WILLIAM G. YOUNG, DISTRICT JUDGE
I. INTRODUCTION
Russell Bowden (Bowden) brings this action under the Employee Retirement Income Security Act of 197 4, 29 U.S.C. §§ 1001 et seq. (ERISA), seeking this Courts review of the AETNA Life Insurance Companys (Aetna) decision to deny Bowden benefits under the Group 1 Automotive (Group 1) Long Term Disability Plan (the LTD Plan), administered and underwritten by Aetna. Administrative R. (Admin. R.) 334, ECF No. 19. Bowden seeks relief pursuant to section 1132(a)(1)(B) of chapter 29 of the United States Code, which provides that [a] civil action may be brought ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. See Compl. 5, 9, ECF No. 1. The parties cross-moved for summary judgment, but later agreed to proceed as a case stated. Pl.s Mot. Summ. J., ECF No. 46; Defs. Cross Mot. Summ. J., ECF No. 52; Electronic Clerks Notes, ECF No. 60. Bowden asks this Court to reverse Aetnas decision, remand for further administrative proceedings, and award him attorneys fees and costs as provided by section 1132(g) of chapter 29 of the United States Code. Compl. 9. Aetna and the LTD Plan ask this Court to affirm its decision under the LTD Plan and award it costs. Defs. Cross Mot. Summ. J. 2.
Bowden raises two challenges to Aetnas decision as administrator of the LTD Plan: Bowden claims that Aetna failed to: (i) properly weigh the medical evidence and (ii) consider his contemporaneous award of social security benefits. Pl.s Mem. Supp. Summ. J. (Pl.s Mem.) 1, ECF No. 48. Aetna offers two ripostes. Aetna asserts that (i) Bowden has not met his burden to prove that he is totally unable to fulfill his occupational duties due to his subjective dizziness and (ii) Bowden shifted the burden to Aetna to obtain information to support his claim. Defs. Reply Mem. L. Further Supp. Cross-Mot. Summ. J. (Defs. Reply) 1, ECF No. 59.
Because Bowden failed to bring forward objective evidence to support his claim of total disability, the Court finds and rules that Bowden is not entitled to benefits under the LTD plan. Judgment will enter for Aetna.
II. FINDINGS OF FACT
Group 1 employed Bowden as a car salesman. Admin. R. 2, 45. Group 1s Short Term Disability (STD) and LTD plans, which Aetna administered and underwrote, covered Bowden. Id. at 45, 334, 1097. If Aetna determines that an individual is disabled within the plans terms, the individual is entitled to benefits. Id. at 341. The LTD plan defines total disability as follows: [y]ou cannot perform the material duties of your own occupation solely because of an illness, injury or disabling pregnancy-related condition; and [y]our earnings are 80% or less of your adjusted predisability earnings. Id. (emphasis in the original)
The LTD plan further provides that [a]fter the first 24 months of your disability that monthly benefits are payable, you meet the plans 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. Id. (emphasis in original).
The LTD plan defines material duties as duties that are normally required for the performance of your own occupation; and [c]annot be reasonably omitted or modified. Id. at 355 (emphasis in the original). Working in excess of 40 hours per week, however, is not a material duty. Id.
As a car salesman at Group 1, Bowdens role involved some desk work, walking around the car lot, and light lifting. Id. at 1001. Bowden last worked on February 11, 2013. Id. at 948. He was then 57 years old. See id.
On the same day Bowden stopped working, he visited his primary care physician, Dr. Mark Romanowsky (Dr. Romanowsky). Id. at 654. Due to his reported shortness of breath, in the context of his coronary artery disease and prior stenting, Dr. Romanowsky sent Bowden to a cardiologist for an [e]mergency evaluation with further testing. Id.
In February and April 2013, Bowden visited a cardiologist, Dr. Robert Shulman (Dr. Shulman), with complaints of chest discomfort and dizziness. Id. at 407-08. Dr. Shulman found his physical examinations unremarkable, however, and concluded that his dizziness was not cardiogenic. Id. at 407-08, 1563.
In March 2013, the Ear, Nose and Throat (ENT) specialist Dr. Fred G. Arrigg (Dr. Arrigg) treated Bowden for dizziness on a referral from Dr. Romanowsky. Id. at 1591. Dr. Arrigg summarized Bowdens reported symptoms as follows:
Ever since [the snowstorm during which Bowden worked outside] he has been bothered by this dizzy sensation that comes and goes. He said it is usually present every day but can disappear for most of the day at times.... He does drive but is reluctant to do so on most occasions. He denied any true spinning sensation.... He denied any fluctuation in hearing, new onset tinnitus or fullness in the ears. He also denied any slurred speech, double vision, or mental confusion.
