrable Skills

Analysis (“TSA”).

Hopper appealed. Again he argued that Aetna’s denial of

benefits was “inconsistent with the federal government’s

determination that [he] is disabled and eligible for Social

Security Disability benefits.” AR, at D 000193. He also

described his visual impairments and explained that they were

the cause of Ametek’s decision to terminate his employment as a

5 machinist. Finally, he noted his long career as a machinist and

argued that he did not have the education, training, or

experience to perform office work such as the occupation of

assignment clerk.

Aetna affirmed its decision to terminate Hopper’s LTD

benefits. Its decision rationale provides, in pertinent part:

A[n] Opthamology [sic] Peer Review of claimant’s medical file was completed 09/08/2014 and the findings with regard to claimant’s functional impairments were that claimant would be precluded from working with machinery as well as performing fine detail work. Claimant would be able to work full-time in a clean office environment, however, his eye impairments would preclude [him] from performing activities requiring a binocular visual acuity better than 20/40, depth perception, and bilateral peripheral vision. Claimant sent in documentation for his appeal on 07/29/2014 which did not provide any new information involving claimant’s eyes. The information was followed by a report dated 07/30/2014 by Erin Fogle, Opthamologist [sic] which did not note any change in claimant[’]s eye conditions since 2013 and noted claimant is functional for activities of daily living. The report of Dr. Fogle notes that it is very difficult for claimant to carry out any kind of work that would require good depth perception or to work in a dusty or dirty environment.

A TSA/LMA was performed on 01/28/14 finding that the occupation of Assignment Clerk was a reas[o]nable alternative occupation which claimant could perform . . . . Claimant’s Appeal notes that in addition to his visual restrictions, claimant has dyslexia and poor spelling with no background working in an office environment. Further inquiry to VRCS was requested as a result of functional limitations as stated in a Peer Review of claimant’s file. It was noted [b]y VRCS

6 that claimant has obtained his GED, stated he has taken some college level courses and has been a state legislator for almost 4 years. The visual functional limitations and spelling limitati[o]ns could be addressed with 1. a hands free magnifier, 2. pc screen magnifier, 3. a stand-alone screen magnifier 4. magnifier/screen reader or 5. zoom text software. All of these devi[c]es could be considered reasonable accommodations for the identified occupation of Assignment Clerk.

AR, at D 001067.

This action followed. In it, Hopper asserts two claims

under ERISA (Counts I and II), along with a claim for breach of

contract (Count III), and a claim for a declaratory judgment

(Count IV). Count I is Hopper’s claim that Aetna violated ERISA

by terminating his LTD benefits. Count II is Hopper’s claim

that Aetna violated ERISA by failing to give him a reasonable

opportunity for a full and fair review of its decision to

terminate his benefits.

II. Discussion

Both parties have moved for judgment on the administrative

record. Neither motion expressly indicates the count or counts

to which it applies, but both parties limit themselves to

discussing Hopper’s claim that Aetna violated ERISA by

terminating his LTD benefits. So, too, will the court limit

itself to the claim Hopper asserts in Count I.

7 The next order of business is setting out the standard of

review. The court of appeals for this circuit has explained

that “in an ERISA benefit-denial context, ‘the district court

sits more as an appellate tribunal than as a trial court.’”

Cusson v. Liberty Life Assur. Co. of Bos.,

, 224

(1st Cir. 2010) (quoting Leahy v. Raytheon Co.,

(1st Cir. 2002)). Thus, “[i]n an ERISA benefit denial case,

trial is usually not an option,” Leahy,

, as

the district court “does not take evidence, but, rather,

evaluates the reasonableness of an administrative determination

in light of the record compiled before the plan fiduciary,”

(citing Recupero v. N.E. Tel. & Tel. Co.,

(1st

Cir. 1997); Perry v. Simplicity Eng’g, Div. of Lukens Gen.

Indus., Inc.,

(6th Cir. 1990)).

That said, “where an ERISA plan delegates to the plan

administrator the discretion to construe the plan and determine

eligibility for benefits under its provisions, a decision made

under the plan will be upheld unless it was ‘arbitrary,

capricious, or an abuse of discretion.’” Niebauer v. Crane &

Co.,

(1st Cir. 2015) (quoting Cusson, 592

F.3d at 224); see also Metro. Life Ins. Co. v. Glenn,

(2008) (citing Firestone Tire & Rubber Co. v. Bruch,

8

(1989)). A decision by a plan administrator

passes muster under this standard if it is “reasoned and

supported by substantial evidence.” Ortega-Candelaria v.

Johnson & Johnson,

(1st Cir. 2014) (quoting

Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack

Anesthesia Assocs. Long Term Disability Plan,

(1st Cir. 2013)). “Evidence is deemed substantial when it is

reasonably sufficient to support a conclusion.” Niebauer,

(quoting Ortega-Candelaria,

).

