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Kao v. Aetna Life Insurance Co.

August 25, 2009


The opinion of the court was delivered by: Irenas, Senior District Judge


In this ERISA*fn1 action, Plaintiff Shao-Hui T. Kao ("Kao") seeks disability benefits to which she asserts entitlement under her Long-Term Disability ("LTD") benefits plan. The LTD benefits plan in question is funded by Defendant Towers Perrin Forster & Crosby, Inc. ("Towers"). Defendant Aetna Life Insurance Company ("Aetna") is the LTD claims administrator.

Presently before the Court are the parties' Cross-Motions for Summary Judgment. For the reasons that follow, Defendants' Motion for Summary Judgment will be granted, and Kao's Motion for Summary Judgment will be denied.*fn2



Kao is a 59 year old woman who holds a bachelor's degree in botany, a master's degree in computer science, and a doctorate in bacteriology. (AR*fn3 520) From 1986 to 1998, Kao worked as a computer programmer for several companies. (See AR 547) Beginning in 1998, she worked for Towers as a software developer/systems architect. (AR 301, 548) In that capacity, she was responsible for the "full life cycle development" of retirement valuation software. (AR 301) Her tasks included software design, coding, and testing, as well as providing user support. (AR 301) In November, 2004, while Kao was still employed with Towers, she was diagnosed with breast cancer. (See AR 531) She underwent chemotherapy and a lumpectomy. (See AR 531, 1235)

At the time of Kao's diagnosis, she was covered by a LTD benefits plan funded by Towers and administered by Broadspire Services, Inc. ("Broadspire"). (See AR 1246-47) The governing plan documents vested Broadspire with "full power, authority and discretion to administer the Plans and to construe and apply all of its provisions on behalf of [Towers,]" including deciding issues of benefits eligibility. (Towers*fn4 011)

Kao's first absence from work attributable to her cancer and related treatment was on January 11, 2005. (See AR 1246-47) Thereafter, she applied to Broadspire for LTD benefits. (AR 1235)

The plan at issue defines "disability" as: To maintain eligibility for LTD benefits, you must be unable to perform each and every duty of your job for the first 130 weeks you are disabled (26-week elimination period plus two years of LTD). The Plan's definition of disability changes after 130 weeks. After 130 weeks, to be considered disabled you must be both of the following:

* Unable to perform any job for which you are reasonably suited based on your education, training and experience*fn5

* Under the continuing care of a licensed medical practitioner.

(Towers 53) Thus, the policy contains two different definitions of disability; one definition applies during the first two years of LTD, and another thereafter.

Broadspire determined that Kao was eligible for LTD benefits. (AR 1246-47) Following the required 26-week waiting period, Kao received LTD benefits for the two year period beginning July 12, 2005.*fn6 (See AR 1246-47, 500-02)

In addition, Broadspire informed Kao that she might be eligible for Social Security disability benefits, and offered her access to professional representatives to assist her in pursuing those benefits.*fn7 (AR 441) Thereafter, the Social Security Administration determined that Kao was indeed disabled, and awarded her monthly disability benefits beginning in July, 2005.*fn8

(AR 504-07)


By December, 2006, Aetna had replaced Broadspire as claims administrator for the Towers LTD plan. (See AR 206) Like Broadspire before it, Aetna was vested with broad discretion to construe and apply the provisions of the plan, and make eligibility determinations. (See Towers 011)

In a letter dated December 8, 2006, Aetna informed Kao that it was "gathering the necessary information to determine if [she would] remain eligible for continued LTD benefits[]" after July 12, 2007, when the second definition of disability would take effect. (AR 206-07) Enclosed with the letter were various forms for Kao and her physicians to complete and return to Aetna. (See AR 207)

In response to Aetna's letter, Kao and her doctors supplied: (1) a Resource Questionnaire completed by Kao; (2) an Attending Physician's Statement and an Evaluation of Physical Abilities form, both completed by Dr. Generosa Grana, one of Kao's oncologists; (3) a partial Attending Physician's Statement completed by Dr. Samuel Hughes, another of Kao's oncologists; and (4) various medical office records from Kao's physicians.

