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Borrousch v. Aetna Life Insurance Co.

United States District Court, N.D. Indiana, South Bend Division

June 4, 2018




         Plaintiff, Dennis Borrousch, brings this ERISA claim against Aetna Life Insurance Company seeking review of Aetna's termination of long term disability benefits under the plan sponsored by his former employer. Borrousch and Aetna have filed cross motions for summary judgment, the resolution of which will conclude this case. I must apply the deferential arbitrary and capricious standard of review in this case. After conducting a lengthy review, I find that the termination of benefits and denial of appeal are supported by a reasonable explanation based upon evidence in the administrative record. Therefore, I will grant Aetna's motion for summary judgment.

         Undisputed Facts

         Borrousch worked for Boyd Gaming from 1988-July 31, 2013, working his way up to Director of Operations of its casino and hotel. [C.F. 1740-41.][1] He was diagnosed with HIV in 1986, but continued working for many years thereafter. [C.F. 15.] Borrousch eventually retired in July 2013 due to chronic symptoms of HIV including neuropathy, cognitive impairment, chronic fatigue, and depression. [Compl., DE 1, at ¶¶ 9-10.]

         As an employee of Boyd, Borrousch was covered under a long-term disability (LTD) insurance policy issued by Aetna as part of his benefit plan. [Id. at ¶¶ 6-7.] The plan delegates discretionary authority to Aetna to make benefit determinations. [Plan 36.] The plan's “Test of Disability” is:

From the date that you first became disabled and until monthly benefits are payable for 24 months you meet the test of disability on any day that:
- You cannot perform the material duties of your own occupation solely because of an illness, injury or disabling pregnancy-related condition; and - Your earnings are 80% or less of your adjusted predisability earnings.

After the first 24 months of your disability that monthly benefits are payable, you meet the plan's test of disability on any day you are unable to work at any reasonable occupation solely because of an illness, injury or disabling pregnancy-related condition. [Plan 49 bolding and italics in original.]

Reasonable Occupation

This is any gainful activity:

- For which you are, or may reasonably become, fitted by education, training, or experience; and

- Which results in, or can be expected to result in, an income of more than 60% of your adjusted predisablity earnings. [Plan 68 (bolding in original).]

         Aetna originally denied Borrousch's request for benefits, but following a lawsuit and notice of settlement, Aetna notified Borrousch on August 31, 2015, that it would start paying $2, 495 monthly LTD benefits under the policy. [C.F. 1527-30, 341-42.] Aetna paid these benefits throughout and a little beyond the 24-month “own occupation” benefit period (from January 27, 2014 through February 17, 2016). [DE 1, at ¶¶ 13-14; Plan 49.]

         During this time frame, Borrousch also applied for disability benefits from the Social Security Administration (“SSA”). On June 5, 2015, Borrousch received a letter from the SSA stating:

You said that you became unable to work on 07/05/2013 because of HIV Aides [sic.], depression, mental confusion and brain fog, chronic inflammation and joint pain, and psoriatic arthritis. While you stopped work because of your condition, you do not meet our requirements for disability until 1/30/2015. Specifically, we look at your ability to function with your medical condition. Then we consider your age, education and past work for determining disability. The rules allow us to find you disabled as early as 07/30/2014 which is near your 55th birthday.

[C.F. 1510.] On December 14, 2015, Dr. Nagle performed weight loss surgery on Borrousch. [C.F. 977-80.]

         On January 8, 2016, Annette Swain, Ph.D. (Clinical Psychology, Neuropsychology) conducted a review of all the record evidence at the request of Aetna. Borrousch received a letter from Aetna dated February 19, 2016, stating his LTD benefits were terminated effective 2/17/16 for the reasons explained in the letter. [C.F. 379.] The letter states that Aetna's review included, but was not limited to, medical records from Dr. Ronald Gonzales (Borrousch's primary care physician and infectious disease specialist), Dr. Gregory Sarlo (Psychology), Northstar Healthcare, and lab results from his medical providers. [Id.]