The plan that covers Hopper gives Aetna the degree of

discretion that engenders deferential review by this court.1

“Thus, the question before [the court] is not which side is

right.” Niebauer,

. Rather, the question is

whether Aetna’s decision to terminate Hopper’s LTD “benefits was

reasonable on the record before it.”

Hopper argues that

Aetna’s decision was neither reasoned nor supported by

substantial evidence. The court does not agree.

In its letter of January 29, 2014, in which it informed

Hopper of its decision that he was not disabled from performing

1 To the extent that Hopper argues that a less deferential standard of review applies, he is mistaken. See Cusson, 592 F.3d at 224 (citing Metropolitan Life,

).

9 any reasonable occupation, Aetna explained how it determined

Hopper’s work capacity and how it determined that Hopper’s work

capacity permitted him to perform the occupation of assignment

clerk. It also cited medical reviews by both an ophthalmologist

and a dermatologist, and cited an analysis performed by a

vocational rehabilitation consultant. Finally, the January 29

letter acknowledged Hopper’s receipt of Social Security

disability insurance benefits, and explained why it accorded

little weight to that fact. Similarly, after Hopper appealed

the January 29 decision, Aetna provided a detailed decision

rationale that explained why it denied Hopper’s appeal. That

decision rationale, in turn, discussed both the results of an

additional review of Hopper’s file by an ophthalmologist and

Aetna’s consideration of information provided by Hopper’s

treating ophthalmologist. Based upon the foregoing, the court

has no difficulty concluding that Aetna’s decision was both

reasoned and supported by substantial evidence.

Hopper’s argument to the contrary consists of claims that

the record is replete with medical opinions that he is disabled

from any work, that Aetna erred by giving little weight to those

opinions while giving great weight to the opinions of its own

medical experts, and that the opinion by Dr. Osowski on which

10 Aetna relied, is internally inconsistent. Those arguments are

not persuasive.

To begin, the favorable medical opinions on which Hopper

relies are not mentioned in the parties’ Joint Statement of

Material Facts, and Hopper’s argument on this point includes no

citations to the administrative record, notwithstanding the fact

that, as the claimant, he “bears the burden of providing

evidence that he is disabled within [his] plan’s definition.”

Morales-Alejandro v. Med. Card Sys., Inc.,

(1st Cir. 2007) (citing Wright v. R.R. Donnelley & Sons Co. Grp.

Benefits Plan,

(1st Cir. 2005)). Second, as to

Aetna’s alleged disregard of Hopper’s treating physician’s

opinions, those opinions are entitled to no special weight. See

Ortega-Candelaria,

(citing Black & Decker

Disability Plan v. Nord,

(2003); Medina v.

Metro. Life Ins. Co.,

(1st Cir. 2009)).

“Moreover, so long as substantial evidence supports the plan

administrator’s decision, the decision is not rendered

unreasonable by the mere existence of evidence to the contrary.”

Ortega-Candelaria,

. That is, “in the presence of

conflicting evidence, it is entirely appropriate for a reviewing

court to uphold the decision of the entity entitled to exercise

11 its discretion.” Niebauer,

(quoting Gannon v.

Metro. Life Ins. Co.,

(1st Cir. 2004)).

Finally, Aetna’s reliance upon Dr. Osowsky’s opinion does

not undermine its decision. Hopper argues that the vision

problems Dr. Osowsky identified preclude him from working as an

assignment clerk. Dr. Osowsky did indeed focus on Hopper’s

visual impairments and opine that they precluded him from

certain kinds of work:

The claimant’s corrected visual acuity on 10/16/13 was Hand Motion (right) and 20/40 (left) with no improvement noted on the examination of 3/24/14. He is by definition legally blind in the right eye and the absence of peripheral vision in the right eye as well as a lack of depth perception would preclude him from working with machinery as well as performing fine detail work for the time period noted.

AR, at D 000191. Then, in response to a question asking whether

Hopper’s eye impairments would preclude him from full-time work

in a clean office environment, Dr. Osowsky opined:

Mr. Hopper would be able to work full-time in a clean office environment, however his eye impairments would preclude him from performing activities requiring a binocular visual acuity better than 20/40, depth perception, and bilateral peripheral vision.

AR, at D 000192. There is no internal inconsistency in Dr.

Osowsky’s opinion, and Hopper has provided no support for the

12 proposition that the visual impairments Dr. Osowsky identified

would preclude him from working as an assignment clerk.

In sum, Aetna’s decision to terminate Hopper’s LTD benefits

was both reasoned and supported by substantial evidence. That

ruling would appear to foreclose any contention that Aetna’s

decision was an abuse of discretion. However, in his argument

for a less deferential standard of review, Hopper advances

several criticisms of Aetna’s decision that could be construed

as claims that Aetna abused its discretion in deciding to

terminate his benefits. In the interest of completeness, the

court turns briefly to those criticisms.