Resource Questionnaire

On January 5, 2007, Kao completed a "Resource Questionnaire" regarding her health and related issues. (AR 517-23) The form called for Kao to describe, in her own words, why she was unable to perform her occupation or otherwise engage in any gainful employment. (AR 517) She responded as follows:

My mind is often hazy. I have difficulties concentrating, thinking and recalling facts. I have problems falling asleep and staying asleep due to aches, pains and stress. I suffer from fatigue throughout the day. I will have problems commuting to work because I always have to rest in the car even after short trips to the grocery stores. Also, my shoulder hurts after short walks in the mall which I avoid unless absolutely necessary. I get nauseous easily too.

(AR 517-18) Citing the same health issues, Kao also stated that she did not "anticipate returning to [her] previous occupation or any other occupation in the near future[.]" (AR 520)

The questionnaire included a checklist of chores, which called for Kao to denote those tasks which she performed on a regular basis. (AR 519) Kao indicated that she regularly went grocery shopping, did laundry and dishes, and climbed stairs. (Id.) On the other hand, she reported that she did not cook, dust, vacuum, garden, mow the lawn, shovel snow, or perform vehicle maintenance. (Id.)

Kao also wrote that she took three or four 15-minute walks daily and drove an average of four miles per day. (Id.) Finally, Kao listed a variety of medications which she took daily, including Arimidex, which is a hormonal therapy intended to reduce the likelihood of cancer recurrence. (See id.)

Dr. Generosa Grana

Dr. Generosa Grana, one of Kao's oncologists, completed a pair of forms provided by Aetna - an Attending Physician's Statement ("APS") and an Evaluation of Physical Abilities ("EPA") form. (See AR 531-33) Both forms were signed on February 5, 2007.

On the APS, Dr. Grana noted Kao's primary diagnosis of breast cancer. (AR 531) According to Dr. Grana, the complications of the illness were arthralgia and osteopenia.*fn9

(Id.) Dr. Grana indicated that Kao's prognosis was "good[,]" but that she had not yet "achieved Maximum Medical Improvement[.]" (AR 532) According to Dr. Grana, "fundamental changes in [Kao's] medical condition" could be expected in three to four months. (Id.)

As to restrictions or limitations upon Kao's activities, Dr. Grana wrote: "patient still suffering from the lingering side effects of her disease process and treatment regimen, mostly involving arthralgia[.]" (Id.) The APS also called for Dr. Grana to rate Kao's level of physical impairment, on a scale of one ("No limitation of functional capacity/capable of heavy work") to five ("Severe limitation of functional capacity/incapable of sedentary work"). (Id.) Dr. Grana appraised Kao's level of physical impairment as four, corresponding to "[m]arked limitation of functional capacity/capable of sedentary work." (Id.)

On the EPA form, Dr. Grana indicated that Kao's overall strength capacity was sedentary.*fn10 (AR 533) A rating of sedentary, in that context, meant occasional lifting, carrying, pushing, and pulling of one to ten pounds. (Id.)

Dr. Grana further rated Kao as capable of reaching, walking, standing, sitting, handling, fingering, and repetitive foot movement "frequently," meaning one-third to two-thirds of the time. (Id.) But, Dr. Grana determined Kao was only "occasionally" (up to one-third of the time) capable of stooping, crouching, squatting, kneeling, crawling, and climbing stairs. (Id.) Finally, Dr. Grana reported that Kao was not released back to her prior occupation because she "require[d] additional time to fully recover from treatment[.]" (Id.)

Dr. Samuel Hughes

Dr. Hughes, another of Kao's oncologists, supplied a partial APS dated February 14, 2007, to Aetna. (AR 534) Like Dr. Grana, Dr. Hughes believed Kao's prognosis was good, but that she had not yet "achieved Maximum Medical Improvement[.]" (Id.) Dr. Hughes anticipated fundamental changes in Kao's condition in five to six months. (Id.) Using the same rating system as Dr. Grana, Dr. Hughes rated Kao's level of physical impairment at level five, signifying "[s]evere limitation of functional capacity/incapable of sedentary work[.]" (Id.)