Id. at 431. Dr. Arrigg conducted a Romberg test in order to evaluate Bowdens ability to balance. Id. at 433. The test came back negative, thus indicating that Bowden did not have difficulties balancing. See id. Bowden also underwent rotational chair vestibular studies, which yielded normal results, during a follow-up visit in March 2013. Id. at 433, 436. After Bowdens first visit, Dr. Arrigg opined that Bowdens complaints did not reflect a vestibular disorder. Id. at 433.
In March 2013, Dr. Romanowsky filled an Attending Physician Statement (APS) in support of Bowdens STD claim. Id. at 1607-09. Dr. Romanowsky later concluded in July 2014 in his APS for Bowdens LTD claim that Bowden cannot consistently maintain a work day because of his condition and thus could only work one hour a day, one day a week. Id. at 740.
In May 2013, Bowden saw neurologist Dr. Min Zhu, M.D., Ph.D. (Dr. Zhu) twice for his dizziness and palpitations. Id. at 505, 508. Dr. Zhu ordered an MRI and MRA of Bowdens brain and a carotid artery ultrasound to exclude a cardiac problem or an endocrine tumor. Id. at 507. Those follow-up tests did not reveal any such issues. Id. at 419, 423-24, 507. In her physical exams, Dr. Zhu did not find typical vertigo symptoms or nystagmus. Id. at 506-07, 509. Nystagmus is a vision condition that can impact balance and coordination. Defs. Counterstatement of Material Facts ¶ 125, ECF No. 54. She concluded that Bowden might also be suffering from anxiety. Id. at 510. Dr. Zhu suggested further evaluation by ENT or neuro-otology [specialists] at academic centers and suspected a significant psychologic component in his claims. Id. at 507.
At an appointment on June 7, 2013, Dr. Romanowsky did not find that Bowden had nystagmus and found that Bowden was able to ambulate. Id. at 1515. Bowden returned to Dr. Romanowskys office on June 20, 2013. Id. at 1517. Dr. Romanowsky and Bowden discussed [Bowdens] case with a specialist from the Mayo [Clinic]. Id. at 393, 1517. The Mayo Clinic specialist suggested the diagnosis of Chronic Subjective Dizziness (CSD) and a trial of Fluoxetine. Id. at 393. Fluoxetine is intended to be used for the treatment of major depressive disorder, Obsessive Compulsive Disorder, Bulimia Nervosa, and Panic Disorder. Id. at 591. Dr. Romanowsky also noted in June 2013 that Bowden was willing to try Fluoxetine. Id. at 1517. At that same visit, Dr. Romanowsky observed that Bowden was [s]till not able to work. Id.
At a later visit, on August 12, 2013, Dr. Romanowsky reported that Bowden did not have focal neurological deficits, or nystagmus. Id. at 1542. He also questioned whether Bowden suffered from a chronic anxiety syndrome and remarked that Bowden was undergoing psychotherapy. Id. After an appointment eight days later, Dr. Romanowsky reported that Bowden had focal neurological issues. Id. at 1521. That same day, Dr. Romanowsky recorded that Bowdens upper and lower extremities showed good strength. Id.
After a visit one year later, Dr. Romanowsky noted that Bowdens chief complaint was depression. Id. at 924.
In July 2013, the psychiatrist Dr. Chand Bhan (Dr. Bhan) diagnosed Bowden with anxiety and adjustment disorder but did not specify Bowdens disorders origins. Id. at 493. Dr. Bhan described Bowdens mood as anxious and continued Bowdens treatment of anxiety disorder with Fluoxetine. Id. at 490-491.
In August and December 2013, Bowden visited a vascular neurologist, Dr. Jason Viereck (Dr. Viereck), for the dizziness he reported was progressing. Id. at 500, 503. Dr. Viereck stated that he did not know of a neurological syndrome that is consistent with this clinical picture. Id. at 504. Dr. Viereck described Bowden as well nourished, in no distress, but noted that he has a constant dizziness that is difficult to describe. Id. at 503. Dr. Viereck also observed that Bowden has difficulty concentrating but no depression or anxiety. Id. Bowden reported no changes in hearing and that he had high-pitched tinnitus. Id. In his physical examination, Dr. Viereck found that Bowden could [m]aintain[ ] posture with eyes closed, walk on [his] heels and toes, but could not maintain tandem stance with eyes closed. Id. at 504. He noted that Fluoxetinehelps take the edge off [Bowdens] symptoms. Id. at 503. During Bowdens December 2013 follow-up visit, Dr. Viereck conducted another physical exam of Bowden, and observed that his examination is not significantly changed. Id. at 501. Dr. Viereck concluded that symptomatic treatment with [Fluoxetine ] [wa]s reasonable. Id.