First, Hopper points to Aetna’s first termination letter as

an indication of bias against him. If Aetna’s initial denial of

benefits was the result of impermissible motivations, that

decision was rescinded. Any error in Aetna’s initial decision,

even if ill-intentioned, has no bearing upon whether its

subsequent decision to terminate Hopper’s benefits was an abuse

of discretion.

Hopper also argues that it was impermissible for Aetna to

base its decision to terminate his benefits upon his ability to

do a job that he could only perform with accommodations for his

visual impairment. However, in Terry v. Bayer Corp., the court

13 of appeals explained that it was permissible for a benefits

committee to factor in a claimant’s ability to work with

accommodations when determining that the claimant was “no longer

unable to perform any job for which [he was] qualified by

education, training, or experience.”

(1st Cir.

1998) (internal quotation marks omitted).

Next, Hopper criticizes Aetna for the way in which it

handled the fact that he had been awarded Social Security

disability benefits. As a preliminary matter, Hopper is

incorrect in his assertion that Aetna disregarded his award of

Social Security benefits; Aetna expressly mentioned that award

in its letter of January 29, 2014. See AR, at D 000761.

Moreover, “benefits eligibility determinations by the Social

Security Administration are not binding on disability insurers.”

Morales-Alejandro,

(quoting Pari-Fasano v. ITT

Hartford Life & Accident Ins. Co.,

(1st Cir.

2000)).

In Metropolitan Life, the court of appeals did determine

that the manner in which a plan administrator considered the

claimant’s Social Security benefits to be a factor that weighed

against upholding a decision to terminate plan benefits, but the

circumstances of that case are far different from the

14 circumstances here. In Metropolitan Life, the plan

administrator first urged the claimant to apply for Social

Security benefits and tell the Social Security Administration

that she was unable to work, and then denied her application for

LTD benefits on grounds that she could work. According to the

court, MetLife’s two-faced stance was a concrete expression of

its inherent conflict of interest. Here, Hopper mentions his

receipt of Social Security disability insurance benefits, but

identifies no evidence that Aetna took the same stance as the

plan administrator in Metropolitan Life. Thus, the court

concludes that Aetna’s handling of Hopper’s receipt of Social

Security benefits was not an abuse of its discretion.

Finally, in his argument for a less deferential standard of

review, Hopper points out, correctly, that Aetna is operating

under a conflict of interest created by its role as both the

evaluator of claims for benefits and the entity that pays those

claims. See Metropolitan Life,

(explaining that

when “a plan administrator both evaluates claims for benefits

and pays benefits claims [that] creates [a] conflict of

interest”) (internal quotation marks omitted).

Aetna’s conflict of interest does not change this court’s

standard of review. See Metropolitan Life,

.

15 But, “[i]f a benefit plan gives discretion to an administrator

or fiduciary who is operating under a conflict of interest, that

conflict must be weighed as a factor in determining whether

there is an abuse of discretion.” Metropolitan Life,

(quoting Firestone,

) (emphasis and

internal quotation marks omitted). As to how that factor should

be weighed, the Court declined “to create special burden-of-

proof rules, or other special procedural or evidentiary rules,”

, or to issue “a detailed set of instructions,”

. Rather, it counseled courts to consider a conflict of

interest as one of many factors, and to do so on a case-specific

basis. See

.

Here, Aetna’s conflict of interest is not a significant

factor. As the court has already explained, Aetna’s decision to

terminate Hopper’s LTD benefits was both reasoned and supported

by substantial evidence. In other words, that decision reflects

a supportable appraisal of Hopper’s claim, not Aetna’s conflict

of interest. Moreover, Hopper bears the burden of showing not

just that a conflict existed, but that it influenced Aetna’s

decision. See Cusson, 592 F.3d at 225 (citing Terry,

). He has not done so.

16 Hopper’s principal argument is that this case is analogous

to Metropolitan Life, but it is not. All that the two cases

have in common is a plan administrator with a conflict of

interest. The other factors identified by the court of appeals

in Metropolitan Life, see

, such as MetLife’s

role in its claimant’s application for Social Security benefits,

are just not present here. Accordingly, the court concludes

that while Aetna was under a conflict of interest, that conflict

was not a significant factor in its decision to terminate

Hooper’s LTD benefits, and was clearly not a factor that

rendered its decision an abuse of discretion.

III. Conclusion

For the reasons described above, Aetna’s motion for

judgment on the record, document no. 15, is granted, and

Hopper’s motion for judgment on the record, document no. 13, is

denied. Thus, Aetna is entitled to judgment in its favor on

Count I. That, however, is not the end of this case, as the

parties’ motions address only Count I of Hopper’s complaint.

Accordingly, Hopper shall have ten (10) days from the date of

this order to inform the court whether he wishes to proceed on

17 the remaining counts, and Aetna shall have ten (10) days to

respond.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 5, 2015

cc: Byrne J. Decker, Esq. Scarlett L. Freeman, Esq. John Houston Pope, Esq. Tony F. Sontani, Esq.

18