United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge.
Lisa Meiman, filed suit against Defendant, Aetna Life
Insurance, under the Employee Retirement Income Security Act,
29 U.S.C. § 1001 et seq., after Aetna
terminated the long-term disability benefits it had been
paying her for over ten years. Meiman seeks to recover the
denied benefits, plus prejudgment interest, and asks the
Court to clarify her rights to future benefits. (Doc. 1,
¶¶ 5, 30).
matter is now before the Court on Plaintiff's Motion for
Judgment on the Administrative Record. (Doc. 45). Deciding
that Motion requires the Court to determine whether Aetna
correctly found that Meiman could perform a “reasonable
occupation” as defined by the terms of the Disability
Plan. Considering the medical evidence's consensus that
she can perform sedentary work with minor accommodations and
a 2016 transferable skills analysis that provides examples of
sedentary occupations that meet the Plan's wage
requirements, the Court concludes that Aetna was correct in
denying benefits and finds that Plaintiff's Motion should
Factual and Procedural Background
Meiman, now fifty-four years old, was employed with Delta
Airlines for around fifteen years until multiple knee
injuries forced her to take long-term disability. (AR 607,
703, 740, 1674). Meiman first injured her right knee in 2003
and underwent a partial medial meniscectomy soon after the
injury and an osteochondral autograft transfer procedure in
March 2005. (AR 670, 718, 731-32, 848, 970, 1002). Meiman
then injured her left knee in late-November 2005 while
assisting a customer in a wheelchair. (AR 731-32). After her
left-knee injury, a doctor restricted Meiman to sedentary
work activity. (AR 629-31). Aetna approved Meiman's
initial disability claim in June 2006 when it found that she
could not perform the demands of her “own
occupation” as a ticket agent (medium work). (AR 349).
treatment for those knee injuries led Aetna to conclude on
multiple occasions between December 2006 and October 2016
that Meiman could not perform “any reasonable
occupation” as defined by the terms of the Plan. In
March 2006, orthopedic surgeon Dr. Angelo J. Colosimo
diagnosed joint space narrowing, otherwise known as
osteoarthritis, in Meiman's right knee. (AR 859). About a
year later, Meiman had a third surgery on her right knee. (AR
732, 1002). In a September 2007 follow-up visit, Dr. Colosimo
noted that Meiman would remain restricted to working four to
six hours per day until she had a left-knee arthroscopy as
her left knee was also showing signs of osteoarthritis. (AR
after the September follow up, Aetna conducted its first
transferable skills analysis to find examples of sedentary
jobs that Meiman could perform that also paid a wage greater
than sixty percent of Meiman's adjusted pre-disability
earnings. (AR 1628-30). While the transferable skills analysis
identified potential jobs, a subsequent labor market survey
indicated that the available jobs failed to meet the
Plan's wage requirement. (AR 1622). As such, Aetna again
found Meiman disabled. (Id.).
Colosimo continued to deem Meiman disabled, but in
late-September 2007 and October 2007, she saw two doctors who
both found that she could perform light work. (AR 718-27,
731-35). Accordingly, Aetna conducted a second transferable
skills analysis in February 2008 to identify potential jobs.
(AR 1613-17). Aetna identified one such example occupation.
(AR 1613, 1615-16). But a subsequent labor market survey
concluded that the potentially available positions did not
meet the Plan's wage requirements, so Aetna again found
Meiman disabled. (Id.).
underwent the left-knee arthroscopy procedure in November
2008. (AR 806-07). And in November 2009, Dr. Colosimo
indicated that Meiman could perform most of the physical
requirements of sedentary work for up to six hours per day.
(AR 592). An administrative law judge for the Social Security
Administration felt differently and in April 2013 found that
Meiman could perform full-time sedentary work with a few
additional restrictions. (AR 1501-11). In July 2013, Dr.
Colosimo noted that Meiman had received injections in her
knees due to reported swelling, pain, and weakness, but he
also noted that her radiographs “did not look
horrible.” (AR 1470, 1522-23). While he found that
Meiman could perform the physical requirements of sedentary
work, he without explanation concluded that she was still
disabled. (Id.). Shortly after this visit, an
internal nurse reviewer for Aetna reviewed the records and
determined that Meiman could work full time. (AR 305).
consequence, Aetna conducted a third transferable skills
analysis in February 2014 to identify potential occupations.
(AR 132-35, 1430-32). The analysis identified four sample
occupations that Meiman could possibly perform that also met
the Plan's wage criteria. (AR 1431). The sample
occupations were, however, considered only fair or potential
matches for Meiman. (Id.). Aetna therefore continued
to pay disability benefits and did not conduct a labor market
survey as it had done in the past. (Id.).
October 2015, a new claim representative took over
Meiman's claim. The new representative contacted Meiman,
and while he noted that Aetna had not yet identified
alternative gainful occupations she could perform, he
discussed a more favorable July 2015 attending physician
statement from Dr. Colosimo with her. (AR 68). That attending
physician statement found that Meiman could perform the
physical requirements of sedentary work with some additional
restrictions, but again, and without explanation, insisted
that she was permanently disabled. (AR 68, 1022-23).
Colosimo's practice of issuing cursory disabling opinions
continued, and in a capabilities and limitations worksheet
from January 2016, he once again indicated without
explanation that Meiman could perform the physical
requirements of sedentary work for only six hours per day.
(AR 1305). An internal nurse reviewer for Aetna who examined
the worksheet felt that there was no medical evidence
suggesting that Meiman could not work a full eight hours. (AR
166). In March 2016, Meiman's claim representative
contacted her and informed her that Aetna was unsure as to
why Dr. Colosimo had limited her to only six hours of work
and explained to her that if Aetna could determine that she
could work eight hours and identify gainful employment, then
she would no longer be eligible for benefits. (AR 66). During
this conversation, Meiman revealed that she could lift items
like a gallon of milk and that she helped with her kids,
cooked dinner, and that she had been asked by her town's
mayor to serve on the city board for code adjustment appeals.
after this conversation, Aetna conducted two rounds of
surveillance on Meiman. Surveillance from April 19 through
April 21, 2016, revealed that Meiman neither moved in a
guarded manner nor used any visible assistive devices. (AR
1221-22). She was seen walking up and down the stairs of her
deck, walking her dog, walking around her backyard, and
watering her plants using a hose. (Id.). Meiman was
also seen bending to pick up items from the ground, wheeling
the garbage bin to the end of the driveway, and driving to
pick-up takeout food. (Id.). The second round of
surveillance from June 6, 8, and 9, 2016, showed Meiman
driving, walking to her mailbox, sitting on her front porch
steps, and walking with her child to a nearby elementary
school. (AR 1212-13).
after the surveillance, in July 2016, Meiman underwent an
independent medical examination with Dr. V. James Sammarco, a
board-certified orthopedic surgeon. (AR 1205-1210). Dr.
Sammarco found that her knee arthritis was the only ailment
affecting her ability to work. (Id.). After
reviewing the surveillance video, Dr. Sammarco stated that
Meiman's reported symptoms were in “stark
contrast” to what she was seen doing in the video. (AR
1208-09). Dr. Sammarco concluded that Meiman could perform
the physical requirements of medium work and could work a
full eight-hour day. (AR 1208-10). Aetna then commissioned a
fourth transferable skills analysis based on Dr.
Sammarco's findings. (AR 1202-03). This 2016 analysis
identified five potential occupations that Meiman could
perform that also met the adjusted wage requirements.
(Id.). Three of the example occupations were