In November 2013, Aetnas physician review of Bowdens STD claim described his occupation as Sales Counselor, which constitutes a light physical demand level occupation. Id. at 1186. The review considered Dr. Romanowskys reports from Bowdens visits from March to August 2013.
In July 2014, Dr. Romanowsky answered questions in Aetnas Capabilities and Limitations Worksheet (CLW) within Aetnas processing of Bowdens LTD claim. Id. at 742. He answered the question [c]an the Patient operate a motor vehicle? affirmatively. Id. Dr. Romanowsky also observed that Bowden could continuously walk and lift up a hundred pounds or more. He further answered yes occasionally about whether Bowden could climb, pull, push, grasp firmly with his hands, and stoop. Id. He noted that Bowden frequently was able to reach forward, carry, perform fine and gross manipulation, sit, and stand. Id. He opined that Bowden has no limitation speaking or hearing but did have occasional blurred vision and had depth perception issues related to his peripheral vision. Id. He noted that Bowden was not able to crawl, kneel, reach above his shoulder, bend, or twist. Id.
In July 2014, Dr. Romanowsky then completed an APS in support of Bowdens LTD claim. Id. at 739. He stated that he first prescribed restrictions on Bowdens work activities on February 21, 2013, due to Bowdens subjective chronic dizziness. Id. at 740. He stated that Bowden cannot consistently maintain a workday because of [his] condition. Id.
From December 2014 until April 2015, Bowden underwent chiropractic treatment for his neck, mid-back, and his headaches. Id. at 541, 590. Bowdens chiropractor, Dr. Steven Saro (Dr. Saro), concluded that Bowden had Hypolordosis of lumbar spine ... [a] sign of disc degeneration. Id. at 571. Dr. Saro also discussed Bowdens multiple medications, some of which cause dizziness as a side effect. Id. at 564. Over these 4 months of frequent visits by Bowden Dr. Saro observed that Bowden in general, considered himself to be in good health and reported exercising moderately on a regular basis. Id.
In July 2014, Aetna conducted an LTD Claimant interview with Bowden. Id. at 283. Bowden reported that:
[H]e drives very little and only when he has too [sic]. He said last year he drove 2 hours to Vermont and felt good when he got there but it took him 6 hours on the way home because he had to many times on the way home and had to take the back roads[.] He is able to take care of his personal hygiene on his own[.] He is able to do house chores to a degree. He cant getting things from the low shelf from the refrigerator. He said he just has to be careful. He is usually able to cook and prepare meals, not all the time but usually. He is able to do his grocery shopping. He said he will walk to the store. He said the inside of the store is overstimulating and gets more dizzy when he does it and takes his time. [H]e tends to bump into people. He said he is not steady at all in a store but its something he does. He said sometimes he will leave prematurely. He carries the groceries home.
Id. at 283. In response to the question of what were the current barriers preventing [him] from returning to [his] occupation, he answered that dizziness interferes [with] his walking [and] thinking and he cant do any part of his previous job. Id. at 327.
In July 2014, Dr. Sally M. Wilkinson (Dr. Wilkinson), Licensed Clinical Psychologist, id. at 390-96, and Dr. Theresa Oney-Marlow (Dr. Oney-Marlow), Physical Medicine and Rehabilitation specialist, conducted internal medical reviews of Bowdens LTD claim for Aetna, id. at 402-11. They both concluded that Bowden had adjustment disorder with mixed anxiety and depressed mood. Id. at 390, 402. Both doctors also came to the result that Bowden did not provide medical evidence that he was functionally impaired from February 2013 until the time of review in July 2014. Id. at 396, 410. Neither reviewer physically examined Bowden. Id. at 390-97, 402-11.
On February 28, 2013, Bowden applied for STD benefits under Group 1s STD Plan, insured by Aetna. Id. at 1076. Bowdens STD claim was approved with a disability onset date of February 12, 2013. Id. at 1115. The STD benefits approval period ran from February 26, 2013 until the maximum benefit end date of August 12, 2013, although Aetna only approved Bowdens claim through April 20, 2013. Id. On April 30, 2013, Aetna closed the STD claim. Id. at 1000. Aetna sent Bowden his notice of denial on May 3, 2013. Id. at 1117-18. On September 16, 2013, Aetna received Bowdens appeal of the denial of his STD benefit claim. Id. at 1143. Aetna upheld the denial on December 11, 2013. Id. at 1193-94.