Dr. Marc Fishman

At Aetna's request, hematologist/oncologist Dr. Marc Fishman completed a peer review of Kao's records on March 26, 2007. (AR 109-11) That process included a peer-to-peer review with Dr. Grana via telephone on March 19, 2007. (AR 110) In addition to the information gleaned from Dr. Grana directly, Dr. Fishman considered Kao's Resource Questionnaire, the APS and EPA prepared by Dr. Grana, the partial APS authored by Dr. Hughes, and medical records supplied by Kao's physicians. (AR 109) Dr. Fishman concluded that the data before him "[f]ail[ed] to support impairment for the entire time frame[.]" (AR 110)

Dr. Fishman noted Kao's complaints of arthralgias, but determined that she was capable of working in a sedentary occupation.*fn11 (Id.) He noted that Kao's breast cancer had not recurred and that Dr. Grana's physical examination of Kao in October, 2006, was "essentially unremarkable[.]" (Id.; see AR 470-71) Finally, Dr. Fishman concluded that Kao's daily Arimidex medication would not impact her ability to work. (AR 110-11)

Employability Assessment Report and Labor Market Survey

Next, at Aetna's request, Randall Norris prepared an Employability Assessment Report ("EA") and a Labor Market Survey ("LMS") to determine what occupations Kao could perform, and whether those positions were available in her geographic area at a salary of at least 60% of Kao's pre-disability annual income. (See AR 576-91) The EA and LMS were dated April 3, 2007, and April 17, 2007, respectively. (AR 576, 585)

In preparing the EA, Norris relied on Dr. Marc Fishman's peer review of March, 2007, for the proposition that Kao was capable of sedentary work.*fn12 (AR 577, 582) After reviewing Kao's education and work history, Norris identified occupations suitable for her skill set, including: (1) Computer Programmer, Chief;*fn13 (2) Research Assistant; (3) Alumni Secretary; (4) Branch Manager; and (5) Institution Director. (AR 580-83)

Norris then surveyed the availability of appropriate employment within a 50 mile radius of Kao's residence. (AR 585) After a series of contacts with area employers, Norris concluded that suitable positions were available in Kao's geographic area, paying annual salaries exceeding 60% of her pre-disability salary. (AR 588)

Initial Denial Letter

By letter dated April 19, 2007, Aetna informed Kao of its determination that she did not meet the definition of disability applicable to individuals claiming LTD benefits beyond 130 weeks. (AR 603-06) Hence, as of July 12, 2007, Kao would no longer receive LTD benefits. (AR 605)

In the letter, Aetna explained that there were "insufficient quantitative clinical findings documented to support a level of functional impairment that would render [Kao] unable to perform any occupation." (Id.) Aetna further stated that Kao had "no evidence of recurrent cancer of the breast and [she was] only taking the Arimidex for breast cancer[,]" medication which did "not impact [her] ability to work." (AR 604) In sum, according to Aetna, Kao was "capable of working in a sedentary occupation." (Id.)

In reaching those conclusions, Aetna particularly relied upon the medical opinion of Dr. Fishman, including Dr. Fishman's representation that "Dr. Grana does not feel that [Kao's arthralgias] would limit [her] from working in a sedentary occupation." (AR 604) Aetna also referred to the EPA form completed by Dr. Grana for the proposition that Kao was capable of working in a sedentary occupation. (Id.)

Aetna further explained that, based on its vocational assessment, jobs suitable for Kao included: (1) Systems Programmer; (2) Database Administrator; (3) Senior Oracle CRM; (4) Scientist; and (5) Programmer Analyst.*fn14 (AR 605) As to those positions, Aetna wrote, "[Kao's] current skills and aptitudes, as demonstrated through [her] former work experience, indicate that [she is] capable of engaging in competitive employment... as long as the actual duties of the positions are consistent with [her] functional capacity." (Id.) Moreover, according to Aetna, those positions existed within Kao's labor market. (Id.)

The letter notified Kao of her right to appeal the adverse decision, and requested that, with respect to any appeal, she supply: current medical documentation, which includes quantitative data, such as, but not limited to the following:

* Additional clinical evidence that documents physical impairments from performing any occupation.

(AR 605-06 (emphasis in original))

Finally, the letter advised that "the review on appeal [would] consist of a fresh review of [Kao's] claim based on the information already existing in [her] file, along with any additional documentation, records, documents, comments or other ...

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