         Because I am reviewing the reasonableness of the denial, the language in Aetna's letter is important and I will quote it at length below:

You were sent for an independent Neuropsychological evaluation and testing with Dr. Gregory Sarlo on 11/12/15 by your Attending Physician, Dr. Gonzales. A clinical consultant as well as a Board Certified Clinical Psychologist/Neuorpsychologist reviewed all the available medical information provided by your medical providers. Based on medical records on file there is insufficient medical evidence for an impairment that would preclude you from reaching, handling, and frequent talking. There was no evidence of cognitive impairments or impairing medication. There does not appear to be any physical or neurological findings that would support any sensory deficits of either hand or lower extremities concerning standing and fine motor manipulation.
After a complete review of the Neuropsychological Evaluation and your file, we contacted Dr. Gonzales on 1/7/2016 to discuss why he indicated you were unable to work. After Dr. Gonzales reviewed your information, he concluded that you were capable of working in a full time occupation, both physically as well as cognitively. Your behavioral health difficulties appear to be pharmacologically managed and you continue to attend therapy. Your records do not support that your symptoms are functionally impairing or require any restrictions and limitations in your daily functioning.
Our clinical assessment of your medical records in the file do not endorse any restrictions or limitations [t]hat would preclude you from work activities that would be considered sedentary in physical demand.

[C.F. 380.] Aetna then set forth the results of a wage survey, finding that Borrousch could be a manager (touring production); manager (golf club); and booking manager, which were jobs within his physical capacity, in the labor market in his area, and salaries which are equal or greater than $29.07 an hour (60% of his adjusted pre-disability earnings). [Id.]

         The two doctors referred to in Aetna's letter are Dr. Sarlo and Dr. Gonzales. During Dr. Sarlo's independent psychological evaluation on November 12, 2015, he administered a number of tests. Borrousch's performance on one test, the WAIS-IV, indicated average verbal comprehension skills, perceptual reasoning abilities, working memory abilities, and processing speed skills. [C.F. 1379.] His executive functioning skills appeared intact and his performance indicated no difficulties in motor functioning. [C.F. 1387, 1390.] However, Dr. Sarlo also noted in his report that Borrousch was experiencing a high level of stress and anxiety, that he felt overwhelmed, and that he had a “poor ability to retain and recall visual, motor, and working memory information” and his emotional impairments, severe depression, anxiety, and chronic medical conditions “prevent him from working.” [C.F. 1390-91.] Dr. Sarlo opined that Borrousch had difficulty with “delayed memory and bilateral functioning” and that it was “highly likely memory loss will continue with progression of HIV.” [C.F. 1391-92.] Dr. Sarlo recommended that Borrousch apply for disability benefits due to his physical health concerns and emotional functioning issues. [C.F. 1392.]

         The other doctor referred to in Aetna's letter is Dr. Gonzales, Borrousch's long term primary care provider. Dr. Gonzales had previously submitted an Attending Physician's Statement (“APS”) back on August 20, 2014, stating Borrousch suffered from HIV, moderate cognitive dysfunction, recent memory loss, HIV-associated dementia, polyneuropathy, and major depressive disorder, and concluding he was unable to work and was totally disabled. [C.F. 2680-83.] Dr. Gonzales did another APS on October 15, 2015, confirming the same, and concluding Borrousch had no ability to work and that he expected his disability to be permanent. [C.F. 1468-69.]

         During Dr. Swain's review for Aetna, she reached out and had a telephone conversation with Dr. Gonzales on January 7, 2016. Dr. Swain reported that Dr. Gonzales said Borrousch had a strong remote memory, but poor recent memory, and that he believed Borrousch's cognitive and emotional problems were brought on by his highly stressful job. [C.F. 3339-40.]

         Before terminating Borrousch's benefits, Aetna sent Dr. Swain's physician review report to Dr. Gonzales for his review and comment. When asked if he agreed with the conclusions in the report, Dr. Gonzales checked the box “yes.” [C.F. 1369.] When asked if he agreed that Borrousch is capable of performing full-time sedentary physical demand level work ...

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