On June 5, 2014, Aetna received Bowdens application for LTD benefits based on chronic dizziness and chronic rhomboid strain. Id. at 1379. On July 22, 2014, Aetna denied Bowdens LTD claim. Id. at 152-54. On January 16, 2015, Bowden appealed his LTD claim denial. Id. at 707. By letter of August 27, 2015, Aetna upheld the denial. Id. at 179-81.
Since August 12, 2013, Bowden has received Social Security disability benefits, id. at 941, at a monthly rate of $ 1,714 per month, id. at 5.
On August 26, 2017, Bowden filed a complaint in this Court for review of Aetnas decision to deny him LTD benefits. Compl. 1.
III. RULINGS OF LAW
Bowden raises the following challenges to Aetnas final decision: Aetna (i) improperly weighed the medical evidence and (ii) failed to take the award of social security benefits into account. Pl. Mem. 1. In response, Aetna contends that Bowden has not met his burden to prove that he is totally unable to fulfill his occupational duties due to his subjective dizziness. Defs. Reply 8. Aetna further suggests that Bowden improperly attempts to shift his burden to obtain benefit information in support of his claim. Id. at 8.
A. Standard of Review
The Court reviews Aetnas decision to deny Bowden LTD benefits de novo because the LTD Plan does not give Aetna discretionary authority to determine the eligibility for benefits or to construe the terms of the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).
[D]e novo review generally consists of the courts independent weighing of the facts and opinions in [the administrative] record to determine whether the claimant has met his burden of showing he is disabled within the meaning of the policy. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005). The plaintiff bears the burden of proving his disability. Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir. 2010).
The Court does not give special deference to the opinion of Bowdens treating physician. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) ; Orndorf, 404 F.3d at 526 ; Parnagian v. Metlife Disability Ins. Co., Civ. A. No. 14-14254-IT, 2017 WL 4366968, at *1-2, 2017 U.S. Dist. LEXIS 162474, at *2-3 (D. Mass. Sept. 29, 2017) (Talwani, J.).
B. Weight Given to Medical Evidence
Bowden argues that the plan administrator failed to weigh properly the medical opinion evidence and determine whether Bowden could perform the duties of his own occupation. Pls Mem. 13. First, according to Bowden, the subjective nature of his chronic subjective dizziness might not allow for objective testing, so the administrator should have put more weight on the subjective evidence. See Pl.s Mem. at 14-15. Second, Bowden points to two treating physicians reports by Drs. Viereck and Romanowsky that he claims the independent reviewers of his case did not take into account in determining his limitations. Pls Oppn at 6-7. Aetna counters that record shows that both medical reviewers considered all treating physicians reports. Defs. Counter Statement of Facts ¶ 90.
Bowdens first argument falters because he needed to provide objective evidence of his inability to work, not his medical diagnosis. A plan administrator cannot require objective evidence to support [ERISA] claims based on medical conditions that do not lend themselves to objective verification, such as fibromyalgia, but can require objective support that a claimant is unable to work as a result of such conditions. Desrosiers v. Hartford Life & Accident Co., 515 F.3d 87, 93 (1st Cir. 2008) ; see also Tracia v. Liberty Life Assurance Co. of Bos., 164 F.Supp.3d 201, 223 (D. Mass. 2016) (Dein, M.J.) (stating that Liberty reasonably interpreted the Policy to require objective evidentiary support for [plaintiffs] claim of disability); cf. Tebo v. Sedgwick Claims Mgmt. Servs., 848 F.Supp.2d 39, 62 (D. Mass. 2012) (Saylor, J.) (ruling that the denial of benefits was not arbitrary or capricious where the medical reviewers found that the subjective evidence for claimants complete visual disability did not meet the standard set by generally accepted guidelines).
Bowden claims total disability because of the consistent nature of [his] complaints and their debilitating description. Pl.s Mem. 13. Aetna argues that it based its decision on the lack of evidence of a functional impairment. Defs. Reply 4. Aetna asserts that Bowden failed to produce any objective medical evidence that he was functionally impaired from working at his own occupation. Id.
Bowden does not recognize the difference between his debilitating descriptions of his symptoms and objective evidence of his inability to return to his own occupation. Pl.s Mem. 13. In his LTD Claimant Interview, Bowden reported that he drives very little and only when he has to. Admin. R. 20. He further opines that he cant do any part of his job. Id. at 327. He further stated that dizziness interferes [with] his walking [and] thinking. Id. at 22. Nevertheless, these self-reported limitations do not warrant the inference that his CSD symptoms cause total and permanent disability because Bowdens statements do not constitute objective evidence that he cannot perform those tasks.
Second, the record belies Bowdens protest that Aetnas medical reviewers did not consider Drs. Romanowskys and Vierecks findings. See id. at 179, 390-96, 402-411. Aetnas appeal decision letter explains that Aetnas medical reviewers analyzed Drs. Romanowsky and Vierecks reports. Id. at 179. Moreover, Drs. Wilkinson and Oney-Marlows physician review sheets show that they reviewed both doctors findings. Id. at 394, 409. Thus, the record warrants the inference that Aetna reviewed Dr. Romanowskys and Dr. Vierecks opinions to which Bowden refers.
Because the standard is de novo this Court reviews the question of Bowdens disability independently. Orndorf, 404 F.3d at 526. Treating physicians opinions do not necessarily deserve more weight in this analysis. See Gross v. Sun Life Assurance Co. of Can., 880 F.3d 1, 14 (1st Cir. 2018) (citing Orndorf, 404 F.3d at 526 ). Where, however, the disability determination turns on the claimants credibility ... the impressions of examining doctors sensibly may be given more weight than those who looked only at paper records. Id.
The Court finds that most of Drs. Romanowsky and Vierecks reports go to their medical diagnosis of CSD as opposed to whether Bowden credibly claims he cannot work. To the extent that they go to Bowdens ability to work, the Court observes that both doctors contradict themselves in various documents about Bowdens abilities.
Dr. Romanowsky reported Bowden had some rotary nystagmus on vertical gaze in his visit in November 2013. Admin. R. 1450. Dr. Viereck found in August 2014 that Bowden could not maintain [a] tandem stance with eyes closed. Id. at 501. Bowdens precise ailment is not necessarily material for resolving the dispute about his disability to fulfill his job duties. See Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16 (1st Cir. 2003) ([E]ven if the diagnoses are established, [plaintiffs] physical abilities are not so diminished as to prevent her from performing the duties of her own or any other similar occupation.).
Aetna further argues that the objective evidence Bowden presented was inconsistent with the totality of the administrative record. Defs. Reply 3. Aetna asserts that all of his treating doctors, other than Dr. Romanowsky, agreed that he can walk, sit, talk and think straight ... [and] drive a car. These activities are all necessary for him to be able to perform the material duties of his own occupation of a car salesman. Id. at 2.
Even though the treating physicians findings show some limitations of his gaze and gait, they do not reveal how these limitations might affect his ability to fulfill his material duties at his occupation. See Admin. R. 501, 1450. Importantly, they do not explain why Bowden could not modify his duties. These findings did not explain for example, why he could not do some desk work and why he cannot from time to time walk[ ] around in the car lot. Id. at 1001.
Bowden further argues that Dr. Romanowsky found in Aetnas APS and CLW forms from July 2014 that he cannot consistently maintain a workday because of [his] condition. Pl.s Mem. 10 (quoting Admin. R. 740).
Dr. Romanowsky, however, contradicts himself in the same document. For instance, Dr. Romanowsky acknowledges that Bowden could drive a car, constantly lift up a hundred pounds or more, and walk. Id. at 742. Moreover, notwithstanding Bowdens dizziness, Dr. Romanowsky asserted that Bowden could perform repetitive motion, stoop, and stand." Id. These descriptions of Bowdens day-to-day activities do not show any severe limitations. Moreover, Dr. Romanowsky does not explain how he is able to infer Bowdens total disability given the information he provided in the CLW.
The conclusion that Bowdens disability is not just total but also long-term is also inconsistent with Dr. Romanowskys earlier finding that selective serotonin reuptake inhibitors may help mitigate the symptoms. Id. at 924-25. If medication eventually could ameliorate his symptoms, Dr. Romanowsky could not conclude that these symptoms are permanent.
Finally, the record does not show that Dr. Romanowsky, as Bowdens primary care physician, treated Bowden with a frequency and intensity that would be justified were Bowdens symptoms as severe as Bowden characterizes them. Dr. Romanowskys CLW is from June 2014, and, at that time, Bowden had not even scheduled another appointment with him. See id. at 739, 742.
Likewise, Bowden put forward Dr. Vierecks findings to show his limited functionality. Pl.s Mem. 16. Bowden, however, quoted Dr. Vierecks report out of the context of its overall findings. Admin. R. 500-04. Far from finding that Bowden is totally disabled, Dr. Viereck determined that Bowden had normal motor strength and sensory abilities. Id. at 504. He did not prescribe any medications for Bowden but suggested that Bowdens current treatment with Fluoxetine was reasonable. Id. at 503-04. Even if Dr. Vierecks finding about Bowdens inability to maintain a tandem stance with his eyes closed were read out of context, Dr. Viereck never opined on how his finding affects Bowdens fulfillment of his job duties.
Dr. Vierecks finding needs to be compared to other treating physicians findings on Bowdens purported impairment. From December 2014 until April 2015, Dr. Saro treated Bowden. Id. at 541, 590. In March 2015, Dr. Saro found in general, the patient considers himself to be in good health and reported that Bowden state[d] that he performs moderate exercise on a regular basis. Id. at 590.
Thus, Drs. Romanowsky and Vierecks findings do not show that Bowden was totally disabled.
C. Aetnas Failure to Address Bowdens Social Security Disability Insurance Benefits
Bowden argues that the plan administrator failed to take into account that Bowden was granted Social Security disability benefits. Pl.s Mem. 20. [B]enefits eligibility determinations by the Social Security Administration, however, are not binding on disability insurers. Richards, 592 F.3d at 240 (quoting Pari-Fasano v. ITT Hartford Life and Accident Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000) ). To qualify for disability benefits under a plan, a claimant must satisfy the plans definition of disability, not the definition of disability under the Social Security Act. See Matías-Correa v. Pfizer, Inc., 345 F.3d 7, 12 (1st Cir. 2003). A positive decision under the Social Security Act (the Act) should not be given controlling weight except perhaps in the rare case in which the social security statutory criteria are identical to the criteria set forth in the insurance plan. Morales-Alejandro v. Medical Card Sys., Inc., 486 F.3d 693, 699-700 (1st Cir. 2007) (quoting Pari-Fasano, 230 F.3d at 420 ). The claimant has to show that the relied-upon Act criteria and the plans relevant criteria are identical. Id. If the claimant does not argue that the plans criteria are identical to the Acts criteria, the claimant has waived that strand of argument. Richards, 592 F.3d at 240. Nevertheless, the fact that Social Security has awarded benefits to a claimant is relevant evidence of disability. Cowern v. Prudential Ins.Co. of Am., 130 F.Supp.3d 443, 468 (D. Mass. 2015) (Burroughs, J.).
Aetna argues that Bowden failed to compare the Social Security Administrations (the Administration) standards for awarding Social Security disability benefits to the applicable disability test for his own occupation. Defs. Reply 9. Bowden counters that Aetna failed to distinguish its LTD claim decision from the Social Security disability decision. Pls Mem. 20. Bowden asserts that both Social Security and the LTD Plan use attendance, persistence and pace to define total disability. Pl.s Mem. 13 n.4.
Bowden does not compare the LTD Plan and the Acts criteria to support giving the Administrations decision controlling weight. He simply relies on one criterion used under the Act. Id. To qualify for disability under the LTD Plan, however, Bowden needed to show, among other things, that he could not perform the material duties of a car salesman. See Admin. R. 341. The LTD Plan defines material duties as duties which [c]annot be reasonably omitted or modified. Admin. R. 355. As matter of fact, the Acts criterion attendance, persistence, and pace, which Bowden cites, is far more generous to claimants than the LTD plans definition of disability because the LTD Plan does not deem a claimant disabled if their employer can reasonably omit or modify their duties. See id. Here, Bowden failed to prove that he cannot modify his work day to accommodate breaks. Therefore, the Social Security Administrations decision to grant disability benefits does not control this case.
Bowden further complaints that Aetna does not even mention[ ] the occurrence in its denial letter. Pl.s Mem. 20. He asserts that Aetna should have retrieve[d] medical records from the [Social Security Disability Insurance] file, which [he] had authorized. Id. Aetna asserts that Bowden had the burden of proof to provide all information that purportedly supports his disability claim. Defs. Reply 8.
Under ERISA, an administrator must provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant. 29 U.S.C. § 1133(1). The plan administrator is not entitled to ignore the [Social Security Disability Insurance] award simply because the formal ... award letter was not before it. Cowern, 130 F.Supp.3d at 468.
Plan administrators must inform claimants that their file is missing their Social Security Disability Insurance letter and furnish claimants with the opportunity to send the letter as well as any other information the plan administrator needs to evaluate the Administrations disability determination. See id. ERISAs notice requirements are not meant to create a system of strict liability for formal notice failures; rather, the beneficiary need only be supplied with a statement of reasons that, under the circumstances of the case, permit a sufficiently clear understanding of the administrators position to permit effective review. Tebo, 848 F.Supp.2d at 56 (quoting Terry v. Bayer Corp., 145 F.3d 28, 39 (1st Cir. 1998) (holding that review process is sufficient if denial letter defines plans disability standard, states specific reasons for denying claim and, if plan administrator is in direct contact with claimant, assuring understanding).
Even if the plan administrator fails to furnish the requisite notice, however, the claimant must show prejudice in order to gain relief. See id. at 56 ; see also Dickerson v. Prudential Life Ins. Co., 574 F.Supp.2d 239, 249 n.12 (D. Mass. 2008) (citing Terry, 145 F.3d at 39 ) ) (The Court also notes that, even if the letters were technically deficient, [the claimant] would have to prove actual prejudice in order to be entitled to relief.). A claimant fails to show prejudice when the claimant has not presented any evidence that implies that a different outcome would have resulted had the notice been in formal compliance with the regulations. Tebo, 848 F.Supp.2d at 56 (quoting Terry, 145 F.3d at 39 ).
Although here Bowdens award letter is not included in the Administrative Record, Aetnas administrative record shows that Bowden has been receiving Social Security disability benefits. Admin. R. 5. Thus, even if Bowden did not provide Aetna with his award letter, the plan administrator acquired actual knowledge of Bowdens award of Social Security benefits through its inquiry about his then-current income. Id.
Aetnas failure to ask for specific information about Bowdens Social Security award in its letter denying Bowdens LTD claim does not aid Bowden. See id. at 152-54. Aetna argues the letter encouraged [Bowden] to provide diagnostic testing or narrative reports detailing how Bowdens condition impacted his daily life. Defs. Mem. Law Oppn Pl.s Mot. Summ. J. And Supp. Their Cross-Mot. Summ. J. (Defs. Mem.) 16, ECF No. 53. The denial letter states that it was determined that there is a lack of medical evidence to support impairment from the performing the material duties of your own occupation. Admin. R. 153. Further, the denial letter offers to review any additional information you care to submit. Id. Thus, Aetna not only informed Bowden of its decision on the evidence, but also indicated that he should send Aetna additional information supporting his claim. As a consequence, the totality of the record persuades this Court that Aetna made clear to Bowden why it denied his claim and what they needed to review it.
Finally, Bowden did not show how, even if Aetna had mentioned the Social Security award in its denial letter and retrieved the medical records contained in his Social Security file, see Pls Mem. 20, it would have perfected Bowdens LTD claim. See Dickerson, 574 F.Supp.2d at 249 n.12. As such, Bowden failed to demonstrate that Aetnas process caused him prejudice.
D. Recovery of Attorneys Fees and Costs
Bowden requested attorneys fees and costs in his complaint and Aetna asked for costs in its cross-motion for summary judgment. Compl. 9; Defs. Cross Mot. Sum. J. 2. Neither party briefed the issue. See generally Pl.s Mem; Defs. Mem; Pl.s Mem. Oppn Defs. Cross-Mot. Summ. J. And Reply Further Supp. Mot. Summ. J., ECF No. 57; Defs. Reply. Under section 1132(g)(1) of chapter 29 of the United States Code, this Court has discretion to allow a reasonable attorneys fee and costs of action to either party. Giannone v. Metropolitan Life Ins. Co., Civ. A. No. 02-11119 (RGS), 2004 WL 1588310, at *1, 2004 U.S. Dist. LEXIS 13280, at *4 (D. Mass. 2004) (Stearns, J.); see also Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 33 (1st Cir. 2003) (reviewing grant or denial of attorneys fees for abuse of discretion).
The Court proceeds to consider whether Aetna ought receive its costs using the same general guidelines which apply to fees and costs in its interpretation of 29 U.S.C. § 1132(g)(1), which speaks to both. The First Circuit has identified five non-exclusive factors that a court should consider when ruling on an application for fees and costs under ERISA:
(1) the degree of bad faith or culpability of the losing party; (2) the ability of such party to personally satisfy an award of fees; (3) whether an award would deter other persons acting under similar circumstances; (4) the amount of benefit to the action as conferred on the members of the pension plan; and (5) the relative merits of the parties positions.
Gray v. New England Tel. and Tel. Co., 792 F.2d 251, 257-258 (1st Cir. 1986). The Court need not consider every factor, and no one factor is dispositive. See id. at 258.
The First Circuit has thus rejected a presumption in favor of awarding fees to a prevailing plaintiff in ERISA benefits cases. Colby v. Assurant Emp. Benefits, 818 F.Supp.2d 365, 384 (D. Mass. 2011) ( Colby II); see also Colby v. Assurant Emp. Benefits, 635 F.Supp.2d 88, 91 (D. Mass. 2009) ( Colby I) (awarding plaintiff attorneys fees and remanding the case to the plan administrator for reconsideration).
The first prong justifies an award of attorneys fees in cases where the non-prevailing plaintiff has acted in bad faith. For example, the First Circuit in Twomey held that the district court did not abuse its discretion when the district court denied a prevailing defendant attorneys fees because the plaintiff did not sue in bad faith and the district court did not want to deter other plaintiffs with valid claims. 328 F.3d at 33. Similarly, in Gray, the First Circuit affirmed the district courts denial of attorneys fees on the ground that the Court would not equate failure of proof with bad faith. 792 F.2d at 259-60.
Here, Bowdens claim was not without any merit. His claim was not frivolous: the fact that one administrator had awarded him disability benefits could make him reasonably believe he could use the award as objective evidence for his claim of total disability with another administrator. See Admin. R. 5, 46. Further, Aetna lacked discretion under the LTD plan, so Bowdens claim faced de novo, as opposed to arbitrary and capricious, review. Cf. Giannone, 2004 WL 1588310, at *2 & n.4, 2004 U.S. Dist. LEXIS 13280, at *7-8 & n.4 (pointing out that the arbitrary and capricious standard is a high legal barrier to a successful district court claim). Bowden had some grounds to believe that a new set of eyes might have weighed his evidence differently since his complex medical record showed inconsistent assessments of physicians. See id. at *2 & n.4, 2004 U.S. Dist. LEXIS 13280, at *7 & n.4 (determining that plaintiff faced an uphill battle to making her case based on a complex medical record that confused some of her physicians). Thus, the first prong does not justify awarding costs to Aetna.
The second factor was intended primarily to limit the award of attorneys fees against parties who could not afford them. Colby II, 818 F.Supp.2d at 385 ; Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 227 (1st Cir. 1996) (An inability to afford attorneys fees may counsel against an award but the capacity to pay, by itself, does not justify an award. (internal citation omitted) ), abrogated on other grounds by Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). Here, the Social Security administration has awarded Bowden benefits throughout the review of his LTD claim. Admin. R. 5. This suggests that Bowden cannot afford Aetnas costs. Thus, his likely inability to pay weighs against ordering him to pay Aetnas costs.
The third prong of deterrence weighs in favor of Bowden in this case. [T]he deterrent value of a fee award is considerable. Colby II, 818 F.Supp.2d at 385. Aetnas medical reviewers diagnosed Bowden with adjustment disorder with mixed anxiety and depressed mood, which may cause psychological impairments. Admin. R. 390, 402. If the Court ordered Bowden to pay Aetnas costs, other similarly situated claimants - some of whom may have stronger claims than Bowden -- might not try to seek review of their claims if they face a much higher financial risk than claimants with physical disabilities which are easier to prove. See Colby II, 818 F.Supp.2d at 385 ([P]olicyholders benefit from plan administrators equal treatment of claims arising from physical and mental disabilities.). Thus, the first, second, and third prongs of the five-factor test counsel against an award of costs to Aetna. Accordingly, the Court denies Aetnas motion for costs.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Aetnas cross-motion for summary judgment, ECF No. 52, and DENIES Bowdens motion for summary judgment, ECF No. 46, and the parties requests for attorneys fees and costs, ECF Nos. 1, 52.
SO ORDERED.
The case stated procedure allows the Court to render a judgment based on the largely undisputed record in cases where there are minimal factual disputes. In its review of the record, [t]he [C]ourt is ... entitled to engage in a certain amount of factfinding, including the drawing of inferences. TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st Cir. 2007) (quoting United Paperworkers Intl Union Local 14 v. International Paper Co., 64 F.3d 28, 31 (1st Cir. 1995) ).
References to Aetna as a party include both Aetna and the LTD Plan.
Romberg is a diagnostic test through which to assess neurological functions for balance caused by central and peripheral vertigo. Defs. Counterstatement of Material Facts ¶ 24, ECF No. 54.
Chronic Subjective Dizziness syndrome is a poorly-defined neurological condition that is not currently considered a mental disorder although psychiatric comorbidity (particularly anxiety disorder) is quite common. Admin. R. 1158.
In the CLW, Dr. Romanowsky did not give any indication of how long Bowden would be totally disabled. Admin. R. 742.
Bowden reported to Dr. Saro in February 2015 that he had been very active with shoveling snow which is aggravating his condition. Admin. R. 565.
Because judgment will enter against Bowden, he may not recover his attorneys fees. Cf. Gross v. Sun Life Assurance Co., 880 F.3d 1, 22 (1st Cir. 2018) (ruling that fees eligibility depended on a certain degree of success, such as changing to a less deferential standard of review and remanding the claim back for reconsideration of claim for benefits).